Menefee v. Riverside & Dan River Cotton Mills
| Decision Date | 20 December 1912 |
| Citation | 76 S.E. 741,161 N.C. 164 |
| Parties | MENEFEE v. RIVERSIDE & DAN RIVER COTTON MILLS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Alamance County; Daniels, Judge.
Action by Williamson Menefee against the Riverside & Dan River Cotton Mills. From a judgment for plaintiff, defendant appeals. Affirmed.
In a personal injury action against a master, where the complaint charged a casualty company's liability to plaintiff held, that it was not error for the court to permit the reading of plaintiff's complaint charging such company with liability, even though the action as to such company was subsequently dismissed on defendant's motion.
Morehead & Morehead, Sapp & Williams, and F. P. Hobgood, Jr., all of Greensboro, for appellant.
A. L Brooks and C. A. Hall, both of Greensboro, for appellee.
This is an action for damages for personal injuries. The defendant entered a special appearance and moved to strike out the return of the service of the summons for the reason that "the defendant is a foreign corporation not doing business in North Carolina, and has not been domesticated and has no agent upon whom service can be made, and the service is invalid and does not amount to due process of law." The motion was overruled, and the defendant excepted. The defendant then answered, and the cause was tried upon its merits. From the verdict and judgment, the defendant appealed.
The court found as a fact that the defendant is a Virginia corporation and did not have at the commencement of this action, and has not now, any office or place of business in this state, and has never engaged in business here; that it has never had a process agent in this state nor been domesticated here; that T. B. Fitzgerald, upon whom the summons was served, is a director of the defendant company and is a resident of this state, but he was not at the time of the service, nor at any time prior thereto, transacting the business of the company and held no office therein other than that of director; and that the defendant has no property in this state. Revisal 1905, § 440 (1), provides, as to service of summons: "If the action be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, director, managing or local agent thereof; *** but such service can be made in respect to a foreign corporation only when it has property within this state, or the cause of action arose therein, or when the plaintiff resides in the state, or when such service can be made within the state, personally upon the president, treasurer, or secretary thereof." The construction of this statute, which has been uniformly followed in Cunningham v. Express Co., 67 N.C. 426, and all cases since, is thus clearly stated by Hoke, J., in Whitehurst v. Kerr, 153 N.C. 76, 68 S.E. 913:
This construction has been held, also, in McDonald v. MacArthur, 154 N.C. 122, 69 S.E. 832; Higgs v. Sperry, 139 N.C. 299, 51 S.E. 1020; Greenleaf v. Bank, 133 N.C. 292, 45 S.E. 638, 63 L. R. A. 499, 98 Am. St. Rep. 709; Jester v. Steam Packet Co., 131 N.C. 54, 42 S.E. 447; Clinard v. White, 129 N.C. 250, 39 S.E. 960; Jones v. Insurance Co., 88 N.C. 499. The plaintiff was at the time of his injury and before and since a citizen and resident of North Carolina, and, relying upon the above decisions, brought his action in this state. Should he now begin an action in Virginia, he would probably be barred by the statute of limitations.
The court, in Cunningham v. Express Co., 67 N.C. 426, thus construed this last clause of the section: "The several cases respecting the foreign corporations, it will be observed, are put disjunctively, and we think that the meaning is that in either of the three cases service may be made by delivery of a copy of the summons to one of the officers named in the first clause of the section, among which is the managing agent." At that time the word "director" was not in the section, but it has been added since. It is only when neither of these three conditions exist that the service is required to be made "upon the president, secretary or treasurer thereof."
The defendant relies upon two cases in the United States Supreme Court. Goldey v. Morning News, 156 U.S. 518, 15 S.Ct. 559, 39 L.Ed. 517, and Conley v. Mathieson Alkali Works, 190 U.S. 406, 23 S.Ct. 728, 47 L.Ed. 1113. In the first case it was held that, in an action against a corporation neither incorporated nor doing business within a state, and which has no agent or property therein, service of summons upon its president, temporarily within the jurisdiction, cannot be recognized as valid by the courts of any other government. This does not affect the present case as the director upon whom service was made was resident here. The other case relied on holds: "Service in New York of summons upon a director of a foreign corporation who resides in New York is not sufficient to bring the corporation into court, where, at the time of service, the corporation was not doing business in the state of New York." This case gives no reason beyond saying: "The principle announced in Goldey v. Morning News covers the case at bar." This it did not do. This last case, however, cites with approval the following from Goldey v. Morning News: "Whatever effect a constructive service may be allowed in the courts of the same government, it cannot be recognized as valid by the courts of any other government." Under our decisions above quoted, and upon which the plaintiff relied...
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