North Missouri Railroad v. Akers

4 Kan. 453

• Court: Supreme Court of Kansas
• Decided: May 15, 1868
• Status: Published

Opinion

By the Court,

Kingman, C. J.

In October, 1862, the defendant in err.or shipped on the road of plaintiff in error, at St. Louis, Mo., a lot of mules, to Macon city, the termination of said road, for further transportation westward. The evidence is-contradictory, whether the plaintiff in error was to deliver the mules at Macon city to the Hannibal & St. Joseph railroad, or'not.

When the mules reached Macon city they were put in the stock pens of the road, and on the afternoon of the day of their arrival, as the proofs differ^ the mules were taken out to water, and, while out, stampeded, and Sixteen of them got away, ten of which were never-recovered. Six were recovered by Akers. In April, 1865, Akers brought suit to recover the value of the mules lost, and for money and labor expended in the recovery for the six that were recaptured and recovered a judgment for $1,200. This judgment the road, seeks to set aside, and alleges various errors in the proceedings of the court below, which we will notice in their order.

It is claimed that the defendant, being a foreign corporation, having its existence by virtue of the laws of another state, and having its office there, and doing its business there, it cannot be sued here otherwise than by attachment proceedings against the property of said corporation. The service in this case was made upon the president of the road, in Leavenworth. The defendant, in answer to the summons so served, made his appearance and answered to the merits. No question was raised as to the jurisdiction over the person, nor was any such point made in the court below, save as a ground for a motion for a new trial. It is not one of the causes mentioned- in the code for which a new trial should be granted, and it is doubtful whether such a. question could ever have been raised in that way. We might well leave this point as settled by this suggestion; but, inasmuch as many authorities were cited, and our convictions clear, we may as well state them here. In doing that, it is not necessary to determine that the service of process on an officer or agent of a foreign corporation, outside the territorial jurisdiction creating it, is binding on such corporation. There seems to be some conflict on this point in the decisions of the various states, arising, perhaps, more from the method of pleading than from any general misapprehension of the law. In the case of McQuin v. Middletown Man. Co. (10 Johns., 5), Spencer, C. j., in delivering the opinion of the court, says: “If the president of a bank of another state were to come within this state, he would not represent the corporation here. His functions and his character would' not accompany hiin when he moved beyond the jurisdiction of the government under whose laws he derived his character.” This was a dictum merely, and not necessarily involved in the case before the court; but it has been approved and cited in various cases since. Even this dictum is not applicable to this case. By the comity universally acknowledged in the states, and acted upon by the Supreme Court in the case of Bank of Augusta v. Earl (13 Peters, 519), corporations may send their officers and agents into other states, transact their business and make ■ contracts there. If corporations avail themselves of this privilege, itis but justice that they be subject to the action of the courts of the state whose comity they thus invoke. They ought, so far as suits are concerned, to be regarded as voluntarily placing themselves in the situation of citizens of that state.

A natural person, who goes into another state, carries along with him all his personal liabilities, and if a corporation chooses to exercise its powers in another state, it ought of necessity to become amenable to its laws ; and so far, it must be admitted that the dictum ■in the case of McQuin v. Middleton ought to be modified, and undoubtedly would be when a proper case was made. It would then appear that there are cases where a foreign corporation may be sued in a. state other than the one which created it, upon general principles of law. Our code specially authorizes it. The thirteenth clause of the act of February 11, 1859, . concerning the construction of statutes, applies as well to the code as to any other part of the statutes. It was passed on the same day as the code, and is part of the legislative will, authoritatively expressed upon the various matters of which it treats. Applying, then, the word person to bodies politic and corporate, and such bodies are as much the subjects of suits as persons, while section 59 expressly mentions foreign corporations as liable to suit, by pointing out in what county they may be sued. Such was evidently the purpose of the code. In another section the manner of attaching their property is pointed out. Now, in this case we need not decide that the president of a foreign corporation, being accidentally in this state, could be served with process that would bind the corporation, because it nowhere appears in the record that such were the facts. And, further, the corporation appeared and answered to the claim, and had a trial on the merits; The court had jurisdiction of the subject niatter. It was a breach of contract, as entirely within their jurisdiction as though it had been a suit on an unpaid note. Either would be a breach of contract, and that only. The court thus having jurisdiction over the subject matter, and the parties appearing and submitting their case to the decision of the court, cannot now complain that the jurisdiction of the person was not rightfully obtained. Says Mr. Justice Story: “If a person who is out of the jurisdiction chooses to appear and defend the suit without objection, there is nothing to prevent the courts of the United States from entertaining the suit, if otherwise unobjectionable; for his appearance without process is a waiver of the objection of the non-service of the process within the district.” (See Clark v. New Jersey Steam Navigation Company, 1 Story’s Reps., and cases therein cited.) This is not only decided law, but good sense. A court having jurisdiction of the subject matter would be open to serious charges if it permitted a party to try a cause upon its merits, without in any way raising a question as to the parties being rightfully before it, and then allow such party, upon a decision adverse to him, to call in question the service of the process rightfully upon him. He is not estopped from setting up such claim. If he is not rightfully in court, he should first raise that question, before he goes to trial on the merits.

It is further alleged that there was error in admitting testimony. In the progress of the trial the plaintiff below was asked this question: . “ What were your services in hunting those mules worth per day?” This was a proper question. It went to support one of the issues on trial, viz: Compensation for plaintiff’s services in and about a business in which he had a direct interest. The rule of damages is undoubtedly what such services were worth. If there was anything in the pursuits of the plaintiff that made his time more valuable than the average of men, and the answer showed that he had based his answer upon such unusual estimate, it would be proper to present such facts upon cross-examination.

Another question objected to is this: “How much did you pay out in recovering the six mules?” We can perceive no error in this question. It led directly to support a proper issue in the case. The rule of compensation is the necessary, reasonable expenditure; but you must, first ascertain what the actual expenditure was, and then show it to have been necessary and reasonable, or otherwise.

A third question objected to is this : “How many hands would be necessary to drive two hundred and fifty mules, supposing they were broke mules, and driven under the circumstances detailed by the witnesses in the case?” The witness had already shown his knowledge of the subject matter of the inquiry. The jury must be informed in some way as to whether the number of men employed by the railroad company to take the mules to water was sufficient to show care and diligence. New men, selected as jurymen, would be qualified, either by observation or experience, to form an opinion as to how many men would be necessary to drive two hundred and fifty broke mules. To determine whether there was a want of due care in the driving of the mules to water, was one of the points on which the jury were to pass, and without testimony, unless the question could be asked. • I find the books full of cases on this subject, as .to the admission of opinions, and am totally unable to reconcile them. “It is every day’s experience that witnesses in .'the trial of causes on the circuit are called upon to state their judgment or opinion upon questions of value, of quantity, of size, of time, or the like, when there has been no test applied by measurement or otherwise. And this species of evidence has been found absolutely necessary to even a tolerable administration of justice; indeed, to refuse it would, in very many cases, operate as a complete denial' of justice. (37 Barb., 288.) But this exception to the rule that the witness testifies as to the facts and not as to his opinions, is generally limited to the case of experts in matters of art and skill, and is not enlarged so as to admit opinions in ordinary cases, when the jury may "be supposed competent to form their judgment from the statement of the facts.” (Sedg. on Meas. of Damages, 634;

So a mason may be asked how long it would take to dry the walls of a house, so as to render it fit for a habitation. (4 Barb., 615.) So also may experienced gardeners give opinions as to the amount of damages done to plants, trees and shrubs by the smoke, heat and gas proceeding from the defendant’s brick kiln. (13 Metc., 288.) Now we think this is one of the exceptions made in the rule as laid down by Mr. Sedgwick, when the jury may not be supposed competent to form their judgment from the statement of facts. They would not be likely to know whether two men were enough to drive the mules or not. Not one juryman in a hundred would have any knowledge on this subject. And it would seem better to admit the testimony of a witness skilled in that business than impose the task of forming opinions upon the jury without the previous necessary knowledge. In this case we think the testimony was properly admitted.

As further error, it is alleged that the instructions refused were law, and should have been given, and those given were not law. Some of the instructions refused are statements of law not applicable to the case, because they took from the jury the power of determining whether the railroad company were acting as common carriers, or were acting merely in the. capacity of warehousemen, when the loss occurred. This was a fact necessary to "be determined "before the suitable measure of care and diligence — proper in either state of the case — could be applied, greater responsibilities attaching in the former than in the latter case. This distinction is fairly made in the instructions given by the court. Now, if the contract was to transport the mules to Macon city and deliver them to the Hannibal & St. Joseph railroad there, the liability as carriers did not end unless the mules were delivered.of offered to be delivered to the latter road. The plaintiff in error could not change its liabilities, nor diminish the measure of its responsibilities, by any neglect of its own duty. It was the province of the jury to determine what the contract was, and whether the plaintiff in error had failed to keep it. On these points the testimony was conflicting, and all the instructions asked by the plaintiff in error, and not embraced in the instructions of the court, proceed upon the hypothesis that the contract of the North Missouri railroad was only to transport the mules to Macon city; while the testimony was such as would authorize the jury to find that such was the contract, or that it went further, and was also to ship them on the Hannibal & St. Joseph railroad; and for not giving the right of determining what was the real contract, to the jury, the most of the instructions were not applicable to the facts, and were rightfully refused.

It is not insisted here that the instructions given were not the law of the case. One of the instructions asked by the plaintiff in error is not embraced in the remarks above made, and will receive a separate consideration. It is as follows : “ That the defendant having set up the statute of limitations as a bar to the plaintiff’s right to recover, and the plaintiff having failed to plead or prove an avoidance, the jury must find for the defendant.” The reply to the plea of the statute of limitations was that the defendant was a foreign corporation, created and existing under the laws of Missouri, and having no corporate existence under the laws of Kansas. And there was testimony absolutely proving these allegations. So that the assumption of fact in the instruction is hardly sustained by the record. ■ But we have already attempted to show that a corporation is a person under the code and within the meaning of sec. 28 — an artificial being, a corporate body, confined to the State of Missouri, where it remained until this suit was brought, for aught that appears from the record, and is subject to the exceptions enumerated in sec. 28 of the code. To hold otherwise would be to say that the legislature intended to discriminate in favor of a foreign corporation, without any just grounds for such a conclusion. We think the principle of this instruction was settled by the court in. the case of Bonifant v. Doniphan (3 Kas., 35), and against the plaintiff in error.

We therefore find no error in the record, and affirm the decision of the court below.

All the justices concurring,