177 S.W.2d 447 | Mo. | 1944
Lead Opinion
This is an action to recover actual and punitive damages (said to be $35,000 and $50,000, respectively) for the allegedly wrongful and malicious destruction of the water works utility property and appropriation of the customers and the business of the Southwest Missouri Water Works Company, a corporation, by the defendant, Joplin Water Works Company, a corporation. (We continue the original designation of the litigants.) Oscar F. Webster, Susie Webster, and Hazel Mounts instituted the action as trustees for and on behalf of plaintiff corporation, a dissolved corporation. See Sec. 5036, R.S. 1939. After a jury had been empaneled, opening statements made, and the first witness on behalf of plaintiffs had been sworn, defendant objected to the introduction of any [449] evidence on the ground the petition failed to state a cause of action. This was sustained. Plaintiffs appealed. Subsequent to the submission *334
here a stipulation on behalf of the litigants was allowed. This stipulation brings to this court the occurrences before the court nisi at the time the objection was sustained "as a part of the record proper for all purposes on this appeal." Callier v. Chester, P. Ste. G. Ry. Co.,
Plaintiffs' petition alleged that plaintiffs since April,1936, have been the trustees of the Southwest Missouri Water Works Company; "that, until the acts of the defendant hereinafter mentioned, said Southwest Missouri Water Works Company was a public utility engaged in the distribution and selling of water and water service" in named subdivisions in Joplin, Missouri; that said Southwest Missouri Water Works Company purchased in 1935 said water utility property, franchise, etc., of Oscar F. Webster, who theretofore operated said public utility property. It is alleged that between December, 1935, and April, 1936, defendant committed various and sundry tortious acts to the destruction of said water utility property, its franchises and business. The Southwest Missouri Water Works Company received its charter May 3, 1935. Quoting: "After said property was destroyed by the defendant and after it ceased to be in use as utility property and after the claim arose against defendant for damages" as aforesaid "and after the dissolution of said corporation and while" O.F. Webster "was the president and chief stockholder of said dissolved corporation and one of its trustees, the said Webster personally arranged for and authorized the institution of the action against the defendant by such trustees for the benefit of said dissolved corporation" and ever since has participated in the prosecution of the same for the benefit of any and all persons interested therein. *335
The Southwest Missouri Water Works Company stock was issued to plaintiffs. O.F. Webster transferred all of said public utility property to said corporation for said stock on January 23, 1935. After said transfer, the officers of said corporation "including Webster as president and manager and chief stockholder, took charge of and operated and continued to operate said property as a public utility until it went out of business as a utility and as a result of the wrongful acts of said defendant . . ."
The city of Joplin in 1933 instituted proceedings before the Public Service Commission to require defendant to extend its lines into the territory served by O.F. Webster "so that fire protection" be afforded said territory, making O.F. Webster a party to said proceedings. Webster participated in said proceedings until the order of the Commission of August, 1935, was entered overruling the motion of the Southwest Missouri Water Works Company for a rehearing on orders made July 12, 1935, and July 22, 1935.
The Public Service Commission, on April 23, 1934, ordered Webster to file plans and specifications for the "enlargement or reconstruction and rehabilitation" of his water utility to comply with certain requirements and furnish fire protection. These plans and specifications were filed on July 23, 1934, in the name of the Southwest Missouri Water Works Company and showed "that the water works system was to become the Southwest Missouri Water Works Company, a corporation," and that said corporation had not received its charter. On February 13, 1935, said Commission ordered Webster to take whatever steps were necessary to "rehabilitate and [450] reconstruct" said water utility property and report within thirty days whether he had been able to finance and perfect arrangements therefor. This time was later extended for an additional sixty days. On May 3, 1935, the Southwest Missouri Water Works Company received its charter and had the same recorded in Jasper county, Missouri, May 9, 1935. The city council of Joplin on May 14, 1935, authorized the making of a contract with the Southwest Missouri Water Works Company for a certain number of fire hydrants in its territory, of which proceedings defendant knew and endeavored to have completed. On May 15, 1935, said Southwest Missouri Water Works Company was authorized by its stockholders to mortgage its property; but on May 27, 1935, said company reported that it had been unable to finance the rehabilitation of its water utility property as ordered by said Commission. A copy of this report was sent by the Commission to defendant on May 28, 1935. Thereafter, on July 12, 1935, the Public Service Commission, upon findings made, ordered defendant to extend its lines into the territory aforesaid and furnish water utility service to persons "not at this time furnished by O.F. Webster." Defendant on July 22, 1935, filed a motion for clarification and on said date said Commission made a supplemental order modifying *336 its original order as follows: "and to be in readiness to service and serve at any time any present customer of Oscar Webster who may at any future date elect to require of said Joplin Water Works Company a service connection and water service." On August 1, 1935, the Southwest Missouri Water Works Company filed objections to and a request for a rehearing of said order of modification, which (quoted) "request of the Southwest Missouri Water Works Company, otherwise known as O.F. Webster as owner of the water system" was denied on August 24, 1935. This order became final.
In December, 1935, the Southwest Missouri Water Works Company instituted a proceeding to enjoin defendant from entering its territory. Defendant filed a demurrer. The proceeding was dismissed after, according to the petition, plaintiffs' property had been destroyed.
Following defendant's objection to the introduction of any evidence, the petition was amended, evidently to crystallize the issue, by adding the following:
"Plaintiffs further allege that no application was made by the said O.F. Webster to the Public Service Commission of the State of Missouri for a written order or any order to transfer the property in question to the Southwest Missouri Water Works Company, and that no written order was granted, issued or entered by the Public Service Commission to O.F. Webster to transfer his said property to the Southwest Missouri Water Works Company; that no application was made to the Public Service Commission of Missouri for an order to issue the corporation stock in question and that no written order or order was granted by the Commission to the Southwest Missouri Water Works Company to issue said stock or to transfer said stock to said stockholders; that all of said property in question was used by Webster for many years as said utility property, and that in the conveyance by Webster to said corporation all of said property was conveyed to said Southwest Missouri Water Works Company as utility property and for utility purposes and was necessary and useful in the operation of said utility business by said Southwest Missouri Water Works Company, and further allege that it was necessary and useful to the performance of O.F. Webster's duties as a public utility at the time of said conveyance by Webster of the said franchise and said water works utility to said corporation, Southwest Missouri Water Works Company."
An added second paragraph alleged that the Southwest Missouri Water Works Company never held any franchise from Jasper county or certificate of public convenience and necessity from the Public Service Commission and that Webster's franchise and certificate of convenience and necessity were valid and existed at the time of the attempted transfer from Webster to said corporation. *337
Plaintiffs' petition charged and the court nisi took extra precaution before ruling upon defendant's objection in understanding plaintiffs' counsel admitted that all the property damaged by defendant was public utility property useful and necessary at said time in the conduct of the water utility business in the territory served and that no effort was being made to recover damages for the destruction of any other kind of property.
The petition (as well as oral statements made by counsel for plaintiffs before the court nisi) proceeded upon the theory[451] that ownership of the property at the time of its destruction by defendant was in the Southwest Missouri Water Works Company, the corporation; that is, that said corporation as a legal entity suffered the damages and the cause of action originally accrued to it as such owner. Plaintiffs' petition did not plead and the proceeding was not instituted and maintained on the theory a cause of action accrued to and existed in Oscar F. Webster as an individual, which cause of action was by him thereafter and subsequent to the destruction of the property as utility property assigned and transferred to said Southwest Missouri Water Works Company. Plaintiffs' point constructed upon such theory is disallowed.
[1] What was the effect of the alleged sale and transfer in 1935 of the water utility by Webster to the Southwest Missouri Water Works Company?
The term "water corporation," as used in the Public Service Commission law "includes every corporation . . . partnership and person . . . owning . . . any plant or property . . . distributing or selling for distribution, or selling or supplying for gain any water." Sec. 5578, Subsec. 21, R.S. 1939. Webster was within these provisions of that act.
Section 5651, R.S. 1939, provides: "1. No . . . water corporation shall hereafter sell, assign, lease, transfer, mortgage or otherwise dispose of or encumber the whole or any part of its franchise, works or system, necessary or useful in the performance of its duties to the public, nor by any means, direct or indirect, merge or consolidate such works or system, or franchises, or any part thereof, with any other corporation, person or public utility, without having first secured from the commission an order authorizing it so to do. Every such sale, assignment, lease, transfer, mortgage, disposition, encumbrance, merger or consolidation made other than in accordance with the order of the commission authorizing same shall be void. . . . Nothing in this subsection contained shall be construed to prevent the sale . . . by any . . . public utility . . . of property which is not necessary or useful in the performance of its duties to the public, and any sale of its property by such . . . public utility shall be conclusively presumed to have been of property which is not useful or necessary in the performance of its duties to the *338 public, as to any purchaser of such property in good faith for value."
We think the case turns on the provisions of Sec. 5651, but with respect to the issuance and sale of stocks et cetera, by public utilities, Sec. 5654, R.S. 1939, provides in part:
"2. All stock, and every bond, note or other evidence of indebtedness of a . . . water corporation issued without an order of the commission authorizing the same then in effect shall be void . . ." Consult Subsecs. 1 and 2.
The issue thus presented is whether by virtue of Sec. 5651, supra, the attempted transfer by Webster to the Southwest Missouri Water Works Company, the corporation, was void as to strangers to such transfer. We think so because the statute so provides and the Southwest Missouri Water Works Company was not a purchaser in good faith for value within the language of the statute or of Dearborn El. L. P. Co. v. Jones,
The Public Service Commission's order of February 13, 1935, authorizing Webster "to take whatever steps were necessary to rehabilitate and reconstruct the water works system" et cetera was not an order authorizing the reorganization of a "water corporation" under Sec. 5657, R.S. 1939, relating to "reorganizations"; but an order to rehabilitate and reconstruct a water works system under other applicable provisions of the Public Service Commission law. At any event, it was not an order absolving Webster from the consequences of violating positive legislative enactments. The Public Service Commission of the State of Missouri possesses no such authority.
Plaintiffs say the contention that the transfer of utility property is void can only be raised by the State or as provided by the Public Service Commission act, referring, in connection with the latter, to the provisions of the act with respect to hearings before the Public Service Commission. [452] Plaintiffs stress dictum in Webster Mfg. Co. v. Byrnes (1929),
Defendant is not questioning the corporate existence of the Southwest Missouri Water Works Company or its right to do business in this state. It questions its right to maintain this action on the theory its pleading shows it did not originally have and never has acquired a right of action, if any existed, against defendant. Plaintiffs' contention on this score is disallowed.
Plaintiffs make the point that the transfer was in good faith and for value and, in the circumstances, the term "void" is given the meaning of "voidable," citing Dearborn El. L. P. Co. v. Jones (C.C.A.),
[2] We find nothing in the record to sustain plaintiffs' contention that defendant is estopped to interpose this defense. The contention here is based upon allegations in the petition allegedly sufficient to work an estoppel as to Webster and the statement that defendant, a wrong-doer, cannot claim any greater rights in Webster and through Webster and on behalf of Webster than Webster could assert in himself. This might be well enough if Webster or a privy of his were defendant. The trouble is that plaintiffs, and not defendant, are claiming under, by, and through Webster. The Southwest Missouri Water Works Company was the grantee in Webster's transfer, had ample power to protect its interest, and its successors, plaintiffs not defendant, [453] succeed to the fruits of its action or nonaction in its dealings with Webster. The point is disallowed.
[3] On September 14, 1942, plaintiffs and Oscar F. Webster filed a motion, assertedly on account of allegations in defendant's answer, asking that said Webster individually be made a party plaintiff "to assure defendant" full protection against said Webster, individually. Plaintiffs now assert error in the overruling of said motion. It is apparent from defendant's answer, mentioned in said motion, as well as from what we have said, that there existed no community of interest between Webster as an individual, on the one hand, and plaintiffs as trustees, on the other, in the subject matter of the cause of action against defendant. The ultimate purpose of the motion if plaintiffs are to urge its overruling as error here was (not assurance to defendant but) to substitute said Webster as the real party in interest in lieu of the trustees named as party plaintiff. Generally a mistake as to the proper party plaintiff compelled an abandonment of the action and the institution of proceedings de novo at common law. 1 Chitty, Pleading (7th Eng. Ed.) *1, *69. Plaintiffs say the substitution was authorized under Sec. 971, R.S. 1939, reading:
"The court may, at any time before final judgment in furtherance of justice . . . amend any record, pleading, . . . or other proceedings, by adding or striking out the name of any party, or by correcting a mistake in the name of a party, . . . or when the amendment does not change substantially the claim or defense, by conforming the pleading or proceedng to the facts proved."
The statute speaks of "adding," not "substituting," the name of a party.
Statements in some cases indicate a doubt as to the scope of prior holdings permitting and refusing amendments adding or substituting *341
parties plaintiff. See Glover Son Comm. Co. v. Abilene Mill. Co.,
In Lilly v. Tobbein,
Russell v. Nelson,
Cases like Cytron v. St. Louis Transit Co. (Banc),
Under the Missouri cases, the instant motion to amend was properly overruled.
[4] Plaintiffs sought to file a reply containing several different pleas to defendant's answer. The trial court restricted the reply to a general denial. Plaintiffs claim error. They say the court erred in striking their plea of estoppel from the reply; in striking their allegations of good faith on the part of Webster and the Southwest Missouri Water Works Company, coupled with a plea of a mistake of fact; in striking their plea of assignment by Webster of whatever rights he might have in the cause of action to plaintiffs; and in striking their plea to the effect defendant was collaterally attacking the transfer by Webster to the Southwest Missouri Water Works Company. Our discussions and rulings hereinbefore sufficiently cover *343
such of these contentions as are not hereinafter mentioned. We dispose of the other asserted errors in as general language as presented for review. Our examination of the whole of the instant record fails to disclose actions by defendant estopping it from interposing the defense relied upon. With respect to Webster's assignment of any cause of action, it is sufficient to say that the petition failed to state a cause of action and that it was the function of the petition and not the function of the reply to state the cause of action. Baker v. Lamar (Mo.), 140 S.W. 31, 34[8]; Daniel v. Pryor (Mo.), 227 S.W. 102, 105[5]; Neal v. Twelfth Grand Ave. Bldg. Co.,
The judgment is affirmed. Westhues and Barrett, CC., concur.
Addendum
The foregoing opinion by BOHLING, C., is adopted as the opinion of the court. All the judges concur.