State ex rel. General Mills v. Waltner

• Decision Date: 25 October 1941
• Docket Number: 37538
• Parties: State of Missouri at the relation of General Mills, Inc., a Corporation, Relator, v. Marion D. Waltner, Judge of the Circuit Court of Jackson County, at Independence
• Court: Missouri Supreme Court

156 S.W.2d 664

348 Mo. 852

State of Missouri at the relation of General Mills, Inc., a Corporation, Relator, v. Marion D. Waltner, Judge of the Circuit Court of Jackson County, at Independence

No. 37538

Supreme Court of Missouri

October 25, 1941

Rehearing Denied November 26, 1941.

Writ made absolute.

Johnson & Davis for relator.

(1) Respondent cannot acquire jurisdiction of the relator by substituting the relator's name for another corporation named in the plaintiff's second amended petition under the guise of amending the petition, process and return. R. S 1939, sec. 871; Thompson v. Allen, 86 Mo. 85; Sylvester Hall v. School District No. 4, 36 Mo.App 21; Clements v. Greenwell, 40 Mo.App. 589; Haney v. Thompson, 339 Mo. 505, 98 S.W.2d 639; Jordan v C. & A. Ry. Co., 105 Mo.App. 446, 79 S.W. 1155. (a) The allegation made by the plaintiff in his motion to amend his pleadings, process, records and return and in his return to this court's preliminary writ do not constitute evidence of the facts therein inserted. Hodges v. Stuart Lumber Co., 140 Ga. 569, 79 S.E. 462; Jordan v. C. & A. Ry. Co., 105 Mo.App. 446, 79 S.W. 1155. (b) The Star Milling Company of Delaware was subject to suit in the courts of Kansas for a period of more than two years after September 3, 1935. Revised Code of Delaware, 1935, chap. 65, sec. 42; Carle v. International Clay Products Co., 132 A. 892; Townsend v. Delaware Glue Co., 103 A. 576; Lyman v. The Knickerbocker Theatre Co., 5 F.2d 538; General Statutes of Kansas, 1935, sec. 17-804. (c) The serving of a copy of plaintiff's motion to amend his pleadings, process, records and return upon relator, by plaintiff's attorney, did not give the court jurisdiction over General Mills, Inc. Anderson v. Anderson, 55 Mo.App. 268. (2) The court erred in directing and permitting the sheriff of Jasper County to amend his return, for the reason that said sheriff's return was conclusive upon its face and cannot be collaterally attacked. Hallowel v. Page, 24 Mo. 590; Bank v. Sumans, Administrator, 79 Mo. 572; Smoot v. Judd, 184 Mo. 508, 83 S.W. 481; State ex rel. Frazier v. Green, 143 S.W.2d 64. (2) Prohibition is the proper remedy where a circuit court acts without, or in excess of, its jurisdiction. Dahlberg v. Fisse, 328 Mo. 213, 40 S.W.2d 606; Riggs v. Seehorn, 344 Mo. 186, 125 S.W.2d 85; State ex rel. National Refining Co. v. Seehorn, 344 Mo. 547, 127 S.W.2d 418; State ex rel. Paving Co. v. Aronson, 138 S.W.2d 1.

Clarence C. Chilcott and Walter A. Raymond for respondent.

(1) Service of process was duly made on the agent of relator in charge at its business office although in a wrong name. Jurisdiction was conferred by such service of process and an amendment of the sheriff's return correcting the name was properly allowed. Ohlmann v. Clarkson Sawmill Co., 222 Mo. 62, 120 S.W. 1155; Porter v. Mo. Pac. Ry. Co., 219 Mo.App. 19, 267 S.W. 964; Bedell v. Richardson Lubricating Co., 209 Mo.App. 238, 226 S.W. 653; Kahn v. Mercantile Town Mut. Ins. Co., 228 Mo. 585, 128 S.W. 995; Taylor v. Mo. Pac. Ry. Co., 311 Mo. 604, 279 S.W. 115; Miller v. Ralston Purina Co., 341 Mo. 811, 109 S.W.2d 866; State ex rel. Consolidated School Dist. No. 8 of Pemiscot County v. Smith, 343 Mo. 288, 121 S.W.2d 160; Palmer v. C. & A. Ry. Co., 142 Mo.App. 633, 121 S.W. 1087; Berry v. Railroad, 52 Kan. 774, 36 P. 724, 39 Am. St. Rep. 381; State ex rel. Texas Portland Cement Co. v. Sale, 232 Mo. 166, 132 S.W. 1118; State ex rel. v. Williams, 345 Mo. 22, 131 S.W.2d 561; State ex rel. Columbia National Bank v. Davis, 314 Mo. 373, 284 S.W. 464; Smoot v. Judd, 184 Mo. 508, 83 S.W. 481; Walker v. Wabash Ry. Co., 193 Mo. 453, 92 S.W. 83; Smoot v. Judd, 184 Mo. 508, 83 S.W. 481; Gilbert v. Malan, 231 Mo.App. 469, 100 S.W.2d 606; Waterman v. Chicago Bridge & Iron Works, 328 Mo. 688, 41 S.W.2d 575. (2) Relator is the real party liable to plaintiff in this action. Its subsidiary, Red Star Milling Company, was a mere department or agency for the transaction of relator's business. (a) The subsidiary, Red Star Milling Company, and the parent company, General Mills, Inc., were in complete economic unity; hence the liabilities of the subsidiary were likewise liabilities of the parent company. May Department Stores Co. v. Union Elec. L. & P. Co., 341 Mo. 299, 107 S.W.2d 41. (b) The dominance of the parent company, General Mills, Inc., over its wholly owned subsidiary, the Red Star Milling Company, a Delaware corporation, made the subsidiary a mere dummy, a mere agency, instrumentality, or adjunct of the parent corporation, for whose acts the parent company was liable, as principal. Fish v. East, 114 F.2d 177; Commerce Trust Co. v. Woodbury, 77 F.2d 478; Page v. Arkansas Natural Gas Corp., 53 F.2d 27; Centmont Corp. v. Marsch, 68 F.2d 460; Certain-Teed Products Corp. v. Wallinger, 89 F.2d 427; State ex rel. United Brick & Tile Co. v. Wright, 339 Mo. 160, 95 S.W.2d 804; Barrie v. United Rys. Co. of St. Louis. 138 Mo.App. 557, 119 S.W. 1020; Brown v. General Motors Corp., 95 S.W.2d 654; Gordon v. Bleek, 233 S.W. 265; Carson v. Quinn, 127 Mo.App. 525, 105 S.W. 1088; Smith v. Harbison-Walker Refractories Co., 340 Mo. 389, 100 S.W.2d 909; Jensen v. Hinderks, 338 Mo. 459, 92 S.W.2d 108. (3) The court properly directed and permitted the sheriff of Jasper County to amend his return to conform to the facts. Taylor v. Helter, 198 Mo.App. 643, 201 S.W. 618; Green v. Strother, 201 Mo.App. 418, 212 S.W. 399; Giddens v. Bankers Guaranty Life Co., 225 Mo.App. 742, 37 S.W.2d 658; Kurre v. American Indemnity Co., 223 Mo.App. 406, 17 S.W.2d 685.

OPINION

Clark, J.

Original proceedings in this court at the relation of General Mills, Inc., to prohibit the circuit court of Jackson County from proceeding further against relator as a defendant in the case of Harry Nance v. The Atchison, Topeka and Santa Fe Railway Company, a corporation, and General Mills, Inc., a corporation.

On August 24, 1936, Nance filed his suit for damages against the railway company as sole defendant, alleging that he received injuries while working for that company on the premises of the Red Star Mill in Wichita, Kansas, in September, 1935. On December 18, 1936, Nance filed an amended petition against the railway company. In August, 1937, he filed an amended petition against the railway company and the Red Star Milling Company, alleging the latter company to be a Kansas corporation, and that it owned and operated the Red Star Mill. Summons was issued to the Sheriff of Jasper County, Missouri, and returned by him as served by delivering a copy of the summons and amended petition to C. E. McFerron, bookkeeper for defendant, Red Star Milling Company, a corporation, in charge of said defendant's business office, etc. On September 15, 1937, Red Star Milling Company, appearing specially, filed a plea in abatement stating that it had been dissolved prior to August, 1937; that at the time of service of said process it had no place of business and McFerron was not in its employ. Coupled with this plea was a general denial. The plea was never presented to or passed upon by the court. On December 12, 1939, Nance filed a motion to amend the pleadings, process, records and return by substituting the name "General Mills, Inc.," a Delaware corporation, in lieu of "Red Star Milling Company," a Kansas corporation, and to direct and permit the sheriff to amend his return accordingly. The motion alleged that General Mills was the real name of the defendant which plaintiff sued and intended to sue; that the summons was actually served on McFerron, agent in charge of the business office of General Mills; that General Mills was generally known as "Red Star Milling Company" and by that name proclaimed itself to the public and transacted most of its business. This motion was served on the General Mills Corporation and on December 27, 1939, was presented to the court and, after hearing the evidence and arguments and taking the matter under advisement until August 31, 1940, the court sustained the motion. On September 7, 1940, the relator, appearing specially, filed its motion to quash the amended summons and amended return. By agreement of parties the evidence taken on plaintiff's motion was resubmitted on relator's motion to quash. The motion to quash was heard by the court in November, 1940, taken under advisement and overruled on January 10, 1941.

In this court relator sets out several "points" but, as we view the case, the only question is: Does the amendment of the pleading, record, process and return constitute the substitution of a new cause of action under the guise of an amendment?

From the evidence taken on the motion to amend and from statements contained in briefs of counsel, the following facts appear: prior to July, 1928, the Red Star Mill at Wichita was owned and operated by a Kansas corporation under the name of Red Star Milling Company; on or about that date, General Mills, Inc., a Delaware corporation, applied for and received permission to do business in Kansas, stating that it had a contract to acquire all the assets of Red Star Milling Company; shortly thereafter the Kansas corporation conveyed its assets to General Mills, Inc., and was dissolved; General Mills operated the Wichita property until October, 1933, when it leased the same to a Delaware corporation organized in 1928 under the name of Red Star Milling Company; on or about June 1, 1937, General Mills, Inc., again took over the Wichita property and a branch office or warehouse at Joplin, Missouri, which had been established in 1936, and shortly thereafter the Red Star Milling Company (Delaware corporation) was dissolved.

The plaintiff also introduced evidence tending to show: that the stock of Red Star Milling Company (Delaware corporation) was ...