Lipe v. Carolina, C. & O. Ry. Co.

• Decision Date: 26 February 1923
• Docket Number: 11145.
• Parties: LIPE v. CAROLINA, C. & O. RY. CO.
• Court: South Carolina Supreme Court

116 S.E. 101

123 S.C. 515

LIPE v. CAROLINA, C. & O. RY. CO.

No. 11145.

Supreme Court of South Carolina

February 26, 1923

Appeal from Common Pleas Circuit Court of Richland County; W. H Townsend, Judge.

Action by Carrie E. Lipe, as administratrix of the estate of William F. Lipe, deceased, against the Carolina, Clinchfield & Ohio Railway Company. From an order refusing to vacate the service of summons, defendant appeals. Affirmed.

Lyles & Lyles, of Columbia, for appellant.

Tompkins Barnett & McDonald, of Columbia, for respondent.

MARION J.

The plaintiff is a resident of this state, the defendant a Virginia corporation, and the cause of action a tort. The action is for damages on account of the alleged wrongful death of the plaintiff's intestate, who was fatally injured in the state of North Carolina while in the employ of the defendant as a conductor. The summons and complaint were served on certain persons at Spartanburg, S C., who, as plaintiff contends, were then agents of the defendant in this state. The defendant entered a special appearance and moved to vacate the service. From an order of Hon. W. H. Townsend, circuit judge, refusing that motion, the defendant appeals. The notice, embodying the grounds of said motion, and the order of the circuit judge will be reported.

Error is imputed to the circuit court (exceptions 4 to 7 inclusive) in finding and holding (1) that the defendant was doing business in South Carolina, (2) that the persons served with process were agents of the defendant, and (3) that the plaintiff was a resident of the state within the meaning of section 461 of the Code of Civil Procedure of 1912. A conclusion as to either of the points indicated 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. Hester v. Raisin Fertilizer Co., 33 S.C. 609, 12 S.E. 563; Pollock v. Ass'n, 48 S.C. 65, 25 S.E 977, 59 Am. St. Rep. 695; Jenkins v. Penn. Bridge Co., 73 S.C. 526, 53 S.E. 991; McSwain v. Grain & Provision Co., 93 S.C. 103, 76 S.E. 117, Ann. Cas. 1914B, 981. We are of the opinion that the findings of the circuit court that defendant was "doing business" within the state (St. Louis S.W. R. Co. v. Alexander, 227 U.S. 218, 33 S.Ct. 245, 57 L.Ed. 486, Ann. Cas. 1915B, 77; Reynolds v. Mo., K. & T. Ry., 224 Mass. 379, 113 N.E. 413, 255 U.S. 565, 41 S.Ct. 446, 65 L.Ed. 788; St. Louis & S. F. Ry. Co. v . Sizemore, 53 Tex.Civ.App. 491, 116 S.W. 403; Wichita Falls Ry. Co. v. Puckett, 53 Okl. 463, 157 P. 112; McNeill v. Electric Storage Battery Co., 109 S.C. 326, 96 S.E. 134; and see generally Blue Ridge Power Co. v. So. Ry. Co. et al., 115 S.E. 306, recently filed); that the persons served were agents of the defendant ( Carter v. So. Ry. Co., 100 S.C. 414, 84 S.E. 999; Calhoun Mills v. Black Diamond Collieries, 112 S.C. 332, 99 S.E. 821; Jenkins v. Penn. Bridge Co., supra); and that the plaintiff was a resident of the state (Pollock v. Ass'n, supra; Howard v. Nashville, etc., Ry. Co., 133 Tenn. 19, 179 S.W. 380, L. R. A. 1916B, 794, Ann. Cas. 1917A, 844)--cannot be said to be wholly without evidence to support them or manifestly attributable to an erroneous conception or application of the law. The assignments of error as to the foregoing findings must therefore be overruled.

But, even if it be conceded that the defendant was doing business within the state and that the persons served with process were its agents, appellant contends that their agency must be limited to actions which arise out of the business transacted in South Carolina. It insists that, since the defendant was not authorized or licensed to do business in South Carolina and had not consented to subject itself to the jurisdiction of the state courts by complying with the local laws, any other conclusion would do violence to its rights under the federal constitution. The plaintiff's cause of action owes its origin to business transacted in North Carolina and has no relation to any business transacted in South Carolina, and for that reason appellant says the service was invalid.

For that proposition, it is forcefully argued, two decisions of the Supreme Court of the United States furnish conclusive authority. They are Old Wayne Mut. Life Ass'n v. McDonough, 204 U.S. 8, 27 S.Ct. 236, 51 L.Ed. 345, and Simon v. Southern R. Co., 236 U.S. 115, 35 S.Ct. 255, 59 L.Ed. 492. The scope and effect of these decisions cannot be more clearly stated than in the language of Judge Cardoza, in the case of Bagdon v. Philadelphia & R. Coal & I. Co., 217 N.Y. 432, 111 N.E. 1075, L. R. A. 1916F, 407, Ann. Cas. 1918A, 389:

"In Old Wayne Mut. Life Asso. v. McDonough, supra, an action was brought in Pennsylvania against an insurance company organized in Indiana. The laws of Pennsylvania provide that no foreign insurance company shall do business in that state until it has filed a stipulation that any legal process affecting the company may be served either on a designated agent or on the insurance commissioner, with the same effect as if served personally on the company. The Old Wayne Life Association did business in Pennsylvania; but it did not file the stipulation. A creditor sued it on a claim having no relation to its Pennsylvania business, and served the insurance commissioner. This service was held invalid. The court said that, if the cause of action had relation to business transacted in Pennsylvania, the insurance company would be estopped to take advantage of its failure to file the stipulation required by the statute. Even though it had not consented to be bound by service on a public officer, it would in such a situation be charged with the same consequences as if it had consented. But the court refused to extend the estoppel to a case where the transaction of business in Pennsylvania had no relation to the cause of action. In such a case it held that the company had the right to show the truth, and the truth was that it had not given its consent. 'While the highest considerations of public policy demand that an insurance corporation, entering a state in defiance of a statute which lawfully prescribes the terms upon which it may exert its powers there, should be held to have assented to such terms as to business there transacted by it, it would be going very far to imply, and we do not imply, such assent as to business transacted in another state, although citizens of the former state may be interested in such business.' 204 U.S. at page 22. Old Wayne Mut. Life Asso. v. McDonough was followed in Simon v. Southern R. Co. [ supra], which brought up the same question. The plaintiff sued the Southern Railway Company, a Virginia corporation in the courts of Louisiana. That state makes it the duty of every foreign corporation doing business within its borders to file a written declaration setting forth the places in the state where it is doing business, and the name of an agent upon whom process may be served. If business is done without compliance with that condition, process may be served upon the Secretary of State. The Southern Railway Company did not file the required declaration. There was some question whether it did business in Louisiana at all. At all events, the cause of action had no relation to that business. It grew out of a collision in the state of Alabama. The court held that service on the Secretary of State of Louisiana was not service on the railway company. It expressly refused to pass upon the effect of a voluntary appointment of an agent for the service of process. 'Without discussing the right to sue on a transitory cause of action and serve the same on an agent voluntarily appointed by the foreign corporation, we put the decision here on the special fact, relied on in the court below, that in this case the cause of action arose within the state of Alabama, and the suit therefor, in the Louisiana court, was served on an agent designated by a Louisiana statute.' 236 U.S. at p. 130." (Italics added.)

It thus appears that the precise point decided was that, where a foreign corporation does business in a state without designating an agent upon whom process against it may be served in that state, in conformity with the requirements of a statute providing that, in the event of failure to appoint such agent, process may be served upon a designated public official of the state, jurisdiction of the person of such foreign corporation may not be acquired by service of process upon the public official thus designated, in a case where the cause of action did not arise in the state. For the purposes of this discussion it may be conceded that those decisions of the tribunal, invested with final jurisdiction in controversies between citizens of different states, fully establish the rule that the compulsory assent to jurisdiction implied from service of process upon a substitute or constructive agent designated by statute, and imputed to the corporation, under the doctrine of estoppel, from thus going into business in a state without complying with its statutory requirements as to the appointment of a process agent, is limited to causes of action which owe their origin to the...