Dettman v. Nelson Tester Co.
| Decision Date | 07 April 1959 |
| Citation | 95 N.W.2d 804,7 Wis.2d 6 |
| Parties | Iva J. DETTMAN, Individually and as Special Adm'rx of the Estate of Fred Dettman, deceased, Respondent, v. NELSON TESTER CO., INC., Appellant. |
| Court | Wisconsin Supreme Court |
Langer & Cross, Baraboo, for appellant.
Vaughn S. Conway and Kenneth H. Conway, Baraboo, for respondent.
Appellant, an Iowa corporation with offices in Waterloo, Iowa, is the manufacturer of the Nelson Leakage Tester, Model A5567, 110 V. and 60 cycles.
Fred Dettman was a resident of Sauk county, Wisconsin. It is alleged that on November 2, 1954, while working in his employment at Edwards Pontiac Company in Baraboo and using the Nelson Tester, Dettman received an electrical shock causing injuries which resulted in his death on November 13, 1954. It is further alleged that the machine was inherently dangerous; that this fact was known or should have been known to the defendant; and that no warning of the danger was given to users of the machine.
Appellant maintains a small manufacturing plant at Waterloo, Iowa. All the manufacturing and office work of the company is done by the two individuals upon whom service of the summons was made, Paul Briner and Richard Olson, its vice-president and secretary, respectively. Louis Nelson is president of the corporation. None of the officers are residents of Wisconsin. Service of the summons was on the company at its place of business in Waterloo.
Sec. 262.09(4), Stats. provides:
'If the defendant is a foreign corporation (including one created by or under any act of Congress) and (a) is doing business in Wisconsin at the time of service, or (b) the cause of action against it arose out of the doing of business in Wisconsin, service may be made in accordance with the provisions of s. 180.825 or by delivering within or without the state a copy of the summons to any officer, director or managing agent of the corporation.'
The testing machine being used by Fred Dettman at the time he received his injuries was sold to Edwards Pontiac Company by one Clarence M. Morgan in August, 1953.
The question involved is whether appellant was doing business in the state of Wisconsin within the meaning of sec. 262.09(4), Stats. The trial court held that it was.
Clarence Morgan testified he had had a contract with the appellant company continuously from sometime prior to 1953. There is in evidence a contract between Morgan and the company dated August 1, 1955 and denominated 'Independent Dealer's Contract' wherein Morgan, as 'dealer,' is assigned the territory described as 'Northwest portion of Wisconsin and Chicago, Illinois area (Radius of 150 miles around Chicago) (Exception)--Territory assigned Lyle Bergstrom June 1,--1957.' In said contract Morgan agreed 'to act as Dealer in said territory and to devote his fully time and energy to the buying and selling of Company equipment and merchandise.' It was also agreed that 'the Dealer is to call on All prospective buyers in his assigned territory in a thorough manner;' that 'To fulfil contract Dealer must sell Company merchandise in the amount of $1352.00 * * * retail price per month;' that for a period of three years after termination of the contract the dealer would not sell any competitive commodity or equipment in the territory. The contract provides that mail orders received by the company from Morgan's territory will be credited to his account to apply on his next purchase of merchandise.
Under the contract Morgan was to pay cash for all merchandise ordered by him and shipments were to be made F.O.B. Waterloo, Iowa. He had to notify the company twice each month of all his sales by sending in the original sales slip and a card containing the purchaser's name, description and quantity of merchandise sold, Morgan's signature and the purchaser's signature, nature of business of the purchaser and date of sale. An identical card, except for the signatures, was to be sent to the local service center. Mortgan was required to leave with each purchaser a guaranty card which he signed on behalf of the company.
There is also provision in the contract permitting Morgan, upon termination of the contract, to return to the company for refund any merchandise he may have on hand.
The service centers referred to are shops under contract with the appellant to repair Nelson products at the company's expense during the guaranty period and at the owner's expense outside of the guaranty period, the service center to buy all parts and supplies from the company. Morgan arranged for the establishment of the two service centers in Wisconsin. According to his testimony, he contacted them, persuaded them to service Nelson products and advised the company of their interest, whereupon the company entered into service contracts with them. The names and addresses of the service centers in Wisconsin are printed on the back of the instruction book put out by the company for distribution with machines sold.
Morgan testified that the company supplied him with order books, sales literature and bulletins. The contract provides that all literature given to the dealer has the value of $50, which will be charged to the dealer in the event of termination of the contract unless the literature is returned. Morgan testified he solicited testimonials on the machine from his customers and used them in selling. Such testimonials, the evidence shows, were sent in to the company where they were reproduced for distribution to dealers generally for assistance in making sales. Paul Briner, appellant's vicepresident, testified that the testimonials are not addressed to the dealers but to Nelson Tester Company.
Morgan testified that he operated from a house trailer (purchased with money loaned by the president of the company), and for about two years lived in Like Geneva, Wisconsin and had his daughter in school there. He devotes his full time to selling the Nelson Tester and handles only one other item, the Hoit Meter, which is also supplied to him...
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