Bill Hodges Truck Co. v. Williams, 42469

• Citation: 470 P.2d 310
• Decision Date: 26 May 1970
• Docket Number: No. 42469,42469
• Parties: BILL HODGES TRUCK COMPANY, Inc., a Corporation, Ernest Baze, an individual, and Transport Insurance Company, an insurance corporation, Plaintiffs in Error, v. Edwin WILLIAMS, a minor, by and through his father and next friend, Raymond B. Williams, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 310

470 P.2d 310

BILL HODGES TRUCK COMPANY, Inc., a Corporation, Ernest Baze an individual, and Transport Insurance Company, an insurance corporation, Plaintiffs in Error, v. Edwin WILLIAMS, a minor, by and through his father and next friend, Raymond B. Williams, Defendant in Error.

No. 42469.

Supreme Court of Oklahoma.

May 26, 1970.

Syllabus by the Court

Where, in a joint-liability action against two or more defendants, venue of such action in the county in which it is brought depends entirely upon the validity of the action as against only one of such defendants, and the other defendant or defendants appear specially and object to the venue of the action and the court's jurisdiction of them and, after such objection is overruled by the court, file an answer or answers without praying for any affirmative relief, it develops at the trial that the plaintiff has not proved a valid cause of action as against the defendant upon whom venue depends, the trial court has no jurisdiction of the other defendant or defendants, and should sustain a demurrer to the evidence, or a motion for a directed verdict, if made by the defendant upon whom venue depends and dismiss the action as against the other defendant or defendants for lack of jurisdiction of them.

Appeal from the District Court of Tulsa County; Raymond W. Graham, Trial Judge.

Action for damages arising out of injuries sustained in Okfuskee County, Oklahoma, brought in Tulsa County, the county of the plaintiff's residence, against an individual resident of Cleveland County, Oklahoma, an Oklahoma corporation having its principal office and place of business in Oklahoma County, Oklahoma, and a foreign insurance corporation, with all of the defendants being served with summons in Oklahoma County. The defendants appeared specially and objected to venue of the action and the court's jurisdiction of them, and, after the overruling of such objections, filed answers without praying for any affirmative relief. Trial to a jury resulted in a verdict and judgment for the plaintiff. The defendants appealed to this court following the overruling of their motion for a new trial, which included their objections to venue and jurisdiction. Judgment reversed and cause remanded to trial cort with directions to dismiss the action as against all of the defendants.

Best, Sharp, Thomas & Glass, Joseph M. Best, Joseph A. Sharp, Tulsa, for plaintiffs in error.

Palmer, Shepherd, Maner & Armstrong, Thomas L. Palmer, Richard V. Armstrong, Tulsa, for defendant in error.

LAVENDER, Justice:

The action in which this appeal arises was brought in the District Court of Tulsa County, Oklahoma, for damages arising out of personal injuries allegedly sustained by the plaintiff, in Okfuskee County, Oklahoma, on October 16, 1963, as the result of the combined negligence of two of the three defendants.

According to the petition, the plaintiff is a resident of Tulsa County, Oklahoma, and his action is against a motor carrier for hire, licensed as such under the laws of the State of Oklahoma (Bill Hodges Truck Company, Inc., a corporation created under the laws of the State of Oklahoma, with its principal place of business in Oklahoma City, Oklahoma County, Oklahoma), one of its truck drivers (Ernest Baze, a resident of Oklahoma County, Oklahoma), and the insurance company that issued the liability insurance policy required by the provisions of 47 O.S.1961, § 169 as a condition precedent to the issuance of the motor carrier's certificate of convenience and necessity, or permit (Transport Insurance Company, a corporation organized and existing under the laws of the State of Texas, and licensed to transact, and actually transacting, insurance business within this state).

The petition alleges that the plaintiff's damages resulted from negligence of the motor carrier's truck driver while acting within the scope of his employment and authority in the unloading of a truck which was then under his control and which was owned by the motor carrier and was then being used in its operations as a motor carrier, combined with negligence on the part of the motor carrier and other of its employees in the loading of the truck with the cargo involved, and that, under the provisions of the above-cited statute, the defendant insurance carrier is jointly liable with the motor carrier to make compensation for his injuries.

Summons was issued to the Sheriff of Cleveland County, Oklahoma, for the truck driver and was served on him, personally, at his residence in that county. Summons was issued to the Sheriff of Oklahoma County, Oklahoma, for all three defendants, and was served upon the truck driver at the motor carrier's place of business in Oklahoma City, and upon the motor carrier by serving its registered agent in Oklahoma City, and upon the foreign insurance corporation by serving the State Insurance Commissioner at his office in Oklahoma City. No question is raised concerning the manner in which either summons was served upon the defendants.

Appearing specially, the defendants pleaded that venue of the action was not in Tulsa County and that, therefore, summons could not, validly, be issued to any other county for any of them and the District Court of Tulsa County did not acquire jurisdiction over any of the defendants. That special plea was overruled by the trial court.

The defendant motor carrier and the individual defendant filed an answer, which was not verified at the time it was filed, in which they renewed their plea of lack of venue and jurisdiction, and, in addition to a general denial of the material allegations of the plaintiff's petition, pleaded contributory negligence if they were negligent, which they specifically denied. The plaintiff replied to that answer by way of a general denial.

The insurance carrier filed a separate answer in which it renewed its plea of lack of venue and jurisdiction, admitted filing its liability insurance bond with the Corporation Commission of the State of Oklahoma, in which it promised to pay, upon behalf of the defendant, Bill Hodges Truck Company, Inc., any sum not exceeding $5,000 for which that defendant might be held liable as a result of its operations as a motor carrier, and pleaded that its liability is conditioned upon liability upon the part of said Bill Hodges Truck Company, Inc., and does not exist until the motor carrier is adjudged to be liable, and specifically denied that it had any liability toward this plaintiff.

Trial to a jury resulted in a verdict in favor of the plaintiff.

The defendants' plea of lack of venue and jurisdiction was again raised in their motion for a new trial, which was overruled.

The plaintiff's first witness testified that, on October 16, 1963, and for some time prior thereto, he had been construction superintendent for a construction company that on that date was building concrete overpasses for Interstate Highway 40 over U.S. Highway 75 about eight miles west of Henryetta, Oklahoma; that his company had leased some heavy beams, timbers and poles to be used in the falsework for the forms for the concrete work, and he had arranged with Bill Hodges trucking company to haul the materials to the construction site; that one load had been unloaded late in the evening of October 15th, and another load arrived early the following morning, October 16th, on a truck belonging to the trucking company and being driven by the defendant, Ernest Baze; and that the plaintiff, an employee of the same construction company, had been injured while that load was being unloaded from the truck next to the first load.

The plaintiff next called the defendant, Ernest Baze, as a witness, obviously for the sole purpose of showing an employee-employer relationship between him and the defendant motor carrier. He testified that he then was employed by Bill Hodges Truck Company as a truck driver, on an hourly basis; that he had been employed by Bill Hodges Truck Company since 1957 and, on October 16, 1963, was employed by Bill Hodges Truck Company as a truck driver, on an hourly basis; and that, on that date, had hauled the particular load in question as a part of his duties as such employee.

On cross-examination, he testified that the defendant Bill Hodges Truck Company, Inc. had not been incorporated until early in 1965; that he had worked for the corporation after its incorporation, but, prior to that time, and on October 16, 1963, was working for W. W. Hodges doing business as Bill Hodges Truck Company; and that, on October 16, 1963, he was not working for the corporation. On redirect examination, he testified that, on October 16, 1963, the corporation did not own the equipment that he was operating on that date, but did purchase it from Bill Hodges at the time of the incorporation; and that the corporation's office and yards are at the same location that Bill Hodges had been.

Plaintiff's next witness was another employee of Bill Hodges Truck Company, Inc., but his position with the company was not disclosed. He testified that he went to work for Bill Hodges Truck Company on October 6, 1958, and was working for that company on October 16, 1963; that the name of that company was W. W. Hodges doing business as Bill Hodges Truck Company, and it was owned by Bill Hodges; that Bill Hodges Truck Company, Inc. was incorporated on January 2, 1965, and, since that date, he has been employed by the corporation; that W. W. Hodges was the owner, and manager, of the business on January 1, 1965; that Harold Hodges, who had been an employee of W. W. Hodges prior to January 2, 1965, became president of the corporation on that date; that the corporation purchased a part of the rolling stock, including the truck-tractor that pulled the load in question herein, from W. W. Hodges and continued in business at the same location, but did not purchase any real estate or buildings from him; that, prior to incorporation, the business was operated under an...