§ 273. Managing agent.

A statute passed in many States names the “managing agent" as a person to receive service of process for a foreign corporation. A managing agent does not mean the person who has charge of the whole business of the corporation; 78 such an agent would probably stay in the State of charter, or at least at the principal office of the company. "It, of course, intends a 'managing agent' in the state; and, where a corporation created by the laws of any other state does business in this state, the person who, as its agent, does that business should be considered its managing agent; and more especially should that be so where the foreign corporation has an office or place of business in this state, and when that office is in charge of that person, and he there acts for the corporation. He is there doing business for it, and so manages its business. Such person is, in every sense of the words used in the statute, 'a managing agent.' It means one invested with general powers, involving the exercise of judgment and discretion, as opposed to an ordinary agent, acting in an inferior capacity and under the direction and control of superior authority both as to the extent of the work and the manner of executing it.80

19 79

"Every object of the service is attained when the agent served is of sufficient character and rank to make it reasonably certain that the defendant will be apprised of the service made. The statute is satisfied if he be a managing agent to any extent." 81

442, 17 Atl. 1079; Kieley v. Central C. C. M. Co., 13 Misc. 85, 34 N. Y. S. 106; Clinard v. White, 129 N. C. 250, 39 S. E. 960; Foster v. Charles Betcher Lumber Co., 5 S. D. 57, 58 N. W. 9, 49 A. S. R. 859, 23 L.. R. A. 490.

78 Tuchband v. Chicago & A. R. R., 115 N. Y. 437, 22 N. E. 360; Palmer v. Pennsylvania Co., 35 Hun, 369; Taylor v. Granite S. P. Assoc., 20 N. Y. S. 135.

79 Danforth, J., in Tuchband v. Chicago & A. R. R., 115 N. Y. 437, 22 N. E. 360.

80 Reddington v. Mariposa L. & M. Co., 19 Hun, 405.

81 Palmer v. Pennsylvania Co., 35 Hun, 369.

Under this interpretation it has been held that the general passenger agent in New York City of a foreign railroad is a managing agent; 82 so is the resident general agent of a foreign newspaper who maintains an office to solicit subscriptions and advertisements.83 But one in charge of an office merely for the transfer of stock and the collection of assessments is not.84 Any agent having full discretion in his own field and accounting directly to the company, however limited his field may be, is a managing agent if his duty is connected with carrying on the business of the company. 85

This broad definition of "managing agent" leaves little difference between that term and the term "local agent," also common in statutes; and indeed a local express agent has been held a managing agent, though there was a State superintendent of the express service.86

$274. Local agent.

In several statutes, also, a "local agent" has been named as a proper agent for receiving process; and indeed this would usually be so held whether the local agent were expressly named in the statute or not.87 A local agent means an agent located in a certain limited district, and not an agent for the

82 Tuchband v. Chicago & A. R. R., 115 N. Y. 437, 22 N. E. 360.

83 Palmer v. Chicago Herald Co., 70 Fed. 886; Brewer v. George Knapp & Co., 82 Fed. 694; Union Associated Press v. Times-Star Co., 84 Fed. 419. 84 Reddington v. Mariposa L. & M. Co., 19 Hun, 405.

85 Hat Sweat Mfg. Co. v. Davis S. M. Co., 31 Fed. 294; Council B. C. Co. v. Omaha T. M. Co., 49 Neb. 537, 68 N. W. 929; Young & F. Co. v. Welsbach L. Co., 55 App. Div. 16, 66 N. Y. S. 1024; Perrine v. Ransom G. M. Co., 60 App. Div. 32, 69 N. Y. S. 698; Evans v. American S. F. Co., 30 Misc. 806, 61 N. Y. S. 922; Foster v. Charles Betcher Lumber Co., 5 S. D. 57, 58 N. W. 9, 49 A. S. R. 859, 23 L. R. A. 490.

86 American Exp. Co. v. Johnson, 17 Oh. S. 641.

87 Société Fonciere v. Milliken, 135 U. S. 304, 34 L. ed. 208; Bragdon v. Perkins Campbell Co., 82 Fed. 338; Howard v. Ry., 11 D. C. App. 300; Vermont L. & T. Co. v. McGregor, 5 Ida. 320, 51 Pac. 102; Southwestern M. B Assoc. v. Swenson, 49 Kan. 449, 30 Pac. 405; Baldinger v. Rockford Ins Co., 80 Minn. 147, 82 N. W. 1083. See the former practice in Louisiana; Weight v. Liverpool L. & G. I. Co., 30 La. Ann. 1186.

whole State.88 Like a managing agent, it means one actually engaged in doing the business of the corporation; a local attorney employed by the corporation to collect claims is not a local agent,89 nor is the cashier of a bank employed by an insurance company to collect a single claim.90

§ 275. Agent of railroad or steamboat company.

90

A general agent of a foreign railroad or steamboat company, who occupies the company's office and solicits and accepts freight and sells passenger tickets may be served,1 provided, of course, the corporation does business in the State, which requires more than the mere selling of tickets and soliciting of freight." A station agent who accepts freight and sells tickets may also be served.93 But an agent who merely solicits business, but does not sell tickets or make contracts cannot be served.94

Service of process cannot be had on the conductor 95 nor the locomotive driver of a foreign railroad,96 nor the captain of a steamboat.97

The general manager of a connecting railroad who acts as its general business agent, though holding no direct appointment as such, may be served with process against the railroad

88 Western C. P. & O. Co. v. Anderson, (Tex.) 79 S. W. 516.

89 Moore v. Freeman's Nat. Bank, 92 N. C. 590.

90 Flawley B. & W. v. Pennsylvania Casualty Co., 124 Fed. 259.

91 Denver & R. G. R. R. v. Roller, 100 Fed. 738, 49 L. R. A. 77; Fremont, E. & M. V. R. R. v. New York C. & S. L. R. R., (Neb.) 92 N. W. 131; National Bk. of Republic v. New York C. & H. R. R. R., 8 W. N. C. (Pa.) 252; Crawford v. Cunard S. S. Co., 8 W. N. C. (Pa.) 567.

92 Doty v. Michigan C. R. R., 8 Abb. Pr. (N. Y.) 427; Sheetz v. Chesapeake & O. Ry., 25 Pa. Co. Ct. 177.

93 Brown v. Chicago, M. & S. P. Ry., (N. D.) 95 N. W. 154.

94 Maxwell v. Atchison, T. & S. F. R. R., 34 Fed. 286; N. K. Fairbank

& Co. v. Cincinnati, N. O. & T. P. Ry., 54 Fed. 420; Wall v. Chesapeake & O. Ry., 95 Fed. 398.

95 Grand Trunk Ry. v. Hosmer, 106 Mich. 248, 64 N. W. 17.

96 Carroll v. New York, N. H. & H. R. R., 65 N. J. L. 124, 46 Atl. 708; Devere v. Delaware, L. & W. R. R., 60 Fed. 886, contra, interpreting the same New Jersey statute, must be regarded as erroneous.

97 Upper Miss. Tr. Co. v. Whitaker, 16 Wis. 220.

98

for which he so acts; so may an agent of the railroad system of which the defendant corporation is a part.99 But an agent in charge of a warehouse erected by several railroads, who has no power to contract for the defendant corporation and cannot be directly controlled by it individually cannot be served; nor can the agent of another railroad, in charge of a station which defendant corporation uses, but not under its control.101

§ 276. Agent of insurance company.

100

Service of process on a foreign insurance company is often regulated by special statutes. In general it may be said that one is a proper agent to receive service who either places the risk or receives and receipts for the premiums. Thus if one receives and transmits an application and delivers the policy he is an agent to receive service, though he holds no appointment from the company, either acting voluntarily 102 or being employed by a regular agent.103 So one who receives and receipts for premiums is an agent who may be served, 104 as for instance in an assessment company the person who receives the assessments.1 105 An examining physician is not a proper agent to be served. 106

§ 277. Agent of newspaper company.

A newspaper corporation often maintains in a foreign State a general agency, in charge of a man employed by it directly, who has general oversight over its interests. Such a person

98 Norton v. Atchison, T. & S. F. R. R., 61 Fed. 618.

99 Van Dresser v. Oregon Ry. & Nav. Co., 48 Fed. 202.

100 Mexican Cent. Ry. v. Pinkney, 149 U. S. 194, 37 L. ed. 699.

101 Texas & P. Ry. v. Neal, (Tex. Civ. App.) 33 S. W. 693.

102 Noble v. Mitchell, 100 Ala. 519, 14 So. 584, 25 L. R. A. 238.

103 Southern Ins. Co. v. Wolverton Hardware Co., (Tex.) 19 S. W. 615.

104 Reyer v. Odd Fellows F. A. Assoc., 157 Mass. 367, 32 N. E. 469, 34 A.

S. R. 288; Ætna L. I. Co. v. Hanna, 81 Tex. 487, 17 S. W. 35.

105 Modern Woodmen of America v. Noyes, 158 Ind. 503, 64 N. E. 21; Voorheis v. People's M. B. Soc., 86 Mich. 31, 48 N. W. 1088; State v. United States M. A. Assoc., 67 Wis. 624, 31 N. W. 229.

106 Fulton v. Commerical T. M. A. Assoc., 172 Pa. 117, 33 Atl. 324.

108

is a proper agent to serve. 107 But a mere travelling agent for the soliciting of advertisements or subscriptions is not a proper person to serve, nor is any soliciting agent or advertising agent who has no power to make contracts. 109 And on the other hand one who conducts a newspaper advertising agency for a number of newspapers, including the defendant, puts the name of defendant's paper on his door, and is described as its advertising manager, but has power to make contracts only for advertising, is not a proper person to serve.110 A person who occasionally sends news to the defendant is obviously not its agent for service of process.111

§ 278. Agent under the English practice.

113

Under the English and British Colonial practice, the service must be upon the manager of a branch office,112 and not upon a mere agent, on the one hand,1 or on the other hand upon an independent broker, though his business may be confined to acting for the corporation.114 The agent must be doing business in the colony in order to permit its courts to take jurisdiction. Thus, though by statute service could be made in New South Wales on a Queensland writ for breach of a contract made and to be performed in Queensland, it was held that the writ could not be served on a New South Wales agent of a Queensland corporation. The court said: "There may be a domicil in Sydney for the purpose of giving the Court of New South Wales jurisdiction over the defendant, but there is

107 Palmer v. Chicago Herald Co., 70 Fed. 886; Brewer v. George Knapp & Co., 82 Fed. 694; Union Associated Press v. Times-Star Co., 84 Fed. 419. 108 Boardman v. S. S. McClure Co., 123 Fed. 614.

109 Locke V.

Chicago Chronicle Co., 107 Ia. 390, 78 N. W. 49.

110 Vitolo v. Bee Publishing Co., 66 App. Div. 582, 73 N. Y. S. 273. 111 Evansville Courier Co. v. United Press, 74 Fed. 918.

112 Bowden v. Imperial M. & T. I. Co., 2 New So. Wales St. Rep. (Law) 257.

113 Bendall v. Oceanic S. N. Co., 17 New So. Wales W. N. 157.

114 The Princesse Clémentine, [1897] P. 18; Glanville v. J. B. Lippincott Co., 17 New So. Wales W. N. 74. But see Lambe v. Dewhurst & Son, 16 Quebec S. C. 326.