Makeever v. Georgia Southern & F. Ry. Co.

Decision Date06 May 1927
Citation294 S.W. 144,219 Ky. 699
PartiesMAKEEVER v. GEORGIA SOUTHERN & F. RY. CO. ET AL.
CourtKentucky Court of Appeals

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

Action by D. S. Makeever against the Georgia Southern & Florida Railway Company and others. Judgment of dismissal, and plaintiff appeals. Reversed and remanded, with directions.

Thos C. Mapother, of Louisville, for appellant.

Humphrey Crawford & Middleton and Trabue, Doolan, Helm & Helm, all of Louisville, for appellees.

DRURY C.

The appellant, whom we shall refer to as the plaintiff, sought to recover a judgment for $1,800 against the Georgia Southern & Florida Railway Company, Southern Railway Company, Louisville & Nashville Railroad Company, and Chicago, Indianapolis & Louisville Railway, the appellees, whom we shall refer to as the carriers. He was unsuccessful, and has appealed. According to the allegations of the plaintiff's pleadings, on February 17, 1922, D. K. Young & Co. shipped to the plaintiff, Makeever, from Sparks, Ga., to Rensselaer, Ind., 145 stock pigs, which he alleges were received by the initial carrier, Georgia Southern & Florida Railway Company, at Sparks, Ga., in good condition; that no attendant accompanied the shipment; that when these pigs were delivered to him at Rensselaer, Ind., by the Chicago, Indianapolis & Louisville Railway, 6 of them were dead and that by reason of their bruised, injured, sick, depleted, and damaged condition, 127 thereafter died, leaving only 12 ultimate survivors; that the Georgia Southern & Florida Railway Company issued a through bill of lading for this shipment, which bill he filed with his pleadings; that these pigs were by the initial carrier transported to Macon, Ga., where it delivered them to the first connecting carrier, Southern Railway Company, which, in turn, transported the pigs to Atlanta, where it delivered them to the second connecting carrier, Louisville & Nashville Railroad Company, which brought the pigs to Louisville, where it delivered them to the terminal carrier, Chicago, Indianapolis & Louisville Railway, which made delivery of the shipment at Rensselaer, Ind.; that all four of these carriers participated in the transportation of the pigs from the point of origin to final destination; and that the loss, damage, and injury for which recovery was sought was caused by the negligent acts and omissions of each and all of them.

The initial carrier, Georgia Southern & Florida Railway Company, filed a motion to quash the service of summons upon it, which was sustained, and the plaintiff excepted. The second connecting carrier, Louisville & Nashville Railroad Company, and the terminal carrier, Chicago, Indianapolis & Louisville Railway, filed two motions, one to require the plaintiff to elect whether he would prosecute the action for all or any part of the damages claimed against those carriers, and another to require plaintiff to make his petition more specific and certain by setting out what part of the damages sued for was due to transportation over the lines of each. Both of these motions were sustained, and again he excepted. Thereupon the plaintiff declined to elect between these carriers or to specify what part of the damage sued for occurred on the line of or was due to the act or omission of each or any particular carrier, and declined to plead further. Whereupon the court dismissed his action.

There are three questions presented, which we shall first state, and then consider in the order in which we state them:

First, did the court err in quashing the service of the summons upon the initial carrier, Georgia Southern & Florida Railway Company?

Second, were the allegations made by the plaintiff as to the control and operation of the Georgia Southern & Florida Railway Company by the first connecting carrier, Southern Railway Company, sufficient to constitute it equally with the Georgia Southern & Florida Railway Company, an initial carrier of this shipment?

Third, were the allegations of the plaintiff's pleading relative to these carriers participating in the transportation of these pigs sufficient to hold each and all of them liable for such damages as occurred on the line of or by reason of the acts or omissions of each and all of them?

At this point, we deem it well to state that from this record it appears that there is no such organization as the "Southern Railway System." This is simply a term used to designate the various companies which are controlled by the Southern Railway Company. These various companies, eight in number, operate in concert, and are known as the Southern Railway System. They all have the same president, vice presidents, secretary, treasurer, comptroller, traffic managers, and other general officers. The initial carrier, Georgia Southern & Florida Railway Company, in support of its motion to quash the service of summons, filed affidavits to the effect that it operated no line of railroad in Kentucky and did no business in this state of a character sufficient to subject it to service of process. By subsection 6 of section 51 of the Civil Code, this service was authorized, if the Georgia Southern & Florida Railway Company was engaged in business in this state. The expressions "engaged in business," "doing business," and others similar, have often been before the courts. See cases of Green v. Chicago, B. & Q. R. Co., 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916; Philadelphia & R. R. Co. v. McKibbin, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710; and numerous others which are cited in the case of Thurman v. Chicago, M. & St. P. R. Co., 254 Mass. 569, 151 N.E. 63, 46 L. R. A. 563. See, also, what we have written in Commonwealth v. Southern R. Co., 193 Ky. 474, 237 S.W. 11; Tenn. Pub. Co. v. Walker, 205 Ky. 420, 265 S.W. 941; and Moore v. Racine Rubber Co., 194 Ky. 106, 238 S.W. 381.

It appears to be settled that the mere solicitation of business by the agent of a foreign corporation does not constitute the doing of business in such a way as to manifest the presence of the corporation in the state, and to justify its enforced appearance in the courts thereof by summons. The plaintiff here contends the facts of this case bring it within the rule announced by the Supreme Court in St. Louis S.W. R. Co. v. Alexander, 227 U.S. 218, 33 S.Ct. 245, 57 L.Ed. 486, Ann. Cas. 1915B, 77. In that case, service of a summons from a state court of New York on a resident director of the St. Louis Southwestern Railway Company was upheld on proof of the maintenance there of comparatively minor offices of the St. Louis Southwestern Railway Company, which was shown to be part of the Cotton Belt Route. The Georgia Southern & Florida Railway Company is shown by affidavits and other proof in this case to be a part of the Southern Railway System. It seems conceded that R. L. McKellar, the foreign freight traffic manager of the Georgia Southern & Florida Railway Company at Louisville, is an important official of that company and is a proper party on whom to serve summons, if that company is doing business in Kentucky of a character sufficient to subject it to suit in this jurisdiction. In opposition to the motion to quash, the plaintiff filed the affidavits of his attorney and those of two experienced traffic managers with exhibits attached, in the shape of maps of the Southern Railway System, and pages from "The Official Guide of the Railways." Plaintiff also took the deposition of R. L. McKellar. From these it seems apparent that the Georgia Southern & Florida Railway Company is, for all practical purposes, being operated as a division of the Southern Railway. The official guide, above referred to, shows the maintenance at Louisville, Ky. by the Georgia Southern & Florida Railway Company in its own name, of two important freight traffic officials, and a general solicitor. One of these officials, Mr. McKellar, on whom the process was served, says it also maintains a division freight office there, presided over by Mr. Perry. These officials give attention to both foreign and domestic business in and around Louisville. Mr. McKellar is also foreign freight traffic manager of the Southern Railway Company, which issues his salary check, but he holds the same position with each road comprising the Southern Railway System, including the initial carrier, Georgia Southern & Florida Railway Company, over whose division officers he has and exercises authority in matters relating to import and export traffic over that line to and from all points, including points in the state of Kentucky. Mr. McKellar in his deposition was asked about his services to the various companies operated as the Southern Railway System, and we find this in his deposition: "You don't overlook any opportunities to serve any of them." To which he answered, "I hope I do not." His work embraces not only solicitation, but, to use his own language, "My business is to supervise the solicitation and rate adjustment on export and import business." The term, "rate adjustment" would appear to include the establishment and alteration of rates and provision for their publication through proper channels, and this seems to us important business, whether the traffic moving to or from points in Kentucky is foreign or not.

In the Alexander Case, it appears that correspondence was had with the carrier's agent in New York about the particular claim sued on there, and settlement of the claim was attempted, and it is fairly inferable from this record that such negotiations could have been conducted here, through the agents of this initial carrier, Georgia Southern & Florida Railway Company, at Louisville, had the plaintiff so desired. All the facts considered, we think they showed the doing of business in...

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    ... ... v. Illinois Central R. Co., 138 La. 81, 70 ... So. 44, Ann.Cas. 1917C, 935; Dietz v. Southern P. R ... Co., 225 Mo.App. 39, 28 S.W.2d 395; Makeever v ... Georgia S. & F. R. Co., 219 Ky ... ...
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