115 Ark. 272 | Ark. | 1914
Plaintiff filed a complaint against the Fort Smith Lumber Company and the Central Railway Company of Arkansas in the Perry Circuit Court. Summons was issued and alleged to have been served upon each of the defendants in Perry County. The defendants appeared specially and moved to suppress the service. The court sustained the motion as to the Central Railway Company, but overruled same as to the Fort Smith Lumber Company. The Fort Smith Lumber Company, appellant here, excepted to the ruling of the court and reserved the issue as to the service in its answer. The cause was tried before a jury and the verdict and judgment were in favor of the appellee in the sum of $12,000, and this appeal has been duly prosecuted.
First. The appellant contends that there was no service. The return of the officer is as follows: “I have this 8th day of January, 1914, duly served the within upon the Fort Smith Lumber Company by delivering a copy of same to L. Gr. Elliott in Perry County, Arkansas, agent of the Fort Smith Lumber Company, and in charge of its office and store and place of business in Perry County, Arkansas.”
L. Gr. Elliott testified that he had been in charge of a commissary for the appellant since July, 1913, selling goods for the appellant. The goods were bought from the main office upon requisition from witness. He got a merchandise car once a week. The commissary was situated in two movable box cars, each about 50 feet long. The cars were on a siding. Witness was clerk or sales- . mato fof' the uppell-ant.-'' He -had too uffiee: .'Witness toad been'iii' the-employ of-the coinpany .since August,' 1912, and ■ they -were ' running the com'miss'a'ry -at that time. Before witness took charge of the commissary he was! the' timekeeper; and -his office US -timekeeper was in the commissary.' Appellant bui'lt ah' addition to the commissary which is the- office 'ofi-the timekeeper; it is built onto the commissary cars. Appellant kept a general line of goods in the com,miss-ary that would invoice, on an average about $4,000.'. Witness made.daily reports to the 'general office or headquarters at Plainviéw, in Yell County, of the amount of Business done. Witness reported to the timekeeper; turned over his cash and coupons to the time-' keeper at night, -and the timekeeper' sent in the reports to the general office. The only report witness made, in person to the company was' a requisition for goods. As' the company proceeded with its logging road into the foheSt it followed it'up with its camps and commissary.' Witness had -shipped out some cars of lumbér for one J. Q. Allen, charging him' $10 per car. The money was received for the appellant. There were som-e oak logs shipped out in the latter part of the winter of 1913. Witness w-as told from the Pláinview office to collect the -charges for the shipment. He did so and entered it up on the books in favor of the Fort Smith Lumber Company. Witness reported this transaction, in connection with the commissary, to the appellant company. Witness was promoted from timekeeper to manager of the store. Witness had general charge of the store. The timekeeper keeps the books. When witness was promoted to manager the timekeeper became his bookkeeper, that is, he was the bookkeeper for the store or commissary, but was employed by the appellant. He reported to the Plainviéw office what witness reported to bim to send to the company. Witness further stated that in case the timekeeper was not there he issued coupon books and attended to the business for him. Witness usually did all the clerking himself in the store, but sometimes the timekeeper would wait on customers. Witness''-did-rbt'sign 'the 'reports ^th'at 'he made -to the, timekeeper to be Sent to the company. These were signed by the timekeeper himself. Witness 'at one time had another party working for him in the store. Witness was responsible to the company for the management. of the store. He was responsible to the company for the cash that he collected for goods -sold until he turned it over to..the timekeeper.- The office that was built for the-tixpek'eeper was fastened to the commissary cars in such.a way that it would have to be -torn down before the-’ears could be moved. Witness’ name appeared on:;the coupon books that.were issued by him. The time keeper’s name appeared on the coupon books issued by him. The -clerk that, was at work for witness in the commissary was sent out from the office at Plainview.
It was shown that appellant had -only one logging camp in Perry County, the one at Aplin. It consisted -of something like seventy or eighty portable houses. The' man in charge of the logging department had control over the employees of that department. The payroll -of the camp at Aplin was about $200 a week. Those in the logging department made their reports to the timekeeper and he sent these reports in to the main -office.
Act 98 of the Acts of 1909, p. 293, provides as follows :
“Section 1. That from and after the passage of this act, any and all foreign and domestic corporations who keep or maintain in any of the counties of this -State a branch office or other place of business shall be subject to suits in any of said counties where said corporation so keeps or maintains such office or place of business, and service * * * upon the agent, servant or employee in charge of said office or place of business shall be deemed good and sufficient service upon corporations and shall be sufficient to give jurisdiction to any of the courts of this State held in the -counties where said service of summons is had,” etc.
Section 2 provides that the service provided for in the act would not repeal any -other statute regulating service upon corporations in the State, but should be construed as cumulative and “in aid of the laws of the State now in force.”
Prior to the passage of the act of 1909, service could be had upon a domestic corporation, like appellant, in the county where it was situated, or where it had its principal office or place of business (where these were separate from the county in which the corporation was situated), or in the county where its chief officer resided. The act of 1909 provides an additional and cumulative method of service “in aid of” the above method.
Considering the acts in pari materia, it is clear that the intention of the Legislature was to simplify the proceedings and to facilitate, in the most practical way, the obtaining of service on corporations.
In Revere Rubber Co. v. Genesee Valley Blue Stone Co., 46 N. Y. Sup. 989, it is said: “The term ‘office of a corporation’ means its principal office within the State or principal place of business within the State, if it has no principal office therein.”-
Second. The complaint alleged that the appellee was in the employ of the appellant as brakeman on the 4th of September, 1912; that while engaged in the discharge of his duty as brakeman it was necessary for him to go between the standing cars and to use his foot to properly place the drawbars; that while thus engaged “the engineer on said train carelessly and negligently, without any warning whatsoever, backed its engine and cars down upon plaintiff, crushing his leg,” etc. The appellant denied that the appellee was in the employ of appellant, and denied the allegations of negligence, and set up the defense of assumed risk and contributory negligence.
Appellant contends that the court erred in not directing a verdict in its favor, for two reasons:
1. Because the evidence did not show that appellee was in the employ of the appellant at the time of his injury; and,
2. That there was no proof of negligence.
(a)
The testimony of another witness also was to the effect that appellant “paid the men that operated the train over that road.”
The above testimony was sufficient to warrant a finding that appellee was in the employ of appellant.
(b) The testimony tended to show that the train crew was making up a train of logs and while engaged in doing this it became necessary to couple a car onto the train. It was appellee’s duty to make this coupling. One Cooper was engineer. Appellee testified, so far as it is necessary to set it out, on this issue, as follows: “Cooper approached something like right there about the same time I was. I was flagging him down. He stopped eight or ten feet from the car. I saw the drawbar would not couple like they should, is the reason I flagged him flown. He stopped. I don’t know whether he saw me ar not, but I know he stopped. There is a loose motion in the drawbars-. One opens this way ¡and the other that way. You have got to get them both in line before you can couple them. I grabbed the grab iron on the side of this ear. He could see me all the time if he had been looking. I never went between the cars because there were logs sticking out over the ear and I had to either walk around that log or crawl under it and lift this drawbar. It was just as easy or convenient. There was not any danger to do it. That is the way I always look at it. If the train was standing still I put my foot up there and push it over. I had hold of this grab iron and pushed this drawbar over with my foot. It sprung back and I pushed it over again. The engine came back. The logs came together before the knuckles did, and tilted the oar sideways -and the logs clipped back and came together enough to press my foot. It was the duty of the engineer to hold the train until he got a signal from me to move it back. I gave the engineer a stop signal -only, gave him a back-up signal and after that I flagged him down and he stopped. I didn’t give him any signal between that time >and the time I got hurt. ’ ’
Appellee further testified, in response to questions, that he gave the engineer a -stop (signal, and that in response to that signal the engineer stopped the train; that up to the time appellee was hurt he had not given the engineer any signal to back up.
There was other testimony to the effect that the engineer stopped the train.
The engineer testified to the effect that no signal was given him and that he did not -stop the train from the time it left the switch until it coupled onto the car where appellee was injured; that he was going very slow. He was looking hack towards the appellee and saw him all the time until the car struck. He did ot stop the oars before they struck, and got no signal from appellee to stop. If he did he didn’t see it. He further testified that it was the duty of the appellee, under 'the rules of the company, when it becomes-necessary to line up the draw-bars, to flag down the train and cause it to come to a stop. He states that he was looking at the appellee until the cars bumped together, and that appellee was motioning him all the time, and that he was backing up in response to the signal of the appellee, but that the appellee did not signal him to stop at all.
The engineer was corroborated 'by Doctor Ballinger, who was on the engine at the time of the injury, to the effect that the engineer did not receive any signal from the appellee to stop the train and that he did not stop the train before the cars came together. Another witness also testified that the train did not stop.
On the other hand, the fireman, who was on the engine at the time, corroborated the testimony of the appellee, to the effect that the train came to a stop. The fireman did not see the appellee give the engineer the signal to stop, but was positive in his testimony that the train did stop.
Tbe issues as to negligence and contributory negligence were, therefore, issues of fact and not of law.
Third. On tbe issue as to whether or not appellee was in tbe employ of tbe appellant at tbe time be was injured, one C. W. Jones testified that be was the secretary and general manager of tbe appellant at that time, and that appellee, on tbe 4th day of September, 1912, (tbe date of tbe injury) was in tbe .employ of tbe Central Railway Company; that such company was operating the trains over tbe road of tbe Fort Smith Lumber Company. Tbe witness was asked whether or not be bad, during tbe years 1912 and 1913, shipped stuff over bis logging road for one John Q. Allen, .and answered in tbe affirmative. He was asked this question: “Q. Didn’t you, in making an explanation to him as to why you charged him $10 a car, tell him that you bad to do it because that road was being operated by tbe Fort Smith Lumber Company and for that reason you bad to charge him $10 a car?” .and answered, “No.”
In rebuttal, tbe appellee, over tbe objection of tbe appellant, asked witness John Q. Allen whether or not, during tbe years 1910,1911,1912 and 1913, be bad shipped out stuff over tbe road of tbe Fort Smith Lumber Company. He answered, “Yes, I shipped lumber and staves and logs over their road.” Tbe record then shows tbe following: “Q. I will ask you if Mr. Jones told you, in making-you a rate from the place where you loaded your stuff, that the logging road was being operated bytbe Fort Smith Lumber Company, and for that reason he would have to charge you $10 a car? A. Tbe first hauling be did for me was from Nimrod, about six miles from where it is now. My recollection is be charged me $7.50 a car from there; then I paid tbe rate over tbe Central of Arkansas extra’. Q. Did be, in connection with that, tell you that this road was being operated by the Fort Smith Lumber Company? A. Yes, I ashed him what made him make two rates; he said one of them belonged to the Fort Smith Lumber Company and one belonged to the other. Q. That was the logging road, and then the Central Bailwiay Company of Arkansas upon the other road? A. Yes, he said it was two roads.”
Fourth. The witness, Jones, having testified on behalf of appellant that at the time of appellee’s injury the engines and track were operated by the Central Bail-way Company and that the sale of these was not made to the appellant until January or February, 1913, was asked, on cross examination, what the appellant acquired from the' Central Bailway Company when appellant bought, and answered that the appellant bought the rails 'and locomotives. Witness was then ¡asked what appellant gave for the rails, and testified, “probably twenty or twenty-five thousand dollars.” Witness was then asked how much appellant gave for the engines, and answered: “Between twelve and fifteen thousand dollars;” that the appellant paid the Central Bailway Company about $40,000 for the rails and engines it purchased from it in February, 1913.
Witness then testified, in answer to questions, that he assessed the property of appellant for the years 1912 and 1913. He was then handed assessment lists for 1912 and 1913, and, over the objection of ¡appellant, was allowed to read the same. The assessment of appellant’s tram road for the year 1912 totalled the sum of $31,725. The assessment of appellant’s property, as shown by the list for 1913, which witness testified included the engines and steel, was $33,510. Witness was then asked the following question: “Will you explain to the jury why, in 1912, when this sale had not been made, you have an assessment there of $31,725, and in 1913 you claim they bought the steel that was worth $25,000, and the engines worth $15,000, making about $40,000, and your assessment for 1913 is only $2,000 more than it was for the year 1912?” Upon objection being made, the court announced that the testimony was only competent for the purpose of tending to show whose property it was at the time of the injury, and that he would admit the testimony with that explanation. The question was then repeated to the witness, and he stated that in 1912 the assessment was turned in to the Tax 'Commission for the engines and rails, and that the amount was turned in as the .assessment for all of it; that he did not remember the exact valuation.
The question was again repeated, and the witness was asked if he had any further explanation to offer, and answered, “Nothing further.”
Fifth. The appellee, over the objection of appellant, endeavored to show by the witness, Jones, that, when a suit was pending in Tell County by the appellee against the appellant and the Central Railway Company jointly, he, as the secretary and manager of both com, panies, filed an answer for them in which he admitted that appellee was in the employ of appellant, and denied that he was in the employ of the Central Railway Company. The witness stated that the answer that was filed was filed by the attorneys. He stated that he did not remember what was in the answer; that there was an answer filed, but that he did not remember about the answer being as counsel for appellee stated.
Sixth'. The instructions given at the instance of the appellee and the appellant fully and correctly covered the issues of negligence, contributory negligence and assumed risk. These instructions followed closely the principles of law governing such cases as they have been repeatedly announced by this court. No useful purpose, therefore, could be subserved by considering them in detail, and to do so would unnecessarily lengthen this opinion.
Again, appellant insists that the court erred in refusing its prayer No. 6, as follows:
“If you believe from the evidence that a rule prohibiting brakemen or other employees from using their foot in coupling cars was established, and if you further believe that this rule was known .to the plaintiff, or by the exercise of ordinary care on his part could have been known, and if you further believe that plaintiff disregarded this rule and was injured on account thereof, then your verdict should be for the defendant.”
The court gave appellant’s prayer for instruction No. 7, which is as follows:
“If you believe from the evidence that a rule for the safety of its employees was established preventing such employees from using their feet or foot in coupling cars and that the plaintiff violated same and was injured on account thereof, then the court instructs you that plaintiff was guilty of negligence contributing to his own injury and can not recover.”
Other portions of the refused prayer No. 6 were fully covered by prayer No. 7, which the court gave.
The court, in its eighth instruction, given at the instance of the appellee, correctly declared the law by which the jury were to be governed in determining the credibility of witnesses.
Seventh.
"Upon the whole case the record is free from error, and the judgment must, therefore, be affirmed.