Modern Coach Corp. v. Faver

• Decision Date: 21 October 1952
• Docket Number: No. 34274,No. 2,34274,2
• Court: Georgia Court of Appeals
• Parties: MODERN COACH CORP. v. FAVER

Page 497

73 S.E.2d 497

87 Ga.App. 221

MODERN COACH CORP. v. FAVER.

No. 34274.

Court of Appeals of Georgia, Division No. 2.

Oct. 21, 1952.

Rehearing Denied Nov. 19, 1952.

Syllabus by the Court.

1. A suit may be brought against a motor common carrier, in the county wherein it maintains its principal office and place of business, regardless of whether or not such carrier has an agent in the county where the cause of action originated.

2. Whether or not the driver of the defendant's bus complied with the statutory duty imposed on the defendant of exercising extraordinary diligence to prevent injury to the plaintiff, a passenger in its bus, is for a jury under all the facts appearing from the plaintiff's petition, as amended.

Mrs. J. E. Faver (hereinafter called the plaintiff) brought suit, in the City Court of Albany, against Modern Coach Corporation (hereinafter called the defendant), in which she sought to recover damages on account of certain personal injuries alleged to have been sustained when the bus in which she was a passenger overturned on the highway some eight miles north of Americus but in Schley County. The plaintiff alleged that the defendant was a Georgia corporation engaged in carrying passengers for hire in this State by motor vehicle, and that its principal office and place of business was in Dougherty County. The plaintiff set up that the defendant's bus driver was negligent in the operation of the bus and that as a result thereof she was injured.

The plaintiff set up in the original petition that the bus on which she was a passenger was going north towards Atlanta on U. S. Highway 19, and when the driver had rounded a curve, and had reached a point some 75 feet north of the intersection of U. S. Highway 19 with State Highway 271, 'an automobile traveling in the opposite direction, ran into the rear of another automobile also going in that direction, and the first of said cars, traveling in the opposite direction and on its right hand side had stopped on said public highway for the purpose of making a left turn into State Highway 271,' and that the last automobile, coming from the north to the south, meeting this bus, driven by George Bivins, 'upon striking a car proceeding ahead of said automobile in the same direction, * * * swerved to the left of the center line approximately 2 feet over the center line of said highway,' and thus struck the automobile of Bivins. It was set up that the bus struck the automobile driven by Bivins with the left front wheel, swayed from one side of the road to the other, traveled 260 feet from the point of impact went into a ditch on the left side of the road, and turned over. The plaintiff amended her petition, added count two, and alleged further that the bus was driven at a rapid, unlawful, and reckless speed, and that her injuries resulted from the bus driver's lack of diligence and wherein he operated said bus in violation of certain laws of this State relating to the operation of motor vehicles on the roads of this State. The plaintiff alleged that the bus rounded a curve on said highway, going north, at a speed of 80 miles an hour, and turned to the left and across the center line of the road, instead of keeping to his right, and ran into the 'fifth automobile going in the opposite direction, one right after the other * * *. All of said automobiles proceeding in the opposite direction on said highway [and] at said time and place being on the right hand side, and had stopped on said highway for the purpose of making a left turn into Georgia Highway No. 271' from U. S. Highway 19. The plaintiff set up that the defendant's driver struck 'a car proceeding in the opposite direction driven by one George Bivins, and the said automobile driven by the said Bivins being on its own right-hand side.' The plaintiff set out various grounds of negligence, and also alleged that the bus company was negligent per se in violating Code, § 105-112, which provides that 'The rule of the road requires travelers with vehicles, when meeting, to each turn to the right', and this was a violation of Code, § 18-204, that 'A carrier of passengers must exercise extraordinary diligence to protect the lives and persons of his passengers'. Thereafter, the plaintiff amended again, struck count one, and proceeded on count two alone.

The defendant demurred generally and specially to the plaintiff's petition, contending that it did not appear that the defendant failed to exercise due diligence towards her, and because it appeared that the negligence of a third person in failing to turn his car to the right and give the bus driver his part of the road caused the accident. The defendant renewed its demurrers and demurred to the plaintiff's petition as amended and to count two thereof. The defendant contended therein that it affirmatively appeared that the court was 'without jurisdiction * * * since the cause of action originated in Schley county, and the petition fails to allege that there was no agent of defendant, a motor common carrier, in Schley County,' and that the court was without jurisdiction and further proceedings would be void. Also the defendant demurred because it appeared that the plaintiff was injured by reason of the negligence of George Bivins; and as it affirmatively appeared that the plaintiff was not injured as a result of the negligence of this defendant, but of George Bivins, there was not enough in the petition by which to amend; that the original petition shows that George Bivins was guilty of gross negligence, in not having his car under proper control and in not keeping a lookout, and in turning his car to the left across the center of the road into the path of the bus; and that thus his negligence was the sole and proximate cause of the accident, and the petition was insufficient and did not show enough to authorize said amendment adding count two. This defendant set up in its demurrer that the petition contained contradictory statements, in that the allegation that the bus ran into the rear of an automobile traveling in the opposite direction is contradictory to the allegation that it struck an automobile stopped on the highway for the purpose of making a left turn into Highway No. 271; and that, therefore, count two is duplicitous in its description of what occurred. Thereafter, the defendant renewed its demurrers and demurred likewise to count two.

The trial judge, on August 5, 1952, overruled all of the defendant's demurrers to count two and the renewed demurrers, both general and special. To this ruling and judgment the defendant excepts to this court.

Burt & Burt, Albany, for plaintiff in error.

S. B. Lippitt, Albany, for defendant in error.

GARDNER, Presiding Judge.

1. This was a suit brought by Mrs. J. E. Faver (the defendant in error here) against the Modern Coach Corporation (the plaintiff in error). The action is for damages on account of certain personal injuries sustained by Mrs. Faver as a result of the alleged negligence of the driver of the coach company. The defendant is a corporation, organized and existing under the laws of Georgia, with its principal office and place of business in Dougherty County, and engaged in the business of transporting passengers by motor vehicles over the roads and highways of Georgia, over regularly established routes, passing through several counties, including Schley County. It appeared from the petition that she was injured when the bus overturned on U. S. Highway 19, some eight miles north of Americus, but in Schley County. The petition did not show that the defendant carrier did not have an agent in Schley County, where the cause of action originated, that is, it did not appear from the allegations of the petition whether or not the coach company had an agent in Schley County, the suit being brought against the corporation in the county of its principal office and place of business, and where it was incorporated, namely Dougherty County.

It is insisted by the defendant motor carrier that the venue of this action, insofar as the petition showed, lies in Schley County, and not in Dougherty County where the suit was filed. This is so, it is contended, because the defendant is a common carrier of passengers and the cause of action originated in Schley County, and it does not appear from the petition that the carrier did not have an agent in Schley County, and that this fact must appear in order for the City Court of Albany to have jurisdiction of the case.

A suit against a common carrier by rail for damages on account of an injury sustained by reason of the negligence of the railroad company in the operation of one of its trains would have to be brought in the county where the injury took place, if the company had an agent in that county. Central of Georgia R. Co. v. Alford, 154 Ga. 863, 115 S.E. 771; McCall v. Central of Georgia R. Co., 120 Ga. 602, 48 S.E. 157. Otherwise, the action would be futile, the court not having jurisdiction of the case and any judgment therein void. See Southern Ry. Co. v. Brock, 115 Ga. 721, 42 S.E. 65; Roy v. Georgia R. & Banking Co., 17 Ga.App. 34. And a petition brought in a county other than the county wherein the cause of action originated, which does not show that the carrier has no agent in the county where the accident occurred would be properly dismissed on demurrer. Jordan v. Georgia S. & F. R. Co., 105 Ga. 274, 30 S.E. 748; Gilbert v. Georgia R. & Banking Co., 104 Ga. 412, 30 S.E. 673. However, the fact that it is mandatory on a plaintiff to bring such an action against a railroad company in the county where the cause of action arose where it has an agent therein is based upon the fact that Code, § 94-1101 provides that all railroad companies 'shall be' sued by anyone injured by reason of the negligence of its servants in the county in which the injury occurred, whereas Code, § 68-618 provides that 'Action against motor common carriers, except in those cases w...