McGriff v. Charles Antell, Inc.

• Decision Date: 04 May 1953
• Docket Number: No. 7879,7879
• Citation: 256 P.2d 703,123 Utah 166
• Parties: McGRIFF, v. CHARLES ANTELL, Inc. et al.
• Court: Utah Supreme Court

Page 703

256 P.2d 703

123 Utah 166

McGRIFF, v. CHARLES ANTELL, Inc. et al.

No. 7879.

Supreme Court of Utah.

May 4, 1953.

Pugsley, Hayes & Rampton, Salt Lake City, for appellant.

Rich & Strong, Salt Lake City, for respondent.

HENRIOD, Justice.

Appeal from an order quashing service of process. Affirmed. Costs on appeal to defendant.

Plaintiff alleges injuries from use of defendant's hair application. She served process on a local television station's manager on the assumption that he or the station from which defendant, a foreign corporation, purchased advertising time, was either doing the business of or was in charge of defendant's office or place of business in Utah, within the meaning of that portion of Rule 4(e)(4), Rules of Civil Procedure, relating to service of process on foreign corporations doing business in the state. ¹

Defendant paid the local station for time to advertise its product. At the end of its program, a spokesman for the company invited televiewers to place orders by phoning a number flashed on the screen, that of the television station, where such calls were received and the information obtained mailed to the company in Maryland, without any additional charge other than the regular advertising fee. Plaintiff responded to the invitation and in due course received defendant's product by mail from Maryland, C.O.D.

Plaintiff urges that defendant was (1) doing business in Utah, (2) the television station was its office and (3) service on the station's manager brought defendant within the jurisdiction of our courts. We cannot agree that defendant was doing business in the sense that subjected it, as a foreign corporation, to such jurisdiction.

To prove plaintiff's contention, her attorney's secretary testified that she frequently had seen defendant's television program, that its spokesman gave a fine talk, suggesting that if he had convinced his listeners that defendant's product would do what he said it would do, they should call the number which would be flashed on the screen,--that of the television station. She further stated that after plaintiff had sought the advice of her lawyer-employer, and at the latter's request, she called the television station. In testimony of questionable admissibility, she then asserted that in response to her call a lady answered, who, when asked where the product could be ordered, replied that it would have to be ordered through the television station by name and address, whence the company would send it C.O.D. Upon being asked if there were any place in the city where the product could be bought directly from the company, the lady at the station stated that the company 'had no one here who sold it'; that the only way it could be obtained was by order through the station and the company would send it, probably with some literature, and that if something else were desired it could be obtained directly from the company. A second phone call produced substantially the same response.

Plaintiff leans heavily on Industrial Commission v. Kemmerer Coal Co., 1944, 106 Utah 476, 150 P.2d 373, to support her contention that defendant was 'doing business' in Utah, and was subject to our jurisdiction. In that case, decided on the ground that process had been served on the wrong person, as to the matter of 'doing business', this court quoted language from Frene v. Louisville Cement Co., 77 U.S.App.D.C. 129, 134 F.2d 511, 515, 146 A.L.R. 926, that 'very little more than 'mere solicitation' is required' to constitution doing business in the jurisdictional sense. This language followed the statement that 'it is * * * clear that if, in addition to a regular course of solicitation, other business activities are carried on, such as maintaining a warehouse, making deliveries, etc., the corporation is 'present' for jurisdictional purposes.' The obvious difference between the Kemmerer case and this, and the reason it is not controlling here, are apparent when one recalls that the coal company maintained and paid for an office in a local building, had its name painted on the door, listed itself in the phone and building directories, owned furniture and fixtures, operated 3 automobiles here, and had 3 authorized resident agents seeking and doing its business locally,--factually quite dissimilar, and reflecting activities far beyond solicitation only.

In determining whether a foreign corporation is doing business in a state for jurisdictional purposes, each case factually must be examined as it arises. ² A hard and fast formula cannot determine algebraically every case. Common sense must dictate the result. The law, in our opinion, would be a faithless servant if today it demanded that solicitation of business in and of itself subjected a foreign corporation to the local forum. Of equal disservice to the common good would be a rule that solicitation of business by television, radio, the press or in periodicals,--with nothing more, clothed such medium of advertising with the raiment of a process agent. Such a rule would leave little to the imagination if a vendor sought orders through a newspaper box number, and thus submitted to the local jurisdiction and the mailman would acquire new stature as one doing the business of countless foreign corporations, and the one upon whom process might be served to bring his unknown foreign corporation principals within the jurisdiction of the state courts.

This is not to say that in a proper case solicitation plus something else, or use of radio plus something else, could not constitute doing business in the jurisdictional sense, or could not ascribe to such advertising...