Yocum v. Oklahoma Tire & Supply Co., 4-4100.

• Decision Date: 20 January 1936
• Docket Number: No. 4-4100.,4-4100.
• Citation: 89 S.W.2d 919
• Parties: YOCUM v. OKLAHOMA TIRE & SUPPLY CO.
• Court: Arkansas Supreme Court

89 S.W.2d 919

YOCUM v. OKLAHOMA TIRE & SUPPLY CO.

No. 4-4100.

Supreme Court of Arkansas.

January 20, 1936.

Appeal from Circuit Court, Crawford County; J. O. Kincannon, Judge.

Action by Frank Yocum and Frank Yocum, administrator of the estate of Ralph Yocum, deceased, against the Oklahoma Tire & Supply Company. From an adverse order, plaintiff appeals.

Reversed and remanded.

Partain & Agee, of Van Buren, for appellant.

Hill, Fitzhugh & Brizzolara, of Fort Smith, and C. H. Rosenstein, of Tulsa, Okl., for appellee.

JOHNSON, Chief Justice.

On June 4, 1935, appellant Frank Yocum and Frank Yocum, administrator of the estate of Ralph Yocum, deceased, filed suit in the Crawford county circuit court against appellee, Oklahoma Tire & Supply Company, praying judgment in damages for personal injuries sustained through the negligent operation of a motortruck upon a highway situated in Crawford county on January 23, 1935. Service of process was obtained upon appellee's truck driver in Crawford county on June 5, 1935, as prescribed by Act No. 70 of 1935 (page 157). The circuit court sustained appellee's motion to quash service of process, and this appeal comes from that order. Appellee's first contention for affirmance is that the circuit court's order quashing service of process is not a final or an appealable order, and in support of this contention we are cited Harlow v. Mason, 117 Ark. 360, 174 S.W. 1163, and Hogue v. Hogue, 137 Ark. 485, 208 S.W. 579. The cases referred to and cited support the contention urged, but they have no application to the facts of this case. The record here reflects that appellant elected to stand upon the service of process first had and obtained, and this was tantamount to a dismissal of the complaint and a final order from which an appeal lies. See Berryman v. Cudahy Packing Co., 189 Ark. 1151, 76 S.W.(2d) 956.

Next appellee contends for affirmance that Act No. 70 of 1935 affords no grounds or support for the service of process obtained in this action. Sections 1 and 3 of said act provide:

"Section 1. When the defendant is the owner or the operator of any motor bus or buses, motor coach or coaches, or motor truck or trucks, engaged in the business of carrying and transporting either passengers, freight, goods, wares or merchandise over any of the highways of this state, the service of summons may be had upon any such owner or operator by serving same upon any clerk or agent of any such owner or operator selling tickets or transacting any business for such owner or operator, or may be upon any driver or chauffeur of any bus, coach or truck being operated or driven by such driver or chauffeur as a servant, agent or employee of any such owner or operator, and service so had upon the agent or agents of any such owner or operator or had upon any such chauffeur or driver of any such bus, coach or truck being operated or driven by such driver or chauffeur as a servant, agent or employee of any such owner or operator shall be deemed and considered as good and valid service upon such owner or operator whether such owner or operator be a person, firm or corporation."

"Section 3. Whereas many motor buses, coaches and trucks are being operated upon the public highways of this State and by reason of their operation persons are being injured and their property damaged and in many instances there is now no agent of the owner or operator of such vehicles upon whom service of summons can be had in counties through which same are being operated, therefore an emergency exists on account of such injuries and damages to persons and property and no adequate provision for service of summons existing, it is found that this act is necessary for the immediate preservation of the public peace, health and safety, and an emergency is hereby found to exist, and this act shall be in full force and effect from and after its passage."

The undisputed facts in reference to the service of process in this action are that appellee is a Delaware corporation and maintains its place of business at Fort Smith in Sebastian county; that it owns and operates a small motortruck to deliver goods, wares, and merchandise to its customers in that vicinity and was actually engaged in making such a delivery to a customer in Crawford county when the alleged injury occurred on January 23, 1935; that the service of process was obtained in this action by the sheriff of Crawford county upon appellee's truck driver in said county.

Appellee's most serious contention seems to be that said act should be construed by us as applicable only to those truck and bus owners who carry freight and passengers for hire. The language of the act does not justify this narrow construction. Section 1 of the said act, when paraphrased, provides in plain and unmistakable language that when "the owner or the operator of any motor * * * truck or trucks, engaged in the business of carrying and transporting either passengers,...