217 Wis. 422 | Wis. | 1935
The relator is a corporation of the state of New York. In an action in the circuit court of Rock county, brought against H. E. France, the driver of an automobile, to recover damages for injuries received in a collision with another automobile on the ground of alleged negligence of France, the relator was joined with France as a defendant. France was a resident of Rockford, Illinois. Service was procured upon him as a non-resident motorist pursuant to sec. 85.05 (3), Stats., by filing copies of the summons and complaint in the office of the secretary of state. Like copies were so filed as and for service upon the relator. The relator appeared specially before the circuit court, objected to the court’s jurisdiction over it, and asked dismissal of the action as to it. The court overruled the objection and refused to dismiss as to the relator. The relator thereupon applied to this court for a writ of prohibition, prohibiting the circuit judge from proceeding with the case as against it. On the argument upon the application it was stipulated that, in the event that the application be granted, the petition for permission to commence the action should be taken as the complaint therein, the respondent should be deemed to have demurred thereto, and the cause should be determined upon the record made on the application.
The relator’s petition shows, in addition to the facts above stated, that France is the owner of the automobile he was driving, and that the relator had no interest therein or control thereover; that France is a salesman of plumbing and heating fixtures, specialties, and supplies manufactured or jobbed by the relator; that the relator is not licensed to do
The relator contends that under the facts above stated France is an “independent contractor” as distinguished from an agent of the relator; and the respondent contends that he is an agent for whose conduct the relator is responsible under the doctrine of respondeat superior.
Counsel seem agreed that the most potent factor in determining whether one is an independent contractor or an agent is where the control of the details of the work lies. Badger Furniture Co. v. Industrial Comm. 200 Wis. 127, 227 N. W. 288. From the above statement of facts it appears that the
The only ground on which the relator could be made a party through the substituted service provided by sec. 85.05
By the Court. — The respondent’s demurrer to the petitioner’s complaint is overruled and a peremptory writ of prohibition is issued.