City Stores Co. v. Williams

• Decision Date: 10 June 1971
• Docket Number: 4 Div. 390
• Citation: 287 Ala. 385,252 So.2d 45
• Parties: CITY STORES COMPANY, a Corporation, et al. v. Mary Ellen WILLIAMS.
• Court: Alabama Supreme Court

Page 45

252 So.2d 45

287 Ala. 385

CITY STORES COMPANY, a Corporation, et al. v. Mary Ellen WILLIAMS.

4 Div. 390.

Supreme Court of Alabama.

June 10, 1971.

Rehearing Denied Sept. 9, 1971.

Rushton, Stakely, Johnston & Garrett, Henry C. Chappell, Jr., Montgomery, for appellants.

Frank W. Riggs, III, Richard H. Gill, Montgomery, for appellee.

HARWOOD, Justice.

City Stores Company, a Delaware Corporation, operates a business in Montgomery under the name of Loveman's. The business so operated is the buying and selling of merchandise as a department store.

On 26 December 1967, an agent or agents of Loveman's procured the issuance of a warrant in the Municipal Court of the City of Montgomery charging the appellee here with grand larceny. The alleged offense occurred in Loveman's store. It is inferable from the record that a preliminary hearing on the charge was waived and the appellee was bound over to await the action of the grand jury of Montgomery County. In May 1968, that body returned a 'no bill.'

Thereafter the appellee filed a complaint in the Circuit Court of Pike County naming City Stores, and three individuals, M. H. Brown, W. T. Thornton, and Ann Welch, as defendants. These three individuals worked as security guards for Loveman's.

It was stipulated that the individual defendants were not residents of Pike County, and had never done business therein.

It is therefore apparent that jurisdiction over the individual defendants was dependent upon whether venue of this cause was properly in Pike County as concerned Loveman's, the individual defendants having been brought in by branch summons as provided in Section 185, Title 7, Code of Alabama 1940. See also Ex parte Western Railway of Alabama, 283 Ala. 6, 214 So.2d 284.

The complaint claimed damages for unlawful arrest and imprisonment for three hours (Count 1), and for malicious prosecution (Count 2).

All of the defendants filed pleas in abatement, which after hearing before the judge without a jury, were overruled.

Trial was then had on the merits and the jury returned a general verdict in favor of the plaintiff and assessed her damages at $32,000. Judgment was entered pursuant to the verdict.

The defendants filed motions for new trials which after hearing were overruled. Appeal from the judgment was then perfected by the defendants below. For convenience, we will hereinafter refer to the appellants as the defendants, and the appellee as the plaintiff, the positions they occupied in the proceedings below.

Defendants' assignment of error No. 11 asserts that the trial court erred in denying defendants' pleas in abatement, and assignment of error No. 23 asserts error in the action of the trial court in denying defendants' motions for a new trial. Grounds 1 and 2 of the motions for a new trial, brought forth and argued in defendants' brief, are:

'1. For that the court erred in overruling and denying defendants' plea in abatement * * *.

'2. For that the said ruling of the court on defendants' plea in abatement is contrary to the evidence presented thereon.'

We therefore will first consider the threshold question of the court's ruling on the pleas in abatement.

Section 232 of our Constitution of 1901 provides in parts pertinent to this review:

'No foreign corporation shall do any business in this state without having at least one known place of business and an authorized agent or agents therein, and without filing with the secretary of state a certified copy of its articles of incorporation or association. Such corporation may be sued in any county where it does business, by service of process upon an agent anywhere in the state. * * *' (Emphasis ours.)

Section 60 of Title 7 is found in Article 1 of Chapter 3, Code of Alabama 1940. Chapter 3 is entitled 'Venue,' and Article 1 thereunder is entitled 'Venue of Actions.'

In parts pertinent to this review, Section 60 of Title 7, Code of Alabama 1940, provides:

'A foreign corporation may be sued in any county in which it does business by agent or was doing business at the time the cause of action arose.'

In Sullivan v. Sullivan Timber Co., 103 Ala. 371, 15 So. 941, the difficulties experienced by the courts in resolving the question of jurisdiction over foreign corporations doing business in the state, and the power of a court to render a valid judgment against such corporations under such circumstances, prior to the enactment of constitutional and statutory provisions clarifying such jurisdictional questions, is thoroughly discussed, historically and procedurally. In that opinion the court appears to have considered the progenitor of Section 232 of our present Constitution, which progenitor was in verbiage the same as Section 232, as relating to jurisdiction.

In Pepperell Mfg. Co. v. Alabama National Bank, 261 Ala. 665, 75 So.2d 665, it was pointed out, however, that in a considerable number of our cases Section 232 has been treated as a venue provision and such connotation cannot now be questioned.

The court further observed:

'The terms 'jurisdiction' and 'venue' are often confused and loosely used. In its pure sense 'jurisdiction' means the power of a court to entertain and consider a cause, and render a binding judgment therein. 'Venue' refers to the court in which for the sake of convenience or policy considerations the cause is to be tried. Pepperell Mfg. Co. v. Alabama National Bank, 261 Ala. 665, 75 So.2d 665.'

In its broadest sense and considering its historical background, Section 232 in its origin would appear to be concerned primarily with jurisdiction over a foreign corporation rather than the venue of an action, though the inclusion of the words in Section 232, that a foreign corporation may be sued 'in any county where it does business' partakes of venue.

The loose use of 'venue' and 'jurisdiction' appear to result from the fact that in many of the cases the foreign corporation had qualified to do business in the state, or unquestionably was doing business in the state without qualifying to do so. No question of jurisdiction was really involved, only that of venue.

Since City Stores (Loveman's) was qualified to do business in Alabama and had a principal place of business in Montgomery, there can be no question of jurisdiction over the corporation. We think, therefore, that the question here presented is one of venue rather than jurisdiction.

If it were a question of jurisdiction, federal authorities would be controlling on the question of what constitutes 'doing business.' Ford Motor Co. v. Hall Auto. Co., 226 Ala. 385, 147 So. 603; Boyd v. Warren Paint & Color Co., 254 Ala. 687, 49 So.2d 559. We are aware of the doctrines articulated in International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, and McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223, to the effect that only a minimal contact or nexus by a foreign corporation with a state is sufficient to satisfy the due process requirements of the United States Constitution on the question of jurisdiction.

We pretermit consideration of whether Mulvaney's status with Loveman's and his single visit to Pike County under the hereinafter described conditions, were sufficient even under a jurisdictional concept, this for the reason that we are here concerned with venue. In other words, we deal with a problem arising under our venue statute, and not with a problem of constitutional import. See United States v. Scophony Corp., 333 U.S. 795, 68 S.Ct. 855, 92 L.Ed. 1091.

In Scophony, supra, the United States Supreme Court was considering a question of venue. The court pointed out that for venue purposes prior federal decisions had sloughed off the technical glosses surrounding the terms 'found' and 'carrying on business' and in their stead had substituted the practical and broader business conception of engaging in any substantial business operation.

We note here that even in those federal cases which seem to indicate a definite disposition to consider mere solicitation by a foreign corporation to be a sufficient connection with a state on which to base jurisdiction, such solicitation must be sufficiently continuous as to amount to a course of business. See Steinway v. Majestic Amusement Co., (10 CCA) 179 F.2d 681.

At the hearing below in support of their pleas in abatement, the defendants presented three witnesses, Arnold D. Unger, manager of Loveman's in Montgomery, William Schuchman, manager of the home furnishings department of Loveman's in Montgomery, and Frazier C. Raines, a deliveryman for the company. The plaintiff presented one witness, Edgar J. Mulvaney.

Unger testified that his first association with Loveman's in Montgomery began as manager in March 1968. Loveman's has no store, outlet, or resident agent in Pike County. The business of Loveman's in Montgomery is the buying and selling of merchandise.

The company advertises in Montgomery newspapers and over a Montgomery television station. People from outside of Montgomery County trade at Loveman's.

Purchases are sent to out of town customers by parcel post and by Loveman's delivery trucks.

Through Unger, the records of Loveman's showing shipments by parcel post, and deliveries by Loveman's trucks of merchandise purchased in the Montgomery store and sent to Pike County, for the period September 1968 through February 1969, were received in evidence. There were 48 such parcel post shipments, and 8 deliveries by truck, and 2 'pick ups' of merchandise to be returned.

Plaintiff further showed that Loveman's advertised in Montgomery newspapers and over a Montgomery television station, and such medium reached surrounding counties.

Largely, however, plaintiff's efforts to show that Loveman's did business in Pike County by agent was concerned with the sale of carpeting.

In this connection Unger's testimony on direct and cross-examination tended to show that Loveman's records fail to show any sales of carpets in...