Lytle v. Southern Ry. Co.

• Decision Date: 09 December 1907
• Docket Number: 670.
• Parties: LYTLE et al. v. SOUTHERN RY. CO.
• Court: Georgia Court of Appeals

59 S.E. 595

3 Ga.App. 219

LYTLE et al. v. SOUTHERN RY. CO.

No. 670.

Court of Appeals of Georgia

December 9, 1907

Syllabus by the Court.

A suit ex delicto against a nonresident railway company, arising out of its failure to deliver safely a shipment of goods at a point in another state, may be brought in any county in this state in which legal service of process can be made.

Error from City Court of Floyd County; Harper Hamilton, Judge.

Action by L. Lytle and others against the Southern Railway Company. Judgment for defendant, and plaintiffs bring error. Reversed.

M. B Eubanks, for plaintiffs in error.

Shumate Maddox & McCamy and Geo. A. H. Harris & Son, for defendant in error.

POWELL J.

Our statute fixing the venue of suits against railway companies is found in section 2334 of the Civil Code of 1895, as follows: "All railroad companies shall be sued in the county in which the cause of action originated, by any one whose person or property has been injured by such railroad company, its officers, agents or employés, for the purpose of recovering damages for such injuries; and also on all contracts made or to be performed in the county where suit is brought; any judgment rendered in any other county than the one in which the cause so originated shall be utterly void. But if the cause of action arises in a county where the railroad company liable has no agent, then suit may be brought in the county of the residence of such company." The venue of all cases not falling within the provisions of this section is governed by the general law. The Southern Railway Company is a nonresident corporation. Such corporations are within the purview of this section as to contracts made and torts committed in this state. Hazlehurst v. Seaboard Air Line Railway, 118 Ga 858, 45 S.E. 703; Mitchell v. Southern Ry. Co., 118 Ga. 845, 45 S.E. 703; Coakley v. Southern Ry. Co., 120 Ga. 960, 48 S.E. 372. The statute, however, does not cover the case of a tort committed in another state by a nonresident corporation. South Carolina Ry. Co. v Dietzen, 101 Ga. 730, 29 S.E. 292; Reeves v. Southern Ry. Co., 121 Ga. 561, 49 S.E. 674, 70 L.R.A. 513.

The trial court evidently took the view that from Rome to Atlanta there was one complete shipment, from Atlanta to Tampa another. While the evidence was such that we do not think the court was justified in holding this to be so as a matter of law, for there was evidence from which the jury could have concluded that as to the cattle lost a through contract was made from Rome to Tampa, yet it is not material whether the contract was made in Rome or in Atlanta, because the action is not based upon the contract. It is elementary that a shipper may elect, in case the carrier loses the goods between suing upon a breach of the contract of carriage, in which event his suit takes all the incidents of actions ex contractu, or upon the wrong arising from the carrier's breach of public duty, in which event the suit takes all the incidents of actions ex delicto. When a petition can be construed either as a suit on contract, or as an action for a breach of duty arising out of the contract, and the plaintiff has not been required to relieve the duplicity by demurrer, the latter construction, at least in cases where it is necessary to sustain the plaintiff's action, will be adopted. Seals v. Railway Co., 102 Ga. 820, 29 S.E. 116; Central Ry. Co. v. Chicago Portrait Co., 122 Ga. 11, 49 S.E. 727, 106 Am.St.Rep. 87; King v. Southern Ry. Co., 128 Ga. 288, 57 S.E. 507; Central R. Co. v. Pickett, 87 Ga. 734, 13 S.E. 750. The suit is none the less ex delicto...