Walter v. Hotel Brunswick

• Decision Date: 23 July 1965
• Docket Number: No. CV,CV
• Citation: 3 Conn.Cir.Ct. 398,216 A.2d 212
• Court: Connecticut Circuit Court
• Parties: Mary WALTER v. HOTEL BRUNSWICK. 5-655-5180.

Page 212

216 A.2d 212

3 Conn.Cir.Ct. 398

Mary WALTER v. HOTEL BRUNSWICK.

No. CV 5-655-5180.

Circuit Court of Connecticut, Fifth Circuit.

July 23, 1965.

George J. Jaser, Milford, for plaintiff.

Mellitz, Krentzman & Hall, Bridgeport, for defendant.

WISE, Judge.

The complaint alleges that the defendant is a Pennsylvania corporation; that on or about October 13, 1964, the plaintiff purchased a ticket from the defendant's agent, the Milford Travel Agency, Inc., located in Milford, Connecticut, for a weekend Pennsylvania tour; that when the plaintiff arrived in Pennsylvania she was provided with a room on the second floor in the defendant's hotel; that on October 15, 1964, at approximately 9:15 p. m., the plaintiff was descending the main flight of stairs in the hotel when she was caused to slip and fall, sustaining injuries; and that the fall was due to the negligence of the defendant. On May 20, 1965, service of the writ, summons and complaint was made on 'The Milford Travel Agency, Inc. (Designated as agent for service for the Hotel Brunswick, the within named Defendant by the Plaintiff's attorney) * * *,' as appears by the officer's return endorsed thereon. The defendant appeared specially for the purpose of contesting the jurisdiction and filed a plea in abatement on the ground that 'the court has no jurisdiction because it is not incorporated under the laws of the State of Connecticut and The Milford Travel Agency, Inc., upon whom service was made, is not an agent of the Defendant and the Defendant, therefore, was not properly served in this action.'

From the evidence adduced at the hearing, the court finds the following facts: The defendant is a Pennsylvania corporation, conducting a hotel business in Lancaster, Pennsylvania. On or about October 13, 1964, the plaintiff, a resident of Milford, Connecticut, purchased a ticket for Casser's Pennsylvania Dutch Tour through The Milford Travel Agency, Inc., of Milford. On arrival in Lancaster, plaintiff was provided with a room in the defendant hotel. Casser Tours is an organization providing bus transportation, sight-seeing and accommodations in the United States and in foreign countries, maintaining an office in New York City. The brochure issued by Casser Tours advertising this particular tour states: '[O]ur destination is Lancaster, Pennsylvania where rooms are assigned for two nights at the comfortable Brunswick Hotel.' The following also appears under the designation 'Responsibility': 'Casser Tours, div. of Manhattan Transit Co., acts only as agents and assumes no liability in arranging hotel and other accommodations and cannot be held responsible for non-performance on the part of the hotel proprietor. In the event changes are necessary for the comfort and well being of our patrons, Casser Tours reserves this right without penalty.' The Milford Travel Agency is an independent service organization carrying on a business usually associated with a travel agency. It receives a commission based on the sale of transportation tickets, bookings, tours, etc. It did not organize the tour, had no connection with the tour, and had nothing to do with any of its arrangements; nor did not travel agency have any affiliation with Casser Tours. The extent of its activity was to sell a ticket to the plaintiff for the tour. The Milford Travel Agency never had any correspondence with or from the defendant, never made any direct bookings with the defendant, never had any business dealings with it, never advertised for or made any reference to the defendant in its advertisements, and had no actual knowledge of the defendant. The defendant did not maintain an office, a telephone, a telephone listing, or salesmen in this state, nor did it conduct its business, consisting of the operation of a hotel, in this state.

The question presented for determination is whether under the factual situation in the instant case the defendant is amenable to service under § 33-411(b) of the General Statutes. There is no reported case from Connecticut courts dealing with a comparable factual situation.

Each case in which the question of doing business is raised must stand upon its own peculiar facts. So, in the instant case, the determination whether or not the defendant, a foreign corporation, was transacting business in this state under § 33-396 of the General Statutes must be made upon all of the facts. Eljam Mason Supply, Inc. v. Donnelly Brick Co., 152 Conn. 483, 485, 208 A.2d 544, 546; Armor Bronze & Silver Co. v. Chittick, 221 F.Supp. 505, 511 (D.Conn.). 'In the determination whether a foreign corporation is subject to the provision of our statutes requiring a certificate to transact business, the considerations are different from those involved in the determination whether a foreign corporation is subject to suit in our courts. See General Statutes, §§ 33-397, 33-411. These statutes clearly indicate that although certain activities may not constitute doing business in this state, they would suffice to subject the foreign corporation to service of process.' Eljam Mason Supply, Inc. v. Donnelly Brick Co., supra. Section 33-397 enumerates acts which do not constitute transacting business. In Connecticut Tool & Mfg. Co. v. Bowsteel Distributors, Inc., 24 Conn.Sup. 290, 296, 190 A.2d 236, 239, this section was likewise construed: 'A foreign corporation shall not be considered to be transacting business in this state solely because it carries on in this state one or more of the enumerated activities. This does not exclude a finding that a foreign corporation transacts business in this state if its other activities lead to that conclusion.' The pertinent portion of § 33-411(b) provides: 'Every foreign corporation which transacts business in this state in violation of section 33-395 or 33-396 shall be subject to suit in this state upon any cause of action arising out of such business.' Since the defendant is not one of the types of corporations listed in § 33-395, that section is not applicable. Section 33-396 reads in part: 'No foreign corporation except an insurance or surety or indemnity company shall transact business in this state until it has procured a certificate of authority so to do from the secretary of state.'

Since Pennoyer v. Neff, 95 U.S. 714, 24 L.Ed. 565, there has been a radical change in the law affecting judgments against persons not served with process within their boundaries. In International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, the court recognized the 'solicitation plus' doctrine and upheld jurisdiction upon proof of systematic and continuous business activities in the state. The court recognized the 'continuing process of evolution,' which in part 'is attributable to the fundamental transformation of our national economy over the years,' in McGee v. International Life Ins. Co., 355 U.S. 220, 78 S.Ct. 199, 2 L.Ed.2d 223. See Riverside & Dan River Cotton Mills v. Menefee, 237 U.S. 189, 194, 35 S.Ct. 579, 59 L.Ed. 910. In Sheridan v. Cadet Chemical Corporation, 25 Conn.Sup. 17, 20, 195 A.2d 766, 768, the court stated: 'The broad terms of § 33-411, which became effective as of January 1, 1961, indicate an intention on the part of the legislature to empower our courts to exercise jurisdiction over foreign corporations to the greatest permissible extent.' But in Armor Bronze & Silver Co. v. Chittick, supra, 221 F.Supp. 514, the court stated: 'Section 33-411 has facilitated the service of process on foreign corporations but has done so without broadening the definition of the words 'transacting business'; nor is there in this statute any direction to the courts to adopt a constantly broadening definition of the words.'

The plaintiff...