State ex rel. Metal Service Center of Georgia, Inc. v. Gaertner

• Decision Date: 09 October 1984
• Docket Number: No. 65664,65664
• Citation: 677 S.W.2d 325
• Parties: STATE ex rel. METAL SERVICE CENTER OF GEORGIA, INC., Relator, v. Hon. Gary M. GAERTNER, Circuit Judge, St. Louis City, Respondent, Roton Products, Inc., Intervenor-Respondent.
• Court: Missouri Supreme Court

Page 325

677 S.W.2d 325

STATE ex rel. METAL SERVICE CENTER OF GEORGIA, INC., Relator, v. Hon. Gary M. GAERTNER, Circuit Judge, St. Louis City, Respondent, Roton Products, Inc., Intervenor-Respondent.

No. 65664.

Supreme Court of Missouri,

En Banc.

Oct. 9, 1984.

Robert A. Hutton, Jr., Clayton, for relator.

Myron S. Zwibelman, Terry Crouppen, St. Louis, Lawrence J. Altman, for respondent.

ORIGINAL PROCEEDING IN PROHIBITION

BLACKMAR, Judge.

The defendant and relator, Metal Service Center of Georgia, Inc. is a Georgia corporation engaged in supplying finished metal products to commercial customers. It is not qualified to do business as a foreign corporation in Missouri and has no regular and continuing contacts with the state of Missouri.

The plaintiff, Roton Products, Inc., is a Missouri corporation apparently based in Kirkwood and engaged in the business of preparing and finishing raw metal stock.

In January of 1982 Metal Service telephoned Roton to inquire into the possibility of Roton's doing some work on its products. Roton mailed a quotation to Metal Service in Georgia, calling for acceptance within 60 days. Shipment was to be "FOB Kirkwood," so that Metal Services was required to bear the cost of shipping materials to Kirkwood and of any shipment of the product after Roton had done the required work. Metal Service accepted Roton's offer by a "purchase order" conforming to the quotation. Both parties assume that the ensuing contract was made in Georgia.

Metal Service then shipped the required unfinished materials to Roton in Kirkwood and, after work had been done, the product was shipped back to Metal Service at its own expense. The parties have not been entirely candid with the Court as to whether the ingoing or outgoing shipments were in trucks owned by Metal Service and operated by its employees, or by common carrier, ¹ but we deem the method of shipment immaterial. A common carrier, if hired at Metal Service's expense, was the agent of Metal Service just as an employee would have been. Brown v. Park Transportation Co., 382 S.W.2d 467 (Mo.App.1964). It is appropriate to say, then, that Metal Products is responsible both for the ingoing and the outgoing shipments.

After some material had been shipped and worked on a dispute arose. Metal Service refused to pay for work which, in its opinion, did not comply with specifications. Roton then filed suit for the contract price in the Circuit Court of the City of St. Louis, obtaining service under the "longarm" statute, § 506.500ff, RSMo 1978.

Metal Service filed an answer raising, among other defenses, a claim of want of jurisdiction over the person. We treat its assertion of this claim and of underlying constitutional questions as sufficient. The defense of want of jurisdiction over the person may be raised by answer or by motion at the option of the pleader. Missouri Supreme Court Rule 55.27. It is not necessary to use the label of "special appearance" for either a motion or an answer. State ex rel. White v. Marsh, 646 S.W.2d 357 (Mo. banc 1983). After answer had been filed, Metal Services filed a motion to dismiss for want of jurisdiction over the person. The issue could appropriately be determined prior to trial by this means.

The circuit court overruled the motion to dismiss. After Metal Service unsuccessfully sought prohibition in the Missouri Court of Appeals, Eastern District, the application was renewed here and we issued our provisional rule. We now conclude that the circuit court properly exercised jurisdiction over Metal Service, and so the provisional rule is quashed.

The "longarm statute" reads in pertinent part as follows:

1. Any person or firm, whether or not a citizen or resident of this state, or any corporation, who in person or through an agent does any of the acts enumerated in this section, thereby submits such person, firm, or corporation, and, if an individual, his personal representative, to the jurisdiction of the courts of this state as to any cause of action arising from the doing of any of such acts:

(1) The transaction of any business within this state;

(2) The making of any contract within this state;

* * *

* * *

The legislature, in enacting this statute, sought to extend the jurisdiction of Missouri courts to numerous classes of out-of-state defendants who could not have been sued in Missouri under the preexisting law. It also intended to provide for jurisdiction, within the specific categories enumerated in the statutes, to the full extent permitted by the due process clause of the Fourteenth Amendment. State ex rel. Deere & Co. v. Pinnell, 454 S.W.2d 889 (Mo. banc 1970). A particular purpose was to confer jurisdiction over nonresidents who enter into various kinds of transactions with residents of Missouri. The present contract, as has been observed, called for performance wholly within Missouri on materials shipped into the state by one party. Roton would suffer a degree of inconvenience if it were required to go to Georgia or some other state in order to assert its claim against Metal Service, which, by contrast, voluntarily caused Roton to do some of its work in Missouri.

Roton, however, must overcome two obstacles. It must show that the transaction between the parties fits into one of the subsections of the statute. If successful up to this point it then must show that the assumption of longarm jurisdiction accords with the due process requirements of the Fourteenth Amendment.

The contract portion, subsection (2), does not help Roton because the contract was made in Georgia. We believe, however, that Metal Service engaged in the transaction of business in Missouri so as to bring Roton's claim within the provisions of subsection (1). A business transaction necessarily has more than one party. It might be argued that the business transacted in Missouri was Roton's and not Metal Service's, because the transaction is one from which Roton derived revenue whereas Metal Service derived its income from sales of the finished product to its customers. But "transaction of any business" must be construed broadly. A...