B. B. P. Ass'n, Inc. v. Cessna Aircraft Co.
| Decision Date | 14 November 1966 |
| Docket Number | No. 9851,9851 |
| Citation | 91 Idaho 259,420 P.2d 134 |
| Parties | B. B. P. ASSOCIATION, INC. Plaintiff-Appellant, v. CESSNA AIRCRAFT COMPANY, Idaho Avlation Center, Inc., and H. P. Hill, Defendants-Respondents. |
| Court | Idaho Supreme Court |
Petersen, Moss & Olsen, Idaho Falls, for appellant.
Holden, Holden & Kidwell, Idaho Falls, for respondent, Cessna Aircraft Co.
Ferebauer & Barnard, Idaho Falls, for respondents, Idaho Aviation Center, Inc., and H. P. Hill.
Plaintiff (appellant), a domestic corporation, brought this action against the Cessna Aircraft Company (respondent), a Kansas corporation, engaged in the manufacture and sale of aircraft. The Idaho Aviation Center, Inc., an Idaho corporation, is also named as a defendant. This company has its principal place of business at Idaho Falls and is engaged in retailing, servicing, and repairing aircraft manufactured by defendant Cessna Aircraft Company.
Plaintiff alleged that on or about June 22, 1963, it purchased from the defendant retailer a certain aircraft manufactured by the Cessna Aircraft Company; that the aircraft was warranted by the defendant manufacturer and the defendant retailer to be reasonably fit for the purpose for which it was manufactured and sold, to wit: for the transportation of plaintiff's officers and agents; that it was a first class aircraft of its kind and class; that it was properly and sufficiently constructed and free from defects in material and workmanship. Plaintiff further alleged that on or about August 25, 1963, plaintiff discovered that the aircraft was not fit for the general purpose for which it was manufactured and sold; that it did not fulfill the warranty and in particular that it had been manufactured with a defective engine; that after examination of the engine the manufacturer and retailer agreed to furnish and install a new engine; that thereafter and on or about September 22, 1963, the retailer and manufacturer informed plaintiff that a new engine had been installed and that the aircraft and engine were airworthy and operational; that plaintiff subsequently discovered that the engine installed was not a new one and that it continued to malfunction and as a result the aircraft was not safe to fly.
In a second count plaintiff alleges that the promise of the manufacturer and retailer to install a new engine and their representations that a new engine had been installed in the aircraft were fraudulently made for the purpose of inducing the plaintiff to accept the aircraft, and that plaintiff being induced thereby accepted the aircraft, to its damage.
The defendant Cessna Aircraft Company appeared specially and moved to quash the service of summons upon it. The motion was based upon the ground that the defendant manufacturer was not doing business in the state of Idaho, had no property in the state, and had no agent, officer of other person upon whom service of summons could be made; that the alleged service was made by serving a copy of summons and complaint upon an officer of defendant in the state of Kansas; and on the ground that plaintiff had not complied with the provisions of I.C. § 5-508 in that no verified complaint, nor any affidavit for service of summons outside the state, was filed as required by the statute.
Supporting and opposing affidavits were made and filed by officers of the various corporations involved, and certain exhibits were identified by the affiants and admitted in evidence. The court concluded that the Cessna Aircraft Company was not doing business in Idaho; that the complaint was not verified; and that other essentials to service outside the state were wanting.
Plaintiff brought this appeal from the order quashing service on the foreign corporation. Idaho Code § 5-508 requiries an affidavit setting forth the facts upon which the authorization for foreign service is requested, and the showing of a cause of action against the foreign defendant by verified complaint. Originally I.C. § 5-508 was a part of our Code of Civil Procedure of 1881.
In 1961 our so-called 'long arm statute' was enacted. Its provisions are as follows:
'Any person, firm, company, association or corporation, whether or not a citizen or resident of this state, who in person or through an agent does any of the acts hereinafter enumerated, thereby submits said person, firm, company, association or corporation, and if an individusl, 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 said acts:
'(a) The transaction of any business within this state which is hereby defined as the doing of any act for the purpose of realizing pecuniary benefit or accomplishing or attempting to accomplish, transact or enhance the business purpose or objective or any part thereof of such person, firm, company, association or corporation;
'(b) The commission of a tortious act within this state; * * *.' I.C. § 5-514.
'Service of process upon any such person, firm, company, association or corporation who is subject to the jurisdiction of the courts of this state, as provided herein, may be made by personally serving the summons upon the defendant outside the state with the same force and effect as though summons had been personally served within this state.' I.C. § 5-515.
'Only causes of action arising from acts enumerated herein may be asserted against a defendant in an action in which jurisdiction over such defendant is based upon this section.' I.C. § 5-516.
'Nothing herein contained limits or affects the right to service of process in any other manner now or hereafter provided by law.' I.C. § 5-517.
So far as applicable here, Idaho Rules of Civil Procedure provide as follows:
* * *.' IRCP Rule 4(e).
Service herein was made in compliance with Rule 4(d).
'These rules shall take effect on November 1st, 1958, and thereafter all laws and rules of Civil Procedure in conflict therewith shall be of no further force or effect. * * *.' IRCP Rule 86.
See also, I.C. § 1-215.
Neither the 1961 statute nor the 1958 Rules of Civil Procedure require verification of the complaint or affidavit stating the facts upon which foreign service is sought. In the circumstances here involved, the signature of a resident attorney satisfied these requirements, under authority of Rule 11(a).
Idaho Code § 5-508 was adopted as a rule of procedure, by order of this court dated March 19, 1951. (I.C. Vol. 2 Appendix). We do not hold that § 5-508 has been entirely abrogated by the Idaho Rules of Civil Procedure. The provisions of that statutory rule may have force and effect in other factual situations. It is sufficient here to say that the 1958 rules and the 1961 statute have eliminated the necessity for the verification and affidavit, where the foreign defendant has been personally served and thus has had actual notice of the action.
In Ford Motor Company v. Arguello, 382 P.2d 886, 897 (Wyo. 1963), the Wyoming court was concerned with a similar issue. There the court said:
The facts are not materially in dispute on the issue as to whether Cessna was 'doing business' in Idaho. 1 Cessna's method of doing business was to establish regional distributors throughout the country, assigning certain areas to each. Southern Idaho, including Bonneville county, was assigned by Cessna to its 'distributor' Skyways Aircredit Corporation, located at Ogden, Utah. The contract between Cessna and Skyways Aircredit Corporation is not in the record, but is referred to in the affidavits of the officers of the respective corporations. Retail dealers were appointed by the distributor. The Skyways Aircredit Corporation entered into a written contract with the Idaho Aviation Center, an Idaho corporation having its business situs at Idaho Falls, in bonneville county. By this agreement the Idaho Aviation Center, was appointed as a retail 'dealer' for certain models of Cessna-built aircraft, parts and accessories, in fourteen southern Idaho counties. The form for this 'distributor's Dealer Agreement,' was provided by Cessna, but the use of the form was not mandatory. Cessna did not approve or control the distributor's appointment of the dealer and there was no direct contractual relationship between the dealer and Cessna. The agreement between the distributor and dealer expressly provided that the dealer was not to be considered an agent of the distributor. Aircraft and parts were ordered through the distributor and orders were subject to approval by Cessna at its home office.
Cessna did not maintain any stock of goods, inventory, or bank account in Idaho; it had no employees resding in Idaho; it did not retain title to any property...
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