GA Code § 40-1-117 (2021)
2021 Georgia Code|Title 40 - Motor Vehicles and Traffic|Chapter 1 - Identification and Regulation|Article 3 - Motor Carriers|Part 2 - Certification of Motor Carriers|§ 40-1-117. Registered Agents of Nonresident Motor Carrier; Service; Venue for Cause Action; Vehicles Excluded From Motor Carrier or Contract Carrier; Covered Farm Vehicles

  Each nonresident motor carrier shall, before any certificate or permit is issued to it under this part or at the time of registering as required by Code Section 40-2-140, designate and maintain in this state an agent or agents upon whom may be served all summonses or other lawful processes in any action or proceeding against such motor carrier growing out of its carrier operations; and service of process upon or acceptance or acknowledgment of such service by any such agent shall have the same legal force and validity as if duly served upon such nonresident carrier personally. Such designation shall be in writing, shall give the name and address of such agent or agents, and shall be filed in the office of the state revenue commissioner. Upon failure of any nonresident motor carrier to file such designation with the state revenue commissioner or to maintain such an agent in this state at the address given, such nonresident carrier shall be conclusively deemed to have designated the Secretary of State and his or her successors in office as such agent; and service of process upon or acceptance or acknowledgment of such service by the Secretary of State shall have the same legal force and validity as if duly served upon such nonresident carrier personally, provided that notice of such service and a copy of the process are immediately sent by registered or certified mail or statutory overnight delivery, return receipt requested, by the Secretary of State or his or her successor in office to such nonresident carrier, if its address be known. Service of such process upon the Secretary of State shall be made by delivering to his or her office two copies of such process with a fee of $10.00.   Except in those cases where the Constitution requires otherwise, any action against any resident or nonresident motor carrier for damages by reason of any breach of duty, whether contractual or otherwise, or for any violation of this article or of any order, decision, rule, regulation, direction, demand, or other requirement established by the state revenue commissioner may be brought in the county where the cause of action or some part thereof arose; and if the motor carrier or its agent shall not be found for service in the county where the action is instituted, a second original may be issued and service be made in any other county where the service can be made upon the motor carrier or its agent. The venue prescribed by this Code section shall be cumulative of any other venue provided by law.   Except in those cases where the Constitution requires otherwise, for the purposes of venue only, any truck engaged exclusively in the transportation of agricultural or dairy products, or both, between farm, market, gin, warehouse, or mill shall not be classified as a motor common or contract carrier.     As used in this subsection, the term "covered farm vehicle" means a motor vehicle with a gross vehicle weight rating or gross vehicle weight, whichever is greater, of 26,000 pounds or less; or a motor vehicle with a gross vehicle weight rating or gross vehicle weight that is greater than 26,000 pounds and which is traveling within the registered state or within 150 miles of the farm or ranch for which it is used. To qualify as a covered farm vehicle either type of motor vehicle listed in this paragraph must also be:   Registered in this or another state;   Operated by a farmer, rancher, or tenant under a crop share farm lease agreement or a family member or employee of a farmer, rancher, or crop share tenant;   Used primarily for the transportation of farm supplies, crops, livestock, or farm machinery; and   Not used in a for hire motor carrier operation; provided, however, that this requirement shall not apply to a motor vehicle operated under a tenant crop share agreement used primarily for transporting crops of the landlord.     A covered farm vehicle is not a motor carrier; provided, however, that any motor vehicle required by federal law to be designated as either a covered farm vehicle or a motor carrier shall be so designated as required by federal law.   A covered farm vehicle must be equipped with either a license plate or possess such other special designation issued by the state where such vehicle is registered and the license plate or special designation must indicate that such vehicle is a covered farm vehicle.       (Code 1981, §40-1-117, enacted by Ga. L. 2012, p. 580, § 1/HB 865; Ga. L. 2013, p. 838, §§ 11, 12/HB 323.)   Editor's notes.   - Ga. L. 2013, p. 838, § 20/HB 323, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2013, and shall apply to violations committed on or after such date; provided, however, that Section 12 of this Act shall not be effective until January 1, 2014."   Law reviews.   - For annual survey on business associations, see 70 Mercer L. Rev. 19 (2018). For annual survey on trial practice and procedure, see 70 Mercer L. Rev. 253 (2018). For annual survey on commercial transportation: a two-year survey, see 71 Mercer L. Rev. 39 (2019).   JUDICIAL DECISIONS   Editor's notes.   - In light of the similarity of the statutory provisions, decisions under former Code 1933, § 68-618 and former O.C.G.A. §§ 46-7-17 and46-7-62 are included in the annotations for this Code section.   Strict construction.    - Former Code 1933, § 68-618, 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) (decided under former Code 1933, § 68-618).    The provisions of former Code 1933, § 68-618 as to service on nonresident motor carriers were in derogation of common law and were 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) (decided under former Code 1933, § 68-618).    Former Code 1933, § 68-618, 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 1933, § 68-618).   Code section was not mandatory.    - Former Code 1933, § 68-618 was not to be construed as mandatory as respected 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) (decided under former Code 1933, § 68-618).   Applicability of former subsection (a).    - Provisions of subsection (a) of former Code 1933, § 68-618 were 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) (decided under former Code 1933, § 68-618); Mathews v. Rail Express, Inc., 836 F. Supp. 873 (N.D. Ga. 1993);(decided under former O.C.G.A. § 46-7-17).   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) (decided under former O.C.G.A. § 46-7-17).   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 former O.C.G.A. §§ 46-7-17 and46-7-62(a) applied, 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) (decided under former O.C.G.A. § 46-7-17).   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, the words referred 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 referred to carrier operations upon the highways of this state. Record Truck Line v. Harrison, 220 Ga. 289, 138 S.E.2d 578 (1964) (decided under former Code 1933, § 68-618).   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) (decided under former O.C.G.A. § 46-7-62); Mathews v. Rail Express, Inc., 836 F. Supp. 873 (N.D. Ga. 1993);(decided under former O.C.G.A. § 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 O.C.G.A. § 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 O.C.G.A. § 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 O.C.G.A. § 46-7-62).   Venue provision is permissive and cumulative.    - Former Code 1933, § 68-618 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) (decided under former Code 1933, § 68-618).   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 former O.C.G.A. § 46-7-17 under the exemption provided for vehicles operated by any state or subdivision thereof in former O.C.G.A. § 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) (decided under former O.C.G.A. § 46-7-17).   Not all venue options applicable to nonresident carrier.    - Last sentence of subsection (b) of former O.C.G.A. § 46-7-17 did not mean that any and all venue provisions relative to an action against an insurer were applicable, at the election of the plaintiff, in a tort action against a motor carrier. What the sentence did mean was that the statute's venue provisions were not exclusive with regard to a suit against a motor carrier and that venue can be predicated upon any statute which was otherwise applicable. Thomas v. Bobby Stevens Hauling Contractors, 165 Ga. App. 710, 302 S.E.2d 585 (1983) (decided under former O.C.G.A. § 46-7-17).   Venue in action arising out of transaction in this state against nonresident carrier.    - It was 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 did not have the effect of restricting or limiting the venue in that respect; this provision contemplated an action arising out of a transaction in this state, but even then it did 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) (decided under former Code 1933, § 68-618).   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 the company's 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) (decided under former O.C.G.A. § 46-7-17).   Residence of foreign carrier where cause of action originated.    - 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, 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 the county 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) (decided under former Code 1933, § 68-618).   Alternative venue for actions against carriers.    - Under former Code 1933, § 68-618, a motor carrier "may be" sued in the county where the cause of action originated or may be sued in the county where the carrier maintained the carrier's 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.    - Motor common carrier may be a nonresident corporation, yet since the carrier is engaged in doing business in this state, and has agents in the state for that purpose, the carrier 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 the county 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 tort feasor 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) (decided under former Code 1933, § 68-618).    A joint cause of action against a motor common carrier, which is a domestic corporation, against the carrier's 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 were residents of such county or have agents therein. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948) (decided under former Code 1933, § 68-618).    In a wrongful death action based on a motor vehicle accident, the state court of one county erred in denying the plaintiff's motion to remand the case to another county because the general provision for venue for a defendant corporation provided that a plaintiff could file certain causes of action against a corporation in the county where a plaintiff's cause of action originated; if there was a separate basis for venue, the plain language of the general provision precluded a corporation from removing the case to the county where its principal place of business was located; and the Georgia Motor Carrier Act, O.C.G.A. § 40-1-50, et seq., supplied an independent basis for venue against a motor carrier in the county where the cause of action or some part thereof arose. Blakemore v. Dirt Movers, Inc., 344 Ga. App. 238, 809 S.E.2d 827 (2018), cert. denied, No. S18C0731, 2018 Ga. LEXIS 469 (Ga. 2018).   Lack of agent in county where action originated does not preclude venue therein.    - Action against a motor common carrier, except when 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 the carrier 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) (decided under former Code 1933, § 68-618).   Same venue principles applicable to carriers as to railroad companies.    - Under former Code 1933, § 94-1101, a joint and several action can be brought against a railroad company and another tort feasor, and as against the railroad company and the company's 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 the carrier's motor vehicle for a tort. Atlanta-Asheville Motor Express v. Dooley, 78 Ga. App. 265, 50 S.E.2d 822 (1948) (decided under former Code 1933, § 68-618).   Venue as to nonresidents.    - Venue of action against nonresidents may be maintained under Ga. L. 1959, p. 120, § 1 (see now O.C.G.A. § 40-12-3) as well as former Code 1933, § 68-618. Parker v. Ryder Truck Lines, 150 Ga. App. 163, 257 S.E.2d 18 (1979) (decided under former Code 1933, § 68-618).   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 tortfeasor may be joined in an action against it in the county where the injury occurred although the joint tortfeasor was a nonresident of such county, and although the defendant corporation had 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 1933, § 68-514).   No misjoinder when 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) (decided under former Code 1933, § 68-514).    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, §§ 1127 et seq., 1158, 1159.   ALR.    - State regulation of carriers by motor vehicle as affected by interstate commerce clause, 47 A.L.R. 230; 49 A.L.R. 1203; 62 A.L.R. 52; 85 A.L.R. 1136; 109 A.L.R. 1245; 135 A.L.R. 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 A.L.R. 777.