Ex parte Townsend

• Decision Date: 04 October 1991
• Citation: 589 So.2d 711
• Parties: Ex parte James Edward TOWNSEND, Jr., Jimmy Davenport, and Roy Price Heald. (Re James Edward TOWNSEND, Jr., et al. v. GENERAL MOTORS CORPORATION, et al.) 1901528.
• Court: Alabama Supreme Court

Page 711

589 So.2d 711

Ex parte James Edward TOWNSEND, Jr., Jimmy Davenport, and Roy Price Heald (Re James Edward TOWNSEND, Jr., et al. v.GENERAL MOTORS CORPORATION, et al.)

1901528.

Supreme Court of Alabama.

Oct. 4, 1991.

Leon Garmon, Gadsden, for petitioner.

D. Alan Thomas of Huie, Fernambucq & Stewart, Birmingham, for respondentsStuart Leach and General Motors Corp.

George P. Ford and Richard M. Blythe of Ford & Hunter, P.C., Gadsden, for respondentsDavid J. Nolen, Jan Kilgore Veal, Eddie L. Taylor, Eugene L. Harrell, Mack Smith and Eugene T. Greeson.

G. Thomas Yearout, Birmingham, for respondentJoe Money Machinery Co., Inc.

Tom Burgess of London, Yancey, Elliott & Burgess, Birmingham, for respondentPak-Mor Mfg. Co., Inc.

SHORES, Justice.

James Edward Townsend, Jr., Jimmy Davenport, and Roy Price Heald petition this Court for a writ of mandamus to the Honorable Stuart Leach, judge of the Circuit Court of Jefferson County, directing him to vacate his order of June 13, 1991, transferring a case from the Jefferson Circuit Court to the Etowah Circuit Court.

"We note at the outset that mandamus is a drastic and extraordinary writ to be issued only where there is (1) a clear legal right in the petitioner to the order sought; (2) an imperative duty upon the respondent to perform, accompanied by a refusal to do so; (3) the lack of another adequate remedy; and (4) properly invoked jurisdiction of the court."

Ex parte Edgar, 543 So.2d 682, 684(Ala.1989).

On July 24, 1990, petitioners Townsend, Davenport, and Heald were injured in the City of Gadsden, Etowah County, when the brakes failed on the garbage truck on which they were riding.On March 15, 1991, they filed a complaint in Jefferson Circuit Court against General Motors Corporation, Pak-Mor Manufacturing Company, Inc., and Joe Money Machinery Company, Inc., claiming damages under the Alabama Extended Manufacturers Liability Doctrine and for breach of warranty; and against David J. Nolen, Jan Kilgore Veal, Eddie L. Taylor, Eugene L. Harrell, Mack Smith, and Eugene T. Greeson claiming damages based on negligence and/or wanton conduct.

On April 25, 1991, defendants Nolen, Veal, Taylor, Harrell, Smith, and Greeson filed a motion for change or transfer of venue from Jefferson County to Etowah County.On May 6, 1991, defendant Pak-Mor Manufacturing, filed a motion to dismiss, or, in the alternative, to transfer the case to Etowah County.The trial court on June 10, 1991, transferred the case to Etowah Circuit Court.

Defendants Nolen, Veal, Taylor, Harrell, Smith, and Greeson are residents of Etowah County.The plaintiffs, Townsend, Davenport, and Heald, are residents of Etowah County.The motor vehicle accident in question occurred in Etowah County.The investigation was done in Etowah County by Etowah residents, and the physical evidence surrounding the accident, including the vehicle, is located in Etowah County.Each of the plaintiffs received initial medical treatment in Etowah County, and the paramedics attending the plaintiffs after the accident reside in Etowah County.Even the wrecker driver lives in Etowah County.

The petitioners argue that Jefferson County is a proper forum because their witnesses are residents of, or regularly do business in, Jefferson County: employees or agents of Pak-Mor Manufacturing and Joe Money Machinery; Dr. Chi-Tso Huang and other medical personnel who treated Heald, Townsend, and Davenport; Heald's psychiatrist, Dr. Mallory Miree; and petitioners' expert witnesses.

General Motors is a foreign corporation doing business in Jefferson County.Pak-Mor is a foreign corporation not registered in Alabama, but it does business in Alabama by and through its distributor, Joe Money Machinery.Joe Money Machinery is a business entity with its place of business in Jefferson County, Alabama.

Where is the proper venue in a personal injury action against Joe Money Machinery, a domestic corporation?Under Alabama Code 1975, § 6-3-7, a domestic corporation may be sued in any county in which it does business by agent or was doing business by agent at the time the cause of action arose.We are told that Joe Money Machinery was doing business by agent in Jefferson County at the time this suit was filed and at the time the cause of action arose.However, this is an action for damages based on personal injuries.Section 6-3-7 contains the following proviso with respect to actions based on personal injuries: "all actions against a domestic corporation for personal injuries must be commenced in the county where the injury occurred."The injury occurred in Etowah County.Therefore, under the provisions of § 6-3-7, Etowah County is the only proper venue as to a domestic corporation in this personal injury action.

What is the proper venue as to Pak-Mor Manufacturing and General Motors, each of which is a foreign corporation with its principal place of business outside the State of Alabama?

Venue as to foreign corporations was the subject of Amendment 473(proclaimed ratified April 1, 1988), which amended Article XII, § 232 of the Alabama Constitution of 1901.In pertinent part, that amendment provides: "Any foreign corporation ... may be sued only in those counties where such suit would be allowed if said foreign corporation were a domestic corporation."

Thus, insofar as venue is concerned, defendants General Motors and Pak-Mor may be sued only in those counties where a domestic corporation may be sued.Thus these two defendants are subject to the proviso in § 6-3-7 requiring that an action based on personal injuries be brought (against a domestic corporation, and now, by virtue of Amendment 473, against a foreign corporation) in the county where the injury occurred.

The Alabama constitution, as amended byAmendment 473, makes venue the same for domestic and foreign corporations and requires that they be treated identically for venue purposes.Ex parte Southern Ry., 556 So.2d 1082(Ala.1989).The result in a case such as the present one, this case being one based on personal injuries, was stated in Ex parte Newell, 569 So.2d 725, 728(Ala.1990):

"All actions against a domestic [or foreign] corporation for personal injuries must be commenced in the county where the injury occurred or in the county where the plaintiff resides if such corporation does business by agent in the county of the plaintiff's residence."

What is the proper venue as to the individual defendants?

All of the individual defendants are residents of Etowah County.Section 6-3-2(a)(3) controls venue where individuals are sued in a personal action:

"All other personal actions, if the defendant or one of...