Zuber v. Pennsylvania R. Co.
| Decision Date | 15 February 1949 |
| Docket Number | 420.,3293,Civ. A. No. 546,3291 |
| Citation | 82 F. Supp. 670 |
| Parties | ZUBER v. PENNSYLVANIA R. CO. SLATON v. CHICAGO, R. I. & P. RY. CO. HALL v. CHICAGO, R. I. & P. RY. CO. HARPER v. FREEMAN SHOE CORPORATION. |
| Court | U.S. District Court — Northern District of Georgia |
James Maddox (of Maddox & Maddox) and Slaton Clemmons, all of Rome, Ga., for plaintiff.
Dean Owens (of Matthews, Owen & Maddox), of Rome, Ga., for defendant.
Clarence D. Stewart, of Atlanta, Ga., for complainant.
John L. Tye, Jr. (of Tye, Thompson, Tye & Edmondson), of Atlanta, Ga., for defendant.
Jake B. Joel, of Athens, Ga., for complainant.
John L. Tye, Jr. (of Tye, Thompson, Tye & Edmondson), of Atlanta, Ga., for defendant.
H. A. Stephens, Jr., and R. Wilson Smith, Jr. (of Smith & Stephens), both of Gainsville, Ga., for complainant.
A. C. Wheeler (of Wheeler, Robinson & Thurmond), of Gainesville, Ga., for defendant.
There are pending before the Court four cases in three of the several divisions of this Court, which, while not involving identical questions, are yet substantially similar. Each suit has to do with proceedings against non-residents of this State, and the validity of service upon and proceedings against the respective defendants by which they are sought to be subjected to the jurisdiction of this Court.
The cases are therefore considered together.
In none of the cases is there any dispute as to the facts, and no detailed statement of facts is necessary further than to explain the rulings here made.
In the two cases against the Chicago, Rock Island and Pacific Railway Company, which will be hereinafter referred to as the Rock Island, the complainants are each residents of the State of Georgia, and in separate suits seek to recover for themselves and their minor children, for the death of their husbands which resulted from the same occurrence in the State of Kansas while a train upon which the husbands, soldiers in the United States Army, were as alleged, being transported to Fort McPherson, Georgia.
The train upon which they were riding was being at that time operated by the defendant, Rock Island Lines. The Rock Island Lines neither owns nor operates any lines of railroad in the State of Georgia, nor has it ever been licensed or granted a franchise by the State of Georgia to do business therein; it has what is denominated a Georgia agent, but who, under the evidence, has no duties or authority, nor does he assume any, other than the solicitation of freight and passenger traffic to be routed over the lines of the defendant outside of the State of Georgia on shipments and carriage moving from and to Georgia. For the purpose of this solicitation it maintains an office in Atlanta employing some seven people and has therein office furniture which is returned for taxation. In the time table published by the defendant the general soliciting agent is listed as a general agent. There is no proof in the record that the soliciting agent in Georgia had any connection with the inauguration of the passenger movement of the United States soldiers which was under the control and direction of the United States Army, or that the defendant had any knowledge of the ultimate destination of this movement. It is therefore a fair inference that there was no definite destination such as would be the case of a private transportation contract, as a change in destination was subject to the discretion and needs of the military authorities. Service of process was had upon the soliciting agent. The defendant moved to dismiss the action, or in lieu thereof, to quash the return of service of summons, upon the ground that there was no proper service, first, because the railroad was not doing business in Georgia of the kind which made it subject to suit, and second, because the service upon the soliciting traffic agent was not sufficient in view of the nature of his duties and authority, and thirdly, (1) the Court lacks jurisdiction for the reason that the exercise of such jurisdiction would unreasonably obstruct and burden interstate commerce; (2) that the exercise of jurisdiction would deprive the defendant of property without due process and deny the defendant the equal protection of the law; (3) "that the venue herein is improper" and this Court is not a proper forum for the trial of the action under the rule of forum non conveniens. In support of the contention of undue burden to interstate commerce, allegations and proof are presented to the effect that the place of the homicide is more than twelve hundred and fifty miles from Atlanta; that the proper defense of the case would require the attendance of some twenty-five witnesses, twelve of whom are employees of the defendant; that the expenses of witnesses would approximate $6,000.00, and the absence of the employee witnesses who are directly engaged in interstate commerce in the operation of the interstate trains operated by the defendant, would create interruptions and delay in the defendant's handling of interstate business, and thus constitute a substantial burden upon interstate commerce; that these expenses and burdens would largely be avoided if the trials were held in the United States District Court at Salina, Kansas, within the district where the homicides occurred.
In the case of Lenora Zuber against the Pennsylvania Railroad it is alleged that she is a resident of Floyd County, Georgia. She began her action against the defendant by service of a summons of garnishment upon the Southern Railway and the Central of Georgia Railway, both of which operate lines in Floyd County, Georgia, and by attachment of a freight car belonging to the Pennsylvania Railroad and located at the time in Floyd County, Georgia. Thereafter, a declaration in attachment was filed in the Superior Court of Floyd County. The garnishment, attachment and filing of the declaration were in accordance with the provisions of the Georgia law in proceedings against non-residents. In her declaration she claims damages for injuries sustained in a collision in Columbus, Ohio, between one of the defendant's engines operated over its railroad lines there and a car in which she was riding. The defendant is alleged to be a non-resident corporation.
The defendant has moved to dismiss the proceedings upon the grounds that it is not carrying on any business in the State of Georgia and that the proceeding, based upon a cause of action arising in the State of Ohio, can not be maintained in Georgia for the reason that it would be an unreasonable burden upon interstate commerce, because the defendant is an interstate railroad which has no lines of railroad in Georgia and transacts no business in Georgia, the only activity in the State of Georgia being the solicitation of carriage of freight and passengers over its lines entirely outside the State of Georgia, and that the freight railroad car is an instrumentality of interstate commerce, and the deprivation of the defendant of the free and uninterrupted use of the car imposes a direct and unreasonable burden upon interstate commerce. Further, that in order to make proper defense to the action, defendant would be put to great inconvenience and heavy expense and would suffer serious interference with the proper operation of its railroad by having to take its employees from their customary duties, and further, that the defendant does not do business in Georgia, nor is it licensed to do business, nor has it consented to be sued therein. For second ground of the motion, it is contended that if the suit is allowed to be maintained upon the cause of action arising outside of the State of Georgia, the defendant would be deprived of the rights of due process provided by the Fourteenth Amendment. Thirdly, it is contended, for reasons substantially similar to those set forth in the motion of the Rock Island, above mentioned, that the absence of its employee witnesses resulting from their forced attendance upon the trial would create interruptions, confusion and delay of the defendant's handling of its interstate business, and thus constitute a substantial and serious burden upon interstate commerce. It is further asserted that the statutes of the State of Georgia attached as exhibits, as construed by the highest courts of this State, authorize the commencement of an action against a non-resident by the levy of an attachment and the issuance of summons of garnishment, but that these laws are not applicable to the present cause of action under the circumstances appearing in the record. However, it is contended that if they should be held to be applicable, the statutes are unconstitutional because violative of the interstate commerce and due process clauses of the Constitution of the United States. Const. art. 1, § 8, cl. 3; Amend. 14. Answering the motion, the plaintiff denies the legal conclusions of the defendant. The only facts controverted with reference to the allegations of the defendant as to doing business in the State is the assertion that the defendant transacts business by the movement of freight cars belonging to it constantly over the lines of other railroads in the State of Georgia, and further takes issue as to the extent of inconvenience which would result to the defendant by the absence of its employees, by the claim that only the engineer, and possibly, the fireman, who were operating the switch engine, would be material witnesses. The plaintiff alleges that she is a bona fide resident of the State of Georgia and has been all of her life and that she was visiting in the State of Ohio at the time she sustained her injuries, and that her medical treatment, with the exception of first aid, was all in Floyd County where her medical witnesses reside. This case was submitted upon the pleadings and record.
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