Opinion
No. 32782.
June 14, 1937. Suggestion of Error Overruled July 19, 1937.
1. VENUE.
Where suit was properly brought against defendant employer in county where it did business, codefendant employee had no right to have suit removed to county of employee's residence.
2. CORPORATIONS.
A corporation which operated superpower line and motorbusses could, under statute, be sued in any county where part of its power line extended for wrongful death of person struck by bus in another county, as against contention that statute was applicable only to suits arising out of corporation's transmission of power (Code 1930, section 496).
3. CONSTITUTIONAL LAW. Corporations.
A statute authorizing suit against public utility corporation in any county wherein corporation had any part of its line did not deprive foreign corporation of equal protection of law, where statute applied equally to individuals and corporations, both domestic and foreign (Code 1930, section 496).
APPEAL from the circuit court of Lawrence county. HON. HARVEY McGEHEE, Judge.
Green, Green Jackson, of Jackson, and C.E. Gibson, of Monticello, for appellants.
The lower court was without territorial jurisdiction or venue of this cause.
The right of a defendant, whether individual or corporate, to be sued in the proper venue and territorial jurisdiction is a valuable and substantial right, and which will not be denied upon a strained or doubtful construction of any statutory provision. Thus, the general rule is stated that the right given to a defendant to be sued in the county of his residence is a valuable right.
67 C.J. 97.
Most of the states have statutes similar to our own, which provide that a citizen of the state can be sued only in the county of his residence, unless a joint defendant resides in another county.
67 C.J. 101, 102 and 103; Section 129, Code of 1930; Chapter 7, Art. 2, Code of 1930; State v. Superior Court of Okanogan County, 198 P. 744, 116 Wn. 122; Campbell v. Triplett, 74 Miss. 367.
Unless there was territorial jurisdiction or venue in the Circuit Court of Lawrence County, Mississippi, as to the Mississippi Power Light Company, then there is no doubt but that there was no venue or territorial jurisdiction of James A. Bennett, the individual defendant.
The action herein was based upon the alleged negligent operation of an automobile bus, substantially similar to all other automobiles in its manner of operation. We are conscious that Section 496 provides that actions against power corporations may be brought in any county wherein any portion of the line may be, but this is a motor transportation line over the highways of the State of Mississippi, and therefore is confined to "in any county in which any part of such railroad, express line or route, steamboat way, power, super-power, telephone or telegraph line or motor transportation line or route may be." That is to say, there is no portion of the route whereover this line runs in Lawrence County, and therefore being a transportation operation, no venue thereasto may be claimed therefor. If it be claimed that by reason of the ownership being in a power company, then that would fall within the condemnation of the rule hereinafter adverted to as a violation of the Constitution. As against an individual or a domestic corporation, the venue must be in the county of the residence or where the cause of action accrued. And this question may be raised by plea in abatement.
Arnette v. Smith, 142 So. 478, 165 Miss. 53, 145 So. 638; Bank v. Pettey, 164 So. 316; Trolio v. Nichols, 160 Miss. 611, 133 So. 208; Section 4140, Code of 1930; Batton v. McDonald, 131 So. 880, 159 Miss. 322; Lewis v. Francher, 111 Miss. 656, 71 So. 997.
All parties being residents of Hinds County, where the cause of action accrued, that here at issue is, may this suit be brought in Lawrence County when no part of the transportation line whereon the accident happened is within that county? We say not.
Sandford v. Dixie Construction Co., 128 So. 887, 157 Miss. 626; Masonite Corp. v. Burnham, 164 Miss. 840, 146 So. 292; Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677; 9 Fletcher Cyc. Corp., sec. 4357, page 141; Wytheville Ins. Co. v. Stultz, 87 Va. 629, 13 S.E. 77.
Here, the Mississippi Power Light Company admittedly is engaged in divers separable and distinct types of business, and in this particular case, the operation of the automobile bus is in no way connected with the operation of a power line or a super-line in Lawrence County, Mississippi. The bus transportation operation is found in so far as this suit is concerned wholly and only within the City of Jackson, First Judicial District, Hinds County, Mississippi.
Firemen's Fund Ins. Co. v. Cole, 152 So. 872.
It is, therefore, apparent from the doctrine laid down by the line of authorities above that when a foreign corporation has been domesticated in this state to the extent of appointing a resident agent for the service of process, pursuant to Sec. 4140, Code of 1930, it can only be sued in the county in which such resident agent is domiciled or in which the cause of action accrued. As is patent on the face of the pleadings, if a cause of action has accrued to the plaintiff herein, it necessarily did so in Hinds County and not Lawrence County.
The inescapable conclusion is that the Circuit Court of Lawrence County has not territorial jurisdiction over the defendant, Power Company, and the venue was improper. Applying the line of authority cited above (construing Secs. 495, 4140 and 4163, Code of 1930) to the facts in instant case, it is obvious that such cause of action as the plaintiff may have could only be maintained in Hinds County.
Should the statutes above be construed differently so as to allow the defendant herein to be sued in Lawrence County when the cause of action accrued in Hinds and the defendant's principal office and resident agent are located there, then this defendant would not be on the same footing with domestic corporations. In adopting the present rule as laid down in Sandford v. Dixie Constr. Co., 157 Miss. 626, our Supreme Court had in mind the doctrine enunciated by the Supreme Court of the U.S. in Power Mfg. Co. v. Saunders, 71 L.Ed. 1165, holding that in such matters a statute discriminating against foreign corporations would be in contravention of the "equal protection of the law" clause of the Fourteenth Amendment of the Federal Constitution.
18 Fletcher Cyc. Corp., sec. 8652, page 157; 17 Fletcher Cyc. Corp., sec. 8396, page 263; L. N.R. Co. v. Gaston, 54 L.Ed. 542; Hanover Fire Ins. Co. v. Carr, 71 L.Ed. 372; Southern R. Co. v. Greene, 54 L.Ed. 537; State v. L. N.R. Co., 97 Miss. 35, 51 So. 918; Sandford v. Dixie Const. Co., 157 Miss. 626.
Since the defendant in the present case had fully qualified under the statutes by appointing a resident agent who was domiciled, with their principal offices in Jackson, Hinds County, and since such cause of action as has accrued to plaintiff did so in Hinds County, it is obvious that the venue is improperly laid and the Circuit Court of Lawrence County had no territorial jurisdiction over the person of the defendant to hear and determine this cause of action. It was, therefore, proper for the court to have sustained defendants' special plea to the venue and jurisdiction and abate and dismiss the declaration.
Archibald v. Miss., etc., R. Co., 66 Miss. 424, 6 So. 238.
If, however, the statutes do not sustain the construction which we earnestly urge demonstrates that there was no jurisdiction in the Circuit Court of Lawrence County, Mississippi, then we respectfully submit, with deference, that to confer venue and territorial jurisdiction upon the Circuit Court of Lawrence County, Mississippi, would be in contravention of the Federal Constitution.
Metropolitan Casualty Co. v. Brownell, 294 U.S. 583, 79 L.Ed. 1072; Power Mfg. Co. v. Saunders, 274 U.S. 490, 71 L.Ed. 1165; Kentucky Finance Corp. v. Paramount Auto Exch. Corp., 262 U.S. 544, 67 L.Ed. 1112, 43 Sup. Ct. 636; Hanover F. Ins. Co. v. Harding, 272 U.S. 494, 71 L.Ed. 372, 47 Sup. Ct. 179, 49 A.L.R. 713; Guinn v. U.S., 238 U.S. 347, 59 L.Ed. 1340, 35 Sup. Ct. 926, L.R.A. 1916A, 1124.
The peremptory instructions should have been given to both of the defendants.
Vann v. Tankersly, 164 Miss. 748, 145 So. 642; 42 C.J. 890, sec. 592; Meridian Coca-Cola Co. v. Watson, 161 Miss. 108, 134 So. 824; Hall v. Caughran, 160 Miss. 571, 134 So. 576; McDonald v. Moore, 159 Miss. 326, 131 So. 824.
The court erroneously refused to permit the defendants to elicit testimony from plaintiffs to show why this suit was filed in the Circuit Court of Lawrence County, Mississippi, when all of the parties and the witnesses resided in Hinds County, Mississippi, and the cause of action here asserted occurred and accrued in Hinds County, Mississippi.
1 Wigmore on Evidence (2 Ed.), 584, sec. 284; Merritt v. New York, etc., R. Co., 38 N.E. 447.
Patterson Hobbs, of Monticello, and Roy Arnold, of Jackson, for appellees.
Turning directly to the question of territorial jurisdiction or venue, attention is respectfully directed to Section 495, Code of 1930.
Plummer-Lewis Co. v. Francher, 111 Miss. 656, 71 So. 907.
In the Plummer-Lewis Case, the court recognized at the outset that "the venue of civil actions generally is fixed by Section 707, Code of 1906, `in the county in which the defendant or any of them may be found, except where otherwise provided, and except actions of ejectment and actions of trespass on land.' Sections 708, 709, 710 and 711 (now sections 496, 497, 498 and 499, Code 1930) provide for the venue of actions in cases that are described in Section 707 by the phrase `except where otherwise provided.' The defendant in this case does not come within the excepted class of defendants mentioned in Sections 708, 709, 710 and 711, nor is this an ejectment suit, or action of trespass on land."
Indianola Cotton Oil Co. v. Crowley, 121 Miss. 262, 83 So. 409; Tchula Commercial Co. v. Jackson, 147 Miss. 296, 111 So. 874; Pan-American Petroleum Corp. v. Pate, 157 Miss. 822, 126 So. 480.
Section 496, Code 1930, does not require that process must be served upon the named defendant or defendants within the county where the action is commenced. In other words, it does not require that the named defendant or defendants must be found there, and as to this, the failure of the statute to so require necessarily means in the special cases therein contemplated and provided for that where suit is brought under the statute in the proper venue, process may be issued for and served upon the defendant or defendants wherever service may be had upon them.
Sandford v. Dixie Constr. Co., 157 Miss. 626, 128 So. 887; Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677.
In reference to the question of territorial jurisdiction or venue, appellants have repeatedly emphasized the fact that the Power Company has a resident agent under Section 4140, Code 1930, residing at Jackson, First Judicial District of Hinds County, Mississippi. Under the Sandford case, it has been pointed out that the designation of a resident agent by a foreign private corporation domesticates such corporation for the purposes of suit and process.
As to the character of "railroad, express, steamboat, power, super-power, telegraph or telephone corporations," contemplated by Section 496, Code 1930, it seems clear that the statute has reference to public service corporations, to public utilities.
Plummer-Lewis case, 111 Miss. 656.
Section 4140, Code 1930, applies to "every domestic corporation" and "every foreign corporation," but appellees respectfully submit that compliance with the statute by a foreign public service corporation or a foreign public utility corporation does not change or transform such foreign public service or public utility corporation into a foreign private corporation, within the meaning and intent of the Sandford case, and does not domesticate such corporation for the purposes of suit and process so as to make Section 495, Code 1930, apply to such a corporation to the exclusion of Section 496, Code 1930. When the last quotation from the Sandford case is paraphrased as hereinbelow set out, appellees submit that an accurate statement of the effect of a foreign public service corporation or a foreign public utility corporation designating a resident agent under Section 4140, results, to-wit: "We must hold, therefore, that, by the new statute of 1928 (now section 4140, Code 1930), it was the intention, and it has the effect, when a foreign public service corporation or a foreign public utility corporation has complied with it, to place the said foreign public service corporation or foreign public utility corporation in regard to venue in transitory actions in exactly the same attitude as a domestic public service corporation or a domestic public utility corporation, and that its effect is to domesticate the said foreign public service corporation or foreign public utility corporation for the purposes of suit and process — although for that purpose only. That such a construction is fair and just is obvious, and that it squares with every constitutional principle and requirement is likewise obvious, and being obvious needs no further elaboration."
With the foregoing quotation in mind, it necessarily follows, where, as here, the Power Company has designated a resident agent, that under Section 496, Code 1930, it is subject to the same venue and rights as a domestic public service or public utility corporation, and that it has been accorded the same venue and rights in this case is clear.
Sections 7115-7130, Code 1930.
There is on the record now before the court a vital and fatal admission by demurrer that the Power Company is a "power corporation," and also a "super-power corporation," within the meaning and intent of Section 496, Code 1930, and that it owns, maintains, and operates a "power line or route, and also a super-power line or route, in and through Lawrence County." In view of the record admission referred to above, appellees submit that it is not necessary to make any further inquiry. Such an admission, upon which the appellants elected to stand, and on which they stand before this court, meets the requirements of Section 496, Code 1930, with the result that the Circuit Court of Lawrence County had territorial jurisdiction or venue of this action.
Gulf Refining Co. v. Cleveland Trust Co., 108 So. 158; Boll v. New York Harlem R.R. Co., 33 Misc. Rep. 42, 68 N.Y.S. 139; 12 C.J. 770; Washington ex rel., etc. v. Superior Court of the State of Washington, 289 U.S. 361, 77 L.Ed. 1256.
Attention is again directed to Section 496, Code 1930, and the fact that the statute reads "Actions against any railroad, express, steamboat, power, super-power, telegraph or telephone corporation." Appellees submit that the word "actions" means transitory civil actions generally, including that on account of which this appeal is now pending before the court.
Section 1394, Code 1930.
Appellants have strenuously endeavored to force the territorial jurisdiction or venue of this action under Section 495, Code 1930, and have submitted many citations with that in view. With deference to them, however, appellees confidently rely upon Section 496, Code 1930, as the governing and controlling statute, supplemented by the other statutes and supported by the citations hereafter set out.
Louisville, etc., R. Co. v. Saucier, 1 So. 511; Archibald v. Miss., etc., R. Co., 66 Miss. 424, 6 So. 238; Clark v. Louisville N.R. Co., 158 Miss. 287, 130 So. 302.
In conclusion, as to the question of venue, appellees deny that they have admitted, and they do not now admit, that the Power Company is engaged in divers separable and distinct types of business. As repeatedly pointed out, the Power Company is admittedly a "power corporation, and also a super-power corporation, within the meaning and intent of Section 496, Code 1930," and the statute mentioned prescribes the venue in this action.
Appellants take the view that no negligence was shown. Appellees take the view that this question was well controverted, and the jury was the best judge of the facts.
Summerville v. Keeler, 165 Miss. 244; Woods v. Franklin, 151 Miss. 635; Kuffman Co. v. Samuels, 148 Miss. 871; Sternberg Dredge Co. v. Screws, 166 So. 754; Snyder v. Campbell, 145 Miss. 287; Hall v. Cauglin, 160 Miss. 571.
If appellees had a legal right to sue in Lawrence County, that is, to bring this action in the Circuit Court of said county, and if said court and county had jurisdiction of any of the parties or subject matter hereto, and it certainly had, as we have hereinbefore shown, then we submit that it is wholly unreasonable, irrelevant and incompetent for defendants, appellants herein, to attempt by insinuation and innuendo to infer that plaintiffs, appellees, herein, brought their action in Lawrence County, Mississippi, for some imaginary ulterior reason.
To require a plaintiff to make or give an explanation or reason as to why a suit is begun in a particular court, when it is not shown wherein such an explanation or reason is material to the issues involved, would be equal to letting down all bars and inviting the defendants to prejudice, and inflame and influence the minds of the jury against the plaintiffs.
Appellees therefore deem it sufficient to say that if a right may be asserted under the law in a prescribed way, and in a prescribed venue, and it is so asserted, it necessarily follows that any inquiry as to why one pursues the course which the law provides, has no place in a judicial inquiry, particularly in the trial of a case on its merits.
Argued orally by Forrest B. Jackson, for appellant, and by Roy Arnold, for appellee.
Charles Lowe, while crossing a street in the city of Jackson, was struck and killed by a bus owned by the Mississippi Power Light Company, then being operated by James A. Bennett, its employee. The action is by the father, mother, and the brothers and sisters of Charles Lowe against the power company and Bennett for damages caused them by his death.
Bennett is a citizen of Mississippi, residing in the city of Jackson, in which city all of the appellees also live. Service of process on the Mississippi Power Light Company was obtained by service thereof on Henry B. Sargent, who lives in Jackson, Miss., and who has been designated by the company as its agent for the service of process on it. The venue of the action was challenged by the Mississippi Power Light Company as to it, and Bennett requested the court to change the venue to Hinds county, wherein he resides, both of which were overruled. If these rulings were wrong, the judgment of the court below must be reversed.
The Mississippi Power Light Company is a Florida corporation with its principal place of business at Jackson, Miss., from which it distributes gas and electricity over a considerable area of territory; its electricity is distributed over a super-power line owned and operated by it, extending into Lawrence county, Miss. It is also engaged in transporting passengers for hire over the streets of Jackson, Miss., by means of motorbusses.
The venue chosen by the appellees is that for suits against an individual or corporation owning and operating a super-power line provided by section 496, Code of 1930, which is as follows: "Actions against any railroad, express, steamboat, power, super-power, telegraph or telephone corporation, or against individuals owning, managing, operating or controlling a railroad, express line or route, steamboat, power, super-power, telephone or telegraph line, or against any corporation or individuals owning, managing, operating or controlling a motor transportation line for the conveyance of passengers, freight or express, for hire, over the highways in the State of Mississippi, may be brought in any county in which any part of such railroad, express line or route, steamboat way, power, super-power, telephone or telegraph line or motor transportation line or route may be."
If the suit was properly brought against the Mississippi Power Light Company, Bennett was without the right to have it removed to the county of his residence. In support of their contention that section 496 does not here apply, the appellants say that the Mississippi Power Light Company is a corporation having three distinct characters: (1) That of a distributor of electricity; (2) that of a distributor of gas; and (3) that of a common carrier of passengers within the city of Jackson; and that Lawrence county is the appropriate venue only for actions against the Mississippi Power Light Company which arose in connection with the distribution by it of electricity over its super-power lines. In support of this contention they cite 9 Fletcher, Cyc. Corp., section 4357, where the author says: "A corporation, having two or more characters with the venue not the same, should be sued in that venue appropriate to the character involved in the action, e.g., where it is a banking and also an insurance corporation." What the author is there referring to is venue determined by the character of the cause of action sued on, and not venue determined by where the corporation may be found doing business. This clearly appears from Wytheville Ins. Co. v. Stultz, 87 Va. 629, 13 S.E. 77, the only case cited in support of the text, wherein a corporation doing both a banking and insurance business was sued on an insurance policy in a jurisdiction designated by a statute for the venue of suits on insurance policies.
The venue fixed by section 496, Code of 1930, is that where the corporation may be found owning, operating, or controlling certain characters of public utilities. The statute covers all suits against such a corporation, and contains no language indicating that it is limited to causes of action which arose out of or are connected with activities in aid of the public utility, and there is nothing in the statute when construed alone or in connection with others that would justify us in interpreting it so as to so limit it. The statute applies equally in all respects to individuals and both domestic and foreign corporations, and therefore is not subject to the appellants' criticism that it deprives foreign corporations of the equal protection of the law.
None of the other assignments of error justify a reversal of the judgment of the court below, and present only questions fully covered in our past decisions.
Affirmed.