202
FEDERAL REPORTER,
vot48.
accidlmt.,tllake a total of $44,241.09. Interest on this amount would be equa! ,to. depreciation in the value.of the buildirigsand machinery, if there was" depreciation, andintere$t is not allowed. Finding and judgment fo.rtbeplaintiff for the amount above shown due.
{AB'DRESSER .,. OREGON (CCrcuu
R-r. &
NAV. Oo.d ale
Gown. D. WaaMngto'n, 8. D.NoveIl1ber 12,1891.)
I.
L CORPORATIONS-WURD ,BUdLB. A corporation created by an aet of congress may be sued in the federal courts in any di_trtct where it is doing bu,sinesll.,and has an agent upon whom service can be made', not.'withstanding,tha;t itS principal Glnee: Is In aI10ther 'sllate.
When:a, domestio corporation -owning a railrdad III the.tate leasel thluame to another" the or, cop.sent of state, but,oontinues its , corporate 4jxiliteilce, and reqeives under the lease, its lessee must be considered 8lI'!i1;s agent tocal'ry on the business; and tnan action for B'tort com mUted service ofsuwmonl uJilOJl, the agents of the lessee Is service upo!l'thil'lessdr cpIl1pany. " , ' , .. " 8.A.ME....:.sBBV'Wtl oN FOitEIGNCo:SPOIUTION,'" Whe!) a that service may be made: uwn a foreign corporation doing businen therein by servinlr the summons upon its agents. any foreign corporation dot,IIg business in the state Is deemed to consent to this dition, and by a in the'metlldd Prescribed . 0. B.urB-FoLLq}VI"G,SUTB ',' ".',.",'. ' The rules of procedure 'prescribed by a staw ror obtaining service upon a foreign corporal;iol1 dillng buSiDlfsstherein govern lib« federal courts, and service ill the manner prescrlbedconfere J1Pon them, 1l:\1'/.sdlcl;ionover
&. S.u.rIf"':'SltBVIOB'ON LESIIBB'.'
The l1lli()ll Pacitlc Company, acomj)lnatlon, under thl'l name ofthe'llUnibn Pae!lic system, h'Withvarious other companies, including the .- rauro, in Was4in,gt,on. and be,ln g engagedln maldngcontraeta therein for freight and under the name Of 'the syStem, mu'stibe Mbsldered as 'doing business In that state, and a servof "n,agenl; therein, whois'authorll6dto act for all the comp.... , .Dlelil of the sYlilr-em, is a se!-",iceupoI/' a d ',
;IN;
;ol:i' AGENT.
'
,
,',','
,."
At Law·· persopal by Ehner L. Van Dresser aga,lllsttpe the Oregon 'tJtah &' NQrtliern and the Union Short cilic Railway: COmpany. On jurisdictiot). Overruled. 'Thomas ft. ,B'rentz andM. M. <;rodman, for plaiIlijtr. Jv. W. Oottont for defendants. HANFORD, J. The Oregon RnUw'ay & Navigation, Company is a corunder the laws of the state of Oregon,and poration created and is the owner ora line of rallwlly:in tbis state, which is being operated pursuant to a lease thereof by the Oregon Short Line & Utah & Northern :Railway CompanYI, Ja:tcorporatjOilcreated by an act of congress, having its principal otaqeat Che)'entle,in the state of Wyoming. The Union Pacific Railw,ay, Company isaJso,llrcorporation created by an act of congress, havillgitlHpr.incipal otliee at Roston; in the state of Massa-
VAN DRESSERV.
NAY.
co.
203
chusetts, and is coimected with the other corporations by being a party to the lease above mentioned,andalsoby reason of the fact that it and the Short Une Company, and several other railwaycompanips, are associated together, for their mutual, convenience and profit,in the carrying business,under the name of the "Umon Pacific System." These three corporationR, which, for the sake of brevity, I will designate the" Oregon Company," the "Short Line Company," and the "U. P. Company," are charged in the complaint in this action with 'in the running of a train of cars on the line of road in this state, of ·which the Oregon Company is the owner, and the Short Line Company is the lessee, a personal injury to the plaintiff, for which besnes to recover damages. Each of the defendants has appeared specially, and filed a separate plea in abatement, denying the jurisdiction of the court. By stipulation of parties a jury was waived, and the case has been tried before the court, and submitted upon the pleas, replications thereto, and evidence. . The Short Lin'e Company is the central figure in this litigation, by reason of the fact that it was at the time of the injUrY'domplained, of engaged in operating the railroad referred to, and, by its servants and agents, had the management and control of the train of cars upon which the accident happened. By its plea challenging the jurisdiction of the court this corporation assumes to be in this state a foreIgn corporation, by reason ofthe fact that it. has a principal place of business, where its seal is kept, in anotheretate. It contends that, by the provisions of the act defining the juris<;liction of the circuit courts of the United States, it is not suable -by original process in a circuit court ·01 the United States in any district other than the one in which it has its legal residence. If it were true that this corporation is legBlly· a citizen of the state of Wy_· oming, and not an inhabitant of this sta:te, I think the case would be cognizable in this court, by reason of the diverse citizenship of the par.. ties, the plaintiff being a citizen of this state. But the argument is based upon false premises. This corporation is a creature of congress, and is within the territorial limits ofthis state; transacting business under and by virtue of-national authority. I t is, in every state and territory of the Union in which it may lawfully exercise its powers, a domestic in8titution. 2 Mor. Priv. Corp. § 984. I hold that it is liable to be sued in the national courts in allY district wherein it may be found doing business, and having an agent or representative upon ,whom service of process can be made. It is not dl:lnied that in this case process has been served, in the manner provided by the laws of this state, upon an authorized agent of the defendant, having at the time the management and superintendence of its business. I must conclude, therefore,tbat it is bound to answer the complaint in this action. The U. P. Company bases its pltlaupon the Bameground, and li1s0 upon a denial of thl:' fact that the person upon'whomthe:j:>rocesswa& serveGwas ol'i!! its agent; and it denies that it is business, or thatit has any agent authorized to receiveserviee i)(prdcess for it" in this state. TaG tllstimonysho'ws, and I
FEDERAL REPOR+'ER,. vol.
48.
that this corporation is an active competitor for the through freightand puaenger traffic between all points in this stateaud Omaha, Kansas City, Chicago, and all points eastjand, to aid in securing as large a share as possible, it has formed a combinatio.n with the Short Line Company, operating lines of railway and steamers in this state, and other corporationsoperating connecting railways in other 8tates, under the name of th,e, System." It is the owner of a line of railway which is.part.of the systemj.and engaged: in operating it. Every contract made in that name, for a passage or for transportation ·of freight over its railWaY,Ulust be regarded as its contract, lind is binding to the same extent in itscorj>orate name.. The evidence shows that ,sllch contracts are beipg made in this state continually, for its benefit and profit, its knowledge and consent, and the person upon whom the summons }v8.sserved waS at the time a ticket fmight agentl,Qf .and all· the. associated com:panies composing the Union Pacific System; I hold, therefore, that the U. P. Company ,#t bla/liness in, thisdltate, and cthil.t it should not be oftihe6.fficerthrough whom it is trans.}ml;lipess a,nd'repeivinggains· . Qregon Company adtnits that the case.is one of which the. court wqlilld,hlloY:EI jurisdiction, by reason of the diverse.citizenshipof the par;the residel'lce of the plaintiff within this .district, if the sum1,>eeo served upon any officer or agent authorized to represent put it denies the agency of the person upon whom the, papers were served, and denies that it has any agent, or is doing businesSi within this state. Against these denials are the incontrovertible fa.et$, that it is an eXisting corporationj,that, under and pursuant to th,eJawso{ this commonWealth, it constructed within the put in Qperation, lilies of railway, of which it is now the leasorjftl:ld from the continued operation of which it is receiving revenue. It is in fact the owner of portions ofthe public highways of this Rtate, havinga,:franchise from the state to maintain and operate the same for as waH as for the pecuniary benefit of its stockhdki. ers. As the owner of such franchise, it is invested with part of the sovof the state. i' True, it has made a contract with the other defendantlil, whereby it has leased for a definite period its lines of way,!arldauthorized,another party to manage and operate the same. T;hestate has not, however, by any law authorized or ratified the making of this,.lease,or consented to the.trallsfer of the franchise, or reo lieved eorporationfrom responsibility as owner of its railway lines. WjthOlltSu.ch authority and consent, the lease introduced in evidence is bind,ingQ.nly ,upon the parties to it. As between themselves, it may limit their rights and fix their responsibilities; but this plaintiff, as a member 9( p,u.b1ic, is in no way. affected by it. His rights are the if. po.. such contract had been made or attempted. Lakin v. Railroad (Or.) 11 Pac. Rep. 68; Breslin v. RaU1'oad CO., (Mass.. }13 N.;E. falmm-v.Railway 16 Pac. Rep. 553; Railroq.d Co. V. Brown, 17 Rttilroad Co..v. Crane; 113 U.S. ,
'."
VAN DRESSER
v.
OREGON RY. & NAV. CO.
205
434, 5 Sup. Ct. Rep. 578jOregon Ry. k Nav. 00. v. Oregonian R. Co., 130 U. S. 1, 9 Sup. Ct. Rep. 409. By the laws of this state foreign corporations doing business here are required to have within the state an agent authorized to accept service of process, to bind the corporation in any case to which it is a party. It is also provided by statute that in suitallgainst any railroad corporation a summons may be served by delivering a copy thereof, with a copy of the complaint in the action, to any station, freight, ticket, or other agent of such corporation within the statej and that in suits against foreign corporations service may be made by delivering the papers to any agent, cashier, or secretary thereof. 'By numerous decisions, it is es· tablished as part of the common law of this country that, where a state makes conditions upon which foreign corporations may do business, and provides a method whereby the courts of the state may acquire jurisqic,:, tion over them by service of process upon designated within the state"a foreign corporation, subsequently doing business in the state, is deeniedto consent to the conditions,Jmd tq, be bound by the of process in the ,manner specified by the statute.:' Gibbs v. Insurance Co., .Y. McNu:hol v. MercantileAgency,7"l,"Mo. 457; Ehrman v. I'MUrance 00.,1 McCrary, 123, 1 Fed. Rep.411j Bank v. HuiLtingtan, 129 Mass. 444j Insurance Co. v. French, 18 How. 404; Railroad Co. v. Harris, 12 Wall. 81; .liJx parte Schollenberger, 96U; S. 369j St. 'Olrtir v. Gbx,'106 U.S.350, 1 Sup. Ct. Rep. 354'jMillting Co. v. Pennsylvania, 125 U. S. 181,8 Sup. Ct. Rep. 737. In harmony with theseprinci:ples, I hold that the Oregon Company, by constructing: and acquiring the ownership of its lines of railway in this state, and transacting its business here, consented to become subject to the laws ofthis state governing the commencement and prosecutions of suits ih the courts of the state, and to be bound by the service of process upon its agents in all cases in which it should bea party. I hold, further, that, as its franchise has not been tninsferred:With the consent of the state, whoever with its knowl· .edge and consent,' has the actual control and superintendence of its rail.. way" must be regarded as its authorized agent and representative, and that it will be bound by the service of process upon such Thomas v. Mining Co., 65 Cal. 600, 4' Pac. Rep. 641. The laws of the state providing for the service of process' of the state courts in actions at law furnish the rules for pracedure in such cal"es in thiscourt;' so that whatever would be la.wful-service of process to bring a party int6 court, if the action were ina court of competent jurisdiction under the state government. is lawful aXld sufficient for the purpose in actions coni" menced in this court. & parte Scholienberger, 96 U. S. 369j Insurarice Co. v. Woodworth, 111 U. S. 146,4' Sup. Ct. Rep. 364; In re Louispillk Underwriters, 134 U. S. 493, 10 Sup. Ct. Rep. 578;2 Mor. Priv. Corp. -§ 983; , " It is my conclusion that this defendant is lin existing corporation, d6ing business in this state by and through laws of the state provide' that it may be sued in the courts of the·: arid"prescribe Q,. mode0f Pt'OOeSB'i bywbiohit tnaybe': bt'cllight I
RDERAL
vol. 4&·
said courts;.andtbat'in ,tbis case service bas been made in tbe mode so prescribed. These are:.the essentials of jurisdiction, and all that is necessary to hring the case and the defendant fully within the jurisdiction of court. U. S. v. Telephone 00.,29 Fed. 35. Thepl(3aS are all bad, and will be overruled.
Omo & M. RY. CO,'V.PRESS PuB. Co. (CW<mUCou1't, 8. D. Ne'IlJ :york. November 17,189L)
L "
&.
'I["Bnguage which chargel a railroad company with such incapacity or negleot In tbllCC)Dquct of itl! bUl!inll811 that belief in, ita ,truth would prevent persons from em· it as a is actioD,able ,without proof of special damage. .Wberethe.complaiDt in an action by a railroad company for libel alleges that depubll,shed the (aliJestatement that more thaD !laIr the ties in plaiPtifr'stoad were rotlleD, and thatitwas dangerous to TUn traiilafast.thereoD, a ,demurrer thereto ianin( to state a cause'of action is frivolous. ' ·
IS AOT;ONABLB-RAILROAD COMPANIIIS-NIIGLIGIINCB.
as
At Law. On motion for judgment on,demurrer. ActioQ ,bYi tbeOhio'&MississippiRailway Company against the Press Publishing Company for libel. Defendant demurred to the complaint, on tbJ:J:-ground that "it appears on the face of the complaint that the said: 0000 pIaillt does not state facts sufficient to constitute a cause of acI fPlaintiff moved for judl/;menton the demurrer as frivolous. B1Ilm/\Stillman de JI,ubbard; for plaintiff. Inwrep, Stoli6 de Auerbach; for defendant. !. '.,
L,\.<x)j'fBl$,Qircuit Judge. The demurrant has wholly. mi.'ltaken the cause of"action set forth in the complajpt. Defendant's publication is not decl'il'¢.upon asa"Jibel on. a thing. 11 A corporation, though an artificial may mainta,in an action for Ii bel i certainly for conceruhlg it in tbe traqe or occupatiqn;which it carries on. In8twonce a,. v.· PfJf'1jrK, 23 N.· J· L!1 tv, 402; Mutuq.l Re8erve Fund ltijeA88'n v. Spectator QO,N. y. Super,.Ct, 460; OmnW'lMl:Co. v. Hawkin8,4 Hurl. & N. 87, 146; Qank v. 'l'hompson, 18 Abb. Pro 418. It iselementar,r law that .every from which peouniarybenefit may be derived creates special suaceptibility to injury by language charging unfitpessorimproper conduct of such oPCupation that.snch language is actionable, O,fspeqisl , .rhe avers that ,plaIntiff is ,*' J:silway c,orpotation, duly organized and existing under the laws of the states of Ohio, Indiana, and Illinoil1, cammon :qi.rrier of go()dg' :Rnd passengers, and that it ;a4d ,liIieSQf rQil:road. The occupation of the therefore, is the proper,safft. a.nd business-like maintenance and operE+tionof its ;raiIroad, tba't: i$,! ita