96 Wash. 458 | Wash. | 1917
Lead Opinion
— The plaintiff, Macario, commenced this action in the superior court for King county, seeking recovery of damages for personal injuries against the defendants mining company and O’Neill, which personal injuries he claims to have suffered as the result of the negligence of the defendants while he was employed by the mining company under the direction of O’Neill, its foreman, in its mining operations in Alaska.
The mining company is a corporation organized and existing under the laws of the state of New York, and is engaged in mining operations in Alaska, being duly authorized to do business therein under the laws of that territory. It has never complied with our statute relating to the doing of business- in this state by foreign corporations. It claims that it never did business in this state of the nature that called for any such compliance on its part, and also that it never did business in this state of such nature that it can lawfully be subjected to the process of our courts. The plaintiff sought to have the superior court for King county acquire jurisdiction over the mining company in this action by service of summons upon Robert Munro as its agent in Seattle. The mining company appeared specially and moved to quash the service of the summons- upon the ground that it was not doing business in this state of such nature as to enable our courts to acquire jurisdiction over it in this case. Trial before the court upon the issue of whether it was so doing business in this state resulted in findings and an order quashing the service of summons upon Munro as the company’s
Respondent mining company, while organized under the laws of the state of New York and having its head office in that state, is principally engaged in somewhat extensive mining operations in Alaska. Since the year 1912, Robert Munro, a resident of Seattle, has been its employee upon a regular salary. His title as such employee is “Supply and Forwarding Agent.” The mining company maintains an office in Seattle, which has been, at all times since 1912, under Munro’s charge with two other salaried employees under him. The duty of Munro has- been to forward from Seattle supplies to the mining company at its place of operation in Alaska. These supplies would be purchased at different points in the states, shipped by rail to Seattle, some of them also being purchased in Seattle, when Munro, as representative of the mining company there, would attend to their transfer and shipment by boat to the mining company in Alaska. Munro apparently had considerable to do with the purchase of these supplies, especially the portion thereof purchased in Seattle. He had authority to make contracts of purchase, at least to some extent, though apparently, when purchases in any considerable sum were made he was required to submit the same to officers of the company, either in New York or Alaska, for approval before the final consummation of such purchases. There were large quantities
It was conceded that Munro was the agent of the mining company for the purpose of doing all of the things above noticed, and that if the doing of these things at Seattle constituted the doing of business in this state by the mining company to the extent that it thereby became subject to the process of the superior court for King county in this action^ then the service of the summons upon Munro was an effective service upon the mining company, in so far as the question of his agency alone is concerned. So the question here is, Was the mining company doing business in this state to the extent that it became subject to the process of our courts in this action?
Conceding, for argument’s sake, speaking generally, that this cause of action is transitory, being one which appellant may sue the mining company to recover upon in any court
■ The opinion of the supreme court of the United States in Green v. Chicago, B. & Q. R. Co., 205 U. S. 530, we think, is decisive of this question. That was an action in the circuit court of the United States for the eastern district of Pennsylvania, to recover damages for personal injuries occurring in Colorado, which were claimed to have resulted from the
“The eastern point of the defendant’s line of railroad was at Chicago, whence its tracks extended westward. The business for which it was incorporated was the carriage of freight and passengers, and the construction, maintenance, and operation of a railroad for that purpose. As incidental and collateral to that business it was proper, and, according to the business methods generally pursued, probably essential, that freight and passenger traffic should be solicited in other parts of the country than those through which the defendant’s tracks ran. For the purpose of conducting this incidental business the defendant employed Mr. Heller, hired an office for him in Philadelphia, designated him as district freight and passenger agent, and in many ways advertised to the public these facts. The business of the agent was to solicit and procure passengers and freight to be transported over the defendant’s line. For conducting this business several clerks and various travelling passenger and freight agents were employed, who reported to the agent and acted under his direction. He sold no tickets and received no payments for transportation of freight. When a prospective passenger desired a ticket, and applied to the agent for one, the agent took the applicant’s money and procured from one of the railroads running west from Philadelphia a ticket for Chicago and a prepaid order, which gave to the applicant, upon his arrival at Chicago, the right to receive from the*464 Chicago, Burlington & Quincy Railroad a ticket over that road. . . .
“The question here is whether service upon the agent was sufficient; and one element of its sufficiency is whether the facts show that the defendant corporation was doing business within the district. It is obvious that the defendant was doing there a considerable business of a certain kind, although there was no carriage of freight or passengers. . . .
“The business shown in this case was in substance nothing more than that of solicitation. Without undertaking to formulate any general rule defining what transactions will constitute ‘doing business’ in the sense that liability to service is incurred, we think that this is not enough to bring the defendant within the district so that process can be served upon it. This view accords with several decisions in the lower Federal courts. Maxwell v. Atchison &c. Railroad, 34 Fed. Rep. 286; Fairbanks & Co. v. Cincinnati &c. Railroad, 54 Fed. Rep. 420; Union Associated Press v. Times Star Co., 84 Fed. Rep. 419; Earle v. Chesapeake &c. Railroad, 127 Fed. Rep. 235.”
We think no decision rendered by this court is so directly in point here as to be of controlling force, though our decision in the following cases are in harmony with, and may be said to lend some support to, the view that the mining company did not do business in this state to the extent that it became subject to being sued in our courts upon this alleged personal injury cause of action arising in Alaska: Rich v. Chicago, B. & Q. R. Co., 34 Wash. 14, 74 Pac. 1008; Arrow Lumber & Shingle Co. v. Union Pac. R. Co., 53 Wash. 629, 102 Pac. 650; Smith & Co. v. Dickinson, 81 Wash. 465, 142 Pac. 1133. The decision of our Federal district court in Johanson v. Alaska Treadwell Gold Mining Co., 225 Fed. 270, also lends support to this conclusion.
Our decision in Lee v. Fidelity Storage & Transfer Co., 51 Wash. 208, 98 Pac. 658, and Spokane Merchants Ass’n v. Clere Clothing Co., 84 Wash. 616, 147 Pac. 414, upon a casual reading may seem to lend some support to appellant’s contention; but a critical examination of those cases will show
The authorities principally relied upon by counsel for appellant are the decisions of the court of appeals of Kentucky in International Harvester Co. of America v. Commonwealth, 147 Ky. 655, 145 S. W. 393, and the supreme court of the United States in the same case upon writ of error, International Harvester Co. of America v. Commonwealth of Kentucky, 234 U. S. 579, where the decision of the Kentucky court of appeals was affirmed, holding that the International Harvester Company was doing business in the state of Kentucky to the extent that it was subject to the process of the courts of Kentucky and suable therein upon the cause of action involved. That was a prosecution upon an indictment against the harvester company charging it with being a member of a pool or combination with other companies for -the purpose of regulating and controlling the price of ma
“It is argued that this conclusion is in direct conflict with the case of Green v. Chicago, Burlington & Quincy Ry., 205 U. S. 530. We have no desire to depart from that decision, which, however, was an extreme case.”
It seems to us that, as the railway company’s business in the Green case was, by the court, differentiated from the harvester company’s business in Kentucky, so may the business of respondent mining company in Seattle be differentiated from the harvester company’s business in Kentucky. In other words, as the railroad company’s business in Pennsylvania was regarded merely as incidental to its business in Colorado, so may the mining company’s business in Seattle be regarded as merely incidental to its principal business, which is in Alaska. The Harvester Company case can also be differentiated from the Green and this case in that it was an action seeking to recover a penalty upon a cause of action arising in Kentucky.
The following decisions of the courts, we think, show that the liability of a foreign corporation to be sued in a state other than that of its creation because of its doing business therein, upon any and all transitory causes of action arising
Some contention is made in appellant’s behalf that, because the mining company had some property in Seattle, consisting principally of office furniture of the value bf approximately $500, that fact should be considered in aid of the jurisdiction of the superior court for King county and its power to subject the mining company to its process. The answer to such contention is that this is not a proceeding in rem, but an action to recover a personal judgment against the mining company. We are not here concerned with the question of jurisdiction to render a judgment in rem, but a judgment in personam. Plainly, we think, the fact of the mining company’s having property in Seattle is of no controlling force whatever in this case.
Some contention is made in appellant’s behalf that the mining company, in effect, entered a general appearance in this case. This contention seems to be rested upon the fact that, after the commencement of the action in the superior court for King county, the mining company, being a foreign corporation, petitioned for the removal of the case to the Federal court, and before such removal was consummated, amended its petition in that behalf showing somewhat more certainly than in its original petition that it was a corporation organized under the laws of the state of New York.
“Such a plea to the jurisdiction of the court is amendable and our liberal statute of amendments applies fully thereto. Midland Pacific Ry. Co. v. McDermid, 91 Ill. 170; Drake v. Drake, supra. Hence a motion for leave to amend such a plea cannot be said to be a general appearance giving the court full jurisdiction. Such a rule would defeat the right to amend, for leave to amend can only be obtained by a motion to the court. It would be a contradiction in principle to hold that one may amend a plea to the jurisdiction of the court, but that if he asks leave to do so he thereby defeats the plea and gives the court full jurisdiction.”
In Wabash Western Railway v. Brow, 164 U. S. 271, it was held that a petition in general terms for removal of a cause to a Federal court, without specifying or restricting the purpose of the defendant’s appearance in the state court, is not, like a general appearance, a waiver of any objection to the jurisdiction of the court over the person of the defendant, and that the filing of a petition for removal is not a general appearance, but a special appearance only. If the filing of a petition for removal is not a general appearance, then manifestly an amendment of such a petition would not be a general appearance. It seems plain to us that the superior court for King county did not acquire jurisdiction over the mining company by virtue of any general appear
Further contention is made in appellant’s behalf that the trial court erred in setting aside the default entered against the mining company without formal motion in that behalf by the mining company. Since we have arrived at the conclusion that the service of the summons was wholly without effect as against the mining company, and because it was not subject to being sued in this action in this state, it follows that the default entered against it was void and that the trial court did not err in setting it aside upon its own motion, as it is insisted by counsel for appellant the court did. It would seem that such order should follow the setting aside of the service as a matter of course.
We are of the opinion that the order quashing the service of summons upon Munro as agent for the mining company must be affirmed. It is so ordered.
It is contended in appellant’s behalf that the trial court erred in dismissing the case for want of sufficient evidence to support any award of damages as against the defendant O’Neill. This disposition of the case upon the merits in favor of O’Neill seems to us so plainly correct that it calls for hut little discussion. Respondent O’Neill was the salaried superintendent for the mining company in the construction of the tunnel in which appellant was injured by an explosion of a dynamite charge. The foreman, Miller, working under O’Neill, was in charge of the particular work m which appellant was one of the employees at work at the time he was injured. The injury occurred by the explosion of a dynamite charge during the work of a night shift. O’Neill was, at that time, in bed asleep, and evidently had been for several hours. He was not present, and knew nothing of what
Ellis, C. J., Mount, and Fullebton, JJ., concur.
Dissenting Opinion
(dissenting) — I am unable to concur with the majority in the affirmance of the quashing of service of process upon the respondent mining company. It seems clear to me that the facts show that the agent, Munro, performed much of the corporation’s necessary general business in this state. As to that part of the decision, I dissent.