Kahl v. Memphis & Charleston Railroad

COLEMAN, J. The averments of the complaint show that plaintiff’s intestate, while acting in the discharge of his duties as an employe of the defendant railroad corporation, was killed in a collision of trains caused by the negligence of the employer. The collision occurred in the State of Mississippi, and the present action to recover damages for the death of the intestate was instituted in the State of Alabama. The court below sustained a demurrer to the amended complaint, and plaintiff declining to further amend, his action was dismissed. We are of opinion that the amendment added to each count of the complaints clearly avers three separate, distinct and independent constituents of the defendant’s corporate character, one created by the State of Mississippi, one by the State of Alabama, one by the State of Tennes [341] see, and neither dependent upon tbe other for existence or authority. The averment that it was “a unit as a corporation,” is a mere conclusion of the pleader. Though incorporated by the same corporate name, owned by the same stockholders, invested with like franchises, and operated under the same management, so that practically it is a single corporation, legally speaking the corporation is composed of three separate, independent legal entities, each depending for its existence upon the separate and independent acts of incorporation by the several States through which it passes. If the State of Mississippi should revoke and annul the charter granted by that State, the Memphis & Charleston Bailroad Company, as a corporation, would still exist in Alabama and Tennessee, but there would be no such corporation in the State of Mississippi. Neither of the three States can give or take away the legal existence of a corporation beyond its territorial boundary. "Within the boundary of Alabama, it is a domestic corporation, beyond that it is a foreign corporation. These general principles find support in many adjudications. — • Grangers' Life & Health Ins. Co. v. Hamper, 83 Ala. 225; Memphis R. R. Co. v. Alabama, 107 U. S. 581; Paul v. Virginia, 8 Wall. 168, 181; Runhan v. Coster, 24 Pet. 122 ; St. Clair v. Cox, 106 U. S. 350; Nashua R. R. Co. v. Lowell R. R. Co., 136 U. S. 356. It would seem to follow that the tort complained of in the present case was committed by a foreign corporation, and beyond the jurisdiction of the State of Alabama. In Borer on Bailroacls, vol. 2, p. 1149, par. 3, it is said: “The right given by statute to the recovery of damages for injuries caused by the wrongful act or negligence of a railroad company, its employes and servants, is local in the courts of the country or State wherein the right is given by the statute and the injury is incurred.” A great many authorities are cited by the author to support the text. See, also, Central R. R. & Co. v. Carr, 76 Ala. 393. The demurrer was well taken for another reason. We think it may be stated as an established proposition, that if the tort complained of was not actionable in the State where it occurred, it will not sustain an action in this State. The present action is purely statutory. At common law, where death resulted from the culpable negligence of a co-employe, under such circumstances as averred in the complaint, no action could be maintained against the master. — Ga. Pac. R. R. Co. v. Davis, 92 Ala. 312; Stewart v. L. & N. R. R. Co., 83 Ala. 493; L. & N. R. R. Co. v. Orr, 91 Ala. 552. If there [342] exists any statute in tbe State of Mississippi giving an action to tbe administrator of a deceased employe against tbe master to recover damages for tbe death of bis intestate, caused by tbe negligence of a co-employe, or any statute substantially similar to wbat is known as tbe “Employer’s Act” in tbis State, sucb statute ought to have been set out in tbe complaint. Sections 2078-2079 of tbe Revised Code of Mississippi, copied in tbe complaint, do not cover a case like tbe present. In tbe absence of sucb an averment, we must presume tbe common law was in force in that State; and at common law tbe present action could not be maintained. In either view, tbe demurrer was well taken and properly sustained. Affirmed.