Farmer v. Ferris
| Decision Date | 11 December 1963 |
| Docket Number | No. 162,162 |
| Citation | 133 S.E.2d 492,260 N.C. 619 |
| Parties | Barbara Jean FARMER, Minor, by her Next Friend, W. H. Farmer, Sr. v. Nelson FERRIS, Ruth Ferris, Carl D. Ferris and King Amusement Company, Inc. |
| Court | North Carolina Supreme Court |
Carter, Murchison, Fox & Newton, by James C. Fox, Wilmington, for King Amusement Co., Inc., defendant appellant.
Aaron Goldberg, Wilmington, for plaintiff appellee.
James, James & Crossley, by John F. Crossley, Wilmington, for Nelson Ferris, Ruth Ferris and Carl D. Ferris, defendant appellees.
The trial judge heard the motions upon thirteen stipulations by the parties, and upon evidence, made elaborate findings of fact and conclusions of law, and rendered an order as set forth above. It appears from the record that the individual defendants as partners operate an amusement business at Carolina Beach, North Carolina, consisting of the operation of mechanical swings and rides.
This is a summary of the judge's crucial findings of fact:
The King Amusement Company, Inc., of Mt. Clemens, Michigan, is a foreign corporation, which has never been domesticated in North Carolina, has never been authorized to do business in this State, and has never appointed an agent for service of process upon it in this State. This action was instituted 26 April 1962, and summons was issued and served upon the Secretary of State of North Carolina. The individual defendants duly filed an answer to the complaint, in which they alleged a cross action against King Amusement Company based upon averments of primary negligence arising out of the breach of implied and express warranties, which was also served upon the Secretary of State. (This appears in the stipulations by the parties and not in the order: An order was entered by the court making King Amusement Company a party defendant to the cross action filed against it by the individual defendants, and a copy of this order, a summons, a copy of the answer and cross action of the individual defendants, and a copy of the original summons and of the complaint were served upon the Secretary of State and sent by him by registered mail to King Amusement Company.)
For some years prior to the institution of this action, King Amusement Company has sent through the mails three or four times a year to amusement park operators in North Carolina mimeographed lists of amusement rides and amusement park devices for sale, both new and used with the prices listed thereon, thereby soliciting orders. During the same period it has advertised in BILLBOARD, a magazine with a general circulation in the United States and in North Carolina.
From 24 March 1958 through 26 April 1962, the date of the institution of this action, King Amusement Company, as a result of such advertising, sold 27 shipments of goods to various customers in North Carolina. The purchases were made by mail or telephone call. Since that time sales and shipments to people in North Carolina have continued. There were sales and shipments prior to 1958. The sales prices of these various shipments have ranged from a low of $2 to a high of $12,000. The prices of several shipments were in excess of $1,000 a shipment. These various shipments were by parcel post, air and railway express, railway freight, and by King Amusement Company using its own truck driver and representative. King Amusement Company delivered an amusement ride on 20 July 1953. It delivered on 17 December 1959 the 'Merry Mixer' here. Since the institution of this action, it, by its representative David Hartway, has delivered three amusement rides to Atlantic Beach, North Carolina.
Defendant Carl Ferris saw at Carolina Beach an advertisement of King Amusement Company in which the 'Merry Mixer' here was offered for sale. Whereupon, he talked by telephone with W. O. King, president of King Amusement Company. During the conversation King, acting for King Amusement Company, offered to sell the 'Merry Mixer' for a price of $12,000, to be delivered at Carolina Beach, North Carolina. Carl Ferris accepted the offer. In December 1959 Carl Hammond, a truck driver of King Amusement Company, delivered the 'Merry Mixer' to the individual defendants at Carolina Beach, North Carolina, and the individual defendants Carl D. Ferris and Nelson L. Ferris executed a conditional sales contract for the 'Merry Mixer,' which was sent back to King Amusement Company in Michigan and is recorded in New Hanover County, North Carolina. This was the 'Merry Mixer' which collapsed on 20 June 1960, thereby injuring plaintiff.
King Amusement Company was prior to 22 December 1959, and now is, one of the largest concerns selling and delivering new and used rides in North Carolina. On and before 5 October 1959 there were King Amusement Company designed and built rides in North Carolina as follows: one or more at White Lake, one or more at Carolina Beach, two or more just outside Monroe, one or more near Asheville, and one or more near Boone. Further, there were and are other rides in North Carolina not manufactured by King Amusement Company, but rebuilt by it and sold and delivered by it in North Carolina.
At the commencement of the present action, the sole property owned by King Amusement Company in North Carolina, or in which it had an interest, consisted of indebtedness due from its North Carolina customers and conditional sales contracts executed by its North Carolina customers like the one here.
Based upon his findings of fact, the trial judge made the following conclusions of law:
'1. Service of process was had upon the defendant King Amusement Company, Inc., in this case in full compliance with the procedural requirements of G.S. 55-146 as authorized by G.S. 55-145, both as to service of the original action and also as to the cross action by the defendants Ferris.
'2. That the cause of action stated in the complaint against King Amusement Company, Inc. arises out of a transaction which falls within the terms of G.S. 55-145(a) (2), (3) and (4) and accordingly the service which was had in this case under G.S. 55-146 brought the defendant King Amusement Company within the jurisdiction of this Court for purposes of an in personam judgment.
'3. The cause of action stated in the cross action against King Amusement Company, Inc. arises out of a transaction which falls within the terms of G.S. 55-145(a) (1) as well as (2), (3) and (4) and the service under G.S. 55-146 brought the defendant King Amusement Company, Inc. within the jurisdiction of this Court for purposes of an in personam judgment under such cross action.
'4. The activities which the King Amusement Company, Inc. has carried on in this State have been throughout the period in question regular, systematic and continuous and have resulted in a substantial volume of interstate business between said Company and persons in this State.
Whereupon, the trial judge decreed that King Amusement Company's two motions to quash the service of summons and the complaint upon it, and to quash the service of the cross action by the individual defendants upon it and of the order making it a defendant, and to dismiss the action and the cross action against it be overruled, and that it be allowed thirty days from the date of the order within which to answer or otherwise plead to the complaint and to the individual defendants' cross action.
Appellant assigns as error all the findings of fact, except the finding of fact that it is a foreign corporation, which has never been domesticated in North Carolina, has never been authorized to do business in this State, and has never appointed an agent for service of process upon it in this State.
The trial judge heard appellant's two motions upon thirteen stipulations by the parties, and upon affidavits offered by the parties. A stipulation by the parties is a judicial admission, and binding upon them. Moore v. Humphrey, 247 N.C. 423, 101 S.E. 2d 460. The challenged findings of fact find support in the stipulations entered into by the parties and in the evidence offered by the parties, except as follows: The trial judge found as a fact that King Amusement Company 'warranted the ride to be in good condition when delivered.' The affidavit of Carl D. Ferris is to the effect he, at Carolina Beach, North Carolina, saw an advertisement of King Amusement Company in which it advertised a 'Merry Mixer' for sale, that he called it by telephone and talked to W. O. King, its president, in Michigan, that they discussed price and terms and delivery, and W. O. King made him a price including delivery to Carolina Beach, North Carolina, and he accepted his offer; that King Amusement Company mailed him the contract of sale and a conditional sales contract, which he and his son signed and...
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