Yocum v. Oklahoma Tire & Supply Company
Decision Date | 20 January 1936 |
Docket Number | 4-4100 |
Citation | 89 S.W.2d 919,191 Ark. 1126 |
Parties | YOCUM v. OKLAHOMA TIRE & SUPPLY COMPANY |
Court | Arkansas Supreme Court |
Appeal from Crawford Circuit Court; J. O. Kincannon, Judge reversed.
Action by Frank Yocum and Frank Yocum as administrator of the estate of Ralph Yocum, deceased, against the Oklahoma Tire & Supply Co. From an order dismissing the complaint, plaintiff has appealed.
Cause reversed and remanded.
Partain & Agee, for appellant.
Hill Fitzhugh & Brizzolara and C. H. Rosenstein, for appellee.
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 and Supply Company, praying judgment in damages for personal injuries sustained through the negligent operation of a motor truck 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 70 of 1935. 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 70 of 1935 affords no grounds or support for the service of process obtained in this action. Sections one and three of said act provide:
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 motor truck 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 one of the said act when paraphrased provides in plain and unmistakable language that when "the owner or operator of any motor * * * truck or trucks engaged in the business of carrying and...
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Kerr v. Greenstein
... ... 1151, 76 S.W.2d 956, and Yocum v. Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 S.W.2d ... Annotated of 1947 published by Bobbs-Merrill Company, now in process of completion. This section is in Volume 3, ... ...
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Kerr v. Greenstein
... ... 189 Ark. 1151, 76 S.W.2d 956 and Yocum v ... Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 ... Annotated of 1947, published by Bobbs-Merrill Company, now in ... process of completion. This section is in ... ...
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Gillioz v. Kincannon, Judge
... ... Bush, 191 Ark. 1044, 89 S.W.2d 594. See, also, ... Yocum v. Oklahoma Tire & Supply Co., 191 ... Ark. 1126, 89 ... ...
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Bryant Truck Lines, Inc. v. Nance
... ... in which county the bus company maintained an agent upon whom ... service could be had. It ... might be had. See, also, Yocum v. Oklahoma Tire & Supply Co., 191 Ark. 1126, 89 S.W.2d ... ...