Safeway Stores, Inc. v. Shwayder Bros., Inc.

• Decision Date: 07 December 1964
• Docket Number: No. 5-3389,5-3389
• Citation: 238 Ark. 768,384 S.W.2d 473
• Parties: SAFEWAY STORES, INC., Appellant, v. SHWAYDER BROTHERS, INC., Appellee.
• Court: Arkansas Supreme Court

Page 473

384 S.W.2d 473

238 Ark. 768

SAFEWAY STORES, INC., Appellant, v. SHWAYDER BROTHERS, INC., Appellee.

No. 5-3389.

Supreme Court of Arkansas.

Dec. 7, 1964.

Wright, Lindsey, Jennings, Lester & Shults, Little Rock, for appellant.

Fulk, Wood, Lovett & Parham and S. Hubert Mayes, Jr., Little Rock, for appellee.

WARD, Justice.

Two issues are raised on this appeal. One, is there an appealable order? Two, is Act 101 of 1963 constitutional as appellant seeks to apply it to the facts of this case? The facts necessary to an understanding of these issues are as hereafter briefly set forth.

On November 17, 1962 John E. Chronister was in one of the stores belonging to Safeway Stores, Inc. and sat down on a metal chair manufactured by Shwayder Brothers, Inc. (hereafter called appellee). The chair collapsed and Chronister was severely injured by the ensuing fall. On July 19, 1963 he filed suit against Safeway Stores (hereafter called appellant). On August 21, 1963 appellant answered and also cross-complained against appellee, a non-resident corporation, not authorized to do business in Arkansas. Appellant, after alleging acts of negligence on the part of appellee, stated that if appellant 'is found to be liable in any degree to the plaintiff (Chronister), then this defendant (appellant) is entitled to have judgment over and against' appellee for indemnity or contribution as provided by Ark.Stat.Ann. § 34-1001 (Repl.1962) et seq., being the Uniform Contribution Among Tortfeasors Act.

Appellant obtained service on appellee under the provisions of Act 101 of 1963, Ark.Stat.Ann. §§ 27-2501 to 27-2507 (Supp.1963), known as the Uniform Interstate and International Procedure Act. There is no contention that the form or manner of service, as required by the Act, was defective. Appellee entered a special appearance to file a motion to vacate, quash, and set aside the said 'purported summons and purported service'. This motion was sustained by the trial court, and it is from this action of the trial court that appellant prosecutes this appeal.

One. Appellee makes an able argument that there is no appealable order in this case, and that therefore the appeal should be dismissed. To sustain this argument appellee relies heavily on what we said in a per curiam opinion in the case of Robberson v. Steele Canning Co., 233 Ark. 988, 349 S.W.2d 814. While that case appears on casual examination to be controlling in this case, we think a valid and logical distinction exists. In the Robberson case it will be observed that we said the trial court quashed the 'service of summons', and that we also said: 'we think the better practice is to require him either to stand upon the sufficiency of his service and permit a final order to be entered, or to have the return amended to conform to the rulings of the court'. (Emphasis added.) On the cited case we think the court had in mind that it would be a waste of time, money and effort to perfect an appeal to this Court only to learn it was necessary 'to have the return amended' and then perhaps start again on the long and expensive cause of perfecting another appeal. In other words, in the Robberson case, the trial judge was in effect saying to the appellant: when you amend your service I am ready to hear your case. The above situation was not, we think, the situation in the case here under consideration. Here, the trial court did not quash the 'purported summons' because of any defect in the way it was served--that is, a defect which could be amended. To the contrary, the trial court 'held the attempted retroactive application of Act 101 * * * relating to service of summons on non-resident defendants is unconstitutional and void'; That holding by the court amounted in fact to a judgment on the merits of the real issue raised by this appeal. Not only so, but the trial court also said 'this court is without jurisdiction as to' appellee. This certainly makes it clear that appellant would not be allowed under any circumstances to try its case against appellee. We must conclude therefore that the only relief available to appellant was to appeal to this Court. In that respect the trial court's order was final and appealable.

Two. As previously indicated, appellant's contention is that the trial court erred in holding said Act 101 unconstitutional as applied to appellee--a non-resident corporation. Putting it another way, appellant says: 'The trial court erred in granting appellee's motion to quash on the ground that Act 101 of 1963 cannot apply retroactively'. In other words, the decisive issue here, as appellant sees it, is whether said Act 101 deals with procedure or with the substantive rights of appellee. In our opinion the Act deals only with procedure (in this case), as contended by appellant, and is therefore governed by our decision in the case of Harrison v. Matthews, 235 Ark. 915, 362 S.W.2d 704. There, in construing Act 54 of 1961 Ark.Stat.Ann. § 27-339 (Repl.1962), we held service pursuant to the Act was good in 'a case involving a cause of action that antedated the statute'. In so holding we quoted with approval the following from State ex rel. Moose v. Kansas City & M. Ry. & B. Co., 117 Ark. 606, 174 S.W. 248:

'The strict rule of construction contended for does not apply to remedial statutes which do not disturb vested rights, or create new obligations, but only supply a new or more appropriate remedy to enforce an existing right or obligation. These should receive a more liberal construction, and should be given a retrospective effect whenever such seems to have been the intention of the Legislature.'

In the Harrison case we also said:

'Act 54 did not create new substantive rights. Whatever cause of action this appellant now has was already in being when the statute was adopted. Its only effect was to permit a plaintiff to obtain personal jurisdiction in the courts of this state over a nonresident defendant. The act is procedural in nature, merely providing in this instance a new forum for the enforcement of existing rights. Being procedural, the act applies to all cases filed after it became effective.'

It is of course conceded that Act 101 was enacted some months after Chronister was injured by the alleged negligence of appellee, but it did not, in our opinion, affect any substantive rights of appellee. It was remedial only and therefore must be construed retrospectively in this case.

Appellee makes the further contention that the aforementioned Act 54 is distinguishable from Act 101, and, based thereon, astutely argues that the Harrison case, supra, furnishes no sound basis for holding that service under Act 101 is constitutional as applied to a non-resident defendant. We recognize a...