The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919. Page: 48
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256 FEDERAL REPORTER
At Law. Actions by Gertrude Walsh and by Alfred E. Walsh
against the Atlantic Coast Line Railroad Company. On motions to
quash service, and to dismiss for want of jurisdiction over defendant.
Hurlburt, Jones & Cabot and Cunningham & Ronan, all of Boston,
Mass., for plaintiffs.
Putnani, Putnam & Bell and Arthur F. Ray, all of Boston, Mass.,
specially, for defendant.
MORTON, District Judge. These are two actions at law begun by
writs issued out of this court. That by Mrs. Walsh is to recover dam-
ages for personal injuries received by her in the state of Florida
through the alleged negligence of the defendant, and that by her hus-
band is to recover for loss of consortium. The writs were served by
delivering this summons and attested copy of each' writ "to J. H.
Johnson, New England agent of said corporation, in hand, at its usual
place of business, 248 Washington street, Boston" (marshal's return).
The defendant has filed a motion "to vacate and quash the plaintiff's
alleged service of the writ, * * * and to dismiss said writ, for
want of jurisdiction over the person of said defendant," for certain
reasons therein alleged; the principal ones being that the defendant
is a Virginia corporation, and at the time of the alleged service wks
not present, nor doing business within this district, nor subject to
service here, and that Johnson at that time was not "such an agent of
the defendant as to permit service upon the defendant by delivering
an original summons of the writ * * * to him, * * * and
that no due service has been made on the defendant." Of course,
under the Massachusetts practice, a motion to dismiss is properly used
only with reference to defects or lack of jurisdiction which appear up-
on the face of the papers. This motion is-in effect a plea in abatement;
it has been treated as such by the parties; and I shall deal with it in
the same way. There was a hearing upon it before me, at which wit-
nesses testified orally, and documentary evidence was introduced.
The material facts are as follows:
The plaintiffs are residents and citizens of Massachusetts; the de-
fendant is a Virginia corporation, as alleged in the writ. It owns
and operates a railroad in certain of the Southern States, no part of
which comes into Massachusetts. It does not own or operate any rail-
road or transport any passengers or freight within this state. For
about 20 years Johnson has been New England agent for the Atlan-
tic Coast Line (which is a combination of the freight departments
of the defendant company and of the Merchants' & Miners' Trans-
portation Company), and has also been New England agent of the
defendant for the solicitation of passengers; his duty being to try
to get passengers to travel upon the defendant's line. In connection
with this work, the defendant itself hired, under a written lease from
one Marsters to it, part of a shop on Washington street, Boston, pay-
ing therefor $3,300 a year rent. On the window of this shop is a
prominent sign, bearing the words "Atlantic Coast Line"; other signs
there bear the words "Tickets" and "Freight." Johnson paid the run-
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The Federal Reporter with Key-Number Annotations, Volume 256: Cases Argued and Determined in the Circuit Courts of Appeals and District Courts of the United States, May-July, 1919., legislative document, 1919; Saint Paul, Minnesota. (digital.library.unt.edu/ark:/67531/metadc38827/m1/62/: accessed July 27, 2017), University of North Texas Libraries, Digital Library, digital.library.unt.edu; crediting UNT Libraries Government Documents Department.