Semler v. Cook-Waite Laboratories

• Decision Date: 22 December 1954
• Docket Number: COOK-WAITE
• Citation: 203 Or. 139,278 P.2d 150
• Parties: Harry SEMLER, Plaintiff-Appellant, v.LABORATORIES, Inc., a corporation, Defendant-Respondent.
• Court: Oregon Supreme Court

Page 150

278 P.2d 150

203 Or. 139

Harry SEMLER, Plaintiff-Appellant, v. COOK-WAITE LABORATORIES, Inc., a corporation, Defendant-Respondent.

Supreme Court of Oregon, Department 1.

Argued and Submitted Oct. 13, 1954.

Decided Dec. 22, 1954.

Stewart M. Whipple, Portland, for appellant. On the brief were Easley, Whipple & McCormick and Carl Robert Wells, Portland.

Stuart W. Hill, Portland, for respondent. On the brief were Tooze, Kerr, Hill & Tooze, Portland.

Before LATOURETTE, C. J., and ROSSMAN and PERRY, JJ.

ROSSMAN, Justice.

This is an appeal by the plaintiff from an order of the circuit court which, according to its recitals, quashed 'the summons in this cause, the service thereof, and the return of the Sheriff with respect thereto, * * *.'

The assignment of error reads as follows:

'The Court erred in making and entering its order quashing summons, service and return, which, omitting formal parts, reads:'

At that point the challenged order was quoted. We have already set forth its material parts.

The complaint was filed in the Circuit Court for Multnomah County. It alleges all of the following: The plaintiff is a dentist. The defendant is a Delaware corporation. Prior to April 29, 1952, the defendant manufactured and sold to the plaintiff a hypodermic needle for use in his dental practice in Eugene. The defendant warranted that the needle was sound and free of latent defects. April 29, 1952, the plaintiff injected the needle 'into the upper left molar and bicuspid area of the mouth' of a patient. The needle was not fit for the intended purpose and broke in the patient's mouth. As a result of the breach of its warranty by the defendant, the plaintiff suffered damages in the amount of $862.

The bill of exceptions states that the plaintiff delivered the summons and a copy of the complaint to the sheriff of Multnomah county for service upon the defendant. It also states:

'Said summons and complaint were delivered by said sheriff in Multnomah County, Oregon, on March 18, 1953, to William Fraser, a sales representative of the defendant above-named.'

'Thereafter', we are again quoting from the bill of exceptions, 'defendant filed a motion to quash the summons, the service thereof and the return of the Sheriff with respect thereto which said motion omitting formal parts read as follows:

"Comes now the defendant and, appearing specially for the purpose of making this motion and for no other purpose whatever, moves the court for the entry of an order quashing the summons heretofore issued in this cause, the service thereof and the return of the sheriff with respect thereto, for these reasons:

"(1) The defendant is a private corporation.

"(2) W. H. Fraser, the person on whom the summons was served, is simply a sales representative of the defendant, and is not, nor was he on the date of such service, the president or other head of the defendant, vice-president, secretary, cashier, assistant cashier, or managing agent of the defendant, nor is or was he on the date of such service an attorney-in-fact designated by the defendant to receive and accept such service, nor was he on the date of such service a clerk or agent of the defendant residing in or found in the county in which the cause of action is alleged by the plaintiff to have arisen.

"(3) He was served in Multnomah County, Oregon, but there is no allegation in the complaint that the cause of action arose in that county.

"Statement of Point Relied Upon

"This motion is based on Section 1-605, O.C.L.A., as amended, which declares that service can be made on a sales representative only in the county in which the cause of action arose."

The bill of exceptions states that the court disposed of the motion by an order reading as follows:

'The motion to quash the summons, the service thereof, and the return of the Sheriff with respect thereto, heretofore filed on behalf of the above named defendant, having been brought on regularly for hearing, and the attorney for the plaintiff and the attorney for the defendant having presented their arguments in open court, and it appearing to the court that the said motion should be granted, and the court being fully advised in the premises,

'It Is Ordered that the summons in this cause, the service thereof, and the return of the Sheriff with respect thereto, be and they hereby are quashed.'

It will be observed that the motion to quash was accompanied with a 'Statement of Point Relied Upon' and that the latter declared: 'This motion is based on Section 1-605, O.C.L.A., as amended'. Amended § 1-605, O.C.L.A., apart from two minor grammatical corrections which were made upon the suggestion of the Statute Revision Council, is now ORS 15.080; it follows:

'The summons shall be served by delivering a copy thereof, together with a copy of the complaint prepared and certified by the plaintiff, his agent or attorney, or by the county clerk, as follows:

'(1) If the action is against a private corporation, to the president or other head of the corporation, vice-president, secretary, cashier, assistant cashier or managing agent, or, in case none of such officers reside or have an office in the county where the cause of action arose, then to any attorney in fact who may have been designated by the corporation to receive and accept such service, or to any clerk or agent of the corporation who may reside or be found in the county, or, if no such officer be found, then by leaving a copy thereof at the residence or usual place of abode of such clerk or agent.'

We copy the following from the defendant-respondent's brief:

"Respondent is a foreign corporation which has not qualified to do business in this state nor appointed any statutory agent for service herein, nor can any one county in the state be said to be its principal place of business as against any other county.'

'That sentence appears in Appellant's brief, page 13. While all the facts stated therein are not supported by the record, the entire statement is true and it is accepted as such by Respondent.'

The motion to quash presented no contention that the defendant was not doing business in Oregon. By reverting to the motion, it will be observed that it stated:

'This motion is based on Section 1-605, O.C.L.A., as amended, which declares that service can be made on a sales representative only in the county in which the cause of action arose.'

Rule 15 of the Circuit Court for Multnomah County says:

'An attorney interposing a * * * motion * * * must subjoin thereto a statement of the specific points or propositions of law upon which he relies * * *. Attorneys must use every effort to advise the Court in advance of argument as to the legal significance of the * * * motion with a basic statement of the law supporting the same.'

Thus the motion confined its attack upon the service to a contention that § 1-605, O.C.L.A., authorizes the delivery of the complaint and summons to a sales representative such as Fraser only in the county in which the cause of action arose. It is clear that when the circuit court considered the motion it had no particulars except those of which we have taken notice, for the respondent's brief declares:

'It is true that there were no further proceedings in the case and that no testimony was taken as to the status of Respondent or of William Fraser, the person on whom service was made. The respondent's position was based entirely upon the motion and the affidavit supporting it.'

The affidavit to which the paragraph just quoted refers was made by respondent's counsel pursuant to a rule of the circuit court which requires every motion to be accompanied with an affidavit declaring that counsel submitted it in good faith. Thus we see that the defendant presented to the circuit court no contention that it was not engaged in business in Oregon when the service was made.

Notwithstanding the fact that the defendant did not include in its motion to quash the sheriff's return of service a contention that the defendant did no business in Oregon, its brief on appeal declares:

'There is nothing in the record (Abs. 1-9) which establishes that Respondent was engaged in business in Oregon when the summons was served on its sales representative.

* * *

* * *

'The sales representative in Oregon may have done nothing more than solicit orders in this state and forward them to the principal office of the company in some other state. If that is true and if such orders were accepted at the principal office of the company and the merchandise was shipped from another state into Oregon, Respondent was clearly not engaged in business in Oregon. Winslow Lumber Co. v. Edward Hines Lumber Co., 125 Or. 63, 266 P. 248. Deardorf v. Idaho National Harvester Co., 90 Or. 425, 177 P. 33.

'Having failed to establish that respondent is engaged in business in Oregon, Appellant has failed to show that Respondent is subject to the jurisdiction of the courts of this state.

* * *

* * *

'It is clear, therefore, that the motion to quash was properly granted as the return does not show that Respondent was doing business within the State.'

From the foregoing it is seen that the defendant-respondent's brief wishes us to consider a contention which it did not submit to the circuit court. It asks us to sustain the challenged order by resort to a ground upon which the order does not rest. During oral argument counsel for the defendant-respondent manifested lack of confidence in his contention by declaring 'there is little if any factual basis' for it.

We do not believe that the contention of which we have just taken notice is before us for consideration. We take the following from McIntosh Livestock Co. v. Buffington, 108 Or. 358, 217 P. 635, 636:

'The jurisdiction of this court is confined to a revision of the final decisions of the Circuit Courts, and except as enlarged by article 7, § 2b of the Constitution conferring original jurisdiction upon it in mandamus, quo warranto and habeas corpus...