Schweppes U.S. A. Limited v. Kiger

• Citation: 158 W.Va. 794,214 S.E.2d 867
• Decision Date: 20 May 1975
• Docket Number: No. 13555,13555
• Court: Supreme Court of West Virginia
• Parties: SCHWEPPES U.S.A. LIMITED, a corporation v. Marvin R. KIGER, Judge, etc., et al., and Glenna Cather, et al.

Page 867

214 S.E.2d 867

158 W.Va. 794

SCHWEPPES U.S.A. LIMITED, a corporation v. Marvin R. KIGER, Judge, etc., et al., and Glenna Cather, et al.

No. 13555.

Supreme Court of Appeals of West Virginia.

May 20, 1975.

Syllabus by the Court

1. In order to render a valid judgment or decree, a court must have jurisdiction both of the parties and of the subject matter and any judgment or decree rendered without such jurisdiction will be utterly void.

2. A foreign corporation not authorized to do business in this state is amenable to service of process and subject to the jurisdiction of the courts of this state if such process is served upon and accepted by the state auditor Only in the three instances described in the third paragraph of Code, 1931, 31--1--71, as amended, namely, (a) if such corporation makes a contract to be performed in whole or in part, by any party thereto, in this State; (b) if such corporation commits a tort in whole or in part in this State; or, (c) if such corporation manufactures, sells, or supplies any product which causes injury to a person or property within this State.

Robert T. Donley, Hale J. Posten, Albert M. Morgan, William H. Higinbotham, Morgantown, for relator.

Wilson, Frame & Rowe, Clark B. Frame, Morgantown, for respondents Cather.

CAPLAN, Justice:

In this original proceeding in prohibition the petitioner, Schweppes U.S.A. Limited, a corporation, seeks to prohibit the respondents, Marvin R. Kiger, Judge of the Circuit Court of Monongalia County; Jean Friend, Clerk of the Circuit Court of said county; Charles J. Whiston, Sheriff of said county; and, Glenna Cather and Carl Cather, her husband, from further proceeding in an action instituted in the above court, designated Glenna Cather and Carl Cather v. Schweppes U.S.A. Limited, or from any attempt to enforce the alleged void judgment rendered therein. This Court on January 27, 1975 awarded a rule returnable February 11, 1975. Subsequently, the case was continued to April 22, 1975 for the taking of depositions upon which date, upon the briefs and oral arguments of counsel for the respective parties, the case was submitted for decision.

Giving rise to this proceeding is the factual situation revealed by the record and now described. Respondents Glenna and Carl Cather, residents of Morgantown, West Virginia, while driving from said city to the eastern seashore for a holiday stopped in Easton, Maryland where they stayed overnight. While there they purchased from a retail store four quarts of Schweppes tonic water. The following morning, May 25, 1974, they proceeded by automobile and boat to Hog Island, Virginia, their destination, taking with them the said bottles of tonic water. The Cathers were in the company of two other couples from Morgantown.

Upon their arrival at Hog Island, Glenna Cather was unpacking their personal effects during which time she had occasion to handle one of the bottles of tonic water. As she placed it on the floor the metal cap on the bottle blew off with great force. The cap struck Mrs. Cather in the right eye causing severe and perhaps inrreparable damage. She was hospitalized and continues to suffer serious consequences from that unfortunate accident. While we in no manner minimize the extent of her injuries, further consideration of her condition resulting therefrom is not pertinent to this proceeding.

Subsequently, on the 7th day of August, 1974 Glenna and Carl Cather instituted an action against Schweppes U.S.A. Limited in the Circuit Court of Monongalia County, West Virginia, charging Schweppes, the petitioner herein, with a breach of implied warranty and negligence and seeking damages in the sum of $750,000.00 for the injury to Mrs. Cather's right eye. For the purpose of obtaining service on Schweppes the plaintiffs served process on the Auditor of the State of West Virginia, ostensibly under the provisions of Code, 1931, 31--1--71, as amended. Schweppes, for reasons disputed in this record, did not answer or otherwise defend against the complaint of the Cathers. By reason thereof the plaintiffs in this action filed a motion for a default judgment under the provisions of 55(b)(2), West Virginia Rules of Civil Procedure. Their motion for such judgment was granted.

Thereafter, on September 13, 1974 the plaintiffs requested and were granted a hearing on the question of damages. This hearing was held before the court, a jury having been expressly waived. At the hearing there was adduced the testimony of the plaintiffs, two medical witnesses and a professor of business administration from West Virginia University who testified as an actuarial expert. At the conclusion of the hearing, judgment was entered against Schweppes in the amount of $270,000.00 in favor of Glenna Cather and $30,000.00 for the plaintiff's husband, Carl Cather.

The sole issue in this proceeding is whether the Circuit Court of Monongalia County had jurisdiction of Schweppes U.S.A. Limited so as to render an In personam judgment against it for the above described injuries of Glenna Cather. Did the Circuit Court of Monongalia County acquire jurisdiction over Schweppes by virtue of service upon and acceptance of service by the Auditor of the State of West Virginia of process issued in that action wherein the defendant was considered a corporation not authorized to do business in the State of West Virginia under the provisions of Code, 1931, 31--1--71, as amended?

It is a fundamental principle of law that a court, to render a valid judgment or decree, must have jurisdiction both of the parties and of the subject matter and that any judgment or decree rendered without such jurisdiction will be utterly void. State ex rel. Smith v. Bosworth, 145 W.Va. 753, 117 S.E.2d 610 (1960); Chapman v. Maitland, 22 W.Va. 329 (1883); 11 M.J. Jurisdiction, § 8 et seq.

The respondents take the position that if the petitioner, a foreign corporation, was doing business in this state service was effected upon it under the provisions of Code, 1931, 31--1--71, as amended, sometimes referred to as our long-arm statute. They contend that the above statute was an attempt by the legislature to enable injured West Virginia residents to sue a foreign corporation in the courts of our state rather than having to proceed against such corporation in its home state. We agree that the legislature in its endeavor to lessen the burden of a resident injured in this state by an act of a foreign corporation provided a method of obtaining personal service on such corporation, making it amenable to the jurisdiction of our courts so that in an action instituted against it an In personam judgment could be rendered. However, jurisdiction of such foreign corporation can be obtained only as prescribed by the above statute.

Code, 1931, 31--1--71, as amended, constitutes the state auditor as attorney in fact for the acceptance of service of process for all domestic corporations and for all foreign corporations authorized to do business in this state. A further function of said statute is...