Friedman v. Seaboard Air-Line Railway , 124 Ga. 472 ( 1905 )

EvaNS, J.

(After stating the facts.) The allegations of the petition sufficiently set out a contract and a breach thereof, as against a demurrer raising the sole question of venue. The plaintiff construed his own petition to state a cause of action arising ex contractu, and the court, adopting this construction, held that the defendant was not suable in Chatham county, and dismissed the action.

The Civil Code, §2334, provides that “All railroad companies shall be sued in the county in which the cause of action originated, by any one whose person or property has been injured by such railroad company, its officers, agents or .employees, for the purpose of recovering damages for such injuries; and also on all contracts made or to be performed in the county where suit is brought; any judgment rendered in any other county than the one in which the cause so originated shall be utterly void. But if the cause of action arises in a county where the railroad company liable to suit has no agent, then suit may be brought in the county of the residence of such company.” By the terms of this section, a railroad company must be sued in the county where the tort was committed, if the company has an agent in that county. So. Ry. Co. v. Johnson, 96 Ga. 655; Coakley v. So. Ry. Co., 120 Ga. 960. If the action is ex contráctil, then the venue is either the county where.the contract was made or the county where the final act of execution of the contract was to be performed. Unless we give this meaning to the words of the statute, “contracts made or to be performed,” they will not receive their ordinary signification. Uo question as to the meaning of so much of this section as relates to the venue of actions arising ex contractu seems to have been heretofore raised in this court-We have not been cited to a single case where a construction of this part of section 2334 was invoked. The case of Mitchell v. Georgia Railroad, reported in 68 Ga. 644, was a suit against the railroad company on a written contract for the shipment of live stock from Atlanta, in Fulton county, Ga., to Union Point, a station located in Greene county. The suit was brought in Greene county, where full performance of the contract was to be completed by delivery of the shipment to the consignee. The plaintiff offered an amendment to the petition, which was disallowed; and on an exception to the ruling of the trial judge refusing the amendment, Speer, J., on page 648, said: “Bailroad companies are liable to be sued not only in any county where the cause of action originated, but also on all contracts made or to be performed in the county where the suit is brought. The suit upon the written contract or upon the cause of action arising therefrom, as the contract was to be performed in Greene county, was properly brought in that county.” This decision was rendered before the amending act of 1892, but the only change made in the law by that act was to strike out the provision that railroad companies should be “liable” to suit in certain jurisdictions, and to introduce in its stead the requirement that railroad companies “shall” be sued, if at all, only in those counties wherein the filing of an'action is expressly authorized. In other words, while under the old law the right to sue in certain designated jurisdictions was permissive, the amending act made the choice of venue compulsory. We hold the clear import of the Civil Code, §2334, as applied to suits against railroad companies for breach of contract, to be that suit may be brought either in the county where the contract ■was entered into, or in the county where the final act of performance under the contract was to be consummated.

The petition alleged that the contract entered into by the railroad company was an undertaking to transport the cattle from Yidalia to Savannah, in Chatham county, and there deliver the same to the plaintiff, the person wrho made the contract. It follows that the suit for the breach of this contract was properly brought in the county where the delivery in good order was to be made, — where the contract was to be performed.

Judgment reversed.

All the Justices concur.