Brown v. Chicago, Milwaukee & St. Paul Railway Company

• Decision Date: 16 May 1903
• Citation: 95 N.W. 153,12 N.D. 61
• Court: North Dakota Supreme Court

95 N.W. 153

12 N.D. 61

MARGARET ANN BROWN v. THE CHICAGO, MILWAUKEE & ST. PAUL RAILWAY COMPANY

Supreme Court of North Dakota

May 16, 1903

Appeal from District Court, Stutsman County; Glaspell, J.

Action by Margaret Ann Brown against the Chicago, Milwaukee & St Paul Railway Company to recover for personal injuries. Verdict and judgment for plaintiff, and defendant appeals.

Reversed.

Judgment reversed. Appellant recovered costs.

H. H Field and Ball, Watson & Maclay, for appellant.

Section 3263, and subdivisions 5 and 6, of section 5252, afford methods of serving process on a foreign corporation. If a foreign corporation has empowered the secretary of state to receive service, then process, if not served upon him, must be served on a managing agent. But the rule is relaxed as to corporations which have not complied with section 3263. If the cause of action arose in this state, service may be made on any person transacting the principal's business here. By the weight of authority in states, where service must be made upon the managing agent, service upon a station agent is not sufficient. Doty v. Railroad, 8 Abb. N.Y. 427; Brewster v. Railroad, 5 How. Pr. 183, 19 Enc. Pl. & Pr. 680, et seq; Foster v. Charles Betcher Lumber Co., 58 N.W. 9; 6 R. & M. Ry. Digest, 1093, et seq; Vitola v. Publishing Co. , 73 N.Y. 273.

The right of one party to an action to compel another to submit to a physical examination presents a new question in this jurisdiction. The Federal Supreme Court, Justices Brewer and Brown dissenting, now stand alone in denial of the power. (Union Pacific Ry. Co. v. Botsford, 141 U.S. 258, 11 Cup. Ct. Rep. 1003, 35 L.Ed. 740). City of South Bend v Turner, 60 N.E. 271. As pointed out in City of South Bend v. Turner, supra, the power to order an examination has been upheld in Alabama, Arkansas, Georgia, Kansas, Kentucky, Michigan, Missouri, Minnesota, Nebraska, Pennsylvania, Ohio, Texas, Wisconsin, Illinois and Washington. The following cases also support the rule: Railroad v. Simpson, 64 S.W. 733; Lane v. Spokane Falls & N. Ry. Co., 57 P. 367; Wanek v. Winona, 80 N.W. 851; Contra. McGuigan v. Delaware L. & W. R. Co., 29 N.E. 235; Galveston v. Railroad, 67 S.W. 776; Stack v. New York, N. H. & H. R. Co., 58 N.E. 686; Mills v. Railroad, 40 A. 1114.

Lee Combs, for respondent.

The provisions of the statute permitting service of process on the secretary of state, is not exclusive. Subdivision 5 of section 5252, declares that service may be made on the secretary of state, "or upon the managing agent," of the corporation. This settles the controversy that, notwithstanding the appointment of the secretary of state service could be lawfully made upon such managing agent within the state. The defendant's ticket agent at Fargo, N.D. was a "managing agent." Cases cited by appellant in support of the claim, that a station agent is not a "managing agent" have been overruled by later and better considered cases in the same court. Tuchband v. Chicago & Alton R. Co., 115 N.Y. 438, 22 N.E. 360. That the station agent of a railroad company is a "managing agent," is held in Foster v. Charles Betcher Lumber Co., 58 N.W. (S. D.) 9; Express Co. v. Johnson, 17 Ohio St. 641; McAllister v. Ins. Co., 28 Mo. 214; White Lake Lbr. Co. v. Stone, 27 N.W. 395. Sufficiency of service of process on defendant is set at rest by subsequent general appearance of the defendant; and his special, was subsequently converted into a general appearance, by his seeking affirmative relief. Belknap v. Charlton et al., 25 Ore. 41, 34 P. 758; Coad v. Coad, 41 Wis. 26; Blackburn v. Sweet, 38 Wis. 578; Pry v. Hannibal, etc., R. Co., 35 W.Va. 438; Handy v. Ins. Co. 37 Ohio St. 366; Bucklin et al. v. Strickler, 32 Neb. 602, 49 N.W. 371; Aultman v. Steinan, 8 Neb. 109; Burdette v. Corgan, 26 Kan. 102; Lowe v. Stringham, 14 Wis. 241; see also Lyon v. Miller, 2 N.D. 1, 48 N.W. 314. The latter case is distinguishable from Miner v. Francis, 3 N.D. 549, 58 N.W. 343. If the court is asked to determine questions touching the merits, a special appearance will operate as a general appearance. Gans v. Beasley et al., 4 N.D. 140, 59 N.W. 714; Benoit v. Revoir, 8 N.D. 226, 77 N.W. 605; Yorke v. Yorke, 3 N.D. 343, 55 N.W. 1095.

The court below did not err in denying appellant's motion to compel respondent to submit her person to a physical examination by defendant's physician, because it had no power to make such order. If it had such power it was a discretionary one, and there was no abuse of discretion in denying the motion. Parker v. Enslow, 102 Ill. 272; Pensylvania Co. v. Newmeyer, 28 N.E. 860; Philadelphia Ry. v. State, 58 Md. 372; Lloyd v. Hannibal, etc., R. Co., 53 Mo. 509; McQuigan v. Delaware, etc., R. Co., 129 N.Y. 50; Union Pac. R. Co. v. Botsford, 141 U.S. 258, 11 S.Ct. 1003, 35 L.Ed. 740. Where the right exists, the application is addressed to the sound discretion of the court, and the exercise of such discretion will not be interfered with except in case of manifest abuse. Gulf, etc., R. Co. v. Norfleet, 78 Tex. 321; O'Brien v. City of LaCrosse, 75 N.W. 81; St. Louis Bridge Co. v. Miller, 28 N.E. 1091; Richmond, etc., v. Childress, 82 Ga. 719; Belt Electric Line Co. v. Allen (Ky) 44 S.W. 89; Strudgeon v. Village of Sand Beach, 65 N.W. 616; Hatfield v. St. P. & D. R. Co., 22 N.W. 176. Where the power exists, the application must be made with diligence, and when made upon trial, should be refused. Atchinson, etc., R. v. Thul, 29 Kas. 466; Kinney v. Springfield, 35 Mo.App. 97; So. Kan. R. Co. v. Michaels, 46 P. 938; Terre Haute, etc., R. Co. v. Brunker, 26 N.E. 178; Bagley v. Mason, 69 Vt. 175. Where the power exists it is one to be exercised in view of the peculiar features of each case. If the sense of delicacy of the party to be examined, may be offended, or where the testimony may be only cumulative, or where the necessities of the case do not require it, or where the health of the person examined may be endangered, it is no error for the court to deny the application, and the appellate court will not reverse its action. Graves v. City of Battle Creek, 54 N.W. 757; Smith v. City of Spokane, 47 P. 888; Owens v. Kansas City R. R. Co., 33 Am. & Eng. R. R. Cases, 524, S. C. 6 Am. St. Rep. 39; Thompson on Trials, section 859.

OPINION

COCHRANE, J.

The defendant, a foreign corporation, appeared specially in this case, and moved to set aside the service of the summons and complaint because W. H. Gross, the person on whom the service was made, was not a managing agent within the meaning of the statute, and consequently, that service upon said Gross was not service upon the defendant corporation. In support of its motion, defendant presented the affidavit of one of its attorneys, setting forth that the only service of summons and complaint in this action was that made upon W. H. Gross, who, at the date of such service, was local station agent for defendant at the city of Fargo, in Cass county, N.D. That the defendant in January, 1896, pursuant to the requirements of section 3263, Rev. Codes, 1899, filed its irrevocable certificate in the office of the secretary of state appointing such secretary of state and his successors its true and lawful attorneys upon whom all process in any action or proceeding against it might be served, and stipulating therein that service of process upon its said attorney should be of the same force and validity as if served upon it personally in this state. That the defendant did not own any property or have any office in the county of Stutsman. That W. H. Gross, its station agent at Fargo, on whom service was made, had authority to act for it in the sale of passenger tickets for the carriage of passengers, and to collect pay for tickets so sold, to receive and deliver freight, and to collect unpaid charges for freight carried on said railway, with necessary incidental authority for the execution of the above powers, but with no other or further authority to represent it as agent.

This motion presents the question whether the station agent of a foreign railway corporation doing business within this state is a managing agent within the meaning of subdivision 5 section 5252, Rev. Codes 1899, which provides that the summons in a civil action may be served upon a foreign corporation by delivering a copy thereof to the secretary of state, or to the president, secretary, cashier, treasurer, a director, or managing agent thereof, if within the state, doing business for the defendant. We agree with the trial court that Mr. Gross was enough of a managing agent for defendant to sustain this service. He transacted freight and passenger business for it at its Fargo station or office. "The person who, as its agent, does that business, should be considered its managing agent; and more especially should that be so where the foreign corporation has an office or place of business in the state; and when that office is in charge of that person, and he there acts for the corporation, he is there doing business for it, and so manages its business." Tuchband v. Ry. Co., 115 N.Y. 437 at 440, 22 N.E. 360. "An agent who is invested with the general conduct and control, at a particular place, of the business of a corporation, is a managing agent within the meaning of the Code, which authorizes service of summons on a managing agent of a foreign corporation." Porter v. Ry. Co., 1 Neb. 14; American Ex. Co. v. Johnson, 17 Ohio St. 641; Foster v. Lumber Co., 5 S.D. 57, 58 N.W. 9, 23 L. R. A. 490, 49 Am. St. Rep. 859. Every object of the service is attained when the agent served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made. The statute is satisfied if he be a managing agent to any extent. Palmer v....