Stewart Fruit Co. of Baltimore City v. Chicago, M. & St. P. R. Co.

• Decision Date: 15 March 1923
• Docket Number: No. 16.,16.
• Citation: 121 A. 837
• Parties: STEWART FRUIT CO. OF BALTIMORE CITY v. CHICAGO, M. & ST. P. R. CO. et al.
• Court: Maryland Court of Appeals

121 A. 837

STEWART FRUIT CO. OF BALTIMORE CITY

v. CHICAGO, M. & ST. P. R. CO. et al.

No. 16.

Court of Appeals of Maryland.

March 15, 1923.

Appeal from Superior Court of Baltimore City; Robert F. Stanton, Judge. "To be officially reported."

Action by the Stewart Fruit Company of Baltimore City against the Chicago, Milwaukee & St. Paul Railroad Company and another. From orders quashing writs of summons, plaintiff appeals. Affirmed.

Argued before BOYD, C. J., and BRISCOE, THOMAS, PATTISON, URNER, STOCKBRIDGE, ADKINS, and OFFUTT, JJ.

Hyland P. Stewart, of Baltimore, for appellant.

Duncan K. Brent, of Baltimore (Allen S. Bowie, of Baltimore, on the brief), for appellees.

THOMAS, J. This suit was brought, in November, 1921, in the superior court of Baltimore city by the Stewart Fruit Company of Baltimore City, a corporation, against the Baltimore & Ohio Railroad Company, hereinafter called the B. & O. Company, and the Chicago, Milwaukee & St. Paul Railroad Company, hereinafter called the Chicago Company, to recover the value of a carload of apples, and loss of profit on same, which the declaration alleges was delivered, in April, 1920, at Seattle, in the state of Washington, by the Wenatchee Valley Fruit Exchange to the Chicago Company for transportation and delivery over its line and connecting lines to the said Exchange at St. Paul, in the state of Minnesota, and, before its arrival at St. Paul was purchased by the plaintiff, and the carrier notified to divert it from the city of St. Paul and to deliver it "on the lines of the Baltimore & Ohio Railroad at the city of Baltimore" to the shipper, "notify Stewart Fruit Company," but which the Chicago Company and its connecting lines failed to deliver to the plaintiff at Baltimore city.

The writ for the Chicago Company was served upon "Andrew G. Cromwell, agent," whereupon said company, by Duncan K. Brent, its attorney, who appeared solely for the purpose, filed a motion to quash the writ of summons and dismiss the suit upon the grounds: (1) That, at the time of the Institution of the suit and service of said writ, it was a nonresident corporation, and never had been engaged in doing business or exercising its franchises in the state of Maryland; (2) "that it has not any resident agent, president, manager, ticket agent, or any other officer within said state upon whom process can be served in accordance with the provisions of article 23, § 92, of the Public General Laws of Maryland;" (3) that Andrew G. Cromwell, upon whom the writ was served, was a ticket agent employed solely by the B. & O. Company at Mt. Royal Station, in Baltimore, Md., and was not an officer, servant, agent, or employee of the Chicago Company; and (4) that the assumption of jurisdiction by said court over it by virtue of the writ of summons in this case would be a denial to it of due process of law, as provided by the Fourteenth Amendment of the Constitution of the United States.

The plaintiff answered the motion, alleging that at the time of the service of the writ and the institution of the suit the Chicago Company was doing business and exercising its franchises in the state of Maryland; that it had a ticket agent and a freight agent and other officers within the state upon whom process could be served; that Andrew G. Cromwell, upon whom the writ was served, was a ticket agent selling tickets in Baltimore city over the Chicago Company's railroad in connection with his duties as agent of the B. & O. Company, "and actually sold to this plaintiff such a ticket of said two railroads as a connecting through passenger carrier, and received the entire passage money for the same;" that the assertion of jurisdiction by the superior court over said company would not be a denial to it of due process of law, "but on the contrary * * * the cause of action in this case arose from a contract made In Seattle, Wash., for a through freight rate from Seattle * * * to Baltimore city over its line and over the" B. & O. Company's line, "constituting a through trunk line from the two cities engaged in interstate commerce and under through rates as promulgated by the Interstate Commerce Commission, and that the" B. & O. Company "was its agent to collect the entire freight from the through route and remit the" Chicago Company's "share to it after said collection, and has since, and is now, so engaged in through traffic under joint through rates, and it is acting as the agent for the" B. & O. Company "for freight originating over the" B. & O. Company's "lines and collecting the entire freight at point of destination on the line of the" Chicago Company, "and remitting the" B. & O. Company's "portion of said freight to it, and that they are likewise doing the same business, performing the same service and acting as agent in the same capacity in the transportation of passengers between the points on the lines of the two connecting carriers."

At the hearing of the motion the Chicago Company proved by its secretary that it is a corporation of the state of Wisconsin; that it has no property in the state of Maryland, and has never "qualified" in Maryland to conduct business therein, and that, so far as he knows, it has never exercised "its franchise" in Maryland, and has no office in Maryland, and no agent in Baltimore city engaged in soliciting freight.

H. E. Pierpont, traffic manager of the Chicago Company, having general supervision of the freight and passenger traffic of that company, testified that the company did not maintain an office, place of business, or agency in Maryland; that it has no agent, officer, employee, or ticket agent located in Maryland; that the company has no agent or employee in Baltimore city to whom a shipper of apples from Chicago to Baltimore could go to find out what the rates were, but that he would have to go to Philadelphia; that he had never heard of Andrew G. Cromwell, and that Mr. Cromwell was not an officer, agent, or employee of the Chicago Company.

H. H. Field, general solicitor, and one of the officers of the Chicago Company, stated that the company had never "qualified in the state of Maryland as a nonresident corporation," and that it has never exercised its franchise, and has never had any railroad or any fixed property in Maryland.

Mr. Calloway, passenger traffic manager of the B. & O. Company, testified that Mr. Cromwell was the ticket agent of the B. & O. Company at Mt. Royal Station, in Baltimore city, whose duties consisted in selling passenger tickets, and that his entire salary was paid by the B. & O. Company; that, if a man wanted to go to some place off the line of the B. & O. Company, and went to Mt. Royal Station to buy a ticket, Mr. Cromwell would first ascertain what railroad he wanted to go on, and what route he preferred, then look up the train accommodations, let him select the railroad train he preferred, and then sell him a ticket to his destination; that that "method of procedure" applies to all railroads making connection with the B. & O. Company's road; that there is no particular arrangement with the Chicago Company; that the selection of the railroad is left to the passenger; that the B. & O. Company has to be neutral in reference to such selection, and that Mr. Cromwell's instructions are that, in the conduct of the business, he must not influence a passenger to use one Connecting line rather than another; that there is a reciprocal arrangement between all railroads; that the B. & O. Company sells tickets over its own line and connecting lines, collects the whole fare, and, after deducting the charges on its own line, sends the connecting lines their shares of the fare or mileage without any charge for selling the ticket over their lines, and that those lines reciprocate when they sell tickets from points on their lines to a point on the line of the B. & O. Company; that this arrangement exists with all railroads in the United States, and there is no difference in the arrangement between the B. & O. Company and the Chicago Company; that a monthly settlement is made by the various roads; that at the end of each month the accounting department of the B. & O. Company sends the Chicago Company a report showing how much is due it from tickets routed over its road, and the Chicago Company sends the B. & O. Company a report showing the amount due the B. & O. Company for tickets sold over its line, and the road shown by the accounting to be the debtor road sends the other road a check for the amount due it; that before the B. & O. Company can sell a through ticket over the lines of other roads it has to secure from them a "concurrence," which is a form filed with the Interstate Commerce Commission showing that they concur in the fares and rates published by the B. & O. Company, and that the same rule applies to roads desiring to sell through tickets over the B. & O. Company's road. When shown a ticket from Mt. Royal Station, Baltimore, to Racine, Wis., over the B. & O. Company's road, and over the Chicago Company's road from Chicago to Racine, and the printed statement thereon, "In selling this ticket and checking baggage hereon, this company acts only as agent and is not responsible beyond its own line," Mr. Calloway explained that the statement simply meant that the B. & O. Company was not responsible for accidents, etc., beyond its own line, and that it did not mean that it was not responsible to the Chicago Company for its share of the fare collected for the ticket.

Mr. Cromwell, upon whom the writ was served, testified that he sold the ticket referred to above for $30.37 and turned the money over to the B. & O. Company; that he sold the ticket according to the rate shown in the tariff; that his instructions are from the B. & O. Company, and that he collects the entire fare for it, and does not receive any instruction from the Chicago Company or know that company in the...