Beatty v. Ponder

642 S.W.2d 891, 278 Ark. 41, 1982 Ark. LEXIS 1605

• Court: Supreme Court of Arkansas
• Decided: December 13, 1982
• Docket: 82-148
• Status: Published

Opinions

Robert H. Dudley, Justice.

Venue is the issue of this case. The plaintiff, a resident of Sharp County, filed suit in the Circuit Court of Sharp County against the defendant, a resident of Cleburne County. The complaint stated that plaintiff delivered his houseboat to defendant to repair a leak but defendant negligently allowed the boat to sink into Greers Ferry Lake and, as a result, plaintiff suffered property damages. After service of summons in Cleburne County, defendant moved to dismiss for lack of venue in the Circuit Court of Sharp County. The trial court denied the motion. Defendant now seeks a writ of prohibition to prevent the trial court from exercising jurisdiction. Jurisdiction of the petition for the writ of prohibition is in this Court pursuant to Rule 29 (1) (f). We grant the writ.

Plaintiff chose not to follow Ark. Stat. Ann. § 27-613 (Repl. 1979) which provides that actions other than those specifically provided by other statutes may be brought in any county in which the defendant or one of several defendants resides or may be summoned. Instead, plaintiff filed the lawsuit in the county of his residence. It is admitted that petitioner was not served in Sharp County. Thus, the question is whether an action for damages to personal property can be brought in a county when the only connection with that county is the residence of the plaintiff. The answer is found in our interpretation of Ark. Stat. Ann. § 27-611 (Repl. 1979), the statute which allows venue in the county where the owner of the property resides. We have consistently limited the application of § 27-611 to actions involving actual force or violence. Hooper v. Blue Hill Garage, 275 Ark. 5, 627 S.W.2d 2 (1982). In the case before us the complaint states a cause of action for damages to personal property as the result of a breach of contract. The breach of contract is alleged to involve an accident, which may have been a result of either negligent or tortious conduct, but it is not alleged to have involved force or violence. Because there is no assertion of an accident involving force or violence, § 27-611 is inapplicable to this case. Hooper v. Blue Hill Garage, supra, citing Sarratt v. Crouch Equipment Co., 245 Ark. 775, 434S.W.2d 286(1968); Evans Laboratories, Inc. v. Russell C. Roberts, Circuit Judge, 243 Ark. 987, 423 S.W.2d 271 (1968); International Harvester Co. v. Lyle Brown, Circuit Judge, 241 Ark. 452, 408 S.W.2d 504 (1966). Therefore, since venue was improper in Sharp County, the trial court should have sustained the motion to dismiss.

Prohibition to the circuit court is the proper remedy in this case. International Harvester Co. v. Lyle Brown, Circuit Judge, supra.

Writ granted.

Purtle, J., dissents.