221 S.W.2d 449 | Ky. Ct. App. | 1949
Affirming.
The appellant, Lewis E. James, sued the appellee, The Nashville, Chattanooga St. Louis Railway, in the Jefferson Circuit Court to recover $100,000 for personal *617
injuries received by him while employed by the appellee as a brakeman. The accident in which appellant was injured occurred on October 8, 1946, in the Tracy City Yard of the appellee in Tracy City, Tennessee. The action was brought under the Federal Employers' Liability Act,
The appellee, a Tennessee corporation, operates a railway line which is located in Alabama, Tennessee and Kentucky. The line in Kentucky passes through Calloway, Fulton, Marshall and McCracken Counties to Paducah in McCracken County. Summons was served upon Paul C. Swann who was designated in the amended return of the sheriff as "The Chief Agent and highest officer of the defendant, The Nashville, Chattanooga St. Louis Railway, a corporation, in the County of Jefferson and State of Kentucky." A motion to quash the sheriff's return, accompanied by the affidavit of Paul C. Swann, was filed, and the deposition of Paul C. Swann was taken as if upon cross-examination by the appellant. Swann in his affidavit stated in part: "* * * that for business purposes he is designated 'General Agent Traffic Department,' but his only duty and responsibility is the solicitation of freight traffic to be moved over the line of the defendant, Nashville, Chattanooga, and St. Louis Railway; that he is not authorized to make contracts for the defendant Railway, and his sole authority is the solicitation of business for it, as aforesaid; that defendant has no part of its line, or other property, in Jefferson County, except that it rents Room 220 in the Heyburn Building, in Louisville, Jefferson County, which is occupied by this affiant and used in the solicitation of business for the defendant; that the defendant has no other officer, agent or employee in Jefferson County, and had none at any time during any part of the year 1949, and that at no time during any part of said year has it transacted any business in Jefferson County, except the solicitation of traffic as aforesaid."
And further: "* * * that prior to the institution of this action this defendant complied with Kentucky Statutes Section 841 (now KRS
Swann's deposition disclosed that he was designated "General Agent Traffic Department," and was so listed in publications such as the Railway Company's time tables, station lists, and the Official Guide of Railways. He maintained an office in Louisville with three employees under him, but his sole duty was the solicitation of freight and he was without authority to assign cars to handle the freight traffic solicited or to make contracts for the appellee. The court sustained the motion to quash the sheriff's return, the appellant declined to plead further, and his petition was dismissed without prejudice. This appeal followed.
The sole question presented is one of venue. Section 73 of the Civil Code of Practice provides that an action against a common carrier for an injury to any person "must be brought in the county in which the defendant, or either of several defendants, resides; or in which the plaintiff or his property is injured; or in which he resides, if he resides in a county into which the carrier passes." Appellant was not injured in Kentucky nor is he a resident of Kentucky. If section 73 of the Code controls, the only question presented is whether or not the appellee resides in Jefferson County. Appellant first contends that section 72 of the Code, rather than section 73 applies. Section 72 provides that an action for a tort 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 in the county in which the tort is committed. Appellant rests his contention that section 72 of the Code controls on a statement in the opinion in Reed's Adm'x v. Illinois Central *619
Railroad Company,
It follows that section 73, rather than section 72, of our Civil Code controls. Harper v. Newport News M. V. R. Co.,
Does the appellee reside in Jefferson County within the meaning of section 73 of the Code? We think not. Paul C. Swann, on whom process was served, was merely a soliciting agent without authority to bind appellee by contract. His sole duty was to solicit freight traffic. The appellee maintained an office in Paducah where it operated a line of railway and where it had an agent with authority to make binding contracts. The agent there assigned cars for the transportation of the freight solicited by Swann, and controlled the movements of that *620
traffic. In view of these facts, it cannot be fairly contended that Jefferson County, rather than McCracken County, is the residence of appellee within the meaning of section 73 of the Code. Section 732 of the Civil Code of Practice prescribes the rules which shall prevail in construing the provisions of the Code. Subsection 32 reads: "The words 'residence,' 'reside,' mean, with reference to a corporation, its chief office or place of business." In Knight v. Pennsylvania R. Co.,
Surely Paul C. Swann, when the limited nature of his authority is considered, was not appellee's chief officer or agent in the state when the action was commenced. Jewell v. Louisville N. R. Co.,
Jurisdiction was upheld in the Makeever case, but it was held that there must be solicitation plus other activities, which are absent in the present case. To the same effect are Glass Coffee Brewer Corp. v. Embry,
Even if it be conceded that the transactions in Jefferson County were sufficient to constitute "doing business" in the sense that a foreign corporation incurs liability to service in this state, yet, under the facts of this case, appellee did not reside in Jefferson County within the meaning of section 73 of the Civil Code of Practice, that not being the county where its chief office or place of business was located or where its chief officer resided.
Judgment is affirmed.