State ex rel. Newport v. Wiesman, 62788

• Decision Date: 09 February 1982
• Docket Number: No. 62788,62788
• Citation: 627 S.W.2d 874
• Parties: STATE of Missouri, ex rel. Mark J. NEWPORT, Relator, v. Honorable Melvyn WIESMAN, Judge of the Circuit Court of the County of St. Louis, Respondent.
• Court: Missouri Supreme Court

Page 874

627 S.W.2d 874

STATE of Missouri, ex rel. Mark J. NEWPORT, Relator, v. Honorable Melvyn WIESMAN, Judge of the Circuit Court of the County of St. Louis, Respondent.

No. 62788.

Supreme Court of Missouri, En Banc.

Feb. 9, 1982.

Rehearing Denied March 9, 1982.

Don B. Sommers, Prudence W. Kramer, St. Louis, for relator.

John C. Shepherd, Richard A. Mueller, St. Louis, for respondent.

MANDAMUS

WELLIVER, Judge.

This is an original proceeding in mandamus. Relator, Mark J. Newport, sought an alternative writ of mandamus to compel the respondent, Judge Melvyn Wiesman, to assume jurisdiction over the underlying law suit between Newport and Beech Aircraft Corporation (Beech) and to set aside his order which was phrased in terms of dismissing the law suit for lack of personal jurisdiction but which amounted to an order quashing the service herein. The Missouri Court of Appeals, Eastern District, issued a preliminary writ and later quashed that writ. We ordered this case transferred because we view the issues involved herein to be of general interest and importance. Rule 83.03. ¹ We conclude that Beech Aircraft Corporation, defendant in the underlying suit, is subject to the jurisdiction of Missouri courts with respect to the cause of action brought by relator and order the preliminary writ made peremptory.

Portions of the court of appeals opinion have been adopted and used herein without quotation marks.

The underlying litigation arose when the plane in which relator, Mark J. Newport, was riding crashed in Chamblee, Georgia. Relator, a resident of St. Louis County, instituted suit for personal injuries in the Circuit Court of St. Louis County against the pilot of the plane, George Richmond, ² and the plane's manufacturer, Beech Aircraft Corporation. Defendant Richmond is a resident of St. Louis County. Beech is a Delaware Corporation with its principal place of business in Kansas.

It is undisputed that Beech manufactured the plane at its facility in the state of Kansas. Beech sold the plane, on July 13, 1964, to the Elliott Flying Service, an entity in Illinois. The plane was subsequently sold one or more times and ultimately was purchased by the Flib Flying Club of Missouri. Flib housed, serviced and maintained the aircraft in Missouri. Defendant Richmond was a member of the flying club and took the plane for the purpose of flying relator and himself to Atlanta, Georgia, to attend a business meeting. The plane, crashed on take off for the return flight to St. Louis. Relator's cause of action against Beech for damages was grounded on strict liability in tort for the manufacture of a defective airplane.

Relator obtained process upon defendant Beech by personal service in the state of Kansas pursuant to the provisions of §§ 506.500 ³ and 506.510. ⁴ Beech filed a motion to dismiss or in the alternative to quash service on the basis that it was not subject to personal jurisdiction under any provision of § 506.500. The trial court granted the motion. Defendant Beech does not argue that relator has failed to state a cause of action. Since the sole basis for Beech's motion was that service was improper, the proper order for the trial court to have made if it found service improper was an order to quash that service. State ex rel. Caine v. Richardson, 600 S.W.2d 82, 83 (Mo.App.1980). We will treat the order as one quashing service which may be challenged by mandamus.

Relator asserts that Beech has been involved in the transaction of business within this state and that his cause of action arose from such business transactions. § 506.500.1(1). Relator further asserts that Beech was involved in the commission of a tortious act within this state and that his cause of action arose from such tortious act. § 506.500.1(3). Relator also contends that Beech has sufficient contacts with Missouri that it would not offend due process to compel Beech to defend itself in Missouri courts with respect to the underlying cause.

Respondent argues that relator's cause of action against Beech did not arise either from the transaction by Beech of any business within Missouri or from the commission by Beech of a tortious act within Missouri. Respondent also argues that Beech does not have "minimum contacts" with Missouri sufficient to compel Beech to defend itself in Missouri courts without offending "traditional notions of fair play and substantial justice." International Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 158, 90 L.Ed. 95 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 61 S.Ct. 339, 85 L.Ed. 278 (1940)).

I

The Court in State ex rel. Deere & Co. v. Pinnell, 454 S.W.2d 889, 892 (Mo. banc 1970), declared that, in enacting § 506.500, "the ultimate objective was to extend the jurisdiction of the courts of this state over non-resident defendants to that extent permissible under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States." Accord State ex inf. Danforth v. Reader's Digest Association, Inc., 527 S.W.2d 355, 358 (Mo. banc 1975); M & D Enterprises, Inc. v. Fournie, 600 S.W.2d 64, 68 (Mo.App.1980). Pursuant to this objective, Missouri courts have interpreted the words "transaction of any business within this state" or "commission of a tortious act within this state" broadly so as not to deny jurisdiction under § 506.500 in situations in which the due process clause would permit the assertion of personal jurisdiction. Simpson v. Dycon International, Inc., 618 S.W.2d 455 (Mo.App.1981); State ex rel. Caine v. Richardson, 600 S.W.2d 82 (Mo.App.1980); State ex rel. Farmland Industries, Inc., 560 S.W.2d 60 (Mo.App.1977); State ex rel. Peoples Bank of Bloomington v. Stussie, 536 S.W.2d 934 (Mo.App.1976); Ponder v. Aamco Automatic Transmission, Inc., 536 S.W.2d 888 (Mo.App.1976). See also Connelly v. Uniroyal, Inc., 75 Ill.2d 393, 27 Ill.Dec. 343, 389 N.E.2d 155, 158-60 (1979), cert. denied, appeal dismissed, Uniroyal Englebert Belgique, S.A. v. Connelly, 444 U.S. 1060, 100 S.Ct. 992, 62 L.Ed.2d 738 (1980); Marquette National Bank v. Norris, 270 N.W.2d 290, 294-95 (Minn.1978).

Respondent relies heavily upon the language of subsection 2 of § 506.500, suggesting that it requires a narrow reading of the acts enumerated in subsection 1 of § 506.500. We believe respondent misunderstands the purpose of subsection 2.

Section 506.500 and related statutes were modeled after Chapter 110, § 17, Ill.Ann.Stat.1968. ⁵ State ex rel. Deere & Co. v Pinnell, 454 S.W.2d at 891-92. Subsection 3 of that Illinois statute was, at the time Missouri used it as a model, and still is nearly identical to § 506.500.2. The purpose of subsection 3 of the Illinois act is explained in the Joint Committee Comments following Chapter 110, § 17 which provide:

Subsection (3) protects non-residents against the assertion, in an action in which jurisdiction has been obtained under this section, of causes of action not within the scope of the section. Thus, it would prohibit a plaintiff who obtains jurisdiction over a defendant under subsection (1) from asserting by amendment or otherwise a cause of action not within that subsection.

Subsection 3 was not intended to cause a narrow interpretation of the acts enumerated in subsection 1 of Chapter 110, § 17. It was designed to prohibit joinder of a cause of action not arising from the acts enumerated in subsection 1 with a cause of action arising from those acts. We have held that when one state adopts a statute of another state which the courts of the latter state have construed, such construction will be held to have been adopted along with the statute. State ex rel. Phillip Transit Lines v. Public Service Commission, 552 S.W.2d 696, 700 (Mo. banc 1977); State v. Anderson, 515 S.W.2d 534, 539 (Mo. banc 1974). Scheidegger v. Greene, 451 S.W.2d 135, 139 (Mo.1970). We also believe that the Missouri General Assembly, in enacting § 506.500.2 was aware of the meaning attributed to the Illinois statute by the Joint Committee Comments, and intended those terms as incorporated in our own statute to have similar import and meaning. See State ex rel. Deere & Co. v. Pinnell, 454 S.W.2d at 892.

First we must determine whether the requirements of § 506.500.1 have been met; that is, whether the cause of action at issue in the underlying case arose either from "transaction of any business within this state" by Beech, § 506.500.1(1), or from "commission of a tortious act within this state" by Beech. It has been held that there was "transaction of any business within this state" where each one of eight conferences held in Missouri contributed to eventual agreement on a marketing contract, ⁶ where numerous meetings between the plaintiff and the defendants' agent held in Missouri culminated in an option agreement, ⁷ and where the defendant foreign corporation executed a franchise agreement with a Missouri corporation pursuant to which the franchisee Missouri corporation did business. ⁸ The establishment in Missouri of two franchised dealers for the purpose of sale and service of aircraft clearly constitutes "transaction of any business within this state" within the meaning of § 506.500.1(1).

This holding renders it unnecessary to consider whether Beech committed a tortious act within Missouri within the meaning of § 506.500.1(3).

II

We turn now to consideration of the due process clause requirements. Does the business done by Beech in Missouri constitute the "minimum contacts" necessary to permit Missouri courts to assert personal jurisdiction over Beech in the underlying case?

In the recent case World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 291, 100 S.Ct. 559, 563, 62 L.Ed.2d 490 (1980), the Supreme Court reaffirmed the principle that "a state court may exercise personal jurisdiction over a nonresident defendant only so long as there exist 'minimum contacts' between the defendant and the forum State." (quoting International Shoe Co. v. Washington, 326 U.S. 310,...