Vicksburg, S. & P. Ry. v. De Bow

• Decision Date: 13 February 1919
• Docket Number: 859.
• Citation: 98 S.E. 381,148 Ga. 738
• Parties: VICKSBURG, S. & P. RY. v. DE BOW. DE BOW v. VICKSBURG, S. & P. RY.
• Court: Georgia Supreme Court

98 S.E. 381

148 Ga. 738

VICKSBURG, S. & P. RY. v. DE BOW.

DE BOW v. VICKSBURG, S. & P. RY.

No. 859.

Supreme Court of Georgia

February 13, 1919

Syllabus by the Court.

It is essential to the legal rendition of a personal judgment against a foreign corporation, otherwise than by its voluntary appearance, that the corporation be doing business within the state.

A foreign railroad corporation, which neither owns, leases, nor operates any line of road within the state of Georgia, is not "doing business" within the state, in the sense that liability to service is incurred, because it maintains an office and employs an agent, resident in the state, for the merely incidental business of soliciting freight especially where the transitory cause of action did not grow out of, and had no connection with, business so initiated.

Additional Syllabus by Editorial Staff.

Motion to dismiss cross-bill of exceptions for want of necessary parties defendant in error, who were formal parties in trial court, will be denied, where leave to amend was asked and parties omitted consented in writing to be made parties waived service, and agreed to hearing of case on merits.

A corporation can be found in any jurisdiction where it carries on business through agents resident or located therein, and suits may be maintained against it in that jurisdiction, if the laws thereof provide a method of perfecting service upon its agents.

The taking of orders by an agent, subject to approval of foreign corporation at its office outside the state, constitutes "doing business" within the state, so as to subject it to the jurisdiction of the state courts, in view of Civ Code 1910, § 2258.

Certiorari from Court of Appeals.

Action by J. D. B. De Bow against the Vicksburg, Shreveport & Pacific Railway. Judgment for plaintiff, his motion for new trial overruled, and he excepts and brings error, and defendant filed a cross-bill of exceptions; and from a judgment of the Court of Appeals (21 Ga.App. 732, 95 S.E. 261), reversing upon the main bill of exceptions and affirming the judgment upon the cross-bill, the Supreme Court granted a writ of certiorari. Reversed and remanded.

J. D. B. De Bow, a citizen of the state of Tennessee, filed his suit in the superior court of Fulton county, Ga., against the Vicksburg, Shreveport & Pacific Railway, a nonresident corporation, as an initial carrier for hire, to recover $20,000 alleged to be the value of a certain hog shipped by him in interstate commerce from Shreveport, La., to Montgomery, Ala. The plaintiff alleged that the defendant received the hog at Shreveport for transportation, and undertook faithfully to transport the hog to the plaintiff at Montgomery, and issued to the plaintiff its receipt and bill of lading in due form; that in the course of the transportation the special car, provided at the expense of the plaintiff, for the purpose of transporting valuable live stock, was delivered by the defendant to its connecting carrier at Meridian, Miss.; and that through the negligence of the connecting carrier the hog received an injury from which it died. One of the allegations of the petition was:

"The said defendant company has and maintains an office and place of business in the said county of Fulton, in said state of Georgia, and has an agent who therein transacts business for and on behalf of said defendant corporation."

A deputy sheriff made the following return:

"I have this day served the defendant by delivering a copy of the within petition and process to J. F. Hardin, the agent of the defendant company, in person at Room 404 in the Equitable Building in the city of Atlanta, Fulton county, Georgia, the same being the place of transacting the usual and ordinary public business of said corporation within said county. This 7th day of May, 1910."

At the first term the defendant, without submitting itself to the jurisdiction of the court, filed a traverse to the return of service, and prayed that both the sheriff of Fulton county and the deputy sheriff making said return be made parties thereto, and that the return of service be quashed and the case be dismissed. The ground of the traverse was as follows:

"This defendant says that it has never been served with any notice or process in said suit; that J. F. Hardin is not its agent in the sense that service upon him would be served upon it; that it has never done and does not now do any business in the state of Georgia; that it has never owned or operated and does not now own or operate any line of railroad in said state; that it has never had and has not now within said state an agent for transacting its usual and ordinary public business; that it has never had and has not within said state a place of transacting its usual and ordinary public business; and that it has never had and has not within said state of Georgia an agency for the transaction of its usual and ordinary public business."

At said term the defendant, insisting upon its traverse to the return of service in said cause, made its special appearance for the purpose of pleading to the jurisdiction of the court. In its plea to the jurisdiction the ground contained in its traverse to the return of service, quoted above, was repeated, and in addition thereto the defendant alleged that it, in connection with two other named nonresident railroad corporations, maintains an office in the city of Atlanta "for the said John F. Hardin, and pays him a monthly salary for his services as a commercial agent only. As such the said Hardin has no authority on behalf of this defendant to issue bills of lading for it, nor make contracts of affreightment, nor sell passenger tickets, nor to make contracts of carriage with passengers; but he is solely a soliciting agent, and his duties and authority are to endeavor to have freight moving from or into the Southern territory pass over the lines of defendant, such lines being wholly without the state of Georgia," and that the attempt to bring this defendant into the jurisdiction of said court is in violation of that portion of the Fourteenth Amendment to the Constitution of the United States, which declares:

"No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws." The traverse, plea in abatement, and plea to the jurisdiction were duly verified. The court, to whom the issues on the traverse and plea were submitted without the intervention of a jury, found against the traverse and against the plea, entering a judgment striking the traverse and plea, and ordering the cause to proceed. To this judgment the defendant excepted pendente lite. Not waiving its right to except to the judgment upon the traverse and plea to the jurisdiction, the defendant filed its answer to the petition, contending that upon the facts pleaded it was not an initial carrier, and that it was not liable for the full value of the plaintiff's hog, and, if liable at all, it was not liable in any sum in excess of $10, the agreed value of the hog as stipulated in its bill of lading. The verdict in favor of the plaintiff was for that sum; the court having in effect so limited the recovery. The plaintiff filed his motion for new trial, which was overruled, and he excepted. The defendant filed a cross-bill of exceptions, and therein assigned error upon its exceptions pendente lite. Upon review the Court of Appeals of this state reversed the judgment of the lower court upon the main bill of exceptions, and affirmed the judgment upon the cross-bill. De Bow v. Vicksburg, Shreveport & Pacific Railway, 21 Ga.App. 732, 95 S.E. 261. Upon application of the railway company, the Supreme Court granted a writ of certiorari to review the judgment of the Court of Appeals.

Anderson, Rountree & Crenshaw, of Atlanta, for plaintiff in error.

Atkinson & Born, of Atlanta, for defendant in error.

GEORGE, J. (after stating the facts as above).

1. A motion was made to dismiss the cross-bill of exceptions for want of necessary parties defendant in error, to wit, the sheriff and his deputy, who were formal parties in the trial court to the traverse of the return made by the deputy, as shown by the record. This motion was met by a motion to amend the cross-bill, so as to make the sheriff and his deputy defendants in error therein. The sheriff and his deputy consented in writing to be made parties, waived service, and agreed that the case be heard on its merits. This is sufficient, under the ruling in Bullard v. Wynn, 134 Ga. 636, 68 S.E. 439.

2. In the view we take of this case, the traverse to the return of service should have been sustained, and the action dismissed. This conclusion renders it unnecessary to set forth the evidence contained in the record upon the merits of the case. It is proper to say that the trial court, in ruling upon the traverse to the return of service and plea to the jurisdiction, was controlled by the decision of the Court of Appeals in Bell v. New Orleans, etc., Railroad Co., 2 Ga.App. 812, 59 S.E. 102. Doubtless the Court of Appeals recognized its former decision as binding upon it in the present case. The question has not been passed upon by this court; and we have with great hesitancy reached a conclusion contrary to that reached in the Bell Case. The formal reasons set forth in the report of the Bell Case required the judgment there rendered; and in this view of the matter the ruling there made upon the question here presented was perhaps unnecessary to the decision of the case. It is conceded, however, that the question was considered and directly...