Bond v. Harrel

• Decision Date: 04 April 1961
• Citation: 13 Wis.2d 369,108 N.W.2d 552
• Parties: , 98 A.L.R.2d 330 Mrs. Joseph (Virginia) BOND and Roswell Bond, Plaintiffs-Respondents, v. Leona HARREL and Jesse J. Harrel, Defendants-Respondents, National Trade Publication Service, Inc., a foreign corporation, Defendant-Appellant.
• Court: Wisconsin Supreme Court

Page 552

108 N.W.2d 552

13 Wis.2d 369, 98 A.L.R.2d 330

Mrs. Joseph (Virginia) BOND and Roswell Bond, Plaintiffs-Respondents, v. Leona HARREL and Jesse J. Harrel, Defendants-Respondents,

National Trade Publication Service, Inc., a foreign

corporation, Defendant-Appellant.

Supreme Court of Wisconsin.

April 4, 1961.

Stafford, Pfiffner & Stafford, Chippewa Falls, for appellant.

Herrick & Sigl, Eau Claire, for plaintiffs-respondents.

HALLOWS, Justice.

The appellant contends: (1) That the court did not acquire jurisdiction by service on it in Missouri, and (2) that Jesse J. Harrel as a matter of law was an independent contractor and consequently any negligence of Harrel or his wife could not be imputed to the appellant.

A court may acquire jurisdiction over a foreign corporation under sec. 262.09(4), Stats. 1957, if the foreign corporation is 'doing business in Wisconsin' at the time of service or the cause of action against it arose out of 'the doing of business in Wisconsin' and the summons is served on an officer of the corporation outside the state. What constitutes doing business within the purview of this statute has been the subject of several recent decisions by this court. In view of the disposition which we make of the second contention of the appellant, it is not necessary to discuss the case law or the facts, which will be stated later. Under the test laid down in the International Shoe Co. v. State of Washington, 1945, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95, and followed by this court in Behling v. Wisconsin Hydro Electric Co., 1957, 275 Wis. 569, 83 N.W.2d 162; Huck v. Chicago, St. Paul, Minneapolis & Omaha Ry. Co., 1958, 4 Wis.2d 132, 90 N.W.2d 154; and Dettman v. Nelson Tester Co., 1959, 7 Wis.2d 6, 95 N.W.2d 804, the appellant had sufficient contact, ties and relation within this state to sustain jurisdiction. In passing, we point out that ch. 262, Stats. of 1957, which governs this case, has been revised effective July 1, 1960; the chapter now specifically sets forth which activities in the state by a foreign corporation are grounds for jurisdiction. The trial court was correct in holding the appellant was doing business in Wisconsin for jurisdictional purposes.

The affidavits and proof in support and in opposition to the motions consist of an adverse examination and deposition of the president of appellant, certain documents including the contract between the appellant and Jesse Harrel and affidavits of counsel based upon such testimony. A large portion of the affidavits of both counsel must be disregarded as constituting arguments, or facts not within the affiant's knowledge, or conclusions of law. On summary judgment, if the material facts are not in dispute and if the inferences which may reasonably be drawn from the facts are not doubtful and lead to only one conclusion, then only a matter of law is presented which should be decided upon the motion. See Voysey v. Labisky, 1960, 10 Wis.2d 274, 103 N.W.2d 9; Rabinovitz v. Travelers Ins. Co., 1960, 11 Wis.2d 545, 105 N.W.2d 807.

The material facts are not in dispute. The appellant is a Missouri corporation engaged in the business of soliciting and brokering magazines and trade journal subscriptions. It operates its business through 15 to 25 solicitation crews and with some 200 to 300 individual salesmen. The subscriptions are forwarded to appellant which then sends them to the publisher, with the publishers, in some instances, receiving no part of the subscription price, in others a small portion thereof, and in other instances paying the appellant something in addition to the subscription price for the orders. The crew managers hire and make their own contract for compensation with the crew members. The crews are free to move from place to place in the United States to make their house-to-house solicitations.

The appellant entered into a contract with defendant Jesse Harrel and another person whereby Harrel, designated an independent contractor and not an employee, and his crew were to sell subscriptions to magazines whose publishers the appellant represented as Field Representative. Harrel was to receive 70 per cent commission on the money received for the subscriptions, out of which he paid his crew members according to his agreement with them. By the terms of the contract, Harrel was to report all orders and make a full accounting of the monies collected, but was allowed to keep 50 per cent of the amount collected toward his commission. The balance of his commission was paid to him monthly. Subscriptions were paid in cash or by check. Those checks made payable to appellant were sent to the company but Harrel was to make good any bad checks. Subscriptions, when made, were binding contracts and were not subject to appellant's approval. Sales were to be reported daily so far as possible, but in practice Harrel reported weekly. Appellant furnished the receipt forms, report forms, envelopes and sales material, which were to be used by Harrel and his crew. Harrel was also furnished a field manager credential authorizing him to represent appellant and to engage sub-agents. Under this credential he had authority to register himself and the members of his crew as representatives of appellant in localities requiring registration for house-to-house canvassers. The contract could be canceled by either party upon breach and Harrel agreed to abide by appellant's policies, not to solicit subscriptions for any publications not authorized by appellant, and not to allow any untrue sales canvasses to be made by his crew.

Appellant had no sales meeting or training program. What training the crew members and crew managers had was either self-taught or gained from experience. Appellant furnished no cars or means of transportation to the crew or its manager and did not pay any of their expenses. It withheld nothing for income tax, social security or unemployment. There was no quota to be filled and Harrel's rate of commission did not depend upon the volume of sales. Appellant had no office or property, and was not licensed to do business, in Wisconsin.

Crews had been coming into Wisconsin for many years for a...