Parker v. Central of Georgia Ry. Co.

• Decision Date: 11 June 1936
• Docket Number: 3 Div. 181
• Citation: 233 Ala. 149,170 So. 333
• Parties: PARKER v. CENTRAL OF GEORGIA RY. CO.
• Court: Alabama Supreme Court

170 So. 333

233 Ala. 149

PARKER v. CENTRAL OF GEORGIA RY. CO.

3 Div. 181

Supreme Court of Alabama

June 11, 1936

Rehearing Denied Oct. 8, 1936

Further Rehearing Denied Oct. 29, 1936

GARDNER and THOMAS, JJ., dissenting.

Appeal from Circuit Court, Montgomery County; Walter B. Jones Judge.

Action for wrongful death by Jewell D. Parker, as administratrix of the estate of Lum C. Parker, deceased, against the Central of Georgia Railway Company. From a judgment for defendant plaintiff appeals.

Reversed and remanded.

George Ross, of Bessemer, and Hill, Hill, Whiting & Rives, of Montgomery, for appellant.

Steiner Crum & Weil and Sam Rice Baker, all of Montgomery, for appellee.

FOSTER Justice.

This is an action under the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., for the death of plaintiff's intestate engaged in interstate commerce, and which occurred in Talladega county, Ala., November 21, 1932.

It was tried on issues made by a plea in abatement and replication to it. The facts pertaining to that issue were agreed on.

The agreed facts were: That defendant was a foreign corporation organized under the laws of Georgia. That prior to November 21, 1932, it had filed with the Secretary of State an instrument required by section 7209, Code, and section 232 Constitution, designating Montgomery as its known place of business in Alabama, and an authorized agent there residing. That it had not prior to the institution of this suit filed any instrument abandoning or changing the place of business or in any way amending the said designation of its place of business and appointment of its agent. That on and not before December 19, 1932, a receiver of defendant's property and operations was appointed by a United States District Court of Georgia, and that on January 6, 1933, an ancillary receiver was appointed by the United States District Court at Montgomery. That since such receivership all the assets and properties of defendant have been in the exclusive custody, control, management, and possession of said receiver, and all its railroad and business have been operated, possessed, and controlled exclusively by the receiver, and defendant as such corporation has not exercised any corporate functions or done any business of any kind by agent or otherwise in any county in the state, but its business has been operated and conducted by said receiver. That it has not paid, or been required to pay to the state or any subdivision, any franchise or license tax or fee for a permit or other fee as a foreign corporation.

Appellee contends: (1) That it was not doing business in Montgomery county, and so not subject to suit there under section 232, Constitution, and section 7209, Code; and (2) that the courts of Alabama have no fundamental jurisdiction over appellee under the Fourteenth Amendment, because appellee was not doing business in Alabama when the suit was begun.

We notice that appellee does not raise any question as to the sufficiency of the service to justify a personal judgment. Indeed, counsel in brief for appellee, for the purpose of this appeal, concede that the service was effected. We will treat those contentions in the order as made by appellee.

Does section 232, Constitution, prohibit suit against a foreign corporation, though personal service is effected, in every county in Alabama, including that designated by the certificate required by the Constitution, and by section 7209, Code, after it has ceased to do business in Alabama? We think not. It prohibits a foreign corporation from doing business in Alabama without complying with its provisions, and then declares that such corporation may be sued in any county where it does business by agent. This court has held that when such corporation has thus designated a place and an agent residing there, section 232, Constitution, prohibits suits against it in counties where it is not doing business. Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941, 25 L.R.A. 543; General Motors Acceptance Corporation v. Home Loan & Finance Co., 218 Ala. 681, 120 So. 165; Tennessee Valley Oil & Gas Co. v. Martin, 224 Ala. 348, 140 So. 429. But not so as to the county thus designated on a claim arising in Alabama while so doing business. As to such claim it cannot deny that it was doing business in that county or that the agent was authorized to receive service, when the suit was begun, as we will show.

It has also been held that a foreign corporation may be sued in any county in Alabama where personal service may be had if it has not designated a known place of business and an agent for service. St. Mary's Oil Engine Co. v. Jackson Ice & Fuel Co., 224 Ala. 152, 138 So. 834, 838.

It is clear, therefore, that appellee's first contention is not in accord with our construction of section 232, Constitution.

The next contention is that it would not accord appellee due process under the Fourteenth Amendment of the Federal Constitution to sustain a suit in Alabama against a foreign corporation which is not engaged in transacting business in Alabama, at the time suit is begun, though the cause of action arose in Alabama, while it was so engaged and after it had designated a known place of business in Alabama, and an authorized agent residing there.

Undoubtedly, the general rule is that if there is personal service on a defendant, regardless of his residence, on a cause of action which arose in the state where suit is begun and service perfected, and the complaint states a cause of action within the general jurisdiction of the court, it may proceed to a final determination. Goodman v. Winter, 64 Ala. 410, 431, 38 Am.Rep. 13; Ex parte Maxwell, 37 Ala. 362, 79 Am.Dec. 62; Central R. & Banking Co. v. Carr, 76 Ala. 388, 52 Am.Rep. 339. We said in St. Mary's Oil Engine Co. v. Jackson Ice & Fuel Co., supra: "Since the decision of the Supreme Court of the United States in the case of St. Clair v. Cox, 106 U.S. 350, 1 S.Ct. 354, 27 L.Ed. 222, reaffirmed in Conn. Mutual Life Ins. Co. v. Spratley, 172 U.S. 602, 19 S.Ct. 308, 43 L.Ed. 569, the law has been settled that a nonresident corporation, like a nonresident individual, is suable in any state where it may be personally served with process, if the state court has jurisdiction of the subject-matter of the suit."

In many cases there has been a discussion of the meaning of the Constitution and statute prohibiting doing business in Alabama by a foreign corporation without complying with its provisions. Many of them are in connection with the validity of its transactions without such compliance. Others relate to the effect of service on an agent of such a corporation which has not a designated place and an agent there residing; and when the question was whether such agent not so designated was duly authorized to receive service dependent upon whether he was transacting the business of defendant in such sort in Alabama, to sustain such authority.

We have not held, nor has any other court so far as we know, that if there is effectual personal service on a foreign corporation in Alabama, the court was without power to render a judgment because defendant was a foreign corporation not doing business in Alabama, if the cause of action arose in Alabama.

Confusion has arisen from expressions in some of the cases to the effect that to justify service on an agent of such corporation in Alabama, the corporation must be doing business here. But such expressions were made in all cases in connection with a discussion of whether the agent was duly authorized to receive service to be personal on the foreign corporation. In none of them was it necessary when the agent was otherwise duly authorized to receive personal service that the foreign corporation shall be doing business in Alabama when sued on a cause of action which arose in Alabama. And it is immaterial whether the cause of action arose in Alabama or not under section 5691, Code, if the agent who was served was when served duly authorized to receive service as to that action. If he was the agent designated by section 7209, Code, and the cause arose in Alabama, before it withdrew from the state, it is sufficient; but if the agent was duly authorized to be served in Alabama, the court has jurisdiction regardless of where or when it arose.

In Jefferson Island Salt Co. v. E.J. Longyear Co., 210 Ala. 352, 98 So. 119, 122, the question was whether Cowin on whom service was had was such an agent as that in that suit, and on that cause of action it was effectual to be due process in a personal transitory claim which arose outside the state of Alabama. Cowin had been designated the statutory agent under section 7209, Code, and his authority had not been withdrawn, but defendant was not doing business in the state when suit was filed. It was there said that by so doing, defendant "impliedly submitted itself to the jurisdiction of the courts of this state upon the service of process upon its designated agent and, in effect, admitted doing business in the place designated as essential to the venue of an action against it, and it was therefore suable and subject to the service of process at the place and upon the agent so named upon all causes of action arising in this state until it filed a new declaration of abandonment or change as required by said above-quoted provision. This implied assent, however, is confined to transactions or causes of action arising in this state and not those arising in other states. Simon v. So. R.R. Co., 236 U.S. 115, 35 S.Ct. 255, 59 L.Ed. 492; Old Wayne Association v. McDonough, 204 U.S. 8, 27 S.Ct. 236, 51 L.Ed. 345; N.Y.R.R. Co. v. Estill, 147 U.S. 591, 13 S.Ct. 444, 37 L.Ed. 292."

It was held that the statutory designation applied only to causes of...