Hedrick v. Canadian Pac. Ry. Co.
| Decision Date | 19 June 1939 |
| Docket Number | No. 48.,48. |
| Parties | HEDRICK v. CANADIAN PAC. RY. CO. |
| Court | U.S. District Court — Southern District of Ohio |
Maurice H. Koodish, of Cincinnati, Ohio, and Claycombe & Stump, of Indianapolis, Ind., for plaintiff.
Waite, Schindel & Bayless, Herbert Shaffer, and Philip J. Schneider, all of Cincinnati, Ohio, for defendant.
On February 14, 1939, plaintiff filed a complaint for damages for personal injuries. On March 4, 1939, defendant, without entering its appearance and appearing solely for the purpose of the motion, filed a motion praying the court "to dismiss this action or in lieu thereof to quash the return of service of summons herein on the ground that the defendant is a corporation organized under the Statutes of the Dominion of Canada and was not and is not subject to service of process within the Southern District of Ohio, and this Court has no jurisdiction over the person of the defendant."
Accompanying the motion is an affidavit in support thereof signed by Angus D. MacDonald, the party upon whom the return shows the service was made by the United States Marshal. The affidavit sets forth in detail the connection which the said MacDonald has with the defendant company. In support of the motion counsel for defendant company cite and rely upon Maxfield v. Canadian Pacific Railway Company et al., 8 Cir., 70 F.2d 982, certiorari denied 293 U.S. 610, 55 S.Ct. 140, 79 L.Ed. 700, rehearing denied 293 U.S. 632, 55 S.Ct. 212, 79 L.Ed. 717.
The facts as disclosed by the affidavit of Mr. MacDonald in the instant case show that his relationship to the defendant company herein and his powers and duties are identical with those of H. M. Tait, who is the party upon whom service was made in the Maxfield case just referred to.
In the Maxfield case the Court of Appeals (C.C.A. 8), affirming the lower court, held that the order of the district court setting aside the service of summons and dismissing the action was a proper order. In the Maxfield case, 70 F.2d at page 985, the court say "we are satisfied that the court below reached the correct conclusion in holding that neither of the appellees was present in the state of Minnesota".
In their brief counsel for plaintiff say the Maxfield case "is an authority in Minnesota" but they submit it should not be controlling or persuasive here because (as plaintiff asserts) this court is bound, under the decision in Erie Railroad Company v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, to follow the law of Ohio as set out in the decisions of the courts of Ohio, and plaintiff submits that the law of Ohio is laid down in the following two cases: Price & Co. v. Davis, Agt., 22 Ohio App. 388, 153 N.E. 529, and American Laundry Machinery Co. v. Chicago, B. & Q. R. Co., 39 Ohio App. 430, 177 N.E. 533, — both decisions by the Court of Appeals of Hamilton County, Ohio.
The court is of opinion that, as claimed by defendant company, the rule laid down in Erie Railroad Company v. Tompkins, supra, does not...
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