Southern Bell Telephone & Telegraph Co. v. Jackson

Court of Appeals of Georgia

Southern Bell Telephone & Telegraph Co. v. Jackson

117 S.E.2d 550, 102 Ga. App. 699, 1960 Ga. App. LEXIS 726

CourtCourt of Appeals of Georgia

DecidedOctober 28, 1960

Docket38510

StatusPublished

Cited by4 cases

This text of 117 S.E.2d 550 (Southern Bell Telephone & Telegraph Co. v. Jackson) 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

Southern Bell Telephone & Telegraph Co. v. Jackson, 117 S.E.2d 550, 102 Ga. App. 699, 1960 Ga. App. LEXIS 726 (Ga. Ct. App. 1960).

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Opinions

Nici-iols, Judge.

Under the decision of the Supreme Court in Jones v. Bibb Brick Co., 120 Ga. 321 (48 S. E. 25), if the service in the present case was valid and the return defective the return could be corrected by amendment; however, if the service was void then no amendment to the return could validate it. Accordingly, the judgments overruling the demurrer to the amendment to the return of service and overruling the motion to strike the amendment, if error, were harmless for the question presented still remained: "Was the service on the purported agent valid?” If not, the traverse should have heen sustained regardless of the amendment. Therefore, no harmful error is shown by the court’s rulings on the demurrer and the motion to strike.

Code § 22-1101 provides that service on corporations may be perfected by (1) leaving a copy of the process or other writ at the place of transacting the usual and ordinary business of the corporation if such place of business is within the jurisdiction of the court, or (2) by personal service on any officer or agent of the corporation. Here we are only concerned with the second method and the question presented is whether the person served was “an officer or agent” of the corporation, and no question is presented as to. whether the court had jurisdiction of the defendant who was “doing business” in the county where the action was brought, and it was this business out of which the action arose (the plaintiff having, according to the allegations of the petition, been a resident of the county and having sustained a severe electric shock from equipment owned by the defendant and installed in the plaintiff’s home).

The Supreme Court in Louisville & Nashville R. Co. v. Meredith, 194 Ga. 106 (21 S. E. 2d 101), held that a person employed as a “soliciting agent” was a proper “agent” for service where the defendant corporation was otherwise doing business within the jurisdiction of the court. Where the solicitation of [701]*701business is the sole operation carried on by the defendant within the jurisdiction of the court the rule is otherwise. See Vicksburg, Shreveport &c. Ry. v. DeBow, 148 Ga. 738 (98 S. E. 381).

In the persent case, although conflicting, there was evidence that the person, H. R. Slate, on whom process was served had the title of “Installer-Repairman” and was employed in such capacity by the defendant. There was also evidence that it was his, along with other employees’, duty “to put in new phones any time he can. Every employee is supposed to sell the service of the company. And following putting a phone in a person’s house he would tell them how much it would cost. And he would install it and the company would bill the customers in accordance with the agreement that he had made with the customers, a service order would be issued and the customer would be billed.” This same witness, Donnell Murray, the defendant’s general plant supervisor for Georgia, on direct examination also testified in conflict with the above that it would not be all right with the company for Mr. Slate to install an extension phone without prior permission, that such was not a part of his duties, that the company would make him take it out, and that it was not a part of his duties to sell.

As shown above, while this testimony was conflicting, still the evidence authorized the finding made by the trial judge that Mr. Slate was an agent authorized by Code § 22-1101 to receive service of process. The trial court did not err in overruling the traverse.

Judgment affirmed.

Felton, C. J., Townsend, P. J., and Car-lisle, J., concur. Bell, J., dissents. Frankum, J., disqualified.

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Nici-iols, Judge.

Under the decision of the Supreme Court in Jones v. Bibb Brick Co., 120 Ga. 321 (48 S. E. 25), if the service in the present case was valid and the return defective the return could be corrected by amendment; however, if the service was void then no amendment to the return could validate it. Accordingly, the judgments overruling the demurrer to the amendment to the return of service and overruling the motion to strike the amendment, if error, were harmless for the question presented still remained: "Was the service on the purported agent valid?” If not, the traverse should have heen sustained regardless of the amendment. Therefore, no harmful error is shown by the court’s rulings on the demurrer and the motion to strike.

Code § 22-1101 provides that service on corporations may be perfected by (1) leaving a copy of the process or other writ at the place of transacting the usual and ordinary business of the corporation if such place of business is within the jurisdiction of the court, or (2) by personal service on any officer or agent of the corporation. Here we are only concerned with the second method and the question presented is whether the person served was “an officer or agent” of the corporation, and no question is presented as to. whether the court had jurisdiction of the defendant who was “doing business” in the county where the action was brought, and it was this business out of which the action arose (the plaintiff having, according to the allegations of the petition, been a resident of the county and having sustained a severe electric shock from equipment owned by the defendant and installed in the plaintiff’s home).

The Supreme Court in Louisville & Nashville R. Co. v. Meredith, 194 Ga. 106 (21 S. E. 2d 101), held that a person employed as a “soliciting agent” was a proper “agent” for service where the defendant corporation was otherwise doing business within the jurisdiction of the court. Where the solicitation of [701]*701business is the sole operation carried on by the defendant within the jurisdiction of the court the rule is otherwise. See Vicksburg, Shreveport &c. Ry. v. DeBow, 148 Ga. 738 (98 S. E. 381).

In the persent case, although conflicting, there was evidence that the person, H. R. Slate, on whom process was served had the title of “Installer-Repairman” and was employed in such capacity by the defendant. There was also evidence that it was his, along with other employees’, duty “to put in new phones any time he can. Every employee is supposed to sell the service of the company. And following putting a phone in a person’s house he would tell them how much it would cost. And he would install it and the company would bill the customers in accordance with the agreement that he had made with the customers, a service order would be issued and the customer would be billed.” This same witness, Donnell Murray, the defendant’s general plant supervisor for Georgia, on direct examination also testified in conflict with the above that it would not be all right with the company for Mr. Slate to install an extension phone without prior permission, that such was not a part of his duties, that the company would make him take it out, and that it was not a part of his duties to sell.

As shown above, while this testimony was conflicting, still the evidence authorized the finding made by the trial judge that Mr. Slate was an agent authorized by Code § 22-1101 to receive service of process. The trial court did not err in overruling the traverse.

Judgment affirmed.

Felton, C. J., Townsend, P. J., and Car-lisle, J., concur. Bell, J., dissents. Frankum, J., disqualified.

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117 S.E.2d 550, 102 Ga. App. 699, 1960 Ga. App. LEXIS 726, Counsel Stack Legal Research, https://law.counselstack.com/opinion/southern-bell-telephone-telegraph-co-v-jackson-gactapp-1960.

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