{ "id": 11271358, "name": "G. W. WHITEHURST v. KERR and WOLCOTT, Receivers N. & S. Ry. Co., the McLEAN CONTRACTING COMPANY, and McDERMOTE CONTRACTING COMPANY", "name_abbreviation": "Whitehurst v. Kerr", "decision_date": "1910-09-21", "docket_number": "", "first_page": "76", "last_page": "83", "citations": [ { "type": "official", "cite": "153 N.C. 76" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "22 Fed., 305", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 6717094 ], "opinion_index": 0, "case_paths": [ "/f/22/0305-01" ] }, { "cite": "148 N. C., 344", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269986 ], "opinion_index": 0, "case_paths": [ "/nc/148/0344-01" ] }, { "cite": "17 Ohio, 641", "category": "reporters:state", "reporter": "Ohio", "opinion_index": 0 }, { "cite": "115 N. Y., 437", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 562760 ], "opinion_index": 0, "case_paths": [ "/ny/115/0437-01" ] }, { "cite": "135 U. S., 304", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3543015 ], "opinion_index": 0, "case_paths": [ "/us/135/0304-01" ] }, { "cite": "150 U. S., 653", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3571824 ], "opinion_index": 0, "case_paths": [ "/us/150/0653-01" ] } ], "analysis": { "cardinality": 676, "char_count": 15047, "ocr_confidence": 0.45, "pagerank": { "raw": 3.9933503857405914e-07, "percentile": 0.9055016334929179 }, "sha256": "8c9c3900e65ad006a6565cc29f2cd0f051c2a0841949798048cf2c18e2239259", "simhash": "1:fe1f843b98822beb", "word_count": 2603 }, "last_updated": "2023-07-14T20:39:54.157289+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "G. W. WHITEHURST v. KERR and WOLCOTT, Receivers N. & S. Ry. Co., the McLEAN CONTRACTING COMPANY, and McDERMOTE CONTRACTING COMPANY." ], "opinions": [ { "text": "Hoke, J.\nThe power of a State Legislature to provide for service of process on foreign corporations doing business within the State is no longer questioned. Speaking to the subject in the case of St. Clair v. Cox, 106 U. S., Associate Justice Fields said: \u201cThe State may, therefore, impose as a condition upon which a foreign corporation shall he permitted to do business within her limits, that it shall stipulate that in any litigation arising out of its transactions in the State, it will accept as sufficient the service of process on its agents or persons specially designated; and the condition would be eminently fit and just. And the condition and stipulation may be implied as well as expressed. If a State permits a foreign corporation to do business within her limits, and at the same time provides that in suits against it for business there done, process shall be served upon its agents, the provision is to be deemed a condition of the permission; and the corporations that subsequently do business in the State are to be deemed to assent to such condition as fully as though they had specially authorized their agents to receive service of the process. Such condition must not, however, encroach upon those principles of natural justice which require notice of a suit to a party before he can be bound by it. It must be reasonable and the service provided for should be only upon such agents as may be properly deemed representatives of the foreign corporation. The decision of this Court in Lafayette Insurance Co. v. French, to which we have already referred, sustains these views.\u201d And the doctrine so stated is universally recognized and acted on.\nOur State statute applicable to and controlling the question presented on this appeal, Revisal 1905, sec. 440, is in terms as follows: \u201cIf the action be against a corporation, to the president or other head of the corporation, secretary, cashier, treasurer, director, managing or local agent thereof: Provided, that any person receiving or collecting moneys within this State for, or on behalf of, any corporation of this or any other State or government, shall be deemed a local agent for the purpose of this section; but such service can be made in respect to a foregn corporation only when it has property within the State, or the cause of action arose therein, or when the plaintiff resides in the State, or when such service can be made within the State, personally upon the president, treasurer, or secretary thereof.\u201d\nConstruing a statute of similar import it has been held, that the first clause enumerates the persons on whom service of process can be made, to-wit, on the president or other head of the corporation, secretary, treasurer, director, managing or local agent thereof, and in that respect applies to all corporations both domestic and foreign. Then follows the proviso as to who shall be considered local agents for the purpose of the section and the last clause establishes certain conditions, restrictive in their nature, which are required and necessary to a proper and valid service on foreign corporations. That is, service on the persons designated in the first clause shall only be good as to foreign corporations: (1) When they have property in the State, or (2) when the cause of action arose therein, or (3) when plaintiff resides in the State. And then a fourth method is established: (4) \u201cWhen service can be made within this State personally on the president, treasurer or secretary thereof.\u201d\nThis construction will be found approved and sustained in Foster v. Chas. Betcter Lumber Co., 5 So. Dakota, page 57, and authoritative decisions here and elsewhere are in accord with the general principles of that well considered case, Higgs v. Sperry, 139 N. C., p. 299; Clinard v. White & Co., 129 N. C., p. 251; Jones v. Insurance Co., 88 N. C., p. 499; M. ReHohorst, Petitioner, 150 U. S., 653; Societe Fonciere v. Millikin, 135 U. S., 304; Tuchband v. C. & A. R. R. Co., 115 N. Y., 437; Express Co. v. Johnston, 17 Ohio, 641; Porter v. R. R., 1 Nebraska, p. 14.\nIn Jones v. Insurance Co., supra, it was expressly held that service on a foreign corporation could be made either on a general agent or local agent, and construing the terms, of the proviso in the statute to the effect \u201cthat any person receiving or collecting moneys within the State for or on behalf of any corporation of this or any other State or government, shall be deemed a local agent for the purpose of this section.\u201d It has been further held that this \u201cauthority to receive money is not the exclusive test of a local agent upon whom service of process could be made,\u201d and that these words of the proviso were not intended to \u201climit service to such class of agents, but to extend the meaning of the word agent to embrace them.\u201d Copland v. Telegraph Co., 136 N. C., p. 12. While there is some apparent conflict of decision in construing these statutes providing for service of process on corporations arising chiefly from the difference in the terms used in the various statutes on the subject, the cases will be found, in general agreement, on the position that in defining the term agent it is not the descriptive name employed, but the nature o\u00a3 the business and the extent o\u00a3 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. 19 Enc. Pl. and Pr., pp. 665, 676, 677; Simmons v. Box Co., 148 N. C., 344; Jones v. Ins. Co., 88 N. C., supra; Angerhoefer, Jr., v. Bradstreet Co., 22 Fed., 305; Hill v. St. Louis Ore and Steele Co., 90 Mo., p. 103. And by express provision of our statute as stated, including \u201cAny person receiving or collecting moneys within this State for or on behalf of any corporation of this or any other State or government.\u201d Applying the principles established by these decisions and on the facts appearing in the record, we are of opinion that F. H. Cameron was an agent of defendant corporation, appellee, upon whom process could be lawfully served; that conditions existed authorizing service on him as such agent and that service of process upon said E. II. Cameron, as shown by the sheriff\u2019s return, \u201cby reading and leaving a copy with E. H. Cameron, bookkeeper and acting agent,\u201d was a valid service, and said company is thereby properly in court.\nAlthough the parties were so intent on the question of the kind of agency required to a proper service that they failed to state the nature of the action pr that the plaintiff resides in the State, or in express terms that it had property therein, and although there is evidence to the effect that E. H. Cameron was styled only a bookkeeper of the defendant company \u201cmerely that and nothing more,\u201d it does appear from a x>erusal of the record, that at the time this summons was issued and before and after that time, defendant company was engaged in building a railroad bridge across Albemarle Sound in the State at a point where it is from three to five miles wide, the width suggested being a physical fact of which the court may take judicial notice ; that it was an enterprise of unusual proportions, requiring an extensive equipment and necessarily involving the employment of large numbers of hands and the expenditure of large sums of money; that the agent F. H. Cameron had charge and control of the money of the company appropriated for the purpose and kept it on deposit in a local bank, the bank entries showing that this continued in one bank from 5 May, 1909, to 18 March, 1910; that he had the company\u2019s pay rolls, and disbursed this money in payment of the hands and other claims against the company. Thus an affidavit of the sheriff filed at the instance of defendant and in explanation of a prior affidavit made by that officer states, \u201cThat he, the sheriff, does not know that F. H. Cameron received money in any way for the company; that his only information upon the subject is, that said F. H. Cameron upon one occasion paid to him for the McLean Contracting Company certain costs that he (the sheriff) held against said company in an attachment proceeding on behalf of the Edenton lee and Cold Storage Company and others amounting to $64, and in addition was informed that the said Cameron for the said contracting company paid to the plaintiff in that action the amount of these claims, etc.\u201d\nThis former affidavit was as follows: \u201cThat he knows F. H. Qameron, who was acting as agent for the McLean Contracting Company, in building a bridge across the Albemarle Sound for the Norfolk and Southern Eailway Company near Edenton; that he knows the said ,F. H. Cameron received money and paid out money for the said McLean Contracting Company.\u201d\nThe affidavit of Charles H. Wood, the cashier of the Citizens Bank of Edenton, N. C., is as follows: \u201cThat he knows F. H. Cameron, employed by the McLean Contracting Company, in building a bridge across the Albemarle Sound, near this place (Edenton, N. 0.), for the Norfolk and Southern Eailway Company; that he knows that the said F. H. Cameron deposited moneys from the McLean Contracting Company, after handling the pay roll to his credit as agent, and drew on same for payment of sundry accounts. The pay rolls were not deposited but the money deposited by F. H. Cameron, agent, was received from said McLean Contracting Company. According to our books, Ms first deposit, as E. H. Cameron, agent, was 5 May, 1909; bis last deposit was 18 March, 1910.\u201d\nAnd while the affidavit of E. H. Cameron, himself, and several other officers of the company, state that he is only a bookkeeper and without authority to receive or collect money for the company, he also states, \u201cThat his sole duties are to keep the books of the company wherever it is engaged in contracting work and to settle with and pay off its mechanics and laborers.\u201d\nSo far as appears, this agent was the only representative of the company on the ground having any charge or control of the financial features of this transaction, and we are of the opinion as stated that from the facts in evidence it is clear that his authority and occupation went far beyond the duties of an ordinary bookkeeper, and, if not a managing agent as defined in some of the decisions, that he came well within the meaning of the term local agent on whom process could be properly served; and that at the time of action commenced the company was doing business in the State and had property therein.\nThere is nothing either in Moore v. Bank, 92 N. C., p. 590, or in Kelly v. Lefaiver, 144 N. C., p. 4, cases cited and relied on by defendants, which militates in any way against the disposition we make of this appeal. In Moore\u2019s case it was held that an attorney-at-law who had certain claims to collect for a foreign corporation was not in the regular employment of the company so as to become a local agent within the true meaning of our statute on the service of process. And in Lefaiver\u2019s ease, supra, the Court, in stating the essential facts, said, \u201cIt will be noted that the person in question was not an agent in the course of the company\u2019s business while it was being operated, nor in closing out said business, nor in making general disposition of the company\u2019s property after it had ceased to do business. In fact, he was not an agent of the company at all, nor even an employee in the ordinary acceptation of the term, but simply a care taker\u2014 acting, as found by the Court, out of friendship and without salary or any pecuniary recompense,\u201d showing that neither decision is applicable to the facts presented here. For the reasons stated tbe order of tbe court below dismissing tbe action as to appellee company will be set aside, and tbe cause proceeded witb according to law and tbe course and practice of tbe Court.\nReversed.", "type": "majority", "author": "Hoke, J." } ], "attorneys": [ "J. C. B. Ehringhaus, F. F. Aydlett for plaintiff.", "S. Brown Shepherd and Pruden & Pruden for defendant." ], "corrections": "", "head_matter": "G. W. WHITEHURST v. KERR and WOLCOTT, Receivers N. & S. Ry. Co., the McLEAN CONTRACTING COMPANY, and McDERMOTE CONTRACTING COMPANY.\n(Filed 21 September, 1910.)\n1. Foreign Corporations \u2014 Process\u2014Statutory Regulations.\nThe Legislature may provide for service of process on foreign corporations doing business within the State, provided the service is reasonable and to be made only upon such agents as are representative, and the provisions of Revisal, section 440, meet with this requirement.\n2. Same \u2014 \u201cLocal Agent\u201d \u2014 Interpretation of Statutes.\nThe proviso of section 440 (1) of the Revisal, \u201cthat any person receiving or collecting money within this State for, or on behalf of\u201d a foreign corporation, with respect to service of process, \u201cshall be deemed a local agent,\u201d does not limit the meaning of the word agent, but extends its meaning; and service made in this State on the various officers or agents of a foreign corporation enumerated in this section is binding on the corporation, without the requirement that the corporation has property in the State, or the cause of action arose, or the plaintiff resided therein.\n3. Same \u2014 Definition.\nAn agent of a foreign corporation upon whom process may be served under the provisions of the Revisal, section 440 (1), must be one regularly employed, having some charge or measure o\u00ed 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 on him; and the term agent does not extend to a subordinate employee, without discretion.\n4. Same.\nOne who has charge of the funds of a foreign corporation building a railroad bridge in this State, which carries on an enterprise of large proportions, employing large numbers of hands and expending large sums of money, the said agent paying off the hands and keeping the company\u2019s money in local banks in his name as its agent, comes within the meaning of the term \u201clocal agent,\u201d lievisal, section 440 (1), upon whom process on a foreign corporation may be served.\nAppeal from Ferguson, J., at the May Term, 1910, of Pas-QUOTANK.\nCivil action instituted in Superior Court Pasquotank County on 15 January, 1910. Return service on the McLean Contracting Company as follows: \u201cReceived 26 February, 1910. Served 26 February, 1910, by reading to and leaving a copy with Mr. F. H. Cameron, bookkeeper and acting agent for the above defendant company, the McLean Contracting Company.\u201d\nAt Spring Term, 1910, Superior Court Pasquotank County, before his Honor G-. S. Ferguson, Judge, the defendant, the McLean Contracting Company, a special appearance having been entered for the purpose, moved to dismiss the action as to said company for want of proper service. Motion allowed and plaintiff excepted and appealed.\nJ. C. B. Ehringhaus, F. F. Aydlett for plaintiff.\nS. Brown Shepherd and Pruden & Pruden for defendant." }, "file_name": "0076-01", "first_page_order": 124, "last_page_order": 131 }