Denver-Chicago Trucking Co. v. Lindeman, Civ. No. 290.

• Court: United States District Courts. 8th Circuit. Northern District of Iowa
• Writing for the Court: GRAVEN
• Citation: 73 F. Supp. 925
• Parties: DENVER-CHICAGO TRUCKING CO., Inc. v. LINDEMAN.
• Docket Number: Civ. No. 290.
• Decision Date: 17 October 1947

73 F. Supp. 925

DENVER-CHICAGO TRUCKING CO., Inc.
v.
LINDEMAN.

Civ. No. 290.

District Court, N. D. Iowa, Cedar Rapids Division.

October 17, 1947.

73 F. Supp. 926

Elliott, Shuttleworth & Ingersoll, of Cedar Rapids, Iowa, for plaintiff.

J. H. Milroy, of Vinton, Iowa, Whitfield, Musgrave, Selvy & Fillmore, of Des Moines, Iowa; and Donnelly, Lynch & Dallas, of Cedar Rapids, Iowa, for defendant.

GRAVEN, District Judge.

Case involving statute of limitations as related to foreign corporations and involving the effect upon claimant's rights against the owner of a car involved in a motor vehicle mishap of claimant's failure to file claim against the estate of the non-owner driver of the car.

The plaintiff Denver-Chicago Trucking Company is a Nebraska corporation engaged in the interstate transportation of freight by motor. The defendant Howard Lindeman is a resident and citizen of the State of Iowa engaged in the transportation of freight by motor. On September 26, 1943, on a highway near Cedar Rapids, Iowa, a collision occurred between a tractor-trailer owned by the plaintiff and a tractor-trailer owned by the defendant. At the time of the collision, the two tractor-trailers were being driven by employees of the respective owners with their knowledge and consent. C. H. Stewart was the driver of the plaintiff's tractor-trailer and Walter Long was the driver of the defendant's tractor-trailer. Walter Long died on September 26, 1943, allegedly as a result of injuries received in the collision. Walter Long died intestate a resident of Benton County, Iowa. On July 10, 1945, Hazel A. Sauer, a resident and citizen of Iowa, was by the District Court of Iowa in and for Benton County appointed administratrix of his estate. On July 12, 1945, pursuant to court order, the claim of Hazel A. Sauer as administratrix against the Denver-Chicago Trucking Company for the alleged wrongful death of Walter Long was assigned to the defendant for purposes of collection. In this case, jurisdiction is based upon diversity of citizenship.

In these proceedings, the plaintiff and the defendant each in their own behalf sought recovery against the other for tractor-trailer and cargo damage occasioned by the collision. In addition, the defendant as an assignee for collection seeks to recover from the plaintiff for the alleged wrongful death of Walter Long. The defendant contends that he was released from liability upon plaintiff's claim for tractor-trailer and cargo damage because of the failure of the plaintiff to file a claim therefor against the estate of Walter Long. The plaintiff contends that the claim for the alleged wrongful death of Walter Long is barred by the applicable Iowa statute of limitation. A hearing was had at which the parties introduced their evidence bearing upon those issues and those issues were submitted for decision. The other issues in the case have not, as yet, been heard.

Section 614.1(3), Code of Iowa 1946, provides that actions for injuries to the person must be brought within two years. Section 614.1(5), Code of Iowa 1946, provides that actions for injuries to property must be brought within five years. Section

73 F. Supp. 927

614.6, Code of Iowa 1946, provides that the time during which a "defendant is a nonresident of the state shall not be included in computing any of the periods of limitation."

The plaintiff's complaint in this case was filed on January 16, 1947. Following the filing of that complaint, the defendant set up the claim now asserted in its own behalf and the claim now asserted as assigned for collection. Previous thereto, no action had been brought on either of those claims. Since the collision took place on September 26, 1943, the claim for the death of Walter Long would have been barred under the Iowa two-year limitation statute above referred to on September 26, 1945, unless the running of that statute was suspended. It is the contention of the defendant that since the plaintiff has at all times been a foreign corporation, it has always been a nonresident of the state and that hence the statute of limitation never commenced to run as to the claim for the death of Walter Long. The statute of limitations is not involved as to the claims of the parties for property damage as the five year period for such claims has not run.

The plaintiff has at all times been a foreign corporation with its designated principal place of business at Omaha, Nebraska. It is engaged in the interstate transportation of freight by motor on a large scale. Its motor transport line runs from Chicago, Illinois to Denver, Colorado. That line is divided into four divisions with a divisional office for each division. The division known as the Cedar Rapids Division extends from Rock Falls, Illinois, to Grand Junction, Iowa. The divisional office for that division is located at Cedar Rapids, Iowa. Prior to 1943, the plaintiff built a building in Cedar Rapids, Iowa, for use as a divisional office and at all times since March 29, 1943, has maintained a divisional office in the building at that place. The plaintiff operates from 10 to 12 trucks each way each day over its line. At all times since March 29, 1943, the Cedar Rapids divisional office has been in charge of a resident divisional manager. The divisional manager employs and dismisses drivers, mechanics, attendants and other members of the divisional staff. He purchases gasoline, tires, oil, and other supplies needed to maintain the plaintiff's trucks. The local divisional manager has supervision over a staff of approximately 50 people. The divisional staff consists of drivers, mechanics, attendants and others. The members of the staff reside in Cedar Rapids. The drivers work out of Cedar Rapids and the rest of the staff work at Cedar Rapids serving and maintaining the plaintiff's trucks and handling its business. The divisional office of the plaintiff at Cedar Rapids is open 24 hours a day. The divisional office maintained by the plaintiff at Cedar Rapids is somewhat analogous to a railroad division point.

Under Chapter 494, Code of Iowa 1946, it is provided that any foreign corporation desiring to transact business in Iowa must first secure a permit to so do. In order to secure such permit, the foreign corporation must designate a resident agent upon whom service of notice of suit can be made. That Chapter further provides that if a foreign corporation does not designate such resident agent, or in the event that such resident agent cannot be found within the state, then service of notice of suit may be made upon the Secretary of State of Iowa. It is further provided in that Chapter that service made upon such resident agent shall have the same force and effect as though service were made within the County where the suit was brought. The plaintiff qualified to transact business in Iowa on March 29, 1943, and was issued a permit to so do. In connection with such qualification, the plaintiff designated George Cosson of Des Moines, Polk County, Iowa, as its resident agent for the service of notice of suit. The plaintiff's permit to transact business in Iowa and its designation of George Cosson as its resident agent for service, have continued in full force and effect at all times since March 29, 1943. Under the provisions of Chapter 617, Code of Iowa 1946, (Secs. 617.3, 617.6 and Rule 56, Iowa Rules of Civil Procedure) service of notice of suit may be made upon a foreign corporation by serving its general agent, or by serving any agent or other person transacting its business in the state. It would seem to be the Iowa rule that a foreign corporation

73 F. Supp. 928

having secured a permit to transact business in the state cannot by withdrawing from the state absolve itself from being sued in the state upon claims which arose out of its transacting business in the state prior to such withdrawal. McClamroch v. Southern Surety Co., 1922, 193 Iowa 249, 187 N.W. 41. See also Darling Stores Corporation v. Young Realty Co., 8 Cir., 1941, 121 F.2d 112, certiorari denied 1941, 314 U.S. 658, 62 S.C. 111, 86 L.Ed. 527. At all times, from and including September 26, 1943, there has been in effect Sections 321.498 and 321.499 of the Code of Iowa 1946, which provides as follows

321.498 Legal effect of use and operation.

"The use and operation of a motor vehicle in this state on the public highways thereof by a person who is a nonresident of this state shall be deemed:

"1. An agreement by him that he shall be subject to the jurisdiction of the district court of this state over all civil actions and proceedings against him for damages to person or property growing or arising out of such use and operation, and

"2. An appointment by such nonresident of the commissioner of the public safety department of this state as his lawful attorney upon whom may be served all original notices of suit pertaining to such actions and proceedings, and

"3. An agreement by such nonresident that any original notice of suit so served shall be of the same legal force and validity as if personally served on him in this state."

321.499 "Person" defined.

"The term `person', as used in section 321.498 shall mean:

"1. The owner of the vehicle whether it is being used and operated personally by said owner, or by his agent.

"2. An agent using and operating the vehicle for his principal.

"3. Any person who is in charge of the vehicle and of the use and operation thereof with the express or implied consent of the owner.

"4. The executor or administrator of the estate of the owner or operator of the motor vehicle."

State statutes tolling the running of statutes of limitation during periods of non-residence or absence are common. Such statutes were obviously enacted because of the problem presented to a local claimant in the matter of the service of notice of suit during such periods. It would obviously be unfair to such a claimant to have a local statute of limitations run against his claim when...