Central of Georgia Railway Co. v. Eichberg

Worthington, J., delivered the opinion of the Court. The action in this case was instituted in the Superior Court of Baltimore City by the appellees (plaintiffs below) against the appellant and the Merchants and Miners Transportation Company, as joint" defendants, to recover damages alleged to have been sustained by the plaintiffs through the negligence of the defendants in transporting a large quantity of wrapping paper and paper bags from Atlanta, in the State of Georgia, to Baltimore,-in the State oí Maryland; the wrapping paper and paper bags having been as alleged injured in transit. ³⁶⁵ The narr avers that both the defendants are common carriers of goods; the Central of Georgia Railway Company operating a steam railroad from Atlanta, in the State of Georgia, to Savannah, in the State of Georgia; and the Merchants and Miners Transportation Company operating steamships from Savannah, in the State of Georgia, to Baltimore, in the State of Maryland. Upon the filing of the narr a summons was issued out of said Court for the defendants, upon which the Sheriff made the following return: “Summoned the Merchants and Miners Transportation' Company, a body corporate, by service on John H. Robinette, treasurer, and the Central of Georgia Railway Company by service on Frank L. Mortimer, its commercial agent, and a copy of narr and notice to plead left with each defendant, also notice of said summons left at the principal offices of the said corporations, also copies of the writ of summons, the process in the within case under cover with postage stamp annexed to each envelope placed in the postoffice of Baltimore City on the 21st day of March, 1907, and directed to John H. Robinette and Frank L. Mortimer respectively, at the principal offices of said companies at the southeast corner of Light and German streets in the city of Baltimore, they being the officers in charge thereof.” Subsequently the Central of Georgia Railway Company appeared by counsel, specially and not generally, and moved the Court to quash the writ of summons issued against it and to set aside the alleged service of the same, for the reasons (1) that the said railway company was incorporated by the State of Georgia, where its lines were chiefly located, and that it did not-transact business in the State of Maryland so as to be amenable to the jurisdiction of the Courts of this State; and (2) that service was not made on such an agent of said corporation as would legally bring the corporation into Court. The Court below held the service sufficient and the railway company has brought this appeal.

It was agreed by counsel at the argument that no advantage should be taken of the fact that there has been no final dispo ³⁶⁶ sition of the case by the Court below; the desire on both sides being to have the question of the sufficiency of the service determined by this Court on this appeal. In regard to the service of summons on foreign corporations the statute law of this State provides as follows: (409) “Any corporation not chartered by the laws of this State which shall transact business therein shall be deemed to hold and exercise franchises within this State and shall be liable to suit in any of the Courts of this State on any dealings or transactions therein.” (411) “Suits may be brought in any Court of this State, * * * against any corporation not incorporated under its laws, but deemed to hold and exercise franchises herein, * * * by a resident of this State for any cause of action; and process in such suits may be served as provided in section 410, and also upon any agent of such corporation, * * * and in case of service of process on any agent notice of such process shall be left at the principal office of said corporation * * * if there be such office in this State.” Code 1904, Art. 23, secs. 409, 410 and 411. The question is one for judicial determination upon the facts as they appear in the record. The question may be divided into two propositions, First: Was the appellant doing business in this State?

Second: Was the service upon a proper agent of the appellant? The facts as they appear in the affidavits and testimony found in the record are as follows: The appellant is a railroad corporation organized and existing under the laws of t-he State of Georgia, having its whole railroad and traffic in that State and in adjoining States, no portion of its line of railway extending into this State. It does however have an agent in this State, a Mr. Mortimer, whose duty is to solicit in Baltimore and the surrounding territory, traffic for and over what is called the “Central Savannah Line.” The Central Savannah Line having no distinct legal entity, but being merely a name to indicate the route made up of the Merchants and Miners Transportation ³⁶⁷ Company, the Central of Georgia Railway Company, and the connections of the said railway company. Mr. Mortimer has an office in Baltimore, the expense of maintaining which is paid jointly by the companies above named.

He has no authority as the employee of the Central of Georgia Railway Company to make contracts or agreements for the shipment of goods or passengers or to sign any bills of lading for freight. All bills of lading for goods received by the Merchants and Miners Transportation Company for shipment to Savannah, Georgia, and from thence to points on the appellant’s line are issued by the said Merchants and Miners Transportation Company. All other bills of lading issued in Maryland entitling the holder thereof to the transportation of property over the appellant’s line in Georgia, are issued by the initial carrier and not by the appellant. Mr. Mortimer in the solicitation of business is under the direction of the Merchants and Miners Transportation Company.

He has no discretion in the quoting of rates and no authority to make or agree to rates other than those printed in the tariff issued to the public for account of the appellant railway company by the Merchants and Miners Transportation Company. He has no authority to collect any moneys in payment of freight or to entertain or pay claims for loss or upon any other ground. Mr. Mortimer’s salary is paid to him directly by the Merchants and Miners Transportation Company, who in turn collects from the appellant its proportionate part. The appellant has no property in the State of Maryland except its interest in the furniture and fixtures used by Mr. Mortimer in his office.

Mr. Mortimer’s whole duty is to solicit freight, to seek to get it against the appellant’s competitors, and to persuade the shippers to select the route which includes the Central of Georgia. In case of goods going south over the Central Savannah Line, via. the Merchants and Miners Transportation Com ³⁶⁸ pany, the latter would issue the bill of lading. The bill of lading in the record reads in part as follows: "This bill of lading is signed for the different carriers who may engage in the transportation, severally not jointly, each of which is to be bound by and have the benefit of the provisions thereof, and in accepting this bill of lading the shipper, owner and con-. signee of the goods and the holder of the bill of lading agree to be bound by all its stipulations whether printed or written.” A ticket sold by the Merchants and Miners Transportation Company over its line to Savannah and thence by the appellant’s road to Macon, Georgia, reads in part as follows: "In selling this, ticket for passage over other lines and checking baggage on it the Merchants and Miners Transportation Company acts only as agent and is not responsible beyond its own line.” One of the coupons on the ticket reads as follows: "Transfer — Transfer of one passenger and ordinary baggage from the Merchants and Miners Transportation Company’s wharf to Central of Georgia Railway-depot. ” Then follow the names of several cities and towns in Georgia and Alabama presumably stations on the line of appellant’s railroad in those States, and then appear the words "Issued by Merchants and Miners Transportation Company.” • On cross-examination Mortimer stated "that his office is in the Merchants and Miners’ office building at the corner of Light and German streets, and that on the window of his office are the words “Central of Georgia Railway, Commercial Agent,” that he received his pay from the Merchants and Miners Transportation Company, but presumed it is contributed to by the Atlantic Coast Line, and the Central of Georgia Railway Company; if one wanted to send freight from here (Baltimore) to some point on the Central of Georgia Railway, witness would quote him a rate; witness would not take the money and issue a bill of lading. This would be done by the agent of the Merchañts and Miners Company at Long Dock.” It was admitted for the purposes of the motion that the plaintiffs are both residents of the State of Maryland.

It was ³⁶⁹ also admitted that through shipments are made from Baltimore by way of the Merchants and Miners Transportation line and the Central of Georgia Railway to points on the line of the latter road, and a through bill of lading is issued for the same and a single sum paid for the carriage; also that there is a sign on the door of the office where a ticket like the one aforementioned was sold, which reads: “Merchants and Miners Transportation Company’s Ticket Office.” On one of the windows in the building is the following sign: “Central Savannah Line, via. the Central of Georgia Railway and the Merchants and Miners Transportation Company. The regular advertising folders have inside of them the statement that the Central of Georgia sells