Hardie v. Bryson

• Decision Date: 07 April 1942
• Docket Number: No. 1042.,1042.
• Citation: 44 F. Supp. 67
• Parties: HARDIE v. BRYSON.
• Court: U.S. District Court — Eastern District of Missouri

44 F. Supp. 67

HARDIE v. BRYSON.

No. 1042.

District Court, E. D. Missouri, E. D.

April 7, 1942.

Lashly, Lashly, Miller & Clifford, of St. Louis, Mo., for plaintiff.

William O'Herin, of St. Louis, Mo. (Leahy, Walther & Hecker, of St. Louis, Mo., of counsel), for defendant.

MOORE, District Judge.

This is an automobile negligence action in which James L. Hardie is plaintiff and Charles G. Bryson is defendant. The case was removed from the Circuit Court of the City of St. Louis, jurisdiction in this Court being based on diversity of citizenship. An extremely interesting point of law is presented by defendant's "motion to dismiss or quash return of summons". The essential facts are simply these.

Defendant Bryson, a citizen of Illinois, was the defendant in another suit brought by one Esther Clara Harkins, which suit was pending in the Federal District Court for the Eastern District of Missouri. Bryson came into the state of Missouri from Illinois to attend the trial of the above case of Harkins v. Bryson. In the meantime, another suit had been filed against Bryson in the Circuit Court for the City of St. Louis, a State Court, wherein one James L. Hardie was plaintiff (the same being the case at bar), and summons had issued to the Sheriff. On the 10th day of April, 1941, after adjournment of trial of Harkins v. Bryson in the Federal Court, a deputy sheriff of the City of St. Louis followed Bryson from the third floor of the Federal Building and, as defendant was getting into a waiting automobile, served him with the writ in the case at bar, Hardie v. Bryson. The case was in due course removed to this Court and the present motion to dismiss was filed. No question is raised in dispute of these facts and it is taken that defendant Bryson entered Missouri solely for the purpose of attending trial and if, in the eyes of the law, any exemption from service existed, he was still within its protective cloak when the writ was executed.

Defendant bottoms his argument in support of dismissal on authorities which constitute the great weight of judicial opinion, and which grant exemption or immunity from service of summons to parties litigant who enter a jurisdiction solely for the purpose of attending a trial. Counsel cites cases definitely establishing that the Federal Courts have in the past aligned themselves with the above doctrine. One case in particular to which I am referred, Hale v. Wharton, C.C.W.D.Mo.1896, 73 F. 739, stands on all fours on the facts and was decided in favor of defendant's position. Were it not for the argument advanced by learned counsel for the plaintiff it would appear without further consideration that that case was determinative here. The facts in Hale v. Wharton, supra, disclose that defendant Wharton, a citizen of Pennsylvania, was a litigant in a suit in the Federal Court of the Western District of Missouri; Wharton came into Missouri to attend that trial and while there was served with civil process issuing out of the State Court of Jackson County, Missouri. He removed to Federal Court, filed a motion to vacate the Missouri process, and that motion was sustained and the summons vacated.

Plaintiff, however, has urged the effect upon this situation of the now well known case of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A. L.R. 1487. He states that the Federal cases cited by defendant are all prior to the Tompkins case, which is true. He states that the federal courts have decided in those cases that the question of immunity from service is a matter of "general jurisprudence" or "general law" from which he argues that it is a matter of "substance" under the Tompkins case and this court is required to follow the State law on the matter. That may or may not be true. Plaintiff shows the court that Missouri has adopted the so-called minority rule and grants no immunity save in cases of fraudulent enticement, Baisley v. Baisley, 113 Mo. 544, 21 S. W. 29, 35 Am.St.Rep 726, being the illustrative case on this point. Both parties agree that the Missouri law and the past Federal decisions differ, so there is no issue as to that.

Plaintiff's argument proceeds on two lines: first, he says the process questioned is a process under the Missouri Statutes, R. S.Mo.1939, § 871, the validity of which can only be tested by Missouri law (so long as there is no constitutional defect present, I take it); that even before Erie Railroad Co. v. Tompkins the Federal courts looked to state law for the construction of a state statute and that the Baisley case, supra, involves a construction of the Missouri process statute. This point is considered and disposed of in Hale v. Wharton, C.C.W.D.Mo.1896, 73 F. 739, loc. cit. 743-747, and need not be treated here at length. The vice in the argument is clearly exposed by Judge Philips when he says, loc. cit. 745 of 73 F.:

"It seems to me to be wholly begging the question raised by this motion to say that the defendant was summoned as the letter of the statute directs, and therefore he is bound. The question here presented arises dehors the record of the return. It presents rather the case of an abuse of process, — of an improvident issuing of summons, under a state of facts which, if known to the court at the time, sound public policy requires that the process be not issued, or, if issued, recalled. The objection to the service exists in pais, arising outside of the statute, and superior to the mere words of the writ and the return thereon, which the court could not know until brought to its attention. If, as suggested by the state court, this plea is cut off simply because the mode of service pursued was according to the letter of the statute, the doctrine of exemption from process while attending court could never have had a birth nor a growth. Presumably, on the face of the service of summons in all the adjudicated cases out of which the doctrine in question sprung, it was comformable either to statutory prescription or rule of court directing the method of serving writs of summons. Strangely enough, after flatly placing the right to sue a defendant outside of his state and county, notwithstanding he was at the place of service as a suitor, on the mere words of the statute as to where service might be made, the learned judge, in Christian v. Williams, supra 111 Mo. 429, 20 S.W. 96, said that he wanted it distinctly understood that his remarks did not apply to the case where the party sued was induced by fraud and misrepresentation, or under compulsion of criminal process, `to enter within the boundaries of a county other than that of his residence'; citing a number of state cases where it had been so ruled. Upon what does the exemption thus recognized rest, other than, as repeatedly stated in the decisions of that court, that `it was an abuse of process,' and `that no rightful jurisdiction can be acquired by fraud and misrepresentation?' * * *

"This rule, thus recognized by the state court, is not based on any statute, or legislative exception, but springs from that inherent power resident in every court exercising common-law jurisdiction, to prevent the abuse of process and the subversion of justice by unnecessary oppression. It is a suicidal contradiction, therefore, to say that the generally recognized exemption of a suitor by the courts from process while attending upon the trial of a cause outside of the jurisdiction of his domicile cannot arise because `the statute makes no exemptions, and we are not authorized to make any,' and, in the next breath, say the court will vacate a service of process made under the same statute because it is an abuse of process to inveigle a party from the county or state of his residence. There is no logical escape from the proposition that the same high end of orderly and dignified procedure, demanding noninterference with witnesses and suitors, and the abuse of process, applies equally to both instances."

Secondly, plaintiff takes the position that the right of immunity is one of substance, that Erie Railroad Co. v. Tompkins directs the Federal Court to adopt the rules of substantive law prevailing in the state in which it sits and that, therefore, under that authority the rule of decision should be the Missouri doctrine. This is the heart of his argument, and in his own words plaintiff's counsel sums it up thus:

"The plaintiff respectfully submits that under the law of the State of Missouri valid service was obtained upon defendant Bryson when he was in the City of St. Louis. That such holding of the Supreme Court of Missouri is part of the substantive law of Missouri. That under the Erie Railroad case this Court is required to follow such rule of law. That the rule operates with full force and effect whether Bryson was attending a State court trial or a Federal court trial at the time he was served. That it is the definite policy of the Federal Courts to hold that where valid service is obtained on a defendant in a State Court action, that the Federal Courts will not hold such service invalid merely because the defendant removed to the Federal Court."

I know of no more confusing nor interesting problem before the Federal Courts to-day than that of the delimitation of the doctrine of Erie Railroad Co. v. Tompkins, and it is for that reason that I have ventured to support my ruling with a written opinion. I should be most thankful for the advice of the appellate courts in this matter, but, unfortunately, I find no case clearly in point.¹

The doctrine of the Erie case requires the Federal Court to follow the state law in matters substantive, yet no clear definition is to be found of the distinction between what is substance and what is procedure. We are left to our resources in borderline cases, subject, of course, to the determination of higher tribunals.

That the weight of authority throughout the United States would grant immunity from service in a case like the present one cannot...