Schramm-Johnson, Drugs v. Cox, Judge
| Decision Date | 28 March 1932 |
| Docket Number | 5155 |
| Citation | 9 P.2d 399,79 Utah 276 |
| Court | Utah Supreme Court |
| Parties | SCHRAMM-JOHNSON, DRUGS, v. COX, Judge |
Original proceeding for writ of mandamus by Schramm-Johnson Drugs, against Le Roy H. Cox, Judge, to require the court to change venue in an action for damages.
Alternative writ recalled, and permanent writ denied.
Hurd & Hurd, of Salt Lake City, for plaintiff.
King & King, of Salt Lake City, for defendant.
On application to this court by verified petition of the Schramm-Johnson, Drugs, a corporation, an alternative writ of mandate was issued directing the judge of the Fifth judicial district court in and for Beaver county to change the place of trial of a cause commenced in that court wherein John P. Barton is plaintiff and Schramm-Johnson, Drugs, a domestic corporation with its principal place of business in Salt Lake City, Salt Lake county, Parke, Davis & Co., a nonresident corporation organized under the laws of the state of Michigan with its principal place of business at Detroit, and the Beaver Drug Company, a domestic corporation with its principal place of business at Beaver City, Beaver county, defendants, or show cause.
By the petition it in substance is alleged that in a prior action commenced in the Fifth judicial district court in Beaver county wherein Barton was plaintiff, and Schramm-Johnson, Drugs, and Parke, Davis & Co. were defendants, and of service of summons only on, Schramm-Johnson Drugs, at Salt Lake City where was its principal place of business, the place of trial of the cause, on motion of Schramm-Johnson, Drugs, in pursuance of Comp. Laws Utah 1917, §§ 6531 and 6533, was transferred to Salt Lake county, the residence of that company. The action was brought to recover damages for the death of 82 sheep alleged to have been caused by the negligence of Schramm-Johnson, Drugs, at its place of business in Salt Lake City by filling and mailing an order given by the Beaver Drug Company at Beaver City for anthrax vaccine for sheep, with anthrax vaccine for horses, mules, and cattle only, which vaccine was delivered by the Beaver Drug Company to Barton and by him administered to his sheep in Beaver county causing the death of 82 head. After the case was transferred to Salt Lake county, Barton, before trial, voluntarily dismissed the action without prejudice.
Thereafter he commenced a second action in the district court of Beaver county on the same transaction and identical cause of action, making the Schramm-Johnson, Drugs, the Parke, Davis & Co., and the Beaver Drug Company, defendants, the last-named company being a resident of Beaver county where it was engaged in the retail drug business. Summons was again served on Schramm-Johnson, Drugs, at Salt Lake City, and a pretended service of summons on Parke, Davis & Company at Salt Lake City, and a summons on the Beaver Drug Company. In that complaint, after alleging that Schramm-Johnson, Drugs, is a domestic corporation carrying on a general retail and wholesale drug business in Salt Lake City, that Parke, Davis & Co. is a corporation organized under the laws of Michigan with its principal office and place of business at Detroit, and Beaver Drug Company a domestic corporation doing a retail drug business at Beaver City, Beaver county, it in substance is alleged that Barton, who was a stockholder of the Beaver Drug Company and interested therein, inquired of that company whether it carried in stock anthrax vaccine for sheep and was told that it did not; that the vaccine was manufactured by Parke, Davis & Co. and that the Beaver Drug Company could procure it in a few days from Schramm-Johnson, Drugs, at Salt Lake City; that Barton thereupon placed an order with the Beaver Drug Company for a sufficient quantity of the vaccine to immunize his herd of sheep, which order was accepted by the Beaver Drug Company and by it agreed to procure the vaccine from Schramm-Johnson, Drugs; that the Beaver Drug Company thereupon telephoned Schramm-Johnson, Drugs, at Salt Lake City for a quantity of vaccine for sheep, which order was accepted by Schramm-Johnson, Drugs; that the Beaver Drug Company thereafter by mail received from Schramm-Johnson, Drugs, a quantity of vaccine purporting to be vaccine for sheep which was by the Beaver Drug Company delivered to the plaintiff as anthrax vaccine for sheep; that Schramm-Johnson, Drugs, and Parke, Davis & Co., in filling the order, negligently and carelessly filled it with anthrax vaccine for horses, mules, and cattle instead of for sheep, which was by the Beaver Drug Company delivered to Barton, who, believing it to be vaccine for sheep, used it in immunizing his herd consisting of about 165 head in Beaver county; and that 82 head died from the use of such vaccine, for which damages were claimed against the three defendants. It also is alleged that it "was dangerous," and so known to Schramm-Johnson, Drugs, to administer to sheep vaccine for horses, mules, and cattle.
The Beaver Drug Company appeared in the action and filed a general demurrer to the complaint. Parke, Davis & Co. appeared specially and filed a motion to quash the service of summons. Neither the demurrer nor the motion to quash had been disposed of when application was made for this writ. Schramm-Johnson, Drugs, appeared, demurred to the complaint, and contemporaneously therewith again filed a motion for a change of the place of trial to Salt Lake county as was done in the prior action. The motion was put on grounds that the residence of Schramm-Johnson, Drugs, was in Salt Lake county where was its principal place of business and where it was served with summons; that the alleged cause of action, if any, stated against Schramm-Johnson, Drugs, arose in Salt Lake county wherein it was alleged the negligent acts of filling and mailing the order were committed; and that the ruling made in the prior action transferring the cause to Salt Lake county was res judicata. The motion was based on affidavits the averments of which were not denied, and on the records and files in the cause. It was denied. Hence, this application to require the court to again change the place of trial and transfer the cause to Salt Lake county. The petition for the writ is demurred to. An answer thereto also is filed, but in which about all of the material allegations of fact alleged in the petition are admitted.
The statute, after prescribing the place of trial of designated or enumerated actions of which the kind of action in hand is not included, further, Comp. Laws Utah 1917, § 6531, prescribes that: "In all other cases the action must be tried in the county in which the cause of action arises, or in the county in which any defendant resides at the commencement of the action," etc. By section 6533 it also is provided that when the county designated in the complaint is not the proper county, the place of trial may be changed on motion of the defendant when he appears in the action and demurs or answers and files an affidavit of merits, which here was done.
It is urged by the applicant that no cause of action is stated against the resident defendant the Beaver Drug Company, and that the case thus stands as though no resident of Beaver county had been made a party defendant; and that the Beaver Drug Company was made a party defendant; and that the Beaver Drug Company was made a party defendant merely to prevent the case from again being transferred to Salt Lake county. To support that, the petitioner herein cites the following authorities and cases: 27 R. C. L. 804; Burg v. Farmers' Mutual Fire & L. Ins. Co., 59 N.D. 407, 230 N.W. 214; Johnson v. Benton, 73 Cal.App. 571, 239 P. 63; Hannon v. Nuevo Land Co., 14 Cal.App. 700, 112 P. 1103; Coen v. Watson, 105 Cal.App. 297, 287 P. 525; Burt v. City of Spearman (Tex. Civ. App.) 19 S.W.2d 96; City of Dallas v. Springer (Tex. Civ. App.) 8 S.W.2d 772. The cases support the view that if no cause of action...
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