Labonte v. American Mercury Magazine

• Decision Date: 09 April 1953
• Citation: 38 A.L.R.2d 742,96 A.2d 200,98 N.H. 163
• Parties: , 38 A.L.R.2d 742 LABONTE v. AMERICAN MERCURY MAGAZINE, Inc. et al.
• Court: New Hampshire Supreme Court

Page 200

96 A.2d 200

98 N.H. 163, 38 A.L.R.2d 742

LABONTE v. AMERICAN MERCURY MAGAZINE, Inc. et al.

Supreme Court of New Hampshire.

April 9, 1953.

Hughes & Burns, Donald R. Bryant, Dover, and Rich & Burns, Berlin, for plaintiff.

Wyman, Starr, Booth, Wadleigh & Langdell, Manchester, Robert P. Booth, Manchester, for defendant Mercury.

Sulloway, Jones, Hollis & Godfrey, Concord, for Rumford Printing Co., filed no brief.

KENISON, Chief Justice.

The principal issue in this case is whether a foreign corporate publisher of a magazine printed in this state was doing business in New Hampshire so that it was validly served with process for an alleged libel. Our inquiry is limited to jurisdiction for service of process and is not concerned with jurisdiction for taxation, license or other purposes. While many of the persuasive authorities cited are federal cases, the issue to be decided is one of state law. See Perkins v. Benquet Consolidated Mining Co., 342 U.S. 437, 72 S.Ct, 413, 96 L.Ed. 485.

The defendant relies in part on the reasoning in Campbell v. U. S. Radiator Corp., 86 N.H. 310, 167 A. 558 and Bank of America v. Whitney Cent. Nat. Bank, 261 U.S. 171, 43 S.Ct. 311, 67 L.Ed. 594, for the proposition that Mercury was not doing business in this state. These cases may have been authority for that proposition twenty or thirty years ago but later decisions make the issue more debatable. Today in determining whether a foreign corporation shall be subject to local process, the theories of implied consent and corporate presence have been discarded in favor of the 'fair play and substantial justice' rule formulated in International Shoe Co. v. Washington, 326 U.S. 310, 320, 66 S.Ct. 154, 160, 90 L.Ed. 95, and followed with approval in subsequent cases. Travelers Health Ass'n v. Com. of Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154. That rule is considered more convincing in this jurisdiction than the cases cited by the defendant. Grace v. Proctor & Gamble Co., 95 N.H. 74, 76, 57 A.2d 619. Federal decisions extending and applying the rule were followed in the recent case of Taylor v. Klenzade Products, Inc., 97 N.H. 517, 521, 92 A.2d 910. While it is true that the rule of International Shoe lacks definite preciseness in its application, it is quite clear that state jurisdiction is now exercised over foreign corporations in instances where it was formerly considered impossible. Almost all cases of libel actions against foreign publishing corporations were dismissed on jurisdictional grounds before the decision in International Shoe. See Street & Smith Publications v. Spikes, 5 Cir., 120 F.2d 895; Whitaker v. Macfadden Publications, Inc., 70 App.D.C. 165, 105 F.2d 44; Cannon v. Time, Inc., 4 Cir., 115 F.2d 423. At the present time libel actions against foreign corporations may be dismissed but the approach thereto is not as strict as formerly existed. See Note, 16 U.Chi.L.Rev. 523; annotations 96 L.Ed. 495 and 94 L.Ed. 1167, 1178.

Several factual considerations are urged to show that Mercury is not doing business in this state. It has no telephone, office or designated agent in this state and none of its officers or employees permanently reside or work here. Less than one per cent of its national circulation is in New Hampshire. The activities in this state that are done on behalf of Mercury are carried on by the employees of the defendant, Rumford Printing Company, a New Hampshire corporation pursuant to the oral contract with Mercury. It is therefore argued that Mercury is not subject to process in New Hampshire and reliance is also placed on Cannon Mfg. Co. v. Cudahy Packing Co., 267 U.S. 333, 45 S.Ct. 250, 69 L.Ed. 634; Polizzi v. Cowles Magazines, Inc., 5 Cir., 197 F.2d 74; Bank of America v. Lima, D.C., 103 F.Supp. 916.

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