Berger v. Pa. R. Co.

• Decision Date: 28 May 1906
• Parties: BERGER v. PENNSYLVANIA R. CO.
• Court: Rhode Island Supreme Court

65 A. 261

27 R.I. 583

BERGER

v. PENNSYLVANIA R. CO.

Supreme Court of Rhode Island.

May 28, 1906.

Action by Jacob Berger against the Pennsylvania Railroad Company. Heard on demurrer to the plea to the jurisdiction for insufficiency of the service of summons. Demurrer overruled, and the plea to the Jurisdiction sustained.

Argued before DOUGLAS, C. J., and DUBOIS, BLODGETT, JOHNSON, and PARKHURST, JJ.

Page, Page & Cushing, for plaintiff. Tillinghast & Murdock, for defendant

PER CURIAM. This is an action originally brought in the district court of the Sixth judicial district by Jacob Berger, a resident of Providence, state of Rhode Island against the Pennsylvania Railroad Company, a foreign corporation having its principal office in Philadelphia, in the state of Pennsylvania, for failing to deliver, in the discharge of its obligations as common carrier, 12 bales of feathers to the plaintiff in Newark, N. J. The declaration alleges that on December 12, 1904, the plaintiff delivered to the New York, New Haven & Hartford Railroad Company, a corporation doing business in Rhode Island, as a common carrier of freight, 12 bales of feathers, consigned, in the bill of lading issued by the said New York, New Haven & Hartford Railroad Company, to the plaintiff at Newark, in the state of New Jersey; that the defendant, the Pennsylvania Railroad Company, a connecting carrier of and with the said New York, New Haven & Hartford Railroad Company, received the said bales of feathers from the said New York, New Haven & Hartford Railroad Company, at some point between said Providence and said Newark, and that it failed to deliver the bales in question to the plaintiff or his authorized agent. Service of the writ of summons was made by copy "at the office of the within-named defendant corporation in the hands and possession of a clerk employed by said defendant within my precinct." The defendant files a plea to the jurisdiction in which it sets forth that the defendant company, a common carrier, is a foreign corporation, having its principal office in Philadelphia in the state of Pennsylvania; that it does not own, control, or operate any line of railroad or other means of transportation in the state of Rhode Island, and that it has no means whatsoever of conducting its said business in said state of Rhode Island; that it has and does solicit, in the state of Rhode Island, freight for ultimate shipment over its lines of railway running from Jersey City in the state of New Jersey; that its district freight solicitor in the state of Rhode Island has an office at No. 4 Westminster street, in the city of Providence, over which is a sign reading "Pennsylvania Railroad Freight Agency"; that the district freight solicitor of the defendant solicits consignors of freight to have their bills of lading direct that freight for points beyond said Jersey City shall be delivered to the corporation at said Jersey City; and that consignors of freight in the state of Rhode Island receive the bill of lading of the New York, New Haven & Hartford Railroad Company.

To this plea the plaintiff demurs, and the question raised is whether or not there has been such service of legal process upon the defendant corporation as to make it answerable to the plaintiff in the courts of this state, in conformity with the provision of Court and Practice Act 1905, p. 155, c. 29, § 526, as follows: "And when a writ of summons shall he issued against a foreign corporation doing business in this state, it shall be served by leaving an attested copy thereof with any clerk or agent in this state of such corporation, or with the attorney of such corporation appointed under the law upon whom service may be made as against such corporation."

The validity of the service of the writ in this case depends upon the question whether the defendant corporation was "doing business" in this state within the meaning of ...