Richardson v. Truck Equipment

497 So. 2d 1126, 1986 Ala. LEXIS 4277
CourtSupreme Court of Alabama
DecidedNovember 7, 1986
Docket85-1319
StatusPublished
Cited by1 cases

This text of 497 So. 2d 1126 (Richardson v. Truck Equipment) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Richardson v. Truck Equipment, 497 So. 2d 1126, 1986 Ala. LEXIS 4277 (Ala. 1986).

Opinion

JONES, Justice.

This is a petition for a writ of mandamus directed to Judge Dale Segrest of the Circuit Court of Macon County. We deny the writ.

Defendant Peabody Gabon Company (Peabody), a manufacturer of refuse collection equipment, is a Delaware corporation qualified to do business in Alabama. Peabody sells its equipment through distributors, such as Defendant Truck Equipment, the exclusively authorized Peabody dealer in Alabama.

Willie G. Walker, a sanitation worker employed by the City of Tuskegee, Alabama, was killed when a garbage truck backed over him. The truck was equipped with a Peabody “E Z Pack” rear-loading compaction unit; the unit, however, did not have a “back-up alarm.” Decedent’s ad-ministratrix, Mary Richardson, brought a wrongful death action in the Macon County Circuit Court against several defendants, including the manufacturer of the “E Z Pack” unit (Peabody) and the distributor of the unit (Truck Equipment).

Peabody filed a motion to dismiss or, in the alternative, to transfer the case to either Jefferson or Montgomery County, claiming that venue in Macon County was improper as to Peabody. The trial court denied both the motion to dismiss and the motion for change of venue. In its petition, Peabody asks that this Court “direct the Honorable Dale Segrest to enter an order dismissing the ..-. case for improper venue or transferring to an appropriate county.” 1

The basis of Peabody’s argument, in its own words, is that “Peabody was not doing business in Macon County at the time this suit was filed and the imposition of venue in Macon County is improper.” This mandamus proceeding, says Peabody, “concerns the application of the ‘doing business’ language of [Alabama Constitution, Article 12, Section 2322] and [Code 1975, § 6-3-73] as [it applies] to a situation in which a manufacturer maintains an ongoing relationship with an independent corporation that acts as a distributor of the product, and in which the manufacturer’s only connection with the State of Alabama is its relationship with the distributor.”

We must determine, then, whether the trial court had “sufficient facts before it to ascertain proper venue, i.e., [whether the defendant was] doing business in the county,” Ex parte Harrington Manufacturing Co., 414 So.2d 74, 75 (Ala.1982), and whether, in denying the relief sought by Peabody, the trial court abused its discretion or exercised that discretion in an arbitrary or capricious manner, Ex parte Wilson, 408 So.2d 94 (Ala.1981).

The pleadings and depositions filed with the trial court reveal the following facts: Except for a few isolated cases, Peabody does not have a sales force that calls on potential customers; rather, Peabody markets its products through distributors such as Truck Equipment. Peabody sells [1128]*1128its products (refuse collection equipment) on a bid basis. Peabody works with the distributors in reviewing bid specifications and in preparing final bids. The expense and size of the Peabody products makes it unfeasible for a Peabody distributor such as Truck Equipment to maintain a product inventory; therefore, a distributor orders a specific piece of equipment from Peabody for a particular sale. Peabody does, however, require its distributors to maintain a minimum inventory of Peabody parts, to be trained to perform repairs on Peabody equipment, and to engage actively in the sale and distribution of Peabody products within a designated area.

Truck Equipment, Peabody’s authorized distributor in Alabama, has its principal place of business in Birmingham. When Peabody representatives come to Alabama, it is for the purpose of meeting with Truck Equipment representatives in Birmingham. Peabody representatives have never been to Macon County, and Peabody does not conduct advertising in Macon County; however, while Truck Equipment does not maintain advertising in Macon County, Truck Equipment representatives make regular sales visits and telephone calls to customers in that county for the purpose of selling the Peabody line of products. The “E Z Pack” unit was sold to the City of Tuskegee by Truck Equipment on the authorization of Peabody, and Truck Equipment made a sales call to the City of Tuskegee within 60 days of the date this suit was filed.

We find that these facts provided a sufficient basis for the trial court’s consideration of the question of venue in this action. We now turn to the issue of whether, in making its determination as to venue, the trial court abused its discretion or exercised that discretion in an arbitrary or capricious manner.

“The proper venue for an action against a foreign corporation is controlled by Code 1975, § 6-3-7, which provides that ‘A foreign corporation may be sued in any county in which it does business by agent.’ This section augments, and is consistent with, Ala. Const. 1901, Art. XII, § 232, which provides that a foreign corporation ‘may be sued in any county where it does business, by service of process upon an agent anywhere in the State.’ ” Ex parte Snoddy, 487 So.2d 860, 861 (Ala.1986).

Peabody argues that, because of the language of the Code and the Constitution, venue in Macon County is not proper as.to Peabody. In its brief to this Court, Peabody claims that “this case presents an issue of first impression: ‘[W]hether the acts of an independent Alabama Corporation can be attributed to a foreign corporation ... for the purpose of determining venue.’ Stating its argument another way, Peabody poses this question: “Is the mere delivery of a manufactured product to a county seven years prior to the filing of a lawsuit sufficient to subject a foreign corporation ... to venue in the county where the product was delivered, if that foreign corporation had no other contacts or business dealings in the ... county?”

Peabody’s claim that it is not “doing business” in Macon County centers on two contentions: 1) that Peabody’s lack of control over its Alabama distributor, Truck Equipment, negates any finding of “agency” on the part of Truck Equipment; and 2) that Peabody’s lack of contacts with Macon County defeats any finding of “doing business” in Macon County.

The term “agency” is frequently used to describe an arrangement which does not rise to the level of a principal/agent relationship and which is not governed by the law of respondeat superior. See Black’s Law Dictionary, (rev. 4th ed. 1968); and 3 Am.Jur.2d Agency § 2, p. 510. Indeed, that term “is also often used in statutes or constitutional provisions in a more restricted sense than that commonly given it, and, where so used, its significance must generally be determined by a study of the context.” 2A C.J.S. Agency § 4, p. 557 (1972).

Whether an entity is an agent of a foreign corporation, as contemplated by the Constitution and the statute, is not tested by the standard for determining agency in [1129]*1129the context of a principal/agent relationship with the attendant burden of the doctrine of respondeat superior (e.g., civil and criminal liability imputed to the principal for the wrongful acts of the agent committed within the scope of the agent’s employment). It is tested in the context of the language of the Constitution and the statute.

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Related

Ex Parte Peabody Galion Co.
497 So. 2d 1126 (Supreme Court of Alabama, 1986)

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Bluebook (online)
497 So. 2d 1126, 1986 Ala. LEXIS 4277, Counsel Stack Legal Research, https://law.counselstack.com/opinion/richardson-v-truck-equipment-ala-1986.