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Dowd v. Boro Drugs Inc.

Decided: November 22, 1961.

BARBARA DOWD, PLAINTIFF-RESPONDENT,
v.
BORO DRUGS, INC., A NEW JERSEY CORPORATION, AND ROUX LABORATORIES, INC., A FOREIGN CORPORATION, DEFENDANTS-APPELLANTS



Conford, Freund and Labrecque. The opinion of the court was delivered by Labrecque, J.s.c. (temporarily assigned).

Labrecque

Defendant Roux Laboratories, Inc. appeals, by leave of court, from the denial of its motion to quash service of the summons and complaint. No question is raised concerning the method of the service made, it being admitted that Roux had effective notice of the pendency of the proceedings. The sole question for determination is whether the activity of the defendant in this State was such as to enable the plaintiff to effect in personam jurisdiction over it by the use of the provisions for service made available by R.R. 4:4-4(d).

Defendant Roux Laboratories, Inc. is a New York corporation not authorized to transact business in New Jersey either at the time the alleged cause of action arose or at any time subsequent thereto. At no time has it owned, leased, or otherwise occupied any real estate in New Jersey. It has no office within the State.

Roux is engaged in the manufacture and sale of various products, one of which is Roux Color Shampoo. Its headquarters is in New York State. The complaint asserts that plaintiff purchased from the codefendant Boro Drugs, Inc., operator of a retail drug store in Kenilworth, a bottle of Roux Color Shampoo; that upon applying the same it was found to contain dangerous and harmful chemicals and other substances, by reason whereof she sustained injury. The action against Roux sounds in negligence. Service was made upon it by registered mail in New York pursuant to R.R. 4:4-4(d). The defendant, based on the affidavit of James Feigen, its vice-president, moved to quash service on the ground of lack of jurisdiction. No reply affidavit was filed, but both plaintiff and defendant offered oral testimony on the return day of the motion. The plaintiff called one Charles Heller, the owner of the codefendant Boro Drugs, Inc., who testified (in response to some extremely leading questions, we note) to visits which would be made to his store once or twice a year

by an otherwise unidentified "salesman from Roux Laboratories, Inc." Typical of his testimony is the following:

"Q. And going back prior to the year 1956, would a salesman from Roux Laboratories, Inc., and beginning with the year 1947 when you say you first began to operate your store in Kenilworth, would a salesman at least once a year come in from Roux Laboratories, Inc., to your store with reference to the sale to you of their product, Roux Color Shampoo? A. I would say that is the usual practice but I wouldn't remember exactly how far back they have been coming but I would say it's the usual practice to see a representative or salesman of the company.

Q. When this salesman would come to your store from Roux Laboratories, Inc., what would be the procedure which he would follow so far as getting any order from you is concerned. A. Well, the man would come in and say, 'I'm from Roux, I'm from the Roux Company,' and we would show him where the stuff was and he could look at all the merchandise, check it for dates, see if it's out of date or not because they all have dates on them. Then he would take out the out-dated stuff, tell us to send it back to the drug jobber, fill in with the merchandise that's missing, also through the drug jobber."

And further:

"Q. During the year 1956 and thereafter, up to the present time, you would give an order at least once or twice a year to a Roux salesman? A. I think so."

And further:

"A. Well, Roux Company just recently had demonstrations at the wholesale drug companies for the Roux products and just last month we had a local pharmacy meeting and one of the Roux representatives gave us a lecture on Roux products."

On cross-examination he further testified that he purchased defendant's products through a jobber rather than a distributor; all jobbers handled Roux products. He received no bills from Roux and made no payments to it. He likewise had no dealings with Paragon Distributing, a distributor of defendant's products.

The defendant called Feigen who testified that since 1957 all of the company's products were sold, either in New York State (to Paragon Distributing Company or Glenby Company)

or to one of several other distributors outside of the United States. It maintained no sales force of its own. Included in Feigen's testimony is the following:

"Q. Does it [Roux] maintain any force of persons whose duty it is to disseminate information about Roux products throughout the United States? A. No, sir.

Q. Does your company dispatch any demonstrators or other such persons for the purpose of illustrating the uses of Roux products in the United States? A. No, sir.

Q. Do you know of any business transaction which Roux Laboratories, Inc. entered into in the State of New Jersey from 1956 to date? A. I do not."

And further:

"Q. Do you have any knowledge as to whether or not the Roux Laboratories products are advertised in any magazines? A. Yes.

Q. They are advertised in magazines? A. Yes.

Q. In which magazines are they advertised? A. Advertised in 'Vogue,' in 'Harper's,' in 'Glamour.' * * * 'Ladies' Home Journal.'"

Feigen also testified that there was a certain amount of newspaper advertising but he had no knowledge as to the distribution of the newspapers in which the ads were carried. There was no radio or television advertising. Color charts in connection with its products were furnished by Roux. These were delivered by it to Paragon, the distributor. It was the intention of Roux to have its product "used as much as possible throughout the entire United States." Although its products were widely sold in New Jersey, he stated that the company had no direct contact with stores or places of sale here. Paragon Distributing pre-existed Roux and none of its officers were officers of Roux. There was no written agreement between the firms.

In denying the motion to quash service, the court held that the fact that the products in question were advertised by the company and used ...


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