Eberle v. Dyer Const. Co.

• Decision Date: 03 April 1979
• Docket Number: No. 47621,47621
• Citation: 598 P.2d 1189,1979 OK 49
• Parties: Edward Richard EBERLE, Appellee-Cross-Appellant, v. DYER CONSTRUCTION COMPANY, Appellant, Belger Cartage Service, Inc., Cross-Appellee, Fort Smith Structural Steel Company, Cross-Appellee.
• Court: Oklahoma Supreme Court

Page 1189

598 P.2d 1189

Edward Richard EBERLE, Appellee-Cross-Appellant, v. DYER CONSTRUCTION COMPANY, Appellant Belger Cartage Service, Inc., Cross-Appellee Fort Smith Structural Steel Company, Cross-Appellee.

No. 47621.

Supreme Court of Oklahoma.

April 3, 1979.

Rehearing Denied Sept. 10, 1979.

An Appeal from the District Court of Creek County; Charles S. Woodson, District Judge.

Appeal from judgment entered on jury verdict for plaintiff in the District Court of Creek County. Appellant/Co-defendant Dyer Construction Company, an Oklahoma Corporation with principal offices located in Tulsa County, Oklahoma, raises issue of lack of proper venue because of jury verdict in favor of Co-defendant foreign corporation licensed to do business in Oklahoma against whom venue was properly laid. Appellant also attacks sufficiency of evidence of causation.

JUDGMENT OF TRIAL COURT AFFIRMED.

Donald G. Hopkins, Tulsa, for appellant, Dyer Const. Co. Best, Sharp, Thomas & Glass, Joseph M. Best, Joseph A. Sharp, Tulsa, for cross-appellee, Belger Cartage Service, Inc.

Jack B. Sellers, Sapulpa, for appellee.

SIMMS, Justice:

Appellee commenced an action in the District Court of Creek County, Oklahoma, to recover damages for alleged personal injuries sustained while performing labor on new construction which Dyer Construction was completing for appellee's employer, Unit Rig, at a location in Tulsa County.

Evidence at trial indicated that immediately before appellee sustained the injury complained of, he was doing some welding inside a newly completed building, but a brisk wind blowing through an entryway interfered with the operation of his welding torch. Appellee momentarily ceased work to close the doors to the entrance.

The two sliding doors to the entryway operated on wheels affixed to the bottoms of the doors, which ran on a track. The doors could be closed by sliding the two doors together along the tracks. The doors were supported at the top by an overhead door with track along which the sliding doors could traverse. However, the overhead door could be raised and lowered so as to permit a large crane to enter and exit the building. To the bottom of the overhead or "crane" door was affixed the track and support for the sliding doors beneath it.

The "crane" door was open at the time of the accident. Although specifications for the doors indicated the presence of a simple safety device intended to prevent the lower doors from being closed while the "crane" door was raised, appellant was, nevertheless, able to slide the lower doors along the tracks in order to close the lower doors. Lacking a support from the overhead door, the sliding door fell on appellee, causing his serious multiple injuries.

Appellee was a resident of Creek County where the action was brought. Named as defendants in the suit were Dyer Construction Company, the general contractor, an Oklahoma Corporation with principal place of business in Tulsa County; Dyer's Employee, Wilson; Fort Smith Structural Steel Company, manufacturer of the door, an Arkansas Corporation; Belger Cartage Service Co., a Missouri Corporation licensed to do business in Oklahoma, and its employees Pruitt and Mizener, who installed the doors.

Various motions to quash predicated upon improper venue were filed, heard by the trial court and overruled. The demurrer to the petition filed by Fort Smith Structural Steel was sustained and it was dismissed from the lawsuit. No individual defendants are parties to this appeal. This then left two corporate defendants to defend before the jury, Dyer, an Oklahoma Corporation with principal offices in Tulsa County, and Belger Cartage, a foreign domesticated corporation.

A verdict was returned in favor of appellee and against Dyer only. The jury found in favor of Belger Cartage. Motions for new trial were timely filed, presented, and overruled.

Dyer appeals alleging that venue in Creek County was improper and additionally that the trial court erred in overruling the demurrer to the evidence as to the element of causation.

Appellee, on his cross-appeal, urges the trial court erred in sustaining Ft. Smith's demurrer and in refusing to submit the case against Belger Cartage to the jury on the theory of manufacturer's product liability. Appellee concedes, however, that no useful purpose would be served by reversing the ruling of the trial court on any theories advanced in his cross-appeal should this Court affirm the trial court on the issues of venue and causation.

Appellant Dyer insists that venue in this case could be properly laid only in Tulsa County as appellee is the only party to the proceedings with residence in Creek County where the case came on for trial.

Appellant relies heavily on Thornton v. Woodson, Okl., 570 P.2d 340 (1977), which was decided upon the provisions of 12 O.S.Supp.1976, § 187. Thornton is distinguishable from the case at bar, for here venue is predicated on the provisions of 12 O.S.1971, § 134, and 18 O.S.1971, § 471.

Venue as to domestic corporations is prescribed by 12 O.S.1971, § 134, which reads:

"An action, other than one of those mentioned in the first three sections of this article, against a corporation created by the laws of this state, may be brought in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside, or be summoned, or in the county where the cause of action or some part thereof arose, OR IN ANY COUNTY WHERE A CODEFENDANT OF SUCH CORPORATION CREATED BY THE LAWS OF THIS STATE MAY PROPERLY BE SUED." (E.A.)

Venue as to Dyer is therefore dependent upon proper venue over its co-defendant foreign corporation, Belger Cartage.

As to foreign corporations licensed in Oklahoma such as Belger Cartage, Art. 9, § 43, Okl.Const., provides:

"Every foreign corporation shall, before being licensed to do business in the State, designate an agent residing in the State; and service of summons or legal notice may be had on such designated agent and such other agents as now are or may hereafter be provided for by law. Suit may be maintained against a foreign corporation in the county where an agent of such corporation may be found Or in the county of residence of plaintiff or in the county where the cause of action may arise." (E.A.)

Furthermore, 18 O.S.1971, § 471, provides:

"Any foreign corporation, doing business in the State of Oklahoma, and any person now or hereafter having any cause of action against such corporation, arising on contract, tort, or otherwise, may file suit in any county of the State of Oklahoma where the plaintiff resides or where said corporation has its principal place of business, or has property, or in any county where said corporation has an agent appointed upon whom service of summons or other process may be had." (E.A.)

Appellant Dyer does not quarrel with the proposition that a resident corporation may be sued where venue is proper as to a co-defendant. Our venue statutes as to foreign corporations licensed to do business in Oklahoma clearly indicate that venue in actions against foreign corporations such as Appellant Belger Cartage may lie where the plaintiff resides.

Dyer insists, however, that venue became retroactively improper at the moment the jury exonerated their co-defendant, Belger the foreign corporation.

In support of this position, Dyer emphasizes a line of Oklahoma cases holding that where there are multiple defendants and proper venue depends upon the presence of one defendant in the same litigation, not only must the averments of the petition show that a valid joint cause of action exists as to the defendants for whom venue is correct, but Proof at trial must sustain the averments or the action must be dismissed as to other defendants for lack of proper venue. Fisher v. Fiske, 96 Okl. 36, 219 P. 683 (1923); Sinor v. Hart, Okl., 383 P.2d 669 (1963); Wellman v. Novak, Okl., 392 P.2d 377 (1964); Bill Hodges Truck Co. v....