follows: "Plaintiff further states that she | required to pay the sum of $2 additional boarded defendant's train at Mansfield, Mo., railway fare, in order to reach her destinaon July 27, 1908, and was carried to Spring- tion; and she prays judgment for the sum field, Mo., where, under the guidance of de- of $2 as compensatory damages and for the fendant's servants, she alighted from said sum of $1,997 as punitive damages. train and took passage upon another of defendant's trains; that she was unacquainted with the route over which she was to travel; that she was relying wholly upon the employés of defendant to direct her how to travel in accordance with her ticket; that while the train upon which she was passenger was approaching Sapulpa, Okl., she made repeated efforts to ascertain from defendant's servants information regarding the route and as to change of cars, if any, but that said servants disregarded her efforts and ever failed and refused to instruct her as to the proper course; that upon arrival at Sapulpa said servants immediately left the trains without instructing her as to any change to be made, and she had no further opportunity of inquiry, and relying upon her said ticket, she stayed aboard said train, believing that it would take her to her destination, while, in fact, because of gross, willful, and wanton negligence of said defendant and its servants in not directing her how to travel, and in not informing her that she would have to change trains, when requested as aforesaid, unknowingly and without fault on her part, remained aboard a train of defendant's other than the one which would deliver her to her destination; and that she was carried to another destination other than the one to which her ticket entitled her to passage, in a manner and under the cir cumstances hereinafter set forth." She further alleges that after the train departed from Sapulpa the conductor or auditor in charge of said train, whose duty it was to take notice of the provisions of her ticket, negligently, willfully, and wantonly failed and refused to notify her that she was aboard the wrong train; that she was carried to Oklahoma City, the terminus of defendant's line of road, and there discharged about 1 o'clock p. m. on July 28th; that because of her inability to continue her journey on the line of defendant company, she was compelled to remain at Oklahoma City until 1:30 a. m. July 29th, and then continue her journey to her destination over the Atchison, Topeka & Santa Fé Railway, which was the quickest and best route available to her; that on account of the lack of money, she was compelled while delayed in Oklahoma City to accept the hospitality of strangers and greatly humiliated thereby; that she was greatly worried because of the delay, and because of the fact that she was being kept away from her mother's bedside; that she suffered mental pain and anguish and physical exhaustion; that she was unprepared to hear of her mother's death on her arrival; that a physician's services were required; that because of aforesaid willful and wanton negligence of defendant, she was Defendant's demurrer is directed first against plaintiff's entire petition, upon the ground that it fails to state a cause of action against defendant; and, secondly, is directed especially against that portion of the petition whereby plaintiff seeks to recover punitive damages. Counsel for defendant, in an able and exhaustive brief, insist that the petition is defective in stating a cause of action, because it is not alleged that the train on which she rode was not stopped at Sapulpa sufficient length of time to enable her to change, and it is not alleged that sufficient notice of the arrival of the train at Sapulpa was not given by the servants of defendant to enable her to make the necessary change; and we presume that the trial court regarded the absence of these allegations a fatal defect in the cause of action attempted to be alleged by plaintiff. [1] It is well-settled law that a railway company is not required to give a passenger special notice of the arrival of a train at the passenger's destination, and that it has dis charged its duty if its servants in charge of case is not that she did not have notice of the Ry. Co. v. McCollough, 18 Tex. Civ. App. 534, | arate consideration, the record does not dis45 S. W. 324. close upon what ground it was sustained. Counsel for defendant in error suggests in his brief only two grounds, and we shall notice those only. He first contends that exemplary damages are not recoverable by plaintiff, because her petition fails to show her entitled to recover actual damages. It al damages, there can be no recovery of exemplary damages (Adams v. City of Salina, 58 Kan. 246, 48 Pac. 918; Cole v. Gray, 70 Kan. 705, 79 Pac. 654; Boardman v. Grocery Co., 105 Iowa, 445, 75 N. W. 343); but it follows, from the conclusion we have already reached, that this reason for sustaining the special demurrer does not exist, for plaintiff under the allegations made is entitled to recover actual damages. Counsel for defendant quotes from Cady v. Case, 45 Kan. 733, 26 Pac. 448, as follows: “Our own decisions for a long time have established that whenever elements of fraud, malice, gross negligence, or oppression may be in the controversy, the law allows the jury to give what is called exemplary or vindictive damages. Where the testimony discloses gross and wanton negligence on the part of the defendant, the jury may award exemplary damages, and an instruction to that effect is not error." But how is a passenger to obtain this necessary information? Evidently from the servants of the railway in charge of the train upon which the passenger rides. The method by which public travel upon railways for long distances is effected renders it necessary that the railway companies shall, through is well settled that, in the absence of actutheir agents and servants, upon passenger trains instruct the passengers thereon upon inquiry how they may reach their destination. In the transfer to connecting carriers, in the change of trains upon the same line of railway, in the transfer of coaches from the main lines to branch lines, and vice versa, and in the discontinuance of trains at the end of divisions and in the addition of new sections, no one, often, other than the persons in charge of the train upon which a passenger rides, to whom the passenger has access, is able to furnish the information required by the passenger to enable him to know where and when he must make change of trains in order to reach his destination. It would be practically impossible for the agent of any station of a railway company to know at all times all the details relative to transfer and change of trains that must take place in a single journey of long distance upon a single system of railway, much less of the many changes that may and do take place in journeys over many different systems or lines. It is a matter of common knowledge and experience that the traveling public do resort to the employés in charge of the respective trains upon which they ride for information relative to all necessary changes; and that such information is uniformly fur-yond his destination by fault of the carrier nished by such employés. In the instant case, in not stopping its train or in failing to give when the servants of the company in charge notice of the train's approach to the station of the train were requested by plaintiff to of the passenger's destination, is applicable furnish her with information as to where it to this case; and that, while in the absence would be necessary for her to change trains, of recklessness, willfulness, wanton or gross it became their duty to inform her; and negligence the railway company is not liatheir failure to do so constitutes, in our opin-ble to the passenger for exemplary damages, ion, such negligence as renders the company if, on the other hand, there is willful or reckliable in damages for all injury proximately less negligence, recovery of such damages resulting therefrom. Necessary expenses, in- may be had. V. & M. R. R. Co. v. Scanlan, curred by plaintiff in reaching her destination 63 Miss. 413; Birmingham Railway, Light & after having been carried negligently beyond Power Co. v. Nolan, 134 Ala. 329, 32 South. the junction point where she should have 715; Chicago, St. L. & New Orleans Ry. Co. changed cars, but failed to do so on account v. Scurr, 59 Miss. 456, 42 Am. Rep. 373; of the refusal of defendant to inform her of Dorrah v. Ill. Cent. Ry. Co., 65 Miss. 14, 3 the place of change, a reasonable sum for South. 36, 7 Am. St. Rep. 629; Memphis & loss of time and a fair compensation for the Cincinnati Packet Co. v. Nagel, 97 Ky. 9, inconveniences experienced by her are all 29 S. W. 743; Harlan v. Wabash Ry. Co., proper elements of damages for which she 117 Mo. App. 537, 94 S. W. 737; Samuels v. can recover. Dalton et al. v. K. C., Ft. Scott Richmond & Danville Ry. Co., 35 S. C. 493, & M. R. Co., 78 Kan. 232, 96 Pac. 475, 17 L. 14 S. E. 943, 28 Am. St. Rep. 883; Louisville R. A. (N. S.) 1226, 16 Ann. Cas. 185; Trigg & Nashville Ry. Co. v. Ballard, 88 Ky. 159, v. St. L., K. C. & Northern Ry. Co., 74 Mo. 10 S. W. 429, 2 L. R. A. 694. 147, 41 Am. Rep. 305. [2] It is not specified in defendant's special demurrer to plaintiff's petition in what respects it fails to state facts entitling plaintiff to recover exemplary damages; and if He also concedes in his brief that the foregoing excerpt states the law, but counsel insists that the facts alleged in the petition do not invoke this rule. We think the same principle that governs the right of a passenger to recover exemplary damages in cases where a passenger has been carried be The action of defendant complained of in the case at bar is not one of simple omission to perform a duty; the negligent act does not consist of misdirecting plaintiff or wrongfully informing her, but of intentional have been sustained. The judgment of the trial court is reversed and the cause remanded. Shartel, Keaton & Wells, for plaintiff in error. J. B. Dudley and John H. Mosier, for defendant in error. Ar tion under circumstances that made it the duty of the carrier and its servants to give her. If the allegations of the petition be true --and for the purpose of the demurrer they are assumed to be-approaching the very TURNER, C. J. On March 26, 1907, Mexstation where it was necessary for plaintiff ican Agricultural Land Company, defendto depart from the train to make a change ant in error, sued Western Union Telegraph of cars in order to reach her destination over Company in the district court of Cleveland defendant's line of railway on which she had county. After alleging itself to be a domesbought a ticket, plaintiff not only once, but tic corporation and defendant to be duly repeatedly, made an effort to ascertain from incorporated under the laws of New York and a common carrier of telegraphic mesdefendant's servants such information regarding her route as would enable her to sages for hire, in the first count plaintiff know where to change cars; but her efforts alleged, in substance: That on September were disregarded and the necessary instruc-11, 1906, one Morgan, plaintiff's secretary, tion refused her. This willful negligence delivered to defendant, at Norman, for on the part of defendant's employés resulted transmission and delivery a telegram, which in her being carried off her route, delayed read: "P. G. Manly, Mt. Carmel, Ill. in her journey, and ultimately landed at range attend directors meeting Peoria next Friday morning without fail. R. J. Mora point on defendant's road where she was compelled to take passage over another rail- gan"-which defendant agreed to promptway company's line in order to reach the end ly and correctly transmit and deliver, in of her journey. Upon the grounds urged in consideration of a fee, which he then paid. the briefs, the special demurrer should not That said message when delivered to Manly read, "Arrange attend directors meeting here next Friday morning without fail." That a meeting of plaintiff's board of directors had been called for Friday following the date of said message at Peoria, Ill., and, being a member of said board, it was necessary that said Manly be present. That said message was sent to notify him thereof, and to procure his attendance thereon, all of which was known to defendant at the time it received such message for transmission. That by reason of such error Manly went to Norman, arriving there Friday morning September 14th. That, had said message been correctly transmitted, he would have gone from Mt. Carmel, Ill., direct to Peoria. That other officers and directors of plaintiff were present at Peoria Friday morning to attend said directors' meeting, but, by reason of the absence of Manly, were unable to proceed, and were compelled to adjourn from day to day until he arrived, by reason of which plaintiff was compelled to and did pay Manly the sum of $25 a day and expenses from the time he left Mt. Carmel until his return thereto, and ficers and directors salary or per diem and was compelled to and did pay its other ofexpenses during the time said meeting was delayed in all the sum of $315.68, an itemized statement of which was filed as an exhibit. TURNER, C. J., and KANE and DUNN, JJ., concur. WILLIAMS, J., not participat ing. (31 Okl. 528) WESTERN UNION TELEGRAPH CO. v. (Syllabus by the Court.) -- ORGANIZATION 1. CORPORATIONS ($ 29*) [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 77-79, 2504; Dec. Dig. § 29.*] 2. CORPORATIONS (§ 34*)-CORPORATE EXISTENCE-ESTOPPEL TO DENY. A suit in damages by plaintiff as a domestic corporation against defendant as a common carrier of telegraphic messages for hire for failure to correctly transmit one message, and for failure to promptly deliver another. Held, that defendant is not estopped to deny the corporate existence of plaintiff at the date of the contract. [Ed. Note. For other cases, see Corporations, Cent. Dig. §§ 81-96; Dec. Dig. § 34.*] Error from District Court, Cleveland County; R. McMillan, Judge. Action by the Mexican Agricultural Land Company against the Western Union Telegraph Company. Judgment for plaintiff, and defendant brings error. Reversed. The second count substantially states: That on September 16, 1906, one Hayes, acting for plaintiff, delivered to defendant at Norman another message for transmission which read: "J. H. Mosier, Great Northern Hotel, Chicago, Ill. Ramsey declines loan. Shall I come regardless? Answer quick. Hayes." That said message was received by defendant at 3 o'clock a. m., whereupon defendant agreed to transmit the same correctly and without delay. That the same For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes was negligently withheld without transmis- plea of nul tiel corporation. If plaintiff was sion until after 4 o'clock p. m., and was not not organized for a purpose authorized by delivered to the addressee until 5:58 p. m. law, there was no law in existence authorThat R. G. Morgan, plaintiff's secretary, and izing its organization, and it is operating in J. H. Mosier, his counsel, were in Chicago fraud of the law. And, there being no law on business of plaintiff waiting to hear from authorizing it to exist as a de jure corpoHayes, and by reason of said delay both ration, plaintiff is not even a de facto corwere compelled to remain there one day poration, for the reason that a de facto corlonger than they would have done had the poration cannot exist where there is no law message been promptly transmitted and de-authorizing a de jure corporation. The statlivered. That by reason thereof plaintiff ute simply means that the existence of a was compelled to and did pay Morgan and Mosier $15 each for their time and expenses, or in all $42, an itemized statement of which is made an exhibit. The prayer was for judgment on the first count for $315.68 and interest and for $92, with interest on the second count. The first paragraph of the answer denied that the plaintiff was a corporation de jure or de facto, and alleged that its pretended organization was in fraud of the incorporation laws of Oklahoma, in that it was not organized for any purpose authorized by such laws, but was pretended to be organized for purposes not authorized by the laws of Oklahoma, and without any intention, or expectation, on the part of the incorporators of conducting any business for which a corporation could legally be organized under such laws, and that such corporation had never conducted any business for the carrying on of which a corporation could be organized under the laws of Oklahoma. The answer is so verified as to put in issue allegations of the existence of the plaintiff corporation. Snyder's Stat. of Okl. § 5648. corporation while it is acting under its de facto organization cannot be assailed collaterally. Such is not here attempted. The contention is, in effect, that, as the answer alleges and the demurrer thereto confesses that no statute exists authorizing the organization of plaintiff, it follows that plaintiff is merely a pretended corporation, and not even a de facto corporation, but in legal effect a copartnership, and cannot bring suit We concur, and, as in as à corporation. Johnson v. Hanover, etc., National Bank, etc., 88 Ala. 271, 6 South. 909, the plea "that the Hanover National Bank of N. Y., a party plaintiff in this action, is not a corporation duly authorized by law to maintain this suit," was held to contain all that was essential to a plea of nul tiel corporation and cast on plaintiff the burden of proving its we will hold that corporate existence, so the allegations of this answer, in effect, that plaintiff's organization was a pretended one in fraud of the laws of the state, in that it was not organized for any purpose authorized by such laws, did not collaterally attack the existence of plaintiff operating as a de facto corporation within the contemplation [1] The court sustained a demurrer "to of said statute, but contained all the esall that part of said count which sets up sentials of such plea and that the court and alleges a want of legal corporate exist- erred in sustaining a demurrer thereto. Inence of the plaintiff company," to which diana Bond Company v. Ogle et al., 22 Ind. defendant excepted and stood on his an- App. 593, 54 N. E. 407, 72 Am. St. Rep. 326, There was trial to a jury and judg-was a suit by the company wherein it averred ment for plaintiff, and defendant brings the itself to be the holder of certain street imcase here. In sustaining the demurrer, the provement bonds, and sought to enforce the court, in effect, held that defendant had no statutory lien against appellee's real estate right to attack plaintiff's corporate existence for an assessment for street improvement. by reason of Snyder's Statutes of Oklahoma, Its corporate existence was challenged by § 1256, which reads: "The due incorpora- answer in abatement in two paragraphs, tion of any company, claiming in good faith wherein it was alleged that said company to be a corporation under this chapter, and purported to be a corporation organized doing business as such, or its right to exer- under and pursuant to the laws of Indiana cise corporate powers, shall not be inquired and was assuming to act as a corporation, into collaterally, in any private suit to but that it was not an incorporated comwhich such de facto corporation may be a pany and had no rights as such for certain party; but such inquiry may be had, and reasons set forth, one of which appeared action brought, at the suit of the state, in to be that it was organized to buy and sell the manner prescribed in the Code of Civil bonds under a statute providing for the Procedure." But the court in so doing mis- creation of corporations for the purpose of construed the statute. If it is true as al- buying and selling merchandise and conductleged in the answer, in effect, that there is ing mercantile operations. A demurrer to no statute authorizing the organization of the several paragraphs being overruled, this this corporation, then plaintiff is a pretend- was held on appeal to be no error. ed corporation, and in a suit by such corporation its right to exist may be questioned in this way, provided the answer states swer. [2] The court said: "It is further argued that as appellant has assumed, under color of law and claim of right, to exercise cor All (31 Okl. 533) et al. v. MERGENTHALER (Supreme Court of Oklahoma. March 12, (Syllabus by the Court.) APPEAL AND ERROR (§ 644*) DISMISSAL CASE-MADE-SERVICE ON ADVERSE PARTY. Where a reversal is sought upon the easemade, it or a copy thereof must be served upon each adverse party or his attorney. A failure so to do upon a party to a joint judgment who of defeats the jurisdiction of the appellate court will necessarily be affected by a reversal thereand prevents a review of the judgment, and that, too, although he subsequently appears in this court, and waives service of the case-made. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 2795-2798; Dec. Dig. § 644.*] Error from District Court, Pittsburg County; Preslie B. Cole, Judge. Action by the Mergenthaler Linotype Company against the American National Bank of McAlester and others. Judgment for plaintiff, and defendants bring error. Dis missed. for questioning its right to use corporate [ versed and remanded for a new trial. franchise is by an information in the nature the Justices concur, except WILLIAMS, J., of a quo warranto filed under the provisions absent, and not participating. of section 1146, Burns 1894. It is true that the legality of the organization of a corporation cannot be collaterally questioned, but must be tested by an information; and that AMERICAN NAT. BANK OF MCALESTER where there has been a good-faith effort to organize a corporation under the law, and corporate functions have been assumed and exercised, the organization becomes a corporation de facto, and, as a general rule, its existence cannot be inquired into collaterally. But the distinction must be kept in view between an attempted incorporation under a statute authorizing the creation of such corporation, and an attempted incorporation where no statute authorizes the crea tion of such a corporation. If there is a law authorizing incorporation, and a goodfaith effort has been made to organize under such law, and the company has exercised corporate rights, it becomes a de facto corporation, and its de jure existence can be questioned only by the state. North v. State ex rel., 107 Ind. 356 [8 N. E. 159]; Hasselman v. United States Mtg. Co., 97 Ind. 365; Williams v. Citizens' R. Co., 130 Ind. 71 [29 N. E. 408], 15 L. R. A. 64 [30 Am. St. Rep. 201]. In the above cases the corporate existence questioned was unauthorized by statute. But, if there is no statute authorizing the organization of a pretended corporation, in a suit by such pretended corporation, its right to exist may be questioned by a plea of nul tiel corporation, which has been held to be a plea in abatement. A corporation de facto cannot exist in any case where there is no law authorizing a de jure corporation. And, where there is no grant of power existing for the creation of the corporation pretended to be organized, there can be no de facto corporation, and, in a suit by such pretended corporation upon a contract executed by it, the other party to the contract is not estopped to deny the corporate existence at the date of the contract. See Heaston v. Cincinnati, etc., R. Co., 16 Ind. 275 [79 Am. Dec. 430]; Williams v. Franklin Tp., etc., Ass'n, 26 Ind. 310; Indianapolis, etc., Co. v. Herkimer, 46 Ind. 142; Mullen v. Beach Grove, etc., 64 Ind. 202; Piper v. Rhodes, 30 Ind. 309; Brown v. Killian, 11 Ind. 449; Harriman v. Southam, 16 Ind. 190; 1 Thompson Corp. §§ 505, 523." See, also, Pape v. Capitol Bank, 20 Kan. 440, 27 Am. Rep. 183; Empire Mills v. Alston Gro. Co., 4 Willson Civ. Cas. Ct. App. (Tex.) § 221, 15 S. W. 505, 12 L. R. A. 366; Blackburn v. Oklahoma City, 1 Okl. 292, 31 Pac. 782, 33 Pac. 708; City of Guthrie v. Wylie, 6 Okl. 62, 55 Pac. 103. J. E. Whitehead, for plaintiffs in error. Boyd & Moore, for defendant in error. TURNER, C. J. On February 17, 1907, the Mergenthaler Linotype Company, defendant in error as plaintiff, filed its complaint in equity in the United States Court for the Indian Territory, Central District at McAlester, against William A. Hinds, American National Bank of South McAlester, J. Puterbaugh, and the Capital Printing Company, as defendants. After answers filed there was a reference and a report of the referee upon an agreed statement of facts, which said report, after exceptions thereto filed, the court sustained, and on November 8, 1908, rendered judgment thereon in favor of plaintiff and against defendants for $1,650, with interest, in all $2,074.88 and costs, and declared the same a lien upon the one two-letter linotype machine in controversy, and ordered it sold to satisfy the same. Subsequently all defendants save Hinds filed a motion for a new trial, and, when the same was overruled, excepted and brought the case here for review by a proceeding in error and case-made without making said Hinds a party thereto. Pending a motion to dismiss this appeal on the ground that Hinds was a necessary party, plaintiffs in error on November 4, 1909, moved and was granted leave by this court to make said Hinds a party defendant herein, which was accordingly done. Defendant in error at this time renews its motion to dismiss, and as As this settles all the assignments of error necessary to discuss, the cause is re*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes |