United States District Court, Northern District of Illinois, E.D
October 7, 1957
LEO J. FRANKLIN, PLAINTIFF,
TOMLINSON FLEET CORP., DEFENDANT.
The opinion of the court was delivered by: Sullivan, Chief Judge.
This is a complaint under the Merchant Marine Act of 1920 to
recover damages allegedly suffered by a seaman while in the
course of his duties as an employee of defendant. The accident
which caused the injuries occurred when the boat on which
plaintiff was employed was "traveling the navigable waters
bordering upon the State of Illinois" (Complaint, par. 4). The
defendant is a Delaware corporation, and service of process was
made on the Secretary of State of Illinois in accordance with the
Illinois Non-Resident Water Craft Act (Ch. 110, Ill.Rev.Stat.
1951, Sec. 263a et seq.).
Defendant has moved to quash service of summons, asserting
inter alia that this statute is unconstitutional. This contention
must be overruled. The provision for service of summons on the
Secretary of State in the case of non-residents using the
navigable waters of the State closely resembles the similar
provision for service of nonresident motorists; and the latter
statute has been upheld (Jones v. Pebler, 1939, 371 Ill. 309,
20 N.E.2d 592, 127 A.L.R. 451). There is no doubt that the state's
power to control the use of its navigable waters is equal to its
power to control its highways (Tardiff v. Bank Line, Ltd.,
D.C.E.D.La. 1954, 127 F. Supp. 945). There is no basis in reason
or authority on which this court could find the Illinois statute
Defendant has raised various other objections to the service of
process which it has failed to substantiate by authority or
argument, and which are without merit; nothing would be gained by
reciting them here.
Defendant also asks that plaintiff be required to elect between
a claim under the Jones Act and a claim under the Admiralty law
for unseaworthiness. Such an election is not required (German v.
Carnegie, 3 Cir., 1946, 156 F.2d 977).
Defendant further contends that Title 46 U.S.C.A. § 688
precludes the jurisdiction of this court. That section of the
Jones Act provides that "Jurisdiction in such actions shall be
under the court of the district in which the defendant employer
resides or in which his principal office is located". In an
unverified motion signed by counsel rather than by any official
of the defendant corporation, it is asserted that defendant is
not a resident of Illinois and does not have its principal office
This objection is not necessarily fatal, since it has been held
that "residence" includes the place in which the defendant is
doing business (Phillips v. Pope & Talbot, Inc., D.C.S.D.N Y
1952, 102 F. Supp. 51; Vol. 3 Cyclopedia of Federal Procedure,
Page 97 et seq.). In any event, there is no showing at present in
the record on which a finding on this point can be based. On the
present state of the pleadings, the contention must be overruled.
Defendant's motion to quash service of summons and to strike
counts 1 and 2 of the complaint for failure to elect are
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