Putnam v. Triangle Publications, Inc.

• Decision Date: 01 February 1957
• Docket Number: No. 596,596
• Citation: 96 S.E.2d 445,245 N.C. 432
• Parties: Harley A. PUTNAM v. TRIANGLE PUBLICATIONS, Inc.
• Court: North Carolina Supreme Court

Page 445

96 S.E.2d 445

245 N.C. 432

Harley A. PUTNAM v. TRIANGLE PUBLICATIONS, Inc.

No. 596

Supreme Court of North Carolina.

Feb. 1, 1957

Smith, Moore, Smith, Schell & Hunter by Stephen Millikin, Greensboro, for plaintiff, appellant.

Brooks, McLendon, Brim & Holderness, Greensboro, for defendant, appellee.

PARKER, Justice.

Upon defendant's special appearances and motions to quash the service of summons and complaint and to dismiss the action, the judge heard evidence, made elaborate findings of fact, conclusions of law and rendered judgment as set forth above.

This is plaintiff's assignment of error as to the judge's findings of fact: '1. For that the Judge of the Superior Court made certain findings of fact, which findings of fact are not supported by the evidence and which findings are contrary to the evidence. Exceptions 1, 2, 3, 4, 5, 6 and 16 (R. pp. 38, 39, 40, 41, 42, 46).' This is a broadside assignment of error, which fails to point out or designate in the assignment of error the particular rulings to which exceptions are taken, so that in the assignment of error we can see the alleged error made by the judge. 'When it is claimed that findings of fact, so made by the trial judge, are not supported by the evidence, the exceptions and assignments of error in relation thereto must specifically and distinctly point out the alleged errors.' Town of Burnsville v. Boone, 231 N.C. 577, 58 S.E.2d 351, 353. See Suits v. Old Equity Life Ins. Co., 241 N.C. 483, 85 S.E.2d 602.

This assignment of error does not comply with the rules and decisions of this Court. Rule 19(3) and Rules of Practice in the Supreme Court, 221 N.C. 544, et seq; Town of Burnsville v. Boone, supra; Vestal v. Moseley Vending Machine Exchange, 219 N.C. 468, 14 S.E.2d 427.

'The Court will not consider assignments not based on specific exceptions and which do not comply with its rules.' Travis v. Johnston, 244 N.C. 713, 95 S.E. 2d 94, 96.

Plaintiff's assignment of error is not sufficient to bring up for review the findings of fact or the evidence upon which they are based, and leaves for decision the questions whether the findings of fact made by the judge support his inferences and conclusions of law and judgment, and whether any error of law appears on the face of the record. Horn v. Sandhill Furniture Co., 245 N.C. 173, 95 S.E.2d 521; Travis v. Johnston, supra; Bailey v. Bailey, 243 N.C. 412, 90 S.E.2d 696; Radio Station WMFR, Inc., v. Eitel-McCullough, Inc., 232 N.C. 287, 59 S.E.2d 779; Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609; Western Carolina Power Co. v. Moses, 191 N.C. 744, 133 S.E. 5.

Plaintiff's assignment of error No. 2 is to the conclusions of law, and is as broadside and indefinite as his assignment of error No. 1, and is set forth in substantially the same language.

This is a summary of the judge's relevant findings of fact:

Plaintiff is a citizen and resident of Guilford County, North Carolina, and instituted this action to recover damages for an article published in a magazine called Official Detective Stories, which he alleges constituted a wrongful invasion upon his private life and was libelous.

Defendant is a Delaware corporation having its principal office at 400 North Broad St., Philadelphia, Pennsylvania. Defendant has not procured a certificate of authouity from the Secretary of State of North Carolina to transact business in this State; it has never been licensed to do business in the State; and it has never designated or authorized anyone to act as a process agent or officer for it in the State.

Service of process on the defendant was sought to be made by serving the Secretary of State as agent for the defendant with copies of the summons and complaint, pursuant to G.S. §§ 55-38.05, 55-38.1 and 55-38.2.

Defendant publishes and sells magazines and newspapers in wholesale lots, such as Official Detective Stories, Seventeen, The Philadelphia Inquirer, The Morning Telegraph, Daily Racing Form and TV Guide. Defendant sells one or more of these publications to 18 independent wholesale newsdealers in North Carolina. These sales are made by the defendant delivering the publications to common carriers in States other than North Carolina. Legal ownership and title to the publications pass from defendant to these independent wholesale newsdealers upon their delivery by the defendant to the common carrier. Upon receipt of these publications the wholesale newsdealers at their own expense sell and deliver them to retail dealers. These wholesale newsdealers in the State are charged by the defendant current wholesale prices for the publications sold and shipped to them during the month, and settlement is due by the 10th day of the month for magazines purchased and shipped during the preceding month. These newsdealers are given credit for unsold copies of these publications, evidenced by returned covers mailed at their cost to defendant. The bills for these publications are paid at the offices of defendant in Philadelphia, Pennsylvania, or Washington, D. C. Defendant has authorized no person, firm or corporation to receive or collect payments of moneys for or in its behalf in North Carolina.

Defendant has no financial interest of any kind in any wholesale or retail dealer in North Carolina. It has never made any payments to them. It has never exercised, or attempted to exercise, any control, supervision or direction over the policy, management or details of the business of these wholesale newsdealers or retailers, or their personnel, or over the methods employed by them for the purpose of promoting the sales of publications, except to the limited extent that the normal relations betwewn them result in general advice or suggestions concerning sales methods and distribution. These wholesale newsdealers do not hold themselves out to the public or the trade as being agents or representatives of defendant, and they do not do business in its behalf.

The defendant has never paid or furnished these wholesale newsdealers any money for any purpose in the operation of their business.

Some residents of North Carolina subscribe to some of the magazines published by defendant, but these subscriptions are solicited from outside the State by mail and by coupons attached to the magazines. No sales to subscribers are solicited in the State of North Carolina. Defendant has not sold any of its publications to anyone in North Carolina on a consignment basis. The cause of action alleged by plaintiff does not arise out of any business solicited in North Carolina by mail or otherwise.

Defendant has virtually no advertising from North Carolina. All advertising run in behalf of firms located in North Carolina is received at one of defendant's offices located in a foreign state, generally from an advertising agency in some other state, or occasionally from an advertiser without solicitation in North Carolina. During 1955 and up to 1 June 1956 defendant employed three persons as sales promotion representatives, who, from time to time, travelled in North Carolina in promotion of sales to newsdealers and television dealers. To be specific, James Fallon is one of these representatives who visits North Carolina newsdealers two or three times a year on behalf of Official Detective Stories and Seventeen; he picks up from independent newsdealers sales figures, statistics and information relating to its own and competitive publications; his headquarters are in New York. Another representative is Leo Dominsky for TV Guide, who visits dealers in North Carolina about three times a year obtaining statistics and promoting a sale of its publications; he works out of the Philadelphia office. Another was Barry Farber, who, from May 1955 to 1 June 1956, was employed by the TV Guide Division of defendant at the home office in Washington, D. C., as a sales representative to promote publicity for that magazine with TV stations in Virginia and North Carolina. In that capacity he called on TV stations and arranged for them to promote by advertising the sale and use of TV Guide. In exchange TV Guide would advertise for the cooperating TV stations, in other words 'a swap deal on advertising would be arranged,' but no exchange of money. He called on nine TV stations in North Carolina about five times a year, spending at each station a few minutes to an hour. His activities were purely incidental to defendant's business, which is a publishing company, and were undertaken with the hope of increasing the circulation of its periodicals.

Defendant does not own, lease, operate or maintain any office, publishing house or place of business in North Carolina; it does not have a listing in any telephone, business, city or other directory in the State; it does not have any regularly employed person or agent in the State; and it does not own, lease, possess or otherwise control or use any property of any kind in the State.

All articles published by defendant in Official Detective Stories are written by free lance writers, none employed by defendant. This magazine has no staff of writers or reporters. The editorial office of defendant is in Philadelphia, Pennsylvania, to which the free lance writers send their manuscripts. If a manuscript is accepted, it is purchased by defendant. The article, which is the basis of plaintiff's action, was written by a free lance writer. who lives and has his office in Richmond, Virginia. He submitted this article to the defendant at its editorial office. The defendant accepted it. It was published by defendant in the October 1955 issue of Official Detective Stories in Philadelphia, Pennsylvania, and then delivered to a common carrier in that city for distribution as set forth above. Defendant did not commit, engage or enter into any tortious conduct in the State of North Carolina by reason of its publication and sale of the October 1955 issue of Official Detective Stories in the manner described above.

No officer,...