Adams Exp. Co. v. Schofield

• Decision Date: 23 October 1901
• Citation: 111 Ky. 832,64 S.W. 903
• Parties: ADAMS EXP. CO. v. SCHOFIELD. [1]
• Court: Kentucky Court of Appeals

64 S.W. 903

111 Ky. 832

ADAMS EXP. CO. v. SCHOFIELD. ^[1]

Court of Appeals of Kentucky.

October 23, 1901

Appeal from circuit court, Franklin county.

"To be officially reported."

Action by Blanche Schofield, by next friend, against the Adams Express Company, to recover damages for personal injuries. Judgment for plaintiff, and defendant appeals. Affirmed.

Lawrence Maxwell, Jr., and Frank Chinn, for appellant.

William Cromwell, Jas. Andrew Scott, and C. C. Marshall, for appellee.

HOBSON J.

The appellee, Blanche Schofield, was sitting in a phaeton near the railroad station in Shelbyville on July 26, 1898. The wagon of the Adams Express Company ran into the phaeton, breaking it down and causing her serious injury, to recover for which she filed this action in the Franklin circuit court. The defendant, the Adams Express Company, filed a special demurrer to the petition, and then withdrew its demurrer and entered a motion to quash the return on the process. In support of this motion it filed an affidavit of its superintendent that the Adams Express Company is a co-partnership composed of more than 3,000 partners, all of whom were nonresidents of the state. No action seems to have been taken by the court on this motion, but the same matter was set up in the second paragraph of the answer, to which the court sustained a demurrer, and the propriety of this ruling is the first question to be determined. A company composed of 3,000 members is in one sense a co-partnership but it is not a co-partnership in the ordinary sense of that term. "A joint stock company is an association of individuals for purposes of profit, possessing a common capital, which is divided into shares, of which each member possesses one or more, and which are transferable by the owner. These associations formed for business purposes were at common law, and as a general rule still are, considered merely as partnerships, and their rights and liabilities are in the main governed by the same rules and principles which regulate commercial partnerships." 17 Am. & Eng. Enc Law (2d Ed.) p. 636. "A joint stock company organized in a foreign jurisdiction, and having substantially the power and character of a corporation, may be served with process in the same manner as foreign corporations are served." 17 Am. & Eng. Enc. Law (2d Ed.) p. 644. The precise question raised in this case was made in the case of State v Express Co., 66 Minn. 271, 68 N.W. 1085, 38 L. R. A. 225; and it was there held that, although this association had some of the features of a common-law partnership, it was a quasi corporation, and that process might be served upon it as upon foreign corporations. The same conclusion was reached in Express Co. v. State, 55 Ohio St. 69, 44 N.E. 506. These rulings are in accord with the constitution and laws of this state. By section 208 of the constitution it is provided: "The word corporation as used in this constitution shall embrace joint stock companies and associations." Pursuant to this constitutional provision is section 457. Ky. St., regulating construction of statutes: "The words, 'corporation,' 'company,' may be construed as including any corporation, company, person, persons, partnership, joint stock company or association." As to what meaning the word "corporation" is to receive in any provision of statute, of course, the context must in some measure determine. It will not embrace partnerships, when not so intended by the legislature; but an association of 3,000 members must, under these provisions, be treated as a quasi corporation, and may be proceeded against as such. It is immaterial by what name it may designate its organization. It is in fact an association which for the purpose of process must be treated as a corporations. We therefore conclude that the court properly sustained the demurrer to this part of the answer.

In another paragraph of the answer appellant set up the fact that some months before this suit was filed appellee had filed another suit against it, in which she sought to recover from it $5,000 damages upon the same cause of action; that it had removed the case to the circuit court of the United States, and at the next term of that court appellee had dismissed that suit with prejudice, and some days after this had brought the suit now before us upon the same facts, but placing the damages at only $2,000. By reason of these facts it insisted that the Franklin circuit court had no jurisdiction to hear or to try the case. The trial court sustained a demurrer also to this paragraph of the answer. The learned counsel for appellant insists that this was error, and in support of this position relies on the case of Cox v. Railroad, 68 Ga. 446, and also the case of Railroad Co. v. Fulton, 59 Ohio St. 575, 53 N.E....