Harper, &C., v. Newport News and Mississippi Valley Company

• Decision Date: 09 September 1890
• Court: Kentucky Court of Appeals
• Parties: Harper, &c., v. Newport News and Mississippi Valley Company.

90 Ky. 359

Harper, &c., v. Newport News and Mississippi Valley Company.

Court of Appeals of Kentucky.

September 9, 1890.

APPEAL FROM M'CRACKEN COURT OF COMMON PLEAS.

GILBERT & REED FOR APPELLANT.

QUIGLEY & QUIGLEY FOR APPELLEES.

JUDGE LEWIS DELIVERED THE OPINION OF THE COURT.

Appellant instituted this action in the McCracken Common Pleas Court against appellees to recover damages for personal injury done in Graves county by a locomotive engine running over him through negligence of those in charge of it.

It is stated in the petition that the railroad, on the track of which appellant was at time of the injury, was owned by the Chesapeake and Ohio and Southwestern Railroad Company, but was then controlled and operated exclusively by the Newport News and Mississippi Valley Railroad Company, a carrier of freight and passengers, and those in charge of said locomotive were employes of that company.

The summons was issued against both defendants, and returned by the sheriff of McCracken county executed on the Newport News and Mississippi Valley Company by delivering to J. W. Briggs a true copy of the summons, he, as stated, being the chief officer of the company in that county; and executed on the Chesapeake, Ohio and Southwestern Company by delivering to John Echols a true copy, he, as stated, being chief officer of that company.

The Chesapeake, Ohio and Southwestern Railroad Company filed a general demurrer to the petition which was sustained, and, we think, properly done, because, though it is alleged to be the owner, the Newport News and Mississippi Valley Company, having the exclusive control and management of the road, and the locomotive by which the injury was done being at the time operated by its employes, is alone answerable in damages to the plaintiff.

The latter company filed a plea to the jurisdiction of the court for the following causes: 1. That the plaintiff resides, and the alleged injury was done, in Graves county; 2. That the chief office, residence and place of business of defendant is in Jefferson county; 3. That John Echols, being its vice-president and chief officer and agent in Kentucky, is in that county.

The general demurrer to that plea having been overruled, and the plaintiff declining to further plead, judgment was rendered dismissing the action for want of jurisdiction, and therefrom this appeal is prosecuted.

The precise question of jurisdiction now before us was made and decided in the case of Sherrill v. Chesapeake, &c., Railway Co., 89 Ky., 302. It was there held that the jurisdiction in cases like this is regulated and determined by section 73, Civil Code, as follows: "Excepting the actions mentioned in 75, an action against a common carrier, whether a corporation or not, upon a contract to carry property, must be brought in the county in which the defendant, or either of...