Newcomb v. New York Central And Hudson River R. Company

CourtUnited States State Supreme Court of Missouri
Citation81 S.W. 1069,182 Mo. 687
PartiesNEWCOMB v. NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant
Decision Date20 June 1904

Appeal from Lincoln Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed on condition.

Everett W. Pattison and Norton, Avery & Young for appellant.

(1) The service upon the two corporations, towit: The Wabash Railroad Company and the Cleveland, Cincinnati, Chicago and St. Louis Railway Company, was a nullity. R. S. 1899, sec. 570; Cloud v. Pierce City, 86 Mo. 363; Sykes v Railroad, 77 S.W. 723; St. Clair v. Cox, 106 U.S. 350, 27 L.Ed. 225; Railroad v. Pinkney, 149 U.S. 194, 37 L.Ed. 699; New Mineral River Co. v Seeley, 120 F. 200; Ins. Co. v. Spratley, 172 U.S. 610, 43 L.Ed. 569; Strain v. Chicago Portrait Co., 126 F. 834; Railroad v. Walker, 9 Lea (Tenn.) 475; Railroad v. Morris, 68 Tex. 49. (2) The service upon C. M. Saffarans was not sufficient under section 570 of the Revised Statutes, to give the court jurisdiction of the defendant, because; (a), there is nothing in the return indicating that the defendant is not a domestic corporation; (b), the service is totally insufficient as against a domestic corporation; (c), even if there was anything in the record showing or tending to show that the defendant was a corporation organized under the laws of any State other than Missouri, nevertheless the return would be insufficient for the reason that it does not show that the defendant is a corporation of some other State or country nor does it show that it did not have an office in this State; (d), and further, the return shows that Saffarans was not in charge of any office or place of business of defendant, but, on the contrary, was in charge of an office of some other company; (e), the return does not show that Saffarans was an agent or employee of defendant in Missouri. In support of the above points, we cite the cases already referred to under the preceding head; also, Earle v Railroad, 127 F. 235. (3) The return must show a valid service. Thompson on Corp., sec. 7545; Haley v Railroad, 80 Mo. 112; Heath v. Railroad, 83 Mo. 625; Blanton v. Jamison, 3 Mo. 52; Bank v. Suman, 79 Mo. 531; Rosenberger v. Gibson, 165 Mo. 16; Williams v. Monroe, 125 Mo. 584; Gamasche v. Smythe, 60 Mo.App. 161; Vickery v. Railroad, 93 Mo.App. 1; Huff v. Shepard, 58 Mo. 246; Dickerson v. Railroad, 43 Kan. 702; Fallman v. Railroad, 45 F. 156; Miller v. Railroad, 41 F. 431; Settlemier v. Sullivan, 97 U.S. 448, 24 L.Ed. 1111; United States v. Tel. Co., 29 F. 17; Hammond v. Olive, 44 Miss. 547; Railroad v. Dawson, 3 Ill.App. 120. (4) The return must be complete in itself, and can not be helped out by evidence aliunde. See cases already cited; also, Metcalf v. Gillet, 5 Conn. 404; Sanford v. Pond, 37 Conn. 591; Purrington v. Loring, 7 Mass. 392; Wellington v. Gale, 13 Mass. 489; King v. Bates, 80 Mass. 370; Gardner v. Small, 17 N. J. L. 162; Bank v. Barnes, 10 Humph. (Tenn.) 244; Thompson v. Griffis, 19 Tex. 116. (5) Defendant has not waived its right to insist upon its plea to the jurisdiction. (a) It properly united the plea to the jurisdiction with the answer to the merits. Young Men's Christian Assn. v. Dubach, 82 Mo. 475; Cohn v. Lehman, 93 Mo. 574; Christian v. Williams, 111 Mo. 429; Nichols v. Stevens, 123 Mo. 96; Commission Co. v. Block, 130 Mo. 668; State ex rel. v. Valins, 140 Mo. 523; State ex rel. v. Spencer, 166 Mo. 279; Travers v. Railroad, 3 Keyes (N. Y.) 497; 1 Ency. of Plead. and Prac., p. 854. (b) The fact that it took all the necessity steps to sustain both defenses, and that it went to trial on both defenses, does not constitute a waiver of either defense. Little v. Harrington, 71 Mo. 390; Higgins v. Beckwith, 102 Mo. 456; Kenner v. Doe Run Lead Co., 141 Mo. 248; Guy v. Mapes, 141 Mo. 441; Ziefle v. Seid, 137 Mo. 538; Dezell v. Fidelity and Cas. Co., 176 Mo. 293; Roberts v. Ins. Co., 26 Mo.App. 92; Biles v. Beadle, 93 Mo.App. 628; Harkness v. Hyde, 98 U.S. 476, 25 L.Ed. 237; Railroad v. Pinkney, 149 U.S. 194, 37 L.Ed. 699; Railroad v. Gonzales, 151 U.S. 496, 38 L.Ed. 248; Coal Co. v. Railroad, 98 F. 271; Scott v. Hoover, 99 F. 247; Hulbert v. Palmer, 39 Neb. 158; Brewing Assn. v. Peterson, 41 Neb. 897; Hankinson v. Page, 19 Abb. (N. C.) 274; Briggs v. Davis, 34 Maine 158; Simpson v. Railroad, 89 Tenn. (5 Pick.) 304; Deidesheimer v. Brown, 8 Cal. 339; Lyman v. Milton, 44 Cal. 630; Kent v. West, 50 Cal. 185; Waters v. Field, 29 Wash. 565; Kahn v. Loan Assn., 115 Ga. 459; Elliott on App. Proc., sec. 677; 3 Cyc. of Law and Proc., pp. 525-6. (c) The fact that defendant obtained a verdict on the first trial, and appeared to the first appeal, does not constitute a waiver. Johnson v. Dietrich, 152 Mo. 254; Gipson v. Powell, 167 Mo. 195. (6) The court erred in overruling defendant's demurrer to the evidence. Chaney v. Railroad, 176 Mo. 598. (7) The court erred in sustaining plaintiff's objections to the cross-examination of plaintiff in reference to the affidavit made by him for the purpose of obtaining a change of venue. (a) A witness may be asked on cross-examination any question which tends to test his accuracy, veracity or credibility, or to shake his credit by injuring his character. 3 Jones, Evid., secs. 829, 841; 1 Starkie, Evid., 873; State v. Hack, 118 Mo. 99; State v. Taylor, 118 Mo. 160; State v. Downs, 91 Mo. 25; State v. Jones, 106 Mo. 302; Bates v. Holladay, 32 Mo.App. 162; Becker v. Schutte, 85 Mo.App. 57; Stoffer v. State, 15 Ohio St. 47, 86 Am. Dec. 470; Howard v. Ins. Co., 4 Den. (N. Y.) 504; People v. Casey, 72 N.Y. 398; People v. Irving, 95 N.Y. 541; Real v. People, 42 N.Y. 281; People v. Parket, 137 N.Y. 535; Bernstein v. Singer, 1 App.Div. (N. Y.) 63; Thomas v. David, 7 Car. and P. 350; Comm. v. Sacket, 22 Pick. (Mass.) 394; Smith v. State, 64 Md. 25; McLaughlin v. Mencke, 80 Ind. 87; People v. Arnold, 40 Mich. 713; People v. Sutherland, 104 Mich. 468; People v. Rice, 103 Mich. 350; People v. Liphardt, 105 Mich. 80; Johnston v. Ins. Co. (Mich.), 64 N.W. 5; Kellogg v. Nelson, 5 Wis. 131; Kirschner v. State, 9 Wis. 144; Long v. Bove, 106 Ala. 570; People v. Knight (Colo.), 43 P. 6; Bow v. People, 160 Ill. 438; State v. Mecum (Iowa), 64 N.W. 286; State v. Philpot (Iowa), 66 N.W. 730; Willis v. State, 43 Neb. 110; Exon v. State, 33 Tex. Crim. Rep. 461; Sentell v. State (Texas), 30 S.W. 226; Coal Co. v. Lawson (Texas), 31 S.W. 843; Magruder v. State (Texas), 33 S.W. 233; State v. Ward, 49 Conn. 429; Free v. Buckingham, 59 N.H. 219; Hollingsworth v. State, 53 Ark. 387; Fitzpatrick v. Riley, 163 Pa. St. 65; Graham v. McReynolds, 88 Tenn. 240. (b) This rule applies with especial force when the witness is also a party. (c) No question of discretion was involved in this ruling; the refusal to permit the cross-examination was placed upon the ground that it was wholly incompetent for any purpose. (d) Had the court below placed its refusal on discretionary grounds, the rejection of defendant's offer to cross-examine would have been an abuse of discretion. Koenig v. Railroad, 173 Mo. 722; In re Mason, 14 N.Y.S. 440; Jones on Evid., sec. 841; Carroll v. State, 32 Tex. Cr. Rep. 434; People v. Harrison, 93 Mich. 594. (8) The court below erred in overruling defendant's objection to the question put to the policeman on his redirect examination. (a) The question was leading. Walser v. Graham, 45 Mo.App. 639; Anderson's Dict. of Law, Titles, "Leading Question," "Question;" People v. Mather, 4 Wend. (N. Y.) 247. (b) It was the most objectionable form of a leading question in that it imputed to the witness testimony which he had not given, viz., that he had seen oil on the incline. 3 Jones, Evid., sec. 838; Sanderlin v. Sanderlin, 24 Ga. 583; Carpenter v. Ambroson, 20 Ill. 172; Haish v. Munday, 12 Ill.App. 545; Railroad v. Thompson, 10 Md. 83; Klock v. State, 60 Wis. 576; People v. Graham, 21 Cal. 266; People v. Ah Sing, 70 Cal. 11. (9) The court below erred in excluding the testimony offered by defendant to show that large crowds had been handled in the Buffalo station without accident. Brewing Co. v. Talbot, 141 Mo. 683; Hysell v. Swift, 78 Mo.App. 47. (10) the court below erred in giving the first six instructions asked by defendant: (a) Plaintiff's first instruction given was erroneous; (b) because not based upon the pleadings. Sidway v. Missouri L. & L. S. Co., 163 Mo. 374; Hesselbach v. St. Louis, 179 Mo. 505. (c) Because it declares as a matter of law that the porter's act was negligent. (d) The instruction excludes from the consideration of the jury one of the charges of contributory negligence. (2) Plaintiff's second instruction given was erroneous: (a) Because it ignores plaintiff's contributory negligence in failing to make such inquiries as he should have made as to the location of the car. Murray v. Railroad, 176 Mo. 190. (b) Because such failure, even if it had been proved, could not have been the proximate cause of plaintiff's injury. It is for plaintiff to show the causal connection between the negligence and the injury. Warner v. Railroad, 77 S.W. 67. (c) Plaintiff's third instruction given was erroneous: (1) Because it declares as a matter of law that a railroad company must provide a safe place for passengers to alight from its trains when in motion; and this, too, regardless of the speed of the train. Grattis v. Railroad, 153 Mo. 404; Railroad v. Scates, 90 Ill. 586; Burrows v. Railroad, 63 N.Y. 556; Central R. & B. Co. v. Letcher, 69 Ala. 106; Solomon v. Railroad, 103 N.Y. 443; Laflin v. Railroad, 106 N.Y. 139; Hiatt v. Railroad, 96 Iowa 169; Crocheron v. Ferry Co., 56 N.Y. 655; Crafter v. Railroad, L. R. 1 C. P. 300; Thompson on Carriers, p. 104n; Thompson on Negligence, sec. 2691. (2) Because there was no evidence that there was "grease or other slippery material" on the incline at the...

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