Harrell v. Sears, Roebuck & Co.

• Decision Date: 16 January 1936
• Docket Number: 14210.
• Parties: HARRELL v. SEARS, ROEBUCK & CO.
• Court: South Carolina Supreme Court

183 S.E. 303

178 S.C. 482

HARRELL v. SEARS, ROEBUCK & CO.

No. 14210.

Supreme Court of South Carolina

January 16, 1936

Appeal from Common Pleas Circuit Court of Richland County; A. W Holman, County Judge.

Action in tort by Clyde Harrell against Sears, Roebuck & Co. From an order upholding service of summons, the defendant appeals.

Order reversed, and service of summons set aside.

Benet Shand & McGowan, of Columbia, for appellant.

Cooper & Maher and Chas. F. Cooper, all of Columbia, for respondent.

BAKER Justice.

On October 22, 1934, respondent undertook to commence his action in tort against Sears, Roebuck & Co.; the second paragraph of the complaint being as follows: "2. That the defendant is a large and very wealthy firm or corporation organized and existing under and by virtue of the laws of one of the states of the United States, and said defendant owns and operates thousands of chain stores throughout this country and elsewhere and is worth many millions of dollars that one of the aforesaid chain stores is located in Richland County, South Carolina, and said defendant carries on business in the City of Columbia in the said county and State; and that another one of the aforesaid chain stores is owned and operated by said defendant in the City of Atlanta Georgia."

The wrong complained of is alleged to have been committed by the Atlanta, Ga., branch store of Sears, Roebuck & Co., its agent, servant, and employee, and in Atlanta, Ga.

The summons and complaint in the action were served on P.J. Aylward, manager of the Sears, Roebuck & Co. store, located in Columbia, S. C.

In due time, appellant appeared for the special purpose of objecting to the jurisdiction of the court, and to set aside the attempted service of the summons and complaint on the ground that there was no legal connection whatever between the Atlanta store and the Columbia store, and consequently neither P.J. Aylward nor Sears, Roebuck & Co., Columbia, S. C., was an agent of Sears, Roebuck & Co. of Atlanta, Ga.

Hon. A. W. Holman, judge of the Richland county court, overruled appellant's motion and held in effect that service upon P.J. Aylward, manager of the Sears, Roebuck & Co's. store, located in Columbia, S. C., was a good service.

The respondent, by his argument, makes the point that, the determination of the issues in this case by the county judge being a finding of fact, such determination is not reviewable by this court if there is any evidence to sustain the findings.

Now we are cognizant that it is a well-settled precept in this state that the determination of issues of law and fact by the lower court in law cases is not reviewable by this court, unless such findings are absolutely unsupported by the evidence. However, it is also well established by the former decisions of this court that, if such conclusions are not supported by the evidence or clearly influenced or controlled by error of law, this court has the power to review such findings.

In the case of State v. W. T. Rawleigh Co., 172 S.C. 415, 174 S.E. 385, 393, Mr. Justice Stabler, as the voice of this court, said: "The point is made by the respondent that the result of the determination of the issues by the circuit judge being a finding of fact, is not subject to review by this court in a law case, unless wholly unsupported by evidence. The position is sustained by our decisions. In Lipe v. Carolina, Clinchfield & Ohio Railway Company, 123 S.C. 515, 116 S.E. 101, 30 A.L.R. 248, the court held as follows: "A conclusion as to either of the points indicated (similar to the questions presented here) necessarily involves the determination of a question of mixed law and fact, but the result of such determination by the circuit judge is essentially a finding of fact which this court has no power to review, unless wholly unsupported by evidence or manifestly influenced or controlled by error of law.' Citing cases. See, also, Bass v. American Products Export & Import Corporation, 124 S.C. 346, 117 S.E. 594, 30 A.L.R. 168, Singletary v. Humphrey-Coker Seed Company, 145 S.C. 539, 143 S.E. 269, and State v. Connecticut General Life Insurance Company, 168 S.C. 516, 167 S.E. 833."

And in March v. Union Trust Co., 175 S.C. 291, 179 S.E. 34, 36, it is said: "It is the settled rule of this court that, if the circuit court finds, as matter of fact, that the foreign corporation is doing business in this state, and that the person served is the agent of the corporation sued, such finding is binding on this court, unless there is no evidence to support such finding. [Italics added.] The question then becomes one of law. Lipe v. Carolina, C. & O. R. Co., 123 S.C. 515, 522, 116 S.E. 101, 30 A.L.R. 248; Pollock v. Carolina Interstate B. & L. Ass'n, 48 S.C. 65, 73, 25 S.E. 977, 59 Am.St.Rep. 695; Bass v. American Products Exp. & Imp. Corp., 124 S.C. 346, 117 S.E. 594, 30 A.L.R. 168; Abbeville Elec. L. & P. Co. v. Western Elec. Supply Co., 61 S.C. 361, 39 S.E. 559, 55 L.R.A. 146, 85 Am. St. Rep. 890; Jenkins v. Penn Bridge Co., 73 S.C. 526, 528, 53 S.E. 991; McSwain v. Adams Grain & Provision Co., 93 S.C. 103, 76 S.E. 117, Ann.Cas. 1914D, 981."

We have carefully examined the evidence in the case at bar, which consists of several affidavits and the testimony of P.J. Aylward. The motion to set aside the service of the summons and complaint is based upon the pleadings and the submitted affidavits.

The affidavit of E. J. Pollock states that he is vice president of Sears, Roebuck & Co.; that the store in Columbia, S. C., is a corporation organized and doing business under the laws of the state of South Carolina, and P.J. Aylward is manager of said store; that the corporation never has at any time operated or had any legal affiliation whatever with a business operated in the city of Atlanta, Ga., under the name of Sears, Roebuck & Co.

The affidavit of E. H. Powell states that he is secretary and treasurer of Sears, Roebuck & Co., incorporated under the laws of New York; that the Sears, Roebuck & Co. store operated in Atlanta, Ga., has been and is now owned and operated by Sears, Roebuck & Co., a corporation existing under and by virtue of the laws of the state of New York; that P.J. Aylward is neither an agent nor an officer of Sears, Roebuck & Co., incorporated under the laws of the state of New York.

The affidavit of P.J. Aylward states that the Sears, Roebuck & Co. store in Columbia, S. C., is a corporation...