Freeman v. Keltner

• Decision Date: 06 July 1953
• Docket Number: No. 38970,38970
• Citation: 259 P.2d 228,175 Kan. 37
• Parties: FREEMAN v. KELTNER et al.
• Court: Kansas Supreme Court

Page 228

259 P.2d 228

175 Kan. 37

FREEMAN v. KELTNER et al.

No. 38970.

Supreme Court of Kansas.

July 6, 1953.

Syllabus by the Court.

1. The legislature attached some importance to the term 'managing agent' and employed it to distinguish such a person from an ordinary agent or mere employee.

2. 'It is difficult to formulate and apply a general rule as to what will constitute a person a managing agent, and it is necessary to determine each case on its particular facts. The later decisions are apparently more liberal in interpreting the term 'managing agent' than were the earlier ones.'

3. The test whether a person is a 'managing agent' of a corporation is not whether he is under the general direction of the corporation as all of its agents are subject to such direction.

4. In order for a person to be a 'managing agent' he must be in the exclusive and immediate control and management, at the place where the particular business or works entrusted to him is located, so as to enable him to exercise his own discretion and judgment in the premises.

5. 'Statutes which provide for service of process on foreign corporations should be liberally construed for the accomplishment of the purpose intended, namely, that of bringing such persons into court. They are permitted to enter the state by comity only, and in the methods of subjecting them to the jurisdiction of the courts they cannot insist upon a technical or strict construction in their favor.'

6. Where an agent of a foreign corporation served with process is directly connected with the corporate affairs, or is conducting some of the corporate business, so that through him the corporation is legally represented, the nature or the amount of business that he transacts in this state is not of great importance.

7. A finding of fact by a trial court is conclusive on appellate review when supported by evidence notwithstanding there is contrary evidence.

8. The various statutory methods for service on a foreign corporation are cumulative and a plaintiff may select any of them.

9. G.S.1949, 60-308 pertains to the commencement of actions and applies only to cases involving some statute of limitations.

10. The record in an action against a nonresident to recover a money judgment in which garnishment summons was served on an agent of a foreign corporation in Harvey county where he had resided approximately five and one half months, during which time he was the only representative of the garnishee in charge of the particular enterprise being carried on in Kansas, examined, considered and held: (a) The foregoing facts together with other evidence narrated in the opinion were sufficient to support the finding of the trial court the person served was the managing agent of the particular enterprise in Kansas; (b) no statute of limitations is involved; and (c) the trial court did not err in overruling the garnishee's motion to set aside the service of process.

Lyndon Gamelson and Edward Weil, both of Wichita, argued the cause, and W. E. Holmes and Donald I. Mitchell, both of Wichita, were with them on the briefs for appellant.

H. W. Goodwin, of Wichita, argued the cause, and Port Early, of Wichita, was with him on the briefs for appellee.

WEDELL, Justice.

This is an appeal by National Lead Company, a foreign corporation, garnishee defendant, from an order and judgment overruling its motion to quash the service of garnishment summons.

Appellee, J. D. Freeman, filed an action in the district court of Harvey county for a money judgment against the principal defendant, A. Lea Keltner, a nonresident of the state. The return of summons disclosed he was not found in Harvey county. Thereafter garnishment summons was issued to be served on appellant. The sheriff's return shows the president, chairman of the board of directors, trustees or other chief officers of appellant could not be found in Harvey county and the summons was served on H. P. Horne, managing agent and employee of appellant.

After that service appellee obtained service on the principal defendant by publication and in the same publication gave notice to him of the service of garnishment on appellant and advised if he (Keltner) did not answer by a stated date judgment would be rendered against him and also against appellant subjecting all debts due to him from appellant for the satisfaction of any judgment that might be obtained against him and for costs of the action. Neither the principal defendant nor appellant appeared by answer or otherwise. Thereafter a default judgment was first rendered against the principal defendant in rem. That journal entry further recites:

'And, after the rendition of such judgment against the defendant, the matter then comes on for the attention of the Court upon the oral motion of the plaintiff for judgment against the garnishees herein under the provisions of Section 60-947, G.S.1935, because of their failure, neglect and refusal to file an answer in garnishment or affidavit, as required by law.

'The plaintiff then introduced evidence in support of said motion and the Court Finds that the summons in garnishment in this matter was duly served upon H. P. Horne, Managing Agent and employee of the National Lead Company, as shown by the return of the sheriff upon the summons in garnishment but that the said garnishees have wholly failed, neglected and refused to file an answer in garnishment, an affidavit or other pleading in response to such garnishment summons.' (Italics supplied.)

About eight months later appellant appeared specially and moved to quash the service on it, contending the service was invalid. Appellant's first contention is H. P. Horne was not a 'managing agent' and the court obtained no jurisdiction over it or the subject matter. To its motion were attached supporting affidavits. Appellant also introduced oral testimony and appellee introduced evidence in opposition. The court sustained the service and the appeal is from the judgment overruling the motion to quash it. There was no motion to set aside the judgment against appellant and there is no appeal from that judgment. No issue is raised by the parties touching the last matters and they will not be treated.

The venture or undertaking in which H. P. Horne, the person served with summons, was engaged for appellant in Kansas consisted of assembling, repairing and field testing a device used in oil fields and referred to by the parties as a 'Keltner Variable Stroke Pump Unit.' Horne was the only representative of appellant in Kansas on that undertaking and lived in Newton, Harvey county, while so engaged from September 1, 1948, to February 11, 1949, a period of about five and one half months.

Four supporting affidavits were attached to appellant's motion. One from the secretary of state disclosed Harry W. Colmery was appellant's resident agent in Kansas and his address was National Bank of Topeka Building, Topeka. The affidavit of the resident agent stated no statutory service of process of garnishment summons had been made on him.

Another supporting affidavit was that of H. H. Farnham, which was in part as follows:

'That I am employed by the Baroid Sales Division, National Lead Company, a New Jersey Corporation; that I am Assistant to the General Manager.

'That the home office of said Corporation is at 830 Docummun Street, Los Angeles 12, California, and a District Office is located at Houston, Texas, where I make my headquarters. That my duties are to supervise the distribution of the Company's products in that geographical area. That I am the immediate superior of Mr. D. D. Powers, who was responsible for the assembly and testing of the Keltner pump unit.

'That the Company was authorized to do business in Kansas on February 16, 1937, and is still so authorized. That the principal business in Kansas of the National Lead Company is the sale of oil well drilling mud additives. Sales of these additives are made principally through oil well supply houses. District offices, such as the office at Houston, Texas, supervise the distribution of these products in the adjacent geographical area. In addition to the drilling mud additives the Company does sell a few mechanical devices used in oil well drilling activities. There include a Pulsation Dampener for oil rig mud pumps and a Pipe Wiper.

'That the Company employs men familiar with drilling mud and its use in oil field drilling operations. These men are designated 'Drilling Mud Service Engineers', their duties are to give advice to oil field drillers in the use of mud, to aid in the mixing of mud and to create good will and thereby promote further sales.

'That Mr. H. P. Horne was employed as such Drilling Mud Service Engineer, working in the vicinity of Houston, Texas prior to September 1, 1948. Mr. Horne was familiar with oil field machinery and devices, he was adept at working with machinery and skilled in mechanics. For that reason, on September 1, 1948, I directed him, through Mr. Powers, to go to Newton, Kansas for the purpose of assembling, repairing and fieldtesting a Keltner Pumping Unit.

'That the National Lead Company entered into a contract on February 1, 1948 with Mr. A. Lea Keltner of Phoenix, Arizona, under which the Company was licensed to develop, manufacture and sell the pumping unit which Mr. Keltner had been working on and which was referred to as a Keltner Variable Stroke Pump Unit. The contract with Keltner included the purchase of some unassembled parts stored in the R & M Machine Shop at 119 East Third, Newton, Kansas, and a partially assembled experimental pump unit. The R & M Machine Shop was an independent establishment, which was employed to do blacksmith and machine work. I put D. D. Powers in charge of and made him responsible for the testing and improving of these devices. Mr. Powers and Mr. Horne worked on the assembly of one unit from the parts at Newton, Kansas, which unit was placed upon a well on the Ralph Wixsom...