Ward v. Studebaker Sales Corporation, No. 7227.

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtBIGGS, MARIS, and CLARK, Circuit
Citation113 F.2d 567
Docket NumberNo. 7227.
Decision Date08 July 1940
PartiesWARD v. STUDEBAKER SALES CORPORATION OF AMERICA.

113 F.2d 567 (1940)

WARD
v.
STUDEBAKER SALES CORPORATION OF AMERICA.

No. 7227.

Circuit Court of Appeals, Third Circuit.

July 8, 1940.


Joseph E. Gold and Thomas J. Minnick, Jr., both of Philadelphia, Pa., for appellant.

J. Horace Churchman and Carl W. Funk, both of Philadelphia, Pa. (Drinker, Biddle & Reath, of Philadelphia, Pa., of counsel), for appellee.

Before BIGGS, MARIS, and CLARK, Circuit Judges.

CLARK, Circuit Judge.

The appellee here is in the embarrassing position of the small boy in the apple orchard. The farmer has pulled the ladder from under the tree. In the case at bar, the farmer is the United States Supreme Court and it has pulled the same ladder from under the various "inferior" Federal courts.1

That ladder was reliance upon the Supreme Court's previous interpretation of Section 51 of the Judicial Code, 28 U.S. C.A. § 112, Southern Pacific Co. v. Denton, 146 U.S. 202, 13 S.Ct. 44, 36 L.Ed. 942. It is true that the majority of the High Court disclaim any intention of repudiation. Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167. To the uninitiated, and among them are included writers in learned periodicals2 the earlier rule appears at least as an alternative ground of decision in the Denton case.

It may be observed that the writers above mentioned and their confreres are in hearty accord with the rationale of the Neirbo decision.3 As one observes, it is a step in the "process of adjusting outmoded

113 F.2d 568
juristic stereotypes to the pragmatic need of exposing these business units to suit". As all agree, it goes far toward removing the discriminatory advantage heretofore enjoyed by foreign corporations. For "the effect of the pre-Neirbo rule was usually to provide a dodge for the corporation rather than to insure an appropriate place for trial". The pundits above quoted from and cited to only regret that the United States Supreme Court did not feel free to go the whole way in abandoning these "outmoded juristic stereotypes". As a writer in the Harvard Law Review puts it

"The aura of discredit that surrounds fictional consent, plus the doubts as to the existence of actual waiver on the facts of the Neirbo case and the problematic validity of what results in deprivation by the state of federal venue privileges might persuade an iconoclastic court with a new `way of looking at corporations' to adopt the more adequate rationale that a corporation established in business within a district is a `resident' there within the meaning of Section 51. Unlike fictional consent, this construction would dispel any doubts as to its applicability to causes of action arising outside the state. This simplification of the problem would necessarily be at the expense of long-settled authority." Venue of Actions Against Foreign Corporations In The Federal Courts (note), 53 Harvard Law Review 660, 664. If the court had felt so inclined, it might have written finis to the curious legal panorama presented by the attempt to fit the corporate ghost into the less spookish requirements of jurisdiction and venue.4 The trouble may have arisen in the draftmanship of the original Judiciary Act of 1789, 1 Stat. 73. It also uses the word "inhabitant". One is reminded of two extracts from the entertaining diary of Senator Maclay: "But it was fabricated by a knot of lawyers who join here and cry to run down any person who will venture to say one word about it."

"The most trifling word catching employed us till after three o'clock." Maclay, Sketches of Debates pp. 95, 98.

The preference for judicial rather than precise amendment can only be attributable to inertia.

The appellee deprived of his ladder must essay some other support for his descent. He quite naturally hunts for it where the fictions grow thickest. The learned authors above cited have suggested certain so far unadjudicated refinements of the "consent to be sued" fiction. They suppose the designation for service of process of a state official, Oklahoma Packing Co. v. Oklahoma Gas & Electric, January 15, 1940, 308 U.S. 531, 309 U.S. 4, 60 S.Ct. 215, 84 L.Ed. 537, rather than the actual appointment of an agent, Neirbo Co. v. Bethlehem Shipbuilding Corp., above cited. They suppose again causes of action not arising out of business done in the state requiring the appointment. They suppose further law-breaking foreign...

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4 practice notes
  • Coastal Club v. Shell Oil Co., No. 632.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • July 11, 1942
    ...Norfolk & W. Ry. Co., 4 Cir., 111 F.2d 127. For supporting learned and witty sally, see Ward v. Studebaker Sales Corp. of America, 3 Cir., 113 F.2d 567, 568. "As all agree, it goes far toward removing the discriminatory advantage heretofore enjoyed by foreign corporations. For `the effect o......
  • Ferrante v. Trojan Powder Co., Civ. A. No. 6785.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • July 30, 1947
    ...U.S. 221, 229, 16 S.Ct. 273, 40 L.Ed. 402; Dehne v. Hillman Investment Co., 3 Cir., 110 F.2d 456; Ward v. Studebaker Sales Corp., 3 Cir., 113 F.2d 567; Beard v. Continental Oil Co., D.C. E.D.La., 42 F.Supp. 310; Barrett v. National Malleable & Steel Casting Co., D.C. E.D.Pa., 68 F.Supp. Whe......
  • Carlisle v. Kelly Pile & Foundation Corporation, Civ. No. 6380.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • June 26, 1947
    ...therefore dispositive of the defendant's contention relative to venue. See also Ward v. Studebaker Sales Corporation of America, 3 Cir., 113 F.2d 567; Robinson v. Coos Bay Pulp Corporation, 3 Cir., 147 F.2d 512; Monroe Calculating Mach. Co. v. Marchant Calculating Mach. Co., D.C.E.D.Pa., 48......
  • Wallingford & Arango v. McCarty, Civ. No. 916.
    • United States
    • U.S. District Court — Panama Canal Zone
    • October 17, 1940
    ...it understands its full import. 69 F. Supp. 1010 This court has also examined the case of Ward v. Studebaker Sales Corporation, 3 Cir., 113 F.2d 567, following, referring to and commenting upon the opinion of the Supreme Court in the case of Neirbo Co. v. Bethlehem Shipbuilding Corporation,......
4 cases
  • Coastal Club v. Shell Oil Co., No. 632.
    • United States
    • United States District Courts. 5th Circuit. United States District Courts. 5th Circuit. Western District of Louisiana
    • July 11, 1942
    ...Norfolk & W. Ry. Co., 4 Cir., 111 F.2d 127. For supporting learned and witty sally, see Ward v. Studebaker Sales Corp. of America, 3 Cir., 113 F.2d 567, 568. "As all agree, it goes far toward removing the discriminatory advantage heretofore enjoyed by foreign corporations. For `the effect o......
  • Ferrante v. Trojan Powder Co., Civ. A. No. 6785.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • July 30, 1947
    ...U.S. 221, 229, 16 S.Ct. 273, 40 L.Ed. 402; Dehne v. Hillman Investment Co., 3 Cir., 110 F.2d 456; Ward v. Studebaker Sales Corp., 3 Cir., 113 F.2d 567; Beard v. Continental Oil Co., D.C. E.D.La., 42 F.Supp. 310; Barrett v. National Malleable & Steel Casting Co., D.C. E.D.Pa., 68 F.Supp. Whe......
  • Carlisle v. Kelly Pile & Foundation Corporation, Civ. No. 6380.
    • United States
    • United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania
    • June 26, 1947
    ...therefore dispositive of the defendant's contention relative to venue. See also Ward v. Studebaker Sales Corporation of America, 3 Cir., 113 F.2d 567; Robinson v. Coos Bay Pulp Corporation, 3 Cir., 147 F.2d 512; Monroe Calculating Mach. Co. v. Marchant Calculating Mach. Co., D.C.E.D.Pa., 48......
  • Wallingford & Arango v. McCarty, Civ. No. 916.
    • United States
    • U.S. District Court — Panama Canal Zone
    • October 17, 1940
    ...it understands its full import. 69 F. Supp. 1010 This court has also examined the case of Ward v. Studebaker Sales Corporation, 3 Cir., 113 F.2d 567, following, referring to and commenting upon the opinion of the Supreme Court in the case of Neirbo Co. v. Bethlehem Shipbuilding Corporation,......

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