Hernan v. American Bridge Co.

• Decision Date: 09 January 1909
• Docket Number: 1,826.
• Citation: 167 F. 930
• Parties: HERNAN v. AMERICAN BRIDGE CO.
• Court: U.S. Court of Appeals — Sixth Circuit

167 F. 930

HERNAN v. AMERICAN BRIDGE CO.

No. 1,826.

United States Court of Appeals, Sixth Circuit.

January 9, 1909

George Edwards, for plaintiff in error.

Before LURTON, SEVERENS, and RICHARDS, Circuit Judges.

SEVERENS Circuit Judge.

On the 6th day of April, 1906, Hernan, the plaintiff in error brought suit in the court below against the American Bridge Company by filing his petition, taking out a summons, and delivering the latter to the marshal for service. The summons did not describe the citizenship of the American Bridge Company, but in his petition the plaintiff described it as 'a corporation organized under the laws of New York ' The complaint of the petition was of a personal injury sustained by him on September 8, 1905, while in the employment of the American Bridge Company, in its shop at Ambridge, in the state of Pennsylvania, in consequence of the negligence of the company in the particulars stated, whereby a heavy iron column fell upon him, causing the fracture of all the bones of both his feet and other injuries. The company operating the works at Ambridge, Pa., and in whose employment the plaintiff was, and by whose negligence he suffered the injury, was organized under the laws of New Jersey. There was, however, another corporation of the name of the American Bridge Company, organized under the laws of New York. It was a finding of fact by the court below that one Clarence E. Sanders, 'having his office and location in Cleveland, Ohio, was at all of the times mentioned in said pleadings and return of said summons the person designated by said American Bridge Company, a corporation of New Jersey and American Bridge Company, a corporation of New York, as the agent or officer in charge of the business of both of said corporations under the provisions of section 148a of the Revised Statutes of 1908 of Ohio, and was at all of said times the proper officer upon whom to serve a summons issued against either or both of said companies.'

The return of the marshal was as follows:

'Received this writ at Cleveland, Ohio, April 6, 1906, and on April 16, 1906, at Cleveland, Ohio, I served the same on the within named the American Bridge Company, a corporation, by handing a true and certified copy hereof with all the endorsements thereon to Clarence E. Sanders, designated under the statute in such cases made and provided to accept service for the aforenamed corporation in Ohio.

F. M. Chandler, U.S. Marshal, 'By. F. M. Fanning, Deputy.'

The American Bridge Company of New York on May 19, 1906, filed the following answer:

'Patrick Hernan, Plaintiff, v. American Bridge Company, Defendant. No. 7076. Answer.

'Now comes the American Bridge Company, defendant herein, and admits that it is a corporation organized under and in pursuance of the laws of the state of New York, for the purpose of carrying on the business of bridge building.

'Further answering said petition, defendant denies each and every other allegation thereof.

'Wherefore, having fully answered, defendant asks to go hence with its costs.'

And the cause was continued to the October term, 1906. At the October term the plaintiff, upon leave granted, filed an amended petition, and the cause was continued to the ensuing February term. At that term the cause was again continued to the next term; but meantime, and on March 19, 1907, the American Bridge Company filed a motion, as follows:

'Patrick Hernan, Plaintiff, v. American Bridge Company, Defendant. No.

7076. Motion.

'Now comes the defendant, the American Bridge Company, and moves the court to require the plaintiff to make his amended petition filed herein more definite and certain in the following particulars, to wit:

'(1) That he state therein in what particular or particulars the workmen employed by the defendant to assist the plaintiff were 'incompetent for the performance of the duty of the place assigned to them.'

'(2) That he state what tools were 'old and of insufficient numbers.'

'(3) That he state what tools were defective, and in what the defects consisted.'

And the cause was continued to the April term. During the April term the court entered an order sustaining the motion to make his amended petition more definite and certain. On September 26, 1907, the American Bridge Company filed its answer to the second amended petition. An action against the New Jersey corporation was barred by the statute of limitations on the 8th of that month. This answer was the same as that above set forth to the original petition, except that it added to the first paragraph, which admitted its incorporation under the laws of New York, the following:

'Denies that it, as such corporation, at the times mentioned in the petition, was engaged in the business of bridge building, and was the owner and engaged in the operation of certain shops used in the manufacture of bridges in Ambridge, in the state of Pennsylvania; denies that on, and for some time prior to, September 8, 1905, plaintiff was in its employ.' Two days thereafter the cause was continued to the ensuing October term. At the October term, upon leave granted by the court, the plaintiff filed a third amended petition, amplifying the particulars of the accident described in the original petition, and describing the citizenship of the parties, as follows:

'Says: That he is a citizen of the state of Ohio and resident of the Eastern Division of the Northern District of Ohio, and that defendant, American Bridge Company, is a citizen of, and is a corporation organized under the laws of, a state other than Ohio, which plaintiff believes to be the state of New Jersey, but is uninformed as to the same, and as such corporation, defendant, at all of the times hereinafter mentioned and for some time prior thereto, was engaged in the business of bridge building, and was the owner and engaged in the operation of certain shops used in the manufacture of bridges, in Ambridge, in the state of Pennsylvania.'

The cause was further continued to the February term. And on March 24, 1908, upon a finding of facts, that in regard to the agency of Sanders, above recited, and the further fact, 'and that the bridge works at Ambridge, in the state of Pennsylvania, described in plaintiff's third amended petition, was operated, at all of the times mentioned in said pleadings and return, by said American Bridge Company, a corporation of New Jersey,' the court ordered as follows:

'And the plaintiff, not desiring to plead further or have issued an alias summons, it is therefore considered, adjudged, and decreed by the court that said court is without jurisdiction to try this action, and that the petition and action of said plaintiff be, and the same hereby are, dismissed, at plaintiff's costs.'

The reasons for this action of the court are more fully explained in an opinion of the learned judge which comes up with the record; and, as those reasons form the subject for discussion, it seems best to exhibit them in the judge's own language. He says:

'In this case a petition was filed against the American Bridge Company, a corporation organized under the laws of the state of New York. The description of the defendant in the second amended petition is as follows:

''American Bridge Company is a corporation, organized under the law of the state of New York, and is a citizen of the state of New York.'

'The action is for personal injury sustained by the plaintiff.

'Service of summons was made upon the authorized representative of the defendant in this state.

'September 26, 1907, the defendant filed its answer admitting that it was a corporation organized under the laws of the state of New York and that it is a citizen of the state of New York, but denying all the other allegations of the second amended petition.

'Thereafter a motion was filed by the plaintiff asking leave to amend the second amended petition by making the American Bridge Company of New Jersey a party defendant.

'The right of the plaintiff to make this amendment is not disputed, but the contention of the plaintiff is that there would be no necessity for serving summons upon the American Bridge Company of New Jersey upon its representative in the state of Ohio, and that as against that defendant the date of the beginning of the action would not be at the time of serving the summons upon the new defendant, but the time of beginning the action against the American Bridge Company of New York.

'The claim is made and assumed in argument that a very close relation exists between the American Bridge Company of New York and the American Bridge Company of New Jersey, and that they both have the same representative in Ohio, upon whom service of process may be had, and it is therefore contended that service upon the representative of the American Bridge Company of New York was a service upon the American Bridge Company of New Jersey, because the representative of the latter company was at the same time a representative of the former company.

'Of course, the largest latitude in this matter of amendment-- that is, as to parties-- ought to be allowed. If there had been a misdescription of the party where no question of its identity was really involved, such an amendment might be permitted; but there can be no question as to the separate identity of these corporations, and the suit that was originally brought against the American Bridge Company of New York cannot be, by any sort of substitution or logic, held to be a suit against the American Bridge Company of New Jersey. The identity of the representative of both companies as one person does not at all affect the situation. The American Bridge Company of New Jersey has never been sued, and, if brought into this case, it must

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