Zeigler v. Puritan Mills
| Decision Date | 03 November 1938 |
| Docket Number | 14764. |
| Parties | ZEIGLER v. PURITAN MILLS. |
| Court | South Carolina Supreme Court |
Appeal from Common Pleas Circuit Court of Allendale County; E. C Dennis, Judge.
Action by L. B. Zeigler against the Puritan Mills. From orders holding that defendant was not doing business within the state, and setting aside service, plaintiff appeals.
Affirmed.
The order of Judge Dennis, requested to be reported, follows:
This action was instituted in the Court of Common Pleas for Allendale County, on the 20th day of July, 1937, by handing copies of the summons and complaint to C. A. Avrett, a commercial traveler for the defendant, Puritan Mills, in Barnwell County. It appears from the record that the only authority of Mr. Avrett was to solicit orders for the said Puritan Mills.
The record further discloses that on August 2 1937, the defendant filed a special appearance and moved to set aside the process alleged to have been made upon Mr Avrett, upon two grounds: (1) That C. A. Avrett was not an agent of the defendant upon whom service of process could properly be made; and (2) that Puritan Mills, a Georgia corporation, was not subject to process in the State of South Carolina because it was not doing business in this State.
It further appears that after service of the notice of the motion to set aside the alleged service, the plaintiff, on August 5, 1937, pursuant to Act No. 349 of the Acts of 1933 38 St. at Large, p. 486, served copies of the summons and complaint upon the Secretary of State.
When the motion was called up before Honorable J. Henry Johnson, Resident Judge of the Fourteenth Judicial Circuit, on the 6th day of August, 1937, he passed an order disqualifying himself to hear the motion, for the reasons therein stated, and continued said motion until it could be heard by a Judge of this Court who had jurisdiction to hear same; and the order further provided that the rights of the defendant be preserved and in nowise lost by reason of the disqualification. Upon the filing of said order, notice was duly given to the plaintiff that the motion now under consideration would be heard before me at Hampton, South Carolina, on the 27th day of September, 1937.
In determining the issues before me, it is my opinion that they should be considered in reverse order, for, if Puritan Mills, the defendant herein, is not doing business in the State of South Carolina in a jurisdictional sense, it becomes unnecessary to determine whether Mr. Avrett was a proper agent upon whom service of process could be made.
The record before me shows, and I so find, that Puritan Mills is a Georgia corporation, with its principal place of business in Atlanta, Georgia, and that at the time of service of process in this action it maintained a branch office at Augusta, Georgia. The record further discloses that prior to, at the time of, and since, the institution of this action, the defendant did not maintain an office in South Carolina, and had no property in South Carolina; and that the only person representing the defendant who came into South Carolina was the said C. A. Avrett, who, so far as the record discloses, came into the State only for the purpose of soliciting orders, which were sent to the main office of the defendant in Atlanta, Georgia, or to its branch office in Augusta, Georgia, that he had no authority to make contracts in behalf of the defendant, but all orders taken by him were taken subject to the approval of Puritan Mills at either Augusta, Georgia, or Atlanta, Georgia, and that the said C. A. Avrett did not reside in South Carolina, but resided in the State of Georgia.
It further appears that certain deliveries of goods were made by Puritan Mills on orders solicited and thereafter approved in the State of Georgia, by a truck owned by the defendant. These deliveries amounted to a very small proportion of the entire business solicited in South Carolina. The record discloses that this truck carried a South Carolina license, but that it was maintained and kept in Augusta, Georgia; so I do not think that the mere fact that the truck of the defendant had a South Carolina license has any bearing on the issues before the Court.
The first question presented is whether, under these facts, the defendant is subject to the jurisdiction of this Court.
As stated in the case of Wiggins & Sons, Inc., v. Ford Motor Company, 181 S.C. 171, 186 S.E. 272, 273, the Court said:
In determining what constitutes doing business, the Courts have laid down no hard and fast rule, but are inclined to judge each case upon its own merits. People's Tobacco Co. v. American Tobacco Co., 246 U.S. 79, 38 S.Ct. 233, 62 L.Ed. 587, 590, Ann.Cas.1918C, 537. The Courts, however, have uniformly held that the mere solicitation of business in the State is not sufficient to subject a corporation to legal jurisdiction. People's Tobacco Co. v. American Tobacco Co., supra; Davega, Inc., v. Lincoln Furn. Co., 2 Cir., 29 F.2d 164.
They have held that if it maintains in the State an advertising agent that is not sufficient to confer jurisdiction. People's Tobacco Co. v. American Tobacco Co., supra; 14A C.J. 1378.
The ownership and protection of property is not sufficient. Territory of New Mexico ex rel. v. Baker, 196 U.S. 432, 25 S.Ct. 375, 49 L.Ed. 540.
The incidental adjustment of a claim is not sufficient. Southeastern Dist. Co. v. Nordyke & Marmon Co., 159 Ga. 150, 125 S.E. 171; Davega, Inc., v. Lincoln Furn. Co., supra.
The Courts have held that the combination of several of these matters is not sufficient. Green v. Chicago Burlington & Q. R. Co., 205 U.S. 530, 27 S.Ct. 595, 51 L.Ed. 916, 918; Davega, Inc., v. Lincoln Furn. Co., supra; Hilton v. Northwestern Expanded Metal Co., D.C., 16 F.2d 821; Alpha Portland Cement Company v. Massachusetts, 268 U.S. 203, 45 S.Ct. 477, 69 L.Ed. 916, 44 A.L.R. 1219.
The United States Supreme Court, in the Green Case, supra, held that although the railroad company maintained in Philadelphia a district freight and passenger agent, with numerous working subordinates under him, who solicited and obtained freight and passengers, and who maintained an office and occasionally sold tickets, this was insufficient to constitute doing business in Pennsylvania.
The plaintiff lays great stress on the fact that the deliveries in question to the plaintiff and others were made by a truck belonging to the defendant, which, as hereinbefore set out, was maintained and kept in Augusta, Georgia. The goods were delivered by the defendant from Augusta, Georgia, by said truck to the plaintiff, who resides in Allendale County, South Carolina.
The proof shows that at the time of the taking of the orders in question, the merchandise ordered was not within the State of South Carolina, and that the salesman soliciting the orders had no interest whatsoever in the goods, in the truck which made the deliveries, nor in the sale price of the goods.
As stated in the case of Jewel Tea Co. v. City of Camden, 171 S.C. 353, 172 S.E. 307, 308:
"[If] the goods are not in the state at the time of sale, the manner of delivery is unimportant, the transaction being as much interstate in character when the goods are shipped by the manufacturer either to the selling or delivery agent and by him delivered to the purchaser as where the goods are shipped direct to the purchaser."
The Court further said in the Jewel Tea Company Case, supra:
"It seems clear that the mere fact that articles are carried in private conveyances does not prevent the transaction becoming interstate commerce."
In addition to the authorities cited in the Jewel Tea Company Case, supra, the United States Supreme Court laid down the same rule in the following cases: Kirmeyer v. Kansas, 236 U.S. 586, 35 S.Ct. 419, 59 L.Ed. 721; United States v. Ohio Oil Company, 234 U.S. 548, 34 S.Ct. 956, 58 L.Ed. 1459; and Pennsylvania Gas Company v. Public Service Commission, 252 U.S. 23, 40 S.Ct. 279, 64 L.Ed. 434.
Furthermore there are recent and quite pertinent decisions of the Supreme Court of the United States which are controlling upon this question. In Bank of America v. Whitney Cent. Nat. Bank, 261 U.S. 171, 43 S.Ct. 311, 67 L.Ed. 594, the Court held that the fact that the defendant bank, domiciled in New Orleans, maintained the relationship of principal and agent with six New York banks, which regularly performed various acts in New York on behalf of the defendant, including receiving and delivering in New York securities belonging to the defendant, paying various persons in New York for such securities, making other payments on behalf of...
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