Hagen v. Rapid American Corp.

• Decision Date: 22 May 1990
• Docket Number: No. 56858,56858
• Citation: 791 S.W.2d 452
• Parties: Charles HAGEN, Kenneth Hagen, Sharon Lamson, and Kay Walch, Plaintiffs/Appellants, v. RAPID AMERICAN CORPORATION, Defendant/Respondent.
• Court: Missouri Court of Appeals

Page 452

791 S.W.2d 452

Charles HAGEN, Kenneth Hagen, Sharon Lamson, and Kay Walch Plaintiffs/Appellants, v. RAPID AMERICAN CORPORATION, Defendant/Respondent.

No. 56858.

Missouri Court of Appeals,

Eastern District,

Division Four.

May 22, 1990.

Motion for Rehearing and/or Transfer to

Supreme Court Denied June 20, 1990.

Mark I. Bronson, St. Louis, for plaintiffs/appellants.

Lawrence Bovard Grebel, St. Louis, for defendant/respondent.

CARL R. GAERTNER, Judge.

The posture in which this appeal is presented to us is indeed extraordinary. The complexity of the facts disclosed by the underlying litigation is exceeded only by the jurisdictional problems generated, in part, by the procedures adopted by the parties in the court below.

Plaintiffs are the husband and children of decedent, Gloria Hagen. In 1982, plaintiffs filed a wrongful death action after Gloria's death from mesothelioma, a rare form of cancer caused by asbestos. Plaintiffs' petition named eighteen defendants--including Rapid American Corporation--alleging that defendants manufactured products containing asbestos that were used by Gloria's husband at his workplace in Missouri. Gloria developed cancer through exposure to asbestos when washing her husband's work clothes. This exposure, we are told, occurred during the 1940's as mesothelioma is characterized by a latency period of up to 40 years.

Plaintiffs served Rapid American with process at its New York office. Rapid American responded by moving for an order to quash plaintiffs' service due to a lack of personal jurisdiction. Before trial, plaintiffs stipulated to a complete severance of Rapid American from the case. Plaintiffs tried their case against the three remaining defendants, other defendants having either settled or been dismissed from the case. After a jury verdict, plaintiffs obtained a judgment of $1,780,000 against those three defendants jointly and severally. After trial, the court heard and granted Rapid American's motion to quash service and dismissed plaintiffs' petition against Rapid American without prejudice for lack of personal jurisdiction. Plaintiffs appeal this order.

Plaintiffs predicate their claim of personal jurisdiction over Rapid American upon the acts of Philip Carey Manufacturing Corporation. Plaintiffs allege that Philip Carey furnished asbestos products from 1948 through 1951 to the employer of Gloria's husband. Plaintiffs claim that Rapid American is the successor by merger to Philip Carey and therefore is subject to jurisdiction in Missouri under Missouri's Long Arm Statutes. The corporate history of Philip Carey has been described in sufficient detail during a prior, unrelated, dispute:

In 1888, the Philip Carey Manufacturing Corporation (Old Carey) was formed in Ohio. Effective June 1, 1967, Old Carey was merged with Glen Alden. On that same date, Glen Alden assigned all the assets and liabilities it acquired from Old Carey to a newly formed subsidiary, Philip Carey Manufacturing Corporation (New Carey). In this transaction, New Carey agreed to assume all the liabilities of Old Carey and agreed to indemnify Glen Alden against any such liabilities, including the cost of defense or settlement of any such liabilities. After this transaction Glen Alden continued in operation. Glen Alden itself has never manufactured or sold asbestos, and plaintiff does not contend otherwise.

In 1968, Philip Carey Manufacturing Corporation changed its name to Philip Carey Corporation. In 1970, Philip Carey Corporation merged into Briggs Manufacturing Company and the surviving corporation adopted the name Panacon Corporation. In 1972, Celotex Corporation purchased the Panacon Corporation, and assumed all its liabilities.

Tretter v. Rapid American, 514 F.Supp. 1344, 1346 (E.D. Mo.1981). After Celotex purchased Panacon from Glen Alden, Glen Alden and Rapid American merged. At the time of this merger, Glen Alden had divested all asbestos-related stocks and subsidiaries. Even so, plaintiffs claim that the acts of Old Carey subject Rapid American to personal jurisdiction under Missouri's Long Arm Statutes, §§ 506.500 RSMo. 1986 and 351.633 RSMo. 1986.

We are concerned here with wending our way through the tortuous path of corporate mergers, acquisitions and divestitures not in an effort to find an unbroken path through which liability for the acts of Old Carey may be imposed forty years later upon Rapid American. Rather, the question here presented is whether, by following the same path, we may impose upon Rapid American the jurisdictional effect of Old Carey's forty year old contacts with the state of Missouri. We perceive significant differences in the two journeys. In the first, we search for gaps or obstructions in the path which would interrupt or divert the flow of liability expressly assumed by contract or imposed by operation of law. In the latter, we look not only for interruptions and diversions, but also to the length of the journey and the convolutions in the path between Old Carey and Rapid American in order to ascertain whether the path can surmount the test of due process under the Fourteenth Amendment which requires that a defendant have purposeful minimum contacts with the forum state and "should reasonably anticipate being haled into court there," Worldwide Volkswagen Corp. v. Woodson, 444 U.S. 286, 298, 100 S.Ct. 559, 567, 62 L.Ed.2d 490, 501 (1980), so as to avoid offending "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95, 102 (1945). ¹ Nonetheless, dispositive of this appeal is the preliminary issue of our jurisdiction to consider the merits of the trial court's order.

Rapid American has moved to dismiss this appeal on the grounds that an order quashing service and dismissing for lack of in personam jurisdiction is, by definition, a non-appealable dismissal without prejudice. Rule 67.03. Sua sponte, we are constrained to address the additional jurisdictional question of whether plaintiffs are aggrieved parties entitled to appeal pursuant to § 512.020 RSMo. 1986. We first address this latter question.

The right of appeal exists solely by virtue of statute. Harris v. Union Electric Co., 685 S.W.2d 607, 611 (Mo.App.1985). Section 512.020 grants the right of appeal only to a "party to the suit aggrieved by any judgment of any trial court in any civil cause." A party is "aggrieved" when the judgment operates prejudicially and directly on his personal or property rights or interests and such effect is an immediate and not merely a possible remote consequence. Hertz Corp. v. State Tax Comm'n, 528 S.W.2d 952, 954 (Mo.banc 1975); Horace Mann Ins. Co. v. Riley, 716 S.W.2d 820, 822 (Mo.App.1986).

Plaintiffs are not parties aggrieved by the order they seek to overturn on this appeal. First, by stipulating to the severance of Rapid American from the trial of their single indivisible cause of action against the...