262 F. 94 | 5th Cir. | 1919
This was a suit for damage for personal injuries. In the District Court the statute of limitations of two years was held to apply to it, and there was a judgment for the defendant, from which this writ of error is taken.
The article has been held not to apply to one who was absent from the state when the cause of action accrued and at all times thereafter. Tourtelot v. Booker (Tex. Civ. App.) 160 S. W. 293; Wilson v. Daggett, 88 Tex. 375, 31 S. W. 618, 53 Am. St. Rep. 766; Veeder v. Gilmer, 103 Tex. 458, 129 S. W. 595. If the defendant was at all times a nonresident of Texas, the statute would have run in its favor. The defendant was a Pennsylvania corporation. It solicited orders through a local salesman in Texas, shipped the machines, in response to the orders, after they had been approved at the home office in Pennsylvania, and collected for the shipments in Texas, through its local representatives there. The local salesmen had no right to accept orders or compromise claims. This was the regular course of defendant’s business in Texas and was not confined to isolated cases. In the case of International Harvester Co. v. Kentucky, 234 U. S. 579-585, 34 Sup. Ct. 944, 946 (58 L. Ed. 1479), the Supreme Court said:
“In order to hold it responsible under the process of the state court, it must appear that it was carrying on business within the state at the time of the*96 attempted service. As we have said, we think it was. Here was a' continuous course of business in the solicitation of orders, which were sent to another state, and in response to which the machines of the Harvester Company were delivered within the state of Kentucky. . This was a course of business, not a single transaction. The agents not only solicited such orders in Kentucky, but might there receive payment in money, checks, or drafts. They might take notes of customers, which notes were made payable, and doubtless were collected, at any bank in Kentucky. This course of conduct of authorized agents within the state in our judgment constituted a doing of business there in such wise that the Harvester Company might be fairly said to have been there, doing business, and amenable to the process of the courts of the state.”
We think the part quoted covers this case, and shows that the defendant was doing business in Texas when the cause of action accrued.
If so, then it could be served by citation on “any local agent, within this state, of such corporation.” • Rev. Stat. of Tex. 1911, art. 1861. The defendant, at the time the cause of action accrued, had two agents, one located at Dallas and one at Laredo, each with a defined territory under his control. A local agent, under the Texas statute, is held to be “an agent at a given place or within a district.” W. E. Co. v. Troell, 30 Tex. Civ. App. 200, 70 S. W. 324; W. C. P. & Co. v. Anderson, 97 Tex. 432, 79 S. W. 516. The agents at Laredo and Dallas were local agents, within the meaning of the Texas statute, and capable of being served as such.
The plaintiff in error contends, however, that the domestic corporation was not capable of being served, because all its officers lived beyond tire state of Texas. The record shows that the Texas corporation sold 20 gas engines for the parent company prior to the time of the institution of the suit. The Texas corporation could have acted, in doing so only through agents, and, if its officers all lived out of Texas, it must have had agents, not officers, who lived in Texas, and through whom such sales were made for it. A corporation can act only through agents. The record also shows that the Texas corporation kept a stock of parts, in Texas, to be there furnished to the customers of the parent company. Resident agents were essential also to conduct that business. The Texas corporation also had two
We think the record shows that the defendant was never absent from Texas, for the purpose of citation upon it, during the two years succeeding the accrual of the cause of action on which the suit is brought, and that the bar of the statute of limitations of two years was complete, when the present suit was brought, October 8, 1914. The judgment of the District Court is affirmed.