Carmack v. Panama Coca Cola Bottling Co.

• Decision Date: 10 August 1951
• Docket Number: No. 13470.,13470.
• Citation: 30 ALR 2d 281,190 F.2d 382
• Parties: CARMACK et al. v. PANAMA COCA COLA BOTTLING CO.
• Court: U.S. Court of Appeals — Fifth Circuit

30 ALR 2d 281, 190 F.2d 382 (1951)

CARMACK et al. v. PANAMA COCA COLA BOTTLING CO.

No. 13470.

United States Court of Appeals Fifth Circuit.

July 17, 1951.

Rehearing Denied August 10, 1951.

Donald J. McNevin, Ancon, Canal Zone, for appellant.

Cicero C. Sessions, Richard B. Montgomery, Jr., New Orleans, La., Gilberto Arias, Harmodio Arias, Panama City, Rep. of Panama, L. S. Carrington, Ancon, Canal Zone, for respondent.

Before HOLMES, BORAH, and RIVES, Circuit Judges.

BORAH, Circuit Judge.

The plaintiff, Peggy Ruth Carmack, and her husband, Ralph E. Carmack, brought this suit in the United States District Court for the District of the Canal Zone against the defendant, Panama Coca Cola Bottling Company, to recover damages for injuries resulting from an accident which occurred in the City of Colon in the Republic of Panama when a truck owned by defendant and operated by its agent negligently ran into and injured Peggy Ruth Carmack. It is alleged that plaintiffs are citizens of the United States and residents of the Canal Zone; that the defendant is a corporation organized and existing under the laws of the Republic of Panama with its home office in Panama City, Panama; that it was doing business in the Canal Zone and had property within the jurisdiction of the court; and that it had designated the executive secretary of the Panama Canal as its agent for service of process.

Upon the filing of suit a summons was issued and service was made upon the executive secretary. Whereupon the defendant appearing specially and before answer moved to quash the service on the ground that its designation of an agent to accept service of process was intended to cover only causes against defendant arising within the Canal Zone and did not extend to receiving service in suits on causes of action arising elsewhere. The court sustained the motion. Thereafter an amended complaint was filed and an alias summons was issued and served on one Calloway, who had in the meantime been appointed defendant's agent for service of process. A motion to quash the alias process was filed by the defendant and this motion, which was based on the same grounds as were asserted in the original motion, was likewise sustained by the court.

Appealing from the orders of the court sustaining the successive motions to quash service plaintiffs are here insisting that the defendant was properly served in both instances, that the court had jurisdiction of the person of the corporation and had the power to adjudicate the cause.

At the outset we are confronted with a motion to dismiss the appeal which we have considered along with the merits of the case and to that motion we now direct our attention for if it is meritorious we may proceed no further. The motion grounds asserted are twofold. First, that the court did not enter an order or decree quashing the alias summons and in consequence there was nothing from which an appeal could be taken. Second, that if the court's opinion is to be considered as a decree it is still not a final decree from which an appeal can be taken. We find no merit in either contention. The writing which appellee characterizes as an opinion shows on its face that it is an "order" and it is expressly denominated as such. Though somewhat unorthodox in form, it does reflect what it purports to be and its concluding language is "with exceptions to plaintiff." One of the grounds urged in support of the motion to quash is that the defendant has no place of business or office or property of any kind within the Canal Zone. If this allegation is correct, and the defendant may not gainsay its truthfulness, plaintiff is without redress unless an appeal lies from the order of the court below. We think it clear that the order quashing the summons is so far final as to prevent the further prosecution of suit and that consequently the order is appealable and the cause is properly here. Rosenberg Bros. & Co. v. Curtis Brown, 260 U.S. 516, 43 S.Ct. 170, 67 L.Ed. 372; Henderson v. Richardson Co., 4 Cir., 25 F.2d 225. The motion to dismiss the appeal should therefore be overruled.

The District Court of the Canal Zone,¹ a court of general jurisdiction, is empowered to try all cases in equity and all actions at law involving principal sums exceeding five hundred dollars subject only to the limitations set forth in the margin.²

Title 3, Section 221 of the Code, to the extent here pertinent, provides: "No corporation organized under the laws of any State or Territory of the United States or of any foreign country shall do business in the Canal Zone or maintain an office therein until it shall have filed with the executive secretary of the Panama Canal:

"(a) An application for a license setting forth the name of the corporation, the names of its officers and directors, and a statement showing the general nature of the business in which it desires to engage in the Canal Zone; * * *

"(d) Every corporation must, at the time of filing its application, file in the office of the executive secretary a designation of some person residing within the Canal Zone and the place of business or residence of such person upon whom process issued by authority of or under any law of the Canal Zone may be served. * * * Process may be served on the person so designated, or, in the event that such person cannot be found at the place designated or in the event that no such person is designated, then on the executive secretary of the Panama Canal, or his successor in office, and such service shall be a valid service on such corporation. * * *"

The appellee does not question the validity of the service on its agent but insists that the court below was right in holding that it had no jurisdiction over the person of the defendant corporation. Cases such as Louisville & N. R. Co. v. Chatters, 279 U.S. 320, 49 S.Ct. 329, 73 L.Ed. 711, and Simon v. Southern Railway, 236 U.S. 115, 35 S.Ct. 255, 59 L.Ed. 492, on which appellee relies, are not controlling in that they involve the question of state and not federal jurisdiction. The question there involved was whether a foreign corporation could be subjected to state jurisdiction by force of state statutes when the cause of action arose outside of the state. But here the jurisdiction of the federal court was not created by, and does not depend upon, the statutes of the several states. Barrow Steamship Co. v. Kane, 170 U.S. 100, 111, 18 S.Ct. 526, 42 L.Ed. 964. It is to be...