Southern Pacific Transp. Co. v. Fox

• Decision Date: 22 July 1992
• Docket Number: No. 89-CA-0381,89-CA-0381
• Parties: SOUTHERN PACIFIC TRANSPORTATION COMPANY v. Dudley Wayne FOX.
• Court: Mississippi Supreme Court

Page 357

609 So.2d 357

SOUTHERN PACIFIC TRANSPORTATION COMPANY v. Dudley Wayne FOX.

No. 89-CA-0381.

Supreme Court of Mississippi.

July 22, 1992.

Rehearing Denied Dec. 31, 1992.

Charles G. Copeland, Michael W. Baxter, Copeland Cook Taylor & Bush, Jackson, for appellant.

William W. Ramsey, C.E. Sorey, II, Ramsey & Sorey, Vicksburg, Mitchell H. Tyner, Wm. Roberts Wilson, Jr., P.A., Jackson, for appellee.

En Banc.

ROBERTSON, Justice, for the Court:

I.

Today's appellant--a railroad whose tracks lie entirely west of the Mississippi--has been successfully sued on a Texas tort and appeals, asking that we hold there is nothing within the positive law of this state that renders the railroad amenable to suit here. On a fair reading of our non-resident amenability rules, the railroad is right.

We reverse.

II.

Dudley Wayne Fox, thirty-seven, is an adult resident citizen of Texas, residing at 1218 Crestridge, Ennis, Texas. In the Spring of 1987, Fox was employed with Southern Pacific Transportation Company, a railroad corporation having its principal place of business in Lafayette, Louisiana, but not qualified to do business in Mississippi. Fox was the Plaintiff below and is the Appellee here. Southern Pacific was the Defendant below and is the Appellant here.

On April 19, 1987, Fox was serving as a railroad brakeman and was working in Southern Pacific's railroad yards in Hearne, Texas. Late that afternoon, Fox discovered an open plug door on one of the rail cars. After reporting the fact, Fox aided and assisted Southern Pacific's trainmaster, R.A. McCall, in an effort to close the plug door on boxcar No. SP6971186 with the use of a "come-along." During this process, the come-along slipped and struck Fox on his left hand, causing severe and disabling personal injuries.

Fox is a total Texan. There is no suggestion he has ever had anything to do with Mississippi prior to this action. Soon after his accident, Fox engaged the services of Herschel L. Hobson, attorney, of Port Arthur, Texas. On May 13, 1988, Fox invoked rights afforded him under the Federal Employers' Liability Act (FELA), 45 U.S.C. Sec. 51 et seq., and filed his complaint against Southern Pacific in the District Court of Jefferson County, Fifty-Eighth Judicial District, Texas, Docket No. A129136. Without dispute, process was served on Southern Pacific's registered agent in Houston, Texas.

For reasons not made apparent, on July 12, 1988, Fox, having employed Vicksburg counsel, filed an almost identical complaint in the Circuit Court of Warren County, Mississippi, again naming Southern Pacific as defendant and invoking his FELA rights. ¹

On November 23, 1988, the District Court in Beaumont, Texas, dismissed Fox's Texas action without prejudice.

Southern Pacific answered and as its "First Defense" denied that it was amenable to personal jurisdiction in the State of Mississippi. Southern Pacific thereupon filed a separate motion to dismiss under Rule 12(b)(2), Miss.R.Civ.P., and the matter of Southern Pacific's amenability to suit in Mississippi thereafter became a principal subject of pre-trial litigation. On November 28, 1988, the Circuit Court entered its order denying the motion to dismiss. The matter proceeded to trial in the Circuit Court of Warren County, and in due course the jury returned a verdict in favor of Fox and against Southern Pacific in the amount of $200,000.00. Final judgment was entered thereon.

Southern Pacific now appeals to this Court.

III.

A.

Southern Pacific presents but a single issue. ² It claims the Circuit Court erred when it denied the Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction. Southern Pacific argues this state has no law that affirmatively provides non-resident corporations, factually situated as is Southern Pacific, are amenable to suit in here in tort actions such as this.

For clarity, the issue is wholly independent of constitutional due process concerns, the familiar soundbite expressions of which are "minimum contacts" and "fair play and substantial justice" flowing from International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), and progeny. This due process shield--"immunity" might be a more accurate term, Administrators of the Tulane Educational Fund v. Cooley, 462 So.2d 696, 702 (Miss.1984), is conceptually and legally distinct from today's issue and, indeed, is irrelevant thereto. ³

All agree that Southern Pacific's tracks lie exclusively west of the Mississippi River. From time to time, Southern Pacific undertakes for hire the transportation of goods to and from points east of the Mississippi. In that connection it has business arrangements with Mid-South Railroad Company, Illinois Central Gulf Railroad Company, and Burlington Northern Railroad Company, each of which, from time to time, receives eastbound shipments of cargo from Southern Pacific and transports those in interstate commerce across this state or delivers west-bound cargo to Southern Pacific after a trans-Mississippi shipment. Moreover, it appears Southern Pacific owns and operates a trucking company which transports cargo in interstate commerce and, from time to time, carries freight for hire through and across this state. We find in the record a list of forty-two companies in this state with business relationships with Southern Pacific, generally by way of contracts of carriage. For example, the Southern Pacific regularly carries freight for Batesville Casket Company, domiciled in Panola County, Mississippi. Assorted other business arrangements with Mississippi firms are shown, including a law firm in Greenville, Mississippi, but what is important is not a word in the record suggests Dudley Wayne Fox or his accident in the railyard at Hearne, Texas, have even the slightest connection with this state or with any business Southern Pacific does here.

Southern Pacific has not qualified to do business in Mississippi and has no agent for process in this state, nor does the record reflect the name of any other officer, agent, employee, or personnel within this state. In spite of this general talk about business activities with Mississippi firms, Fox's proof in no way suggests that there is a single warm-bodied human being in this state upon whom process might be served effectively, nor that there is a single identifiable fixed asset here that might be attached.

B.

The parties' principal battleground is our most familiar long-arm statute, Miss.Code Ann. Sec. 13-3-57 (Supp.1988). That statute is an affirmative declaration of conditions upon which non-residents such as Southern Pacific may be held amenable to suit in this state. Referring to non-resident corporations not qualified to do business here, it provides amenability for those

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 or non-resident of this state, or who shall do any business or perform any character of work or service in this state,....

The statute then provides that any non-resident coming within any of these three descriptions--contract, tort, or doing business--

shall by such act or acts be deemed to be doing business in Mississippi.

Of importance, such "act or acts" renders the non-resident amenable to suit here only

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,....

A nexus requirement has always been in our long arm statute, and a bit of archeology makes this apparent. Prior to 1964, it was settled law that our "doing business" long arm statute was limited.

The cause of action must arise from, or be connected with such act or transaction.

Mladinich v. Kohn, 250 Miss. 138, 148, 164 So.2d 785, 790 (1964). In 1964 the legislature acted, Miss. Laws ch. 320 (1964), and added the "tort" and "contract" grounds for non-resident amenability to suit here. It made no substantive change in the Mladinich nexus limitation on "doing business" amenability. ⁴ In 1978 and 1980 the statute was further amended, but the nexus test quoted above was was re-enacted verbatim. Miss. Laws ch. 378, Sec. 1 (1978); and Miss. Laws ch. 437, Sec. 1 (1980). All who looked at the point have seen the successive generations of the act continuing the nexus rule. ⁵ See Applewhite v. Metro Aviation, Inc., 875 F.2d 491, 494 (5th Cir.1989); Rittenhouse v. Mabry, 832 F.2d 1380, 1385 (5th Cir.1987); Smith v. DeWalt Products Corp., 743 F.2d 277, 279 (5th Cir.1984); Mills v. Dieco, Inc., 722 F.Supp. 296, 298 (N.D.Miss.1989); Thompson v. F.W. Woolworth Co., 508 F.Supp. 522, 523 (N.D.Miss.1981).

C.

Fox concedes he is not within the contract or tort prongs of Section 13-3-57. Nothing in the record remotely suggests that his action arises out of a contract in this state. He sues Southern Pacific in tort but makes no claim that Southern Pacific has committed this "tort in whole or in part in this state."

For his third strike, Fox presses the point that Southern Pacific may well have done "any business or perform[ed] any character of work or service in this state." Southern Pacific quickly replies that, though this be so, the nexus test is not met. The fact Southern Pacific may have done business in this state does not render it amenable to suit under Section 13-3-57 unless Fox's action "accrued ... from such ... [business] ..., or as an incident thereto,...."

We had this language before us in McDaniel v. Ritter, 556 So.2d 303 (Miss.1989), and said:

The long-arm statute requires no direct nexus to the non-resident's business done here, only that the claim be incident thereto. The statute thus requires far less than that the liability generating conduct have occurred in Mississippi.

McDaniel, 556 So.2d at 309. McDaniel was a wrongful death action brought on behalf of survivors of a businessman/passenger...