State v. Hudson
| Decision Date | 27 February 1923 |
| Docket Number | 4840. |
| Citation | 116 S.E. 511,93 W.Va. 209 |
| Parties | STATE EX REL. CUNARD S. S. CO., LIMITED, v. HUDSON, JUDGE, ET AL. |
| Court | West Virginia Supreme Court |
Submitted January 17, 1923.
Syllabus by the Court.
A court of general jurisdiction, having jurisdiction of the subject-matter and (on the face of the record) jurisdiction of the person, will not by writ of prohibition be deprived of its right to pass upon the extrinsic facts determining the jurisdiction of the person.
Original action by the State, on the relation of the Cunard Steamship Company, Limited, against Arthur P. Hudson, Judge, etc., and others, to prohibit respondent judge from proceeding further in an action against relator. Writ refused.
Price Smith, Spilman & Clay, of Charleston, for relator.
Harold A. Ritz, Brown, Jackson & Knight, and Dice & Davis, all of Charleston, for respondents.
The relator, Cunard Steamship Company, Limited, is a corporation organized under and by virtue of the laws of the United Kingdom of Great Britain and Ireland, with its principal place of business in Liverpool, England. It operates a line of steamships between ports in the United Kingdom of Great Britain and Ireland and ports in the United States and other parts of the world for the transportation of freight and passengers for hire, and maintains an office in the city of New York, where it carries on its principal business in this country.
The respondent Mary Jackson Ruffner and Joseph Ruffner, her husband, on July 29, 1922, instituted in the circuit court of Kanawha county, W.Va., an action of trespass on the case against the relator for damages in the amount of $2,990 for alleged personal injuries sustained by the said Mary Jackson Ruffner while a passenger endeavoring to board the Empress of India, a steamship owned and operated by the relator, on her return trip from Cherbourg, France, to the city of New York.
Process directed to the sheriff of Kanawha county, issued July 29 1922, returnable to September rules, 1922. The return showing service in Kanawha county July 29, 1922, on David W. Patterson, and August 2, 1922, on George N. Hancock, as agents of relator, and August 9, 1922, on John C. Bond, as Auditor of West Virginia, recites that relator is doing business as a foreign corporation in said county of Kanawha.
The respondents Mary Jackson Ruffner and Joseph Ruffner, at September rules, 1922, filed their declaration, and a rule to plead and office judgment have been entered at rules against the relator, but no further proceedings have been taken in the case.
The relator filed its petition in this court on January 10, 1923, alleging that it is a foreign corporation, chartered, organized, and doing business under and by virtue of the laws of the United Kingdom of Great Britian and Ireland, with its principal place of business in Liverpool, England, operating a line of steamships between ports in the United Kingdom of Great Britian and Ireland and ports in the United States and other parts of the world, and maintaining an office in the city of New York where it carries on its principal business in this country, but denying that it is doing, or has ever done, business in Kanawha county or the state of West Virginia, and further denying that either the said David W. Patterson or George N. Hancock is, or ever was, agent for the relator. The petition also avers that the purported service has no warrant in law under the facts, and is wholly insufficient to confer jurisdiction over relator; and prays that a rule may be awarded against the respondent Arthur P. Hudson, judge of the circuit court of said Kanawha county, and the respondents Mary Jackson Ruffner and Joseph Ruffner, to show cause, if any they or any of them can, why a writ of prohibition shall not be awarded the relator, prohibiting the said Hudson, as judge of said court, from proceeding further in said action against relator.
The rule prayed for was awarded January 10, 1923, returnable January 16, 1923. At the hearing upon the petition, return of respondents, and the evidence, the chief question presented and discussed in the briefs and oral arguments of counsel is whether the facts constitute "doing business" on the part of relator in Kanawha county, authorizing the bringing of suit against, and service of process upon, it in that county, under section 1, c. 123, and section 7, c. 124, Code (Code 1913, §§ 4734, 4743).
It appears that the said David W. Patterson and George N. Hancock and Kanawha National Bank of Charleston are, and for some time have been, engaged in the city of Charleston, at the places of their other and regular businesses, in selling on commission steamship tickets for relator. They keep in supply and for sale tickets for first, second, and third class passage. They communicate with the steamship company for space before selling first and second class tickets, but sell third class, or steerage, space tickets without inquiring, on the assumption that such accommodation is always available. The ticket accounts of these ticket sellers are periodically checked up at their places of business by inspectors or directors sent by the steamship company for that purpose. Upon the sale of tickets the ticket seller immediately transmits the purchase price therefor, less his commission, with notice of sale of ticket; the company requiring the payment to be remitted three weeks before the sailing date. In some cases the passenger takes the ticket received from the ticket seller to the office of the company at the port of embarkation, and exchanges it for a ship ticket before going to the vessel. In other cases he goes directly to the vessel and presents the ticket for transportation. Otherwise, these ticket sellers have no authority, and do not undertake, to represent the company.
As to whether these facts constitute "doing business" on the part of the steamship company in Kanawha county, W.Va., authorizing the institution of suit against, and service of process upon, it in that county, raises a serious question of law. The petition for a writ of prohibition must clearly show by its allegations that the inferior court is about to proceed in a matter over which it has no jurisdiction. If the facts alleged leave the question of jurisdiction doubtful, the writ will be refused. Haldeman v. Davis, 28 W.Va. 324.
The propriety of entertaining prohibition in a case of this nature is therefore the preliminary...
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