In my opinion, the majority misconceive and have misapplied the holding in the Viking Freight Company case, 202 Ark. 656,153 S.W.2d 163: and this misconception throws the instant case out of alignment with the holding in the case of Missouri Pacific R. R. Co. v. Kincannon, Judge, ante, p. 76, 156 S.W.2d 70.
Language quoted in the majority opinion from the Viking case is correctly quoted; but it is now interpreted apart from the context in which it was employed. If the Viking case decides anything, it holds that 1394, Pope's Digest, was not repealed by Act 314 of the Acts of 1939. It holds also that mail stages and other coaches (including truck lines) having definite fixed lines of operation must be sued in some county through which their line of operation passes, just as in the case of suits again railroad companies, and that suits against any and all such carriers, including railroad companies, must be brought under the provisions of 1394, Pope's Digest, and not under Act 314.
The error of the majority arises from its misapprehension of the following sentence appearing in the Viking case: "One injured in this state through the wrongful act of another within the meaning of Act 314 may sue *Page 1073 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."
It was attempted, in the Viking case, to show that both Act 314 and 1394, Pope's Digest, were still in full force and effect, and that carriers suable under 1394 must be sued in conformity with the provisions of that section, without reference to Act 314, the provisions of which Act did not apply to carriers operating over fixed and definite routes.
The opinion in the Viking case reaffirmed the holding of the previous cases which had construed Act 314 to be a venue act, which did not create or destroy any cause of action, and that it localized causes of action originating in this state, but had no application to causes of action originating in some other state.
It was opposed to our construction of Act 314, and it was strongly urged in the brief of an amicus curiae that under our construction of Act 314 causes of action to which that Act applied could not be maintained in another state. So we said, although it may have been obiter to have said so, that "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;" and then, further construing Act 314, we said, "but if he elects to sue in this state (under Act 314) the cause of action must be brought in the county where the the injury occurred or in the county in which the plaintiff resided at the time of his injury." This language referred, of course, to actions which had been localized by Act 314, and had no reference to causes of action brought under 1394, Pope's Digest. This is certainly true, because the point involved and the point decided in the Viking case was that the venue of an action of that kind (against the carriers referred to in 1394) was governed, not by Act 314, but by 1394, Pope's Digest. Prohibition was denied in the Viking case, and the right to sue was upheld, although *Page 1074 the action was not brought in the county where the injury occurred nor in the county in which the plaintiff resided at the time of his injury. Nevertheless, the plaintiff had the right to she in a county where the injury did not occur and in which the plaintiff did not reside, because 1394, Pope's Digest fixed the venue of actions against the carriers mentioned in that section.
Certainly, the opinion in the Viking case makes no distinction as to the venue of suits against railroad companies and truck lines. The express holding of that case is that truck lines must be sued under the statute applying to them and to railroad companies. Section 1394 was held to apply to all the carriers to which the section referred, and it was very definitely held that, as railroad companies must be sued in a county through which their lines operated, so also must the venue be restricted as to other carriers to counties through which their operating routes ran.
The Viking Company operated its lines through only two counties in this state, to-wit: Mississippi and Crittenden, and it was held that a suit against the company brought in this state must be brought in one or the other of these two counties; but could not be maintained in any other county, for the reason that the bus line operated only through these two counties. So, far from distinguishing the venue of suits against railroads from suits against bus lines and other carriers, the opinion identifies the venue and prescribes the same venue as to each, that being limited and defined by 1394, Pope's Digest.
In the opinion in the Viking case it was said: "In the instant case the suit is expressly predicated upon 1394 (Pope's Digest)," and, further, that "Such suits, that is, suits brought under the sanction of 1394, must be brought `in any county through or into which the road or line of stages or coaches of the defendant upon which the cause of action arose passes'." That opinion proceeded further to say: "The statute says `may be brought,' but these words were construed to be mandatory and to mean that the action `must be brought in one of the counties through or into which the railroad *Page 1075 (or line of mail stages or other coaches) ran.' Spratley v. Louisiana Arkansas Ry. Co., 77 Ark. 412,95 S.W. 776; Chicago, R. I. P. Ry. Co. v. Jaber, 85 Ark. 232,107 S.W. 1170."
How, then, can it be said that the opinion in the Viking case defined one venue for suits against railroad companies, and another venue for suits against the other barriers referred to in 1394, when the opinion is replete with statements that this section applies to all carriers to which the statute referred? The point decided in that case was that these other carriers must be sued under the statute which applies alike to them and to railroad companies, that is, 1394, Pope's Digest.
It was not thought — and certainly, was not decided — in the Viking case that Act 314 had repealed, in whole or in part, 1394, Pope's Digest. That the Legislature did not intend this result appears to me to be very clear when we read 2 of Act 314, which reads as follows: "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 repealed."
The majority opinion in the instant case, not only overrules the opinion in the Viking case, but also, in effect, repeals 1394, Pope's Digest. The opinion in the Viking case held that, because of the transitory nature of a suit for damages for a personal injury, such a suit might be brought wherever proper service could be had, but that if brought against the carrier in this state the venue would lie only in Mississippi and Crittenden counties, for the reason that the truck line ran through only those two counties, and the venue in such actions, if brought in this state, was localized in a county through which the lines of the carrier rail.
Another reason for saying that the majority misconceive and misconstrue the Viking case is that the cause of action there sued on did not arise in this state, and it was held in the later case of Missouri Pacific R. R. Co. v. Kincannon, Judge, ante, p. 76, 156 S.W.2d 70, that Act 314 had no application to suits upon causes of action which did not arise in this state. *Page 1076
In the Kincannon case, just cited, prohibition was brought to prevent the Crawford circuit court from exercising jurisdiction upon a cause of action originating in another state, and we were asked to overrule the Viking case upon the ground that the opinion in, the Viking case did not give effect to the adjective "all," modifying the noun "actions," appearing in the first sentence of the Act, and that this word "all" should be construed to apply to all personal injury actions, wherever originating.
We declined to give the Act that construction, and predicated the opinion in this Kincannon case upon the proposition that the venue in suits against railroads is governed by 1394, Pope's Digest, and prohibition was denied.
It must also be remembered that the opinion in the Viking case recites that there were two plaintiffs in that case, one a nonresident of this state and the other a resident of this state, and yet it was said very clearly that the suits of these plaintiffs — both of them — were localized to the counties through which the truck line operated.
It seems clear to me that by 2 of Act 314, above quoted, the Legislature intended to leave unaffected by Act 314 the venue of actions otherwise fixed, and intended to repeal only legislation which was inconsistent with Act 314, and that there was no intention to repeal 1394, Pope's Digest.
Under the majority opinion, 1394, Pope's Digest, as virtually repealed. It is no longer necessary to sue a railroad company in some county through which its lines run. A resident of Newton county — in which there is no railroad — may now, under the majority opinion, sue any railroad company in this state, for a personal injury, wherever sustained, provided he was a resident of Newton county when the injury was sustained.
Can it be thought that any such result was intended by the passage of Act 314? Does not 2 of Act 314, above quoted, indicate that the Legislature did not intend any such result? Was it not the intention of the Legislature to leave undisturbed the venue of such actions as that of Edwards v. Jackson, 176 Ark. 107, 2 S.W.2d 44? *Page 1077 There, the plaintiff sued the sheriff of Montgomery county, and the sureties on his official bond, in Polk county, for the alleged wrongful killing of plaintiff's husband. A demurrer to the complaint was sustained upon the ground that the Polk circuit court was without jurisdiction, and in affirming that action it was said (to quote a headnote in that case) that "An action against a sheriff, deputies, members of posse and sureties on sheriff's bond, for killing plaintiff's husband, must be brought in the county where the cause of action arose, under Crawford Moses' Dig., 1165."
Has this 1165, C. M. Digest, now appearing as 1387, Pope's Digest, been repealed by Act 314; and, if so, where are we in the matter of jurisdiction as to venue of personal injury actions? That was a suit for a personal injury based upon a wrongful act, but the venue thereof was localized by 1387, Pope's Digest, just as suits against carriers were localized by 1394, Pope's Digest, and, in my opinion, these sections of the digest were not repealed or affected by Act 314. I have not investigated to ascertain whether there may not be other sections of the digest invalidated by the majority opinion.
The majority quote and disapprove the following contention of counsel for the railroad company: "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 rail road company on account of the injury suffered must be brought in the county in which the accident occurred."
I think counsel is correct in the contention that suits against a railroad company for personal injury "must *Page 1078 be brought in a county through or into which the line of railroad runs," but I do not concur in the view that the residence of the plaintiff has anything to do with the venue of such an action. In my opinion, the residence of the plaintiff, in a suit of that kind, has nothing whatever to do with the venue of a suit against a railroad or other carrier mentioned in 1934, Pope's Digest. In my opinion, any person, resident or non-resident, may sue these carriers on a cause of action arising, either in this state or in another state; but if the suit is brought, in this state it must be brought in some county through which the line of road of the carrier runs, and not in a county through which its line of road does not run. This is true, because 1394 takes no account of the residence of the plaintiff, and without reference to the plaintiff's residence the venue of suits against railroads and other carriers is fixed in a county, in any county, through which the line of the railroad, or the route of the other carrier, runs. This view comports with the holding in the case of Missouri Pacific R. R. Co. v. Kincannon, Judge, supra.
For these reasons, I think the Jackson circuit court through which county petitioner's railroad does not run, is without jurisdiction of the cause of action, and, in my opinion, the writ of prohibition should be awarded.