Bazan v. Kux Mach. Co.

• Decision Date: 08 October 1971
• Docket Number: No. 173,173
• Citation: 190 N.W.2d 521,52 Wis.2d 325
• Parties: Hugo Alberto BAZAN, Plaintiff-Appellant, v. KUX MACHINE COMPANY, Inc., a foreign corporation, et al., Defendants-Respondents, and Cross-Appellants, Allen Bradley, Inc., a domestic corporation, Defendant-Respondent.
• Court: Wisconsin Supreme Court

Page 521

190 N.W.2d 521

52 Wis.2d 325

Hugo Alberto BAZAN, Plaintiff-Appellant, v. KUX MACHINE COMPANY, Inc., a foreign corporation, et al Defendants-Respondents, and Cross-Appellants Allen Bradley, Inc., a domestic corporation, Defendant-Respondent.

No. 173.

Supreme Court of Wisconsin.

Oct. 8, 1971.

This is an action for damages for personal injuries caused by the alleged malfunctioning of a die cast machine. After service of the pleadings and before trial on the merits, a series of motions was heard by the trial judge. Motions were made by plaintiff-appellant, Hugo Alberto Bazan, (hereinafter plaintiff) and defendant-respondent, Kux Machine Company, Inc., (hereinafter defendant).

Plaintiff appeals and the defendant cross-appeals from the trial judge's rulings on the various motions.

Counsel for defendant-respondent, Allen Bradley, Inc., joined in plaintiff's brief and presented oral argument on appeal.

Kivett & Kasdorf, Milwaukee, Donald E. Koehn, Sheboygan Falls, for plaintiff-appellant.

Ames, Riordan, Crivello & Sullivan, Milwaukee (for Kux & Travelers Indemnity), Hayes & Hayes, Milwaukee (for Allen Bradley, Inc.), for respondents.

CONNOR T. HANSEN, Justice.

Plaintiff is a licensed doctor of dentistry in his native country of Chile. 'While studying the English language prepatory to taking the necessary examinations to become licensed as a doctor of dentistry in the State of Wisconsin he was employed as a die cast machine operator at Die Cast Division of Tecumseh Products Company in Sheboygan Falls, Wisconsin.' On December 8, 1966, while operating a die cast machine manufactured by the defendant, the plaintiff sustained injuries when the machine suddenly activated, crushing his left arm. The malfunction was allegedly caused by a failure of the electrical switch mechanism. Allen Bradley, Inc., is alleged to have provided defendant with electrical switches used in the operation of the machine and is named as a party defendant.

Defendant did not have a certificate of authority to do business in Wisconsin. Consequently, on November 4, 1969, a summons and complaint were served on the Secretary of the State of Wisconsin, pursuant to sec. 180.847(4), Stats. On November 7, 1969, a summons and complaint were also served on defendant at its last known address, by leaving a copy with one Francis J. Gerlitz, officer, and by personal service on James J. Kux, the last known president of the company, pursuant to sec. 262.06(5).

Defendant answered, objecting to jurisdiction of the court on the ground that it did not do business in Wisconsin. The answer asked judgment dismissing the complaint for lack of jurisdiction, or in the alternative, on the merits.

April 27, 1970, plaintiff moved the court for an order declaring that valid service had been made and that the court had jurisdiction over defendant. The motion was supported by an affidavit which recited that the die cast machines were purchased from the defendant in 1961, and an affidavit containing no dates which reflected that defendant had periodically rendered service and maintenance on the machines.

June 8, 1970, plaintiff moved the court for an order to strike the answer of the defendant. The motion was based upon the allegation that the defendant had transacted business in Wisconsin and did not have a certificate of authority on file, pursuant to sec. 180.847, Stats.

June 9, 1970, the trial court granted plaintiff's motion to order defendant to produce all documents, advertising, and names of personnel, relative to the sale, delivery or servicing of any goods or merchandise of the defendant in Wisconsin, and the names and addresses of all purchasers thereof. The response to this discovery order contained items of advertising, one dated 1962, the other items undated; the names of three of the personnel of defendant, including James J. Kux, with no dates specified, and related that two of these former personnel were presently working for the Kux Machine Division of the Wickes Corporation, Des Plaines, Illinois.

June 15, 1970, the trial court made an oral decision on plaintiff's motion, which was subsequently reduced to writing, dated July 24, 1970, and provided:

1. 'That the plaintiff's motion regarding the service of process and jurisdiction of the Court over the defendant, Kux Machine Company, Inc., be and the same hereby is granted.'

2. 'That valid service was had pursuant to Section 180.847 of the Wisconsin Statutes on the defendant, Kux Machine Company, Inc.'

3. 'That this Court has jurisdiction over the defendant, Kux Machine Company, Inc.'

4. 'That the plaintiff's motion to strike the answer of the defendant, Kux Machine Company, Inc., considered by this Court as equivalent to a demurrer, be and the same hereby is denied.'

5. 'That the defendant, Kux Machine Company, Inc., be allowed to amend its answer to set forth as a jurisdictional defense that the action was not commenced within the time limited by law as set forth in Section 180.787 of the Wisconsin Statutes.'

6. 'That the plaintiff may timely amend its complaint to include Wickes Corporation as a party defendant subsequent to any appeal that may be taken from this order.'

Between the date of the oral decision and the written decision on plaintiff's motion, and pursuant to leave of the court, the defendant filed an amended answer objecting to the jurisdiction of the court on the ground that the summons and complaint were not served within the time limited by law in that defendant did not exist for more than two years preceding the date of service of the summons and complaint. Plaintiff demurred to the amended answer on the ground that defendant did not have legal capacity to maintain an answer under sec. 180.847(1), Stats.

August 12, 1970, the trial court overruled the plaintiff's demurrer to the amended answer.

October 6, 1970, the trial court filed an order amending its order of July 24, 1970, to further provide: 'That the oral motion of the defendant, Kux Machine Company, Inc., objecting to the jurisdiction of this Court on the grounds of the two-year statute of limitations under Section 180.787 be and the same hereby is denied.'

Plaintiff appeals from the order overruling plaintiff's demurrer to the amended complaint.

Defendant cross-appeals from an order granting plaintiff's motion that service of process on defendant was valid and that there was jurisdiction over defendant, and also from the order denying defendant's motion to dismiss for want of jurisdiction.

An amended complaint was filed which named Travelers Imdemnity Company, alleged liability insurer of Kux Machine Company, Inc., as party defendant. Plaintiff subsequently agreed to an abatement of the cause of action against Travelers pending a determination of the liability of the defendant. Therefore, Travelers Indemnity Company is not a party to this appeal.

JURISDICTION.

From the very beginning of these proceedings, the defendant has challenged the jurisdiction of the trial court. During the process of the determination of the several motions, many peripheral issues were considered. However, the pivotal issue as to the status of the defendant corporation as it related to the date of plaintiff's injury, i.e., December 8, 1966, was never resolved in the manner prescribed by statute and the case law of this state. We deem this to be essential in determining the issue of jurisdiction. The procedure to be followed in the trial court is set forth in sec. 262.16, Stats.:

'262.16 Raising objection to personal jurisdiction, general appearance. * * *

'(2) How and when objection shall be made. An objection to the court's jurisdiction over the person is not waived because it is joined with other defenses or motions which, without such objection to jurisdiction, would constitute a general appearance. Such objection shall be raised as follows:

'* * *

'(c) By answer in all other cases.

'* * *

'(3) Jurisdiction issues tried to court. All issues of fact and law raised by an objection specified in sub. (2) shall be tried to the court without a jury in advance of any issue going to the merits of the case. * * *'

In Pavalon v. Thomas Holmes Corp. (1964), 25 Wis.2d 540, 547, 131 N.W.2d 331, 334, this court considered the foregoing statutory provisions, and stated:

'In order to carry out the underlying intent of this provision so as to permit one in appellant's position to attack the personal jurisdiction of the court and also demur to the sufficiency of the complaint, we hold that the jurisdiction issue may be raised by motion served with the demurrer. Such motion should be supported by an accompanying affidavit setting forth all material facts relied upon by movant to show the court's lack of personal jurisdiction. Where such a procedure is followed it is then the duty of the trial court under sub. (3) of sec. 262.16, Stats., to try the jurisdictional issue first before passing on the demurrer which raises an issue on the merits. We deem it advisable to point out that at such trial of the jurisdictional issue the allegations of a verified complaint are not to be considered as evidence tending to establish jurisdiction except for the limited purpose of determining the type of action.' ¹

The issue of jurisdiction cannot be determined from the present record and a jurisdictional trial is necessary. The initial issue to be determined at a jurisdictional trial must concern the date of the alleged dissolution of the defendant corporation as it relates to the time of the accident.

It is the rule that when a corporation becomes defunct by dissolution in the state of its creation, it is defunct in every other state unless such other state has also granted it a charter. Chicago T. & T. Co. v. Forty-One Thirty-Six W. Building Corp. (1937), 302 U.S. 120, 58 S.Ct. 125, 82 L.Ed. 147; 17 Fletcher, Cyc. Corp. (perm. ed.), p. 935, sec. 8580, and cases cited therein; Restatement, Conflict of Laws, p. 228, sec. 158. This court...