Moore v. Racine Rubber Co.

• Decision Date: 06 December 1921
• Parties: MOORE ET AL. v. RACINE RUBBER CO.
• Court: Kentucky Court of Appeals

238 S.W. 381

194 Ky. 106

MOORE ET AL. v. RACINE RUBBER CO.

Court of Appeals of Kentucky.

December 6, 1921

Rehearing Denied March 21, 1922.

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Third Division.

Action by Tom Moore, Jr., and others against the Racine Rubber Company. Judgment of dismissal, and plaintiffs appeal. Reversed with directions.

W. J O'Connor, of Louisville, for appellants.

William Marshall Bullitt, Grover G. Sales, and Bruce & Bullitt, all of Louisville, for appellee.

TURNER C.

Appellants in October, 1919, filed this ordinary action against appellee, a foreign corporation, alleging that they had been, in the years 1918 and 1919, engaged in Louisville, Ky. in the sale of rubber, cement, and other materials used in the manufacture of automobile tires, and that, during the months of May and June, 1919, they had bought all of such materials from the defendant and that defendant, knowing the nature and condition of the plaintiffs' business, shipped to the plaintiffs and their customers materials of inferior quality, although plaintiffs had ordered the very best of these goods, by reason of which the plaintiffs had lost all of their customers, and their business had been practically destroyed, and that, because of the shipment by the defendant of such inferior goods to the plaintiffs' customers, the plaintiffs have been damaged, and pray judgment therefor.

The return on the summons issued on the petition is as follows:

"Executed January 21, 1920, on Racine Rubber Company by delivering a copy of the within summons to R. B. Crane, agent for the Racine Rubber Company, he being chief officer found in this county at this time."

The defendant entered its special appearance for the sole purpose of objecting to the jurisdiction of the court, and entered a motion to quash the return upon the summons upon the grounds, (1) that defendant was a foreign corporation and was not engaged in any business in Kentucky at the time the process was served or at the time negotiations or transactions between the plaintiffs and defendant, as alleged in the petition, were pending, or at any time; (2) that Crane, upon whom the process was executed, was not its president, vice president, secretary, librarian, cashier, treasurer, clerk, or managing agent, nor was he the agent of the defendant in any business in the state of Kentucky, or in the business alleged in the petition, or the person in charge of any business for the defendant in the state of Kentucky, or of any such business, as is alleged in the petition at the time the summons was served; (3) that Crane was not an agent of any description of the defendant, at the time the summons was served, upon whom process could be served.

A number of affidavits were filed upon the hearing of this motion by both plaintiffs and defendant, and the trial court sustained the motion and quashed the service of the summons. Plaintiffs thereafter entered a motion to set aside the order quashing the return on the summons, which was overruled, and then, in writing, refused to have any further summons or process issued or to take any further steps therein whereupon the petition was dismissed, and plaintiffs prayed an appeal to this court. Speckert v. Ray, 166 Ky. 622, 179 S.W. 592, 4 A.L.R. 603. The affidavits disclosed that defendant was a Wisconsin corporation, having its principal office and place of business at Racine in that state, and was engaged in the selling of automobile tires and various accessories associated therewith; that defendant did not have, at the beginning of this action, and has never had, any resident agent or any office or branch house or place of business in the state of Kentucky; that Crane, upon whom the process was served, was an employé of the Racine Rubber Company and known as sales manager of the sundries department thereof, and that his duties as such were superintending and promoting the trade in such materials, making prices and terms, traveling in the interest of the company, calling upon customers and ascertaining their present and probable requirements, interesting new customers and explaining the qualities and methods of using the defendant's goods; that a short time prior to the 25th of October, 1918, Crane met Stivers, a member of the plaintiffs' firm, at Cincinnati, Ohio, and made him certain prices upon his company's goods, which prices were later confirmed by letter to plaintiffs on the 25th of October, 1918, written from the company's office at Racine; that prior to October, 1918, the I. J. Cooper Company, of Cincinnati, Ohio, had the exclusive right of sale of defendant's goods within the state of Kentucky, and, with the exception of goods sold to the plaintiffs since that date, still has such exclusive right in this state; that all goods sold by the defendant to the plaintiffs were sold under the arrangement thus made in Ohio, except that thereafter, in April, 1919, Crane, while in Louisville, made a new set of prices to the plaintiffs and entered into a new contract or arrangement, under which all goods were thereafter shipped to them or their customers; that Crane, between October, 1918, and January, 1920, when the service was had upon him, made at least three trips to Louisville, Ky. and it must be assumed, as defendant sold to no other persons in Kentucky, those trips were made specially to see the plaintiffs and transact business with them; that on...