132 Ga. 57 | Ga. | 1909
Lead Opinion
(After stating the facts.)
We do not think that McCollister, on whom the notice was served, was an agent of the defendant within the meaning of the statute under consideration. His main work consisted in looking after the routine duties of the office. An agent on whom service could be made under the statute would not be a clerk in the office of a station agent who performed the routine work of the office. McCollister did not sustain such a representative capacity towards the corporation as would make service on him good as the -agent thereof. The chief clerk in an office, doing the routine work of .an officer, could not be said to be an officer; nor do we think that the chief clerk in the office of a station agent, doing merely the routine work of that office, could be said to be an agent, within the meaning of the statute under consideration. It is true that McCollister did most of the acts which' the agent was required to perform, but he did them in the name of the agent, and signed the agent’s name when necessary. McCollister necessarily had some discretion in the work he did, but every servant or employee has some discretion about the particular work in which he is en
The ruling here made does not conflict with the decision in Southern Bell Telephone Co. v. Parker, 119 Ga. 721 (47 S. E. 194). In 19 Enc. PI. & Pr. 665, it is said: “Some of the statutes contain provisions for service in certain contingencies upon a ‘general or special agent,’ or upon ‘any agent,’- etc. It is generally held that the word ‘agent,’ as used in such statutes, applies -only to such agents as have some sort of controlling authority, and not to every person employed or intrusted with a commission by the corporation.” Also see, in this connection, pages 666, 676, 677, and 678 of this same volume. We think the judgment awarding a nonsuit was proper, and it is
Affirmed.
Dissenting Opinion
dissenting. The Civil Code, §2243, provides for service of notice “on any agent or officer” of the company. The language quoted is similar to that employed in section 1899, where suits against corporations are authorized to be served by serving “any officer or agent of such corporation.” Both sections contemplate the same character of agent to be served. No provision is made in section 2243 for service “upon the agent in charge of the office or business of the corporation,” as is required by sections 1901 and 4710 with respect to service of summons of garnishment on corporations. The effect of the ruling made by the majority is to apply section 2243 as if it contained the provision quoted from sections 1901 and 4710. But as section 2243 does not eontain the provision requiring service to be made “upon the agent’ in charge of the office or business of the corporation,” it should be construed and applied as if it contained only the provisions quoted from section 1899. Under such construction,