Mauney v. . Luzier's, Inc.

DeviN, J. The question presented by this appeal is whether the facts found by the court below are sufficient to sustain the judgment that the service of process on the defendant was in all respects legal and valid. The pertinent provisions of the statute, 0. S., 483 (1), prescribing the method of service of process on corporations, resident and nonresident, require that the summons be served upon an officer of the corporation or “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.” This statute was construed by this Court in Whitehurst v. Kerr, 153 N. C., 76, 68 S. E., 913, and it was there held that the service on the managing local agent of a foreign corporation was valid when (1) the corporation had property in the State, or (2) when the cause of action arose therein, or (3) when the plaintiff resides in the State. *637 And with, further reference to the definition of the words “local agent,” tbe Court, in that case, used this language: “In defining the term ‘agent’ it is not the descriptive name employed, but the nature of the business and the extent of the authority given and exercised which is determinative, and the word does not properly extend to a subordinate employee without discretion, but- must be one regularly employed, having some charge or measure of control over the business entrusted to him or of some feature of it, and of sufficient character and rank as to afford reasonable assurance that he will communicate to his company the fact that process has been served upon him.” This statute, C. S., 483 (1), has been many times considered by this Court and the general principle stated in Whitehurst v. Kerr, supra, approved. Lunceford v. Association, 190 N. C., 314, 129 S. E., 805; Lumber Co. v. Finance Co., 204 N. C., 285, 168 S. E., 219; Steele v. Tel. Co., 206 N. C., 220, 173 S. E., 583. In the case at bar it appears from the facts found, supported by affidavits, that the defendant’s method of handling its business was that the defendant’s representative or soliciting agent took the order of the customer, with a cash deposit of ten per cent service charge, and forwarded the order and cash to C. C. Beck, the representative’s manager, in Charlotte, North Carolina, who in turn forwarded the same to the defendant’s home office, and that in addition to the service charge the total purchase price of goods was paid to C. C. Beck for the defendant. Illustrating the extent of defendant’s business in the State, it may be noted that it is stated in plaintiff’s affidavit that the volume of sales by defendant in North Carolina amounts to between $150,000 to $250,000 annually, and that C. C. Beck received a compensation of $12,000 to $15,000 per annum. To constitute one a local agent .of a nonresident corporation, as defined by the North Carolina statute, requires something more than the mere solicitation of orders and the shipment of goods in fulfillment of those orders. Peoples Tob. Co. v. Am. Tob. Co., 246 U. S., 79; Int. Harvester Co. v. Ky., 234 U. S., 579; Riverside Cotton Mills v. Menefee, 237 U. S., 189; Tignor v. Balfour, 167 Va., 58, 187 S. E., 468. The fact that the agent within the State is engaged regularly in making-collections for the goods sold is to be taken as the distinguishing fact. Hilton v. Northwestern Expanded Metal Co., 16 F. (2), 821. In Brown v. Coal Co., 208 N. C., 50, 178 S. E., 858, cited by appellant, it was found that the defendant corporation had no agent in the State and was not doing business in the State. If the court below has correctly found that the plaintiff has procured service of summons on an agent of the defendant who was regularly engaged in receiving and collecting money for it in this State in accord *638 with C. S., 483 (1), the validity of this service would not be affected by tbe provisions of C. S., 1137, since it does not appear that the defendant has designated a resident process agent in accord with that statute. Whether defendant has complied with C. S., 1181, is immaterial in so far as this plaintiff’s action is concerned, if, as found as a fact by the court below, the defendant has a local agent collecting and receiving money for it, upon whom service was properly had. The failure of the .court below to find specifically that the defendant was doing business in the State does not afford the defendant ground •for complaint, since the court found the facts as to the method and course of dealing of defendant with its customers and representatives. We conclude that the court below has correctly ruled and that the judgment must be Affirmed.