State ex rel. Northwest Arkansas Produce Co., Inc. v. Gaertner

• Decision Date: 26 September 1978
• Docket Number: No. 39985,39985
• Citation: 573 S.W.2d 391
• Parties: STATE of Missouri ex rel. NORTHWEST ARKANSAS PRODUCE COMPANY, INC., a corporation, and James Neil Harshman, Relators, v. The Honorable Carl R. GAERTNER, Judge of the Circuit Court of the City of St. Louis, State of Missouri, Respondent. . Louis District, Division Two
• Court: Missouri Court of Appeals

Page 391

573 S.W.2d 391

STATE of Missouri ex rel. NORTHWEST ARKANSAS PRODUCE COMPANY, INC., a corporation, and James Neil Harshman, Relators, v. The Honorable Carl R. GAERTNER, Judge of the Circuit Court of the City of St. Louis, State of Missouri, Respondent.

No. 39985.

Missouri Court of Appeals, St. Louis District, Division Two.

Sept. 26, 1978.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Nov. 17, 1978.

Application to Transfer Denied Dec. 18, 1978.

Sam P. Rynearson, Gerre S. Langton, Evans & Dixon, St. Louis, for relators.

James E. Hullverson, Stephen H. Ringkamp, Hullverson, Hullverson & Frank, Inc., St. Louis, for respondent.

STEPHAN, Judge.

This is an original proceeding instituted by the filing of a petition for a writ of prohibition praying that this court command the Honorable Carl R. Gaertner, Judge of the Circuit Court of the City of St. Louis, to dismiss and to refrain from proceeding further in a certain action pending before him. Because of the nature of the relief sought, an alternative writ of mandamus was issued. Nevertheless, the matter was briefed and argued as a proceeding in prohibition; and, as a result of our study of the briefs and deliberations, we believe such procedure was correct. We now take the matter as one in prohibition and issue a permanent writ, as hereinafter provided.

The underlying cause of action is one for damages brought by Jo Anna Brown (plaintiff) against relators Northwest Arkansas Produce Company and James Harshman. Plaintiff's petition alleged that she was injured in Madison County, Missouri, through the negligent operation of Northwest's truck by its employee, Harshman. None of the parties is a Missouri resident: plaintiff is an Arkansas resident; Northwest is an Arkansas corporation ¹ ; Harshman is a resident of Michigan. Service of process was accomplished on Northwest in Arkansas by registered mail, the papers originally having been served on the Secretary of State of Missouri as Northwest's agent. Harshman was served by a pluries summons in a similar manner. Relators contend that such service was had pursuant to Missouri's statutes relating specifically to actions against nonresident motorists (the Nonresident Motorist Act), §§ 506.200 et seq., RSMo 1969. Respondent contends that, although service was consistent with the provisions of that statute, it was equally consistent with Supreme Court Rules 54.08 and 54.15.

Relators argue that venue of the action properly lies in Madison County, where the accident occurred. In its present form, the venue provision of the Nonresident Motorist Act, § 506.290, provides that:

"Any suit under the provisions of sections 506.200 to 506.320 shall be filed in the county in which the cause of action accrues or in the county where the plaintiff resides, and if there be other defendants in such action who are residents of the state of Missouri, then such action shall be brought in any county in which any one of said defendants reside, or in the county within which the plaintiff resides and the defendant may be found."

Thus, given the facts of the underlying case, if the plaintiff were restricted to asserting her cause of action under the provisions of §§ 506.200 et seq. venue would properly lie only where her cause of action accrued, i. e. Madison County. Respondent contends, however, that this section is not the exclusive venue provision in this situation because of § 506.280 which states that:

"The foregoing provisions relative to service of process in suits against nonresidents shall not be deemed to prevent actual personal service in this state upon a nonresident in the time, manner, form, or under the conditions provided for service on residents, and nothing contained in sections 506.200 to 506.320 shall be construed as in any manner limiting, affecting or repealing any cause of action, right, or method of procedure now provided by law, but the provisions of said sections are cumulative and in addition to any such existing right, remedy, cause of action, and method of procedure."

Respondent argues that § 506.280 operates to permit the application of Missouri's general venue provision, § 508.010. In pertinent part, that section provides that:

"Suits instituted by summons shall, except as otherwise provided by law, be brought: . . .

(4) When all the defendants are nonresidents of the state, suit may be brought in any county in this state; . . . "

Both parties in ably written briefs urge upon this court numerous precepts of statutory construction, the object of all of which is to attempt to establish the probable intent of the General Assembly in the case of ambiguity within a statute or among different statutes. Although all of these principles are useful, we think the issue at hand is resolved by an examination of the legislative framework within which this case reposes.

Nonresident motorist statutes began to appear shortly after the automobile itself, ² survived many constitutional attacks, ³ and came to be founded upon the legal fiction that by using the public roads a nonresident constructively consented to being sued in the foreign state. Missouri adopted a comprehensive act of this nature in 1941, L.1941, p. 435 et seq., which, as amended, appears in §§ 506.200 through 506.320, RSMo 1969. Jurisdiction of the courts of this state over nonresidents is triggered by an "agreement" articulated in § 506.210, which reads as follows:

"The use and operation of a motor vehicle or trailer in this state on the public highways thereof by a person who is a nonresident of this state shall be deemed:

(1) An agreement by him that he, his executor, administrator or other legal representative shall be subject to the jurisdiction of the courts of this state in all civil actions and proceedings brought against him, his executor, administrator or other legal representative by either a resident or a nonresident plaintiff, for damages to person or property, including actions for death, growing or arising out of such use and operation; and

(2) An appointment by such nonresident, his executor, administrator or other legal representative of the secretary of state of Missouri as his lawful attorney and agent upon whom may be served all process in suits pertaining to such actions and proceedings;

(3) An agreement by such nonresident that any process in any suit so served shall be of the same legal force and validity as if personally served in this state. " ⁴

As enacted in 1941, the venue provision of the Act read as follows:

"Any suit under the provisions of this act shall be filed in the County in which the cause of action accrues and if there be other defendants in such action who are residents of the State of Missouri, then such action shall be brought in any county in which any one of said defendants reside, or in the County within which the plaintiff resides and the defendant may be found."

During the course of the Sixty-fifth General Assembly in 1949 a measure, Senate Bill 217, was introduced which would have altered the wording of the foregoing section so as to specifically provide "Any suit under the provisions of this act shall be filed in any county in this state . . . " During the legislative process, Senate Bill 217 was amended to delete the reference to venue "in any county" so that the section reads substantially as it does now: "Any suit under the provisions of this act shall be filed in the county in which the cause of action accrues or in the county where the plaintiff resides . . . " Such rejection of the concept of venue "in any county" is an unusually clear expression of legislative intent: the General Assembly in effect declared that venue of suits brought under §§ 506.200 through 506.320 shall, in the case of a nonresident plaintiff, be limited to the county where the cause of action accrued or the county of a resident defendant's domicile. ⁵

It is argued on behalf of respondent that the service obtained here is equivalent to that contemplated by the general venue statute, § 508.010. In exploring that contention, we look first to whether plaintiff has a cause of action other than that contemplated by §§ 506.200 through 506.320.

As a result of judicial decisions which liberalized earlier views of due process requirements relating to extraterritorial in personam jurisdiction, ⁶ many states have adopted "single act" long arm statutes which provide that certain conduct of a nonresident person or corporation subjects it to jurisdiction of the courts of the state where the conduct occurs or causes damage. Missouri did so in 1967. Senate Bill 130 of the Seventy-fourth Session of the General Assembly was composed of three sections: the first provided, as relevant here, that any person or corporation who individually or through an agent commits a tortious act within this state thereby submits such person or corporation "to the jurisdiction of the courts of this state as to any cause of action arising from" such tortious act, § 506.500; the second section provides the method for extraterritorial service of process, § 506.510; and the third section authorizes a personal judgment "(w)hen jurisdiction over a person, firm, or corporation who is outside this state is acquired In accordance with the provisions of sections 506.500 and 506.510 ". (Emphasis added.) The third section also provides for default judgments. § 506.520. Because of the significance of § 506.510 to the instant case, we set it forth verbatim:

"1. Service of process upon any person who is subject to the jurisdiction of the courts of this state, as provided in section 506.500, may be made by personally serving the process upon the defendant outside this state, or upon a corporation by serving the process upon a managing officer or any person or corporation who shall be designated as a registered agent by such corporation in any of the several states, and shall have the same force and effect as though the process had been served within...