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Webb v. Stanker and Galetto Inc.

Decided: June 11, 1964.

DAVID WEBB, JR., PLAINTIFF,
v.
STANKER AND GALETTO, INC., ET AL., DEFENDANTS-THIRD-PARTY PLAINTIFFS-APPELLANTS, V. U.S. PLYWOOD EXPORT CORP., ET AL., THIRD-PARTY DEFENDANTS, AND EARTH MOVERS INC., THIRD-PARTY DEFENDANT-RESPONDENT



Gaulkin, Foley and Lewis. The opinion of the court was delivered by Gaulkin, S.j.a.d.

Gaulkin

Stanker and Galetto, Inc., a New Jersey corporation (hereafter Stanker), filed a third-party complaint against Earth Movers, Inc., a Delaware corporation. Earth Movers was served by certified mail, pursuant to R.R. 4:4-4(d). The trial court granted Earth Movers' motion to set aside the service, and Stanker appeals.

The motion was heard on affidavits. The following facts appear from the pleadings and affidavits.

In 1960 U.S. Plywood entered into a contract with Hastings and Eskridge, general contractors, for the construction of a warehouse in Seaford, Delaware. Hastings and Eskridge contracted with Earth Movers to do the filling, grading and blacktopping about the building. Hastings and Eskridge abandoned the contract because of the death of Hastings, and Stanker contracted with U.S. Plywood to complete the job as general contractor. Stanker's agent went to the office of Earth Movers, in Seaford, and arranged for Earth Movers to do the filling, grading and blacktopping as Stanker's subcontractor. Earth Movers prepared a writing setting forth the work to be done, at a price of $8,000, and mailed it in duplicate to Stanker's office in Vineland, N.J. Stanker signed one copy "Accepted" and returned it, by mail, to Earth Movers. Earth Movers then did the work it proposed to do, and Stanker paid it the $8,000 by checks mailed from Vineland.

Stanker subcontracted the painting of the warehouse to Webb Construction Company, Inc., a Delaware corporation. Plaintiff David B. Webb, Jr. (hereafter Webb), a resident of Seaford and an employee of Webb Construction Company, was injured while engaged in painting the warehouse.

Webb instituted an action in the Superior Court, Law Division, Cumberland County, against Stanker and its officers individually, for damages. His complaint alleged that he fell from a scaffold mounted on a motor truck because the wheels of the truck sank "into loose earth * * * that had been deposited * * * at the instance and direction * * *" of defendants. Webb charged that Stanker and its officers were liable for his injuries because:

"9. It became and was the affirmative duty of the corporate defendant to employ competent supervisors and overseers; to see that the said scaffold was maintained in a proper and horizontal position so that the same would not tilt or tip over; to see that the firmament upon which the truck would necessarily rest was of sufficient rigidity, thickness and strength to bear, sustain and support the weight of the truck and its scaffolding so that it would have a secure footing; to furnish the plaintiff with a safe place to work; to properly inspect and make certain that the work area and its ways and approaches that were assigned to him were in reasonably safe condition; to alert and warn the plaintiff of a hazard then and there existing in an imminently dangerous condition, and which was not open, patent or visible to plaintiff; to faithfully and fully comply, as required, with the statutes of the State of Delaware, viz: the provisions of Title 16 of the Delaware Code Annotated (1953), in such case made and provided and dealing with the health, safety and welfare of laborers, such as the plaintiff; and properly to supervise and direct the work of the plaintiff, which it had undertaken to do and to furnish such devices as to reasonably have guarded him against injury."

Stanker made no motion to dismiss the complaint on the ground of forum non conveniens. Cf. Vargas v. A.H. Bull Steamship Co. , 44 N.J. Super. 536 (Law Div.), affirmed 25 N.J. 293 (1957); "Developments in the Law: State-Court Jurisdiction," 73 Harv. L. Rev. 909, 1012-1013 (1960). It filed an answer denying liability, and a third-party complaint against U.S. Plywood and Earth Movers. The allegations of the third-party complaint against U.S. Plywood have no bearing on the issue before us. As against Earth Movers the third-party complaint alleges in substance that (to quote the affidavit of Stanker's counsel): "* * * it was Earth Movers, Inc., in fulfillment of their contract to place fill in the area surrounding the erection on the premises, who would or

should be chargeable with the negligence claimed by plaintiff to have caused the accident and Earth Movers, Inc. would accordingly be liable by way of indemnification or at least as a joint tort feasor."

Earth Movers had no contact with New Jersey except as above set forth. As its brief says: "* * * It is a family corporation which is not and has never been authorized to do business in New Jersey nor has it ever filed an application for the purpose of being authorized to do business in New Jersey. Its officers never have and do not own property, real or personal, within the borders of New Jersey. It does not nor has it ever owned property, real or personal, in New Jersey. It does not manufacture products for sale in New Jersey, and it has never sold anything in the State of New Jersey. It has no agents or representatives in the State of New Jersey, and never had any agents or representatives in New Jersey. It has no office or place of business in New Jersey. It does not nor has it ever solicited business by mail, advertisement or otherwise in New Jersey. It never had nor does it now have a mailing service for the purpose of soliciting business. It never has and it does not now advertise in any magazine, newspaper or other periodical for the purpose of soliciting or obtaining business. The only place in which the name appears is in the yellow pages of the Lower Delaware telephone directory, and at times the name of the corporation appears on periodicals sponsored by local charitable organizations, such as churches. It never has nor does it now have a telephone or other listing anywhere in the State of New Jersey. Earth Movers, Inc. never did any business in New Jersey nor did it perform any service in New Jersey at any time prior to the happening of the accident in this cause." And, of course, the contract was to be performed in Delaware, the accident happened in Delaware, and Webb is a resident of Delaware.

Judge Arthur L. Joseph held that these facts "fail to establish the necessary minimum contacts in New Jersey on the part of Earth Movers, ...


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