Smith v. Warden

• Decision Date: 30 April 1885
• Citation: 86 Mo. 382
• Parties: SMITH et al. v. WARDEN et al., Appellants.
• Court: Missouri Supreme Court

86 Mo. 382

SMITH et al.

v.WARDEN et al., Appellants.

Supreme Court of Missouri.

April Term, 1885.

Appeal from Hannibal Court of Common Pleas.--HON. JOHN T. REDD, Judge.

AFFIRMED.

Easley & Russell, David H. Eby and R. E. Anderson for appellants.

(1) The Hannibal Meat Company, Limited, is an association created under and recognized by the laws of Pennsylvania; lacks none, but has all the attributes and characteristics of a corporation. It has: ( a) A distinctive associate name, by which it may contract. ( b) Perpetuity by transfer of its shares of capital. ( c) Power to sue, and liability to be sued in the associate name. ( d) Power to hold, convey and mortgage in the associate name, property of all kinds, and ( e) the “right to adopt and use a common seal.” This would seem to give the association corporate existence within the terms of the best definitions of a corporation. 2 Kent's Com. 278; Ang. & Ames on Corp. (10 Ed.) sec. 110; Field on Corp., sec. 1; Dartmouth College v. Woodward, 4 Wheat. 636; Cutter v. Thomas, 25 Vt. 73; 1 Wood's Collyer on Part., p. 5, note. (2) A joint stock association having like, but less powers than this, formed under the laws of England, which declared that the company should not be deemed a corporation, has been held to be a corporation by the Supreme Court of the United States. Liverpool Ins. Co. v. Massachusetts, 10 Wall. 566; Oliver v. Ins. Co., 100 Mass. 531; Lewis v. St. Charles Co., 5 Mo. App. 230; Fargo v. Louisville, etc., Ry. Co., 20 Am. L. Reg. (N. S.) 529. (3) It seems that the members of limited partnership associations as to liability, are placed upon a similar footing with the members of perfect corporations, and are denominated quasi corporations. Ang. & Ames on Corp. (10 Ed.) secs. 42, 45; Field on Corp., sec. 4; 1 Bouvier's Inst. (Ed. 1872) sec. 186. (4) This action cannot be maintained, because it is not shown that the plaintiffs have exhausted their remedy against the Hannibal Meat Company, Limited, or shown such remedy to be ineffectual. McClaren v. Franciscus, 43 Mo. 452;Thompson on Stockholders, sec. 312; Blair v. Gray, 101 U. S. 769. (5) The law of the state under which the company was formed must control and govern the liability of the defendants. King v. Sarria, 69 N. Y. 24; Thompson on Stockholders, secs. 81, 83; 20 Am. Law Reg. (N. S.) 532. (6) The Hannibal Meat Company, Limited, could only be liable for negligence, neither it nor any member of the company could be held simply because the boiler exploded and injury followed. Losee v. Buchanan, 51 N. Y. 476. (7) The instructions, given by the court of its own motion, are contradictory of the third given for defendants, and submit issues not made by the pleadings. It cannot be determined whether the jury found on the ground of the incompetency of Collins or not. Henschen v. O'Bannon, 56 Mo. 289; Wood v. Steamboat, 19 Mo. 529: Modisett v. McPike, 74 Mo. 648.

T. H. Bacon for respondents.

(1) The Pennsylvania statutes of limited partnerships, in providing for the creation of certain elements of corporate capacity, do not provide for the creation of corporate individuality. The members of the company, when organized, formed in Pennsylvania what in many states is termed a voluntary association. Such bodies are not corporations, at home. Leech v. Harris, 2 Brewst. 571; Taft v. Ward, 106 Mass. 518. (2) By their answer defendants pleaded that the company was a joint stock one, under the laws of Pennsylvania, and they are estopped to claim it was a corporation. Chapman v. Chapman, 66 Mo. 299; Russell v. Whitley, 59 Mo. 196. (3) The alleged meat company was not organized until long after the accident. The members having, before a legal organization of the company, opened business in Missouri, are liable to strangers as general partners. Richardson v. Pitts, 71 Mo. 128; Hurt v. Salisbury, 55 Mo. 310. (4) The husband's claim was a separate cause of action ( Smith v. St. Joseph, 55 Mo. 456), and the receipt from him in evidence restricted itself to his damages, and the court had the right to instruct it out. Early v. Le Faivre, 53 Mo. 470; Wells v. Dryden, 52 Mo. 319; Cape Girardeau v. Harbison, 58 Mo. 94. The husband was not a competent witness ( Wood v. Broadley, 76 Mo. 23), and his alleged statements in pais were not evidence. Even if his testimony had been admissible it could not prove his agency ( Williams v. Williams, 67 Mo. 661, p. 664), and much less could his hearsay statements be admissible without proof aliunde of his agency ( Sumner v. Saunders, 51 Mo. 89), and by the statutes of 1875 nothing less than her written authority could enable her husband to appropriate her claim. Laws 1875, p. 61. He did not profess to collect her claim, and did not sign for her, or as her agent, but signed only in his own right. Eystra v. Capelle, 61 Mo. 578, p. 580. (5) The verdict was properly rendered for the “plaintiff.” The plaintiff had no right to embrace in her suit any claim for the husband's damages ( Dailey v. Houston, 58 Mo. 361), and her averments fully excluded such claim. The husband was but a nominal plaintiff. Smith v. St. Joseph, 55 Mo. 456. He was joined as husband, and not as co-plaintiff ( Boal v. Morgner, 46 Mo. 48), because the statute in force at the time required him to be joined. W. S., 1872, sec. 8, p. 1001. (6) The court wrongfully ( O'Mara v. Hudson, 38 N. Y. 445, p. 448, top), instructed the plaintiff out of court as to the alleged responsibility of the defendant for employing a fireman to act as engineer. (See Harper v. Indianapolis, 47 Mo. 567) and the court instructed the plaintiff out of court as to the alleged unsafe or dangerous condition of the boiler, so that any alleged error in these regards was swept away. Of the two instructions refused, the second was necessarily dispensed with in defendant's favor, and there was no evidence to support defendant's instruction hypothecating organization in 1878. The opinion of Lippincott, as an expert, was properly admitted in evidence. Eyerman v. Shehan, 52 Mo. 221: Maher v. Railroad, 64 Mo. 276. Opinions formed from observation are often allowed, even in cases of non-expert witnesses. Appleby v. Brock, 76 Mo. 314; Simmons v. Carrico, 68 Mo. 416; Kem v. St. Louis, 40 Mo. 26.

RAY, J.

This was an action for damages for personal injuries to the plaintiff, Leonora Smith, begun in the Hannibal court of common pleas, April 10, 1879. The petition alleges: (1) The marital relation between the plaintiffs. (2) That the defendants, on the second day of February, 1878, entered into a co-partnership, under the firm name, style, and description of “The Hannibal Meat Company, Limited.” (3) That in the prosecution of the partnership business, the defendants erected on certain premises in the city of Hannibal a second-hand steam boiler opposite plaintiff's residence. (4) That said steam boiler was greatly impaired and weakened by age, exposure to the elements, and previous service, and was suffered by defendants so to remain, and that such insufficiency of said boiler was known to defendants. (5) That defendants, in their use of said boiler, employed “an unskilful and incompetent agency, and knowingly placed said boiler under the control thereof.” (6) That in the service of defendants the said boiler was subjected to unusual requirements involving unsafe and excessive strains and pressure, and was otherwise overtaxed. (7) The plaintiffs further say that by means of the premises, the defendants negligently caused and suffered said boiler to be and remain in an unreasonably unsafe and dangerous condition, and on August 23, 1878, the defendants being in charge, control, and operation of said boiler, by their agents and servants, did negligently manage and use said boiler, and by the negligence, unskilfulness, and misconduct of defendants, by their agent and servant, the said boiler was caused and suffered to explode, and thereby did explode with great violence, rending the same and the surrounding materials with great force, and projecting portions of the same with great force and violence at, against, and into the said abode of plaintiffs. Plaintiffs say that at the time of said explosion the said Leonora Smith, co-plaintiff herein, was sitting in the front door of her dwelling aforesaid, and by the missiles and materials impelled by said explosion, she was struck with great force and violence on the chest, and on each side of her abdomen, and on her thigh, and thereby was felled to the floor, the said blows greatly bruising and wounding her body, and permanently creating hernia on each side of her abdomen, and disabling her for life.

The answer: (1) Admits the relation of husband and wife between the plaintiffs, and that Leonora was injured by the explosion of the boiler, but denies that she was injured to the extent alleged in the petition. (2) The other allegations of the answer put in issue the remaining allegations of the petition. (3) And for another and further defence herein, defendants say that at the time of the injury “The Hannibal Meat Company, Limited,” was, and now is, a joint stock company; that said joint stock company had been, prior thereto, to-wit: on the .......... day of .........., 1878, duly, and in proper form of law, organized at the city of Philadelphia, in the state of Pennsylvania, in pursuance and by authority of the laws of said state, under the associated name of “The Hannibal Meat Company, Limited.” That said company established its principal office and place of business in said city of Philadelphia, and thereafter, as it was by the laws of said state of Pennsylvania authorized to do, as defendants aver, on the ........ day of .........., 1878, established at the city of Hannibal, in the state of Missouri, an office and place of business. That the business which said company was, by the laws of said state of Pennsylvania, authorized to do, and which it was doing at the time of said explosion and injury, was the buying and killing cattle,...