Sipes v. American Honda Motor Co., Inc.
Decision Date | 03 November 1980 |
Docket Number | No. WD 30954.,WD 30954. |
Parties | Bodean SIPES and Nancy Sipes, Plaintiffs-Respondents, v. AMERICAN HONDA MOTOR CO., INC., Northeast Motorcycle Co., Inc., Defendants, and Cheng Shin Rubber Industrial Co., Ltd. of Taiwan, Defendant-Appellant. |
Court | Missouri Court of Appeals |
Robert J. Campbell, John C. Hickey, Kansas City (Brown, Koralchik & Fingersh, Kansas City, of counsel), for defendant-appellant.
Joseph A. Hamilton, Pleasant Hill, for plaintiffs-respondents.
Before WASSERSTROM, C. J., Presiding, and SHANGLER and MANFORD, JJ.
Cheng Shin Rubber Industrial Co., Ltd. of Taiwan, (hereinafter referred to as defendant) appeals from a judgment awarding damages to plaintiff Bodean Sipes for personal injuries and to Nancy Sipes for loss of consortium. Defendant's sole contention on appeal is that the trial court did not acquire jurisdiction over it by valid service of process. We agree.
Defendant manufactures motorcycle inner tubes which are sold in the United States. In order to market those tubes, it is required by the National Traffic and Motor Vehicle Safety Act (15 U.S.C. § 1381 et seq.) to file with the United States Department of Transportation a designation of an agent to receive service of process. Defendant, through its attorney Alvin G. Greenwald, did file such a designation with the Department which read in part as follows: 1
Upon the filing of their petition against defendant, plaintiffs directed service upon the Secretary of State under Section 351.633, RSMo 1978, which authorizes such service upon any foreign corporation which commits a tort in Missouri. As part of its direction for service, plaintiffs furnished the following instructions:
Prior to trial defendant made a special appearance to challenge jurisdiction and to quash the issuance and service of summons. That motion was overruled, and defendant thereupon applied to this court for a writ of prohibition. That application for prohibition was denied. State ex rel. Cheng Shin Rubber Industrial Co., Ltd. of Taiwan v. Kimberlin, No. KCD30592. Defendant then filed answer in the trial court, in which it repeated its challenge to the court's jurisdiction. The trial resulted in a jury verdict and judgment against this defendant, from which this appeal is being prosecuted.
Section 351.633, under which jurisdiction is asserted against defendant, prescribes the manner of service and notification to the defendant foreign corporation as follows:
In order for service to be effective, those statutory provisions must be met. Absent such compliance, the court is without power to adjudicate. Ponder v. Aamco Automatic Transmission, Inc., 536 S.W.2d 888 (Mo.App. 1976); State ex rel. Craig v. Grimm, 542 S.W.2d 335 (Mo.App.1976); State ex rel. Northwest Ark. Produce v. Gaertner, 573 S.W.2d 391 (Mo.App.1978).
The purported service in this case did not comply with the requirements of Section 351.633-2. Contrary to the requirement that the plaintiff or his attorney provide to the secretary of state the address of the defendant corporation "at its office as shown in the official registry of the state of its incorporation," plaintiffs here gave no home office address for the defendant whatsoever. This failure to comply with the statutory requirement is fatal, even if in fact defendant did receive actual notice of the pendency of this suit. State ex rel. Pressner v. Scott, 387 S.W.2d 539 (Mo. banc 1965); State ex rel. Northwest Ark. Produce v. Gaertner, supra; Ponder v. Aamco Automatic Transmission, Inc., supra.
Plaintiffs say, however, that the service made here was good under subparagraph 3 of Section 351.633, which provides: Plaintiffs argue that another manner permitted by law was provided by the federal statute 15 U.S.C. Sec. 1399(e) which states:
Plaintiffs particularly rely on Bollard v. Volkswagenwerke, A. G., 313 F.Supp. 126 (W.D.Mo.1970), in which a federal district court stated that service for purposes of a common law tort action in Missouri could be obtained upon the agent designated pursuant to the foregoing federal statute.
The vitality of that ruling in Bollard is somewhat diminished by the fact that the plaintiff in Bollard had obtained independent and undoubtedly good service against Volkswagenwerke by having the Secretary of State mail a copy of summons to the defendant corporation's office in Germany. Regardless of that, other courts have more recently disagreed with and have rejected the Bollard view. Thus in an unreported decision, Rubino v. Celeste Motors, Inc., No. 72-CV-350 (D.C.N.Y.1974), Bollard was considered but not followed upon the following reasoning:
Bollard was again considered and rejected in a particularly well considered opinion, Fields v. Peyer, 75 Wis.2d 644, 250 N.W.2d 311 (1977). With respect to this point, the court held as follows:
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...888, 890 (Mo.App. 1976); State ex rel. Craig v. Grimm, 542 S.W.2d 335, 337 (Mo.App.1976). For example, in Sipes v. American Honda Motor Co., Inc., 608 S.W.2d 125 (Mo.App.1980), the plaintiff requested the Secretary of State to forward summons under § 351.633 to "Cheng Shin Rubber Industrial......
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