Louisville & N.R. Co. v. Mitchell

• Decision Date: 21 January 1915
• Citation: 162 Ky. 253,172 S.W. 527
• Parties: LOUISVILLE & N. R. CO. v. MITCHELL. [d1]
• Court: Kentucky Court of Appeals

172 S.W. 527

162 Ky. 253

LOUISVILLE & N. R. CO. v. MITCHELL. ^[d1]

Court of Appeals of Kentucky.

January 21, 1915

Appeal from Circuit Court, Knox County.

Action by W. M. Mitchell against the Louisville & Nashville Railroad Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Benjamin D. Warfield, of Louisville, and Black, Black & Owens, of Barbourville, for appellant.

J. M Robsion, of Barbourville, for appellee.

MILLER C.J.

On April, 9, 1913, the appellant furnished Mitchell, the appellee, a box car in which to remove his household effects and personal property from Barbourville, in Knox county, to Point Levell, in Garrard county. Mitchell paid $38 for the use of the car, and was required to buy a passenger's ticket, although he rode in the car which was loaded with his household effects farming implements, kitchen and dining room furniture, some lumber, four pigs in a crate, and five head of cattle and a calf fenced off in one end of the car. The car thus loaded was placed in the middle of an ordinary freight train and carried to Corbin, where it was put into a new train consisting of 46 loaded cars, Mitchell's car being placed next to the engine. When the train reached Round Stone Creek near Livingston, in Rockcastle county, from some unexplained reason Mitchell's car telescoped the tender, causing a bad wreck of Mitchell's car. The drawhead was pulled out of the car, and Mitchell received severe internal injuries, although no bones were broken, and his property was badly damaged. He brought this action in Knox county, and recovered a verdict and judgment of $10,000 for personal injuries, $350 for doctors' bills, medicines, nursing, etc., and $500 for damage to and loss of his property, making a total recovery of $10,850. From that judgment the company prosecutes this appeal, and for a reversal relies upon the following grounds: (1) The Knox circuit court had no jurisdiction of the action; (2) no negligence upon the part of the appellant was shown; (3) the verdict was excessive; (4) misconduct of plaintiff's counsel upon the trial; and (5) error in the first three instructions.

1. The contract of shipment was made in Knox county; the accident occurred in Rockcastle county, while Mitchell was on his way to Garrard county. Appellant contends that Mitchell had left Knox county for the purpose of removing to and living in Garrard county.

Section 73 of the Civil Code of Practice, which fixes the venue of actions against a common carrier, reads as follows:

"Excepting the actions mentioned in section 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 several defendants, resides; or in which the contract is made; or in which the carrier agrees to deliver the property. An action against such carrier for an injury to a passenger, or to other person or his property, must be brought in the county in which the defendant, or either of several defendants, resides; or in which the plaintiff or his property is injured; or in which he resides, if he reside in a county into which the carrier passes."

Section 83 relating to joinder of actions, provides, in part, that:

"Several causes of action may be united, if each affect all the parties to the action, may be brought in the same county, and may be prosecuted by the same kind of action."

Appellant concedes that the Knox circuit court had jurisdiction to try the appellee's claim for injury to his property, because the contract to carry said property was made in Knox county. It insists, however, that the Knox circuit court had no jurisdiction over the other two claims, for personal injuries, and for doctors' bills, medicines, nursing, etc., because under section 73 of the Code, supra, an action against a carrier for an injury to a passenger, or his property, must be brought in the county in which the defendant resides, or in which the plaintiff or his property is injured, or in which he resides, if he resides in a county into which the carrier passes. Mitchell and his property were injured in Rockcastle county; the appellant resides in Jefferson county, wherein its chief office is located; and it contends that Mitchell resided in Garrard county at the time he received the injuries to himself and his property.

Proceeding upon the theory that there was a misjoinder of causes of action, appellant attempted to raise that question by filing a speaking demurrer to the petition. This demurrer interposed an objection to the jurisdiction of the court to take cognizance of and try the three causes of action set up in the petition, and alleged that Mitchell was not a resident of Knox county at the time the injuries were inflicted, or when the petition was filed, but that he was a resident of Garrard county, through which the appellant then and at all times since operated a railroad, its chief office being in Jefferson county.

The special demurrer was properly overruled, for two reasons: First, because a demurrer cannot enlarge the allegations of a petition by reciting extraneous facts. Section 92 of the Civil Code of Practice says:

"A special demurrer is an objection to a pleading which shows that the court has no jurisdiction of the defendant or of the subject-matter of the action."

The petition does not show the facts relied upon to defeat the jurisdiction, and those facts cannot be shown by reciting them in the demurrer, as was here attempted.

In the second place, the Knox circuit court clearly had jurisdiction of the claim for injury to Mitchell's property; and, since the special demurrer was to the jurisdiction generally, it was properly overruled because the Knox circuit court had jurisdiction over one of the causes of action stated.

Appellant could have raised the question of misjoinder of actions by making a motion under section 85 of the Civil Code of Practice, to require the appellee to elect which of the actions he would prosecute. Metcalfe v. Johnson, 151 Ky. 826, 152 S.W. 951. But this it failed to do.

Appellant did, however, subsequently raise the question of the jurisdiction of the court, in its answer, by alleging that Mitchell was a resident of Garrard county at the time of the accident; and upon that allegation issue was joined and evidence taken. The only evidence, however, upon the question of residence was that of Mitchell. He testified that he had kept house in Barbourville for several years; that in February, 1912, he had bought a farm in Garrard county; and, having difficulty in securing a satisfactory tenant, he resolved to go to the farm temporarily, in the spring of 1913, for the purpose of making some needed repairs and improvements upon the farm. Mitchell was a traveling salesman for the Crescent Milling Company; and, expecting to continue his work in the territory embracing Knox county, he had rented his Barbourville house for the summer, with the agreement that his tenant would surrender it in the fall. During his absence Mitchell reserved one room of his Barbourville house for storage purposes; and he further avowed that at the time of the accident and the trial he was city clerk of Barbourville, the county seat of Knox county. Appellant offered an instruction submitting to the jury the issue as to Mitchell's residence, but the circuit court refused to give it, upon the ground that the evidence upon that issue was all one way, and showed that Mitchell was a resident of Knox county at the time of the accident. We are of opinion there was no error in this ruling. Mitchell testified without contradiction that his intended sojourn in Garrard county was to be temporary and only for the purpose of caring for his farm in that county, and that his returning to Barbourville in the fall was arranged for with his tenant, before he left Barbourville.

"Residence indicates permanency of occupation, as distinct from lodging or boarding, or temporary occupation. It does not include as much as domicile which requires an intention combined with residence. One may seek a place for purpose of pleasure, of business, or of health. If his intent be to remain it becomes his domicile; if his intent...