125 S.E. 99 | W. Va. | 1924
Plaintiff below, A. C. Gridelli, shipped a carload of household goods from Elizabeth, Wirt County, to himself as consignee at Radnor, in Wayne County, routed over the Baltimore Ohio Railroad to Kenova; thence over the Norfolk Western Railway, plaintiff in error, to Radnor, for which he paid $148.20 to apply on the transportation charges. The bill of lading was dated March 23, 1923. When the car arrived at Parkersburg, it was opened by some of the railway employees, thinking it was a car to be unloaded at that place, when it was discovered that the household goods were indifferently packed and crated; and that a truck was in one end of the car and had not been billed. C. F. Ritchie, trunk line freight inspector employed by the railroads, was called to *402 inspect the car, and discovering that the packing terms were not complied with, he penalized the shipment and gave it another classification which called for more freight charges, and $87.80 additional was assessed against the shipment. The car was then presumably resealed and sent on its way to its destination. When it arrived at Wayne, in Wayne County on the line of defendant, the connecting carrier, it was there set off and plaintiff was notified of the charges. The car remained there seven or eight days, and after the additional freight charges had been paid by plaintiff, it was forwarded to him at Radnor, where upon its arrival he discovered that the car was unsealed; that the furniture was damaged by being scratched and broken; that the locks on two trunks had been broken off and the contents rifled; that a metal filing cabinet had been broken into and the combination lock thereon destroyed; that the piano had been removed from its box and damaged; that the drawers of the furniture had been pried open and some of the doors broken.
For the damage to his goods he instituted this suit, claiming therefor $330.00 and including excess freight $87.80 paid at Wayne, and $28.00 demurrage on the car. He waived $145.80 of the damage, freight and demurrage and sought judgment for $300.00. Suit was instituted before a justice of the peace of Mingo County, where after several continuances on motion of defendant, the case was tried and judgment rendered for plaintiff for $300.00. Upon appeal to the circuit court and trial by jury verdict was rendered for $250.00, and judgment entered thereon January 17, 1924. This writ of error followed.
The errors assigned are: (1) that the court was without jurisdiction to try the case because it had been instituted in the wrong county; (2) that the verdict is contrary to the law and evidence; and (3) the verdict is excessive.
Did the circuit court have jurisdiction of the subject matter and parties? This is the important and perhaps controlling point in this case. If the justice of the peace had no jurisdiction of the subject matter or parties in the first instance, then the circuit court could acquire no jurisdiction on the appeal. Brotherton v. Robinson,
It may be observed that these variant holdings are based largely upon particular statutory enactments. Defendant is a foreign corporation, presumably admitted to hold property and do business in this State and being a Virginia railroad corporation has the status of a resident of this State. Nothing in its admission to the State or in the laws fixing its status designates its habitat or place of residence in the State; and we have come to the conclusion that the residence of such railroad corporations for the purposes of suits by and against them is in any county where they conduct corporate business and where an agent of such corporation may be on whom process can be served. It is suggested in appellant's brief that because the Auditor of the State is by virtue of the statute made the agent for service of process on all foreign and non-resident domestic corporations that the place of residence of defendant is in the County of Kanawha where the Auditor resides; hence no justice's court would have jurisdiction of a transitory action outside of the county in which the action arose, except in the County of Kanawha. We do not think the residence of the statutory agent would define the residence of the corporation itself. The proposition contended for would preclude suit on a cause of action, (unless it be brought in the county where the cause of action arose), in any other county in the State except in the County of Kanawha, if, perchance, the action was cognizable by and instituted before a justice of the peace. We do not think our statutes would authorize the conclusion that a plaintiff with a transitory action would be forced to bring his suit against a railroad company in the county where the cause of action arose if cognizable by a justice of the peace, or be precluded from suing before a justice elsewhere in the State except at the seat of government. In the circuit courts the venue of an *408 action against a railroad corporation is in the county where it does business, if its principal office be not in this State, and its president or other chief officer does not reside therein. In such cases the residence of defendant for the purposes of suit is where it does business, and we can not see why the same rule and reason should not apply to the court of a justice of the peace. It is evident that defendant conducts its corporate business in the County of Mingo. It maintains an agent there on whom process was served. We will take judicial notice that the main line of defendant's railroad extends through the County of Mingo; and we have come to the conclusion from this record that it resides in that County for purposes of suits by and against it; and that the justice had jurisdiction of this transitory action.
It is insisted that the verdict is contrary to the law because the court had no jurisdiction. That point of error is disposed of, as we have determined that the justice's court had jurisdiction; consequently the circuit court had like jurisdiction on appeal. We can not see that the verdict is contrary to the evidence or that it is excessive. Plaintiff and his witnesses showed in detail to the jury the amount of damage which was sustained in the transit of the goods. The items of excess freight, $87.80 and demurrage paid at Wayne, $38.00, were stricken out by the court and do not enter into the verdict. The damage to the goods itemized as to the various articles and amount of damage to each article is shown by plaintiff's evidence, and in the aggregate is far more than the amount of the verdict. Defendant sought to show that the damage was much less by an inspector who examined the furniture after it was delivered, and that the goods were not new. No one fixed their values, except possibly the piano, and filing cabinet. This was purely a jury question, and in considering it the oral evidence of the defendant in conflict with that of the plaintiff must not be considered. The verdict can not be disturbed on these grounds. The judgment will be affirmed.
Affirmed. *409