No. 2010 | D. Mass. | Nov 23, 1923
The defendant has filed a plea in abatement and a motion to dismiss. The plea tenders an issue of fact whether the defendant was so present and doing business within the state of Massachusetts as .to be subject to suit here. It was heard in open court on oral and documentary evidence. The facts are as follows:
The defendant is a Virginia corporation. It does not own and it never has owned nor operated any railroad within this state. It maintains an office in Boston in the Old South Building, of which one Cooke was in charge. On the door or window of the office is
The claim in question, as appears by the declaration and writ, arises out of a shipment of cotton from Hartsville, S. C., to Revere, Mass., and is for damage to the merchandise while in transit. The suit was brought by a writ in the state court, and was removed into this court by the defendant.
The laws of Massachusetts provide that, in an action against a foreign corporation, which, with or without a usual place of business in the commonwealth, is engaged in or solicits business here, service of process may be made upon the agent in charge of the business. St. 1913, c. 257, now G. L. c. 223, § 38. It is not disputed that the defendant was soliciting business in Massachusetts.
Aside from the facts that the plaintiff is a citizen of Massachusetts, with its principal place of business here, and that the freight in question was destined to a point in this state, the present case would fall within Davis v. Farmers’ Co-operative Co., 262 U.S. 312" court="SCOTUS" date_filed="1923-05-21" href="https://app.midpage.ai/document/davis-v-farmers-co-operative-equity-co-100221?utm_source=webapp" opinion_id="100221">262 U. S. 312, 43 Sup. Ct. 556, 67 L. Ed. 996" court="SCOTUS" date_filed="1923-05-21" href="https://app.midpage.ai/document/davis-v-farmers-co-operative-equity-co-100221?utm_source=webapp" opinion_id="100221">67 L. Ed. 996. In'that case a Minnesota statute, which attempted to assert the general and unlimited jurisdiction of that state over all interstate carriers who solicited business within it, was held unconstitutional as an unreasonable interference with interstate commerce. But there the plaintiff was a resident of Kansas; neither the parties nor the business were in any way connected with Minnesota, or with the defendant’s soliciting agency located there. The question whether a different result would have been reached, if the plaintiff had been a resident of the state, was explicitly left open.
How far a foreign corporation renders itself subject to suit in a state by transacting there business of a greater or less amount is a subject which has been considered in many cases. The decisions, as has been said, shade into one another, and are perhaps not always consistent. It is unnecessary, in view of Davis v. Farmers’ Co-operative Co., supra, to go into an elaborate discussion of them. Green v. C., B. & Q. R. R. Co., 205 U.S. 530" court="SCOTUS" date_filed="1907-04-29" href="https://app.midpage.ai/document/green-v-chicago-burlington--quincy-railway-co-96664?utm_source=webapp" opinion_id="96664">205 U. S. 530, 27 Sup. Ct. 595, 51 L. Ed. 916" court="SCOTUS" date_filed="1907-04-29" href="https://app.midpage.ai/document/green-v-chicago-burlington--quincy-railway-co-96664?utm_source=webapp" opinion_id="96664">51 L. Ed. 916, may be regarded as typical of one side, and St. Louis Southwestern Ry. Co. v. Alexander, 227 U.S. 218" court="SCOTUS" date_filed="1913-02-03" href="https://app.midpage.ai/document/st-louis-southwestern-railway-co-of-texas-v-alexander-97773?utm_source=webapp" opinion_id="97773">227 U. S. 218, 33 Sup. Ct. 245, 57 L. Ed. 486" court="SCOTUS" date_filed="1913-02-03" href="https://app.midpage.ai/document/st-louis-southwestern-railway-co-of-texas-v-alexander-97773?utm_source=webapp" opinion_id="97773">57 L. Ed. 486, Ann. Cas. 1915B, 77, of the other. As to nonresidents of the state, and transactions originating and to be completed elsewhere, it is settled that a mere soliciting agency does not at common law bring
The question here is whether the facts that the shipment was destined to this state and to a»person resident here, by whom the present action is brought, differentiate it from the Davis Case and require a different conclusion. Aside from the act of 1913, what the defendant did would not, I think, bring it within the state, so as to be subject to suit here. The defendant is within the terms of that 'act, and the decisive point is whether the act is valid as applied to this case. Unquestionably a state may regulate and condition in a reasonable way the right of interstate carriers to do business within its borders; and to some extent at least a state must have the power to say what shall constitute corporate presence 'within its borders and subject a corporation to suit there in cases affecting its own citizens. If a corporation chooses to come in, it accepts the burden of the statute. It might be doubted whether an interstate carrier became suable at all in a state by merely sending a traveling agent there to solicit business. But this Is not that case. Here .the defendant maintained a regular office in its own name, which it held out to the public as its agency, and from which it did, apparently, a business of substantial proportions. It does not seem to me unreasonable or unduly burdensome on interstate commerce for the state to say that an interstate carrier which does that shall thereby become amenable to suits in its courts by its citizens concerning shipments to them at places within its borders. It follows that the plea in abatement is not sustained.
The defendant has also moved to dismiss upon the ground that the return of service is defectively drawn. It is a matter of no substantial importance, because the return, if defective, can easily be amended. It seems to me sufficient; but, if the plaintiff desires to amend to obviate the objections which have been made, a motion to that effect may be presented. ,
Plea in abatement adjudged bad.
Motion to dismiss denied.