State Ex Rel. Smith v. Gray

979 S.W.2d 190, 1998 Mo. LEXIS 86, 1998 WL 809561

Opinions

BENTON, Chief Justice.

The respondent judge ruled that, for venue purposes, a domestic insurance corporation, sued with an individual, does not “reside” in a county where it has only an office or agent for the transaction of its usual and customary business. The respondent then transferred the case from- Jackson County to Saline County. The plaintiffs below, Larry and Karen Smith, seek mandamus in this Court. The alternative writ is made peremptory. Mo. Const, art. V, sec. J.

I.

According to the petition, on January 2, 1996, the Smiths’ Mercury Sable was traveling in the snow, north on U.S. Highway 65 just south of the Missouri-Arkansas border. A dump truck stopped ahead of them, obstructing the lane. To avoid the truck, Larry slowed almost to a stop, but his car slid onto the highway’s right shoulder, near a rock embankment. Getting out, Larry tried to push the Mercury back onto the road. The dump truck left the scene and has not been identified. Minutes later, a tractor trailer rig struck the Mercury from behind, crushing Lany between the car and the rock wall. The rig was driven by Paul L. Adcock and owned by his employer, Hahn & Phillips Grease Company, Inc.

On October 24, 1997, the Smiths sued (1) their insurer, Shelter Mutual Insurance Company, claiming uninsured motorist coverage for the negligence of the unidentified dump truck driver, and (2) Adcock and his employer Hahn & Phillips, alleging negligent operation of the tractor trailer rig.

II.

Venue is determined solely by statute. Rothermich v. Gallagher, 816 S.W.2d 194, 196 (Mo. banc 1991). When individuals and corporations are sued in the same suit, section 508.010(2)¹ governs: “When there are several defendants, and they reside in different counties, the suit may be brought in any such county.” See Dick Proctor Imports, Inc. v. Gaertner, 671 S.W.2d 273, 274 (Mo. banc 1984).

Defendant Adcock resides in Saline County. Defendant Hahn & Phillips, a Missouri corporation, keeps its registered office in Saline County, and has no office or agent in Jackson County. Defendant Shelter Mutual, a Missouri insurance corporation, has its principal and home offices in Boone County, and other offices throughout the state for selling insurance policies, including an office in Jackson County. In this case, venue is proper in Jackson County only if Shelter Mutual “resides” there under section 508.010(2).

III.

Prior to 1943, no Missouri statute defined the “residence” of corporations for venue purposes. In 1939, this Court held that section 508.010(2)—then numbered 720(2)— must be construed in pari materia with section 508.040—then numbered 723. State ex rel. Henning v. Williams, 345 Mo. 22, 131 S.W.2d 561, 563-64 (Mo. banc 1939), overruled on other grounds in State ex rel. Webb v. Satz, 561 S.W.2d 113, 115 (Mo. banc 1978). This Court first reviewed section 508.040, which it interpreted to fix the residence of foreign and domestic corporations when only corporations are sued. Henning, 131 S.W.2d at 565. Section 508.040 permits corporations to be sued in: “any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.” Id. (quoting sec. 723 RSMo 1929, the identical predecessor of sec. 508.010).

Then this Court declared: “[W]e can see no reason why their residences should not be regarded as established in the same way when, perchance, they are joined as defendants with another, thereby fixing the venue under Sec. [508.010(2) ].” Henning, 131 S.W.2d at 565. The Henning case follows the common law rule that a corporation’s “residence may be wherever its corporate business is done,” that is, “where its officers and agencies are actually present in the exercise of its franchises and in carrying on its business; and that the legal residence of a corporation is not necessarily confined to the locality of its principal office or place of business.” Z.L. Slavens v. South Pacific Railroad Co., 51 Mo. 308, 310 (Mo. banc 1873). See also City of St. Louis v. Wiggins Ferry Co., 40 Mo. 580, 586-87 (Mo. banc 1867); Kalamazoo Loose Leaf Binder Co. v. Con P. Curran Printing, 242 S.W. 982 (Mo.App.1922); Hartell v. American Railway Express Co., 225 S.W. 131, 132 (Mo.App.1920). But cf. St. Charles Sav. Bank v. Thompson & Gray Quarry Co., 210 S.W. 868, 871 (Mo.1919); State ex rel. Juvenile Shoe Corporation v. Miller, 217 Mo.App. 16, 272 S.W. 1066, 1067-68 (Mo.App.1925).

In 1943, the General Assembly changed the law, legislating that the residence of a general and business corporation “shall be deemed for all purposes to be in the county where its registered office is maintained.” Sec. 351.375(3) codifying 1913 Mo. Laws 120, sec. 10. As for general and business corporations, the 1943 law determines their “residence” under section 508.010(2). Dick Proctor Imports, 671 S.W.2d at 274-75 (Mo. banc 1984); Bowden v. Jensen, 359 S.W.2d 343, 351 (Mo. banc 1962); State ex rel. Whiteman v. James, 364 Mo. 589, 265 S.W.2d 298, 300 (Mo. banc 1954); State ex rel. O’Keefe v. Brown, 361 Mo. 618, 235 S.W.2d 304, 306 (Mo. banc 1951).

Although the 1943 law changed the rule for general and business corporations, it expressly does not apply to insurance corporations. Sec. 351.690(2) codifying 1913 Mo. Laws 115, sec. 3. Therefore, the provision fixing a corporation’s residence at its registered office does not apply to insurance corporations. State ex. rel. Stamm v. Mayfield, 340 S.W.2d 631, 633 (Mo. banc 1960).

In the absence of a specific statute, the Rothermich opinion followed the Hen-ning line of cases, reading sections 508.010(2) and 508.040 together. Rothermich, 816 S.W.2d at 198, 200-01. Thus, an insurance corporation’s residence is any place it keeps an office or agent to transact its usual and customary business. Id.

The respondent contends that Rothermich does not control because the insurance company there was not a Missouri corporation and did not designate a principal or home office in this state. Here, Shelter Mutual, as a Missouri insurance corporation, did list in its articles of incorporation “the location of its principal or home office.” sec. 379.210. However, unlike general and business corporations, no statute makes this location the residence of an insurance corporation. To the contrary, the statute requiring that domestic insurance corporations list their “principal or home office” existed when this Court decided Henning in 1939, and when the leg islature amended the general and business corporation law in 1943. Sec. 379.210, reenacting sec. 5950 RSMo 1939, reenacting sec. 5839 RSMo 1929, reenacting sec. 6250 RSMo 1919. The General Assembly’s amendment for general and business corporations did not alter the common law for corporations not covered by the amendment. See Wring v. City of Jefferson, 413 S.W.2d 292, 300 (Mo. banc 1967).

By changing the law for general and business corporations but not for insurance companies, the legislature left intact this Court’s definition of “residence” for insurance corporations. Under sections 508.010(2) and 508.040, foreign and domestic insurance corporations “reside” for venue purposes in any county where they have or usually keep an office or agent for the transaction of their usual and customary business. Rothermich, 816 S.W.2d at 200; Henning, 131 S.W.2d at 565.

IV.

Respondent contends that Adcock and Hahn & Phillips do not have common liability with Shelter and cannot be defendants in the same suit. In fact, the alleged negligence of the unidentified dump truck driver and of the tractor trailer driver (Ad-cock) combined to produce one injury to Larry Smith. See Costello v. City of Ellisville, 921 S.W.2d 134, 137 (Mo.App.1996); Hollis v. Blevins, 927 S.W.2d 558, 560-561 (Mo.App.1996). The cases of State ex rel. Turnbough v. Gaertner, 589 S.W.2d 290 (Mo. banc 1979), and Jinkerson v. Koehr, 826 S.W.2d 346 (Mo. banc 1992), are distinguishable because there, the separate liabilities arose from two separate automobile accidents, occurring six days and eleven months' apart, respectively. These and similar cases cited by respondent are unpersuasive here, where the events causing a single, indivisible injury occurred within minutes.

Contrary to Respondent’s claims, tort as well as contract principles will determine whether the Smiths recover on the uninsured motorist policy. Cobb v. State Sec. Ins. Co., 576 S.W.2d 726, 732 n. 4, 736 (Mo. banc 1979). The Smiths must prove “causal negligence on the part of the uninsured motorist” as well as a contractual basis for recovery. Id. at 732 n. 4; cf. sec. 379.203(1). Simply because the Smiths sue Adcock and Hahn & Phillips for negligence and Shelter Mutual for uninsured motorist coverage does not diminish the common liability of the defendants. See Rothermich, 816 S.W.2d at 196. Here and in Rothermich, the petitions allege that an unknown vehicle stopped negligently, forcing plaintiff off the road, and that a second driver negligently struck plaintiff as he/ she attempted to get back on the road. In both cases, the petitions contain separate claims for the first driver’s uninsured motorist benefits and the second driver’s negligence. Id. As in Rothermich, venue is proper in this case based solely on the residence of the uninsured motorist carrier. Id.

Respondent further argues that the Smiths have pretensively joined Shelter Mutual. Adcock and Hahn & Phillips, as defendants in the underlying suit, bear the burdens, both of proof and of persuasion, on their pretensive joinder claim. State ex rel. Breckenridge v. Sweeney, 920 S.W.2d 901, 902 (Mo. banc 1996). They must prove either (1) the facts known to plaintiffs when suit was filed did not support a reasonable legal opinion that a valid claim existed, or (2) the facts, even if true, do not state a claim. Id. at 902-903. Neither are proven here. The Smiths allege that an unidentified motorist negligently placed Larry Smith in peril just before Adcock hit his car and injured him. They further allege that under Shelter’s policy, “an uninsured motorist includes, but is not limited to, a hit-and-run motor vehicle which it defines as a motor vehicle whose owner or operator cannot be identified and which hits, or causes an accident without hitting, the insured.” (emphasis supplied). These facts state a claim for uninsured motorist benefits under the policy, so the defendants must prove that the alleged facts are untrue.

While defendants assert that the dump truck could have been identified, they have not met their burden. Because defendants cannot prove the petition’s allegations are untrue, and because those facts state a claim, defendants failed to establish pretensive join-der of Shelter Mutual.

y.

Venue is proper in Jackson County, a residence of Shelter Mutual. This Court now makes the alternative writ of mandamus peremptory. The presiding judge of Pettis County (where the ease pends) is joined for the purpose of transferring the case to the Circuit Court of Jackson County. Breckenridge, 920 S.W.2d at 904 (Mo. banc 1996).

The writ is made peremptory.

PRICE, LIMBAUGH, COVINGTON and WHITE, JJ., concur. WOLFF, J., concurs in separate opinion filed. NEILL, Special Judge, concurs in opinion of WOLFF, J. HOLSTEIN, J., not participating.

Footnotes

1

. All statutory citations are to RSMo 1994 unless otherwise indicated.