Jackman v. Century Brick Corp. of America, 51996

• Decision Date: 13 February 1967
• Docket Number: No. 2,No. 51996,51996,2
• Citation: 412 S.W.2d 111
• Parties: Richard E. JACKMAN, Appellant, v. CENTURY BRICK CORPORATION OF AMERICA, Respondent
• Court: Missouri Supreme Court

Page 111

412 S.W.2d 111

Richard E. JACKMAN, Appellant, v. CENTURY BRICK CORPORATION OF AMERICA, Respondent.

No. 51996.

Supreme Court of Missouri, Division No. 2.

Feb. 13, 1967.

Motion for Rehearing or to Transfer to Court En Banc Denied

March 13, 1967.

Lane D. Bauer, Shook, Hardy, Ottman, Mitchell & Bacon, Kansas City, for appellant.

E. E. Thompson, Kansas City, Popham, Thompson, Popham, Trusty & Conway, Kansas City, of counsel, for respondent.

FINCH, Presiding Judge.

Plaintiff, a resident of Michigan, filed suit on November 18, 1965, agianst defendant, a Pennsylvania corporation, for $25,000 actual and $25,000 punitive damages. The petition alleged that defendant had committed certain acts in Missouri during 1964 which were tortious and fraudulent and were made to induce plaintiff to become a franchise dealer for defendant in four Missouri and two Kansas counties for its 'Century Brick' process. The petition requested service of process in accordance with § 351.633, RSMo 1965 Cumulative Supplement, V.A.M.S., and recited the address of defendant to be in Erie, Pennsylvania, as shown in the official registry of that state. Service of process was on the secretary of state, who forwarded copies to defendant at its address in Erie, Pennsylvania, in the manner specified in § 351.633(2). Defendant then filed a motion to quash service and to dismiss. The motion asserted that § 351.633, effective October 13, 1965, was prospective only in its application and could not be utilized with respect to acts occurring prior to that date. It also recited that the petition did not allege the commission of tortious acts in Missouri. The trial court sustained the motion to quash and to dismiss. This appeal followed.

In order to consider the questions presented, it is necessary to review the history of this legislation, including our decisions with reference thereto.

In 1961 the general assembly enacted Senate Bill 183, Laws Missouri 1961, p. 257. It amended what was then § 351.630, RSMo 1959, by including therein what is sometimes referred to as the single tort statute. ¹ It provided that when a foreign corporation commits a tort in whole or in part in Missouri, such act constitutes the doing of business in this state and the corporation is deemed thereby to have appointed the secretary of state as its agent for service of process in actions arising out of such tort. It also prescribed how the secretary of state should notify the defendant corporation of service of process.

In State ex rel. Clay Equipment Corp. v. Jensen, Mo., 363 S.W.2d 666, this court considered subsection 2 of the 1961 act. ² The court held that substantive rights were created and that the general assembly intended the act to be prospective only in its application. Consequently, the statute was not available with respect to a tort committed prior to the statute's effective date, which was October 13, 1961.

Subsequently, in State ex rel. M. Pressner & Co. v. Scott, Mo., 387 S.W.2d 539, the court en banc considered subsection 3 of the 1961 statute. ³ That subsection provided that the secretary of state should forward a copy of the petition and summons by registered mail to the defendant corporation at its principal office 'as the same appears in the records of the secretary of state.' The court held that records, as used in that subsection, had reference to records made, filed or deposited pursuant to some law, that the secretary of state would not have such a record of the address of a nonresident corporation not qualified to do business in this state, and that the method provided in the statute as it applied to nonresident corporations not qualified in Missouri did not comply with due process requirements.

In 1965 the general assembly enacted Senate Bill 106 which repealed the then existing § 351.630 and enacted in lieu thereof two new sections. That portion of the existing statute relating to suits based on the commission of a single tort by a foreign corporation became § 351.633. Subsection 1 of the new § 351.633 corresponded verbatim with subsection 2 of the 1961 act. ⁴ Subsection 2 of the 1965 statute was new in that it provided a different procedure for notification of the foreign corporation at its address by the secretary of state. What had been subsections 4 and 5 of the 1961 act were reenacted verbatim as subsections 3 and 4 of the 1965 act. Subsection 5 of the 1965 act was new and provided for venue in the county where the cause of action accrued. ⁵

The 1965 statute became effective on October 13, 1965, and the suit from which this appeal is taken was filed on November 18, 1965. ⁶

Defendant asserts that the entire 1961 law was declared unconstitutional by this court in Pressner and that the 1965 act was an entirely new statute. It, says defendant, operates prospectively only and plaintiff may not utilize it as a means of recovery for torts committed in 1964. ⁷

The Pressner case did not hold that the entire § 351.630 was unconstitutional. The court considered only what was then subsection 3 relating to notification by the secretary of state of a foreign corporation not qualified to do business in Missouri. The opinion held only that the method of notification of a foreign corporation not qualified in Missouri did not meet the requirements of due process. The opinion recognized that subsection 3 of the 1961 act had been a part of subsection 1 of preexisting § 351.630, RSMo 1959, and that after the adoption of the 1961 act subsection 3 was intended by the legislature to be applicable to subsection 1 (as it had been previously) as well as subsection 2. Likewise, Pressner did not undertake to rule upon the constitutionality of other subsections of § 351.630. Consequently, it is clear that Pressner did not hold all of § 351.630 unconstitutional.

Defendant contends that subsection 3 was so essentially connected with the rest of § 351.630 that the ruling in Pressner necessarily included a ruling that the entire section was invalid, and that § 1.140, RSMo 1959, V.A.M.S., relative to severability of sections of a statute, is applicable. We do not agree. In addition to what we have said in the preceding paragraph, we note that subsection 4 of the 1961 act provided as follows: 'Nothing herein contained shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served upon a foreign corporation in any other manner now or hereafter permitted by law.' This language recognized that there might then be existing some other method of service or that a different method of service might be provided subsequently. In either instance, service by the other means was to be permissible. This indicates that the legislature did not intend that utilization of the single tort statute was to be dependent completely and exclusively on the method provided in subsection 3.

This court in Pressner did not find, as the court did in State ex rel. Transport Mfg. & Equipment Co. v. Bates, 359 Mo. 1002, 224 S.W.2d 996, and in Preisler v. Calcaterra, 362 Mo. 662, 243 S.W.2d 62, cited by defendant, that elimination of a particular subdivision or clause meant that the remaining statute did not express the legislative intent and for such reason the entire act must be held bad. In both the Calcaterra and Bates cases the statute remaining after elimination of the portion held invalid would have resulted in something entirely different from what the legislature intended. For example, Calcaterra involved a statute providing for challengers and watchers at the polls for the two dominant political parites. The court held that the provision limitng the challengers and watchers to the two dominant political parties violated the equal protection provisions of the state and federal constitutions. It was suggested to the court that a particular clause of the statute might be ruled unconstitutional but the remainder upheld. The court pointed out that to do this would result in providing challengers and watchers for all political parties, whereas the clear legislative intent was to confine it to the two dominant parties. Consequently, the court went ahead and specifically held that the entire act was bad. The Bates case involved a use tax which contained an exemption of motor vehicles having a seating capacity of ten passengers or more. The court held the exemption to be discriminatory and invalid but rejected a suggestion that it could hold the exemption bad without ruling the entire use tax to be invalid. The court pointed out that to do this would result in imposition of tax which the legislature did not intend, and therefore it was necessary to hold the entire use tax invalid. The situation in those cases is not analogous to the one with which we are now concerned. The ruling in Pressner simply meant that the procedure prescribed in subsection 3 for notification of the foreign corporation by the secretary of state of service on it was invalid. This did not in any sense change the meaning or effect of subsection 2. We hold that the ruling in Pressner did not necessitate a holding that all of § 351.630 was invalid.

Section 1.120 RSMo 1959, V.A.M.S., provides as follows: 'The provisions of any law or statute which is reenacted, amended or revised, so far as they are the same as those of a prior law, shall be construed as a continuation of such law and not as a new enactment.' The language of this section is applicable to subsections in the 1961 act which were identical with subsections in the 1965 act. Subsections 2, 4 and 5 of the 1961 act were repealed and reenacted verbatim as subsections 1, 3 and 4 of § 351.633 when it was adopted in 1965. Under that statute, those subsections continued to be effective from the effective date of the 1961 statute, and utilization in this case of the rights created thereby is not contrary to what this court said in Jensen about such rights being prospective only.

The case law of Missouri is in accord...