State v. Pennsylvania Steel Co. of Philadelphia, Pa.
| Citation | 91 A. 136,123 Md. 212 |
| Decision Date | 08 April 1914 |
| Docket Number | 8,9. |
| Parties | STATE, to Use of BICKEL et al., v. PENNSYLVANIA STEEL CO. OF PHILADELPHIA, PA. |
| Court | Court of Appeals of Maryland |
Appeal from Circuit Court, Washington County; M. L. Keedy, Judge.
"To be officially reported."
Suit by the state of Maryland, to the use of Frances L. Bickel and another, against the Pennsylvania Steel Company of Philadelphia, Pa. From an order quashing the return to the summons, plaintiffs appeal. Reversed and remanded.
Argued before BOYD, C.J. and BRISCOE, THOMAS, PATTISON, URNER STOCKBRIDGE, and CONSTABLE, JJ.
Palmer Tennant and Frank G. Wagaman, both of Hagerstown (Wagaman & Wagaman, of Hagerstown, Marshall McCormick, of Roanoke, Va and Samuel B. Loose and Alexander Armstrong, Jr., both of Hagerstown, on the brief), for appellants.
Henry H. Keedy, Jr., of Hagerstown (J. Clarence Lane, of Hagerstown, on the brief), for appellee.
This suit was brought by the appellants, Frances L. Bickel and Margaret Bickel, as equitable plaintiffs, against the Pennsylvania Steel Company, a corporation, incorporated under the laws of the state of Pennsylvania, to recover damages for the death of Ross L. Bickel, husband and father of the equitable plaintiffs, caused, as it is alleged, by the negligence of the defendant while he was engaged as its employé in the erection of the steel superstructure of a bridge across the Potomac river at Williamsport, Washington county, Md.
The accident resulting in the death of Bickel occurred on the 16th day of December, 1908, and this suit was instituted on December 11, 1909, and after many renewals, the summons issued to the April term, 1913, was returned:
"Summoned, the Pennsylvania Steel Company of Philadelphia, a corporation, by service on R. C. Hoffman & Co., Incorporated, its agent, by service on Howard E. Kernan treasurer, and a copy of the process left with R. C. Hoffman & Co., Incorporated, by leaving the same with Howard E. Kernan, treasurer of R. C. Hoffman & Co., Incorporated; also, notice of said summons left at the principal office of said corporation."
A motion filed to quash the return to the summons was granted and the return to the summons quashed. Among the grounds assigned in the motion, and those upon which the defendant relies and upon which the court below sustained the motion are: First. That the "defendant is not now doing business in the state of Maryland, nor has it been doing any business therein, nor been engaged in doing any business in the state of Maryland, since the 17th day of January, 1910." Second. That R. C. Hoffman & Co., Incorporated, upon which the summons was served, was not at the time of the institution of this suit, or had it ever been, an agent of the defendant company upon which process could have been served for and on behalf of defendant company.
A motion to dismiss the appeal having been filed in this court, it will first be considered.
It is contended by the appellee that the order sustaining the motion and quashing the return is not a final, but an interlocutory, order from which an appeal to this court will not lie, and to sustain its contention cites us to the cases of Oland v. Agricultural Insurance Co., 69 Md. 248, 14 A. 669, Bolgiano v. Gilbert Lock Co., 73 Md. 132, 20 A. 788, 25 Am. St. Rep. 582, Mullen v. Sanborn, 79 Md. 364, 29 A. 522, 25 L. R. A. 721, 47 Am. St. Rep. 421, and Central of Georgia Ry. Co. v. Eichberg, 107 Md. 363, 68 A. 690, 14 L. R. A. (N. S.) 389; Long v. Hawken, 114 Md. 234, 79 A. 190, 42 L. R. A. (N. S.) 1101. In the first of these cases, the one upon which the appellee mainly relies, the plaintiff instituted suit in the circuit court for Frederick county against an insurance company incorporated under the laws of the state of New York, and the summons issued against the defendant was returned served on the local agent of the defendant insurance company, and a summons directed and sent by mail to the general agent or attorney of the company, residing in the city of Baltimore, especially appointed to receive process against the company, but whether such summons was ever received by the attorney or agent of the company was a controverted fact in the case. The court there held that, as the statute applicable to foreign insurance companies require them, before doing business in this state, to file with the Insurance Commissioner "a power of attorney appointing a citizen of this state, resident within this state, the agent or attorney for the company upon whom process of law can be served," and as the defendant company in that case had met such requirement, good faith required that the process should have been served upon the attorney so selected and appointed and not upon the local agent. The court in that case dismissed the appeal, but in doing so said:
"The case against the appellee is still pending in the court below, and process may be renewed and properly served in accordance with the provisions of the statute to which we have referred."
In this case, however, the defendant company contends that it is not doing business in the state, and, further, that the party upon whom the process was served was not at such time its agent within the meaning of the statute. In that case the court held that the defendant corporation was doing business in the state of Maryland, and that it could be properly sued in this state, and, further, that there was a party upon whom process could be served, binding upon the defendant corporation. But if it be held under the motion in this case that the defendant company is not doing business in this state, and that R. C. Hoffman & Co. is not the agent of the defendant company as aforesaid, then not only will no action lie against the defendant in this state, but there is no one, as disclosed by the record, upon whom process may be served, binding upon the defendant corporation, in the jurisdiction in which this suit is instituted, and therefore the order sustaining the motion to quash the return is so far final as to prevent the further prosecution of the suit, and thus an appeal will lie from said order to this court.
In the case of Central of Georgia Ry. Co. v. Eichberg, supra, the question here raised was not presented to, nor decided by, this court. That case, however, differs from the case before us in that the motion in that case was overruled and there was nothing, by reason of such ruling, to prevent the further prosecution of the suit. In this case the motion was sustained and the return quashed. The other cases cited contain nothing inconsistent with the conclusion that we have reached.
Section 92 of article 23 of the Code of 1912 provides that:
The defendant company in this case, although coming within the provisions of section 93 of article 23, failed to file with the Secretary of State a certificate, giving "the name and address of its agent, resident in this state, authorized to accept service of process upon it," as required by said section.
The validity of statutes of the character of the one above quoted is generally recognized.
Good Hope Co. v. Railway Barb Fencing Co. (C. C.) 22 F. 635; Lafayette Ins. Co. v. French, 18 How. 404, 15 L.Ed. 451; Conn. Mutual Life Ins. Co. v. Spratley, 172 U.S. 602, 19 S.Ct. 308, 43 L.Ed. 569; St. Clair v. Cox, 106 U.S. 350, 1 S.Ct. 354, 27 L.Ed. 222.
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