Opinion
36051.
DECIDED APRIL 3, 1956. REHEARING DENIED APRIL 25, 1956.
Action on account. Before Judge Butler. Bibb Civil Court. October 25, 1955.
John J. McCreary, for plaintiff in error.
Martin, Snow Grant, contra.
Service of a nonresident by service on the Secretary of State under the Nonresident Motorists Act (Ga. L. 1937, pp. 732, 733; Code, Ann. Supp., § 68-801) applies only to actions allegedly arising out of "any accident or collision in which any such nonresident user may be involved by reason of the operation by him, for him, or under his control or direction, express or implied, of a motor vehicle on any such highways, streets, or public roads" in this State; therefore, under the facts of this case, the Civil Court of Bibb County did not have jurisdiction of the defendant by reason of attempted service on him by service on the Secretary of State.
DECIDED APRIL 3, 1956 — REHEARING DENIED APRIL 25, 1956.
J. M. Aldrich sued J. D. Johns, a resident of Gadsden, Etowah County, Alabama, in the Civil Court of Bibb County under the Nonresident Motorists Act to recover accounts for professional medical services, which accounts were assigned to the plaintiff by certain physicians in Macon, Georgia. The petition alleges that the medical services were rendered to two employees of the defendant, who suffered injuries in a collision in Monroe County, Georgia, on July 1, 1954, when the employees were operating a truck owned by the defendant. The petition further alleges: "6. Under the Workmen's Compensation Law of Alabama (Sec. 26-253-325) the rights of parties subject thereto are adjudicated in a court of record instead of by a Board; employers are liable for medical, surgical and hospital expenses to employees (Sec. 26-285) in an amount in excess of plaintiff's claim; and defendant had legal and actual knowledge of said employees' injuries in October, 1954, or earlier. 7. Said defendant fails and refuses to pay said amount although payment has been requested, and petitioner subjoins a copy of said transfers as Exhibit A. 8. Defendant's Attorney in Fact for the service of process is the Secretary of State, State Capitol, Atlanta, Georgia, as provided by Title 68, Sec. 801 et seq. Code of Georgia, and defendant's business address in Gadsden is c/o United Engineering Company, which he operates." Plaintiff amended his petition by alleging: "Plaintiff and his assignors were not parties to any alleged Workmen's Compensation proceeding or lump sum settlement or release of defendant, nor did they or any of them have any notice or opportunity to appear or intervene therein, nor are they bound thereby; and plaintiff says that it was defendant's own failure to make payment to the parties entitled thereto that has resulted in this action, and defendant should suffer said loss rather than plaintiff or his assignors"; and by adding the following second count: "1. J. D. Johns, hereinafter called defendant, is a resident of Gadsden, Etowah County, Alabama. 2. Defendant is indebted to petitioner, as transferee of Dr. J. P. Woodhall and Drs. Benton, Frye and Homeier, in the principal sum of $168.00, with interest thereon from July 1, 1954, for professional services to defendant's employees, James Harrell and Ulysses Wynn. . . . 3. Defendant's said employees were operating a truck on a Monroe County, Georgia, highway on June 1, 1954, while en route from Gadsden, Alabama, to Macon, Georgia, to work on a job which had been contracted to defendant, when said truck was involved in an accident with another vehicle at or near Bolingbroke, Georgia, as a proximate consequence of which accident said Wynn suffered severe second and third degree burns to his face, neck, arms and back, and the said Harrell received similar personal injuries which resulted in his death the following day. 4. Defendant's two employees were not accompanied by any member of either's family, were several hundred miles distant from home and employer, were suffering intense pain from the burns, and were in dire need of immediate medical attention to save their lives or to alleviate their pain, which said services were not available at or near Bolingbroke, Monroe County, Georgia. 5. The circumstances of said employees' injuries and consequent suffering constituted an emergency obligating defendant, their employer, to furnish necessary medical attention and to pay the cost of such necessary medical attention furnished by plaintiff's assignors. 6. Commencing as early as July 8, 1954, plaintiff's assignors, or plaintiff, or plaintiff's attorney have repeatedly requested of defendant and his insurance carrier that payment be made for said emergency services to his, defendant's, employees, to not one of whom has defendant deigned to reply. 7. Defendant now contends, as excusing his refusal to pay for said emergency services, that he has paid to his said employees, or their representatives, the sums due plaintiff's assignors for their services; and plaintiff says that neither he nor his assignors had notice of said alleged payment, nor participated therein, nor consented thereto, nor ratified the same, but that defendant made such alleged voluntary and unauthorized payment at his own peril, without taking due precaution that plaintiff or his assignors would eventually receive it, and defendant, instead of plaintiff or his assignors, should sustain any loss consequent thereto. . . . 9. Defendant's Attorney in Fact for the service of process is the Secretary of State, State Capitol, Atlanta, Georgia, as provided by Title 68, Sec. 801 et seq., Code of Georgia, and defendant's business address in Gadsden is c/o United Engineering Company, 553 Elmwood Avenue, which he operates."
Plaintiff tendered a second amendment, as follows: "Count One. 10. The pertinent and relevant provisions of The Workmen's Compensation Law of Alabama, Title 26, Chapter 5, Code of Alabama, as amended, are: a. `Art. 2, Sec. 293, Medical, surgical and hospital service. In addition to the compensation herein provided, the employer shall pay the actual cost of reasonably necessary medical and surgical treatment and attention, medicine, medical and surgical supplies, crutches and apparatus, as may be obtained by the injured employee during the first ninety days of disability, or in case of death within said ninety days, obtained during the period occurring between the time of the injury and his death therefrom. The total liability of the employer under this section shall not exceed the aggregate of Five Hundred Dollars, and the pecuniary liability of the employer for such services rendered the employee shall be limited to such charges as prevail for similar treatment in the community where such injured employee resides. . . If the employer furnishes such medical and surgical attention and supplies during the ninety day period he shall not be liable under this section, except for such of said services and supplies as may, in an emergency, be procured by the employee elsewhere; in no event, however, shall the total liability hereunder exceed Five Hundred Dollars. . . b. `Art. 2, Sec. 297, Controversy submitted to circuit court. In case of a dispute between employer and employee or between the dependents of a deceased employee and his employer with respect to the right to compensation under Articles 1 and 2 of this Chapter, or the amount thereof, either party may submit the controversy to the circuit court of the county which would have jurisdiction of a civil case in tort between the same parties. Such controversy shall be heard and determined by the judge or judges of said court as would hear and determine a civil action between the same parties arising out of tort and in case there is more than one judge of such court, such controversies shall be set and assigned for hearing under the same rules and statutes that civil actions in tort are set and assigned; such court may hear and determine such controversies in a summary manner. The decision of the judge hearing the same shall be conclusive and binding between the parties, subject to the right of appeal in this article provided for. . . (Ib.)' 11. The provisions of said Sec. 293 import a common law contract between the employer and the physician for services rendered, the employer is liable therefor, and the physician may recover therefor at law. Count Two. 10. The circumstances and condition of the injured employees of defendant presented an emergency demanding prompt action, and Ulysses Wynn, one of the injured employees, requested said treatment and services at his employer's expense. 11. The rule that the mere calling of a doctor to treat another, by one under no legal obligation, does not import an obligation for the doctor's services, has no application to the act of an employer in directing a physician to treat his injured employee, nor to the act of third persons in furnishing emergency medical aid on the employer's credit."
The court sustained the general demurrer to the petition and dismissed the action. Plaintiff excepts to the disallowance of the amendment and to the sustaining of the general demurrer to the petition.
The court sustained the general demurrer to the petition on other grounds than those based on the court's lack of jurisdiction over the defendant. We do not consider the trial judge's reasons for his action. Suffice it that the judgment is correct because under the allegations the court did not have jurisdiction of a nonresident under the facts alleged. The petition shows that the plaintiff seeks to subject the defendant to the jurisdiction of the Civil Court of Bibb County under the Georgia Nonresident Motorists Act. The act is in derogation of common law and must be strictly construed. Mull v. Taylor, 68 Ga. App. 663, 670 ( 23 S.E.2d 595). Furthermore, if it is at all ambiguous or doubtful in meaning, it must receive a constitutional construction if possible. It seems to us that the purpose of the act is to subject a nonresident to the jurisdiction of Georgia courts on the theory that by using Georgia Highways he consents to be sued in Georgia on causes of action arising from an alleged tort liability incurred by his use of the highways. Ga. L. 1937, pp. 732, 733 (Code, Ann. § 68-801). The venue for actions under the act is in courts which have jurisdiction of tort and criminal action. Ga. L. 1937, pp. 732, 734; 1947, p. 305; 1955, p. 650 (Code, Ann. Supp., § 68-803). In this case it is not alleged that the employees' injuries were caused by the tortious use of our highways by the defendant. On any other kind of cause of action the defendant could not be constitutionally sued in a Georgia State court of law without his waiving the court's lack of jurisdiction over his person. "The courts of Georgia have no extraterritorial jurisdiction, and cannot make a citizen of another State amenable to their process, or conclude him by a judgment in personam, without his consent; . . . Pennoyer v. Neff, 95 U.S. 714 (2) ( 24 L. ed. 565); Dearing v. Bank of Charleston, 5 Ga. 497 (5); Bank of Floral City v. Warnock, 144 Ga. 117 (2) ( 86 S.E. 249)." Ford v. Southern Ry. Co., 33 Ga. App. 24 (1) ( 125 S.E. 479). Even if it could be said that the employees' employment of a physician or obtaining medical services in an emergency would bind their employer, either on the theory of implied authority or any other theory, including the workmen's compensation law of Alabama, the courts of Georgia could not acquire jurisdiction under the Nonresident Motorists Act for the reasons stated above.
In Lindsay v. Short, 210 N.C. 287 ( 186 S.E. 239), the Supreme Court of North Carolina said, in considering a North Carolina nonresident motorists statute similar to our own: "We are of the opinion, and so hold, that the foregoing statute does not embrace an action for abuse of process in having the plaintiff arrested. An action for abuse of process cannot be said to be an action growing out of any accident or collision in which the defendant was involved by reason of the operation by him, for him, or under his control or direction, of a motor vehicle on a public highway of this state."
The Civil Court of Bibb County did not have jurisdiction of the defendant by attempted service on the defendant by service on the Secretary of State.
The court did not err in disallowing the second amendment and in sustaining the demurrer to both counts of the petition, pointing out the lack of jurisdiction of the court.
Judgment affirmed. Quillian and Nichols, JJ., concur.