29 Ga. App. 726 | Ga. Ct. App. | 1923
This was an action originally filed by Mrs. Josie Berger, for damages on account of the death of her son, alleged to have been caused by the negligence of the defendant. Subsequently she died and an administratrix was appointed and made a party plaintiff in her stead. The suit was filed in the city court of Carrollton, and alleged that the injury and death occurred in Carroll county. .
Upon the trial of the traverse it indisputably appeared, as above stated, that there was no representative or agency of the company in Carroll county upon whom or at which service might be made. The court directed a verdict against the traverse. There were objections to the mode of the trial of the issue upon the traverse, and there was a plea to the jurisdiction, hut these need not be referred to in detail, inasmuch as they will be controlled by our decision upon the questions which we have specifically stated. There was no waiver of service by the answer, but, on the contrary, the contentions as made by the traverse and the above-mentioned plea were properly preserved. Bell v. New Orleans &c. R. Co., 2 Ga. App. 812 (5) (59 S. E. 102); McFarland v. McFarland, 151 Ga. 9 (3) (105 S. E. 596).
Since the charter of the defendant fixes its principal place of business in Carroll county, this is the county of its residence, and the only county in which it can be sued, unless otherwise provided by statute (Central of Ga. Ry. Co. v. State, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518); Sprinkle Distilling Co. v. So. Express Co., 141 Ga. 21 (80 S. E. 288); Civil Code (1910), § 6543); and it is nowhere so otherwise provided unless by the terms of section 2259 of the code. But this section adds nothing in the present case, for the reason that the injury also occurred in the county of Carroll.
The domicile of a corporation does not depend upon the place of the residence of its officers, but upon the terms of its charter. In addition to the authorities above cited, see: McCandless v. Inland Acid Co., 115 Ga. 968 (3), 977 (42 S. E. 449); Jossey v. Georgia & Alabama Railway Co., 102 Ga. 706 (28 S. E. 273).
IIow was the defendant to be served? Section 2259 of the code, already adverted to, provides as follows: “ Any corporation, mining, or joint stock company, chartered by authority of this State, may be sued on contracts in that county in which the contract sought to be enforced was made or is to be performed, if it has an office and transacts business there. Suits for damages, because of torts, wrong or injury done, may be brought in the county where 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 of business.” But service under this section was impossible, because the defendant had no agent in the county, and no physical place of business at which a copy of the writ might be left. Central Georgia Power Co. v. Parnell, 11 Ga. App. 779 (76 S. E. 157); Tuggle v. Enterprise Lumber Co., 123 Ga. 480 (51 S. E. 433).
Clearly this was no ease for service by publication under section 2261 of the Civil Code, for there were officers in the State upon whom the service might be personally perfected. Section 2258 of the code provides upon whom the service shall be made. This section is as follows: “ Service of all subpoenas, writs, attachments, and other process necessary to the commencement of any suit against any corporation in any court, except as hereinafter provided, may be perfected by serving any officer or agent of such corporation, or by leaving the same at the place of transacting the usual and ordinary public business of such corporation, if any such place of business then shall be within the jurisdiction of the court in which said suit may be commenced. The officer shall specify the mode of service in his return.” But in attempting to proceed under this section the plaintiff was confronted again with the fact that there was no officer or agency in the county upon whom or at which service might be made. The clerk could only issue the usual process. He had no authority without an order of court, in a case of this sort, to issue process directed to the officers of any other county. Civil Code (1910), § 5567. Furthermore, the sheriff of Carroll county could not serve the process, because his
In the case of United States Casualty Co. v. Newman, 137 Ga. 477, 449 (73 S. E. 667), the Supreme Court makes a pertinent observation with reference to doctrine of the Devereux case, showing it is grounded in necessity, and may in a proper case be justifiably applied. See also the following: Mitchell v. Southwestern Railroad, 75 Ga. 398 (2); Richards v. McHan, 139 Ga. 37 (2) (76 S. E. 382); Georgia Railroad &c. Co. v. Bennefield, 138 Ga. 670, 672 (75 S. E. 981); Jefferson Fire Ins. Co. v. Brackin, 140 Ga. 637 (3) (79 S. E. 467).
From the foregoing it will be seen that the court was clearly within its power in providing the mode of service. The question now arises, was the service upon the vice-president a valid service upon the company, when the court had ordered the service to be made through its president? If it was defective, was the defect cured by the subsequent amendment of the order so as to include other officers, the vice-president among them, when no service was made thereafter under the order as amended ? We seriously doubt if the court had the right to restrict the service to the president, in the first place.' Section 2258 of the code, which we have above quoted, provides for service upon “ any officer or agent.” It was, therefore, unnecessary for the court to order upon which officer service should be made; and what the court did order was not in accordance with the statute. We are of the opinion that it could
The conclusion seems demanded that by the service of the process (which the court had the inherent power to order issued) upon one of the officers upon whom the statute says service may be made, “the defendant has had notice of the pendency of the cause)” in a manner fully authorized by the law, and therefore that “ all other objections shall be disregarded.”
It will be distinctly noted in this connection that no attack was made upon the form of the process. The attack was solely upon the authority upon which it issued, upon the manner of its service, and upon the jurisdiction of the court to entertain the cause and to execute the orders which we have mentioned.
It follows, from what we have said, that the evidence demanded a finding against the traverse, and it was, therefore, harmless error, if error at all, for the court to consolidate this issue with another of the same kind, though the defendant objected. There was no error in any of the rulings of the court upon the questions above referred to or kindred questions.
But the defendant excepts also to an excerpt from the charge of the court in which the-jury were instructed that the case might' proceed with Mrs. Chandler as administratrix in the place of Mrs. Berger. In view of the order above shown, and the failure of the defendant then, or thereafter when the temporary letters were introduced, to contest the right of the administratrix to proceed with the case as plaintiff, by any appropriate plea, such as is required under the authorities above cited, there was no error in the instructions in this connection conqplained of.
On the authority of a temporary administrator in regard to the institution of suits, see the following: Frazier v. Georgia Railroad &c. Co., 101 Ga. 77 (28 S. E. 662); Reese v. Burts, 39 Ga. 565 (1); Mason v. Atlanta Fire Co., 70 Ga. 604 (1), 607 (48 Am. R. 585); Louisville & Nashville Railroad Co. v. Chaffin, 84 Ga. 519 (11 S. E. 891); Civil Code (1910), § 3937.
In view of the entire record, there is.no substantial merit in any of the special assignments upon the rulings of the court during the trial. Although the requests to charge, with one exception, set forth correct principles of law, they were either sufficiently covered by the general charge or not pertinent, and there was no error in refusing them. In at least four of the grounds of the amended motion the excerpts from the charge are so imperfectly set forth that no error in any of them appears. As set out in the assignments, they stated hypotheses only, without instructing whether the defendant would be liable thereunder of not.
A¥hile all of the assignments have been most carefully considered, we will refer specially to only two of those remaining. They are contained 'in the eleventh and twenty-fifth paragraphs of the amended motion for a new trial. The first of these is an exception to the following charge of the court: “ And she will have the right, as administratrix, in the place of Mrs. Josie Berger, to recover just as Mrs. Josie Berger would have recovered had she
The twenty-fifth ground complains of the court’s refusal of a written request to charge that “ one who knowingly and voluntarily takes the risk of physical injury, the danger óf which is so obvious that the act of taking such risk in and of itself amounts to a failure to exercise ordinary care and diligence for his own safety, cannot hold another liable for damages resulting from a hurt thus occasioned, although the same may be in part attributable to the latter’s negligence.” The court instructed the jury that a servant assumes the ordinary risks of his employment and is bound to exercise his own skill and diligence to protect himself, and charged them also as to the duties of the servant as imposed by the provisions of Civil Code (1910), § 3131. This might not have been a sufficient reason for declining the request if it had been proper and pertinent to the issues of the case. But it was nowhere contended by the defendant that there were any obvious dangers to which the servant was exposed. The action was defended upon the theory that there was no negligence whatever upon the part of the defendant or of the servant, but that the death of the servant was caused “by an act of God, and was an accident over which no human power had any control, or power to avert,” 'in that he was killed by a stroke of lightning; “that no instrumentality or machinery of the defendant. was the cause of it or anything over
After a most thorough examination of the entire record, no material or prejudicial error is found. There was some evidence to authorize the verdict, and the judgment refusing the motion for a new trial must be affirmed.
Judgment affirmed.