American Oil Company v. Arrington

1. An action in tort may be maintained against a foreign corporation which does business in this State, and does not maintain a place of business or agent in this State upon whom service may be perfected, in any county of this State in which the tort sued for or any part thereof was committed; and service of process therein may be perfected upon such corporation by a second original served upon the person in another county of this State designated by such corporation to receive service of process under the provisions of the act approved January 31, 1946 (Ga. L. 1946, p. 687).

2. The amended petition set out a separate and distinct cause of action in each count and was not duplicitous; and the judge did not err in overruling grounds 3, 4, 6, 7, and 8 of the demurrer.

3. The court did not err in overruling ground 5 of the demurrer, which attacked the form in which the petition was brought as to the two counts therein set out.

4. The allegations contained in each count of the petition, setting out the damage to the plaintiff's motorcycle, were not legally sufficient to authorize a recovery on this item of damages; and the trial judge is directed to strike these paragraphs from the petition before the case comes up for trial, unless the plaintiff amends his petition as suggested in division 4 of this opinion.

5. The petition as amended was not subject to the other grounds of special demurrer.

6. Until there has been in the trial court a judgment finally disposing of a case, this court can not consider as assignment of error on the striking on demurrer of the defendant's plea to the jurisdiction.

7. The petition set out a cause of action, and the venue was properly laid in McDuffie County, and the court did not err in overruling the general and special demurrers, as stated in the opinion in this case.

DECIDED JUNE 27, 1947. REHEARING DENIED JULY 16, 1947. Rogers Arrington sued American Oil Company in the Superior Court of McDuffie County. His petition, as amended, was brought in two counts which alleged substantially as follows: (1) that the defendant was American Oil Company; (2) "that defendant is a non-resident of Georgia, being a corporation, and without an authorized agent in McDuffie County upon whom legal process may be served, but has designated Thomas E. Kingston, of the Healey Building, Atlanta, Ga., as its legal agent to accept service of process, said agent being in Fulton County, Georgia;" (3) that the plaintiff brought the action in two counts; then following the words, "Count one," the defendant set out in paragraphs numbered consecutively from 1 through 13, allegations to the effect that on July 7, 1946, he was riding his motorcycle along the highway between Warrenton and Thomson and exercising due care and caution for his own safety, when a truck of the defendant company and operated by one of the defendant's drivers, negligently sideswiped the plaintiff's motorcycle at a point about two and one-half miles east of Thomson, causing the plaintiff to sustain certain physical injuries and damaging his motorcycle in certain designated particulars; that the defendant was negligent in certain specified ways and such negligence was the proximate cause of the plaintiff's injuries and damage; and damages were prayed for in the sum of $2500. Following this count, the petition set out the words, "Count two," and in paragraphs numbered consecutively from 1 through 9 set out substantially the same facts as alleged in count 1, but alleged that the plaintiff's injuries and damage were the proximate result of the wilful and wanton conduct of the defendant and the reckless disregard by the defendant of the plaintiff's rights; and in this count, judgment was sought against the defendant in the sum of $2500 as punitive damages. The prayers of the petition were for process, for a second original for service on the defendant, and for judgment against the defendant as prayed for in the petition.

Service by second original was duly made on the defendant in Fulton County, Georgia, by serving the said Thomas E. Kingston, "an officer of said corporation." The petition was filed on January 1, 1947. On January 11, 1947, the defendant filed general and special demurrers and its answer to the petition. The grounds of demurrer were: (1, 2) that the venue of the action was improper, and the petition showed on its face that the Superior Court of McDuffie County was without jurisdiction to entertain the petition because the defendant was a non-resident corporation without an authorized agent in McDuffie County upon whom process could be served, and that it had designated Thomas E. Kingston as its agent in Fulton County upon whom process could be perfected, and that said action should be dismissed; (3) that the two counts of the petition were so commingled and intermingled as to fail to set out plainly and distinctly a cause of action in separate counts; (4) that the petition was duplicitous, in that it contained in a single count allegations of gross negligence and wilful and wanton conduct; (5) that the purported counts were not full and complete in themselves so as to allege a separate cause of action in each count; (6, 7) that, despite the words, "Count one" and "Count two," appearing in the petition, only one count was contained therein and the petition was therefore duplicitous, as the same purported to declare upon negligence and wilful and wanton conduct based on the same allegations of facts, and the plaintiff should be required to elect upon which of these charges he will proceed. There were also seven grounds of special demurrer attacking certain paragraphs or parts of paragraphs of the petition.

On January 16, 1947, the defendant filed a plea to the jurisdiction of the court. On January 30, 1947, the plaintiff filed general and special demurrers to the plea to the jurisdiction. On February 26, 1947, the judge overruled the defendant's demurrers to the plaintiff's amended petition, and sustained the plaintiff's demurrers to the defendant's plea to the jurisdiction. The defendant assigned error on said judgments. 1. The judge did not err in overruling the demurrers of the defendant, to the effect that the petition showed on its face that the venue of the action was improper and that the Superior Court of McDuffie County was without jurisdiction to entertain the action. The defendant contends that, since it appears from the petition that the defendant was a non-resident corporation which was without an agent or place of business in McDuffie County, but had designated an agent in Fulton County to accept service of process, it was a resident of Fulton County for purposes of suit, and that the present action could not be maintained in McDuffie County. This contention can not be legally sustained. By an act of the General Assembly of January 31, 1946, sec. 4 (Ga. L. 1946, p. 687, 689), it is expressly provided: "A foreign corporation, doing business in this State, and which does not maintain a place of business or agent in this State upon whom service may be perfected, shall be suable hereunder in any county of this State in which . . the tort sued for or any part thereof was committed, or in any county in this State wherein the person or persons designated by such corporation under the provisions of this act to accept service shall reside. In the event suit is brought in a county in which . . the tort sued for or any part thereof was committed, and in which the person or persons designated by such corporation under the provisions of this act to accept service shall not reside, service of said summons or process may be perfected upon such corporation by a second original served upon such person or persons in any other county of this State designated by such corporation as its agent to receive service of summons and process under this act." It appears from the allegations of the petition that the tort sued upon was committed in McDuffie County, and that the defendant corporation does not have an agent or place of business in that county, but that it had designated an agent in Fulton County to accept service of process, and that this agent was duly served by a second original. This was a substantial compliance with the terms of said act of 1946, and the court did not err in overruling grounds 1 and 2 of the demurrer.

It is well-settled law in this State that a foreign corporation doing business in this State may, for purposes of suit against it, be treated as a resident of this State and of any county in which it has an agent upon whom service can be perfected. Numerous decisions of our Supreme Court to this effect are cited in Hirsch v. Shepherd Lumber Corp., 194 Ga. 113 (20 S.E.2d 575), and this principle was again ruled in that case. The Hirsch case, the case of Lloyd Adams Inc. v.Liberty Mutual Ins. Co., 190 Ga. 633 (10 S.E.2d 46), and the other cases on this question, cited and relied on by the plaintiff in error in its brief, do not authorize or require a ruling in the present case different from the one here made. The venue and service in this case were laid and perfected under the terms of the act of January 31, 1946, part of which is above set out, and the provisions of that act in this respect are applicable and controlling in this case, instead of the authorities cited and relied on by the plaintiff in error.

2. The amended petition set out a separate and distinct cause of action in each count, and the two causes of action were not commingled or intermingled, as contended by the defendant in grounds 3, 4, 6, 7, and 8 of the demurrer. The petition declared upon two separate and distinct causes of action, one based on negligence, and the other based on wilful and wanton conduct. The cause of action based on negligence was designated in the petition as "Count 1," and was set out in distinct and orderly paragraphs numbered consecutively from 1 through 13, with a prayer for damages contained in the last paragraph. The cause of action based on wilful and wanton conduct was designated in the petition as "Count 2," and was set out in distinct and orderly paragraphs numbered consecutively from 1 through 9, with a prayer for punitive damages contained in the last paragraph. The allegations of each count were separately pleaded. While certain paragraphs of one count might be in conflict with certain paragraphs of the other count, the petition was not duplicitous since the conflicting paragraphs were contained in separate counts. The petition set out two separate and distinct causes of action in separate counts and was not duplicitous, and the court did not err in overruling grounds 3, 4, 6, 7, and 8 of the demurrer.

3. The court did not err in overruling the ground of special demurrer attacking the form in which the petition was brought as to the two counts therein set out. The petition designated a plaintiff and a defendant and set out facts to show that the court to which it was addressed had jurisdiction of the defendant. It alleged that the petition was brought in two counts, and set out the allegations of each count, designated an such, in distinct and orderly paragraphs consecutively numbered, with a prayer for damages contained in each count. At the conclusion of the petition were prayers for process and service, and for judgment "as prayed for in the petition." This was a substantial compliance with the rule which requires "each count to contain a complete cause of action in distinct and orderly paragraphs numbered consecutively," and the court did not err in overruling ground 5 of the demurrer. In this connection, see Cooper v. Portner Brewing Co.,112 Ga. 894 (38 S.E. 91); Gainesville Dahlonega Elec. Ry. Co. v. Austin, 122 Ga. 823 (50 S.E. 893).

4. In paragraph 9 of count 1 of the petition, the plaintiff alleged that his motorcycle was damaged in certain particulars and that it was repaired by a named individual, but he failed to allege the cost of the repairs. In paragraph 8 of count 2, he alleged that his motorcycle was "damaged to the extent of $45 for necessary repairs," which were made by a certain repair shop, but he does not allege in what particulars it was damaged nor does he itemize the cost of such repairs.

The defendant's special demurrer to this part of the petition was not exactly appropriate after the petition was amended; but it will be readily seen that the plaintiff can not legally maintain this action for damages to his motorcycle as his pleading now stands; and direction is given, unless he amends said paragraphs 8 and 9 of his petition, substantially to the effect as above suggested, before the case comes up for trial, that the trial judge strike said paragraphs 8 and 9 from the petition.

5. The petition as amended was not subject to any of the other special demurrers of the defendant.

6. The assignment of error, that the trial judge erred in sustaining the plaintiff's demurrer to the defendant's plea to the jurisdiction and in dismissing it, can not now be considered by this court. The sustaining or overruling of a plea to the jurisdiction is not a final judgment from which a bill of exceptions will lie to this court, as the main case is left pending in the court below. Ross v. Mercer, 115 Ga. 353 (41 S.E. 594). While a defendant may, before the final determination of a case, bring to this court for review a decision overruling a general demurrer to a petition because the judgment complained of, had it been rendered as sought by the plaintiff in error, would have been a final disposition of the case, such defendant can not, in a bill of exceptions sued out in such a case, properly except also to a judgment sustaining a demurrer to his plea to the jurisdiction. See Stovall v. Rumble, 71 Ga. App. 30 (3) (29 S.E.2d 804), and citations; Wright v.Morris, 50 Ga. App. 196 (177 S.E. 365); Turner v. Camp,110 Ga. 631 (2) (36 S.E. 76).

7. The petition set out a cause of action, and the venue was properly laid in McDuffie County; and the court did not err in overruling the general and special demurrers, as stated in the above rulings.

Judgment affirmed with direction. Parker, J., concurs.Felton, J., concurs in the judgment.