Webb v. Oliver, 29678

• Decision Date: 22 April 1975
• Docket Number: No. 29678,29678
• Citation: 234 Ga. 361,216 S.E.2d 76
• Parties: George WEBB et al. v. Judy Sparks OLIVER.
• Court: Georgia Supreme Court

Page 76

216 S.E.2d 76

234 Ga. 361

George WEBB et al. v. Judy Sparks OLIVER.

No. 29678.

Supreme Court of Georgia.

April 22, 1975.

Rehearing Denied May 13, 1975.

Vincent P. McCauley, Columbus, for appellants.

William H. Young, III, Columbus, for appellee.

Syllabus Opinion by the Court

HALL, Justice.

On further consideration of the record in the present case, this court holds that the application for writ of certiorari was improvidently granted, and accordingly this case is dismissed.

All the Justices concur except HILL, J., who dissents.

HILL, Justice (dissenting).

The facts of this case appear in the opinion of the Court of Appeals, Webb v. Oliver, 133 Ga.App. 555, 211 S.E.2d 605. In summary it can be said that there was evidence that on July 6, 1973, the date of the automobile collision in issue, the defendant was or may have been a resident of Muscogee County, Georgia, was or may have been a resident of Daviston, Alabama, or was or may have been a resident of both. In any event, on the date suit was filed the defendant was living in Germany.

The complaint asserted jurisdiction over the defendant under the Nonresident Motorists Act, Code Ann. § 68-801 et seq.

After hearing evidence, the trial court granted defendant's motion to dismiss for lack of jurisdiction over the defendant, the Court of Appeals affirmed, and this court granted certiorari but now dismisses the writ as having been improvidently granted.

In my view, the trial court and Court of Appeals correctly followed decisions of this court which were incorrectly decided and this court should review the status of the issues presented here.

Our Nonresident Motorists Act has been construed to be inapplicable to motorists who were residents of this State at the time of the collision but who thereafter moved their residence beyond the limits of this State.

An attempt in 1957 by the General Assembly to extend the applicability of the Nonresident Motorists Act to persons ceasing to be residents of this State (Ga.L.1957, pp. 649, 650; Code Ann. § 68-808) was held to be unconstitutional in Young v. Morrison, 220 Ga. 127, 137 S.E.2d 456, upon the authority of the 1877 decision in Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565. In Young v. Morrison, this court declined to apply the more recent (1945) decision of the Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, which was based upon 'minimum contacts.'

Pennoyer v. Neff has been substantially qualified by the 'minimum contacts' test, 20 Am.Jur.2d, Courts, § 146. This court did not relax its hard rule of construction so as to effectuate the legislative will in Young v. Morrison, supra. In my view a resident of this State who leaves it has sufficient contacts here to be called upon to defend a suit for a tort committed while a resident. However, we should not revive Code Ann. § 68-808 by judicial decision. These references to Young v. Morrison merely show where I believe the court proceeded in the wrong direction vis-a-vis resident motorists. Young v. Morrison was followed in Thompson v. Abbott, 226 Ga. 353, 174 S.E.2d 904. Thompson relied upon Davis v. Holt, 105 Ga.App. 125, 123 S.E.2d 686.

In Davis v. Holt, 105 Ga.App. 125, 123 S.E.2d 686, plaintiff's suit for personal injuries suffered in an auto collision was filed in Walker Superior Court and defendant was served under the Nonresident Motorists Act. The defendant filed a plea to the jurisdiction urging that service under the act was improper because at the time of the accident and at the time of service of process he was a resident of Fulton County. Affidavits and counter affidavits were filed and defendant's motion for summary judgment was granted. The Court of Appeals affirmed on the basis that the uncontradicted evidence showed that at the time of the accident, the defendant was a resident of Georgia (Fulton County) and a temporary sojourner in Alabama.

The Court of Appeals stated further that the defendant was not estopped to deny his residence in Alabama in that, at most, the evidence merely pointed to the possibility that defendant had two residences. This court denied certiorari in that case.

In my opinion, Davis v. Holt was correctly decided but for the wrong reason. As a resident of Fulton County at the time suit was filed, the defendant was constitutionally entitled to be sued there. Where a person has a residence in Georgia at the time suit for personal injuries is filed against him, the Constitution requires that it be tried in the county where the defendant resides. Const. art. VII, § VII, par. 1; Code Ann. § 2-4906.

If a nonresident has an automobile accident in this State and then moves his residence to Georgia, the Constitution takes precedence over the Nonresident Motorists Act which otherwise generally fixes venue in such cases in the county where the accident occurred or where the plaintiff resides. Code Ann. § 68-803.

In my view, Davis v. Holt, supra, should have been decided on the basis of venue, not on the basis of jurisdiction over the person.

As heretofore noted, this court adopted and expanded Davis v. Holt in Thompson v. Abbott, 226 Ga. 353, 174 S.E.2d 904. Davis had involved a resident of Georgia sojourning in Alabama. In Thompson, the evidence showed that on the date of the collision the defendant (actually third party defendant) had a Georgia residence and an Alabama residence but that she was not a resident of Georgia when suit was filed. Her motion to dismiss was denied by the trial court and on appeal that motion, treated as a motion for summary judgment, was held to have been improperly denied under the authority of Davis v. Holt. Thompson thus expanded Davis to include a person with two residences. However, this court went even further in Thompson and held that where the defendant's evidence shows residence in Georgia at the time of the accident and plaintiff's evidence shows residence outside Georgia at that time, unless the plaintiff can somehow controvert the evidence submitted by the defendant as to residence in Georgia, plaintiff's evidence as to foreign residence is 'irrelevant,' and a motion for summary judgment by the defendant should be granted.

In my view, Thompson v. Abbott, supra, was decided erroneously for two reasons, one involving the applicability of the Nonresident Motorists Act and the other involving the means of determining the applicability of that Act. In Thompson there was evidence that at the time of the collision, the defendant had a...