Petroleum Carrier Corporation v. Carter

• Decision Date: 18 May 1956
• Docket Number: No. 15775.,15775.
• Citation: 233 F.2d 402
• Parties: PETROLEUM CARRIER CORPORATION, Appellant, v. Hattie CARTER and Bessie Threatt, Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

233 F.2d 402 (1956)

PETROLEUM CARRIER CORPORATION, Appellant, v. Hattie CARTER and Bessie Threatt, Appellees.

No. 15775.

United States Court of Appeals Fifth Circuit.

May 18, 1956.

John G. Kennedy, Jr., Savannah, Ga., Kennedy & Sognier, Savannah, Ga., for appellant.

James P. Mozingo, III, Darlington, S. C., Sidney S. Tison, Jr., Hartsville, S. C., H. Alva Brumfield, Baton Rouge, La., Tison & Tison, Hartsville, S. C., for appellees.

Before HUTCHESON, Chief Judge, and RIVES and BROWN, Circuit Judges.

HUTCHESON, Chief Judge.

The suits from the judgments in which this appeal comes were filed in the Superior Court of Long County, Georgia, and thence removed to the United States District Court. While the cases were tried together, separate judgments were entered on separate verdicts of juries awarding to the plaintiff in each case damages for the death of her son in an automobile collision, resulting from the negligence of defendant-appellant.

Stating that the record contains a great abundance of errors, of which it does not seek review, and that the errors of which it seeks review are so glaring and so basic that complaint of anything else is wasteful, appellant thus prefaces its discussion of the three errors¹ it assigns:

"The case of appellees against appellant simply has no basis whatsoever.

The proven negligence shored up with every possible advantage is nothing more than pure sham. Admitting it to be true, it did not and could not have possibly proximately caused the damage complained of. Moreover, appellees settled and fully satisfied their claim during the trial, which trial was, in fact, an attempted adjudication of the rights of a party over which the court had no jurisdiction."

For the reasons hereafter briefly stated, we cannot agree with these views. Indeed, we think the assignments are without merit and that in the state of the record the first two are unsubstantial, if not frivolous.

Invoking in support of its jurisdictional point the established principle that in a removal case the federal court's jurisdiction is derived from, and depends upon, the jurisdiction of the state court, and citing Georgia statutes and decisions dealing with jurisdiction and venue in Georgia courts, appellant insists that, though the Superior Court of Long County, where it had an agent, admittedly had jurisdiction of the subject matter of the suit, it did not have jurisdiction of the person of the defendant. Admitting that appellant was properly served in Fulton County, appellant concedes that the Superior Court of that county would have had jurisdiction over its person. Admitting, too, that Georgia Code Annotated, § 68-801 allows a non-resident motorist to be sued in the county where the accident took place, here Long County, appellant yet contends that in the state of the pleading and proof, it cannot be held that defendant was subject to suit thereunder.

Appellees point out: that the Non-Resident Motorist Act was enacted for the purpose of designating some person within the State of Georgia upon whom service could be had in the event of an automobile accident arising out of the use of its highways; that, use of the highways is the equivalent of the appointment of the Secretary of State; and that, in addition, appellant had designated the Secretary and he was served, American Fidelity & Casualty Co. v. Farmer, 77 Ga.App. 166, 48 S.E.2d 122. They insist too, that there was jurisdiction over appellant's co-defendant as a non-resident motorist with venue in Long County, Georgia, Ga.Code, § 68-803, as to him; and that in Georgia joint tortfeasors may be sued jointly in the county where any of them may be, Albany Coca Cola Bottling Co. v. Shiver, 63 Ga. App. 755, 12 S.E.2d 114. Finally they invoke the Non-Resident Motorist Act, § 68-803, providing that all suits relating to the use of highways of this state shall be brought in the county in which the cause of action originated.

We think it plain that on this record there is no basis for this claim of error and that it must be rejected out of hand.

Appellant's second point, that plaintiffs settled with and released Slade, its joint tort-feasor, during the trial and thereby terminated plaintiffs' claim against appellant, is on this record, no more substantial. It is true that a release of the cause of action as to one joint tort-feasor will ordinarily be held to release and terminate the cause of action as to the others. It is equally well settled, however, that where, as here plaintiffs, in consideration of an amount paid by one joint tort-feasor as a partial contribution toward the full amount of damages owed by both, executes a covenant not to sue him, the cause of action as to the other or others is not released and terminated.

Appellees insist, and the record supports their insistence: that all that occurred here was an...