Opinion
November 3, 1961 —
November 28, 1961.
APPEAL from an order of the circuit court for Milwaukee county: WILLIAM I. O'NEILL, Circuit Judge. Affirmed.
For the appellant there was a brief by Roman H. Papka and Kersten McKinnon, all of Milwaukee, and oral argument by Kenan J. Kersten.
For the respondent there was a brief by Bloomquist Lemke, attorneys, and C. Donald Straub of counsel, all of Milwaukee, and oral argument by Mr. Straub.
Service of summons on a corporation.
Plaintiff brought this action for damages for personal injuries against five defendants. One defendant was named in the summons and complaint as "K N Trucking, a corporation." The other defendants were other corporations in the construction business and Milwaukee county. Plaintiff alleged that he was a deputy sheriff of Milwaukee county; was injured April 1, 1953, while driving a squad car upon a highway then being repaired; that the defendants caused the highway to be unsafe and were thereby negligent, and maintained a nuisance.
On March 30, 1959, Deputy Sheriff Hillus left a copy of the summons and complaint with Edward Klemm, at his residence, and made a certificate that he had served them on "K N Trucking Co. by . . . delivering to and leaving with Edward Kleinto, a copartner, thereof, personally, a true copy . . ."
Counsel appeared specially for "defendant, K N Trucking" and moved that service be set aside. After hearing testimony, the court filed a decision and on May 27, 1960, entered an order setting aside the service and dismissing the action.
It appeared that in 1953 when plaintiff was injured, Klemm and two men named Niggemann were partners under the name of K N Trucking. On February 1, 1955, the partners organized a corporation named K N Trucking. Inc. The partnership was apparently dissolved and its liabilities assumed by the corporation. Klemm became vice-president. On March 29, 1955, a notice of plaintiff's injury was served upon Klemm. In 1956, the name was changed to K N Sand Gravel, Inc., by amendment of the articles of incorporation.
In June or July, 1958, Klemm and his associates sold their stock and resigned as directors and officers. New ones were elected, and a report of the new names filed with the secretary of state September 10, 1958. Before the change, Klemm's residence had served as a business office of the company, but thereafter the stationery and telephone listing were changed to show a new address, the same as was shown in a change of registered office, filed with the secretary of state and recorded. Customers were notified of the change.
Klemm remained an employee of the corporation. He was crane operator at a gravel pit and paid on an hourly basis. He had immediate charge of the work at the gravel pit, but had no authority over the business in any other respect.
There was some conflict in the testimony as to what was said when Deputy Hillus left the papers with Klemm. Klemm testified, "He had asked for K N Trucking, and I said, `It used to be,' . . . And I asked him what this was about and he had read and told me, and I said, `I was a partner of K N Trucking at the time — at the time of the accident but since that time it had — the names had been changed and it had — the stocks had been sold.'" Klemm also told him the address of the office, but that it would be closed at that time (about 6 p.m.). The deputy said he did not know what he should do, but ultimately left the papers with Klemm. Mrs. Klemm testified, "Well, he was asked whether this was K N Trucking and he said, `No, it used to be but we sold out,' and the office was on Seventy-Sixth street."
Deputy Hillus testified, after refreshing his recollection from notes made on the date of service, "Well, as near as I can remember as to the service of this summons and complaint, that when the party came to the door I asked if they were an officer of K N Trucking Company, to which he said, No, he isn't, and then he stated that he is a copartner of K N Trucking, and on that basis I served the summons and complaint."
Mr. Klemm later telephoned the general manager and told him about the papers. As directed, he forwarded them to the corporation's liability insurance company.
In a memorandum decision, the circuit court found that there was no intention on the part of Klemm to mislead the deputy sheriff and concluded that service on Klemm was not service on the corporation.
Plaintiff appealed. The appeal was perfected August 3, 1960, and return made to this court on October 10, 1960. The bill of exceptions was settled November 25, 1960, but not transmitted to this court until February 1, 1961. The matter would have been argued and decided by this court months ago but for delay of plaintiff's counsel in causing the return of the bill of exceptions and his further delay in filing his brief.
Plaintiff does not contend here that Klemm was one of the persons designated by statute to receive service binding on the corporation.
Sec. 262.09(1), (3), Stats. 1957.
Plaintiff does argue that he is entitled to a one-year extension of the period of limitations and that Klemm had apparent authority to accept service.
1. Extension of period of limitations. Plaintiff contends that Klemm knowingly gave false information to the process server, Frank Hillus, with intent to mislead him in the service of process, and that plaintiff is therefore entitled to a one-year extension of the statute of limitations under sec. 330.14, which provides as follows:
"The following actions must be commenced within the periods respectively hereinafter prescribed after the cause of action has accrued except that the period shall not be considered to have expired when the court before which the action is pending shall be satisfied that the person originally served knowingly gave false information to the officer with intent to mislead him in the performance of his duty in the service of any summons or civil process. In the event the court so finds the period of limitation shall be extended for one year."
We find no record of any motion by plaintiff to extend the period of limitation, nor does the order appealed from contain a denial of such motion, except by implication. The court did, however, find in the memorandum decision that Klemm did not intend to mislead the deputy sheriff.
Plaintiff asks us to determine that the deputy sheriff's testimony is more credible than that of the Klemms. There is no basis upon which we could make that determination. We think it readily apparent from the foregoing statement of facts that the finding referred to is not contrary to the great weight and clear preponderance of the evidence, and we therefore treat it as a verity. Thus plaintiff did not make out a case for an extension of time.
Estate of Kaiman (1961), 13 Wis.2d 201, 108 N.W.2d 379.
2. Apparent authority of Klemm. Plaintiff next contends that by retaining the name K N and by retaining Klemm in its employ, the corporation cloaked him with the apparent authority of an officer of the corporation.
This court has held:
"`If a third person, because of appearances for which the principal was responsible, believes and has reasonable ground to believe that the agent possessed power to act for the principal in the particular transaction, if such third person was, in the exercise of reasonable prudence, justified in believing that the agent possessed the necessary authority, then the principal is responsible to such third person the same as if the agent possessed all the power he assumed to possess.'"
Commonwealth Telephone Co. v. Paley (1931), 203 Wis. 447, 450. 233 N.W. 619; DeByle v. Roberts (1956), 273 Wis. 648, 79 N.W.2d 115; Idzik v. Reddick (1960), 10 Wis.2d 547, 103 N.W.2d 300.
At the time of the service of process the business office of the corporation was no longer located in Edward's home. The new address was carried on the letterheads and invoices of the corporation. When the change of address took place the corporation so informed its customers. When others were elected officers and directors of the corporation, a report was filed with the secretary of state setting forth the names and addresses of the new officers and directors, pursuant to sec. 180.795(2), Stats.
Further, according to Edward's testimony, he informed the deputy sheriff that he had sold out his interest in the corporation. Hillus admitted that Klemm said that he was no longer an officer.
In view of all these circumstances, we cannot conclude that the retention of the old name and continued employment of Klemm as a crane operator in charge of the work at the gravel pit gave reasonable ground to believe that Klemm had such authority as would constitute service on him service on the corporation.
By the Court. — Order affirmed.