Wall v. Chesapeake & O. Ry. Co.

Decision Date06 June 1899
Docket Number564.
PartiesWALL v. CHESAPEAKE & O. RY. CO.
CourtU.S. Court of Appeals — Seventh Circuit

Clair E. More, for plaintiff in error.

Joseph Mann, for defendant in error.

Before WOODS and JENKINS, Circuit Judges, and BUNN, District Judge.

BUNN District Judge.

This action was brought by the plaintiff in error, a citizen of Illinois, in the superior court of Cook county, Ill., as administratrix, to recover damages for an injury resulting in the death of Edward Wall at Cincinnati, Ohio, in 1896. The defendant is a corporation organized under the laws of the state of Virginia, having its principal office at Richmond in the state of Virginia, and at the time of the accident was engaged in operating its railroad, running from Cincinnati in the state of Ohio, and Lexington, in the state of Kentucky, to Fortress Monroe, in the state of Virginia, but did not own or operate any railroad in the county of Cook or in the state of Illinois. The deceased was a cattle shipper employed by Nelson Morris & Co., of Chicago, to accompany live stock from Chicago to Newport News, Va. The injury occurred on or about the 24th day of May, 1896, in the city of Cincinnati, on the defendant's road, and was occasioned by deceased being struck by one of the street bridges extending over the railroad under which the train had to pass, while he was riding on top of the train. The summons issued by the superior court of Cook county was returned with an indorsement of service as follows:

'Served this writ on the within-named Chesapeake & Ohio Railway Company, a corporation, by delivering a copy thereof to U. L Truitt, the Northwestern passenger agent of said corporation, this 12th day of April, 1898. The president of said corporation not found in my county.

'James Pease, Sheriff,

'By B. Gilbert, Deputy.'

After this return was made, and the declaration filed, the defendant proceeded to remove the case to the United States circuit court for the Northern district of Illinois, and, when so removed, entered its special appearance for the purpose of moving to set aside the return of the summons on the ground that U. L. Truitt, the person on whom it was served, was not the defendant's agent, or a person on whom proper service of the summons could be made. The motion to set aside was founded upon the affidavits of Ulysses L. Truitt and H. W. fuller, the general passenger agent of the defendant, setting forth that at the time of the service Truitt was in the employ of the defendant company for the purpose of influencing persons who might be desirous of traveling from Chicago and vicinity to points east of Cincinnati and Lexington to patronize those railway lines leading out of Chicago that made connections with defendant's road at Cincinnati and Lexington; that Truitt had no other connection with the defendant, and had no power or authority from said defendant, either express or implied, to make any contract or rates for transportation over the railway of the defendant, and that his authority was strictly limited to conveying information concerning existing rates as established by the officials of the defendant company, and concerning the connections and time made and facilities possessed by the defendant in and about its passenger traffic, and had no other authority whatever; that the defendant was a resident of the state of Virginia, having its principal office at Richmond, in that state, and was not operating any railway in said county of Cook, and had no place of business therein. Upon these affidavits (no counter affidavits being filed) the court below, by its order, set aside the service of the summons, to which ruling the plaintiff duly excepted. Thereupon counsel for the plaintiff stated in open court that no further efforts would be made to obtain service upon the defendant in that court, and consented in open court that the action be dismissed out of that court for want of prosecution, and the same was so dismissed for want of service; the plaintiff in open court waiving all errors arising upon that portion of the order of the court subsequent to the order quashing the service of summons. Judgment was thereupon entered for the defendant, and it is to reverse this judgment that the case is brought here by writ of error.

The sufficiency of the service of summons upon Truitt was not an open question in the United States courts of this circuit at the time this action was brought. That question had already been adjudged by this court in Fairbank & Co. v. Cincinnati, N.O. & T.P. Ry. Co., 9 U.S.App. 212, 4 C.C.A. 403, 54 F. 430, where just such a service was held insufficient, and was set aside on motion in the United States circuit court, and the judgment of that court affirmed by this court. Section 4 of the Illinois practice act, as amended by the act of 1877 (3 Starr & C.Ann.St.Ill. 1896, p. 2986), provides that:

'An incorporated company may be served with process by leaving a copy thereof with its president if he can be found in the county in which the suit is brought, if he shall not be found in the county, then by leaving a copy of the process with any clerk, secretary, superintendent, general agent, cashier, principal, director, engineer, conductor, station agent or any agent of said company found in the county.'

In Railway Co. v. McDermid, 91 Ill. 170, it was held that this section embraced foreign corporations having property in Illinois, and doing business in the state by local agents, and that such corporations might be brought into court by service of process on such agents. In Railroad Co. v. Crane, 102 Ill. 249, it was held that a railroad company organized under the laws of Missouri, with its office and principal place of business and its tracks in that state, but running trains regularly over the bridge across the Mississippi river at Quincy, Ill., where it had a local agent authorized to make contracts for the transportation of freight and passengers, could be sued in Illinois, and brought into court by the service of process on such local agent. But those cases were held by this court to be widely different from the case then before the court. The defendant in that case had no agent or other representative in Illinois, authorized to bind it by any kind of contract. It had no property or officer, and no office for the transaction of business, in the state. The person on whom service was made was a mere solicitor of business, and not an officer or agent within the meaning of the law.

No contention is made in the case at bar that the decision of this court in Fairbank & Co. v. Cincinnati, N.O. & T.P. Ry. Co. is not decisive upon the question of the sufficiency of the service. Truitt was not an agent of the company on whom service could lawfully be made under the above statute of Illinois. Suppose the president of the defendant company had placed a fee in the hands of a circus rider or traveling salesman going about the country, and told him to turn all the travel he could in the way of his road; this would not make such person an agent of the company, to stand in its place for the purpose of service of process upon the company. But the contention is that the practice adopted to get rid of the service by motion to quash and set aside was irregular and unjustified in law, and that, instead of proceeding by motion, the defendant should have filed a plea in abatement, and had a trial of the question by a jury. This is an important and radical contention, and the ground upon which it is sought to support it is that it is the practice in such cases recognized and established by the supreme court of the state of Illinois. That court first made such a ruling in Railway Co. v. Keep, 22 Ill. 9, and has in numerous decisions since adhered to it, and it is contended that this court should follow the state practice. But this contention cannot be supported, either upon reason or authority. Section 914, Rev. St., provides as follows:

'The practice, pleadings and forms and modes of proceeding in civil causes, other than equity and admiralty causes in the circuit and district courts, shall conform as near as may be to the practice, pleadings and forms and modes of proceeding existing at the time in like causes in the courts of record of the state within which such circuit or district courts are held, any rule of court to the contrary notwithstanding.'

It was held in Nudd v. Burrows, 91 U.S. 426, that the practice act in Illinois, which provided that the court should instruct the jury only as to the law, and that they should, on their retirement, take the written instructions of the court, and return them with their verdict, was not binding upon the federal courts sitting in that state. It was said by the supreme court in that case:

'The purpose of the provision is apparent upon its face. No analysis is necessary to reach it. It was to bring about uniformity in the law of procedure in the federal and state courts of the same locality. It had its origin in the code enactments of many of the states. While in the federal tribunals the common-law pleadings, forms, and practice were adhered to, in the state courts of the same district the simpler forms of the local code prevailed. This involved the necessity on the part of the bar of studying two distinct systems of remedial law, and of practicing according to the wholly dissimilar requirements of both.'

In Railroad Co. v. Horst, 93 U.S. 291, this construction was reaffirmed, and it was held that a motion for a new trial is not a mere matter of proceeding or practice in the district and circuit courts, and therefore not within the provision of the act of conformity, and could not be affected by any state law upon the subject. In this case the circuit court had...

To continue reading

Request your trial
17 cases
  • Lewis Blind Stitch Co. v. Arbetter Felling Mach. Co.
    • United States
    • U.S. District Court — Northern District of Illinois
    • October 17, 1910
    ... ... Manro v. Almeida, 10 Wheat. 473, 6 ... L.Ed. 369. The same rule was held again in 1873, in ... Atkins v. Fiber Disintegrating Co., 18 Wall. 272, 21 ... L.Ed. 841, and finally in Re Louisville ... Underwriters, 134 U.S. 488, 10 Sup.Ct. 587, 33 L.Ed ... 991; but it is true that the ... properly served, and when it is not doing business in the ... district. Wall v. Chesapeake & O.R. Co., 95 F. 398, ... 37 C.C.A. 129; Forrest v. Pittsburg Bridge Co., 116 ... F. 357, 53 C.C.A. 577. This practice is preferred, because ... ...
  • North Wisconsin Cattle Company v. Oregon Short Line Railroad Company
    • United States
    • Minnesota Supreme Court
    • July 31, 1908
    ... ... supra; Gaudie v. Northern, 34 Wash. 34; McGuire ... v. Great Northern Ry. Co., 155 F. 230; Abraham v ... Southern, 149 Ala. 547; Wall v. Chesapeake & O. Ry ... Co., 95 F. 398; Earle v. Chesapeake & O. Ry ... Co., 127 F. 235; Maxwell v. Atchison, T. & S.F.R ... Co., 34 F. 286; ... ...
  • Honerine Min. & Mill. Co. v. Tallerday Steel Pipe & Tank Co.
    • United States
    • Utah Supreme Court
    • December 5, 1906
    ... ... the state." (Goodhope Co. v. Wire Fencing Co., ... 22 F. 635; Glass Co. v. Glass Mfg. Co., 87 F. 418; ... Clews v. Iron Co., 44 F. 31; Wall v ... Railway, 95 F. 398; Morawetz on Private Corporations, ... sec. 522; Wire Mill Co. v. Barb Wire Co., 32 F. 802.) ... In the ... ...
  • Knight v. Illinois Cent. R. Co.
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 13, 1910
    ... ... a decision of the state Supreme Court as the proper mode of ... procedure under the common law. Wall v. Chesapeake & Ohio ... R. Co. (7th Circuit) 95 F. 398, 402, 37 C.C.A. 129; ... Sanford v. Town of Portsmouth, Fed. Cas. No. 12,315, ... decided ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT