Kilpatrick v. Texas & P. Ry. Co., Civ. No. 39-341

• Court: United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
• Citation: 72 F. Supp. 635
• Docket Number: Civ. No. 39-341,39-349.
• Parties: KILPATRICK v. TEXAS & P. RY. CO. PARKER v. SAME.
• Decision Date: 16 July 1947

72 F. Supp. 635

KILPATRICK v. TEXAS & P. RY. CO.

PARKER v. SAME.

Civ. Nos. 39-341, 39-349.

District Court, S. D. New York.

July 16, 1947.

Gerald F. Finley and Arnold B. Elkind, both of New York City (Arnold B. Elkind, of New York City, of counsel), for plaintiffs.

Davis, Polk, Wardwell, Sunderland & Kiendl, of New York City, appearing specially for the purposes of these motions only (William H. Timbers and Cleveland C. Cory, both of New York City, of counsel), for defendant.

CAFFEY, District Judge.

The matter now comes up on the motions by defendant to dismiss these two actions and the motions by plaintiffs to take depositions, which were not disposed of by my previous opinion. D.C., 72 F.Supp. 632. Defendant has submitted the affidavits and briefs which I then directed should be submitted. Defendant has also filed a formal notice of the withdrawal of that branch of its motions based upon service of process upon an allegedly improper person. Plaintiffs have submitted no new affidavits on briefs, relying upon the affidavits and briefs submitted upon the original argument of the motions. The only question to be decided upon defendant's motions to dismiss, therefore, is whether or not defendant was doing business in this district in December, 1946, when these actions were instituted.

In Barnett v. Texas & Pacific Railway Co., 2 Cir., 145 F.2d 800, decided on November 29, 1944, the court held that, on the facts then before it, defendant was doing business in this district in 1944. That decision was based on the facts that, in addition to the solicitation of freight and passenger business in New York, defendant also sold tickets for transportation on its line, issued bills of lading and handled complaints here. These additional activities were held to be more than the "slight additions" referred to in its earlier opinions in Hutchinson v. Chase & Gilbert, 2 Cir., 45 F.2d 139, 141, and Jacobowitz v. Thomson, 2 Cir., 141 F.2d 72, 75, 76.

It appears from the affidavit of Cooper Hunt, defendant's Eastern Traffic Manager, that, shortly after this decision, he was informed by defendant's general attorney in Dallas, Texas, that its officers were considering curtailing the authority of defendant's office in New York for the express purpose of causing defendant to conduct its business in New York thereafter in such a manner as not to be amenable to service of process here; that on March 9, 1945, he was informed over the telephone by defendant's Assistant Traffic Manager in Dallas that the authority of the New York office to issue original bills of lading for shipments originating on defendant's lines had been terminated; that on the same day he was also informed in like manner by defendant's General Passenger Agent in Dallas that defendant's New York office was no longer authorized to engage in the sale of tickets for transportation on its lines and was requested to return to Dallas the stock of tickets on hand and the ticket stamper; that these were immediately sent to Dallas; and that since March 9, 1945, no passenger tickets of any kind and no original bills of lading have been issued from defendant's New York office.

Hunt also swears that no employee of defendant in New York has authority to approve, adjust or negotiate the settlement of any claim against defendant by a shipper, or a passenger, or any other person and that all negotiations and decisions as to the terms of settlement of claims are made by defendant's officers in Texas and all checks in settlement of claims are issued by defendant in Texas.

It also appears from his affidavit that defendant operates a railroad in the States of Texas, Louisiana and Arkansas only; that its principal office and its claim department are located in Dallas, where its principal business operations are carried on, its books and records are kept, its stockholders and directors' meetings are held, and its corporate and fiscal business, such as mailing checks, paying bills, purchasing equipment, etc., is carried on; and that its bank account is maintained in Dallas.

It also appears that defendant maintains a single office, consisting of two rooms, at 233 Broadway, New York City, where eight persons are employed, the lease for which was executed by an officer of defendant in Dallas, no one in New York being authorized to execute; that the office is listed in the Manhattan telephone directory and has on its door "The Texas and Pacific Railway Company, Freight & Passenger Dept"; that the expenses of the office, including the salaries of the employees, are paid by check from Dallas; that this office has nothing to do with stockholders' notices, dividend checks or stock transfers; that no employee in New York is authorized to make contracts of any kind on defendant's behalf and none are made here; that the sole purpose of maintaining the office is the solicitation of passenger and freight business over defendant's lines which, when successfully solicited, is actually sold by the railroad over which the passenger or freight trip is scheduled to commence, i. e. the initial carrier, all payments thereafter being made to the initial carrier.

Defendant has also submitted affidavits by each of the other seven employees in defendant's New York office as to the nature of their duties and activities. One is a stenographer, another a clerk. The duties and activities of the other five are confined to the solicitation of passenger and freight business. Their affidavits add nothing of substance to the affidavit of Hunt, except the affidavit of H. J. Higgins, defendant's Eastern Passenger Agent. He says that, if prospective passengers so desire, he facilitates the procurement for them of through tickets to any point on or beyond defendant's lines, and that, in such instances, the initial carrier issues the whole ticket, a part of which covers transportation over defendant's lines.

There is also another affidavit of Hunt as to the functions of the Consolidated Railroad Ticket Office at 3 West 47th Street, New York City. He says that that office is maintained jointly by several metropolitan railroads, such as the Pennsylvania Railroad; that each railroad has there its own space and its own agent; that defendant has no space or employee there; that the agents of the railroads having space there sell through...