Harford v. Smith

• Decision Date: 19 August 1966
• Docket Number: Civ. A. No. 1587-W.
• Citation: 257 F. Supp. 578
• Court: U.S. District Court — Northern District of West Virginia
• Parties: Paulette J. HARFORD and Oris Harford, Plaintiffs, v. Gilbert P. SMITH, and Kathryn A. Smith, Defendants. Gilbert P. SMITH, and Kathryn A. Smith, Third-Party Plaintiffs, v. BUYRITE MERCHANDISING COMPANY, a corporation, doing business as the Gas House-Home Gas Equipment Company, Third-Party Defendant.

257 F. Supp. 578

Paulette J. HARFORD and Oris Harford, Plaintiffs, v. Gilbert P. SMITH, and Kathryn A. Smith, Defendants.

Gilbert P. SMITH, and Kathryn A. Smith, Third-Party Plaintiffs, v. BUYRITE MERCHANDISING COMPANY, a corporation, doing business as the Gas House-Home Gas Equipment Company, Third-Party Defendant.

Civ. A. No. 1587-W.

United States District Court N. D. West Virginia.

August 19, 1966.

Carl B. Galbraith, Wheeling, W. Va., for plaintiffs.

Richard H. Talbott, Jr., Elkins, W. Va., for third-party plaintiffs.

Richard H. Talbott, Jr., Elkins, W. Va., for defendants.

L. Baker Fowler, Elkins, W. Va., for third-party defendants.

MAXWELL, Chief Judge.

Paulette J. Harford and Oris Harford first instituted this civil action against Gilbert P. Smith and Kathryn A. Smith, alleging personal injuries to Paulette J. Harford when a bottled gas cooking stove exploded at a Davis, West Virginia, motel owned by the Smiths, who had rented facilities to the Harfords. This original complaint alleged negligence and breach of warranty.

Thereafter, the Smiths filed a thirdparty complaint against Buyrite Merchandising Company, an Ohio corporation, doing business as the Gas House-Home Gas Equipment Company. This complaint also alleged negligence and breach of warranty. Service of process was made upon the Auditor of the State of West Virginia, pursuant to Rules 4(d) (3) and (7) of the Federal Rules of Civil Procedure and to the West Virginia Code, Chapter 31, Article 1, Section 71 (Michie's ed. 1961, § 3083).

Buyrite now has filed a motion to quash this service of process, contending that it was not doing business in the state and that acceptance of service by the state on its behalf was void.

It is the opinion of the Court, however, that this motion must be denied.

As has been indicated, the interrelation of Rules 4(d) (3) and (7) of the Federal Rules of Civil Procedure and of West Virginia Code, Chapter 31, Article 1, Section 71 (Michie's ed. 1961, § 3083) is controlling in this case.

Rule 4(d) (3) provides that personal service shall be made upon a foreign corporation by delivering a copy of the summons and of the complaint to "any * * agent authorized by appointment or by law to receive service of process".

Rule 4(d) (7) provides that a foreign corporation may also be served "in the manner prescribed by the law of the state in which the service is made".

It is apparent, therefore, that the federal rules allow service in the manner authorized by the state service of process statute.

West Virginia Code, Chapter 31, Article 1, Section 71 (Michie's ed. 1961, § 3083), commonly referred to as the long arm statute, provides, in pertinent part, as follows:

Any foreign corporation which shall do any business in this State without having been authorized so to do pursuant to the provisions of section seventy-nine (§ 3091) of this article shall be conclusively presumed to have appointed the auditor of the State as its attorney in fact with authority to accept service of notice and process on behalf of and upon whom service of notice and process may be made in this State for and upon every such corporation in any action or proceeding described in the next following paragraph of this section. * * * (emphasis added)

For purposes of this section, a foreign corporation not authorized to do business in this State pursuant to the provisions of section seventy-nine (§ 3091) of this article shall nevertheless be deemed to be doing business herein if such corporation makes a contract to be performed, in whole or in part, by any party thereto, in this State, or if such corporation commits a tort in whole or in part in this State. * * *

Buyrite has not been authorized to do business in the state pursuant to Section seventy-nine (§ 3091).

In order to determine whether the service of process upon Buyrite has complied with Rules 4(d) (3) and (7), therefore, it is necessary to determine whether the service of process has met the dictates of West Virginia's long arm statute. To do so, furthermore, it is necessary to answer the following question. Has Buyrite done "any business in this State," so as to fall under the purview of the state long arm statute?

The complaint against Buyrite alleges both tort and contractual liability. As the West Virginia long arm statute indicates, either may be sufficient to establish the requisite doing of business. In this memorandum, each aspect will be considered separately.

Ever since International Shoe v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), where the Court found "sufficient contacts" to justify service of process, the trend of court decisions generally has been to uphold state long arm statutes. See e. g., McGee v. International Life Ins., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223 (1957). The question now before the Court is whether the facts of this case merit our upholding the manner in which Buyrite was served with process. We believe they do.

In this determination, of course, we are bound by West Virginia's own interpretation of her long arm statute, both as to its tort and contractual (breach of warranty) underpinnings. Shealy v. Challenger Mfg., 304 F.2d 102, 104 (4th Cir. 1962).

To a lesser extent, we also are mindful of two basic facts. This cause of action arose out of the use of Buyrite's product in West Virginia. Most of the witnesses probably will be from this state. Therefore, it seems only fair for Buyrite to defend in West Virginia. Id. at 103-104.

First, the Court directs its attention to the tort underpinnings of this case. Was the Smiths' complaint, to the extent it sounded in tort, served in a proper manner?

There is no West Virginia state case directly on point, but this Court, in Mann v. Equitable Gas, 209 F.Supp. 571 (N.D. W.Va.1962), has previously considered the issue.

Mann involved a suit for personal injuries suffered when a section of gas pipe exploded. The pipe was manufactured by a foreign corporation and installed here by a West Virginia firm.

The plaintiff in Mann relied on the above-quoted section of the West Virginia long arm statute which provides that a corporation is doing business within the state, for purposes of that code section, if it commits a tort, in whole or in part, within the state.

This Court quashed the service of process against the foreign corporation in Mann.

It is not our intention at this time to overrule a prior decision of this Court. Suffice it to say that the holding in Mann was entirely predicated on the fact that minimum contacts between the foreign corporation and the state were lacking.

The Court's reasoning in Mann was that in addition to the commission of a tort within the state, it is necessary under the Fourteenth Amendment's due process clause that minimum contacts exist between the foreign corporation and the forum in which jurisdiction is sought. 209 F.Supp. at 574-576. Accord State ex rel. Coral Pools v. Knapp, 147 W.Va. 704, 131 S.E.2d 81, 87 (1963).

Plainly, there were no minimum contacts in the Mann case. The record, for example, was silent as to whether the section of defective pipe was purchased in West Virginia or whether it was purchased outside the state and then transported and installed here. It was not suggested that the foreign corporation had reason to know that the pipe would be brought to this state. Neither was there any indication that the foreign corporation had carried on an advertising campaign affecting this state. Furthermore, no direct mail contact between the foreign corporation and West Virginia residents was alleged. No agent of the foreign corporation ever stepped into the state. Based on this record, the Court in Mann had no choice but to find a lack of minimum contacts.

In the present case, on the other hand, it is alleged that the bottled gas stove, which is the subject of the litigation, was purchased by the Smiths in the state. Buyrite itself admits to advertising and soliciting in West Virginia. It admits furthermore, that such activities are carried on twice a year through advertisements in a national trade magazine, which, it must be assumed, has some...