Abraham Clark Freeman.

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Justice Lurton, in a well-considered opinion, that a general de-
murrer to a petition by a foreign administrator to recover for the
death of his intestate, caused by the tort of the defendant, should
have been sustained, and upon the ground there was no privity of
representation — ^no cause of action in the plaintiff.

This court has also decided the identical question involved
here. William Robb died at his domicile in the state of Massa-
chusetts, leaving a will by which his executor was authorized to
dispose of land in Jefferson county, Kentucky. The executor
•old the land and brought an action to enforce the contract

Digitized by


298 LouiBviLLB ETC. R. R, Co. V. Brantley. [Kentucliji

There was a general demurrer to the petition, based on two
grounds: 1. The executor had no power to sell; 2. If such a power
existed, he could not, as executor, maintain the action without
complying with the provisions of the statute. It was held by
this court, through Mr. Justice Holt, that the power to sell existed,
but the executor could not maintain the action because he had not
complied with the statute, and for that reason the general de-
murrer should have been sustained, the court saying, after citing
the statute: '^is qualification in a sister state does not authorize
him to administer the assets here, or act otherwise in our courts as
such representative": Marrett v. Babb, 91 Ky. 88.

There is still another question raised by counsel ^^® that re-
quires a reversal of the judgment below. After a judgment had
been entered on the verdict, a motion for a new trial was made bj
the defense, that for some reason was afterwards withdrawn.

The court instructed the jury as to the measure of damages in
the event the injury was caused by the gross negligence of the de-
fendant; and also instructed the jury what to find if the defendant
was guilty of ordinary neglect. The jury, therefore, had two dis-
tinct issues presented by the instructions as to their finding: 1.
If gross neglect exist, you may find punitive damages; 2. If ordi-
nary neglect, you will find only the actual damage sustained; and
the jury, under the instructions, returned a finding for ordinary
neglect. If the instructions are to be considered, it is manifest
the court below erred in instructing the jury they could find dam-
ages for the injury caused by ordinary neglect, as this court has
decided that where one employee enters into a service, such as
that pertaining to railroad corporations, and is crippled by the
negligence of another employee in the same service of a higher
grade, in order to recover gross negligence must be alleged and
shown, as the ordinary risks belonging to such an employment he
assumes when entering the service. But it is said there is no bill
of evidence, and the instructions alone being here they cannot be
considered, and the error committed being that of the court, it
cannot be corrected without a motion for a new trial.

If the instructions are here for the purpose of enabling this
court to know thnt the court below committed the error, they
must also be here for the ®^* purpose of enabling the court to
correct the error. It was held in Robards v. Wolfe, 1 Dana, 156,
that although the bill of evidence was not before the court, the
instmction was erroneous under any state of case, and, there-
fore, the judgment was reversed. Here, however, there was no
motion for a new trial, as there doubtless was in Robards v* Wolfe^

Digitized by


Not. 1894.] Louisville etc. R. R. Co. v, Brantley. 299

1 Dana, 156, and the sole question is. Were the yerdict and judg-
ment authorized by the pleadings? The appellant moTed to set
aaide the judgment and render a judgment for the defendant

If the plaintiff in this case, haying alleged gross n^ligence^
could recoyer for any less degree of neglect, then this yerdict
should stand, if otherwise proper, but, as has already been stated^
gross neglect must be shown before a recovery in this class of cases
can be had.

The plaintiff must recover upon proof of the cause of action al-
leged in his petition, and in this case it is manifest that a recovery
has been permitted, not upon the cause of action alleged, but for
that degree of negligence for which no action could be maintained.
If the yerdict had read: *TVe of the jury find for the plaintiff five
thousand dollars," and nothing more, then this court could not tell
whether it was for the gross or ordinary neglect of the de-
fendant, and, in the absence of a bill of evidence, would answer that
the yerdict was based on the cause of action alleged. Here, how-
ever, is a true verdict returned saying: ^TVe of the jury finl the
defendant guilty of ordinary negligence, and assess the damages
at five thousand dollars." A motion then to set aside •** the
verdict or the judgment rendered upon it was proper, because it
was not responsive to the cause of action alleged in the petition.

The pleadings no more authorized the verdict than a verdict
for one species of property when the plaintiff in his petition
claimed another and different kind of property. Suppose the
jury had returned into court and said to the judge: ''We find this
defendant guilty of ordinary neglect; can we give to the plaintiff
damages?" The response in writing would have been: You can-
not award damages for ordinary neglect.

This is, in substance, what the jury said to the court by their
verdict — a verdict not sustained by the pleadings or authorized
by hiw even if ordinary neglect had been alleged.

Special findings were had at the common law, and, although
none were asked in this case by either party, the jury, of its own
volition, returned verdict for ordinary neglect. With the in-
structions therefore out of the case, and they have no place here,
as there is no bill of exceptions, the finding of the jury is for that
degree of neglect for which the law in this character of case will
not permit a recovery. The degree of neglect causing the injury
was for the jury and not the court to determine. As to special
verdicts at common law, see Stephen on Pleading, 91, 92; 1 Rob-
inson on Practice, 373, 406; Proffatt on Jury Trials, 434, 439, 440.

It is maintained the jury had no right to return a special verdict.

Digitized by


800 CiNciNif ATI Coop£BAaJS Ca V. Batk. [Eentuckyt

It was, neyerthelesB, returned, ajid no judgment should have 1
entered upon it. Whether *^* or not, under the state of case pre*
sented, the defendant is entitled to a verdict, is now immaterialy
as it would constitute no bar to a recovery by a rightful admin-
istrator, or one entitled to bring the action.

The judgment is reversed, with directions to set aside the ver-
dict and judgment, and sustain the demurrer to the petition.

SUE.— Ordinarily, no suit can be maintained by or against any executor
or administrator in hia official capacity in the coarts of another state
from that in which he was appointed ; Fugate v. Moore, 86 Va. 1046 ; 19
Am. St. Rep. 926 ; extended note to Shinn's Estate, 46 Am. St. Rep. 672,
See, also, the extended note to Alley v. Caspari, 6 Am. St. Rep. 186.

master from liability to a servant for injury caused by negligence of a
fellow-servant does not apply in cases of willful neglect, where the two
servants are not co-equals: Louisville etc. R. R. Co. v. Brooks, 88 Ey.
129 ; 4 Am. St. Rep. 186. To entitle a servant to recover of his master
for the negligence of another servant associated with him in the same
department of service, he must allege and prove that such other servant
was his superior in point of authority ana control, and that the negli*
gence was gross: Greer v. Louisville etc. R. R. Co., 94 Ky. 169; 42
Am. St. Rep. 346.

Cincinnati Cooperage Company v. Bate.

[96 EnrrocKT, 856.]

Members of a corporation who voluntarily change or alter the corpo*
rate name selected, without recourse to such formal proceedings as
are prescribed by law, thereby abandon the old corporation and be-
come liable as partners in the new concern, as to parties who deal
with it or give it credit

Fairleigh & Straus^ for the appellant

J. S. Pirtle^ for the appellee.

^^ HAZELSIGG, J. The condnsions of fact certified by the
conrt below in this case are that ''the New Albany Brewing Com-
pany was a corporation duly created and organized under the laws
of tiie state of Indiana for the purpose of mann&ctniing and
vending beer. It was incorporated under the corporate name of
the TTew Albary Brewing Company.' Afterwards, the de-
fendants, R R Bate, J. Gebhart, and another, acquired the
entire stock of the New Albany Brewing Company, and became
its directors. Bate, Gebhart, and another, as directors and
stockholders^ without taking any steps required by the law of

Digitized by


May, 1891] Ginginnati Gooperaoe Co. v. Batb. SOI

Indiana in such caaes proyided, changed the name of the ^ew
Albany Brewing Company' to the 'Gebhardt ft Bate Brewing
Company/ and thereafter the business of the New Albany Brew-
ing Company was conducted under the name of the Gtebhart ft
Bate Brewing Company^ and the business under the latter name
was conducted at the same place^ and in its conduct was used the
same property, appliances, and machinery. The draft sued on was
drawn and accepted after the change of name of said corporation
as aforesaid, and whilst the defendant E. B. Bate was a holder
and owner of stock and a director of the corporation.''

'^ The court found, as a matter of law, that Bate was not
liable indiyidually on the draft, nor liable thereon as a partner.
The contention of the appellant is that Bate and the other owners
oi the old concern^ having abandoned the corporate name and
adopted a new name, which gave special prominence to the
names of the individuals composing the concern, are individually
liable as partners in a venture, for the reason that no legal steps
were taken to change the corporate name, as might have been done
under the easy mode provided by the Indiana statute.

It is evident, at the outstart, that if there are any adjudications
in point by the Indiana courts, they must be given a controlling
influence, and we are referred to the case of Coleman t. Coleman,
78 Ind. 344. The court says: 'Waiving all consideration of the
doctrine of estoppel contended for, and conceding that there was
no corporate body for which the appellees were authorized to act,
. . • • still, if the company was not a corporate body, then it was a
partnership, composed not merely of the directors, but of all the
subscribers to the articles of incorporation.''

That the Ctebhart ft Bate Brewing Company was a corporate
body cannot be maintained in the face of the record to the con-
trary. The parties assuming to do business as such company
did not take a single step required by the statute for the purpose of
creating a corporation or of changing the name of the old corpora-
tion. The name of a corporation is 'Hhe very being of its con-
stitution, the knot of its combination, without which it could not
perform its corporate functions": Smith's Mercantile Law, 8d ed.^

*^ ''When a corporation is created, a name must be given to
it, and by that name alone must it sue and be sued and do all legal
acts": 1 Blackstone's Commentaries, 474. The law knows a
corporation only by its corporate name": Walker's American Law,
9th ed., 232.

''A corporation has no right or power of itself to ehange or

Digitized by


802 OniciNNATi Cooperage Go. v. Bate. [Kentucky^

alter the mme origmally selected by it without recoxine to lach
formal proceedings as are prescribed by laV: Beach on Frigate
Corporations^ sec. 275. The effect of such change of name is an
abandonment, not only of the corporate name, but of the corpora-
tion itself. The identity of the creature authorized by the statute
to do business is destroyed. It is in no sense like the case where an
individual changes his name. The very being of its constitution
is destroyed by an abandonment of its name and an attempted sub-
stitution of a new name without authority of law. In the case
of Fuller v. Rowe, 57 N. Y. 26, it was said: 'Tarties assuming to
act in a corporate capacity without a legal organization as a cor-
porate body are liable as partners to those with whom they con-
tract.'^ In Bobinson y. Harris, 5 Ky. Law Bep. 928, it was held
that the corporate existence of associations provided for in chapter
56 of the Qeneral Statutes depends upon and begins only after the
terms of the law are substantially complied with; and, until the
notice required by section 5 has been published, the association has
no right to begin business as a corporation, and because such
notice had not been published, the members were held liable as
individuals. We concur in the conclusions reached ^^ by the
superior court in this case, that ''the Qebhart & Bate Brewing
Company had no right to do business as a corporation until the
members had complied with the law. Until they did so, no cor-
poration existed. The stockholders were merely doing business as
partners, and, as such, are individually liable for the debts.**

Judgment reversed and cause remanded for proceedings con-
formable to this opinion*

a name is given in the act of incorporation, it cannot he changed hy the
corporate body. The corporate name can be changed onlv by the same
power bv which the corporate body has been created : Sykes t. People,
132 III. 32; Boone on Corporations, sec. 31 ; Thompson on Ck>rponitioa8,
sec. 288.

Digitized by


Jan. 1895.] Louibvillb etc. By. Ca v. Stsphjsni. 808

LouisviLLB BTa Railwat Company v. Stbphbns*

[96 KbntUCKT, 401.]

deed executed by husband and wife, not acknowledged nor recorded,
granting to a railway company a strip of the wife's land as a right of
way, does not diyest her title nor estop her from asserting title thereto^
though without fraud she may have thus induced the company to
build its road along the route taken.

If, after a husband and wife have granted a railway company a right
of way across her land by a conveyance void because not acknowl-
edged or recorded, she stands by and allows the road to be built upon
her land without objection, she cannot require the company to tear up
its track and quit the occupancy of the premises, but she is entitled to
recover damages.

to their lands, except for fraud, and can be divested of their interest
therein only in the mode prescribed by statute.

DEDICATION OF REAL ESTATE to a public use may be made
by parol, but there is no such thing as a parol dedication of real es-
tate to a private use.

ration is a private institution, created and operated for private ^n,
and cannot acquire land for railway purposes by dedication*

Helm & Bruce, for the appellant

Fairleigh & Straus and J. W. Lewis, for the appellees.

^^ HAZELRIQG, J. By a writing of April, 1886, the ap-
pellees, W. E. and Amanda S. Minor, in consideration of the bene-
fits to be derived from the building of the appellant's road, under-
took to release, grant, and convey to the appellant a strip of
ground aiziy feet in width through the farm of the appellee,
Amanda S., situated on the Ohio river, in Breckinridge county.
The conditions of the grant were that the road should run between
the dwelling-house and the river^ and not be nearer than three
hundred feet from it. This deed of conveyance was signed by the
appellees,. who are husband and wife, and attested by two wit-
nesses, but was not acknowledged before any officer or attempted
to be put of record. The title of this land was then held under the
following provision of the will of Daniel J. Stephens, the father
of Amanda: '? will and devise the same to my son, James O.
Stephens, in trust for the use and benefit of my said daughter,
Amanda, her heirs, etc., forever, to be held by the said trustee for
the sole, separate, and exclusive use of my said daughter, free
from the debts and other liabilities, control, or disposition of any
husband she may hereafter have. The said trustee is to permit
Ihe said Amanda to occupy or lease said land as she may think

Digitized by


304 Louisville etc. Rt. Co. v. Stephens. [Eentockj,

proper, and she is to direct and control the use and enjoyment of
said luid, the rents and profits of said land to be held as the land
is held — ^for the separate use and benefit of said Amanda, The
said James G. Stephens is to incur no responsibility, nor be in any
wise liable on account of his trusteeship aforesaid, as it is my de-
sire that my daughter ^^^ shall have the beneficial use of the land
aforesaid devised in trust, and the control thereof for her own use
as aforesaid/^

Shortly after the execution of the writing named, the appellant
entered on the land and built the road, as required by it, between
the dwelling-house and the river, but within about one hundred
feet of the former.

This action was thereupon brought by Stephens, trustee, the
minors uniting, for damages by reason of the construction of the
road. Upon the trial, the sole question submitted to the jury was.
How much, if any, was the market value of the farm reduced be-
cause of that construction? The appellees recovered the sum of
tenthousanddoUars. The appellant insiBts on this appeal, that the
appellees were entitled to recover nothing: 1. Because the acts of
the minors in executing the writing and consenting or acquiescing
inhavingtheroadbuiltnearerthan three hundred feet to the house,
as is alleged they did do, constituted an estoppel; and 2. Because
their acts constituted a dedication to the railroad company of the
right of way. That while the title did not pass, yet an easement
was acquired.

As to the first question, we are aware of no case in which it has
been held that a married woman is estopped from asserting title to
her lands, except on the ground of fraud. She can be divested of
her interest only in the mode pointed out by the statute. She is
supposed to be under the dominion of the husband and incapable
of contracting. When executing conveyances, she must acknowl-
edge them separate ^^ and apart from the husband. In any
point of view the writing, or so-called deed of conveyance, in this
case, must be regarded as ineffectual for any purpose. It not only
^oes not divest her of title, but it is not binding on her for any
purpose, and it would be singular if a void contract or writing
could work an estoppel.

The case is to be determined as if she never signed the instru-
ment. We may conclude that she stood by and, without ob-
jection, acquiesced in the subjection of the land to tiie uses of the
road, and, for obvious reasons, she cannot require the company to
tear up its track and quit the occupancy of the premises. TUs
she is not asking. She is not charged with the pefpetnttoa of

Digitized by


Jan. 1895.] Louisvillb etc. By. Co. v. Stefhkhb. 805

any fraud or misrepresentation. If she has attempted to oonyey
her lands^ and failed to do so in the manner required by the
statute^ it is as if she had not made the attempt

If^ by reason of her signing this writing, the company was in*
duced to build its road along the route taken, rather than along
some other route, as is alleged and as is probable, still no fraud is
chargeable to the wife, or concealment of any fact.

She has not legally parted with any right, and is not estopped in
the assertion of any by her void contract, or by her conduct: Ken-
nedy Y. Ten Broeck, 11 Bush, ^1; Bigelow on Estoppel, 3d
ed, 484.

The second question is thus disposed of by the superior court in
a well-considered opinion: ^'A dedication of real estate to a public
use may be made by parol; but there is no such thing as parol dedi-
cation of real estate to a private use. A railroad ^^^ corporation
is not a public institution. It is true that it serves a public pur-
pose, and for that reason the law has conferred upon it the right to
condemn land for its use, and makes it, in many particulars, sub-
ject to the control of the courts, but it is nevertheless a private in-
stitution created and operated for the purpose of private gain.''

This position is supported by the case of Todd v. Pittsburg etc.
B. B. Co., 19 Ohio St., 514, where, in speaking of this subject, the
court said: '^ts road, its right of way, its depots, its offices, its
rolling stock, etc., are all, not public, but private, property. They
are owned by the defendant But among the various methods by
which private property may be acquired, dedication is not one.
The statute provides that railroad companies may acquire sites
for depots, etc., by donation, by purchase, or by appropriation.
In the case of a donation or purchase, a formal conveyance is
necessary to pass title But no provision is made for acquisi-
tion by dedication. It is but a fallacy to suppose that there is a
dedication in the case merely because the defendant, for its owji
gain, has assumed toward the public the relation of a common

The fact that the legal title to the land in coif troversy was not
in the minors makes still less probable the company's contention
that the writing vested it with any title to or right of way over the
disputed premises.

Judgment affirmed.


If a husband executes a deed which is also signed by his wife, bat is

void as to ber becanse defectively ezeonted, and the consideration is a

transfer of other tracts of land to him, she is not, by her subsequent

AM. ar. Bar., Vou XLDL— »

Digitized by


806 Valz v. Fibst National Bank. [Kentucky^

Joinder in a oonyeyanoe to a third person of the lands so ao^aired by
her husband, estopped from denying the validity of the original deed t
Stone V. Sledge, 87 Tex. 49; 47 Am. St. Rep. 65. and note. See, also»
the extended note to Eantrowits v. Prather, 99 Am. Dec. 60S.

and for public purposes may be made by parol and be established by
parol evidence: McKinney v. Griggs, 6 Bash, 401; 96 Am. Dec. 860,
and note. See, further, the notes to Mason v. Sioux Fails, 80 Am. St.
Rep. 811, 812, and Board of Supervisors v. Seal. 14 Am. St. Kep. 648, and
the extended note to State v. Trask, 27 Am. Dec. 569.

A dedication of lands can be for public purposes only. Railway com-
panies are private corporations, and therefore cannot acquire lands or
an easement therein by common-law dedication : Lake Erie etc B« R..
Go. V. Whitham» 166 111. 614; 40 Am. St. Rep. 866, and note.

Valz v. First National Bank.

[96 Kxinnyorr,64a.]

after the dissolution of the partnership, gives a firm note for a part-
nership debt, and jndgmont la rendered against him in an action'
thereon, in which a plea of non est factum is sustained in favor of the
other partner, such Judgment does not bar an action against the latter
to recover the debt for which the note was given.

PARTNERSHIP— ACTIONS— MERGER.— An action against all
of the partners upon an account for a firm debt Is not merged In an
action on a note for a partnership debt executed by one of the partners
in the firm name after the dissolution of the partnership.

TATIONS OF ANOTHER STATE Is not available, unless its term»
and provisions are so pleaded as to show that by it the action Is

In the absence of a plea showing that the action is barred by the stat-
ute of limitations of another state where the cause of action accrued,
the statute of limitations of the state where the action is brought
must control.

must be pleaded to be available on the triaL

I. Julian, for the appellant

Bullitt & Shield and J. W. Rodman, for the appellee.

«^« PAYNTER, J. The appellant, Valz, and one Commotto-
were partners under the firm name of Commotto & Valz, in a

Online LibraryAbraham Clark FreemanThe American state reports: containing the cases of general value and ... → online text (page 35 of 121)