97 Kan. 275 | Kan. | 1916
The opinion of the court was delivered by
Ed Reynolds sued the New Century Zinc and Lead Mining Company, a corporation organized under the laws of Delaware, to recover damages for personal injuries. In his petition he described the company as “The New Century Mining Company,” and alleged that it was a Kansas corporation. ' The summons contained the same misnomer, but was served personally upon the president of the company. The Maryland Casualty Company had issued a policy to the New Century Zinc and Lead Mining Company indemnifying it from loss by liability for injuries to its employees, and agreeing to defend at its own cost all suits brought by employees against the company. The summons and papers in the Reynolds case were sent to the attorneys for the casualty company at the request of the latter company, and they filed an answer for “The
We are unable to discover any reason why the judgment should not be affirmed or any way by which the casualty company can escape liability on its policy of indemnity. The judgment in the Reynolds case was enforceable against the New Century Zinc and Lead Mining Company notwithstanding the company was sued in the wrong name. The summons was served upon its president, an answer was filed and the action contested on its merits as though there had been no misnomer. If the company objected to being sued in the wrong name it should have filed a plea in abatement or called the court’s attention to the mistake in some way. Failing to do so or to disclose its true name, it waived the misnomer. (School District v. Griner, 8 Kan. 224; Clark v. Clark, 19 Kan.
Although when the Reynolds judgment was affirmed the American Surety Company became liable on the supersedeas bond, its liability was that of a surety, and the mining company, the judgment debtor, was primarily liable. Officers of the surety company and of the- mining company testified to the fact that the money to pay the judgment was obtained by a loan from the surety company, and that the policy was assigned and transferred as security for the loan. It made no difference whether any note was given or any charge or account made.
There was no ground upon which to sustain the demurrer to the evidence. It is difficult to see how the trial court could have erred in charging the jury that the New-Century Zinc and Lead Mining Company was the same thing as the New Century Mining Company. For all purposes of this action they are the same, or, putting it another way, the mining company’s legal name is as stated in its charter, but it is sometimes known by the name in which it was sued and the judgment in Reynolds’ favor rendered; because the fact remains that the suit was defended through the courts just as though the company had been sued in its charter name.
The instructions were quite favorable to the defendant. Some of the special questions submitted by the defendant might well have been refused, but the jury seem to have
The judgment is affirmed.