Pub. Serv. Co. of Okla. v. Hawkins

• Decision Date: 21 February 1944
• Docket Number: Case Number: 31317
• Citation: 149 P.2d 783,1944 OK 101,194 Okla. 272
• Parties: PUBLIC SERVICE CO. of OKLAHOMA v. HAWKINS
• Court: Oklahoma Supreme Court

1944 OK 101

149 P.2d 783

194 Okla. 272

PUBLIC SERVICE CO. of OKLAHOMA v. HAWKINS

Case Number: 31317

Supreme Court of Oklahoma

Modified: June 13, 1944

Decided: February 21, 1944

Syllabus

¶0 1. CORPORATIONS--Statute construed to authorize action against domestic corporation in any county where it maintains place of business though not its "principal place of business."

Among other provisions, 12 O.S. 1941 § 134 provides "an action. . . . 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. . . ." Within the meaning of such section such corporation may be sued in any county wherein it regularly maintains an office or place of business, with servants, employees, or agents engaged in conducting and carrying on the business for which it exists, although it has its principal office or place of business in another county.

2. APPEAL AND ERROR--Excessiveness of verdict for damages-Requirement of remittitur.

When a verdict is attacked on the ground that it is excessive, this court will not disturb the same unless the jury has committed some gross and palpable error, or acted under bias, influence, or prejudice, or has totally ignored the rule of law by which damages are awarded, but when the amount awarded as damages is so excessive as to indicate that the jury was actuated by bias, prejudice, or passion, it is the duty of this court to hold the verdict to be excessive and to remand the cause with directions to vacate the judgment and grant a new trial unless the plaintiff files a proper remittitur.

3. SAME--After giving defendant's requested instruction on limitation as concerns life expectancy of plaintiff's deceased husband, it was not prejudicial error to further instruct on limitation as concerns plaintiffs life expectancy.

Where, in an action for wrongful death, an instruction is given as requested by defendant purporting to inform the jury as to the elements to be considered in determining the amount of damages, which includes a limitation as concerns the life expectancy of plaintiff's deceased husband, but does not include a limitation as concerns plaintiff's life expectancy, the giving of a further instruction containing the latter limitation does not necessarily result in error prejudicial to defendant.

4. ELECTRICITY--Compliance with rules of Corporation Commission does not relieve one of duty to use ordinary care.

Rules of the Corporation Commission in evidence in this case, regulating the construction and maintenance of electric lines and equipment, and providing certain standards therefor, do not operate to relieve one of the duty to use such ordinary care and prudence as would be required under the circumstances of a particular case.

5. EVIDENCE--Admissibility of opinion of expert electrician based on hypothetical question.

The opinion of an expert electrician concerning the proper or improper construction of an electrical transmission system, where such opinion is based upon a hypothetical question, and such question is based upon facts reasonably supported by the evidence, is proper to go to the jury.

Appeal from District Court, Coal County; Roy Paul, Judge.

Action for damages for wrongful death by Kate Hawkins against the Public Service Company of Oklahoma. From verdict and judgment in favor of plaintiff, the defendant appeals. Affirmed on condition of remittitur.

V. E. McInnis, of Oklahoma City, for plaintiff in error.

Gomer Smith and Nelson Rosen, both of Oklahoma City, for defendant in error.

WELCH, J.

¶1 Plaintiff's deceased husband lost his life in Tulsa county, Okla., while working as a lineman in the employ of defendant, a domestic corporation.

¶2 Defendant, upon appeal, asserts that venue of the action lies exclusively in Tulsa county under 12 O.S. 1941 § 134, which it claims governs under the facts here. It contends that the opinions in First National Bank of Seminole v. Henshaw, 169 Okla. 49, 35 P. 2d 898, and Atlas Life Ins. Co. v. Randle, 190 Okla. 680, 126 P. 2d 517, conclusively support its position in that regard. In its reply brief it calls attention to other reported decisions and texts as further supporting its view.

¶3 Plaintiff contends that her action was brought in a county of proper venue on the theory, among others, that the chosen venue is authorized by the abovecited statute when same is properly construed. Our conclusion on the venue issue is based entirely on the proposition thus presented, and other theories presented on that issue are not considered.

¶4 Plaintiff's theory in that regard may be best shown in her own language as follows:

"The defendant corporation is 'situated' in Coal county, and under the provisions of 12 Okla. St. Ann. § 134 an action against a corporation created by the laws of this state may, at the option of the plaintiff, be brought in the county in which it is situated. Under the foregoing statute, a corporation. is deemed to be situated in any county where it has a place of business and agents or employees engaged in carrying on the same."

¶5 The facts with respect to that question appear in this record as follows: No part of the cause of action arose in Coal county; the defendant corporation was organized and chartered under the laws of this state; its charter contains the following provisions:

"To manufacture and/or purchase gas or electricity, or both, and to transmit, distribute and sell the same, either at wholesale or retail.

"To acquire, hold, manage and operate canals, reservoirs, dams, ditches, flumes, aqueducts, pipes and water lines as well as distribution systems thereof for the purpose of furnishing water for public and/or private use, and such other property as may be necessary for use in connection therewith, as well as for the purpose of generating and transmitting electrical energy, heat, power, water and other uses....

"To buy, acquire, own and build, and to sell and dispose of any and all necessary transmission lines, either pole lines or pipe lines, for the conducting of said gas, or electricity, to the points where the same may be sold by this company, either at wholesale or retail.

"The principal place of business of this corporation shall be at the City of Tulsa, Tulsa county, State of Oklahoma, and other offices of this company may be maintained for the transaction of its business and corporation powers at any other point or points, within said state, and offices for such purposes are hereby fixed at Oklahoma City, Oklahoma county, Oklahoma; Guthrie, Logan county, Oklahoma; Vinita, Craig County, Oklahoma; Atoka, Atoka County, Oklahoma; Lehigh and Coalgate, Coal county, Oklahoma; Chickasha, Grady county, Oklahoma; and Lawton, Comanche county, Oklahoma; and the directors of this company may in the future designate other offices in other counties in the State of Oklahoma where the business of this corporation may be transacted and meetings of its stockholders and directors held. . ."

¶6 The further facts are that defendant has maintained an office and electrical service lines in Coal county continuously since 1925, with Mr. Downing in charge (upon whom service was had) and with other employees for the purpose of servicing that community; that Mr. Downing was not a principal officer of such corporation and had no powers of corporate control, and that the principal business of the corporation was conducted in Tulsa county; that none of the principal officers of the corporation resided in Coal county or were summoned there.

¶7 Section 134, supra, provides:

"An action, other than one of those mentioned in 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."

¶8 Plaintiff's approach in her discussion in connection with this statute concedes that defendant's "principal office or place of business is in Tulsa county," but she says that by reason of the provision in that statute to the effect that the action "may be brought in the county in which it is situated," the defendant may also be sued in a county other than that in which it maintains its principal office or place of business. Defendant urges that the terms "situated or has its principal office or place of business. . ." are used synonymously in the statute. That the whole phraseology- refers only to the principal place of business, and that the use of the term "in which it is situated" does not enlarge that meaning.

¶9 Contrary to defendant's assertion, this court has never considered the matter of the construction of those particular features of this section of our statute, as we shall presently point out.

¶10 Our task here is the construction of a specific statute fixing the venue of actions as relates to domestic corporations. We are not confined to certain general or common-law rules relating to determination of the residence or domicile of a corporation as fixing venue, nor indeed are we concerned with such rules if our statute provides otherwise. As a consequence, the authorities given us by defendant to the effect that the principal place of business of a corporation is conclusively fixed by the charter provisions, and that it can be sued only at the place thereby fixed because that is the place of its residence or domicile, will not aid defendant here if our statute does, as plaintiff says, also authorize suit in other counties. Stated differently, it is of no importance where this corporation is domiciled, or has its principal office or place of business, if that statute is intended to and does permit suit elsewhere.

¶11 In Thompson on Corporations (3rd Ed.) see. 3019 (vol. 4, p. 784) there appears the following:

"In the absence of statutory regulation, the common-law rule prevails,

...