Stewart Fruit Co. v. Chicago, Milwaukee & St. Paul Railroad

Thomas, J., delivered the opinion of the Oourt. This suit was brought in November, 1921, in the Superior Oourt of Baltimore City by the Stewart Fruit Company of Baltimore City, a corporation, against the Baltimore & Ohio Railroad Company, hereinafter called the B. & O. Company, and the Chicago, Milwaukee & St. Paul Railroad Company, hereinafter called the Chicago Company, to recover the value of a carload of apples and loss of profit on same, which the declaration alleges was delivered in April, 1920, at Seattle, in the State of Washington, by the Wenatchee Valley Fruit Exchange to the Chicago Company for transportation and delivery over its line and connecting lines to the said exchange at St. Paul, in the State of Minnesota, and, before its arrival at St. Paul, was purchased by the plaintiff and the carrier notified to divert it from the City of St. Paul and to deliver it “on the lines of the Baltimore & Ohio Railroad at the City of Baltimore” to the shipper, “notify Stewart Fruit Company,” but which the Chicago Company and its connecting lines failed to deliver to the plaintiff at Baltimore City. The writ for the Chicago Company was served upon “Andrew G. Cromwell, Agent,” whereupon said company, by Duncan K. Brent, its attorney, who appeared solely for the purpose, filed a motion to quash the writ of summons and dismiss the suit upon the grounds, (1) that at the time of the institution of the suit and service of said writ it was a non-resident corporation, and never had been engaged in doing business or exercising its franchises in the State of ⁵⁸ Maryland. (2) “That it has not any resident agent, president, manager, ticket agent or any other officer within said State upon whom process can be served in accordance with the provisions of article 23, see. 92, of the Public General Laws of Maryland.” (3) That Andrew G. Cromwell, upon whom the writ was served, was a ticket agent employed ■solely by the B. & O. Company at Mt.

Royal Station, in Baltimore, Maryland, and was not an officer, servant, agent ■or employee of the Chicago Company, and (4) that the assumption of jurisdiction by said court over it by virtue of the writ of summons in this case would be a denial to it of due process of law, as provided by the Fourteenth Amendment of the Constitution of the United States. The plaintiff answered the motion, alleging that at the time of the service of the writ and the institution of the suit the Chicago Company was doing business and exercising its franchises in the State of Maryland; that it had a ticket agent and a freight agent and other officers within the State upon whom process could be served; that Andrew G. Cromwell, upon whom the writ was served, was a ticket agent selling tickets in Baltimore City over the Chicago Company’s railroad in connection with his duties as agent of the B. & 0. Company, “and actually sold to this plaintiff such a ticket of said two railroads as a connecting through passenger carrier and received the entire passage money for the same”; that the assertion of jurisdiction by the Superior Court over said company would not be a denial to it of due process of law, “but on the contrary * * * the cause of action in this case arose from a contract made in Seattle, Washington, for a through freight rate from Seattle, * * * to Baltimore City over its line and over the”' B. & O. Company’s line, “constituting a through trunk line from the two cities engaged in interstate commerce and under through rates as promulgated by the Interstate Commerce Commission and that the” B. & 0- Company “was its agent to collect the entire freight from the through route and remit the” ⁵⁹ Chicago Company’s “share to it after said collection, and has since, and is now, so engaged in through traffic under joint through rates, and it is acting as the agent for the” B. & O. Company “for freight originating over the” B. & O. Company’s “lines and collecting the entire freight at point of destination on the line of the” Chicago Company “and remitting the” B. & O. Company’s “portion of said freight to it, and that they are likewise doing the same business, performing the same service and acting as agent in the same capacity in the transportation of passengers between the points on the lines of the two connecting carriers.” At the hearing of the motion, the Chicago Company proved by its secretary that it is a corporation of the State of Wisconsin; that it has no property in the State of Maryland, and has never “qualified” in Maryland to conduct business therein, and that so far as he knows it has never exercised “its franchise” in Maryland, and has no office in Maryland, and no agent in Baltimore City engaged in soliciting freight. H. E. Pierpont, traffic manager of the Chicago Company, having general supervision of the freight and passenger traffic of that company, testified that the company did not maintain an office, place of business or agency in Maryland; that it has no agent, officer, employee or ticket agent located in Maryland; that the company has no agent or employee in Baltimore City to whom a shipper of apples from Chicago to Baltimore could go to find out what the rates were, but that he would have to go to Philadelphia; that he had never heard of Andrew G. Cromwell, and that Mr. Cromwell was not an officer, agent or employee of the Chicago Company.

II

H. Field, general solicitor and one of the officers of the Chicago Company, stated that the company had never “qualified in the State of Maryland as a non-resident corporation,” and that it has never exercised its franchise, and has never had any railroad or any fixed property, in Maryland- Mr. Calloway, passenger traffic manager of the B. & O. Company, testified that Mr. Grom ⁶⁰ well was the ticket agent of the B. & 0. Company at Mt. Royal Station, in Baltimore City, whose duties consisted in selling passenger tickets, and that his entire salary was paid by the B. & O. Company; that if a man wanted to go to some place off the line of the B. & 0. Company and went to Mt.

Royal Station to buy a ticket, Mr. Cromwell would first ascertain what railroad he wanted to go on and what route he preferred, then look up the train accommodations, let him select the railroad train he preferred, and then sell him a ticket to his destination; that that “method of procedure” applies to all railroads making connection with the B. & 0. Company’s road; that there is no particular arrangement with the Chicago Company; that the selection of the railroad is left to the passenger; that the B. & O. Company ha's to be neutral in reference to such selection, and that Mr-Cromwell’s instructions are that in the conduct of the business he must not influence a passenger to use one connecting line rather than another; that there is a reciprocal arrangement between all railroads; that the B. & O. Company sells tickets over its own line and connecting lines, collects the whole fare, and after deducting the charges on its own line, sends the connecting lines their shares of the fare or mileage without any charge for selling the ticket over their lines, and that those lines reciprocate when they sell tickets from points on their lines to a point on the line of the B. & O. Company; that this arrangement exists with all railroads in the United States, and there is no difference in the 'arrangement between the B. & O. Company and the Chicago Company; .that a monthly settlement is made by the various roads; that at the end of each month the accounting department of the B. & O. Company sends the Chicago Company a report showing how much is due it from tickets routed over its road, and the Chicago' Company sends the B. & 0. Company a report showing the amount due the B. & O. Company for tickets sold over its line, and the road shown by the accounting to be the debtor road sends the other road ⁶¹ a check for the amount due it; that before the B. & O. Company can sell a through ticket over the lines of other roads it has to secure from them a “concurrence,” which is a form filed with the Interstate Commerce Commission showing that they concur in the fares and rates published by the B. & O. Company, and that the same rule applies to roads desiring to sell through tickets over the B. & O. Company’s road. When shown a ticket from Mt.

Royal Station, Baltimore, to Racine, Wisconsin, over the B. & O. Company’s road, and over the Chicago Company’s road from Chicago to Racine, and the printed statement thereon, “In selling this ticket and checking baggage hereon, this company acts only as agent and is not responsible beyond its own line,” Mr. Calloway explained that the statement simply meant that the B. & 0. Company was not responsible for accidents, etc., beyond its own line, and that it did not mean that it Was not responsible to the Chicago' Company for its share of the fare collected for the ticket. Mr. Cromwell, upon whom the writ was served, testified that he sold the ticket referred to above for $30.37 and turned the money over to the B. & O. Company; that he sold the ticket according to the rate shown in the tariff; that his instructions are from the B. & O. Company, and that he collects the entire fare for it, and does not receive any instruction from the Chicago Company or know that company in the transaction; that he is the ticket agent of the B. & O. Company at Mt- Royal Station, and that that company pays all of his Salary; that he does not solicit any business, but simply sells the ticket after the passenger tells him “where and how he wants to go.” Mr. Shumate, general freight traffic manager of the B. & O. Company, testified that the “initial line that originates the freight, publishes the through rate * * * ; before they can publish a through rate they have to get the concurrence of the lines over which the rates apply; that is the form of concurrence which has been prescribed by the Interstate Commerce Commission”; that when a car arrives over the B. & O. Company’s road, and ⁶² the freight has not been prepaid, the billing shows the weight, the rate and total charges, and that the B. & O. Company, after checking the charges against the tariff to see if they are correct, collects the charges as the “delivering line”; that the B. & O. Company is a party to a tariff which ^hows the amount to be collected, and that it is its duty to collect the total charge; that in doing so it is complying with the, law “as applying to the B. & O. R. R.,” and that the B. & O. Company does not collect it “as the agent for anybody,” but collects it because it is a party to the total charge, and the share belonging to the other roads is sent to them monthly; that the r'ailroads have monthly settlements according to the general plan applicable to the passenger business; that there are a good many cars of fruit shipped from Seattle and the West, and that there are generally some cars of the Chicago Company on the B. & 0. Company’s line; that he knows Mr. Lincoln, but does not know Mr. Phyle, and does not know that either of them ever came to his office to see him; that the relations of the B. & O. Company with the Chicago Company “are the same as with all other roads in the United States,” and that the question of rates is governed by the tariffs filed with the Interstate Commerce Commission.

Mr. Thirkle, who was employed by the Columbia Paper Box Company in Baltimore City, testified that his company had been shipping paper boxes in carload lots to Kansas City, and that about January 9th, 1922, he received a' letter on the stationery of the Chicago Company requesting that he favor that company’s road with a certain amount of freight moving from Baltimore to Kansas City, and that about the first week in Eebruary following Charles H. Phyle came to his office, presented his card, and said that he was traveling freight agent of the Chicago Company, and that he came to pay a personal visit and to repeat the request made in said letter. The letter referred to purported to come from the office of “General Agent, Traffic Department” of the Chi ⁶³ cago Company, at Philadelphia, Pennsylvania, and was signed by “Geo. J. Lincoln, General Agent.” Mr. Thirkle further testified that, shortly after Mr. Phyle’s visit, his company shipped a car to Kansas City and routed it over the Chicago Company’s road, and that since then his company has continued to send its freight for Kansas City over that road; that he never saw Mr.