Sipes v. American Honda Motor Co.

WASSERSTROM, Chief Judge.

Cheng Shin Rubber Industrial Co., Ltd. of Taiwan, (hereinafter referred to as defendant) appeals from a judgment awarding damages to plaintiff Bodean Sipes for personal injuries and to Nancy Sipes for loss of consortium. Defendant’s sole contention on appeal is that the trial court did not acquire jurisdiction over it by valid service of process. We agree.

Defendant manufactures motorcycle inner tubes which are sold in the United States. In order to market those tubes, it is required by the National Traffic and Motor Vehicle Safety Act (15 U.S.C. § 1381 et seq.) to file with the United States Department of Transportation a designation of an agent to receive service of process. Defendant, through its attorney Alvin G. Greenwald, did file such a designation with the Department which read in part as follows: “Cheng Shin Rubber Industry Co., Ltd. hereby and herewith appoints Cheng Shin Tire U.S.A., Inc. a California corporation as designated agent for service ,in the United States of any judicial or administrative processes, notices, orders, decisions, requirements, by, of and from the secretary of transportation, U.S. Department of Transportation.... Cheng Shin Rubber Industry Co., Ltd.’s principal place of business and mailing address is: 12, Meikong Lane, Huang Tso, Datsuen Changhua, Taiwan, Republic of China ... ,”¹

Upon the filing of their petition against defendant, plaintiffs directed service upon the Secretary of State under Section 351.-633, RSMo 1978, which authorizes such service upon any foreign corporation which commits a tort in Missouri. As part of its direction for service, plaintiffs furnished the following instructions:

“Please forward the summons to the Sheriff of Cole County for service on the Secretary of State pursuant to R.S.Mo 351.633. Copy of the following should be forwarded by registered mail by the Secretary of State to each of the names listed below.

1. Cheng Shin Rubber Industrial Company, Ltd. of Taiwan

2. Cheng Shin Tire, U.S.A., Inc.

P. 0. Box 2133

Culver City, California 90230

3. Alvin G. Greenwald

6300 Wilshire Boulevard, 12th Floor

Los Angeles, California 90048”

Prior to trial defendant made a special appearance to challenge jurisdiction and to quash the issuance and service of summons. That motion was overruled, and defendant thereupon applied to this court for a writ of prohibition. That application for prohibition was denied. State ex rel. Cheng Shin Rubber Industrial Co., Ltd. of Taiwan v. Kimberlin, No. KCD30592. Defendant then filed answer in the trial court, in which it repeated its challenge to the court’s jurisdiction. The trial resulted in a jury verdict and judgment against this defendant, from which this appeal is being prosecuted.

Section 351.633, under which jurisdiction is asserted against defendant, prescribes the manner of service and notification to the defendant foreign corporation as follows:

“2. In the event that any process, notice, or demand is served on the secretary of state, he shall immediately cause a copy thereof to be forwarded by registered mail, return receipt requested, addressed to the secretary of such corporation at its principal office as the same appears in the records of the secretary of state, or if there is no such address on file, then to the corporation at its office as shown in the official registry of the state of its incorporation and such address shall be provided by the plaintiff or his attorney.”

In order for service to be effective, those statutory provisions must be met. Absent such compliance, the court is without power to adjudicate. Ponder v. Aamco Automatic Transmission, Inc., 536 S.W.2d 888 (Mo.App.1976); State ex rel. Craig v. Grimm, 542 S.W.2d 335 (Mo.App.1976); State ex rel. Northwest Ark. Produce v. Gaertner, 573 S.W.2d 391 (Mo.App.1978).

The purported service in this case did not comply with the requirements of Section 351.633-2. Contrary to the requirement that the plaintiff or his attorney provide to the secretary of state the address of the defendant corporation “at its office as shown in the official registry of the state of its incorporation,” plaintiffs here gave no home office address for the defendant whatsoever. This failure to comply with the statutory requirement is fatal, even if in fact defendant did receive actual notice of the pendency of this suit. State ex rel. Pressner v. Scott, 387 S.W.2d 539 (Mo. banc 1965); State ex rel. Northwest Ark. Produce v. Gaertner, supra; Ponder v. Aamco Automatic Transmission, Inc., supra.

Plaintiffs say, however, that the service made here was good under subpara-graph 3 of Section 351.633, which provides: “3. Nothing herein contained shall limit or affect the right to serve any process, notice, or demand required or permitted by law to be served upon a foreign corporation in any other manner now or hereafter permitted by law.” Plaintiffs argue that another manner permitted by law was provided by the federal statute 15 U.S.C. Sec. 1399(e) which states:

“(e) It shall be the duty of every manufacturer offering a motor vehicle or item of motor vehicle equipment for importation into the United States to designate in writing an agent upon whom service of all administrative and judicial processes, notices, orders, decisions and requirements may be made for and on behalf of said manufacturer, and to file such designation with the Secretary, which designation may from time to time be changed by like writing, similarly filed. Service of all administrative and judicial processes, notices, orders, decisions and requirements may be made upon said manufacturer by service upon such designated agent at his office or usual place of residence with like effect as if made personally upon said manufacturer, and in default of such designation of such agent, service of process, notice, order, requirement or decision in any proceeding before the Secretary or in any judicial proceeding for enforcement of this subchapter or any standards prescribed pursuant to this subchapter may be made by posting such process, notice, order, requirement or decision in the Office of the Secretary.”

Plaintiffs particularly rely on Bollard v. Volkswagenwerke, A. G., 313 F.Supp. 126 (W.D.Mo.1970), in which a federal district court stated that service for purposes of a common law tort action in Missouri could be obtained upon the agent designated pursuant to the foregoing federal statute.

The vitality of that ruling in Bollard is somewhat diminished by the fact that the plaintiff in Bollard had obtained independent and undoubtedly good service against Volkswagenwerke by having the Secretary of State mail a copy of summons to the defendant corporation’s office in Germany. Regardless of that, other courts have more recently disagreed with and have rejected the Bollard view. Thus in an unreported decision, Rubino v. Celeste Motors, Inc., No. 72-CV-350 (D.C.N.Y.1974), Bollard was considered but not followed upon the following reasoning:

“Based on the precedent established by Bollard v. Volkswagenwerke, A. G., 313

F.Supp. 126 (W.D.Mo.1970), I held in my previous decision that VWAG, by appointing VWoA as its agent pursuant to Sec. 1399(e), had established an agency relationship with VWoA and, further, that such relationship itself rendered VWAG amenable to suit whenever VWoA could be found within the state. Upon reconsideration and after a careful study of the Safety Act and its legislative history, I am convinced that my previous reasoning was in error and that the appointment of an agent under Sec. 1399(e) is solely for the purposes of expediting enforcement of the Safety Act and is not a general agency appointment which, in and of itself, would make the acts of VWoA attributable to VWAG. See 1966-2 U.S.Code Cong. & Adm.News, 89th Cong., 2d Sess., p. 2736; 49 C.F.R. Sec. 551.45 (1973). Although such a holding is not consistent with the Bollard case, it is my judgment, after rereading that case, that consideration of the Safety Act was not essential to the outcome of the case since jurisdiction was there sustainable under the Missouri long-arm statutes. Bollard v. Volkswagenwerke, A. G., supra at 128.”

Bollard was again considered and rejected in a particularly well considered opinion, Fields v. Peyer, 75 Wis.2d 644, 250 N.W.2d 311 (1977). With respect to this point, the court held as follows:

“We conclude that neither the Secretary of State nor Volkswagen of America was Audi’s agent for service of process. While Volkswagen of America was Audi’s agent for the service of process, under the terms of the National Traffic and Motor Vehicle Safety Act, the scope of that agency was only in respect to process enforcing that act and did not give the agent authority to admit service in common-law actions commenced in state courts ....

“The record shows that, ... Audi notified the administrator of the National Highway Traffic Safety Administration that in compliance with the statute:

“ ‘AUDI ... hereby designates Volkswagen of America, Inc., 818 Sylvan Avenue, Englewood Cliffs, N.J. 07632, as its agent upon whom service of all administrative and judicial processes, notices, orders, decisions and requirements under and in connection with the said act may be made for and on its behalf.’

“Audi points out that its designation of an agent limited his authority to admit service of process only on documents that are relevant to the National Traffic and Motor Vehicle Safety Act. It is apparent from the fact of the agency authorization that the scope of powers of Volkswagen of America is so limited.

“Additionally, 49 CFR 551.45(c), promulgated pursuant to the National Traffic and Motor Vehicle Safety Act, provides:

“ ‘Service of any process, notice, order, requirement, or decision specified in sec. 110(e) of the National Traffic and Motor Vehicle Safety Act of 1966 may be made by registered or certified mail addressed to the agent .... ’

“These federal regulations are rules which have the effect of implementing and interpreting the congressional statutes. As such, they represent an administrative construction of the statute which must be given deference in construction of the statute itself. The regulation makes apparent what is implicit in the statute-that the power of the agent for process appointed under the act is limited by the scope of the act itself.

“We, accordingly, conclude that Volkswagen of America was not an agent for the general service of process of common-law actions emanating out of state courts; and, accordingly, the service attempted by both Peyer and Walker was insufficient to confer jurisdiction on the circuit court for Walworth county.”

It is to be noted that the Fields opinion relies in part upon the wording of the agency designation filed by the defendant in that case with the federal department. The designation filed by Cheng Shin with the federal department was equally as limited and restricted. The decisions in Rubino and Fields are persuasive and should be followed. See also, Volkswagenwerk, Etc. v. McCurdy, 340 So.2d 544 (Fla.App.1976).

The judgment in this case should be and is hereby reversed for lack of personal jurisdiction over the defendant.

SHANGLER, J., concurs.

MANFORD, J., dissents in separate opinion filed.

1 . The record on appeal in this case contains a document from the United States Secretary of Transportation certifying “that the annexed is a true copy of the designation” referred to above. For some reason, probably through inadvertence, the designation itself is not attached to that certificate. However, the same document appears as an exhibit in the file in this court of State ex rel. Cheng Shin Rubber Industrial Co., Ltd. of Taiwan v. Kimberlin, No. KCD30592, and the designation above quoted does appear as an attachment to the exhibit in that file. We are entitled to and have taken judicial notice of the file in KCD30592. Knorp v. Thompson, 352 Mo. 44, 175 S.W.2d 889, 894 (Mo.1943); Hardin v. Hardin, 512 S.W.2d 851, 854 (Mo.App.1974); Mince v. Mince, 481 S.W.2d 610, 614 (Mo.App.1972); State v. Hawkins, 582 S.W.2d 333, 334 (Mo.App.1979); Hines v. Sweet, 567 S.W.2d 435, 437 (Mo.App.1978).