Williams v. The Metropolitan Street-Railway Company

• Decision Date: 12 December 1903
• Docket Number: 13,224
• Citation: 74 P. 600,68 Kan. 17
• Parties: SALLIE WILLIAMS v. THE METROPOLITAN STREET-RAILWAY COMPANY
• Court: Kansas Supreme Court

74 P. 600

68 Kan. 17

SALLIE WILLIAMS v. THE METROPOLITAN STREET-RAILWAY COMPANY

No. 13,224

Supreme Court of Kansas

December 12, 1903

Decided July, 1903.

Error from Wyandotte court of common pleas; WILLIAM G. HOLT, judge.

STATEMENT.

The following is the agreed statement of facts on which this cause was tried in the court below:

"2d. It is agreed that the plaintiff is a widow of the age of 45 years, and that on the 15th day of July, 1894, the plaintiff was 38 years of age, and was of sound mind, and ever since has been of sound mind, and under no legal disability.

"3d. That plaintiff, on the 15th day of July, 1894, was, ever since has been and now is a resident and citizen of Wyandotte county, Kansas.

"4th. That the accident, cause of action and injury for which this action is brought occurred and accrued in the county of Wyandotte and state of Kansas on the 15th day of July, 1894.

"5th. That the injury and cause of action for which this action is brought is one in tort for personal injuries received by the plaintiff on the 15th day of July, 1894, by reason of the negligent starting of a passenger-car of the defendant by its employees, while the plaintiff, who was a passenger on such car, was alighting therefrom, whereby the plaintiff was thrown down and injured.

"6th. It is further agreed that the plaintiff by being thrown down and injured, as stated in paragraph 5 hereof, was damaged in the sum of one hundred and fifty dollars ($ 150).

"7th. It is further agreed that the defendant is and was at all times herein mentioned a corporation, organized under the laws of the state of Missouri, and has its principal office in Jackson county, state of Missouri, where the board of directors meet and the president, vice-president, secretary and treasurer, chairman of the board of directors and general superintendent reside and have their offices; that all employees, both for the line in Kansas and Missouri, are hired in Missouri, and all supplies are purchased and all contracts therefor are made, and all funds of the company are kept there.

"8th. That the defendant was, on the 15th day of July, 1894, ever since has been, and now is, a street-railway company, engaged in carrying passengers from Kansas City, in the state of Missouri, into and through Kansas City, Argentine, and Rosedale, in Wyandotte county, Kansas, and from Kansas City Argentine, and Rosedale, in Wyandotte county, Kansas, to Kansas City, Jackson county, Missouri.

"9th. That a large percentage, to wit, about 33 1/3 per cent., of all the business of said defendant company was, on the 15th day of July, 1894, ever since has been, and now is transacted in the county of Wyandotte and state of Kansas.

"10th. That on the 15th day of July, 1894, and for a long time prior thereto, ever since said date, and now, the defendant has owned, and every day since said 15th day of July, 1894, has regularly operated, its cars over fifteen miles of double-track street-railway upon and along the streets of Kansas City, Argentine, and Rosedale, in Wyandotte county Kansas.

"11th. That the defendant's railway-tracks so laid in the streets of Kansas City, Kan., Argentine, and Rosedale, and the operation of its cars thereon, are authorized by and pursuant to contracts and stipulation contained in ordinances and franchises granted to said defendant by the cities of Kansas City, Argentine, and Rosedale, all cities of Wyandotte county, Kansas.

"12th. That on the 15th day of July, 1894, and at all times since said date, the defendant has owned, occupied and maintained car barns and offices at the northeast corner of Tenth street and Minnesota avenue and at the northeast corner of Eleventh street and Osage avenue, in Kansas City, Wyandotte county, Kansas.

"13th. That upon the 15th day of July, 1894, and constantly ever since said date, the defendant has had in charge of its car barns and offices mentioned in paragraph 12 hereof a division superintendent and assistant division superintendent, both day and night.

"14th. That the division superintendent and the assistant division superintendant, mentioned in paragraph 13 hereof, have at all times mentioned herein had charge of all property of the defendant in Wyandotte county, and have had offices in said car barns, where the employees engaged in the operation of the defendants company's cars on the divisions of which they are division superintendents report each day to said division superintendent, and by him are directed in the management and operation of said cars in Kansas, and in which also has been and is transacted by said division superintendents all business transacted in Wyandotte county, Kansas, relative to the management and operation of said railway and maintenance of said company's cars and lines of railway in said county and state, subject to the general supervision and control of their superior officers in Kansas City, Mo.

"15th. That this action was commenced in said court on the 1st day of June, 1901, and service in this cause was made upon the assistant division superintendent in charge of the station and office of the defendant at Tenth street and Minnesota avenue, mentioned in paragraph 12 hereof."

Judgment was entered in favor of the defendant. Plaintiff in error has come to this court by proceedings in error.

Judgment reversed and the cause remanded for a new trial.

SYLLABUS

SYLLABUS BY THE COURT.

FOREIGN CORPORATIONS--Limitation of Actions. A foreign corporation is "out of the state," within the meaning of section 21 of the code (Gen. Stat. 1901, § 4449), and for that reason cannot avail itself of the statute of limitations of this state.

Getty, Hutchings & Dean, for plaintiff in error.

Miller, Buchan & Morris, for defendant in error.

SMITH J. All the Justices concurring.

OPINION

SMITH, J.:

The sole question involved is whether a foreign corporation transacting business in this state can plead the statute of limitations in bar of a cause of action originating here in favor of a resident plaintiff. The statutory language applicable to the case is as follows:

"If when a cause of action accrues against a person he be out of the state, . . . the period limited for the commencement of the action shall not begin to run until he comes into the state, . . . and if after the cause of action accrues he depart from the state, . . . the time of his absence . . . shall not be computed as any part of the period within which the action must be brought." (Gen. Stat. 1901, § 4449.)

By the thirteenth paragraph of section 7342 it is

provided that the word "person" may be extended to corporate bodies.

It is the contention of counsel for defendant in error that because, at the time of the injury to plaintiff below, the street-railway company was doing business in Kansas, and had a superintendent here on whom process could be served, and so continued to transact business and maintain an office in this state until the action was begun, for the purpose of invoking the bar of the statute of limitations it cannot be held that the corporation was out of the state during said time.

In Mary E. Lane, Adm'r, v. The National Bank of the Metropolis, 6 Kan. 74, it was held that the personal absence of the debtor from the state, even if he retained a residence here at which process against him might be served, was sufficient to take the case out of the statute. This case has been followed repeatedly. (Hoggett v. Emerson, 8 Kan. 262; Morrell v. Ingle, 23 id. 32; Conlon v. Lanphear, 37 id. 431, 15 P. 600; Ament v. Lowenthall, 52 id. 706, 35 P. 804; Coale v. Campbell, 58 id. 480, 484, 49 P. 604; Investment Co. v. Bergthold, 60 id. 813, 58 P. 469.)

In the early case of Bank of Augusta v. Earle, 38 U.S. 519, 13 Pet. 519, 588, 10 L.Ed. 274, Chief Justice Taney said:

"It is very true that a corporation can have no legal existence out of the boundaries of the sovereignty by which it is created. It exists only in contemplation of law, and by force of the law; and where that law ceases to operate, and is no longer obligatory, the corporation can have no existence. It must dwell in the place of its creation, and cannot migrate to another sovereignty."

Counsel for the street-railway company are in error when they assert that this case has been overruled by St. Clair v. Cox, 106 U.S. 350, 1 S.Ct. 354, 27 L.Ed. 222. The last decision went no further than to hold that an Illinois corporation could not be subject to a judgment in personam in Michigan unless at the time of service of summons it was doing business in the latter state.

In Shaw v. Quincy Mining Company, 145 U.S. 444, 450, 12 S.Ct. 935, 937, 36 L.Ed. 768, Mr. Justice Gray, after quoting the above language of Chief Justice Taney, said:

"This statement has been often reaffirmed by this court, with some change of phrase, but always retaining the idea that the legal existence, the home, the domicile, the habitat, the residence, the citizenship of the corporation can only be in the state by which it was created, although it may do business in other states whose laws permit it."

In the same opinion the words of Mr. Justice Curtis in Lafayette Ins. Co. v. French, 59 U.S. 404, 18 HOW 404, 15 L.Ed. 451, are approved. He said:

"This corporation, existing only by virtue of a law of Indiana, cannot be deemed to pass personally beyond the limits of that state." (See 1 Clark & Mar. Priv. Corp. 356.)

In Land Grant Railway v. Comm'rs of Coffey County, 6 Kan. 245, 253, Mr. Justice Valentine, speaking for the court, said:

"A corporation, in order to have any legal or valid existence, must have a home, a domicile, a principal place of doing business, within the boundaries of the state which creates it. It may send agents into other states to do business, but...