Connecticut Tool & Mfg. Co. v. Bowsteel Distributors, Inc.

• Decision Date: 04 March 1963
• Docket Number: No. 84384,84384
• Citation: 24 Conn.Supp. 290,190 A.2d 236
• Court: Connecticut Court of Common Pleas
• Parties: CONNECTICUT TOOL AND MANUFACTURING COMPANY, Inc. v. BOWSTEEL DISTRIBUTORS, INC.

Page 236

190 A.2d 236

24 Conn.Supp. 290

CONNECTICUT TOOL AND MANUFACTURING COMPANY, Inc. v. BOWSTEEL DISTRIBUTORS, INC.

No. 84384.

Court of Common Pleas of Connecticut, Hartford County.

March 4, 1963.

Alcorn, Bakewell & Smith, Hartford, for plaintiff.

Robinson, Robinson & Cole, Hartford, for defendant.

LUGG, Judge.

The subject of controversy raised by this plea in abatement is the application to the instant facts of § 33-411 of the General Statutes of Connecticut, entitled 'Service of process on foreign corporation'. This is part of the new Stock Corporation Act, adopted by the 1959 session of the General Assembly effective 1 January 1961. It was amended by §§ 90 and 91 of Public Act No. 327 of the 1961 session, effective 1 October of the latter year. No case affecting the present issue has yet been decided by any of the courts of this state, Nevins v. Revlon, Inc., 23 Conn.Sup. 314, 182 A.2d 634 (1962), the sole case citing the section, being on another point.

The following facts are found. The defendant is a New Jersey corporation engaged in the manufacture and sale of specification material products. It buys its raw materials from suppliers such as The Bethlehem Steel Company and The Republic Steel Company and serves customers constituting a worldwide trade. One of its employees, one Lehmacker, is assigned to the six New England states, in which he visits potential customers. He lives in the state of Connecticut, although not required to do so in the course of his employment by the company. The latter has seven different 'Enterprise' telephone numbers, each in a different city in this state. It advertises in the yellow pages of the telephone directories in the cities where the 'Enterprise' numbers are listed. The defendant prepares and distributes to potential customers a stock list which advises them of the products it is prepared to sell and is intended for use by them in ordering. It accepts orders at Linden, New Jersey, and ships the goods to its customers. It has been selling its products in Connecticut for about fourteen years. Its customers are worldwide, and it has about one hundred of them in this state, examples being Pratt and Whitney Aircraft, Hamilton Standard Propeller, United Aircraft and Sikorsky Aircraft. Its gross sales in Connecticut in 1961 amounted to about one-half a million dollars, and the indications are that its gross in 1962 will equal the same.

Lehmacker's function is that only of a salesman. He makes business calls on various companies and takes their appropriate officers to golf, luncheons and dinners in connection with the company's business. He has a car which he uses in the pursuit of his employment, and the company reimburses him for travel expenses at the rate of $.08 a mile. He occasionally calls in orders directly to the company, although they are usually transmitted by purchase orders directly to the defendant by the customer. His job is to improve customer relations, and in addition to visiting and entertaining customers he discusses complaints with them. Other customers of the defendant in this state include the National Aeronautic Company, which has done business with the defendant for about twelve years. It has been called on by Lehmacker, who has invited its purchasing agent out socially, which is a recognized form of solicitation. The defendant's agent, Lehmacker, has continually solicited this company as well as others in Connecticut. The Fenn Manufacturing Company receives visitations from Lehmacker about every eight or nine weeks. He solicits it for orders and entertains its officers at lunch and golf. Complaints of the company are discussed with him. These patterns of conduct by the defendant are the same as those on the part of other industries similar to the defendant.

The plaintiff is a Connecticut corporation with its principal place of business in this state. It is a small company whose gross annual sales are about $150,000 to $200,000. There are quite a few groups of this size in Connecticut engaged in making aircraft and missile parts. The purchases made from the defendant by the plaintiff are of a general pattern. The plaintiff is a small company and placed the following orders with the defendant: 1955, $5; 1957, $59; 1960, $252.87. It too is solicited by Lehmacker, and Lehmacker's activities as a salesman as to it are typical of those engaged in by similar businesses. The product ordered from the defendant by the plaintiff was consumed at its factory in New Britain, Connecticut, in the course of its manufacturing activities. The basis of this action is false and fraudulent misrepresentations and warranties to the plaintiff by the defendant concerning the product so ordered and consumed.

The defendant's initial point involves a technical matter, namely, that jurisdiction over it can be asserted only under subsection (c) of § 33-411 and that therefore subsection (d) of the same section applies. 'In any action brought under subsection (b) or (c) of this section or under subsection (e) of section 33-371, the secretary of the state shall be deemed the agent and attorney of the corporation in this state and service of process on such corporation shall be made as provided in subsection (a) of this section, except that the secretary of the state shall address the copy thereof to the corporation at its office as shown in the official registry of the state of its incorporation, which address shall be set forth in the writ or other process.' § 33-411(d). The address is not set forth in the writ as required, although a purported amendment was filed after the original service was made. Defendant asserts that this is a jurisdictional defect and hence not curable by amendment. Its citations do not support its contention. In both Hyde v. Richard, 145 Conn. 24, 138 A.2d 527 (1958), and Fitz-Simmons v. International Ass'n. of Machinists, 125 Conn. 490, 7 A.2d 448 (1939), service was made upon the wrong person, i. e., one other than the person specified by the statute involved. In Galvin v. Birch, 97 Conn. 399, 166 A. 908 (1922), an amendment was refused because no complaint accompanied the writ. Whether the amendment should be allowed or not is not now before us, and in the view we take of the case, its effect is academic.

We hold that the failure to include the address in the writ is embraced within the intendment of § 52-123, 'Circumstantial defects not to abate pleadings': 'No writ, pleading, judgment or any kind of proceeding in court or course of justice shall be abated, suspended, set aside or reversed for any kind of circumstantial errors, mistakes or defects, if the person and the cause may be rightly understood and intended by the court.' This statute applies to circumstantial defects attacked by pleas in abatement. New Haven Loan Co. v. Affinito, 122 Conn. 151, 188 A. 75 (1936); Schroeder v. Tomlinson, 70 Conn. 348, 39 A. 484 (1898); Draper v. Moriarty, 45 Conn. 476 (1878); Wilcox v. Chambers, 34 Conn. 179 (1867). The defect complained of does not prevent this cause from being 'rightly understood and intended by the court.' Furthermore, no injustice to the defendant is apparent, since it obviously received notice of the inception of the action.

The next point to be discussed is whether the defendant was amenable to service under § 33-411(b), which reads: 'Every foreign corporation which transacts business in this state in violation of section 33-395 or 33-396 shall be subject to suit in this state upon any cause of action arising out of such business.' Section 33-395 is not applicable, since the defendant is not one of the types of corporations therein listed. Section 33-396, however, is another matter. It reads, in part: 'No foreign corporation except an insurance or surety or indemnity company shall transact business in this state until it has procured a certificate of authority so to do from the secretary of the state.' The defendant quickly dismisses this as inapplicable, claiming it is exempted by § 33-397, the material portion (subsection [b]) of which reads: 'Without excluding other activities which may not constitute transacting business in this state, a foreign corporation shall not be considered to be transacting business in this state, for the purposes of this chapter, by reason of carrying on in this state any one or more of the following activities: * * * (8) transacting business in interstate commerce; * * *.' This contention puts a false construction on these statutory passages. What the defendant is saying is this: If a corporation is carrying on in this state any one or more of the nine activities listed in § 33-397(b), it is therefore not transacting business in Connecticut. Obviously, the section has not and does not intend to have any such result. What it does mean is this: A foreign corporation shall not be considered to be transacting business in this state solely because it carries on in this state one or more of the enumerated activities. This does not exclude a finding that a foreign corporation transacts business in this state if its other activities lead to that conclusion.

Examination of the recent statutory trend on the subject reveals it to be in the direction of expanding jurisdiction over foreign corporations. McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957); 18 Fletcher, Corporations § 8711. This is certainly true in Connecticut. 'There are no Connecticut cases which construe the clause 'which transacts business in this state' in § 52-59a, the Connecticut statute * * * [on service of process on nonresidents doing business in Connecticut], but the apparent purpose of this legislation was to provide a method for obtaining jurisdiction over foreign corporations and others which had not formally designated the secretary of the state an agent for service of process, but which, nevertheless, had engaged in sufficient activity in the state to warrant their amenability...