Smyth v. Twin State Imp. Corp., No. 1025

• Docket Nº: No. 1025
• Citation: 80 A.2d 664, 25 A.L.R.2d 1193, 116 Vt. 569
• Case Date: May 01, 1951
• Court: United States State Supreme Court of Vermont

Page 664

80 A.2d 664 116 Vt. 569, 25 A.L.R.2d 1193 SMYTH
v.
TWIN STATE IMPROVEMENT CORP. No. 1025. Supreme Court of Vermont. May 1, 1951.

Page 665

[116 Vt. 570] Bloomer & Bloomer, Rutland, for plaintiff.

Charles J. Marro, Rutland, for defendant.

Before [116 Vt. 569] SHERBURNE, C. J., and JEFFORDS, CLEARY, ADAMS and BLACKMER, JJ.

[116 Vt. 570] BLACKMER, Justice.

This is an action of tort. The complaint sets forth these facts. The plaintiff, a resident of Rutland, this state, owned and occupied a house therein. The defendant, a builder and roofer by trade, endeavored to re-roof the house and put metal edgings on the sides thereof. While so doing it negligently placed holes in the roof and sides of the buildings which caused it to leak water, with specified damage to the plaintiff.

The defendant is a foreign corporation. Service on it was made by delivering a copy of the writ to the Secretary of State as process agent for the defendant under V.S.1947, § 1562; by forwarding a copy of the process, with the officer's return thereon showing such service, to the foreign corporation by registered mail at its principal place of business in Massachusetts, where it is incorporated, and by filing with the process an affidavit of compliance, both as required by V.S.1947, § 1563. The defendant appeared specially and moved to dismiss on the grounds (1) that the complaint did not show the commission of a tort in Vermont, as required by V.S.1947, § 1562; and (2) that V.S.1947, § 1562 is unconstitutional. After hearing the motion to dismiss was granted for want of allegation in the plaintiff's complaint of the requisite jurisdictional facts; the constitutional question was neither reached nor considered. The plaintiff carries her exceptions here.

The defendant seeks to support the ruling on the ground that the complaint does not allege the existence of a duty on the part of the defendant to the plaintiff. It is well established that before liability attaches for negligence such a duty must arise. Coburn v. Village of Swanton, 94 Vt. 168, 170, 109 A. 854; Terrill v. Spaulding, 115 Vt. 342, 346, 61 A.2d 611; Trudo v. Lazarus, 116 Vt. 221, 223, 73 A.2d 306; Agosta v. Granite City Real Estate Co., Inc., Vt., 80 A.2d 534.

The defendant thinks that if any duty existed it must have arisen under some contract. The complaint is silent as to any contract; for all that appears the defendant was a volunteer, grantuitously making repairs. But if it was, that is not fatal to the plaintiff's case. Even a volunteer or a stranger is liable for an injury negligently inflicted on the property of another; the law imposes an obligation upon everyone who attempts to do anything for another, [116 Vt. 571] even gratuitously, to exercise some degree of care and skill in the performance of what he has undertaken, for nonperformance of which duty an action lies. 38 Am.Jur.Negligence, § 17; 65 C.J.S., Negligence, § 4b; Restatement of the Law of Torts, Vol. 2, § 323(1) and Comment a. thereto. The ground upon which the trial court placed its ruling is not sound.

The second claim of the defendant, viz., that V.S.1947, § 1562 is unconstitutional presents a question of much more consequence, and much greater difficulty. The argument is that the statute 'abrogates the general rule' which is said to be that single or isolated acts will not ordinarily be regarded as such a doing or carrying on of business as to subject a foreign corporation to the jurisdiction of a state court via the medium of substituted service. It is not questioned that the method of notice employed by V.S.1947, § 1563 is reasonably calculated to give actual notice to the defendant of the pendency of the litigation; that subject is not a topic of discussion herein.

V.S.1947, § 1562, which is the focus of the defendant's attack reads as follows: '1562. Doing business, definition, service of process. If a foreign corporation makes a contract with a resident of Vermont to be performed in whole or in part by either party in Vermont, or if such foreign corporation commits a tort in whole or in part in Vermont against a resident of Vermont, such acts shall be deemed to be doing business in Vermont by such foreign corporation

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and shall be deemed equivalent to the appointment by such foreign corporation of the secretary of the state of Vermont and his successors to be its true and lawful attorney upon whom may be served all lawful process in any actions or proceedings against such foreign corporation arising from or growing out of such contract or tort. The making of such contract or the committing of such tort shall be deemed to be the agreement of such foreign corporation that any process against it which is so served upon the secretary of state shall be of the same legal force and effect as if served on the foreign corporation at its principal place of business in the state or county where it is incorporated and according to the law of that state or county.'

[116 Vt. 572] In our examination we shall limit ourselves to the precise problem presented: Has the State of Vermont the power to subject by statute to the jurisdiction of its courts a foreign corporation which commits a single tort in whole within the territorial limits of Vermont and against a resident of Vermont to actions and proceedings against it arising from or growing out of such tort? Does such a statute violate the due process clause of the Fourteenth Amendment to the Constitution of the United States of America?

The treatment must begin with International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95. Prior to that case the power of a state to render a personal judgment against a foreign corporation was based on various concepts, the courts most often referring to 'implied consent' by the corporation to the exercise of jurisdiction, or to the 'presence' of the corporation wherever its activities are carried on. Under either fiction the extent of the activities of the foreign corporation within the state of the forum is of importance. The phrase 'doing business', so often used by the courts, expresses a conclusion of fact and denotes the result of a policy judgment. 16 U.Chi.L.Rev. 523, 524.

These fictions were expressly discarded by the United States Supreme Court speaking through Chief Justice Stone, in International Shoe Co. v. State of Washington, supra, 326 U.S. 316, 317, 66 S.Ct. 158. For them was substituted the test that the foreign corporation is required to have 'certain minimum contacts with it [the forum] such that the maintenance of the suit does not offend 'traditional notions of fair play and substantial justice''. 326 U.S. 316, 66 S.Ct. 158. The demands of due process 'may be met by such contacts of the corporation with the state of the forum as make it reasonable, in the context of our federal system of government, to require the corporation to defend the particular suit which is brought there.' 326 U.S. 317, 66 S.Ct. 158.

International Shoe Co. v. State of Washington notices, 326 U.S. at 318, 66 S.Ct....