2020 Georgia Code
Title 40 - Motor Vehicles and Traffic
Chapter 12 - Actions Against Nonresident Motorists
§ 40-12-1. Appointment of Secretary of State as Agent for Service of Process on Nonresidents; Nonresident Minor

1. The acceptance by any nonresident of this state, whether a person, firm, or corporation, of the rights and privileges conferred by the laws now or hereafter enforced in this state permitting the operation of motor vehicles, as evidenced by the operation of a motor vehicle by any such nonresident anywhere within the territorial limits of this state, shall be deemed equivalent to the appointment by such nonresident of the Secretary of State of Georgia, or his successor in office, to be his true and lawful attorney in fact upon whom may be served all summonses or other lawful processes in any action or proceeding against any such nonresident growing out of any accident or collision in which any such nonresident 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 anywhere within the territorial limits of the State of Georgia, and said acceptance or operation shall be a signification of his agreement that any such process against him shall be of the same legal force and validity as if served upon him personally.
2. If such nonresident motorist is a minor, then the minor and his parents or guardians shall be deemed to have assented to the appointment by such nonresident minor and his parents or guardians of the Secretary of State of Georgia, or his successor in office, to be the true and lawful attorney in fact for such minor and his parents or guardians, upon whom may be served any summons or other lawful process in any action or proceeding against such nonresident minor, his parents, or guardians growing out of any accident or collision in which any such nonresident minor 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 anywhere within the territorial limits of the State of Georgia, and such acceptance or operation shall be a signification of his agreement or an agreement for him by his parents or guardians that any such process against him or them shall be of the same legal force and validity as if served upon him or them personally; and in this respect, the court wherein such action shall have been filed shall be authorized to appoint, upon motion duly made, a guardian ad litem for such minor for the purposes of defending such suit.

(Ga. L. 1937, p. 732, § 1; Ga. L. 1964, p. 299, § 1; Ga. L. 1967, p. 800, § 1.)

- For article, "The Georgia Long Arm Statute: A Significant Advance in the Concept of Personal Jurisdiction," see 4 Ga. St. B.J. 13 (1967). For article summarizing law relating to jurisdiction and venue over domestic and foreign corporations in Georgia, see 21 Mercer L. Rev. 457 (1970). For article, "Foreign Corporations in Georgia," see 10 Ga. St. B.J. 243 (1973). For comment, "Jurisdiction over Nonresidents in Georgia: Crowder v. Ginn," see 17 Ga. L. Rev. 201 (1982).

ANALYSIS

• General Consideration
• Nonresident Motorists
• Procedure

General Consideration

Nonresidents to whom chapter applicable.

- Nonresident Motorist Act, O.C.G.A. § 40-12-1 et seq., applies only to those persons who were in fact nonresidents at the time the nonresidents were exercising the rights and privileges referred to in § 40-12-1. Bailey v. Hall, 199 Ga. App. 602, 405 S.E.2d 579 (1991).

- In the context of the running of the statute of limitation, specifically O.C.G.A. § 9-3-33, and service of process issues, the Georgia's Nonresident Motorist Act, O.C.G.A. § 40-12-1 et seq., does not apply when the defendant is a resident of Georgia at the time of the tort. Andrews v. Stark, 264 Ga. App. 792, 592 S.E.2d 438 (2003).

Legislative intent was to provide a method of service upon nonresident motorists as effective and certain as that employed in requiring residents of the state to answer actions for damages arising from collisions upon the public highways of the state. Evans v. Brooks, 93 Ga. App. 352, 91 S.E.2d 799 (1956).

Basis of constitutional validity of Ga. L. 1937, p. 732, § 1 (see now O.C.G.A. § 40-12-1) is the right of the state, by the exercise of the state's police power, to prescribe regulations necessary for the public safety and order in the operation of motor vehicles. Wood v. Wm. B. Reilly & Co., 40 F. Supp. 507 (N.D. Ga. 1941).

Ga. L. 1967, p. 800, § 1 (see now O.C.G.A. § 40-12-1) gives the state in personam jurisdiction over parties who use the highways of the state and become involved in an accident or collision. Rogers v. Hagen, 445 F. Supp. 361 (N.D. Ga. 1978).

Ga. L. 1937, p. 732, § 1 (see now O.C.G.A. § 40-12-1) does not apply to all roads and highways in the state because it does not apply to roads on military reservations. Cabe v. Edwards, 107 Ga. App. 551, 130 S.E.2d 803 (1963).

- Term "motor vehicle" as used in Ga. L. 1967, p. 800, § 1 does not include a trailer without motive power not hitched to or being drawn by a motor vehicle. O'Steen v. Boone, 117 Ga. App. 174, 160 S.E.2d 229 (1968).

Cited in Hirsch v. Shepherd Lumber Corp., 67 Ga. App. 474, 21 S.E.2d 110 (1942); Beasley v. Elder, 88 Ga. App. 419, 76 S.E.2d 849 (1953); Horne v. Ewing, 89 Ga. App. 300, 79 S.E.2d 339 (1953); Allied Fin. Co. v. Prosser, 103 Ga. App. 538, 119 S.E.2d 813 (1961); Biddinger v. Fletcher, 116 Ga. App. 532, 157 S.E.2d 764 (1967); McKee v. Southern Ry., 50 F.R.D. 502 (N.D. Ga. 1970); Taylor v. Clark, 124 Ga. App. 766, 186 S.E.2d 159 (1971); Unnever v. Stephens, 142 Ga. App. 787, 236 S.E.2d 886 (1977); McClure v. Kelley, 154 Ga. App. 338, 268 S.E.2d 393 (1980); Hardin v. Wright, 172 Ga. App. 644, 323 S.E.2d 918 (1984); Foster v. Morrison, 177 Ga. App. 250, 339 S.E.2d 307 (1985).

Nonresident Motorists

1. In General

- Nonresident motorists, by using the highways of the state, not only consent to be sued in both state and federal courts of the state, but also waive the provisions of 28 U.S.C. § 1391(a) as to venue. Burke v. Greer, 114 F. Supp. 671 (M.D. Ga. 1953).

Ga. L. 1937, p. 732, § 1 (see now O.C.G.A. § 40-12-1) allows a nonresident to be sued in a county where the accident took place. Petroleum Carrier Corp. v. Carter, 233 F.2d 402 (5th Cir. 1956).

- In a Georgia resident's suit against a South Carolina resident arising from a motor vehicle accident, the court disapproved the language in any case that the Non-Resident Motorists Act (NRMA), specifically O.C.G.A. § 40-12-1, was the proper method of obtaining service on nonresident motorists to the extent that this statement stated or implied that the NRMA was the exclusive method of obtaining personal service on nonresident motorists. Farrie v. McCall, 256 Ga. App. 446, 568 S.E.2d 603 (2002).

- For the purposes of Ga. L. 1967, p. 800, § 1 (see now O.C.G.A. § 40-12-1), a person can have more than one residence and if one of these residences is in Georgia, the defendant is not subject to service even though it is also proved that the defendant has an out-of-state residence as well. Thompson v. Abbott, 226 Ga. 353, 174 S.E.2d 904 (1970), overruled on other grounds, Ogden Equip. Co. v. Talmadge Farms, Inc., 232 Ga. 614, 208 S.E.2d 459 (1974) and, overruled on other grounds as stated in, Farrie v. McCall, 256 Ga. App. 446, 568 S.E.2d 603 (2002); Carroll v. Americal Corp., 207 Ga. App. 651, 428 S.E.2d 811 (1993).

- "Nonresident" under Ga. L. 1967, p. 800, § 1 (see now O.C.G.A. § 40-12-1) cannot be a person who was a Georgia resident at the time the cause of action arose: in fact, the legislature's attempt to specifically include such persons within the purview of the statute, Ga. L. 1957, p. 649, has been held unconstitutional as violative of U.S. Const., amend. 14. Watwood v. Barber, 70 F.R.D. 1 (N.D. Ga. 1975).

- When a foreign corporation has an office and place of business in a county in this state, which is in charge of an agent upon whom service of a suit against the corporation can be legally made, such corporation is not a "nonresident" of this state within the meaning of Ga. L. 1937, p. 732, § 1 (see now O.C.G.A. § 40-12-1) so as to authorize a suit against the corporation in a county in this state where it has no office, place of business, or agent. Hirsch v. Shepherd Lumber Corp., 194 Ga. 113, 20 S.E.2d 575, answer conformed to, 67 Ga. App. 474, 21 S.E.2d 110 (1942).

- When a parent, an Alabama resident, allowed a daughter unrestricted use of a motor vehicle while retaining title in the parent's name, and the daughter was in an accident in Georgia, the Nonresident Motorist Act, O.C.G.A. § 40-12-1 et seq., permitted the exercise of personal jurisdiction over the nonresident motor vehicle owner alleged to be liable under the family purpose doctrine for damage resulting from the operation of an automobile in Georgia. McCard v. Wright, 170 Ga. App. 567, 317 S.E.2d 633 (1984).

2. Operation of Automobile Under Right or Privilege

Employment of resident driver by nonresident.

- Employment by a nonresident of a Georgia citizen for sales work in Georgia when such employment contemplates the use of the resident's duly licensed and registered automobile in the conduct of the nonresident's business is not sufficient to bring the nonresident within the terms of Ga. L. 1937, p. 732, § 1 (see now O.C.G.A. § 40-12-1) in a suit seeking recovery for injuries inflicted by such employee in the operation of the employee's automobile while engaged in the employee's sales duties. Wood v. Wm. B. Reilly & Co., 40 F. Supp. 507 (N.D. Ga. 1941).

It was not the aim of the law makers, and none is expressed, to provide that so indirect an acceptance by the nonresident of the rights and privileges conferred by the laws of this state permitting the operation of motor vehicles as follows from the employment of a duly licensed and registered resident owner results in the equivalent appointment of an agent for service. Wood v. Wm. B. Reilly & Co., 40 F. Supp. 507 (N.D. Ga. 1941).

Employment by a nonresident of a duly licensed and registered owner of an automobile is not such an acceptance by the nonresident of the rights and privileges conferred by the laws of Georgia permitting the operation of motor vehicles within the state as will be deemed equivalent to the appointment by the nonresident of the Secretary of State as agent to receive service of process in an action against the nonresident for injuries caused by a resident employee's or agent's negligent operation of the automobile within the state. Myers v. Katz, 67 Ga. App. 640, 21 S.E.2d 482 (1942).

Operation in this state of a motor vehicle registered under the laws of this state by a resident of this state who owns the motor vehicle, although the resident may be, in the operation of the motor vehicle, the servant and agent of a nonresident, is not the operation of the automobile under any right or privilege conferred by the laws of this state on a nonresident. Myers v. Katz, 67 Ga. App. 640, 21 S.E.2d 482 (1942).

- Service of process upon a nonresident whose automobile, operated by a third person, is involved in a collision in Georgia is invalid when it cannot be said that the automobile was operated for or under the control of the nonresident. Hanft v. Allbright, 132 Ga. App. 263, 208 S.E.2d 20 (1974).

O.C.G.A. Ch. 12, T. 40 must be strictly construed and fully complied with before a trial court can obtain jurisdiction over the person of a nonresident defendant; in the absence of service in conformity with the act, or the waiver of the act's requirements, any judgment rendered by the court is void. Medlin v. Church, 157 Ga. App. 876, 278 S.E.2d 747 (1981).

- Filing of a certificate of the Secretary of State that the registered letters to the defendants, addressed to the defendant's "care general delivery," were returned to the defendant's marked "unclaimed," is not such a compliance with the law as would subject the defendants to the jurisdiction of a Georgia court, in the absence of evidence that the defendants knew of the presence of such letters in the post office of the city of their residence and refused to call for, receive, and sign for them. Stone v. Sinkfield, 70 Ga. App. 787, 29 S.E.2d 310 (1944).

- Process is not void because it names defendants and not the Secretary of State as agent or attorney in fact for the defendants as the person to whom the process is directed and against whom the suit is filed. Mull v. Taylor, 68 Ga. App. 663, 23 S.E.2d 595 (1942).

Defendant may not refuse to accept service of notice sent by the Secretary of State and thus exculpate oneself. Proof that there was proper service on the Secretary of State, proper notice sent by the Secretary by registered mail to the defendant at the defendant's address, and refusal by the latter, amounts to proper service so as to give the court jurisdiction. Liberty Mut. Ins. Co. v. Coburn, 129 Ga. App. 520, 200 S.E.2d 146 (1973).

- When the notice is received by the defendant's employee or agent, and the latter fails to inform the defendant, the notice is nevertheless sufficient. Liberty Mut. Ins. Co. v. Coburn, 129 Ga. App. 520, 200 S.E.2d 146 (1973).

- Nonresident does not by the mere appointment of an agent to accept service for the nonresident acquire a fixed residence in the county of such agent. The provision for the appointment of an attorney in fact relates to service, and not to venue. Lloyd Adams, Inc. v. Liberty Mut. Ins. Co., 190 Ga. 633, 10 S.E.2d 46 (1940).

- Statute provides for substituted service only in actions against the user of the highways and does not extend to actions against the user's personal representative. Death revokes the agency of the state official so that substituted service cannot thus be made on the personal representative of the deceased nonresident. Hendrix v. Jenkins, 120 F. Supp. 879 (M.D. Ga. 1954).

- Minor is not sui juris; accordingly, in order to perfect service upon a nonresident minor defendant under O.C.G.A. Ch. 12, T. 40, both the nonresident minor defendant and the minor's guardian must be served. Medlin v. Church, 157 Ga. App. 876, 278 S.E.2d 747 (1981).

- When statutory service of process is made on the defendant through service on the Secretary of State, the time for removal does not run as of the date of the statutory service on the Secretary of State, but as of the time when the defendant actually receives a copy of the initial pleading. Barber v. Willis, 246 F. Supp. 814 (N.D. Ga. 1965).

- When a petition brought under the Georgia Nonresident Motorist Act sufficiently alleged the trial court's jurisdiction of the subject matter of the suit, the defendant waived any jurisdictional defects as to the defendant's person by appearing through the defendant's attorneys and pleading to the merits. Garver v. Smith, 90 Ga. App. 892, 84 S.E.2d 693 (1954).

RESEARCH REFERENCES

Am. Jur. 2d.

- 7A Am. Jur. 2d, Automobiles and Highway Traffic, § 142 et seq.

- 61 C.J.S., Motor Vehicles, § 1124 et seq.

- Constitutionality of statute providing for substituted or constructive service upon nonresident in action for tort in connection with operation of automobile, 35 A.L.R. 951; 57 A.L.R. 1239; 99 A.L.R. 130.

Construction, application, and effect of statutes providing for constructive or substituted service of process upon nonresident motorists, 82 A.L.R. 768; 96 A.L.R. 594; 125 A.L.R. 457; 138 A.L.R. 1464; 155 A.L.R. 333; 53 A.L.R.2d 1164.

Who is subject to constructive or substituted service of process under statutes providing for such service on nonresident motorists, 155 A.L.R. 333; 53 A.L.R.2d 1164.

Venue of action against nonresident motorist served constructively under statute, 38 A.L.R.2d 1198.

What is "motor vehicle" or the like within statute providing for constructive or substituted service of process on nonresident motorists, 48 A.L.R.2d 1283.

Place or type of motor vehicle accident as affecting applicability of statute providing for constructive or substituted service upon nonresident motorist, 73 A.L.R.2d 1351.

Airplane or other aircraft as "motor vehicle" or the like within statute providing for constructive or substituted service of process on nonresident motorist, 36 A.L.R.3d 1387.