Trumble Gas Trap Co. v. Chicago, R.I. & P. Ry. Co.

• Decision Date: 15 September 1925
• Docket Number: 15317.
• Citation: 239 P. 668,115 Okla. 18,1925 OK 732
• Parties: TRUMBLE GAS TRAP CO. v. CHICAGO, R.I. & P. RY. CO.
• Court: Oklahoma Supreme Court

239 P. 668

115 Okla. 18, 1925 OK 732

TRUMBLE GAS TRAP CO. v. CHICAGO, R.I. & P. RY. CO.

No. 15317.

Supreme Court of Oklahoma

September 15, 1925

Syllabus by the Court.

Venue of actions against foreign corporations is fixed by Const art. 9, § 43, and in a case against a foreign railway company, where the cause of action arose without the state and where plaintiff's residence is not shown, the action must be brought in a county where such railway company has a designated agent for service of process, by reason of Comp St. 1921, § 245, or in which an agent of such corporation may be found, by reason of section 43, supra.

Railroads are required by Comp. St. 1921, § 245, to designate agents for service in each county into which their lines run or in which their business is transacted. In counties in which no service agent is required to be appointed under the foregoing section, the alternative methods of service provided for in section 247 have no application.

A soliciting freight agent, traveling from place to place though maintaining a residence and office in one of the counties in his territory, is not such an agent, nor is his business of such nature, as that service on him will confer jurisdiction on a court of that county over the defendant railroad company.

Commissioners' Opinion, Division No. 1.

Appeal from Court of Common Pleas, Tulsa County; Saul A. Yager Judge.

Action by the Trumble Gas Trap Company against the Chicago, Rock Island & Pacific Railway Company, for damages. From an order dismissing the cause, after sustaining a motion to quash service of summons, plaintiff appeals. Affirmed.

Plaintiff commenced its action in the court of common pleas of Tulsa county, by filing therein its petition, in which it was alleged, in substance, that on or about September 14, 1922, the defendant, Chicago, Rock Island & Pacific Railway Company, had in its possession at its station at Eldorado, Ark., a certain Trumble gas trap, the property of plaintiff, having received the same as a common carrier at some point to the petitioner unknown and from a connecting carrier to the plaintiff unknown, that said property was of the value of $1,000, and that the defendant converted said property to its own use by selling and delivering same to some person or persons unknown to plaintiff.

Thereafter summons was served in the action by delivering a copy thereof to H. E. Hurst, at his office and usual place of business in said county; the said H. E. Hurst being a soliciting freight agent of the defendant. The return of summons further showed that neither the president, mayor, chairman of the board of directors or trustees, or other chief officer of the defendant, nor its cashier, treasurer, secretary, or clerk could be found in said county, and that no local superintendent of repairs and no station keeper of said defendant was found in said county, and that no person residing in Tulsa county had been designated by defendant upon whom process might be served.

Thereafter defendant filed its motion to quash said service, and, upon a hearing of said motion October 29, 1923, evidence was taken. At the conclusion of said hearing, the motion to quash was sustained, and, plaintiff not having elected to amend its petition or to secure service in any other manner, the court entered an order dismissing the cause. To reverse this action of the trial court, plaintiff has brought the case here by petition in error with the case-made attached for review. The parties will be hereafter referred to as plaintiff and defendant, respectively, as they appeared in the trial court.

Phil W. Davis, Jr., of Tulsa, for plaintiff in error.

W. F. Collins, W. R. Bleakmore, and A. T. Boys, all of El Reno, for defendant in error.

LOGSDON, C. (after stating the facts as above).

Only one question of primary importance is presented by this proceeding, and that is whether the trial court acquired jurisdiction of the defendant through the kind of service had in the case. The other question presented is merely incidental to this.

Jurisdiction in this case, in so far as venue may affect it, is limited to the question of whether H. E. Hurst was an agent of the defendant in Tulsa county within the meaning of any of the statutory provisions relating to service of process on railroad companies. This is so because in plaintiff's petition it is not alleged that plaintiff is a resident of Tulsa county, while it affirmatively appears from said petition that the cause of action arose in the state of Arkansas. Therefore only the first provision of section 43, art. 9, of the Constitution, relating to venue in such actions is applicable here. That portion of section 43 material to be considered reads:

"Suit may be maintained against a foreign corporation in the county where an agent of such corporation may be found. * * *" What meaning was intended to be conveyed by the word "agent" in this constitutional provision? By preceding language of this section every foreign corporation, before it is licensed to do business in the state, must designate an agent residing in the state. It is then provided:

"Service of summons or legal notice may be had on such designated agent and such other agents as now are or may hereafter be provided by law."

Evidently it was intended by this language and that previously quoted to make venue of the action depend on the presence and service upon within the county of a designated agent for that purpose or of "such other agents as now are or may hereafter be provided by law." Admittedly there was no designated agent of defendant for service within Tulsa county. Therefore the venue and jurisdiction in this case are dependent on whether H. E. Hurst was one of "such other agents as now * * * provided by law" upon whom service of process could be legally had.

Comp. Stat. 1921, § 245, provides:

"Every railroad company and every stage company doing business in this state or having agents doing business therein for such company, is hereby required to designate some person residing in each county into which its railroad line or stage route may or does run, or in which its business is transacted, on whom all process and notices issued by any court of record or justice of the peace of such county may be served."

It is clearly evident from this language that a railroad company is not required to designate a service agent in any county of the state except those into which its line of railroad extends, "or in which its business is transacted." Defendant's line of railroad does not extend into Tulsa county, and, unless its "business is transacted" there, it was not required to have a service agent therein. The testimony of H. E. Hurst upon this point is thus abstracted in plaintiff's brief:

On direct examination by defendant:

"I reside in Tulsa, Okl., and on October 11, 1923 (the date of the service of summons), my occupation was soliciting agent for the Rock Island; I am not managing agent for the Rock Island, and was not on October 11, 1923. The Chicago, Rock Island & Pacific Railway Company does not own or operate any railroad in Tulsa county, Okl. I was not on the date mentioned freight agent of the defendant and am not now, and was not on that date and am not now its agent appointed to sell tickets, nor on that date was I local superintendent of repairs in Tulsa county, nor am I the president of the defendant. I do not bill any freight or sell any tickets over the lines of the defendant, and did not on the date of the service. I was never appointed the defendant's service agent. I was not the defendant's cashier or secretary on the date of service, and am not a clerk of any of the officers, cashier, president, treasurer, or any of those."

On cross-examination:

"My office is at 622 Petroleum building. The office of the soliciting freight agent of the Rock Island was 622 Petroleum building on the date of the service of the summons. I solicit freight and travel the territory around here. On the date of the service of the summons the defendant had an office in this city and county, a commercial agent's office. I was present on that date at the time the summons was delivered to me, in charge of that office and place of business of the Chicago, Rock Island & Pacific Railway Company. On that date I resided in Tulsa county. On that date the defendant had no other office or place of business in Tulsa county that I know of, and I would know of it if there were another office. If persons applied to me for transportation, I referred

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