Emsco Pavement Breaking Corp. v. City of Los Angeles
| Decision Date | 30 December 1959 |
| Citation | 176 Cal.App.2d 760,1 Cal.Rptr. 814 |
| Court | California Court of Appeals Court of Appeals |
| Parties | EMSCO PAVEMENT BREAKING CORP., dba Emsco Concrete Cutting Company of Los Angeles, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a municipal corporation, The Wilmington Transportation Company, a California corporation, Anders-Jahre & Company, a corporation, Defendants. Anders-Jahre & Company, a corporation, Respondent. Civ. 23988. |
McCutchen, Black, Harnagel & Greene (now, McCutchen, Black, Harnagel & Shea), Philip K. Verleger, Robert A. Fletcher, Bruce, I. Rauch, Los Angeles, for appellants.
Lillick, Geary, McHose, Roethke & Myers, William A. C. Roethke, Anthony Liebig, Los Angeles, for respondent.
This is an appeal from an order granting a motion to quash the service of summons and complaint upon respondent and defendant, Anders-Jahre and Company.
A resume of the facts is as follows:
In the latter part of 1957 appellant was engaged in the removal of the concrete piers of a certain bridge which was located across the entrance to the west basin of Los Angeles Harbor. On September 11 of that year, the vessel 'Janus,' owned by respondent, attempted to enter the west basin while tied to and assisted by the tug 'Long Beach.' The 'Long Beach' was owned and operated by defendant, Wilmington Transportation Company. At all times during the event in question, a compulsory pilot in the employment of defendant, City of Los Angeles, was on the bridge of the 'Janus' performing his duties. While both vessels were in the process of entering the west basin the tug 'Long Beach' struck one of the concrete piers of the bridge and caused the pier to topple and fall beneath the surface of the water. Appellant filed an action claiming damages resulting from the negligence and trespass on the part of defendants. The summons and complaint were served upon respondent Anders-Jahre and Company, by personal delivery to an officer of W. H. Wickersham and Company, Inc., a company which acted as agent for the owners of the 'Janus' during the time the ship was in Los Angeles Harbor. A motion to quash was filed on behalf of respondent on the grounds that at the time of such delivery respondent was not doing business in the State of California and that W. H. Wickersham and Company, Inc., was not, at the time of service, an agent, officer or manager of respondent and was not authorized to receive service of the summons and complaint. The Motion was granted upon the latter ground.
Subsequently, appellant obtained an order from a Superior Court Commissioner providing that service be made upon respondent by personal delivery of the summons and complaint to the Secretary of State. Service was effected in that fashion. A second motion to quash was filed and served on behalf of respondent on the grounds that respondent was not doing business in the State of California at the time of such service and that the service of process was improper and of no legal effect. This motion was based upon a memorandum of points and upon the affidavits of one Frithjof Bettum, a member of the board of directors of respondent and one Roy Blydenburgh, Secretary and General Manager of W. H. Wickersham and Company, Inc. Additional memoranda of points and authorities were filed by respondent and by appellant and reference was made by appellant to respondent's answers to appellant's interrogatories which had previously been filed in the action.
The facts relied upon by appellant to show that respondent was amenable to process in the State of California at the time service was effected are contained in the affidavits and in the answers to interrogatories referred to above. An examination of those affidavits and answers to interrogatories discloses among other things the following:
That respondent, Anders-Jahre and Company is a corporation existing under the laws of the Kingdom of Norway with its principal place of business in Sandefjord, Norway.
Respondent's business consists of the ownership and operation of steamships in domestic and foreign trade, including the 'Janus.' Four vessels owned by respondent, other than the 'Janus,' called at California ports from March 12, 1951, up to and including the date of the accident in question as well as some calls which were made subsequent to said accident. Over twenty calls were made by those vessels to California ports. Substantial quantities of cargo were discharged in California from the various vessels owned by respondent.
Interrogatories were propounded by the appellant to Andre-Jahre & Co., the first of which was: 'With respect to each of the visits of the vessels referred to in Paragrah 7 of the affidavit of Frithjof Bettum filed with the defendant's Motion to Quash Service of Summons, please state: the amounts of cargo discharged at Los Angeles or San Francisco on each of the occasions referred to in said Paragraph 7 by each of the vessels referred to in Paragraph 7.' The 'Answers to Interrogatories' set forth the following:
"(a)--Cargo discharged
------------------------------------------------------------------------
"Vessel Port Dates Amount of Cargo
-------------- ------------- -------------- -------------------------
M/s "Jakara" Los Angeles 2/21-2/23-55 333 cars
-"- San Francisco 2/24-2/25-55 253 cars--20 tractors
-"- Los Angeles 5/31-6/1-55 457 cars
-"- San Francisco 6/6-6/9-55 271 "
-"- -"- 10/15-10/17-55 745 "
-"- -"- 3/5-3/7-56 663 cars--115 tons
peatmoss
-"- Los Angeles 4/6-4/7-56 called for bunkers
-"- San Francisco 7/9-7/10-56 583 cars
-"- Los Angeles 8/14-56 called for bunkers
-"- San Francisco 11/7-11/8-56 485 cars
-"- Los Angeles 3/14-3/16-57 575 "
-"- San Francisco 7/11-7/13-57 568 "
-"- -"- 11/9-11/10-57 487 cars--201 cases
spare parts
-"- -"- 1/27-1/29-58 645 cars--184 cases
spare parts.
-"- San Pedro 2/8-58 called for bunkers
M/t "Kosmos V" Richmond 11/3-11/5-55 24.441 tons crude oil
-"- San Pedro 11/6-11/7-55 6.157 tons fuel oil
(loaded)
M/t "Janega" Martinez 6/2-6/4-58 15.560 tons motor spirit.
M/t "Jasmin" Richmond 3/12-3/17-51 14.641 tons crude.
-"- San Francisco 5/29-6/4-51 13.978 " fuel oil
(loaded).
-"- Richmond 1/17-1/21-52 14.410 tons crude oil.
-"- Los Angeles 1/22-1/24-52 loaded."
At all times while respondent's vessels were in California the crew members were in the employment and pay of respondent. Also, respondent hired, supervised and directed the master and crew of each vessel. Large quantities of fuel oil were purchased when respondent's vessels called at California ports. The crews of the various vessels were paid and permitted to go ashore in California by respondent. Respondent issued bills of lading covering various cargoes scheduled to be unloaded at California ports.
Various California companies were employed as agents to act on behalf of respondent's vessels. These companies included Kerr Steamship Company, Inc.; General Steamship Corporation; Williams; Diamond and Company; and W. H. Wickersham & Company, Inc. The latter was retained to act as agent in assisting the 'Janus' on the occasion of its call at Los Angeles Harbor in September of 1957.
According to his affidavit, Roy Blydenburgh is the secretary and general manager of W. H. Wickersham & Company, Inc., a corporation which acts as port agent in Los Angeles on behalf of several foreign and domestic shipowners. The duties of a port agent include arranging for the replenishing of provisions, water and fuel, the procurement of supplies and parts, the payment of docking, pilotage and stevedoring fees and other like tasks.
It appears from the record that some additional tasks were performed for respondent by W. H. Wickersham & Company, Inc., in overseeing or in some way assisting the completion of temporary repairs which were made on the 'Janus' in Los Angeles.
The trial court did not specify the ground for its Order granting Respondent's Motion to Quash. It is an established rule that:
(Emphasis added.) Griffith Co. v. San Diego College for Women, 45 Cal.2d 501, 507-508, 289 P.2d 476, 479, 47 A.L.R.2d 1349 and cases cited therein.
It is also true that when the evidences is not conflicting, the reviewing court is not bound by the findings based thereon. Cosper v. Smith & Wesson Arms Co., 53 Cal.2d 77, 346 P.2d 409. There is no dispute as to what activities actually occurred in California. The pivotal question is as to the legal consequences that necessarily flow...
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