Temple v. Dugger

Decision Date14 March 1933
Docket NumberCase Number: 21512
Citation21 P.2d 482,1933 OK 175,164 Okla. 84
CourtOklahoma Supreme Court
PartiesTEMPLE v. DUGGER
Syllabus

¶0 1. Carriers--Venue of Actions Against Transportation Companies.

A cause of action against a transportation company may be instituted in any county through which or into which the lines of road pass.

2. Same--Motor Carrier a "Transportation Company."

A motor carrier as defined in section 3692, O. S. 1931, is a transportation company as defined in section 113, O. S. 1931 (sec. 203. C. O. S. 1921).

3. Action--Joinder of Causes of Action on Contract and for Tort.

A cause of action on contract may be joined in separate count with cause of action on tort when both causes of action arise out of the same transaction and where all parties to the action are affected.

4. Appeal and Error--Joint Assignment of Error.

A joint assignment of error must be good as to all who join in it or it will be good as to none.

5. Automobiles--Action Against Motor Carrier for Wrongful Death--Company Issuing Liability Insurance Bond Held Properly Joined as Defendant.

In an action against a motor carrier operating under the jurisdiction of the Corporation Commission, which action is based on alleged negligence of motor carrier, it is not error to join in said action the insurance company which executes a liability insurance bond pursuant to section 3697, O. S. 1931.

6. Appeal and Error--Sufficiency of Conflicting Evidence to Support Verdict.

Where a general verdict has been rendered and judgment rendered on the verdict, and the evidence is conflicting, and there is competent evidence to sustain the verdict this court will not disturb the verdict and substitute its judgment for that of the jury.

Appeal from District Court, Dewey County; T. P. Clay, Judge.

Action by Nellie M. Dugger, administratrix of estate of J. A. Dugger, against A. T. Temple and others. Judgment for plaintiff, and defendants appeal. Affirmed.

Ledbetter, Stuart, Bell & Ledbetter, for plaintiffs in error.

Minton & Minton and Freeling & Box, for defendant in error.

BAYLESS, J.

¶1 Nellie M. Dugger, administratrix of the estate of J. A. Dugger, deceased, hereinafter referred to as plaintiff instituted an action in the district court of Dewey county, Okla., against A. T. Temple and T. W. Temple, copartners doing business under the firm name and style of T. & T. Transit Company, hereinafter referred to as bus company, and R. M. Thompson, a bus driver for the bus company, hereinafter referred to as driver.

¶2 The plaintiff sought to recover damages for the death of J. A. Dugger, deceased, alleged to have been caused by the negligent operation of a bus owner by the bus company and driven by the driver. Thereafter the Oklahoma Indemnity Corporation, a corporation, and the Southwest Indemnity Corporation, a corporation, its successor, as the insurance carrier of the bus company, were made parties to the action, and the cause was tried upon the issues framed by the amended petition and the answers of all of the defendants. Judgment was for the plaintiff for $ 6,250, and defendants prosecute this appeal. The parties will be referred to as they appeared in the trial court.

¶3 The defendants present four propositions for review, the first being as follows:

"The court erred in overruling the motion and special appearance and denial of jurisdiction of the defendants A. T. Temple, T. W. Temple and R. M. Thompson."

¶4 We direct our consideration to the first proposition of the defendants. The collision, resulting in the death of J. A. Dugger, occurred in Major county, Okla. The defendants, owning and operating the bus company, and the driver were all residents of Harper county. This action was instituted in Dewey county, and summons was directed to the sheriff of Harper county and served upon the defendants Temple individually and as copartners, and upon Thompson, in Harper county. Each of these defendants filed a special appearance and denial of jurisdiction. The denial of jurisdiction of the persons of the defendants is based upon the nonresidence of the defendants in Dewey county or a lack of venue of the action. It is the contention of the defendants that, being individuals, and residents of Harper county, Okla., the venue of the action is that provided in section 117, O. S. 1931 (sec. 207, C. O. S. 1921), which is as follows:

"Every other action must be brought in the county in which the defendant or some one of the defendants resides or may be summoned; except actions against makers of notes, claims, or other indebtedness which have been assigned, sold or transferred by or from the original payee or obligee, which actions against such original maker of such notes, claims, or indebtedness can only be brought in the county in which the said maker of such note, claim or indebtedness or some one of the original makers of such note, claim or indebtedness resides. Provided, however, this section shall not in any way change or limit section 4671 of the Revised Laws of Oklahoma, 1910."

¶5 The plaintiff contends that the venue of the action is governed by section 113, O S. 1931 (section 203, C. O. S. 1921), as follows:

"Actions may be commenced against any transportation or transmission company in the county where any person resides upon whom service of summons is authorized to be made, irrespective of the order in which such persons are named in this chapter, and irrespective of the residence of any superior officer or authorized person upon whom service of summons may be had; or in the county where the cause of action, or some part thereof, may have accrued; or, in any county through which or into which the lines of road or any part of the structure of such company may be, or passes; and the plaintiff may elect in which county he will bring the action."

¶6 The evidence introduced by the defendants Temple and Thompson, in support of their respective denials of jurisdiction, shows that A. T. Temple and T. W. Temple, acting as copartners, were operating a bus line through certain counties, in the western part of this state, including Dewey county, under a permit issued by the Corporation Commission of the state of Oklahoma in the exercise of its jurisdiction over transportation companies. We hold that the legal status of the defendants Temple, either as individuals or a copartnership, is immaterial, for we think the question has been heretofore determined by this court.

¶7 The case of Ex parte Tindall, 102 Okla. 192, 229 P. 125, is one wherein the question involved was whether or not an individual operating one bus could be classified as a transportation company, and the court in that case held:

"Section 34, article 9, of the Constitution, contains the following definition:
"'The term "public service corporation" shall include all transportation and transmission companies, all gas, electric light, heat and power companies, and all persons authorized to exercise the right of eminent domain, or to use or occupy any right of way, street, alley, or public highway, whether along, over, or under the same, in a manner not permitted to the general public; the term "person" as used in this article shall include individuals, partnerships and corporations, in the singular as well as plural number.'
"'Public service concerns' of the state are subject to regulation and control by the state. Sections 18-34, article 9, of the Constitution. Therefore, petitioner, although a private individual, and as such entitled to all the privileges and immunities accorded to all private citizens, entitled to equal protection with all private citizens as to the private rights and privileges inuring to citizenship, as such, yet when he comes before the law as a 'public service entity,' seeking to render a public service for hire and profit, he thereby, so far as his business is concerned, and so far as his right to operate such business is concerned, absolves himself from the distinct rights of a private citizen, and stands in the class with other 'public service enterprises.'"

¶8 A "transportation company" is defined in section 34, art. 9, of the Constitution of the state of Oklahoma as follows:

"As used in this article, the term 'transportation company' shall include any company, corporation, trustee, receiver, or any other person owning, leasing, or operating for hire, a railroad, street railway, canal, steamboat line, and also any freight car company, car association, express company, sleeping car company, car corporation, or company, trustee or person in any way engaged in such business as a common carrier over a route acquired in whole or in part under the right of eminent domain, or under any grant from the government of the United States. * * *"

¶9 We hold that, as to the defendants Temple, their business was that of a transportation company and the venue of the action as to them was properly laid in Dewey county, Okla., one of the counties, "* * * through which or into which the lines of road or any part of the structure of such company may be, or passes * * *" (section 113, O. S. 1931). The special appearance and denial of jurisdiction as to the defendants Temple was properly overruled. The venue of the action as to the defendants Temple, part of the defendants to the action, being fixed in Dewey county, and they having been legally served with summons, as required by law, the court had jurisdiction of the action to authorize it to send into any other county in the state to serve any other defendant who was a proper party to the action. Section 117, O. S. 1931 (section 207, C. O. S. 1921), supra. Therefore, the court properly overruled the special appearance and denial of jurisdiction of the defendant Thompson.

¶10 The defendants present their second assignment of error, which is as follows:

"The court erred in overruling the separate motion of the defendants Temple and Temple and R. M. Thompson, to dismiss on account of misjoinder of parties, and the court erred in overruling the de
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39 cases
  • James v. Young
    • United States
    • North Dakota Supreme Court
    • July 29, 1950
    ...That principle has been upheld in many Oklahoma cases even where the policies are not as strong as the case at bar. Temple v. Dugger, 164 Okl. 84, 21 P.2d 482; Jacobsen v. Howard, 164 Okl. 88, 23 P.2d 185; Graves v. Harrington, 177 Okl. 448, 60 P.2d 622; Enders v. Longmire, 179 Okl. 633, 67......
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    ...the bond limits the liability imposed by the statute, except as to amount. Jacobson v. Howard, 164 Okla. 88, 23 P.2d 185; Temple v. Duggar, 164 Okla. 84, 21 P.2d 482; Enders v. Longmire, 179 Okla. 633, 67 P.2d 12; Curtis v. Michaelson (Iowa) 219 N. W. 49. ¶10 Again we are required to advert......
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    ...in permitting the joinder of the insurance carrier as a party defendant. Defendants admit that beginning with the case of Temple v. Dugger, 164 Okl. 84, 21 P.2d 482, that this court has consistently held the joinder of an insurance carrier to be proper where the vehicle involved is operatin......
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    ...the bond limits the liability imposed by the statute, except as to amount. Jacobsen v. Howard, 164 Okl. 88, 23 P.2d 185; Temple v. Duggar, 164 Okl. 84, 21 P.2d 482; Enders v. Longmire, 179 Okl. 633, 67 P.2d Curtis v. Michaelson, 206 Iowa 111, 219 N.W. 49. Again we are required to advert to ......
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