Staats v. Co-Operative Transit Co.

• Decision Date: 23 March 1943
• Docket Number: (No. 9361)
• Court: West Virginia Supreme Court
• Parties: Velma Taylor Staats v. Co-Operative Transit Company

125 W.Va. 473

Velma Taylor Staats

v.Co-Operative Transit Company

(No. 9361)

Supreme Court of Appeals of West Virginia.

Submitted February 2, 1943.

Decided March 23, 1943.

1. Venue

A circuit court having jurisdiction as to one defendant by reason of his residence, can acquire jurisdiction of all others resident in the State by proper service of process, whether such other defendants be natural persons or corporations.

2. Husband and Wife

In an action based upon personal injuries, a subsequent intermarriage between the plaintiff and the defendant before trial terminates the cause of action as to such defendant and operates to bar the action as to him.

3. Venue

The abatement of an action based on tort, as to the defendant through the residence of whom the court acquired jurisdiction of the case, by reason of his marriage to the plaintiff, works an abatement of the action for all purposes.

4. Abatement and Revival

Where, by reason of the death pendente lite of the defendant through whom the court acquired jurisdiction of the case, the case abates as to such defendant, the court's jurisdiction of the case as to the other defendants, if the cause of action survive as to them, is not affected.

Error to Circuit Court, Wood County. Action of trespass on the case for personal injuries by Velma Taylor Staats against the Co-Operative Transit Company and another. To review an order dismissing the action the plaintiff brings error and the Co-Operative Transit Company cross-assigns error.

Reversed and remanded.

Robert E. Bills and Wm. Bruce Hoff, for plaintiff in error.

Robert B. McDougle and Jay T. McCamic. for defendants in error.

Rose, Judge:

Velma Taylor Staats prosecutes this writ of error to an order of the Circuit Court of Wood County by which her action of trespass on the case against Co-Operative Transit Company, a corporation, as surviving defendant, was dismissed.

In the month of May, 1938, an automobile owned and then being driven by T. C. Staats on the streets of Wheeling, in Ohio County, and who was accompanied by the plaintiff, then Velma Taylor, and her sister, as guest passengers, collided with a street car owned and operated by Co-Operative Transit Company, a corporation, resulting in substantial injury to the plaintiff.

Charging that the accident and injury resulted from the joint and concurring negligence of Staats and the Transit Company, the plaintiff instituted an action of trespass on the case against them jointly in the Circuit Court of Wood County, in which she and the defendant Staats resided.

The Transit Company filed in the case two pleas in abatement. In plea No. 1, as subsequently amended, it is alleged that the Transit Company had its principal office in the City of Wheeling, and the County of Ohio, and that its president was a resident of that county; that the company had never done any business or had any officer or agent in the county of Wood; that no part of the alleged cause of action arose in that county; and further, charged that the defendant Staats and the plaintiff at and before the time of said accident were, and ever since have been, "on terms of greatest friendliness"; that the plaintiff had no intention of collecting any judgment which might be recovered in the case against said Staats, who, it was alleged, was joined as co-defendant "solely for the fraudulent purpose of obtaining jurisdiction upon him in Wood County and the laying of venue in said County so as to acquire jurisdiction over the defendant Co-Operative Transit Company and depriving said Co-Operative Transit Company of its right to have action against it tried in Ohio County". Plea in Abatement No. 2 set up the same facts as to the Transit Company's office, place of business and the residence of its officers and agents, with the additional allegation that the defendant, T. C. Staats, "at the commencement of the said action was and from thence hitherto has been and still is a non-resident of the State of West Virginia and not a resident of the County of Wood", and that the "cause of action herein sued on did not, nor did any part thereof, arise in the said County of Wood", but in Ohio County.

A demurrer to each of these pleas in abatement was interposed and overruled, and the issues arising thereon, by agreement of the parties, were tried to the court in lieu of a jury, resulting in a finding and judgment in favor of the plaintiff.

Subsequently, on the 10th day of November, 1939, the Transit Company filed what it denominates a "plea of intervening coverture", in which it is shown that on the 21st day of March, 1939, and after the institution of this action, the plaintiff and defendant Staats were married to each other, and adding, as a conclusion therefrom, that the legal effect of such marriage was to abate the action as to said Staats, and that inasmuch as he was the party defendant whose residence in the County of Wood gave the court jurisdiction of the case, such abatement as to him operated also to abate the action as to the Transit Company. A demurrer to this plea was sustained by an order entered on the 20th day of May, 1940.

On the 22nd day of November, 1940, a demurrer to the declaration was interposed by the Transit Company, which was overruled on the 28th day of December, 1940.

On the 28th day of April, 1941, the Transit Company suggested on the record the death of the defendant, T. C. Staats, and thereupon moved that the case be dismissed as to it on the ground that the action and cause of action having abated as to the defendant Staats by his death, there remained in the case no defendant residing in Wood County, thus causing the court to lose jurisdiction of defendant Transit Company and of the case. This motion the court sustained, and this writ of error followed.

The plaintiff assigns a single alleged error, namely, the dismissal of the action as to the Transit Company upon the death of its co-defendant, Staats. But the Transit Company cross-assigns error on two grounds: (1) that the court erred in holding that the Transit Company could be proceeded against in Wood County on the sole ground that its co-defendant and alleged joint tort-feasor was a resident of that county; and (2) that it was error to refuse to dismiss the action as to both defendants upon the intermarriage of the plaintiff with the defendant Staats, the claim being that such intermarriage abated the action as to the defendant, whose residence in Wood County gave jurisdiction to the court, and that after the case was abated as to the resident defendant, it could no longer be maintained as to the other. Chronologically, the questions raised by the cross-assignment of errors arose before the action complained of by the plaintiff in error and will be first considered.

We cannot accept the conclusion that the Transit Company was not properly brought into the action instituted in Wood County. The controlling statute, Code, 56-1-1, provides that:

"Any action or other proceeding at law or suit in equity, except where it is otherwise specially provided, may hereafter be brought in the circuit court of any county:

(a) Wherein any of the defendants may reside, except that an action of ejectment or unlawful detainer must be brought in the county wherein the land sought to be recovered, or some part thereof, is; or

(b) If a corporation be a defendant, wherein its principal office is, or wherein its mayor, president or other chief officer resides; * * *."

The defendant Staats was a resident of Wood County; he was properly proceeded against there; and, the action having been properly brought against him in that county, the other defendant could be brought in regardless of the location of its office, and places of business or the residences of its officers or agents. But it is argued that since it is not possible for a corporation to "reside" in a county, subsection (a) cannot apply to corporations, but only to defendants who are natural persons. This construction might control if both the defendants were corporations, as then neither would be capable of having a residence in a county. But the complete statute, in effect, says that if any defendant can and does reside in a county, an action, suit or other proceeding against him and others may be brought in that county. The defendant Staats did reside in Wood County, and this action was instituted in that county. This is all that the law requires to determine the place for bringing the action, and the corporate defendant must submit to the venue thus established.

It is further argued, however, that venue of an action, suit or proceeding as to a corporation is fixed exclusively by subsection (b) above quoted, and by section 2 of the same article which reads as follows: "An action, suit or proceeding may be brought in any county wherein the cause of action, or any part thereof, arose, although none of the defendants reside therein, in the following instances: (a) When the defendant, or if more than one defendant, one or more of the defendants, is a corporation; * * *."

But it will be seen at once that subsection (b), sections 2, and 2 (a), merely provide the county in which an action, suit or other proceeding shall be brought in a case in which a corporation is the jurisdiction-giving defendant. Thus the plaintiff may proceed in the county of the residence of a defendant who is capable of having a residence therein, or in the county in which a corporation defendant has its principal office, or in which certain of its officers reside, or where the cause of action arose. He may proceed against a natural person in one county or against a corporation defendant in another, and having instituted a proceeding against either in a proper county, the other may be brought in from any place in the state. Judge Poffenbarger, speaking for the Court, in McConaughey & Co. v. Bennett's Ex'rs., 50 W. Va. 172, 40 S. E. 540, 542, stated the rule thus: "It is a well settled rule that where the circuit court of a county...