Radford v. Minnesota Mining & Manufacturing Co.

• Decision Date: 18 February 1955
• Docket Number: Civ. No. 2525.
• Citation: 128 F. Supp. 775
• Parties: Ruth R. RADFORD v. MINNESOTA MINING & MANUFACTURING COMPANY.
• Court: U.S. District Court — Eastern District of Tennessee

128 F. Supp. 775

Ruth R. RADFORD v. MINNESOTA MINING & MANUFACTURING COMPANY.

Civ. No. 2525.

United States District Court, E. D. Tennessee, N. D.

February 18, 1955.

Clyde W. Key, Wm. A. Reynolds, Knoxville, Tenn., for plaintiff.

H. H. McCampbell, Jr., Knoxville, Tenn., for defendant.

ROBERT L. TAYLOR, District Judge.

This suit was filed in the Circuit Court of Knox County by the plaintiff as the widow of Condon Radford, who sues on behalf of herself and minor children for the alleged wrongful death of her husband that occurred on February 1, 1954 in Anderson County, Tennessee, as the result of the alleged negligence of defendant.

The deceased suffered severe burns as a result of the ignition and explosion of mastic cement, a product manufactured by the defendant, while he was installing a hardwood floor in a residence located at Oak Ridge.

The case was removed from the Circuit Court of Knox County to this Court on the grounds of diversity and jurisdictional amount in controversy.

Defendant has filed here a motion to dismiss the action or to quash the return of service of summons on the grounds: (a) That the defendant is a Delaware corporation and is not subject to service of process within the Eastern District of Tennessee, and (b) that the defendant was not properly served with process. The original service of process was served upon the Secretary of State in accordance with Vol. 3, Williams' Tenn.Code Ann., § 4124.

Following the hearing on defendant's motion an alias summons was issued at the request of plaintiff and served on Harold J. McKenna. The return of the Marshal shows that McKenna is an "automotive trades salesman" for the defendant.

If the defendant was not subject to process issued by the State Court, and not subject to service of alias process issued by this Court, plaintiff's action must be dismissed. Block v. Block, 7 Cir., 196 F.2d 930; Wilson v. Kansas City Southern Ry. Co., D.C., 101 F. Supp. 56.

Reasons urged in support of the motion to dismiss or quash are that defendant was not doing business in Tennessee at the time of the attempted service of the two summonses upon it, that it is not doing business in Tennessee at the present time, and that it was not and is not subject to suit in Tennessee. Also in support of its motion defendant has filed an affidavit of H. P. Buetow, its president. This affidavit states that defendant is a Delaware corporation with its principal place of business at St. Paul, Minnesota; that it has never been domesticated in Tennessee; that it does not do and has never done business in Tennessee; that it has never designated an agent for service of process upon it in the State of Tennessee; that it has not now and has never had an office for the conduct of its business in Tennessee; that it has never had property in Tennessee; that "the extent of its activities within the State of Tennessee is limited strictly and solely to the mere solicitation by its salesmen of orders for products of its manufacture, and that such orders are transmitted to its offices located outside the State of Tennessee."

Counsel for plaintiff concedes that if defendant's business was limited to the mere solicitation of orders by its salesmen for its products and such orders were transmitted to its offices outside the State of Tennessee and accepted by officers outside of the State of Tennessee it would not be subject to process in a civil suit in the State of Tennessee. This concession is in line with the principles declared in the cases of Green v. Chicago, Burlington & Quincy Ry. Co., 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916; People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587 and the more recent decisions of International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95; Travelers Health Ass'n v. Commonwealth of Virginia, 339 U.S. 643, 70 S.Ct. 927, 94 L.Ed. 1154, and Perkins v. Benguet Consol. Mining Co., 342 U.S. 437, 72 S.Ct. 413, 96 L.Ed. 485.

The oral testimony given by three of defendant's employees at the hearing shows clearly that defendant has carried on business activities in Tennessee continuously for a period of more than five years prior to the present suit and that such activities include much more than solicitation of orders for defendant's products.

Witness McKenna stated that he had been employed by defendant since 1951 as an automotive trade salesman dealing in sandpaper, masking tape, undercoatings and abrasives. He calls on the trade in an automobile owned and serviced by the defendant. Defendant's products are sold to distributors. He checks the distributors' stocks to see that they are complete. A distributor orders the merchandise direct from the defendant. McKenna deals principally with automobile repair shops and garages who have purchased defendant's products from the distributor. He instructs the garage owner in the proper use of defendant's products, reports to defendant any complaints for adjustments, investigates complaints, demonstrates the proper use of the products of defendant, and exhibits new products which are being introduced in the industry. McKenna lives in Knox County, Tennessee.

Witness Thomas L. Billman, another employee of defendant for more than four years, lives in Maryville, Tennessee. He represents defendant's Cellophane Tape Division. He calls on distributors who distribute defendant's products and makes sales to them. He services delinquent accounts upon...