Knight v. Pennsylvania R. R.

• Decision Date: 24 October 1939
• Parties: KNIGHT v. PENNSYLVANIA R. R.
• Court: Kentucky Court of Appeals

132 S.W.2d 950

280 Ky. 191

KNIGHT v. PENNSYLVANIA R. R.

Court of Appeals of Kentucky

October 24, 1939

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division; Wm. H. Field, Judge.

Action by Charles H. Knight against the Pennsylvania Railroad for damage to livestock resulting while in the hands of the defendant as a terminal carrier. From an adverse judgment plaintiff appeals.

Reversed.

Thomas C. Mapother, Sr., of Louisville, for appellant.

Crawford Middleton, Milner & Seelbach, of Louisville, for appellee.

STANLEY Commissioner.

The question is one of jurisdiction. The trial court, deciding the case upon the pleadings, held that the Jefferson circuit court was without jurisdiction. We summarize the pleadings so as to disclose the only features necessary to be considered in solving the problem posed by the appeal of the plaintiff.

The plaintiff sued to recover loss and damage to livestock shipped from points in Virginia to a point in Pennsylvania, the defendant Pennsylvania Railroad Company being only the terminal carrier. He stated that both he and the defendant resided in Jefferson County. The defendant filed a plea to the jurisdiction of the court in which it denied that the plaintiff resided in Jefferson County, and affirmed that he resided in Tennessee. It averred that the shipments were in interstate commerce and were never in Kentucky and none of its agents in Kentucky had anything to do with the transactions; that it is a Pennsylvania corporation and that its operations in Kentucky are in Louisville for terminal purposes and that it engages only in interstate transportation in this state; that in one shipment described in the petition Hamilton was the consignor and Lorah the consignee, and in the other that King was the consignor and Dunlap the consignee, and that in both the Norfolk and Western Railroad Company was the initial carrier, which had issued the bills of lading; that the alleged cause of action had been assigned to plaintiff by the consignors. It was further averred that claims for loss and damage to freight against interstate carriers and this defendant were numerous and often the amounts large; that these transactions were remote from Jefferson County, Kentucky. It was elaborately pleaded that a trial there would be inconvenient and expensive to the defendant in overcoming the presumptions of liability which the law imposes upon a carrier: that to properly develop this and other like cases would require the testimony of numerous witnesses from various points through which the shipments were carried and would require the absence of employees from their customary positions; that it would impair the efficiency and operation of the railroad and burden interstate commerce. It was further set out that the courts of Virginia and Pennsylvania, the places where the witnesses were engaged in their work and could testify without leaving their customary occupations and traveling great distances, were available to the plaintiff for redress. It was pleaded that under the specified conditions to construe the sections of the Kentucky Civil Code of Practice relating to the venue of actions against common carriers in the several counties so as to vest jurisdiction of the court in this case would violate the commerce and equal protection clauses of the constitution of the United States (U.S.C.A.Const.art. 1, § 8, cl. 3; Amend. 14).

The court overruled a demurrer to the pleading, and the plaintiff filed a reply in which he denied practically all of its allegations. He affirmatively pleaded the application of the Interstate Commerce Act of Congress making the delivering carrier of a shipment liable for its loss or damage, and specifically relied upon that part of the act relating to the jurisdiction of State courts of actions therefor, which will be presently considered. It was further averred that in Jefferson County, Kentucky, the defendant operates a line of railroad for both freight and passenger trains; owns extensive properties; has both freight and passenger depot and officers; and employs many agents and servants, including a division passenger agent and division freight agent, important officers of the company. It was further averred that the company, a foreign railroad corporation, had complied with the terms of Section 841, of the Kentucky Statutes, relating to domestication within the state for the purpose of operating railroads herein, and had its principal office and place of business in Jefferson County. The plaintiff alleged that he had taken formal assignments to himself from the consignors named in the bills of lading because they were his agents and he was the owner of the livestock, and because such assignments had been made to meet the requirements of the defendant's freight claim agent, with whom the claims had been filed. It was further stated that the points of origin, transportation and destination are within 24 hours travel of Louisville, that the testimony of all witnesses could be given by deposition, and it was not essential that they should appear in person.

The court sustained a demurrer to this reply to the plea of jurisdiction. The plaintiff suffered the dismissal of his petition by declining to plead further, and brings an appeal.

The demurrer searches the entire record in testing its sufficiency on the question of jurisdiction. For that test we accept as true the allegations of fact against the defendant railroad company, whether they are admitted or denied, and consider its favorable allegations which are not controverted. Those allegations may be thus condensed and arranged. The plaintiff is a resident of Jefferson County, Kentucky, and the consignor and owner of the shipments. The defendant is also a resident of that county where it operates a line of railroad and has division officers. The defendant was the terminal carrier; the transactions were entirely in other states; and the shipments constitute interstate commerce. No agent of the defendant in Kentucky had anything to do with the transactions. There is a mixed allegation of fact and conclusion of law that there would be no inconvenience or expense or detriment such as would burden interstate commerce by trying the case in Jefferson County, Kentucky.

We have held in a case between the same parties, involving similar shipments in interstate commerce wholly outside Kentucky, that for the purpose of jurisdiction the defendant, Pennsylvania Railroad Company, resided in Jefferson County, Kentucky, and was amenable to the processes of the court there. Knight v. Pennsylvania Railroad Company, 264 Ky. 412, 94 S.W.2d 1013. The decision was as to jurisdiction of the person. This case concerns the jurisdiction of the subject matter, which was not questioned there. We suppose no one would claim that a suit to recover for loss and damage to a shipment of freight is not a transitory action, maintainable wherever the defendant may be brought before the court, unless there is something in the way not encountered in the usual case of this kind. As just stated, we hold that the limitations of Sections 73 and 78, of our Civil Code of Practice, are not in the way of the Jefferson Circuit Court taking jurisdiction of the person of the Pennsylvania Railroad Company. There must be some other controlling statute that deprives that court of jurisdiction because of the nature of the subject matter of the case.

The plaintiff's right to maintain this action against the defendant on the allegation that it was only the terminal carrier of the shipments rests wholly upon a Federal statute, namely, the Interstate Commerce Act (U.S. Code, Title 49, Section 20, Par. (11), 49 U.S.C.A. § 20 (11), which imposes liability for loss or damages to a shipment upon any carrier delivering or undertaking to deliver it in the course of interstate transportation. But for this act of Congress there would be no unity of responsibility of all carriers handling the shipment and the suit could be maintained only against the carrier which committed some breach of duty on its line. Chicago & N.W. R. Co. v. Whitnack Produce Company, 258 U.S. 369, 42 S.Ct. 328, 66 L.Ed. 665; Oregon-Washington R. & Nav. Co. v. McGinn, 258 U.S. 409, 42 S.Ct. 332, 66 L.Ed. 689. Cf. Cincinnati, N. O. & T. P. Railway Company v. Rankin, 153 Ky. 730, 156 S.W. 400, 45 L.R.A.,N.S., 529, on petition for rehearing, 154 Ky. 549, 157 S.W. 926. However, the fact that the right of action springs from a Federal statute does not deprive the State court of jurisdiction. It is concurrent with the Federal courts. Louisville & Nashville Railroad Company v. Scott, 133 Ky. 724, 118 S.W. 990, 19 Ann.Cas. 392, affirmed 219 U.S. 209, 31 S.Ct. 171, 55 L.Ed. 183; Galveston, H. & S. A. Railway Company v. Wallace, 223 U.S. 481, 32 S.Ct. 205, 56 L.Ed. 516. It was held in Missouri ex rel. St. L. B. & M. R. Co. v. Taylor, 266 U.S. 200, 45 S.Ct. 47, 48, 69 L.Ed. 247, 42 A.L.R. 1232, that: "The Federal right is enforceable in a state court whenever its ordinary jurisdiction as prescribed by local laws is appropriate to the occasion and is invoked in conformity with those laws."

The interpretation of the act by the United States Supreme Court is entitled not only to great deference but to absolute obedience and must therefore control this decision. Forkner v. Louisville & Nashville Railroad Company, 232 Ky. 579, 24 S.W.2d 290. Before the amendment of March 4 1927, the Interstate Commerce Act did not impose this agency liability upon the terminal carrier, but it did upon the initial carrier. That imposition of liability for loss beyond its own line, although enforceable in State courts as well as in the Federal courts, did not enlarge the venue of the action as against a foreign corporation as...