Western Chain Co. v. Brownlee, 48140

• Decision Date: 21 July 1975
• Docket Number: No. 48140,48140
• Citation: 317 So.2d 418
• Parties: WESTERN CHAIN COMPANY v. Mrs. Nell BROWNLEE et al.
• Court: Mississippi Supreme Court

Page 418

317 So.2d 418

WESTERN CHAIN COMPANY v. Mrs. Nell BROWNLEE et al.

No. 48140.

Supreme Court of Mississippi.

July 21, 1975.

Rehearing Denied Sept. 9, 1975.

Stennett, Wilkinson & Ward, James A. Peden, Jr., Jackson, Robert A. Holstein, Chicago, Ill., for appellant.

Bowling, Coleman & Cothren, Jackson, Douglas M. Magee, Mendenhall, for appellees.

Before RODGERS, ROBERTSON and BROOM, JJ.

ROBERTSON, Justice.

On March 20, 1973, the Circuit Court of Simpson County entered an intelocutory default judgment, and then a final judgment, based on writ of inquiry, for $204,160 against Western Chain Company, a non-resident corporation, and in favor of Mrs. Nell Brownlee, widow of Billy Brownlee, and her four minor children. The March, 1973, term of court ended on March 30, 1973. On August 6, 1973, Western Chain Company filed a motion to set aside and vacate these two judgments.

In its motion to set aside, Western Chain contended that, under the peculiar facts of this case, these was a failure of due process, and that the interlocutory and final judgments offended traditional notions of fair play and substantial justice. After a hearing on the motion, the court took the matter under advisement, and on October 8, 1973, rendered a written opinion overruling the motion. In its opinion, the court found:

'(S)aid briefs on behalf of the parties having been filed and the Court, after having examined the file in its entirety and particularly the matter pertaining to service of process in the manner and for the period of time required by law in such cases and all of the other evidence, is of the opinion and so finds that the Defendant has been afforded a fair and impartial hearing upon its Motion and, in view of the briefs filed and cases cited for and on behalf of the respective parties, the Court is of the opinion that there has been no fraud perpetrated upon the Defendant and that process in this case was served in the manner and for the period of time required by law; that Arthur W. Hill, President of the Defendant Corporation, actually received this process, studied its contents and placed thereon a question mark. The Court further finds that although Mr. Hill had lost a loved one, it was shown in the testimony adduced upon the hearing of this Motion that he has been President of the Defendant Company since its inception and was President of the original Corporation; that he appears to be unusually mentally alert and responsive to and understanding of legal and business terms. . . . (Emphasis added).

'The Court further finds that, . . . process was had in the manner and for the period of time required by law and it now appears that this process was received by the only one who had any authority, duty or obligation to act for and on behalf of Western Chain Company-its President, Arthur W. Hill; that he did read and keep, to the date of the hearing, the process from the Secretary of State.'

We list the chronology of pertinent events:

On January 9, 1973, Mrs. Nell Brownlee, individually and for her four minor children, filed suit against Western Chain Company charging that her husband, 28-year-old Billy Brownlee, died on May 5, 1971, from injuries received on that day when a defectively made chain, manufactured and sold by Western Chain, broke and the front end of a wrecked car fell on him. The new chain had been purchased on April 27, 1971, from a retail hardware store in Magee, Mississippi, and was being used on a Berry Motor Company wrecker to hoist the front end of a wrecked automobile. After the front end of the car had been raised, Brownlee went underneath the car to cherk the transmission to see if the car could be moved without damage to the transmission. The chain broke, the car fell upon him, and he was fatally injured.

The suit was brought under Mississippi Code Annotated section 13-3-57 (1972) which provides in part:

'Any nonresident person, firm, general or limited partnership, or any foreign or other corporation not qualified under the constitution and laws of this state as to doing business herein, 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 of this state, or who shall do any business or perform any character of work or service in this state, shall by such act or acts be deemed to be doing business in Mississippi. Such act or acts shall be deemed equivalent to the appointment by such nonresident of the secretary of state of the State of Mississippi, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident upon whom all lawful process may be served 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, by any such nonresident or his, their, or its agent, servant or employee. (Emphasis added).

'Service of any process herein provided for to be made upon the secretary of state shall be made in like manner and procedure, inclusive of notice of service, and with the same force and effect, as is provided by law for service on nonresident motorist defendants under section 13-3-63, . . ..'

That part of Mississippi Code Annotated section 13-3-63 (1972), having to do with the service of process provides:

'Service of such process or summons shall be made by the sheriff of Hinds County, upon prepayment of the fees to which he is entitled by law, by serving two copies of the process or summons for each nonresident defendant, with a fee of five dollars ($5.00) for each such defendant on the secretary of state or by leaving two copies of said process or summons with the fee in the office of the secretary of state, and such service shall be service upon said nonresident defendant with the same force and effect as if such nonresident had been personally served with such process or summons within the State of Mississippi. One of the...