
    Kahl v. Memphis & Charleston Railroad Co.
    
      Action for Damages against Railroad Company, by Admin-ministrator of Deceased Employe.
    
    1. Railroad corporation under charier granted by two or more States. The Memphis & Charleston Railroad Company, incorporated by legislative acts in Alabama, Tennessee and Mississippi, though under the same name, owned by the same stockholders, invested with like franchises, and operated under the same management, is composed of three separate legal entities ; and the averment that it “is a unit as a corporation” is the mere statement of a legal conclusion, unsupported by the facts.
    
      2. Action against corporation in Alabama, for tort committed in Mississippi. — An action can not be maintained against a railroad corporation in Alabama, for a tort committed in Mississippi, unless the tort was actionable at common law, or is shown to be actionable by statute in Mississippi.
    3. Common law; presumption as in; liability of employer for injuries to employe. — The common law, which is presumed to exist in a sister State in the absence of evidence to the contrary, did not give an action for damages against the employer, where death resulted to an employe from the culpable negligence of a co-employe.
    4. Mississippi statutes giving action to personal representative of decedent. — The statutes of Mississippi which authorize an executor or administrator to prosecute any personal action which his testator or intestate might have prosecuted, and to maintain an action for any trespass to the person or property of the decedent (Rev. Code of Miss., §§ 2078-9), are not substantially similar to the Alabama statute (Code, §§ 2590-92; known as the “Employer’s Act.”
    Appeal from tbe Circuit Court of Colbert.
    Tried before tbe Hou. HeNbx C. Speake.
    Tbis action was brought by John Kahl, as administrator of tbe estate of Jobu P. Kabl, deceased, wbo was killed on tbe 1st April, 1887, near Corintb, Mississippi, while in tbe discharge of bis duties as engineer on one of the defendant’s trains, by a collision with another train, alleged to have been caused by tbe negligence of tbe conductor, to whose orders be was subject; and was commenced on tbe 28th March, 1888. Each count of tbe complaint was framed under tbe statute (Code, §§ 2590-91), and each alleged that tbe defendant was, at the time tbe injury was inflicted, a domestic corporation under tbe laws of Alabama, owning and operating a line of railroad between Stevenson, in Jackson county, Alabama, and Memphis, Tennessee. An amendment was afterwards added to each count, as follows :
    “Defendant is a railroad corporation, chartered by tbe laws of Alabama, Mississippi and Tennessee, and its line of railroad extends from tbe city of Memphis, in Tennessee, to tbe town of Stevenson in Alabama ; it is a continuous line of railroad from and to each of said places, through tbe States of Alabama, Mississippi and Tennessee, and was, at tbe time plaintiff’s intestate was killed, operated under charters procured from -each of said States identical in tbe powers and privileges conferred on it, and was a unit as a corporation, and bad a legal residence in each of said States by which it was chartered, and through which its road runs. Plaintiff avers that bis intestate, at the time lie'was killed, was a citizen of Alabama, and was in tbe defendant’s employment under a contract which was made in Alabama ; that be was an engineer on one of defendant’s locomotives, and tbe contract of bis employment made it bis duty to serve tbe defendant as engineer in running a locomotive from Tuscumbia, Alabama, through tbe State of Mississippi, to tbe city of Memphis, and return. He avers, also, that tbe statutes of Alabama and Mississippi, at tbe time said intestate was killed, giving him a right of action by reason of tbe death of bis intestate and under tbe circumstances above stated in each count of tbis complaint, were precisely the same and alike, and in each of said States a right of action is given to plaintiff, and was given at tbe time of bis intestate’s death, for tbe injury which caused it, tbe statutes on said subject being exactly alike.” [Here followed aver-ments tbat the intestate was killed while in the discharge of his duties as engineer, acting under the orders of the conductor, whose orders he was bound to obey; and that the collision was caused by the negligence of the conductor.] “For the injuries so inflicted the laws of Alabama and Mississippi each give plaintiff a right to bring this suit as administrator, and recover damages commensurate with said injury. He avers that the statutes of Mississippi; under which this action could have been maintained there, are sections 2078 and 2079 of theBevised Code of Mississippi, as follows : SECTION 2078. ‘Executors, administrators and collectors shall have full power and authority to commence and prosecute any personal action whatever, at law or in equity, which the testator or intestate might have commenced and prosecutad; and they shall also be liable to be sued in any court, in any personal action which might have been maintained against the deceased.’ Section 2079. ‘Executors and administrators shall have an action for any trespass done to the person or property, real or personal, of their testator or intestate, against the trespasser, and recover reasonable damages, in like manner as their testator or intestate would have had if living; and the money so recovered shall be assets, and accounted for as such.’ And plaintiff avers that, if his intestate had not died from the injuries received, for which this action is brought, he could have maintained an action against defendant, and recovered damages therefor.”
    A second amendment was added to each count, as follows: “Plaintiff avers that his intestate, at the time he was killed, was not a • fellow-servant of the conductor of _ the train, through whose negligence he was killed; that said intestate was at the time the engineer of the train, and in the performance of his duty as such, and one Guerin was the conductor thereof, and said intestate was subject to his orders, and was obeying said orders at the time of his death, and said obedience of said orders caused his death ; and that under the circumstances causing his death, if death had not resulted, his intestate could have sued and recovered damages commensurate with the injury, in the courts of either Alabama or Mississippi; and death having resulted therefrom, plaintiff is entitled to recover therefor, and would be entitled to recover in the courts of Mississippi.”
    The court sustained a demurrer to the complaint as amended, and this ruling is assigned as error.
    
      J. Moore, for appellant.
    (1.) Tbe complaint shows a good cause of action under the Alabama statute. It shows that the intestate’s contract, in the performance of which he was killed, was made with the defendent, a domestic corporation, in this State ; and that the defendant was operating, under several • charters substantially the same, a continuous line of railroad between Stevenson, Alabama, and Memphis, Tennessee. The boundary line of the State is not the limit of jurisdiction in such case. — Ala. G. S. .Railroad Go. v. Thomas, 89 Ala. 294. (2.) The statutes of Mississippi, under the amended complaint, authorize the action. (3.) At common law, which is presumed to be of force in Mississippi, if the statute does not apply, an action lies against the employer for injuries received by an employe from the negligance of another person in the service, unless they were fellow-servants ; and an engineer is not a fellow-servant of the conductor, whose orders he is bound to obey. — Railroad Go. v. Ross, 112 U. S. 377; 17 Wallace, 553 ; 11 Wise. 238; 28 Md. 28; Railway Accident Law, 369 ; 110 Mass. 240 ; Wood’s Master & Servant, § 425 ; Railroad Go. v. Phillips, 64 Miss. 693; Railway Go. v. Bradford, 86 Ala. 579.
    Hujies & Sheeeey, contra,
    
    cited Willis v. N. P. Railway Go., 48 Amer. Rep. 401; McCarthy v. Railroad Go., 26 Amer. Rep. 742; Davis v. N. Y. & N. E. Railroad Go., 58 Amer. Rep. 138; 61 Texas, 432; Athil v. Huntington, 14 Amer. St. 523; Woodward v. Railroad Go., 10 Ohio St. 121; 2 Rorer on Railroads, 1149-51, and cases; 136 U. S. 356 ; M. & G. Railroad Go. v. Alabama, 107 U. S. 581.
   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 Tennessee, 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 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.  