Solomon v. Atlantic Coast Line Railroad

46 S.E.2d 369, 187 Va. 240, 1948 Va. LEXIS 217

• Court: Supreme Court of Virginia
• Decided: March 1, 1948
• Docket: Record No. 3263
• Status: Published

Opinions

Hudgins, C. J.,

delivered the opinion of the court.

Jennie Solomon filed a notice of motion in the Circuit Court of the city of Portsmouth, Virginia, against the Atlantic Coast Line Railroad Company, alleging that on the 31st day of August, 1946, she was a passenger on one of defendant’s trains travelling from a point in North Carolina to the city of Portsmouth, Virginia; and that en route she had, by reason of the negligence of the defendant, suffered serious bodily injuries for which she claimed damages in the sum of $10,000. To this notice defendant filed the following plea in abatement:

“The said defendant comes and says that this Court ought not to have or take any further cognizance of the action aforesaid of the said plaintiff, because the said defendant says that the supposed cause of action did not or any part thereof arise in the City of Portsmouth, but that supposed cause of action and every part thereof did arise in the State of North Carolina, and that at the time of the serving of the notice of motion in this cause the defendant did not have its principal office in the City of Portsmouth, but had its principal office then and ever since in the City of Richmond, Virginia.

“Wherefore it prays judgment whether this court can or will take any further cognizance of the action aforesaid.”

The trial court sustained the plea and dismissed the action. Plaintiff, in her petition for the writ of error, challenged the correctness of the ruling of the trial court on the plea.

The action to recover damages for personal injuries resulting from the negligence of another is a transitory action. Such an action against a natural person both at common law and under the statute may be brought in any jurisdiction wherein defendant may be .found and served with process. The venue of an action against a corporation is fixed by statute. The fact that defendant owes plaintiff that high degree of care that a common carrier owes to its passengers for hire does not affect the venue.

The plea in abatement is bad as it does not negative every ground of venue prescribed by statute. The pertinent provisions of the following sections of the Code of 1919 determine the venue of actions against a corporation in this jurisdiction:

Section 6049. “Any action at law or suit in equity, except where it is otherwise especially provided, may be brought in any county or corporation:

* * * * * * * *

“Second. If a corporation be a defendant, wherein its principal office is, or wherein its mayor, rector, president, or other chief officer resides.”

Section 6050. “An action or suit may be brought in any county or city wherein the cause of action, or any part thereof, arose, although none of the defendants reside therein.”

The failure of the plea to aver that the defendant’s president or other chief officer did not reside in the city of Portsmouth is a fatal omission. See Deatrick v. State Life Ins. Co., 107 Va. 602, 59 S. E. 489; Morgan v. Pennsylvania R. Co., 148 Va. 272, 138 S. E. 566; Seaboard Air Line R. Co. v. Bowden & Co., 144 Va. 154, 131 S. E. 245; Burks Pl. & Prac., 3d Ed., p. 107.

Defendant contends that plaintiff’s failure to state any specific objections to the plea violated Rule of Court 22 and for this reason the bill of exceptions should not be considered. We have held repeatedly that this is a salutary rule and requires that the ground of objection be stated with reasonable certainty in the trial court. There is no necessity to apply the rule where the character of the objection is perfectly patent. Evans v. Commonwealth, 161 Va. 992, 170 S. E. 756; Smith v. Commonwealth, 165 Va. 776, 182 S. E. 124.

The bill of exceptions is short and is in the following words and figures:

“And the plaintiff moved the Court to strike out said plea as bad on its face, and not showing any want of jurisdiction or want of venue in this Court, which motion was argued and overruled, and said plea held valid and the case dismissed by the court on January 27, 1947, to which ruling and action of the court, the plaintiff duly excepted. No evidence was taken in the case. That she was injured on this train when in North Carolina, en route to Portsmouth, Virginia.

“And the plaintiff presented this bill of exceptions in due time, which is signed and made part of the record this 13th day of March, 1947, after it duly appeared in writing that defendant had been given proper notice of the time and place of presenting the same.”

It is apparent from a reading of the plea that it is “bad on its face” as it failed to allege one essential element of a good plea in abatement. No additional statement or extensive argument is necessary to establish the obvious.

Reversed and remanded.

Gregory, Spratley and Staples, JJ., dissenting.