Summary
In Keske, the process server went to the offices of the defendant company and asked to see an officer, director, or managing agent of the company.
Summary of this case from Hagen v. City of Milwaukee Employee's Retirement System Annuity & Pension BoardOpinion
No. 45.
Argued March 26, 1973. —
Decided April 20, 1973.
APPEAL from an order of the circuit court for Milwaukee county: JOHN A. DECKER, Circuit Judge. Affirmed.
For the appellant there were briefs by Gibbs, Roper Fifield of Milwaukee and oral argument by Richard S. Gibbs.
For the respondent there was a brief by Zafis, Rummel Cahill and Andrew J. Zafis, all of Oconomowoc, and oral argument by Andrew J. Zafis.
Action by plaintiff-respondent Eugene Keske (hereinafter plaintiff) against defendant-appellant Square D Company (hereinafter Square D) and Coca Cola Bottling Company, defendant.
On November 20, 1969, a professional process server, P. J. Schmidt, delivered a summons and notice of object of action to the general offices of Square D which are located in the city of Milwaukee. The subject of this appeal concerns the sufficiency of that service. The notice of object of action which accompanied the summons recites that the plaintiff seeks damages for personal injuries sustained on November 23, 1966, as a result of defects in equipment manufactured and sold by Square D, said injuries allegedly occurring at the Coca Cola Bottling plant located in Milwaukee.
The affidavit of service which was notarized on November 20, 1969, states that Schmidt served Mr. "James Vetta (Director of Industrial Relations)" with the summons and notice. An amended affidavit of service, notarized on December 22, 1969, varies in part from the first affidavit in that following Vetta's title, the words "apparently in charge" are written. According to Schmidt, the amended return was necessitated by the fact that the office girl had not transcribed it correctly and the error was not detected until after he had already signed it.
On December 16, 1969, Square D appeared specially and moved to quash the service of the summons and object of action in that they were not served upon an officer, director or managing agent of the corporate defendant, and that Vetta, the person with whom the papers were left, was not the person in charge, all in derogation of sec. 262.06(5), Stats. The hearing on the motion disclosed that Schmidt went to the main reception area of the Square D plant and asked the woman at the switchboard to see an officer, director or managing agent of the corporation. The woman referred to was Lois Brickner, a personnel assistant in the department of industrial relations who was temporarily substituting as the receptionist. After informing her of his desire to serve a summons, Mrs. Brickner made a telephone call, whereupon she informed Schmidt that there was only one person to serve, Mr. Vaughn, and that he was not available. He then asked to see the person in charge of the office and at that time more calls were made.
Schmidt testified that Mrs. Brickner told him that Vetta was the person to serve process on and the party in charge. Mrs. Brickner testified, by deposition, that in her capacity as an employee of the industrial relations department, she, herself, was authorized to receive process in garnishments and had done so numerous times over the past fourteen years. She further testified that although she could not recall the exact conversation with Schmidt, she admitted that had a process server come in and said that he wanted to serve someone but didn't say about what, she would have sent him to Vetta because he was in charge and she would not know who to contact. Vetta testified that Mrs. Brickner called him and not knowing what the problem was in total and realizing that she was concerned about getting him out of the main lobby, he instructed that Schmidt be referred to him.
Schmidt testified that Vetta stated that he wasn't sure whether he should be served or not, and when he was asked who was in charge of the office, Vetta gave the vague answer that it "depends on what the situation is." Schmidt then asked him who there was between him and Mr. Vaughn in the managerial chain of command and he was told that there was no one in such a position, but that he (meaning Vetta) was not in charge of the plant. Schmidt asked him if he had ever accepted service before and Vetta stated that he had. At this point, Schmidt served Vetta as being "apparently in charge."
Vetta testified that he had accepted the process and that the department of industrial relations of which he was director, accepts process in garnishments, tax levies and "things of that nature" and normally he never sees these as his employees are instructed to receive them. He further testified that although he never had oral or written authorization from a director of the company to accept process in matters other than those referred to, he had, nevertheless, accepted process in June of 1969, which related to a products liability case. Vetta further testified that since the date when Schmidt served him in this action, he has likewise accepted service of process though he did not specify the nature of the action involved. The Milwaukee offices of Square D are composed of five separate departments, each with an individual department head and because he was the director of the department to which Mrs. Brickner is normally assigned, Vetta testified that it wasn't unusual that she should direct her problems to him. Although Vaughn's office was located only 40 to 50 feet away from Vetta's office, Vetta at no time made any effort to direct Schmidt there.
The trial court found that Schmidt was directed to the person ultimately served with process; that Schmidt reasonably concluded that Vetta was the person in fact in charge and with authority to accept process; that Vetta had accepted process before and after the questioned service and he had done so without objection from his corporate employer; and that the fundamentals of process, namely, notice and knowledge, had been adequately complied with. Based upon these findings of fact, the trial court concluded that the papers were served in compliance with sec. 262.06(5)(a), Stats., and, therefore, denied Square D's motion to quash the summons. Square D appeals from the order denying its motion.
The sole issue on this appeal is whether the service of process made in this case was sufficient to obtain personal jurisdiction over the corporate defendant.
The threshold questions in any dispute over the adequacy of service of a summons relate not only to the very purpose of the summons which is to give notice to the defendant of the pendency of an action against him, but also to whether the appropriate statutory procedures for service have been complied with. Heaston v. Austin (1970), 47 Wis.2d 67, 176 N.W.2d 309. Although Square D has never asserted that it did not have actual notice of plaintiff's action, it does argue and rightfully so, that ". . . when a statute prescribes how service is to be made, the statute determines the matter . . . ." Punke v. Brody (1962), 17 Wis.2d 9, 13, 115 N.W.2d 601. Therefore, the only question is whether sec. 262.06(5), Stats., relating to the service of summons on corporations has been complied with.
In material part, sec. 262.06(5), Stats., provides:
"262.06 Personal jurisdiction, manner of serving summons for. A court of this state having jurisdiction of the subject matter and grounds for personal jurisdiction as provided in s. 262.05 may exercise personal jurisdiction over a defendant by service of a summons as follows:
". . .
"(5) DOMESTIC OR FOREIGN CORPORATIONS, GENERALLY. Upon a domestic or foreign corporation:
"(a) By personally serving the summons upon an officer, director or managing agent of the corporation either within or without this state. In lieu of delivering the copy of the summons to the officer specified, the copy may be left in the office of such officer, director or managing agent with the person who is apparently in charge of the office.
"(b) . . .
"(c) By serving the summons in a manner specified by any other statute upon the defendant or upon an agent authorized by appointment or by law to accept service of the summons for the defendant." (Emphasis added.)
Both parties agree that Vetta was not an officer, director or managing agent of the corporation. Plaintiff contends, however, that Vetta was "apparently in charge of the office" and the trial court so found.
Square D substantially relies on the case of Carroll v. Wisconsin Power Light Co. (1956), 273 Wis. 490, 79 N.W.2d 1 in support of its contention that they were not properly served. In Carroll, this court held that the manager of one of many electricity generating stations owned by the company throughout the state was not a "superintendent" or "managing agent" within the meaning of sec. 262.09(3), Stats., 1955, which provided:
"If against any other domestic corporation to the president, vice president, superintendent, secretary, . . . or managing agent."
What distinguishes Carroll from the case at bar is that the statute involved in Carroll rested upon a determination of whether the person there served actually possessed the power and authority of the kind normally commensurate with the individuals of the enumerated class upon whom service had to be made. In Carroll, supra, the court, at page 494, stated:
"Both terms [superintendent and managing agent] relate to a person possessing and exercising the right of general control, authority, judgment, and discretion over the business or affairs of the corporation, either on an over-all or part basis, i.e., everywhere or in a particular branch or district." (Emphasis added.)
Sub. (5) (a), however, is framed in the alternative. If an "officer, director or managing agent of the corporation" cannot be personally served, then the summons can be left "with the person who is apparently in charge of the office." The use of the word "apparently" can only refer to what is apparent to the person actually serving the summons. Here, Schmidt was referred to Vetta by the receptionist, Mrs. Brickner, who, herself, testified that all process servers who would not state the precise nature of the action would be sent to Mr. Vetta because he was in charge and because she would not know who else to contact. Vetta himself testified that he had accepted service of summonses numerous times prior to November 20, 1969, and on at least one occasion it had been a summons in a products liability action against Square D, all without challenge by his corporate employer.
Although Vetta testified that he was not "in charge" the finding by the trial court that he appeared to be in charge is not against the great weight and clear preponderance of the evidence and should not be disturbed. Derusha v. Iowa National Mut. Ins. Co. (1970), 49 Wis.2d 220, 181 N.W.2d 481.
Square D contends that even assuming Schmidt was justified in drawing the inference that Vetta was "apparently in charge of the office," the "office" referred to in the statute is the office of the officer, director or managing agent of the corporation and not the general corporate offices. Although the trial court so concluded, it nevertheless stated:
". . . I think it may well be that in some instances it would be unreasonable for a process server to conclude that someone outside of the immediate geographical office of the officer, director, or managing agent was apparently in charge of `the office,' but I don't think that that is true in the instant case, where the process server was directed to Mr. Vetta, admittedly with no conclusive statement with regard to his authority to accept the process in question, but directed, nevertheless, for the resolution of his problem, to Mr. Vetta, and in spite of Mr. Vetta's disclaimer of being the `man in charge' in view of Mr. Vaughn's engagement and unavailability. I find it not unreasonable for the process server to infer and conclude that Mr. Vetta was in fact in charge, and I think that that inference is bulwarked by the circumstance that he had in fact accepted process the kind in question earlier and subsequently to the service in the specific instance."
The analysis of the statute by the trial court was correct. Although the statute refers to the "office" of the "officer, director or managing agent," this requirement loses significance where, as here, this office was but a few feet from the office of the individual actually served, and who the process server was specifically directed to serve in the temporary absence of the corporation officer. Moreover, to hold that while Vetta was authorized to accept process in matters relating to employee relations, while at the same time incompetent to receive process in other actions, would produce a situation whereby a process server becomes a participant in a game of "hide-and-seek" at the mercy of secretaries or anyone else who chooses to prevent him from accomplishing his task. Such a conclusion is manifest by the fact that at no time did Vetta direct Schmidt to Vaughn's office only a few feet away from his and the place it is now argued the summons should have been left.
We concluded that the process server's conclusion that Mr. Vetta was "apparently in charge of the office" was reasonable under the facts, and that the fundamentals of process, to wit: notice and knowledge, had been accomplished. We further conclude that sec. 262.06(5)(a), Stats., was complied with.
By the Court. — Order affirmed.