Wooster v. Trimont Mfg. Co.

• Decision Date: 09 June 1947
• Docket Number: No. 40235.,40235.
• Parties: F.G. WOOSTER and HAROLD M. JOHNSON, d/b/a WOOSTER & JOHNSON, a Partnership, Appellants, v. TRIMONT MANUFACTURING COMPANY, a Corporation.
• Court: Missouri Supreme Court

203 S.W.2d 411

F.G. WOOSTER and HAROLD M. JOHNSON, d/b/a WOOSTER & JOHNSON, a Partnership, Appellants, v. TRIMONT MANUFACTURING COMPANY, a Corporation.

No. 40235.

Supreme Court of Missouri.

Division One, June 9, 1947.

Rehearing Denied, July 14, 1947.

Appeal from Circuit Court of City of St. Louis. — Hon. Edward M. Ruddy, Judge.

REVERSED AND REMANDED.

Francis R. Stout and Richard M. Stout for appellants.

(1) The continuous course of interstate business over a period of 25 years and the admitted acts of defendant in Missouri were sufficient to show presence of defendant corporation in the State of Missouri so as to make it amenable to suit in the courts of Missouri on an obligation arising out of the business transacted in Missouri. International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S. Ct. 944, 58 L. Ed. 1479; International Shoe Co. v. Washington, 66 S. Ct. 154; Hutchinson v. Chase & Gilbert, 45 Fed. (2d) 139. (2) The summons was properly served under Sec. 880, R.S. 1939, which provides the mode of service. Vilter Mfg. Co. v. Rolaff, 110 Fed. (2d) 419; Griffin v. Seaboard Airline R. Co., 28 Fed. (2d) 998; Tauza v. Susquehanna Coal Co., 220 N.Y. 259, 115 N.E. 915; International Shoe Co. v. Washington, 66 S. Ct. 154; International Shoe Co. v. State, 154 Pac. (2d) 801; Sec. 880, R.S. 1939. (3) The trial court had no right to dismiss the suit merely because it thought the summons was not properly served. All it could have done was to quash the service of the summons, since there is no question in the record of the sufficiency of plaintiffs' petition. Sec. 61, Code of Civil Procedure.

Burnett, Stern & Liberman and Robert Burnett for respondent.

(1) The action of the trial court in dismissing the suit was proper; otherwise this appeal should be dismissed. Zelnicker Supply Co. v. Mississippi Cotton Oil Co., 103 Mo. App. 94, 77 S.W. 321; Nathan v. Planters Cotton Oil Co., 187 Mo. App. 560, 174 S.W. 126; Secs. 880, 1184, R.S. 1939. (2) Defendant corporation neither had an office nor was doing business in the State of Missouri and, hence, the Circuit Court of the City of St. Louis had no personal jurisdiction over it. State ex rel. Ferrocarriles Nacionales De Mexico v. Rutledge, 56 S.W. (2d) 28, 331 Mo. 1015; Detmer, Bruner & Mason v. N.Y. Central Railroad Co., 80 S.W. (2d) 222, 229 Mo. App. 702; Vilter Mfg. Co. v. Rolaff, 110 Fed. (2d) 491; International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S. Ct. 944, 58 L. Ed. 1479; International Shoe Co. v. Washington, 66 S. Ct. 154; Davega v. Lincoln Furn. Mfg. Co., 29 Fed. (2d) 164; People's Tobacco Co., Ltd., v. American Tobacco Co., 246 U.S. 79; Deutsch v. Hoge, 146 Fed. (2d) 201; Roark v. American Distilling Co., 97 Fed. (2d) 297; U.S. Judicial Code Ann., Title 28, Sec. 237; 25 C.J., p. 934, sec. 286.

BRADLEY, C.

[1] Action to recover $7200 commission due plaintiffs for selling defendant's products in Missouri and elsewhere. Defendant is a Massachusetts corporation and not licensed to do business in Missouri, but its president was served with process in St. Louis, under Sec. 880, R.S. 1939, Mo. R.S.A., Sec. 880. Defendant contended that the service was not sufficient to authorize the court to render a personal judgment against it and, limiting appearance, filed motion (in effect to quash service) to dismiss the cause. See Sec. 61, Laws 1943, p. 374, Mo. R.S.A., 847.61. The motion was sustained and plaintiffs appealed to the St. Louis Court of Appeals. That court transferred the cause to the supreme court on the theory that due process is inherent on the question of the the validity of the service upon defendant. See Wooster et al. v. Trimont Mfg. Co. (Mo. App.), 197 S.W. (2d) 710. We think a constitutional question on due process is involved, and that jurisdiction of the appeal is in the supreme court. Sec. 3, Art. V, Const.; Dye v. School Dist. No. 32, 355 Mo. 231, 195 S.W. (2d) 874.

[2] Defendant manufactures pipe tools and especially pipe wrenches; sells only to the wholesale trade. It has only one factory and that is at Roxbury, a suburb of Boston, Massachusetts. Plaintiffs are manufacturers' agents and have an office in the Chemical Building in St. Louis, where they have had their office through the years of their representation of defendant. Plaintiffs (first Mr. Wooster alone) have, since 1919, represented defendant in Missouri and what is termed the Missouri area (12 other states), and have sold (taken orders for) defendant's products on a commission basis. Plaintiffs also represent other manufacturers likewise selling to the wholesale trade in Missouri and the Missouri area. Contracts between plaintiffs and defendant have been renewed at intervals, and the last one was executed March 26, 1943, and terminated by defendant December 31, 1943. Plaintiffs allege that their sales of defendant's products in Missouri and the Missouri area between April 1st and December 31, 1943, were $500,000, and that by the contract they were entitled to a commission of 7 percent on the first $100,000, and 2 percent on the remaining $400,000, or a total of $15,000. And it is alleged that defendants have paid on the commission the sum of $7800, leaving a balance of $7200.

In an endeavor to show that defendant was doing business in Missouri to such an extent as to make it amenable to the service of process, plaintiffs showed that: (1) Defendant furnished plaintiffs catalogs, discount sheets, samples, sales data, information on the products of competitors; (2) employed, in a recent year, and paid two missionary men who were not permitted to take orders, but who endeavored to sell the Missouri trade, especially large users of pipe wrenches, on defendant's products; (3) by direction of defendant, shortly after the first contract in 1919, plaintiffs placed defendant's corporate name on their (plaintiffs') office door, and in the St. Louis telephone directory and in the St. Louis postoffice directory; (4) plaintiffs, with defendant's knowledge, used a letter head bearing defendant's corporate name, and placed defendant's corporate name in the Chemical Building directory; (5) many business letters throughout plaintiffs' territory (the 13 states, including Missouri) were addressed to defendant at the Chemical Building, St. Louis; (6) defendant held a meeting of salesmen in St. Louis; (7) plaintiffs adjusted in Missouri complaints for defendant and collected accounts in Missouri; (8) many customers in Missouri, and elsewhere in the Missouri area, in ordering defendant's products, sent their orders addressed to defendant, Chemical Building, St. Louis; (9) for the three years, 1941-1943, defendant received from the activities of plaintiffs 1420 orders from Missouri customers, totaling in amount, $114,626.80 (it is not shown how many of these orders were directed to defendant at St. Louis).

The orders from Missouri for defendant's products were interstate business in character, but that alone does not render defendant immune from process in Missouri. International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S. Ct. 944, 58 L. Ed. 1479. In that case the corporation (IHC) was not authorized to do business in Kentucky and claimed that it was not doing business in Kentucky in the sense to make it amenable to process. The Kentucky courts held that the corporation was amenable to the process of the State (147 Ky. 655) and that ruling was affirmed by the supreme court of the United States. The court said (234 U.S. l.c. 585):

"Here was a continuous course of business in the solicitation of orders which were sent to another state and in response to which the machines of the harvester company were delivered within the State of Kentucky. This was a course of business, not a single transaction. The agents not only solicited such orders in Kentucky, but might there receive payment in money, checks or drafts. They might take notes of customers, which notes were made payable, and doubtless were collected, at any bank in Kentucky. This course of conduct of authorized agents within the state in our judgment constituted a doing of business there in such wise that the harvester company might be fairly said to have been there, doing business, and amenable to the process of the courts of the state."

The ruling in the International Harvester Company case and prior rulings of the kind have proceeded under the doctrine of what is termed presence in the state, but the recent ruling in International Shoe Co. v. State of Washington et al., 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 110, has been considered a departure from such doctrine and a move...