Vulcan Construction Co. v. Harrison

• Decision Date: 11 July 1910
• Parties: VULCAN CONSTRUCTION COMPANY v. HARRISON
• Court: Arkansas Supreme Court

130 S.W. 583

95 Ark. 588

VULCAN CONSTRUCTION COMPANY v. HARRISON

Supreme Court of Arkansas

July 11, 1910

Appeal from White Circuit Court; Hance N. Hutton, Judge; affirmed.

Judgment affirmed.

Cypert & Cypert, for appellant.

Service of summons on defendant was not legally made. Kirby's Digest, § 6048; 59 Ark. 583; 59 Ark. 593; 106 U.S. 350. It was plaintiff's duty to inspect the material of which the scaffold was built. 88 Ark. 292; 76 Ark. 69; 89 Ark. 50; 68 Ark. 316; 65 Ark. 98.

S Brundidge, Jr., and H. Neelly, for appellee.

When a foreign corporation fails to designate an agent upon whom service of summons may be had, such service may be had upon the Auditor. Kirby's Dig., § 835. Besides, service on H. H. Button was sufficient service. 69 Ark. 396. The question as to sufficiency of service comes too late. 90 Ark 317; 85 Ark. 246; 38 Ark. 102. Appellant was not required to inspect the material of which the scaffold was built. 88 Ark 187; 51 Ark. 467; 48 Ark. 334.

OPINION

FRAUENTHAL, J.

This was an action instituted by M. J. Harrison, the plaintiff below, to recover damages for a personal injury which he sustained while in the defendant's employment. The defendant is a foreign corporation, organized under the laws of the State of Missouri, and for some time prior to the time of the alleged injury it was engaged in business in the State of Arkansas of building and constructing depots at the stations along the line of railroad of the Missouri & North Arkansas Railroad Company. It had appointed a superintendent, who managed and conducted its work in this State. The plaintiff was employed by the defendant as a carpenter in erecting a depot at Searcy, Arkansas. He was working upon a scaffold which broke on account of a defective plank, and plaintiff was thrown to the ground from a considerable height, and was severely injured. He instituted this suit in the White Circuit Court, and service of process of summons against the defendant was made upon its superintendent, who was in control of its business and work at Searcy, Arkansas, and also upon the Auditor of the State.

At the January term, 1909, of the circuit court, the defendant appeared specially, and filed a motion to quash the service of summons upon the ground that it was a foreign corporation, and that service of process had not been made upon any agent of defendant authorized by law as the person upon whom service may be had for it. The motion was heard by the court at the same term upon the testimony of witnesses and the affidavit of defendant's superintendent, and was overruled. Neither the testimony nor the affidavit introduced upon that hearing has been preserved in the bill of exceptions. At the following term of the circuit court the defendant filed an answer in which it set forth its plea in bar to the action; but in this answer it did not plead by way of abatement any objection to the service of the summons.

Upon the trial of the case a verdict was returned in favor of the plaintiff for $ 500, and from the judgment entered thereon the defendant has prosecuted this appeal.

It is urged by counsel for defendant that the court erred in overruling the motion to quash the service of the summons. This motion was heard by the court upon testimony that has not been preserved in the record, and we must therefore indulge the presumption that there was sufficient evidence to sustain the finding of the court if it is not contrary to law.

The defendant was a foreign corporation created by the laws of the State of Missouri, but it sent its officials and agents to the State of Arkansas, and in this State carried on its business. By section 825 of Kirby's Digest it was required to designate an agent upon whom service of summons might be made before it would be authorized to transact business in this State. It failed to comply with the provisions of said statute, and still it availed itself of the privilege to do business in this State. It brought its property into this State, and was protected by its law while it transacted its business. By this act it must be held to have assented and submitted itself to the laws of the State whose protection it had. In the case of Merchants' Mfg. Co. v. Grand Trunk Ry. Co., 21 Blatchf. 109, 13 F. 358, it is said: "Accordingly, it has been held that a foreign corporation consents to be amenable to suit by such mode of service as the laws of the State provide when it invokes the comity of the State for the transaction of its affairs. It waives the right to object to the mode of service of process which the State laws authorize." St. Clair v. Cox, 106 U.S. 350, 27 L.Ed. 222, 1 S.Ct. 354; Lafayette Ins. Co. v. French, 59 U.S. 404, 18 HOW 404, 15 L.Ed. 451; Libbey v. Hodgdon, 9 N.H. 394; 13 Am. & Eng. Ency. Law 895.

By section 835 of Kirby's Digest it is provided that "where any liability on the part of a foreign corporation shall accrue in favor of any citizen or resident of this State, whether in tort or otherwise, and such foreign corporation has not designated an agent in this State upon whom process may be served, * * * service of process of summons and other process may be had upon the Auditor of State, and such service shall be sufficient to give jurisdiction of the person" of such foreign corporation. Where a foreign corporation sends its agents and officials and its property into this State, and carries on a business in this State, service of process for it may be made upon the Auditor of State, if it fails to designate an agent upon whom such service may be had.

As none of the evidence adduced upon the hearing of the motion was properly preserved, we indulge the presumption that it was sufficient to warrant the lower court in finding that the service of the summons upon the Auditor was in full compliance with the provisions of the statutes of this State. We also indulge the presumption that the evidence warranted the court in finding that the defendant's superintendent in the county of the venue in this case had such management and control of its business in the State as to be authorized to receive service of summons upon behalf of the defendant. Lesser...