Toppins v. E. T., Va. & Ga. Railroad

| Tenn. | Sep 15, 1880

McFarland, J.,

delivered the opinion of the court.

The plaintiff brought this action in the circuit court of Washington county to recover damages resulting from the death of her husband, which she avers was caused by the wrongful acts or omissions of the defendant or its agents. The declaration avers that the defendant is a railroad corporation, owning and operating a railroad from Chattanooga to Bristol, with its principal office at Knoxville, in Knox county, and that the accident which caused the death of the plaintiff’s husband happened in or near the company’s machine shops at Knoxville. The defendant’s attorney moved the court to dismiss the cause upon the ground that the circuit court of Washington county had no jurisdiction, hut the court overrule 1 the motion, being of opinion that a motion to dismiss was not the proper mode to raise the question. A demurrer was thereupon filed, making the question that the action could not'' be brought in the county of Washington. This demurrer -ivas sustained and the suit' dismissed, and the plaintiff has áppealed.

Tire argument is,'that although the action is transitory, and, both by the priciples of the common law as well as by our statute, follows the-person of the defendants, yet, as a corporation is not supposed to.. be-\xlsewhere than at its principal office, suit cannot be brought or process served upon it elsewhere, except in these cases exprieoslv- authorized by our statute. Conceding the general principio to be as stated, and waiving question whether the objection has been taken in the proper form, we proceed to consider the question. The statutes upon which the question depends are as follows, to-wit: In an article in the Code, devoted to the matter of process on corporations, we have the following :

Sec. 2831. “Service of process on the president or other head of a corporation, or, in his absence, the cashier, treasurer or secretary, or, in the absence of such officers, any director of such corporation shall be sufficient.”

Sec. 2832. “If neither the president, cashier, treasurer or secretary reside within the State, service on the chief agent of the corporation residing at the time in tbe county where the action is brought shall be deemed sufficient.”

Sec. 2833. “ If the action be brought in the county in' which the corporation keeps its chief office, the process may be served on any one of the foregoing officers in the absence of those named before him.”

Sec. 2834. “ When a corporation, company op-"individual has an office or agency in any county other than that in which the principal resides,-'the service of process may be made on any,--agent or clerk employed therein in all actiopk'^rowing out of or connected with the busine@s-'of the office or agency.”

' This-4ast'-ijamed'’section is in accord with sec. 2811, in relation to the counties in which actions shall be brought, to-wit: “When a corporation, or company,, orin dividual has an office in any county for the' ttfáñg-action of business, actions growing out of'or- connected with the business of that office or agency, may be brought in the county in which such office or agency is located.” These are the provisions of the Code taken from previous acts. They leave but little doubt as to their meaning. They show' that when a corporation, company or individual has an office or agency in a county other than that in which the corporation or company has its chief office or in which the individual resides, suit may be brought in such county, and process may' be served on any agent or clerk employed in said office, provided the action be connected with or grows out of the business of that office or agency; in all other cases, it may be inferred, the suit should be brought where the principal of the corporation is located. Such was the law as it stood previous to-the act of 1859-60, ch. 89, which remains to be considered. The first section (T. & S. Statutes, 2834a) is-as follows: “ That sections 2831, 2832, 2833 and 2834 (of tbe Code) be so amended that hereafter when a corporation, company or individual has an officer or-agency, or resident director in any county other than that in which the chief officer or principal resides, the service of process may be made on any agent or-clerk employed therein in all actions brought against said company, growing out of the business of, or connected with said company or principal’s business.”' See. 28346: “ The provisions of this act shall only apply to cases where the action is brought in such-counties as such agency, resident director or office is-located.”

It is true these sections do not in terms profess to change sec. 2811, in regard to the county in which actions may be brought, but relates to the person-upon whom the process -may be served. Still, the county in which the action may be brought depends' upon the question as to who is the proper person upon whom the process is to be served. If the process is must served on the principal officers, then the action must be brought in the county of the chief office; if the process may be served upon an officer.- or agent in another county, then the action may be brought in such other county, for it cannot be supposed that an action must be brought in the county of the principal office, and yet process served in-another county, and, besides; the second section negatives any such idea; so that, in authorizing process ta be served in certain cases upon officers or agents of the corporation in a county other than the county of its chief office, it must have been intended to authorize the action to be brought in such other county. The question then recurs, in what cases does sec. 2834a authorize actions to be brought in a county other than the county of the principal office'? The language is, “ in all actions brought against said company, .growing out of the business of, or connected with said company or principal’s business.” It is argued that this means growing out of or connected with the business ■of the principal at that office or agency — that it was ■only intended to allow the action in such cases. The •difficulty in adopting this construction is, that such was the law as it stood before, under the provisions ■of the Code before referred to, and to so construe this last named section would be to render it nugatory. The purpose to amend the sections of the Code is clearly expressed, and we must give effect to the change. The only effect we can give is to adopt the plain meaning of the language used, that is, the suit may. be allowed in all cases where it is brought ■against the company, growing out of or connected with its business, that is to say, in all cases. In •other words, giving parties the right to sue the company in any county where it has an office, agency or resident director. The word “ officer ” in the section probably was intended to mean “office.” The entire section was very inartificially drawn.

This seems to us the proper construction. The question was not considered in the case of Lamhreth & Co. v. Clarke & Brown, 10 Heis., 32, although the-language of Judge Nicholson seems to imply the contrary. The case, as it appears, was decided on other-grounds, rendering a decision on this point unnecessary.

Ve may add, that if the right to bring an action in a county other than that of the principal office be confined to cases growing out of or connected with the agency of some other county, it may well be doubted whether actions for torts, accidents to persons or property, could be brought elsewhere than in the county of the principal office, for such cases cannot strictly be said to grow out of or be connected with the business of any particular agency. Yet we think it has been the universal rule to bring these actions in the county where the injury occurred. The true construction of the statute is not that the action lies alone in such county, but that' it lies in any county where the company has an office or agency.

The judgment will be reversed and cause remanded.