No. 12693 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

MOODY J. HARRINGTON and VICKY HARRINGTON, 

husband and wife, 

Plaintiffs and Appellants, 

HOLIDAY RAMBLER CORPORATION, 

Defendant and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

Honorable Paul G. Hatfield, Judge presiding. 

Counsel of Record: 

For Appellants : 

Hoyt and Bottomly, Great Falls, Montana 

John C. Hoyt argued, Great Falls, Montana 

For Respondent : 

Church, Harris, Johnson and Williams, Great Falls, 

Montana 

Donald A. LaBar argued, Great Falls, Montana 

Submitted: April 23, 1974 

~ecided : *&L 1 8 1974 

Filed : &L 18 1974 
Mr. Chief Justice James T. Harrison delivered the Opinion of the 

Court . 

This is an appeal from an order of the district court of 

Cascade County granting defendant's motion to dismiss for lack 

of jurisdiction over defendant. The motion was made under Rule 

12(b)(2), Montana Rules of Civil Procedure, 

Plaintiffs Moody J. Harrington and Vicki Harrington are 

residents and citizens of the state of Montana and make their 

home in Great Falls, Defendant Holidy Rambler Corporation is a 

foreign corporation and has its principal place of business in 

Wakarusa, Indiana, 

The root of plaintiffs' complaint lies in an alleged defective 

travel trailer manufactured by defendant and purchased new by 

plaintiffs in Spokane, Washington. The complaint in essence alleges: 

(1) That plaintiffs purchased a new Holiday Rambler travel 

trailer at a total cost of $12,691 from a franchised dealer and 

agent of defendant. 

(2) That plaintiffs informed the dealer the trailer was 

being purchased for use in Montana and plaintiffs towed it there 

immediately . (3) That defendant manufactures travel trailers and sells 

and distributes them throughout the United States, including 

Montana, and in addition provides parts and service for its trailers 

in Montana. 

(4) That prior to and at the time of purchase defendant, 

through its agents and representatives, expressly and impliedly 

warranted to plaintiffs that the trailer was fit for the use intended 

by them and that normal repairs and defects would be made good by 

defendant at its sole expense while the trailer was new. 

(5) %at defendant breached its warranties with respect to 

the trailer purchased by plaintiffs in that the following defects 

were discovered: gas leaks, sagging floors, torn linoleum, faulty 

drains, inoperative hot water tank, sagging ceilings, inoperative 
doors and locks, missing oven latch, leaky windows, falling 

draperies, holding tank odors, defective propane bottle, and 

various other defects. 

(6) That plaintiff Vicki Harrington, at the suggestion of 

a franchised dealer of defendant in Great Falls, called the manager 

of defendant's factory in Indiana in order to ask about getting the 

trailer replaced with a new unit in workable order, whereupon the 

manager became belligerent and abusive and accused plaintiff of 

being drunk when she in fact does not drink alcoholic beverages, 

and informed her that since plaintiffs had purchased the trailer 

they were stuck with it, "She would have to keep the Goddam trailer 

and quit bitching to him about it. 1' 

(7) That plaintiffs had to store the trailer for 128 days 

at $2.50 per day or a total cost of $320 because they were unable to 

use it for its intended purpose. 

(8) That defendant represented and warranted to plaintiffs 

that the trailer was new and in workable condition, and thereby 

induced plaintiffs to purchase it. 

(9) That defendant fraudulently and maliciously refused to 

honor its representations and warranties. 

(10) That defendant abused plaintiffs when they inquired 

what could be done about the situation. 

The prayer for relief was for a return of the down payment, 

assumption by defendant of the finance obligations; $3,000 for personal 

suffering; $25,000 for punitive damages; plus costs and disbursements. 

Defendant filed a motion to dismiss for want of jurisdiction 

over its person. This motion was supported by a brief and the 

affidavit of its vice president, the salient parts of which claim: 

(1) That defendant has no representative in or assigned to 

Montana, has not qualified to do business in Montana, and owns no 

parts, supplies or other property located in Montana. 

(2) That any orders received from dealers located in 

Montana are and have been received by defendant in Indiana, and 
shipped by common carrier F.O.B. Wakarusa, Indiana. 

(3) That no sales are made by defendant through any 

employee or agents within Montana. 

At a hearing on defendant's motion, plaintiffs testified, 

offered exhibits, and were cross-examined. Defendant relied solely 

upon its affidavit, On the basis of this affidavit the district court 

granted defendant's motion. Plaintiffs were given 20 days to amend 

their complaint but did not do so. Thereafter the district court 

ordered the case dismissed without prejudice. 

After a brief but fruitless excursion into federal court, 

plaintiffs filed a second complaint in the district court. This 

complaint was substantially the same as the first one, but contained 

even more allegations and asked for increased damages. Defendant 

again filed a motion to dismiss for lack of jurisdictian and its 

affidavit in support thereof. Without a hearing, the district court 

granted the motion to dismiss. 

Plaintiffs seek review of the merits of the district court's 

ruling on the jurisdiction question, 

The underlying issue is whether the denial djurisdiction, 

i.e. defendant's affidavit,overcomes the allegations of the complaint. We find it does not and hold that dismissal of plaintiffs' 

complaint on that ground was premature. 

The complaint contains numerous allegations of a rather 

serious nature which, if proved, would place plaintiffs in a 

favorable position. It states the trailer was purchased from a 

franchised dealer and agent of defendant who did not charge plaintiffs a Washington sales tax and who gave them a brochure listing 

two franchised factory agents from whom service could be obtained 

in Montana (alleged in the second complaint); that defendant sells 

and distributes its trailers in Montana; that parts and services 

for defendant's trailers are available in Montana; that defendant's 

franchised dealer in Great Falls suggested that plaintiffs call 

defendant's factory in Indiana; and, that defendant violated its 
warranties on the trailer and committed torts against plaintiffs 

in Montana. 

By comparison, defendant's affidavit is ambiguous if not 

contradictory. On one hand defendant flatly asserts that it has 

nothing to do with the state of Montana, has "no representative 

resident assigned to or in Montana" and "no sales are made * * * 

within * * * ~ontana." On the other hand, defendant admits at 

It least tacitly to having dealers in Montana--- orders received from 

dealers 'located in Montana" are accepted by the factory in Indiana, 

etc. Moreover, the tenor of the affidavit may reflect an unduly 

restrictive view as to what Rule 4, M.R.Civ.P., demands in order 

for jurisdiction to attach. Rule 4(b) (1) defines jurisdiction 

of persons as: 

"All persons found within the state of Montana are 

subject to the jurisdiction of the courts of this 

state. In addition, any person is subject to the 

jurisdiction of the courts of this state as to any 

claim for relief arising from the doing personally, 

through an employee, or through an agent, of any 

of the following acts : 

"(b) the commission of any act which results 

in accrual within this state of a tort action. I I 

A reading of the allegations of the complaint clearly shows 

defendant was "found" within the state of Montana and that defendant 

committed torts in Montana by way of fraud and personal abuse. 

Defendant's affidavit, however, does not satisfactorily explain 

away plaintiffs' allegations concerning the former rule requirement, 

and fails to address itself at all to the latter rule requirement. 

The most troublesome aspect here is that defendant was 

permitted simply to say "~ay" upon affidavit and thereby prevent 

plaintiffs from having their day in court. We are not disposed to 

say it is always improper to grant a motion to dismiss for lack of 

jurisdiction over the defendant when at a hearing on that motion 

the defendant offers nothing more in support of its position than 

an affidavit, but we do feel that in the normal course of things 

plaintiffs at least ought to have the opportunity to cross-examine 
the defendant. Fundamental fairness requires that to the extent 

plaintiffs are denied such an opportunity, defendant's affidavit 

should be given less weight. 

Reversed and remanded for further proceedings not inconsistent 

with this Opinion. 

-e' 

-r-r---rk--------,-,---------;5 

Chief Justice 

We Concur: 

Justices. /