Opinion
No. 35408.
September 27, 1943. Suggestion of Error Overruled November 8, 1943.
1. CORPORATIONS.
The statute providing that process against foreign corporation may be served upon any agent found within county where suit is brought refers only to foreign corporations found doing business in the state (Code 1930, sec. 4167).
2. CORPORATIONS.
A foreign corporation, whose only business in state was conducted through traveling salesman who solicited orders for watches and transmitted orders to corporation for approval, who sold no merchandise, who was paid by commissions only and who furnished his own automobile, was not "doing business," and hence was not amenable to service of process in the state (Code 1930, sec. 4167).
3. VENUE.
An action against traveling salesman for injuries sustained in automobile accident was properly brought in county where accident occurred and a motion to transfer cause to "county of his residence" was properly overruled under evidence that salesman had no home nor fixed place of residence in the state (Code 1930, sec. 495).
APPEAL from circuit court of Jefferson Davis county, HON. J.C. SHIVERS, Judge.
Albert Sidney Johnston, Jr., of Biloxi, and Livingston Livingston, of Prentiss, for appellants.
A foreign corporation which sent agents into the state to solicit reserve title contracts and purchased such contracts at its office outside the state was not "doing business within the state."
Saxony Mills v. Wagner Co., 94 Miss. 233, 47 So. 899; C.I.T. Corporation v. Stuart, 185 Miss. 140, 187 So. 204; North American Mortgage Co. v. Hudson, 176 Miss. 266, 168 So. 79; Long Beach Canning Co. v. Clark et al., 141 Miss. 177, 106 So. 646; Dodds v. Pyramid Securities Co., Inc., et al., 165 Miss. 269, 147 So. 328; Harleston v. West Louisiana Bank, 129 Miss. 111, 91 So. 423; Hessig-Ellis Drug Co. v. Wilkerson et al., 115 Miss. 668, 76 So. 570; Watson et al. v. J.R. Watkins Co., 188 Miss. 435, 193 So. 913; Fireman's Fund Ins. Co. v. Cole, 169 Miss. 634, 152 So. 872; Arnett v. Smith, 165 Miss. 53, 145 So. 638; First National Bank v. Mississippi Cottonseed Products Co., 171 Miss. 282, 157 So. 349; Alabama Power Co. v. Jackson, 181 Miss. 691, 179 So. 571; Cudahy Packing Co. v. Smith, 191 Miss. 31, 2 So.2d 347.
Section 4167, Code of 1930, provides that process may be served upon any agent of said corporation. To understand Section 4167, one must bear Section 4166 in mind. "Any agent of said corporation" means any agent of a corporation found doing business in this state.
Arnett v. Smith, supra.
Counsel for appellee seems to argue that because appellant corporation proceeded to trial of the cause, it waived its motion to quash the process and its plea in abatement of the action for want of territorial jurisdiction. Appellant corporation did exactly what this court has held it should do. It made the point at each successive stage of the proceeding. The holding of this court in Arnett v. Smith et al., supra, has been constantly followed.
See also United States Casualty Co. v. Wells, 181 Miss. 464, 178 So. 483; Alabama Power Co. v. Jackson, supra; Cudahy Packing Co. v. Smith, supra; Finklea Bros. v. Powell, 189 Miss. 454, 198 So. 293.
From the above cited cases it is apparent that a foreign corporation not doing business in the State of Mississippi is not suable in the state. If such foreign corporation is sued in the courts of the state it may plead want of territorial jurisdiction and have the cause abated and dismissed. Where such plea is overruled, the foreign corporation may plead and have a trial on the merits, and by so doing it does not waive its territorial jurisdiction.
The motion of appellant Knower to transfer cause to the county of his resident should have been sustained.
Code of 1930, Sec. 495; Laws of 1940, Ch. 248.
Hall Hall, of Columbia, for appellee.
Process was properly served on an agent of the appellant company.
Code of 1930, Sec. 4167.
When appellant company filed a motion to quash the process, it thereby entered its appearance for the next term of court.
Code of 1930, Sec. 2999.
The trial court had full jurisdiction of the appellant company because process was duly served in the county where the action accrued and where suit was brought.
Saxony Mills v. Wagner Co., 94 Miss. 233, 47 So. 899.
The trial court had full jurisdiction of the appellant company because the action is based upon a tort committed in this state.
14A C.J. 1383, Sec. 4099.
The fact that appellant's business may have been exclusively interstate is wholly immaterial.
International Harvester Co. v. Kentucky, 234 U.S. 579, 58 L.Ed. 1479.
By filing a motion to quash process the appellant company entered its appearance and waived its right to subsequently challenge the jurisdiction of the court over its person.
Arnett v. Smith, 165 Miss. 53, 145 So. 638; Turner v. Williams, 162 Miss. 258, 139 So. 606; Gridley, Maxon Co. v. Turner, 179 Miss. 890, 176 So. 733, 177 So. 362; Illinois Cent. R. Co. v. Swanson, 92 Miss. 485, 46 So. 83.
Knower was a nonresident of Mississippi at the time this suit was filed and did not obtain employment in this state until eight months later. He was not a resident citizen and had no household and residence in this state, and his motion to change the venue was properly overruled.
Andrews v. Powell, 41 Miss. 729; Dean v. Brannon, 139 Miss. 312, 104 So. 173; Pan American Petroleum Corporation v. Pate, 157 Miss. 822, 126 So. 480; 67 C.J. 124, Sec. 200; 67 C.J. 151, Sec. 244.
Argued orally by Albert Sidney Johnston, Jr., for appellants.
Mrs. Baldwin brought suit in the circuit court of Jefferson Davis County for damages suffered in a collision with an automobile driven by Knower, a traveling salesman for Helbros Watch Company, Inc., a foreign corporation.
The only assignments of error argued relate to the action of the trial court in overruling a plea of the corporation to the jurisdiction, and its denial of the motion by Knower to transfer the cause against him to the circuit court of Harrison County.
The argument raises the factual issue as to whether Knower was such agent of the corporation as would render process upon him effective to acquire territorial jurisdiction of the nonresident corporation. Appellee contends that under Code 1930, Section 4167, the nature and extent of Knower's agency is immaterial since process against a foreign corporation "may be served upon any agent of said corporation found within the county where the suit is brought, no matter what character of agent such person may be." In this she falls into the same error which crept into Arnett v. Carol C. Fred R. Smith, Inc. (Miss.), 142 So. 478, and which was corrected upon suggestion of error. Id., 165 Miss. 53, 145 So. 638. This section refers, as does Section 4166, only to foreign corporations found doing business in this state. Unless, therefore, the Helbros Watch Company was found doing business in this state it is not here suable. Arnett v. Smith, supra; Lee v. Memphis Publishing Company, 195 Miss. 264, 14 So.2d 351.
We pass therefore to the inquiry whether the corporation was doing business in this state. The testimony leaves no doubt that its only business was conducted through Knower who, as its traveling salesman, solicited orders for watches and transmitted these orders to the corporation for approval. He sold no merchandise. He carried a stock of dummy watches and conducted his solicitation according to his own plans. In this connection, he was aided by suggestion or direction from time to time as to points or prospects to be covered and was subject to the general supervision of the company to whom he was responsible. He was paid by commissions only, and furnished his own automobile which he was driving when the injury occurred. His relationship as a soliciting agent is practically identical with that involved in Saxony Mills v. Wagner, 94 Miss. 233, 47 So. 899, 23 L.R.A. (N.S.), 834, 136 Am. St. Rep. 575, 19 Ann. Cas. 199. Further authority need not be adduced to support the view that the corporation was not "doing business" in this state. Lee v. Memphis Publishing Co., supra.
The corporate defendant filed in limine a motion "to dismiss the above styled cause for want of jurisdiction" which moved for dismissal of the suit. This was treated by the trial court as a motion to quash process and as such was sustained but the cause continued. Regardless of whether this should be treated as raising the question of territorial jurisdiction, a plea raising this issue was seasonably filed and a hearing had on issue joined. Batson Hatten Lbr. Co. v. McDowell, 159 Miss. 322, 131 So. 880; Arnett v. Smith, supra. This plea was overruled and in our opinion such action constituted error.
The individual defendant Knower thereupon filed his motion to transfer the cause as against him to Harrison County, "the county of his residence." This motion was an attempt to avail of Code 1930, section 495, which provides for such transfer when "a citizen resident in this state shall be sued in any action, not local, out of the county of his household and residence." This defendant is an unmarried man. He had no home nor fixed place of residence in this state. He testified that when the suit was filed he had "no particular spot" in this state that he could or did call home. During his rounds of solicitation he preferred to, and did often, stay at a Biloxi hotel "as a place of rest and relaxation." From this and the whole evidence in this regard, it is clear that the suit was properly brought in Jefferson Davis County where the accident occurred and where process was served. The motion to transfer was properly overruled.
Affirmed as to the appellant Knower, and reversed and dismissed as to the defendant Helbros Watch Company, Inc.