Spurlock v. J.T. Knight & Son

• Decision Date: 18 March 1943
• Docket Number: 4 Div. 248.
• Citation: 13 So.2d 396,244 Ala. 364
• Court: Alabama Supreme Court
• Parties: SPURLOCK v. J.T. KNIGHT & SON, Inc.

13 So.2d 396

244 Ala. 364

SPURLOCK v. J.T. KNIGHT & SON, Inc.

4 Div. 248.

Supreme Court of Alabama

March 18, 1943

Rehearing Denied May 27, 1943.

John C. Walters, of Troy, for appellant.

Steiner, Crum & Weil, of Montgomery, and John H. Wilkerson, of Troy, for appellee.

LIVINGSTON Justice.

The suit was commenced in the Circuit Court of Pike County Alabama, by Frank Spurlock, an individual and resident citizen of Pike County, doing business as Frank Spurlock & Sons, against J.T. Knight & Son, Inc., a corporation organized and existing under and by virtue of the laws of the state of Georgia, with its principal place of business at Columbus, Georgia.

The one count of the complaint claims damages for the breach of a written contract between the parties.

To the complaint, defendant interposed two pleas in abatement. In substance the pleas allege that defendant is a foreign corporation, not qualified to do business in Alabama, and was not doing business by agent in Pike County, Alabama (as stated in plea one), "at the time of the institution of this suit"; (and as stated in plea two) "at the time of the service of the summons and complaint upon it in this cause." Neither plea was tested by demurrer, but issue was joined on each.

Upon the completion of the testimony, the trial court gave to the jury, at the written request of the defendant, the general charge for defendant. From the verdict of the jury, rendered in accordance with the instructions given, and the judgment entered thereon, this appeal is prosecuted.

The cause was submitted here on motion relative to taxation of a part of the court costs, and on the merits.

The principal question here presented is the propriety of the lower court's action in giving the general charge for defendant. The general charge should not be given "when the evidence is conflicting, or where the evidence is circumstantial, or when a material fact rests wholly in inference." Smoot v. Mobile & Montgomery Rwy. Co. 67 Ala. 13, 15; Alabama Gold Life Ins. Co. v. Mobile Mutual Ins. Co., 81 Ala. 329, 1 So. 561; Tabler v. Sheffield Land, Iron & Coal Co., 87 Ala. 305 309, 6 So. 196; Tobler v. Pioneer Mining & Mfg. Co., 166 Ala. 482, 518, 52 So. 86; John v. Birmingham Realty Co., 172 Ala. 603, 55 So. 801; Alaga Coach Line v. McCarroll, 227 Ala. 686, 151 So. 834, 92 A.L.R. 470; New York Life Ins. Co. v. Torrance, 228 Ala. 286, 153 So. 463, 91 A.L.R. 1455; Batson v. Birmingham Trust & Savings Co., 241 Ala. 629, 4 So.2d 307.

When a corporation does business within the State, of necessity the business is done by and through agents, and the necessity is recognized by the Constitution and statutes. It is not within the purview of either that the corporate organization or its head or principal officers will migrate into the State. It is contemplated that in this State the corporation may have a visible existence by the presence of agents authorized to act for it, exercising such powers as may be intrusted to them: Making such contracts and transacting such business as may fall within the scope of the authority conferred. The mere presence of an agent within the State authorized to transact particular business, not involving an exercise of the corporate powers or franchise, not a part of the business the corporation was created and organized to transact, is not within the proper meaning of the phrases "do business," "does business," or "doing business," as employed in the Constitution and statutes.

In the case of Beard v. Union & American Publishing Co., 71 Ala 60, the Court said: "There must be a doing of some of the works, or an exercise of some of the functions, for which the corporation was created, to bring the case within that clause" referring to the first clause of the fourth section, Article 14, Constitution of 1875.

The real test is that applied in the Beard case, supra. Is the corporation engaged in the transaction of business, or any part thereof, it was created and organized to transact? If it be, it "does business" within the meaning of the Constitution and statutes. If it be not, if the act it is doing, or has done, is not within the general powers and franchise, it is not the business to which the constitutional and statutory requirements are directed. J.R. Watkins Co. v. Goggans et al., 242 Ala. 222, 5 So.2d 472.

The evidence is without dispute that the defendant is a foreign corporation, not qualified to do business in Alabama, and is engaged in the business of buying and selling scrap material. The defendant's evidence is to the effect that it was not doing business by agent in Pike County Alabama, when the suit was instituted, and when the summons and complaint was served upon it.

The written contract, the basis of the cause of action,...