Harger v. Oklahoma Gas & Electric Co.
| Decision Date | 06 December 1937 |
| Docket Number | 4-4738 |
| Parties | HARGER v. OKLAHOMA GAS & ELECTRIC COMPANY |
| Court | Arkansas Supreme Court |
Appeal from Franklin Circuit Court, Ozark District; J. O. Kincannon Judge; affirmed in part and reversed in part.
Reversed and cause remanded.
Lyman L. Mikel, J. E. Yates, George A. Hurst, Kelsey Norman, Alfred K. Lee and Henry Warten, for appellant.
Hill Fitzhugh & Brizzolara, for appellee.
This appeal is prosecuted from a judgment of the Franklin circuit court setting aside that part of a jury's verdict which found that appellee was liable to appellant in the sum of $ 50,000 to compensate personal injuries sustained by appellant through the negligent conduct of appellee's servants.
In April, 1936, appellant, alleging joint liability, filed his complaint in the Franklin circuit court, naming as defendants W. H. Heald and C. H. Loveland, trustees for the Southwestern Telephone Company; Ira Hoffstatter, a resident of Franklin county, and Oklahoma Gas & Electric Company, appellee herein. It was alleged that Hoffstatter was an employee of the trustees of the telephone company, and that in the course of his employment he was in the performance of duties for said trustees in and about the operation, control and management of the telephone lines and properties of the telephone company trustees in Franklin county; that the trustees maintained in Altus and Denning, in Franklin county, a telephone system with its wires stretched on poles along the streets and highways in said towns and in the rural communities served by it; that the Oklahoma Gas & Electric Company owned an electric line running through Altus and Denning, and maintained an electric line and power system in said county, and that the current so generated was carried over the streets of said towns and along the highways and along wires stretched on poles; that appellee's electric wires crossed over the wires of the telephone company; that the telephone wires were damaged and became dangerous to persons walking along said highway, and that Ira Hoffstatter, acting for the trustees, made certain repairs on said wires, but carelessly and negligently performed his work, and left said equipment in a dangerous and unsafe condition, and that appellant was injured by the defendants' negligence.
Summons was issued out of the Franklin circuit court and served on Hoffstatter in Franklin county. Summons was also issued by the clerk of Franklin circuit court and served upon the trustees. The clerk of the Franklin circuit court then issued a summons, directed to the sheriff of Sebastian county, against the Oklahoma Gas & Electric Company, and the return of the sheriff shows that the summons was served by delivering a copy to W. S. Van Sickel, "general manager, in charge of appellee's place of business in Fort Smith."
Appellee filed a general demurrer. It did not, in the demurrer, object to the jurisdiction of the court, but insisted that the complaint did not state facts sufficient to constitute a cause of action. Before the demurrer was ruled on, appellee filed its answer.
The court sustained the motion of the telephone company to quash service, and dismissed as to it. The cause was then tried as against the appellee and Hoffstatter.
After the jury had retired, but before it had returned its verdict, appellee filed a protest against any judgment being rendered against it unless the jury should also find that Hoffstatter was liable. There was a verdict against the Oklahoma Gas & Electric Company alone. Appellee then filed a motion in arrest of judgment. The court sustained this motion, set aside the verdict, and dismissed the complaint. Appellant thereupon filed a motion to set aside the order sustaining the motion in arrest of judgment and a motion to set aside the order and judgment dismissing the action against appellee. The court overruled appellant's motion.
The important question to decide is whether service on the Oklahoma Gas & Electric Company, obtained in the manner shown infra, was sufficient to give the Franklin circuit court jurisdiction of the person of appellee corporation in Franklin county. The return of the sheriff of Sebastian county was:
"On the 18th day of April, 1936, I duly served the within writ by delivering a copy and stating the substance thereof, to the within named Oklahoma Gas & Electric Company, a corporation, by delivering a true copy to W. S. Van Sickel, general manager, in charge of its place of business in Fort Smith, Arkansas, as I am hereby commanded."
Appellant's position is that service, at least prima facie, having been secured under the provisions of § 1152 of Crawford & Moses' Digest; and Van Sickel, being agent for service in Sebastian county only, appellee was not required to answer in Franklin county. The fact that a demurrer was filed, followed by an answer, in a situation where no valid judgment could have been rendered because the summons was without legal compulsion, is urged by appellant as conduct which gave the trial court jurisdiction. It is further urged that, thereafter, relief was not available to appellee under the provisions of §§ 1176 and 1178, for the reason that these statutes do not extend to corporations.
If appellant should concede that the service obtained in this case could only issue under the provisions of § 1152, and that the return made by the sheriff of Sebastian county was conclusive of the proposition that Van Sickel's agency did not extend beyond the county; and, further, that the return was not subject to amendment, but that the cause would have been called and tried on the theory that the limitation of agency was fixed, final and conclusive--then, admittedly, a judgment rendered thereunder would be void. It follows that if appellee, thus secure, had applied to the court for any relief other than to quash the void summons, it would have been in court for all purposes, and subject to judgment.
Conversely, if service originated under some statute other than § 1152 in consequence of which default judgment against a corporation might be taken; or, no designated statute having been relied upon, but the case having been called, and summons regular on its face but ambiguous as to the return having been presented under motion to amend such return; then, such amendment not being true, a nonappearing defendant against whom judgment was rendered would be required not only to challenge and disprove the testimony which gave apparent validity to the service, but to establish a meritorious defense.
But, insists appellant, in the instant case appellee knew that the service was void; knew that Van Sickel was agent for Sebastian county alone; knew that it was not required to appear except for the purpose of moving to quash, but did answer and demur, and by its answer verified appellant's present contention--that the service was void. The answer contains this statement: "The only service of summons or other process upon this defendant was had upon Walter S. Van Sickel, agent for the company, in Sebastian county, and not elsewhere." Appellee replied, and urged in its oral argument with apparent sincerity, that by this sentence it was not intended to say that Van Sickel was agent for the company in Sebastian county and not elsewhere; but on the contrary, the term "agent for the company," preceded by a comma separating "agent" from Van Sickel, and followed by a comma separating "company" from "in," was descriptive only, and the sentence might be read: "The only service of summons or other process upon this defendant was had upon Walter S. Van Sickel, in Sebastian county, and not elsewhere, he being the agent of the company."
Admittedly, a litigant is bound by the language of his pleading, and if by inadvertence or ineptness the reasonable and natural construction to be given to his words is at variance with the intended meaning, the adverse party has a right to adopt that construction which the language seems to import. But if it be conceded that appellee's representations as to Van Sickel's capacity were such as to justify appellant in believing there was a county agency only, it does not necessarily follow that Van Sickel's capacity was exclusively that of a local or county agent. He might have been such local agent, and at the same time an agent generally for service in the state. This is exactly what he was. The official records in the office of the Secretary of State, of which we take judicial notice, contain the following: "Be it resolved, that service of process upon W. S. Van Sickel, as agent of Oklahoma Gas and Electric Company in the state of Arkansas in any action brought or pending in said state shall be valid service upon this company."
We now turn to a discussion of certain statutes, their relation one to the other, and the effect to be given their provisions when a corporation is made defendant.
Section 1152, Crawford & Moses' Digest, now § 1369 of Pope's Digest, is as follows: "Any and all foreign and domestic corporations who keep or maintain in any of the counties of this state a branch office or other place of business shall be subject to suits in any of the courts in any of the said counties where said corporations so keep or maintain such office or place of business, and service of summons or other process of law from any of the said courts held in said counties upon the agent, servant or employee in charge of said office or place of business shall be deemed good and sufficient service upon said corporations, and shall be sufficient to give jurisdiction to any of the courts of this state held in the counties where said service of summons or other process of law is had upon said...
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