Commercial Union Fire Insurance v. Hansen , 205 Ark. 612 ( 1943 )

On December 5, 1940, Christian L. Seemel parked his car in front of a business building in Hazen, Arkansas, owned by appellee, and went in the building on business. While his car was so parked a part of the parapet wall, a metal awning and a large Neon sign which had been erected by John P. Baird, d.b.a. as Little Rock Advertising Posting Company, fell upon and damaged said car in the sum of $137.73. Appellant had issued its extended coverage policy on said car and paid Seemel said amount. It then brought this faction in the Pulaski circuit court against appellee and Baird to recover said amount and alleged the damage was caused by the negligence of both. Service was had on Baird in Pulaski county, he being a resident thereof, and service was had on appellee in Prairie county. Appellee moved to quash the service on her which was overruled. Appellee and Baird answered separately with a general denial and each filed a cross-complaint against the other.

Trial to a jury resulted in a verdict for Baird and against appellee. Before judgment was rendered on the verdict, appellee moved that the cause be dismissed as to her and that no judgment be rendered against her under the provisions of 1400 of Pope's Digest. The court sustained that motion and dismissed the compliant against her notwithstanding the verdict.

To reverse this judgment as to appellee, appellant relies upon the provisions of Act 317 of 1941, p. 794. This act is entitled "An Act to fix the venue of action for damages to personal property by wrongful act and to provide for the service of process therein." It reads as follows: Section 1. "Any action for damages to personal property by wrongful or negligent act may be brought either in the county where the accident occurred which caused the damage or in the county of the residence of any bona fide defendant to the action, or in any county where personal service may be had upon him, and provided further that in any such action service of summons may be had upon any party to such action in addition to other methods now provided by law by service of summons upon any agent who is a legal employee of such party engaged in the business of his principal at the time of such service; and provided further that process may issue in any such action directed to the sheriff of any county in the state and service by him therein shall be valid.

"Section 2. This act shall not repeal any provision for venue of actions except such as are inconsistent herewith and all laws and parts of laws in conflict herewith are hereby repealed."

It will be noticed that the venue of such actions is limited to three places: (1) it may be brought in the county where the accident occurred; (2) in the county of the residence of any bona fide defendant; and (3) "in any county where personal service may be had upon him." The "him" as used undoubtedly means any bona fide defendant. The only change in existing law made by said act was to permit the action to be brought in the county where the accident occurred which caused the damage. After prescribing the venue of a number of particular actions from 1387 to 1397 of Pope's Digest, it is their provided in 1398: "Every other action shall be brought in any county in which the defendant, or one of several defendants, resides, or is summoned." Under this statute it has been held that service of summons upon all the defendants may be made in other counties than that in which the action is brought, if at its commencement any of them resided in the county where it was brought. Fowler v. McKennon, 45 Ark. 94. We have also held that the resident defendant must be a bona fide defendant. Wernimont v. State, 101 Ark. 210,142 S.W. 194, Ann. Cas. 1913d 1156; Hot Springs Street Ry. Co. v. Henry, 186 Ark. 1094, 57 S.W.2d 1050. We have also many times held that where service was had on a nonresident defendant by virtue of 1398, no judgment can be had against the non-resident where the resident defendant was exonerated by the verdict, if timely objection is made, all as provided in 1400 of Pope's Digest.

No intention is manifested by said Act 317 to repeal 1400. There is no express repeal of any law, except such as are in conflict and it expressly provides it "shall not repeal any provision for venue of actions except such as are inconsistent herewith," and we see no inconsistency between them. Coca-Cola Bottling Co. v. Swilling, 186 Ark. 1149, 57 S.W.2d 1029; Harger v. Okla. Gas Elec. Co., 195 Ark. 107, 111 S.W.2d 485.

Appellant says the suit was brought under the provision of Act 317 that places the venue of a property damage action in the county of any bona fide defendant, and that the determination of the case rests almost solely on the question of whether Baird, the resident defendant, was a bona fide defendant. We think he was a bona fide defendant and that if the jury had returned a verdict against him and appellee, the evidence would have sustained a judgment thereon. We disagree with appellant in the contention that, if Baird is a bona fide defendant, then it is entitled to a judgment against appellee on the verdict under Act 317, because 1400 has been repealed. We think that section has not been repealed, and that the only reason appellee could be sued in Pulaski county over her objection was because Baird, a resident defendant, was joined in the action, and since Act 317 did not change the existing law of venue in this regard, it confers no greater right to sue in Pulaski county than existed under 1398 of Pope's Digest, which was not repealed. In other words, the only excuse for suing appellee in Pulaski county was that Baird, a resident defendant, was joined therein. When Baird passed out by the jury's verdict, appellee's right to be discharged, non obstante veredicto, arose by reason of 1400 of Pope's Digest which has not been repealed.

Appellant also says the purpose of Act 317 was to prevent a multiplicity of suits. Such may be, but it appears to us that one of the purposes was to create a new place of venue, that is, in the county where the accident causing the damage occurred, regardless of the residence of the defendant or defendants.

The judgment is accordingly affirmed.