418 P.2d 900 (Okla. 1965), 40675, Marathon Battery Co. v. Kilpatrick

Docket Nº:40675.
Citation:418 P.2d 900, 1965 OK 212
Party Name:MARATHON BATTERY COMPANY, Oklahoma Tire and Supply company and McCrory Corporation, Plaintiffs in Error, v. Lloyd C. KILPATRICK, Defendant in Error.
Case Date:December 28, 1965
Court:Supreme Court of Oklahoma

Page 900

418 P.2d 900 (Okla. 1965)

1965 OK 212

MARATHON BATTERY COMPANY, Oklahoma Tire and Supply company

and McCrory Corporation, Plaintiffs in Error,


Lloyd C. KILPATRICK, Defendant in Error.

No. 40675.

Supreme Court of Oklahoma.

December 28, 1965.

Rehearing Denied July 11, 1966.

Application for Leave to File Second Petition for Rehearing Denied Oct. 18, 1966.

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[Copyrighted Material Omitted]

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Syllabus by the Court

1. The test of jurisdiction of the courts of this State over a non-domesticated, foreign corporation no longer is solely or necessarily whether the acts of such corporation 'amount to doing business' within the State as measured by our earlier decisions. Harrell v. Peters Cartridge Co., 36 Okl. 684, 129 P. 872; Wills v. National Mineral Co., 176 Okl. 193, 55 P.2d 449; S. Howes Co. v. W. P. Milling Co., Okl., 277 P.2d 655, and other decisions in conflict with this rule are hereby overruled.

2. Statutory service of process upon a foreign corporation is sufficient to meet requirements of due process and to support a judgment in personam where the action against such non-resident, not served with process in Oklahoma, rests upon a contract which has a substantial connection with this State.

3. While a sale is essential to impose liability under implied warranty, the initial sale to the distributor or retailer is sufficient to impose upon the manufacturer the duty of fulfilling the implied warranty that inures to the benefit of persons intended to and who become the purchaser or consumer.

4. A buyer's purchase of an article at random from a trade stock of identical items offered for sale at retail is not such selection as avoids the buyer's right to rely upon the skill and judgment of the seller which destroys the implied warranty of fitness for the purpose for which intended.

5. Because warranty is implied either in fact or in law, no express representations or agreements by the manufacturers are required, and recovery upon implied warranty is based upon the fact that the product has been transferred from the manufacturer's possession while in a defective state and as a result of such defect the product causes personal injury.

6. The jury may follow its own convictions, based upon its own experience, observations and common knowledge, in reaching a verdict in civil cases, although contrary to the opinions of expert witnesses.

7. It is not reversible error to overrule a demurrer to the evidence and motion for directed verdict in a law action when there is any evidence reasonably tending to support the claim of the plaintiff.

8. The trial court must, on its own motion, properly charge the jury on issues raised by the pleadings and evidence in the case, but instructions which submit the vital features of the tenable legal theories of both litigants upon the isssues involved are sufficient.

9. In a suit for damages for personal injuries, before a verdict of the jury will be set aside as excessive it must appear that the verdict is so excessive as to strike mankind, at first blush, as being beyond all measure unreasonable and outrageous and such as manifestly shows the jury to have been actuated by passion, partiality, prejudice or corruption.

Appeal from the District Court of Muskogee County; E. G. Carroll, Judge.

Suit for damages for personal injuries. Judgment rendered upon a jury verdict in plaintiff's favor, and defendants appeal. Reversed in part and affirmed in part. (Judgment reversed as to defendant Oklahoma Tire & Supply Company.)

Houston, Klein & Davidson, Tulsa, for plaintiffs in error.

Jesse L. Leeds, Norman & Wheeler, Muskogee, for defendant in error.

BERRY, Justice.

This action originally was brought against Oklahoma Tire & Supply Company, heeinafter designated as 'Otasco', and Marathon Battery Company, referred to as 'Marathon'. The action, filed July 7, 1962, sought to recover damages for personal injuries alleged to have resulted from breach of implied warranty by the named defendants. Subsequently, November 21, 1962, plaintiff was granted leave to

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file supplemental petition naming McCrory Corporation, hereafter denominated as 'McCrory', an additional party defendant, for the reason such corporation owned some interest and exercised some management and control over defendant Otasco. Jurisdiction was obtained over McCrory, a domesticated corporation, by service upon J.G.H., the service agent. The matters hereafter summarized are disclosed by the pleadings.

Concerning essential allegations, the plaintiff alleged Marathon, a Wisconsin corporation, was doing business in Oklahoma, having manufactured and placed such item for sale to the general public through various retailers, and the trial court had jurisdiction over this defendant under the provisions of 18 O.S.1961, § 1.204a. As concerned Otasco, it was alleged such defendant at all times was a Delaware corporation, authorized to do and doing business in this State at all times pertinent to this action, whose service agent was J.G.H., a resident of Oklahoma City, Oklahoma.

On June 21, 1961, plaintiff purchased a 6-volt dry cell lantern battery from Otasco's retail store in Muskogee, Oklahoma. This battery had been manufactured and sold to Otasco by Marathon, a Wisconsin corporation, which neither had domesticated in Oklahoma nor appointed a service agent in this State. Otasco had sold this battery to plaintiff in the usual course of defendant's retail business. On December 29, 1961, plaintiff was holding the battery in his hand when an explosion occurred, blowing the top portion of the battery off and resulting in painful and permanent injuries, particularly to his thumb and the two forefingers of his right hand, which partially were blown away. The petition charged Otasco with acting as exclusive selling agent of Marathon, and that both mutually engaged in business for profit, Marathon in manufacturing and Otasco in sale of the product; that in manufacture and sale of the battery defendants had been guilty of breach of implied warranty of fitness as to material, workmanship, freedom from latent defects, proper construction, manufacture and testing before being offered for sale; that the battery was a technical mechanism of which defendants had special knowledge, and thereby impliedly warranted that there were no defects which would be harmful; that no warning was given that plaintiff need be alarmed for his personal safety, and no patent defects appeared which plaintiff could ascertain by examination. The petition further alleged the circumstances surrounding the explosion, physical injuries and the nature and extent of personal damages which plaintiff had suffered.

Both Marathon and Otasco filed Motions to Quash and Plea to the Jurisdiction and Venue. Marathon's motion, supported by affidavits, denied jurisdiction upon grounds defendant neither was domesticated nor doing business within the State at any time referred to in the petition. Both motions were heard and overruled. Thereafter, each defendant filed a General Demurrer and a Motion To Make Definite And Certain.

Marathon's motion sought to require plaintiff to state what business defendant was doing at the times alleged, and if unable to so state, that all references to defendant's doing business in this State be stricken; and that plaintiff be required to state with particularity the basis for the allegation that Marathon and Otasco were mutually engaged in business for profit, and if unable to do so then such allegations be stricken. Otasco's motion similarly was directed to the allegation relative to defendants' mutual engagement in business. The motions and demurrers were heard and overruled by the trial court.

Marathon, reserving all objections to venue and jurisdiction, answered by general and specific denial that Otasco or anyone in its behalf were 'mutually engaged in a business for profit'. Defendant Otasco filed essentially the same answer, and specifically denied anyone in its behalf or at any time acted as agent, servant or employee of Marathon, or that defendants

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were mutually engaged in any business for profit.

Thereafter (October 26, 1962) Otasco filed amended answer alleging it was not incorporated or in existence in June, 1961; that it had incorporated in the State of Delaware on December 29, 1961, but neither was domesticated nor authorized to do business in this State on that date; that on neither date in 1961 was defendant engaged in any business in this State, particularly pleading the facts in support of such allegations.

Plaintiff replied by general denial of matters asserted by defendants' answers, and then alleged that although during a short portion of 1961 Otasco had been merged into another corporation it still continued to hold itself out as Oklahoma Tire and Supply Co., and to do business at the same locations, with same personnel and purpose of existence; that the subsequent incorporation in January, 1962, was only an extension and continuation of the former corporation and defendant, therefore, was liable for obligations of the former company.

Following filing of the supplemental petition, alluded to above, each defendant filed combined motions to strike, made definite and certain, demurrer and special demurrer, adopting those pleadings directed at the original petition. Upon these pleadings being overruled defendants moved to require plaintiff to elect between the theory of breach of implied warranty and res ipsa loquitur, and that the inconsistent theory be ordered stricken from consideration.

Each defendant filed separate answer. Marathon, preserving its objections to jurisdiction and venue of the trial court, answered, denying: (1) Otasco or its agents...

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