[§ 2994 ance agents remote from the main office,75 buying and selling agents with discretionary powers and not under direct control,76 a bookkeeper, and an agent in charge of property of large magnitude.78 The following have been held not to be managing agents: directors, 79 an assistant secretary,80 an assistant treasurer,81 an assistant cashier,82 superintendents,83 especially where in subordinate authority,84 a "business manager, 85 a bookkeeper,86 a foreman under local con passenger 75 Local freight and agent of foreign railroad corporation is a managing agent (Rev. Codes, 1899, § 5252, subd. 5). Brown v. Chicago, M. & St. P. R. Co., 12 N. D. 61, 102 Am. St. Rep. 564, 95 N. W. 153. Agent to effect insurance at a place away from main office of company is a managing agent. Bain & Brinckerhoff v. Globe Ins. Co., 9 How. Pr. (N. Y.) 448. 76 A produce buyer required to exercise judgment. Brophy v. Fairmont Creamery Co., 98 Neb. 307, 152 N. W. 557. One corporator of a foreign landselling corporation who lived in the state and acted as sales agent. Coast Land Co. v. Oregon Pacific Colonization Co., 44 Ore. 483, 75 Pac. 884. 77 Bookkeeper held on evidence a "managing agent" within garnishment statute. First Nat. Bank of Blue Hill v. Turner, 30 Neb. 80, 46 N. W. 290, but see contra, Rogers v. New Central Storage Co. (N. Y. Misc.), 131 N. Y. Supp. 591. 78 Agent in charge of property worth $3,000,000 held to be a managing agent. Russell v. Pittsburgh Life Insurance & Trust Co., 62 N. Y. Misc. 403, 115 N. Y. Supp. 950. 79 Alabama & T. Rivers R. Co. v. Burns, McKibbin & Co., 43 Ala. 169. 80 Assistant secretary of a foreign corporation. Sterett v. Denver & R. G. Ry. Co., 17 Hun (N. Y.) 316. 81 Winslow v. Staten Island Rapid Transit R. Co., 51 Hun (N. Y.) 298, 4 N. Y. Supp. 169. 82 Assistant cashier of a branch bank who signs drafts and letters but has no managerial control over the corporation is not a managing agent even where all other higher officers are absent from the branch. Karns v. State Bank & Trust Co., 31 Nev. 170, 101 Pac. 564. 83 Summons out of small cause court must be served on president, treasurer, cashier or clerk, or if they be not found, on a director or manager. Held that service on a superintendent was bad. State v. Bennett, 47 N. J. L. 275. A street railroad superintendent employed also by defendant, a steam road, to superintend operation of horse cars on its unfinished tracks is not a managing agent of the defendant. Emerson v. Auburn & O. L. R. Co., 13 Hun (N. Y.) 150. 84 Assistant superintendent" where supervised manufacturing plant is under direction of a general superintendent. Kramer v. Buffalo Union Furnace Co., 132 N. Y. App. Div. 415, 116 N. Y. Supp. 1101. Superintendent of soliciting agents employed by a higher authority. Schryver v. Metropolitan Life Ins. Co., 29 N. Y. Supp. 1092. 85 Scorpion Silver Min. Co. v. Marsano, 10 Nev. 370. 86 A bookkeeper who was not an officer, who disavowed knowledge of the whereabouts of the officers but stated that he was in charge of" the office and any business might be transacted with him, is not "manag trol and supervision,87 or other person in charge of business under immediate supervision,88 a stock transfer agent,89 an attorney in fact with discretionary powers,90 solicitors and salesmen,91 collectors,92 a telegraph operator,93 a baggage master.94 The term "local superintendent," used in one statute, has been held to include a section foreman.95 § 2995. General agent. The term "general agent," used in some of the statutes, is sufficiently similar in meaning to that of "managing agent" to call for examination of the cases last cited 96 for the analogies there afforded, but it has a less precise meaning apparently. If the general agent is an officer,97 or is any of the other persons competent by statute to be served, of course he may be served in such capacity.98 Whether the right to serve a general agent coexists with the right to serve other officers or agents prescribed by the statutes as competent for service, depends on the construction of the statutes; and a preferred person for service must be sought, if one is preferred, otherwise not.99 A local freight agent of a rail ing agent." Rogers v. New York Cent. Storage Co., 131 N. Y. Supp. 591, but see also this section, supra. 87 Simmons v. Defiance Box Co., 148 N. C. 344, 62 S. E. 435. 88 A person in charge of publication and mailing of defendant's periodical at its home office and under the eyes of its officers. Ruland v. Canfield Pub. Co., 18 N. Y. Civ. Proc. 282, 10 N. Y. Supp. 913. 89 Stock transfer agent of foreign corporation. Reddington v. Mariposa Land & Mining Co., 19 Hun (N. Y.) 405. 90 Attorney in fact to locate mining claims. Mars v. Oro Fino Min. Co., 7 S. D. 605, 65 N. W. 19. 91 Gleich v. Ontario Button Co., 129 N. Y. Supp. 407; Bucket Pump Co. v. Eagle Iron & Steel Co., 21 Ohio Cir. Ct. 229, 11 Ohio Cir. Dec. 418. Sales agent paid only by commissions is not a managing agent. N. Y. Code Civ. Proc. § 431, applied though the case being in equity in federal court was not within U. S. Rev. St. § 914 (Conformity Act). Atlas Glass 93 Telegraph operator is not a managing agent of telegraph company. Jepson v. Postal Tel. Cable Co., 22 N. Y. Civ. Proc. 434, 20 N. Y. Supp. 300. 94 Flynn v. Hudson River R. Co., 6 How. Pr. (N. Y.) 308. 95 St. Louis & S. F. R. Co. v. De Ford, 38 Kan. 299, 16 Pac. 442. 96 See $2994, supra. 97 See § 2993, supra and see also § 1746, supra. 98 As to managing agents, see § 2994, supra, and as to local agents and agents in charge or employees in general, see §§ 2996, 3000, infra. 99 Under the statutes service might be made on a general agent (Code, § 2612) though the action grew out of a local agency so that the local agent might also have been served (Code, road company has been held to be a general agent, while the term has been held to exclude an assistant manager of agencies of a foreign corporation present in another capacity,2 a "recording agent" of an insurance company,3 and a mine foreman under another general agent's control.4 § 2996. Local agent or person in charge, or other special agents. In a great many states it is enacted that "an agent in charge of" the corporation's business or its office, or its "local agent," or its "freight or passenger agent," or some other particularly described or qualified sort of agent may be served. The phraseology of the statutes is quite varied, and in addition there are further conditions on which the agent's competency depends, such as the absence of or inability to serve a superior, and the residence of the agent within the county where the service is required, and his agency in the transaction whence the cause of action arose, and perhaps others. In connection with the cases cited in this section, therefore, it is highly essential to consider carefully the statutes of the state under investigation and also those of the state whence the precedent came at the time of the decision. Only subject to them can anything of a general nature be laid down as a rule of law. As in the case of officers it is not the name "agent" but the functional character of the agent that makes him such; 5 and the statute may limit the competency of the § 2613) and the fact that the venue was in that county (Code, § 2585) does not fix the local agent as the one to be served. Centennial Mut. Life Ass'n v. Walker, 50 Iowa 75. See also § 2991, 2993, supra. 1 Toledo, W. & W. Ry. Co. v. Owen, 43 Ind. 405. 2 One who was "assistant manager of agencies" in the home office in another state and who when served was appearing as attorney at law in an action in Iowa where he was not an agent for any other purpose was not competent to be served. Philp v. Covenant Mut. Ben. Ass'n, 62 Iowa 633, 17 N. W. 903. 3 A "recording agent" of the company who merely wrote out policies and attended to such as he issued and looked out for the company's interests in respect to such policies is not an "agent employed in the general management of the business of the company" (Code, § 2612). State Ins. Co. v. Waterhouse, 78 Iowa 674, 43 N. W. 611. 4 A mine foreman of a domestic corporation under direction of the general agent (Code Civ. Proc. § 40). Great West. Min. Co. v. Woodmas of Alston Min. Co., 12 Colo. 46, 13 Am. St. Rep. 204, 20 Pac. 771. 5 A chief clerk' may be served as an agent though a superior who bore the titular name "agent" was also in the same office. Louisville & N. R. Co. v. Mitchell, 6 Ga. App. 390, 64 S. E. 1134. Local or branch secretary who receives assessments and delivers receipts is an agent within the state. Southwestern Mut. Ben. Ass'n V. Swenson, 49 Kan. 449, 30 Pac. 405. agency to service in actions based on intrastate property or transactions, or on a specified subject-matter within the scope of the agency. Unless the statute bears such an interpretation it is not requisite that the object of the agency shall have been accomplished, but only that authority shall have existed of the described kind in the person served. The agent must bear that relation to the corporation which is the intended defendant, rather than to a receiver,9 or some wholly independent principal.10 The existence of a designated agent does not necessarily exclude service on other agents 11 and even if "Scalpers" or ticket brokers furnished tickets by the railroad to be marketed would not be "acting ticket agents." Dictum in Hillary v. Great Northern Ry. Co., 64 Minn. 361, 32 L. R. A. 448, 67 N. W. 80. Secretary of local lodge who collects and remits money to grand lodge is an agent. Hildebrand V. United Artisans, 46 Ore. 134, 114 Am. St. Rep. 852, 79 Pac. 347. Evidence held sufficient to show agency. People v. Tilden, 121 N. Y. App. Div. 352, 106 N. Y. Supp. 247. Purser and wharfinger of foreign navigation company at a wharf in a county where its boats touched and took passengers and cargo, are both agents. Sievers v. Dallas, P. & A. Nav. Co., 24 Wash. 302, 64 Pac. 539. See also § 2993, supra, as to officers. 6 Olson v. Buffalo Hump Min. Co., 130 Fed. 1017, explaining the Washington statute which qualifies an agent of a foreign corporation for service in any action" pertaining to property or transactions "within the state." But see Smith v. Empire State-Idaho Mining & Development Co., 127 Fed. 462, which further explained that an officer's authority was not so restricted since by another statute he could be served in a civil action against a foreign corporation doing business in the state." 7 Toledo, W. & W. R. Co. v. Owen, 43 Ind. 405, holding that the killing of an animal was not ascribable to the "business of" a local railroad agent. See also this section, infra. 8 Commercial Mut. Acc. Co. V. Davis, 213 U. S. 245, 53 L. Ed. 782. 9 A statute (Act Feb. 26, 1887) providing for service on any depot agent or person in charge of any depot in any suit against the person or corporation using or operating such road, "whenever any railroad corporation shall permit its railroad to be used or operated by any other person or corporation" does not apply to receivership. Ex parte Charles, 106 Ala. 203, 18 So. 73. * * * 10 See § 2991, supra. The agent of one corporation cannot be served to bring in another though the two were contractually related. International Text-Book Co. v. Heartt, 136 Fed. 129. 11 Service on an agent in the county where suit is brought suffices though there be also a designated agent for service. New South Brewing & Ice Co. v. Price, 21 Ky. L. Rep. 11, 50 S. W. 963. Under the Manufacturing Corporations Act providing for one designated business office within the state (section 20) and for service on the agent "in charge of any business office'' (section 30), no agent in charge except the one in charge of the designated office can be served. Toledo Ice Co. v. Munger, 124 Mich. 4, 82 N. W. 663. See also Goodrich v. Hackley-Phelps-Bonnell Co., 141 Mich. it did, the failure to appoint one leaves it open to serve agents, subject to the absence of superior officers.12 The residence 13 or "situation" or place 14 of the agent with re 343, 104 N. W. 669, 12 Det. L. N. 458, explained in Moinet v. Burnham, Stoepel & Co., 143 Mich. 489, 106 N. W. 1126, 13 Det. L. N. 38. 12 Service on the agent in charge of the office, the president or chief officer not being found, is good against a foreign insurance company which has not designated the insurance commissioner as provided by statute. Fraternal Bankers of America V. Wire, 150 Mo. App. 89, 129 S. W. 765. 13 Resident agent in county where action is brought may be served. Adams Exp. Co. v. Crenshaw, 78 Ky. 136. Under Code, c. 52, § 20, a railroad company may be served through a "depot or station agent in the employment of the company residing in the county or township wherein the action is brought. Douglass v. Kanawha & M. R. Co., 44 W. Va. 267, 28 S. E. 705. Resident freight and passenger agent in county where tort action is brought before justice may be served. (Code, c. 50, § 34), there being no other officer found in the county. Harrow v. Ohio River R. Co., 38 W. Va. 711, 18 S. E. 926. Shannon's Code, § 4542 providing for service on an agent "in all actions in said county growing out of the business or connected with the principal" means a resident agent. A traveling agent cannot be served and sued where he is found. Mark Twain Lumber Co. v. Lieberman, 106 Tenn. 153, 61 S. W. 70. To same effect, see Chicago & A. R. Co. v. Walker, 77 Tenn. (9 Lea) 475. Residence of agent as place for service, see also § 3007, infra. 14 Under a statute providing that where a corporation operates a rail road summons may be served on its passenger or freight agent stationed at or nearest to the county seat of the county where the action is instituted, the term "passenger or freight agent" will be construed as referring to one employed by the corporation at a specified place. Louisville & N. R. Co. v. Chestnut & Co., 115 Ky. 43, 24 Ky. L. Rep. 1846, 72 S. W. 351. A merchant who incidentally quoted freight rates and sold tickets for the railroad corporation is a "passenger and freight agent stationed at or nearest to the county seat" though he was not located at a regular station and the line did not run through his town. Louisville, H. & St. L. R. Co. v. Com., 104 Ky. 35, 20 Ky. L. Rep. 371, 46 S. W. 207. The defendant's passenger or freight agent at or nearest to the county seat of the county in which the action is brought need not be an agent within that county. Nashville, C. & St. L. R. Co. v. Carrico, 95 Ky. 489, 26 S. W. 177; Nashville, C. & St. L. R. Co. v. Carrico, 14 Ky. L. Rep. (abstract) 431. Soliciting insurance agent traveling about and appointing and instructing subagents is not an agent "situated" in the county where he resides when at home. Security Mut. Life Ins. Co. v. Ress, 76 Neb. 141, 106 N. W. 1037. In Ohio service of summons on a regular ticket agent of a railroad corporation defendant was held good. That he was not employed on the line of road did not bar the fact of his agency. Woodcock v. Baltimore & O. R. Co., 107 Fed. 767. A traveling passenger solicitor with nothing fixed in the way of an office except an address is not such an agent |