Zambrino v. Galveston, H. & S.A. Ry. Co.

• Decision Date: 19 March 1889
• Citation: 38 F. 449
• Parties: ZAMBRINO v. GALVESTON, H. & S.A. RY. CO.
• Court: U.S. District Court — Western District of Texas

38 F. 449

ZAMBRINO v. GALVESTON, H. & S.A. RY. CO.

United States Circuit Court, W.D. Texas, El Paso Division.

March 19, 1889

A. G Wilcox, W. B. Sloan, and McGinnis & McGinnis, for plaintiff.

Davis Beall & Kemp, for defendant.

MAXEY J.

This suit was instituted by Pablo Zambrino against the Galveston Harrisburg & San Antonio Railway Company to recover damages resulting from personal injuries received by Zambrino in El Paso county, while employed as a laborer upon a construction train of the railway company, which was at the time engaged in the work of repairing the road. Plaintiff is a citizen of the state of Chihuahua in the republic of Mexico, and the defendant is a corporation created by special acts of the legislature of this state. Sp. Laws Tex. 1870, p. 45 et seq.; Sp. Laws 1850, p. 194 et seq. A plea in abatement is filed by the defendant, in which is asserted its immunity from suit within this judicial district, and to this plea exceptions are interposed by the plaintiff.

Several points have been raised in argument, mainly technical in their character, which, at the request of the parties, will not be considered, and the sole question to be determined may be thus stated: Is the defendant suable in the circuit court of the United States within the Western judicial district of Texas? It is averred in the plea that the domicile and principal office of defendant is located at the city of Houston, which is within the Eastern judicial district. The pertinent facts bearing upon the issue presented are agreed upon by the parties, and will be regarded as incorporated into the plea, and thus considered by the court in connection with the question of law to be decided. They are as follows The plaintiff is a citizen of Mexico, and his cause of action arose in El Paso county, Tex. The defendant is a domestic railway corporation, having its principal office at the city of Houston within the Eastern judicial district, and a railway line extending from the city of Houston through the Western judicial district into the city of El Paso. At the latter place, and at other stations along the line of its road, the defendant has agents and servants through whom its usual and ordinary business of a railway common carrier is transacted, and upon whom process may be served under the laws of Texas. The act of congress, approved March 3,1887, regulating the jurisdiction of the circuit courts, provides:

'That the circuit courts of the United States shall have original cognizance, concurrent with the courts of the several states, of all suits of a civil nature, at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, * * * in which there shall be a controversy between citizens of different states, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid. * * * But no person shall be arrested in one district for trial in another in any civil action before a circuit or district court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant; but, where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall be brought only in the district of the residence of either the plaintiff or the defendant.' 24 St.at large, 552, 553. See, also, 25 U.S.St. (1887-1888) pp. 433, 434.

Excepting cases where jurisdiction is founded only on the fact that the action is between citizens of different states, suit must, in pursuance of the act of 1887, be brought in the district of which the defendant is an inhabitant. Such was not the law as it aforetime existed in the act of March 3, 1875, and prior judiciary acts. The corresponding provision of the act of March 3, 1875, reads as follows:

'And no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, or in which he shall be found at the time of serving such process or commencing such proceeding.' 18 St.at Large, 470; Desty, Fed. Proc. (6th Ed.) p. 131, Sec. 629a.

The act of 1875, in this particular, was a substantial re-enactment of the act of 1789, (Rev. St. Sec. 739.) Ex parte Schollenberger, 96 U.S. 375. It will thus be seen that an important clause of the act of 1875 is left out of the act of 1887, to-wit: 'Or in which he shall be found at the time of serving such process or commencing such proceeding. ' It follows that, if the defendant be suable in this district, such result springs only from the fact of local inhabitancy.

Before discussing the question as to whether a domestic railway corporation can be an inhabitant of any district other than that in which its principal office is located, it may be well to inquire into the general question of jurisdiction, proper, of this court, affecting corporations, as distinguished from the mere place of suability; for it is well understood that the general jurisdiction of the courts is not affected by an act of congress prescribing the place where a person may be sued. The latter is in the nature of a personal privilege or exemption in favor of a defendant, and may, or may not, be waived, at his election. 'If,' say the supreme court, 'the citizenship of the parties is sufficient, a defendant may consent to be sued anywhere he pleases. ' Ex parte Schollenberger, 96 U.S. 378; U.S. v. Telephone Co., 29 F. 35; Fales v. Railway Co., 32 F. 676.

The act, regulating the jurisdiction of circuit courts, provides, that they shall have original cognizance of civil suits in which there shall be 'a controversy between citizens of a state and foreign states, citizens, or subjects. ' Of the jurisdiction in this case, both as to subject-matter and the parties, there can be no doubt. As to subject-matter, suit is brought to recover damages in an amount exceeding $2,000. As affecting the parties, the plaintiff is a citizen of a foreign state, and the defendant is a Texas corporation. Whatever doubts may have been formerly expressed by the courts, touching the citizenship of corporations for jurisdictional purposes, (Strawbridge v. Curtiss, 3 Cranch, 267; Bank v. Deveaux, 5 Cranch, 61 et seq.,) the question has been effectually set at rest by later cases and is no longer open to controversy. The present doctrine, as settled by the supreme court, is, 'that where a corporation is created by the laws of a state, the legal presumption is that its members are citizens of the state in which alone the corporate body has a legal existence; and that a suit by or against a corporation in its corporate name must be presumed to be a suit by or against citizens of the state which created the corporate body; and that no averment or evidence to the contrary is admissible for the purposes of withdrawing the suit from the jurisdiction of a court of the United States. ' Steam-Ship Co. v. Tugman, 106 U.S. 120, 121, 1 S.Ct. 58; Railroad Co. v. Koontz, 104 U.S. 12; Railroad Co. v. Harris, 12 Wall. 81, 82; Paul v. Virginia, 8 Wall. 178; Muller v. Dows, 94 U.S. 445; Cowles v. Mercer Co., 7 Wall. 121; Railroad Co. v. Wheeler, 1 Black, 296, 297; Marshall v. Railroad Co., 16 How. 314 et seq.; Railroad Co. v. Letson, 2 How. 497 et seq.

Jurisdiction in the case existing, is the suit brought within the proper district? Reference has already been made to the act of 1875 and prior judiciary acts. Notwithstanding those acts, like the act of 1887, authorized suits against a person in the district of which he was an inhabitant, as well (in this respect unlike the act of 1887) as where he might be found it seems that prior to 1887, when corporation cases, involving the right of the corporation to be sued at a particular place, or in a state other than that of its creation, were presented to the courts for determination, they preferred to rest their decisions rather upon the ground that the corporation was 'found' within a certain district than upon the ground of inhabitancy; and no decision of the supreme court has been found by me, or called to my attention, where the point was directly made and passed upon that a corporation is an inhabitant only of the state by which it is created. A similar view is expressed by Judge BLODGETT in the case of Manufacturing Co. v. Manufacturing Co., 34 F. 820. It is a matter of some interest to note that, in the earlier cases, several of the circuit courts declined to assume jurisdiction in suits against foreign (non-resident) corporations, although they were engaged in the conduct of their ordinary business in the state where the suit was brought, and had therein agents and servants upon whom process might be served. In the discussion of the question Judge GRESHAM uses this language: 'It is too plain for argument that a corporation can not be found where it can have no legal existence,' (Hume v. Railroad Co., 8 Biss. 34;) and equally emphatic is Judge WOODRUFF when he says 'such corporation cannot be found out of the state wherein it is created, within the meaning of the statute, and be served by or through its officers. ' Myers v. Dorr, 13 Blatchf. 27. That view of the question was also taken by Mr. Justice NELSON and other judges, but it was completely overthrown by the supreme court in the case of Ex parte Schollenberger, in which Mr. Chief Justice WAITE, speaking...