Huck v. Chicago, St. P., M. & O. Ry. Co.

• Decision Date: 06 May 1958
• Citation: 4 Wis.2d 132,90 N.W.2d 154
• Parties: Uno Carl HUCK, Plaintiff, v. CHICAGO, ST. P., M. & O. RY. CO., Defendant, Doughboy Industries, Inc., Appellant, Chicago, R. I. & P. Ry. Co., et al., Interpleaded Defendants and Respondents.
• Court: Wisconsin Supreme Court

Page 154

90 N.W.2d 154

4 Wis.2d 132

Uno Carl HUCK, Plaintiff, v. CHICAGO, ST. P., M. & O. RY. CO., Defendant Doughboy Industries, Inc., Appellant Chicago, R. I. & P. Ry. Co., et al., Interpleaded Defendants and Respondents.

Supreme Court of Wisconsin.

May 6, 1958.

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

Philip Stringer, St. Paul, Minn., Harold D. Olson, Baldwin, Bender, Trump, Davidson & Godfrey, Milwaukee, Rodger S. Trump, Milwaukee, of counsel, for respondents.

CURRIE, Justice.

This appeal is concerned with a problem of construction of sec. 262.09(4), Stats. So far as material here such statute reads as follows:

'If the defendant is a foreign corporation * * * and (a) is doing business in Wisconsin at the time of service, * * * service may be made * * * by delivering * * * without the state a copy of the summons to any officer, director or managing agent of the corporation.'

While Rock Island's brief raises an issue as to whether its agent, upon whom service of process was made at Chicago, is a 'managing agent', counsel for such railroad stated in oral argument that such question has now been abandoned. This leaves as the only issue to be determined by this court that of whether Rock Island is 'doing business' in Wisconsin within the purview of sec. 262.09(4), Stats.

Laying aside for the moment any consideration of constitutional law and past court precedents defining the phrase 'doing business', there is no question but that Rock Island's extensive activities in Wisconsin constitute the carrying on of business in this state. As will be developed later in this opinion, we are satisfied that a holding by this court, that such business activities carried on in Wisconsin constitutes the 'doing of business' within the state within the meaning of sec. 262.09(4), does not offend either the commerce clause of the United States constitution or the due process requirement of the Fourteenth amendment. This being so, the problem with which we are faced narrows down to whether we should construe the statutory words 'doing business in Wisconsin' liberally from a purely rational and common sense approach, and hold that Rock Island's activities within the state constitute the doing of business here. Counsel for Rock Island strenuously contend that we should not, but should interpret such statutory words in the light of numerous past court decisions which have held that mere solicitation of business moving in interstate commerce by a foreign corporation within a state does not constitute 'doing business' within such state.

One of the principal cases relied upon by Rock Island is Green v. Chicago, Burlington & Quincy Railway Co., 1907, 205 U.S. 530, 533, 27 S.Ct. 595, 596, 51 L.Ed. 916, wherein the United States supreme court declared:

'The business shown in this case was, in substance, nothing more than that of solicitation. Without undertaking to formulate any general rule defining what transactions will constitute 'doing business' in the sense that liability to service is incurred, we think that this is not enough to bring the defendant within the district so that process can be served upon it.'

The rule of the Green case has frequently been followed in numerous decisions of federal and state appellate courts rendered over the years. Annotations, 60 A.L.R. 994, 101 A.L.R. 126, and 146 A.L.R. 941. Rock Island's brief points out that this court tacitly followed the above enunciated rule of the Green case in the two recent cases of Behling v. Wisconsin Hydro Electric Co., 1957, 275 Wis. 569, 83 N.W.2d 162, and Prime Mfg. Co. v. Kelly, 1958, 3 Wis.2d 156, 87 N.W.2d 788. This is because of statements made in the opinions in such two cases indicating that something more than mere solicitation was necessary on the part of a foreign corporation in order to constitute 'doing business' in a state other than that of its incorporation. However, in both of those cases this court upheld the service of process there under attack so that the statements therein relied upon by Rock Island are in the nature of dicta. We do not consider such dicta to be necessarily controlling on us in this appeal.

The history of sec. 262.09(4) is fully set forth in 30 West's Wis.Stats., Title 25, pp. 249-252, sec. 262.09. Effective May 1, 1953, this court, pursuant to its rule making power, repealed such subsection as it then stood and simultaneously promulgated it in the considerably revised form in which it now stands. 262 Wis. at pages v, viii. This was done upon the recommendation of the state Judicial Council.

This court is disposed to give statutes regulating procedure a liberal interpretation. Cash Crops Co-Operative v. Minnesota Valley Canning Co., 1950, 257 Wis. 619, 622, 44 N.W.2d 563, and Wisconsin Creameries, Inc., v. Johnson, 1932, 208 Wis. 444, 448, 243 N.W. 498. Another rule of statutory construction which we deem to be applicable here is that great consideration should be given to the object sought to be accomplished by a statute. State ex rel. Wisconsin Allied Truck Owners Ass'n v. Public Service Comm., 1932, 207 Wis. 664, 678, 242 N.W. 668. We have no hesitancy in holding that the objective of the statute was to give citizens of Wisconsin the right to make use of the courts of this state in instituting causes of action against any foreign corporation, which actually is carrying on business activities within the state, subject only to such limitations as are imposed by the United States constitution. We feel certain that neither the Judicial Council in proposing the changed wording of sec. 262.09(4), nor this court in promulgating the same, had any intention to hamstring such right by adopting into such subsection any definitions of 'doing business' laid down in past court decisions, which definitions contained limitations which mistakenly were assumed to be required by the United States constitution.

A federal court in the recent case of Haas v. Fancher Furniture Co., D.C.Ill.1957, 156 F.Supp. 564, was called upon to construe sec. 17(1)(a) of the Illinois Civil Practice Act enacted in 1955, Ill.Rev.Stat.1955, c. 110, § 17(1)(a) which conferred jurisdiction of the Illinois courts over causes of action against persons or corporations arising from 'The transaction of any business within this State'. Two foreign corporations there had attacked service of process upon them. The activities of these corporations in Illinois relied upon by the plaintiff as a basis for jurisdiction under such statute consisted of soliciting orders for goods to be shipped into Illinois from outside the state. The court in that case frankly stated (156 F.Supp. at page 567):

'There cannot be any doubt that it was the intention of the drafters of this section to assert the jurisdiction of the State of Illinois over non-resident defendants to the fullest extent permissible under the Due Process Clause of the Fourteenth Amendment and Article II, Section 2 of the Illinois Constitution, S.H.A. * * *

'The words of subsection (a) of Section 17 cannot be given a restrictive interpretation based upon the old Illinois 'doing business' cases. * * *'

The Illinois Civil Practice Act was drafted by a joint committee of the Illinois State and Chicago Bar Associations appointed by the Illinois supreme court. The reference in the above quotation from Haas v. Fancher Furniture Co. supra, to 'the intention of the drafters' undoubtedly refers to the 'Comments' of such joint committee which were printed as a footnote to sec. 17 of such Act. However, as previously stated herein, this court in promulgating the new sec. 262.09(4) in 1953 had no intent to place any limitations upon the phrase 'doing business', as employed in such statute, except such as required by the United States constitution. Therefore, we deem that we are free, as was the federal court in Haas v. Fancher Furniture Co., supra, to disregard definitions of 'doing business' set...