Brandon v. Warmath

• Decision Date: 11 March 1955
• Parties: Arthur BRANDON, Jr., et al., Respondents. v. J. C. WARMATH et al., Petitioner. 2 McCanless 38, 198 Tenn. 38, 277 S.W.2d 408
• Court: Tennessee Supreme Court

Page 408

277 S.W.2d 408

Arthur BRANDON, Jr., et al., Respondents. v. J. C. WARMATH et al., Petitioner.

2 McCanless 38, 198 Tenn. 38, 277 S.W.2d 408

Supreme Court of Tennessee.

March 11, 1955.

Rehearing Denied April 7, 1955.

Adams & Adams, Humboldt, for petitioners.

Waldrop, Hall & Winningham and James D. Senter, Jr., Jackson, for respondents.

TOMLINSON, Justice.

Amco Feed Stores, Inc., is a foreign corporation which became domesticated by complying with the provisions of Chapter 13, Extra-Session of the Act of 1929 as modified by the 1932 Code wherein it is carried at sections 4118-4129. In accordance with the provisions of that Act Amco designated a named individual in Knox County as its agent for the service of process upon it. It also maintained an office, and had an agent, in Madison County.

The motor truck of this foreign corporation, so domesticated, was involved in a traffic accident on a public street or highway in Gibson County. Warmath, a resident of that county was allegedly injured thereby. He instituted this tort action in the law Court of Gibson County against this corporation by summons directed to the sheriff of Knox County where it was served on the corporation's aforesaid designated agent.

Amco filed its plea in abatement whereby it insisted that Gibson County was not a county of venue for the filing of this suit, and service of process 'had not been properly made' on Amco. As stated therein, this plea was founded on the fact that Amco did maintain an office, and had an agent, in Madison County, but none in Gibson County.

Plaintiff Warmath insisted that Gibson County was a proper county of venue because this 1929 Act provided that in case of a foreign corporation which had domesticated under this Act a venue for suits in transitory actions against it may be the county where the cause of action arose, Code Section 4126. Amco replied that the last sentence of 4126 excepted from the provisions of the 1929 Act those foreign corporations which were maintaining an office and agent in the State. Warmath's rejoinder is that these exceptions apply only to the kind or class of corporations mentioned in Code Section 4125.

The Circuit Judge overruled Amco's plea in abatement and proceeded to trial with the result that the jury returned a substantial verdict for Warmath. The Court of Appeals sustained the plea in abatement, reversed and dismissed the suit. This Court granted certiorari.

Code Section 4125 reads as follows:

'4125. Exceptions.--The provisions of this statute relating to the appointment of an agent upon whom process may be served, the filing of such designation with the secretary of state, or, in lieu thereof, providing for service of process upon the secretary of state, shall not apply to foreign corporations otherwise maintaining an office or agent in the state, such as railway, hydro-electric light or power, telegraph and telephone companies.'

This section is not dealing with venue. Its only provision is to except corporations falling within the class of railways, etc. mentioned therein from the requirement of appointing an agent upon whom process may be served, etc. Since Amco does not fall within that class of corporations, it is not excepted from the requirement of appointing some one in this state 'as its agent for the service of process upon it in all actions or suits brought against it in the courts of this state'. Code Section 4120. (Emphasis added.)

The section of the Act dealing with venue is carried in the Code at section 4126. That section reads as follows:

'4126. Venue.--The venue of all actions, suits or proceedings in case of service of process upon such designated agent, or, in lieu, upon the secretary of state, may be in the county in which the cause of action arose or accrued; or, in the county where the one to be served resides and the process is so served, except where the action is local in nature. In event of service on the secretary of state, he shall pursue the method prescribed by section 4124, et seq. In actions, suits or proceedings against foreign corporations otherwise maintaining an office or agent in the state, venue shall be as this Code provides.' (Emphasis supplied.)

Since Amco maintained an office and agent in Madison County a venue of the cause of action is not fixed by code section 4126, supra, in the county where the cause of action arose (Gibson County), but is fixed 'as this Code provides.' The Code did not provide that the mere arising of the cause of action in a given county would give the courts of that county venue for the maintenance of a suit thereon against a foreign corporation having an office and agent in another county. It follows that Gibson County was not a county of venue in this case at the time the suit was instituted.

Code Section 8644 provides that if an action of this character 'be brought in the wrong county, it may be prosecuted to a termination, unless abated by plea of the defendant'. It follows, therefore, that at the time Amco's plea in abatement with reference to the venue was filed this suit was lawfully pending in the law court of Gibson County with jurisdiction of that court over the person of Amco and over the subject matter of the suit.

Thirty days before Amco filed its aforesaid plea in abatement to the venue our General Assembly enacted Chapter 34 of the Public Acts of 1953. It is provided by that Chapter that in actions of this character against a foreign corporation of the character of Amco a county of venue may be the county 'in which the cause of action arose, and process may be sent to another county as in local actions.' In short, this statute created an additional county of venue in a case of this character. It is the contention of Warmath that it applies to this pending action; therefore, in any event, that the Court of Appeals was in error in sustaining Amco's plea in abatement to the venue.

This 1953 statute was held by this Court to be solely remedial in the case of Dowlen v. Fitch, 264 S.W.2d 824, 828, decided in February, 1953. The decision was rested upon the fact that the only purpose and effect of this statute is to provide an additional county, that is, an additional venue, in which a plaintiff injured by a transitory tort may seek redress for the injuries received. Thus, that Chapter 34 does no more than to provide an additional remedy for the redress of a wrong inflicted by reason of a tort transitory in nature.

In Dowlen v. Fitch, supra, this 1953 statute was invoked by the plaintiff as authority for bringing suit in a transitory tort action in the county where the accident occurred, though the defendant resided in a different county. The defendant insisted that this statute did not apply because the tort had occurred several months prior to the enactment of that statute. In rejecting that insistence this Court cited, and quoted from, numerous cases holding that statutes solely remedial were retroactive and applied 'to causes of actions which were in esse at the time of the effective date of' the Act. It referred to cases showing that one reason for this rule is that the State, having complete control over the remedies of its citizens in courts, may provide "new and additional remedies for a just right already in being".

In the case at bar Warmath's cause of action was not only 'in esse' at the time of the enactment of the 1953 statute, as in Dowlen v. Fitch, supra, but, in addition thereto, Warmath had already instituted his suit when that statute became law. No further steps, however, had been taken in the suit. Clearly, therefore, the determinative question here is whether a statute solely remedial in nature should be applied to an action pending at the time the statute was enacted. Amco insists that the 1953 statute cannot apply to a pending suit, and that to apply it would be to destroy a vested right of Amco.

Dowlen v. Fitch, supra, quoted with approval from the text of 50 American Jurisprudence, section 482, page 506, to the effect that a statute which only furnishes a new remedy, Chapter 34, Public Acts of 1953, "applies to all actions--those which have accrued or are pending and future actions." Probably that part of the quotation, as to pending actions, should not, per se, be considered conclusive here since the question of a pending action was not involved in Dowlen v. Fitch.

However, the question was involved in National...