El Paso & S. W. Co. v. Chisholm

^* Application for writ of error pending in Supreme Court. It is contended that, while the statutes of the state of Texas make the general manager the agent upon whom service of process may be had, yet, in the absence of an appointment by defendant, of such general manager as one upon whom service of process might be had, such statute is not valid or effective as to causes of action arising in another state against a foreign corporation; that any judgment which might be rendered against the defendant in cause No. 12540 upon the cause of action therein asserted, which arose outside of the state and with service only upon a statutory agent, made such by the laws of the state of Texas, would not be due process of law under the Fourteenth Amendment to the federal Constitution. "No judgment of a court is due process of law if rendered without jurisdiction in the court, or without notice to the party." Scott v. McNeal, 154 U.S. 34, 14 S. Ct. 1108, 38 L. Ed. 896; Old Wayne Mutual Life Association v. McDonough, 204 U.S. 8, 27 S. Ct. 236, 51 L. Ed. 345.

The question manifestly resolves itself into a consideration of whether the district court of El Paso county, in the state of Texas, has jurisdiction over the subject-matter and person of defendant in the suit filed by Chisholm.

In Railway Co. v. Sowers, 213 U.S. 55, 29 S. Ct. 397, 53 L. Ed. 695, Mr. Justice Day, delivering the opinion of the court in that case, said:

"An action for personal injuries is universally held to be transitory, and maintainable wherever a court may be found that has jurisdiction of the parties and the subject-matter."

This principle of law is so well established that further citation of authority would be a matter of supererogation. So far as relates to the subject-matter, the Texas court indubitably has jurisdiction.

Under the facts established by the testimony of Hawks and Hawley, it can admit of no question, in our opinion, that jurisdiction of the party was likewise acquired by the service of process upon the general manager, Simmons. Article 1861, R.S., provides that in any suit against a foreign corporation citation or other process may be served on its president, vice president, secretary, treasurer, general manager, or any local agent within the state. The service upon Simmons is expressly authorized by this statute, and the authority of the state to so provide is abundantly supported by the court of last resort in such matters. The contention that it was essential to the validity of the service that appellant should have expressly authorized Simmons to receive service of process has been unequivocally repudiated. Mr. Justice Day, in Commercial Mutual Accident Co. v. Davis, 213 U.S. 245, 29 S. Ct. 445, 53 L. Ed. 782, says:

"It is not necessary that express authority to receive service of process be shown. The law of the state may designate an agent upon whom service may be made, if he be one sustaining such relation to the company that the state may designate him for that purpose, exercising legislative power within the lawful bounds of due process of law."

To the same effect is Connecticut Mutual Life Ins. Co. v. Spratley,172 U.S. 602, 19 S. Ct. 308, 43 L. Ed. 569.

It would be a very difficult matter to formulate a definition of what constitutes doing business in a state by a foreign railroad corporation applicable in all instances, and the question may be best determined upon the facts arising in each case as it presents itself. Here from the testimony of Hawks and Hawley it is apparent that the company, through Simmons and its other officers and agents, was doing business in Texas. It appears that its managing officers and agents reside in El Paso county, maintain their offices there, there transact the business of the company confided to them, and that such business is executive and departmental in its nature, is most important, and in every respect must be considered company business. Surely, this may safely be treated as doing business by the company in Texas. Railway Co. v. Alexander, 227 U.S. 218, 33 S. Ct. 245, 57 L. Ed. 486, Ann.Cas. 1915B, 77; Com. Mut. Ace. Co. v. Davis, 213 U.S. 245, 29 S. Ct. 445,53 L. Ed. 782; Conn., etc., v. Spratley, 172 U.S. 602, 19 S. Ct. 308,43 L. Ed. 569; Railway Co. v. Demere, 145 S.W. 623.

So it remains only to be determined whether the general manager in this case was such an agent as the state might lawfully designate as one upon whom service of process might be had. Upon this phase of the case it is settled that service of process upon foreign corporations doing business within the state may be had upon an agent who there represents the corporation in its business (Peterson v. Railway Co., 205 U.S. 364,27 S. Ct. 513, 51 L. Ed. 841; St. Clair v. Cox, 106 U.S. 350, 1 S. Ct. 354,27 L. Ed. 222; Goldey v. Morning News, 156 U.S. 518, 15 S. Ct. 559,39 L. Ed. 517; Conley v. Mathieson Alkali Works, 190 U.S. 406,23 S. Ct. 728, 47 L. Ed. 1113; Railway Co. v. Cox [Sup.] 157 S.W. 745); and, as has been seen, appellant was doing business in this state, and in the transaction of its business was represented by its general manager, Simmons, who had his residence and business office in the county where the suit was brought. Service upon Simmons was sufficient (Railway Co. v. Alexander; Com. Mut. Ace. Co. v. Davis; Conn., etc., v. Spratley; Railway Co. v. Demere — all supra).

It thus follows that the court had jurisdiction of the subject-matter and parties, and the injunction against the prosecution of the suit was properly dissolved.

Appellant insists that the rules of law and decisions to which we have adverted have been overruled by the decision of the Supreme Court of the United States in the recent case of Simon v. Southern Ry. Co.,236 U.S. 115, 35 Sup. Ct 255, 59 L. Ed. 492, and it is thereby now established, that the power of the state to designate by statute an individual upon whom service of process may be had in suits against foreign corporations is limited to causes of action arising upon business transactions transpiring and torts committed within the state enacting such law; and as to all other causes of action against such corporations service of process even upon any agent will not confer jurisdiction, unless such agent has been authorized by the corporation to receive process in its behalf.

The Simon Case is the only one of the number cited by appellant which can be considered as in any wise upholding the position assumed, and what we regard as the proper interpretation of the opinion therein rendered does not sustain appellant. It was there held in a suit brought in Louisiana against a foreign corporation, upon a transitory cause of action arising in Alabama, that service of process upon an officer of the state of Louisiana, under a statute of that state authorizing such service, was not effective to give the courts of Louisiana jurisdiction, and the judgment rendered violated the due process clause of the Constitution. There was no voluntary agency relationship whatsoever existing between the officer so designated and the corporation. His authority to receive service of process arose by virtue of the statute alone. In passing upon this state of facts, the Supreme Court simply held that the power of the state to designate one who was in no wise connected with the defendant corporation as one upon whom service of process might be had, if it exists at all, is limited to causes of action arising out of business and transactions transpiring within the state. It did not hold that the state was without authority to designate a duly accredited agent of the corporation located within the state, and there transacting the business of the corporation as a proper person upon whom service of process could be had.

It may be conceded that broad language is used in the Simon Case, but to give it literal application upon the facts presented here would be in conflict with rules of law established by numerous decisions of the Supreme Court over a long period of time. As to corporations it would overturn the universally accepted rule that an action upon a transitory cause of action is maintainable wherever a court may be found having jurisdiction of the parties and subject-matter. If it was the intention of the court in the Simon Case so radically to change universally accepted principles and its own unbroken line of authority, it would doubtless have done so in no uncertain terms, and not by implication merely.

It is further asserted by the appellant that jurisdiction in one state of a cause of action arising in another state, even in transitory causes of action, is exercised only upon principles of comity, and in the instant case should be denied. No reason is apparent why in this case recognition should be denied of the principle of comity indicated.

The court below did not err in dissolving the injunction theretofore issued, and its judgment is affirmed.