Lincoln v. Seawright

• Decision Date: 06 October 1981
• Docket Number: No. 79-1932,79-1932
• Citation: 310 N.W.2d 596,104 Wis.2d 4
• Parties: Timothy LINCOLN, a minor, by his guardian ad litem, Stephen P. Hurley, Dennis Lincoln and Eunice Lincoln, Plaintiffs-Respondents, v. Gary L. SEAWRIGHT, Defendant-Appellant-Petitioner, Theodore Toebaas, Stanford Ninedorf, Beverly Ninedorf and Phyllis Greenberg, Defendants.
• Court: Wisconsin Supreme Court

Page 596

310 N.W.2d 596

104 Wis.2d 4

Timothy LINCOLN, a minor, by his guardian ad litem, Stephen

P. Hurley, Dennis Lincoln and Eunice Lincoln, Plaintiffs-Respondents, v. Gary L. SEAWRIGHT, Defendant-Appellant-Petitioner, Theodore Toebaas, Stanford Ninedorf, Beverly Ninedorf and Phyllis Greenberg, Defendants.

No. 79-1932.

Supreme Court of Wisconsin.

Argued Sept. 8, 1981.

Decided Oct. 6, 1981.

Melissa Uelk Smith, Madison, argued, for petitioners; Bell, Metzner & Gierhart, S. C., Madison, on brief.

W. Dan Bell, Jr., Madison, argued, for respondents; Bell & Hurley, S. C., Madison, on brief.

BEILFUSS, Chief Justice.

This is a review of a decision of the court of appeals, 99 Wis.2d 806, 301 N.W.2d 461, which affirmed an order of the Circuit Court for Dane County, P. CHARLES JONES, Judge, denying a motion of the defendant, Gary L. Seawright, a nonresident, to dismiss for want of personal jurisdiction under Wisconsin's long-arm statute, sec. 801.05, Stats. 1977.

The facts are not disputed for the purposes of this review. On September 30, 1978, Timothy Lincoln, a minor, was bitten by a dog on the grounds of the apartment building where he lived with his parents in Madison, Wisconsin. The dog was a Japanese Akita named "Moose," which had recently come into the custody of Theodore Toebaas. Toebaas lived in the same building as the Lincolns, but was out of town on the day of the biting and the dog was being cared for by others in his absence.

Originally, the dog belonged to appellant Seawright. In the early 1970's, Seawright lived in Madison and became acquainted with Toebaas. During this period he gave Toebaas an Akita dog as a gift. However, this dog subsequently ran away and is not the dog which bit Timothy Lincoln.

Seawright moved from Wisconsin in 1972, eventually settling in New Mexico, where he works as a veterinarian. In July, 1978, Seawright owned the Akita dog named Moose which he shipped to Jerri Miller, a breeder in Texas. Upon receiving the dog, Ms. Miller discovered a defect in the formation of the dog's tail, which made it unsuitable for show purposes. She advised Seawright that she no longer wanted the dog.

Seawright remembered that Toebaas had lost the Akita which he had previously given him; he telephoned Toebaas and told him that he would send him another dog free of charge if Toebaas wanted one. Toebaas accepted the proposal and Seawright arranged to have Miller ship the dog Moose directly from Houston to Madison. When Toebaas went to pick up the dog in Madison he found the air freight charges of $150 were owing. He contacted Seawright, who wired the money to pay these charges.

After Toebaas informed him of the biting incident, Seawright asked Toebaas to have the dog put to sleep. Toebaas was reluctant to do so, but agreed upon Seawright's insistence. The dog in question, Moose, was alleged to have bitten another child while Seawright owned it in New Mexico. In their amended complaint the Lincolns allege that Seawright failed to warn Toebaas of the dog's potentially dangerous tendencies prior to sending it to Wisconsin. ¹

Appellant's only relevant contacts with the State of Wisconsin were those having to do with this transfer of the dog, Moose, from Houston to Madison. He arranged to have the dog shipped from Miller in Houston to Toebaas in Madison. He made several telephone calls to Toebaas in Madison to prepare the transfer. He also paid the air freight charges to ship the dog to Wisconsin. However, Seawright is not in the business of shipping dogs to Wisconsin or other states, nor does he ship dogs out of the state with any regularity. He has lived in New Mexico for several years, returning to Wisconsin infrequently for social visits. Appellant is a veterinarian and is not engaged in the breeding of dogs as a business. He received no consideration from Toebaas for the dog, nor was there any indication that he expected to gain from the transaction. The entire transaction appears to be a gift from Seawright to Toebaas, although there are indications that Seawright retained the right to use the dog for stud purposes, should the occasion arise.

The Lincolns began this action to recover damages for Timothy's personal injuries. In the amended complaint five defendants are named, including Seawright. The allegations against Seawright were that: (1) at the time of the biting he was the owner of the dog, either solely or in part; (2) he was negligent in shipping a dog to Wisconsin which he knew had previously bitten someone; (3) he failed to provide adequate warnings of the dog's dangerous propensities; and (4) he failed to insure adequate supervision over the dog, given its dangerous propensities.

Seawright moved to dismiss the complaint for lack of personal jurisdiction. The trial court held that personal jurisdiction over Seawright could be obtained under sec. 801.05(2), (3) or (4), Stats. On appeal to the court of appeals, the decision was affirmed, with the court of appeals basing its decision solely on sec. 801.05(3).

The relevant portions of Wisconsin's long-arm statute are as follows:

"801.05 Personal jurisdiction, grounds for generally. A court of this state having jurisdiction of the subject matter has jurisdiction over a person served in an action pursuant to s. 801.11 under any of the following circumstances:

"...

"(2) SPECIAL JURISDICTION STATUTES. In any action which may be brought under statutes of this state that specifically confer grounds for personal jurisdiction over the defendant.

"(3) LOCAL ACT OR OMISSION. In any action claiming injury to person or property within or without this state arising out of an act or omission within this state by the defendant.

"(4) LOCAL INJURY: FOREIGN ACT. In any action claiming injury to person or property within this state arising out of an act or omission outside this state by the defendant, provided in addition that at the time of the injury, either:

"(a) Solicitation or service activities were carried on within this state by or on behalf of the defendant; or

"(b) Products, materials or things processed, serviced or manufactured by the defendant were used or consumed within this state in the ordinary course of trade."

Recent cases construing the Wisconsin long-arm statute have detailed the type of analysis required in applying the statute. The burden is on the plaintiff to establish jurisdiction under the long-arm statute. ² However this court has also made it clear that the long-arm statute is to be liberally construed in favor of exercising jurisdiction. ³

Sec. 801.05, Stats., represents the attempt to codify the rules regarding minimum contacts which were developed in the line of United States Supreme Court cases beginning with International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). In that case the Supreme Court held that a defendant must have certain "minimum contacts" with the state in order to satisfy due process. Sec. 801.05 was drafted to attempt to codify the minimum contacts sufficient to comport with a defendant's right to due process.

This court has thus stated that compliance with the language of sec. 801.05, Stats., is "prima facie compliance" with the due process requirements. Schmitz v. Hunter Machinery Co., 89 Wis.2d 388, 401-03, 279 N.W.2d 172 (1979). See also: Fields v. Playboy Club of Lake Geneva, Inc., 75 Wis.2d 644, 653-43, 250 N.W.2d 311 (1977).

This does not mean, however, that the plaintiff's burden of proof is conclusively satisfied in all cases upon a showing of compliance with the statute. As we said in Hasley v. Black, Sivalls & Bryson, Inc., 70 Wis.2d 562, 577, 235 N.W.2d 446 (1975):

"The showing of coverage under one of the subsections of sec. 262.05, Stats., presumes that due process is met, subject to the objecting defendant's opportunity to rebut, especially through use of a five item due process jurisdictional contact analysis adopted in Zerbel (v. H. L. Federman & Co., 48 Wis.2d 54, 179 N.W.2d 872 (1970)). The burden is not on the defendant to prove lack of contact with this state as was erroneously required by the trial court in Afram (v. Balfour, Maclaine, Inc., 63 Wis.2d 702, 218 N.W.2d 288 (1974)), even though the motion to dismiss is produced by the defense; the defendant may dispute the contacts alleged or attack the demonstrated statutory compliance on due process grounds."

Therefore, compliance with sec. 801.05, Stats., raises a presumption of compliance with due process. This presumption may be rebutted by a defendant, especially through the use of the five-factor test for due process stated in Zerbel v. H. L. Federman & Co., 48 Wis.2d 54, 64-65, 179 N.W.2d 872 (1970). In Zerbel, this court adopted the following factors for a due process analysis in personal jurisdiction cases: the quantity of contacts with the state, the nature and quality of the contacts, the source of the cause of action, the interest of Wisconsin in the action, and convenience.

In applying these tests for personal jurisdiction to the facts in this case, we hold initially that neither subs. (2) nor (4) of sec. 801.05, Stats., may provide a basis for jurisdiction in this case. The court of appeals based its decision on sec. 801.05 (3), however the trial court also found jurisdiction to be proper under both subs. (2) and (4) of sec. 801.05. We hold that this case does not fit within either sub. (2) or (4). Sub. (2) deals with special jurisdiction statutes. In the revision notes by the reporter for the Judicial Council, Professor G. W. Foster, Jr., which have often been used by this court as an aid to interpreting sec. 801.05, Professor Foster writes that the purpose of sub. (2) is to preserve special statutes which confer grounds for personal jurisdiction. Wis. Annot., 1979, p. 56. As an example, he cites sec. 345.09, which specifically confers jurisdiction on nonresident motorists in actions arising out of the operation of motor vehicles in this state. No comparable...