Strain v. Chicago Portrait Co.

• Decision Date: 28 November 1903
• Docket Number: 2,804.
• Citation: Strain v. Chicago Portrait Co., 126 F. 831 (W.D. Mo. 1903)
• Parties: STRAIN v. CHICAGO PORTRAIT CO.
• Court: U.S. District Court — Western District of Missouri

126 F. 831

STRAIN v. CHICAGO PORTRAIT CO.

No. 2,804.

United States Circuit Court, W.D. Missouri, Western Division.

November 28, 1903

George P. Norton, for plaintiff.

Wash Adams, for defendant.

PHILIPS District Judge (orally).

This is an action for malicious prosecution, instituted in the circuit court of Jackson county, Mo., and removed to this court. The sheriff's return, which is sought to be quashed, is:

'Executed this writ in Jackson county, Missouri, on the 31st day of July, 1903, by delivering a copy of the same, together with a copy of the petition hereto attached, to C. H. Gurley agent for the within named defendant corporation, the Chicago Portrait Company, they having no business office in Jackson county, Missouri.'

The motion to quash is accompanied by affidavits and exhibits the purpose of which is to show that the alleged agent Gurley was not such agent and did not sustain such relation to the company as to authorize service of this process upon him. Our statutes provide and contemplate that where a nonresident corporation, as the defendant in this case is admitted to be, is doing business in the state, but has no actual situs, as by having an office or appointed agent under the provisions of the statute requiring nonresident corporations doing business in this state to establish an office or agency, etc., upon whom service can be had, and to make report to its principal, service may be had upon the agent of the company wherever found in the state. Now, it appears from the affidavits in this case and the contract between the defendant company and one Gurley that the portrait company is a corporation of Illinois, located at Chicago; that it appoints men to go through certain districts, who are called 'road masters,' to solicit business for the enlargement of pictures and photographs and for the sale of frames; and that these solicitors, or road men, get the business and send the orders in to the company at Chicago; and I presume if the orders are accepted by the company it makes the enlargement of the picture or photograph, or the frames, as the case may be, and then sends them, consigned to the company-- not to the employee or agent, but to itself-- at the place where the picture or frame is to be delivered; and, while it is not exactly clear as to the process of delivery, the agent, when the article reaches its destination, calls for it, and remits the charges to the house at Chicago. Now, what was his relation to the company? He seems to get a certain commission on the work obtained for the company, and he is given a certain district in which to operate in the state of Missouri-- the northwestern part, including the county of Jackson. He employs such assistants and employees as he sees fit in assisting him in this matter of drumming up and getting business for the company and sending these orders in; that is the substance of it.

The question presented is whether that is such an agent, within the purview of the statute, as would authorize service upon the nonresident corporation to entitle the plaintiff to a judgment in personam upon such service. It is a question not wholly free from embarrassment. But, after giving it such investigation as opportunity permits, I have reached the conclusion that, as applied to the particular facts of this case, this party ought not to be held to be such agent as that service could be had upon him. The question has undergone two close and scrutinizing investigations by the Supreme Court of the United States, and I shall not refer to the many cases ruled upon the circuit, because I have not the time nor is it necessary here to do so.

The case of St. Clair v. Cox, 106 U.S. 350, 1 Sup.Ct. 354, 27 L.Ed. 222, and the case of Connecticut Mutual Life Insurance Company v. Spratley, 172 U.S. 602, 19 Sup.Ct. 308, 43 L.Ed. 569, are the most interesting, because they present the reasons for the rule, and lay down some underlying fundamental principles which ought to guide the court in determining such cases, without being influenced or controlled so much by the particular and specially ruled cases.

Mr. Justice Field in St. Clair v. Cox, 106 U.S. 355, 1 Sup.Ct. 359, 27 L.Ed. 222, would seem to indicate that his judgment was influenced largely by the question as to whether or not the subject-matter of litigation in the case in which the service was had upon the imputed agent in any wise pertained to his functions as the agent or employee of the company. He said:

'All that there is in the legal residence of a corporation in the state of its creation consists in the fact that by its laws the corporators are associated together and allowed to exercise as a body certain functions, with a right of succession in its members. Its officers and agents constitute all that is visible of its existence, and they may be authorized to act for it without as well as within the state. There would seem, therefore, to be no sound reason why, to the extent of their agency, they should not be equally deemed to represent it in the states for which they are respectively appointed when it is called to legal responsibility for their transactions. * * * If a state permits a foreign corporation to do business within her limits, and at the same time provides that in suits against it for business there done process shall be served upon its agents, the provision is to be deemed a condition of the permission, and corporations that subsequently do business in the state are to be deemed to assent to such condition as fully as though they had specially authorized their agents to receive service of the process. Such condition must not, however, encroach upon that principle of natural justice which requires notice of a suit to a party before he can be bound by it. It must be reasonable, and the service provided for should be only upon such agents as may be properly deemed representatives of the foreign corporation. * * * We do not, however, understand the law as authorizing the service of a copy of the writ, as a summons, upon an agent of a foreign corporation, unless the corporation be engaged in business in the state, and the agent be appointed to act there. We so construe the words 'agent of such corporation within this state.' They do not sanction service upon an officer or agent of the corporation who resides in another state, and is only casually in the state, and not charged with any business of the corporation there.'

Further on, in discussing the case of Newell v. Railway Company, 19 Mich. 344, the court said:

'Admitting, therefore, for the purpose of this suit, that in given cases the foreign corporation would be bound by service on its treasurer in Michigan, this could only be so when the treasurer, the then official and officer then in a manner impersonating the company, should be served. The transaction of business by the corporation in the state, general or special, appearing, a certificate of service by the proper officer on a person who is its agent there would, in our opinion, be sufficient prima facie evidence that the agent represented the company in the business. It would then be open, when the record is offered as evidence in another state, to show that the agent stood in no representative character to the company, that his duties were limited to those of a subordinate employee or to a particular transaction, or that his agency had ceased when the matter in suit arose.'

In this case it was ruled that where the officer's return simply stated that he had served the agent of the nonresident corporation, and the return did not disclose the fact that the defendant company was doing business in the state, and the record of the...