Guyan Motors v. Williams, 10219

• Decision Date: 07 February 1950
• Docket Number: No. 10219,10219
• Citation: 57 S.E.2d 529,133 W.Va. 630
• Parties: GUYAN MOTORS, Inc. v. WILLIAMS et al.
• Court: West Virginia Supreme Court

Page 529

57 S.E.2d 529

133 W.Va. 630

GUYAN MOTORS, Inc. v. WILLIAMS et al.

No. 10219.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 11, 1950.

Decided Feb. 7, 1950.

Syllabus by the Court.

Under Code, 56-1-2, a cause of action against a corporation for breach of contract arises in the county where the contract is made and breached, or in the county where substantial damage actually accrued as a result of the failure to perform such contract.

Bailey, Worrell & Bailey, Pineville, for petitioner.

Kingdon & Kingdon, Mullens, for defendants.

LOVINS, President.

This is an original proceeding in prohibition, instituted by Guyan Motors, Incorporated, a West Virginia corporation having its principal office or place of business in Logan County, hereinafter designated as 'petitioner', against Ruben Williams, hereinafter designated as 'defendant', and the Honorable D. M. Easely, Judge of the Circuit Court of Wyoming County, West Virginia. A single but somewhat difficult question is presented: Did a part of the cause of action arise in Wyoming County in the following circumstances:

On November 20, 1948, defendant, a resident of Wyoming County, purchased from petitioner at its garage in Logan County a Fraser automobile. On December 23, 1948, defendant, at the request of petitioner, delivered possession of such automobile to petitioner, who, for a valuable consideration, promised and agreed to '* * * inspect, test, service and repair the steering mechanism of said automobile which was * * * in a condition of 'stiffness' but was not known * * * to be in a defective or dangerous condition * * *.'

Notwithstanding the promise aforesaid, petitioner so negligently inspected, tested, serviced and repaired the steering mechanism of said automobile that the presence in said mechanism of hard and abrasive foreign substances was not discovered, nor were such foreign substances removed prior to the redelivery of said automobile to defendant. As a consequence of petitioner's failure to perform its promise, the steering mechanism of the automobile, while the same was being operated by defendant's wife in Wyoming County on January 13, 1949, locked and jammed so that the automobile was wrecked and totally demolished. Thereafter defendant instituted an action in assumpsit against petitioner in the Circuit Court of Wyoming County. The delaration therein filed, having alleged the foregoing facts, pleaded that defendant was damaged in the amount of five thousand dollars.

Contending that the contract was made and the breach thereof occurred in Logan County, petitioner filed a plea in abatement to defendant's action, thus challenging the jurisdiction of the Circuit Court of Wyoming County. Defendant interposed his demurrer to such plea in abatement, on the theory that the occurrence of substantial damage is a part of the cause of action in assumpsit within he meaning of Code, 56-1-2, reading, in part, as follows: 'An action * * * may be brought in any county wherein the cause of action, or any part thereof, arose, although none of the defendants reside therein, in the following instances: (a) When the defendant, or if more than one defendant, one or more of the defendants, is a corporation * * *.'

The demurrer having been sustained by the Circuit Court of Wyoming County, that court set the action in assumpsit for hearing. This proceeding, seeking to prohibit defendant from further prosecuting, and the Judge of said court from taking further cognizance of, the action, followed.

This proceeding is here on demurrer to the petition, in which the declaration filed by defendant in the action in assumpsit is set forth in haec verba. We therefore treat all facts well pleaded in said petition as being true, but we refrain from expressing any views upon the merits of the action in assumpsit.

This Court, in discussing the venue statute above referred to, has held that a cause of action generally consists of a duty owing by one person to another, and the violation or the breach of such duty. Jones v. Main Island Creek Coal Company, 84 W.Va. 245, 99 S.E. 462; Harvey v. Parkesburg Ins. Co., 37 W.Va. 272, 16 S.E. 580. See Conservative Life Insurance Co. v. Alexander, 114 W.Va. 451, 172 S.E. 520; State ex rel. Maynard v. Jarrett J. P., 90 W.Va. 180, 110 S.E. 568. The holding of this Court in Jones v. Main Island Creek Coal Company, supra, seems to accord with the general rule in other jurisdictions. State ex rel. Webster Mfg. Co. v. Risjord, 201 Wis. 26, 229 N.W. 61; Shelby Steel Tube Co. v. Burgess Gun Co., 8 App.Div. 444, 40 N.Y.S. 871; Ferguson v. Grottoes Co., 92 Va. 316, 23 S.E. 761.

In State ex rel. Maynard v. Jarrett, J. P., supra, a comprehensive definition of a cause of action is quoted from the opinion of Cleasby, B., delivered in the case of Durham v. Spence, L.R. 6 Exch. 46, as follows [90 W.Va. 180, 110 S.E. 569]: 'Now the cause of action must have reference to some time as well as to some place; does then the consideration of the time when the cause of action arises give us any assistance in determining the place where it arises? I think it does. The cause of action arises when that is not done which ought to have been done, or that is done which ought not to have been done. But the time when the cause of action arises determines also the place where it arises; for when that occurs which is the cause of action the place where it occurs is the place where the cause of action arises. I can not avoid the conclusion that a cause of action arises where that takes place which first makes a cause of action; the contract does not make a cause of action; but a cause of action does arise when and where the person...