Brown v. Cleveland Tractor Co. , 265 Mich. 475 ( 1933 )

The plaintiff and appellee began a suit by summons against defendant and appellant, Cleveland Tractor Company, of Cleveland, Ohio, a corporation which was selling tractors for road work in Michigan, having a "distributor" in Michigan.

It employed Charles H. Wilt as a "traveling service supervisor calling on distributors to instruct the distributors' organization in the service and maintaining of tractors" and he carried cards, as the defendant knew, showing he was "a service representative of the Cleveland Tractor Company."

Plaintiff's suit was for personal injury to himself and also injury to his automobile caused by Wilt who was driving his own car for the use of which defendant paid him in the service of the company, in discharge of his duties.

Wilt was operating a car of defendant as aforesaid and in its service in Alger county, on a public highway. The summons was served on defendant pursuant to 1. Comp. Laws 1929, § 4790, by service on the secretary of State and was also served on Marcus S. McNabb, who defendant calls its "distributor," and provides in its written contract with him that:

"Nothing herein shall be construed as constituting the distributor the agent or the legal representative of the company."

The defendant appeared specially by attorneys and moved to dismiss the suit because there was no legal service of process.

After due hearing the circuit court denied the motion and defendant appealed. This court in Huckle v. Mt. ForestRabbitries, 253 Mich. 441, 443, cited the statute that "any person representing such (foreign) corporation in any capacity shall be deemed an agent within the meaning of this section." 3 Comp. Laws 1929, § 14094.

The decision of the circuit court should be affirmed, with costs.