Gordon v. John Deere Company, 71-1824 Summary Calendar.

• Decision Date: 16 November 1971
• Docket Number: No. 71-1824 Summary Calendar.,71-1824 Summary Calendar.
• Citation: 451 F.2d 234
• Parties: Abner Wynn GORDON, Plaintiff-Appellant, v. The JOHN DEERE COMPANY et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

451 F.2d 234 (1971)

Abner Wynn GORDON, Plaintiff-Appellant, v. The JOHN DEERE COMPANY et al., Defendants-Appellees.

No. 71-1824 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

November 16, 1971.

Roderic G. Magie, of Levin, Warfield, Graff, Mabie & Rosenbloum, P. A., Pensacola, Fla., for plaintiff-appellant.

William H. Clark, Harrell, Wiltshire, Bozeman, Clark & Stone, Pensacola, Fla., for defendants-appellees.

Before JOHN R. BROWN, Chief Judge, and INGRAHAM and RONEY, Circuit Judges.

PER CURIAM:

This appeal presents the question of whether Florida Statute, Section 48.182, F.S.A., permitting service of process on non-residents committing a wrongful act outside Florida which causes injury within the State can be applied to wrongful acts which occurred before its enactment. There being no precedent of the Florida Supreme Court on this issue, we deem it better to ask the Florida Supreme Court to provide us with the answer to this question rather than guessing at what their answer might be.¹

The following certificate is primarily a result of agreement between the parties.

Certificate from the United States Court of Appeals for the Fifth Circuit to the Supreme Court of Florida, Pursuant to § 25.031, Florida Statutes, 1959, and Rule 4.61, Florida Appellate Rules.

To The Supreme Court of Florida and the Honorable Justices thereof:

It appears to the United States Court of Appeals for the Fifth Circuit that the above styled case in this Court involves a question or proposition of the law of the State of Florida which is determinative of the cause, and there appear to be no clear, controlling precedents in the decisions of the Supreme Court of Florida. This Court hereby certifies the following question of law to the Supreme Court of Florida for instructions concerning said question of law, based on the facts recited herein, pursuant to § 25.031, Florida Statutes, 1959 F.S.A., and Rule 4.61, Florida Appellate Rules, 32 F.S.A., as follows:

(1) Style of the Case

The style of the case in which this certificate is made is Abner Wynn Gordon, appellant, versus Deere & Company, a Delaware corporation, John Deere Company of Baltimore, a Maryland corporation, and John Deere Company of St. Louis, a Missouri corporation, appellees, case No. S71-1824, United States Court of Appeals for the Fifth Circuit, such case being an appeal from the United States District Court for the Northern District of Florida, 320 F. Supp. 293.

(2) Statement of the Facts

The original complaint alleges that on or about July 19, 1965, Abner Wynn Gordon was injured by a tractor and pan, commonly called a scraper unit, which unit was defective in that it was not equipped with proper safety devices. The unit was manufactured by Deere & Company, a Delaware corporation, at Moline, Illinois, and shipped to Shelton-Witt Equipment Corporation, Lynchburg, Virginia, by order of John Deere Company of Baltimore, a Maryland corporation, a subsidiary of Deere & Company and a distributor of Deere products.

Shelton-Witt, a retail John Deere dealer, subsequently sold the unit to Wiley N. Jackson Company of Roanoke, Virginia, such sale taking place in Virginia. Jackson later transported the unit to Escambia County, Florida, where it was in use by employees of that company on the date of the accident.

Neither Deere & Company nor John Deere of Baltimore is qualified to do business in Florida. Prior to July, 1967, John Deere Company of St. Louis, a Missouri corporation and a subsidiary of Deere & Company, was the distributor of all Deere products in Florida. Since July, 1967, it has distributed Deere industrial products at wholesale to retail dealers in Florida and John Deere of Baltimore has similarly distributed Deere industrial products in Florida. Thus, at the time of the accident, John Deere of Baltimore was not distributing any products in Florida, nor was it doing any business in Florida. None of the defendants had any connection with Wiley N. Jackson Company, and after the sale to Jackson none had any control over the unit or its subsequent transportation and use.

The original complaint named The John Deere Company and John Deere Company of St. Louis as defendants. Service of process was made on John Deere of St. Louis by serving a statutory resident agent in Jacksonville, plaintiff being under the impression at that time that John Deere of St. Louis was the distributor of the scraper in question.

There is no entity known as The John Deere Company. References in the style of the case to The John Deere Company are merely pro forma copying of the original style of the case. The John Deere Company is not a party and does not exist.

When it was discovered that the scraper had been manufactured by Deere & Company and distributed to a retail dealer in Virginia by John Deere of Baltimore,...