Townsend v. Carolina Coach Co.

• Decision Date: 24 November 1948
• Docket Number: 385
• Parties: TOWNSED v. CAROLINA COACH CO.
• Court: North Carolina Supreme Court

50 S.E.2d 567

229 N.C. 523

TOWNSED v. CAROLINA COACH CO.

No. 385

Supreme Court of North Carolina

November 24, 1948

B. W. Blackwelder, of Concord, for appellant.

E T. Bost, Jr., of Concord, and Arch T. Allen, of Raleigh, for appellee.

Plaintiff instituted this action to recover damages for a personal injury and for loss of property, including baggage and personal belongings, and for mental suffering anxiety, and discomfort and humiliation in consequence of said loss.

Service (the validity of which is now questioned) was made in attempted compliance with G.S. s 1-97, which in terms provides:

'Service by copy.--The manner of delivering summons in the following cases shall be as hereinafter stated:

'1. If the action is against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer director managing or local agent thereof.

Any person receiving or collecting money in this state for a corporation of this or any other state or government is a local agent for the purpose of this section. Such service can be made in respect to a foreign corporation only when it has property, or the cause of action arose, or the plaintiff resides, in this state, or when it can be made personally within the state upon the president, treasurer or secretary thereof.'

For want of answer, judgment by default and inquiry was rendered by the Clerk of the Superior Court of Cabarrus County. The cause stood for hearing on the inquiry of damages at January Term, 1948. The Presiding Judge ruled that plaintiff could not recover except for loss of baggage and wearing apparel and for expenses incurred in an effort to recover same. Thus a restricted issue as to damages was submitted and answered in the sum of $676, and judgment rendered therefor.

Thereafter the defendant moved to set aside the verdict and judgment for want of service of summons on the defendant, and the motion was heard before Pless, J., at April Term, 1948, at which time the judgment was set aside.

The facts are found in the Judgment and Order made on that date:

'This cause coming on to be heard, and being heard at the April Term, 1948, of the Superior Court of Cabarrus County, North Carolina, before J. Will Pless, Jr., Judge Presiding, upon the motion of the defendant to set aside the default judgment, the verdict and final judgment, after hearing the matter the Court finds as a fact that at the time of the purported service of summons, Mrs. Pearl Miller was engaged in the sale of tickets at the Union Bus Station in Concord, selling tickets for the defendant bus line as well as others, and that in that capacity she received money for the said tickets. The Court further finds as a fact that Mrs. Miller was not in the direct employ of the defendant Coach Company, but that she was employed by George Huffstetler and M. E. Newton, trading as Concord Bus Station who acted as lessees of the bus station, operated it, furnished all the usual services to the public necessary and incident to the sale of tickets, handling baggage, and the general objects usually performed at bus stations. The Court further finds as a fact that the moneys received by Mrs. Miller in her capacity as an employee of the lessee partnership were turned over by it to the defendant Coach Company; that the defendant Coach Company paid to the partnership an amount equal to 10 per cent of the receipts for the sale of tickets as compensation for their services. The Court further finds that Mrs. Miller was not in the direct employment of the Coach Company, and that her employment or discharge was within the exclusive authority of the lessee partnership. The Court further finds that, in addition to the sale of tickets, Mrs. Miller, when necessary, supervised the...