Fisk v. Wellsville Fire Brick Co.

• Decision Date: 12 June 1941
• Docket Number: 37527
• Citation: 152 S.W.2d 113,348 Mo. 73
• Parties: Earl R. Fisk v. Wellsville Fire Brick Company, a Corporation, Appellant
• Court: Missouri Supreme Court

152 S.W.2d 113

348 Mo. 73

Earl R. Fisk v. Wellsville Fire Brick Company, a Corporation, Appellant

No. 37527

Supreme Court of Missouri

June 12, 1941

Appeal from Montgomery Circuit Court; Hon. R. A. Breuer Judge.

Reversed.

S S. Nowlin, Glover E. Dowell and Wayne C. Smith Jr., for appellant.

(1) It is a general doctrine that when a suit brought in one state upon a judgment rendered by a court of another state, the jurisdiction of the court rendering such judgment may be challenged and recitals in the record of such judgment on the subject of jurisdiction, may be controverted by extraneous evidence. Hall v. Wilder Mfg. Co., 316 Mo. 812, 293 S.W. 760; Marx v. Fore, 51 Mo. 69; Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Stuart v. Dickinson, 290 Mo. 516, 235 S.W. 446; Barlow v. Steele, 65 Mo. 611; Bonnett-Brown Sales Service v. Utt, 323 Mo. 589, 19 S.W.2d 888; Grover Sewing Machine Co. v. Radcliffe, 137 U.S. 287; Cooper v. Newel, 173 U.S. 555. (2) Notice given by mail, though in accordance with the provisions of the Workmen's Compensation Act, does not confer jurisdiction on the Industrial Commission of Illinois to proceed as against a nonresident corporation. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Elk River Coal & Lbr. Co. v. Funk, 271 N.W. 204, 222 Iowa 222, 110 A. L. R. 1415; Dull v. Blackmon, 169 U.S. 243, 42 L.Ed. 73; Baker v. Baker, Eccles & Co., 242 U.S. 394, 37 S.Ct. 152, 61 L.Ed. 386; Goldey v. Morning News, 156 U.S. 518, 39 L.Ed. 517. (3) The courts of one state are not bound to give full faith and credit to the judgments of a sister state where the judgment is rendered in violation of due process of law. Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565; Baker v. Baker, Eccles & Co., 242 U.S. 394, 37 S.Ct. 152, 61 L.Ed. 386; Flexner v. Farson, 268 Ill. 435, 109 N.E. 327, affirmed in 248 U.S. 289, 63 L.Ed. 250; Western Assur. Co. v. Wolden, 238 Mo. 49, 141 S.W. 595; Hall v. Wilder Mfg. Co., 316 Mo. 812, 293 S.W. 760; St. Clair v. Cox, 106 U.S. 350, 27 L.Ed. 222; Bonnett-Brown Sale Service v. Utt, 323 Mo. 589, 19 S.W.2d 888. (4) The question of whether a foreign corporation is "doing business" within a state is one of jurisdiction, involving due process under the Federal Constitution. And, the courts of a state have no power to render a personal judgment against a foreign corporation "not doing business" within the State. A judgment so rendered is in violation of the due process clause and is void. Hall v. Wilder Co., 316 Mo. 812, 239 S.W. 760; Elk River Coal & Lbr. Co. v. Funk, 271 N.W. 204, 110 A. L. R. 1415; International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479; Buel v. Boston & M. Ry. Co., 344 Ill. 11; State ex rel. v. Rutledge, 331 Mo. 1015, 56 S.W.2d 28; State ex rel. v. Hogan, 232 Mo.App. 291, 103 S.W.2d 495; 23 Am. Jur. 335. (5) A foreign corporation is amenable to process to enforce a personal liability, in the absence of consent, only if it is doing business within the State in such manner and to such extent as to warrant the inference that it is present there. Hall v. Wilder Mfg. Co., 316 Mo. 812, 239 S.W. 760; Philadelphia & Reading Ry. v. McKibbin, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710; Painter v. Colo. Springs & C. C. Ry. Co., 127 Mo.App. 248; Goldey v. Morning News, 156 U.S. 518; Scene-in-action Corp. v. Knights of Ku Klux Klan, 261 Ill.App. 153; Riverside & Dan River Cotton Mills v. Menefee, 237 U.S. 139, 59 L.Ed. 910, 35 S.Ct. 579; Pembleton v. Ill. Commercial Men's Assoc., 289 Ill. 99; Booz v. Texas & Pac. Ry. Co., 250 Ill. 376; Buel v. Boston & M. Ry. Co., 344 Ill. 11; State ex rel. v. Hogan, 232 Mo.App. 291, 103 S.W.2d 497. (6) The Illinois Legislature did not designate in the Workmen's Compensation Act of the State of Illinois any person upon whom substituted service could be had as to nonresident employers. And, after the Wellsville Firebrick Company had ceased its work in Illinois and had withdrawn from the State, valid process or notice of proceedings before the Industrial Commission or courts of Illinois could not be had by mailing notice of proceedings to the Wellsville Firebrick Company in the State of Missouri. A judgment procured upon such notice is void. Elk River Coal & Lumber Co. v. Funk, 110 A. L. R. 1415; Frick-Reid Supply Co. v. Consolidated Adjustment Co., 197 Ill.App. 303. (7) That which was done in violation of the due process clause is not entitled to be enforced under the full faith and credit clause. Hall v. Wilder Mfg. Co., 293 S.W. 760; Riverside & D. River Cotton Mills v. Menefee, 237 U.S. 189, 59 L.Ed. 910, 35 S.Ct. 579.

Baker & Baker and George P. Adams for respondent.

(1) The courts of Illinois had jurisdiction of the person of appellant, because, (a) appellant was "doing business" in Illinois at the time respondent was injured. 21 R. C. L., Process, pp. 1341-1343, secs. 92, 93; 23 Amer. Juris., p. 378, sec. 380; Kansas City Structural Steel Co. v. Arkansas, 269 U.S. 148, 70 L.Ed. 204, 46 S.Ct. 5. (b) It could not escape jurisdiction by withdrawing from State as to action accruing while it was doing business in the State. 21 R. C. L., Process, p. 1344, sec. 94; 23 Amer. Juris., p. 500, sec. 495; Old Wayne Mut. Life Assn. v. McDonough, 204 U.S. 8, 51 L.Ed. 345, 27 S.Ct. 236. (c) When appellant did business in Illinois, although it took no steps to be admitted as a foreign corporation, it thereby agreed to submit to the laws of Illinois, to the jurisdiction of the courts of Illinois, to the Workmen's Compensation Law of Illinois, and to the law relative to substituted service. It is now estopped to deny the force and effect of such laws and the validity of service thereunder. 23 Amer. Juris., pp. 498, 501, sec. 495, Vol. 12, p. 295, sec. 599; American Ry. Express Co. v. Kentucky, 273 U.S. 269, 71 L.Ed. 639, 47 S.Ct. 353. (d) Substituted service upon a state officer designated by statute will support a judgment in personam against a foreign corporation based upon acts of foreign corporation while doing business in the State. 12 Amer. Juris., Constitutional Law, p. 295, sec. 599; 21 R. C. L., Process, p. 1344, sec. 94; 34 C. J.. pp. 1148, 1149, sec. (1627) h. h.; Washington ex rel. Bond & Goodwin v. Superior Court, 289 U.S. 361, 77 L.Ed. 1256, 53 S.Ct. 624, 89 A. L. R. 653; Hess v. Pawloski, 274 U.S. 352, 71 L.Ed. 1091, 47 S.Ct. 632. (e) When appellant made payments to respondent under the Workmen's Compensation Act and when it requested its insurer to appear and defend complaint, it took steps under the law and authorized substituted service provided in Sec. 19i of the Act. United Air Lines v. Industrial Comm., 4 N.E.2d 487. (f) When appellant's insurer, at the request of appellant, appeared before the arbitrator its appearance was the appearance of appellant. Rucks-Brandt Const. Co. v. Price, 23 P.2d 690. (g) In matters before an administrative body such as the Illinois Industrial Commission, there is not the strict requirement as to issuance and service of process customary in lawsuits. Ashbury Truck Co. v. Railroad Commission, 52 F.2d 263, 53 S.Ct. 94; State ex rel. State Board of Milk Control v. Newark Milk Co., 179 A. 117. (2) When a jury is waived, cause tried by court and no declarations of law are asked or given, finding and judgment of court will be upheld, if there is any substantial evidence to support it. McBride v. Bank, 330 Mo. 259, 48 S.W.2d 922. (3) When cause is submitted to court, jury waived, the court's finding on controversial issues of fact is binding on the appellate court. Marsden v. Nipp, 325 Mo. 822, 30 S.W.2d 77. (4) It is presumed that a foreign court of record of general jurisdiction had jurisdiction of parties and subject matter. Western Assur. Co. v. Walden, 238 Mo. 49, 141 S.W. 595; Lieber v. Lieber, 239 Mo. 1, 143 S.W. 458; Severson v. Dickinson, 216 Mo.App. 572, 259 S.W. 518; Woods v. Washington Fidelity Natl. Ins. Co., 113 S.W.2d 121. (5) In the absence of proof to the contrary such presumption is conclusive. Western Assur. Co. v. Walden, 238 Mo. 49, 141 S.W. 595; Toler v. Coover, 335 Mo. 113, 71 S.W.2d 1067. (6) He who asserts lack of jurisdiction of court of record of general jurisdiction must produce evidence which is positive, convincing, substantial, and worthy of belief. Woods v. Ins. Co., 113 S.W.2d 121. (7) A judgment rendered by a court in Illinois valid in Illinois will be given full faith and credit in Missouri, although a judgment obtained by the same method in Missouri would be void. O'Connell v. Smith, 131 S.W.2d 730; George Edward Day & Sons v. Robb, 139 S.W.2d 533. (8) Recitals in judgment itself as to jurisdictional facts are presumed to be true. Williams v. Williams, 53 Mo.App. 617; Woods v. Ins. Co., 113 S.W.2d 121.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

This is a suit on an Illinois judgment for $ 2555.18. The trial court found for plaintiff and defendant appealed to the St. Louis Court of Appeals. The Court of Appeals transferred to the Supreme Court on the theory that the construction of the due process clause of the Fourteenth Amendment of the Federal Constitution is inherently involved. [See Fisk v. Wellsville Fire Brick Company (Mo. App.), 145 S.W.2d 451.]

Defendant is a Missouri corporation and operates a fire brick plant just outside Wellsville, Montgomery County, Missouri. In October, 1936, defendant sold an order of fire brick to the Gardner-Denver Company, Quincy, Illinois, to be used in the construction of core ovens. In order to make the sale defendant agreed to and did construct the ovens at Quincy, and sent its foreman, Harry Miller, to Quincy, to do the work. Miller was given authority to employ the necessary labor and did so. He commenced work on October 8th and finished December 14, 1936, and immediately returned to Wellsville, Missouri. This work was the...