Terminal Oil Co. v. Gautney, s. 4-6458, 4-6459.

• Decision Date: 23 June 1941
• Docket Number: Nos. 4-6458, 4-6459.,s. 4-6458, 4-6459.
• Citation: 152 S.W.2d 309
• Parties: TERMINAL OIL CO. v. GAUTNEY, Judge.
• Court: Arkansas Supreme Court

152 S.W.2d 309

TERMINAL OIL CO. v. GAUTNEY, Judge.

Nos. 4-6458, 4-6459.

Supreme Court of Arkansas.

June 23, 1941.

Prohibition to Circuit Court, Poinsett County; J. F. Gautney, Judge on exchange.

Proceeding upon the application of the Terminal Oil Company for a writ of prohibition against J. F. Gautney, Judge.

Writ of prohibition awarded.

J. G. Waskom, of Marked Tree, and Arthur L. Adams, of Jonesboro, for appellant.

Sam T. & Tom Poe, Glenn Walther, and Ward Martin, all of Little Rock, for appellee.

McHANEY, Justice.

Petitioner is a domestic corporation with its principal office and place of business in Osceola, in Mississippi County. It has a resident agent for service of summons at Marked Tree, in Poinsett County. Two personal injury actions were brought against it in Poinsett County, service being had on said resident agent, on October 16, 1940. In one of said actions H. F. Gray was the plaintiff and in the other Margaret Anne Gray, a minor by said H. F. Gray as her father and next friend, was plaintiff. Each complaint alleged that the plaintiff is a resident of Pulaski County, and that the cause of action arose out of a collision between a truck of petitioner and an automobile in which the plaintiffs were riding, in Osceola, in Mississippi County, on August 27, 1937. Each complaint alleged serious and permanent injuries, and prayed damages in large amounts, on account of the alleged negligent operation of said truck.

On the return day of the writ, petitioner appeared specially in each case and filed a motion to dismiss on account of the provisions of Act 314 of 1939, generally referred to as the "Venue Act". Said motions were argued and submitted to the court, the regular circuit judge sitting and presiding, and they were taken under advisement. At the next regular term of said court, which convened on May 12, 1941, at which the respondent was presiding on exchange, said motions were again argued to respondent who made and entered an order overruling same. Petitioner then presented its petition for writs of prohibition in the two cases which have been consolidated and briefed together.

We think the court erred, not in overruling the motions to dismiss, but in not treating them as motions to change the venue and in not transferring them to either Pulaski County, where plaintiffs reside, or did reside at the date of the injury, or to Mississippi County, where the injury occurred. The fact that the injury occurred in 1937 and that the suit was brought in October 1939, before said Act 314 became effective because it was referred to the people by petition and was voted upon and adopted November 5, 1940, does not alter the situation. In the very recent case of Fort Smith Gas Co. v. Kincannon, Judge, Ark., 150 S.W.2d 968, 970, April 14, 1941, the exact point was decided against the respondent's contentions. There, the complaint was filed in ...