Central of Georgia Railway Co. v. Alford , 154 Ga. 863 ( 1923 )

Per Curiam.

1. All railroad companies shall be sued in the county in which the cause of action originated for injury to person or property, if such companies have an agent in that county. But if the cause- of action arises in a county where the railroad company has no agent, then suit may be brought in the county of the residence of said defendant company. Civil Code, § 2798.

2. “If the company have no agent in the county in which the cause of action originated, the action may nevertheless be brought in that county, the court- having power to perfect service upon the defendant.” Mitchell v. Southwestern R., 75 Ga. 398; Devereux v. Atlanta &c. R. Co., 111 Ga. 855 (36 S. E. 939); Coakley v. So. Ry. Co., 120 Ga. 960 (2) (48 S. E. 372); Ga. R. & Bkg. Co. v. Bennefield, 138 Ga. 670, 672 (75 S. E. 981).

No. 3279. January 26, 1923.

(a) The superior court of that county having jurisdiction if there were no provision in the statute, by necessary implication it would have the right to assert its jurisdiction by causing its process to be served on the proper officer of the corporation in person, if a resident in this State, by means of a second original and process. Mitchell v. Southwestern R., supra.

3. The principles stated in the next preceding headnote were ruled prior to the passage of the act of 1912 (Georgia Laws 1912, p. 66) which undertook to amend the Civil Code (1910), § 2798. It appears, therefore, that the amendment was wholly unnecessary in so far as the same affected suits against railroad companies. The service by means of the second original on the president of the railroad company in Chatham County was therefore legal and sufficient, independently of the act of 1912. It becomes unnecessary, therefore, to decide the question of constitutionality of that act in so far as it applies to service on railroad companies, as made in the demurrer.

4. The petition set out a cause of action, and' the court did not err in overruling the general demurrer.

5. Section 2777 of the Civil Code (1910) reads as follows: “Any common carrier, railroad, or transportation company, receiving property for transportation between points wholly within this State, shall issue a receipt or bill of lading therefor, and shall be liable to the holder thereof for any loss, damage, or injury to such property caused by it or by any common carrier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass; and no contract, receipt, rule, or regulation shall exempt such common carrier, railroad, or transportation company from the liability herein imposed: Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law.” That .section is applicable to the contracts involved in this ease. So construing the statute and applying it to this case, the charge complained of is not error. Gilbert, J., dissents.

6. The verdict is supported by evidence. Hill and Gilbert, JJ"., dissent. Judgment affirmed.

All the Justices concur, except, as indicated above. T. M. Cunningham, M. F. Adams, and Stubbs & Dulce, for plaintiff in error. Davidson & Callaway, contra.