Walsh v. Atlantic Coast Line R. Co.
| Decision Date | 19 February 1916 |
| Docket Number | 679,680. |
| Citation | 256 F. 47 |
| Parties | WALSH v. ATLANTIC COAST LINE R. CO. (two cases). |
| Court | U.S. District Court — District of Massachusetts |
Hurlburt Jones & Cabot and Cunningham & Ronan, all of Boston, Mass for plaintiffs.
Putnam Putnam & Bell and Arthur F. Ray, all of Boston, Mass specially, for defendant.
These are two actions at law begun by writs issued out of this court. That by Mrs. Walsh is to recover damages for personal injuries received by her in the state of Florida through the alleged negligence of the defendant, and that by her husband is to recover for loss of consortium. The writs were served by delivering this summons and attested copy of each writ 'to J. H. Johnson, New England agent of said corporation, in hand, at its usual place of business, 248 Washington street, Boston' (marshal's return). The defendant has filed a motion 'to vacate and quash the plaintiff's alleged service of the writ, * * * and to dismiss said writ, for want of jurisdiction over the person of said defendant,' for certain reasons therein alleged; the principal ones being that the defendant is a Virginia corporation, and at the time of the alleged service was not present, nor doing business within this district, nor subject to service here, and that Johnson at that time was not 'such an agent of the defendant as to permit service upon the defendant by delivering an original summons of the writ * * * to him, * * * and that no due service has been made on the defendant. ' Of course, under the Massachusetts practice, a motion to dismiss is properly used only with reference to defects or lack of jurisdiction which appear upon the face of the papers. This motion is in effect a plea in abatement; it has been treated as such by the parties; and I shall deal with it in the same way. There was a hearing upon it before me, at which witnesses testified orally, and documentary evidence was introduced.
The material facts are as follows:
The plaintiffs are residents and citizens of Massachusetts; the defendant is a Virginia corporation, as alleged in the writ. It owns and operates a railroad in certain of the Southern States, no part of which comes into Massachusetts. It does not own or operate any railroad or transport any passengers or freight within this state. For about 20 years Johnson has been New England agent for the Atlantic Coast Line (which is a combination of the freight departments of the defendant company and of the Merchants' & Miners' Transportation Company), and has also been New England agent of the defendant for the solicitation of passengers; his duty being to try to get passengers to travel upon the defendant's line. In connection with this work, the defendant itself hired, under a written lease from one Marsters to it, part of a shop on Washington street, Boston, paying therefor $3,300 a year rent. On the window of this shop is a prominent sign, bearing the words 'Atlantic Coast Line'; other sings there bear the words 'Tickets' and 'Freight.' Johnson paid the running expenses of this office out of money sent to him by the defendant for that purpose, including the pay of certain employes, whom he hired and discharged on orders from the defendant's home office. He kept no books for the defendant, and no bank account was here kept in its name. At the time of the service upon him, he had no tickets of the defendant for sale. The defendant paid him a monthly salary, and he did not receive any commissions on the business which he procured. He was employed to drum up trade, both freight and passenger, for the defendant.
When persons came there to buy tickets, Johnson sent to one of the local railroads and purchased the tickets on his credit, or that of the defendant company, delivering the tickets to the passenger, and paid the local road for them. Receipts for deposits for tickets taken by him were made on a blank having across the end:
-- and were signed 'J. H. Johnson, N.E.A.' (i.e., 'New England Agent '). He gave to the local railroad from which he obtained tickets an I.O.U., signed 'J. H. johnson, N.E.A.' He sold tickets on the defendant's railroad, as well as connecting lines, which he obtained in this way. He did not, except in a few unusual cases, issue bills of lading for freight. Those were regularly issued by the Merchants' & Miners' Transportation Company, upon a form which bore in conspicuous letters 'Atlantic Coast Line,' and also bore 'J. H. Johnson, New England Agent, 248 Washington Street, Boston.' Blank forms of these bills of lading were kept at the Washington street office or shop; and there was also kept at the same place a supply of the defendant's time-tables, on which Johnson's name appeared as 'New England Agent.' It was not explicitly proved that the form of receipt, or I.O.U., used by Johnson, was known to, or approved by, the defendant; but Johnson testified that he had done business in the same way for more than 20 years, that the way he did business was the general way of doing it in other places, that he thought the defendant must know about it, and that the defendant had never objected to it. He impressed me as being a truthful and accurate witness, and I see no reason to doubt that the facts are as stated in his testimony. Up to January 1, 1915, there had been on sale in Johnson's office mileage books of the defendant company; but on that date, owing to objections raised by the New England railroads, their sale was withdrawn; and at the time of the service of the writ, August 30, 1915, there were, as above stated, no tickets on sale by Johnson. In December, 1914, one of the traveling auditors of the defendant had called at Johnson's office.
Johnson's activities for the defendant were naturally confined to matters in which it was interested, arising in that part of New England of which Boston is the business center. It is not alleged, and does not appear, that he sold the tickets or had anything to do with the contract of transportation under which the plaintiff was riding when injured, or that said contract was made in this state. Except as to the matters above stated and those naturally connected therewith, Johnson was not, as between him and the defendant, authorized to represent it, and he had no express authority from it to receive service of process.
Two questions are presented:
(1) Was ...
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