The State ex rel. Quincy, Omaha & Kansas City Railroad Co. v. Myers
| Decision Date | 07 October 1907 |
| Citation | 104 S.W. 1146,126 Mo.App. 544 |
| Parties | THE STATE OF MISSOURI ex rel. QUINCY, OMAHA & KANSAS CITY RAILROAD COMPANY, Respondent, v. WILLIAM C. MYERS, Appellant |
| Court | Kansas Court of Appeals |
Appeal from Grundy Circuit Court.--Hon. George W. Wannemaker, Judge.
REVERSED.
Judgment reversed.
E. M Harber and A. G. Knight for appellant.
(1) If tested by definitions and the construction of the language employed by the statute then the term "any business office of the company" is fully met by the facts of this case. 1 Words & Phrases, 915; 5 Am. and Eng. Ency. of Law (2 Ed.), 71, 72, 76; 1 Am. and Eng. Ency. of Law (2 Ed.), 908; Trustees of Columbia College (N.Y.), 47 How. Prac. 275; Martin v. State, 59 Ala. 36; Goddard v. Chaffee, 2 Allen (Mass.) ___; 22 Am. and Eng. Ency. of Law (2 Ed.), 831; Stephenson v. Primrose, 33 Am. Dec. 281; Rhodes v. Turnpike Co., 98 Mass. 95; Palmer v Kelleher, 111 Mass. 320; Bolinger v. Manning, 79 Cal. 7; Rodden v. Doane, 92 Cal. 557. (2) If we apply the test of looking to the object, spirit and meaning of section 995 supra, the service in this case must likewise be upheld. 19 Am. and Eng. Ency. Plead. & Prac., 664, 666 677; Davis v. Railroad, 126 Mo. 76; Heltzel v. Railroad, 77 Mo. 483; Heltzell v. Railroad, 77 Mo. 315; Hill v. Steel Co., 90 Mo. 103; Hoen v. Railroad, 64 Mo. 561; Young v. Insurance Co., 180 Mo. 153; Palmer v. Railroad, 35 Hun (N.Y.) 369; Barrett v. Telegraph Co., 56 Hun (N.Y.) 430; 18 Civ. Pro., 138 N.Y. 491; Insurance Co. v. Reid, 19 Ind.App. 203; Eisenhofer v. N. Y. Zietung Pub. & Print. Co., 91 A.D. 94; Lungchung v. Railroad, 16 Am. and Eng. R. R. Cases, 551; Copeland v. Wireless Telegraph Co., 136 N.C. 11; 48 S.E. 501; Railroad v. Kelley (Tex.), 83 S.W. 855; 2 Cur. Law 1262; Cloud v. Inhabitants Pierce City, 86 Mo. 357. (3) There is an abundance of authority construing managing agent, agents of foreign corporations doing business in this State, but they throw no light upon the statute under review, and we cite the following as samples of that line of decisions. Doe v. Mfg. Co. (U.S.), 104 F. 684, 687, 44 C. C. A. 128; Mulhearn v. Press Pub. Co., 20 A. 760, 53 N. J. Law (24 Vroom) 150; Mikolas v. Walker & Sons, 76 N.W. 36, 73 Minn. 305; Gottschalk Co. v. Distilling & Cattle Feeding Co. (U.S.), 50 F. 681; Wall v. Railroad (U. S.), 95 F. 398-400; 37 C. C. A. 129; Denver & R. G. R. Co. v. Roller (U.S.), 100 F. 738, 41 C. C. A. 22, 49 L. R. A. 77; Foster v. Lumber Co., 23 L. R. A. 490 and note to 503; Pinney v. Loan & Invest. Co., 50 L. R. A. 577 and note to 599; Federal Betterment Co. v. Reeves, 4 L. R. A. (N. S.) 460 and note; Tuchband v. Railroad, 40 Am. and Eng. R. R. Cases, 612 and note to 624; Land Co. v. Land & Cattle Co., 187 Mo. 420; Williams v. Dietenhoefer, 188 Mo. 145; Meyer v. Mining Co., 192 Mo. 163, l. c. 183; Nevitt v. School, 79 Mo.App. 203; Taussig v. Railroad, 186 Mo. 269; Youree v. Ins. Co., 180 Mo. 153; Trust Co. v. Railroad, 195 Mo. 689; Bente v. Typewriter Co., 116 Mo.App. 80; Brassfield v. Railroad, 109 Mo.App. 710; Holtscheider v. Railroad, 107 Mo.App. 381; Vickery v. O. K. C. & E., 93 Mo.App. 4; Horn v. Railroad, 88 Mo.App. 469, 477.
J. G. Trimble and Hall & Hall for respondent.
(1) It was the duty of appellant to serve and make a true return of the summons issued and delivered to him as sheriff to serve in the case of Brassfield v. The Relator Company, and he is liable to relator in damages for making a false return. R. S. 1899, secs. 995, 996, 10046; 25 Am. and Eng. Ency, of Law (2 Ed.), p. 680; Astor v. Kesler, 61 N. J. L. 75, 38 A. 819; Hunter v. Robeson, 95 Tenn. 124, 31 S.W. 1010; Martin v. Barney, 20 Ala. 369; Duncan v. Webb, 7 Ga. 187; Commonwealth v. Brooker, 36 Ky. 441; Whittaker v. Summers, 26 Mass. ___; 9 Pick. 308; State ex rel. v. Finn, 13 Mo.App. 285; State ex rel. v. Harrington, 28 Mo.App. 287; State ex rel. v. Case, 77 Mo. 252; State ex rel. v. Finn, 87 Mo. 314; Palmer v. Crone, 8 Mo. 619, 9 Mo. 269. (2) The switch house was not the business office of the relator. There was no service of summons upon relator, and the leaving of the copy of the petition and summons with Moss, the operator at the switch house, was no service upon the relator and did not bring it into court. 22 Am. and Eng. Ency. of Law (2 Ed.), 831; 19 Am. and Eng. Ency. of Pl. & Pr., 567; Palmer v. Kelleher, 111 Mass. 320; Bank v. Lawrence, 1 Peters (U.S.) 578. (4) The fact that the copy of the petition and summons was afterwards sent to and received by the relator's general attorney did not bind the relator, or relieve the appellant of his liability for a false return. Harness v. Cravens, 126 Mo. 251; Winningham v. Trueblood, 149 Mo. 586. (5) The only way the court could acquire jurisdiction over relator was to serve it with process in the manner prescribed by the statutes. Cloud v. Inhabitants of Pierce City, 86 Mo. 366; Winningham v. Trueblood, 149 Mo. 586.
--The relator, a railroad company, brought this suit against the sheriff of Grundy county to recover damages alleged to have been sustained in consequence of a false return of a summons issued in an action brought by F. M. Brassfield against relator. No appearance was made by relator in that case in the circuit court and default was taken by plaintiff and judgment afterwards was entered in his favor in the sum of $ 2,000. Relator then sued out a writ of error from this court and attacked the sufficiency of the summons to confer jurisdiction over its person on grounds which now do not concern us. We held them to be insufficient and affirmed the judgment. [Brassfield v. Railroad, 109 Mo.App. 710.] Relator then paid the judgment and brought this action alleging that the recital in the return made by defendant of the summons that service thereof was made on Harry Moss "the agent and in charge of the business office of the Quincy, Omaha & Kansas City Railroad Company . . . in the city of Trenton in the county of Grundy and State of Missouri" was false in this: that the said Moss was not the agent of relator nor was the place where he was served a business office within the meaning of the statute. A jury was waived, evidence was heard and judgment rendered in favor of relator from which this appeal is prosecuted by defendant.
Relator is a domestic corporation and, at the time of the institution of the Brassfield action, was operating a railroad through Grundy and other counties of the State. Its main line passed through the north side of the city of Trenton but its station where it transacted all of its business with the public was situated in the central part of the city and was connected with the main line by a spur track half a mile or more in length. All of the passenger and local freight trains were run to that station, but many through and extra freight trains passed through the city over the main track without being switched on to the spur track. All night trains were required to stop at the junction where relator maintained a night operator whose duty it was to receive and transmit telegraphic orders to trainmen for their guidance in the operation of trains. A small building called by the witnesses a "dog house" was situated at this point. It contained telegraph instruments for the use of the operator in receiving and sending messages and a few necessary articles of furniture for his use. No tickets were sold at this place nor was any business transacted there with patrons of the road. On a number of occasions, persons living in the neighborhood who desired to become passengers, knowing that trains were compelled to stop at the junction for orders, boarded them there, but no accommodations were provided for the use of passengers nor was there anything present indicative of an implied invitation to the public to use the place as a passenger station. Indeed, the building was not accessible from any public highway.
Defendant received the papers in the Brassfield suit late in the day, and at about eight o'clock in the evening, went to the city station for the purpose of serving them on the person in charge of that office. Finding it closed, he proceeded to the junction where he found the night operator, Harry Moss, in charge. He served Moss in the office with a copy of the petition and summons and made the return which is the subject of present controversy. Moss delivered the papers the next day to the agent of relator at the city station who, in turn, forwarded them to the legal department. There is evidence tending to show that Moss, though employed only as night operator at the junction office, divided his time between that office and the city station, pursuant to some arrangement made between him and the night operator at the latter station. When on duty at the city station, he sold tickets, checked baggage, received and forwarded express matter and, in fact, attended to all of the duties of station agent. But in our solution of the question of whether the service was properly made, we will ignore this private arrangement, since it does not clearly appear to have been sanctioned by relator, and will determine the character of the relation existing between Moss and his employer from the duties he was required to perform as night operator in charge of the junction office.
The service is to be approved or disapproved according to the construction which should be placed on section 995, Revised Statutes 1899, which in part, is as follows: "When any such summons shall be issued against any incorporated company, service on the president or other chief officer of such company, or in his absence, by leaving a copy thereof at any business office of said company with the person having charge thereof shall be deemed a sufficient service," etc.
It is immaterial that copies of the summons...
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