Slivka v. Hackley

• Decision Date: 12 June 1967
• Docket Number: No. 2,No. 52058,52058,2
• Citation: 418 S.W.2d 89
• Parties: Lois T. SLIVKA, Executrix of the Estate of Joe Slivka, Deceased, Respondent, v. George W. HACKLEY, Jr., Appellant
• Court: Missouri Supreme Court

Page 89

418 S.W.2d 89

Lois T. SLIVKA, Executrix of the Estate of Joe Slivka Deceased, Respondent, v. George W. HACKLEY, Jr., Appellant.

No. 52058.

Supreme Court of Missouri, Division No. 2.

June 12, 1967.

Motion for Rehearing or for Transfer to Court en Banc Denied

Sept. 11, 1967.

James G. Lauderdale, Lexington, for respondent.

Spencer & Petri, Columbia, for appellant.

JAMES A. MOORE, Special Judge.

Plaintiff-Respondent filed her petition for registration of foreign judgment in Lafayette County, seeking to make a judgment of the Circuit Court of Marion County, Illinois, a final personal judgment pursuant to Civil Rule 74.79, V.A.M.R. Defendant-Appellant moved timely, but unavailingly to quash the service of summons. This Court denied his petition for writ of prohibition (No. 51483). Defendant then moved to dismiss and, this motion being overruled, answered.

Trial was then had, resulting in a judgment for plaintiff and against defendant. The latter has appealed said judgment and assigns as error, among others, the failure of the trial court to accord defendant due process of law guaranteed by our constitutions, state and national. Hence, this Court has jurisdiction of the appeal. Constitution of Missouri, Art. V, Sec. 3, V.A.M.S.

The questions raised do not require a lengthy statement of the facts. Such facts as are to be noticed are to be obtained from the transcript and not from appendices to the briefs of the parties. Koprivica v. Bethesda, General Hospital, Mo., 410 S.W.2d 84.

Plaintiff's decedent was a breeder of trotters and pacers in Illinois. Defendant often visited his farm, had mares serviced there, and discussed the acquisition of the stallion 'Golden Broom'. On August 2, 1958, defendant executed an affidavit, the purport of which was to promise not to breed 'Golden Broom' outside of Illinois during the remainder of 1958. The affidavit is addressed to the Investigator for the Illinois State Fair Colt Stakes. Because of the unusual character of the document and the important inferences as to the Illinois aspects of the transaction which arise from it, the affidavit is reproduced here. ¹ On the evening of August 13, 1958, decedent called defendant on the telephone and defendant sent a check the next morning for $10,000.00. The Illinois investigator gave his consent. Defendant had the horse picked up by a friend from the Illinois farm and brought to Missouri.

Later in 1958, 'Golden Broom' jumped a gate and volunteered his services to 'Ella Chenault', a mare owned by defendant. The fruit of this union was 'Missouri Broom' whose arrival, in violation of the undertaking of the affidavit, made twelve of his siblings ineligible for the Illinois Colt Stakes.

Defendant characterizes 'Missouri Broom's' conception as an act of God for which defendant is not liable. Nonetheless, he registered the colt with the United States Trotting Association, and this action incurred the ire of the owners of seven other colts sired by 'Golden Broom' as well as the owners of five remaining at Gait Way Farm.

Plaintiff's decedent was in ill health and died. Thereafter the Illinois suit was brought under Illinois Revised Statutes, 1957, Chapter 110, Sec. 17(1)(a). After an attempt at service by the Illinois attorney apparently aborted, personal service was had by the sheriff of Lafayette. The Illinois judgment was by default, but a full transcript of the hearing was introduced in the Missouri case.

Plaintiff does not take issue with defendant's contention that the full faith and credit clause of the United States Constitution implicitly requires that the court of the initiating state have jurisdiction over the parties and the subject-matter; nor does this Court. The real questions are whether the statutory provisions cited in the preceding paragraph are valid and whether defendant came within their purview.

The statute is presumptively valid and defendant does not seriously challenge its validity except as this Court should see fit to find it applicable to the facts of the case at bar. We are willing to test the Illinois statute and its application by defendant's criterion quoted from the 'Historical and Practice Notes' of Albert E. Jenner, Jr., and Philip W. Tone to the Smith-Hurd Illinois Annotated Statutes, as follows: 'While the decisions of the United States Supreme Court, which are here controlling, have not always noted the distinction, the requirement that a defendant be accorded 'due process of law' imposes two separate restraints in this area. First, it must appear that the defendant over whom the jurisdiction is asserted had such 'minimum contacts' with the State as to render it consistent with 'traditional notions of fair play and substantial justice' that he be compelled to defend himself there. (Referring to International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95.) Second * * * a method of service must be employed which is reasonably designed to give the defendant actual notice of the pending action against him.'

There should be no question here of service when made by a Missouri sheriff in his own county. What then of the required minimal contact to meet constitutional standards?

Our review of the authorities need not commence with Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, which emphasized the traditional aspects of physical jurisdiction over the parties. Rather, it commences with the now celebrated case of International Shoe Company v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. The holding in that case is succinctly stated in the Jenner and Tone note cited by appellant and quoted in part above. The case, of course, was a tax case and involved a corporation rather than an individual. Still it is clear that in this day and age a person, natural or artificial, may subject himself to the jurisdiction of a court even though a capias ad respondendum may not coerce his physical presence in the forum. (We pass over the notice requirement which is not involved here.) A defendant over whom jurisdiction is asserted must have had such 'minimum contacts' with the state as to render it consistent with 'traditional notions of fair play and substantial justice' that he be compelled to defend himself and to respond to any adverse judgment rendered against him.

Parenthetically, it might be observed that Mr. Justice Black took strong exception to the something less than completely objective approach of testing in accordance with fair play, justice and reasonableness. 326 U.S. at 322 et seq., 66 S.Ct. at 161 et seq.

Just how subjective this determination may be is perhaps as well illustrated in one of the authorities cited by appellant, Hanson v. Denckla, 357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283. The complexities of that case do not justify that it be set forth at length, but it is to be noted that Mr. Chief Justice Warren felt that even in the space age there are limits to the demise of all restrictions on the personal jurisdiction of state courts. In this connection he said, 'However minimal the burden of defending in a foreign tribunal, a defendant may not be called upon to do so unless he has had the 'minimal contacts' with that State that are a prerequisite to its exercise of power over him'. 357 U.S. at 251, 78 S.Ct. at 1238. In that case he and a majority of the court failed to find such contacts. Asice from the complexities of the subject-matter, that case furnishes us even less of a guide in view of the dissent of Mr. Justice Black with whom Mr. Justice Burton and Mr. Justice Brennan joined. See particularly his comments on traditional notions of fair play and substantial justice in terms of the convenience of the forum for all concerned. 357 U.S. at 258 and 259, 78 S.Ct. at 1242 and 1243. Mr. Justice Douglas separately dissented, finding there were more than sufficient contacts to support jurisdiction of the Florida courts. 357 U.S. at 262 et seq., 78 S.Ct. at 1244 et seq.

In the wake of these cases came the decision in Conn v. Whitmore, 9 Utah 2d 250, 342 P.2d 871. Some of the distinguishing characteristics of that case will be indicated, but suffice it to say for our immediate purpose that what might offend the Utah courts as inconsistent with traditional notions of fair play and substantial justice might not find accord in Missouri. The heart of the holding in Conn is the Utah concept of the requirement: '(T)here must be some substantial activity which correlates with the purpose to engage in a course of business or some continuity of activity in the state so that deeming the defendant to be present therein is founded upon a realistic basis and not a mere fiction. That this is so and that a single act or transaction does not suffice unless it fits into the above pattern is well established.' 342 P.2d at 874.

The factual similarities in Conn and the instant case are more or less superficial--in the former, the sale of a filly and mare by a resident of Illinois to a resident of Utah; in the latter, the sale of a stallion by a resident of Illinois to a resident of Missouri. Unlike Hackley, Whitmore did not visit Illinois, have mares serviced there and discuss...