Railey v. State Farm Mut. Auto. Ins. Co.

Decision Date07 September 1973
Docket NumberNo. 48364,No. 3,48364,3
PartiesMyrtie J. RAILEY et al. v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY et al
CourtGeorgia Court of Appeals

Cook & Palmour, A. Cecil Palmour, Summerville, for appellants.

Frank M. Gleason, Rossville, Pittman, Kinney, Kemp, Pickell & Avrett, L. Hugh Kemp, Dalton, for appellees.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

On July 31, 1970 Helen Beverly Talley drove an automobile into the rear of one operated by Myrtle Jean Railey which had been stopped at a street intersection in obedience to a red light. On April 3, 1971, Myrtle Jean Railey and her husband, Calvin C. Railey, brought suits in the State Court of Walker County against Helen Beverly Talley, seeking damages for a neck and back injury alleged to have been suffered in the collision. The pleadings in each case were substantially the same.

No service of any kind in either suit was perfected on the defendant Talley within 30 days from the issuance of the summons. The sheriff had attempted service, but could not find her in the county and entered a non est inventus at to his return.

Plaintiffs Railey had State Farm Mutual Automobile Insurance Company served with a copy of the complaint and summons, as if it were a defendant, under the provisions of the Uninsured Motorist Statute, Code Ann. § 56-407.1(e), that being a company with which the plaintiffs had a liability insurance policy. Service was made on it April 5, 1971.

On May 4, the defendant Talley not having been served and not having appealed, State Farm filed pleadings in its own name, as was authorized by the Uninsured Motorist Statute, urging that the complaint failed to state a claim on which relief could be granted and that since there had been no service of the complaint and summons on the defendant Talley, the court had no jurisdiction to proceed in the matter.

Thereafter, State Farm filed a third party complaint against Liberty Mutual Insurance Company and Carolyn Jean Caldwell, alleging that the vehicle which the defendant had operated on the occasion involved was owned by Southern States Fleet Leasing, Inc., which had leased it to Carolyn Jean Caldwell, that the vehicle was insured under a policy provided with Liberty Mutual under the rental agreement, that Caldwell had permitted the defendant Talley to drive it, and further alleging that Liberty Mutual had investigated the accident, conceded liability and made substantial payments to the plaintiff for her actual damages.

Liberty Mutual filed a special plea to the jurisdiction, urging that it was not a resident of Walker County, that there was a lack of venue as to it, that there had been a lack of service on the defendant Talley, and that State Farm had no standing to bring the third party complaint. Subject to these and other defenses, Liberty Mutual answered, counterclaimed against State Farm for its expense in defending against the third party claim, and cross claimed against Carolyn Jean Caldwell alleging that she had violated the lease contract in permitting the defendant Talley to drive the car.

On November 29, 1971 Liberty Mutual moved to dismiss and for judgment on the pleadings.

Plaintiff amended July 29, 1972, alleging that the defendant Talley had removed herself from the State of Georgia and could not be served therein; that she was residing at a stated address in Tennessee, and sought an order for service by publication under the provisions of CPA § 4(e)(1)(iii), Code Ann. § 81A-104(e)(1)(iii). State Farm filed objections to the granting of the order, urging that the provisions of CPA § 4(e)(1)(iii) had no application to this type of action, and that if so it would be unconstitutional. Liberty Mutual likewise filed objections, urging inapplication of the statute to this action and that, if it were applicable it was unconstitutional. Carolyn Jean Caldwell filed a similar response.

On August 18, 1972, an order for service by publication on Talley was granted. Summons for publication was issued August 22, 1972.

On September 5, 1972, an order was entered naming Bobby Lee Cook, James F. Neal, Aubrey B. Harwell, Jr., and the Sheriff of Davidson County, Tennessee as parties who might serve the defendant personally with a copy of the complaint and summons, but it was never done.

Orders were later entered striking as parties to the action Southern States Fleet Leasing, Inc., Carolyn Jean Caldwell, and striking the counterclaim against State Farm, and the third party claim against Caldwell.

On April 5, 1973 an order was entered revoking the order for service by publication since 'the court is of the opinion that application for the order was made after the statute of limitation had run on plaintiff's claim.' The petitions were dismissed, and plaintiffs appeal.

The issue on appeal is whether there was service on the defendant Talley under which the plaintiffs could proceed with the actions.

We must consider, in this connection, whether (a) that statute of limitation had run against the actions, (b) the attempted service by publication was valid and (c) whether the plaintiffs may proceed to obtain judgments in personam relying upon service by publication.

1. (a) An action for injury to the person must be brought within two years after the right of action accrues. Code Ann. § 3-1004. The statute is tolled, however, where the defendant removes himself to another state, until he returns to this state to reside. Code § 3-805. This exception applies alike to actions in contract and in tort. Code § 3-1005.

( b) The tolling by reason of removal from this state applies only if the removal makes it impossible to perfect service on the defendant. It has generally been held that if process could be lawfully served on the defendant, thus enabling the plaintiff to proceed with his action, the period of the defendant's absence from the state is not to be excluded from theperiod of limitation, and the statute continues to run during the absence. Commonwealth Loan Co. v. Firestine, 148 Ohio St. 133, 73 N.E.2d 501, 172 A.L.R. 993; Arrowood v. McMinn County, 173 Tenn. 562, 121 S.E.2d 566, 119 A.L.R. 855; Anno. 94 A.L.R. 485 and 119 A.L.R. 859.

(c) Whether the statute to limitation has run, therefore, is dependent upon whether plaintiffs had available a method of perfecting lawful service on the defendant, though she has removed herself to another state and no longer resides in this state.

( d) Generally, one who seeks to obtain an in personam judgment must accomplish personal service on the defendant, for otherwise there is a lack of due process. Art. VI, Sec. XIV, Par. VI, Constitution (Code Ann. § 2-4906); Young v. Morrison, 220 Ga. 127, 137 S.E.2d 456. That this was not accomplished is conceded.

( e) Is there any available method by which plaintiffs may proceed? There is the Nonresident Motorist Act which provides for service on the Secretary of State as the agent for a nonresident who uses the public streets and roads of this state for vehicular travel. But it is alleged in the complaint that the defendant 'is a resident of Walker County, Georgia,' and it appears that her change in this status occurred after the infliction of the injury. In that situation the Nonresident Motorist Statute has no application. Young v. Morrison, 220 Ga. 127, 137 S.E.2d 456, supra; Dora-Clayton Agency, Inc. v. Barnhizer, 119 Ga.App. 23, 165 S..e.2d 873; Dill v. Guthrie, 120 Ga.App. 527(1), 171 S.E.2d 359. This is true though the defendant may have two places of residence, one in Georgia and another in a sister state (Thompson v. Abbott, 226 Ga. 353, 174 S.E.2d 904), or where he temporarily sojourns in another state (Davis v. Holt, 105 Ga.App. 125, 123 S.E.2d 686), for by its terms that Act precluded service under its provisions on one who is a resident of this state. Indeed there was no effort here to comply with the Nonresident Motorist Act in serving the defendant.

(f) There is also the Long Arm Statute found in Ga.L.1966, p. 343, as amended by Ga.L.1970, p. 443 (Code Ann. § 24-113.1) which permits service on nonresidents in the particular situations stated therein, and '(a) person subject to the jurisdiction of the courts of the State under section 24-113.1 . . . may be served with a summons without the State, in the same manner as service is made within the State, by any person authorized to make service by the laws of the State . . . in which service is made or by any duly-qualified attorney, solicitor, barrister, or equivalent in such jurisdiction.' Code Ann. § 24-115. Here no service by publication is authorized and if made it is ineffectual under that Act if an in personam judgment is sought.

Furthermore, the Supreme Court held in Thompson v. Abbott, 226 Ga. 353, 357, 174 S.E.2d 904, that where, as here, the defendant was a resident of this state at the time the tort was committed and thereafter removed himself to another state, the Long Arm Statute has no application and service under it cannot lawfully be perfected on the defendant.

( g) Finally, there is the Civil Practice Act § 4(e)(1)(iii) (Code Ann § 81A-104(e)(1)(iii), which provides for service by publication in a specified manner as an alternative service and under which the service here was obviously attempted. However, CPA § 4(i) (Code Ann. § 81A-104(i)) provides that 'The provisions for service by publication herein provided shall apply in any action or proceeding in which service by publication now or hereafter may be authorized by law.' Service by publication is not authorized for the obtaining of an in personam judgment in a tort action. Barnes v. Continental Ins. Co., 231 Ga. 246, 201 S.E.2d 150. Cf. Irons v. American Nat'l Bank, 178 Ga. 160(5a), 172 S.E. 629, holding that 'A statute authorizing service of process by publication or otherwise upon absent and non-resident defendants, has no application to suits in...

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