Nigro v. Cessna Aircraft Co.

• Decision Date: 07 December 1964
• Docket Number: No. 1605,1605
• Citation: 169 So.2d 594
• Parties: John M. NIGRO v. CESSNA AIRCRAFT COMPANY.
• Court: Court of Appeal of Louisiana — District of US

Page 594

169 So.2d 594

John M. NIGRO v. CESSNA AIRCRAFT COMPANY.

No. 1605.

Court of Appeal of Louisiana, Fourth Circuit.

Dec. 7, 1964.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, Robert B. Acomb, Jr., and John R. Peters, Jr., New Orleans, for plaintiff-appellant.

Christovich & Kearney, J. Walter Ward, Jr., New Orleans, for defendant-appellee.

Before REGAN, YARRUT, and BARNETTE, JJ.

YARRUT, Judge.

This is an appeal by Plaintiff from a judgment of the district court maintaining Defendant's motion for summary judgment. The basis for the motion was the lack of jurisdiction 'in personam' because Defendant, a foreign corporaton, was not qualified to, and was not doing business in Louisiana; and had appointed no agent for service of process in this state.

Service was made on Defendant through the Louisiana Secretary of State under LSA-R.S. 13:3471(1), as amended by Acts of 142 § 1 of 1954 and 32 § 1 of 1960.

Defendant contends this service was improper because the Sheriff did not first seek an agent or employee of Defendant, upon whom to make service, before serving the Secretary of State. This objection is untenable. As defendant admits it had no agent or employee in Louisiana upon whom service could be legally made, it would have been a vain and useless effort for the Sheriff to first seek a non-existent agent before serving the Secretary of State. Since the service ultimately could only legally be made on the Secretary of State, Defendant's objection thereto must be overruled.

Plaintiff's suit is to recover damages for personal injuries sustained when an airplane, manufactured and sold by Defendant, then being piloted by Plaintiff, crashed when in flight due to an alleged defect in construction or equipment.

The only issue here is whether Defendant was doing business in Louisiana that would subject it to the 'in personam' jurisdiction of Louisiana courts. Whether or not a foreign corporation is, in legal contemplation, doing business in Louisiana, is a mixed question of law and fact, which must be determined on the basis of particular facts relating to its operations. J. Perez, S.A. v. Louisiana Rice Growers, Inc., La.App., 139 So.2d 247.

In the reasons for judgment, denying jurisdiction over Defendant, the district court held:

'The motion to quash the service is technically well founded in law, as no jurisdiction over Defendant, the district the State. However, it appearing that defendant, Cessna Aircraft Company, neither maintains an office nor an agent in the State, nor do any agents or employees make regular visits to the State, no useful purpose would be served by reissuing citation.

'LSA-R.S. 13:3471(1) simply provides a method of service of process.

The decisions in International Shoe Company v. Washington, 326 U.S. 310 (66 S.Ct. 154, 90 L.Ed. 95), and McGee v. International Life Insurance Co., 355 U.S. 220 (78 S.Ct. 199, 2 L.Ed.2d 223), are substantive law, and the facts of the instant case do not justify the application of the rule of those cases.

'Cessna has distributors in Louisiana, but it does not maintain an office, has no resident agent, sales are not solicited in the State, a representative does not travel regularly in the State, nor does it engage in any activity other than contact with and for the benefit of its distributors. To hold that in these circumstances Cessna is doing business in Louisiana, would establish the legal principle that any corporation whose goods are sold in the State is doing business in the State if a representative of the corporation, under any circumstances, visits the State. Such is not the law.

'Covington v. Southern Specialty Sales Co., Inc. (La.App.), 158 So .2d 79, relied upon by plaintiff, is inapposite. In that case, the defendant, Clinton Engine Company, through a distributor, Southern Specialty Sales Company, maintained a central warehouse, serving approximately 140 service centers. Representatives of Clinton made periodic calls in Louisiana every four (4) or five (5) weeks and, in addition to calling on the central warehouse distributor, made calls on the sales and service centers, who operated pursuant to agreements with its central warehouse distributor, and made calls on original equipment manufacturers who had no contractual relation with the central warehouse distributor.'

An officer of Defendant, in answering Plaintiff's interrogatories, admitted: Cessna has a distributor in Louisiana who sells aircraft; Cessna advertises in the State of Louisiana and bears part of the expense in the listing and advertising in the telephone directory by the various dealers; Cessna has engaged in collection of accounts receivable arising out of the sale of its products during the year of the crash; a regional service man visits Louisiana who assists the distributor and the distributor's dealers in showing aircraft; occasionally the service representative accepts orders for aircrafts subject to Cessna's Kansas Office acceptance; demonstrations of the products are given in Louisiana by Cessna employees; and Cessna allows use of its name in indicating Cessna dealers and distributorships in the State of Louisiana.

Plaintiff contends the trial court was in error in not recognizing that, in accordance with our statutes and jurisprudence, significant sales and promotional work in Louisiana by a foreign corporation subjects it to judicial process in Louisiana for any breach of warranty or tort occasioned by a defect in the manufactured goods. International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct . 154, 90 L.Ed. 95, 161 A.L.R. 1057, and McGee v. The International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223.

In the International Shoe case, the U.S. Supreme Court held that activity of salesmen in the State of Washington, though working strictly on commission, in effect separate entities, who sold shoes for International Shoe Company on a contract subject to acceptance at the foreign corporation's principal place of business was a sufficient contact to make it amenable to process in the State of Washington. The McGee case held that a foreign insurance company, which...