81 P.2d 36 | Kan. | 1938
The opinion of the court was delivered by
This was an action for damages for personal injuries. The jury answered special questions and returned a general verdict for plaintiff and against the Broadview Hotel Company for $3,000, from which the hotel company has appealed. It also returned a general verdict against the plaintiff and in favor of the Skelly Oil Company, from which plaintiff has appealed.
The action was brought in Atchison county, where service of summons was had upon an agent of the Skelly Oil Company and a summons for the Broadview Hotel Company was sent to the sheriff
As to the Skelly Oil Company, plaintiff alleged Wilson was its agent “in the matter of furnishing service to automobiles and vending gasoline, oil and automobile supplies.” This allegation of agency was denied under oath. The evidence disclosed that Wilson rented the building, with its equipment, including gasoline service pumps, from R. G. Kirkwood, who owned the building; that he purchased outright, for resale, gas, oil and greases from various oil companies; that at the time in question he was so purchasing gasoline from the Skelly Oil Company and oils and greases from that company and several others. There was nothing to show any agency relation between Wilson and the Skelly Oil Company more than there would be between any retailer of merchandise and the wholesaler or producer from whom he purchased for cash. As tending to show agency, counsel for plaintiff stressed the fact that Wilson honored his credit card with the Skelly Oil Company; that in due time he received from the Skelly Oil Company, from its Kansas City office, a statement of his account, which included the gasoline and grease sold him by Wilson. The point is not well taken. The evidence is that Wilson honored such credit cards of eleven oil companies, and on a placard in his office that fact and the names of the oil companies were stated, and that Wilson simply turned this item in as so much cash on his purchase of the products of the Skelly Oil Company. The jury specifically found that Wilson was not the agent of the Skelly Oil Company. We think no other finding could have been made under the evidence. The trial court approved it. Plaintiff complains that the court refused to give his requested instruction to the effect that the agency of Wilson for the Skelly Oil Company might be inferred from the facts and circumstances and did not have to be established by direct proof. There was no error in the court’s ruling on this point. Here all the facts and circumstances tended to disprove such an agency.
While there is no cross-appeal on behalf of the Skelly Oil Company, its counsel point out that in fact the petition in this case did not state a cause of action against the Skelly Oil Company. At the most, the liability of the Skelly Oil Company as disclosed by the petition was that Wilson.was its agent for the sale of gas, oils
The Broadview Hotel Company first filed its special appearance and motion to quash the service of summons upon it on the ground that it is a corporation, with its principal, place of business in Sedgwick county; that it had no agent in Atchison county; that Wilson was not in fact the agent of the Skelly Oil Company, and that plaintiff's petition stated no cause of action against the Skelly Oil Company, and hence there was no basis for the issue of a service of summons for the defendant to be served in Sedgwick county. At the hearing of this motion affidavits tending to substantiate its allegations were presented, and the motion overruled.
In sending this summons to Sedgwick county for service apparently plaintiff was attempting to act under G. S. 1935, 60-509 and 60-2502. These sections apply to actions in tort as well as actions on contract. (Reiff v. Tressler, 86 Kan. 273, 276, 120 Pac. 360.) It is essential, however, that the action be bona fide against the resident of the county in which it is brought (King v. Ingels, 121 Kan. 790, 250 Pac. 306), for the general rule is that actions in personam can be brought only in the county in which defendant resides or may be summoned. (Heston v. Finley, 118 Kan. 717, 720, 236 Pac. 841; State, ex rel., v. Miley, 120 Kan. 321, 326, 243 Pac. 262; King v. Ingels, supra.) At the suggestion of counsel for plaintiff, acquiesced in by counsel for the hotel company, the question of the good faith of plaintiff in bringing this action against the hotel company in Atchison county was submitted to the court as a question of law rather than to the jury as a question of fact, although the fact this was done may be of no special importance in this case.
In the briefs and arguments quite a little is said about the good faith of plaintiff in this regard, and the hotel company offered some evidence on that question, which is stressed by its counsel. But as we view the record it is not necessary to impugn the motives of plaintiff or his counsel. As previously indicated, the Skelly Oil Company contends the petition never did state a causé of action against it, and the hotel company in its motion to quash.the summons made the same contention. Examining the petition, we think
“It is elementary law that a plaintiff cannot ordinarily get an unwilling adversary into court without yalid personal service upon him in the jurisdiction in which the action is begun, nor can he accomplish that end by joining as defendant some mere nominal party upon whom personal service can be had in that jurisdiction when the plaintiff has in fact no bona fide cause of action against the defendant so nominally joined. (Brenner v. Egley, 23 Kan. 123; Rullman v. Hulse, 32 Kan. 598, 5 Pac. 176; 33 Kan. 670, 7 Pac. 210; Hawkins v. Brown, 78 Kan. 284, 97 Pac. 479, syl. ¶ 4; Hembrow v. Winsor, 94 Kan. 1, 145 Pac. 837.)” (p. 792.)
The result is, the special appearance and motion to quash the summons filed by the Broadview Hotel Company should have been sustained. Since the hotel company had no right to appeal from the order of the court overruling this motion it did not waive the question by answering and going to trial. (Oil Co. v. Beutner, 101 Kan. 505, 167 Pac. 1061; Clingman v. Hill, 104 Kan. 145, 178 Pac. 243; Maynard v. Bank, 105 Kan. 259, 182 Pac. 542.)
The Broadview Hotel Company contends there was error in the trial of the case on its merits. We find it unnecessary to go into
The result is, the judgment of the trial court as it pertains to the Skelly Oil Company should be affirmed, and as it pertains to the Broadview Hotel Company should be reversed with directions to sustain its motion to quash the summons and to dismiss the action as to it. It is so ordered.