Peaslee-Gaulbert Co. v. Mcmath's Admr.

• Decision Date: 09 May 1912
• Citation: 148 Ky. 265
• Parties: Peaslee-Gaulbert Company v. McMath's Admr.
• Court: Kentucky Court of Appeals

148 Ky. 265

Peaslee-Gaulbert Company v. McMath's Admr.

Court of Appeals of Kentucky.

Decided May 9, 1912.

Appeal from Christian Circuit Court.

SELDEN Y. TRIMBLE, TRABUE, DOOLAN & COX and TRIMBLE & BELL for appellant.

HUNTER WOOD & SON and C. H. BUSH for appellee.

OPINION OF THE COURT BY JUDGE CARROLL — Reversing.

Herbert McMath, an experienced house painter, was killed in Christian county, Kentucky, by the explosion of a can of "No. 1, T. Japan Dryer." His administrator brought this action against Peaslee-Gaulbert Company, wholesale dealers in paints and varnishes who sold the dryer to Whitlow & Sons, for whom McMath worked, and recovered judgment for $5,000.00.

Before taking up the merits of the case, we will dispose of the question of jurisdiction raised by counsel for appellant in the lower court and in this. The action was brought in Christian county, Kentucky, and the summons served on an officer of the appellant company in Jefferson county, Kentucky, at which place is located its home office and chief place of business. Whitlow & Sons were merchants doing business in Christian county, Kentucky, and they gave an order at their place of business in Christian county to a traveling salesman for Peaslee-Gaulbert Company for the Japan dryer. This salesman only had authority to take orders for goods, and send them to the home office of the Peaslee-Gaulbert Company, at which place they were accepted or rejected by the company. The order sent by the salesman was accepted by the company, and the goods were shipped F. O. B., Louisville, Kentucky, to Whitlow & Sons, who paid the freight.

The basis of the cause of action, which sounded in tort, was the failure of Peaslee-Gaulbert Company to put a danger or caution mark, sign or label on the can of Japan Dryer. It was shipped without anything indicating its contents, except an attached tag showing that the can contained "No. 1 T. Japan Dryer."

It is insisted for appellant that under these facts the circuit court of Christian county had no jurisdiction of the cause of action, and that it should have been brought in Jefferson county.

Section 72 of the Civil Code which fixes the venue of the action provides in part that:

"* * * an action against a corporation which has an office or place of business in this State, or a chief officer or agent residing in this State, must be brought in the county in which such office or place of business is situated or in which such officer or agent resides; or, if it be upon a contract, in the above named county, or in the county in which the contract is made or to be performed or, if it be for a tort, in the first named county, or the county in which the tort is committed."

Under this section, an action for tort may be brought against a corporation which has an office or place of business in this State, or chief officer or agent residing in this State, in the county in which such office or place of business is situated or in which such officer or agent resides, or in the county in which the tort is committed. It is of course conceded that the action might have been brought in Jefferson county; and if the tort complained of was committed in Christian county, it is obvious that the Christian Circuit Court had jurisdiction of the action. This being so, the precise question for decision is, was the tort committed in Christian county, as the only ground upon which it is claimed that the Christian Circuit Court had jurisdiction is the fact that the tort was committed in that county. Assuming that the failure to put a danger or caution mark on the can containing this dryer was actionable, it is the contention of counsel for the appellant that the tort was committed in Jefferson county, at which place the dryer was sold by the appellant company and delivered as the property of Whitlow & Sons to a common carrier for shipment to their place of business. On the other hand, it is insisted by counsel for appellee that although the cause of action was based upon the failure to put a danger or caution mark on the can containing the dryer, that the tort in the meaning of the Code was committed in the county where the injury resulting from this failure occurred.

A good deal is said in argument concerning the place where the Japan dryer was sold — one side insisting that the sale took place in Jefferson county, the other that it took place in Christian County. But, we do not deem it important or necessary in disposing of the question to enter into a discussion of the place where the sale took place. We will assume that the sale was made in Louisville at which place the order was accepted and the goods delivered to a common carrier to be transported at the risk of the consignees to their place of business. If there had been no explosion, no person could have maintained an action against the appellant company for selling and sending out this article without a caution or danger sign attached to it. In other words, no actionable tort would have been committed either in Jefferson county or in Christian county. It is the fact that the explosion occurred with resulting injury that furnished the basis for the cause of action. The thing that gave life to the cause of action occurred in Christian county, where the accident happened; and, so, it would naturally seem that in Christian county, if at all, the tort complained of was committed.

It is said, however, that as the failure to put the caution or danger sign on the can is the sole ground upon which the action rests, that this negligence or tort on the part of the appellant company was necessarily committed in Jefferson county. Undoubtedly, if appellant company was guilty of negligence or tort in this respect, it was committed in that county; but, conceding this much, it does not follow that that county was the only county in which the tort was committed or the negligence done. The negligence and wrong-doing, if any, had its beginning in Jefferson county; but it was, if anything, a continuing act of negligence or wrong-doing, for which an action might be brought in any county in which injury resulted therefrom, and the cause of action did not arise until some person suffered injury or loss by reason of the wrongful act. As no actionable tort could have been committed until either person or property was injured, it seems quite clear that if the words of the Code are to be given their reasonable meaning, the venue of the action was in the county where the tort was in fact committed by the infliction of injury, as well as in the county where the tort-feasor resided. There may be a continuing species of wrong-doing that only becomes actionable when injury results therefrom, and, in such a state of case, we know of no reason why the venue of the action should not lie in the county where the overt act of wrongdoing, if we may so term it, is committed. A tort is nothing more than an injury or wrong for which a civil action may be brought by the injured party against the wrongdoer, and to give full effect to the Code provision that the action to recover damages may be brought in the county where the tort was committed, it should be construed to mean that it may be brought in that county in which the injury or wrong complained of was committed. To give to this section the construction contended for by appellant would in many instances confine the jurisdiction to the county of the defendant's residence, when it was intended that it might also be brought in the county where the person or property was in fact injured, which is usually the county of the residence of the complaining party. If it had been intended to limit the jurisdiction to the county in which the corporation resided or had its chief office, there would have been no reason for inserting the provision that the action might also be brought in the county where the tort was committed; and, as in the present case, the tort could not have been committed in any other county than that in which the injury complained of occurred, we have no doubt that the Christian Circuit Court had jurisdiction.

A case strongly supporting this construction of the Code is Mitchell v. Ripy, 82 Ky., 516. In that case it appears that an action was brought in Marion county by Mitchell against Ripy, Cohen and Edwards, to recover damages for false imprisonment. The affidavit upon which Mitchell was arrested was made by Edwards in Anderson county, and a warrant of arrest was issued against Mitchell in that county and returned "not found." Thereupon, it was sent to Marion county, where Mitchell was arrested and brought to Anderson county, and acquitted of the charge. Section 74 of the Code, which regulated the venue of the action in that case, provides that, "every other action for an injury to the person of the plaintiff, and every action for an injury to the character of the plaintiff, against a person residing in this State, must be brought in the county in which the defendant resides, or in which the injury is done." In holding that the Marion court had jurisdiction, the Court said:

"As all the defendants resided in the county of Anderson, when the action was brought, the jurisdiction of the Marion Circuit Court depends upon the meaning of the words `in which the injury was done.' In determining this question the first and most natural inquiry that arises is, for what injury to the person of the plaintiff was this action brought? The affidavit was made and the warrant for the arrest was issued in the county of Anderson. But it is clear that if nothing more had been done, the plaintiff could not have maintained this action in any court. The personal injury of which the plaintiff complains, and for which this action was brought, is his arrest and imprisonment. That was accomplished — done in Marion county. The action is against defendants, who, it is alleged, maliciously and without probable cause procured the warrant of arrest to issue, by means of which the injury...