Louisville & NR Co. v. Chatters

• Citation: 26 F.2d 403
• Decision Date: 02 June 1928
• Docket Number: No. 5169.,5169.
• Parties: LOUISVILLE & N. R. CO. et al. v. CHATTERS.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

26 F.2d 403 (1928)

LOUISVILLE & N. R. CO. et al. v. CHATTERS.^*

No. 5169.

Circuit Court of Appeals, Fifth Circuit.

June 2, 1928.

J. Blanc Monroe, Monte M. Lemann, and Walter J. Suthon, Jr., all of New Orleans, La., for plaintiff in error Southern Ry. Co.

George Denegre, Victor Leovy, Henry H. Chaffe, Harry McCall, and J. Hy Bruns, all of New Orleans, La., for plaintiff in error Louisville & N. R. Co.

George Piazza, of New Orleans, La., for defendant in error.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This was an action by the defendant in error, a citizen of Louisiana (herein referred to as the plaintiff), against the plaintiffs in error, the Louisville & Nashville Railroad Company, a Kentucky corporation (herein referred to as the L. & N.), and the Southern Railway Company, a Virginia corporation (herein referred to as the Southern), to recover damages for injuries sustained by plaintiff as the result of glass getting into his eyes through the breaking of a window in the railroad car in which, as a passenger, he was traveling on a through train called the Piedmont Limited from New Orleans, La., to Washington, D. C., having a through coupon ticket, bought from the L. & N., calling for carriage over its line from New Orleans to Montgomery, Ala., over the line of the Atlanta & West Point Railroad Company from Montgomery to Atlanta, Ga., and over the line of the Southern from Atlanta to Washington. The injury occurred when the train was on the Southern's line, and about two hours before it reached Washington, as a result of an outside screen on one window of the car in which plaintiff was riding becoming detached on one side, and crashing against and breaking the glass of another window. The Southern excepted to the court's jurisdiction on the ground stated below. The L. & N. set up the defense that it was not liable, because the injury occurred while the plaintiff was on the line of the Southern. Both defendants complain of rulings of the court on evidence, and in giving and refusing instructions to the jury.

The Southern's exception to the court's jurisdiction was based on the ground that the cause of action made the basis of the suit does not arise out of any act occurring in Louisiana, or out of any business done in that state by the Southern, but arises out of an alleged accident occurring outside of Louisiana. The following provision of the Louisiana statute which was in force when this suit was brought was relied on as the basis of the exception mentioned:

"The appointment of the agent or agents or officer upon whom service of process may be made shall be contained in a written power of attorney accompanied by a duly certified copy of the resolution of the board of directors of said corporation consenting and agreeing on the part of the said corporation that any lawful process against the same which is served upon the said agent or officer shall be a valid service upon said corporation — and that the authority shall continue in force and be maintained as long as any liability remains outstanding against said corporation growing out of or connected with the business done by said corporation in this state." Act No. 184 of 1924, § 2.

The language of this provision indicates a legislative intention to make the service on the designated agent of "any lawful process" a valid service on the corporation appointing such agent, whether the suit in which the process issued is or is not based on a cause of action arising in Louisiana. It seems that the purpose of the concluding clause of the provision was, not to restrict the agency so long as the corporation continues to do business in the state, but to continue the agency in force after the corporation ceases to do business in the state "as long as any liability remains outstanding against said corporation growing out of or connected with the business done by said corporation in this state."

But, whether that statute does or does not have the meaning contended for by counsel for the Southern, the court had jurisdiction of the suit, because it was between citizens of different states and involved the jurisdictional sum or value (Judicial Code, § 24 (1), 28 USCA § 41 (1), and the suit was subject to be brought in the court below under the provision of section 51 of the judicial Code (28 USCA § 112), "where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant." Federal, and not state, statutes determine the jurisdiction of federal courts, and the district in which a suit within the jurisdiction of such court may be brought. Barrow Steamship Co. v. Kane, 170 U. S. 100, 18 S. Ct. 526, 42 L. Ed. 964. A federal court's jurisdiction of a suit, based on a transitory cause of action, brought by a citizen of the district in which the suit is brought against a corporation organized under the law of another state, is not dependent on the asserted cause of action being one which arose in the state in which the suit is brought or out of business transacted therein. The attaching of the federal court's jurisdiction in such a case is dependent upon the corporation sued doing business in the state in which the suit is brought and having there an agent upon whom process against it properly may be and is served.

The exception under consideration is not based on the fact that the Southern was not doing business in Louisiana when the cause of action asserted arose and when the suit was brought, or on the person on whom the process in this suit against the Southern was served not being an agent of the Southern authorized to receive service of process against it to Louisiana. The exception alleged that the Southern was doing business in Louisiana, and had appointed an agent for the service of process within that state. That pleading raised no question as to the effectiveness of the service of process against the Southern, if the suit, so far as the Southern is concerned, is one within the court's jurisdiction. The cause of action asserted being transitory in its nature, the court's jurisdiction being founded only on the fact that the action is between citizens of different states, and the plaintiff being a resident of the district in which the suit was brought, the suit was subject to be brought in that district. Decisions on the subjects of what constitutes such doing of business by a corporation in a state other than that of its domicile as to make the corporation suable in such state, and of what constitutes an effective service of process against the corporation in such a suit, are not pertinent to the question raised by the exception under consideration. We are of opinion that the court did not err in overruling that exception.

The Southern complains of the action of the court with reference to a suggestion, made upon the overruling of the above considered exception, that the Southern was entitled to plead vagueness. Upon the making of that suggestion, the court stated, "Exception overruled," and gave the defendants 10 days to answer the petition on the merits. It seems that the court treated the suggestion as an exception to the petition on the ground of vagueness, and overruled that exception. In argument it was suggested that the petition was vague, in that it alleged that plaintiff purchased the described ticket "on or about the 26th day of January, 1925," and boarded the train on which he traveled on the day following the purchase of the ticket. Vagueness in no other respect was attributed to the petition.

Even if the petition properly could be considered to be subject to objection on the ground of vagueness, the record negatives the conclusion that the Southern...