Fidelity & Casualty Co. v. Everett

Callaway, Judge. R. IT. Everett brought suit against the Fidelity and Casualty Co-., a corporation under the laws of the State of New York, and against ~W. L. Cochran, a non-resident of the State of Georgia. The sheriff of Glynn county, where the suit was brought, on April 21st, 189T, served a copy of the petition and process upon one R. T. Brennan, and made the following entry of service: “I have this day served the Fidelity & Casualty Co., by delivering a copy of the 788 within, petition and process to its agent, R. T. Brennan.” At the appearance term the Fidelity & Casualty Co. traversed this return, and upon the trial of the traverse the following facts were developed by the testimony: Brennan was the inspector for the Fidelity & Casualty Co., with headquarters in New York City, and his home at White Plains in New York.' He traveled through the Southern States, and his duties were to audit losses and make collections for the company, but he took no risks and issued no policies. The company has a general agent located in Atlanta, Ga. On the day that he was served by the sheriff he came to Brunswick for the sole purpose of testifying as a witness for the State in a criminal case against R. H. Everett. He arrived in Brunswick in the morning, attended the trial of the criminal case that day, was served by the sheriff in the afternoon, and left that night on the earliest train that he could leave on after the trial of the criminal case. He had no other business in Brunswick nor in Georgia on that day, except to attend the trial of said criminal case as a witness for the State. The court directed a verdict against the traverse, and the Fidelity & Casualty Co. excepted. In the case of Thornton v. Machine Co., 83 Ga. 288, Justice Simmons, delivering the opinion of this court, says, “The law seems to be, that a suitor or a witness in attendance upon the trial of any case in court is privileged from arrest under any civil process, and is exempted from the service of- any writ or summons upon him or them, while in attendance upon such court, or in going to or returning therefrom.” Wheh the witness is a non-resident and conies into the State for the sole purpose of attending one of its courts as a witness for the State in a criminal case, it would be poor policy, .and bad faith, on the part of the State to allow its courts to take advantage of his commendable conduct to embroil him in litigation. However strong may be the right of the resident witness, who attends the court in 789 obedience to its mandate, to protection from arrest or service of civil process, it cannot be stronger than that of the non-resident, who cannot be reached by the mandate of the State court, and whose submission to our jurisdiction is a voluntary performance of duty. Witnesses should not be frightened from attendance upon the courts where their testimony may be needed, whether they be voluntary or subpoenaed witnesses; and when they come from other States to testify in our courts, their presence cannot be taken advantage of to give our courts jurisdiction to sue them. Such a policy would soon put an end to the presence of non-resident witnesses in our courts. The evidence showing that Brennan, the agent of the non-resident corporation, was himself a non-resident, and, oh the occasion when he was served with a copy of the petition and process against said corporation, he had gone to Brunswick and was present there for the sole and exclusive purpose of testifying as a witness in the case of the -State vs. Everett, the service upon him shorild have been set aside at the instance of the defendant corporation, and it was error in the court to direct a verdict against the traverse. Judgrnmt reversed.