Steele v. Western Union Telegraph Co.
| Decision Date | 21 March 1934 |
| Docket Number | 86. |
| Citation | 173 S.E. 583 |
| Parties | 206 N.C. 220, 96 A.L.R. 361 v. WESTERN UNION TELEGRAPH CO. STEELE |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Buncombe County; McElroy, Judge.
Action by Florence E. Steele against the Western Union Telegraph Company. From a judgment in favor of the plaintiff, the defendant appeals.
Judgment affirmed.
Transitory action brought by a nonresident in the general county court of Buncombe county against a foreign corporation, doing business in this state, on a cause of action arising in the District of Columbia.
It appears from the complaint that the plaintiff is a resident and citizen of the District of Columbia; that the defendant is a corporation organized under the laws of the state of New York, doing business in the District of Columbia, the state of North Carolina, and elsewhere in the United States and foreign countries; and that the cause of action, upon which plaintiff sues, is one in tort to recover damages for personal injuries alleged to have been caused by the negligent or willful conduct of a servant or messenger boy of the defendant in the District of Columbia.
Service of process was made upon the defendant by reading and delivering a copy of the summons and verified complaint to E N. Williams, local agent of the defendant and manager of its office at Asheville, Buncombe county, N. C., as provided by S. C. § 483.
The defendant appeared specially and moved to quash the summons on the ground that it had not been brought into court on any valid and binding service of process. The motion was denied to which ruling the defendant preserved its exception. After appropriate proceedings, final judgment was entered for plaintiff.
The defendant appeals, presenting the single question of the sufficiency of service of process to give the court jurisdiction over the person of the defendant.
Francis R. Stark, of New York City, and Alfred S. Barnard, of Asheville, for appellant.
Martin & Martin, of Asheville, for appellee.
The plaintiff is a nonresident; the defendant, a foreign corporation, having property and doing business in this state; the cause of action, transitory, disconnected with any corporate action of the defendant in this jurisdiction, but not contrary to the public policy of the state. The suit arises out of alleged transactions in the District of Columbia.
Is service of summons on a local agent of the defendant, as provided by C. S. § 483, sufficient to bring the defendant corporation into court in the instant case so as to give the court jurisdiction over the person of the defendant? The answer is, Yes.
It is provided by the statute in question that, in actions against corporations, service of summons may be had by delivering copy thereof to the president or other head of the corporation, secretary, treasurer, director, managing or local agent, and in this respect applies alike to all corporations, both domestic and foreign. Then follows a proviso as to who shall be considered local agents within the meaning of the section, and the last clause establishes certain restrictive conditions as prerequisites to a proper service on foreign corporations, i. e., it is provided service on the officers or agents designated in the first clause can be made in respect to a foreign corporation only (1) when it has property, or (2) the cause of action arose or (3) the plaintiff resides, in this state. And then a fourth method is established: When service can be made personally within the state on the president, treasurer, or secretary. McDonald v. MacArthur Bros. Co., 154 N.C 122, 69 S.E. 832.
That the court has jurisdiction of the cause of action is conceded. Such was the direct holding in Ledford v. Western Union Tel. Co., 179 N.C. 63, 101 S.E. 533, and we are not asked to review this decision. Compare La. St. Rice Milling Co. v. Mente & Co., 173 Ga. 1, 159 S.E. 497. There a nonresident sued the present defendant in the superior court of Madison county on a transitory cause of action arising in Tennessee, and the jurisdiction of the court over the subject-matter of the action was upheld; but the question of sufficiency of service to give the court jurisdiction over the person of the defendant was not mooted.
Further, it is not controverted that, if the plaintiff were a resident of Buncombe county, Griffin v. S. A. L. Ry. (D. C.) 28 F. (2d) 998, or the cause of action had arisen in connection with the defendant's local business, Maverick Mills v. Davis (D. C.) 294 F. 404, the service would have been sufficient. Bryan v. Western Union Tel. Co., 133 N.C. 603, 45 S.E. 938; Whitehurst v. Kerr, 153 N.C. 76, 68 S.E. 913; St. Clair v. Cox, 106 U.S. 354, 1 S.Ct. 354, 27 L.Ed. 222. Nor is it presently denied that effective service might have been had upon an actual agent of the defendant, such as president, treasurer, or secretary. Jester v. Steam Packet Co., 131 N.C. 54, 42 S.E. 447; Cunningham v. So. Express Co., 67 N.C. 425; Bagdon v. P. & R. Coal & Iron Co., 217 N.Y. 432, 111 N.E. 1075, L. R. A. 1916F, 407, Ann. Cas. 1918A, 389; Annotation, 30 A. L. R. 255. Compare James-Dickinson Farm Mortg. Co. v. Harry, 273 U.S. 119, 47 S.Ct. 308, 71 L.Ed. 569; 12 R. C. L., 111.
The defendant's contention is that, if service on a local agent, in an action like the present, be held valid and binding on the defendant, then to this extent the statute offends, not only against the commerce clause of the Federal Constitution, Davis v. Farmers' Co-operative Co., 262 U.S. 312, 43 S.Ct. 556, 67 L.Ed. 996, but also against the due process clause of the Fourteenth Amendment, Simon v. So. Ry. Co., 236 U.S. 115, 35 S.Ct. 255, 59 L.Ed. 492.
The precise question here presented seems to be one of first impression in this jurisdiction, and we do not find any decision of the Supreme Court of the United States which exactly decides it. It is urged that the opinion in L. & N. R. Co. v. Chatters, 279 U.S. 320, 49 S.Ct. 329, 73 L.Ed. 711, contains expressions broad enough to cover it, but the case itself is not decisive of the point. Nor are the other federal cases, cited by defendant, determinative of the question: Davis v. Farmers' Co-operative Co., 262 U.S. 312, 43 S.Ct. 556, 67 L.Ed. 996; Atchison, Topeka & Santa Fe Ry. v. Wells, 265 U.S. 101, 44 S.Ct. 469, 68 L.Ed. 928; Michigan Central Ry. Co. v. Mix, 278 U.S. 492, 49 S.Ct. 207, 73 L.Ed. 470; Denver, etc., Ry. Co. v. Terte, 284 U.S. 284, 52 S.Ct. 152, 76 L.Ed. 295; Simon v. Southern Ry. Co., 236 U.S. 115, 35 S.Ct. 255, 59 L.Ed. 492; Old Wayne Life Ass'n v. McDonough, 204 U.S. 8, 27 S.Ct. 236, 51 L.Ed. 345.
The attitude of the court of final authority, as said by Mr. Chief Justice Taft in Mo. Pac. R. Co. v. Clarendon Boat Oar Co., 257 U.S. 533, 42 S.Ct. 210, 211, 66 L.Ed. 354, indicates "a leaning toward a construction (of statutes providing for service on foreign corporations), where possible, that would exclude from their operation causes of action not arising in the business done by them in the state." Robert Mitchell Furn. Co. v. Const. Co., 257 U.S. 213, 42 S.Ct. 84, 66 L.Ed. 201; Chipman v. Thomas B. Jeffrey Co., 251 U.S. 373, 40 S.Ct. 172, 64 L.Ed. 314.
The one circumstance which differentiates the present case from those cited and relied upon by the defendant is the concession or admission that the defendant has property and is doing business in the state of North Carolina, which means, as we understand it, in the absence of a showing to the contrary, that the defendant has property and is doing business in this jurisdiction in such manner and to such extent as to warrant the inference that it is present here, engaged in corporate transactions through local agents. L. & N. R. Co. v. Chatters, supra.
A corporation is not always present where its officers are, but it is present in any place where its officers or agents transact business in its behalf under authority conferred upon them by the corporation. Qui facit per alium facit per se. Green v. C., B. & Q. Ry. Co., 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916; Lafayette Ins. Co. v. French, 18 How. 404, 15 L.Ed. 451; 12 R. C. L. 108.
The presence of a corporation within a state, necessary to the service of process, is shown when it appears that the corporation is there engaged in transactions and carrying on its corporate business in such way as to manifest its presence within the state. International Harvester Co. v. Kentucky, 234 U.S. 579, 34 S.Ct. 944, 58 L.Ed. 1479; Lunceford v. Accident Association, 190 N.C. 314, 129 S.E. 805; Busch v. L. & N. Ry. Co., 322 Mo. 469, 17 S.W.2d 337, certiorari denied, 280 U.S. 569, 50 S.Ct. 27, 74 L.Ed. 622; Alwood & Greene v. Buffalo Hardwood Lbr. Co., 152 Tenn. 544, 279 S.W. 795.
Speaking generally to the subject in Anderson v. Fidelity Co., 174 N.C. 417, 93 S.E. 948, 949, Hoke, J., delivering the opinion of the court, said:
"Authoritative cases on the subject are to the effect, further, that when a state, by its statutes, has established and provided a method of personal service of process on foreign corporations doing business therein, one that is reasonably calculated to give full notice to such companies of the pendency of suits against them, these provisions are to be regarded as conditions on which they are allowed to do business within the state, and when they afterwards come into the...
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