Fulton v. Southern Pacific Company, Civ. No. 1517.

• Decision Date: 03 December 1970
• Docket Number: Civ. No. 1517.
• Citation: 320 F. Supp. 45
• Parties: R. H. FULTON, d/b/a R. H. Fulton, Contractor, Plaintiff, v. SOUTHERN PACIFIC COMPANY, Chicago, Rock Island and Pacific Railroad Company, and Soo Line Railroad Company, Defendants.
• Court: U.S. District Court — Western District of Missouri

320 F. Supp. 45

R. H. FULTON, d/b/a R. H. Fulton, Contractor, Plaintiff, v. SOUTHERN PACIFIC COMPANY, Chicago, Rock Island and Pacific Railroad Company, and Soo Line Railroad Company, Defendants.

Civ. No. 1517.

United States District Court, W. D. Missouri, St. Joseph Division.

December 3, 1970.

Anderson, Edwards & Warnick, Lubbock, Tex., Thompson, Knight, Simmons & Bullion, David Ford Hunt and Holloway & Hunt, Dallas, Tex., Strop, Watkins, Roberts & Hale, St. Joseph, Mo., Sprinkle, Carter, Larson & Hanna, Kansas City, Mo., for plaintiff.

Underwood, Wilson, Sutton, Heare & Berry, Amarillo, Tex., Shannon, Gracey, Ratliff & Miller, Fort Worth, Tex., James, McCanse & Larson, Kansas City, Mo., for Chicago, Rock Island & Pacific.

Sprague, Wilcox & Houts, St. Joseph, Mo., Watson, Ess, Marshall & Enggas, Kansas City, Mo., for Southern Pacific Co.

Brown, Douglas & Brown, St. Joseph, Mo., for Soo Line Railroad Co.

MEMORANDUM AND ORDER OVERRULING MOTION OF DEFENDANT SOO LINE RAILROAD COMPANY TO QUASH SERVICE AND TO DISMISS FOR LACK OF JURISDICTION.

DUNCAN, Senior District Judge.

Plaintiff, a resident and citizen of the State of Texas, instituted this suit on November 22, 1968, in the Northern District of Texas, Lubbock Division against the Southern Pacific Company, a Delaware corporation, with its principal place of business in the State of California, and the Chicago, Rock Island & Pacific Railroad Company, also a Delaware corporation, with its principal place of business in Illinois, to recover damages for the loss and damage of certain construction equipment valued at more than $750,000.00, while in transit and in the possession of the defendant Chicago, Rock Island & Pacific Railroad Company.

The case was transferred to the St. Joseph Division of the Western District of Missouri, the district in which the damage is alleged to have occurred, upon motion of the defendant Chicago, Rock Island & Pacific Railroad Company, under the provisions of Title 28 § 1404(a) U.S.C.A.

On April 28, 1970, the plaintiff filed an Amended Complaint joining the Soo Line Railroad Company, a Minnesota Corporation, with its principal place of business in Minneapolis, Minnesota, as a party defendant. Service was had on it on May 11, 1970, by serving R. J. Baker, its treasurer, in the State of Minnesota, under the Missouri Long Arm Service Statute, 506.500, 506.510, 351.633 R.S. Mo., V.A.M.S., and under Rule 4 Fed.R. Civ.P.

A motion to quash the service was filed by the Soo Line on the ground that it did not do business in the State of Missouri, and therefore, it was not properly served under the Long Arm Service Statute of Missouri.

On August 7, 1970, following a conference between the court and counsel, the plaintiff filed a Second Amended Complaint, and service was again had upon the Soo Line in the State of Minnesota under the above numbered statutes. The Second Amended Complaint alleged that the Soo Line maintained an office in St. Louis, Missouri, one in Overland Park, Kansas, and one in East St. Louis, Illinois. Also that it made "daily business calls in the State of Missouri for purposes of soliciting business and performing * * * duties in connection with the shipment of equipment and materials by Soo Line Railroad Company as originating carrier through the State of Missouri." The defendant Soo Line again filed motion to quash on the ground that it had not been properly served under the statutes cited above.

Affidavits were filed by the defendant Soo Line stating that although it maintained an office in the State of Missouri, and one in the State of Kansas, that no contracts were made in the State of Missouri. The affidavits clearly show that no contract or any other negotiation of any kind or character has been made in the State of Missouri, in connection with the shipment that is the basis of the controversy in this case.

The Second Amended Complaint further states that the defendant Soo Line has committed a tort in the State of Missouri and is therefore amenable to service under the Missouri Long Arm Service Statute. Specifically, the plaintiff alleges that the Soo Line "for good and valuable consideration agreed to prepare said machinery for shipment in a manner that would enable it to be safely delivered by the terminating carrier" and that as a result of the negligence of the defendant Soo Line Railroad the plaintiff's equipment was lost, damaged and destroyed. The specific acts of negligence of the Soo Line directly causing the damages are alleged as follows:

"1. In improperly supervising the loading of Plaintiff's equipment.

2. In failing to properly load, tie and tighten Plaintiff's equipment.

3. In failing to make a proper inspection of Plaintiff's equipment either before or after issuing its bills of lading, and before permitting said equipment and machinery to commence transportation.

4. In failing to maintain a proper lookout for instructions, warnings and other advice of Plaintiff given either orally or in writing, or contained upon Plaintiff's equipment.

5. In failing to insert a safety bolt into Plaintiff's equipment.

6. In failing to attach a `wide load' sign in connection with the shipment of Plaintiff's equipment.

7. In failing to properly advise other carriers of a wide load.

8. In failing to see if the width of the bridges through which Plaintiff's equipment would pass was sufficient.

9. In failing to advise Plaintiff of the minimum clearance on bridges through which his equipment would pass.

10. In not contacting the appropriate supervisors for aid or assistance in loading, tying and inspecting Plaintiff's equipment."

Section 506.500 R.S.Mo., V.A.M.S. provides that:

"Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any such acts:

(1) The transaction of any business within this state;

(2) The making of any contract within this state;

(3) The commission of a tortious act within this state (4) The ownership, use, or possession of any real estate situated in this state; * * *.

2. Only causes of action arising from the acts enumerated in this section may be asserted against a defendant in an action in which jurisdiction over him is based upon this section."

In view of the provisions of paragraph 2 of the Long Arm Statute, it is apparent that the complaint must allege one or more of the enumerated grounds in connection with the facts giving rise to the present controversy in order for the statute to be applicable.

On November 4, 1970, the court held a hearing on defendant Soo Line's motion to quash service. At that hearing Mr. Clarence M. Knutson, of Thief River Falls, Minnesota, car foreman for the Soo Line Railroad at Thief River Falls, testified that there were ten cars loaded with the plaintiff's equipment at Thief River Falls, and that the plaintiff loaded pipeline equipment on cars that were spotted along "Apple Spur". Mr. Knutson further testified that plaintiff's employees—

"shoved up some dirt for a ramp to go onto the cars, and they worked the cars up on the flats, * * * and they moved their machinery on top of the cars and down to the end of the cars, and after that, why, they blocked them with material they had and used—they had cabling that they used, this was five-eighths cable, and tightened down and pulled it up tight so that it was all secured."

In describing the load he stated that the "width was wider than the ten foot four or ten foot six width of the car, so that it would be considered a wide load." Mr. Knutson further testified on direct examination as follows:

"Q. Now, did you see anything wrong with the way the machinery had been loaded, other than the extra width?

A. No.

Q. Did the Soo Line in any way have anything to do with the loading, other than the subsequent inspection you have told the Court about?

A. No, it didn't."

On cross-examination Mr. Knutson testified:

"Q. And it is true, is it not, that you gave the employees of Mr. Fulton instructions with regard to how the loading was to

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