Del Sesto v. Trans World Airlines, Inc.

• Decision Date: 16 January 1962
• Docket Number: Civ. A. No. 2842.
• Citation: 201 F. Supp. 879
• Parties: Nicholas DEL SESTO and David Del Sesto, pro ami, Plaintiffs, v. TRANS WORLD AIRLINES, INC., Defendant.
• Court: U.S. District Court — District of Rhode Island

201 F. Supp. 879

Nicholas DEL SESTO and David Del Sesto, pro ami, Plaintiffs, v. TRANS WORLD AIRLINES, INC., Defendant.

Civ. A. No. 2842.

United States District Court Dist. Rhode Island.

January 16, 1962.

Joseph Mainelli, Providence, R. I., for plaintiffs.

Hinckley, Allen, Salisbury & Parsons, Matthew W. Goring, Providence, R. I., of counsel, for defendant.

DAY, District Judge.

In this action the plaintiffs, father and minor child, seek to recover damages for personal injuries and losses alleged to have been sustained by them by reason of the negligence of the defendant.

In their complaint the plaintiffs allege that they are citizens of the State of Rhode Island and that the defendant, a common carrier engaged in the business of transporting passengers for hire, is a corporation organized under the laws of the State of Delaware, and that it is doing business in the State of Rhode Island through its agent, Eastern Air Lines, Inc.

Plaintiffs' complaint contains two counts. In Count I it is alleged that jurisdiction of this Court is founded on "diversity of citizenship and amount, 28 U.S.C.A. Section 1332"; that prior to and on December 14, 1960, the defendant was engaged in transporting passengers for hire by airplane from New York, New York to Los Angeles, California; that on or about December 5, 1960 the plaintiff Nicholas DelSesto and his wife, Caroleanne DelSesto, in Providence, in this District, purchased two tickets from the defendant for transportation from New York City to Los Angeles and return, and that the ticket issued to said wife provided for the transportation of the plaintiff David DelSesto, her minor child, and assured reasonable accommodations for him; that the plaintiffs and said Caroleanne DelSesto boarded defendant's designated airplane in New York City on or about December 14, 1960 for their transportation to Los Angeles.

Said Count then alleges that it thereupon became the duty of the defendant to provide suitable accommodations for the safe and comfortable transportation of the plaintiff David DelSesto; that it negligently failed to do so, as a result of which said plaintiff was exposed to extremely cold weather for a long period of time and became sick, etc., suffered great pain, was hospitalized and will suffer impairment of his health for a long period of time in the future.

In Count II the plaintiff Nicholas DelSesto, after realleging the allegations contained in Count I as to jurisdiction, as to the business of the defendant, the purchase of said tickets, etc., and the injuries to the said plaintiff David DelSesto, alleges that as a result of said injuries he, the said plaintiff Nicholas DelSesto, has been compelled to expend and will be compelled to expend large sums of money for medical, hospital and nursing services and for medicines in endeavoring to cure his said minor child, the plaintiff David DelSesto, of his injuries.

The complaint concludes with a demand by the plaintiffs for judgment in the sum of $25,000. and costs.

The record discloses that the plaintiffs caused service of the process issued on said complaint to be made upon Eastern Air Lines, Inc. (hereinafter called Eastern), as the agent of the defendant. This service was made in accordance with the provisions of Rule 4(d) (3) of the Federal Rules of Civil Procedure, 28 U.S.C.A., upon one Rene L. Burtner, the then manager of Eastern. At the time Eastern was unquestionably amenable to service of process in this District and service upon Burtner effectuated service on Eastern.

The defendant has moved to dismiss this action or in lieu thereof to quash the service of said process on the ground that it is not doing business in Rhode Island and is not subject to service of process within the State of Rhode Island or this District, and has not been properly served with process in this action.

Defendant has also moved to dismiss on the ground that if the plaintiffs have any claims against it such claims constitute separate claims of a particular plaintiff which cannot be aggregated for purposes of the amount in controversy requirement under 28 U.S.C.A. § 1332(a) and that it does not appear from the allegations of the complaint that the claim of either plaintiff separately is of the requisite amount under the provisions of 28 U.S.C.A. § 1332(a).

The extent of defendant's activities in Rhode Island before and at the time of said service of process, as revealed by affidavits in support of, and in opposition to defendant's motion may be summarized as follows: Defendant was listed in the Providence and vicinity telephone directory as "Trans World Air Lines, Inc., reservations-inf. Ga. 1-5182". A call to this number connected the person calling with the defendant's ticket office in Boston, Massachusetts. Defendant had agreements with practically all of the scheduled air carriers in the United States, including those in Rhode Island, which authorized such air carriers to issue tickets providing for transportation by defendant over its lines. Eastern was one of these carriers. It was authorized by the defendant to make binding contracts in its behalf for transportation on its lines. It determined the identity or suitability of a particular applicant for transportation by the defendant and collected the price of the ticket which evidenced the contract of transportation. It then deducted its commission on the sale of such ticket, as provided in its agreement, and remitted the balance of the selling price to the defendant. Defendant also authorized travel agents to sell transportation over its lines and had similar agreements with about twenty travel agents located in Rhode Island. On infrequent occasions defendant placed advertisements in newspapers in Rhode Island and arranged for "spot announcements" on a radio station located in Rhode Island to stimulate the sale of its travel services. In addition, on infrequent occasions, as it says, salaried personnel employed by it in its Boston, Massachusetts office would make calls on persons in Rhode Island.

On the other hand, the defendant did not actually render any transportation services to or from any point in Rhode Island. It did not maintain any bank account in Rhode Island, had no aircraft or other property in Rhode Island and had no personnel regularly assigned to duty therein.

In a diversity case such as this there are two preliminary questions of law which must first be resolved. The first of these is to be determined by the application of state law, the law of Rhode Island; the second, by the application of federal law. This rule is clearly stated in Pulson v. American Rolling Mill Co., 1948, 1 Cir., 170 F.2d 193, at page 194 where the court held:

"There are two parts to the question whether a foreign corporation can be held subject to suit within a state. The first is a question of state law: has the state provided for bringing the foreign corporation into its courts under the circumstances of the case presented? There is nothing to compel a state to exercise jurisdiction over a foreign corporation unless it chooses to do so, and the extent to which it so chooses is a matter for the law of the state as made by its legislature. If the state has purported to exercise jurisdiction over the foreign corporation, then the

...