the venue of an action brought against the railroad, electric company, or gas company for the purpose of setting aside and having annulled such unlawful act of acquisition shall be in any county through which may run the line of railroad or in any county through which may run the transmission line of such electric company or in any county in which may be located the generating plant of such electric company or in any county through which may run the natural gas pipeline or distribution system so unlawfully acquired.
(Ga. L. 1855-56, p. 154, §§ 1, 2; Ga. L. 1859, p. 48, § 1; Code 1863, § 3317; Code 1868, § 3329; Ga. L. 1869, p. 14, § 1; Code 1873, § 3406; Ga. L. 1878-79, p. 125, § 10; Code 1882, §§ 719, 3406; Ga. L. 1892, p. 59, § 1; Civil Code 1895, §§ 2197, 2334; Ga. L. 1898, p. 50, § 1; Civil Code 1910, §§ 2640, 2798; Ga. L. 1912, p. 66, §§ 1-4; Code 1933, §§ 93-413, 94-1101; Ga. L. 1983, p. 3, § 62; Ga. L. 1984, p. 22, § 46; Ga. L. 1985, p. 149, § 46; Ga. L. 1986, p. 37, § 1; Ga. L. 1992, p. 6, § 46; Ga. L. 2004, p. 631, § 46; Ga. L. 2013, p. 551, § 1/HB 194.)
The 2004 amendment, effective May 13, 2004, part of an Act to revise, modernize, and correct the Code, revised punctuation in subsection (d).
The 2013 amendment, effective May 6, 2013, substituted "subsection" for "title" in the last sentence of subsection (b); in subsection (c), in the first sentence, substituted "railroad, electric company, or gas company" for "railroad or electric company", inserted ", or gas company," and inserted "causes of", and, in the second sentence, substituted "railroad, electric company, or gas company " for "railroad or electric company" ; substituted the present provisions of subsection (d) for the former provisions, which read: "Whenever any railroad or electric company incorporated under the laws of this state acquires by purchase, lease, or otherwise the ownership or control of the line of railroad of a competing railroad company in this state, in violation of Article III, Section VI, Paragraph V(c) of the Constitution of the State of Georgia, or whenever any railroad or electric company incorporated under the laws of this state acquires by purchase, lease, or otherwise the ownership or control of the generating plant or transmission line of a competing electric company in this state, in violation of Article III, Section VI, Paragraph V(c) of the Constitution of the State of Georgia, the venue of an action brought against the railroad or electric company for the purpose of setting aside and having annulled such unlawful act of acquisition shall be in any county through which may run the line of railroad or in any county through which may run the transmission line of such electric company or in which may be located the generating plant of such electric company so unlawfully acquired."; substituted the present provisions of the introductory paragraph of subsection (f) for the former provisions, which read: "The following electric companies shall be embraced within the provisions of this Code section:"; and added subsection (g). See Editor's notes for applicability.
Cross references.- Time limitation on actions against railroads for injury to or death of employee, § 34-7-46.
Venue for actions against lessees or possessors of railroads, § 46-8-310.
Venue for actions against receivers, trustees, etc., of railroad companies, § 46-8-314.
Editor's notes.- Ga. L. 2013, p. 551, § 2/HB 194, not codified by the General Assembly, provides that: "This Act shall become effective upon its approval by the Governor or upon its becoming law without such approval and shall apply to causes of actions arising on or after such effective date." The Governor approved this Act on May 6, 2013.
Law reviews.- For article discussing aspects of third party practice (impleader) under the Georgia Civil Practice Act (Ch. 11, T. 9), see 4 Ga. St. B. J. 355 (1968). For article, "Statutes of Limitation: Counterproductive Complexities," see 37 Mercer L. Rev. 1 (1985). For annual survey trial practice and procedure, see 38 Mercer L. Rev. 383 (1986). For annual survey of recent developments, see 38 Mercer L. Rev. 473 (1986). For annual survey on trial practice and procedure, see 43 Mercer L. Rev. 441 (1991). For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972).
JUDICIAL DECISIONSANALYSIS
General Consideration
Venue provisions constitutional.
- The mandatory venue provisions of O.C.G.A. § 46-1-2(c) were not impliedly repealed by the venue provisions of the Georgia Business Corporation Code, O.C.G.A. Ch. 2, T. 14, and do not violate the equal protection guarantees of the federal constitution. Driskell v. Georgia Power Co., 260 Ga. 488, 397 S.E.2d 285 (1990).
Purpose of section.
- The scheme of O.C.G.A. § 46-1-2 is to make the jurisdiction exclusive in the county where the cause of action originates when there is such resident agent, but elective when there is not. Devereux v. Atlanta Ry. & Power Co., 111 Ga. 855, 36 S.E. 939 (1900).
The combined intent of this O.C.G.A. §§ 46-1-2 and46-2-90 is to provide for the recovery of compensatory and exemplary damages as well as attorney fees for the tortious infliction of property damages upon the owner or possessor of property where the damage is inflicted as the result of a wilful act. Southern Ry. v. Malone Freight Lines, 174 Ga. App. 405, 330 S.E.2d 371 (1985).
No distinction made as to how actions begin.
- O.C.G.A. § 46-1-2 makes no distinction as to how actions begin, whether by petition and process or by the levy of an attachment, but refers to "any judgment" in any action against "all railroad * * * companies." Grand Trunk W.R.R. v. Barge, 75 Ga. App. 646, 44 S.E.2d 281 (1947).
Construction with state constitution.
- Former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) must be construed in connection with Ga. Const. 1976, Art. VI, Sec. XIV, Para. IV (see Ga. Const. 1983, Art. VI, Sec. II, Para. IV). Southern Ry. v. Wooten, 110 Ga. App. 6, 137 S.E.2d 696 (1964).
Increased venue for actions against railroad corporations.
- The only exceptions to the general rule that a railroad corporation must be sued in the county where its principal office is located are contained in Ga. L. 1898, p. 50, § 1 (see O.C.G.A. § 46-1-2). McCall v. Central of Ga. Ry., 120 Ga. 602, 48 S.E. 157 (1904).
Applicability to railroad companies.
- Provisions of former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) applied to all railroad companies, without regard to whether they were corporate companies or not, and without regard to whether they were domestic or foreign. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).
Former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) was not applicable to action against railroad company for injuries sustained in foreign state on account of the negligence of the agents and servants of the company in that state. Atlanta, K. & N. Ry. v. Wilson, 116 Ga. 189, 42 S.E. 356 (1902); Reeves v. Southern Ry., 121 Ga. 561, 49 S.E. 674, 70 L.R.A. 573, 2 Ann. Cas. 207 (1905).
Injuries sustained in foreign state.
- Former Code 1910, § 2798 (see O.C.G.A § 46-1-2) did not apply if action was for injuries sustained in foreign state. Louisiana State Rice Milling Co. v. Mente & Co., 173 Ga. 1, 159 S.E. 497 (1931); Neal v. CSX Transp., Inc., 213 Ga. App. 707, 445 S.E.2d 766 (1994).
Foreign corporation is nonresident.
- Foreign corporation would have no residence in this state. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).
Section is mandatory.
- Former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) did not allow a railroad company, expressly or by silence, to give jurisdiction to the court of a county other than that in which the tort was committed. Its provisions were mandatory. Summers v. Southern Ry., 118 Ga. 174, 45 S.E. 27 (1903).
Action against joint obligors not within section.
- Former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) did not apply to an action on a bond made by a railroad company in a county other than that in which its principal office is located, conditioned to pay damages to another railroad company resulting from the delay incident to the prosecution of a writ of error (see O.C.G.A. §§ 5-6-49 and5-6-50) complaining of the refusal to enjoin the latter company from crossing the tracks of the former in still another county. Waycross Air-Line R.R. v. Offerman & W.R.R., 114 Ga. 727, 40 S.E. 738 (1902).
Section not applicable to joint action of trespass.
- Where the company and third person are joint trespassers, former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) did not determine the venue of the action. Central of Ga. Ry. v. Brown, 113 Ga. 414, 38 S.E. 989, 84 Am. St. R. 250 (1901).
Cited in Hodges v. Atlantic & G.R.R., 51 Ga. 244 (1874); Central R.R. v. Flournoy, 69 Ga. 763 (1882); Mitchell v. Southwestern R.R., 75 Ga. 398 (1885); Atlanta & F.R.R. v. Western Ry., 50 F. 790 (5th Cir. 1892); Southern Ry. v. Brock, 115 Ga. 721, 42 S.E. 65 (1902); LeCroix v. Western & A.R.R., 118 Ga. 98, 44 S.E. 840 (1903); Southern Ry. v. Grizzle, 124 Ga. 735, 53 S.E. 244, 110 Am. St. R. 191 (1906); Southern Ry. v. Moore, 133 Ga. 806, 67 S.E. 85, 26 L.R.A. (n.s.) 851 (1910); Wright v. Southern Ry., 7 Ga. App. 542, 67 S.E. 272 (1910); Atlanta, B. & A.R.R. v. Atlantic Coast Line R.R., 138 Ga. 353, 75 S.E. 468 (1912); Atkinson v. Olmstead, 140 Ga. 100, 78 S.E. 720 (1913); Flint River & N.E.R.R. v. Sanders, 18 Ga. App. 766, 90 S.E. 655 (1916); Ocilla S.R.R. v. McAllister, 20 Ga. App. 400, 93 S.E. 26 (1917); Davis v. Seigel, 28 Ga. App. 418, 111 S.E. 439 (1922); Griffler v. Southern Ry., 30 Ga. App. 20, 116 S.E. 655 (1923); Taylor v. Central of Ga. Ry., 31 Ga. App. 374, 121 S.E. 348 (1923); Atlantic Log & Export Co. v. Central of Ga. Ry., 42 Ga. App. 256, 155 S.E. 530 (1930); De Loach v. Southeastern Greyhound Lines, 49 Ga. App. 662, 176 S.E. 518 (1934); Harrison v. Neel Gap Bus Line, 51 Ga. App. 120, 179 S.E. 871 (1935); Kwilecki v. Young, 180 Ga. 602, 180 S.E. 137 (1935); Powell v. First Nat'l Bank, 58 Ga. App. 648, 199 S.E. 668 (1938); Georgia Power Co. v. Blum, 80 Ga. App. 618, 57 S.E.2d 18 (1949); Ledger-Enquirer Co. v. Brown, 213 Ga. 538, 100 S.E.2d 166 (1957); Gurley v. Hardwick, 98 Ga. App. 334, 106 S.E.2d 53 (1958); Studdard v. Evans, 108 Ga. App. 819, 135 S.E.2d 60 (1964); Southern Ry. v. Pruitt, 121 Ga. App. 530, 174 S.E.2d 249 (1970); Fowler v. Aetna Cas. & Sur. Co., 159 Ga. App. 190, 283 S.E.2d 69 (1981).
Definitions
"Injury to property" defined.
- The expression "injury to property" is used, in its broad and general sense, and is broad enough to comprehend a wrongful conversion of property. Crawford v. Crawford, 134 Ga. 114, 67 S.E. 673, 28 L.R.A. (n.s.) 353, 19 Ann. Cas. 932 (1910); Lamb v. Howard, 145 Ga. 847, 90 S.E. 63 (1916).
Constructor of plant not "electric company."
- A general contracting corporation, engaged in the construction of a tunnel, building a dam and power house, is not an "electric company" within the meaning of Ga. L. 1912, p. 66 (see O.C.G.A. § 46-1-2). Northern Contracting Co. v. Maddux, 144 Ga. 686, 87 S.E. 892 (1916).
What constitutes an agent of a railroad.
- For service upon a railroad corporation to be effectual by reason of service upon an agent, at the time of the service the person must be its agent. Pennington & Evans v. Douglas, A. & G. Ry., 6 Ga. App. 854, 65 S.E. 1084 (1909), later appeal, 10 Ga. App. 288, 73 S.E. 425 (1912).
Agent of state not agent of corporation under receivership.
- An agent of the state, under a receiver who has possession of the road in consequence of a seizure by the Governor for nonpayment of interest on bonds which the state has endorsed, is not the agent of the corporation. Cherry v. North & S.R.R., 59 Ga. 446 (1877).
Classification of electric companies within meaning of this section.
- The fact that electric membership corporations have by the law extended to them privileges and enjoy certain immunities not granted to other corporations does not of itself remove them from the category of electric companies within the definition contained in former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2). Since the act creating such corporation empowers them to do nothing else but generate and transmit electric energy, and to perform functions incidental thereto, they must be classified as a species of electric companies within the meaning of that section. Lamar Elec. Membership Corp. v. Carroll, 89 Ga. App. 440, 79 S.E.2d 832 (1953).
Distinction between electric corporations within contemplation of this section.
- If the entire benefit of the sole enterprise upon which the electric membership corporation was empowered by its charter to enter inures to the general public and no profit or improvement of the economic condition or desires of its stockholders or members was contemplated, the corporation could not be said to be in business within the contemplation of former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2), but a corporation whose stockholders, by whatever name they may be designated, derive from the transaction of the business a profit in money or improvement in their economic conditions, was engaged in business within the contemplation of the above mentioned section, and was subject to the jurisdiction of the courts, under the same rules of practice that other electric corporations are. Lamar Elec. Membership Corp. v. Carroll, 89 Ga. App. 440, 79 S.E.2d 832 (1953).
Statute of Limitations
Limitation of action.
- Former Civil Code 1910, § 2640 (see O.C.G.A § 46-1-2) had no application to an action brought by a railway company to recover the difference between the amount actually collected as freight and that which should have been collected under the rules of the commission; and such an action would not be barred if brought within four years from the accrual of the right of action. Central of Ga. Ry. v. Eatonton Lumber Co., 14 Ga. App. 302, 80 S.E. 725 (1914).
Statute of limitations tolled by suit in wrong county.
- An action brought in the wrong county, contrary to former Civil Code 1910, § 2798 (see O.C.G.A § 46-1-2), may be the basis of a renewed action, tolling the statute of limitations, as provided by former Civil Code 1910, § 4381 (see O.C.G.A § 46-1-2) § 9-2-61. Lamb v. Howard, 150 Ga. 12, 102 S.E. 436 (1920).
No right of renewal outside limitations period.
- Under former Code 1882, § 719 (see O.C.G.A § 46-1-2), bringing an action within 12 months was a condition precedent, and the right of renewal within six months after the dismissal of one action, though more than 12 months from the time the right of action accrued, did not exist under that section. Parmelee v. Savannah F. & W. Ry., 78 Ga. 239, 2 S.E. 686 (1886).
Pleading and Practice
Sufficiency of pleading in tort action against railroad.
- It has been held under former Code 1873, § 3406 (see O.C.G.A § 46-1-2) that a declaration against a railroad company showing upon its face that the company was duly chartered under the laws of this state, and complaining that it damaged the plaintiffs by constructing a railroad upon their land in the county in which the action was located, showed substantially, though not in accurate form, that the railroad of the company was wholly or partly in that county. East Ga. & F. R.R. v. King, 91 Ga. 519, 17 S.E. 939 (1893); Gilbert v. Georgia R.R. & Banking Co., 104 Ga. 412, 30 S.E. 673 (1898).
Sufficiency of pleading in contract action against railroad.
- In an action against a railroad company on a contract instituted in a county other than the one where its chief office of business is located, the pleadings should show that the contract was either made or was to be performed in the county where such action was brought. Corley & Dassett v. Georgia R.R. & Banking Co., 49 Ga. 626 (1873).
Jurisdictional defect is amendable.
- Failure to show jurisdiction, is an amendable defect in a petition, and unless such defect is challenged by demurrer (now motion to dismiss), and opportunity given to amend, a dismissal entered for another and different reason will not be upheld because of such omission. Burton v. Wadley S. Ry., 25 Ga. App. 599, 103 S.E. 881 (1920).
Relevance of allegations of willful conduct to recovery of exemplary damages.
- In an action for damages sustained on account of a violation of a rule of the commission, exemplary damages may be recovered, if it appears that the conduct of the company amounted to a willful violation of law under former Civil Code 1895, § 2197 (see O.C.G.A § 46-1-2); and therefore allegations of the petition which, if proved, would throw light on the question as to whether the conduct of the company was willful, should not be stricken as irrelevant and impertinent. Augusta Brokerage Co. v. Central of Ga. Ry., 121 Ga. 48, 48 S.E. 714 (1904).
Evidence must show injury occurred in county where action brought.
- In actions against railway and electric companies, it is essential, for the rendition of a valid judgment, that it be shown by evidence that the alleged injury occurred in the county in which the action was brought. Georgia Power Co. v. Woodall, 48 Ga. App. 85, 172 S.E. 76 (1933).
Mandamus by shipper.
- A railroad company owes to the public a duty to obey the reasonable tariff rates fixed by the commission, and a shipper, whose shipment has been rejected on the ground that one of the rates of the commission's schedule is, in the opinion of the carrier, too low, has such special interest in the observance by the railroad company of its duty to the public in this regard as that one may compel its performance by mandamus. Southern Ry. v. Atlanta Stove Works, 128 Ga. 207, 57 S.E. 429 (1907).
Election of assignee between action in tort or on contract.
- Under former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2), it has been held that where the assignee of a bill of lading has the option to sue the carrier either in tort or for a breach of the contract, and elects the former remedy, and the case is dismissed for want of jurisdiction, the election to proceed in tort does not prevent a subsequent action on the contract. Louisville & N.R.R. v. Pferdmenges, Preyer & Co., 8 Ga. App. 81, 68 S.E. 617 (1910).
Service of Process
Sufficiency of service on agent.
- Where an action was brought against a railroad company in the county where the injury complained of took place, and the sheriff returned that the sheriff had served a certain person as agent for defendant at the depot in that county, and a second original of the declaration and process also had been served upon the president of the company, such service was sufficient. Mitchell v. Southwestern R.R., 75 Ga. 398 (1885), overruled on other grounds, Woodley v. Coker, 119 Ga. 226, 46 S.E. 89 (1903).
Personal service upon a ticket-agent in charge of a ticket office of a railroad company, and selling tickets and handling passenger business for it is sufficient service. Seaboard Air-Line Ry. v. Browder, 144 Ga. 322, 87 S.E. 6 (1915).
Construction of provisions concerning service on domestic and foreign railroads.
- Former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) provided that if the carrier by rail had no agent in the county where the accident took place, then plaintiff may sue the company in that county and service may be perfected by the issuance of a second original to be served upon said company in the county of its principal office and place of business, if in this state, and if not, on any agent of such company, or suit may be brought in the county of the residence of such company. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).
Jurisdiction and Venue
1. In General
Defendant cannot waive jurisdiction where improper venue in action against railroad.
- Where former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2), relating to venue of actions against railroad companies, was applicable, it was exclusive; an action brought elsewhere than was there provided, was void, and the defendant cannot waive the question of jurisdiction by pleading to the merits. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).
Party not required to bring suit in county where injury occurred.
- For the purpose of determining the venue in a suit against a railroad, the language used in O.C.G.A. § 46-1-2 is permissive; thus, a party has the option of bringing suit in the county where an injury occurred, rather than being required to bring suit therein. Southern Ry. v. Lawson, 174 Ga. App. 101, 329 S.E.2d 288 (1985).
Venue of action for injuries by previous owner.
- Former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) did not apply to an action brought against a railroad company having its principal office in this state, to recover upon the liability attaching to it as the purchaser or successor in title of another corporation or an individual, to whom the injuries alleged were primarily chargeable. White v. Atlanta, B. & A.R.R., 5 Ga. App. 308, 63 S.E. 234 (1908).
2. In Tort Actions
Venue provisions of construed.
- Former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) provided that where the railroad company has an agent in the county where the cause arose action shall be brought therein, but that where the company has no agent there, the person injured can sue the railroad where it has its principal place of business or in the county of its residence. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).
If there is an agent of the railroad company in the county where the cause of action arose, jurisdiction of the action in that county is mandatory, but it is elective with the person injured as to whether the person shall bring an action in the county where the cause of action originated or in the county where the company has its principal place of business or the county of its residence, where there is no agent of the defendant railroad company in the county where the cause originated. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).
Venue of action where absence of agent in county where tort occurred.
- Under former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) an action against a railway company for a tort may be brought in the county of the residence of the company when it had no agent in the county where the cause of action arose. Georgia S. & F. Ry. v. Pearson, 120 Ga. 284, 47 S.E. 904 (1904); Southwestern R.R. v. Vellines, 14 Ga. App. 674, 82 S.E. 166 (1914).
Jurisdiction exclusive where agent has residence in county where cause of action originates.
- Since the sole jurisdictional fact is the place of the origin of the cause of action, and the statute has not superadded the further fact of the residence of an agent as one requisite to jurisdiction, it must be held that the scheme of the law is to make the jurisdiction exclusive in the county where the cause of action originates when there is such residence, but elective when there is not. United Motor Freight Term. Co. v. Driver, 74 Ga. App. 244, 39 S.E.2d 496 (1946).
Provisions jurisdictional in nature and cannot be waived.
- Provisions such that "railroad and electric companies shall be sued by anyone whose person or property has been injured . . . for the purpose of recovering damages for such injuries, in the county in which the cause of action originated . . ." are jurisdictional in their nature and cannot be waived. Southern Ry. v. Wooten, 110 Ga. App. 6, 137 S.E.2d 696 (1964).
Venue in tort actions against railroad or electric companies.
- Former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) provided that, as to tort actions against railroad or electric companies, action must be brought in the county where the damage or injury occurred. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).
Wife and the estate cited no authority that the presence of the driver authorized suit against the owner/electric company in any county other than the county where the driver resided or where the accident occurred. Pullum v. Sewell, 257 Ga. App. 553, 571 S.E.2d 552 (2002).
Proper venue in county of residence of either tort-feasor.
- An action against a railroad and another as joint tort-feasors may be brought in the county of the residence of the individual tort-feasor; and, the fact that the individual tort-feasor is the servant of the railroad and the servant's negligence is the only negligence charged against the railroad, will not alter the rule. Southern Ry. v. Wooten, 110 Ga. App. 6, 137 S.E.2d 696 (1964).
Venue of joint and several action against company and another tort-feasor.
- A joint and several action can be brought against a railroad company and another tort-feasor, and as against the railroad company and its employee, a conductor or engineer, and the action can be brought in the county where the cause of action originated and service perfected by second original, and this is true even though neither defendant resides or has an agent in that county; the same principle is applicable to an action against a motor common carrier and the driver of its motor vehicle for a tort. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).
Futile action where court without jurisdiction due to improper venue.
- An action against a common carrier by rail for damages on account of an injury sustained by reason of the negligence of the railroad company in the operation of one of its trains would have to be brought in the county where the injury took place, if the company had an agent in that county; otherwise, the action would be futile, the court not having jurisdiction of the case and any judgment therein void. Modern Coach Corp. v. Faver, 87 Ga. App. 221, 73 S.E.2d 497 (1952).
Venue of action where continuous tort to passenger.
- The county in which the transportation and the alleged injuries commenced is not a wrong venue for an action by a passenger against a carrier who tortiously and continuously failed to provide for the plaintiff's comfort during a journey from a point in this state to a point in another state. Bryant v. Atlantic C. L. R.R., 19 Ga. App. 536, 91 S.E. 1047 (1917).
Former Civil Code 1910, § 2798 (see O.C.G.A § 46-1-2)was applicable in a case where a passenger brought an action in tort against a railroad company for negligence in carrying the passenger beyond the passenger's destination in a particular county and through that county into another state, where further damages result from the continued wrong; and where the railroad company had an agent in the county where the tort originated, the venue of an action for such injury was exclusively in that county. Southern Ry. v. Clark, 162 Ga. 616, 134 S.E. 605 (1926).
Venue of action for homicide.
- An action under former Code 1868, § 2920 (see O.C.G.A § 51-4-2) by a widow against a railroad company for the homicide of her husband may, under Ga. L. 1869, p. 14 (see O.C.G.A. § 46-1-2), be tried in the county where the killing was done, although such county was not that in which, by the charter, the principal place of business of the company was located. Georgia R.R. & Banking Co. v. Oaks, 52 Ga. 410 (1874).
No matter where the contract of employment by the company with the agent was made, the homicide being committed at the place where the agent was assigned to duty, and where the agent was serving the company at the time of the wrongful act, thus the cause of action originated at that place, and the superior court of that county had jurisdiction. Christian v. Columbus & R. Ry., 79 Ga. 460, 7 S.E. 216 (1887).
Venue of action for failure to build spur track.
- Where a common carrier neglected or refused to obey an order of the Railroad Commission (now Public Service Commission), requiring it to build a spur or side-track in a certain county, and action was brought by an individual to recover for damage, resulting therefrom, the venue of the action was not determined by former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2). English v. Central of Ga. Ry., 7 Ga. App. 263, 66 S.E. 969 (1910).
Action for false arrest of passenger.
- If, after the arrest of a person stealing a ride, the train stops at a station in another county, and the plaintiff was there delivered to an officer and imprisoned, and if the detention, failure to prosecute, or other act in such latter county gave rise to a cause of action, former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) imperatively required that action should be there brought. Summers v. Southern Ry., 118 Ga. 174, 45 S.E. 27 (1903).
Action against initial carrier in county of destination.
- Where there is an interstate shipment of goods and they are damaged in transit, the superior court of the county of the destination of the shipment has jurisdiction of an action for damages therefor against the initial nonresident carrier. Adair v. Atlantic C.L.R.R., 21 Ga. App. 564, 94 S.E. 840, cert. denied, 21 Ga. App. 825 (1918).
3. In Contract Actions
Venue and jurisdiction involved in portion of statute concerning contract actions.
- Portion of former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) dealing with contract actions related, not to venue merely, but to the jurisdiction of the court over the subject matter involved. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).
Construction of venue provisions relating to breach of contract actions against railroads.
- Under the provisions of former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2), all actions against railroads for breach of contract must be brought in the county in which the contract in question was made or was to be performed; any judgment rendered in any county other than those so designated shall be utterly void, with the exception that, if the cause of action shall arise in a county in which the defendant railroad had no agent, the action may then be brought in the county of residence of the defendant. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).
Proper venue in contract matter involving railroad corporation.
- If the sole responsibility of the obligor in a contract is to pay over a sum of money upon a certain contingency arising, then the venue of the action is properly laid at the home office of the railroad corporation which is liable for such sum, and a demand therefor must also be made at such home office, in the county of its residence. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).
Election between counties by plaintiff to contract.
- Under former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) railroad companies are suable, on causes of action arising upon contracts, either in the county in which the contract is made, or in the county in which it is to be performed, at the option of the plaintiff. Central of Ga. Ry. v. Crapps, 4 Ga. App. 550, 61 S.E. 1126 (1908).
Judgment unauthorized where mandatory and exclusive venue criteria unmet.
- In an action on a contract against a defendant railroad in this state, the provisions of former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2) relating to the county in which the action shall be laid are mandatory and exclusive, and refer to the jurisdiction of the court over the subject matter involved; accordingly, a judgment for the plaintiff in such action is unauthorized where it does not affirmatively appear (a) that the contract was entered into, or (b) the work was to be performed in the county in which the action was laid, or (c) that the defendant railroad has no agent upon whom service may be perfected in such counties. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).
Judgment void where requirements of venue provisions unmet.
- Where it is neither alleged nor proved, in an action against a railroad company based on a contract, that the suit is brought in the county where the contract was made or to be performed, or if brought in the county of residence of the defendant, that there is no agent in such counties upon whom service may be perfected, the judgment in such action is utterly void. Georgia, A., S. & C. Ry. v. Atlantic C.L.R.R., 88 Ga. App. 426, 76 S.E.2d 724 (1953), cert. denied, 350 U.S. 887, 76 S. Ct. 142, 100 L. Ed. 782 (1955).
4. Actions Against Foreign Corporations
Applicability to foreign corporations.
- Former Civil Code 1895, § 2334 (see O.C.G.A § 46-1-2) fixing the venue of actions against railroad companies, applied to foreign as well as domestic corporations. Mitchell v. Southern Ry., 118 Ga. 845, 45 S.E. 703 (1903); Bracewell v. Southern Ry., 134 Ga. 537, 68 S.E. 98 (1910).
Venue in action against foreign corporation having no residence in this state.
- A foreign corporation not operating under a domestic franchise, has no residence in this state, and the action, if brought in this state, must be brought in the county in which the cause of action originated, whether the defendant has an agent in that county or not. Coakley v. Southern Ry., 120 Ga. 960, 48 S.E. 372 (1904).
Required procedure where foreign railroad companies involved in actions.
- While foreign railroad companies are subject to action by attachment or in personam for any cause of action arising in Georgia and the plaintiff may proceed by attachment and secure a lien on property of said company located in Georgia, the attachment must be returned to and the case tried in a court having jurisdiction of the attachment in the county designated by the provisions of former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2), for the trial of such case. Grand Trunk W.R.R. v. Barge, 75 Ga. App. 646, 44 S.E.2d 281 (1947).
Proper procedure and venue where attachment against nonresident company.
- Under a proper construction of former Code 1933, § 8-117 and former Code 1933, § 94-1101 (see O.C.G.A § 46-1-2), where an attachment was issued against a nonresident railway company, which was not operating under a domestic franchise and which did not maintain an office, agent or place of business within Georgia, based on a cause of action brought for the purpose of recovering damages for personal injuries sustained by the plaintiff in one of the counties of Georgia by reason of the alleged negligence of such railway company, the attachment must be returned to and tried in the county in which the cause of action originated by a court having jurisdiction of said action. Grand Trunk W.R.R. v. Barge, 75 Ga. App. 646, 44 S.E.2d 281 (1947).
Venue of actions involving foreign motor common carriers.
- Foreign motor common carrier, engaged in the business of trucking, hauling and transporting freight over the various public highways within the state, and having designated a resident agent upon whom service of process can be made, under the clear mandate of former Code 1933, § 68-619 was, so far as the right to sue was concerned, a resident of this state, and a resident of the county in which the cause of action originated, so far as the right to bring an action against it for a cause of action originating in that county was concerned. Southeastern Truck Lines v. Rann, 214 Ga. 813, 108 S.E.2d 561 (1959).
A motor common carrier may be a nonresident corporation, yet since it is engaged in doing business in this state, and has agents in the state for that purpose, it is a resident of this state and a resident of the county in which the cause of action originated, so far as the right to bring an action against it for a cause of action originating in that county is concerned, and, being a resident of that county for the purpose of action, a joint tort-feasor, notwithstanding that the person may reside in another county of this state, may be sued jointly with the motor common carrier in the county in which the cause of action originated. A.G. Boone Co. v. Owens, 51 Ga. App. 739, 181 S.E. 519 (1935).
Circumstances under which action brought in county where cause of action originated.
- If the company has 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 by second original, and such ruling is not contrary to the provisions of the state Constitution that all civil cases, except those enumerated, shall be tried in the county where the defendant resides. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948).
A foreign corporation operating in this state as a motor common carrier may be sued in the county where the cause of action originated, and service on one designated by the corporation for that purpose may be had by second original; it is not necessary, if such foreign corporation have an agent and a place of business in this state, that the action be brought in that county. Tennessee Coach Co. v. Snelling, 51 Ga. App. 432, 180 S.E. 741 (1935).
RESEARCH REFERENCES
Am. Jur. 2d.
- 19 Am. Jur. 2d, Corporations, §§ 2180, 2182-2184, 2192, 2194-2196, 2202, 2206. 65 Am. Jur. 2d, Railroads, §§ 281, 481. 77 Am. Jur. 2d, Venue, § 32.
C.J.S.- 19 C.J.S., Corporations, §§ 717-718. 74 C.J.S., Railroads, § 67. 92 C.J.S., Venue, §§ 79, 80.
ALR.
- Appointment of receiver for railroad as affecting service of process on agent or employee in action against company, 9 A.L.R. 228.
Liability for personal injury to passenger in Pullman car, 41 A.L.R. 1397.
Liability of electric power or light company to patron for interruption, failure, or inadequacy of power, 4 A.L.R.3d 594.
Electric generating plant or transformer station as nuisance, 4 A.L.R.3d 902.
Forum non conveniens: circumstances justifying state court's refusal to take jurisdiction of federal employers' liability act proceeding, 60 A.L.R.3d 964.