Hamilton v. North P. S.S. Co.

• Decision Date: 17 April 1917
• Citation: 164 P. 579,84 Or. 71
• Parties: HAMILTON v. NORTH PAC. S. S. CO.
• Court: Oregon Supreme Court

164 P. 579

84 Or. 71

HAMILTON v. NORTH PAC. S. S. CO.

Supreme Court of Oregon

April 17, 1917

Department 1.

Appeal from Circuit Court, Multnomah County; Lawrence T. Harris Judge.

Action by H. D. Hamilton against the North Pacific Steamship Company. Judgment for plaintiff, and defendant appeals. Reversed and remanded.

This is an action brought to recover damages for a personal injury sustained by plaintiff on June 21, 1912. Plaintiff suffered the injuries complained of while working for the defendant on the steamship Roanoke and while the steamship was on the high seas. The pleadings admit that the Roanoke at the time in question was owned and operated by the defendant, and that the defendant is a corporation organized and existing under the laws of the state of California. This action was brought on the 22d day of November, 1913, more than one year after plaintiff sustained his injuries. The defendant pleads the statute of limitations of the state of California as a defense, and offered to prove on the trial that under the California Code such an action as this must be brought within one year from the accrual of the cause of action. The offer of proof was excluded by the lower court. The Oregon statute of limitations permits such an action as this to be brought at any time within two years after the accrual of the cause of action. Section 8, L. O. L. A verdict was rendered for plaintiff, on which judgment was entered, and the defendant appeals.

F. C Howell, of Portland (Wilbur, Spencer & Beckett, of Portland on the brief), for appellant. A. M. Dibble, of Portland (Malarkey, Seabrook & Dibble, of Portland, on the brief), for respondent.

McCAMANT J. (after stating the facts as above).

There is but one question presented by this appeal: Did the lower court err in excluding evidence as to the California statute of limitations applicable to this character of litigation; in other words, does the California statute or the Oregon statute apply for the purpose of fixing the time within which plaintiff was required to bring his action? It is elementary and is conceded by both parties to this appeal that the law of the forum ordinarily determines the time within which plaintiff must sue. The defendant relies wholly on section 26, L. O. L., which is as follows:

"When the cause of action has arisen in another state territory, or country, between nonresidents of this state, and by the laws of the state, territory, or country where the cause of action arose, an action cannot be maintained thereon by reason of the lapse of time, no action shall be maintained thereon in this state."

Plaintiff's cause of action arose on board a steamship owned in the state of California.

"The territorial sovereignty of a state extends to a vessel of the state when it is upon the high seas; the vessel being deemed a part of the territory of the state to which it belongs." International Navigation Co. v. Lindstrom, 123 F. 475, 476, 60 C. C. A. 649, 650.

To the same effect see Deslions v. La Compagnie Generale Transatlantique, 210 U.S. 95, 28 S.Ct. 664, 680, 52 L.Ed. 973; Old Dominion Co. v. Gilmore, 207 U.S. 398, 28 S.Ct. 133, 52 L.Ed. 264; La Bourgogne, 139 F. 433, 438, 71 C. C. A. 489; The Hamilton, 146 F. 724, 726, 77 C. C. A. 150; In re Clyde Steamship Co. (D. C.) 134 F. 95, 99; The E. B. Ward, Jr. (C. C.) 17 F. 456, 459.

This case therefore stands on the same footing as if plaintiff had been injured in the city of San Francisco.

It appears that plaintiff is a citizen and resident of the state of Washington. The case therefore falls within the operation of section 26 of the Code, if it shall be held that the defendant is a nonresident of Oregon within the meaning of this section. The defendant's allegation on the subject of its residence is as follows:

"That the said steamship Roanoke referred to in the complaint and owned by this defendant is owned in the state of California, and not within the state of Oregon, and that the said defendant is a California corporation, and that said steamship is registered in the state of California."

Plaintiff claims that this allegation is insufficient on the ground that it covers the residence of the defendant only at the time when the answer was filed, and that there is no allegation that the defendant was a resident of California when the cause of action arose. In the respect criticized the answer is aided by the allegations of the complaint. It is alleged therein:

"That at all times hereinafter mentioned the defendant, North Pacific Steamship Company, was and now is a corporation duly organized and existing under and by virtue of the laws of the state of California and doing business in the state of Oregon, having an agent or agents at Portland, Or.

"That at all times hereinafter mentioned the defendant, North Pacific Steamship Company, was the owner of, and engaged in operating as a common carrier, that certain steamship known as the steamship Roanoke."

We think it sufficiently appears from the pleadings that the defendant was a California corporation on the day when plaintiff sustained his injuries, and it could not by any possibility have become an Oregon corporation as the result of anything which has since transpired. If the incorporation of the defendant under the laws of California makes it a nonresident of the state of Oregon within the purview of section 26, L. O. L., the defendant should have been permitted to prove the California statute of limitations.

The defendant contends that the pleadings admit that the defendant is a nonresident, and that for this reason the judgment should be reversed. This contention of the defendant is based upon the following allegation contained in plaintiff's reply:

"The plaintiff admits that the steamer referred to in plaintiff's complaint was registered at the city of San Francisco, Cal., and that the owner of said steamer resides in the state of California."

The foregoing allegation merely admits the conclusion which the law would draw from the fact that the defendant is a California corporation. Plaintiff contends that, although the defendant resides within the state of California, it was also a resident of the state of Oregon at the time when the cause of action arose, as it was doing business in Oregon and maintained an agent at Portland.

The allegation of the complaint above quoted, to the effect that the defendant has been doing business in the state of Oregon and has maintained an agent therein, is sustained by the proof. This case therefore presents the interesting legal question as to whether a foreign corporation doing business in Oregon and maintaining an agent therein is to be deemed a nonresident of the state within the meaning of section 26, L. O. L.

While the briefs are replete with authorities, our attention has been directed by the parties to only two cases arising under facts substantially identical with the case at bar. One of these cases, cited by plaintiff, is Louisville Co. v. Pool, 72 Miss. 487, 16 So. 753. This was an action brought in Mississippi to recover damages for the killing of plaintiff's stock in the state of Alabama by the defendant's railroad. The defendant relied on the Mississippi statute corresponding to our section 26. The decision is not in point, because the Mississippi statute is wholly unlike the Oregon statute. It is confined in its operation to cases of parties who remove from one state to another, and by its terms excludes from its operation the case of a corporation doing business in two or more states at the same time. The defendant cites Northwestern Co. v. Lowry, 20 S.W. 607, 14 Ky. Law Rep. 600. This case turns on a question of laches, and what was said by the court in construing the Kentucky statute corresponding to our section 26 was not necessary to the decision. Furthermore, the Kentucky legislation is distinguishable from the Oregon statute.

It is settled law in this jurisdiction that a foreign corporation doing business in Oregon is to be deemed a resident of Oregon in such sense as that it is amenable to the processes of the Oregon courts, and a personal judgment may be secured against it based on the service of summons in this state. Aldrich v. Anchor. Coal Co., 24 Or. 32, 35, 32 P. 756, 41 Am. St. Rep. 831; Farrell v. Oregon Co., 31 Or. 463, 467, 468, 49 P. 876. It is believed that these authorities go no further than to hold that a corporation by transacting business in Oregon consents to be found therein for the purpose of service of summons upon it.

Section 16, L. O. L., is in part as follows:

"If, when the cause of action shall accrue against any person who shall be out of the state or concealed therein, such action may be commenced within the terms herein respectively limited, after the return of such person into the state, or the time of his concealment."

Within the meaning of this statute it is held that a foreign corporation is not out of the state, provided it maintains an agent therein upon whom service of summons may be made. Burns v. White Swan Co., 35 Or. 305, 308, 57 P. 637; 3 Cook on Corporations (7th Ed.) § 757, pp. 2774, 2775. The authorities announcing this latter principle base their conclusions on the fact that the reason which induced the Legislature to enact section 16 aforesaid is inapplicable to any party on whom service of summons may be effected within the state at any time.

It is provided by section 44, L. O. L., that except in certain cases an action shall be commenced and tried in the county in which the defendant resides. In the interpretation of this statute it is held that a foreign corporation in a nonresident, and that it may therefore be sued in any...