Henry Fisher Packing Co. v. Mattox

• Decision Date: 24 January 1936
• Parties: HENRY FISHER PACKING CO. v. MATTOX et ux.
• Court: Kentucky Court of Appeals

90 S.W.2d 70

262 Ky. 318

HENRY FISHER PACKING CO. v. MATTOX et ux.

Court of Appeals of Kentucky

January 24, 1936

Appeal from Circuit Court, Jefferson County, Common Pleas Branch First Division.

Action by the Henry Fisher Packing Company against A. J. Mattox and wife. From a judgment dismissing the petition, the plaintiff appeals.

Affirmed.

Chas W. Morris and Frank A. Garlove, both of Louisville, for appellant.

Jay W Harlan, of Danville, for appellees.

MORRIS Commissioner.

Appellant a corporation having its actual and statutory place of business in Jefferson county, Ky. filed a petition in the circuit court of that county charging that appellees, Mattox and wife, residents of Mississippi, had, in Boyle county, Ky. operated an automobile owned by them in such a negligent and careless manner as to cause it to collide with its truck, resulting in such injury as required considerable repairs, for which injury monetary damage was sought to be recovered.

Process was had upon appellees in accordance with section 12-2, Ky.St.Supp. 1933, which provides for effectual service on nonresidents by execution of the process on the secretary of state, in the manner set out. As to the process and service thereof, no complaint is made, nor is there contention as to the validity of the statute, except in so far as is hereinafter discussed. Both parties concede that the constitutionality of the act generally has been determined by this court in Hirsch v. Warren, 253 Ky. 62, 68 S.W.2d 767, Mann v. Humphrey's Adm'x, 257 Ky. 647, 79 S.W.2d 17, 96 A.L.R. 584, and Hoagland v. Dolan, 259 Ky. 1, 81 S.W.2d 869, 872.

It is argued that discrimination arises by reason of the fact that section 74 of the Civil Code of Practice provides that an action for injury to the property (or person) must be brought in the county where the defendant resides, or in the county in which the alleged injury occurred, while section 2 of the statute, supra, providing for substituted service requires the action to be brought in the county in which plaintiff resides, or in the county wherein the alleged injury occurred.

Thus it will be noted if damages are sought for an injury to the person or property of one, and the injury is occasioned by the negligent act of a resident of this state, the venue is in the county of residence of the defendant, or in the county where the accident occurred, while if the same sort of injury be due to the negligence of a non-resident, the defendant must answer in the court of the residence of the plaintiff, or in the county where the injury occurred. Special demurrer questioning the jurisdiction of the court was filed and sustained by the court. An appeal was taken from an order dismissing the petition. Challenge to the venue, where and when justified by the state of the pleadings, may be by special demurrer. Pinnacle Motor Co. v. Simpson, 216 Ky. 184, 287 S.W. 566. The court based its action on the case of Power Mfg. Co. v. Saunders, 274 U.S. 490, 47 S.Ct. 678, 679, 71 L.Ed. 1165.

Counsel for appellant admitting that the language of the opinion, supra, "offers philosophical support" for the conclusion reached by the lower court, asserts that there is a distinction because in the Supreme Court case the defendant was a nonresident corporation permissively doing business in the state in which it was sued. It is also intimated that the reasoning adopted in our own cases mentioned above practically determined the question at issue in the instant case.

As to the second proposition, it is apparent the question presented here was not before the court in any one of the cases cited, supra. The same situation did not exist in any one of those cases, nor can it be said that any language used by the court is broad or far reaching enough to conclude or be of influence on the question here. In the Dolan Case, supra, the question was as to whether a nonresident could, under our statute, sue a nonresident for injury inflicted in this state, and holding that the statute was a valid police power of the state, one for facilitating the enforcement of civil remedies, indicated such could be done, but that there should be no discrimination. We said there:

"The supporting principle of such protective statutes is that states, being under no constitutional mandate requiring them to provide highways for general public use, may *** impose reasonable and uniform regulations for their use, and where such legislation extends no further than putting nonresidents on the same general footing as the states' own citizens *** it does not violate the due process provision of the Constitution." (Citing cases.)

If the law with relation to the use of highways should be uniform when dealing with residents and nonresidents, it should be uniform when redress is sought for injury occurring on the roads. The procedure provided should not result in disadvantage or advantage against or in favor of either one or the other; if it does so, the law is discriminatory and constitutes a lack of equal protection.

In the Power Case, supra, the facts were that Saunders, a citizen of Ohio, was employed in Arkansas by the defendant, a corporation of the state of Ohio, engaged in business in Arkansas. Saunders received his injury in Stuttgart, Arkansas county, named by the corporation as its chief place of business in Arkansas. Plaintiff brought his suit in Saline county, and obtained a judgment. Under the Arkansas statutes, actions of the character in question, if against a domestic corporation, were required to be brought in the county where the corporation has its place of business, or in which its chief officer resides, and if against a natural person, in a county where he resides, or may be found. Another statute permits suits against foreign corporations and persons residing outside of the state to be brought in any county in which they have property or debts owing to them.

In the case, supra,...