W. S. Fowler Rental Equipment Co. v. Skipper

• Decision Date: 25 July 1963
• Docket Number: 6 Div. 782
• Citation: 165 So.2d 375,276 Ala. 593
• Parties: W. S. FOWLER RENTAL EQUIPMENT COMPANY, Inc. v. Wiley E. SKIPPER.
• Court: Alabama Supreme Court

Page 375

165 So.2d 375

276 Ala. 593

W. S. FOWLER RENTAL EQUIPMENT COMPANY, Inc. v. Wiley E. SKIPPER.

6 Div. 782.

Supreme Court of Alabama.

July 25, 1963.

Rehearing Denied June 25, 1964.

London, Yancey, Clark & Allen, Birmingham, for appellant.

Hogan, Callaway & Vance, Birmingham, Thos. A. Smith, Jr., and Robt. Sapp, Cullman, for appellee.

LAWSON, Justice.

This is a personal injury action brought in the Circuit Court of Jefferson County by Wiley E. Skipper against W. S. Fowler Rental Equipment Company, a corporation, and A. E. Burgess Company, Inc., a corporation.

The accident out of which this case arose occurred on March 14, 1958, when a pickup truck in which the plaintiff was riding as a passenger collided with a boom of a dragline crane which had been left across an open ditch on a new highway then under construction. The new highway was through an area where previously no highway had existed. The place of the accident is in Blount County just north of the Jefferson County line.

The complaint was filed on April 17, 1959. Both defendants filed demurrers on May 14, 1959. On March 3, 1961, plaintiff struck A. E. Burgess Company, Inc., a corporation, as a party defendant. On March 20, 1961, plaintiff amended his complaint so that, as amended, the complaint consisted of Counts I-A and II-A. Count I-A charged wanton injury of the plaintiff by the defendant. Count II-A charged that the defendant injured the plaintiff by negligently placing a trap or pitfall across the highway, which was regularly used by the public in substantial numbers with the knowledge and permission or acquiescence of the defendant.

When the case came on for trial, the defendant filed a plea in abatement and requested that it be allowed to withdraw its demurrer, as previously filed. Such request of the defendant was denied by the court, following which the court granted a motion by plaintiff to strike the plea in abatement. The court overruled defendant's demurrer as re-filed, and defendant then filed pleas of the general issue to both counts of the amended complaint and pleas of contributory negligence to Count II-A. Issue was joined on defendant's pleas and trial was had.

On March 23, 1961, the jury rendered its verdict for the plaintiff and against the defendant in the amount of $10,000. Judgment was in accord with the verdict. The defendant's motion for a new trial being overruled, it appealed to this court.

The appellant, W. S. Fowler Rental Equipment Company, a corporatin, hereinafter referred to as the Fowler Company, contends that the trial court erred in striking its plea in abatement on motion of appellee, Skipper.

Section 60, Title 7, Code 1940, provides that 'all actions against a domestic corporation for personal injuries must be brought in the county where the injury occurred or in the county where the plaintiff resides, if such corporation does business by agent in the county of plaintiff's residence.'

The plea in abatement averred that the Fowler Company was a domestic corporation with its principal place of business in Blount County; that Skipper was not and never had been a resident of Jefferson County, in which county the suit was pending; and, that the accident occurred in Blount, not Jefferson County.

Skipper did not see fit to challenge the legal sufficiency of the plea in abatement but filed his motion to strike on the ground that the plea in abatement came too late, having been filed almost two years after the Fowler Company entered a general appearance in the cause by filing its demurrer.

The filing of a demurrer of the kind interposed by the Fowler Company, which was not based solely on the matter of jurisdiction of the person, constitutes a general appearance. Alabama Alcoholic Beverage Control Board v. State ex rel. Krasner, 247 Ala. 469, 25 So.2d 30, and cases cited. And it is established as to a court of general jurisdiction that a plea to the jurisdiction should be filed before a general appearance or there is a tacit admission that the court has the right to judge. Davis v. Jones, 236 Ala. 684, 184 So. 896. A plea to the venue may be waived. Ex parte Air Control Products, Inc., 271 Ala. 646, 126 So.2d 480.

But where an amendment makes a new case, defendant has a right to plead to the case thus made in bar or abatement, even though he had pleaded to the merits of the original complaint. Eagle Iron Co. v. Baugh, 147 Ala. 613, 41 So. 663; Eagle Iron Co. v. Malone, 149 Ala. 367, 42 So. 734; Ex parte Dunlap, 209 Ala. 453, 96 So. 441.

The Fowler Company argues that when, on March 3, 1961, Skipper, the plaintiff, by amendment struck A. E. Burgess Company, Inc., as a party defendant, a new case was made so as to make applicable the rule stated in the preceding paragraph. The Fowler Company asserts that since the Burgess Company filed a general appearance, jurisdiction was vested in the Circuit Court of Jofferson County, which jurisdiction could not be effectively challenged until and unless the Burgess Company was eliminated from the case, which was accomplished by the amendment of March 3, 1961, which act was followed by the filing of the plea in abatement.

In formulating this contention, the Fowler Company has apparently applied the rule applicable to suits against foreign corporations, which may be sued in any county in which they do business by agent. But the Burgess Company is not shown to be a foreign corporation. When the plea in abatement is construed most strongly against the Fowler Company, as it must be, both of the original defendants must be considered as being domestic corporations and the controlling venue statute is § 60, Title 7, Code 1940, which as we have shown above provides that actions gainst domestic corporations for personal injuries must be brought in the county in which the injury occurred or in the county where the plaintiff resides, if the corporation does business by agent in the county in which the plaintiff resides.

Venue in Jefferson County as to both the Fowler Company and the Burgess Company was equally good or equally bad. The fact that the Burgess Company was served by the sheriff of Jefferson County and thereafter made a general appearance by filing a demurrer would not prevent the Fowler Company from interposing its plea in abatement before making a general appearance. Nothing that the Burgess Company might have done could affect in any way the validity of the plea in abatement initially filed by the Fowler Company.

We hold that the amendment striking the Burgess Company as a party defendant did not make a new case within the meaning of the rule of the Eagle Iron Company Cases, supra, and that of the case of Ex parte Dunlap, supra.

The complaint, as originally filed, alleged that the accident occurred in Jefferson County. The complaint, as amended, is silent as to the county where the accident happened. The Fowler Company argues that as long as the complaint contained the averment that the accident occurred in Jefferson County, where the suit was brought, the action would not be subject to abatement and for that reason no waiver occurred. We do not agree. The averments of the original complaint as to where the accident happened could indeed have been controverted by a plea in abatement. The Fowler Company, better then anyone else, knew that the accident occurred in Blount County. There was no reason why it could not have taken issue on the averment in the original complaint that the accident happened in Jefferson County and averred that it occurred in Blount County, thereby showing that the suit was filed in the wrong county since the plaintiff was not a resident of Jefferson County.

We hold the plea in abatement was properly stricken because not timely filed.

The appellant argues assignments of error which take the point that the trial court erred in overruling its demurrer in that the complaint as amended was demurrable for not alleging the county in which the accident occurred. There is no merit in this insistence. Ray v. Richardson, 250 Ala. 705, 36 So.2d 89.

The appellant also contends that the complaint as amended was demurrable in not alleging with sufficient certainty the place where the accident occurred. Both counts contain the following averments:

'* * * the plaintiff was riding as a passenger in a motor vehicle along a new highway then under construction and then known as, to-wit, Interstate Route I-202, at a point, to-wit, seven miles north of the Town of Warrior, Jefferson County, Alabama, at approximately eight-tenths of a mile south of, to-wit, the Sulphur Springs School where the highway was then and there being constructed by defendant * * *.'

We entertain the view that the averments just quoted were altogether sufficient to advise the defendant as to the place where the accident occurred in order that it could investigate the alleged accident and obtain evidence and material for its defense. This is all that good pleading requires. Bennett v. Bennett, 224 Ala. 335, 140 So. 378; Bugg v. Green, 215 Ala. 343, 110 So. 718; Jones v. Keith, 223 Ala. 36, 134 So. 630; Smith v. Clemmons, 216 Ala. 52, 112 So. 442.

The accident is shown to have occurred on a named road at a point nine miles north of the Town of Warrior, which point was approximately eight-tenths of a mile south of a named school. We do not see how a more precise averment as to the place where the accident happened could be made. The case of Louisville & N. R. Co. v. Whitley, 213 Ala. 525, 105 So. 661, is clearly distinguishable. The allegations in that case as to the place where the accident occurred were simply that it did occur at a point about three miles from Sylacauga in Talladega County. Such an allegation does not define the place except within a circle around Sylacauga having a radius of three miles.

The counts which this court criticized in Western Ry. of Ala. v. Turner, 170 Ala. 643, 54 So. 527, merely alleged that the accident occurred in Macon County,...