Mississippi Power & Light Co. v. Lowe

Citation175 So. 196,179 Miss. 377
Decision Date14 June 1937
Docket Number32782
PartiesMISSISSIPPI POWER & LIGHT CO. et al. v. LOWE et al
CourtMississippi Supreme Court

Division A

Suggestion Of Error Overruled July 19, 1937.

APPEAL from the circuit court of Lawrence county HON. HARVEY MCGEHEE, Judge.

Action by Julius Lowe and others against the Mississippi Power &amp Light Company and another. From a judgment for plaintiffs defendants appeal. Affirmed.

Affirmed.

Green, Green & Jackson, of Jackson, and C. E. Gibson, of Monticello, for appellants.

The lower court was without territorial jurisdiction or venue of this cause.

The right of a defendant, whether individual or corporate, to be sued in the proper venue and territorial jurisdiction is a valuable and substantial right, and which will not be denied upon a strained or doubtful construction of any statutory provision. Thus, the general rule is stated that the right given to a defendant to be sued in the county of his residence is a valuable right.

67 C. J. 97.

Most of the states have statutes similar to our own, which provide that a citizen of the state can be sued only in the county of his residence, unless a joint defendant resides in another county.

67 C. J. 101, 102 and 103; Section 129, Code of 1930; Chapter 7, Art. 2, Code of 1930; State v. Superior Court of Okanogan County, 198 P. 744, 116 Wash. 122; Campbell v. Triplett, 74 Miss. 367.

Unless there was territorial jurisdiction or venue in the Circuit Court of Lawrence County, Mississippi, as to the Mississippi Power & Light Company, then there is no doubt but that there was no venue or territorial jurisdiction of James A. Bennett, the individual defendant.

The action herein was based upon the alleged negligent operation of an automobile bus, substantially similar to all other automobiles in its manner of operation. We are conscious that Section 496 provides that actions against power corporations may be brought in any county wherein any portion of the line may be, but this is a motor transportation line over the highways of the State of Mississippi, and therefore is confined to "in any county in which any part of such railroad, express line or route, steamboat way, power, super-power, telephone or telegraph line or motor transportation line or route may be." That is to say, there is no portion of the route whereover this line runs in Lawrence County, and therefore being a transportation operation, no venue thereasto may be claimed therefor. If it be claimed that by reason of the ownership being in a power company, then that would fall within the condemnation of the rule hereinafter adverted to as a violation of the Constitution. As against an individual or a domestic corporation, the venue must be in the county of the residence or where the cause of action accrued. And this question may be raised by plea in abatement.

Arnette v. Smith, 142 So. 478, 165 Miss. 53, 145 So. 638; Bank v. Pettey, 164 So. 316; Trolio v. Nichols, 160 Miss. 611, 133 So. 208; Section 4140, Code of 1930; Batton v. McDonald, 131 So. 880, 159 Miss. 322; Lewis v. Francher, 111 Miss. 656, 71 So. 997.

All parties being residents of Hinds County, where the cause of action accrued, that here at issue is, may this suit be brought in Lawrence County when no part of the transportation line whereon the accident happened is within that county? We say not.

Sandford v. Dixie Construction Co., 128 So. 887, 157 Miss. 626; Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292; Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677; 9 Fletcher Cyc. Corp., sec. 4357, page 141; Wytheville Ins. Co. v. Stultz, 87 Va. 629, 13 S.E. 77.

Here, the Mississippi Power & Light Company admittedly is engaged in divers separable and distinct types of business, and in this particular case, the operation of the automobile bus is in no way connected with the operation of a power line or a super-line in Lawrence County, Mississippi. The bus transportation operation is found in so far as this suit is concerned wholly and only within the City of Jackson, First Judicial District, Hinds County, Mississippi.

Firemen's Fund Ins. Co. v. Cole, 152 So. 872.

It is, therefore, apparent from the doctrine laid down by the line of authorities above that when a foreign corporation has been domesticated in this state to the extent of appointing a resident agent for the service of process, pursuant to Sec. 4140, Code of 1930, it can only be sued in the county in which such resident agent is domiciled or in which the cause of action accrued. As is patent on the face of the pleadings, if a cause of action has accrued to the plaintiff herein, it necessarily did so in Hinds County and not Lawrence County.

The inescapable conclusion is that the Circuit Court of Lawrence County has not territorial jurisdiction over the defendant, Power Company, and the venue was improper. Applying the line of authority cited above (construing Secs. 495, 4140 and 4163, Code of 1930) to the facts in instant case, it is obvious that such cause of action as the plaintiff may have could only be maintained in Hinds County.

Should the statutes above be construed differently so as to allow the defendant herein to be sued in Lawrence County when the cause of action accrued in Hinds and the defendant's principal office and resident agent are located there, then this defendant would not be on the same footing with domestic corporations. In adopting the present rule as laid down in Sandford v. Dixie Constr. Co., 157 Miss. 626, our Supreme Court had in mind the doctrine enunciated by the Supreme Court of the U. S. in Power Mfg. Co. v. Saunders, 71 L.Ed. 1165, holding that in such matters a statute discriminating against foreign corporations would be in contravention of the "equal protection of the law" clause of the Fourteenth Amendment of the Federal Constitution.

18 Fletcher Cyc. Corp., sec. 8652, page 157; 17 Fletcher Cyc. Corp., sec. 8396, page 263; L. & N. R. Co. v. Gaston, 54 L.Ed. 542; Hanover Fire Ins. Co. v. Carr, 71 L.Ed. 372; Southern R. Co. v. Greene, 54 L.Ed. 537; State v. L. & N. R. Co., 97 Miss. 35, 51 So. 918; Sandford v. Dixie Const. Co., 157 Miss. 626.

Since the defendant in the present case had fully qualified under the statutes by appointing a resident agent who was domiciled, with their principal offices in Jackson, Hinds County, and since such cause of action as has accrued to plaintiff did so in Hinds County, it is obvious that the venue is improperly laid and the Circuit Court of Lawrence County had no territorial jurisdiction over the person of the defendant to hear and determine this cause of action. It was, therefore, proper for the court to have sustained defendants' special plea to the venue and jurisdiction and abate and dismiss the declaration.

Archibald v. Miss., etc., R. Co., 66 Miss. 424, 6 So. 238.

If, however, the statutes do not sustain the construction which we earnestly urge demonstrates that there was no jurisdiction in the Circuit Court of Lawrence County, Mississippi, then we respectfully submit, with deference, that to confer venue and territorial jurisdiction upon the Circuit Court of Lawrence County, Mississippi, would be in contravention of the Federal Constitution.

Metropolitan Casualty Co. v. Brownell, 294 U.S. 583, 79 L.Ed. 1072; Power & Mfg. Co. v. Saunders, 274 U.S. 490, 71 L.Ed. 1165; Kentucky Finance Corp. v. Paramount Auto Exch. Corp., 262 U.S. 544, 67 L.Ed. 1112, 43 S.Ct. 636; Hanover F. Ins. Co. v. Harding, 272 U.S. 494, 71 L.Ed. 372, 47 S.Ct. 179, 49 A. L. R. 713; Guinn v. U.S. 238 U.S. 347, 59 L.Ed. 1340, 35 S.Ct. 926, L. R. A. 1916A, 1124.

The peremptory instructions should have been given to both of the defendants.

Vann v. Tankersly, 164 Miss. 748, 145 So. 642; 42 C. J. 890, sec. 592; Meridian Coca-Cola Co. v. Watson, 161 Miss. 108, 134 So. 824; Hall v. Caughran, 160 Miss. 571, 134 So. 576; McDonald v. Moore, 159 Miss. 326, 131 So. 824.

The court erroneously refused to permit the defendants to elicit testimony from plaintiffs to show why this suit was filed in the Circuit Court of Lawrence County, Mississippi, when all of the parties and the witnesses resided in Hinds County, Mississippi, and the cause of action here asserted occurred and accrued in Hinds County, Mississippi.

1 Wigmore on Evidence (2 Ed.), 584, sec. 284; Merritt v. New York, etc., R. Co., 38 N.E. 447.

Patterson & Hobbs, of Monticello, and Roy Arnold, of Jackson, for appellees.

Turning directly to the question of territorial jurisdiction or venue, attention is respectfully directed to Section 495, Code of 1930.

Plummer-Lewis Co. v. Francher, 111 Miss. 656, 71 So. 907.

In the Plummer-Lewis Case, the court recognized at the outset that "the venue of civil actions generally is fixed by Section 707, Code of 1906, 'in the county in which the defendant or any of them may be found, except where otherwise provided, and except actions of ejectment and actions of trespass on land.' Sections 708, 709, 710 and 711 (now sections 496, 497, 498 and 499, Code 1930) provide for the venue of actions in cases that are described in Section 707 by the phrase 'except where otherwise provided.' The defendant in this case does not come within the excepted class of defendants mentioned in Sections 708, 709, 710 and 711, nor is this an ejectment suit, or action of trespass on land."

Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409; Tchula Commercial Co. v. Jackson, 147 Miss. 296, 111 So. 874; Pan-American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480.

Section 496, Code 1930, does not require that process must be served upon the named defendant or defendants within the county where the action is commenced. In other words, it does not require that the named defendant or defen...

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6 cases
  • City of Jackson v. Wallace
    • United States
    • Mississippi Supreme Court
    • May 20, 1940
    ... ... First Judicial District of Hinds County, Mississippi ... Secs ... 495, 496, 2370, 2984, Code of 1930; Chap. 335, ... joining of the Mississippi Power and Light Company. She ... relies on the case of Oliver v. Loye, 59 Miss ... v. Pate, 157 ... Miss. 822, 126 So. 480; Miss. Power & Light Co. v. Lowe, 179 ... Miss. 377, 175 So. 196 ... Appellant ... claims, ... ...
  • Austin v. Wells
    • United States
    • Mississippi Supreme Court
    • January 19, 2006
    ...he is not fraudulently joined for the purpose of fixing venue." Myers, 212 Miss. at 89, 54 So.2d at 169 (citing Miss. Power & Light Co. v. Lowe, 179 Miss. 377, 175 So. 196 (1937); Daniel v. Livingstone, 168 Miss. 311, 150 So. 662 (1933); Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 8......
  • F. B. Walker & Sons, Inc. v. Rose
    • United States
    • Mississippi Supreme Court
    • March 16, 1955
    ...Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409; Daniel v. Livingstone, 168 Miss. 311, 150 So. 662; Mississippi Power & Light Co. v. Lowe, 179 Miss. 377, 175 So. 196; Myres v. Vinson, 212 Miss. 85, 54 So.2d This case was continued at the return term of the lower court, and at the next ......
  • Mississippi Power Co. v. Luter
    • United States
    • Mississippi Supreme Court
    • August 17, 1976
    ...at 835 (1975). We held the venue statute (Mississippi Code Annotated section 11-11-5) was constitutional in Mississippi Power & Light Co. v. Lowe, 179 Miss. 377, 175 So. 196 (1937) (appeal dismissed 302 U.S. 644, 58 S.Ct. 123, 82 L.Ed. 501 (1937)) and the argument by defendant in this case ......
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