State ex rel. Clay Equipment Corp. v. Jensen

Decision Date14 January 1963
Docket NumberNo. 49418,49418
PartiesSTATE et rel. CLAY EQUIPMENT CORPORATION, Relator, v. Honorable Richard C. JENSEN, Judge, Division 13 of the Circuit Court of Jackson County, Missouri, Respondent.
CourtMissouri Supreme Court

Rufus Burrus, Independence, for relator.

Russell D. Jacobson and Max W. Foust, Foust & Lyons, Kansas City, for respondent.

DALTON, Judge.

This is an original proceeding in prohibition. Relator seeks to prohibit the respondent Judge from proceeding with the trial of a $500,000 personal injury damage suit instituted by one Charles Elliston in the Circuit Court of Jackson County against relator, Clay Equipment Corporation. Relator is a corporation organized and existing under the laws of the State of Iowa, and not licensed to do business in Missouri. Relator's 'Special Plea to Jurisdiction of Defendant Clay Equipment Corporation' was filed and overruled and respondent will proceed to try the cause, unless prohibited by this court.

In his petition the plaintiff, Elliston, alleged: '* * * that said corporation has by and through its agents, servants and employees committed a tort as hereinafter described against the plaintiff herein, a resident of the State of Missouri; that the aforementioned tort was committed within this state; that since said corporation has no regularly and lawfully appointed agent in Missouri for the reception of service of process that plaintiff, under the provisions of sub-sections 2-5, Section 351.630 R.S.Mo., 1961 Supp.Mo.Laws 1961, V.A.M.S., directs the Secretary of State to immediately cause copies of this petition to be forwarded by registered mail, return receipt requested, to the secretary of said corporation whose name and address is Roger L. Clay, Cedar Falls, Iows.' Service of process was attempted in the manner directed and the defendant (relator herein) appeared specially to contest the circuit court's jurisdiction.

Respondent admits that 'The basic question involved here is whether jurisdiction over the person of the relator was acquired by service of process upon it under the provisions of paragraph 2, Section 351.630 R.S.Mo., 1961 Supp.'; and respondent says that the question 'narrows to the sole issue of whether the provisions of paragraph 2 (which went into effect on October 13, 1961) are applicable to the casualty which occurred on February 25, 1961 and gave rise to the cause of action which relator seeks to prohibit respondent from hearing.'

It is therefore apparent that the case involves the construction of subsection 2 of Sec. 351.630 RSMo 1959, as amended Laws 1961, p. 257 (Supp. Revised Statutes of Missouri Annotated, page 358), V.A.M.S. The particular portion of the statute to be construed is as follows:

Sec. 351.630(2). 'If a foreign corporation commits a tort, excepting libel and slander, in whole or in part in Missouri against a resident or nonresident of Missouri, such acts shall be deemed to be doing business in Missouri by the foreign corporation and shall be deemed equivalent to the appointment by the foreign corporation of the secretary of state of Missouri and his successors to be its agent and representative to accept service of any process in any actions or proceedings against the foreign corporation arising from or growing out of the tort. Service on the secretary of state of any such process shall be made by delivering to and leaving with him or with any clerk having charge of the corporation department of his office, duplicate copies of the process. The committing of the tort shall be deemed to be the agreement of the foreign corporation that any process against it which is so served upon the secretary of state shall be of the same legal force and effect as it served personally within the state of Missouri.' (Italics ours.)

Respondent's position is also well stated in his return to our preliminary rule, as follows: '* * * that despite the fact that the cause of action pending before respondent under the style of Charles Curtis Elliston v. Martin Dale Shrout, et al. (Jackson County Circuit Court No. 127,792) arose on February 25, 1961, and that service of process in said cause was effected under the provisions of sub-section 2-5, Section 351.630 R.S.Mo. (1961 Supp.), which did not become effective until October 13, 1961, that such service of process was valid, lawful and effective because the aforesaid statutory provisions only modified an existing remedy or gave to plaintiff Charles Curtis Elliston a remedy which he did not previously possess (that is to say, another method of service of process whereby jurisdiction over the person of relator could be obtained), and that said provisions apply to all actions falling within the terms of said statutory provisions whether commenced before or after their enactment, unless a contrary intention has been expressed by the legislature, and that no such contrary intention is so expressed in said statutory provisions; and further that said service of process has not disturbed, altered, impaired, created, defined or regulated any of reltor's substantive or vested rights.'

The parties agree that the issue for determination is whether the quoted part of the Act is prospective in its application and substantive in character, as contended by relator, or whether it is exclusively remedial and procedural in character and the statutory language implies a retroactive construction and application, as contended by respondent.

In this connection respondent relies particularly upon State ex rel. Sweezer v. Green, 360 Mo. 1249, 232 S.W.2d 897, 900 (4-5), 24 A.L.R.2d 340, wherein the court said: "'Retroactive' or 'retrospective' laws are generally defined, from a legal viewpoint, as those which take away or impair vested rights acquired under existing laws, or create a new obligation, impose a new duty, or attach a new disability in respect to transactions or considerations already past.' * * * A statute is not retrospective because it merely relates to prior facts or transactions but does not change their legal effect, or because some of the requisites for its action are drawn from a time antecedent to its passage, or because it fixes the status of a person for the purpose of its operation. * * * We have many times held that a statute is not retrospective in its operation within the constitutional prohibition, unless it impairs a vested right. * * * Nor is an act retrospective if it but substitutes a remedy or provides a new remedy.' (Italics ours.) 232 S.W.2d 900(4-5).

Respondent concedes 'that there is a general prohibition against retroactive construction or application of laws,' but insists that there is an exception to this rule 'where the law seeking retroactive application or construction is remedial or procedural in its nature, unless a contrary intention has been expressed by the legislature'; and that 'this is so, providing the enactment doesn't disturb, alter, destroy, impair, create, define or regulate substantive or vested rights.' (Italics ours.) And see Article I, Sec. 13 Constitution of Missouri 1945, V.A.M.S., which in substance bars the Legislature of this state from passing a retroactive law, as follows: 'That no expost facto law, nor law impairing the obligation of contracts, or retrospective in its operation, or making any irrevocable grant of special privileges or immunities, can be enacted.'

The mentioned constitutional provision does not apply in some cases, as for example, to a statute dealing only with procedure or the remedy. In such case the statute applies to all actions falling within its terms, whether commenced before or after the enactment, that is, unless a contrary intention is expressed by the legislature, and a statute affecting only the remedy may apply to a cause of action existing at the time the statute was enacted. See Wentz v. Price Candy Co., 352 Mo. 1, 175 S.W.2d 852. Darrah v. Foster, Mo.Sup., 355 S.W.2d 24, 29(3); Aetna Insurance Co. v. O'Malley, 342 Mo. 800, 118 S.W.2d 3, 8. The rule governing the applicability of a procedural statute is stated in Clark v. Kansas City, St. L. & C. R. Co., 219 Mo. 524, 118 S.W. 40, 43, as follows: 'No person can claim a vested right in any particular mode of procedure for the enforcement or defense of his rights. Where a new statute deals with procedure only, prima facie it applies to all actions--[including] those which have accrued or are pending and future actions.'

Is subsection 2 of the questioned statute prospective and substantive in character or is it exclusively remedial and procedural in character? A careful examination of the statute is required in order to determine the legislative intent as expressed by the words used in the statute.

The basic rule of statutory construction is to seek the intention of the law-makers and, if possible, to effectuate that intention, and the court should ascertain the legislative intent from the words used, if possible, and should ascribe to the language used, its plain and rational meaning. State ex rel. Wright v. Carter, Mo.Sup., 319 S.W.2d 596, 599; A. P. Greene Fire Brick Co., v. Missouri State Tax Commission, Mo.Sup., 277 S.W.2d 544, 545(3); Tiger v. State Tax Commission, Mo.Sup., 277 S.W.2d 561, 564(2, 3); Baker v. Brown's Estate, 365 Mo. 1159, 294 S.W.2d 22, 25(3).

We think that subsection 2, of Sec. 351.630 RSMo 1959, as amended Laws 1961, p. 257, V.A.M.S., evidences a clear intention on the part of the Legislature that the statute shall operate prospectively only. It expressly says: 'If a foreign corporation commits a tort.' This statement points to a happening in the future. The statute does not...

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29 cases
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    ...cases which hold that non-resident statutes cannot be construed to apply retroactively, e. g. State ex. rel. Clay Equipment Corporation v. Jensen, Supreme Court of Missouri, 363 S.W.2d 666 (1963); Cassan v. Fern, 33 N.J.Super. 96, 109 A.2d 482 (1954); Monacelli v. Grimes, 9 Terry 122, 48 De......
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