Summary
In Flowers v. Aetna Casualty Surety Company, 186 Tenn. 603, 212 S.W.2d 595, 597, Mr. Justice Gailor summarized the question of where service is to be had on a corporation.
Summary of this case from General Acc. Corp. v. KirklandOpinion
Opinion filed June 12, 1948.
1. WORKMEN'S COMPENSATION.
In widow's action for wrongful death of husband under the Workmen's Compensation Act fixing venue in county where accident happened or in county of petitioner's residence, where no attack was made by plea in abatement on service in county of petitioner's residence, cause was improperly dismissed as to insurer (Williams' Code, sec. 6885).
2. WORKMEN'S COMPENSATION.
Effect of Workmen's Compensation Act fixing venue in county where accident happened or in that of petitioner's residence, is to give party filing petition an option to file it either in county of petitioner's residence or county where accident happened upon condition that defendant is servable with process in county where petition is filed as in other civil cases (Williams' Code, sec. 6885).
3. WORKMEN'S COMPENSATION.
Actions under the Workmen's Compensation Act are inherently transitory (Williams' Code, sec. 6885).
4. WORKMEN'S COMPENSATION.
Under the Workmen's Compensation Act fixing venue in county where accident happened or in county of petitioner's residence, when employee files a petition and employer is a corporation, the petition may be filed in county of petitioner's residence if service can there be had on defendant, or in county where accident happened if defendant is servable there, or in any county where defendant maintains an office and an agent for service of process (Williams' Code, secs. 6885, 8653, 8669).
5. WORKMEN'S COMPENSATION.
Under the Workmen's Compensation Act, a petitioner may sue employer and insurer jointly and recover a joint judgment against them, or may sue insurer alone and recover a judgment against insurer, but right of recovery thereunder is not limited by condition that employer be a party defendant since insurer is a material defendant upon whom service of original summons may be had with counterpart against employer (Williams' Code, secs. 6885, 8653, 8669).
6. STATUTES.
Every word, phrase, clause and sentence of an act must be given effect to carry out legislative intent.
7. WORKMEN'S COMPENSATION.
Under the Workmen's Compensation Act, widow could bring petition for benefit of herself and minor children for wrongful death of husband in county of her residence if either employer or insurer was servable in that county, in county where the accident happened under the same condition, or in any county where one or both of the defendants had an office or agent (Williams' Code, secs. 6885, 8653, 8669).
FROM HAWKINS.Appeal from Chancery Court of Hawkins County. — HON. J.R. KETRON, Chancellor.
Action under the Workmen's Compensation Act by Mrs. Fannie M. Flowers, widow, etc., against Aetna Casualty Surety Company, insurer, and J.A. Jones Construction Company, employer, for the benefit of herself and minor children for wrongful death of her husband. From a decree sustaining defendants' plea in abatement and dismissing the petition, petitioner appeals. Reversed and remanded.
PORTRUM PORTRUM, of Rogersville, for appellant.
CLYDE W. KEY, of Knoxville, for appellees.
The appeal presents a petition filed under the Workmens's Compensation Act by a widow for the benefit of herself and her minor children, for the wrongful death of her husband, against the Aetna Casualty Surety Company, the Insurer, and J.A. Jones Construction Company, the Employer. The accident from which the claim arises, happened in Roane County. The Aetna Casualty Surety Company maintains an office and resident agent in Hawkins County, where petitioner resides, but the Construction Company maintains neither an office nor resident agent in that County, but has an agent authorized to accept service for the Corporation in Knox County. Summons and copy of the petition were served on Lawrence Rolfe as agent for the defendant Aetna Casualty and Surety Company, in Hawkins County, and counterpart summons was served on the authorized agent of the Construction Company in Knox County. Defendants met the petition by plea in abatement, alleging that the accident claimed by Complainant to have resulted in the death of her husband, occurred in Roane County, where the said Edward E. Flowers was regularly employed by the defendant, Jones Construction Company; that at no time has the defendant Construction Company engaged in business in Hawkins County, nor had there any office, director or other person upon whom legal process might lawfully be served.
No objection is made in the plea or elsewhere, to the service had upon Aetna Casualty Surety Company, and it is admitted that the Surety Company had an office and resident agent in Hawkins County. The only question presented by the appeal is whether the venue is fixed exclusively in Roane County, where the accident happened, or whether the Chancery Court of Hawkins County had concurrent jurisdiction on account of the fact that Mrs. Flowers, the petitioner, is a resident of Hawkins County. The Chancellor sustained the plea in abatement and dismissed the petition, and the petitioner has perfected her appeal.
Even if the dismissal was correct as to Jones Construction Company, no attack was made by the plea on the service of the Insurer, to justify dismissal of the latter.
Pertinent parts of the Workmen's Compensation Act, Code sec. 6885, are as follows: " The party filing the petition may, at his option, instead of filing the same before the County Judge or chairman, file the same as an original petition in either the Circuit, Criminal, or Chancery Court of the county in which petitioner resides or in which the alleged accident happens, in which event summons shall be issued by the clerk of the court in which the proceeding is instituted, and shall be returned before said court within the time provided for proceedings before a county judge or county chairman." (Our emphasis.)
And earlier in the same section it is provided: "Said summon shall be served on the defendant as in other civil cases at least ten days before the time the matter is to be heard."
The effect of the statute is to give the party filing the petition, an option to file it either in the county of petitioner's residence or in the county where the accident happened, but a condition attaches to the exercise of the option, which is, that the defendant must be servable with process in the county where the petition is filed, for only in that way can service be had on defendant "as in other civil cases."
Actions under the Workmen's Compensation Act are "inherently transitory." Chambers v. Sanford Treadway, 154 Tenn. 134, 137, 289 S.W. 533.
"When the Compensation Law, chapter 123, Acts of 1919, was passed, then existing statutes localized transitory actions to the county where the defendant was servable with process. (Code secs. 8640, 8643 and 8669.) . . .
"Sections 4516, 4542 of Shannon's Code (8643, 8669, Williams Code) localizes the action against corporations, companies, or individuals of the county where they maintain an office or agency." ibid. 154 Tenn. at page 139, 289 S.W. at page 534.
In the Chambers Case, the Court was dealing with a petition filed by an employee, and expressly declined to follow the argument made here in the plea in abatement. From Judge COOK'S opinion in the Chambers Case it follows that when, as here, the employee files the petition and the employer is a corporation, the petition may legally be filed (1) in the county of petitioner's residence if service can there be had on the defendant; or (2) in the county where the accident happened, if the defendant is servable there; or (3) in any county of the State where (Code sec. 8669) the defendant maintains an office and an agent for service of process. Our authority for (3) is part of the concluding paragraph of the Chambers opinion, which is: "If other statutes regulating venue forbid the service of process required to bring the employer before the court of the petitioner's residence, or before the court of the county where the accident occurred, it would follow that the petitioner could go to the locality where the employer could be served with process, and where the rights assured under the Compensation Act could be adjudicated." ibid. 154 Tenn. at page 140, 289 S.W. at page 535.
In the Chambers Case the Court was dealing with venue as to the employer only, but under the Act, petitioner has the right to sue the Employer and the Insurer jointly and to recover a joint judgment against them. American Mut. Liability Ins. Co. v. Patrick, 157 Tenn. 618, 11 S.W.2d 872. Or petitioner may sue the Insurer alone, and recover a judgment against the Insurer. Hartford Acc. Indem. Co. v. Hay, 159 Tenn. 202, 17 S.W.2d 904. The right of recovery under the Act is not, therefore, limited by a condition that the employer be a party defendant, and clearly the Insurer is a "material defendant" ( Jackson v. Tiernan, 18 Tenn. 172; Craig v. McKnight, 108 Tenn. 690, 694, 69 S.W. 322) upon whom service of the original summons may be had with counterpart against the Employer. Taylor et al. v. McCool, et al., 183 Tenn. 1, 189 S.W.2d 817; Code sec. 8653.
It is an elementary maxim of statutory construction that every word, phrase, clause and sentence of an Act must be given effect to carry out the legislative intent: "A familiar canon of construction requires that effect be given to every clause and part of the statute, thus producing a consistent and harmonious whole." Finley v. Keisling Lbr. Co., 162 Tenn. 184, 186, 35 S.W.2d 388. Compare: Shea v. Hoffman, 168 Tenn. 628, at page 629, 80 S.W.2d 87.
Here, it is admitted that Mrs. Flowers is a resident of Hawkins County, and that the defendant Surety Company has an office and agent in that County, and is so subject to service of process in that County. It follows that under the express provision of the Act as interpreted by the cases that we have considered, Mrs. Flowers had a right to file her petition (1) in the county of her residence if one of the defendants was servable in that county, (2) in the county where the accident happened, under the same condition, or (3) in any county where one or both of the defendants had an office and agent.
This decision in no way conflicts with our cases. Borden Mills, Inc. v. Manis, 173 Tenn. 440, 121 S.W.2d 523; Brown v. Stone Webster Eng. Corp., 181 Tenn. 293, 181 S.W.2d 148. The situations presented by those cases are readily distinguishable from that before us here. In the Manis Case, the Employer filed the petition, so under Code 6885, he had the option to file it in the county of his residence or in the county where the accident happened. Though not servable with process in the county where the petition was filed, the Employee accepted service and filed a cross-bill, giving the Court jurisdiction of his person (Chambers, supra). In the Brown Case, though the Employee filed the petition, neither the Employer nor the Insurer had an office or agent in Smith County, where petitioner brought the action, nor was there servable with process (Code secs. 8643, 8669). The Brown Case merely echoed the rule made in Redman v. DuPont Rayon Co., 165 Tenn. 585, 56 S.W.2d 737, where Chief Judge GREEN said, approving the Chambers Case, supra:
"Generally speaking, therefore, suits against a corporation, except such suits as may be instituted by original attachment, must be brought in a county where the corporation has an office, agency, or resident director. It is urged, however, that the rule is different in suits brought under the workmen's compensation statute. . . .
"The whole matter comes down to this: With certain exceptions, a transitory action can be brought in any jurisdiction in which the defendant is found. Code, sec. 8640. Such an action, however, cannot be brought, in personam, in a jurisdiction in which the defendant is not to be found. A corporation, an artificial person, is not to be found in any jurisdiction or county unless the corporation maintains an office, agency, or resident director in that county." 165 Tenn. at pages 588, 590, 56 S.W.2d at
Finally, we agree with counsel for the Surety Company, that the maxim forum non conveniens has no application to the facts of this case.
Reversed and remanded.
All concur.