Robinson v. Missouri Pac. Transp. Co.

• Decision Date: 19 February 1951
• Docket Number: No. 4-9361,4-9361
• Citation: 218 Ark. 390,236 S.W.2d 575
• Parties: ROBINSON et al. v. MISSOURI PACIFIC TRANSP. CO. et al.
• Court: Arkansas Supreme Court

Page 575

236 S.W.2d 575

218 Ark. 390

ROBINSON et al. v. MISSOURI PACIFIC TRANSP. CO. et al.

No. 4-9361.

Supreme Court of Arkansas.

Feb. 19, 1951.

O. D. Longstreth, Jr., Joseph Brooks and Dave Witt, all of Little Rock, for appellant.

William J. Smith, Pat Mehaffy and Henry Donham, all of Little Rock, for appellee.

MILLWEE, Justice.

Plaintiff, David E. Robinson, and six other former employees of defendant, Missouri Pacific Transportation Co., brought separate actions in the Clark Circuit Court against the company and two of its employees, John F. Rea and T. T. Allen.

According to the allegations of the complaints some of the plaintiffs are residents of Pulaski County while others reside in Jackson and Van Buren Counties. Each complaint alleges: 'The defendant Missouri Pacific Transportation Company is a corporation organized under the laws of the State of Delaware, authorized to do business in the State of Arkansas, and having a branch office and place of business in Clark County, Arkansas. The defendant John F. Rea is a citizen and resident of Pulaski County, Arkansas, and is employed by the Missouri Pacific Transportation Company as District Supervisor in charge of a district including all of the State of Arkansas. The defendant T. T. Allen is a citizen and resident of Desha County, Arkansas, and is employed by the Missouri Pacific Transportation Company as a Division Supervisor, subordinate to the defendant Rea. The Missouri Pacific Transportation Company is engaged in the business of operating a line of motor buses throughout the state of Arkansas, and in all the transactions hereinafter set forth it acted by and through its agent and employees, John F. Rea and T. T. Allen, who were duly authorized by it and acting within the scope of their employment.'

It was further alleged that each plaintiff had been formerly employed by the transportation company as a motor coash operator under a contract between the company and the Brotherhood of Railway Trainmen, which provided that no employee might be dismissed without a fair and impartial hearing; that in or about March, 1947 the company, through its employees Rea and Allen, unlawfully and maliciously conspired with the vice-president and general manager of the company and the operators of a private detective agency to bring about plaintiff's discharge by manufacturing false testimony and lodging false charges of breach of trust in failing to account for fares collected by plaintiff; that as a result of said conspiracy a hearing was held at Little Rock, Arkansas before defendant John F. Rea on such false and manufactured testimony resulting in plaintiff's wrongful discharge; that plaintiff was thereby deprived of his employment and his present and future earning capacity; and that the good name and reputation which he formerly enjoyed were thereby defamed, resulting in great shame, humiliation and mental anguish. Each plaintiff prayed judgment for $70,000.00, actual damages, and $10,000.00, punitive damages.

The record reflects that a summons, issued to the sheriff of Clark County, was served upon the defendant transportation company by delivering a copy to Grant R. Allen, agent in charge of said company. Defendant John F. Rea was served with summons in Pulaski County and defendant T. T. Allen was served in Desha County.

After the cases were removed to U. S. District Court and remanded to the Clark Circuit Court, D.C., 85 F.Supp. 235, the defendants filed in each of the cases a motion to quash service of process. Each motion alleged, inter alia, that the cause of action did not arise in Clark County; that plaintiff was not a resident of Clark County; that the circuit court of Clark County was without venue of the action; and that the process issued out of said court and served upon each of the defendants was invalid.

Each plaintiff filed a response to the motion admitting that he was not a resident of Clark County; that the transportation company was a Delaware corporation with an authorized Arkansas agent for service who had not been served with process in the action. The case were consolidated for the purpose of a hearing on said motions resulting in separate orders which recite: 'That the motion of the defendants to dismiss for improper venue should be and the same is hereby sustained and the cause of action is hereby dismissed for want of proper venue.' Although each order also recites the filing and overruling of a motion for new trial, it was conceded in the oral argument that no written motion for new trial was filed and that no testimony was heard on the motions to quash service.

A motion has been made by defendants to dismiss the appeal for noncompliance with our Rule 9 because plaintiffs' abstract of the record is dificient in several alleged particulars. In this connection it should first be noted that the motions to quash were sustained and the cases dismissed solely on the ground of improper venue. The validity of this holding is the only point raised by plaintiffs on this appeal. It is true that there are certain allegations in the motions to quash, and the responses thereto, pertaining to jurisdiction and other matters which do not bear directly on the issue of venue. We have held that where only one point is raised on appeal, an abstract of the record on that point alone is a sufficient compliance with the rule. St. Louis, I. M. & S. R. Co. v. Craft, 115 Ark. 483, 171 S.W. 1185, L.R.A.1916C, 817. While plaintiffs' abstract is not as complete as it might be, we deem it sufficient to cover the point raised and hold that the motion to dismiss should be denied.

In the absence of a motion for new trial, we will only consider errors apparent from the record itself. Burns v. Harrington, 162 Ark. 162, 257 S.W. 729; Stone v. Bowling, 191 Ark. 671, 87 S.W.2d 49. It is apparent from the record that none of the parties to the instant suits are residents of Clark County and that service of process was obtained upon the agent in charge of the transportation company's office in Clark County.

Defendants contend that venue in the several actions is controlled by either Ark.Stats. § 27-610 or § 27-612, or both, while plaintiffs insist that the actions are maintainable in Clark County under § 27-613. These statutes read: '(27-610) All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury, and provided further that in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service. (Acts 1939, No. 314, § 1, p. 769.)

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'(27-612) All civil actions for the recovery of damages brought against a non-resident of the State of Arkansas may be commenced in the county where the accident occurred which caused the injury, or death, or in the county where the person injured, or killed, resided at the time of the injury. Service of process may be had in any county of the State where the defendant, or any of them, may be found. (Acts 1947, No. 347, § 1, p. 778.)

'(27-613) Every other action may be brought in any county in which the defendant, or one of...