Reverie Lingerie, Inc. v. McCain, 742

• Decision Date: 11 January 1963
• Docket Number: No. 742,742
• Citation: 258 N.C. 353,128 S.E.2d 835
• Parties: , 52 L.R.R.M. (BNA) 2743, 46 Lab.Cas. P 50,762 REVERIE LINGERIE, INC. v. Hugh W. McCAIN, Asa Williams, Jr., Walter V. Ashley, Benjamin Dansavage and International Ladies' Garment Workers' Union.
• Court: North Carolina Supreme Court

Page 835

128 S.E.2d 835

258 N.C. 353, 52 L.R.R.M. (BNA) 2743,

46 Lab.Cas. P 50,762

REVERIE LINGERIE, INC. v. Hugh W. McCAIN, Asa Williams, Jr., Walter V. Ashley Benjamin Dansavage and International Ladies' Garment Workers' Union.

No. 742

Supreme Court of North Carolina.

Jan. 11, 1963

Bryant, Lipton, Bryant & Battle, Durham, for plaintiff.

Ledford & Ledford, Charlotte, for defendants McCain and Williams.

Sawyer & Loftin, Hillsboro, for defendants Dansavage and Ashley.

Newsom, Graham, Strayhorn & Hedrick, Durham, for defendant Union.

DENNY, Chief Justice.

The question for determination is whether or not the respective defendants have been legally and properly served with process. If each one of these defendants has been legally and properly served with process in this action, then the Superior Court of Orange County has jurisdiction of each one of them and the denial of the respective motions to quash the return of the service of process must be upheld; otherwise, the ruling must be reversed as to any one or more of the defendants not properly served, unless such defendant has made a general appearance and thereby waived any defect in the service of process.

Appeal of the defendant ILGWU

The statutes involved are as follows:

G.S. § 1-97(6), which provides: 'Any unincorporated association or organization, whether resident or nonresident, desiring to do business in this State by performing any of the acts for which it was formed, shall, before any such acts are performed, appoint an agent in this State upon whom all processes and precepts may be served, and certify to the clerk of the superior court of each county in which said association or organization desires to perform any of the acts for which it was organized the name and address of such process agent. If said unincorporated association or organization shall fail to appoint the process agent pursuant to this subsection, all precepts and processes may be served upon the Secretary of State of the State of North Carolina. Upon such service, the Secretary of State shall forward a copy of the process or precept to the last known address of such unincorporated association or organization. Service upon the process agent appointed pursuant to this subsection or upon the Secretary of State, if no process agent is appointed, shall be legal and binding on said association or organization, and any judgment recovered in any action commenced by service of process, as provided in this subsection, shall be valid and may be collected out of any real or personal property belonging to the association or organization.

'Any such unincorporated association or organization, now performing any of the acts for which it was formed, shall, within thirty days from the ratification of this subsection, appoint an agent upon whom processes and precepts may be served, as provided in this subsection, and in the absence of such appointment, processes and precepts may be served upon the Secretary of State, as provided in this subsection. Upon such service, the Secretary of State shall forward a copy of the process or precept to the last known address of such unincorporated association or organization'; and

G.S. § 1-69.1, which provides: 'All unincorporated associations, organizations or societies, foreign or domestic, whether organized for profit or not, may hereafter sue or be sued under the name by which they are commonly known and called, or under which they are doing business, to the same extent as any other legal entity established by law and without naming any of the individual members composing it. Any judgments and executions against any such association, organization or society shall bind its real and personal property in like manner as if it were incorporated. This section shall not apply to partnerships or co-partnerships which are organized to engage in any business, trade or profession.'

Section 3 of the Constitution and ByLaws of the ILGWU provides: 'The object of the I.L.G.W.U. shall be to obtain and preserve for all workers engaged in the ladies' garment industry just and reasonable conditions of work with respect to wages, work hours and other terms of employment; to secure sanitary surroundings in their places of work and humane treatment on the part of the employers; to aid needy workers in the industry; to cultivate friendly relations between them and generally to improve their material and intellectual standards. Such objects shall be accomplished through negotiations and collective agreements with employers, the presentation, adjustment and settlement of justified grievances of workers against employers, the dissemination of knowledge by means of publications and lecture courses, through concerted efforts to organize the unorganized workers in all branches of the industry and through all other lawful and peaceable means and methods customarily employed by organized workers, to maintain or better their standards of life.'

The defendant Union bases its appeal on the ground that the court below made findings of fact that one Morton Shapiro and others were acting as agents for the defendant Union based on certain acts and declarations of Shapiro. The defendant Union contends that these findings are not supported by competent evidence in that testimony of the acts and declarations of purported agents is not competent to show agency.

In 3 Am.Jur.2d, Agency, section 355, page 714, it is stated: 'Generally, any competent witness may tell what he saw the agent do, though he may not state the inferences drawn by him therefrom. But the fact of agency cannot be established by proof of the acts of a professed agent, unless the acts are of such a character and so continuous as to justify a reasonable inference that the principal had knowledge of them. Where the acts are of such character and so continuous as to justify a reasonable inference that the principal had knowledge of them and would not have permitted them if unauthorized, the acts themselves are competent evidence of agency.

'As a general rule, an agent's authority to bind his principal may not be shown by evidence of the agent's acts. Nor may the extent of an agent's authority be shown by testimony as to his acts and conduct not within the actual or implied scope of the powers granted to him by his principal. But it has also been held that what an agent did with the knowledge and approval of his principal is circumstantial evidence of what the agent was authorized to do. ' See Strong's North Carolina Index, Vol. 3, Principal and Agent, section 4, page 665, and cited cases.

In Smith v. Kappas, 218 N.C. 758, 12 S.E.2d 693, this Court quoted with approval from 1 Mechem on Agency, section 261, page 185: "* * * The agency may be shown by conduct by the relations and situation of the parties by acts and declarations, by matters of omission as well as of commission, and, generally, by any fact or circumstance with which the alleged principal can be connected and having a legitimate tendency to establish that the person in question was his agent for the performance of the act in controversy.' [etc.] 'Agency, like any other controvertible fact, may be proved by circumstances. It may be inferred from previous employment in similar acts or transactions; or from acts of such nature and so continuous, as to furnish a reasonable basis of inference, that they were known to the principal, and that he would not have allowed the agent so to act unless authorized. In such cases, the acts or transactions are admissible to prove agency. But in order to be relevant the alleged principal must, in some way, directly or indirectly, be connected with the circumstances. The agent must have assumed to represent the principal, and to have performed the acts in his name and on his behalf.''

In the instant case, there is evidence tending to show that Morton Shapiro and others, beginning in March 1957, purporting to act as agents of the defendant Union, met with the management and employees of the plaintiff, at various times and places in Orange and Durham Counties in North Carolina, for the purpose of organizing or attempting to organize the employees of the plaintiff into a local affiliate of the defendant Union and to obtain an agreement with the plaintiff to recognize the defendant Union as the exclusive bargaining agent for the employees of the plaintiff. That Shapiro called and held meetings of the plaintiff's employees, solicited memberships in the defendant Union, distributed applications for membership in the defendant Union, took applications for membership in said Union, and issued buttons having on them 'I.L.G.W.U., A.F.L.-C.I.O.,' to employees of the plaintiff who joined the defendant Union. That on 3 April 1957 Shapiro called a strike of the employees of plaintiff...