Denver & R.G.R. Co. v. Roller

• Citation: 100 F. 738
• Decision Date: 05 February 1900
• Docket Number: 548.
• Parties: DENVER & R.G.R. CO. v. ROLLER et al.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

100 F. 738

DENVER & R.G.R. CO. v. ROLLER et al.

No. 548.

United States Court of Appeals, Ninth Circuit.

February 5, 1900

Stephen M. White and Charles Monroe (Henry T. Rogers, of counsel) for plaintiff in error.

Lynn Helm, for defendants in error.

Before McKENNA, Circuit Justice, GILBERT, Circuit Judge, and HAWLEY District Judge.

HAWLEY District Judge.

This action was instituted to recover damages for injuries received by Katherine A. Roller, one of the defendants in error, on September 9, 1897, while a passenger on the railroad of plaintiff in error, in a wreck which occurred between a freight train of the Colorado Midland Company and the regular passenger train of the plaintiff in error, a corporation organized under the laws of Colorado. The Colorado Midland Railroad Company owned and operated a railroad extending from Colorado Springs to New Castle. From New Castle to Rifle Creek, it operated its trains over that portion of the Denver & Rio Grande Railroad under a lease from that corporation. The trains of the respective roads were run by the employes of the respective companies under a time-card and rules for running trains prepared by the plaintiff in error. The record shows that the collision in question was caused by the negligence of the employes on the train of the Colorado Midland Railroad Company, and that the plaintiff in error and its employes were entirely free from any negligence in the matter. This action was brought in the superior court for Los Angeles county, state of California. Summons was issued and served upon W. J. Shotwell, who was the agent of the plaintiff in error at San Francisco, Cal., authorized to solicit and contract for passengers and freight to be carried from the state of California over other lines, and then over the railroad of the plaintiff in error in the state of Colorado, and the soliciting and contracting for passengers and freight to be carried from Eastern points through the state of Colorado to the state of California. The plaintiff in error does not own or operate any railroad in the state of California. The cause of action arose wholly within the state of Colorado. After the service of the summons the action was removed by the plaintiff in error from the state court to the circuit court of the United States for the Southern district of California. A motion was then made to quash the summons and dismiss the action upon the ground that neither the circuit court nor the superior court of the state had or have any jurisdiction of the subject-matter of the action, or of the person of the corporation. The court denied this motion and its ruling thereon is made the basis of an assignment of error.

1. Did the court err in refusing to quash the summons? In determining this question it becomes our duty to look prayerfully to the statute of California under which the service of the summons was made. The Code of procedure (section 411), applicable to this case, provides that:

'The summons must be served by delivering a copy thereof, as follows: * * * (2) if the suit is against a foreign corporation, or a non-resident joint stock company or association, doing business and having a managing or business agent, cashier, or secretary within this state, to such agent, cashier, or secretary.'

The plaintiff in error had an office in the city of San Francisco. Upon the windows of this office were signs which read, 'Denver & Rio Grande R.R. Freight and Passenger Office. ' In a folder used and distributed by it for public information, giving the places of its offices and agents, is found the name of 'W. J. Shotwell, Gen'l Agt. Pacific Coast, 314 California St., San Francisco. ' W. J. Shotwell, in his affidavit, says:

'That he is the general agent for the Denver & Rio Grande Railroad Company, a defendant herein, for the states of California and Nevada. * * * That it is true that in his office in San Francisco he and the clerks under him solicit passengers and freight to go over the Denver & Rio Grande Railroad. * * * This affiant endeavors to induce shippers of freight to send it from San Francisco, so that during its route east it will go over the Denver & Rio Grande road. * * * That he issues a shipping receipt or bill of lading for the goods to be shipped from San Francisco. * * * That his only employment is for the purpose of soliciting freight and passenger business, and in influencing shippers and passengers to ship their freight and to travel over the Denver & Rio Grande road in the state of Colorado.'

It thus clearly appears that the plaintiff in error had a business office in the city of San Francisco, state of California, and a managing agent in charge of that office, for the purpose of soliciting business in transporting passengers and freight over its road, situated in the state of Colorado. Is not this sufficient to authorize a valid service of summons upon the authorized agent of the corporation? It will be noticed that, if there is no cashier or secretary upon whom service can be made, the Code does not specify the extent of the agency required in order to bind a nonresident corporation by service of summons, except that the person must be a 'managing or business agent.' It is obvious that this does not mean that it must be the general managing agent of the corporation. The object of the service is attained when the agent served is of sufficient rank and character as to make it reasonably certain that the corporation will be notified of the service, and the statute is complied with it he be a managing or business agent in any specified line of business transacted by the corporation in the state where the service is made. That Shotwell, upon whom the service was made, was such an agent, is manifest from the facts above stated.

In Tuchband v. Railroad Co., 115 N.Y. 437, 440, 22 N.E. 361, the court said:

'When the corporation has an office in this state, where a substantial portion of its business is transacted by a person designated by itself as a general agent, although followed by words indicating some one department, it may safely be assumed that the object of the statute will be accomplished. If, of course, intends a 'managing agent' in this state, and, where a corporation created by the laws of any other state does business in this state, 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 this 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. Such person is, in every sense of the words used in the statute, 'a managing agent."

In Merchants' Mfg. Co. v. Grand Trunk Ry. Co. (C.C.) 13 F. 358, the court said:

'A corporation, although it cannot migrate beyond the limits of the sovereignty which has created it, may be comity exercise its franchise elsewhere. A foreign corporation can transact business here upon such conditions as may be imposed upon it by the laws of this state. It can be sued whenever the technical obstacles in the way of compelling its appearance do not exist. At common law, process must be served on its principal officer within the jurisdiction of the sovereignty where the corporate body exists. But it can waive this requirement, and consent to be served in a different manner, and when it does this it stands on the same footing with a natural person. When it avails itself of the privileges of doing business in a state whose laws authorize it to be sued there by service of process upon an agent, its assent to that mode of service is implied. Accordingly it has been repeatedly held that a foreign corporation consents to be amenable to suit by such mode of service as the laws of the state provide, when it invokes the comity of the state for the transaction of its affairs. Insurance Co. v. French, 18 How. 404, 15 L.Ed. 451; Railroad Co. v. Harris, 12 Wall. 81, 20 L.Ed. 354; Ex parte Schollenberger, 96 U.S. 369, 24 L.Ed. 853. It waives the right to object to the mode of service of process which the state laws authorize.'

See, also, Railroad Co. v. Estill, 147 U.S. 591, 596, 606, 13 Sup.Ct. 444, 37 L.Ed. 292; Van Dresser v. Navigation Co. (C.C.) 48 F. 202; Norton v. Railroad Co. (C.C.) 61 F. 6418; Palmer v. Herald Co. (C.C.) 70 F. 886; Foster v. Lumber Co., 5 S.D. 57, 68, 58 N.W. 9, 23 L.R.A. 490; Palmer v. Pennsylvania Co., 35 Hun, 369; McNichol v. Agency, 74 Mo. 457; Stone v. Insurance Co., 78 Mo. 655, 658.

2. Did the courts in California have jurisdiction of the subject-matter of this action? This question is dependent to a great extent upon the conclusions already reached as to the validity of the service of the summons. The Code of Civil Procedure of California, in treating of the place of trial of civil actions, specifies (1) certain civil actions that are to be tried in the county in which the subject of the action or some part thereof, is situated; (2) of other actions, where the cause, or some part, arose in the county; (3) of the place of trial of actions against counties. Then comes section 395, as to the place of trial of other actions according to the residence of the parties. In this section we find that 'if none of the defendants reside in the state * * * the same may be tried in any county which the plaintiff may designate in his complaint. ' It will be observed, by a careful reading of the statute, that actions of the nature and character of the one under consideration are not mentioned in the list of actions that must be tried where the subject of the action is situate, or where the cause of action arose. The contention of the plaintiff in error is that the...