Western Gas Appliances, Inc. v. Servel, Inc.

257 P.2d 950, 123 Utah 229
CourtUtah Supreme Court
DecidedJune 16, 1953
Docket7958
StatusPublished
Cited by7 cases

This text of 257 P.2d 950 (Western Gas Appliances, Inc. v. Servel, Inc.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Western Gas Appliances, Inc. v. Servel, Inc., 257 P.2d 950, 123 Utah 229 (Utah 1953).

Opinions

CROCKETT, Justice.

We are here confronted with the question of whether the defendant corporation was doing business in this state so that service of summons upon its regional service manager brought it within the jurisdiction of our courts.

Defendant, a Delaware corporation, has its principal place of business in Indiana, where it manufactures gas and electric home appliances which are distributed nationally through wholesale distributors in the various states. Plaintiff, Western Gas, Inc., was for several years one of such distributors. On June 10, 1951, Servel terminated its contract and gave Zion’s Cooperative Mercantile Institution of Salt Lake City the franchise. As a result of alleged [232]*232wrongs in connection therewith, plaintiff commenced this action.

It is not disputed that Servel maintains no place of business of any kind in Utah, has no office, telephone nor real nor personal property, and has no employee located here. Because of this, plaintiff attempted service of summons on defendant by serving a Mr. Frank Reid, regional service manager for Servel, who was temporarily within the state of Utah staying at a hotel.

The trial court granted defendant’s motion to dismiss for lack of jurisdiction. Plaintiff appeals.

The part of rule 4(e) (4) U.R.C.P. dealing with service of summons on corporations and under which plaintiff claims to have acquired jurisdiction of the defendant is:

“If no * * * officer or agent [of the corporation] can be found in the state, and the defendant * * * does business in this state, then upon the person doing such business * *

There is implicit in the trial court’s order granting the motion to dismiss a finding that defendant was not doing business in Utah although he made no express findings of fact. As this court stated in Mower v. McCarthy :1

“In reviewing a case * * * where issues of fact are involved and there are no findings of fact, we do not review the facts but assume that the trier of the facts found them in accord with its decision, and we affirm the decision if from the evidence it would be reasonable to find facts to support it.”

Also to be remembered is that plaintiff has the burden of affirmatively showing that defendant was doing business within the state.2

Under Servel’s contract with its distributor title to all shipments passed from Servel in Indiana. The contract [233]*233required the distributor itself to handle all the business of marketing Servel products in Utah, to maintain agreements for distribution to local dealers (retailers), to promote and stimulate sales activities, maintain an installation and service department “for the purpose of supervising the service activities of dealers * * * and training dealers’ service men” and to “accept responsibility for servicing * * * all Servel products sold by * * * [such] dealers” and to maintain an adequate stock of parts for the above purposes and to fufill the warranty on Servel products. The only deviation from this method shown was that one shipment of water heaters, while still the property of Servel, was sent to plaintiff to replace defective heaters, in accordance with terms of a Servel warranty; there was also an isolated transaction of the installation of one air-conditioning and heating system by Servel in the year 1948.

Plaintiff cites and relies on Industrial Comm. v. Kemmerer Coal Co.3 and the Wabash Railroad Co. v. District Court of Third Judicial Dist.4 wherein we approved the doctrine that a regular course of solicitation of business coupled with other business activities would constitute “doing business” in the state. Rut what plaintiff here claims was “solicitation” amounted only to infrequent sales talk about the Company’s products generally, designed to influence people to buy Servel equipment from dealers. The evidence is that regional managers for sales and for service, each visited the distributor about every 90 days for the purpose of general promotion and supervision of the business; the sales manager talked with architects, contractors and prospective customers in the interest of stimulating sales, but not for the purpose of consummating particular sales; the service manager inspected defective parts to see if they came within the terms of the Servel warranty, and on several occasions [234]*234went to homes to give advice to service men (not Servel employees) working on Servel appliances, but he maintains that he never personally serviced such appliances. Certain of defendant’s employees also participated in periodic clinics in which local service men were instructed in servicing the products and also took part in annual conferences arranged for by the distributor where retailers and their salesmen were shown new models of Servel wares and given instructions and “pep talks” about the products and sales techniques.

There is no evidence that the defendants’ employees either solicited, or made, any direct sales of goods in Utah, or sold any destined for Utah except to the wholesale distributors. The statement of Seward Abbott, regional manager for Servel, is:

“No * * * representative of Servel has business relations with any dealers [retailers] or members of the public in Utah.”

Plaintiff seeks support in the statement of its president, Harold A. Fresne, that a former regional service manager of the defendant

“Blair Hughes * * * [while] an employee of Servel * * * has serviced defendant’s products in the State of Utah on many and numerous occasions.”

This matter would not be controlling for three reasons: (1) The court was not obliged to so find because of the evidence that the regional service manager had no such duty and does not perform such services; (2) Mr. Hughes was a “former” regional service man and his activities did not relate to the time in question; (3) there is no indication that Hughes or Servel made any charge or received any compensation for such services, and (4) it is extremely doubtful whether servicing equipment, even if by Servel, would amount to doing business within the state. However, as is apparent from the circumstances herein delineated, [235]*235it is unnecessary for this decision to rest upon any such narrow point.

No authority has been cited which would support a conclusion that the activities of defendant herein above enumerated, are sufficient to render a foreign corporation amenable to process. It is indisputable that the mere presence here of an officer of a foreign corporation will not subject it to suit,5 nor will the sale of goods at a foreign factory to an independant distributor located within this state6; neither is the aiding of the distributor in his duties of promoting sales and servicing activities of independent dealers [retailers] through instructing or training them and their employees;7 nor the giving of a warranty and the shipping to an independent dealer the parts and units to meet its terms.

It is also well settled that an isolated transaction such as the installation of the one air-conditioning unit and heating system would not create the status of doing business here.8

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Western Gas Appliances, Inc. v. Servel, Inc.
257 P.2d 950 (Utah Supreme Court, 1953)

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Bluebook (online)
257 P.2d 950, 123 Utah 229, Counsel Stack Legal Research, https://law.counselstack.com/opinion/western-gas-appliances-inc-v-servel-inc-utah-1953.