Norfolk Southern Ry. Co. v. Foreman

• Decision Date: 16 July 1917
• Docket Number: 1505.
• Citation: 244 F. 353
• Parties: NORFOLK SOUTHERN R. CO. v. FOREMAN.
• Court: U.S. Court of Appeals — Fourth Circuit

244 F. 353

NORFOLK SOUTHERN R. CO. v. FOREMAN.

No. 1505.

United States Court of Appeals, Fourth Circuit.

July 16, 1917

James G. Martin, of Norfolk, Va., for appellant.

S Burnell Bragg and Luther B. Way, both of Norfolk, Va. (Pender & Way, of Norfolk, Va., on the brief), for appellee.

Before PRITCHARD and KNAPP, Circuit Judges, and SMITH, District Judge.

SMITH District Judge.

This is an appeal in admiralty from a decree of the court below in favor of the appellee for $2,400, as damages due to the children of one Alonzo Skinner for his death through the negligence of the appellant. The appellant, the defendant below, is a domestic corporation of the state of Virginia having its principal office in the city of Norfolk. The deceased, for whose death damages are claimed, was at the time of his death a resident of and employed in the city of Norfolk. The place where the death and the alleged act of negligence took place was in the port of Norfolk, and the plaintiff is a domestic administrator in Norfolk of the deceased. The statute of Virginia (Code, Sec. 2902) provides that, where death has ensued from the negligence of those in charge of a ship or vessel, the same right of action which the deceased would have had if death had not ensued shall survive and continue. The appellant was the owner of the tug Lynnhaven, and this libel in personam was filed against the appellant, the Norfolk Southern Railroad Company, as the party responsible for the negligence of its employes in charge of that tug in causing the death of Skinner. The monition was served by the marshal on the secretary of the Norfolk Southern Railroad Company by delivering a true copy to him in person at the principal office of the Norfolk Southern Railroad Company in the city of Norfolk. The respondent then filed an appearance stating that it appeared specially in the cause and moved to quash the return and dismiss the libel and monition, for that it appeared that the monition had been served on the secretary of the respondent corporation, whereas the secretary was not a person upon whom service could be made under the statutes and laws of the state of Virginia. The court below heard the motion to dismiss the libel and monition and to quash the libel and to quash the monition, and quash the marshal's return on the monition, and overruled the motion and ordered the respondent to answer. Thereupon respondent filed its answer to the merits (without therein expressly reserving any rights under its previous special appearance), and the cause went to trial on the merits before the court. A large amount of testimony was introduced by both libelant and respondent, and the court rendered its decree on the merits in favor of libelant, for $2,400. From that decree this appeal is taken.

Three questions are made by the assignments of error: (1) That the court should have quashed the return and dismissed the libel and monition; (2) that the court erred in finding the respondents guilty of negligence; (3) that the court erred in not finding the deceased guilty of contributory negligence.

The statute of Virginia (Code, Sec. 3225) provides that process against a railroad corporation may be made on its president cashier, treasurer, general superintendent, or any one of its directors. Were the present cause an action at law, then under the conformity act of 1872 the Virginia statute might be held as controlling. It is a proceeding in admiralty, to which the conformity act does not apply; and the inquiry, then, is whether the service on the secretary was a good service on a corporation according to admiralty practice. The statute of Virginia could not possibly control the practice in the exclusive jurisdiction of a court of admiralty. If, when the statute of Virginia was enacted, by the practice of the court of admiralty a corporation could be served by a service on its secretary, then, to hold that the statute could restrict the court of admiralty in the exercise of its jurisdiction by limiting the service to only other officers-- say to officers far removed from the point at which the court of admiralty sat-- would seem to lead to the power of the state to practically deprive the court of admiralty of its salutary and summary jurisdiction in personam.

There appears to be no statute of Congress or rule of the District Court below expressly providing how citations in admiralty shall be served nor any decisions of any court of admiralty on the point. Walker v. Hughes (D.C.) 132 F. 885.

In the matter of In re Louisville Underwriters, 134 U.S. 488, 10 Sup.Ct. 587, 33 L.Ed. 991, the Supreme Court held that where the libelee (a foreign corporation) had, in pursuance of a state statute, appointed an agent in New Orleans on whom legal process might be served, then a monition in admiralty from the United States District Court for the Eastern District of Louisiana could also be served on that agent. This followed not from the permission or provision of the state statute, but because service on an agent was a good service in admiralty, and there was an agent (no matter why appointed) within the territorial jurisdiction who could be served.

In United States v. Bedouin Steamship Co. (D.C.) 167 F. 863, where the service on an agent of a foreign corporation was upheld, it does not appear that any reference was made to any authority based on a state statute. In the cases of Doe v. Springfield Boiler Co., 104 F. 684, 44 C.C.A. 128, and Insurance Co. of North America v. Frederick Leyland & Co. (D.C.) 139 F. 67, it was held in the cases of nonresidents, that where the state statutes required the designation of, or itself designated, the agents of foreign corporations on whom process could be served, that a service could be made of a monition in admiralty on the same agents. Nothing in these cases is restrictive of the power of a court of admiralty to serve either a domestic or a foreign corporation according to its established practice. A court of admiralty could not serve in personam a foreign nonresident corporation by extraterritorial service of the monition. Where, however, in obedience to state law, an intraterritorial agent exists on whom process can be served, then the court of admiralty can have its process served on that agent within the jurisdiction in like manner as a state court could do, and in like manner also as the court of admiralty might do if the agent within its territorial jurisdiction were appointed without reference to any state statute. U.S. v. Bedouin S.S. Co., supra.

The Supreme Court has decided in Kansas City R.R. Co. v. Daughtry, 138 U.S. 298, 305, 11 Sup.Ct. 306, 308 (34 L.Ed. 963), that 'at common law service was made on such head officer of a corporation as secured knowledge of the process to the corporation. ' There is no distinct separate adjudication to the same effect with regard to a court of admiralty, but it would seem to follow necessarily that the same rule held good in any court of record, and especially in a court of admiralty. By the general concensus of authority, the secretary of a corporation is such a head officer, and the learned judge below did not err in overruling the motion to quash the service.

But apart from this, it appears that the appellant respondent, after the decision of the motion, answered and went to trial on the merits. The appellant insists that this was no waiver of its rights under its so-called special appearance, but that when that was overruled it had the right to defend itself on the merits, and reserve the right, should the merits be decided adversely to it, to renew its objection in this court, and have the adverse judgment reversed on this preliminary ground; that it was not bound to take the chances of being wrong on this preliminary question, but had the right to appear and contest the cause on the merits, and reserve this preliminary question as a resource should the merits be decided against it. There are, however, two sets of chances, and the argument should hold conversely. Why should the appellant have the right to compel the chances in its favor by taking the benefit of the trial on its merits, and the benefit of the judgment if in its favor, whilst denying that benefit to the appellee by holding in reserve this preliminary question? Is the appellant to be in the court for its purposes and at the same time out of it for the purposes of the appellee?

There is a great mass of conflicting decisions on this subject of so-called special appearances and their effect. Some jurisdictions uphold the right to appear specially, and, if the question be decided adversely to the party so appearing, then to file answers to the merits and contest those merits on trial, taking the chance of a favorable decision, and, if the decision on the merits be adverse, still to retain the right to make the question of power or jurisdiction advanced by the special appearance. Some jurisdictions deny this right, and in one jurisdiction (Texas) the statutory provision is to the effect that any such appearance shall be deemed and treated as a general appearance. On an appeal from a similar statutory provision of the state of Kentucky in the case of Western Indemnity Co. v. Rupp, 235 U.S. 261, 35 Sup.Ct. 37, 59 L.Ed. 220, the Supreme Court held:

'That a state, without violence to the 'due process' clause of the Fourteenth Amendment, may declare that one who voluntarily enters one of its courts to contest any question in an action there pending shall be deemed to have submitted himself to the jurisdiction of the court for all purposes of the action, and may attach consequences of this character even to a special appearance entered for the purpose of objecting that the trial court has not acquired jurisdiction over the person of the

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