Hicks v. Wolfe

• Decision Date: 16 December 1957
• Docket Number: Nos. 5-1403,5-1418,s. 5-1403
• Citation: 228 Ark. 406,307 S.W.2d 784
• Parties: Lonnie HICKS et al., Petitioners, v. Paul WOLFE, Judge, Respondent. Lonnie HICKS et al., Appellants, v. The ARKANSAS MOTOR FREIGHT LINES, Inc., et al., Appellees.
• Court: Arkansas Supreme Court

Page 784

307 S.W.2d 784

228 Ark. 406

Lonnie HICKS et al., Petitioners, v. Paul WOLFE, Judge, Respondent.

Lonnie HICKS et al., Appellants, v. The ARKANSAS MOTOR FREIGHT LINES, Inc., et al., Appellees.

Nos. 5-1403, 5-1418.

Supreme Court of Arkansas.

Dec. 16, 1957.

Donald Poe, Waldron, for petitioners.

Dobbs, Pryor & Dobbs, Harper, Harper & Young, Ft. Smith, for respondent.

McFADDIN, Justice.

These are companion cases arising from the same traffic mishap; and both cases require a decision as to whether the Trial Court was correct in applying the doctrine of forum non conveniens to actions arising under § 27-610 and § 27-611, Ark.Stats., which are venue statutes relating to damages claimed to result from an accident, such as the traffic mishap here involved.

Case No. 1403 in this Court is Hicks v. Wolfe, Judge, and is a petition for a Writ of Prohibition directed to the Sebastian Circuit Court, which had denied petitioners' motion to quash service of summons and was about to proceed to trial in a pending cause. The petitioners herein are Lonnie Hicks and his son, Lonnie Bruce Hicks. Case No. 1418 in this Court is an appeal by Hicks et al. From a judgment of the Scott Circuit Court which quashed the service of summons on the Arkansas Motor Freight Lines, Inc. and others in an action in the Scott Circuit Court brought by Lonnie Hicks and Lonnie Bruce Hicks against the Arkansas Motor Freight Lines, Inc. and others. The practical effect of the quashing of service by the Scott Circuit Court was to deprive Hicks et al. of any trial in Scott County; so they have appealed under the authority of Berryman v. Cudahy Packing Co., 189 Ark. 1151, 76 S.W.2d 956. The two cases in this Court (No. 1403 and No. 1418) have not been consolidated; but we dispose of both of them in this one opinion.

On December 28, 1956 a three-way traffic mishap occurred in Scott County, Arkansas. One vehicle was owned by Lonnie Hicks and driven by his son, Lonnie Bruce Hicks. The second vehicle was owned by Arkansas Motor Freight Lines, Inc., a corporation, and driven and operated by R. C. Moore and H. W. Moon. The third vehicle was owned by Hargis Canneries, Inc., and was driven by William E. Hall. The same day of the traffic mishap (December 28th), Lonnie Hicks and Lonnie Bruce Hicks filed their action in the Scott Circuit Court (the County in which the mishap occurred) against all the owners and operators and drivers of the other two vehicles; and the Hicks obtained service as follows: Arkansas Motor Freight Lines, Inc., served on December 28, 1956 and again on December 29, 1956; H. W. Moon, served December 29, 1956; Hargis Canneries, Inc., served December 29, 1956; and William E. Hall, served December 29, 1956. We will refer to this case of Hicks v. Arkansas Motor Freight Lines, Inc. et. al. as the 'Scott County case'.

The Arkansas Motor Freight Lines, Inc. is a corporation domiciled in Sebastian County; and on December 28, 1956 (the same day of the traffic mishap) the Arkansas Motor Freight Lines, Inc. filed its action in the Sebastian Circuit Court (in which County the Arkansas Motor Freight Lines, Inc. is domiciled), against Lonnie Hicks, Lonnie Bruce Hicks, Hargis Canneries, Inc., and William E. Hall; and the Arkansas Motor Freight Lines, Inc. obtained service as follows: Lonnie Hicks, served January 1, 1957; Lonnie Bruce Hicks, served January 1, 1957; Hargis Canneries, Inc., ¹ served December 28, 1956 and again on January 16, 1957; and William E. Hall, served December 28, 1956 and again on January 16, 1957. We will refer to this case of Arkansas Motor Freight Lines, Inc. v. Hicks et al. as the 'Sebastian County case'.

In due time, Lonnie Hicks and Lonnie Bruce Hicks filed pleadings in the Sebastian County case, showing that their service on Arkansas Motor Freight Lines, Inc. in the Scott County case was prior, in point of time, to any service on them or on anyone else in the Sebastian County case. The Hicks thus pleaded the Scott County case as fixing venue regarding the Hicks' claim against Arkansas Motor Freight Lines, Inc., as well as against all the other defendants in the Scott County case. The Hicks prayed that they be dismissed from the Sebastian County case. When the Sebastian Circuit Court overruled the said motion to quash and announced the intention to proceed to trial against the Hicks, this Petition for Prohibition resulted; and is case No. 1403 herein.

In the Scott County case, the Arkansas Motor Freight Lines, Inc. filed its motion to quash the summons served on it; and the Hargis Canneries, Inc. and Hall filed their motion to quash the summons served on them; and the Scott Circuit Court quashed all of the summons, which action--in view of the ruling in the Sebastian County case--had the practical effect of finally disposing of the Scott County case and preventing the Hicks from trying their case in that venue; so the Hicks have appealed the said judgment in the Scott County case, and that appeal is Case No. 1418 in this Court. The same learned Judge presides over both the Scott Circuit Court and the Sebastian Circuit Court. The cases were argued and briefed together before him, and his written opinion applies to both cases. It is scholarly and enlightening. ²

It is conceded that the Hicks are correct in their contentions if we follow our holdings in Kornegay v. Auten, 203 Ark. 687, 158 S.W.2d 473; Healey & Roth v. Huie, 220 Ark. 16, 245 S.W.2d 813; and Carnes v. Strait, 223 Ark. 962, 270 S.W.2d 920. But the learned Circuit Judge was of the opinion that the statements of this Court concerning the doctrine of forum non conveniens, as contained in the case of Running v. Southwest Freight Lines, Inc., Ark., 303 S.W.2d 578, gave the Circuit Court the right to decide which County--as between Scott County and Sebastian County--was more convenient to the Court and the litigants. With such understanding of Running v. Southwest Freight Lines, Inc., supra, it was held that Sebastian County was the forum conveniens and that Scott County was the forum non conveniens. We are thus brought to the question, whether the doctrine of forum non conveniens applies, between Counties in this State, to actions under § 27-610 and § 27-611, Ark.Stats.

The Circuit Judge clearly recognized that in the case of Running v. Southwest Freight Lines, supra, we were applying the doctrine of forum non conveniens to an imported case: that is, one which originated in another State. Likewise, in the briefs filed in this Court it is frankly conceded that no case had been found in which forum non conveniens had been applied to venue cases between counties in the same state.

In the case of Suhay v. Whiting, Ohio Com.Pl., 96 N.E.2d 609, as automobile collision occurred in C. County. Both plaintiff and defendant resided in G. County. The plaintiff sued in C. County and obtained service. There was a motion to dismiss. The Court discussed the doctrine of forum non conveniens as applied to counties in the same state; but finally rested the decision on the fact that the plaintiff had lured the defendant into C. County in order to obtain service on him; and the motion to quash was based on the fact that service had been 'wrongfully obtained'. Thus, all that was said on forum non conveniens was really dicta.

In the case of United States v. National City Lines, 334 U.S. 573, 68 S.Ct. 1169, 1173, 92 L.Ed. 1584, the Supreme Court of the United States had occasion to consider whether the doctrine of forum non conveniens should be applied so as to override a venue statute; and the majority opinion (made by six Justices) in that case contains clear reasoning. The question was, whether the doctrine of forum non conveniens applied to antitrust cases brought by the Government under § 12 of the Clayton Act, 15 U.S.C.A. § 22. The majority opinion demonstrated that such § 12 of the Clayton Act had a legislative history which showed a clear intention to allow the Government to select its venue; and the majority concluded that because of such legislative history, the doctrine of forum non conveniens should not be applied, because such application would constitute judicial overriding of legislative action as to venue. The majority opinion contains these statements:

'These conclusions concerning the section's intent and effect are altogether inconsistent with any idea that the defendant corporation can defeat the plaintiff's choice of venue as given, by asking for and securing dismissal of the suit, either on the ground that the venue selected within the statutory limits is inconvenient for the defendant or that another authorized venue is more convenient for it. * * *

'Finally, both appellees and the District Court have placed much emphasis upon this Court's recent decisions applying the doctrine of forum non conveniens and in some instances extending the scope of its application. Whatever may be the scope of its previous application or of its appropriate extension, the doctrine is not a principle of universal applicability, as those decisions uniformly recognize. At least one invariable, limiting principle may be stated. It is that whenever Congress has vested courts with jurisdiction to hear and determine causes and has invested complaining litigants with a right of choice among them which is inconsistent with the exercise by those courts of discretionary power to defeat the choice so made, the doctrine can have no effect.'

The quoted reasoning by the U.S. Supreme Court is faultless: when the legislative branch of the government gives the plaintiff the choice of venues and the plaintiff diligently exercises the choice, then it is not for the courts to invent their own doctrine to overrule the legislative determination. When we consider § 27-610 and § 27-611, Ark.Stats. we see the legislative intention in the case at bar as clearly as appeared to the United States Supreme Court in the case of United States v. National City Lines, supra, from which we have just...