Rogers v. Atlantic Greyhound Corporation

• Decision Date: 02 July 1943
• Docket Number: No. 175.,175.
• Citation: 50 F. Supp. 662
• Parties: ROGERS v. ATLANTIC GREYHOUND CORPORATION et al.
• Court: U.S. District Court — Southern District of Georgia

50 F. Supp. 662

ROGERS v. ATLANTIC GREYHOUND CORPORATION et al.

No. 175.

District Court, S. D. Georgia, Augusta Division.

July 2, 1943.

Paul T. Chance, of Augusta, Ga., for plaintiff.

Bussey, Fulcher & Hardin, of Augusta, Ga., for defendants.

LOVETT, District Judge.

The question now for decision in this case may be stated this way. May an insurance carrier be joined as a defendant with a motor common carrier in a suit brought in Georgia by a passenger on an interstate journey for personal injuries caused by the carrier's negligence in another state. The carrier had qualified with and obtained certificates to do both an interstate and intrastate business from the appropriate federal and state authorities.

The answer depends upon whether the Motor Carrier Act of Georgia¹ is applicable. If it is, the insurance carrier is jointly liable with the motor carrier and it is permissible to join both in the same action.² It is otherwise under the Federal Motor Carrier Act, 1935, now known as part 11 of the Interstate Commerce Act.³

The plaintiff, a resident of Georgia, purchased from the defendant bus company, not a Georgia corporation, a ticket from Portsmouth, Virginia, to Wrightsville, Georgia, where she lived. The defendant's bus line terminated at Augusta, Georgia, but she had a through ticket. She expected to get on another bus of a connecting line on arrival in Augusta. En route, while in South Carolina and before reaching Georgia, it is alleged the defendant negligently drove its bus off the highway and into a river and the plaintiff was injured. The suit was brought in this court, diversity of citizenship of the parties existing, against the motor carrier and the insurance carrier. Both move to dismiss the insurance carrier as a defendant on the ground it has been improperly joined.

It is conceded plaintiff was an interstate passenger — on an interstate journey; that the bus on which she was riding was an interstate bus; and that she was injured in South Carolina before the bus arrived at its terminus in Augusta, Georgia. Under these circumstances I think the Act of Congress regulating motor common carriers of passengers controls the rights and remedies of the passenger, and that the Georgia Act is not applicable.

In 1931 Georgia enacted its Motor Common Carrier Act. It prescribed conditions under which such motor vehicles would be permitted to operate upon highways, a certificate of convenience and necessity was required. The Act recognized the paramount province of Congress to regulate commerce among the states and provided by section 30⁴ that carriers engaged solely in interstate commerce might operate without a certificate from the Georgia Commission but should register the routes they traveled, etc. Section 7 of the Act⁵ made it impossible for one seeking to do an intrastate business to operate without giving a bond or indemnity insurance in some insurance company qualified to do business in the state for the protection in case of passenger vehicles of the passengers carried and of the public against injury proximately caused by the negligence of the carrier. It should be noticed this section of the Act begins by saying "no certificate shall be issued", etc., unless the holder gives the bond or insurance, clearly suggesting, I think, it related only to the intrastate operations. The title of the Act⁶, stating its purpose, among other things recites it is an Act to "protect the public as to the operation of such carriers". (Emphasis mine.) Section 30 which required an interstate carrier to register only its routes also contained a provision relating to a bond or indemnity insurance, and in this language: "And such motor carriers shall give the bond or indemnity insurance prescribed by this Act (omitting the protection in respect of their own passengers and cargoes)"⁷, thus indicating clearly by the parenthetical clause that the Georgia General Assembly either doubted its authority constitutionally to legislate as to interstate passengers and cargoes or looked upon them as adequately protected by the bond or indemnity insurance required by the Act of Congress, as indeed they were⁸. By the Act of 1937⁹ section 7 of the 1931 Act was re-written by adding a sentence making it permissible to join the motor carrier and the insurance carrier in the same action, but section 30 remained unaltered. Before the 1937 Act the joint action in the state courts could not be brought.¹⁰ Afterwards it could, and the Act so permitting was held by the Georgia courts not to be violative of the State Constitution.¹¹ No question of interstate commerce was involved in these cases.

"It is well settled that a state may not require a carrier to furnish liability insurance covering persons and property being transported in interstate commerce". Continental Casualty Co. v. Shankel, 10 Cir., 88 F.2d 819(2), 823.

Before Congress legislated, it was held by the Supreme Court of the United States that because there were grave dangers incident to the operation of motor vehicles a state might require users of such vehicles on the public highways to provide adequate insurance for the payment of judgments recovered for certain injuries resulting from their operation. "Such provisions for insurance are not, even as applied to busses engaged exclusively in interstate commerce, an unreasonable burden on that commerce, if limited to damages suffered within the state by persons other than the passenger". Sprout v. South Bend, 277 U.S. 163, 172, 48 S.Ct. 502, 505, 72 L.Ed. 833, 62 A.L.R. 45. (Emphasis mine.) Cf. Cobb v. Department of Public Works, D.C., 60 F.2d 631(6), 640, 641. As to the passenger-carrier and consignor-carrier relationship in interstate commerce it seems to me Congress has completely occupied the field of legislation touching indemnity insurance, and that no room is left for the state to legislate in that regard. There are other fields not occupied, such as, regulation of the weight and size of vehicles, etc. South Carolina State Highway Dept. v. Barnwell Bros., Inc., 303 U.S. 177, 58 S.Ct. 510, 82 L.Ed. 734. And a different situation arises where local citizens, not passengers, are injured on the highways of the state. Acme Freight Lines v. Blackmon, 5 Cir., 131 F.2d 62, 63(3, 4), 64; BeMac Transportation Co. v. Lairmore, Okl. Sup., 129 P.2d 192; Tucker v. Casualty Reciprocal Exchange, D.C., 40 F.Supp. 383; Gallahar v. Rheman Co., this day decided by this court, 50 F.Supp. 655. In the Tucker, Lairmore, and Gallahar cases cited it was carefully pointed out that no question of...