State ex rel. Ford Motor Co. v. Dierker

766 S.W.2d 691, 1989 Mo. App. LEXIS 89, 1989 WL 4375
CourtMissouri Court of Appeals
DecidedJanuary 24, 1989
DocketNo. 55399
StatusPublished
Cited by2 cases

This text of 766 S.W.2d 691 (State ex rel. Ford Motor Co. v. Dierker) is published on Counsel Stack Legal Research, covering Missouri Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State ex rel. Ford Motor Co. v. Dierker, 766 S.W.2d 691, 1989 Mo. App. LEXIS 89, 1989 WL 4375 (Mo. Ct. App. 1989).

Opinion

CARL R. GAERTNER, Judge.

Ford Motor Company, a Delaware corporation with its principal place of business in Dearborn, Michigan, seeks our Writ prohibiting Respondent, a Judge of the Circuit Court of the City of St. Louis, from exercising jurisdiction in the underlying action on the grounds of improper venue. We now conclude our preliminary order was improvidently issued and we deny the Writ.

Plaintiffs in the underlying action seek to recover damages for the death of Marie Lampe who was killed when run over by her allegedly defective Ford automobile. Named as defendants in the action are Ford Motor Company, the manufacturer of the automobile, and Sunset Ford 1, a Ford automobile dealer located in St. Louis County. The accident occurred in St. Louis County. Ford maintains a registered agent, C.T. Corp., in the City of St. Louis but, by affidavit, denies that it has an office or agent for the transaction of its usual or customary business in the City. In response to Ford’s motion to dismiss for improper venue, plaintiffs contended that Ford does transact business in the City through two authorized dealers, McMahon Ford and Broadway Ford Truck Sales, Inc. In support of this argument plaintiffs filed copies of the Sales and Service Agreements between Ford, McMahon, and Broadway Ford. The respondent judge concluded that Ford’s control over the dealers, their sales practices, some of their employment practices, and their location, in furtherance of Ford’s own business was tantamount to keeping offices in the City of St. Louis for the transaction of Ford's usual and customary business. The motion to dismiss was denied and this proceeding in prohibition ensued.

Venue refers to the situs or geographical location in which a court of competent jurisdiction may adjudicate an action. Wiglesworth v. Wyrick, 531 S.W.2d 713, 721 (Mo. banc 1976). The concept of venue, handed down from common law antiquity, is now governed by statutes having as their purpose the designation of a convenient, logical and orderly forum for litigation. Sledge v. Town & Country Tire Centers, Inc., 654 S.W.2d 176, 180 (Mo.App.1983). Venue of an action against one or more corporate defendants is established by § 508.040 RSMo.1986 “in the county where the cause of action accrued ...or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.” State ex rel. Webb v. Satz, 561 S.W.2d 113, 115 (Mo. banc 1978).

Since the cause of action in the underlying case did not accrue in the City of St. Louis and since it is undisputed that Sunset Ford has no presence in the City, the issue [693]*693before us is whether the relationship existing between Ford and its authorized dealers in the City constitutes the keeping of an office or agent in the City for the transaction of Ford’s usual and customary business.

Ford strenuously asseverates that it does not. It points to the explicit disavowal contained in the Sales and Service Agreement that “under no circumstances shall DEALER be considered to be an agent of [Ford]." It argues that its usual and customary business is the manufacture of motor vehicles and the sale of motor vehicles to dealers at wholesale. It contends that it is totally insulated from the retail sale of such vehicles by the dealer to a purchaser.

Respondent directs our attention to the pervasive and detailed control over the dealers’ operation retained by Ford under the agreements for the purpose of achieving “mutual objectives of satisfactory sales, services, and profits” and argues that such control creates an agency relationship, in fact, despite the disavowal thereof. Respondent’s acceptance of this argument is reflected by the language of his order: “The court holds, as a matter of law, that an automobile dealership which has a direct and continuous relationship with the automobile manufacturer is an office or agent kept by the manufacturer for the transaction of its usual and customary business.” We disagree.

Respondent’s ruling is overly broad. Conceptually, this ruling contains ramifications which would materially alter the legal relationships between manufacturers and the retailers who accede to the manufacturer’s requirements for the marketing of its products. The exercise by a manufacturer of control over the manner in which its products are marketed in order to maintain its reputation does not necessarily eliminate the independence of the retailer who complies with such controls in order to obtain the privilege of selling the product. In such cases the exercise of control attaches to the product and is limited to the manner in which that product is marketed and to the dealings between the manufacturer and the retailer in relation to the product. The control does not encompass every phase of the retailer’s operation. Indeed, in the instant case, the Sales and Service Agreement expressly reserve to the dealers the right to purchase from others without liability or obligation of any kind to Ford.

Nevertheless, we believe Respondent reached the right result under the circumstances of this case. Respondent places heavy reliance on cases holding that under the venue statute independent insurance agents who place insurance with various insurance companies are agents for the transaction for the usual and customary business of the insurance companies who authorize them to solicit and submit applications for insurance. State ex rel. Wilson v. Sanders, 745 S.W.2d 735, 736 (Mo.App.1987); State ex rel. Cameron Mutual Ins. Co. v. Reeves, 727 S.W.2d 916, 918 (Mo.App.1987). The rationale underlying these decisions is sound and logical. Venue, based upon convenience, differs from jurisdiction, based upon some form of presence within the forum. Therefore, in order to obtain jurisdiction over a corporation service of process is generally required upon an officer or managing or general agent appointed for the purpose of establishing corporate residence, § 506.150.1(3) RSMo. 1986, or a party designated by statute to fulfill that function. e.g. § 375.906.2 RSMo.1986 (Director of Insurance appointed to accept service of process on foreign insurance companies); § 506.210(2) RSMo. 1986 (Secretary of State appointed as agent for service of process under motor vehicle long-arm statute). Convenience is accommodated for purposes of venue wherever a corporation sees fit to keep an office or agent for the transaction of its usual and customary business. For this purpose, the agent is simply “a person authorized by another to act for him, one entrusted with another’s business.” Wilson, 745 S.W.2d at 737; Cameron Mutual, 727 S.W.2d at 918, both quoting from Black’s Law Dictionary, p. 85 (4th ed. 1968). The business of insurance companies is the selling of insurance to the public; therefore, an agent authorized by a company to solicit the sale [694]*694of insurance, even though he is an independent contractor not subject to the control of the insurance company in his manner of operation, is nevertheless an agent kept by the company for the transaction for its usual and customary business.

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Bluebook (online)
766 S.W.2d 691, 1989 Mo. App. LEXIS 89, 1989 WL 4375, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-ford-motor-co-v-dierker-moctapp-1989.