Painter v. Home Finance Company

96 S.E.2d 731 (1957)

245 N.C. 576

Mrs. Myrtle C. PAINTER v. HOME FINANCE COMPANY.

No. 92.

Supreme Court of North Carolina.

February 27, 1957.

*733 Parker & McGuire and Bruce J. Brown, Asheville, for defendant-appellant.

M. John DuBose and Melvin K. Elias, Asheville, for plaintiff-appellee.

JOHNSON, Justice.

Decision here is controlled by Chapter 1143, Session Laws of 1955, now codified as G.S. § 55-38.1. This statute provides in pertinent part:

"`(a) Every foreign corporation shall be subject to suit in this State, by a resident of this State * * * whether or not such foreign corporation is transacting or has transacted business in [this] State and whether or not it is engaged exclusively in interstate or foreign commerce, on any cause of action arising as follows:

"`(4) Out of tortious conduct in this State, whether arising out of repeated activity or single acts, and whether arising out of misfeasance or nonfeasance.

"`(c) * * * In any case where a foreign corporation is subject to suit under this Section and has failed to appoint and maintain a registered agent upon whom process might be served * * * then the Secretary of State shall be an agent of such corporation upon whom any process in any such cause of action may be served.'"

*734 G.S. § 55-38.2 prescribes the procedure to be followed in serving process on the Secretary of State. This section also provides: "`* * * (g) Nothing herein contained shall limit or affect the right to serve any process, notice or demand to be served upon a corporation in any other manner now or hereafter permitted by law.'"

The allegations of the complaint and the crucial findings of fact made by the court below disclose that the plaintiff's cause of action arose out of the defendant's tortious conduct committed in this State. This suffices under G.S. § 55-38.1 to render the defendant amenable to the jurisdiction of the Superior Court of Buncombe County. See Smyth v. Twin States Import Corp., 116 Vt. 569, 80 A.2d 664, 25 A.L.R.2d 1193, 1194; Annotation: 25 A.L.R.2d 1202. See also Compania De Astral, S.A. v. Boston Metals Co., 205 Md. 237, 107 A.2d 357, 108 A.2d 372, petition for certiorari denied, 348 U.S. 943, 75 S. Ct. 365, 99 L. Ed. 738; International Shoe Co. v. State of Washington, 326 U.S. 310, 66 S. Ct. 154, 90 L. Ed. 95.

In this view of the case finding of fact No. 9, wherein the court below concluded that the defendant was "doing business in the State of North Carolina," may be treated as surplusage. It is unnecessary for an appellate court, after having determined the merits of the case, to examine questions not affecting decision reached. Merrell v. Jenkins, 242 N.C. 636, 639, 89 S.E.2d 242, 244. Therefore we do not reach for decision the question whether upon the facts found the court below erred in concluding that the defendant was doing business in the State of North Carolina.

With decision here being rested on the 1955 statute, the decisions in Lambert v. Schell, 235 N.C. 21, 69 S.E.2d 11, and cases there cited do not control.

The record discloses that the defendant has been duly served with process. The result below will be upheld.

Affirmed.