Waechter v. Atchison, Topeka & Santa Fe Railway Co.

TAGGART, J.

Appeal from an order denying defendant’s motion for change of place of trial. Action to recover the value of a trunk lost by plaintiff while traveling as a passenger on defendant’s railway.

Plaintiff's ticket was for a round trip from Norfolk, Virginia to San Francisco, California, and return, with stopover privileges. The trunk was checked at Santa Barbara for Norfolk, Virginia, on the return trip, and, as alleged by the complaint, was transported by the Southern Pacific Company to Los Angeles, where it was delivered to defendant and by the latter negligently lost and destroyed in transit.

[72]

The complaint alleges defendant to be a corporation organized and existing under the laws of the state of Kansas, and operating a line of railroad .from Los Angeles, California, to Chicago, Illinois. The affidavit of the general manager of the defendant filed with the demand for change of place of trial admits the residence of the defendant to be Kansas, but avers that its principal place of business in the state of California is, and, for a long time prior to the commencement of this action, has been, in the city of Los Angeles, county of Los Angeles, state of California; that it is not now and never has been in Santa Barbara county, and that no part of its railway lies in that county. Upon this showing the defendant demanded that the place of trial of the action be changed from Santa Barbara county, which was designated by the plaintiff in her complaint, to Los Angeles county.

Defendant’s contention is that it has a right to have the motion granted by virtue of section 16 of article XII of the constitution of the state, which is as follows: “A corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases. ” It is contended that this section is made to apply alike to foreign and domestic corporations by virtue of the provisions of section 407 of the Civil Code, and that it follows from the absence of allegation in the complaint that the contract was made, or to be performed, or that the obligation or liability arose or the breach occurred in Santa Barbara county, and it being made to appear by the affidavit of defendant’s general manager that its principal place of business in the state of California is situated in Los Angeles county, that defendant is entitled to have the action tried in the latter county.