Opinion · Supreme Court of the United States

Olberding v. Illinois Central Railroad

346 U.S. 338

Type
Opinion
Court
Supreme Court of the United States
Jurisdiction
Federal
Date
1953-11-09
Topic
general

How later courts describe this case

  • holding that the plaintiff, by bringing the suit in a district other than that authorized by the statute, relinquished his right to object to the venue
  • noting that the plaintiff relinquishes his right to object to venue by bringing his lawsuit in a particular district
  • deciding whether individual defendant had impliedly consented to venue and distinguishing Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165, 60 S.Ct. 153, 84 L.Ed. 167 (1939)
  • deciding whether individual defendant had impliedly consented to venue and distinguishing Neirbo Co. v. Bethlehem Shipbuilding Corp., 308 U.S. 165 (1939)
  • noting that the plaintiff relinquishes his right to object to venue by bringing his lawsuit in 10526 GORDON v. VIRTUMUNDO, INC. a particular district
  • noting that venue restriction "is not a qualification upon the power of the court to adjudicate, but a limitation designed for the convenience of litigants, and, as such, may be waived by them"
  • noting that venue restriction “is not a qualification upon the power of the court to adjudi cate, but a limitation designed for the convenience of litigants, and, as such, may be waived by them”
  • applying 28 U.S.C. § 1391(a) prior to the 1966 amendment

Citator

UpLaw has not yet analyzed Olberding v. Illinois Central Railroad. The absence of a flag is not a finding that it is good law.

Authority status
pending
Cited by
266 opinions

Headnotes

  1. Civil Procedure — Venue Under 28 U.S.C. § 1391(a), a civil action in which jurisdiction is founded solely on diversity of citizenship may be brought only in the judicial district where all plaintiffs or all defendants reside. 346 U.S. at 339-340
  2. Civil Procedure — Waiver The venue requirement of 28 U.S.C. § 1391(a) is not a qualification upon the court's power to adjudicate but a limitation designed for the convenience of litigants, and as such it may be waived by them. A plaintiff who brings suit in a district other than that authorized by the statute relinquishes his right to object to venue, but unless the defendant has also consented to be sued in that district, the defendant retains the right to invoke the protection the statute affords him. 346 U.S. at 340
  3. Civil Procedure — Venue The federal venue requirement is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a liberal construction. 346 U.S. at 340
  4. Civil Procedure — Venue A nonresident motorist does not impliedly consent to be sued in a federal court in a state simply by driving his motor vehicle on that state's highways, and therefore does not waive his rights under 28 U.S.C. § 1391(a). 346 U.S. at 340-341
  5. Constitutional Law — Due Process Jurisdiction over nonresident motorists under state nonresident motorist statutes does not rest on consent; the defendant may protest his unwillingness to be sued and it avails him not. The liability rests on the inroad the automobile has made on the decision of Pennoyer v. Neff, and the requirements of due process are met where the nonresident motorist is afforded an opportunity to defend himself. 346 U.S. at 340-341 (citing Hess v. Pawloski, 274 U.S. 352)
  6. Civil Procedure — Venue The fact that a nonresident motorist who comes into a state can, consistent with the Due Process Clause of the Fourteenth Amendment, be subjected to suit in the appropriate state court of that state has nothing whatever to do with his rights under 28 U.S.C. § 1391(a). 346 U.S. at 341
  7. Civil Procedure — Venue A corporation's designation of an agent in a state upon whom a summons may be served within the state, as part of the bargain by which the corporation enjoys the business freedom of that state, constitutes actual consent to be sued in that state, extending to all courts sitting in the state, both federal and state. The same doctrine applies to an individual defendant where the state may validly require the designation of an agent for service of process as a condition of carrying on activities within its borders, and such designation has in fact been made. Where the state statute neither requires such designation nor has one been made, that doctrine has no applicability. 346 U.S. at 341-342 (distinguishing Neirbo Co. v. Bethlehem Corp., 308 U.S. 165)
OLBERDINGv. ILLINOIS CENTRAL R. CO.,346 U.S. 338(1953)
74 S.Ct. 83
OLBERDING, DOING BUSINESS AS VESS TRANSFER CO., ET AL.v.
ILLINOIS CENTRAL RAILROAD CO., INC.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT.
No. 27.
Argued October 15, 1953.
Decided November 9, 1953.
Basing jurisdiction solely on diversity of citizenship, an Illinois railroad corporation brought suit in a federal district court in Kentucky against an Indiana owner of a truck which, while on temporary business in Kentucky, collided with an overpass of the railroad, causing a derailment. The defendant was apprised of the action through service of process on the Secretary of State of Kentucky, in accordance with a Kentucky statute. The Kentucky statute did not require the designation of an agent for the service of process, and the defendant had made no such designation.Held:Under28 U.S.C. § 1391(a), the defendant's motion that the case be dismissed on the ground of improper venue should have been granted. Pp. 339-342.
(a) The defendant did not impliedly consent to be sued in a federal court in Kentucky simply by driving his motor vehicle on the highways of that State. Pp. 340-341.
(b) The fact that a nonresident motorist who comes into Kentucky can, consistent with the Due Process Clause of the Fourteenth Amendment, be subjected to suit in the appropriate Kentucky state court is irrelevant to his rights under28 U.S.C. § 1391(a). P. 341.
(c)Neirbo Co. v.Bethlehem Corp.,308 U.S. 165, distinguished. Pp. 341-342.
201 F.2d 582, reversed.
In a suit in a federal district court based solely on
diversity of citizenship, the defendant's motion that the
case be dismissed on the ground of improper venue was
overruled and there was a verdict for the plaintiff. The
Court of Appeals affirmed.201 F.2d 582. This Court
granted certiorari.345 U.S. 950.Reversed, p. 342.
William L. Mitchellargued the cause for petitioners. With him on the brief wereWilliam C. WelbornandMilford M. Miller.Page 339James G. Wheelerargued the cause for respondent. With him on the brief wereJoseph H. Wright, Chas. A.Helsell, John W. FreelsandThomas J. Marshall, Jr.
MR. JUSTICE FRANKFURTER delivered the opinion of the Court.
For present purposes the facts may be briefly stated. The railroad brought suit in the United States District Court for the Western District of Kentucky against Olberding, the owner of a truck, which, while on temporary business in Kentucky, collided with an overpass of the railroad, causing a subsequent derailment. Jurisdiction was based on diversity of citizenship, plaintiff being an Illinois corporation and Olberding a citizen of Indiana. Olberding was apprised of the action through service of process on the Secretary of State in Frankfort, Kentucky, according to the Kentucky Non-resident Motorist Statute.fn*He entered a special appearance and moved that the case be dismissed on the ground of improper venue. The motion was overruled and the case went to trial, resulting in a verdict for the plaintiff. The Court of Appeals for the Sixth Circuit affirmed,201 F.2d 582. Its ruling on venue, in the situation here presented, is in direct conflict with that of the First Circuit inMartinPage 340v.Fischbach Trucking Co.,183 F.2d 53, with which the Third Circuit has recently agreed,McCoyv.Siler,205 F.2d 498. To resolve the conflict, we granted certiorari.345 U.S. 950.

This is a horse soon curried. Congress, in conferring jurisdiction on the district courts in cases based solely on diversity of citizenship, has been explicit to confine such suits to "the judicial district where all plaintiffs or all defendants reside."28 U.S.C. § 1391(a). This is not a qualification upon the power of the court to adjudicate, but a limitation designed for the convenience of litigants, and, as such, may be waived by them. The plaintiff, by bringing the suit in a district other than that authorized by the statute, relinquished his right to object to the venue. But unless the defendant has also consented to be sued in that district, he has a right to invoke the protection which Congress has afforded him. The requirement of venue is specific and unambiguous; it is not one of those vague principles which, in the interest of some overriding policy, is to be given a "liberal" construction.

It is not claimed that either the corporate plaintiff or the individual defendant here was a "resident" of Kentucky. The sole reason why the plaintiff was allowed to bring this action in the federal court of Kentucky was that a consent to be sued in that state was attributed to the defendant. And this attribution was then made the basis of a waiver of his rights under the federal venue provision. Concededly the defendant did not in fact consent. He impliedly consented, so the argument runs, to be sued in the federal court of Kentucky simply by driving his automobile on the highways of Kentucky, which has the familiar statute holding non-resident motorists amenable to suit for accidents caused by their negligent operations within the State.

It is true that in order to ease the process by which new decisions are fitted into pre-existing modes of analysisPage 341there has been some fictive talk to the effect that the reason why a non-resident can be subjected to a state's jurisdiction is that the non-resident has "impliedly" consented to be sued there. In point of fact, however, jurisdiction in these cases does not rest on consent at all. See Scott, Jurisdiction over Nonresident Motorists, 39 Harv. L. Rev. 563. The defendant may protest to high heaven his unwillingness to be sued and it avails him not. The liability rests on the inroad which the automobile has made on the decision ofPennoyerv.Neff,95 U.S. 714, as it has on so many aspects of our social scene. The potentialities of damage by a motorist, in a population as mobile as ours, are such that those whom he injures must have opportunities of redress against him provided only that he is afforded an opportunity to defend himself. We have held that this is a fair rule of law as between a resident injured party (for whose protection these statutes are primarily intended) and a non-resident motorist, and that the requirements of due process are therefore met.Hessv.Pawloski,274 U.S. 352. But to conclude from this holding that the motorist, who never consented to anything and whose consent is altogether immaterial, has actually agreed to be sued and has thus waived his federal venue rights is surely to move in the world of Alice in Wonderland. The fact that a non-resident motorist who comes into Kentucky can, consistent with the Due Process Clause of the Fourteenth Amendment, be subjected to suit in the appropriate Kentucky state court has nothing whatever to do with his rights under28 U.S.C. § 1391(a).

This conclusion is entirely loyal to the decision and reasoning ofNeirbo Co. v.Bethlehem Corp.,308 U.S. 165. There the defendant, a Delaware corporation, was sued by a non-resident of New York in the United States District Court for the Southern District of New York, and we found the venue requirements of what is now28 U.S.C. § 1391(a) satisfied because Bethlehem had designatedPage 342an agent in New York "upon whom a summons may be served within the State of New York."308 U.S., at 175. We held that this constituted an "actual consent" to be sued in New York, not the less so because it was "part of the bargain by which Bethlehem enjoys the business freedom of the State of New York."Ibid. We further held, followingEx parte Schollenberger,96 U.S. 369,377, that this consent extended to all courts sitting in New York, both federal and state. Of course this doctrine would equally apply to an individual defendant in situations where a state may validly require the designation of an agent for service of process as a condition of carrying on activities within its borders, and such designation has in fact been made. SeeKanev.New Jersey,242 U.S. 160. But here no such designation was required or made, and hence theNeirbocase has no applicability.

The judgment isReversed.

MR. JUSTICE DOUGLAS concurs in the result.
MR. JUSTICE REED, with whom MR. JUSTICE MINTON joins, dissenting.
The unfortunate effect of this decision on federal venue, its uniformity and availability, in so important a field as torts by out-of-state motorists, causes me to dissent from the views of the Court. UnderNeirbo Co. v.BethlehemCorp.,308 U.S. 165, a different doctrine of venue would be applied to motor torts committed by foreign corporations doing business in a state than is applied to an individual motorist driving his own car through a state. From the opinion I would assume that a corporation not doing business in a state but causing a car to be driven therein would be immune from suits for torts in the federal courts in that state. The decision bars a nonresident injured party from seeking damages, on allegation ofPage 343diversity, from a nonresident motor operator or owner in the United States District Court having jurisdiction over the place of the accident in which the motor vehicle is involved.

No question is or can now be raised against the constitutionality of the Kentucky statute to secure the presence of an out-of-state motorist in the state courts to respond to damages. It is the form generally approved for protection against out-of-state wrongdoers by motor operation, and is not subject to attack for lack of due process.1ThePage 344single issue decided by the Court is that such process does not waive venue under28 U.S.C. § 1391(a):
"A civil action wherein jurisdiction is founded only on diversity of citizenship may, except as otherwise provided by law, be brought only in the judicial district where all plaintiffs or all defendants reside."


The provision was substantially the same when theNeirbocase was decided. The clause then read:
". . . but where the jurisdiction is founded only on the fact that the action is between citizens of different States, suits shall be brought only in the district of the residence of either the plaintiff or the defendant." 28 U.S.C. (1946 ed.) § 112.


InNeirbowe held that since the foreign corporation had consented to be sued in the courts of the state, the consent extended to the federal courts sitting in the state.308 U.S., at 171,175. The same reasoning that led to the subjection of foreign corporations to federal litigation in theNeirbocase leads me to the conclusion that the out-of-state motorist should likewise be so held. The motor car has lengthened the radius of the individual's activities. We have upheld the constitutional power of the states to compel redress of wrongs, through the use of the automobile, at the place of their happening. It is done through the consent of the party benefiting from his privilege to use the highways of the state. The District Courts have consistently ruled that the appointment of an agent for service of process by driving on state highways is a waiver of federal venue.2Page 345

I see no difference of substance between the signing of a paper under the New York statute upon whichNeirbois based and the acceptance, by action in driving a motor car, of the privilege of using state highways under the Kentucky statute. In each case there was no federal venue except by waiver and consent. Both the Bethlehem Corporation and this out-of-state motorist, in my opinion, waived objection to federal venue. TheHesscase determined that the difference between the "formal and implied appointment" of an agent for service "is not substantial" under the Due Process Clause.274 U.S., at 357.3TheNeirbocase held that consent to service on an agent for service of process waived objection to federal venue. The same rule if applied to this situation would achieve a like desirable result, trial at the logical place, the location of the incident that gives rise to the cause of action.

I would affirm the judgment.Page 346
  1. Page 339 Ky. Rev. Stat., 1953, §§ 188.020-188.030. The Kentucky statute, like the one upheld inHessv.Pawloski,274 U.S. 352, in substance provides that a non-resident motorist who operates his automobile on the state's highways makes the Secretary of State his agent for service of process in any civil action arising out of such operation. There is also set up a procedure for serving the summons on the Secretary of State, who in turn is to notify the non-resident defendant by registered mail.

    On the other hand, the statute under consideration inKanev.New Jersey,242 U.S. 160, specifically required the non-resident motorist to register his vehicle annually and formally to designate the Secretary of State an agent upon whom process might be served. Penalties were provided for use of the state's roads without complying with these requirements. ↩
  2. Page 343Hessv.Pawloski,274 U.S. 352. The statute there involved so far as pertinent read:

    "The acceptance by a non-resident of the rights and privileges conferred by section three or four, as evidenced by his operating a motor vehicle thereunder, or the operation by a non-resident of a motor vehicle on a public way in the commonwealth other than under said sections, shall be deemed equivalent to an appointment by such non-resident of the registrar or his successor in office, to be his true and lawful attorney upon whom may be served all lawful processes in any action or proceeding against him, growing out of any accident or collision in which said non-resident may be involved while operating a motor vehicle on such a way, and said acceptance or operation shall be a signification of his agreement that any such process against him which is so served shall be of the same legal force and validity as if served on him personally." Mass. Acts 1923, c. 431, § 2.

    InNeirbo Co. v.Bethlehem Corp.,308 U.S. 165, the provision was for a designation by the corporation "of the secretary of state as its agent upon whom all process in any action or proceedings against it may be served within this state." McKinney's N.Y. Laws, Gen. Corp. Law, § 210.

    The Kentucky statute in this case reads:

    "Any nonresident operator or owner of any motor vehicle who accepts the privilege extended by the laws of this state to nonresidents to operate motor vehicles or have them operated within this state shall, by such acceptance and by the operation of such motor vehicle within this state, make the Secretary of State his agent for the service of process in any civil action instituted in the courts of this state against the operator or owner arising out of or by reason of any accident or collision or damage occurring within this state in which the motor vehicle is involved." Ky. Rev. Stat., 1953, § 188.020. ↩
  3. Page 344Falterv.Southwest Wheel Co.,109 F. Supp. 556;Archambeauv.Emerson,108 F. Supp. 28;Jacobsonv.Schuman,105 F. Supp. 483;Kostamov.Brorby,95 F. Supp. 806;Burnettv.Swenson,95 F. Supp. 524;Thurmanv.Consolidated School Dist.,94 F. Supp. 616;Ursov.Scales,90 F. Supp. 653;Steelev.Dennis,62 F. Supp. 73;Kruegerv.Hider,48 F. Supp. 708. Contra:Watersv.Plyborn,93 F. Supp. 651. ↩
  4. Page 345 Cf.Knott Corp. v.Furman,163 F.2d 199. In this case plaintiff, a citizen of Massachusetts, sued the corporation in the United States District Court for the Eastern District of Virginia, for injuries received during a hotel fire. The defendant, a Delaware corporation, operated the hotel on a United States military reservation. No written appointment of any state officer as agent for service of process had been filed by the corporation. Venue was challenged and the Fourth Circuit ruled that the corporation had waived the federal venue provisions under a statute which read:

    "3. If any such company shall do business in this State without having appointed the Secretary of the Commonwealth its true and lawful attorney as required herein, it shall by doing such business in the State of Virginia be deemed to have thereby appointed the Secretary of the Commonwealth its true and lawful attorney for the purposes hereinafter set forth." Va. Code, Supp. 1946, § 3846a.

    The language of this statute is certainly analogous to that of the Kentucky statute, n. 1,supra. ↩