Marshall v. The City of Kansas City

• Decision Date: 08 May 1915
• Docket Number: 19,503
• Citation: 95 Kan. 548,148 P. 637
• Parties: VINA MARSHALL, Appellant, v. THE CITY OF KANSAS CITY, MO., Appellee
• Court: Kansas Supreme Court

148 P. 637

95 Kan. 548

VINA MARSHALL, Appellant, v. THE CITY OF KANSAS CITY, MO., Appellee

No. 19,503

Supreme Court of Kansas

May 8, 1915

Decided. January, 1915.

Appeal from Wyandotte district court, division No. 2; FRANK D HUTCHINGS, judge.

Judgment affirmed.

SYLLABUS

SYLLABUS BY THE COURT.

VENUE--Foreign Municipality--Not Subject to be Sued in Kansas Courts. A city of another state which is operating a water plant in this state is not subject to be sued in the courts of this state for a personal injury sustained in that city and which is caused by its negligence.

A. J. Herrod, of Kansas City, for the appellant.

A. F. Evans, and Francis M. Hayward, both of Kansas City, Mo., for the appellee.

Johnston C. J. Dawson, J. concurring specially. Mr. Justice Burch joins in this dissent.

OPINION

JOHNSTON, C. J.:

May Kansas City, Mo., which is conducting a water plant in Kansas, be sued in this state, and may summons be served on an agent of that city who is in charge of the plant and managing the business conducted here?

Vina Marshall, who had sustained a personal injury resulting from the negligence of the city in the care of its streets, brought this action in Wyandotte county, Kansas, where the Quindaro pumping station of Kansas City, Mo., is located. It is owned and operated by that city in Kansas in connection with a municipal water system in Missouri. A summons was served on Patrick Walsh, the chief engineer, who was in charge of the plant. His duties are confined to the operation of the plant and to the control and direction of the subordinates employed there. Upon a motion of the defendant city the case was dismissed on the ground that the cause of action arose in the state of Missouri, that the defendant is a municipal corporation of that state, and that it had not consented to be sued in Kansas. From that ruling the plaintiff appeals.

On one side it is contended that the city having come into Kansas and engaged in conducting a private business it is here in its private and proprietary capacity and is subject to be sued as any nonresident of the state or a foreign corporation. The civil code (§ 53), provides:

"An action, other than one of those mentioned in the first three sections of this article, against a non-resident of this state or a foreign corporation, may be brought in any county in which there may be property of, or debts owing to, said defendant, or where said defendant may be found; but if said defendant be a foreign insurance company, the action may be brought in any county where the cause, or some part thereof, arose."

It is argued by the plaintiff that the action brought is in its nature transitory; that Kansas City, Mo., divested itself of its sovereign character by coming into Kansas and engaging in private business, and is therefore in the attitude of a private person or corporation and may be sued under the section quoted the same as any nonresident person or corporation which may be found within the jurisdiction of the state. To support her contention plaintiff relies on The State v. Holcomb, 85 Kan. 178, 116 P. 251, and the cases therein cited, and also Hunt & Wife v. Town of Pownal, 9 Vt. 411.

While the statute does not in express terms provide for suing cities of another state which may be found engaged in private business in Kansas it is the view of the court that an action against a municipality is inherently local and can only be brought in the jurisdiction in which the city is located. At common law no action could be brought against a municipal corporation outside of the county where it was situate unless an express statute authorized it to be sued elsewhere. (Pack, Woods & Co. v. Greenbush Township, 62 Mich. 122, 28 N.W. 746; Jones v. Statesville, 97 N.C. 86, 2 S.E. 346; North Yakima v. Superior Court, 4 Wash. 655, 30 P. 1053; Lehigh County v. Kleckner, 5 Watts & S. [Pa.] 181; Parks Co. v. City of Decatur, 138 F. 550, 70 C.C.A. 674; Phillips v. Baltimore City, 110 Md. 431, 72 A. 902, 25 L. R. A., n. s., 711, and Note.) This rule is based mainly on the theory that administrative officers of a municipality are necessarily engaged at home in the performance of their public duties and that it is contrary to public welfare and the scheme of municipal government to require them to go away from home and from their daily duties to resist litigation that may be instituted against the municipality in other places. The court is of opinion that in enacting the provisions of the code as to venue and service of process upon persons and corporations, resident and nonresident, the legislature did not have the cities of other states in mind but framed the provisions upon the theory of the common law that cities are but subdivisions of a state exercising sovereign powers and are not amenable to courts outside of the state in which such cities are situate. While the cause of action is transitory in nature the forum is necessarily local, and in the absence of express legislative provision it must be assumed that the legislature did not contemplate that a foreign municipal corporation could be sued in Kansas.

The judgment is affirmed.

CONCUR BY: DAWSON

CONCUR

DAWSON J. (concurring specially): A municipal corporation of the state of Missouri which for its convenience or on account of its necessities procures and develops its municipal water supply in Kansas, and consequently owns property pertaining thereto in this state, is not on that account to be subjected to all the incidents which attach to a foreign corporation doing business in Kansas. Before a foreign corporation can lawfully do business in this state as such corporation it must have authority, either express or implied, from the sovereign creating it to come into this state. Then it must file with the secretary of state an application for leave to do business in Kansas, and attach thereto a copy of its charter, file a power of attorney authorizing the secretary of state to accept service of process against it, which power of attorney must be expressly authorized by its board of directors or other managing officers, and it must pay certain initial and annual fees and make annual reports of its financial affairs to our secretary of state. Our state charter board grants such foreign corporation a...