Lloyd v. Haines, 35 S. E. 611; Walker v. McNeil, 50 Pac.

518.

FRICK, J.

This is an action for damages for personal injuries sustained by respondent, arising out of alleged negligence on the part of appellant. The alleged negligence consisted in, and the evidence tended to establish, that appellant permitted a projection of coal or rock to exist in and to extend across the roof of the incline leading from the surface to the mine below, and in which appellant's coal cars were being operated in transporting coal, as mined from the mine, to the surface above. The incline was dark, and the cars were being operated at a speed stated to be from twenty to twenty-five miles an hour. It was respondent's duty to ride on or between two of a string of cars loaded with coal passing from the mine to the surface, and, in case anything was or became wrong on the trip up with any one of the train of cars, he was required to signal the operator at the surface by means of wires strung along the side of the incline at or near the roof to have the operator stop the cars. On the day of the accident the respondent was at his post of duty, standing in a stooping position on the projecting floors between two cars, and, something becoming wrong with one of the cars immediately after starting, he arose from his stooping position, and with what is called a "ringer," with which he was provided for the purpose, attempted to signal the operator while the cars were moving at the speed aforesaid, when his head came in contact with the sharp edge of the projection in the roof which extended downward about eleven inches from the face of the roof in the form of what may be called a "saw tooth," and he was thrown from the cars and sustained serious injuries. It further appeared that respondent was ignorant of the projection in the roof and that appellant knew, or, by the exercise of ordinary care as master, could have known, of it and the danger incident thereto. All acts of negligence were denied on the part of the appellant, and contributory negli gence and assumption of risk were pleaded. Upon substan

tially the foregoing issues and facts the jury found for respondent by their verdict, upon which the court entered judgment for respondent, from which this appeal is prosecuted.

One of the errors assigned arose as follows: It appeared from the complaint that the respondent was a non-resident of this state and a resident of Wyoming, and that the appellant was a foreign corporation, to-wit, a corporation of the state. of Wyoming. But it did not appear from the complaint that appellant had any place of business or office in this state, nor whether it carried on any business in this state or not. The appellant appeared in the action and filed a general demurrer, challenging the sufficiency of the complaint, in which one of the grounds of demurrer was that "the court has no jurisdiction of the subject-matter of the action." This demurrer was overruled, and the appellant answered, in which it set up as a defense facts showing that it was a foreign corporation with its principal place of business in this state at Salt Lake City, and that it had no place of business in Summit county, where the action was brought, and that the accident occurred and the cause of action arose in Wyoming. Before entering upon the trial on the merits, when a jury was about to be impaneled, the appellant, by its counsel, suggested its willingness to prove the facts last above stated; but the court held that it had jurisdiction of the subject-matter of the action and of the person of appellant-the latter, presumably upon the ground of its general appearance by filing a general demurrer to the complaint.

The first error assigned is the ruling of the court in respect to assuming jurisdiction. The alleged error is based upon section 1, c. 92, p. 76, Laws of Utah 1903, where it is, in substance, provided that transitory causes of action arising without this state in favor of nonresidents and against corporations shall be brought in the county where such corporation has its principal place of business. Assuming, for the purpose of this decision, that a foreign corporation is included within the provision referred to, did the court err in assuming jurisdiction of the action in view of the state of the record? The appellant certainly submitted itself to the juris

diction of the court by its appearance in filing a general demurrer in which it invoked the judgment of the court in respect to the sufficiency of the complaint. (Section 3334, Rev. St. 1898.) It did not appear from the complaint that appellant's principal place of business was not in Summit county, where the action was brought. It did appear therefrom, however, that the appellant was a foreign corporation, carrying on a business in a foreign state, and that the cause of action arose in such foreign state and in connection with its business. When the appellant appeared, therefore, neither the court nor any one else connected with the action was concerned in where its principal place of business was, or if, in fact, it had any in this state at all. Had it been a domestic corporation, it would have to be assumed as a matter of course that it had a place of business in some county in this state. Not so where it appeared from the complaint that the appellant was a foreign corporation and was carrying on business in the state where the injury occurred. The question, therefore, is: Did the court have jurisdiction of the subject-matter of the action? We think it did. It certainly is now beyond the pale of controversy that the district courts. of this state have general jurisdiction of the subject-matter of all transitory actions, to which class the case at bar belongs. In view of the numerous decisions under statutes like the one in question, there can now remain no serious doubt that this and similar statutes are enacted for the benefit of the defendant merely, and do not affect the jurisdiction of the subject-matter, and therefore may be waived and are waived by filing a general demurrer to the complaint, since to do so constitutes a general appearance. The courts, with rare exceptions, have held that when a statute provides that suits shall be brought in the county where the defendant resides, or, if a corporation be sued, where it has its principal place of business, it confers a privilege on the defendant merely which may be waived, and does not go to the jurisdiction. of the subject-matter. (Hearne v. De Young, 111 Cal. 373, 43 Pac. 1108; Kenney v. Greer, 13 Ill. 432, 54 Am. Dec. 439; Toledo W. & W. Ry. Co. v. Williams, 77 Ill. 354; Christian

v. O'Neal, 46 Miss. 669; Clarke v. Lyon Co., 8 Nev. 181; Ross v. Konor, 2 N. Y. Supp. 169, 49 Hun 610; McMinn v. Hamilton, 77 N. C. 300; Spicer v. Taylor [Tex. Civ. App.!, 21 S. W. 314; Fairbanks & Co. v. Blum, 21 S. W. 1009, 2 Tex. Civ. App. 479.) While the foregoing cases are not in strict harmony as to when and how the objection should be made by a defendant claiming the privilege, they all agree that it is but a matter of privilege which may be, and is, waived in case timely objection is not made. Neither do we assert that all the cases cited above are like the case at bar in the facts stated. In some of them the privilege did not exist but in all of them the doctrine is announced that the privilege is waived unless timely objection is made; and in nearly all it is held that a general appearance constitutes a waiver.

The federal courts likewise hold to the same view in cases where suits against defendants are to be brought in the district of their residence, and hold firmly to the rule that a general appearance is a waiver of the privilege, as may be seen from the following among numerous other decisions: Tex. & P. Ry. Co. v. Cox, 145 U. S. 593, 12 Sup. Ct. 905, 36 L. Ed. 829; Interior Constr. Co. v. Gibney, 160 U. S. 217, 16 Sup. Ct. 272, 40 L. Ed. 401; St. Louis, etc., Ry. Co. v. McBride, 141 U. S. 127, 11 Sup. Ct. 982, 35 L. Ed. 659. This court also substantially announced the same doctrine in the following, among other cases: White v. Rio G. W. Ry. Co., 25 Utah 357, 71 Pac. 593; Sanipoli v. Pleasant V. Coal Co. (Utah), 86 Pac. 865. In the last case cited it is pointed out that the objection to the jurisdiction generally cannot be reached by a demurrer in which the ground is stated in the form merely that the court has not jurisdiction of the subject-matter, or that it has no jurisdiction. This may be so if all the facts showing a want of jurisdiction appear from the face of the complaint. Otherwise it must be raised in another form. This rule, we think, is both logical and just. If a defendant desires to insist on the privilege given him of being sued in a particular place or county, he should appear specially for that purpose only, and

make the objection by motion, and, if necessary, support the same by proper evidence, and not appear generally and then raise the question as a defense to the action. It is not a defense in a material sense, and therefore after a general appearance comes too late.

The court therefore did not err in its ruling, and this assignment must be overruled.

The next assignment is based on the action of the court in overruling an objection to a question asked by counsel for respondent of a witness at the trial. The proceedings in respect to the question, as disclosed by the record, are as follows: "I will ask you whether or not from your judgment of the cars, the position of the rope runners on the cars and the height to which-or rather the distance to which that lip of coal extended downward from the top of the roof of the slope-whether or not it extended so low that a person five and one-half feet high, standing upright on the cars, or between the cars, would come in contact with the lip of coal? (Mr. Willis: Object as incompetent, irrelevant, and immaterial; and, further, it is calling for a conclusion of the witness. By the court: He may answer. Mr. Willis: Exception.) What would you say if he stood upright and he was five and one-half feet high, whether his head would come in contact with that lip of coal? A. Yes, sir." It may be conceded that, if this multiform question and the answer thereto constituted the whole evidence on the subject, the objection might be meritorious. By having recourse to the evidence, however, it appears that the question and answer thereto was but a mere summing up of the evidence upon that subject. The height of the incline between the floor and the roof, the height of the floor of the cars from the rails lying on the floor of the incline, the height of the respondent, the extent of the projection downward from the face of the roof of the incline, and all the facts in detail in respect thereto were fully testified to and explained either before or after the question was propounded. It thus appears from the record that the answer and question neither added to nor modified anything. True, it was objectionable in form, and