Chapman Chemical Co. v. Taylor, 4-8844

CourtSupreme Court of Arkansas
Writing for the CourtFrank G. Smith, J.
Citation222 S.W.2d 820,215 Ark. 630
PartiesChapman Chemical Company v. Taylor, et al
Docket Number4-8844
Decision Date27 June 1949

222 S.W.2d 820

215 Ark. 630

Chapman Chemical Company
v.

Taylor, et al

No. 4-8844

Supreme Court of Arkansas

June 27, 1949


Rehearing Denied October 3, 1949.

Appeal from Jefferson Circuit Court; T. G. Parham, Judge.

Affirmed.

Evans, Exby & Moriarty and Coleman, Gantt & Ramsay, for appellant.

A. F. Triplett, Bridges, Bridges, Young & Gregory and John Harris Jones, for appellee.

Frank G. Smith, J., George Rose Smith, J., dissenting in part.

OPINION

Frank G. Smith, J. [222 S.W.2d 821]

[215 Ark. 631] Mrs. Virginia C. Wilson owns a farm in Jefferson County, which she rented in the year 1947 to G. E. Taylor for an agreed share of the crops grown on the land, the principal crop being cotton. She and her tenant filed this suit against Elms Planting Co., a corporation, to recover damages to their crop occasioned by the use of a chemical dust by the Elms Co. called 2-4-D, in spraying a rice crop on land owned by the Elms Co. which was three-fourths of a mile from plaintiffs' crop.

[215 Ark. 632] The testimony shows that within very recent years there has been developed a powerful chemical referred to as 2-4-D, which is very damaging to any broad leaved plant with which it has contact, but which does no harm to grasses and plants which are not broad leaved. The Elms Co. used this chemical in spraying its rice crop and particles thereof drifted and settled on plaintiffs' cotton crop, greatly reducing the yield thereof and this suit was brought to recover compensation for this damage.

The Elms Co. filed an answer in which liability was denied. In addition it filed a cross-complaint against Chapman Chemical Co. and others who have passed out of the case. Service on the Chemical Co., an Illinois corporation, was had under the provisions of Act 347 of the Acts of 1947, which were fully complied with. It was alleged in its answer that if the Elms Co. was in fact liable in any amount, the Chemical Co., if not primarily and solely liable, was at least a joint tortfeasor and the provisions of Act 315 of the Acts of the General Assembly of 1941, known as the Uniform Contribution Among Tortfeasors Act were invoked.

The Chemical Co. was not made a party defendant to the original suit of the plaintiffs who filed a motion praying that the suit against the Chemical Co. be dismissed. This motion was overruled.

Numerous other pleadings were filed. The Chemical Co. appeared for the purpose only of moving to quash the service against it. The testimony on the hearing of this motion will be later discussed. The motion was overruled and exceptions saved. The Chemical Co. moved to dismiss also upon the ground that Act 315, supra, has no application inasmuch as there is no liability on the part of the Chemical Co. to the plaintiffs. This motion, which will later be discussed was also overruled. The case proceeded to a trial where numerous exceptions were saved to various actions and rulings of the court and resulted in a verdict in favor of the plaintiffs against the Chemical Co. and in favor of the Elms Co. From the judgments rendered upon this verdict the Chemical Co. has appealed and so also have the plaintiffs.

[215 Ark. 633] The first question properly to be considered is that of the sufficiency of the service on the Chemical Co. which, as we have said, was had under the provisions of Act 347 of the Acts of 1947, the relevant provisions of which are as follows:

"Section 2. Any non-resident person, firm, partnership, general or limited, or any corporation not qualified under the Constitution and Laws of this State as to doing business herein, who shall do any business or perform any character of work or service in this State shall, by the doing of such business or the performing of such work, or service, be deemed to have appointed the Secretary of State, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident, upon whom [222 S.W.2d 822] process may be served in any action accrued or accruing from the doing of such business, or the performing of such work, or service, or as an incident thereto by any such non-resident, or his, its or their agent, servant or employee. Service of such process shall be made by serving a copy of the process on the said Secretary of State, and such service shall be sufficient service upon the said non-resident of the State of Arkansas, provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff, or his attorney, to the defendant at his last known address, and the defendant's written return receipt, or the affidavit of the plaintiff, or his attorney, of compliance herewith are appended to the writ of process and entered in the office of the Clerk of the court wherein said cause is brought. The court in which the action is pending may order such continuance as may be necessary to afford the defendant, or defendants, reasonable opportunity to defend the action."

This act was upheld as valid legislation in the case of Gillioz v. Kincannon, Judge, 213 Ark. 1010, 214 S.W. 2d, 212, except the retroactive feature thereof. Here all relevant facts accrued after the act was in full force and effect. The insistence is, however, that the Chemical Co. has done no business in this State sufficient to bring it [215 Ark. 634] within the provisions of the act. Upon this issue of fact the following testimony was offered.

There are three separate corporations, each doing business as the Chapman Chemical Co. One of these is located in the State of Louisiana, another in the State of Illinois, and the third in the State of Tennessee. The Tennessee corporation is engaged in manufacturing chemicals solely for sale by the Illinois Co. and the Louisiana Co. All the stock in all three corporations is owned by Dale Chapman except a single share in each, which is otherwise owned for qualifying purposes. Orders are sent to and filled by the Illinois corporation, the only one of the three companies here sued. The Illinois corporation has no office or warehouse in this state, has no bank account here, and has no agent in this State. Orders for the products of the Tennessee corporation are received in Illinois and filled from that state from the Tennessee office by shipments in interstate commerce at the direction of the Illinois company, which has the exclusive power to receive and fill orders. In this connection it may be said that no attempt was made to show that the Illinois corporation was doing business in the sense that it would be subject to penalties for failure to secure authorization from the state for admittance to the state.

It was shown, however, that for the 12 or 15 years last past, the Illinois company had sold throughout the State certain wood preservatives. Sales made in Arkansas comprised a substantial part of the company's business and its traveling salesmen had for many years operated in this State. Its principal customers were operators of lumber mills and wholesale lumber dealers, who act as distributors for the wood preservatives. Representatives of the Chemical Co. consulted and advised with the agricultural and forestry agents of this State as to the manner in which the products it was selling should be used, and as to additional uses thereof which might be made, and in otherwise building up a good will valuable to its business.

[215 Ark. 635] Specifically as to the use of 2-4-D the testimony is to the effect that the Chemical Co. sought to introduce its use in the rice growing area of the State, and to that end its representatives came into the State and conferred with officers of the Rice Growers Assn. as to its use. It was agreed that a test should be made and one was made in this State, the purpose of which was to determine whether the 2-4-D dust could be distributed from an airplane, as could other chemical dusts of various kinds for various purposes by farmers. The test was made and it was shown that it could be so used. Chapman, the Company's president, testified that he knew it could be so used before the test was made, but the purpose of the test was to demonstrate that fact to prospective customers. No test was made as to the floating quality of the dust, that is the distance it would carry in the air after it was released from a plane.

Chapman brought with him in his automobile from Memphis to Stuttgart in this [222 S.W.2d 823] State a quantity of the powder or dust, for the purpose of making the test, and he paid the aviator for his services in making it. Chapman had cooperated with state experimental stations in this State in working out projects for the development of uses for the products sold by the Chemical Co. That Company provided literature containing instructions for the use of 2-4-D to local distributors in this State, to be given to prospective users of the Chemical Co. products. It joined Arkansas local distributors in advertising Chemical Co. products in this State, and arranged for the advertisement thereof in a local paper, one half of the costs of which it paid and finally it brought a suit, now pending against the Elms Co. for the purchase price of the dust the distribution of which by plane gave rise to this law suit.

The case of Frene v. Louisville Cement Co., 77 U. S. App. D. C. 129, 134 F.2d 511, 146 A. L. R. 926, deals at length and reviews many authorities on the concept of doing business by a foreign corporation. The opinion was written by Justice Rutledge then an Associate Justice of the U. S. Court of Appeals for the [215 Ark. 636] District of Columbia, now a member of the Supreme Court of the United States. It was there said that the mere solicitation of business whether on a casual or occasional or regular, continuous and long continued basis does not constitute doing business in a foreign state, and it may be added that filling orders thus obtained by shipping goods in interstate commerce would not...

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12 practice notes
  • Long v. U.S. Brass Corp., No. CIV. 03-B-968 (BNB).
    • United States
    • U.S. District Court — District of Colorado
    • August 17, 2004
    ...before them. See, e.g., Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692, 695 (1984), (citing Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820, 827 (1949)); Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 579 A.2d 26, 33 (1990); Hebel, 65 Ill.Dec. 888, 442 N......
  • Chatman v. Millis, No. 74--139
    • United States
    • Supreme Court of Arkansas
    • January 13, 1975
    ...it and agree that it exists. The 'foreseeability' test is not new to Arkansas law. It was applied in Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820, in 1949. The application by this court of the test of actionable negligence by foreseeability of harm to the person injured was ......
  • Green v. Equitable Powder Mfg. Co., Civ. No. 928.
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • August 10, 1951
    ...212, the validity of the statute was upheld except as to the retroactive feature or provision. In Chapman Chemical Company v. Taylor, 215 Ark. 630, 222 S.W.2d 820, the court considered the sufficiency of the service on the appellant, Chapman Chemical Company. The Chemical Company insisted t......
  • Loe v. Lenhardt
    • United States
    • Supreme Court of Oregon
    • May 17, 1961
    ...of the person applying the chemicals to support a verdict based upon negligence. The exception was Chapman Chemical Co. v. Taylor et al., 215 Ark. 630, 222 S.W.2d 820, which exonerated the applicator as free from negligence but held the manufacturer of the chemical liable on the basis of st......
  • Request a trial to view additional results
12 cases
  • Long v. U.S. Brass Corp., No. CIV. 03-B-968 (BNB).
    • United States
    • U.S. District Court — District of Colorado
    • August 17, 2004
    ...before them. See, e.g., Dildine v. Clark Equipment Co., 282 Ark. 130, 666 S.W.2d 692, 695 (1984), (citing Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820, 827 (1949)); Burkert v. Petrol Plus of Naugatuck, Inc., 216 Conn. 65, 579 A.2d 26, 33 (1990); Hebel, 65 Ill.Dec. 888, 442 N......
  • Chatman v. Millis, No. 74--139
    • United States
    • Supreme Court of Arkansas
    • January 13, 1975
    ...it and agree that it exists. The 'foreseeability' test is not new to Arkansas law. It was applied in Chapman Chemical Co. v. Taylor, 215 Ark. 630, 222 S.W.2d 820, in 1949. The application by this court of the test of actionable negligence by foreseeability of harm to the person injured was ......
  • Green v. Equitable Powder Mfg. Co., Civ. No. 928.
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • August 10, 1951
    ...212, the validity of the statute was upheld except as to the retroactive feature or provision. In Chapman Chemical Company v. Taylor, 215 Ark. 630, 222 S.W.2d 820, the court considered the sufficiency of the service on the appellant, Chapman Chemical Company. The Chemical Company insisted t......
  • Loe v. Lenhardt
    • United States
    • Supreme Court of Oregon
    • May 17, 1961
    ...of the person applying the chemicals to support a verdict based upon negligence. The exception was Chapman Chemical Co. v. Taylor et al., 215 Ark. 630, 222 S.W.2d 820, which exonerated the applicator as free from negligence but held the manufacturer of the chemical liable on the basis of st......
  • Request a trial to view additional results

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