Walker v. Savell, W-C-34-62.

• Decision Date: 10 May 1963
• Docket Number: No. W-C-34-62.,W-C-34-62.
• Citation: 218 F. Supp. 348
• Parties: Edwin A. WALKER, Plaintiff, v. Van H. SAVELL and Associated Press, Defendants.
• Court: U.S. District Court — Northern District of Mississippi

218 F. Supp. 348

Edwin A. WALKER, Plaintiff, v. Van H. SAVELL and Associated Press, Defendants.

No. W-C-34-62.

United States District Court N. D. Mississippi, W. D.

May 10, 1963.

C. J. Watts, Oklahoma City, Okl., Murray L. Williams, Water Valley, Miss., Joe W. Matthews, Dallas, Tex., John W. Capers, Jackson, Miss., for plaintiff.

Wells, Thomas & Wells, Jackson, Miss., Fred B. Smith, Ripley, Miss., for defendants.

CLAYTON, District Judge.

This cause, based at least in part on an alleged libel, was originally filed in the Circuit Court of Lafayette County, Mississippi, but was timely removed to this court on November 9, 1962. On November 14, 1962, the defendant, the Associated Press, filed a motion to dismiss the complaint or in lieu thereof to quash the return of summons as against it on the grounds that it is a New York corporation and is neither qualified nor doing business within the State of Mississippi, and, therefore, not subject to service of process within the Northern District of Mississippi. This motion was submitted on memorandum briefs and affidavits by the parties and is now for disposition by the court.

The issue presented by this motion may be simply stated as follows: Was the Associated Press doing business in Mississippi within the meaning of § 1437, Mississippi Code Annotated (1942)?¹ This section provides for service of process in this state in actions for damages against non-residents.

This is a question of state law and a question governed by judicial interpretation of § 1437 by the state courts of Mississippi. This point was argued separately and extensively by movants in their affirmative brief, and was admitted by respondents in their answer brief. Yet respondents urge also that the case of International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1948) has somehow changed or "liberalized" the Mississippi law in this regard. To this effect they cite and interpret certain Mississippi cases, which were decided after the International Shoe case and urge that the doctrine announced by the Mississippi Supreme Court in Lee v. Memphis Publishing Co., 195 Miss. 264, 14 So.2d 351, 152 A.L.R. 1428 (1943) has been somehow modified by this "liberal trend". Movants have argued in their brief in replication that the trend of these later cases do not indicate such a holding, but in stricter sense such arguments go beyond the point involved in this motion. It is not this court's function to speculate what the judgment of the Mississippi court might be today on this set of facts, but rather it is to determine what judgment has already been made by the courts of this state.

The function of the federal courts in this regard has been explicitly set out in the Fifth Circuit in just such a case as the one at bar. Judge Hutcheson in Rosenthal v. Frankfort Distillers Corp., 193 F.2d 137 (5 Cir.1951) points out that to argue that later decisions of the United States Supreme Court, such as International Shoe, have rendered more comparable cases inapplicable misconceives the primary issue. The issue, Judge Hutcheson states, is not what construction would the state court give a set of facts under a process statute, but rather what construction has these facts already been given.

For such a holding in other federal jurisdictions, see, for example, Pulson, et al. v. American Rolling Mill Co., 170 F.2d 193 (1 Cir.1948).

Each case must turn on its own set of facts. This argument is announced by both parties in advancing their contentions. Thus, if the Mississippi Supreme Court has announced a decision in this area of "doing business" with specific regard to the newspaper business, as it has in the case of Lee v. Memphis Publishing Co., supra, this court need not concern itself with other decisions such as Jarrard Motors, Inc. v. Jackson Auto Supply Co., 237 Miss. 660, 115 So.2d 309 (1959) involving the automobile business, and advanced by the respondents at length, or even the movant's Livestock Services, Inc. v. American Cyanamid Co., Miss., 142 So.2d 210 (1962) involving sales of anthrax vaccine, unless it should find that the Lee case does not apply.

In the final analysis, the question now before the court is: Do the facts here fall within the Lee decision? Clearly they do.

The Lee case involved the gathering of news and the sale of a product, The Commercial Appeal, within the State of Mississippi by a foreign corporation, the Memphis Publishing Company. The Mississippi Supreme Court held that they were not doing business within this state within the meaning of what is now § 1437, Mississippi Code Annotated (1942).

The activities in this state of the defendant, the Associated Press, are before the court on affidavit of...