Markey v. Louisiana & Missouri River Railroad Company
| Decision Date | 22 December 1904 |
| Citation | 84 S.W. 61,185 Mo. 348 |
| Parties | MARKEY v. LOUISIANA & MISSOURI RIVER RAILROAD COMPANY, Appellant |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.
Affirmed on condition.
Scarritt Griffith & Jones for appellant.
(1) The circuit court of Audrain county had no jurisdiction of this cause for the reason that the suit was not commenced in the county where the cause of action accrued, or in a county where the defendant had or usually kept an office or agent for its usual and customary business. Secs. 562 and 997, R S. 1899; Byler v. Jones, 79 Mo. 261; Bank v Knox, 47 Mo. 333; Vastine v. Bast, 41 Mo. 493; Graham v. Ringo, 67 Mo. 324. The defendant by timely and reiterated action called in question the jurisdiction of the court by (1) a plea to the jurisdiction; (2) motion to dismiss; (3) demurrer; and (4) answer; and in each instance upon the overruling of its contention by the trial court, saved its exception, and again called in question the action of the trial court in its rulings in respect to jurisdiction in its motions for a new trial and in arrest of judgment. (2) Answering over and appearance at trial do not waive exception to jurisdiction. Little v. Harrington, 71 Mo. 390; Byler v. Jones, 79 Mo. 261; Fare v. Gunter, 82 Mo. 522; Brackett v. Brackett, 61 Mo. 222; Christian v. Williams, 111 Mo. 430, 35 Mo.App. 307. (3) The acknowledgment of service of notice to take depositions and the appearance of defendant's counsel, at the taking of those depositions and the cross-examination of witnesses, is not an entry of appearance of the defendant in court, nor does the act subject the defendant to the jurisdiction of the court. A notary public as such is not an officer of the court. Neither of the depositions in this case was taken pursuant to an order or commission issued by the court, or by the clerk of the court. They were depositions taken by the plaintiff on his own initiative upon a mere notice of defendant's counsel before the issues were made up; in fact, before the return day of the writ of summons and before any pleading in the case had been filed by the defendant. Bentz v. Eubanks, 32 Kan. 321; Shirley v. Hagaar, 3 Blackf. (Ind.) 225; Higgins v. Beckwith, 102 Mo. 456; Grain Co. v. Mackler, 88 Mo.App. 186. (4) In the light of these authorities how can it with sincerity be contended that the alleged stipulation shown in this record, which was not signed by defendant's counsel but prepared on a mere postal card, requesting to have the docket arranged to suit counsel's convenience, which merely recited that the case might be set down for trial "for the 12th day of June or any day thereafter that week," when it was made before the return term began, and was for no other purpose than to indicate to the clerk the convenience of the parties, has the effect of subjecting the person of the defendant to the jurisdiction of the court when the first pleading on the part of the defendant was a plea to the jurisdiction and every subsequent pleading reiterated the same contention? It is so universally common in the Missouri practice in the circuits outside of the larger cities for hearings upon pleadings and motions to be taken up and disposed of when the case is called for trial as to preclude the idea that, by the use of the word "trial" in this alleged stipulation, the defendant intended to join the issue on the merits, and have a trial upon the merits alone, and not upon a plea to the jurisdiction, or motion to dismiss, or answer raising an issue as to the jurisdiction of the court. (5) The defendant is not liable under the allegations of the petition. The petition charges and plaintiff's alleged cause of action is based upon the proposition that at the time of the injury the plaintiff was under a contract of employment with the Chicago & Alton Railway Company, which company was, by virtue of that relationship, obligated "to furnish plaintiff with a reasonably safe place in which to work, and reasonably safe appliances with which to work." Neither the defendant, nor any officer, servant or agent of the defendant, is charged with negligence, but through this petition it is sought to impute the alleged negligence of the agents of the Chicago & Alton Railway Company to the defendant for that the defendant did "license and permit said Chicago & Alton Railway Company under a running arrangement to run engines and cars upon its said road and right-of-way" on the day the plaintiff's injury occurred. Plaintiff's alleged cause of action is grounded upon a breach of duty by the Chicago & Alton Railroad Company which duty arose out of and was imposed upon the Chicago & Alton Railroad Company by virtue of a contractual relation between plaintiff and that company; and plaintiff's alleged cause of action is not grounded, nor does the petition charge it to be grounded, upon any violation of a franchise granted by the State of Missouri to the defendant, or of any public or private duty imposed upon defendant by reason of its ownership, or of its exercise of that franchise. There is no proof in this record tending to show that the defendant had any physical possession or right of control of the roadbed, rolling stock or operators of the railroad at the time and place where the plaintiff's injuries occurred. There is no proof that defendant owned or ever owned the engine whose alleged defective condition caused the injury, or that any officer, servant or agent of the defendant operated that engine, or was under any obligation to inspect or care for it. Indeed, the allegation of the petition is that the Chicago & Alton Railway Company operated its engines over the railroad, and that plaintiff was in the employ of the Chicago & Alton Railway Company when hurt. The leases from the defendant to the Chicago & Alton Railroad Company, and from that company to the Chicago & Alton Railway Company, by express terms, divest the defendant of possession, management and control of the right-of-way, property and franchises and invests the Chicago & Alton Railway Company therewith. These are lawful leases for they are made with and have the express sanction of the laws of this State. R. S. 1899, sec. 1060. That law grants to any railroad company of this State the right to "lease" all or any part of its railroad, rights, franchises, real estate and other property in this State to a foreign or domestic railroad corporation "upon such terms as may be agreed upon between said companies respectively." Railroad v. Culbertson, 72 Tex. 375; Railroad v. Paul, 143 Ind. 23; Hukill v. Railroad, 72 F. 745; Arrowsmith v. Railroad, 57 F. 165; Nugent v. Railroad, 80 Me. 62; Mahoney v. Railroad, 63 Me. 68; 1 Redfield on Railroads, p. 68; Wood, Railway Law, sec. 490; Herron v. Railroad, 68 Minn. 542; Pierce on Railroads, 283; Miller v. Railroad, 125 N.Y. 118; Lee v. Railroad, 116 Cal. 97; Murch v. Railroad, 29 N.H. 36; Pierce v. Railroad, 51 N.H. 593; Railroad v. Curl, 38 Kan. 622; Caruthers v. Railroad, 59 Kan. 629; Hayes v. Railroad, 74 F. 279. (6) Section 1060, Revised Statutes 1899, did not create new liabilities. It does not impose upon the lessor railroad company any obligation to respond for damages to an employee of the lessee company caused solely by the negligence of the servants of the lessee company in the operation of the road. Its language confers express authority upon domestic railroad companies, and upon railroad companies organized under the laws of other States, to make leases from one to the other indiscriminately of all railroads within this State. And if a foreign railroad company takes over a railroad in this State, so much of the railroad as is within this State shall be subject to taxation, and the foreign railroad corporation "shall be subject to all regulations and provisions of law governing railroads in this State; and a corporation in this State leasing its road to a corporation of another State . . . shall remain liable," -- liable for what? It is not yet clear what the scope of the liability is -- "as if it operated the road itself;" -- but what is the scope of the liability? Shall it remain liable for the promissory notes made by the lessee company after it had accepted the lease and assumed possession and control of the railroad thereunder? Liable for the debts due to employees of the lessee company for services performed for it solely at its request, or for debts due for materials furnished to the lessee company to repair its cars and rolling stock, or for cars and engines furnished to it? No; the language does not include so large a scope of liability. If not, it cannot rationally be concluded that these words make the lessor company liable for damages caused by the lessee company to one of its employees through the negligence of other of its employees when the lease was made under the sanction of the laws of Missouri. Smith v. Railroad, 61 Mo. 17; Main v. Railroad, 18 Mo.App. 388; Brown v. Railroad, 27 Mo.App. 394; McCoy v. Railroad, 36 Mo.App. 445; Stearns v. Railroad, 46 Me. 95; Price v. Barnard, 65 Mo.App. 649; Blackmore v. Railroad, 162 Mo. 455.
Frank P. Walsh, John M. Cleary, George Robertson and E. R. Morrison for respondent.
(1) Defendant waived all objections to the jurisdiction of the court over its person by appearing and stipulating to try the case on June 12th, and by accepting service of notice to take depositions and appearing and cross-examining witnesses on the merits of the case, without objecting to the jurisdiction of the court. Baisley v. Baisley, 113 Mo. 550; Bohn v. Devlin, 28 Mo. 319; Orear v Clough, 52 Mo. 55; Peters v. Railroad, 59 Mo. 406; Tower v. Moore, 52 Mo. 118; Seay v. Sanders, 88 Mo.App. 478; Bankers' Life v. Shelton, 84 Mo.App. 639; Griffin v. Van Meter, 53...
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