Dryer v. Director General of Railroads

• Decision Date: 27 February 1923
• Docket Number: 5007.
• Parties: DRYER v. DIRECTOR GENERAL OF RAILROADS.
• Court: Montana Supreme Court

213 P. 210

66 Mont. 298

DRYER v. DIRECTOR GENERAL OF RAILROADS.

No. 5007.

Supreme Court of Montana

February 27, 1923

Appeal from District Court, Powell County; Geo. B. Winston, Judge.

Action by George Dryer against the Director General of Railroads. Judgment for defendant, and plaintiff appeals. Affirmed.

Hall & Pope, of Missoula, for appellant.

Gunn Rasch & Hall, of Helena, for respondent.

CALLAWAY C.J.

The only error assigned is that the district court erred in transferring this cause from Missoula county to Powell county for trial.

The action is to recover for personal injuries sustained by plaintiff because of an accident which occured in Powell county while the plaintiff was in the employ of the defendant, Director General of Railroads. It is alleged that the accident occurred through the negligence of defendant's employees.

At the time of the accident the plaintiff was, and had been for 30 years, a resident of Missoula county. The complaint was filed in Missoula county, and the defendant was served with summons there. Upon defendant's motion the cause was transferred to Powell county. The motion was based upon the fact that the accident occurred in Powell county and plaintiff's cause of action, if any, arose there. Trial resulted in favor of defendant. Plaintiff appeals from the judgment.

It is conceded by plaintiff that the ruling of the trial court is sustained, in terms at least, by the decision of this court in State ex rel. Interstate Lumber Co. v. District Court, 54 Mont. 602, 172 P. 1030. In that case, which arose upon contract, the court had under consideration the following portion of section 6504, Revised Codes of 1907, now section 9096, Revised Codes of 1921:

"Actions upon contracts may be tried in the county in which the contract was to be performed, and actions for torts in the county where the tort was committed; subject, however, to the power of the court to change the place of trial as provided in this Code."

After an exhaustive analysis of this provision in comparison with the context in section 6504, and as that section relates to companion sections, the court held that the word "may" should be given the force of "must." Counsel say this holding was obiter because unnecessary to the conclusion and decision of the cause then before the court. They say, further:

"We believe that all the cases along this line which this court has decided were correctly decided. More than that, we believe that our position regarding the proper meaning of section 9096 of the Revised Codes will reconcile

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