Brunk v. Ohio & Ky. Railway Co.

Opinion op the Court by Wm. Rogers Olay, Commissioner Affirming. Appellant, R. W. Brunk, delivered to appellee Ohio & Kentucky Railway Company at Cannel City, Ky., a lot of household goods to he shipped to appellant at Ashland, Boyd county, Ky. Two boxes containing a portion of the goods were lost in transit. Thereupon appellant instituted this action in the circuit court of Boyd county against appellees, Ohio & Kentucky Railway Company and Lexington & Eastern Railway Company, to recover the sum ■ of $210, the value of the goods- lost, alleging that the Ohio & Kentucky Railway Company undertook and agreed for itself and its connecting lines, including the Lexington & Eastern Railway Company, to transport said goods to Ashland, Ky., but that appellees violated their contract by failing to deliver the two boxes as agreed. Summons was had upon the Ohio & Kentucky Railway Company by services upon its agent at Cannel City, Ky., and upon the Lexington & Eastern Railway Company by service upon its agent at Lexington, Ky.; neither of the two companies having an agent in Boyd county, and each of the persons served being the agent of his company stationed nearest to Boyd county. Appellees each filed an answer in the nature of a plea to the jurisdiction, accompanied by a motion to quash the summons and the return thereon. Each pleaded, in effect, that it did not have a line of- railway extending to Ashland, Boyd county, Ky., or reside in that [307] county, and that the only contracts either had with appellant was to transport the goods in question over its line and deliver them to its connecting line, and that the liability of each under the contract of shipr ment ceased upon such delivery. A copy of the bill of lading containing the contract of shipment was filed. The trial court sustained the plea of each company to the jurisdiction, quashed the summons and return thereon, and dismissed appellant’s petition. It is the contention of appellant that section 73 of the Civil Code of Practice is applicable to this case. So much of that section as is necessary to consider is as follows: “Excepting the actions mentioned in section 75, an action against a common carrier, whether a corporation or not, must be brought in the county in which the defendant, or either of several defendants, resides, or in which the contract is made; or in which the carrier agrees to deliver the property.” As neither of the appellees resides in Boyd county, and the contract was not made in that county, the jurisdiction of the Boyd circuit court depends altogether upon the question whether or not there was an agreement on the part of appellees to deliver the property in Boyd county. It is pleaded by each of appellees, and not controverted by appellant, that neither had any such agreement with appellant, but inasmuch as the bill of lading, constituting the only contract of shipment, is filed in support of the pleas to the jurisdiction, it will be necessary to consider that instrument and determine from the provisions thereof whether or not there was an agreement to , deliver the goods in Boyd county. The bill of lading is in part as follows: “Received, Cannel City, 8-15, 1905, by Ohio & Kentucky Railway Company, in apparent good order, the packages (contents un [308] known) mentioned below, to be forwarded in like good order to R. W. Brunk, at Ashland, Kentucky, subject to conditions noted below. [Here follows a description of the articles.] ‘Conditions: * * * (2) That articles agreed to be transported to points beyond the lines of this company may be delivered to connecting lines for transportation to their destination, and that upon such delivery, the responsibility of this company shall cease except as to guaranty of the freight rate to be charged thereon. * * * (6) This contract is executed and accomplished, and the' liability of the common carriers thereunder terminates as to the forwarding carriers respectively on delivery to the next connecting carriers, and as to the delivering carriers of the goods or property at the station or depot of delivery,” etc. Counsel for appellant contends that the words, “To be forwarded in like good order to R. W. Brunk, at Ashland, Kentucky,” constitute an agreement on the part of the Ohio & Kentucky Railway Company and its connecting lines to deliver the goods at Ashland, Ky. It will be observed, however, that whatever agreement those words import is subject to the conditions noted below, and those conditions are that the articles may be delivered to connecting lines for transportation to their destination, and thereupon the responsibility of the Ohio & Kentucky Railway Company ceases, and furthermore, that the liability of the forwarding carriers ceases on delivery of the go'ods to the next connecting carrier, and that the liability of the delivering carrier ceases on delivery of the goods at the station or depot of delivery. It. is manifest, therefore, that there is a difference between a forwarding carrier and a delivering carrier; the former term applying to all carriers who [309] transport goods to the delivering carrier., and the latter to the carrier who actually delivers the goods at their destination. Keeping this distinction in view, and taking into consideration the fact that the contract provides that the goods may he delivered to connecting lines, and that the liability of each road is limited to its own lines, it is perfectly plain that the only place where either of appellees agreed to deliver the goods was at the point of its connection with the nest connecting line. The only carrier that agreed, if.it received the goods, to deliver them at Ashland, Ky., was the delivering carrier, the Chesapeake & Ohio Railway Company, but that company is not before the court, nor is it sought to hold it liable on the contract of shipment. As neither of appellees agreed to deliver the goods in Boyd county, it necessarily follows that the plea of each company to the jurisdiction of ■ the court was properly sustained. •Judgment affirmed.