The Federal Betterment Company v. Reeves

• Decision Date: 10 February 1906
• Docket Number: 14,482
• Citation: 73 Kan. 107,84 P. 560
• Parties: THE FEDERAL BETTERMENT COMPANY v. JOHN W. REEVES
• Court: Kansas Supreme Court

84 P. 560

73 Kan. 107

THE FEDERAL BETTERMENT COMPANY v. JOHN W. REEVES

No. 14,482

Supreme Court of Kansas

February 10, 1906

Decided January, 1906.

Error from Neosho district court; LEANDER STILLWELL, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. FOREIGN CORPORATIONS--Managing Agent--Service of Summons. One who has exclusive supervision and control of some department of a corporation's business, the management of which requires of such person the exercise of independent judgment and discretion, and the exercise of such authority that it may be fairly said that service of summons upon him will result in notice to the corporation, is a managing agent within the meaning of the statute providing for the service of summons upon a managing agent of a foreign corporation.

2. EVIDENCE--Physician--Conclusions from Statements by a Patient. A physician while testifying as an expert is not permitted to testify to his conclusions as to the permanency of an injury to his patient, based partially upon the history of the injury detailed to him by the patient or other person and partially upon his own examination.

3. FOREIGN CORPORATIONS--Service of Process. The various methods provided by statute for obtaining service of process on foreign corporations are cumulative.

Burnham & Dashiell, for plaintiff in error; J. L. Denison, of counsel.

W. R. Cline, for defendant in error.

GREENE J. JOHNSTON, C. J., BURCH, MASON, SMITH, GRAVES, JJ., concurring. PORTER, J., dissenting.

OPINION

GREENE, J.

John W. Reeves recovered judgment for injuries alleged to have been sustained by him through the negligence of the defendant, the Federal Betterment Company, a corporation. The facts alleged in the petition are, substantially, that the plaintiff was working for the Morehead Manufacturing Company in its factory, situated at Morehead, in Neosho county, Kansas; that the defendant was a corporation engaged in drilling for oil and gas and in the transportation of such products by pipe-lines to consumers; that it led a pipe from its main line into the Morehead Manufacturing Company's place of business for the purpose of supplying that company with natural gas for fuel to operate its factory; that in doing so it attached thereto what is called a "Tobey meter," but negligently failed to place any regulator between the meter and the high pressure in the main line, thus permitting the high pressure in the main line to come into the lateral line in the factory; that, through the negligent acts of the defendant in carelessly, negligently and unskilfully constructing and maintaining the pipe and meter, and in failing to place a regulator between its main pipe-line and the meter in the factory where the plaintiff was working, and in using a meter which was insufficient to restrain the high pressure of the natural gas in the main line, the pressure burst the meter, causing an explosion which hurled plaintiff the distance of a rod, knocking him senseless, or into such a dazed condition that he did not realize what had happened; that the concussion was so great as to injure his ear and hearing on the side next to the explosion, and permanently to injure his left side, shoulder, and chest; and that either by reason of the explosion of the gas upon him, or by reason of being struck on the left side of his head by some missile hurled against him by the explosion, he sustained concussion of the brain, resulting in acute mania, which lasted in a severe form for several weeks, during which time he required the constant care and attention of others. Other allegations as to the extent of plaintiff's injuries were made.

Upon the filing of this petition in the district court of Neosho county, in which county the accident occurred, a summons was issued, directed and delivered to the sheriff, upon which he made the following amended return of service:

"Received this writ May 24, 1904, and as I was unable to find the president, chairman of the board of directors or trustees, or other chief officer, or the cashier, treasurer, secretary or clerk, I served the same, as commanded therein, in my county of Neosho and state of Kansas, on the within-named defendant, the Federal Betterment Company, a corporation, as follows: On May 21, 1904, by delivering to W. Kinney, managing agent of said Federal Betterment Company, by delivering to him personally a true and certified copy of the within summons, with all the indorsements thereon.

I. F. YOCKEY, Sheriff, Neosho County, Kansas.

By J. T. SMITH, Deputy (who was specially requested to make said service)."

The defendant appeared specially and filed the following motion to quash the summons:

"Now comes the Federal Betterment Company, appearing specially and for the purpose of this motion only, and moves the court now here to quash, vacate and set aside the pretended summons and the pretended service thereof in the above-entitled action, for the following reasons, to wit:

"(1) Because there has been no service of summons upon the said Federal Betterment Company.

"(2) Because there has been no service of summons upon the said Federal Betterment Company, or any authorized agent of said company.

"(3) Because said action was improperly instituted in Neosho county, Kansas.

"(4) Because said pretended summons was improvidently issued.

"(5) Because said summons and the return thereof are void and of no effect, and the court has not by the issuance of such summons obtained any jurisdiction whatever over said Federal Betterment Company."

In support of the motion defendant introduced a certified copy of its charter, showing that it was incorporated under the laws of West Virginia, which charter states that the principal place of business shall be located in the city of Topeka, Shawnee county, state of Kansas; and that its chief works shall be located in the city of Cherryvale, Montgomery county, Kansas, but that it is expected and intended by the company to have branches located at other points in the state of Kansas, and also in the state of Missouri, Indian Territory, and Oklahoma territory, and at numerous other places. It also caused to be read the affidavit of F. W. Freeman, as follows:

"Affiant is the secretary and treasurer of the Federal Betterment Company; that affiant resides in the city of Topeka, county of Shawnee and state of Kansas; that the said Federal Betterment Company is a corporation duly organized and existing under and by virtue of the laws of the state of West Virginia, and that said corporation now is, and has been for about one year last past, duly authorized to transact business in the state of Kansas, and that in said last-named state said corporation has an office at the city of Topeka, and that all the chief officers of said corporation are now and have for a long time been actual residents of Shawnee county, in the state of Kansas; that said corporation has not now and never has had any office or place of business in the county of Neosho, in said state, and that none of its officers reside therein, but that affiant is informed and believes that in the above-entitled action service of summons was attempted to be made in the above-entitled action upon the said Federal Betterment Company in Neosho county, Kansas, by delivering a pretended copy of an alleged summons to one W. Kinney; but affiant avers that said W. Kinney was not at the time of such pretended service, had never theretofore been, and is not now, an officer or agent of said company, and said W. Kinney is not now and never has been the cashier, treasurer, secretary, clerk or managing agent of said Federal Betterment Company, and is not now and never has been a person in charge of any office of said company."

It also filed the certificate of the secretary of state of the state of Kansas showing that the charter board had authorized the Federal Betterment Company to engage in the business of mining and other pursuits, as expressed in the application, in the state of Kansas, until the certificate should be revoked, or the authority canceled.

In refutation of the proofs offered on the motion the plaintiff introduced the affidavit of J. T. Smith, a resident of Morehead, Neosho county, Kansas, which reads:

"J T. Smith, of lawful age, being duly sworn, on his oath says That he resides at Morehead, Neosho county, Kansas, and that he is a user of natural gas, which he obtained from the Federal Betterment Company; that affiant is one of the proprietors of the Morehead Manufacturing Company, which said factory is located just west of Morehead, in Neosho county, Kansas; that affiant not only made contracts with said Federal Betterment Company or with its foreman and agent, W. Kinney, for the use of gas in his residence but also for gas for said factory; affiant knows that said Kinney employed all the hands and hired, worked and discharged all the men that put in the gas lines for said defendant company; that he, said Kinney, paid off all the company's hands; that he, said Kinney, made all contracts with gas users; that he put in all pipe-lines and connected the defendant's high-pressure line with the buildings of all gas users; that said Kinney collected the gas rentals due said company each month and receipted for the same in the name of said defendant company, by 'W. Kinney, its agent or managing foreman;' that said Kinney did and performed all things for and in behalf of said company in Neosho county; that said Kinney was located a part of the time each month at Morehead, Neosho county, Kansas, in the discharge of his duties as agent and field manager of said defendant, and that he sold gas at Morehead, and collected same monthly in the name of said defendant, the Federal Betterment Company; that affiant...