Maxfield v. Canadian Pac. Ry. Co.

• Decision Date: 02 May 1934
• Docket Number: No. 9821.,9821.
• Citation: 70 F.2d 982
• Parties: MAXFIELD v. CANADIAN PAC. RY. CO. et al.
• Court: U.S. Court of Appeals — Eighth Circuit

70 F.2d 982 (1934)

MAXFIELD v. CANADIAN PAC. RY. CO. et al.

No. 9821.

Circuit Court of Appeals, Eighth Circuit.

May 2, 1934.

Donald O. Wright, of Minneapolis, Minn. (Alfred W. Bowen, of Minneapolis, Minn., on the brief), for appellant.

John E. Palmer, of Minneapolis, Minn., for appellees.

Before GARDNER, SANBORN, and VAN VALKENBURGH, Circuit Judges.

SANBORN, Circuit Judge.

This appeal is from an order setting aside the service of summons and dismissing the appellant's action for want of jurisdiction.

The controlling facts upon which the order is based are fully and fairly stated by the court below as follows:

"Plaintiff is a citizen and resident of Minnesota. Defendants are foreign corporations organized and existing under and by virtue of the laws of the Dominion of Canada, and are engaged in the business of common carrier of passengers and freight by railroad and steamship. Service was made upon one H. M. Tait, an agent in general charge of an office in Minneapolis, which is maintained solely for the purpose of solicitation of business for these defendants in the carrying of passengers and freight in the Dominion of Canada and foreign commerce. Neither of the defendants carry on any transportation business in the State of Minnesota. The steamship company has no property in this state, nor do any of its ships come into any port in the State of Minnesota. The railroad company has no trackage or property (save office equipment) in Minnesota, except such rolling stock which may from time to time be brought in by other railways in the course of traffic with Canada. The office in Minneapolis serves as the headquarters for solicitation of transportation business for the Canadian Pacific Railway Company and the Canadian Pacific Steamships, Ltd., and the work incidental to the business of such solicitation. The steamship company has traffic relations with the railway company and other railways in Canada which have traffic relations with certain railways in the United States, which, with said steamship ocean routes, constitutes a through and continuous route for passengers and freight to and from ports in the United States and Canada to foreign destinations. The office force in Minneapolis is maintained for the purpose of serving these defendants for the carrying out of the business hereinbefore described. H. M. Tait, the person upon whom the attempted service was made herein, is in charge of the office, and has the title of General Agent, Passenger Department. The office is apparently maintained by the railway company, but is used by both defendants for the purposes herein indicated. The office force consists of H. M. Tait, one person in charge of handling tickets, one ticket clerk, two employees soliciting passenger business, one stenographer, and two freight solicitors. One of these employees, to-wit: E. A. Dietz, has authority to sell coupon tickets good for travel over connected lines in the United States and the Canadian Pacific Railway in Canada, and steamship tickets good for travel over navigable waters foreign to Minnesota upon which the Canadian Pacific steamships are operated.

"Plaintiff procured transportation from Minneapolis * * * to Montreal over the Minneapolis, St. Paul & Sault Ste. Marie Railway to the Canadian boundary, thence via the Canadian Pacific Railway, and steamship ticket through H. M. Tait from Montreal, Canada, to Glasgow, Scotland. The steamship ticket was procured by said Tait by mail from the steamship company's principal office at Montreal, and when received by him was delivered to the plaintiff at Minneapolis. Plaintiff brings this action to recover damages on account of an alleged accident which she contends took place while she was enroute from Montreal to Glasgow aboard one of the steamships of the Canadian Pacific Steamship Company.

"Neither of these defendants has procured a license from the State of Minnesota to transact business therein, and no agent has ever been appointed by these defendants to accept service of process in the State of Minnesota."

The first question to be determined is whether, at the time of the service of process, the appellee corporations were doing business within the district of Minnesota in such manner as to warrant the inference that they were present there. International Harvester Co. v. Commonwealth of Kentucky, 234 U. S. 579, 583, 34 S. Ct. 944, 58 L. Ed. 1479; Philadelphia & Reading Ry. Co. v. McKibbin, 243 U. S. 264, 265, 37 S. Ct. 280, 61 L. Ed. 710; Rosenberg Bros. & Co., Inc., v. Curtis Brown Co., 260 U. S. 516, 517, 43 S. Ct. 170, 67 L. Ed. 372; Bank of America v. Whitney Central National Bank, 261 U. S. 171, 172, 43 S. Ct. 311, 67 L. Ed. 594; James-Dickinson Farm Mortg. Co. v. Harry, 273 U. S. 119, 122, 47 S. Ct. 308, 71 L. Ed. 569; Louisville & Nashville R. Co. v. Chatters, 279 U. S. 320, 324, 325, 49 S. Ct. 329, 73 L. Ed. 711; Consolidated Textile Corp. v. Gregory, 289 U. S. 85, 88, 53 S. Ct. 529, 77 L. Ed. 1047.

"The jurisdiction taken of foreign corporations, in the absence of statutory requirement or express consent, does not rest upon a fiction of constructive presence, like `qui facit per alium facit per se.' It flows from the fact that the corporation itself does business in the state or district in such a manner and to such an extent that its actual presence there is established." Bank of America v. Whitney Central National Bank, supra, 261 U. S. 171, 173, 43 S. Ct. 311, 312, 67 L. Ed. 594.

"The general rule deducible from all our decisions is that the business must be of such nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction, and is by its duly authorized officers or agents present within the state or district where service is attempted." People's Tobacco Co., Limited, v. American Tobacco Co., 246 U. S. 79, 87, 38 S. Ct. 233, 235, 62 L. Ed. 587, Ann. Cas. 1918C, 537; Consolidated Textile Corporation v. Gregory, 289 U. S. 85, 88, 53 S. Ct. 529, 77 L. Ed. 1047; St. Louis S. W. R. Co. v. Alexander, 227 U. S. 218, 226, 33 S. Ct. 245, 57 L. Ed. 486.

The conclusion of the court...