Allen v. Yellowstone Park Transp. Co.

• Decision Date: 20 May 1907
• Docket Number: 5,423.
• Citation: 154 F. 504
• Parties: ALLEN v. YELLOWSTONE PARK TRANSP. CO.
• Court: U.S. District Court — Eastern District of Missouri

154 F. 504

ALLEN v. YELLOWSTONE PARK TRANSP. CO.

No. 5,423.

United States Circuit Court, E.D. Missouri, Eastern Division.

May 20, 1907

Jones Jones, Hocker & Davis, for the motion.

Johnson Houts, Marlatt & Hawes, opposed.

DYER District Judge.

This suit was brought in the circuit court of the city of St Louis, and upon application of the defendant was removed to this court on the ground that it involved a controversy between citizens of different states.

The petition alleges that defendant is a corporation organized under the laws of the state of Montana, and is engaged in the business of transporting passengers and baggage for hire as a common carrier throughout the Yellowstone National Park in the state of Wyoming, and between the different places of interest and the various hotels in said park, and that at said times defendant maintained and still maintains agents in the city of St. Louis and other places in the state of Missouri for the purpose of selling tickets, good for passage over its said lines of transportation, and for the purpose of inducing persons to journey to said park and over the lines of transportation owned and operated by it in said Yellowstone National Park. That said transportation facilities consisted of buses or coaches drawn by horses or mules under the control of and driven by the servants of the defendant. That, while the plaintiff was riding in one of said buses (which was driven by the servants of the defendant), the same was through the negligence of the driver overturned and the plaintiff injured. The defendant appeared in the state court, for the purpose only of having the case removed to this court. The removal was ordered. The return of service by the sheriff of the city of St. Louis in the case was and is as follows:

'Executed this writ in the city of St. Louis, Missouri, this 18th day of January, 1907, by delivering a copy of the writ and petition to the Chicago, Burlington & Quincy Railway Company, a corporation, agent of the within named defendant, by delivering a copy of the said writ and petition to T. K. Knight, chief clerk of said Chicago, Burlington & Quincy Railway Company, a corporation, in charge of the main office of said Chicago, Burlington & Quincy Railway Company, a corporation, in said city of St. Louis, the president or other chief officer of said Chicago, Burlington & Quincy Railway Company, a corporation, being at the time absent; and said defendant, Yellowstone Park Transportation Company, being a foreign corporation and having no office or place of business in the state of Missouri.'

The defendant appears in this court for the purpose only (as stated in its motion) of moving to quash the return of service so had. The grounds assigned in the motion to quash are as follows: First. That the defendant is a corporation organized under the laws of the state of Montana, and is not doing, nor has it license to do, business in the state of Missouri; and it does not appear from said return, or the record herein, that the defendant is doing business in the state of Missouri; that, on the contrary, it does appear that defendant is not doing business in said state. Second. The return that service was had upon an 'agent' of this defendant is a mere conclusion on the part of the officer making such service, and the character of the agency of the alleged agent upon whom the service was made does not appear. Third. That it appears that the service was had upon the Chicago, Burlington & Quincy Railway Company, a corporation, not the defendant herein, and that such corporation cannot be the agent of the defendant for the service of process upon defendant. Fourth. That the return is in terms that the service and summons herein was had upon 'The Chicago, Burlington & Quincy Railway Company, a corporation, agent of the within-named defendant,' without showing what kind of an agent said Chicago, Burlington & Quincy Railway Company is. Fifth. That the said Chicago, Burlington & Quincy is not the agent of the defendant. Sixth. That to require the defendant to appear upon such service or to proceed thereon to judgment in this cause would deprive this defendant of its property without due process of law, and deny to it the equal protection of the laws, contrary to the immunities secured to it by the fourteenth amendment of the Constitution of the United States, contrary to section 30, art. 2, of the Constitution of Missouri, and deny to it the privileges and immunities of citizens of Missouri secured to it by section 2, art. 4, of the Constitution of the United States. Seventh. That there is and has been no voluntary appearance herein by the defendant, and there is and has been no personal service of summons upon the defendant or levy of an attachment upon its property.

Section 570 of the Revised Statutes of Missouri of 1899 (Ann. St. 1906, p. 597) is as follows:

'Sec. 570. Writ, How Served on Persons and Foreign Corporations.-- A summons shall be executed, except as otherwise provided by law, either: First, by reading the writ to the defendant and delivering to him a copy of the petition, or, second by delivering to him a copy of the

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