Pan Am. World Airways, Inc. v. Local Readers Service, Inc.

• Decision Date: 10 October 1968
• Docket Number: No. 1,No. 20666,20666,1
• Citation: 240 N.E.2d 552,143 Ind.App. 370
• Parties: PAN AMERICAN WORLD AIRWAYS, INC., Appellant, v. LOCAL READERS SERVICE, INC., Appellee
• Court: Indiana Appellate Court

Page 552

240 N.E.2d 552

143 Ind.App. 370

PAN AMERICAN WORLD AIRWAYS, INC., Appellant, v. LOCAL READERS SERVICE, INC., Appellee.

No. 20666.

Appellate Court of Indiana, Division No. 1.

Oct. 10, 1968.

Shafer, Francis & Vincent, by Charles W. Vincent, Terre Haute, for appellant.

Dix, Dix, Patrick, Ratcliffe & Adamson, Terre Haute, for appellee.

CARSON, Chief Justice.

This appeal comes to us from the Clay Circuit Court. The action was instituted by appellant, Pan American World Airways, Incorporated, against appellee, Local Readers Service, Incorporated, for the recovery of sums alleged to be due as the result of credit card purchases of airline transportation. It is alleged that the credit cards were issued pursuant to a contract executed by appellee's agent, E. J. Moyers.

The pleadings consisted of appellant's amended complaint in five (5) paragraphs and appellee's amended answer in five (5) paragraphs pursuant to Rule 1--3 of the Rules of the Supreme Court of Indiana. Appellee, by amended answer, denied the allegations of appellant's complaint relating to execution of the contract; the indebtedness; and, particularly the alleged agency.

Appellee filed its motion for summary judgment pursuant to Acts of 1965, ch. 90, § 1; being Burns' Ann.Stats., section 2--2524. Said motion was based upon the premise that the signatory to the contract in question, E. J. Moyers, was not the agent of Local Readers Service, Incorporated, and had no actual or apparent authority to commit its credit by the execution of a contract; that there was no genuine issue on the allegations of agency; and, that appellee was entitled to judgment as a matter of law. Appellant did not file counter-affidavits.

Subsequent to oral argument upon appellee's motion for summary judgment, the court sustained the motion and rendered judgment as follows:

'It is, therefore, now ordered, adjudged and decreed that the motion of the defendant, Local Readers Service, Inc., be and the same is sustained and granted, and that judgment be and the same is hereby rendered in favor of the said defendant on plaintiff's complaint herein, with costs to be assessed and taxed against the plaintiff herein in the sum of $_ _.'

Appellant's sole assignment of error reads:

'1. The Court erred in sustaining the Appellee's Motion for Summary Judgment.'

Appellee's motion for summary judgment was supported by answers to written interrogatories propounded by appellee, to William J. Leippert, Credit and Collection Supervisor of Pan American World Airways, Incorporated. Question and answer No. 16 of said interrogatories, read as follows:

'QUESTION NO. 16. State in detail what documents and/or written oral representations were relied upon by Pan American World Airways, Inc., in issuing the air travel card to E. J. Moyers in the name of Local Readers Service, Inc.

'ANSWER At the time of the application for air travel cards executed by E. J. Moyers, he represented himself to be Managing Director of Local Readers Service, Inc., and in the request he listed W. A. Jones as Accountant and Office Manager for Local Readers Service, Inc., who were to be the card holders for the subscribers Local Readers Service, Inc.

'By inquiry with the Registrar of Companies in London, England, it was found that under the Companies Act of 1948, Local Readers Service, Inc., was duly authorized to transact business in the United Kingdom on April 6, 1960; that Elwood J. Moyers was authorized to accept on behalf of the Company, service of process and other notices required to be served on Local Readers Service, Inc., an American Corporation; that among the documents delivered to the Registrar of Companies in obtaining admission to transact business in the United Kingdom were photo copy of Certificate of Incorporation of Local Readers Service parent Company, Local Readers Service, Inc., issued by the State of Illinois on February 11, 1959; Articles of Incorporation for Local Readers Service, Inc., filed with the Secretary of State in the State of Illinois on February 11, 1959, together with certified copies of a special meeting of shareholders November 24, 1959, and a special meeting of directors on the same date. Pan American World Airways, Inc., also caused an investigation to be made by Dun & Bradstreet, Ltd., which report was dated August 23, 1960 and although the contents of which are confidential, said report verified the information obtained from other sources with respect to the authority of Mr Moyers, and the relationship of his operation in the United Kingdom to the parent Company, Local Readers Service, Inc.'

Thereupon, pursuant to Acts of 1881, (Spec. Session), ch. 38, § 353 and Acts of 1881, (Spec. Session), ch. 38, § 354; being Burns' Ann.Stats., §§ 2--1644, 2--1645, resp.; appellee filed a motion to produce those papers and documents which appellant stated as being relied upon in issuing an air travel card to E. J. Moyers.

These documents and papers, as well as the answers to the written interrogatories and oral deposition of Mr. Leippert, were filed in support of appellee's motion for summary judgment.

From a review of the documents, stated, by Mr. Leippert, as being relied upon in ascertaining the authority of E. J. Moyers to bind the credit of Local Readers Service, Inc., we find the following:

1. Universal Air Travel Plan Subscribers Contract.

This document contains the underlying contract being sued upon, herein. The contract signifies the subscriber as 'Local Readers Service, Inc.' and was executed on August 17, 1960, by Mr. Moyers, as 'E. J. Moyers Managing Director'. The contract was signed for Pan American Airways, Inc. by the Passenger Sales Manager on September 14, 1960.

2. The Dun and Bradstreet Report.

This report was issued by Dun and Bradstreet on August 23, 1960, at the request of Pan American Airways, Inc. That report, in pertinent portion, stated:

'Peter Yates 16, John Dalton Street, Manchester, 2 and Elwood J. Moyers 18, Wilbraham Road, Manchester 21, are authorised (sic) to accept service and notices. Moyers acts in the capacity of Manager, Yates being Solicitor for the company in this country.' (England)

3. Articles of Incorporation.

These were the articles filed with the Secretary of State of Illinois on February 11, 1959, pursuant to which, a certificate of incorporation was issued to Local Readers Service, Inc. The document lists the incorporators as 'M. E. Petty', 'G. Gold' and 'E. S. Roberts'. There is no mention of E. J. Moyers in the document.

4. Certified copy of Special Meeting of Shareholders.

In this document, the secretary certified the directors of Local Readers Service, Inc., as of November 24, 1959, to be: 'Richard Y. Long', 'Richard L. Harrington', and 'Irwin J. Waxler'. There is no mention of E. J. Moyers.

5. Certified copy of Special Meeting of Directors.

This document is dated November 24, 1959, and contains the minutes of the election of officers. It lists the names of the officers elected at that meeting, and their respective capacities, E. J. Moyers, was not mentioned.

Although, there may be some question as to the admissibility of the Dun and Bradstreet report, it is not raised and will not be considered.

In the argument portion of its brief, appellant states general principles of law concerning the efficacies...