
    Case 85 — PETITION ORDINARY
    May 3.
    Nashville, &c., Railroad Company v. Carrico.
    APPEAL FROM MARION CIRCUIT COURT.
    1. Pleading — Traverse.—In an action against a common carrier to recover damages for injury to live stock while being transported by it, a denial by defendant of knowledge or information sufficient to form a belief as to whether it injured the stock is not good.
    2. Venue of Action Against Common Carrier. — Where a contract made with a railroad company for the shipment of live stock provided for the transportation of the stock over the line of another company, which was to receive its proportion of the price of transportation, the former company must he regarded as having made the contract as the latter’s agent, and an action against the latter company to recover damages for .injury to the stock while being transported over its road may be brought in the county in which the contract was made by the former company.
    3. Service of process in such an action was properly had upon the defendant’s agent nearest the county seat of the county in which suit was brought, although in another county.
    HUGH P. COOPER for appellant.
    1. The trial court did not have jurisdiction of appellant. (Civil Code, secs. 58, 73, 78, 80, 419.)
    2. It was error to take from the jury, by peremptory instruction, the issues of fact.
    3. In the absence of allegation and proof of legislative authority the appellant could not lease, or be made liable for injuries occurring on the Western & Atlantic Railway.
    RIVES & SPALDING for appellee.
    1. As the contract of transportation was made in’ Marion County, suit on the contract was properly brought in that county. (Civil" Code, sec. 73.)
    2. The service of process was sufficient to bring appellant into court. (Civil Code, sec. 51, subsec. 4; Adams Express Co. v. Crenshaw, 78 Kv„ 136.)
   JUDGE LEWIS

delivered the opinion of the court.

This action was brought by appellee, Carrico, against the Louisville & Nashville Railroad Company and appellant, Nashville, Chattanooga & St. Louis Railroad Company, both being’ common carriers, to recover damages for injury to a car load of mules shipped at Lebanon, Marion County, Kentucky, under contract for safe delivery at Atlanta, Georgia.

The contract was made by appellee with the first-named company which undertook to transport the animals to Nashville, Tennessee, to be carried from there by the latter' company, which appears to either own or have in its possession and control a continuous line of railway to Atlanta. It is in substance alleged that the Nashville, Chattanooga & St. Louis Company agreed to transport appellant’s mules from Nashville to Atlanta, receiving therefor a proportion of the whole amount fixed in the contract with Louisville & Nashville Company for tlie whole distance, but by negligence of its agents in operating the train on which the animals were placed, they were greatly injured.

But that company did not, as required by the Civil Code in such case, deny appellee’s mules were, while being transported on its road, injured as alleged in the petition, but simply stated it did not have sufficient information to form a belief on the subject. Subsection 7, section 13, authorizes such traverse by a party only when facts alleged in an adverse pleading are not presumptively within his knowledge. But when, as here, it is the duty of a railroad company, by its managing officers, to know whether its trains have been operated properly or in such manner as to destroy life and property, a mere denial of sufficient knowledge or information to form a belief concerning the fact, does not amount to a traverse. The lower court therefore properly instructed the jury to find for the plaintiff, appellee, if it had jurisdiction to try the case at all.

The action having been dismissed as to the Louisville & Nashville Company, the question arises whether the Marion Circuit Court acquired jurisdiction of the Nashville, Chattanooga & St. Louis Company by simple service ■of process on its chief officer or agent in the county of Eulton, in which it operates one of its railroads. And that question depends upon construction of section 73, Civil Code, as follows : “ An action against a common carrier, whether a corporation or not, upon a contract to carry property, 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.”’

Appellant did not reside in the county of Marion, nor were the mules agreed to be delivered there. But it seems to us the contract in this case, having been made in Marion County by the Louisville & Nashville Railroad Company, acting as appellant’s agent, must, in meaning of that section, be regarded as made there by appellant itself. And, consequently, the Marion Circuit Court had jurisdiction of the person of appellant if the summons was served according to subsection 4, section 51, which provides that in an action brought pursuant to section 73, as was done in this case, “if a defendant operate a railroad it may be served upon defendant’s passenger or freight agent at, or nearest to, the county seat of the county in which the'action is brought.”

The record, in our opinion, shows existence of each of the conditions of jurisdiction of the Marion Circuit Court and validity of a service of summons prescribed by the Civil Code. And as there is no question made of the correctness of the judgment upon any other ground,, it must be affirmed.  