Matson v. Kennecott Mines Co.

• Citation: 171 P. 1040,101 Wash. 12
• Decision Date: 03 April 1918
• Docket Number: 14463.
• Parties: MATSON v. KENNECOTT MINES CO. et al.
• Court: Washington Supreme Court

171 P. 1040

101 Wash. 12

MATSON v. KENNECOTT MINES CO. et al.

No. 14463.

Supreme Court of Washington

April 3, 1918

Department 1. Appeal from Superior Court, King County; John J. Jurey Judge.

Action by Matt Matson against the Kennecott Mines Company and Stephen Birch. From an order dismissing the action as to the Company, and from an order dismissing the action as to Stephen Birch, plaintiff appeals. Affirmed in part, and reversed in part.

Geo. H. Rummens, Wilmon Tucker, Heber McHugh, and John T. Casey, all of Seattle, for appellant.

Roberts Wilson & Skeel and Bogle, Graves, Merritt & Bogle, all of Seattle, for respondents.

PARKER J.

This action was originally commenced in the superior court for King county against the defendant Kennecott Mines Company, a Nevada corporation, by the plaintiff, Matson, seeking recovery of damages for personal injuries which he claims to have suffered as the result of the negligence of that company while working at its mines in Alaska in January, 1915. Thereafter Matson filed his third amended complaint attempting to make Birch a party defendant to the action which complaint was served upon Birch together with a summons. The case is in this court upon an appeal by Matson from orders of the superior court dismissing the case as to both defendants and denying him a trial upon the merits.

The dismissal of the case as to the company was by the trial court rested upon the ground that it had been disincorporated before the commencement of the action. While counsel seek to sustain the order of dismissal upon that ground, they also seek to sustain the order upon the ground that the superior court never in any event acquired jurisdiction over the person of the company either by an effective service of summons upon it in this state or by its general appearance in the action. The dismissal as to the defendant Birch was by the trial court rested upon the ground that no cause of action was stated against him in the third amended complaint which could be a proper subject of litigation in this case.

On June 1, 1915, Matson signed and verified his original complaint in this action. Thereafter that complaint, together with the summons in usual form, was served upon four different persons in this state, at different times, as resident agents of the company who were claimed by Matson to be agents of the company upon whom service might be effectually made for it at the time each service was so made. Thereafter counsel for the company appeared specially and made motions to quash the service of the summons upon each of these persons as service upon the company, which motions were rested upon the ground that neither of the persons so attempted to be served was an officer, agent, or representative of the company in this state. We do not find in either of these motions or elsewhere in this record any claim that the Kennecott Mines Company was not doing business in this state of such nature and extent that it was subject to be sued therein upon a cause of action such as Matson set forth in his several complaints, apart from the claim that it had been disincorporated. These motions to quash were brought on for hearing before the court when, after hearing evidence and argument of counsel, they were by the court denied. Thereafter the company by its counsel answered Matson's complaint upon the merits, denying that its negligence resulted in or contributed to the injury of Matson as alleged by him, and affirmatively pleading contributory negligence and assumption of risk on his part, and also that his injuries, if any, resulting from the fault of persons other than himself, were the result of the fault of his fellow servants. In the making and filing of this answer the company attempted to preserve its special appearance as made in its motions to quash the service of summons. The portions of the answer, aside from its denials and pleadings of affirmative defenses as above noticed bearing upon the question of whether the company preserved its special appearance in the action, are the following:

'Comes now the defendant Kennecott Mines Company, the court having overruled and denied its motion to quash service in this action, and not waiving its motion to quash the service, and still reserving its special appearance, and its right to contest the question of the jurisdiction of this honorable court, submits this its answer to the complaint of the plaintiff.'

'Wherefore the defendant Kennecott Mines Company, having fully answered the complaint of plaintiff, prays for judgment for dismissal and for costs.'

Thereafter Matson filed his amended complaint and his second amended complaint, both of which were answered in order by the company in substance the same as it had answered its original complaint.

On June 14, 1916, the cause came regularly on for trial in the superior court sitting with a jury; counsel for the company still insisting that the appearance of the company was special and not general. Counsel for the company then presented to the court and offered in evidence a duly certified copy of the articles of incorporation of the company showing that it was a corporation organized under the laws of Nevada in November, 1906. Indorsed upon the certified copy of the articles so presented and offered in evidence was a statement over the signature of the secretary of state of Nevada, as follows: 'Dissolved June 10, 1915.' Counsel for the company also presented to the court and offered in evidence a duly certified copy of section 89 of the general corporation law of Nevada (Laws 1903, c. 88), relating to the voluntary dissolution of corporations of that state. That section, after providing for the procedure and the manner of giving consent to a dissolution by those interested, provides:

That certain written evidence thereof 'shall be filed in the office of the secretary of state, who, upon being satisfied by due proof that the requirements aforesaid have been complied with, shall issue a certificate that such consent has been filed, and the corporation shall thereby be dissolved, and the secretary of state shall make an indorsement to that effect on the original certificate of incorporation and on the amendments thereto in his office.'

Counsel for the company also presented to the court and offered in evidence a certificate of the secretary of state of Nevada made as provided by the above-quoted portion of section 89, further evidencing the disincorporation of the company. This was the first claim made that the company had been disincorporated. These papers showed in apparent disincorporation of the company before the commencement of the action. Thereupon counsel for Matson, claiming surprise at this proof of apparent disincorporation, having no notice that there would be a claim of its disincorporation, asked for a continuance of the cause to the end that they might be able to show that the company was in fact not disincorporated, and, if necessary, plead additional facts to that end. The trial court thereupon granted this request, dismissed the jury, and continued the case. The case was never thereafter brought to trial upon the merits. Thereafter counsel for Matson filed his third amended complaint, setting up his cause of action against the company the same in substance as in his second amended complaint, upon which the case was proceeding to trial when continued. In this third amended complaint it was sought to make Stephen Birch a defendant in the action upon the theory that he was the moving spirit in bringing about the disincorporation of the company and the organization of a new corporation which succeeded to the rights and properties of the company, and that this was accomplished by the fraudulent acts of Birch. That portion of the third amended complaint is a somewhat involved story, but we think this is a sufficient noticing of its nature. This third amended complaint, together with a summons in usual form, was served in King county upon Birch, who was then temporarily there, but whose residence was not in this state. Thereafter several motions were made by the respective parties, which presented the question of Matson being entitled to default as against both the company and Birch for want of answer to his third amended complaint; the question of the sufficiency of the allegation of Matson's third amended complaint to constitute a cause of action against Birch, properly triable in this case, the question of the dismissal of the third amended complaint and of the action as to Birch, and the question of the striking of the third amended complaint and the dismissal of the action as to the company. These motions were apparently all heard together, upon which hearing the court had before it the certified copies of the articles of incorporation of the company, the indorsement thereon, and the certificate of the secretary of state of Nevada apparently showing that the company had been disincorporated, which papers had been offered in evidence upon the trial terminated by the continuance. The court also had before it a printed pamphlet offered in evidence by counsel for Matson, purporting to be an official publication of the general corporation law of Nevada issued by the secretary of state of Nevada, which pamphlet was considered in evidence by the court without objection on the part of counsel for the company, and which pamphlet contained section 89, above noticed and quoted from, and also the following provisions in section 90 of the general corporation law of Nevada:

'All corporations, whether they expire by limitations, or are otherwise dissolved, shall nevertheless be continued as bodies corporate, for the term of one year from such expiration or dissolution, and until all litigation to which

...