Central Coal & Coke Company v. Orwig

• Decision Date: 05 December 1921
• Docket Number: 21
• Citation: 235 S.W. 390,150 Ark. 635
• Parties: CENTRAL COAL & COKE COMPANY v. ORWIG
• Court: Arkansas Supreme Court

235 S.W. 390

150 Ark. 635

CENTRAL COAL & COKE COMPANY v. ORWIG

No. 21

Supreme Court of Arkansas

December 5, 1921

Appeal from Yell Circuit Court, Danville District; A. B. Priddy Judge; affirmed.

Judgment affirmed.

James B. McDonough, for appellant.

1. The petition for removal should have been granted. The appellant is an inhabitant and resident of the Eastern District of Arkansas, within the meaning of the act of Congress. 4 Fed Stat. Ann. p. 838; 5 Id. p. 16; Id. p. 846; U. S. Stat. at Large, Vol. 36, p. 1101. Yell County, in which the suit was brought is, under the act of Congress, in the Little Rock Division of the Eastern District of Arkansas, and appellant could have been sued originally in the United States District Court of that division and district. The act of 1907, requiring a foreign corporation desiring to do business in this State to consent to service upon an agent etc., applies to Federal courts as well as State, and as a matter of law makes the corporation consent to be sued in the Federal courts. The act is valid. 108 Ark. 562. The words "inhabitant," "found" and "residence" are synonymous. 230 F. 968; 193 Id. 728; 145 U.S. 444; 27 Fed. Cas. 486. See also 48 F. 202; 29 F. 17; 6 Sawyer, 262; 45 F. 345: 57 Id. 529; C. & M. Dig., §§ 1825 to 1831 incl.; 48 F. 1; 179 Id. 569. A foreign corporation is "found" in the district, and has a residence therein, if it may be served in the district. 69 F. 704; 199 Id. 927; 7 Id. 139; 21 Id. 288; 39 Id. 290; 41 Id. 833; 49 Id. 297; Id. 884; 117 Id. 732; 179 Id. 556.

The residence of a corporation is any place where it has a service agent. 3 Thompson on Corporations, § 3014; 51 Mo. 308. The Legislature of the State has determined that the corporation may be sued in any county in the State, and appellant having consented thereto has therefore consented that it might be sued in the Federal court. 96 Am. Dec. 183; 9 N.H. 394; 40 N.J.L. 111; 42 Id. 490; 170 U.S. 100; 172 U.S. 602; 89 F. 121; 92 Id. 3.

The suit was brought in Yell County for the sole purpose of defeating the right of removal to the Federal court and was therefore fraudulent. 22 L. R. A. (N. S.) 1235.

2. The circuit court of Yell County was without jurisdiction to hear and determine the case. § 11, art. 12, Constitution; §§ 1825-1832, C. & M. Digest; § 1171 C. & M. Digest, and cases cited; Id. §§ 1164, 1165, 1174. To give a domestic corporation the right to be sued in its own county (C. & M. Dig. § 1171) and deny that right to a foreign corporation doing business in the State is to discriminate against the foreign corporation, in violation of the State Constitution and of § 1 of the 14th Amendment to the U. S. Constitution. The statute is void, 252 U.S. 60; 241 U.S. 329; 249 U.S. 522.

3. Non-expert witnesses may state facts only; they cannot give opinions as experts. 125 Ark. 86; 95 Id. 310; 19 Id. 533; 23 Id. 730; 1 Elliott on Ev. §§ 675, 676 and cases cited; 122 Am. St. Rep. 580.

4. It was improper and prejudicial to refer, in argument to the jury, to the witnesses of the defendant as a gang. 31 N.Y.S. 926; 82 Hun 349. The use of this word was reversible error. 61 Ark. 130; 82 S.W. 562; 80 Ark. 23; 63 Id. 174; 70 Id. 305; 180 S.W. 474. The reference to W. L. Leavy as an insurance agent, he not being a witness in the case, and there being no testimony that he was an agent of an insurance company was wrongful, harmful, and constituted reversible error, even though the court attempted to cure them. 80 Ark. 158; 87 Id. 461; Id. 515; 89 Id. 58; 104 Id. 1; 114 Id. 542; 131 Id. 6; L. R. A. 1915-A, p. 155, note; 196 S.W. 606; 104 Id. 384; 177 N.W. 217; 175 Id. 470; etc., etc.

5. The verdict is contrary to the clear weight of the testimony, and the fact that the trial judge overruled the motion for new trial ought not, in the light of the affidavit appearing in the addition to the bill of exceptions presented by the appellant, to be taken as a finding by the trial judge of a preponderance in favor of the plaintiff. 126 Ark. 427; 133 Id. 166; 136 Id. 45.

Wilson & Chambers and John W. Goolsby, for appellee.

On the question of removal, this court has frequently held contrary to appellant's contention. 129 Ark. 550; 98 Id. 507; 107 Id. 512. Appellant, being a Missouri corporation, has no residence in this State. 140 Ark. 135; 253 U.S. 325. Neither the plaintiff, a resident of Sebastian County, nor the defendant, a Missouri corporation, was a resident of the Eastern Federal District of Arkansas. That the act providing that an action may be brought against a foreign corporation in any county in the State is constitutional, has been settled by the decisions of this court. 140 Ark. 135.

OPINION

WOOD, J.

This is an action by the appellee against the appellant to recover damages for alleged personal injuries. The appellee alleged in substance that the appellant is a corporation doing business in Arkansas and operating a coal mine at Hartford; that appellee, on the 21st of July, 1920, while working in the mine, was injured by coming in contact with a wire charged with electricity, which wire, through the negligence of appellant, had not been insulated or protected in any way, but left exposed in a manner to be dangerous to the employees; that the appellee, without any fault or carelessness on his part, while engaged in the discharge of his duties, came in contact with the same, causing his injuries, which he set forth in detail, to his damage in the sum of $ 20,000, for which he prayed judgment. The appellant filed a petition and bond, which were in due form, for removal of the cause to the United States District Court. The trial court denied the petition, to which appellant duly excepted.

1. This presents the first question for our consideration which must be determined by the decisions of the Supreme Court of the United States. The question has been settled by the decisions of our own court and also by the decisions of the Supreme Court of the United States adversely to appellant's contention. St. L. S. & F. R. Co. v. Kitchen, 98 Ark. 507, 136 S.W. 970; C. R. I. & P. Ry. Co. v. Smith, 107 Ark. 512; Central Coal & Coke Co. v. Graham, 129 Ark. 550, 196 S.W. 940; Pekin Cooperage Co. v. Duty, 140 Ark. 135, 215 S.W. 715; Boston, etc. Mining Co. v. Montana Ore Co., 188 U.S. 632, 47 L.Ed. 626, 23 S.Ct. 434; Ex parte Wisner, 203 U.S. 449, 51 L.Ed. 264, 27 S.Ct. 150; In re Winn, 213 U.S. 458, 53 L.Ed. 873, 29 S.Ct. 515.

The petition for removal alleges, among other things, "that within the meaning of the removal act of Congress your petitioner has a venue residence both in the Eastern District of Arkansas and in the Western District of Arkansas, and may be sued in either district in the Federal courts thereof." It is further alleged that the appellant "has a service agent in the State of Arkansas as required by the laws of this State upon whom service of process may be had, and that under the law of Arkansas the appellant could be sued by the appellee in the United States District Court at Little Rock and also at Ft. Smith." Our statutes require a foreign corporation to designate its general office or place of business in the State and to name an agent upon whom process may be served (Sec. 1826, C. & M.). And also requires such corporation to consent that service of process may be had upon any agent of the company or upon the Secretary of State. (Sec. 1827, C. & M.)

These statutes prescribe the conditions upon which foreign corporations can do business in this State, and were not intended to, and do not, confer a local, State or county residence upon them. These statutes were intended to provide remedies for residents of this State against foreign corporations, or corporations that have no residence in and are not inhabitants of this State.

Sec. 11, article 12 of our Constitution as to foreign corporations authorized to do business in this State among other things provides: "As to contracts made or business done in this State, they shall be subject to the same regulations, limitations and liabilities as like corporations of this State." And section 1828 of Crawford & Moses' Digest provides among other things: "Such corporations shall be entitled to all the rights and privileges and subject to all the penalties conferred and imposed by the laws of this State upon similar corporations formed and existing under the laws of this State." But the above provisions do not make foreign corporations residents or inhabitants of this State in which they are authorized to do business.

Our statutes designating the agents and fixing the forums in which foreign corporations may be sued do not take away any of the rights guaranteed to foreign corporations under our Constitution. They relate only to the remedies provided for those who may have causes of action against them in this State. See American Hardwood Lbr. Co. v. Ellis & Co., 115 Ark. 524, 171 S.W. 899. "Foreign corporations have their legal existence and are located within the boundaries of the State under whose laws they are organized." Pekin Cooperage Co. v. Duty, supra. Neither the appellee nor the appellant was a resident of the Eastern Federal District of Arkansas where the action was brought. Since, therefore, the appellant was not a resident or inhabitant of the Eastern Federal District of Arkansas, but had its domicile or residence in a foreign State, it had no right to remove the cause of action under the removal acts of Congress. 5 Fed. Stat. Ann. p. 16, Sec. 28; 5 Fed. Stat. p. 486, § 51 (Judicial Code).

2. After the petition for removal of the cause was denied, the appellant answered and denied that the appellee was injured in the manner set forth in his complaint and also denied specifically the allegations of negligence contained therein and set up the...