Wood v. Delaware & HR Corporation

• Decision Date: 14 February 1933
• Docket Number: No. 186.,186.
• Court: U.S. Court of Appeals — Second Circuit
• Parties: WOOD v. DELAWARE & H. R. CORPORATION.

63 F.2d 235 (1933)

WOOD v. DELAWARE & H. R. CORPORATION.

No. 186.

Circuit Court of Appeals, Second Circuit.

February 14, 1933.

Sydney A. Syme, of White Plains, N. Y., for appellant.

H. T. Newcomb, of New York City (Joseph Rosch and J. L. Fitzgerald, both of Albany, N. Y., of counsel), for appellee.

Before L. HAND, SWAN, and AUGUSTUS N. HAND, Circuit Judges.

SWAN, Circuit Judge.

Section 6 of the Federal Employers' Liability Act (45 USCA § 56) permits an action to be brought in a District Court "in the district of the residence of the defendant, or in which the cause of action arose, or in which the defendant shall be doing business at the time of commencing such action."

The defendant is a New York corporation operating a railroad between Wilkesbarre, Pa., and Rouses Point, N. Y. Its principal office and place of business is located at Albany. This fixes its "residence" within the Northern district. Galveston, etc., Ry. Co. v. Gonzales, 151 U. S. 496, 504, 14 S. Ct. 401, 38 L. Ed. 248; Fairbanks Steam Shovel Co. v. Wills, 240 U. S. 642, 648, 36 S. Ct. 466, 60 L. Ed. 841. Within that district also arose the cause of action sued on, for there the plaintiff's intestate resided, was employed by the defendant, and sustained the injury which resulted in his death. His administratrix and dependents also reside there. Indeed, it is conceded by the appellant that the only basis for bringing the present action in the Southern district rests in the allegation that the defendant is doing business there. The nature of such business raises the question presented by this appeal.

From the affidavits presented for and against the motion to dismiss, it appears that no part of the defendant's line of railroad lies within the Southern district. While its timetable advertises and schedules through train service between the cities of New York and Montreal, these trains are operated by the New York Central Railroad until they reach Albany or Troy; both junction points being outside the Southern district. However, the defendant does have certain offices within New York City, which are designated under its name in the telephone directory as "General Offices, 32 Nassau St., Passenger Department, 33 West 42nd St. and Freight Department, 60 East 42nd St." At the "general offices" was found the defendant's assistant treasurer upon whom the summons and complaint were served in this action. The timetable states that at the other two offices, respectively, representatives of the railroad will furnish information concerning rates, routes, service, etc., of passenger and freight traffic. It also indicates that tickets and Pullman accommodations may be secured at "Consolidated Ticket Offices," but the relation of the defendant to such consolidated offices does not appear. Although the record does not disclose the nature of the business transacted by the defendant at its "general offices" in New York City, its brief admits that it there "maintains certain financial offices and officers." The District Court dismissed the complaint because the cause of action was not in any way connected with any business done at its financial offices, and because of considerations of convenience. The latter considerations were based upon the defendant's assertion by affidavit that a trial in the Southern district will impose an undue burden upon its interstate commerce by requiring it to bring to New York City as witnesses a large number of its employees who work upon its railroad in the Northern district, where the accident occurred and where the action could more conveniently and economically be tried.

However appealing such considerations might be if the matter of taking or declining jurisdiction were discretionary, they cannot control if this defendant is "doing business" in the Southern district within the meaning of the statute (45 USCA § 56). Questions of interference with interstate commerce by state statutes which assume to permit a foreign corporation to be sued in a state court upon a cause of action which arose outside the state, such as are discussed in Davis v. Farmers' Co-operative Co., 262 U. S. 312, 43 S. Ct. 556, 67 L. Ed. 996; Michigan Central R. R. Co. v. Mix, 278 U. S. 492, 49 S. Ct. 207, 73 L. Ed. 470, and Denver & R. G. W. R. Co. v. Terte, 284 U. S. 284, 52 S. Ct. 152, 76 L. Ed. 295, and upon which the defendant relies as an analogy, are not relevant here. Nor need we consider whether the doctrine of these cases can have application to a suit brought in a federal court pursuant to section 6 of the Federal Employers' Liability Act (45 USCA § 56), although there is substantial authority that it cannot. Schendel v. McGee, 300 F. 273, 278 (C. C. A. 8); Southern Ry. Co. v. Cochran, 56 F.(2d) 1019, 1020 (C. C. A. 6); Trapp v. Baltimore & O. R. Co., 283 F. 655 (D. C. N. D. Ohio); Connelly v. Central R. R. of N. J., 238 F. 932 (D. C....