Ga. L. 1937, p. 528. In Lloyd Adams, Inc. v. Liberty Mut. Ins. Co., 190 Ga. 633 ( 10 S.E.2d 46), this language declaring that an injured employee may maintain a suit against a tortfeasor after having accepted payment from him for damages sustained was held to be a legal absurdity, unconstitutional, null and void. The present suit is predicated upon the clearly stricken words "under circumstances creating a legal liability in some person," the insurance carrier of the employer seeking the right of subrogation under Code ยง 114-403 before the 1937 amendment.
W. S. Allen, contra. The effect of the decision in Lloyd Adams Inc. v. Liberty Mutual Ins. Co., 190 Ga. 633, 641 ( 10 S.E.2d 46), declaring the amendment of Code ยง 114-403 unconstitutional, was to leave the original Code section in full force and effect; and applying that section, as it stood prior to the purported amendment of 1937, to the facts of this case, the superior court erred in affirming an award of the State Board of Workmen's Compensation, which granted the claimant additional compensation for injury after it had been made to appear that a judgment for the injury had been obtained against and paid by the third party tortfeasor, such judgment being almost twice the amount of compensation to which the claimant, in any event, would be entitled under the Workmen's Compensation Law. DECIDED MAY 1, 1952 โ REHEARING DENIED JULY 21, 1952.
The Constitution Art. VI, Sec. XIV, Par. VI ( Code ยง 2-4906) applies to corporations as well as to natural persons and therefore a corporation must be sued in the county of its residence unless the case comes within one of the exceptions set out in the Constitution. Central Bank of Ga. v. Gibson, 11 Ga. 453 (2); McCall v. Central of Ga. R., 120 Ga. 602, 604 ( 48 S.E. 157); Northern Contracting Co. v. Maddux, 144 Ga. 686 (1) ( 87 S.E. 892); Lloyd Adams, Inc. v. Liberty Mut. Ins. Co., 190 Ga. 633, 637 ( 10 S.E.2d 46); Benton Rapid Express v. Johnson, 202 Ga. 597, 598 ( 43 S.E.2d 667). Numerous cases have held that the General Assembly has the power to declare the residence of corporations.
Tuggle v. Enterprise Lumber Co., 123 Ga. 480 ( 51 S.E. 433). An exception to this general rule is provided by Code ยง 22-1102, to the effect that suits against Georgia corporations may be brought in the county in which the contract is to be performed or the cause of action arose, but this exception applies "only if such corporation has an agent or place of business in such county." Lloyd Adams Inc. v. Liberty Mutual Insurance Co., 190 Ga. 633, 637 ( 10 S.E.2d 46). Since the principal office and place of business of the defendant Georgia corporation, A. K. Adams Company, is in Fulton County, Georgia, and it has never had an agent or place of business in Coffee County, the City Court of Douglas is without jurisdiction of this defendant, unless it is acquired by virtue of that court having jurisdiction of the other joint defendant. 4. While Code (Ann. Supp.) ยง 22-1509 provides that a foreign corporation doing business in Georgia and not maintaining any place of business or agent in this State may be sued in any county where the contract was to be performed or in any county wherein the agent appointed to accept service resides, and that if such agent shall not reside in the county where the contract was to be performed, service may be made by second original served upon such agent wherever he resides, or in the absence of any designation, service may be made upon the Secretary of State, and while Code ยง 56-603 provides that, whe
1. The only question in this case is whether, in an action under the Nonresident Motorists Act, the true residence of the plaintiff, which is the basis of alleged venue, is jurisdictional as to subject matter, or whether it is jurisdictional only as to the persons of the nonresident defendants. "At common law a transitory action such as an action in tort may be brought in any county which the plaintiff elects." Lloyd Adams Inc. v. Liberty Mutual Ins. Co., 190 Ga. 633, 638 ( 10 S.E.2d 46). The original Nonresident Motorists Act provided that an action could be filed by a resident in any county in the State. Any court of the State named in the act thus had jurisdiction of the subject matter of the action. The amendment to the act simply fixed the venue of the actions.
As in the instant case, liability was created solely by virtue of the statute, regardless of whether the section foreman was at fault or even had knowledge that stock had been killed. Also applicable is the ruling in Lloyd Adams v. Liberty Mutual Ins. Co., 190 Ga. 633, 641 ( 10 S.E.2d 46), where this court stated: "To allow any recovery on the basis stated by the statute would deprive the defendant of property without due process of law, would authorize a recovery without liability, and would compel payment without fault." These cases are controlling, and, in our opinion, Code Ann. ยง 105-113 contravenes the due process clauses of the State and Federal Constitutions ( Code Ann. ยง 1-815, 2-103) and is void.
" The foregoing quotations from the opinion of the U.S. Supreme Court demonstrate that courts of Georgia have no jurisdiction to decide cases in personam against residents of another State, unless the nonresident in some fashion submits to the jurisdiction of the Georgia court. One way by which a nonresident submits to the jurisdiction of the Georgia courts is provided in Ga. L. 1937, pp. 732, 733 ( Code Ann. ยง 68-801) which was held constitutional in Lloyd Adams, Inc. v. Liberty Mut. Life Ins. Co., 190 Ga. 633 ( 10 S.E.2d 46). There a nonresident, as a condition precedent to operating a motor vehicle upon the highways of this State, automatically designated an attorney in fact upon whom process could be served in cases arising out of his operation.
We agree with counsel that the policy is unreasonable, but it is the handiwork of the insurer and not this court. Our reply to such argument is similar to our replies to similar argument in Lloyd Adams, Inc. v. Liberty Mutual Ins. Co., 190 Ga. 633, 640 ( 10 S.E.2d 46): "Though admittedly the provisions of the amended section inevitably lead to a legal absurdity, this court has no choice but to take such an unambiguous law as it stands; and if it is absurd, so rule." And in Cox v. Zucker, 214 Ga. 44, 60 ( 102 S.E.2d 580), we said, "The movant asserts that our ruling is absurd because we uphold but restrict his use of this driveway to the expressed and unqualified limitation which he had written into his own deed. If there is an absurdity, it is his and not ours.
To hold this statute constitutional, would be to hold a party liable for the negligent conduct of another, even though a trespasser were operating the vehicle against the express orders of the owner, and irrespective of how careful or free from negligence the owner was, the only condition being that it be operated for the benefit of the owner. The ruling of this court in Lloyd Adams, Inc. v. Liberty Mutual Ins. Co., 190 Ga. 633, 641 ( 10 S.E.2d 46), that, "To allow any recovery on the basis stated by the statute would deprive the defendant of property without due process of law, would authorize a recovery without liability, and would compel payment without fault," is equally applicable to this statute. We do not find, nor have counsel cited, any cases upholding the constitutionality of this or a similar statute.
4 N.J. 157, 72 A.2d 190; Truscon Steel Co. v. Trumbull Cliffs Furnace Co. 120 Ohio St. 394, 166 N.E. 368; Fox v. Dunning, 124 Okla. 228, 255 P. 582; Aetna Life Ins. Co. v. Otis Elev. Co. (Tex.Civ.App.) 204 S.W. 376; Marshall-Jackson Co. v. Jeffery, 167 Wis. 63, 166 N.W. 647. Metropolitan Cas. Ins. Co. v. Sloss-Sheffield Steel Iron Co. 241 Ala. 545, 3 So.2d 306; Merino v. Pacific Coast Borax Co. 124 Cal.App. 336, 12 P.2d 458; Frank C. Sparks Co. v. Huber Baking Co. 48 Del. 9., 96 A.2d 456; New Amsterdam Cas. Co. v. Griner, 176 Ga. 69, 166 S.E. 864; Lloyd Adams Inc. v. Liberty Mutual Ins. Co. 190 Ga. 633, 10 S.E.2d 46; Pittsburgh, C. C. St. L. R. Co. v. Keith, 89 Ind. App. 233, 146 N.E. 872; Southern Surety Co. v. Chicago, R.I. P. Ry. Co. 215 Iowa 525, 245 N.W. 864; Henderson T. T. Co. v. Owensboro H. T. T. Co. 192 Ky. 322, 233 S.W. 743; Fidelity Cas. Co. v. Huse Carleton, Inc. 272 Mass. 448, 172 N.E. 590, 72 A.L.R. 1143; State ex rel. Missouri Pac. R. Co. v. Haid, 332 Mo. 616, 59 S.W.2d 690; Tandsetter v. Oscarson, 56 N.D. 392, 217 N.W. 660; United States Cas. Co. v. Hercules Powder Co. 4 N.J. 157, 72 A.2d 190; Newark Paving Co. v. Klotz, 85 N.J.L. 432, 91 A. 91; Matter of Beekman v. W. A. Brodie, Inc. 249 N.Y. 175, 163 N.E. 298; Truscon Steel Co. v. Trumbull Cliffs Furnace Co. 120 Ohio St. 394, 166 N.E. 368; Fox v. Dunning, 124 Okla. 228, 255 P. 582; American Mutual Lia. Ins. Co. v. Otis Elev. Co. 160 Tenn. 248, 23 S.W.2d 245; Southern Surety Co. v. Houston Lighting Power Co. (Tex.Civ.App.) 203 S.W. 1115, affirmed, 240 S.W. 523; Williamson v. Wellman, 156 Va. 417, 158 S.E. 777; Marshall-Jac