Radio Station WMFR v. Eitel-McCullough, Inc.

• Decision Date: 09 June 1950
• Docket Number: EITEL-M,No. 669,669
• Citation: Radio Station WMFR v. Eitel-McCullough, Inc., 59 S.E.2d 779, 232 N.C. 287 (N.C. 1950)
• Parties: RADIO STATION WMFR, Inc. v.cCULLOUGH, Inc.
• Court: North Carolina Supreme Court

Page 779

59 S.E.2d 779

232 N.C. 287

RADIO STATION WMFR, Inc. v. EITEL-McCULLOUGH, Inc.

No. 669

Supreme Court of North Carolina.

June 9, 1950

Harriss H. Jarrell, High Point, for plaintiff, appellee.

B. L. Herman, E. F. Upchurch, Jr., High Point, for defendant, appellant.

SEAWELL, Justice.

If the findings of fact are supported by the evidence they are as conclusive as the verdict of a jury and are not subject to review. Matthews v. Fry, 143 N.C. 384, 55 S.E. 787; Cox v. Boyden, 175 N.C. 368, 95 S.E. 548; Tyer v. J. B. Blades Lumber Co., 188 N.C. 268, 124 S.E. 305; Tinker v. Rice Motors, Inc., 198 N.C. 73, 150 S.E. 701; J. B. Blades Lumber Co. v. Finance Co. of America, 204 N.C. 285, 168 S.E. 219; Brown v. Tennessee Coal, Iron & R. Co., 208 N.C. 50, 178 S.E. 858. But this principle does not preclude the review of inferences or conclusions of law. Western Carolina Power Co. v. Moses, 191 N.C. 744, 747, 133 S.E. 5.

In the case at bar the objection made was not that the facts found are not supported by the evidence but that the facts found and incorporated in the judgment do not support the judgment itself. In this case the court was passing on the single question as to whether service of summons upon the Secretary of State wa valid and the objection was pointed to the single question of law and fact, to be inferred from the more specific findings of fact, as to whether the defendant was doing business in this state. The finding of fact number one is obviously an inference drawn from the more specific facts found in the other numbered paragraphs and the validity of its finding and conclusion of law rests within their compass. It remains only to be seen if the findings of fact are sufficient to sustain the ruling of the court below.

Justice Connor, in Commercial Inv. Trust v. Gaines, 193 N.C. 233, 136 S.E. 609, 610, stated: 'It has been generally held that a foreign corporation cannot be held to be doing business in a state and therefore subject to its laws, unless it shall be found as a fact that such corporation has entered the state in which it is alleged to be doing business, and there transacted, by its officers, agents, or other persons authorized to act for it, the business in which it is authorized to engage by the state under whose laws it was created and organized. The presence, within the state, of such officers, agents, or other persons, engaged in the transaction of the corporation's business, with citizens of the state, is generally held as determinative of the question as to whether the corporation is doing business in the state.'

In Ruark v. Virginia Trust Co., 206 N.C. 564, 174 S.E. 441, 442, Stacy, C. J., states the rule in this way: 'The expression 'doing business in this State,' as used in C.S. § 1137 (now G.S. § 55-38), means engaging in, carrying on, or exercising, in this state, some of the things, or some of the functions, for which the corporation was created.'

What, then, has the defendant done to bring itself within the rule expressed in Commercial Inv. Trust Co. v. Gaines, supra, and Ruark v. Virginia Trust Co., supra?

A careful perusal of the findings of fact reveals that the defendant, a foreign corporation domesticated under the laws of the State of California, is engaged in the manufacture, for sale in wholesale lots, of filament tubes and that it has chosen to sell its products in North Carolina to six exclusive retail outlets designated 'dealer representatives.' These retail outlets in turn sell the product to consumers. That such is true is borne out by the finding that the defendant employs a sales representative to aid in promotion of sales to the so-called 'dealer representatives' and an agent to facilitate the collection of delinquent or slow accounts owed by the dealer representatives. That the dealer representatives are not agents of the defendant and that the defendant is not doing business in this state because of any acts of such dealer representatives is most apparent. We believe the rule laid down by Stacy, C. J., in Cape Fear Rep. v. Cobb, 190 N.C. 375, 129 S.E. 828, 829, to be most apt: 'He who acts as distributor for another, and not merely as distributor of goods manufactured by the other, acts as his agent.' And the finding that there is a continuous solicitation of orders carried on by the defendant through such dealer representative is repugnant to the other findings.

The defendant employs a sales representative who travels in North Carolina to aid in promotion of sales to dealer representatives and to facilitate sales directly with customers in company with such dealer representatives. Ordinarily the tubes are shipped from the defendant in California directly to local dealer representatives, but sometimes are shipped directly to customers.

This Court held...