Ketch v. Atlantic Coast Line R. Co.

• Decision Date: 13 January 1943
• Docket Number: No. 452.,452.
• Citation: 51 F. Supp. 243
• Parties: KETCH v. ATLANTIC COAST LINE R. CO.
• Court: U.S. District Court — Eastern District of Tennessee

51 F. Supp. 243

KETCH v. ATLANTIC COAST LINE R. CO.

No. 452.

District Court, E. D. Tennessee, S. D.

January 13, 1943.

Frazier & Roberts, of Chattanooga, Tenn., for plaintiff.

Spurlock & Spears, of Chattanooga, Tenn., for defendant.

DARR, District Judge.

The question is on motion to quash the service of process.

The plaintiff claims jurisdiction because of diversity of citizenship. He is a resident of Maine and the defendant is a corporation by virtue of the laws of the State of Georgia.

The relief sought is based upon the allegations of negligence occurring in the State of Georgia.

Process was served on T. Y. Morris, commercial agent of the defendant at Chattanooga, and process was also served on J. J. McLaughlin, designated agent of the defendant for service of process, who resided at the time in Erwin, Unicoi county, Tennessee.

The motion to quash the service, as amended, which is supported by several affidavits, appears to cover the following propositions:

(1) Because the defendant is a foreign corporation and not subject to service in this district.

(2) To try the case in Tennessee in this court would be a burden on interstate commerce.

(3) Because service on J. J. McLaughlin, as a statutory agent, would not be sufficient to authorize the trial of a cause, the subject matter of which occurred outside the State of Tennessee.

(4) That the said Morris is only a commercial agent and not such representative as contemplated by the statute upon whom service could be had.

The service of the process is governed by Rule 4(d) at (3, 7) of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. The sufficiency of the service in this case is to be determined by the manner prescribed by the law of the State of Tennessee.

To consider first the service upon the commercial agent, Morris: The affidavits disclose that Mr. Morris maintained an office in Chattanooga, had secretarial aid, all of which were paid for by the defendant. That his duties were soliciting freight and passenger business for the defendant. That the defendant jointly with the Louisville and Nashville Railroad Company operated a railway in Tennessee known as the Clinchfield.

The service of the process upon Morris, if good at all, is by authority of the Tennessee law codified at Section 8669 of the Tennessee Code.

This statute provides that when a corporation has an agency in any county other than in which the chief officer or principal resides, the service of process may be had upon any agent or clerk employed therein in all actions brought in such county against same growing out of the business of, or connected with, said principal's business.

Under this statute, it is not necessary that the corporation have a "chief officer or principal" in the State and the statute also applies to foreign corporations as well as domestic. Texas Co. v Cox et al., 178 Tenn. 239, 156 S.W.2d 809.

It seems clear that Mr. Morris was maintaining an agency for the defendant. Service on him will be good conditioned that it does not violate the commerce clause or the due process clause of the Constitution.

A number of cases, and quite respectable authorities too, hold that service...