Opinion
Decided February 9, 1931.
Summons — Foreign corporations — Section 11290, General Code — "Doing business" in Ohio, determined from particular facts — Foreign railroad representative, "managing agent," when.
1. Whether foreign corporation is "doing business" within state, so as to justify service of process upon agent, must be determined from particular facts (Section 11290, General Code).
2. Foreign railroad corporation, having office in state for soliciting traffic, held, "doing business" within state, justifying service upon "managing agent" (Section 11290, General Code).
ERROR: Court of Appeals for Hamilton county.
Mr. Joseph R. Rohrer, for plaintiff in error.
Mr. Alfred B. Benedict and Mr. Carl G. Werner, for defendant in error.
This case comes into this court on error from the court of common pleas of Hamilton county, wherein judgment was rendered in favor of the defendant railroad upon a motion to quash service, which was sought to be sustained under Section 11290, General Code, providing that, "when the defendant is a foreign corporation, having a managing agent in this state, the service may be upon such agent."
Any construction of this or of similar statutes involves as a decisive factor determination of the question, Was or was not the foreign corporation engaged in interstate commerce "doing business" within the state of Ohio?
There are two diverging lines of authorities upon cases similar to the instant one. These may be found collated in a decision of this court. I.N. Price Co. v. Davis, Agent, 22 Ohio App. 388, 153 N.E. 529, 46 A.L.R., 577, 583. It is, as stated in many of these authorities, always a question to be determined from the particular facts in the case. This is illustrated in the cases of Green v. Chicago, Burlington Quincy Ry. Co., 205 U.S. 530, 27 S. Ct., 595, 51 L. Ed., 916, and St. Louis Southwestern Ry. Co. v. Alexander, 227 U.S. 218, 33 S. Ct., 245, 57 L. Ed., 486, Ann. Cas., 1915B, 77; the former decision being specifically approved in the latter.
What then in this case were the activities of the railroad company as performed through its agent?
John C. Bayer, upon whom service for the railroad was made, testified that he was "General Agent of the Chicago, Burlington Quincy Railroad Company in Cincinnati."
The door of the office maintained in the city of Cincinnati by the railroad bore the following inscription: "Chicago, Burlington Quincy Railroad Co., Colorado and Southern Railway Co., Ft. Worth and Denver City Ry. Co., General Agent."
A number of personal cards of the general agent and his subordinates were introduced in evidence. These bore the name of the appropriate person and the title, such as "General Agent," "City Freight Agent," "Traveling Freight Agent," "Traveling Passenger Agent," "City Passenger Agent," "Chief Clerk," and the names and office address of the three railroads, and in most cases the telephone number of the office.
The agent testified he was in charge of the subordinates and was responsible to the assistant to the manager in Chicago. One and sometimes two stenographers were on duty in the office. The territory under the jurisdiction of the office included parts of Ohio, Kentucky, West Virginia and Virginia.
Some of the employes solicited business. In some cases, when through tickets were desired, the agent would take the money and secure the tickets for the customer from other connecting lines, or get the tickets, leave an I.O.U., and later pay for the tickets upon receiving payment from the customer.
As to freight claims, the agent stated: "We have made it a practice of friendship between our company and the shippers or consignee in our territory, that if they have claims against our company if they will take it up with us to go in with our general office at Chicago. If we feel there is any justice in the claim, we will endeavor to straighten it out, otherwise we have nothing to do with it."
The Cincinnati office has nothing to do with rate adjustments, does not issue bills of lading, or sell tickets for the Cincinnati, Burlington Quincy Railroad. A supporting affidavit was also filed in which it is averred that the railroad has no tracks within the state of Ohio, that the general agent, Bayer and his subordinates, were located in Cincinnati for the mere purpose of soliciting business for the railroad, that is, the soliciting of shipments of freight, and inducing passengers to ride upon its cars; that no contracts were made by any one in the Cincinnati office of the railroad.
Such are the facts in the case.
In approaching a decision of whether or not the railroad was doing business in this state, we have in mind the language of the Supreme Court of the United States in Railway Co. v. Alexander, supra, page 227 of 227 U.S. 33 S. Ct., 245, 247: "This court has decided each case of this character upon the facts brought before it and has laid down no all-embracing rule by which it may be determined what constitutes the doing of business by a foreign corporation in such manner as to subject it to a given jurisdiction. In a general way it may be said that the business must be such in character and extent as to warrant the inference that the corporation has subjected itself to the jurisdiction and laws of the district in which it is served and in which it is bound to appear when a proper agent has been served with process. Lafayette Ins. Co. v. French, supra, p. 407 [18 How., 15 L. Ed., 451]; Green v. Chicago, Burlington Quincy Ry. Co., supra, p. 532 [ 205 U.S. 27 S. Ct., 595, 51 L. Ed., 916.]"
In this case, while some weight is evidently given by the court to the fact that a closely associated railroad (the two making together what was termed the "Cotton Belt Route"), terminated at the place of service, at least equal force is given to the exercise of discretion by the agent over claims against the railroad presented to him. This was also one factor considered in Price Co. v. Davis, Agent, supra.
In the instant case we have quoted from the record showing the agent exercised discretionary powers over claims presented.
We are unable to differentiate this case from either the Price case, supra, in which the court has taken a definite stand upon facts very similar to those herein, or the Alexander case, supra, in the Supreme Court, and at the same time recognizing that the facts in the Green case, supra, are also very close to those in this case.
It is our conclusion, therefore, that the court of common pleas erred in quashing the service, and its judgment will be reversed, and the cause remanded for such further proceedings as may be consistent with law.
Judgment reversed and cause remanded.
HAMILTON and CUSHING, JJ., concur.