author: JOHN E. PARRISH, Judge.

text:
    STATE of Missouri, ex rel. AUBURN FORD, INC. (formerly known as Heritage Ford, Inc.), Relator, v. Honorable Henry W. WESTBROOKE, Jr., Judge of the Circuit Court of Greene County, Mo., Respondent.
    No. 23054.
    Missouri Court of Appeals, Southern District, Division One.
    May 19, 2000.

      Virginia L. Fry, Charity R. Elmer, Blackwell, Sanders, Peper, Martin, LLP, Springfield, for relator.
    James A. Endicott, Venus V. Harry, William H. McDonald & Associates, P.C., Springfield, for respondent.
   JOHN E. PARRISH, Judge.

This is an original proceeding in prohibition. Auburn Ford, Inc., formerly Heritage Ford, Inc., (relator) seeks to prohibit the respondent judge from taking any action against relator in an underlying tort action other than dismissing the petition. The petition includes ten counts. One is against relator alone. Two are against relator and Ford Motor Company. The remaining counts are against Ford Motor Company. A preliminary order in prohibition was entered. That order is made absolute.

The Underlying Action

The underlying action was filed in the Circuit Court of Greene County, Missouri, as case number 198CC1911. Its plaintiffs are Hal Eltiste, Frances Eltiste, Rebecca Bremer and Leah Eltiste (by her next friend Frances Eltiste). The named defendants are Ford Motor Company and relator (identified in the petition as “Heritage Ford, Inc.”). The plaintiffs are all Nebraska residents. Relator is a Nebraska corporation. Its principal and only office is located at Auburn, Nebraska. Relator is not registered to do business in Missouri.

The injuries for which recovery is sought in the underlying tort action arose from a Nebraska automobile accident. The vehicle in which plaintiffs were traveling at the time of the accident was a 1991 Ford Aerostar van. The petition alleges that the accident occurred on or about May 22,1994; that the driver of the van at the time of the accident was Hal Eltiste. It states that Ford Motor Company manufactured the vehicle in Missouri. The petition alleges that the van’s cruise control had been engaged; that as the van approached an intersection, Mr. Eltiste attempted do disengage the cruise control, but it would not disengage. It asserts that as a result of the cruise control failing to disengage, the vehicle went through the intersection, left the roadway, and hit an embankment thereby injuring the occupants.

The petition alleges that in January 1994, the van had been taken to relator for repairs. An operator of the van had experienced a sudden acceleration during which the cruise control would not disengage. It asserts that relator purportedly repaired the defect; that it gave assurances that the defect had been repaired.

Following the filing of the petition in Greene County, relator filed a motion to dismiss the action for lack of personal jurisdiction and failure to state a claim on which relief could be granted. The respondent trial judge denied the motion.

Relator’s Allegation

Relator presents two points relied on in support of its claim that this court should prohibit the respondent judge from exercising jurisdiction in the underlying tort action other than to dismiss the petition as to relator. Point I asserts that Missouri lacks personal jurisdiction over relator because relator did not transact business in Missouri and the underlying cause of action did not arise from relator’s contacts with Missouri. Point II argues that there is no personal jurisdiction over relator because relator does not keep or have an office or agent in Missouri for the transaction of its usual and customary business; that the underlying tort action did not occur in Missouri; and because venue is not proper as to the co-defendant in the underlying action, Ford Motor Company.

Nonresident Defendant

Relator is a nonresident of Missouri. “In order for a non-resident defendant to subject itself to the long-arm jurisdiction of this state, two elements must be present. Dillaplain v. Lite Industries, Inc., 788 S.W.2d 530, 533 (Mo.App.1990). First, the suit must arise out of the activities enumerated in the long arm statute;[ ] second, the defendant must have sufficient minimum contacts with Missouri to satisfy due process requirements. Id.” Chromalloy American Corp. v. Elyria Foundry Co., 955 S.W.2d 1, 4 (Mo. banc 1997).

The intent of the legislature in adopting Missouri’s long arm statute “was to extend the jurisdiction of the courts of this state over nonresident defendants to that extent permissible under the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.” State ex rel Deere & Co. v. Pinnell, 454 S.W.2d 889, 892 (Mo. banc 1970). “[D]ue process requires only that in order to subject a defendant to a judgment in personam, if he be not present within the territory of the forum, he have certain minimum contacts with it such that the maintenance of the suit does not offend ‘traditional notions of fair play and substantial justice.’ ” Id. at 893.

To determine whether or not [a nonresident defendant] had sufficient minimum contacts with this state to satisfy due process requirements, the following factors shall be considered: (1) the nature and quality of the contacts with the forum state, (2) the quantity of contacts with the forum state, (3) the relation of the cause of action to the contacts, (4) the interest of the forum state in providing a forum for its residents, and (5) the convenience of the parties.

Simpson v. Dycon International, Inc., 618 S.W.2d 455, 457 (Mo.App.1981). In reviewing minimum contacts, a court focuses on the relationship between the defendant, the forum and the cause of action. State ex rel. William Ranni Associates, Inc. v. Hartenbach, 742 S.W.2d 134, 138 (Mo. banc 1987).

Due Process

(1) Nature and quality of relator’s contacts with Missouri

As a Nebraska corporation, relator is a nonresident of Missouri. It is not registered to do business in Missouri. The only location where relator completes sales or repairs of vehicles is its place of business in Auburn, Nebraska. Relator had no contacts in Missouri with the plaintiffs in the underlying tort action. The nature and quality of contacts favor relator for purposes of determining if the underlying tort action arose from relator’s contacts with Missouri.

(2) Quantity of relator’s contacts with Missouri

Relator’s business advertising includes a newspaper advertisement in a weekly newspaper published in Rockport, Missouri, and a billboard advertisement in Missouri near Rockport. It advertised in telephone book yellow pages in the 1995 and 1997 Official Telephone Directories for Northwest Missouri.

Relator has purchased cars for resale from an auto auction in Kansas City, Missouri. There is nothing in the record before this court that would indicate those purchases affected the plaintiffs in the underlying ±Qrt action.

Persons with Missouri addresses have purchased or leased 80 vehicles from relator from 1993 to 1998, an average of 16 vehicles per year. Relator’s records reflected it had repaired 326 vehicles owned by persons with Missouri addresses from 1994 to 1998. The plaintiffs in the underlying action alleged that relator had contacted Missouri residents by U.S. Mail, facsimile correspondence and telephone calls.

The circumstances revealed by the record do not indicate that the plaintiffs in the underlying tort action were affected in any respect by the quantity of contacts relator had with residents of Missouri. This court concludes that neither the plaintiffs in the underlying action nor relator is favored with respect to the quantity of relator’s contacts with Missouri.

(3)Relation of the cause of action to relator’s contacts with Missouri

The accident that is the basis of the underlying tort action occurred in Nebraska. The repairs about which plaintiffs complained occurred in Nebraska. Plaintiffs do not allege that they chose relator to repair their vehicle as a result of any of relator’s Missouri contacts. The relation of the cause of action to relator’s contacts in Missouri significantly favors relator.

(⅛) Interest of Missouri in providing a forum

No party to the underlying tort action is a resident of Missouri. Missouri has no obligation to provide a forum for Nebraska residents to sue a Nebraska corporation that maintains its sole business and sales office in Nebraska. This factor favors relator.

(5) Convenience of the parties

There is no showing that any party to the underlying tort action would find it more convenient for that action to be tried in Missouri. Furthermore, if the action were tried in Missouri, it is likely that the applicable substantive law would be Nebraska law. See Thompson by Thompson v. Crawford, 833 S.W.2d 868, 870 (Mo. banc 1992). The factor of convenience favors relator.

This court concludes that relator did not have sufficient minimum contacts with Missouri with respect to the underlying tort action to satisfy due process requirements that would enable Missouri courts to exercise jurisdiction over a nonresident defendant. Point I is granted. It is determinative. For that reason Point II need not be, and is not, addressed.

Peremptory writ in prohibition shall issue commanding the respondent judge to take no action in case number 198CC1911 pending in the Circuit Court of Greene County, Missouri, with respect to the relator herein other than dismissing the petition as to that party.

CROW, P.J., and SHRUM, J., concur.

      . Missouri’s long arm statute is § 506.500, RSMo 1994.


source: Caselaw Access Project

author: THOMAS H. NEWTON, Judge.

license: Public Domain

text:
    Angela M. EWING-CAGE and Herman Cage, Respondents, v. QUALITY PRODUCTIONS, INC., Appellant.
    No. WD 57293.
    Missouri Court of Appeals, Western District.
    May 23, 2000.

      Rhonda S. Loeppke, Independence, for Appellant.
    Angela M. Ewing-Cage, pro se.
    Before JOSEPH M. ELLIS, P.J., PAUL M. SPINDEN and THOMAS H. NEWTON, JJ.
   THOMAS H. NEWTON, Judge.

Quality Productions, Inc., the employer of Manuel Bribiesca at the time of a vehicular accident between Manuel Bribiesca and Angela Ewing-Cage, appeals from a judgment for $8,000.00 entered against it and in favor of Angela Ewing-Cage and her husband, Herman Cage, by the Circuit Court of Jackson County. Quality Productions, Inc. filed a Motion to Reconsider the Judgment, but the trial court denied it.

I. Factual and PROCEDURAL BackgRound

On November 13, 1997, Mrs. Ewing-Cage and Manuel Bribiesca were involved in an automobile accident. Mrs. Ewing-Cage was driving a car owned by her and Mr. Cage. Mr. Bribiesca, a Quality employee, was driving the only company-owned vehicle. Mrs. Ewing-Cage subsequently filed a petition in small claims court seeking $3,000.00 in property damages from Quality. Mr. Bribiesca was dismissed from the suit prior to trial because service of process was not obtained upon him. After a trial, on July 20, 1998, the Associate Circuit Court of Jackson County rendered a judgment for $3,000.00 in favor of the Cages.

On July 23, 1998, Quality filed an application for trial de novo. The case was tried again on May 3, 1999, before the Circuit Court of Jackson County, the Honorable Justine E. Del Muro, presiding. At trial, both Mr. and Mrs. Cage testified in their own behalf in addition to cross-examining Quality’s one witness. Mrs. Ewing-Cage testified about the sequence of events leading to the collision, presented pictures of the damage done to their car and testified that the car “was a total loss,” and that she had been without a vehicle since the date of the accident. Mr. Cage testified that in speaking to Mr. Garcia, a man whom he knew to be the owner of both Quality Productions, Inc. and the vehicle driven by Mr. Bribiesca, Mr. Garcia “displayed to [him] no concern, no remorse, no anything.” Later in their casein-chief, Mrs. Ewing-Cage testified in part,

They know that their driver didn’t have a license, you know. And if he’s not responsible, I feel like somebody should be responsible if it was their vehicle.

Quality presented one witness, Edward Hall, a Quality plant manager. Mr. Hall testified that Mr. Bribiesca worked for Quality as a “utility person” who “cleaned up and went and got products and stuff’ on the company’s behalf. Mr. Hall testified that in the past, Mr. Bribiesca had driven the company vehicle “off and on,” but that Mr. Bribiesca had to ask for permission, and Mr. Hall “would give him direct orders on what to go and get and when to go and get it.” However, Mr. Hall testified that at the time of the accident, Mr. Bribiesca was not permitted to drive the Quality-owned vehicle, because “three weeks earlier, he didn’t have a license .... ” Mr. Hall testified that when the accident occurred, Mr. Bribiesca was using the company vehicle to go to lunch with his girlfriend. He said that the crashed vehicle was the only vehicle that the company owned. Finally, Mr. Hall testified that Mr. Bribiesca was no longer employed by Quality because he had been fired “partly because of this accident and partly because of his attitude.”

On May 4, 1999, the trial court rendered a judgment for $3,000.00 in favor of Mr. and Mrs. Cage. On May 13, 1999, Quality filed a motion to reconsider. The motion was denied, and this appeal followed.

II. Standard of Review

The standard of review in a court-tried case is guided by the principles enunciated in Murphy v. Carron, 536 S.W.2d 30 (Mo. banc 1976). The judgment of the trial court will be affirmed unless there is no substantial evidence to support it, unless it is against the weight of the evidence, or unless it erroneously declares or applies the law. Id. at 32. We review the evidence in the light most favorable to the prevailing party, giving that party the benefit of all reasonable inferences and disregarding contrary evidence and inferences. Bach v. McGrath, 982 S.W.2d 734, 735 (Mo.App. E.D.1998).

III. Legal Analysis

The issue of whether Manuel Bribiesca’s negligence caused the accident is not in dispute. Nor is it disputed that Quality owned the vehicle driven by Mr. Bribiesca or that Mr. Bribiesca was a Quality employee at the time in question. However, Quality argues that it should not be held liable for Mr. Bribiesca’s conduct under a respondeat superior theory of employer liability. Quality argues that Mr. Bribies-ca was using its vehicle without its express or implied permission at the time of the accident. Quality also argues that Mr. Bribiesca’s use of the vehicle at the time was for wholly personal reasons and was not in the course and scope of his employment with Quality.

Under the doctrine of respondeat superior, an employer may be held liable to a third party for a tort committed by its employee if the employee committed the tort while engaged in activities within the scope of his or her employment. Davis-Bey v. Missouri Dept. of Correction, 944 S.W.2d 294, 298 (Mo.App. W.D.1997). The plaintiff has the burden of proving that an employee’s tortious conduct was within the course and scope of his or her employment. Galemore Motor Co., Inc. v. State Farm Mut. Ins. Co., 513 S.W.2d 161, 168 (Mo.App. S.D.1974). In determining whether an act was committed within the scope of one’s employment, we look not at the time or motive of the conduct, but rather at whether the act was done by virtue of the employment and in furtherance of the business or interest of the employer. P.S. and R.S. v. Psychiatric Coverage, Ltd., 887 S.W.2d 622, 624 (Mo.App. E.D.1994). If the act is naturally incident to the employer’s business and did not arise wholly from some external, independent or personal motive, it is done while engaged in the employer’s business. Id. However, in situations where a tort is committed through the use of a vehicle, “[tjhere is a presumption that the employee was acting within the scope of his employment whenever the vehicle is owned by the employer and driven by the employee.” McCoy v. Hershey Chocolate Co., 655 S.W.2d 128, 131 (Mo.App. E.D.1983) (citing, Stone v. Reed, 247 S.W.2d 325, 330 (Mo.App.1952)). This presumption disappears only when the defendant introduces substantial controverting evidence. Johnson v. Bi-State Development Agency, 793 S.W.2d 864, 868 (Mo. banc 1990).

In the case at bar, the parties agree that at the time of the accident, Mr. Bribiesca was employed by Quality, and he was driving a vehicle owned by Quality. Therefore, the presumption that Mr. Bribiesca was acting within the scope of his employment arose. That presumption could be eliminated only upon Quality presenting substantial evidence dispelling the notion that Mr. Bribiesca’s use of the vehicle at the time was for the purpose of furthering Quality’s business interests in some fashion. Id.; P.S. and R.S., 887 S.W.2d at 622. Quality contends it presented such evidence.

Quality’s witness, Edward Hall, testified that at the time, (1) Quality owned one company vehicle; (2) Mr. Bribiesca was forbidden from driving the vehicle, because he did not have a valid driver’s license, and he was only allowed to ride in it if another Quality employee drove; (3) Mr. Bribiesca had surreptitiously taken the keys to the company vehicle out of Mr. Hall’s desk drawer, unbeknownst to anyone; and (4) Mr. Bribiesca’s purpose for using the vehicle was merely to take his girlfriend to lunch. We are mindful of the general rule that the master-servant relationship is suspended while the servant is going to and from meals, even though he is driving the master’s car, unless the master receives some direct benefit from the servant’s use of the master’s car. McCoy, 655 S.W.2d at 131.

With Quality’s evidence, the presumption disappeared, but the result would be the same, because the trier of fact can look at all of the evidence and the reasonable inferences from the evidence. Clearly, in this case, there was sufficient evidence to justify the trial court’s decision. The record as a whole supports a finding that Mr. Bribiesca was indeed acting within the scope of his employment at the time of the accident. The testimony of the Cages showed the relationship between Mr. Bribiesca and Quality. Mr. Hall, the Quality representative, acknowledged that Mr. Bribiesca was a Quality employee at that time. Mr. Hall also testified that Mr. Bribiesca had been permitted to use the vehicle for company purposes in the past. Given that Mr. Bribiesca’s employment was terminated “partly because of [the] accident” and, for some reason, was not available for trial, one could reasonably infer that, contrary to Mr. Hall’s assertions, Mr. Bribiesca was using the company car for company purposes at the time in question. One could also conclude that it was unlikely that Mr. Bribiesca would use the only company vehicle to go to lunch if he was prohibited from driving it. More importantly though, the trial court in its discretion, weighed all of this evidence and the reasonable inferences, ascertained the credibility of the parties, and decided for the Cages.

The judgment of the trial court is affirmed.

ELLIS and SPINDEN, JJ„ concur.