Ward v. Cook United, Inc.
| Decision Date | 03 March 1975 |
| Docket Number | No. KCD,KCD |
| Citation | 521 S.W.2d 461 |
| Parties | George WARD, Respondent, v. COOK UNITED, INC., d/b/a Cook's Discount Department Store, Appellant. 26476. |
| Court | Missouri Court of Appeals |
Don B. Roberson, Kansas City, for appellant.
S. Preston Williams, David Lee Wells, and Theodore Von Willer, Jr., Law Student, North Kansas City, Keith Wilson, Jr., Independence, for respondent.
Before PRITCHARD, P.J., and SWOFFORD, SOMERVILLE and TURNAGE, J.j.
A default judgment was entered against the defendant-appellant in the court below on August 4, 1972 for actual and punitive damages in an action in false arrest and imprisonment. On November 17, 1972, the court overruled the defendant's motion to quash summons, service and return of service and its alternative motion for a new trial, and its alternative motion to set aside the judgment for lack of jurisdiction and venue. This appearance and motion to quash and the alternative requests had been filed on August 18, 1972, 14 days after the entry of the default judgment. Following the orders of the trial court on November 17, 1972, the defendant appealed.
The defendant raises two points which it urges requires reversal.
First, that the trial court erred in overruling its motion to quash the summons, service and return of service 'since the evidence established purported service upon defendant, a foreign corporation, by attempted service on an individual and noncompliance with Section 506.150(3) RSMo'; and Second, that the trial court erred in overruling defendant's motion to set aside the default judgment or to grant it a new trial since the evidence established that defendant 'had meritorious defenses, excuse or justification for the default with no prejudice to plaintiff' and that the motions of defendant were timely. The resolution of these points requires a somewhat detailed summary of the facts revealed by this record.
The plaintiff-respondent was arrested on May 23, 1972 on the premises of 'Cook's Discount Department Store' at 4820 North Oak Trafficway, Kansas City, Clay County, Missouri, by one Delores Morriss, a Security Officer at this store. He was detained at the store, then taken to Kansas City, Missouri police headquarters and charged on complaint of Delores Morriss with stealing under Section 26.50, Code of General Ordinances of Kansas City, which ordinance provides for a maximum fine of $500.00 or six months imprisonment. He was booked, mugged, fingerprinted and placed in a 'hold tank' with other prisoners where he was held for several hours until his cash bond could be posted. Subsequently on May 31, 1972, he was tried in the municipal court where Security Officer Morriss testified. He was found not guilty and thereupon discharged.
The complaint filed by Security Officer Morriss charged him with stealing a hose shut-off valve priced at seventy-two cents. The record showed that the plaintiff was a cement contractor employing at times as many as fifteen workmen, and that his business did a yearly gross in excess of $100,000.00. He had no previous record, except for a traffic violation. No valid purpose would be here served to relate the details of the incidents at the store leading to his arrest, except to say that at the default hearing, plaintiff presented strong and convincing evidence both as to the cause of action for arrest and false imprisonment and as to the damages resulting therefrom. At the conclusion of the default hearing, the trial court entered a judgment against the defendant in the amount of $50,000.00 actual and $50,000.00 punitive damages.
Following plaintiff's acquittal in the municipal court, his suit for damages was filed in the Circuit Court of Clay County, Missouri on June 29, 1972 and on that same day the summons was issued for service on 'Cook United, Inc. d/b/a Cook's Discount Department Store, 4820 North Oak Trafficway, Kansas City, Missouri 64118' with the accompanying direction 'SERVE: STORE MANAGER'. The sheriff's return shows that a copy of the petition and summons was served by a deputy sheriff on June 30, 1972 upon 'Operation Manager, Sam Wray'. The legal validity of this summons and return thereto will be hereinafter discussed as the same relate to the first point raised by the defendant Cook United, Inc.
Preliminary to this, however, consideration must be directed to the record evidence with respect to the operation of Cook United, Inc. and of the 'Cook's Discount Department Store' on North Oak Trafficway where the arrest occurred. There is no dispute in the record that Cook United, Inc. is an Ohio corporation with its principal business office in the area of Cleveland, Ohio, and that the records of the Secretary of State of Missouri disclose that it has never been licensed to do business nor is it registered under the Fictitious Name Act in Missouri. It is the position of Cook United, Inc. that the 'Cook's Discount Department Store' was in fact owned and operated by The Ontario Store of St. Louis, Inc., another Ohio corporation (hereinafter referred to as 'Ontario'), which was licensed to do business in Missouri at the times involved, with a duly appointed service agent in St. Louis, Missouri. No hard proof of this fact was brought forward at the evidentiary hearing on the post judgment motions, other than the affidavit of trial counsel for Cook United, Inc.
It is not a prerequisite for valid service upon a foreign corporation that it be licensed to do business in Missouri, but it is sufficient if it is in fact doing business in this state and is subject to a type of service on corporations as provided by Missouri statutes. Wooster v. Trimont Mfg. Co., 356 Mo. 682, 203 S.W.2d 411, 412(2, 3) (1947); Morrow v. Caloric Appliance Corporation, 372 S.W.2d 41, 43(1, 2) (Mo. banc 1963); International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
Focus must be directed to the operation of the 'Cook's Discount Department Store' on North Oak Trafficway. This was a large free-standing department store which in the judgment of a witness involved in that type of development and operation did a gross business of around two million dollars a year in retail sales. Cook United, Inc. was one of the larger national discount operations. The term 'free-standing' is a trade term which means an operation of retail sales in one building divided into various departments and open to the general public.
At the evidentiary hearing on the motions, Cook United, Inc. introduced six documents of conveyance which, although counsel has failed to file the exhibits in this court as required by Rule 81.15, V.A.M.R., apparently show that the title to the real estate upon which this store was constructed was at one time, at least, held by Ontario. It was admitted that Ontario was a subsidiary of Cook United, Inc. Also, it was admitted that the Kansas City, Missouri Occupation License No. 567650 for 1972 was in the name of Ontario. The Clay County Merchants license was applied for in the name of 'Cook's Department Store' and the bond in connection therewith shows Ontario as both the principal and surety. The fee for this latter license was, however, paid by Cook United, Inc. and forwarded to the Clay County Collector by Cook United, Inc. from Ohio. Both this Clay County license and the Kansas City Fire Department permit were issued in the name of 'Cook's', 4820 N. Oak Twfy., Kansas City, Missouri. These are the only areas in this record that show any nexus whatsoever between Ontario and the operation of the retail store on North Oak Trafficway.
On the other hand, the record shows that newspaper advertisements were run promoting retail sales at that store which were headed:
'COOKS
Discount Department Store A Division of Cook United, Inc.'
At the evidentiary hearing on the motions, one Helen Loftis testified under the compulsion of a subpoena duces tecum. She stated that she was employed by Cook United, Inc. at Store 779 located at 4820 North Oak Trafficway, as office manager; that she had been employed by Cook United, Inc. for five years in March, 1972; that she had formerly worked for Cook United, Inc. in Muskogee, Oklahoma, and had been transferred to Kansas City in October, 1971; and that the main office of Cook United, Inc. was in Maple Heights, Ohio (apparently in the Cleveland area).
The testimony of Loftis further established the following undisputed facts:
The application form used for persons who applied for jobs at the store (Plaintiff's Exhibit K--2) is headed 'Cook United, Inc.' and the form which is sent with the time card to the home office when a person is hired (Plaintiff's Exhibit K--1) is also headed 'Cook United, Inc.'
The payroll checks for all employees at the store (of which an example is Plaintiff's Exhibit J) are drawn on check forms of 'Cook United, Inc., Cleveland, Ohio.' Where adjustments in paychecks are required, a form for 'payroll exceptions' (Plaintiff's Exhibit J(1)) is used and are sent to the home office at Cleveland for handling. This form is also headed 'Cook United, Inc.'
When a person is employed, he is given a booklet which is entitled 'Cook's Discount Store Division--Welcome' which outlines the functions of the store and the employee's duties and benefits. This booklet or manual on the first page contains 'A Message from the President--Welcome to Cook's Discount Division', signed by Roy B. Minor, identified in the record as President of Cook United, Inc.
The form used with reference to a leased department in a store (Plaintiff's Exhibit M) is a weekly report of business done by such department and is headed 'Cook United, Inc. Discount Store Division', which is sent to the home office by the local office manager. There is only one such leased department at the North Oak store.
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