O.C.G.A. § 46-7-17 (2019)

Annotations

Cross references. - Provisions of Constitution of Georgia relating to venue in civil cases generally, Ga. Const. 1983, Art. VI, Sec. II, Para. VI. Editor’s notes. - Ga. L. 2000, p. 951, § 13-1, not codified by the General Assembly, provides that the first 2000 Act which amended this Code section becomes fully effective July 1, 2001, but authorizes administrative action commencing April 28, 2000, for purposes of appointing certain officials, adopting rules and regulations, employing personnel, and preparing for and phasing in full implementation; provided, however, that

the Governor may by executive order extend the date for full implementation of the Act to no later than July 1, 2003. In accordance with an executive order issued June 29, 2001, by the Governor, the amendment of this Code section by Ga. L. 2000, p. 951, became fully effective July 1, 2001. Ga. L. 2000, p. 1589, § 16, not codified by the General Assembly, provides that the 2000 amendment is applicable with respect to notices delivered on or after July 1, 2000.

Law reviews. - For comment, ‘‘Personal Jurisdiction Based on Agency by Estoppel,’’ see 4 Ga. St. B.J. 252 (1967).

JUDICIAL DECISIONS In light of the similarity of the provisions, decisions under former Code Section 46-7-62 are included in the annotations for this section. Strict construction of this section. - The provisions of former Code 1933, § 68-618 (see O.C.G.A. § 46-7-17) as to service on nonresident motor carriers are in derogation of common law and are to be strictly construed. Record Truck Line v. Harrison, 109 Ga. App. 653, 137 S.E.2d 65, aff ’d, 220 Ga. 289, 138 S.E.2d 578 (1964). Former Code 1933, § 68-618 (see O.C.G.A. § 46-7-17), being in derogation of the common law, will not be extended beyond the mode fixed by the legislature and shall be strictly and literally construed. Norris Candy Co. v. Dixie Hwy. Express, Inc., 102 Ga. App. 665, 117 S.E.2d 250 (1960). Former Code 1933, § 68-618 (see O.C.G.A. § 46-7-17), being in derogation of common-law and granting extraterritorial jurisdiction, must be strictly construed. Taylor v. Jones, 123 Ga. App. 476, 181 S.E.2d 506 (1971) (decided under former Code Section 46-7-62). Section is not mandatory. - Former Code 1933, § 68-618 (see O.C.G.A. § 46-7-17) was not to be construed as mandatory as respects the venue of a tort action against a motor common carrier being in the county in which the cause of action originated. De Loach v. Southeastern Greyhound Lines, 49 Ga. App. 662, 176 S.E. 518 (1934). Applicability of subsection (a). - The provisions of subsection (a) of former Code 1933, § 68-618 (see O.C.G.A. § 46-7-17) were are applicable only to those situations

in which the cause of action arose out of the carrier’s operations in this state. Record Truck Line v. Harrison, 110 Ga. App. 520, 139 S.E.2d 153 (1964); Mathews v. Rail Express, Inc., 836 F. Supp. 873 (N.D. Ga. 1993). Venue of personal injury action. - Even though a nonresident interstate motor common carrier was registered in Georgia and had a registered agent for service of process, venue of a personal injury action against the carrier and nonresident driver was proper only in the county in which the accident occurred, not where the carrier’s registered office was maintained. Southern Drayage, Inc. v. Williams, 216 Ga. App. 721, 455 S.E.2d 418 (1995). Payment of money determines applicability of subsection (a). - In determining whether an entity is a ‘‘motor contract or common carrier’’ such that the substituted service provisions of subsection (a) of O.C.G.A. § 46-7-17 and § 46-7-62(a) (now repealed) apply, the inquiry must focus on the payment of money for the transportation of the goods or people. Ellerbee v. Interstate Contract Carrier Corp., 183 Ga. App. 828, 360 S.E.2d 280 (1987). Language refers to carrier operations upon highways of this state. - When the words ‘‘motor common carrier’’ were used in subsection (a) of former Code 1933, § 68-618 (see O.C.G.A. § 46-7-17), they refered to motor common carriers using the public highways of this state; and in providing that such nonresident motor common carrier shall designate an agent for service in this state upon whom service may be perfected ‘‘in any action or proceeding against

such motor common carrier growing out of its carrier operations,’’ it necessarily refered to carrier operations upon the highways of this state. Record Truck Line v. Harrison, 220 Ga. 289, 138 S.E.2d 578 (1964). Out-of-state accident. - Georgia court had no personal jurisdiction over a trucking company licensed in Georgia as a nonresident motor common carrier, where it was undisputed that the traffic accident involving the trucking company occurred outside the State of Georgia. Tuck v. Cummins Trucking Co., 171 Ga. App. 485, 320 S.E.2d 265 (1984); Mathews v. Rail Express, Inc., 836 F. Supp. 873 (N.D. Ga. 1993) (decided under former Code Section 46-7-62). Burden of proving vehicle exempt from definition of ‘‘motor contract carrier’’. - On the question of whether a carrier was a ‘‘motor contract carrier’’ subject to suit in the county of the accident pursuant to subsection (b) of former § 46-7-62 the burden of proof was on the truck owner to show that its truck came within the exemption from the definition of ‘‘motor contract carrier’’ found in former § 46-1-1(8)(c) and there was no burden on plaintiffs to prove that the truck was not within the exemption. Georgia Cas. & Sur. Co. v. Jernigan, 166 Ga. App. 872, 305 S.E.2d 611 (1983) (decided under former Code Section 46-7-62). Venue provision is permissive and cumulative. - Former Code 1933, § 68-618 (see O.C.G.A. § 46-7-17) did not make mandatory the bringing of such action against a motor common carrier in the county where the cause of action originated, but was purely permissive and cumulative. Harrison v. Neel Gap Bus Line, 51 Ga. App. 120, 179 S.E. 871 (1935). Venue provision inapplicable to vehicles of state or political subdivision. - In action against county hospital authority and ambulance driver by automobile accident victim, the hospital authority was exempt from the venue provision of O.C.G.A. § 46-7-17 under the exemption provided for vehicles operated by any state or subdivision thereof in former § 46-1-1(7)(C)(viii). Calhoun County Hosp. Auth. v. Walker, 205 Ga. App. 259, 421 S.E.2d 777 (1992), cert. denied, 205 Ga. App. 899, 421 S.E.2d 777 (1992). Not all venue options applicable to nonresident carrier. - The last sentence of subsection (b) of O.C.G.A. § 46-7-17 does

not mean that any and all venue provisions relative to an action against an insurer are applicable, at the election of the plaintiff, in a tort action against a motor carrier. What the sentence does mean is that its venue provisions are not exclusive with regard to a suit against a motor carrier and that venue can be predicated upon any statute which is otherwise applicable. Thomas v. Bobby Stevens Hauling Contractors, 165 Ga. App. 710, 302 S.E.2d 585 (1983). Venue in action arising out of transaction in this state against nonresident carrier. - It is provided that an action against a nonresident motor common carrier may be brought in the county where the cause of action or some part thereof arose, this does not have the effect of restricting or limiting the venue in that respect; this provision contemplates an action arising out of a transaction in this state, but even then it does not require that the action be brought in the county where it arose. Parker v. Ryder Truck Lines, 150 Ga. App. 163, 257 S.E.2d 18 (1979). Venue proper in county of registered office. - In an action against a trucking company, venue was proper in the county in which the company had its office properly registered with the secretary of state, not in the county of residence of the company’s designated registered agent for service of process. Rock v. Ready Trucking, Inc., 218 Ga. App. 774, 463 S.E.2d 355 (1995). Residence of foreign carrier where cause of action originated. - A 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, § 68-618 (see O.C.G.A. § 46-7-17), 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). Alternative venue for actions against carriers. - Under former Code 1933, § 68-618 (see O.C.G.A. § 46-7-17), a motor carrier ‘‘may be’’ sued in the county where the cause of action originated or may be sued in

the county where it maintained its principal office and place of business, and this was so, regardless of whether the motor carrier had an agent in the jurisdiction wherein the cause of action originated. Modern Coach Corp. v. Faver, 87 Ga. App. 221, 73 S.E.2d 497 (1952). Permissible venue in county where cause of action originated despite residence of defendants. - 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 an action, a joint tort-feasor, notwithstanding that the joint tortfeasor 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). A joint cause of action against a motor common carrier, which is a domestic corporation, against its servant and employee, and against the insurance carrier of the motor common carrier, a nonresident corporation with an agent for service in this state, for damages alleged to have been sustained by the negligent operation of the motor vehicle of the motor common carrier, may be brought in the county wherein the cause of action originated, although none of the defendants are residents of such county or have agents therein. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948). Lack of agent in county where action originated does not preclude venue therein. - An action against a motor common carrier, except where the Constitution of this state otherwise provides, may be brought and maintained in any county in this state in which the cause of action originated, for damages for an injury to person or property by the operation of the vehicles of such motor common carrier, although it may not have an agent in that county upon whom service of the suit may be perfected. A.G. Boone Co. v. Owens, 51 Ga. App. 739, 181 S.E. 519 (1935).

Same venue principles applicable to carriers as to railroad companies. - Under former Code 1933, § 94-1101 (see O.C.G.A. § 46-1-2), 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 suit can be brought in the county where the cause of action originated and service perfected by second original, and this was true even though neither defendant resided or had an agent in that county; the same principle was applicable to a suit 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). Venue as to nonresidents. - Venue of action against nonresidents may be maintained under § 40-12-3 as well as former Code 1933, § 68-618 (see O.C.G.A. § 46-7-17). Parker v. Ryder Truck Lines, 150 Ga. App. 163, 257 S.E.2d 18 (1979). Conferring of qualified residence upon nonresident motor carrier. - Former Code 1933, § 68-514 controlled qualified residence upon nonresident motor contract carrier for purposes of action such that a resident joint tort-feasor may be joined in an action against it in the county where the injury occurred although the joint tort-feasor is a nonresident of such county, and although the defendant corporation has no office or place of doing business therein. Pate v. Brock, 95 Ga. App. 594, 98 S.E.2d 404 (1957) (decided under former Code Section 46-7-62). No misjoinder where proper action brought against parties. - It being alleged that the driver of the motor vehicle was engaged in carrying out the duties of the driver’s employment as a driver for a common carrier at the time of the accident, and it appearing that the casualty company was the insurance carrier of the motor carrier, the action was properly brought against the three named defendants, and there was no misjoinder. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948). Cited in Lee v. Acme Freight Lines, 54 F. Supp. 397 (S.D. Ga. 1944); United Motor Freight Term. Co. v. Driver, 74 Ga. App. 244, 39 S.E.2d 496 (1946); American Fid. & Cas.

Co. v. Farmer, 77 Ga. App. 166, 48 S.E.2d 122 (1948); Dependable Ins. Co. v. Gibbs, 218 Ga. 305, 127 S.E.2d 454 (1962); Delcher Bros. Storage Co. v. Ward, 134 Ga. App. 686, 215 S.E.2d 516 (1975); Dove v. National Freight, Inc., 138 Ga. App. 114, 225 S.E.2d

477 (1976); Irving Com. Corp. v. Sound Floor Coverings, Inc., 595 F. Supp. 536 (N.D. Ga. 1984); Gault v. National Union Fire Ins. Co., 208 Ga. App. 134, 430 S.E.2d 63 (1993); Cooper v. Edwards, 235 Ga. App. 48, 508 S.E.2d 708 (1998).

RESEARCH REFERENCES Am. Jur. 2d. - 13 Am. Jur. 2d, Carriers, § 287. 14 Am. Jur. 2d, Carriers, §§ 595, 1130. C.J.S. - 61 C.J.S., Motor Vehicles, §§ 992 et seq., 1025, 1026. ALR. - State regulation of carriers by motor vehicle as affected by interstate commerce clause, 47 ALR 230; 49 ALR 1203; 62

ALR 52; 85 ALR 1136; 109 ALR 1245; 135 ALR 1358. Constitutionality of statutes which permit action against trucking or bus company for injury to person or property to be brought in any county through or into which the route passes, and providing for the service of process in such cases, 81 ALR 777.