Gaulkin, Foley and Collester. The opinion of the court was delivered by Gaulkin, S.j.a.d.
This case presents the question whether a foreign corporation may be subjected to the jurisdiction of our courts under R.R. 4:4-4(d) when its only contact with New Jersey has been the shipment of goods into New Jersey which were purchased in New Jersey by a New Jersey resident but caused injury in Connecticut to a Connecticut resident.
The litigation began with the complaint of Adrienne Roland against Modell's Shoppers World of Bergen County, Inc. and Modell's Shoppers World of Union County, New Jersey corporations (hereafter collectively Modell's), retailers of wearing apparel. The first count of the complaint alleged that Modell's sold a leotard to a member of Adrienne's family at its store in Lodi, New Jersey; Modell's "conduct in the premises" was "negligent and unlawful" in that said "leotard or portions thereof were combustible and inflammable," and Modell's failed to give warning of that fact to purchasers and otherwise violated the "Flammable Fabrics Act," (15 U.S.C.A. § 1191 et seq.); as a result the garment caught fire while Adrienne, then five years old, was wearing it at her home in Stamford, Connecticut, causing her serious injuries. The second count charged that this constituted "a breach of the implied warranty of merchantability, as provided
by R.S. 46:30-20," or of "the implied warranty of reasonable fitness for the particular purpose for which the article was required as provided by R.S. 46:30-21," or "of an express warranty as provided by R.S. 46:30-18". The accident occurred on March 24, 1960, hence the Uniform Commercial Code does not apply.
Modell's filed a third-party complaint against Warehouse Distributors, Inc., alleging that Warehouse was Modell's lessee and had made the sale, and was liable for whatever wrong was done to Adrienne. Warehouse then filed a fourth-party complaint against Pinky Town, Inc. (Pinky) and Nimfees, Inc. (Nimfees) and others, alleging that one of them had sold the leotards to Warehouse and was liable for any sums for which Warehouse might be held liable. As an alternative count, Warehouse claimed contribution under the Joint Tortfeasors Contribution Act. Pinky and Nimfees were served by mail under R.R. 4:4-4(d). That rule provides that if service upon a foreign corporation cannot be made in this State, it may be made "subject to due process of law, by mailing, * * * a copy of the summons and complaint to * * * its principal place of business, or to its registered office." Pinky and Nimfees moved to set aside the service, and their motions were granted. Warehouse appeals.
The question before us is this -- does the Federal Constitution permit our courts to obtain in personam jurisdiction over Pinky and Nimfees (hereafter the defendants) in this fashion, under the circumstances of this case?
The motions were heard upon affidavits, answers to interrogatories and depositions. They show that defendants are not licensed to do business in New Jersey, never had an office, officers, agents or employees or owned property in New Jersey, and never advertised or solicited business here, except that for about three months in 1961, after the sale in question, Nimfees' salesmen solicited orders for bathing suits in New Jersey. The leotards were purchased by Warehouse through Merchandising Associates, Warehouse's representative, which placed Warehouse's orders with Pinky or Nimfees in New York City.
They shipped the goods to addresses designated by Warehouse, f.o.b. New York, by independent carrier or by mail. They had sold merchandise of various types to Warehouse for several years before the sale in question, and have other New Jersey customers to whom sales and deliveries are made in the same manner. Bills are mailed to the purchasers at their home offices. Presumably the home office of Warehouse is in New Jersey.
At this point it may be helpful to summarize the features of this case which the numerous authorities on the subject have deemed more or less significant:
1. The product was dangerous.
2. The defendants delivered to other customers in New Jersey over a period of years.
3. The purchaser was a resident and the purchase was made here.
4. Adrienne is a resident of Connecticut and she was injured there.
5. It is not the infant who is suing Pinky and Nimfees but Warehouse.
6. The contract of sale was entered into in New York.
7. Except for Nimfees' solicitation of orders for bathing suits, neither defendant ever physically entered New Jersey.
8. The goods were delivered in New Jersey by mail or by public carrier f.o.b. New York.
9. Pinky and Nimfees are not the manufacturers of the product, only distributors.
10. Pinky and Nimfees billed Warehouse in New Jersey and the bills were paid from New Jersey.
11. The places of business of Pinky and Nimfees are near Hackensack, where the court is located, and it would not be inconvenient for them to litigate the matter here.
12. Except as above set forth, these defendants had no contacts with New Jersey.
We hold that the service upon Pinky and Nimfees was valid and we reverse.
The history of the development of jurisdiction over nonresidents from Pennoyer v. Neff, 95 U.S. 714, 24 L. Ed. 565 (1878), to International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95 (1945), is too well known to require retelling here. Representative portions of the mass of material on the subject are mentioned in J. W. Sparks & Co. v. Gallos, 47 N.J. 295 (1966); Hoagland v. Springer, 75 N.J. Super. 560 (App. Div.), affirmed 39 N.J. 32 (1962); Longines-Wittnauer Watch Co. v. Barnes & Reinecke, Inc., 15 N.Y. 2 d 443, 261 N.Y.S. 2 d 8, 209 N.E. 2 d 68 (Ct. App. 1965), certiorari denied Estwing Manufacturing Co. v. Singer, 382 U.S. 905, 86 S. ...