Tracy v. Liberty Oil Co.
| Decision Date | 24 June 1929 |
| Docket Number | 39611 |
| Citation | 226 N.W. 178,208 Iowa 882 |
| Parties | JOHN R. TRACY, Appellee, v. LIBERTY OIL COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Webster District Court.--H. E. FRY, Judge.
Action to recover damages, predicated on the value of certain hogs whose death is alleged to have been caused by the feeding of a "stock food" furnished to plaintiff by the defendant. The manufacturer and distributor of the food was a party defendant, as well as its agent, who fed part of the food to plaintiff's hogs. There was a directed verdict in favor of the agent. There was a verdict and judgment for the plaintiff against the manufacturer and distributor, Liberty Oil Company. The defendant company appeals.
Reversed.
J. A Dyer and Kelleher & Mitchell, for appellant.
Mitchell & Mitchell and Price & Burnquist, for appellee.
DE GRAFF, J.
I.
Plaintiff is a farmer and hog raiser in Webster County, Iowa. The defendant (appellant), Liberty Oil Company, is a corporation with its principal place of business in Des Moines, Iowa, and is engaged in the manufacturing and distributing of a stock food known as "Life Guard Mineral." In October, 1925, W. D. Rudkin was agent and district manager of said company in certain territory, including Webster County, Iowa. One John Dunn was a local agent of the company, residing near Clare, Webster County, Iowa. Rudkin was named as a codefendant, but the trial court, upon the conclusion of all the evidence, directed a verdict in his favor. As to this defendant, the cause of action, therefore, has reached a terminal point. On the 4th day of October, 1925, about 153 of plaintiff's hogs showed some symptoms of sickness, whereupon plaintiff called a veterinarian, who prescribed that the hogs be "taken off feed" for a few days. Two days later, Rudkin called at plaintiff's farm, and induced the plaintiff, as alleged, to feed, and allow Rudkin to feed, the hogs a quantity of "Life Guard Mineral" supplied by the appellant. Part of this "mineral" plaintiff had purchased through the local agent, Dunn, or the agent Rudkin, and a part had been purchased through the same agency in conjunction with his brother-in-law. It is the claim of the plaintiff that all of the hogs which were fed the "Mineral" died within a few days.
Although there are divers points or propositions presented by appellant on this appeal, there is one of signal significance, which has to do with the motion of the defendant Liberty Oil Company for change of place of trial, on the theory that the Liberty Oil Company was suable in Polk County, the place of its residence. This motion was overruled by the trial court. Did the trial court rule correctly? This is a personal action, and except as otherwise provided, must be brought in a county in which "some of the defendants actually reside." Section 11049, Code of 1924. The one statutory exception to which attention must be directed is Section 11046, Code of 1924. This section reads:
"When a corporation * * * has an office or agency in any county for the transaction of business, any actions growing out of or connected with the business of that office or agency may be brought in the county where such office or agency is located."
This has been the statute law of Iowa since the Revision of 1860 (Section 2801), with the exception that the word "actions" in the present section previously read "suits." In brief, this section has reference to the commencement of an action under the conditions named therein.
It is further insisted by appellant that Section 11079, Code of 1924, precludes a recovery in this case, because the defendant Rudkin was not served in Webster County. In the instant case, however, we are not concerned with the matter of service, for the reason that both defendants (principal and agent) appeared generally, filed answers, and submitted to trial. Any question, therefore, as to how or where the defendants were served, or if served at all, is wholly immaterial. The record discloses that affidavits were attached by the defendant Liberty Oil Company to its motion for a change of venue. The primary ground of the motion was that the business giving rise to this action did not grow out of the agency of Rudkin, for the reason that, at the time of the commencement of this suit, he (Rudkin) was not an agent of said defendant company in Webster County, and that Webster County had not been in his territory since October 28, 1926. This particular recital in said affidavit is not controverted by the appellee; but a careful reading of the said affidavits fail to disclose any denial that John Dunn, residing at Clare, in Webster County, was the agent of appellant at the time of the commencement of this action. In brief, there is no denial in the affidavits of the existence of an agency in Webster County, but only a denial that Rudkin was an agent of the company in Webster County when the action was commenced.
Original notice was served on the Liberty Oil Company in Polk County, Iowa, on April 25, 1927, and return of service was filed in the office of the clerk of the court of Webster County, Iowa. It is further shown that Rudkin was served with an original notice of this suit at Scranton, Greene County, Iowa, in April, 1927, but that at said time he was no longer the agent of the defendant Liberty Oil Company in Webster County. As hereinbefore stated, we are not primarily concerned with the service on the parties; nor need we determine whether an action may be maintained in the county where there was an agency out of which the transaction arose, which agency had been terminated at the time of the commencement of this action. The simple question is, Did appellant, by his affidavits attached to his motion for change of venue, establish the fact that no agency existed? The case of Ockerson v. Burnham & Co., 63 Iowa 570, 19 N.W. 676, is controlling. In that case, an agent sought to recover damages from his principal for a violation of a written contract. It was admitted by the defendant that the plaintiff had been the agent of the defendants at Red Oak, Montgomery County, Iowa, and that the agent was conducting the business of the defendant: to wit, the disposition of flaxseed in Montgomery County. Plaintiff sought to recover his commission of eight cents per bushel. It was ruled that the defendant might be held in the county where the agency was maintained, but this ruling had no relation to the fact that such agency had been terminated. The Ockerson case, supra, presented two questions: (1) Had defendants an agency in Montgomery County at the time the suit was commenced? (2) Did the action grow out of or was it connected with the agency? Both questions, under the record in that case (which we have taken the pains to examine), must be answered in the affirmative. These questions were so answered in the opinion of this court. The record discloses an admission on the part of Burnham & Company, the defendant, that, at the time of the commencement of the action, they had an agent in Montgomery County, and that this agent was the successor of the plaintiff Ockerson, who was the former agent in said county. The record fails to show upon whom service of suit was made, but it is clear that the defendant had an agency at said time in said county. Sufficient to state that Montgomery County was the proper venue.
If there is an agency in a county for the transaction of the principal's business, it is not necessary that the agency have a permanent office or a "room" in which he offices. Lake v. Western Silo Co., 177 Iowa 735, 158 N.W. 673; Kabrick v. Case Thresh. Mach. Co., 180 Iowa 598, 163 N.W. 368. When the instant defendant entered its appearance in Webster County and filed its motion for a change of venue, that act must be viewed as a voluntary appearance; and it may be observed that the motion as filed cannot be viewed as a special appearance in any sense, as defined by statute. Section 11088, Code of 1924. The motion of transfer invoked the jurisdiction of the court to act thereon. If the ground of the motion was not good, then clearly the defendant was in Webster County court for every purpose. We hold, as did the trial court, that the motion was not good, and that, therefore, the trial court had jurisdiction of both the subject-matter and the person.
II. Appellant contends that there is no evidence of the market value of plaintiff's hogs in the condition they were in on October 6th, and that the evidence as to the market value of well hogs is not the probative measure of value in this case. The trial court, in the instruction given to the jury in relation to the quantum of plaintiff's recovery, stated that the measure of damage is "the fair, reasonable market value in the vicinity of Barnum, Iowa, October 6, 1925, immediately after the plaintiff fed the Life Guard Mineral to the hogs that died, the death of which you find was directly and proximately caused by the feeding of Life Guard Mineral, taking into consideration the condition that said hogs were in at that specific time." We discover no basis for criticism of the quoted instruction. The question and the challenge are directed to the fact that the evidence of the value of these hogs has reference to sound, healthy, marketable hogs, and further, that at least two days prior to the administration of the Life Guard Mineral, a large number of these hogs were sick. The undisputed evidence shows that, prior to the feeding of the Life Guard Mineral to plaintiff's hogs, a large number of them were sick, and received the attention of a veterinarian.
When we turn to the record bearing on the challenged evidence and the character of the questions upon value, what do we find? The value witnesses were asked concerning the fair market value...
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