Speckert v. Ray

• Decision Date: 10 November 1915
• Citation: 166 Ky. 622,179 S.W. 592
• Parties: SPECKERT v. RAY, JUDGE.
• Court: Kentucky Court of Appeals

179 S.W. 592

166 Ky. 622

SPECKERT v. RAY, JUDGE.

Court of Appeals of Kentucky.

November 10, 1915

Petition by Rosalee Speckert for writ of mandamus against Charles T Ray, Judge. Petition denied.

David R. Castleman and Pryor & Castleman, all of Louisville, for plaintiff.

Humphrey Middleton & Humphrey, of Louisville, for appellee.

SETTLE J.

The plaintiff, Rosalee Speckert, seeks in this action a writ of mandamus to compel the defendant, Charles T. Ray, judge of the Jefferson circuit court, common pleas branch, fourth division, to try an action pending in his court, wherein she is plaintiff and the Old Dominion Steamship Company is defendant; the writ being asked in this court. The case has been submitted on a general demurrer filed to the petition by the defendant, which seems to present all questions raised by the parties.

It appears from the averments of the petition, and is admitted by the demurrer, that the action pending in the Jefferson circuit court, of which the defendant, Charles T. Ray, is the presiding judge, was brought to recover of the Old Dominion Steamship Company damages for alleged insult and maltreatment sustained by the plaintiff at the hands of its servants and employés while a passenger on one of its steamships sailing from Norfolk, Va., to New York, of which they were in charge. It further appears from the petition that the plaintiff, in August, 1914, purchased of the Louisville agent of the Chesapeake & Ohio Railway Company a ticket from Louisville to New York, which entitled her to be carried as a passenger from Louisville to Norfolk, Va., over the line of the railway company and from Norfolk to New York on the steamship of the Old Dominion Steamship Company. Two summonses were issued against the Old Dominion Steamship Company upon the filing of the petition, one of which was served upon R. E. Parsons, who is the district passenger agent of the Chesapeake & Ohio Railway Company at Louisville. The other was served upon C A. Pennington, the superintendent of terminals of the Louisville & Jeffersonville Bridge Company, which terminals are used by the Chesapeake & Ohio Railway Company at Louisville. The return upon the first summons was as follows:

"Executed December 29, 1914, on Old Dominion Steamship Company by delivering a copy of the within summons to Robert E. Parsons, agent of said company, he being chief officer found in this county at this time, he refusing to accept same. C.J. Cronan, S. J. C., by E. D. Waters, D. S."

The return upon the second summons was as follows:

"Executed January 2, 1915, on defendant Old Dominion Steamship Company by delivering a true copy of the within summons to C. A. Pennington, the chief agent of the Chesapeake & Ohio Railway Company found in this county, and which said railway company, as the agent of said defendant, in charge of its business in this county. C.J. Cronan, S. J. C., by C. Mueller, D. S."

The Old Dominion Steamship Company, entered its special appearance and made a motion to quash the return upon each of these summonses, and in support of the motion filed the affidavits of Parsons and Pennington. Plaintiff, as against the motion, filed her own affidavit. The circuit court, after considering the motion to quash, sustained it, to which ruling plaintiff excepted. Thereafter the plaintiff entered a motion to set aside the order quashing the return on each summons, and that the case be set on the docket for trial. This motion was also overruled by the circuit court, to which ruling the plaintiff excepted. No further orders were entered or steps taken in the case.

The affidavit of Parsons contains the statements that the Chesapeake & Ohio Railway Company operates passenger trains from Louisville to Norfolk, Va.; that the old Dominion Steamship Company is a nonresident corporation, separate and distinct from the Chesapeake & Ohio Railway Company, and that it operates a steamship line over which passengers and freight are transported from Norfolk, Va., to New York; that he (Parsons) is not, and was not at the time the summons was served on him, the agent in Kentucky of the Old Dominion Steamship Company, and that it has never had any officer or agent in Kentucky; that in selling tickets like that purchased by the plaintiff, the Chesapeake & Ohio Railway Company acts for itself as far as the transportation on its line is concerned, and sells tickets for the connecting carrier, Old Dominion Steamship Company, as far as the transportation of passengers on the line of the latter is concerned; and that each line acts independently in the matter of such transportation. The affidavit of Pennington contains the statements that, though the terminals of the Louisville & Jeffersonville Bridge Company, of which he is the superintendent, are used by the Chesapeake & Ohio Railway Company at Louisville, that company bills freight from Louisville to New York over the Chesapeake & Ohio Railway to Newport News and over the Old Dominion Steamship Company from Newport News to New York, according to the usual custom of freight transportation; that each company acts separately and not jointly in regard to such traffic; that he (Pennington) is not, and has never been, the agent of the Old Dominion Steamship Company in this state; and that company has never had an officer or agent in this state.

The counter affidavit of the plaintiff was to the effect that in purchasing the ticket in question from R. E. Parsons, he held himself out as the agent in this state of the Old Dominion Steamship Company; that as the agent of the Chesapeake & Ohio Railway Company he kept in the office of that company at Louisville pamphlets and advertising matter of the Old Dominion Steamship Company, and that the Chesapeake & Ohio Railway Company solicits freight and passenger business for the Old Dominion Steamship Company; moreover, that subsequent to the infliction upon her by the servants of the latter company of the injuries complained of in the petition, Parsons, acting for it, entered into negotiations with her looking to the settlement of her claim for damages.

After the filing of the affidavit of the plaintiff there was filed by the defendant a supplemental affidavit of Parsons, in which it was denied that he had any negotiations with plaintiff regarding her claim for damages, or that he was authorized by the Old Dominion Steamship Company to negotiate with her; that all railroads kept pamphlets in their ticket offices, showing their connecting lines all over the United States, the time of arrival and departure of trains, etc.; that when a person, desiring to go to New York, applies at the ticket office of the Chesapeake & Ohio Railway Company, the agent of that company solicits such person to travel over its line as far as Norfolk, Va., and represents at the time that it has a connection at Norfolk for New York, via the Old Dominion Steamship Company, and that a through ticket from Louisville to New York by the steamship company's line can be obtained in the Louisville office of the Chesapeake & Ohio Railway Company, and also freight transportation.

It does not seem to be claimed by the plaintiff that the service of process on Pennington is good, but it is insisted for her that the service of Parsons is valid and sufficient to give the circuit court jurisdiction in the action as to the Old Dominion Steamship Company. The two questions presented for decision by the record in this case are: (1) Whether the writ of mandamus will lie to compel a judicial officer to decide that service of process, which he had already adjudged insufficient, is good; (2) whether, if mandamus is the proper remedy, the service of process had on the defendant, Old Dominion Steamship Company, is good, and therefore sufficient to give the circuit court jurisdiction to entertain and try the action.

It is not claimed in the instant case that the defendant judge refused to act at all. On the contrary it is conceded that he entertained the case for the purpose of considering the single question presented to him, that is, whether the service of process was good or bad, and that he did decide it; and, the decision being that the service was not good, an order was entered quashing the return. The only meaning of the plaintiff's complaint is that the decision was adverse to her interest and therefore incorrect, for which reason she asks the writ of mandamus, to compel a different decision of the question, and one that will be favorable to her. In other words, what the plaintiff now seeks is, not that the judge of the circuit court be required to take action, but that he act in a manner that will deprive him of the discretion with which he is clothed as a judicial officer by the law.

Section 110 of the Constitution provides that the Court of Appeals shall have power to issue such writs as may be necessary to give it general control of inferior jurisdictions. We have never held that the above provision of the Constitution authorizes this court to exercise the power of determining questions that necessarily belong to courts of original jurisdiction and over which they have complete control subject to an appeal to this court, where an appeal is allowed. The writ of mandamus cannot be issued to compel an inferior court to decide a matter in any particular manner. The chief office of the writ, as applied to courts, is to compel action by them; but where, as in the instant case, the petition of the plaintiff alleges that the court acted, but acted in a way different from what the plaintiff desired, this court is without power to interfere to the extent of compelling, by mandamus, such action or decision on the part of the circuit court as will deprive it of the discretion conferred upon it by law. As said in ...