Johnson v. Woodard

429 S.E.2d 701, 208 Ga. App. 41, 93 Fulton County D. Rep. 1514, 1993 Ga. App. LEXIS 426
CourtCourt of Appeals of Georgia
DecidedMarch 19, 1993
DocketA92A1693
StatusPublished
Cited by9 cases

This text of 429 S.E.2d 701 (Johnson v. Woodard) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Johnson v. Woodard, 429 S.E.2d 701, 208 Ga. App. 41, 93 Fulton County D. Rep. 1514, 1993 Ga. App. LEXIS 426 (Ga. Ct. App. 1993).

Opinions

Birdsong, Presiding Judge.

Rick Woodard is a Georgia resident employed by Owens Truck Leasing, a Georgia corporation doing business as a common carrier. Within the scope of his employment, he was driving a tractor-trailer owned by Owens when he struck a vehicle driven by Laura Johnson, resulting in her death. The collision took place on 1-85 in South Carolina while Laura Johnson was returning home to Georgia from college in South Carolina. Woodard had begun his trip in Georgia and was returning to Georgia after picking up cargo in South Carolina.

Laura Johnson’s husband, Michael Johnson, instituted this wrongful death action against Owens and Woodard in the Fulton Superior Court. Alleging that at the time of the accident Woodard was under the influence of the opiate codeine which impaired his driving, Johnson is seeking actual damages for negligence, carelessness, and recklessness, as well as punitive damages for recklessness, wilfulness or malice.

Johnson named Owens’ indemnity insurer, The Integral Com[42]*42pany, as a party defendant on grounds that Owens is a motor common carrier which was issued a certificate of public convenience and necessity by the Georgia Public Service Commission (PSC), and it is therefore permissible to join Owens’ insurance carrier in this tort action under Georgia’s direct-action statute, OCGA § 46-7-12 (e). Johnson also asserted that joinder is proper in this state because South Carolina law also required Owens to have a certificate of public convenience and necessity, and South Carolina Code § 58-23-910 is a direct-action statute comparable to Georgia’s.

The trial court granted Integral’s motion to dismiss, for failure to state a claim against it, based on National Union Fire Ins. Co. v. Marty, 197 Ga. App. 642 (399 SE2d 260). Woodard and Owens also filed a motion to dismiss on various grounds, including improper venue, OCGA § 9-11-12 (b) (3). The court considered matters outside the pleadings, taking into account affidavits and depositions, and denied the motion in effect but transferred the case to another county upon finding that uncontested facts showed that Woodard was a resident of Jones and not Fulton County and Owens was a resident of Baldwin and not Fulton County.

The trial court’s certificate of immediate review was expressly limited to the dismissal of Integral. Transfer of the case to Baldwin County was completed. Upon our grant of interlocutory appellate review, enumerations relating to other alleged errors may be raised and must also be decided. OCGA § 5-6-34 (d); see Griffith v. Ga. Bd. of Dentistry, 175 Ga. App. 533 (333 SE2d 647). Held:

1. Johnson complains of the trial court’s transfer of the case for improper venue, on Woodard’s and Owens’ motion to dismiss, based on the factual finding that Woodard was not a resident of Fulton County when the suit was filed and served.

The court was the trier of fact on the issues, and its determination “will be reversed only where the evidence demands a contrary finding.” Barrow v. Gen. Motors Corp., 172 Ga. App. 287, 288 (322 SE2d 900).

By affidavits, Woodard swore that at the time of the accident, he lived with his parents in Jones County. At that time, he considered that address to be his home and his residence. He subsequently obtained a job working in the motion picture industry. In performing that job, he was required to travel to locations outside of Jones County, and he would obtain lodging in those areas for reasons of economics and because of his inability to travel on a daily basis to and from Jones County to remote locales. Prior to plaintiff’s filing of the present complaint, Woodard’s employment required him to travel to Atlanta for the filming of a movie and to remain there for several months. During that time, he shared a furnished apartment in Fulton County with other persons. He did not list the telephone or utilities [43]*43in his name. He continued to receive mail in Jones County (although he received mail at his Fulton County address also). He never registered to vote in Fulton County or took any action to change his permanent address (although he established a checking account at a local bank and obtained checks imprinted with his Fulton County address). He departed Fulton County when his employment there ended.

Under Ga. Const. 1983, Art. VI, Sec. II, Par. IV, all civil cases other than those specifically excepted shall be tried in the county where the defendant resides. See Williams v. Fuller, 244 Ga. 846, 850 (2) (262 SE2d 135).

“ ‘ “Residence” and “domicile” are not synonymous and convertible terms. (Cits.) . . . [0]ne’s legal residence for the purpose of being sued in this state is necessarily the same county as his domicile where domicile is determined by that part of [OCGA § 19-2-1] which provides, “The domicile of every person of full age, and laboring under no disability, is the place where the family of such person shall permanently reside, if in this state.” ’ [Cit.]” Pugh v. Jones, 131 Ga. App. 600, 603 (1) (206 SE2d 650); compare OCGA § 19-2-2 (b). “ ‘There must be either the tacit or the explicit intention to change one’s domicile before there is a change of legal residence.’ [Cits.]” Sorrells v. Sorrells, 247 Ga. 9, 11-12 (3) (274 SE2d 314).

Evidence showed that Woodard’s domicile was Jones County, and there is no evidence of any intent on his part to change his domicile from there to Fulton County. Consequently, the court did not err in finding that Jones County remained his legal residence for venue purposes.

2. The refusal of the court to make written findings of fact and conclusions of law was not error, as this is not required on motions such as were before it. See OCGA § 9-11-52.

3. The trial court held in effect that OCGA § 46-7-12 (e), which permits joinder of the insurer in the same action against the motor carrier, does not apply to a collision involving a Georgia resident and a vehicle which is subject to Georgia PSC regulation under Title 46, where the collision occurs in another state.

This Georgia motor carrier is “subject to an action [on the bond or policy of indemnity insurance]” in Georgia by “any person”; therefore, joinder of the insurer (OCGA § 46-7-12 (b) and (e)) is proper. Joinder is not prohibited merely because the collision occurred on a highway in South Carolina.

National Union Fire Ins. Co. v. Marty, 197 Ga. App. at 643 notes that several statutes in Title 46 (as to regulation of common carriers) refer to “ ‘commerce carried on in this state’ ” and “on any public highway of this state.” (Emphasis omitted.) Specifically, National Union Fire

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Rouse v. Polott
617 S.E.2d 185 (Court of Appeals of Georgia, 2005)
Dehart v. Liberty Mutual Ins. Co.
169 F.3d 727 (Eleventh Circuit, 1999)
DeHart v. Liberty Mutual Insurance
509 S.E.2d 913 (Supreme Court of Georgia, 1998)
Cooper v. Edwards
508 S.E.2d 708 (Court of Appeals of Georgia, 1998)
Williams v. Southern Drayage, Inc.
446 S.E.2d 758 (Court of Appeals of Georgia, 1994)
Johnson v. Woodard
429 S.E.2d 701 (Court of Appeals of Georgia, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
429 S.E.2d 701, 208 Ga. App. 41, 93 Fulton County D. Rep. 1514, 1993 Ga. App. LEXIS 426, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-v-woodard-gactapp-1993.