Chris Well Servicing Co. v. Coryell

DAVISON, Justice.

Chris Well Servicing Co., a domestic corporation, herein seeks an order of this court assuming original jurisdiction and a writ addressed to respondent judge prohibiting further proceedings in a certain action pending in the court over which he presides and in which it is joined as a party defendant.

That action was brought by the administrator of the estate of Ronald Dean Bar-rington, deceased. The deceased had been a resident of Garvin County, Oklahoma, on April 19, 1967. He was killed in an oil field mishap in Blaine County, Oklahoma, on April 19, 1967. The administrator was appointed in Garvin County, Oklahoma, and is a resident of the State of Delaware.

One of the defendants in the action in the lower court is Dowell Division of the Dow Chemical Company, a corporate resident (a foreign corporation) of Delaware. Such defendant Dowell has properties in Creek County, Oklahoma, where the action of which complaint is herein made was brought. Dowell has been served with summons in that action pursuant to 12 O.S. 1961, § 137. Chris Well Servicing Co. is a domestic corporation of Oklahoma with its situs in Oklahoma County.

Plaintiff in such action in the Superior Court of Creek County joined Chris Well Servicing Co., as a co-defendant and alleged joint tort-feasor of Dowell’s.

Plaintiff (petitioner) herein asks us to hold that 12 O.S.1961, § 134, as interpreted in City of McAlester v. Fogg, Okl., 312 P.2d 867, and City of Cushing v. Coryell, Okl., 400 P.2d 174, is a specific venue statute and governs over the general venue statute, 12 O.S.1961, § 139.

Section 134, supra, (which immediately follows three sections (131, 132 and 133) fixing the venue of actions relating to the possession and title to real estate, suits for the recovery of fines and forfeitures, and certain suits against public officials, in only one particular county), is as follows:

“An action, other than one of those mentioned in first three sections of this article, against a corporation created by the laws of this state, may be brought in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside, or be summoned, or in the county where the cause of action or some part thereof arose.”

This court in the case of City of Mc-Alester v. Fogg, supra, held that a municipal corporation is “a corporation created by the laws of this' state” as used in such Section 134 and that the City of McAlester was entitled to defend the action filed against it in the courts of Pittsburg County, Oklahoma, where it is situated. In that case an accident happened in the City of McAlester, Pittsburg County, while the plaintiff was a passenger on a bus operated by a corporation, owner of a motor bus transportation system. The bus company’s lines ran through Oklahoma County and its principal offices were located in said county. The plaintiff filed a tort action for personal injuries against the two defendants above named and the individual bus driver in the District Court of Oklahoma County. On application of defendant, City of Mc-Alester, a domestic corporation, for a writ of prohibition against the above court from proceeding in said cause this court granted the writ on the theory that jurisdictional requirements of Section 134 had not been met.

In the case of City of Cushing v. Coryell, supra, it was sought to bring the named corporate municipality as a defendant into an action in Creek County, although such municipal corporation was situated in Payne County, on the theory that its employee and co-defendant Hodo had been sued in and served in Creek County and that, therefore, pursuant to 12 O.S.1961, § 139, it could be joined as a defendant in the Creek County case.

This court, in assuming original jurisdiction in that case and stopping further proceedings in the Creek County case against the City of Cushing, referring to case of City of McAlester v. Fogg, said:

“12 O.S.1961, § 139, fixed the venue of the action against the individual defendant, Hodo, but is not applicable to venue of actions against the municipality because it applies to ‘every other action’ and thereby excluded actions provided for by the preceding Sec. 134, supra. It is obvious that there is a failure to comply with the requirements of the following statement of law from the cited case:

“ ‘ * * * venue of actions against multiple joint defendants, lies only in the county or counties meeting the requirements of all applicable specific venue statutes and that, when such requirements have been met, the action is “rightly brought” so that under the authorization of 12 O.S.19S1 § 154 summons shall be issued to any other county or counties for service upon those defendants as to whom venue would have otherwise been fixed by 12 O.S.1951 § 139.’”

Respondent urges that the present case involves a domestic corporation and not a municipal corporation and for that reason is distinguishable from the cases of City of McAlester v. Fogg, supra, and City of Cushing v. Coryell, supra. This question has heretofore been answered adversely to respondent’s contention in the case of Oklahoma City v. District Court of Thirteenth Judicial District et al., 168 Okl. 235, 32 P.2d 318, 93 A.L.R. 489. There we said that the word “corporation” in 12 O.S.1961, § 134, is to include municipal corporations, and is applicable to municipal corporations as well as to domestic corporations. See also City of McAlester v. Fogg, supra.

Argument is presented herein on behalf of respondent judge that it would be difficult to ascertain where to sue two domestic ■corporate defendants for combined and concurring negligence in an instance where they might have caused an injury at some location outside the State. That question is not here presented, not briefed, and requires no answer. However, in the case of City of McAlester v. Fogg, supra, we held as we did even though another domestic corporation was properly a defendant in the Oklahoma County case, wherein it was sought to keep the City of McAlester as a co-defendant.

Respondent argues that the language in Section 134 using the word “may” instead of the word “must” is of permissive effect. We are unable to agree with this argument. Sections 131, 132 and 133, use the word “must” but each of these sections provide for actions described therein to be filed in only one county and the word “must” is proper when considering those actions. Under Section 134, jurisdiction is not confined to a single county and confers jurisdiction on more than one county in a proper case.

Respondent also argues that Section 139 applies to the facts in the present case. We cannot agree. It will be noted that as to a domestic corporation, the venue of an action is fixed by § 134. Section 139 can have no application as regards the domestic corporation for the reason that the latter statute, Section 139, applies only to “every other action,” meaning other than provided for by the earlier Sections 131-138, inclusive. This same reasoning applies to Section 154 cited by respondent.

We are of the view that the discussion in the City of McAlester v. Fogg, supra, opinion of the meaning of § 139, supra, of the applicability of the Kentucky case of Crume v. Taylor, 272 Ky. 585, 114 S.W.2d 1119 and of the meaning of our opinion in the case of Wray v. Garrett, 185 Okl. 138, 90 P.2d 1050, renders further treatment of respondent’s arguments herein unnecessary.

To paraphrase the language of the City of McAlester v. Fogg, case which appears below the quotation from the Kentucky case, supra, if plaintiff had so desired he could have maintained the action as against all defendants in the county where the cause arose, but, if he chose to bring it in a county where venue did not lie as regarded defendant domestic corporation, then that defendant had the option of saying whether or not it would submit to a suit in that jurisdiction.

As to the primary action which is here under attack, the venue of any action against the defendant domestic corporation (Chris Well Servicing Co.) was fixed by 12 O.S.1961, § 134, in either Oklahoma County, the location of its principal place of business, or in Blaine County, the site of the decedent’s fatal accident, and the court over which defendant (respondent) in this proceeding presides obtained no venue over said defendant domestic corporation, the plaintiff (petitioner) herein.

The foregoing opinion renders unnecessary any discussion of petitioner’s request for relief on the ground of forum non con-veniens.

Writ of prohibition is granted and ordered issued.

JACKSON, C. J., IRWIN, V. C. J., and BERRY, HODGES, LAVENDER and McINERNEY, JJ., concur. WILLIAMS and BLACKBIRD, JJ., dissent.