Rishmiller v. Denver & R. G. R. Co.

• Decision Date: 22 September 1916
• Docket Number: No. 19639[60].,19639[60].
• Citation: 134 Minn. 261,159 N.W. 272
• Court: Minnesota Supreme Court
• Parties: RISHMILLER v. DENVER & R. G. R. CO.

134 Minn. 261

159 N.W. 272

RISHMILLER

v.DENVER & R. G. R. CO.

No. 19639[60].

Supreme Court of Minnesota.

Sept. 22, 1916.

Appeal from District Court, Hennepin County; W. E. Hale, Judge.

Action by George H. Rishmiller against the Denver & Rio Grande Railroad Company. From an order vacating an order of dismissal and reinstating the case, defendant appeals. Affirmed.

Syllabus by the Court

Under chapter 218, Laws 1913 (Gen. St. 1913, § 7735), providing that in an action against a foreign corporation service may be made on any agent for the solicitation of freight or passenger traffic in this state, jurisdiction may be acquired over a foreign corporation doing business in the state by service on such an agent in a transitory action, although the cause of action did not arise in the state.

A district court has jurisdiction to make an order, upon proper notice, vacating an order of dismissal and reinstating the case. Such an order is appealable. Cobb, Wheelwright & Dille, of Minneapolis, and E. N. Clark and R. G. Lucas, both of Denver, Colo., for appellant.

Hall & Tautges, of Minneapolis, for respondent.

HALLAM, J.

[1] 1. Defendant is a railroad corporation incorporated in Colorado. Plaintiff brings this action for injuries received in that state. Service was made on a soliciting freight agent in this state. The question is, Did the court acquire jurisdiction? The agent served was one of the class on which the statute provides service may be made. Chapter 218, Laws 1913.

In Armstrong v. N. Y. C. & H. R. R. Co., 129 Minn. 104, 151 N. W. 917, it was held that this statute is valid and that service upon such an agent gave the court jurisdiction. In that case the cause of action arose out of a shipment of goods originating in this state.

In Lagergren v. Penn. R. Co., 130 Minn. 35, 152 N. W. 1102, the cause of action arose in Pennsylvania. Service was made on a similar agent. It was contended that the Armstrong Case did not apply, but that the case was ruled by Simon v. Southern Ry. Co., 236 U. S. 115, 35 Sup. Ct. 255, 59 L. Ed. 492, in which it was held that a state court could acquire jurisdiction over a foreign corporation by service upon a public officer designated by statute for that purpose only in case of causes of action arising in the state where the action is brought. This court held that the Armstrong Case did apply and that the Simon Case did not.

The Lagergren Case is on all fours with this case. We are asked to overrule both the decisions mentioned, particularly the decision on the Lagergren Case. We are of the opinion that we should not overrule either. Both cases were ably presented by counsel and thoroughly considered by the court. We think the conclusions reached were sound. In the Lagergren Case the reasons given for applying the Armstrong Case and distinguishing the Simon Case were not amplified, but the case was nevertheless considered in all its bearings. Further consideration confirms us in the view that the principles applied in the Simon Case cannot be applied here.

This case differs from the Armstrong Case only in the fact that the cause of action pleaded here arose out of the state. In the Armstrong Case the fact that the cause of action arose out of business transacted in the state was referred to, but we do not regard that fact as of controlling importance. The statute is broad enough to authorize service upon such an agent in a case where the cause of action did not arise in the state, and we cannot hold the statute void.

The Simon Case was this: The action was commenced in Louisiana against a Virginia railway corporation doing business in the state upon a cause of action which arose in Alabama. Service was made on the secretary of state under a statute which provides that in the event a foreign corporation doing business in the state fails to designate an agent upon whom process may be served service upon such public officer is service on the corporation. The court held that the state could confer jurisdiction upon its courts by service upon such an involuntary agent only in suits upon causes of action arising in the state. This was a reaffirmance of a principle laid down some years before in Old Wayne Life Ass'n v. McDonough, 204 U. S. 8, 27 Sup. Ct. 236, 51 L. Ed. 345. Defendant contends that the same principle applies to this case. The court in the Simon Case did not so hold. The court refrained from ‘discussing the right to sue on a transitory cause of action and serve the same on an agent voluntarily appointed by the foreign corporation.’

We are aware that it has been held that the principle of the Simon Case must be extended to cases where a foreign corporation is brought into court by service upon a voluntary agent of the corporation. Fry v. Denver & R. G. R. Co. (D. C.) 226 Fed. 893;Takacs v. Philadelphia & R. Ry. Co. (D. C.) 228 Fed. 728. We cannot follow these decisions. It seems to us that the court in deciding the Simon Case did not intend that result. If the Simon Case has any bearing upon a case of service upon the voluntary agents of foreign corporations, it would seem that its application to such cases must be general, and that in no case can jurisdiction be obtained over a foreign corporation on a cause of action arising outside of the state where the action is brought. Some courts held that doctrine before the decision in the Simon Case. Olson v. Buffalo Hump Min. Co. (C. C.) 130 Fed. 1017; Central Railroad & Banking Co. v. Carr, 76 Ala. 388, 52 Am. Rep. 339; see 19 Cyc. 1339. Many courts have held otherwise. Mooney v. Buford & George Mfg. Co., 72 Fed. 32, 18 C. C. A. 421;Denver & R. G. R. Co. v. Roller, 100 Fed. 738, 41 C. C. A. 22, 49 L. R. A. 77;Smith v. Empire State-Idano Mining & Development Co. (C. C.) 127 Fed. 462;Reeves v. Southern Ry. Co., 121 Ga. 561, 49 S. E. 674,70 L. R. A. 513, 5 Ann. Cas. 207; Hawkins v. Fidelity & Casualty Co. of N. Y., 123 Ga. 722, 51 S. E. 724;Hagerstown Brewing Co. v. Gates, 117 Md. 348, 83 Atl. 570;Johnston v. Trade Ins. Co., 132 Mass. 432;Patton v. Casualty Co., 119 Tenn. 364, 104 S. W. 305.

Prior to the Lagergren Case the point was never decided by this court. See Banks v. Pennsylvania R. Co., 111 Minn. 48, 126 N. W. 410. We think, however, that the general understanding of the bench and bar of the state for many years has been that transitory causes of action against foreign corporations are suable in this state, no matter where the cause of action arose, if the corporation can be found in the state for service of process upon it. There is no doubt that very many such actions have proceeded to judgment in our courts without question as to jurisdiction. Many foreign railroad corporations operate lines and do large business in this state. Many foreign mercantile corporations operate plants or places of business in this state and have officers here. It appears to us that jurisdiction may be acquired over these corporations by service in this state upon the voluntary agents through whom they do their business, in any transitory action, no matter where the cause of action arose. It appears to us the United States Supreme Court has distinctly recognized this rule in many cases. B. & O. R. R. Co. v. Harris, 12 Wall. 65,...