Fond du Lac C. & B. Co. v. Henningsen P. Co. 141 Wis. 70.

ell v. G. W. R. Co. 19 Mich. 336; Moulin v. Trenton Mut. L. & F. Ins. Co. 24 N. J. Law, 222; St. Clair v. Cox, 106 U. S. 350; 19 Cyc. 1267, 1268, and cases cited; Charter Oak L. Ins. Co. v. Sawyer, 44 Wis. 387; 13 Am. & Eng. Ency. of Law (2d ed.) 869 et seq. and cases cited.

For the respondent there were cited, besides other authorities: 10 Cyc. 924, 925, 928, 940; Jesler v. Steam P. Co. 131 N. C. 54, 42 S. E. 447; Pope v. Terre Haute C. & Mfg. Co. 87 N. Y. 137.

DODGE, J. It is of course true that the courts of this state cannot acquire jurisdiction over persons not present in the state, except for the purpose of adjudicating with reference to property or status here located. This is an inherent limitation upon the power and jurisdiction of the state under our form of government, and cannot be escaped by reason of local statutes declaring such power. Jarvis v. Barrett, 14 Wis. 591; Smith v. Grady, 68 Wis. 215, 31 N. W. 477; Witt v. Meyer, 69 Wis. 595, 35 N. W. 25; Renier v. Hurlbut, 81 Wis. 24, 50 N. W. 783; Moyer v. Koontz, 103 Wis. 22, 79 N. W. 50; Maxcy v. McCord, 120 Wis. 571, 98 N. W. 529, 98 N. W. 923; Fitch v. Huntington, 125 Wis. 204, 102 N. W. 1066; Pennoyer v. Neff, 95 U. S. 714; Goldey v. Morning News, 156 U. S. 518, 520, 15 Sup. Ct. 559. Hence, although our statute may in terms authorize a suit against a foreign corporation whenever the plaintiff resides in this state and the summons can be served upon some officer or agent of the corporation, those statutes must be ineffective to give jurisdiction unless the presence of such officer or agent within our borders amounts to presence of the corporation, for it is undoubtedly possible for an individual who, incidentally, is officer of a corporation to come into this state in his personal capacity without bringing the corporation with him. Goldey v. Morning News, supra; Conley v. Mathieson A. Works, 190 U. S. 406, 23 Sup. Ct. 728. It is however uniformly recog nized that when a person, corporate or natural, does place it

Fond du Lac C. & B. Co. v. Henningsen P. Co. 141 Wis. 70.

self within our territorial limits, jurisdiction over his or its person may be obtained to adjudicate personal liabilities to such extent as state statutes may authorize. So long as either maintains physical absence, this state has no right to insist that they must submit questions of mere personal liability to our courts, but when they voluntarily come within the state such immunity no longer exists. Curtis v. Bradford, 33 Wis. 190; Eingartner v. Ill. S. Co. 94 Wis. 70, 74, 68 N. W. 664; Disconto Gesellschaft v. Umbreit, 127 Wis. 651, 106 N. W. 821. A corporation ordinarily acts and moves in the person of some individual, and when any individual, officer, or agent is, within the authority committed to him, performing an act of the corporation, the latter must be deemed present physically in the person exercising its powers. While the affidavits in this case contradict each other, we see no reason to disagree with the conclusion of the trial court that the treasurer and manager of this corporation was in Fond du Lac negotiating adjustment of corporate liability on the very claim sued in this action. That such function is generally within the authority of such an officer can hardly be doubted, but that it was within Henningsen's authority is confirmed by other facts stated in the affidavits. Obviously had the negotiation proceeded to consummation the corporation would have acted. In other words, Henningsen at that time and for that definite purpose was the corporation, which, therefore, was present in this state. Hence there is no obstacle in the inherent limitations on the powers of the state, or in any prohibitions of the federal constitution, to the acquisition of jurisdiction by our courts by personal service of their process on the defendant present within our borders. The service in fact made was that authorized by our statute (subd. 13, sec. 2637, Stats. 1898), and was such as to satisfy all requirements of due process of law. Fey v. I. O. O. F. Mut. L. Ins. Soc. 120 Wis. 358, 98 N. W. 206; Phillips v. Portage T. Co. 137 Wis. 189, 118 N. W. 539.

By the Court.-Order affirmed.

Marlow v. Fond du Lac, 141 Wis. 74.

MARLOW, Respondent, vs. CITY OF FOND DU LAC, Appellant.

November 13-December 7, 1909.

Municipal corporations: Injury from defect in street: Notice: Contributory negligence.

1. Evidence that a mud hole nearly two feet deep, extending across the traveled track in a street, with an abrupt ascent at one end of about twenty inches where it joined the hard ground, had existed for years, and that before the accident frequent complaint thereof had been made to the street commissioner, is held to sustain a finding by the jury that the city had such notice of this condition that in the exercise of ordinary care it could have remedied the defect before the accident.

2. The question of plaintiff's contributory negligence in driving into a deep mud hole extending across the traveled track in a street is held, upon the evidence, to have been for the jury.

APPEAL from a judgment of the circuit court for Fond du Lac county: CHESTER A. FOWLER, Circuit Judge. Affirmed.

L. E. Lurvey, for the appellant, cited, besides other cases, Schrunk v. St. Joseph, 120 Wis. 223, 97 N. W. 946; 29 Cyc. 513; Devine v. Fond du Lac, 113 Wis. 61, 88 N. W. 913; Goldstein v. C., M. & St. P. R. Co. 46 Wis. 404, 1 N. W. 37; Hausmann v. Madison, 85 Wis. 187, 55 N. W. 167; Fisher v. Franklin, 89 Wis. 42, 61 N. W. 80; Collins v. Janesville, 111 Wis. 348, 87 N. W. 241, 1087.

O. II. Ecke and W. W. Hughes, for the respondent, cited Jung v. Stevens Point, 74 Wis. 547, 43 N. W. 513; Luedke v. Mukwa, 90 Wis. 57, 62 N. W. 931; and other cases.

TIMLIN, J. In this case the jury found: (1) That the street at the time and place in question was not reasonably safe for public use; (2) that the city had notice of this condition for such time prior to plaintiff's injury that in the exercise of ordinary care it could have remedied the defect before the accident; (3) the condition of the street was the proximate cause of the injury to the plaintiff; (4) there was

Marlow v. Fond du Lac, 141 Wis. 74.

no want of ordinary care on the part of the plaintiff contributing to his injury.

It is contended that there is no evidence to sustain the answer of the jury to the second question of the special verdict. The defect consisted of a mud hole or depression in the street from twenty to twenty-four inches deep, filled with soft mud to the top, and the hole extended entirely across the traveled track, and abruptly ascended at one end about twenty inches, where it joined the hard ground. This had existed for some years. When the mud was dry it formed no serious defect, but in very wet weather presented the condition of a depression filled to the top, or nearly to the top, with soft mud, into which a wagon would sink to a depth of nearly two feet to the hard bottom, and in crossing it the vehicle would reach the abrupt ascent before mentioned. Before driving in one could not tell how deep it was, or whether there was any danger in driving through it, and a witness testified that he had made complaint about this mud hole to the street commissioner of the city very frequently before the accident in question. We consider this sufficient upon which to rest the second question of the special verdict.

The main contention of appellant is that the plaintiff was guilty of contributory negligence on the undisputed evidence and notwithstanding the verdict of the jury to the contrary. The evidence on this point is that the plaintiff had never driven upon this street before, and that on the day in question, while he and his wife were driving along this street with a gentle horse, the horse walking slowly, they came to this inud hole. The further testimony of the plaintiff is as follows:

"Well, when we came there I saw a bad place there, a muddy place. And when I was pretty close on the north side of the road I stopped there, right close to that muddy place, and I told my wife it looked pretty bad-such a place—and she said: 'Yes; I think we better get out from the buggy.' I

Sharpe v. Hasey, 141 Wis. 76.

said: 'No; we better stay in.' And I told her the other side looked just as bad; that we pass right in the center so the mud lay even with the road. I thought it be more level there.

It looked pretty bad, but it didn't scare me. I wanted to make through. I thought it was at first all safe; that is the reason I passed. It looks pretty bad, but I didn't want to turn around and I passed through.'

Another witness, more familiar with the place, testified that it was "an innocent looking mud hole to look at, looked like a mud puddle."

The question of contributory negligence is ordinarily one for the jury. Upon the authority of Jung v. Stevens Point, 74 Wis. 547, 43 N. W. 513, and Luedke v. Mukwa, 90 Wis. 57, 62 N. W. 931, we consider that on the evidence above quoted the question of plaintiff's contributory negligence in the instant case was for the jury. Finding no error in the proceedings below, the judgment must be affirmed. By the Court.-Judgment affirmed.

SHARPE, Appellant, vs. HASEY and others, Respondents.

November 13-December 7, 1909.

Highways: Laying out: Offer of aid as inducement: Validity of order: Making and signing by supervisors: Evidence: Intent: Pleading: Amendment: Discretion.

1. Where a contribution or offer of pecuniary aid in case a highway shall be laid out is of such character or is made under such circumstances as would be likely to swerve the town board from its duties in the matter, it is against public policy and vitiates the action of the board; but no such result follows where the offered aid is so trifling and inconsequential in comparison with the cost of the proposed highway that it cannot reasonably be deemed to have been an inducement to the determination arrived at by the board.

2. An intent already formed is a fact and may be testified to like any other fact by the person who formed it.