Smith v. Temco, Inc.
| Decision Date | 28 June 1971 |
| Docket Number | No. 46266,46266 |
| Parties | Melton SMITH and Virginia Brady Smith v. TEMCO, INC. |
| Court | Mississippi Supreme Court |
Bryan, Gordon, Nelson & Allen, Pascagoula & Gulfport, for appellants.
Simrall, Aultman & Pope, Dorrance Aultman, Hattiesburg, for appellee.
Appellants, Melton Smith and Virginia Brady Smith, his wife, were plaintiffs, and appellee, Temco, Incorporated, a Tennessee corporation, domiciled in Nashville, Tennessee, was defendant, in an action for damages in a 'products liability' case brought in the Circuit Court of Pearl River County. The case was voluntarily nonsuited as to defendant A. E. Sanders, doing business as Sanders Plumbing and Electric Supply, and he is no longer involved in this litigation.
Defendant Temco, Incorporated, appeared in the trial court specially for the single purpose of challenging its jurisdiction. Temco's motion to dismiss was heard upon the facts alleged in appellants' declaration, which were accepted as true for the purpose of the hearing, and a stipulation as to certain additional facts. The court sustained Temco's motion to dismiss and held that it was without jurisdiction. From the judgment entered dismissing the action, Melton Smith and Virginia Brady Smith have appealed.
The record shows that appellants were residents of Pearl River County, that they owned a home there, to which an addition had been made in 1964. The house was supplied with electricity and liquified petroleum gas for the usual domestic purposes.
On October 25, 1966, appellants purchased from Sanders Plumbing and Electric Supply Company, a local retailer, a wall or space heater which had been manufactured by Temco. This heater was regulated by a thermostat manufactured by Honeywell, Incorporated, of Minneapolis, Minnesota, (not a party to this litigation) which was packaged with the heater at the factory.
The declaration alleged that 'the proper installation of said wall heater was completed on October 28, 1966.' It was charged that the heater 'continuously and intermittently came off and on and could not be controlled by its thermostat,' and that it 'was not equipped with a high limit control device to prevent over-heating inside the combustion chamber.' It was alleged further that on November 2, 1966, a defect within the heater and thermostat and 'lack of high temperature control device permitted the combustion chamber of said heater to over-heat to the extent that the entire house was kindled and destroyed by fire, together with all its contents.'
The plaintiff's charged that the fire and the insuing loss proximately resulted from inherent defects in the heater which made it 'unreasonably hazardous, dangerous and unsafe,' not reasonably safe for its intended use, and that Temco, as manufacturer and distributor, was liable to them in damages for the loss.
Service of the summons issued for Temco was made upon the Secretary of State of Mississippi as its agent for process under the provisions of Mississippi Code 1942 Annotated section 1437(a) (Supp.1970), known as the 'long arm' statute.
The following additional facts were stipulated. Temco, Incorporated, is a Tennessee corporation, foreign to Mississippi, domiciled in Nashville, Tennessee. It is not qualified to do business in Mississippi nor has it named any person, firm, official or corporation to act as its process agent in Mississippi.
Temco is in the business of manufacturing for sale in interstate commerce, among other things, wall or space heaters. Its products are distributed throughout the United States and are sold in Mississippi. Sales of its products are made to wholesalers through manufacturer's representatives, who also sell the products of serveral other companies, and these, as well as those of Temco, are sold on commission. The heater in question was manufactured by Temco, sold and shipped in interstate commerce to Modern Appliance & Supply Company at New Orleans, Louisiana, which, in turn, sold and shipped it to Sanders Plumbing and Electric Supply, a retailer at Picayune, in Pearl River County, Mississippi. There Sanders sold it to plaintiffs. The thermostat, manufactured by Honeywell, Incorporated of Minneapolis, was packaged with the heater before shipment and Temco played no part in its manufacture or adjustment. Temco had granted no exclusive franchises in Mississippi to any wholesaler, none of its sales people resided in Mississippi, no member of its board of directors lived in Mississippi, it maintained no bank account in Mississippi, its sales manager had been in Mississippi only one time in five years, and neither its service manager nor repairman had ever been to Mississippi.
Thus the narrow question presented for determination on this appeal is squarely posed. Does the Mississippi 'long arm' statute, under the amendment which became effective July 1, 1964, the amended statute now appearing as Mississippi Code 1942 Annotated section 1437(a) (Supp.1970), confer jurisdiction upon the Circuit Court of Pearl River County?
Mississippi Dode 1942 Annotated section 1437(a) (Supp.1970), containing the July 1, 1964 amendment, provides in part:
(a) Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the Constitution and laws of this State as to doing business herein, who shall make a contract with a resident of this State to be performed in whole or in part by any party in this State, or who shall commit a tort in whole or in part in this State against a resident of this State, or who shall do any business or perform any character of work or service in this State, shall be such act or acts be deemed to be doing business in Mississippi. Such act or acts shall be deemed equivalent to the appointment by such nonresident of the Secretary of State of the State of Mississippi, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served in any actions or proceedings accrued or accruing from such act or acts, or arising from or growing out of such contract or tort, or as an incident thereto, by any such nonresident or his, their, or its agent, servant or employee.
(Emphasis added).
Our present concern is limited to an interpretation of this new language, which was inserted by the 1964 amendment: '* * * who shall commit a tort in whole or in part in this State against a resident of this State. * * *'
In State Stove Manufacturing Company v. Hodges, 189 So.2d 113 (Miss.1966), a landmark case in Mississippi jurisprudence this Court adopted the doctrine known as 'products liability' or 'strict liability,' saying:
After careful consideration of the precedents in this and other States, the history of these issues, and the many considerations pertinent to them, which are discussed subsequently, we conclude that the appropriate standards of responsibility are well stated in Section 402A of the American Law Institute's Restatement of Torts (Second), which we adopt insofar as it applies to a manufacturer of a product and to a contractor who builds and sells a house with the product in it. It states:
Special Liability of Seller of Product for Physical Harm to User or Consumer-
(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although.
(a) the seller has exercised all possible care in the preparation and sale of his product, and
(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.
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