McCormick v. Southern Express Co.
| Decision Date | 16 October 1917 |
| Citation | 81 W.Va. 87 |
| Court | West Virginia Supreme Court |
| Parties | McCormick v. Southern Express Co. |
The rule respecting the right of an officer to amend his return of process, so as to make it conform to facts existing at the time of service and necessary to be stated in the return, is one promotive of justice and is liberally applied by the courts, (p. 88).
If a defendant appears specially and moves to quash a summons and the return thereon, ou the ground that the return is defective, and the court sustains his motion, but permits the sheriff to amend his return, and defendant excepts, but does not renew his motion to quash the return as amended, and pleads to issue, he thereby waives any objection to the amended return, (p. 88).
Act of Congress.
By the act of Congress, March 4, 1915, known as the Cummins. Amendment to the Carmack Amendment to the Interstate; Commerce Act, a common carrier of an interstate shipment is made liable to the shipper for the full actual loss, damage, or injury to the property, notwithstanding any limitation of liability or limitation of the amount of recovery or representation or agreement as to value in the receipt or bill of lading, or in any contract, rule, regulation, or in any tariff tiled with the Interstate; Commerce Commission, whether or not the goods are hidden from view by wrapping, boxing, or other means unless, in case they are hidden from view, he requires the shipper to state specifically in writing their value, (p. 90).
Error to Circuit Court, Jefferson County.
Assumpsit by H. H. McCormick against the Southern Express Company. Judgment for plaintiff, and defendant brings error.
Affirmed.
Forrest W. Brown and Forrest A. Brown, for plaintiff in error.
Charles N. Campbell, for defendant in error.
Plaintiff recovered judgment in assumpsit for $300.00, the value of one Dark Cornish Cock which was killed while being transported by defendant company from Warrenton, Virginia, to Catonsville, Maryland, and it has brought the case to this court for review of alleged errors.
The first assignment is, that the court erred in allowing plaintiff to have the return of the summons amended, and in holding the service valid. Suit was brought in Jefferson county, West Virginia, and summons was served on D. N. Green, the station agent of defendant at Charles Town, West Virginia, but the return failed to state that he resided in said county. Defendant first appeared specially and moved to quash the summons and return, and the court sustained the motion to quash the return, but not the summons, and granted plaintiff leave to have the return amended. Thereupon the deputy sheriff, who had made the service, appeared in court and testified that said D. N. Green, agent of defendant, resided in Jefferson county, West Virginia. Whereupon the return was amended accordingly, and defendant objected and excepted, but did not renew its motion to quash the return after amendment. It was certainly proper to* allow the amendment to be made. The rule respecting the right of an officer to amend his return in order to make it conform to the facts is promotive of justice, and is liberally applied by the courts. 1 Ency. Dig. Va. & W. Va., 356. By not renewing its motion to quash the return, after amendment thereof, and by appearing and pleading to the issue, defendant must be deemed to have waived any objection to the amended return, and we need not determine whether it shows a proper service. The exception taken was only to the action of the court in permitting the amendment, and is not well taken.
Our attention is not directed to any defect in the process itself, and we perceive none. But the court does not appear to have expressly ruled on defendant's motion to quash it.
It is insisted that the court was without jurisdiction, because defendant did not reside in Jefferson county, nor did the cause of action arise therein. Without intimating that a plea in abatement would have been availing, it might be sufficient reply to this contention to say that none was filed. But there can be no question concerning the court's jurisdiction, whether defendant be a foreign or a domestic corporation, and regardless of its place of residence, or of the place where the cause of action arose. The cause of action being transitory, the action could be brought wherever the process of the court could be properly served upon def gndant. The declaration avers the cause of action to be a breach of duty respecting an interstate shipment, and shows it did not arise in West Virginia, but it nowhere appears whether def 3ndant is a domestic or a foreign corporation. But it does appear by the amended return of service that it did business in Jefferson county, for it maintained a local agent in that county. Service upon such agent in the county of his residence was sufficient to give jurisdiction to render a personal judgment against defendant. A foreign corporation coming into another state, by its officers or agents, and there engaging-in business, thereby subjects itself to the process of the courts of that state. Abel v. Penn Mutual Life Ins. Co., 18 W. Va 400; Connecticut Life Ins. Co. v. Duer son's Exor., 28 G-rat. 630; Humphreys v. Newport News & M, V. Co., 38 W. Va 135; B. & 0. R. R. Co. v. Harris, 12 Wall. 65, 20 Law Ed. 354; and 3 Cook on Corp., sec. 755. Sec. 1, eh. 123, Code of West Virginia, provides that a suit may be brought against a corporation in any county "wherein its principal office is, or wherein its mayor, president, or other chief officer resides; or if its principal office be not in this State, anc. its mayor, president, or other chief officer do not reside therein, wherein it docs business.''
State and Federal courts have concurrent jurisdiction of suits to enforce liability against an interstate carrier under the Interstate Commerce Act if the amount involved is sufficiently large to give federal jurisdiction, and the state courts have exclusive jurisdiction if the amount claimed is below federal jurisdiction. See cases cited in note on page 9308 of volume 8, U. S. Statutes Annotated.
The demurrer to the declaration was properly overruled. It was...
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Tioga Coal Corporation v. Silman
... ... return of service to conform to the facts of service ... McCormick v. Southern Express Co., 81 W.Va. 87, 93 ... S.E. 1048. But an amendment which is in direct ... ...
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Hubbard Grocery Co. v. Payne
...it may avoid by finding and delivering the lost goods, or by adjusting the loss with the owner without litigation." In McCormick v. Express Co., 81 W.Va. 87, 93 S.E. 1048, involving a declaration also similar in form to the before us, a demurrer on the ground that it should have declared sp......
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Hubbard Grocery Co. v. Payne
...which it may avoid by finding and delivering the lost goods, or by adjusting the loss with the owner without litigation". In McCormich v. Express Co., 81 W. Va. 87, involving a declaration also similar in form to the one before us, a demurrer on the ground that it should have declared speci......
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Hubbard Grocery Co v. Payne
...may avoid by finding and delivering the lost goods, or by adjusting the loss with the owner without litigation." In McCormick v. Express Co., 81 W. Va. 87, 93 S. E. 1048, involving a declaration also similar in form to the one before us, a demurrer on the ground that it should have declared......