The opinion
Bejach, J.
(dissenting).
I respectfully dissent from the majority opinion in this case.
In Chicago & Alton Railroad Co. v. Walker, 77 Tenn. 475 , the Supreme Court held that a traveling commercial agent of the Chicago & Alton Railroad Co. was not such an agent as to authorize service of process on him, where the Railroad Company was not doing business in Tennessee, even though the litigation there involved grew out of a contract made with that particular agent. Process had been served in that case under authority of the statute now carried forward into section 20-218 T. C. A., which is the one relied on by plaintiffs in the instant case. To meet the defect involved in the Walker case, as was held in Telephone Co. v. Turner, 88 Tenn. 265, 266, 268 , 12 S. W. 544 , chapter 226 Acts of 1887, was enacted,—which statute is now carried forward into section 20-220 T. C. A., but that statute applies only where the transaction involved, or at least a part of same occurs in Tennessee, or with the agent on whom process is served. In the instant case, certainly none of the transactions involved were conducted in any manner, directly or indirectly, with the commercial agent on whom process was served, nor were they in any other manner connected with Tennessee. In order to bring the case within the provisions of section 20-218 T. C. A., and distinguish it from the facts involved in the case of Chicago & Alton Railroad Co. v. Walker, reliance is placed alone on the *360 circumstance that, in the instant case, the agent served had a permanent office; whereas the agent served in the Walker case was merely a traveling agent. In spite of maintaining a permanent office, however, the agent served in the instant case was merely a commercial agent, whose duties and authority were substantially identical with those of the agent served in the Walker ease. In my opinion, the fatal defect in the instant case is that the defendant railroad companies have neither qualified to do business in Tennessee, nor are they doing any part of their business in Tennessee. Solicitation, in Tennessee, of business to be done in other States is not doing business in Tennessee. This principle has been reiterated by our Supreme Court in the recent case of Tucker v. International Salt Co., 209 Tenn. 95 , 349 S. W. (2d) 541 . In that case, as in the case of Chicago & Alton R. R. Co. v. Walker, the agent involved was a traveling agent. To the same effect, see, also, the even more recent decision of this court, Eastern Section, in Fisher v. Trion, Inc., 49 Tenn. App. 182 , 353 S. W. (2d) 406 , in which case certiorari was denied by the Supreme Court December 8, 1961.
In my opinion, in order to authorize service of process on a foreign corporation, under section 20-218 T. C. A., the test should be, not whether the agent in question maintains a permanent office in Tennessee, but, whether the company for whom he maintains such office is doing business in Tennessee. My conclusion is in accord with the ruling of the Tennessee Supreme Court in Johnson Freight Lines, Inc. v. Davis, 170 Tenn. 177, 182 , 93 S. W. (2d) 637, 638 . In that case, the Supreme Court in an opinion written by Mr. Justice DeHaven, defined the *361 term “officer or agency” as used in section 20-218 T. C. A., as follows:
“Defendant [has] no ‘office or agency’ in Hamilton County within the meaning of Code, sec. 8669 (now sec. 20-218 T. C. A.). It is only when a corporation, business trust, or any person has an office or agency, or resident director, in any county other than that in which the chief officer or principal resides, that service of process ‘may be made on any agent or clerk employed therein. ’ Except in the case of a resident director of a corporation, it is apparent that in order to have valid service of process on an agent or clerk there must exist in such county ‘an office or agency’ in which said agent or clerk is employed. The word ‘agency,’ just as the word ‘office,’ is employed in the sense that it designates a place at which the business of the company, or individual, is transacted by an agent” (Emphasis added.) Johnson Freight Lines, Inc. v. Davis, 170 Tenn. 181 -182.
The limitation on the terms “office or agency” as set out in the above quoted language of the Supreme Court of Tennessee is in harmony with the language of the Supreme Court of the United States in the case of Green v. Chicago, B. & Q. R. Co., 205 U. S. 530 , 27 S. Ct. 595 , 51 L. Ed. 916 , in which case the following language was used:
“But to obtain jurisdiction there must be service, and the service was upon the corporation in the eastern district of Pennsylvania. Its validity depends upon whether the corporation was doing business in *362 that district in such a manner and to snch an extent as to warrant the inference that, through its agents, it was present there.” Emphasis added.)
In my opinion, neither the Atchison, Topeka & Santa Fe Railway Co., nor the Gulf, Colorado & Santa Fe Railway Co. were, through the commercial agent, Michael M. Benya, on whom process was served in the instant case, present in Shelby County, Tennessee, when he was served with process. It is, therefore, my opinion that the plea in abatement filed in this cause should have been sustained, and the present suit dismissed. For that reason, I dissent from the majority opinion which holds otherwise in this cause.