Viking Freight Company, Inc. v. Keck

Decision Date02 June 1941
Docket Number4-6386
Citation153 S.W.2d 163,202 Ark. 656
PartiesVIKING FREIGHT COMPANY, INC. v. KECK, JUDGE
CourtArkansas Supreme Court

Prohibition to Mississippi Circuit Court, Chickasawba District; G. E. Keck, Judge; writ denied.

Writ denied.

Ivy & Nailling, for appellant.

Ned A. Stewart and Reid & Evrard, for appellee.

OPINION

SMITH, J.

On the morning of March 22, 1940, a collision occurred on highway 61 in Pemiscot county, Missouri, between a truck and trailer belonging to the Viking Freight Company, Inc., a foreign corporation, petitioner here, and a truck and trailer belonging to B. L. Holmes and driven by O. B. Carpenter. A M. Sangalli was riding in the cab of the Holmes truck. He brought suit in the circuit court for the Chickasawba district of Mississippi county to recover damages to compensate the personal injury which he alleges he received through the negligence of Roy Myers, the driver of petitioner's truck. Sangalli is a resident of this state. The summons in the case was served upon John W. Newman petitioner's designated agent for service of process, in the city of Little Rock, where Newman resides and maintains his office.

A stipulation was filed containing the following recitals. Sangalli is a resident of the state of Arkansas. The defendant freight company is a Missouri corporation, having its office and principal place of business in St. Louis, in said state, and has no office, officer or agent in the Chickasawba district of Mississippi county, nor in the state of Arkansas, except its designated agent for service of process, upon whom summons was served.

The cause of action alleged occurred on United States highway 61 in Pemiscot county, Missouri. The freight company operates a line of trucks between the city of St. Louis, Missouri, and the city of Memphis in the state of Tennessee, through the Chickasawba district of Mississippi county, and through Pemiscot county, Missouri, along United States highway 61, and the alleged cause of action occurred on that highway. The city of Blytheville is the court seat of the Chickasawba district of Mississippi county, Arkansas, and is the most convenient court seat to the scene of the collision.

The defendant freight company, hereinafter referred to as petitioner, appeared specially and filed a motion to quash the service of summons, upon the ground that the circuit court for the Chickasawba district of Mississippi county, Arkansas, was without jurisdiction of the cause of action. The circuit court overruled this motion, and petitioner has applied here for a writ of prohibition, the right to which is dependent upon the question whether the circuit court has jurisdiction to try the case.

The cause of action is predicated upon § 1394, Pope's Digest, which reads as follows: "An action against a railroad company, or an owner of a line of mail stages or other coaches, for an injury to person or property upon the road or line of stages or coaches of the defendant, or upon liability as a carrier, may be brought in any county through or into which the road or line of stages or coaches of the defendant upon which the cause of action arose passes."

It is insisted, upon the authority of the opinion in the case of The Bryant Truck Lines, Inc. v. Nance, 199 Ark. 556, 134 S.W.2d 555, that prohibition should be granted. A careful examination of that opinion and of the transcript and briefs upon which the opinion was based discloses that the Bryant case was not predicated upon § 1394, Pope's Digest. None of the briefs contain any reference to it, and it is not certain that the provisions of this section of the statute would have applied if invoked, because the complaint alleged, and the testimony tended to show, that the truck company "makes with its trucks regular and special trips." The act applies to a railroad company or to the owner of "a line of mail stages or other coaches" having definite lines of operation, and localizes cases against such operators to the counties through which they operate. Section 1 of act 70 of the acts of 1935, appearing as § 1377, Pope's Digest, applies also to such operators, but, in addition, applies to all other operators of trucks, busses, etc., whether operating on fixed lines or not.

A re-examination of the briefs as well as the transcript in the Bryant case, supra, makes certain the fact that the plaintiff was not asserting any right to sue conferred by § 1394, Pope's Digest. The truck company was sued as a foreign corporation without reference to that section, and it was attempted also to secure service by serving summons upon the driver of the truck, as shown by the sheriff's return, as stated in that opinion. That opinion shows why service under § 1377, Pope's Digest, was insufficient in that case, and also why service upon the designated agent in Poinsett county in a suit pending in White county was insufficient if the truck company was sued as a foreign corporation without reference to or reliance upon § 1394, Pope's Digest.

In the instant case the suit is expressly predicated upon § 1394, while the Bryant case was not. Such suits, that is, suits brought under the sanction of § 1394, must be brought "in any county through or into which the road or line of stages or coaches of the defendant upon which the cause of action arose passes." The statute says "may be brought," but these words were construed to be mandatory and to mean that the action "must be brought in one of the counties through or into which the railroad (or line of mail stages or other coaches) ran." Spratley v. Louisiana & Ark. Ry. Co., 77 Ark. 412, 95 S.W. 776; Chicago, R. I. & P. Ry. Co. v. Jaber, 85 Ark. 232, 107 S.W. 1170.

Now the cause of action here sued on is transitory in its nature, and might, ordinarily, be sued upon in any jurisdiction where service upon the tortfeasor could be had; but, if brought in this state, it is localized by § 1394, Pope's Digest, and must be brought in a county through or into which the railroad or the stage or other coaches run. It appears, from the stipulation, that petitioner operates only through the counties of Mississippi and Crittenden in this state. So that, if this cause of action is brought in this state, under § 1394, it must be brought in one or the other of the two counties, and not elsewhere, in the state. The cause of action did not accrue or arise in this state. But, because of its transitory nature, the suit may be brought wherever proper service may be had...

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    • United States
    • Arkansas Supreme Court
    • 28 Enero 2016
    ...Terminal Oil Co. v. Gautney, 202 Ark. 748, 152 S.W.2d 309 (1941) (granting the writ because venue was improper); Viking Freight Co. v. Keck, 202 Ark. 656, 153 S.W.2d 163 (1941) (denying the writ where venue was proper); Coca–Cola Bottling Co. v. Kincannon, 202 Ark. 235, 150 S.W.2d 193 (1941......
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    • 16 Diciembre 1957
    ... ... The ARKANSAS MOTOR FREIGHT LINES, Inc., et al., Appellees ... Nos. 5-1403, 5-1418 ... Viking Freight Co. v. Keck, 202 Ark. 663, 153 S.W.2d 166, Id., 202 ... ...
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    • United States
    • Arkansas Supreme Court
    • 23 Marzo 1942
    ...which they must be brought." See, also, Terminal Oil Co. v. Gautney, Judge, 202 Ark. 748, 152 S.W.2d 309; Viking Freight Co. Inc., v. Keck, Judge, 202 Ark. 656, 153 S.W.2d 163, 167. In the latter case the Viking Freight Co. was a foreign Corporation, authorized to do business in this state ......
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    • United States
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    • 23 Marzo 1942
    ...by that section, and, if Act 314 changes the law of venue as to truck lines in actions originating in this state, as we held in the Viking case, supra, residents of this state, it must of necessity change it also as to railroad companies. If Sangalli had been injured in this state, through ......
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