Barrow Company v. Kane

by Horace Gray

United States Supreme Court

170 U.S. 100

Barrow Company  v.  Kane

This was an action brought November 1, 1894, in the circuit court of the United States for the Southern district of New York by Michael Kane against the Barrow Steamship Company, Limited.

The complaint alleged that the plaintiff was a citizen of New Jersey, and resided at Newark, in that state, and that 'the defendant is a corporation organized and incorporated under the laws of the kingdom of Great Britain, and is the owner of a certain steamship, known as the 'Devonia,'a nd is, and was at the time hereinafter mentioned, a common carrier of passengers, and engaged in the business of transportation of freight and passengers upon said steamship Devonia, and other steamers, among other places, from Londonderry, Ireland, to the city of New York, and has offices and property in the said city of New York, and its general agents therein, managing the affairs of the said company within said city, and is a resident and inhabitant of the city of New York, and the Southern district of New York, within the meaning of the statute in such case made and provided'; that 'the said defendant operates its business, or part thereof, in and under the name, and as part of, the Anchor Line, and its said business is in whole or in part done under that name, and its steamers, including the said Devonia, belong to what is known as the 'Anchor Line Steamships'; that the general managers of said business in the city of New York are the firm of Henderson Bros., who are the general agents of said defendant, and the officers of said defendant company and said agents are at No. 7 Bowling Green, and pier 54 North river, in said city; that on or about September 13, 1893, the plaintiff purchased and paid for a ticket as a passenger for transportation by defendant from Londonderry, in Ireland, kingdom of Great Britain, to the city of New York, on the steamship Devonia, belonging to said defendant, and the said defendant received the said plaintiff as a passenger, and undertook and promised to transport the said plaintiff from said Londonderry to New York with due care, and to do all those things necessary and required for the safe transportation of the said plaintiff to and from said points, and it became and was its duty, and it became bound, to protect and save harmless the said plaintiff from any injury or harm from its agents or servants employed in its business;' and that 'for the purpose of transporting passengers over part of the voyage, viz. from Londonderry to the steamship Devonia, lying in the harbor, the said defendant used a certain tender; that said plaintiff, being a passenger on said tender in pursuance of the obligation and promise aforesaid, the same being part of the transportation to New York, was violently, on or about September 14, 1893, assaulted and maltreated, without just cause or excuse, and wrongfully and unlaw fully, by servants or agents of said defendant on said tender,' as particularly stated in the complaint, and thereby suffered damages to the extent of $20,000.

To this complaint the defendant filed the following appearance and demurrer: 'The defendant above named, appearing specially by Henry T. Wing and Harrington Putnam, as its attorneys, specially, only for the purpose hereof, as stated in its special appearance, noted herein, demurs to the complaint herein for the special purpose, and no other, until the questions herein raised have been decided, of objecting to the jurisdiction of this court, demurring and excepting to the complaint, because it appears upon the face thereof of that the court has not jurisdiction of the person of the defendant, nor of the subject-matter of the action, for the reason that neither the defendant nor the plaintiff is an inhabitant or resident of the Southern district of New York, and the action, therefore, cannot be maintained therein, and that the defendant is a foreign corporation, and the cause of action did not arise within the state of New York. Wherefore defendant prays judgment whether this court has jurisdiction, and asks that the complaint be dismissed, with costs; but, should the court overrule this demurrer and exception, the defendant then asks time and leave to answer to the merits, though excepting to the action of the court in overruling said demurrer.'

The court overruled the demurrer, with liberty to answer the complaint. The defendant thereupon answered, and the case went to trial.

When the plaintiff's counsel had opened the case to the jury, the defendant's counsel moved to dismis the suit upon the ground 'that it appeared upon the face of the complaint that the court had not jurisdiction thereof, that it had no jurisdiction of the person of the defendant, and that it had no jurisdiction of the subject-matter of the action,' and presented as grounds of the motion the same reasons that had been urged at the hearing on the demurrer. The court denied the motion, and the defendant duly excepted to the denial.

At the close of the testimony the defendant again moved the court to dismiss the proceedings on the ground of want of jurisdiction, both of the subject-matter and of the person of the defendant. The motion was denied, and an exception reserved.

The trial resulted in a verdict for the plaintiff for $7,500, upon which judgment was rendered.

The defendant took the case by writ of error to the circuit court of appeals, which requested the instruction of this court upon a question of law, and embodied in its certificate the provisions of the New York Code of Civil Procedure, which are copied in the margin, ^[1] the foregoing pleadings and proceedings in the case, and this statement of facts: 'The cause of action is for damages alleged to have been sustained in consequence of an assault upon the plaintiff, a passenger by the defendant's steamship, while the plaintiff was in transit under a contract of transportation, by a person for whose acts it is alleged the defendant was responsible. The alleged assault took place in the port of Londonderry, Ireland. The plaintiff is a citizen and resident of the state of New Jersey. The defendant is a corporation organized and incorporated under the laws of the United Kingdom of Great Britain and Ireland. It is a common carrier operating a line of steamships from ports in that kingdom to the port of New York. It does business in the state of New York, through the firm of Henderson Bros., its regularly appointed agents, and has property therein. There is no proof of any written designation by the defendant of any one within the state of New York upon whom service of process may be made. Service of the summons was made on a member of the firm of Henderson Bros., as agents for the defendant.'

The question of law certified was: 'Had the circuit court jurisdiction to try the action, and render judgment therein against the defendant?'

Esek Cowen, for plaintiff in error.

F. K. Pendleton, for defendant in error.

Mr. Justice GRAY, after stating the facts, in the foregoing language, delivered the opinion of the court.

Notes

1. Sec. 432 (amended 1877, c. 416). How Personal Service of Summons Made upon a Foreign Corporation. Personal service of a summons upon a defendant, being a foreign corporation, must be made by delivering a copy thereof, within the state, as follows:

(1) To the president, treasurer or secretary; or, if the corporation lacks either of those officers, to the officer performing corresponding functions, under another name.

(2) To a person designated for the purpose by a writing, under the seal of the corporation, and the signature of its president, vice president, or other acting head, accompanied with the written consent of the person designated, and filed in the office of the secretary of state. The designation must specify a place, within the state, as the office or residence of the person designated; and, if it is within a city, the street, and the street number, if any, or other suitable designation of the particular locality. It remains in force, until the filing in the same office of a written revocation thereof, or of the consent, executed in like manner; but the person designated may, from time to time, change the place specified as his office or residence, to some other place within the state, by a writing, executed by him, and filed in like manner. The secretary of state may require the execution of any instrument, specified in this section, to be authenticated as he deems proper, and he may refuse to file it without such an authentication. An exemplified copy of a designation so filed, accompanied with a

certificate that it has not been revoked, is presumptive evidence of the execution thereof, and conclusive evidence of the authority of the officer executing it.

(3) If such a designation is not in force, or if neither the person designated, nor an officer specified in subdivision first of this section, can be found with due diligence, and the corporation has property within the state, or the cause of action arose therein; to the cashier, a director, or a managing agent of the corporation, within the state.

Sec. 1780. When Foreign Corporations may be Sued. An action against a foreign corporation may be maintained by a resident of the state, or by a domestic corporation, for any cause of action. An action against a foreign corporation may be maintained by another foreign corporation, or by a nonresident, in one of the following cases only:

(1) Where the action is brought to recover damages for the breach of a contract made within the state, or relating to property situated within the state at the time of the making thereof.

(2) Where it is brought to recover real property situated within the state, or a chattel, which is replevied within the state.

(3) Where the cause of action arose within the state, except where the object of the action is to affect the title to real property situated without the state.