Tetco Metal Products, Inc. v. Langham

Decision Date15 January 1968
Docket NumberNo. 23786.,23786.
Citation387 F.2d 721
PartiesTETCO METAL PRODUCTS, INC., Appellant, v. Glenn C. LANGHAM and Imogene N. Langham, Appellees.
CourtU.S. Court of Appeals — Fifth Circuit

William F. Horsley, Sam W. Pipes, III, Irwin W. Coleman, Jr., Mobile, Ala., Lyons, Pipes & Cook, Mobile, Ala., of counsel, for appellant.

Lionel L. Layden, Mobile, Ala., Moore, Moore, Downing & Layden, Mobile, Ala., of counsel, for appellees.

Before JONES, WISDOM and DYER, Circuit Judges.

DYER, Circuit Judge:

In January, 1962 the Langhams purchased a hot water heater from a Mobile, Alabama retailer. A ten year warranty by the manufacturer, Tetco Metal Products, Inc., an Illinois corporation, against defects in material and workmanship came with the heater. The Langhams filled in the required information and returned the warranty card to Tetco's office in Illinois. Mr. Langham installed the heater in his home, where it functioned properly for about a year and then exploded, damaging the Langham's home and furniture. The Langhams brought suit against Tetco in the Southern District of Alabama to recover damages in the amount of $11,500. Service of process was made against Tetco by registered mail under Title 7, Section 199(1), Code of Alabama 1940 (Recomp. 1958).1 Tetco filed a motion to quash service of process on the ground that it did not have those minimum contacts with Alabama necessary for that state to obtain jurisdiction. The motion was denied and the case proceeded to trial on the written express warranty. The jury returned a verdict for the Langhams in the amount of $5,000. At the outset on appeal Tetco raises the question of whether the district court erred in refusing to quash service of process. Tetco also raises several other questions but we pretermit any discussion of them in view of our conclusion that the district court lacked jurisdiction and should, therefore, have granted Tetco's motion to quash.

The evidence concerning Tetco's amenability to service consists of the uncontradicted2 affidavit of Tetco's president. The affidavit shows that Tetco is an Illinois corporation, with its principal place of business in that state. It has never qualified to do business in Alabama; owns no property in Alabama; has no bank account there; neither owns nor operates a warehouse or other place of business in that state; has no salesman or repairman or other employee in Alabama; and manufactures no product in Alabama. Tetco's only connections with Alabama consist of shipping water heaters to independent Alabama retailers in response to their unsolicited orders, and of receiving the warranty cards from Alabama purchasers.

In considering the validity vel non of substituted service of process to effect jurisdiction over a party, each case must be decided on its own facts and under the law of the forum state. Phillips v. Hooker, 5 Cir. 1967, 375 F.2d 189, 192. We are convinced that Tetco's connections with Alabama simply do not constitute doing business under Alabama law. In Ex parte Emerson, 1960, 270 Ala. 697, 121 So.2d 914, a Texas manufacturer sold its product to Alabama drugstores which sold to the public. The manufacturer paid several salesmen to cover the entire United States. However, these salesmen were not controlled by the manufacturer and paid their own travel and operational expenses. The Supreme Court of Alabama held that "the men selling Pedolatum in Alabama were either selling a product which they had purchased or were independent contractors and therefore Dr. J. B. King was not doing business within the State of Alabama." Ex parte Emerson, supra, at 920. There is no contention in this case that Tetco sold directly to any consumer, that it employed anyone to sell its water heaters, or that the retailers were selling the heaters as Tetco's agent. Here as in Emerson the manufacturer's product was distributed in Alabama by an independent party over whom the manufacturer had no control.

In determining whether there is jurisdiction under the Alabama long-arm statute, the courts have emphasized several factors as being indicative of doing business in the state: 1) presence of...

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  • Wilshire Oil Company of Texas v. Riffe
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • April 15, 1969
    ...Oil Company of Texas v. Riffe, 381 F.2d 646, 653 (10th Cir. 1967), cert. den. 389 U.S. 822, 88 S.Ct. 50. 13 Tetco Metal Products, Inc. v. Langham, 387 F.2d 721 (5th Cir. 1968); Taylor v. Portland Paramount Corp., 383 F.2d 634 (9th Cir. 1967); Unicon Management Corp. v. Koppers Co., 250 F.Su......
  • Southern Investors II v. Commuter Aircraft Corp., Civ.A.No. 81-364-B.
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    ...Jetco Electronic Industries, Inc. v. Gardiner, supra; Barrett v. Browning Arms Co., 433 F.2d 141 (5 Cir. 1970); Tetco Metal Products, Inc. v. Langham, 387 F.2d 721 (5 Cir. 1968). If the requirements of the Louisiana statute are satisfied, then federal law must be applied to determine whethe......
  • Jetco Electronic Industries, Inc. v. Gardiner, 72-2061.
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    • March 21, 1973
    ...state law of the forum controls this question. Barrett v. Browning Arms Co., 5th Cir. 1970, 433 F.2d 141; Tetco Metal Products, Inc. v. Langham, 5th Cir. 1968, 387 F.2d 721. If the state statute has been complied with, then federal law must be applied to determine whether assertion of juris......
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