Lee v. Memphis Pub. Co.

• Decision Date: 14 June 1943
• Docket Number: 35376.
• Citation: 195 Miss. 264,14 So.2d 351
• Court: Mississippi Supreme Court
• Parties: LEE v. MEMPHIS PUB. CO.

14 So.2d 351

195 Miss. 264

LEE v. MEMPHIS PUB. CO.

No. 35376.

Supreme Court of Mississippi

June 14, 1943

James Stone & Sons, of Oxford, and A.F. McKeigney, of Eupora for appellant.

Cowles Horton, of Grenada, and Fitzhugh, Murrah & Fitzhugh, of Memphis, for appellee.

McGEHEE Justice.

This suit is brought by the appellant, Ned Lee, a resident citizen of Webster County, Mississippi, against the appellee, Memphis Publishing Company, a Delaware corporation, publisher of the Commercial Appeal, a daily newspaper, printed and published at Memphis, Tennessee, in an action for damages growing out of the publication and circulation of an alleged defamatory and libelous article sent to it for publication of and concerning him. The suit was instituted in the Circuit Court of Webster County and process was attempted to be had upon the said foreign corporation by serving the same upon two local citizens, Bays Land and William Dunlap, and also upon Walker Wood, Secretary of State at Jackson, Mississippi, pursuant to Chapter 246, Laws of Mississippi of 1940, which provides, among other things, that all civil actions for recovery of damages brought against a nonresident of the State of Mississippi may be commenced in any county in which the action accrued, and that service of process may be had in any county of the State where the defendant, or any of them, may be found. Neither of the two local residents in Webster County were charged with wrong doing, nor made defendant, and it appears from the proof introduced under a plea to the jurisdiction of the court that the said Bays Land was an independent contractor who operated a truck or trucks in bringing the newspapers from Memphis into Mississippi for delivery to one J. F. Wofford, a local distributor, who purchased at the wholesale price such a number of the copies of the Commercial Appeal as he deemed necessary to meet his requirements as such distributor, and who was obligated to pay such wholesale price therefor and to resell them on his own account to news boys, news stands and individual purchasers in the Town of Eupora in that county using every reasonable effort to increase the number of retail purchasers of the paper in said town; that the said William Dunlap was employed by the defendant at a salary of $35 per week as a contact man to ascertain and recommend suitable persons to become local distributors of the paper subject to the approval of the Memphis Office in Tennessee, accept applications in that behalf and performance bonds from such persons for approval at the office aforesaid, in the territory east of the I. C. R. R. Company and comprising more than one-half of the State of Mississippi, and he testified that as such employee he was the supervisor of such local distributors, but without authority or discretion to make any contract or to otherwise obligate his said employer in the premises; and it was also shown that the defendant maintains a news office at the Edwards Hotel at Jackson, Mississippi, on the door of which a sign is printed, reading: "The Commercial Appeal-Mississippi Office-News-Circulation-Advertising", where Kenneth Toler is in charge as a Reporter for the Commercial Appeal, who prepares and sends to the Memphis Office news articles for acceptance or rejection there, and whose office rent and salary are paid by the defendant, but who was shown not to be engaged in selling newspapers, soliciting advertisements therefor or vested with any authority to act for the defendant in the negotiation of any contract or other business transaction. That such advertising carried by the defendant in its newspaper from Mississippi was wholly unsolicited items sent in by individuals who desired such service.

The said Chapter 246, Laws of 1940, supra, provides that: "Any non-resident, * * * or any corporation not qualified under the constitution and laws of this state as to doing business herein, who shall do any business or perform any character of work or service in this state, shall, by the doing of such business or the performing of such work or services, be deemed to have appointed the secretary of state, or his successor, or successors in office, to be the true and lawful attorney or agent of such non-resident, upon whom process may be served in any action, accrued or accruing from the doing of such business or the performing of such work or service, or as an incident thereto by any such non-resident, or his, their or its agent, servant or employee. The doing of such business or the engaging in any such work or service in this state shall be deemed a signification of such non-resident's agreement, and equivalent to an appointment by, such nonresident of the secretary of state of the state of Mississippi, or his successor or successors in office, to be the true and lawful attorney or agent of such non-resident upon whom may be served all lawful process in any action or proceeding against any such non-resident for any cause of action which has accrued or may accrue in this state." Section 1.

The defendant entered its appearance especially for the purpose of moving to dismiss the suit for want of jurisdiction, which action on its part did not operate as a personal appearance so as to subject it to the territorial jurisdiction of the court, as was held in the case of First National Bank of St. Louis v. Mississippi Cottonseed Products Company, 171 Miss. 282, 157 So. 349. By its plea, the defendant raised (1) the question of want of territorial jurisdiction of the courts of Mississippi on the ground that it was not doing business in the State, and (2) the want of venue of the suit in Webster County, in the event that it should be held that service of process upon the Secretary of State under the foregoing statute could render it subject to suit in this State. The trial court was of the opinion that the defendant was doing business in Mississippi but that the venue of the suit is in Hinds County where the Secretary of State resides, and in the absence of a motion by the plaintiff to transfer the suit the same was dismissed, and the plaintiff appeals.

It is urged by the appellant that the only question to be considered by this Court is that of venue. That the defendant has not filed a cross-appeal from the decision of the trial court in holding that the said Memphis Publishing Company was doing business in this State, and that said defendant is therefore bound by the judgment of the trial court on that issue. We are unable to agree with this contention for the reason that if the judgment of dismissal was correct on any ground raised by the plea, the same will be affirmed; Yazoo & M. V. R. Company v. Adams, 81 Miss. 90, 32 So. 937; Carr et al. v. Miller, 162 Miss. 760, 139 So. 851; 4 C.J. 662; 5 C.J.S., Appeal and Error, § 1464, holding that the appellate court may base its affirmance or reversal on a different legal theory or on different grounds than that upon which it was decided by the trial court, provided the question was before such court under the pleadings when its judgment was rendered.

We therefore proceed to a decision of the question of whether or not the defendant is doing business in this State so as to be amenable to the process of its courts, since an adjudication of that issue in the negative will render unnecessary a consideration of any other question involved.

The general rule deducible from the decisions of the Supreme Court of the United States on this question is that to constitute a foreign corporation doing business in a particular jurisdiction, the business must be of such nature and character as to warrant the inference that the corporation has subjected itself to the local jurisdiction, and is by its duly authorized officers or agents present within the State where the service of process is attempted. Philadelphia, etc., R. Company v. McKibbin, 243 U.S. 264, 37 S.Ct. 280, 61 L.Ed. 710; St. Louis S.W. R. Company v. Alexander, 227 U.S. 218, 33 S.Ct. 245, 57 L.Ed. 486, Ann.Cas.1915B, 77; People's Tobacco Company v. American Tobacco Company, 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, Ann.Cas.1918C, 537; and Green v. Chicago, etc., R. Company, 205 U.S. 530, 27 S.Ct. 595, 596, 51 L.Ed. 916. In the case of Green v. Chicago, etc., R. Company, supra, where the railroad company's line extended from Chicago westward and where it maintained an office in Pennsylvania where a district freight and passenger agent and several other employees who solicited passenger and freight business were employed, it was held that while it was "obvious that the defendant was doing [in Pennsylvania] a considerable business of a certain kind" it was nothing more than that of solicitation and that the railroad company was not doing business in Pennsylvania in such sense as to render it amenable to the process of the courts in that state.

Our own Court held in the case of Item Company, Ltd., v. Shipp et al., 140 Miss. 699, 106 So. 437, that the Item Company Ltd., a publisher of a New Orleans newspaper, was not doing business in this State, so as to require the filing of a copy of its charter under Chapter 92, Laws of 1916, and wherein it was shown that the defendant Shipp, a local distributor of the newspaper at Hattiesburg, Mississippi, purchased from the Item Company, Ltd., such number of copies of the paper as he deemed necessary for his requirements as such local distributor and was obligated to pay for the papers whether he sold them or not, and when he sold them, whether he collected for them or not, and in which case the publishing company also had a traveling representative who visited the various towns in this State and solicited additional subscribers for the paper, turning the list over to the local distributors in each case, and occasionally made sales of...