M. & A. Motor Freight Lines, Inc. v. Villere , 190 Miss. 848 ( 1941 )

Appellant was engaged exclusively in interstate commerce in this state. It carried freight alone; it is a Georgia corporation. Its main route is from Atlanta, Georgia, through that state, Alabama, Mississippi, and to New Orleans, in Louisiana. It has an office at Gulfport, in Harrison County in this State, in charge of an agent, devoted alone to the handling of freight passing in interstate commerce. It does no intrastate business whatever in this state. In its operation in this state it uses the coast highway, known as No. 90. The only property it owns in this state is that connected with its agency at Gulfport. The injury sued for occurred in Louisiana. The action therefor was brought in Hancock County, in this state.

On the trial of the plea in abatement of the jurisdiction, it was shown that most of the material witnesses resided in other states than Mississippi. One ground of the plea was that the exercise of jurisdiction in this state would unduly burden interstate commerce in violation of the Commerce Clause of the Federal Constitution. The trial of the cause developed that out of about twenty witnesses all of them except three resided in other states, most of them in Louisiana, but some in Georgia and Alabama. My opinion is that the plea ought to have been sustained, and I reach that conclusion upon the following considerations:

In applying the decisions of the federal supreme court bearing upon this question, it should be kept in mind that courts take judicial notice of the fact that all the railroads in the United States are engaged in both interstate and intrastate commerce; and, therefore, have on hand the necessary facilities for making defense to actions growing out of both classes of commerce, intrastate and interstate.

That jurisdiction ought not to have been sustained is supported by the principles laid down in the following authorities: Denver Rio Grande Railroad Co. v. Ben Terte, Judge, etc.,284 U.S. 284, 52 S.Ct. 152, 76 L.Ed. 295; Michican Central Railroad Co. v. Mix, 277 U.S. 581, 48 S.Ct. 562, 72 L.Ed. 998; Maxfield v. Canadian Pac. Railroad Co., 8 Cir., 70 F.2d 982; Id.,293 U.S. 610, 55 S.Ct. 140, 79 L.Ed. 700; Davis, Director General of the Railroads v. Farmers' Co-operative Eq. Co., 262 U.S. 312, 43 S.Ct. 556, 67 L.Ed. 996; Best Co. v. Maxwell, Commissioner, etc., 311 U.S. 454, 61 S.Ct. 334, 85 L.Ed. ___; American Law Institute Restatement Conflict of Laws, sec. 92, 141-2; sec. 89.2 of Vol. 1 of Beale's Conflict of Laws, pp. 377-8. Paragraph (b) of the authority next before the last is in this language:

"b. When foreign corporation engaged in interstate commerce. Although a State cannot under the Constitution of the United States forbid a foreign corporation to engage in interstate commerce within the State, a foreign corporation by doing business within the State, although the business is confined to interstate commerce, subjects itself to the jurisdiction of the State as to causes of action arising out of the business done in the State.

"It is a violation of the Constitution of the United States to require a foreign corporation as a condition of engaging only in interstate commerce within the State to consent to the jurisdiction of the State as to causes of action not arising out of the business done within the State, or to subject the corporation without its consent to such jurisdiction if to do so would be so inconvenient to the defendant as to constitute a burden upon interstate commerce." The last citation is in this language:

"Corporations Engaged in Interstate Commerce. — A state statute providing for service of process upon an agent of a foreign corporation doing business in the state, so far as it applies to a corporation engaged in interstate commerce and to a cause of action not connected with the business carried on within the state, is unconstitutional as involving an interference with interstate commerce."

In the Denver Rio Grande Railroad case, the Supreme Court held that a suit against an interstate railroad company in a state in which it had only offices and agents for the purpose of soliciting traffic, on a cause of action arising outside of the state, is nonetheless an undue burden on interstate commerce because of the presence of probable witnesses within the state; that courts may be deprived of jurisdiction which they would otherwise possess by the fact that the carrying on of the litigation imposes a burden on an agency of interstate commerce. In this opinion the Court used this language [284 U.S. 284, 52 S.Ct. 153, 76 L.Ed. 295]: "Further, as a practical matter, courts could not undertake to ascertain in advance of trial the number and importance of probable witnesses within and without the state and retain or refuse jurisdiction according to the relative inconvenience of the parties."

In the Davis case, the Court used this language [262 U.S. 312, 43 S.Ct. 557, 67 L.Ed. 996]: "That the claims against interstate carriers for personal injuries and for loss and damage of freight are numerous; that the amounts demanded are large; that in many cases carriers deem it imperative, or advisable, to leave the determination of their liability to the courts; that litigation in states and jurisdictions remote from that in which the cause of action arose entails absence of employees from their customary occupations; and that this impairs efficiency in operation, and causes, directly and indirectly, heavy expense to the carriers — these are matters of common knowledge."

In my opinion these authorities mean that in a suit against an exclusive interstate carrier in a foreign state from where the cause of action arose, interstate commerce would be unduly burdened without any proof to that effect, in other words, that the courts will take judicial notice that interstate commerce is burdened. For illustration: An exclusive interstate public carrier operating in this state has an office in the State of Washington for the solicitation of that character of business alone which, under the laws of that state, subject it to the ordinary process of its courts. A cause of action arises in this state. The party entitled to bring it is a resident of the State of Washington and brings it there. It would be unnecessary to make proof that the inconvenience and expense of defending the action there would burden interstate commerce. Such burden would be presumed. And the distance between two states would not be controlling. Even though the state in which the action is brought adjoins the state in which it accrues, the same rule would apply. The courts will not stop to ascertain the distance between the two states in order to determine whether interestate commerce is burdened. The burden is presumed. However, if proof were required in this case, it was made. It was shown that all the witnesses except three (appellant being one) were nonresidents of this state. The nonresident witnesses could have refused to attend the trial, thereby forcing the carrier to take their depositions — one result the court and jury would be deprived of seeing and hearing them testify and of observing their manner of doing so; in other words, they would be confined to the written word instead of the spoken word, which often has a very different meaning.

To illustrate how jealously the Supreme Court of the United States has guarded interstate commerce from unreasonable burdens by the states, it was decided in Houston Ry. Co. et al. v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341, that Congress had the power to control intrastate rates to the extent of preventing them from burdening interstate commerce.

I think that a consideration of the authorities relied on by appellee will show that they are not in point.