Painter v. Colorado Springs & Cripple Creek Dist. Ry. Co.

• Decision Date: 22 October 1907
• Citation: 104 S.W. 1139,127 Mo. App. 248
• Parties: PAINTER v. COLORADO SPRINGS & CRIPPLE CREEK DIST. RY. CO.
• Court: Missouri Court of Appeals

104 S.W. 1139

127 Mo. A. 248

PAINTER v. COLORADO SPRINGS & CRIPPLE CREEK DIST. RY. CO.

St. Louis Court of Appeals. Missouri.

October 22, 1907.

1. CORPORATIONS — FOREIGN CORPORATIONS — PROCESS — SERVICE.

Under Rev. St. 1899, § 570, subd. 4 [Ann. St. 1906, p. 597], providing that, where a foreign corporation has no office or place of business in the state, summons may be served upon any officer, agent, or employé in any county where such service may be obtained, service may be had upon an officer, agent, or employé engaged in transacting business for the corporation in the state, where it has no office or place of business in the state.

2. SAME.

An agent of a foreign corporation sent to the state to investigate plaintiff's claim for damages for personal injuries is not transacting business for the corporation within Rev. St. 1899, § 570, subd. 4 [Ann. St. 1906, p. 597], authorizing the service of process upon an agent transacting business in the state for a corporation, where it has no office or place of business in the state.

Appeal from Circuit Court, Montgomery County; Jas. D. Barnett, Judge.

Action by Irene Painter against the Colorado Springs & Cripple Creek District Railway Company. From a judgment dismissing the action, plaintiff appeals. Affirmed.

Claude R. Ball, for appellant. Robertson & Robertson, for respondent.

BLAND, P. J.

Plaintiff's amended petition contains the following: "Now comes the plaintiff in the above-entitled cause, leave of court first had and obtained, and files this her first amended petition. Plaintiff states that the defendant is a corporation, duly and legally incorporated, and operates a railroad existing from Cripple creek, Colo., to or near Cañon City in the state of Colorado, on which line of railroad there is a station of defendant called Midway; that defendant so owned and operated its said railroad on the 9th day of October, 1906, and at all times hereinafter stated in this petition." Plaintiff then states that while riding as a passenger on said railroad in the state of Colorado, near said Midway Station, a collision occurred by which plaintiff was injured. Attempted service was had in Montgomery county, Mo., on the 18th day of April, 1907. The amended return of the sheriff is as follows: "Now comes George E. Earnest, sheriff of Montgomery county, Mo., with leave of court first had and obtained, and files his amended return as follows: Executed the within writ in the county of Montgomery and state of Missouri on the 18th day of April, 1907, by delivering a copy of the writ and petition as furnished by Everett Barton, clerk of the circuit court, to D. C. Scott, agent and employé of the Colorado Springs & Cripple Creek District Railway Company, the within named defendant. The Colorado Springs & Cripple Creek District Railway Company, the within named defendant, had no office or place of business in Montgomery county, Mo., nor in the state of Missouri at which the writ could be served and the president or any other high chief officer of said defendant could not be found in Montgomery county at the time of said service." Defendant's plea to the jurisdiction and motion to dismiss is as follows: "Now comes the defendant herein, and, for the purpose of this motion only, denies that the court has or can have any jurisdiction of the defendant in this cause, and moves to quash the writ issued herein for the reason that it appears upon the face of the petition that the defendant is a corporation, organized, existing, and operating solely within the state of Colorado, and is not operating its railroad and never did within the state of Missouri, and that neither has it an office in the state of Missouri, neither does it transact any business in the state of Missouri and has never entered the state of Missouri for the purpose of transacting any of its business, nor neither has the defendant an office, chief or otherwise, in this state, or any agent or officer in charge of any office in this state, nor has it any agent in this state, nor has it ever had any agent or office in this state for the transaction of its business. (2) Defendant further moves to quash the return of the sheriff herein, for the reason that it is not sufficient to show that the said circuit court of Montgomery county or any other court in Missouri has jurisdiction over the defendant, and for the reason that it does not show that defendant has an office or is doing business in this state. (3) For the reason that it is shown that the defendant is not engaged in business in this state, and was not so engaged at the date of the service herein, and the defendant prays the court to dismiss plaintiff's petition for want of jurisdiction."

In support of plaintiff's plea, the affidavit of J. H. Waters was filed, and is substantially as follows: That for several years last past he has been the general manager of the defendant corporation and has control over the employment and discharge of all agents and employés of the company; that the company always has been and is now a corporation organized, existing, and doing...