author: HYDE, Judge. PER CURIAM.

text:
    William F. NUSSBAUM, Respondent, v. KANSAS CITY STOCK YARDS COMPANY OF MAINE, a Corporation, Appellant.
    No. 48702.
    Supreme Court of Missouri, Division No. 1.
    April 9, 1962.
    Motion for Rehearing or to Transfer to Court En Banc Denied and Opinion Modified on Court’s Own Motion May 14, 1962.

      John B. Ewing, Jr., James E. Lockwood, Kansas City, for appellant, Brenner, Wim-mell, Ewing & Lockwood, Kansas City, of counsel.
    Lyman Field, James W. Benjamin, Rogers, Field & Gentry, Kansas City, Ethan Potter, Leavenworth, Kan., for respondent.
   HYDE, Judge.

Action for damages for personal injuries, in which plaintiff had a verdict and judgment for $82,106.20, from which defendant has appealed. The injury occurred in Kansas and the decisive question is whether or not the Kansas Workmen’s Compensation Law is applicable as plaintiff’s only remedy. Defendant contends that the court should have directed a verdict for it for this reason.

Defendant owned and operated stockyards located in Missouri and in Kansas. Its principal office was in Missouri. Plaintiff lived in Kansas and was hired in Missouri as a general utility man to work in defendant’s repair and maintenance shop located in Missouri, but sometimes he was sent into the yards in Kansas mainly to operate loading and grading machines and tractors. Defendant had a power plant in Kansas where plaintiff had put up some brackets at one time. He said there were three or four workmen who worked regularly there. Defendant also had a fertilizer factory in Kansas where plaintiff had worked 15 or 20 times with the loading machine. He said from three to five workmen worked regularly there. Defendant had a steel cattle bridge in Kansas over the Kaw River, the main deck of which was used for driving cattle between its yards in Missouri and Kansas. At a higher level, as a part of this bridge, was a catwalk or foot bridge which defendant was taking down. Some of its guard rails were being removed for use in building a hog scale. The first time any steel guard rails were removed was a few days before plaintiff’s injury and he had not helped at that time when 17-foot rails were removed. (The wood flooring of the catwalk had been removed previously.) On the day of his injury, plaintiff was told to help an employee (who had assisted in the previous removal) to remove guard rails. On that occasion, when plaintiff was injured, the steel rail being removed (an angle iron with five inches at the top resting on a bracket with three inches below riveted on the side) was 34 feet long and weighed about 400 pounds. When injured, by this rail falling, plaintiff was using an acetylene torch to cut the rivets holding the rail.

Defendant had rejected the Missouri Workmen’s Compensation Law and claims plaintiff’s only remedy is under the Kansas Act. Plaintiff, after commencing this action, filed “alternatively” a claim for compensation with the Workmen’s Compensation Commissioner of Kansas wherein he set forth that he was pursuing his common-law action against the defendant for damages but “because of the possibility of the running of the statutes of limitations against the claimant under the possible Workmen’s Compensation laws of the State of Kansas” he was filing an alternative claim and requesting that the same “be placed on the inactive docket of the Commission pending the outcome of the common-law remedy in the suit in Missouri which claimant has heretofore commenced.” Defendant made weekly payments ($35.00) to plaintiff for about eight months and paid hospital and medical bills ($1833.00) and the total of which ($2893.80) was deducted in reaching the amount of the verdict.

The Kansas law, in effect when plaintiff was injured, May 7, 1957, stated (G.S. 44-505, 1955 Supp.) “That this act shall apply only to employment in the course of the employer’s trade or business in the following hazardous employments: * * * factory * * * electric, building or engineering work * * * each of which employments is hereby determined to be especially dangerous, in which from the nature, conditions or means of prosecution of the work therein, extraordinary risk to the life and limb of the workmen engaged therein is inherent, necessary, or substantially unavoidable, and as to each of which employments it is deemed necessary to establish a new system of compensation for injuries to workmen.” This section also provided: “Agricultural pursuits and employments incident thereto are hereby declared to be non-hazardous and exempt from the provisions of this act.”

Sec. 44-508, G.S.1949, provided: “Definitions. In this act, unless the context otherwise requires: * * * (b) ‘Factory’ means any premises wherein power is used in manufacturing, making, altering, adapting, * * * any * * * articles for the purpose of trade or gain of the business carried on therein, including expressly any * * * electric power plant, and water power plant * * * machine or repair shop, salt plant, and chemical manufacturing plant. * * * (f) ‘Building work’ means any work in the erection, construction, extension, decoration, alteration, repair or demolition of any building or structural appurtenances, (g) ‘Engineering work’ means any work in the construction, alteration, extension, repair or demolition of a * * * bridge * *

It was also provided by Sec. 44 — 501, G.S. 1949: “If in any employment to which this act applies, personal injury by accident arising out of and in the course of employment is caused to a workman, his employer shall, subject as hereinafter mentioned, be liable to pay compensation to the workman in accordance with the provisions of this act. Save as herein provided no such employer shall be liable for any injury for which compensation is recoverable under this act * *

It was further provided by Sec. 44 — 507, G.S.1949: “It is hereby determined that the necessity for this law and the reason for its enactment exists only with regard to employers who employ a considerable number of persons. This act, therefore, shall only apply to employers by whom five (5) or more workmen have been employed within the state of Kansas continuously for more than one month at the time of the accident: * * * And provided further, That this act shall apply to mines and building work without regard to the number of workmen employed or the period of time employed.” (The one-month requirement was eliminated in 1957, Laws 1957, Ch. 293, Sec. 1; see also 1961 Supp., p. 648.)

The Kansas Supreme Court has said, in Shrout v. Lewis, 147 Kan. 592, 77 P.2d 973, 974: “In order to bring an employer within the act it is not enough that the work at which the laborer is employed is covered by the act, but it is also necessary that the work shall be a part of his employer’s trade or business.” The Supreme Court of Kansas also has held that “employers in nonhazardous trades or businesses, that is, those not expressly listed as hazardous under the act, are not subject to its provisions unless they affirmatively elect to operate under it.” Thorp v. Victory Cab Co., 172 Kan. 384, 240 P.2d 128, 132. Defendant herein has not elected to do so and has not made any reports of accidents, obtained any insurance, attempted to qualify as a self-insurer or in any way prior to plaintiff’s injury recognized any application of the compensation law to it. (It is intimated that it may have considered its main business exempt as employments incident to agriculture.) However, “an employer may have various trades or businesses, some of which are within the act and others which are not,” Thorp v. Victory Cab Co., 240 P.2d l.c. 132, and cases cited.

Nevertheless, as again pointed out in Martin v. Craig, 148 Kan. 882, 84 P.2d 853, G.S. 44-505 makes the act applicable “only to employment in the course of the employer’s trade or business” in one of the hazardous employments designated. In that case, the owner of an apartment house with 38 apartments and six dwelling houses, managed by an agent in charge of renting and collecting rentals, was held not under the act as being engaged in “building work” when he had a workman (who was injured) doing shingling work on two of the houses. The court said: “Our question then is whether under the facts and circumstances of this case the business of respondent was that of repairing buildings. In order for this to be the case this court has held that a substantial amount of the time and labor of the respondent must be devoted to it. * * * If we think of the word ‘business’ in its ordinary and accepted meaning then no one would say respondent was in the building business. The work described occupied too small an amount of his time and attention for this to be possible. If it should be held that this four day’s work on these two houses constituted engaging in the building business then every person who owned a building other than his residence and found it necessary to hire a workman to do some work on it would find that he was subject to the workmen’s compensation act. The legislature did not intend such a result.” (See also Setter v. Wilson, 140 Kan. 447, 37 P.2d 50.) The court held that the owner’s business was renting apartments and houses and collecting rents and not “building work”. By contrast in Shrout v. Lewis, supra, a farmer who had actually built several houses and apartments which he rented, was held to be in the “building work” business.

The Martin and Setter cases were cited and followed in Giltner v. Stephens, 163 Kan. 37, 180 P.2d 288, 295, 296. In the Giltner case, a farmer was building a large dairy barn on his farm. Plaintiff, a carpenter, sued for damages for his injuries and defendant claimed the Compensation Act applied. The court recognized that the work being done was “building work” but said: “[Djecision upon the question under consideration must be reached by application of the rule distinguishing between occasional work and the regular work of an employer.” The court stated: “It does not appear in the present case from the amended petition that the defendant habitually was giving a substantial part of his time and labor to the construction of barns or other structures. To the contrary, as hereinbefore set forth, the amended petition alleges, in substance, that the regular trade or business of the defendant was the operation of a dairy and stock farm. The petition refers to the building of only one barn and it may be fairly implied that the building of such barn was incident to the ordinary and regular agricultural pursuits of the defendant.” See also Campos v. Garden City Co., 166 Kan. 352, 201 P.2d 1017, 1019; Shuck v. Hendershot, 185 Kan. 673, 347 P.2d 362, 368.

Defendant’s business was not “engineering work”, at least so far as this record shows. Its business was operating 'stockyards for handling and marketing livestock, providing an office building for commission firms, a power house to furnish steam, hot and cold water and a plant to process manure and waste for use as fertilizer. It was not shown to have done any “engineering work” for others or to have engaged in such work as a substantial part of its own business. The only alteration or demolition of a bridge was done on its own bridge, used for driving cattle in its own yards; and so far as the record shows it had only this one bridge. It appears from this record that only on this occasion and one other was any such work done on this bridge and it was only done for the purpose of taking a few rails for use at another place, the footwalk of which they were a part having been abandoned. Applying the principle of Martin v. Craig (84 P.2d l.c. 854) and the other cases cited, we conclude that this work was a minor operation, which occupied too small an amount of time and attention of defendant to say that it was in the business of “engineering work”. Since it was only limited occasional work and not the regular work of the employer (applying the test of Giltner v. Stephens, 180 P.2d l.c. 295) “engineering work” was not shown to be part of defendant’s trade or business. In fact, this particular work really does not appear to have been done for the purpose of altering or demolishing the bridge but instead was mainly for the purpose of obtaining angle irons for use on another project. Although it might have resulted in some alteration and thus might come within the definition of “engineering work”, we must hold the record does not show that “engineering work” was a part of defendant’s trade or business. Therefore, we hold that the trial court correctly refused to direct a verdict for defendant.

Defendant alleges error in refusing offered Instruction 10 on plaintiff’s contributory negligence, saying that if the Workmen’s Compensation Act was inapplicable it was entitled to submit this defense. However, defendant was required to submit a correct instruction on contributory negligence and we find Instruction 10 was defective. (Whether it would have been reversible error to give it, we do not need to decide.) In Perkins v. Kansas City Southern Ry. Co., 329 Mo. 1190, 49 S.W.2d 103, 108, concerning submission of a defendant’s specifications of contributory negligence of the plaintiff, we said: “These specifications should be submitted in such a way that the jury may determine (1) whether they be true or false, (2) whether they constitute negligence under the surrounding facts and circumstances in evidence, and (3) whether they concurred with the negligence of defendant as a direct, proximate, and efficient cause or causes of the injuries and death complained of.” The offered instruction did not require a finding that the specifications submitted constituted negligence and submitted proximate cause in a somewhat indefinite manner.

Moreover, Instruction 10 stated “if the plaintiff knew that the rivets at the west end of the top railing at the time and place mentioned in evidence being dirty and rusty and thereby weak and by reason thereof and after the cutting of the east rivets and center rivets of the top railing, there was danger that said top railing may fall” and the jury found that “not-, withstanding said knowledge” plaintiff con-, tinued to work “without taking proper-safety measures in utilizing ropes to tie-the east end of said top railing to secure the same from falling” and found such failure to do so “proximately caused the railing to fall” then plaintiff could not recover. Thus the instruction did not clear-ly require a finding of plaintiff’s knowledge that the rivets at the west end were weak and that “there was danger that said top railing may fall” for that reason but seemed to assume that to be true if' those rivets were “dirty and rusty”. (Plaintiff said the rivets he cut were good' although rusted on top.) Furthermore, this instruction did not properly hypothesize the situation because the evidence did not show that the fall of the railing was caused by the rivets at the west end giving way or whether they gave way or not. Photographs in evidence (taken soon after plaintiff fell) indicate they did not because this rail apparently remained attached at the west end, after plaintiff was injured, the rail being shown hanging down from its west attachment but unattached at the east end and center. The top rails rested on brackets and plaintiff’s evidence tended to show that cattle crossing the bridge while he was working might have caused the detached part to be shaken off the brackets especially since there was also a strong wind blowing. We hold it was not error to refuse this instruction. In its reply brief, defendant complains of the refusal of Instruction 18 also submitting contributory negligence. However, plaintiff made no assignment of error as to refusal of this instruction in its original brief and even in its reply brief only claims from its refusal that the court would not permit the defense of contributory negligence. As to that issue, we note that Instruction 1, the main instruction authorizing a plaintiff’s verdict, negatived the defense of contributory negligence and that another instruction referred to it as an issue for the jury to decide.

Defendant also alleges error in permitting witness Benberg, an architect and engineer, to testify that its procedure in removing the railing was unsafe, claiming this was not a proper subject of expert testimony. In answer to a hypothetical question stating the number of men, their height, the equipment they were furnished, the topography and conditions at the bridge, how they were to work and asking “do you have an opinion, from your experience and your training and your knowledge of American building practices and standards, whether or not taking an angle iron down by cutting the rivets at each end where they were positioned as you have told the jury, and then attempting to remove it by ropes, by hand, these two men, have you an opinion whether or not that is a practical and reasonably safe method, according to the practice generally followed in this area and in the business of erection and demolition, movement of big steel like this ?” His answer was: “It is my opinion that it is unpractical and, of course, a highly unsafe procedure.” He later stated they should have used a crane and have had the work supervised by a competent supervisor. Defendant’s objection at the time did not state the ground now urged. The grounds then stated were that it called for a conclusion by the witness who was no demolition expert; that the conditions as they existed at the time were not described; and that the method testified to by plaintiff was not set forth. All of these grounds have been abandoned and the one now urged has not been properly preserved for review. Nevertheless, it is without merit because it seems reasonable that testimony of a witness familiar with proper and safe methods of moving heavy steel rails from considerable heights was a proper aid to a jury of laymen in passing upon the ultimate fact issue. See Carver v. Missouri-Kansas-Texas R. Co., 362 Mo. 897, 245 S.W.2d 96, 103, and cases cited.

Defendant’s final assignment is: “The damages awarded were grossly excessive and demonstrate that this verdict was based upon passion and prejudice.” Defendant does not seek remittitur, saying “such a drastic remittitur would be required to correct the award of damages as to be conclusive that the award was the result of passion and prejudice.” It was stated on oral argument, and not controverted, that defendant did not ask any remittitur in the trial court. Thus defendant’s assignment amounts to a claim that the verdict is the result of misconduct of the jury, the only remedy for which would be to set aside the verdict and order a complete new trial. “This Court recognizes a distinction between a verdict which is excessive and a verdict which is so grossly excessive as to indicate bias and prejudice. Jones v. Pennsylvania R. Co., 353 Mo. 163, 182 S.W.2d 157, 159; Stokes v. Wabash R. Co., 355 Mo. 602, 197 S.W.2d 304; Taylor v. St. Louis Public Service Co., Mo.Sup., 303 S.W.2d 608, 612. A verdict which is excessive is one in which the jury made an honest mistake in weighing the evidence as to the nature and extent of the injury and in fixing the damages and awarded a sum disproportionate to the amounts usually awarded for comparable injuries under the rule of uniformity. Such a mistake can be cured and corrected without a new trial, by requiring a re-mittitur of a portion of the amount awarded. A verdict which is so grossly excessive as to indicate bias and prejudice is one in which the jury was guilty of misconduct by fixing an excessive figure as a result of bias and prejudice engendered during the course of the trial. Such misbehavior vitiates the entire verdict, not only as to the amount of the award, but also as to the determination of liability, and cannot properly be corrected by a remittitur, Dye v. St. Louis-San Francisco Ry. Co., 361 Mo. 331, 234 S.W.2d 532; Knight v. Swift & Co., Mo.Sup., 338 S.W.2d 795, 801, but requires that the verdict in its entirety be set aside. Stokes v. Wabash R. Co., supra, 197 S.W.2d, l.c. 309, holds that an assignment of error of ex-cessiveness based upon bias and prejudice •of the jury will not serve to preserve the •question of the simple type of excessiveness first above defined.” Skadal v. Brown, Mo.Sup., 351 S.W.2d 684, 689.

As also stated in the Skadal case (351 S.W.2d l.c. 690), citing many cases, “this Court has consistently ruled that the mere size of a verdict — the fact that it may be excessive — does not in and of itself establish that it was the result of bias -or passion and prejudice, * * * without showing some other error committed in the trial.” The reason for this is explained in Jones v. Pennsylvania R. Co., supra (182 S.W.2d l.c. 159), quoting from Sofian v. Douglas, 324 Mo. 258, 23 S.W.2d 126, at page 129: Trial courts “may pass on the weight of the evidence in considering the size of a verdict * * *; whereas .appellate courts do not weigh the evidence in reviewing a law case, * * *; and in view of their better opportunity to measure the general effect of the trial proceedings on the jury, they (trial courts) may infer prejudice and bias from the size of the verdict alone, a thing which, as we have seen is held, appellate courts cannot do.” Thus the trial court may find “the verdict was so much against the weight of the evidence as to show bias and prejudice (Court’s emphasis.) It is not the function of an appellate court to pass on the weight of the evidence in a jury case and that is the reason an appellate court will not make a determination of bias and prejudice of the jury on amount of the verdict alone. Certainly it should not do so when this ground has been presented to the trial court and it has found against this contention.

In this case, plaintiff did suffer very severe disabling injuries. He fell 22 feet and landed on large rocks, on the river bank as riprap. His evidence showed brain concussion, with two hours’ unconsciousness, partial collapse of the right lung, four pelvic fractures, one extending into the hip joint, with fragmentation and displacement of bones, fracture of the sacrum and compression fracture of the first lumbar vertebrae. Plaintiff also had fractures of the tibia and fibula of his left leg, which has resulted in crooked union, atrophy, loss of motion and shortening of the leg, causing him to walk with a limp, requiring him to use a cane and to wear a built-up shoe; and comminuted fractures of the radius of the left forearm, with nonunion of a fracture at the distal end of the ulna, causing deformity of the wrist, loss of grip and loss of motion of fingers, wrist and shoulder. Plaintiff has headaches and dizziness, attributed to his head injury, pain and loss of motion from his pelvic and back injuries, and likewise pain and loss of motion in his left leg, hip and ankle. Plaintiff, after being in the hospital about two weeks, was allowed to go home in casts; but he was brought back for surgery for placing a steel plate with screws on his leg which required about another month in the hospital, with later hospitalization when the plate was removed and because of reinjuring his ankle. Plaintiff’s medical testimony was that he was 75% permanently disabled and that his injuries render him permanently industrially unemployable. Plaintiff has made a good recovery, considering the extent of his injuries, his pelvic fractures having healed; and defendant had him come back and work in its shop, first on crutches and then with a cane, for a period of more than a year. Plaintiff has since done some farm work and operated tractors but suffers pain in doing so and cannot continue for very long periods. His earning capacity is greatly reduced. Plaintiff was 47 years old at the time of the trial with a life expectancy of 27.15 years; before he was injured his annual earnings had been about $4,000.00. While this is a large verdict and perhaps even some remittitur reasonably might have been ordered upon consideration of the extent of plaintiff’s recovery, nevertheless because he is 75% disabled and industrially unemployable we cannot hold that such a verdict indicates misconduct of the jury due to passion and prejudice. This case appears from the record to have been fairly tried and defendant makes no claim of error as to any of the instructions authorizing plaintiff’s recovery. We have found defendant’s only two claims as to trial errors to be without merit; and the conduct of witnesses, parties and counsel appears from the record to have been orderly and proper, showing no reason for creating bias and prejudice of the jury-

The judgment is affirmed.

All concur.

On Motion for Rehearing

PER CURIAM.

Defendant has filed a motion entitled “Motion to Remand for Retrial in the Furtherance of Justice to Develop Issues Shown by the Opinion to be Material.” Defendant says on a retrial it can “show that a regular, constant and substantial portion of its business is ‘engineering work’.” Thus defendant seeks to have a retrial to permit it to produce evidence which was available to it at the original trial on its defense of applicability of the Kansas Workmen’s Compensation Act. It has long been our rule that “No appellate court shall reverse any judgment, unless it believes that error was committed by the trial court against the appellant, materially affecting the merits of the action.”' Sec. 512.160 RSMo, V.A.M.S., now Rule 83.13(b), V.A.M.R. Defendant’s motion and suggestions in support show no error committed against it which prevented it from presenting any such evidence. Therefore, this motion is overruled.

Defendant has also filed a Motion for Rehearing or in the Alternative Transfer to the Court en Banc, mainly re-arguing matters raised by the original briefs and ruled in the opinion. Defendant has claimed throughout that the applicability of the Kansas Workmen’s Compensation Act was for the trial court to rule as a matter of law. Plaintiff contends that this was a defense involving fact issues which had to be submitted to the jury. We agree that it could have been ruled as a matter of law if facts, making it applicable, had been shown by plaintiff’s evidence or if defendant had obtained admissions of them (see McKay v. Delico Meat Products Co., 351 Mo. 876, 174 S.W.2d 149, 155); but this was not done. Defendant makes the argument that we should consider, with plaintiff and the man working with him, all its employees engaged in any hazardous work under the Kansas Act although engaged in other work than “engineering work”; but defendant admits there is no Kansas decision so holding. (Defendant relies on Larson on Workmen’s Compensation, 773 Sec. 52.33.) In any event, the trouble with this contention is that it was not definitely shown by plaintiff’s evidence that defendant had five or more workmen employed in hazardous work “within the State of Kansas continuously for more than one month at the time of the accident” as required by Sec. 44-507, G.S.1949. It is true that defendant had evidence to so show but as plaintiff points out the credibility of such evidence was for the jury to determine. (See Simmons v. Kansas City Jockey Club, 334 Mo. 99, 66 S.W.2d 119, 121, 122.) Therefore, if defendant desired to rely on the defense of the applicability of the Kansas Act, it should have submitted the fact issues on which it depended. Defendant says it was misled by the position plaintiff took concerning the effect of the Missouri Workmen’s Compensation and its rejection by defendant. However, regardless of any position taken by plaintiff, defendant had the responsibility to show facts which made the Kansas Act applicable (unless they appeared from plaintiff’s evidence or were admitted) and to submit the issue by a proper instruction.

As to the other matters raised in this motion, we reaffirm the rulings made in our opinion.

The motion for rehearing or to transfer to Banc is overruled.


source: Caselaw Access Project

author: DALTON, Judge. STORCKMAN, Judge

license: Public Domain

text:
    STATE ex rel. Charles BOWDEN, Relator, v. Honorable Richard C. JENSEN, Respondent.
    No. 49140.
    Supreme Court of Missouri, En Banc.
    Aug. 6, 1962.

      Albert J. Yonke, Kansas City, for relator.
    Joseph B. Bott, Kansas City, for respondent.
   DALTON, Judge.

This is an original proceeding in mandamus to require respondent, Judge of Division 13 of the Circuit Court of Jackson County, Missouri, at Independence, to retain jurisdiction of a particular defendant in a particular personal injury damage suit pending before him in said Circuit Court of Jackson County. The mandamus proceeding in this court was instituted by relator Charles Bowden, plaintiff in said pending personal injury action, who now seeks to require respondent to retain jurisdiction of the person of defendant Marvin Unnerstall, one of the defendants in the action pending before respondent. Respondent has sustained defendant Unnerstall’s motion to-quash service and to dismiss because of improper venue as to said defendant.

Respondent does not question the facts, stated in relator’s brief filed in this court to the effect that relator Charles Bowden is a resident of Boone County, Missouri,, and filed the particular personal injury lawsuit in the Circuit Court of Jackson County, Missouri, against Marvin Unnerstall, a resident of Franklin County, d/b/a Sparky’s Service Station and the D-X Sunray Oil Company, a corporation, for personal injuries sustained by relator on or about February 9, 1960, at a service station operated by defendant Unnerstall in Franklin County, Missouri, but owned and under the control of D-X Sunray Oil Company (hereinafter referred to as D-X), a Delaware corporation, whose registered agent in Missouri is and was the C. T. 'Corporation System, located at 314 N. Broadway in the City of St. Louis, Missouri. D-X also had an office for the conduct of its general and ordinary business in Jackson County, but had no such office in the City of St. Louis.

Service of process was obtained on defendant D-X at its general business office in Kansas City and personal service was, thereafter, obtained on defendant Unner-stall in Franklin County, where he resides. Thereafter, defendant Unnerstall, appearing specially for the purpose of his motion, filed a motion to quash the service of process upon him and to dismiss the action against him because of improper venue. Respondent sustained that motion, as stated. D-X filed a motion to dismiss for failure to state a claim on which relief could be granted or, in the alternative, for a more definite statement, which motion was sustained in part; and plaintiff was given twenty days to plead. ’The controversy here concerns the question of jurisdiction of the Circuit Court of Jackson County over the person of defendant Marvin Unnerstall and a deter-initiation of that question involves a construction of the venue statutes of this state.

Relator relies particularly on Secs. 508.010(2) and 508.040 RSMo 1959, V.A.M.S. and State ex rel. Stamm v. Mayfield, Mo.Sup., 340 S.W.2d 631, while respondent relies upon Secs. 508.010(2) and 351.375 RSMo 1959, V.A.M.S. and State ex rel. Whiteman v. James, 364 Mo. 589, 265 S.W.2d 298.

Before considering the primary issue presented a second point raised by relator must be disposed of. Relator contends that “venue statutes confer a personal privilege and that only the party entitled to complain of lack of venue may do so.” Robinson v. Field, 342 Mo. 778, 117 S.W.2d 308, 318. However, relator then proceeds to argue that because defendant D-X did not attack the jurisdiction of the Circuit Court of Jackson County, but entered its general appearance for all purposes, filed its motion to make more definite and certain, waived any question of venue and submitted itself to the jurisdiction of the Circuit Court of Jackson County, the defendant Unnerstall may not now attack the jurisdiction of the court “as to himself on the ground that venue is not proper as to D-X (when the venue question has been waived by that defendant).”

We do not agree that defendant Unnerstall has attacked the jurisdiction of the court over his person on the ground that venue is not proper as to his code-fendant D-X, but rather he is attacking the jurisdiction of the court on the ground that venue is improper as to him, since he is joined with another defendant and, when so joined, venue is improper as to each defendant, because in such case the statute provides that “When there are several defendants, and they reside in different counties, the suit may be brought in any such county.” Sec. 508.010(2) RSMo 1959, V.A. M.S. And the question here is whether defendant D-X resides in Jackson County within the meaning of said provision, so that the court has obtained jurisdiction of defendant Unnerstall, there being no question as to where defendant Unnerstall resides. In such situation any waiver of improper venue by D-X is not controlling or binding in any manner on defendant Unnerstall, nor is it material that D-X has not questioned the court’s jurisdiction. Proper venue is necessary before service of process will confer jurisdiction over the person of a defendant who presents the issue. State ex rel. Bartlett v. McQueen, 361 Mo. 1029, 238 S.W.2d 393, 395.

Relator insists that “the residence for venue purposes of a foreign corporation, when joined as a defendant with an individual, is governed by the provisions of Sec. 508.040 RSMo 1959 [V.A.M.S.].” That section, in part, provides that: “Suits against corporations shall be commenced either in the county where the cause of action accrued, * * * or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.” That section would clearly apply if this action were against the defendant corporation alone, but, as indicated above, Sec. 508.010 RSMo 1959, V.A.M.S. provides that: “Suits instituted by summons shall, except as otherwise provided by law, be brought: * * * (2) When there are several defendants, and they reside in different counties, the suit may be brought in any such county; * * *.” See State ex rel. Whiteman v. James, supra, 265 S.W.2d 298, 299 [1]. It is apparent that relator “bases his right to mandamus on the proposition that it appears as a matter of law that venue should be in Jackson County, because D-X Sunray Oil Company maintains an office for the transaction of its usual and customary business in Jackson County and that service was obtained on D-X at said location.” Relator further insists that in the case of State ex rel. Stamm v. Mayfield, supra, “this court considered an identical factual situation with the exception that the foreign corporation involved (in that case) was an insurance company.” Relator further says that in the Stamm case, supra, “the court disapproved of State ex rel. Whiteman v. James, [364 Mo. 589] 265 S.W.2d 298, insofar as it related to foreign corporations,” in that it held “that Sec, 351.625 RSMo 1959 did not incorporate the last sentence of Sec. 351.375”, and that the former Sec. 351.625 “incorporated only that part of Sec. 351.375 that directed the 'manner’ of changing the registered office or agent and did not incorporate the last sentence of Section 351.375 which had nothing to do with the mechanics of a change but attempted to establish the residence of a corporation.” Relator then insists that “since there is no specific statute locating the residence of a foreign corporation, Section 508.040, R.S.Mo.1949, [V.A.M.S.] would govern the county in which such a corporation could be sued” and that said section provides for service “in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.” Relator concedes that the “pivotal issue is: When [sic] does a foreign corporation ‘reside’ for the purpose of bringing a lawsuit against it together with an individual? Is its county of residence where its registered office is located or does it ‘reside’ for this purpose wherever it does business ?” Relator insists that in view of the opinion in the Stamm case and an analysis of the various applicable statutes, including Secs. 351.375, 351.620, 351.625, 351.630, 508.010(2) and Sec. 508.040 RSMo 1959, V.A.M.S., the venue in Jackson County is proper as to both defendants named in relator’s pending action in the Circuit Court of Jackson County; and that the alternative writ of mandamus should be made peremptory.

State ex rel. Stamm v. Mayfield, supra, was a mandamus proceeding, wherein this court said: “The question involved is whether an action may be maintained against a foreign insurance company and its employee, or either of them, in the county where the insurance company maintains its principal office when the insurance company has not filed with the secretary of state a designation of a registered office and registered agent, and the codefendant employee resides in a county other than that in which the suit is brought.” (Italics ours.)

Relator Stamm had sued one Moore, and The Equitable Life Assurance Society of the United States jointly in the Circuit Court of the City of St. Louis, to recover damages arising out of an automobile collision which occurred in the City of St. Louis, where plaintiff Stamm lived. The insurance company, a New York corporation, maintained its divisional office in the City of St. Louis for the transaction of its business in said city and in the State of Missouri and in twelve other states. Summons was first served upon the insurance company by the Sheriff of St. Louis, but subsequently the company was summoned by the service of process upon the Superintendent of Insurance in Cole County. The defendant Moore, alleged to be an employee and servant of the insurance company, was served with summons in the County of St. Louis, his place of residence. The defendant insurance company had not designated a registered office or a registered agent in Missouri pursuant to Secs. 351.620 or 351.370 RSMo 1949, V.A.M.S. Each defendant in the said pending damage suit appeared specially and filed separate motions to quash the summons and return of service. The motions were heard and sustained by the respondent Judge.

In determining the issues presented in that case this court held that the General and Business Corporation Act of Missouri (Laws 1943, p. 410) did not apply to insurance companies. The court further said: “Sections 351.370, 351.375 and 351.380 of the Act govern domestic corporations in this regard, and §§ 351.620, 351.625 and 351.630 apply to foreign corporations. But insurance companies are not within the purview of these statutes because they are among the corporations specifically excepted by these provisions of § 351.690: * * The court also pointed out that the title of the mentioned Act stated that insurance companies were among the corporations excepted from the provisions of the mentioned Act. Laws 1943, p. 410.

The respondent Judge in the case of State ex rel. Stamm v. Mayfield, supra, had based his action in sustaining the motions of defendants to quash service and dismiss upon this court’s opinion in State ex rel. Whiteman v. James, supra. In undertaking to distinguish that case, the writer of the opinion in State ex rel. Stamm v. Mayfield, supra, correctly reviewed the facts and holding in the Whiteman case, as follows:

“State ex rel. Whiteman v. James, 364 Mo. 589, 265 S.W.2d 298, 300, involved a •casualty which occurred in Holt County. The plaintiff was a resident of Jackson •County. The corporate defendant was a foreign corporation engaged in the baking business and licensed to do business in Missouri with its registered office and agent in the City of St. Louis, but it also maintained an office and transacted business in Jackson County. The individual defendant, alleged to be an agent and servant of the corporate •defendant, resided in Andrew County. The suit was filed in Jackson County against the corporate and individual defendants. The corporate defendant was served with summons at its place of business in Jackson County and also upon its registered agent at the registered office in the City of St. Louis. The individual defendant was served in Andrew County, the place of his residence. On motion by the defendants, the action was ordered abated for want of proper venue in Jackson County. This court en banc sustained the ruling of the circuit court and held that venue was one of the purposes within the purview of the last sentence of § 351.375 subd. 4, RSMo 1949, V.A.M.S., which provides that the 'location or residence of any corporation shall be deemed for all purposes to be in the county where its registered office is maintained’ and that the action joining both defendants could only be brought in the City of St. Louis, ‘the legal residence’ of the corporate defendant or in Andrew County where the individual defendant resided.”

In the Whiteman case, this court had followed the reasoning in the case of State ex rel. O’Keefe v. Brown, 361 Mo. 618, 235 S.W.2d 304, although the Whiteman case involved a foreign corporation licensed to do business in Missouri, while the corporation involved in the O’Keefe case was a domestic corporation.

In the Stamm case, counsel for respondents in oral argument had conceded that, if the decision in the Whiteman case did not apply, venue was properly in the Circuit Court of the City of St. Louis; hence the writer of the opinion in the Stamm case, having reached the conclusion that the Whiteman case was not controlling, proceeded to further discuss that case.

In the Stamm case the court further said:

“Since foreign insurance corporations are not required to designate a registered office and registered agent under the general corporation laws, the construction placed upon § 351.375 subd. 4 by State ex rel. Whiteman v. James, supra, has no application in the present case. There is at least one other cogent reason why State ex rel. White-man v. James is not decisive of this case.

“Section 351.375 applies to foreign corporations only to the extent that § 351.625 incorporates it by reference, and the last sentence of § 351.375 which was the basis of the James decision is not properly in-cludable in the reference. * * * ” (340 S.W.2d 631, 633.)

The court further said: “The last sentence of § 351.375 reads as follows: ‘The location or residence of any corporation shall be deemed for all purposes to be in the county where its registered office is maintained.’ Since this sentence has nothing to do with the manner of changing registered offices or agents, it cannot be said to be incorporated by reference into § 351.-625 relating to foreign corporations.” (340 S.W.2d 631, 634.)

The court also said: “State ex rel. Whiteman v. James, 364 Mo. 589, 265 S.W.2d 298, dealt with a foreign corporation but not an insurance company. We have examined our files and the briefs in the James case and find that each party presented his case as if the last sentence of § 351.375 subd. 4 were applicable although the relator questioned its constitutionality while the respondent claimed its advantages for the foreign corporation. The contention that § 351.625 did not have the effect of incorporating by reference the last sentence of § 351.375 into the foreign corporation statutes was not presented. To the extent that it holds that the last sentence of § 351.375 is applicable to foreign corporations, State ex rel. Whiteman v. James is disapproved. Because the corporation involved in the present case is both an insurance company and a foreign corporation, the James case is not controlling.” (Italics ours.) (340 S.W.2d 631, 634.)

It will be noted that these several statutory provisions of the General and Business Corporation Act, considered and construed in the foregoing portion of said opinion, admittedly, had no application whatsoever to a foreign insurance company, or to the particular foreign insurance company involved, or to the facts of the case before the court for decision; hence the conclusions stated, while helpful in distinguishing the Whiteman case from the issue presented in the Stamm case, and while perhaps helpful in supporting the essential conclusion many times stated in the opinion, to wit: that the Whiteman case was not controlling under the facts in the Stamm case, nevertheless the conclusions reached as to the mentioned sections and the construction indicated were unnecessary to the disposition of the case before the court and hence they constituted mere obiter.

Analyzing the opinion in the Stamm case as carefully as we are able, and excluding therefrom the review of the facts in the Whiteman case, the review of the provisions of the General and Business Corporation Act, the discussion by which the Whiteman case was distinguished from the facts in the Stamm case and excluding the mentioned holdings unnecessary to a decision, we reach the conclusion that the Stamm case was clearly decided by this court upon the basis of certain admissions of counsel and the agreed statement of facts and the stipulations filed, from all of which the court clearly reached the conclusion that the mentioned foreign insurance company involved in that case, which had no registered office or registered agent in Missouri under any statute, resided in the City of St. Louis within the meaning of the provisions of Sec. 508.010, subd. (2), and hence the venue was proper and the Circuit Court of the City of St. Louis had jurisdiction not only of the said foreign insurance company, but also of the individual defendant who resided in St. Louis County. Hence, this court held that the respondent had erred in sustaining the motions and quashing the summons and service of process as to each defendant in the said case lately pending before him and our alternative writ was, accordingly, made peremptory.

The Stamm case is not controlling here, because the facts stipulated and the relationship of the parties in that case are not the same as in the case now before this court. The question of proper venue in the Stamm case turned, as stated, upon the facts stipulated in the mandamus proceeding, wherein it was agreed that the action was instituted in the City of St. Louis against a foreign insurance corporation which had not designated either a registered office or registered agent in the State of Missouri, but maintained a divisional office in the City of St. Louis for the transaction of its usual and customary business in said city, and also in the State of Missouri and in twelve other states. It was further admitted by counsel for respondent that if the Whiteman case did not apply, the venue of the mentioned case was properly in the City of St. Louis. The effect of the Stamm decision, as we view it, was to hold that the said foreign insurance corporation, under the particular facts, resided in the City of St. Louis within the meaning of Sec. 508.-010, subd. (2), and that, therefore, the venue of the case was proper, and the trial court had jurisdiction of both parties, although the individual defendant resided outside of the City of St. Louis.

The ultimate decision in the Whiteman case was not overruled by the decision in the Stamm case and the criticism of the Whiteman case, whether proper or improper, is not decisive of the issues in the case now before us for decision. On the other hand, the facts and issues in the Whiteman case directly conform to the facts and issues in the present case and respondent insists the decision in the Whiteman case controls.

In this case, as in the Stamm case, we are confronted with the construction and application of Sec. 508.010, subd. 2 RSMo 1959, V.A.M.S., but as applied to a totally different state of facts. The question presented here is, where does a foreign business corporation (that has complied with Sec. 351.620 RSMo 1959, V.A.M.S., and maintains a registered office and registered agent at a specific location in this State of Missouri) “reside” for the purpose of determining venue under Sec. 508.010, subd. 2, in an action instituted against it and one or more individuals, and where the suit is not instituted in a county where one or more of the individual defendants reside? As far as domestic corporations organized under the general business laws of Missouri are concerned that issue is settled by the closing sentence of Sec. 351.375 RSMo 1959, V.A.M.S., as follows: “The location or residence of any corporation shall be deemed for all purposes to be in the county where its registered office is maintained.”

As stated, relator Charles Bowden did not institute this action in Franklin County where the individual defendant Unnerstall resided, nor in the City of St. Louis where D-X, a foreign business corporation, maintained a registered office and registered agent as required by Sec. 351.620 RSMo 1959, V.A.M.S. Instead, he instituted the action in Jackson County where D-X maintained an office and agent for the transaction of its usual and customary business. The corporation did not object to being sued in Jackson County. Only the individual has raised the issue of improper venue and only the rights of the individual defendant are involved in this case.

Webster’s New International Dictionary (second edition, unabridged) defines the word “reside” as meaning “To settle oneself or a thing in a place; to be stationed; to remain or stay; to dwell permanently or continuously; to have a settled abode for a time; to have one’s residence or domicile; specif., to be in residence, as the incumbent of a benefice. To have an abiding place; to be present as an element; to inhere as a quality; to be vested as a right.”

While, of course, a corporation cannot have a residence in the sense that a natural person does, yet it may have a definite, fixed and certain location where its legal representatives may be found. In 13 Am.Jur. 281, Sec. 147, it is said: “Residence is an attribute of a natural person, and can be predicated of an artificial being only by a more or less imperfect analogy. Strictly speaking, a corporation can have no local residence or habitation. It has been said that a corporation is a mere ideal existence, subsisting only in contemplation of law — an invisible being which can have, in fact, no locality and can occupy no space, and therefore cannot have a dwelling place. However, the sovereignty creating the corporation may give to it a local habitation or residence in law, if not in fact.”

When a foreign business corporation wishes to do business in this state it must comply with Sec. 351.620 RSMo 1959, V.A.M.S. and it seems to us that the very purpose of that section is to give the foreign business corporation a fixed, definite and certain location where a representative of the corporation may be found. In effect, compliance with the statute gives the corporation what in law amounts to a definite and fixed residence in this state. Only one such residence is required.

In the case of Kimmerle v. City of Topeka, 88 Kan. 370, 128 P. 367, 368, 43 L.R.A.,N.S., 272, the court said: “The statute now under consideration is especially one in which residence must be regarded as attaching to a singe locality, and to no other. * * * If residence, in this sense, may be attributed to a corporation at all, it cannot result from the doing of business in the city; and it cannot be applied to more than one locality.

“Wherever a corporation may be regarded as having a residence at a particular place, and the situation is such that it can be regarded as having but one, that place must be ‘that in which it has its headquarters, or such offices as answer, in the case of a corporation, to the dwelling of an individual.’ Galveston, etc., Railway v. Gonzales, 151 U.S. 496, 504, 14 Sup.Ct. 401, 404, (38 L.Ed. 248).”

It is true that Sec. 508.040, supra, expressly provides that: “Suits against corporations shall be commenced either in the county where the cause of action accrued, * * * or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.” But that section applies to suits instituted against the corporation alone, while Sec. 508.010, subd. (2), supra, specifically applies when the legal rights of others are involved and they are joined as defendants with the corporate defendant. State ex rel. Whiteman v. James, supra, and cases there cited.

The theory that Sec. 351.620 was intended to give foreign business corporations a specific, definite and certain residence in this state, and that Sec. 508.010, subd. (2) should be construed with it, conforms to good business practice and the proper protection of the rights of individual defendants who may be joined with corporate defendants. Such a construction makes for definiteness and certainty and an individual defendant when so joined may immediately and definitely determine whether the venue of the action is proper or improper as to him. It may not make any difference to such a foreign business corporation in what county the plaintiff may file his action, but, on the other hand, it may be vitally important to the particular individual defendant the plaintiff seeks to join as an additional defendant in the action.

To illustrate the point, if we assume that “X”, a foreign business corporation, authorized to do business in Missouri, had or usually kept an office or agent for the transaction of its usual and customary business in every county in the State of Missouri and that a plaintiff could institute an action against it alone in any such county (Sec. 508.040) the defendant corporation would have the facts within the personal knowledge of its officers or employees as to whether or not the venue of the action was proper as to it, but if we assume that the “X” corporation has a registered office and registered agent in the City of St. Louis, and plaintiff “Z” brings a suit against the “X” corporation in Pemiscot County and joins as an additional defendant one “Y”, a resident of Holt County, how would defendant “Y” go about determining whether the venue of the suit in Pemiscot County was or was not proper as to him? If we were to hold that the foreign corporation “X” “resided” in every county in the state in which it had an office or agent for the transaction of its usual and customary business, then defendant “Y” would promptly be faced with an uncertain issue of fact, as to whether the “X” corporation was doing business as usual and customary in that county. Defendant “Y” would have to determine an issue of fact, or have the court determine it, before he would know whether the venue of the suit was proper as to him, and whether the circuit court of that county had acquired jurisdiction of him.

We think the only legally sound, practical and satisfactory construction to be placed upon Sec. 508.010, subd. 2 when considered together with Sec. 351.625 is to hold, as we must and do, that a foreign business corporation “resides” in the county where its registered office and registered agent is located under Sec. 3S1.620. This conclusion is supported by the decision reached in the case of State ex rel. Whiteman v. James, supra, which has not been overruled, and it is consistent with the statute applicable to domestic corporations, Sec. 351.375, including the closing sentence thereof, and is also consistent with the conclusion reached by this court in State ex rel. O’Keefe v. Brown, supra, construing Sec. 351.375.

The Circuit Court of Jackson County obtained no jurisdiction of the person of defendant Unnerstall, since the venue of the action was improper as to him. Our alternative writ of mandamus was improvidently issued and it should be quashed.

It is so ordered.

WESTHUES, C. J., and EAGER, LEE-DY and HOLLINGSWORTH, JJ., concur.

STORCKMAN, J., dissents in separate opinion.

HYDE, J., dissents and concurs in separate dissenting opinion of STORCKMAN, J.

STORCKMAN, Judge

(dissenting).

I readily agree, as stated in the majority opinion, that State ex rel. Stamm v. Mayfield, Mo., 340 S.W.2d 631, is not controlling on the facts of this case. Stamm involved a foreign insurance company which was specifically exempted from the provisions of Chapter 351, RSMo 1959, V. A.M.S. What was said in the Stamm case regarding the application and construction of § 351.375, subd. 4 and related sections was not necessary to the decision, but the question is now squarely before the court.

I am unable to convince myself that State ex rel. O’Keefe v. Brown, 361 Mo. 618, 235 S.W.2d 304, State ex rel. Whiteman v. James, 364 Mo. 589, 265 S.W.2d 298, and the majority opinion in this case correctly apply and construe § 351.375, subd. 4. Therefore, I am constrained to state as briefly as possible my views before lapsing into the silence becoming one who is compelled but not convinced.

As to the construction of the provision in question, I agree with the reasoning in the dissenting opinion of Judge Hyde, concurred in by Judge Ellison, in State ex rel. Whiteman v. James, 265 S.W.2d loc. cit. 301, and its conclusion that § 351.375, subd. 4 “only adds another office (the registered office) to those where service can be made and venue established.”

First the problems relating to the application of subd. 4 of § 351.375 to various kinds of corporations should be noted briefly. By express provision, domestic and foreign corporations are treated separately in Chapter 351. Section 351.015(1) provides that the term “corporation” as used in the chapter does not apply to foreign corporations unless the context so requires. Section 351.375 applies to domestic corporations but does not by its terms include foreign corporations. The O’Keefe case involved a Missouri corporation but there was no showing that it had an office in Dade County where it was sued or that there was any attempt to serve it as a resident of that county. The ground of venue, under a special statute relating to motor carriers, was that the corporation operated in the county. This is comparable to the right to sue a corporation in the county where the cause of action accrued under § 508.040. Such provisions apply to suits against the corporation alone but are not sufficient to justify bringing in nonresident defendants under § 508.010(2). State ex rel. Henning v. Williams, 345 Mo. 22, 131 S.W.2d 561, 565[7]; Heifer v. Hamburg Quarry Co., 208 Mo.App. 58, 233 S.W. 275, 277[1]; State ex rel. Bartlett v. McQueen, 361 Mo. 1029, 238 S.W.2d 393, 395-396 [3]. It was unnecessary in the O’Keefe case to decide the application and construction of § 351.375 because a conflict between that section and § 508.010(2), as interpreted in State ex rel. Henning v. Williams, 345 Mo. 22, 131 S.W.2d 561, was not presented.

The Whiteman case involved a foreign corporation to which § 351.375 was not applicable unless made so by the cross-reference in § 351.625. This subject is treated in the Stamm case, 340 S.W.2d loe. cit. 633-634, and will not be repeated here.

This phase of the overall problem is mentioned to demonstrate the difficulty of applying the new provision within constitutional limitations. On the face of the statutes referred to, the new provision would apply to domestic corporations but not to foreign corporations or insurance companies, domestic or foreign, the latter being exempted from the coverage of these sections of the chapter. As to general and business corporations, however, acceptable uniformity might he attained under § 351.-575 which provides in substance that a foreign corporation shall enjoy the same, but no greater rights and privileges than a domestic corporation and shall be subject to the same duties and restrictions. The problems of applying the statute have not been discussed or decided by the cases.

The important thing, of course, is the interpretation of subd. 4 of § 351.375 and its effect upon § 508.010 and related statutes. Hence a reference to the status of the venue laws at the time the new provision was adopted may be helpful.

Prior to the enactment of § 351.375 in 1943, all questions of residence and venue involved in the present case had apparently been settled by State ex rel. Henning v. Williams, 345 Mo. 22, 131 S.W.2d 561, which was an original proceeding in prohibition to prevent the respondent judge from exercising jurisdiction in a personal injury case on the ground that the venue was improper as to the individual defendant joined with a corporate defendant. The case involved a construction of clause 2 of § 720, RSMo 1929, which was part of the general venue statute and read then as now: “When there are several defendants, and they reside in different counties, the suit may be brought in any such county.” See Section 508.010(2), RSMo 1959, V.A. M.S. The court posed the question for decision as follows, 131 S.W.2d loe. cit. 562: “So the question is whether a foreign corporation licensed to do business in this state and having an office and place of business in some county is a resident of that county for the purposes of service under clause 2 of Sec. 720.” Emphasis supplied.

After considering and discussing the cases and cognate statutes, the court held that a foreign corporation, for the purpose of service under the general venue statute, is a “resident” of any county in which it has an office and place of business, stating 131 S.W.2d loe. cit. 565 [8]: “But all these decisions and the statutes cited show that a licensed foreign corporation must have one or more residences in the state where it is open to service. If that is so; and if under Sec. 723, supra, [now § 508.040]' when foreign or domestic corporations are sued alone, the venue of actions against them is in ‘any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business,’ we 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. 720 [now § 508.010].” Emphasis supplied.

State ex rel. Columbia National Bank of Kansas City v. Davis, 314 Mo. 373, 284 S.W. 464, cited and referred to in Hen-ning as “an exhaustive banc decision” also held that § 508.010(2), then § 1177, applied to all defendants including corporations sued with natural persons or other corporations, and that corporations may have a residence the same as do natural persons. 284 S.W. loc. cit. 470[9, 10].

In view of these Missouri decisions involving the precise question of the residence of corporations under venue statutes here involved, the reliance of the majority opinion upon the Kansas case of Kimmerle v. City of Topeka, 88 Kan. 370, 128 P. 367, seems unnecessary and likely to be misleading in this and future cases especially in view of quotations made from the opinion without relation to the facts. The Kim-merle case involved a statute which provided that city commissioners could not adopt a resolution to pave or improve a city street unless it had on file a petition “signed by the resident owners of not less than one-half of the feet fronting or abutting upon such street”. The question involved was whether a nonresident railroad corporation was a “resident owner” within the meaning of the statute. Moreover, the case recognizes that whether a corporation is considered a resident of a particular place depends upon the connection in which the case arises and the purposes of the statute involved. If authorities from other states need to be consulted, we should first go to the decisions of Illinois since our corporation code follows rather closely the Illinois Business Corporation Act as it existed prior to 1943. 17 V.A.M.S., pp. 299-301. But primarily the provision in question should be construed in the light of Missouri statutes and Missouri decisions pertaining to venue and corporate residence.

The first part of § 3S1.375 deals with the manner in which a registered agent or the address of a registered office may be changed. The last sentence of subd. 4 of this statute is the provision with which we are here concerned; it reads as follows: “The location or residence of any corporation shall be deemed for all purposes to be in the county where its registered office is maintained.” The O’Keefe and Whiteman cases seem to regard the provision as if it reads “for all purposes of venue”, but it does not have that effect. At best, venue is only one of several purposes involved. Service of summons, taxation, and attachment might be among other purposes intended. The word “all” modifies “purposes” and not the various items involved. In the present case, the sentence should be considered as if it read: “The location or residence of any corporation shall be deemed for the purpose of venue to be in the county where its registered office is maintained.” The language of the provision standing alone falls short of precluding any other location or residence for the purpose of venue and service of summons.

The disjunctive “or” in the phrase “location or residence” indicates that the location and residence terms are used as alternatives and more or less interchangeably. So far as I can discover, the word “location” does not appear anywhere in the new corporation code adopted in 1943; but it does appear in the previous statutes. Section 5011, RSMo 1939, provides that among other things the articles of incorporation shall set forth the corporation’s “permanent place of location”. Section 5009 provides the manner in which a corporation may “change its location from the county in which it is located to some other county in the state.” Thus “location” under previous statutes was in legal effect a place of corporate residence. Prior to the new code, a foreign corporation qualifying in this state was required to file a sworn statement setting forth among other things the principal office or agent in Missouri and the address where legal service may be obtained upon it by serving such agent and to maintain an office or place in the state where legal service may be obtained upon it. Sections 5074 and 5072, RSMo 1939.

These provisions, however, were not held to be preclusive of the other venue and service statutes then in force. On the contrary, it was held that a foreign corporation upon being licensed in Missouri becomes domesticated to an extent and “must have one or more residences in the state where it is open to service.” State ex rel. Henning v. Williams, 345 Mo. 22, 131 S.W.2d 561, 564-565[5-9]. Under the new code, the registered office and the registered agent are substituted for the location and the principal office and agent previously provided. The new provisions are more clear cut and uniform, but I can find no intent to make a radical change in the venue laws.

Subdivision 4 of § 351.375 must be construed in connection with other venue statutes such as § 508.010(2) which provides that “when there are several defendants, and they reside in different counties, the suit may be brought in any such county.” The applicable rules of construction are well known. Practically all of the rules that we need to consult are stated in State ex rel. Columbia National Bank of Kansas City v. Davis, 314 Mo. 373, 284 S.W. 464, 469. That case was also concerned with construing and correlating venue statutes. In general the rules stated in Columbia National Bank are: Statutes should not be construed so as to render another statute meaningless unless the legislative intent to do so is clearly expressed; acts relating to venue generally and to venue against corporations should be construed together as in pari materia though enacted at different times and as parts of different statutes; all acts relating to the same subject and having the same general purpose should be read together as constituting one law; apparently conflicting statutes should be harmonized and effect given to each so far as reasonably possible, and it will not he presumed that the general assembly intended to repeal an earlier statute or leave contradictory enactments on the statute books; and statutes should not be construed as enacting a scheme of venue in civil cases not covering all possible situations unless the plain language of each is susceptible to no other construction. These rules of construction are approved and applied generally. See 92 C.J.S. Venue § 5, p. 675.

Applying these and other applicable rules of construction, I can only conclude that the legislative intent was to make sure that another place of venue and service was designated or continued as it was under the prior law; it was not the legislative intent to destroy the effectiveness of clause 2 of § 508.010 as it had been interpreted and construed in the Henning case. This, I believe, is the purport of the dissenting opinion in State ex rel. Whiteman v. James to which I refer for a more succinct and better presentation than I have made here.

Section 351.380 provides that the registered agent of a corporation “shall be cm agent of such corporation upon whom any process, notice, or demand required or permitted by law to be served upon a corporation may be served.” Emphasis added. This does not say that the registered agent is exclusively the person upon whom the summons shall be served; in fact the section also provides that nothing therein contained shall limit or affect the right to serve process in any other manner permitted by law.

Under the view of the majority opinion, corporations, by a judicious choice of a registered office, will be given greater control over the place where they can be sued with other defendants, corporate or individual. Also under the majority view what would the situation be if the registered office is not maintained or the office of the registered agent becomes vacant for any reason as is contemplated by §§ 351.375 and 351.625? In such cases, the statutes provide the means to change registered offices and agents, but there is no provision for an alternate venue if the corporation neglects to do so, unless the venue provided by subd. 4 is in addition to the provisions of §§ 508.010 and 508.040.

It seems unlikely that the legislature intended to create greater disparity between insurance and business corporations in matters of venue. Yet this is what happens under the holding of the majority opinion since insurance companies are specifically exempted and hence liable to be sued as they were before. State ex rel. Stamm v. Mayfield, Mo., 340 S.W.2d 631. The result is that § 508.010(2) is amended by § 351.375(4) with respect to business corporations but not as to insurance companies. Further, the subdivision should be construed in the spirit of Art. Ill, §§ 40 and 41, of the Missouri Constitution, V.A. M.S., which provides that the general assembly shall not pass any local or special law changing the venue in civil or criminal cases. For discussions of the possibilities of this, see State ex rel. Standard Fire Insurance Co. v. Gantt, 274 Mo. 490, 203 S.W. 964, 968 [4], and 969, the concurring opinion.

I am convinced that there is nothing radically wrong with our venue statutes if they are properly construed. In their very nature, venue statutes cannot be uniformly convenient and satisfactory to all litigants. Hardship cases, although infrequent, invoke concern, but the remedy for these would be the right to transfer to a more convenient forum. The federal courts have the power under the doctrine of forum non conveniens to transfer cases to alleviate inconvenience. This could be done in Missouri but would require legislation which, if enacted, might also include authority to transfer to the proper county a case brought in the wrong jurisdiction. See State ex rel. Boll v. Weinstein, 365 Mo. 1179, 295 S.W.2d 62, 66 [9], This would save time, money and sometimes the cause of action.

For the reasons stated, I respectfully dissent.


author: DOERNER, Commissioner.

text:
    The STATE of Missouri, at the relation of Norman H. ANDERSON, Prosecuting Attorney, Relator, v. Honorable Noah WEINSTEIN, Judge of the Circuit Court, Division Three, St. Louis County, Missouri, Respondent.
    No. 31323.
    St. Louis Court of Appeals. Missouri.
    Aug. 6, 1962.
    Norman H. Anderson, Pros. Atty., Jerald M. Alton and Ernest J. Hilgert, Asst. Pros. Attys., Clayton, for relator.
    Paul Taub, Jerry A, Klein, Overland, for respondent.
   DOERNER, Commissioner.

In this original proceeding relator, the Prosecuting Attorney of St. Louis County, seeks to prevent the respondent, Judge of Division No. 3 of the Circuit Court of St. Louis County, from exercising further jurisdiction in a habeas corpus proceeding pending before respondent. The petition for the writ of habeas corpus was filed in the Circuit Court by Willard Lloyd Williams, hereafter referred to as the petitioner, on June 20, 1962. Petitioner alleged therein that he was being unlawfully restrained of his liberty by Frank Malone, Sheriff of St. Louis County, and prayed the issuance by the Circuit Court of its writ of habeas corpus. Upon the petition the writ was issued, returnable forthwith. The Sheriff, appearing by relator, made an oral return that the petitioner was lawfully detained by virtue of a rendition warrant. On the same day a hearing was held before respondent and evidence introduced. At the conclusion of the hearing respondent indicated his intention to release and discharge the petitioner from custody, but deferred the entry of his order to permit the relator to institute this proceeding. Relator’s petition in prohibition was filed here on June 21. Suggestions in support of and in opposition to relator’s petition were submitted, our provisional rule was issued on July 18, and the matter was argued before us and submitted on July 31, 1962.

It appears from the petition for the writ of habeas corpus filed in the Circuit Court, the exhibits there introduced, the petition filed in this court, and the return thereto, that the petitioner was taken into custody and held by the Sheriff by virtue of a rendition warrant issued by the Governor of the State of Missouri for the purpose of delivering petitioner to the authorized agent of the State of California to convey the petitioner to that state. The exhibits include copies of the above rendition warrant, wherein it is recited that the Governor of the State of California had demanded the extradition of petitioner; the application for requisition of the proper California law enforcement officer to the Governor of that state requesting the issuance of the requisition demand by California; an affidavit, sworn to by Vena Haverly before the Judge of the Ceres Judicial District of Stanislaus County, California, wherein petitioner was accused of violating Section 270 of the California Penal Code in that on or about the 14th day of March, 1962, he had wilfully failed to comply with the order of court requiring him to support his minor children, and did thereafter remain out of the state’ for ten days prior thereto without doing so; and the warrant for the arrest of petitioner issued by the Judge of the above California court.

Section 270 of the California Penal Code, in so far as it is here material, provides:

“A father of either a legitimate or illegitimate minor child who wilfully omits without lawful excuse to furnish necessary clothing, food, shelter or medical attendance or other remedial care for his child is guilty of a misdemeanor and punishable by a fine not exceeding one thousand dollars or by imprisonment in a county jail not exceeding one year, or by both such fine and imprisonment. If the father, during such violation, remains out of the State for 30 days, or if he fails or refuses to comply with the order of a court of competent jurisdiction requiring him to make any provision for the maintenance, support, medical treatment or other remedial care of such minor child and remains out of the State for 10 days without doing so, he is guilty of a felony.”

In his petition for the writ of habeas corpus, and in his testimony given in the Circuit Court, petitioner admitted that he and his former wife, since remarried and now named Vena Haverly, had been divorced in Ceres, California, in September 1954; that by the terms of the decree of divorce the custody of his minor children, Mary Louise and James Harvey, now aged 16 and 13, respectively, were awarded to Mrs. Haverly; and that by that decree he had been ordered to pay $25.00 per month for each child. Petitioner maintained that he left California and moved to Missouri the latter part of October 1954, that he has since lived in and is a resident of Missouri, that he was not in California on March 14, 1962, the date referred to in the complaint, and that, in fact, he had never returned to California since he left it in 1954. He further testified that at the time he moved to Missouri and for several months thereafter he paid the support and maintenance decreed by the California court, but admitted that since 1955 he had never contributed to the support of his minor children.

It is apparent from the foregoing exhibits that the extradition of petitioner was not demanded or granted under the Federal law on the subject, 18 U.S.C.A. § 3182. Hagel v. Hendrix, Mo.App., 302 S.W.2d 323. Instead, the warrant was issued pursuant to Section 548.061 of our Uniform Criminal Extradition Act, adopted in 1953, and more specifically as authorized by Section 454.050 of our Uniform Support of Dependents Law, enacted in 1951, which provides:

“The governor of this state may:
♦ * ⅜ * * *
“(2) May surrender on demand by the governor of any other state any person found in this state who is charged in such other state with the crime of failing to provide for the support of an obligee in such other state. The provision for extradition of criminals not inconsistent herewith shall apply to any such demand although the person whose surrender is demanded was not in the demanding state at the time of the commission of the crime and although he has not fled therefrom. Neither the demand, the oath, nor any proceedings for extradition pursuant to this section need state or show that the person whose surrender is demanded has fled from justice, or at the time of the commission of the crime was in the demanding or the other state.”

The constitutionality of similar statutes has been upheld as an exercise by the state of its reserved sovereign powers and as an act of comity to a sister state. 22 Amer. Jur., Extradition, Sec. 9, p. 250. State of Florida et al. v. Bennett, Fla., 90 So.2d 43; Harrison v. State, Ala.App., 38 Ala.App. 60, 77 So.2d 384, cert. den., 262 Ala. 701, 77 So.2d 387; Ex parte Coleman, 157 Tex.Cr.R. 37, 245 S.W.2d 712.

In his petition for the writ of habeas corpus petitioner did not claim that the foregoing Missouri statutes in any way or manner violated his constitutional rights, nor did he challenge the technical sufficiency of any of the requisition or extradition papers. The only grounds upon which he asserted he was being illegally held under the extradition warrant, as set forth in his petition, was because:

* * * petitioner is not and was not at the time of said complaint, March 14, 1962, nor for more than seven years theretofore subject to the jurisdiction of the State of California, has committed no crime therein nor fled therefrom; any attempt by the State of California to subject petitioner, a Missouri resident, to obligations and criminal liabilities under the laws of California at a time when petitioner was not and had not for years theretofore been a resident or in any manner within California, is illegal and void and deprives petitioner of his personal liberty without due process of law in violation of Article XIV of the Amendments to the Constitution of the United States and Section 10, Article I of the Constitution of Missouri, California having no jurisdiction over a Missouri citizen; so that these proceedings under California law are il-' legal and void and no extradition lies, no crime having been committed, and petitioner is being illegally restrained of his liberty as aforesaid. * * * ”

We deem these allegations to be an attack on the constitutionality of Section 270 of the California Penal Code. It is apparent that the respondent likewise so regarded them, for in his return to our preliminary rule he alleged that petitioner:

“ * * * could not legally and within the meaning of due process of law under the Missouri and United States Constitutions have committed any crime under the laws of California, which had no bearing on him but only on citizens or persons subject to the jurisdiction of California, which Willard Lloyd Williams was not and had not been for more than seven (7) years prior to March 14, 1962; that to subject Willard Lloyd Williams or permit the State of California to subject Willard Lloyd Williams, a citizen and resident domiciled within St. Louis County, Missouri, to obligations and criminal liabilities under the laws of California on the facts aforesaid is illegal and void and deprives Willard Lloyd Williams of his personal liberty without due process of law in violation of Article XIV of the Amendments to the Constitution of the United States and Section 10, Article I, of the Constitution of Missouri, for the reasons aforesaid; that to subject Willard Lloyd Williams to detention of his person and delivery to an Agent of the State of California for return to California would also deprive him of his personal liberty without due process of law as aforesaid; * * * ”

Relator does not contend, of course, that the respondent is without jurisdiction to entertain a proper habeas corpus proceeding brought by a petitioner opposing extradition. In the light of Section 548.101 of the Uniform Criminal Extradition Act, which requires that an accused arrested upon a warrant of extradition be given an opportunity to apply for a writ of habeas corpus to test the legality of his arrest, such a contention would obviously be without merit. What the relator does contend, in substance, is that the respondent is exceeding his jurisdiction by entertaining the habeas corpus proceedings pending before him for the reason that the petition for the writ does not state a proper ground for relief, and, as to the ground upon which the writ was sought, cannot be amended to do so. If relator’s contention is correct, prohibition is the proper remedy to restrain the respondent from exceeding his jurisdiction. State ex rel. State Highway Commission of Missouri v. Elliot, Mo., 326 S.W.2d 745; State ex rel. Taylor v. Nangle, 360 Mo. 122, 227 S.W.2d 655.

It will be noted that while Section 548.101 of the Uniform Criminal Extradition Law requires that the person arrested under an extradition warrant be given an opportunity to test the legality of his arrest by an application for a writ of habeas corpus, no standard by which the claimed illegality is to be measured is stated in that law. Habeas corpus has traditionally been the means by which one opposing extradition might obtain a judicial review of the extradition proceedings. 39 C.J.S. Habeas Corpus § 39, p. 548; Williams v. Robertson, 339 Mo. 34, 95 S.W.2d 79; State ex rel. Gaines v. Westhues, 318 Mo. 928, 2 S.W.2d 612. The scope of such a judicial review, however, is exceedingly restricted, and is limited to the sole question of whether the Governor exceeded his authority in honoring the requisition and issuing the warrant of extradition. Ex parte Arrington, Mo., 270 S.W.2d 39; Williams v. Robertson, supra; Rummerfield v. Watson, 335 Mo. 71, 70 S.W.2d 895; State ex rel. Gaines v. Westhues, supra. Thus it is held that in habeas corpus proceedings brought by one opposing extradition the court cannot decide the guilt or innocence of the accused, inquire into the motives underlying the institution of the prosecution in the demanding state, determine whether a parolee has violated his parol, pass on a claim of mistaken identity, or grant relief on similar grounds. 25 Amer.Jur., Habeas Corpus, Sec. 67, p. 192; 39 C.J.S. Habeas Corpus, § 39; Ex parte Arrington, supra; State ex rel. Gaines v. Westhues, supra; State ex rel. Cooney v. Hoffmeister, 336 Mo. 682, 80 S.W.2d 195; Hayes v. O’Connell, Mo.App., 263 S.W.2d 66; Ex parte Ellis, 223 Mo.App. 125, 9 S.W.2d 544.

In the light of petitioner’s petition, the essential question presented for our decision is whether in a habeas corpus proceeding brought in the state of asylum a petitioner opposing extradition may attack the constitutionality of the law of the demanding state under which he is charged. Our research has not revealed a prior decision in this state in which that question was determined, and diligent counsel have not cited one. However, there are numerous cases from other jurisdictions, and the universal rule, as stated in 25 Amer. Jur., Habeas Corpus, Sec. 69, p. 195, is that:

“No question as to the constitutionality of a statute under which a charge is made in the demanding state may be raised in a habeas corpus proceeding brought to obtain a prisoner’s discharge from custody under a warrant for his extradition to such state for trial.”

Pearce v. Texas, 155 U.S. 311, 15 S.Ct. 116, 39 L.Ed. 164; Pierce v. Creecy, 210 U.S. 387, 28 S.Ct. 714, 52 L.Ed. 1113; Drew v. Thaw, 235 U.S. 432, 35 S.Ct. 137, 59 L.Ed. 302; People ex rel. Gilbert v. Babb, 415 Ill. 349, 114 N.E.2d 358, 40 A.L.R.2d 1142; Ullom v. Davis, 169 Miss. 208, 150 So. 519; State ex rel. Munsey v. Clough, 71 N.H. 594, 53 A. 1086, 67 L.R.A. 946; Banning v. Elliott, 196 Iowa 28, 194 N.W. 64; State ex rel. Georgian v. Jensen, 154 Minn. 540, 191 N.W. 908. As the court pointed out in Pierce v. Creecy, supra (310 U.S. l. c. 405, 28 S.Ct. l. c. 720), if the court of the asylum state was required to pass on the constitutionality of the law of the demanding state:

“ * * * it would impose upon courts, in the trial of writs of habeas corpus, the duty of a critical examination of the laws of states with whose jurisprudence and criminal procedure they can have only a general acquaintance. Such a duty would be an intolerable burden, certain to lead to errors in decision, irritable to the just pride of the states and fruitful of miscarriages of justice.”

This rule is in accord with our doctrine of the limited scope of judicial review of extradition proceedings, and is supported by reason and logic. We have found no authorities to the contrary, and none have been cited by counsel for respondent. It follows that in entertaining the petitioner’s present petition attacking the constitutionality of the California Statute the respondent acted in excess of his jurisdiction, and our provisional rule in prohibition should be made absolute. The Commissioner so recommends.

PER CURIAM.

The foregoing opinion by DOERNER, C., is adopted as the opinion of the court.

Accordingly, the provisional rule in prohibition is made absolute.

ANDERSON, P. J., and WOLFE and RUDDY, JJ., concur.