Chicago, Rock Island & Pacific Railway Co. v. Bone

McHaney, J. Suit was brought in the Jackson circuit court by Miss Elizabeth Smith, a resident of Jackson county, as plaintiff, against petitioners, to recover damages for personal injuries allegedly sustained by her, occasioned by a collision of the automobile in which she was riding with a train of petitioners, at the Biddle crossing on highway No. 65,.in Pulaski county. Petitioners appeared specially aiid moved to dismiss, plaintiff’s complaint for want of jurisdiction on the ground that the venue of the action was controlled by § 1394 of Pope’s Digest and by Act 314 of 1939; that the complaint shows on its face that the plaintiff is a resident of Jackson county and that her injuries were suffered in Pulaski county; and that petitioners do not now nor at the time of the accident, October 20, 1941, nor at the time suit .was brought, own or operate a line of railroad through or into Jackson county. The trial court, presided over by respondent, overruled said motion, and petitioners have brought this action in this court to prohibit the trial court from proceeding in the trial of said case. Petitioners state the question to be decided as follows: “The sole question presented by this proceeding is whether Act 314 of the General Assembly of Arkansas for the year 1939, prescribing the venue of actions for personal injuries and death by wrongful act, repeals § 1394 of Pope’s Digest, § 93 of the Civil Code of Arkansas, prescribing’ the venue of an action against a railroad company for injury to the person or property, in its entirety, or only that part of § 1394 which would allow plaintiffs to sue in counties through or into which the railroad runs other than such counties in which the acci'dent occurred or in which the plaintiff resided at the time of the accident.” And they further elucidate the question by way of argument with this statement: “Act 314 and § 1394 of Pope’s Digest can stand together and suits against railroads for personal injuries occurring in the operation of the road can be brought in the county where the accident occurred or where the plaintiff resides, except that they must be brought in a county through or into which the line of railroad runs. Of course, such an accident will always occur in a county into or through which the railroad runs. It could not occur in any other county. But if the person injured does not happen to reside in that county or some other county into which or through which the railroad runs, then the venue of any action which he might institute against the railroad company on account of the injury suffered must be brought in the county in which the accident occurred. ’ ’ Prior to the enactment df said Act 314 of 1939, the venue of actions for personal injuries against railroad companies was localized by said § 1394 to “any county through or into which the road ... of the defendant . . . passes,” and the permissive language used in said section, “may be brought,” was construed, in Spratley v. L. & A. Ry., 77 Ark. 412, 95 S. W. 776, to “have the meaning of ‘shall be brought,’ and are mandatory. So an action against a railway company for any of the causes named in this section must be brought in one of the counties through or into which the railroad runs.” But, by § 1 of said Act 314, “All actions for personal injury or death by wrongful act shall be brought in the county where, the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of the injury, . . .’’It appears to us that this language is all inclusive. “All actions for damages for personal injury or. death by wrongful act” means just what it says, and that is that all personal injury actions shall be brought in one of the two •counties named. It does not say “all actions, except as against railroad companies, ’ ’ but ‘ ‘ all actions, ’ ’ and we have several times so held. In Ft. Smith Gas Co. v. Kincannon, Judge, 202 Ark. 216, 150 S. W. 2d 968, we said: “What was the purpose of Act 314? The answer must be to localize personal injury actions, and to require that they be brought in the county where the injury occurred or where the plaintiff resides, and to repeal so much of § 1398, Pope’s Digest, as previously permitted them to be brought in any county where service might be had on the defendant; and, of course, it was contemplated that they be tried in the county in which they must be brought.” See, also, Terminal Oil Co. v. Gautney, Judge, 202 Ark. 748, 152 S. W. 2d 309; Viking Freight Co., Inc., v. Kech, Judge, 202 Ark. 656, 153 S. W. 2d 163. In the latter case the Viking Freight Co. was a foreign corporation, authorized to do business in this state with a resident agent for service. It operated a truck line in interstate commerce, passing through the counties of Mississippi and Crittenden in this state. A collision occurred in Missouri between a truck owned and operated by Viking and a truck owned by one Holmes, a nonresident, and driven by one Carpenter, with whom one Sangalli, a resident of this state, was riding, and the latter was injured in the collision. Sangalli brought suit against Viking in Mississippi county to recover damages for the personal injuriés sustained by him and Viking sought a writ of prohibition in this court. We denied the writ, holding that § 1394 of Pope’s Digest governed the venue and not said Act 314. We there said: “These suits (referring to one by Holmes, a non-resident, as well as to that of Sangalli)—as the original opinions state—are predicated upon § 1394, Pope’s Digest. This section permits suits against the common carriers named operating over fixed lines or routes in this state, and upon the authority of the cases cited in the original ojpinions they may be sued in this state upon causes of action not originating in the state in any county through which their lines or routes run. Act 314 effects no change in this respect. It is a venue act which does not create or destroy any cause of action. It localizes causes of action originating in this state, and has no application to causes of action arising in some other state. One injured in this state through the wrongful act of another within the meaning of Act 314 may sue upon that cause of action in. another state if proper service may be had; but if he elects to sue in this state the cause of action must be brought in the county where the injury occurred or in the county in which the plaintiff resided at the time of his injury. ’ ’ We see no more reason to apply § 1394 to railroad companies, in matters of venue, than to truck lines, since prior to Act 314, actions for personal injuries against both were governed by that section, and, if Act 314 changes the law of venue as to truck lines in actions originating in this state, as. we held in the Viking case, supra, by residents of this state, it must of necessity change it also as to railroad companies. If Sangalli had been injured in -this state, through the wrongful act of Viking, within the meaning of Act 314, the opinion states he might have sued in another state, if service could be had; but, if he had elected to sue in this state, “the cause of action must be brought in the county where the injury occurred or in the county in which the plaintiff resided at the time of the injury.” This Viking case and the case of Mo. Pao. R. R. Co., Thompson, Trustee, v. Kinca/imon, Judge, ante, p. 76, 156 S. W. 2d 70, thoroughly settle the proposition that Act 314 relates only to actions for damages for personal injuries caused by wrongful act done in this state. In the latter case, which was a suit for damages for personal injuries received in Oklahoma, we said: “The General Assembly did not, of course] attempt to prescribe the venue of actions brought in another state, and could not order that such an action shall be brought in the county of that state where the injury or death had occurred. It (Act 314) relates only to actions. for damages for wrongful act done in this state, and has no relation to wrongful acts resulting in injury committed in another state. As if to make this distinction clear, § 2 of the act provides that ‘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 répealed.’ In other words, no attempt was made in Act 314 to prescribe the venue of causes not originating in this state.” We there declined to overrule the Viking case, as we were asked to do, but expressly followed it, and denied the writ of prohibition. Petitioners insist that § 1394 has not been repealed by Act 314, § 2 of which is just quoted above. And so it has not, except in so far as it conflicts with Act 314. Under § 1394, the venue in actions such as this lies in any county into or through which a line of the defendant passes, whether the cause originated in or out of this state, but, under Act 314, it lies in one of two counties, either that of plaintiff’s residence or that in'which the injury occurred, where the injury occurred in this state. Act 314, being the last enactment on the subject, is in conflict with and repugnant to § 1394, as to causes of action for personal injuries originating in this state and is, of necessity, repealed to this extent, not only because of the repugnancy between them, but because of the express language of § 2 quoted above. The plaintiff in the suit pending in the Jackson circuit court, being a resident of that county, and having received personal injuries because of the alleged wrongful act of petitioners in Pulaski county, in this state, properly laid the venue in Jackson county, she having her choice as between the two counties, and the petition for a writ of prohibition must be denied. It is so ordered.