Spencer Concrete Products Co. v. City of Spencer

• Decision Date: 24 July 1962
• Docket Number: No. 50641,50641
• Citation: 254 Iowa 87,116 N.W.2d 455
• Parties: SPENCER CONCRETE PRODUCTS COMPANY, a Corporation, Plaintiff-Appellee, v. CITY OF SPENCER, Iowa, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 455

116 N.W.2d 455

254 Iowa 87

SPENCER CONCRETE PRODUCTS COMPANY, a Corporation, Plaintiff-Appellee, v. CITY OF SPENCER, Iowa, Defendant-Appellant.

No. 50641.

Supreme Court of Iowa.

July 24, 1962.

James & Greer and Murray Underwood, Spencer, for appellant.

Cornwall, Cornwall & Avery, Spencer, and Alan Loth, Fort Dodge, for appellee.

THOMPSON, Justice.

This case arises because of a mistake in identity. The mistake was an unfortunate one, and is now irremediable.

The City of Spencer commenced proceedings for the condemnation of a tract of land, 1.14 acres in extent, owned by Spencer Concrete Products Company, an Iowa Corporation. The condemnation commission returned a value finding which the condemnor city thought excessive, and it attempted to appeal. Notice of appeal was duly served upon the sheriff, and a copy of the notice was delivered to a deputy sheriff with directions to serve it upon the Spencer Concrete Products Company by serving Clarence A. Phillips, the president of the corporation. By mistake the deputy sheriff served the notice upon Clifton F. Phillips, a brother of Clarence. Clifton F. Phillips was not an officer or director of the company, but was in its employ. By the time the error was discovered by the city the thirty days allowed by statute, Section 472.18, Code of 1962, I.C.A., for the taking of the appeal had passed. The Spencer Concrete Products Company filed its special appearance, which was sustained by the trial court, and the City of Spencer has appealed.

Some confusion arises from the caption of the case as it comes to us. Therein the Spencer Concrete Products Company is named as plaintiff and the City of Spencer as defendant. Since the city is the moving and attacking party and generally has the burden on the issues made, we shall hereafter refer to it as the plaintiff, and to the Spencer Concrete Products Company as the defendant. We shall also refer to the City of Spencer as the city, and to the Spencer Concrete Products Company as the company.

I. The city assigns four errors relied upon for reversal. Number 1 presents what we consider the city's major contention. It is that the service of notice on Clifton F. Phillips was valid notice to the company, because he was an agent under the provisions of Section 472.18, supra. We set out this section herewith. 'Appeal. Any party interested may, within thirty days after the assessment is made, appeal therefrom to the district court, by giving the adverse party, this agent or attorney, and the sheriff, written notice that such appeal has been taken.'

The contention is that Clifton F. Phillips was an agent of the company within the meaning of the quoted section. This being a direct attack upon the jurisdiction of the court, the city as plaintiff asserting such jurisdiction had the burden of proving it. Hill v. Electronics Corporation of America, Iowa, 113 N.W.2d 313, 318; Mayer v. Wright, 234 Iowa 1158, 1162, 1163, 15 N.W.2d 268, 270, and citations.

Also the rule is clear, and it is not disputed, that the trial court's findings of fact on a hearing on a special appearance have the status of a jury verdict. They may not be challenged in this court if they are supported by any substantial evidence. The proceeding is a special one not triable in equity, and so not triable de novo in the appellate court. Even though the evidential facts are not in dispute, if different inferences may be drawn from them the trial court's interpretation must be accepted. It is seldom that one who has the burden of proof is entitled to a peremptory instruction or a directed verdict. Harlan Production Credit Association v. Schroeder Elevator Company, Iowa, 112 N.W.2d 320, 322; Barnes v. Gall, 251 Iowa 921, 926, 103 N.W.2d 710, 713; Frederick v. Goff, 251 Iowa 290, 296, 100 N.W.2d 624, 628, and citations.

The foregoing rules are thoroughly settled, and there is in fact no claim made that they do not apply here. The city's case, if any it has, must be based upon the proven contention that the facts before the trial court were without substantial contradiction, that there was no room for inferences supporting the court's findings, and that only one conclusion could be drawn from them. It is, in fact, the city's position that Clifton Phillips is so conclusively shown to have been an agent of the company for the purpose of service of notice within the meaning of Section 472.18, supra, that the plaintiff was entitled to a finding to that effect as a matter of law. We are unable to agree with this position.

It is apparent that in deciding whether there was substantial evidence to support the trial court's finding that Clifton Phillips was not an agent of the company, we must take the evidence in the light most favorable to the defendant, that is, to the Spencer Concrete Products Company, which it will reasonably bear. The showing is that Clifton Phillips had been for some time engaged in the operation of a restaurant, and had sold this business and was looking about for another cafe. In August, 1960, about two months before the notice in this case was served upon him, he was employed by the company, of which his brother Clarence seems to have been the sole, or at least the controlling, owner, as a 'good will' man. His duties were to travel about the trade territory and contact possible customers of the company, giving them price lists. He was furnished with a company car with the company's name painted on it. He was equipped with business cards, evidently some which had been used by another salesman; but the name of the former salesman was blocked out, as were the words 'Sales Rep.' He had no authority to make sales but was directed to refer any prospective customers to his brother, the president and general manager of the company. He had not been employed by the company before August, 1960, and had little knowledge of its business. When he was not on the road delivering price lists to dealers in the company's products he occasionally answered the telephone in the office, and on one occasion he sold an item to a customer, who 'had to tell him where it was to be found and the price.'

He had no authority to make or change any prices other than those shown on the price lists with which he was furnished; and if a question of prices came up he was directed to tell the prospect to 'get in touch with Jack'--this being the name by which Clarence Phillips was generally known. He reported on prospects; but he had no authority to make sales, deal with the company's real estate, or to do anything other than to deliver the price lists and report to his brother. This is the substantial meaning of the defendant's evidence.

We have set out above Section 472.18, from which we learn that the notice of appeal must be served on the adverse party, his agent or attorney. At this point the first sentence of Section 472.19 immediately following becomes important. It says: 'Such notice of appeal shall be served in the same manner as an original notice.' The plaintiff thinks this part of Section 472.19 has no bearing upon Section 472.18. We are unable to follow the argument at this point. What is now Section 472.19 was originally adopted by the legislature, 47th General Assembly, Chapter 203, as an amendment to the then Section 7839, which was identical with the present Section 472.18. The amendment added to Section 7839, now 472.18, the language now found in Section 472.19, and became a part of the original statute. The statute has since been divided by code editors so that instead of the entire act appearing in Section 472.18 it is printed in two sections, 472.18 and 472.19. But the language is still in effect a part of Section 472.18. It clearly refers to the preceding section, which deals with the service of notice of appeal. It refers to 'Such notice of appeal' and can only mean the notice of appeal referred to immediately proceding.

So we have the language of the amendment of the 47th G.A. providing that the notice of appeal 'shall be served in the same manner as an original notice.' We turn to the rules of civil procedure defining the manner of service of original notices. Rule 56, 58 I.C.A. says: 'Original notices are 'served' by delivering a copy to the proper person. Personal service may be made as follows: * * * (f) Upon a * * * domestic or foreign corporation, by serving any present or acting or last known officer thereof, or any general or managing agent, or any agent or person now authorized by appointment or by law to receive service of original notice * * *.'

Thus the manner of service of an original notice upon a corporation must be, so far as the present case is concerned, by serving a 'general or managing' agent. Corporations often have numerous employees, most of them having no connection with the management of its business. The legislature, by amending the existing law, evidently thought it best to provide a certain way in which the management of a corporation would be sure to have knowledge of the service of a notice. Nor would we be inclined to hold, even without the direction of the statutes that notice to a corporation must be served on an officer or general or managing...