Lake Erie Chemical Co. v. Stinson

• Decision Date: 03 April 1964
• Docket Number: No. 4562,4562
• Citation: 162 So.2d 545
• Parties: LAKE ERIE CHEMICAL COMPANY, a foreign corporation, Appellant, v. David Philip STINSON, a minor, by his father and next friend, T. Philip Stinson, and T. Philip Stinson, and the City of Leesburg, a municipal corporation, Appellees.
• Court: Florida District Court of Appeals

Page 545

162 So.2d 545

LAKE ERIE CHEMICAL COMPANY, a foreign corporation, Appellant, v. David Philip STINSON, a minor, by his father and next friend, T. Philip Stinson, and T. Philip Stinson, and the City of Leesburg, a municipal corporation, Appellees.

No. 4562.

District Court of Appeal of Florida, Second District.

April 3, 1964.

Leon Handley of Gurney, Gurney & Handley, Orlando, for appellant.

H. L. Pringle, Leesburg, and Walter S. McLin, III, of Davis & McLin, Leesburg, for appellees Stinson.

Monroe E. McDonald of Sanders, McEwan, Schwarz & Mims, Orlando, for appellee City of Leesburg.

ALLEN, Judge.

Appellant, defendant below, seeks review, by interlocutory appeal, of an order denying its motion to dismiss for lack of jurisdiction and insufficient service of process. Rule 4.2 F.A.R., 31 F.S.A.

The amended complaint filed by appellees Stinson alleged, with respect to appellant,

'1. That the defendant, Lake Erie Chemical Company, hereinafter referred to as the defendant company, is a foreign corporation whose resident agent in the State of Florida is Roy E. Larsen, Tallahassee, Florida.

'2. At all times herein mentioned, the defendant company was engaged in the business of manufacturing and selling 35 MM tear gas bombs or grenades and sometime prior to the 25th day of November, 1961, the defendant company sold to the City of Leesburg a quantity of the said tear gas bombs to be utilized by the said City as a part of the normal weapons in the City's Police arsenal.'

and continued, alleging that appellant's negligence in design, manufacture and distribution of the tear gas bomb, with concurring negligence on the part of the defendant-appellee City, caused injury to the minor plaintiff Stinson. Notwithstanding the allegation of a resident agent's presence in the State, service of process was made on the Secretary of State under Fla.Stat. 47.16 and 47.30, F.S.A.

Appellant appeared and moved to dismiss as aforsesaid, a hearing was held at which time the affidavit and deposition of Roy Larson were considered, and the motion was denied. Upon consideration of the record at this time, we are constrained to reverse the order denying appellant's motion to dismiss.

Although we are inclined to agree with the able trial judge that Larson's deposition tends to establish sufficient evidence of appellant's business activities in this State to justify the conclusion that it would be amenable to process under the terms of Fla.Stat. 47.16, F.S.A., see Forston v. Atlantic Engineering & Mfg. Corp., Fla.App.1962, 143 So.2d 364; Woodring v. Crown Engineering Co., Fla.App.1962, 141 So.2d 816, we find the allegations above quoted insufficient as a predicate for the exercise of jurisdiction under constructive service of process. Rule 1.8, Fla., R.C.P. 30 F.S.A.; Fla.Stat. 47.16, F.S.A. The allegations of the complaint upon which the court's in personam jurisdiction must rest--the two allegations quoted above--do not explicitly or by reasonable inference allege that appellant operates, conducts, engages in or carries on a business or business venture in this State.

The allegation that Larson was appellant's resident agent does not constitute an...