Knight v. Pennsylvania R. Co.

• Citation: 264 Ky. 412,94 S.W.2d 1013
• Parties: KNIGHT v. PENNSYLVANIA R. CO.
• Decision Date: 19 May 1936
• Court: Kentucky Court of Appeals

94 S.W.2d 1013

264 Ky. 412

KNIGHT v. PENNSYLVANIA R. CO.

Court of Appeals of Kentucky

May 19, 1936

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

Suit by Charles H. Knight against the Pennsylvania Railroad Company. From a judgment of dismissal, plaintiff appeals.

Reversed.

Thomas C. Mapother, of Louisville, for appellant.

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

STANLEY Commissioner.

Appellant Charles H. Knight, sued the appellee, Pennsylvania Railroad Company, in the Jefferson circuit court to recover $529.13 for damages to livestock shipped from Chicago to Raleigh, N C., over the lines of the defendant and its connecting carriers. The damages were caused, as alleged, by the death and injury of hogs and the loss suffered by a decline in the market price during an unreasonable delay in transportation. Summons was served upon the agent and chief officer of the company in Jefferson county. The defendant filed a plea to the jurisdiction of the court, setting out that it is a foreign corporation; Jefferson county, Ky. is not the county of its residence, nor the county in which it agreed to deliver the property, the contract being for shipment from Chicago, Ill., to Raleigh, N.C.; that the Jefferson circuit court does not have jurisdiction of the case or the cause of action. This was verified by the agent upon whom the summons had been served, who described himself in the verification as the defendant's chief officer in Jefferson county, Ky. and the process agent of the defendant. A demurrer to the plea having been overruled, a reply was filed which, following a traverse, affirmatively alleged (so far as material to the question at issue) that the plaintiff is a resident of Jefferson county, Ky.; the contract was to be performed in North Carolina; the action is transitory, coming within the terms of section 78 of the Civil Code of Practice; the defendant does reside and maintain its principal place of business in Kentucky at a certain address in Jefferson county; and that section 73 also permits the action to be brought in that county. It set out that the defendant for many years had been doing business in this state, and operating a line of railroad in that county, but in none other in Kentucky, and that Jefferson county is the county of its residence in Kentucky. An amendment averred that the defendant had previously become a corporation, citizen, and resident of Kentucky by complying with the provisions of section 841 of the Kentucky Statutes. A demurrer to the reply to the plea to the jurisdiction was sustained, and, the plaintiff having declined to plead further, the court dismissed his petition. He brings appeal.

Section 78 of the Civil Code of Practice provides that any action not required by preceding sections to be brought in some other county may be brought in any county in which the defendant resides or is summoned. In relation to a suit such as the one at bar, section 73 provides that an action against a common carrier upon a contract to carry property must be brought in the county in which the defendant resides, or in which the contract was made, or in which the carrier agreed to deliver the property. Continuing, the section provides for venue of actions for an injury to a "person or his property," not only in the county in which the defendant carrier resides, but also in the county where he or his property was injured, or in the county in which the plaintiff resides, provided the carrier passes therein. Section 73 first appears in its present form (excepting the amendment of 1928 respecting actions brought by personal representatives) in the Code of 1877. As section 102 in the Code of 1854, the venue against a carrier for an action on contract or for a tort was placed in any county through which its line passed. The effect of the change in 1876 is to restrict the venue of actions in tort not purely transitory to the county in which (1) the carrier resides, (2) the injury occurred, or (3) the plaintiff resides if the carrier passed through that county. It limits actions upon a contract of carriage, however, to the county where (1) the carrier resides, (2) the contract was made, or (3) the delivery was undertaken. Richardson v. Louisville & N. R. Co., 129 Ky. 449, 111 S.W. 343, 112 S.W. 582, 33 Ky.Law Rep. 916, 972; Jewell v. Louisville & N. R. Co., 145 Ky. 493, 140 S.W. 689, 691.

In construing section 73 in its relation to tort actions in Illinois Central R. Co. v. Stith's Adm'r, 120 Ky. 237, 85 S.W. 1173, 1174, 27 Ky.Law Rep. 596, 1 L.R.A. (N.S.) 1014, the court said: "When the General Assembly enacted section 73 of the Code, it evidently had the convenience of all parties in mind. Therefore it allowed the plaintiff to sue at the home of the defendant, if he so desired, or go to the county where the injury was inflicted, and where it would probably best suit the convenience of the witnesses, or to his own home county, provided the carrier passed through such county. The purpose of this last clause was to place the jurisdiction convenient to the plaintiff, and yet not inconvenient to the defendant. The fact that plaintiff resided there would make it convenient for him, and the fact that the defendant passed through the county would insure that it would not be unreasonably inconvenient to it. There is reason in this provision."

Quoting those remarks in the Jewell Case, it is suggested that some such desire may have actuated the enactment of the second part of section 73 relating to suits on contracts. Ordinarily, the shipper may sue for damages to his goods either in contract or in tort for breach of the public duty of the carrier. 1 C.J. 1025. Whether this action be regarded as one strictly in tort, in which the venue is clearly in Jefferson county because it is the plaintiff's residence and the carrier is doing business therein, or in contract, it is not necessary to consider, for in either event venue lies in the county in which the defendant resides. If the defendant railroad company resides in Jefferson county, that is sufficient.

The decision is rested upon this without any purpose to determine one way or the...