Radcliffe v. Boyd Motor Lines, Inc.

• Decision Date: 10 September 1973
• Docket Number: No. 3,No. 48389,48389,3
• Citation: 201 S.E.2d 4,129 Ga.App. 725
• Parties: Nancy C. RADCLIFFE v. BOYD MOTOR LINES, INC
• Court: Georgia Court of Appeals

Page 4

201 S.E.2d 4

129 Ga.App. 725

Nancy C. RADCLIFFE v. BOYD MOTOR LINES, INC.

No. 48389.

Court of Appeals of Georgia, Division No. 3.

Sept. 10, 1973.

Rehearing Denied Sept. 26, 1973.

Anthony A. May and Robert M. Margeson, III, Leesburg, Burt, Burt & Rentz, H. P. Burt, Albany, for appellant.

Landau, Davis & Frakas, Leonard J. Spooner, Albany, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

On March 2, 1972 Mrs. Nancy Radcliffe brought suit in Dougherty Superior Court against Boyd Motor Lines, Inc., alleging that the defendant is a Georgia corporation with its principal office and place of business in Terrell County, but that it owned and operated Albany Speedway in Dougherty County, and by reason of the defendant's negligence plaintiff's minor child was killed June 11, 1971 while she and her daughter were spectators and invitees at an automobile race conducted on the speedway when a wheel on one of the participating automobiles came off and went up into the bleachers, striking plaintiff's child.

Service on the defendant was made May 16, 1972 (1) by serving a man who lived in a trailer on the speedway, ostensibly as a caretaker, and (2) by sending a second original and copy to Terrell County, where the copy was served by the sheriff on an officer of the defendant.

Defendant moved to dismiss on the ground that the venue and jurisdiction of the action was properly in Terrell County and not in Dougherty County, and further moved the quash the service on the ground that there had been no lawful or proper service perfected. Evidence was submitted in support of and in opposition to the motion before the judge without a jury.

The motions were sustained and plaintiff appeals. Held:

1. (a) Generally, a corporation must be sued in the county wherein it has its registered office and place of business, or where it maintains its principal office and place of business. Code Ann. § 22-404 (Ga.L.1968, pp. 565, 584).

(b) The venue of a tort action against a corporation is, under the provisions of Code Ann. § 22-5301 (Ga.L.1968, pp. 565, 820), in the county where the cause of action originated. The provision appeared in substantially the same form and to the same effect in the Code of 1933 as § 22-1102, in the Code of 1910 as § 2259, and in the Code of 1895 as § 1900. In Speed Oil Co. v. Aycock, 188 Ga. 46(1), 2 S.E.2d 666 the Supreme Court held: 'The legislature has power to declare the residence of corporations. Section 22-1102 of the Code (now § 22-5301) is not unconstitutional.' The suit was properly brought in Dougherty County, and may proceed there if there is lawful and valid service on the defendant.

2. (a) Has there been lawful service? If there has not been, no lawful judgment could be rendered in the case. 'In order for the court to obtain jurisdiction of a defendant, he must not only have been served in the manner pointed out by law, but there must be a legal return of such service.' Wood v. Callaway, 119 Ga. 801, 803, 47 S.E. 178, 179; Albright-Prior Co. v. Pacific Selling Co., 126 Ga. 498(1), 55 S.E. 251; Authur Murray, Inc. v. Smith, 124 Ga.App. 51(2), 183 S.E.2d 66. '(T)he statutory method of service is exclusive.' Central Ga. Power Co. v. Parnell, 11 Ga.App. 779, 782, 76 S.E. 157, 158.

(b) 'Service shall be made by delivering a copy of the summons attached to a copy of the complaint as follows: (1) if the suit is against a corporation incorporated or domesticated under the laws of this State, to the president, or other officer of the corporation, secretary, cashier, managing agent, or other agent thereof.' CPA § 4; Code Ann. § 81A-104(d).

In a tort action brought in the county wherein the cause of action originated, 'service of such suits may be effected by leaving a copy of the writ with the agent of the defendant, or if there be no agent in the county, then at the agency or place or business.' (Code Ann. § 22-5301.

The return of service by the Deputy Sheriff of Dougherty County was: 'I have this day served the defendant Boyd Motor Lines, Inc., a corporation, with a true copy of the within petition and summons by handing same to David Boyd, defendant's agent at defendant's place of business, Albany Speedway, Dougherty (County).'

The evidence before the judge, sitting as the trier of fact, authorized a finding that David Boyd, a son of the president of the corporation, and on whom service was purportedly made, was employed full time by Firestone Tire & Rubber Company in Albany, and that he had been permitted to place a trailer or mobile home on the speedway property and live in it as a convenience in getting to and from his work. He was not on the defendant's payroll, was not an agent of the defendant, and performed no service for it unless it could be said to be that of a mere caretaker. The son, knowing that the zoning ordinances prohibited his living in the trailer or mobile home on the property and that electric service would not be provided unless he was a caretaker, in making application to obtain electric service, represented that he was a caretaker. He personally paid the bills for the electric service. There was thus some evidence which would sustain an inference that he was a caretaker, a mere servant at most, but no evidence authorizing a finding that he was an agent. It has been uniformer held that for the service to be valid it must be made on an agent of the corporation, and not on a mere servant or caretaker. Smith v. Southern Ry. Co., 132 Ga. 57, 63 S.E. 801; Georgia R. & Power Co. v. Head, 150 Ga. 177, 103 S.E. 158; Burkhalter v. Ford Motor Co., 29 Ga.App. 592, 116 S.E. 333; Dowe v. Debus Mfg. Co., 49 Ga.App. 412, 413(2a), 175 S.E. 676; Southeastern Fidelity Ins. Co. v. Heard, 123 Ga.App. 635(3a, b), 182 S.E.2d 153.

( c) While a tort action may be brought in the county where the injury was inflicted, if service can be perfected, 'A private business corporation created under the laws of this state, with its principal office in a given county, cannot be sued in another county for a trespass committed therein, when it has no agent, agency, or place of business in the latter county.' Tuggle v. Enterprise Lbr. Co., 123 Ga. 480, 51 S.E. 433. If the evidence had authorized a finding that David Boyd was in charge of the 'business' of defendant in Dougherty County, a finding of agency would have been authorized. Central Ga. Power Co. v. Parnell, 11 Ga.App. 779, 782, 76 S.E. 157, supra. But there was no such evidence.

The attempted service was upon one who was, at most, a mere servant, and he could not, under the law, receive a valid service on behalf of the corporation. The servant was erroneously described in the return as the 'defendant's agent,' and further asserts that he was 'at defendant's place of business.'

We are guided by the return as to the mode of service attempted. This is particularly true since the statute provides for several kinds of service and the officer should specify the mode of service in his return. Southeastern Fidelity Ins. Co. v. Heard, 123 Ga.App. 635(2), 182 S.E.2d 153, supra. See also Wood v. Callaway, 119 Ga. 801, 47 S.E. 178, supra.

Was this service sufficient as service by leaving the copy 'at the agency or place of business?' We do not regard the return as being one of service in that mode, but as being a return of service on a purported agent. We shall examine the record and the law applying to the return as that of service by leaving the copy at the agency or place of business.

First, it is to be observed that the Supreme Court has held that the terms 'agency' and 'place of business' have the same meaning, and are synonymous. Tuggle v. Enterprise Lbr. Co., 123 Ga. 480, 481, 51 S.E. 433, supra. Likewise 'office' and 'place of business' are held to be synonymous. General Reduction Co. v. Tharpe, 11 Ga.App. 334, 75 S.E. 339.

The president of the defendant corporation testified that it had leased the land on which the speedway was operated until the end of 1971 and that it had operated the speedway through the racing season of that year, but that thereafter had neither scheduled nor held any races, that the rental was paid by the month until April, 1972, when the lease was surrendered up to the lessor because the company had been unable to comply with the requirements of the State Fire Marshal in providing safe bleachers, etc. at the track, and had been unable to comply with the requirements of the Department of Public Safety for obtaining a license to operate during the year 1972. These requirements would involve a substantial rebuilding of the stands at an expense which the company could not meet, and the obtaining of insurance on which it could not pay the premium. For these reasons it had never obtained a license to do business in 1972 and had never reopened for business. He testified that the company engaged in no business activity of any kind in Dougherty County since the close of the 1971 racing season beyond the payment of rent to the lessor until the lease was surrendered up. It had no officer, agent or employee in that county. His son, David, who lived in a trailer on the property, was not employed or paid by the company and in fact had no duties to perform for it. The company had given up its obligation to maintain the race track when it surrendered up the lease.

The phrase 'place of business' is to be given the usual ordinary meaning attached to the words. Generally, it means a place where the public, having business to transact with the owner, are impliedly or expressly invited to come for that purpose. Roberts v. State, 4 Ga.App. 207(4), 60 S.E. 1082. It is a place where business is conducted. Jenkins v. State, 4 Ga.App. 859(1), 62 S.E. 574. It is a place where a plant, together with a superintendent and a force of laborers is located; a place for the transaction of such business as was necessary for the operation of the plant. General Reduction Co. v. Tharpe, 11 Ga.App. 334, 75 S.E. 339, supra....