Green v. Equitable Powder Mfg. Co.

• Citation: 99 F. Supp. 237
• Decision Date: 10 August 1951
• Docket Number: Civ. No. 928.
• Parties: GREEN v. EQUITABLE POWDER MFG. CO.
• Court: U.S. District Court — Western District of Arkansas

99 F. Supp. 237

GREEN v. EQUITABLE POWDER MFG. CO.

Civ. No. 928.

United States District Court, W. D. Arkansas, Fort Smith Division.

August 10, 1951.

Heartsill Ragon and Paul E. Gutensohn (of Gutensohn & Ragon), Fort Smith, Ark., for plaintiff.

Cecil R. Warner (of Warner & Warner), Fort Smith, Ark., for intervenor.

Bruce H. Shaw of Shaw & Shaw, Fort Smith, Ark., for defendants.

JOHN E. MILLER, District Judge.

The original complaint against the defendant, Equitable Powder Manufacturing Company, was filed on October 12, 1950. To this complaint the defendant filed a motion to dismiss, which motion was considered and determined in accordance with an opinion of the court filed November 30, 1950. See Green v. Equitable Powder Manufacturing Company, D.C.W.D.Ark., 94 F.Supp. 126.

Following the disposition of the motion to dismiss, the then defendant filed answer on December 6, 1950.

On December 20, 1950, the plaintiff asked leave to file an amended complaint, which leave was granted, and the amended complaint was filed. The plaintiff adopted by reference substantially all of the allegations contained in the original complaint and, in addition thereto, alleged that the offending electrical blasting cap was manufactured by the Western Cartridge Company, a division of Olin Industries, Inc.; that the Olin Industries, Inc., is a corporation organized and existing under the laws of the State of Delaware and is not authorized to do business in the State of Arkansas; that the defendant is a subsidiary of the said Olin Industries, Inc., having the same employees, directors, officers and offices as the said Western Cartridge Company and Olin Industries, Inc.; that the three corporations are engaged in the manufacture, sale and distribution of electrical blasting caps and were organized to carry on a single common enterprise; that the Western Cartridge Company manufactures the caps while the Olin industries, Inc., directs and coordinates manufacture and sale of the caps, with the defendant, Equitable Powder Manufacturing Company, selling the caps in the State of Arkansas as well as elsewhere.

In Paragraph 4 of the amended complaint the plaintiff alleged: "The said companies are so organized and controlled and their affairs and activities so conducted as to make each the agent of the others and constitute it a mere instrumentality or adjunct in the business enterprise of manufacturing and selling electrical blasting caps, and in reality are all one and the same corporation. The said corporations are so organized as to constitute a wrong and injustice to third persons as well as this plaintiff and as to contravene public policy. As a result thereof, the corporate identity of each has been lost in regard to the plaintiff's injury, and for the purposes herein are to be considered as one and the same legal entity. The defendant, Equitable Powder Manufacturing Company, is, therefore, liable to this plaintiff for any and all injuries proximately caused by any or all of the acts of negligence and for any and all breaches of implied and expressed warranties herein alleged resulting from either the manufacture or sale of said defective cap."

To the amended complaint the then defendant filed a motion to dismiss on January 11, 1951, and the court, after considering the motion, disposed of same in the manner set forth in an opinion filed January 27, 1951. See Green v. Equitable Powder Manufacturing Company, D.C.W.D. Ark., 95 F.Supp. 127.

Following the disposition of that motion, the defendant filed an answer to the amended complaint on February 5, 1951.

On March 5, 1951, upon application of the plaintiff, leave was granted to file an amendment to his amended complaint and, on the same date, the said amendment was filed making Olin Industries, Inc., a Corporation, a party defendant.

On March 23, 1951, the defendant Olin Industries, Inc., filed a motion to dismiss the amendment to the amended complaint for lack of jurisdiction over the person of said defendant. Upon the filing of this motion, the court on March 24, 1951, entered an order reciting that, since a consideration of the motion would require the introduction of testimony equivalent to a full hearing on certain phases of the merits of the case, the consideration of the motion was deferred and postponed until a trial of the case on its merits, without prejudice to the defendant, Olin Industries. Following the entry of that order, the defendant, Olin Industries, Inc., filed its answer reserving therein its objection to the service of a summons and without waiving its motion to dismiss for lack of jurisdiction over said defendant.

Soon after this answer was filed, a conference was had with the attorneys for the plaintiff and defendant at which the order of March 24, 1951, was discussed. The attorneys for plaintiff insisted that the court consider and determine the motion of the defendant, Olin Industries, Inc., to dismiss, but no order was entered as a result of the conference and it was agreed that the attorneys for the respective parties would proceed to take depositions on the question of whether the defendant, Olin Industries, Inc., was doing or had been doing business in Arkansas so as to subject it to personal service of process. The attorneys also discussed the possibility of stipulating some of the facts in reference thereto, but no such stipulation was filed and on July 10, 1951, the plaintiff filed a response to the motion and that part of the answer which seeks to reserve the right of the determination of the motion until the case has been tried on its merits.

In the response the plaintiff alleged that the summons issued and the return thereon are entirely proper and that the record does not contain any matter sufficient to overcome the presumption of the truthfulness of the return of the Marshal on the summons. When this contention was made by the plaintiff, the court by letter requested the respective attorneys to appear for a conference to consider, among other things, the possibility of obtaining admissions of fact and documents to avoid the production of unnecessary evidence and, by order, a hearing on the motion of the defendant, Olin Industries, Inc., was set for August 2, 1951, but, at the request of the respective attorneys, the date for hearing was changed to August 7, 1951. The court further suggested that the respective attorneys confer immediately and that they submit to each other a list of the matters, facts and documents that they might desire to be admitted.

On July 24, 1951, the plaintiff filed a formal request for admission of facts on the question of whether the defendant, Olin Industries, Inc., was engaged in business in the State of Arkansas sufficient to make it amenable to service of summons.

On August 6, the day before the date for hearing on the motion, the defendant filed a response to the plaintiff's request for admissions of fact in which it stated that it was unable at that time to respond to all of the plaintiff's requests but that it would be in a position to respond after a hearing before the court and after the court had passed on the relevancy of the factual material requested by plaintiff.

All parties appeared by their respective attorneys on the date set for the hearing, August 7, 1951, and a verbal response to the request for admissions of fact was made by Mr. Russell R. Casteel, Secretary of Olin Industries, Inc. The response was taken by the Court Reporter and, at the conclusion thereof, it was agreed by all parties that such response should be considered as a compliance with the terms of Rule 36, Federal Rules of Civil Procedure, 28 U.S. C.A.

Thereupon, the motion to dismiss was submitted upon the record as thus made, together with the depositions of Ernest and Dorothy Lind and the exhibits thereto taken by plaintiff on June 25, 1951.

It will be seen from the brief recital of the above facts that the plaintiff has encountered considerable difficulty in alleging a cause of action to which the defendant could be required to answer. It is not necessary to elaborate further on the proceedings because any one interested may consult the prior opinions of the court hereinbefore cited. However, the Judge of this Court entertains the hope that the case may be brought to issue and tried upon its merits before he reaches the age of retirement or before his mental and physical strength is entirely exhausted by a consideration of the various amendments and motions filed by the able, industrious, young and vigorous attorneys for the respective parties.

Service of summons issued on the amendment to the amended complaint was served on the defendant, Olin Industries, Inc., in the manner provided by Act 347 of the Acts of Arkansas for the year 1947, Section 27-340, Arkansas Statutes 1947, and the provisions of Rule 4(d)(7), Federal Rules of Civil Procedure, and was also served upon "Omar G. Nichols at his residence, 1609 Cumberland, as Arkansas agent and employee of the defendant, Olin Industries, Inc." Proof has been made and appears in the record that the service of the summons was in strict accordance with the provisions of said Act 347, supra, but the sufficiency of the service is challenged by the defendant on the ground, "That the defendant is a foreign corporation organized under the laws of the State of Illinois and is not subject to service of process within the Western District of Arkansas." The plaintiff invokes the jurisdiction of the court solely on diversity grounds. Rule 4 (d) (7), supra, provides that service of process on a foreign corporation is valid if made in the manner prescribed by any statute of the United States or in the manner prescribed by law of the state in which the service is made. There is no Federal statute applicable and, service having been attempted under the Arkansas procedure, the validity of the service is to be determined by the requirements for service in this state. The first is a...