Heath v. Kresky Manufacturing Company , 242 N.C. 215 ( 1955 )

87 S.E.2d 300 (1955) 242 N.C. 215

M. Lee HEATH
v.
KRESKY MANUFACTURING COMPANY, Inc., a corporation, and Southern Appliances, Inc., a corporation.

No. 521.

Supreme Court of North Carolina.

May 4, 1955.

Warren C. Stack, David J. Craig, Jr., Charlotte, for plaintiff, appellee.

McDougle, Ervin, Horack & Snepp, Benj. S. Horack, Charlotte, for defendant, appellant.

HIGGINS, Justice.

The defendant Kresky Manufacturing Company, Inc., excepted to the action of the court (1) in refusing to find facts as requested, (2) in find facts as heretofore set out, and (3) in entering judgment holding the service of process valid. The exceptions neither point out which of the findings made, or refused, are objected to, nor designate what the objection is. Such exceptions, therefore, are insufficient to bring up for review either the findings of fact or the evidence upon which they are based. Rader v. Queen City Coach Co., 225 N.C. 537, 35 S.E.2d 609; Efird v. Smith, 208 N.C. 394, 180 S.E. 581; In re Will of Beard, 202 N.C. 661, 163 S.E. 748. The exception to the judgment, however, does raise this question of law: Are the findings of fact made by the court sufficient to support the judgment? Wilson v. City of Charlotte, 206 N.C. 856, 175 S.E. 306; Morganton Manufacturing & Trading Co. v. Foy-Seawell Lumber Co., 178 N.C. 571, 101 S.E. 214.

The findings of fact in summary are: The defendant is a California corporation engaged in the manufacture of heating equipment which it sells to local distributors, including the co-defendant. The Sheriff of Mecklenburg County served, or attempted to serve process on the defendant Kresky Manufacturing Company, Inc., by delivering copies to W. T. Simmons as agent for defendant. Simmons, a resident of Mecklenburg County, was employed at the time as a sales and factory representative and, through him, the defendant was present and doing business in North Carolina. At the time of service of process Simmons was the managing or local agent "and would reasonably be expected to give his principal notice of the service of process upon him."

While this Court cannot question the facts found, it is not bound by the conclusions or inferences the trial court draws from them. The crucial findings in this case are that Simmons is a resident of Charlotte and at the time of the service was employed by the defendant as a sales and factory representative. The trial court then concludes that, through him, the defendant was present and doing business in this State. The court further concludes that he was a managing or local agent. The findings fail to disclose what Simmons did or was authorized to do as sales and factory representative, what his duties were, or what he did to carry them out. This finding fails to qualify him as a managing or local agent, and fails to show that he was authorized to, or did do any business for appellant in this State. "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". Whitehurst v. Kerr, 153 N.C. 76, 68 S.E. 913, 914. In these important particulars the findings are silent.

Before a foreign corporation can be subjected to the jurisdiction of our State court, two requirements must be met: (1) The corporation must be doing business in this State; and (2) it must be present in the person of an authorized officer or agent who carries on the business. Lambert v. Schell, 235 N.C. 21, 69 S.E.2d 11. The officer or agent through whom the business is done must be one who exercises some degree of control over the corporate functions of the company. He must be empowered to exercise some discretion with respect to the business for which the company was organized and in which it is engaged. Lambert v. Schell, supra. The term "agent" means more than subordinate employee without authority or discretion. To be an agent one must have some charge or measure of control over his principal's business. Whitehurst v. Kerr, supra. A salesman or broker who takes orders and submits them to the home office of the foreign corporation for acceptance is not a managing or local agent, and the foreign corporation by reason thereof is not doing business in this State. McDonald Service Co. v. People's Nat. Bank, 218 N.C. 533, 11 S.E.2d 556. The court's findings that the Kresky Manufacturing Company, through W. T. Simmons, was present doing business in this State and that Simmons was a managing or local agent, are conclusions or inferences not justified by the specific finding merely that Simmons is sales and factory representative. Radio Station W. M. F. R., Inc., v. Eitel-McCullough, 232 N.C. 287, 59 S.E.2d 779. The facts found in that case, when placed "long side" those in the case at bar, will serve to emphasize the insufficiency of the findings that Simmons was a managing agent and that through him the Kresky Manufacturing Company, Inc., was present and doing business in North Carolina. The opinion in the Radio Station case settles the question of law presented by this appeal.

The service of process on Kresky Manufacturing Company, Inc., cannot be sustained as valid. The judgment, therefore, is

Reversed.

BARNHILL, C.J., took no part in the consideration or decision of this case.