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EVANS v. THOMPSON

May 11, 1954

EVANS ET AL.
v.
THOMPSON.



The opinion of the court was delivered by: John E. Miller, District Judge.

  Plaintiffs filed this suit against defendant in the Circuit Court of Sebastian County, Fort Smith District, and obtained service of summons upon defendant on March 12, 1954. In their complaint plaintiffs alleged that they were citizens and residents of the State of Arkansas and were partners doing business under the firm style of S.E. Evans Company; that they were engaged, among other things, in the business of owning and operating heavy construction equipment and were the owners of a D8 tractor, cable control and trailer; that the defendant trustee was a citizen and resident of the State of Missouri, and as such trustee operated a line of railroad through the City of Jacksonville, Pulaski County, Arkansas.

"That on or about the 23rd day of November, 1953, at approximately 10:50 A.M. the defendant, by and through his agents, servants and employees, who, at the time, were acting within the scope of their employment by said defendant, carelessly and negligently operated the defendant's passenger train, No. 219, in a southerly direction in the City of Jacksonville, Pulaski County, Arkansas, causing the same to collide with the plaintiffs' truck and low-boy trailer loaded with said D8 tractor and cable control at a public railroad crossing in the City of Jacksonville, Arkansas; that the plaintiffs' truck and trailer loaded with said tractor was being operated in a careful and prudent manner in a westerly direction on a public street or highway crossing the defendant's railroad track, and the tractor portion of the unit was completely across the track when the trailer portion loaded with said tractor was struck by the defendant's train, causing damage to the plaintiffs' property as follows:" Then follow allegations of damages to plaintiffs' property and of negligence on the part of defendant's employees in the operation of the train.

The case was removed by the defendant to this Court on March 26, 1954, and on May 1, 1954, defendant filed its motion to dismiss plaintiffs' complaint, on the ground that he had previously instituted a suit against S.E. Evans, individually and doing business as S.E. Evans Company, in the Circuit Court of Pulaski County, Arkansas; that the Pulaski County suit involved the same subject matter as the instant suit; that the Pulaski Circuit Court had acquired exclusive jurisdiction of the subject matter; that the Sebastian Circuit Court had no jurisdiction of plaintiffs' instant suit, and that this Court acquired no jurisdiction of said suit upon removal.

The record discloses that on January 29, 1954, the defendant herein filed his complaint in the Circuit Court of Pulaski County, Arkansas, in which he named the following as defendants: "S.E. Evans, Individually and doing business as S.E. Evans Company; S.E. Evans, Incorporated, an Arkansas Corporation; D.B. Hill and S.E. Evans, as Joint Venturers." On January 30, 1954, summons was served on "S.E. Evans in person as an individual and S.E. Evans in person agent for service for the S.E. Evans Co. an Arkansas Corp. D.B. Hill and S.E. Evans as joint venturers." In that suit the plaintiff (defendant herein) alleged:

"The defendant, S.E. Evans, is a citizen and resident of Sebastian County, Arkansas, doing business individually and as S.E. Evans Company; the defendant S.E. Evans, Incorporated is an Arkansas corporation * * *; the defendant D.B. Hill is a citizen and resident of Pulaski County, Arkansas, and said D.B. Hill and said S.E. Evans, as Joint Venturers, are engaged in the performance of a contract with the United States Government in Pulaski County, Arkansas.

"On November 23, 1953, at about 10:50 A.M., the defendants, by and through their agents, servants and employees, who at the time were acting within the scope of their employment by said defendants, negligently and carelessly drove defendants' Ford truck and lowboy trailer, loaded with a large caterpillar tractor, in a westerly direction into collision with plaintiff's southbound passenger Train No. 219, at a public railroad crossing in the City of Jacksonville, Pulaski County, Arkansas." Then follow allegations of negligence on the part of defendants' employees and damages sustained by plaintiff (defendant herein).

At the outset it may be noted that there are two matters about which there is and can be no dispute. (1) If the Circuit Court of Sebastian County had no jurisdiction of the instant suit, this Court can acquire none upon removal. Mayner v. Utah Const. Co., D.C.Ark., 108 F. Supp. 532, and authorities cited therein. (2) Under the Arkansas law, when the venue may be laid in more than one county, as is true in this case, the court wherein suit is first filed and summons is first served acquires exclusive jurisdiction. Healey & Roth v. Huie, Judge, 220 Ark. 16, 245 S.W.2d 813; Sims v. Toler, Judge, 214 Ark. 732, 217 S.W.2d 928.

Although plaintiffs apparently admit that the subject matter of the two suits is the same, the Court feels that some discussion upon this point is warranted in view of statements in two Arkansas decisions. In Kornegay v. Auten, Judge, on Exchange, 203 Ark. 687, 158 S.W.2d 473, 476, the Court held that a suit in the Lonoke Circuit Court by plaintiff against the driver of an automobile in which several passengers were riding at the time of the collision, said passengers not being made parties defendant in that suit, did not give the Lonoke Circuit Court "jurisdiction over the subject matter of the litigation of the parties in the suits brought by the several parties [said passengers] injured", and that the passengers were free to prosecute their suits in the Monroe Circuit Court against the party who was the plaintiff in the Lonoke Circuit Court action. Likewise, in Sims v. Toler, Judge, supra [214 Ark. 732, 217 S.W.2d 930], the Court held that "The cause of action in the present case [automobile collision] between Perry [driver of one automobile] and Malone (driver of the other automobile) presents subject-matter distinct and separate from the cause of action existing between Sims [passenger in Malone's automobile] and Perry."

"Subject matter," as that term is used by the Arkansas Supreme Court, seemingly refers both to the transaction or occurrence involved, and to the cause or causes of action arising therefrom. Thus, in the Sims and Kornegay cases the Court held that, even though the same accident or occurrence were involved, the cause of action by or against a passenger is separate subject matter from the cause of action by or against the driver of the automobile. The reason for such a holding, while not discussed fully, is indicated in the concurring opinion of Justice George Rose Smith in the Sims case, supra, wherein it is noted that the outcome of Perry's suit against Malone would not affect Perry's claim against Sims, who was a passenger in Malone's automobile. In other words, the right to recover or liability on the part of a passenger is not dependent upon the right to recover or liability on the part of the driver. The driver of an automobile may be guilty of contributory negligence, thus precluding recovery of damages by him, while his passenger is free from contributory negligence and, in the absence of a joint venture, may recover damages from the negligent driver of the other automobile. Likewise, in rare instances a passenger in an automobile may be guilty of negligence and liable for damages, while the driver of said automobile is not guilty of negligence and not liable for damages. Thus, in view of the separate and distinct character of the two types or causes of action, neither being dependent upon the other, the Arkansas Supreme Court concluded that the two causes of action involved separate subject matter and need not be litigated in the same lawsuit.

In the instant case, however, there are no separate and distinct causes of action. The liability of S.E. Evans, if any, is a partnership liability, and the interest of each of the other partners is identical with the interest of Evans. If he is liable, they are liable; if he is entitled to recover, they are entitled to recover. Stated differently, in the instant case not only is the same occurrence involved in the two suits, but also the interests of the parties are identical. Consequently, precisely the same subject matter is involved in both suits.

As heretofore stated, plaintiffs apparently concede that the same subject matter is involved in the two suits, but they contend that their liability, if any, is joint, not joint and several, and that the Pulaski suit would be subject to dismissal for lack of proper parties defendant upon a showing that S.E. Evans was one of several partners who were jointly liable for the actions of their employees. This contention of plaintiffs is based upon Section 65-115, Ark.Stats. 1947 Annotated, Uniform Partnership Act, which provides:

    "All partners are liable, (a) Jointly and severally
  for everything chargeable to the partnership under
  sections 13 and 14 (§§ 65-113, 65-114). (b)
  Jointly for all other debts and obligations of the
  partnership * * *."

Plaintiffs argue that "The cause of action alleged by the defendant in his Pulaski County action is in tort for the alleged negligence of an employee. This type of liability is not covered in Sections 13 and 14 referred to in the Statute above quoted, therefore subsection (b) of the Statute makes the partners' liability joint and not joint and several." It is true that Section 14, § 65-114, is inapplicable, but it is equally true that Section 13, § 65-113, does apply. Section 65-113 provides:

    "Where, by any wrongful act or omission of any
  partner acting in the ordinary course of the business
  of the partnership or with the authority of his
  co-partners, loss or injury is caused to any person,
  not being a partner in the partnership, or any
  penalty is incurred, the partnership is liable
  ...

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