Collar v. Peninsular Gas Co.

• Decision Date: 12 November 1956
• Docket Number: No. 1,No. 45137,45137,1
• Citation: 295 S.W.2d 88
• Parties: Louis H. COLLAR, Appellant, v. PENINSULAR GAS COMPANY, a Corporation, Respondent
• Court: Missouri Supreme Court

Page 88

295 S.W.2d 88

Louis H. COLLAR, Appellant, v. PENINSULAR GAS COMPANY, a Corporation, Respondent.

No. 45137.

Supreme Court of Missouri, Division No. 1.

Nov. 12, 1956.

Ben W. Swofford, Robert A. Schroeder, John C. Milholland, Kansas City, Swofford, Schroeder & Shankland, Kansas City, of counsel, for appellant Louis H. Collar.

Lawrence R. Brown, Michael J. Bogutski, Kansas City, Stinson, Mag, Thomson, McEvers & Fizzell, Kansas City, of counsel, for respondent, Peninsular Gas Co.

HOLMAN, Commissioner.

Louis H. Collar, plaintiff-appellant, instituted this action against the defendant-respondent, Peninsular Gas Company, seeking to recover $3,000 damages for the malicious prosecution of a civil action. The defendant appeared specially and filed its motion to quash the summons and the return of service thereon and to dismiss the action for want of jurisdiction of the court thereof. Plaintiff has appealed from the action of the trial court in sustaining said motion to quash. We have jurisdiction since the appeal presents a constitutional question involving due process under the Fourteenth Amendment to the Constitution of the United States and a related question arising under Section 14, Art. I, Constitution of Missouri 1945, V.A.M.S. Wooster v. Trimont Mfg. Co., 356 Mo. 682, 203 S.W.2d 411.

Various affidavits, exhibits, and admissions were offered in support of the contentions of each party on the issues raised by the motion to quash. There is no real dispute concerning the facts shown by such proof. We will state such facts as appear necessary for a determination of the issues presented.

The defendant is a corporation domiciled in the State of Michigan and is engaged solely in the business of supplying and distributing propane and butane gas in the villages of Laurium, Calumet, and Lake Linden, Michigan. It had never maintained any business office or engaged in business in the State of Missouri, nor was it registered for that purpose as a foreign corporation authorized to do business in this state. Plaintiff resided in Kansas, but engaged in business in Jackson County, Missouri, under the name of Liquified Petroleum Gas Underwriters Agency. In the late summer of 1948, plaintiff offered to write and obtain for defendant general public liability insurance to protect defendant in the operation of its business in Michigan. The offer was accepted and a binder was issued. On September 29, 1948, a fire and explosion occurred which resulted in a number of claims for personal injuries and property damage being made against defendant and it accordingly made claim with its insurer, Lloyd's of London, for protection from said claims. For some reason the insurer denied liability on the claims. Apparently the defendant then proceeded to investigate, adjust, and settle the various claims, expending in excess of $26,000 in so doing. Thereafter, defendant filed suit against the insurer in a United States District Court in Kentucky and subsequently that suit was compromised by Lloyd's of London paying to the Gas Company one half of the amount it had paid out as a result of said claims. Thereafter defendant filed a suit in the circuit court of Jackson County against the plaintiff herein seeking to recover from him the remaining one half it had expended in the adjustment and settlement of the aforementioned claims, together with certain attorney fees and other expenses, all of which totaled $18,590.33. That suit was tried in the early part of May, 1954, and was terminated on May 7 by a jury verdict for defendant therein (plaintiff in the instant case). L. L. Lawrence, president of the Gas Company, attended the trial of that case and was a guest at the Phillips Hotel in Kansas City, Missouri. The instant case was filed on May 7, 1954, which was the same day that the jury returned its verdict in the aforementioned case.

As previously indicated, plaintiff in this case seeks damages resulting from the alleged malicious filing and prosecution of the prior suit. The summons and copy of the petition in the case before us were served on L. L. Lawrence at his room in the Phillips Hotel shortly after the conclusion of the aforesaid trial and apparently just prior to the time he checked out of the hotel.

The pertinent portions of our applicable process statute, Section 506.150(3) RSMo 1949, V.A.M.S., provide, in part, that 'Service shall be made * * * upon a * * * foreign corporation * * * by delivering a copy of the summons and of the petition to an officer * * *.' At the outset, plaintiff contends that since the sheriff's return was regular on its face and showed that the summons and petition were personally served on L. L. Lawrence, president of the defendant corporation, within the territorial limits of Jackson County, Missouri, this satisfied the requirements of the foregoing process statute and hence the service was valid and the court erred in quashing the same. The difficulty with this argument is that it does no accord proper significance to the fact that the defendant is a foreign corporation. The mere fact that service is had in this state upon an officer of a foreign corporation is not sufficient to confer our court with jurisdiction to render a personal judgment against the corporation. In addition to the manual service of process, it is essential to its validity and the acquisition of jurisdiction that the foreign corporation be doing business within this state. State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge, 331 Mo. 1015, 56 S.W.2d 28, 85 A.L.R. 1378; St. Louis Wire-Mill Co. v. Consolidated Barb-Wire Co., C.C., 32 F. 802; James-Dickinson Farm Mortgage Co. v. Harry, 273 U.S. 119, 47 S.Ct. 308, 71 L.Ed. 569. And the question as to whether such a corporation is doing business in this state may be raised and determined by a motion to quash. State ex rel. Mills Automatic Merchandising Corp. v. Hogan, 232 Mo.App. 291, 103 S.W.2d 495.

It becomes apparent, therefore, that we must determine upon the foregoing facts, whether defendant was doing business in this state so as to become amenable to personal service which would support the rendition of a general judgment against it. At this point it may be well to state that this question is 'not one of local law or of statutory construction,' but is 'one of due process of law, under the Constitution of the United States.' Hall v. Wilder Mfg. Co., 316 Mo. 812, 293 S.W. 760, 762, 52 A.L.R. 723. 'While no all-embracing rule has been laid down as to what constitutes doing business by a foreign corporation so as to make it amenable to personal service of process within a given jurisdiction and a solution of the question depends upon the facts of the particular case, yet the general rule is recognized that to constitute 'doing business' the foreign corporation must have entered the state and engaged there in carrying on and transacting, through its agents, the ordinary business in which it is engaged * * *.' State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge, supra, 56 S.W.2d 28, 38.

'Indeed, the reported cases show that a foreign corporation may go so far as to engage in transacting a great variety of forms of business within a state without subjecting itself to liability to personal service therein, so long as such transactions are merely incidental to the corporation's ordinary business which is transacted wholly outside the state, and do not amount to any essential or substantial part of such ordinary business. The underlying purpose of limiting service upon a foreign corporation is to guard against the placing of an unreasonable and undue gurden upon interstate commerce * * *.' State ex rel. Mills Automatic Merchandising Corp. v. Hogan, supra, 103 S.W.2d 495, 497. See also, Hayman v. Southern Pacific Co., Mo.Sup., 278 S.W.2d 749, and Pucci v. Blatz Brewing Co., D.C., 127 F.Supp. 747. As stated, it is necessary that the foreign corporation be engaged in transacting some substantial part of its usual and ordinary business in this state. Nathan v. Planters' Cotton Oil Co., 187 Mo.App. 560, 174 S.W. 126. It is generally held 'that single or isolated acts, contracts, or transactions of such corporations in the state will not ordinarily be regarded as a doing or carrying on of business...