Doherty v. Kansas City Star Co.
| Decision Date | 09 May 1936 |
| Docket Number | 32716. |
| Parties | DOHERTY v. KANSAS CITY STAR CO. ET AL. [a1] |
| Court | Kansas Supreme Court |
Syllabus by the Court.
1. A foreign corporation engaged in interstate commerce, on which process may be served in this state, is authorized by R.S 60--309 to plead the statute of limitations in an action against it, commenced in this state, based on causes of action accruing in this state.
2. The petition considered in an action for damages for libel, and held, certain counts stated causes of action and others did not.
Appeal from District Court, Shawnee County, Division No. 1; George A. Kline, Judge.
Action by Henry L. Doherty against the Kansas City Star Company and another. From a judgment sustaining demurrers to certain causes of action contained in petition, and overruling demurrers to other causes of action, all parties appeal.
Affirmed in part, and reversed in part.
Robert Stone, James A. McClure, Robert L. Webb, Beryl R. Johnson and Ralph W. Oman, all of Topeka, and Fred Robertson, E. M Boddington, and J. O. Emerson, all of Kansas City, Kan., for appellant Doherty.
T. M Lillard, of Topeka, W. P. Lilleston, of Wichita, and I. N. Watson, Henry N. Ess, and Paul Barnett, all of Kansas City, Mo., for appellees Kansas City Star Co., and others.
The action was one by Henry L. Doherty against the Kansas City Star Company and its manager, Roy A. Roberts, for damages for libel. Demurrers were sustained to certain causes of action contained in the petition, demurrers to other causes of action were overruled, and all parties appeal.
Plaintiff is president and chief managing officer of Cities Service Company, a corporation whose principal office is at No. 60 Wall street, New York City. He is also a utility operator and engineer, and under the name, Henry L. Doherty & Co., maintains a staff for the rendition of managerial, engineering, financial, and other services to public utilities, including the Kansas City Gas Company of Kansas City, Mo., the Wyandotte County Gas Company, of Kansas City, Kan., the Capital Gas & Electric Company, of Topeka, Kan., and other corporations supplying natural gas to cities and their inhabitants.
The Kansas City Star Company is a corporation of the state of Missouri, engaged in the business of publishing two newspapers, the Kansas City Times, a morning paper, and the Kansas City Star, an evening paper, each having wide circulation in the states of Missouri, Kansas, and elsewhere. The papers are published at the principal office and place of business of the company in Kansas City, Mo. In conduct of its business, the company maintains offices, and employs agents and servants in the state of Kansas. Being engaged in interstate commerce, the company has neither applied for nor received a grant of authority from the charter board of the state of Kansas to do business in this state.
The defendant, Roy A. Roberts, a resident of Kansas, is one of the chief managing officers of the Kansas City Star Company.
The Kansas City Star Company was served by delivery of summons to a news correspondent in the city of Topeka, Kan.
The petition contained six causes of action which, for brevity, will be referred to as counts. The Star Company demurred to counts 1, 2, 3, and 4. The demurrer to count 1 was based on the statute of limitations and other grounds. The demurrer to count 2 was based on the statute of limitations alone. The demurrer to count 3 was based on the statute of limitations and other grounds. The demurrer to count 4 was based on grounds other than the statute of limitations.
Roberts demurred to counts 1, 3, and 4, on the ground those counts did not state facts sufficient to constitute causes of action.
Because of absence from the state, he was not in position to urge the statute of limitations. The court sustained the demurrers to counts 1 and 3, and overruled the demurrer to count 4.
As indicated, the Star Company demurred to counts 1, 2, and 3, on the ground action was barred by the statute of limitations. Action was barred by the statute of limitations if the Star Company, a foreign corporation engaged in interstate commerce, doing business in this state and subject to the service of process here, was privileged to plead the statute.
Previous to 1905, the statute read as follows:
"If when a cause of action accrues against a person he be out of the state, or has absconded or concealed himself, the period limited for the commencement of the action shall not begin to run until he comes into the state, or while he is so absconded or concealed; and if after the cause of action accrues he depart from the state, or abscond or conceal himself, the time of his absence or concealment shall not be computed as any part of the period within which the action must be brought." (Gen.St.1901, § 4449).
In December, 1903, this court rendered its decision in the case of Williams v. Metropolitan Street Railway Co., 68 Kan. 17, 74 P. 600, 64 L.R.A. 794, 104 Am.St.Rep. 377, 1 Ann.Cas. 6, the syllabus of which reads:
"A foreign corporation is 'out of the state,' within the meaning of section 21 of the Code [Gen.Stat.1901, § 4449], and for that reason cannot avail itself of the statute of limitations of this state."
The decision was based solely on implications from the metaphysical conception of a corporation, which were pressed so far they were incongruous with the realities of this world of practical affairs. The result was, that at the next ensuing session of the Legislature, which assembled in 1905, the statute was amended by the addition of a proviso which reads:
"Provided, This act shall not apply to any foreign corporation authorized to do business in the state upon which service of process can be had within the state." (Laws 1905, c. 328).
The original statute plus the amendment appears as R.S. 60--309.
A person has a physical existence and may go from place to place to accomplish his purposes and satisfy his desires. When the statute came into existence in covered wagon days, it was conceived the running of the statute ought to be suspended while one against whom a cause of action arose or existed was out of the state, and although the statute was one of repose, it was so framed that it applied even although a form of personal service, by leaving copy of summons at usual place of residence, might be made.
A corporation was merely a mental concept. Because, however, a corporation could do most of the things a person could do, it was necessary to attribute to a corporation the fact of existence. Having existence, a place in space in which to exist was logically necessary. Therefore the abstraction was assigned a hypothetical domicile. That was as far as reasoning of the type employed could go toward the concrete, and capacity of a corporation to be anywhere except in the state of domicile was denied.
The railway company involved in the Williams Case was a Missouri corporation. It built a line of street railway from Missouri into Kansas, and proceeded to engage in the carriage of passengers in interstate commerce. The railway was a unit. Operation of the...
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