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WISCONSIN REPORTS
i4o
CASES DETERMINED
IK THB
SUPREME COURT
OF
WISCONSIN
JuNB 3 — November X2, 1909
FREDERIC K. CONOVER
OmCIAL RsrORTBR
CHICAGO
CALLAGHAN AND COMPANY
Z910
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COPYKIGHT, 1910,
By JAMES A. FREAR,
SxasTAKT or Btatb or tbb Statb or Wnooirani,
For Hit l)«nftt df (he faopU of Mdd ftaU.
BTATB JOURNAL PBINTINa CX>MPANT,
PBUITBBB and STBRBOrrPKBfl^
MAOIBOM, Wn.
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JUSTICES
OF THB
SUPREME COURT OF WISCONSIN
DURING THB PERIOD COMPRISED IN THIS TOLUUB
JOHN B. WINSLOW
Em oJScio Chief Justice
ROUJET D. MARSHALL
JOSHUA ERIC DODGE
ROBERT G. SIEBECKER
JAMES C. KERWIN
WILLIAM H. TIMLIN
JOHN BARNES
Attorney General - - Frank L. Gilbert
Clerk ... Clarbncb Kbixogo
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MEMORANDUM.
Mr. Chief Jostioe Wmsuow took no part in the decision of the cases r^
ported in this volume on pages 214 to 887 inclusive. Mr. Justice Sis-
BsoKER took no part in the decision of the cases reported on pages 1 to 182
inclusive.
ERRATA. .
Vol. 139.
Page 60, line— 4, should read: John B. Hageriyt attomeji and TT. H.
Slafford, of counseli for the plaintiff in error Miller,
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TABLE
OF
CASES REPORTED.
A. B. Stange Co., Nehon v 657
AlberSy Scheunert v 578
Ashland, City of, v. MaciejewsJci €42
Statotes: ConBtraction: Changing words.
Auburn, Toum of, Berg v 492
Backus, Stark v. 557
Bacon, Estate of: McMichael v. Peterman 569
Wills: Constrnction: "Unmarried" persons: Public policy: Vested
fotare interests.
Badger State Lumber Co, v. 0. W. Jones Lumber Co 73
Executory contracts: Stopping performance: Remedies: Damages
for breach: Rights of parties, when determined: Entire con-
tracts: Grounds of rescission: Pleading: Waiver: Delivery L o. bw
can: When title passes.
Barber Asphalt Paving Co. v. City of Oshkosh 58
Statutes: Construction: "May:" Municipal corporations: Streets:
Improvements.
Bardon v. O'Brien 191
Deeds: Construction: Reservation or exception: Growing timber.
Bates V. Chicago, Milwaukee & St. Paul R, Co 235
Railroads: Injury to passenger: Unsafe baggage room: "Question
of engineering:" Duty of carrier: Questions for jury: Contribu-
tory negligence: Evidence: Credibility: Special verdict: Ques-
tions not submitted: Waiver: Decision by court: Appeal: R^
vsTBal: Prejudicial error.
Bauemfeind, Ferguson v 42
b
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vi CASES REPORTED. [140
Bekkedahl v. Village of Westby 230
Villages: Street improvements: Powere of Tillage board: Injunc-
tion: Pleading: Presumptions: Taking of private property.
Berg v. Toum of Auburn 492
Highways: Injuries from defects: Deposit of materials for repair:
Frightening horses: Negligence: Evidence: Special verdict.
Black, Seering v 413
Black Hawk Land Co,, Apped of 245
Blanke v. Village of Genoa Junction 211
Villages: Sidewalks: Ordinance fixing grades: Wrongful construc-
tion: RemovaL
Bodenheimer v. Chicago dt Northwestern B. Co 623
Railroads: Killing of horse on track: Evidence: Instructions iu-
vading province of jury.
Boettger, Luckow v 62
Boll, Kunz V 69
Bouchier v. Hammer 648
Tax titles: Notices of tax sale: Posting and publication: Affidavits:
Sufficiency: 'Tublic place:'' Nonoccupancy: Rights under suc-
cessive tax deeds: Appeal: Briefs.
Bowker v. Shields 330
Boynton, State ex rel, Hattabaugh v 89
Bretz V. R. Connor Co 269
Deeds: CJonstruction: Conveyance of standing timber: Time limit
on removal: Agency: Change in deed before delivery: When
grantors bound.
Burke, State ex rel. Joi^es v 524
Carpenter, In re: Sanborn v. Carpenter 572, 577
Incompetent persons: Guardians: Refusal to appoint: Who may
appeal: ** Person aggrieved."
Casanova, Napa Valley Wine Co, v 289
Cas^ Threshing Machine Co. v. Johnson 534
Castello V. Citizens State Barik of Manawa 275
Banks and banking: Oral contract of deposit: Revocation: Cashier
issuing his personal check instead of certificate of deposit: Re-
tention by depositor: Efitoppel: Waiver: Questions for jury.
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Wis.] cases REPORTED. vii
Cawker v. Central Bitulithic Paving Co J25
Pleading: Demorrer: Constitational law: Special laws: Defective
mmncipal contract: CnratiT^aet: BaUfieation by muDicipality:
Action: Quantum meruiL
Central Bitulithic Paving Co., Cawker v 25
Chicago dk Milwaukee Electric JB. Co., Mahn v 8
Chicago, Milwaukee & St. Paul R. Co., Bates v 235
Chicago, Milwaukee 4s St. Paul R. Co. v. Fair Oaks 334
Railroads: Highway crosBlngs: Maintenance: Planking: Condem-
nation: Compensation: Constitntional law: Police power.
Chicago, MUwckukee 4f St. Paul R. Co,, Schurind v. 1
Chicago dk Northwestern B. Co., Bodenheimer v 623
Chicago & Northwestern R. Co., Kunza v 440
Chicago, St. Paul^M. dk 0. R. Co., Lehman v 497
Citizens State Bank of Manawa, CasteUo v 275
Comstock, Kathan v 427
Connor Co., Bretz v 269
CrandaU, Fowler v 291
Dahi, State ex rel. Wagner v 301
Davem, State ex rel., v. Rose 360
Day V. Egertsen 629
Vendor and purchaser of land: Boundaries: Area: False represen-
tations: Rescission.
Bes Moines Life Ins. Co., McNaughton v 214
Doherty v. Wing 227
Fraad: Plattding: Collateral Mcarity: Banks.
Donovan v. State 570
Rape: Eridence: Corroboration.
DraUe v. Town of Reedsburg S19
Highways: Defects: Personal injories: Pleading: Variance: Nature
of injuries: Evidence: Opinions: Hypothetical questions: Cross-
examination: Discretion: Instructions to jury: Damages for loss
of time: Married women: Costs.
Duhring, Stark v 521
Duluth Street R. Co., Fosnes v 455
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viii CASES KEPORTED. [140
Egertsen, Day v 629
Eimerman, Johnson v 327
Evangelical Creed Congregation of Milwaukee, Marten v. 31
Evangelish Lutherish St. Martins Oemeinde v, Pruess. . . 349
Sabscriptions: Conditions: Acceptance: Withdrawal: BeligiouB
Bocieties: Corporations de facia.
Fair OaJcs, Village of, Chicago, M. & St. P. B.Co.v 334
Farrell v, Phillips 611
(1, 2) Larceny: N^otiable note: Felonious intent: Taking by
trick. (3, 4) Malicious prosecution: Probable cause: Special
verdict: Omitted finding: Appeal: Presumptions. (5) Witnesses:
Credibility: Conviction of contempt of court
Fenton v. Ryan. • • • 353
Villages: Boundaries and area: Legislative discretion: Questions
for courts: Constitutional restrictions: Water i
Ferguson v. Bauemfeind 42
Bankruptcy: Preferences: Trust funds; Appeal: Findings: Evi-
dence: Debtor and creditor: Trustee's title to bankrupt's prop-
erty.
Ferguson, Estate of: Joyce v. Russell 583
(1) Appeal: Review: Findings of fact, (2-^) PensioD moneys:
Exemption: Conversion into other property.
Flack, Forster v 48
Forster v. Flack 48
Vendor and purchaser: Rescission by vendor: Pleading: Relevancy
of allegations: Equity: Cancellation of instruments: Adequate
remedy at law: Rights of action: Executed contracts: Damages.
Fosnes v. Duluth Street R.Co 455
Street railways: Injury to passenger alighting from moving car:
Contributory negligence: Presumption as to intelligence.
Fowler v. CrandaU 291
Gates Land Co., Tilton v. 197
Oenoa Junction, Village of, Blanke v 211
Oilchrist v. Highfield 476
Corporations: Purchase of own capital stock.
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Wis.] cases REPORTED. ix
Glenesky v. Kimberly & Clark Co 52
Master and servant: Dotiee of master: Safe place to work: Negli-
gence: Personal injuries: Unguarded machinery: Duty to in-
struct servant.
Oreat Northern R. Co., McPherson v ^ 475
Cheat Northern R. Co., State ex rel, v. Railroad Comm.. . 181
Green Bay & Mississippi Canal Co. v. Telulah Paper Co.. 417
Mills and milldams: Navigable rivers: Flowage of lands: Limita-
tion of actions: Prescription: Equitable actions: Statute con-
strued: Lowering head at upper dam: Findings of fact: **Ad verse''
flowage: Landlord and tenant: Acquiring hostile title: EstoppeL
Oreen Bay, Oshkosh, Madison * 8. W. B. Co., Wolf v 337
O. W. Jones Lumber Co., Badger State Lumber Co.v 73
Hammer, Bouchier v €48
Harley v. Barley 282
Ejectment: Right to possession: Pleading: Defenses: NecesBary
parties, how brought in: Equitable estates: Dower and home>
stead rights of widow in possession.
Hattdbaugh, Stc^te ex rel., v. Boynton 89
Hatten Lumber Co., Malueg v 381
Highfield, Gilchrist v 476
J. I. Case Threshing Machine Co. v. Johnson 534
Sales: Breach of warranty: Rescissioii: Betom of goods: Waiver:
Authority of agent
J.L. Gates Land Co., TUton V 1S7
Johnson v. Eimerman 327
Johnson, J. L Case Threshing Machine Co.v 634
Jones, State ex rel., v. Burke 524
Jones Lumber Co., Badger State Lumber Co.v 73
Joyce V. BusseU 583
Karnes v. Karnes • • • • • 280
Appeal: Findings: Divorce: Desertion,
Kathan v. Comstock 427
Contracts induced by fraud: Avoidance: False representations:
Fkct or opinion: Tax titles: Limitation of actions: Cancellation
of deed: Judgment.
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X CASES REPORTED. [140
Kellogg Lumber & Mfg. Co., Webster Mfg. Co.v 341
Kienberger, State Bank of Reesemlle v 51T
Kimberly dk Clark Co., Olenesky v 52
Kingsley, Peterman v 66&
Koenig v. Koenig 61&
Pleading: Evidentiary matter: ContractB: Support of parent: Com-
pensation: Evidence: Queetiona for jary.
Kurtz V. BoU 69
Principal and surety: Building contracts: Discharge of surety by
advance payments.
Kum V. Piiz 69
Kuma V, Chicago it Northwestern B, Co. 440
Railroads: Injury to employee riding on engine: Relation of par-
ties: Line of duty: Contributory and comparative negligenoe:
Questions for jury.
LaJce Superior T. A T. B. Co,, State ex rd., v. B, B, Comm. 182-
Le Blond v. Tovm of Peshtigo 604
Equity: Injunction: Grounds of relief : Irreparable injury: Multi-
plicity of actions: Adequate remedy at law: Pleading construed:
Ejectment: Easements.
Lehman v. Chicago, St. Paul, M.iSk O.B.Co 49T
Master and servant: Injury from defective tools: Simple tools:
Duty to "inspect:" Contributory negligence: Questions for jury:
Proximate cause: Special verdict: Presumption as to findings
on omitted facts: Instructions to jury: Evidence: Immaterial
errors.
Lind V. Uniform Stave & Package Co 183^
Master and servant: Death of servant: Unguarded opening in vat:
Statutory duty of master: Negligence: Assumption of risk:
Contributory negligence: Evidence: Questions for jury: In-
structions: Placing guards after accident: Order of proof: Bur-
den of proof: Intoxication of decedent at other times.
Luckow V, Boeitger 62
Appeal from justices' courts: Judgment without new trial: Appeal
to supreme court: Review: Findings of fact: Presumptions: New
trial after reversal.
Ludlow, Monroe Teleplwne Co. v 1 510
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Wis.] cases REPORTED. xi
Lundstrum v. State • ■ 141
Habeas cwpuB: Keview of evidence on preliminaFy examination:
Complainant need not be examined: Directory statute: Con-
feesion.
Uaciejewski, City of Ashland v.. • • • 642
Madison, City of, Piper v 311
Mahn v. Chicago & Miltvaukee Electric R, Co 8
Vendor and purchaser of land: Sufficiency of conveyance tendered:
Contract for exchange: Remedies for breach: Equity: Adequacy
of remedy at law: Beteission: Lands occupied by railroad by
owner's consent: Cloud upon title.
Malueg v. Hatten Lumber Co 381
Contracts: Breach: Measure of damages: Sales: Partial delivery:
Payment: Waiver of damages: Termination of contract: Subse-
quent delivery: Market price.
Manitowoc and Northern Traction Co., Richards v 85
Marien v. Evangelical Creed Congregation of Milwaukee . . 31
(1) Supreme court: Restraining acts of party pending appeal
(2) Religious societies: Diversion of property to other uses:
Rights of members: Enforcement
Markley v. State 137
Intoxicating liquors: Sale without license: Evidence: Reading to
jury: Consent
Mathews v. Pufall , €55
Pleading: Striking out frivolous answer.
Matzewitz v. Wisconsin Central R. Co 643
Railroads: Liability to laborers for contractors: Notice of claim,
upon whom served: Assignment of claim: Real party in interest
McGregor, City of Milwaukee v 35
McMichael v. Peterman 589
McNaughton v. Des Moines Life Ins. Co 214
Life insurance: Agency contraet with insured: Credits thereunder,
how applied on premiums: Estoppel: Forfeiture: Waiver: Un-
lawful rebate of premiums through agency contract: Evidence:
Effect on policy: Lapse: Reinstatement
McPherson v. Oreat Northern R. Co ^S
Master and servant: Injury to servant: Assumption of risk: Om-
.tributory negligence^
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xii CASES REPORTED. [140
Merz.Witt V 29
Miller v. Sovereign Camp Woodmen of the World 505
Trial: Questions for jury: Death: Presumption from absence: Resi-
dence: Evidence: Parent and child: Life insurance: Waiver of
proofs of death.
MiluHiukee, City of, v. McGregor 35
Statutes: Prohibitions: Operation on the state: Title to state prop-
erty: Erection of buildings by state boards: Municipal regula-
tions: Building permita
Milwaukee, City of, State ex rel. Nowatmjf v. 3d
Milwaukee County, Stevenson v 14
Monaghan v. Northwestern Fuel Co 457
Appeal: Exceptions: Instructions to jury: Master and servant:
Injuries from unguarded machinery: Proximate cause: Contribu-
tory negligence: Evidence: Competency: Opinions of experts:
Improper remarks by counsel: Questions for jury: Excessive
damages.
Monroe Telephone Co. v. Ludlow 510
Telephone companies: Location of poles: Removal by city officers:
Obstruction in streets.
Monture v. Regling 407
Bales: Pleading construed: Special verdict: Evidence of market
value: Appeal: Errors affecting substantial rights.
MuUan, WUl of: FouAer v. CrandaU 291
Wills: Mental capadty: Undue influence: Evidence.
Napa Valley Wine Co. v. Casanova 289
Agency: Liability of principal for purchases: Secret agreement
limiting authority.
Nelson v. A. E. Stange Co 657
New trial: Grounds, how shown: Appeal: Res judicata: Reinstat-
ing verdict: One judge setting aside order by another: Bill of
exceptions: Settling after time for appeal has expired: Special
verdict: Sufficiency: Witnesses: Cross-examination: Master and
servant: Injuries: Excessive damages.
Northern Pacific B. Co., State ex rel., v. Railroad Comm. . 145
Northwestern Coal R. Co., State ex rel., v. WiUcuts 448
Northwestern Fuel Co., Monaghan v 457
Nowotny, State ex rel., v. City of Milwaukee 38
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Wis.] cases REPORTED. xiii
O'Brien^ Bardon v 191
O^Connor v. Queen Ins. Co. of America 388
Fire insnraiioe: What constitutes ''fire:" Cause of loss: Court
and jury.
Olson V. United States Sugar Co 309
Costs: Statute construed.
OlweU V. Travis • . . 547
Highways: Establishment: Statutory proceedings: Presumptions
from lapse of time: Ancient survey: Width: Change of limits:
User: Deviation of travel: Costs: Discretion.
Oshkoskf City of, Barber Asphalt Paving Co. v..... 58
Peshtigo, Town of, Le Blond v. 604
Peterman v. Kingsley 666
Partition: Who may maintain action: Estate in possession: Ten-
ants in common: Lessees purchasing interest: Parties.
Peterman, McMichael v • 589
Phaips, FarreU v 611
Piper v. City of Madison 311
Municipal corporations: Operation of waterworks: Liability for
negligence of employees.
PitB, Kune v • 69
Plowright, In re 512
Street and electric railways: Condemnation of streets: Delay: Pro-
ceedings by landowner: Limitation.
Prasser, WiU of 92
Wills: Constmction: Nature of estate created: Vested or contin-
gent? Intermediate trust estate: Legal estates: Seisin: Dower.
Prinslow v. State 131
Embezzlement of money: Evidence: Variance: Demand, when
necessary: New trial: Supreme court
Pruess, EvangeUsh Lutherish St. Martins Oemeinde v.. . 349
PufaU, Mathews v. 655
Queen Ins. Co. of America, O'Connor v 388
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xiv CASES REPORTED. [140
EaUroad Comimssion, StiUe ex rel. Oreat North, R. Co. v. 181
Railroad Comimssion, State ex rel. L. S. T. A T. R. Co. v. 182
Railroad Commission, State ex rel. Northern Pac. B. Co. v. 145
R. Connor Co., Bretz v 269
Redenius, State ex rel., v. Waggenson 265
Reedsburg, Town of, Dralle v 319
Regling, Monture v 407
Richards v. Manitowoc and Northern Traction Co 85
Execatory contracts: What constitntes a breach: Stopping per-
formance: Damages: Appeal: Affirmance.
Rickey v. Union Central Life Ins. Co 486
(1) Pleading: Election between causes of action. (2-6) Con-
tract of employment: Wrongful discharge: Insurance agency:
Damages: Loss of future profits: Reduction by other earnings.
Roach V. Sanborn Land Co. 435
Law of the case: Decision on former appeal: Tax titles: Setting
aside void tax deeds: Repayment by mortgagee of taxes paid by
claimant after acquiring equity of redemption: Appeal: Review:
Orders: Exceptions: Costs for printing.
Roberts v. Waukesha County 593
Taxation: Reassessment after refund on void tax sale: Misdescrip-
tion of land.
Rose, State ex rel. Davem v 360
Ross, Petition of: Bowker v. Shields 330
Wills: Construction: Descent and distribution.
Russell, Joyce v • 583
Ruth V. State 373
Criminal law: Information: Election between counts: Banks and
banking: False entries and false reports: Evidence: Expert ac-
countants: Conclusions fro(n books: Immaterial errors: Verdicts
Presumptions: Instructions to jury.
Ryan, Fenton v • 353
Sanborn v. Carpenter 572, 577
Sanborn Land Co., Roach v 435
Saunfer County, State ex rel. Williams v 634
Scheunert v. Albers 578
Conspiracy: Instituting inquiry as to sanity: Justification: Court
and jury.
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Wis.] cases REPORTED. xv
Schiuind v. Chicago, Milwaukee & St. Pavl R. Co 1
Railroadfl: Depot grounds: Qaeations for jary: Negligence: Lia-
bility for nnfenced track: Injariee to children: Contributory
negligence: Cause of injury: Instructions to jury: Excessive
damages.
Seering v. Black 413
Corporations: Dissolution: Refusal of directors to settle ai^irs:
Winding-up action by stockholder: Pleading: Joinder of causee
of action: Rights of creditors.
Shepard Drainage District: Johnson v. Eimerman 327
Navigable waters: Rights of the public: Artificial conditions when
become natural: Destruction in drainage proceedings.
Shields, Bowker v 330
Smith V. Smith 599
Indians: Heirship: Jurisdiction of state courts: Paternity of ille*
gitimates: Evidence: Declarations of parents: Statutes: Con-
struction.
Southern Wis, Power Co.: Appeal of Black Hawk L. Co.. 245
Constitutional law: Statutes: Private and local acts: Sufficiency
of title: Location of dam authorized to be built: Granting cor-
porate powers: Special act: Franchises not corporate: Assign-
ment to corporation: Statute construed: Purposes for which cor^
porations may be formed: Dams on navigable rivers: Legislative
grant: Who may question : Public purposes: Eminent domain:
Circuit judges: Holding court for one another: Orders at cham-
bers.
Southern Wis. Power Co. : Appeal of Whitndll 265
Southern Wis. B. Co., Vetter v 296
Sovereign Camp Woodmen of the World, Miller v 505
Spick V. State 104
Criminal law and practice: Jurors: Conscientious scruples: Cir-
cumstantial evidence: Instmctionsto jury: Evidence: Weight:
Competency: Questions for court and for jury: Harmless errors:
Homicide: Motive: Informer as to other offense by accused:
Heansay: Impeachment of witness: Rejection of his testimony
by jury: Presumption of innocence: Degrees of murder: In-
structions as to importance of agreeing on verdict
«
Splinter v. State 567
Criminal law: Pleading: Negativing exceptions: Statates: Sale of
adulterated milk.
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xvi CASES REPORTED. [140
Stange Co., Nelson v 657
Stark V. Backus 557
Sunday: Statutes: Construction: Barber shops: Constitutional
law: Restraining enforcement of criminal law.
Stark V. Duhring 521
Appeal: Assignments of error: Immaterial errors: Evidence:
Pleading: Counterclaim: Waiver of objections: Boundaries: Ad-
verse possession.
State, Donovan v « 570
State, Lundstrum v 141
State, Markley v 137
State, Prinslow v 131
State, Ruth v 373
State, Spick v 104
State, Splinter v 567
State, Weirich v .' 96
State ex rel. Davem v. Rose 360
Constitutional law: Executive officers: Discretion: Interference
by courts: Municipal corporations: Powers of mayor: Suspen-
sion of officers: Presumption of good faith: Mandamtu.
State ex rel. Great Northern R. Co. v. Railroad Cornm.. • . 181
State ex rel. Hattabaugh v. Boynton • 69
Extradition: Arrest on civil process.
State ex rel. Jones v. Burke • • • • • • 624
Statutes: Construction: Schools: Fixing amount to be raised:
Powers of school boards: General charter law.
State ex rel. Lake Superior T. dk T. B. Co. v. R. R. Comm. 162
State ex rel. Northern Pacific R. Co. v. Railroad Comm.. . 145
Railroads: Powers of Railroad Commission: Statutes construed:
Crossing of tracks: Fixing place: Safety devices: Apportion-
ment of expense: Condemnation proceedings: Compensation to
senior road, what to include: Constitutional law: Power to
amend charters: Vested property rights: Police power: Delega-
tion of legislative power: Judicial power: Review of orders of
Railroad Commission.
State ex rel. Northwestern Coal R. Co. v. WiUcuts 446
Certiorari: Taxation: Railroads: Property devoted to public use:
Common carriers.
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Wi8.] CASES KEPORTED. xvii
State ex rel. Nowoiny v. City of Milwaukee 3d
Health: Health officers: Necessary powers: Municipal corpora-
tions: Police power: Delegation to health officer: Licensing
I of milk: Revocation of license.
State ex rel. Bedenius v, Waggenson 265
Mandamiu: When writ issues: Compelling repairs on drainage
ditch: Lack of available funds.
State ex rel. Wagner v. Dahl 301
Officers: Vested rights: Power of removal: Review by courts:
Civil service law construed: Presumption as to obedience to
laws: Mandamui: Exercise of discretion: Costs.
State ex rel. WUUams v. Sawyer County 634
Constitutional law: Legislative power: Delegation to municipal-
ities: Statutes: Partial invalidity: Special municipal courts:
Powers of county board: Adoption of general law: Separate reso-
lution, when necessary: Mandatory statute: Rescission of reso-
lutions.
State Bank of BeeseviUe v. Kienberger 517
School districta: Officers: Contracts: Individual liability for sup-
phes purchased: Illegally issued school order.
Stevenson v. Milwaukee County 14
Courts: Inherent powers: Appointments: Necessary attendants:
Determination of necessity: Discretion: Compensation of special
attendants.
Stumm V. Western Union Telegraph Co 528
Telegraphs: Negligence: Nondelivery of message: Loss of contract:
Damages: Future profits: Instructions to jury: Proximate cause:
Appeal: Assignments of error: Evidence^. Letters: Copies.
Swenson v. Wells 316
Replevin: Plaintiff not the sole owner: Abatement: Bringing in
parties. *
T. D. Kellogg Lumber dt Mfg. Co. v. Webster Mfg. Co.. . 341
(1-4) Evidence: Account books: Principal and agent: Admissions
of agent: Self-serving declarations: Assignor and assignee.
(5) Appeal: Exceptions. (6) Tax titles: When agent may pur-
chase principars land.
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xyiii CASES REPORTED. [140
Tdulah Paper Co., Chreen Bay A Mississippi Cwnal Co, v, 417
TUton V. J. L. ChUes Land Co 197
Appeal: Review: Immaterial errors: Right to review t>7 party not
appealing: Findings, when disturbed: Entire contracts of em*
ployment: Brokers: Recovery of commissions: Breach of con-
tract: Wrongful attachment of land: Measure of damages: Puni-
tory damages.
Travis, dwell v 547
Uniform Stave eft Package Co., Lind v 183
Union Central Life Ins. Co., Rickey v 486
United States Sv^ar Co., Olson v 309
Vetter v. Southern Wisconsin B. Co 296
Street railways: Collision with vehicle near track: DoAy to look
and listen for car: Contributory negligence: Questicm of law:
Special verdict: Inconsistent findings: Changing answer.
Waggenson, State ex rel. Bedenius v 265
Wagner, State ex rel., v. Dahl 301
Waukesha County, Boberts v 593
Webster Mfg. Co., T. D. Kellogg Lumber db Mfg. Co. v. . . 341
Weirich v. State 98
Construction of penal statutes: " Public highways:" Toll roads:
Automobiles: Speed.
Wells, Swenson v 316
Westby, Village of, BekkedaU v 230
Western Union Telegraph Co., Stumm v 528
White V. White 538
Husband and wife: Alienation of affections: Parties: Evidence:
Declarations of husband: Appeal: Harmless error: Punitory
damages: Excessive damages.
Whitnail, Appeal of 265
Willcuts, State ex rel. Northwestern Coal B. Co. v 448
Williams, State ex rel., v. Sawyer County 634
Wing, DoJierty v 227
Wiscoiisin Central B. Co., Matzewitz v 643
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Google
Wis.] cases REPORTED. xix
Witt v. Merz 29
Appeal and error: Review: Findings of referee, when disturbed. .
Wolf V. Green Bay, Oshkosh, Madison & S. W. R, Co 337
Courts: Presumption of regularity in proceedings: Appeal: Hann-
lees error: Railroads: Condemnation of land: Determining rights
of mortgagee: Damages: Evidence: Opinions: Qualification of
witnesses.
Woodmen of the World, Sovereign Camp of, MUler v 505
Digitized by
Google
CITATIONS BY THE COURT.
CASES CITED.
Abrohami ▼. Bevfllon 129 W.
235 ----- 291
A. C. Conn Co. ▼. Little Suam-
icoL.Mtg.Co.74W.652 255.329
Achtenhagen y. Watertown 18
W. 331 • - • - 184 190
Adams y.Beloit 105 W. 363 636*, 637
Akerly v. VUae 15 W. 401 - 11
Alexander ▼. State 48 Ind. 394 560
Allaby v. Manston £. & Co.
135W. 345 - - - -262
Allen V. Allen 114 W. 615 438, 651
American T. Co. ▼. Grerman F.
Ins. Co. 74 Md. 25 - 392, 403
Anderson ▼. C, St P., M. A
0. R. Co. 87 W. 195 - 188, 189
V. Fetzer75W.562- - 346
V. Horlick^B M. M. Ca 137
W.569 629
V. Savoy 137 W. 44 • • 385
V. Sloane72W.566. - 208
Anderton v. Milwaukee 82 W.
279 - - - 245, 249-251
Appleton Mfg. Co. v. Fox River
RCo. 111W.465. - . 286
Appleton W. Co. ▼. Appleton
132W. 563 - - - -29
Ariraond v. Green Bay <fc M.
C. Co. 35 W. 41 - - . 423
Armonr y. Brazeau 191 HI. 117 501
Atkinson v. C. & N. W. B. Ca
119 W. 176 - - - . 5
y. Goodrich T. Ca 60 W.
141 57
Atlanta <!^ W. B. <fc C. Aaso. y.
Smith 141 W. 377 - - 478
Att'y Gen. v. Railroad CO0. 35
W.425 258
Austin V. Drew 4 Camp. 360 390-
302, 394, 399-403, 405, 406
Avery v. Judd 21 W. 262 - 438
Babcock v. a A N. W. R. Co.
107 W. 280 - - - - 12
V. Montgomery Mut Ins.
Co. 6 Barb. 637 - - - 403
Badger State L. Co. t. Q. W.
Jones L. Co. 140 W. 73 - 88
Bading y. Milwaukee £. B. d
L. Co. 105 W. 480 - - . 326
Baker v. Estate of McLeod'79
W. 534 - - - • • 97
v. Madison 62 W. 187 470, 472
V. State 120 W. 135 - 129, 130
Baltimore <& P. R. Co. y. Cum-
berland 176 U. 8. 232 - • 189
Baltzer v. C, M. <& N. R Co.
89 W. 257 - - - - 8
Banderob y. Wis. Cent B. Ca
133 W. 249 . - - 240,241
Barber v. State 50 Md. 161 - 569
Barker v. W. U. TeL Co. 134
W. 147- - - - 530,531
Bartlett v. £au Claire Co. 112
W.237 639
Bateman v. Johnson 10 W. 1 - 11
Bates v. C, M. <fc 8t P. R. Ca
140 W. 235 -
Baugh v. Barrett 69 Iowa 495
Beavers v. Ma Pac. R. Ca 47
Neb. 761 - - - .
Befay v. Wheeler 84 W. 135 -
Bell V. State 104 Ala. 79 • -569
Beloit, D. L. A J. R. Co. y.
Macloon 136 W. 218 - 515, 516
Benson v. Waukesha 74 W. 31 234
Berg V. C, M. & St. P. R Ca
50 W. 419 - - . - 8
Bernhardt v. Rice 98 W. 578 647-8
Bethlehem I. Ca v. Weiss 100
Fed.45 239
Beveridge V. Welch 7 W. 465 - 208
Birmingham W. A E. Co. y.
Elyton L. Co. 93 Ala. 549 -
Blackburn v. Reilly 47 N. J.
Law 290 ....
Black River F. D. Asso. y.
Ketchum 54 W. 313 -
Black Kiver Imp. Co. v. Hol-
way 87 W. 584 .
v. La Crosse B. & T. Co.
54 W. 659 - - - 261, 262
503
586
471
346
51
207
261
258
Digitized by
Google
Wis.]
CITATIONS.
XXI
BlombeiK v. Stewart 67 W. 455
Board of Comm'rs v. Stout 136
lnd.53
Bohn V. Racine 119 W. 341 -
Bonaparte v. C. & A. R. Co. 3
Fed. Cas. 821
Booth V. Ableman 20 W. 602 -
V. Dear 96 W. 516 -
V. Ryan 31 W. 45 -
Boston &' A. R. Go. v. Cam-
bridge 159 Mass. 283 -
Boetwick v. Mut. L. Ins. Co.
116 W. 392 - - 66,67,278,279
Boyd V. Harris 176 Pa. St
484 239
V. Milwaukee 92 W. 456 - 29
Boyington v. Sweeney 77 W. 55
18
188
101
208
417
11
- 159
80,
85
576
543
Boynton v. Dyer 18 Pick. 1 -
Brader v. Brader 110 W. 423 -
Brady v. N. W. Ins. Co. 11
Mich. 425 - ... 390
Briard y. Goodale 86 Me. 100 - 576
Brickies v. Milwaukee L., H. <&
T. Co. 134 W. 358 - - 12
Bridal Veil L. Co. v. Johnson
30Oreg. 205- ... 454
Briggs V. North A. Sl M. Ins.
Co. 53 N. Y. 446 - - - 391
Brown v. Balfour 46 Minn. 68 588
▼. Berry 47 111. 175 - - 72
▼. Cohn 88 W. 627 - - 285
V. Griswold 109 W. 276 - 66
▼. Warner 116 W. 358 - 346
Brunkow v. Waters 131 W. 31 66
Buckner v. Hutchings 83 W.
299 609
Bulkley v. Williamstown 3
Gray 493 - - - - 509
Bull V. Caae 41 App. Div. 391 588
Bullard v. Goodno 73 Vt. 88 - 587
Bullmaster v. St Joseph 70
Mo. App. 60 - - - 315
Bum ham v. Norton 100 W. 8 23
Busse V. Rogers 120 W. 443 - 6
Butte. A- A P. R. Co. V. M. V.
R. Co. 16 Mont 504 - 164, 454
Byrne v. State 12 W. 519 - 569
California Ins. Co. v. Union C.
Co. 133 U. S. 387 - - - 393
Qdteaux v. Mueller 102 W. 525 478,
484 485
Cameron v. White 74 W. 425 - ' 491
Campbell v. State 111 W. 152 - 129
Campshure v. Standard Mfg.
Co. 137 W. 155 - - - 662
Gannon v. Phoenix Ins. Co. 110
Ga.503- - - 392,403,405
Garion v. Greenfield 130 W.
342 - - - . 494 49Q
Carney v. Gleissner 62 W. 493 318,
543
Carpenter, In re, 140 W. 572 - 577
Case V. Hartford F. Ins. Co. 13
111.676 392
Castello V. Landwehr 28 W. 522 188,
189
Cawker ▼. Cent B. P. Co. 133
W.29 27
V. Milwaukee 133 W. 35 26, 29
Cawley v. La Crosse City R.
Co. 101 W. 145 -. -
Champane v. La Crosse C. R
Co. 121 W. 554 .
Chapin v. Crusen 31 W. 209 -
Chapman v. Ingram 30 W. 290
V. Miller 52 Ohio St 166 -
Charley v. Potthoff 118 W. 258
Chase v. Woodruff 133 W. 555
Chicago y. Selz, Schwab & Co.
202111.545 ... -
Chicago Anderson P. B. Co. ▼.
Rembarz 51 III. App. 543 -
Chicago & A. R. Co. v. J., L.
& A. R. Co. IW) III. 388
Chicago, B. & N. R. Co. v. Por-
ter 43 Minn. 527 -
Chicago A E. I. R. Co. v. Dris-
coll 176 111. 330 - - -
Chicago A G. W. R. Co. t.
Armstrong 62 III. App. 228 -
Chicago L. Ins. Co. v. War-
ner 80 111. 410 -
Chicago, M. A St P. R. Co. ▼.
Milwaukee 89 W. 506 -
V. 97 W. 418 - 158, 163,
335,337
Chicago A N. W. R. Co. v. For-
est Co. 95 W. 80 - - - 452
V. Morehouse 112 W. 1 262, 454
V. 0., A. A B. W. R. Co.
107 W. 192 - - - - 452
Chicago, St P., M. AO. R. Co.
V. C, M. ASt P.R. Co. 113
W. 161 165
— V. Douglas Co. 122 W. 273 452,
454
Chicago A W. I. R Co. y. R
C. K. Co. 115 111. 375 - - 164
Child V. Bemus 17 R. L 230 - 41
Chippewa B. Co. v. Durand
122 W. 85 - . - - 29
Chippewa River L. Co. v. J. L.
Gates L. Co. 118 W. 345 -
Chopin V. Runte 75 W. 361 -
Church V. Joint School Dist
55 W. 399 - -
300
456
165
80
306
386
346
815
8
- 165
454
239
- 223
y.
. 452
653
289
- 606
Digitized by
Google
ZXll
CITATIONS.
[140
Cincinnati, I. & W. R. Co. ▼.
Connersville 170 Ind. 316 - 165
Clap V. Draper 4 Maes. 266 - 195
Clark V. Clifford 25 W. 597 84, 206
Y. Farrington 11 W. 306 - 485
Clark's Estate 61 Hun 619 - 509
Clifford V. State 58 W. 477 • 126
Cobb V. Smith 38 W. 21 - - 422
Cohn V. Plumer 88 W. 622 - 206
V. Wausau B. Co. 47 W.
314 • - - - - 262
Colbert v. State 125 W. 423 122, 377
Cole v. Clarke 3 W. 323 - - 438
" V. D., S. S. & A. R. Co.
104 W. 460 - - - - 4
Cole, Estate of, v. Beurbaos
102 W. 1 - - - - 574
Collins V. Janesville 99 W. 464 469
V. 117 W. 415 - - 188
Comm. y. Benge 13 Ky. Law
Rep. 591 .... 569
V. Collins 2 Cush. 556-564
V. Dale 144 Mass. 363 - 564
V. Dextra 143 Mass. 28-564
V. Essex Co. 13 Gray 239 157-8
V. Gateley 126 Mass. 52 - 134
V. Harman 4 Pa. St. 269 - 113
V. Hart 11 Cush. 130 - 569
V. Has 122 Mass. 40 - 564
V. Nagle 117 Mass. 142 - 564
V. Osgood 144 Mass. 362 - 564
V. Shelly 2 Kulp ( Pa. ) 300 569
V. Starr 144 Mass. 359 - 564
V. Wilkinson 33 Mass. 175 101,
102
Comptv V. C. H. Starke D. k
D. Co. 129 W. 622 - - 6
Conn Co. v. Little Suamico L.
Mfg. Co. 74 W. 652 . 255, 329
Connor ▼. Marshfield 128 W.
280 372
Conroy v. C, St P., M. A 0.
R. Co. 96 W. 243 - - - 240
Conway v. Mitchell 97 W. 290 628
Cook V. Allee 119 Iowa 226 - 586
Coolidge V. Hallaaer 126 W.
244 • • - - 242 662
Cornell T. State 104 W. 627 - ' 324
Cornell Univ. v. Mead 80 W.
387 431
Court Officers, In re, 3 Pa. Dist
Rep. 196 - ... 18
Cowan V. Lindsay 30 W. 586 . 507
Cowdery v. Hahn 105 W. 455 71
Craig V. People ex reL Nevill
47 111. 487 . - - 101, 102
V. Wells 11 N. Y. 315 - 195
Crane v. Linneus 77 Me. 59 - 587
Crans y. White 27 Kan. 319 • 587
Crawford Co. v. Iowa Co. 2 '
Pin. 368 . - - - 20
V. Le Clerc 3 Pin. 325 . 18
Crow V. Brown 81 Iowa 344 - 5S6,
588
Curran v. A. H. Stange Co.
98 W. 598 .... 323
Curry v. C. A N. W. R. Co. 43
W. 665 5
Curtis V. Helton 109 Ky. 493 - 587
Dahlke v. 111. Q. Co. 100 W.
431 57
Dab I man v. Milwaukee 130 W.
468 288
Damkoehler v. Milwaukee 124
W. 144 234
Dancy D. Dist, In re, 129 W.
129 ... . 261,330
Dartmouth College Case 4
Wheat 518 . - - . 174
Diaubmann ▼. City Council 39
N. J. Law 57 • . . 609
Davis V. Nuzum 72 W. 439 . 432
Davison v. Davison 71 N. H.
180 51
Dean v. Clark 81 Iowa 753 - 586
Deisenrieter v. Kraus-Merkel
M. Co. 97 W. 279 458, 462, 532
Delamatvr v. M. & P. du C. R.
Co. 24* W. 578 - - - 241
Delie v. C. A N. W. R. Co. 51
W. 400 - . - - .322, 323
De Pauw v. Oxley 122 W. 656 606
Detroit v. D. & H. P. R. Co. 43
Mich. 140 ... - 160
Diana S. Club v. Lamoreux 114
W. 44 - . - 252, 255, 3.30
Diefenback v. Stark 56 W. 462 206
Dingman v. State 48 W. 485 - 627
District of Columbia v. John-
son 165 U. S. 330 - . - 37
Dix V. State 89 W. 250 . - 134
Dobbs V. Kellogg 53 W. 448 - 28.5
Dodge Co. Comm'rs v. Chand-
ler 96 U. 8. 205 . . 101, 102
Dollar Sav. Bank v. U. 8. 86 U.
S. 227 - . . - 37, 38
Donner v. Genz 129 W. 245 - 66
Douglas Co. V. Sommerl20 W.
424 20
V. Walbridge 38 W. 179 . 51
Dowd V. C, M. & St P. R. Co.
84 W. 105 . - - .240
Dowling V. Lancashire Ins. Co.
92 W. 63 - 167, 171, 636, 637
Dralle v. Reedsburg 130 W. 347 326
Dresser v. Lemma 122 W. 387 244
Dreuteer v. Smith 56 W. 292 - 653
Digitized by
Google
Wis.]
CITATIONS.
XXlll
Da Gate v. Brighton 133 W.
628 664
Duffy V. Radke 138 W. 38 - 469
Duloth, S. S. & A. R Co. v.
Douglas Co. 103 W. 75 452, 455
Dummer v. Milwaukee K R.
& L. Co. 108 W. 589 . - 299
Dupee V. Boeton W. P. Co. 114
Mass. 37 .... 485
Du Pont V. Davis 35 W. 631 - 285,
287
Durkee v. Janesville 26 W. 697 245,
249, 250, 253, 256, 257
Dyer Co. v. Railroad Co. 87
Tenn. 712 ... - 158
Ean V. C, M. & St P. R. Co.
101 W. 166 . - . - 662
Eastern R Co. v. McCord 136
W. 249 156
Eastern Wis. R d L. Co., /n
re, 127 W. 641 - - - 154
Eastern Wis. R & L. Co. v.
Hackett 136 W. 464 - - 159
Eaton V. D., L. A W. R. Co. 57
N. Y. 382 - . . - 447
Eberts v. Fisher 44 Mich. 551 668
Eckert V. McKee 9 Bush 355 586-7
V. State 114 W. 160 - 126
Eggleeton v. Columbia T. R
^ 82 N. Y. 278 - - - 495
Elkins E. R Co. v. W. M. R
Co. 163 Fed. 724 - - .164
Elmergreen v. Weimerl38 W.
112 415
Ely V. Cram 17 W. 537 - . 372
V. Teech 17 W. 202 - . 628
Emerson v. Schwindt 108 W.
167 818
Emery v. State 92 W. 146 - 142
V. 101 W. 627 - 118, 124
Emmons V. Sheldon 26 W. 648 469
Engeldinger ▼. Stevens 132 W.
423 . - . - 79, 85, 88
Ermentront v. Girard F. & M.
Ins. Co. 63 Minn. 305 - 894, 399
Ewald V. C. A N. W. R Co. 70
W. 420 443
Evcleehimer ▼. Van Antwerp
'13W. 546 - . . - C53
Falkner v. Guild 10 W. 563 . 340
FallsMfg.Co. v.OcontoRImp.
Co. 87 W. 134 255, 261, 262, 329
Farmer A Sons v. Turner 64
Iowa 690 ... - 586
Farrar v. Bridges 3 Humph.
566 51
Faurote v. Carr 108 Ind. 126 - 587
Faust ▼. Am. F. Ins. Co. 91 W.
158 510
Fay v. Rankin 47 W. 400 - 346
Feidschneider v. C, M, & St
P. R. Co. 122 W. 423 - 458, 462
Ferguson v. Truax 132 W. 478 121
Ferris v. Kilmer 48 N. Y. 300 291
Fezler v. W. & S. F. R Co. 85
Minn. 252 - - - - 4
Fick V. C. A N. W. R Co. 68
W. 469 300
Field V. Elroy 99 W. 412 - 311
Figge ▼. Bergenthal 130 W.
594 478
Files V. B. A A. R Co. 149
Mass. 204 • . • - 444
Fisher v. Moolick 13 W. 321 • 287
Fitzgerald v. State 50 N. J. Law
475 134
Flanders ▼. Wood 24 W. 572 - 606
Fleming V. Northern T. P. Mill
ia5 W. 157 - - - - 67
Flint A P. M. R Co. v. D. A
B. C. R Co. 64 Mich. 350 - 164
Fivnn V. State 97 W. 44 - - 12^)
Folk V. Milwaukee 108 W. 359 :^14
Folschow V. Werner 51 W. 85 583,
585-588
Forster, W. Co. v. F. MacKin-
non Mfg. Co. 130 W. 281 - 531
Foshay v. Glen Haven 25 W.
288 - - - - • 494
Foster v. Byrne 76 Iowa 295 - 586
Fountain City D. Co. v. Peter-
son 126 W. 512 - - 79,88
Fox V. Union T. Co. 59 App.
Div. 363 - . - - 101
V. Wilkinson 133 W. 337 538
▼. Zimmermann 77 W.414 348
Fraker v. Reeve 36 W. 85 647, 648
Frankev. Mann 106 W. 118 - 244
Franklin L. Ins. Co. ▼. Wallace
93 Ind. 7 - . - - 224
Friend v. Garcelon 77 Me. 25 587
FritBche V. Fritsche 77 W. 270 609
Fromme v. O'Donnell 124 W.
529 85
Fuchs V. Treat 41 W. 404 - 285
Fulton Co. V. M. & W. R Co.
21I1L338 . • - -640
Gamble ▼. Queens Co. W. Co.
123 N. Y. 91 - - - 478
Ganson v. Madigan 13 W. 67 80, 81
V. 15 W. 144 - 80, 82, 83
Gardiner v. Tisdale 2 W. 153 - 608
Gay v. Milwaukee E. R A L^
Co. 138 W. 348 - - - 664
Geisinger v. Beyl 80 W. 443 - 348
Digitized by
Google
XXIV
CITATIONS.
[140
German Am. Ins. Co. v. Hy-
man 42 Colo. 156 - - 301, 393
Gibbons v. German Ins. & Sav.
Inst. 30 111. App. 263 - 391. 403
Gilbert v. Dutruit 91 W. 661 - 643
Gill V. Homrighaueen 79 W.
634 190
Gillctt V. Treganza 13 W. 472 601
Gil man v. Philadelphia 3 Wall.
713 261
Girard L. Ins., A. <fe T. Co. v.
Mut L. Ins. Go. 97 Pa. 8t 16 223
Gleason v. Waukesha Co. 103
W. 225 - - - - 59, 61
Glettler v. Sheboyean L., P.
A R. Co. 130 W. 137 - - 663
Glidden v. Meyer 110 W. 1 - 206
Godfrey v. Godfrey 127 W. 47 466
Golden v. Glock 57 W. 118 - 272
Goodwin v. Merrill 13 W. 658 206
Goree v. Day 99 W. 276 - - 416
Grand Trunk W. R. Co. v.
R.R.Comm.40Ind.App.l68 166
Grant Univ. v. Bentley 117 W.
260 352
Green v. Hanson 89 W. 597 - 206
Griswoid V. Nichols 126 W. 401 347
Gross V. Heckert 120 W. 314 - 386
Grosse v. C. & N. W. R. Co. 91
W. 482 4
Grundy v. Janesville 84 W.
674 189
Guetzkow V. Michigan Mut L.
Ins. Co. 105 W. 448 - - 637
Guetzkow Bros. Co. v. A. H.
Andrews & Co. 92 W. 214 - 385
Gunther v. Ullrich 82 W. 222 432
Habenicht v. C, St. P., M. d
0. R. Co. 126 W. 521 - - 4
Had ley v. Baxendale 9 Ezch.
341 385
Hagan ▼. McDermott 134 W.
4})0 - - - • - 288
Hale V. State 58 Ohio St 676 - 570
Halifey v. Waukesha Springs
Sanitarium 128 W. 438 - 662
Halstead v. Warsaw 43 App.
Div. 39 496
Hamilton y. McPherson 28 N.
Y. 72 88
V. Probate Court 9 R. I.
204 - - - . 575,677
Hanlin v. C. & N. W. R. Co.
61 W. 515 - - - - 12
Hanlon v. Milwaukee E. R. <fc
L. Co. 118 W. 210 - -300
Hardwick v. Hardwick 130
Iowa 230 • • • . 544
Hardy v. Milwaukee St R Co.
89 W. 183 ....
Harrigan v. Gilchrist 121 W.
127
Harrington v. Rutherford 38
Fla. 321 ....
V. Smith 28 W. 43 -
Hart V. Moulton 104 W. 349 -
V. Smith 44 W. 213- 650, 651
Hartford v. N. P. R. Co. 91 W.
374
Hathaway ▼. Baldwin 17 W.
616
Hathorn v. Robinson 96 Me. 33
Hawkefi v. Slight 110 W. 125-
Hayes v. Mich. Cent R. Co.
Ill U. S. 228
V. Oshkosh 83 W. 314 -
Hayward v. Clark 50 Vt 612 -
Hayward R. Co. v. Duncklee
30 Vt 29 - - - -
Heddles v. C. A N. W. R. Co.
74 W. 239 -
Hegar v. C. A N. W. R. Co. 26
W. 624 287
Heim v. First Nat Bank 76
Neb. 831 . - - -
Helmke v. Thilmany 107 W.
216
Hencke v. Ellis 110 W. 532 -
Hennen, Ex parte, 13 Pet 225
..^_ 13 pg^^ 230
Hicks V. Smith 77 W. 146 -
Hildebrand v. Ajn. F. A. Co.
109 W. 171 - - 84, 205, 206
Hilgers v. Qninney 51 W. 62 - 651
Hill V. Buffington 106 W. 525
V. Chipman 59 W. 211 -
V. Glasgow R. Co. 41 Fed.
610
V. Reno 112 111. 154-
Hinckley v.PittsburghB.S. Co.
121 U. 8. 2(54 - - .
Hissem v. Johnson 27 W. Va.
644 - - - - -
Hofer V. State 130 W. 576 -
Hoffman v. King 58 W. 314 -
Hogan V. C, M. & St P. R.
Co. 69 W. 139 -
V. Winnebago T. Co. 121
W. 123 300
Holvoke Co.v. Lyman 15 Wall.
500 157
Horicon D. Dist, In re, 136 W.
227 - - - 255, 329, 330
Horner v. Yance 93 W. 352 - 645
Hourigan v. Norwich 77 Conn.
358' 315
House, Heirs of, 132 W. 212 599, 603
456
416
51
101
432
101
657
588
66
&
314
586
347
471
27a
662
67
3G&
303
272
438
385
160
668
8a
587
571
82
- 300
Digitized by
Google
Wis.]
CITATIONS.
XXV
Howard v. Beldenville L. Co.
1;I4 VV. (W4 - - - - 4^9
Howe V. Genin 57 W. 268 - 654
Hove V. C. & N. W. R. Ck). 67
W. 1 190
Hull V. N. W. Mut L. Iiifl. Co.
39 W. 397 - - - - 223
Hunt V. Hazelton 5 N. H. 216 668
Hnpfer v. Nat. D. Co. 119 W.
417 118
Hurlbutv. Marshall 62 W. 590 417
HI. Cent. R. Co. v. Griffin 80
Fed. 278 - - - - 240
Indermaaer v. Dames 19 Eng.
Ral. Cas. 64 - - - - 240
Ingereoll v. Seatoft 111 W. 461 348
Ins. Co. V. Dutcher 95 U. S.
269 223
Inten?tat« Coram . Comm'n v.
C. G. W. R. Co. 209 U. 8. 108 159
Isaacson v. Wis. TeL Co. 138
W. 63 503
Janitor of Supreme Court, Inre,
35 W. 410 - - - 18, 21
Jarvis v. Silliman 21 W. 599 - 650
Jennings v. Lvons 39 W. 553 - 206
Jensen v. State 60 \V. 577 - 564
Jilsun V. Stebbin8 41 W. 235 - 346
Johanson v. Webster Mfg. Co.
139 W. 181 - - - - 457
John O'Brien L. Co. v. Wilkin-
8onll7W. 468 . - - 85
Johnson v. Doorman 63 W. 268 423
V. Elkins 90 Ky. 163 - 587
V. Meeker 96 N. Y. 93 - 88
V. State 129 W. 146- - 126
Jones V. Collins 16 W. 594 - 430
V. Monson 137 W. 478 - 545
V. Roberts 84 W. 465 - 601
J. 8. Keator L. Co. v. St. Croix
B. Corp. 72 W. 62 - 261, 262
Jung B. Co. V. Konrad 137 W.
107 208
Kaley v. Van Ostrand 134 W.
443 277
Kansas & T. C. R. v. N. W. C.
& M. Co. 161 Mo. 288 - 453, 454
Karow v. Continental Ins. Co.
67 W. 56 - - - - 390
Kath V. Wis. Cent R. Co. 121
W. 503 475
Eavanangh v. Wausaa 120 W.
611 118
Eeator L. Co. v. St Croix B.
Corp. 72 W. 62 - - 261, 262
Kelley v. Schupp 60 W. 76 - 412
Kelley, M. A Co. v. La Crosse
C. Co. 120 W. 84 - - - 385
Kellopg, Ex parte, 6 Vt 509 - 18
Kellogg Y. Winnebago Co. 42
W. 97 509
Kelly V. C. & N. W. R. Co. 60
W. 480 190
Ketchum v. Wells 19 W. 25 - 84
Killen v. Barnes 106 W. 540 - 416
King V. Hekla F. Ins. Co. 58
W. 508 510
Kinn v. Firet Nat Bank 118 W.
537 - - - - - 67
Kline v. State 44 Miss. 317 - 569
Klotz V. Power & M. M. Co.
136 W. 107 - - - 187, 464
Knotts V. Hydrick 12 Rich.
Law 314 - - - - 195
Kollock V. State 88 W. 663 - 111
Koplitz V. Powell 56 W. 671 - 206
Kossakowski v. People 177 111.
563 134
Krause v. Busackerl05 W. 350 300,
432
Kreckeberg v. Leslie 111 W.
462 - - - - - 347
Kreider v. Wis. River P. & P.
Co. 110 W. 645 . - 187, 188
La Coursier v. Russell 82 W.
265 - - - 84, 205, 208
Laird v. Otsego 90 W. 25 - 494
Lake Shore & M. 8. R. Co. v.
C, S. A 0. R. Co. 30 Ohio
St. 604 166
Lamoreux v. Huntley 68 W.
24 347
Lampe v. Kennedy 49 W. 601 633
Lang V. Sanger 76 W. 71 188, 189
Langnecker v. Trustees 111 W.
279 537
La Point v. Cady 2 Pin. 515 - 565
Laun V. Pac. Mut L. Ins. Co.
131 W. 555 - - - 221, 224
Lawe V. Hyde 39 W. 345 - 285
V. Kaukauna 70 W. 306 - 609
Lawless ▼. Reagan 128 Mass.
592 576
Lawson v. M. & N. R Co. 30
W. 597 253
Leasum v. G. B. & W. R. R.
138 W. 593 - - -444,447
Lind V. Uniform S. & P. Co.
140 W. 183 - - - 464, 665
Lindemann v. Rusk 125 W. 210 415
Linden L. Co. v. Milwaukee E.
R. & L. Co. 107 W. 493 258, 259
Linn v. Gunn 56 Mich. 447 - 51
Loberg t. Amherst 87 W. 634 494
Digitized by
Google
XXVI
CITATIONS.
[140
Lombard v. Cowbam 34 W.
m\ 285
Lonergan v. State 111 W. 453 136
Louisville & N. R Co. v. Stu-
ber 108 Fed. 934 - - - 443
Love V. Teter 24 W. Va. 741 - 51
Lowe V. Conroy 120 W. 151 - 40
V. Reddan 123 W. 90 - 71
L. R. & Ft. a R. Co. V. Miles
40 Ark. 298 . - - - 447
Lucas V. M. & St P. R. Co. 33
W. 41 447
Luther v. C. J. Luther Co. 118
W. 112 478
Lutz V. Compton 77 W. 584 - 11
Lybrand v. Haney 31 W. 230 654
Lynch v. Springfield 174 Mafis.
430 315
V. Steamer Economy 27
W. 69 638
Lynn G. & E. Co. v. Meriden
F. Ins. Co. 158 Mass. 670 - 393
Lvon V. Grand Kapids 121 W.
609 496
Madison ▼. Am. & R Co. 118
W. 4isO 70
V. Madison G. A E. Co.
129 W. 249 - - - - 166
Madison, W. & M. P. R. Co.
V. W. & P. P. R. Co. 7 W. 59 485
Maginnis v. Knickerbocker I.
Co. 112 W. 385 - - - 453
Main v. Procknow 131 W. 279 84,
386
Maire v. Kruse 85 W. 302 - 554
Malbon v. Birney 11 W. 112 - 206
Manitowoc S. B. Works v.
Manitowoc G. Co. 120 W. 1 206
Marchant's Estate 121 W. 526 340
Marien v. Evangelical 0. Cong.
132 W. (^ - - . 33, 34
Marqnardt & Sona v. Mason 87
Iowa 136 - . - - 586
Martin v. Bishop 59 W. 417 - 300
v. Hiirlburt 60 Vt 364 - 587
V. Martin 187 111. 200 - 588
V. State 79 W. 165 - - 377
Marvin v. Anderson 1 11 W. 387 478,
484
Marx V. Rowlands 59 W. 110 574
Matlack y. Bank 180 Pa. St
360 223
Matthews v. Capital F. Ins. Co.
115 W. 272 .... 510
Mauch V. Hartford 112 W. 40 244,
322
Manrer v. Stiner 82 W. 99 - 609
Mayer v. State 63 N. J. Law 35 569
Mayer v. State 64 N. J. Law
323 570
McBryde v.Monte8ano7 Wash.
69 640
McClellan v. Chippewa Valley
E. R. Co. 110 W; 326 - - 300
McCord V. Eastern R. Co. 136
W. 254 606
V. Hill 117 W. 306 - . 438
McCoy V. Milwaukee St R. Co.
88 W. 56 . - - - 190
McCullough V. Campbellsport
123 W. 334 . - - 214, 234
McCurdy v. Rogers 21 W. 197 347
McDermott v. C. A N. W. R.
Co. 82 W. 246 - • - - 241
V. Jackson 97 W. 64 - 291
McDonald v. Bryant 73 W. 20 206
V. Gardner 56 W. 35 - 84
McDougald v. New Richmond
R. M. Co. 125 W. 121 - 287, 318
McGowan v. C. A N. W. R. Co.
91 W. 147 - - . - 57
Mcintosh V. Aubrey 185 U. 8.
122 588
McKay v. Kalyton 204 U. 8.
458 601
McKenney v. Minahan 119 W.
651 575
McKinnon v. Vollmar 75 W. 82 432
McKivergan v. Alexander A E.
L. Co. 124 W. 60 - - - 453
McLaughlin, Guardianship of,
101 W. 672 - - - 574, 675-
McLennan v. Prentice 85 W.
427 51
McMahon v. McGraw 26 W.
614 - - - - - 348
McMillan v. Fox 90 W. 173 82, 84
McNaughton v. Des Moines Lb
Ins. Co. 140 W. 214 - - 280
V. Ticknor 113 W. 555 - 566
Meibus v. Dodge 38 W. 300 - 6
MendotaClubv. Anderson 101
W. 479 330
Mernaugh v. Orlando 41 Fla.
433 • - - - - 42
Merrick v. N. W. Nat. L. Ins.
Co. 124 W. 221 - - - 79
Merrill v. Merrill 134 W. 395 576-7
Merrill R. A L. Co. v. Merrill
119 W. 249 . - - - 452
Mersey S. A I. Co. v. Naylor
L. R. 9 Q. B. Div. 648 - 207
M. E. Church v. Sherman 36
W. 404 3.32
Metzker v. People 14 111. 101 569
Meyer v. Ladewig 130 W. 566 500,
503-
Digitized by
Google
Wis.]
CITATIONS.
XXVll
Meyer v. Milwaukee K R. &L.
Co. 116 W. 336 . - - 662
Michelson v. Pierce 107 W. 85 417
Midlothian I. M. Co. v. Bel-
knap 108 W. 198 - - . 431
Millaadon t. New Orleans Ins.
Co. 4 La. Ann. 15 - - 392
Miller v. C. A N. W. R. Co.
133 W. 183 - - - - 101
V. C, St P., M. & 0. R.
Co. 135 W. 247 - . . 447
V. Clark 62 Kan. 278 - 306
V. Hoeschler 121 W. 558 - 606
V. State 139 W. 57 - 122-124
V. 15 Wall. 478 - 157
Mills v.Charleton 29 W. 400 251,254
Milwaukee v. O'SuUi van 25 W.
666 657
Milwaukee Go. v. Isenring 109
W. 9 245, 249, 250, 252. 256, 257
Milwankee S. R. Co., In re, 124
W. 490- - - - 154,452
Minneapolis, St. P. & 8. 8. M.
R. Co. T. Railroad Commis-
sion 136 W. 146 - 166, 167, 637
Modem Woodmen v. Gerdoin
72 Kan. 391- ... 507
Moletor v. Sinnen 76 W. 308 - 91
Monongahela Nav. Co. v. U. 8.
148 IJ. a 312 - . . 261
Monte V. Wausau P. M. Co.-
132 W. 205 - - - - 662
Montgomery t. Am. Cent. Ins.
108 W. 146 - - - - 311
V. Portland 190 U. 8. 89 - 261
Moore v. Cross 87 Tex. 557 - 51
V. Kendall 2 Pin. 99 - 628
Moran's Will 118 W. 177 95, 592
Morice v. Milwaukee £. R. &
L. Co. 129 W. 529 - -800
Morton v. Clark 181 Mass. 134 208
Moyer v. Koontz 103 W. 22 - 591
Mueller v. N. W. I. Co. 125 W.
326 57
Muenchow v. Roberts 77 W.
520 885
Mulcaims t. Janesville 67 W.
24 314
Munger v. Perkins 62 W. 499 289
Murphy v. Sagola L. Co. 125
W.363 86
Murrav v. Berkshire Co.
Comm'rs 53 Mass. 455 - - 101
V. Bnell 74 W. 14 - - 471
Myer v. Wheeler 65 Iowa 390 207
Myrick V. Kahle 120 W. 57 - 651
Nadau v. White River L. Co.
76 W. 120 - - - . 8
Nash V. Fries 129 W. 120 166, 355-6
Nat C. Co. V. Vulcanite P. a
Co. 192 Mass. 246- - - 208
Nat M. & T. Co. V. Standard
S. M. Co. 181 Mass. 275 - 208
Neff V. Reed 98 Ind. 341 101, 102
Nehrling v. State ex rel. Thai
112 W. 637 - - - - 803
Nelson v. A. H. StangeCo. 137
W. 309 660
Nevins v. Nevins 68 Kan. 410 545
Newton v. Whitney 77 W. 515 462
New York <fe B. D. E. Co. v.
Traders' & M. Ins. Co. 132
Mass. 377 - - - . 895
V. 135 Mass. 221 - 395
Niagara Falls & W. R. Co.,
Matter of, 108 N. Y. 375 - 263
Nicolai v. Davis 91 W. 370 - 556
Nicoud V. Wagner 106 W. 67 - 188
Nimblet v. Chaffee 24 Vt 628 574,
575, 577
North Ga. Co. v. Bebee 128 Ga.
563 195
North Milwaukee, Inrey 93 W.
616 - 171, 354-356, 359, 636
Northern Cent R. Co. v.
Comm. 90 Pa. St 300 - - 101
V. Mayor 46 Md. 425 - 158
Northern P. R. Co. v. Stete ex
rel. Duluth 208 U. 8. 583 - 166
Northern T. Co. v. Snyder 113
W. 516 - - - - 20, 641
Northwestern Mut L. Ins. Co.
V. Fort's Adm'r 82 Ky. 269 223
V. Little 56 Ind. 504 - 224
V. Ross 63 Ga. 199 - - 223
O'Boyle v. State 100 W. 296 - 571
O'Brien L. Co. v. Wilkinson
117 W. 468 - - - -86
Odegard v. North Wis. L. Co.
130 W. 659 - - - 188, 324
Odette V. State 90 W. 258 126, 127
Ogden V. Glidden 9 W. 46 - 101
Ohms V. State 49 W. 415- - 136
Ohse V. Miller 137 W. 474 - 95
Clean 8. R. Co. v. Pa. R. Co.
75 Apt). Div. 412 - - - 156
Olson, In re, 10 S. Dak. 648 - 576
Olson V. Merrill 42 W. 203 255, 329
Oneida Co. v. Tibbits 125 W. 9 20, 24
Osprood V. Bander 75 Iowa 550 207
O'Toole V. State 105 W. 18 - 129
Pabst V. Goodrich 133 W. 43 478,
485
Pabst B. Co. ▼. Milwaukee 126
W. 110- . -224,225,280
Digitized by
Google
xxvni
CITATIONS.
[140
Pa^ V. Kennan 38 W. 320 - 285
Palmer v. Goldberg 128 W. 103 433
V. N. Y. C. & H. R. R.
Co. 112 N. Y. 234 - - 7
Parr v. Northern E. Mfg. Co.
117 W. 278 - - - - 291
Parsons v. U. 8. 167 U. 8. 324 303,
3G8
Patten v. C. A N. W. R. Co.
32W. 524 - . - - 241
Patterson, Ex parU, 50 Tex.
Crim. 271 - - - - 143
Patterson v. Cappon 129 W.
439 654
Paulson V. State 118 W. 89 - 129
Paulson's Will 127 W. 612 - 575
Pearsall v. G. N. R. Co. 161 U.
8. 646 157
Peck V. Baraboo 141 W. 48 - 663
Penniman v. French 2 Mass.
140 576
Pennoyer v. Allen 51 W. 360 - 285
Pennsylvania R. Co. v. Miller
132 U. 8. 75 - - - - 165
People V. Bellet 99 Mich. 151 565
V. Chin Hane 108 Cal. 597 120
V. Cokahnour 120 Cal. 253 143
V. Hanaw 107 Mich. 337 134
V. Harris 136 N. Y. 423 - 114
V. Kennedy 32 N. Y. 141 114
V. Molineux 168 N. Y. 264 130
V. Phippin 70 Mich. 6 - 669
V. Ward 134 Cal. 301 - 135
People ex rel. Bolt v. Riordan
73 Mich. 508- ... 638
Comm'ra v. Banks 67 N.
Y. 668 252
— Depew & 8. W. R. Co. v.
Board of R. R. Comm'rs 4
App. Div. 259 - . . 157
— — Jones Y. Feitner 157 N.
Y. 363 588
•^— Lieberman v. Vandecarr
175 N. Y. 440 . - - 40
Lowry v. District Court
32 Colo. 15 - - - - 306
Peabody v. Att'y Gen. 22
Barb. 114 - - - - 372
Peoria & O. R. Co. v. Taze-
well Co. 22 111. 147 . - 640
— Sutherland v. Governor
29 Mich. 320 ... 365
Ward V. Roosevelt 151 N.
Y. 369 306
Perley v. Chandler 6 Mass. 454 158
Peshtigo L. Co. v. Ellis 122 W.
433 272
Peters v. Warren Ins. Co. 14
Pet. 99 390
Petit V. Minnesota 177 U. 8. 164 566
Pewaukee v. Savoy 103 W. 27L 330
Pfeiffer v. Marshall 130 W. 51 84
Pfoutz V. Comford 36 Pa. St.
420 - - - - - 508
Philadelphia v. Gilmartin 71
Pa. St. 140 - - - - 815
Philler v. Waukesha Co. 139
W.211- - - - 20,24
Phillips V. Albany 28 W. 340 2.".3
Pickard v. Howe 53 Mass. 198 102
Pickett V. Nelson 79 W. 9 - 633
Piedmont L. I. Co. v. Pied-
mont F. & M. Co. 96 Ala. 389 51
Pinkum v. Eau Claire 81 W.
:301 - - - - 609,610
Pioneer W. P. Co. v. Chandos
78 W. 526 - ... 426
Piper V. C. , M. & St. P. R. Co. 77
W. 247 4
Pittfibtirgh, M. & Y. R. Co. v.
Comm. ex rel. Att*y Gen. 104
Pa. St. 583 - - - - 101
Portage Co. v. Waupaca Co. 15
W. 361 20
Pound V. Turck 95 U. 8. 459 - 261
Powell V. Ashland I. & S. Co.
98 W. 35 - - - . 188
Prasser, Will of, 140 W. 92 - 288
Pratt V. 8. Freeman & Sons
Mfg. Co. 115 W. 648 - - 80
Prentiss v. Brewer 17 W. 635 287
Pnchard v. Lewis 125 W. 604 195
Priewe v. Fitzsimons & C. Co. *
117 W. 497 - - - - 67
V. Wis. 8. L. A I. Co. 93
W. 534- - - - 263,330
v. 103 W. 537 - - 263
Pueblo Co. Comm'rs v. Smith
22 Colo. 534- - - - 638
Pulford V. Whicher 76 W. 555 430
Quackenbnsh v. W. & M. R.
Co. 62 W. 411 - . . 5
V. 71 W. 472 - . 6
Racine v. Crotsenberg 61 W.
481 603
Rallies V. J. Thompson & Sons
Mfg. Co. 137 W. 506 - - 457
Rahr v. Manchester F. A. Co.
93 W. 355 - - - - 800
Railroad Commission Cases 116
U. 8. 307 - - - - 165
Railroad Tax Cases 13 Fed. 722 565
Railway Co. v. Allerton 18
Wall. 233 .... 485
Raley v. Umatilla Co. 15 Oreg.
172 61
Digitized by
Google
Wis.]
CITATIONS.
XXIX
Randall v. N. W. Tel. Co. 54
W. 140 100
V. Roveletad 105 W. 410 5r)2,
553, 554, 556
Ransom v. C, St. P., M. & 0.
R.Co. 62W. 178- - r 4
Recor ▼. Conim. & Say. Bank
142 Mich. 479 - - - 588
Redepenning v. Rock 136 W.
372 - . - - • 189
Reilly v. Racine 51 W. 526 554, 556
Renshaw v. Fi remands Ins. Co.
33 Mo. App. 394 . - - 391
Rice V. Ashland Co. 108 W. 189 100
Rich V. Zeilsdorff 22 W. 544 195-6
Richardson t. Bigelow 15 Gray
154 ----- 158
V. Chvnoweth 26 W. 656 385
Ricbey v. tJnion Cent L. Ins.
Co. 140 W. 486 - - -631
Riley v. Charleston U. 8. Co.
71 8. C. 457 - - - - 454
Roberts v. State 84 W. 361 - 628
Robinson y. Superior R. T. R.
Co. 94 W. 345 - - -210
y. Wanpaca 77 W. 544 • 469
Robion v. Walker 82 Ky. 60 - 587
Roche V. Pennington 90 W.
107 r - - - - 291
Roebke y. Andrews 26 W. 311 347
Roedler y. C, M. A St P. R.
Co. 129 W. 270 - - - 663
Rogers v. Bradshaw 20 Johns.
735 101
Boasmiller y. State 114 W. 169 100,
643
Rowell y. Smith 123 W. 510 - 365
Rowley y. C, M. A St P. R.
Co. 135 W. 208 - - - 300
Royea's EWate 143 Fed. 182 - 47
Rozelle y. Rhodes 116 Pa. St
129 587
Ruehl V. Voight 28 W. 153 - 422
Rahland v. Jones 55 W. 673 - 606
Russell y. German F. Ins. Co.
100 Minn. 528 ... 394
V. State 50 Ind. 174- - 569
Ryan y. Outagamie Co. 80 W.
336 - - - - • 039
y. State 115 W. 488 . - 124
St Croix Co. ▼. Webster 111
W. 270 20
St Louis, J. A 0. R. Co. y. S.
A N. W. R. Co. 96 III. 274 - 164
8t Louis Nat S. Co. y. Bums
97 111. App. 175 - - -239
8t Paul B. C5o. y. Kemp 125 W.
138 800
587
160
5, 7,8
322
490
628
112,
Salvo y. Duncan 49 W. 151 - 531
Samuels v. Continental Ins. Co.
2 Pa. Dist Rep. 397 - 391, 403
Sandberg v. State 1 13 W. 578 - 37
Sanders y. Herndon 122 Ky.
760 - , .
San Joaquin A K. R. C. A I.
Co. V. Stanislaus Co. 113 Fed.
930
Schmidt v. M. A St P. R. Co.
23 W. 186 .
y. Pfeil 24 W. 452
Schreiner y. G. N. R. Co. 86
Minn. 245 - - - -
Schrier y. M., L. S. A W. R.
Co. 65 W. 457 -
Schumaker y. Heinemann 99
W. 251
Schutz V. State 125 W. 452 -
Schwantes y. State 127 W. 160
113, 127
Scott y. West 63 W. 529 - - 592
Scott L. Co. y. Hafner-Loth-
man Mfg. Co. 91 W. 667 - 84
Scripture v. Lowell M. F. Ins.
Co. 10 Cush. 356 892, 402, 405-6
Sears y. Ackerman 138 Cal.
583 - - - - ' . 195
Secor y. State 118 W. 621 - 134
Sellers v. Union L. Co. 39 W.
525 . - - - 255,329
Shafer y. Eau Claire 105 W.
239 ----- 6fi3
Shelp y. U. S. 81 Fed. 694 - 570
Shields y. Ohio 95 U. S. 319 157, 160
Shoemaker V. Washburn L. Co.
97 W. 585 - - 478, 484, 485
Shove V. Shove 69 W. 425 - 318
Silvernail v. Rust 88 W. 458 - 65
Singleton v. Phetiix Ins. Co.
132N. Y.298 - - - 393
Sinking-Fund Cases 99 U. S.
700 - - - - 157, 175
Sizer y. Clark 116 W. 534 - 426
Slauson y. Racine 13 W. 398 - 638
Sleeper v. Goodwin 67 W. 577 417
Slinger y. Henneman 38 W.
610 - - -
Sloteman v. Thomas A W. Mfg.
Co. 69 W. 499 -
Smartv. Hart75W. 471
Smith y. Au Gres 150 Fed. 257
y. Lehigh Valley R. Co.
170 N. Y. §94 - . - 628
y. Lewis 20 W. 350- - 438
y. Norton 114 W. 458 - 65
y. Putnam 107 W. 155 - 12
y. Smith 116 W. 570 - 96
V. Youmans 96 W. 103 - 330
- 636
409
606
47
Digitized by
Google
XXX
CITATIONS.
[140
Smith & Ck>. v. Hill 83 Iowa
QS4 586
Smyth V. Hall 126 Iowa 627 - 586
Snyder v. Jennings 15 Neb.
372 847
Sohier v. Norwich F. Ins. Co.
11 Allen 336 ... 402
Sokel V. People 212 111. 238-569
Southern Wis. P. Co., In re,
HOW. 245 - ... 265
Spalding v. Vilas 161 U. S. 483 372
Spelman v. Aldrich 126 Mass.
113 587
Splinter v. State 140 W. 567 - 565
Stafford v. Chippewa Valley
E. R. Co. 110 W. 331 - - 300
Standard Mfe. Co. v. Slot 121
W. 14 130
Starr v. Child 5 Denio 599 • 195
State V. Bond 8 Iowa 540 • 616
V. Boyington 56 Me. 512 569
- — V. Caasady 52 N. H. 500 569
V. C. &N. W. R Co. 128
W. 449- . - - 158,160
V. Cox 32 Mo. 566 . - 569
V. Fairton S. F. & B. Asso.
44 N. J. Law 376 - - - 587
T. Gammer 22 W. 441 • 377
V. Gumey 37 Me. 149 • 569
V. Harris 119 N. C. 811 - 569
V. Heffernan 28 R. I. 477 570
V. Heiden 139 W. 519 - 134
V. Hogue 71 W. 384 - • 552
V. Kendig 133 Iowa 164 - 570
V. Leaver 62 W. 387 - 512
V. Lloyd 133 W. 468 - 556
V. Maine 27 Conn. 641 - 102
V. McGlynn 34 N. H. 422 569
— V. Morri8town33N.J.Law
57 234
V. Nergaard 124 W. 414 - 618
V. Nine Justices 90 Tenn.
722 • • • . • 638
V. Petit 74 Minn. 376 - 566
V. Price 71 N. J. Law 249 569
V. Railroad Co. 54 Ark.
546 569
V. Redmon 134 W. 89 - 161
V. Reynolds 65 N. J. Law
424 134
V. Thompson 2 Kan. 432 569
V. Van Vliet 92 Iowa 476 569
V. Waller 171 Ind. 53 - 570
V. Williams 20 Iowa 98 • 569
V. Wilson 42 Me. 9 - - 195
V. Wis. Cent. R. Co. 133
W. 478 438
State ex rel. Adams v. Burdge
95W. 390 - • . -171
State ex rel. Amy v. Bazille 81
Minn. 370 - - - - 576-
Att'y Gen. v. O'Neill 24
W. 149 636^
V. Portage Gty W.
Co. 107 W. 441 . - . 25a
Augusta V. Losby 115 W.
57 307,451
Board of Ed. v. Hunter
111 W. 582 . . - - 267
Brewer v. Abbay 82 Miss.
559 30^
Coffey ▼. Chittenden 112
W. 569- . - - 307,371
Cook ▼. Houser 122 W.
534 - - 303, 305, 306, 365
Court of Honor v. Giljo-
hann 111 W. 377 ... 307
Dayern v. Rose 140 W.
360 307
Douglas V. Westfall 85
Minn. 437 - - - - 18
Duluth B. L. R. Co. v.
DiBtrict Court 54 Minn. 34 454
Durner v. Huegin 110 W.
189 142
Fire & R. P. C. Co. v. Icke
136 W. 583 . - - - 267
Fourth Nat Bank v. John-
son 103 W. 591 ... 307
Gericke v. Mayor 99 W.
322 .. - 268,307,371
Gill V. Common Council
9 W. 254 - . -304, 371
Ginn v. Wilson 121 W.
523 307
Gubbins v. Anson 132 W.
461 18
Heller v. Lawler 103 W,
460 307
Holland v. Lammers 113
W. 398- - - - 356, 359
Hovey v. Noble 118 Ind.
350 18
Kellogg V. Currens 111 W.
431 166
Kennedy v. McGarry 21
W. 496 304
Minneapolis v. St. P., M.
A M. R Co. 98 Minn. 380 - 158,
163,337
N. C. Foster L. Co. v.
Williams 123 W. 61 - 307, 451
Neeves v. Wood Co. 72 W.
629 268
North C. R. Co. v. N. P.
R. Co. 49 W^ash. 78 - 159, 164
Northern Pac. R. Co. v.
R. R. Comm. 140 W. 145 181-3, 33^
Digitized by
Google
Wis.]
CITATIONS.
ZXXl
State ex rd, Ordway v. Smith
IIW. a^ .... 525
People's L. <Sc Mfg. Co. v.
Holt m W. 131 . . . 371
Pfister V. Manitowoc 52
W.423 267
Pittsbarjch a Co. v. Pat-
tereon 138 W. 475 - . 85
Rowe V. Emmenaaer 135
W. 185 267
Rudolph V. Hutchinson
134 W. 283 . - - 307, 371
Sepic V. Milwaukee 129
W. 562 - - - . 39, 41, 42
Sloan V. Warner 56 W.
271 268
Spaulding v. El wood 11
W. 17 268
Starkweather v. Superior
90 W. 612 . . - -303
Vanderwall v. Mayor 134
W. 437- - - . 307,371
Vilas V. Wharton 117 W.
658 307
Wagner ▼. Dahl 140 W.
301 371
Walsh ▼. Dousman 28 W.
541 638
Willisv. Prince 45 W. 610 305
Wis. Met. Tel. Co. v. Mil-
waukee 132 W. 615 - 267, 371
Yates V. Crittenden 164
Mo. 237 . - . .306
Steele v. Kom 137 W. 51 - 438
Stephens v. Elver 101 W. 892 71
Stephenson v. Cady 117 Mass. 6 207,
208
Stevens Point B. Co. v. Reillv
44W.295 . . . 245,258
Stewart v. Milwaukee E. R. <Sc
L. Co. 110 W. 540 - . 12
Stock well V. Nat. Bank 36 Hun
sas 588
Stork v. Charles StolperC. Co.
127 W. 318 .... 603
Stowell V. Eldred 39 W. 614 . 285
Stratton v. Brigham 34 Tenn.
420 509
Strong v. Brooklyn 68 N. Y. 1 611
V. Winslow 3 Pin. 27 - 574
Btndabaker v. Markley 7 Ind.
App. 368 . - - 674, 676
Superior C. I* Co. v. Bickford
93 W. 220 - ... 353
Swaney v. Hutchins 13 Neb.
2m 608
Swanke y. Herdeman 138 W.
654 537
Sweet V. Rechel 159 U. & 880 160
T. B. Scott L. Co. V. Hafner.
Lothman Mfg. Co. 91 W. 667 84
Teeter v. United L. Ins. Asso.
159N.Y. 411 - - 224,226
Teech v. Milwaukee E. R. & L.
Co. 108 W. 593 . . .300
Texas & Pac. R. Co. ▼. Allen
114 Fed. 177- - - 601
Theis V. Durr 125 W. 661 - 478
Thorn, Jnre, 6 Law Rep. 49 - 113
Tiemey v. Tierney 81 Neb. 193 676
Till V. State 132 W. 242 - - 121
Tilton V. J. L. Gates L. Co. 140
W. 197 84
Tinker v. N. Y., 0. A W. R.
Co. 71 Hun 431 - - - 496
Titus V. B., B. & K. R. Co. 136
Pa. St 618 - - - - 239
Toledo, A. A. A N. M. R. Co.
V. D. , L. A N. R. Co. 62 Mich.
564 163
Tomlinson t. Jessup 82 U. 8.
454 158
Tondro v. Cushman 6 W. 279 426
Transatlantic F. Ine. Co. v. Dor-
sey 56 Md. 70 - - 391, 397
Treat v. Hiles 81 W. 280 - 491, 531
Triplett V. Graham 58 Iowa
135 686
Truelson v. Duluth 61 Minn. 48 640
Tufts V. Weinfeld 88 W. 647 79, 82
Tuttle V. D., G. H. A M. R.
Co. 122 U. S. 189 . . . 239
Underwood L. Co. v. Pelican
B. Co. 76 W. 76 - - 258, 262
Union B. Co. v. U. a 204 U.
8. 364 167
Union Nat Bank v. Cross 100
W. 174 208
United L., F. A M. Ins. Co. v.
Foote 22 Ohio St 340 - 391, 397
U. S. V. Bloomgart 2 Ben. 356 143
V. Cook 17 Wall. 168 - 569
V. Verdier 164 U. S. 213 - 37
Urwan v. N. W. Nat L. Ins.
Co. 125 W. 349 . - 220, 221
U. S. Grant Univ. v. Bentley
117 W. 260 - . - - 352
Vagts V. Utman 125 W. 265 • 847
Van de Bogart v. Marinette A
M. P. Co. 132 W. 867 - - 187
Van Ingen v. Feldt 86 W. 346 47
Van Nomian v. N. W. Mut L.
Ins. Co. 51 Minn. 57 - - 223
Van Salvellereh v. Green Bay
T. Co. 132 W. 166 - - 629
Villines v. State 96 Tenn. 141 669
Digitized by
Google
XXXII
CITATIONS.
[140
Vopt V. Schienebeck 122 W.
491 85
Vroman v. Dewey 23 W. 530 - 633
Wallis V. State 54 Ark. 61 1 - 135
Wallman v. R. Connor Co. 115
W.617 453
Wanzer v. Chippewa Valley
E. R. C^. 108 W. 319 - - 300
Ward V. Am. H. F. Co. 119 W.
12 - - - - 79, 82, 88, 384
Warehouse & B. S. Co. v. Gal-
vin 96 W. 523 - - - 206
Warren v. Thomaston 43 Me.
406 509
Washburn v. Washburn W.
Co. 120 W. 575 - - - 452
Waters v. Merchants' L. Ins.
Co. 11 Pet. 213 - . - 392
Way V. Abington Mut. F. Ins.
Co. 166 Mass. 67 - 393, 405, 406
Wayne v. Chester (Ky. ) MS8.
June 24, 1875 - - - 587
Webb V. Holt 57 Iowa 712 - 586,
587
Webster v. Morris 66 W. 366 - 592
Weisbrod v. C. & N. W. R. Co.
21 W. 602 - - - . 008
Welch, Guardianship of, 108
W. 387 574
Weld V. Johnson Mfg. Co. 86
W. 549 286
Wentworth v. Racine Co. 99
W. 26 639
West Jersey & 8. R. Co. v. At-
lantic City & S. T. Co. 65 N.
J. Eq. 613 - - - - 164
Western L. & C. Co. v. Copper
River L. Co. 138 W. 404 196, 273
Western Union Tel. Co. v. Pa.
R. Co. 195 U. S. 540 - - 160
Western W. M. Co. v. North-
ern A. Co. 139 Fed. 637 403, 404
Whisler v. Wilkinson 22 W.
572 - - - - 255,329
Whitaker v. Brown 46 Pa. St
197 195
White V. White 132 W. 121 - 544
IVhiteley v. Equitable L,A8Sur.
Soc. 72 W. 177 - - - 507
Whitney v. C. A N. W. R. Co.
27 W. 327 -
V. Milwaukee 65 W. 409 -
Widman v. Gay 104 W. 277 -
Willamette I. fi. Co. v. Hatch
125U.a 1 -
Williams v. Jones 131 W. 361
240
469
206
261
196,
272
206
592
544
V. Thrall 101 W. 337 -
V. Williams 135 W. 60 -
V. 20 Colo. 51 -
Willow River Club v. Wade
100 W. 86 - - 255, 329, 424
Willson V. Black Bird Creek
M. Co. 2 Pet. 245-
Winchester v. Newton 2 Allen
492 - . - - -
Winner v. Bauman 28 W. 563
Winona & S. W. R. Co. v. C,
M. & St. P. R Co. 50 Minn.
300 - - -
Winthrop v. Fairbanks 41 Me.
307 - - -
Wis. Cent. R. Co. v. Wis. River
L. Co. 71 W. 94 -
Wis. Ind. School v. Clark Co.
103 W. 651 -
Wis. River Imp. Co. v. Manson
43 W. 255 . - - 261, 262
v. Pier 137 W. 325 - 262, 263
Wis. T. Co. V. Wis. M. A F.
Ins. Co. Bank 105 W. 464 - 507
Wis. W. Co. V. Winans 85 W.
26 263,453
Wolf V. Theresa Village Mut
F. Ins. Co. 115 W. 402 -
Woodman v. Blue Grass Lb Co.
125 W. 489 -
Wood worth ▼• Campbell 5
Paige 518 ....
Wuerfler v. Trustees 116 W. 19
- 261
207
346
- 164
e.
. 195
- 651
101
523
79
537
Yates Co. Nat Bank v. Car-
penter 119 N. Y. 550 - - 688
Yellow River Imp. Co. v. Ar-
nold 46 W. 214 - - 254-257
Yerkes v. N. P. R. Co. 112 W.
184 8
Zunker v. Kuehn 113 W. 421 - 432
Digitized by
Google
Wis.]
CITATIONS.
ZXXlll
STATUTES CITED.
Ordinance of 1787.
Art 4 of compact - - • 260
CossTirunoN of Wisconsin.
Art. I, sees. 1, 8 - - - 663
" IV, sec. 18 246,248-251,264,
266,257
IV, •« 22 - . - 638
IV, •* 23 - . 364, 356
IV, " 31 25,28,246,248.267
IV, " 32 - . 26, 28
VII, "2 - -636,638
VII,8ec8.5-7 - . . 263
VII, sec. 8 - - - 17
VII, ** 11 - . 246, 264
IX, " 1 246,249,260,261
XI, " 1 - 148, 161, 172
XI, "3 - -363,366
Session Laws.
1840. Page 33, No. 24, § 6 - 652
1843. ** 46, §§ 1, 2 648, 663, 664
1843. Pages 46-60, J 23 - - 652
18o6. P. & L. ch. 299 • - 253
1857. " " 170 • • 253
1858. " ** 38 . - 253
1859. " «« 96 . - 525
1862. Ch. 184 - 417, 420, 421, 423
1867. P. A L. ch. 454 - - 254
186a " " 398 - - 253
1869. Ch. 163 - - - - 3a5
1870. " 26 - - - - 253
1870. P. & L. ch. 273 - - 253
1874. Ch. 184 - - - - 39
1886. " 83, subch. X, sec. 4 525
1885. " 378 - - - 361, 368
1885. " 378, sec 6 - - 368
1885. " 378, " 11 368, 369, 371
1886. •• 378, " 12 - - 308
1889. " 27, sabch. XXI,
sec. 6 - - 642
1889. " 136 - - - - 525
1891. " 216 - - - - 66
189). •« 264 - - - - 250
1899. " 305 - - - 320, 326
1901. •• 462 245,246,248,249,251,
264, 265, 259, 260
1901. " 462, sec. 4 - 246, 259
1901. " 465 - - - - 515
1903. •• 224 - - 14, 17, 20, 21
1903. " 234, subch. II, sec.
17 - - 373, 377
1905. " 17 - - - - 543
hm. " 21 - - - - 350
1905. " 115 - • - - 214
1905. " 138 - - - 567-669
Session Laws — con.
1905. Ch. 303 - - . 468, 464
1905. •* 305, sees. 3, 8 - - 99
1905. " 363, sec. 22 301,303,308
1905. «* 419 - - 266, 268, 328
1907. " 120 - - - 334, 336
1907. •* 254 - - 441, 446, 500
1907. " 346 - 236, 243, 498, 503,
612, 615
1907. " 464 - 146-6, 148, 163^,
166-7, 160-1, 166,
168, 172, 174-7, 180
1907. «• 464, sec. 2 - - 154
1907. " 480 - - . 624, 626
1907. " 646 - - - . 328
1907. " 651 - - 635, 637-639
1907. " 677 - - - 25, 27, 28
1909. " 192-236,243,244,408,412
1909. " 300 . - 557, 663-56G
Milwaukee City Chabter.
Ch. 4, sec. 3, subd. 9, 40- - 39
13
13, sec 16 -
. 39
- 40
Territorial Statutes of 1839.
Page 107, sees. 4, 6 - - - 662
** 107, sec 6 - ^ - 663
Revised Statutes of 1849.
Ch. 16, sec 70- - - - 662
Revised Statutes of 1868.
Ch. 14, sec. 6 - - - - 805
*• 19, "74- - - - 562
"66 - - 417, 418, 420, 421
Revised Statittes of 1878.
Section 4221, sabd. 3 - - 420
«« 4985 ... - 420
Statutes (1898 and since).
Sec. Page,
35 305
69 509
69, subd. 3, 9 - - - 509
432,436- - - - 617,621
725 19
725, subd. 3 - - - 19. 21
731, " 22 - - - 20, 22
733- - - - - 20,22
824 319
854- - - -• 354,358,360
860 360
893, subd. 11 - - 214, 230, 234
905 234
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XXK17
CITATIONS.
[140
Statutss (1898 and since) — con.
Sec, Page
925—38 511
925—113 . . 524,526,527
925-113 (L. 1907, ch. 480) 524, 527
925—208 to 925— 239c (subch.
XX, ch. 40a) - . 60
925—223 . - . 58,60
1038, sub(L14- ... 451
1130- - . 64&-650, 652, 654
1175 649
1176 650,654
1184 593,597
1186- ... 593,595-597
1210^ ... 435, 438, 439
1215—25 (Sapp. 1906) - 448, 451
1264 552
12i)4 552
1299/1—1 (L. 1907, ch. 120) - 334,
335,337
1311a 103
1326 510,512
laSO- ... 319-322,326
1347 510, 512
1379—28 328
1607 255
1636; .... 183, 187
16:^(>3f; (Supp. 1906) - - 458, 464
1748 483
1764 413,415
1767, 1769 .... 483
1771- . . . 246,259,483
1771-1791m (ch, 86) - 147, 181,
246, 257, 259
1774. 1775 .... 484
1775a . - • . 246, 259
1784 -.-... 484
1792-1864a (ch. 87) - - 451
1797—40, 41, 43 (L 1907, ch.
454) ... 153
1797—43 to 1797—53 (L. 1907,
ch. 454) . - 146, 180
1797—45 to 1797—48 (L. 1907,
ch. 454) - . -153
1797—48 (L. 1907, ch. 454) - 174
1797-54 to 1797-56 (L. 1907,
ch. 454) - - 147, 181
1797—56 (I^ 1907, ch. 454) 145, 146,
148, 153, 168, 172, 173
1797-_58 (L. 1907, ch. 454) 154, 156
1809 4
1810- • . - 1,4,5,337
1815 643
1816, sabd. 2 - - • 441, 446
1828, ** 6 145-147,152,154,158,
166, 167, 175, 180, 181
1815-1851 - - - 147. 181
1852- . - 12,13,512,516
18t>:ia (L. 1901, ch. 465) - - 515
1895 102
Statctks (1898 and since) — con.
Sec Page
2078 11
2086 92,96
2087- - • . . 92,97
2159- - . . 92,93,96,288
2270, Bubd.5 - • -331,333
2271 287
2345 543
2431- . . 14,16,17,20,21
2432 247,264
2523— 1 (L. 1907, ch. 651) - 637
2523— 2 (L. 1907, ch. 651) 635,637
2560 20-22,24
2565 91
2569 617
2610- ... 287,316,318
2647 416
2658,2660 .... 523
2681 657
2829 . . 197, 198, 202, 207, 236,
244,340
2831 663
2858m (L. 1907, ch. 346) 236, 243,
498, 503, 612, 615
2878- . . . .
. 459, 469
2898- . . . .
. 436,439
2918- . . . .
- 310
2918, Bubd. 3 - - •
. 310,311
2918, ** 4 -
. - 310
2918, "6,7 . .
. 309-311
2921
• 327
2965,2966 - - -
- 91
3039- . . . .
. . 663
3049
- 6<i2
3070- . . . .
. 436,439
3u72m (L. 1909, ch. 192)
236, 243
3074,3075
- 607
3077- . . . .
. 607-609
3078- . . . .
. 285, 286
3084- . . . .
- 608,609
3094- . . . .
- 288
3101- . . . .
. 666-668
3186- . . . .
. . 13
3223
. . 417
3315
- 30
3374-3406 (ch. 146). •
. 417, 420
3477- .' . . .
. - 91
3769
62, 64
3872- . . . .
- 288
3935, subd. 6 - - •
- 333
3976- . . . .
. 672,574
S976 etug. - - -
. - 573
4031- . . - 67
2, 574, 575
4073- - . . .
. 612, til 7
4186- - . . .
- 346
4187- . . . .
. 341, 346
4221, Bubd.3 . .
. 417-420
4221, ** 4 - . •
- 419
4222- ...
. 612,516
Digitized by
Google
Wis.]
CITATIONS.
XXXV
Statutb
JSec,
4339-
4418-
4419-
4505- •
and since) — con.
. . /^'
• . . 134
• . - 135
• . 657,663
Statutes (1898 and since) — con.
Sec Page
4607, 4607a (Supp. 1906) 567-r>69
4719 131,135
4786 141, 142
4985 420
TEXT-BOOKS CITED.
^ Am. it Eng. Ency. of Law
(2d€d.)680- ... 665
-27 Am. & Eng. Ency. of Law
(2d ed.) 280, 285- - - 352
Bi8hop,NewCrim.Proc.S§422-
444 377
Broom, Legal Maxims ( 7th Am.
ed.)522 - - . . 575
-Cameron, Fire Insurance in
Canada, 51 - - - - 394
'Clement. Fire In8urance,84-87 394
1 Cook, Corp. (6th ed. ) {{ 309-
312 - - - • • 485
2 Cook, Corp. J 641 • - 415
10 Cyc. 760 - - -• 485
12 Cyc 311 - - . • 143
16 Cyc 1205, 1206 ... 346
17 Cyc 801 .... 629
^ Cyc 346 .... 569
^ Cyc 1371, note 72 . - 303
1 Dillon, Mnn. Corp. { 66 (39) 314
1 Elliott, Evidence, eh. 16,
$$360-382
aii< "
Elliott, Insurance, {221
:8 Elliott, Kailroads, {{ 1119,
1120
Elliott, Roads and Streets (2d
ed.)$8 . - . .
$451 . . . .
14 Ency. PI. A Pr. 759 . .
766,notel
Frennd, Police Power, $ 611
elseq. - - - • -
<}ary, Probate Law (3d ed.)
$$630, 633 - - . .
1 Green leaf, Evidence, {41 «
(15th ed.) $190 . .
$461 - - • .
603
394
157
101
234
468
470
170
602
507
347
123
High, Extr. Leg. Rem. $ 42 - 371
Jones, Evidence (2d ed.) $ 61
(57) . - - . - 507
$140 . - - - 412
$847 . . - - 123
Jones, Evidence (2d ed.) $ 898
(901) 629
Joyce, Insurance, sec 2796 - 401
1 Kent, Comm. 310 - - 368
Loveland, Bankruptcy (3d ed. )
$173 47
May, Insurance, p. 929, $ 402 392
(3ded.) $402- - - 390
2 May, Insurance (4th ed.)
$402 402
McQuillan, Mun. Ord. $ 420 - 41
Merrill, Mandamus, $$ 222, 223 268
Mills's Thompson, Highways
(4th ed.) 7 ... - 101
4 Op. Att'y Gen. (Clifford) 603 868
(Legare)l - - - 368
5 Op. Att'y Gen. (Crittenden)
288,290 - - - -368
3 Page, Contracts, p. 2219, notes
2,3 80
$1435 .... 80
Richards, Insurance Law (3d
ed.)S231 . - - 394,395
1 Scribner, Dower (2ded.) ch.
19, S 20 ct seq., p. 400 • - 96
Tavlor, Evidence, $ 1470 - - 123
8 Thompson, Comm. on Corp.
$3701 483
1 Washburn, Real Prop. (6th
ed.)$116 - . . - 96
$365 .... 96
$$374,375 ... 96
Wharton, Grim. Et. (9th ed. )
$10 113
1 Wharton, Crim. Law (10th
ed.) $$883,884 - - - 616
4 Wigmore, Evidence, $ 2531 - 507
1 Wood, Fire Insurance (2d
ed.) sec 103- - - 391,401
sec. 104 - - - - 404
Wood, Master A Servant, $ 84 205
8 Words & Phrases - - - 72
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CASES DETERMINED
AT THB
January Term, 1909.
ScHwiKB, by guardimi ad litem, Eei^ondent, vs. Oskugo^
Mn^wAUKEiB & St. Patjx Railway Company, Appellant
May ll^^une $, 1909.
Railroads: Depot grounds: Questions for jury: Negligence: Liability
for unfenc4d track: Injuries to children: Contrihutoiry negli-
gence: Cause of injury: Instructions to jury: Excessive dam^
ages,
"L The question whether a given place is or is not depot grounds
within the calls of sec. 1810, Stata (1898), is ordinarily a ques-
tion of fact. «
2. Failure of the statutory duty imposed upon railroad c<mipanies
to fence th^r right of way constitutes negligenoe, and for in-
juries proximately caused thereby, and not contributed to by
the negligence of the person injured, the company is liable.
3. Where, in addition to the duty imposed upon railroads to fence
their right of way, the proTisions of the statnte impoef) liability
for all damage to persons and animals occasioned ''in any man-
ner, in whole or in part, by the want of such fences," an injury
may be occasioned in whole or in part by the absence of a fence,
although it may not be proximately caused thereby.
4. Under sec. 1810, Stats. (1898), imposing upon railroads liability
for damages to persons and animals occasioned by unfenced
right of way, proximate causal relation, including reasonable
anticipation, is not necessary, and contributory negligence is
no defense; the purpose of the statute being to cast upon rail-
roads absolute liability.
[5. Whether the deliberate and intentional entry upon a railroad
right of way and tracks by an adult fully cognizant of all the
conditions, and with no circumstances of confusion or inadvert-
ence, may be held, as matter of law, not occasioned by absence
of a fence, not determined.]
Vol. 140—1
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SUPREME COURT OF WISCONSIN. [June
Schwind v. Chicago, M. & St P. R. Co. 140 Wis. 1.
€. Where, in the light of childish tendencies, an injury happens to
a child ten years of age upon the unfenced right of way of a
railroad, the court cannot say. as matter of law, that his devia-
tion onto the railroad grounds would have so certainly occurred
had a fence been interposed as to warrant reversing a finding
that the injury was caused in whole or in part by the absence
of a fence.
7. In an action for personal injuries happening to a child walking
upon an unfenced right of way. it is not error to instruct the
jury to consider whether a fence would have "prevented or
tended to prevent" plaintiff's entry on the right of way.
8. A verdict of $10,000 for damages sustained by a child ten years
of age, consisting of loss of his left arm close to the shoulder,
a cut on his head, and bruises and scratches on his face, which
was held not excessive by the trial court, will not be disturbed
on appeal.
Appeal from a judgment of the circuit court for Milwau-
kee county : Oeren T. Williams, Circuit Judge. Affirmed.
Plaintiff was injured by being run down by defendant's
engine at a point south of Keservoir avenue and near Hum-
boldt avenue in the city of Milwaukee. At that place the
defendant maintained several substantially parallel tracks
for various purposes. The railroad premises were bounded
on the north by Reservoir avenue, a narrow unpaved street
running east and west. Coming from the north, Bremen
street terminated in Reservoir avenue, and some two blocks
east Humboldt avenue, a main business thoroughfare, crossed
the railroad tracks.. Reservoir avenue connected Bremen
street and Humboldt avenue, but on the day in question was
very muddy and unpleasant for passage. The railroad
grounds were in better condition, and there was a much used
foot-path along one of the tracks, the third or fourth south
of Reservoir avenue. Plaintiff, a boy about ten years old,
of apparently average intelligence, was sent from his home
on Bremen street near Reservoir avenue to a place on Hum-
boldt avenue, also north of Reservoir avenue. He started
southward on Bremen street, incumbered by a basket for gro-
ceries, and passed onto the railroad grounds and took the path
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3] JANUARY TERM, 1909. 3
Schwind v. Chicago, M. A St P. R. CJo. 140 Wis. 1.
above mentioned along the so-called roundhouse track, where
he was injured by an engine coming up behind him. The
railroad grounds were not inclosed by any fence. The jury
found by special verdict in the first answer that the place in
question was not depot grounds, and, by answer to the sixth
question, that plaintiff's injury was caused in whole or in
part by the fact that the defendant company had not fenced
its right of way at the point where the plaintiff entered upon
it Other negligence was also foimd as the proximate cause
of plaintiff's injury, as also the absence of contributory n^-
ligence.
[Plaintiff was drawn under the wheels of the engine op
tender, which cut off his left arm close to the shoulder.
Plaintiff also received a cut on the head, and his face was
bruised and scratched, but he otherwise received no injury.
The verdict was for $10,000.]
After a motion for a new trial, and also a motion to re-
verse the answer to the sixth question, among others, had been
overruled, judgment was entered for the plaintiff, from which
the defendant appeals.
For the appellant there was a brief by C. H. Van Alstine
and H. J. Killilea, and oral argument by Mr, Van Alstine.
For the respondent there was a brief by O'Connor, Schmiiz
& Wild, and oral argument hj A, J. Schmitz,
Dodge, J. Appellant's first contention is that the locus in
quo was in fact depot grounds, although he assigns no error
either upon the answer to the first question in the special ver-
dict or to the refusal of the court to set it aside. Disregard-
ing such omission, however, there was much evidence intro-
duced with reference to the use which was made of the vari-
ous tracks as well as of the location of the place of injury
with reference to any station, and the jury were aided by a
view in passing on accessibility to the public for loading
freight. The question whether a given place is or is not de-
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4 SUPKEME COURT OF WISCONSIN. [Junu
Schwind v. Chici^o. M. A St. P. R. Co. 140 Wis. 1.
pot grounds, within the meaning of sec 1810, Stats. (1898)^
is ordinarily a question of fact Grosse v. C. & N. W. R.
Co. 91 Wis. 482, 65 N. W. 185; Cole v. D., 8. 8. & A. R.
Co. 104 Wis. 460, 80 K W. 736 ; Habenicht v. C, 8t. P., M.
& 0. R. Co. 126 Wis. 521, 105 K W. 910. In the present
ease the evidence quite clearly was such that the jury within
their province might well have found in the negative as they
did.
The next material contention of the appellant is advanced
under the form of an attack upon the sixth finding that the
plaintiff's injury was caused in whole or in part by the ab-
sence of a fence. Counsel supports his contention mainly by
cases decided under very different statutes and involving radi-
cally different principles and reasons from those applicable
to our statutes : statutes which merely command railroad com-
panies to fence their rights of way, and under which it is held
thi^t failure to do so, being a breach of the law, is an act of
negligence. Such cases are entirely analogous to the deci-
sions of this court under statutes prohibiting excessive rates
of speed and requiring ringing of bell. Sec. 1809, Stats.
(1898) ; Ransom v. C, 8t. P,, M. & 0. R. Co. 62 Wis. 178,
22 N. W. 1^1] Piper v. C, M. & St. P. R. Co. 77 Wis. 247,
46 N. W. 165. The principle there involved is merely that
the failure of .the statutory duty constitutes negligence from
which the courts start with the logical deduction that for in-
juries proximately caused thereby, and not contributed to
by the negligence of the person injured, the company should
be liable. In the application of that rule there has been
much discussion whether proximate causal relation can exist
between the absence of a fence and the intentional entry upon
railroad grounds by one in the full exercise of his faculties
and competent to use judgment, choice, and volition, as in the
two cases cited by appellant from Minnesota. Fezler v. W.
& a. F. R. Co. 85 Minn. 252, 88 N. W. 746; 8chreiner v.
O. N. R. Co. 86 Minn. 245, 90 X. W. 400. It was in the
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S] JANUARY TERM, 1909. 5
Schwind v. Chicago, M. A Bt P. R. Co. 140 Wis. 1.
application of these same principles that Schmidt v. M. & St.
P. R. Co. 23 Wis. 186, was decided, where it was held, un-
der a statute not expressly imposing liability for injury to
persons, that the absence of fence might be proximately causal
of an injury to an infant too young to exercise judgment or
volition. All such cases are, however, beside the question
presented by our present sec. 1810, Stats. (1898), for that,
in addition to commanding the railroads to build a fence, ex-
pressly provides that in its absence "such road shall be liable
for all damages done to cattle, horses or other domestic ani-
mals, or persons thereon, occasioned in any manner, in whole
or in part, by want of such fences or cattle-guards." An in-
jury may well be occasioned in whole or in part by the absence
of a fence, although it may not be proximately caused
thereby. It is enough if such omission gives occasion for
entry on the place of injury. Curry v. C. & N. W. R. Co,
43 Wis. 665, 676.
It has already been decided that proximate causal relation,
including the element of reasonable anticipation, is not neces-
sary, but merely that the railroad's omission shall be cwasa
sine qua nan. Atkinson v. C. & N. W. R. Co. 119 Wis. 176,
96 K W. 529; Hayes v. Mich. Cent. R. Co. Ill TJ. S. 228.
Also, that contributory negligence of the respondent is no
defense. Quackenbush v. W. & M. R. Co. 62 Wis. 411, 22
N. W. 519; 8. C. 71 Wis. 472, 37 IST. W. 834. The purpose
of this statute was to cast upon the railroads absolute liabil-
ity for injuries to cattle whose entry upon the tracks was
made possible by absence of the prescribed fences, and when
it was amended in the revision of 1878 by the addition of
"persons,'' the extension of the same purpose to human be-
ings was obvious.
The question to be decided in this case, therefore, is not
whether the injury to this plaintiff was proximately caused
by the absence of a fence, but whether, in the exact language
of the statute, it was "occasioned in any manner, in whole or
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6 SUPKEME COURT OF WISCONSIN. [June
Schwind v. Chicago, M. & St P. R. Co. 140 Wis. 1.
in part/' by such absence. We need not decide whether the
deliberate and intentional entry upon a railroad right of way
and tracks by an adult fully cognizant of all the conditions,
and with no circumstances of confusion or inadvertence,
might be held, as matter of law, not occasioned by the ab-
sence of a fence, for that case is not presented, and we need
not theorize as to whether presence of a fence would have
availed to counteract such deliberate purpose. On the other
hand, if, by reason of storm, inability to observe, or lack of
knowledge of the exact location, even an adult of full intelli-
gence should wander from a highway onto an adjoining rail-
road right of way, it would be diflScult to discover any rea-
son why he might not come within the intent and purpose of
the act as clearly expressed by its imambiguous words. In
the case of children other elements, however, are presump-
tively present. They lack in greater or less degree, accord-
ing to age, development, and intelligence, the pertinacity of
purpose and the soimdness of judgment of the adult. Their
conduct is often controlled by propensities, temptations, curi-
osities, and obstacles which would not materially affect that
of the adult This consideration has been recognized by this
court in many cases. Meibus v. Dodge, 38 Wis. 300; Busse
V. Rogers, 120 Wis. 443, 98 N. W. 219; Compty.v. C. H.
iStarke D. & D. Co. 129 Wis. 622, 109 N. W. 650. All these
childish tendencies must be taken into account in weighing
probability of childish action. In the light of them, and of
the fact that this boy was on his way from Bremen street east-
ward to Humboldt avenue, a distance of 400 or 500 feet, and
was confronted by the muddy road and tempted by the better
pathway near the railroad tracks, although he in a measure
appreciated and understood the danger of the latter course
and was able to exercise some measure of intelligent judg-
ment, is it certain that, if his entry upon the latter course had
been obstructed by a substantial fence such as the law re-
quires, he would have persisted in overcoming that obstacle,.
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3] JANUARY TERM, 1909. 7
Schwind v. Chicago, M. & St. P. R. Co. 140 Wis. 1.
instead of pursuing the safer pathway along Reservoir avenue,
or even conceived the plan ! We think not. The situation
presented an opportunity for inference by reasonable men
familiar with human and boyish tendencies and with com-
plete knowledge of plaintiffs intelligence and maturity, such
as the jury were qualified to draw, and we cannot say as a
matter of law that his deviation onto the railroad grounds
would so certainly have occurred even had such fence been
interposed that the court should have answered the sixth ques-
tion in the negative. The mere absence of a required ob-
stacle or warning has often been held to support an inference
that its presence would have affected conduct even of mature
persons; much more justifiable is such inference in case of
children or animals. Schmidt v, M. & St. P. R. Co. 23 Wis.
186; Schrier v. M., L. S. & W. R. Co. 65 Wis. 457, 459, 27
N. W. 167; Blomberg v. StewaH, 67 Wis. 455, 30 N. W-
617; Palmer v. N. Y. C. & H. R. R. Co. 112 N. Y. 234, 19
N. E. 678.
Error is assigned upon the charge under the sixth question
because the court told the jury to consider whether a fence
would have ^'prevented or tended to prevent" plaintiffs en-
try on right of way. In this we discover no error. The
tendency of a fence to prevent the entry was proper to be con-
sidered in answering the question whether plaintiffs injury
was caused by absence of such fence as the law requires.
Of course defendant would not be liable merely because of
such tendency alone, but no charge to that effect was given.
The findings that the locus was not depot grounds, and
that absence of fence caused the plaintiff's injury, are suiB-
cient to support judgment for plaintiff, and we need not
discuss any errors assigned or committed in connection witb
other forms of negligence alleged and found against defend-
ant, or with the question of plaintiffs contributory n^li-
gence.
Contention is made that the verdict, $10,000, is excessive.
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8 SUPREME COURT OF WISCONSIN. [June
Mahn v. Chicago & Milwaukee E. R. Co. 140 Wis. 8.
While it is larger than we might approve as an original prop-
osition, yet it is not substantially larger than courts have
often sustained for similar or equivalent injuries. Schmidt
V. M. & St. P. R. Co., supra; Berg v. C, M. & St. P. R. Co.
50 Wis. 419, 7 N. W. Si7 ;Nadau v. White River L. Co. 76
Wis. 120, 43 K W. 1135; Baltzer v. C, M. & N. R. Co.
89 Wis. 257, 60 K W. 716 ; Yerkes v. N. P. R. Co. 112 Wis.
184, 88 N. W. 33 ; Chicago Anderson P. B. Co. v. Rembarz,
51 111. App. 543. It has been held not excessive by tiae trial
oanrt, whose opportunity for knowledge is better than ours.
We cannot feel justified to disturb it.
By the Court. — Judgment affirmed.
Mahit and wife, Respondents, vs. Chicack) & Milwaitkee
Eleotsio Railkoad CoMPAifT and anodier, Appellants.
May 11-— June S, 1909.
Vendor and purchaser of land: Sufficiency of conveyance tendered:
Contract for exchange: Remedies for breach: Equity: Adequacy
of remedy at law: Rescission: Lands occupied hy railroad hy
owner's consent: Cloud upon title.
1. Whether, where a railroad company had a^rreed to procure cer-
tain land and convey It to plaintiffs ''by good warranty deed*'
In exchan^^e for land owned by them, the tender to them of a
full warranty deed from the true owner of the land might be
held a sufliclent performance on the part of the company, even
without covenants of warranty from itself, not determined.
2. Where, in such case, plaintiffs were Informed when such war-
ranty deed was tendered that the grantor named therein held
title "in trust" for the railroad company, and that the consid-
eration for the land had been paid by the company, the nature
of the trust not being disclosed, they were not bound to accept
the deed as a compliance with the contract.
S. Upon the failure of the company to perform on its part the agree-
ment to exchange lands, plaintiffs had the right either to sue
for damages for the breach or to rescind the contract The com-
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3] JANUAEY TERM, 1909. 9
Mahn v. Chicago & Milwaukee E. R. Co. 140 Wis. 8.
pany could not compel them to sell their land for a sum of
money which they had never agreed to accept.
4. I^aintiffB in such case haring brought suit in equity for rescis-
sion of the agreement, the failure of the railroad company to
object may be deemed a consent that the court, by exercise of
its equitable powers, grant whatever form of relief is proper
under the circumstances.
6. The agreement for exchange of lands having been followed by
completed construction of the railroad over plaintiffs' land, no
mere recovery at law could fully re-establish plaintiffs* rights,
since the transaction amounted at least to a consent to the con-
struction of the road, and such a status, onoe o'eated by con-
sent, would not be disturbed.
6. Unless completely rescinded, the written agreement for exchange
would constitute an obstacle to plaintiffs' obtaining statutory
compensation for the part of their land applied to railroad
uses, and even after declaration of rescission it would be a
doud upon the title which equity should remove.
Appeal from a judgment of the circuit court for Milwau-
kee county : J. C. Ludwio, Circuit Judge. Affirmed.
The defendant railroad company laid out and surveyed its
lines approximately north and south through plaintiff's tract
of nearly forty acres, so as to leave about eighteen aa*e8 to
the eastward of the right of way separated from the farm
buildings. A written contract of date April 27, 1907, was
entered into, whereby the plaintiffs agreed to convey all east
of the west line of the 150-foot right of way, and in considera-
tion thereof the railroad company agreed to procure and con-
vey to them approximately the same amount of land on the
west side of its right of way, joining theirs on the south, and
to pay $800 in money, each party to go into immediate pos-
session and the deeds to be passed within thirty days upon
completion of survey. The plaintiffs agreed to convey by
warranty deed and to furnish abstract The company agreed
to convey 'T)y good warranty deed," but said nothing about
the abstract It was not, at the time of the contract, the
owner of the land agreed to be conveyed by it. Possession
was taken by each party and the railroad company proceeded
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10 SUPREME COURT OF WISCONSIN. [Juh».
Mahn v. Chicago & Milwaukee K B. Co. 140 Wis. 8.
I
to grade its right of way, making an excavation which is now
some twenty-seven feet in depth at the deepest point, and lay-
ing its tracks as a part of its line of railroad from Milwaukee
to Chicago. It procured the land on the west side of the
track, taking title, however, in the name of an agent, Joeie^
Shenners, in trust for the company, in order that the record
title should not be embarrassed by a general mortgage upon
all its property then owned or thereafter acquired, under
which, up to the present time, some $10,000,000 of bonds
have been sold. It also paid to the plaintiffs the $800 cash
consideration. On August 3d, after submitting satisfactory
abstract, the plaintiffs tendered warranty deeds and de-
manded deed from the company. The latter offered convey-
ance by warranty deed from said Josie Shenners, who had
good record title. The plaintiffs refused to accept, and on
August 15 th notified the company in writing of their election
to rescind the contract, accompanying such notice with a ten-
der of the money they had received from the railroad com-
pany. This suit was brought to declare rescission of that
contract as a doud upon the title of plaintiffs' said real es-
tate. Receivers of the railroad company having been ap-
pointed in some undisclosed proceeding in United States cir-
cuit court, they were joined as parties defendant. The de-
fendants offered upon the trial to supplement the deed of
Josie Shenners by full covenants of warranty on the part of
the railroad company. The court rendered judgment that
the written contract be rescinded, canceled, and declared null
and void upon delivery to defendants of the said $800 and of
a certain abstract delivered to the plaintiffs. From such
judgment the defendants appeal.
r. W. Spence, of counsel, for the appellants.
Christian Doerfler, for the respondents.
Dodge, J. The first question seriously discussed is
whether the railway company has so failed in performance on
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3J JANUAKY TERM, 1909. 11
Mahn v. Chicago & Milwaukee E. R. Co. 140 Wis. 8.
its part of the contract for the exchange of lands that plaint-
iffs ought not to be held to performance on their part. That
it did fail, and declare its inability, to make conveyance in
technical compliance with its agreement, on demand, is con-
fessed, but whether the tender of a full warranty deed from
the true owner of the land might not be held a suJQScient com-
pliance, even without covenants of warranty from the com-
pany, is, to say the least, doubtful, standing alone. Bateman
V. Johnson, 10 Wis. 1. In the instant case, however, that is
not the only defect With the tender of the deed from Shen-
ners came the information that she held title "in trust** for
the railroad company, and the intimation at least that the
consideration for the land had been paid by the company.
Whether this was a trust duly declared in writing was not
disclosed, nor, if so, whether active or passive. If passive,
so that title at once vested in the railroad company, would not
the lien of the mortgage inmiediately fasten thereon ? If ac-
tive, would the proposed conveyance to plaintiffs be in breach
of it! If there was no express trust, was not the title of
Shenners clouded by the possibility of a resulting trust in
favor of all creditors imder sec. 2078, Stats. (1898), subject
to plaintiffs' ability to overcome the presumption of fraudu-
lent intent created by that statute ! We do not think a con-
veyance c|isting upon the grantee the burden of answering at
his peril such conundrums as these is the equivalent of the
perfect title for which plaintiffs had agreed to convey their
lands.
When the railroad company thus failed to carry out its
part of the executory agreement plaintiffs had the right either
to sue for damages for the breach or to declare their election
to rescind. The company, being unable to carry out the con-
tract to exchange certain lands, could not compel plaintiffs to
sell their land for a sum of money which they had never
agreed to accept. ATcerly v. Vilas, 15 Wis. 401, 413 ; Booth
V, Ryan, 31 Wia. 45, 58; Lulz v. Compton, 77 Wis. 684, 4©^
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12 SUPREME COURT OF WISCONSIN. [Jukb
Mahn y. Chicago & Milwaakee E. R. Co. 140 Wie. 8.
N. W. 889. They adopted the latter course, thereby, of
course, surrendering all rights, equitable or otherwise, in the
lands ^ich the company had agreed to convey them and
their right to retain the money consideration which had been
paid them. They accordingly tendered full surrender and
repayment. Their right then became perfect to receive from
the railroad company all that they had parted with to it in
pursuance of the contract. Doubtless, so far as a complete
enforcement of that right could be had in a court of law, the
plaintiffs should there seek it, and not apply to a court of
equity imnecessarily for relief; but they have applied to a
<;ourt of equity and the defendants have raised no objection
to their so doing, which of itself may be deemed a consent
that the court, by exercise of its equitable powers, may con-
sider and grant whatever form of relief is proper under the
circumstances. Smith v. Putnam, 107 Wis. 155, 82 N. W.
1077, 83 N. W. 288. Apart from such consideration, how-
ever, the situation is so complicated by the construction, now
completed, of a public railroad over the land that no mere re-
covery at law can fully re-establish plaintiffs' rights. But
for that fact they might seek recovery of the possession of all
their land with which they had parted in pursuance of the
contract. But that transaction had at least served the pur-
pose of a consent to the construction of the railroad over a
portion of this land, and the policy of our statute law is
against the disturbance of such a status once created with the
consent of the owner. Sec. 1852, Stats. (1898) ; Hanlin v.
C. & N. W. R. Co. 61 Wis. 515, 21 N. W. 623; Bahcock v.
C. & N. W. R. Co. 107 Wis. 280, 83 K W. 316; Stewart v.
Milwaukee E. R. & L. Co. 110 Wis. 540, 86 N. W. 163 ;
Brickies v. Milwaukee L., H. & T. Co. 134 Wis. 358, 114 N.
W. 810. Still the written agreement, unless completely re-
scinded, continually confronted plaintiffs as an obstacle to
obtaining statutory compensation for that part of the land
applied to railroad uses. The question of the effectiveness
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3] JANUARY TERM, 1909. 1?
Mahn t. Chicago A Milwaukee E. R. Co. 140 Wis. 8.
of their attempted rescission in pais was, at the time of the
commencement of the action, one which could be answered
finally only by a decision of a court. The contract, therefore^
presented, even after declaration of rescission, a cloud upon
the title of their lands, and an obstacle to the sale thereof, the
removal of which is inherently a function of equity, and,
brides, is specially and additionally enjoined by see. 3186,
Stats. (1898).
It seems to us obvious that the definement of the parties^
rights by a decree in equity is essential to anything like a
complete re-establishment of the status quo, and that no mere
recovery at law of either damages or the possession of the
land subject to the right of way can be full adequate relief.
We agree with the trial court that by reason of the failure and
inability of the railroad company to convey to the plaintiffs
a clear and unquestionable title to the lands on the west side
of the right of way, the plaintiffs had a right to rescind the
contract and did effectively exercise that right, except that
they could not remove its effect as a consent to the occupa-
tion of the proposed right of way by the railroad, from which
must result, of course, the continuance of that occupation
and the resulting duty to make compensation in the manner
prescribed by sec 1852, Stats. (1898). This we understand
to be the effect of the judgment entered by the circuit court,
although not therein fully expressed.
By the Court. — ^Judgment affirmed.
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14 SUPKEME COUET OF WISCONSIN. [Junb
Stevenson v. Milwaukee County, 140 Wis. 14.
Stbvinsow, Respondent, vs. Milwaukee County, Appel-
lant
Map IZ—June S, 1909.
<hwrt8: Inherent power 9: Appointments: Neceisarf attendant$: De-
terminatien of necessity: Discretion: Compensation of special
attendants,
1. The power to appoint necessary attendants upon the circuit
court is inherent in that court in order to enable it to properly
perform the duties delegated by the constitution, and Is recog-
nized by sec. 2481, Stats. (1898), as amended by ch. 224, Laws
of 1903.
2. In the exercise of its inherent power to appoint necessary at-
tendants it is for the presiding judge of the circuit court to
determine the necessity. In that respect he is vested with a
broad and liberal discretion.
{3. Whether the power of such Judge in determining the necessity
of appointment of attendants is subject to reyiew In any case,
not decided.]
4. Where it seema necessary a circuit judge may appoint a court
attendant in addition to the sheriff and his deputies for such
time as the necessity exists, notwithstanding the statutory au-
thority given the sheriff to appoint special deputies under a
special order of such judge authorizing an additional number
of deputy sheriffs.
^. The compensation of necessary attendants appointed by the cir-
cuit judge is the per diem allowed deputy sheriffs for the time
expended during sessions of the court, to be recovered by cer-
tification in the same manner as fees of jurors are paid.
Mabbuall, J., dissents.
Appeal from a judgment of the circuit court for Milwau-
kee county : Geo. W. Bubnell, Judge. Reversed.
The plaintiff filed with the county board two claims against
the county of Milwaukee aggregating $749.99 for services as
bailiff from August 1, 1907, to May 1, 1908, in branch 1 of
the circuit court for Milwaukee county. The county board
disallowed the claims and plaintiff appealed to the circuit
court, and the court f oimd as follows :
That William Stevenson was duly appointed by the circuit
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3] JANUAET TERM, 1909. 15
Stevenson v. Milwaukee County, 140 Wis. 14.
court for Milwaukee county to serve as bailiff and attendant
upon branch 1 of said court on the 29th day of March, 1907,
and hsu3 since been likewise duly appointed to said position
for erery succeeding term of said court ; that he, haring duly
qualified, has, since said appointment, performed the senrices
•of such bailiff and court attendant properly and faithfully
and to the satisfaction of the judge of said court at all times
since his original appointment ; that the circuit court for Mil-
waukee county and the judges thereof had on March 29,
1907, and at all times since said date have had, power to
4ippoint such court attendants to aid in the administration of
justice as they might deem necessary, and that the county of
Milwaukee was and is liable for a reasonable compensation
for the services of such appointees as said court may have
made ; that the appointment of William Stevenson to said of-
fice of bailiff and court attendant and the performance by him
of his duties as such court officer were not invasions of the
rights or official prerogatives of the sheriff of Milwaukee
county in the premises ; that the said Stevenson received com-
pensation from the county of Milwaukee by virtue of author-
ity from the board of supervisors of said county for his said
services as bailiff and attendant upon branch No. 1 of the cir-
cuit court for Milwaukee county for the first four months of
his said services, to wit, from April 1 until July 31, 1907,
at the rate of $1,000 per year; that said services of said Stev-
enson were and are reasonably worth the sum of $1,000 per
year; that William Stevenson duly filed in the manner pre-
scribed by law on April 10, 1908, a verified claim for serv-
ices as bailiff as aforesaid for a period of eight months from
August 1, 1907, to April 1, 1908, in the amount of $666.66,
and on May 1, 1908, a further claim for his said services for
the month of April, 1908, in the sum of $83.33, both ^f which
claims were disallowed by the county board of Milufaukee
county at a regular meeting thereof held June 2, 1908 ; that
-the two claims of William Stevenson for services disallowed
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16 SUPKEME COUET OJ WISCONSIN. [Junr
Stevenson y. Milwaukee County, 140 Wie. 14.
by the county board whick formed the basis of the appeal
herein were reckoned upon a basis of compensation at the rate
of $1,000 per year.
And the court concluded thereon : That the county of Mil-
wcmkee is indebted to said William Stevenson for his serv-
ices as bailiff and attendant upon branch No. 1 of the circuit
court for Milwaukee county for the period beginning August
1, 1907, to and including August 1, 1908 ; that the two claims
for services as bailiff and attendant upon branch Na 1 of the
circuit court of Milwaukee county, dated, respectively, April
10, 1908, and May 1, 1908, for the amounts, respectively,
$666.66 and $83.33, were lawful and proper claims agaifist
the county of Milwaukee and were improperly disallowed by
the county board of Milwaukee county ; that William Steven-
son is entitled to judgment against the county of Milwaukee
in the sum of $749.99, together with interest from June 2,
1908, at six per cent, per annum, and taxable costs herein.
Judgment was rendered accordingly, from which this appeal
was taken.
For the appellant there was a brief by A. C. Backus, dis-
trict attorney, and Norman L. Baker, assistant district at-
torney, and oral argument by Mr. Baker.
For the respondent there was a brief by Qua/rles, Spence &
Quarks, and oral argument by T. W. Spence.
Kebwin, J. On the 30th day of March, 1907, and twa
days before the commencement of the April term of the cir-
cuit court for Milwaukee county, L. W. Halsey, circuit
judge, made the following order :
"By virtue of the authority vested in me by sec. 2431 of
the Eevisod Statutes of Wisconsin, as judge of the circuit
court of Mihcaukee county, branch No. 1, I hereby constitute
and appoint William Stevenson as bailiff and attendant upon
branch No. 1 of the circuit court of Milwaukee county for
and during the April term thereof.
"Lawri^ce W. Halsey, Circuit Judge.*'
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3] JANUARY TERM, 1909. IT
Stevenson v. Milwaukee County, 140 Wis. 14.
Similar orders of appointment for subsequent terms were
made, and, as will be seen from the statement of facts, the
court below allowed the plaintiff compensation at the rate of
$1,000 per year for services as court attendant under the ap-
pointment. Authority to make the appointment is questioned
by the appellant, Milwaukee county, and mainly upon the
groimd that the judge did not find or determine that a neces-
sity existed for such appointment. It is claimed that, be-
cause the sheriff of the county appointed two deputies to at-
tend on the court presided over by Judge Halsey, no other
attendant was necessary, and therefore the judge had no
power to make the appointment.
We shall not enter into any extended discussion of the
power of circuit judges to appoint attendants, because it
seems to be well settled that the power exists in proper cases.
Under the constitution of this state the judicial powers of the
state in matters of law and equity are vested in a supreme
court, circuit courts, and other courts provided for in that
instrument. The circuit courts of this state, therefore, are
created by the constitution and do not depend solely upon
statute for their powers. Independent of statute such con-
stitutional courts have inherent power to make such rules and
orders as may be necessary to properly perform their func-
tions.
"They shall also have the power to issue writs of "habeas
corpus, mandamus, injimction, quo warranto, certiorari, and
all other writs necessary to carry into effect their orders, judg-
ments and decrees, and give them a general control over in-
ferior courts and jurisdictions." Sec. 8, art. VII, Const.
The power to appoint necessary attendants upon the court
is inherent in the court in order to enable it to properly per-
form the duties delegated to it by the constitution. This
po^r has been recognized by the legislature in sec. 2431,
Stats. (1898), as amended by ch. 224, Laws of 1903, which
reads as follows:
Vol. 140-2
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18 SUPREME COURT OF WISCONSIN. [June
Stevenson v. Milwaakee County, 140 Wis. 14.
"The judges of the circuit court may prescribe all such
rules of practice and rules to regulate their proceedings and
facilitate the administration of justice as they may deem nec-
essary, not inconsistent with law or the rules of practice pre-
scribed by the justices of the supreme court. Any officer of
the court or court attendant who may be appointed by the
judge of any circuit court, shall have the same powers and
authority in court, during each session thereof, as the sheriff
of the county."
This section by necessary inference recognizes power in the
circuit courts to appoint attendants, and the members of this
court so held at an early day. Speaking through Chief Jus-
tice Dixon the members of this court said:
"It is a power inherent in every court of record, and espe-
cially courts of last resort, to appoint such assistants, and
the court itself is to judge of the necessity. This principle is
well settled and familiar, and the power so essential to the
expedition and proper conducting of judicial business that it
may be looked upon as very doubtful whether the court can
be deprived of it. As a power judicial and not executive or
legislative in its nature, and one lodged in a co-ordinate
branch of the government separated and independent in its
sphere of action from the other branches, it seems to be under
the protection of the constitution, and therefore a power
whidi cannot be taken from the court, and given to either the
executive or legislative departments, or to any officer of either
of those departments." In re Janitor of Supreme Court, 35
Wis. 410; Crawford Co, v. Le Clerc, 3 Pin. 325; State ex
rel Gubbins v. Anson, 132 Wis. 461, 112 N. W. 475.
Other courts have announced the same doctrine. State ex
rel Eovey v. Noble, 118 Ind. 350, 21 N. E. 244, 4 L. R. A.
101; State ex rel Douglas v. Westfall, 85 Minn. 437, 89
X. W. 175 ; In re Court Officers, 3 Pa. Dist. Rep. 196 ; Board
of Comm'rs v. Stout, 136 Ind. 53, 35 K E. 683, 22 L. R. A.
398 ; Ex parte Kellogg, 6 Vt. 509. "^
As we understand the appellant's contention, the power to
appoint necessary court attendants is not seriously denied, but
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3] JANUARY TERM, 1909. 19
Stevenson y. Milwaukee County, 140 Wis. 14.
it is insisted that the necessity did not arise in this case.
The power to determine the necessity must rest somewhere,
and no place, we think, more appropriately than with the
judge making the appointment, for it is for him to determine
when a necessity exists in the administration of the business
of his court ; and it necessarily follows from the nature of the
case that a broad and liberal discretion is vested in the judge
respecting this power. Whether the power of the judge in
determining the necessity is subject to review in any case,
and, if so, in what manner and under what circumstances,
we need not and do not decide, because in the case before us
the record shows no abuse of power by the judge in making
the appointment.
Some contention is made that the prerogative of the sheriff
was infringed by the judge in appointing an attendant vested
with the power of a deputy sheriff, but this by no means fol-
lows from the record. On the contrary, it appears that the
presence of the sheriff in court and participation within the
scope of his right to act, either by himself or his deputy, was
not interfered with. We think it clear that where it seems
to the judge necessary that an attendant upon the court, in
addition to the sheriff and his deputies, should be appointed,
it is his right to make the appointment for such time as the
necessity exists.
Our attention is called to sec. 725, Stats. (1898), which
makes it the duty of the sheriff to attend upon the circuit
court during its session and file a list of his deputies, not ex-
ceeding three ; but this provision does not deprive the judge,
in case a necessity exists, of the power of appointing an at-
tendant upon the court. When that necessity exists must be
determined by the judge of the court in which the appoint-
ment is made. Subd. 3, sec. 725, Stats. (1898), provides
that the sheriff shall attend upon the circuit court during its
sessions and file a list of his deputies, who are to receive a
per diem for attendance on court, and further that the court
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20 SUPKEME COUKT OF WISCOXSIK [June
Stevenson v. Milwaukee County, 140 Wis. 14.
may by special order authorize a greater number of deputi^
to attend when the court shall be engaged in the trial of any
person charged with crime; and sec. 2431, Stats. (1898), as
amended by ch. 224, Laws of 1903, provides that the person
appointed by the judge shall have the same powers and au-
thority in court during its session as the sheriff of the county.
If the court or judge had attempted to interfere with the con-
stitutional or statutory powers of the sheriff, a different ques-
tion would be presented.
The court below allowed a recovery by the plaintiff on the
basis of $1,000 per year upon the ground that this amount
was reasonable pay for the plaintiff's services. Of course the
general rule is well understood that where fees of an officer
are fixed by statute no other compensation can be recovered.
Crawford Co. v. Iowa Co. 2 Pin. 368; Portage Co. v. Wau-
paca Co. 15 Wis. 362; St. Croix Co. v. Webster, 111 Wis.
270, 87 N. W. 302 ; Douglas Co. v. Sommer, 120 Wis. 424,
98 N. W. 249. Sec. 733, Stats. (1898), provides specifically
how fees for attendance required by law on any court shall be
paid out of the treasury of the county "in the same manner as
the fees of jurors attending such courts are to be paid."
Subd. 22, sec. 731, provides that the necessary deputies shall
receive for attendance on the circuit court $2 a day, to be paid
out of the county treasury. It follows that the fees of neces-
sary attendants appointed to attend upon court shall be the
per diem allowed deputy sheriffs for the time expended dur-
ing the sessions of the court. This compensation can be re-
covered only in the manner provided by the statutes, namdy,
by certification in the same manner as fees of jurors are paid.
This seems to follow from the statutes and decisions of this
court. Sees. 733, 2660, Stats. (1898) ; Northern T. Co. v.
Snyder, 113 Wis. 516, 89 K W. 460; Oneida Co. v. Tib-
biis, 125 Wis. 9, 102 K W. 897; Philler v. Waukesha Co.
139 Wia 211, 120 K W. 829.
It does not appear from the record just what the oertifica-
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3] JANUARY TERM, 1909. 21
Stevenson v. Milwaukee County, 140 Wis. 14.
tion was, since the certificates do not appear; but the state-
ment in the bill of exceptions must be regarded as a verity,
and from this it does not appear that there was certification
for all the time claimed. It appears from the record that the
plaintiff was paid for all services up to July 31, 1907, and
that in this action the certification only shows attendance
from July 1, 1907, to January 28, 1908. Besides, the services
were allowed at the rate of $1,000 per year. It may be that
upon another trial the plaintiff may be able to show that his
claim was properly verified for the time allowed as required
by sec. 2560, Stats. (1898), and, if so, he will be entitled to
recover the per diem allowed by statute to deputy sheriffs for
attendance upon the sessions of the circuit court for such time
as he attended. It follows that there must be a new trial.
By the Court — The judgment of the circuit court is re-
versed and the cause remanded for a new trial.
Maeshall, J. (dissenting). 1 do not think In re Janitor
of Supreme Court, 35 Wis. 410, 419, should cut any figure in
the decision of this case. No provision was made by the
written law for an attendant upon this court, so resort was
had to the inherent power mentioned, the necessity being un-
questionable. Neither do I think sec. 2431, Stats. (1898),
as amended by ch. 224, Laws of 1903, should cut any figure,
except in so far as it recognizes an inherent power of appoint-
ment to be exercised in case of necessity, considering the
written law making quite remote any such event.
As to circuit courts the power of appointment of court at-
tendants in the ordinary is in abeyance because the legisla-
ture, manifestly, has so willed. It has provided for such
attendants and their compensation and manner of payment.
Subd. 3, sec. 725, Stats. (1898), provides that the sheriff of
each county shall attend the sessions of the court therein with
his deputies to the number of not to exceed three, who shall
receive a per diem for each attendant, and that, by special
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22 SUPREME COURT OF WISCONSIN. [June
Stevenson y. Milwaukee County, 140 Wis. 14.
order, the court may authorize a greater number of deputies
when it shall be engaged in the trial of any person charged
with a crime. Subd. 22, sec 731, Stats. (1898), provides
that a deputy, in attending court, shall receive compensation
at the rate of $2 per day for each day, to be paid out of the
county treasury. Sec. 733, Stats. (1898), provides that all
such fees shall be paid out of the county treasury of the
county wherein such service shall have been rendered in the
same manner as fees of jurors attending such court are to be
paid. Sec. 2560, Stats. (1898), provides that at the end of
every term of a circuit court or within ten days thereafter
the clerk of the court shall give to each juror a certificate of
the number of days attended by him upon the court ; that the
juror shall receipt therefor before delivery thereof to him,
and that the county treasurer shall pay the amount due to
him.
Thus it will be seen, the written law amply provides for
circuit court attendants, except in emergency cases of a tem-
porary character, the appointing power being lodged in the
sheriff; also ataply provides for payment of such attendants
at a specified amount for each day's actual attendance upon a
session of court, and provides for an auditing oflScer, to wit,
the clerk of the court, as regards the number of such days' at-
tendance, and makes it mandatory on the county treasurer to
recognize such audit by paying every holder of the required
evidence of attendance $2 per day. Neither the circuit judge
nor the county board has any duty whatever in respect to the
matter, except, doubtless, the former should supervise the
clerk in respect to performance of his duty.
CoxL there be any doubt but that, in view of the situation
stated, the legislative idea is that the matter of court attend-
ants and payment thereof shall be governed by the written
law so far as possible. It may well be that courts are not
obliged to bow to the legislative will in such matters, but they
ought to in all cases where their constitutional authority is
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3] JANUARY TERM, 1909. 23
Stevenson v. Milwaukee County, 140 Wis. 14.
not prejudicially interfered with. The written law does not
leave any occasion for use of the court's inherent power, ex-
cept in purely emergency cases, and it is manifest that no
such case existed in the instance hefore us. When the legis-
lature, without prejudicially trenching upon judicial power,
has lodged jurisdiction over a particular matter completely
elsewhere than where it has commonly been exercised, with
reasonable expectation that the new instrumentality will ade-
quately deal with such matter, though such power, if lodged
in the court by the organic law, could not be prejudicially
taken away, if there is no good reason why the court should
not regard itself substantially superseded in such matter, it
should do that, and its failure in that respect should be viewed
as jurisdictional error. Burnham v. Norton^^^ 100 Wis. 8, 75
K W. 304.
The opinion of the court goes upon the ground that the ap-
pointment in question was made to meet a necessity, but it
seems the conception of necessity fails to give due significance
to the ample provision for court attendants in the written law,
and to appreciate that there cannot well be any necessity for
a judicial appointment except in case of the number of depu-
ties competent for the sheriff to appoint being insuflScient, or
refusal on his part to appoint competent persons. I under-
stand there was nothing of the kind in this case. The learned
circuit judge evidently supposed that since court attendants
generally are needed, that was all the necessity required to
enable him to make such appointment, while, in fact, the fur-
ther element of refusal or inability of the sheriff to furnish
the necessary attendants was required. In my judgment, the
appointment in this case, since the sheriff stood ready to fur-
nish a proper attendant, was akin to usurpation.
I, of course, agree that, in any event, the appointee is only
entitled to compensation at the rate of $2 per day. However,
the opinion of the court fails to make plain that, assuming the
respondent to be entitled to pay at the rate of $2 per day for
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24 SUPREME COURT OF WISCONSIN, [Junb
Stevenson v. Milwaukee County, 140 Wis. 14.
the numbers of days he actually attended sessions of the court,
the county board has nothing to do with the matter. The
whole proceeding of presenting the claim to such board for
allowance was wrong and the reversal and remand for a new
trial, as it is liable to be understood, i. e. that respondent can
recover on such trial for such days' attendance as may be cer-
tified under sec. 2560, Stats. (1898), in my opinion is wrong.
No action of this nature is necessary or proper. The county
board has no jurisdiction of the subject matter, therefore the
circuit court did not obtain any. The cause should be re-
manded with directions to dismiss with costs, but without
prejudice to respondent's obtaining a certificate from the
clerk of the circuit court of the nimiber of days he actually
attended upon sessions of the court, as shown by the court
journals, and obtaining thereon of the county treasurer $2 for
each such day. Under the decision it is the duty of such
clerk to give such certificate, and mandamus is the remedy
for refusal. Upon presentation of such certificate to the
county treasurer it will be his duty to pay as aforesaid, and
mandamus is the remedy for refusaL The written law, as
we have shown, in unmistakable terms, provides for payment
of court attendants in that manner and such manner is ex-
clusive. That is the effect of Oneida Co. v. Tibbits, 125
Wis. 9, 102 N. W. 897, and Philler v. Waukesha Co. 139 Wis.
211, 120 N. W. 829, if there is any ambiguity in the mat-
ter. The county board has no more to do with the subject
than it has with the payment of jurors, state witnesses, court
reporter, or the judge himself.
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3] JANUARY TERM, 1909. 25
Cawker t. Central B. P. Co. 140 Wis. 26.
Cawkeb and others, Executors, etc., Respondents, vs. Cen-
TSAL BiTULiTHio Pavinq Company, imp., Appellant.
May 12-^une 5, 1909.
Pleading: Demurrer: Constitutional law: SpeciaJ laws: Defective mu-
nicipal contract: Curative act: Ratification ty municipality: Ac-
tion: Quantum meruit.
1« Where a taxpayer has brought an action against a city and a
paving contractor to enjoin the collection of the contract price,
an affirmative claim set up by the contractor by cross-complaint
against the city for a recovery on implied assumpsit, if sus-
tained, defeats the taxpayer's action, and hence he may chal-
lenge the legal sufficiency of the cross-complaint on demurrer.
2. Oh. G77, Lfaws of 1907, purporting to validate certain classes of
paving contracts theretofore made by "any municipal corpora-
tion of the first class," relates to the city of Milwaukee, which
is the only city then or ever theretofore In the first class of
cities by legislative classification according to population, and
relates wholly to past conditions. It is therefore a special law
amending the charter of that city and within the condemnation
of sees. 31, 32. art. IV, Const
3. Where a municipal paving contract Is Invalid for failure to com-
ply with charter requirements, the city cannot thereafter vali-
date It by ratification without compliance with such charter
provisions.
4. Where a street-paving contract is void for failure to comply with
charter provisions, the contractor cannot go on 'and complete
it and recover upon quantum meruit.
Appeal from an order of the circuit court for Milwaukee
county: W. J. Turner, Circuit Judge. Affirmed.
The appeal is from an order sustaining a demurrer to the
supplemental answer, counterclaim, and cross-complaint of
the appellant
For the appellant there was a brief by WinTcler, Flanders,
Botttim dk Fawsett, attorneys, and James 0. Flanders and
/. M. Head, of counsel, and oral argument by Mr. Flanders.
Among other references upon the part of the appellant were
the following: Sees. 18, 31, art IV, Const. ; Adams v. Beloit,
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26 SUPREME COURT OF WISCONSIN. [June.
Cawker v. Central B. P. Co. 140 Wis. 25.
105 Wis. 363, 81 N. W. 869; Warner v. Knox, 50 Wis. 429,,
7 N. W. 372; ch. 322, Laws of 1875; Cawker v. Cent. B. P.
Co. 133 Wis. 29, 34, 113 N. W. 419; Boyd v. MilwauJcee, 92
Wis. 456, 66 N. W. 603 ; Johnson v. MilwavJcee, 88 Wis. 383,
60 N. W. 270; Evans-Snyder-Buel Co. v. McFadden, 105
Fed. 293 ; Stevens Point B. Co. v. Reilly, 4:4: Wis. 295 ; Thom-
son V. Elton, 109 Wis. 589, 85 K W. 425; McGilUvray v.
Joint School List. 112 Wis. 354, 88 N. W. 310; Rice v. Ash-
land Co. 114 Wis. 130, 89 N. W. 908 ; Schneider v. Menasha,
118 Wis. 298, 95 K W. 94; Batch v. Beach, 119 Wis. 77, 95
K W. 132 ; Martin v. Fond du Lac Co. 127 Wis. 586, 106 N.
W. 1095; Appleton W. Co. v. Appleton, 132 Wis. 563, 113
N. W. 44 ; Lawrence v. Milwaukee, 45 Wis. 306.
For the respondents there was a brief by Ryan, Ogden &
Bottum, and oral argument by L. M. Ogden.
Among other references upon the part of the respondents
were the following: Ch. 677, Laws of 1907 ; Allen v. Milwau-
kee, 128 Wis. 678, 106 N. W. 1099; Ledebuhr v. Wis. T.
Co. 115 Wis. 214, 91 N. W. 1012; Bostwick v. Mut. L. Ins,
Co. 122 Wis. 323, 99 K W. 1042 ; Chippewa B. Co. v. Du-
rand, 122 Wis. 85, 95, 99 K W. 603.
Timlin, J. The plaintiffs, executors and trustees under
the will of E. H. Cawker, deceased, as resident taxpayers of
the Sixteenth ward of the city of Milwaukee, brought this
suit on October 26, 1906, against the city of Milwaukee, cer-
tain of its officers, and the appellant, to enjoin the city and
these officers from accepting certain street-paving work done
by appellant, from countersigning or paying over to appel-
lant any city order or orders in payment for such work, and
to have the contract for such work between appellant and the
city adjudged void. This complaint was upheld against de-
murrer of the appellant in Cawker v. Milwaukee, 133 Wis.
35, 113 N. W. 417. The appellant answered this complaint,
and this answer contained what the pleader called a coimter-
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8] JANUARY TERM, 1909, 2T
Cawker v. Central B. P. Co. 140 Wis. 25.
claim against the plaintiffs, and a cross-complaint against
the city and its officers, and, among other forms of relief, de-
manded that the city authorities be required to make a reas-
sessment in case the original special assessment was held void.
There was a general demurrer by the plaintiffs, which was
overruled by the decision of this court in Cawker v. Cent. B.
P. Co. 133 Wis. 29, 113 K W. 419, holding that the cross-
complaint made a valid showing entitling the appellant to a
reassessment, but not passing upon other claims of the
pleader, under the rule that if one good cause of action or de-
fense be found in the pleading a general demurrer thereunta
must be overruled. Instead of proceeding to a reassessment,
the appellant, after the cause was remitted to the circuit
court, pleaded what it termed "a fourth and further answer
and defense to the complaint in this action and ... a coun-
terclaim against the plaintiffs, and ... a cross-complaint
against the city of Milwaukee" and its officers. The chief
point in this supplemental pleading was that the paving con-
tract in question was by a curative statute (ch. 677, Laws of
1907, published July 18, 1907) validated, ratified, and con-
firmed by the legislature. By a "fifth cause of action and
by way of counterclaim and cross-complaint, and also by way
of answer and defense to the complaint in this action," the
appellant sought to recover from its codefendant, the city of
Milwaukee, the reasonable value of the material and labor
expended in good faith and at the instance and request of
the city in paving the street in question. The prayer fol-
lowing these two pleadings is that the complaint be dismissed,
the paving contract be declared affirmed and validated by ch.
677, Laws of 1907, and the city authorities authorized to pay
for the work as provided in the contract ; but if the contract is
not thus validated and affirmed, that the appellant recover
judgment against its codefendant, the city, for the reasonable
value aforesaid, less payments credited thereon. To this^
pleading the plaintiffs demurred on the ground that the same
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28 SUPREME COURT OF WISCONSIN. [June
Cawker t. Central B. P. Co. 140 Wis. 25.
did not state facts sufficient to constitute a defense to the ac-
tion or a counterclaim against the plaintiffs. The demurrer
was sustained and the case is brought here as stated.
The unusual situation of the plaintiffs with respect to this
amended pleading is quite apparent, but, looking to the sub-
stance, anything in the nature of an affirmative claim by the
appellant against its codefendant, the city, which would en-
title the appellant to a recovery on this contract or on such
matters growing out of this contract against the city, must
certainly defeat the taxpayers' action to restrain such pay-
ment, and the plaintiffs may, treating such matters as a de-
fense to their cause of action, challenge the legal sufficiency
of such pleading on demurrer.
It is quite apparent that this new pleading raises only two
points: (1) Is the curative statute (ch. 677, Laws of 1907) a
valid law? (2) Can a contractor, after having entered into
a contract in writing with a city, invalid because failing to
comply with charter provisions designed to secure competi-
tion, after completing the paving work described in such con-
tract, and after the acceptance of such work by the city,'re-
cover upon implied assumpsit the reasonable value of the
work and materials done and placed in the street ? The con-
stitution of this state (art. IV, sees. 31, 32) forbids the en-
actment of any special law to amend the charter of a city,
and requires the legislature to provide general laws for **the
transaction of any business'' thus prohibited, and requires
that such general laws be uniform in their operation through-
out the state. The curative act in question applies "in all
cases where any municipal corporation of the first class in
this state shall have heretofore entered into any contract or
contracts with any person, firm or corporation for the con-
struction of any pavement or pavements, which contract or
contracts are illegal because requiring the use of patented
materials in whole or in part," etc. Milwaukee is the only
city which now is, or which ever in the past has been, in this
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3] JANUARY TERM, 1909. 29
Ayitt V. Merz, 140 Wis. 29.
first class according to legislative classification by population.
The act, relating wholly to past conditions, is therefore spe-
cial, as much so as if the city of Milwaukee were expressly
named therein. Boyd v. Milwaukee, 92 Wis. 456, 66 N. W.
603. It is argued that this makes impossible the enactment
of curative statutes relating to mimicipalities. But we do
not see that any such result follows. We must hold that the
curative statute in question is unconstitutional and void.
The contract between the appellant and the city was ex-
pressly adjudged to be invalid in Cawker v. Milwaukee, 133
Wis. 35, 113 N. W. 417, for failure to comply with the char-
ter provisions relating to contracts for the use of patented ar-
ticles. These provisions were intended to secure and make
effective competition between bidders. To now hold that the
city might, without compliance with such provisions, ratify
the contract and so validate it, or that the appellant might,
notwithstanding the invalidity of the contract on this ground,
go on and complete it and recover upon quwntum meruit^
would be to make these charter provisions practically inef-
fective. Former decisions of this court forbid such recov-
ery by the appellant. Chippewa B. Co. v. Durand, 122 Wis.
85, 99 X. W. 603, and cases cited in opinion ; Appleton W.
Co. V. Appleton, 132 Wis. 563, 113 N. W. 44. The order
sustaining the demurrer must be affirmed.
By the Court. — ^It is so ordered.
Witt, Respondent, vs. Merz, imp.. Appellant
May IZ—Jnne 5, 1909.
Appeal and error: Review: Findings of referee, when disturbed.
Where there is evidence to support the findings of a referee, con-
firmed by the trial court, they will not be set aside on appeal
unless the clear preponderance of the evidence is against them.
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50 SUPREME COURT OF WISCONSIK [June
Witt V. Merz, 140 Wis. 29.
Appeai. from a judgment of the circuit court for Milwau-
kee county: W, J. Turner, Circuit Judge. Affirmed.
The cause was submitted for the appellant on the brief of
Edgar L. Wood and Christian Doerfler, and for the respond-
ent on that of Charles J. Weaver.
Barnes, J. This action is brought by a subcontractor to
foreclose a claim for a mechanic's lien. The case was re-
ferred, and the findings of fact and conclusions of law made
and found by the referee were confirmed by the court. This
appeal is taken to review the correctness of two of the find-
ings of fact.
The referee found that the last work performed by the
plaintiff upon the building which he constructed was done
on November 13, 1905. The defendant Komorowski, the
owner of the building, offered evidence to show that the last
date upon which work was performed was November 4, 1905.
The notice provided for by sec. 3315, Stats. (1898), was
served on January 9, 1906. It is manifest that if the last
work was performed as early as November 4th the plaintiff
had lost his right to a lien by reason of the fact that more
than sixty days had elapsed after the work was done and be-
fore the required notice was served upon the owner. The
testimony seems to preponderate in favor of the contention
of the appellant upon the question. There is, however, con-
siderable evidence in the record to support the finding of the
referee, and we do not think the testimony so clearly pre-
ponderates against his finding as to warrant this court in
setting it aside. The referee had the advantage of seeing the
witnesses, and should be in a better position to pass upon their
credibility than this court is.
Certain payments were made by the principal contractor
to the plaintiff while the latter was engaged in building the
house of the defendant Komorowski, and it is urged that it
was error not to apply such payments, or at least a portion
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:3] JANUARY TERM, 1909. 31
Marien v. Evangelical Creed Congregation, 140 Wis. 31.
of them, on the indebtedness due from the principal con-
tractor to the subcontractor on account of the Komorowski
house. The evidence to show that these payments were made
on account of other jobs which the. plaintiff was performing
for the principal contractor is sufficient to sustain the finding
of the referee.
By the Court. — Judgment affirmed.
Mambw and others, Respondents, vs. Evangelical Cbeeb
CoNOKEGATioN OF MILWAUKEE and othcrs, Appellants,
i^ay 12— June 5. 1909.
•<1) Supreme court: Restraining acts of party pending appeal,
(2) Religiotis societies: Diversion of property to other uses:
Rights of members: Enforcement,
1. The supreme court will not by order restrain an appellant from
doing certain acts pending the appeal when such acts are as
completely prohibited by the judgment appealed from as they
would be by such an erder and the restraining effect of the
judgment has not in any way been restricted or modified.
2. Where property has been acquired, whether by gift or purchase,
for the maintenance and support of the faith of a recognized
denomination or church, every member of the association ac-
quiring it may resist its diversion to other antagonistic uses,
whether secular or religrious, and the courts will protect and
enforce the trust to apply it to the uses for which acquired and
not to inconsistent uses.
Appeal from a judgment of the circuit court for Milwau-
kee county : E. B. Belden, Judge. Affirmed.
The facts are stated in the opinion.
On January 29, 1909, there was a motion by the respond-
ents for an order restraining and enjoining defendants from
disposing of or interfering with the custody of a certain fund
T)eloiiging to defendant congregation, and from mortgaging
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32 SUPREME COURT OF WISCONSIN. [Junb
Marien v. Evangelical Creed Congregation, 140 Wia. 31. •
or in any way disposing of any of its property until the de-
termination of the appeal.
F. X. Boden, for the motion.
H. F. Cechems, contra^
The following opinion was filed January 30, 1909:
Pes Cubiam. The respondents' motion for an order re-
straining the appellants from doing certain specific acts
must be denied, because there is no showing in the records
and aflSdavits, taken together, of any necessity therefor. The
judgment restrains the appellants in very broad and general
terms from any misappropriation of any property of the^
corporation while their official position gives them the op-
portunity to control it There is nothing in the record to-
indicate that the restraining effect of that judgment has been
restricted or modified in any way pending the appeal, nor
does any reason appear why any misappropriation or misuse
of such property would not constitute a contempt punishable
at once as such. The acts alleged by affidavits to be threat-
ened, if they constitute unlawful diversion or misappropria-
tion of any assets belonging to the corporation, are therefore
as completely prohibited by the judgment itself as they would
be by any order which we might make.
The cause was argued on May 12, 1909.
For the appellants there was a brief by Kanneberg £
Cochems, and oral argument by A, Kanneberg.
For the respondents there was a brief by Boden & Beuscher,
and oral argument by F. X. Boden.
The following opinion was filed June 3, 1909 :
WiNSLOw, C. J. This is an action in equity, brought by
certain members of a church congregation against the church
corporation, its pastor and trustees, to prevent the changing
of the creed of the organization and the perversion of the
corporate property by using it for the spreading of religious
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3] JANUAKY TERM, 1909. 33
Marien v. Evangelical Creed Congregation, 140 Wis. 31.
doctrines and tenets hostile to those to which the property
was dedicated by the founders of the church. The complaint
was before this court upon demurrer in Marien v. Evangel-
ical C. Cong. 132 Wis. 650, 113 N. W. 66, where it was su£^
tained. It does not seem necessary here to restate its alle-
gations. Reference may be made to that case for further in-
formation as to the claims of the complaint. The defendants
answered to the merits, and a trial has been had resulting in
findings and judgment for the plaintiffs, and the defendants
appeal.
The findings were to the effect that the church was organ-
ized in September, 1897, as a German Evangelical church or
congregation, and formally joined the Wisconsin District of
the German Evangelical Synod of North America in June,
1899; that difficulties concerning church discipline arose be-
tween the officers of the said Wisconsin District and Rev.
Franz Kupfer, pastor of the church, in June, 1904, which re-
sulted in Mr, Kupfer's joining the Evangelical Lutheran
Synod of Wisconsin; that thereafter said Kupfer began using
the catechism, ritual, forms, and ceremonies of the Evangel-
ical Lutheran Synod and adheres to that faith ; that there are
serious and fimdamental differences between the faith of the
German Evangelical Synod and the faith of the Evangelical
Lutheran Synod; that the pastor and officers of the church
have repudiated the first-named faith and have attempted to
adopt the last-named faith and thus divert the property of
the congregation to uses different from and hostile to those of
the German Evangelical Synod; that the plaintiffs, who desire
to retain the original faith, are entitled to an injunction pre-
venting any such change of faith and preventing the perver-
sion of the church property to the spreading of other doctrines
than those to which it was dedicated, and also preventing Mr.
Kupfer from preaching the doctrines of the Lutheran Synod
in said church, or any doctrines at variance with the doctrines
of the Evangelical Synod, or acting as pastor until he again
Vol. 140 — 3
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34: SUPREME COURT OF WISCONSIN. [June
Marien v. Evangelical Creed Congregation, 140 Wis. 31.
becomes a member in good standing of the German Evangel-
ical Synod. The judgment followed the findings.
The trial of the case was very long, and the evidence, even
when printed, covers more than 500 pages. Nearly every
finding of fact which is of any importance in the case is at-
tacked by the appellants, who have furnished us a brief of
more than 100 pages. Many pages might be written in dis-
cussing the facts and the sufficiency of the evidence to support
the findings of the trial judge, but it is not perceived how
such a course would add anything useful to the vast volume
of case law which is now being sent forth annually to burden
the shelves of a long-suffering profession. Nor do we feel
that we have any special qualifications which would enable us
to discuss illuminatingly the fine-drawn doctrinal distinctions
which separate the two faiths.
There were two fundamental and controlling questions
here: Firsts was the church at its foundation devoted by its
founders to the dissemination of the doctrines of one certain
faith or sect ? and second, are the pastor and the trustees en-
deavoring to use the church property for the support of an-
other and different faith ? The trial judge resolved both of
these questions in the affirmative, and from an examination of
the case we are convinced that the testimony amply sustains
the findings. The legal result from these facts is not in
doubt. As said in the opinion upon the demurrer in the pres-
ent case (132 Wis. 650, 652, 113 N. W. 66, 67) :
"When property has been acquired, whether by gift or pur-
chase, for the maintenance and support of the faith of any
recognized denomination or church, every member of the as-
sociation acquiring it, corporate or unincorporated, has a right
to resist its diversion to other antagonistic uses, whether secu-
lar or reli.^ious, and therefore those who hold the title or con-
trol, whether a corporation or the officers of an association,
hold it charged with a trust to apply it to the uses for which
acquired and not to inconsistent ones. Such trusts the courts
will protect and enforce."
By the Court — Judgment affirmed.
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3] JANUAEY TERM, 1909. 35
Milwaukee v. McGregor, 140 Wis. 35.
CiTT OF Mn-WATJKEB, Appellant, vs. McGeegob and others,
Kespondents.
May IB-^une S, 1909.
Statutes: ProhiMtions: Operation on the $tate: Title to Btate prop-
erty: Erection of buildings hy state hoards: Municipal regula-
tions: Building permits.
1. Statutes in general terms do not affect the state if they tend in
any way to restrict or diminish its rights or interests.
2. General prohibitions in general laws, or in a city ordinance made
pursuant to general charter authority, apply to all private par-
ties but are not rules of conduct for the state.
3. The state may hare the benefit of general laws but is not ad-
versely affected by any unless it is so expressly provided.
4. A state board empowered to take and hold the title to property
for state purposes does not own such property in any proprie-
tary sense, — it is state property, to all intents and purposes, the
same as in case of title thereto being formally vested in the
state.
5. In case of the construction of a building by a state board for
state purposes under state authority the matter is wholly of
state concern and not under any general state or municipal
regulation.
[Syllabus by Mabshaix, J.]
Appxal from a judgment of the circuit court for Milwau-
kee county: J. C. LuDWia, Circuit Judge. Affirmed.
Equitable action by the plaintiff, upon complaint of its
building inspector, against the members of the Board of Nor-
mal School Regents of the State of Wisconsin, their contract-
ors and architect, to prevent continuation of the erection of
a normal school building in the city of Milwaukee, which had
been partially constructed by them, upon the ground that a
building permit had not been obtained from complainant pur-
suant to the ordinances of said city, without which such erec-
tion was claimed to be unlawfuL A temporary injimction
was duly obtained. On motion it was dissolved, the action
dismissed, and judgment rendered accordingly, upon the
ground that it conclusively appeared from the complaint and
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36 SUPREME COURT OF WISCONSIN. [June
Milwaukee v. McGregor, 140 Wis. 35.
other papers in the ease that the structure which defendants
were erecting was for the state of Wisconsin under express
legislative authority, and that the ordinances of the city of
Milwrntkee had no application to the case.
Ch. 175, Laws of 1905, and ch. 505, Laws of 1907, em-
powered tlie Board of Normal School Regents to erect a nor-
mal school building in the city of Milwaukee according to
plans adopted by such board and approved by the governor.
It appeared that the building in question, at the time of the
conmiencement of this action, was, as claimed, in process of
being erected under such authority and that all of the condi-
tions precedent to such erection, prescribed by such authority^
had been fully complied with.
For, the appellant there was a brief by John T. Kelly, city
attorney, and Walter H. Bender, assistant, and oral argument
by Mr. Kelly.
For the respondents there was a brief by the Attorney Gen-
eral and A, C. Titus, assistant attorney general, and Theodore
Kronshage, Jr., of counsel, and oral argument by Mr. Titus
and Mr. Kronshage.
Marshall, J. The only question requiring solution upon
the appeal is this : Do the provisions of a city charter, and or-
dinances duly adopted pursuant thereto, regulating the con-
struction of buildings in such city, apply to a public school
building proposed to be erected or in process of erection for
the state by the Board of Normal School Regents, under spe-
cial legislative authority to erect the same according to plans
adopted by it and approved by tlie governor? If not, the
judgment appealed from is right
Counsel for appellant present the case as if the Board of
Normal School Regents is to be treated the same as an indi-
vidual, acting for himself or for a private corporation, which
is manifestly wrong. The building in question is for the
public use as state property. The situation is the same as if
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3] JANUAHY TEEM, 1909. 37
Milwaukee v. McGregor, 140 Wis. 35.
the structure was to be used for the care of the insane or for
any other of the many state purposes which might be named.
The fact that the board is made a state agency to take and
hold title to property for state purposes does not cut any figure
in the matter. The building is not designed to be, in any
proper sense, the property of the board, except as representing
the state.
So the question comes down to whether the ordinary charter
and ordinance regulations of a city requiring submission to
local supervision, as regards the manner of constructing, al-
tering, and repairing buildings, have any application to state
buildings. That must be answered in the negative. It is
plainly so ruled by the familiar principle that statutes, in gen-
eral terms, do not apply to acts of the state. Moreover, ex-
press authority to a state agency to do a particular thing in a
particular way supersedes any local or general regulation con-
flicting therewith. Scmdberg v. Slate, 113 Wis. 678, 89
N. W. 504; Dollar Sav. Bank v. U. S. 86 U. S. 227, 239;
U. S. V. Verdier, 164 U. S. 213, 219, 17 Sup. Ct 42 ; DisL of
Columbia V. Johnson, 165 U. S. 330, 17 Sup. Ct 362.
The infirmity of appellant's position has been, from the
first, in supposing that the state, in respect to constructing a
building in the city of Milwaukee, has no more free hand than
a private person or corporation, while the fact is that the
people of the state, in their sovereign capacity, except as re-
strained by some constitutional limitation, and there is none
in this case, is as exempt from mere general or local laws as
the king was of old in the exercise of his sovereign preroga-
tives as "universal trustee" for his people. So it has been
said, "The most general words that can be devised (for ex-
ample, any person or persons, bodies politic or corporate) af-
fect not*' the sovereign "in the least, if they may tend to re-
strain or diminish any of his riglits and interests." So gen-
eral prohibitions, either express or implied, apply to all pri-
vate parties, but "are not rules for the conduct of the state."
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38 SUPREME COURT OF WISCONSIN. [June
State exrel. Nowotny v. Milwaukee, 140 Wis. 38.
Dollar Sav. Bank v, U. S., supra. That has been applied in
many ways. For examples : The state may sue as freely as
an individual, but cannot be sued except by its consent. It
may have the benefit of a general cost statute, but it is not
liable for costs without express written law to that effect. It
may plead the statutes of limitations the same as an individ-
ual, or recover interest as use or damages, but is not subordi-
nate in adversary proceedings to the law on either subject,
imless expressly named therein showing unmistakable legis-
lative intent to that effect
Applying the foregoing, it is plain, that the assumption by
the building inspector of the city of MUwavkee of authority
over the state agent in the execution of the statutory command
to build the structure in question according to plans approved
by the governor, was an unwarranted interference — a pure,
but not intentional, of course, usurpation. The state was not
only not expressly included in the charter power of regulation,,
but the general law of the state passed subsequently to the en-
actment of the charter quite plainly commanded the Board
of Regents to erect the building without regard to the judg-
ment of any one outside of its own members, except as to ap*
proval of the plans by the governor.
By the Court — The judgment is affirmed.
State ex eel. Nowotnt, Respondent, vs. City of Mil-
waukee and another, Appellants.
May 12— June 5, 1909.
Health: Health officers: Necessary powers: Municipal corporations:
Police power: Delegation to health officer: Licensing sales of
milk: Revocation of license,
1. Healtb officers who are expected to accomplish results must nec-
essarily possess large powers and be endowed with the right
to take summary action, which at times trenches closely upon
despotic rule.
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3] JANUAKY TERM, 1900. 39
state ex rel. Nowotny v. Milwaukee, 140 Wis. 38.
2. Executive boards and officers who can deal at once with emer-
gencies under general principles laid down by the lawmaking
body must exist if the public health is to be preserved.
3. Under charter authority to tax, regulate, and restrain vendors
of milk and to regulate and restrain the sale of milk, a com-
mon council has power to pass an ordinance vesting the power
of issuing and revoking licenses in the city health officers, with
the right to exercise the power of revocation summarily and
even without notice. Language in State ex rel. Sepic v. Mil-
waukee, 129 Wis. 562, that the words "regulate" and "restrain"
do not in any sense mean "revoke/* considered and overruled.
Appeal from a judgment of the circuit court for Milwau-
kee ooimty: J. C. Ludwig, Circuit Judge. Reversed.
For the appellants there was a brief by John T. Kelly, city
attorney, and Clinion 0. Price, assistant city attorney, aud
oral argument by Mr, Price.
Carl Rimge, for the respondent.
WiNSLOW, C. J. The health commissioner of MilwavJ^ee
granted the relator a license to peddle milk in said city for
one year, the license being by its terms "subject to revocation'^
according to the provisions of the city ordinances. The li-
cense having been in form revoked by the health commissioner
because relator had been convicted of selling impure milk, the
relator brought an action of certiorari in the circuit court and
the action of the commissioner was reversed, whereupon the
city and the health commissioner appealed, to this court
The question is whether the revocation was lawful. In ad-
dition to broad general police powers, the common council of
the city of Milwaukee had power under the city charter "to
regulate and restrain the sale of . . . milk," also to "tax,
license, regulate, and restrain . . . vendors of milk; to fix
and regulate the amount of license under this subdivision,"
eta Subds. 9 and 40, sec. 3, ch. 4, Charter of Milwaukee,
being ch. 184, Laws of 1874, as amended. By ch. 13 of the
diarter the duties of the commissioner of health are defined
and made very broad and sweeping. He is given poAver to
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40 SUPREME COURT OF WISCONSIN. [June
State ex rel. Nowotny y. Milwaukee, 140 Wis. 38.
summarily abate nuisances of all kinds, destroy diseased or
infected food, clothing, and other like articles, establish tem-
porary hospitals in case* of epidemics, and, in fine, to exercise
very broad and autocratic powers in all matters relating to the
conservatioi; of the public health, and sec. 16 of the chapter
further provides that the council may "further define" his
duties and pass such ordinances in aid of his duties as may
tend to promote and secure the general health of the inhabit-
ants of the city.
A health officer who is expected to accomplish any results
must necessarily possess large powers and be endowed with
the right to take summary action, which at times must trench
closely upon despotic rule. The public health cannot wait
upon the slow processes of a legislative body or the leisurely
deliberation of a court. Executive boards or officers who can
deal at once with the emergency under general principles laid
down by the lawmaking body must exist if the public health
is to be preserved in great cities. Lowe v. Conroy, 120 Wis.
151, 97 N. W. 942. It is well said in People ex rel. Lieber-
man v. Yandecarr, 175 K T. 440, 67 K E. 913 :
"The vesting of powers more or less arbitrary in various of-
ficials and boards is necessary if the work of prevention and
regulation is to ward off fevers, pestilence, and the many other
ills that constantly menace great centers of population."
There is nothing of greater importance relating to the food
supply of a great city than that the milk sold should be pure
and wholesome, and the common council of Milwaukee, real-
izing this fact, and realizing also that it was imperative
that action should be quick and decisive if it is to be efficient,
passed ordinances requiring under penalties that all milk
sold must be unadulterated, must meet certain standards,
and be obtained from healthy cows fed upon wholesome feed,
and further requiring that every milk vendor must obtain a
license from the health commissioner, "which license may at
any time be revoked by the commissioner of health for viola-
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3] JAI^UARY TERM, 1909, 41
State ex rel. Nowotny v. Milwaukee, 140 Wis. 3d.
tion of the provisions hereof, or for any good or sufficient
cause." We are convinced that the council had power to pass
the ordinance and vest the power of issuing and revoking li-
censes in the health commissioner by virtue of the power to
"tax, regulate, and restrain" the "vendors of milk," and to
"p^ulate and restrain the sale of milk," given to it by the
city charter.
The requiring of licenses and the reserving of the power to
revoke such licenses, in case of misc<mduct or violation of law,
is well recognized as one of the most effective means of regu-
lating and restraining a business that has yet been discovered,
but the power of revocation would amount to little if it could
not be vested in an executive officer or board with power to
act quickly. The sale of infected milk for a single hour
might produce an epidemic of typhoid fever which would
sweep hundreds to the grave. The importance of reserving
in some executive official the power to revoke can hardly be
overestimated. Prosecutions to recover fines and penalties
may drag their weary lengths along for weeks and months and
even then prove ineffective ; but the revocation of the license
remedies the evil and avoids the danger of the spreading of
disease at once. It is regulation in the most effective sense.
We have no hesitation in holding that when the city was given
the power to license, restrain, and regulate the sale of milk it
also took power to revoke licenses, and that it might vest such
power in the health commissioner with the right to exercise
the same summarily and even without notice. McQuillan,
Mun. Ord. § 420, and cases cited; Child v. Bemus, 17 R. I.
230, 21 Atl. 539, 12 L. R. A. 57.
It is only fair to say that this court seems in a measure to
blame for the erroneous ruling made by the trial court. In
the case of State ex rel, Sepic v. Milwaukee, 129 Wis. 562,
109 N. W. 421, it was said that the words " ^regulate' and
'restrain' do not in any sense mean revoke." That case in-
volved the power of the council to delegate to a court the
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42 SUPREME COURT OF WISCONSIN. [June
Ferguson v. Bauernfeind, 140 Wis. 42.
power to revoke a liquor license. The general statutes of
the state having provided for the revocation of all liquor li-
censes in any city by the council alone, it was necessarily held
that an ordinance which attempted to vest the power in a
court was void because contrary to the general state law. It
was entirely unnecessary to support the decision in that case
by holding that the power to regulate and restrain does not
include the power to revoke a license. We now deem the re-
mark to have been ill advised and distinctly erroneous, and
overrule it. The case of Memaugh v. Orlando, 41 Fla. 433,
27 South. 34, which was cited in the 8epic Case as authority
for the proposition, simply holds that the power to "regulate
and restrain" saloons and beer halls does not include the
power to prohibit the sale of liquors entirely in the munici-
pality. This may be at once admitted without at all militat-
ing against the proposition that the power to "license, regu-
late, and restrain'* does include the power to revoke an in-
dividual license for misconduct of the holder. Such an act
does not prohibit the business, but r^ulates it in the truest
sense by keeping it in the hands of law-abiding licensees.
By the Court. — Judgment reversed, and action remanded
with directions to quash the writ of certiorari.
Febguson, Trustee, Respondent, vb. Bauebnfbind, Appel-
lant.
Hay 19— June 5. 1909.
Bankruptcy: Preferences: Trust funds: Appeal: Findings: Evidence:
Debtor and creditor: Trustee's title to bankrupt's property.
1. Payments discharging a trust fund in the hands of one subse-
quently adjudicated a bankrupt cannot be recovered as prefer-
ences.
2. In an action by a trustee in bankruptcy to recover alleged pref-
erential payments, a finding that the relation of debtor and
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3] JANUARY TERM, 1909. 4a
Ferguson v. Bauernfeind, 140 Wis. 42.
creditor existed between the defendant and the bankrupt is not
sustained where the evidence clearly shows a trust relation by
which the bankrupt took, received, and held defendant's money
for the purpose of loaning it, even though he may have mingled
it with his own money.
3. Under the federal bankruptcy act the trustee is vested with no
better right or title to the bankrupt's property than belonged
to the bankrupt at the time of the vesting of the trustee's title.
Afpeai. from a judgment of the circuit court for Milwau-
kee county : J. C. Ludwig, Circuit Judge. Reversed.
This action was brought by the plaintiff as trustee of the
C. W. Milbrath Company, a corporation, against the defend-
ant, Jacob Bauernfeind, to recover the sum of $521.25 al-
leged to be due and owing upon an open and running account
between the C. W. Milbrath Company, a corporation, bank-
rupt, and the defendant. The complaint alleges, in sub-
stance, that the Milbrath Company, a corporation, was ad-
judged a bankrupt on the 31st day of August, 1905, and on
the 4th day of October, 1905, the plaintiff was elected trustee ;
that on the I7th day of May, 1905, the said C. W. Milbrath
Company, being insolvent and unable to pay its debts, never-
theless paid to the defendant on account of said indebtedness
the sum of $221.25, and on July 5, 1905, $300; that defend-
ant received and accepted such payment with knowledge that
the C. W. Milbrath Company was insolvent; that the effect
of such payments was to enable the defendant to obtain a
greater percentage of his debt than that obtained by any other
creditor of his class ; that such payments were made with in-
tent to hinder and delay the creditors of said C. W. Milbrath
Company ; that before action due demand was made.
The answer, after admitting the corporate existence of the
C. W. Milbrath Company, that it was adjudged bankrupt,
that plaintiff was elected trustee, and due demand that de-
fendant return the moneys paid to him May 17 and July 5,
1905, denied the other allegations of the complaint The an-
swer further denied that the C. W, Milbrath Company was
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44 SUPREME COURT OF WISCONSIN. [June
Ferguson t. Bauernfeind, 140 Wis. 42.
indebted to the defendant upon running account, but alleged
that said Milbrath Company in or about the month of May,
1905, or some time prior thereto, had received a large sum of
money belonging to defendant and held the same in trust for
him.
The court found that on or about the Slst day of August,
1905, the C. W. Milbrath Company, a corporation, was ad-
judged a bankrupt, an involuntary petition in bankruptcy
having been theretofore duly filed on August 18, 1905 ; that
on October 4, 1905, plaintiff was elected and appointed trus-
tee of said bankrupt corporation, qualified as such trustee,
and ever since has been and now is such trustee ; that all pro-
<5eedings in relation to the petition and adjudication in bank-
ruptcy and the election, appointment, and qualification of
plaintiff as trustee were in accordance with the provision of
an act of Congress entitled "An act to establish a uniform sys-
tem of bankruptcy throughout the United States," and acts
amendatory thereof [Act July 1, 1898, ch.*541, 30 U. S.
Stats, at Large, 544, U. S. Comp. Stats. 1901, p. 3418 ; Act
Feb. 5, 1903, ch. 487, 32 U. S. Stats, at Lai^, 797, U. S.
Comp. Stats. Supp. 1907, p. 1024] ; that ever since his elec-
tion and appointment as trustee said plaintiff has been and
now is a resident of the city of Milwaukee, Wisconsin, and
that for many years prior to the 18th day of August, 1905,
said C. W. Milbrath Company was engaged in the real estate
and loan business, with its principal oflSces and place of busi-
ness in the city of Milwaukee, Wisconsin; that on the 17th
day of May, 1905, the said Milbrath Company was, and for
some time prior thereto had been, indebted to the defendant
upon an open and running account between said bankrupt
and said defendant in the sum of $521.25 ; that on and be-
tween the 17th day of May, 1905, and the 18th day of Au-
gust, 1005, said Milbrath Company was insolvent and unable
to pay its debts ; that on the 17th day of May, 1905, said Mil-
brath Company, being insolvent and being indebted to said
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3] JANUAKY TEEM, 1909. 45
Ferguson t. Bauemfeind, 140 Wis. 42.
defendant, and said defendant having theretofore demanded
the payment of such indebtedness, paid te said defendant on
account of said indebtedness $221.25, and thereafter and on
the 5th day of July, 1905, paid on account of such indebted-
ness the sum of $300 ; that such payments were made to the
agents of defendant, who received such payments for and on
behalf of said defendant; that at the time of each of said
payments said Jacoh Bauemfeind and his said agents had
good reason to believe that said Milbrath Company was in-
solvent and unable to pay its debts, that it was intended by
each of said payments to give defendant a preference, and
that the effect of said payments would be to enable said de-
fendant to obtain a greater percentage of his debts than any
other creditor of the same class with him ; that on or before
August 1, 1907, plaintiff made a demand upon said defend-
ant that he pay to said plaintiff as such trustee the money so
received by him, and that said defendant refused so to do.
And the court concluded thereon that the said payments
and each of them made by the said C. W. Milbrath Company
to said defendant are voidable under and by virtue of the pro-
visions of said bankruptcy act, and that said plaintiff is en-
titled to judgmait against said defendant for said sum of
$521.25.
Judgment was entered for $521.25, with interest from Au-
gust 1, 1907, together with costs and disbursements, from
which this appeal was taken.
For the appellant there was a brief by Eronshage, McGov-
em, Goff, Fritz & Hannan, and oral argument by Guy D.
Goff.
For the respondent there was a brief by McElroy, Fergu-
son £ Lamfrom, and oral argument by W. /. McElroy.
Kebwiw, J. The only question which we find necessary
to consider upon this appeal is the one relating to the so-called
trust relation between the defendant and the C. W. Milbrath
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46 SUPREME COURT OF WISCONSIN. [June
Ferguson v. Bauernfeind, 140 Wis. 42.
Company. The court below found such relation was that of
debtor and creditor and that the money placed in the hands
of the Milbrath Company by defendant was not placed there
in trust. This question involves the sufficiency of the evi-
dence to support the findings of the court below, set out in the
statement of facts, to the effect that the Milbrath Company
was indebted to the defendant upon an open and running ac-
count between the Milbrath Company, bankrupt, and the de-
fendant in the sum of $521.25,
It appears from the evidence without substantial dispute
that for a period of about twenty years before the bankruptcy
of the C. W. Milbrath Company it had been loaning the
money of the defendant; that on or about February 1, 1905,
the defendant called upon Mr. Milbrath of said company and
demanded his money; that Mr. Milbrath then stated that
they were a little short, but would make it up in a short time,
whereupon defendant stated that he could get the money upon
the receipts for the money given by the company showing the
relation in which it was held; that defendant did in fact
transfer the receipts to one Anton Kern and received there-
for an assignment of a $3,600 mortgage, the amount of the
receipts being $3,000, the defendant paying Kem the balance,
$600. Whether the transfer of the receipts to Kem was an
absolute sale or transfer for collection we need not consider,
since, if the money represented by the receipts was a trust
fund and belonged to defendant at the time of the transfer,
the payments made by the Milbrath Company could not be
recovered either from defendant or Kem. It further appears
from the evidence that when money was collected for defend-
ant he was notified and it was paid over to him, or, as in some
instances, he took a receipt for the money represented by the
collection and permitted the company to reloan it for him.
The evidence clearly shows a trust relation between defend-
ant and the C. W. Milbrath Company by which the company
took, received, and held the money of defendant for the pur-
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3] JANUARY TERM, 1909. 47
Ferguson v. Bauernfeind, 140 Wis. 42.
pose of loaning it, and there appears to be practically no evi-
dence of the relation of debtor and creditor. The only evi-
dence from which any inference could be drawn rebutting
the trust relation is that tending to show that the company
may have mixed the funds of defendant with its own. This
alone is clearly insuflScient to support the finding under con-
sideration. Upon the evidence in the case the $521.25 paid
by the bankrupt did not diminish its assets or enrich the de-
fendant at the expense of the general creditors. Under the
bankruptcy act the trustee is vested with no better right or
title to the bankrupt's property than belonged to the bank-
rupt at the time of the vesting of the trustee's title. Love-
land, Bankruptcy (3d ed.) § 173; Van Ingen v. Feldt, 86
Wis. 345, 56 JST. W. 923 ; In re Royea's Estate, 143 Fed. 182 ;
^ Smith V. Au Ores, 150 Fed. 257.
^ We think the clear preponderance of the evidence is against
^ the finding to the effect that the relation of debtor and cred-
t^ • iter existed between defendant and the C. W. Milbrath Com-
1/-N pany, but, on the contrary, the evidence establishes that the
' money paid, to wit, $521.25, was the money of the defend-
ant or his assignee. It matters not which so far as this ap-
peal is concerned. In the view we take of the case it be-
comes unnecessary to treat the other questions argued in the
briefs. It follows that no case was made for the recovery of
the payments alleged to be preferential.
By the Court. — The judgment is reversed, and the cause
remanded for further proceedings according to law.
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48 SUPREME COURT OF WISCONSIN. [Junb
Foreter v. Flack, 140 Wis. 48.
FoBSTEB, Appellant, vs. Fi-ack and wife, Reepondents.
May lth--June S, 1909.
Vendor and purchaser: Rescission by vendor: Pleading: Relevancy^
of allegations: Equity: Cancellation of instruments: Adequate
remedy at law: Rights of action: Executed contracts: Damages,
1. In an action for rescission of an executed purchase of corporate
stock under an a^^eement by which plaintiff had conveyed land
to defendant In payment for said stock and defendant had
agreed that certain dividends would be paid thereon and had
further agreed that at any time, on plaintiffs request, he would
give the latter stock in another corporation in place of that
first mentioned, the complaint alleged that defendant by false
representations had Induced plaintiff to make a partial ex-
change of the stock, and alleged that no dividends had been
paid as agreed. Held, that the allegations as to false repre-
sentations inducing the exchange of stock were irrelevant to
the relief sought
2. Breach of a conation subsequent, of an express warranty, or of
a covenant, in the absence of other grounds of equitable juris-
diction, will not support a complaint in equity for rescission
of a contract, the remedy at law being adequate.
3. A fully executed agreement, whereby plaintiff conveyed land to
defendant in consideration of certain corporate stock, cannot
be rescinded In equity solely for breach of defendant's under-
taking that the stock would pay agreed dividends.
4. In such case a complaint alleging breach of the agreement that
the shares of stock transferred to plaintiff would pay certain
dividends, without allegation as to the value of either the stock
or land, states no legal cause of action, since failure to declare
or pay dividends does not necessarily affect the intrinsic value
of the shares.
Appeal from an order of the circuit court for Milwaukee
county: J. C. Ludwig, Circuit Judge. Affirmed.
The appeal is from an order sustaining a demurrer to the
complaint.
For the appellant there was a brief by McGee dc Jeger, and
oral argument by L. Jeger. They cited, among other cases,
Boothby v. Scales, 27 Wis. 626; Woodle v. Whitney, 23 Wis.
55 ; Warder v. Fisher, 48 Wis. 338, 4 N. W. 470 ; Parry Mfg.
Co. V. Tobin, 106 Wis. 286, 82 K W. 154; Fairfield v. Madi-
son Mfg. Co. 38 Wis. 346; Neave v. Amtz, 56 Wis. 174, 14
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3] JANUAEY TERM, 1909. 49
Forater v. Flack, 140 Wia. 48.
N. W. 41 ; EaKn v. DooliUle. 18 Wis. 196 ; Osthon}, v. Nichol-
son, 13 WalL 654.
For the respondents there was a brief by Blatchley d Oil-
bert$on, and oral argument by A. H. Blatchley. Among
other referencee they cited Merrill v. Nightingale, 39 Wis.
247; 30 Am. & Eng. Ency. of Law (2d ed.) 190; Smith v.
Hughes, 50 Wis. 620, 7 N. W. 653; McLerman v. Prentice,
85 Wis. 427, 65 N. W. 764; CUmentsm v. Sireeter, 59 Wis.
429, 18 N. W. 340; FaOener v. Woodard, 104 Wis. 608, 80
N. W. 940 ; P<dton v. Taylor, 7 How. 132 ; Kelley v. KeUey,
80 Wis. 486, 50 N. W. 334; Deery v. McClintock, 81 Wis.
195.
•
TiMLiiT, J. The complaint avers the purchase by the
plaintiff from the defendant named of 52,000 shares of the
capital stock of a certain corporation in consideration of the
sale and conreyance by plaintiff to defendant of a parcel or
tract of real estate. Accompanying the sale of the corporate
stock it is averred that there were two agreements: (1) That
a dividend would be declared on this stock and paid within
ninety days, and thereafter weekly dividends would be de-
clared and paid thereon for at least four weeks; (2) that the
defendant would at any time at the request of the plaintiff
exchange the whole or any part of said shares of stock for
shares of the capital stock of another mining corporation at
the rate and in the proportion of 3,000 shares of the latter
for 20,000 shares of the former. This defendant within a
short time thereafter made many false and fraudulent rep-
resentations to the plaintiff, and, relying and acting thereon,
the plaintiff exercised his option to demand the exchange of
stock agreed upon and did exchange 20,000 shares of the
52,000 shares first received for 3,000 shares of the other stock.
This defendant mortgaged the real estate received in exchange
for $5,000 to some person not named. No dividend was de-
clared or paid on the first-mentioned stock within ninety days
Vol. 140—4
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50 SUPREME COURT OF WISCONSIN". [June
Forster v. Flack, 140 Wis. 48.
from the date of purchase, nor were any weekly dividends de-
clared or paid on said stock at any time thereafter, whereupon
the plaintiff tendered to this defendant 32,000 shares of the
52,000 shares first purchased and 3,000 shares of the ex-
changed stock and demanded of this defendant that he re-
convey to the plaintiff the real property mentioned free and
clear of all incumbrances, or that he reconvey the said prop-
erty and pay the plaintiff $5,000, being the amount of the
mortgage placed on the property by the defendant. Plaintiff
also demanded of this defendant's wife that she release her
dower, but both defendants refused to comply. Therefore the
plaintiff asks that the defendants be required to reconvey to
him the real estate in the complaint described and that he
have and recover $5,000 to compensate him for the mortgage
placed Qn the property by defendant, and that he have costs
and general relief.
The false and fraudulent representations by which the
plaintiff was induced to exchange the shares of stock are
wholly irrelevant to the relief sought to be obtained. The
fact that the exchange was made of one kind of mining com-
pany's stock for another in pursuance of an option so to do is
quite irrelevant to the relief sought. The only ground for the
rescission prayed is therefore that no dividend was declared
or paid on the stock first received. It does not appear whether
the transaction, aside from the conveyance of the land, was
or was not evidenced by writing. The agreement concerning
the payment of a dividend is pleaded in this form :
'That said stock was sold by the defendant J. W. Flack
and purchased by the plaintiff upon the condition subsequent
and the expressed warranty that a dividend would be declared
on said stock and paid within ninety days from said 20th day
of February, 1907, and that weekly dividends would be de-
clared and paid upon said stock for at least four weeks there-
after."
There is nothing else in the pleading to inform us of the
terms of the agreement in this particular. The pleader des-
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3] JANUARY TERM, 1909. 61
Foreter v. Flack, 140 Wis. 48.
ignates this agreement by the inconsistent names of "condi-
tion subsequent" and "express warranty." It is manifestly
neither, but is a covenant or promise. It is elementary law
that breach of a condition subsequent, breach of an express
warranty, or breach of a covenant, in the absence of other
grounds of equitable jurisdiction, will^ot avail to support a
complaint in equity for rescission of a contract. Davison v.
Davison, 71 N. H. 180, 51 Atl. 905 ; Baley v. Umatilla Co.
15 Oreg. 172, 13 Pac. 890; Love v. Teter, 24 W. Va. 741.
In the absence of fraud, mistake, trust, cloud on title, multi-
plicity of suits, necessity for cancellation, or some other inde-
pendent ground of equitable jurisdiction, a court of equity
will not interfere to rescind a contract on the sole ground that
the defendant has failed to perform his part of the contract
or has broken its warranties or conditions. In such case the
remedy at law is adequate. Douglas Co. v. Walhridge, 38
Wis. 179; Farrar v. Bridges, 3 Humph. 566; Piedmont L.
I. Co. V. Piedmont F. & M. Co. 96 Ala. 389, 11 South. 332;
Birmingham W. & E. Co. v. Elyton L. Co. 93 Ala. 549, 9
South. 235 ; Harrington v. Butherford, 38 Fla. 321, 21 South.
283 ; Moore v. Cross, 87 Tex. 557, 29 S. W. 1051.
The complaint, purporting to state a cause of action for
equitable rescission, is fatally defective in that regard. Linn
V. Gunn, 56 Mich. 447, 23 N. W. 84. In addition to this
the contract was fully executed. McLenrum v. Prentice, 85
Wis. 427, 55 K W. 764. The complaint affirmatively shows
that the plaintiff has an adequate remedy at law to recover
his damages, if any there be. No legal cause of action can
be spelled out of the complaint, because there is nothing to
show the value of the stock received or the value of the land
given in exchange. The failure to declare or pay dividends
does not necessarily affect the intrinsic value of the shares.
The demurrer was properly sustained.
By the Court. — ^The order sustaining the demurrer is af-
firmed.
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52 SUPEEME COURX OF WISCONSIN. [Jtob
Glenesky t. Kimberly <& Clark Co. 140 Wis. 52.
Glenesky, Eespondent, vs. Kimbekly & Claek Company,
Appellant.
May IS— June S, 1909,
Ifaster and servant: Duties of master: Safe place to work: Negli-
gence: Personal injuries: Unguarded machinery: Duty to inr
struct servant
1. The rule requiring the master to furnish his servant with a rea-
sonably safe working place calls only for a working place free
from all dangers which a person in the circumstances of the
master, in the exercise of ordinary care, ought to know of, and
which, under the circumstances, the servant, in the exercise
of ordinary care, is not legally chargeable with knowledge of.
2. A master is not required to instruct a servant as to the existence
of danger, unless it is reasonably to be apprehended that the
circumstances requisite to set that danger in motion may prob-
ably occur.
Z. Failure of the master to instruct a servant as to matters which
the servant must have known in consequence of his employ-
ment does not constitute actionable negligence.
Appeal from a judgment of the circuit court for Winne-
bago county: Geo. W. Buknell, Circuit Judge. Reversed.
This is an action brought to recover damages for personal
injury. The plaintiff when injured was employed in remov-
ing pulp from the wooden roll forming a part of one of the
wet machines used in the defendant's pulp mill at Niagara.
Such wet machine consists in part of two rolls, one being made
of iron and the other of wood. The iron roll is set in a frame
and is about fifteen inches in diameter. The bottom of the
roll is about twenty inches above the floor of the machine room
and parallel therewith. The wooden roll rests directly on
the iron roll and is twenty-one and one-fourth inch^ in di-
ameter. When the machine is in operation the bottom or
iron roll revolves toward the operator, carrying an endless
felt, which passes through a vat or receptacle containing water
and groimd wood pulp. A certain amount of pulp is re-
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3] JANUARY TERM, 1909. 53
Glenesky v. Kimberly & Clark Co. 140 Wis. 52.
moved from the vat by adhering to the felt. As the felt con-
taining the pulp comes in contact with the wooden roll the
pulp is transferred from the felt to sucTi roll. The wooden
roll is turned by means of contact with the felt revolving on
the lower roll. By reason of the weight of the wooden roll a
portion of the water is squeezed out of the pulp as it becomes
attached thereto, but the pulp is sixty per cent, water after
being wound on the roll and has very little adhesive power or
cohesive strength. The wooden roll, being revolved by the
iron roll, turns in the opposite direction, or away from the op-
erator of the machine, and moves slowly, making fifteen or
twenty revolutions a minute. After about forty revolutions
a layer of pulp is formed around the wooden roll of conven-
ient thickness, which is removed by inserting a sharp pointed
wooden stick in a groove near one end of the roll and pushing
it along the roll horizontally until the cylindrical sheet of pulp
is severed. A part of the time the severed end wiU drop
down of its own weight on a table in front of the machine,
and a portion of the time it is necessary to tak6 hold of it witli
the fingers in order to remove it. Whether it will fall of its
own weight, or some degree of force must be used to remove
it, depends to some extent upon the position of the rent with
reference to the top of the roll. If near the top, the sheet is
not apt to drop of its own weight, although a sliglit amount
of force will suffice to loosen it from the roll. The roll itself
is about eighty-four inches in length, and the width of a sheet
of pulp formed thereon is about sixty-three inches. The
operator stands near to the right end of the roll and about
twelve or fourteen inches therefrom, and there is no table be-
tween him and the roll, but there is one immediately to his
left The plaintiff had been working for about four months,
on and off, at removing pulp from the roll of one of the wet
machines of the defendant company. His work of this char-
acter would be about the equivalent of two months' steady
work. He was twenty years of age and uneducated. In
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64 SUPREME COURT OF WISCONSIN. [June
Glenesky v. Kimberly & Clark Co. 140 Wis. 52.
doing his work he stood upon a platform three feet square and
nine inches from the floor. From the top of this platform to
the top of the wooden roll was forty-seven inches. The plaint-
iff was injured by reason of his hand coming in contact with
and being drawn in between the two rolls heretofore described.
The plaintiff's hand necessarily passed over the top of the
wooden roll and followed it aroimd to the point of contact be-
tween the two rolls, such point of contact being on the side
of the rolls opposite from where the plaintiff worked. The
distance from the top of the wooden roll to the point of con-
tact, measured along the surface of the roll, was about thirty-
three inches. It seems to be conceded that the plaintiff, while
standing upon the platform, could not reach around the roll
so as to bring his fingers in contact with the lower roll, and
that such contact could only occur when the body was raised
from the platform.
The plaintiff testified that when he tore the pulp with hia
stick he took the stick in his left hand and took hold of the
pulp with his right hand, and that the pulp did not come off,
and that it caught his hand and drew it into the rollers on the
opposite side from where he stood. He further testified that
the pulp stuck to the roll. The witness was not conversant
with the English language, and it is fair to assume that he
intended to say that the friction produced by his hand coming
in contact with the pulp drew his hand between the rolls.
Manifestly the pulp did not and could not otherwise draw his
hand, because there was nothing to prevent his letting go of
the sheet of pulp if he was unable to detach it from the roll,
and at best it is not claimed that such removal would require
any considerable force or effort. A witness sworn for defend-
ant saw the accident, and testified that plaintiff had placed
some sheets of pulp upon the platform on which he was stand-
ing; that after making the rent in the sheet he grabbed for it
to detach it and missed it, and then made another grab and
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3] JANUAKY TERM, 1909. 55
Glenesky v. Kimberly & Clark Co. 140 Wis. 52.
slipped and fell on the roll, and was carried over by it so that
his hand got between the rolls.
The foregoing states in substance all the material testimony
as to how the accident happened. It appeared from the testi-
mony that operators occasionally dropped the sticks used in
skinning the rolls and that such sticks were carried over and
injured the felts. To prevent occurrences of this kind a board
was placed in a position parallel with the upper roll, a space
being left between the edge of the board and the roll of suffi-
cient width so that the board would not interfere with the
formation of a layer of pulp on the roll, but not wide enough
to admit of the skinning stick passing between the roll and
the board. This board was placed along the side of the roll
opposite from where the operator worked, and a short dis-
tance beyond the apex of the roll. The evidence was undis-
puted that this board or guard was not put in place for the
purpose of affording any protection to operators, and because
of its proximity to the operator it is manifest that, if the fin-
gers of the operator rested on the roll and followed it any
considerable distance beyond the top, they were liable to be
pinched between the roll and the board. It is likewise ap-
parent that if this board had been in place it would have pre-
vented the particular accident that befell the plaintiff. For
some reason the board or guard in Question had been removed
about two days before the plaintiff was injured and had not
been replaced. The jury found that the defendant was neg-
ligent in not maintaining a guard so as to prevent the plaint-
iff's hand being crushed between the rolls and also in failing
to warn the plaintiff of the danger incident to his employ-
ment The defendant moved for a nonsuit, and for a directed
verdict, and to change the answers returned by the jury to cer-
tain questions in the special verdict and for judgment on the
verdict as amended. These various motions were denied, and
from a judgment rendered on the verdict defendant appeals
to this court.
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66 SUPKEME COURT OF WISCONSIN. [June
Glenesky v. Kimberly & Clark Co. 140 Wis. 62.
For the appellant there were briefs by Doe & BalUiom, and
oral argument \>j J. B, Doe.
For the respondent there was a brief by Wignum, Martin
A Jfarfm/ and oral argument by P. H. Martin.
Basnes, J. A full statement of the undisputed facts in
tkis case has been made, and the conclusion reached by the
court obviates any discussion of the evidence. If the master
was negligent in furnishing an.unsafe machine it was because
of failure to so guard it as to prevent the happening of the
accident that occurred. No other defect in the appliance fur-
nished is complained of. Notwithstanding the finding of
the jury, we think the undisputed testimony shows that the
machine was a reasonably safe one, and that the defendant
was not negligent in failing to guard it in such a manner as
to prevent the accident. The roll moved slowly, making but
fifteen or twenty revolutions a minute. It revolved away
from the operator. It was forty-seven inches from the top
of the platform on which he stood to the top of the roll, and
when at work he usually stood twelve or fourteen inches from
the roll. The machine itself was fifty-six inches in height.
The point of contact between the rolls was about thirty-five
inches from the floor. There was not only this barrier fifty-
six inches high in front of the operator, but, in order to get
caught, his hand must, necessarily have followed the roll
around to the opposite side from where he was working, fur-
ther than he could reach. Counsel on both sides concede that
the plaintiff could not have reached around the upper roll to
the point of contact with the lower one while standing cm the
platform. It required little force to remove the pulp from
the roll, and the space above it was open and unobstructed.
It is apparent that the accident could only have happened by
the operator's body coming in contact with the roll, or by his
holding onto the same with his hand so that he was lifted off
his feet. If he fell against the roll, no explanation is offered
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3] JANUAKY TERM, 1909. 57
Glenesky v. Kimberly & Clark Co. 140 Wis. 52.
as to why he did not push himself off insteaxi of clinging to it
It seems to us that a master must well-nigh have the gift of
prescience to apprehend that there was any likelihood of an
accident happening to an operator by being caught between
these rolls, and that it would be holding him to an unusual
and extraordinary degree of care to say that he was negligent
in not having the foresight to conceive that such an accident
might happen.
"The rule requiring the master to furnish his servant with
a reasonably safe working place calls only for a working place
free from all dangers which a person in the circumstances
of the master, in the exercise of ordinary care, ought to know
of, and which, under the circumstances, the servant, in the
exercise of ordinary care, is not legally chargeable with
knowledge of." Hencke v. Ellis, 110 Wis. 632, 539, 86 N.
W. 171 ; Mueller v. N. W. L Co, 125 Wis. 326, 330, 104
^. W. 67; Atkinson v. Goodrich T. Co. 60 Wis. 141, 18 K
W. 764; McOowan v. C. & N. W. R. Co. 91 Wis. 147, 64
N. W. 891.
Under any reasonable application of the foregoing rule the
defendant was not negligent in failing to maintain a guard
on the machinery in question, and it is evident that the work
of the plaintiff would be attended with apparently greater
danger when the guard was on than when it was off.
It is equally clear that the defendant was not guilty of neg-
ligence in failing to warn the plaintiff of the hazard that pro-
duced the injury.
"Granted that the danger existed, yet it does not follow
there was a duty to instruct in regard to it, unless it was rea-
sonably to be apprehended that the circumstances requisite
to set that danger in motion might probably occur. . . ."
DMke V. Ill S. Co. 100 Wis. 431, 434, 76 N. W. 363 ; Flem-
ing v. NoHhernT. P. Mill, 135 Wis. 157, 114 K W. 841.
It seems clear to us that the accident was such that the de-
fendant had no reasonable ground to apprehend that it might
occur, 33esides, the plaintiff operated this machine for a pe-
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58 SUPREME COURT OF WISCONSIN. [June
Barber A. P. Co. v. Oshkosh, 140 Wis. 58.
riod of two months, and in the exercise of ordinary care he
should have known that if he fell against the roll and held it
suflSciently tight to lift his body from the ground it would
carry him OTer. He must also have known that if his fingers
came in contact with the rolls they would be bruised. These
were the only facts in reference to which the master could
have instructed him.
The trial court should have directed a verdict in the de-
fendant's favor. Failing to do so, the defendant's motion to
change the answers returned by the jury to the second, third,
fourth, and fifth questions in the special verdict should have
been granted, and judgment entered in defendant's favor on
the verdict as corrected.
By the Court. — The judgment of the circuit court is re-
versed, and the cause is remanded with directions to enter
judgment in favor of the defendant dismissing the plaintiff's
complaint.
Keewin, J., took no part
Babbeb Asphalt Paving Company, Respondent, vs. City
OP Oshkosh, Appellant.
May IS— June S, 1909.
Statittee: Construction: *'May:" Municipal corporations: Streets: Im-
provements,
"L The ordinary and natural meaning of the word •'may/* when
used in a statute, is permissive and discretionary, not manda-
tory, although it is construed as mandatory when such cod-
btniction is necessary to give effect to the clear purpose and
Intent of the statute.
2. The word •'may" in sec. 925—223. Stats. (1898). providing that
whenever the city council shall order the paving or repaying
of a street in which gas or water mains, or sewers, or either
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3] JA^^UAEY TERM, 1909. 59
Barber A. P. Co. v. Oshkosh, 140 Wia 68,
of them, have previously been laid, they may require servlce^
pipes and house drains to be first laid to the curb line, and
that no street shall be paved or repaved by order of the council
unless the water and gas mains and service pipes and neces-
sary sewers and their connections shall, as required hy the
council, be first laid and constructed, — is used in its ordinary
and natural meaning and is not mandatory. Gleason v. Wau-
kesha Co. 103 Wis. 225, in so far as it indicates that a city
cannot pave without first requiring such connections to be made,
overruled.
Appfjll from a judgment of the circuit court for Wimie-
bago county: Geo. W. Bubnell, Circuit Judge. Affirmed,
Fred Beglinger, city attorney, and F, C. Stewoffi, of coun-
sel, for the appellant They contended, inter alia, that the
word "ma/' in a statute will be construed to mean "shall''
whenever the ri^ts of the public or third persons depend
upon the exercise, of the power or the performance of a. duty
to which it refers, and such is its meaning in all cases where
the public interests and rights are concerned, or a public duty
is imposed upon the public officers, and the public or third
•persons have a claim de jure that the power shall be exercised.
Sutherland, Stat Constr. sec. 462 and p. 599 ; Mason v. Fear-
son, 9 How. 248, 269 ; Supervisors v. U. 8. 4 Wall. 435 ;
Kennedy v. Sacramento, 19 Fed. 580 ; Buffalo P. R. Co. v.
Comm'rs, 10 How. Pr. 237 ; Hall v. Wabash R. Co. 80 Mo.
App. 463 ; Edwards v. Hall, 30 Ark. 31 ; State v. Saline
County Court, 48 Mo. 390 ; Eagadom v. Roaix, 72 N. Y.
' 583 ; Vason v. Augusta, 38 Qa. 542 ; People ex rel. Fiske v.
Brooklyn, 22 Barb. 404; Dooms v. Omaha, 58 Neb. 815;
Follmer v. Nuckolls Co. 6 Neb. 204 ; People ex rel. Putnam
V. Buffalo Co. 4 Neb. 150.
For the respondent there was a brief by Bou/:k & Hilton,
attorneys, and Frank M. Hoyt, of counsel, and oral argument
by Mr. Hoyt.
WiNSi-ow, C. J. The plaintiff, having paved certain
streets in the city of Oshkosh under written contracts with the
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60 SUPKEME COURT OF WISC0NSI:N'. [June
Barber A. P. Co. y. Oshkosh, 140 Wis. 58.
city, sued to recover that part of the contract price which was
to be paid by the city, and the defense made was that the con-
tracts were void because the city had not required water and
gas service pipes and sewer connections to be laid before the
paving was done. Judgment having been rendered for the
plaintiff the city appeals.
The city had adopted subch. XX of ch. 40a, Stats. (1898),
relating to the construction of sewers, and the question is
whether the word "may,^* as used in section 025 — 223 of that
chapter, is permissive or mandatory. The section provides
in effect that whenever the city council shall order the paving
or repaving of a street in which gas or water mains, or sew-
ers, or either of them, have previously been laid, "they may
also by resolution" require service pipes and house drains to
be first laid to the curb line at the expense of the abutting
property, at such intervals as they shall direct. The section
then provides for the giving of notice to property owners to
lay such service pipes or connections, and for the laying of
the same by the board of public works in case of default, and
concludes with the proviso "that no street shall be paved or
repaved by order of the coimcil unless the water and gas mains
and service pipes and necessary sewers and their connections
shall, as required by the council, be first laid and constructed
in that portion of such street so to be paved or repaved."
The ordinary and natural meaning of the word "may,"
when used in a statute, is permissive and discretionary, not
mandatory, although it is construed as mandatory when such
construction is necessary to give effect to the clear purpose
and intent of the statute. The trial judge thought that it
should be construed in its ordinary and natural meaning here,
and we entirely agree with his view. To construe it as man-
datory would mean that whenever a street containing water
or gas mains or sewers was ordered to be repaved, the coim-
cil must order new service pipes and connections to be laid,
notwithstanding the fact that all necessary pipes and connec-
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3] JANUAKY TEEM, 1909. 61
Barber A. P. Co. v.. Osbkosh, 140 Wis. 58.
tions were already in place, operating perfectly, and good for
many years of service. Such was the case in the present ac-
tion, as admitted by the pleadings with reference to two of
the streets paved. Other instances may easily be called to
mind where, although water or gas mains or sewers already
exist in a street, it would b© utterly unnecessary and oppres-
sive to require service pipes or connections to bo made, be-
cause the adjoining property, by reason of its proximity to an-
other street, is already fully and more economically served.
No reason occurs to us which calls for a mandatory construc-
tion of the word. The final proviso of the section evidently
means simply that, when the council has required pipes and
connections to be laid, the paving shall not be done imtil the
pipes and connections so ordered have bifeen first laid.
The appellant confidently relies on Oleason v. Waukesha
Co. 103 Wis. 225, 79 N. W. 249, as sustaining the conten-
tion that the council must make the order in every case. That
action was brought by a taxpayer to set aside a special assess-
ment for making gas and water connections because the coun-
cil had not adopted the proper resolution nor given the proper
notice requiring the connections to be made and because such
assessments constituted a taking of private property for pri-
vate use. It was determined by this court that, so far as the
resolution and notice were concerned, the statute had been
essentially complied with, so there was in fact no question be-
fore the court as to the effect of proceeding without requiring
the connections to be first made. It is true that in discussing
the question it was said, in passing, that the city was pro-
hibited from paving the, street without first requiring connec-
lions to he made with the mains and pipes run therefrom to
the curb lines. As far as this indicates that the city cannot
pave without first requiring connections to be made, it must
be considered as overruled. The city having ordered the con-
nections made in that case, the question as to the effect of a
failure to make such order was not necessary to be considered.
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62 SUPREME COURT OF WISCOXSIX. [June
Luckow V. Boettger, 140 Wis. 62.
The idea in mind was that, after the connections had been or-
dered in, the city had no right to pave nntil the connections
had in fact been put in; and this was as far as the court in-
tended to go.
By the Court. — Judgment afllrmed.
Luckow, Respondent, vs. Boettgeb and another, imp., Ap-
pellants.
May IS— June S, 1909,
Appeal from justices* courts: Judgment vnthout new triaX: Appeal
to supreme court: Review: Findings of fact: Presumptions: New
trial after reversal,
1. The circuit court when required to give judgment pursuant to
sec 3769, Stats. (1898), should act solely upon the evidence
upon which the court below acted, not considering any ruled
out by the latter as improper or any conjecture as to evi-
dence which might have been given by answering questions not
permitted, because thought to be objectionable.
2. On appeal to this court from the judgment of the circuit court
given under sec. 3769, Stats. (1898), the rule obtains that the
determination by such court as to facts should not be disturbed
unless contrary to the clear preponderance of the evidence.
3. A determination by the circuit court of Issues of fact by appli-
cation of wrong rules of law is not supported on appeal by the
presumption In favor of its correctness, requiring a clear pre-
ponderance of evidence to the contrary to warrant disturbing it.
4. Where, upon appeal to this court, findings of a trial court are
condemned because made by application of wrong rules of law
and the right of the matter does not clearly appear from the
evidence, the case upon reversal will be remanded to the trial
jurisdiction to find the facts, proceeding In the light of correct
legal principles.
[Syllabus by Mabsuall, J.]
Appeal from a judgment of the circuit court for Mani-
towoc county : Michael Kirwan, Circuit Judge. Reversed,
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3] JANUAEY TERM, 1909. 63
Lackow T. Boettger, 140 Wis. 62.
The action was tried in the municipal court of Manitowoc
county. The practice as to appeals from such court to the
circuit court is the same as in case of appeals from justices'
courts. The judgment in the municipal court was in de-
fendants' favor. They duly appealed to the circuit court
without making the affidavit required by sec. 3768, Stats.
(1898), requisite to obtain a trial de novo. The circuit court,
nevertheless, considered evidence returned, which the mu-
nicipal judge rejected as improper in deciding the case, and
also inferred what witnesses would have testified to in answer
to questions supposed to have been improperly ruled out,
reaching the conclusion that the municipal judge's findings in
some respects were wrong and reversed the judgment with
costs as hereafter indicated.
Plaintiff's claim was this: October 27, 1901, plaintiff
loaned defendants, as copartners, $500, to be paid with in-
terest on demand, taking their promissory note therefor. De-
cember 27, 1901, there was paid thereon $100. The note was
surrendered and it was agreed that the balance, $400, should
be treated as a loan to defendants at five per cent, interest,
and their note therefor was taken. December 27, 1903, the
note was renewed by one made by defendant H. J, Boettger.
Xo payment has been made upon that note, except interest
prior to December, 1905. Plaintiff is entitled to judgment
for the balance of the original loan with interest as specified
in the last note subsequent to December 27, 1905.
The defendant H. J. Boettger, answering separately, and
the others jointly, claimed this : Prior to the giving of the note
of $400 the partnership was dissolved, H. J. Boettger assum-
ing and agreeing to pay all the firm's indebtedness, of which
plaintiff was fully advised, and plaintiff accepted the succes-
sor as his debtor in place of the firm, surrendering the $500
note, and taking the note of such successor for $400 and $20
cash as consideration therefor. Subsequently such proceed-
ings were duly had in bankruptcy that such successor was
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64 STJPEEME COURT OF WISCONSIN. [June
Luckow V. Boettger, 140 Wis. 62.
fully discharged from his indebtedness, including that on the
note.
The trial court found as claimed by defendants, except:
held, that the new note for $400 was not taken in payment
of the firm's indebtedness upon the old note, under an agree-
ment to accept the maker of the former as the sole debtor;
that the new note was taken as a renewal of the old indebted-
ness and as security therefor ; that no consideration passed at
the time of the transaction of taking the new note for a sub-
stitution of the individual liability of the maker thereof for
that of the firm ; that on the trial the new note was duly sur-
rendered into court to be delivered to the maker; that such
maker was, as claimed, duly discharged of his indebtedness in
bankruptcy; and that the judgment of the municipal court
dismissing the cause as to him should be affirmed, but that
the judgment as to the other defendants should be reversed
and judgment be rendered against them for the unpaid in-
debtedness, being with interest $435.44 with costs.
Judgment was rendered accordingly, from which this ap-
peal was taken.
For the appellants there was a brief by Healy & Joyce, at-
torneys, and C. H. Sedgwick, of counsel, and oral argument
by Mr. Sedgwick.
For the respondent there was a brief by F. W. Dicke, at-
torney, and Nash & Nash, of counsel, and oral argument by
Mr. Dicke and Mr. E. O. Nash.
Mabshall, J. The appeal from the municipal court in
question should have been disposed of in the circuit court as
provided in sec. 3769, Stats. (1898), that is to say, there be-
ing no affidavit entitling appellant to a trial de novo, judg-
ment should have been given "according to the weight of the
evidence and justice of the case without regard to technical
errors" not affecting "the merits and without regard to the
findings of the" municipal judge.
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3] JANUAKY TERM, 1909. 65
Luckow V. Boettger, 140 Wis. 62.
Formerly the practice was merely to affirm or reverse the
judgment of the trial court. That was changed by the revi-
sion of 1878 so as to permit of a reversal or affirmance, in
whole or in part, either as to damages or costs, or both, but
the findings of the trial court were still required to be given
sufficient weight to preclude their disturbance unless imsup-
ported by the evidence. That is, such findings were to be
regarded on appeal as having substantially the force of find-
ings in case of an appeal to this court from the circuit court
upon the question of whether they are warranted by the evi-
dence. That was changed by ch. 216, Laws of 1891, so as to
require the evidence returned to the circuit court to be viewed,
substantially the same as if taken originally in such court,
the findings of the trial court to be regarded as having very
little dignity in the matter (Silvemail v. RiLst, 88 Wis. 458,
60 N. W. 787), yet not to be so wholly disregarded but that
the advantages of the trial court over the reviewing court, by
reason of opportunity to see and hear the witnesses, might
be taken account of (Smith v. Norton, 114 Wis. 458, 90
K W. 449). The court there said:
The language of the statute, "without r^ard to the find-
ing of the justice," does not mean that "the evidence returned
must be construed most strongly in favor of the losing party.
The question presented is purely one of fact. The justice
who saw and heard the witnesses found for the defendant.
He undoubtedly did so because he thought such finding was
in accordance with the weight of the evidence. The evidence
returned seems to justify such finding. The county court af-
firmed that judgment. Notwithstanding the language of the
statute, we must concur in such finding."
The two amendments to the original statute leave the prac-
tice the same as formerly, to the extent that the decision of
the circuit court is required to be made upon the evidence re-
turned by the trial court as having been considered there.
The former cannot legitimately consider evidence ruled out
by the latter even if it is embodied in the return, nor consider
Vol. 140 — 5
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66 SUPREME COURT OF WISCONSIN. [June
Luckow V. Boettger, 140 Wis. 62.
the effect of answers which it may be conjectured witnesses
would have given to questions ruled out as improper. To
do so would be clearly extrajudicial because the statute, quite
clearly, though not expressly, prohibits it.
The result of the foregoing is that the circuit court, in not
taking into consideration at all the advantages which the mu-
nicipal court had of seeing the witnesses and hearing them
testify, and in not only considering evidence which the mu-
nicipal judge ruled out but evidence not given at all ; evidence
it was supposed would, or might, have been given had ques-
tions ruled out as improper been permitted to be answered,
committed errors of law, rendering the conclusions reached
not supported in this court by the ordinary presumption of
correctness. That presumption in presence of the conclu-
sion having been reached by the application of wrong rules
of law does not obtain in case of an appeal from a judgment
of the circuit court on appeal from an inferior court without
a new trial. The rule is the same in such circumstances as
on appeal from a judgment of the circuit court in a case
tried without a jury. Dormer v. Genz, 129 Wis. 245, 107
N. W. 1039, 109 N. W. 71 ; Brunkow v. Waters, 131 Wis.
31, 110 N. W. 802. In any case, findings of a trial court
on matters of fact made by application to the evidence
of wrong rules of law which did, or probably may have,
eflSciently influenced the result, are not supported in the re-
viewing court by any presumption of their correctness, but
they must be tested solely by the evidence. Unless it ap-
pears that there is a clear preponderance of such evidence in
support of the judgment as it was proper for the trial court
to have considered, it must be reversed and the cause re-
manded to the proper jurisdiction to make the proper find-
ings and judgment, subject to review. Brown v, Griswold,
109 Wis. 275, 85 N. W. 363 ; HawTces v. Slight, 110 Wis.
125, 85 N. W. 721 ; Bostwick v. Mut, L. Ins. Co. 116 Wis.
392, 89 N. W. 538, 92 K W. 246.
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3] JANUAKY TERM, 1909. 67
Luckow V. Boettger, 140 Wis. 62.
In Kirm v. First Nat. Bank, 118 Wis. 537, 548, 95 N. W.
969, it was said: "The trial court is the appropriate place
for the determination of such questions.''
And in Priewe v. Fitzsimons & C. Co, 117 Wis. 497, 511,
94N.W. 317, 322:
"The evidence is certainly not suflSciently conclusive for
respondents to enable us to come to a satisfactory conclusion
. . . without doing the work here that rightfully should be
done by a trial judge and generally is left, upon a reversal,
for him to do, where there is considerable doubt as to the
truth of the matter.''
In Bostwich v. Mut. L. Ins. Co. 116 Wis. 392, 443, 89
K W. 638, 92 K W. 266, the case turned below on a con-
clusion of fact reached imder a wrong conception of the law,
necessitating a reversal, and it was uncertain which of two
reasonable inferences was right in the light of right rules of
law, and it was said :
"In that situation this court does not direct the judgment
to be rendered if the unsolved issues of fact might go either
way and it is doubtful which is proper, so that in attempting
to decide them originally here injustice might be done."
It may be that it would be better practice in such a case
as this to determine here the right of the matter from the
evidence and end the litigation. True, it seems like imposing
an unnecessary burden upon a respondent having just such a
judgment as he is entitled to, to mulct him with costs because
of an error for which he is not to blame and compel him again
to seek redress in the trial court with the danger of a second
appeal to this court before the controversy can be finally ter-
minated. It may be that, especially in a case of this sort,
where the trial court cannot any more than this court *have
the benefit of seeing the witnesses and hearing them testify, —
where the opportunity for determining the real right of the
matter is the same here as in the court below with the ad-
vantages in favor of this jurisdiction of several minds to deal
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68 SUPREME COURT OF WISCONSIN. [June
Luckow V. Boettger, 140 Wis. 62.
with the subject instead of one, — the cause should be finally
terminated here in such a situation as we have before us, even
if the rights of the parties upon the evidence be involved in
considerable doubt. But the fact remains that this jurisdic-
tion, in such matters, is for the exercise of purely appellate
power, not that of rendering judgments as in the exercise of
original jurisdiction, and the practice has been quite rigidly
in harmony therewith. So much so, the court is of the opin-
ion that it is not best, at this time, to depart from it even if
that might legitimately be done.
It is the opinion here that, had the trial court not com-
mitted the errors of law referred to, a different conclusion
might have been reached as to whether the new note was taken
in payment of the old one; that, upon the evidence, the de-
cision might go either one way or the other ; and that which is
the proper way is involved in serious doubt Therefore, the
judgment must be reversed.
We will not review the evidence or make any intimation
as to the weight which should be given to any portion of it.
That course seems best in order to leave the trial jurisdic-
tion opportunity to discharge its duty imtrammeled by any
suggestion which might interfere with its judgment within
its peculiar field.
By the Court. — Judgment reversed, and cause remanded
for further proceedings according to law.
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3] JAXUARY TERM, 1909. 69
Kunz V. Boll, 140 Wis. 69.
KuNz and another, Appellants, vs. Boll and others, Re-
spondents.
Same, Respondents, vs. Pitz and others, imp., Appellants.
May IS— June 5, 1909.
Principal and surety: Building contracts: Discharge of surety hy ad-
vance payments.
Where the date of the actual completion of a building was Sep-
tember 20, and, as early as June 9, payments had been made
to the contractor aggregating upwards of $2,000 in excess of
the amounts stipulated to be paid prior to the final completion
of the building, the amount of the advanced payments and the
length of time in which they antedated the time when they
should have been paid are such material variances from the
contract as absolutely discharge the contractor's sureties.
Timlin and Kerwin, JJ., dissent.
Appeals from a judgment of the circuit court for Mani-
towoc county: Michael Kirwan, Circuit Judge. Affirmed
on plaintiffs' appeal; reversed on that of defendants.
The plaintiffs had a contract with the nominal defendant,
Boll, for the construction by the latter of a certain building
and payment by the plaintiffs for the completed building of
$18,360, "all payments to be on certificates of said architect
as the work progresses, to wit : $4,000 on completion of foun-
dation; $3,000 on completion of first story; $3,000 on com-
pletion of second story ; $3,000 on completion of third story ;
$3,000 on completion of building; and balance sixty days
thereafter, reserving fifteen per cent, of each estimate until
final certificate is issued." The defendants other than BoU
were a copartnership engaged in business as a bonding com-
pany, and in that capacity, for a compensation of $50 paid
by Boll, gave a bond in the penal sum of $5,000 to the plaint-
iffs conditioned that Boll "shall well and truly furnish all the
material and labor to be used and employed in the erection
of a certain brewery building" according to the aforesaid con-
tract. Boll completed the building September 20, 1905,
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70 SUPKEME COURT OF WISCONSIN. [June
Kunz V. Boll, 140 Wis. 69.
prior to which time there had been paid him a total of
$15,100, in various sums, much of it before any certificates
were given by the architect, but whether, as to some early
payments, before the work had progressed to the prescribed
stage, does not appear. On that day the contractor and the
plaintiffs, together with the architect, had an accounting, as-
certained that extra work had been done to the amount of
$979.27, and there was then issued a certificate for the bal-
ance of $4,239.27. Lienable claims for labor and materials
existed, which plaintiffs were obliged to pay, to an amoimt in
excess of this balance. This action was brought to recover
an alleged excess of such claims of about $2,700. The court
made certain deductions of about $2,000 and rendered judg-
ment against the sureties for $768 and interest and costs.
From the whole of this judgment the defendant sureties ap-
peal, and from the disallowance of the $2,010.58 the plaint-
iffs appeal.
For the plaintiffs there were briefs by Nash & Nash, and
oral argument by L. J. Nash.
For the defendants there tvere briefs by Kougen & Brady,
and oral argument by A. L. Hougen.
Dodge, J. Among the defenses interposed was that the
owner and the principal contractor had modified the contract
to the prejudice and consequent discharge of the sureties by
paying large amounts of money thereon before the same was
due according to its terms. This was supported by a show-
ing that in the earlier stages of the work large amounts had
been paid without any formal certificate of the architect, but
the evidence is not so clear that they were paid before the
money was earned according to the provisions of the contract,
and there might well be doubt whether they were effective to
release the sureties imder the rule on the subject declared in
Madison v. Am. 8. E. Co. 118 Wis. 480, 95 N. W. 1097. It
was made to appear conclusively, however, and indeed de-
clared by the findings, that the building was not completed un-
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3] JANUAKY TERM, 1909. 71
Kunz V. Boll, 140 Wis. 69.
til September 20th, and that as early as June 9th there had
been paid to the contractor the sum of $15,100, while by the
express terms of the contract only $13,000 was to be paid to
him prior to the final completion of the contract. The ef-
ficacy of substantial advance payments upon contracts to dis-
charge sureties is too well settled by the authorities in this
state to warrant discussion. The prejudicial effect thereof
to the surety has been found both in the removal of the in-
centive to the contractor to diligently press his work and from
the diminution of the fund which the contract contemplates
to remain in the owner's hands and which may serve as a
means of protecting the sureties from liability. Stephens v.
Elver, 101 Wis. 392, 77 N. W. 737; Cowdery v. Hahn, 105
Wis. 455, 81 N. W. 882 ; Lewe v. Reddan, 123 Wis. 90, 93,
100 N. W. 1038. In the present case it cannot be doubted that
both the amount of the advanced payments and length of time
in which they antedated the time when they should have been
paid were material. In that respect they bear no resemblance
whatever to the mere trifling variance from the contract pre-
sented in Stephens v. Elver, supra. For this reason we must
hold that before the completion of the contract the sureties
had been absolutely discharged from their liability, and no
judgment can be had against them, which conclusion renders
it unnecessary for us to consider the various other conten-
tions.
By the Court. — Judgment reversed on defendants' appeal,
and cause remanded with directions to dismiss the complaint ;
plaintiffs to take nothing on their appeal.
TiMUN, J. {dissenting). I think the judgment of the
circuit court should be aflSrmed on both appeals. The con-
tract provided :
"All payments to be on certificates of said architect as the
work progresses, to wit : $4,000 on completion of foundation ;
$3,000 on completion of first story ; $3,000 on completion of
second story ; $3,000 on completion of third story ; $3,000 on
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72 SUPREME COURT OF WISCONSIN. [June
Kunz V. Boll, 140 Wis. 69.
completion of building; and balance sixty days thereafter, re-
serving fifteen per cent, of each estimate until final certificate
is issued. The final payment shall be made within sixty
days after the said above work is completely finished."
The total amount earned under the contract, with author-
ized extras, was $19,339.27. There is an apparent distinc-
tion between certificates issued as the work progresses and the
final certificate. Neither of the five items above provided for
includes the final certificate. Fifteen per cent, of each of the
five items' above is to be reserved until the final certificate is
issued. The word "completion" should be given the same
meaning in each of the five items. It is common learning
that words following a videlicet point out or specify but do
not restrain the generality of the preceding words. They
particularize and point out. Brown v. Berry, 47 111. 175 ;
8 Words k Phrases. The fair inference is that the itemiza-
tion points out a rate of preliminary estimates proportioned
to the progress made, so that up to the time of completion of
the building not more than the sum of such items, viz.,
$16,000, shall be paid on preliminary estimates. I think
this is a fair and reasonable construction, bearing in mind the
subject matter of the contract, how building operations are
usually carried on, and having reference to the language of
the contract. This amount was not exceeded by preliminary
certificates up to the time of completion; hence the sureties
were not on this ground discharged. But the sureties were en-
titled to have applied on claims in favor of third persons and
against the contractor for labor and materials furnished the
whole amount due from plaintiffs to contractors after com-
pletion and on deferred payments, which was $4,239.27.
After the liability of the sureties became fixed, plaintiffs
applied part of this on moneys due them from the contractor,
and they were therefore properly charged and the ^reties
credited with the sums so applied. Another part of this
$4,239.27 was applied properly to the discharge of claims for
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3] JAK^UAKY TERM, 1909. 73
Badger StaU L. Co. v. G. W. Jonea L. Co. 140 Wis. 73.
materials used in the building. The whole liability of the
sureties was $5,000, which, minus $4,239.27, is $760.73,
practically the amount for which judgment was rendered
against the sureties, arrived at by a more roundabout process,
Kerwin, J. I concur in the foregoing dissent of Mr.
Justice Timlin.
Badgek State Lumbeb Compact, Respondent, vs. G. W.
Jones Lumber <yOMPANT, Appellant
May H — June S, 1909.
Executory contracts: Stopping performance: RemedAes: Damages for
breach: Rights of parties, when determined: Entire contracts:
Grounds of rescission: Pleading: Waiver: Delivery /. o. 6. cars:
When title passes,
1. Where specific performaHce of an executorj contract cannot be
enforced, either party may by explicit order stop performance
by the other, subjecting himself thereby only to a liability to
the other party for compensatory damages for such breach.
2. A contract for the sale of lumber to be manufactured, graded,
tallied, hauled, and delivered on board cars at such times as
cars are furnished by the purchaser, title to remain in the
seller until the lumber is shipped and paid for, is executory
so far as it relates to lumber not delivered at the time of a
renunciation of the contract by the purchaser.
3. The rights of the parties under such a contract must be deter-
mined as of the date the purchaser renounces his contract and
refuses to carry it out.
4. A contract requiring a commodity to be shipped in carload lots
as cars are furnished by the purchaser, each car shipped be-
fore a designated date to be paid for in cash tfteen days from
date of shipment, is apportionable and not entire.
5. Under aach a contract the purchaser may receive part of the com-
modity and may breach the contract as to the portion not de-
livered without subjecting himself to liability for the purchase
price thereof, provided the contract has not been performed by
the seller as to the undelivered portion.
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74 SUPREME COURT OF WISCONSIN. [June
Badger State I* Co. v. G. W. Jones L. Co. 140 Wis. 73.
6. Ordinarily, facts which will warrant a rescission must have ex-
isted at the time the contract was made.
7. In an action to recover the contract price of lumber the defend-
ant, having by answer denied plaintilTs right to recover on
Buch cause of action, may, by counterclaim, plead that if it
should be held liable to take and pay for any portion of the
lumber it should be allowed damages by way of recoupment
and setofC because of poor manufacture, without thereby waiv-
ing any rights it might have under an attempted rescission.
8. A contract obligating the seller to deliver a conmiodity f. o. b.
cars is not a sale in pr<n8enti, either when made or when the
commodity is manufactured, since the title does not pass to the
purchaser until the commodity is delivered by loading it on the
cars.
Appeal from a judgment of the circuit court for Pepin
county : E. W. BDelms, Circuit Judge. Reversed.
On April 10, 1907, the plaintiff and defendant entered
into a contract by the terms of which the plaintiff agreed to
sell and the defendant agreed to buy all of plaintiff's stock of
soft elm lumber. The contract recited that a considerable
portion of the lumber was then sawed and in pile in the city
of Durand, and that the remainder of the stock was to be
sawed from logs at the Plummer mill in Durand, and at John
Moy^s mill in the town of Canton, Buffalo county, Wisconsin,
and at Julliot's mill in the town of Waterville, Pepin county,
Wisconsin, and at Gates's mill in the town of Frankfort,
Pepin county, Wisconsin, and that so much of the logs as
were imsawed were to be sawed as soon as possible under the
supervision of the plaintiff. The plaintiff agreed to manu-
facture the portion of the logs not yet sawed into such thick-
nesses as the defendant might direct, and to cause the sawing
to be done in a good and workmanlike manner; also to load
the limiber sold (estimated at 550,000 feet more or less)
into cars at Durand, Wisconsin, at such time as cws were pro-
vided by the defendant, but at the expense of the plaintiff.
The plaintiff agreed to ship the lumber as soon as same was
in shipping condition. The National Hardwood Lumber As-
sociation rules were to govern the inspection and scale, and
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3] JANUAKY TERM, 1909. 7&
Badger State L. Co. v. G. W. Jones L. Co. 140 Wis. 73.
the inspection and scale were required to be made at the
mill and were to be final. It was further provided that both
of the parties should have their inspectors present when the
lumber was being loaded, if they so elected, but, in the event
of the failure of the defendant to furnish an inspector, the
inspection made by the plaintiff should be final. In case
any dispute as to scale or grade arose between the inspectors
for the parties to the contract, which could not be settled by
them, it was agreed that such dispute should be adjusted by
an inspector of the National Hardwood Lumber Association.
It was further agreed that the lumber should be well sawed^
of proper thickness, edged and trimmed, and the logs so sawed
as to produce as much of the upper grades of lumber as pos-
sible. The defendant agreed to ship all of said lumber on or
before January 1, 1908. If any stock remained in the yard
after that time, it was agreed that it should be jointly esti-
mated by the representatives of the parties and be paid for
according to such estimate. For all water elm, red elm, and
gray elm the defendant agreed to pay the plaintiff, f. o. b.
Durand, for No. 3 common and better, $20 per thousand feet,
upon the following terms of payment: "Cash fifteen days
from date of shipment, less two per cent. Sixty days from
date of shipment^ net." It was further agreed between the
parties that title to the lumber should remain in the plaintiff
until same was shipped out or paid for according to the esti-
mate of January 1, 1908.
On November 27, 1907, plaintiff shipped to defendant, at
its request, one carload of lumber. This car was invoiced at
the contract price, and contained upper grades of lumber,
and was paid for at the contract price. On November 29,
1907, the defendant wrote plaintiff as foUows:
"It will be impossible for us to take the soft elm we bar-
gained with you for, as the stock has not been sawed at all
in accordance with our instructions. Our Mr. B. G. Harper,
whom we sent there to take up a trial car of the stock, ex-
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76 SUPREME COURT OE WISCOXSIK [June
Badger State L. Co. v. G. W. Jones L. Co. 140 Wis. 73.
plained the matter fullj to your Mr. Pierce, so you know what
our grounds for complaint are against the lumber. We re-
gret to advise you of this, but if you will look up the corre-
spondence we have had with you in reference to sawing this
stock, you will find that we- gave you explicit and positive in-
structions regarding it, and these instructions have not been
observed. Under these circumstances we feel justified in
turning the stock down."
On the day following the plaintiff acknowledged receipt
of this letter, in which it denied that the lumber was not prop-
erly manufactured, and stated that if the lumber was not
shipped out by the defendant in accordance with the terms of
the contract it would cause the lumber to be estimated, and
commence action to recover the contract price of the same.
On January 14, 1908, the plaintiff again wrote the defend-
ant, calling its attention to the provision in the contract pro-
viding for an estimate of the lumber by joint representatives
of the parties, and notifying the defendant that it was ready
to proceed with such estimate, and further stating that if the
defendant did not appear on or before January 28, 1908, it
would on that date proceed to take the estimate without the
co-operation of the defendant, and bring suit to recover the
contract price. The defendant did not elect to take any part
in making the estimate, and the plaintiff caused an estimate
to be made in accordance with the statement contained in its
letter of January 14th. On Eebruary 29, 1908, the plaint-
iff forwarded to the defendant a bill for the contract price of
the lumber in accordance with the estimate made by it. The
amount of such bill was $11,078.16. The defendant refused
to pay, and this action was brought to recover the contract
price of the lumber and resulted in a verdict and judgment in
favor of the plaintiff for such contract price, from which
judgment this appeal is taken.
For the appellant there was a brief by Nash & Nash, at-
torneys, and C. A, Ingram, of counsel, and oral argument by
L, J. Nash. They contended, inter alia, that contracts like
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3] JANUARY TERM, 1909. 77
Badger State L. Co. v. G. W. Jones L. Co. 140 Wis. 73.
the one in suit providing for the sale and delivery of a large
quantity of lumber or other commodities in carload lots, with
separate payments for the separate shipments, are manifestly
severable; each delivery separates and executes the contract
pro ianto, leaving what is still undelivered subject to any
lawful objections, even though the lots already delivered and
received were subject to the same objections. Such a par-
tial delivery is not an acceptance of any part of the whole
quantity not yet delivered. Ketchum v. Wells, 19 Wis. 25 ;
McDonald v. Gardner, 56 Wis. 35 ; Hoffman v. King, 58 Wis.
314; 8. C. 70 Wis. 372 ; Gill v. Benjamin, 64 Wis. 362 ; Mc-
Millan V. Fox, 90 Wis. 173 ; Murphy v. Sagola L. Co. 125
Wis. 363; In re Kelly, 51 Fed. 194; Hubbard v. George, 49
lU. 275; Cooh v. Brandeis, 3 Mete. (60 Ky.) 555; Hollfield
V. Black, 20 Mo. App. 328 ; American P. P. £ B. Co. v.
Cakes, 64 Mo. App. 235; Farmer v. Gray, 16 Neb. 401, 20
K W. 276; Visscher v. Greenbank A. Co. 11 Hun, 159;
Pacific Coast E. Co. v. Bravinder, 14 Wash. 315, 44 Pac.
544; Conway v. Fitzgerald, 70 Vt. 103, 106, 39 Atl. 635;
Clark V. Wheeling S. Works, 53 Fed. 494; Creswell R. £ C.
Co. V. Martindale, 63 Fed. 84, 86 ; Bennett v. Shaughnessy, 6
Utah, 273, 277, 22 Pac. 158; Eastern F. Co. v. Corbin, 182
Mass. 590. The defendant had the legal right to renounce
and repudiate the contract, so long as it remained executory;
absolutely and without recourse if for good cause, but just as
absolutely without any cause ; in the latter case, however, sub-
ject to defendant's liability to compensate the plaintiff for all
resulting damages. Ward v. American H. F. Co. 119 Wis.
12, 25; Fountain City D. Co. v. Peterson, 126 Wis. 512;
Engeldinger v. Stevens, 132 Wis. 423 ; Collins v. Delaporte,
115 Mass. 159, 162; Oklahoma V. Co. v. Carter, 116 Ga.
140, 94 Am. St. Rep. 112 ; Gibbons v. Beate, 51 Minn. 499,
22 L. R. A. 80. The measure of damages resulting from a
wrongful renimciation of a contract of sale is never the con-
tract price, but the difference between such contract price
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78 SUPREME COURT OE WISCONSIX. [June
Badger State L. Co. v. G. W. Jones L. Co. 140 Wis. 73.
and the market value of the chattels. - The title to the lumber
never passed to the defendant. The plaintiff still owns it.
The contract provided that the title should not pass until the
lumber was "shipped out or paid for according to the estimate
of January 1, 1908." Eliminating the element of a wrong-
ful renunciation or repudiation of an executory contract of
sale, it is still the law that the seller cannot recover the pur-
chase price until after the title has passed." Benj. Sales, sec.
311; 24 Am. & Eng. Ency. of Law (2d ed.) 1118-1120;
Smith V. Barron Co. 44 Wis. 686 ; Ganson v. Madigan, 9 Wis.
146; 8. C. 13 Wis. 67; 8. G. 15 Wis. 144; Pike v. Vaughn,
39 Wis. 499; Hoffman v. King, 58 Wis. 314; 8. G. 70 Wis.
372; Ketchum v. Wells, 19 Wis. 25; Hill v. Ghipman, 59
Wis. 211 ; Manufacturers* Bank v. Rugee, 59 Wis. 221 ; 8tate
ex rel. Vilas v. Wharton, 117 Wis. 558 ; Mason v. Decker, 72
K Y. 595 ; MitcheU v. Le Glair, 165 Mass. 308 ; Brocklen v.
8meallie, 140 N. Y. 70 ; Jenkinson v. Monroe Bros. & Go. 61
Mich. 454, 28 K W. 663.
For the respondent there was a brief by Wickham & Farr,
and oral argument by James Wickham. They contended,
inter alia, that the authorities in this state and elsewhere sus-
tain the proposition that the vendor in an executory contract
of sale of personal property, on refusal of the vendee to ac-
cept the goods, may store the goods and recover the contract
price. Nisbet v. Gill, 38 Wis. 657; Boyington v. Sweeney,
77 Wis. 55, 68 ; Pratt v. 8. Freeman & Sons Mfg. Go. 115
Wis. 648; HaHman F. & G. Go. v. Krieger, 137 Wis. 650,
119 N. W. 347; Dustan v. Mc Andrew, 44 N. Y. 72; Ilay-
den V. Demets, 53 K Y. 426 ; Mason v. Decker, 72 N. Y. 595,
28 Am. Rep. 190; Bagley v. Findlay, 82 111. 524; McGor-
mick H. M. Go. v. Markert, 107 Iowa, 340, 78 N. W. 33 ;
Mitchell V. Le Glair, 165 Mass. 308; Van Brocklen v.
Smeallie, 140 N. Y. 70, 35 K E. 415, 416; Oanson v.
Madigan, 15 Wis, 144. The rescission, if at all, must be
totaL Any act by the purchaser in recognition of the con-
tract precludes his right to rescind. Churchill v. Price, 44
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3] JANUARY TERM, 1909. 79
Badger State L. Co. ▼. G. W. Jones L. Co. 140 Wis. 73.
Wis. 540; Cream City 0. Co. v. Friedlander, 84 Wis. 53, 58,
59 ; Kingman & Co. v. Watson, 97 Wis. 596, 612 ; Zipp Mfg.
Co. V. Pastorino, 120 Wis. 176 ; James Music Co. v. Bridge,
134 Wis. 510. A complaint or counterclaim for damages for
breach of a contract is an aflBrmance of the contract, incon-
sistent with a claim that the contract has been rescinded, and
is a waiver of any right to a rescission. Main v. Procknow,
131 Wis. 279; Pfeiffer v. Marshall, 136 Wis. 51, 116 N. W.
871 ; Maxon v. Gaies, 136 Wis. 270, 116 K W. 758. Where
the buyer accepts property and fails to object in a reasonable
time that it does not comply with the contract, he waives his
right to afterwards object that the property does not comply
with the terms of the contract, and waives his right to re-
cover damages on account of any alleged defects. Northern
S. Co. V. Wangard, 117 Wis. 624, 629; H. McCormick L.
Co. V. Winans, 126 Wis. 649, 654; Ashland L., 8. & C. Co.
V. Shores, 105 Wis. 122, 128; Forster, Waterhury Co. v.
F. MacKinnon Mfg. Co. 130 Wis. 281.
Babnes, J. The rule is well settled that in executory con-
tracts, where specific performance cannot be enforced, either
party has the power to stop the performance on the other side
by .an explicit order to that effect, by subjecting himself to
such damages as will compensate the other party for being
stopped in the performance on his part at that point or stage
in the execution of the contract. In such cases it is held that
an action cannot be maintained to recover the contract price,
but may be maintained to recover damages for the breach of
the contract. Ward v. Am. H. F. Co. 119 Wis. 12, 25, 96
X. W. 388 ; Fountain City D. Co. v. Peterson, 126 Wis. 512,
106 N. W. 17; Merrick v. N. W. Nat. L. Ins. Co. 124 Wis.
221, 226, 102 N. W. 593; Tufts v. Weinfeld, 88 Wis. 647,
60 N. W. 992 ; Woodman v. Blue Grass L. Co. 125 Wis. 489,
494, 103 N. W. 236, 104 N. W. 920 ; Engeldinger v. Stevens,
132 Wis. 423, 424, 112 N. W. 507.
The decisions of this court upon the question under discus-
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80 SUPKEME COURT OF WISCONSIN, [June
Badger State L. Co. v. G. W. Jones L. Co. 140 Wis. 73.
sion are in harmony with the great weight of authority else-
where. Mr. Page states the rule applicable where one party
to a contract, who is not himself in default, has covenants still
to be performed when the breach is committed by the other
party, as follows :
"The adversary party cannot ignore the breach, perform
the covenants of the contract on his part to be performed, and
recover the entire contract price as if no breach had occurred.
This state of facts often exists in breach by renunciation.'^.
3 Page, Contracts, § 1435. See cases cited in notes 2 and 3,
p. 2219.
If the contract was still executory the defendant might
breach it, and would thereby subject itself to the payment of
such damages as would fairly compensate the plaintiff for the
breach, and ordinarily such damages would be the difference
between the contract price of the lumber and its value at the
time of the breach. Gaiison v. Madigan, 13 Wis. 67, 72;
S. C. 15 Wis. 144, 150; Chapman v. Ingram, 30 Wis. 290.
The general rule that a breach of an executory contract
gives a right of action for damages for the breach and not
for recovery of the purchase price is not modified by the case
of Boyington v. Sweeney, 77 Wis. 55, 45 N. W. 938. It is
there held that where the vendor tenders a delivery in ac-
cordance with the terms of the contract, and an actual deliv-
ery is prevented by the refusal of the vendee to accept and
receive the article at the time and place agreed upon, the
vendor may sue for and recover the purchase price. In this
case the plaintiff failed to furnish cars within a reasonable
time, and before they were furnished a portion of the logs sold
were burned, and it was held that the offer to deliver was
tantamount to an actual delivery, and that the vendor had in
fact performed his part of the contract. The case of Pratt
V. S. Freeman & Sons Mfg. Co. 115 Wis. 648, 92 N» W. 368,
holds that where a vendor, in an executory contract for the
sale of goods to be paid for on delivery, discovers that the
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3] JANUARY TERM, 1909. §1
Badger State L. Co. v. G. W. Jones L. Co. 140 Wis. 73.
vendee has become insolvent, he may store the property for
the buyer and sue for and recover the purchase price. No
other case in this court is called to our attention that has any
tendency to mitigate the rigor with which the general rule
referred to has been enforced.
It is a conceded fact in the case that the def^idant wrote
plaintiff on November 29, 190Y, stating explicitly that it
would be impossible for it to take the stock bargaised for.
Certain reasons were stated in the letter for the dedsiim ar-
rived at, whidi were found by the jury to be groimdless. The
letter was received in due course of mail and was replied to
by the plaintiff upon the day following its date. The impor-
tant questions in the case therefore are: (1) Was the con-
tract executory when defendant's letter was received ? (2) If
it was, did the defendant by its subsequent conduct waive the
renunciation of the contract contained in its letter ? What-
ever difficulties the case may present do not arise out of any
uncertainty as to what the law is on the points involved. A
correct application of the facts to the established rules of law
is all that is necessary in order to determine the rights of the
parties.
When does a contract, executory when made, become exe-
cuted so that the vendor may sue and recover the purchase
price of the article contracted for ? In the early case of Oan-
9on V. Madigan, 13 Wis. 6Y, 72, the court held :
"Where the vendor has actually taken all the steps neces-
sary to vest the title to the goods sold in the vendee, he may
sue for goods sold and delivered, and the rule of damages
would be the contract price ; but where he is ready and will-
ing to perform, and offers to do so, but the vendee refuses,
cvon though the title is not vested in the vendee, the vendor
still has his action on the contract for damages; but the rule
of damages in such case would be the actual injury sustained,
which is ordinarily the difference between the value of the
property at the time of the refusal and the price agreed on."
Vou 140—6
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82 SUPREME COURT OF WISCONSIN. [Jtob
Badger State L. Co. ▼. G. W. Jones L. Co. 140 Wia. 73.
The contract in this case was for the sale of a reaper, and
the vendee was informed that he could have his pick of a
large number of reapers shipped to the agent of the vendor
in knocked-down form. The vendee refused to make any se-
lection, and the court held that because of the failure of the
vendor to set up the reaper and make an offer or tender of
it as an entirety he could not recover the purchase price, but
only damages for the breach of the contract. The decision
was re-examined at some length and re-affirmed on a second
appeal 16 Wis. 144, 150. The rule adopted in this case has
not been departed from in any substantial particular, and it
has in effect been followed in a number of cases since decided.
Tufts V. Weinfeld, 88 Wis. 647, 60 N. W. 992; Hoffman v.
King, 68 Wis. 314^ 317, 17 N. W. 136; Ward v. Am. H. F.
Co. 119 Wis. 12, 26, 96 N. W. 388; McMillan v. Fox, 90
Wis. 173, 62 N. W. 1052.
Under the authorities cited, and assuming that the title to
the lumber contracted for did not pass to the vendee in the
contract, we fail to see any logical groimd for saying that such
contract was not an executory one in so far as it related to
lumber not delivered when the letter of renunciation was writ-
ten. A portion of the lumber was sawed and in pile at Du-
rand, Wisconsin. As to such lumber it was necessary to sep-
arate the No. 3 and better lumber from that below the grade
of No. 3 and to ascertain the quantity of the same. Each
party might furnish an inspector, and in case of disagreement
it was provided that an inspector of the National Hardwood
Lumber Association should act as umpire to settle the dispute.
If the vendee failed to select an inspector, then the vendor
might inspect, and such inspection should be final. The
vendor was required to haul the lumber from the pile and de-
liver it on board cars at Durand. A portion of the lumber
was at two or three different country mills several miles dis-
tant from Durand. The contract required such lumber to be
inspected and tallied in the same manner as that located at
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3] JANUARY TERM, 1909. 83
Badger State L. Co. v. G. W. Jones L. Co. 140 Wis. 73.
Durand, and also required the vendor to haul the same to Du-
rand and deliver it on board cars. There was also a small
quantity of lumber not sold under the contract mixed with
that which was, and it necessarily would have to be separated
before the contract was completed by the vendor. The evi-
dence failed to show the expense which the plaintiff would
necessarily incur in completing the contract, but it is appar-
ent that it would be a very material item, and that the con-
tract was not substantially performed by the vendor on No-
vember 29th. That it was ready, able, and willing to per-
form is not the equivalent of performance for the purposes
of this case. Ganson v. Madigan, supra. The defendant
might have ordered all of the lumber during the month of
December, and the plaintiff would have been obliged to grade,
tally, haul, and deliver the lumber on board cars. Prior to
November 29th the defendant was not in default to the ex-
tent that it was not entitled to have the lumber delivered
f. 0. b. cars, and upon that date it renoimced its contract and
refused to carry it out. The rights of the parties must be de-
termined as of that date, and we fail to see how we could
logically hold that at that time the contract was even sub-
stantially performed by the plaintiff.
The contention that the contract was entire, and that the
acceptance of and payment for one carload of the lumber was
an acceptance of the entire stock and a waiver of any right to
resist payment of the purchase price thereof, is not tenable.
The contract required the lumber to be shipped in carload lots,
and provided that each car shipped before January 1st should
be paid for in "cash fifteen days from date of shipment, less
two per cent Sixty days from date of shipment, net*' The
contract was an apportionable one, and the defendant might
receive part of the lumber thereunder and breach the contract
as to the portion which was not delivered without subjecting
itself to liability for the purchase price thereof, provided the
contract had not been performed by the plaintiff as to the un-
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84 SUPKEME COURT OF WISCONSIN. [June
Badger State L. Ck). v. G. W. Jones L. Ck). 140 Wis. 73.
delivered portion of the stock. Ketchum v. Wells, 19 Wis.
25, 33 ; McDonald v. Gardner, 56 Wis. 35, 41, 13 N. W. 689 ;
Clark V. Clifford, 25 Wis. 597; T. B. Scott L. Co. v. Hafner-
Lothman Mfg. Co. 91 Wis. 667, 65 N. W. 513; McMillan v.
Fox, 90 Wis. 173, 176, 62 K W. 1052; La Coursier v. Bus-
sell, 82 Wis. 265, 52 K W. 176; Hildebrand v. Am. F. A.
Co. 109 Wis. 171, 85 N. W. 268 ; Tilton v. J. L. Gates L. Co.
post, p. 197, 121 N. W. 331.
It is argued that the defendant waived any rights it might
have under its attempted rescission of November 29th by
coimterclaiming in its answer for damages for alleged
breaches of the contract on plaintiff's part. The cases of Main
V. Procknow, 131 Wis. 279, 111 IST. W. 508, and Pfeiffer v.
Marshall, 136 Wis. 51, 116 N. W. 871, are cited to the point
that a counterclaim for damages for breach of a contract is an
affirmance of the contract and is inconsistent with and is a
waiver of a plea of rescission. We do not understand that
the defendant has ever asked that the contract be rescinded, or
even claimed that any facts existed which would warrant a
rescission. Contracts are usually rescinded because a party
has been fraudulently induced to enter into the contract obli-
gation. The facts that will ordinarily warrant a rescission
must have existed at the time the contract was made. The
position of the defendant here was that the plaintiff had
breached its contract in material particulars and that for such
reason defendant would not perform. The defendant by its
pleading denied the right of the plaintiff to recover the con-
tract price of the lumber. It then stated that, if it should be
held liable to take and pay for any portion thereof, it should
be allowed $5 per thousand damages by way of recoupment
and setoff because of poor manufacture. We do not think
this answer comes within the principle of thfe cases cited, or
that there was any waiver on defendant's part of its right to
insist that the only recovery that could be had against it was
the amount of damages occasioned by the breach of its con-
tract.
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3] JANUARY TEEM, 1909. 85
Bichards v. Manitowoc & N. T. Co. 140 Wis. 85.
It is urged that the contract constituted a sale of the lum-
ber in prcesenti, either when made or when the lumber was
manufactured, notwithstanding the reservation of title made
by the vendor, until the lumber was paid for. The contract
obligated the vendor to deliver the lumber f. o. b. cars. A
number of such contracts have been before this court, and it
has been held that the title under such a contract does not pass
to the vendee until the article sold is delivered by loading it on
cars. Vogt v. Schieneheck, 122 Wis. 491, 100 N. W. 820 ;
Fromme v. O'Donnell, 124 Wis. 529, 103 N. W. 3 ; Murphy
V. Sagola L. Co. 125 Wis. 363, 103 N. W. 1113 ; Engeldinger
V. Stevens, 132 Wis. 423, 112 N. W. 507; John O'Brien L.
Co, V. Wilkinson, 117 Wis. 468, 94 N. W. 337; State ex rel
Pittsburgh C. Co. v. Patterson, 138 Wis. 475, 120 N. W. 227.
The contrary rule adopted in Boyington v. Sweeney, 77 Wis.
55, 46 N. W. 38, has been overruled. Vogt v. Schieneheck,
supra.
The conclusions reached render it unnecessary to consider
various other matters discussed in the briefs and in the oral
argument.
By the Court. — The judgment of the circuit court is re-
versed, and the cause is remanded for further proceedings ac-
cording to law.
RiCHABDS, Appellant, vs. Manitowoc and Noetheen Tkac-
TioN Company, Respondent
May U-^une S, 1909.
Executory contracts: What constitutes a "breach: Stopping performr
ance: Damages: Appeal: Affirmance,
1. Th« refusal of on« party to perform hii part of aB executory con-
tract uDlest the other party consents to a modification consti-
tutes a total breach of the contract.
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86 SUPEEME COURT OF WISCONSIN. [Juwu
Richards v. Manitowoc & N. T. Co. 140 Wis. 86.
2. If, while a contract to do work and furnish materials is still
executory,. the party for whom it is to be done orders the work
stopped, the remedy of the other party is to recover damages
for such breach. He cannot proceed with performance and
recover the value of the completed job.
3. In the absence of a showing that appellant is entitled to recover
more than the amount for which he had judgment and which
respondent concedes, the judgment should be affirmed.
Appeal from a judgment of the circuit court for Manito-
woc county : Michael Kirwan, Circuit Judge. Affirmed,
This action was brought to recover the sum of $606.12 for
labor performed and materials furnished in August and Sep-
tember, 1902, at the special instance and request of defend-
ant. The complaint alleges, in eflFect, that the plaintiff was
doing business under the name of Richards Iron Works, and
that the defendant was a corporation operating a street inter-
urban railway in the city of Manitowoc ; that during August
and September, 1902, plaintiff performed the labor and fur-
nished the materials above referred to, and that a statement
of the account was furnished on September 11, 1902, and no
payment has been made thereon. The defendant admits its
corporate existence and business, and denies generally the
other allegations of the complaint. The case was referred,
and the referee made and filed his report, in which he found
that plaintiff was entitled to recover $75 and costs. Plaintiff
filed exceptions to the report and findings of the referee and
moved the circuit court to modify the report and for judg-
ment as modified in the sum demanded in the complaint.
The circuit court denied the motion to modify, confirmed the
report of the referee, and ordered judgment for the plaintiff
in the sum of $75 and interest at six per cent, from Novem-
ber 9, 1907, to date of its order, together with costs and dis-
bursements. Judgment was entered accordingly, from which
this appeal was taken.
For the appellant there was a brief by ^4. L. Hougen and
C. H. Sedgwick, and oral argument by Mr. Hougen.
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3] JANUARY TERM, 1909. 87
Kichardi ▼. Manitowoc h N. T. Co. 140 Wis. 85.
For the respondent there was a brief by Nash d Nash, and
oral argument by E. 0. Nash.
E^EBWiN, J. The referee found, among other things, that
the defendant was operating a street railway line along the
highways of the city of Manitowoc and across the Manitowoc
river upon a bridge ; that in July, 1902, the superintendent of
defendant, duly authorized, ordered of plaintiff certain appli-
ances for use on the bridge ; that the plaintiff accepted the or-
der and immediately began work under the contract; that
about the second day after the appliances had been ordered
the general superintendent and superior officer of defendant,
with authority so to do, peremptorily ordered the work
stopped if the job was to cost more than $75, but, notwith-
standing, the plaintiff proceeded with the work and finished
the job at a cost of $606.12 ; that defendant refused to pay
any amoimt in excess of $75; that plaintiff applied to the
common council of the city of Manitowoc and receired per-
mission to remove the appliances from the bridge, but never
did remove them; that the appliances furnished were worth
$606.12. And as conclusions thereon that the appliances
were ordered by authority of defendant; that when ordered
it was believed by the superintendent of defendant that they
would cost not to exceed $75; that within two days after
the order was given the order was canceled and the work or-
dered stopped unless the cost of the job was limited to $75 ;
that the plaintiff elected to proceed with the job and elected
and submitted to the condition and consented to do the job
for $75 ; that the first contract was superseded by the second
implied agreement ; that by electing to proceed with the con-
struction the plaintiff became bound by the limitation and
cannot recover in excess of $75 ; and that plaintiff is entitled
to recover the sum of $75.
The main contention of appellant is that, because a valid
contract was made and no price fixed, he was entitled to com-
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88 SUPREME COUET OF WISCONSIN. [June
Richards v. Manitowoc & N. T. Co. 140 Wia. 86.
plete the job and recover what it was reasonably worth. It
does not appear definitely how much had been done under
the contract when the work was ordered stopped and the con-
tract canceled. Only two days had elapsed from the time of
the giving and acceptance of the order, and a large and sub-
stantial part, perhaps the principal part, of the contract was
then unperformed and the contract executory. There is no
doubt that the refusal of the defendant to perform on its part
unless plaintiff would consent. to a modification was a total
breach of the contract. But notwithstanding the breach the
plaintiff had no right to proceed and perform the contract,
which was executory at the time of breach, and recover the
value of the completed job. His remedy was to recover dam-
ages for the breach and proceed no further with performance
of the contract on his part. Ward v. Am. H. F. Co. 119
Wis. 12, 96 N. W. 388 ; Fountain City D. Co. v. Peterson,
126 Wis. 512, 106 N. W. 17; Engddinger v. Stevens, 132
Wis. 423, 112 N. W. 507.
The theory obviously of the appellant is that the plaintiff,
after the contract was made, had a right to proceed and com-
plete it, notwithstanding the order of defendant to proceed
no further. This is not the law. While the contract re-
mained executory the defendant had a right to stop the per-
formance on the part of plaintiff by subjecting itself to such
damages as would compensate plaintiff for being stopped in
the performance of the contract. Ward v. Am. H. F. Co.,
supra; Hamilton v. McPherson, 28 N. Y. 72 ; Johnson v.
Meeker, 96 N. Y. 93 ; Hinckley v. Pittsburgh B. S. Co. 121
U. S. 264, 7 Sup. Ct. 875 ; Badger State L. Co. v. G. W.
Jones L. Co., ante, p. 73, 121 N. W. 933.
The plaintiff on the trial, however, did not claim damages
on account of breach, but maintained his right to recover on
the original contract for the value of the job completed, and
the main question litigated appears to have been whether the
original contract was modified so as to limit the cost of the
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3] JANUAKY TERM, 1909. 89
State ex rel. Hattabaugh v. Boynton, 140 Wis. 89.
job to $Y5. The plaintiff offered no evidence of the damages
occasioned by the breach. The court below as well as the
referee seems to have awarded judgment for $Y5 on the the-
ory that, when the defendant ordered the work stopped unless
it could be done for $75, and plaintiff proceeded with and
completed the job, plaintiff impliedly agreed to the modifica-
tion. We need not decide this propositi6n. The plaintiff
not having proved the amount of his damages occasioned by
the breach, and it not appearing that he was entitled to re-
cover more than $75, the amount which defendant concedes,
we think the judgment was right and must be aflBrmed.
By the Court. — ^The judgment is aflSrmed.
State ex eel. Hattabattgh, Appellant, vs. Boynton, Re-
spondent.
May H—June S, 1909.
Extradition: Arrest on civil proeeB$,
One who has been brought into this state by extradition proceed-
ings based on a criminal charge is not subject to arrest in con-
tempt proceedings to enforce compliance with a prior civil
judgment against htm, until he has had an opportunity to re-
turn to the state from which he was extradited, even though
he was, when he absconded, a resident of this state and had not
since acquired a residence elsewhere, and the court in which
said judgment was rendered had, before his departure, obtained
jurisdiction both of the subject matter of the action and of his
person.
Appeal from an order of the circuit court for Manitowoc
county: Michael Kirwan, Circuit Judge. Affinned.
The appeal is from an order discharging an attachment
for contempt of court.
For the appellant there was a brief by Nash & Nash, and
oral argument by E. G, Nash. They cited, among other au-
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90 SXJPREME COURT OF WISCONSIN. [June
State ex rel. Hattabaugh v. Boynton, 140 Wis. 89.
thorities, Matthews v. Puffer, 10 Fed. 606 ; Saveland v. Con-
nors, 121 Wis. 28, 98 N. W. 933 ; Bonahan v. Nebraska, 125
U. S. 692, 8 Sup. Ct. 1390; Allen v. Georgia, 166 U. S. 138,
17 Sup. Ct. 525; Wartman v. Wartrnan, Fed. Cas. No.
17,210.
For the respondent there was a brief by /. S. Anderson,
attorney, and A. L. Hougen, of counsel, and oral argument
by Mr. Hougen. They cited, besides other cases, Anderson
V. Bountree, 1 Pin. 115; sees. 2965, 2966, Stats. (1898);
In re Blair, 4 Wis. 522.
Timlin, J. Upon aflSdavit showing that in an equitable
action against a trustee for an accounting judgment was on
July 18, 1907, given and rendered against the defendant,
Prescott Boynton, and in favor of the relator, and that the
defendant, after the cause was tried and while it was pend-
ing under consideration by the circuit court, fled from the
state of Wisconsin, taking with him the trust property for
the purpose of defeating, impairing, and prejudicing the
rights and remedies of the relator, had been thereafter served
with a true copy of said judgment, and had failed to comply
with its commands, a writ of attachment for contempt was
issued returnable before the court on January 12, 1909. At-
tached to this affidavit and made part thereof was a copy of
the judgment, which decreed that the defendant within thirty
days after the service upon him or upon his attorney of writ-
ten notice of the entry of judgment deposit with the clerk of
said circuit court certain bonds of the iTnited States and a
certain amount of money, or in lieu of said bonds the sum
of $10,000 with the money mentioned, and that in case of
his failure to make said deposit the relator might have exe-
cution against the property of the defendant in the sum of
$12,133.80 and the costs of the action. The defendant was
arrested and held to bail to answer for his appearance on this
charge of contempt of court, and thereafter the defendant
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3] JANUAKY TEEM, 1909. 91
State ex rel. Hattabaugh v. Boynton, 140 Wis. 89.
moved to vacate the writ of attachment on the ground that he
was brought into the state of Wisconsin from the state of
Tennessee by extradition proceedings based on a criminal
complaint and warrant issued out of the municipal court of
Manitowoc county on a charge of embezzlement of this same
property. The defendant was arrested on the attachment for
contempt in the presence of the. municipal court and inmie-
diately upon his release on bail and without opportunity for
him to return to the state from which he was extradited.
The circuit court, upon the authority of Moletor v. Sinnen,
76 Wis. 308, 44 N. W. 1099, and on this showing, discharged
the attachment.
The relator appeals to this court and seeks to distinguish
the case from Moletor v. Sinnen, supra, on the ground that
the defendant here was at the time he absconded a resident
of Wisconsin and had not since acquired a residence else-
where, and that the circuit court had, prior to his departure
from Wisconsin, obtained in the equity suit jurisdiction of
the subject matter and of the person of defendant, and that
the defendant was guilty of the crime of embezzlement as
well as of contempt of court. But the case cited was decided
upon the hypothesis that the defendant was guilty and that
he had withdrawn himself from the state to avoid prosecu-
tion, and was a fugitive from justice in the legal sense of that
term. There does not seem to be any substantial distinction
as regards immunity from arrest on civil process between that
case and the instant case. The attachment in the instant
case was issued to enforce a civil or private right of the re-
lator, as appears from the facts above detailed. Sec. 3477,
Stats. (1898) ; sec. 2565, Id.
Other matters relating to the form of judgment and re-
ferring to sees. 2965 and 2966, Stats. (1898), are urged in
support of the decision of the circuit court, but we do not
find it necessary to pass upon them.
By the Court. — ^The order of the circuit court is affirmed.
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92 SUPREME COURT OF WISCONSIN. [June
Will of Prasser, 140 Wis. 92.
Will of Pkasses.
May H — June S, 1909.
Wills: Construction: Vaiure of estate created: Vested or contingent?
Intermediate trust estate: Legal estates: Seisin: Dower.
1. In determininf the nature of an estate created by will the will
itself is to be first construed to ascertain the testator's inten-
tion, and afterwards the statute is to be consulted to ascertain
how far the estate intended is affected thereby.
2. In the construction of a will the law leans, in doubtful cases, in
favor of an absolute rather than a defeasible estate, and of a
vested rather than a contingent interest
3. While the general rule is that a gift will be deemed contingent
when it is found only in a direction to divide at a future time,
this it snbordiuate to the primary rule that the intent, to be
collected from the whole will, must prevail.
4. A will gave the use of all testator's property to his widow during
her life, and provided that after her death the property should
be held in trust for ten years, the net income during that time
to be divided equally among his children. It then provided that
after the expiration of said ten years ''all my estate and prop-
erty then remaining in the hands of my said trustees I hereby
give, devise, and bequeath unto all my children in equal parts,
share and share alike." Held, that the interests of the children
became vested at the time of testator's death, subject only to
the life estate of the widow and the ten-year trust
5. By "seisin" as the term is used in sec. 2159, Stats. (1898), re-
lating to dower, is meant a fixed vested right of enjoyment of
the estate, either immediately or at the termination of an in-
termediate estate.
6. Sec. 2159, Stats. (1898), gives dower out of legal estates only, as
was the case at common law.
7. Under sees. 2036, 2087, Stats. (1898), when a trust In lands is
created and the lands at the same time granted or devised sub-
ject to the execution of the trust, the trustee takes only such
interest as the purposes of the trust require, and the grantee
takes the entire title as against the world in general, and as
against the trustee he takes the beneficial equitable interest
subject only to the execution of the trust according to its terms.
8. A devisee who, under the will, took a vested remainder in fee
in land of the testator, subject only to a life estate and to a
subsequent trust limited to ten years, and who died after the
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3] JANUAKY TERM, 1909. 93
Will of Prasser, 140 Wis. 92.
life estate had ended, was during his life "seised of an estate
of inheritance*' within the meaning of sec. 2159, Stats. (1898),
and anch estate being a legal estate as against all persons
except the trustees, whose term was for years only, his widow
was entitled to dower.
Appeals from a judgment of the circuit court for Mil-
waukee county: J. C. Lxidwig, Circuit Judge. Modified
and affirmed,
George I. Prasser died May 5, 1902, leaving a will, which
was afterwards duly probated, and by which he gave the use
of all his property to his wife during her life, and provided
that after her death his executors should hold the entire es-
tate in trust for ten years, using so much of the income as
might be necessary for the maintenance of the property,
keeping the real estate in good repair, paying all taxes
thereon, and rebuilding any buildings that might be destroyed
by fire, and dividing the net balance of the income 'T)e-
tween my children, share and share alike." Then follows
this provision:
"After the expiration of ten years after the death of my
said wife, all my estate and property then remaining in the
hands of my said trustees I hereby give, devise, and bequeath
unto all my children in equal parts, share and share alike."
Prasser left real estate of the value of $50,000 and per-
sonal property of the value of $15,000. He was survived
by a widow and seven children. The widow, Amalia Pras-
ser, died September 9, 1902. Theodore Prasser, one of the
children, died August 28, 1906, leaving a widow, Helen
Prasser, and one minor child, Clarence Prasser. Amalia
Seidentopflf, a married daughter, died August 2, 1906, leav-
ing her husband as her sole heir. The remaining five chil-
dren are still alive. This proceeding was brought in the
county court of Milwaukee county to construe the will. The
county court held that upon the death of the testator the
seven children took equal vested interests in the estate, sub-
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^4 SUPREME COURT OF WISCONSIN. [June
Will of Praseer, 140 Wis. 92.
ject to the life estate of the widow and the ten-year trust es-
tate; that in case of the death of any child during the ten-
year trust term his Tested interest in real property would
pass to his heirs and in personal property to his personal rep-
resentatives respectively. Helen Prasser was denied any
dower in the interest of Theodore Prasser. Upon appeal the
circuit court confirmed this judgment, and the executors and
trustees appeal. Helen Prasser also appeals from that part
of the judgment denying her dower.
For the appellants the executors and trustees the cause
was submitted on the brief of Julius E. Boehr.
For the appellant Helen Prasser the cause was submitted
■on the brief of Harper & McMynn.
For the respondent Clarence Prasser there was a brief by
Oscar M. Fritz, guardian ad litem, and Kronshage, McOov-
em, Oojf, Fritz & Hannan, of counsel; for the respondent
Fidelity Trust Company, administrator of the estate of Theo-
-dore H. Prasser, deceased, and for the respondent Helen
Prasser, there was a brief by Harper & McMynn; for the
respondent Ernst Seidentopff, sole heir of the estate of Ama-
lia Seidentopff (nee Prasser), and as administrator of her
estate, there was a brief by Burke, Alexander & Burke; for
the respondent Prudential Investment Company there was
a brief by (?. D. Ooff; and the cause was argued orally by
Mr. Ooff.
WiNSLOW, C. J. The question upon the appeal of the exec-
utors and trustees is whether the estate vested in the children
living at the time of the testator's death, or whether there
will be no vesting of the estate until the end of the trust pe-
riod, and then omly in the children who shall then survive.
In determining the nature of an estate created by will, the
will itself is to be first consulted and afterwards the statute.
The operations should not be reversed. The will is to be first
construed because the first and controlling question is, What
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3] JANUARY TERM, 1909. 95
Will of Prasser, 140 Wis. 92.
sort of an estate did the testator intend to carve out? and
this can only be determined by construction of the will.
After the testator^s intention has thus been determined, the
statute is to be consulted in order to ascertain how far the es-
tate intended to be created by the testator is affected, limited,
or inhibited by the law. It was said in Smith v. Smith, 116
Wis. 570, 93 K W. 452, that:
"The primary canon in the construction of wills is that
the intent is to be gathered from the whole will, rather than
from the phraseology of any particular isolated clause. It is
also well established that in doubtful cases the law leans in
favor of an absolute, rather than a defeasible, estate, and of
a vested, rather than a contingent, interest, and that, while
the general rule is that a gift will be deemed contingent when
it is found only in a direction to divide at a future time, this
is subordinate to the primary rule that the intent, to be col-
lected from the whole will, must prevail."
It was further said in the case of Ohse v. Miller, 137 Wis.
474, 119 N. W. 93 :
"The gift will be held to vest, if such appears to have been
the testator's intention, even though it be expressed in a mere
direction to pay. . . . The real inquiry is whether the ele-
ment of time is annexed to the gift itself as a condition pre-
cedent, or merely to the payment of it."
These principles are well settled, nor are they in any re-
spect doubted, but rather recognized, in the case of In re
Moran's Will, 118 Wis. 177, 96 N. W. 367, which is much re-
lied on by appellants. Applying them to the present case, we
have no diflSculty in concluding that the testator intended the
interests of his children to vest at the time of his death, sub-
ject only to the life estate of the widow and the ten-year trust.
The words of the devise are words of a present grant, not of
mere direction for division at a future date. The net annual
income is to be divided among the children during the entire
period of the trust, showing the intention that the beneficial
enjoyment should begin as soon as the life estate should be
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96 SUPKEME COURT OF WISCONSIN. [June
Will of Praaeer, 140 Wis. 92.
concluded, and the devise is "unto all my children." These
features are all indicative of an intention to vest a preswit in-
terest in each child at his death, rather than to suspend the
vesting until the end of the trust period.
Passing to the question of Helen Prassers right to dower,
it is to be remembered that at the time of her husband's death
the life estate had ended, and only the existence of the ten-
year trust prevented the husband from entering into the ac-
tual possession of his interest, which, as we have seen, was al-
ready vested. Our statute gives a widow dower in all lands
of which her husband was "seised of an estate of inheritance"
at any time during coverture. By "seisin" is meant a fixed
vested right of enjoyment of the estate either immediately or
at the termination of an intermediate estate. 1 Washb. Real
Prop. (6th ed.) § 116. At common law there was no dower
right in a reversion or remainder after a freehold estate, un-
less the freehold estate terminated during the life of the hus-
band ; but there was dower in a reversion or remainder after
an estate for years. 1 Washb. Real Prop. (6th ed.) § 365.
At common law, also, there was no dower in an equitable es-
tate. The husband must have had legal title. Id. § 374.
In England and in many of the United States this latter rule
has been changed by statute, and dower given out of equitable
estates. Id. § 375. Our statute, however, says nothing of
equitable estates, and doubtless is to be r^arded as simply
/"giving dower out of legal estates, as was the case at common
law. Sec. 2159, Stats. (1898) ; 1 Scribner, Dower (2d ed.)
ch. 19, § 20 et seq., p. 400.
In the present case the husband's interest had vested at the
testator's death, the life estate of the widow of the testator
had ended during the husband's life, and the trust, limited to
the term of ten years, alone intervened before the husband's
right of possession would become perfect. Under these cir-
cumstances, was the husband during his life seised of an es-
tate of inheritance? Sec. 2086, Stats. (1898), provides that
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3] JANUARY TEEM, 1909. 97
Will of Praeser, 140 Wis. 92.
ill case of a valid express trust the whole estate shall vest in
the trustees ''except as herein otherwise provided/' and that
the cestui que trust shall take no interest in the land, but may
enforce the trust Sec. 2087 provides, however, that:
"The preceding section shall not prevent any person creat-
ing a trust from declaring to whom the lands to which the
trust relates shall belong in the event of the failure or deter-
mination of the trust, nor shall it prevent him from granting
or devising such lands subject to the execution of the trust ;
and every such grantee shall have a legal estate in the lands
as against all persons except the trustees and those lawfully
claiming under them.'*
From the two sections taken together it must result that
when a trust in lands is created, and the lands at the same
time granted or devised subject to the execution of the trust,
the trustee takes only such interest as the purposes of the trust
require, or, as frequently expressed, only such interest as is
necessary to feed the trust, and the grantee takes the entire
title as against the world in general, and as against the trus-
tee he takes the beneficial equitable interest, subject only to
the execution of the trust according to its terms. Baker v.
Estate of McLeod, 79 Wis. 534, 48 N. W. 657. Such was
Theodore Prasser's interest here. It was vested, subject only
to the execution of the trust, and was a "legal estate" as
against all persons except the trustees, whose term was for
years only. Why should not his widow have dower in this
legal estate ? We have discovered bo good reason for a nega-
tive answer to this question, and hence conclude that she
should have been awarded dower in her husband^s vested in-
terest in the real property of the estate. So long as the trust
exists, this means, of course, only a one-third interest in the
net annual rents of the real estate after the purposes of the
trust have been fully performed.
By the Court. — Judgment modified so as to provide that
the trustees shall pay to Helen Prasser annually one third of
the net rents, profits, and income derived from Theodore
Vol. 140—7
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98 SUPREME COURT OF WISCONSIN. [June
Weirich v. State, 140 Wis. 98.
Prasser's one-seventh interest in the real property of the es-
tate, and the balance to the general guardian of Clarence
Prasser, and, as so modified, the judgment is affirmed on both
appeals : one bill of costs to be taxed by respondents and paid
out of the estate.
Wbibich, Plaintiff in error, vs. The State, Defendant in
error.
May Iff — June S, 1909.
Construction of penal statutes: "Public highways f* ToU roads: Auto-
mobiles: Speed.
1. A penal statute is open to construction when there is reason-
able uncertainty as to its meaning^.
2. In case of there being two or more equally reasonable meanings
of a penal statute, that one is to be regarded as expressing the
legislative will which is the least severe as regards previous
conditions.
3. The rule of strict construction of a penal law Is subordinate to
the rule of reasonable, sensible construction, having in view
effectuation of the legislative purpose.
4. The term "public highway/' in the broad ordinary sense, in-
cludes every common way for travel by persons on foot or
with vehicles rightfully used on highways, which the public
have the right to use either conditionally or unconditionally.
5. The term "public highway" in a limited sense means a way for
general travel, which is wholly public.
6. In the general sense the term "public highways" Includes toll
roads; in its limited sense it does not.
7. The term "public highway'* In a general law should be regarded
as having been used by the legislature in its general sense
unless there is some efficient reason for believing it was used
in the limited sense.
8. A general law, regulating the operating of automobiles upon
public highways in the interest of public safety, rather sug-
gests use of the term "public highway" In the general than
the particular sense, since the danger of personal Injury is
quite as great and immunity therefrom is quite as iniportant
as to travelers on the one as the other.
[Syllabus by Marshall, J.l
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3] JANUAKY TERM, 1909. 99
Weirich v. State, 140 Wis. 98.
Ereor to review a judgnient of the municipal court of Mil-
waukee county : A. C. Brazee, Judge. Affirmed.
Writ of error to the municipal court of Milwaukee coimty
to review a conviction for violation of sec. 3, ch. 305, Laws
of 1905.
The law claimed to have been violated made operating an
automobile upon any "public highway" within the corporate
limits of any city or village, at a speed exceeding twelve miles
per hour, an offense punishable by a fine of not less than $10
and not more than $25. The cause, by consent, was tried
without a jury. The proof showed the accused to have vio-
lated the statute, if Whitefish Bay Koad — a toll road located
within the corporate limits of .the village of East Milwaukee
and owned and operated by a private corporation under
ch. 350, P. & L. Laws of 18G9 — is a public highway within
the meaning of sec. 3, ch. 305, Laws of 1905. The trial court
held in the affirmative on that proposition and rendered the
judgment in question accordingly.
For the plaintiff in error there was a brief by Ryan, Ogden
<& Bottum, and oral argument by L. M. Ogden.
For the defendant in error there was a brief by the Attor-
ney General, A, C. Backus, district attorney, and Norman L.
Baker, assistant, of counsel, and oral argument by Mr. Baker.
Marshall, J. The following is the statute under con-
sideration :
"No person or persons shall use, operate, ride or drive any
automobile or other similar motor vehicle along or upon any
public highway of this state within the corporate limits of
any city or village at a speed exceeding twelve miles per hour.
. . ." "Any person who shall violate the provisions of," etc.,
"shall be punished by a fine of not less than ten dollars and
not more than twenty-five dollars. . . ." Sees. 3, 8, ch. 305,
Laws of 1905.
It may well be conceded, as claimed by counsel for plaint-
iff in error, that where the meaning of a penal law is obscure
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100 SUPKEME COURT OF WISCONSIN. [June
Weirich ▼. SUte, 140 Wis. 98.
80 the legislative purpose is discoverable only by aid of rules
for judicial construction, and there are two or more meanings
which are equally within the scope of the language, that one
least severe is to be regarded as the one intended, unless it
appears, satisfactorily, in the light of all legitimate aids in
the matter, that some other of such meanings was intended.
In other words, strict construction in favor of the person
sought to be penalized should prevail. That is too elemen-
tary to need to be more than stated.
It is a mistake to suppose that a penal statute is, neces-
sarily, to be strictly construed so as to minimize its otherwise
severity, as might be thought by the often unguarded state-
ments of the rule, — ^because a statute does not always neces-
sarily have to be construed at all. As has often been said,
judicial construction is only invokable to solve uncertainties.
So where there is no ambiguity there cannot, legitimately, be
judicial construction. Rice v. Ashland Co. 108 Wis. 189,
192, 84 N. W. 189; Bossmiller v. State, 114 Wis. 169, 178,
89 N. W. 839. Vattel's rule in this regard, by reason of its
universal approval, has the force of written law:
"It is not allowable to interpret what has no need of inter-
pretation. Where the meaning of a law is evident, to go else-
where in search of conjecture in order to restrict or extend the
act, would be an attempt to elude it, a method which if once
admitted, would be exceedingly dangerous, for there would be
no law, however definite and precise in its language, which
might not by interpretation be rendered useless."
It is also a mistake to suppose, in case of a penal statute
being ambiguous, that the one of two meanings which are
within the scope of the language used that will render it the
least severe is to be regarded as embodying the legislative idea.
As before indicated, given an ambiguous law, and uncertainty
as to which of two or more meanings reasonably within the
scope of the language thereof, from the point of view from
which observation should be taken, was intended, then and
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3] JANUAEY TERM, 1909. 101
Weirich v. State, 140 Ww. 98.
then only does the elementary rule as to strict construction
come into play as an instrumentality for solving the difficulty.
Miller v. C. & N. W. B. Co. 133 Wis. 183, 113 N. W. 384.
The foregoing stated principles were expressed in Miller v.
C & N. W. B. Co., supra, referred to in the attorney generaFs
brief, thus : "The idea of strict construction does not suggest
attributing an unreasonable meaning/'
As a companion rule to that as to strict construction of a
penal law, we have the one that such a law as well as any other
is to have a reasonable, sensible construction, so as to effect,
so far as practicable, the legislative purpose {Miller v, C. &
N, W. B. Co,, supra), and the further very general rule that
in construing an enactment observation thereof should be
taken from the point of view of the mischiefs to be prevented,
of the whole of the enactment and every part thereof, the sub-
ject matter, the effect and consequences, and the reason and
spirit {Ogder^ v. Olidden, 9 Wis. 46 ; Harrington v. Smith,
28 Wis. 43 ; HaHford v. N. P. B. Co. 91 Wis. 374, 64 N. W.
1033; Wis. Ind. School v. Clark Co. 103 Wis. 651, 79 N. W.
422).
Applying the foregoing to the case in hand there is no seri-
ous difficulty in reaching a satisfactory result. The term
"public highway," in its broad popular sense, includes toll
roads — any road which the public have a right to use even
conditionally, though in a strict legal sense it is restricted to
roads which are wholly public. Elliott, Roads & Streets (2d
ed.) § 8; Mills's Thompson, Highways (4th ed.) 7; Neff v.
Reed, 98 Ind. 341 ; Bogers v. Bradshaw, 20 Johns. 735, 742 ;
Pittsburgh, M. & Y. B. Co, v, Comm. ex rel, Att'y Gen, 104
Pa. St. 583, 59,6] Northern Cent. B, Co. v. Coram, 90 Pa. St.
300, 302; Fox v. Union T. Co. 59 App. Div. 363, 69 N. Y.
Supp. 551 ; Dodge Co. CommWs v. Chandler, 96 U. S. 205,
208; Bonaparte v. C. & A. B. Co. 3 Fed. Cas. 821, 829;
Craig v. People ex rel. Nevill, 47 HI. 487, 493 ; Comm. v.
Wilkinson, 33 Mass. 175 ; Murray v. Berkshire Co. CommWs,
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102 SUPREME COURT OF WISCONSIN. [Junk
Weirich v. 6tate, 140 Wis. 98.
53 Mass. 455, 458; Pickard v. Howe, 53 Mass. 198, 208;
State V. Maine, 27 Conn. 641.
In the numerous eases cited we find very many laws treated
where it was held that a toll road is included in the term
"public highway." In Neff v. Reed, supra, it was held that
such a term in the drainage law of Indiana includes a toll
road. In Craig v. People it was said that, in the general
sense, toll roads are public highways notwithstanding they are
subject to the toll burden. The public has the same right to
use them, subject to the toll exaction, for general travel as or-
dinary highways. In Dodge Co. Comrnrs v. Chandler, su-
pra, the federal supreme court held that a toll road is a pulv
lic highway because the public have a right to use it and that
the charge of a toll in no way affects its character as a public
highway. In Coram, v. Wilkinson, supra, an indictment for
encroaching upon a public highway, which was a toll road,
was sustained. In State v. Maine, supra, the nature of the
action and the result was the same as in the preceding cited
case, the court saying:
"A road constructed and supported by a turnpike corpora-
tion differs in no essential characteristic from a common high-
way, established and supported by a to\vTi, a borough, or a
city. Their origin and objects are identical. Both emanate
from the same supreme power, acting through the legislature,
the courts, or other depositaries of authority designated by
the laws. Both are called into existence, and supported, to
subserve, in exactly the same way, the public necessities and
convenience, and both alike are intended to endure for an in-
definite period . . ." — citing Massachusetts cases above re-
ferred to holding that a toll road is a public highway.
Now is there any reason for holding that the term "public
highway" was not used in the law in question in its broad
general sense ? It is suggested that an intent to use the
words in a limited sense is inferable from the modifying word
"public" in view of the fact that toll roads are differentiated
from ordinary public ways in sec. 1895, Stats. (1898), by
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3] JANUARY TERM, 1909. 103
Weirich v. State, 140 Wie. 98.
its providing that upon the abandonment of a toll road by the
owner it shall be deemed a public highway, and in sec. 1311a,
Stats. (1898), providing for the acquirement by the public of
toll roads for the purpose of making them public highways.
It does not seem so. On the other hand, in view of the well-
known need for regulation of the operations of the dangerous
modem road machine, the word "public" seems quite as
likely to have been used to broaden as to restrict the word
''highway," so as to include all ways used by public right for
public travel.
The manifest purpose of the law was to protect travelers
upon public ways from being subjected to the peril created
by unduly speeding automobiles thereon. It is just as im-
portant to afford such protection on toll roads as on ordinary
public highways. There is no difference whatever.
Therefore, while recognizing that in some cases, by appli-
cation of the rule of strict construction, the term "public
highway" has been held to rather exclude than include toll
roads, each case went upon its own particular circumstances
and in some instances not very satisfactory reasoning. Few,
if any, of the multitude of judicial authorities extant hold
that the general meaning of public highways does not include
toll roads. We have reached the conclusion that in passing
the law in question the legislature, very clearly, contemplated
furnishing a remedy, by way of prevention and punishment,
for speeding with automobiles upon any public thoroughfare,
where such speeding, if allowed, might imperil the personal
safety of travelers, — that the term "public highway" was
used in a sense as broad as the mischief to be guarded against,
which was just as significant as to toll roads as ordinary high-
ways.
By the Court. — Judgment affirmed.
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104 SUPREME COURT OF WISCONSIN. [June
Spick V. State, 140 Wis. 104.
Spiox, PlaintiflF in error, vs. The State,- Defendant in error.
May 15-^une 5, 1909,
<!riminal law and practice: Jurors: Conscientious soruples: Oircum^
stantial evidence: Instructions to jury: Evidence: Weight: Com-
petency: Questions for court and for jury: Harmless errors:
Homicide: Motive: Informer as to other offense hy accused:
Hearsay: Impeachment of toitness: Rejection of his testimony
by jury: Presumption of innocence: Degrees of murder: In-
structions as to importance of agreeing on verdict.
1. A person called as a juror who discloses on the voir dire con-
scientious scruples against rendering a verdict on circumstan-
tial evidence alone, may properly be rejected as incompetent,
with or without objection by counsel.
2. While it would be well to specially instruct a Jury on the sub-
ject of circumstantial evidence where the truth of a contro-
versy is to be discovered partly or wholly frcHn such evidence,
omission to do so is not fatal error unless proper instructions
In respect thereto are presented and rejected.
8. The rejection of evidence offered to prove that a person other
than the accused committed the particular homicide in ques-
tion is not harmful error, where it is manifest from the whole
evidence that such person was in no way connected with the
offense, in that he was not in the vicinity of the place thereof
at the time of the occurrence.
4. Circumstantial evidence is an instrumentality in the adminis-
tration of justice quite as legitimate as direct evidence for the
establishment of an evidentiary circumstance, or the main fact
in controversy in a judicial trial.
^. The degree of certainty respecting the existence of the main
fact in controversy in a judicial trial, in order to warrant a
finding in favor of the party affirming such existence, is the
same where the evidence relied upon is partly or wholly cir-
cumstantial as where it is direct
'€. The weight of evidence to establish an evidentiary circumstance,
and the weight of such circumstance as evidence when estab-
lished, is for the jury.
7. Whether evidence offered tends to establish an evidentiary cir-
cumstance, or such circumstance to establish the main fact in
controversy, is a question for the court. The decision in that
regard, being in the field of mere competency, should not be
disturbed on appeal unless manifestly wrong, the matter to be
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3] JANUAEY TERM, 1909. 105
Spick ▼. State, 140 Wis. 104.
viewed having regard to the superior advantages of the trial
over the reviewing court for determining such question.
8. In case the evidence, whether wholly circumstantial or not, pro-
duces a conviction to a moral certainty— ^hat Is, heyond a rear
sonable doubt — In the minds of the jury of the existence of
the ultimate fact In controversy, a verdict Is due accordingly
the same as if conviction with like degree of certainty were
produced by direct evidence.
9« It is proper, though not necessary, In instructing a jury In a
criminal case, where conviction is dependent partly or wholly
on circumstantial evidence, to use this language or something
similar: The accused Is entitled to an acquittal unless the evi-
dence satisfies the jury to a moral certainty of the existence
of all the material circumstances; that they are consistent
with guilt and Inconsistent with any other reasonable hypoth-
esis.
10. In a criminal case it is sufficient to Instruct the jury in any ap-
propriate language, as to the degree of certainty of guilt requi-
site to a conviction, to the effect that: In order to warrant a
conviction each and all of the material circumstances and the
fact of guilt should be established to the satisfaction of the
jury beyond every reasonable doubt
11. Proof of motive is not essential to a conviction in a prosecution
of a person upon a charge of his having committed a criminal
offense, but circumstantially it is of more or less weight as
to the material fact according to the nature of the situation;
and in a case resting wholly upon circumstantial evidence the
presence or absence of motive may well be the deciding factor.
12. In a prosecution for a criminal homicide dependent upon cli^
cumstantlal evidence, as bearing on the question of motive of
the accused for doing the deed of which he is accused, It is
competent to show that prior to the homicide the deceased re-
ported that the accused had, to his knowledge, committed an-
other offense, in the absence of any direct evidence that the
accused knew who was the Informant, if, from all the circum-
stances, it is reasonably inferable that he did know in fact,
or had good reason to believe and did believe, the deceased to
be his accuser; consideration of such evidence to be dependent
upon belief of the jury that the defendant did, in fact, know
or believe before the homicide that the deceased was the in-
former.
13. In case a decision by a trial court on the question of competency
when made was wrong, but is right viewed from the stand-
point of the whole evidence at the close of the trial, the error
is harmless.
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106 SUPREME COURT OF WISCOXSIX. [June
Spick V. State, 140 Wis. 104.
14. A jury may be instructed that the evidence on the part of the
state tends to establish its claim and that on the part of the
defendant the contrary, It being made plain that the real right
of the matter is wholly for them to determine from all the
evidence produced.
15. A witness may be impeached by proving by the evidence of other
witnesses that his evidence is false; also by proving he has
made statements out of court inconsistent with those made
under oath in court. But a jury should not be instructed that
If they believe from all the evidence that the testimony of any
witness is false they may reject it, as if they had discretion
whether to reject or not reject such evidence, nor be instructed
that whether to reject such evidence or not is conditioned upon
whether the same is corroborated by other credible evidence.
16. Belief upon the whole evidence that the testimony of any wit-
ness is false precludes the existence of its being corroborated
by any credible evidence so as to be entitled to be believed.
Any suggestion to the contrary involves absurdity and is to
be avoided because of danger of the subject being confused
with the rule of faUiut in uno, faisus in omnibus.
17. If the jury believe that any witness has wilfully testified falsely
respecting any material matter, they may, if they see fit, but
are not bound to, reject all of such witness's evidence on that
ground alone, where not corroborated by some other credible
evidence.
18. A person on trial, charged with having committed a criminal
oftense, is presumed to be innocent; and such presumption en-
titles him to an acquittal till overcome by evidence establishing
his guilt to the satisfaction of the jury beyond a reasonable
doubt
19. In case of a criminal homicide manifestly committed by an act
imminently dangerous to human life, and indicative of de-
pravity of mind and disregard of human life, so characterized
as to show the grade of the offense to be murder in the first
or second degree, any circumstance sufficient, reasonably, to
at least cause reasonable doubt as to whether the act was pur-
suant to a formed design to take human life, warrants finding
a verdict of guilty of murder in the second degree.
20. In case of belief from the evidence beyond a reasonable doubt
that the accused is guilty of the offense of criminal homicide
in either the first or second degree, but there is reasonable
uncertainty between the two degrees, though belief of gnilt
of the offense at least in the second degree, a verdict of guilty
in such degree is proper.
21. A jury may properly be admonished of the importance of agree-
ing upon a verdict and told, if such appears reasonably to the
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3] JANUARY TERM, 1909. 107
Spick V. SUte, 140 Wia. 104.
trial judge to be the situation, that the evidence Is not so vo-
luminous or hard to understand, but that a conclusion can be
reached one way or the other within a reasonable time, and
that such result is expected, care being taken not to suggest
which way is proper or to go further than to stimulate appre-
ciation of jury duty.
[Syllabus by Mabshaix, J.]
Dodge, J., and Winslow, C. J., dissenting, are of the opinion
that it was prejudicial error in this case to admit evidence that
the deceased had reported to a third person that the accused
had committed another offense (see par. 12, supra), — such evi-
dence being pure hearsay and there being no other evidence
that the accused had committed such other offense and no evi-
dence warranting an inference that he knew or suspected that
the deceased had given such information.
EsBOB to review a judgment of the circuit court for Bay-
field county : John K. Paeish, Circuit Judge. Affirmed.
The plaintiff in error was informed against as having, on
the 28th day of August in the year 1907, at the county of
Bayfield, in the state of Wisconsin, feloniously, wilfully, and
with his malice aforethought, killed and murdered Boni Lom-
bard. He was in due form tried on such charge, found guilty
of murder m the second degree, and duly sentenced to be pun-
ished by confinement at hard labor in the state prison at
Waupun for the period of twenty years, the first day of such
period to be solitary confinement.
A writ of error was, in due form, sued out to review the
case on exceptions duly saved. The facts are stated in the
opinion.
John Walsh, for the plaintiff in error.
For the defendant in error there was a brief by the Attor-
ney General and /. E. Messerschmidt, assistant attorney gen-
eral, and oral argument by Mr, Messerschmidt.
Marsha I.I-, J. The place of the homicide was in a sparsely
settled wild country in which the plaintiff in error and the-
deceased lived. The latter was the sole occupant of a home-
stead claim, called the Morrison homestead, about a mile and
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108 SUPREME COURT OF WISCONSIN. [Juwe
Spick T. State, 140 Wis. 104.
a half from the nearest neighbor. He did a little farming,
but spent his time, mainly, in hunting and fishing and enter-
taining persons who resorted to that region for the purpose of
fishing. The deceased resided with his employer, one
Barnes, who lived about a mile and a half from the Morrison
homestead and did a farming, lumbering, saloon, and general
store business. There were only three other persons, all
homesteaders, living in that locality. Barnes had been ac-
quainted with the deceased for about nineteen or twenty
years, and during the two years prior to the homicide had em-
ployed him as a foreman in the woods and as a farm hand.
The accused and the deceased were addicted to drinking in-
toxicating liquor somewhat to excess, though the habits of the
latter in that regard were not so pronounced for a short time
before the homicide as formerly. He and the accused were
well acquainted. The latter had been in disrepute with
Barnes and the deceased for a considerable time before the
homicide. Some incidents had recently occurred which in-
creased the bad repute, particularly the fact that Barnes had
lost cattle and it had been reported to him that the accused
had killed and made away with them. The accused dis-
trained one of the cattle because of its trespassing upon his
premises, and Barnes compelled him to release the animal.
The deceased was partly of Indian blood. There were a num-
ber of that blood who lived not far away and some were ac-
customed to work for Barnes under the direction of the de-
ceased. For some days before the homicide the deceased had
charge of a crew of Indians putting up hay for Barnes at a
point where, in going thereto and returning therefrom, by
the shortest and usual route, he had to pass the place where
the accused lived. The day before the homicide the latter,
the accused, and two others went fishing on a lake, using a
boat. They had liquor along and the accused drank to such
excess that he fell out of the boat into the water. About 4
o'clock in the afternoon his associates took him home, changed
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3] JANUAKY TERM, 1909. 109
Spick y. State, 140 Wis. 104.
his clothes, and put him to bed. The deceased was last seen
alive going in the direction of the Morrison homestead about
6 o'clock on the following morning. Between 3 and 4 o'clock
in the afternoon of that day the accused visited the Barnes
place and reported that Lombard had been killed. He stayed
there until 6 o'clock and in the meantime drank to excess.
He bought some groceries and started home with them in a
sack. Later he was found lying beside the road in a drunken
stupor about a mile from his destination and was assisted to
regain his feet and accompanied home. To the person who
assisted him to his feet he remarked, ^'I was just as liable to
lay there as I did with Boni." In the meantime, two men
went from Barnes's place to investigate the report as to the
death of Lombard and found his body in the road about forty
feet from the Morrison house. A bullet from a rifle had
passed through his upper right side, apparently killing him
almost instantly. There was a trail of blood from the body
for a distance of seventy to eighty feet to a pile of lumber
just outside a window, near the southwest comer of the house,
at which point there was evidence of considerable blood hav-
ing been lost, and there was a whisky jug belonging to the
accused, marked with blood and dirt. There were indications
that a rifle shot had recently passed through the wire screen
in the window, fired from inside the house in the direction of
the place where it seemed the deceased was when shot. On
the bed in the house lay defendant's rifle, with indications
that it had recently been discharged. A rifle belonging to the
deceased, of the same caliber as the other, was found a short
distance from where he was apparently shot, but there were
no indications that it had been recently discharged. The
jug was full of whisky and in the house on the morning of
the homicide. When found it was nearly empty. There
was evidence establishing without controversy, or tending
to establish, all these circumst^ces and others of a more or
less incriminating nature, including some statements of the
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110 SUPREME COUET OF WISCONSIN. [June
Spick V. State, 140 Wis. 104.
accused, from which it was inferable that he was the guilty
party, while there was other evidence from which it was
claimed it was inferable that some other person did the deed.
The accused after returning home drunk, as before stated,
on the day of the homicide remained there till the next morn-
ing sleeping off his debauch. In the meantime several per-
sons, attracted to the place by the report of the homicide,
were about the premises, including the two men who first
went to investigate the matter. They remained watching the
body till the next morning, when there was a coroner's in-
quest and it was removed.
The story of the accused was, that upon waking up after
sleeping off his debauch of the day before the homicide, he
went on a fishing trip of several miles and at his destination
used a particular boat; that he returned in the afternoon
about 1 o'clock and, upon finding the body of the deceased in
the road, put down his sack of fish at the side of the house
and went to the Barnes place and reported the fact. There
was circumstantial evidence that his story was false, such as
there being no sack of fish foimd at the side of the house by
any one attracted to the place by the report of the hdmicide
before the accused returned from the Barnes place, and the
boat he claimed to have used on the fishing trip not having
been disturbed on the day of the homicide.
Several errors are assigned, not argued in the brief of coim-
sel for the accused, though some of them were mentioned in-
cidentally, or argued briefly, on the oral argument. We will
pass them with this mention thereof and with the statement
that they have received sufficient attention to satisfy the court
that neither of them is material.
The court properly sustained a challenge of a juror because
he testified to having conscientious scruples against convict-
ing a person of a capital offense on circumstantial evidence
alone. Such a person is manifestly incompetent for jury
duty. By the law of the land, which every citizen is bound
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:3] JANUARY TERM, 1909. Ill
Spick V. State, 140 Wis. 104.
to support, and every juror before being competent to sit in
a ease is so specially bound by his solemn oath, it is as legiti-
mate to judicially establish a fact by circumstantial as by di-
rect evidence, and it is as much the duty of a juror to act ac-
cording to the weight of the former as. to act according to the
weight of the latter. A person might as well say, generally.
Tie has conscientious scruples against obeying the law of his
country as to say he has such scruples against acting as a
juror upon circumstantial evidence in a capital case. Such
a person has too much conscience, so to speak, for the best of
citizenship. More properly speaking, he has that species of
conscience with that grade of weakness that often makes the
coward mistake his timidity for that conscience which is
worthy of distinction.
It is suggested that in view of something said or decided in
Kollock V. State, 88 Wis. 663, 60 N. W. 817, the court com-
mitted error by not instructing the jury on the subject of
circumstantial evidence, though no request wa^ made in that
regard. We do not find anything in that case so holding.
The difficulty there was that the trial court not only omitted
to give any instructions in the general charge, specially on the
subject of circumstantial evidence, but refused to give instruc-
tions embodying correct legal principles in respect to the mat-
ter, requested by counsel for accused. While it would be well
to give such instructions in any case like this, it is a matter
so largely within the discretion of the trial judge that omis-
sion to do so cannot be regarded as ground for reversal, un-
less the omission is in face of a proper request for such in-
structions.
One Beauregard was called as a witness for the state to
prove that he found the accused in a dnmken stupor beside the
road where, as before stated, he had fallen or lain down while
returning from the Barnes place after having been there and
reported the homicide. An attempt was made on cross-exam-
ination to show he had ill will toward the deceased and had
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112 SUPREME COURT OF WISCOlfSIN. [Jun»
Spick V. State, 140 Wie. 104.
threatened to kill him^ as bearing on the probability that he,
instead of the accused, was the guilty party. The offer wa»^
not made as bearing on his credibility, but as direct evidence
of motive for taking Lombard's life. The questions were
ruled out as not proper cross-examination. If the ruling were^
improper, and we do not suggest it was not, it was harmless,
since there was positive imdisputed proof that the witness was^
at work some over a mile from the place of the homicide when
it occurred.
The claim is made that the evidence being all circumstan-
tial, and there being indications that some other person than
the accused might have committed the homicide, the jury^
were not warranted in finding the circumstances pointed so-
strongly to the accused as the one who did the deed, as to ex-
clude every reasonable hypothesis to the contrary. We shalT
not take time to go over the evidence in detail It has been
stated in a general way and sufficiently for the purpose of this
assignment of error.
True, it was improper to convict the accused unless the
evidence established the material evidentiary circumstances
beyond a reasonable doubt, and all such circumstances pointed
so unerringly to the accused as the guilty party as not to be-
reasonably reconcilable upon any other reasonable theory than
that of his guilt. But the degree of certainty in such a case^
is no greater than in one resting wholly upon direct, or partly
upon direct and partly upon circumstantial evidence. The
subject was discussed at considerable length in Schwanies v.
State, 127 Wis. 160, 106 N. W. 237, where occasion was im-
proved for correcting the erroneous notion that circumstan-
tial evidence should be viewed with such distrust as to be in-
efficient in face of mere conjecture or possibility of incorrect-
ness of its indications, upon the theory that to be efficient it
must establish guilt with some appreciably higher degree of
certainty than direct evidence. Experience shows that the-
former is quite, if not more likely, to lead to a wrong result
than the latter.
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3] JANUARY TERM, 1909. 113
Spick V. State, 140 Wis. 104.
An eminent commentator on the criminal law, speaking on
this subject, very aptly thus pictures the misunderstanding
sometimes found to exist:
"Much embarrassment has arisen over the position ad-
vanced by two eminent text-writers, that, to justify the in-
ference of legal guilt from circumstantial evidence, the ex-
istence of inculpatory facts must be absolutely incompatible
with the innocence of the accused, and incapable of explana-
tion upon any other reasonable hypothesis than that of his
guilt. Judges, on hearing these expressions, have been very
apt, in the hurry of a trial, to accept and apply them; and
hence have sprung up a series of dicta to the effect that cir-
cumstantial evidence is to be viewed with distrust, and that,
to justify a conviction on circumstantial evidence, it is neces-
sary to exclude every possible hypothesis of innocence.'^
Whart. Crim. Ev. (9th ed.) § 10.
Speaking on the same subject, said Whitman, C. J., in In
re Thorn, 6 Law Rep. 49, 54: "Circumstantial evidence is
often stronger and more satisfactory than direct, because it
is not liable to delusion or fraud."
And Gibson, C. J,, in Comm. v. Harman, 4 Pa. St 269,
271:
"Circumstantial evidence is, in the abstract, nearly, though
perhaps not altogether, as strong as positive evidence; in the
concrete it may be infinitely stronger. A fact positively
sworn to by a single eye-witness of blemished character is not
so satisfactorily proved as is a fact which is the necessary con-
sequence of a chain of other facts sworn to by many witnesses
of undoubted credibility."
We repeat the summing up in the Schwantes Case, 127
Wis. 160, 177, 106 N. W. 237, 243:
"Evidentiary facts established by evidence more or less di-
rect pointing logically to the ultimate subject of search, have
always been, and must necessarily always be, essential instru-
ments in the administration of justice, and when established
as they all should be, with the same degree of certainty as the
ultimate fact is required to be established, they do not fall be-
low, in probative force, direct evidence. One is as competent
Vol. 140 — 8
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114 SUPREME COURT OF WISCONSIN". [June
Spick V. State, 140 Wis. 104.
as the other to prove the real subject matter of the inquiry.
From such evidentiary facts we reason inductively. Certain
indicia are known by experience to characterize human ac-
tions. Those concomitant with any particular act being as-
certained with the degree of certainty required as to the main
fact, the latter, we reason logically, must necessarily exist
also. Such process of reasoning goes to the ultimate point of
inquiry with well-nigh, if not quite, the certainty of exact
demonstration. We first conjecture that the subject of search
exists and is discoverable. We prove its concomitant facts
according to human experience and by the illumination thus
produced we dissolve the mist characterizing the conjecture
and bring into definite outlines that which was before hidden.
People V. Kennedy, 32 N. Y. 141. If the picture thus dis-
closed to our view is the only one that can reasonably exist
\mder the circumstances we stamp it, so to speak, as the truth
of the matter to a moral certainty — the highest degree of cer-
tainty attainable in human affairs. People v. Harris, 136
K. Y. 423, 429, 33 K E. 65. So it is said that 'certain laws
of moral conduct operate almost as infallibly as the mechan-
ical laws of the material world.' "
Courts, very properly, in giving instructions in cases of this
sort, say commonly, substantially:
You should not render a verdict of guilty unless after a
careful consideration of all the evidence in every reasonable
aspect, each material circumstance is established beyond a
reasonable doubt and they are unexplainable upon any rea-
sonable hypothesis other than that the accused is guilty; in
other words, imless all material circumstances are consistent
with his guilt, establishing it with such high degree of cer-
tainty as to exclude any reasonable theory that any other per-
son did the deed.
Thus enlarging on the subject is not to be regarded as a
requirement because of any specially inherent infirmity in
circumstantial evidence, but as indicating the care which it
is appropriate and quite becoming for the judge to exercise
in presiding upon so grave an occasion ; as a method of em-
phasizing the rule that an accused ia entitled to go free un-
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Spick V. State, 140 Wis. 104.
less his guilt is established beyond a reasonable doubt, and of
admonishing the jury, on account of the very serious nature
of the consequences that might otherwise follow, to proceed
with great consideration and care, avoiding so far as prac-
ticable all possible danger of giving way at any point to mere
suspicion. After all said, the degree of certainty required
is covered by admonishing the jury that the accused is en-
titled to an acquittal unless guilt is established to their satis-
faction beyond any reasonable doubt
Applying the foregoing to the evidence, it is the opinion of
the court that the incriminating circumstances which the evi-
dence tended to establish suflBciently to make the existence or
nonexistence of each of them a jury question, i. e. sufficiently
to render it competent for the jury to find as to each in favor
of the state beyond a reasonable doubt, made a network
around the accused so complete as to jugtify the jury in find-
ing that it singled him out as the only person concerned, crim-
inally, in the homicide and the one who committed it beyond
any reasonable doubt
Barnes was permitted to testify that the deceased told him
the accused killed his cattle and that, subsequently and be-
fore the homicide, he told the accused he had been so in-
formed, but did not tell him who imparted the information.
There was no direct evidence that the accused, previous to
the homicide, knew the deceased was the informant. The
evidence was permitted to go to the jury, with all the other
evidence in the case bearing on the question of whether there
was any ill feeling between the accused and the deceased, fur-
nishing any motive for the former to do the deed of which he
was accused. In connection with the evidence there was the
circumstance that the deceased was Barnes's foreman — the
one most likely to have investigated respecting the loss of the
-cattle and to have aroused Barnes's suspicion of the accused,
if he did not convey direct information to him, that the latter
was the suspected party, and, further, the circumstance that
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116 SUPREME COURT OF WISCONSIN. [June
Spick V. State, 140 Wis. 104.
the deceased wa8 so circumstanced that the accused when in-
formed by Barnes, as aforesaid, quite likely knew, or strongly
suspected, that the informant was the deceased, and the fur-
ther circumstance, which the jury had a right to believe from
the evidence existed, that the deceased and the accused had
serious trouble shortly before the homicide, trouble that moved
the latter to declare, in effect, a few days after the homicide
that the deceased deserved what he got. There was the fur-
ther circumstance of absence of any reasonable explanation of
such intense feeling of the accused towards the deceased as
to cause him to use such expressions other than knowledge or
belief .on his part that the deceased had become possessed of
the secret as to who killed the cattle and had imparted it to
Barnes. It was in view of the whole situation, including
what has been detailed and other evidentiary suggestive cir-
cumstances bearing on the question of whether the accused be-
fore the homicide knew, or had good reason to and did believe,
that the accused was Barnes's informant, that the evidence
was permitted. It was offered and received, not as evidence
that the accused killed the cattle, but that he had been accused
by the deceased of having done so, and, therefore, had a mo-
tive for the homicide. That was made abimdantly plain to*
the jury at the time the evidence was received and was em-
phasized by what occurred during the argument to the jury.
The district attorney in the course of his address argued
that circumstances indicated that the accused knew before the
homicide that the deceased, and only he, was in possession of
the secret about the shooting of the cattle. That was objected
to, whereupon the district attorney conceded there was no-
direct evidence to that effect, but insisted that it was a legit-
imate deduction to make from the whole evidence that he in
fact did know of it, and that the trouble between him and the
deceased, some time before the homicide, resulted therefrom.
With that explanation the court said, in effect, that he would
permit such theory to be argued to the jury. Thus they must
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3] JANUARY TERM, 1909. 117
fipick V. State, 140 Wis. 104.
have understood, from the district attorney, and the court as
well, that whether the evidence complained of was entitled to
any weight as bearing on the question of motive depended on
whether, from all the circumstances, they concluded that the
accused knew or suspected who had informed on him.
It was certainly competent to show motive of the accused
for the homicide. Motive is not essential in such a case, but
presence or absence of it is an evidentiary circumstance bear-
ing, with more or less weight according to circumstances, on
the question of guilt. In a case resting, as this does, wholly
on circumstantial evidence, presence or absence of motive may
well be the deciding factor. So if the evidence in question
was improper, it was manifestly prejudicially so.
It being proper for the state to show motive for the homi-
cide and by circumstantial evidence, would not the fact, if it
be a fact, that the accused killed the cattle and to his knowl-
edge the deceased knew and had informed Barnes of it, or the
fact, if it be a fact, that the accused knew the deceased be-
lieved and had reported to Barnes that he killed the cattle,
particularly by reason of the character of the accused and the
debauchery inmiediately preceding the homicide, afford some
reasonable explanation of how he might either have conceived
the idea of killing the deceased and lay in wait for him where
he could safely and surely accomplish the homicidal purpose
by shooting from the inside of the house through the screen
at the open window, or had some altercation with him about
the cattle, preceding or during which the jug of whisky played
a part and was partly emptied by both, or by the accused and,
following that, after the deceased left the house and pro-
ceeded a little distance might have fired at him through the
screen at the open window or in some other way, being so in-
toxicated as not to have a definitely formed design to kill,
have done the fatal deed.
In the situation stated the question presented to the court
on the objection to the evidence was one of competency. In
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118 SUPREME COURT OF WISCONSIN. [Junr
Spick V. State, 140 Wis. 104.
other words, to determine whether the evidence complained
of, under all the circumstances, tended, reasonably, to show
that the accused knew before the homicide that the deceased
was the one who had informed on him, or believed he was the
one. If so, whether the evidence was sufficient to so show,
was for the jury. If it bore legitimately, in any reasonable
view of it, on the question, it was within the field of compe-
tency. That is one of the most difficult situations, in many
cases, which a trial court has to deal with. It involves a ques-
tion of fact and permits of a very wide range of judgment,
reaching to the very boundaries of reason. Hence the rule
that the decision of a trial court on such a question cannot
properly be held wrong on appeal unless it is clearly so, and
whether it is or is not, is to be determined in face of the fact
that a trial judge, ordinarily, is in a much better position than
an appellate court to decide such a matter. It is manifest
that error in such a ruling must appear very plainly from the
written history of the trial to warrant holding that error was
in fact committed. This court has often so held. Emery v.
State, 101 Wis. 627, 648, 78 K W. 145 ; Hupfer v. Nat. D.
Co. 119 Wis. 417, 427, 96 N. W. 809; Kavanaugh v. Wau-
sau, 120 Wis. 611, 618, 98 K W. 550, 553
. In the last case cited the court said :
"The question of competency respecting evidence is always
one of law to be solved by the court." It might well have
been said in connection therewith, underlying it, however, is
the question of fact as to whether the evidence, if admitted,
will tend to prove a fact in issue, or any evidentiary fact.
"If the test to be applied in determining the first question
was whether the evidence, if true, would in the mind of the
trial judge establish the fact in controversy, it is obvious that
the court, in ruling thereon, would often be called upon to
determine questions of credibility and weight. Such is not
the test. If evidence, in the judgment of the trial court., if
true, will tend within reasonable probabilities to e^stabliah
the matter in dispute according to the claim of the party of-
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3] JANUARY TERM, 1900. 11&
Spick V. SUte, 140 Wis. 104.
fering it, and there is a reasonable probability of the truth-
fulness thereof, the true test of competency is satisfied and
the evidence should be admitted. . . . The court's decision in
such matter, following the proper test^ is regarded as a verity
unless manifestly wrong. . . ."
From what has been said it is evident that the learned cir-
cuit judge, in admitting the evidence in question, applied the
proper test. Precedent to the ruling che determined, con-
siderately, in view of all the circumstances, the matter of fact
involved in favor of the state, which required him to rule, as
matter of law, to admit the evidence. Was the ruling on the
matter of fact wrong, especially in view of the whole evi-
dence as it stood when the case was submitted to the jury ?
If it were true that the circumstances were not sufiicient at
the time the ruling was made, — ^were not sufficient to war-
rant, reasonably, the belief that the accused knew before the
homicide, the deceased was the one who had charged him with
killing the cattle, but before the case closed the circumstances
developed were sufficient, — the vice of the ruling was effaced.
After a careful consideration of the case in all its bearings
it is the opinion of the court that the trial judge did not, man-
ifestly, commit error in admitting the evidence complained of.
It was not necessary to show by direct evidence knowledge of
the defendant that the deceased was his accuser. It was as
competent to prove that by circumstantial evidence as it was
to thus prove any other evidentiary circumstance or the main
fact.
It is not often easy to refer to judicial authority support-
ing a situation which is somewhat uncommon, but that does
not, legitimately, suggest doubt as to its propriety where the
principles involved are plain. Cases show merely applica-
tion of principles. New combinations of circumstances call
for new applications of old principles and result in the crea-
tion of new precedents. If courts were to feel lost as to what
to do when out of sight of precedents they would be quite in-
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120 SUPREME COURT OF WISCONSIN. [June
Spick V. State, 140 Wis. 104.
efficient to satisfy fullj their great function as administra-
tors of justice.
The case cited to our attention by the attorney general,
People V. Chin Hane, 108 Cal. 597, 41 Pac. 697, is a very
clear illustration of the principles we have discussed. It is
on all-fours with this case. For the purpose of showing mo-
tive for the homicide, evidence was received, over objection,
that the deceased went upon the bond of a third person who
had been charged by the accused with having attempted to
murder him. The ground of the objection was that there
was no evidence that the accused knew, prior to the homicide,
that .the deceased was instrumental in his assailant's regain-
ing his liberty after being arrested on the charge of attempted
murder. The court, on appeal, said :
"The objection, we think, goes to the weight of the evi-
dence, rather than to its competency. We think it fairly in-
ferable from all the facts and circumstances that he was pos-
sessed of such information, but, if he had no knowledge of
the fact, then the evidence was entirely harmless, and no in-
jury to him could have possibly resulted from its admission.'*
We may well assume that, in making the last remark, the
cause was submitted, as it was here, so the jury must have
understood that the test of whether the evidence complained
of was to be considered, was whether they believed, from all
the circumstances bearing on the question, that the accused
knew, before the homicide, of the act of the deceased which
was offensive to him.
The learned circuit judge said to the jury:
"The evidence of the state tends to prove that defendant is
^lilty of murder in the first degree." But in connection
therewith the court said: "The evidence of the defendant
tends to prove he is not guilty. You must arrive at the truth
from the evidence, and you will be governed by the evidence
alone, in deciding the case. Your especial duty as jurors is
to arrive at the truth from the evidence."
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3] JANUARY TERM, 1909. 121
Spick V. SUte, 140 Wis. 104.
And also said :
"Certain evidence has been introduced here tending to
prove that certain alleged admissions have been made." But
also said in connection therewith : "The rule as to admissions
or confessions is, that such evidence is the weakest kind of
evidence and that such evidence, if taken at all by the jury,
should be taken with great caution, but if the jury is satis-
fied that admissions have been actually made, then they
should give such evidence the weight, when they consider
the whole evidence, that they believe they should receive."
Counsel for the accused selected out of the charge the open-
ing statement on each subject and in that way suggested that
prejudicial errors were committed. We see no reason for the
claim of c^imsel that the court gave undue prominence to
the evidence against the accused over that in his favor or
intimated to the jury, in the slightest degree, what weight
they should give to any of the evidence. There is nothing in
the instruction within the condemnation of anything said in
Ferguson v. Truax, 132 Wis. 478, 491, 110 N. W. 395, 111
N. W. 657, 112 K W. 513, or Till v. State, 132 Wis. 242,
248, 111 N. W. 1109.
There may be a difference of opinion as to the best way to
refer to the fact that there is evidence to carry the question
involved in such a case to the jury, and whether it is best to
specifically refer to it at all. But, certainly, any man of
sufficient intelligence to perform, properly, jury duty must
know, in case of submission to him to find facts from conflicts
ing evidence and inferences therefrom, that in one aspect it
is supposed such evidence will admit of a finding one way
and in another in a different way. Otherwise there would
be no jury question to be solved. It is a common way for a
trial judge to say, in terms or effect, there is evidence tend-
ing to support the claim of one side and evidence tending to
support the claim of the other ; it is your particular duty to
reconcile the conflict and find the truth. And, certainly,
there is at least no harmful error in such common method of
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122 SUPREME COURT OF WISCONSIK [JuNir
Spick V. State, 140 Wis. 104.
submitting a cause, though the way of stating the matter best
calculated to avoid giving the jury any idea of a judicial pur-
pose to intimate what weight should be given to the evidence
upon either side of any controverted matter admits of con-
siderable difference of opinion. In that field trial judgea
do, and should, have a large measure of discretion.
The second part of the instruction above quoted, if faulty
at all, is too favorable to the accused. We will not discuss
that part of the charge but leave it by saying that, perhaps,
the trial judge was a little overcautious in favor of the ac-
cused in some of the language used. It is not thought best
to pass it with such approval as to suggest use of the same^
language in the same or similar circumstances.
The jury were instructed thus :
"(1) A witness may be impeached by proving that the tes-
timony that he has given is false, or he may be impeached by
proving that he has made statements on material facts dif-
ferent from what he has sworn to in court. (2) You should
not reject the testimony of any witness, without due consid-
eration and reasonable grounds therefor. (3) It is your
duty to consider the interest of the defendant, or any other
witness, if you find that any other witness is interested in
fact, in the result of this trial, as going to the credibility of
such witnesses. (4) If you should find, when you consider
the whole evidence, that the testimony of any witness is false,
it may be your duty to reject the testimony of such witness,
unlei^s it is corroborated by some credible evidenca"
In addition to this and entirely separate from it the court
gave correctly the rule on the subject of falsus in unOj faisus
in omnibus.
It is strenuously argued that the first period, which was
segregated from its context for the purpose of an exception,
is erroneous and condemned in Colbert v. State, 125 Wis.
423, 104 N. W. 61. We fail to find any such instruction
in that case. The one condemned was entirely different.
The one here is the same as was given in Miller v. State, 139
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3] JANUARY TERM, 1909. 12*
Spick V. State, 140 Wis. 104.
Wig. 67, 119 N". W. 850. We advise against using language
so liable to be challenged as erroneous. It was not given in
this case and was not in the former with intent to state the
rule of faUus in uno, falsus in omnihus, for that was given,
as before indicated, in another and quite different part of
the charge.
True, a witness may be impeached by proving that his tes-
timony is false. A jury need not be told th^t ; it is so self-
evident. True, also, a witness may be impeached by proving
statemeaitB made by him out of court are inconsistent or con-
tradictory of those made under oath in court. Those methods
of impeachment are laid down in all elementary w<5rks on
evidence. Jones, Ev. § 847 ; Greenl. Ev. § 461 ; Taylor, Ev.
§ 1470. So that part of the charge excepted to, by itself, is
faultless. But why was it followed by the statement, "If
you find, when you consider the whole evidence, that the tes-
timony of any witness is false, it may be your duty to reject
the testimony of such witness, unless it is corroborated by
some credible evidence ? " Why was it suggested to the jury
that they had discretion whether to reject or give weight to
testimony believed by them to be false? Of course, they
must reject such testimony. And why was feasibility of cor-
roborating utterly false testimony by credible evidence so as
to render the former worthy of being given credence in dis-
covering the truth, suggested? As said in the Miller Case,
rejection of testimony of a witness believed to be false does
not fall within the principle as to permissible rejection of
all of a witness's evidence because of some material part of
it being wilfully false. The improper use of the word "may"
and the improper addition of the words respecting corrobora-
tion, led counsel to conclude here, as it did before, that the
language of the court was an erroneous statement of the rule
of falsiis in uno, felsus in omnihus. The improper addition
made the whole involved in such absurdity, as said in the
Miller Case, that no sensible juror could reasonably have
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124 SUPKEME COURT OF WISCONSIK [June
Spick V. State, 140 Wis. 104.
been misled by it. The very existence of testimony believed
upon a consideration of the whole evidence to be untrue, ex-
cludes, utterly, any possibility of there being corroborating
evidence entitling the false evidence to credence. The- fabled
Cassio, in his misfortune, though uncertain which was his
right and which was his left hand, yet appreciated that nei-
llier could be both.
The jury were instructed that:
"The burden of proof rests upon the state from the be-
ginning to the end of the trial, and defendant, when placed
upon his trial, was presumed to be innocent"
We see no error in that. The better way is to say, in con-
nection with what was said: Such presumption continues
from the banning to tlie end of the trial and entitles the
accused to an acquittal, unless overcome by evidence estab-
lishing his guilt, to the satisfaction of the jury beyond a rea-
sonable doubt. Emery v. State, 101 Wis. 627, 78 N. W. 146.
But the language used seems to mean that, with sufficient
clearness to leave the accused without reason to complain,
since no more plainly worded rule was requested.
It is urged that in no event can the conviction properly
stand because the accused was, manifestly, guilty of murder
in the first degree or not guilty; that there is no reasonable
ground in the evidence for belief in a killing by the accused
without design to produce that result The border line be-
tween murder in the first degree and murder in the second
degree is very plain in statutory characterization, but whether
it is one or the other is often very difficult of determination
on the evidence. So it has been said that if the jury, in any
given case, conclude from the evidence that the accused is
guilty beyond a reasonable doubt of either one or the other
of two offenses, and they are not wholly convinced that it is
the greater, they should find a verdict of guilty of the lesser.
Eyan v. State, 115 Wis. 488, 92 N. W. 271 ; Miller v. State,
139 Wis. 57, 81, 119 N. W. 850, 860.
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3] JANUAKY TERM, 1909. 125
Spick V. State, 140 Wis. 104.
To warrant the jury in rendering the verdict they should
have come to the conclusion upon evidence rendering such
conclusion reasonable that there was at least a reasonable
doubt as to whether the accused was guilty of the highest
homicidal offense, but none as to whether he conmiitted an act
imminently dangerous to the deceased, cau&ing his deaths
evincing a depraved mind regardless of human life without
any premeditated design to effect such result. Sec. 4339,
Stats. (1898). There were some circumstances in this case,
seemingly within reason, satisfying that test. Manifestly^
there was the act imminently dangerous to the deceased.
There was plenty of evidence of depravity of mind and dis-
regardfulness of human life. There was proof of the long
debauch, tending to show a condition of inability to form, or
improbability that there was formed, any specific design to
take Lombard's life. There was no evidence of any very
adequate motive to move a man, even one of as low degree
and depraved by liquor as the accused was, to form a wicked
design to take human life. The presence of the jug, which
was full of whisky in the morning, but out of doors nearly
empty immediately after the homiQide, with some indications
that it was in possession of the deceased at the time he was
shot, or that it was in contact with him immediately after-
ward, is not without its significance. There is such a dense
mystery as to just what occurred at the time of the homi-
cide— as to the real characteristics of it, — including the events
immediately preceding the fatal shot, that one might hesi-
tate to say death was, beyond a reasonable doubt, effected pur-
suant to a premeditated design to kill. May not the jury
reasonably have entertained from the evidence a fair doubt
on that question ? Their answer as to that was approved by
the learned trjal judge. It requires a strong case, made
wholly by a written history of a trial, to warrant an appel-
late court in overruling such a decision. It is the opinion
of the court that no such strong case appears here.
The following cases sufficiently point to the last conclusion.
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126 SUPREME COURT OF WISCONSIN. [June
Spick V. State, 140 Wis. 104,
if any support by way of judicial precedents is required:
Clifford V. State, 58 Wis. 477, 17 X. W. 304; Flynn v. State,
97 Wis. 44, 72 N. W. 373; Odette v. State, 90 Wis. 258, 62
N. W. 1054; Eckert v. State, 114 Wis. 160, 89 N. W. 826;
Johman v. State, 129 Wis. 14C, 108 K W. 55. It would
seem that there was more shadowy ground in each of such
cases for believing the accused was guilty of murder in the
second instead of murder in the first d^ree than in this. In
each death was caused by one or more bullets being fired into
a vital part of the body under circumstances indicating some
provocation and some circumstances reasonably causing doubt
as to whether the shot was fired pursuant to a formed de-
sign to effect death, and impairing the presumption of such
design springing from intentional discharge of the firearm
aimed at such vital part.
The next day after the case was submitted to the jury they
requested further instructions and pursuant thereto the court
instructed them at length to the effect that, commonly, the
prosecution, and the defense as well, in the trial of a case
have to resort to circumstantial evidence; that it is a legiti-
mate method of establishing the truth; that justice could not
be otherwise administered; and further instructed them as
to the scope of the term "beyond a reasonable doubt," and
said :
"The evidence which you are compelled to pass upon is not
so complicated and so voluminous and difficult to understand
that a jury should not arrive at the trulli within a reason-
able time."
"I can see no reason, gentlemen, why you should not agree
upon a verdict in this case, and we expect you to do so."
"The real question for you to determine in this case is,
what is in fact the truth."
It is argued that the quoted language contained a pretty
plain intimation that the evidence tended strongly to estab-
lish the guilt of the accused and to impress the jury that they
were under some measure of coercion to find a verdict ac-
<5ordingly, and to do so without much further delay. The
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3] JANUARY TERM, 1909. 127
Spick V. State, 140 Wis. 104.
-opinion here is otherwise. True, as the learned judge said,
the evidence was not voluminous, nor very difficult to un-
derstand. That was manifest to the commonest understand-
ing. But the inferences that might be legitimately drawn
therefrom were left to the jury with scrupulous care. True,
also, it was manifest that there was no very good reason
why the jury should not reach a conclusion within a reason-
able time. No suggestion was made to them that they had
deliberated an imreasonable time or how much additional
time would be reasonable before coming to a conclusion one
way or the other. That was left wholly to them.
It is not infrequent that jurors fail to fully realize their
high duty to reason with each other, to compare opinions,
and to each be considerate of the views of his fellows, lead-
ing to undue hesitation in reaching a verdict or failure to
reach one at all. Wise judicial supervision of a trial, in
that regard, is necessary and is none too often exercised.
Manifestly, the court should be mindful of where that duty
ends and the duty of the jury begins so that an attempt to
discharge the former will not invade the latter. The trial
judge in his legitimate field has very broad discretion, and
it needs a pretty plain case of prejudicial overstepping of
it to warrant condemning the result as tainted with harmful
error. Odette v. State, 90 Wis. 258, 264, 62 N. W. 1054.
The jury in this case must be presumed to have been men
of ordinary intelligence. As such they probably under-
stood from what the court said that a verdict of acquittal or
guilty would be received without judicial question of its cor-
rectness.
The language complained of was certainly as faultless as
that used in Schwantes v. State, 127 Wis. 160, 191, 106
K W. 237, or that used in Odette v. State, 90 Wis. 258, 263,
62 N. W. 1054, where the court, among other things, admon-
ished the jury that it was their duty to harmonize the evi-
dence if possible; that they ought not to stand back obsti-
nately, "but should reason together and talk over the exist-
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128 SUPREME COXJET OF WISCONSIN. [Junr
Spick V. State, 140 Wis. 104.
ing differences, if any;^' "that it was their duty to meet the-
testimony in a spirit of fairness and candor with each other;''
"to reason together and apply the law as given by the court
to the facts in the case, and arrive at some kind of a verdict/'^
That was quite as strong as, "I can see no reason, gentle-
men, why you should not agree upon a verdict in this case,
and we expect you to." "Render a just verdict," said the
court, "without being influenced by prejudice, passion, fear,
or favor, and then you will have done your duty to the de-
fendant, to yourselves, and to society." That expression and
others in the charge must be looked at in determining whether
the jury in any reasonable probability were improperly in-
fluenced by the language complained of. It is the opinion
of the court that the trial judge was well within his proper
field in using such language.
There are two or three other points, briefly presented in
the printed argument, but they do not seem to be of sufficient
moment to warrant extending this already quite lengthy opin-
ion for the purpose of discussing them. The accused seems
to have had a very fair trial and to have been ably defended
by a member of the bar appointed for that purpose. The
record is exceptionally free from error, and wholly free from
harmful error. All of the instrumentalities of the law of
the land have been gratuitously at the disposal of the accused
to safeguard him against being convicted unjustly. The
law has run its full course, and he has had all the advan-
tages he could have had, had he been of high degree and pos-
sessed of wealth. If he has been unjustly convicted, which
is highly improbable, it is one of the inevitable individual
sacrifices for the good of the whole which must, now and
then, be the result of any system of law of human origin.
By the Court. — ^The judgment is affirmed.
Dodge, J. {dissenting). I am reasonably satisfied that,
with one exception, all the assignments of error might faiV
of fatal eflFoct upon the conviction, though not always upon
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3] JANUAKY TERM, 1909. 129
Spick V. State, 140 Wis. 104.
the grounds stated in the opinion of the court. There is one,
however, which seems to me glaringly erroneous and unavoid-
ably prejudicial. Barnes wap permitted to testify, in sub-
stance: "I was informed, before the homicide, that Spick
killed some of my cattle. Boni Lombard informed me."
So far as this tended to arouse belief in the jury that de-
fendant, at some remote period, had been guilty of killing
cattle, it was mere vilification, and a most unworthy and im-
proper method of prejudicing the accused, in a case of much
doubt as to whether he was the person who among all the
vicinage committed the obvious homicide. Paulson v. State,
118 Wis. 89, 94 N. W. 771. Conceding, however, as my
brethren think, that no such improper purpose moved the
introduction of the evidence, and that its sole purpose was
to prove animosity in defendant toward deceased either as an
informer against him or as the custodian of his guilty se-
cret, the error and prejudice are no less clear. Then the only
possible material facts are that accused knew or suspected
that Lombard had the knowledge or had given the informa-
tion. But there is no word of evidence that accused either
knew or had any ground of suspicion of such facts. The
only ground suggested by the prosecution, or in the court's
opinion, is that his own guilty consciousness would lead him
to such suspicion. But this leaps the very gap which I think
insuperable. He could have no such consciousness unless he
in fact killed the cattle. That he did so there is absolutely
no evidence, except the objectionable testimony of Barnes
that Lombard told the latter so — pure hearsay and there-
fore necessarily inadmissible. O'Toole v. State, 105 Wis.
18, 80 K W. 915; Campbell v. State, 111 Wis. 152, 160, 86
N. W. 855; Baker v. State, 120 Wis. 135, 149, 97 N. W.
566.
The argument in the court's opinion that admissibility of
hearsay evidence may sometimes be sustained by peculiar
facts, as to which great deference is due the trial court's de-
cision, is met, primarily, by the circumstances that there
Vol 140—9
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130 SUPREME COUET OF WISCONSIN. [June
Spick V. State, 140 Wis. 104.
were neither facts nor evidence for the judicial mind to act
on to justify hearsay testimony of the only facts from which
animosity against the accused, or desire to put him out of
existence, could be inferred. Another obstacle to the effi-
cacy of such argument is, however, that the trial court made
no such decision, as the record affirmatively discloses. He
admitted the objectionable testimony, not on any circum-
stances thought to justify hearsay, but on the ground that
"it is allowable to prove additional crimes . . . sometimes
to show motive/' That, however, has no relation to remote
crimes, not connected with the one charged, and so dissimilar
as to have no tendency to evince persistent similar special
intent. Killing A.'s cattle years before has no tendency to
prove the special intent in killing B. ; nor is it admissible in
proof of motive. Baker v. State, 120 Wis. 135, 145, 97
N. W. 566; Standard Mfg. Co. v. Slot, 121 Wis- 14, 19, 98
N. W. 923, 1016; People v. Molineux, 168 N. T. 264, 297,
61 N. E. 286. Thus the trial court has conclusively certified
that he in fact proceeded upon an erroneous conception of law,
and has excluded the palliation for his admission of this evi-
dence so laboriously invented in the opinion of the court.
I cannot avoid the conclusion that in the respect men-
tioned error was committed, obviously prejudicial to accused,
and must dissent from the affirmance of the conviction.
WiNSLOw, C. J,, concurs in the foregoing dissenting
opinion.
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3] JANUARY TERM, 1909, 131
Prinalow v. State, 140 Wis. 131.
Prinslow, Plaintiff in error, vs. The State, Defendant in
error.
May 15— June S, 1909.
Embezzlewent of money: Evidence: Variance: Demand, tohen nec-
essary: New trial: Supreme court,
1. There is no material variance between an information charging
embezzlement of sixty dollars in money and proof that defend-
ant received a check. for a larger sum in pa3rment of sixty dol-
lars upon a debt to a corporation of which he was president;
that he paid the difference to the debtor and deposited the
check in a bank in his own name; and that he afterwards drew
the money from the bank.
2. Proof of a demand for money alleged to have been embezzled
is necessary only where a demand is necessary to show the
fraudulent conversion embraced in the offense.
3. Sec 4719, Stats. (1898), vests in the supreme court a broad and
liberal discretion in ordering a new trial in criminal actions
where the justice of the case demands.
4. A new trial is directed by the supreme court although it had
been denied by the trial court, in a prosecution for embezzle-
ment, where the only evidence of fraudulent conversion was
defendant's failure to report the collection of money for a cor-
poration of which he was president, and it appeared that
shortly after he collected it he applied the money, together with
some of his own, upon an obligation of the company, and evi-
dence discovered after the trial would have tended to prove
that at the time in guestion the corporation was largely in-
debted to him.
Ebbob to review a judgment of the circuit court for Fond
<iu Lac county : Chestee A. Fowleb, Circuit Judge. Re-
versed.
The plaintiff in error, F. 0. Prinslow, hereinafter called
defendant, was tried in the circuit court for Fond du Lac
county upon an information charging him with having on
the 24th day of November, 1906, in the coimty of Fond du
Lac, embezzled $60 in money, the property of the Prinslow
& Watson Implement Company, a domestic corporation.
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132 SUPREME COURT OE WISCONSIN. [June
Prinelow v. State, 140 Wis. 131.
whose principal office was in the city of Fond du Lac, in
said county. The jifry returned a verdict of guilty in the
manner and form charged in the information. Motions
were made in arrest of judgment and for a new trial, which
were denied, and the defendant sentenced to be punished by
payment of a fine of $160, together with costs of prosecu-
tion, and in default of payment to be imprisoned in the
county jail of Fond du Lac county until said fine and costs
be paid, not to exceed a period of six months.
Among other grounds for a new trial is assigned newly dis-
covered evidence, and several affidavits were used upon the
motion tending to show that at the time of the alleged em-
bezzlement the Prinslow & Watson Implement Company was
indebted to the defendant in a large sum of money; that
upon an account stated between defendant and the Prins-
low & Watson Implement Company covering a period from
July 3, 1906, to and including January 5, 1907, said ac-
count showed a balance in favor of defendant against said
company of $2,628.07; that on the 9th day of February,
1907, a trustee in bankruptcy of defendant was duly ap-
pointed and an action brought by said trustee against the
Prinslow & Watson Implement Company to recover the sum
of $2,628.07, and said action settled by the payment of $100
to the trustee on December 14, 1907, and that it was insisted
and claimed in said action that the Prinslow & Watson Im-
plement Company was indebted to the defendant at the time
he was adjudged a bankrupt in the sum of $2,628.07, but
that it was believed said company was insolvent and that a
judgment against it could not be collected, and therefore a
settlement was made for $100. It further appears from
the affidavits that during the period from July 3, 1906, to
January 5, 1907, the defendant was not indebted to said
company in any sum upon settlement of accounts between
them. Other facts are set up in the affidavits tending to
show that due diligence was used to discover the facts in ref-
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3] JANUARY TERM, 1909. 133
Prinslow V. State, 140 Wis. 131.
erence to said indebtedness and condition of accounts between
defendant and said Prinslow & Watson Implement Company,
and also with reference to the suit brought by the trustee in
bankruptcy of the defendant against said Prinslow & Wat-
son Implement Company, but that at the time of trial de-
fendant and his counsel were wholly ignorant of these facts
and did not discover them until after verdict. The aflSdavits
further show that defendant was a man of very little educa-
tion, had no knowledge of bookkeeping, and had nothing
whatever to do with the keeping of the books of the Prinslow
& Watson Implement Company, and that none of the entries
were made by him ; that the newly discovered evidence would
have had controlling influence upon the jury, strongly tend-
ing to produce a verdict of not guilty.
Execution was stayed, and defendant removed the record
here by writ of error.
Maurice McKenna, for the plaintiff in error.
For the defendant in error there was a brief by the Attor-
ney Oeneral and F. T, Tucker, assistant attorney general,
and oral argument by Mr. Tucker.
Kerwin, J, The defendant at the time of trial was a mar-
ried man, thirty-seven years of age, bom in Fond du Lac
coimty, Wisconsin, where he had lived all his life. He seems
to have borne a good reputation, at least up to about the time
of the alleged offense. The Prinslow & Watson Implement
Company named in the information was incorporated in
July, 1906, August Prinslow being vice-president, J. N. Wat-
son secretary and treasurer, and the defendant president,
which office he held until January 3, 1907, at which time he
was forced into voluntary bankruptcy.
1. It is first assigned as error that the proof does not sup-
port the charge. The information charged the embezzle-
ment of $60 in money, and it is claimed that the proof was
predicated upon the receipt by the defendant and conversion
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134 SUPREME COXJET OF WISCONSIN. [Junk
Prinelow v. State, 140 Wis. 131.
of what was known as a "milk check" for the sum of $68.93^
drawn by one Peter Stephany to the order of one J. P.
Bierschbach. This check was delivered to the defendant in
payment of $60 upon an indebtedness of the holder of the
check to the Prinslow & Watson Implement Company, the
defendant paying the balance of the amount of the check,
^ $8.93, to the holder. The defendant then deposited the milk
check in the bank and received the value of it, $68.93, so
that.he did in fact shortly after receipt of the check get into
his possession the value of the check, and, if he was guilty of
embezzlement by the transaction, he embezzled the money to
the amount of $60, proceeds of the check, less the $8.93 paid
by him to the holder. Before the check was cashed by the
defendant he had an interest in it to the extent of $8.93 and
the corporation $60. The defendant deposited the check in
his own name with other money, and during the month drew
the money out of the bank. He admits that he had the $60
and paid it upon a check for $100.73 drawn by the company,
paying the balance of the check, $40.73, out of his own
money. It is clear, we think, that there was no material
variance between the information and the proof, because
upon the evidence, if any embezzlement were committed, it
was under the proof an embezzlement of money. Secor v.
State, 118 Wis. 621, 95 N. W. 942 ; Comm. v. Oateley, 126
Mass. 52 -PeopZc v. Ilanaw, 107 Mich. 337, 65 K W. 231.
2. Error is assigned because no demand was shown for
the money alleged to have been embezzled. The crime of
embezzlement embraces the fraudulent conversion of the
property embezzled, and where it is necessary to make a de-
mand in order to establish a conversion a demand is neces-
sary. Sec. 4418, Stats. (1898) ; KossakowsJci v. People, 177
111. 563, 53 N. E. 115 ; Fitzgerald y. State, 50 N. J. Law,
475, 14 Atl. 746 ; State v. Reynolds, 65 N. J. Law, 424,' 47
Atl. 644; Secor v. State, 118 Wis. 621, 95 N. W. 942; Dix
V. State, 89 Wis. 250, 61 N. W. 760 ; State v, Heiden, 139
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3] JANUARY TERM, 1909. 135
Prinslow v. State, 140 Wis. 131.
Wis. 519, 121 K W. 138. Sec. 4419, Stats. (1898), which
makes "the refusal or wilful neglect of any oflScer or other
person" to pay over money prima facie evidence of the em-
bezzlement thereof, is relied upon by the plaintiff. This
statute manifestly has reference to cases where a demand is
necessary, and in that event the statute makes the demand
only prima facie evidence of embezzlement, leaving the ques-
tion of fraudulent conversion and proof respecting embezzle-
ment undisturbed in cases where no demand has been made.
It is the fraudulent conversion of the money that constitutes
the offense, and that may be proved without a demand.
People V. Ward, 134 Cal. 301, 66 Pac. 372 ; Wallw v. State,
54 Ark. 611, 16 S. W. 821.
3. Error is also assigned on refusal of motion for a new
trial. Aside from the newly discovered evidence set up in
the motion for a new trial, the evidence of embezzlement is
exceedingly weak. Practically the only evidence upon the
question of fraudulent conversion is the failure to report
the collection of the $60, which failure was explained by the
defendant. Moreover, the evidence shows that the defendant
was endeavoring to meet the obligation of the company, which
at the time was in a rather straitened financial condition.
He applied the $60 collected on an obligation of the company
shortly after he collected it, together with $40.73 of his own
money. Besides, had the newly discovered evidence been
before the jury, it would at least have strongly tended to
prove that at the time of the alleged embezzlement the Prins-
low & Watson Implement Company was indebted to the de-
fendant on account in a large amount, and under such cir-
cumstances, together with the other evidence, it is diflScult
to see how the jury could have convicted the defendant. We
therefore think that upon the whole record the court below
should have granted a new trial. Sec. 4719, Stats. (1898),
provides that the circuit court may grant a new trial ^*for
any cause for which by law a new trial may be granted or
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136 SUPREME COUET OF WISCONSIN. [June
Prinslow v. State, 140 Wia. 131,
when it shall appear to the court that justice has not been
done, and on such terms and conditions as the court may di-
rect." This section further provides :
"When an application for a new trial under this section
shall be refused a writ of error shall, on the application of
the defendant, be issued from the supreme court to bring such
matter before it ; and upon such writ the supreme court shall
have the power to review the order refusing to grant a new
trial and render such judgment thereon as it may deem
proper."
This statute vests in this court a broad and liberal dis-
cretion in ordering a new trial when the justice of the case
demands. In Lonergan v. State, 111 Wis. 453, 456, 87 N. W.
455, 456, this court said:
"In criminal cases, and especially in a prosecution for a
capital offense, the defendant has a clear right to have his
guilt determined by the court as well as by the jury. *If the
verdict does not satisfy the conscience of the judge, the pris-
oner is entitled to a new trial.' The accused has the right
to have 'the solemn opinion of the judge who tried the cause,
after a careful hearing of all that may be alleged against ita
justice, that it ought to stand.' Ohms v. Stale, 49 Wis. 415,
5 N. W. 827. Not only has he this right to the solemn judg-
ment of the trial judge, but he has also the right upon writ of
error, if the question is properly presented by the record, to
•demand the deliberate opinion and judgment of this court
upon the question whether his guilt was sufficiently proven."
Error is assigned upon the charge. As to whether or not
there is reversible error in the charge the members of this
court are not agreed. Since the question presented under
this head is not likely to arise upon another trial, we shall re-
frain from discussing it. We are of opinion that justice de-
mands that a new trial should be granted.
By the Court. — ^The judgment is reversed, and the cause
remanded for a new trial.
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3] JANUAKT TERM, 1909. 137
Markley v. State, 140 Wis. 137.
Ma£exst, Plaintiff in error, vs. The State, Defendant in
error.
May 15— June 5. 1909.
IntoxicoHnff Uquon: Sale toithout license: Evidence: Reading to
jury: Consent.
1. A conviction of selling Intoxicating liquors without a license is
held to be sustained by the evidence in this case.
2. After retiring, the Jury returned into court announcing a dis-
agreement upon a certain point Counsel for the defendant sug-
gested that the testimony of the complaining witness on that
point was undisputed and consented that it be read, but, after
the court had ordered it read, asked to have all the other evi-
dence read, and on refusal thereof by the court objected to the
reading of the testimony first mentioned. Held, that it was not
error to permit the reading of such testimony, counsel for de-
fendant having himself invited it
Ebbob to review a judgment of the circuit court for Rich-
land county: Qsoboe Clementson, Circuit Judge. Af-
firmed,
L. H. Bancroft, for the plaintiff in error.
For the defendant in error the cause was submitted on the
brief of the Attorney General and A. C. Titua, assistant at-
torney generaL
Timlin, J. The plaintiff in error contends that the ver-
dict is contrary to the evidence given upon the trial, and that
the court erred in its instructions to the jury and in per-
mitting the court reporter to read to the jury from his notes
the testimony of the complaining witness. The plaintiff in
error was charged with having, on August 30, 1908, sold in-
toxicating liquors and drinks to one Thomas Mead without
having first obtained a license. The evidence on the part of
the state consisted of an admission by the plaintiff in error
that he had no license, and the testimony of Thomas Mead,
a boy sixteen years old, to the effect that he was at the place
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138 SUPKEME COURT OF WISCONSIN. [June
Markley v. State, 140 Wis. 137.
in question, which was formerly and up to about July 7,
1908, a licensed saloon, at three different times on August
30, 1908; once in the forenoon about 10 o'clock and once
about noon, and the third time in the afternoon. At this
third visit, which was on his return from a baseball game, he
claims to have received from plaintiff in error a drink and
alsp a half pint of whisky. His testimony is somewhat un-
certain.. In one place he testifies that he called for a half a
pint of Ked Top whisky right in the presence of Adam Mark-
ley, Robert Ferguson, and Perry Poole. Inunediately in
connection with this he testifies :
"I told Jim, and Jim told Ad. Jim and I walked up from
the ball game. Jim Markley he and I walked up from the
ball game together, and I told him as I walked up that I
wanted it. I told him that I wanted a half pint of Red Top
whisky before we got to the building. I didn't call for any-
thing in the building. He told his father and he gave it to
me. He whispered it to his father over the bar. Jim Mark-
ley was there at the same time Ferguson and Poole was. He
went right on through the building. That was after I had
this drink. Ad Markley filled up the bottle and gave it to
me after Jim whispered to him.''
The witness testified that after this purchase he went
toward the river, where there were boys swimming, and the
evidence is not disputed that he had a bottle of whisky in his
pocket at this swiroming place, which some of the boys took
out of his pocket and carried to a justice of the peace. The
sheriff searched the premises in question a day or two after,
and the only intoxicating liquor he found in the place was a
keg of port wine, which had been tapped, and another keg
of blackberry brandy, which had not been opened. The
plaintiff in error denied the sale to the complaining witness,
stating that there was nothing in the saloon room but cherry
cider and orange cider and red and white pop and ginger
ale and raspberry on the day of the alleged sale to the com-
plaining witness. He came from his home to the saloon
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3] JANUARY TERM, 1909. 13^
Markley v. State, 140 Wis. 137.
building, about 9 o'clock on the day in question and remained
there perhaps three or four hours, and his son, James Mark-
ley, Bob Ferguson, and Perry Poole were also there. He de-
nied that James Markley whispered to him over the bar and
denied selling or giving any intoxicating liquor to the com-
plaining witness. James Markley testified to the same ef-
fect, and added that he did not see the complaining witness
in the saloon on Sunday afternoon, that Bob Ferguson and
Perry Poole drank temperance drinks there that day, and
that he was down to the ball game and returned from the
game with the complaining witness, but the latter did not
stop at the saloon building; did not go inside. Clark Weller
saw complaining witness around the saloon building almost
all day, but he did not come in more than once, but this wit-
ness was not in the saloon in the afternoon. Adam Markley,
recalled, testified that he was not in his place of business at
all on the day in question after the ball game started. Perry
Poole testified that he was in this saloon building on the 30th
of August for a few minutes with Bob Ferguson and he got
something to drink; got what they called for, cherry cider.
This was before the ball game, and he was not in the place
after the ball game. Robert Ferguson was not in the place
after the ball game. •
This is the substance of the testimony. Counsel for plaint-
iff in error places great stress on the testimony of the com-
plaining witness to the effect that Ferguson and Poole were
in the saloon building when he bought this bottle of whisky,
and assumes this is a very damaging statement. We do not
share in this view of the evidence. At one of the three visits
of the complaining witness in the saloon on tliat day these
two men were present, and the jury might well have found
that the complaining witness was mistaken as to which time.
There is no doubt a question of veracity between the com-
plaining witness on one side and the two Markleys on the
other, but that was for the jury imder all circumstances.
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140 SUPKEME COURT OF WISCONSIN. [June
Markley v. Sute, 140 Wis. 137.
After the jury had retired and had been some time in de-
liberation they returned into court and annotmced that they
had not agreed upon a verdict, and reported that the disagree-
ment was concerning the time of day at which the unlawful
sale was supposed to have been made. The court indulged in
some comments to the effect that his own memory was uncer-
tain in that respect, and the counsel for plaintiff in error sug-
gested thaj the imdisputed evidence on the part of the com-
plainant was that he bought the liquor at his third visit to
the saloon building in the afternoon, after coming from the
ball game, and consented that "the testimony should be read."
The court thereupon ordered the reporter to read the testi-
mony of the complaining witness. Counsel for plaintiff in
error requested the court to "permit the other evidence to be
read.*' The court answered: "No; I will not. You said
the testimony of that boy was undisputed. I do not recall
that the boy said that this whisky was got after the ball game,
but I did not want to say so before. Now you may read the
testimony." Defendant objected to the reading of such tes-
timony. The testimony of Thomas Mead was again read to
the jury by the reporter. We see no error in this proceed-
ing, and we think that counsel for the accused himself in-
vited the reading of the testimony. ^
Finding no reversible error in the record the judgment
,should be afllrmed.
By the Court. — Judgment affirmed.
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3]. JANUARY TERM, 1909. 141
Lundstrnm v. State, 140 Wis. 141.
Luin)STBTJic, Plaintiff in error, vs. The Statu, Defendant in
error.
May IS—June 5, 1909.
Habeas corpus: Review of evidence on preliminary examination:
Complainant need not he examined: Directory statute: Con-
fesaion.
!• In a proceeding by habeas corpus to procure the discharge of
one held for trial after a preliminary examination, the court
can only examine the evidence sufficiently to discover whether
there was any substantial ground for the exercise of Judgment
by the committing magistrate.
2. A legal preliminary examination may be had without calling the
complainant as a witness, the provision in sec 4786, Stats.
(1898), that the magistrate shall examine him being directory
merely.
3. A confession of guilt by the accused may be received and con-
sidered by the examining magistrate in connection with other
evidence as tending to prove that an offense has been com-
mitted and that there Is probable cause to believe the accused
guilty thereof.
4. The evidence (Including the confession) on the preliminary ex-
amination of one charged with murder is held sufficient to jus-
tify the magistrate in holding her for trial.
EsBOB to Teview an order of the circuit court for Milwau-
kee county : Oeken T. Williams, Circuit Judge. Affirmed.
Plaintiff in error. Alberta Lundstrum, was charged with
having murdered one Otto E. Lundstrum. The order sought
to be reviewed was one made in habeas corpus proceedings,
and remanded her to her former imprisonment under the
commitment by an examining magistrate.
For the plaintiff in error there was a brief by Rubin £ Zor
bel, and oral argument by W. B, Rubin.
For the defendant in error there was a brief signed by
A. C. Bdckus, district attorney, and Carl Muskat, assistant
district attorney, and oral argument by Mr. Muskat.
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142 SUPREME COURT OF WISCONSIN. [June
Lundstrum v. State, 140 Wis. 141.
Babnes, J. The plaintiflF in error was arrested on a
charge of murder in the first degree. A preliminary exami-
nation resulted in her being held for trial without bail. She
seeks discharge from custody by habeas corpus proceedings on
the ground that she was not legally committed. The follow-
ing reasons are urged in support of her contention: (1) There
was no legal preliminary examination because the complain-
ing witness was not sworn thereat; (2) the evidence offered
at such examination failed to establish the fact that a crime
had been committed; and (3) an alleged confession of the
accused was improperly received for the purpose of establish-
ing the fact that a crime had been committed, and, excluding
such alleged confession, the evidence offered was wholly in-
adequate to show the commission of a crime, or that there was
probable cause to believe that the accused was guilty of an
offense.
In the proceeding before us this court can only examine the
evidence sufficiently to discover whether there was any sub-
stantial ground for the exercise of judgment by the commit-
ting magistrate. If there was, relief must be denied. We
cannot weigh the evidence to determine whether this court
would reach the same or a different conclusion. State ex rel.
Duimer v. Euegin, 110 Wis. 189, 235, 85 N. W. 1046.
1. The contention that the plaintiff in error has not had
a legal preliminary hearing because the complaining witness
was not called to testify is untenable. This question was be-
fore this court in EmeTy v. State, 92 Wis. 146, 154, 65 N. W.
848, and it was there decided that the provision of sec. 4786,
Stats. (1898), requiring the magistrate holding a prelimi-
nary examination to examine the complainant, was directory
only, and that a legal examination could be had without call-
ing such party as a witness. We feel no hesitancy in say-
ing that the case was correctly decided.
2. We do not decide in this case that the fact that a crime
has been committed may not be established on a preliminary
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3] JANUARY TERM, 1909. 143
Landatruin ▼. State, 140 Wia. 141.
examination solely by evidence of a confession of guilt by the
accused of the crime with which he has been charged. Some
courts hold that a confession is not sufficient in itself to show
the commission of an offense; We entertain no doubt that
a confession may be received and considered by the exam-
ining magistrate in connection with other evidence as proof
tending to show that an offense has been committed and that
there is probable cause to believe the accused guilty thereof.
12 Cyc 311; People v. Cokahnour, 120 Cal. 253, 52 Pac.
505; U. S. V. Bloomgart, 2 Ben. 356, Fed. Cas. No. 14,612.
The case of Ex parte Patterson, 50 Tex. Crim. 271, 95 S. W.
1061, relied on by counsel for plaintiff in error, recognizes
the rule that a "confession may be used to assist in making
out the corpus delicti,"
3. It was clearly established that the decedent met his
death as the result of gunshot wounds, and the only question
upon which there could be any doubt was whether the evi-
dence was sufficient to negative the idea that they might have
been self-inflicted. The evidence showed that one of the
wounds was almost instantly fatal, the pulmonary artery hav-
ing been severed. The inference, to say the least, was quite
strong that the other wound was made after the fatal shot
was fired. It was in a position and the ball followed a di-
rection that would almost conclusively demonstrate that the
party who discharged the gun was not trying to commit sui-
cide. Perhaps it would not be impossible for a suicide to
discharge the revolver in the way in which it must have been
discharged in order to produce the wound, but it would cer-
tainly be very improbable. The accused was found in the
Toom with the deceased almost immediately after the shots
were fired. She stated that he shot himself. When asked
where the revolver was, she said she did not know, and it re-
<iuired considerable searching on the part of the police officers
to find it; it being finally located behind a door, where it was
•evidently placed by some one aside from the deceased. In
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144 SUPKEME COURT OF WISCONSIN. [June
Lundstnim y. State, 140 Wis. 141.
addition to this, a week after the homicide the accused stated
to an apparently disinterested person, without any sugges-
tion on his part : "Just think, a week ago today at this time
I shot Otto." The first name of the decedent was Otto. Un-
explained, this statement would naturally be understood ta
refer only to Otto LimdstrunL Taking all of these facts inta
account, and bearing in mind the rule that this court can
only examine the evidence suflSciently to discover whether
there was any substantial ground for the exercise of judg-
ment by the committing magistrate, we must hold that the
order of the circuit court refusing to discharge the prisoner
should be affirmed.
By the Court. — Order affirmed.
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CASES DETERMINED
AT THB
August Term, 1909.
State ex bbl. Nobthebw Pacific Eailway Company, Ap-
pellant, vs. Kailboad Commission of Wisconsin and
others^ Bespondents.
March 91 — October 5, 1909.
Hatlroads: PotoerB of RaUroad Commission: Statutes construed:
Crossing of tracks: Fixing place: Safety devices: Apportion-
ment of expense: Condemnation proceedings: Compensation to
senior road, whcft to include: Constitutional law: Power to
amend charters: Tested property rights: Police power: Delegth
tion of legislative power: Judici<a power: Review of orders of
Railroad Commission.
1. Ch. 454, Laws of 1907, and particularly sec 1797— 56, Stats., Testa
In the Railroad Commission power to determine the point at
which, as well as the manner in which, the track of one rail-
road shall be crossed by that of another; and the question of
compensation only Is left to the commissioners appointed by
the court under subd. 6, sec. 1828, Stats. (1898).
2. The law as it before existed respecting the right of a railroad
company to designate its route was not abrogated by ch. 454,
Laws of 1907.
3. The power of the state to alter or repeal existing charters of
corporations cannot be used to take away property or rights
which have become vested under a legitimate exercise of the
powers granted by a charter.
4. A railway company which constructed its road while a statute
(subd. 6, sec 1828, Stats. 1898) was in force under which, as
at common law, it could not be required to pay any part of the
expense of making and maintaining any subsequent crossing
of its track by the track of another railway, acquired thereby
Vol. 140 — 10
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146 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Northern Pac. R. Co. v. Railroad Commispion, 140 Wis. 145.
a vested property right which cannot be taken for the benefit of
another company without compensation, in the exercise of the
reserved right to alter or amend charters.
5. To compel the senior railway company to pay any part of the
expense occasioned by the crossing of its road by the junior
company would be a taking of the property of the former; and
Buch a taking without compensation to the senior company
would not be a reasonable or valid exercise of the police power.
6. Sec. 1797 — 56, Stats. (Laws of 1907, ch. 454), — ^relating to cross-
ings of railway tracks thereafter made, and providing that
the Railroad Commission may prescribe the protective appli-
ances to be maintained at such crossings and fix the propor-
tion of the expense of constructing, operating, and maintaining
such a crossing and protective appliances which shall be paid
by the owners of said tracks respectively, — may reasonably be
so construed as not to require the Commission to impose any
part of the expense of the crossing upon the senior road which
would result In a taking of Its property without compensation;
and in support of the validity of the statute it should be so
construed.
7. When, pursuant to sec. 1797 — 56, the Railroad Commission im-
poses upon the senior road a part of the expense of construct-
Ing, operating, and maintaining a crossing of Its tracks and
the prescribed protective appliances, the senior road is entitled
to recover In the condemnation proceedings before commis-
sioners appointed by the court (under subd. 6, sec 1828, Stats.
1898) all damages suffered by it by reason of the crossing, in-
cluding damages on account of the burden or expense so im-
posed upon it by the Commission.
8. This provision of sec. 1797 — 56, that the Railroad Commission
may apportion the expense of the crossing, is not a delegation
of legislative power, or a vesting of judicial power in the Com-
mission.
9. An order of the Railroad Commission will not be disturbed by
the courts unless it is unlawful or unreasonable.
10. An order of the Railroad Commission apportioning the expense
of a crossing, pursuant to sec. 1797 — 56, should leave the amount
of damages occasioned by the crossing to be fixed by the com-
missioners appointed by the court in the condemnation proceed-
ings under subd. 6) sec. 1828, Stats. (1898).
Per Mabshall, J., cancurrinff:
1. The right, in a general sense, to construct a railroad is referable
to the certificate of public convenience and necessity, under
sees. 1797—43 to 1797—53, Stats. (Laws of 1907, ch. 454).
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5] AUGUST TERM, 1909. 147
State ex rel. Northern Pac. R. Co. v. Railroad Commission, 140 Wis. 145.
2. The right to cross the tracks of a senior railroad is referable to
subd. 6, sec. 1828. Stats. (1898).
3. The right to take the property of the senior road at tlie point of
crossing is referable to said subd. 6, sec. 1828.
4. Authority to locate the place of crossing is referable to the im-
plied power of the Railroad Commission under sees. 1797 — 64
to 1797 — 56, and the general spirit of the act of 1907, super-
seding by necessary inference subd. 6, sec. 1828, Stata. (1898),
on that subject.
5. The manner of constructing the railroad, including the manner
of making the crossing with its accessories, and the establish-
ing of status in respect thereto to be dealt with in condemnar
tion proceedings, is referable to the decision of the Railroad
Commission under sees. 1797 — 54 to 1797 — 56.
6. The manner of acquiring property for the purposes of the road,
including tliat of any other road at the crossing, is referable
to sees. 1845-1851, and such other parts of ch. 87, Stats. (1898),
as bear on the subject, the proceedings to that end to be sub-
sequent to the determination by the Railroad (Commission under
sees. 1797—54 to 1797—56.
7. The tommissioners in condemnation proceedings are required
to deal with the situation created by the determination afore-
said making the owner of the senior road good by an award
of a money equiTalent for such appropriation of its property
rights as shall be contemplated in view of such determination,
including the cost of such gn*ading, rails, frogs, switches, and
other appliances used in constructing and maintaining the
crossing, and maintaining and operating safety appliances^ as
shall be preliminarily entailed upon it in view of such deter-
mination.
Babnes. J., and Wi!^slow, C. J., dissenting, are of the opinion:
1. So much of sec. 1797 — 56, Stats., as empowers the Railroad Com-
mission to require the senior company to bear any portion of
the expense of constructing a crossing proper is void because
it deprives the company of its property without due process
of law; but the invalidity of this particular provision does not
aflfect the remaining portion of the act.
2. An order of the Commission, not imposing upon the senior com-
pany any part of the expense of constructing the crosping
proper, but requiring it to defray one half of the expense of
maintenance, is not erroneous in the absence of anything to
show that such latter expense was a material item or that the
half thereof would exceed the cost of maintaining the road at
that point had no crossing been made.
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148 SUPREME COURT OF WISCONSIN. [Oct.
State ex reL Northern Pac. R Co. v. Railroad Commission, 140 Wis. 145.
3. Whether a crossing already exists or is to be made, the state, in
the exercise of its police power, may require that it be safe-
guarded by protective appliances, such as mterlocklng plants,
whenever in the exercise of reasonable Judgment such devices
are deemed to be required for the public safety or convenience,
and may make any reasonable apportionment of the expense
between the roads affected, without reimbursement to the senior
company.
4. The legislative declaration requiring railway ' companies to in-
stall approved safety devices whenever necessary to protect
life or facilitate commerce is implied in the language of ch. 454,
Laws of 1907, and In view thereof the delegation of power to
the Railroad Commission to determine the fact as to the neces-
sity for such devices at a given point, and to apportion the
expense thereof, is valid.
6. Sec. 1797 — 66, Stats., should not be construed as giving the senior
company any right to recover from the junior, in condemna-
tion proceedings or otherwise, the amount apportioned to and
paid by such senior company for the construction or mainte-
nance of safety devices at a crossing.
6. There is no limitation on the right of the legislature^ under
sec. 1, art. XI, Const., to repeal corporate charters, except the
consciences of the legislators, and no limitation on the right
of amendment, except the XlVth amendment to the federal
constitution.
Appeal from a judgment of the circuit court for Dane
county: E. Rat Stevens, Circuit Judge. Modified cmd af-
firmed*
This is a certiorari proceeding brought by the relator,
Northern Pacific Railway Company, to set aside and declare
invalid an order made by the Railroad Commission of Wis-
consin. The matter was heard in the circuit court for Dane
coimty upon a petition, writ of certiorari, and return thereto,
and judgment was entered by the court below aflBrming the
order of the Railroad Commission, from which judgment
this appeal was taken.
It appears from the record before us that more than
twenty years ago the Northern Pacific Railroad Company,
the predecessor of the Northern Pacific Railway Company,
relator herein, acquired for its main line from Ashland, Wis-
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5] AUGUST TERM, 1909. 149
State ex rel. Northern Pac R. Co. ▼. Railroad Commission, 140 Wii. 146.
consin, to Duluth, Minnesota, and from Ashland to the Pa-
cific coast, a right of way across the northwest quarter of sec-
tion 2, township 42 north, of range 14 west, and also a right
of way for a spur on Connor's Point, both in the city of Su-
perior, Wisconsin. Tracks were constructed on these rights
of way and have ever since been maintained as a part of the
system of railways owned by relator and its predecessor.
When these rights of way were acquired and the tracks con-
structed, subd. 6, sec. 1828, R. S. 1878, defining the powers
of railroad corporations and relating to the crossing of tracks
of railroads, provided :
'To cross, intersect, join and unite its railroad with any
railroad heretofore or hereafter constructed, at any point on
its route and upon* the grounds of such railroad corporation,
with the necessary turnouts, sidings and switches and other
conveniences in furtherance of the objeitts of its connections.
And every corporation whose railroad is or shall be hereafter
intersected by any new railroad shall unite with the owners
of such new railroad in forming such intersections and con-
nections and grant the facilities aforesaid; and if the two
corporations cannot agree upon the amoimt of compensation
to be made therefor or the points and manner of such cross-
ings and connections the same shall be ascertained by com-
missioners to be appointed by the court, as is provided in this
chapter in respect to acquiring title to real estate. But no
corporation which shall have obtained the right of way and
constructed its road at the point of intersection before the
application for the appointment of commissioners may be
made shall be required to alter the grade or change the loca-
tion of its road, or be required to bear any part of the ex-
pense of making and maintaining such crossing or of such
proceeding."
In 1907 the legislature of Wisconsin passed ch. 454, Laws
of 1907, which contained the following provision:
"Sec. 1797 — 66. Every crossing of the track of a steam
railroad hereafter made by the track of another steam rail-
road ; and every crossing of the track of an electric or street
railway surface road hereafter made at points outside the
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150 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Northern Pac. R. Co. v. Railroad CJommiasion, 140 Wii. 14^
limits of incorporated cities by the tracks of a steam railroad y
and every crossing of the track of a steam railroad or of any
other electric or street railway surface road hereafter made
at points outside the limits of incorporated cities by the track
of an electric or street railway surface road shall be above,
below or at grade of the tracks proposed to be crossed as the
Railroad Commission shall determine after hearing the par-
ties upon reasonable notice prescribed by said Commission.
In such determination, said Railroad Commission shall pre-
scribe the kind and character of the protective appliances, if
any, to be installed, operated and maintained at such cross-
ings, and they shall also fix the proportion of the expense of
originally constructing, operating and maintaining such
crossing and of any protective appliances prescribed by
them and the- proportion of the expense of operating and
maintaining the same which shall be paid by the owners of
said tracks respectively. In case said commissioners shall
not in the first instan<!e require protective appliances to be in-
stalled at grade crossings made under this section, they shall
after reasonable notice to and hearing of the parties, have
power on application of either party interested in maintain-
ing and operating said crossing, or on their own motion to
require protective appliances to be installed, operated and
maintained at such grade crossings and to fix the basis upon
which the parties using such crossings shall bear and pay
the cost and expense of constructing, operating and maintain-
ing the same."
After the passage of the foregoing act the Wisconsin &
Northern Minnesota Railway Company was organized un-
der the laws of Wisconsin, and obtained from the Railroad
Commission of Wisconsin a certificate of convenience and
necessity for the construction of a line from the city of Su-
perior across the double tracks of the relator known as the
Xewton Avenue line and across the track of the relator lo-
cated on Connor's Point. Thereafter it filed its plans and
specifications for the construction of its proposed railroad,
showing grade crossings of the relator's tracks. A hearing
was had before the RaUivad Commission, and the Commis-
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5] AUGUST TERM, 1909. 151
State ex rel. Northern Pac B. Co. v. Railroad Ommission, 140 Wis. 145>
sion on May 26, 1908, made an order whereby it was deter-
mined and directed that the crossings be at grade; that the
expense of constructing the crossings be paid by the Wiscon-
sin & Northern Minnesota Railway Company; that after the
construction of the crossings each company bear one half of
the expense of maintaining and operating them; that an in-
terlocking, derailing, and signal system be put in at the cross-
ing of the double tracks ; and that each company bear one
half of the expense of constructing, maintaining, and operat-
ing such system. The relator opposed a grade crossing.
The evidence shows that, before the passage of ch. 454,
Laws of 1907, in grade crossings it was customary for the
junior road to pay the entire cost of constructing, operating,
and maintaining the crossing and interlocking system. The
position of the appellant here is that the order of the Railroad
Commission, affirmed by the court below, charging it with any
part of the expense of maintaining the crossing, or any part
of the expense of the construction or maintenance of the in-
terlocking, derailing, and signal system, is without author-
ity of law and void, and that if ch. 454, Laws of 1907, be
construed as authorizing the order of the Commission, it de-
prives the relator of its property without due process of law,
contrary to the provisions of sec. 1 of the XlVth amend-
ment to the constitution of the United States, and of sec. 18
of article I of the constitution of Wisconsin, and that if said
chapter be constitutional and applies to the crossing of rail-
roads constructed prior to its enactment, then there is no evi-
dence to support the order of the Railroad Commission so
far as that order directs the relator to bear any part of the
cost of operating or maintaining the crossings or the con-
struction or maintenance of the interlocking system ; that the
applicant, Wisconsin & Northern Minnesota Railway Com-
pany, never obtained any authority to enter upon or cross
the tracks or ri^ts of way of the relator.
Three cases are brought before us here by certiorari and
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152 SUPREME COURT OF .WISCONSIN. [Oct.
state ex rel. Northern Pac. B. Co. y. Railroad CommiBsion, 140 Wis. 145.
argued together, namely, the instant case, State ex rel. Great
Northern Railway Company v. Railroad Commission, post,
p. 181, 121 N. W. 932, and State ex rel. Lake Superior Ter-
minal d Transfer Railway Company v. Railroad Commis-
sion, post, p. 182, 121 N. W. 932. The contentions in each
of these cases are substantially the same. The decision,
therefore, in this case will be decisive of the other two.
For the appellant there was a brief by Louis Hamtch, at-
torney, and Charles W. Burm and Charles DotmeUy, of coun-
sel, and oral argument by Mr. Hanitch and Mr. Donnelly.
For the respondents there was a brief by the Attorney
General for the Railroad Commission, by Lose, Powell &
Lose, attorneys for the Minneapolis, St. Paul & Sault Ste.
Marie Railway Company and the Vfiscormn & Northern
Minnesota Railway Company, and by Alfred H. Bright, of
counsel; and the cause was argued orally by Mr. L. K. Lose
and Mr. Bright. ^
The following opinion was filed June 3, 1909:
E!ebwin, J. 1. It is contended on the part of each re-
lator, but especially by the Great Northern Railway Com-
pany and the Lake Superior Terminal & Transfer Railway
Company, that the proceedings to obtain a certificate of con-
venience and necessity were premature, because the point of
crossing should have been first determined and the right to
cross obtained before such certificate was granted. This
contention involves the construction of the acts of the legis-
lature set out in the statement of facts.
Subd. 6, sec 1828, Stats. (1898), provides that if the cor-
porations cannot agree upon the amount of compensation to
be made "or the points and manner of such crossings and
connections the same shall be ascertained by commissioners to
be appointed by the court, as is provided in this chapter in
respect to acquiring title to real estate.'^ It is insisted that
this provision is still in force, and that the point of cross-
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5] AUGUST TERM, 1909. 153
State ex rel. Northern Pac. R. Co. v. Railroad Ck>mmi88ion« 140 Wis. 145.
ing must be so determined by commissioners appointed by
the court, and not by the Railroad Commission.
Sec 1797 — ^56, Stats. (Laws of 1907, ch, 454), provides
that "every crossing of the track of a steam railroad hereafter
made by the track of another steam raiboad . . . shall be
above, below or at grade of the tracks proposed to be crossed
as the Railroad Commission shall determine." And it fur-
ther provides that in such determination the Railroad Com-
mission shall prescribe the kind and character of the protec-
tive appliances, if any, to be installed, operated, and main-
tained at such crossings. Sec. 1797 — 40 provides for the
application for certificate of convenience and necessity within
six months after the publication of the articles of associa-
tion, and sec. 1797 — 41 provides that no railroad corpora-
tion shall make application for such certificate unless it
shall have caused a copy of its articles of association to be
published in one or more newspapers within six months prior
to the time of making the application. Sec. 1797 — 43 pro-
vides that every application for a certificate of convenience
and necessity shall be accompanied by complete maps and
profiles of the line of the proposed road, which shall be filed
with the application, and that prior to granting or refusing
the certificate the Railroad Commission shall have the right
to permit errors, omissions, or defects in the application,
maps, and profiles to be supplied or corrected, and also to
permit changes in the proposed route where deemed desir-
able. Sees. 1797 — 45, 1797 — 46, and 1797 — 47 provide
for hearing counsel and taking evidence in support of or in
opposition to the application. Sec. 1797 — 48 provides that
upon conclusion of the hearing of the application, if the
Commission or a majority of them shall find that the pro-
posed road would be a public convenience and that a neces-
sity requires the construction of it, the Commission shall
forthwith grant and issue to the applicant a certificate that
public convenience and necessity require the construction of
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154 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Northern Pac. R Co. v.. Railroad Commiasion, 140 Wis. 145.
said road as proposed, and shall approve the maps showing
the proposed route of said railroad and file the same in their
office, and the applicant shall cause a copy of such maps, cer-
tified by the secretary of the Commission^ with the seal af-
fixed, to be filed in the office of the register of deeds in each
county in which such railroad shall be located, and such
filing shall be a condition precedent to the right of the ap-
plicant to institute and maintain condemnation proceedings
for the acquirement of land for right of way, stations, and
other necessary uses. Sec. 1797 — 58 provides for a change
or alteration of the route by a vote of two thirds of the di-
rectors of said railroad, and sec. 2, ch. 464 (p. 1086), Laws
of 1907, provides for the repeal of all acts in so far as they
are inconsistent with said chapter.
It is clear, therefore, from the foregoing statutes that subd.
6, sec. 1828, Stats. (1898), is still in force, except in so far
as it is repealed by ch. 454, Laws of 1907. Prior to the
Laws of 1907 a railroad company had the right, by a vote
of its board of directors, to locate the line of its railroad.
In re Milwaukee 8. B. Co. 124 Wis. 490, 102 N. W. 401 ;
In re Eastern Wis. B. & L. Co. 127 Wis. 641, 107 N. W.
496. Subd. 6, sec. 1828, Stats. (1898), as it existed before
the passage of ch. 454, Laws of 1907, provided that in case
of crossing of one railroad by another, where the corpora-
tions could not agree upon the amount of compensation "or
the points and manner of such crossings and connections,'^
the same should be ascertained by commissioners to be ap-
pointed by the court Ch. 454, Laws of 1907, we think obvi-
ously was intended by the legislature to authorize the Bail-
road Commission to settle the question of crossing which by
the former law was to be settled by commissioners appointed
by the court, and therefore the right of the Bailroad Com-
mission to determine whether such crossing should be above,
below, or at grade of the tracks proposed to be crossed, in
view of the different statutes above referred to, vested the
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5] AUGUST TERM, 1909. 15»
State ex rel. Northern Pac. R. Co. ▼. Railroad Ommission, 140 Wis. 145.
Railroad Commission with power to determine the point of
crossing as well as whether it should be above, below, or at
grade. The provisions of the statutes requiring maps and
profiles to be filed with the Railroad Commission, describing
particularly the location of the proposed road, and the pro
visions with reference to the approval of such maps and pro-
files and filing the same, seem clearly to indicate the l^is-
lative intention that the action of the Railroad Commission
was to be based upon the particular line indicated in the
papers filed with it for its action, except in so far as errors
mi^t be corrected and changes made as provided under the
law heretofore referred to. We think, therefore, it logically
follows, reading all the provisions of the statute together,
that the Railroad Commission is authorized to determine the-
point of crossing as well as the manner, and in passing upon
the application the point of crossing is included in the deter-
mination of the manner. In many cases at least the point of
crossing would have a bearing upon the manner of crossing,
whether above, below, or at grade. Besides, the Commission
under the law is authorized to pass upon the application pre-
sented and described in the maps and profiles and not upon
some other or different route. We do not see how the legis-
lature could have intended to vest in the Railroad Commis-
sion the authority to pass upon the manner of crossing and
withhold the power to determine the point of crossing, since
each is in a degree involved in the determination of the other.
The argument is that commissioners should be first ap-
pointed by the court to determine the point of crossing and
the damages. But this would seem to be an awkward and
impractical execution of the statute; for, until the manner
of crossing was determined, it is difficult to see how the
commissioners could intelligently assess the damages. Nor
could they as well determine the point of crossing until the
manner was determined. In fact, it seems the most reason-
able and practical construction of the statute would require
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156 SUPREME COURT OF WISCONSIN. [Oct.
Stat© ex reL Northern Pac R, Co. t. Railroad Commission, 140 Wia. 145.
that the determination of both point and manner of crossing
should rest with the same tribimal, and we think such was
the intention of the legislature. That the law as it existed
before the passage of ch. 454, Laws of 1907, respecting the
right of the railroad company to designate its route, was not
abrogated by the latter law, was ruled by this court in a late
case. Eastern B. Co. v. McCord, 136 Wis. 249, 116 N. W.
841.
It is manifest that the line of road designated in the maps
and profiles was intended by the legislature to be the line
upon which the Railroad Commission was to act in deter-
mining whether the crossing should be at grade or otherwise,
and provision was therefore made for the correction of er-
rors, omissions, or defects in the application, maps, and pro-
files, and that certified copies of the maps be filed in each
county through which the road was to run, doubtless for
the purpose of making a record of the land sought to be ac-
quired for the road. The provisions of sec. 1797 — 58 also
bear evidence of legislative intention to give the Railroad
Commission power over the determination of point of cross-
ing. It provides for change of route by filing a map with
the Railroad Commission and register of deeds where the
original map fixing the location is filed, and further states :
"Provided that such alteration or change shall not deviate
from the original route of such railroad as approved by the
Railroad Commission for a greater distance than one
mile.'^
Our attention is called to Clean S. R. Co. v. Pa. R. Co. 75
App. Div. 412, 78 N. Y. Supp. 113, as controlling on this
point. But the New York statute under which this decision
was rendered is quite different from ours, and therefore the
decision does not shed much light upon the construction of
our statuta A careful examination of all the provisions of
our statutes upon the subject convinces us that the Railroad
Commission is vested with power to determine the point as
well as the manner of crossing, and that the question of
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5] AUGUST TEEM, 1909. 157
state ex rel. Northern Pac. R Co. ▼. Bailroad Commission, 140 Wis. 145.
compensation only nnder the law is left to the commission-
ers appointed by the court. 3 Elliott, Eailroads, §§ 1119,
1120 ; People ex rel. Depew & S. W. B. Co. v. Board of B. B.
Comwfrs, 4 App. Div. 259, 38 K Y. Supp. 528.
2. The crucial question in the case is the distribution of
burdens between the contending companies, namely, what
portion of the expense occasioned by the crossing must be
borne by the junior company, or company seeking to cross
the old road. The right to cross before as well as after the
passage of ch. 454, Laws of 1907, is unquestioned; likewise
the right of the senior road to some compensation. But the
court below as well as the Bailroad Commission held that the
expense of maintaining the crossing and the cost of con-
struction and maintaining the interlocking, derailing, and
signal system should be borne one half by each road. This
conclusion is based upon the right of the state to alter or
repeal the charter of the senior company and also under the
police power. The right to alter or repeal existing charters
is not without limitation when the question of Vested prop-
erty rights under the charter is involved. The power is one
of regulation and control, and does not authorize interfer-
ence with property rights vested under the power granted.
Comm. V. Essex Co, 13 Gray, 239 ; Sinking-Fund Cases, 99
U. S. 700 ; Shields v. OKio, 95 U. S. 319 ; Miller v. State, 15
Wall. 478; HolyoTce Co. v. Lyman, 15 Wall. 500; Pear$aU
V. G. N. B. Co. 161 U. S. 646, 16 Sup. Ct. 705. The doc-
trine is well stated in Siriking-Fund Cases, 99 U. S. 700,
720, as follows :
"That this power has a limit no one can doubt. All
agree that it cannot be used to take away property already
acquired under the operation of the charter or to deprive the
corporation of the fruits actually reduced to possession of
contracts lawfully made. . . .'* ^
The reserve power stops short of the power to divest vested
property rights, and is embodiefd in the state constitution for
the purpose of enabling the state to retain control over cor-
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158 SUPKEME COURT OF WISCONSIN. [Oct.
State ex rel. Northern Pac. R Co. v. Railroad Commiseion, 140 Wis. 145.
porations, and must be construed in connection with the
other provision of the constitution to the effect that private
property shall not be taken for public use without compensa-
tion. It follows, therefore, "that where, imder power in a
charter, rights have been acquired and become vested, no
amendment or alteration of the charter can take away the
property or rights which have become vested under a legiti-
mate exercise of the powers granted/' Comm. v. Essex Co.,
supra. Moreover, the power to alter or amend is a reserved
power in the interest of the state to modify or repeal its own
<5ontract with the corporations. Tomlinson v. Jessup, 82
U. S. 454; State v. C. & N. W. B. Co. 128 Wis. 449, 108
N. W. 594.
The appellant acquired its right of way and constructed
its road under the provisions of the laws of this state, and
while subd. 6, sec 1828, Stats. (1898), was in force and un-
modified, which subdivision provided :
"But no corporation which shall have obtained the right
of way and constructed its road at the point of intersection
before the application for the appointment of commission-
ers may be made shall be required to alter the grade or
■change the location of its road, or be required to bear any
part of the expense of making and maintaining such cross-
ing or of such proceeding."
So under this statute in force at the time appellant con-
structed its road there can be no doubt that railroads there-
after crossing were required to pay all the expense of con-
structing and maintaining such crossing. This statute is
in harmony with the common law, as an examination of
the authorities will demonstrate. Chicago, M. & St. P. R.
Co. V. Milwaukee, 97 Wis. 418, 72 N. W. 1118; State ex rel
Minneapolis v. St. P., M. & M. R. Co. 98 Minn. 380, 108
N. W. 261; Northern C. B. Co. v. Mayor, etc. 46 Md. 425;
Dyer Co. v. Railroad Co. 87 Tenn. 712, 11 S. W. 943; Per-
ley V. Chandler, 6 Mass. 4:^4: y Richardson v. Bigelow, 15
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r> I AUGUST TERM, 1909. 159
state ex rel. Northern Pac. R. Co. v. Railroad Commiesion, 140 Wis. 145.
Gray, 154; State ex rel. North C. R. Co. v. N. P. B. Co. 49
Wash. 78, 94 Pac. 907.
In Boston & A. B. Co. v. Cambridge, 159 Mass. 283,
287, 34 N. E. 382, the court said :
"But at common law the crossing of a new way with one
already in use must be made with the least possible injury
to the old way, and whatever structures are necessary must
be erected and maintained at the expense of the party mak-
ing the new way, and, if the old way cannot be crossed with-
out damage, the damage must be ascertained and paid.'*
The appellant, therefore, having acquired its right of way
under the statute referred to protecting it from all damages
occasioned by the crossing by the junior road, must have a
vested property right which cannot be taken for the benefit
of another railway without compensation. Although the
property of a railroad is devoted to public use it is neverthe-
less entitled to protection, subject to reasonable regulation in
the interest of the public. Eastern Wis. B. & L. Co. v.
TIacJcett, 135 Wis. 464, 115 N. W. 382; Interstate Comm.
Comm'n v. C. O. W. B. Co. 209 U. S. 108, 28 Sup. Ot. 493.
In Eastern Wis. B. £ L. Co. v. Hackett, supra, this court
said:
"It is a somewhat prevalent error that property devoted
to public use and subject to public regulation is thereby quite
out of law, or, as Blackstone says, caput lupinum. The use
of such property is subject to regulation, and subject to in-
terference by the public authorities with the dominion of
the owner to a far greater degree than private property, be-
cause of its quasiipuhlic character, and because of the tend
ency to abuse or extortion in its use and management. But,
subject to this limitation, the owner of such property has
the same rights in his property as any other owner. He
may insist upon his own price therefor, except as against the
power of eminent domain. He may insist upon all the ad-
vantages of location and all the advantages of existing con-
tracts, so long as he does not run counter to reasonable and
lawful regulations concerning the use of such property."
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160 SUPREME COURT OF WISCONSIN. [Oct.
state ex rel. Northern Pac. R Co. ▼. Railroad Commission, 140 Wis. 145.
And in W. U. Tel. Co. v. Pa. R. Co. 195 U. S. 540, 25 Sup.
Ct. 133, it is said :
"A railroad^s right of way has, therefore, the substan-
tiality of the fee, and it is private property even to the pub-
lic in all else but an interest and benefit in its uses. It can-
not be invaded without guilt of trespass. It cannot be ap-
propriated in whole or part except upon the payment of com-
pensation. In other words, it is entitled to the protection
of the constitution, and in the precise manner in which pro-
tection is given. It can only be taken by the exercise of the
powers of eminent domain, and a condition precedent to the
exercise of such power is, we said in Sweet v. Rechel [159
U. S. 380], that the statute conferring it make provision for
reasonable compensation to the owner of the property taken."
Upon the proposition that under the reserve power in the
constitution vested property rights cannot be taken away or
destroyed without compensation, the following cases are in
point: Detroit v. D. & H. P. R. Co. 43 Mich. 140, 5 N. W.
275 ; Hill V. Olasgow R. Co. 41 Fed. 610 ; San Joaquin & K.
R. C. & I. Co. V. Stanislaus Co. 113 Fed. 930; Shields v.
Ohio, 95 U. S. 319; State v. C. & N. W. R. Co. 128 Wis.
449, 108 N. W. 594.
It seems clear, therefore, under the authorities, that the
appellant when it constructed its road prior to the passage
of ch. 454, Laws of 1907, acquired a vested property right
which cannot be divested without compensation under the re-
serve power to alter or amend its charter. That the expense
of constructing and maintaining the crossing, including the
interlocking and derailing system, will be great is without
dispute. It is equally clear that this expense is occasioned
through the crossing by the junior road, and to compel the
senior road to pay any part of such expense is manifestly
a taking of the property of the appellant. While it may be
conceded that the safety devices are necessary and properly
within the power of the Commission to order, it is also true
that the necessity of such devices was caused by the crossing
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6] AUGUST TEEM, 1909. 161
State «x rol. Northern Pac. R. Co. t. Railroad Commission, 140 THs. 145.
by the junior road. The question, therefore, is one of dis-
tribution of burdens between the senior and junior roads.
That there is no authority of law to lay any portion of this
burden upon the senior road under the power to alter or
amend its charter (sec 1, art XI, Const.) we think is dear.
The question arises whether any portion of the burden can
be imposed upon the senior company under the police power.
The main contention of counsel for respondent to support the
order of the Railroad Commission in apportioning a part of
the expense of the crossing to the appellant is based upon the
police power, and that the act of the legislature (ch. 454,
Laws of 1907) is a legitimate exercise of such power. The
particular scope of the police power has been the subject of
much judicial discussion. In the late case of State v. Red-
mon, 134 Wis. 89, 114 N. W. 137, it is said that in the mul-
titude of attempts which have been made to define it not
much has been added to the simple expression that it is the
power to make all laws which in contemplation of the con-
stitution promote the public welfare, and the controlling
question in considering the scope of the police power is
whether the manner of dealing with the subject in the par-
ticular case ^^so passes the boundaries of reason as to over-
step some constitutional inhibition, express or implied."
The question of the scope of police power has been discussed
in numerous decisions of this court, and further general dis-
cussion would seem useless.
If the act in question (ch. 454, Laws of 1907) were con-
strued as contended by coimsel for respondent^ namely, that
the Commission has power to apportion the cost of the cross-
ing between the roads as it did and without remedy for ap-
pellant's damages, it would be imconstitutional and not a rea-
sonable exercise of the police power, because such a construc-
tion would amoimt to a taking of the property of appellant
and transferring it to respondent without compensation. We
do not think the act should have such construction, and we
Vol. 140—11
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162 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Northern Pac R Co. v. Railroad Oommiasion, 140 Wis. 145.
believe it is capable of one which will render it constitutional.
That the Commission had the right to order the interlocking,
derailing, and signal system may be conceded, since, in view
of the conditions created by the crossing, some such regula-
tion was doubtless necessary. But it was necessary because
of the crossing by the junior road, and without such cross-
ing would be unnecessary. The Railroad Commission and
the court below seem to have been of the opinion that under
the law the Commission was bound to apportion the costs
of crossing between the two roads, and that the statute is
mandatory upon the subject. True, the law provides that
the Commission "shall also fix the proportion of the expense
of originally constructing, operating and maintaining such
crossing, and of any protective appliances prescribed by
them and the proportion of the expense of operating and
maintaining the same which shall be paid by the owners of
said tracks respectively." The act must have such oonstrue-
tion as will save it from infringing the constitution, if it will
bear such construction. Now, while the language of the act
may support the construction claimed for it by respondent, .
we think it capable of a construction which would not re-
quire the Railroad Commission to impose any part of the ex-
pense of the crossing upon the senior road which would re-
sult in a taking of its property without compensation; as,
for example, all damages occasioned by the crossing might
be adjusted in the condemnation proceedings, and thus the
equal status of the roads as to future burdens established,
and perhaps other conditions might arise in cases where a
part of the expense of the crossing might be charged to the
senior road without violating any constitutional principle.
We shall not attempt to anticipate what cases or conditions
might arise which would justify charging part of the ex-
pense to the senior road. It is sufficient to say that such
construction cannot be given the law as would result in tak-
ing the property of appellant for the benefit of respondent
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5] AUGUST TERM, 1909. 163
State ex rel. Northero Pac. R. Co. t. Railroad Commission, 140 Wis. 146.
without compensation. But, returning to the question of
right to impose the burden of one half of the expense of the
crossing under the police power upon the senior road, and
conceding that it was within the power of the Commission to
order such system, the order cannot be sustained except on
the idea of payment of damages to the senior road. .
Counsel for respondents seek to support their position on
the authority of cases regarding public street crossings. But
the distinction between the two classes of cases is quite
clearly marked. In the first place, the "ways," as pointed
out in the decisions of some courts, are not of the same gen-
eral nature. Among other points of distinction which may
be suggested it may be observed that a street or public high-
way is opened and used, not for revenue, but solely for the
benefit of the general public. While it is true a railroad has
some of the attributes of a public highway, in that it is a
common* carrier of freight and passengers, yet it is owned by
private parties and operated and used as other private prop-
erty for gain, subject to public control, because devoted to a
public purpose. And so the common-law rule respecting the
distribution of the burden caused by the crossing of "ways"
has been held to apply to "ways" of the same general nature.
State ex rel. Minneapolis v. St, P,, M. & M. R. Co. 98 Minn.
380, 108 N". W. 261 ; Chicago, M. £ St. P. R. Co. v. Milwau-
Jcee, 97 Wis. 418, 72 N. W. 1118. And in Toledo, A. A. &
N. M. R. Co. V. D., L. & N. R. Co. 62 Mich. 564, at p. 566
(29 N. W. 603), speaking on a statute similar to ours, the
court said :
"But I can find no authority for compelling the company
whose road is croftnod to pay any part of the expense of mak-
ing or constructing the crossing. Certainly, it is not for its
interest to have its property thus used ; and while the com-
pany in accepting its franchise must be regarded as having
done so upon the condition that its road might be thus crossed
upon being paid reasonable compensation therefor, there can
be no presumption that it ever consented to pay for the privi-
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164 SUPREME COURT OF WISCONSIN. [Oct.
8tate ex rel. Northern Pac R. Co. t. Railroad CJommission, 140 Wis. 145.
lege of being thus injured. I know of no law or principle
which will compel one company to build and maintaiii a rail-
road track for another^or to furnish the money necessary for
that purpose ; and to the extent that this section of the stat-
ute requires this to be done in this class of cases it is repug-
nant to the constitution/'
In Flint & P. M. B. Co. v. D. & B. C. B. Co. 64 Mich.
.350, 31 N. W. 281, it was held that in condemnation pro-
ceedings by one railroad for the right to cross another, the
cost of maintaining signals, a crossing system, and watch-
man were proper elements of damages. In State ex rel.
North C. B. Co. v. N. P. B. Co, 49 Wash. 78, 94 Pac. 907,
the court held that the burden of maintaining an interlock-
ing device at the point of crossing was an actual damage to
the senior road and that such was the result of the crossing,
and therefore it should be charged to tlie road for whose bene-
fit the damage was occasioned. In Butte, A. 4& P. B. Co. i;.
M. U. B. Co. 16 Mont. 604, 41 Pac. 232, it was held that the
expense of a watchman at the crossing should be imposed
upon the new road. In West Jersey & 8. B. Co. v. Atlantic
City & 8. T. Co. 65 N. J. Eq. 613, 622, 56 Atl. 890, 894,
the court said :
"There seems to be no equitable ground which requires the
senior company presently in occupation to pay anything to
enable the junior company to construct its own crossing in
such a manner that it shall not impair rights of the senior
company already vested and in enjoyment. It is the duty of
the junior company so to build its tracks over the senior com-
pany's rails that the crossing may be safe.'*
To the same effect are the following cases: Winona d 8.
W. B. Co. V. C, M. & St. P. B. Co. 50 Minn. 300, 52 N. W.
657; Elkins E. B. Co. v. W. M. B. Co. 163 Fed. 724; St.
Louis, J. & C. B. Co. V. 8. & N. W. B. Co. 96 HI. 274; Chi-
cago & W. I. B. Co. V. E. 0. B. Co. 115 HL 375, 4 N. E.
246.
It would be useless to attempt a general review of all the
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5] AUGUST TERM, 1909. 1G5
State ex rel. Northern Pac. K. Co. v. Railroad Commission, 140 Wis. 145.
authorities. We shall refer, however, to some of the cases
mainly relied upon by the respondents; and in considering
the authorities it must be borne in mind, as before stated,
that the question here is not as to when and under what cir-
cumstances the state can, under the reserve power, alter or
amend its contract with the corporation or take property un-
der a reasonable exercise of the police power in the interest
of the public, but whether it can take the property of one
lawfully acquired under legislative authority and give it to
another without compensation to the owner. In Chicago, St.
P., M. £ 0. B. Co. V. C, M. & St. P. R. Co. 113 Wis. 161,
87 N. W. 1085, 89 N. W. 180, the question arose under a
contract as to the meaning of "other similar appliances," and
it was held that they did not include an interlocking system,
since such system could not have been in the contemplation
of the parties when tlie contract was made. The question
arose under a contract between the two companies, parties to
the contract, while here the Commission determined what
shall constitute a proper crossing. In Railroad Com^mission
Cases, 116 U. S. 307, 6 Sup. Ct 334, 388, 1191, the ques-
tion was as to the right of the state to regulate rates and fix
a minimum transportation charge. In Pennsylvania R. Co.
V. Miller, 132 U. S. 75, 10 Sup. Ct. 34, the question arose as
to the right) under a change in the constitution of the state,
to recover consequential damages in a condemnation proceed-
ing, and the court held that, since there was no exemption
from future liability for such damages, it took its charter
subject to such liability created by general law in respect to
the subject matter involved. In Chapin v. Crusen, 31 Wis.
209, the case grew out of a ferry franchise which was held
to be a mere license, and even in that case the court recog-
nized the doctrine that vested property rights could not be
destroyed. Chicago & A. R. Co. v. Joliet, L. & A. R. Co.
105 111. 388, is where the question arose on stipulation entered
into between the roads. Cincinnati, J. & W. R. Co. v. Con-
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i66 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Northern Pac. R. Co. v. Railroad Comniiseion, 140 Wis. 145.
nersville, 170 Ind. 316, 83 N. E. 503, involved the question
of right tx) damages occasioned through compliance with po-
lice regulation. Grand Trunk W. R. Co, v. Railroad Com-
mission, 40 Ind. App. 168, 81 N. E. 524, involved contract
rights between the roads respecting an interlocking system.
Northern P. R. Co. v. State ex rel Dututh, 208 U. S. 583,
28 Sup. Ct 341, holds that the police power of the state can-
not be contracted away.
Many other cases cited by respondents involve the exercise-
of the police power, and where no question of vested prop-
erty rights between the roads existed, and crossings of streets
or public highways. The case most in point cited by re-
spondents is Lake Shore & M. S. R. Co, v. C, S, & C. R, Co..
30 Ohio St. 604. This case appears in a degree to support
the respondents' contentiqn, although it recognizes the right
of the senior road to have compensation for its property.
The case does not seem to rest on a statute like ours (subd.
6, sec. 1828, Stats. 1898), and if any such statute existed in
Ohio at the time the road was built, which we fail to find, it
was not considered by the court as controlling in any way in
the case. We have seen from the authorities cited that the
crossing road at common law was bound to restore the senior
road as far as possible to its former serviceableness and pay
all damages occasioned by the crossing, and our statute re-
ferred to manifestly was passed to protect that property right
and remove any question on the subject.
3. It is further contended by counsel for appellant that
ch. 454, Laws of 1907, is invalid, since it purports to invest
the Railroad Commission with power to fix the proportion of
the expense of crossing, and is. therefore a delegation of legis-
lative power or a vesting of the Commission with judicial
power. We do not regard this position tenable. Minneapo-
lis, St, P. & S, S, M, R, Co, V. Railroad Commission, 136
Wis. 146, 116 K W. 905 ; Madison v, Madison G, & E. Co.
129 Wis. 249, 108 N. W. 65 ; State ex rel, Kellogg v. Cur-
rens. 111 Wis. 431, 87 N. W. 561 ; Nash v. Fries, 129 Wis.
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5] AUGUST TERM, 1909. 167
State ex rel. Northern Pac. K. Co. v. Railroad Commission, 140 Wis. 145.
120, 108 N. W. 210-, Dowling v. Lancashire Ins. Co. 92 Wis.
63, 65 N". W. 738; Union B. Co. v. U. 8. 204 U. S. 364, 27
Sup. Ct. 367.
4. It is settled that unless the order of the Railroad Com-
mission be unlawful or unreasonable it cannot be disturbed.
Minneapolis, St. P. & 8. 8. M. R. Co. v. Railroad Ccmtmia-
sion, 136 Wis. 146, 116 K W. 905. The Commission, aa
appears from its opinion printed in the record by the re-
spondents, indicates that it considered under ''the plain man-
date of the statute" that it was compelled to distribute the
burden as it did, and that it was not concerned with the ele-
ments of damage to which the appellant was entitled under
subd. 6, sec 1828. The court below seems to have taken the
same view, as appears from the memorandum opinion filed,
in which it is said that if the appellant has the right to re-
cover such expenses that is a matter to be considered by the
condemnation commission. It is quite obvious, therefore,
that both the Railroad Commission and the court below were
in doubt as to what damages should be recovered in the con-
demnation proceedings, and intended to leave that matter for
future determination. If the purpose of the Railroad Com-
mission in making the order, and the court in affirming it,
was to negative the right of the appellant to recover the dam-
ages caused by the crossing, including maintenance of the
crossing and construction and maintenance of the interlock-
ing, derailing, and signal system, the Commission and court
were wrong and acted without authority in that regard. But,
on the other hand, if the purpose was to apportion the expense
to be charged to each road in the future, leaving the amount
of damages occasioned by the crossing to be awarded by the
commissioners appointed by the court in the condemnation
proceedings, then the order of the Commission is within the
law. This seems to have been the theory of the Commission
and the court below, and we think is the most practical and
workable construction of the statute.
It follows from what has been said that upon the case made
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168 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Northern Pac R Co. r. Railroad Commission, 140 Wis. 145.
the appellant should recover in the condemnation proceed-
ings all damages caused by the crossing /)f the senior road
by the junior road, including cost of grading, rails, frogs,
switches, and other appliances used in constructing and
maintaining the crossing, as well as the cost of constructing
and maintaining the interlocking, derailing, and signal sys-
tem. The judgment should therefore be modified so as to
make clear this idea.
By the Court. — ^The judgment of the court below is modi-
fied so as to aflSrm the order of the Railroad Commission
without prejudice to the appellant's right to recover all dam-
ages as indicated in this opinion, and as so modified is af-
firmed. No costs are allowed either party upon this appeal,
except that respondents pay the clerk's fees.
The following opinion was filed June 4, 1909 :
Babnes, J. (dissenting). The senior line of road is not
benefited theoretically or practically by having its tracks
crossed by those of the line subsequently built. The public is
not interested in requiring the senior line to pay any part of
the expense of such crossing, and so much of sec. 1797 — 56,
Stats. (Laws of 1907, ch. 454), as empowers the Railroad
Commission to require the senior line to defray any por-
tion of the expense of constructing a crossing proper is void
because it deprives the company of its property without due
process of law, in violation of the XlVth amendment to the
federal constitution. This particular provision of the law
may well be held void without jeopardizing the remaining
portion of the act.
No part of the expense of constructing the crossing proper
was assessed against the senior lines in this case, although
they were required by the Commission to defray one half the
expense of maintenance. In the absence of any showing
that such expense was a material item, or that the. amount
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5] AUGUST TERM, 1909. 169
State ex reL Northern Pac. R. Ca ▼. Railroad Commission, 140 Wis. 145.
the senior lines would be called upon to pay would exceed the
cost of maintaining their respective roads at the point of in-
tersection had no crossing been made, the order of the Com-
mission was not erroneous.
The court treats the crossing and the interlocking device
as being one and the same thing. It seems to me that this
conclusion is fimdamentally wrong. It is true the crossing
creates the necessity for the interlocking plant, if necessity
there is, but it is also true that it is perfectly feasible to op-
erate railroads without it. There were numerous grade cross-
ings before such devices were invented, and there are still
numerous crossings at grade where no such device is used.
An interlocking plant is primarily a safety device, calculated
to protect the lives and limbs of passengers and train em-
ployees. Secondarily, it is a device calculated to facilitate
traffic and commerce. It is not a crossing. The junior
road has the right under the statute to cross the senior line.
Such right existed when the roads of the appellant companies
were built. When that right is exercised, it is as important
that the employees and the patrons of one line be protected
as it is that those of the other should be ; and it is likewise as
essential that commerce be not impeded on the one line as
it is on the other.
The state has the undoubted right in the exercise of its
police power to require railway companies to install safety
devices such as interlocking plants, whenever in the exercise
of any reasonable judgment the public safety or convenience
requires such installation. This is true as to roads that were
constructed a half century ago, and it is true of roads that
are constructed at the present time. It is conceded in the
opinion of the court that this right exists, but only in a re-
stricted way. The court holds that such power of regula-
tion can be exercised only when the junior road is required
to defray the entire expense of the safety appliance used for
the protection of persons on both roads. Herein it seems to
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170 SUPREME COURT OF WISCO:XSIK [Oct.
State ex rel. Northern Pac. R. Co. v. Railroad Commission, 140 Wis. 145
me that the court has departed from soimd legal principles
well-nigh imiversally recognized, and has confounded the
power of the state in the exercise of eminent domain with
its exercise of police power. Our constitution prevents the
taking of private property for public use without just com-
pensation. Compensation has never beffli required or con-
sidered as a necessary element in the exercise of police power.
If the necessity exists for the exercise of the power it may
always be exercised, regardless of whether private property
is taken or not. So the question here is, not what the ex-
pense of the interlocking plant will be, or who shall bear the
burden of its instalment, but, Does the public safety or the
public convenience require that it be installed ? If this fact
exists, the power of the state is plenary to order the installa-
tion and to make such provision in regard to the division of
expense as it deems just. In the exercise of this power it
may order the removal of expensive industrial plants that
wore not originally but have become nuisances by reason of
the growth of the cities in which they are located. It may
tear down dangerous structures, may destroy liquor imlaw-
fully kept for sale, may establish quarantine regulations,
may destroy animals afflicted with a contagious disease, may
raze buildings to prevent the spread of conflagrations, and
may do many other things too numerous to mention, and all
these things may be done without an iota of compensation
to the persons damaged. If it be conceded, as it seems to be,
that the police power may be invoked to require safety de-
vices to be installed, there is little support in the authorities
for the position that the state may not apportion the expense
between the carriers affected, Freund, Police Power, § 611
et seq. I see no reason why the state may not require safety
devices such as interlocking plants to safeguard crossings, re-
gardless of whether such crossings are made before or after
the passage of the law requiring the devices to be used. The
power to require the device necessarily carries with it the
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5] AUGUST TERM, 1909. 171
State ex rel. Northern Pac. R. Co. v. Railroad Commission, 140 Wis. 146.
power to determine who shall bear the burden. There is, in
mj opinjon, no more reason for requiring the junior road ta
bear the entire burden of such a device where the crossing
was made in 1908 than there would be in requiring such a
road to bear the entire expense of an interlocking plant in
connection with a crossing made forty years ago. As popu-
lation and traffic increases, the use of such devices will be-
come more general, and it is apparent that such devices will
be installed at crossings where for a long series of years none
have been maintained. Under the very act we are consider-
ing, the Commission might have found that no necessity ex-
isted for the constructing of an interlocking plant. It is,
however, expressly authorized at any time in the future to-
order such a plant to be constructed if the public good so re-
quires. If such construction were ordered after the right of
way had been condemned, then certainly the senior road
could not be reimbursed for its part of the outlay in any con-
demnation proceeding.
No very clear legislative declaration is made in the law of
1907 requiring railway companies to adopt and install ap-
proved safety devices whenever necessary to protect life or
to facilitate commerce, although such declaration may be
fairly implied from the language used. In the absence of
such provision, express or implied, in the law, it would be
difficult to say that it did not confer legislative power upon
the Commission under the rule of State ex rel, Adams v.
Burdge, 95 Wis. 390, 70 N. W. 347 ; Bowling v. Lancashire
Ins. Co. 02 Wis. 63, 66 N. W. 738 ; In re North Milwaukee,
93 Wis. 616, 67 N. W. 1033, and kindred cases. It being^
the policy of the legislature to require such appliances to be
installed whenever reasonably necessary, the legislature may
constitutionally delegate to the Commission the power to de-
termine the fact as to whether or not the necessity exists for
an interlocking device at a given point. When such deter-
mination is made, it becomes incumbent on the railroads af-
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172 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Northern Pac. R. Co. v. Railroad Commission, 140 Wis. 145.
fected to install the device. It is compel:ent for the legisla-
ture to make any reasonable apportionment of the expense
of such device, and it may delegate to the Commission the
right to make such apportionment. I do not think there is
any inequity in requiring the junior and senior railroads af-
fected to contribute equally to the expense of constructing
and maintaining a safety device where the benefits to be de-
rived are substantially equal. In any event, the legislature
has the right to make the apportionment, and its apportion-
ment is final unless it palpably violates some constitutional
provision in so doing. The division of expense made in this
case by the Commission stands on the same footing as if made
by the legislature.
Sec. 1797—56, Stats. (Laws of 1907, ch. 464), clearly
empowers the Commission to determine and apportion the
cost of the protective appliance and of the expense of operat-
ing and maintaining the same between the senior and junior
lines, and further provides that the expenses so apportioned
shall be paid by the companies to which they are apportioned.
I do not think it was the intention of the legislature to
permit the senior line to recover back from the junior line,
in condemnation proceedings or otherwise, the amount re-
quired to be paid by the senior line under sec. 1797 — 56.
There is no language in the act from which such a right can
be implied. The plain ordinary meaning of the statute is
that what is paid by the senior line is paid for a device that
will inure to its benefit as well as to the benefit of the junior
road, for the recovery of which no right exists. It seems to
me to be an unjustifiable construction of the statute to hold
that it means otherwise. It is a purely senseless proceeding
to require the senior road to contribute to the construction
in the first instance and then require a like amount of money
to be refunded to it. The legislature should be acquitted of
intending anything so childish. Indeed, the court holds that
it adopts its construction of the law, not because it is the
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5] AUGUST TEEM, 1909. 173
State ex rel. Northern Pac. R. Co. v. Railroad Commission, 140 Wis. 145.
reasonable one, but because it is necessary to do so to avoid
declaring it unconstitutional.
The construction adopted by the court is impracticable and
cannot be carried out A money award only can be made
in condemnation proceedings. It is impossible to make such
an award to cover maintenance expenses. No one can deter-
mine when the earth will cease to exist, or is wise enough
to say that these roads will not be operated for all time.
Sec 1797 — 56 directly negatives the construction placed
thereon by the court. Condemnation proceedings are usu-
ally instituted and carried on before the new road is actually
constructed, and must be so carried on if the landowner so
elects. The Commission may not in the first instance re-
quire safety appliances to be installed at all. If the exi-
gencies of business later require installation, the Commission
may at any time order the appliances to be put in. If, in
this case, no interlocking plant had been ordered by the Comr
mission, could the expense of such a plant be charged to the
junior road in condemnation proceedings based upon the
contingency that such a plant might be ordered at some time
in the future? I think not, and that, if installation were
ordered five or ten years hence, there would be no doubt un-
der the law that both roads might be required to share in the
exp^ise.
It is said in the opinion of the court:
"The ri^t to alter or repeal existing charters is not with-
out limitation when the question of vested property rights
under the charter is involved. The power is one of regula-
tion and control, and does not authorize interference with
property rights vested under the power granted.*'
I desire to expressly record my dissent from the quoted
part of the opinion. Sec. 1, art. XI, of our constitution em-
powers the legislature to enact laws for the formation of all
corporations without banking privileges. It expressly pro-
vides that "all general laws or special acts, enacted under the
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174 SUPREME COURT OF WISCOXSIX. [Oct.
State ex rel. Northern Pac. R. Co. v. Railroad Commission, 140 Wis. 145.
provisions of this section, may be altered or repealed by the
legislature at any time after their passage.'^ There is no
limitation on the right of the legislature to repeal corporate
charters exoept the consciences of the legislators, and no
limitation on the right of amendment except the XIV th
amendment to the federal constitution. The state may not
confiscate the property of corporations to itself, but the in-
cidental loss that may result from the repeal of a corporate
charter is one that every corporation knowingly faces and
assents to when it elects to incorporate under the laws of the
state. This provision of our constitution was advisedly in-
serted to obviate the effect of the decision of the supreme
court of the United States in the Dartmouth College Case, 4
Wheat. 518. It is too plain to admit of more than one mean-
ing or interpretation and too important to be frittered away
by inadmissible construction.
I think the order of the circuit court should be affirmed,
and that the appellants are not entitled to recover in con-
demnation proceedings any part of the expense of installing
the interlocking plant
WiNSLow, 0. J., concurs in the foregoing dissenting
opinion.
The following opinion was filed June 9, 1909 :
MABSHAI.L, J. {concurring). It escaped my attention till
after the court's opinion was filed that it is there suggested
that the question of whether proceedings to obtain the cer-
tificate of public necessity and convenience were premature
was involved on this appeal. That is hardly accurate. Such
proceedings were necessarily commenced and concluded un-
der sec. 1797 — 4:8, Stats. (Laws of 1907, ch. 454), and pre-
ceding sections before this proceeding was instituted. The
former related to general right to construct the road. The
latter to manner of constructing it, including crossings of
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5] AUGUST TERM, 1909. 175
State ex rel. Northern Pac. R. Co. v. Railroad Commission, 140 Wis. 146.
other roads and the construction, maintenance, and operation
of necessary safety devices at such crossings, and necessarily
required, as hereafter indicated, preliminary thereto the lo-
cating of such crossings. The right to cross other railroad
tracks is referable to subd. 6, sec. 1828, Stats. (1898). The
authority, in case of disagreement, to fix the place of any
such crossing is also referable to such subdivision, unless it
is superseded by the act of 1907, which appellant denied.
No location of the crossing in question had been made under
the old law, therefore appellant contended this proceeding,
following in logical order the preliminary one to obtain the
initial certificate, was prematurely commenced.
The act of 1907 did not expressly supersede the old law
as regards authority to locate crossings. It did, as indicated
in the decision, confer such power as to things made the sub-
ject matter of this proceeding, as, by necessary implication,
to carry therewith power to locate the place of crossing any
other road, thus repealing the old law on the subject So it
was held, this pr(k;ecding was not prematurely brought be-
-cause power to locate the place of crossing of another road
is incidental to the power sought specially to be exercised.
*By oversight, I think, the declaration appears in the opin-
ion that the reserve power in the constitution to alter, amend,
and repeal corporate charters is "one of regulation and con-
trol." The court did not intend to go further than Sinking-
Fund Cases, 99 U. S. 700, cited to the effect that such power
does not extend to authority to take away property acquired
under a corporate charter.
The trial court is acquitted in the decision, I understand,
of having determined that, in the ultimate, the senior road
must bear any of the burden of the crossing or its accessories,
either of construction, maintenance, or operation. It is held
that the order and judgment merely create a status to be dealt
with in condemnation proceedings, and that so far as it and
its consequences would otherwise be, by appropriation of its
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176 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Northern Pac. R. Co. v. Railroad Commission, 140 Wis. 145.
■ I —
property, to the permanent pecuniary injury of appellant as
compared with the situation without the new crossing, the
commissioners in such proceedings should award a money
equivalent^ and that a construction of the act of 1907 to that
end is reasonable and necessary to save it from condemna-
tion as unconstitutional.
The decision of the court recognizes that the judgment
complained of, following the determination of the Railroad
Commission, in creating a status to be dealt with in condem-
nation proceedings, imposed upon the junior road the burden
of making the crossing, furnishing all labor, material, and
appliances to that end. The decision, now, as I understand
it, merely provides for the ultimate imposition upon such
road, by its paying to the appellant a money equivalent for
the burden left upon it otherwise, by the status created by
the judgment. The purpose of the concluding words of the
opinion was, as I understand it, to cover the idea that appel-
lant should recover in the condemnation proceedings on that
basis; that is for all damages caused to it by a change of its
property status to its pecuniary loss by appropriation of such
property to the use of respondents, including the cost to it,,
the appellant, of grading, rails, frogs, switches, etc., in view
of what is required of the junior road by the judgment^ which
requirement is left undisturbed except as indicated. The
concluding paragraph of the opinion should not be read as
requiring the commissioners, in the condemnation proceed-
ings, to award appellant compensation for the very things
the judgment requires respondents to furnish in place. That
appears plainly by reading such concluding paragraph in the
light of what precedes it.
I do not understand the court's determination goes fur-
ther than the precise situation dealt with, ♦. e. the awarding
of damages to be made by commissioners in the condemna-
tion proceedings in case of a status created as in this case.
It has nothing to do with distribution of burdens in case of
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5] AUGUST TERM, 1909. 177
State ex rel. Northern Pac R. Co. y. Railroad Commission, 140 Wi& 145.
compulsory installation of a safety device at an existing
crossing.
As already indicated, it is a mistake to suppose the con-
struction of the act of 1907 by this court is not adopted be-
cause reasonable, but because it is necessary to save the law.
It is the court's duty to adopt such reasonable construction
of a law as is necessary to avoid condemning it as unconsti-
tutional, and the one adopted here was taken as both so neces-
sary and reasonable and in accord with the legislative idea.
Again it would be a mistake to suppose there is any ques-
tion under the decision as to competency of the state, by vir-
tue of its police power, to compel the installation of safety
devices at an existing railway crossing upon reasonable con-
ditions, including an equal distribution of the burden caused
thereby as one of such conditions. But a firm maintenance
of that salutary principle does not necessitate holding that
it would be reasonable to thus burden two roads equally in
the circumstances of this case.
It may, at first blush, appear difficult in condemnation
proceedings to fix a money equivalent for one half of the bur-
den of the indefinite maintenance and operation of a cross-
ing and its safety devices^ but it seems the idea that it is
fraught with insurmountable difficulties is more imaginary
than reaL It may well be said that much more difficult
problems than that are often met with in condemnation and
other judicial proceedings. Upon proper evidence and com-
petent data, not difficult to present, human judgment can
easily encompass such a situation.
It should not be supposed that every legislative regula-
tion, which to any extent is in the field of police power, may
unquestionably be made regardless of its effect upon private
rights as regards taking property for public purposes with-
out rendering compensation therefor. There is no govern-
mental function, which, rightly understood and adminis-
tered, is more beneficial to life, liberty, and the pursuit of
Vol.140 — 12
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178 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Northern Pac. R. Co. v. Railroad Commiaaion, 140 Wis. 145.
happiness than the police power, but which, not rightly un-
derstood and administered within its constitutional limita-
tions, is more liable to be destructive of the very rights gov-
ernments are instituted to conserve. It is only in recent
years that it has come to be fully appreciated that such power
is not without constitutional limitations; that every exer-
cise of it, to be constitutional^ must answer for legitimacy at
the bar of reason enthroned in the very spirit of the funda-
mental law.
True, the police power is one of necessity. Anything
which may properly be done, referable thereto alone, so far
as it affects property rights may be done without rendering
compensation. But if every regulation, justifiable to any
extent by the police power, could be made without reference
to the power of eminent domain or any other, private rights
would be exceedingly insecure. The power of eminent do-
main and the police power are radically different. The
latter relates to r^ulation, yet its exercise may, in many in-
stances, result in a practical taking of private property for
public purposes. The former relates, in the broad view, to
any appropriation of private property for such purposes
other than by the supreme necessities of war or the power
of taxation, which is not within the field of legitimate mere
police regulation. Though exercise of the police power is
grounded on necessity and the public welfare, so is that of
either of the others. The aggregate of private wealth of
the nation, in the broad view, is the property of the nation
for public purposes, in that, in the various ways su^ested,
imder constitutional safeguards, it is subject to be laid hold
of under the powers inherent in sovereignty for such pur-
poses, sometimes by one power clone and sometimes by an-
other, and sometimes by one as the primary force with an-
other as auxiliary thereto, according to the appropriateness
of the instrumentality or instrumentalities to fit the particu-
lar situation to be dealt with. Where the purpose is legiti-
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5] AUGUST TERM, 1909. 179
State ex rel. Northern Pac. R. Co. v. Railroad Commiesion, 140 Wis. 146.
mate and the means are legitimate, in that they do not un-
duly regulate so as to unreasonably work a deprivation of
private property rights in case the burden is cast absolutely
upon proprietors, the police power alone fits the case. Where
the regulation goes beyond that point, some auxiliary power,
as the power of eminent domain, is necessary to avoid the
element of unreasonableness. In that there is no confusion
of powers.
Any supposed confusion in such a case as that last indi-
cated is imaginary rather than real. It may spring from
want of appreciation that one of the sovereign powers re-
ferred to may be, and often is, necessarily used as auxiliary
to another in order to legitimately accomplish a particular
legitimate result. If one puts his shoulder to the wheel,
supplementing the power at the pole, and by the added ele-
ment motion is produced, there is no confusion of the former
with the latter. There is simply a primary and auxiliary
force, each distinct from the other, operating to a single end.
With the absence of either the thing to be accomplished
would remain undone. These principles I deem to be fun-
damental and so forego authoritative citations to support or
illustrate them. Such is the philosophy of the law in its
scientific aspect, as I view it, and removes many of the sup-
posed mysteries of the police power, particularly as to where
it ends as regards interfering with private possessions and
the power of appropriation requiring a money equivalent be-
gins. The dividing line between the two is sometimes shad-
owy. It is less so according as we appreciate the legitimacy
of the two powers being wedded, so to speak, when necessary
in particular circumstances. The line is primarily for legis-
lative ascertainment within fimdamental limitations, and
its wisdom should prevail in any case unless manifestly
wrong beyond reasonable doubt. But whether it is or is not
wrong, in any given circumstances, is a judicial question.
That the constitutional instrumentality to decide primarily
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180 SUPREME COURT OF WISCONSIN. [Oct.
8tate ex rel. Northern Pac R. Co. v. Railroad Commission, 140 Wis. 145.
and the one to decide ultimately should each act consider-
ately and fearlessly and with becoming deference to the
other, is the concept of our system. Any difference result-
ing in the performance of duty does not rightly suggest criti-
cism of either.
We may well concede that the public in such a case as this
would be benefited by the construction and maintenance of
the safety device, but the junior road would be enriched to
the full amount it would be required to render the senior
road, in that the former could not be constructed without
the benefit of the crossing and the latter would be corre-
spondingly impoverished if it were not for the compulsory
exchange of equivalents under the power of eminent domain
as contemplated in the judgment of the court. If the legis-
lature contemplated the appropriation without such exchange,
then the regulation, it is thought, would go beyond the legiti-
mate domain of police power, and so, it is thought, it was not
80 contemplated and that this negative can reasonably be
read out of the enactment in question. The construction
given thereto in the court's judgment renders it sensible,
reasonable, constitutional, and workable.
The judgment below having left the ultimate location of
part of the burden caused by the crossing uncertain, appel-
lant rightly conceived itself to be aggrieved and so the con-
clusion was reached that it should not be mulct with costa
upon the appeal.
The points recognized or decided by the court, as I under-
stand the matter, are these :
1. The right, in the general sense, to construct the road
18 referable to the certificate of public convenience and neces-
sity under sees. 1797 — i3 to 1797—53, Stats. (Laws of
1907, ch. 454), inclusive.
2. The right to cross the track of the senior road ia ref-
erable to subd. 6, sec. 1828, Stats. (1898).
3. The right to take the property of the senior road at the
point of crossing is referable to such section.
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5] AUGUST TERM, 1909. 181
State ex rel. Great Northern R. Co. v. Railroad Commission, 140 Wis. 181.
4. Authority to locate the place of crossing is referable to
the implied power of the Eailroad Commission under sees.
1797 — 54 to 1797 — 56, inclusive, and the general spirit
of the act of 1907, superseding, by necessary inference, subd.
6, sec. 1828, Stats. (1898), on that subject.
5. The manner of constructing the road, including man-
ner of making the crossing with its accessories and the es-
tablishment of status in respect thereto, to be dealt with in
condemnation proceedings, is referable to the decision of the
Railroad Commission under sees. 1797 — 54 to 1797 — 56.
6. The manner of acquiring the property for the purposes
of the road, including that of any other road at the crossing,
is referable to sees. 1845 to 1851, inclusive, and such other
parts of ch. 87, Stats. (1898), as bear on the subject, the
proceedings to that end to be subsequent to the determina-
tion by the Railroad Commission imder sees. 1797 — 54 to
1797 — 56, inclusive.
7. The commissioners in condemnation proceedings are
required to deal with the situation created by the deter-
mination aforesaid making the o^vner of the senior road
crossed good by award of a money equivalent for siich ap-
propriation of its property rights as shall be contemplated
in view of such determination, including the cost of siLch
grading, rails, frogs, switches, and other appliances used in
constructing and maintaining the crossing, and maintaining
and operating safety appliances, as shall be preliminarily en-
tailed upon it in view of such determination.
A motion for a rehearing was denied October 5, 1909.
Statb ex rkl. Great Nobtiiebi? Railway Compant, Appellant, vs.
Railboad Commisston ok Wisconsin and others. Respondents.
March Sl'-Octoher 5, 1909,
State ex ret Northern Pacific R, Co, v. Railroad Commission, ante,
p. 145, followed.
Appeal from a judgment of the circuit court for Dane county:
E. Ray Stevens, Circuit Judge. Modified and affirmed.
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182 SUPREME COURT OF WISCONSIN. [Oct.
state ex rel. L. S. T. A T. R. Co. v. Railroad Commission, 140 Wis. 182.
For the appellant there was a brief by /. A, Mwrphy, attorney,
and W. M, Steele, of counsel, and oral argument by Louis Hanitch
and Charles Donnelly.
For the respondents there was a brief by the Attorney General for
the Railroad Commissiony by Luse, Poxcell d Luse, attorneys for the
Minneapolis, St. Paul & Sault Ste. Marie Railway Company and th&
Wisconsin d Northern Minnesota Railway Company, and by Alfred
II, Bright, of counsel; and the cause was argrued orally by Mr, L, K,
Luse and Mr. Bright,
The following opinion was filed June 3, 1909:
Kerwut, J, This case is ruled by State ex rel. Northern Pac.
R, Co. V. Railroad Commission, ante, p. 145, 121 N. W. 919.
By the Court. — ^The judgment of the court below Is modified bo a»
to affirm the order of the Railroad Commission without prejudice to
the appellant's right to recover all damages aB indicated in the
opinion in State ex rel. Northern Pac. R, Co. v. Railroad Commis-
sion, ante, p. 146, 121 N. W. 919, and as so modified is affirmed. No
costs are allowed either party upon this appeal except that req;>ond-
ents pay the clerk's feee.
WiNSLOW, C. J., and Babnes, J., dissent
A motion for a rehearing was denied October 6, 1909.
State ex rel. Laki Supebiob Tebmtnal ft Tbansfeb Railway Com-
pany, Appellant, ts. Railroad Commission of Wiboonbin and
others, Respondents.
March SI — October 5, 1909.
State ex rel. Northern Pacific R, Co, v. Railroad Commission, ignte,
p. 145, followed.
Appeal from a Judgment of the circuit court for Dane county:
E. Ray Stevens, Circuit Judge. Modified and affirmed.
For the appellant there was a brief by /. A, Murphy, attorney,
and W. M, Steele, of counsel for the Great Northern Railway Com-
pany, and oral argument by Louis Hanitch and Charles Donnelly,
For the respondents there was a brief by the Attorney General
for the Railroad Commission, by Luse, Powell d Luse, attorneys for
the Minneapolis, St. Paul A Sault Ste. Marie Railway Company and
the Wisconsin d Northern Minnesota Railway Company, and by
Alfred H, Bright, of counsel; and the cause was argued orally by
Mr, L, K, Luse and Mr. Bright.
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5] AUGUST TERM, 1909. 183
Lind V. Uniform S. A P. Co. 140 Wis. 183.
The following opinion was filed June 3, 1909:
KERwn?, J. This case Is mled by State em rel. Northern Poa
R, Co, «. Baitroad Oommiasion, ante, p. 145, 121 N. W. 919.
By the Court. — ^Tbe judgment of the court below is modified so as
to aifirm the order of the Railroad Commisaion without prejudice to
the appellant's right to recover all damages as indicated in the
opinion in State ex rel. Northern Pac. R, Co. 9, Railroad ComnUs-
sion, ante, p. 145, 121 N. W. 919, and as so modified is affirmed. No
costs are allowed either party upon this appeal except that respond-
ents pay the clerk's fees.
WiNSLOW, C. J,, and Barnes, J., dissent.
A motion for a rehearing was denied October 6, 1909.
Liin>, Administratrix, Respondent, vs. Unifoem Stave &
Package Company, Appellant
April I'—Octoher 5, 1909.
Master and servant: Death of servant: XJngwvrded opening in vat:
Statutory duty of master: Negligence: Assumption of risk:
Contributory negligence: Evidence: Questions for jury: In-
structions: Placing guards after accident: Order of proof: Bur-
den of proof: Intoxication of decedent at other times,
1. In an action for death of an employee in defendant's factory
who fell into an unguarded opening caused by the raising of
a trap door in the top of a tank of hot water, it is held upon
the evidence to have been a question for the jury whether such
opening could have been guarded by barriers or other safe-
guards without unreasonably interfering with the work which
was being carried on and which could not be performed with
the door closed.
2. Employees do net assume the risks arising from negligent failure
of the employer to surround vats containing hot liquids with
proper safeguards as required by sec. 1636/, Stats. (1898).
8. In an action for death of an employee caused by such negligence,
contributory negligence of the deceased other than assumption
of the risk may be shown and may constitute a defense.
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184f SUPIIEME COURT OF .WISCONSIN. [Oct.
Lind V. Uniform S. & P. Co. 140 Wis. 183.
4. Where In an action for death the question whether decedent was
guilty of contributory negligence as a matter of law is under
the evidence extremely close, the appellate court must place
considerable reliance upon the decision of the trial court
6. Contributory negligence of the decedent is held not to have been
conclusiyely established in this case, there being evidence from
which the Jury might infer that at the time he fell into an
opening in the top of a vat containing hot water the steam
arising therefrom was so dense that he became confused or
partially lost his way. Babnes and Marshall, JJ., dissent
€. Evidence that after the accident defendant placed guards around
the op^iing was not competent to show negligence in not hav-
ing It guarded at the time of the accident but when ottered
merely to show that It was feasible to place such guards was
competent and was properly admitted as part of plalntift's case
in chief.
7. Failure to Instruct the Jury that such evidence was no proof of
defendant's negligence was not error in the absence of a re-
quest for such instruction.
8. Contributory negligence is an affirmative defense and the burden
of establishing it is upon the defendant whether the evidence
to establish it be given by witnesses for plaintiff or for defend-
ant. Achtenhagen v. Watertown, 18 Wis. 331, distinguished.
9. In an action for death involving the question of decedent's con-
tributory negligence, evidence that he had been intoxicated on
former occasions was inadmissible.
Appeal from a judgment of the circuit court for Doug-
las county: A. J. Vinje, Circuit Judge. Affirmed.
This action was brought to recover damages for the death
of plaintiffs intestate and resulted in a verdict and judg-
ment for plaintiff, from which this appeal is taken.
On December 24, 1907, about 10 o'clock in the forenoon,
the deceased walked into an open tank of hot water at ap-
pellants plant and met his death in consequence thereof.
The tank was thirty-three feet wide and fifty-two feet long,
and was divided into three compartments, each ten feet by
fifty-two feet, and the water therein was eight feet deep.
There was no roof over the tank and it was covered with two-
inch plank. In each of the compartments and extending
lengthwise thereof there were five trap doors, each seven feet
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5] AUGUST TERM, 1909. 185
Lind V. Uniform S. & P. Co. 140 Wis. 183.
long and three feet four inches wide. These trap doors
were kept closed except when the compartment, of which
they furnished a partial covering, was being emptied or
filled. Each compartment held a day's supply of bolts for
the factory. The contents of one was being manufactured
while another was being filled, and in the third bolts were
being boiled preparatory to manufacture. The bolts were
carried from the vat into the factory by an endless chain,
which, together with a runway leading thereto, extends about
sixteen feet from the factory proper. As the bolts were be-
ing manufactured the same were pushed onto the endless
chain; those nearest the chain being first taken. As the
process of emptying the compartment continued, it was neces-
sary to keep raising the trap doors extending toward the
rear end of the vat, so as to push the blocks onto the chain.
On the morning in question the middle compartment was
being emptied, and the three trap doors therein nearest the
endless chain were open, and two men were at work in push-
ing the bolts onto the chain. The deceased stepped into the
opening farthest from the endless chain and nearest the rear
end of the vat. He had been working at the plant for six
months. His work consisted principally in rolling the bolts,
as they were sawed, into the vats, and in taking the trim-
mings and short pieces of waste from the logs as they were
cut into bolts and placing them in a pile at the rear or west
end of the vat On the morning of his injury the deceased
was engaged principally in removing the waste material.
The compartment nearest the mill was being filled and the
bolts were being carried into this portion of the vat by force
of gravity. The trap door into which the deceased fell had
been open about an hour before the accident. It was neces-
sary for the deceased in carrying away the refuse to pass
over the middle compartment and over one of the trap doors
therein. The direct line between the point from which he
took the refuse and the place where he deposited it would
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188 SUPKEME COURT OF WISCONSIN. [Oct.
Lind V. Uniform 8. A P. Co. 140 Wis. 183.
be about four feet from the open trap door. The point where
he actually stepped into the vat is not definitely established,
but the evidence tending to show that it was about seven feet
out of the direct line of travel is reasonably satisfactory and
is not disputed. The distance the refuse was carried wa&
twenty-five feet. During the hour that the trap door was
open, deceased in carrying the refuse passed by the open
space in the neighborhood of forty times and within a very
few feet of the same. He was making his return trip after
having deposited a block in the rear end of the vat when he
fell in. He was thoroughly familiar with the manner in
which the work was conducted. He and the two men em-
ployed to push the bolts onto the endless chain were the only
men employed on the top of the vat.
There was evidence tending to show that at times there
was considerable steam issuing from the openings, occasioned
by the lifting of the trap doors, as well as some steam escap-
ing through the cracks. At times it appeared to be quite
dense and would then clear away for a short interval. The
evidence leaves the impression that, while there was more or
less steam escaping all the time, there were times when the
vat was comparatively free from it; while at other times it
apparently settled and beclouded the vat.
Appellant urges that the court erred (1) in refusing ta
grant a nonsuit; (2) in refusing to direct a verdict; (3) in
instructing the jury; (4) in ruling on evidence; (5) in re-
fusing to change the answers of the jury to two questions in
the special verdict; (6) in refusing a new trial; and (7) in
ordering judgment for respondent. •
For the appellant there was a brief by Lamoreux, Shea &
Gate, and oral argument by (7. A. Lamoreux.
O, N. Risjord, for the respondent.
The following opinion was filed April 20, 1909:
Barnes, J. This appeal involves the following questions :
(1) Was the defendant negligent? (2) Was decedent guilty
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5] AUGUST TERM, 1909. 18T
Lind V. Uniform S. & P. CJo. 140 Wis. 183.
of contributory negligence? (3) Was it error to permit
the plaintiff to show that the openings in the top of the vat
were guarded after the accident ? (4) Did the court err in
charging the jury that the burden of proof was upon the de-
fendant to establish the defense of contributory negligence?
1. The only ground of negligence on the part of the defend-
ant that it is claimed existed was its failure to surround the
open spaces, left in the top of the vat by the raising of the
trap doors therein, with suitable barriers or safeguards for
the protection of its employees, as required by sec 1636;,
Stats. (1898). There can be little doubt that the open un-
guarded trap door created a situation of danger for em-
ployees working around the opening, and it was a question
for the jury to determine on the evidence whether such open-
ings could be guarded without imreasonably interfering with-
the work that was being carried on, and which could not be
performed with the doors closed. Van de Bogart v. Mari-
nette & M. P. Co. 132 Wis. 367, 112 N. W. 443 ; Kreider
V. Wis. River P. & P. Co. 110 Wis. 645, 657, 86 N. W. 662.
In the latter case it is said that most of the cases arising un-
der sec. 1636/, where there is a failure to guard, leave the
question of breach of duty on the part of the employer to the
jury, unless there is no room for conflicting inferences. This
court cannot hold as a matter of law that there was not sufii-
cient evidence of negligence on the part of the defendant to
carry the case to the jury. The jury having found that the
defendant was n^ligent in failing to provide guards as re-
quired by the statute referred to, the question of assumption
of hazard by the deceased is not in the case, although other
phases of contributory negligence might be shown and might *
constitute a defense. Klotz v. Power & M. M. Co. 136 Wis.
107, lie N. W. 770.
2. The deceased had been employed on top of this vat for
six months and had passed by and a short distance from the
open trap door forty or fifty times within the hour imme-
diately preceding the accident, so that he was thoroughljr
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188 SUPREME COUET OF WISCONSIN. [Oct.
Lind V. Uniform 8. A P. Ck>. 140 Wis. 183,
familiar with his surroundings and with the fact that the
trap door was open and with the danger to be apprehended
therefrom. The question as to whether the deceased should
not be held to have been guilty of contributory negligence
as a matter of law is extremely close, and is therefore one on
which considerable reliance must be placed upon the decision
of the trial court who heard the testimony. Powell v. Ash-
land I. & 8. Co. 98 Wis. 35, 73 N. W. 673 ; Bohn v. Racine,
119 Wis. 341, 343, 96 N. W. 813; Nicoud v. Wagner, 106
Wis. 67, 72, 81 N. W. 999 ; Collins v. Janesville, 117 Wis.
415, 423, 94 N. W. 309. This court is of the opinion that
there was evidence from which the jury might infer that the
steam was so dense that the deceased became confused or
partially lost his way in making his return trip, and walked
into the opening without being able to see it because of the
steam, or that, because of his inability to see, he deviated
from his regular course of travel, believing, however, that
he was pursuing it, and that it should not be here held as a
matter of law that the deceased failed to exercise ordinary
care. The writer of this opinion does not concur in this
view, and thinks that the court should have directed a ver-
dict for the defendant because decedent's negligence was con-
clusively established.
3. The plaintiff, before resting her case, was permitted to
show that after the accident the defendant placed guards
around the opening caused by the opening of the trap doors.
As proof tending to show negligence this evidence was in-
competent and its receipt would be reversible error. Cas-
telle V. Landwehr, 28 Wis. 622; Lang v. Sanger, 76 Wis.
71, 44 N. W. 1095 ; Anderson v. C, St. P., M. & 0. R. Co.
87 Wis. 195, 68 N. W. 79; Kreider v. Wis. River P. & P.
Co. 110 Wis. 645, 86 N. W. 662 ; Odegard v. North Wis. L.
Co. 130 Wis. 659, 110 N. W. 809. A jury would very nat-
urally construe the action of the defendant in placing guards
in position after the accident as an admission on its part
that the dangerous place was not properly or sufficiently
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5] AUGUST TERM, 1909. 189
Lind V. Uniform a & P. Co. 140 Wis. 183.
guarded before. Such an inference might be altogether
wrong, because, as is said in the cases cited, if such an in-
ference were permissible, "the fact that a person at a cer-
tain time commences using and exercising extraordinary care
in a given case may be used against him to prove that before
such time he had failed to use reasonable and ordinary care.''
CasteUo v, Landwehr, supra; Lang v. Sanger, supra; Ander-
son V. C.J 8t P., M. & 0. -B. Co., supra. Proof that an al-
leged danger was guarded against after an accident hap-
pened might well be considered by the jury as convincing
evidence of existing negligence before the repair was made.
The accuracy of this rule is not questioned by the respond-
ent, but it is argued that it is not applicable here because the
evidence was offered, not to show negligence, but to show
that it was feasible to place a guard around the opening. In
Redepenning v. Rock, 136 Wis. 372, 117 K W. 806, this
court held that evidence of subsequent repair to a highway
might be offered to rebut the contention of the defendant
town that the notice of injury served was so indefinite as to
the location of the defect complained of that the town was
misled by it. We entertain no doubt that, if the defendant
had offered proof to show that it was not practicable to guard
the open space in the vat, such evidence might be rebutted
by showing that defendant had in fact guarded it. The evi-
dence offered tended to show that the opening into which de-
cedent fell might have been guarded. This fact might just
as well have been proved by other evidence, and the real ques-
tion is, Should the plaintiff have been permitted to offer the
evidence as part of her proof before resting her case, it being
admittedly incompetent for some purposes! Under the de-
cisions in Cfnmdy v. JanesvUle, 84 Wis. 574, 578, 54 N. W.
1085, and BaUimore £ P. R. Co. v. Cumberland, 176 U. S.
232, 236, we shall have to hold that the evidence offered was
competent, the purpose of the offer being restricted. In the
Grundy Case, as here, the objectionable evidence was intro-
duced as part of plaintiff's case in chief, as an examination
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190 SUPREME COURT OF WISCONSIN. [Oct.
Lind T. Uniform 8. & P. Co. 140 Wii. 183.
of the printed case shows. Had defendant requested the
court to charge the jury that such evidence was no proof of
negligence on its part, it would have been error to refuse to
so charge. No request having been made, it was not error
for the court to omit the giving of any instruction on the
subject. McCoy v. Milwaukee St. B. Co. 88 Wis. 56, 69
N. W. 463.
4. Contributory n^ligence was an affirmative defense, and
there was no error in charging the jury that the burden of
proof was on the defendant to establish it by a preponder-
ance of the evidence. Gill v. Uomrighausen, 79 Wis. 634,
48 N. W. 862; Hoye v. C. & N. W. R. Co. 67 Wis. 1, 29
N. W. 646; Kelly v. C. & N. W. R. Co. 60 Wis. 480, 19
N. W. 621; Randall v. N. W. Tel. Co. 64 Wis. 140, 11
N. W. 419. It is immaterial whether the evidence establish-
ing such negligence is given by the witnesses for the plaint-
iff or the defendant The case of Achtenhagen v. Waier-
tovm, 18 Wis. 331, relied on by appellant as establishing
a different rule, simply holds that where the evidence offered
in plaintiff's behalf raises an inference of contributory neg-
ligence he cannot recover unless he establishes a prima facie
case showing that he was not negligent
We think there was no error committed in refusing to ad-
mit evidence showing that the decedent had been intoxicated
on former occasions. The evidence tending to show that he
was under the influence of stimulants on the morning of the
accident is very shadowy.
By ike Court. — Judgment affirmed.
Marshall, J. {dissenting in part), I dissent from the
decision that the deceased was not guilty of contributory
negligence as a matter of law. I concur with the writer of
the court's opinion on that subject
A motion for a rehearing was denied October 5, 1909.
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5] AUGUST TERM, 1909. 191
Bardon t. O'Brien, 140 Wis. 191.
Babdon, Appellant, vs. O'Brien, Eespondent
AprU 1— October 5, 1909.
Deedi: Oonsiructian: Reservation or exception: QrovAng timiber.
In a conveyance of land, a clause "reserving the pine and cedar
timber now growing or being thereon and the right to cut and
remove the same" is an exception, not a reservation. The tim-
ber remains the property of the grantor, together with a right
in so much of the soil as is necessary to sustain it, and he is
not bound to remove it within a reasonable time.
Appeal from a judgment of the circuit court for Douglas
<jounty: A. J. Vinje, Circuit Judge. Reversed.
This action was brought to recover the value of pine and
<;edar timber which had been cut by the defendant from the
X E. i of section 23, town 48 N., range 10 W., in Douglas
county, and which the plaintiff claimed he owned under a
reservation in a deed made by him to Michael Murray, dated
January 10, 1894, which reservation reads as follows: "Re-
serving the pine and cedar timber now growing or being
thereon and the right to cut and remove the same." On
January 11, 1894, Murray conveyed an undivided two-thirds
of the land to one Howard, excepting the pine and cedar tim-
ber and the right to cut and remove the same, and on Febru-
ary 12, 1894, he quitclaimed to Howard an undivided two-
thirds without reservation. The defendant claims under
mesne conveyances from Howard and wife to one E. H. Lee,
and by timber deed from Lee dated November 4, 1907. No
conveyance of the undivided one-third interest remaining in
Murray was shown. On August 3, 1898, the plaintiff sold
to William J. Conness such pine timber as Conness should
cut and remove from said land by May 1, 1901. During the
winters of 1898-99 and 1899-1900 one Smith cut and re-
moved certain pine from the land under the Conness permit.
None of the cedar and no other pine than that taken by Smith
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192 SUPREME COURT OF WISCONSIN [Oct.
Bardon v. O'Brien, 140 Wis. 191.
was sold by the plaintiff or removed under sale or permit
from him. The court found as follows:
"(1) That on and prior to January 10, 1894, the plaint-
iff was the owner of the N. E. i of section 23, township 48
N., range 10 W., in Douglas county, Wisconsin, and of all
of the timber thereon; that on the 10th day of January,
1894, the plaintiff conveyed said land to one Michael Mur-
ray hy warranty deed containing the following reservation:
'reserving the pine and cedar timber now growing and being
thereon and the right to cut and remove the same;' that the
defendant, through mesne conveyances from and imder Mur-
ray and prior to the cutting of any timber by him, became
the owner of all of the timber upon said land without actual
notice or knowledge of any claim on the part of the plaint-
iff under said reservation.
"(2) The court finds that the defendant in the early part
of the year 1907, in the winter, and in the following winter
in the early part of the year 1908, cut and removed from the
N. E. i of section 23, in township 48 N., range 10 W., pine
and cedar timber of the value of $375.
"(3) That the plaintiff did not say to John G. Howard
at any time that he had exercised his rights under the reser-
vation, had sold or cut the timber under said reservation, or
anything in substance like this, and did not have the con-
versation with the witness John G. Howard as testified by
him.
"(4) That in the month of August, 1898, the plaintiff
sold to one Conness all of the pine timber upon tiie land
above described which should be cut within a period of two
years from date of such sale, and thereafter said Conness re-
sold the same to one Smith, and said Smith thereafter, and
in the winter of 1898 and 1899, cut over the land for the
pine timber, taking off all of the pine timber which, in the
usual course of business at that time, was deemed merchant-
able for lumbering purposes ; that except as above the plaint-
iff has not sold or cut, or permitted Uie cutting of, any of
the timber from said land.
"(5) That the plaintiff did not, except as to the pine tim-
ber sold to Conness, cut or remove, or attempt to cut or re-
move, the timber mentioned in the reservation, and that a
reasonable time for the cutting and removing of the timber
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6] AUGUST TEEM, 1909. 193
Bardon v. O'Brien, 140 Wis. 191.
under the reservation had expired before the defendant pur-
chased the timber upon said lands and before he cut or re-
moved the timber or any part thereof.
"(a) That the plaintiffs deed to Michael Murray, con-
taining the reservation of timber as set forth in the answer
herein, was duly recorded in the office of the register of
deeds for Douglas county, Wisconsin, on the 12th day of
January, 1894, in Book 12 of Deeds, on page 542.
"(b) That all of the pine and cedar timber cut and re-
moved by the defendant from said land was situated or grow-
ing thereon at the time of said reservation, and that none of
the cedar timber situated or growing upon said land at the
time of said reservation was ever cut or removed by the
plaintiff or by any one claiming under him under said res-
ervation.
"(c) That said land at all times remained vacant and un-
occupied, except as it was occupied for logging purposes by
one Smith under the Conness permit in the winter of
1898-99, and temporarily by the defendant in the winters of
1906-7 and 1907-8, in ^e removal of the timber thereon.
"(d) That said pine and cedar timber, while remaining on
the land, did not interfere with any proposed or attempted
use of the land by the owners thereof.
"(e) That said pine and cedar timber so cut by the de-
fendant constituted a very small part of the total timber on
said land, and could not have been removed economically if
lo^ed separately from other timber.
"(f) That no logging operations had taken place on said
land between the removal of certain pine under the Conness
permit and the logging by the defendant in the winters afore-
said.
"(g) That there was no oral or written agreement at any
time between plaintiff and said Murray, or those claiming
under the latter, relating to the removal of the timber by
plaintiff, other than such as is contained in the deed to said
Murray.
"(h) That the plaintiff was never notified or requested by
the owners of said land to remove said timber.^'
And as conclusions of law the court found :
"(1) That the proper construction of the reservation in the
conveyance by the plaintiff to Michael Murray on January
VoT. 140—13
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194: SUPREME COURT OF WISCONSIN. [Oct.
Bardon t. O'Brien, 140 Wis. 191.
10, 1894, in the light of the circumstances and in accord-
ance with the intention of the parties, is that the plaintiff
reserved aU the pine and cedar timber npon said land which
he should cut and remove within a reasonable time after such
conveyance, and that^ a reasonable time having expired prior
to the cutting of any of the timber by the defendant, the
plaintiff had no title thereto or interest therein.
"(2) That the plaintiff is not estopped from asserting
tide to the timber under said reservation by reason of any
conversation with John G. Howard or any other person.
"(3) That the plaintiff is not entitled to recover in this
action, but the defendant is entitled to judgment dismissing
the action upon the merits, with costs/'
Appellant filed exceptions to the findings of fact and con-
clusions of law, and judgment was entered in favor of the
defendant, dismissing the action upon the merits, from which
this appeal was taken.
For the appellant there was a brief by W. E. Pickering
and W. B. Kellogg, and oral argument by Mr. Kellogg.
For the respondent there was a brief by Luse, Powell £
Lose, and oral argument by L. K. Lose.
The following opinion was filed April 20, 1909 :
Kebwiw, J. The vital question in this case is whether,
under the clause in the deed reserving the pine and cedar
timber, the grantor was bound to remove it within a reason-
able time. There is considerable conflict of authority on the
question, many cases holding that such a clause amoimts to
a reservation and not an exception, and that the timber re-
served is only such as shall be removed within a reasonable
time, while others hold that such a clause amounts to an ex-
ception of the timber from the grant. The phrase "except-
ing and reserving'' is commonly used in deeds, and is some-
times held to amount to an exception of part of the prop-
erty which is the subject of conveyance, and sometimes to a
reservation out of the estate conveyed, depending largely
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5] AUGUST TERM, 1909. 195
Bardon v. O'Brien, 140 Wis. 191.
upon liie intention of the parties, the subject matter of the
grant, whether the thing excepted or reserved is a thing
newly created out of the lands and tenements granted, or
part of the property in existence and excepted therefrom.
Prichard v. Lewis, 125 Wis. 604, 104 N". W. 989. Many
cases are cited by respondent from other states holding that,
under reservations similar to the one here, the timber was
not excepted, but only the right to enter and cut it, and that
when no time limit is specified for the entry and cutting the
law implies that a reasonable- time was intended. But the
doctrine of this court in RicK v. Zeilsdorff, 22 Wis. 544, is
noj; without support in other jurisdictions. Knotts v. Hy-
dride, 12 Rich. Law, 814; Sears v. Acherman, 138 Cal. 683,
72 Pac. 171; WUtaker v. Browrh, 46 Pa. St. 197; Winthrop
V. FairbanJcs, 41 Me. 307; Clap v. Draper, 4 Mass. 266;
NoHh Ga. Co. v. Bebee, 128 Ga. 563, 57 S. E. 873 ; Starr v.
Child, 5 Denio, 599; State v. Wilson, 42 Me. 9; Craig v.
WeUs, 11 N. Y. 315.
At an early day this court, in Rich v. Zeilsdorff, supra,
held that a clause in a deed reserving to the grantor the tim-
ber with the right to enter and cut it is an exception of the
timber with sufficient interest in the soil to sustain it. In
that case the reservation was, "reserving the right to cut and
remove all the pine timber or trees upon said premises and
half of all cedar trees upon said premises, and the right is
hereby reserved by the party of the first part to enter upon
said lands at any time within two years next succeeding the
date of this instrument for the purpose of cutting and re-
moving the trees or timber so reserved." The opinion is
rested upon the fact that the right to cut and remove only is
reserved and not the timber. The distinction between an
exception and a reservation is discussed, and the court said :
"A reservation is always of something taken back out of
that which is clearly granted, while an exception is some
part of the estate not granted at all."
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196 SUPREME COURT OF WISCONSIN. [Oct.
Bardon v. O'Brien, 140 Wis. 191.
And it is held that where the timber is reserved it is an
exception, since the timber is part of the realty and would
have passed to the grantee but for the exception, and that the
property in the timber continues in the grantor, with the
right in so much of the soil as is necessary to sustain it In
the Rich Case this court draws the distinction between a case
where the timber is reserved and the right to cut and remove
it, and holds that where the timber is reserved the reserva-
tion is an exception, since the thing reserved is a part of the
realty. This doctrine was again stated and approved fa
Williams v. Jones, 131 Wis. 361, 111 N. W. 605, which case
was approved in the late case of Western L. & G. Co, v* Cop-
per River L. Co. 138 Wis. 404, 120 N. W. 277,
It seems clear, therefore, that a reservation of timber in a
deed similar to the one before us, under the decisions of this
court, amounts to an exception of the timber from the grant.
Many of the authorities cited by counsel for respondent sup-
port his contention, namely, that reservations similar to the
one in the instant case have been held to reserve only such
timber' as should be cut within a reasonable time. But we
think this court is committed to the doctrine that such a res-
ervation of timber amounts to an exception from the grant
of the timber thus reserved, and that the rule should not now
be departed from. We must therefore hold that the pine and
cedar timber was excepted from the grant and remained the
property of the plaintiff, and therefore he was entitled to
judgment.
By the Court. — ^The judgment of the court below is re-
versed, and the cause remanded with instructions to render
judgment for the plaintiff for $376 and costs.
DoDQE, SiEOBECZEB, and TcMLiN, JJ., dissent
A motion for a rehearing was denied October 5, 1909.
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6] AUGUST TERM, 1909. 197
Tilton T. J. L. Gates Land Co. 140 Wis. 197.
TiLTOW and another, Respondents, vs. J. L. Gates Land
Company and others, Appellants,
ApHl 21-^ctol>er 5, 1909.
AppeaJ: Revieto: Immaterial errors: Right to review ty party not
appealing: Findings, when disturbed: Entire contracts of em-
ployment: Brokers: Recovery of commissions: Breach of con-
tract: Wrongful attachment of land: Measure of damages:
i Punitory damages,
1. Where, In an action to recover commissions, it appeared that
certain commissions became due before the trial, and the sales
on which they were based were admitted without controversy
as to the amount, objection that the commissions were not due
at the time the action was commenced is technical and error
in their allowance should be disregarded under sec. 2S29, Stats.
(1898).
2. The supreme court cannot inquire into alleged errors at the in-
stance of a respondent who has not appealed from the Judg-
ment nor filed •xceptions to the rulings alleged to be erroneous.
S. Where there is evidence to support a finding, and the finding is
not clearly against the preponderance of the evidence, it will
not be set aside.
4. A contract for commissions "to become due on one-quarter pay-
ment of the selling price of any piece of land sold" is appor-
tionable and not entire, and under it whenever a payment is
made amounting to twenty-five per cent, or more of the selling
price of a tract of land, the commission becomes not only due
but payable.
5. If a contract of employment In for a term and is silent as to the
time of payment, although the rate of compensation is at so
much a day, week, or month, it is entire and indivisible and
fuU performance must precede a right of recovery, in the ab-
sence of circumstances showing that the contract was not un-
derstood by the parties as entire; but if the contract contains
language which obligates the employer to make partial pay-
ments of compensation it is divisible and action may be main-
tained on instalments aa they become due before performance
Is completed.
€. Where the sufllciency of a complaint was not challenged by gen-
eral demurrer, and the true contract of the parties, set up in
the answer but imperfectly set up in the complaint, was es-
tablished at the trial, and the parties litigated the issues arls-
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198 SUPREME COURT OF WISCONSIN. [Oct.
Tilton V. J. L. Gates Land Co. 140 Wis. 197.
lug out of such contract, error, if any, in overruling a de-
murrer ore tenus to the complaint oh the ground that the im-
perfectly recited contract showed that plaintifTs had not per-
formed it, should he disregarded under sec. 2S29, Stats. (1S98).
7. An owner having breached his contract to pay to brokers in-
stalments of commissions as lands were sold, the brokers are
relieved from continuing to make sales and are entitled to com-
missions on sales made, although there was no showing that
the brokers were prevented from making further sales or were
hindered in performance by the owner's refusal to make pay-
ments as agreed.
8. An attachment of land does not deprive the owner of its use,
occupancy, or enjoyment, except that he may be unable to sell
until the attachment is dissolved; and interest on the value
of the land is not th^ basis for ascertainment of the damages
suffered in consequence of the attachment
9. Compensatory damages allowed because of a wrongful attach-
ment should not exceed such actual damages as are the natural
and proximate result or consequence of the wrongful act in
suing out the attachment
10. Punitory damages are not assessable as matter of right, and the
question of their allowance or disallowance is one for trial
courts and Juries to pass upon. The supreme court will not
reverse a Judgment for failure to award such damages, nor will
it undertake to make an assessment thereof.
Appeal from a judgment of the circuit court for Clark
county: Chas. M. Webb, Judge. Modified and affirmed.
The material part of the complaint in the action alleged
that on or about March 22, 1900, the plaintiff Lester Tilion
entered into a contract with the defendants, whereby said
plaintiff was employed to show prospective purchasers such
lands as either of said defendants should require him to show,
and that defendants agreed to pay for such services, in the
event of a sale being made of any lands in Clark county
which the said plaintiff should be called upon to show pro-
spective purchasers, a commission of five per cent, of the sell-
ing price of the land as compensation for his services and ex-
penses if the purchaser had been procured through defend-
ants ©r their agents or employees, and ten per cent, of such
selling price on sales made through the efforts of the plaintiff
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5] AUGUST TEEM, 1909. 199
Tilton V. J. L. Gates Land Co. 140 Wis. 197.
withont aid from the defendants in procuring the buyer;
that thereafter said Tilton formed a copartnership with his
coplaintiff, Roherts, who assisted in carrying out said con-
tract with the knowledge and consent of defendants; that
plaintiffs sold lands pursuant to such agreement^ and earned
as commissions on account of such sales the amount of $6,000
over and above setoffs ; and that plaintiffs did and performed
all of the conditions of the contract on their part Judg-
ment was demanded for $6,000 upon the cause of action
stated. A second cause of action was set up, but is not in-
volved on this appeal.
The portion of the answer material, in so far as the ques-
tions presented on this appeal are concerned, sets forth that
plaintiffs breached their contract by failing to forward to
defendants moneys collected and notes received on land sales,
and by failing to work exclusively for defendants in selling
their lands^ all of which they were required by said contract
to do. For a first counterclaim the defendants set forth the
various breaches of the contract complained of, and averred
that by reason thereof they suffered damages to the amount
of $30,000. As a second counterclaim the defendants set
forth that the copartnership between the plaintiffs was
formed July 16, 1900, and that on such date the account be-
tween the plaintiff Tilton and the defendants was stated, and
it was agreed that there was then due defendants $3,036.49,
which sum the plaintiffs, for a valuable consideration, agreed
to pay the defendants. Furthermore, that the plaintiffs
failed to account for moneys and notes coming into their
hands as agents, and sold lands other than those in which
defendants were interested, and induced prospective cus-
tomers, sent to Clark county by the defendants at their ex-
pense, to buy lands in which defendants had no interest.
Certain items of advances made by defendants to plaintiffs
were also set forth as part of the counterclaim. The defend-
ants' damages on the second counterclaim are placed at
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200 SUPEEME COURT OF WISCONSIN. [Oct.
Tilton V. J. L. Gates Land Co. 140 Wis. 197.
$5,667.47, which sum includes the amount of the allied ac-
count stated.
For the most part the reply consists of denials of the fore-
going allegations of the answer. It admitted, however, that
by virtue of the contract the plaintiffs were obliged to work
exclusively for the defendants, but alleged a subsequent modi-
fication of such contract, by the terms of which plaintiffs
were permitted to make such sales as they did make of lands
belonging to paorties other than the defendants.
The case was referred to a referee to hear, try, and deter-
mine. The referee found, among other things, (1) that
after the written contract (which consisted of two letters
passing between the parties) was made it was so modified that
plaintiffs were authorized to sell other lands than those of the
defendants, where the prospective purchasers refused to buy
defendants' lands; (2) that plaintiffs made sales for defend-
ants under said contract, upon which sales they were entitled
to commissions amounting to $5,275.95; (3) that there was
paid plaintiffs on account of their services $806.47, and no
more; (4) that plaintiffs performed all the terms and condi-
tions of their contract; (5) that plaintiffs were justified in
refusing to continue work under the contract by reason of the
failure and refusal of the defendants to pay pastrdue com-
missions for services thereunder, and that defendants were
not entitled to any damages because of plaintiffs' refusal to
continue work; (6) that defendants failed to sustain the al-
legations of their second counterclaim; (7) that the attach-
ment levied in this action upon the defendants' property was
not levied maliciously, and that defendants suffered no dam-
ages therefrom other than the costs and expenses incurred for
counsel fees and disbursements in procuring the dissolution
of the attachment, which damages were found to be $500.
The referee found as a conclusion of law that the plaintiffs
were entitled to judgment for $3,911.50, with interest and
costs.
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6] AUGUST TERM, 1909. 201
Tilton y. J. L. Gates Land Co. 140 Wis. 197.
The defendants moved the court to vacate certain portions
of the referee's report and to modify other portions thereof,
and for judgment upon the report as modified. The plaint-
iffs likewise moved to modify the report in certain particu-
lars and for judgment thereon as modified. The circuit
judge disallowed one item of commission amounting to $120
which had been allowed by the referee, and allowed another
item of commission which had been disallowed by the referee,
amounting to $300. The total payments made by the de-
fendants to the plaintiffs or either of them after the contract
was made amounted to $2,806.81. This sum was also al-
lowed defendants by the court as a payment upon the trans-
action sued on. The referee disallowed a large portion of
this amount because he held that the defendants were in-
debted to the plaintiff Tilton in a large amount of money for
services rendered prior to the 22d of March, 1900, when the
written contract was made, and offset a portion of the pay-
ments made after that date against the indebtedness which
he found existed at that time. No other modifications were
made in the referee's report by the court, and judgment was
entered in plaintiffs' favor for $2,426 damages, besides in-
terest and costs, from which judgment defendants appeal.
For the appellants there was a brief by Winkler, Flanders,
Bottum dc Fawsett, attorneys, and L. M. Sturdevant and
James 0. Flanders, of counsel, and oral argument by Mr.
Flanders.
For the respondents there was a brief by Blatchley & Oil-
hertson, attorneys, and F. T. Tucker and Homer C. Clark,
of counsel, and oral argument by Mr. A. H. Blatchley and
Mr. Clark,
The following opinion was filed May 11, 1909:
Basites, J. Numerous errors of fact and of law are as-
signed. Those involving questions of fact can be grouped
under three heads: (1) Erroneous allowance of commissions
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203 SUPREME COURT OF WISCONSIN. [Oct.
Tilton V. J. L. Gates Land Co. 140 Wis. 197.
not earned or due when suit was commenced; (2) failure to
award damages against the plaintiffs for breaches of their
contract, which it is claimed were established on the trial;
and (3) refusal to hold that there was an account stated be-
tween the parties on July 16, 1900. The errors involving
questions of law that it is deemed essential to discuss in view
of the conclusions reached on questions of fact are: (1) Was
a cause of action stated in the complaint? (2) Were plaint-
iffs justified in abandoning their contract before its expi-
ration? (3) What was the measure of defendants' com-
pensatory damages because of the wrongful attachment?
(4) Should punitory damages have been awarded defend-
ants because of malice on the part of the plaintiffs in mak-
ing the attachment?
With reference to questions of fact little in the way of
discussion need be indulged in. A statement of the con-
clusions reached should suflBce. The record, containing over
1,400 pages, affords abundant opportunity for a lengthy
opinion, but we fail to see where discussion would accom-
plish any useful purpose.
1. Commissions were allowed plaintiffs amounting to $202^
on account of sales, where such commissions were not due at
the time the action was commenced by reason of the neces-
sary amount not having been paid on the purchase price of
the lands sold. These commissions, however, became due
and payable long before the trial of the action. The fact
that the sales were made was admitted by the defendants on
the trial, and there can be no controversy about the amoimt
due on account of the same. We think that imder the facts
disclosed the objection is technical and the error is imma-
terial, and should be disregarded under sec 2829, Stats.
(1898), and the plaintiffs should be permitted to recover the
amount of the items.
Commissions were erroneously allowed on sales to Henry
Bentz, Charles Oleson, and William Elass, amounting to
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5] AUGUST TERM, 1909. 203
Tilton V. J. L. Gates Land Co. 140 Wis. 197.
$100. We find no testimony in the record to sustain the al-
lowance of these items of commission, and respondents' coun-
sel does not point out any evidence that would warrant the
allowance. The same is true of an item of $100 commission
allowed on a sale to Greorge Reitz. It seems quite apparent
that there is a duplicate allowance of commission amounting
to $100 on a single sale covering the same land; one allow-
ance being made on account of a sale to Kuhn & Reitz, and
the other because of the sale of the same land to Qeorge Reitz.
The evidence is reasonably satisfactory that the only sale
made was to the firm, and it does not appear to be disputed.
In reference to another item of commission amounting to-
$35, which it is urged was erroneously allowed on a sale to
J. J. Kurtz, there is a scintilla of evidence in the record to
sustain the finding, in that the plaintiff Tilton testified that
he was entitled to the commission. He does not, however,
deny the facts, which were testified to in behalf of the defend-
ants, which show satisfactorily that plaintiffs were not en-
titled to the allowance. It follows that items of commission
amounting to $235 were erroneously allowed and included
in the judgment
As a sort of an equitable offset to these items, counsel for
the plaintiffs urge that certain items of commission amount-
ing to over $400, and to which plaintiffs were clearly en-
titled under the testimony, were disallowed and should be
offset against the errors committed against the defendants.
The plaintiffs do not appeal from the judgment, and neither
have they filed any exceptions to the alleged errors which
the referee and the court committed against them. With
the record in this condition, we fail to see how the court can
inquire into the erroneous disallowance of commissions to
which plaintiffs were entitled.
2. The appellants insist that the respondents violated their
contract by levying an attachment on the appellants' prop-
erty; by making threats to prevent sales before and after
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204 SUPREME COURT OF WISCONSIN. [Oct.
lilton y. J. L. Gates Land Ck>. 140 Wis. 197.
the levy; by inducing prospective buyers to purchase lands
other than those of the appellants; by circulating reports
that appellants were selling lands to which they had no title ;
by informing customers that some of the appellants' lands
were no good; by maliciously attaching 7,240 acres of land
worth over $60,000 to satisfy the claim sued on amounting
to $6,000; and by preventing sales of land being made by
reason of the attachment. A large amount of damages is
claimed in one of the coimterclaims interposed by reason of
the aforesaid acts. The findings of fact on these various
subjects are against appellants. As to some of the breaches
complained of, we think they were quite conclusively estab-
lished by the evidence. As to those which are so estab-
lished, we are unable to find that any legitimate items of
damage were proven.
8. There is sufiicient evidence to support the finding of
the referee that no account was stated between the parties
in July, 1900. The same is true of the finding to the effect
that defendants consented to a modification of the written
agreement so as to permit the plaintiffs to negotiate sales of
improved farm lands where they were imable to sell the wild
lands of the defendants. To our minds the evidence is
neither clear nor satisfactory in support of the finding that
plaintiffs were authorized to sell wild lands other than those
of the defendants, and it is altogether improbable. The
evidence is conclusive that at least two such sales were made,
and we should have been better satisfied had the finding been
that plaintiffs breached their contract in this regard. How-
ever, there is evidence to support the finding made, and it is
not so clearly against the preponderance of evidence that it
should be set aside. Under all the circumstances disclosed
by the evidence, the damages recoverable for the breach, if
one existed, might well have been found to be only nominal.
4. It is urged that the contract as established on the trial
is entire, and that there was nothing due plaintiffs there-
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5] AUGUST TERM, 1909. 205
Tilton V. J. L. Gates Lend Co, 140 Wis. 197.
under until the expiration of one year from its date, and that
the plaintiffs, having abandoned performance before the year
expired, cannot recover. The contract, after providing the
amount of commission that should be paid on sales as made,
also recited that such commissions were "to become due on
one-quarter payment of the selling price of any piece of land
sold.'' We think this language, as used in this particular
contract, is plain and unequivocal, and means that, when-
ever a payment was made amounting to twenty-five per cent
or more of the selling price of the tract of land, the commis-
sions on the sale would not only become due, but would also
become payable to the plaintiffs. The plaintiffs evidently
so understood the language, and the defendants from time to
time made payments which would indicate, although perhaps
not conclusively establish, that they placed the same construc-
tion thereon. If there is any doubt upon the point, it is
really eliminated by testimony given by the officers of the
defendant companies on the witness stand, which unmistak-
ably showed that their construction of this particular clause
was not different from that of the plaintiffs.
The distinction between an entire and an apportionable
contract is pointed out in Hildebra/nd v. Am. F. A. Co. 109
Wis. 171, 85 K W. 268, where the rule as stated in Wood
on Master and Servant (§ 84) is quoted and appror^ed in the
following language:
" 'If the contract is for a term, although the rate of com-
pensation is at so much a day, week, or month, yet, if the
contract is silent as to the time of payment, it is entire and
indivisible, and full performance must precede a right of
recovery,' in the absence of circumstances showing that the
contract was not understood by the parties as entira"
If, however, the contract contains language which obligates
the employer to make partial payments of compensation, then
it is divisible, and action may be maintained on instalments
as they become due before performance is completed. La
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^06 SUPEEME COURT OF WISCONSIN. [Oct.
Tilton v. J. L. Qatee Land Co. 140 Wis. 197.
€oursier v. Russell, 82 Wis. 265, 52 K W. 176 ; Clarh v.
Clifford, 25 Wis. 597.
It is urged, however, that the contract established on the
trial was not the contract which was made part of the com-
plaint in this action, there having been omitted from the copy
annexed to the complaint the words above quoted, and that,
while the complaint in terms alleged performance on the part
of the plaintiffs, still the contract which was made a part
thereof affirmatively showed that plaintiffs had not per-
formed, and that therefore the demurrer ore terms should
have been sustained. Under the decisions of this court in
the cases of Ooodwin v. Merrill, 13 Wis. 658, and Clarh v.
Clifford, 25 Wis. 597, we think that even the contract an-
nexed to the complaint was an apportionable contract The
appellants rely on the cases of Hildebrand v. Am. F. A. Co.
109 Wis. 171, 85 K W. 268 ; Widmm v. Oay, 104 Wis. 277,
80 N. W. 450; Qliddev, v. Meyer, 110 Wis. 1, 6, 85 N. W.
656; Koplitz v. Powell, 56 Wis. 671, 14 N. W. 831; Dief en-
hack V. 8ta/rk, 56 Wis. 462, 14 N. W. 621 ; Jennings v. Lyons,
39 Wis. 553; Oreen v. Hanson, 89 Wis. 597, 62 K W.
408 ; McDonald v. Bryant, 73 Wis. 20, 40 N. W. 806 ; Mani-
towoc 8. B. Works v. Manitowoc O. Co. 120 Wis. 1, 97 K W.
515; Williams v. Thrall, 101 Wis. 337, 76 N. W. 599;
Warehouse £ B. 8. Co. v. Galvin, 96 Wis. 523, 71 N. W.
804; Cohn v. Plumer, 88, Wis. 622, 60 N. W. 1000; and
Malhon v. Bimey, 11 Wis. 112, in support of the proposi-
tion that the contract was an entire one. The question is
not material to a decision of the case. The sufficiency of
the complaint was not challenged by the general demurrer.
The true contract was set up in the answer and was estab-
lished on the trial, and the parties litigated the issues aris-
ing out of the contract set forth in the answer. We enter-
tain no doubt that such contract was apportionable. Under
these circumstances, if error was committed in overruling the
demurrer ore tenus, we should hold on this appeal that it was
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5] AUGUST TERM, 1909. 207
TUton V. J. L. Gates Land Co. 140 Wis. 197.
a teclinical and harmless error which should be disregarded
under sec. 2829, Stats. (1898). A reversal because of the
€rror complained of would simply mean that the plaintiffs
should be permitted to amend their complaint so as to make
it conform to the recitals of the answer as to what the con-
tract was, and that the parties should be subjected to a re-
trial of the issues that were fully litigated in the former trial
5. It is urged that it was error to find as a conclusion of
law that the mere failure to pay commissions relieved the
plaintiffs from continuing to perform the contract on their
part, in the absence of proof that plaintiffs were prevented
from performance or that they were hindered in performance
by the refusal of defendants to make payments as agreed.
In support of the contention the following cases are cited:
Blephenson v. Cody, 117 Mass. 6, 9 ; Winchester v. Newton,
2 Allen, 492, 494; Myer v. Wheeler, 65 Iowa, 390, 21 N. W.
692; Osgood V. Bander, 75 Iowa, 550, 39 N. W. 887; BlacJc-
bum t. Beilly, 47 N. J. Law, 290, 1 Atl. 27 ; Mersey 8. <& I.
Co. V. Naylor, L. H. 9 Q. B. Div. 648. The majority of
these cases hold that, where a contract is made for the sale
of goods which is to be executed by a series of deliveries and
payments, default by either party with reference to one or
more of the stipulated acts will not ordinarily discharge the
other party, unless the conduct of the party defaulting be
such as to evince an intention to abandon the contract or a
design to be no longer bound by its terms. In Myer v,
Wheeler, supra, it is held that the rescission of a divisible
contract will not be permitted for a breach thereof unless
such breach goes to the whole consideration. The Massa-
chusetts case cited is not in harmony with the other cases.
In that state it is held that if a contract for the sale of per-
sonal property requires deliveries from time to time and pro-
vides for payments being made at stated intervals, failure to
pay for any instalment of goods shipped when payment is
due excuses the vendor from making further deliveries un-
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208 SUPEEME COURT OF WISCONSIN. [Oct.
Tiltpn ▼. J. L. Gates Land Co. 140 Wis. 197.
der the contract Stephenson v. Cody, supra; Morton v.
Clark, 181 Mass. 134, 63 N. E. 409; Nat. M. & T. Co. v.
Stamdard 8. M. Co. 181 Mass. 275, 63 N. E. 900; Nat. C.
Co. V. VulcanUe P. C. Co. 192 Mass. 247, 78 N. E. 414.
This court has held that where a person was employed at a
stated salary per year, payable quarterly, the employee was
justified in refusing to continue work under the contract
after a quarterly instalment of his wages had become due and
payment was refused. Such decision was reached in a case
where there was no showing made on the part of the em-
ployee that he could not continue performance without em-
barrassment because of the fact that he was unable to get
the salary duo him. La Coursier v. Rxissell, 82 Wia 265,
52 N. W. 176. We think this case is decisive of the ques-
tion presented and that it is well supported by other author-
ity. See, further, Jung B. Co. v. Konrad, 137 Wis. 107,
118 N. W. 548.
6. The referee allowed the defendants $500 for attorney
fees and other expenses incurred in securing a dissolution of
the attachment placed upon their property. Otherwise no
damages were allowed because of the attachment, which re-
mained upon the attached property about five months. Ee-
f usal to allow additional damages is assigned as error. It
appeared from the testimony that the lands attached were
rapidly appreciating in value while they were tied up.
Counsel contend, however, that interest upon the value of the
attached property while the attachment rested on it should at
least be allowed. It is argued that such is the rule of dam-
ages applicable in the case of a wrongful attachment of per-
sonal property, and the cases of Booth v. Ahletnan, 20 Wis.
602, 609; Beveridge v. Welch, 7 Wis. 465; Anderson v.
Shane, 72 Wis. 566, 40 N. W. 214; and Union Nat. Bank
V. Cross, 100 Wis. 174, 75 N. W. 992, are cited to support
the contention made. It is urged that there is no difference
in principle between the two kinds of attachment, and that
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5] AUGUST TEEM, 1909. 209
Tilton T. J. L. Gates Land Co. 140 Wia. 197.
the rule should be extended so as to include real estate. We
think there is a substantial reason why interest should be al-
lowed as damages as to one species of property and should
not be allowed as to the other. Compensatory damages are
allowed as compensation. When perscmal property is at-
tached, the owner is deprived of its possession^ use, and en-
joyment, and it is right that he should be compensated for
the loss of the use of that which was taken from him by al-
lowing interest on the value thereof when such allowance fur-
nishes adequate compensation for the actual damage sus-
tained. A wrongful attachment of personal property is some-
what akin to a forced loan of it. Interest may not be ade-
quate compensation, and, when it is not, other damages are
allowed. When interest is adequate to liquidate the dam-
ages, it may well be considered the minimum recovery for
the deprival of the owner of the use of his property. An at-
tachment on real estate does not deprive the owner of the use,
occupancy, or enjoyment of the property in any sense, save
that he may not be able to sell it until the attadiment is
dissolved or released. If a sale has been prevented by the
attachment^ the loss consequent upon sudi prevention is
ordinarily capable of reasonably definite ascertainment and
proof. The compensatory damages allowed because of a
wrongful attachment should not exceed such actual damages
as are the natural and proximate result or consequence of the
wrongful act in suing out the attachment. We do not think
that interest on the value of the real estate attached can be
said to furnish any safe basis for ascertainment of the dam-
ages suffered in consequence of the attachment
7. It is urged that the attachment was maliciously levied
and that it was error to refuse to award punitory damages.
There are many items of evidence, aside from the fact that
the value of the property attached was more than ten times
the amount of the claim sued on, which tend to show that the
plaintiffs were actuated by improper motives in making the
Vol. 140—14
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210 SUPEEME COURT OF WISCONSIN. [Oct.
Tilton T. J. L. Gates Land Co. 140 Wis. 197.
attachment. The findings are against the defendants on the
point. Whether they are right or wrong is an academic ques-
tion. Courts generally hold that punitory damages are not
assessable as a matter of right, and this court has so held in
Robinson v. Superior R. T. R. Co. 94 Wis. 345, 68 N. W.
961, where the authorities on the point are reviewed. The
question of the allowance or disallowance of punitory dam-
ages is one for trial courts and juries to pass upon, and this
court will not reverse a judgment for failure to award such
damages, nor will it undertake to make an assessment of the
same.
The judgment in the action awards plaintiffs $2,426 dam-
ages, together with interest thereon from February 21, 1903,
the date of the filing of the referee's report, together with
the costs of the action, taxed at $393.29. Interest was al-
lowed by the referee in his computation from December 29,
1900, the date of the commencement of the action, and such
interest is included in said sum of $2,426. The judgment
should therefore be decreased by the sum of $235, together
with interest thereon between the dates last mentioned at
the l^al rate, amounting to $30.27, making in all the sum
of $265.27.
By the Court. — ^The judgment of the circuit court is modi-
fied by awarding the plaintiffs the sum of $2,160.73, together
with interest thereon from February 21, 1903, and the costs
of the action as taxed ; and as so modified the judgment of
the circuit court is affirmed. The appellants are awarded
costs in this court.
A motion for a rehearing was denied October 5, 1909.
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5] AUGUST TERM, 1909. 211
Blanke v. Genoa Jonction, 140 Wis. 211.
Blanks and another, Eespondents, vs. YrLLAGB of Genoa
Junction and others, Appellants.
April 22'-Octoher 5, 1909.
Tillaoe$: Bidetodlka: Ordinance fixing grades: Wrongful eonatruc-
tion: Removal.
1. A Tillage ordinance permanently establishing the grades <^
^eets at the centers and at the parking^ at the curb lines,
and providing that "said parking shall rise from such curt>
line to the lot line at a uniform grade of not less than one
fourth of one inch to each foot," fixes the grades for the side-
walks, superseding grades theretofore prescribed.
2. Where, with full knowledge of a change in the grade prescribed
for a sidewalk and in defiance of a written notice and order
from the Tillage board, a lotowner constructs a walk in accord-
ance with the former grade, the village officials have the right
to order the removal of such walk and, in case of disobedience,
to proceed to its demolition.
Appeal from a judgment of the circuit court for Wal-
worth county: E. B. Belden, Circuit Judge. Reversed.
Action to enjoin a destruction of or interference with a
cement sidewalk constructed by plaintiflFs in front of their
business premises on Mill street in the village of Oenoa Junc-
tion. The facts were stipulated, whereby it appeared that in
1903 a survey was made by one Child, giving grades for
walks in the village, which was "accepted and adopted by the
village board." August 16, 1904, Ordinance No. 21 was
adopted "permanently establishing the grades and curb lines
of certain streets and avenues," which prescribed the grades
of the centers of said streets and established the grades of "the
parking on said streets and avenues" in following words :
"The grade at the parkings at the curb line shall be the
same as the established grade at the middle of the street or
avonue opposite ; and said parking shall rise from such curb
line to the lot line at a uniform grade of not less than one
fourth of one inch to each foot."
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212 SUPREME COURT OF WISCONSm. [Oct.
Blanke v. Genoa Junction, 140 Wis. 21 !•
The grade of the parking under this ordinance in front of
plaintiffs^ premises was about nine inches lower than the
grade specified at that place in the Child survey. In 1905
plaintiffs proceeded to build upon their premises a brick
building for a retail store, which, owing to the defective
drainage, was several feet above the natural surface of the
ground and above the prescribed grade for the street. About
September, 1906, the plaintiffs proceeded to construct a per-
manent cement walk in front of said store within the lim-
its of the street substantially in accordance with the grade
specified in the Child survey, which did not correspond with
other walks in said block, being higher than some and lower
than others, but considerably above the actual surface of the
ground*
Upon commencement of the construction of said cement
walk and about August 24, 1906, the village board notified
in writing to the plaintiffs that their sidewalk was in defi-
ance of Ordinance No. 21 and ordered them to lower the
same in accordance therewith ; and en October 15, 1906, the
board passed a resolution requiring such conformity and di-
recting the village board to rebuild it in case of noncompli-
ance within twenty days, all of which was notified to the
plaintiffs. Further notice was ordered to the same effect on
October 25th and again on November 15th, the last in at-
tempted compliance with ch. 115, Laws of 1905, after which,
the plaintiffs not complying, the village officials proceeded to
remove the old sidewalk for the purpose of rebuilding it in
accordance with such resolutions, and the present action to
enjoin them and the village was brought.
The court decided that the Child survey still remains ef-
fective to establish and prescribe the grades for sidewalks,
and that, plaintiffs having erected a permanent sidewalk in
accordance therewith, the same cannot be demolished by the
village authorities, and entered judgment permanently en-
joining them from destroying and removing or in any way
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5] AUGUST TERM, 1909. 313
Blanke T. Genoa Janctlon, 140 Wis. 211.
interfering with the sidewalk in its present condition until
the street shall be graded; from which judgment all of the
defendants appeal.
For the appellants there was a brief by Oeo. W. Taylor
and John C. Slater, and oral argument by Mr. Taylor.
For the respondents there was a brief by Simmons, Nelson
<6 Walker, and oral argument by John B. Simmons.
The following opinion was filed May 11, 1909:
DoDOB, J. Without indicating concurrence in the view of
the trial court that, even if the Child survey were unrepealed,
a court of equity should restrain the government of a village
from removing what it deemed an improper or dangerous
structure within the limits of the street, we have been brought
to disagreement as to the persistency of the grade for side-
walks prescribed by adoption of that survey in 1903. After
careful consideration we are unable to view Ordinance
No. 21 otherwise .than as a general designation of the grade
of the streets therein named throughout their length and
breadth. The industrious provision for that portion of the
street extending from the curb to the lot line seems to us
wholly unambiguous. It would be absurd to declare the
grade of that portion of the street and still to leave the ques-
tion of the elevation of sidewalks to the will or whim of each
lotowner, each of whom might elevate far above or depress
below the established grade. The sidewalk, therefore, which
is essentially a part of the street, might be filled with ups
and downs, constituting pitfalls and traps for which the vil-
lage must bear responsibility. Such general purpose of the
later enactment results in a repeal of any implied authority
previously conferred by the village board to erect sidewalks
pursuant to a different grade. These plaintiffs, with* full
knowledge of the change thus made, with fuU notification
from the village board that it had been enacted with the pur-
pose of superseding the Child survey, and in violation of the
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214 SUPKEME COURT OF WISCONSIN. [Oct.
McNanghton t. Dee Moines L. Ing. Co. 140 Wia. 214,
clearest prohibition, defiantly erected this wrongful struc-
ture within the limits of a public street. Under such cir-
cumstances we can recognize no right to persist in such a
trespass simply because it had been accomplished* The
right of the village government under such circumstances to
order the removal of such an obstruction and, in case of dis-
obedience, to proceed to its demolition, is essential to the per-
formance of the duties imposed by law upon such govern-
ment Ch. 115, Laws of 1905; subd. 11, sec. 893, Stats.
(1898) ; McCtdlough v. Camplellsport, 123 Wis. 334, 101
N. W. 709. It should not be interfered with by a court.
By the Court. — Judgment reversed, and cause remanded
with directions to dismiss the action.
Upon a motion by the respondents for a rehearing there
was a brief on their behalf by Simmone & WaiJeer, and a
brief on behalf of the appellants by Geo. W. Taylor and John^
0. Blater.
The motion waa denied October 5, 1909,
MqNavqbtov, Appellant, vs. Dss Moinxs Life Insusanox:
Company, Respondent.
Beptemher H — Octo}>eT 5, 1909,
IAl€ insurance: Agency contract with insured: Credits thereunder,
hots applied on premiums: Estoppel: Forfeiture: Waiver: Un-
lawful rebate of premiums through agency contract: Evidence:
Effect on policy: Lapse: ReinstatemenU
1. ▲ life insurance company having given a person with his policy
an agency agreement, stipulating to pay him annually a pfu
rata part of a specified percentage of all premiums paid for the
•nsuing ten years on business written in specified territory^
auch payment to be made within thirty days after tlie anni-
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6] AUGUST TERM, 1909. 215
McNaaghton t. Des Moines L. Ins. Go. 140 Wis. 214.
yersary date of the agreement, coinciding with the last day for
paying annually a policy premium with a specified penalty to
prevent lapsing, and the premiums having beem made payable
annually with an option to pay quarterly, and the assured hav-
ing been duly specifically notified of the due date and amount
of the second policy premium, the first apportionment under
the contract being applied thereon, and he having paid accord-
ingly, and due notice according to custom having been given
ai to the third premium and second agency apportionment and
payment made of the quarterly amount, less such apportion-
ment, and the company, while retaining the money, having
claimed that only one quarter of the agency apportionment was
applicable on a quarterly premium payment, and demanded
payment of an additional amount equal to three fourths of the
agency apportionment within the thirty days for payment with
the added penalty, which demand was not' complied with, and
thereupon the company having invited the assured to apply
for reinstatement under the agreement in the policy in that
regard, representing that, by the contract, he was entitled to
eredit of only one quarter of such apportionment on a quar-
terly premium, and application having been made accordingly
and allowed, the additional payment being the same as the un-
I>aid agency amount due and payable as aforesaid:
<a) The giving of the premium notice in the second instance,
as in the first, estopped the company from claiming that the en-
tire agency apportionment was not applicable upon the amount
payable on the policy within the time stipulated for payment oi
such apportionment.
<b) The premium notice showing application of the agency
apportionment in the second as in the first instance, consti-
tuted an actual payment of the agency apportionment fully exe-
cuting the rebating contract, if such there were, for the quarter
the policy premium was payable.
(c) The notice to the assured after payment of the amount,
unsatisfactory to the company, demanding only an additional
amount equal to three fourths of the agency apportionment*
waived the penalty for not making payment on the exact duo
date of the premium if a penalty were thereby incurred.
(d) There having been due and payable to the assured on
the contract by the day limited for paying the policy premium,
an amount equal to the balance claimed by the company on
the policy, it was bound to apply the credit if necessary to pre-
vent a lapsing, and the application should be treated as having
been in effect made by operation of law.
(e) The assured having acted on the false representations
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216 SUPEEME COURT OP WISCONSIN. [Oct.
McNaughton v. Des Moines L. Ins. Ck>. 140 Wis. 214.
of the company in sulnnlttinf to its claim that the policy had
lapsed was not affected by the law of surrender of rights by
aoquiescence.
2. If an insurance company makes, ostensibly, an agency contract
with a policy-holder at the date of his policy, all as one trans-
action, for the purpose, in fact, of rebating the cost of the in-
surance, stipulated in the policy, such contract is unenforce-
able.
3. The circumstance of a life insurance company contemporane-
ously making an insurance agency contract with, and issuing
to a person a life policy, the contract stipulating for payment
to the assured for services, not definitely mentioned except by
referencs to an application for such contract, not produced, of
a percentage each year of the premiums received in such year
for insurance written in specified territory, is not of itself
sufficient to show with reasonable certainty that the purpose of
the contract is to drcumyent the statutory prohibition against
rebating policy premiums.
4. Where mere circumstances are reasonably consistent with a
theory of yiolation of a penal statute and also Inconsistent
therewith, the latter should prevail in the absence of corrobo-
rating evidence.
6. An executed agreement for rebating a policy premium contrary
to the statute on the subject renders the rebater liable to the
statutory penalty but does not render the policy void or void-
able.
6. If money is absolutely due and payable from an insurance com-
pany to a policy-holder before the due date of his premium the
company should apply the credit if necessary to save the policy,
and in Judicial proceedings involving the matter such appli-
cation should be conclusively presumed to have been made,
especially if such had been the custom of the company as to the
particular policy.
7. If a person, erroneously supposing his policy to have lapsed,
his view in that regard being induced in whole or in part by
a false position on the part of the insurer, i4;>plies suooessfully
for reinstatement under the clause of the policy permitting it,
he is not precluded thereby from thereafter insisting that the
policy did not in fact lapse.
8. If a person with knowledge, actual or constructive, so acts in
regard to contractual relations that the reasonable inference
under all the circumstances is that he has abandoned a claim
of right, and the adverse party in such relations acts on the
faith of such inference, as a general rule an effectual intent
to waive is implied though there is no such intent in fact, and
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5] AUGUST TERM, 1909. 217
McNaughton y. Des Moinea L. Ins. Co. 140 Wis. 214.
even if there be an undisclosed intent to the contrary, and re-
gardless of any element of estoppel strictly speaking.
9. In case of an insurance company seeking to reap advantage from
its own turpitude as to riolating the law against rebating, for
the purpose of avoiding a policy agreement, the burden is upon
It to establish the facts in that regard to a reasonable cer-
tainty.
[Syllabus by BCasshall^ X]
Appeal from a judgment of the circuit court for Trempea-
leau oaunty : J. J. Fbuit, Circuit Judga Reversed.
Action by a beneficiary to recover on an insurance policy.
The policy was issued by defendant, an Iowa corporation,
June 15, 1903^ at Whitehall, Trempealeau county, Wiscon-
sin. It required payment of a premium of $156.10 at the
issuance of the policy and the same annually thereafter, or a
specified amount semi-annually or quarterly, the latter rate
being $41.35 per quarter. It provided in case of default
for an extension of thirty days with the privilege of making
payment by adding ten cents per thousand dollars of the in-
surance, otherwise for a lapse subject to reinstatement of the
policy upon the assured furnishing a satisfactory certificate
of good health signed by the assured and a reputable physi-
cian on a form furnished for that purpose and approval by
certain specified oflScers; also that the policy should be incon-
testable after two years in case of all premiums up to that
time having been duly paid ; further, in case of the policy hav-
ing lapsed after full payment of premiimis for three years,
that the assured should have certain specified rights. The in-
contestable clause was satisfied. The policy was issued pur-
suant to an application stipulating that all statements con-
tained therein should be regarded as material to the risk and
warranties.
Accompanying the policy there was a special agency con-
tract, entitling the assured, so long as the contract was kept
in force, to a pro rata proportion annually for a period of
twenty years of seven per cent, of all premiums paid for the
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218 SUPEEME COURT OF WISCONSIN. [Oct.
McNaughton v. Des Moinea L. Ins. Co. 140 Wis. 214.
ensuing ten years on business written in this state, the same
to be taken from the expense element of such premiums and
apportioned annually within sixty days after the Ist day of
January in each year, and paid within thirty days after the
anniversary date of the contract February 17, 1904, de-
fendant gave the assured notice of an apportionment in his
favor of $13.23. Seasonably it gave him the usual premium
notice of the due date of the annual premium for 1904, de-
ducting the $13.23, though it was not payable till July 15th
thereafter. He sent the balance pursuant to the notice. It
was accepted. Seasonably for 1905 defendant gave the as-
sured written notice of an apportionment in his favor under
the agency contract of $14.60, payable July 15, 1905. No-
tice of the next annual premium was given, crediting thereon
the $14.60, in harmony with the transaction of the previous
year. The assured elected, as he had a right to do, to pay
June 15, 1905, a quarterly premium. For that he remitted
the proper amount less the apportionment of $14.60. He
was thereupon notified, he could not be permitted, in such a
case, to deduct more than a quarter of such apportionment
and to remit $10.95 to make up full quarterly payment. He
failed to do so or claim any right under the thirty-day exten-
sion element of the policy, and was thereupon notified that it
had lapsed, leaving him the privilege of reinstatement as
provided therein, and sent him, at the same tim^ a form for
the requisite health certificate. He furnished the certificate
properly executed. He stated therein that he was of sound
constitution, in good health, and that since the date of the
original application he had not been afflicted with any sick-
ness or disease whatever, nor consulted or been attended by
any physician, and warranted such statements to be true,
agreeing that otherwise the insurance should be void. At-
tached thereto was a physician's certificate of good health and
risk. Due payment of the requisite amount was made, the
application for reinstatement approved, and a certificate ac-
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6] AUGUST TEEM, 1909. 219^
McNaughton v. Dee Moinea L. Ins. Co. 140 Wis. 214.
oordingly issued July 28, 1905, providing that its validity
should depend upon the warranties contained in the applica-
tion therefor being true, and the assured being in good health
and of temperate habits on the date of the reinstatement.
He died February 10, 1906.
Conditions precedent to the conunencement of the action
were satisfied. The pleadings put in issue the question of
whether the policy lapsed for nonpayment of the premium of
June 15, 1905, whether the declarations in the application
for reinstatement that the assured, at the date thereof, was
in good health, and that since the date of the original appli-
cation he had not been afflicted with any disease or sickness
whatever, nor consulted or been attended by any physician,
were true, and pleaded that immediately upon discovering
such declarations to be untrue it disclaimed any intention to
appropriate the money paid for the reinstatement and that
it was, thereafter, at all times in readiness to return the same
to the person, or persons, entitled thereto.
The cause was submitted to the jury on the evidence in re-
spect to the issues raised as aforesaid, resulting in a special
verdict, as follows :
"(1) Was said A. J. McNaughton of sound constitution
on the 25th day of July, 1905, when he signed the certificate
of reinstatement? A. Yes.
"(2) Was said A. J. McNaughton in good health on the
26th day of July, 1905, when he signed the certificate for
reinstatement ? A. Yes.
"(3) Had said A. J. McNaughton been afflicted with any
disease or sickness whatever between the date of his applica-
tion for the policy of insurance in question and the date when
he signed the certificate for reinstatement of lapsed policy on
the 25th day of July, 1905 ? A. No.
"(4) Had said A. J. McNaughton consulted or been at-
tended by any physician at any time between the 15th day
of June, 1903, and the 25th day of July, 1905 ? A. No."
The court, on motion, changed the answer to the fourth
question from "No" to "Yes," refused to change the answer
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220 SUPREME COURT OF WISCONSIN. [Oct.
McNanghton v. Des Moines L. Ins. Ca 140 Wis. 214.
to either the first, second, or third question, and rendered
judgment dismissing the action with costs. The plaintiff
appealed.
For the appellant there was a brief by Anderson & Ekem,
and oral argument by E. L. Ekem.
For the respondent there was a brief by R. 8. Cowie and
Edward Lees, and oral argument by Mr. Lees.
Mabshall, J. Respondent's counsel make the point that
the contract which accompanied the policy was an evasion of
the anti-rebate law, rendering the credit which assured ap-
plied on his quarterly payment ineffectual, thus leaving him
in default and causing a lapse of the policy. The trial court
does not appear to have passed on that question, but if coun-
sel be right, the fact, in one aspect of the case, must render
the judgment right even if the court below was wrong as to
the particular matters complained of by appellant.
It was held in Unvan v. N. W. Nat. L. Ins. Co. 126
Wis. 849, 103 N. W. 1102, that a transaction, somewhat
similar to that which occurred in this case, pursuant to an
agreement on the part of the insurance company indicating
that the ostensible purpose was not the real one, but was to
rebate the regular cost of the insurance as an inducement to
taking out the same, was unenforceable. It must be noted that
there was proof in that instance, indicating the intention of
the parties, other than the mere production of an agency con-
tract, as in this case referring to an application not offered in
evidence that might explain the transaction. There is no
connection here, on the face of the papers, between the agency
contract and the policy, except the mere fact that the two
writings were made at the same time. In the Urwan Case
the payments agreed to be made to the so-called agent were
fixed in amount and the policy premiums were to be like-
wise, as the company represented. That was quite signifi-
cant as showing that the real purpose was to rebate the latter
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6] AUGUST TEEM, 1909. 221
McNaaghton ▼. Des Moines L. Ins. Co. 140 Wis. 214.
without any equivalent consideration. There were other cir-
cumstances in proof showing conclusively that such was the
mutual intention. In this case there was an entire absence
of such proof, while the agency contract provided for com-
pensation contingent upon the business written in this state,
and the consideration to be rendered therefor may well be
presumed to have been specified in the application referred
to in the writing, which, as before indicated, was not pro-
duced in evidence. Under the circumstances there is room
only for suspicion that the purpose of the transaction was to
evade the anti-rebate law. Contractual transactions are not
to be avoided in favor of one of the parties who sedts to es-
cape his obligations, on mere suspicion. The court will not
presume from circumstances which are consistent or incon-
sistent, according to the viewpoint from which they are meas-
ured, with violation of a penal statute, that such violation oc-
curred in the particular case, without sufficient corroborating
evidence to establish it to a reasonable certainty. While courts
should firmly enforce the policy of the law against rebating
they should not go so far as to cast the burden of proof upon
a policy-holder to show that there was no such violation, upon
the company involved seeking to escape its obligation on the
theory that it is a lawbreaker.
There is a further reason why respondent cannot invoke
the anti-rebate law to defeat the policy claim in this case.
In Laun v. Pac. Mui. L. Ins. Co. 131 Wis. 556, 111 K W.
660, it was held that an executed agreement for rebate of a
policy premium, while constituting ground for punishing the
rebater as the statute provides, does not render the policy
void ; — that the latter purpose was not within the fair mean-
ing of the statute ; and that the rule of Urwan v. N. W. Nat.
L. Ins. Co., supra, goes no further, as to the rights of a pol-
icy-holder, than to render executory agreements for the re-
bating of premiums not specified in the policy unenforceable.
As we view this case, if the purpose of the agency agreement
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1522 SUPREME COURT OF WISCONSIN. [Oct.
McNaughton ▼. Des Moines L. Ins. Ca 140 Wis. 214.
was to rebate the premiums specified on the face of the policy,
it was f ullj executed as to the premium in question and imtil
the policy matured.
Ab indicated in the statement^ before the first premium
became payable after the assured received his first credit
upon the agency contract, he was duly notified thereof, and
of such credit. As between the parties, on the face of the
record, when that premium fell due June 16, 1904, respond-
ent owed the assured $13.23 as a credit on such contract, pay-
able July 15th thereafter, or within the time such premium
was payable by addition of the trifling sum of fifty cents as
a penalty for not making payment at the precise due date.
Previous to such date, as appears, respondent notified the as-
sured of how it proposed to treat the agency credit by send-
ing him a notice of the premium, applying thereon such
<;redit. From that circumstance the assured had a right to
assume that such credits in the future would be likewise
treated. The respondent was precluded by the plainest
principles of estoppel from claiming to the contrary to the
prejudice of the assured, as to any subsequent payment, made
before it gave the assured notice of a change of its position.
When the next annual payment came due, subject to the
right of making quarterly payments, respondent gave the as-
sured the usual premium notice, applying the agency credit
as before. Then for the first time, and after the quarterly
payment was made with the credit and cash, and after the
time for payment without incurring the aforesaid penalty of
fifty cents, the assured was notified that:
'In cases where the premiums are paid quarterly, one
fourth of the apportionment is credited upon each quarterly
payment. Therefore, it will be necessary for you to send us
$10.95 additionjd in order to receive full credit for the cur-
rent quarterly imder the policy referred to."
That was an entire change of front, as the assured had a
right to view the matter.
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5] AUGUST TERM, 1909. 223
McNaughton v. Dee Moines L. Ins. Co. 140 Wis. 214.
There was nothing in the writing indicating how the
agency credit should be applied or that the same should be
applied at all. The communication quoted involved a sug-
gestion that the company asserted a right to hold the balance
of the agency credit and apply the same in $3.65 credit in-
stalments on quarterly policy premiums as they fell due dur-
ing the year, while the agreement was for payment of the en-
tire amount by July 15, 1905. The assured had a right to
assume that the mere use of the $14.60 for the thirty days,
amounting to about seven cents, was not considered by re-
spondent of any consequence and that it would waive the
precise due date of the credit as before. Moreover, in call-
ing for the additional payment of $10.95 after the penalty
was incurred, such penalty was waived. So on July 15th
thereafter, by respondent's conduct, it was permissible for
the assured to pay the additional $10.95, the precise amount
then due of the agency credit in any view of the case, and
save a forfeiture, and he may well have assumed it would be
then used to save the policy from lapsing according to the
well-established rule that it is the duty of an insurance com-
pany to apply dues from it to an assured, presently payable,
upon his premium likewise payable, if necessary to prevent
a forfeiture, especially where, from previous transactions be-
tween the parties, the assured has a right to rely upon such
application being made.
The contention of appellant^s counsel on the point last dis-
cussed we regard as sound and abundantly supported in prin-
ciple by authorities cited to our attention and many others.
Hun V. N. W. Mut. L. Ins. Co. 39 Wis. 397; MatlacJc v.
Bank, 180 Pa. St. 360, 386,' 36 Atl. 1082; Van Norman v.
N. W. Mut. L. Ins. Co. 61 Minn. 57, 52 N. W. 988; Oirard
L. Ins., A. 4& T. Co. v. Mut. L. Ins. Co. 97 Pa. St. 15 ; Chi-
cago L. Ins. Co. V. Warner, 80 HI. 410 ; Ins. Co. v. Butcher,
95 U. S. 269, 272 ; Northwestern Mut. L. Ins. Co. v. Ross,
63 Ga. 199 ; Northwestern Mut. L. Ins. Co. v. Fortes Adm^r, .
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224 SUPREME COURT OF WISCONSIN. [Oct.
McNaoghton y. Des Moinee L. Ins. Co. 140 Wis. 214.
82 Ky. 269; Franklin L. Ins. Co. v. Wallace, 93 Ind. 7;
Northwestern Mut. L. Ins. Co. v. Little, 56 Ind. 604.
It would be useless to argue that application of the agency
credit was not in fact made, therefore the agreement to pay
the same was executory and within the condemnation of the
Laun Case because, primarily, as we have seen, it was not es-
tablished that the agency agreement was a rebating contract;
secondarily, because the application was in fact made, as the
assured had a right to assume when the premium notice was
sent; and, thirdly, since in any event it was the duty of the .
respondent to make the application on or before July 15^
1905, the assured had a right to assume that such application
would be made if necessary to save his policy, and the court
in such a case must treat that which ought to have been done
as having been done.
But it is insisted, on respondent's part, that, by the assured
applying for reinstatement of the policy, treating the same as
having lapsed, and being reinstated accordingly, there was
conclusive acquiescence in the claim of respondent in that re-
gard. On that Teeter v. United L. Ins. Asso. 159 N. T. 411,
416, 54 N. E. 72, is relied on. It is the opinion of the court
that the rule there adopted is somewhat harsh and carries the
doctrine of loss of rights by mere waiver rather to the limit,
if not beyond, its boundaries as laid down by this court in
Pabst B. Co. V. Milwaukee, 126 Wis. 110, 105 N. W. 563.
There can be no waiver without at least implied intent to
waive based on knowledge, actual or constructive, of the facts.
Where the reasonable inference from the whole situation be-
tween parties in contractual relations, is that one of them
with knowledge, actual or constructive, has waived or aban-
doned a claim of right, and the other, relying thereon, has
act^d accordingly, generally speaking, an effectual intent to
waive is implied "regardless of whether there was an actual
or expressed intent to waive, or even if there was an actual
but undisclosed intention to the contrary," whether there is
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5] AUGUST TERM, 1909. 225
McNaaghton t. Defl Moinee L. Ins. Co. 140 Wis. 214.
any element of estoppel, strictly so called, or not. Such is
the doctrine of mere waiver as approved in the Pahst B. Co,
Case* Whenever a case falls clearly within that principle
it must be held to be governed thereby. Those arising under
insurance contracts cannot be excepted, neither can an ex-
ception be made because, merely, of apparent hardship in the
particular instance. Departure from that would turn judi-
cial administration into the uncertain field of mere arbitra-
tion.
It may be that Teeter v. United L. Ins, Asso., supra, is
within the principle of waiver above indicated. Certain it
is that the learned court in pronoimcing judgment thought
so. The opinion of the court, here is that the case goes a
little too far and yet has some distinguishing characteristics
from the one in hand, tending to locate the latter outside the
principle under discussion if the former is within it In the
one there was good ground on tho company's part for claim-
ing a forfeiture, as the assured must have known, while here
the assured had no good reason to think respondent's position
was tenable. In the New York case the assured may well
have supposed, the mere shadowy chance he had for main-
taining that his policy was in force notwithstanding the
claimed default, was of too little consequence to warrant in-
sisting upon it, while here the facts are so plainly conclusive
in favor of the position that no lapse had in fact occurred,
that it seems the assured could not have intended to waive
the certainty for the uncertain outcome of an application for
reinstatement, but rather thought he might well avoid a
troublesome controversy with respondent by going through
the form of complying with its demand without prejudice to
his rights, even if the application for reinstatement should be
denied, since no pecuniary penalty was involved, as seems to
have been the case. Moreover the letter of the assured ac-
companying the application for reinstatement, shows upon
its face that he recited in such application that the policy
Vol.140— 15
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22G SUPRE:ME COmiT OF WISCONSIN. [Oct.
McNanghton t. Des Moines L. Ins. Co. 140 Wis. 214.
had lapsed, using the printed form supplied by respondent,
because the latter had so stated in its communication to him
in such a way as to lead to the belief that by the terms of the
agency contract he had no right to deduct from the quarterly
payment but one fourth of the agency apportionment. He
said in such letter:
"I am very sorry to cause you all this trouble but I must
have misunderstood my contract. I understood from my
policy that I can pay my premiums quarterly if I wish the
rate to be $41.35. My contract states that my conmiissions
are payable within thirty days of the anniversary of the date
of the policy." (Meaning evidently contract) "I deducted
the total amount ($14.60) after reading this.''
Thus the application for reinstatement was made, suppos-
ing, as respondent well knew from its attitude, that he had
misunderstood the contract Its letter inferentially stated
that the agency apportionment for any year, by the contract,
was so payable as to render the whole or only a quarter ap-
plicable upon a single premium payment, according as the
assured should decide to pay annually or quarterly, which
was not the case. This rather rebuts the idea of acquiescence
and intention to waive with knowledge, actual or construc-
tive, of the facts.
Without further discussion of the question of waiver, it is
the opinion of the court that the law on that subject is in
favor of appellant Such being the case, all questions as to
reinstatement of the policy, which were resolved in respond-
ent's favor by court and jury, resulting in the judgment com-
plained of, are immaterial. That leads to the result that,
on the undisputed evidence, judgment should have been given
for plaintiff as demanded in the complaint upon the motion
which was in effect made therefor notwithstanding the ver-
dict, and the case must now take the course which it ought
to have taken.
By the Court. — ^The judgment is reversed, and the cause
remanded with directions to render judgment in accordance
with this opinion.
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5] AUGUST TERM, 1909. 227
Doherty v. Wing, 140 Wis. 227.
DoHEETY, Respondent, vs. Wing, Appellant
September U — OctoJ>er 5, 1909.
Fraud: Ple<iding: Collateral security: Bank$.
A complaint alleges that plaintiff agreed to transfer a note and
mortgage to a bank as collateral security for loans, that de-
fendant, the cashier of the bank, by fraudulent statements that
it was an assignment as collateral security only, obtained from
plaintiff an assignment in form absolutely transferring the
note and mortgage to defendant, and that defendant refuses
upon demand to surrender such securities; and in effect ad-
mits that the loans have not been repaid. Held, that no action-
able fraud against plaintiff is shown, but simply that his note
and mortgage are held by the defendant for the bank as col-
lateral security; and until the loans are repaid defendant Is
entitled so to hold them.
Appeal from an order of the circuit court for La Crosse
county: Mabtin L. Lueck, Judge. Reversed.
The complaint in this action alleges that the plaintiff was
the owner and holder of a note of the face value of $6,400,
upon which there was due and unpaid $4,960, and that the
note was secured by a mortgage of equal value. August 20,
1906, plaintiff went to the Batavian National Bank in the
city of La Crosse, of which the defendant is cashier, and se-
cured a loan from the bank of $1,000. He gave the bank
as security for the payment of the loan an assignment of the
note and mortgage. Subsequently he obtained $2,000 more
from the bank upon the same security. Plaintiff alleges that
the defendant Wing, as cashier of the bank, stated that the
assignment of the note and mortgage was solely and only for
the purpose of securing these loans, that it was an assignment
as collateral security and was not an absolute sale thereof, but
that he signed an absolute conveyance of the note and mort-
gage in favor of the defendant because he was deceived
through his false and fraudulent representations. After
learning of said false and fraudulent representations of the
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228 SUPEEME COURT OF WISCONSIN. [Oct.
Doherty v. Wing, 140 Wis. 227
defendant, plaintiff demanded the return of the note and
mortgage, but the defendant refuses to return them and is
alleged to have converted them to his own use. The com-
plaint allies that the plaintiff through such fraudulent rep-
resentations respecting the assignment of the note and mort-
gage has been defrauded by the defendant of the note and
mortgage, and he demands judgment for the difference be-
tween the value of the note and the mortgage and the sums
received by him from the bank. This is an appeal from
the order of the court overruling a general demurrer to the
complaint.
For the appellant there was a brief by Highee £ Higbee,
and oral argument by J. E. Higbee. To the point that a
pledgee cannot be held for a conversion of the pledge with-
out a payment or tender of the indebtedness for which the
pledge is held, they cited Lewis v. Mott, 36 N. T. 395;
Talty V. Freedman's 8. & T. Co. 93 U. S. 321, 326; Cooley,
Torts (2d ed.) 531; Jones, Pledges, § 571.
For the respondent the cause was submitted on the brief
of F. E. Withrow, attorney, and C. L. Hood, of counsel.
They cited Meyer v. Doherty, 133 Wis. 398; 20 Cyc 87,
note 83 and cases cited; Pryor v. Foster, 130 N. T. 171;
Gould V. Cayuga Co. Nat. Bank, 99 N. Y. 333 ; Hurlbert v.
T. D. Kellogg L. £ M. Co. 115 Wis. 225; Miller v. Each"
barth, 126 Wis. 50, 52 ; Kruse v. Koelzer, 124 Wis. 536, 542.
SiEBECKEB, J. The trial court held that the facts allied
constituted a cause of action against the defendant for a
fraud perpetrated upon the plaintiff. In determining the ef-
fect of the complaint the alleged facts must be separated from
the alleged conclusions inferable from such facta The al-
legations of fact are that the plaintiff applied to the bank
for two loans of $1,000 and $2,000, respectively, and of-
fered to secure repayment thereof by transferring note and
mortgage as collateral; that the defendant, with whom he
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5] • AUGUST TERM, 1909. 229
Doherty v. Wing, 140 Wis. 227.
negotiated these loans, was the cashier of the bank; that it
was agreed that the plaintiff was to transfer the note and
mortgage to the bank as collateral to secure these loans ; that
the defendant wrongfully obtained from the plaintiff a writ-
ten assignment which, in form, absolutely transfers the note
and mortgage to the defendant; and that the defendant re-
fuses upon demand to surrender them to the plaintiff. In
effect the plaintiff also admits that he has not repaid the
loans. The plaintiff asserts that under these conditions he
is damaged because the defendant holds the note and mort-
gage under this written assignment.
It is evident that if the defendant holds the note and mort-
gage as collateral for the repayment of the amount of the
loans he is entitled under this assignment to retain them
until the loans are fully repaid. Plaintiff confesses that the
loans remain unpaid. The full effect of the allegations of
the complaint is that the transfer of the note and mortgage
to the defendant by the plaintiff under the written assign-
ment operates to transfer them as collateral to secure the
payment of the loans to the bank. The fact that the as-
signment was taken in the name of the defendant, who is
the bank's cashier, in no way destroys it as security for the
benefit of the bank. The result is that the note and mort-
gage are held by the defendant for the bank as collateral to
secure ihe payment of the loans. Under these circumstances
no fraud has been committed against the plaintiff, and the
defendant is entitled to retain the security until the loans
have been paid. The complaint does not state a cause of
action.
By the Court. — ^The order overruling the demurrer is re-
versed, and the cause remanded with directions to enter an
order sustaining the demurrer, and for further proceedings
according to law.
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230 SUPEEME COURT OF WISCONSIN. [Oot.
Bekkedahl v. Westby, 140 Wis. 230.
BekzedahLj Appellant, vs. Village of Westby and an-
other, Eespondents.
September H — October 5, 1909,
Villages: Street improvements: Powers of village hoard: Infunctiont
Pleading: Presumptions: Taking of private property.
1. In an action to restrain a village from maMng certain street
improvements pursuant to petition, it will be presumed on de-
murrer to the complaint, in the absence of allegations to the
contrary, that the village authorities are proceeding according
to law.
2. The general power in respect to streets and sidewalks conferred
upon the village board by subd. 11, sec. 893, Stats. (1898), in-
eludes the power to determine the width of the traveled track
in a street
8. Allegations in a complaint that a village board intends and
threatens to compel plaintiff to build a sidewalk outside of the
street and upon his residence lot, and that in order to do so
he will be deprived of his land without due process of law
and without compensation, do not show a right to an injuno-
tion where it is evident from the facts pleaded that defendants
do not intend to compel plaintiff to build a walk by force or
otherwise than by legal procedure regularly Instituted and
carried on.
Appeal from an order of the circuit court for Vernon
county: James O'Neill, Judge. Affirmed.
This is an appeal from an order sustaining a demurrer to
the plaintiffs complaint. The complaint alleges in eflFect
that the plaintiff is, and has been for many years, the owner
of a certain lot used and occupied as his residence in the de-
fendant village, and which abuts on La Crosse street, and
that plaintiff has greatly improved the dwelling house upon
said premises, and that said property is of the value of
$10,000 ; that in front of said residence and just inside of the
street line of said La Crosse street are two large shade trees,
furnishing shade to the dwelling house, and that there are
other and smaller treee^ all standing within from two to six:
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5] AUGUST TERM, 1909. 231
Bekkedalil v. Westby, 140 Wis. 230.
feet of the street line, and that the plaintiffs lot is about two
feet higher than the grade of the street at that point ; that in
the year 1901 the village board of defendant improved a por-
tion of said street by macadamizing that part of said street
covering the block lying next east of the block in which
plaintiffs dwelling house is situate, which improvement in-
cluded the building of a stone curb and gutter on both sides
of said street; that while ihe improvement was under con-
sideration and on June 1, 1901, the village board by resolu-
tion fixed and determined the line of the curb for said street
at eight feet from the street line, and afterwards on June 21,
1901, changed the distance to nine feet, and on said last-
named date fixed the line of the curb at nine feet from the
street line ; that pursuant thereto the curb on the north side
of La Crosse street was built nine feet from the north line of
said street and still remains there, and that no action has
been taken by the village board of defendant changing or al-
tering said curb line; that at ihe time of fixing said curb
line the officers of said village designated and caused to be
erected monuments to mark the curb line on the north side
of said street in the block lying directly west of the block so
macadamized, being the block in which plaintiff resides, and
the officers of defendant directed plaintiff to build a plank
sidewalk in front of and abutting his property, and so placed
the same that the outer edge or line thereof would correspond
to and be in line with the stone curb so fixed and built in the
next adjoining block, and that plaintiff in good faith con-
structed in front of his property a plank sidewalk five feet
wide, and placed the outer edge thereof on the curb line so
designated, which sidewalk has remained and has been con-
tinuously used for public travel until on or about the 12 th
day of October, 1908.
The complaint then alleges that on the 23d day of June,
1908, tiie village board of defendant, acting upon a petition
of the property owners along said street^ decided to macadam-
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233 SUPREME COURT OF WISCONSTK [Oct.
Bekkedahl v. Westby, 140 Wis. 230.
ize that portion of said La Crosse street lying west of the
bl^k macadamized as before stated, extending from Main
street, in defendant village, to a point opposite the west end
of plaintiff's property, a distance of about nine and one-half
rods, and on the 25th day. of August, 1908, at a session of
the village board, defendant awarded the contract of build-
ing a cement curb and gutter along both sides of said street
to the defendant Olson, who has entered upon said work and
has proceeded to construct said curb and gutter ; that on the
12th day of October, 1908, the defendant Olson, acting, as
plaintiff is informed and believes, under the verbal instruc-
tion of some of the individual members of the village boiird
of defendant, entered upon the premises of plaintiff and de-
stroyed and removed the plank sidewalk, and threatened and
still threatens and intends to build and construct the cement
curb and gutter about six feet inside of and north of the curb
line designated in 1901 by the village board, so that all that
portion of the roadway lying south of the stone curb, includ-
ing the space occupied by plaintiff^s plank sidewalk, will be
macadamized and thrown into the street for team travel, and
plaintiff will be deprived of the use thereof for sidewalk and
boulevard purposes. It is alleged, on information and be-
lief, that the village board threaten and intend to compel
plaintiff to build a six-foot cement sidewalk north of said
curb and place the same inside and north of the present and
true street line and upon his residence lot, and that in order
tp so build the same plaintiff will be deprived, without duo
process of law and without compensation, of a strip of land
six feet wide and about 100 feet long; that if the present
sidewalk space is appropriated by the public for team travel
and the curb and gutter built on the line threatened, it will
result in great and irreparable damage to plaintiff and be
ruinous to his property in the manner in which it has been
enjoyed and will permanently impair its future enjoyment;
that the taking of said property will compel plaintiff to ex-
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6] AUGUST TERM, 1909. 233
Bekkedahl v. Westby, 140 Wis. 230.
cavate the terraced portion of his front dooryard a depth of
about two feet and six feet wide and will necessitate the
grubbing out of the shade trees in front of his property, and
that such damages cannot be adequately measured in an ac-
tion at law; that plaintiff verily believes that the action of
the defendant Olson is through the order and direction of the
trustees of ^defendant acting individually, and that the same
is arbitrary, oppressive, and without authority of law; that
said street was opened of the width of three rods upwards of
fifty years ago, and has since been traveled such width, and
that the distance between the true curb lines on either side
of said street is upwards of fifty feet, which is entirely ade-
quate for public team travel ; that, unless enjoined, plaintiff
fears defendants will carry out their threatened acts and
build said curb on his land and thereby appropriate the strip
aforesaid.
The prayer is that the defendant village and its ofiicers
and the defendant Olson and his servants be restrained and
enjoined from building a street curb and gutter further north
on said street than the line of the present stone curb on the
north side of said street, or from interfering in any way with
the strip of land five feet wide lying in front of and imme-
diately abutting plaintiff's premises, and for general reliel
The defendants demurred to the complaint for want of
facts suflScient to constitute a cause of action, which demurrer
was sustained.
The cause was submitted for the appellant on the brief of
C. W. Graves, and for the respondents on a brief signed by
Lawrence Grimsrud and W. F. £ A. C. Wolfe.
Kebwin, J. The substance of the complaint is set out in
the statement of facte. The principal charge is that defend-
ante are about to interfere with a part of a public street and
that the village board is acting under a petition in so doing.
There are no allegations in the complaint going to show that
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234 SUPREME COURT OF WISCONSIN [Oct.
Bekkedahl ▼. Westby, 140 Wis, 23a
all the steps required by law were not taken in the proceed-
ing to make ihe improvement The village having the right
to improve the street, and it proceeding on petition to do so,
it must be presumed that it is acting lawfully in the absence
of any allegation to the contrary. Subd. 11, sec. 893, Stats,
(1898), authorizes villages "to lay out^ open, change, widen
or extend roads, streets^ lanes, alleys, . . . and to grade, im-
prove, repair or discontinue the same or any part thereof;
... to make, alter, widen or otherwise improve, keep in
repair, vacate or discontinue sidewalks and crosswalks aa
provided in this act^' And sec. 905 provides the mode of pro-
cedure. There is nothing in the complaint showing or tend-
ing to show that these statutory provisions have been violated
or tiiat the defendants are not proceeding in accordance with
them. The acts to be done under the contract with defend-
ant Olson are to be done within the limits of the street The
general power conferred by law on the village includes the
power to determine the width of the traveled track. Elliott,
Roads & S. § 451 ; State v. Morristown, 33 N. J. Law, 57 ;
Benson v. Waukesha, 74 Wis. 31, 41 K W. 1017; McCul-
lough V. Camphellsport, 123 Wis. 334, 101 K W. 709; Z>amr
koehler v. Milwaukee, 124 Wis. 144, 101 K W. 706.
Stress is placed upon the allegations of the complaint ta
the effect that the village board "intend to, and threaten to,
at once after the completion of said^ curb and gutter, direct
and compel plaintiff to build a six-foot cement sidewalk north
of said curb and compel him to place the same inside of and
north of the present and true street line and upon his resi-
dence lot, and that in order to so build the same plaintiff will
be deprived, without due process of law and without compen-
sation, of a strip of land six feet wide and about 100 feet
long." The plain inference from the pleading is that if tha
plaintiff is compelled to build the walk it will be imder legal
procedure regularly instituted and carried on. He cannot
be compelled to build otherwise, and there is no allegation
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5] AUGUST TERM, 1909. 235
Bates V. Chicago, M. & St P. R. Co. 140 Wis. 235.
that defendants intend to forcibly or otherwise build or en-
ter upon his premises against his will. The allegation to-
the effect that, in order to build, the plaintiff will be deprived
of his property without compensation and without due pro-
cess of law, is without force, because it is plain from the
facts pleaded that plaintiff cannot be compelled to build and
submit to a taking of his property without compensation, and
that defendants do not intend forcibly to interfere.
But it seems wholly unnecessary to discuss the question.
The complaint is barren of facts suflScient to entitle the
plaintiff to equitable relief, and therefore the demurrer was
properly sustained.
By the Court. — The order appealed from is aflSrmed.
Bates, Respondent, vs. Chicago, Milwaukee & St. Paul.
Railway Company, Appellant,
September H — October 5, 1909,
Railroads: Injury to passenger: Unsafe haggage room: **Question of
engineering.*** Duty of carrier: Questions for jury: Contrihvr
tory negligence: Evidence: Credibility: Special verdict: Ques-
tions not submitted: Waiver: Decision hy court: Appeal: Re-
versal: Prejudicial error,
1. The rule that, generally, a master has the right to construct and
maintain his property and appliances in his own way, and if
there is no latent or hidden danger a servant assumes the risk
of injury from the ohvious character of such appliances, has
no application as between carrier and passenger.
2. The expression "a question of engineering," meaning a question
of judgment in the construction of a building or appliance, re-
lates to a condition of fact pertinent in cases between master
and servant, and not to any rule of law by which a court or
jury is disabled from deciding a cause merely because the de-
cision may involve such a question.
S. As to a passenger who was injured while in a railway baggage
room at the invitation of the baggage master for the purpose
of identifying her baggage, it was the duty of the railway com-
pany to have such room reasonably safe.
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236 SUPREME COURT OF WISCOXSIK [Oct.
Bates V. Chicago, M. & St P. E. Co. 140 Wis. 235.
4. In an action for injuries to such a passenger, who accidentally
stepped between the edge of a baggage truck and the edge of
a pit in which the trucli stood with its platform on a level with
the floor, the question whether the baggage room, with such
unguarded pit extending nearly across it, constructed to facili-
tate the loading and unloading of baggage, was reasonably safe
for the use of passengers claiming or identifying baggage there-
in, is held to have been a question for the jury.
6. The court properly refused in such action to submit for special
verdict the question, "Could it have been reasonably antici-
pated that the accident in question would have occurred at the
time and place in question?" The inquiry should have been
whether defendant could reasonably have anticipated that an
injury might probably result to a passenger by reason of the
construction and maintenance of this baggage room used as
it was.
6. Plaintiffs testimony in such case that she did not see the pit is
held not so manifestly impossible and untrue as to warrant
holding as matter of law that she was guilty of contributory
negligence.
7. It requires an extraordinary case to authorize the court to treat
sworn testimony as manifestly impossible and untrue.
8. The jury having found by special verdict that the baggage room
was not reasonably safe, that this was the proximate cause of
the injury, and that there was no contributory negligence on
the part of the plaintifiT, whether or not a further express find-
ing that defendant was negligent was necessary to fix its lia-
bility is not determined.
9. Under sec. 2858m, Stats. (Laws of 1907. ch. 346), defendant, hav-
ing failed to request that the question of its negligence be sub-
mitted to the jury, waived the right to have the jury pass
thereon; and, there being evidence to support a finding of such
negligence, it must be presumed that the court in rendering
judgment for plaintiff determined the question adversely to de-
fendant.
10. How far sec 30727?t, Stats. (Laws of 1909, ch. 192), — ^providing
among other things that no judgment shall be reversed unless
It shall appear that the error complained of has affected the
substantial rights of the party seeking reversal, — changes the
rules adopted and acted upon by this court long before the
passage of that act, and how far, if at all. it extends the pro-
visions of sec. 2829, Stats. (1898), not determined.
Appeal from a judgment of the circuit court for Vernon
county : J. J. Feuit, Circuit Judge. Affirmed.
For the appellant tlie cause was submitted on a brief by
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5] AUGUST TEBM, 1909. 237
Bates V. Chicago, M. <!b St P. R Co. 140 Wis. 235.
C. W, Graves and Chas. E. Vroman and a separate brief hj
C. W. Graves. They cited, among other cases, TwitcheU v.
G. T. B. Co. 39 Fed. 419; Bandekow v. C, B. & Q. B. Co.
136 Wis. 341, 117 N. W. 812; Groth v. Thomarm. 110 Wis.
488, 86 N. W. 178; Hill v. Fond du Lac, 56 Wis. 242, 14
N. W. 25; Kelley v. C, M. <& St. P. B. Co. 53 Wis. 74, 9
N. W. 816; Sherman v. Menominee B. L. Co. 77 Wis. 14, 45
N. W. 1079; McGowan v. C. & N. W. B. Co. 91 Wis. 147,
64 N. W. 891 ; Block v. MilwavJcee St. B. Co. 89 Wis. 371,
61 N. W. 1101 ; Bowley v. C, M. & St. P. B. Co. 135 Wis.
208, 115 N. W. 865 ; Jones v. C. & N. W. B. Co. 49 Wis.
352, 5 N. W. 854; Bourda v. Jones, 110 Wis. 52, 85 K W.
671 ; Peat v. C, M. & St. P. B. Co. 128 Wis. 86, 107 N. W.
355 ; O'Brien v. C. St. P., M. & 0. B. Co. 102 Wis. 628, 78
N. W. 1084; Dowd v. C, M. & St. P. B. Co. 84 Wis. 105,
54 N. W. 24; Boyce v. Wilbur L. Co. 119 Wis. 642, 97
K W. 563; 6 Thomp. Comm. on Neg. § 7635; Atkinson v.
Goodrich T. Co. 60 Wis. 141, 18 N. W. 764.
For the respondent the cause was submitted on the brief
of D. 0. Mahoney and J. Henry Bennett. Among other au-
thorities, they cited III. Cent. B. Co. v. Griffin, 80 Fed. 278,
25 C. C. A. 418; Hupfer v. Nai. D. Co. 114 Wis. 279, 90
N. W. 191 ; Bennett v. L. & N. B. Co. 102 U. S. 677 ; Barow-
ski V. Schulz, 112 Wis. 415, 88 N. W. 236 ; 3 Thomp. Comm.
on Neg. §§ 2678, 2709, 2710; Bremer v. Pleiss, 121 Wis. 61,
98 N. W. 945 ; 1 Thorap. Comm. on Neg. § 993 ; Banderob
V. Wis. Cent. B. Co. 133 Wis. 249, 113 N. W. 738; 26 Am.
& Eng. Ency. of Law (2d ed.) 512; HaHmg v. G. & N. W.
B. Co. 49 Wis. 358, 5 N. W. 865 ; Bhor v. Delafield, 69 Wis.
273, 34 N. W. 115; Garske v. Bidgeville, 123 Wis. 503, 102
N. W. 22; Morey v. Lake Superior T. & T. Co. 125 Wis.
148, 103 N". W. 211; Howard v. Beldenville L. Co. 129 Wis.
98, 108 N. W. 48.
TiMtiw, J. Upon a special verdict finding that the plaint-
iff when injured was in the ba^age room of the defendant
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1338 SUPREME CODHT OF WISCONSIN. [Oct.
Bates V. Chicago, M. & St P. R Co. 140 Wis. 235.
at the invitation of the baggage master, and that this baggage
room was not then reasonably safe for the use of passengers
invited thereto to identify their baggage, and that this condi-
tion of the baggage room was the proximate cause of plaint-
iff's injury, and that there was no want of ordinary care on
plaintiff's part which contributed to such injury, the plaint-
iff had judgment for the amount of damages foxmd by the
The appellant assigns several errors which fairly raise the
<juestion of the suflSciency of the evidence to support the ver-
dict; of the suflSciency of the verdict to support the judg-
ment ; and complains of failure to submit to the jury a ques-
tion proposed by defendant, also of error in instructions to
the jury. The facts in evidence show that the baggage room
of the respondent at La Crosse is so constructed that a de-
pression or pit extends from the double doors at the west
side of the room eastward into the room about twenty-four
feet and nearly across the room. This is about two feet nine
inches in depth and slightly wider than the baggage truck,
and it is used for running the baggage truck into the room so
that the platform of the truck will be practically on a level
with the floor of the room. This is an obvious convenience
in loading baggage on the truck and transferring the loaded
truck from the baggage room to the platform which is on the
lower level. At both sides and at the end of this pit or de-
pression the floor of the baggage room is available for and
used for the deposit of baggage.
The plaintiff was a passenger on defendant's road, and
went into the baggage room at the suggestion of the defend-
ant's employees to identify her baggage and have the same
checked. She then had some conversation with the baggage-
man, and left for the purpose of purchasing a rope to tie up
one item of her baggage which was defectively fastened.
She then returned and engaged in conversation with the bag-
gage master while one of the assistants of the latter was
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6] AUGUST TERM, 1909. 239
Bates V. Chicago, M. & St P. R, Co. 140 Wis. 235.
tying up the baggage with this rope which she brought with
her. She went with the baggage master across the baggage
room to identify her luggage. Near where she stood there
was a truck in the pit or depression, and she accidentally
stepped between the edge of the truck and the edge of the
pit or depression, breaking her leg and sustaining injuries.
She had not noticed nor had her attention been called to the
pit, depression, or truck up to this time. The testimony on
the part of the defendant differed materially from this, but
the foregoing is the version of the occurrence established by
the verdict.
Upon this state of facts the defendant denies the right of
the plaintiff to recover damages because the construction of
the baggage room was "an engineering problem,^* and con-
tends that its construction and maintenance was no breach
of duty to any one ; that it was a customary and usual mode
of constructing baggage rooms and handling baggage and
necessary to the easy and convenient operation of that branch
of the carrying business ; and that therefore the jury was not
warranted in .finding that the baggage room was not reason-
ably safe. To maintain this contention the appellant cites
Boyd V. Harris, 176 Pa. St. 484, 35 Atl. 222 ; Tuttle v. D.,
G. H. & M. B. Co. 122 U. S. 189, 7 Sup. Ct 1166; Chicago
it O. W. B. Co. V. Armstrong, 62 HI. App. 228; St Louis
Nat. 8. Co. V. Bums, 97 HI. App. 175 ; Chicago & E, I. B.
Co. V. Driscoll 176 111. 330, 52 K E. 921; Titus v. Brad-
ford, B. & K. B. Co. 136 Pa. St. 618, 20 Atl. 517; Bethle-
hem I. Co. V. Weiss, 100 Fed. 45, 40 C. C. A. 270, and other
cases of that class. These cases all involved questions aris-
ing between master and servant.
Generally speaking, and without reference to special stat-
utes or exceptional rules, the law confers upon the master
the right to construct and maintain his own property and
appliances in his own way and according to his own judg-
ment, and 60 long as there is no latent or hidden danger in
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240 SUPREME COURT OF WISCONSIN. [Oct.
Bates v. Chicago, M. & St. P. R. Co. 140 Wis. 235.
such construction or maintenance the servant accepting em-
ployment from the master does so subject to this right of the
master, and assumes the risk of injury from the open and ob-
vious character of such appliances Consequently in such
cases, where the defect causing the injury presents a mere
question of this kind, courts have sometime9» designated it
as a mere "question of engineering,^^ meaning a question of
judgment in the construction of the appliance. There is no
legal rule or doctrine by force of which a court or jury is dis-
abled from deciding a cause merely because in such decision
there may be involved "a question of engineering.*' The ex-
pression relates to a condition of fact pertinent in cases be-
tween master and servant and not to a rule of law. The rule
above stated obtaining between master and servant and re-
lied upon by appellant haa no application between carrier
and passenger, which was the relation of the parties in the
instant case. As to the respondent it was the duty of appel-
lant to have its baggage room reasonably safe. Indermaur
V. Dames, 19 Eng. Eul. Gas. 64; III. Cent. B. Co. v. Oriffin,
80 Fed. 278; Banderob v. Wis. Cent. B. Co. 133 Wis. 249,
113 N. W. 738. Whether or not the appellant performed
this duty may be a question of law or a question of fact, and
the inquiry in the instant case is whether there was sufficient
evidence to go to the jury on this point It is the duty of a
carrier to provide reasonably safe depot buildings in which
freight and propojiy transported over its road might be se-
curely stored ; and facts showing the character and location of
the depot building, the materials out of which it was built>
and its liability to take fire are proper to be laid before the
jury for the purpose of showing that the building was not rea-
sonably safe. Whitney v. C. & N. W. B. Co. 27 Wis. 327.
See, also, Corvroy v. C, St. P., M. & 0. B. Co. 96 Wis. 243,
250, 70 N. W. 486. While it is the duty of the railroad com-
pany to have its depot open and lighted for the convenience of
passengers (Dowd v. C, M. & St. P. B. Co. 84 Wis. 105, 54
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5] AUGUST TERM, 1909. 241
Bates V. Chicago, M. <& St P. R Ck). 140 Wis. 235.
N. W. 24), it is a question for the jury whether under the cir-
cumstances of the particular case the railroad company was
negligent in failing to have such lights. Patten v. C. & N. W.
R. Co. 32 Wis. 524. Whether a railroad company provided a
sufficient platform to enable passengers to descend from the
cars without danger was said to be a question for the jury in
Delamatyr v. M. & P. du C. B. Co. 24 Wis. 678 ; and a like
ruling was made in McDermott v. C. & N. W. R. Co. 82 Wis.
246, 52 N. W. 85, where several cases are cited; and see
Banderoh v. Wis. Cent. R. Co. 133 Wis. 249, 113 N. W. 738.
Whether the baggage room constructed as described was rea-
sonably safe for the use of passengers claiming or identify-
ing baggage therein was in the case at bar, we think a ques*
tion for the jury, notwithstanding the particular defect which
rendered it unsafe inhered in a plan of the room deliberately
adopted and used at La Crosse and else^idiere by the appel*
lant. Not that the jury may at its will condemn any plan
or building as not reasonably safe, but facts and circum-
stances may be laid before them tending to show that the
building is dangerous for the use to which it is put by the
carrier, and it is for the court to say whether the evidence
has any such tendency, and for the jury to pass upon its
wei^t and sufficiency. No doubt, if the baggage room so
constructed was only for the purpose of transferring bag-
gage to and from outgoing and incoming trains with the truck
described, there would be no evidence of its insufficiency for
that purpose, but when it is also used as a place for passen-
gers to enter and walk about in for the purpose of identifying
baggage at all hours and under all conceivable conditions of
congestion of baggage, it may well be foimd to have been so
constructed as to be dangerous to those passengers so using
it The finding of the jury covers both construction and
maintenance, and the maintenance of this unguarded open-
ing in a baggage room used for such purposes might well,
upon the evidence before the jury, be found to constitute a
Vou 140—16
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242 SUPREME COURT OF WISCONSIN [Oct.
Bates V. Chicago, M. & St. P. R. Co. 140 Wis. 235.
failure to maintain the baggage room in a reasonably safe con-
dition. It is not necessary to this to say that a barrier or rail-
ing around the pit or opening would destroy or impair its effi-
ciency for the purpose of loading or unloading and removing
l^^^&g^ Eor such purposes the baggage room was reason-
ably safe. It is only when the additional use by passengers
for the purpose of identification is added that the room can
be said not to have been reasonably safe for such additional
use. Criticisms upon the instructions to the jury because
such instructions permit the jury to consider whether or not
the appellant was negligent in constructing and maintaining
the pit in question are disposed of by these considerations.
The appellant requested the court to submit to the jury
the following question as part of the special verdict : "Could
it have been reasonably anticipated that the accident in ques-
tion would have occurred at the time and place in question V^
The court properly refused to submit this question. Its ne-
gation would have determined nothing. The mere fact that
the appellant could not have reasonably anticipated the spe-
cific accident at the particular time and place is not signifi-
cant The inquiry should have been whether the appellant
could have reasonably anticipated that an injury might prob-
ably result to a passenger by reason of the construction and
maintenance of this baggage room used as it was. Coolidge
V. Hallauer, 126 Wis. 244, 105 N. W. 568. It is not neces-
sary to decide whether this refusal would have been error if
the question was properly drawn.
On the question of contributory negligence it is con-
tended that the respondent must have seen and ought there-
fore to have avoided this pit or depression, and that her tes-
timony to the effect tiiat she did not see it is manifestly im-
possible and untrue. It requires an extraordinary case
to authorize the court to so dispose of sworn testimony.
Whether the respondent saw the pit or not would depend on
the amount and location of the baggage in the room, whether
there was or was not a truck in the pit^ how she reached her
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6] AUGUST TERM, 1909. 243
Bates V. Chicago. M. A St P. E. Ck). 140 Wis. 235.
baggage, wliat were her habits and opportunities of observa-
tion in many particulars, and we cannot say that her tes-
timony on this point is impossible. Its weight and credi-
bility were for the jury. The burden of proof upon this
point was upon the appellant.
The jury found by special verdict that the baggage room
was not reasonably safe for the use of passengers who were
invited therein for the purpose of identifying and having
baggage checked, and that this was the proximate cause of
respondent's injury, and that there was no contributory neg-
ligence on the part of the respondent, but did not expressly
find defendant negligent or find defendant negligent further
than may be implied from the above findings. The appellant
did not request that this question of defendant's negligence be
submitted to the jury. It is not necessary in this case for the
court to determine whetlier or pot an express finding of negli-
gence was necessary in addition to the facts above found in or-
der to fiix the liability of the appellant, because, if such find-
ing was necessary to uphold a recovery, it must be presumed
that the appellant, by its failure to request its submission to
the jury, waived appellant's right to the deitermination of that
question by the jury, and also that that question was deter-
mined adversely to the appellant by the judgment appealed
from, because, as we have seen, there is evidence to support
such a finding. Ch. 346, Laws of 1907, being sec 2858m,
Stats., changes the rule which formerly prevailed, and it is
now incumbent upon attorneys to present to the trial court
fairly and openly requests for the submission of questions of
fact in a special verdict If by inadvertence or finesse they^
fail to do so, being present and having opportunity, they there-
by waive the right to have the jury pass upon that particular
item of fact, and the court rendering its judgment adversely
to them (if the court does so render judgment) necessarily
resolves that fact against them.
Respondent's counsel cites ch. 192, Laws of 1909 (sec.
3072771-, Stats.), to us for the purpose of showing that the
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244 SUPKEME COURT OF WISCONSIN. [Oct.
Bates V. Cliic-ago, M. A St. P. R. Co. 140 Wis. 235.
judgment in his favor should not be reversed or set aside ex-
cept as therein provided. The statute is as follows :
"No judgment shall be reversed or set aside or new trial
granted in any action or procc?ding,* civil or criminal, on the
ground of misdirection of the jury, or the improper admis-
sion of evidence, or for error as to any matter of pleading or
procedure, unless in the opinion of the court to which the
application is made, after an examination of the entire ac-
tion or proceeding, it shall appear that the error complained
of haa affected the substantial rights of the party seeking to
reverse or set aside the judgment, or to secure the new trial.*'
It is not quite clear what change this act makes in the rules
adopted and acted upon by this court long prior to the pas-
sage of the act. See Franhe v. Mann, 106 Wis. 118, 81
N. W. 1014, and Mawh v. HaHford, 112 Wis. 40, 87 N. W.
816.
' The cases applying and announcing those rules are toa
numerous to be cited. Eighty instances of this kind will be
found cited and referred to under the title "Appeals and Er-
rors," subtitle XI, "Harmless and Immaterial Error," Cu-
mulative Index Digest for September, 1908, which merely
covers the work of this court from 122 Wis. to 133 Wis. and
116 N. W. Rep., inclusive. Whether this act of 190&
changes the rule stated in Dresser v. Lemma, 122 Wis. 387,
100 N. W. 844, to the effect that, if error is committed, prej-
udice is presumed to flow therefrom, and whether that rule
so stated is consistent with Franke v. Mann, 106 Wis. 118,
81 N. W. 1014, which declares that not only error but preju-
dicial error must be made to appear affirmatively, or con-
^ sistent with other decisions of this court, and how far, if at
all, the act of 1909 extends the existing provisions of sec.
2829, Stats. (1898), has not been discussed by counsel, and
we reserve the de<;ision of these questions for some case in
which they are necessarily involved and thoroughly pre-
sented.
By the Cowrt, — The judgment of the circuit court is af-
firmed.
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5] AUGUST TERM, 1909. 245
In re Southern Wisconsin Power CJo. 140 Wis. 245.
In bb Southern Wisconsin Power Company: Appeal of
Black Hawk Land Company,
Beptember H — October 5, 1909^
ConstitviionaJ taw: Statutes: Private and local acta: BuSldencv of
title: Location of dam authorized to be built: Oranting corpo-
rate potoera: Specie^ act: Franchiaea not corporate: Aaaign^
ment to corporation: Statute conatrued: Purpoaea for which
corporationa may be formed: Dama on navigable rivera: Leg-
islative grant: Who may queation: Public purpoaea: Eminent
domain: Circuit judgea: Holding court for one another: Ordera
at chambera,
1. The title of a private or local act should be liberallr construed,
and the act should not be declared void under sec. 18, art. IV,
Const., merely because such title does not express the subject
as fully or as unequiyocally as possible.
2. A private or local act should not be held invalid because of in-
sufficiency of its title unless, giving such title the largest scope
which reason will permit, something is found in the body of
the act which is neither within the literal meaning nor the
spirit of the title nor germane thereto.
t. The title to ch. 462, Laws of 1901, is "An act to authorize [cer-
tain persons named] to build and maintain a dam across and
to improve the navigation of the Wisconsin river," etc., the
particular place where the dam is to be built not being speci-
fied. Held that, assuming the act to be local rather than pri-
vate, the subject of the act is sufficiently localized in its title
to meet the requirements of sec. 18, art. IV, Const. Durkee v.
Janeaville, 26 Wis. 697; Anderton vl Milwaukee, 82 Wis. 279;
and Milu)aukee Co, v. laenring, 109 Wis. 9, distinguished.
4. A franchise granted by the legislature to construct and main-
tain a dam across a river is not a corporate power or privi-
lege within the meaning of sec. 31, art. IV, Const., prohibiting
the legislature from enacting any special or private law grant-
ing corporate powers or privileges except to cities. Especially
is this so where the act granting such a frandiise (in this
case ch. 462, Laws of 1901) specifically provides that no corpo-
rate powers are granted or intended to be granted by it
5. A franchise, such as the right to build a dam across a river,
which is not a corporate franchise may be conferred by a special
or private law upon a corporation already existing. Stevena
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246 SUPREME COURT OF WISCONSIN. [Oct.
In re Southern Wisconsin Power Co. 140 Wi& 245.
Point B, Co, V. ReilJy, 44 Wis. 295, so far as It holds to the con-
trary, overruled.
i. The franchise to build a dam across the Wisconsin river granted
by ch. 462, Laws of 1901, being expressly made assignable, a
corporation organized for the purpose under ch. 86, Stats.
(1898), had the right, under sec 1775a, to take an assignment
of such franchise.
7. Under sec. 1775a, Stats. (1898), the acquirement and use of
such a franchise Is a lawful business or purpose, for which,
under sec. 1771, a corporation may be organized.
8. The provision In sec. 4, ch. 462, Laws of 1901, that no corporate
powers are granted or intended to be granted by that act, does
not prohibit a corporation otherwise created from acquiring
and exercising the rights and franchises granted by said act
9. A statute authorizing individuals "to build and maintain a dam
across and to Improve the navigation of the Wisconsin river
above the same and for the purpose of creating hydraulic
power" is not in violation of sec. 1, art IX, Ck)nst (providing
that the navigable waters leading into the Mississippi "shall
be common highways and forever free," etc.), and in the ab-
sence of legislation on the subject by Congresa is within the
plenary power of the legislature.
10. When the legislature has granted such authority, and the state
does not question that the Improvement made is in conformity
with the power delegated, neither the necessity nor the use-
fulness of the improvement, nor the manner in which It is
made, can be called in question by private parties, even those
whose land is sought to be condemned in aid of the Improve-
ment
11. Whether the particular use for which property is sought to be
taken by right of eminent domain is public or private is a ques-
tion the ultimate decision of which rests with the courts; but
this does not preclude the courts from according proper defer-
ence to legislative declarations as to what constitutes a public
purpose.
12. Where the legislature authorizes the building of a dam across
a river to improve the navigation thereof and also for the pur-
pose of creating hydraulic power, either of such purposes Is
a public one, so that the power of eminent domain may be
legally conferred upon the owners of the franchise.
13. The provision in sec. 11, art VII, Const, that "the judges of the
circuit court may hold courts for each other," should be liber-
ally construed, the authority so conferred being Intended to
include generally the judicial business which a circuit judge
Is authorized by law to transact One circuit Judge may, there-
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6] AUGUST TERM, 1909. 247
In re Southern Wisconsin Power Ck). 140 Wis. 245.
fore, in a proper case make orders at chambers in another cir-
cuit
14. Even if the provision above quoted expressly authorizes a cir-
cuit Judge to hold court only at a regular term outside of his
circuit, it does not preclude the legislature from conferring,
larger powers, as has been done in sec 2432, Stats. (1898).
Appeal from an order of the circuit court for Juneaut
county: James O'Neill, Judge. Affirmed.
This is an appeal from an order of the circuit court for
Juneau county denying the motion of the Black Hawk Land
Company to vacate and set aside an order appointing com-
missioners of appraisal in condemnation proceedings.
Ch. 462, Laws of 1901, was entitled "An act to authorize
William Gunther, A. D. Johfison and A. B. Whitman, their
and each of their heirs, executors, administrators and assigns
to build and maintain a dam across and to improve the navi-
gation of the Wisconsin river above the same, and for the
purpose of creating hydraulic power." Sec 1 of the act pro-
vided for the location of the dam and its height Sec. 2 pro-
vided that in case it should be necessary to take, flow, or
injure any lands for the purpose of constructing the dam
authorized or for the purpose of improvement, the grantees
named in the franchise should be subject to all the provisions^
remedies, and liabilities contained in ch. 146, Stats. (1898)^
entitled "Of Mills and Milldams.'^ Sec. 3 of the act pro-
vided that for the purpose of acquiring the necessary lands
for flowage purposes, said parties, their heirs and assigns,
might enjoy the rights granted to and conferred upon cor-
porations by sees. 1850 to 1857, inclusive, of the Statutes o£
1898 and of amendments thereto. Sec. 4 of the act pro-
vided that no corporate powers were granted or intended to
be granted by it, and that the same should not be construed
or deemed to grant corporate powers.
The Southern Wisconsin Power Company, the petitioner
herein, is a corporation organized under the provisions of
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248 SUPEEME COURT OF WISCONSIN. [Oct.
In re Soathern Wisconsin Power Co. 140 Wis. 245.
<?h. 86, Stats. (1898). The righta and franchises conferred
by ch. 462, Laws of 1901, were in form assigned to said cor-
poration after its organization and before it attempted to
institute condemnation proceedings. In its application for
the appointment of commissioners to appraise land for flow-
age purposes it set forth the fact of its incorporation and of
the assignment of the aforesaid franchise, and also averred
that it was proceeding with the construction of the dam au-
thorized by the act in question, and that it was necessary to
overflow certain described lands in order to carry out the ob-
jects and purposes of such act, and that it was unable to
agree with certain landowners for the purchase, lease, or use
of such lands or for such easement therein as was necessary,
or upon the amoimt of compensation that should be paid for
the taking of such property.
The Black Hawk Land Company is the owner of certain
lands sought to be condemned by the petitioner, and inter-
posed an answer to such petition setting forth its reasons why
its lands should not be appropriated by the petitioner, and
moved for an order vacating the order appointing commis-
sioners in the condemnation proceedings. The court refused
to set aside such order, and from the order denying the mo-
tion to vacate this appeal is taken.
For the appellant there were briefs by Cary, Upham £
Black, and oral argument by Alfred L, Cary.
For the respondent there was a brief by Jones <6 Schu-
hring, and oral argument by B, W. Jones.
Babnbs, J. The appellant contends (1) that ch. 462,
Laws of 1901, violates sec. 18, art IV, of the constitution
of Wisconsin because the subject of the act is not expressed
in the title; (2) that the act of 1901 violates sec. 31, art IV,
of our constitution in that it grants corporate powers and
privileges; (3) that the rights conferred by the act in ques-
tion could not lawfully be assigned to or be exercised by a
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5] AUGUST TERM, 1909. 249
In re Southern Wisconsin Power Ck). 140 Wis. 245.
corporation because of the restriction contained in its fourth
section ; (4) that the act is a violation of sec. 1, art IX, of
the Wisconsin constitution; (5) that the dam in question,
while purporting to be in aid of navigation, is in reality de-
structive of it, and constitutes an unlawful structure in a
navigable stream; (6) that the respondent is seeking to con-
deron lands for a private purpose; (7) that the order ap-
pointing commissioners was made by a judge who had no
right or jurisdiction to make the same.
1. The title to ch. 462, Laws of 1901, authorizes certain
persons therein named to build a dam across the Wisconsin
river, without specifying the particular place where the dam
is to be built It is urged that the act is local, and that the
title to such an act is defective and insufficient unless it re-
fers to the specific place over which the law is to operate, and
that such place is not sufficiently localized in the act in ques-
tion to meet the requirements of sec. 18, art IV, of our con-
stitution. In support of such contention the following cases
in this court are cited. Durkee v. Janesville, 26 Wis. 697;
Anderton v. Milwaukee, 82 Wis. 279, 52 N. W. 95 ; and Milr
waukee Co. v. Isenring, 109 Wis. 9, 85 N W. 131.
In Durkee v. Janesville and in Milwaukee Co. v, Isenring
ihe object sought to be accomplished by the constitutional pro-
vision imder consideration is pointed out In the latter case
it is said that the framers of the constitution
"intended to guard against the danger of legislation, affect-
ing private or local interests, being smuggled through the
l^islature under misleading titles, by requiring every bill
affecting such interests to be under a title likely to call at-
tention of the lawmakers to its character, and likewise the
attention of the people affected, to the end that every mem-
ber of the legislature may intelligently participate in consid-
ering such bill and all objections thereto may be presented.'*
Substantially the same idea is expressed in Durkee v,
Janesville. In the latter case it is also said: "The subject of
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250 SUPEEME COURT OF WISCONSIN. " [Oct.
In re Southern Wisconsin Power Co. 140 Wis. 245.
a local act cannot be expressed in the title without a reference
to the place over which it is to operate being made therein.'^
This language is impliedly approved in the Isenring Case
and in at least one other case to which reference will be here-
after made. The titles to the acts before the court in the
ti?eo cases under consideration, and which were condemned,
made no attempt at localization. A readmg of such titles
would convey the belief that the acts were general, applying
to the entire state. There was absolutely nothing in them ta
even suggest that the proposed laws should have any re-
stricted or local application. Yet the purpose of the act in-
volved in the Jcmesville Cdse was to legalize certain acts of
the common council of that city, and the acts construed in the
Isenring Case related only to the fees of the sheriff of Mil-
waukee county.
In Anderton v. Milwaukee, supra, the act involved was-
held void as being in violation of sec. 1 of the XlVth amend-
ment to the federal constitution. The court also said that
the act was local and related to a subject not expressed in its-
title, and hence violated sec. 18, art. IV, of the constitution
of Wisconsin. On what ground this part of the decision wa»
placed is not apparent The act was entitled "An act to au-
thorize the city of Milwaukee to change the grade of streets.'^
[Ch. 254, Laws of 1891.] The body of the act referred to
a certain limited district in the city of Milwaukee, and ap-
pellant contends that it was held void because the particular
district affected was not set fortli in the title. If such waa
the view of the court, this case goes to a greater extreme than
any other that has been called to our attention in requiring
the title to a local act to designate the exact locality to be af-
fected, and comes nearest to being authority in point upon the
proposition to which it is cited. An examination of the briefs
filed in that case shows that the principal ground of attack
upon the law, as being a violation of sec. 18, art IV, Const.,
was not because the title waa not sufficiently localized. It
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6] AUGUST TERM, 1909. 251
In re Southern Wisconsin Power CJo. 140 Wis. 245.
was urged that, while the act purported to authorize the city
to change the grade of its streets, it in fact conferred na
power in this behalf that the city did not already possess ;
that under the existing laws owners of property abutting on
streets were entitled to damages sustained by reason of a
change in grade, and that the act in question attempted to-
repeal such laws as to about one fortieth of the street front-
age in the city, leaving them in full force as to the remainder,
and that the title to the act was misleading, in that the body
thereof sought to accomplish another and an entirely different
purpose from that expressed in the title. We think the mis-
statement of the purpose of the law in its title constituted the
substantial objections to its validity under sec. 18, art. TV,
of the constitution. But, assuming that the court decided
that the title did not sufficiently localize the act, there is an
important distinction between the Anderton Case and the one^
we are presently considering. A reading of the title to the
act there involved would lead the reader to believe that what-
ever was its purpose it affected the entire city of Milwaukee
and not a very small fraction of it A resident of the city
reading such title would have no reason to believe that the
locality in which ho owned property was affected to any
greater extent than any other locality in the city. On the^
other hand, ch. 462, Laws of 1901, authorized the building of
but a single dam. The title to the act informs every one that
the act authorizes the building of but one dam and that such
dam is to be located on the Wisconsin river. It misleads no-
one, although it is not as definite as to location as it might be
made.
An act of the legislature should not be adjudged invalid
except upon clear and immistakable grounds, and the title of
a private or local act should be liberally construed, and the-
act should not be declared void merely because such title does
not express the subject as fully or as unequivocally as pos-
sible. Mills V. Charleton, 29 Wis. 400. The title to an actr
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252 SUPREME COURT OF WISCONSIN. [Oct.
In re Southern Wisconsin Power Co. 140 Wis. 245.
must be liberally construed, giving all reasonable leeway for
the exercise of legislative discretion. It should not be held
insufficient if a reasonable doubt exists as to its sufficiency.
It is only where the title is so insufficient and so defective as
not to reasonably suggest the purpose of the act it covers,
and where a reading of the act will disclose provisions that
are clearly outside of its title, that it will be held invalid.
Milwaukee Co. v. Isenring, 109 Wis. 9, 24, 85 K W. 131.
The title to a legislative act must not only be liberally con-
strued, but the act should not bo condenmed as insufficient
because of the title, imless, giving such title the largest scope
which reason will permit, something is found in the body of
the act which is neither within the literal meaning nor the
spirit of the title nor germane thereto.
"Courts cannot sit in judgment upon the work of the legis-
lature and decide one of its acts unconstitutional, merely bo-
cause the title thereof is not as comprehensive as it might
have been made. Within all reasonable boundaries, legis-
lative discretion in that field cannot be rightfully interfered
with.'' Diana 8, Club v, Lamoreux, 114: Wis, 44, 48, 89
N. W. 880, 882.
In this case the following language of the New York court
«>f appeals in People ex rel. Comm'rs v. Banks, 67 N. Y. 568,
572, is cited with approval:
'The constitution does not require the title of a private
or local bill to disclose or shadow forth the character of the
proposed legislation, its full scope and purpose, and to make
known the several interests which may bo directly or indi-
rectly aflFected by it so as to attract attention and give notice
of all that is to be accomplished by the proposed act. The
constitution requires the subject of the act to be expressed in
the title, but leaves the mode of expressing it wholly to the
discretion of the legislature.'
Passing from these general statements, indicating the at-
titude with which courts approach such a question as we have
before us, to specific instances where the sufficiency of the
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5] AUGUST TERM, 1909. 255
In re Southern Wisconsin Power Co. 140 Wis. 245.
titles to private and local laws was passed upon, we find that
the decisions in specific cases are, with great unanimity, in
entire harmony with the general rules adverted to.
Ch. 299, P. & L. Laws of 1855, was entitled "An act to
incorporate the Sugar River Valley Railroad Company."
By ch. 38, P. & L, Laws of 1858, it was provided that the
privileges granted by the act should cease at the expiration
of eight years from the passage of the act, unless the com-
pany should have constructed ten miles of its road. Ch. 273,
P. & L. Laws of 1870, was entitled "An act to revive and
amend the act to incorporate the Sugar River Valley Rail-
road, approved March 29, 1855, and to authorize certain
towns therein named to aid in the construction of said rail-
road." It will be observed that the towns to which the law
was to apply were not named in the title to the act, but it was
held that the title sufiiciently localized the act, and that it
was not subject to the objection that was held fatal in Durkee
V. Janesville, 26 Wis. 697. Phillips v. Albany, 28 Wis. 340.
Ch. 25, Laws of 1870, was entitled "An act to authorize
certain counties, towns, cities and villages to aid the Milwau-
kee & Northern Railway Company." It was contended that
this act was void because the subject thereof was not suffi-
ciently expressed in the title. The municipalities affected
by the act were not named in the title, and could be ascer-
tained only by a reference to the body of the act. The court
said : "We do not think the provision in the constitution re-
quires any such particularity in the title, and it would cer-
tainly be very inconvenient to observe it in practical l^is-
lation." Lawson v. M. & N. E. Co. 30 Wis. 597, 600.
Ch.' 398, P. & L. Laws of 18G8, was entitled "An act to
amend ch. 170 of the Private Laws of 1857, entitled ^\n act
to incorporate the Yellow River Improvement Company,' ap-
proved March 2, 1857.'^ This act authorized the improve-
ment of a navigable stream and the building of dams thereon.
The court in construing it said that it "must, under the
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^54 SUPRElfE COURT OF WISCONSIN. [Oct/
In re Southern Wisconsin Power Co. 140 Wis. 245.
decisions of this court, be held to be a local act, within the
meaning of the constitutional provision above referred to/'
Sec 18, art IV, Const. Counsel for appellant cite this de-
cision in support of the proposition that ch. 462, Laws of
1901, is a local act. Nothing is said in the title to indicate
that the act confers power to construct dams at any particu-
lar point on the Yellow river, nor in fact to construct any
dams at all, except as such power might be inferred from the
fact that a corporation is created, and yet the title to the act
w^as held to embrace the subjects embodied in it, among them
the power to erect dams. Yellow River Imp. Co. v. Arnold,
46 Wis. 214, 49 N. W. 971. The court, while holding the
act local, said :
"The real question of any difficulty in this case is the one
discussed in Mills v. Charleton, supra [29 Wis. 400] ; and
that is whether the title of the act is so specific and restricted
that it cannot be said to indicate any intention to confer such
rights upon the corporation, and therefore the subjeot is not
expressed therein.^'
Ch. 454, P. & L. Laws of 1867, was entitled "An act to
incorporate the Mechanics' Union Manufacturing Com-
pany.'* Said corporation was empowered, among other
things,
"to construct and maintain all such dam or dams, canal or
<;anals, waterways, reservoirs, flumes and races as may be
necessary in the business operations of said company, and
may lease or sell any surplus water or water power created
by their said dam or dams ; provided that said company shall
have no authority to build or erect the dam or dams hereby
authorized except across Eock river, at or near Horicon, in
the county of Dodge."
Still another provision of the act authorized the corporation
^'to keep and maintain the dam across Eock river now erected
in the village of Horicon, in the county of Dodge, in case the
person or persons, body corporate or politic owning said dam
shall convey their right, title and interest in and to the same,
and the parcels of Lands on which it abuts, to the company
hereby created.'*
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S] AUGUST TERM, 1909. 255
In re Southern Wisconsin Power Co. 140 Wis. 245.
This act was before this court and its constitutionality was
attacked on the ground that it violated sec. 18, art. IV, of
OUT constitution, and it was upheld in an elaborate opinion,
in which the authorities on this subject in this and other
-courts are reviewed. Diana 8. Clvb v. Lamoreux, 114 Wis.
44, 89 N. W. 880. It is true, it is said in the opinion in
that case that the act is private rather than locaL This por-
idon of the decision either overlooked or overruled the first
-quoted portion of Yellow River Imp. Co. v. Arnold, supra.
These two acts legitimately fall under the same classification.
If one is private the other is, and if one is local the other is.
Both were acts creating corporations. Both authorized the
^construction of dams. The Yellow river, being capable of
floating logs, was navigable in fact under a long line of de-
cisions. Whisler v. Wilkinson, 22 Wis. 572; Sellers v.
Union L. Co. 39 Wis. 5?5; Olson v. Merrill, 42 Wis. 203;
A. C. Conn Co. v. Little Suamico L. Mfg. Co. 74 Wis. 652,
43 N. W. 660; Falls Mfg. Co. v. Oconto B. Imp. Co. 87 Wis.
134, 58 N, W. 257; Willow River Club v. Wade, 100 Wis.
86, 76 N. W. 273. The Rock river at Horicon was also a
navigable stream. Sec. 1607, Stats. (1898) ; In re Horicon
D. Dist. 136 Wis. 227, 232, 116 N. W. 12. We fail to dis-
cover any substantial ground for holding one of these acts
local and the other private and not local, and we think these
two acts and ch. 462, Laws of 1901, fall within the same
category in this regard. If one is local then the others are,
and if one is private the same is true of the others ; and it is
significant that the titles involved in the cases of. the Yellow
River Imp. Co. v. Arnold and Diana S. Club v. Lamoreux
are much more general in their scope and character, and
much more likely to mislead the legislature and the public as
to the character of the legislation, than is the title to the act
•under consideration in the present case.
We fail to find any case where such a title as is here in-
volved has been condemned by this court. As has been said,
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256 SUPEEME COURT OF WISCONSEN". [Oct.
In re Southern Wisconsin Power CJo. 140 Wis. 245,
there are a number of cases where titles more ambiguous have
been upheld. The general language used in Durkee v. Janes-
ville, 26 Wis. 697, that the title to a local act must refer to
the place over which the law is to operate, must be construed
with reference to the facts in that particular case. The same
general language is used in Yellow River Imp. Co. v. Arnold^
and yet the court there held that a title which simply author-
ized the incorporation of a company was broad enough to en-
able the legislature to confer on such company by the act the
power to dam a navigable stream, because the power con-
ferred was properly connected with or necessary or pertinent
to the general objects expressed in the title.
We entertain no doubt that Durkee v. Janesville, supra^
and Milwaukee Co. v. Isenring, 109 Wis. 9, 85 N. W. 131,
were correctly decided. The titles involved in each of these
cases were such as conveyed the idea that the proposed laws
were general and applicable to the entire state. There was
nothing about the titles to suggest that the acts were either
private or local, although one of the acts related to a single
city and two of them related to a single county in the state.
The law here involved is not localized in the title to the ex-
tent it might be, but still it is localized. It expressly nega-
tives the idea that it is of state-wide application, and informs
all persons who read it that the body of the act refers to some
specified point on the Wisconsin river. It is true that this^
river passes through the entire length of our state and is sev-
eral hundred miles long. But it is also true that there are
comparatively few points thereon suitable for dams, so that
the wide scope of the title is more apparent than real. We
think a substantial distinction between this case and the cases
relied on by appellant is this: A resident of Milwaukee
county reading the titles to the acts involved in the Isenring
Case, or a resident of Janesville reading the title to the act
involved in the Durkee Case, would have no reason to sup-
pose that his domicile was affected by these acts to any greater
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5] AUGUST TERM, 1909. 257
In re Southern Wisconsin Power Co. 140 Wis. 245.
extent than any other portion of the state, while in the in-
stant ease the reader is advised that it is proposed to erect a
dam at some point on the Wisconsin river. If he were in-
terested in the subject he would naturally turn to the act it-
self for further information. In the one case the title is
positively misleading; in the other it does not mislead at all.
It is not as specific as it might be made, but it is sufficiently
specific to put the reader on inquiry as to what the real na-
ture and character of the law is. The power conferred by
the act to build a dam at a definite location is pertinent to
and is properly connected with the general object expressed
in the title, which is the test adopted in the Yellow Jtiver
Imp. Co. Case.
In view of the deference that this court must pay to acts
of the legislature, and in view of the decided cases in this
court) we must hold that the title to the act in question does
not run counter to the reasons given in Durkee v. Janesville
and in Milwaukee Co. v, Isenring for the adoption of sea 18,
art. IV, of our constitution, and that^ assuming such act to
be local rather than private, the subject of the act is suffi-
ciently localized in its title to meet the constitutional require-
ment
2. It is next urged that the respondent is claiming cor-
porate powers and privileges granted by a special law, which
is prohibited by sec. 31, art. IV, of the constitution. It is
argued in support of this contention that the legislature could
not by special act create a corporation and confer such powers
upon it, or confer them directly upon a corporation organ-
ized under ch. 86, Stats. (1898), and that a corporation can-
not be formed for a purpose not authorized by ch. 86, and
cannot exercise powers or functions not therein provided for.
While the franchise here granted was a legislative grant, it
was not a corporate power or privilege within the meaning
of sec. 31, art. IV, of the constitution. If such a franchise
were granted to a corporation it would become its property,
Vol. 140 — 17
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258 SUPREME COURT OF WISCONSIN. [Oct.
In re Southern Wisconsin Power Co. 140 Wis. 245.
but would not be essential to its corporate existence. The
clatise prohibiting the granting of corporate powers or privi-
leges simply prohibits the grant of corporate charters by spe-
cial act A franchise is not essentially corporate, and it is
not the grant of a franchise that is prohibited by the con-
stitution, but the grant of a corporate franchise. The sale
of the franchise here granted by the corporation would not
destroy its corporate existence. Linden L. Co. v. Milwaukee
E. B. dc L. Co. 107 Wis. 493, 514, 83 N. W. 851; State ex
rel. AWy Oen. v. Portage City' W. Co. 107 Wis. 441, 83
N. W. 697; Black Biver Imp. Co. v. Holway, 87 Wis. 584,
59 N. W. 126 ; Att'y Oen. v. Bailroad Cos. 35 Wis. 425, 560.
That the grantees of a franchise might lawfully convey the
same to a corporation organized under the general law was
decided in Underwood L. Co. v. Pelican B. Co. 76 Wis. 76,
82, 45 N. W. 18. Besides, this act specifically provides that
no corporate powers are granted or intended to be granted
by it.
The Linden L. Co. Case definitely decided that a franchise
might be conferred on a corporation already created. If this
be true, then no good reason is apparent why a franchise
might not be assigned to such a corporation, assuming that
the scope of its articles of incorporation was such as to per-
mit it to take the assignment. On the oral argument counsel
conceded that their position is not well taken if the court fol-
lows the decision in the Linden L. Co. Case. That case was
important, was well presented at the bar, and was well con-
sidered by the court, and doubtless many valuable prop-
erty rights have been acquired on the strength of it, and it
should require a strong showing to now overturn it. The
decision does not appear to be in harmony with Stevens
Point B. Co. V. Beilly, 44 Wis. 295. This case is not re-
ferred to in the opinion, but it appears from the statement
of the case that it was cited to the court^ and it must be con-
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5] AUGUST TERM, 1909. 259
In re Southern Wisconsin Power Co. 140 Wis. 245.
fiidered as overruled in so far as it holds that a franchise
cannot be granted to an existing corporation. "We do not
think that the decision in the Linden L. Co. Case should now
be disturbed.
In reference to the assignability of the franchise, the law
granting it provides that it may be assigned, and the general
statute (sec. 1775a, Stats. 1898) authorizes corporations to
take by purchase or assignment the privileges or franchises
granted to individuals either before or after that statute was
passed, so that we have a general law expressly authorizing
corporations organized imder ch. 86 to take an assignment of
such a franchise as was granted by ch. 462, Laws of 1901.
Sec 1771, Stats. (1898), after enumerating the specific pur-
poses for which corporations may be organized, provides gen-
erally that they may be organized for any lawful business
or purpose. Sec. 1775a, Stats. (1898), has made the ac-
quirement and use of a franchise such as is here involved a
lawful business or purpose, if it could be made lawful by
statute law, and we think it could.
3. Sec. 4, ch. 462, Laws of 1901, provided that no corpo-
rate powers were granted or intended to be granted by the
act, and that it should not be construed or deemed to grant
such powers. Appellant maintains that this section should
be construed as a prohibition against the acquirement or ex-
ercise, by a corporate entity, of the rights and franchises
granted. We do not think so. Such is not the natural mean-
ing or import of the words used. Had the legislature in-
tended to prevent a corporation from acquiring or exercising
the rights and privileges granted, it would have been an easy
matter to explicitly express such intent. It is not probable
that it would have been left to courts to divine such purpose
by somewhat farfetched conjecture. It is more reasonable
to suppose that, through overcaution on the part of the per-
fions drafting the bill or on the part of the legislature that
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260 SUPEEME COUET OF WISCONSIN. [Oct.
* In re Southern Wisconsin Power Co. 140 Wis. 245.
passed it, it was intended to forestall any possible attempt
to claim that the act in fact created a corporation and granted
corporate privileges thereto.
4. It is next asserted that ch. 462, Laws of 1901, violated
Bee. 1, art IX, of our state constitution, which provides:
"And the river Mississippi and the navigable waters lead-
ing into the Mississippi and St. Lawrence, and the carrying^
places between the same, shall be common highways and for-
ever free, as well to the inhabitants of the state as to the citi-
zens of tbe United States, without any tax, impost or duty
therefor.^'
It is urged that the act of 1901 authorized the construction
of a dam from bank to bank across the channel of a navi-
gable stream which discharges its waters into the Missis-
sippi river, and that such dam is an obstruction in the river
and prevents the free navigation thereof guaranteed by the
constitution and by art. 4 of the Ordinance of 1787.
This objection to the law is answered by numerous deci-
sions of the supreme court of the United States. These de-
cisions establish the following propositions: (a) Under the
commerce clause of the federal constitution the Congress of
the United States has jurisdiction over all navigable waters
therein, (b) As to navigable streams entirely within the
borders of a single state, such state has plenary power in the
absence of Congressional action, but Congress is not con-
cluded by anything that the state, or individuals by its au-
thority, may have done from assuming entire control over
such streams, and abating any erections that may have been
made and preventing others from being made, (c) In the
absence of legislation by Congress on the subject, a statute of
a state which authorizes the construction of a dam across a
navigable river wholly within such state is constitutional,
(d) There must be a direct statute of the United States in
order to bring within the scope of its laws obstructions and
nuisances in a navigable stream wholly within a state.
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6] AUGUST TERM, 1909. 261
In re Southern Wisconsin Power Co. 140 Wis, 245.
(e) The dause in the constitution providing that the navi-
gable waters therein referred to "shall be common highways
and forever free," etc., does not refer to physical obstruc-
tions of these waters, but refers to political regulations which
would hamper the freedom of commerce. Willamette L B.
Co. V. Hatch, 125 U S. 1, 8 Sup. Ct 811, Pound v. Turch,
95 U. S. 459 ; Willson v. Black Bird Creek M. Co. 2 Pet.
245; Oilman v. Philadelphia, 3 Wall. 713; Monongahela
Nav. Co V. U. S. 148 U. S. 312, 13 Sup. Ct. 622; Mont-
gomery v. Portland, 190 U. S. 89, 23 Sup. Ct 735. The
case of Pound v. Turck, supra, arose out of an act of the
Wisconsin legislature authorizing the construction of a dam
across the Chippewa river, a navigable stream, and involved
the construction of sec. 1, art IX, of our constitution.
This court has also held that it is within the power of the
l^slature of the state to authorize the construction of a dam
across a navigable stream. Wis. River Imp Co. v. Manson,
43 Wis. 255 ; Black River F. D. Asso. v. Ketchum, 54 Wis.
313, 11 N. W. 551 ; Black River Imp..Co. v. La Crosse B &
T. Co. 54 Wis. 659, 11 N. W. 443; /. 8. Keator L. Co. v.
St. Croix B. Corp. 72 Wis. 62, 38 N. W 529 The dam
here permitted to be erected is authorized m aid of naviga-
tion, and the power of the legislature is plenary to empower
individuals to construct dams in navigable streams of the
state for such a purpose. Falls Mfg. Co. v. Oconto River
Imp. Co. 87 Wia 134, and cases cited on page 150, 58 N. W.
257, 261, In re Dancy D. Dist. 129 Wis. 129, 139, 108
K W 202.
5. It is next urged that, while the act specifies that its pur-
pose IS to improve the navigation of the Wisconsin river above
the dam, such dam is in fact an obstruction to navigation, ex-
tending as it does from bank to bank and being fifteen feet
in height , that its real purpose is to create hydraulic power ;
and that the navigation of the river cannot be obstructed for
any such purpose. It has been held that the l^islature is
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263 SUPREME COURT OF WISCONSIN. [Oct.
In re Southern Wisconsin Power Ck). 140 Wis. 245.
at least primarily the judge of the necessity for the proposed
improvement, and that when it delegates such a power, and
the state does not question that the improvement made is in
conformity witil the power delegated, neither the necessity
nor the usefulness of the improvement, nor the manner in
which it is made, can be called in question by private parties-
Wis. River Imp. Co. v. Manson, 43 Wia 255, 265; Falls
Mfg. Co. V. Oconto River Imp. Co. 87 Wia 134, 151, 58
N. W. 257 ; VnderuH)od L. Co. v. Pelican B. Co. 76 Wia
76, 85, 45 N. W. 18; J. S. Keator L. Co. v. St. Croix B.
Corp. 72 Wis. 62, 81, 38 N. W. 529; Cohn v. Wausau B.
Co. 47 Wis. 314, 326, 2 N. W. 546; Black River Imp. Co.
V. La Crosse B. & T. Co. 54 Wis. 659, 686, 11 N. W. 443.
It is true that none of the cases cited involved the rights of
a landowner whose property it was sought to condemn in aid
of the alleged improvement But the same rule with little^
if any, variation has been applied in a condemnation pro-
ceeding against a landowner {Chicago & N. W. R. Co. v.
Morehouse, 112 Wis. 1, 9, 87 N. W. 849), and in an action
brought by a landowner whose lands were overflowed, to
abate a dam authorized by the legislature. Allahy v. Maiis-
ton E. S. Co. 135 Wis. 345, 352, 116 N. W. 4. A dam au-
thorized for the creation of hydraulic power, generated for
the purpose of sale, is authorized for a public purpose. Wis.
River Imp. Co. v. Pier, 137 Wis. 325, 118 N W. 857. The
question of how far the legislature might destroy the public
use of navigation, in aid of the public use of generating hy-
draulic power, is not involved under the facts in this case,
because it appears from the evidence that the dam did im-
prove the navigation of the stream above its location, while
the alleged injury which the dam caused to navigation was
inconsequential and largely theoretical.
6. It is next urged that respondent is seeking to condemn
lands for a private use. It is argued that whether the par-
ticular use for which property is sought to be condemned is
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6] AUGUST TERM, 1909. 2G3
In re Southern Wisconsin Power Co. 140 Wis. 245.
public or private is a question of fact, the ultimate decision
of which rests with the courts, and the following cases are
cited in support of the contention that the question urged is
a judicial one: Wis. W. Co. v. Winans, 85 Wis. 26, 54 N. W.
1003; Priewe v. Wis. S. L. <£ I. Co. 93 Wis. 534, 67 K W.
918; S. C. 103 Wis. 537 79 N" W. 780; Matter of Niagara
Falls & W. R. Co. 108 N. Y. 375, 15 N. E. 429. The right
of the courts to decide whether the purpose is public for which
it is proposed to condemn property is imdoubted. Such a rule
does not preclude the courts from, according proper deference
to legislative declarations as to what constitutes a public pur-
pose. As heretofore stated, this court has uniformly held
that, where a dam is constructed in a navigable stream in aid
of navigation, the purpose of its construction is public, and
also that the taking of property for the generation of electric
power for the purpose of sale is a taking of property for a
public purpose. The mere fact that a dam would not have
been constructed were it not for the power generated by it
does not argue that the dam will not in fact aid navigation
when built, and such a structure may be entirely lawful even
though the legislative authorization for its construction bo
limited to the purpose of aiding navigation. Wis. River
Imp. Co. V. Pier, supra. We think the evidence presented
on the hearing fairly shows that the construction of the dam
in question will aid the navigation of the river above the loca-
tion of the dam and will not materially interfere with it
at or below such point, and that either of the purposes speci-
fied in the act is public, so that the power of eminent domain
was legally conferred on the owners of the franchise.
7. The condemnation proceeding was pending in the Sixth
judicial circuit. Owing to the illness of the judge of that
circuit the judge of the Eighteenth judicial circuit was called
in to hear the petition for the appointment of c<mimi8sioners
and made the order appointing them. It is urged that under
the provisions of sees. 5, 6, and 7, art VII, of our constitu-
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264 SUPKEME COURT OF WISCONSIN. [Oct.
In re Southern Wisconsin Power CJo. 140 Wis. 245.
tion a circuit judge cannot exercise any of the powers of his
office outside of his own. circuity unless there are other provi-,
eions in the constitution authorizing him to do so^ and that
the only provision found which does authorize such action is
sec 11, art. VII, which empowers judges of the circuit courts
to hold court for each other. It is argued that the holding
of court within the purview of the section last referred to
means holding one of the regular terms of the circuit court,
and does not permit the judge of one circuit to make orders
at chambers in another circuit.
It is true there is a distinction between holding court and
exercising judicial powers out of court Still we think it is
in the interest of the speedy administration of justice and of
sound public policy that the words "may hold courts/* found
in sec. 11, art. VII, be liberally oonstruei No good reason
is apparent why a circuit judge of one circuit should be em-
powered to hold court in another but should be denied the
right to transact other judicial business. Considering the
purpose which the framers of the constitution undoubtedly
had in view, we conclude that the authority conferred on
judges to hold court for each other was meant to include gen-
erally the judicial business which a circuit judge is author-
ized by law to transact Moreover, the language used is per-
missive. Circuit judges "may hold courts for each other.''
We do not think the provision quoted has precluded the leg-
islature from enlarging the powers which circuit judges may
exercise outside of their circuits, even if it be conceded that
only the power to hold court at a regular term is expressly
conferred by the constitution. The legislature has conferred
fuch power by sec. 2432, Stats. (1^98).
By the Court. — Order affirmed.
Keewin, J., took no part
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5] AUGUST TERM, 1909. 265
State ex rel. Redenius t. Waggenson, 140 Wis. 265.
In bc SoxTTHSBir Wisconsin Poweb Company: Appeal of Whitnall,
Beptemher U — October 5, 190X
Appeal from an order of the circuit court for Juneau county:
James O'Neill, Judge. Affirmed.
For the appellant there were briefs by Cary, Upham d Black, and
oral argument by Alfred L. Cary. '
For the respondent there was a brief by Joneg d Bchuhring, and
oral argument by B. W. Jones,
Babnes, J. This case In all material respects is Identical with
the appeal of the Black Hawk Land Company in In re Bouthern Wis-
consin Power Company, ante, p. 245, 122 N. W. 801* and is controlled
thereby.
By the Court. — Order aflHrmed.
Kebwin, J., took no part
State bz bel. Hbdenitts, Appellant^ vs. Waggenson and
others, Eespondents.
Beptemher 15—Octoler 5, 1909i^
Mandamus: When writ issues: Compelling repairs on drainage ditch:
Lack of available funds.
1. Although relator may have a clear legal right to have an act
done, mandamus will not issue to compel performance by an-
other unless it is the clear duty of the latter to perform at the
time and in the manner demanded.
2. Where the right to have an act done at the time and in the man-
ner demanded is dependent on some other act having been done
or some condition existing, the petition for mandamus must
show that such preliminary act has been done or condition
created.
3. Where the doing of an official act requires the expenditure of
money, performance will not be coerced by mandamus in ab-
sence of a showing that money therefor is presently available.
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266 SUPREME COURT OF WISCONSIN [Oct.
State ex rel. Eedeniue v. Waggenson, 140 Wis. 265.
4. The petition for a writ of mandamus to compel drainage com-
missioners to repair a ditch did not show that they had money
available for that purpose, and did show that money was ob-
tainable therefor only by filing an annual report, securing Judi-
cial approval, and collecting assessments as provided in ch. 419^
Laws of 1905, and that no such report had been made although,
it was the duty of the commissioners to make it Held, that
the writ would not issue to compel the making of the repairs
Appeal from an order of the circuit court for Monroe^
county: E. W. Helms, Judge. Affirmed.
Mandamus proceedings to require drainage commissioners
to repair the ditch under their charge.
An alternative writ of mandamus was issued in due form
whicli, on motion duly made, was quashed because (1) the
facts stated as a basis for the proceedings were insufficient;
(2) such facts were insufficient to show relator to be entitled
to prosecute the proceedings.
The facts relied upon are, in brief, as follows: Relator is
the owner of certain lands through which a portion of a
drainage system has been constructed and put in operation
under the laws of the state of Wisconsin. It has been the
duty of the drainage commissioners since the installation of
the drainage system to keep such system in repair and, since
the passage of ch. 419, Laws of 1905, on or about the first
Tuesday of Jime each year to file with the clerk of the cir-
cuit court having jurisdiction of the matter a report specify-
ing in detail the repairs necessary and the sum to be assessed
to make the same against each tract, lot, easement, or cor-
poration. About a year after the completion of the drainage
ditch through relator's land it commenced to fill up with
sand. The deposit therein has increased till it nearly fills the
ditch, causing large quantities of water which would other-
wise be carried down the same, to be deposited on relator's
land, rendering it valueless for farming purposes, to his great
damage. The commissioners have often been requested to^
put the ditch in a proper state of repair but have wholly t^
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5] AUGUST TERM, 1909. 267
state ex rel. Redenius v. Waggenson, 140 Wis. 265.
fused to do so. They have not filed any report as required
by the law aforesaid or raised any money to make necessary
repairs upon the ditch.
An alternative writ was issued as requested requiring the
commissioners to repair the drainage ditch where it passes
through relator's land, or show cause to the contrary before
the circuit court for Monroe county.
For the appellant there were briefs by Graham & OraJiam,
and oral argument by J. 0. Oraham.
For the respondents there was a brief by Naylor & Mc-
Caul, and oral argument by W. B. McCauL
Maeshall, J. Appellant's counsel present this appeal as
if, since appellant has a clear legal right to have the drainage
ditch repaired, the alternative writ, by which it was sought
to enforce such right, should not have been quashed. It does
not necessarily follow, because a person has a clear legal right
which can only be effective by the act of another, that it is
the clear duty of the latter to perform such act at the particu-
lar time and in the particular manner such person may de-
mand it It is fundamental that both conditions must exist ;
the right and the duty to act, before the extraordinary rem-
edy can be suooessfully invoked. State ex rel. Pfister v.
Manitowoc, 52 Wis. 423, 9 N. W. 607 ; State ex rel Board
of Ed. V. Hunter, 111 Wis. 582, 87 N. W. 485 ; State ex rel
Wi^. Met. Tel Co. v. Milwaukee, 132 Wis. 615, 113 K W.
40; State ex rel Bowe v. Krumenauer, 135 Wis. 185, 115
K W. 798 ; State ex rel Fire & Bust Proof C. Co. v. IcJce,
136 Wis. 583, 118 K W. 196.
When the duty sought to be enforced is of a private nature
a demand must be made for substantially that particular
thing, of the particular person upon whom the duty of per-
formance rests ; and his refusal thereof must precede appli-
cation for a writ to coerce such person to act; and the facts in
that regard must be made to appear in the petition for the
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268 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Redenius v. Waggenson, 140 Wi& 265.
writ, to warrant its issuance. Merrill, Mandamus, §§ 222,
223, Where the right to have the particular act done at the
time and in the manner demanded is dependent upon some
other act having been done or some condition existing, in
order to show affirmatively by the petition for the writ that
the relator is entitled, as claimed, facts must be stated therein
showing that such preliminary act has been done or condi-
tion created. State ex rel. Spaulding v. Elwood, 11 Wis.
17 ; State ex rel Sloan v. Warner, 55 Wis. 271,. 9 K W.
795, 13 N. W. 255 ; State ex rel Neeves v. Wood Co. 72 Wis.
629, 40 N. W. 381; State ex rel Oeriche v. Mayor, etc. 99
Wis. 322, 74 K W. 783.
The quoted authorities are particularly applicable to this
•case, in that they are to the effect that where the doing of
the official act in question requires the expenditure of money,
performance cannot be coerced by mandamus in absence of
A showing that money is presently available, applicable to
do the particular matter.
Now in this case there is no showing in the petition that
respondents had money which could properly be applied to
repair of the ditch. If they had no such money under their
control, it was plainly shown by the relator, as the fact is,
that it was only obtainable by their filing a report, as the
drainage law (ch. 419, Laws of 1905) provides, specifying,
among other things, in detail, the labor necessary to the pres-
ervation and protection of the improvement, the places need-
ing repairs, and securing, on due notice and hearing, judicial
Approval of the proposed work and expenditure, and deter-
mination of the amount of the assessment upon each particu-
lar parcel of land benefited, and collection of such assess-
ments in due course, — and it was further alleged that no such
report had been made though the law requires one to be made
in the circumstances of respondents, annually, to the court
having jurisdiction of the matter. Thus by the statute it is
left to the judgment of the commissioners, preliminarily,
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6] AUGUST TERM, 1909. 26»
Bretz V. R Connor Co. 140 Wis. 2G9.
and to the court finally, what repairs to a drainage ditch are
needed, and the method is provided for obtaining the neces-
sary funds, which is necessarily exclusive.
The most the petition shows as to default on the part of
the commissioners, is failure to make the required report.
No action in that respect was demanded before commence-
ment of these proceedings, nor do such proceedings contem-
plate coercion of respondents in such respect So far as is
disclosed, it is proposed to cause respondents to repair the
ditch r^ardless of whether there is money applicable there-
for, or whether the conditions precedent to the making of re-
pairs have been complied with, merely because there is need
for the repairs and respondents have failed to present the
matter to the court for consideration and direction and in
due course to accumulate the necessary money to meet the
expense. In other words, it is proposed to compel respond-
ents to make the repairs at their own expense, as a sort of
penalty for the default aforesaid, and take their chances of
later recouping the same by collection of approved assess-
ments upon the property benefited. Sufficient has been said
to show, clearly, that the facts stated in the petition for the
writ of mandamiLS do not constitute any basis for the relief
sought and, therefore, that the writ was properly quashed.
By the Court. — Order affirmed.
Beetz, Eespondent, vs. E. Connoe Company, Appellant
Beptemher 15— October 5, 1909^
Deeds: Construction* Conveyance of standing timber: Time limit on
removal: Agency: Change in deed before delivery: When gran-
tors bounds
"L Under a deed conveying timber standing or Bituated on certain
lands, "with the right to the" grantee "to enter upon said lands
and remove said timber ... at any time on or before" a
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270 SUPREME COURT OF WISCONSIN. [Oct.
Bretz V. R. Connor Co. 140 Wis. 269.
certain date» onlj such timber passes as is removed during
the time specified.
2. A person intrusted with a deed for the purpose of obtaining the
signatures of the grantors and making delivery for them, was
clothed at least with apparent authority to close the deal on
their part; and where, on his presenting the deed to the gran-
tee, the latter objected to the date specified therein as the ex-
piration of the time within which a corporation must remove
from the land certain standing timber which the grantor had
conveyed to It, and the agent thereupon changed such date to
correspond with that specified in the conveyance to the corpo-
ration, the grantee had a right to rely upon the agent's appar-
ent authority and to accept the deed as thus changed, and the
grantors were bound thereby.
Appeal from a judgment of the circuit court for Wood
<50unty : Chas. M. Webb, Circuit Judge. Affirmed.
This action was brought to recover the value of pine tin^-
ber cut and removed by the defendant from the northeast
quarter of section 10, township 27, range 2 east^ in Mara-
thon coimty. The defendant claimed title under a deed
dated May 17, 1901, which contained the following provi-
sion:
"All the merchantable log and basswood bolt timber stand-
ing or situated on west one-half of section ten (10), south-
east quarter and west half of northeast quarter of section ten
(10), and the west half of southwest quarter of section num-
ber eleven (11), all in township number twenty-seven (27),
range number two (2) east. Also with the right to the party
of the second part to enter upon said lands and remove said
timber and to do such work as is necessary for removal of
said timber, at any time on or before two years from April
15, 1901."
The deed of the timber to defendant was given by Edwift
L. Eeese, Adam Paulus, and W. D. Connor, and recorded
May 20, 1901. Most of the timber was cut during the win-
ter of 1902 and 1903, but some remained after April 15,
1903. On the 19th day of September, 1902, said Paulus,
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5] AUGUST TEEM, 1909. 271
Bretz V. R. Connor Co. 140 Wis. 269.
Heese, and Connor deeded a quarter-section of this land to
the plaintiff, which deed contained the following provision:
"Excepting and reserving the. merchantable saw-log timber
and bolts heretofore sold to R. Connor Co., with the right to
enter upon said land to remove said timber any time prior
to April 15, 1903 (1903)/'
It was claimed on the trial that the deed from Paulus,
Eeese, and Connor to the plaintiff had been changed after
•execution so as to make the right to enter upon the lands to
remove the timber read, "any time prior to April 15, 1903,**
whereas as originally executed it read "April 15, 1904," and
that such deed on its face bore evidence of the change. The
<»ase was submitted to the jury and the following verdict re-
turned:
"(1) Was the plaintiff's deed, after being signed by Adam
Paulus and Edward L. Keese, changed by W. D. Connor by
changing the year '1903' to the year *1904' in the clause re-
lating to the time for the removal of timber ? A. No.
"(2) Did W. D. Connor consent to the change in plaint-
iff's deed as made by Mr. Reynolds of '1904' to '1003'!
A. No.
"(3) Did the defendant, before entering upon the south-
east quarter of section 10 to cut the timber, acquire a title
to the timber in question in good faith, believing the same to
be valid? A. Yes.
"(4) During his negotiations with Reynolds did Paulus
inform Reynolds, in substance, of the extension of time to
the defendant for the removal of the timber, and that such
extension, in case of a sale of the lands, must be protected to
the satisfaction of W. D. Connor? A. Yes.
"(5) Did the defendant, on and after November 1, 1903,
in good faith enter upon said land and cut the timber there-
from, believing it then had a valid title thereto ? A. Yes.
"(6) What was the true stumpage value of the timber cut
by the defendant on the southeast quarter of section 10 dur-
ing the fall and winter of 1903-04 ? A, $365.64.
"(7) What was the highest market value of the timber cut
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272 SUPREME COURT OF WISCONSIN. [Oct.
Bret! V. R. Connor Ck>. 140 Wis. 209.
on plaintiff's land, after it was manufactured into lumber at
Auburndale, Wisconsin, and while in defendant's posses-
sion? A. $1,646.25.'^
Both parties moved for judgment on the verdict. The
court denied defendant's motion and ordered judgment for
the plaintiff on the verdict for $366.64. Judgment was en-
tered accordingly in favor of the plaintiff against the de-
fendant, from which this appeal was taken.
For the appellant there was a brief by Goggins & Brazeau^
and oral argument by B. R. Goggins.
For the respondent the cause was submitted on the brief
of L. M. Siurdevant, attorney, and C. B. Edwards, of coun-
sel.
Keewin, J. It is first contended by appellant that the-
deed conveyed an absolute title in the timber to defendant,
and therefore the subsequent deed to plaintiff conveyed only
the remainder of the estate. This contention is denied by re-
spondent, and he insists that only such timber as was removed
before April 15, 1903, passed to defendant by the deed to it.
Both parties rely upon the same authorities to sustain their
respective positions imder this head. The question is an im-
portant one and not free from difficulty, if we should regard
it unsettled in this state. There is much conflict of author-
ity in other jurisdictions, and much force in the position of
appellant to the effect that the deed to defendant conveyed
an absolute title to the timber described in the deed and not
such as should be removed within the two years specified.
The court, however, is forced to the conclusion that, under
the settled doctrine in this court, by a conveyance of timber
similar to the one in the deed to defendant only such timber
passes by the deed as is removed during the time specified in
the deed^. Golden v. Glock, 57 Wis. 118, 15 N. W. 12 ; Hicks-
V, Smith, 77 Wis. 146, 46 N. W. 133 ; Williams v. Jones, 131
Wis. 361, 111 N. W. 505; Peshtigo L. Co. v. Ellis, 122 Wis.
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5] AUGUST TERM, 1909. 273
Bretz V. R. CJonnor Ck). 140 Wis. 269.
433, 100 N. W. 834; Western L. & C. Co. v. Copper River
L. Co. 138 Wis. 404, 120 N. W. 277.
In September, 1902, the defendant's grantors, Paulus,
Eeese, and Connor, conveyed to the plaintiff a quarter-section
of the land covered by the deed to defendant on which some
of the timber mentioned in the deed to defendant remained
uncut. This deed contained the clause set out in the state-
ment of facts. After the deed to plaintiff had been signed by
Paulus and Eeese it was presented to Connor for signature,
and he insisted that the clause for removal read "April 15,
1904," instead of "April 15, 1903,'' and when signed by Con-
nor it read April 15, 1904. One Reynolds and others asso-
ciated with him negotiated the sale to plaintiff. When the
deed was presented for delivery plaintiff objected to the
clause respecting removal of the timber to April 15, 1904,
and Eeynolds thereupon changed it so as to read April 15,
1903. The jury found that Connor never consented to this
change, although it appears that Reynolds called him by
phone and informed him of the request of plaintiff, and that
Connor made no reply, except said "Well,*' and hung up the
receiver. It further appears from the evidence that it was
understood between defendant and its grantors that defend-
ant should have further time to remove the timber conveyed
than that specified in its deed. It does not appear, however,
that when plaintiff accepted his deed he had knowledge of
this agreement, but understood he was getting a deed subject
only to the provisions of the deed to defendant, with the res-
ervation to enter and remove the timber mentioned before
April 15, 1903.
Now the question arises whether plaintiff was boimd by
the time limit of 1904. He accepted the deed as changed by
Reynolds, making the removal period to expire April 15,
1903, and paid the consideration on the faith of such con-
veyance. It is vigorously contended by counsel for appel-
lant that Reynolds was not the agent of Connor in making
Vol. 140 — 18
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274 SUPREME COUET OF WISCONSIK [Oct.
Bretz V. R. Connor Co. 140 Wis. 269.
the change from April 15, 1904, to April 15, 1903, and that
the grantors were not bound thereby; while on the other hand
it is insisted by respondent that Reynolds was the agent of
the grantors, and that plaintiff had the right to rely upon
the terms of the deed as finally delivered by Reynolds, and
tliat the transaction was closed and the con^deration paid on
the faith of such deed. It is without dispute that Reynolds
was intrusted with the deed for the purpose of obtaining the
signatures of the grantors and making delivery for item.
So he was clothed at least with apparent authority to close
the deal on the part of the grantors. This being so, the
plaintiff, grantee, had a right to rely upon such apparent au-
thority and pay the consideration on the terms of the deed
thus delivered.
No attempt was made on the part of either party to rescind
or repudiate the transaction as closed. .We think, Tinder the
circumstances of the case, the grantors were bound by the
change to 1903 as made by RejTiolds. It is established that
the timber in question was cut by defendant after the time
for removal had expired, namely, after April 15, 1903.
Many other questions are argued by counsel, but in the
view we take of the case discussion of them seems unneces-
sary. It follows from what has been said that the judgment
below is right and must be affirmed.
By the Court. — The judgment of the court below is af-
firmed.
Babnes, J., took no part
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5] AUGUST TERM, 1909. 275
Castello V. Citizens State Bank, 140 Wis. 275.
Castello, Eespondent, vs. Citizens State Bank of Man-
AWA, Appellant.
September 1& — October 5, 1909,
Banks and banking: Oral contract of deposit: ReiX)cation: Cashier
issuing his personal check instead of certificate of deposit: Re-
tention by depositor: Estoppel: Waiver: Questions for jury,
1. Evidence tending to show that plaintiffs husband, having money
in the hands of the cashier of defendant bank, told the cashier
and plaintiff that he wished to give the money to plaintiff, told
the cashier to give her a certificate of deposit therefor, and
advised plaintiff to get such a certificate; that the cashier, who
had full charge of the business of the bank, informed plaintiff
that if she left the money in the bank for six months she
would get three per cent, interest, but if she took it out before
that time she would get no interest, and at the same time wrote
out his personal check on the bank and handed it to her; that
she took the check supposing it to be a certificate of deposit,
and kept it for several months without demanding payment
thereon and without knowledge of its true character; that she
was inexperienced in business; and that there was nothing un-
less it was the check to suggest a loan by plaintiff to the cashier
personally, — is held sufficient to warrant the jury in finding a
contract of deposit between plaintiff and the bank.
2. Assuming, as found by the Jury, that prior to delivery of the
check to plaintiff there was an oral contract of deposit between
the bank, acting through its cashier, and the plaintiff, it cannot
be held as matter of law that the substitution of the cashier's
personal check therefor and its acceptance and retention by
plaintiff under the circumstances stated revoked or discharged
such oral contract or estopped the plaintiff to enforce it, even
though it appeared that had she carefully examined the check
she would have known the difference between it and a certifi-
cate of deposit, and had she presented it for payment within
sixty days it would have been paid.
8. Waiver must be with knowledge or with reasonable means of
knowledge of the facts and with intent to forego some right, al-
though the knowledge may be either actual or constructive and
the intent expressed or implied.
Appeal from a judgment of the circuit court for Waupaca
county: Chas. M. Webb, Circuit Judge, Affirmed.
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276 SUPREME COURT OF WISCONSIN. [Oct.
Cftstello V. Citizens State Bank, 140 Wia. 275.
Llewellyn Cole, for the appellant^ cited^ among other cases,
Bickley v. Commercial Bank, 39 S. C. 281, 17 S. E. 977;
8. C. 43 S. C. 628, 21 S. E. 886; Jumper v. Commercial
Bards, 39 S. C. 296, 17 S. E. 980; Bostwich v. Mut. L. Ins.
Co. 116 Wis. 392, 89 N. W. 538, 92 N. W. 246.
Byron B. Park, for the respondent, cited, among other au-
thorities, Heim v. First Nat. Bank, 76 Neb. 831, 107 N. W.
1019; Coleman v. First Nat. Bank, 53 N. Y. 388; Ziegler v.
First Nai. BanJe, 93 Pa. St. 393 ; Steckel v. First Nai. Bank,
93 Pa. St 376, 39 Am. Rep. 758, and other cases,
Timlin, J. Upon a complaint averring that on August
28, 1906, the plaintiff deposited with defendant bank
$1,527.04 under a contract made with said bank that, if the
said money should remain on deposit for a period of six
months from said date, said bank would pay to the plaintiff
said sum with interest thereon at the rate of three per cent
per annum, or, if not left six months so as to draw said rate
of interest, then to be paid to the plaintiff at any time prior
to the expiration of said six months on her demand, and diat
demand was made and payment refused, the plaintiff re-
covered of the defendant bank the said sum with interest from
the date of demand. Defendant appeals, alleging error in
that there was a material variance between the allegations of
the complaint and the proofs, and error in overruling de-
fendant's motion for direction of a verdict in its favor.
The evidence of the respondent tended to show that her
husband, having this money in the hands of defendant's cash-
ier deposited in the account of the latter in the defendant
bank and presently payable, desired to give the money to the
respondent, and made this known to the cashier, the respond-
ent, and others present He told the cashier to give the re-
spondent a certificate of deposit and advised her to get a cer-
tificate of deposit The cashier then informed her that if
she left the money in the bank for six months she would get
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5] AUGUST TEEM, 1909. 277
Castello Y. Citizens State Bank, 140 Wis. 276.
three per cent, interest, and if she took it out before that time
she would not get any interest, and at the same time wrote
out his personal check on the defendant bank and handed it
to the respondent, who looked at it, supposing it to be a cer-
tificate of deposit, and took and kept possession of it without
demand of payment until January 19, 1907, and without ac-
tual knowledge of its true legal character. Eespondent was
at the time a married woman thirly-one years of age, had
lived on a farm aU her life except the two years preceding the
transaction in question, during which time she lived in the
village with her husband, who kept a livery stable. She had
no separate estate and had never been in any line of business.
There was nothing to suggest a loan of money from respond-
ent to the cashier personally unless it be the check above men-
tioned. The cashier was the principal executive oflScer of
the defendant bank and had full charge of all its business.
There was upon the foregoing facts at least a question for
the jury whether or not the cashier understood that the re-
spondent and those speaking for her were proposing a con-
tract of deposit between respondent and the bank to be made
through the cashier in his official capacity, and whether or
not the cashier did in this capacity assent to the same or de-
signedly lead the respondent to believe that he assented to the
same, prior to the execution of the check in question. As to
the respondent the cashier was prima facie representing the
bank, and he in no way prior to the execution of the check
brought the fact to her notice or knowledge that he was act-
ing or claiming to act in his personal or individual capacity.
The contractual effect of passing out the check under the cir-
<5umstances to an inexperienced woman was at least a matter
for the jury. ZaZey v. Van Ostrcmd, 134 Wis. 443, 114
N. W. 817. If the cashier intended that the plaintiff should
understand that she was making a contract with the bank amd
the plaintiff did so understand, that is sufficient, there being
an obvious consideration for such a contract. The cases cited
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273 SUPREME COURT OF WISCONSIN. [Oct.
Caatello v. Citizens State Bank, 140 Wis. 275.
by the respondent and above noted amply sustain the author-
ity of the jury to find a contract of deposit between the re-
spondent and the bank upon this evidence. Heim v. First
Nat. Bank, 76 Neb. 831, 107 N. W. 1019, and cases.
The appellant next contends that accepting the personal
check of the cashier on August 28, 1906, then failing to ex-
amine it carefully or to read it, and thereafter holding it un-
til January 19, 1907, without examination of the check or ob-
jection, brought the case within the rule of Bostwich v. Mut.
L. In^. Oo. 116 Wis. 392, 89 N. W. 538, 92 N. yj. 246, and
that the trial court should have directed a verdict for defend-
ant. There was no request upon the part of the appellant to
have the question of waiver or estoppel submitted to the jury,
but it is claimed that by reason of the facts aforesaid, coupled
with the fact that the respondent admitted that had she care-
fully examined the check she would have known the differ-
ence between that and a certificate of deposit, and the fur-
ther fact that had she presented the check for payment at any
time within sixty days after its receipt by her it would have
been paid by the bank, a verdict should have been directed for
the appellant. The check was headed with the name of the
bank, followed by these words: "Pay to the order of Mrs.
Thomas F. Castello $1,527.04 fifteen hundred twenty-seven
and four one-hundredths Dollars. G. E. Soli." The ordi-
nary form of a certificate of deposit following the same head-
ing would have been : ."This certifies that Mrs, Thomas F.
Castello has deposited in this bank $1,527.04 [repeated] pay-
able to her order upon the return of this certificate properly
indorsed. G. E. Soli, Cashier.'^ This would probably be fol-
lowed by a memorandum printed or stamped thereon relat-
ing to the interest terms. The difference is very plain to a
lawyer, and the difference is rather in substance than in ap-
pearance or form, and to an inexperienced person the differ-
ence is not 80 striking as to arouse attention, even though
such person might, upon carefully reading it, have observed
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5] AUGUST TERM, 1909. 279
Castello V. Citizens State Bank, 140 Wis, 275.
and appreciated the difference. We must take up this ques-
tion upon the assumption that prior to the delivery by the
cashier of his personal check to the respondent there was an
oral contract* of deposit made and concluded between the re-
spondent and the bank as found by the jury. Its terms were
all agreed upon, and it remained for the cashier to reduce
them to writing in the form of a certificate of deposit. Bost-
vnck V. Mui. L. Ins. Co. 116 Wis. 392, 89 K W. 538, 92
N. W. 246, much relied upon by appellant, is not in point.
That was an action at law to rescind a contract whereby the
insurance company undertook to deliver a certain kind of pol-
icy or contract. The transaction sought to be rescinded wa^
in effect a sale of several policies of life insurance to Bostwick
and others. The latter received and retained for a long time
the thing purchased without carefully examining it for de-
fects patent on its face, and during this time had the option,
in case of death, to hold the insurance company as insurer.
There was no existing insurance contract between Bostwick
and the company at the time the company sent in the proposed
policy, but the policy was forwarded to Bostwick in execution
of a contract for the same and under a claim that it complied
with the prior executory agreement.
In the case at bar there was first a valid oral contract be-
tween the bank, acting through its cashier, and the respondent
for which the cashier without the knowledge or consent of
the respondent substituted a writing in a form and by a per-
son entirely unauthorized. The cashier's check thus never
became a contract at all, because not assented to, nor even a
proposal to contract, because not brought to the attention of
the other party. The prior oral contract could only be re-
voked by mutual consent or discharged by release or its en-
forcement prevented by estoppel. There was neither revoca-
tion, release, nor estoppel in the case at bar by mere reten-
tion of this check without knowledge of its contents on the
part of respondent and under the mistaken impression that it
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280 SUPREME COURT OF WISCONSIN. [Oct.
£ames y. Karnes, 140 Wis. 280.
was given pTirsuant to and truly represented the anterior oral
contract of deposit. True, the acceptance and retention of
the check was evidence going to show that the contract of de-
posit was made with the cashier personally and not with the
bank, while the sex and inexperience of the respondent and
her apparent reliance upon the bank, and the fact that she
did not read or examine the check or know its contents, were
facts tending to the contrary.
Waiver must be with knowledge or with reasonable means
of knowledge of the facts and with intent to forego some
right, although the knowledge may be either actual or con-
structive and the intent expressed or implied. Pabst B. Co.
V. Milwavkee, 126 Wis. 110; 105 K W. 563; McNaughton
V. Des Moines L. Im. Go,, mte, p. 214, 122 N. W. 764.
The probative effect of her retention of the check under such
circumstances is not so absolute as to authorize the direction
of a verdict for the defendant.
By the Court.>— The judgment of the circuit court is af-
firmed.
Kaenes, Respondent, vs. Kabnes, Appellant
Beptemher IS-^doher 5, 190%
Appeal: Findings: Divorce: DeieriiOfK
1. Where the trial court made no specific findings of fact, but found
generally that the allegations of the complaint were proven and
true, it will be assumed, on appeal, that it found in plaintiffs
favor upon all controverted questions of fact.
2. In an action for divorce a finding that defendant wilfully deserted
plaintifT for the statutory period ia held not so clearly against
the preponderance of the evidence as to warrant reversal of the
judgment.
Appeal from a Judgment of the circuit court for Dunn
coimty : E. W. Helms, Circuit Judge. Affirmed.
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6] AUGUST TERM, 1909. 281
Karnes v. Karnes, 140 Wis. 280.
The appeal is from a judgment granting a divorce upon
the ground of wilful desertion for the period of one year next
preceding the commencement of the action.
For the appellant there was a brief signed by J. W. Mor
cauley, attorney, and Thomas Carmody, of counsel, and oral
argument by Mr. Macauley.
J. i2. Mathews, for the respondent
Babnes, J. The defendant seeks a reversal on two
grounds: (1) Plaintiff failed to establish the fact that he was
a resident of Wisconsin for the period of one year prior to
the commencement of the action; and (2) the evidence failed
to establish wilful desertion.
The first ground of error may be dismissed by asserting
that the evidence was ample to establish the fact that plaint-
iff was a resident of the state the requisite length of time be-
fore bringing his action.
The second ground of error is more substantial There
was direct conflict in the testimony offered by the respective
parties on most of the material matters testified to. The
court made no specific findings of fact, but found generally
that the all^ations of the complaint were proven and true.
We must assume that it found all controverted questions of
fact in favor of the plaintiff. It was not denied that de-
fendant deserted the plaintiff about two weeks before he left
New York and came to Wisconsin. It is likewise true that
defendant returned to plaintiff^s home about eight days after
she left, but the evidence would amply justify a finding by
the court to the effect that she did not return for the purpose
of living with her husband, but for the purpose of securing
her clothing and personal effects. It is also true that the
plaintiff never advised the defendant of his whereabouts, or
sent her any money or provided for her support after he left
the state of New York, except as she realized a small sum of
m(mey from some property which he had at the time of his
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282 SUPREME COURT OF WISCONSIN. [Oct.
Harley v. Harley, 140 Wis. 282.
departure. But the defendant did desert the plaintiff be-
fore he left New York, and without just cause, as the court
found, and as it had a right to find on the testimony. The
defendant does not claim that she was ever either ready or
willing to resume her marital relations with plaintiff, except
as she testified that she returned to his home. As already
said, the court was warranted in finding that she did not re-
turn for the purpose of living with plaintiff. Upon the state
of the record we cannot say that tho finding by the court of
wilful desertion on the part of the defendant for the statu-
tory period was so clearly against the preponderance of the
evidence as to warrant this court in reversing the judgment.
By the Court. — Judgment affirmed*
IIablet, Respondent, vs. Haelet, Appellant.
September IG — October 5, 1909.
Ejectment: Right to possession: Pleading: Defenses: Necessary par-
ties, how brought in: Equitable estates: Dower and homestead
rights of widow in possession.
1. One cannot recover In ejectment unless he Is entitled to posses-
sion at the time he commences his action.
2. A legal defense in ejectment is not pleadable as a counterclaim,
since otherwise- by the forms of pleadings a defense raising is-
sues as matter of right commonly understood to be triable by a
jury could be so Interposed as to require trial by the court
3. If a person on a sufficient consideration agrees to convey real es-
tate to another as his property and puts such other into posses-
sion pursuant thereto, who subsequently, while in such posses-
sion, dies intestate, leaving a widow and children, the circum-
stances being such that such person could have been judicially
compelled to convey the land, pursuant to the agreement, to the
executory vendee had he lived and such person nevertheless
brings ejectment against the widow who is in possession with
her children, such facts are a good legal defense, and are plead-
able as an equitable defense as well to secure appropriate relief.
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5] AUGUST TERM, 1909. 283
Harley v. Harley, 140 Wis. 282.
4« In the situation above stated the defendant may have the benefit
of the equitable defense and obtain such affirmative relief as to
fully protect her notwithstanding her children are not made de-
fendants, unless their presence In the litigation is necessary for
their due protection or In order that a full determination of all
the issues may be had.
5. In the contingency suggested the court should not dismiss the ac-
tion nor render Judgment In plaintiff's favor, but should, on his
own motion, order the necessary parties brought in unless some
one presently a party so moves.
6. In the situation stated in number 4 the widow for her life or
widowhood is the equitable owner of the homestead, if there be
one, with the right to be clothed with the legal title to that
extent, and the owner of a dower right in the other lands^ If
there be such, with the right to be clothed with such title as
will fully protect such dower right.
7. If a widow with her children is left by the death of her husband
in possession otland in which she has a dower right she may at
law maintain that position without having her dower assigned.
8. A widow's dower in land will enable her not only to defend her
possession if left therein with her children by her husband at
his decease, without having such dower assigned, but whether
she has issue by such husband or not she may maintain eject-
ment to obtain such dower.
9. The homestead right which descends as such on the death of a
husband leaving a widow and children, attaches to the home
property even though the husband had only the full equitable
title thereto.
10. A full equitable title to real estate and like beneficial Interest
therein, the holder of the legal title halving no duty to perform
in respect to the property except to convey the legal title to the
owner of the equitable title, is an estate of inheritance within
the meaning of the dower statute.
[Syllabus by Mabshall, J.]
Appeal from a judgment of the circuit court for Dunn
county: E. W. Helms, Circuit Judge. Reversed.
Action of ejectment.
The matter litigated and basis for judgment as indicated
in the findings may be concisely stated thus : Plaintiff holds
the legal title to the premises in dispute consisting of eighty
acres of land. He is the father of Charles Harley, who died
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«84 SUPREME COURT OF WISCONSIN. [Oct.
Harley v. Harley, 140 Wig. 282.
intestate August 12, 1903, leaving surviving the defendant^
his widow, and three children. Prior to the marriage of de-
fendant and Charles plaintiff gave the latter the real estate
mentioned with the understanding that he and defendant
should become man and wife and move upon, occupy, and
improve the premises as the property of Charles. The legal
title was never parted with by plaintiff. The marriage con-
templated took place and all conditions of the gift were sat-
isfied by defendant and Charles taking possession of said
premises as property of the latter and their occupying and
using the same as such thereafter with plaintiff^s approbation
till Charles died, during which time he made valuable im-
provements upon the land supposing that he was the real
owner thereof and that plaintiff would opnvey the same to
him as he had promised to do. September 23, 1907, and
long after the conmiencement of this action, defendant be-
<»me the wife of one Johnson. She was in possession of the
premises in dispute with her children at the time this action
was commenced and has been so circumstanced since the
death of her husband. No assignment of dower has been
made to her.
On such facts, notwithstanding defendant pleaded all the
facts stated as aforesaid as a defense and also as a counter-
claim and prayed for judgment requiring plaintiff to carry
out his agreement with Charles by conveying the premises
vesting in her and her children the title which would have
come to them upon the death of Charles had he died seised
of the legal title, the court decided that> since plaintiff held
the legal title, defendant could not prevail in ejectment on
her equitable defense, neither could she prevail on her coun-
terclaim without presence in the litigation of her children,
and that though plaintiff had no right to possession of the
premises as against the heirs of Charles, since she was not en-
titled to possession by virtue of any dower interest, plaintiff
was entitled to recover.
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5} AUGUST TERM, 190&. 285
Harley v. Harley, 140 Wis. 282.
J. R. Mathews and R. E. Bundj/, for the appellant
Fop the respondent there was a brief by Arthur H. Shoe*
maker and J. W. Macavley, and oral argument by Mr. Shoe-
maker.
Maeshaix, J. The learned trial court decided tbis case
npon the theory that, because of plaintiff having the bare
legal title to the property in question without any real right
of possession, — ^ihe whole equitable title and beneficial inter-
est being, as was supposed, in the minor heirs of the deceased
husband of appellant and, necessarily, also the right to be
clothed with the legal title, — he was entitled to recover, since,,
as the court held, the facts could only prevail in equity aa
against him at the suit of the minors who were not parties
to this action.
The grounds for the judgment are quite novel They seenS
to fatally conflict with the elementary principle that in ordei^
to enable a person to recover in ejectment he must at least bo
entitled to possession of the property in dispute at the time of
commencing the action. One may have the legal or equitable
title without the right of possession, in which case, obviously,
he cannot recover in ejectment, and the facts showing that he
has no such right constitute a legal defense and so not only
need not, but cannot properly, be interposed as an equitable
defense in the form of a counterclaim. Page v. Eetman, 38
Wis. 320; Lawe v. Hyde, 39 Wis. 845, 854; Permcyer v. Ah
len, 51 Wis. 360, 8 K W. 268 ; Brown v. Cohn, 88 Wis. 627,
60 K W. 826; Appleton Mfg. Co. v. Fox River P. Co. Ill i
Wis. 465, 87 N. W. 453. The reason thereof is that the stat-
ute (sea 3078, Stats. 1898) as it has been construed provides
that equitable defenses only must be pleaded in form as
counterclaims and the issues be tried by the court Lombard
V. Cowham, 34 Wis. 486 ; Du Pont v. Davis, 35 Wis. 631 ;
Lawe V. Hyde, 39 Wis. 345 ; Stotuell v. Eldred, 39 Wis. 614;
Fuchs V. Treat 41 Wis. 404; Dobbs v. KeUogg, 53 Wis. 448^
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286 SUPREME COURT OF WISCONSIN. [Oct.
Harley v. Harley, 140 Wis, 282.
10 K W. 623; Weld v. Johnson Mfg. Co. 86 Wis. 549, 51
N. W. 378. Therefore it is not permissible to change the
character of the trial tribunal, as from one of law to one of
equity, by the form of the pleadings. There is an absolute
right to a jury trial of the legal issue in ejectment That
cannot be allowed to be invaded by treating such issue as equi-
table.
It cannot well be maintained but that the facts pleaded and
found here constitute a legal defense and so were not required
to be pleaded as a counterclaim, or but that they constitute
such defense and, for reasons which will hereafter be stated,
they constitute a good equitable defense as well. The learned
trial court, as before indicated, held that the minors were the
only parties really interested adversely to respondent and
that^ since they were not parties to the action, appellant could
not by counterclaiming maintain her possession and obtain
relief in their favor.
True, a counterclaim, in the general sense, must be one
constituting a cause of action in favor of the defendant
against the plaintiff. The trial court was not called upon to
deal with such a matter, but^ at the best for respondent^ with
an equitable defense, one which under the old practice was a
defense as distinguished from a counterclaim. It must be
remembered that this whole subject is governed by the Code
and, therefore, it is only confusing and misleading to cite
ancient authorities or such as do not recognize fully the Code
system.
The statute provides that "the defendant . . . may . • .
in his answer set up any matter as a defense which would
have heretofore formed an equitable defense, in which case
the answer shall contain a demand for such judgment as he
claims...." Sec. 3078, Stats. (1898). Facts showing that
a party, sued in ejectment, is in possession under or in the
right of a person who should be clothed with the legal title by
act of the person seeking to gain that possession in ejectment^
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5] AUGUST TEEM, 1903. 287
Harley v. Harley, 140 Wia. 282.
have been recognized as an equitable defense under the stat-
ute. Hegar v. C. & N. W. R. Co. 26 Wis. 624; Fisher v.
Mocrlich, 13 Wis. 321. Facts in general going to show that>
in equity, plaintiff in ejectment is not entitled to possession
by reason of the right in that regard being in defendant or
the latter and others under whom he rightfully claims, have
been so recognized. Prentiss v. Brewer, 17 Wis. 635; Du
Pont V. Davis, 35 Wis. 631, 639. Therefore, the ground
upon which the learned trial court refused appellant the bene-
fit of the defense pleaded as a counterclaim is untenable.
If the preceding were not correct the facts pleaded cooi-
stituted a plain legal defense to the action as to the home-
stead forty because a legal right to a full equitable title to
that descended to respondent to hold for life or during the
period of her widowhood (sec. 2271, Stats. 1898), and was
there vested at the time of the commencement of this action
and for a long time thereafter, as indicated in the statement
of facts. Moreover, she was entitled to possession of the
whole with her children, who were the real equitable owners,
as their representative, subject to the homestead right and
dower right, in case of there being any, against any person
not having a better right
The appellant had an undoubted right, upon the factss
stated as matter of defense and' found, to judgment establish-
ing her right of possession. She also had a right, on the same
facts pleaded as a counterclaim, to have the affirmative relief
asked in confirmation and protection of her homestead right
Moreover, if it were necessary for the other heirs to be before
the court for their due protection, or because a complete de-
termination of the controversy was otherwise impossible,
which does not seem to be the case, they should have been
brought in under sec 2610, Stats. (1898), whether there was
a request therefor by either party or not, instead of rendering
judgment for plaintiff with costs, as was done. Sec 2610,
Stats. (1898) ; McDourjald v. New Richmond R, M. Co. 125
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288 SUPKEME COUKT OF WISCONSIN. [Oct.
Harley v. Harley, 140 WU. 282.
Wis. 121, 129, 103 N. W. 244; Dahlman v. Milwaukee, 130
Wis. 468, 475, 110 K W. 483; Eagan v. McDermott, 134
Wis. 490, 494, 115 N. W. 138.
The trial court suggested without deciding, that appellant
was not entitled to dower in the property under sec. 2159,
Stats. (1898), since her husband died seised of an equitable
title only. If that be wrong the judgment is clearly errone-
ous, since, where one has an unassigned dower right and is
left, at the death of her husband, with her children in posses-
sion of the property^ in which such right subsists, she may re-
tain such possession by virtue of sec. 3872, Stats. (1898),
without having such dower assigned. She may assert such
right effectively in ejectment both for defense and attack.
Sec. 3094, Stats. (1898). Here again, as at substantially
all points in the matter of judicial procedure, the Code gov*
ems, not the common law.
The question of whether a widow is entitled to dower in
real estate of which her husband dies possessed of only a mere
equitable title, has been recently considered and resolved in
the negative by this court in Will of Prasser, anie, p. 92^
121 N. W. 643. It was there said that an estate of inherit-
ance, as the term is used in the statute, is just what such
term signified at common law, consequently that the statute
gives dower only out of legal estates. But where the hus-
band dies seised of the full equitable title and the OAi^er of
the whole beneficial interest, with only the mere legal title
outstanding in a person having no duty to perform in respect
to the property, as in this case, but to convey it to the equi-
table owner, the estate is to all intents and purposes a legal
estate, — an estate of inheritance, within the meaning of the
statute, in which the wife is entitled to dower.
The last foregoing may be, and probably is, out of harmony
with some decisions elsewhere imder statutes similar to ours,
but it needs and will have no defense at this time by refer-
ence to supporting authorities. It is in harmony with the
doctrine of this court that the dower right is to be favored in
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6] AUGUST TERM, 1909. 289
Napa Valley W. Ck). v. Casanova, 140 Wis. 289.
the law (Munger v. Perkins, 62 Wis. 499, 22 N. W. 511),
and the better rule as we are constrained to believe. If the
statute will reasonably permit of a construction which will
save the dower right and also one which will defeat it, and
there is uncertainty as to which was in the minds of the law-
makers when the statute was adopted, the former should pre-
vail. At such time, as now, such an interest in real prop-
erty as that of which appellant's husband died possessed was
regarded as realty; an estate of inheritance, in the broad
sense of the term, which passes to the heirs and to which the
homestead right attaches. Chopin v. Runte, 75 Wis. 361, 44
if. W. 258. We are entirely satisfied with the decision re-
cently rendered, treating a full equitable title and ownership
of the entire beneficial interest in realty and right to be im-
mediately clothed with the legal title, as here, as substantially
a legal estate and within the meaning of the dower statute.
By the Court. — The judgment is reversed, and cause re-
manded with directions to render judgment in appellant's
favor in accordance with this opinion.
TiMLiiT, J., dissents.
Napa Valley Wine Company, Respondent, vs. Casanova
and another, Appellants.
8€ptemJ>€r 1^— October 5, 1909,
Agency: Lialility oj principal for purchases: Secret agreement Umit-
ing authority.
Defendants having sold the stock of liquors and glassware nsed In
a saloon business and turned the business over to the purchaser,
to be continued by him in their name, under licenses Issued to
them, until the purchase price and cost of the licenses was
repaid, a private and undisclosed agreement that he should not
commit them to liability for supplies purchased by him for the
business would not protect them against a claim for such sup-
plies by one who dealt with him in the ordinary line of such
business without knowledge of the restriction.
Vol. 140 — 19
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290 SUPEEME COURT OF WISCONSIN. [Oct.
Napa Valley W. Co. v. Casanova, 140 Wis. 289.
Appeal from a judgment of the circuit court for St Croix
county: E. W. IIelms, Circuit Judge. Affirmed.
The defendants, copartners, conducted a brewery business
at Hudson, Wisconsin. They had come into ownership of
the stock, furniture, fixtures, and lease of a saloon at St Jo-
seph, and were conducting the same through an employee,
when they effected a sale to one McMahon of the stock of liq-
uors and glassware; the defendants retaining the lease and
furniture and agreeing to procure the licenses, both state and
mimicipal, in their own name, whereupon McMahon was to
take over the business and pay over to the defendants, from
sales, as rapidly as possible, the purchase price and the cost
of the licenses. This he proceeded to do, with the licenses
publicly exhibited inside and a sign of the defendants* beep
on the exterior of the building. The plaintiff sold McMahon
a quantity of liquors for use in the saloon upon McMahon's
statement that he was running the saloon for the defendants,
which he confirmed by calling attention to the licenses. De-
fendants refusing to pay, this action was brought against
them.
The court found as a fact '^f rom all the transactions accom-
panying the installation of McMahon that it was understood
between him and the defendants that the business of running
such saloon should be continued in the name of the def^id-
ants.** Also that the goods were sold upon the belief that
the business was being conducted for and in behalf of the de-
fendants and were used in such business. Accordingly jud^
ment was rendered for the plaintiff for the unpaid balance
of the purchase, some $60, from which the defendants ap-
peal.
A. J. Kinney, for the appellants.
For the respondent there was a brief by Baker & Saven,
and oral argument by Spencer Haven.
Dodge, J. While, as the trial court says, the evidence is
somewhat nebulous and indefinite as to what the parties un-
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5] AUGUST TERM, 1909. 291
Fowler v. Crandall, 140 Wis. 291.
derst(X)d, yet there was a fair issue of fact for that court to
decide. The evidence does not preponderate at all clearly
against his conclusion that the intention was that the business
should be run as that of the defendants until they were reim-
bursed the amount of McMahon's indebtedness to them; and
that one of the usual and essential powers incident to the
running of such a business, remote from the principal's resi-
dence, is the purchase of supplies to be used therein. This
being so, a private and imdisclosed agreement that he should
not commit defendants to liability for such purchases would
not protect them against a claim by one dealing with McMa-
hon in the ordinary line of such business without knowledge
of such restriction. Roche v. Pennington, 90 Wis. 107, 112,
G2 K W. 946; McD'ermott v. Jackson, 97 Wis. 64, 71, 72
K W. 375 ; Parr v. Northern E. Mfg. Co. 117 Wis. 278, 287,
93 K W. 1099; Abrohams v. Bevillon, 129 Wis. 235, 107
K. W. 656; Ferris v. Kilmer, 48 K Y. 300, 304.
By the Court. — Judgment affirmed.
Will of Muixatt: FowtEB, by guardian ad litem. Appel-
lant, vs. Ceandall, Respondent
Beptember 1& — October 5, 1909.
WiUs: Mental capacity: Undue influence: Evidence.
1, Evidence showing, among other things, that although the facul-
ties of a testatrix were somewhat Impaired hy age she still had
mental powers sufficient to call to mind the particulars of her
business and to hold them In mind for such a time as to per-
celye and understand their obvious relations and to form a rar
tlonal Judgment in respect to them, Is held to sustain a finding
that she had sufficient mental capacity to make a will.
2. Evidence which, among other things, fails to show any solicita-
tion by any one for the making of the will, or that the testatrix
was susceptible to the Influence of others in such matters, Is
held to sustain a finding that the execution of the will was not
procured by undue influence.
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293 SUPEEME COURT OF WISCONSIN. [Oct.
Fowler v. Crandall, 140 Wis. 291.
Appeal from a judgment of the circuit court for Dunn
county: E. W. Helms, Circuit Judge. Affirmed.
This proceeding was commenced in the coimty court of
Dunn county by a petition for the probate of the will of Mary
B. MuUan, deceased. A contest was filed to the probate in
behalf of Hattie Fowler, an insane daughter and the sol6 heir
at law of the deceased. The county court found that the tes-
tatrix did not have sufficient mental capacity to make a will
at the time of the execution of the alleged will and that the
execution of it was obtained by fraud and undue influence.
Probate of the writing was denied. Upon appeal to the cir-
cuit court judgment was entered reversing the judgment of
the county court and ordering the probate of the alleged will.
This is an appeal from such judgment.
Mary R Mullan died at Red Wing, Minnesota, February
13, 1908, aged seventy-four and one-half yearsi The alleged
will was executed two months before at the residence of R. D.
Crandall in Eed Wing, to which the deceased had gone in the
previous October from her home at Menomonie, Wisconsin.
Haitie Fowler, a daughter and the sole heir at law of the de-
ceased, is the contestant. She has been confined in a county
insane asylum since 1892. The deceased also left surviving
her three sisters and four brothers. Maggie Crandall, the
wife of iJ. D. Crandall, was taken into the home of the de-
ceased when she was seven years of age, and continued to
live there imtil her marriage. She was nevier adopted, but
is referred to in the will as the adopted daughter of the de-
ceased. After providing for the debts of the deceased and
for funeral expenses, the will gives Haitie Fowler $3,000;
$10 is given to each of the brothers and sisters of the de-
ceased ; and the residue of the estate is then devised to Maggie
Crandall and her husband. The deceased at the time of her
death possessed about $100 worth of personal property. The
balance of her estate, between $26,000 and $28,000, consisted
of real estate, about one half of which was situated in Minne-
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5] AUGUST TERM, 1909. 293
Fowler v. CrandalJ, 140 Wis. 291.
sota and one half in Wisconsin. Her indebtedness, exclusive
of $1,000 incurred as funeral expenses, was from $5,000 to
$6,000. The estate of the deceased had been accumulated by
conducting a millinery store in Menomonie. She had been
twice married; her first husband dying some fifteen years
before she did, and her second husband four or five years be-
fore.
In behalf of the contestant of the will it is claimed that the
evidence introduced shows that the deceased was of insuffi-
cient mental capacity to make a will ; that she was physically
weak and feeble, and that her mental faculties had become
impaired to such an extent that she was imable to compre-
hend and understand her business affairs; that she was un-
able to keep in mind her relationship and natural obligations
to her daughter and relatives, and lost mental control of her-
self and her property to an extent which evinced her incapac-
ity to transact business or to make a will ; and that this con-
dition had existed for a considerable time before the making
of the will in question. It is also claimed that she was so
nnduly influenced by one Boardman and the Crandalls to
make this will that it is not the expression of her wishes and
desires in the final disposition of her property, and that there-
fore it was a fraudulent proceeding by these parties for their
personal gain and benefit. On the other hand it is claimed
that the evidence shows that the deceased had never been a
good manager of her property; that the feebleness of body
and dullness of the senses were only the accompaniments of
age, and that the insistence of the deceased for participation
in her numerous business transactions indicates that she re-
tained an unusual and sufficient mental capacity to do busi-
ness and to attend to her affairs; that, far from being the
victim of undue influence, she was a self-reliant and assertive
person and always attended to her affairs; that she fully
comprehended and understood them, and acted freely in the
making of the will and the disposition of her property.
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294: SUPREME COUET OF WISCONSIN. [Oct.
Fowler v. Crandall, 140 Wis. 291.
After a full hearing the circuit court held that she had
sufficient mental capacity to make a will and that she was not
induced to make it by the undue influence of others, Thd
court ordered the will admitted to probate.
J. B, Mathews and R. E, Bundy, for the appellant
For the respondent there was a brief by Freeman & Free-
man, and oral argument by (7. E. Freeman.
SiEBECKER, J. It is arguod that the trial court's finding
that the testatrix had mental capacity to make the will is
against the clear preponderance of the evidence. In passing
on this question the fact that the trial court had the fullest op-
portunity to observe the witnesses while testifying and to give
proper weight to their evidence must not be overlooked. Its
conclusions, therefore, are of weight and cannot be disturbed
unless it is apparent from an examination of the evidence
that they are against the clear preponderance of the evidence.
It is strenuously asserted that the evidence clearly shows that
Mrs. Mullan was so weak mentally at the time the will was
made that she was incapable of understanding and compre-
hending the nature of the act, the extent of the disposition
made by the will, who were the natural objects cf her bounty,
and the manner in which she desired that disposition should
be effected. Reliance for this contention rests mainly on the
evidence tending to show the change in her physical health
and strength, her changed mental attitude, and her unsuccess-
ful administration of her business and financial affairs in the
later period of her life. It is undisputed that she had been
an intelligent person of strong will and fair business ability
in the prime of her life. She had always evinced the char-
acteristics of independence and self-reliance in the conduct
of her affairs. An examination of the evidence discloses
that these characteristics were impaired in her old age, but
there was not such a degree of impairment of her faculties
and abilities in comprehending and understanding her busi-
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5] AUGUST TERM, 1909. 295
Fowler v. Crandall, 140 Wis. 291.
ness affairs as constitutes mental incompetency to make a
will. It is shown that she still possessed mental powers suf-
ficient to call to mind the particulars of her business and the
affairs of life, and to hold them in mind for such a time as
to perceive and understand their obvious relations and to
form a rational judgment in relation to them* This condi-
tion of her mental faculties evinced sufficient mental capacity
to enable her to make a will. »
As to whether the testatrix was unduly influenced to make
this will, we are persuaded that the trial court in its opinion
correctly expresses the state of the evidence on this issue. He
found that the evidence was devoid of anything showing any
solicitation by Crandall or his wife or any other person for
the making of this will, that the evidence is well-nigh barren
of facts tending to show that she was susceptible of being in-
fluenced in dealing with her property, and that her acts and
conduct refute the claim that she was susceptible to the in-
fluence of others in these matters. Her attitude toward the
CrandaUs and others dealing with her was that of a self-
willed and self-reliant person. While the transaction of the
settlement with her tenant and the giving of the powers of at-
torney to Crandall and Boardman show a want of good busi-
ness management and may indicate a want of fair dealisg
with her by all of these persons, it is not sufficient to show
that she was in fact unduly influenced by them to make this
will. We must hold that the trial court^s conclusion on this
question cannot be disturbed by this court, and that the judg-
ment admitting the will to probate was correct.
By the Court. — Judgment affirmed
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296 SUPREME COURT OF WISCONSIN. [Oct.
Vetter v. Southern Wis. R. Co. 140 Wis. 296.
Vetteb, Admini8tratx>r, Appellant, vs. Southerk Wiscoit-
siN Railway Company, Respondent
Beptemher 16—Octoher 5, 1909.
Btreet railways: Collision with vehicle near track: Duty to took and
listen for car: Contributory negligence: Question of law: Special
verdict: Inconsistent findings: Changing answer,
1. The question of contributory negligence Is or may be a mixed
question of law and fact, but when facts are found In a special
verdict showing contributory negligence without room for con-
flicting inferences, the conclusion of law necessarily follows,
and the court may properly change the answer to another ques-
tion whereby the jury finds that there was no contributory neg-
ligence.
2. In an action for death of a person caused by collision between his
wagon and a street car which came from behind, findings in a
special verdict, supported by the evidence, that before his team
entered npon the track or went so near that the car could not
pass without striking his wagon the deceased did not look or
listen for the approach of the car from the rear, and that by
the exercise of ordinary care and prudence he could have seen
the car In time to have avoided the accident, establish the con-
tributory negligence of the deceased and are not nullified by a
further finding that he was not guilty of such negligence.
3. A person driving on the highway is bound to look and listen for
the approach of a street car before going so near the track that
a car cannot pass without striking his wagon; and it is imma-
terial in such a case whether or not he intends to drive upon or
across the track.
Appeal from a judgment of the circuit court for Dane
county : James O'Neill, Judge. Affii'med.
This action was brought by the administrator to recover
damages for the alleged negligence of the defendant causing
the death of plaintiff's intestate. The negligence alleged is
in the careless operation of defendant's car and the failure
to warn the deceased of the approach of said car. The an-
swer denies generally the allegations of the complaint and al-
leges contributory negligence of plaintiff's intestate. The
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5] AUGUST TERM, 1909. 297
Vetter v. Southern Wis. R. Co. 140 Wis. 296.
•case was submitted to the jury and the following verdict re-
turned:
"(1) At what rate of speed was defendant's car moving at
the time of the accident? A. Eight miles per hour.
"(2) At what rate of speed was the deceased driving his
team at the time of the accident? A. Three and one-half
miles per hour.
"(3) After turning from Emerald street into Park street
and while approaching the place of accident, was the bell or
gong of the defendant's car sounded ? A. Yes.
"(4) Did the motorman try to stop the car as soon as it
was apparent that there might be a collision ? A. Yes.
"(5) Was the motorman guilty of any want of ordinary
eare in the operation of his car at the time of the accident ?
il. Yes.
"(6) If you answer the last question *Yes/ then was such
want of ordinary care the proximate cause of the death of the
deceased? A. Yes.
"(7) Did the deceased, before his team entered upon the
track or went so near it that the car could not pass him with-
out hitting his wagon, look and listen for the approach of a
car from the rear ? A. No.
"(8) Could the deceased, in the exercise of ordinary care
and prudence, haver seen the approaching car in time to have
avoided the accident ? A. Yes.
"(9) Was the deceased guilty of any want of ordinary care
which contributed to the accident ? A. No.
"(10) In case the court should be of the opinion that the
plaintiff is entitled to recover, at what sum do vou assess his
damages ? A. $6,000."
Before the special verdict was submitted to the jury plaint-
iff objected to questions Nos. 1, 2, 4, and 7 for the reason that
they did not call for a response to any issue raised by the
pleadings, but called for a finding of an evidentiary char-
acter, and also requested the court to submit a question, to be
numbered 3^, as follows : "If your answer to the third ques-
tion is *Yes,' then .what distance was the motorman from de-
ceased's vehicle at the time the bell or gong was sounded ? "
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298 SUPREME COUET OF WISCONSIN. [Oct.
Vetter v. Southern Wis. R. Co. 140 Wis. 296.
Aod also requested that the court substitute for question.
No. 7 two questions as follows :
"No. 7. Was deceased, just before the accident, intending
to drive upon or across the track of the defendant ?
"No. 7|. If you answer the last question 'Yes,' then did
deceased, before nearing or entering upon said track, look
and listen for the approach of a car from the rear? "— -
which requests were denied and due exceptions taken.
The usual motions were made for judgment on the verdict
and to change the answers to questions in the verdict The
court changed the answer "Yes'' to question No. 5 to "No,"
and changed the answer "No" to the ninth question to "Yes,"
and granted the defendant's motion for judgment on the ver-
dict dismissing the complaint Plaintiff moved for a new^
trial, which was denied, and judgment was rendered for the
defendant dismissing the complaint, from which this appeal
was taken.
For the appellant there was a brief by Miner & Elver, and
oral argument by F. M, Miner.
For the respondent there was a brief by Jones & Schubring,
and oral argument by B. W. Jones.
Kerwin, J. The accident complained . of occurred on
South Park street in the city of Madison, between Erin street
and the city limits. South Park street is a macadamized
street with cement curbs, practically level, and running in a
northerly and southerly direction. It is thirty-six feet wide
from curb to curb, with a street-car track in the center and a
space of fifteen and one-half feet between the rail and the
curb. Commencing at a point about seventy-five feet from
the city limits the track of the defendant begins to curve to-
make the turn onto Oregon road, somewhat narrowing the
space between the rail and the east curb of the street, so that
at the city limits this space is only about nine feet eight
inches wide. Erin and Emerald streets meet South Park
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5] AUGUST TEEM, 1909. 299^
Vetter v. Southern Wis. R. Co. 140 Wis. 296.
Street at right anglea The block between Erin and Emerald
streets is about 316 feet long, and the block between Erin
street and the city limits is 162 feet Defendant's streetrcar
track runs on Emerald street, turns on South Park street,
and runs southerly on Oregon road. The greater part of the
block between Erin and Emerald streets is vacant and prac-
tically unobstructed, so that one driving along South Park
street between Emerald and Erin streets can look for some
distance up Emerald street.
On the day in question, about 3 o'clock, the deceased was
driving a team of horses attached to a broad-tired lumber
wagon with a box thereon south along the east side of the
street between Emerald street and the city limits, sitting on
a high seat, with the reins aroimd his body over his shoulder.
The street between him and the city limits, as well as between
him and Emerald street, was unobstructed. While thus driv-
ing his team, one of the defendant's cars turned from Emer-
ald street onto South Park street. There is evidence tending
to show that when the car was within less than thirty feet of
deceased he drove onto or close to the track and directly out
again, but not soon enough to prevent a collision between the
hind wheel of his wagon and defendant's car, which collision
produced the injury complained of.
The jury found by their answers to the seventh and eighth
questions that before deceased's team entered upon the track
or went so near that the car could not pass without striking
his wagon, he did not look and listen for the approach of a
car from the rear, and also that he could, by the exercise of
ordinary care and prudence, have seen the approaching car
in time to have avoided the accident. These findings are
fully supported by the evidence and entitle the defendant ta
judgment on the verdict unless their efi'ect be nullified by the
ninth finding of the special verdict, which finds that the de-
ceased was not guilty of any want of ordinary care which
contributed to the accident Dummer v. Milwaukee E. B. £-
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300 SUPREME COURT OF WISCONSIN. [Oct.
Vetter v. Southern Wis. R. Co. 140 Wis. 296.
L. Co. 108 Wis. 589, 84 N, W. 853 ; Teach v. Milwaukee E.
R. d L. Co. 108 Wis. 593, 84 N. W. 823; Morice v. Mil-
waukee E. R. & L. Co. 129 Wis. 529, 109 N. W. 567;
Cawley v. La Crosse City R. Co. 101 Wis. 145, 77 N. W.
179; Hogan v. Winnebago T. Co. 121 Wis. 123, 98 N, W.
928; Hanlon v. Milwaukee E. R, & L. Co. .118 Wis. 210, 95
N. W. 100; Stafford v. Chippewa Valley E. R. Co. 110 Wis.
331, 85 N. W. 1036; McClellan v. Chippewa Valley E. R.
<Jo, 110 Wis. 326, 85 N. W. 1018.
The court changed the answer to the ninth question from
"No'' to "Yes," and this ruling is complained of. The an-
swers of the jury to the seventh and eighth questions found
the facts which established the contributory negligence of the
plaintiff. It is true that contributory negligence is or may be
a mixed question of law and f act^ but where the facts are
found or are undisputed showing contributory negligence and
there is no room for conflicting inferences upon the estab-
lished facts, then the conclusion of law necessarily follows.
The court was therefore clearly right in changing the answer
to the ninth question to correspond with the facts found by the
jury in the seventh and eighth questions. Wanzer v. Chip-
pewa Valley E. R. Co. 108 Wis. 319, 84 N. W. 423 ; St. Paul
B. Co. V. Kemp, 125 Wis. 138, 103 N. W. 259; Hogan v.
C, M. & St. P. R. Co. 59 Wis. 139, 17 N. W. 632; Martin
V. Bishop, 59 Wis. 417, 18 N. W. 337; Pick v. C. & N. W.
R. Co. 68 Wis. 469, 32 N. W. 527 ; Rowley v. C, M. & St. P.
R. Co. 135 Wis. 208, 115 N. W. 865; Hogan v. Winnebago
T. Co. 121 Wis. 123, 98 N. W. 928; Rahr v. Manchester P.
A. Co. 93 Wis. 355, 67 N. W. 725; Erause v. Busacker, 105
Wis. 350, 81 N. W. 406.
Error is assigned because of refusal to submit the follow-
ing question in lieu of question No. 7 submitted by the court :
"Was the deceased just before the accident intending to
drive upon or across the track of the defendant ? If you an-
swer such question 'Yes/ then did the deceased, before near-
ing or entering upon the track, look and listen for the ap-
proach of the car from the rear ? ''
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5] AUGUST TERM, 1909. 301
State ex rel. AVagner v. Dahl, 140 Wis. 301.
We think there was no error in the refusal to submit this
question. The fact that the deceased was within the zone
of danger when struck was undisputed, and he was bound to
look and listen before entering the place of danger, and it
was entirely unnecessary to submit to the jury what the de-
ceased was intending to do just before the accident.
Some criticism is made upon the instructions and failure
to instruct respecting contributory negligence, but we find no
prejudicial error in this regard. The facts constituting con-
tributory negligence were fairly submitted to the jury and
found against the plaintiff. Therefore the defendant was
entitled to judgment
It follows that the judgment must be affirmed.
By the Court, — The judgment of the court below is af-
firmed.
State ex bel. Wagner, Appellant, vs. Dabl, State Treas-
urer, Respondent
Septemher 17— October 5, 1909.
OfjUcers: Vested rights: Power of removal: Review "by courts: Civil
service law construed: Presumption as to obedience to laws:
Mandamus: Exercise of discretion: Costs,
L Where no definite term of office is fixed by law. the power to re-
move an incumbent is incident to the power to appoint in the
absence of some constitutional or statutory provision to the con-
trary.
2. An office is not regarded as property, nor is the right to hold
office a vested one.
3. The power of amotion from office is not a judicial but an admin-
istrative power, though it be exercised in a judicial manner.
4. Sec. 22, ch. 363, Laws of 1905, provides that certain employees In
the civil service of the state shall not be removed or discharged
except for just cause, vests the power of removal for such cause
in the appointing officer, and makes no provision for any review
of his action by any other body or tribunal. Held, that where
an appointing officer in removing an employee acted within his
jurisdiction, i e, when the cause assigned is a "just cause"
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302 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Wagner v. Dahl, 140 Wis. 301.
within the meaning of the statute, and there is nothing to show
that he acted arbitrarily or in bad faith, the courts will not
review his decision as to the fact of the existence of such cause.
5. The presumption is that public officers will obey the laws and not
wantonly or criminally violate them.
6. Mandamus will not lie to control or review the exercise of the
discretion of any court, body, or officer when the act performed
Is judicial or ^uo^i-judicial ; although it may be Invoked to com-
pel the exercise of such discretion.
7. Witness fees paid to Jurors for attendance upon the hearing of a
motion for a new trial, which was based in part on alleged mis-
conduct of one of the jurors, are held to have been properly al-
lowed in the taxation of costs.
Appeal from a judgment of the circuit court for Dane
<x>unty : E. Ray Stevens, Circuit Judge. Affirmed.
The relator was employed as bookkeeper in the office of
the state treasurer and was discharged from his employment
by that officer. Incompetency and insubordination were the
causes assigned for his removal. Relator procured an al-
ternative writ of mandamus ordering the defendant to rein-
state him in his employment or show cause why he should not
be reinstated. Such writ was granted on a petition in which
the relator set forth, among other things, that he was neither
incompetent nor insubordinate. The defendant, by his re-
turn to the writ, justified his action on the grounds stated.
The issues made up by the petition for the writ and the re-
turn and the answer thereto were submitted to a jury for de-
termination. The jury foimd that the relator was incompe-
tent and that he did not perform all the lawful directions
given him by his superiors in the office of the state treasurer.
Judgment was entered on such verdict in favor of the de-
fendant. To review alleged errors in the trial of the action
the relator brings this appeal.
For the appellant there was a brief by Miner & Elver, and
oral argument by E, T. Elver.
For the respondent there was a brief by Jones & Schubring,
and oral argument by B. W. Jones.
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5] AUGUST TEEM, 1909. 303
State ex rel. Wagner v. Dahl, 140 Wis. 301.
Babnes, J. It is a well-nigh universal rule that where no
•definite term of office is fixed by law, the power to remove an
incumbent is an incident to the power to appoint, in the ab-
sence of some constitutional or statutory provision to the con-
trary. Ex parte Hervnen, 13 Pet 230 ; Parsons v. U. 8. 167
U. S. 324, 17 Sup. Ct. 880 ; and collection of cases in 37
Cent. Dig., title "Officers,'? § 9, and in 29 Cyc, same title,
1371, note 72. Our law does not regard an office as a prop-
erty right Neither is the right to hold office a vested one.
Sfaie ex rel. Starkweather v. Superior, 90 Wis. 612, 619, 64
:N^. W. 304; State ex rel. Cook v. Houser, 122 Wis. 534, 603,
100 N. W. 964. The power of amotion from office is not a
judicial power, but is an administrative one, though it be ex-
ercised in a judicial manner. State ex rel. Starkweather v.
Superior, supra; State ex rel. Cook v. Houser, supra; Nehr-
ling V. State ex rel. Thai, 112 Wis. 637, 645, 88 K W. 610.
It 18 clear that the limitations on the power of removal by
the treasurer, if they exists must be found in some statute or
statutes of the state, and the only one which it is claimed af-
fects the question is sec. 22, ch. 363, Laws of 1905, which
reads as follows:
"No subordinate or employee in the competitive class, non-
competitive class, or the labor class of the civil service of the
state, who shall have been appointed under the provisions of
this act, or the rules made pursuant thereto, shall be removed,
suspended for more than fifteen days, discharged or reduced
in pay or position, except for just cause, which shall not be
religious or political. In all cases of removal the appointing
officer shall, at the time of such action, furnish to the sub-
ordinate his reasons for the same and allow him a reasonable
time in which to make an explanation. The reasons for re-
moval and the answer thereto shall be filed in writing with
the commission. '^
It will be observed that the treasurer, under the provisions
•of the law quoted, might not remove a subordinate except
for just cause and that such cause should not be religious or
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304 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Wagner v. Dahl, 140 Wis. 301.
political. The statute makes no provision for any review, by
any other body or tribunal, of the action of an appointing of-
ficer in removing a subordinate. The important question in
the case, therefore, is the determination of how far and ta
what extent the courts have authority or jurisdiction to re-
view the act complained of by the relator.
In Slate ex rel. Gill v. Waiertown, 9 Wis. 254, the statute
under consideration authorized the common council of the
city to remove certain officers for "due cause." No provision
was made for an appeal frqm or review of the decision of the
common council. It was held that what constituted duo
cause was a question of law to be determined by the courts,
but that the discretion vested in and exercised by such a body
or tribunal would not be controlled by mandamus. In other
words, it was held that the court-s would decide whether the
cause assigned for removal was "due cause" within the mean-
ing of the law, but would not determine whether the council
was right or wrong in its conclusions upon the facts that the
cause assigned for removal in fact existed.
State ex rel. Kennedy v. McOarry, 21 Wis. 496, involved
the removal of an inspector of the house of correction by the
board of supervisors of Milwaukee county. The statute au-
thorized the removal for "incompetency, improper conduct,
or other cause satisfactory to said board." The resolution
removing the inspector recited that he was removed for "in-
competency, improper conduct, and disobedience of the or-
ders of the board." No provision was made in the lawjfor a
review of the decision of the county board. It was held
(1) that the power of the board to discharge was absolute
and its determination was final when acting within the scope
of its power; (2) that if the board should attempt to dis-
charge for a cause not recognized by law and not affecting
the competency or the fitness of the employee, such action
would be an excess of power and not a removal under the
statute, and would be equivalent to a removal without cause —
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6] AUGUST TEEM, 1909. 305
State ex rel. Wagner v. Dahl, 140 Wis. 301.
a mere arbitrary removal not warranted by statute; (3) that
when a cause recognized by statute is assigned, the power to
determine whether it exists or not is vested exclusively in the
board, and its decision on the facts cannot be reviewed by
the courts; (4) that the only question for judicial cogni-
zance was whether the cause assigned for removal was one for
which removal might be made under the statute.
State ex rel, Willis v. Prince, 45 Wis. 610, involved the re-
moval of the county clerk of Ashland county under a statute
(sec. 6, ch. 14, R. S. 1858) which authorized the county
board to remove such an oflScer "when, in their opinion, he is
incompetent to execute properly the duties of his oflSce, or
when, on charges and evidence, it shall appear to said board
that he has been guilty of official misconduct, or habitual or
wilful neglect of duty, if, in the opinion of said board, such
misconduct or neglect shall be a sufficient cause for removal."
The court said that the statute gave a wide discretion to
boards of supervisors, which "will not be revised or controlled
except in most clear and conclusive cases of abuse." The
proceeding was one of qiu) warrarUo, and the court further
held that the only questions it would consider were: "Had
the board of supervisors jurisdiction, and did they make the
proper order and a final adjudication in the case, and were
the records produced sufficient evidence of both ?" This case
is an extreme one in view of the provisions of ch. 163, Laws
of 1869, which gave the county clerk a right to appeal from
the order removing him, and which seemed to contemplate
that he should have a trial de novo in court
In State ex rel CooJe v. Houser, 122 Wis. 534, 100 N. W.
964, the construction of sec. 35, Stats. (1898), was involved.
In the event of two conventions of the same party being held,
the secretary of state was required to give preference in des-
ignation on the official ballot to the nominees certified by the
state central committee. The statute did not provide for any
review of the action of such committee in making its certi-
Vou 140 — 20
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»06 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Wagner v. Dahl, 140 Wis. 301.
ficatioiL The right of the court to review the decision of the
committee was combated^ and it was held that where a new
right is created by statute and the statute provides a method
by special tribunal for die enforcement or protection of such
right, and makes no provision for a review of the decision of
such tribunal, the remedy given is exclusive, provided the
tribunal acts within its jurisdiction. Op. Justice Marsh-
all, page 5T0 of 122 Wis. (100 K W. 975), and of the
present chief justice, page 595 of 122 Wis. (100 N. W.
984). Such is the law elsewhere generally. Miller v. Clark,
62 Kan. 278, 62 Pac. 664; Chapman v. Miller, 52 Ohio St
166, 39 N. E. 24; People ex rel. Ward v. Roosevelt, 151
N. Y. 369, 45 N. E. 840; People ex rel Lowry v. District
Covrt, 82 Colo. 16, 74 Pac. 896 ; State ex reL Brewer v.Ah-
hay, 82 Miss. 569, 36 South. 153 ; State ex rel. Yates v. Crit-
tenden, 164 Mo. 237, 64 S. W. 162.
We have in this case a right created by statute by which
oertain state employees may not be discharged except for just
cause, and the power of removal for such cause is vested in
the appointing oflScer, with no provision in the law for re-
viewing his decision, so that the situation is similar to that
before the court in State ex rel. Cook v, Houser, supra.
The instances are numerous where public officers, public
boards, and nonjudicial bodies are required, in the perform-
ance of their duties, to pass upon and decide questions of fact.
Various state officers, boards of review, commissioners in lay-
ing out highways, the board of dental examiners, the board of
control, the board of regents, and numerous other kindred
bodies that might be mentioned fall within lie category. In
the absence of a statute giving the right to review on the mer-
its, errors in judgment committed by such persons or bodies
will not be reviewed by the courts. The ultimate decision on
questions of fact must rest somewhere, and, when the ques-
tion presented is one pertaining to legislative rights and privi-
leges, the decision of the special tribunal appointed to decide
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5] AUGUST TERM, 1909. 307
State ex rel. Wagner ▼. Dahl, 140 Wis. 301.
the question is final, if it acts within its jurisdiction and not
arbitrarily, and no review is provided for. State ex rel. Cof-
fey V. Chittenden, 112 Wis. 569, 88 N. W. 687 ; State ex rel
Vilas V. Wharton, 117 Wis. 568, 94 N. W. 359 ; State ex rel
Augusta v. Loshy, 115 Wis. 57, 90 N. W. 188 ; Stale ex
rel Heller v. Lazier, 103 Wis. 460, 79 N. W. 777 ; State ex
rel N. C. Foster L. Co. v. WiUiams, 123 Wis. 61, 100 N. W.
1048. Moreover, the cases hold that mandamus will not lie
to control or review the exercise of the discretion of any court,
body, or officer when the act performed is judicial or quasir
judicial While mandamus may be invoked to compel the
exercise of the discretion vested, it cannot compel such dis-
cretion to be exercised in any particular way. Staie ex rel.
Oericlce v. Ahnapee, 99 Wis. 322, 326, 74 N. W. 783; State
£x rel FouHh Nat. Bank v. Johnson, 103 Wis. 591, 622, 79
K W. 1081 ; State ex rel Court of Honor v. Oiljohann, 111
Wis. 377, 386, 87 N. W. 245 ; State ex rel Coffey v. ChUten-
den, 112 Wis. 569, 574, 88 K W. 587 ; State ex rel Oinn tr.
Wilson, 121 Wis. 523, 526, 99 N. W. 336; State ex rel Ru-
dolph V. Hutchinson, 134 Wis. 283, 287, 114 N. W. 453;
State ex rel VanderwaU v. Mayor, etc. 134 Wis. 437, 442,
114 N. W. 802; State ex rel Davem v. Rose, post, p. 360,
122 K W. 751.
We can see nothing in the civil service law that would war-
rant giving it any other or different construction from that
almost uniformly given to other acts involving situations simi-
lar to the one presently under consideration. The purpose
of the legislature in passing the act was apparent We do not
perceive how the conclusion reached will operate to defeat
or impair that purpose. It is not to be presumed that officers
to whom the people of the state have intrusted important pub-
lic functions will violate their oaths of office and become per-
jurers because they may want to remove one employee to
make place for another. In case of removal the right of se-
lection is ordinarily limited to choosing a successor from one
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308 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Wagner v. Dahl, 140 Wis. 301.
of three names certified by the civil service commission. The
presumption is that public oflScers will obey the laws and not
wantonly and criminally violate them, and the l^slature
may well have had in mind the advisability of placing the
absolute power of discharge for just cause in the heads of de-
partments, so that a high degree of efficiency and discipline
might be maintained and the public business might be trans-
acted with accuracy and with reasonable promptness. The
causes for removal assigned by the state treasurer in the pres-
ent case were just causes for removal within the meaning
of sea 22, ch. 363, Laws of 1905. The treasurer acted within
his jurisdiction in maMng the removal for the cause specified,
and there is nothing to show that he acted arbitrarily, or other-
wise than in perfect good faith, in making it Whether he
wai right or wrong in reaching the conclusion which he did
on the facts is not a question for the courts to decide. The
decision of that question has, wisely we think, been left with
the treasurer and not with the courts. Indeed, the question
discussed has been so frequently decided that a mere citation
of the authorities should suffice.
It follows that the motion of the defendant to take the case
from the jury and dismiss the action should have been
granted. This view of the case renders the errors complained
of on the trial immaterial with one exception. Objection was
made to the allowance of witness fees paid two jurors,
amounting to $6.60, for attendance upon the hearing of the
motion for a new trial, which was in part based on alleged
misconduct of one of the jurors. We think the items were
properly taxed and that the judgment appealed from is cor-
rect.
By the Court. — Judgment affirmed.
Timlin, J., took no part.
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5] AUGUST TERM, 1909. 309
Olson ▼. U. a Sugar Co. 140 Wis. 309.
Olson, Eespondent, vs. United States Sugab Company,
Appellant
Septem1>er 17— October 5, 190X
OosU: Btatute construed.
That part of subd. 6, sec. 2918, Stats. (1898), allowing costs to the
plaintiff in an action on contract when he shall recover $100 or
more, is not a qualification or repeal of subd. 7, although it was
originally enacted later than subd. 7 and overlaps the ground
covered thereby; and in a case coming within the terms of
subd. 7, where the recovery was more than $50 but lees than
$100, plaintiff was entitled to costs.
Appeai. from a judgment of the circuit court for Dane
county: E. Ra.y Stevens, Circuit Judge. Affirmed.
Action on contract wherein a duly verified complaint al-
leged a liability of $236. Judgment was recovered for only
$93.92 damages. Costs were taxed in favor of plaintiff
against due objection and exception by the defendant, and in-
cluded in the judgment. From the portion of the judgment
awarding costs defendant brings this appeal.
For the appellant there was a brief by Aylward, Dames &
Olbrich, and oral argument by Carl Hill.
For the respondent there was a brief by Murphy, Kroncke
-£ Sauthoff, and oral argument by Oeorge Kroncke.
Dodge, J. The allowance of costs to the plaintiff is very
<»learly authorized by the words of subd. 7, sec. 2918, Stats.
<1898) :
''In an action on contract when a justice of the peace has
jurisdiction wherein the amount claimed by the plaintiff in
his complaint duly verified shall exceed the sum of two hun-
dred dollars, but in such cases the plaintiff shall recover only
such taxable costs as the court in its discretion shall allow,
when the recovery shall be less than fifty dollars.'*
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310 SUPREME COURT OF WISCONSIN. [Oct.
Olson V. U. 8. Sugar Co. 140 Wis. 309.
This appellant concedes, but urges that because the legis-
lature in 1881, 'while said subd. 7 was in force, aiacted an
amendment to subd. 6 of said section allowing costs to the
plaintiff "in an action on contract when the plaintiff shall re-
cover $100 or more," this is a qualification of subd. 7. If a
qualification at all, it is a complete repeal ; for it covers the
whole ground, and subd. 7 serves no purpose. We are con-
vinced, however, that no such legislative purpose existed.
The statute aa it existed in 1881, when the addition to subd 6
was made, allowed costs to plaintiff: (subd. 3) In the ac-
tions in which a justice's court has no jurisdiction ; (subd. 6)
In an action on contract wherein real estate shall be attached
at the commencement thereof, without regard to the amount
recovered; and (subd. 7) In an action believed to be beyond
the jurisdiction of the justice of the peace, but on trial found
to fall within it Evidently the legislature became convinced
that another class of cases should be added to this, namely,
in all contract cases in which $100 or more should be re-
covered. This is the clear significance of the words, and such
we think to have been the legislative intenticm. There are no
words, by negation or otherwise, in the amendment to indi-
cate that it controls or restrains any of the other sections, and
when in 1898 the entire revision of the statutes was enacted
the dass provided by subd. 7 and the class brou^t into
subd. 6 by this amendm^it were both preserved in the statute.
The fact that the two subdivisions overlap is of no signif-
icance. That is the characteristic of several of the subdivi-
sicwas in sec. 2918, and it is no good ground for refusing costs
allowed by one of those subdivisions that they may under
some circumstances be allowed by the words of another. Thus
subd. 3 allows costs in actions of which a justice of the peace
has no jurisdiction. Subd. 4 allows costs in libel and slander
actions, amongst others. In case of a recovery beyond $50 it ,
matters not to which of these subdivisions the plaintiff's right
to costs is ascribed.
Appellant urges upon our notice two cases, decided since
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4
5] AUGUST TERM, 1909. 311
Piper V. Madison, 140 Wis. 311.
the amendment of 1881, in which, as he says, the supreme
court tested the right to costs by the new words of subd. 6
and did not mention snbd. 7. But an examination discloses
that neither of those oasea waa within the description of
subd. 7, and any right to oosta therein must have been meas-
ured by subd. 6. Thus, in Field v. Elroy, 99 Wis. 412, 75
N* W. 68, the complaint claimed $38.50 and the recovery waa
for $23.10, so that of course it oould not fall within the de-
8criptic«i of subd. 7. Again, in Monigomery v. Am. Cent^
Ins. Co. 108 Wis. 146, 84 N. W. 175, the recovery was some
$400, and therefore it was not an action on contract of which
a justice of the peace had jurisdiction, and ri^t to costs oould
not rest upon subd. 7, while it might rest on subd. 6, because
the recovery was more than $100, or mi^t have rested on
subd. 3, because the action was not within the jurisdiction of
the justice's eourt We find nothing in these cases to in any
wise prevent the applicability of subd. 7 to the preseoat ac-
tion.
By the Court — Judgmoit affirmed.
PipXB and othetrs. Appellants, vs. Citt or Uadison^ Be-
qpondent.
Beptember TJ — Ociol^er 5, 1909.
MunMpai oorporaiiom: Operation of watencorkM: lAabiUiv for negJU
gence of employees.
t. In selling and distributing water to its citizens by means of a
system of waterworks a city is acting not in its governmental
but in its private or proprietary capacity, and is liable in dam-
ages for negligence of its agents and servant? in the conduct of
such business.
t. The fact that the city may also use the waterworks for protection
against fire does not relieve it from liability for negligent acts
of its servants or agents in the conduct of the business, except
for such acts as are performed by them In the actual work inci-
dent to extinguishing fires.
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312 SUPEEME COURT OF WISCONSIN". [Oct.
Piper ▼. Madison, 140 Wis. 311.
Appeal from a judgment of the circuit court for Dane
county: E, Hay Stevens, Circuit Judge. Reversed.
The city of Madison, being authorized to maintain and op-
erate a system of waterworks, built its system in 1885.
About 1890 a water tower was constructed on Washington
avenue. It is claimed that this tower was chiefly constructed
to equalize the pressure. As originally planned, the connec-
tion between the pipes of the waterworks system and the tank
in the water tower was controlled by a valve located inside
the base of the tower. In time the dampness and the drip-
ping water rusted the bearings and it became impossible to
operate the valve. Attempts to remedy the matter were un-
successful, and in 1891, upon the advice of an expert hy-
draulic engineer, the valve at the base of the tower was dis-
continued and a new valve to control the water supply to the
tank in the tower was placed at the junction of the supply
pipe for the tank and the main pipe line at the jimction of
Pinckney street and Washington avenue about a block from
the tower. Plaintiffs conducted a grocery on Washington
avenue in a building located between the valve at the junc-
tion of Washington avenue and Pinckney street and the water
tower, and stored part of their stock of groceries in the base-
ment of this building. About 7 :30 in the morning of Janu-
ary 17, 1907, plaintiffs observed that water was flowing into
the basement^ presumably from a broken water pipe. The
officials of the waterworks department were notified^ and as
rapidly as possible employees cut off the supply of water from
the pipes in that section of the city. The valve at the junc-
tion of Pinckney street and Washington avenue, controlling
the supply of water to the tank in the water tower, was also
closed. This work took more than two hours and did not stop
the flow of water into plaintiffs' basement. A small drain
pipe from the tower tank was tben opened and with the dis-
appearance of the water from the tank the flow of water into
plaintiffs' basement ceased. Considerable damage was done
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5] AUGUST TERM, 1909, 313
Piper V. Madison, 140 Wis. 311.
to plaintiffs' stock of groceries by the water and they bring
this action to recover for the damage suffered. Subsequent
investigation showed that the ten-inch pipe supplying the
tank in the water tower had broken. On the trial in the cir-
cuit court of the action for the recovery of the damages suf-
fered, the jury were instructed as to the law of negligence,
and were informed that if city authorities in charge of the
water department acted upon the advice of men skilled in the
work in question, and if the city oflScials in good faith and in
reliance upon the advice of such experts in waterworks con-
struction had constructed a waterworks system according to
their best judgment, then defects in the construction became
mere errors in judgment and the city would be relieved from
liability for any damages resulting therefrom. Under the
instructions of the court the jury found that the defendant
was not guilty of any want of ordinary care in failing to keep
the valve in the base of the water tower in such condition that
it could be used to shut off the water from the tower. The
jury also found the amoimt of the damages sustained by the
plaintiffa The court awarded judgment in favor of the de-
fendant for its costs. This is an appeal from such judgment.
For the appellants there were briefs by Oilhert, Jackson <Sc
Ela, and oral argument by Emerson Ela.
For the respondent there was a brief by John A. Ayhoard,
city attorney, and Aylward, Davies & Olbrich, of counsel^
and oral argument by J. E. Davies.
SiEBECKEE, J. Under legislative authority the city has
voluntarily constructed a system of waterworks for public and
private use. The revenue derived from sales of water for pri-
vate use is applied to the cost of construction, operation, and
maintenance of the waterworks. The business is in charge
of a board of commissioners, who employ a superintendent
and such other agents and servants as are required for the
conduct of this part of the municipal business. The plaint-
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314 SUPEEME COURT OF WISCONSIN. [Oct.
Piper V. Madison, 140 Wis. 311.
iflFs bring this action to recover damages to their property
which they allege were caused by the negligence of the city
through its agents and servants employed by the city in con-
ducting the business of the waterworks department Under
the alleged facts the employees in charge of this municipal
department represent the city and act for it The errors as-
signed involve an inquiry as to the extent to which the city
is responsible for the acts of its agents and servants in the
conduct of this municipal enterprise.
In his treatise <m the Law of Municipal Corporations Mr.
Dillon states :
"Mimicipal corporations . • . possess a double charac-
ter : the one governmental, legislative, or public; the other, in
a sense, proprietary or private. . . . In its governmental or
public character the corporation is made, by the state, one of
its instruments, or the local depositary of certain limited and
prescribed political powers, to be exercised for the public good
on behalf of the state rather than for itself. . . . But in its
proprietary or private character the theory is that the powers
are supposed not to be conferred, primarily or chiefly, from
considerations connected with the government of the state at
large, but for the private advantage of the compact com-
munity which is incorporated as a distinct legal personality
or corporate individual; and as to such powers, and to prop-
erty acquired thereunder, and contracts made with reference
thereto, the corporation is to be regarded quroad hoc as a pri-
vate corporation, or at least not public in the sense that the
power of the legislature over it or the rights represented by
it is omnipotent" 1 Dill. Mun. Corp. § 66 (39). Hayes v.
Oshkosh, 33 Wis. 314; MtUcaims v. Janesville, 67 Wis. 24,
29 N. W. 665; Folk v. Milwaukee, 108 Wis. 359, 84 N. W.
420.
The function of a city in selling and distributing water to
its citizens is of a private nature, voluntarily assumed by it
for the advantage of the people of the city. Besponsibility
for the acts of persons representing it in such a business falls
upon the city through the relation of master and servant, and
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5] AUGUST TERM, 1909. 315^
Piper T. Madi8<m, 140 Wis. 311.
the maxim of respondeat superior applies. Whenever this re-
lation is established the city is liable in damages for the neg-
ligence of its agents and servants in the conduct of such busi-
ness. The following adjudications uphold this liability upon
the ground that the city in conducting such a business is act-
ing in its proprietary capacity: Lynch v. Springfield, 174
Mass. 430, 54 N. E. 871; Eouriffan v. Norwich, 77 Conn.
358, 59 Atl. 487; Chicago v. Selz, Schwab & Co. 202 111.
545, 67 N. E 386; Bullmaster v. St. Joseph, 70 Mo. App.
60 ; Philadelphia v. Oilmartin, 71 Pa. St 140.
The fact that the city may also use the waterworks for pro-
tection against fire does not relieve it from liability for neg-
ligent acts of its servants or agents in the conduct of this
business, except for such acts as are performed by them in the
actual work incident to extinguishing fires. Chicago v. Selz,
SchwaJb & Co., supra.
In submitting this case to the jury the court held that in
conducting the business of distributing and selling water the
city is exercising a public function, and its officers and agents
in ccmducting the business are in the exercise of guo^i-judicial
authority, ajud if they exercise their judgment and discretion
in good faith the city is not liable for damages resulting from
their negligent acts. This was error, because the city in this
case was acting in its private or proprietary capacity, and it
is therefore liable for the negligent acts of its servants or
agents. A new trial must be awarded.
By the Court. — Judgment reversed, and the cause re-
manded to the trial court for a new triaL
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316 SUPREME COURT OF WISCONSIN. [Oct.
Sweuson ▼. Wells, 140 Wis. 316.
SwEwsoN, Appellant, vs. Wells, Respondent
Bepiemher 17 — October 5, 1909,
Replevin: Plaintiff not the iole otoner: Abatement: Bringing in par-
ties.
1. Where In an action of replevin it appeared from the pleadings
and from the verdict on an issue in abatement that a third per-
son was jointly interested with plaintiff in a written contract
under which the property in question was claimed by defendant
to have been delivered to him in part payment for land, the court
should not have ordered the action abated, but under sec 2610.
Stats. (1898), should have stayed the proceedings and ordered
such third person brought in as a necessary party plaintiff.
2. Ordinarily sole ownership in the plaintiff is not essential to the
maintenance of replevin against a stranger who has neither
title nor right to possession, it being sufficient in such a case
that plaintiff has an interest and is entitled to possession.
Appeal from a judgment of the circuit court for Dane
county: E. Hay Stevens, Circuit Judge. Reversed.
This is an action of replevin brought to recover possession
of an automobile. The complaint alleges that the appellant
was the owner and entitled to possession of it; that it was of
the value of $1,500; that defendant in July, 1908, pretended
and claimed that plaintiff traded said car for sixteen lots in
Lone Kock, Wisconsin; that defendant fraudulently misrep-
resented the value of said lots; that defendant deeded said
lots to one W. G. Walker; that plaintiff agreed to trade the
automobile for lots, if after examination said lots were found
to be as represented ; that said lots were found not as repre-
sented; and that defendant took the automobile wrongfully
and unlawfully from plaintiff. The complaint prays for the
return of said property, or $1,500, its value, together with
damages.
The answer purports to set up two defenses : First, one in
abatement as f ollow-s :
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5] AUGUST TEEM, 1909. 817
Swenson v. Wells, 140 Wis. 316.
"(1) For a first defense the defendant alleges that the con-
tract mentioned in the plaintiff's complaint was in writing
and that a copy thereof is hereto attached and made part of
this defense ; that the said contract was made by the plaintiff,
Albert P. Swenson, and one W. G. Walker, jointly, by and
through one S. D. Burke, their duly authorized agent; that
the said W. G. Walker is still living at Madison, in Dane
county, Wisconsin."
Second. An answer in bar, attached to which answer or
second defense was a copy of an agreement purporting ta
have been made between the defendant and W. G. Walker and
plaintiff. This contract set up an agreement between the de-
fendant, party of the first part, and plaintiff and W. G.
Walker, parties of the second part, which provided for the
sale by the parties of the second part to the party of the first
part of the automobile and the payment of $500 in cash in
consideration of said lots referred to in the complaint. The
contract contained other provisions ordinarily found in land
contracts and not necessary to be stated here.
The court sent the case to the jury on the answer in abate-
ment upon the issue as to whether or not the plaintiff was the
sole owner, and the following question was submitted : "On
July 14, 1908, was the plaintiff the sole owner of the auto-
mobile in question?" Which question the jury answered
"No." Upon this finding the court ordered the action abated
and judgment was entered accordingly, from which this ap-
peal was taken.
F. K. Shuttleworth, for the appellant
For the respondent there was a brief by Thomas W. King,
attorney, and Grotophorsi, Evans & Thomas, of counsel, and
oral argument hy E. A. Evans.
Keewin, J. Considerable argument is made in this case
respecting the question as to whether or not the answer in
abatement was suflScient and whether it was not waived by
the answer in bar. We shall spend no time on this point,
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318 SUPREME COURT OF WISCONSIN. [Oct.
Swenaon v. Wells, 140 Wis. 316.
because we think it dear, under the provisions of sec. 2610,
Stats. (1898), that the court should not have ordered the ac-
tion abated, even conceding, for the purpose of the argument,
that the answer in abatement was suffici^it and the issue prop-
erly found in favor of the defendant Sec 2610 provides,
in effect, that when a compl^B determination of the contro-
versy cannot be had without the presence of other parties, or
any persons not parties to the action have such interests
in the subject matter as require them to be parties for their
protection, the oourt shall order them to be brought in. We
think the provisions of this statute made it the duty of the
<!Ourt, upon the determination of the issue in abatement
against the plaintiff, to stay proceedings in the action and
order the necessary party plaintiff brought in, and not order
the action abated. Sec. 2610, Stats. (1898) ; Shove v. Shove,
69 Wis. 425, 34 N. W. 392 ; Carney v. Ohissner, 62 Wis.
493, 497, 22 N. W. 735; Emerson v. Schwindt, 108 Wis.
167, 173, 84 N. W. 186; McDougald v. New Richmond B.
M. Co. 125 Wis. 121, 103 N. W. 244.
It may be well to observe, in passing, that ordinarily sole
ownership in a plaintiff suing in replevin is not essential to
the maintenance of the actioi^ because he may recover, though
not the sole owner, against a stranger who has neither title
nor right of possession, if he has an interest and is entitled to
possession. For example^ in certain cases a tenant in com-
mon may maintain an action in his own name to recover pps-
session of personal property from a stranger, in the absence
-of special circumstances going to show the necessity of any
other party plaintiff. But in the case before us we are of
the opinion that the court below rightly regarded the case as
a proper one requiring the presence of Walker as a party
plaintiff, upon the allegations in the pleadings and agreement
referred to in the answer in abatement The court is there-
fore of the opinion that the.court below was in error in order-
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5] AUGUST TERM, 1909. 319
Dralle v. Reedsburg, 140 Wis. 319.
ing the case abated; therefore the judgment must be re-
Tersed.
By the Court. — ^The judgm^it of the court below ia re-
versed, and the cause remiuided for further prooeedingB ao-
^cording to law.
SiBBBOKEB, J.| took no part
Dkalle, Bespondent, vb. Towir of Reedbbitbo, Appellant
Beptember 18 — October 5. 19if0,
^igliv)ayu: Defects: Personal injuries: Pleading: Varianoe: Nature of
injuries: Evidence: Opinions: Hypothetical questUms: Cross-
examination: Discretion: Instructions to jury: Damages for loss
of time: Married women: Costs.
1. In an action for injuries caused by defect in a highway the com-
plaint alleged that plaintiff received ''permanent injuries; waa
rendered sick, sore, bruised, maimed, and her life endangered,
and has sufTered and still does suffer severe and excruciating
pains." The complaint included the notice of injury served as
required by sec. 1339, Stats. (1898), and stated that it set forth
the injuries. This notice stated that plaintiff was thrown to
the ground, "causing severe bruises to my legs and shoulders,
and inflicting severe internal injuries." The claim for damages
required by sec 824, Stata. (1898), also made a part of the com-
plaint, was for 'Injuries, suffering, both mentally and phys-
ically." Held, that the complaint, notice, and claim should be
construed together as a pleading, and so construed the allega*
tions were sufficient to permit the admission of evidence of in<
juries to plaintifiTs side, back, and ribs, and also of an atrophy
or wasting of the muscles of the back, causing curvature of the
spine and having a tendency to increase.
-2. A defendant who neither demands a bUl of particulars nor moves
to make the complaint more definite and certain cannot, by ob-
jection at the trial, exclude evidence which is comprehended
within the broad generalities of the complaint.
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320 SUPREME COUET OF WISCONSIN. [Oct.
Dralle ▼. Reedsburg, 140 Wis. 319.
3. The notice required by sec. 1339, Stats. (1898). need not specify
the particulars in which the party is injured nor contain any
description of the injuries.
4. In an action for personal injuries, a question to an expert witp
ness as to how the injury affected the plaintiff was proper, the
word "injury" being used to designate the contusion, bruise, or
trauma in question, and not the invasion of legal rights which
might have occurred at the time of the accident.
5. An objection to a long hypothetical question on the ground that
it does not contain all the elements of fact testified to will be
considered on appeal only so far as it specifies the facts claimed
to be omitted.
6. In a hypothetical question as to whether the injury sustained by
plaintiff was a sufllcient producing cause of her physical condi-
tion as found by the witness, it was not necessary to include the
fact that plaintiff had given birth to seven children, all of whom
died in Infancy or shortly thereafter.
7. It was not error to exclude the opinion of a witness as to whether
it would have been possible or practicable for plaintiff to drive
over a part of the highway lying outside of the traveled track
at the place of the accident, in the absence of evidence that
plaintiff had an opportunity to leave the traveled track and had
such knowledge of the defect therein as would require a person
exercising ordinary care to leave the track and drive outside
thereof.
8. Where, from the questions asked, an attempt to extend a cross-
examination to matters not covered by the direct examination
could fairly be Inferred, it was not an abuse of discretion to^
limit the cross-examination rather strictly.
9. An instruction that, in determining whether or not the highway
was defective at the place in question, the Jury should consider
the amount of labor and money which must be expended to ob-
viate the alleged defect, and whether such expense would be so-
excessive as to render the change impossible or impracticable, is
held (whether correct in law or not) to have been properly re-
fused as inapplicable to the facts in this case.
10. Refusal to Instruct the Jury that plaintiff was not entitled to re-
cover for loss of her time was not error in this case. In view of
other instructions given and of the fact that no claim for such
recovery was made and no evidence offered on the subject
[11. Whether, under sec. 1339, Stats. (1898), as amended by ch. 305,
Laws of 1899, providing that a husband shall have no right of
action on account of injuries received by his wife by reason of
a defect in a highway, a wife mar recover damages for loss of:
her time, not determined.]
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5] AUGUST TERM, 1909. 821
Dralle y. Reedsbarg, 140 Wis. 319.
12. Costs taxable for drawing a bill of exceptions should not be held
to include that part thereof composed of a transcript of the re-
porter's notes, drawn by the reporter, for the cost of which the
successful party has already been fully reimbursed by the other
party.
13. Although the costs taxed for drawing a bill of exceptions may in
this case have included something more than the improperly al-
lowed costs of the reporter's transcript, this court will not count
folios to determine that fact, counsel having furnished no sep-
aration or basis for separation of the items.
Appeal from a judgment of the circuit court for Sauk
county: E. Ray Stevens, Circuit Judge. Modified wad af-
firmed.
Daniel H. Grady, for the appellant
For the respondents there was a brief by Orotophorst,
Evans & Thomas, and oral argument by E. A. Evans.
Timlin, J. In this action for damages resulting from a
defective highway the respondent pleaded that she ^'was
throvni violently from the said wagon and struck on the rocks
hereinbefore referred to, receiving therefrom severe and, as
she is informed and verily believes, permanent injuries ; • • •
was rendered sick, sore, bruised, maimed, and her life en-
dangered, and she has suffered, and still does suffer, severe
and excruciating pains. '^ Attached to the complaint and
made part thereof is a copy of the notice served by respondent
upon the town and required by sec. 1339, Stats. (1898), in
which, after describing the place where the accident hap-
pened and the nature of the defect, she says :
"Thereby throwing me out of the wagon and causing me to
fall with great force upon the ground, causing severe bruises
to my leg» and shoulders, and inflicting severe internal in-
juries.*'
Also made part of the complaint is the claim for damages
filed before the town board of audit as required by law, in
which she states that she makes a claim for injuries result-
Vol.140— 21
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322 SUPREME COURT OF WISCONSIN. [Oct.
Dralle v. Beedsburg, 140 Wis. 319.
ing from a defective highway concerning which she had given
a written personal notice. She further states:
"I claim damages against the town of Reedsbvrg for in-
juries, suffering, both mentally and physically, loss of earn-
ing capacity, both past and future, loss of time, etc, expense
incurred and to be incurred for doctoring," etc
As a witness on the trial the plaintiff offered her testimony
to the effect that by the fall in question she sustained injuries
to her side, ribs, and back, to which defendant objected in so
far as it pertained to any injuries other than those expressly
mentioned in the notice of injury and the claim filed with the
town board, namely, an injury to the leg and shoulder and
internal injuries. This objection was overruled. She of-
fered the testimony of her attending physician, who. testified
to an atrophy or wasting of the muscles of the back, causing
curvature of the spine and having a tendency to increase.
A similar objection to the admission of this testimony was
made and overruled. Mauch v. Hartford, 112 Wis. 40, 87
N". W. 816; Schmidt v. PfeU, 24 Wis. 452; Delie v. C. &
N. W. R. Co. 61 Wis. 400, 8 N. W. 265; and a number of
cases from other courts, are cited to show error in this ruling.
Sec. 1339, Stats. (1898), which imposes this liability upon
the town, requires as a condition precedent the service upon
one of the town supervisors of a notice stating the place where
such damage occurred and describing generally the insuflB-
ciency or want of repair which occasioned it and that satis-
faction therefor is claimed of such town. The statute does
not require that this notice specify the particulars in which
plaintiff was injured nor that any description of her injuries
be -given therein.
From the excerpts quoted it will be seen that the aver-
ments of the complaint in this respect were very broad and
general, and, although the complaint incorporated therein this
notice and further stated that the notice set forth the injuries
of the respondent, the notice itself in this respect is very
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6] AUGUST TEEM, 1909. 323
Dralle t. Rcedsburg, 140 Wis. 319.
broad and general. It speaks of braises to her legs and shoul-
ders and severe internal injuries, and the claim filed with
the board of audit refers to this notice and claims damages
for injuries and suffering, both mental and physicaL These
three papers presented together as a pleading must be con-
strued together, and neither can be tested by any other rule
than that relative to the suflBciency of pleadings. Under
that rule there was sufficient in the complaint notwithstand-
ing the exhibits attached to and incorporated therein to per-
mit the admission of this evidence. Curran v. A. H. Stange
Co. 98 Wis. 598, 74 K W. 377; Delie v. C. & N. W. R. Co.
51 Wis. 400, 8 N. W. 263. The complaint was doubtless
subject to a motion to make definite and certain in this par-
ticular or the defendant could have demanded a bill of par-
ticulars, but, having waived these remedies, it could not> by
objection at the trial, exclude this evidence which is compre-
hended within the broad generalities of the complaint
One of the expert witnesses was asked how the injury af-
fected respondent, and this question was allowed to be an-
swered against objection by the appellant From an exami-
nation of the testimony preceding the question we are inclined
to agree with counsel for respondent that the word "injury*'
was then being used to designate the contusion, bruise, or
trauma in question, and not the invasion of legal rights which
might have occurred at the time of the accident So constru-
ing this word there was no error in the ruling. The objection
to a long hypothetical question on the ground that it did not
include all the elements of facts testified to in the case and
upon other grounds not necessary to mention was followed
by a question from the court to counsel making the objec-
tion, asking counsel what facts he referred to which were not
in the hypothetical question. Counsel referred to the fact of
the existence of a scrofulous goiter for twelve years, but the
question expressly assumed that respondent had been afflicted
with goiter for a number of years and that it had increased
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324 SUPEEME COUET OF WISCONSIN. [Oct.
Dralle ?. Beedsburg, 140 Wis. 319.
some from the time of the injury. Counsel also mentioned
the fact that plaintiff had given birth to seven children, aU
of whom died in infancy or shortly thereafter. This fact
was not necessary to be included. The objection made was
insufficient to raise any other question not already consid-
ered. And the same is true of the objection to the hypothet-
ical question propounded to Dr. Edwards. Odegard v. North
Wis. L. Co. 130 Wis. 659, 677, 110 N. W. 809; ComeU v.
State, 104 Wis. 527, 80 N. W. 745.
Evidence that there existed a space to the right of the trav-
eled track in the highway in question twelve feet in width and
a little higher than the traveled track was admitted, but the
court excluded evidence of a witness who was asked to state
whether this was such a piece of highway as would permit its
use for the driving of a vehicle outside and to the right of the
traveled track ; also whether it was possible or practicable to
drive over this strip of twelve feet at the place where plaintiff"
was injured.
We do not think that any prejudicial error can be predi-
cated upon this ruling. If the jury had before it the condi-
tion and measurements of the traveled track and the oppor-
timities to turn out and avoid the rock in question, they would
not be aided much further by the opinion of the witness upon
the question asked, even if we concede that such opinions were
competent. The item of evidence is quite remote, and, un-
less coupled with proof that the plaintiff had opportunity to
turn out of the traveled track and such knowledge of the de-
fects in the traveled track as would require a person in the
exercise of ordinary care to depart therefrom and travel on
this strip, the opinions of a witness as to the practicability or
feasibility of so doing would be quite immaterial.
A physician called by the respondent testified that he ex-
amined the respondent shortly after the injury and found no
atrophy of the muscles of the back or curvature of the spine.
The court limited the cross-examination of this witness rather
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5] AUGUST TERM, 1909. 325
Dralle v. Reedsbaix, 140 Wis. 319.
strictly, but the questions asked were very broad, and were
no doubt understood by the court to attempt to extend the
cross-examination to other matters not covered by the direct
examination. Whether this was intended or not the court
evidently so understood, and this inference could fairly be
made from the questions asked. There was no abuse of dis-
cretion in this ruling.
Error is assigned because the court refused the request of
the defendant that the jury be instructed as follows :
'TTou are further instructed that, in determining whether
or not the highway at the place in question was defective, you
are to take into consideration the amount of labor and money
which must necessarily be expended to obviate the condition
wherein the alleged defect consists, and whether or not the
same would be so excessive as to render impossible or im-
practicable a change of such condition."
Whether or not this was correct in law we need not deter-
mine, because there was no evidence in the case to which such
instruction was applicable. And it is in itself inconsistent
with the theory of the defense that there was a strip twelve
feet in width to the right of the traveled track upon which
the plaintiff might safely have driven. The road in ques-
tion is over a hill called Buckley's Hill, and is about nine
feet wide between the raised sides. The wagon track is about
six feet wide. On the right hand the bank ran up four, six,
or eight feet high, and on the left hand there was a bank six-
teen inches to two feet high extending up and then an abrupt
drop. A rock extended across the wagon track diagonally.
The right wheel of the wagon would strike the rock first, and
from the bottom of the rut to the top of the rock was about
eight to twelve inches. To the right of the traveled track the
rock projected above the sand from four to six inches and
about as much on the left. This shows no situation calling
for such an instruction.
The court also refused the request of the defendant that
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326 SUPREME COURT OF WISCONSIN. [Oct.
Dralle y. Beedsbui^, 140 Wis. 319.
the jury be instructed that plaintiff was not entitled to re-
cover for loss of time. There was no evidence offered on this
subject, and, so far as the record shows, no claim made that
she was entitled to recover for any such item of damages.
The court did instruct the jury with reference to the fourth
question of the special verdict, the form of which was : "What
sum of money will compensate the plaintiff for the injury she
has received ? ^' In such instructions he told the jury to keep
in mind the condition of the plaintiff's health before and after
the injury, the nature and extent of the injuries as disclosed
by the evidence, and to include compensation for the actual
injury to the plaintiff's person, and for the physical and men-
tal pain and suffering undergone by reason of the injury, and
not to allow any sum for expenses incurred in the care or
medical attention of the plaintiff, and also with reference to-
future impairment of health.
The law as it now exists with reference »to the liability of
towns — ^that is, sec. 1339, Stats. (1898), as amended by
ch. 305, Laws of 1899 — cuts off all right of action on the part
of the husband on account of injuries received by the wife,
and renders tihe reason given for the exclusion of such dam-
ages in Boding v. MUvmvJcee E, R. dc L. Go. 105 Wis. 480, 81
N. W. 861, no longer appropriate. Cutting off a husband's-
right to recover such damages does not necessarily confer upon
a wife the right to recover; consequently this question is left
for future consideration, and, there being no claim for dam-
ages before the jury and no evidence to warrant such recov-
ery, the refusal of the requested instruction was not error. We
cannot say upon the evidence that the damages awarded by
the jury are excessive within the rules governing the consid-
eration of such questions.
In the taxation of costs the respondent was permitted to-
tax an item for drafting the bill of exceptions used by her
upon the first appeal in this case, reported at 130 Wis. 347,
110 N. W. 210. On the reversal of that judgment the re-
spondent presented as an item of disbursements the whole
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5] AUGUST TERM, 1909. 327
Johnson y. Eimerman, 140 Wis. 327.
bill of the court reporter for the original and copies of the
transcript which constituted the major part of the bill of ex-
ceptions, and this expense was paid by the appellant. The
clerk allowed the respondent to tax for drawing that part of
the bill of exceptions so made up. Proper exception was
taken to the ruling of the clerk, the matter brought for re-
view before the circuit court, who by order allowed this item
of costs to the respondent, and the evidence and exceptions on
the taxation of costs are preserved in the bill of exceptions.
The statute (sec. 2921) provides for the taxation of costs for
drawing bills of exceptions, but this cannot be held to cover
a bill of exceptions or that part thereof composed of a tran-
script of the reporter's notes drafted by the reporter for the
cost of which the respondent had theretofore been fully reim-
bursed by the appellant The amount of this item, as stated
in the printed case, is $146. This may include something
more than the reporter's transcript, but counsel for respond-
ent has furnished us no separation, or basis for separation
except by counting folios, which we decline to do.
For this error in taxation of costs the judgment of the cir-
cuit court must be modified by striking therefrom the item of
$146 above mentioned, and, as so modified, affirmed, the costs
of this court to be taxed against the resoondent
By the Court. — ^It is so ordered.
Shbpaed Dbaiitaob Distbict: Jonifsoif and others, Com-
missioners, Appellants^ vs. Eimebman, Bespondent
Beptemher 18 — Octoher 6, 1909^
NaiHgahJe waters: Rights of the puhUc: ArtiftciaJ conditions ioT^en
become natural: Destruction in drainage proceedings.
L EMdence, stated In the opinion, held sufl9cient to sustain the find-
ing of the trial court that a pond, created In a nonnavlgable
creek by the flowage from a dam across such creek. Is In fact
navigable.
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33a SUPEEME COURT OF WISC0NSI:N^. [Oct.
Johnsoa v. Eimennan, 140 Wis. 327,
2. The rights of the public in a small body of water, navigable in
fact and constituting a public highway, are as much entitled to
protection as they would be in a more pretentious watercourse.
3. An artificial condition of narigaUlity of a pood originally created
by a dam, becomes, by continuance for twenty years, a natural
condition.
4. Sec. 1379 — 28. Stats. (Laws of 1907, ch. 646), authorizing drain-
age commissioners to condemn 'Riparian rights, rights of flow-
age and water power/' does not authorize the destruction of
bodies of water navigable in fact.
Appeai. from an order of the circuit court for Dane
county: E. Ray Stevens, Circuit Judge. Affirmed.
The appeal is from an order refusing to confirm the pre-
liminary report of certain drainage conmiissioners thereto-
fore appointed. The commissioners reported in favor of the
creation of a drainage district in the towns of York and Me-
dina in Dane coimty, Wisconsin. The drainage system rec-
ommended by the commissioners contemplated the removal
of a dam known as Marshall dam and the destruction of a
pond created thereby known as Marshall pond. The circuit
court held that the pond created by the flowage of the dam
constituted navigable waters of the state and that such waters
could not be destroyed under the drainage acts. The com-
missioners appeal from such order.
For the appellants there was a brief by Termey, Hall &
Tenney, attorneys, and a supplemental brief by Whitehead &
Matheson and Kearney, Thompson & Myers, of counsel, and
oral argument by F. W, Hall and T, M. Kearney.
Elmore T. Elver, for the respondent.
Barnes, J. The trial court held that Waterloo creek is
not in fact navigable, but that the pond therein created by the
flowage from the dam sought to be condemned is navigable,
and that its navigability could not be destroyed imder the
powers granted or rights conferred by ch. 419, Laws of 1905,
as amended by ch. 646, Laws of 1907. The evidence tended
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5] AUGUST TERM, 1909. 829
Johnson v. Eimerman, 140 Wis. 327.
to show that the milldam in question was built nearly sixt^
jears ago and has been maintained ever since ; that the pond
was about a mile and a half long, and varied in width from a
few feet at the upper end to 200 or 300 feet at the lower end,
and had a depth of eight feet at the dam^ which gradually
lessened until it did not exceed two or three feet at its upper
end ; that such pond covered about 150 acres ; that it was navi-
gated by rowboats ; that it was used as a reserve for fire pro-
tection for the village of Marshall; that it furnished the
source of supply of ice for said village and the neighborhood
adjacent thereto; that it was resorted to for fishing, and that
farmers in its immediate vicinity might transport their grists
to the grist mill over the same if they saw fit (although no
evidence was offered to show that they had done so or were
ever likely to do so) ; and that it was used by the public for
the purposes enumerated.
Slight as is the showing of navigability in this case, still
we think it is suflBcient to sustain the finding of the trial
court that this pond is in fact navigable and is water in which
the public has acquired rights, under the repeated decisions of
this court. Indeed, counsel for the appellant did not assort
otherwise on the oral argument The following cases, among
others which might be cited, define what constitutes the test
of navigability in a stream or body of inland waters : Whisler
V. Wilkinson, 22 Wis. 572 ; Sellers v. Union L. Co. 39 Wis.
525 ; Olson v. Merrill 42 Wis. 203 ; A. C. Conn Co. v. Little
Suamico L. Mfg. Co. 74 Wis. 652, 43 N. W. 660 ; Falls Mfg.
Co. V. Oconto River Imp. Co. 87 Wis. 134, 58 N. W. 257;
Willow River Club v. Wade, 100 Wis. 86, 76 N. W. 273;
In re Horicon D. Dist. 136 Wis. 227, 116 N. W. 12. It is
true that the body of water found to be navigable in this case
is small, but if it is navigable in fact and constitutes a pub-
lic highway the rights of the public therein are as sacred and
as much entitled to protection as they would be in the case
of a more pretentious watercourse.
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830 SUPREME COUET OF WISCONSIN [Oct.
Bowker v. Shields, 140 Wis. 330.
The decision of the circuit court holding that the millpond
in question is navigable being warranted by the facts shown
in evidence^ it seems to us that every claim and every con-
tention made by appellants is settled adversely to them by the
decision of this court in In re Horicon D. Dist, supra. The
artificial condition originally created by the dam became by
lapse of time a natural condition. In re Horicon D. Dist.,
supra; Diana Shooting Club v. Lamoreux, 114 Wis. 44, 89^
N". W. 880; Pewaukee v. Savoy, 103 Wis. 271, 79 N. W.
436; In re Dancy D. Dist. 129 Wis. 129, 108 N. W. 202;
Smith V. Youmans, 96 Wis. 103, 70 N. W. 1115 ; Mendota
Club V. Anderson, 101 Wis. 479, 78 N. W. 185. In the HoH-
con Drainage Case the court does not decide that the legis-
lature may not authorize the destruction of bodies of water
navigable in fact, but it does decide that the act we are con-
sidering did not authorize any such destruction, and it is at
least strongly intimated in some of the decided cases that
such an act could not be upheld. In re Dancy D. Dist.,
mpra; Priewe v. Wis. 8. L. £ I. Co. 93 Wis. 534, 67 K W.
918. It follows that the order of the circuit court was cor-
rect
By the Court. — Order affirmed.
Pbtition' of Eoss: Bowkeb and another, Appellants, vs.
Shields and others^ Kespondents,
Beptemher 18 — October 5, 1909^
Wills: Construction: Descent and distrihutiotk
1. If a parent leaves, by will, property to one of several children,
with no disposition over in the event of the termination of that
estate, and such child dies under age, not having been married,
such property, though testate as regards the parent, is intestate
as regards the child, and descends to the other children of the
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5] AUGUST TERM, 1909. 331
Bowker v. Shields, 140 Wis. 330.
testator, living at the death of the child, and to the issue of
such as are dead, by right of representation, under subd. 5,.
sec 2270, Stats. (1898).
2. A will giving to a person named "all the rest, residue, and re-
mainder" of an estate, subject to certain bequests, does not dis-
pose of a remainder over at the death of such person.
Appeal from a judgment of the circuit court for Dane-
county : E. Eay Stevens, Circuit Judge. Affirmed.
Proceedings for the construction of a wilL
Albert Bowker died testate. His will was duly admitted
to probate in the county court of Dane county, Wisconsin,
May 6, 1891. He died seised of certain real estate and owner
of certain personal property. After settlement of his estate
there was left in the hands of the executrix for distribution
$253.59. He willed all the residue of his estate, after pay-
ment of his debts and funeral expenses, to his son Albert Ir-
win Bowker, subject to some small bequests which have been
paid. The estate was dosed by a final order reciting that
the deceased left surviving him six children, named, who
were at the date of the order adults, and two children, Claudia
Oertrude, aged eleven, and Albert Irwin, aged five years at
such date, and his widow as his sole heirs, and decreeing as
follows: The testamentary trustee is entitled to the $253.59
to be applied on the legacy of $500 to Claudia upon her at-
taining the age of eighteen years and on one to a son, Ernest^
upon the son Albert Irwin arriving at the age of twenty-one
years, provided that, in case the death of Ernest precedes
Irwin attaining the age of twenty-one years, the former's
legacy shall revert to Irwin, all as in said will provided ; and
in case of the death of Claudia under the age of eighteen
years her l^acy shall belong to such heirs at such age, as she
would have had, had she reached that age, and the legacy to
Ernest shall be payable to him if living at the time Al-
bert^ Jr., if living, would reach the age of twenty-one years,
and if prior to such time Ernest shall die leaving issue of
his body living at such time, his legacy shall be paid at such.
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332 SUPREME COURT OF WISCONSIJf. [Oct.
Bowker v. Shields, 140 Wis. 330.
time to such issue, otherwise, in case of the death of Ernest
before such time leaving no issue, the legacy shall fall into
the residuum of the estate and go to Albert or his heirs.
Subject to the homestead and dower right of the widow and
payment of the legacies the estate was decreed to Albert as
residuary legatee as provided in the will.
After entry of the final order as aforesaid Albert Irwin
died imder the age of twenty-one years leaving as survivors
his mother, Mary, brothers and sisters and issue of deceased
brothers and sisters, children and grandchildren of Albert, Sr.
Marion Ross, being trustee of the proceeds of a sale of the
real estate for Albert Irwin and his mother, after the death of
the former petitioned the county court for an order directing
disposition thereof. Respondents, as heirs of Albert, Sr.,
claimed that the prc^rty which would belong to Albert
Irwin, if living, belonged to them under sec. 2270, Stats.
(189.8) ; should go to the living diildren of Albert, Sr., and
the issue of his deceased children by right of representation.
The county court so held and on appeal to the circuit court
the result was the same. Judgment was rendered accord-
For the appellants there waa a brief by Gilbert, Jackson
<& Ela, and oral argument by Emerson Ela.
For the respondents there was a brief by W. A. P. Morris,
and oral argument by M. 8. Dudgeon.
Marstiat.!., J. The question at issue on the appeal may
be concisely stated thus : If a person having children dies tes-
tate leaving property by testamentary gift to one of them
with no direction for disposition thereof in case of the ter-
mination of that estate by death or otherwise, and such child
dies in infancy, and so, necessarily, intestate, he not having
been married, does such property descend to the other chil-
dren of such person, living at the death of the first taker and
the children of such as are dead, by right of representation ?
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5] AUGUST TERM, 1909. 335
Bowker v. Shielda, 140 Wis. 330.
That> as held by the learned trial court, is unmistakably ruled
by subd. 6, sec. 2270, Stats. (1898), in these words:
"If any person shall die leaving several children or leav-
ing one child and the issue of one or more other children, and
any such surviving child shall die under age, not having been
married, all the estate that came to the deceased child by in-
heritance or by testamentary gift from such deceased parent
and all personal property which belongs to such deceased
child by reason of distribution xmder subd. 6 of sec. 3935
shall descend and be distributed in equal shares to the other
children of the same parent and to the issue of any such other
children who shall have died, by right of representation.''
The statute is so plain, that it would be a waste of words
to indulge in discussion for the purpose of elucidating its
meaning or pointing out its application to the facts of this
case, as simmiarized in the proposition stated.
Counsel for appellant suggest that the statute is a law of
descent, which does not apply here because the property in
question was disposed of by the will of Albert Bowkw. True,
the statute is one regulating descent and so applies wholly to
intestate property. But the property in question is clearly
within the statute, since, though it is testate property as re-
gards Albert Bowker, Sr., and came to Albert Irwin by testa-
mentary gift, it is intestate property of the latter. By the
terms of the law it includes property received by a child, sub-
sequentiy dying in infancy, by inheritance or testamentary
gift
Counsel is plainly in error in the claim that the remainder
over after the death of Albert Irwin was disposed of by the
will of his father. He did not even will the property, as sug-
gested, to Albert Irwin and his heirs. Had he done so the term
"heirs'' would be referable to the section under consideration.
The will gave direction to the title only till it should vest in
Albert Irwin, the words being: "I give and bequeath to my
son Albert Irwin all the rest, residue, and remainder of my
estate, both real and personal, subject," etc., specifying the
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534 SUPREME COURT OF WISCONSIN. [Oct.
Chicago, M. A St. P. R. Co. v. Fair Oaks, 140 Wis. 334,
legacies which have been paid as indicated in the statement
That left direction of the title in the circumstances which oc-
curred wholly as specified in the statute, as the circuit court
decided.
By the Court. — Judgment affirmed*
Chicago, Milwaukee & St. Paiji. Rail way Compant, Ap-
pellant, vs. Village of Faib Oaks, Respondent
Beptemher 18 — Octoher 5, 1909.
Railroads: Eighioay crossings: Maintenance: Planking: Condemna-
tion: Compensation: ConstitutionaJ law: Police potoer^
1. Under sec. 12997i — 1, Stats. (Laws of 1907, eh. 120), — requiring a
railway company at its own expense to construct, grade, and
maintain in safe condition for public travel the portion of any
highway extending upon or across its tracks or right of way in
any incorporated village, etc., — ^the company must by planking
or some equivalent therefor, adjust the surface of the highway
where it crosses the tracks substantially to a level with the
tops of the rails.
2. Where a portion of the right of way of a railway company is con-
demned for the purpose of extending a highway across the
tracks, the company is not entitled to be compensated for the
expense which it must Incur in constructing and maintaining
the crossing as required by the statute, such burden being im-
posed upon it solely for the protection of the public.
3. The requirement of sec. 12997i — ^1, Stats., is a legitimate exercise
of police power for the protection of the safety of the public.
Appeal from a judgment of the circuit court for Dane
coimty : E. Ray Stevens, Circuit Judge. Affirmed.
Condemnation proceeding for the extension of Jackson
street acroes the existing right of way and tracks of the ap-
pellant It was stipulated by the parties, and foimd by the
court, that the diminished value of appellant's land was $1
and that the cost of planking the crossing in perpetuity would
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5] AUGUST TERM, 1909. 335
Chicago, M. & St P. R. Co. v. Fair Oaka, 140 Wis. 834.
be $99. The court awarded as damages $1 and refused to
allow the $99, from which refusal the railroad company
hrings this appeal.
The cause was submitted for the appellant on the brief of
JSanbom & Blake, attorneys, and C. H. Vun Alstine, of coun-
sel, and for the respondent on that of M. B. Olbrich.
Dodge, J. The first contention made by appellant is that
the new statute, enacted by ch. 120, Laws of 1907, addpd as
sec. 1299A^ — 1, Stats., does not require it to plank the crossing
^f the new street. That act provides :
^'Whenever any highway in any town or incorporated vil-
lage, without the limits of any incorporated city, diall extend
upon, over or across the tracks or right of way of any railway
company, such raiMay company shall, at its own expense,
construct, grade and maintain in safe condition for public
travel, the portion of such highway or crossing extending
upon, over or across the tracks or right of way of such railway
<x)mpany.''
Does this include planking the surface between and ad-
joining the tracks? The affirmative was quite directly de-
<ilared in Chicago, M. & St. P. B. Co. v. Milwaukee, 97 Wis.
418, 431, 435, 72 N. W. 1118; and, while the question was
not necessarily involved in that case, the reasons there pre-
sented still appear to us cogent and conclusive. The portion
of the highway at the place of intersection with the tracks
cannot be so constructed and maintained as to be in "safe
condition for public travel" without such planking, or some
equivalent therefor, as to adjust the surface substantially to
a level with the tops of the rails. Of course this might be ac-
■complished by the use of cement or concrete, and perhaps in
some other way, but at expense probably as much or greater
than the planking, and we take the practical question here in-
volved to be whether planking or some equivalent is by the
statute imposed upon the company. Without it, the crossing
would be safe neither for the public travel upon the highway
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336 SUPREME COUET OF WISCONSIN. [Oct.
Chicago, M. ^e St P. R. Co. v. Fair Oaks, 140 Wis. 334.
nor for the uninterrupted passage of trains over it. The^
danger to the public results not only from the presence of
rails in the street, but from the probable presence of teams or
other obstructions upon the track so that accidents may occur
to trains or they may be obliged to stop. The public safety
is involved both in the travel on the street and in the travel
of the railroad. We think the words of the statute are clearly
broad enough to require such adjustment of the surface to-
the rails as is ordinarily accomplished by planking, and the
obvious purpose of the act is such as to arouse belief in that
intention.
2. A further contention of the appellant is that, if it is re-
quired by law to incur this expense as a consequence of the
condemnation of a portion of its right of way for use as a.
highway, such expense is an impairment of the value of its
property, and therefore should be compensated in the con-
demnation proceedings, a contention which, if the condemna-
tion were for another railroad, finds support in State ex rel.
Northern Pac. B. Co. v. Railroad Commission, ante, p. 145,
121 N. W. 919, decided so recently that the opinion was prob-
ably not brought to the attention of the circuit judge in the
instant case. In that opinion, however, the distinction is
clearly drawn between a condemnation of the lands of one
railroad for the use of another and a condemnation for the
uses of a public highway, with reference to those burdens of
expense and maintenance in compliance with police r^ula--
tions, resulting from the new use of that portion of plaintifPs^
right of way taken for the crossing. In the case of highway,
those burdens fall purely and solely for public protection. In
the case of condemnation for a new railroad, elements of pri-
vate profit result from the condemnation, although they are
not the sole reason for it, and therefore it has been held, as is
declared in Staie ex rel. Northern Pac. B. Co. v. Bailroad
Commission, supra, that those expenses, so far as they are
cast upon the plaintiff by the new crossing, should be compen-
sated by the condemnor, if another railroad company, while-
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5] AUGUST TERM, 1909. 337
Wolf V. Green Bay, 0., M. & 8. W. R. Co. 140 Wis. 337.
in the case of the public they should not^ because a mere
burden of expense resulting wholly from obedience to po-
lice regulations rendered necessary by the development and
growth of the community and application of governmental
policy. State ex rel. Minneapolis v. St. Paul, M. & M. R,
Co. 98 Minn. 380, 108 K W. 261; Chicago, M. & St. P. R.
Co. V. MilwaiJcee, supra.
3. Upon the question whether the requirement of sec.
1299/i — 1, Stats., is a legitimate exercise of police power jus-
tified by considerations of protection of the safety of the
public, Chicago, M. & St. P. R. Co. v. MilwavJcee, supra, is
final. As there well said : "There is no distinction in prin-
ciple between the planking of the crossing and the mainte-
nance of crossing signs, warning posts, cattle-guards, wing
fences^ crossing gates,*' and other things there mentioned.
The suggestion of a distinction because the planking or its
equivalent is really a part of the construction of the railroad
is an immaterial one. Obviously it is no more so than the
construction of cattle-guards required by sec, 1810, Stats.
(1898), and sustained as a police regulation in Chicago, M.
& St. P. R. Co. V. Milwaukee, supra, and cases there cited.
By the Court. — Judgment affirmed
WoLP and others, Eespondents, vs. Gkben Bay, Oshkosh,
Madison & Southwestern Railway Company, Ap-
pellant
Beptember 18 — October 5, 1909,
Courts: Presumption of regularity in proceedings: Appeal: Harmless
error: Railroads: Condemnation of land: Determining rights of
mortgagee: Damages: Evidence: Opinions: Qualification of toit-
nesses,
1. In a proceeding In a court of general jurisdiction, where no ques-
tion of want of Jurisdiction is raised, it will be presumed in the
absence of a contrary showing that the necessary steps were
Vol. 140—22-
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338 SUPREME COURT OF WISCONSIN. [Oct.
Wolf V. Green Bay, O., M. A a W. R. Co. 140 Wifl. 337.
taken for the entry of judgment, although not all such steps
necessary to regularity appear of record.
2. An alleged irregularity in condemnation proceedings, in that no
order appears of record directing the clerk to enter judgment,
will not, where no substantial rights of the s^pellant are af-
fected thereby, work a reversal of the judgment.
3. The fact that the rights of a mortgagee were not adjudicated in
condemnation proceedings is not good ground for disturbing the
judgment on appeal, where the parties had stipulated that the
mortgage claim should b« paid out of the amount recovered.
4. In proceedings to condemn a strip of land for a railroad the
proper inquiry with reference to damages recoverable for in-
jury to plainMff's adjoining lands, was whether such lands were
depreciated in market value by the taking of the strip for that
purpose; but it was not prejudicial error in this case to permit
witnesses to be asked what in their opinion was the amount of
damage caused by the railroad cutting through plaintifT's land,
it appearing that counsel, court, and jury all understood that
the word "damage" referred to depreciation in the market value
of the part of plaintifT's land not taken.
5. In condemnation proceedings witnesses who showed familiarity
with the value of lands and the probable injury to such lands
from division thereof by a railroad and its operation were quali-
fied to give opinion evidence on the subject.
Appeal from a judgment of the circuit court for Shawano
county : John Goodland, Circuit Judge. Affirmed,
This is a proceeding for acquiring a strip of land across the
farm of the respondents as a right of way for the appellant
railway company. Upon the appeal from the award of the
commissioners appointed to appraise the damages^ the jury
in the circuit court awarded the respondents $175 as the value
of the strip of land taken and $575 as the damages suffered
by the remainder of respondents* farm by the taking. The
commissioners had awarded $103.80 as the value of the strip
taken and $50 as the damages to the remainder of respond-
ents' land.
Upon the trial one of the witnesses had stated that it was a
damage to have the railroad passing through the farm, and he
was th«i aaked: "Q. In your opinion^ how much does that
damage amount to f ' Another witness was asked : "Q. What,
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o] AUGUST TERM, 1909. 339
Wolf V. Green Bay, O., M. & S. W. R. Co. 140 Wia 337.
in your opinion, is the amount of damage caused by the
Wisconsin & Northern cutting through this land ?" Other wit-
nesses were asked similar questions. Objection was made
to these questions on the ground that they were incompetent
and immaterial and not proper questions. No specific ground
for the objection was suggested to the court. Although excep-
tion was taken to the ruling of the court permitting these
questions, no attempt was made on cross-examination to have
the witnesses explain the grounds for their opinions or what
they included in their estimates of the damages to which they
had testified.
The court instructed the jury that the respondents were en-
titled to recover the value of the strip taken, and that the
depreciation in the market value caused to the remainder of
the respondents' farm by such taking and use constituted
damages which they were also entitled to recover.
After the costs were taxed the clerk of the court entered
judgment in favor of the respondents for the full amount
found by the jury. Reference is made in the judgment to the
fact that the strip taken is included in a mortgage on the lands
of the respondents and that the parties had stipulated for its
payment out of the damages recovered. No deduction was
made in the judgment entered of the amount which had been
awarded by the commissioners and which the appellant had
paid into court. Bespondents have filed a satisfaction for so
much of the judgment as was so paid into court This is an
appeal from the judgment.
For the appellant there was a brief by Wallrich, Dillett &
Larson, and oral argument hj A. S. Larson.
P. J. Winter, for the respondents.
SiBBECKBB, J, The objection to the entry of judgment be-
cause no order appears of record directing the clerk to enter
judgment cannot prevail. This is a proceeding in a court of
general jurisdiction and no question of want of jurisdiction
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340 SUPREME COURT OF WISCONSIN. [Oct.
Wolf V. Green Bay, 0., M. & S. W. R. Co. 140 Wis. 337.
is raised. Under such circumstances the rule is that, though
every step necessafy to regularity may not appear of record,
the presumption, in the absence of a contrary showing, is that
the necessary steps were taken for the entry of judgments
Falkner v. Guild, 10 Wis. 563 ; In re Marchant's Estate, 121
Wis. 526, 99 N. W. 320, It does not appear that the alleged
irregularity in any way affected the substantial rights of the
appellant He is therefore in no position to complain. Sec
2829, Stats. (1898).
Nor is the fact that the rights of the mortgagee in the land
taken were not adjudicated good ground for disturbing the
judgment on this appeal, for it appears that the parties by
stipulation agreed that the mortgage daim on the land should
be paid out of the amount recovered. If any action is re-
quired to protect appellant as to the payment of this incum-
brance, it can readily be secured upon application to the court
for a direction in the matter.
The objection to the opinion evidence of witnesses tes-
tifying to the damages caused to the respondents' land adjoin-
ing the strip taken is twofold in character. It is claimed
that the questions propoimded were improper and that the
witnesses were not qualified to give opinions on the subject
of inquiry. The appropriate and correct inquiry is whether
respondents' lands adjoining the strip taken were depreciated
in market value by the taking of the strip. The court in
submitting the issue to the jury informed them that the re-
spondents could recover no damages for injury to lands not
taken, unless it appeared that they were depreciated in market
value by the taking of the strip and its use for railroad pur-
poses. The questions propounded to the witnesses were gen-
eral in form and do not specifically embody this form of in-
quiry. It appears, however, from wliat took place at the
trial that the questions propounded comprehended this idea
and that counsel and witnesses understood that the word
"damage,'' as employed, referred to tlie depreciation in the
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5] AUGUST TEEM, 1909. 341
T. D. Kellogg L. & Mfg. Co. v. Webster Mfg. Co. 140 Wis. 341.
market value of that part of respondents' lands not taken.
This is confirmed by appellant's counsel's omission to make
any inquiry of the witnesses as to what was embraced in their
opinion on the subject His failure to pursue tiie matter was
evidently due to the fact that counsel, court, and jury under-
stood the witnesses were expressing their opinion of the de-
preciation in the market value of the lands not taken. We
<lo not find that the irregularity complained of operated to
the appellant's prejudice.
The witnesses' qualification to give opinion evidence on this
subject was sufliciently shown. They showed familiarity
with the value of lands and the probable injury to such lands
from division by a railroad and its operation. The grounds
of their opinions were sufliciently disclosed to the jury.
It is urged that the remarks of respondents' counsel to the
jury were prejudicial. We have examined them and find no
grounds for an inference that they in any way affected the
result on the triaL
There is no reversible error in the record.
By the Court. — Judgment aflGurmei
T, D. Kellogo Litmbeb & Manupaotueiwo CoMPAnpr, Ap-
pellant, vs. Webstek Manufactubing Company, Re-
spondent
September 18 — October 5, 1909»
(1-4) Evidence: Account hooks: Principal and agent: Admissions
of agent: Self-serving declarations: Assignor and assignee,
(5) Appeal: Exceptions. (6) Tax titles: When agent may pur-
chase principal's land.
1. Entries In account books are not, under sec. 4187, Stats. (1898),
admissible as evidence of any Item of money paid at one time
exceeding five dollars.
2. Unsworn statements or admissions of an agent are not evidence
in favor of the principal.
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342 SUPREME COURT OF WISCONSIN. [Oct.
T. D. Kellogg L. & Mfg. Co. t. Webefeer Mfg. Co. 140 Wia. 341.
3. In an action by a prant«e of land upon a covenant against in-
cumbrances to recover a sum paid In redemption of a tax cer-
tificate, declarations in a letter written by an agent of defend-
ant, found in its files, stating that another a«ent had bought
in the certificate in his own name and that defendant had made
a draft to make up the amount thereof, were mere self-serving
declarations and not admissible on behalf of defendant to show
that the certificate was taken by the agent for defendant and
that the transaction amounted to a payment of the taxes.
4. Admissions of the agent who took the tax certificate in hie owa
name, that he took it for defendant, are not admissible against
plaintiff under the doctrine that the admissions of an assignor,
made prior to the assignment, are admissible against the as-
signee. Platntift having redeemed from the tax sale and hav-
ing sued for breach of the covenant against IncumbranceB, is
not claiming as assignee of the agent.
5. Wliere findings necessary to support the judgment were sulfi-
ciently excepted to and are unsupported by competent evidence
the judgment will be reversed, and it is immaterial that the
exception to another finding was insufficient.
6. A person employed by a lumber company as superintendent and
in charge <ft its business in a county was not precluded by such
position from taking a certificate in his own name at a tax sale
of the company's land, where he was not charged with the duty
of paying the taxes nor furnished with money for that purpose.
Appeal from a judgment of the circuit court for Langlade
county: John Goodland, Circuit Judge. Reversed,
This action was brought to recover $521.61 paid Ifovember
19, 1904, in redemption of a tax certificate allied to be out-
standing against the real estate of plaintiff, purchased- from
the defendant through one T. D. Kellogg. The action was
based upon covenants against incumbrances, and it was al-
leged that tlie tax certificate was an outstanding inbumbrance
against plaintiff's property, and before action brought the
plaintiff paid die amount due on the certificate to the county
clerk of Langlade county and brought this action to recover
it from the defendant upon a warranty. The action was
tried by the court, and the court found that on the 22d day
of December, 1898, the defendant was the owner of the real
estate in question and conveyed the same by warranty deed
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5] AUGUST TERM, 1909. 343
T. D. Kellogg L. & Mfg. Co. t. Webster Mfg. Co. 140 Wis. 841.
to one Kellogg, who conveyed to the plaintiff, and that simul-
taneously with the delivery of aaid warranty deed the de-
fendant executed and delivered to Kellogg a writing whereby
it agreed to save KeUogg harmless from all tax certificates
outstanding against said real estate; that in May, 1897, said
lands were sold for taxes to one W. C. Weeks for the sum
of $245.13 and a certificate in the usual form issued to
said Weeks; that between 1892 and the date of the convey-
ance of the premises by defendant^ Weeks was in the employ
of defendant as superintendent and had charge of its business
in Langlade county; that A. J. Webster was president and
manager of defendant, and all transactions and communica-
tions between Weeks and the defendant were conducted
on behalf of defendant by said A, J. Webster, and that
said Webster died in 1908 ; that during the superintendency
of said Weeks the defendant kept a bank account in tlie
city of Antigo, Langlade county, and Weeks as superin-
tendent and agent of defendant drew checks against said bank
account and made drafts on the home office at Superior for
the benefit of the bank account at Antigo in the name of de-
fendant by Wedcs, superintendent; that in purchasing the tax
certificate Weeks acted as agent of defendant, and purchased
such certificate with the money of the defendant and held it
for its benefit; that in March, 1898, defendant brought an
action against Langlade county, Weeks, and others to set
aside the taxes for which said land was sold and for which
the certificate had issued to Weeks; that the action was
brought by an attorney employed cmdl bdialf of defendant by
Weeks, and that said Weeks on behalf of defendant controlled
said action and made all communications with the attorney
so employed ; that Langlade county in its answer averred that
said Weeks bought and held this certificate as the ag)Bnt of de-
fendant and that his purchase of it amounted to a payment
of the taxes ; that this action was never brought to trial and
has never been disposed of; that on February 16, 1903, said
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344 SUPREME COURT OF WISCONSIN. [Oct.
T. D. Kellogg L. & Mfg. Co. v. Webster Mfg. Co. 140 Wis. 841.
Weeks commenced an action against the plaintiff to foreclose
said tax certificate pursuant to sec 1181, Stats. (1898),
which action is denominated the "Weeks action;" that soon
after the Weeks action was begun and on February 18, 1903,
the plaintiff herein notified defendant in this action of the
commencement of said action, and that if it did not give the
matter immediate consideration it would be necessary for
plaintiff to protect its interest in the action and hold de-
fendant for all damages; liiat the Weeks action remained
pending in the Langlade county circuit court until the fall of
1904; that in September, 1904, the plaintiff demanded of
defendant that it redeem from the tax certificate in question,
so as to dear the title to the property and let the money re-
main in court in lieu of the certificate lien, and told de-
fendant that if this were not done plaintiff would redeem and
look to defendant for its damages ; that in reply to tiiis the
defendant offered to assume the defense of the action, but re-
fused to redeem from the certificate, and advised against
plaintiff doing so; that immediately after redemption by
plaintiff, upon stipulation between plaintiff and Weeks, the
Weeks action was discontinued; that at no time did the
plaintiff tender defendant the defense of the Weeks action.
And as conclusions of law that the purchase by Weeks of
the tax certificate constituted a payment of the taxes, and
that such certificate was no lien against the premises in ques-
tion, and that the redemption by plaintiff from the tax cer-
tificate raised no liability of defendant to plaintiff.
Judgment was entered accordingly that plaintiff take
nothing and that the defendant, Webster Manufactwring Com-
pany, recover from the plaintiff the costs. From the judg-
ment entered this appeal was taken.
For the appellant there was a brief by Fvnucane & Conway,
and oral argument by A. C. Conway.
H. V. Gard, for the respondent
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5] AUGUST TERM, 1909. 345
T. D. Kellogg L. & Mfg. Co. v. Webster Mfg. Co. 140 Wis. 341.
Keravin, J. The vital question for determination upon
this appeal is whether the tax certificate taken in the name of
Weeks was a valid lien upon the real estate conveyed to
plaintiflF. If so, then the plaintiff had a good cause of action
against the defendant This question turns upon whether the
proof establishes that the certificate was taken by Weeks for
the defendant and therefore amounted to a payment of the
taxes> and whether the relation of Weeks to the defendant in
the matter was such as to prevent him from taking the certifi-
cate and thereby making it a lien upon the premises. These
questions involve an examination of the evidence as to
whether or not it sustains the findings. Much labor has been
imposed upon the court on account of the indefinite and un-
satisfactory condition of the evidenca We have bestowed
much labor upon the record with a view of discovering, if pos-
sible, sufficient competent evidence to support the findings in
view of the well-settled doctrine of this court that, unless the
clear preponderance of the evidence is against the findings,
they cannot be disturbed. We have in the first place the
prima facie case made in favor of Weeks's title by the certifi-
cate, regular upon its face, in addition to the positive evidence
of Weeks that he was the absolute owner of the certificate,
corroborated by Gertrude Weeks, bookkeeper. To meet this
evidence the defendant attempted to make a case by state-
ments in books of defendant kept by Weeks and his wife
while in the employ of defendant, and letters and declarations
written and made by agents of defendant The defendant
put in evidence, under objection, certain entries on the cash
book and ledger of the defendant company, which it was
claimed tended to show payment by the defendant of an
amount on a tax certificate corresponding to the amount of
the tax certificate in question; also a letter in the hand-
writing of Gertrude Weeks, and found in the files of defend-
ant's office, referring to the fact that the land had been sold
for taxes and that Wed^ had bought in the certificate in his
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346 SUPREME COURT OF WISCONSIN. [Oct.
T. D. Kellogg L. A Mfg. Co. v. Webster Mfg. Co. 140 Wis. 341.
own name in order to save interest, and stating the amount
paid for the certificate, which corresponds in amount with the
certificate in question, and that the defendant had made draft
for $200 to make up the amount of the certificate, $245.13.
The draft also was found in the files of defendant's ofiice, and
is in evidence under objection. But the difficulty with this
evidence is that it was incompetent The entries in the books
were not competent because no sufficient foundation was laid
for their admission nnder the provisions of sees. 4186, 4187,
Stats. (1898), and they were not, even if regularly in evi-
dence, proof of payment of the item $245.13, being an item
exceeding $5. Sec 4187, Stats. (1898) ; Winner v. Bauman^
28 Wis. 563 ; Brovm v. Warner, 116 Wis. 358, 93 N. W. 17-
The letters and entries could only be admissible, if at all, a»
declarations of the agents of defendant, and upon this ground
defendant's counsel claims they were competent, particularly
the letter written by Gertrude Weeks, heretofore referred to,
respecting the payment of the $245.18 on the tax certificate.
No attempt was made to prove the facts, but the letter and
other declarations of the agents of defendant were offered as
evidence of payment. Such evidence was merely self-serving
declarations and incompetent. Anderson v. Feizer, 75 Wis.
562, 44 K W. 838 ; Befay v. Wheeler, 84 Wis. 135, 53 N. W.
1121; Chase v. Woodruff, 133 Wis. 555, 113 K W. 973;
Fay V. Rankin, 47 Wis. 400, 2 N. W. 562 ; Jihwn v. Stehhins,
41 Wis. 235. It was not shown that the letter was written
or sent by Gertrude Weeks ; only that it was found in the files
and was in her handwriting. The unsworn statements of an
agent are not evidence in favor of the principal. 16 Cyc.
1205, 1206.
it is argued, however, by respondent that the declarations
were not the declarations of agents of defendant, but admis-
sions of W. C. Weeks made through his wife and agent; but
both Weeks and his wife were agents of defendant in the
transactions offered as evidenca It is further argued that the
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5] AUGUST TERM, 1909. 347
T. D. Kellogg L. A Mfg. Co. y. Webster Mfe. Co. 140 Wis. 341.
admissions of Weeks were admissible against plaintiff because
plaintiff is claiming under Weeks, under tbe doctrine that
the admissions of an assignor made prior to the assignment
are admissible against the assignee; citing McCurdy v.
Rogers, 21 Wis. 199, and Snyder v. Jennings, 15 Neb. 372,
19 N". W. 501. But the rule has no application here. The
plaintiff is not claiming as assignee of Weeks. Its cause of
action is based upon breach of warranty by defendant. An
examination of the authorities cited by respondent will show
that they do not support his contention. Snyder v. Jennings,
sv/pra, is to tiie point that where a grantee of land, without
the knowledge or consent of his grantor, surrenders possession
to an adverse claimant, he cannot thereafter maintain an
action upon the cov^aant of warranty without alleging and
proving that the title wbich he surrenders is paramount to the
title received from his grantor. McCturdy v. Rogers, supra,
involves the question of personal liability of an agent, and
the plaintiff sued as assignee of one Lent, and it was held
that the admissions of Lent made before the assignment of
his claim were admissible. This is the general doctrine.
1 Greenl. Ev. (15th ed.) § IQO ; Hayvxird R. Co. v. Duncklee,
30 Vt 29 ; Roebhe v. Andrews, 26 Wis. 311 ; Kreckeberg v.
Leslie, 111 Wis. 462, 87 N. W. 450; Vagts v. Vtman, 125
Wis. 265, 104 N. W. 88 ; Lamoreux v. Huntley, 68 Wis. 24,
31 N. W. 331 ; Ghiswold v. Nichols, 126 Wis. 401, 105 N. W.
815.
Counsel for resjKmdent frankly admits that the books were
not qualified under the statute so as to be admissible in evi-
dence, but he says they were admissible as admissions of
Weeks made by his agent, Gertrude Weeks. The admissions
of Weeks and Gertrude were the admissions of the agents of
defendant^ as we have seen ; therefore were not admissible in
favor of the principal. It is also insisted that there was fraud
and collusion between plaintiff and Weeks established ; there-
fore declarations of Weeks were admissible in favor of de-
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348 SUPREME COURT OF WISCONSIN. [Oct.
T. D. Kellogg L. & Mfg. Oo. v. Webster Mfg. Co. 140 Wia. 341.
fendant. The court below made no findings upon this ques-
tion, and we are not able to say upon the evidence that fraud
was established.
Counsel for respondent further insists that there are no
sufficient exceptions to the ninth finding, to the effect that de-
fendant kept a bank account at Antigo and that Weeks drew
<^hecks against it and made drafts, on the ground that at least
three distinct propositions are embraced in this finding and
that the exception to it is too general. It is at least very
doubtful whether this objection may not be good as to this
finding under the doctrine laid down in Ingersoll v. Seatoft,
111 Wis. 461, 87 N. W. 460, and other cases in this court
But even if this be so, it does not help the respondent out of
the difficulty, because other findings necessary to make the de-
fendant's case are sufficiently excepted to and are imsupported
by competent evidence.
Nor do we think the proposition of respondent's counsel
that Weeks could not, because of his position with the de-
fendant, take the tax certificate in his own name is supported
by the evidence. It is true, if Weeks were charged with the
duty of paying the taxes and was furnished with money by
defendant for that purpose he could not acquire a valid tax
certificate as against defendant McMahon v. McOraw, 26
Wis. 614; Foxv. Zimmermann, 77 Wis. 414, 46 K W. 533;
Oeisinger v. Beyl, 80 Wis. 443, 60 N. W. 601. But in the
instant case Weeks was not charged with the duty of payment
of taxes. From the evidence this duty appears to have rested
with A, J. Webster, president of the defendant^ and the
bookkeeper.
Some other grounds in addition to those considered are ar-
gued by counsel for appellant, upon which it is insisted that
plaintiff was entitled to recover; but, since we have concluded
to reverse the judgment upon other grounds, we shall not treat
them in this opinion.
Without the incompetent evidence erroneously admitted
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5] AUGUST TERM, 1909. 349
Evangelish Lutherisb St M. Gemeinde v. Pniesa, 140 Wis. 349.
there is practically no evidence to support the findings upon
which the judgment rests. It follows, therefore, that the
judgment must be reversed.
By the Court. — The judgment is reversed, and the cause
remanded with instructions to the court below to enter judg-
ment for plaintiff, unless the court below shall in its discre-
tion, upon proper showing, order a new triaL
Evangelish Lxjthebish St. Mabtiks Gemeinde or the
Town of Eelle Plaine, Wisconsin, Respondent, vs.
Pbuess, Appellant
Beptember 1&-Octol>er 5, 1909,
SubscriptUmi: Conditions: Acceptance: Withdrawal: Religious socie-
ties: Corporations de facto.
1. A subscription for the building of a church, made upon condition
that the subscriber should not be called upon for certain work
and that the church corporation should accept it as being in
full of his share of the expense of building, was a mere offer
until accepted as stipulated.
2. Where no other kind of acceptance is stipulated for, a subscript
tion may be accepted by expending money and erecting a bullch
Ing in accordance with the offer.
S. The evidence in this case is held not to show, as matter of law»
acceptance of a subscription upon the condition stipulated, be-
fore a withdrawal thereof.
4. Notwithstanding informalities in its articles of incorporation, a
religious society which has accepted from a member thereof a
subscription to a building fund is, as to the subscriber, a corpo-
ration de facto,
Appeax from a judgment of the circuit court for Shawano
coimty : John Goodland, Circuit Judge. Reversed.
For the appellant there was a brief by WaUrich, DUlelt &
Larson^, and oral argument by A. 8, Larson. They cited.
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350 SUPREME COURT OF WISCONSIN. [Oct.
Evangelish Lutherish St. M. Gemeinde v. Pruess, 140 Wis. 349.
among other cases, First M. E. Church v. Smeny, 85 Iowa,
627, 52 K W. 546 ; Oolden v. Meier, 129 Wis. 14, 107 N. W.
27 ; 27 Am. & Eng. Ency. of Law (2d ed) 285 ; U. S. Grant
University v. Bentley, 117 Wis. 260, 94 K W. 42 ; Lelwnd
Norwegian L. Cong. v. Larson, 121 Iowa, 151, 96 N. W.
706 ; Wiswell v. Bresnahan, 84 Me. 397, 24 Ail. 885 ; M. E.
Church V. Shermaai, 36 Wb. 404; La Fayette C». M. Corp. v.
Magoon, 73 Wis. 627, 24 K W. 17 ; Powers v. Bude, 14 Okl.
381, 79 Pac 89.
P. J. Winter, for the respondent, cited, besides other au-
thorities, Vogt V. Schienebeck, 122 Wis. 491, 100 N. W. 820 ;
Milwaukee C. Asso. v. King, F. & M. Co. 112 Wis. 647, 88
K W. 598 ; Coman v. Wunderlich, 122 Wis. 138, 99 K W.
612 ; Superior C. L. Co. v. BicTcford, 93 Wis. 220, 67 K W.
45; Oibhons v. Grinsel, 79 Wis. 365, 371, 48 K W. 255;
Hodges v. Nalty, 104 Wis. 464, 80 N. W. 726 ; 8. C. 113
Wis. 567, 89 K W. 535 ; Lathrop v. Knapp, 37 Wis. 307.
Timlin, J. This action was brought upon a subscription
agreement signed by the appellant and others underwriting
the following:
"We, the undersigned members of the Evangelish Iai-
fherish 8t. Martins Gemeinde in the town of Belle Plaine,
Shawano county, Wisconsin, pledge ourselves to pay the
amount subscribed back of our names in such rates as are
stated in this list for the building of the new diurdi in the
year 1907/'
The appellant subscribed $200, $100 thereof payable in
January, 1907. At the dose of the testimony the court di-
rected a verdict in favor of the respondent and against the
appellant for $200 with interest This subscription was made
in November or December, 1906. The building of the diurch
commenced in June, 1907. Prior to that time, and soon after
the subscription was made, building material was purchased
by the respondent
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5] AUGUST TEKM:, 1909. 351
Evangelish Lutherish St. M. Gemeinde v. Pruess, 140 Wis. 349.
It is shown by the evidence of both respondent and appel-
lant that appellant signed this subscription list at the instance
of the Reverend Karpinski, the pastor of the church, and one
Meisner, and that there whs a conversation immediately pre-
ceding appellant's signing, substantially to the effect that ap-
pellant would sign and make his subscription $200, provided
be should not be called upon for team work and upon condi-
tion that the corporation should accept this subscription in
full of his share of the expense of building the church. The
two persons soliciting the subscription agreed that the sub-
scription with this condition attached should be brought be-
fore the congregation for acceptance. There is considerable
confusion in the testimony. The record of the meeting of the
respondent corporation contained the following:
^Ttfeeting of the congregation on May 5, 1907, August
Pruess declared that he would be a member of this congrega-
tion no longer. It was decided upon that the pastor and two
-deacons should go to August Pruess and talk over this decla-
ration or this matter with him."
Meisner at a meeting of the congregation, the date of which
is not given, informed the congregation of the condition upon
which this subscription was obtained and the necessity for
accepting the subscription. The record of a meeting of the
•congr^ation on May 19, 1907, contained the following:
"Resolved that August Pruess cannot be released from the
membership of the congregation before he pays his debts
whidi he has with the congregation,"
A witness on the part of the respondent testified that the
subscription of Pruess was accepted by the congregation, but
he did not know when this meeting was held, but it must have
been in May, 1907. The pastor testified that the subscription
was accepted by the congregation in the fore part of the
summer of 1907.
The appellant testified in his own behalf, not very clearly.
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352 SUPEEME COUET OF WISCX)NSIN. [Oct.
Evangelish Lutheriah St. IL Gemeinde v. Praees, 140 Wis. 349.
it is true, but apparently relative to the meeting of May 5th-
lie gave the following testimony:
"There was no meeting before May 5th. . . • I went out
mad, and Koehler came after me, and I told him after this I
would not pay them a cent Thereupon they called
that meeting of May 5th for that purpose to accept it. David
Meisner made a motion that they should accept it- They
simply refused to vote on it^ no action made whatever. •
Thereupon I made a motion to ask them to release me from
the church ; that they would not vote on. Then I asked them
to withdraw that subscription, give me a chance to sign like
them so I could stand to pay afterward. They simply voted
that down. They did not want it Thereupon I left and
ceased to be a member. ... I told them I would not have
anything more to do with that church and would not pay a
cent any more."
After this he was waited upon by the pastor and another
member of the oongr^ation. They said to him the congrega-
tion had done wrong in that they would not accept it^ and
that they were going to accept it after that provided he came
back to the church, and he told th^n he did not want to come
back.
In the face of this positive testimony on the part of the-
appellant and the uncertain testimony on the part of the re-
spondent as to the time of acceptance of the subscription, it
is difficult to see on what grounds the circuit court directed a
verdict for the respondent The subscription was a mere
offer until accepted by the respondent M. E. Church v,
Sherman, 36 Wis. 404; TJ. 8. Orant University v. Bentley,
117 Wis. 260, 94 N. W. 42; 27 Am. & Eng. Ency. of Law
(2ded) 280,285.
In the case at bar this l^al quality of a subscription was-
accentuatod by the designation to the person soliciting the
subscription by the appellant of the body which shoidd ac-
cept his subscription and the concessions that body should
make by such acceptance. It is true that acceptance of a sub-
scription may be made by expending money and erecting a
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6] AUGUST TERM, 1909. 353
Fenton v. Ryan, 140 Wis. 853.
building in accordance with the offer. Superior C. L. Co. v,
Bickford, 93 Wis. 220, 67 N. W. 45 ; EyclesUmer tr. Yan
Antwerp, 13 Wis. 546. But in the instant case another kind
of aooeptance was expressly stipulated for, and, besides, there
is no proof that the congregation accepted this prior to its at-
tempted withdrawal by erecting a building or disbursing
money relying on sudi subscription.
We forbear to comment further on the evidence. Another
trial may disclose a different state of facts or result in clearer
and more definite statements from the same witnesses, or
show that the attempted revocation by the appellant was after
the subscription was accepted by the congregation of the re-
spondent, upon the conditions stipulated. We regard the
complaint as sufficient, but are constrained to reverse the
judgment appealed from because the court below erred in
directing a verdict for the respondent As to the appellant
so contracting, if a contract was really closed, notwith-
standing informalities in the articles of incorporation the re-
spondent was at least a corporation de facto.
By {he Court. — The judgment of the circuit court is re-
versed, and the cause remanded for further proceedings ao-
cording to law.
Fbnton and others. Appellants, vs. Btan and others, Be-
spondents.
Beptember 18 — October 5, 1969.
Villages: Boundariet and area: Legislative discretion: Questions for
courts: Constitutional restrictions: Water areas.
1. The legislature, having the power to create villages, necessarily
has a large discretion in the matter of determining what their
boundaries shall be; and the courts will Interfere with legisla-
tive action in that matter only when the discretion has been
abused and there has been a violation of sec. 3, art XI, Const.
Vol. 140— 23
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354 SUPREME COURT OF WISCONSIN. [Oct.
Fenton v. Ryan, 140 Wis. 353.
(requiring the legislature to provide for the organization of
incorporated villages), or of sec. 23, art IV (requiring uniform-
ity in town and county government).
2. Restrictions upon the size and with respect to density of popula-
tion of territory which may be indluded in an incorporated vil-
lage must be implied from the name of the corporation and the
purpose for which it is incorporated.
3. It may well be that it is competent for the legislature to say, as
in sea 854, Stats. (1S98), that the area of a village to be in-
corporated shall not be less than one half a square mile, on the
ground that territory to that extent is reasonably necessary
to carry out the purposes for which villages are incorporated.
4. The inclusion in a new village of territory, in excess of one half
a square mile, consisting of sparsely settled rural or agricul-
tural lands not having the distinctive characteristics of a vil-
lage or any natural connection therewith, and not reasonably
appurtenant and necessary for the future growth of the village,
would be an invasion of the uniformity in town and county gov-
ernment required by sec. 23, art. IV, Const.
5. Whether, in a given case, the territory in excess of one half a
square mile which it is proposed to include in a new village is
such that it may properly be Included therein, is a question for
the courts. A dictum to the contrary in In re North Milwaukee^
93 Wis. 616, held ohiter.
6. A holding by the circuit court in this case that a water area of
seventy-five acres embraced within the boundaries of a pro-
posed village should be included as part of the one-half square
mile provided for by sec. 854, Stats. (1898), was not erroneous;
nor was it tantamount to a holding that no village oould be
incorporated which bordered on a large body of water, since
the petitioners need not include water areas in their proposed
boundaries, nor is there any statutory limitation of the area of
the village other than that it shall not include the entire town
or towns.
Appeal from an order of the circuit court for Outagamie
county : John Goodlakd, Cii-cuit Judge. AfftrmecL
The appeal is from an order denying the application of
the petitioners for an order incorporating the village of
Kimberly.
For the appellants there were briefs by C. O. Cannon, at-
torney, and a separate brief by Hooper & Hooper, of counsel,
and oral argument by Mr. Ccunnon and Mr. Moses Hooper.
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5] AUGUST TERM, 1909. 355
Fenton v. Ryan, 140 Wis. 363.
For the respondents the cause was submitted on the brief of
Albert H. Erugmeier.
Barxes, J. The court found that of the 576 acres em-
braced within the boundaries of the proposed village about
465 acres were rural or agricultural lands sparsely settled,
not having the distinctive characteristics of a village, and not
reasonably appurtenant to the remaining territory, and not
necessary to be included within the limits of the proposed
village for any legitimate purpose. Of the remaining 113
acres the court foimd that seventy-five acres were covered with
water, and that the settled portion of the proposed village
contained but thirty-eight and one-half acres, and that one
half a section of land, including the submerged acreage, was
ample territory for the proposed village, in view of its loca-
tion, surroundings, and prospect of future growth. Upon the
findings so made the court denied the application of tlie peti-
tioners.
But one substantial objection is uiged in support of the
claim that the order appealed from is erroneous. It is argued
that it is no proper function of a court to decide whether the
proposed boundaries include an excessive amount of land, so
long as the proposed area does not conflict with any statutory
requirement It is urged that the matter of fixing the limits
of the village is a legislative or political question and not a
judicial one, so long as such limits include one half a square
mile in area and do not include the entire town. The cases
of In re NoHh Milwmkee, 93 Wis. 616, 67 K W. 1033, and
Nash V. Fries, 129 Wis. 120, 108 K W. 210, are cited as sus-
taining the contention so made. It is held in the North Mil-
wavJcee Case that courts cannot decide questions of legislative
policgr by determining whether or not a village should be in-
corporated; that the legislature may say what prerequisites
must exist and what steps must be taken before incorporation
can be effected, and may authorize the courts to determine
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356 SUPREME COURT OF WISCONSIN. [Oct.
Fenton t. Ryan, 140 Wis. 35a
whether sudi facts exist, but that no discretion can be vested
in the courts to grant or refuse a certificate of incorporation.
It was said by way of illustration that a court might deter-
mine such questions as whether the survey was correct^
whether the population was as large as the statute required
in proportion to the area, and whether the statutory require-
ments have been complied with on all questions of fact which
the court may determine, 'but that Ce court might not deter-
mine whether the lands embraced in the petition should
justly be included in the village, or whether the interests of
the inhabitants would be promoted by the incorporation, or
whether the boundaries of the village could be enlarged or
diminished as justice might seem to require; sudi questicms
b^g legislative or political and not judicial In Nash v.
Fries, supra, it was held that if ch. 21, Laws of 1905, should
be oonstrued as vesting any discretion in the court to say
whether a new town should be organized or not, the law could
not be upheld under the rule of the North Milwaukee Case.
If, as contended by counsel for appellant, the court, in de-
ciding that the boundaries of the proposed village included
territory which should have been excluded, was passing upon
a question that was legislative and not judicial, it follows as
a matter of course that the c^der appealed from is erroneous
under the decisions referred to. That the question is one
for judicial determination is decided in State ex rel. Holland
V. Lammers, 113 Wis. 398, 86 N. W. 677, 89 N. W. 501.
In deciding that case the court construed the law providing
for the incorporation of villages in connection with sec. 3,
art XI, of our constitution, which declares that "It shall be
the duty of the legislature, and they are hereby empowered,
to provide for the organization of cities and incorporated vil-
lages," and also in connection with sec* 23, art. IV, of the
constitution, which provides that "The l^slature shall es-
tablish but one system of town and county government, which
shall be as nearly uniform as practicable." The court there
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5] AUGUST TEEM, 1909. 357
Fenton t. Ryan, 140 Wis. 353.
defined what a village was understood to mean at the time of
the adoption of the constitutiim, and held: (1) That if the
law authorizing the incorporation of villages, as properly con-
strued, permits rural territory possessing none of the atr
tributes of villages to change from town to village government
at will, it cannot be sustained. (2) That the law providing
for the incorporation of villages fixes no limitation as to the
maximum size of the territory that may be incorporated, ex-
cept that it must be part of a town or towns, and prescribes no
restriction as to density of population, except that it shall con-
tain a resident population of not less than a stated number.
(3) That a village means an assembly of houses less than a
city, but nevertheless urban or semi-urban in its character,
and having a density of population greater than can usually
be found in rural districts, and that this was the understood
meaning of what constituted a village at the time the constitu-
tion was adopted. (4) That if the law providing ior the in-
corporation of villages contains no restriction upon the size
or density of population of the territory sought to be incor-
porated, a restriction must be implied from the name of
the corporation and the purpose for which it is incorporated.
(5) That only territory urban in diaracter, with such adja-
cent lands as are naturally connected with and are reasonably
appurtenant and necessary for future growth in view of the
surroundings and circumstances of the location and pros-
pects of future prosperity, may be incorporated in the village.
(6) That the territory seeking admission as a village must be
harmonious with the idea of what a village actually is. It
may not include large areas of rural or agricultural lands
sparsely settled or widely distributed. It may only include
lands having the distinct characteristics of a village, and such
additions as have a natural connection with and seem rea-
sonably appurtenant to and necessary for future growth.
(7) That it is a question of fact, to be determined in each case
as the question arises, whether the provisions of the constitu-
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358 SUPREME COURT OF WISCONSIN. [Oct.
Fenton v. Ryan, 140 Wis. 363.
tion referred to may be violated by including territory within
the limits of the village which should not be included therein.
Such inquiry is judicial, not legislative, at least in the absence
of any legislative declaration on the subject (8) That the
right to incorporate a village under sec 864 is limited to
such territory as possesses the characteristics mentioned. It
must be a village in fact, with a reasonably compact center
or nucleus of population, and not a mere agricultural com-
munity. If territory beyond the thiddy settled limits is
included, sudi territory ought reasonably to possess some
natural connection with and adaptability to village pur-
poses and seem reasonably to be necessary for future growth
and development. (9) That in the absence of some specific
legislation ihe courts must meet and determine in each given
case the fact as to whether these restrictions have been over-
stepped.
It will be observed that the only declaration the l^slature
has made which affects the case before us" for consideration is
that any part of any town or towns not less than one half a
square mile in area and not included in any village and all
lying in the same county, which shall contain a resident popu-
lation of 300 persons therein, may become incorporated as a
village by taking certain steps enumerated in the statute.
The legislature, having the power to create villages, neces-
sarily has a large discretion in the matter of determining
what the boundaries of such villages shall be. It is only when
the discretion has been abused and the provisions of the con-
stitution referred to have been violated that the courts may
interfere with legislative action. The legislature has acted to
the extent of saying that the area of the village which it is
proposed to create shalL not be less than one half a square
mile. Beyond this the l^slature has not gone. It may well
be that it is entirely competent for the legislature to say that
territory to the extent named is reasonably necessary to carry
out tlie objects and purposes for which villages are incor-
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5] AUGUST TERM, 1909. 359
Fenton v. Ryan, 140 Wis. 853.
porated. When we get beyond the legislative declaration,
however, it would seem to be clearly a question of fact for the
court to determine in each instance, under the law as it
stands, whether the territory in excess of one half a square
mile which it is proposed to include possesses the attributes
which should naturally belong to territory included within
the confines of an incorporated village. If it is proposed to
include rural or a^cultural lands that are sparsely settled,
and that have not the distinctive characteristics of a village,
and have no natural connection therewith, and which do not
seem to be reasonably appurtenant and necessary for the
future growth of the village, then the uniformity of town and
county government guaranteed by the constitution is invaded
imder the decision of this court in State ex reL HoUand v,
Lammers, 113 Wis. 398, 86 N. W. 677, 89 K W. 501.
There cannot be any doubt that such a question is judicial in
its character. The courts are the ultimate tribunals to deter-
mine whether or not the constitution has been violated in a
given case. It is not seriously contended in this calse that the
facts as foimd by the court are not supported by the testi-
mony. This being true, we see no escape from the conclusion
that it would be a violation of the provisions of the constitu-
tion referred to, to incorporate this village and include within
its boundaries the amount of territory described in the peti-
tion for incorporation. The statement in the North MU-
wa/ukee Case that a court could not determine whether lands
embraced in a petition for incorporation should justly be in-
cluded in the proposed village was made in reference to a
subject not directly before the court for determination and
can hardly be considered a part of the decision of the court
Besides, the constitutional question raised and decided in
State ex rel. HoUand v. Lammers was not raised, passed upon,
or considered in the North Milwaukee Case.
It is argued that the court was in error in holding that the
water area, embraced within the boundaries of tlie proposed
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360 SUPREME COURT OF WISCONSIN". [Oct.
State ex rel. Davem t. Rose, 140 Wis. 360.
village should be included as part of the one-half square mile
provided for by sec. 854, Stats. (1898), and that sudi a
ruling was tantamount to holding liiat no village could be in-
corporated w^di bordered on a large body of water. We do
not think the position is tenable. The incorporators of the
proposed village were not obliged to include water areas
within the village limits if they did not desire to do so.
Furthermore, there is no limitation placed upon the area of a
village by statute further than to prevent the entire town or
towns out of which the village is carved from being included
within its boundaries.
We think the objectors had a sufficient interest in the pro-
ceeding to entitle them to appear therein and resist the grant-
ing of the petition, and that the court was authorized by
sea 860 to refer the questions in issue to a referee for exam-
ination and a report thereon, and that ^e order of the circuit
oourt should be affirmed*
By the Court. — Order affirmed.
State bx bbi-. Daveeit, Respondent, vs. Rose, Mayor, etc..
Appellant*
Septeml>er 20 — Octoler 5, 1909.
Constitutional Jaw: Executive officers: Discretion: Interference l>y
courts: Municipal corporations: Powers of mayor: Suspension
of officers: Presumption of good faith: Mandamus.
L Courts have no right to Interfere with the exercise of the discre-
tion vested in executive officers, state or municipal.
2. No wrong, in the legal sense, results when one receives all that
the law accords him; and when the only right of an individual
or of the public which the law gives is that which a designated
officer deems best, the honest decision of that officer is the
measure of the right *
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5] AUGUST TERM, 1909. 361
State ex rel. Davern v. Rose, 140 Wis. 360.
Z. Where an absolute duty. Involving nothing of judgment or dis-
cretion, has been imposed upon an administrative or executive
officer, performance thereof may be enforced in a proper case
by the courts, if no other adequate method is provided.
4. A city charter declaring that the mayor shall be "the .chief execu-
tive officer and the head of the fire department and of the police
In said city" and that he shall "take care that the laws of the
state and the ordinances of the city are duly observed and en-
forced/' confers upon the mayor all of the power of a chief
executive, except as elsewhere limited, with the necessary right
of discretion and judgment, and does not make him a mere ad-
ministrative officer.
^. The executive power conferred upon the mayor by such a charter
Includes the power to appoint and remove subordinate executive
officers at discretion, except as qualified by other charter pro-
visions.
€, Where a statute (ch. 378, Laws of 1885) amending a city charter
rested the power of appointment and removal of the chiefs of
the fire and police departments in a board of commissioners,
but provided that either of said officers should be subject to sus-
pension from office for cause by the mayor at any time, and
that the mayor should at once communicate to said .board the
charge or charges against an officer so suspended, for the deci-
sion of the board thereon, the suspension might be made for
any cause which, In the honest judgment of the mayor, might
reasonably render It advisable for the public good.
7. The power and the duty of the mayor as to suspension of officers
under such a statute Is discretionary In a very high degree. He
may weigh all considerations In determining whether he should
exercise the power; and his decision not to exercise It, even
where there has been gross dereliction on the part of the sub-
ordinate officer, Is not subject to review or direction by the
courts, unless there has been an entire refusal to consider and
exercise discretion.
8. The mayor In such a case need not declare the reasons for hla
decision or his action in deciding against suspension. It being
enough for him to declare that he deems the public welfare pro-
moted by action or inaction, and even that declaration need
only be by the act.
$. The courts In such a case must Indulge In every prima fade pre-
sumption In favor of the good faith of the executive officer In
his discharge of his duties, and only when It is established by
the clearest possible evidence that he has wholly refused to
exert his jurisdiction or to exercise any discretion whatever
can the courts properly Interfere by mandamus.
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362 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Davem v. Rose, 140 Wis. 360.
10. Where, upon charges being filed against a subordinate officer,
the mayor entered into an investigation, taking various meana
to Inform himself of the facts and of the situation, and de-
clared his conclusion that the charges did not warrant sus-
pension, there was an exercise of the discretion vested in him,,
and mandamus will not lie.
Appeal from an order of the circuit court for Milwaukee
county: W. J. Tuknee, Circuit Judge. Reversed,
Mand<imus. Relator asserts himself to be a citizen and
taxpayer of the city of Milwaukee and that he petitions on
behalf of himself and all others similarly situated; asserts
various acts of misconduct on the part of the chief engineer
of the fire department of said city, and that in September,
1908, he filed with the respondent^ then and now mayor of
the city of Milwaukee, certain charges of such misconduct;
that thereupon said respondent called to his oflSce a large
number of the members of the fire department and took their
ex parte oral statements, and thereupon refused to suspend
said chief or to send such charges to the board of fire and po-
lice commissioners for investigation, on the ground, as stated
by respondent, that said charges were too flimsy to receive
serious consideration. The charges consist principally in that
some two or three years before said chief temporarily mis-
appropriated certain fimds under his oflScial control; that
he committed perjury, for which he was indicted, tried,
and acquitted in 1907; that at that time he was also guilty
of subornation of perjury; that at some times, not named,
the labor of certain city employees, and also certain city
property, was under said chiefs command expended for his
private benefit; that he appointed a man upon the fire force
because of personal pecuniary obligation to him instead of
fitness; that immediately after filing such charges against
him he discharged several of the members of the fire depart-
ment ; and other things not deemed material for statement.
The respondent moved to quash the alternative writ issued
upon said petition (1) for insufficiency of tJie matter therein
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5] AUGUST TEEM, 1909.
State ex rel. Davern v. Rose, 140 Wis. 360.
stated to warrant a writ of mandamus; and (2) for defect of
parties respondent by reason of the nonjoinder of the chief..
The motion to quash was denied, from which action this ap-
peal is brought by respondent*
For the appellant there was a brief by John T. Kelly, city
attorney, and Walter H. Bender, assistant city attorney, of
counsel, and oral argument by Mr, Bender,
For the respondent there was a brief by Ryan, Ogden &
Bottum, attorneys, and Hugh Ryan, of counsel, and oral
argmnent by Mr, Ryan. They contended, irvter alia, that
mandamus will lie to compel the mayor to suspend the chief
of the fire department and send the charges against him to the
board of police and fire commissioners for investigation.
State ex rel. Buchanan v. Kellogg, 95 Wis. 672 ; State ex rel.
Starkweather v, Superior, 90 Wis. 612; State ex rel. Coffey
V. Chittenden, 112 Wis. 569, 574; State ex rel, McGovem v.
Williams, 136 Wis. 1 ; People ex rel. Empire City T. Clvb
V, Slate Racing Common, 190 K Y. 31, 82 N. E. 723 ; Mer-
rill, Mandamus, §§ 37-41; State ex rel. Castor v. Saline Co,
18 Neb: 422, 25 N. W. 587; Stockton & V. R. Co. v. Stock-
ton, 51 Cal. 328, 338; Raisch v. Board of Ed. 81 Cal. 542,
546; Wood v. Strother, 76 Cal. 545, 546, 548; Brokaw v.
Comm'rs, 130 IlL 482, 490, 22 N. E. 596; Olencoe v. People
ex rel Owen, 78 HI. 382, 388, 390 ; State ex rel Brickman v.
Wilson, 123 Ala. 259, 45 L. R A. 772 ; State ex rel Adamr
son V. Lafayette Covnty Court, 41 Mo. 221, 226 ; Detroit v.
Hosmsr, 79 Mich. 384, 386, 44 N. W. 622 ; Ex parte Brad-
ley, 7 Wall. 364, 377; Virginia v. Rives, 100 U. S. 313, 323.
Dodge, J. With a debated question of defect of parties
we shall not concern ourselves, since the view we hare taken
upon the general merits of this case renders it immaterial to
Uie result
The general plan of the government of the state, either
generally or in such sections as its municipal corporations, is
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364 SUPREME COURT OF WISCONSIN. [Oct.
state ex rel. Davem y. Rose, 140 Wis. 360.
framed upon the theory of intrusting to the legislative and
executive branches^ and administrative officers appointed
within them, the formulation of policy and the execution
thereof by officials, constitutional or legislative, in whom is
vested the discretion as to what will be most promotive of the
welfare of the community. In general that policy is decided
by the legislature, in detail it must in many respects be left
to the individual officials acting upon their knowledge of
specific situations and their judgment as to what the public
good requires in those specific instances. Those officers are
selected either by the people directly, or by some other
method considered likely to procure the persons best qualified
in judgment, character, and ability to perform their re-
spective duties. They take their places as public officers un-
der the sanction of an oath of office and imder the burden of
a trust as binding and transcendent as do the judges of the
courts. Their selection either by the people themselves di-
rectly or by their authorized representatives carries with it
declaration of the fitness of each officer for his place, conclu-
sive until the appointing authority can have an opportunity
to speak again, or until those tribunals vested with authority
to remove are invd^ed. With the exercise of the judgment
and discretion committed to such officials the courts have no
right to interfere, and this for a very good reason. The oc-
cupants of judicial places are not selected to manage the
political affairs of the state. The qualifications for their
places are vastly different and not sudi as to imply abilities
to that end. Again, their opportunities for acquainting
themselves with the needs and wishes of the people of the
state or any locality, with all the complex elements involved
in a given exigencgr, are in nowise comparable to those of the
legislative or administrative officers. So that^ other things
being equal, the probabilities of a correct estimate of the
needs of the public are far less in case of the judges than
they are in case of the holders of the political offices. Of
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5] AUGUST TERM, 1909. 365
State ex rel. Davern v. Rose, 140 Wis. 360.
course, all oflScials, being human, are liable to err, and the
people must suffer the results of errors of judgment into
which their responsible officials, judicial as well as others,
may fall; but at least the theory of our government is that
the peril of error of judgment or intention on the questions
committed to them is less in the legislative and executive offi-
cials, close to the people and dose to the facts of the exi-
gencies in which they act, than it would be at the hands of
the judiciary, selected for its supposed ability to apply ab-
stract rules of law to concrete instaneea
Thus much has been said because of a growing tendency^
of which we think the present proceeding is illustrative, to
suppose that any individual who differs with a public official
as to the policy which the latter should pursue may demand
that the judgment of some court as to his conduct shall be
substituted for his own, and control his official acts. Nothing
could be further from the theory of our government nor less
likely to be promotivB of public welfare. People ex rel.
StUherlwnd v. Oovemor, 29 Midi. 320. Courts sit to remedy
wrongs, and it is often urged that no wrong should by courts
be allowed to go without a remedy ; but no wrong in the legal
sense results when one receives all that the law accords him.
So when the only right of an individual or the public whidi
the law gives is that which a designated officer deems best,
the honest decision of that officer is the measure of the right,
however his judgment may differ from that of others, even
of the courtSw State ex rel. Cook v. Houser, 122 Wis. 634,
670, 100 N. W. 964; RoweU v. Smith, 123 Wis. 510, 528,
102 N. W. 7.
Of course it is true that the legislature may, and very
frequently does, impose upon executive and administrative
officers absolute duty involving nothing of judgment or dis-
cretion except sudi as is first exercised by the legislature
itaelf, which discretion, being there exercised and pronounced
in the law, leaves no choice to the official Such ministerial
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366 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Davern v. Roae, 140 Wis. 360.
duty may be enforced in a proper case by the courts if there
is no other adequate method provided. It therefore becomes
essential in every case of official action to consider whether
the legislature has so passed upon aU questions of policy and
■discretion and imposed by law a mere ministerial duty in
obedience to their decision, or has reposed in the administra-
tive or executive officer discretion as to when, or how he ought
to act
In organizing the government of the city of Milwaukee the
legislature followed the general lines of the governments of
the United States and of the several states in creating legis-
lative and executive departments and officers, mainly inde-
pendent of each other. The charter provided for a mayor
having, within the limited territory, the substantial charac-
teristics of a diief executive in analogy to the President of
the United States and the governors of the several states.
The charter declared that the mayor should be "the chief ex-
ecutive officer and the head of the fire department and of
police in said city," and that he should "take care that the
laws of the state and the ordinances of the city are duly ob-
served and enforced." These expressions signify the con-
ferring of all the powers of a chief executive, except as else-
where limited, with the necessary right of discretion and
judgment. They also evince the reliance and confidence in
the motives which should actuate the decisions finally arrived
at by such an officer which accompany the delegation of broad
discretion and responsibility to the other principal officers of
government; imposing as an assurance and sanction for the
faithful performance of such duties the same official oath as
in the case of a governor of a state or the judges of the high-
est courts. The mayor, therefore, generally speaking, is in
no sense a mere ministerial officer to perform only acts as to
which the legislature has exercised all discretion and judg-
ment and made him a mere implement of expression. While,
as already said, mere ministerial duties may incidentally be
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-5] AUGUST TERM, 1909, 367
State ex rel. Davern#r. Rose, 140 Wis. 360.
conferred upon him, tbe general words of the charter go
much further. They indicate reliance in his discretion
rather than mere ministerialism.
From early times the grant of executive power, the general
power to execute the laws, has been construed as broadly ef-
fective of itself, and especially so in the matter of appoint-
ment and removal of subordinate officers. On this subject
occurred the most famous historical instance of constitutional
construction by a legislative body. In the first Congress
of the United States, upon a bill to create the Secretary of
Foreign Affairs, to be appointed by the President 'with the
consent and approval of the Senate and "to be removed
from office by the President of the United States,'^ ensued
in the House of Representatives one of the most remarkable
debates in the history of the federal government, on the
question whether the last-quoted words should be eliminated
because implying assertion of power in the Congress to grant
or withhold the right of removal; it being contended, on the
one hand, that the power under the constitution might rest in
any of several places, and, on the other hand, under the lead-
ership of James Madison, that the "executive power'' con-
ferred by the constitution on the President had already
vested in him the power of removal of executive officers,
and that the Congress could not take it away and should not
appear to claim such right Those debates are contained
in 1 Annals of Congress, extending from page 455 to page
686, and resulted in the overwhelming adoption of Mr.
Madison's contention against the proposition that the power of
removal inhered in or resulted from the power of appoint-
ment or rested with the legislature to grant or withhold,
but. that it was included in the "executive power," and
hence was vested in the President That construction of
the constitution has received multitudinous approval since,
and been recognized by all thoughtful and careful writers,
jurists, and attorneys-general of the United States as settled.
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368 SUPREME COURT OF WISCONSIN. [Oct.
State ex reL Davern % Roee, 140 Wis. 360.
2 Marshall, Life of WaAingtwi, 162; 1 Kent, Comm. 310;.
Bancroft, History of the Constitution; Ex parte Hermen,
13 PeL 225; 4 Op. Att'y Gen. (L^are) 1; Id- (Clifford)
603, 609; 5 Op. Att'y Gen. (Crittenden) 288, 290. This-
subject was exhaustively discussed and a very ocHuplete ooUeo-
tion of the expressicms of leading writers thereon embodied
in the brief for the government in Parsons v. U. 8. 167 U. S.
324, 17 Sup. Ct 880. Mr. Madison's views, thus adopted,
are expressed more particularly on pages 462, 463, 464, and
499 of 1 Annals of Congress. Thus, before adoption of our
constitution and before the draft of the Milwaukee charter, it
had become established that executive power as conferred by
such instruments included the power to appoint and remove
subordinate executive officers at discreticoi, except as qual-
ified by other expressions.
Hence, se^ningly, it would be plain that in the absence of
any other charter provisions the mayor, merely by his crea-
tion as the chief executive, and by the imposition of the duty^
to see that the laws and ordinances were enforced, would
have the power of appointment and removal. That power,
however, was qualified in some degree through all stages of
the diarter of Milwaukee np to the adoption of a fire and
police commission by ch. 378, Laws of 1885, whereby the ap-
pointment and removal of the chiefs of the fire and police de-
partments was vested in that board and taken away from the
mayor. Sec 6 of that act provides that in case of a vacancy
in either office it shall be the duty of said board to appoint
proper persons to fill such offices "during good behavior, sub-
ject to suspension and removal as hereinafter provided;" and
sec 12 conferred on the board tlie power to remove either
such officer when of the unanimous opinion that the good of
the service would be subserved thereby. These provisions,
emanating from the legislature, were of course limitations
upon the executive power of the mayor, but accompanying
them was sea 11 of the same act, which provided that the-
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5] AUGUST TERM, 1909. 369
State ex rel. Davern v. Rose, 140 Wis. 360.
chief of police and the chief of the fire department and other
specified officers shall be subject to suspension from office for
cause by the mayor at any time. Any officer so suspended
shall thereupon cease to exercise the functions of his office
until he shall be reinstated. In case of such suspension the
mayor shall at once communicate to said board the charge or
charges against the officer suspended, and the board shall at
once consider and examine the same, giving the suspended
officer opportunity to meet the charges and to be heard in his
owa defense. If the charges are not sustained by the board
the officer shall be immediately reinstated. If they are sus-
tained the board shall determine whether the good of the
service requires removal from office or suspension, and their
decision shall control the action of the mayor.
It is clear that thus was formulated an entirely new
scheme or plan with reference to certain subordinate execu-
tive officers, whereby the whole subject of their appointment
and removal was taken out of the hands of the chief execu-
tive of the city and vested in a board ; but it is equally ap-
parent that the legislature appreciating the inherent inca-
pacity of such boards for prompt and effective executive ac-
tion in emergencies, intended to preserve in the mayor the
power of suspension in a proper case. That power was lodged
in the mayor as essential to his duty to guard the general
welfare and to see that the laws and ordinances should be
enforced. The cause mentioned in sec 11 for which the sus-
pension might be made, of course means any cause which in
the honest judgment of the mayor as a trusted and responsi-
ble chief executive might reasonably render such suspension
advisable for the public good. The discretion so conferred
empowered him to weigh aU considerations in deciding
whether sufficient cause existed for such suspension. Those
causes and considerations are innumerable. A perfectly good
cause for removal may be no sufficient cause for summary
suspension, and, vice versa, a good cause for temporary sus-
VoL. 140—24
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370 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Dfivern v. Rose, 140 Wis. 860.
pension may exist which does not warrant complete removal.
In the case of the fire chief his abilities as a fighter of fire to
preserve property and the safety of the comnmnity are con-
siderations of great importance which may well deter the
mayor in his honest judgment from even temporarily dis-
placing him and leaving the city without his services, al-
though he may lack many other attributes of an ideal public
officeTy and thus make choice of a successor advisable. The
condition of things as to the presence upon the force of a sub-
ordinate able to supply those emergency qualities which the
chief may have might well justify the mayor in deciding not
to suspend one whom he may believe ought not permanently
to continue as the chief of that fire department because of
other defects of character during consideration by the board
of the suflSciency of those defects as cause of removal. For
multitudinous reasons Uke these, it is not the absolute duty
of the mayor, even if informed of great or even gross derelic-
tion in certain directions, to momentarily deprive the city of
the protection resulting from other abilities of such an ofiBcer
as the fire chief or the chief of police.
The contention of respondent to the effect that whenever
•charges are Uid by a "citizen and taxpayer'' a ministerial
•duty is imposed upon the mayor to forthwith suspend, at once
suggests illustrations which are convincing of the impossi-
bility of such legislative intention. Were the chief of police
engaged in a campaign against gambling houses or houses
of ill-fame, he would naturally draw upon himself the an-
tagonism of those who profit from such establishments, and
if, at the critical moment of such proceeding, a fearless and
effective chief of police must lay down the fight because the
proprietor of such a building, a "citizen and taxpayer," laid
some charge of general impropriety or even dishonesty
against him, the possibility of the enforcjement of the laws
and ordinances for the time being at least might well dis-
appear. The mayor must be authorized in such a case to look
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5] AUGUST TERM, 1909. 371
State ex rel. Davem v. Rose, 140 Wis. 360.
not alone to the charges, but as well to the necessities of the
community. The poesibility of a substitute for the assailed
officer competent to meet the exigencies of the moment and
an infinity of other considerations as to whether it is best
that he be. summarily suspended and the office left vacant
until the commission can, in the slow course of investigation
and procedure that must characterize such bodies, fill the
place with another appointee, present themselves in such a
contingency. We are persuaded that the power, and of
course the duty, of suspension preserved in the mayor by
sea 11 is discretionary in a very high degree, and therefore,
under the uniform holding of this court, that the mayor's de-
<5ision not to exercise it is not subject to review or direction
by the courts, unless indeed there may be found an entire re-
fusal to consider and exercise discretion. State ex rel. GUI
V, Common Council, 9 Wis. 254; State ex rel, Geriche v.
Mayor, etc, 99 Wis. 322, 326, 74 N. W. 783; State ex rel.
Coffey V. CUttenden, 112 Wis. 569, 574, 88 N.. W. 587;
State ex rel People's L. & Mfg. Co, v. Holt, 132 Wis. 131,
111 N. W. 1106; State ex rel Fw. Met Tel Co, v, MUr
wavkee, 132 Wis. 615, 618, 113 K W. 40; State ex rel
Rudolph V. Hutchinson, 134 Wis. 283, 114 N. W. 453 ; Slate
ex rel Yanderwall v. Mayor, etc. 134 Wis. 437, 114 K W.
802;,/8'tefe ex rel Wagner v. Dahl, ante, p. 301, 122 1!^. W.
748 ; High, Extr. Leg. Eem. § 42.
In this case we can find nothing of such refusal. There
is no duty resting upon an executive officer vested with such
ample discretion, as this to declare the reasons for his decision
or his action in deciding against suspension. It is enougli
for him to declare that he deems the public welfare pro-
moted by action or inaction, which declaration indeed need
only be by the act John Adams, who, as Vice-President, had
cast the deciding vote in favor of Madison's construction
of executive power, referred to in an earlier part of this
opinion, gave his own illustration, when President, of the
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372 SUPREME COURT OF WISCONSIN. [Oct.
State ex reL Davem v. Rose, 140 Wis. 360.
extent of accountability of the chief executive under such a
power in his communication of May 12, 1800, to the then
secretary of state, whidi reads:
*T>ivers causes and considerations essential to the admin-
istration of the government in my judgment requiring a
change in the department of state, you are hereby discharged
from any further service as secretary of state. John Adams,.
President of the United States."
In the presence of such a solemn dedaration courts must
indulge in every prima facie presumption in favor of the
good faith of the executive officer in his discharge of his.
duties as such, and only when it can be established by the
clearest possible evidence that such officer has wholly refused
to exert his jurisdiction or to exercise any discretion whatr
ever can the courts properly interfere by mandamus. Spaldr
ing V. Vilas, 161 U. S. 483, 16 Sup. Ct. 631 ; People ex rel.
PeaJbody v. AWy Oen. 22 Barb. 114, 118 ; Ely v. Cram, 17
Wis. 637; Connor v. Marshfield, 128 Wis. 280, 288, 107 N.
W. 639.
In the present case it appears by the relation itself that*
upon receipt of relator's so-called charges the mayor did enter
into an investigation, took various means to inform himself
of facts and of the situation, and declared his conclusion that
the charges did not warrant the suspension of the officer, re-
sulting as it must to the latter's great detriment and to the
deprivation of the city and the public of his services. It is
apparent^ therefore, on the face of the papers that the discre-
tion was exercised, and that the conditions upon which it
might be the duty of the mayor to suspend the fire chief did
not exist Hencei, of course, the motion to quash should have
been granted.
By the Court. — Order reversed, and cause remanded with
directions to quash the alternative writ of mandanms and to
dismiss the proceeding.
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5] AUGUST TERM, 1909. 373
Rath V. State, 140 Wis. 373.
Ruth, Plaintiff in error, vs. The State, Defendant in error.
Septemher 20 — Octo}>er 5, 1909.
Criminal taw: Information: Election hettoeen count$: Banks and
tanking: FaUe entries and false reports: Evidence: Expert ac-
countants: Conclusions from books: Immaterial errors: Ver-
dict: Presumptions: Instructions ta fury,
1. The matter of requiring prosecuting officers In criminal cases to
elect on what count of an Id formation they will prosecute the
cause is very much in the discretion of the trial court
2. Three counts charging a bank cashier (1) with making false en-
tries in the certificate register of the bank, (2) with making
false entries in a ledger as to the amounts due from another
bank, and (3) with making a false report to the commissioner
of banking as to the amount due on time certificates and as to
the amount due from other banks, all in violation of sea 17,
Bubch. II, ch. 234, Laws of 1903, were properly included in one
information; and it was not error to refuse to compel the prose-
cuting attorney to elect between them.
3. In the trial of a case involylng the examination of long book ac-
counts it is proper for expert accountants to give in evidence,
in summary form, the results of their examination of the books,
time and opportunity being granted to the opposite party to
use the books to test the correctness of such evidence and for
the purpose of cross-examination.
4. In a prosecution for making a false report to the commissioner
of banking, defendant was not prejudiced by testimony of ex-
perts that the books of another bank showed that he had falsi-
fied book entries and his report of the amount due from other
banks to his bank, although there was no evidence of the con-
tents of the books of the other bank or of their correctness, —
it appearing otherwise conclusively from the report that de-
fendant knowingly made a false report based on Incorrect state-
ments in the books of his bank, so that the testimony of the
experts was simply corroborative of defendant's admitted knowl-
edge of the falsity of the book entries and of his report to the
commissioner of banking based thereon.
^ Under a count in an information charging that defendant wil-
fully made a false report to the commissioner of banking re-
specting (1) the amount due from other banks and (2) the
amount of outstanding time certificates of deposits, a verdict of
guilty may be sustained upon proof that the report was false
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374 SUPKEME COURT OF WISCONSIN. [Oct.
Ruth V. State, 140 Wis. 373.
as to either one of the two matters specified, if it appears that
the jury a^eed as to that one.
6. In such a case a verdict of not guilty on another count charging
the making of false entries in the bank's register of certificates
(with which entries the report as to such certificates agreed)
is held to show that the verdict of guilty as to the report was
based on an agreement of the Jury that such report was false in
respect to the amount due from other banks.
7. It will be presumed that the verdict of the Jury rests upon the
facts established by the evidence.
8. An information charging the making of a false report to the com-
missioner of banking respecting two specific matters was read
to the. jury, and they were instructed that it was for them to
determine under all of the evidence "whether or not there are
any false statements or false entries in reference to the re-
sources and liabilities of the bank . . . contained in such
report, and whether or not such report contains any false state-
ments or false entries with reference to any of the books of
such bank." Held, that It must be presumed that the jury ap-
plied this general language to the specific matters charged in
the information read to them, and that the instruction was not
prejudicial to the defendant.
Appeal from a judgment of the circuit court for Trempea-
leau county : J. J. Fbuit, Circuit Judge. Affirmed.
The defendant in this case was the cashier of the Bank of
Arcadia. lie had been cashier for twenty-five years and was
the executive head of the bank. In response to' the request of
the state commissioner of banking the defendant on Decem-
ber 3, 1907, made a report of the condition of the bank under
his charge. The report was unsatisfactory to the commis-
sioner, and upon examination of the bank he determined that
the cashier was guilty of irregularities in the administration
of the bank's affairs and had attempted to conceal them by
false entries and omissions in the bank's books and by false
statements in his report Defendant was arrested upon the
complaint of the commissioner charging him with the making
of false entries in the books of the bank and in the report to
the commissioner. He was informed against by the district
attorney, and was charged (1) with making false entries in
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5] AUGUST TERM, 1909. 375
Ruth V. State, 140 Wis. 373.
the certificate register of the Bank of Arcadia, of which he
was cashier; (2) with making false entries in a ledger,,
falsely stating the amount due to the Bank of Arcadia from
the Second National Bank of Winona, Minnesota; (3) tdth
making false entries in the report of the bank of which he
was cashier to the state commissioner of banking regarding
the amount "Due from banks" and the amount due on "Time
certificates of deposit." The defendant demurred to the in-
formation for the reason that the three coimts were improp-
erly joined. The court overruled the demurrer. The de-
fendant moved the court that the state be required to elect
upon which count it would proceed to try the defendant.
This motion was denied, and the defendant was tried on the
charges as preferred in the information.
The register of certificates of deposits, some certificates of
deposit^ some pages of the cash book, and other records of the
Bank of Arcadia, and two statements of the relation of the
Bank of Winona to the Bank of Arcadia, which had been pre-
pared by the bank and whicli were identified by the cashier of
the Bank of Winona, were introduced in evidence. An ex-
pert who had spent some twelve days examining the books of
the Bank of Arcadia gave evidence that there had been a dif-
ference between the books of the two banks for several years,
and pointed out the entries in the books of the Bank of Ar-
cadia or the failure to make entries of transactions and the
other means by which tliese differences had been concealed.
The evidence of this witness and of others tended to show
that the entries made regarding the amounts due from the
Bank of Winona to the Bank of Arcadia were not correct,
and that the amount given in the report of the defendant to
the commissioner of banking as to the amount of money due
from the bank on time certificates of deposits was about
$2,000 less than was the fact The practice of the bank and
the authority of the cashier in the matter of the books of the
bank was put in evidence to establish defendant's responsi-
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376 SUPREME COURT OF WISCONSIN. [Oct.
Rath V. State, 140 Wis. 373.
bility for incorrect statements regarding the bank's affairs
and for false entries in the books of the Bank of Arcadia. At
the conclusion of the evidence the court took from the jury
the consideration of the second count in the information^ on
the groimd that the evidence would not sustain a conviction
on this count
In submitting the case to the jury the court, after reading
to them the third count in the information, instructed them :
^'It is for you to determine under all of the evidence in the
case whether or not there are any false statements or false
entries in reference to the resources and liabilities of the
bank • • . contained in such report, and whether or not such
report contains any false statements or false entries with ref-
erence to any of the books of such banf
The jury returned a verdict finding the defendant not
guilty on the first count, but guilty on the third count. The
case is now before this court for review.
John F. Doherty and Oeo. W. Bwnge, for the plaintiff in
error.
For the defendant in error there was a brief by the At-
tomey General, A. C. Titus^ assistant attorney general, and
E. F. Hensel, of counsel, and oral argument by Mr. Titus
and Mr. HenseL
SiEBECKEB, J, The plaintiff in error alleges that the re-
fusal of the court at the beginning of the trial to compel the
district attorney to elect on which count of the information
he would prosecute the case operated to his prejudice. The
three counts of the information charged the defendant with
making false entries in the books of the bank and with mak-
ing a false report to the commissioner of banking. It is
apparent that all of the offenses alleged in the three counts
of the information pertained to alleged false entries in the
bank books respecting transactions with other banks and with
reference to outstanding time pertificates. It is alleged that
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5J AUGUST TEEM, 1909. 377
Ruth V. State, 140 Wis. 373.
these transactions were violations of the provisions of sec. 17,
subch. II, ch. 234, Laws of 1903, which makes it an offense
if "any banker, oflScer, director or employee of any bank
. . . shall wilfully and knowingly subscribe to or make, or
cause to be made, any false statement or false entry in the
books of any bank, or mutual savings bank, .... or shall
knowingly makei, state, or publish any false report or state-
ment of such bank, or mutual savings bank.'' The different
ooimts of the information aU relate to false book entries and
to the report to the commissioner of banking based thereon.
The matter of requiring prosecuting officers in criminal cases
to elect on what counts of an information they will prosecute
the cause is deemed to be very much in the discretion of the
trial court It was no error to join the three counts in one
information. The separate alleged offenses referred to false
entries in the bank books and the report to the commissioner
of banking, and pertained to acts of the defendant in making
or causing a series of false book entries to be made for the
purpose of deceiving others as to the true state of the bank's
acooimts and financial condition, and falsely reporting there-
on to the commissioner of banking. These matters arose out
of the transactions and acts of the defendant pertaining to
his administration of the bank's business. Under such cir-
cumstances it was proper to charge the defendant with the
different offenses arising out of these transactions in the same
information and to proceed to trial on all of them. Such a
proceeding in no way deprived the defendant of any rights,
nor did it put him at a disadvantage in making his defense.
This course of procedure is abundantly approved in the ad-
judications of this court State v. Ourwmer, 22 Wis. 441 ;
MaHin r. State, 79 Wis. 165, 48 N. W. 119 ; GolbeH v. St^Ue,
125 Wis, 423, 432, 104 N. W, 61. See, also. Bishop, New
Grim. Proc. §§ 422-444.
The court discharged the defendant as to the second count
and no further consideration need be given it
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378 SUPKEME COURT OF WISCONSIN. [Oct.
Ruth V. State, 140 Wis. 373.
It is urged by the accused that the court committed pre-
judicial error in admitting the evidence of the experts re-
specting the state of the account between the Arcadia and
Winona banks and the condition of the accounts of the Ar-
cadia bank. The claim is that these experts were permitted
to testify that items of book entries were shown to be incor-
rect by means of summary statements and tables which they
had taken and made from the book accounts of the books of
both banks, without introducing in evidence all of these books
and the entries on which such statements were based, and
without producing any evidence tending to show that the book
entries and accounts of the Winona bank were correct and
true. The practice of permitting expert accountants to ex-
amine long book accounts and to give in summary form the
results thereof for the information of the court and jury is
approved as practical and proper in the trial of causes in-
volving the examination of long book accounts. A proper ad-
ministration, of course, requires that the opposing party shall
be afforded the time and opportunity to test the correctness
of the evidence, and for this purpose to have access to the
books and the use of them for the purposes of cross-examina-
tion. In so far as this practice was adopted in the case, we
find nothing in the record showing that the evidence of the
experts on this subject was improper. The claim that the
failure to offer in evidence all of the account books of the
Arcadia bank which was covered by this evidence operated to
defendant's prejudice is not shown, for it appears that all
such books were brought into court, were identified, and were
accessible to the defendant and his attorney.
It appears from the evidence of the experts that the Ar-
cadia bank books disclose the fact that the defendant inserted
in his report to the commissioner of banking an incorrect and
false sum as the amount due from the Winona bank. It is
contended that this evidence of the experts also included a
statement that the books of the Winona bank show that the
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5] AUGUST TERM, 1909. 379'
Ruth ▼. State, 140 Wis. 373.
defendant falsified book entries and his report of the amount
due from other banks, that there is no evidence of the con-
tents of such books or of their correctness, and that the jury
may have found the defendant guilty upon this evidence.
The inquiry arises whether such evidence could operate to the
prejudice of the defendant. We conclude that the defendant
could not have been prejudicially affected thereby, because
it appears conclusively from the record, aside from the ex-
pert's evidence in the case, that he knowingly made the false
report as charged in the third count of the indictment of
which he was found guilty by the jury. It is established by
the defendant's evidence that the bank's ledger accounts did
not correctly state the amount due from the Winona bank on
December 3, 1907, the date when the defendant reported the
condition of his bank to the commissioner of banking. He
testifies that he knew that these ledger accounts were incor-
rect, in that the sum due from the Winona bank, as there
stated, exceeded the actual amount, and that the amount re-
ported to the commissioner of banking as due from other
banks was based on this incorrect statement. This state of
the evidence shows that the statements of the experts were
simply corroborative of defendant's admitted knowledge of
the falsity of the book entries and of the report of Decem-
ber 3, 1907. The expert evidence so received could not under
such circumstances operate to prejudice the defendant in any
way, for he raised no issue as to these facts, and the inference
of guilt from such undisputed facts was left to the determina-
tion of the jury.
It is furthermore contended that the verdict cannot stand
because the element of the offense charged in the third count
respecting the falsification of the report as to outstanding
time certificates is not sustained by evidence, and because the
jury in their verdict found defendant not guilty of wilfully
falsifying the books and the report in this respect by their
verdict on the first count in the information. The third count
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380 SUPREME COURT OF WISCONSHST. [Oct.
Ruth V. State, 140 Wia 373.
charges the defendant with ihe oflFens© of making a false re-
port to the commissioner of banking and specifies that it was
false in two respects, namely, in falsifying the items re-
specting (1) the amount due from other banks, and (2) the
amount of the outstanding time certificates. The argument
is that, since these two items are embraced in the charge, a
verdict of guilty thereof cannot stand unless the proof shows
that the report was falsely niade as to both items. We do not
find the claim well founded. True, the offense of falsifying
the report is alleged to have been in the two particulars speci-
fied, but a finding that it was made wilfully false with intent
to deceive in one of the specified ways would establish the
offense of making a false report • It seems obvious that a
falsification of the report as to one item constitutes a viola-
tion of the law under the alleged charge independently of the
other violation specified in the information- The claim that
it cannot be known whether the jury agreed to a verdict of
guilty for falsely reporting the amount due from other banks
is not to be indulged in view of their verdict that he was not
guilty under tJie first count This establishes aflSrmatively
that their verdict of guilty on the third count must be based
on other grounds and that it could only be that he made a
false report of the amount due from other banks. Further-
more, it is presumed that the verdict of a jury rests upon the
facts established by the evidence in the case. We are of the
opinion that the verdict of guilty must be held to be an agree-
ment of the jury that the defendant falsely and feloniously
reported the amount due from other banks and it should
stand.
The instructions of the court are assailed as erroneous for
the reason that the court did not restrict the jury in agreeing
upon their verdict upon the third count in the information to
the offense embraced therein. The court read to the jury this
charge in the information, and then stated to them :
"You have heard what it [the information] contains, and
you have also had offered before you in evidence the report
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26] AUGUST TERM, 1909. 381
Malueg V. Hatten L. Co. 140 Wis. 381.
itself, and it is for you to determine under all of the evidence
in this case whether or not there are any false statements or
false entries in reference to the resources and liabilities of
the bank . . . contained in such report^ and whether or not
such report contains any false statements or false entries with
reference to any of the books of such bank."
Though the court used the words "any false statements or
false entries" in speaking of the book entries and the re-
sources and liabilities, it must be presumed that the jury ap-
plied this language in view of what immediately preceded,
namdy, that the prosecution was for falsifying the report in
the two respects alleged in the information just read to them.
This correctly informed them of the items embraced by the
court in this general reference to any false statements or en-
tries embraced in defendant's report. The instruction was
therefore sufficiently restrictive to guide the jury in their
deliberations and was not prejudicial to the accused.
We find nothing in the record showing any error affecting
the substantial rights of the defendant to his prejudice and
calling for a reversal of the judgment
By the Court. — Judgment affirmed.
Malueg and another, Respondents, vs. Hatten Lumbeb
Company, Appellant
Beptemher 18 — Octol>er 26, 1909.
Contracts: Breach: Measure of damages: Sales: Partiat delivery:
Payment: Waiver of damages: Termination of contract: 8u}>se'
quent delivery: Market price.
1. A person may, at law, breach his contract with another and be
liable only to respond to that otber for such legal damages as
will remedy the loss to him.
2. The legal damages for breach of contract are such as may fairly
and reasonably be considered to be the natural and proximate
result of the breach and, In the light of the circumstances
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382 SUPREME COUET OF WISCONSIN. [Oct.
Malueg V. Hatten L. Co. 140 Wis. 381.
known, actually or constructively, to both parties at the time of
such making, as having been then in their mutual contempla-
tion as the probable result of such breach.
3. The rights of parties as regards a breach of contract become
fixed at the time the breach occurs.
4. If a breach of contract consists of failure to deliver, upon a sale
agreement, personal property at a specified time, there being
no special circumstances, known to both parties at the time of
making the agreement, varying the general rule, the damage
recoverable is the difference, at the time of the breach and at
the agreed place of delivery, between the market value of the
property and the contract price, with legal interest from the
time of the breach.
5: In case of an action for damages for breach of contract, in the
circumstances mentioned in No. 4, in the absence of evidence
that the market value of the property at the time and place
of delivery agreed upon, exceeded the contract price, no more
than nominal damages are recoverable.
6. In case of partial delivery of property, in the circumstances men-
tioned in No. 4, and payment therefor after the breach without
objection and with knowledge of the facts, the agreement pro-
viding for payment as fast as deliveries are made, such circum-
stances do not, of themselves, waive any claim for damages for
such breach.
7. In case of the breach of contract in the circumstances stated in
the foregoing, and a claim thereafter upon the side of the ex-
ecutory vendee that he is legally entitled upon the contract to
the balance of the property, and insistence upon the other that
he is under no such obligation, and delivery of the balance of
the property pursuant to a mutual understanding for payment
therefor at the market price at the time of delivery, in case of
the vendee not being entitled as he claims, the vendor should
be paid such market price.
[Syllabus by Marshall, J.]
Appeal from a judgment of the circuit court for Shawano
<x)untv: John GtOodland, Circuit Judge. Affii-med, '
Action to reoovier on a contract for a claimed balance for
sawlogs sold defendant by plaintiffs at a stipulated price.
Defendant answered putting in issue plaintiffs' claim as to
the agreed price for the logs and as to there being a balance
due. It pleaded as a defense that, for the purpose of sup-
plying its mill with a stock of sawlogs for the manufacturing
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26] AUGUST TERM, 1909. 383
Malueg V. Hatten L. Co. 140 Wis. 381.
season of 1906, it contracted in writing with plaimtiffs to cut
into sawlogs and deliver to it at a specified place, during the
winter of 1905 and 1906, all the sawlog timber on certain
specified land at a price per thousand feet named, final pay-
ment therefor to be made upon all the Ic^ being scaled and
full performance by plaintiffs; that in partial performance
276,230 feet of logs wero duly delivered, scaled, and paid for
during the winter of 1906; that notwithstanding defendant
was ready and willing to accept and pay for the balance of
the sawlogs agreed to be delivered, plaintiffs neglected to
make delivery thereof during the time limited in the con-
tract; that thereupon such time was extended to include the
next logging season; and that plaintiffs have received full
payment for all logs delivered.
Defendant, for a counterclaim, pleaded the aforesaid facts
and that the amount of timber which plaintiffs failed to
deliver during the logging season of 1906 and 1907 was
191,880 feet of short and 11,310 feet of long hemlock logs, to
its damage in the sum of $406.38. The counterclaim was
duly replied to. Upon the trial plaintiffs claimed that the
written contract did not cover the operations of the season of
1906 and 1907; that during the season they delivered to de-
fendant the sawlogs it claimed should have been delivered
during the previous season, but made such delivery under an
oral agreement increasing the price for the logs $2 per thou-
sand feet Such increase coincided with the amount claimed
in the complaint
There was proof that, at the close of the first logging
season, defendant settled with plaintiffs for all logs delivered
during such season, without objection because of the contract
not having been fully performed, and that the price claimed
by plaintiffs for logs delivered the second season was the going
price thereof and the amount defendant verbally agreed to
pay therefor.
There was evidence on the part of defendant that, before
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384 SUPREME COURT OF WISCONSIN. [Oct.
Malueg ▼. Hatten L. Co. 140 Wis. 381.
the logging operations commenced the second season, it gave
plaintiffs written notice that it claimed the contract covered
the balance of the timber, but later promised that^ if it should
turn out otherwise, it would pay the going price.
At the close of the evidence the court^ on motion, directed
a verdict for plaintiffs upon their theory of the case; holding
that by paying in full at the close of the first season without
objection, notwithstanding the contract had been breached aa
claimed in the answer, such breach was waived and the con-
tract extinguished; and that the agreement to pay the price
for the logs delivered the second season, in case the contract
as to such season was of no effect^ entitled plaintiffs to re-
cover. Judgment was entered accordingly.
-B. N. Van Doren, for the appellant
P. J. Winter, for the respondents.
Mabshall, J. This case is ruled by a few familiar legal
principles.
Keeping in mind the conceded fact that respondents
breached the contract in question by neglecting to deliver to-
appellant all the saw timber standing upon the land manu-
factured into sawlogs, properly scaled, by the close of the-
logging season of 1906, the first principle to be mentioned
is that a person, at law, may of right breach his contract with
another and subject himself to the burden of such damages
for the benefit of such other as may be necessary to remedy
the breach. Ward v. Am. H. F. Co. 119 Wis. 12, 96 N. W.
388.
It follows that, after the breach in question, if respondents^
saw fit, as it seems they did, to stand upon their legal rights
and not recognize the contract as binding them to deliver the
balance of the timber left at the dose of the winter of 1906,
it was competent for them to do so, leaving appellant, as ita
only recourse to remedy the matter, enforcement of a causo
of action for damages^ if any there were.
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26] AUGUST TERM, 1909. 385
Malueg ▼. Hatten L. Co. 140 Wis. 381.
The next legal principle applicable to the case, in the log-
ical order of things, is this very familiar one : The damages
recoverable for breach of contract are such as may fairly and
reasonably be considered to be the natural and proximate re-
sult thereof and which, in the light of circumstances known,
actually or constructively, to both parties at the time of
making the contract, may reasonably be supposed to have
been in their mutual contemplation as the probable result of
such breach. Hadley v. Baxendale, 9 Exch. 341 ; Ovetzhow
Bros. Co. V. A. H. Andrews & Co. 92 Wis. 214, 66 N. W.
119; Qrossv. HecheH, 120 Wis. 314, 321, 97 N. W. 952;
Andersor^ v. Savoy, 137 Wis. 44, 48, 118 N. W. 217.
In connection with the last foregoing rule is the one that,
in case of a breach of contract, the rights of the parties are
regarded as fixed at the time thereof, so, if such breach con-
sists in failure to deliver upon a sale contract personal prop-
erty to be paid for after delivery ; there being, as in this case,
no special circumstances rendering more than ordinary dam-
ages probably within the contemplation of the parties at
the time of making the contract as likely to occur from such
failure, the limit of legal . damages is the difference, at the
time of the breach, between the market value of the property
at the time and place of delivery and the price the executory
purdiaser agreed to pay therefor with legal interest from the
date of the breach. Richardson v. Chynoweth, 26 Wis. 656;
nai V. CUpman, 59 Wis. 211, 18 K W. 160; Muenchow v.
Roberts, 77 Wis. 520, 522, 46 K W. 802; Kelley,M. & Co.
V. La Crosse C. Co. 120 Wis. 84, 97 N. W. 674; Anderson v.
Savoy, 137 Wis. 44, 48, 118 N. W. 217.
So if appellant suffered any recoverable loss by failure to
deliver the timber as agreed upon, it consists of the difference
between what the market value of the undelivered timber
manufactured into sawlogs was at the time when and place
where the same should have been delivered and the contract
price thereof. What such logs were worth in the market the
Vol. 140—25
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386 SUPREME COUBT OF WISCONSIN [Oct.
Malueg V. Hatten L, Co. 140 Wis. 381.
succeeding winter, is entirely immaterial on. this branch of
the case.
In. the light of the foregoing, since, as the fact is, there
was no proof offered or received tending to show that the
market value of such logs as respondents agreed to deliver at
the time for the delivery, exceeded the contract price, there
was an entire failure of proof to maintain appellant's coun-
terclaim. So respondents were entitled to recover, as they
did, the undisputed market value of the logs delivered in the
winter of 1906 and 1907. Breach of contract without any
legal damages obviously gives no right of recovery. Main v.
Procknow, 131 Wis. 279, 111 K W. 508.
It is claimed on the part of respondents that making final
payment for all logs* delivered, after the time fixed in the
writing for performance, without making any objection be-
cause of the breach, notwithstanding it had full knowledge
of the facts, constituted a waiver of any further rights under
the contract either for the balance of the logs or damages.
There having been no pretense at the time payment was made
that the contract had been fully performed, the mere pay-
ment for the logs deliviered, keeping silent as to any further
claim under the contract, did not of itself waive anything.
The transaction was strictly according to the terms of the
writing. It contemplated payment for logs from time to
time as they were delivered and scaled. One may always
accept and pay at the contract rate for partial performance,
as in this case, without waiving, by such circumstance alone,
his right to redress for failure of full performance. Charley
V. Potthoff, 118 Wis. 258, 95 N. W. 124. Such a case must
not be confused with those where articles are delivered in
performance of an executory contract of sale as and for the
amount and kind agreed upon and are received and retained
with knowledge, or reasonable means of knowledge, that they
do not fully answer the calls of the agreement, and without
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2Q'] AUGUST TERM, 1909. 387
Malueg V. Hatten L. Co. HO Wis. 381.
notifying the vendor within a reasonable time that the ar-
ticles are not accepted as full performance.
Notwithstanding the contract was not terminated by pay-
ment for liie logs delivered under the circumstances stated,
it does not follow that appellant had any further rights under
it It had no right to damages for the breach unless it suf-
fered damages and none were established; as appellant evi-
dently appreciated and conceded at the close of the triaL It
had no legal right to further deliveries of logs after the close
of the winter of 1906. The evidence is substantially all one
way, as the trial court held, that the market value of the logs
delivered the second season was as claimed by respondents
and that if they were entitled to recover on that basis the
amount due them was as found in the directed verdict The
evidence is all one way, that respondents refused to recognize
the contract which, by its terms, terminated at the close of
the winter of 1906, as binding tliem to let appellant have the
logs delivered the second season. The latter conceded upon
the trial that it promised to pay the former the market price
for logs the second season if the contract did not entitle it to
them at the price named therein. The controversy between
the parties at the commencement and during the early part
of the second season, as the evidence conclusively shows and
the court found, was not over the market price or the amount
respondents should have for the logs in the absence of any
writing governing the matter, but over whether respondents
were bound to deliver the logs under the writing of 1906.
So the case really turns, as the trial court found, on
whether the writing was effective as to the second season
notwithstanding the breach aforesaid and respondents' in-
sistence thereon. On that question the decision of the trial
<5ourt was right though the grounds stated therefor are not
altogether approved. Further performance of the contract
on respondents' part was not waived by appellant by the
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388 SUPREME COURT OF WISCONSIN. [Oct.
O'Connor v. Queen Ins. Co. 140 Wis. 388.
occiirrences in the spring of 1907 before mentioned It
terminated by its own limitations, subject to appellant'*
right to damages, if any were suffered, because of there being
but partial performance and subject to mutual recognition,
in case of there being such, of its further eflBcacy. Therefore
the judgment must be afBrmed.
By the Court. — So ordered.
CCoNNOE, Respondent, vs. Queen Insubangs Company of
America, Appellant.
October 5~-Octoher 26, 1909.
Fire insurance: What constitutes **ftre:** Cause of U>ss: Court and
jury.
1. A fire built in a furnace with unsuitable material, -which became
in a measure uncontrollable and developed excessive and ex-
traordinary heat, so intense in the chimney as to char wood-
work, wall paper, and furniture, and which caused volumes of
smoke and soot to escape through the registers and injure per-
sonal property in the house, was a "hostile" fire although there
was no ignition outside of the furnace; and the damage to the
personal property was "direct loss or damage by fire" within
the meaning of the Wisconsin standard fire insurance policy.
Marshall^ J., dissents.
2. The question whether damage to insured property was caused by
fire is ordinarily one for the jury, but its determination by the
court is not error where the facts are practically undisputed.
Appeal from a judgment of the municipal court of Outa-
gamie county : T. H. Ryan, Judge. Affirmed.
Action upon a fire insurance policy. The servant of
plaintiff built a fire in the furnace with paper and cannel
coal, not used or intended to be used for such purpose, which
fire developed within a few moments to such a degree of fury
as to fill the house with great volumes of smoke, soot, and
excessive and intense heat, and damage the personal property
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26] AUGUST TERM, 1909. 389
0'Ck)nnor v. Queen Ins. Co. 140 Wis. 388.
tlierein to the amount as found by the jury $562. The only
question submitted to the jury was the amount of damages,
and the court directed a verdict for the plaintiff for the
amount of damages found by the jury.. Judgment was
entered for plaintiff accordingly, from which this appeal was
taken.
For the appellant there was a brief by D. 0. Classon, at-
torney, and Bates, Harding, Edgerton & Bates, of counsel,
and oral argument by Mr. Classon.
Francis S. Bradford, for the respondent
The following opinion was filed October 26, 1909 :
Kebwtn, J. The policy in this cas^ being the Wisconsin
standard form, insured the plaintiff "against all direct loss
and damage by fire;" and the controversy is as to whether
the loss and damage was caused by anything insured against
by the defendant company. The question arises whether the
fire which caused the damage was a fire within the meaning
•of the policy. The plaintiff lived in a rented house heated by
a furnace. His servant built a fire in the furnace of material
not for use therein or intended so to be used, and of suck a
highly inflammable character as to cause intense heat and
great volimies of smoke to escape through the registers
leading into the rooms and greatly damage plaintiff's prop-
-erty. The heat was so intense as to char and injure fur-
niture, and the great volumes of smoke and soot greatly
injured the furnishings and personal property of the plaintiff.
It does not appear from the evidence that there was any
ignition outside of the furnace, although the fire was so
intense as to overheat the chimney and flues and char furni-
ture in the rooms. The evidence shows that the chimney was
so hot it seemed as though it was on fire; that the fire was
burning fiercely in the furnace; around the mop boards was
burned and the mop boards blistered ; the wall paper charred
and burned and the chimney cracked from the excessive heat.
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390 SUPREME COURT OF WISCONSIN. [Oct.
O'Connor v. Queen Ins. Co. 140 Wia. 388.
It is the contention of appellant that the damage occasioned
by heat, smoke, and soot is not covered by the policy where
the fire is confined within the furnace. This position in-
volves the construction of the words of the policy, "direct
loss or damage by fire," and leads to a consideration of what
fires are within the contemplation of the policy.
No limitation is placed upon the word "fire" by the
language of the policy itself, but it is said that "contracts of
insurance are to be construed according to the sense and
meaning of the terms which the parties have used, and, if
they are clear and unambiguous, the terms are to be taken
and understood in their plain, ordinary, and proper sense."
No doubt this is the general rule, but it must also be remem-
bered in applying the rule that this and other courts have
construed contracts of insurance favorably to the insured.
Karow v. Continental Ins. Co. 57 Wis. 66, 15 N. W. 27 ;
Brady v. North Western Ins. Co. 11 Mich. 425 ; May, Ins.
(3d ed.) § 402 ; Peiers v. Warren Ins. Co. 14 Pet. 99.
Appellant insists that a fire confined within the limits of
a furnace, although producing damage by smoke and heat, is
not a fire within the meaning of the policy in question, and
relies mainly upon the case of Austin^ v. Drew, 4 Camp. 360.
In that case the plaintiff was the owner of a sugar factory
several stories high with pans on the ground floor for boiling
sugar and a stove for heating. A flue extended to the top of
the building with registers on each floor connecting with the
flue to introduce heat Because of the negligence of a servant
in not opening a register at the top of the flue, or chimney,
used to shut in the heat during the night, the smoke, sparks,
and heat from the stove were intercepted and, instead of
escaping through the top of the flue, were forced into the
rooms, in consequence of which the sugar was damaged. The
flames were confined within the stove and flue and no actual
ignition took place outride thereof, and it was held that the
loss was not covered by the policy. The Lord Chief Justice
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26J AUGUST TERM, 1909. 391
O'Connor v. Queen Ins. Ck). 140 Wis. 388.
said that there was no more fire than always existed when
the manufacture was going on, and which continued to bum
without any excess. The case seems to turn upon the point
that the fire was the usual and ordinary fire, never excessive,
and always confined within its proper limits. We shall
briefly refer to other cases cited by appellant on this point
In German Am. Ins. Co. v. Hyman, 42 Colo. 156, 16 L. K.
A. N. 8. 77, the loss was caused by an explosion produced by
lighting a match, where the policT* contained a provision that
the insurers should not be liable for loss by explosion unless
fire ensues, and in that event for the damage by fire only.
Samuels v. Continental Ins. Co. 2 Pa. Dist Rep. 397, was a
dairn for damages caused by smoke and soot from a lamp
whose flame flared up above the lamp. United L., F. & M.
Ins. Co. V. Foote, 22 Ohio St 340, was a case of explosion
excepted from the policy, and it was held that the fire was
caused by the explosion ; therefore the loss was occasioned by
•explosion. Benshaw v. Fireman s Ins. Co. 33 Mo. App. 394,
is also an explosion case caused by ignition from a burning
gas jet, and it was held that where the explosion is the direct
result of the antecedent fire the policy covers it, but where tlie
explosion is not occasioned by the fire there is no liability for
the result of the explosion. In the one case the fire causes
the explosion, and in the otlier the explosion causes the fire.
Briggs v. North A. & M. Ins. Co. 53 K". Y. 446, is a case
where the explosion was before the fire and not caused by the
fire. Transatlantic F. Ins. Co. v. Dorsey, 66 Md. 70, was a
case of explosion, and the main question was whether the
fire was the direct cause of the explosion, 1 Wood on Fire In-
surance (2d ed.) sec 103, it is true lays down the general
rule that no liability arises where the fire is confined within
the limits of the agencies employed, referring to the case of
Austin V. Drew, 4 Camp. 360, with the observation that the
doctrine of that case had been considerably misconceived by
courts and text-writera Gibbons v. German Ins. d Sav. Inst,
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392 SUPREME COURT OF WISCONSIN. [Oct.
O'Connor v. Queen Ins. Ck). 140 Wia. 388.
30 111. App. 263, was a case of damage caused by the escape
of steam. Case v. Hartford F. Ins. Co. 13 111. 676, discusses
Austin V. Drew, supra, and discards the idea that there can
be no loss by fire without actual ignition. MiUaudon v. New
Orleans Ins. Co. 4 La, Ann. 16, is a case where the damage
was caused by the explosion of a steam boiler; while in
Waters v. Merchants' L. Ins. Co. 11 Pet. 213, an explosion
of gunpowder is held to be a loss .by fire where the thing
exploded was on fire. American. T. Co. v. German F. Ins.
Co. 74 Md. 25, 21 Atl. 663, was a case of overheated boiler
owing to the absence of wate^*.' Austin v. Drew, supra, is
referred to, and it was held damage not covered by the policy.
Cannon v. Phoenix Ins. Co. 110 Ga. 663, 35 S. E. 775, is a
case where the fire was an ordinary fire in a stove. The fire
was what is termed in law books a "friendly*' and not a
"hostile" fire. Jn this case the stovepipe became disatranged
and smoke and soot escaped, together with the water used in
cooling the ceiling causing the damage. Austin v. Drew,'*
supra, is cited in support of the opinion.
It will be seen from the foregoing cases relied upon by
appellant that the cases in this country in any way tending
to support appellant's contention rest upon the doctrine of
Austin V. Drew, which has not been extended, but limited to
the particular facts of the case, and the doctrine enunciated
therein criticised in some well-considered cases. We shall
briefly refer to some of the authorities. At page 929, § 402,
Mr. May in his work on Insurance discusses the doctrine laid
down in Austin v. Drew and concludes that if the doctrine in
that case is intended to go farther than the facts of the case
it has been deemed not to be good law by every high au-
thority. In Scripture v. Lowell M. F. Ins. Co. 10 Oush. 366,
the doctrine of Austin v. Drew is explained, and the court
says that lack of study of the case by courts and text-vmters
has caused it to be misapplied, and refers to the language of
the Lord Chief Justice in Austin v. Drew to the effect that
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26] AUGUST TERM, 1909. 393
O'Connor v. Queen Ins. Co. 140 Wis. 388.
the fire was an ordinary one and no more than always existed
when the manufacturing was going on. Singleton v. Phenix
Ins. Co. 132 N. Y. 298, 30 N. E. 839, is a case where a boat
was loaded with quicklime in barrels. The boat was found
to be on fire through the slacking of the lime. It was towed
into the riv^r and sunk to prevent total destruction. It was
claimed that some water in the boat must have caused the
slacking of the lime. Held, that the losd was by fire within
the meaning of the policy. Further intimated that it may
not be necessary to show actual ignition or combustion to
^tablish a loss by fire. In Watf v. Abington Mvi. F. Ins. Co.
166 Mass. 67, 43 K E. 1032, fire in the stove ignited the
soot in the chinmey, and th^ smoke and soot fijpm the burn-
ing chimney escaped into the room and damaged property.
Held, that such damage was covered by the policy insuring
against all loss or damage by fire. The case seems to have
turned upon the fact that the fire in the chimney was a
^liostile^' fire; therefore the damage caused by such fire was
covered by the policy. In Lynn G. & E. Co. v. Meriden F.
Ins. Co. 158 Mass. 670, 35 N. E. 690, it was held under an
insurance policy against loss or damage by fire that damage
to machinery in a part of the building not reached by
the fire, caused by short circuiting of electric current, was
covered by the policy. It was further held that the fire was
the direct and proximate cause of the damage \mder the
words of the policy, "direct and proximate causa" In
California Ins. Co. v. Union C. Co. 133 U. S. 387, 10
Sup. Ct 366, the words of a policy, "direct loss or damage
by fire," are defined to mean loss or damage occurring di-
rectly from fire as the destroying agency in contradistinction
to the remoteness of fire as such agency. In Oerman Am.
Ins. Co. V. Eyman, 42 Colo. 166, 94 Pac 27, under an in-
surance policy providing that the insurer would not be liable
for loss by explosion, it was held that if the fire precedes the
explosion and the latter is an incident of the former and
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39 i SUPREME COURT OF WISCONSIN. [Oct.
O^Connor v. Queen Ins. Co. 140 WIb. 388.
caused by it, the insured may recover for his entire loss, but
if the explosion precedes tbe fire and is not caused by it the
insured can only recover for the loss by fire. In Bussell v.
German F. Ins. Co. 100 Minn. 528, 111 N. W. 403, it is
held that to render a fire the immediate or proximate cause
of the loss or damage it is not necessary that any part of the
insured property actually ignited or was consumed by fire.
In Ermentrout v. Girard F. & M. Ins. Co. 63 Minn. 305^
65 N. W. 635, the action was on a policy insuring plaintiff
"against all direct loss or damage by fire," and the policy
further provided that if the building fell "except as result
of fire" the insurance on the building should immediately
cease. There was evidence tending to prove that a building
adjacent to the one insured caught fire and was partially
consumed, and as a result of such fire fell, carrying down
with it a partition wall and a part of the insured building.
Held, that the fall of the insured building was "the result of
fire" and "a direct loss or damage by fire," although no part
of it ignited or was consumed by fire. Cameron in his work
on the Law of Fire Insurance in Canada, pag^ 51, discusses
the effect of the word "direct" in policies providing against
"direct loss or damage by fire," and says that the word has
no significance or value, and whether used or not the fire
must be the proximate cause of the loss or damage. See,
also, Richards, Ins. Law (3d ed.) § 231, where it is said
that the word "direct" in a policy means immediate or proxi-
mate as distinguished from remote, but that the proximate
results of fire may include other things than combustion, as^
for example, the resulting fall of a building, injuries to
insured property by water, loss of goods by theft, exposure
of goods during fire. See, also, Elliott, Ins. § 221, and
Clement, Fire Ins. as a Valid Contract, 84-87.
The foregoing cases, we think, fully show that Austin v.
Drew, 4 Camp. 360, is not authority against plaintiff here.
There the fire was under control, not excessive, and suitable
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26] AUGUST TERM, 1909. 395^
O'Connor v. Queen Ins. Co. 140 Wis. 388.
and proper for the purpose intended. It was, in the lan-
guage of the books, a "friendly" and not a "hostile" fire. In
the case before us the fire was extraordinary and unusual,
unsuitable for the purpose intended, and in a measure un-
controllable, besides being inherently dangerous because of
the unsuitable material used. Such a fire was, we think, a
"hostile" fire and within the contemplation of the policy.
Ordinarily the question in such cases is for the jury. New
York £ B. D. E. Co. v. Traders' & M. Ins. Co. 132 Mass.
377; New York & B. D. E. Co. v. Traders' & M. Ins. Co.
135 Mass. 221; Ridiards, Ins. Law (3d ed.) § 231. But in
this case the evidence being practically undisputed, we think
no error was committed in directing a verdict for the plaintiff.
By the Court. — The judgment of the court below is af-
firmed.
The following opinion was filed November 13, 1909 :
Marshai^l, J. (dissenting). I do not understand either
the facts of this case or the law to be, in all respects, as
indicated in the court's opinion. The court's language would
indicate that, while there was no ignition outside the furnace
or its connections, there was considerable burning to the
extent of expelling volatile matter from paper, furniture,
and mop boards, so as to create on their surface charcoal.
"They were burned, charred, and blistered," is the language
used, "though there was no ignition outside of the furnace."
That language suggests that actual fire reached the injured
parts of the house and furnishings so as to cause burning.
I do not find that in the record. Here is all the record dis-
closes, substantially in the language of the plaintiff: In the
comer of the room around the raster on the second floor, it
was all burned, and the mop board blistered, and the wall
paper was charred and burned to a perfect brown, and around
Uie chimney was cracked in four or five places by the heat.
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396 SUPREME COURT OF WISCONSIN. [Oct.
O'Connor v. Queen Ins. Co. 140 Wis. 388.
I did not see where any furniture was burned. I suppose it
If as damaged by heat; by the heat affecting the coal smoke
which settled on the furniture. The heat seemed to make the
smoke oily. Nothing in the house was set on fire. I think
fire went up the registers by the way the wall paper looked
and the mop boards. There was no burning other than the
charring. There was no ignition except in the furnace. I do
not know whether there was merely heat or was flame in the
register. At the close of the plaintiff's evidence a question
was propounded to him, as if he had testified the chimney
was cracked, when he said he supposed that only the paper
on the chimney was cracked. There was other evidence, fully
corroborating that of plaintiff, that the fire was wholly con-
fined to the furnace and its connections ; that, at most^ heat
radiated therefrom with sufficient intensity to slightly char
and blister mop boards and paper around one register; and
that the chimney became so overheated as to cause the paper
on the outside of it to crack. The damage was wholly by the
radiated heat and there was no burning to the extent of
<jharring, except of a trifling nature. The damage, except as
to such trifling character, was caused by oily smoke whidi
escaped from the furnace and its connections and discolored
paper and furniture. That is the way I read the record.
Now the question is this: Is injury to the finish of a
building by the radiation of heat from the house-heating
furnace and its connections and escape therefrom of smoke,
xjaused by a negligent fire in the furnace, the injury being to
the extent of some slight charring and blistering of woodwork
and paper near one or more of such connections, and cracking
of paper and discoforation thereof and of furniture by the
smoke, "direct damage by fire^^^ within the meaning of the
policy ?
In solving the question suggested, other than to show ex-
^jlusion of the particular case from the hazard insured against,
it seems useless to refer to any case where there was actual
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26] AUGUST TERM, 1909. 397
0*CoDnor v. Queen Ins. Co. 140 Wis. 388.
fire, ignition, and burning followed by an explosion, or explo-
sion followed by fire, or fire outside its ordinary place, such
as a furnace or stove, or fire causing the building ignited, or
a part of it, to fall and injure another building, or fire caused
entirely outside a furnace or other ordinary and proper place,
thereby injuring insured property, or injury to one part of a
building from accidental fire in another outside of an or-
dinary place therefor.
None of such situations, in my judgment, have any bearing
on the case before us, and if used to show liability in the par-
ticular instance, only tend to confuse.
True, where there is a fire followed by an explosion causing
loss, the damage is the direct though not the nearest cause of
the loss. If it is the direct cause, in the sense of the result
reaching back by a chain of causation to the fire as the effi-
cient cause, it is the proximate cause in the sense the words
of the insurance contract "direct damage by fire" are used.
That is illustrated by United L., F. & M. Ins. Co. v. Facte,
22 Ohio St 340, and similar cases.
Where there is an explosion followed by a fire, the latter,
though the nearest, is not the direct^ in the sense of being the
proximate, causa That is illustrated by Transatlantic F.
Ins. Co. V. Dorsey, 66 Md. 70, and similar cases. In such
situations as the former, the fire and damage are mere inci-
dents of the explosion ; in the latter, the explosion and damage
are mere incidents of the fire. But, as before indicated,
neither situation, nor any of those suggested, it seems, has
any similarity to a case of damage caifsed by an excessive and
dangerous radiation of heat from a furnace and its connec-
tions, and escape of smoke and fire caused by the negligent
placing of an unusual fire therein, such damage consisting of
some trifling charring of a part of a structure, adjacent to
some of such connections, and discoloration of finishing and
furniture by smoke.
Precedents properly used are helpfuL Improperly used
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598 SUPREME COURT OF WISCONSIN. [Oct.
O'Connor v. Queen Ins. Co. 140 Wis. 388.
they are not. They may, and are quite likely to, be the very
opposite. If each case was decided by squaring it, as near as
might be, with some particular previously decided case, or
several of them, unmindful of the imderlying controlling
principles, with the humane leanings which characterize
judges, as well as others, in favor of the weak and humble,
and perhaps properly in cases of reasonable doubt, the human
inclination so admirable, would be liable to create doubts in
the mind where none need to exist, in fact, resulting in a de-
cision now and another then, and again another, and so on
ad infinitum, each on some more or less extreme view, and the
unwritten law would become as a kaleidoscope, presenting, as
handled, an endless variety of situations fitting, apparently,
with most delightful similarity, causes as they arise, leading
to results entirely out of harmony with that definiteness of
rule which dignifies the law as a science.
So it seems we must look to the precedents, many of which
are found in the opinion, not to see what is indicated in any
particular case under particular facts, but to discover the
logical basis of all — the underlying principle. Having dis-
covered that and tied firmly to it, we can proceed with con-
siderable certainty to a correct result Having started with
the basic member of our syllogism, we can proceed with
logical steps to an inevitable conclusion, with the certainty of
true logic.
What is the basic theory of the cases cited in the court's
opinion ? Though it seems not to have been kept clearly in
view in every instance; is it not that, the term of the policy
in question, "direct loss or damage by fire," excludes fire so
long as it is confined to its appropriate place, as a stove or
furnace, and contemplates fire as a producing cause ^cisting
outside of any such place. It is, seemingly, conceded that
those words do not mean a fire, so long as confined in its ap-
propriate place. So the proximate resulting loss must refer
to a proximate cause fire, and if, following back from the
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26] AUGUST TERM, 1909. 399
O'Connor v. Queen Ins. Co. 140 Wis. 388.
f onner, we must reach the fire in the stove before we find any
fire at all, how can we well say that the loss was proximately
caused by fire ? What is the logic of the numerous explosion
cases cited in the court's opinion? Is it not this? If fol-
lowing back, stop by step, from the injury we reach the explo-
sion as a mere link in a chain, starting with a fire which, had
it immediately caused the loss, would be within the field
covered by the policy, that there is responsibility of the
insurer; if, on the other hand, in tracing back to the real
origin of the loss, we pass the fire and reach'the explosion as
a producing cause, which is not. within the risk covered, then
the fire is a mere incidenj; or link in the chain of causation,
terminating with the explosion as the proximate cause of the
disturbance ; of the injury itself at the other end of the chain.
In substantially every one of the cases cited, and a multitude
that might be referred to, the proximate cause was fire of a
responsible character, as regards the insurance risks ; not fire
in a stove or a furnace, tliough, in many, there was a chain of
disturbances reaching therefrom to the disaster, as in the case
of the fire in Ermentrout v. G^irard F. & M, Ins. Co. 63 Minn.
305, 65 N. W. 635. In this case there was a fire in a
building of a character, within the terms of the insurance
policy, which so destroyed the building as to cause a wall
thereof to fall and injure the adjacent insured building.
Had the fire been wholly in a furnace, resulting in sudi over-
heating and such radiation of heat as to cause the wall to fall,
carrying down in part the adjacent building, I apprehend no
one would seriously have thought the loss was covered by the
policy, because in tracing the result back to find the proxi-
mate cause, it would not have been found to be within the
policy. With few exceptions, that test could safely be applied
to all the cases. It follows the logic of Austin v. Drew,
4 Camp. 360, which, in my judgment, has never been criti-
cised except as it has been misunderstood. It did not go on
the mere fact that the fire was a usual and so "a friendly
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400 SUPREME COURT OF WISCONSIN. [Oct.
O'Connor ▼. Queen Ins. Co. 140 Wis. 388.
fire," but upon the ground that the fire was in its proper place
and all the results were mere incidents thereof, t. e. the
proximate cause was the fire in the stove because there was
no fire elsewhere.
As so much is said about Avstin v. Drew, it may be well to
show just what the facts and the decision were. There was
an overheated stove, caused by negligent mismanagement of
it^ as in this case^ It matters not that the mismanagement
there was in producing overheating and causing smoke, heat,
and sparks to escape into the building, but without producing
any fire outside of the stove or its connections, by failure to
properly manipulate the register, and that substantially the
same results were produced here by mismanagement of the^
fire itself. The court now puts some stress on the fact that
GiBBS, C. J., said, in the opening part of the opinion, that
the fire itself was not unusuaL But that is not the gist of the
decision. It is that nothing outside the stove was, by fire-
outside thereof or otherwise, consumed. This language was^
used: "Nothing was consumed by fire. The plaintiff's loss
arose from the negligent management of the machinery"
(referring to the connections of the stove). While the judge
was pronouncing his opinion he was thus interrupted by a
juryman :
"If my servant by negligence sets my house afire, and it
is burnt down, I expect, my Lord, to be paid by the insurance
oflSce," etc
To which the Lord Chief Justice replied:
"And so you would, sir; but then there would be a fire,
whereas here there has been none. If there is a fire, it is no
answer that it was occasioned by the negligence or misconduct
of servants ; but in this case there was no fire except in the
stove and the flue, as there ought to have been, and the loss
was occasioned by the confinement of heat. Had the fire been
brought out of the flue, and anything had been burnt, the
company would have been liable. ..."
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26] AUGUST TERM, 1909. 401
O'Connor v. Queen Ins. Co. 140 Wig. 388.
Thus it will be seen that the real gist of the decision is in
the language, "Had the fire been brought out of the flue and
anything had been bumt> the company would have been
liable.^' The logic of that is this: Then there would have
been a fire within the calls of the policy, which would be
referred to as the proximate cause of the loss. To that extent
the doctrine of that case has not been criticised in any well
considered opinion, or by any text-vmter understandingly.
It should be noted that, in Austin v. Drew, actual ignition
outside the stove was not made a condition precedent to a
recovery, but fire outside was made such condition. There
might be fire outside and burning, in the most restricted
sense of the term, without ignition, and the policy would be
satisfied; but^ in case of burning without any fire outside,
biuming to the extent of mere charring produced by radiated
heat from the surface of the stove and its connections, then
the policy would not be satisfied. Where the attempt has
been made to extend the Drew Case so as to call for fire out-
side the stove and actual iffnition, it has been generally, and
properly, unsuccessful. If it has ever been criticised or lim-
ited so as to allow a recovery where there was no fire outside
the stove or furnace, and no burning, otherwise than a little
charring and discoloration by radiated heat from a stove and
its cwmections, or to allow a trifling injury of that kind to
draw to it and include a far greater damage, caused by mere
heating, without burning in any sense, and damage from
smoke, caused by fire inside the stove, I have been unable to
discover it, and the court has not been any more successful,
as indicated by the cases relied on*
Joyce on Insurance, at sec. 2796, citing numerous au-
thorities, adopts the rule of Austin v. Drew, as I have ex-
plained it, as regards all damages caused by overheating and
smoke produced wholly by fire, whether negligently handled
or not, in a place where it may properly be.
In 1 Wood on Fire Insurance (2d ed.) sec. 103, Austin v.
Vol. 140—26
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402 SUPREME COURT QF WISCONSIN. [Oct.
0*Ck>nnor v. Queen Ins. Co. 140 Wis. 388.
Drew is referred to, as to all such injuries as we hav# in this
case; this language being used:
"In order to bring such consequences within the risk, there
must be actual ignition outside of the agencies employed, not
purposely caused by the assured, and these, as a consequence
of such ignition, dehors the agencies."
It should be noted that while Mr. Wood says there must
be actual ignition outside of the usual agencies^ he does not,
necessarily, and I think does not in fact, mean ignition of the
insured property. He means no more than that there must
be actual fire outside of such agencies, and that sudi fire must
proximately cause the loss.
2 May on Insurance (4th ed.) § 402, inferentially criti-
cises the text in Wood upon the theory that it is to the effect
that actual ignition of property insured is a amdition prece-
dent to a recovery, in a case of this sort, and argues, frcwn
authority, that damage by fire is within the terms of an in-
surance policy containing language similar to the (me before
us, although there is no ignition of any property. covered by
the policy, illustrating by cases of actual fire which would be
within the risk in case of its immediately causing the damage,
and proximately did cause it without combustion of any part
of it, as where a fire originated outside a theater, heated its
walls, and set them on fire. Sohier v. Norwich F. Ins, Co.
11 Allen, 336. Damage by fire originating in the theater
was excepted from the policy. As we may well say, fire origi-
nating and kept in the house furnace was, by necessary im-
plication, excepted from the policy here*. It was because
there was fire outside the excepted zone, which reached the
tiieater and caused the damage, that the recovery was allowed.
Such illustrations, instead of condemning, rather support the
text in Wood as to the scope of Austin v. Drew, properly
understood.
In Scripture v. Lowell Mui. F. Ins. Co. 10 Cuah. 356,
many of Uie erroneous notiona of the scope of Austin v. Drew,
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26] . AUGUST TERM, 1&09. 403
O'Connor ▼. Qoeen Ina. Co. 140 Wis. 388.
•which have misled text-writers and courts, are referred to. It
is shown that some have supposed the decision went *upon the
ground of carelessness of servants ; others that it went upon
tlie ground of damage to things in process of manufacture by
means of the fire in the stove; and others that it went on the
ground of there having been no ignition of any property
covered by insurance. Cushino, J., after repudiating all of
sudi notions as illegitimate, stated what was decided, as con-
fined to the facts, but plainly pointed out the real rule of the
case by saying:
"If, in Austin v. Drew, the fire had been where it ought
not to be, if, even with careless management, it had burned
the building, • . . the insurers would have been held to be
liable for the loss."
In other words, if the fire had escaped from the stove and
anything had thereby been burned the loss would have been
recoverable.
That is in harmony with the following: Babcoch v. Mont-
gomery Co. Mtd. Ins. Co. 6 Barb. 637 ; Gibbons v. German
Ins. & Sou. Inst. 30 IlL App. 263, 265; Western W. M. Co.
v. Northern Assur. Co. 139 Fed. 637; Camion v. Plio&mx
Ins. Co. 110 Ga. 563, 35 S. E. 775 ; Samuels v. Continental
Ins. Co. 2 Pa. Dist Rep. 397.
The text in Wood on Insurance, in the sense intended, has
been many times sanctioned. The following language of the
court in American T. Co. v. German F. Ins. Co. 74 Md. 25,
21 Atl. 553, is a good illustration:
'^If a person has his house insured against all loss or
damage by fire, and he should make a fire in his grate or fire-
place of such intense heat as to crack his chimney, or to warp
or crack his mantlepieces, it could hardly be contended that
he should hold the insurance company liable for such damage,
though the damage was unintentionally allowed to be pro-
duced by the action of fire. In such case the fire would not
have been extended beyond the proper limits within which it
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404 SUPREME COURT OF WISCONSIN. [Oct.
O'Connor v. Queen Ins. Co. 140 Wis. 388.
was intended to bum ; but the heat emitted therefrom would
have produced effects not intended by the insured.
"No doubt there are many instances where the insurer has
been held liable for injury done to buildings and furniture
by heat or smoke, without actuai ignition, where the heat or
smoke has proceeded from fire outside of and beyond the
limits of the place where it was intended, by the contract of
insurance, to bum. But that is a different question. . . . "^
* That Mr. Wood did not intend that there must^ necessarily,
be ignition of the property insured as a condition precedent
to a recovery, but only that there must be a fire at least outr
side its proper place, and cause the damage, proximately,
eitter by charring or smoking or unduly heating with or
without ignition, of the property insured, or ignition of some
other property and proximately reaching and damaging the
property insured by ignition or otherwise, is evidenced by
the following language of sec. 104:
"There must be an accident by fire to lay the foimdation
of a claim. By this it is not meant that the property itself
must have been on fire, but that there must have been either
an ignition of the property itself, or of other substances or
property nearby to it, whidi was the proximate cause of the
loss. Fire [that is, as applied to tlie facts of this case, fire
outside of the furnace] must have been the proximate cause
of the loss. This rule does not require that the property it-
self should have been burned by the fire or even injured di-
rectly by the fire at all, but simply that the fire must have
been the proximate cause of the injury."
That is, as applied to this case, fire, having an identity as
such, and which could be pointed to as a proximate cause,
outside of the furnace must cause the loss.
Mere charring does not require fire in the thing charred or
direct application of fire. It is caused by fire, but not, neces-
sarily, by fire outside its proper place, satisfying the calls of
the policy. Such a fire requires luminosity outside its proper
place. Western W. M, Co. v. Northern Asmr. Co. 139 Fed.
637. Without that there may be charring by radiated heat
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26} AUGUST TEEM, 1909. 405
0'Ck)nnor T. Queen Ins. Co. 140 Wis. 388.
from some luminous substance inside its proper place as in
this case.
I must not pass the suggestion of the court that Gush-
ing, J., in Scriptwre v. Lowell Mut. F. Ins, Co. 10 Cush. 356,
stated that the logic of Austin v. Drew, 4 Camp. 360, is that
the fire in question was an ordinary fire. I do not so read
Justice Cushing's language, as I have before indicated, but
rather that the learned Massachusetts court, in addition to
limiting the decision to precis© facts, damage to things in
the process of manufacture by a negligently managed fire in
its proper place, said, as plainly, it seems, as need be, that the
gist of the decision is, that there was no fire at all outside its
proper place.
In Way v. Abington Mut. F. Ins. Co. 166 Mass. 67, 43
N". E. 1032, there was a fire started in a chimney, causing the
lining thereof to fall, and soot and smoke to escape and dam-
age the insured property. I assume my brethren relied much
on that It is, however, in perfect harmony with Austin v.
Drew, and also with Cannon v. Phoenix Ins. Co. 110 Ga. 563,
35 S. E. 775, conceded, as I understand it, to be against the
conclusion here and in harmony with all that I have said.
The Massachusetts case went upon the ground that the chim-
' ney was no proper place for a fire ; that when it started it was
an independent cause, one separate and distinct from the fire
in the stove, and outside the proper place for a fire and so was
within the risk insured against; that the ignition within the
xjhimney being a sufficient fire to satisfy the calls of the
policy, no ignition outside thereof w^s piecessary to a recov-
ery. Austin V. Drew was approved and followed. The court
jseemed to appreciate that it was going a great way to include
fire in a chimney, incidental to a fire in a stove, within the
meaning of "fire" as used in a policy of insurance, yet was
'Careful to dignify it as a fire separate and distinct from that
in the stove, before concluding that there could be a recovery.
'^^e are inclined to the opinion," said the court, "that a dis-
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406 SUPREME COURT OF WISCONSIN. [Oct.
O'Connor ▼. Queen Ins. Co. 140 Wis. 388*
tinction should be made between a fire intentionally lighted
and intended for a useful purpose in connection with tlie oc-
cupation of a building^ and a fire which starts without human
agency in a place where fires are never lighted nor main-
tained."
I am unable to discover any authority cited which comes
as near supporting the decision from which I dissent as the
one just referred to. That, however, as is the case with all
others, clearly involved actual fire within the calls of the pol-
icy, which immediately and proximately, or the latter, caused
the damage.
In closing I will notice that the fire in question is referred
to as "unusual," as if that took the case out of Austin v. Drew.
That theory was repudiated in Scripture v. Lowell Mvi. F,
Ins. Co,, supra, recc^ized here and by most text-writers and
courts as having stated clearly the gist of Austin v. Drew, and
fenced out the numerous erroneous theories indulged in by
some, as a basis for criticism, or decisions one way or the
other, according to circumstances. The fire is also referred
to as a "hostile fire," adopting language coined by the Massa-
chusetts court in Way v, Ahington Mut. F. Ins. Co., supra, as
if, within the doctrine of that case, a fire built in a furnace
and confined thereto may become a "hostile fire" merely by
becoming uselessly and negligently too large. The term "hos-
tile fire" is misapplied, it seems, hera It was used by the
Massachusetts court as an appropriate characterization of a
fire started accidentally in a place not designed for that pur-
pose. Obviously, if in that case the fire had been started by
the assured in the chimney, it would not have been called a
"hostile fire," and within the calls of the policy, merely be-
cause it became unexpectedly large and destructive. It was
suggested in the opinion that had the fire been set in the chim-
ney it would not have been what was denominated a "hostile
fire."
The importance of the subject treated justifies, it is
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26] AUGUST TERM, 1909. 407
Monture t. Regling, 140 Wis. 407.
thought, the length of this opinion. If I am right in the
idea that the court has gone beyond any substantial support in
the books, especially in allowing the recovery for damages
wholly caused by radiated heat, without even charring, and
by smoke, what I have written may be helpful when the ques-
tion shall again be presented.
The opinion written for the court, doubtless, supports the
decision rendered as fully as it can well be done. It states
clearly the court's position that radiated heat and smoke from
a fire, wholly confined to a furnace in which the fire is made
for an ordinary purpose, causing charring of houise finish and
discoloration of woodwork and furniture, is within the calls
of the standard policy of this state for a remediable loss di-
rectly caused 'Tby fire."
In my opinion, the judgment should be reversed, and the
cause remanded for a new trial, or for judgment for the de-
fendant It has not been necessary to study the case care-
fully to discover which of the alternatives is the rig^t one.
MoNTUBE, Respondent, vs. Regling and another, Appellants.
October S—Ocioher 26, 1909.
Rales: Pleading construed: Special verdict: Evidence of market vaJue:
Appeal: Errors affecting substantial rights,
1. The complaint alleged that the defendant was iadebted to the
plaintiff for thirty-four loads of gravel "hauled aad delivered"
at $2.50 per load "for hauling the same.*' The answer admitted
this, but averred that the agreed price was $2 per load. At the
trial the complaint was amended so as to claim what the gravel
was reasonably worth per load. The court construed the com-
plaint, taken with the answer and the evidence, to present a
case for the recovery of the reasonable market value of the
gravel sold and delivered by the load, and not an action on con-
tract for services performed. Held, that there was sufficient
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408 SUPREME COURT OF WISCONSIN. [Oct.
Monture v. Regling, 140 Wis. 407.
duplicity In the pleadings to make this construction admissible
and conclusive on the parties on appeal.
2. Under such pleadings, questions submitted for special yerdicC
asking whether there was an express agreement for $2 per load,
and, if not, what was the reasonable value per load, sufficiently
cevered the issues.
3. To establish the market value of gravel sold and delivered by
the load to the defendant, plaintiff introduced evidence as to
what other persons had paid him per load and of the comparar
tive size of the loads. Held, that such evidence was incompe-
tei>t because going farther than general evidence of sales and
tending to prove the terms of specific contracts with other per-
sons; but, its Introduction having been permitted, it was error
to exclude testimony, offered by defendant in rebuttal thereof,
that as to some of such sales the amount paid was less than
plaintiff's evidence showed, and that the loads delivered to de-
fendant were smaller than those delivered to the other persons.
4. Where erroneous rulings on evidence vitally affect the whole
amount In controversy the Judgment cannot be affirmed under
ch. 192, Laws of 1909, on the ground that the substantial rights
of the appellant are not affected, although the actual difference
between the parties will not cover the cost of a new trial; nor
can the appeal be dismissed or the judgment be affirmed under
the rule de minimis non curat lex, so long as the parties have
the right of appeal regardless of the amount involved.
Appeal from a judgment of the circuit court for Shawano
county : John Qoodland, Circuit Judge. Reversed.
For the appellants there was a brief by Eberlein 4& Eher-
lein, and oral argument by Jf . 0. Eberleiru
P. J, Winter, for the respondent,
Timlin, J. The complaint averred that the defendants
were indebted to the plaintiff upon an account for thirty-four
loads of gravel hauled and delivered by the plaintiff to de-
fendants at request of the latter for the agreed price of $2.50
per load. The answer admitted this, but averred the price
agreed upon was $2 per load and was all paid except $38.
Upon the trial the complaint was amended so as to claim to
recover what the gravel was reasonably worth per load instead
of an agreed price. By special verdict the jury negatived the
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26] AUGUST TEEM, 1909. 409
Monture v. Regling, 140 Wis. 407. '
-claim of defendants that there was a price fixed by contract,
but found that the reasonable value of the gravel delivered
was $3 per load. For the amount thus arrived at, less con-
<5eded pajmaents, the plaintiff had judgment and the defend-
ants appealed.
It might, not unreasonably, be supposed that in such a case
the parties would be content with two trials — one in the jus-
tice's court and one in the circuit court But in this state
a party to any such controversy, without regard to the amount
involved and without inquiry into his discretion or his mo-
tives, may gratify his yearning for justice or for litigation by
appeal to this court, and receive the same careful considera-
tion accorded to other litigants.
It must be obvious from the above statement of the plead-
ings that the only question at issue between the plaintiff and
defendants was whether there was an agreement that the
gravel be delivered at $2 per load or at its market or reason-
able value, and, if the latter, what was the market value. It
appeared from the testimony of appellants that they pur-
chased this gravel by the load, receiving these loads from time
to time until about September 12th, when one of the defend-
ants asked the plaintiff if he was going to charge $3 per load.
The plaintiff said 'TTes," whereupon he was notified not to
haul any more and no more was hauled.
Appellants' counsel contends that in the trial of this simple
question ten reversible errors occurred in the court below.
The first is because judgment was not directed for defendants.
But judgments are not usually directed for defendants who
by their answer admit liability to the plaintiff, as in this
case. It is contended that the action is upon a contract for
services performed and not a contract for sale of gravel by the
load, and that there is no proof of the reasonable value of the
services performed. But the proposition that the contract is
one for services rests upon the words of the complaint^
'Tiauled and delivered," used instead of the customary words,
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410 SUPREME COURT OF WISCONSIN. [Oct.
Monture v. Reeling, 140 Wis. 407.
"sold and delivered," and upon the words "$2.50 i)er load
for hauling the same.'^ The circuit court construed the com-
plaint, taken with the answer and the evidence, to present a
case for the recovery of the reasonable market value of gravel
sold and delivered by the load, and there is sufficient duplicity
in the pleading to make this construction admissible and con-
clusive on the parties on this appeal. All alleged errors-
bottomed upon this theory must fail. The special verdict is
said to be defective and insufficient, but by that verdict the
jury were asked whether there was an express agreement for
$2 per load, and, if not, what was the reasonable value per
load. This covered the issues precisely, and the court was
justified in refusing to submit any other quostions.
It is next claimed that the court erred in receiving evidence
offered by the plaintiff and in rejecting evidence offered by
the defendants. The plaintiff was asked what was the market
value of gravel, and what was it reasonably worth per load
deliv«^ in the city of Shawano, and he answered $3 per
load. After cross-examination the plaintiff's attorney did not
seem satisfied with this, and inquired further on redirect ex-
amination: "^. You hauled gravel to different people in
Shawano? A. Yes. Q, What had you received per load for
gravel ? ^' This was objected to, the objection overruled, and
the defendants excepted. The plaintiff answered, "$3." He
was then asked whether these loaJs were of the same size as
those hauled for defendants, and against objection and excep-
tion he answered *^Yes."
This testimony received, if not incompetent^ borders dosely
upon incompetency. If it can be considered proof of market
vialue by the general or prevailing price obtaining at Shawano
for this commodity it would be proper; but if it can be con-
sidered an attempt to prove the terms of specific contracts
with other persons it would be incompetent Hie plaintiff
afterward called several persons to show idiat they were
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26] AUGUST TERM, 1909. 411
Montore t. BegliDg, 140 Wis. 407.
paying him per load for gravel in Shawano and about the
time in question. When the defendants put in their proof
they offered to show by a witness on the stand that as to some
of these persons the plaintiff was not receiving (3 per load
for the gravel delivered, and also offered evidence tending to
show that the loads of gravel delivered by the plaintiff to
defendants contained much less than two cubic yards per load,
that gravel was worth in Shawano only $1.25 per cubic yard,
and the loads delivered by plaintiff to defendants were small
loads, smaller than those delivered to other persons. This
testimony was rejected, the view of the trial court apparently
being that the testimony offered by plaintiff was merely
general and 4^r the purpose of establishing the market price,
while that offered by defendants was specific and related to
particular contracts, and that the contents in cubic yards or
cubic feet of a load could not be proven as bearing upon the
market price because there was no objection made to the size
of loads at the time the defendants received them, while de-
fendants' pleadings admitted a purchase by the load. The
learned circuit judge was probably in error, not in his ruling
on the evidence had it been as he understood it, but the evi-
d^ioe goes farther on the part of the plaintiff than general
evidence of sales, and the evidence offered by defendants and
rejected tended to contradict the statement of the plaintiff
that he was receiving $3 per load from a person designated
by him, and to prove that the loads delivered by plaintiff Uy
defendants were small loads and consequently worth less than
$3 per load. The plaintiff in proving the market or reason-
able value per load offered evidence of the comparative size
of the loads delivered. Evidence on the part of the defend-
ants to show a less quantity in a load and to show discrepancy
between sizes of loads delivered to defendants and those de-
livered to olier persons from whom plaintiff was receiving $3
per load was competent and should have been ^received, not in
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412 SUPREME COURT OF WISCONSIN [Oct.
Monture v. Regling, 140 Wis. 407.
support of defendants' answer, but in rebuttal of plaintiffs
evidence on this same subject There was therefore error as
assigned in the admission and rejection of evidence.
We are required by ch. 192, Laws of 1909, to affirm the
judgment of the court below notwithstanding these errors,
unless in our opinion, after an examination of the entire ac-
tion or proceeding, it shall appear that the error complained
of has affected the substantial rights of the appellants. The
actual diflFerence between appellants and respondent is fifty
<»nts per load on thirty-four loads of gravel, or $17, because
the $3 per load which the jury found to be the reasonable
value included fifty cents per load to be paid by the re-
spondent to the owners of the gravel pit^ whiW the $2 per
load claimed by defendants in their answer excluded fifty
<5ents per load to be paid by appellants to the owners of the
gravel pit Doubtless the whole diflFerence of $17 will not
<30ver the cost of a new trial; but, as the evidence erroneously
admitted and erroneously excluded vitally affects the whole
amount in controversy between the parties, we cannot say
that the substantial rights of the appellants were not aflFected,
nor can we dismiss the appeal or affirm the judgment by
application of the maxim de minimis non curat lex, so long
as the parties have a right in the law to appeal to this court
on 'the ground of error in an action at law regardless of the
amount involved.
We find no reversible error in the instructions to the jury,
nor in the form of the special verdict, nor in any other ques-
tion properly before this court for review. But for error in
the admission and exclusion of evidence the judgment must
be reversed. Kelley v. Schupp, 60 Wis. 76, 18 N. W. 725 ;
Jones, Ev. § 140, and cases cited.
By the Court. — ^The judgment of the circuit court is re-
versed, and the cause remanded for a new triaL
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26] AUGUST TERM, 19()9. 4ia
Seering v. Black, 140 Wis. 413.
SsBsiNO, Bespondent^ vs. Black, imp., Appellant
OcioJ>er 5--Octol>er Z6, 1909.
Ocrporations: DUsolutUm: Refusal of directors to settle affairs:
Winding-up action hy stockholder: Pleading: Joinder of causes
of action: Rights of creditors,
L Where the directors of a dissolved corporation have wholly failed
and refused to perform the duties Imposed by sec. 1764, Stats.
(1898), to settle its affairs and distribute its assets, thus de-
priving a stockholder of his share of the assets and correspond-
ingly enriching themselves, the stockholder may maintain an
action in equity to wind up the affairs of the corporation and
for the appointment of a receiver to perform the functions which-
the directors have refused to perform.
2. In such an action there was no impropriety in alleging that plaint-
ift was also a creditor of the corporation and in setting forth
a fairly complete history of its condition and affairs.
3. Although the prayer of the complaint in such an action might be
considered as asking for relief which could not be granted
therein, viz., a money judgment in favor of plaintift as a cred-
itor and a like Judgment in favor of the corporation against its
officers, yet it might also be construed as asking merely that
the claims so involved be duly paid or enforced by the receiver,
and, so construed, the complaint states but a single cause of
action.
4. The mere fact that unnecessary or even improper relief is prayed
for does not show that more than one cause of action is stated.
[5. Whether a creditor other than a Judgment creditor may maintaia
an action to wind up the affairs of a corporation dissolved by
operation of law, not determined.]
•
Appeat. from an order of the circuit court for Shawano
county: John Goodland, Circuit Judge. Affirmed.
The appeal is from an order overruling a demuirer to a
complaint
The complaint set forth that Black Brothers Company was
a domestic corporation organized in June, 1906, with an
authorized capital of $30,000, for the purpose of conducting
a mercantile business, and that $21,000 in capital stock was
issued, of which the plaintiff held $7,000, John Black
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414 SUPKEME COURT OF WISCONSIN. [Oct.
Seering v. Black, 140 Wis. 413.
$6,900, Mary Black, his wife, $100, Joseph Black $6,900,
and Nellie Black, his daughter, $100 ; that each of the stock-
holders was a director in the corporation; that John Black
was president and Joseph Black was secretary and treasurer,
4uid that plaintiff was vice-president thereof ; that on October
22, 1906, said corporation sold all of its property except book
accounts owing to it and has transacted no business since said
<Iate ; that said corporation failed to make the report required
by sec. 1774(i, Stats. (Supp. 1906; Laws of 1905, ch. 507,
sea 5), showing the condition of its business on January
1, 1907, and that, by appropriate proceedings had in pursu-
ance of such statute, its franchise was forfeited on January
2, 1908, at which time it was dissolved by operation of law;
that at the time of such dissolution there was due and owing
to such corporation on account from the defendant Joseph
Black the sum of $2,583.83, and from John Black the sum of
$2,059.04, and in other accounts about $1,500, and that there
was due and owing to plaintiff from said corporation the sum
of $2,840 on an indebtedness duly assumed by the corpora-
tion ; tjiat the defendants Black had control of the board of
<lirector3 of said corporation; that they are the principal
debtors of said corporation and refuse to take any steps to
ccdlect the moneys due the same or to liquidate the indebted-
ness due plaintiff, and that due demand has been made upon
them to perform their duties as officers and trustees of said
corporation, but they have failed and refused to act, in-
tending thereby to defraud the plaintiff of his rights as a
stockholder and creditor of the corporation; and that it is
necessary to appoint a receiver to marshal the assets of said
corporation and wind up its affairs.
As relief the plaintiff asks (1) that a receiver be appointed
to collect the outstanding debts and pay the accounts ; (2) that
the defendants, John and Joseph Black, be compelled to pay
to the corporation the amount of their indebtedness thereto;
{3) that the plaintiff have judgment directing the receiver to
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^6] AUGUST TERM, 1909. 415
Seering v. Black, 140 Wis. 413.
pay over to him. the amount found to be due from the corpora-
tion; (4) that plaintiff be paid the amount found due him on
an accounting after the affairs of the corporation are wound
up; (5) that the corporation be dissolved and its affairs
settled up and that its assets be distributed; (6) that plainUff
have such other relief as may be equitable.
The defendant John Black demurred to this complaint <hi
various grounds, but two of which are relied on: (1) That
the complaint does not state a cause of aetion; and (2) that
several causes of action have been improperly united. From
an order overruling this demurrer said defendant appeals.
For the appellant there was a brief by Eberlein & Eber-
lein, and oral argument by M. B. Eberlein.
For the respondent there was a brief by Paul J. Winter,
attorney, and Greene, Fairchild, North & Parker, of counsel,
and oral argument by Mr, Winter.
Baenes, J. By sec. 1764, Stats. (1898), the directors of
the dissolved corporation were continued in office for the pur-
pose of selling and disposing of its property, collecting its
debts, paying its obligations, and distributing its assets among
its stockholders. Lindemann v. Rusk, 125 Wis. 210, 104
N. W. 119. Taking as a verity the averments of the com-
plaint, the defendants have whoUy failed to perform the
duties imposed on them by law. By such conduct they are
depriving the plaintiff of his share of the corporate assets
and correspondingly enriching themselves. That a court of
equity has power undw such circumstances at the suit of a
stockholder to entertain a winding-up suit and to appoint a
receiver to perform the functions whidi the defendants have
wrongfully and fraudulently fefused to perform does not
admit of doubt 2 Cook, Corp. § 641; Lindemawn v. Rusk,
mpm; Elmergreenv. Weimer, 138 Wis. 112, 119 N. W. 836.
The complaint states sufficient facts to constitute a cause of
action.
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416 SUPREME COURT OF WISCONSIN. [Oct.
Seering ▼. Black, 140 Wis. 413.
That the complaint does not improperly unite several
causes of action is not so dear. An inference might well be-
drawn that a money judgment in favor of plaintiff as a
creditor was sought in this action, and also that a like judg-
ment in favor of the corporation was sought against John and
Joseph Black on an ordinary account alleged to be due from
them to it Such relief cannot be granted in a winding-up-
suit Harrigan v. Oilchrid, 121 Wis. 127, 240, 99 N. W.
909. Equity will entertain a suit by a creditor to wind up-
the affairs of an insolvent or of a dissolved corporation.
Killen v. Barnes, 106 Wis. ^46, 559, 82 N. W. 536 ; Oores v.
Day, 99 Wis. 276, 74 N. W. 787. But we are not prepared
to say that the general rule that only a judgment creditor
may maintain such a suit is not applicable to a corporation
dissolved by operation of law. The allegation in the com-
plaint to the effect that plaintiff is a creditor is proper enough,
even though he is not presently entitled to maintain the action
as such. We see no impropriety in placing a fairly complete-
history of the condition and affairs of the corporation be-
fore the court in the suit of plaintiff as a stockholder. The
ambiguity arises out of the demand for judgment If the
pleader intended to set out more than one cause of action, he
did not follow sec. 2647, Stats. (1898), which requires that
different causes of action be stated separately. We think
the prayer for relief may be construed as a demand by the
plaintiff that the receiver pay him the amount found to be
his due, after he has filed his claim and proved it in the
receivership proceedings in the manner provided by law, and
that the defendants John and Joseph Black be obliged to pay
to the receiver as the representative of the corporation the
amount found to be due from them in an appropriate pro-
ceeding brought for the purpose of compelling such payment
So construed, the complaint states but a single cause of action.
The mere fact that the plaintiff is asking for mmecessary or
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26] AUGUST TERM, 1900. 417
Green Bay <fe M. a Co. ▼. Telulah P. Co. 140 Wis. 417.
even improper relief does not in itself show that more than
one cause of action is stated.
By the Court — Order affirmed,
Timlin, J. I concur in the opinion written by Justice
Barnes, but I do not think it is an open question in this
state whether a creditor who has not recovered a judgment
can maintain such an action as this against such a corpora-
tion. I do not think any doubts on this barren, outworn, and
quite useless technicality of practice should be revived, espe-
cially when the action is to enforce a trust or fiduciary duty.
The statute is sec 3223, Stats. (1898). The cases are
Sleeper v. Goodwin, 67 Wis. 677, 31 K W. 335 ; Michelson
V. Pierce, 107 Wis. 85, 82 K W. 707; Booth v. Dear, 96 Wis.
616, 71 K W. 816, and other cases.
"Liability created by law.'' Hurlbut v. Marshall, 62 Wis.
690, 594, 595, 22 N. W. 852. This also has been since
followed ; all of which may be found by any one having the
time and industry so to do.
Mabshall, J., dissents.
Gbeen Bat & Mississippi Canai* Company, Appellant, vs.
TsLULAH Papsb Compant and others, Bespondents.
Octoher S — October 26, 1909.
Mills and mindama: Navigal>1e rivers: Flowage of lands: Limitation
of actions: Prescription: Equitable actions: Statute construed:
Lowering head at upper dam: Findings of fact: ** Adverse** flow-
age: Landlord and tenant: Acquiring hostile title: Estoppel.
1. The words "any milldam" In subd. 3, sec. 4221, Stats. (1898), —
first enacted as ch. 184, Laws of 1862, — do not relate merely to
dams across nonnavigable streams authorized by ch. 146, Stats.
Vol. 140—27
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418 SUPliEME COURT OF WISCONSIN [Oct.
Green Bay & M. C. Co. v. Telulah P. Co. 140 Wis, 417.
1898 (ch. 56, R. S. 1858), but Include a dam built across a navi-
gable stream for the purpose of creating water power to op-
erate mills.
2. A dam erected to create power to operate mills, which power is
used exclusively for that purpose, is a milldam within the
meaning of subd. 3, sec. 4221, Stats. (1898), although the cor-
poration erecting It has no power itself to operate mills, but
merely leases or sells the power to mill owners while retaining
title to the dam itself.
3. Subd. 3, sec. 4221, Stats. (1898), has the effect to confer title at
the expiration of the ten years within which an action for dam-
ages for the flowing of lands by a milldam must be commenced,
and bars, therefore, an equitable action to restrain the main-
tenance of the dam as well as an action for damages.
4. The raising, by a milldam, of the water wholly within the banks
of a river, thereby lowering the available head of the water at
an upper dam and covering with a greater depth of water the
bed of the river at and below the upper dam. Is a flowing of the
lands of the owner of such upper dam and river bed, within tlie
meaning of subd. 3, sec. 4221, Stats. (1898).
5. A finding by the court that for a period of more than ten years
the setting back of the water upon plaintiff's land by defend-
ants' milldam had been "uninterrupted, continuous, open, no-
torious, and adverse, and so as to maintain om plaintiff's land
the same water level in the same stages of water," covered all
the elements necessary to render operative the bar of subd. 3,
sec. 4221, SUts. (1898).
6. The word "adverse" in such a finding, while it embodies a con-
clusion of law, is also a comprehensive statement of an ultimate
conclusion of fact embracing all the elements necessary to
make possession adverse.
7. Proof that a milldam was completed In a certain year, without
fixing the exact date, does not show that an adverse fiowage of
land thereby began before the last day of that year.
8. The fact that for a part of the ten years during which, as de-
fendants claimed, the lands of plaintiff, the owner of an upper
dam, had been flowed by means of a lower dam, the general
manager of one of the defendants acted as principal manager
of the lower dam and was also general manager of a corpora-
tion which had leased from the plaintiff certain amounts of
water power from the upper dam and certain lots below that
dam, did not prevent the flowage from being adverse to plaint-
iff during the whole of said ten-year period, in the absence of
a showing that the property so leased from plaintiff was in any
way interfered with or encroached upon by the setting back of
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2G] AUGUST TERM, 1909. 419
Green Bay & M. C. Co. v. Telulah P. Co. 140 Wis. 417.
the water from the lower dam. The doctrine that a tenant
cannot deny his landlord's title or acquire a hostile title while
the tenancy continues has no application to such a case.
9. The fact that a dam across a navigable river is an unlawful
structure because It obstructs the river without legislative au-
thority, does not prevent the acquirement by prescription of
the right to maintain such dam as against individual owners
of lands above the dam.
Appeal from a judgment of the circuit court for Outa-
gamie county: Chester A. Fowler, Judge. Affirmed.
For the appellant there were briefs by Qiuirles, Spence &
Qioarles, attorneys, and Oeorge Lines, of counsel, and oral
argument by Mr. Lines.
For the respondents there was a brief by Hooper & Hooper,
and oral argument by Moses Hooper.
WiNSLOw, C. J. In February, 1892, the plaintiff cor-
poration, which is the owner of the surplus water power not
needed for navigation purposes created by the Grand Chute
or government dam in the Fox river at Appleton, brought
this action in equity against the defendants, who own the
dam immediately below the plaintiff's dam, and known as the
middle dam at Appleton, and the water power created
thereby, to restrain the defendants from maintaining said
middle dam at its present height^ claiming that the same un-
lawfully sets back the water of the river and flows the plaint-
iff's lands and water wheels to the depth of thirty inches.
The trial court found that there had been, prior to the com-
mencement of this action, ten years^ uninterrupted and
adverse user by the defendants of the said middle dam at the
height at which it was maintained at the time of the com-
mencement of this action, and thereupon dismissed the
complaint^ holding that the action was barred by subd. 3,
sec. 4221, Stats. (1898), or, if not barred by this subdivision,
then by subd. 4 of the same section. The plaintiff first
contends that subd. 3, above mentioned, is not applicable
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420 SUPREME COURT OF WISCONSIN. [Oct.
Green Bay A M. C. Ck). v. Telulah P. Co. 140 Wis. 417.
(a) because said section only applies to milldams across non-
navigable streams, and the Fox river is in law a navigable
stream; (b) because the said middle dam is not a miUdam
in the usual and ordinary sense; (c) because this is not an
action to recover damages; and (d) because no flowing of
lands is involved. We will take up these propositions in the
order indicated.
1. The subdivision named places, among the actions which
must be brought within ten years after the cause of action
accrues, "An action for the recovery of damages for flowing
lands, when such lands have been flowed by reason of the
construction or maintenance of any milldam." This section
first appeared upon our statute books in 1862 as ch. 184 of
the laws of that year, where it read as follows :
"No action for the recovery of damages for the flowing of
lands shall be maintained in any court in this state, when it
shall appear that said lands have been flowed by reason of the
construction or erection of any milldam for the ten years next
preceding the commencement of sudi action: provided, any
party shall have one year from and after the passage of this
act in which to commence an action for the recovery of any
lands, tenements or hereditaments heretofore flow^, or for
the recovery of the possession thereof, or for damages to the
same.''
The argument is that when this act was passed the word
"milldam'' had acquired a tedmical and special meaning in
our law by reason of the existence of ch. 66, R S. 1858, en-
titled "Of mills and mill-dams" (now ch. 146, Stats. 1898),
and that this special meaning was and is confined to dams
authorized by said chapter, to wit, across nonnavigable
streams, and that the subsequent re-enactment of the section
in substantially the same words in the revisions of 1878 and
1898 as subd. 3, sec 4221, in no way changes the original
special meaning. Doubtless the result would follow if the
major premise were correct, R. S. 1878, sec 4985; Stat.*?.
(1898), sec 4985. But we see nothing to indicate that i\\e
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26] AUGUST TERM, 1909. 421
Green Bay & M. C. Co. v. Telulah P. Co. 140 Wis. 417.
legislature in passing ch. IS-i of the Laws of 1SG2 intended
to confine the provisions of the act to milldams erected under
the provisions of ch. 56 across nonnavigable streams; on the
contrary, the argument seems to be the other way.
The act is general in its terms, and purports to bar an
action after ten years' flowage by "any milldam." A dam
which is built across a navigable stream for the purpose of
creating water power to operate a mill is just as certainly
a milldam as one built across a nonnavigable stream. So by
its language the act covers one as well as the other. Courts
certainly should not be industrious in seeking out obscure or
unusual meanings to attach to statutory expressions, when
the words used are plain and unambiguous and the ordinary
moaning is entirely reasonable. Kow, had the legislature
desired and intended to confine the act to dams erected and
maintained under the milldam law (t. e. dams across non-
navigable streams), the most obvious and natural thing would
be to say so in direct language, and add the section to ch. 56
of the Revised Statutes of 1858, thus completing the special
code governing the erection and maintenance of this class of
milldams. This seems the more certain when it is remem-
bered that there were many milldams in the state across
navigable streams which had been erected under special Ic^s-
lative acts, and also that the milldam law, while first enacted
in 1840, was repealed in 1850 and not re-enacted until 1857.
During this interregnum the session laws fairly teem with
special acts authorizing the erection of milldams, none of
which, of course^ were milldams in the technical and special
sense claimed by the respondents here. It seems probable that
at the time this act was passed there were full as many dams
in the state which had been built outside of the provisions of
the milldam law as under it Undoubtedly the legislature
knew this fact, and, so knowing, passed a law applying gen-
erally to any milldam "in the state." Upon principle it
would seem that under these circumstances this law, framed
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422 SUPREME COURT OF WISCOXSIX. [Oct.
Green Bay & M. C. Co. v. Telulah P. Co. 140 Wis. 417.
in unambiguous, general words, must have an interpretation
juBt as broad and general as the words used commonly receive.
Furthermore, the question seems to have been decided ad-
versely to appellant in the case of Ruehl v. Voight, 28
Wis. 153, where the owners of a dam on Rock river, erected
by virtue of a special act of the territorial legislature of 1845^
pleaded this statute, and upon this exact point the court said :
"The language of the statute is clear, precise, and compre-
hensive, and bars every action where the lands have been
flowed for ten years without any claim for damages. The
statute means this, or it has no meaning whatever."
It is true that in that case the act authorizing the dam
made it subject to the provisions of the milldam law then
existing, but the decision was not placed on this ground, but
on the broad ground that the language covered "any milldam"
or none.
In Cobb V. Smith, 38 Wis. 21, which was an action of
flowage caused by a dam erected on a navigable stream under
express legislative grant^ this statute of limitations was
pleaded ; and while it was held that the pleading showed that
the use had not been adverse, still the court treated the statute
as applicable to such a dam had the facts been suflScient
2. The claim that the middle dam is not a milldam within
.the meaning of the word as used in the statute is based on the
fact that it was built by the defendant the Appleton Water
Power Company, a corporation organized for the purpose of
constructing this dam "and for improving and creating water
power and river lots in and near said water power and for
holding and disposing of the same," and the further fact that
it has no power to operate mills and does not do so, but has
sold or leased the power created by the dam in parcels to the
various other defendants for mill purposes, while retaining
title to the dam itself. The argument does not appeal to us
very strongly. It seems that a dam erected to create power
to operate mills, which power is used exclusively to operate
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26] AUGUST TERM, 1909. 423
Gyefen Bay & M. C. Co. v. Telulah P. Co. 140 Wis. 417.
mills, is logically and truly a milldam, notwithstanding the
ownership of the dam and of the mills may be in different
persons. It is true that this court has held that ch. 184 of the
Laws of 1862 only applies to "milldams in the proper and
strict sense of the words," and that a dam which was part of
and necessary to a general scheme for the improvement of the
navigation of a river, so as to make it a public highway, was
not properly a "milldam'^ within the meaning of the law,
though the power created by it might be used to operate mills.
Arimond v. Oreen Bay & M. C. Co. 35 Wis. 41. The rule
there laid down seems reasonable, but we do not perceive that
it is applicable to the present casa
3. We agree with appellant's contention that this is not an
action to recover damages, but rather an equitable action to
enjoin the continuance of a nuisance, with an incidental
claim for damages, but we caimot agree with the conclusion
drawn therefrom to the effect that the limitation statute does
not therefore apply. It is true that the law in terms only
prohibits the bringing of "an action for the recovery of
damages for flowing lands" after the expiration of the ten-
year period, but this court has held that the effect of this
statute is to confer title after the ten-year user is complete,
on the principle that where (as in Wisconsin) the statute of
limitations destroys the right as well as bars the remedy, that
result must follow. Johnson v. Boorman, 63 Wis. 268, 22
N. W. 514. This ruling effectively disposes of this conten-
tion.
4. The contention that there is no flowing of lands within
the meaning of the statute in the present case is yet to be
considered. It appears that the setting back of the water by
the defendants' dam is wholly within the banks of the river,
so that no lands outside of the banks are overflowed, but the
dam raises the water within the banks so as to lower the
available head of the water power furnished by plaintiff's
dam. Is this truly a flowing of lands f We think it is. To
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42-t SUPREME COURT OF WISCONSIN. [Oct.
Green Bay & M. C. Co. v. Telulah P. Ck). 140 Wis. 4U.
hold otherwise would be to engraft a very narrow and tech-
nical meaning upon the statute. The plaintiff owns the lot
upon the south side of Fox river upon which the south side
of its dam rests, and the land for some distance below, and
hence is a riparian owner. In this state the owner of a bank
of a navigable stream owns to the center line (unless the own-
ership of the bank and the bed has been separated), subject
only to the rights of the publia Willow Rivnr Club v. Wade,
100 Wis. 86, 76 N. W. 273. Hepce the plaintiff owns the
bed of the river at and below its dam, subject only to govern-
mental and public rights. This bed is land. While ordi-
narily covered with water to some depth, the defendants' dam
has covered it with water to a greater depth and rendered it
less valuable to its owner. This is flowing of lands in every
true sense.
But the appellant further contends that, even if the statute
of limitations be applicable to such a case, the facts proven,
do not bring the present case within the statute. It is un-
doubtedly true that the user must have been adverse for ten
years prior to the commencement of the action in order to
raise the statutory bar. The court found that the setting back
of the water by defendants' dam had been "uninterrupted,
continuous, open, notorious, and adverse, and so as to main-
tain on plaintiff's land the same water level in the same stages
of water" since the completion of the dam in 1877. These
words include all the elements necessary to render the statute
operative. If there were any doubt as to whether the words
"uninterrupted, continuous, open, and notorious" covered the
subject, that doubt would be removed by the addition of the
word "adverse," which, while it embodies a conclusion of law,
is also a comprehensive statement of an. ultimate conclusion
of fact embracing all the elements necessary to make posses-
sion adverse. We are entirely satisfied from examination of
the record that the evidence fully justified the finding of the
court in this regard, and we deem it unnecessary to make any
review of sudi evidence.
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26] . AUGUST TEEM, 1909. 425
Green Bay & M. C. Co. v. Telulah P. Co. 140 Wis. 417.
But one contention which the appellant makes in this con-
nection must receive attention. The contention is that the
undisputed evidence shows that for a part of the ten years
the possession and management of the defendants' dam was
in the hands of a tenant of the plaintiff at the upper dam,
and hence that the possession during such time could not be
adverse because it was possession by plaintiff's tenant. The
facts on which this claim is based are in brief as follows:
The defendants' dam was completed some time in 1877, the
exact date not being fixed by the testimony or the findings.
Adverse holding under it is not therefore shown to have
begun before December Slst of that year. This dam had a
spindle section in the middle, by the removing or replacing
of which the flow of water was regulated during high or low
water. This spindle section and the regulation of the flow
was in actual charge of one Cough. For some nine years
after the completion of the dam he received his general direc-
tions from Mr. West, who was the original owner of the
power and the principal stockholder in the Appleton Water
Power Company, but the other defendants also gave him
orders if they wanted any accommodations. At about the
close of the nine-year period West sold to the Kimberly-Clark
Company, and Mr. Charles B. Clark of that company took
principal charge of the regulation of the flow and gave Mr.
Cough his orders until 1888. There is no evidence showing
that the defendant millowners ever directly authorized either
Mr. West or Mr. Clark to act as principal manager of the
dam. They seem to have volunteered to act rather than to
have acted under any definite arrangement by the various
millowners. The user was certainly a common user by all of
the defendants. In 1879 the Atlas Paper Company became
the tenant of the plaintiff at its upper dam by leasing certain
amounts of water power and certain lots below the dam upon
which it operated extensive mills. In 1891 it leased all of
the power available at the dam. Mr. Charles B. Clark was
general manager of the Atlas Paper Company during the
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426 SUPREME COURT OF WISCONSIN. [Oct,
Green Bay & M. C. Co. v. Telulah P. Co. 140 AVis. 417.
entire time that its leasehold interest continued. The de-
fendant Telulah Paper Company built its mill in 1887 and
began using water from the middle dam in 1888. Of the
latter corporation Mr. Clark was also general manager.
The doctrine that a tenant cannot deny his landlord's title
to the demised property during his tenancy, nor acquire a
hostile title to the same while the relationship continues, is
well settled. Tondro v. Cushman, 6 Wis. 279 ; Sizer v. Clark,
116 Wis. 534, 93 N. W. 539. The reason is that he has
obtained possession by solemnly acknowledging that his land-
lord has title to the property leased, and hence that he is
estopped by that fact from claiming that his possession of the
leased property is adverse or that he has acquired a hostile
and paramount title thereto.
Giving that principle its fullest weighty it does not apply
here. It does not appear that the middle dam interferes in
any particular with the property leased to the Atlas Paper
Company prior to 1891. That property consisted only of
certain lots below the plaintiff's daiA, which of themselves
carried no water power, coupled with a certain specified
quantity of horse power of water from the dam. It nowhere
appears that the property so leased was at any time or in any
manner interfered with or encroached upon by the setting
badi of the water from the middle dam. Presumptively
there was an ample supply and head of water at the dam to
fill the calls of the lease, even when the water was set back by
the middle dam. It is not shown, therefore, that the adverse
holding by the defendants was in any way hostile or injurious
to the property leased by the Atlas Paper Company.
It is further said that the defendants' dam is and was an
imlawful structure because it obstructs a public navigable
river without legislative authority, and hence it is argued that
no right to maintain it can be acquired by prescription. This
point was decided adversely to appellant's contention in the
case of Pioneer W. P. Co. v. Chandos, 78 Wis. 526, 47 K W.
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26] . AUGUST TERM, 1909. 427
Kathan v. Comstock, 140 Wis. 427.
661, where it was held that while in -such a case the public
right of navigation might not be barred, the rights of upper
owners would be barred by failing to contest the question
until the bar of the statute of limitations was complete.
No further points require attention.
By the Court. — Judgment affirmed,
Kebwin, J., took no part*
Kathan and others, Respondents, vs. Comstock and others,.
Appellants.
Octoher e—'OctoJ>er 26, 1909
ContractM induced ty fraud: Avoidance: False representations: Fact
or opinion: Tax titles: lAmitation of actions: Cancellation of
deed: Judgment.
1. One who makes representations to another of material facts for
the purpose of inducing that other to enter into contractual
relations with him and which are liable to accomplish the pur-
pose without want of ordinary care on the part of such other,
is bound, not merely not to act negligently, but at his peril to<
know whereof he speaks.
2. One not himself knowing the facts involved may reasonably act
on representations by another who desires to enter into con-
tractual relations with him, as to conditions not presently ob-
servable.
3. Where the original owner of land had been in actual possession
of it during the three years following the recording of a tax
deed, thereby preventing the running of the statute of limita^
tions in favor of the deed, a representation by the holder of
the deed that the statute had run in its favor, made for the
purpose of inducing a conveyance by the heirs of the original
owner, was not a mere legal opinion but was a false representa-
tion of a fact material to the transaction and, even though made-
honestly, was such a fraud as in equity would render voidable
a conveyance reasonably induced thereby.
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428 SUPREME COURT OF WISCONSIN. [Oct,
Kathan v. Comstock, 140 Wis. 427.
4. Where in such a case the false representation was as to one only
of several tracts covered by the conveyance, but there was no
evidence enabling the court to apportion the consideration paid,
and defendants had refused an offer giving them an option as
to whether the conveyance should be set aside wholly or only
as to the one tract, it was not error lor the trial court to set
aside the entire conveyance.
Appeal from a judgment of the circuit court for Shawano
county : John Goodland, Circuit Judge. Affirmed.
Equitable action to set aside deeds to real estate and quiet
title.
The issues passed upon in closing the case by judgment
may be concisely stated, as follows : The title to the particular
land in question and others, aggregating twenty-two tracts,
was in Joseph Kathan at the time of his death, May 26, 1901.
He died intestate, leaving as his only heirs his widow, Hattie
P. Kathan, and three minor children, the plaintiffs herein.
The title to said land was vested in them on the death of Mr.
Kathan, subject to six tax deeds thereon in the name of de-
fendant Pier, The title to the particular tract was vested in
Mr. Kathan many years before he died. It was occupied and
used by him, in the main, as a wood lot and for cutting and
removing timber therefrom, continuously, for several years
after his ownership commenced. During such time a small
part was cleared, cultivated, and inclosed by a fence. The
land was thereafter used by Mr. Kathan, continuously, down
to 1897 in connection with an adjoining tract on which he
owned and operated a brickyard. It Was thereafter occupied,
continuously, down to the time of the commencement of the
action by defendant Eagle River Brick Company in connec-
t!ion with the brickyard forty, under an agreement with the
owner to convey the same to it for $200, as soon as cleared of
back taxes. The plaintiffs did not know of the occupancy
aforesaid till after the conveyance, hereafter mentioned, to
defendant ComMock. Some time subsequent to the death of
Mr. Kathan, under an agreement with one Colman, county
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26] AUGUST TEEM, 1909. 429
Kathan v. Comstock, 140 Wis. 427.
judge of Vilas coTinty, that title to all the lands should be
vested in one George in the interest of plaintiffs and the par-
ticular tract then be by him conveyed to the brick company
of which Colman was a stockholder, proceedings were had, in
form, in the county court of Vilas county, but in fact in the
county of Shawano, resulting in such title being, in form, so
vested, whereupon George conveyed the particular tract to
said brick company pursuant to such agreement.
The first of. the aforesaid tax deeds was made and recorded
in May, 1889, and the last one in May, 1898. After the
proceedings aforesaid, in form vesting the title in George,
defendant Pier represented* and caused to be represented to
plaintiffs that the statute of limitations had run in favor of
her tax deeds, effectually divesting the title to said lands from
plaintiffs and vesting the same in her. She did that for the
purpose of inducing them to convey, in form, the twenty-two
tracts of land to defendant Comstock for the sum of $30.
The particular tract then, and at the time of the commence-
ment of this action, was worth at least $200. Eelying upon
such representations which were in fact false, the tax-deed
titles as to such particular land having been extinguished
by the statute of limitations, the same having been occupied,
as aforesaid, such proceedings were taken in the circuit court
for Shawano county that the title of plaintiffs in all the
lands for the consideration aforesaid was vested in Comstock,
the deed to that effect being duly recorded. That was
accomplished in the interest of said Pier so that she might
control the patent title as well as the tax title to all said
lands. The next day after the conveyance to said Comstock
said Pier caused the particular tract to be mortgaged to
her daughter, the defendant Mclnlosh, ostensibly to secure
$250, but in fact to give her standing to commence an action
to quiet the title as against the brick company. Such action
was commenced, and, during the proceedings therein, plaint-
iffs became possessed of information as to the possession
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430 SUPREME COURT OF WISCONSIN. [Oct.
Kathan v. Comstock, 140 Wis. 427.
aforesaid extingtiishing the tax-title claim. Thereupon this
action was brought against all parties adversely interested to
vacate said deeds made by plaintiffs and the mortgage as well,
establish the title to said particular land in plaintiffs accord-
ing to the facts, and remove all douds existing thereon
created by the deed to George, the deed by him to the brick
company, the deed to Comstock, and the mortgage.
On such facts judgment was awarded to plaintiffs wholly
annulling the deed to Comstock, conditioned upon the con-
sideration paid by him as aforesaid being paid into court for
his use, and decreeing that the possession by the brick com-
pany was lawful but under a license revocable at the pleasure
of plaintiffs. Costs were awarded in plaintiffs' favor in one
bill against CowMock, Pier, and Mcintosh, and in favor of
the brick company against the same parties.
C. H. Van Alsiine, for the appellants.
For the respondents there was a brief by Wallrich, DUlett
<& Larson, and oral argument by Albert L. Larson.
Maeshall, J. The findings of fact do not appear, at any
point, contrary to the clear preponderance of the evidence.
Therefore, by a familiar principle, they must be regarded as
verities and the judgment based thereon right, if the conclu-
sions of law are warranted.
If the particular tract of land was in the actual possession
of Kathan, deceased, for the full three years after execution
and recording of the last tax deed, as found by the trial court,
and it seems, as above indicated, that such must be taken as
the fact, the tax titles were thereby extinguished, leaving
KcUe Pier without any interest in the land whatever at the
time she represented to the Kathan heirs that she had the
whole title imder her tax deeds for the purpose of inducing
them to part with the patent title to ComMock. Jones v.
CoUins, 16 Wis. 594; Pvlford v. Whicher, 76 Wis. 555, 45
N. W. 418.
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56] AUGUST TERM, 1909. 431
Kathan v. Comstock. 140 Wis. 427.
It is the settled law, not disputed at all by appellants, that
actual or constructive possession of land under a tax deed for
the full period of three years is necessary for operation of the
statute of limitations, and that interruption of the mere con-
-structive possession, created by recording a tax deed of vacant
and imoccupied land, by actual possession for any period by
the former owner within the three years after such recording,
turns the statute of limitations in favor of the former owner,
which, if not interrupted by action on the part of the tax-title
claimant or actual possession by him within the three years
after the recording of the tax deed, extinguishes all rights
under such deed. Cornell Univ. tr. Mead, 80 Wis. 387, 49
N. W. 815 ; Midlothian I. M. Co. v. Belknap, 108 Wis. 198,
84 N. W. 169.
No question is raised but that the proceedings whereby the
title to the land in question was conveyed to George and by
him to the brick company were void. It is insisted, however,
that the representation made by Kate Pier as to her tax titles
having extinguished the Kathan title, was not a representa-
tion of fact but was a mere legal opinion of the effect of the
tax deeds, and so was not fatal to the Comstoch deed.
We are unable to sustain the contention that the repre-
sentation was a mere opinion grounded on such pure mistake
of law as equity will not relieve from. She knew, or ought
to have known, that such a representation, in all reasonable
probability, was false, unless the land was vacant and unoc-
cupied at the time of the recording of her tax deeds and so
<»ntinued during the entire statutory period of three years.
Therefore, she knew, or ought to have knovni, that such repre-
-sentation, by necessary implication, carried the idea that such
vacancy and nonoccupancy had existed. So the representa-
tion was false and was of a fact material to the transaction
which it operated to bring about
It may be that Mrs. Pier did not know there was occupancy
-of the land preventing the bar of the statute from running in
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432 SUPREME COURT OF WISCOXSIK [Oct.
Kathan v. Comstock, 140 Wia. 427.
favor of her tax titles. It may be that there was no moral
turpitude characterizing the transaction. Whether there was
or was not is not material. In this class of cases fraud in law
is just as effective as fraud in fact If one in negotiating
with another in contractual matters makes misrepresentations
of fact material to the transaction for the purpose of inducing
such other to act thereon and such other reasonably does sa
act to his prejudice, he may avoid the result on the ground of
fraud, actual or constructive, — the latter really involving,
generally, mere mistake of fact, — and may have the aid of
equity jurisdiction to that end. It is not a sufficient answer
to the claim of such other for such person to say he made the
representations honestly, for it is, in law and equity, as re-
gards avoiding such a transaction, his duty to know whereof
he speaks or not to speak at all as of his knowledge. Thi&
court has many times spoken on that question. Davis v.
Nuziim, 72 Wis. 439, 40 N. W. 497 ; McEvrmon v. Yollmar^
75 Wis. 82, 43 N. W. 800; Gunther v. Ullrich, 82 Wis. 222,
52 N. W. 88 ; Hart v. Movlion, 104 Wis. 349, 359, 80 N. W.
599; Kravse v. Bitsacker, 105 Wis. 350, 81 N. W. 406;
Zunker v. Kuehn, 113 Wis. 421, 88 N. W. 605.
The statement made to the effect that it is sufficient to
put the party making misrepresentations in the wrong, if
he knew, or ought to have known, of their falsity, is not
grounded on principles of actionable negligence, but on the
idea that he who makes representations to another of material
facts for the purpose of inducing that other to enter into con-
tractual relations with him and which are liable to accomplish
the purpose without want of ordinary care on the part of sudi
other, is bound at his peril to know whereof he speaks. He-
ought to know, not because he should not act negligently, but
because under such circumstances he should not speak to the
facts at all for the purpose of inducing such other to act de-
pending on the truthfulness of what is spoken imless he knows
that his representations are true or expects to assume the
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26] AUGUST TEEM, 1909. 433
Kathan v. Cometock, 140 Wis. 427.
burden of warrantor of their tanithfulness. Palmer v. Gold-
berg, 128 Wis. 103, 111, 107 N. W. 478.
That one may reasonably act, not knowing the facts
involved himself, — ^but on the faith of representations by
another who desires to enter into contractual relations with
him, — as to conditions not presently observable, as in this
case, is so dementary that we will treat it as a matter not
requiring extended discussion in this opinion.
The daim is made that the court should not have set aside
the entire deed to. Comstoch because of the false representa-
tions as to the particular tract of land. It may be that a
showing might have been made which would have moved the
court, as one of conscience, to require a partial restoration of
the consideration paid by Comstock and on condition thereof
vacate the deed to him as to the one forty only. The court at
the close of the evidence fully acquitted Mrs. Pier of any
actual intention to perpetrate a fraud upon respondents. She
was found to have innocently, so far as moral turpitude is
concerned, made false representations as to a material fact
under such circumstances as to render the resulting trans-
action voidable. The court concluded a statement of his
views thus : "I think there is suflScient ground for a court of
equity to set aside the deed so far as it relates to this tract of
land.'^ Thereupon respondents' counsel said, addressing the
court: "I am perfectly willing for you to make it optional
with defendants whether the whole deed shall be set aside."
Then counsel for appellants addressed the court, saying:
"I prefer to take the judgment of the court." Thereafter
findings were filed closing with an order for judgment as we
find it
It may be that after what occurred counsel for appellants
should have offered evidence, enabling the court to apportion
the consideration paid by Comslock so as to require restora-
tion to him of the equitable amount which the particular tract
represented. It is the opinion of the court that they should,
Vol. 140 — 28
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434 SUPREME COURT OF WISCONSIN. [Oct.
Kathan v. Comstock, 140 Wis. 427.
and that since they failed to do so, it was not error for the
court to deal with the transaction as an entirety, as was done.
Certainly, as the case was submitted, there was no basis for a
judicial splitting up of the consideration.
In the judgment of the writer the offer of respondents'
counsel should, under the circumstances, have been regarded
as consenting to restore the whole consideration as a condition
of relief from the deeds and mortgage as to the one forty.
That is reasonable, it seems, since only the trifling sum of
$30 was involved. It is the writer's judgment that General
Bragg, the able counsel who represented appellants at the
trial, so understood it He is too good a lawyer to have sup-
posed it required consent, or acceptance of an option on his
part to enable the court to act upon such an offer so imder-
stood. He doubtless acted as he did, without reflection,
through caution as to prejudicing the rights of his clients on
appeal respecting the merits of the case, and was surprised
when the order for judgment was filed providing for a vaca-
tion of the deed as to the whole twenty-two forties, when the
only misrepresentation complained of was as to the one forty,
and the statute of limitations had, in fact, run aa to the other
twenty-one forties, so that the vacation of the deed as to them
could not be of any benefit to respondents. I think the trial
court should have interpreted the offer of respondents' coun-
sel as indicated and ordered judgment vacating the deed as to
the one tract on return of the $30, or a less sum if respond-
ents' counsel saw fit to make proof of the equitable amount
The court, however, is of the opinion, as indicated, that as
appellants' counsel elected to have the case submitted the trial
court did not conmiit error; that it was warranted in not
requiring restoration of the full consideration for the recovery
of the one forty and in not, on its own motion, requiring
proof enabling it to equitably divide the consideration so as
to deal with the deed and mortgage as to the one forty by
itself.
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26] AUGUST TERM, 1909. . 435
Roach V. Sanborn Land Co. 140 Wis. 435.
The foregoing covers all questions in the case which appear
to be of snflBcient moment to require special notice. All have
received consideration, resulting, in the opinion of the court,
that the judgment should be affirmed.
By the Court. — So ordered.
Timlin and Babnes, JJ., took no part
KoAon, Appellant^ vs. Sanbokit Land OoMPAinr, imp., Re-
spondent
Octo1)er & — October 26, 1909.
Lav) of the case: Decision on former appeal: Tax tiUes: Bettinf; aside
void tax deeds: Repayment "by mortgagee of taxes paid hy claimr
ant after acquiring equity of redemption: Appeal: Review:
Orders: Exceptions: Costs for printing.
1. The decision on a former appeal is the law of the case and,
whether right or wrong, is controlling upon a second appeal in
the same action.
2. Where under a mortgage or trust deed the owner of the equity
of redemption is bound to pay all taxes upon the land he cannol;
as against the mortgagee, ascribe such payment to his attitude
as claimant under a tax title, especially where the tax title is
void as a title and effective merely as a lien.
3. In an action by the holder of notes secured by a trust deed to set
aside certain tax deeds of the lands it was decided on a former
appeal that the tax deeds were void and that plalntifT was en-
titled to have them set aside on payment of the amounts for
which the lands were sold and "the amounts ol subsequent
> taxes paid by the tax-title claimant," with interest, as pro-
vided in sec. 12107i, Stats. (1898). Before the action was com-
menced defendant had acquired the fee title to the equity of re-
demption from the grantors in the trust deed, which deed con-
tained the usual covenant for pajrment of taxes. Held, that
taxes paid by defendant after acquiring such fee title were not
•^aid by the tax-title claimant" within the meaning of the for-
mer decision, and plaintifT was not bound, either by sec. 1210^
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436 SUPREME COURT OF WISCONSIN. [Oct.
Roach V. Sanborn Land Co. 140 Wis. 435.
or by the mandate on the former appeal, to reimburse defend-
ant therefor.
4. An order confirming and adopting a referee's report as to the
amounts to be paid by the plaintiff as a condition precedent to
his right to judgment setting aside tax deeds, is an order in-
volving the merits and necessarily affecting the Judgment, and
therefore, under sec. 2898, Stats. (1898), is a part of the judg-
ment roll and under sec. 3070 is reviewable on appeal from the
judgment, whether excepted to or not.
5. The conclusion of law involved in such order is reviewable on
appeal without exception to the findings of fact upon which it
is based or settlement of a bill of exceptions containing all the
evidence.
6. Costs are not allowed for printing of a case not In compliance
with Supreme Court Rule 6.
Appeal from a judgment of the circuit court for Forest
coimty : John Goodland, Circuit Judga Affirmed.
This action, commenced in November, 1902, asserted
plaintiff's lien by virtue of the ownership of oertain notes
secured by a trust deed on premises in Wisconsin, and claims
against the same lands by virtue of certain tax sales and deeds
held by various defendants, and sought to dear the title.
The sevwal answers set forth that all said tax rights had been
conveyed to the Sanborn Land Company, and that it owned
the lands by valid tax deeds. Upon a previous appeal it was
settled by this court that plaintiff's lien upon the land was
valid, that the tax deeds were void, and that plaintiff was
entitled to have said deeds set aside upon payment of the
amoimts for which the lands were sold "as well as the amounts
of subsequent taxes paid by the tax-title claimants," with in-
terest at fifteen per cent, in compliance with sec. 1210A,
Stats. (1898). Roach v. Sanborn L. Co. 135 Wis. 354, 114
N. W. 1102. After remittitur, the several amounts for which
the lands were sold and for all taxes subsequently paid
thereon up to and including those for the year 1907 were
ascertained upon reference, and the am.oTmt thereof, with
fifteen per cent interest, $3,575.46, was required to be paid
as a condition of judgment setting aside defendants' tax
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26] AUGUST TERM, 1909. 437
Roach ▼. Sanborn Land Co. 140 Wis. 435.
dooda. It appeared that in November, 1902, shortly before
the commencement of the suit, the defendant Sanborn Land
Company^ the holder of the tax deeds, acquired the fee title
to the equity of redemption by mesne conveyances from the
grantors in the trust deed, which by the way contained the
usual covenants for payment of taxes. Since said time the
claims under the tax deeds and the equity of redemption have
been in the same party, by whom the taxes have been paid.
It was' found by the referee that on November 15, 1902,
before suit^ plaintiff had tendered to the county clerk an
amount more than sufficient to redeem all of said tax liens
then existing, together with interest and charges thereon.
Plaintiff paid to the clerk of court under protest the said
amount of taxes and interest, whereupon judgment was en-
tered canceling the tax deeds and barring defendants from
any claim under them. After judgment an order was entered
to pay defendant Sanborn Land Company all the money so
deposited upon its filing bond conditioned on repayment of
any sum that may hereafter finally be determined should be
returned to the plaintiff. This appeal is taken from the judg-
ment by plaintiff.
Samuel Shaw, for the appellant
Fop the respondent there was a brief by Sanborn, Lamoreux
& Pray, and oral argument by A. W. Sanbonu
DoDOB, J. The appellant's principal contention upon this
appeal is that tibe defendant, who held the ostensible tax titles
on the mortgaged property, having acquired the fee title,
which was burdened with the duty of paying all taxes, is not
entitled to receive anything as a condition of declaring
plaintiff's mortgage interest free from the defendant's tax
liens. That ccmtention is, however, in contradiction of the
ecspress decision of this court upon the former appeal to the
effect that^ as a condition of canceling those tax deeds,
plaintiff should repay the cost and taxes with fifteen per cent
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438 SUPREME COURT OF WISCONSIN. [Oct.
Roach V. Sanborn Land Co. 140 Wis. 435.
interest. That decision is the law of the ease, and must
control, whether right or wrong. Cole v. Clarke, 3 Wis. 323 ^
McCord V. Eia, 117 Wis. 306, 94 N. W. 65; State v. Wis.
Cent. B. Co. 133 Wis. 478, 113 N. W. 952; Steele v. Kom,
137 Wis. 61, 120 N. W. 261.
It is also claimed, however, that the order of the trial court
went further than required by this mandate, for that the latter
only commands that there shall be paid all "subsequent taxes
paid by the tax-title claimants/^ and that taxes paid after
November, 1902, by the Sanborn Land Company, when it
held the fee title subject to a duty to pay taxes, cannot be
deemed to have been paid by it as the tax-title dainmnt^
although it also held certain tax liens. But the order for
payment includes those subsequent taxes. We see no escape
from this contention of plaintiflF. The law is well settled that
expenditure of money for taxes by the holder of the fee title
will be deemed a payment of the tax, and especially so as
against a mortgagee whose mortgage requires the holder of
the equity of redemption to pay all taxes. In such case the
owner of the equity of redemption cannot be allowed, as
against the mortgagee, to ascribe such payment to his attitude
as tax-title claimant^ especially where the tax title is void,
as a title, and effective merely as a lien. Smith v. Lewis,
20 Wis. 350, 354; Avery v. Judd, 21 Wis. 262; HiU v.
Buffington, 106 Wis. 525, 535, 82 N. W. 712 ; AUen v. Allen,
114 Wis. 615, 630, 91 N. W. 218. This would be the meas-
ure of the legal rights of the parties under sec 1210^, Stats.
(1898), and it is not to be presumed that the mandate of this
court was intended to extend any further, in the absence of
clear and unambiguous language. At the time of the former
decision there had been no showing that any taxes had been
paid subsequent to the commencement of the suit in Novem-
ber, 1902, or that the defendant claimed reimbursement of
any such taxes, and, while the court was informed of the fact
that the fee title had been acquired by the Sanborn Land
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26] AUGUST TERM, 1909. 439
Roach V. Sanborn Land Co. 140 Wis. 435.
Company, and might have inferred that probably somebody
had paid taxes between 1902 and April, 1908, when the
decision in this court was rendered, yet, in the absence of
assertion of any such claim, there is no necessary implication
that the words of the mandate were intended to include sub-
sequent taxes paid by the holder of the fee title. We there-
fore conclude that the plaintiff was not required, either by
sec 1210A. or by the mandate on former appeal, to reimburse
the defendant for any payment of taxes made after the com-
mencement of the 8uit> and that the order requiring it is
erroneous.
Eespondent protests that any error in this regard is ex-
cluded from consideration on this appeal by failure of the
plaintiff to reserve any exceptions or to settle a bill of excep-
tions containing all the evidence. These omissions exist, and
have occasioned us much embarrassment. We think, how-
ever, that the record discloses the error, although perhaps not
in its exact extent The report of the referee, which is part
of the record, expressly states that in the sum of $3,575.46,
found to be due the defendant up to July 8, 1908, is included
all taxes for the years 1895 to 1907, also that the total
amoimt necessary to redeem- on November 15, 1902, was only
$1,486.91. The order of the court is expressly founded
upon, and confirms and adopts, the report of the referee.
This order is one obviously involving the merits and which
necessarily affects the judgment, and therefore, by virtue of
sec. 2898, Stats. (1898), is part of the judgment roll and
of the record, and by virtue of sec 3070, Stats. (1898), may
be reviewed upon appeal, whether excepted to or not The
facts found are not questioned, but merely the conclusion of
law, reviewable without exception. It clearly appears from
the record, therefore, that the appellant was erroneously
compelled to pay the amount of all taxes assessed for the
years 1902 to 1907, inclusive, with fifteen per cent interest
thereon up to the 16th of December, 1908. The amount
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440 SUPKEME COURT OF WISCONSIN. [Oct.
Kunza v. Chicago <fe N. W. R. Co. 140 Wia. 440.
thereof must be ascertained and refunded ta appellant with
six per cent interest from the date when respondent received
the same, apparently Mardi 6, 1909. This can probably be
best accomplished by a direct order, when the amount is
ascertained, commanding the repayment^ enforceable either
under the contempt powers of the court or by authorizing
suit upon the bond filed by respondent. This can probably
be done without disturbing the judgment^ which, after such
repayment is accomplished, correctly adjudicates the rights
of the parties.
The printed case on this appeal is in no sense a compli-
ance with Supreme Court Rule 6, requiring it to contain
"an abridgment of the record so far as necessary to present
the questions for decision." It contains many pages of
whcdly irrelevant matter by no means necessary or pertinent
to the questions brought up on appeal, and it fails to contain
many essential parts of the record, whereby this court has
be^i driven, at the expense of mudi time and labor, to a
search, through the manuscript record. Rule 44 prohibits
the allowance of costs for such case.
By the Court. — Judgment affirmed, and cause remanded
for further proceedings in accordance with this opinion.
Appellant to recover costs, except for printing case.
KimzA, by guardian ad litem. Appellant, tb. Chicaqo &
NoETHWESTEEN Kailway Company, Respondent.
October 6 — October 26, 1909,
Railroads: Injury to employee riding on engine: Relation of parties:
Line of duty: Contributory and comparative negligence: Ques-
tions for jury.
1. Where, either by necessary implication or by the terms of hla
contract of service, a railway employee is required to travel on
the trains of the company to or from the place or places of his
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26] AUGUST TERM, 1909. 441
Kanza v. Chicago & N. W. R. Co. 140 Wis. 440.
active duty, he is deemed to be In the senrice of his employer
while so traveling, if he be In the proper place upon the train.
2. If such an employee knew or ought to have known that he had
no right to ride on the engine, but roluntarlly and without per-
mission went there for his own purposes, he could not be con-
sidered as an employee while so riding, but as a trespasser, or
at most a licensee.
3. Whether In this case the plaintiff, a pumper whose duties re-
quired him to ride back and forth dally on trains between
pumping stations, and who was injured by a collision while
riding on the engine, was justified in believing that he was
entitled to ride on the engine If he chose to do so, is held, upon
the evidence, to have been a question for the Jury.
4. If in such case plaintiff believed and was justified In believing
that he was entitled to ride on the engine while traveling be-
tween stations as his duties required, he was while so riding
a servant of the railway company and "engaged in the line of
his duty as such," within the meaning of subd. 2, sec. 1816,
Stats. (Laws of 1907, ch. 254), even though he at times volun-
tarily or by request did firing for the engineer; and the jury
should then determine whether he was guilty of contributory
negligence In so riding instead of riding in the caboose as he
might have done on the occasion in question, and, if so, whether
such negligence was slighter or greater than the negligence of
another employee which caused the collision.
SiEBECKER, J., dissents in part, being of the opinion that, upon
the established facts, as matter of law the plaintiff had a right
to ride on the engine and was not guilty of negligence la so
doing.
Appeal from a judgment of the circuit court for Lang-
lade county: John Goodland, Circuit Judge. Reversed.
Action for personal injuries. In 1907 and 1908 the de-
fendant maintained gasoline pumping engines at two of its
stations on the Ashland division, about fifteen miles apart^
viz., Monico Junction and Summit Lake, for the purpose
of supplying its tanks with water. In August, 1907, the
plaintiff, a young man eighteen years of age, was employed
to operate the two engines. The plaintiff lived at Summit
Lake, and his duty was to go to Monico Junction daily and
operate that engine half a day, and to return to Summit
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442 SUPREME COUET OF WISCONSIN. [Oct.
Kunza v. Chicago & N. W. R. Co. 140 Wis. 440.
Lake and operate that engine half a day. He was to receive
$35 a month and transportation back and forth, and the
company gave him a pass reading: "Pass one pumper, pump
man on AsL Div. bet Summit Lake and Monico Jet and
Crandon until December 31st, 1908, subject to conditions
on the back." The plaintiff performed his duties as pumper
continuously from the time of his hiring until March 5,
1908, and rode back and forth daily on the trains of the
company, sometimes riding on passenger trains, sometimes
on r^ular freight trains, and sometimes on extra freight
trains, as occasion served. When riding on freight trains he
sometimes rode in the caboose, but generally in the cab of
the engine with the engineer. While so riding he frequently
acted as fireman, either of his own volition or at request of
the engineer. He wished to become a fireman, and hence
was glad to act as such. While so riding in the engine he
was frequently seen by the various conductors, but no objec-
tion was ever made to his being so carried. A rule of the
company forbade any person riding in the engine save the
engineer and fireman without a permit from certain officials,
but the plaintiff did not know of the rule.
On the evening of March 5, 1908, the plaintiff, having
completed his pumping at Monico Junction for the day,
boarded the engine of defendant's south-boimd freight train
at that place and rode southward until a head-end collision
occurred with another freight train, caused by the negligent
failure of a telegraph operator at Pelican station to deliver
a train order. In this collision plaintiff was caught in the
gangway between the engine and the tender and so badly
injured that his leg had to be amputated. At the close of
the evidence the trial judge directed a verdict for the de-
fendant on these facts, and the plaintiff appeals.
For the appellant there were briefs by Morson & Mc-
Mahon, attorneys, and Kreutzer, Bird, Bosenberry ^ OJco-
neski, of coimsel, and oral argument by 8. J. McMahon and
C. B. Bird.
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26] AUGUST TEEM, 1909. 443
Kunza v. Chicago & N. W. E. Co. 140 Wis. 440.
William 0. Wheeler, for the respondent.
The following opinion was filed October 26, 1909:
WiNSLow, C. J. The respond^it's fiirst claim in support
of the judgment is that as a matter of law the plaintiff,
while riding upon the engine, was a trespasser. We cannot
agree with this contention. The weight of authority is to
the effect that had he been riding in the caboose or a pas-
senger car he would have been a co-employee with the train
crew and the telegraph operator. His contract for transpor-
tation was a part of his contract of service, and while being
transported in the cars of the company in the necessary
transaction of his duty as pumper he was as much in the
service of the company as when he was engaged in operating
one of the pumping engines. The authorities to this effect
are quite numerous and fairly unanimous. They will be
found collated in the opinion of Judge Lurton in Louis-
ville & N. R, Co. V. Stuber, 108 Fed. 934, 48 C. 0. A. 149,
54 L. R.A. 696. In order to perform his duties at the two
stations the plaintiff was required to make the trips back
and forth each day, and was expected and really obliged to
make the trips on the cars of the company. He was serving
the company as fully and completely while he was riding
from one station to the other in order that he might operate
the pump at the latter station as he was while he was actu-
ally operating the pump. In the case of Ewald v. C. <6 N,
W. B. Co. 70 Wis. 420, 36 K W. 12, 591, this court held
that an engine wiper while going to his work over a cus-
tomary pathway through the company's yard was actually
engaged in the service of the company, so that the trainmen
who were moving a freight train in the yard were his co-
employees. In the opinion in this case many of the cases
relied upon in the Stuber Case are cited and relied upon as
sustaining the position of the court, and indeed there would
tfeem to be no doubt that they are quite analogous* In brief ^
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444 SUPREME COURT OF WISCONSIN. [Oct.
Kunza v. Chicago A N. W. R. Co. 140 Wis. 440.
the principle is that where, either by necessary implication
or by the terms of his contract of service, a railway employee
is required to travel on the trains of the company to or from
the place or places of his active duty, he is deemed to be in
the service of his employer while so traveling, if he be in
the proper place upon the train.
So the initial question here is whether the plaintifF was
riding in a proper place at the time he was hurt If he
knew, or ought under the circimistances to have known, that
he had no right to ride in the engine cab, but voluntarily and
without permission went there for his own purposes, doubt-
less he could not be considered an employee while so riding,
but a trespasser, or at most a licensee. It is said that a
passenger who chooses to ride on the engine instead of in
the passenger car or caboose loses his character as a passen-
ger and becomes a mere licensee, even when he does it by
permission of the conductor. Files v. B. & A. R. Co. 149
Mass. 204, 21 N. E. 311. This court, however, has not so
held. The case of Leamm v. O. B. & W. R. R. 138 Wis.
693, 120 N. W. 510, is somewhat analogous. In that case
a stock owner, entitled by contract to ride on a freight train
in charge of his stod:, voluntarily rode in the car witb his
stock instead of in the caboose, and there was evidence tend-
ing to show that he did so with the knowledge and approval
of the conductor and brakeman, and it was held that it was
a jury question whether, under the circumstances, he was
not justified in believing himself entitled to ride in the
freight car.
Employees of the company frequently are expected and
compelled to ride upon engines, freight cars, foot-boards,
and ladders in order to successfully perform their duties.
In the present case it was quite apparent that it was not
expected that the plaintiff should always wait for a passen-
ger car or caboose to draw up by the side of his pump house
before he made his trip from station to station. His prime
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26] AUGUST TEKM, 1909. 445
Kunza v. Chicago A N. W. R. Co. 140 Wis. 440.
duty was to operate the pumps at each station daily, and in
order to get from one poet of duty to the other he was not
expected to pick and choose his train, but take that which
best served the purpose, whether it were passenger, r^ular
freight^ or extra freight; indeed, it appear that he some-
times rode in a light engine running alone.
The evidence shows, or tends to show, that the plaintiff's
father, who held the same position immediately prior to the
plaintiff's employment, was accustomed to ride on passenger
cars, freight cabooses, or engines, iU5 occasion served, to the
knowledge of the plaintiff; that when the plaintiff went to
work, at about eighteen years of age, he was given no instruc-
tions as to where he should ride; that he was not informed
of any rule prohiMting employees from riding in the engine
and knew nothing of such a rule; that immediately after
he commenced his work he began to ride on the engines of
freight trains with the consent and approval of the various
engineers and with the knowledge of the conductors; that he
frequently helped to fire the engine, either by request of the
engineer or of his own volition; that this practice kept up
continuously during his whole term of service without ob-
jection by any of defendant's oflScials ; that it was sometimes
necessary for the plaintiff, in order to ride on a freight train
at all, to get on the engine, because when the caboose passed
his pumphouse the train would be going too fast for him to
board it; and that most of his riding back and forth was
done on the engines of freight trains.
Under these circumstances we think it was a question for
the jury to determine whether, considering all the facts sur-
rounding his contract of service and his employment there-
under, the plaintiff was justified in believing that he was
entitled to ride on the engine if he chose to do so. If the
jury should so find, and further find that he did so believe
at the time in question, we see no reason to doubt that the
plaintiff, while so riding on the evening in question, was
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446 SUPKEME COURT OF WISCONSIN. [Oct.
Kunza v. Chicago <fe N. W. R. Co. 140 Wis. 440.
legally in the employment of the defendant and in the line
of his duty, notwithstanding the fact that he at times volun-
tarily or by request did firing for the engineer.
Should the jury answer these questions in the plaintiff's
favor the fact would thereby be established that the plaintiff
was a servant "engaged in the line of his duty as such" at
the time of his injury within the meaning of subd. 2,
sec. 1816, Stats. (1898), as amended by ch. 254, Laws of
1907, and the jury would then be required to determine
whether the plaintiff was guilty of contributory negligence
in riding in the engine as he did, instead of in the caboose
aa he might have done on the evening in question, and, if
so, whether such negligence was slighter or greater than the
negligence of the telegraph operator who failed to deliver
or transmit the train order.
It is not deemed necessary to discuss at length the detail
errors allied. The foregoing discussion of the case quite
clearly indicates the course which should be pursued when
the retrial takes place.
By the Coi/H.-— Judgment reversed, and action remanded
for a new triaL
The following opinion was filed November 30, 1909 :
SiEBECKER, J. {concwrrmg as to reversal hvi dissenting
05 to question for jury). While I concur in the reversal I
must dissent from the decision requiring submission of the
question of plaintiff's contributory negligence to the jury.
The court holds that the contract of employment required
the plaintiff to ride back and forth between the stations and
to use the facilities provided by the railway company. His
predecessor had customarily ridden on the engine. The offi-
cials of the company in charge of trains or engines and
having authority to compel the plaintiff to ride in some par-
ticular place on a train not only permitted but invited him
to ride on the engine. Under the employment particular
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26J AUGUST TERM, 1909. 447
Kunza v. Chicago & N. W. R. Co. 140 Wis. 440.
trains or any specific plac© on the trains had not been des-
ignated for him in which to ride. It was proper for him to
use a freight, passenger, extra, or whatsoever train would
carry him between the stations, and under the circumstances
the plaintiff practically was instructed to take the place on
whatever transportation was provided by the company which
would best suit his convenience. In the opinion of the court
it is stated: "Employees of railway companies frequently are
expected and compelled to ride upon engines, freight cars,
footrboards, and ladders in order to successfully perform their
duties." In my opinion the facts of this case establish a con-
tract between the parties which at times required the plaintiff
to ride upon the engine. Under the circumstances and con-
ditions of plaintiff's employment it results as a matter of law
that the plaintiff was within his legal right in selecting the
place on the engine on this trip, and in my opinion the jury
should have been so instructed. This would eliminate all
question of his contributory negligence as to the injury, for
I take it that no claim of contributory negligqnce is made ex-
cept that plaintiff was guilty of negligence in selecting the
place on the engine for this particular trip. If the plaintiff
was ordinarily or customarily lawfully riding on the engine,
then he could not have been negligent in selecting it for this
trip, and he was entitled to protection against the negligence
attributable to the company.
These considerations lead me to the conclusion that> under
the facts shown, the plaintiff could not be deemed guilty of
negligence in riding on the engine, and the court should have
so held. Under the evidence the question of the defendant's
negligence and the amount of the plaintiff's damages were
the only issues to be tried. Lucas v. M. £ 8t. P. R. Co. 33
Wis. 41 ; Eaton v. D., L. & W. B. Co. 57 K T. 382 ; Miller
V. C, St. P., M. & 0. R. Co. 135 Wis. 247, 115 K W. 794;
Leamm v. G. B. & W. B. B. 138 Wis. 693, 120 N. W. 610;
L. B. dc Ft, S. B. Co. V. Miles, 40 Ark. 298.
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448 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Northwestern C. R. Co. v. Willcute, 140 Wis. 448.
State ex bel. Northwestern Coal Railway Company,
Appellant^ vs. Willcuts, City Clerk, Respondent
OctoJ)er 6 — October tS, 1909.
Certiorari: Taxation: Railroads: Property devoted to pu1>Jic use:
Common carriers.
1. The question of the Jurisdiction of a hoard of review to assess
property for local taxation may be raised on certiorari,
2. Property of a railway company necessarily used in operating its
road is exempt from local taxation under sec. 1215 — ^25, Stats.
(Supp. 1906), if the use to which it is applied is a public use
under the articles of incorporation and charter of the company.
3. Whether the property of a railway company is devoted to a pub-
lic use is not determined by the extent of the use but by the
right of the public generally to use it and the fact that it is
used by all who desire to do so.
4. The mere fact that a large part of the business done by a railway
company is done for a coal company owned and controlled by
practically the same persons, does not deprive the railway com-
pany of its character as a common carrier or render its prop-
erty devoted to a private use, so long as it was in fact organized
as a common carrier and serves the public in that capacity, al-
though location and conditions limit the extent of such service.
Appeal from a judgment of the circuit court for Doug-
las county: A* J. Vinje, Circuit Judge. Reversed.
This is an appeal from a judgment quashing a writ of cer-
tiorari. The writ was issued to review an assessment of
plaintiff's property in the city of Superior. The city cleA
of the city of Superior made return to the writ showing the
action of the board of review respecting the assessment^ in-
cluding the evidence taken before the board.
It appears from the record before the court on motion to
quash that the assessors entered upon the assessm^at roll for
1908 lands and personal property used by the appellant in
the operation of its railroad in the city of Superior; that the
property consisted mainly of land on whidi the railroad was
constructed, side tracks, a roundhouse for storing engines,
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26] AUGUST TEEM, 1909. 449
State ex rel. Northwestern C. R. Co. v. Willcuts, 140 Wis. 448.
and a scalehoiise containing railroad scales and two locomo-
tives ; that the incorporators of the plaintiff company duly in-
corporated for the purpose of constructing, maintaining, and
operating the railroad in question for the carriage of freight
and passengers, and a patent was duly issued to plaintiff un-
der said articles of incorporation in December, 1892, author-
izing plaintiff to construct^ maintain, and operate a railroad
for public use in the conveyance of persons and property from
a point on Allouez Bay at or near the mouth of the Nemadji
river in Douglas county, Wisconsin," to some point on the
St. Louis river on the boundary line of the state in section 1,
town 48, range 15, Douglas county, a distance of about twelve
miles ; the plaintiff paid into the state treasury of the state
of Wisconsin the license fee required by law, and in March,
1908, a license was issued to plaintiff to operate its railroad
from January 1 to December 31, 1908, according to law ; that
the plaintiff has been assessed by the state board of assess-
ment during the years the state board has been in existence,
and previous to that time paid a license to the stAte for the
operation of the railroad in question ; that the plaintiff has
rendered reports to the railroad commission on its property
since June, 1901, and made reports to the interstate com-
merce commission since that time; that the plaintiff has a
tariff of rates prepared on the transfer of coal to connecting
lines, which rate is posted as requested by the interstate com-
merce commission and the railroad commission; that the
property of the plaintiff is shown on the statement issued by
the state board of taxation, showing valuation placed upon
railroads in the state for the year 1908, and is the same prop-
erty in qiiestion ; that this property was acquired by plaintiff
soon after its oi^anization, partly by purchase and partly by
condemnation.
It further appears that originally the road extended to the
St Louis river, and in 1899 a part of the road was sold to
the Great Northern Eailway Company; that the road now
Vol. 140—29
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450 SUPEEME COURT OF WISCONSIN. [Oct.
State ex rel. Northwestern C. R Co. v. Willcnts, 140 Wis. 448.
owned by the plaintiff is used for the transportation of freight
principally; that it accepts any business that is offered and
connects with the Great Northern, Duluth, South Shore &
Atlantic, Omaha, and Northern Pacific Railway Companies;
that its manner of handling freight is similar to that of other
terminal companies, ninety to ninely-five per cent or more
of which business is the transportation of coal ; that the north-
em terminus of the road is the coal dock, the other connecting
with other lines of railroad in the city of Superior; that the
company has about eight miles of track, including switch
tracks, the main line being a trifle less than three miles ; that
plaintiff owns the coal dock which is operated by the Pitts-
burgh Coal Company of Wisconsin ; that the principal busi-
ness of plaintiff is securing empty cars, taking them to the
dock, and returning them loaded with coal to the connecting
railroads; that the coal is received at the dock from boats,
but all coal received at the dock is not received by the Pitts-
burgh Coal Company ; that the dock at various times has han-
dled coal for other parties than the Pittsburgh Coal Company,
but the bulk of the coal is received by said company; that
plaintiff handled about 5,000 tons which was not purchased
from nor sold by the Pittsburgh Coal Company ; that plaint-
iff's tariff rate covered nothing but coal ; that it had no depot
and no cars of any kind, but had an office building; that
plaintiff is a separate corporation from the Pittsburgh Coal
Company, but the ownership of the stock is practically the
same; that the connecting lines of railroad paid plaintiff's
charge for switching coal and its side tracks were used for
storing loaded and empty cars; that plaintiff's road would
accept any freight or passengers or anything else — any kind
of cars that is presented for transportation — and has handled
passenger cars.
The property used in operating plaintiff road having been
assessed by the city of Superior for local taxation by the board
of review, this proceeding was brought to vacate and set aside
the assessment.
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26] AUGUST TERM, 1909. 451
State ex rel. Northwestern C. R. Co. ▼. Willcats, 140 Wis. 448.
For the appellant there was a brief by Orace <6 HudnM,
and oral argument by Q. B. Hvdnall.
Tho8. E. Lyons, for the respondent.
Kebwin, J. The sole question upon this appeal is, Was
the property of. the plaintiff taxable by the city of Superior ?
This question turns on whether the property is exempt from
taxation under the statute because of its being used for rail-
road purposes. It is the contention of respondent that the
railroad of plaintiff is not operated for public use and is not
a common carrier; therefore its property is subject to local
taxation. The plaintiff was organized under ch. 87 of the
statutes of this state for public purposes — ^for the carriage of
freight and passengers. No question is made upon this point,
but it is insisted that it is operating its railroad for a private
and not a public purpose; therefore its property so used is
subject to lotal taxation. It may be conceded, as insisted by
respondent, that certiorari reaches only jurisdictional errors ;
therefore, unless the property put upon the assessment roll
was not subject to taxation, the judgment below was right
The facts as they appear from the record are undisputed;
therefore the question is sharply raised whether the board of
review was acting without jurisdiction in assessing the prop-
erty of the appellant, and this question may be raised by cer-
tiorari proceedings. Stoic ex rel. Augusta v. Losby, 115 Wis.
57, 90 K W. 188 ; State ex rel. N. C. Foster L. Co. v. Wil-
liams, 123 Wis. 61, 100 K W. 1048.
Prior to the present railway tax law, "the tracks, right of
way, depot grounds, buildings, machine shops, rolling stock,
and all other property necessarily used in operating any rail-
road in this state belonging to any railroad company" have
been exempt from local taxation. Subd. 14, sec. 1038, Stats.
(1898). Sec. 1215—25, Stats. (Supp. 1906), provides that
"the tax and license fees imposed by this act shall be in
lieu of all other taxes on the property of such railroad com-
panies, necessarily used in the operation of said railroads in
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452 SUPREME COUKT OF WISCONSIN. [Oct.
State ex reL Northwestern C. R. Co. ▼. Willcuts, 140 Wis. 448.
this state." So, under the law in relation to the subject under
consideration, the question is whether the property is neces-
sarily used for a public or gwo^-public purpose in order to
enable the plaintiflF to perform its duty as a common carrier,
•and whether it was in 1908 used for such purpose. Dvluth,
S, S,<& A. E. Co. V. Douglas Co. 103 Wis. 75, 79 N. W. 34;
Chicago, St. P., M. & 0. R. Co. v. Douglas Co. 122 Wis. 273,
99 N. W. 1030 ; Merrill R. & L. Co. v. Merrill, 119 Wis. 249,
96 N. W. 686. The property owned by the plaintiff and at-
tempted to be taxed by the city of Superior was necessary to
enable the plaintiff to carry out its franchise obligations, and
was therefore not subject to taxation if the use to which it
was applied was a public use under the articles of incorpora-
tion and charter of plaintiff. Chicago & N. W. R. Co. v.
Forest Co. 95 Wis. 80, 70 N. W. 77 ; Chicago, M. <Sc 8t. P. R.
Co. V. Milwaukee, 89 Wis. 506, 62 N. W. 417 ; Wa^hum v.
Washburn W. Co. 120 Wis. 575, 98 N. W. 539 ; In re MU-
waukee 8. R. Co. 124 Wis. 490, 102 N. W. 401. It is with-
out dispute that plaintiff was regularly organized under ch. 87
for a public purpose, namely, to carry freight and passengers,
and a charter granted from the state for such purpose, and
annually from the time of its organization received a license
from the state to operate its road and paid the license fees.
But the argument is that it was doing a private business.
This argument is based upon the ground that its principal
business is not a general railroad business for the carriage of
freight and passengers, but is a private business. Several
cases are cited by respondents, but we shall refer to those only
in this court, and think it will be seen that they are not con-
trolling in the case now before us.
In Chicago & N. W. R. Co. v. Oshlcosh, A. <6 B. W. R. Co.
107 Wis. 192, 83 N. W, 294, the corporation was organized
to carry persons only, not passengers and freight, and it was
held that the statute does not authorize organizations to carry
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26] AUGUST TERM, 1909. 453
State ex rel. Northwestern C. R. Co. v. Willcnts, 140 Wis. 448.
passengers only; hence the articles did not show that the cor-
poration was a common carrier. Maginnis v. Knickerbocker
I. Co. 112 Wis. 385, 88 X. W. 300, is a case where the rail-
road company was organized as a purely private enterprise;
therefore did not have the power of eminent domain. To the
samje effect are McKivergan v. Alexander <& E, L. Co. 124
Wis. 60, 102 N. W. 332, and Wallman v. R. Connor Co. 115
Wis. 617, 92 N. W. 374. And in Wiscon^n W. Co. v. Wir
nans, 85 Wis. 26, 54 N. W. 1003, the question was whether
the company had the power to condemn land under its char-
ter, and it was held that the right turned upon whether the
property sought to be taken was necessary for public use.
Under the rule laid down in these cases it is said that the
use to which the plaintiff's property is put is not a public use,
because its principal business is carrying coal of the Pitts-
burgh Coal Company from the dock owned by plaintiff and
operated by the coal company, and that plaintiff has no sta-
tion or depot, and that one end of its line terminates at its
coal dock and the other where it connects with the Northern
Pacific, Omaha, Duluth, South Shore & Atlantic, and Great
Northern railway tracks, and that it has no facilities for
handling passengers, and is so situated that it receives prac-
tically no freight to handle except coal from its own dock
operated by the Pittsburgh Coal Company, the stock of which
latter company is owned by the same parties who own and
control the plaintiff company. The mere fact, however, that
a large part of the business of plaintiff was done for the Pitts-
burgh Coal Company in which it is interested did not deprive
plaintiff of its character of common carrier or render its prop-
erty devoted to a private use so long as it was in fact organ-
ized as a common carrier and serving the public in that ca-
pacity, although to a limited extent because of location and
conditions which limited such service. Kansas <& T. C. R.
V. Northwestern C. & M. Co. 161 Mo. 288, 61 S. W. 685 ;
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464 SUPREME COURT OF WISCONSIN. [Oct.
Btate ex rel. Northwestern C. R. Ck). v. Willcuts, 140 Wia. 448.
RUey V. Charleston U. S. Co. 71 S. C. 457, 51 S. E. 485.
Whether the property of plaintiff is devoted to a public use
is not determined by the extent of the use, but by the right
of the public generally to use it, and the fact that it is used
for public purposes by all who desire to use it
Upon the admitted facts as they appear from the record we
see no escape from the conclusion that the plaintiff was a com-
mon carrier and its property devoted to a public use, and,
though limited in the extent of such business, it was doing
the business of a common carrier. Its road and switch trades
were subject to use by all the public. The road carried for the
public generally between its termini, the coal dock and several
other railroads. It did not have the usual accommodations
for carrying passengers because of location and conditions,
and because of such location and conditions there were no
passengers to carry. But it held itself out ready and willing
to carry all passengers, and would accept any passengers or
any kind of cars presented for transportation over its line
without discrimination. It is true the business was largely
freight and largely the freight of the Pittsburgh Coal Com-
pany, but it is also true that between the termini of its road
the plaintiff served all people alike without discrimination
and in compliance with law applicable to common carriers,
and it was therefore at least doing the business of a conmioo
carrier, and ready and willing to do all business presented in
the locality it operated. It therefore stood on the same basis
as any other common carrier organized under the statute re-
specting the taxation of its property. Chicago <& N. W. R.
Co. V. Morehouse, 112 Wis. 1, 87 N. W. 849; Butte, A. & P.
R. Co. V. Montana U. R, Co. 16 Mont 504, 41 Pac 232 ;
Chicago, B. & N. R. Co. v. Porter, 43 Minn. 527, 46 N. W.
75 ; State ex rel. Duluth B. L. R. Co. v. District Court, 54
Minn. 34, 55 N. W. 816 ; Bridal VeU L. Co. v. Johnson,
30 Or^. 205, 46 Pac 790; Kansas <& T. C. R. v. NoHh-
western C. & M. Co. 161 Mo. 288, 61 S. W. 685; Chicago,
St. P., M. £ 0. R. Co. V. Douglas Co. 122 Wis. 273, 99
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262 AUGUST TEEM, 1909. 455
Foenes v. Dulath St R. Co. 140 Wis. 465.
K W. 1030; Dtduth, S. 8. & A. R. Co. v. Douglas Co. 103
Wis. 75, 79 N. W. 34.
We are convinced upon principle and authority that the
plaintiff is a common carrier, and that the property in ques-
tion used in operating its road was not subject to taxation by
the city of Superior; therefore the judgment quashing the
writ of certiorari must be reversed.
By the Court. — The judgment of the court below is re-
versed, and the cause remanded for further proceedings ac-
cording to law.
FosNES, Appellant^ vs. Dulitth Stbeet Railway Company,
Respondent
Octol>er $ — October 26, 1909.
Street railways: Injury to passenger alighting from moving car: Con-
trihutory negligence: Presumption as to intelligence,
1. Although a man had recently come to this conntry and did not
speak English it will be presumed that he was a man of ordi-
nary intelligence.
2. It was, as matter of law, negligence for a man of full age and
ordinary Intelligence, confronted with no exigency and labor-
ing under no fright or excitement, to attempt to alight from a
street car which to his knowledge was moving at the rate o£
six miles an hour, although the conductor had negligently failed
to stop the car as requested and the passenger — who had re-
cently come to this country, and was unable to speak English,
and was inexperienced in street railway travel — ^had at other
times seen passengers alight from moving cars, and concluded
that he was required to do so, and supposed it was perfectly
safe.
Appeal from a judgment of the superior court of Douglas
county: Chakles Smith, Judge. Affirmed.
The cause was submitted for the appellant on the brief of
Victor Lirdey, and for the respondent on that of Frwnk A.
Ross. '
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456 SUPREME COURT OF WISCONSIN. [Oct.
Fosnes t. Duluth St R. Co. 140 Wis. 455.
Timlin, J. In this case an objection to the reception of
any evidence under the complaint was sustained upon the
ground that no cause of action was stated therein. The
plaintiflF did not ask leave to amend, and judgment was
granted dismissing the complaint No error is assigned for
failure to grant leave to amend.
It at)peared by the complaint that the plaintiff, a passen-
ger upon a street railway car, requested the conductor to let
him off at a designated street, and the conductor knew the
wish of the passenger to get off at that street, but carelessly,
negligently, and wantonly failed and n^lected to stop the
car at that street without explanation to the passenger, and
the passenger then attempted to get off the car at this street
while the car was moving at the rate of six miles an hour, and
in so doing was accidentally thrown to the groimd and in-
jured. This presents a case of negligence on the part of tho
defendant and contributory negligence on the part of the
plaintiff. Six miles per hour must be considered a consider-
able speed, and indeed a high rate of speed, for the purpose
of alighting from a moving street car. The ordinary infer-
ence of contributory negligence from such attempt recognized
in Champane v. La Crosse C. B. Co. 121 Wis. 554, 99 N. W.
334, and Hardy v. Milwaukee St. R. Co. 89 Wis. 183, 61 N.
W. 771, is apparently sought to be overcome by the pleader
by the following additional averments in the complaint : The
passenger recently arrived in the United States from Nor-
way, did not speak the English language, was inexperienced
in street railway travel, and had seen other passengers at other
previous times alight from the cars of the defendant while
siT^h cars were in motion at street crossings; and concluded
that he was required to get off the car while it was in motion,
and supposed it was perfectly safe for him to get off ,the car,
although it was moving at the rate of six miles an hour.
Assuming in support of the complaint that the conductor
understood the language of plaintiff, that plaintiff knew he
was approaching his intended place of alighting, that this was
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26] AUGUST TERM, 1909. 457
Monaghan v. Northwestern Fuel Co. 140 Wis. 457.
a proper and usual place at which to stop the car, and that the
"other previous times" when he had seen passengers alighting
while the cars were in motion were sufficiently recent and suf-
ficiently numerous to induce him to believe this was the
American way, but not sufficiently numerous to remove his
inexperience in street railway travel, still we must assume
that there was no urgency beyond the risk of his being carried
a square or thereabouts past his destination. Notwithstand-
ing he did not possess the felicity of having lived long in this
coimtry, or of speaking the English language, he must be con-
sidered a man of ordinary intelligence. Rahles v. J. Thomp-
s(m <S> Sons Mfg. Qo. 137 Wis. 506, 118 N. W. 350, 119 N.
W. 289 ; Johanson v. Webster Mfg. Co. 139 Wis. 181, 120 N.
W. 832. While it cannot be said as matter of law that in all
cases alighting from a moving street car constitutes contribu-
tory negligence, yet this may justly be said in a case where
the party alighting is a man of full age and ordinary intelli-
gence laboring under no fright or excitement, confronted with
no exigency, and the car is to his knowledge moving at the
rate of six miles an hour. It follows that the judgment of
the superior court should be affirmed.
By the Covrt. — ^The judgment of the superior court is af-
firmed.
Monaghan, Respondent, vs. Northwestern Fuel Com-
pany, Appellant
October 6— October 26, 1909.
Appectl: Exceptions: Instructions to jury: Master and servant: In-
juries from unguarded machinery: Proximate cause: ContrihU'
tory negligence: Evidence: Competency: Opinions of experts:
Improper remarks by counsel: Questions for jury: Excessive
damages,
1. Rulings refusing requested Instructions win not be reviewed on
appeal in the absence of exceptions thereto.
2. The jury were instructed that in answering, in the special ver-
dict, a question as to whether the machinery in which plaintiff
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468 SUPREME COURT OF WISCONSIN. [Oct.
Monaghan v. Northwestern Fuel Ck). 140 Wis. 457.
was injured was so located as to be dangerous to employees in
the discharge of their duties, they should consider "among other
things" the location of the machinery with reference to where
it became reasonably necessary for employees to be situated in
the discharge of their duties in and about it, and its situation
and surroundings as shown by the evidence. Held, that pre-
sumably the jury understood that the "other things" were lim-
ited to things shown by the evidence, and in the absence of
any request for an instruction to that effect there was no preju-
dicial error.
8. In the absence of a request therefor, omission to give any in-
structions relative to a question submitted for special verdict
is not error.
4. It is not error to give to the jury verbatim the definition of proxi-
mate cause found In Deisenrieter v. Kraus-Merkel M, Co, 97 Wis.
288, approved in Feldschneider v, O., M. d^Bt. P. R. Co. 122 Wis.
431.
6. Upon the issue of contributory negligence of a servant who was
injured while oiling machinery, evidence as to how other serv-
ants had done the same work was competent to show that he
was doing it in the usual and ordinary way.
6. The opinion of a physician as to the physical condition of plaint-
iff, the necessity of an operation, and its effect, based on plaint-
iff's testimony as to his condition and upon an examination
made by the witness after the injury, was competent, its weight
being for the jury.
7. A model produced by plaintiff having been excluded because in-
correct, remarks of plaintifTs counsel in his argument to the
jury to the effect that defendant produced no model because It
would be less favorable to it than that produced by plaintiff,
are held not ground for reversal. In view of an instruction to
the jury that no inference adverse to defendant should be drawn
from the argument of plaintiff's counsel, except in so far as that
argument was based on testimony.
8. What may be a proper and sufficient barrier or guard with refer-
ence to servants having no duty to perform about dangerous
machinery is not necessarily so for one who, in oiling such ma-
chinery, is obliged to lean over the barrier and bring his hands
and other parts of his body in close proximity to rapidly re-
volving gearings. Such a servant is entitled to have those gear-
ings securely guarded or fenced for his safety. If practicable
without seriously impairing the efficiency and use of the ma-
chinery.
9. Sec. 1636;i, Stats. (Supp. 1906; Laws of 1905, ch. 303), providing
that, in an action by a servant for personal Injuries caused by
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26] AUGUST TERM, 1909. 459
Monaghan y. Northwestern Fael Co. 140 Wis. 457.
negligent omission of the master to securely guard dangerous
machinery, the fact that the servant continued in the employ-
ment with knowledge of such omission shall not operate as a
defense, has eliminated assumption of risk from the defense of
contributory negligence In such cases.
10. A man forty-three years old, earning $2.75 per day, sustained in-
juries necessitating amputation of his left arm dose to the
shoulder; his nose was broken and his face disfigured; three
ribs were fractured, and his side badly lacerated and perhaps
permanently Injured. Held, that a verdict awarding |14,500
damages, upheld by the trial court, should not be disturbed on
appeal. Babnes, Mabsiiaix, and Dodge, JJ., dissent
11. Marshall, J., is of the opinion that under sec. 2878, Stats. (1898),.
where damages awarded are so excessive as to show passion or
prejudice on the part of the Jury the verdict may be set aside
as being "contrary to the evidence;" and that it may be set
aside "for excessive or inadequate damages" although there
was no passion, prejudice, or improper motive.
Appeal from a judgment of the circuit court for Douglas
county : A. J. Vin je, Circuit Judge. Affirmed.
Action to recover damages for a personal injury. Plain t-
iS was employed by defendant on its coal dock. Coal was
elevated and screened at such dock, and the necessary power
was furnished by electric motors. Plaintiff had been in
charge of one of such motors for about eleven months before
the injury. The motor was stopped and started by plaintiff
on signal, and it was his duty to oil the machinery connected
therewith and keep it in running order. Power was deliv-
ered from said motor through a number of cogwheels in close
proximity thereto. The motor stood about two feet above the
platform leading to it The machinery and motor appear to
have been practically unapproachable on three sides. They
could be approached by a platform on the fourth side^ which .
platform was used by the operator in oiling the machinery.
The gearings were in line with the platform. There was a
railing, made of scantling, nearly three feet in height near the *
end of the platform and in dose proximity to the motor.
There were boxes in the bearings for the purpose of oiling
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460 SUPEEME COURT OF WISCONSIN. [Oct.
Monaghan v. Northwestern Fuel Co. 140 Wis. 457.
them. The gearing in which plaintiff was hurt was in the
neighborhood of three feet from the top of the railing in a
downward and westerly direction from snch railing. It was
necessary for plaintiff in oiling the bearings in question to
lean over the railing, and, owing to the prevalence of coal
dnst^ it appeared to be necessary for the oiler at times to bend
over some distance so as to bring his eyes in dose proximity
to the oil cnps to enable him to see them. While plaintiff
was leaning over such railing his sleeve was caught in one of
the gearings and he was dragged over the railing and into the
machinery and badly injured. The alleged negligence of the
defendant consisted in its failure to cover the gearings in
which plaintiff was hurt.
The jury found (1) that the machinery in which plaintiff
was injured was so located as to be dangerous to employees in
the discharge of their duties ; (2) that the defendant failed to
have the machinery securely guarded or fenced; (3) that the
failure to securely guard or fence was the proximate cause of
plaintiff's injury; (4) that the plaintiff was not guilty of any
want of ordinary care which contributed to produce his in-
jury; (5) that the plaintiff sustained damages to the amount
of $14,500 by reason of his injury. On such verdict judg-
ment was rendered in favor of plaintiff.
For the appellant there was a brief by P. /. McLaughlin,
A, E. Boyesen, and Solon L. Perrin, and oral argument by
Mr. McLaughlin and Mr, Perrin,
W. P. Crawford, for the respondent,
Baenes, J. . The appellant assigns as error: (1) The re-
fusal of the court to give certain instructions which were re-
quested; (2) the charge of the court under the first question
in the special verdict; (3) failure of the court to give any
charge in relation to the second question in the special ver-
dict; (4) giving an erroneous definition of proximate cause;
(6) receiving incompetent testimony prejudicial to the de-
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26] AUGUST TERM, 1909. 461
Monaghan v. Northwestern Fuel Co. 140 Wis. 467.
fendant; (6) prejudicial and improper renLarks made to the
jury by plaintiff's counsel; (7) refusal of the court to direct
a verdict in defendant's favor, (a) because the gearing upon
which plaintiff was injured was sufficiently guarded or fenced,
and (b) because the plaintiff was guilty of contributory neg-
ligence; (8) refusal to set aside the verdict because the dam-
ages assessed were excessive.
1. No exception was taken to the refusal of the court to
give the instructions requested, hence the rulings of the trial
judge in this regard cannot be considered in this court
2. By the first question in the special verdict the jury was
asked : "Was the machinery in which plaintiff was injured so
located as to be dangerous to employees in the discharge of
their duties ?" The court charged the jury :
"In answering this question you will consider, among other
things, the location of the machinery in question with refer-
ence to where it became reasonably necessary for employees
to be situated or placed in the discharge of their duties in and
about it, and its situation and surroundings as shown by the
evidence."
The criticism upon the charge is the use of the words
"among other things;" it being urged that the instruction
permitted the jury to consider matters outside of the evidence.
In answering the question there were a number of things that
the jury might very properly have considered aside from the
specific ones mentioned by the court^ as, for instance, the
height of the railing, its proximity to the gearing, and the
extent to which the vision was obscured by coal dust, as well
as other items of evidence. Presumably the jury imderstood
that the "other things" they might consider should be re-
stricted to such things as were shown by the evidence. In the
absence of a request to charge that extraneous matters should
be excluded from consideration, we do not think any prejudi-
cial error was committed, if it be conceded that the language
used was not as guarded as it might have been.
3. No request was made upon the court to give any charge
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462 SUPREME COURT OF WISCONSIX. [Oct.
Monaghan v. Northwestern Fuel Co. 140 Wis. 457.
in relation to the second question in the special verdict. In
the absence of such request no error resulted. Newton v.
Whitney, 77 Wis. 515, 46 N. W. 882. Moreover, we da not
^d any exception in the record to raise this question.
4. The definition of "proximate cause'' given by the court
was taken verbatim from Deisenrieter v. Kraus-Merkel M.
<Jo. 97 Wis. 279, 288, 72 N. W. 735, which definition is ap-
proved in Feldschneider v. C, M. <& St. P. B. Co. 122 Wis.
423, 431, 99 K W. 1034, and in other cases, and it is un-
doubtedly one that is very generally given by trial courts. It
is probable that counsel could improve on this definition, but
it has been so often laid down for the guidance of trial courts,
and they have been so frequently admonished to follow it, that
it would hardly be consistent to hold that error resulted from
so doing.
5, It is urged that the court erred in receiving testimony
tending to show how other servants of the defendant oiled the
machine prior to the plaintiff's employment^ where they stood
when oiling it^ the condition of the light at the time of the in-
jury, and the fact that the gearings were uncovered. It was
competent for the plaintiff to show on the issue of contribu-
tory negligence any pertinent facts tending to establish ordi-
nary care on his part The fact that he oiled the machinery
in the usual, customary, and ordinary way could best be es-
tablished by showing how others had done the same work, and
we think the testimony was not incompetent
Dr. Sarazin was permitted to testify under objection that,
assuming the statement of the plaintiff to be true as to his
condition, he thought there was dead bone in the ribs, and
that an operation to remove the same would be necessary, and
that sudi removal would weaken the side. It is urged that
the doctor had made no sufficient examination and had no
sufficient information concerning the plaintiff's condition to
qualify him to give the testimony complained of. The evi-
dence was based on the statement made by the plaintiff on the
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26] AUGUST TERM, 1909. 463
Monaghan v. Northwestern Fael Co. 140 Wis. 457.
witness stand as to his condition, and upon an examination
made by the witness after the injury. The evidence was com-
petent, even though it might not have been convincing. The
weight to be accorded to it was for the jury to pass \xpoJL
6. The plaintiff produced a model on the trial which the
<»urt refused to receive in evidence because it was not cor-
rect In his argument to the jury plaintiff's counsel stated in
substance that the reason why defendant did not produce a
model was that if one had been produced it would have been
more unfavorable to it than that made by plaintiff. Excep-
tion was taken to such remarks. The court charged the jury :
^*Xo inference adverse to the defendant should be drawn from
the argument of plaintiff's ooimsel, except in so far as that
argument is based on testimony." In view of this instruo-
tion and of the nature of the remarks and the probable cause
of their being made, no error resulted.
7. It is argued with much force that this court should say
as a matter of law that the machinery in question was suffi-
ciently fenced or guarded, and that therefore no negligence
or breach of statutory duty was shown on the part of the de-
fendant, and also that plaintiff was guilty of contributory neg-
ligence. These are the principal contentions relied on for a
reversal of the judgment. Had the injury happened to some
employee who had no duty to perform about the machinery in
•question, the argument that plaintiff had complied with its
statutory duty to sufficiently fence or guard this machinery
would be convincing. The barrier was nearly three feet high
and was substantial. But what might be a proper and suffi-
<5ient safeguard for the ordinary employee might not be so for
the plaintiff, who in the performance of his duties was obliged
to lean over the barrier and bring his hands and other parts
of his body in dose proximity to rapidly revolving gearings.
The plaintiff was as much entitled to have these gearings se-
•curely guarded or fenced for his safety as wjere other em-
ployees. Manifestly, a covering over the gearings in his case
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464 SUPREME COURT OF WISCONSIN. [Oct.
Monaghan v. Northwestern Fael Co. 140 Wis. 457.
would perform a function which a mere fence or barrier
would not. There was no attempt to show that it was im-
practicable to cover such gearings without seriously impairing
the eflSciency and use of the machinery, and we think the ques-
tion of defendant's failure to sufficiently fence or guard the
gearings in question, under the facts of this case, was fairly
one for the jury to pass upon.
If we eliminate from the defense of contributory negligence
the fact that plaintiflF continued in his employment a period
of eleven months knowing its dangerous character, there i&
nothing to be found in the evidence that would warrant a
court in holding as a matter of law that plaintiff could not
recover because he was shown to be guilty of contributory
negligence. Sec 1636;;, Stats. (Supp. 1906 ; Laws of 1905,.
ch. 303), provides that the fact that an employee remains in
an employment with knowledge that the employer has not
sufficiently guarded or fenced dangerous machinery shall not
operate as a defense to such an action as is here brought
This statute has eliminated assumption of hazard from the
defense of contributory negligence in the class of cases to
which it is applicable. Elotz u. Power <& M. M. Co. 136
Wis. 107, 109, 116 N. W. 770 ; Lind v. Uniform 8. & P. Co.,
ante, p. 183, 120 N. W. 839. We perceive no error in submit-
ting to the jury for consideration the question of negligence
on the part of the defendant and want of ordinary care on
the part of the plaintiff.
8. The plaintiff was forty-three years old at the time of
his injury and was earning $2.75 per day. Sudi injury
necessitated the amputation of his left arm close to the
shoulder. His nose was broken and the injuries to his face
have resulted in disfigurement. Three of his ribs were frac-
tured and his side was badly lacerated and had not entirely
healed at the time of the trial. There was some testimony
given tending to show that the injury to the side is permanent,
although such evidence is of an unsatisfactory character.
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26] AUGUST TERM, 1909. 465
Monaghan v. Northwestern Fuel Co. 140 Wis. 457.
The appellant urges that the damages awarded as compensa-
tion for the injuries detailed are excessive and should be re-
duced. In view of the deference that should be paid to the
finding of a jury on this as well as on other questions of fact,
and because the trial court who heard the testimony refused
to say that the verdict was excessive, this court does not feel
warranted in disturbing it The writer does not concur in
this conclusion, and thinks that the plaintiff should be re-
quired to remit a substantial sum from the judgment or to
submit to a new triaL This view is concurred in by Justices
Masshaix and Dodge.
By the Court. — Judgment affirmed.
Mabshall, J. (dissenting in part). As indicated in the
court's opinion I concur with the writer thereof and Mr.
Justice DoDOB that the verdict is excessive. I apprehend
that if we were permitted to appraise the damages as an
original matter they would not readi near the jury's figure.
The idea prevails that this court should not, in any case, re-
verse the trial determination on such a question unless the
verdict appears so out of all reason, as to indicate, clearly,
that there was passion or prejudice or perversity of some sort
in reaching the result
If I were to treat the subject here according to the stated
prevailing view, and it must be conceded there is support
for such view in the decisions of this court, I would say the
recovery is so large as to leave the suggested fatal diaracter-
istic clearly inferable.
IIow are we to determine that the jury in such a case were
actuated by passion or prejudice? Manifestly, not, neces-
sarily, by seeking to discover whether they acted honestly.
Godfrey v. Godfrey, 127 Wis. 47, 106 N. W. 814. A person
may be moved by passion or prejudice to do or not to do a
particular thing and yet be free from the slightest taint of
moral or legal turpitude. We cannot determine whether a
Vol. 140—30
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466 SUPREME COURT OF WISCONSIN. [Oct.
Monaghan v. Northwestern Fuel Co. 140 Wis. 457.
jury were actuated by passion or prejudice by considering
what amount of money a person would take as a fair equiva-
lent for an arm, other disablements, pain caused thereby and
impaired ability to work, and the future loss in that regard
he will be reasonably certain to suffer, — in case he were
given opportunity to make such exchange by treaty. We
cannot determine the matter by the ability of the wrongdoer
to respond in damages. The theory of the law is compensa-
tion. The damages would not be greater if caused by inad-
vertence of an individual of means so small that the amount
for a single accident would be destruction, in that it would
cast the defendant into bankruptcy, than if caused by one of
great wealth. The subject has a deep practical common sense
side. Every industrial accident whether caused by negli-
gence of employer or employee or of both, or without the
inadvertence of any one, involves a sacrifice upon industry's
altar which must, inevitably, in the end, be cast upon the
consumers of the products of industry. Pity 'tis that these
inevitable sacrifices fall first upon the weakest members of
society; those who work and must work within the zone of
danger, and do not reach the final resting place by absorption
into the general cost of living of the whole mass who are di-
rectly or indirectly served by the industry from which, from
time to time, such distressing incidents must spring, without
the waste and injustice of the present system, which repairs
to some extent primary losses in a part only of the instances,
leaving the others without any remedy at alL
Under our defective and lamentably imperfect system in
assessing damages the question, in reality, is not what is a
full equivalent for the injuries in the general sense, i. e. what
would one take in money to repair the injuries, but what is
a reasonable reparation under all the circumstances. How
much for the mere inadvertence causing the loss, considering
all interested, the employer who required the service in order
to carry on his business, the employee who needed the em-
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26] AUGUST TERM, 1909. 467
Monaghan t. Northwestern Fuel Co. 140 Wis. 457.
ployment, and the great consuming public which needed the
combined service of employer and employee, should the latter
have as an equivalent for those elements of loss which are not
measured by any standard of comparison ? That presents a
practical question to be solved by sound judgment
There is no market value for pain and suffering and parts
of the human body. What sum of money would one take in
exchange for an arm or a leg or an eye ? Who can say with
any degree of certainty what such things are worth ? Who
can say with that degree of certainty ordinarily necessary
for a verdict? No sum of money can be named as the full
equivalent for the severe mutilation of one's body. The
whole idea of a full money equivalent contemplates an impos-
sibility. All courts really recognize that in their declared
helplessness to deal with destructive verdicts. The real idea,
after all, is that he who, by breach of duty involving action-
able inadvertence, injures another in his person should, as a
penalty so to speak, make good to such other reasonably his
loss. The fault in such a case is not criminal. If it were
even of that high degree the law would not, as a rule, punish
destructively. Mere inadvertence causing personal injuries
are misfortunes attributable to human infirmity; never to
human intention:
The foregoing suggests, as before stated, that the assess-
ment of damages in a case of this sort presents a practical
question to be solved by sound judgment not necessarily in-
volving an exchange of equivalents on a money basis.
Does it not seem that tested by such judgment an injury,
which, though severe, is so repaired by nature as to leave the
afflicted one sound in mind and body to a large degree and
capable of engaging in gainful occupations, should not be
compensated to an extent which will yield him more than his
previous customary income for life and leave at the end a
fortime far in excess of what the average of his class ordi-
narily accumulates during a life of industry? Such an
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468 SUPKEME COURT OF WISCONSIN. [Oct.
Monaghan v. Northwestern Fuel Co. 140 Wis. 457.
award by the jury, it seems, evidences passion or prejudice,
assuming, as we must^ that they had a proper conception of
the basis for measuring such losses.
We may well claim that the numerous laws, world wide,
for repairing personal industrial injuries, accurately portrays
the highest wisdom of our time in the light of generations of
study and experience. By no one of such laws are such acci-
dents regarded as justly «ititling the injured one to com-
pensation on the basis embodied in the verdict here. All are
grounded on the idea of what an industry should reasonably
contribute, under all the circumstances, to repair such unin-
tentional injuries, the full money equivalent being regarded
as impossible of ascertainment and impracticable of being
rendered.
There is another side which I take this opportunity of
discussing. The practice of setting aside verdicts and grant-
ing new trials to prevent a miscarriage of justice is a develop-
ment from the judicial ^q)erience of ages. By the early
common law it is probable there was no such practice. In
time courts came to grant new trials whenever it appeared,
clearly, that otherwise injustice would be done. Later the
practice came to be governed by pretty well defined rules.
One of them was that a verdict assessing daniages in a case
of this sort would not be set aside as excessive unless it ap-
peared that the jury were actuated by passion or prejudice.
It was compion to raise the question on a motion to set aside
the verdict as contrary to the evidence. In many jurisdic-
tions that particular ground for a new trial has been carried
into the Code by a provision for a new trial in case of "excess-
ive damages appearing to have been given under the influ-
ence of passion and prejudice." That phrasing is found in
most Codes. 14 Ency. PL & Pr. 759. Ours is one of the
exceptions.
In some jurisdictions the particular ground for a new trial
above mentioned is held to be included in the one that the
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26] AUGUST TERM, 1909. 469
Monaghan y. Northweetern Fuel Co. 140 Wis. 457.
verdict is "contrary to the evidence.'' Our sec. 2878, Stats.
(1898), has such ground, and, as before indicated, no such
ground as excessiveness of damages under the influence of
passion or prejudice. Since such precise common-law ground
falling under the general scope as stated was not taken out of
it and made one by itself, as is commonly done, it seems our
Code-makers intended the scope of the general common-law
ground as incorporated into the statute (sec. 2878) should
remain as before.
That a motion to set aside a verdict as contrary to the
evidence is broad enough under the Code to include improper
assessments of damages through passion or prejudice or other
perversity was early held in Eminons v. Sheldon, 26 Wis. 648.
The court dealt with an inadequate verdict evincing passion
or prejudice. It was held, on the ground of inadequacy
evincing ignorance or perversity, to be contrary to the evi-
dence. Our Code did not at first provide for granting a new
trial for inadequacy of the verdict The case cited was
followed in Robinson v. Waupaca, 77 Wis. 544, 546, 46
K W. 809, and Whitney v. Milwaukee, 65 Wis. 409, 27
K W. 39.
I am not unmindful that this court has said a verdict
cannot be successfully challenged on appeal for excessiveness
in the absence of a motion in the trial court on that precise
ground. Sloteman v. Thomas & W. Mfg. Co. 69 Wis. 499, 34
K W. 225 ; Collins v. Janesville, 99 Wis. 464, 75 N. W. 88 ;
Howard v. BeldenvUle L. Co. 134 Wis. 644, 114 N. W.
1114; Duify v. Radke, 138 Wis. 38, 119 N. W. 811. But in
sudi .instances a distinction was not drawn between mere
excessiveness and excessiveness through passion or prejudice.
The former, it seems, is within the special statutory ground
of fatal excessiveness, if not all such ground contemplates.
I am inclined to the belief that it is the latter ; that the Code-
makers used the term "contrary to the evidence" in the same
sense it had formerly been used, i e. as including excessive-
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470 SUPKEME COURT OF WISCONSIN. [Oct.
Monaghan v. Northwestern Fuel Co. 140 Wis. 457.
ness through passion or prejudice or perversity of some sort,
and to add a new ground covering cases of mere excessiveness,
and so the words "through passion or prejudice," or similar
words found in most Codes, were omitted from ours.
The idea early advanced by this court, as stated, that a
motion to set aside a verdict on the groimd of its being con-
trary to the evidence covers the defect of being characterized
by passion or prejudice is found in the decisions of many
states, as indicated in 14 Ency. PI. & Pr. 766, note 1. Many
of such authorities deal with inadequate verdicts, but it is
hardly logical to say a verdict characterized by passion or
prejudice is contrary to the evidence where it is too small and
not where it is too large.
I am constrained to believe the practice has fallen some-
what into confusion by failure to distinguish between a per-
verse verdict, relievable from at common law, and under the
statute by motion to set aside as contrary to the evidence, and
a merely excessive verdict, made by the Code a separate and
independent ground for a new trial, one unknown at common
law.
While there are decisions of this court to the effect that to
warrant granting a new trial because the verdict is too large
it must satisfactorily appear that it is the product of pas-
sion or prejudice, there are others where relief was granted,
passion or prejudice not being suggested, and still others
where die verdict was very materially reduced as excessive
and the jury at the same time were expressly acquitted of any
fault otter than mere error of judgment. Such was Baker v.
Madison, 62 Wis. 137, 22 N. W. 141, 583. A verdict for
$6,000 was condemned as excessive, the plaintiff being per-
mitted at his option to take judgment for $3,500. It was
contended that the court could not reverse for excessiveness,
unless the damages seemed "flagrantly outrageous," so excess-
ive as to lead to the conclusion that the jury were actuated
by "passion or prejudice." Ancient common-law cases and
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26] AUGUST TERM, 1909. 471
Monaghan v. Northwestern Fuel CJo. 140 Wis. 457.
decisions from other jurisdictions, with some cases decided
by this court not dealing with the Code on the question, were
relied on. Relief was granted notwithstanding, as said in
the opinion of the court, that the verdict was "not so large as
to cause the inference that the jury were controlled or influ-
enced by passion, prejudice, or bias, or any improper motive."
In Murray v. Buell74: Wis. 14, 17, 41 N. W.IOIO, the
impression is given that the element of passion or prejudice
may be absent and the verdict yet be set aside as excessive.
In somewhat contradictory language the court made the
suggestion, but said it was unnecessary to pass upon the
matter.
In Ueddles v, C. S N. W. B. Co. 74 Wis. 239, 259, 42
N*. W. 237, the verdict was set aside because of mere mis-
conception of duty, misdirection of the court, passion, or
prejudice, again su^esting that mere want of reasonable
judgment is sufficient.
The field I have discussed is very broad and very impor-
tant to the administration of justice. It would require a
very lengthy opinion to review all cases in this court and
those elsewhere under Codes similar to ours, and demonstrate
that our Code provision for a new trial for excessiveness of
the verdict includes want of judgment on the part of the jury,
and excludes excessiveness because of passion or prejudice or
perversity of any kind, tliat falling under the general head of
contrary to the evidence. That was so held in Beavers v. Mo.
Pac. B. Co, 47 Neb. 761, 66 N. W. 821, under a similar
statute. It is otherwise held in California because the
Code there contains a ground for a new trial, as follows:
"Excessive damages appearing to have been given under the
influence of passion or prejudice." It is also so held in
Minnesota, but the Code provision there is as follows: "Ex-
cessive or insufficient damages appearing to have been given
under the influence of passion or prejudice." Note that the
language here is "for excessive or inadequate damages."
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472 SUPKEME COURT OF WISCONSIN. [Oct.
Monaghan ▼. North weetem Fuel Co. 140 Wie. 457.
True, in many jurisdicticHis a similar Code provision is
held not to cover cases where there is no rule for estimating
damages, so that the recoverable amount must rest rather in
mere judgment than calculation. But in such jurisdictions
it is held, in general, that exoessivenees through passion or
prejudice falls under the classification of "contrary to the evi-
dence," while, as we have seen by Baker v. Madison, supra,
and others of our cases, verdicts here have been disturbed on
the ground of mere exceesiveness in instances of this sort and
of inadequacy, as well, produced by passicai, prejudice, or
some other improper motive, under the special ground quoted.
Does it not appear quite plain that our Code-makers did
not contemplate cases of improper verdicts relievable from
under the general head of "contrary to the evidence" in
adding the particular ground : "For excessive or inadequate
damages," and that, misled by the common-law rules that a
verdict should not be set aside for excessiveness unless char-
acterized by passion or prejudice, and decisions elsewhere
imder a specific Code provision on the subject^ the effort of
our lawmakers to enlarge the grounds for relief from unjust
recoveries has not been realized.
Viewing the case as indicated, that it is competent to deal
with the verdict upon the ground of its being excessive
regardless of passion or prejudice or perversity or any im-
proper motive ; merdy because it is clearly too mudi : more
than in reason can be justified, I cannot escape the conclu-
sion that justice requires plaintiff to take less by at least
three or four thousand dollars. I should so conclude under
the severe rule which need not be applied, as we have seen.
I assume the court would condemn the recovery except for
the thought that it cannot be done without condemning the
jury as having acted from some improper motive. I cannot
think our judicial machinery is impotent to do justice be-
tween man and man in such a case without so first condemn-
ing the jury. If a verdict is too largie it is as unjust to the
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26] AUGUST TEEM, 1909. 473
McPhereon v. Great Northern R. Co. 140 Wis. 473.
appellant if honestly rendered, or rendered without any im-
proper influence, as if it were otherwise too large. It is the
xinwarranted size of the verdict which does the mischief, not
the cause of excessivenesa.
In the foregoing I have not lost sight of the fact that the
court cannot properly substitute its judgment for that of the
jury. Ordinarily the collective judgment of twelve jurymen
on such a subject as the just compensation due in a case of
this sort is safer than that of any judge, or perhaps a bench
of judges. But whether a jury exercised sound judgment,
tested by whether the bounds of reason were plainly over-
stepped, or a proper conception of the situation was enter-
tained, as well as whether the result is characterized by good
faith, are judicial questions. In solving such the court does
not invade the province of the jury.
McPhbrsoit, Appellant^ vs. Great NosTHEMr Eailway
CoMPAinr, Respondent
Octoher 6~-October 26, 1909.
Af aster and servant: Injury to servant: Assumption of risk: Contribu-
tory neffiigenoe.
1. A servant en^raged In unusually hazardous building and repair-
ing operations, where he knows that conditions are constantly
changing, assontes all the risks ordinarily present in such dan-
gerous operations.
2. A servant engaged in repairing a railroad bridge, who, while
working under the track, reached up and placed his hand on
the rail without looking to see whether a push car, which he
knew might be run over the track at any time, was in use or
not, was guilty of negligence, precluding recovery for injuries
to his hand by the car.
Appeal iTota a judgment of the circuit court for Douglas
county : A. J. Vur jx. Circuit Judge. Affirmed.
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474 SUPREME COURT OF WISCONSIN. [Oct.
McPhereon v. Great Northern R. Co. 140 Wis. 473.
Action for personal injuries. The facts were not materi-
ally in controversy. In July, 1908, the Kelley-Atkinson
Company were engaged in repairing the draw span of the
interstate bridge between Superior and Duluth which had
been wrecked two years previously. The draw span had been
raised from the water and rested upon the central pier at
right angles with the remainder of the bridge, and the
Kelley-Atkinson Company had been for about two months at
work repairing and restoring tlie iron and steel work. To
carry material from one place to another on the bridge the
company had constructed a railroad track of ordinary widtJi
in the middle of the span, and from one end of it to the other,
on which a push car eight feet long and two and one-half feet
high was shoved by the employees as occasion required. The
ties on which the track rested were some six or seven feet
apart. About the center of the span and by the side of the
track (but three or four feet below it) was a platform of
planks, fifteen or twenty feet long, laid between two girders
eight feet apart^ which formed a kind of a large box in which
the employees of the construction company kept most of
their tools and some gearings and wooden blocks, eta The
plaintiff was a steel worker and was employed by the con-
struction company in the repair work for several weeks before
the 3d of July, 1908, and knew all about the track and the
use of the car. Two or three days before the last-named date
a gang of six carpenters was put to work on the draw span by
the defendant, placing new woodwork between the rails of the
street railway track on the span. The timber which this gang
was to use was placed at one end of the bridge, and, in order
to remove a part of it to the other end, two of the carpenters,
^ by direction of their foreman, loaded a quantity on the push
car and began to shove the pudi car towards the other end,
bending forward as they walked, and stepping on the iron
rails because the ties were so far apart* In this position they
could not and did not look ahead. This was on the 3d of
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li6J AUGUST TERM, 1909. 475
McPhereon v. Great Northern R. Co. 140 Wis. 473.
July, 1908, at about 11 o'clock a. m. The plaintiff was on
the bridge at the time, near the center, and just before the
car started saw that a portable forge had been upset so that
some fire had started in the timbers and wood in the tool box,,
and he got down in the box and stood on a gearing and began
throwing the burning wood out of the box into the bay. As
he did this, he took hold of the rail of the push-car track with
his left hand. He was facing the track, but paid no attention
to it, nor did he look to see whether a car was coming. While
he was in this situation the car was pushed along the track
over his tand, inflicting injuries which laid him up for sev-
eral weeks. A verdict for the defendant was directed, and
the plaintiff appeals.
The cause was submitted for the appellant on the brief of
Victor LMey, and for the respondent on that of J. A. Mur-
phy, attorney, and Tr. M. Steele, of counseL
WiNSLOW, C. J. It is evident from the statement of facts
that a verdict for the defendant was properly directed. The
plaintiff was engaged in unusually hazardous building and
repairing operations, where he knew that conditions were
constantly changing, and he assumed all the risks ordinarily
present in such dangerous operations. Kaih v. Wis, Ceni.
R. Co. 121 Wis. 503, 99 K W. 217. He knew that the push
car was liable to be used at any time. He testifies that he
knew that his gang was not using it at the time, but the testi-
mony is uijdisputed that any gang that happened to be at
work on the bridge and found the use of the car helpful was
free to use it The plaintiff knew that the carpenter gang
was at work on the bridge, and knew that they had a quantity
of bulky material there which must necessarily be distrib-
uted along the bridga Under these circumstances we think
it dear that he was negligent in grasping the rail as he did
without looking to see whether the car was in use or not
By the Court. — Judgment affirmed.
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476 SUPREME COURT OF WISCONSIN. [Oct.
Gilcfariflt ▼. Highfield, 140 Wia. 476.
GiLCHBiST and others, Executors, Appellants, vs. Hiohfield
and others. Respondents.
October 7 — October 26, 1909.
Corporations: Purchase of own capital stock,
A corporation has power to purchase shares of its own capital
stock when such purchase is made with no illegitimate or fraud-
ulent purpose and no rights of creditors suffer thereby. Tuc-
LiN, J., dissents.
Appeai. from a judgment of the circuit court tot Douglas
county: A. J. Vinje, Circuit Judge. Affinned.
This action was brought by plaintiffs, as executors of
Ella J. Potter, a stockholder in the Webster Manufacturing
Company, to declare invalid a purchase of 364 shares of its
stock by the corporation and the payment therefor of $25,480
of corporate money, and to compel the three directors voting
for such purchase, namely, Highfield, Gard, and Alvord, to
refund to the company sudi sum so paid, Webster Manufac-
turing Company V7as organized for the general purpose of
manufacturing chairs. It had $225,000 of nominal stodc
divided into 2,250 shares, all of which, except 119 shares,
vrere outstanding. Highfield and Brigham, in equal partner-
ship, owned 1,126 shares. For several years they had been
the two active managing officers for the company, Highfield
as business manager and Brigham as superintendent of
manufacture. Their personal relations had become strained
so that they could not work harmoniously together, and
Brigham had insisted that one or the other must get out, and
either his stock must be bought so that he could retire from
the company, or Highfield must sell out and withdraw. In
pursuance of this view he gave an option to sell his 564 shares
of stock at $70 per share to Highfield or the corporation in
July, 1907. The last previous financial statement of Janu-
ary 1, 1907, showed assets of the company $214,519 in
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26] AUGUST TERM, 1909. 477
Gilchrist v. Highfield, 140 Wis. 476.
excess of all liabilities and of the capital stock at par and
absence of any debts except current payrolL Highfield
availed himself of the option to buy 200 shares^ which, it
appears, was up to the ext^it of his financial ability. A di-
rectors' meeting was then held, at which the three defendant
directors and Brigham voted that the corporation purchase
the remaining 364 shares upon the option, and accordingly
that stock was assigned to the corporation, the certificates
canceled and new certificates issued, and the purchase price
paid to Brigham, who is not made a party to this action. At
the next ensuing stockholders' meeting the act of the directors
in making such purchase was fully ratified, such ratification,
however, requiring the support of Highfield's votes to supjdy
the majority. The court held that the purchase of die stock
was in accordance with good business judgment in the in-
terest of the corporation and for no ulterior or improper
purpose, and rendered judgment dismissing the action, from
which plaintiffs appeal.
For the appellants there was a brief by Luse, PoweU &
Luse, attorneys, and H. B. Spencer, of counsel, and oral
argument by L. K. Luse.
For the resjKjndents the cause was submitted on the brief
of-ff. F. Gard.
Dodge, J. The purchase of the 364 shares of stock by the
corporation from Brigham is claimed to be wholly void upon
the groimd asserted that a corporation has no power to buy
its own capital stock. This contention seems to need littie
discussion. While the English authorities are to that effect,
and while similar holdings have been made in some of the
states, the great weight of authority is in favor of such power,
when exercised with no illegitimate or fraudulent purpose
and when no rights of creditors suffer thereby. In the face
of this conflict of decision this court long ago, upon support
from the supreme court of the United States, adopted the
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478 SUPEEME COURT OF WISCONSIN. [Oct.
Gilchrist v. Highfield, 140 Wis. 476.
view that, generally speaking, corporations have such power,
and has persisted therein so long that we have no doubt prop-
erty rights of great magnitude have grown up in reliance
thereon. Shoemaker v. Washbvm L. Co. 97 Wis. 585, 73
N. W. 333; Calteaux v. Mueller, 102 Wis. 525, 78 K W.
1082; Marvin v. Anderson, 111 Wis. 387, 87 N. W. 226;
Pabst V. Goodrich, 133 Wis. 43, 113 N. W. 398; Atlanta &
W. B. & C. Asso. V. SmUh, 141 Wis. 377, 123 N. W. 106.
The law in this state must be considered so settled.
Another contention is that, conceding such power in the
corporation, the defendants, acting on the board of directors
and also voting their stock in ratification of the directors'
act, were actuated by a purpose to deprive the plaintiffs of
their just rights in 'the corporation, especially by reducing
the amount of the voting stock so that defendants would hold
a majority thereof — a purpose which was condemned in
Lviher v. C. J, Luther Co. 118 Wis. 112, 94 K W. 69. But
tlie trial court has found against the existence of any such
motive, or any ulterior or illegitimate intent or purpose other
than the promotion of the best interests of the corporation
according to the honest judgment of the defendants. This
finding, we think, is fully supported by a preponderance of
the evidence and must preclude any interference by a court
with acts in pursuance of the business policy adopted in good
faith by the holders of a majority of the capital stock. Theis
V. Durr, 125 Wis. 651, 659, 104 N. W. 985 ; Figge v. Ber-
genthal, 130 Wis. 594, 616, 109 N. W. 581, 110 K W. 798 ;
Gamble v. Queens Co. W. Co. 123 N. Y. 91, 99, 25 N. E.
201.
By the Court. — Judgment affirmed.
TiMUN, J. {dissenting). I have no doubt that under
some exceptional circumstances, as where the transaction
does not affect the creditors injuriously and all the share-
holders consent, or where a purchase is necessary to realize
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26] AUGUST TERM, 1909. 479
Gilchrist V. Highfield, 140 Wis. 476.
upon a prior existing demand of the corporation which might
otherwise be lost^ and such like cases, a court will not disturb
the act of a corporation in buying in shares of its own stock
when such act is not expressly forbidden by statute. There
is in all such cases a corporate interest subserved by so doing,
•outside of the mere advantage of the act of purchase. . The
acquiescence of the other shareholders, or the fact that they
sustained no pecuniary loss thereby, suffices to close the doors
of a court of equity against them, and the attack is usually,
if not always, made in equity. But it is quite another ques-
tion whether the office-holding majority can use the corporate
funds or credit for this purpose against the protest of the
minority shareholders and so preserve the control of the cor-
porate offices by the former and deprive the minority of
<iividends by thus disposing of the ^surplus properly appli-
cable to the payment of dividends, or by thus creating cor-
porate debts which must be met before dividends are paii
I cannot bring myself to believe that the decision of this case
by the majority of the court is either correct in principle, sup-
ported by precedents in this state, or conforming to statutes
of this state or to wise policy. It has been said by those
<X)mpetent that in no other civilized country have the rights of
minority shareholders so little consideration as here, and it
would not, I think, be extravagant to say that the belief pre-
vails here that the shareholders in a stock corporation are not
sufficiently protected by the courts against the manipulations
and frauds of the majority shareholders or of the directors
and officers, who often regard themselves as the mere tools of
the majority which placed and holds them in office. I wish
to enter a protest against the decision by the majority as
fostering just such evils and injustice.
The relevant facts are : The Webster Manufacturing Com-
pany is a stock corporation organized and existing under the
laws of Wisconsin for the purpose of carrying on the business
of manufacturing. There was nothing in its articles of
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480 SUPKEME COURT OF WISCONSIN. [Oct.
Gilchrist V. Highfield, 140 Wia. 476.
organization authorizing it to buy its own shares. Its author-
ized capital stock was 2,250 shares of the par value of $100
oach^ and its issued and outstanding capital stock held by
shareholders at the time of the option agreement hereinafter
mentioned was 2,130.9 shares. A. W. Highfield and C. F.
Brigham, as copartners, owned 1,126 of said shares since
February, 1904. Highfield owned fifty-two shares individu-
ally and Brigham one share, and they of course controlled the
corporation, and during this time Highfield was president
and Brigham secretary, and both directors. On January 1,
1907, as shown by the books of the corporation, the liabilities,
outside of capital stock liability, amounted to only $3,866.49,
and the assets, after deducting a capital stock liability of
$225,000, showed a surplus of $214,519.65. This left the
book value of each share outstanding at $204.40 plus. The
minority shareholders had been for some time dissatisfied
with the conduct of the business of the corporation, particu-
larly with reference to paying dividends— only two dividends
having been declared in ten years prior to July, 1907, one of
five per centum and another of six per centum. The remain-
ing 951.9 shares outstanding were held, 500 shares by the
plaintiffs as executors, 137 shares by other persons who were
directors, and about 314 shares by ordinary unofficial share-
holders. June 10, 1907, Brigham executed to Highfield and
the corporation an option by the terms of which either
Highfield or the corporation might buy his 564 shares witiiin
thirty days at $70 per shara Within the thirty days thereby
fixed Highfield accepted the option as to 200 of the 564
shares, and the board of directors, for the corporation, ac-
cepted it as to 364 shares. Evidence to show tbat Highfield
borrowed the money from the corporation to buy this 200
shares was offered and rejected. Highfield paid for and re-
ceived the 200 shares, and the corporation paid out $25,480
for and received the 364 shares. The plaintiffs had no notice
of this purchase imtil some time in October, 1907, and they
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26] AUGUST TERM, 1909. 481
Gilchrist v. Highfield, 140 Wis. 476.
objected to it At the ensuing annual shareholders' meeting
in January, 1908, a motion was made to ratify the action of
the directors in purchasing these 364 shares of stock for the
corporation, and Highfield voted 815^ shares in favor of such
ratification, Oard, one of the directors making the purchase,
voted fifty-two shares in the same way, and forty other
shares were voted, making 907 J shares for ratification; and
605 J shares, including the plaintiffs', voted against such rati-
fication.
The circuit court found that $70 per share, the price paid
for the Brigham shares, was fair and reasonable, and that
differences existed between Highfield and Brigham which
threatened to injure the business of the company and it did
not seem practicable for both to remain in the corporation ;
that the directors believed that an attempt was being made
by a competing manufacturer to get control of the corporation
by purchase of the Brigham stock and the stock of plaintiffs,
and that this would be detrimental to the interest of the latter
corporation, and in the purchase of the Brigham stock for the
corporation the directors acted in good faith and believed they
were acting for the best interests of the corporation. There
is an apparent inconsistency between the thirteenth finding,
to the effect that the corporation had at the time of the pur-
chase of the Brigham stock a net surplus of assets over and
above liabilities, including liability to capital stock, amount-
ing to $214,500, and the sixteenth finding, to the effect that
the price of $70 per share paid by the corporation for the
Brigham stock was fair and reasonable. If the fair and rea-
sonable value of the shares was $70 each, then there was at
the same valuation no surplus and insufficient assets to balance
capital stock. This would indicate that the assets were over^
valued on the books of the corporation, or that in the one case
the cash market value was considered, which was much less
than the value of unconverted assets.
When a corporation possessing property consisting of land,
Vol. 140—31
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482 SUPREME COURT OF WISCONSIN. [Oct.
Gilchrist v. Highfield, 140 Wis. 476.
merchandise, raw material, billfl and accounts receivable, and
cash, buys in its own shares for cash against the protest of the
minority shareholders, it thereby not only decreases its assets
applicable to the payment of dividends, but also, against the
will of the dissenting stockholders, decreases the corporate
assets and increases the fractional interest of such shareholder
in the residue of the assets. This is so whether the shares
purchased in by the corporation be canceled and retired or
whether they be held by the corporation as outstanding, as a
little reflection will show. In such case the corporation in
effect says to the dissenting shareholder: "You shall no longer
have your former fractional interest in real estate, material,
merchandise, bills and accoimts receivable, and cash ; but you
shall from henceforth have a larger fractional interest in a
reduced total of less desirable property." Every one knows
that this is not an equivalent in value of his former holdings.
A portion of cash capital is essential to the enjoyment and
realization of the full value of the other property. The
remaining property is not available for the payment of divi-
dends, but must be converted into cash for that purpose. On
the other hand, if the corporation has no cash or no sufficient
cash with which to buy the offered shares and is obliged to
incur a corporate debt in order to make the purchase, the
value of the shares of the objecting shareholder is still further
impaired and his chance of obtaining dividends still more
remote, because it will then require payment of the debt thus
incurred as well as conversion of the property into money
before he can expect a dividend.
Men invest their money in corporate enterprises for the
principal and lawful purpose of receiving dividends thereon.
The primary object in the organization and operation of a
stock corporation is to pay dividends. Any act which pre-
vents or postpones this corporate function is necessarily a
wrong and injustice to the minority shareholder. The pur-
chase by a corporation of its own stock not only changes the
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26] AUGUST TERM, 1909. 483
Gilchrist v. Highfield, 140 Wis. 476.
fractional interest of the dissenting shareholder against his
will, but it changes the character of his property in which he
has an interest, deprives him of the chance of dividends, in-
creases against his will his proportionate liability to clerks
and servants and laborers under sec. 1769, Stats. (1898), and
also is effectual in silencing and eliminating a shareholder
(the seller to the corporation) who might vote with the dis-
senting shareholders at the next corporate election and
against the office-holding majority. Aside from any ques-
tion of good faith or bad faith, it ought to require a pretty
clear statutory authority to justify such jockeying with the
rights of others.
Other objections are found to the exercise of such a power.
3 Thorap. Comm. on Corp. § 3701. Here that autlior says,
speaking of the liability of a shareholder holding shares as
trustee:
'Tf the vicious doctrine prevails in the particular forum
that a corporation can be the general owner of its own shares,
just as a man can be the owner of his own promissory note,
and if the corporation sees fit to own, so to speak, its own
shares, by having them vested in a trustee for its own use,
then it is difficult to say how such a court would answer this
question, because a court that can fall into the aberration of
holding that a man can be the owner of his own debt can fall
into any other species of judicial aberration,"
Let us see what the statutes are.
"The property of any corporation organized under any
special or general law shall be used only for the purposes pre-
scribed by such law or by its articles of oi^anization in pur-
suance thereof." Sec. 1767, Stats. (1898).
That is, not purposes prescribed by law, but prescribed by
the law (statute) under which the corporation is organized.
These purposes are enumerated in sec. 1748 and sec 1771,
Stats. (1898), and buying its own shares is not one of them
either expressly or by implication. Other statutes in pari
materia recognize this. For example: A special authorization
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484 SUPKEME COURT OF WISCONSIN. [Oct.
Gilchrist v. Highfield, 140 Wis. 47a
to buy in its own stock was thought necessary in case of cer-
tain specified corporations. Sec 1784. Corporations like
that in the case at bar might not even buy or hold shares in
other corporations except upon the assent of three fourths
of its shareholders. Sec. 1775, Stats. (1898). It is quite
strange if the power to buy in its own shares, the exercise of
which breaches its contract with its own shareholders dissent-
ing, can be exercised upon less authority. The corporation
shall have powers conferred by these statutes necessary or
proper to conduct the business or accomplish the purposes
prescribed by its articles, but no other or greater. Id. The
corporation may amend its articles so as to diminish its capi-
tal stock, but only in the manner provided by statute or in its
articles of incorporation- Sec 1774.
Turning to the decisions of this court upon the question of
the power of a corporation to purchase its own stock, the first
is Shoemaker v. Washburn L. Co. 97 Wis. 585, 73 N. W. 333,
where there were no existing creditors and the shareholders
all consented to the transaction. This surely is no precedent
that such purchase may be made against the objection of a
shareholder. The next is CaUeaux v. Mueller, 102 Wis. 525,
78 N. W. 1082, where it was decided that a tender of its
own shares to the corporation in discharge of a corporate debt,
where the secretary and business manager had agreed, when
the debt was contracted, to receive these shares in payment,
was not a good defense. This is certainly no precedent, and
it should not be necessary at this late day to say that broad
general rules stated in the opinion or vnritten into the syllabus
of a case, where only this narrow question was before the
court, are not law, unless this court has rightfully and con-
stitutionally entered the field of legislation. The next case is
Marvin v. Anderson, 111 Wis. 387, 87 N. W. 226, where all
the shareholders and directors acquiesced in the transaction
and treated it as valid for nearly two years. This is no prece-
dent for holding that the purchase may be made against the
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26] AUGUST TEEM, 1909. 485
Gilchrist ▼. Highfield, 140 Wis. 476.
will of the Other shareholders, although we find the same
general dictum in this opinion and in the two cases of Shoe-
maker v. Washbvm L. Co,, supra, and Caltewux v. Mueller,
supra. Pabst v. Ooodrich, 133 Wis. 43, 113 N. W. 398, was
also a case where the shares had been purchased in by the
corporation with the acquiescence, if not with the express
consent^ of all remaining shareholders, and thereafter reissued
AS a stock dividend to the remaining shareholders. The state-
ment in the opinion to the effect that a corporation has power
to purchase its own shares is of course applicable to the facts
there before the court only.
The appellants' attorneys cite to us the following: 10 Cyc
760, 762 ; Railway Co. v. Allerlon, 18 Wall 233 ; Madison,
W. & M. P. B. Co. V. WateHown & P. P. i2. Co. 7 Wis.
59; Clark v. Farrvngton, 11 Wis. 306. I have not time to
•examine the cases cited in Cook on Corporation^ (6th ed.)
§§ 309 to 312, but it seems to me that few, if any, of these
cases go to the extent that the instant case does in permitting
such purchase by the corporation. The case of Dupee v.
Boston W. P. Co. 114 Mass. 37, cited by Cook, certainly does
not, because that was in effect a sale of the corporate real
estate to the shareholders in, exchange for shares of stock and
in no wise affected the power to pay dividends.
This is therefore a new question in this court and not con-
trolled by precedent, and under our statutes, fairly construed,
the directors of a stock corporation have no power, against the
will of the shareholders, to pay out the corporate funds other-
wise applicable to dividends for purchase of shares of the
corporate stock; and in the cade at bar, notwithstanding the
differences between the president and secretary, the fears of
the directors, or their good faith (which the court below was
very liberal and charitable in finding on the evidence), such
directors had no power or authority to divert the corporate
assets from the payment of dividends for the purpose of pur-
<5hasing shares, nor to so change the position of the plaintiffs
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486 SUPREME COURT OF WISCONSIN. [Oct.
Richey v. Union Central L. Ins. Co. 140 Wis. 486.
by the purchase of shares as this record shows they have done,
nor to buy off the probable opposition of the rebellious or
quarrelsome secretary by the purchase of his shares and so
perpetuate themselves in control and prevent the secretary
from voting with the other faction at the next ensuing coiv
porate election. If we were to ask any practical business man
whether these shares belonging to the estate of Potter were
worth as much after this transaction as before, the answer
would not be doubtful.
While there has heretofore been no decision in this state
going as far as the instant case, there are no doubt some illy
considered cases elsewhere which lend color of authority to
the majority decision. I see no way to change this deplorable
condition except to bear with patience such frauds until they
have become so noteworthy and nimierous as to bring about
the downfall of the mistaken rules which fostered them or to
call upon the legislature for relief.
Richey, Respondent, vs. Union Central Life Insurance
Company, Appellant.
October 7 — October 26, 1909.
(1) Pleading: Election between causes of action. (2-6) Contract
of employment: Wrongful discharge: Insurance agency: Dam-
ages: Loss of future profits: Reduction by other earnings.
1. It was not prejudicial error to refuse to compel plaintiff to elect
on which of two causes of action he would proceed, where the
second was pleaded for the sole purpose of claiming a recovery
for labor and services in case the contract of emplosrment al*
leged in the first was found not to have been made, and plaintiff
at the close of his affirmative case discontinued as to the second
cause of action and apprised defendant that he stood on the
contract and its alleged breach.
2. Under proof that a contract of employment was not terminated
because plaintiff failed to comply with any of its conditions or
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26] AUGUST TERM, 1909. 487
Richey v. Union Central L. Ins. Co. 140 Wis. 486.
obligations, nor because he failed to conduct the business in a
satisfactory manner, it is no defense to an action for its breach
by the employer that the contract authorized discharge for such
failures.
3. Damages recoverable for breach of contract must be reasonably
certain and the proximate result of the breach, excluding all
merely speculative or imaginary damages.
4. Although the elements of future damages for breach of contract
may be involved in some uncertainty and contingency, yet if,
from the facts shown, it can be inferred with reasonable cer-
tainty that the breach caused the other party pecuniary loss,
compensation therefor should be recovered even though future
profits may be involved in its ascertainment
6. Proof of the amount of business done by plain tiflf up to the time
of his discharge, during two years of an agreed ten-year period
of employment as district agent of a life insurance company;
of his organization of his territory and investment of money
with a view to enlarging his business for the remaining eight
years; of the reasonable probability that he would do an in-
creasing business; and that he was prevented from reaping the
profits thereof only by the company's wrongful termination of
his agency, — shows resulting damages with reasonable certainty
and Justifies recovery thereof.
6. In an action for the breach of the contract by the insurance com-
pany, whereby the agency business which plaintiff had built up
was destroyed, the damages recoverable are not subject to be re-
duced by the amount which he earned in other employment
after the breach and before trial.
Appeal from a judgment of the circuit court for Chippewa
county : A. J. Vin je, Circuit Judge. Affirmed,
About December 1, 1905, the defendant contracted to em-
ploy the plaintiff for ten years as a district agent in several
of the counties in the northern part of the state for the sale
of life insurance on commission. Plaintiff entered upon the
performance of the contract, devoted himself to the work of
building up a business, and expended his earnings in further-
ance thereof. About January 1, 1908, the defendant, claim-
ing that it was compelled, in the interest of its policy-holders,
because of the oppressive laws of Wisconsin, to withdraw
from the state and cease to do business here, canceled its con-
tract with the plaintiff and discharged him from its employ.
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488 SUPEEME COURT OF WISCONSIN. [Oct.
Richey v. Union Central L. Ins. Co. 140 Wia. 486.
Plaintiff brought action against the defendant, setting up
two causes of action: (1) For the breach of the contract; and
(2) for the labor performed and for the money expended by
him for the defendant The plaintiff introduced evidence
before the referee to whom the action had been referred tend-
ing to show that he had written insurance during the first
year of his employment by the defendant from which he de-
rived $868 in premiums, and over $1,300 during the second
year; that his commissions on the business so written would,
if renewed annually, amount to over $200 per year for the
unexpired term of his contract; that he had expended money
in traveling about his district^ in advertising the company,
and in developing the territory with a view to future profits ;
that the greater part of the work incurred in establishing such
a business was during the first two years; and that he had
expended time and effort in selecting and appointing sub-
agents who would be efficient in the prosecution of the
business.
Plaintiff, at the conclusion of the testimony, elected to
stand on the first cause of action, and the referee reported in
favor of allowing plaintiff $2,760 as the damage caused by
the breach of the contract The circuit court approved the
report of the referee and awarded plaintiff judgment upon
the report This is an appeal from the judgment
W. R. Stafford, for the appellant
W. M. Bowe, for the respondent
SiEBECKEB, J. The point made that the appellant was
prejudiced by the refusal of the trial court to compel re-
spondent to elect which of the two causes of action alleged in
the complaint he would proceed on has no merit The facts
of the so-called second cause of action were inserted for the
sole purpose of claiming damages for labor and services in the
event that no binding contract should be found to have been
made by the parties as alleged. The respondent^ at the con-
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26] AUGUST TERM, 1909. 489
Richey v. Union Central L. Ins. Co. 140 Wis. 486.
•elusion of his affirmative case, discontinued as to these allega-
tions and apprised appellant that he stood on the contract and
its alleged breach by the appellant There was nothing to
mislead appellant or to interfere with its defense to respond-
-ent^s demands.
It is insisted that no breach of the alleged contract is
^hown. The argument is that the appellant had the right to
terminate its agreement with respondent under the stipula-
tion that, if respondent failed "to comply with any of the
•conditions, duties, and obligations • • . or to conduct his
business in a satisfactory manner, then" appellant might at
its option terminate the contract Under the allegations and
proof on this subject it is not claimed or shown that the
agreement was terminated because respondent failed to com-
ply with the imposed conditions, duties, and obligations, or
because he failed to conduct his business in a satisfactory
manner. Tinder these circumstances appellant cannot assert
that the agreement was terminated under the foregoing stipu-
lation and this claim need not be further considered.
The main contention is that the evidence does not justify
the damages awarded by the court for the breach of this con-
tract The record presents a case of facts showing that the
appellant made an agreement with the respondent whereby he
was appointed appellant's agent for a portion of this state to
solicit persons to take insurance with the appellant and
to collect and pay over the premiums on all the insurance
effected by him, requiring him to devote all of his time
and efforts to such business for the period of ten years.
Respondent entered upon the performance of his duties and
obligations and effected insurance and collected premiums for
the period of two years. He organized the territory allotted
to him, secured persons to work under his direction, and
expended money in establishing an insurance business to be
carried on under the appointment so made. At the expiration
of two years appellant breached the agreement by an \mjusti-
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400 SUPREME COURT OF WISCONSIN. [Oct.
Richey v. Union Central L. Ins. Co. 140 Wis. 486.
fiable termination thereof, and thereby prevented respondent
from continuing as its insurance agent in the business so
organized. The claim is that the respondent has been com-
pensated for the insurance he had effected and the premiums
collected by him to the time of the alleged breach, and that
no damages could be awarded for prospective losses, because
they were speculative, imaginary, and uncertain, and there-
fore too remote to be recoverable in the law. The damages
recoverable for a breach of contract must be reasonably cer-
tain and the proximate result of the breach. This excludes
recovery of all merely speculative, possible, or imaginary
damages. The inquiry in each claim for future damages for
breach of contract is whether or not they are traceable as the
result of the breach. In all such cases the elements of the
damages are involved in some uncertainty and contingency ;
yet if under the facts shown it can be inferred with reasonable
certainty that the breach caused the other party to the agree-
ment pecuniary loss, then he should be allowed to recover
compensation to make good the loss, and this though consid-
eration of future profits may be involved in its ascertainment
The adjudications on this subject are not harmonious in
their conclusions, nor is there any uniformity as to what are
held to \>e remote and what proximate damages. Under the
decisions of this court it is established that :
"Where the profits lost are such as the parties, at the incep-
tion of the contract, had in contemplation, and the person
guilty of the breach of it must reasonably have anticipated
would result therefrom to the other party, and there is
evidence sufficient to furnish a Intimate basis for their
determination, by the exercise of sound judgment on the part
of the jury, they constitute a proper measure of damages, and
are recoverable." Schumaker v. Heinemamn, 99 Wis. 251,
257, 74 N. W. 785.
This rule was there applied and held to allow recovery for
breach of contract of a traveling salesman who was to be com-
pensated by commissions on the sales made, and was allowed
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26] AUGUST TERM, 1909. 491
Richey v. Union Central L. Ins. Co. 140 Wis. 486.
to recover damages for the prospective sales for the unexpired
period of the contract, when it was terminated. Other cases
in this court to the same effect are Treat v. Hiles, 81 Wis.
280, 60 ]Sr. W. 896; Cameron v. White, 74 Wis. 425, 43
X. W. 155.
There is evidence in the case showing the amount of
business respondent did during the first two years of the
contract period; that he had organized it with a view ta
enlarging and increasing it for the eight remaining years, and
to this end he invested his money in the business; that he
was very successful as an insurance solicitor and business
promoter; that the prospects for doing a future business,
with the enterprise so established, were favorable; that in all
reasonable probability he would do an increased business;
and that he was prevented from reaping the benefits there-
from only by appellant's termination of his agency. This is
ample proof to show with reasonable certainty that damages
resulted to respondent^ and justified the trial court in its
cx)nclusion to allow the amount of damages awarded for the
breach of the contract
The point is made that the amount of damages so found
should havfe been reduced by what the respondent earned out-
side of the contract employment after breach and before trial.
The court properly refused this deduction. This is an action
to recover the damages caused by the breach of the contract
to respondent's agency business, built up under this agree-
ment WTien appellant terminated the agreement and de-
stroyed the business its liability became fixed. It was
responsible for the value of the agency business as it then
existed and which went out of existence by its illegal act*
There is no error in the record.
By the Court. — Judgment affirmed.
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492 SUPKEME COURT OF WISCONSIN. [Oct.
Berg.v. Auburn, 140 Wis. 492.
Bebg^ Respondent, vs. Town of Auburn, Appellant
October 7 — October 26, 1909,
HighwayB: Injuries from defects: Deposit of materials for repair:
Frightening horses: Negligence: Evidence: Special verdict.
1. Town authorities have the right to deposit material in the high-
way at convenient and proper places for the purpose of repair-
ing the same, in the exercise of ordinary care; but they have no
right to so place such material as to render the highway dan-
gerous to travelers, and permit it to remain an unreasonable
time.
2. Findings in a special verdict to the effect that an iron pipe two
and a half feet in diameter/ twelve feet long, painted red» which
the defendant town had placed about eight feet from the trav-
eled track and permitted to remain there, for eleven days, was
an object likely to frighten horses of ordinary gentleness, and
that defendant was negligent in allowing it to remain where
it did, are held to be sustained by the evidence.
3. The findings above mentioned, together with findings that de-
fendant's negligence was the proximate cause of plalntiflF's in-
Jury, that plaintiff was not guilty of contributory negligence,
and assessing his damages, are held sufficiently to have covered
the material controverted issues, especially in the absence of
any request for the submission of other questions.
Appeal from a judgment of the circuit court for Chip-
pewa county: A. J. Vinje, Circuit Judge. AffirmeA.
This is an appeal from a judgment recovered against the
defendant town in a personal injury action. The plaintiff's
horse shied at a piece of iron culvert pipe placed in a public
highway by authority of the town officers, and the plaintiff
was thrown from a buggy and injured. The jury returned
the following verdict:
"(1) Was the pipe in the position and condition it was
allowed to remain by the defendant an object likely to
frighten horses of ordinary gentleness driven along the high-
way ? A. Yes.
"(2) Was the defendant guilty of any negligence in allow-
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26] AUGUST TERM, 1909. 493
Beiig V. Anbnrn, 140 Wis. 492.
ing the pipe to remain in the position and condition it did
remain ? A. Yes.
"(3) If yonr answer to question 2 is TTes/ then was snch
negligence the proximate cause of the plaintiff's injury?
^. Yes.
"(4) Was plaintiff guilty of any want of ordinary care
that contributed to produce his injury ? A, No.
"(5) If the court is of the opinion that plaintiff is entitled
to recover, then in what sum do you assess his damages?
A. $200.*'
At the close of the evidence on the part of the plaintiff the
defendant moved for a nonsuit, which was denied. Motions
were made by defendant to change the answers to question
No. 2 from "Yes" to "No,'' and to question No. 4 from "No"
to "Yes," and for judgment on the verdict as so amended,
and also that the verdict be set aside and for a new trial,
which motions were denied.
For the appellant there was a brief by W. M. Bowe and
D. E. Cook, and oral argument by Mr. Bowe.
Alexander WHey, for the respondent
Kebwin, J. 1. Error is assigned because of the refusal
of the court to grant defendant's motion for nonsuit and the
refusal to amend the special verdict and order judgment for
the defendant This contention is based upon the idea that
the pipe placed in the highway was not unlawfully there and
was not of such a character as to amount to an obstruction or
render the highway defective, and that the pipe having been
placed upon the highway for the purpose of repairing a
culvert therein it was lawfully there, hence there was no
liability on the part of the town. The evidence shows that
the highway in question ran east and west, and that the iron
culvert pipe was two and one-half feet in diameter and about
twelve feet long and painted red ; that it lay about eight feet
from the north wheel track, and that the road was about sixty
feet wide ; that on the south side of the road was considerable
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494 SUPREME COURT OF WISCONSIN. [Oct.
Berg V. Auburn, 140 Wis. 492.
brush, and the distance between the south wheel track and
the south fence was over two rods. There was also a piece of
pipe about nine feet long on the south side of the traveled
track, which pipe lay in the brush pretty close to the fence
and about one and one-half rods from the main traveled track.
The pipe was of such a character that it frightened horses.
It was allowed to remain in the highway eleven days. There
was some brush thrown upon it which covered it as long as
the leaves on the brush remained green, but after the leaves
-dried it looked worse than if it had not been covered at all.
For about a week before the accident the pipe had only a little
brush on it The west end of the pipe was practically bare,
the sun having dried the leaves and the wind taken off some
of the brush.
It is plain from the evidence that the town authorities in
covering the pipe with brush recognized the fact that a pipe of
such size and painted red as it was and in such close proximity
to the traveled track was calculated to frighten horses, and,
upon tlie evidence showing the length of time it was per-
mitted to remain in the condition it was after it became
^exposed, the jury were warranted in finding tJiat it con-
stituted a defect in the highway and negligence on the part
of the town authorities in permitting it to remain. While
it is doubtless true that the town authorities would have the
right to place material in the highway at convenient and
proper places for the purpose of repairing the same in the
exercise of ordinary care, it is also true that they have no
right to so place such material in such position as to render
the highway dangerous to the traveling public and permit it
to remain an unreasonable length of time in sudi position.
Foshay v. Glen Haven, 25 Wis. 288; Loberg v. Amherst,
87 Wis. 634, 58 N. W. 1048 ; Laird v. Otsego, 90 Wis. 25,
62 N. W. 1042; Carlon v. Greenfield, 130 Wis. 342, 110
N. W. 208.
In Carlon v. Greenfield, supra, this court held that, where
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2G] AUGUST TERM, 1909. 495
Berg V. Auburn, 140 Wis. 492.
material is deposited by the town authorities for the purpose
of repairing culverts, the officers of the town are required to
exercise reasonable care in selecting a place least calculated
to frighten ordinarily gentle horses in the use of the road,
and we think in the case at bar it was a question for the
jury to determine whether the authorities of the town were
n^ligent in depositing the pipe where they did and per-
mitting it to remain for a period of about eleven days, during
the last week of which time it was practically uncovered and
in plain sight of horses traveling upon the highway. In
Ilalstead v. Warsatv, 43 App. Div. 39, 59 N. Y. Supp. 518,
it was held in a case where the authorities of the village had
been using a steam roller to improve its street, that when
the work upon the street was suspended for the day, if an
obstruction to the unrestricted use of the highway, such
obstruction should be guarded so as not to menace the travel-
ing public; and it was further held that it was for the jury
to say whether a steam roller left upon the highway would
tend to frighten horses, and, if so, it was incumbent upon
those having charge of it to have it removed from the street
when the work was completed for the day. See, also,
Eggleston v. Columbia T. B. Co. 82 N. Y. 278. In the case
at bar the jury would have been justified in finding that the
pipe deposited was of such character as to frighten horses of
ordinary gentleness, and that the authorities of the town
failed to exercise reasonable care in placing and maintaining
such pipe as it was placed and maintained for a period of
about eleven days before the accident
2. Error is also assigned in the submission of a special
verdict on the ground that the material controverted issues
were not submitted. It appeara from the record that no
request for a special verdict or any questions, nor for instruc-
tions, was made by the defendant. The evidence was in
conflict as to whether or not the pipe rested against the fence
-or was placed at a distance of about four feet from the fence.
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496 SUPKEME COURT OF WISCONSIN. [Oct.
Befg ▼. Auburn, 140 Wis. 492.
It also appears tbat the space from tbe south side of the-
traveled track to the fence was a little over two rods, and
that there was considerable brush on the south side covering ar
short piece of pipe placed on that side, being about one and
onerhalf rods from the main traveled track. So we think oit
the facts in the case the controverted issues were sufficiently
submitted to the jury, and especially so in the absence of any
request on the part of the defendant for other questions.
The main questions for the jury to determine were whether
the pipe, in the position and condition in which it was
allowed to remain, was an object likely to frighten horses of
ordinary gentleness, and whether the defendant was guilty
of negligence in allowing the pipe to remain in such condi-
tion and thereby render the highway defective. The answers-
tb these questions in the affirmative upon sufficient evidence
established the fact of the defective condition of the highway
through the negligence of the defendant Carlon v. Oreerir
field, 130 Wis. 342, 110 K W. 208; Tinker v. N. Y., 0. <&-
W. R. Co. 71 Hun, 431, 24 N. Y. Supp. 977.
The defendant also excepted to the following instruction:
"You are instructed that the defendant had a right to store
the pipe in the highway a reasonable length of time, pro-
viding it exercised ordinary care in so storing it;*' and the-
furtber instruction: "In considering whether or not the de-
fendant was guilty of any negligence in allowing the pipe
to remain in the position and condition it did remain, you
will consider, among other things, the position and condition
of the pipe as shown by the evidence, also the length of time
it was allowed to remain in the highway.'*
We see no objection to these instructions, and think they
were in line with the law as laid down by this court Carlon
V, Greenfield, supra; Lyon v. Orand Rapids, 121 Wis. 609,
99 N. W. 311. We find no reversible error in the record^
and think the case was fairly submitted to the jury; hence-
the judgment of the court below must be affirmed.
By the Court. — The judgment of the court below is af-
firmed.
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2G] AUGUST TERM, 1909. 497
Lehman v. Chicago, St P., M. <& O. R Co. 140 Wis. 497.
Lehman, Appellant, vs. Chicago, St; Paul, Minneapolis
& Omaha Railway Company, Respondent.
Octoher 7— -October 26, 1909,
Master and servant: Injury from defective tools: Simple tools: Duty
to ^Hnspect:'* Contributory negligence: Questions for jury: Prox-
imate cause: Bpecial verdict: Presumption as to findings on
omitted facts: Instructions to jury: Evidence: Immaterial errors.
1. A pick or hammer used by locomotive firemen for breaking up
coal and consisting of a wooden handle about three feet long in-
serted in an iron cross-head having a hammer face on one end
and pick point on the other is a simple tool which the master Is
not bound to inspect to ascertain the development of defects or
disrepair in the course of its use.
2. In an action by a locomotive fireman whose eye was injured by a
piece of coal flying Into it when he struck a large lump of coal
with a pick or hammer which was defective by reason of its
face having become worn and rounded by use» the question
whether, in seizing the hammer and striking the blow without
looking at it at all, the plaintiflF exercised ordinary care, was a
question of fact for the jury.
3. In the rule that a servant is not bound to inspect machinery and
appliances furnished by the master, but may rely upon the mas-
ter to furnish safe tools and appliances, the word ''inspect" re-
fers to a somewhat careful or critical examination; and a serv-
ant may be negligent in using a tool without even glancing at
it, if, as a matter of fact, ordinarily prudent and careful persons
are accustomed to look at such tools before using them under
similar circumstances.
4. It cannot be held in such a case that because the servant did not
know of a defect in the tool he could not have anticipated that
an injury might result therefrom and therefore that his omis-
sion to look at it did not proximately contribute to an injury so
resulting. He must be deemed to have known that which he
would have learned had he exercised ordinary care.
5. It is not essential to the existence of a legal causal relation be-
tween a servant's negligence and an injury sustained by him
that he should have anticipated the precise injury which oc-
curred. It is sufficient if the negligent act was one from which
an ordinarily prudent person might anticipate some injury to
himself.
6. Whether findings in a special verdict, to the eflfect that a simple
tool which a servant was using when injured was in a defective
Voul04 — 32
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498 SUPKEME COURT OF WISCONSIN. [Oct.
Lehman ▼. Chicago, St. P., M. A 0. R. CJo. 140 Wia. 407.
condition and that such defective condition was the proximate
cause of his injury, were sufficient or insufficient to convict the
master of negligence, not determined.
7. If in such a case the special verdict was insufficient upon the
question of defendant's negligence, the court, having rendered
judgment for the defendant, will be deemed to have determined
upon the evidence that defendant was not negligent Sec. 2858m,
Stats. (Laws of 1907, ch. 346).
8. An incrtruction to the effect that If the tool plaintiff was using was
defective, and if by the exercise of ordinary care he "could"
have examined it and observed its condition before using it, he
was guilty of contributory negrligence, was not erroneous because
the word "could" was used rather than the words "ought to."
9. Instructions relative to a question upon which the jury found in
appellant's favor cannot be assigned as error by him.
10. Appellant was not prejudiced by the admission of evidence relat*-
ing to a question upon which the jury found in his favor and
having no bearing upon any question upon which they found
against him.
Appeal from a judgment of the circuit court for Chip-
pewa county: A. J. Vinjb, Circuit Judge. Affirmed,
For the appellant there were briefs by W. H. Frawley &
T. F. Frawley, and oral argument by T. F. Frawley. TTiey
cited, among other cases, Boelter v. Bass L. Co. 103 Wis.
324, 79 N. W. 243 ; Stork v. Charles Stolper C. Co. 127 Wis.
318, 106 K W. 841 ; Dowd v. C, M. & St. P. R. Co.
84 Wis. 105, 54 N. W. 24; Hardt v. C, M. & St. P. K.
Co. 130 Wis. 512, 110 N. W. 427; Polaski v. Pittsburgh
C. D. Co. 134 Wis. 269, 114 N. W. 437 ; Horn v. La Crosse
B. Co. 123 Wis. 399, 101 N. W. 935 ; Mauch v. Hartford,
112 Wis. 40, 87 N. W. 816; Buscher v. Stanley, 120 Wis.
380, 98 N. W. 223 ; Hocking v. Windsor S. Co. 125 Wis.
575, 104 N. W. 705 ; Yazdzewski v. Barker, 131 Wis. 494,
111 N. W. 689; Bandekow v. C, B. & Q. R. Co. 136 Wis.
341, 117 N". W. 812; Bloor v. Delafield, 69 Wis. 273, 34
K W. 115; Anderson v. Chicago B. Co. 127 Wis. 273, 106
K W. 1077 ; Leque v. Madison O. & E. Co. 133 Wis. 547,
113 N. W. 946; Clemons v. C, St. P., M. £ 0. R. Co.
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26] AUGUST TERM, 1909. 499
Lehman v. Chicago, St. P., M. A O. R. Co. 140 Wis. 497.
137 Wis. 387, 119 N. W. 102; Olwell v. Slcohis, 126 Wis.
308, 105 N. W. 777.
For the respondent there '^as a brief by Bundy £ Wilcox
and James B. Slieean, and oral argument by R. P. Wilcox.
I'esides other authorities, they cited Poluckie v. Wegenke,
137 Wis. 433, 119 N. W. 188; Hyer v. Janesville, 101 Wis.
371, 77 N. W. 729; Klatt v. N. C. Foster L. Co. 92 Wis.
622, 66 K W. 791; Holt v. C, M. £ St. P. R. Co. 94 Wis.
596, 69 N. W. 352; Kucera v. Meirill L. Co. 91 Wis. 637,
65 N. W. 374; Reffke v. Patten P. Co. 136 Wis. 535, 117
K W. 1004; Nass v. ScTivlz, 105 Wis. 146, 81 K. W. 133;
Dewn V. C. £ N. W. R. Co. 43 Wis. 305 ; OoUz v. MUuunhee,
L. S. £ W. R. Co. 76 Wis. 136, 44 N. W. 752; McKeon v.
C, M. & 8t. P. R. Co. 94 Wis. 477, 69 N. W. 175 ; Moniarvye
V. NoHhem E. Mfg. Co. 127 Wis. 22, 105 N. W. 1043.
Timlin, J. The complaint in this case averred that the
plaintiff was a locomotive fireman in the employment of de-
fendant In the performance of such duty he was required
to use a pick or hammer for the purpose of breaking the
larger pieces of coal preparatory to putting the same in the*
fire box. In striking the coal witb this pick or hammer a
piece of coal flew into his eye and injured it The pick or
hammer was defective, in that the outer edges of its face
had become worn and rounded from long continued use. The
defendant failed in its duty to furnish the plaintiff reason-
ably safe tools and appliances. The jury found that the pick
was in a defective condition and this defective oondition was
the cause of the plaintiff's injury, but that the plaintiff was
guilty of a want of ordinary care which contributed to his
injury.
1. Various errors are assigned by appellant, but, the ver-
dict being in appellant's favor on all points submitted to the
jury except his contributory negligence, only those alleged
errors affecting \he verdict and relating to contributory negli-
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500 SUPREME COTJIIT OF WISCONSIN. [Oct,
Lehman v. Chicago, St. P., M. A 0. R. Co. 140 Ww. 407.
gence or bearing upon that issue can be considered prejudicial
to the appellant. The accident occurred on March 7, 1907,
prior to the time at which eh. 254, Laws of 1907, went into
effect.
.The pick or hammer is an implement having a wooden
handle about three feet long inserted in an iron cross-head
having a hammer face on one end and a pick point on the
other end, and is in all respects a simple tool within the rule
of Meyer v. Ladewig, 130 Wis. 566, 110 N. W. 419, and
cases there cited. The hanmier end of this pick originally
preswited a flat surface which had become battered and
convex by use. Were the question properly before us, we
would not be inclined to hold that the implement was unsafe
or defective in this condition. But, the jury having found
that the coal pick was in a defective condition at the time of
the accident, the case vnll be decided upon the hypothesis
that this finding is a verity. The third question of the
special verdict finding the plaintiff guilty of contributory
negligence must bar his recovery unless it ought to be set
aside and the answer of the jury changed from "yes" to "no"
because of lack of evidence to support such finding.
From the plaintiff's evidence it appears that at the time
of the injury he was busy shoveling coal, and in so doing
encountered a very large lump of coal which he tried to move
with his shovel.
"That was the first time I thought of a coal pidc, so I
reached up to the usual place where coal picks are kept, right
up handy on the right side of the engine — T always carry
mine — ^used to. I reached up there and took the coal pick
and got hold of the coal pick, and I struck the coal and was
struck in the eye. I reached up on the right-hand side of the
engine and got the pick and stepped down and struck it, and
tried to break it so it would all come out. It could not como
out the way it was. It was too big; too long; and the first
blow I struck it flew up and struck me in the eye."
lie had not prior to that time ascertained whether there
was a pick on the engine or not, evidently presuming that the
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2G] AUGUST TERM, 1909. 501
Lehman v. Chicago, St P., M. & O. R. Co. 140 Wis. 497.
ongine carried a pick as usual, and ho further testified upon
"Cross-examination that he did not make any examination of
the pick before he struck the coal, did not look at it at all,
did not look to see what kind of a face it had on it, or whqj;lier
it was a new pick or an old pick; just caught it up by the
handle and took a swing at the coal. He was an experienced
fireman, and claimed to know that picks of this kind so
battered as to present a convex surface on the hammer end
were apt to cause coal splinters to fly, but did not know that
the pick in question was in this condition, and did not look at
tlie pick for the purpose of ascertaining.
The question of the contributory negligence of one injured
by the negligence of another is usually a question of fact
The question whether one seizing a pick, a hammer, or an
ax, and striking a blow with it without even glancing at the
condition of the implement, is in the exercise of ordinary
care, seems to be peculiarly a question of fact for the jury.
The more general rules that there is no duty on the part of
the servant to inspect machinery and appliances furnished
by the master, and that the sen^ant may rely upon the master
to furnish safe tools and appliances, do not at all conflict
with this conclusion. Inspection means a somewhat careful
or critical examination. Armovr v. Brazeau, 191 111. 117,
60 N. E. 904; Texas & Pac. R. Co. v. Allen, 114 Fed. 177,
62 C. C. A. 133. Notwithstanding the servant may rely
upon the master discharging his duty to furnish safe tools
and appliances and is not called upon to inspect them before
using, still, if as a matter of fact ordinarily prudent and
careful persons are used to glance at the implement with
which they strike before striking a blow under the circum-
stances in this case, and the plaintiff neglected to do so, and
such neglect contributed to cause the injury in question, he
may well be found guilty of contributory negligence.
It is said tliat contributory negligence must proximately
liave contributed to produce the injury complained of, and
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502 SUPREME COUET OF WISCONSIN. [Oct.
Lehman v. Chicago, St P., M. & O. R. Co. 140 Wia. 497.
no act or omission is the proximate cause of an injury unless
the person guilty of the act or omission ought in the exercise
of ordinary diligence to have anticipated that an injury
might result ; that, not knowing of the defect in question, the
plaintiff could not have anticipated injury; and that his
omission to look at the implement before using it, even if a
lack of ordinary care, was not such lack of ordinary care as
had legal causal relation to the injury. This is ingenious,
but unsound. Knowledge which may be acquired by the
exercise of ordinary care is for the purposes of this rule
knowledge possessed. For all that plaintiff knew or tried to
know, the pick head might be loose, or the handle might be
broken, or he might have seized the wrong implement It
was not necessary that he should have anticipated the precise
injury which occurred. If the act was careless and likely to
result in some injury, that is sufficient When the jury
found the plaintiff lacking in ordinary care which con-
tributed to the injury, they necessarily found that reaching
for a tool or implement to its accustomed place, grasping it,
swinging it up, and striking a blow with it without looking
at the tool or implement was an act from which an ordinarily
prudent person might anticipate some injury to himself.
In other words, they found all the elements of fact which
go to make up a case of contributory negligence. It could
hardly be claimed that notwithstanding the duty of the
master to furnish safe tools and appliances, and notwith-
standing the right of the servant to presume that the master
lias performed his duty, the latter, although he may omit the
more formal act of inspection, might also omit all usual and
ordinary care.
2. The only facts found by the verdict relative to the
negligence of the defendant were as follows: (1) The pick
that plaintiff used at tbe time of the accident was in a
defective condition; (2) such defective condition was the
proximate cause of plaintiff's injury. We have seen that tbe
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26] AUGUST TERM, 1909. 503
Lehman v. Chicago, St P., M. & O. R. Co. 140 Wis. 497.
implement was one properly described as a simple tooL The
verdict did not expressly find that the defendant knew or
ought to have known of the defective condition of the pick,
or any other fact or circumstance tending to show negligence
on the part of the defendant, except that the tool at the time
of the accident was in a defective condition and, by the sec-
ond answer of the special verdict, that the defective condition
of the pick was the proximate cause of .plaintiff's injury.
Slorh r. CUrles Stolper C. Co. 127 Wis. 318, 106 N. W.
841; Meyer v. Lademig, 130 Wis. 566, 110 N. W. 419;
Isaacson v. Wis. Tel. Co. 138 Wis. 63, 119 N. W. 804.
If the verdict be in this respect insufficient, the court below
having rendered judgment for the xlefendant, it must be
considered that the court determined upon the evidence that
the defendant was not negligent. Sec 2858m, Stats. (Laws
of 1907, ch. 346) ; Bates v. C, M. & 8t. P. R. Co., ante,
p. 235, 122 N. W. 745. But we do not decide that these
two findings were suflScient or insufficient to convict the
defendant of n^ligence. If we assume as most favorable to
the appellant and for the purposes of this decision that they
were so sufficient, that is all appellant can ask.
3. Error is assigned upon the following instruction to the
jury relative to the third question of the special verdict:
"By 'ordinary care' is meant such care as the great mass
of mankind ordinarily exercise under the same or similar
circumstances, and if you find the pick was defective, and
further find that plaintiff by the exercise of ordinary care
could have examined it and observed its condition before
using it, then you must find this question in the affirmative^
or, if you find that he was otherwise guilty of any want of
ordinary care that contributed to produce his injury, then
you will answer the question in the affirmative."
The principal criticism submitted is upon the use of the
word "could." Appellant contends that the words used at
this place should have been "ought ta" But what one could
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604: SUPREME COURT OF WISCONSIN. [Oct.
Lehman v. Chicago, SL P., M. A 0. R. Co. 140 Wia. 497.
in the exercise of ordinary care do to avoid injury, that he
ought to do; and one ought to do what he could in the
exercise of ordinary care do to avoid injury. The instruction
was not erroneous. It does not require the plaintiff to do
all he could do to avoid the injury, but to do all that he in
the exercise of ordinary care could do.
4. The instructions relative to what is meant by a de-
fective condition cannot be assigned as error by the appellant
because the jury found in his favor upon that point.
6. Error is assigned on the admission of the evidence of
Edgell and McDonald. The former, after testifying that he
used the same coal pick in cracking coal from the time the
plaintiff was hurt until the train reached its destination, was
asked: "Did you find any diflSculty in using it for that
purpose?" and he answered, "Not a particle.'^ "Did you
find that it caused you any more danger to break coal witli
that pick than any other pick that you had used for a similar
purpose?" and he answered, "No, sir.** McDonald, another
witness, testified that he used the pick on the run next day,
and was asked, "Did you find in the use of that pick that it
increased any hazard of splinters flying from other picks
that you had used ?" to which he answered, "I couldn't see
any difference in it to other picks." This testimony related
to the question whether or not the pick was defective, thereby
causing splinters of coal to fly. As we have seen, this finding
vtas in favor of the appellant; consequently the appellant
was not prejudiced by the admission of the evidence. It is
suggested, however, that this evidence has some bearing on
the question of the contributory negligence of the plaintiff.
We think not The plaintiff's contributory negligence, if it
existed, and it was found by the jury to exist, consisted in
reaching for the pick, swinging it up and striking a blow
•with it without even a glance at the pick to ascertain its
condition.
By the Court. — ^The judgment of the circuit court is af-
firmed.
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26] AUGUST TERM, 1909. 505
Miller v. Sovereign Camp W. O. W. 140 Wis. 505.
MiLLEE, Eespondent, vs. Sovereign Camp Woodmen of
THE World, Appellant
October 7 — October 26, 1909.
Trial: Questions for jury: Death: Presumption from absence: Resi-
dence; Evidence: Parent and child: Life insurance: Waiver of
proofs of death.
1. On a Jury trial where different minds might reasonably draw dif-
ferent conclusions from the evidence as to a fact in issue, the
Jury, rather than the court, should draw the inference.
2. Proof of diligent search and inquiry is not required to establish
the presumption of death of a person who has been absent from
his home or place of residence for seven years without being
heard from.
3. Upon evidence that a son resided with his widowed mother until
his majority and thereafter returned to her home frequently
and made it his headquarters, and in the absence of any evi-
dence that he acquired or intended to acquire a different home
or place of residence, the trial court properly assumed that his
residence was with his mother.
4. Refusal of a benefit association to recognize any claim based on
the presumption of death resulting from absence was a waiver
of its right to insist upon proofs of death as a condition prece-
dent to an action on the benefit certificate.
Appeal from a judgment of the circuit court for Green
county : George Grimm, Circuit Judge. Affirmed.
The plaintiff, aa the beneficiary in a benefit certificate
issued to her son Otto Miller, brings this action to recover
$1,000. To establish the death of the insured evidence was
offered tending to show that at the time the action was begun
he had been absent from his home and unheard of for seven
years. Xo evidence was offered by the defendant The court
directed a verdict in favor of plaintiff, and such ruling is
assigned as error.
Otto Miller was last heard from in 1899. He was then
twenty-three years of age and unmarried. He was a mu-
sician and a barber and had pursued both callings for a
livelihood, and had been away from home on and off for
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506 SUPHEME COURT OF WISC0:NSIN. [Oct.
Miller v. Sovereign Camp W. O. W. 140 Wis. 505.
several years prior to his disappearance. It appears that he
was devoted to his mother, writing to her frequently when he
was away, and returning to her home at irregular intervals.
The testimony fairly shows that in so far as the alleged
decedent had any home it was with his mother. In 1899 he
was engaged to be married to a young lady at Monroe, where
his mother resided. In July, 1899, the plaintiff and Otto
went to Salina, Colorado, where Mrs, Miller visited some
relatives until the following July. It is not entirely clear
whether she went to Colorado with the purpose of making it
her permanent home, but the inference from the testimony
is strong that she did not Otto did not remain at Salina
long, but spent most of his time in Denver and Boulder until
December, 1899, at which time he wrote his mother from
Denver. Nothing further had been heard from him up to
the time of the triaL Some rumors reached plaintiff as to his
whereabouts, and numerous letters were written to parties
who it was thought might be likely to know of him if he were
alive. The plaintiff continued to make the required pay-
ments on the benefit certificate for the seven years after the
disappearance of her son.
For the appellant there was a brief by Jeffrie, Mowat,
Smith & Avery, attorneys, and Arthur H. Burnett, of coun-
sel, and oral argument by M. 0. MoiuU.
J. M. BecJcer, for the respondent.
Baenes, J. It is contended by the defendant that the
evidence offered was insufficient to raise the presumption of
death and that a verdict should have been directed in its
favor. If this contention be not well taken, then it is urged
that the jury should have been permitted to pass upon the
principal issue in the case.
Some of the more modem cases hold that an interested
party seeking to establish the death of another may not rely
on the absence of such party from his home or place of
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26] AUGUST TERM, 1909. 507
Miller v. Sovereign Camp W. O. W. 140 Wis, 505.
residence for seven years without being heard from as being
sufficient to raise a presumption of death, but in addition
thereto it must be shown that diligent search and inquiry
have been made and all available sources of information
exhausted without result before a prima facie case of death
is established. Modem Woodmen of America v. Oerdom,
72 Kan. 391, 82 Pac. 1100, 2 L. E. A. n. s. 809, and cases
cited. If this rule is adopted by this court the judgment
could not be sustained. While a considerable amount of
evidence of search and inquiry was offered by plaintiff and
was not contradicted, still different minds might reasonably
draw different conclusions as to whether the search was suffi-
ciently diligent, thorough, and exhaustive to meet the require-
ments of the rule. In such a case the jury rather than the
court should draw the inference. The rule stated by Mr.
Greenleaf is that:
"After the lapse of seven years, without intelligence con-
cerning the person, the presumption of life ceases, and the
burden of proof is devolved upon the other party. ... It is
sufficient, if it appears that he has been absent for seven
years from the particular state of his residence, without
having been heard from." 1 Greenl. Ev. § 41.
Other treatises on the law of evidence state the rule in
substantially the same way. 4 Wigmore, Ev. § 2531 ; Jones,
Ev. (2d ed.) § 61 (57). Each of the authors named cites
an abundance of oases in support of the rule announced.
In Cowim r. Lindsay, 30 Wis. 586, this court adopted,
without qualification, the rule as laid down in Greenleaf on
Evidence, and has reiterated such rule in Whiteley v.
Equitable L. Assur. Soc. 72 Wis. 177, 39 N. W. 360, and in
Wis. T. Co. V. Wis. M. <e P. Ins. Co. Bank, 105 Wis. 464,
81 N. W. 642, although it was not necessary to the decision
of either oi the two cases last cited to do so. Thus it will
be seen that the court is firmly committed to the general
doctrine whidi does not require proof of diligent search and
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608 SUPREME COURT OF WISCONSIN. [Oct.
Miller v. Sovereign Camp W. 0. W. 140 Wis. 505.
inquiry in order to establish the presumption of death when
A person has absented himself from his home or place of
residence for seven years.
To hold in this ca^e that the home of the plaintiff was not
that of her son would be equivalent to holding that where
a son has reached his majority, and has made it a practice to
work away from home at times, he thereby loses his domicile
with his parents, at least in the absence of direct evidence
on his part of intention not to change his place of residence.
The plaintiff is a widow seventy-two years of age. She had
six children. One died in 1898 and one in 1899, and three
others died prior to 1898, so that, Otto was the only living
<5hild and heir when his mother went to Colorado in July,
1899. Otto appears from the evidence to have been an
affectionate son, returning often to the home of his mother,
and writing her very frequently during his absence. The
death of the plaintiff's daughter Emma in 1899 was the
immediate cause of h6r going to Colorado. While there Otto
made her numerous visits up to the time of his disappear-
ance. There was nothing to suggest that he had acquired or
intended to acquire a home or place of residence different
from that of his mother. Intention is almost invariably a
^controlling element in determining residence. In Pennsyl-
vania it is held that:
'TResidence is, indeed, made up of fact and intention; that
is, of abode with intention of remaining. But it is not
broken by going to seek another abode; but continues until
the fact and intention unite in another abode elsewhere."
Pfoutz V. Comford, 36 Pa. St 420, 422.
Other courts hold that a person leaving his place of resi-
dence with the present intention of abandoning it thereby
ceases to be a resident of such place. Svxmey v. Hxdchins,
13 Neb. 2G6, 13 N. W. 282. But residence is not lost by
leaving it for temporary purposes, where the intention
remains to return when such purposes are accomplished.
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26] AUGUST TERM, 1909. 50^
Miller v. Sovereign Camp W. O. W. 140 Wis. 605.
Danimann v. City Council, 39 N. J. Law, 57, 69 ; Stratton
V. Brigham, 34 "Tenn. 420, 422; Warren v. Thomaston ,.
43 Me. 406, 418. The general nile is that a man must have
a habitation somewhere and that he can have but one, and
that in order to lose one he must acquire another. Kellogg v.
Winnebago Co. 42 Wis. 97, 107; BvJkley v. WiUiamstown,
3 Gray, 493, 495. Residence signifies a person's permanent
home and principal establishment, to which whenever he is
absent he has the intention of returning, /n re Clark's
Estate, 61 Hun, 619, 15 N. Y. Supp. 370, 371. Sec. 69,
Stats. (1898), prescribes rules for determining the residence^
of electors. Subd. 3 of this section provides that a temporary
absence from home with the intention of returning shall not
deprive a party of his residence; and subd. 9 provides that
intention to acquire a new residence without removal shall
avail nothing, and that neither shall removal without inten-
tion. These statutory provisions would seem to be merely
declaratory of the common law.
The residence of Otto Miller was with his mother, at least
until he readied his majority, as he could form no valid
intent to change it before. There is no proof that he acquired
or attempted to acquire any new residence. There is
abundant evidence that he did return to the home of his
mother frequently, and at least made it his headquarters.
Under these circumstances we do not think the court erred
in assuming that the residence of the plaintiff was the resi-
dence of her son.
The certificate upon which suit was brought provided that
no legal proceeding should be instituted to recover thereunder
until ninety days after proofs of death were furnished. The
constitution of the defendant required the oflScers of the local
camp to report the death of a member to the sovereign clerk
of the order, and made it the duty of such clerk to forward
to the clerk of the local camp such blanks as should be pre-
scribed by the sovereign commander and finance committee,.
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510 SUPREME COURT OF WISCONSIN. [Oct.
Monroe Telephone Co. v. Ludlow, 140 Wis. 510.
upon which to make proof satisfactory to them. A proper
request for such blanks was made, and was refused on the
ground that no notice of death had been receiv'ed. In refus-
ing to send the blanks an officer of the defendant, presumably
duly authorized, stated that proof of absence could not be
received as proof of death, and that the validity of the claim
made could not be recognized unless actual death could be
shown. The defendant, no doubt in conformity with the
provisions of its constitution, had blanks upon which to make
proofs of death that would be satisfactory to it The plaintiff
could hardly be expected to know what was required in this
regard. There was a denial of liability if plaintiff proposed
to rely on the presumption of death resulting from absence.
Under these circumstances the defendant waived its right to
insist on proofs of death as a condition precedent to the
beginning of suit King v. Hekla F. Ins. Co. 58 Wis. 508,
17 K W. 297; Faust v. Am. F. Ins. Co. 91 Wis. 158, 64
N. W. 883 ; Matthews v. Capital F. Ins. Co. 115 Wis. 272,
91 N. W. 675.
By the Court.* — Judgment affirmed.
^foNBOE Telephone Company, Appellant, vs. Ludlow and
others. Respondents.
October 7 — October 26, 1909.
Telephone companies: Location of poles: Removal 6y dt^ ofUcers: Ob-
struction in streets,
1. Where a telephone company, operating under a city ordinance re-
quiring it to locate its poles as directed by the council, paid no
attention to a resolution of the council, served upon the com-
pany, directing remoyal of a pole set without previous author-
ity, it cannot complain because the mayor and other officers car-
ried out the directions of the council and removed the pole.
[2. Whether the mayor and aldermen were justified in summarily
removing the pole as an obstruction in the public streets under
sees. 1326, 1347, Stats. (1898), not determined.]
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26] AUGUST TERM, 1909. 511
Monroe Telephone Co. v. Ludlow, 140 Wis. 510.
Appeal from a judgment of the circuit court for Green
•county : Geoege Grimm, Circuit Judge. Affirmed.
J. L. Sherrortj for the appellant
For the respondents there was a brief hj A. 8. Douglas,
attorney, and Aylwan-d, Davies & Olbrich, of counsel, and
-oral argument by Mr. Douglas and Mr. M, B. Olbrich.
WiNSLOW, C. J. This action was brought to recover
damages for the wrongful removal of a telephone pole stand-
ing in the street in the city of Monroe, which is a city of
the fourth class. The action was tried before the court, trial
by jury having been waived. The plaintiff was operating
its system in said city under an ordinance providing that the
location and setting of all poles should be under the direction
of the common council. It set the pole in question, without
previous authority from the council, in one of the streets of
the city, near its intersection with an alley^ and in the trav-
eled track, so as to materially obstruct free access to and from
the alley. The city council by resolution directed the removal
of the pole and served a copy of the resolution on the
plaintiff company. No attention was paid to the resolution,
and about twenty days thereafter the defendant Ludlow, who
is the mayor of the city, aided by the street committee of the
council and an experienced lineman, removed the pole, being
careful to do no unnecessary damage.
The facts stated show that there can be no recovery. The
•company was required under the ordinance, which it had
accepted and was acting under, to locate its poles as directed
by the council. When directed to remove the pole in ques-
tion it was plainly its duty to do so, and it cannot complain
because the mayor, who is the chief executive officer of the
city and charged with the duty of enforcing the state laws
and city ordinances (sec. 925 — 38, Stats. 1898), carried out
the directions of the counciL This conclusion seems incon-
testable.
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612 SUPREME COURT OF WISCONSIN. [Oct.
In re Plowright, 140 Wis. 512.
It may well be, also, that the mayor and aldermen were
justified in removing such an obstruction in the public streets
summarily under the provisions of sees. 1326 and 1347, Stata.
1898 (Stale v. Leaver, 62 Wis. 387, 22 N. W. 676) ; but^
as the other ground of defense- is complete, it is imnecessary
to decide this question.
By the Court. — Judgment aflSrmed.
In re Plowbight.
Octoler 8 — Octo'ber 26, 1909,
Street and electric raiJtoaya: Condemnation of streets: Delay: Pro-
ceedings hy landowner: Limitation.
1. A corporation having a franchise from the state to operate a street
railway for carrying passengers In the city, and no authority to
operate an Interurban railway on the streets, had no right to-
condemn the use of the street for Interurban railway business;
and until It acquired such right the period of limitation under
sec. 4222, Stats. (189S), barring proceedings by a landowner un-
der sec. 1852, did not begin to run.
2. Delay of an Interurban railway company for more than four
months after acquiring the right to institute proceedings for
condemnation of a street is held, under the facta of this case, to^
warrant a landowner In proceeding In the matter under sec.
1852, Stats. (1898).
Appeal from an order of the circuit court for Rock county :.
George Grimm, Circuit Judge. Affirmed.
The Beloit, Delavan Lake <& Janesville BoAlumf Company
was incorporated March 4, 1901. The articles of incorpora-
tion state that the purpose of the corporation shall be "to-
build, construct, operate, maintain, purchase, lease, and ac-
quire a railway or railways for the carrying of persons and
property, including mail, express matter, baggage, freight,,
or any thereof, and the furnishing of light, heat, and power.'^
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2G] AUGUST TERM, 1909. 613
In re Plowright, 140 Wis. 512.
The location of the corporation 18 given in the articles as
Beloit, Rock county, Wisconsin. By an amendment on
August 21, 1901, the purpose in forming the corporation is
given as follows:
"For the business and purpose of purchasing or otherwise
acquiring, constructing, equipping, leasing, maintaining, and
operating by electricity or other power, a street railway for
the transportation of passengers in the city of Beloit, county
of Rock, state of Wisconsin, and elsewhere as it may by law
be authorized to do, and of purchasing or otherwise acquir-
ing, taking, holding, and operating real and personal prop-
erty, rights, privileges, ordinances, and franchises and any
enterprises suitable for or in furtherance of the business or
purposes of the corporation, and for the purpose of acquir-
ing by purchase, lease, or by right of eminent domain, the
real and personal property, rights, privileges, ordinances,
and franchises of any individual or individuals or of any
street railway, electric power, light, or heat companies,
foreign or domestic, now or hereafter existing, or of leasing
the same, or of acquiring and holding the shares, bonds, or
other securities of such street railway or light, power, or heat
companies or interests therein, and of extending its railways
to any point or points within any town adjoining said
municipal corporation, and of acquiring, building, main-
taining, operating, and using any street railways for the
transportation of passengers or for the transportation of
mail, express, merchandise, and freight, or of both or all,
in any city, village, or town, and to extend its railway or
railways from any point in one city, village, or town, to,
into, and through any other city, village, or town; and of
manufacturing, generating, storing, or using, selling, and
leasing electricity for power, light, or other purpoees."
The nature of the business and the railway company's
powers, rights, privileges, and franchises are set out in the
report of its case against Macloon (136 Wis. 218, 116 N. W.
897), to which reference is made for further details.
On May 13, 1901, the common council of the city of
Janesville passed an ordinance, over the mayor's veto, grant-
VoL. 140 — 33
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514 SUPREME COURT OF WISCONSIN. [Oct.
In re Plowright, 140 Wis. 512.
ing the defendant corporation a franchise in and upon
certain streets of the city, among others a part of Franklin
street^ to construct, maintain, and operate an electric railway
for the carriage of passengers. A year later the ordinance
was amended by changing its route. In April or May, 1902,
tlie defendant corporation commenced to lay its tracks upon
Franklin street, and by July this work of construction had
been completed. Meanwhile the defendant had undertaken
the work of constructing a line of track in extension of the
line in the city of Janesville and to the city of Beloit, and
in December, 1902, began the operation of an electric inter-
urban railway in and from the city of Janesville to and
through the city of Beloit By an ordinance of January 7,
1907, the city of Janesville granted the defendant a franchise
to carry express, package freight, and mail in addition to
passengers, and soon afterward the defendant commenced
the carriage of the articles enumerated in the franchise over
its whole line. By an ordinance of the common council of
Janesville dated July 20, 1908, the defendant was granted
a franchise to maintain and operate an urban and an inter-
urban electric railway for the carriage of passengers, express,
package freight^ and the United States mail in, between, and
tlirough the city of Janesville and the city of Beloit over the
streets named in the ordinances previously passed, whidi
granted the defendant franchises to do the business therein
enumerated. Since December, 1902, the defendant has oper-
ated a city street railway business in the city of Janesville,
using the same cars as were used in the interurban business.
Since January, 1907, the defendant has carried express,
package freight, and United States mail in the city of Janes-
ville in the ears used in the Janesville urban and its inter-
urban business.
The petitioner instituted these proceedings on November
30, 1908, praying for the appointment of commissioners to
appraise his damages caused by the taking and operation
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2G] AUGUST TERM, 1909. 515
In re Plowright, 140 Wis. 512.
by the defendant of its railway system over a portion of his
real estate, to wit, that part of Franklin street, a public
highway, occupied by the defendant on the east end of his
lot The defendant answered, alleging that it had taken
possession of the strip of plaintiffs property in April or
May, 1902, and pleaded the statute of limitations, alleging
that more than six years had elapsed since the taking of the
strip for interurban railway business purposes and that
petitioner was barred from instituting this proceeding. On
February 11, 1909, the circuit court filed a determination
holding that the plaintiff was not barred by the statute of
limitations, and on March 10, 1909, the court filed an order
appointing ^conunissioners to ascertain and appraise peti-
tioner's damages. This is an appeal from such order.
The cause was submitted for the appellant on the brief of
Thos. S, Nolan, and for the respondent on that of Charles E.
Pierce.
SiEBECKER, J. The right of any street or interurban
railway company to condemn the right to use city or village
streets, alleys, or viaducts was not given by law imtil the
adoption of ch. 465, Laws of 1901 (sec. 1863a, Stats.), which
grants the right upon the express condition that ". • . the
use of such street, alley, or viaduct shall first be granted to
such street or electric railway company by a franchise duly
passed by the board of trustees or common council of such
village or city." The decision in the case of Beloit, 2?. L.
<g /. R. Co. V. Macldon, 136 Wis. 218, 116 N. W. 897,
determined that appellant had no right as an interurban
railway to institute condemnation proceedings for the use of
a street unless it first had obtained a grant from the common
council of the city authorizing such use of the street. The
inquiry therefore in the case is: When did the appellant
obtain the right to condemn the use of the street for an inter-
urban railway business ?
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516 SUPREME COURT OF WISCONSIN. [Oct.
In re Plowright, 140 Wis. 512.
Prior to 1907, under the franchises it had obtained from
the city of Janesville, it was given authority to operate a
street railway for the transportation of passengers in the
city. The conduct of this business, as held in the Macloon
Case, required no condemnation of the use of the street, and
hence no right to condemn existed either against or in favor
of respondent It is obvious from the context of the ordi-
nances passed prior to 1907, whidb granted the appellant
the right to operate its railway business over the city streets,
that appellant was authorized merely to conduct a street
railway business, and that no authority to conduct an intei^
urban railway business was conferred thereby. Such au-
thority was unquestionably conferred by the ordinance of
July 20, 1908. Whether the ordinance of January 7, 1907,
conferred such authority it is not necessary to decide. If
authority to do an interurban railway business is thereby
conferred, still the period of limitation barring actions for
condemnation under sec. 4222, Stats. (1898), has not run.
Under the circumstances the right to condemn did not exist
prior to the passage of these ordinances and no right to
proceed to condemn could have accrued. Of course, peti-
tioner had no power to proceed under sea 1862, Stats.
(1898), until the railway company had delayed or omitted
to institute and conduct the proceedings .to a conclusion.
Under the facts we deem appellant's delay in instituting the
proceeding to condemn since the right accrued was sufficient
to warrant petitioner's proceeding in the matter.
The order appointing commissioners to appraise peti-
tioner's damages was proper.
By the Court. — The order is affirmed.
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26] AUGUST TERM, 1909. 517
State Bank of Reeeeville v. Kienberger, 140 Wia. 517.
State Bank of Reeseville, Appellant, vs. Kienbebqeb
and others. Respondents.
October 8— October 2)6, 1909.
School districts: Officers: Contracts: Individual liability for supplies
purchased: Illeffally issued school order.
1. In an action upon an agi-eement by which defendants bound them-
selves Individually and as school district offlcen to pay for cer-
tain goods in cash or a legally issued school warrant, plaintlft
cannot recover from the defendants individually without show-
ing that the school warrant which was in fact issued as pay-
ment was illegally issued.
2. A school warrant or order issued by the proper officers of a school
district will be presumed to be a legal order until the contrary
is shown.
3. Where a purchase of school supplies was never authorized or ap-
proved at a meeting of the district board, as required by sees.
432, 436, Stats. (1898), and a school warrant or order issued in
payment therefor was not authorized or ratified at a board meet^
ing but was signed by the members of the board independently
and not in the presence of each other, such warrant was not
legally issued.
Appeal from a judgment of the circuit court for Dodge
county : Geoboe Grimm, Judge. Reversed.
This action was brought by plaintiff as assignee of the
Agricultural Educational Society, a foreign corporation, to
recover the amoimt agreed to be paid under the following
contract :
"This order is not valid unless signed by the majority of
the Board.
^'To the Agricvltwral Educatumal Society,
"356 Dearborn St, Chicago, 111.
"Gentlemen: Please ship, prepaid, freight one set of
Country Life and Agricultural Education to Mr. Theo.
Kienberffer at Beaver Dam, county of Dodge, State of Wis.
fop School District No. 8, Township of Calamus, County of
Dodge, State of Wis., for which we agree to pay forty-seven
<iollars and fifty cents per set> making a total sum of forty-
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518 SUPREME COURT OF WISCONSIN. [Oct.
State Bank of Reeeeville v. Kienbei^r, 140 Wis. 517.
seven and 60-100 dollars; the same to be paid in cash or
legally issued school warrant If warrant is issued, to be
paid Oct Ist, 1905.
**The Agricultural Educational Society hereby guarantees
that the goods shall be in good condition upon delivery, or
purchaser shall not be obliged to accept the same.
^*We, the undersigned, individually and as school officers,
agree to take the goods from the freight office on tlieir arrival
and pay for the same as above stated, and that no verbal
agreement shall in any way change this order.
"Date Aug. 8th, 1905.
"Post office: Columbus, No. 2.
"TlIEO. KlENBEEGEB.
"A. Zarwell.
"John Brakee.'*
The complaint alleges the making of the contract, also the
making of the school order to the Agricultural Educational
Society for the sum of $47.50, the alleged purchase price,
and that said order was signed by the clerk, director, and
treasurer of the district, and was due and payable October 1,
1905; that after the making and delivery the contract^ to-
gether with the order, was assigned to the plaintiff, and the
order presented for payment and not paid ; that plaintiff also
demanded of the defendants individually tlie payment of the
amount due on contract, and that there is due from the
defendants by reason of the contract $47.50 with interest
from October 1, 1905 ; that plaintiff elects to hold the de-
fendants individually on the contract
The case was first tried in justice's court, and upon appeal
to the circuit court the answer was amended so as to set up
a general denial, and setting up, among other tliingjs, that
at the time of signing the order the defendants constituted
the school board of district No. 8, town of Calamus, Dodge
county, Wisconsin, one being the clerk, another director, and
the third treasurer, and that there was no meeting of the
school board held for the purchase of any books, and that the
order in question was not signed in the presence of the board
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26] AUGUST TERM, 1909. 519
State Bank of Reeseville v. Kienberger, 140 Wis. 517.
jointly, nor was the same ever ratified in any way at any
meeting of the board, nor was the order ever recognized as a
valid order against the district, and that the defendants as
individuals never received any consideration for signing the
order, and that the same was void and of no eflFect. Payment
was demanded before action brought
The case was tried by the court, and the following findings
of fact and conclusions of law made : That the plaintiff is a
corporation duly incorporated and existing under the laws
of the state of Wisconsin; that the defendants at and prior
to the time of the conmiencement of this action were the of-
ficers of school district No. 8 in the township of Calamus,
Dodge county, Wisconsin; that on or about the 8th day of
August, 1905, the defendants individually and as such school
officers entered into an agreement in writing with the Agri-
cultural Educational Society, a foreign corporation, for the
purchase of a set of books and charts designated as "One
set of Country Life and Agricultural Education," by the
terms of which agreement they bound themselves individ-
ually'and as such school officers to receive said goods on
arrival and pay for the same the sum of $47.50 either in
cash or by a legally issued school warrant payable October 1,
1905 ; that at the same time the defendants as such school
officers duly executed to said Agricultural Educational So-
ciety an order upon the treasurer of said school district for
the payment of said sum of $47.50, and delivered the same
to said society pursuant to the terms of said contract; that
on or about the 14th day of August, 1905, plaintiff for value
became and now is the owner of said agreement and school
order; and that it brings this action to recover from the
defendants individually the sum of $47.50 upon said agree-
ment And as conclusion of law that the defendants are
entitled to judgment dismissing said action with costs.
Judgment was rendered fop the defendants, from which
this appeal was taken.
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620 SUPEEME COURT OF WISCONSIN. [Oct.
state Bank of Reeseville v. Kienberger, 140 Wis. 517.
For the appellant there were briefs by Kading <& Kading,
and oral argument hj C. A. Kading.
For the respondents there was a brief by Malone <fe Miller,
and oral argument by J. E. Maione.
Kebwin, J. The complaint in this case seems to be
grounded upon the right to recover because of nonpayment
of the order and the right on the part of the plaintiff to elect
to hold the defendants individually liable. There is no
allegation in the complaint that the order was illegally
issued, but there is an allegation, as we have seen, that the
order was made, executed, and delivered to the Agricultural
Educational Society on John Broker as treasurer of the
school district in the sum of $47.50 fop value, and signed by
the clerk, director, and treasurer. It is quite dear from the
contract that it was necessary for plaintiff to show, in order
to recover, that the order issued was an illegal order or
illegally issued, because, an order having been issued as
alleged by the proper officers of the school district, it must
be presumed to be a legal order until the contrary is shown.
But the theory of the defendants seems to have been, as well
by the allegations of their answer as by the proof, that the
order was illegally issued, and they set up facts in their
answer showing that the order was illegally issued, and the
evidence in the case supports these allegations. The answer
sets forth, as before stated, that there was no meeting of the
school board held for the purchase of any school books and
that said order was not signed in the presence of the board
jointly. The evidence sustains these allegations and shows
that the board never met as a board and never voted to pur-
chase the books or execute the order, but it appears that the
order was signed by tlje members of the board independently
and not in the presence of each other. So we think- it is estab-
lished conclusively, not only by the allegations of the answer
but by the proof, that the alleged order was not legally issued,
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26] AUGUST TERM, 1909. 521
Stark ▼. Duhring, 140 Wis. 521.
therefore, not binding upon the district. Sec 432, Stats.
(1898), provides that no act authorized to be done by the
school board shall be valid unless voted at its meeting, and
sec* 436, Stats. (1898), provides that purchases of school
supplies must be approved at a regular meeting of the board
at which all members are present. The evidence establishes
conclusively that these provisions of the statute were not
complied with, therefore the order was illegally issued. This
being so the plaintiff had a cause of action against the de-
fendants individually under the contract, which provides
that the set of "Country Life and Agricultural Education"
mentioned in the contract must be paid for in cash or by a
legally issued school warrant payable October 1, 1905, and
it appearing no warrant was legally issued the defendants
became individually liable under the contract It follows,
therefore, that upon the undisputed facts the plaintiff is
•entitled to recover.
By the Court. — The judgment of the court below is re-
versed, and the cause remanded with instructions to enter
judgment for the plaintiff.
Stabk, Appellant^ vs. Duheino and another. Respondents.
October 8— October 26, 1909.
Appeal: Assigmenta of error: Immaterial errors: Evidence: pleading:
Counterclaim: Waiver of objections: Boundaries: Adverse pos-
session.
1. Assignments of error that the court erred In the admission of evi-
dence, in the rejection of evidence, in its findings of fact, in con-
clusions of law, and in not finding that defendants committed
the trespass alleged in the complaint, are inadequate because
too general.
2. Upon a trial by the court, errors In the admission of evidence
are not material if the findings are supported by other evidence
properly admitted.
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622 SUPREME COURT OF WISCONSIN. [Oct.
Stark V. Duhring, 140 Wis. 521.
3. The objection that certain counterclaims could not properly be^
pleaded in the action was waived by failure to demur or reply
to them.
4.. In an action involving the location of a boundary line, evidence
of adverse possession is admissible as tending to show the tru&
location of the disputed line.
Appkal from a judgment of the circuit court for Dodga
county: George Grimm, Judge. Affiimed.
J. E. Malone, for the appellant
Tor the respondents there was a brief by Kadin-g &
Kaditig, and oral argument by C. A. Kading.
Timlin, J. This action for trespass quare clatisum com-
mitted Xovember 24, 190G, on the southwest quarter of the
northeast quarter of section 21, town 9, range 16 east,
was brought in justice's court The defendants answered
separately, each claiming that the acts complained of as
trespasses were done on the northwest quarter of the south-
east quarter of the same section, which was the land of the
defendant William Dvhring, Jr., and not upon plaintiff's
land, and William DvJiring, Jr., by way of counterclaim
averred trespasses committed by the plaintiff on the last-
mentioned land on October 17, 1905, and at other times, and
prayed for damages against the plaintiff. Claim was made
that tlie title of the land was in question, a bond given, and
the cause certified to the county court of Dodge county, and
thence removed by stipulation to the circuit court for the
same county, where a jury trial was apparently waived and
the cause tried. There was no demurrer or reply to tho
counterclaims, but the parties went to trial on the merits and
treated the counterclaims as at issue. Findings of fact and
conclusions of law were made and filed in which the court
found, in substance, that the case was one of disputed bound-
ary and the true boundary was as claimed by defendants,
and consequently that the defendants did not trespass on
plaintiff's land, but plaintiff trespassed on defendants' land.
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26] AUGUST TERM, 1909, 623
Stark V. Duhring, 140 Wis. 521.
Error is assigned (1) in the admission of evidence; (2) in
the rejection of evidence; (3) "the court erred in its findings
of fact found;" (4) in conclusions of law; (6) in not finding
that defendants committed the trespass set forth in the
complaint These are very inadequate assignments of error
because too general; the third and fourth going in very
general terms to the "whole merits of the controversy. They
do not help more to point out the error complained of than
if the appellant merely said: "The judgment is wrong."
Appellant evidently does not rely very seriously upon the
first two assignments of error, for, besides referring to the
page of the printed case where found, he merely says : "We
contend that the motion to strike out testimony of William
Dvhring, Jr., should have been granted ; . . . also that ob-
jections to admission of testimony on the same page should
be sustained; also the same on page 27." No further
argument and no citation of authority. The case having
been tried without a jury and there being other evidence to
support the findings, appellant was not prejudiced by any
such ruling. Wolf v. Theresa ViUage Mut F. Ins. Co.
115 Wis. 402, 91 K W. 1014. Under some or all of the
foregoing assignments of error the appellant presents that no
such counterclaims could be properly pleaded in this action^
and this constitutes the principal argument on appeal. But
this objection, if it could be considered good, is waived by
failure to raise it by demurrer or reply to the counterclaim.
Sees. 2658, 2660, Stats. (1898). On the merits we think
the case presented questions of fact relative to the true loca-
tion of the disputed boundary. There is evidence to support
the findings.
The evidence which appellant objects to as proof of ad-
verse possession is not considered by the court for any other
purpose than to establish, or tend to establish, the true loca-
tion of the disputed boimdary line. No other use is made of
it, for the court finds that this land was not a part of
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524 SUPREME COURT OF WISCONSIN. [Oct.
state ex reL Jones v. Burke, 140 Wia. 524.
plaintiff's subdivision, but lay to the south of such subdivi-
sion and was part of the subdivision owned by Duhring, Jr.
The latter did not need any adverse possession to hold his
own. land against the plaintiff, and the question of adverse
possession is not in the case at all except so far as it con-
stitutes an item of evidence tending to show the true location
of the boundary line. We perceive no error in anything
complained of by appellant
By the Court. — The judgment of the circuit court is af-
firmed.
State ex eel. Jones, Appellant, vs. Buekb, Mayor, and
others, Respondents.
October 8— October 26, 1909.
statutes: Construction: SchooU: Fixing amount to be raised: Powers
of school boards: Cfeneral charter law.
1. Where It is sought to show that the provisions of the general char-
ter law relating to schools do not apply to a city adopting that
law in its entirety, and that the provisions of a special charter
do apply, the language relied on to express such intent should
be reasonably plain, and it should not be extended by impliear
tion or by doubtful construction so as to vest important powers
in different bodies in cities operating under a general law.
2. Under the special charter of the city of Beaver Dam the power to
determine the amount of school moneys to be raised was vested
in an elective school board. The city adopted the general char-
ter law, under sec. 925 — 113 of which "the election and organiza-
tion, powers and duties" of the board were not affected. That
section was subsequently repealed and a new section enacted,
providing that where there was an elective board "the plan of
school organization and management" should continue until
changed by vote of the electors. Held, that the power to de-
termine the amount of school moneys to be raised was not a part
of "the plan of school organization and management," and that
after the enactment of the new section (sec. 925 — 113, Stats.:
Laws of 1907, ch. 480) that power was in the common council,
being vested in that body by other provisions of the general
charter law. .
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26] AUGUST TETIM, 1909. 525
State ex rel. Jones v. Burke, 140 Wis. 524.
Appeal from orders of the circuit court for Dodge county :
Martin L. Lueck, Circuit Judga Order quashing alter'
native vmt affirmed; appeal dismissed as to other orders.
This is an appeal from parts of three alleged orders. One-
of sudh orders quashes an alternative writ of mandamus sued
out to compel the mayor and common council of the city of
Beaver Dam to levy the amount of school taxes certified by
the school board to the city council for the year 1908.
For the appellant there were briefs by George B. Sumn^
attorney, and C M. Davison, of counsel, and oral argument
by Mr. Swan.
John C. Healy, as city attorney, and M. E. Burke, of
counsel, for the respondents.
Barnes, J. Under the special charter of the city of
Beaver Dam, as amended by cL 96, P. & L. Laws of 1859,
the power was vested in the school board to determine and
certify to the common council by July 1st in each year the
amount of money necessary to support the schools of the city
for the ensuing year, and it was made incumbent on the
common council to levy the amount so certified for school
purposes. State ex rel. Ordway v. Smith, 11 Wis. 65. The
power of the school board was materially curtailed by sec 4,.
subch. X, ch. 83, Laws of 1885 ; but we may assume for the
purposes of this case that ch. 135, Laws of 1889, substantially
restored to it the powers conferred by the law of 1859, and
imposed upon the common council the duties in regard to
making levies for school purposes that were imposed by such
act, and we take it as granted that prior to the adoption of
the general charter law in its entirety by the city of Beaver
Dam in 1903 the common council of such city had no voice
in determining the amount of money that should be levied
for school purposes, provided the school board performed its
statutory duty to determine and certify the amount that
should be raised.
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526 SUPREME COURT OF WISCONSIN. [Oct.
State ex rel. Jones v. Burke, 140 Wis. 524.
Sec. 925 — 113 of the general charter law, as it stood when
adopted by the city of Beaver Dam in 1903, provided:
"In every city which shall adopt this chapter for its
government, if there shall be at the time of such adoption a
board of education or school board elected by the people
under the provisions of its charter, . . . the election and
organization, powers and duties of such board shall not be
aiFected by this chapter, and such system shall continue until
changed by a vote of the electors of the city."
The school board of Beaver Dam is an elective one, and it
is one of the contentions of the appellant that the provisions
in the general charter law above referred to retained in and
reserved to such school board all the rights and powers it
possessed under the special charter of the city, including the
right to compel the city council to levy such sums for school
purposes as were determined upon by the school board and
certified by it to the common council
By ch. 480, Laws of 1907, sec 925—113, Stats. (1898),
was repealed and a new section was adopted in lieu thereof.
This act provided that as to cities other than those of the first
class adopting the general charter law, when the school board
was elective at the time of such adoption, "the plan of school
organization and management shall continue until changed
by a majority vote of the electors of such district" This
amendment was in force at the time the common council of
Beaver Dam refused to levy the amount of money for school
purposes determined and certified by the school board.
We deem it unnecessary to decide whether the general
charter law at the time it was adopted by the city of Beaver
Dam gave the school board of the city the right to determine
the amount of school taxes that should be raised in a given
year and the right to compel the city council to levy the
amount so determined. If such right was retained in the
school board it was because such law authorized it to exercise
the ''powers and duties'* theretofore exercised imder the
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26] AUGUST TERM, 1909. 527
State ex rel. Jones v. Burke, 140 Wis. 524.
special charter. The law of 1907 made a radical change in
the verbiage and we think in the meaning of sec. 925 — 113.
The right to exercise the powers and duties conferred by the
old charter was no longer preserved to the school board-
Instead, the "plan of school organization and management"
was continued as it existed under the special charter. We
are unable to see how the making up of the school budget,
coupled with the right to compel a levy of the amount stated
therein, is any part of the plan of school organization or
school management It is certainly no part of the organiza-
tion, and it seems plain that it is no part of the management
as that term is ordinarily used and understood. The purpose
of enacting the general charter law was to secure uniformity
in city government and in the method of running the various
departments thereof. Where it is sought to show that the
provisions of the general law relating to schools do not apply
to a city adopting the law in its entirety, and that the provi-
sions of a special charter do apply, the language relied on to
-express such intent should be rieasonably plain, and it should
not be extended by implication or by doubtful construction
so as to vest important powers in different bodies in cities
operating under a general law. The legislature must have
had some purpose in mind in making the change which it did
make in this statute, and to hold that because the "plan of
organization and management" of the schools of this city
should remain unchanged the conmion council was divested
of the power to determine the amount of school moneys that
should be raised, which power is otherwise plainly conferred
on the common council by the general law, would, we think,
be unwarranted.
By the Court. — The order quashing the alternative writ of
mandamus is affirmed. As to the other alleged orders ap-
pealed from in part> the appeal is dismissed.
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528 SUPREME COURT OF WISCONSIN. [Otrr.
Stamin v. Western Union Tel. Co. 140 Wia. 628.
Stumm, Respondent, vs. Western Union Telegraph Com-
pany, Appellant,
Octoher 8— October 26, 1909.
Telegraphs: Vegligence: N<mdeHvery of menage: Lobs of contractr
DamageB: Future profits: Instructions to jury: Proximate cause:
Appeal: Assignments of error: Evidence: Letters: Copies.
1. Damages for loss of profits from a prospective contract of employ-
ment which was not secured because of defendant's negligent
failure to deliver a telegram apprising plaintiff of the opportu-
nity to close such contract, are not too speculative to be recov-
ered.
2. In an action for damages for wrongful conduct preventing plaint-
iff from obtaining employment the reasonable value the contract
would have netted to him had the brecu:h of duty not occurred is^
the measure of damages, provided the evidence presents a fair
basis for determining such value with reasonable certainty.
8. In an action against a telegraph company for damages caused br
failure to deliver a telegram, an instruction that, in order to find
that plaintiff lost a contract of employment by such nondelivery,
the jury must be satisfied that the person sending the telegram
had authority from the alleged employer to make such contract,
did not Invade the province of the jury and was not erroneous,
there being evidence of such authority.
4. An instruction giving correctly the definition of proximate cause
in the abstract was not erroneous because not phrased to fit the
particular facts of the case, where no different or further in-
struction was requested.
6. Assignments of error on the admission of evidence will not be
considered where the particular portions claimed to have been
improperly admitted are not pointed out and the pages of the
printed case referred to generally do not contain the evidence
claimed to be incompetent.
6. A letter on one of the regular letterheads used by the alleged
writers, which the addressee testified was received directly from
them, was properly admitted in evidence though marked •*copy**
and signed with a stamp instead of in writing.
Appeal from a judgment of the circuit court for Wau-
kesha county : Martin L. Lueck, Circuit Judge. Affirmed,
Action to recover compensation for damages claimed to-
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26] AUGUST TERM, 1909. 629
Stumm V. Western Union Tel. Ca 140 Wis. 52a
have been caused by negligence in failing to send and deliver
a telegram.
Plaintiff applied by letter for employment as a second
miller in a mill in Venezuela. He addressed the letter to a
firm in New York in response to an advertisement inviting
applications for the place. In due time he received an
answer, through AHia-Chalmere Company of Milwaukee;
stating that they were empowered in the matter and stating
such things as he would likely wish to know before engaging,
requesting a reply as to his experience, and informing him
that, if they should aigag^ him, a visit to them before going
to take the place would be required. In due time he returned
a satisfactory reply. Thereupon they wrote again, specify-
ing the wages offered, stating that expenses both ways would
be paid, and that, if the terms were satisfactory, they would
probably have him come to Milwaukee to arrange details.
Plaintiff responded accepting the terms. He soon thereaf t^
wrote again. Two days later they telegraphed him to come
to Milwaukee to make a contract The message was duly re-
ceived by defendant at its main office in Milwaukee and put
on die wira It went first to the Chicago office, then to the
St. Louis office, where it was delivered to a sixteen-year-old
female operator for transmission to the point of destination,
Staunton, Illinois. It did not reach there or plaintiff. About
three weeks thereafter plaintiff gave up the position he had,
supposing he was going to obtain the place for which he had
applied, and went to Milwaukee to see about it The Allis-
Chalmers Company, not hearing from plaintiff, had entered
into negotiations with another man in respect to the matter,
whom they employed. Plaintiff stood ready to take the place
on the terms that had been stated to him, but was unable to
secure it for the reason indicated. They waited some two
weeks to hear from plaintiff before entering into negotiations
with the other man for the place. The employment of such
other was ratified by the principals in New York. Plaintiff
Vol.140— 34
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630 SUPREME COURT OF WISCONSIN. [Oct.
Stumm V. Western Union Tel. CJo. 140 Wis. 528.
had been out of employment^ at the time of the trial, some
nine months.
Defendant's explanation, in respect to failure to send and
deliver the telegram, was that it occurred by reason of strike
disturbances and interferences which ordinary care on its
part under the circumstances could not have prevented ; that
after some delay the operator at St. Louis got a response to
the call for the Staunton office, whereupon the message was
put upon the wire and its receipt, as appeared, was duly sig-
naled back.
There was a motion for a directed verdict in defendant's
favor. After the verdict various motions were made on be-
half of defendant and denied, whidi will be referred to in the
opinion so far as necessary. The jury found specially that
the message was delivered to defendant to be sent plaintiff
imder the circumstances before detailed; that plaintiff failed
to obtain the situation he applied for because of negligent
failure of defendant to transmit to him and deliver such
message; that the failure was not solely due to strike disturb-
ance and that plaintiff was damaged by defendant's neglect
in the sum of $800. Judgment accordingly was rendered in
plaintiff's favor.
For the appellant there was a brief by Miller, Mack <6
FavrchUd, attorneys, and TvXlar & Lockney and Oeorge H.
Fearons, of counsel, and oral argument by A. W. FmrchilcL
James D. Shaw and Oscar W. Kreutzer, for the respondent
MAESHAI.L, J. The court is of the opinion that the judg-
ment must be affirmed.
The questions raised are of such nature that it is not
thought best to write any extended opinion in respect to them.
The damages claimed are not fatally speculative. The
question on that subject is ruled in respondent's favor by
Ban-Tcer v. ^Y. U. Tel Co. 134 Wis. 147, 114 N. W. 439, and
similar authorities^
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26] AUGUST TERM, 1909. 531
Stamm v. Western Union Tel. Co. 140 Wis. 528.
There was sufficient evidence to carry the case to the jury
as to each inquiry in the special verdict It seems needless
to review the record and point out that which was competent
as to each particular subject and the reasonable inferences
therefrom. If the jury were warranted, in any reasonable
view of the case as it was submitted to them, in reaching the
conclusions embodied in the special verdict, that ends the
matter as regards the facts.
It is contended that the court should have charged the jury,
as requested, that respondent was not entitled to recover, in
any event, on account of wages which he would have earned
after May 20, 1908 (which is about the date of the trial), had
the telegram been delivered and he had secured the employ-
ment to which it related. Counsel in that is misled by the law
in respect to recovery on an employment contract in case of a
wrongful refusal of the employer to carry out the agreement
Then wages lost are only recoverable up to the time of the
trial. This is not such a case. It is an ordinary action for
damages for wrongful conduct preventing respondent from
obtaining employment In such a case the reasonable value
the contract would have netted to the person injured had the
breach of duty not occurred is the measure of damages. It is
within the rule for the recovery of future gains prevented so
far as a fairly reasonable basis can be found for determining
them with reasonable certainty, found in ScUvo v. Duncan,
49 Wis. 151, 4 N. W. 1074; Treai v. HUes, 81 Wis. 280, 50
N. W. 896 ; Forster, W. Co. v. F. MacKinnon Mfg. Co. 130
Wis. 28i, 291, 110 N. W. 226; Rickey v. Union Cent. L.
Ins. Co., ante, p. 486, 122 N. W. 1030. The rule was ap-
plied in Barker v. W. U. Tel. Co. 134 Wis. 147, 114 N. W.
439.
Error is assigned because the court charged the jury: '
"And in order that you may" find that plaintiflF lost the
situation in question by reason of nondelivery of the tele-
gram, "you must be satisfied and convinced by a preponder-
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632 SUPREME COUET OF WISCONSIN. [Oct.
Stumm V. Western Union Tel. Co. 140 Wis. 628.
ance of the evidence that Allis-Chalmers Company had
authority from De Sola Bros, and Pardo to enter into a con-
tract of employment for them with the plaintiff."
It is argued that Ihe instruction involved a suggestion that,
it was competent for the jury to so find from the evidence,
whffli^eas there was no evidence of authority om the question.
The mere submission of the question to the jury without any
instruction whatever %would have involved a suggestion that
there was room in the evidence for a finding either way.
Upon no other theory was there a jury questi<Mi on the subject
To merely say what was said to the jury did not invade their
province in the slightest 'degree. Counsel is wrong in the
claim that there was no evidence on the question. The fact
that the letter written by respondent was answered through
Allis-Chalmers Company suggested, quite strongly, that it
was authorized to arrange for a person to fill the situation.
The further fact tiiat the company did so and their action was
ratified by the New York parties who advertised, inviting
applications for the situation, was almost if not conclusive
evidence of authority. On the whole there was ample to go
to the jury in respect to the matter.
Other objections to the trial court's instnicti<ms are sug-
gested, predicated on the theory of want of evidence to send
the questions to which sudi instructions relate to the jury.
We will not discuss them in detail. They are all sufficiently
answered by what has been said.
Exception is taken to the court's definiticHi of proximate
cause. Sudi exception is without merit The language used
informed the jury of what proximate cause is in the abstract
and they doubtless took it that way. It was copied substan-
tially verbatim from Deisenrieter v. Kraus-Merkel M. Co.
97 Wis. 279, 72 N. W. 736, which has been approved by this
court in decisions foimd in every volume of our reports for
the past twelve years. As has often been said, what con-
stitutes proximate cause in the law of negligence is one thing;
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26] AUGUST TERM, 1909. 533
Stumm V. Western Union Tel. Co. 140 Wis. 628.
what oanstitutes the proximate cause in the given case is an-
other. The former is matter of law for the court ; the latter
is matter of fact for the jury to find under proper instruc-
tions, which it is obligatory for the court to give when suitably
requested and which, generally speaking, ought to be given
whether requested or not> where the subject is involved, but
may be omitted without commission of harmful error, if
error at all, in case a proper request is not made. The court
here gave correctly the definition of proximate cause. True,
it were better if it had been phrased to fit the particular facts
of this case, but no request was made for any different or
f urtlier instruction.
Several other exceptions to the trial .court's instructions are
urged upon our attention and all have received consideration.
It is considered that such exceptions do not merit discussion
in detail. We are unable to discover fatal error in any of
them, or anything worthy of criticism or extended notice.
Error is assigned because the court permitted the evidence
to be introduced of <Mxe Harrison, who acted for Allis-Chal-
mers Company in hiring a miller for the Venezuela parties
after failing to secure the services of respondent The par-
ticular portions of the evidence claimed to have been improp-
erly admitted are not pointed out Pages 33 and 34 of the
printed case are referred to generally, which we do not find
to contain evidence given by Harrison. It contains evidence
given by one Hoppin. The assignment of error is presented
in such a way that it cannot be considered. Probably, in any
event, the evidence counsel had in mind was either proper or
not harmfully improper, since the fact appears, by competent
evidence, that the Allis-Chalmers Company in fact did secure
a miller for the Venezuela mill, and he was accepted. That
was the material circumstance going to show authority of the
company and probability that respondent through it would
have obtained the place but for the negligence complained of.
Error is assigned because the court admitted in evidence
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534 SUPREME COURT OF WISCONSIN. [Oct.
J. I. Case T. M. Co. v. Johnson, 140 Wis. 634.
what purported to be a copy of a letter written from New
York by the principals in employing the miller to Mr.
Harrison of the Allis-Chalmers Company, at Milwaukee,
thanking the company for friendly assistance in securing one.
The copy was on one of the regular letterheads used by the
Kew York parties and the addressee testified that it was re-
ceived directly from them. Under those circumstances it
seems the paper, though marked "Copy'* and though signed
with a stamp instead of in writing, was competent as a cir-
cumstance bearing on whether the Allis-Chalmers Company
was authorized to act in securing a miller for the Venezuela
mill.
Some other rulings on the admission and rejection of evi-
dence are discussed by counsel, whidi do not seem to have
harmfully affected the appellant in any reasonable view of
the case.
By the Court. — Judgment affirmed.
J. I. Case Threshing Machine Company, Appellant, vs.
Johnson, Respondent.
October 9— October 26, 1909.
Bales: Breach of warranty: Rescission: Return of goods: Waiver:
Authority of agent.
1. A vendor by expressly refusing to receive back a machine after
breach of warranty, as provided by the contract of sale, waive*,
the return thereof to the place where received as a condition
of rescission.
2. The evidence In this case as to the scope of the authority of a
general agent of the vendor is held to sustain a finding that his
act in refusing to receive back a machine was the act of the
vendor, although the written contract of sale provided that na
person had authority to waive, alter, or enlarge the contract
3. Use of a machine by vendee by way of reasonable test only is no-
obstacle to a subsequent rescission of the contract of sale.
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26] AUGUST TERM, 1909. 535
J. I. Case T. M. CJo. v. Johnson, 140 Wis. 534.
Appf.at. from a judgment of the circuit court for "Wau-
kesha county : Mabtin L. Lubok, Circuit Judge. AffirmecL
Action on two promissory notes given by defendant for a
com husker and shredder manufactured by the plaintiff under
an order containing a warranty as to quality and efficacy, but
conditioned that, in case of failure to comply with the war-
ranty, the plaintiff should have opportunity to supply any
defective parts and to make all reasonable efforts to remedy
the difficulty, the buyer to render necessary and friendly
assistance, and, if then it cannot be made to fill the warranty,
'the part that fails to work should be returned by the purchaser
free of charge to the place where reoeiVed and the company
notified thereof, and, at the seller's option, another substituted
therefor that shall fill the warranty, or the notes and money
paid should be returned and the contract rescinded and no
further claim made. The defendant upon trial was unable to
make the machine do as good work as guaranteed ; one of the
serious difficulties being the tendency of parts to work loose
in course of the use of the machine. Two or three attempts
to make it satisfactory were made with the claim on part of
plaintiff's representatives that the result had been accom-
plished, and insistence on the part of defendant that even
the degree of efficiency which had been accomplished by the
experts disappeared with a very brief operation of the ma-
(diine. Finally, after being quite thoroughly convinced that
the machine wis not up to warranty, defendant was induced
by the general agent of the company to permit one more
effort on plaintiff's part to make it satisfy the warranty, and
accordingly an expert was sent and worked over and with the
machine a day or two, until Saturday the 24th day of Novem-
ber, when the expert went away, claiming that the machine
worked satisfactorily. It was then set up and in process of
a job for one Cook. An attempt was made to work the
machine Saturday afternoon, and again through the forenoon
of Monday, although defendant asserts that he was not satis-
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636 SUPREME COURT OF WISCONSIN. [Oct.
J. L Case T. M. Co. ▼. Johnson, 140 Wis. 634.
fied that it would work accordiiig to the warranty when the
expert left at noon of Saturday. At noon Monday all attempt
to use the machine was abandoned, the defendant procured
another to do the work he had engaged, and on November 27th
wrote the plaintiff's general agent that he oould not make the
machine come up to the warranty and was through with it,
and closed with the words, "So you can let me know when
you want to ship it, and please return my notes." To this
the plaintiff replied, asserting that it was convinced that the
machine worked up to the warranty and that it had done all
required on its part, and that if there was any trouble with
the working of the niadiine it was due to defendant's opera-
tion of it, and said: "Under these circumstances we cannot
consider the return of the machine." Defendant did not re-
turn the machine to Hartland railroad station, where it was
received, but stored it on the farm of a neither, where it has
remained ever since. The court found substantially these
facts and refused to find that defendant continued to use the
machine after his final determination to reject it as not com-
plying with the warranty; that the absolute refusal of the
plaintiff to acoept return of the machine absolved defendant
from tie duty of delivering it at the railroad station where
obtained. Judgment was rendered dismissing the complaint,
from which plaintiff appeals.
For the appellant there was a brief by Ccary, Upham <&
Black, and oral ailment by /. /. Cook.
For the respondent there was a brief by Rycm,, Merlon &
Newbttry, and oral argument by T. E. Ryan and M. A.
Jacobson.
Dodge, J. The appellant contends against the judgment
that defendant's right to rely upon breach of warranty was by
the express terms of the contract dependent upon return of
the machine to the place where received, which confessedly
never took place. But it is found and established without
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26] AUGUST TERM, 1909. 637
J. I. Case T. M. Co. v. Johnson, 140 Wis. 534.
dispute that the defendant^ when finally oMivinced of the de-
fective character of the madiine, notified plaintiff of that fact
and Bflked its pleasure as to the time of returning it, implying
his readiness to make such return according to the terms of
the contract. To this the company, through its general agent,
declared its determination to insist on. the sufficiency of the
machine and to refuse to accept its return in any way. It is
a rule of law thorou^ly established by many decisions that
the positive declaration by one party of a determination which
would render a prescribed act by the other futile excuses a
specified performance or tender of that act Guetzhow v.
Michigan Mut. L. Ins. Co. 105 Wis. 448, 451, 81 N. W. 652 ;
Langnecker v. Trustees, 111 Wis. 279, 87 K W. 293 ; Wuer-
fler V. Trustees, 116 Wis. 19, 92 N. W. 433; Swanke v.
Herdeman, 138 Wis. 654, 120 K W. 414. Clearly the decla-
rati(m of plaintiff's position that def^idant had no right to
surrender bade the machine served to raider any deposit
thereof at the depot in Hartland futile and unreasonable and,
we conclude, absolved him from the performance of that as a
condition of his right to rescind for breadi of warranty.
It is further contended in this connection that the authority
of the general agent to waive any of the terms of the contract
is not shown and is contradicted by the writing itself, which
declares that no person 'Tias authority to waive, alter, or
enlarge this contract or to make any new or substituted or
different contract^ representation, or warranty. Salesmen,
mechanics, or experts are not authorized to bind the company
by any act, contract, or statement" There is some evidence
of very general scope of the authority of the general agent
in deciding and declaring the attitude of the company with
reference to this machine and the plaintiff wholly refrained
from offering any in contradiction of such authority. The
court has found that the plaintiff company acted in this decla-
ration made by its general agent, and we think such finding
has support in the evidence offered by the defendant which the
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638 SUPKEME COUET OF WISCONSIN. [Oct.
White V. White, 140 Wis. 538.
plaintiff did not see fit to contradict We therefore conclude
that defendant's failure to actually transport the machine and
leave it at Hartland is not an obstacle to his defense in this
case.
2. It is further contended that defendant, after having
finally decided that the machine was defective and did not
satisfy the warranty, made use of it for his own benefit for
parts of two days, and therefore is precluded from rescinding
the contract for breach of warranty. Rules of law governing
this subject were laid down, in the light of numerous cita-
tions, in Fox V. Wilkinson, 133 Wis. 337, 113 N. W. 669.
The trial court evidently considered that the use made of the
machine by defendant, after plaintiff's last effort to make it
satisfy the warranty, was only by way of reasonable test, for
he refused to find that it was an appropriation of the machine
to defendant's own use and benefit consistent only with the
attitude of ownership. The evidence, while perhaps ambig-
uous, preponderantly supports the former view. There is in
such conduct, therefore, no obstacle to defendant's subsequent
rescission of the contract of purchase.
By the Court. — Judgment affirmed.
White, Respondent, vs. White and others, imp., Appellants.
Octoher 9 — October 26, 1909,
Husland and wife: Alienation of affections: Parties: Evidence: Dec-
larations of husha^d: Appeal: Harmless error: Punitory dam-
ages: Excessive damages,
1. In an action by a wife for alienation of her husband's afTections
the husband is not a proper party defendant, since he was not
a Joint tortfeasor with those who wrongfully brought about his
state of mind, and cannot be held to have Joined or confederated
with the active parties in the wrong constituting the cause of
action.
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26] AUGUST TEEM, 1909. 539
White V. White, 140 Wis. 538.
2. In such action the plaintiff may testify to declarations hy her
husband as to offers made to him by defendants to induce hfm
to abandon her.
3. The erroneous admission of evidence is not prejudicial to appel-
lants when it supports their claim and impeaches the case of
the respondent
4. In determining whether parents maliciously conspired to alienate
their son's affections from his wife» the evidence should be con-
sidered in view of the rights of the parents and their obliga-
tions respecting their child's welfare and happiness.
5. In an action by a wife for a malicious conspiracy to alienate the
affections of her husband, punitory damages may be awarded,
even though one defendant is without property and the other
is wealthy.
6. In an action by a wife for alienation of her husband's affections
an award of $5,000 compensatory damages and $1,500 punitory
damages is held not excessive.
Appeal from a judgment of the circuit court for Wau-
kesha county : Martin L. Lueck, Circuit Judge, Reversed
OS to one defendant; affirmed as to the others.
This is an action by the plaintiff, who is the wife of Fredr
erick H. White, Jr., for the alleged cause of action that the
defendants maliciously, wrongfully, and wickedly confeder-
ated, conspired, and agreed to alienate and destroy the love
and affection of Frederick H. White, Jr., for plaintiff as his
wife, and to induce him to desert her, and to prevent him
from providing her the necessaries of life and of discharging
toward her the duties of a husband. It is alleged that the
defendants, to accomplish the objects of the malicious, wrong-
ful, and wicked conspiracy and agreement, urged and per-
suaded Frederick H. White, Jr., to desert and leave the
plaintiff and to go and remain beyond the borders of the state,
wherein plaintiff and her husband had resided as husband and.
wife up to the time he deserted her in July, 1905, and for
this wrongful purpose the conspirators offered him sums of
money and to pay him a fixed sum of money annually to so
desert the plaintiff. It is also claimed that the defendants
influenced him to wrongfully leave her by threatening that, if
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540 SUPKEME COURT OF WISCONSIN. [Oct.
White V. White, 140 Wis. 638.
he did not comply with such wrongful object, he would be dis-
inherited and barred from securing any portion of his par-
ents* estates. It is also alleged that Frederick H. White, Jr.,
was induced to act upon such wrongful importunities, and
that he became imbued with hatred and ill will toward plaint-
iff, which alienated and destroyed his affection for her, to her
great injury and damage.
It appears that Frederick H, White, Jr., is the husband of
the plaintiff and that they were married December 11, 1901.
The defendants Frances L. and Frederick H. White, Sr., are
his parents. At the time of the marriage the plaintiff was
twenty years of age and her husband was twenty-one. He was
then attending a medical school and she a business college in
Milwaukee. They had become acquainted about a year before
their marriage, and for the two months preceding their mar-
riage they had met daily on their car trips to and from Mil-
waukee and Waukesha. They were married without their
parents' knowledge. The parents were informed of the mar-
riage by telegram from the husband, and they returned to
Waukesha, but did not immediately live in his parents' home,
for the alleged reason that his parents were oool and indif-
ferent toward plaintiff and her husband. A week thereafter
plaintiff and her husband made their residence with his
parents at Waukesha. His parents soon thereafter gave a
reception to present plaintiff and her husband to the friends
of the family. Plaintiff and her husband continued to reside
with his parents at Waukesha until the summer of 1903. At
different times during this period, while so residing together
at the White home in Waukesha, disagreements and quar-
rels arose between plaintiff and her mother-in-law, Frances
L. White. Her mother-in-law spoke of the plaintiff in a
derogatory way, deprecated her marriage to her son, and
characterized her as unfit to be his wife. In the summer of
1903 plaintiff and her husband moved to Milwaukee, where
his parents assisted them to secure and furnish a dwelling,
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26] AUGUST TEEM, 1909. 541
White V. White, 140 Wis, 538.
-which plaintiff and her husband occupied until the late au-
tumn of 1904, when they broke up housekeeping and took
up their residence with plaintiff's sister, Mrs. Bamum, at
Waukesha, Wisconsin, where they continued to reside as hus-
band and wife until July 10, 1905, when he left and refused
longer to live with and provide for her, as he has ever since
refused to do. The plaintiff avers that this desertion was the
culmination of the malicious conspiracy of his parents and
Mary A. Stewart to which her husband finally became a party.
The husband asserts that he left her and refused further to
live with and support her as his wife because of her ill treat-
ment of him, due to her ungovernable disposition, which re-
sulted in personal violence to him and a failure to do her duty
as his wife.
It appears that Mary A. Stewart had lived with Mr. and
Mrs. White, Sr., for many years ; that she was retained by
them in their family ; that she assisted in raising Frederick
and the other children ; that she was of aid and assistance in
various ways to Mrs. White personally and also in the house-
hold affairs, and that she was actively interested in furthering
Frances L. Whitens wishes and desires respecting plaintiff
and her husband's marital relations and affairs. Frances L.
White, her children, and Mary A. Stewart w«it to San An-
tonio, Texas, for the winter of 1904—05. They wrote letters
{ram there to Fredericlc H. White, Jr., in November and
Decembw, referring to plaintiff in terms of reproach, reflect-
ing on her as unworthy of his care, attention, and society and
as unfit to be his wife, and suggesting pecuniary inducements
if he should rid himself of her and seek release from his
marriage obligations. After the receipt of these letters he
visited the family in Texas. The evidence tends to show that
his mother and Mary A. Stewart then tried to induce him to
leave plaintiff, return to his medical studies at his mother's
cost, and that upon his declination to comply with their solici-
tations he was informed by them that his parents refused to
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542 SUPKEME COUET OF WISCONSIN. [Oct.
White V. White, 140 Wis. 538.
longer give him assistance and financial aid. . In the following
July he left the plaintiff and refused to reside with her as
his wife or to maintain a home for her support Since then
he has resided with his parents and has attended medical
<5ollege as his mother had proposed and urged him to do before
he left the plaintiff.
Upon these facts and other evidential facts corroborative
thereof the court found that no cause of action was shown
against Frederick H. White, Sr., and Harry W. Wood and
dismissed the action as to them. The court also found that
the defendants Frances L. White and Mwry A. Stewart con-
trived, conspired, and associated together for the purpose of
preventing plaintiff from performing her marital duties
toward her husband and from enjoying and receiving her hus-
band's society and support; that they thus wrongfully and
naaliciously intermeddled in the marital relations of plaintiff
and her husband, and maliciously urged, persuaded, and in-
duced him to desert and abandon her that they might thereby
accomplish their wrongful purpose of destroying his love and
affection for her and of inducing him forever to desert her as
his wife ; and that they thereby had deprived her of his society
and aid and comfort as a husband. The court awarded plaint-
iff $5,000 as compensation and $1,500 as punitory damages
in the action, with costs. The court also foimd that the plaint-
iff's husband had joined his mother and Mc&ry A. Stevmrt in
the malicious and wrongful conspiracy and awarded judg-
ment accordingly. This is an appeal from such judgment
For the appellants there was a brief by Ryan, Merton <&
Newbury, and oral argument by T. E. Ryan and M. A. Jacob-
For the respondent there was a brief by Clasen £ Walsh,
attorneys, and TvlUur i& LocTcney, of counsel, and oral argu-
ment by D. 8. TuLlar and E. D. Walsh.
SiEBECKER, J. The defendants contend that the court er-
roneously held that plaintiff's husband was a proper party
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26] AUGUST TEEM, 1909. 543
White V. White, 140 Wis. 538.
defendant and a party to the conspiracy for the alienation and
loss of his affection and society. Sec. 2345, Stats. (1898),
as amended by ch. 17, Laws of 1905, provides that: "She
[a wife] may also bring and maintain an action in her own
name, and for her own benefit, for the alienation and the loss
of the affection and society of her husband." This statute,
which, confers rights on a married woman to maintain an ac-
tion in her own name as to her separate property, business,
personal earnings, or for any injury to her person or character
as if she were sole, had been construed before the amendment
to confer on her the right to maintain an action agaibst her
husband for violation of those rights, as she had a right against
strangers. Carney v. Oleissner, 62 Wis. 493, 22 N. W. 735 ;
Brader v. Brader, 110 Wis. 423, 426, 85 N. W. 681.
The question here is : Is the husband a joint tortfeasor in
the commission of the wrong constituting the plaintiff's cause
of action ? True, he was guilty of the wrong of leaving the
plaintiff in consequence of the wrongful conspiracy and of
causing her the loss of his affection and society. This, how-
•ever, is the result of the tort allied to have been committed
by the other defendants, namely, their malicious purpose of
the wilful and intentional alienation of him from her and the
<5ausing the loss of his affection and society. The gist of the
action is the damage resulting to the plaintiff by the wrongful
conduct of those who induced the alienation and the loss of
her husband's affection and society. This is attributable to
the acts and conduct of the persons who influenced the hus-
band to yield to their wrongful purpose. Their acts in fur-
therance of this purpose constitute the tort for which the
resultant damages are recoverable. It cannot be said that the*
husband was an active participant in carrying out the objects
of the wrongful conspiracy to accomplish the alienation and
the loss of the husband's affection for his wife and the conse-
•quent loss of his society by her. The wrongdoers acted upon
and through him to accomplish their illegal purpose against
the plaintiff, and the cause of action was complete when their
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544 SUPEEME COUET OF WISCONSIN. [Oct.
White ▼. White, 140 Wig. 538.
machinations had operated to cause plaintiff the alienation
and the loes of affection and society of her husband. He is
not, therefore, a joint tortfeasor with those who wrongfully
brought about this state of mind, and hence he cannot be held
to have joined or confederated with the other active parties in
the wrong constituting the wife's cause of action. In so far
as his conduct may be violative of any marital rights of the
wife, he is personally responsible to her independently of the
defendants' wrong through whidi he was led to breach his
legal obligations, and the wife may seek her redress in an
appropriate acticm against him. From these considerations it
fdlows that he was not a party to the tort and hence not a
proper party defendant
It is suggested that this court passed on this question on the
former appeal of the case (132 Wis. 121, 111 N. W. 1116)
and held that the husband was a proper party defendant.
This question was not presented on that appeal and is not
embraced in the decision. The complaint, considered on that
appeal upon general demurrer, also contains allegations to the
effect that Frederick H. White, Jr., and the other defendants,
after his separation from the plaintiff, had maliciously con-
spired to entice and induce her into undliaste and criminal
acts to degrade and injure her for the purpose of enabling^
her husband to legally separate from her. No proof was of-
fered to sustain this allegation and it is therefore dropped
from the consideration of the case on this appeal.
The court permitted plaintiff to testify to declarations
made by her husband to her and others, which purport to give
the offers and inducements held out to him by his parents to
induce him to separate from and abandon the plaintiff. It is
claimed that this was prejudicial error. This class of evi-
dence has been held proper and competent as showing the in-
fluences producing the alienation and the loss of affection com-
plained of and the cause of separation and the destruction of
the marital relation. Hardwich v. Hcordwick, 130 Iowa, 230,
106 N. W. 639; WiUiams v. Williams, 20 Colo. 61, 3T
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26] AUGUST TERM, 1909. 645
White V. White, 140 Wis. 538.
Pac. 614; Nevins v. Nevins, 68 Kan. 410, 75 Pac. 492. To
the same effect is the case of Homer v. Yance, 93 Wis. 352,
67 N. W. 720.
It is contended tiiat the court committed prejudicial error
in receiving and considering the testimony of plaintiff's hus-
band. An examination of his evidence shows that, though it
was erroneously admitted, it could not have operated to the
defendants^ prejudice, since all of the material facts to which
he testified supported the defendants' claims in the case and
impeached plaintiff's case. Under this state of his evidence
no prejudicial error resulted from its admission.
The defendants assert that the evidence does not support
the court's findings to the effect that the defendants Frances
L. White and Mojry A. Stewart maliciously confederated to-
gether to injure the plaintiff through the alienation and the
loss of affection and the society of her husband, and that their
acts and conduct caused such alienation and loss of affection
and society as resulted in an abandonment and separation
from her. The proof relevant and material to these findings
of the court embraces nearly all of the facts and circumstances
disclosed by the evidence. The evidence is in positive and
direct conflict on this issue. The inferences from the evi-
dence depend, however, upon the weight and the credibility
of the different witnesses testifying in the case considered in
connection with the positive testimony contained in the letters
and other evidence in the case. In determining whether the
defendants did maliciously conspire to accomplish the aliena-
tion of the husband and the loss of his affection and society by
the wife, the evidence should be considered in view of the
rights of the parents and their obligations respecting their
child's welfare and happiness. As stated in the recent case
of Jones V. Monson, 137 Wis. 478, 487, 119 N. W. 183 :
"The true test to be applied to the evidence in this class of
cases is ; Were the defendants in what they did actuated with
reasonable parental regard for their child, or were they actu-
VoL.140 — 35
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646 SUPEEME COURT OF WISCONSIN. [Oct.
White V. White, 140 Wis. 538.
ated ty unreasonable ill will towards the husband or wife, as
the case may be ?"
"Acts done by a stranger might well be regarded as mali-
cious, while similar acts by the parents would not give rise to
a well-grounded suspicion of bad intention."
It is str^iuously urged that the evidence in this case fails
to show that the defendants Frances L. White and Mary A.
StevTort maliciously confederated together for the imlawful
purpose charged, and that there is nothing to show that they
attempted to carry out such purpose. As stated, the volu-
minous evidence on this issue unbraces well nigh all the
material facts and circumstances in the case and cannot profit-
ably be restated here. The record contains positive evidence
supporting the claim that these defendants combined, and took
actual steps to poison the mind of the plaintiffs husband
against her and to induce him to separate from her as his
wife. The circumstances of their conduct in the matter are
cedent in support of this claim. True, much of the direct
evidence of the defendants is a denial of any such purpose
and an endeavor to explain the circumstances tending to show
guilt. The court's conclusions, however, are clearly supported
by the facts and circumstances shown, if the witnesses testify-
ing thereto are worthy of credit and belief. The conclusions
of the court as to the facts must stand unless we can say from
the record before us that the evidence of the witnesses in sup-
port thereof is incredible or not of sufficient weight to warrant
the court in finding tiiese defendants guilty of the wrong al-
leged against them. After an attentive reading and considera-
tion of the evidence, we cannot say that the witnesses testify-
ing in support of the cause of action were not entitled to credit
and that sudi evidence was insufficient in weight to sustain the
findings. Upon the record it must be held that these defend-
ants were guilty of maliciously confederating together to
injure the plaintiff by effecting the alienation and the loss of
affection and society of her husband.
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26] AUGUST TERM, 1909. 547
dwell V. Travis, 140 Wis. 547.
It 18 asserted that the award of punitory damages is illegal
because they are evidently allowed and fixed at the sum
awarded upon the evidence of the wealth of the defendant
Frances L. White. There is nothing in the case showing that
the trial court awarded the punitory damages upon this
ground. The claim that punitory damages are not proper
in view of the fact that one of the defendants is without
property and that another defendant is possessed of consid-
erable means is not well founded. The cause of action arises
out of the malicious conduct of the parties, and the wrong-
doers can be subjected to punishment by the award of puni-
tory damages therefor. We cannot say as matter of law that
the trial court allowed an excessive amount of either compen-
satory or exemplary damages under the facts and circum-
stances of the case. The record presents no groimds for dis-
turbing the judgment
By the Court. — The judgment is reversed as to the defend-
ant Frederick H. White, Jr., and the cause remanded with
directions to dismiss the action as to him. The judgment is
aflBrmed in all respects as to the other defendants.
Olwell, Respondent, V8. Tai^vis and others, Appellants.
October 9— October 26, 1909.
HiphicavB: Estahlishment : Statutory proceedings : Presumptions from
lapse of time: Ancient survey: Width: Change of limits: User:
Deviation of travel: Costs: Discretion.
1. A petition to the road commissioners in 1847 for the laying out of
a highway was recorded in the town records, as was also a sur-
vey headed "Survey of a public road for the town of O./' defi-
nitely describing the line of the road throughout, and signed
by the surveyor and the commissicmers. These were the only
records as to the highway, but the road was opened and traveled.
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548 SUPREME COURT OF WISCONSIN. [Oct.
Olwell V. Travis, 140 Wis. 647.
at least partially, upon the line described. Held that. In view
of the lapse of time, the survey must be regarded as an ancient
document; and all proceedings leading up to the making of
such survey will be presumed to have been regularly taken pur-
suant to Laws of 1843, p. 46, SS 1> 2. It will be presumed, there-
fore, that- the petitioners were freeholders residing in the town,
although the petition does not show that fact, and that an order
laying out the road had been regularly made. Kebwin, Mabsh-
ALL, and Timlin, JJ., dissent.
2. The established width of public highways at the time in question
and since having been four rods, the road will be deemed to
have been laid out of that width, with the line described In the
survey as its center.
3. The fact that at a certain point a highway was traveled on one
side only of the center line thereof as shown by the survey, did
not operate to change the limits of the road as laid out
4. Slight deviation of travel from a highway as laid out, and the
maintenance of fences at irregular distances from the center
line, though continued for more than twenty -years, did not re-
sult in abandonment of any part of the highway or in the ac-
quirement of title by user to any land outside of its limits,
where there had never been any attempt to have the fences
placed on the true line, but mere passive acquiescence in their
remaining where placed, and no dedication of land for the high-
way outside of its limits as laid out
6. A ruling of the trial court withholding costs in an equitable ac-
tion will not be disturbed on appeal unless there was an abuse
of discretion.
Appeal from a judgment of the circuit court for Wau-
kesha county : Martin L. Lueck, Circuit Judge. Affirmed.
This action was brought by the plaintiff and respondent
against the defendants as supervisors of the town of Ocono-
mowoc, Waukesha county, Wisconsin, to enjoin and restrain
them from interfering with plaintiff in constructing a fence
along the east line of his premises, the defendants claiming
that the plaintiff was placing his fence within the limits of
the highway. The findings of fact and conclusions of law
are in substance as follows :
That the defendants were the duly elected, qualified, and
acting supervisors of the town of Oconomowoc, Waukesha
county, Wisconsin; that the plaintiff is a resident of the town
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26] AUGUST TERM, 1909. 549
Olwell V. Travis, 140 Wis. 547.
of Oconomowoc and the owner of the east half of the north-
•east quarter of section 23 of said town of Oconomowoc ; that
on the 16th day of March, 1847, the commissioners of public
highways duly caused to be surveyed and did lay out a public
highway four rods wide running from the northwest comer
of section 13 in said town of Oconomowoc, south along the
section line between sections 13 and 14 to the quarter-post
on the east line of section 23, which highway runs, among
other places, directly north and south along the east line of
plaintiff's land; that a correct survey of said highway as laid
out was made by Surveyor EoUo Powerie; that said highway
has been traveled by the general public for over twenty years
west of the center line of said highway as laid out and to a
width of one and one-half rods from the section line, except
in one or two places where the travel slightly diverged ; that
fences have existed and been maintained for more than
twenty years along the east line of plaintiff's premises and at
irregular distances from the center of the highway as sur-
veyed and laid out and outside of and west of the west line
of the highway as the same was laid out; that there never
has been any attempt to have the fences along said highway
placed along the true line as surveyed, and there has been no
dedication of any land for highway purposes outside and west
of the lines of the highway as surveyed, there simply being a
passive acquiescence in the fences remaining where they have
been placed, and that the public has acquired no rights, by
user or otherwise, in any of the lands of the plaintiff for
highway purposes west of the lines of the highway as laid out ;
that the plaintiff in building his fences placed and erected the
same inside the limits of the highway as laid out, and that the
authorities of the town of Oconomowoc have asserted and
claimed that said highway extends upon the plaintiff's land
and west of the west line of said highway as laid out and as
determined and fixed by the Eollo Powerie survey ; that there
is and has been a controversy between the plaintiff and the
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550 SUPREME COUET OF WISCONSIN. [Oct.
Olwell V. TraviB, 140 Wis. 647.
authorities of said town as to the true location of the west
line of the highway along the east side of plaintiffs premises ;
that plaintiff built his fence upon what he in good faith be-
lieved to be the west line of the highway and for the purpose
of inclosing his premises so that they might be used for
pasturage.
And as conclusions of law the court found that the high-
way in question was duly laid cut by the highway commis-
sioners March 16, 1847, of the width of four rods, and that
the center line thereof is the section line on the east side of
plaintiff's premises between sections 23 and 24 in said town
as established by RoUo Powerie, surveyor, whose survey is a
correct survey of such highway ; that there has been no legal
dedication to the public 'of any land outside of the litnits of
the highway as originally laid out, and the public has ac-
quired no rights except within the limits of the highway as
originally laid out; that the plaintiff had no right to build
the fence in question at the plaoe he started to build it, but
that he has a legal right to construct a fence east of where the
old fence stood and on the west line of a four-rod highway as
the same has been determined by the Kollo Powerie survey ;
that the public has acquired no rights in plaintiff's premises
between the old fence and the west line of a four-rod road as
established by the Powerie survey, and thai the defendants
are without authority to interfere with plaintiff's use and
enjoyment of the same; that judgment shall be entered per-
manently enjoining and restraining the supervisors of said
town, their agents and servants, from interfering with the
construction and erection of a fence on the west line of a
four-rod highway, said west line being two rods west of the
section line between sections 23 and 24 as determined by
Hollo Powerie; and also restraining and enjoining any inter-
ference with plaintiff's use and enjoyment of his premises
west of said highway line; and enjoining and restraining the
plaintiff from building a fence on a line one and one-half
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2C] AUGUST TERM, 1909. 551
OlweU V. Travis, 140 Wis. 547.
rdds west of said section line ; no costs to be awarded to either
party against the other, and the def^dants to pay the derk's
fees.
Judgment was rendered in accordance with the findings of
fact and conclusions of law without costs, except that defend-
ants pay the clerk's fees in Uie court below, from which
judgment this appeal was taken.
Anthony B, Rogan, attorney, and C. E, Armin, of counsel,
for the appellants.
For the respondent there was a brief by Ryan, Merton &
Netvbiay, and oral argument by T. E. Ryan and M, A. Jacob-
son.
Kerwin, J. A great many errors are assigned by appel-
lants upon exceptions to the findings of fact and conclusions
of law, but as we understand them they may all be classified
under four heads : (1) Was the highway legally laid out four
rods wide? (2) Is there sufficient competent evidence to
support the findings as to the location of the section line
between sections 23 and 24? (3) Is the highway in question
a highway by user ? And (4) should costs have been awarded
to the defendants ? If we correctly understand the appellants*
brief, the foregoing propositions cover the material conten-
tions of the appellants. After setting out the various assign-
ments of error they state the controversy thus :
'*The real questions litigated on the trial of this case in the
court below were whether there was a highway by user, or
whether said highway had been legally laid out and estab-
lished by the road commissioners of the town of Oconomowoc,
at the place where plaintiff erected his fence mentioned in
his complaint, and whether or not plaintiff had a legal right
to erect said fence where he did, and whether or iKxt the <ie-
fendants were justified in removing said fence in the manner
in which they did."
1. It is first contended that the hi^way was xK)t legally
laid out) for the reason that the petition did not show that
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552 SUPREME COURT OF WISCONSIN. [Oct.
OlweU V. Travis, 140 Wis. 547.
the petitioners were freeholders residing in the town, and,
further, that the survey is insufficient as an order laying out
the highway, the petition and survey being the only records
produced. It is the opinion of the court that after the lapse
of time since the highway was laid out it must be presumed
that the petitioners were freeholders residing in the town and
the survey a sufficient order, under the rule laid down by this
court in Randall v. Rovelstad, 105 Wis. 410, 81 N. W. 819.
It seems that in finding a four-rod highway the court con-
sidered that the established width of public highways at the
time the highway in question was surveyed was, and since
has been, four rods, and that the line run by the surveyor
should be the center of the highway. Terr. Laws of 1840,
p. 33, No. 24, § 6. See, also. Laws of 1843, pp. 46-50, § 23 ;
R. S. 1849, ch. 16, sec. 70; ch. 19, sec 74, R. S. 1858;
sees. 1264, 1294, Stata. (1898). So it seems the survey suf-
ficiently described the width of the highway as four rods.
State V. Eogue, 71 Wis. 384, 36 K W. 860. The important
question is whether the recording of the survey was sufficient
evidence of the laying out of the road. It definitely described
the line of the road throughout, and runs on the section line
east of plaintiffs property between sections 13 and 14, 23
and 24. It is signed by the surveyor and the road commis-
sioners, dated March 16, 1847, and is indorsed "Survey of
Road." The survey begins by reciting, "Survey of a public
road for the town of Oconomowoc," and then follows a
description of the line from beginning to end. The petition*
to the road commissioners of the town to lay out the highway
and the survey were recorded in the town records.
The road in Randall v. Rovelstad, supra, was opened by
county commissioners under Terr. Stats. 1839, p. 107, sec 4
of which provides for the appointment of viewers, and sec. 5
provides that said viewers, or a majority of them, shall view
the route proposed, and, if deemed a public utility, shall lay
out and mark such road on the best groimd obtainable; and
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26] AUGUST TERM, 1909. 553
Olwell V. Travis, 140 Wis. 647.
flee 6 provides that the viewers, or a majority of them, shall
make a certified copy of their proceedings to the ensuing
session of the board, when the same shall be publicly read,
and if no objection is made to such proposed highway the
board shall cause a record thereof to be made and order the
road to be opened and repaired a necessary width, not exceed-
ing sixty-six feet Under this law it was held in Randall v.
Rovelstad, supra, that the filing of the survey at a date more
than forty years anterior to the time of trial was sufficient
evidence that a highway had been laid out. As we have seen,
sec. 6, p. 107, Terr. Stats. 1839, provides merely that a record
shall be made of the highway, but it does not require a copy
of the order to be filed, nor does it require that the survey
shall embrace a copy of the order, and it was therefore held
that because of the great lapse of time a record of the survey
describing the road was sufficient evidence that it had been
laid out In the case before us, obviously, a road was laid
out, not by county commissioners under the Statutes of 1839,
but by the town conunissioners under the Laws of 1843, and,
as will be seen, the proceedings were somewhat different
The law required a petition to be made to the commissioners
of the town by six or more freeholders, and further provided
that whenever the commissioners of highways shall lay out a
road they shall cause a survey or description to be made of
such road and shall incorporate such survey in an order to be
signed by them and filed and recorded in the office of the town
clerk, who shall note the time of receiving the same. Laws
of 1843, p. 46, §§ 1, 2. So it will be seen that under the
Laws of 1843 the conmiissioners of highway in towns were
required, when they laid out a road, to incorporate the survey
in an order laying out the same and file it with the clerk.
So that in this regard this law differs from the law under
which the road was laid out in Randall v. Rovelstad, supra.
However, it is the opinion of the court, in view of the great
lapse of time since the filing of the petition and survey in the
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554 SUPKEME COUET OF WISCOXSIX. [Oct.
Olweli V. TraTJB, 140 Wia 547.
instant case and the fact that Ae road had been opened and
traveled, at least partially, upon the line described in the
survey, that the sun'oy must be regarded as an ancient docu*
ment and all proceedings leading up to the making of sudi
survey presumed to have been r^ularly taken; that the
statute (§§ 1, 2, Laws of 1843) contemplates that the road
shall be first laid out before the survey is made, and, not-
withstanding there was not a strict ownpliance with the
statute in the recording of an order embracing a copy of the
survey, that the order must have preceded the survey and
have been in existence and regularly made at the time the
survey was made and recorded, though not incorporated in
the survey; that the statute (§ 2) to the effect that wh^iever
the commissioners of highways shall lay out any road they
shall cause a survey or description to be made of such road
means that the laying out of the highway shall precede the
survey, and that since the survey was made and filed it must
be presumed that all anterior steps leading up to the making
and filing of the survey were r^ularly tal^en. Randall r.
Rovelstad, 105 Wis. 410, 81 N. W. 819. True, at the point
in question on the section line between sections 23 and 24 the
road was traveled on the west side of the section line only,
but this would not operate to change the limits of the road
as laid out Moire v. Kruse, 85 Wis. 302, 55 N. W. 389 ;
Eeilly v. Racine, 51 Wis. 526, 8 K W. 417; Randall v.
Rovelstad, supra.
2. The next question is whether the evidenoe is sufficient
to support the finding on the location of the section line
between sections 23 and 24. The claim of the appellants
would throw the line farther west upon the property of the
plaintiff and thereby shift the highway farther west This
point was strenuously contested on both sides and several
surveys made and a mass of evidence offered, and the court
below in its findings found in favor of the respondent on this
proposition and adopted what was known in the case as the
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26] AUGUST TERM, 1909. 565
Olwell V. Travifl, 140 Wis. 647.
Rollo Powerie survey as the correct survey, and we think the
finding is well supported by the evidence.
3. It is further contended by appellants that a highway
by user was established over the land actually used west of
the section line. The conrt below found upon snflScient evi-
dence that the highway was traveled by the general public
for over twenty years west of the center line of the highway
as laid ont and to a width of one and one-half rods from the
section line, except in one or two places where the travel
slightly diverged. This contention brings ns again to the^
question whether the highway was legally laid out four rods
wide ; and, this court holding in this case that it was, it is
only called upon to further consider the effect of divergent
travel along the general course of tlie highway for upwards,
of twenty years. The ai^gument of appellants under this head
is that lie only lawful highway existing is the one which
has been actually used ; and, as we understand their argument,
they base it upon two grounds: First, that, there being na
highway laid out, one could be acquired only by user; and
second, that even if a lawful highway had been laid out it
was abandoned by nonuser. The court has already disposed
of the first proposition by holding that a highway was laid
out. Upon the second proposition the court below found on
ample evidence that fences have existed and been maintained
for more than twenty years along the east line of plaintiff's
premises and at irregular distances from the center of the
highway as surveyed and laid out and outside and west of
the west line of the highway as laid out, and that there never
has been any attempt to have the fences placed along the true
line as surveyed, and there has been no dedication of any
land for highway purposes outside of the west line of tho
highway, there simply being a passive acquiescence in the
fences remaining where they were placed, and that the public
has acquired no right by user or otherwise in any of the lands
of plaintiff west of tte lines of the highway as laid out, and
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566 SUPKEME COURT OF WISCONSIN. [Oct.
Olwell V. Travis, 140 Wis. 547.
that the plaintiff in building his fences erected the same
inside of the limits of the highway as laid out and as such,
highway in fact existed. Upon the facts found by the court
below under this head it is well settled in this state that there
could be no abandonment of any portion of the highway laid
out or any title by user acquired outside of the lines of the
highway as laid out Randall v. Bovelstad, 105 Wis. 410,
81 N. W. 819 ; Nicolai v. Davis, 91 Wis. 370, 64 N. W. 1001 ;
Reilly v. Racine, 51 Wis. 526, 8 N. W. 417. Counsel for ap-
pellants rely on State v. Lloyd, 133 Wis. 468, 113 N. W. 964,
but in tiiat case it will be seen that, although a four-rod
highway had been laid out, subsequently a new toad upon a
different line from that formerly laid out was opened and
traveled by the public and acquiesced in by tbe owners of the
land, so the rule of slight deviation from the highway as laid
out had no application and was so held by the court in that
case.
4. It is also conteiided by appellants that the court erred
in not awarding costs to the appellants. The case being in.
equity, the matter of costs was m the discretion of the oourt>
and since we find no abuse of discretion we cannot disturb
the ruling below in that regard.
The writer desires to say in conclusion that it is the opinion
of Justices Makshall, Timlin, and himself that the judg-
ment should be reversed upon the ground that there is no
evidence that the alleged highway was ever laid out, but the
majority of the court think otherwise, as indicated in the
opinion of the court; therefore the judgment must be affirmed.
By the Court. — The judgment of the court below is af-
firmed.
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26] AUGUST TERM, 1909. 657
Stark V. Backus, 140 Wis. 557.
%
Stabk, Appellant^ vs. Backus, District Attorney, and others,
Eespondents.
October 9— October i6, 1909.
Sunday: Statutes: Construction: Barber shops: Constitutional Jato:
Restraining enforcement of criminal law.
1. In sec. 4595, Stats. (1898), provldiDg that "any person who shall
keep open his shop, warehouse or workhouse, or shall do any
manner of lahor, husiness or work, except only works of neces^
slty and charity ... on the first day of the week shall be pun-
ished/' etc., the exception of •'works of necessity and charity*^
relates to the doing of 'labor, business or work" and not to
keeping open a "shop, warehouse or workhouse."
2. The proviso added to said sec. 4595 by ch. 300, Laws of 1909,
that "keeping open a barber shop on Sunday . . . shall not be
deemed a work of necessity or charity." did not change the ef-
fect of the statute or render it invalid as being discriminatory
against the keepers of such shops and as denying to them the
equal protection of the laws or depriving them of liberty or
property without due process of law.
8. Neither before nor after the addition of such proviso could keep-
ing open a barber shop on Sunday be justified as a work of ne-
cessity or charity; nor would the state be obliged, in a prose-
cution for keeping open any shop, workhouse or warehouse in
violation of said section, to plead or prove that such act was
not a work of necessity or charity.
4. Even if, when it enacted said proviso, the legislature supposed
that the exception as to works of necessity and charity applied
to the keeping open of a shop, warehouse, or workhouse, that
fact is not controlling upon the question of the construction of
the pre-existing statute.
5. The complaint in this action to have sec. 4595, Stats. (1898), as
amended, declared void, and to restrain the district attorney
and others from instituting any proceeding against plaintiff
for violation thereof, is held not to make a proper case for the
exercise of the power of a court of equity to enjoin the enforce-
ment of the criminal law.
Appeal from orders of the circuit court for Milwaukee
county: Geo. W. Burnell, Judge. Affirmed.
For the appellant there was a brief by Kronshage, McGov-
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558 SUPREME COUBT OF WISCONSIX. [Oct.
Stark V. Bttckos, 140 Wi& 557.
€t7%, Goff, Fritz & Hannan, and oral argument by G. D. Goff
and F. E. McGovertK They contended, inter alis^ that the
remedy by injunction was proper: 22 Cyc 903 ; 16 Am. &
Eng. Ency. of Law (2d ed.) 372 ; 5 Pom. Eq. Jur. 632, 636 ;
Pennoyer v. McConnaughy, 140 U. S. 1, 11 Sup. Ct. 699 ;
Davis & F. Mfg. Co. v. Los Angeles, 189, U. S. 207, 23
Sup. Ct 498 ; Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup.
Ct. 18; Smyth v. Ames, 169 U. S. 466, 18 Sup. Ct 418;
Ex parte Young, 209 U. S. 123, 28 Sup. Ct 441; Cain v.
Daly, 74 S. C. 480, 55 S. E. 110; Bryan v. Mayor, etc.
154 Ala. 447, 45 South. 922 ; Deems v. Mcyor, etc. 80 Md.
164, 30 Atl. 648, 26 L. R. A. 542; Greenwich Ins. Co. v.
Carroll, 125 Fed. 121 ; Milwaukee E. R. <f L. Co. v. Bradley,
108 Wis. 467, 84 K W. 870; Jos. Schliiz B. Co. v. Superior,
117 Wis. 297, 93 X. W. 1120; Bonnett v. Vallier, 136 Wis.
193, 116 X. W. 885 ; State ex rel. ZiUmer v. Kreutzberg, 114
Wis. 530, 90 X. W. 1098 ; Ritchie v. People, 155 HL 98,
40 X. E. 454. The injunction should have been continued
pendente lite: Valley I. W. Mfg. Co. v. Goodrich, 103 Wis.
436, 78 X. W. 1096 ; Quayle v. Bayfield Co. 114 Wis. 108, 89
X. W. 892; BartleH v. L. BaHlett & Son Co. 116 Wis. 450,
93 X. W. 473 ; De Pauw v. Oxley, 122 Wis. 656, 100 X. W.
1028. The statute in question (ch. 300, Laws of 1909) is un-
oonstitutional : Eden v. People, 161 III 296, 43 X. E. 1108;
Ex parte Jentzsch, 112 Cal. 468, 44 Pac 803 ; State v. Granr
neman, 132 Mo. 326, 33 S. W. 784; State v. Lorry, 7 Baxt
(Tenn.) 95; Ragio v. State, 86 Tenn. 272, 6 S. W. 401;
People V. Havnor, 149 X. Y. 195, 43 X. E. 541 ; Ex parte
Westerfield, 55 Cal. 550, 36 Am. Rep. 47; Armsirong v.
State, 170 Ind. 188, 84 X. E. 3, 15 L. R. A. n. 8. 646 ;
Pasadena v. Stimson, 91 Cal. 238, 27 Pac. 604. To be dis-
tinguished: Petit V. Minnesota, 177 U. S. 164, 20 Sup. Ct
666; State v. Petit, 74 Minn. 376, 77 X. W. 225; People v.
Ilavnor, 149 X. Y. 195, 43 X. E. 641; People v. Bellet,
^9 Mich. 151, 57 X. W. 1094; Ex parte Northnip, 41 Oreg.
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26] AUGUST TERM, 1909. 659
SUrk V. Backos, 140 Wis. 557.
489, 69 Pac 445; State v. Sapher, 25 Utah, 318, 71 Pae.
482; State v. Bergfeldt, 41 Wash. 234, 83 Pac. 177. The
statute was not enacted in response to anj public need : State
ex rel Zillmer v. Kreutzberg, 114 Wis. 530, 90 N. W. 1008;
State V. Redmon, 134 Wis. 89, 114 N. W. 137; State v.
Whitcom, 122 Wis. 110, 99 K W. 468. The amendment of
1909 was special legislation: State ex rel. Kellogg v. Cnrrens,
111 Wis. 431, 87 K W. 561; Black v. State, 113 Wis.
205, 89 N. W. 522; Ruber v. MerTcel, 117 Wis. 355, 94
X. W. 354; State ex rel. Risch v. Trustees, 121 Wis. 44, 98
X. W. 954; Bingliam v. Milwaukee Co. 127 Wis. 344, 106
N. W. 1071 ; State v. Evans, 130 Wis. 381, 110 K W. 241 ;
Servonitz v. State, 133 Wis. 231, 113 N. W. 277; Phipps v.
Wis. Cent. R. Co. 133 Wis. 153, 113 N. W. 456; and several
of the cases cited to other points. The proviso of 1909 was
imreasonable : Bonnett v. Vallkr, 136 Wis. 193 ; State v. Redr
mon, 134 Wis. 89 ; State ex rel. Mil. Med. Coll v. Chittenden,
127 Wis. 468, 107 K W. 500. The supreme court had
already put a construction on this statute: Jensen v. State,
60 Wis. 577, 19 N. W. 374; McArtkur v. Green Bay <6 M.
C. Co. 34 Wis. 139. And the proviso added in 1909 amounts
to an assumption by the legislature of the judicial power
of construing statutes: Sinking Fund Cases, 99 U. S. 700;
Comm. ex rel. Roney v. Warwick, 172 Pa. St. 140, 33 Atl.
373; James v. State, 45 Tex. Crim. 592, 78 S. W. 951.
For the respondents the district attorney and sheriff of
Milwaukee county there was a brief by August C. Backus,
district attorney, and Norman L. Baker, assistant district at-
torney, and the cause was argued orally by Mr. Baker.
T^OT the other respondents there was a brief by Boden &
Beuscher, and oral argument by F. X. Boden. To the point
that without reference to the constitutionality of the act in
questicm this was not a proper oase for the interposition of
equity to arrest the enforcement of the criminal law, re-
spondents cited: Carroll v. Greenwich Ins. Co. 199 U. S. 401,
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500 SUPEEME COTJET OF WISCONSIN. [Oct.
Stark V. Backus, 140 Wis. 667.
26 Sup. Ct 66; Smyth y. Ames, 169 U. S. 466, 18 Sup.
Ct 418; In re Savjyer, 124. TJ. S. 200, 8 Sup. Ct 482;
2 Story, Eq. Jur. (13tli ed.) § 893; FUts v. McGhee, 172^
U. S. 610, 19 Sup. Ct 169; Mirmeapolis B. Co. v. McGilr
livray, 104 Fed. 258; Logan v. Postal Tel & C. Co. 157
Fed. 570; Arbuckle v. Blwckhvrn, 113 Fed. 616; Christum
Moerlein B. Co. v. Hill, 166 Fed. 140; Denver v. Beede^
25 Colo. 172, 54 Pac 624; Foyer v. Des Flaines, 123 111.
Ill, 13 N. E. 819; Fleasa/nts v. Smith, 90 Miss. 440, 43
South. 475 ; Chicago v. Chicago City B. Co. 222 111. 560,.
78 N. E. 890; Delaney v. Flood, 183 N. Y. 323, 76 N. E.
209 ; Eden Musee Am. Co. v. Bingham, 125 App. Div. 780,.
110 N. Y. Supp. 210; Suesskind v. Bingham, 125 App. Div.
787, 110 N. Y. Supp. 213 ; Shepard v. Bingham, 125 App.
Div. 784, 110 N. Y. Supp. 217 ; and many otiier cases. Even
if the proviso added in 1909 was void the whole act is not
void, and the officers should be permitted to prosecute under
the valid remainder of the act, citing: 1 Lewis's Sutherland,
Stat Constr. (2d ed.) §§ 296 (169), 297 (170); Lynch v.
Steamer ''Economy/' 27 Wis. 69; Wilcox v. Hemming, 58
Wis. 144, 15 N. W. 435; and other cases. Upon the point
that the statute was constitutional the respondents relied upon-
the cases cited and sought to be distinguished by the appellant
supra, and added: Judefind v. State, 78 Md. 510, 28 Atl.
405, 22 L. R A. 721 ; Qmrles v. State, 55 Ark. 10, 17 S. W.
269, 14 L. R A. 192; State v. O'Roturk, 35 Neb. 614, 53
N. W. 591, 17 L. R A. 830; Phillips v. Innes, 4 CI. &
F. 234; Comm. v. Waldman, 140 Pa, St 89, 21 Atl. 248;
State V. Frederick, 45 Ark. 347 ; Stone v. Craves, 145 Mass.
353, 13 N. E. 906; Mills v. Charleton, 29 Wis. 400; Bound
V. Wis. Cent. B. Co. 45 Wis. 543.
Timlin, J. The appellant brought this suit in equity in
his own behalf and in behalf of all others similarly situated
against the sheriff and district attorney of Milwaukee county^
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26] AUGUST TERM, 1909. 5G1
Stark V. Backus, 140 Wis. 557.
and a guild or association of barbers and several members
and officers of that guild, praying that a certain act of the
legislature of this state, hereinafter referred to, be declared
unconstitutional and void, and that the defendants and each
of them be enjoined from issuing or attempting to issue any
warrant or other criminal process against the appellant or his
agents or servants, and from instituting or attempting to
institute or maintain any proceeding, action, or suit, civil or
criminal, against the plaintiff, for violation of said*pretended
law. Appellant based his claim to this relief upon the fact
that he is a citizen duly licensed or registered as a barber and
resides in Milwaukee, where he has conducted for more than
ten years last past and now conducts, in or adjacent to a
great hotel called the Plankinton House, a large barber shop,
with manicuring, bathing, shoe-polishing, and clothes-cleaning
adjuncts ; that he employs therein a large number of barbers
and others, and he has expended large sums of money in
fitting up said shop for these purposes, and has been accus-
tomed to keep the shop with all its adjuncts open on Sunday
for the accommodation of the public generally, and for that
of the guests and patrons of said hotel particularly, and for
his own gain. He avers that he has thereby built up and
established a large and profitable trade, larger and more prof-
itable on Sunday than on any other day, and- dependent on
this Sunday patronage. Great and irreparable loss will fall
upon the appellant and great inconvenience result to his said
patrons if this business is not permitted to continue as it
has heretofore been carried on. The defendant Milwaukee
Branch of the ^ykco7lsin Barbers' Association, and the other
defendants (except the sheriff and district attorney), and
other persons unknown, did prior to the passage of the act in
question "combine, associate, agree, mutually undertake, and
concert together for the purpose of wilfiilly and maliciously
depriving the plaintiff of the good will of his business and to
bring about his personal and business ruin, and in further-
VoL.140— 36
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562 SUPREME COURT OF WISCONSIN. [Oct.
Stark V. Backus, 140 Wis. 557.
ance of such conspiracy were active in and responsible for the
passage of the act in question^ and caused said statute to be
prepared and introduced in the legislature, and used their
efforts, influence, and persuasion to have it enacted." Then,
in furtherance of the same unlawful conspiracy, and to de-
grade the plaintiff and prejudice him before the public, and
to injure and destroy plaintiff's business, they now, after the
passage an^J publication of the act in question, threaten and
intend to prosecute the plaintiff and his agents and servants
under the said law by many and continued prosecutions, if
plaintiff keeps open his said shop or place of business on
Sunday for the purpose of engaging in the business before
described. Repeated prosecutions and many arrests of the
plaintiff and his employees are threatened if they continue to
operate this shop on Sunday. This would result in a multi-
plicity of suits, in each of which the question of the constitu-
tionality of this statute would be raised and must be deter-
mined. Upon a complaint of this kind the appellant obtained
from a court commissioner an injunctional order prohibiting
the defendants and each of tJiem until the further order of
the court from issuing or attempting to issue, applying for
or having issued, any warrant or process against the appel-
lant, and from instituting or attempting to institute any
action or proceeding, civil or criminal, against the appellant
for any alleged violation of said pretended law. On motion
the circuit court, at the instance of the sheriff and district
attorney by one order, and at the instance of the other de-
fendants by another and separate order, vacated the said
injunctional order, and these appeals by the plaintiff are from
the last-mentioned orders of -the circuit court.
2. Two questions are presented for consideration: Is the
statute in question valid? Is there a proper case presented
for enjoining the sheriff and the district attorney from en-
forcing the criminal law? The appellant makes no attack
upon Sunday laws in general, conceding in substance, as we
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26] AUGUST TERM, 1909. 563
Stark V. Backus, 140 Wis. 557.
understand him, that the legislature has power to select "the
venerable day of the Sun," or the no less venerable "Sabbath
Day," and enforce in the interest of public health and welfare
a cessation of business and labor on that day. But it is con-
tended that because of the change in the statute law on that
subject wrought by ch. 300, Laws of 1909, the law is no
longer uniform in its operation, but absolutely prohibits those
engaged in shaving and hair cutting, and incidentally those
engaged in conducting as adjuncts to such business bathing,
manicuring, shoe-polishing, and dothes-cleaning departments,
from keeping open a shop or workhouse on Sunday. It ac-
complishes this by declaring that keeping open a barber shop
on that day for the purpose of cutting hair and shaving beards
shall not be deemed a work of necessity or charity, while it
permits keepers of similar shops, indistinguishable upon any
proper or lawful basis of classification, to require the state
to show that similar acts upon that day on their part were
not works of necessity and charity, or permits such jJersons
fo show that similar acts on their part were acts of necessity
or charily and so justify their like acts and escape conviction.
It is contended tJiat, there being no reasonable or valid ground
for such distinction or classification, the act in question with
the proviso of 1909 denies to appellant the equal protection
of the law and deprives him of liberty and property without
due process of law, thus contravening sees. 1 and 8, art I, of
the constitution of Wisconsin, and art XIV of the constitu-
tion of the United States.
The following general Simday law, apparently borrowed
from Massachusetts, has been upon our statute books since
1849:
"Any person who shall keep open his shop, warehouse or
workhouse, or shall do any manner of labor, business or work,
except only works of necessity and charity ... on the first
day of the week shall be punished by fine not exceeding ten
dollars; ... no civil process shall be served or executed on
said day." Sec 4595, Stats. (1898).
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664 SUPKEME COUET OF WISCONSIN. [Oct.
Stark T. Backus, 140 Wis. 557.
The legislature of 1909, by eh. 300 of the laws of that year^
amended this statute, thereby making no change except by
adding:
"Provided, however, that keeping open a barber shop on
Sunday for the purpose of cutting hair and shaving beards
shall not*be deemed a work of necessity or charity."
It will be observed that prior to the amendment of 1909 the
exception of works of necessity and charity related to "labor,
business or work" and not to keeping open a shop, ware-
house, or workhouse. This we think is very apparent from
the words of the statute, and this has been the construction of
the similar statute in Massachusetts. Comm. v. Dextra, 143-
Mass. 28, 8 K E. 756 ; Comm. v. Starr, 144 Mass. 359, 11
K E. 533; Comm. v. Osgood, 144 Mass. 362, 11 N. E. 536;
Comm. V. Dale, 144 Mass. 363, 11 N. E. 534; Comm^ v. Has,
122 Mass. 40; Comm. v. Nagle, 117 Maas. 142; Comm^ v.
Collins, 2 Gush. 556. There is quite a variety of Sunday
statutes, and it aids very little in clearing up the situation
in hand to cite cases from the courts of Illinois, California,
or New York, where the Sunday statutes are essentially
different Such cases may be useful and indeed highly per-
suasive upon the proposition that where the statute does,
without reasonable ground therefor, discriminate against bar-
bers or barber shops it will be held invalid, but do not at all
touch the question whether the statute here does so unrea-
sonably discriminate.
We do not find that this court has ever held that the excep-
tion contained in the statute under consideration related to
the offense of keeping open on Sunday a shop or workhouse.
If we consult only the syllabus of Jensen v. State, 60 Wis.
577, 19 N. W. 374, that case would seem to lend color to
the contention that the exception in question applied to all
offenses under this section of the statutes; but the complaint
held to be defective is preserved in the report of that case,
and from this it appears that the accused was there charged,
not with keeping open a shop or workhouse, but with an act
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26] AUGUST TERM, 1909. 5G5
Stark V. Backus, 140 Wie. 557.
of "labor, business, or work/' So we must conclude that
prior to the amendment of 1009 the appellant could not have
justified the keeping open of his barber shop on Sunday upon
the ground that this was a work of necessity or charity, for
the reason that the exception in the statute in question did
not at all relate to the offense of keeping open a shop or work-
house, if for no other reason. The appellant could have made
no such defense prior to the amendment of 1909, and he can
make no such defense after this amendment where he is
charged with keeping open his shop or workhouse. The state,
upon such a charge fully and properly pleaded, was not
then, and is not now, required to negative this exception by
pleading or proof. On the other hand, then as now, if the
appellant was charged with an act of shaving or hair cutting
on Sunday, the state must negative the exception in the
statute by pleading and proof (La Point v. Cady, 2 Pin. 515 ;
Splinter v. State, post, p. 5G7, 123 N. W. 97), or the appel-
lant so charged might aver if he pleased, and prove if he
could, that the act. was one of necessity or charity. It may,
however, be noticed in passing that in Michigan, where the
Sunday statute is so framed that the exception does apply to
the offense of keeping open shop, it was decided that the
legislature had power to withdraw the benefit of the exception
from barber shops on the ground that there did or might exist
sufficient reasons for applying a different rule to such shops.
People V. Bellet, 99 Mich. 151, 67 K W. 1094.
But it may be argued that the legislature of 1909 thought
that the exception with respect to works of necessity and
charity applied to the offense of keeping open a shop or work-
house for the purpose of carrying on business therein, or it
would not have amended the law by adding the proviso in
question. This is probably true as matter of fact^ but not
controlling in questions of construction. 26 Am- & Eng.
Ency. of Law (2d ed.) 680, and cases cited; Railroad Tax
Cases, 13 Fed. 722. Adding such proviso to an existing law
is not the same as making it part of a new statute. The
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566 SUPREME COUET OF WISC0:NSIN. [Oct.
Stark V. Backus, 140 Wis. 557.
legislature may well have been mistaken with reference to a
matter so much outside of its jurisdiction as the construction
of a pre-existing statute. McNanghton v. Ticknor, 113 Wis.
555, 89 N. W. 493.
Considering the clear language of the former statute, the
amended statute only tends to the conclusion that the later
legislature acted from abundant^ or perhaps superabundant^
caution. State v. Petit, 74 Minn. 376, 77 N. W. 225, af-
firmed Petit V. Minnesota, 177 U. S. 164, 20 Sup. Ct 666.
The Minnesota statute under consideration in the cases last
cited presented a much stronger case against the validity of
the proviso than the case at bar. There was by that statute
no separate offense created and not affected by the exception,
but all labor on Sunday was prohibited excepting only works
of necessity and charity. Works of necessity and charity
were then defined by the same statute to include whatever
is needful during the day for the good order, health, or
comfort of the community. To this was afterwards added a
proviso in the same words as the proviso here in question.
But it was considered that the act of keeping open a barber
shop on Sunday as mentioned, in the proviso could not como
within the exception prior to the amendment because not a
work of necessity or charity, notwithstanding the broad scope
given those words by the definition found in the statute, and
that the addition of the proviso was but the result of abundant
caution on the part of the legislature. Our statute as it now
exists, with the proviso of 1909 added, contains no discrim-
inatory features, and its validity must be affirmed.
3. Aside from the question of the constitutionality of the
act of 1909, this complaint did not make a proper case for the
exercise of the power of a court of equity to enjoin the en-
forcement of the criminal law, and it is not to be presumed
from the brevity of the opinion upon this point that the ques-
tion has not been carefully considered and fully determined.
By the Court. — The orders appealed from are affirmed.
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26] AUGUST TERM, 1909. 567
Splinter v. State, 140 Wis. 667.
Splinter, Plaintiff in error, vs. The State, Defendant in
error.
Odoher 9— October 26, 1909.
Criminal law: Pleading: yegaiiving exceptions: Btatutes: Bate of
adulterated milk.
1. Where an exception is stated in a separate section of the statute
and constitutes no essential part of the definition or descrip-
tion of an offense, it need not be negratived by the prosecution,
but is a matter of defense.
2. Thus, in a prosecution under sec 4607, Stats. (Supp. 1906; Laws
of 1905, ch. 13S), for having in possession adulterated milk
with intent to sell it, the state need not allege or prove that it
was not to be sold as and for "skimmed milk," within the ex-
ception stated in sec. 4607a.
3. Having in possession seventeen cans of milk with intent to sell
the same, in six of which cans the milk contained less than the
prescribed percentage of milk fat, was a violation of the stat-
ute, although the average of the entire lot was above the legal
standard.
Ereob to review a judgment of the municipal court of Mil-
waukee county : A. C. Brazeb, Judge. Affirmed.
The plaintiff in error, hereinafter called the defendant, was
arrested on a complaint charging that on October 30, 1907,
in the county of Milwaukee and state of Wisconsin, Frank L.
Splinter did then and there unlawfully have in his possession,
with intent then and there to unlawfully sell, adulterated
milk, which said milk contained less than three per centum of
milk fat, contrary to the statute, etc. The defendant was a
milk dealer and was selling considerable quantities of milk to
the George Ziegler Company under contract. Of the seven-
teen cans delivered on October 30th, six contained less than
three per centum of milk fat. Under the contract the de-
fendant was required to furnish milk that would show an
average test of three and three-tenths per centum of milk fat.
The defendant, at the close of the evidence offered by the
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568 SUPREME COURT OF WISCONSIN. [Oct.
Splinter v. State, 140 Wia. 567.
state, moved that he be discharged for lack of evidence to
show that a crime had been committed. The motion was
<lenied and defendant excepted to the ruling of the court.
The defendant was found guilty, and thereafter he made a
•general motion in arrest of judgment, in whidi no specific
•grounds for arresting the judgment were set forth. The
motion was denied and exception was taken to such ruling.
From the judgment of conviction defendant prosecutes this
writ of error.
The following errors are assigned : (1) Refusal to discharge
because no offense was stated in the complaint; (2) failure to
discharge for want of evidence showing guilt on the part of
the defendant; (3) because the verdict is contrary to the
evidence and contrary to law.
For the plaintiff in error there was a brief by Schwefel &
Knoell, and oral argument by Adolph Schwefel.
For the defendant in error there was a brief by August C.
Backus, district attorney, and Norman L. Baker, assistant
district attorney, and the Attorney General, of counsel, and
oral argument by Mr. Baker.
Barnes, J. Sec 4607, Stats. (Supp. 1906 ; Laws of 1905,
oh. 138), makes it a misdemeanor for any person to sell, offer
to sell, or have in his possession for the purpose of sale, any
adulterated milk. Sec 4607(i provides that in all prosecu-
tions under the preceding section the term "adulterated milk"
shall mean milk containing less than three per centum of milk
fat The section further provides that nothing in the act
shall be construed as prohibiting the sale of milk commonly
known as "skimmed milk," when the same is sold as and for
^'skimmed milk."
The defendant contends that the complaint is faulty be-
cause it does not allege that the milk in question was not kept
and offered for sale as skimmed milk, and that the proof sub-
mitted by the state was insufficient to sustain a conviction
because it failed to establish the same fact The sufficiency
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26] AUGUST TERM, 1909. 5G9
Splinter v. State, 140 Wis. 507.
of the complaint is not raised by any exception. The suffi-
ciency of the evidence is raised by an exception to the refusal
of the court to discharge the defendant after the state had
rested its case. The proviso in regard to the sale of skimmed
milk is not found in sec. 4607, which malces it an offense to
sell adulterated milk, but is foimd in the following section.
The rule is quite general that where an exception is in a
separate section of the statute, or in a proviso which is dis-
tinct from the enacting clause, it is a matter of defense which
the prosecution need not anticipate or notice. Metzher v.
People, 14 111. 101 ; SoTcel v. People, 212 HI. 238, 72 N.
E. 382; Alexander v. State, 48 Ind. 394; RusseU v. State,
50 Ind. 174; State v. Williams, 20 Iowa, 98; State v. Van
Vliet, 92 Iowa, 476, 61 N. W. 241; State v. Oumey, 37
Me. 149; State v. Boyington, 56 Me. 512; Comm. v. Hart,
11 Gush. ISO; People v. Phippin, 70 Mich. 6, 37 N. W. 888 ;
Kline v. State, 44 Miss. 317 ; State v. McGlynn, 34 N. H.
422; State v. Cassady, 52 N. H. 500; Mayer v. State, 63 K
J. Law, 35, 42 Atl. 772 ; State v. Price, 71 N. J. Law, 249,
58 Atl. 1015; Comm. v. Shelly, 2 Kulp (Pa.) 300; Villines
V. State, 96 Tenn. 141, 33 S. W. 922 ; Bell v. State, 104 Ala.
79, 15 South. 557; State v. Railroad Co. 54 Ark. 546, 16
S. W. 567 ; State v. Thompson, 2 Kan. 432 ; Comm, v. Benge,
13 Ky. Law Eep. 591; Barber v. State, 50 Md. 161; State
v. Cox, 32 Mo. 566; Stale v. Harris, 119 N. C. 811, 26
S. E. 148.
Such rule was adopted in this state in Byrne v. State,
12 Wis. 519. The modification of this rule adopted by some
courts is that it is necessary to negative an exception or
proviso not contained in the enacting clause of a statute where
it constitutes an element of the description of the offense.
U. S. V. Cooh, 17 Wall. 168, 173, and cases cited in 22 Cyc.
346. There is no difficulty about stating an offense under sec.
4607, Stats. (Supp. 1906; Laws of 1905, ch. 138), without
negativing the proviso contained in sec. 4607a^ Under a stat-
ute prohibiting the sale of liquors to Alaska Indians except
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570 SUPKEME COUKT OF WISCONSIX. [Oct.
Donovan v. Stote, 140 Wis. 570.
"for medicinal, mechanical, or scientific purposes," it was held
not necessary to negative the exceptions, because they con-
stituted no essential part of the definition of the oifense.
Shelp V. U. 8. 81 Fed 694, 26 C. C. A. 570. The foUow-
ing cases also hold that it is unnecessary to negative such a
proviso as the one under consideration: State v. Kendig,
13a Iowa, 164, 110 N. W. 463 ; State v. Welter, 171 Ind. 53,
85 N. E. 761 ; Hale v. State, 58 Ohio St 676, 51 K E. 154;
State V. Heffeman, 28 R I. 477, 68 AtL 364; Mayer v. State,
64 N. J, Law, 323, 45 AtJ. 624.
Otherwise we deem the proof suflScient to sustain a convic-
tion. Six pf the seventeen cans examined were below the
legal standard. Taking the average test of the entire lot
it was a trifle above such standard. But the statute makes
it an offense for any person to have in his possession with
intent to sell or offer for sale "arty adulterated milk." Mani-
festly, six separate cans containing forty-eight gallons of
milk fell within the condemnation of the statute, unless they
contained skimmed milk which was kept for sale and sold as
such. Instead of showing that tbe milk in question was kept
for sale and sold as skimmed milk, the evidence of the de-
fendant showed quite conclusively that it was not
By the Court. — Judgment affirmed.
Donovan, Plaintiff in error, vs. Thb State, Defendant in
error.
October 9 — October 26, 1909.
Rape: Evidence: Oorroboration.
A conviction of rape cannot be sustained upon the uncorroborated
testimony of a prosecuting witness whose story Is Intrinsically
Improbable and almost incredible, especially if she Is a person
of feeble mind.
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26] AUGUST TEEM, 1909. 671
Donovan ▼. State, 140 Wis. 570.
Erbob to review a judgment of the circuit court for Jeffer-
son county : Geoeob Geimm, Circuit Judge. Reversed.
For the plaintiff in error there -was a brief by Gusiav
Bibchheit, attorney, and Kronshage, McGovem, Ooff, Fritz &
Uannan, of counsel, and oral argument by Mr. Bxichheit and
Mr. F. E. McGovem.
For the defendant in error there was a brief by the At-
torney General, B. W. Ltieck, district attorney, and F. T.
Tucker, assistant attorney general, and oral argument by Mr.
LuecJc.
W1NSI.0W, C. J. It is not believed that any good purpose
would be served by a recital of the testimony in this case.
The plaintiff in error was convicted of rape. The crime was
charged to have been committed June 1, 1906, upon the per-
son of one Elsie Weichert, who was then imder fourteen years
of age and was adjudged a feeble-minded person before the
trial. The conviction was based upon the uncorroborated
testimony of the prosecuting witness alone, and her story was
intrinsically improbable and almost incredible. Under these
circumstances the conviction cannot be sustained. The rule
in such cases is that "where the evidence of the prosecuting
witness bears upon its face evidence of unreliability, to sus-
tain a conviction there should be corroboration by other evi-
dence as to the principal facts relied on to constitute the
crime.'' O'Boyle v. State, 100 Wis. 296, 76 N. W. 989 ;
Hofer V. State, 130 Wis. 576, 110 N. W. 391. Especially
must this rule be held applicable in a case where the prosecut-
ing witness is a person of feeble mind.
By the Court, — Judgment reversed, and action remanded
for a new triaL
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572 SUPREME COURT OF WISCONSIN. [Nov.
Sanborn v. Carpenter, 140 Wis. 572.
In be Caepentek: Sanborn, Appellant, vs. Caepenteb,
Respondent.
October S—Novemher 12, 1909,
Incompetent persons: Ouardians: Refusal to appoint: Who may ap-
peal: **Person aggrieved."
1. Under sec. 3976, Stats. (1898), any relative or friend of a person
alleged to be 'mentally incompetent may institute a proceeding
in the county court for appointment of a guardian, but under
sec. 403}, besides certain specified official persons, only a "per-
son aggrieved" by the determination of the court can appeal
therefrom.
2. No person is "aggrieved," within the meaning of said sec 4031,
unless the determination affects adversely his legal rights;
mere affront to desire or sentimental interest being insufficient
'3. Next of kin or heirs apparent have no legal rights or interest in
the property of a living relative.
A. Refusal to appoint, upon the petition of nonresident adult sister,
a guardian for an alleged incompetent adult residing in this
state, did not affect any legal rights of the petitioner, she having
no legal right to control the custody or conduct of the alleged
incompetent, no legal right to support from, or legal duty of
care or support to, the latter, and no legal rights in or to the
property of the latter.
Appeal from a pdgment of the circuit court for Milwau-
kee county : J. C. Ludwig, Circuit Judga Appeal dismissed.
The appellant, Eliza E. Sanborn, a nonresident of this
state, but a sister of the alleged incompetent, who together
with another sister and a brother are the next of kin, applied
to the coimty court for the appointment of a guardian to con-
serve the property of Sa/rah A. Carpenter, alleging her incom-
petence. The coimty court decided in favor of the applica-
tion, which decision, on appeal to the circuit court, was re-
versed and cause remanded, whereupon the county court en-
tered its order denying the petition, from which order this
appellant appealed to the circuit court, where, no evidence
being offered in support of the petition, judgment was entered
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12] AUGUST TEEM, 1909. 573
Sanborn v. Carpenter, 140 Wis. 572.
affirming the order of the county courts from which judgment
said petitioner appeals. Sarah A. Carpenter moves to dis-
miss the appeal on the ground that Eliza E. Sanborn has no
interest and is not aggrieved and is therefore incompetent to
bring the appeal.
For the respondent, in support of the motion, there was a
brief by John H. PoajlI, attorney, and Miller, Mack & Fair-
child, of counsel, and oral argument by Mr. Paid and Mr.
Geo. P. Miller.
For the appellant, contra, there was a brief by Quarles,.
Spence & Quarles, attorneys, and J. V. Quarles, Jr., of coun>
scl, and oral argument by J. V. Quarles, Jr.
Dodge, J, Tlje proceeding authorized by our statutes
(sec. 3976 et seq.. Stats. 1898) for the appointment of guard-
ians for incompetent persons involves a most violent inter-
ference with the most sacred rights of property and civil lib-
erty, unless, indeed, there does exist the full degree of incom-
petency specified by the statute. Unless that exists, and
therefore in the question whether it exists, the allied in-
competent of course has the most obvious interest adversary
to the proceedings. When, however, incompetency does exist,
and is or threatens to be effective in the dissipation of prop-
erty and impoverishment of the subject, doubtless the wel-
fare of both the incompetent person and of the community
at large is involved in favor of affirmative action. It is in
line with such considerations that the statute vests in the
county court authority to proceed to investigate upon the sub-
ject being brought to its notice by even a relative or a friend
of the alleged incompetent, irrespective of any pecimiary
or other legal interest which such petitioner may have in
the matter. It does not follow from this, however, that the
legislature has deemed it essential to the protection of either
the incompetent person or the public that the determination
reached by the county court, a court of gre^t dignity and or-
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574 SUPREME COURT OF WISCONSIN [Nov.
Sanborn v. Carpenter, 140 Wis. 572.
ganized to be intrusted with most important jurisdiction and
responsibility, shall be subject to appeal by persons having
no legal interest to justify their further interference. Nim-
hlet V. Chaffee, 24 Vt. 628; Studabaker v. Markley, 7 Ind.
App. 368, 34 N. E. 606 ; In re Ouardianship of McLaughlin,
101 Wis. 672, 78 N. W. 144; In re Guardianship of Welch,
108 Wis. 387, 84 K W. 550. The legislature may well have
believed that the county courts were competent tribunals to
v/hich, so far as the public welfare was concerned, those ques-
tions might finally be submitted, and that they did so view it
is not antagonized by the fact that appeals lie in all cases from
decisions of the county courts, in favor of individuals whose
l^al rights are claimed to be invaded by such decisions. The
statutes themselves are significant of a marked distinction as
to the conditions and persons that may originally arouse the
duty of the county court to inquire into competency and those
which may justify attack on its decisions and thereby greatly
enhance and aggravate the injury to the subject of the charge
by multiplication of litigation and expense.
While sec. 3976, Stats. (1898), permits any relative or
mere friend to awaken the activities of the county court in
the first instance, the right to appeal is limited to certain
specified official persons and to "any person aggrieved" by
the determination which that court may make. Sec. 4031,
Stats. (1898). This phrase of the statute has from the earli-
est days been construed to the effect that no one can be ag-
grieved, in the sense of the statute, unless the determination
affects adversely his l^al rights ; that mere affront to desire
or sentimental interest is insufficient. Strong v. Winslow,
S Pin. 27; Marx v. Rowlands, 59 Wis. 110, 17 N. W. 687;
In re Guardianship of McLaughlin, 101 Wis. 672, 78 N. W.
144; Estate of Cole v. Beurhaus, 102 Wis. 1, 78 N. W. 402.
Obviously no personal rights of appellant are involved, for
an adult nonresident sister has no legal right to control the
-custody or conduct of another adult sister residing here, nor
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12] AUGUST TERM, 1909. 575
Sanborn v. Carpenter, 140 Wis. 572.
any right to support from, or legal duty of care or support
to, the latter. It is equally obvious that no legal rights of
appellant in or to property are affected. Even a next of kin
^r heir apparent has no right or legal interest in the property
of a living relative. Nemo est hceres viventis. Broom, Leg.
Max. (7th Am. ed.) 622. By reason of the absolute right of
disposal of property by the owner, any expectancy or chance
•of inheritance is too conjectural and remote to be recognized
as a legal right. In re GxmrdiansMp of McLaughlin, supra;
Hamilton v. Probate Court, 9 R. I. 204 ; Nimhlet v. Chaffee,
supra. So that the appellant is not a party aggrieved as the
term in sec. 4031 is ordinarily construed.
No analogy exists, as claimed, between the mere petitioner
in guardianship proceedings and an administrator or execu-
tor who, as suggested by appellant, may appeal from order of
the county court although without private interest in an es-
tate. McKenney v. Minahan, 119 Wis. 651, 97 N. W. 489;
Jn re Paulson's Will, 127 Wis. 612, 107 N. W. 484. The
right of administrators and certain other oflScers to appeal
is expressly conferred upon them by statute ex officio (sec.
4031, Stats. 1898), and is not expressly conferred on a mere
petitioner.
It is, however, argued by appellant that a more liberal in-
terpretation should be given to the word "aggrieved" in guard-
ianship proceedings by reason of their peculiar character and
purposes and the probability at least of the incapacity of the
object of them to care for his own interests; and it is urged
that the word should be extended to those upon whom will be
cast the legal duty to support the alleged incompetent in case
of the dissipation of his property, or to those who, being di-
rectly and legally dependent upon him for* support, will be
deprived of their legal right to such support, and also, which
is alone material to the present appeal, that it should be ox-
tended to next of kin or heirs apparent who, in the absence
-of other disposition, would inherit in case of the death of
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576 SUPREME COURT OF WISCONSIN. [Nov.
Sanborn v. Carpenter, 140 Wis. 572.
the alleged incompetent person. This general contention
was in part favorably considered in Merrill v. Merrill, 134
Wis. 395, 114 N. W. 784, where it was held that a son, resi-
dent in this state, and charged by law with the duty of sup-
porting his father in case the latter became indigent, had
such direct interest in conserving his father's estate that he
might appeal from an order refusing appointment of guard-
ian. The case went no further, and repudiated any decision
upon the point material to this case. The distinction in the
case of a mere next of kin or heir apparent is that the burden
of support cast on a son is an injury to a right presently ex-
isting in the person seeking to protect it, while, as already
pointed out> the mere heir apparent has no present legal right
whatsoever, but a mere conjectural expectancy.
True, several cases are cited by appellant where the courts-
of other states have held in favor of the right of such an heir
to appeal in guardianship proceedings. Tiemey v. Tiemey^
81 Neb. 193, 115 N. W. 764; In re Olson, 10 S. Dak, 648,
75 N. W. 203 ; Boynton v. Dyer, 18 Pick 1 ; Lawless v. Rea-
gan, 128 Mass. 592; Briard v. Goodale, 86 Me. 100, 29 Atl.
946. In each of these cases, however, a careful examination
will disclose that the right to appeal is predicated upon some
special and peculiar statutory provision, either expressly or
impliedly declaring a legislative purpose that such heir ap-
parent or other relative be deemed to have a legal interest
in the proceedings. See Penniman v. French, 2 Mass. 140.
Apart from such cases there are of course others to the effect
that relatives or friends may be allowed to act as next friend,
or, as in this state, as guardian ad litem, to bring appeal in
the interest of the alleged incompetent person. We have not
had called to our attention or found any direct authority that,
in the absence of other statutory direction, a mere heir ap-
parent or next of kin can be deemed to be aggrieved for the
purposes of an appeal in such proceedings. The contrary is
held in many jurisdictions. State ex rel. Amy v. Bazille, 81
Minn. 370, 81 N. W. 120; Studabaker v. Marhley, 7 Ind.
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12] AUGUST TERM, 1909. 577
Sanborn v. Carpenter, 140 Wis. 577.
App. 368, 34 N. E. 606 ; Hamilton v. Prolate Court, 9 R I.
204; Nimilet v. Chaffee, 24 Vt 628.
For reasons hereinbefore stated, and amplified in the de-
cisions cited, we have reached the conclusion that the legisla-
ture did not intend, and it would not be promotive of public
policy, to extend the right of appeal and the ordinarily well-
recognized limitation of the term "aggrieved" in appeal stat-
utes further than was declared in Merrill v. Merrill, supra.
We therefore hold that the appellant here is shown to have
suffered no injury to her legal rights and is not aggrieved by
the judgment appealed from, and therefore has no right by
our statute to appeal.
By the Court. — ^Appeal dismissed.
Ik m Carpsnteb: Sakbobn, Appellant, vs. CAUPcmB, Respondent
October 5— November 12, 1909.
Appkai, from a judgment of the circuit court for Bfilwaukee county:
J. C. LuDwiG, Circuit Judge. Appeal dismissed.
This appeal is in the same matter as In re Carpenter, ante, p. 672,
123 N. W. 144: presents first an appointment of a special guardian
by the county court before hearing on the application for a general
guardian. Subsequently, upon finally denying the petition for gen-
eral guardian In compliance with the mandate of the circuit court,
the county court entered order canceling and setting aside its former
order appointing a special guardian. From that order the petitioner
appealed to the circuit court, where, on May 14, 1909, Judgment was
entered affirming said order of the county court, from which judg-
ment said petitioner appeals. Sarah A. Carpenter, the respondent,
moves to dismiss said appeal for the same reason stated In In re
Carpenter, ante, p. 572, and other reasons.
For the respondent. In support of the motion, there was a brief by
John H, Paul, attorney, and Miller, Mack d Fairchild, of counsel,
and oral argument by Mr, Paul and Mr. Geo. P. Miller.
J. V. Quarles, Jr., of counsel, contra.
Pkb Cubiam. The same reasons which necessitate the dismissal
of the appeal in In re Carpenter, ante, p. 572, 123 N. W. 144, set
forth in the opinion presently filed therein, equally necessitate siml
lar action in this case.
The appeal is dismissed.
Vol. 140 — 37
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578 SUPEEME COURT OF WISCONSIN. [Nov.
Scheanert v. Albere, 140 Wis. 578.
SoHBUNEBT, Eespondeiit, vs. Albebs and others, imp., Ap-
pellants.
Octoher 8— November 12, 1909.
Conspiracj^: Inatituting inquiry as to sanity: Justification: Court and
jury.
In an action for damages for a malicious conspiracy to cause
plaintiff's commitment to an asylum for the insane, the evi-
dence is held, as a matter of law, to show that defendants were
justiiled in instituting the judicial inquiry as to plaintlfTs san-
ity, it appearing that they acted in good faith upon informa-
tion which came to them from sources entitling it to credit and
which was of such nature as to justify a belief in the minds of
men of reasonable intelligence and prudence that plaintiff was
mentally deranged.
Appeal from a judgment of the circuit court for Ozaukee
county : W. J. Tuenee, Judge. Reversed.
An action for damages wherein plaintiff alleges he was in-
jured by the defendants maliciously conspiring together to
bring about his illegal commitment to an asylum for the in-
sane for the wrongful purpose of preventing publication of
the fact that adulterous relations existed between plaintiff's
wife and the defendant Henry A, Albers. The court dip-
missed the action as to the defendant Herman Heuer. The
jury foimd that the defendant Theodore HoUnagel acted in
good faith and without malice, and no judgment was awarded
against him. Judgment was awarded against the other de-
fendants for the damages found by the jury, amounting, with
the costs, to $578.83. The defendants made various motions
which raised the question of the sufBciency of the evidence to
sustain the findings of the jury, the correctness of the instruc-
tions given, and other alleged errors. This is an appeal from
the judgment.
For the appellants there was a brief by Joseph B. Doe and
William F. ScTianen, and oral argument by Mr. Doe.
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12] AUGUST TERM, 1909. 579
Scheanert v. Albers, 140 Wis. 578.
For the respondent there was a brief by Boden & Beuscher,
and oral argument by F. X. Boderu
SiEBECKEB, J. It appears that on July 15, 1907, the de-
fendants Theodore HoUnagel, John E. Mueller, and Chas. A.
Maas presented a petition to the county judge of Ozaukee
county for a judicial inquiry as to plaintiff's mental condi-
tion and for an order committing him to an insane asylum if
he should be found to be insane. Thereupon the county court
appointed Drs. William P. McGovem and George F. Savage,
residing in said county, to make an examination of and in-
quiry into the mental condition of the plaintiff and to make
report thereof to the court. On July 16, 1907, these doctors
made a report on the inquiry, and among others they re-
sponded to questions as follows:
"In your opinion is the patient insane? A. Not at pres-
ent, but with present surroundings he may be." "Is this the
first attack? If not, when did others occur, and what was
their duration ? A. No ; two years ago had an attack of nerv-
ousness." "What was the cause of this attack ? A. Pleurisy
and bad health." "Is the disease increasing or stationary?
A. Increasing." "Are there rational intervals? A, Yes."
"On what subject or in what way is derangement now mani-
fested? State fully. Are there any permanent hallucina-
tions or delusions ? A. Continual strife with neighbor. No ;
nervous condition." "Has the patient shown any disposition
to injure others? If so, was it from sudden passion or
premeditation? A. Yes; premeditated when tormented."
"Should the person be placed in temporary detention quar-
ters, or be sent to an insane hospital or asylum for treatment ?
A. Sent to sanitarium for treatment."
The other inquiries answered have only a slight bearing, if
any, on the existence of any fact or condition tending to show
that plaintiff was insane.
At the conclusion of the testimony the court found that
there was no evidence that the defendant Henry A, Albers
had sustained adulterous relations with the plaintiff's wife
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580 SUPREME COUET OF WISCONSIN. [Nov.
Scheunert v. Albere, 140 Wis. 678.
and this issue was withdrawn from the jury. It appeared,
however, that the plaintiff for some time prior to the insti-
tution of the lunacy proceedings, when he published it, had
secretly fostered the belief that such adulterous relations had
existed for about twelve years ; that he accused his wife of
infidelity, spoke to her father, Mr. Heuer, about it, and to
various persons at different saloons and to others on other
occasions, and that he manifested ill will and a desire to do
personal violence to Dr, Albers, being restrained therefrom
through fear of the legal penalties consequent upon such ac-
tion. It also appears that Dr. Albers advised with an attor-
ney as to the proper and legal course to pursue under the cir-
cumstances; that his attorney instituted inquiries, and was
credibly informed of plaintiff's attempt to secure evidence
of secret visits by Dr. Albers to his home in his absence, and
that, relying in part on the fact that he had observed a re-
semblance in one child's feet to those of the doctor, he had
asserted that Dr. Albers was the father of his two oldest chil-
dren.
The plaintiff testified that until 1901 he had employed the
doctor as his family physician to treat all of the family, that
the doctor had attended his wife at childbirth, and that he
had taken special precautions lest the medicines prescribed by
the doctor for him should have a poisonous effect upon him.
It also appears that the defendants had all been informed of
these facts, and that plaintiff had manifested an ungovern-
able temper, had a disposition toward secret anger, inducing
him to violence, and that in view of his general demeanor his
relatives and others informed thereof were apprehensive of
actual harm. These mental states of the plaintiff and others
of like nature were known to the defendanta
It appears that these facts were made known to Dr. Mc-
Govem by Dr. Albers' s attorney, and that the doctor ex-
pressed his belief that the plaintiff was mentally deranged
and that safety required that his mental condition be oflSciaUy
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12] AUGUST TERM, 1909. 681
Scheunert v. Albers, 140 Wis. 578.
ascertained to determine whether or not he ought to be com-
mitted to an asylum and receive treatment The defendants
were informed of Dr. McGovem's opinion in the matter. It
is imdisputed that the district attorney, the town chairman,
and the county judge were all consulted, and that upon these
facts they advised an inquiry into plaintiff's mental condi-
tion, and that the defendants were informed thereof before
instituting the proceedings. The evidence sustains and cor-
roborates these facts in the case. The record is barren of any
evidence showing that the defendants acted without consider-
ing all these facts. It clearly tends to show that the defend-
ants believed that they were true, and relying thereon insti-
tuted the proceedings to examine into plaintiff's sanity. Upon
the whole evidence the inquiry is whether or not the defend-
ants acted in good faith. Were the facts and circumstances
of which the defendants were informed such as to justify the
belief in the mind of a person of reasonable intelligence and
prudence that the plaintiff was mentally afflicted? If the
facts known to the defendants were received by them from
sources entitling them to credit, and were of such a nature
as to justify them as reasonably intelligent and prudent men
in taking the steps they did to institute the inquiry as to
plaintiff's mental condition, then they acted upon probable
cause and were justified in taking steps to have his mental
condition ascertained to determine whether or not he was
insane.
In searching the evidence to ascertain whether or not the
defendants had probable cause to institute the proceeding,
and whether or not they acted from an honest motive in the
matter, the fact that the court found that the evidence fails
to show that the defendant Alhers sustained adulterous rela-
tions with the plaintiff's wife has great weight. Treating
this as a verity in the case, as we must upon the record, it
lends substantial support to defendants' claim that the plaint-
iff displayed a state of mind indicating insanity. This fact
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582 SUPREME COURT OF WISCONSIN. [Nov.
Scheunert v. Albera, 140 Wis. 578.
of itself places plaintiff in the position of charging his wife
with adultery without foundation, and of persisting in the
charge in a manner and to an extent which might well lead
to suspicion of his mental soundness. The case, however,
does not rest here. The defendants were also informed of
plaintiffs singular and threatening conduct toward his wife
and Dr. Albers^ It appears that they submitted the facts and
circumstances within their knowledge to a physician, an at-
torney, and the county judge, and received their confirmatory
opinions that the plaintiff ought to be examined as to his
sanity. Furthermore, the physicians appointed to examine
the plaintiff as to his sanity reported to the effect that the
plaintiff displayed a mental condition which evinced extreme
nervousness which required treatment and might lead to in-
sanity. This presents an array of persuasive facts and cir-
cumstances which would justify a person of reasonable in-
telligence and prudence in instituting an inquiry into plaint-
iff's sanity. The evidence of the case is without a basis for
an inference that defendants acted without probable cause in
procuring an inquest of plaintiff's mental condition. It is
clearly insufficient to support the claim that the inquest was
instituted for the malicious purpose of preventing plaintiff
from testifying against Dr, Albers as to the alleged adultery.
All the facts and circumstances harmonize in showing that
the defendants acted on the belief that the plaintiff was men-
tally so afflicted as to require an examination as to his sanity,
and that they instituted the inquest to have it judicially de-
termined in good faith.
We are of the opinion that the court erred in refusing to
grant defendants' motion for direction of a verdict in their
favor, and in refusing to direct the jury to answer the tenth
question of the special VQrdict— whether the defendants had
probable cause to believe that plaintiff ought to be examined
as to his sanity — in the affirmative, and in not awarding the
defendants judgment in the case.
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12] AUGUST TERM, 1909. 68a
Joyce V. Russell, 140 Wis. 588.
By the Court. — Judgment reversed, and the cause re-
manded to the trial court to change the answer to the tenth
question in the special verdict from "No" to 'TTes," and on
the verdict as so corrected to award judgment in defendants'
favor and against the plaintiff for the costs of the action.
Estate of Fbeguson : Joyce, Appellant, vs. Kussell, Re-
spondent.
October 2S-'N9vem1>er It, 1909.
(1) Appeal: Review: Findings of fact. (2-5) Pension moneys: E3>
emption: Conversion into other property.
1. Findings of fact which are not against the clear preponderance
of the evidence are to he regarded as verities on appeal.
2. Under sec. 4747, R. S. of U. S., as construed hy the federal su-
preme court, pension money is only exempt from claims of a
pensioner's creditor while it is "due, or to hecome due, to any
pensioner."
3. By such construction the words of the statute, "shall inure
wholly to the benefit of such pensioner," relate to the words
"due. or to become due," and have no force after the public ob-
ligation has been discharged by delivery of the money to the
pensioner or his agent.
4. Whether Folschow v. Werner, 51 Wis. 85, holding to the contrary
of the federal construction, should be adhered to, this court
may properly decline to state, further than is necessary to facts
as presented, requiring a decision.
5. Notwithstanding Folschow v, Werner, pension money, under the
federal statute, is not exempt from claims of creditors of the
pensioner after the money has been paid to him and converted
Into other property.
[Syllabus by Marshall, J.]
Appeal from a judgment of the circuit court for Wauke^
sha county: Martin L. Lueck, Circuit Judge. Affirmed.
Proceedings, commenced in coimty court, to have certain
premises declared a homestead under the statute regarding
descent of real property, were removed by appeal from the
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684 SUPREME COURT OF WISCONSIN". [Nov.
Joyce V. Russell, 140 Wis. 583.
final order denying the petition to the circuit court for Wau-
kesha county, and were closed by judgment aflSrming such
order. The determination was based on these conclusions of
fact: Appellant, an adult, is the sole heir at law of Catherine
Ferguson, deceased. She resided in. Missouri when said Fer-
guson died. Respondent is a general creditor of the deceased.
The latter, when she died, was an inhabitant of Wisconsin.
She did not leave a husband or any heir except appellant.
There is no property available for payment of respondent's
claim except that in question. The deceased became owner
of the property about August, 1898. It consists of less than
one-half acre of land, is situated within the corporate limits
of Waukesha, and was not worth at the time Mrs. Ferguson
died to exceed $900. At the time of acquiring the real estate,
the deceased was about seventy-three years of age. She had,
for twenty to thirty years, been a widow and, customarily,
gone out to service for, and boarded with, numerous persons.
At the time of such acquirement, she was a house employee
in Pewaukee and so continued for over three years. In the
meantime said property was wholly occupied by a tenant.
After such period, she resided with her tenant on the prop-
erty, as an. ordinary boarder, for some over a year, and then
boarded in another but nearby place till she died. She never
resided upon the real estate, except as aforesaid, or at any
time expressed an intention to make the place her homestead.
For the appellant the cause was submitted upon the brief
of D. J. Hemlock.
For the respondent there was a brief by Clasen & Walsh,
and oral argument by E. D. Walsh.
Maeshali*, J. The facts found warrant the conclusion
that the premises in question never became the homestead of
Catherine Ferguson. The findings are sufficiently supported
by competent evidence to preclude their being condemned, in
any respect, as erroneous. Therefore, the judgment must be
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12] AUGUST TERM, 1909. 585
Joyce V. Russell, 140 Wis. 583.
aflSrmed, unless tho subject yet to be referred to is of control-
ling significancei.
The point is made that the court erred in not deciding that
tho property was exempt from creditor claims against the
estate of Catherine Ferguson, by reason of 'the same having
been purchased with pension money which, under sec. 4747,
K. S. of U. S. (U. S. Comp. Stats. 1901, p. 3279), was ex-
empt, to the extent indicated in the language of the statute,
as follows:
"No sum of money due, or to become due, to any pensioner
shall be liable to attachment, levy or seizure by or under any
legal or equitable process whatever, whether the same remain
with the pension oflSce, or any oflScer or agent thereof, or ia- in
course of transmission to the pensioner entitled thereto, but
shall inure wholly to the benefit of such pensioner."
These proceedings were instituted, solely, to settle the con-
troversy as to whether the property was subject to the law
respecting descent of homesteads. That appears to be the
sole subject of the decision in the circuit court For that
reason the question of whether the federal statute on the sub-
ject of the exemption of pension money could, in any event,
cut any figure in the case, might properly be passed without
decision. However, since such question will probably have
to be decided in the course of the settlement of ^Irs. Fergu-
son's estate, and has been argued on both sides, it is thought
best to decide the same.
Counsel for appellant relies on Folscliow v. Werner, 61
Wis. 85, 7 N. W. 911, where it was held, imder the federal
statute, that pension money after having been received by the
pensioner, so long as the same can be identified as a fund in
his hands for his use, is within the zone of exemption. The
case did not go so far as to hold that the exemption would con-
tinue as to property purchased with the pension money, as
in this case. Whether the decision could be justified on rea-
son or authority limited, even, as it is, by the facts of the
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586 SUPREME COURT OF WISCONSIN. [Nov.
Joyce y. Roseell, 140 Wis. 683.
case, is involved in very serious doubt as the following will
show:
The supreme court of Iowa is the only court, so far as we
can discover, which is in harmony with FoUchow v. Werner,
supra. It held to the contrary at first Webb v. Holt, 57
Iowa, 712, 11 N. W. 658; Triplett v. Graham, 58 Iowa, 135,
12 N. W. 143; BaugK v. Barrett, 69 Iowa, 495, 29 N. W.
425 ; Farmer & Sons v. Turner, 64 Iowa, 690, 21 N. W. 140 ;
Foster v. Byrne, 76 Iowa, 295, 35 N. W. 513, 41 N. W. 22.
The court was divided on the subject during all the time cov-
ered by the decisions referred to. After the last of such de-
cisions the personnel of the bench was changed, the two dis-
senting judges remaining and two of the majority being
succeeded by new men. In the changed situation the ques-
tion so many times decided, as indicated, was raised anew
(Crow V. Brown, 81 Iowa, 344, 46 N. W. 993), and the
previous cases were all overruled, the court holding that pen-
sion money received from the United States in the hands of
the pensioner and property owned by him purchased there-
with, as well, were exempt from the claims of creditors imder
the federal statute. The dissenting justices in their first dis-
senting opinion (57 Iowa, 712, 11 N. W. 658), relied for
authority on E chert v. McKee, 9 Bush, 355; Hay ward v.
Clwrh, 50 Vt 612; and Folschow v. Werner, 51 Wis. 85,
7 N. W. 911. In their last dissenting opinion (76 Iowa, 295,
35 N. W. 513, 41 N. W. 22), which was referred to as ex-
pressing the judgment of the majority in Crow v. Brown, the
sole authority cited was Folschow v. Werner. The Iowa court
firmly adhered to its change of position (Dean v. ClarJc, 81
Iowa, 753, 46 N. W. 995 ; Smith <& Co. v. Hill, 83 Iowa, 684,
49 N. W. 1043 ; Marquardt & Sons v. Mason, 87 Iowa, 136,
54 N. W. 72 ; Cook v. Allee, 119 Iowa, 226, 93 N. W. 93),
confessing, however, that it was against the great weight of
authority (Smyth v. Hall, 126 Iowa, 627, 102 N. W. 520).
The court was relieved from a somewhat embarrassing situa-
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12] AUGUST TERM, 1909. 58^,
Joyce V. Russell, 140 Wis. 583.
tion by a legislative enactment, following the judicial con-
struction of the federal statute which had been adopted, thus
effectually supplementing such statute.
It is interesting to note that the decision of this court, for
autliority, referred to Echert v. McKee, relied on by the Iowa
court. That case was overruled in 1875, six years before
Folschow v. Werner was decided. See reference to Wayne v.
Chester in Bobion v. Walker, 82 Ky. 60. The opinion in
Wayne v. Chester does not appear to have been published.
The first published opinion of the Kentucky court, overruling.
Echert v. McKee, is in Rohion v. Walker, in which Webb v..
Holt, 67 Iowa, 712, 11 N. W. 658, subsequently overruled in
that state, as we have seen, was followed. The Kentucky
court has adhered to its position, taken in 1875 as indicated,,
in many decisions reaching down to date. Johnson v. Elkins,
90 Ky. 163, 13 S. W. 448; CuHis v. Helton, 109 Ky. 493,*
59 S. W. 745 ; Sanders v. Hemdon, 122 Ky. 760, 93 S. W. 14.
The Vermont case relied upon, with the early Kentucky
case, overruled as we have seen, and the case in this court
based on such overruled decision, was decided in 1878, and
long before the federal court had construed the federal stat-
ute. The Vermont court did not refer to any authority. The
decision was not thereafter followed. All said in it, regard-
ing the subject under discussion, was declared to be obiter in
Martin v. Hurlburt, 60 Vt. 364, 14 Atl. 649, and, so far as
it could be regarded, in any sense, as a construction of the
federal statute, was overruled. It was likewise overruled in
Bullard v. Goodno, 73 Vt. 88, 50 Atl. 544.
The following additional cases are in harmony with the
later Kentucky and Vermont cases: Rozelle v. Rhodes, 116^
Pa. St. 129, 134, 9 Atl. 160; Friend v. Garcelon, 77 Me. 25,
26; Crane v. Linneus, 77 Me. 59, 61; Cranz v. White, 27
Kan. 319 ; State v. FaiHon S. F. & B. Asso. 44 N. J. Law,
376 ; Faurote v. Carr, 108 Ind. 126, 9 N. E. 350; Spelman v,
Aldrich, 126 Mass. 113, 117 ;Hissem v. Johmon, 27 W. Va.
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688 SUPREME COUET OF WISCONSIN. [Xov.
Jayce ▼. Bassell, 140 Wis. 583.
644, 652 ; Stockwell v. Nat. Bank, 36 Hun, 583 ; Bull v. Case,
41 App. Div. 391, 58 N. Y. Supp. 774:; Hathom v. Robinson,
96 Me. 33, 51 AtL 236; Martin v. Martin, 187 IlL 2.00, 68
X. E. 230; Brown v. Balfour, 46 Minn. 68, 48 N. W. 604;
and Recor v. Comm. & Sav. Bank, 142 Mich. 479, 106 K
W. 82.
In many of the cases cited, Folschow v. Werner is referred
to with disfavor. In no one of them, so far as we can dis-
cover, did the court have the benefit of a construction by the
federal supreme court. Had such a construction existed at
the time of FolscKow v. Werner or the decisions which fol-
lowed it in Iowa, and been called to the attention of the court,
doubtless, such construction would have been followed. The
subject seems to have been first presented to the federal su-
preme court in Mcintosh v. Aubrey, 186 TJ. S. 122, 22 Sup.
Ct. 661, where Crow v. Brown, 81 Iowa, 344, 46 K W. 993,
and Yates Co. Nat. Baiik v. Carpenter, 119 N. Y. 650, 23 N.
E. 1108, a similar case (based however on a statute — People
ezrel. Jones v. Feilner, 167 N. Y. 363, 61 N. E. 1002), were
condemned. Folschow v. Werner does not seem to have been
cited to the attention of the court, else, doubtless, it would
have met a similar fate. The decision of the federal court
is in this plain language:
"The section of itself seems to present no difficulty. • . .
We think the purpose of Congress is clearly expressed. It
is not that pension money shall be exempt from attachment
in all of its situations and transmutations. It is only to be
exempt in one situation, to wit: when 'due or to become due.'
From that situation the pension money,'', having been paid to
the pensioner and converted into other property, "... had
departed."
It follows from the foregoing that if Folschow v. Werner
should be followed at all it should not be extended to cover
the facts of this case, which are substantially identical with
Mcintosh V. Aubrey, supra.
By the Court. — Judgment affirmed.
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12] AUGUST TERM, 1909. 689
McMichael v. Peterman, 140 Wis. 689.
Estate of Bacon: McMiohael and another, Appellantfl,
vs. PsTEBMAN and others, Eespondents.
Oct&ber 2&'-Novemher iJ, 1909*
Win$: Construction: "Unmarried'* persons: Public polioi^: Tested
future interests.
1. A will bequeathed money In trust for the support of an Insane
son of testatrix, and provided that after his death the residue
thereof be divided among her nieces "who may be unmarried at
that date." At the death of the son six nieces of the testatrix
were living, four of whom had never been married and two had
been married since before the date of the will. Held that, ap-
plied to such situation, there could be no ambiguity In the word
••unmarried."
2. Whether such bequest, by being in restraint of marriage and by
offering inducement to the married niecee to become unmarried
by divorce or otherwise, is so contrary to public policy as to
be invalid, not determined. The married nieces not being shown
to be next of kin or beneficially interested in the estate are not
prejudiced by a decision of the circuit court holding the bequ^t
valid.
8. It cannot be considered that such bequest gave a vested estate
from testatrix's death to all the nieces (including those then
married) as a class, with simply a condition subsequent divest-
ing such Interest In the event of marriage, and that such con-
dition Is void as against public policy. Under the terms of the
will the married nieces were never members of any such class.
Appeal from a judgment of the circuit court for Waukesha
county: Mabtin L. Lueck, Circuit Judge. Affirmed.
Clara M. Bacon made a will whereby, inter alia, she be-
queathed to trustees certain sums of money to be invested by
them and applied, both income and necessary portions of cap-
ital, to the support and comfort of testatrix^s insane son,
H. Noble Campbell, during his natural life. She then pro-
vided by the twelfth paragraph that, after the death of said
son, "I desire that all the rest and residue in the hands of the
trustees ... be divided, share and share alike, to my nieces
who may be unmarried at that date." The will was made .
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£90 SUPEEME COURT OF WISCONSIN. [Nov.
McMichael v. Peterman, 140 Wis. 689.
and testatrix died in July, 1906, and the son died May 29,
1908. The appellants, at the date of the will and at all sub-
sequent times, were nieces of testatrix and married. The four
respondents, other than Estberg, the trustee, are nieces of tes-
tatrix, and up to the present time have not married. The
executors of the will presented their final account, which was
allowed, and a final order distributing the estate, and inc -
dentally construing the wiU, was entered in the county court
prior to the death of the son. Appeal from that order was
taken to the circuit court, there tried, after the death of the
aon, and an order entered construing the will and awarding
the residue of said trust fund to the four unmarried nieces
named as respondents. From that judgment this appeal is
brought by the two married nieces.
V. H. Tichenor, for the appellants.
For the respondent Mabel Petennan there was a brief by
Frame <& BlacJcstone; for the respondents Margaret Noble,
Esther Noble, and Dorothy Noble there was a brief by
T. W. Parkinson, guardian ad litem; and the cause was ar-
gued orally by H. J. Frame and M. A. Jacobson.
Dodge, J. It is diflScult to realize that there is any am-
biguity in the portion of this will under discussion, to arouse
a duty of construction. The gift is, in plain language^ to
such of testatrix^s nieces as at the death of the son shall be
unmarried. At that date the four respondents were nieces
and were immarried, and always had been, while the two ap-
pellants, albeit they were nieces, were not unmarried and
had not been in a state of celibacy at any time since prior to
the making of the will. Appellants contend that ambiguity
lurks in the word "unmarried," because either of the nieces
who were married at the date of will or of the testatrix's
death might, before the death of the first beneficiary, termi-
nate that marital status either by the death of her husband or
by divorce, and, in that event, would have become uc married,
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12] AUGUST TERM, 1909. 691
McMichael v. Peterman, 140 Wis. 589.
a view that receives support from some decided cases, among
others Moyer v. Koontz, 103 Wis. 22, 79 N. W. 50. Any
such uncertainty in the meaning of "immarried," however,
can result in no ambiguity in applying the words of the will
to the instant situation, for no once married niece had be-
come unmarried within any possible meaning. It is too
clear for debate that respondents are the persons designed by
the will to receive this bequest and that appellants are not.
The next contention is that the confinement of this bequest
to such nieces as should be unmarried at a date indefinitely
subsequent to the testatrix^s death was contrary to public
policy in that it made it for the interest of each niece unmar-
ried at that time to refrain from marriage through that in-
definite period, and also that it oflFered a temptation to each
niece who at that time was married to return to a state of
celibacy by divorce or other elimination of her spouse, albeit
such temptation has not proved effective in the present in-
stance. Without at present discussing the question whether
such method of selection of her beneficiaries would be so in
contravention of public policy as to have invalidating effect,
it suffices here to remark that these appellants have no inter-
ests which are prejudiced by the decision of the circuit court
holding the bequest valid. They are not shown to have been
the next of kin of testatrix or in any wise beneficially inter-
ested in her estate. They take nothing except by virtue of
this bequest^ and therefore lose nothing by refusal to hold it
void.
Appellants further urge, however, that the bequest may be
saved by considering that it gives a vested estate from the
testatrix's death to all her nieces as a class, and that the effect
of thd restriction to those who may be unmarried at a subse-
quent date amounts merely to a condition subsequent serving,
if valid, to divest such interest upon the event of marriage
and, therefore, only the condition antagonizes public policy
and is void, and not the bequest We think, however, that
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592 SUPKEME COUKT OF WISCONSIN. [Nov.
McMichael il Peterman, 140 Wis. 589.
the premise of this argument is erroneous. Future interests
are said to be vested when there is a person or a class of per-
sons at all times existent to whom the future estate would
immediately pass if the precedent estate terminated at any
moment, although that class may change from time to time,
individual members thereof dropping out, as by death, and
other members coming in, as by birth. Scott v. West, 63
Wis. 529, 24 N. W. 161, 25 N. W. 18; Webster v. Morris.
66 Wis. 366, 384, 28 N. W. 353; In re Moran's WiU, 118
Wis. 177, 189, 96 N. W. 367; Williams v. Williams, 135
Wis. 60, 65, 115 N. W. 342. Applying that test to the pres-
ent situation it is obvious that the appellants were never
members of any such class, for, clearly, they could not at any
time since the death of the testatrix have received her bounty
upon the death of her son according to the terms of the will.
If this future estate was vested in a class, that class was
made up at all times of the respondents, the unmarried nieces,
although it might be enlarged by the birth of other nieces, or
perhaps by the termination of the marital status of either of
the two appellants, and any one of respondents might drop
out in event of marriage or death. Hence it is still apparent
that appellants lose nothing by the order appealed from and
are not prejudiced thereby.
For these reasons, without considering others, the judg-
ment cannot be reversed.
By the Court. — Judgment aflSrmed.
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12] AUGUST TERM, 1909. 593
Boberts v. Waukesha County, 140 Wis. 593.
EoBEitTS and others, Executors, Respondents, vs. Wauke-
sha County and others. Appellants.
October 26— November IB, 1909,
Taxation: Reaaseaament after refund on void tax sale: Misdescrip-
tion of land.
The power of the county board under sec 1186, Stats. (1898), to
direct a reassessment of the taxes Justly chargeable upon lands
when the original assessments were invalid because of irreg-
ularities in the tax proceedings, embraces all cases in which,
under sec 1184, by reason of the invalidity of the tax sales
or certificates, the county is liable to refund the money paid
to it, including a case where the land was mlsdescribed in the
original assessment and the tax certificate, if the description
was sufficient to enable the board to ascertain what land was
actually attempted to be assessed.
Appeal from a judgment of the circuit court for Wauke-
sha county: Maetin L. Lueck, Circuit Judge. Reversed.
The original plaintiff died after bringing the action and it
was continued in the name of the present plaintiffa June
17, 1892, the original plaintiff in this action became the
owner of certain real estate situated in the S. \ of section 3
and in the N. W. J of section 10, town 8, range 20 E., in the
village of Menomonee Falls, Waukesha county, Wisconsin.
The deed conveying the property is recorded in volume 81 of
Deeds, pages 561-554 inclusive, in the office of the raster
of deeds for Waukesha county, Wisconsin. In the assess-
ment roll and the tax roll for the taxes of 1895 the lands are
described as follows: "Owner, R W. Roberts, SW pt SE i
SW \ and pt NW J as per description in deed, Vol. 81,
page 551, sec 3-10, town 8, range 20.'^ Instead of "as per
description in deed. Vol. 81, page 551," the assessor used
"as described in deed" in 1896, and "as per description in
deed" in 1897. In the assessments of 1898, 1899, 1900,
1901, and 1902 no words referring to the deed were used in
the description. In 1899 and thereafter "SW J" was also
Vol. 140—38
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594 SUPKEME COUKT OF WISCONSIN. [Nov.
Roberts v. Waukesha County, 140 Wis. 693.
omitted from the description as previously given, and in
1900 and thereafter instead of "NW i" the assessor used
*^SptNWi"
The plaintiff paid no taxes upon his property for any of
the years enumerated above. At the tax sales for the sale
of lands for unpaid taxes for the various years enumerated,
except the year 1902, tax certificates were issued according
to the descriptions in the assessment and tax rolls. In 1902
the holder of the tax certificates issued in 1896, 1897, and
1898 on the sales for the impaid taxes for 1895, 1896, and
1897, having discovered the misdescription, applied to the
coimty board for a refund of the money paid for the tax cer-
tificates. The county board on December 2, 1903, ordered
the refimd, the cancellation of the tax certificates, and that
the coimty clerk in the next apportionment of county taxes
should include the sums refunded, with the interest allowed
under the statutes, as a special tax to be collected from the
land which should have paid the original tax. The mis-
description in the assessment and tax rolls for the taxes of
1902 was discovered too late for the correction to be made
in the assessment for that year, but the lands were withheld
from sale at the tax sale in 1903 on this account. The as-
sessment for 1903 included the taxes regularly assessed for
that year, a reassessment of the taxes for 1902, and the taxes
for the years 1895, 1896, and 1897 with the statutory inter-
est. These taxes were not paid, and at the sale in 1904 the
lands were sold to the county for the taxes and a tax certifi-
cate was issued to the county. On December 11, 1905, the
county board ordered a refund of the taxes to the holders of
the respective tax certificates of 1899, 1900, 1901, and 1902,
and that the taxes so refunded, together with the statutory
'interest, should be levied as a special tax with the 1905 taxes
upon the property of the plaintiff. The tax so levied was
not paid, and at the tax sale in the succeeding year the lands
were sold to the county for the taxes and a tax certificate is-
sued to the county.
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12] AUGUST TERM, 1909. 595
Roberta v. Waukesha County, 140 Wis. 593.
Plaintiff brought this action to restrain the issuance of tax
deeds based on the tax certificates so held by the county.
The trial court held that the orders of the county board or-
dering the reassessment of the taxes which were invalid for
misdescription were invalid and void, and ordered the can-
cellation of the tax certificates. The court also prohibited
the issuance of tax deeds based on the tax certificates on con-
dition that the plaintiff pay the taxes levied for 1903 and
1905. This is an appeal from the judgment.
For the appellants there was a brief by Milo MucTcleston,
district attorney, and V. H. Tichenor, of counsel, and oral
argument by Mr. Tichenor.
For the respondents the cause was submitted on the brief
of Ooodrich & Goodrich.
SiEBECKEE, J. The trial court adjudged that the tax cer-
tificates issued on the sale of the plaintiff's lands under the
tax sales for the unpaid taxes which the county board had
directed reassessed under sec. 1186, Stats. (1898), should
be canceled and that the county should be restrained from
issuing tax deeds thereon. This decision was made upon
the ground that the county board had no power to assess the
amoimt of tax justly due and chargeable on the plaintiff's
lands included in the reassessment, because such attempted
reassessment was upon lands not embraced in the original
assessment on which the county board had refunded the
money paid to it on the sale of the lands for nonpayment of
taxes, the proceedings being deemed invalid because of a de-
fective description of the lands sought to be assessed. From
the foregoing statement it appears that the lands assessed to
the plaintiff in the original assessment and described in the
tax certificates on the tax sales were so imperfectly described
as to render the tax certificates issued on the tax sales for
nonpayment of taxes invalid. Upon discovery of this condi-
tion it appears that the county board ordered and directed
'''that the money paid for such certificates on the sale and all
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590 SUPREME COURT OF WISCONSIN. [Nov.
Roberts v. Waukesha County, 140 Wis. 593.
subsequent charges thereon" should be refunded with inter-
est to the owner of the certificates upon delivery of the cer-
tificates for cancellation. These amounts were so refunded
by the county.
It is conceded by both parties that the sole controversy
on this appeal turns on the question whether or not the county
board under sec. 1186, Stats. (1898), is given the power to
make a reassessment under a correct description of the
amoimts of the taxes justly chargeable upon plaintiflf's lands.
There is no question but that the plaintiflPs property is a
proper subject for taxation within the taxing district of the
original assessment and levy of the tax. It appears that the
assessor intended to assess the lands to the plaintiff, and that
an attempt was made to levy the amounts specified against
the lands of the plaintiff by naming him as the owner of part
of the lands in the two sections, but that the description of
his real estate in the tax roll and the proceedings of the tax
sale was an erroneous description of the lands plaintiff owned
in government sections Nos. 3 and 10, lying in the village of
Menomonee Falls. It also appears that the county board con-
sidered that the amount of the tax they so levied in their pro-
ceedings of reassessment was the correct and proper amount
of the taxes justly chargeable on the plaintiff's lands em-
braced in the resolutions. The plaintiff's real estate consists
of a very irregularly shaped piece of land situated in the vil-
lage of Menomonee Falls in sections 3 and 10. It is not
questioned but that the tax certificates issued on the sales for
the nonpayment of the taxes prior to the reassessment were
invalid because of the erroneous descriptions of the land on
which the taxes were attempted to be levied. The respond-
ents rest their right to restrain the county from proceeding
to issue tax deeds on the tax certificates on the ground that
the tax proceedings prior to the reassessment under the reso-
lutions of the county board levied no tax upon their land be-
cause it is so defectively described as to render the tax sale
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12] AUGUST TERM, 1909. 597
Roberta v. Waukesha Ck)unty, 140 Wis. 593.
void, and it was on this ,account that the county board was
compelled, under sec. 1184, Stats. (1898), to refund the
money received on such sales with charges and interest. The
question is : Can the county board, under the power and du-
ties conferred by sec. 1186, Stats. "(1898), direct that a tax
be levied for the amoimt justly chargeable as a tax on plaint-
iffs real estate for the years embraced in the void assessment ?
It is averred that the county board has no such power in this
instance because the county board can only direct an assess-
ment of a tax, under this section of the statutes, when the
lands "described in such certificate or deed were justly tax-
able for such tax or a portion thereof." The argument is
that, since the lands described in the certificates in question
do not describe plaintiffs lands, no assessment could be di-
rected thereon. This contention is upon the ground that the
coimty board is restricted in directing such an assessment to
lands correctly described in the tax certificate or deed, and
that errors in description cannot be corrected in such pro-
ceedings by the county board.
The powers conferred by the provisions of sec. 1186, Stats.
(1898), must be considered in connection with the provisions
of sec. 1184, Stats. (1898). These two sections of the stat-
utes should, if reasonable, be so interpreted as to operate har-
moniously. It is obvious that the legislature intended that
the power of the coimty board under sec. 1186, Stats. (1898),
to direct a reassessment of taxes upon lands in cases where
the original assessments are invalid on account of irregularir
ties in the tax proceedings, was to embrace all cases under
sec. 1184, Stats. (1898), whereby the county is liable to re-
fund the money paid it on account of the invalidity of a tax
certificate or tax deed. The liability of the county to refund
taxes for errors in description which make a tax void is not
questioned, and we think properly not. Since the power of
the county board to direct reassessments is to provide a tax
in cases where the original levy fails for errors in the tax
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598 SUPKEME COURT OF WISCONSIN. [Nov.
Koberts v. Waakesha County, 140 Wis. 693.
proceedings, we perceive no reason why it does not embrace
a case where a tax is void on account of a misdescription, and
why it does not vest authority in the county board to correct
such error.
It is argued that the descriptions embraced in the original
assessments and the tax certificates are so defective as to
make it impossible for the county board to determine that the
plaintiff's lands were taxable for any amoimt. Though the
descriptions in the original assessments and the tax certifi-
cates were so defective as to render the certificates invalid,
yet it sufiiciently appeared that the taxes were attempted to
be levied upon lands owned by the plaintiff, by reference to
his deed in some instances, and by reference to the govern-
ment sections and parts thereof in all instances. We find
that the original tax proceedings were sufficient to authorize
the county board to ascertain what lands were actually at-
tempted to be assessed and to direct the reassessment.
We cannot sustain the decision of the trial court holding
that the county board was without power and jurisdiction in
directing that the plaintiff's lands were l^ally taxable for
the sums the board found to be just and proper taxes. The
reassessments pursuant to the resolutions of the county board,
and the issuance of the tax certificates on the sale of the
plaintiff's lands for nonpayment of the taxes included in such
reassessments, must be held to have been legally authorized.
The tax certificates should not have been canceled, nor should
the county and its clerk be restrained from issuing tax deeds
on these tax certificates.
By the Court. — Judgment reversed, and the cause re-
manded to the lower court to award judgment dismissing the
complaint.
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12] AUGUST TERM, 1909. 699
Smith V. Smith, 140 Wis. 699.
Smith, Appellant, vs. Smith, Respondent
October 2e—yov€m1>er 12, 1909.
Indians: Heirship: Jurisdiction of state courts: Paternity of iUeaiti-
mates: Evidence: Declarations of parents: Statutes: Construe^
tion.
1. In proceedings for administration of the estate of aa Indian
allottee of. lands, the title to which was held In trust hy the
federal government, there helng other property warranting the
administration, the parties by stipnlation submitted to the
county court the question whether a certain person was the
son and sole heir at law of the deceased. Held, sufficient to
give the court Jurisdiction.
2. The order or Judgment of the court in such a case does not trans-
fer the title or disturb the possession of the allotted lands;
and the United States, as trustee, may recognize or refuse to
recognize it as evidence, conclusive or prima facie, of heirship.
3. Under a federal statute (26 U. S. Stats, at Large, 794, ch. 383)
making Illegitimate children lawful heirs of their Indian
father, paternity is to be established by a preponderance of evi-
dence, and need not be established beyond reasonable doubt nor
by evidence clear and convincing beyond reasonable controversy.
4. In such a case declarations of the 'deceased mother and of the
alleged deceased father respecting the paternity of an illegiti-
mate are competent, and when they are the best evidence the
nature of the case will admit of, and are not overcome by other
more convincing evidence, they are sufficient
5. The construction given to the federal statute (26 U. S. Stats, at
Large. 794, ch. 383) In In re Heirs of House, 132 Wia. 212, is
adhered to.
Appeal from a judgment of the circuit court for Brown
county : S. D. Hastings, Circuit Judge. Affirmed.
For the appellant there was a brief by Cody, Strehlow &
Joseph, and oral argument by 8. H. Cody and L. D. Joseph.
Among other authorities they cited Ott v. Boring, 139 Wis.
403, 121 N. W. 126; Busse v. Stole, 129 Wis. 171, 108
N. W. 64; In re Heirs of House, 132 Wis. 212, 112 N. W.
27; sec. 2274, Stats. (1898); Schiefelbein v. Fidelity & C.
Co. 139 Wis. 612, 120 N. W. 398; Sufferling v. Heyl & Pal-
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600 SUPREME COURT OF WISCONSIN. [Nov.
Smith V. Smith, 140 Wis. 599.
ierscm, 139 Wis. 510, 121 N. W. 251 ; Merm v. State, 132
Wis. 61, 112 N. W. 38 ; Baker v. State, 47 Wis. Ill, 2 N. W.
110; Goyke v. State (dis. op.) 136 Wis. 557, 117 N. W.
1027, 1126; Hofer v. State, 130 Wis. 576, 110 N. W. 391;
Orotjan v. Bice, 124 Wis. 253, 102 N. W. 551; Benedict v.
Homer, 13 Wis. 256; Bichmond v. State, 19 Wis. 307; Mil
ler V. C. & N. W. B. Co. 133 Wis. 183, 113 N. W. 384; Kel^
ley V. Crawford, 112 Wis. 368, 88 N. W. 296.
M. E. Davis, for the respondent, cited Jones v. Boherts,
84 Wis. 465, 54 N. W. 917 ; Gillett v. Treganza, 13 Wis.
472; Stale ex rel. Beals v. Probate Court, 25 Minn. 22;
Gary, Probate Law (3d ed.) §§ 630, 633.
Timlin, J. The county court of Outagamie county
granted letters of administration upon the estate of Ezekiel
Smith, an Indian, to Hattie C. Smith, his widow, and there-
after it was stipulated, prior to the time for final distribution,
that the question whether Taylor Smith was the son and sole
heir at law of decedent should be tried before said county
court at a time and place 'stated. We are informed by coim-
sel'that the department of the United States government hav-
ing charge of Indian affairs until recently approved, recog-
nized, and acted upon this mode of ascertaining Indian heirs
for the purpose of identifying the person or persons for whom
the United States held the title in trust. The county court
heard the evidence and determined that Taylor Smith was
the son of decedent, but that Haltie C. Smith was his widow
and sole heir. An appeal was taken to the circuit court from
this order and the place of trial changed to Brown counjty,
where, after a trial of the question, the circuit court found
that Ezekiel Smith, deceased, was an Oneida Indian, an al-
lottee of lands in the Oneida Indian reservation in this state,
and held a trust patent from the United States for two quar-
ter-quarter sections of such land, and that Taylor Smith was
the illegitimate son of said Ezekiel and one Dolly Hill, de-
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12] AUGUST TERM, 1909. COl
Smith V. Smith, 140 Wis. 599.
■ceased, but that the said Ezekiel and Dolly never cohabited as
husband and wife according to the custom and manner of In-
-dian life, and Ezekiel never admitted in writing that Taylor
was his son.
From these facts the circuit court concluded that Taylor
Smith was the heir at law of Ezekiel Smith, deceased, and
as such was entitled to the entire interest of said Ezekiel
in and to the lands in question, subject to the dower and
homestead rights of Hattie C. Smith, widow of decedent
An order was then made in the form of judgment remitting
the cause to the county court of Outagamie coimty with di-
rections to enter the proper order assigning to Taylor Smith
the entire interest of Ezekiel Smith in and to the lands in
question, subject to the dower and homestead rights of Hattie
C. Smith. Upon appeal to this court from the order last
mentioned Hattie C. Smith assigns error: (1) That the
court erred in exercising jurisdiction; (2) that the court
erred in finding Taylor Smith was the son of Ezekiel; (3) in
admitting evidence of declarations of Dolly Hill; (4) in lim-
iting cros9-examination ; (5) in admitting parol declarations
of Ezekiel Smith as to his paternity of Taylor Smith; (6) in
the conclusion of law that Taylor Smith is the heir of Ezekiel
Smith.
No objection to the jurisdiction of the circuit court appears
to have been made in that court, but appellant cites in this
court the case of McKay v. Kalyton, 204 U. S. 458, 27 Sup.
Ct. 346, in support of the first assignment of error. In that
case, however, the action was one to recover possession of or
title to the allotted land, or both such possession and title.
This is not true of the instant case. Here the parties have
by stipulation and mutual consent submitted to the state court
the question of whether a certain person was the heir at law
of Ezekiel Smith. The order or judgment does not transfer
the title to or disturb the possession of the land in question.
Jones V. RobeHs, 84 Wis. 465, 471, 54 N. W. 917; QiUett v.
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602 SUPKEME COURT OF WISCONSIN. [Nov.
Smith V. Smith, 140 Wis. 599.
Treganza, 13 Wis. 472; Gary, Prob. Law (3d ed.) §§ 630,.
633. And the United States as trustee may recognize, or re-
fuse to recognize, this order as evidence conclusive or prima
facie. Act Cong. Feb. 8, 1887, ch. 119, 24 U. S. Stats, at
Large, 388, as amended by Act Cong. Feb. 28, 1891, ch. 383,.
26 U. S. Stats, at Large, 794, 3 Fed. Stats. Ann. pp. 493,
494, 496, 501, 502. There was other property of Ezekiel
Smith besides the trust lands which authorized the adminis-
tration.
We perceive no valid ground for saying that the state court
had no jurisdiction to make the order in question. Probably
if Taylor Smith seeks to recover the possession or enjoyment
of the land in question, or of its proceeds, against an adver-
sary claimant, notwithstanding this determination, he must
proceed in the federal court. But that question is not di-
rectly involved in the present appeal. It is sufficient that the
state court, in an administration proceeding properly brought
and upon stipulation of the parties, determined the status
of Taylor Smith as heir of Ezekiel Smith, and that the gov-
ernment of the United States may through its departments
primarily, or its federal courts finally, determine that in tho
discharge of its trust it will or will not recognize this decision
as evidence.
We consider the finding that Taylor Smith is the son of
Ezekiel Smith is supported by considerable evidence and not
against the clear preponderance of the evidence. The ques^
tion was one of pedigree or heirship and not of legitimacy.
The statute made illegitimate children lawful heirs, apd the
real inquiry waa directed to the fact whether or not Taylor
Smith was a son of Ezekiel Smith. The result of the investi-
gation was not to put a bar sinister upon his shield, but rather
to find him to be one worthy to inherit Therefore pater-
nity is to be proven by a preponderance of evidence, and not
by evidence establishing it beyond a reasonable doubt nor by
evidence clear and convincing beyond reasonable controversy.
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12] AUGUST TERM, 1909. 603^^
Smith T. Smith, 140 Wis. 599.
It is true that evidence of declarations by the deceased mother
of the illegitimate respecting his paternity and like declara-
tions of the alleged father of the illegitimate are not very sat-
isfactory evidence, but they arc the best evidence the nature
of the case will admit of, and competent upon the question
of pedigree. When they are not met and overcome by other
more powerful, credible, and convincing evidence they must
bo held sufficient to form a basis for belief or mental convic-
tion. 1 Elliott, Ev. ch. 16, §§ 360-382.
Appellant assails as incorrect the construction given to the
statute (3 Fed. Stats. Ann. sec 5, p. 501) in In' re Heirs of
House, 132 Wis. 212, 112 N. W. 27, and asks us to overrule
that case. He suggests that the construction given to the fed-
eral statute might result in enabling illegitimates of the sec-
ond class in some cases to inherit from both the father and
the mother, while the more worthy illegitimates of the first
class would inherit from the father only. This consideration,,
while of weight, is not sufficient to overcome the otherwise
dear meaning of the statute. No other construction which
we consider reasonable or satisfactory is suggested, and we^
therefore adhere to that already placed upon the statute. W^e
may not agree with the wisdom or policy of a statute which,
amongst a simple or primitive people, makes such bastardy
a privilege or advantage, and which stirs the recollection or
the imagination of old people concerning casual errors or ir-
regularities long since forgotten or which never happened, by
offering the prize of an inheritance to such illegitimate chil-
dren. But all this is more properly addressed to the federal
legislature and cannot be taken to divert or distort the plain
meaning and sense of this statute. We perceive no error in
the rulings admitting or excluding evidence, and affirm the
judgment.
By the Court. — The judgment of the circuit court is af-
firmed
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604 SUPREME COURT OF WISCONSEN". [Nov.
Le Blond v. Peshtigo, 140 Wis. 604.
Lb Blond, Appellant, vs. Town of Peshtigo and otlierB,
Respondents.
October te—Noventher 12, 1909
Equity: Injunction: Grounds of relief: Irreparable injury: Multi-
plicity of actions: Adequate remedy at Uw: Pleading construed:
Ejectment: Easements.
1. Plaintiff alleged that defendants, a town and Its sapervlaors,
wrongfully entered upon a strip of plaintiff's land and con-
structed a highway and drain thereon, to her damage; that
they have continued unlawfully to use the land thus appro-
priated, and/ threaten that if plaintiff attempts to fence up said
highway and drain they will tear down the fences and continue
to use the same; that they have permanently deprived plaintiff
of the use and enjoyment of that portion of the premises ap-
propriated by them; that plaintiff has suffered irreparable in-
Jury and will be put to the necessity of bringing a multiplicity
of suits to protect her rights. The relief asked was that de-
fendants be enjoined from taking possession or attempting to
take possession of the strip of land in question and from inter-
fering with plaintiff's enjosnnent, use, and occupation thereof,
and for damages. Held, that the facts stated did not entitle
plaintiff to the interference of equity to prevent either irrep-
arable injury or a multiplicity of actions at law.
2. The averment that plaintiff has been permanently deprived of
the use and enjoyment of the strip of land in question is con-
strued as equivalent to a statement that she has been deprived
of the possession of said strip; and It appearing that what she
seeks to recover is the possession of the land, not of a mere ease-
ment over it, she has an adequate remedy at law in an action
of ejectment.
8. Where the owner in fee has been wrongfully deprived of the pos-
session of land he may maintain ejectment to recover that pos-
session, and it is immaterial whether such deprivation has been
caused by the exercise of an easement which wrongfully ex-
cluded him from possession, or otherwise.
4. Where land has been wrongrfully taken for a highway, and the
only right which the owner may exercise over it is the right
to use it as a highway in common with all others, he has been
deprived of his possession.
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12] AUGUST TERM, 1909. 605
Le Blond v. Peshtigo, 140 Wis. 604.
Appeal from an order of the circuit court for Marinette
county: S. D. Hastings, Circuit Judge. Afprmed.
The appeal is from an order sustaining a demurrer to the
complaint.
The complaint, in substance, charges that the town of Pesh-
tigo is one of the duly organized towns of Marinette county,
and that the other defendants are, and at all the times men-
tioned in the complaint were, the duly elected, qualified, and
acting supervisors of said town; that the defendants during
the month of August, 1905, entered upon certain lands owned
by and in the possession of plaintiff and tore down fences,
cut and removed valuable timber, and constructed a highway
and drain thereon at a cost of $500, which was paid by the
defendant town; that said defendants never acquired any
right by consent of the plaintiff or otherwise to appropriate
any portion of her land ; and that she has been damaged in
the sum of $900 by reason of the unlawful act complained
of. The complaint further sets forth that ever since August
12, 1905, defendants have continued to unlawfully use the
premises appropriated for a drain and public highway, and
that certain of the defendants threaten and assert that if
plaintiff attempts to fence up the pretended drain and high-
way they wiU tear down such fences and obstructions and con-
tinue to use the same, and that said defendants have ever
since the 12th day of August, 1905, permanently deprived
the plaintiff of the use and enjoyment of that portion of the
premises appropriated by the defendants, and that plaintiff
fears the defendants will carry out the threats aforesaid, and
will harass, vex, and annoy the plaintiff, and that plaintiff
has been put to irreparable injury, and will be put to the ne-
cessity of bringing a multiplicity of actions to protect her
rights. By way of relief plaintiff asks that the defendants,
their agents and servants, be enjoined and restrained from
taking possession or attempting to take possession of the strip
of land in question, and also from in any manner interfering
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^06 SUPREME COUET OF WISCONSIN. [Nov.
Le Blond v. Peshtigo, 140 Wis. 604.
i^ith the enjoyment, use, and occupation thereof by the plaint-
iff, and that plaintiff recover $900 damages done and suf-
fered by reason of the unlawful acts complained of.
One of the grounds of demurrer was that the complaint did
not state facts sufficient to constitute a cause of action. This
is the only ground relied on to sustain the order appealed
from.
For the appellant there were briefs by L. M. Nelson, at-
tomey, and P. A. Martincau, of counsel, and oral argument
by Mr, Martineau.
For the respondents there was a brief by W. B. Quitdan,
and oral argument by H. T. Scudder.
Babnes, J. By her complaint the plaintiff seeks to re-
cover possession of her property and damages for the wrongs
she has sustained. If, under the facts stated, she is not en-
titled to resort to a court of equity to secure this relief, then
the demurrer was properly sustained. As a general proposi-
tion equity will not interfere to prevent a mere threatened
trespass unless such trespass will work irreparable injury.
Where, by reason of the continuous character of the invasion,
numerous actions at law would be necessary, equity will in-
terfere to prevent a multiplicity of suits because the legal rem-
edy is inadequate. Miller v. Hoeschler, 121 Wis. 558, 90
N. W. 228. Sufficient facts are not stated in the complaint
to bring it within the principle of the case cited. Neither are
the necessary facts stated to bring it within the decision of
this court in Flanders v. Wood, 24 Wis. 572 ; Church v. Joint
School List. 55 Wis. 399, 13 K W. 272; Smart v. Hart, 75
Wis. 471, 44 K W. 514; Ruhland v, Jones, 55 Wis. 673, 13
N. W. 689 ; De Pauw v. Oxley, 122 Wis. 656, 100 N. W.
1028 ; and McCord v. Eastern R. Co. 136 Wis. 254, 116
N". W. 845, in all of which cases equity jurisdiction was
sustained. The complaint does not allege that any particu-
lar injury or miscliief will result from any threatened in-
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12] AUGUST TERM, 1909. 607
Le Blond v. Peshtigo, 140 Wis. 604.
jury by the defendants during the pendency of the action,
and no temporary restraining order is sought There is no
averment in the complaint from which it could be inferred
that the pleader desired any relief except to be restored to
possession and to recover damages sustained prior to the in-
stitution of the suit. The single allegation relied on to bring
the case within the rule that equity will take jurisdiction
where it is necessary to do so to prevent a multiplicity of
suits is that certain defendants threaten and assert that if
plaintiff fences up the highway they will tear down the fence
and continue to use and occupy the same, and that plaintiff
will be put to the necessity of bringing a multiplicity of ac-
tions to protect her rights. This allegation, construed in con-
nection with the relief prayed, is insufficient to make a case
in equity unless it can be maintained on some other ground.
It is urged, however, that the action is brought to recover
an easement only, and that ejectment will not lie where such
recovery is sought, and that the plaintiff has no adequate
remedy at law. It is clear that a mere action for trespass
would not furnish an adequate and complete remedy, and, if
it be true that the complaint does not state the necessary facts
to constitute a cause of action in ejectment, the plaintiff
has planted her suit in the proper forum. Sec. 3074, Stats.
(1898), prohibits recovery by ejectment unless the plaintiff
at th6 time of commencing the action has a valid, subsisting
interest in the premises claimed and a right to recover the
same or the possession thereof, or of some share or interest
in a portion thereof to be proved and established in the ac-
tion. Sec. 8077, Stats. (1898), provides that the complaint
in an action of ejectment shall set forth that the plaintiff has
an estate or interest in the premises claimed, and shall state
the nature and extent of such interest, whether in fee, dower,
for life, or for a term of years, and that he is entitled to the
possession of such premises, and that defendant unlawfully
withholds the possession thereof from him. Sec. 3075, Stats.
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608 SUPREME CQUET OF WISCONSIN. [Nov.
Le Blond v. Peshtigo, 140 Wis. 604.
(1898), provides that the action of ejectment must be brought
against an actual occupant of the premises claimed, if occu-
pied, and, if not so occupied, then it must be brought against
some person exercising acts of ownership in the premises
claimed, or against some one claiming title thereto or some
interest therein. Sec 3084, Stats. (1898), requires that the
verdict rendered in an ejectment action (if for the plaintiff)
shall specify the estate established by the plaintiff on the
trial, "whether it be in fee, dower, for life or for a term of
years.'*
The complaint before us shows ownership in fee by the
plaintiff, wrongful entry and occupation by the defendants,
and permanent deprival of the use and enjoyment of the strip
of land appropriated. Every essential fact necessary to state
a good cause of action in ejectment under sec 3077, Stats.
(1898), is to be found in the complaint. We construe the
averment that plaintiff has been permanently deprived of the-
use and enjoyment of the strip of land in question as tanta-
mount to a statement that she has been deprived of the pos-
session of such strip. The complaint, however, does show
that defendants entered upon the land for the purpose of
building a highway and drain, and that the same were built,
and that the highway has since been in use. Is the plaintiff
suing to recover the posseeeion of the land or for the recovery^
of a mere easement over it, and, if the latter, will ejectment
lie? These are the vital questions involved in determining^
whether the complaint is fatally defective
In Oardiner v. Tisdale, 2 Wis. 153, and in Weishrod v.
C. & N. W. B. Co. 21 Wis. 602, it was held that the owner
in fee of a street could maintain ejectment against an incum-
brancer or occupier inconsistent with or repugnant to the pur-
pose of a public easement In Raci/ne v. Crotsenberg, 61 Wis.
481, 21 N. W. 520, the defendant took possession of what
was claimed to be a public alley and appropriated the same
to his own exclusive use Ejectment was brought to recover
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12] AUGUST TERM, 1909. 609
Le Blond v. Pesbtigo, 140 Wis. 604.
the easement which the public had in such alley. It was held
that ejectment would not lie to recover a mere incorporeal
right, and that it would only lie to recover things corporeal
which might be the subject of seisin, entry, and possession.
It was further held that sees. 3077, 3084, Stats. (1898),
were not broad ^lough to give the plaintiff a right of action,
because the plaintiff had no estate "in fee, dower, for life
or for a term of yeai*s" in the real property sought to be re-
covered, as the statute required. This case is not authority
to the proposition that where the owner of the fee is excluded
from the possession of his land by the use of an easement over
the same he may not recover such possession in ejectment.
On the contrary, the case, inferentially at least, holds that
such an action would lie. Fritsche v. Fritsche, 77 Wis. 270,
45 K W. 1089; Maurer v. Stiner, 82 Wis. 99, 51 N. W.
1101 ; and Buchner v. Hutchings, 83 Wis. 299, 53 N. W.
505, were actions where the plaintiffs sought to recover or to
be restored to the right to use and enjoy a mere easement
over lands to which they had no title or right of possession,
nor any right whatever except to use and enjoy an easement
over the same. The plaintiffs, therefore, were not the own-
ers of such an interest in the fee as would bring them within
the terms of sea 3077, Stats. (1898). In Lawe v, Kankauna,
70 Wis. 306, 35 N. W. 561, the plaintiff, who claimed an
estate in fee, brought ejectment to recover certain lots which
the city occupied and used for the landing of a swing bridge
and in connection with a street leading to the same. It was
held that ejectment was not only a proper remedy but was
the only adequate one. The value of this case as a precedent
is minimized by the fact that the question presently under
discussion was not raised or considered by the court, and by
the further fact that the case has been to some extent distin-
guished in PinJcum v. Eau Claire, 81 Wis. 301, 51 N. W.
550.
The only other case in this court bearing on the question is
Vol. 140—39
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610 SUPREME COUET OF WISC0NSI:N^. [Nov.
Le Blond v. Peshtigo, 140 Wis. 604.
the one last referred to — Pinkum v. 'Eau Claire. There the
grantors of the plaintiff conveyed on condition to the city of
Eau Claire an easement over certain lands for the purpose
of constructing a canal in consideration of certain reciprocal
rights and privileges to be conferred on the grantor, the prin-
cipal one being that the city should erect a certain highway
which would give the grantor access to a stone quarry. The
action was brought in equity, and, among other relief sought,
the plaintiff asked for a decree commanding the city to pro-
ceed at once with the construction of the highway and com-
pelling its maintenance thereafter, and that in case of de-
fault on the part of the city in this regard the grant be an-
nulled, vacated, and set aside, and that the cloud created by
the deed of grant be removed, and that the defendant be re-
quired to remove all obstructions which it had placed and
then maintained upon the premises, and that plaintiff be put
in possession thereof. It was urged that plaintiff had an
adequate remedy by ejectment. The court treated the action
as one brought to recover the easement formerly granted, and
held that "ejectment is not the appropriate remedy for the
recovery of a mere easement." In the Pinkum Case the
thing conveyed was an incorporeal right, and what the plaint-
iff sought to do was to nullify the grant and recover back the
thing granted in case he could not compel specific perform-
ance.
An easement is an incorporeal right which can only be
acquired by grant or prescription, and is incapable of manual
delivery. Land^ on the contrary, is a tangible thing of which
actual possession may be delivered. There is a substantial
distinction between an action brought to recover an intangi-
ble right and one brought to recover actual manual possession
of real property which has been lost to the owner by the exer-
cise of an incorporeal right or in any other way. In the one'
case possession of the thing sought cannot be delivered through
a court of law; in the other it may. Here what the plaintiff
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12] AUGUST TEEM, 1909. 611
Farrell v. Phillips, 140 Wis. 611.
seeks to recover is not the possession of some mere right or
easement, but possession of a distinct part and parcel of' her
farm. Where, as here, the owner in fee has been deprived
of the possession of real estate, the statute gives a right of
action in ejectment to recover that possession, and it is im-
material whether the deprivation of such right has been
caused by the exercise of an easement which wrongfully ex-
cluded plaintiff from her possession, or otherwise. If the
only right plaintiff can now exercise over the strip of land in
question is the right to use it as a highway in common with
all others, then she has been deprived of her possession.
Strong v. Brooklyn, 68 W. Y. 1. And the allegation of the
complaint, which on demurrer must be taken as true, is that
plaintiff has been deprived of the use and enjoyment of her
property, and not of a mere easement over the same.
By the Court, — Order affirmed.
WiNSLOW, C. J., dissents.
Faebell, Respondent, vs. Philt.tps, Appellant.
October 27 — Novemher 12, 1909.
(1, 2) Larceny: Negotiable note: Felonious intent: Taking hy trick.
(3, 4) Malicious prosecution: Probable cause: Special verdict:
Omitted finding: Appeal: Presumptions. (5) Witnesses: Credi-
bility: Conviction of contempt of court.
1. Although the maker of a negotiable note had perhaps a right to
rescind, for failure of consideration, an entire contract as part
of which such note was executed and delivered, yet, until such
rescission at least, the note was the property of the payee and
was subject of larceny.
2. A felonious intent to deprive the possessor of the thing taken
being essential for larceny, if one openly takes property under
the honest though mistaken belief that he himself has title.
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612 SUPEEME COUKT OF WISCONSIN. [Nov.
Farrell t. Phillips, 140 Wis. 611.
the act ordinarily will not he larceny; hut the claim of title
must he at least colorahle and he made in entire good faith.
A taking hy artifice or fraud or accompanied hy acts of con-
cealment will raise a strong inference of felonious intent
8. In an action for a malicious prosecution of plaintiff for larceny
of a note, it appeared that the note was given hy plaintiff to
defendant as part of an entire contract providing for the rent-
ing of a huilding and assignment of a liquor license hy defend-
ant to plaintiff; that defendant had no such license; and that
plaintiff, without rescission of the contract for failure of con-
sideration, had hy a trick got the note from defendant's posses-
sion and carried it away. Held, that defendant had prohahle
cause for the prosecution.
4 In &n action for malicious prosecution the special verdict did
not contain any finding as to whether or not there was prohahle
cause for the prosecution, hut Judgment was rendered thereon
for plaintiff. Held, under sec. 2858m. Stats. (Laws of 1907.
ch. 346). the case must he treated on appeal as though the
court had found as a fact that there was lack of prohahle cause
and appellant had excepted to the finding.
5. Contempt of court, either civil or criminal, is not a "criminal of-
fense" within the meaning of sec. 4073, Stats. (1898), which per-
mits "conviction of a criminal offense" to he proved to affect
the credihility of a witness, either hy the record or hy cross-
examination.
6. Where, under sec. 4073, Stats. (1898), the credihility of a wit-
ness is sought to he affected hy proving hy the record his con-
viction of a criminal offense, such proof should consist of the
record of the conviction and judgment alone, and not the full
record of the case.
7. A single isolated act of contempt of court committed twelve
years prior to the trial does not properly come within the rule
which permits, upon cross-examination, inquiries into the previ-
ous life, hahits. and occupation of a witness, as tending to
throw light on his veracity.
Appeal from a judgment of the circuit court for Oconto
county : S. D. Hastings, Circuit Judge. Reversed.
PhiUips commenced a criminal prosecution against Far-
rell for the larceny of a promissory note, and, the prosecution
being dismissed by the examining magistrate, Farrell brought
this action for malicious prosecution. Phillips's defenses
were that the plaintiff actually committed the larceny and
that he (Phillips) acted on the advice of counsel.
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12] AUGUST TERM, 1909. 613
Farrell v. Phillips, 140 Wis. 611.
Most of the facts were undisputed. The defendant, Phtl-
lips, in April, 1908, owned a building in the city of Oconto
which he desired to rent for saloon purposes. Prior to May
16th he had deposited $200 with the city dork and applied
for a license for the balance of the license year, but had re-
ceived no license because the city council had not met On
the 16th of April he met Farrell, and after some talk an ar-
rangement was made by which Farrell was to lease the build-
ing and operate a saloon in it at an agreed rental, and was to
give his note indorsed by a responsible indorser for half the
eity and government license, amounting to $112, Phillips
paying the other half. At this point arises the only serious
dispute as to the facts. Farrell daimed that Phillips said
he already had the city license and would assign it to him,
while Phillips claims that he only told Farrell that he had
applied for the license and deposited the money and would
have it issued to him {Farrell). On the same day the oral
arrangement was so far carried out that the lease was drawn •
in duplicate and a copy delivered to each party, a negotiable
note for $112, with the indorsement of one Dr. Watkins^ was
signed by Farrell and delivered to Phillips, and the key of
the building delivered to FarreU. Upon the following morn-
ing Farrell called at Phillips's house and asked Phillips to
let him see the note to see if it was all right, and Phillips
handed him the note, and Farrell secretly and without Phil-
lips's knowledge substituted for the indorsed note his own
note, without indorsement, and handed it to Phillips, who
did not discover the substitution until afterwards. FarreU
daimed that he had ascertained that Phillips had no license,
and that he was afraid that PhUlips was not going to deal
fairly with him, and so he determined to get his note back
and call the deal off. Nothing further was done towards
carrying out the contract Farrell left Oconto the next day,
and Phillips immediately made sworn complaint against him
for larceny of the note.
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614 SUPKEME COURT OF WISCONSIN. [Nov.
Farrell v. Phillips, 140 Wia. 611.
«
The jury returned a special verdict finding: (1) That
Phillips maliciously procured FarrelVs arrest; (2) that the
agreement between the parties was that Phillips would as-
sign to Farrell a license which he then claimed to have, and
that this agreement was the consideration for the note in
question; (3) that Phillips did not make a full, fair, and
honest statement of the material facts to an attorney before
the prosecution commenced; (4) that PhiUips did not sin-
cerely and in good faith believe when he swore out the war-
rant that the plaintiff was guilty of larceny; and (5) that
plaintiff's damages amounted to $2,335.77, of which sum
$2,000 were punitory damages.
The court gave defendant the option to consent to judg-
ment for $935.77 within twenty days, and, in the event of
failure to exercise the option, gave plaintiff the option to
take judgment for $635.77, and ordered that if neither op-
ti<Mi should be exercised the verdict be set aside and a new
trial granted. The defendant did not exercise its option,
but the plaintiff chose to take judgment for $635.77, and
from that judgment the defendant appeals.
For the appellant there was a brief by F. X. Morrow and
Sheridan <& Evans, and oral argument by W, L. Evans. -
Allan V. Classen and D. D. Conway, for the respondent
WiNSLOw, C. J. In order to sustain an action for ma-
licious prosecution it must appear: (1) That the defendant
commenced a prosecution; (2) that it has terminated in the
plaintiff's discharge; (3) that it was commenced maliciously
and (4) without probable cause. In this case the first two
facts were admitted, and the contest was as to the third and
fourth propositions. By their verdict the jury found malice,
but did not find lack of probable cause, so the verdict on its
face seems to omit an essential fact.
It appears that the trial judge considered that when the
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12] AUGUST TERM, 1909. 615
Farrell v. Phillips, 140 Wis. 611.
jury, by its second finding, found that the agreement was
that Phillips was to assign to Farrell a license which he then
had, in consideration for the indorsed note, it was in effect
found that the note was without consideration and of no
value, and hence that no larceny was committed in taking it,
and that if there was no larceny then there could be no prob-
able causa We are unable to agree with this conclusion.
The note had been fully executed and delivered. It was
part of an entire contract which included the rental of the
building as well, and cannot be considered as standing alone
or based upon an entirely separate consideration. It was
negotiable on its face, and there was nothing to prevent its
holder from negotiating it, thus relieving it from the dofaise
attempted to be made. It was property, and it was the de-
fendant's property, at least until a rescission of the contract
had been made. The fact that there was a defense claimed
to exist which might be successful at the end of a lawsuit
did not deprive it of its character as property nor justify the
maker in taking it from its owner by force or stratagem.
If sudi were the rule, the mission of the courts in the set-
tlement of disputes as to the ownership of property would
seem to be at an end. These propositions do not seem to call
for the citation of authority in their support They are self-
evident So the verdict still remained insufficient because
it nowhere found the want of probable cause. At this point,
however, sec 2858m, Stats. (Laws of 1907, ch. 346), comes
in* This section provides that:
"Whenever any special verdict shall be submitted to a
jury, and there is omitted therefrom some controverted mat-
ter of fact, not brought to the attention of the trial court by
request, but essential to sustain the judgment, such matter of
fact shall be deemed determined by the court in conformity
with its judgment, and the nf^lect or omission to request a
finding by the jury on such matter shall be deemed a waiver
of jury trial pro tanto and a consent that such omitted fact
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616 SUPREME COUET OF WISCONSIN [Nov.
Farrell v. Phillips, 140 Wia. 611.
be determined by the court. The finding or determination
of such omitted fact by the court may be reviewed on appeal
without any exception thereto."
No claim is made that this law is unconstitutional or in-
effective for any other reason, and we have discovered no
reason why it should not be enforced as it reads. We must
therefore treat the case as though the court had found as a
fact that there was lack of probable cause and the appellant
had excepted to the finding.
Is the finding against the clear preponderance of the evi-
dence t We think it is. Upon the plaintiff's own version of
the transaction by which he obtained possession of the note we
think it affirmatively appears that the defendant had prob-
able cause to believe the plaintiff guilty of larceny. As we
have seen, the note in question was the property of the de-
fendant and had value. The plaintiff's own. story shows
that without rescinding or att«npting to rescind the contract,
of which the note was a part, he took the note from its owner^s
possession by a fraudulent and secret trick and returned it
to its indorser. Of course the felonious intent to deprive the
possessor of the thing taken must be present in order to con-
stitute larceny, and, if a man openly take property under the
honest though mistaken belief that he l^imself has title, the
act ordinarily at least will not be larceny. But in order
that there should be an acquittal on this ground it is ess^itial
that the claim of title be at least colorable and that it be
made in eirtire good faith. If the taking be not open, but
be accomplished by artifice or fraud, or be accompanied by
acts of concealment such as were present here, the inference
will be strong that the felonious intent was present 1 Whar-
ton, Crim. Law (10th ed.) §§ 883, 884; State v. Bond, 8
Iowa, 540.
Upon the facta admitted here no court would be justified
in taking the question of defendant's guilt from the jury,
and a verdict of guilty could not be set aside. It follows
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12] AUGUST TERM, 1909. 617
Farrell v. Phillips, 140 Wis. 611.
necessarily that tlie defendant had probable cause to com-
mence the prosecution for larceny, and that the finding to the
contrary, implied "by the statute, must be set aside as con-
trary to the dear preponderance of the evidence.
While this necessitates reversal of the judgment and a di-
rection to enter judgment dismissing the complaint, we deem
it proper to notice a ruling upon evidence which was fully
argued. Upon the defendant's cross-examination he was
asked whether he had not been convicted and fined for con-
tempt of court twelve years previously, during the trial of
an action to which he was a party ; such contempt consisting
in treating a juryman in a house of ill-fame. The defend-
ant not being willing to admit the fact that the alleged treat-
ing was done in a house of ill-fame, the plaintiff was allowed
to read in evidence the entire record in the contempt proceed-
ing, from the complaint to the judgment, as a part of the
cross-examination. We think this was erroneous for at least
two reasons: First, the statute allows the "conviction of a
criminal offense" to be proven to affect the credibility of a
witness, either by the record or by cross-examination of the
witness (sec 4073, Stats. 1898), and conviction of a con-
tempt of court, either civil or criminal, is not a conviction of
a "criminal offense," as very plainly appears from the pro-
visions of sec. 2569, Stats. (1898), which expressly provides
that persons punished for contempt even criminally shall
still be liable to indictment or information for the offense.
Second, even if it were proper under the section named to
prove conviction for contempt of court by the record, the
proof should consist of the record of the conviction or judg-
ment alone, and not the fuU record of the case, which may
well contain matters and charges derogatory in their nature,
well calculated to prejudice the jury, but which in fact are
no part of the judgment and may never have been proven.
It is said that the evidence was proper under the general
role that upon cross-examination inquiries into the previous
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618 SUPREME COURT OF WISCONSIN. [Nov.
Koenig v. Koenig, 140 Wis. 618.
life, habits, and occupations of a witness may be properly
allowed in the discretion of the trial court, as tending to-
throw light on his veracity. StcUe v. Nergaard, 124 Wis.
414, 102 N. W. 899. The line is sometimes difficult to
draw in this field, but we are satisfied that a single isolated
act of contempt of court, committed twelve years prior to the
trial, does not properly oome within the rule. It can hardly
be said to give character to the life of the witness, and fur-
thermore its remoteness in point of time should bar its ad-
mission.
By the Court, — Judgment reversed, and action remanded
with directions to dismiss the complaint
Koenig, Appellant, vs. Koenig, Respondent
October 27 — November 12, 1909.
Pleading: Evidentiary matter: Contracts: Support of parent: Com-
pensation: Evidence: Questions for jury.
1. Where, in an action against plaintiffs sister to recover the value
of services rendered and expenses incurred at her request In
supporting her father, the complaint, after stating that cause of
action, further alleged that defendant, in consideration of the
support of her father, had received by his will his entire estate^
and that she had failed personally to support him, but had en-
gaged plaintiff to do so for her, which he did as before stated,
these last allegations were properly stricken from the pleading
as being a relation of mere evidentiary clrcimistances.
2. Evidence in such case that defendant had received or been
promised her father's property as consideration for supporting
him before she requested plalntift to do so, would have been
competent as tending to show a mutual understanding that she
would compensate plalntift; but mere statements made by
plaintiff on his crcss^xami nation (which were properly stricken
out because not responsive to any question) that he expected
pay from defendant because she got the father's property, would
not, if they had remained in the case, have tended to show
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12] AUGUST TERM, 1909. 619^
Koenig v. Koenig, 140 Wis. 618.
that defendant received the property pursuant to any promise
made before said request
8. The mere facts that a son was requested by his sister to sup-
port their father; that he did so for twelve years without sug-
gesting, until after the father's death, that he expected com-
pensation from the sister; that the sister received by the will
the father's property; and that the son claimed compensation
out of the father's estate, — ^were not sufficient to carry to the
Jury the question whether there was an agreement or under-
standing that t^e sister was to compensate him.
Appeal from a judgment of the circuit court for Brown
county : S. D. Hastings, Circuit Judge. Affirmed.
Action to recover, on contract, the reasonable value of
plaintiffs services and expenditures in supporting his father.
The action was against a sister upon the theory that she be-
came obligated to the father to support him by reason of his
having agreed to make her his heir, and that she employed
plaintiff to aid her in satisfying her obligation, which he did,
rendering the services and incurring the expenses in ques-
tion.
Following the statement of a cause of action, in general
terms, to recover for the reasonable value of services ren-
dered and for expenses incurred by plaintiff at the request of
defendant, the complaint contained a paragraph to the effect
that defendant, in consideration of support of her father, re-
ceived by his will his estate valued at $3,500; that she failed
to personally render the service and engaged plaintiff to do
so in her stead, which he did, as stated in the general declara-
tion of his cause of action.
Defendant joined issue on all allegations of the complaint,
except as to the relationship of the parties, and that plaintiff
aided in supporting the father.
On motion, the added paragraph of the complaint, above
mentioned, was stricken out as surplusage.
There was evidence to this effect: In 1896, plaintiff, a
miller by trade, and a married man, was residing in a homo
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620 SUPREME COUET OF WISCONSIN. [Not.
Koenig v. Koenig, 140 Wi& 618.
of his own. The father of plaintiff and defendant possessed
a competency and boarded at a hotel, his expenses being paid
by defendant. In such situation, in October, 1898, plaintiff
visited defendant, by her written invitation. She then in-
formed plaintiff that the care of her father was too much of
a burden for her and requested him to assist, which he con-
sented to do. The father was present and assented to the
arrangement Following that, for a period of some twelve
years, terminating with death of the father, he resided with
the plaintiff and was supported and cared for by him, with-
out maldng any daim upon defendant therefor in the mean-
time. There was further evidence that plaintiff expected
defendant to pay for the service because she asked him to per-
form it, and that he filed a claim against the father's estate
because she got his property, on the theory that she should
pay the claim if it' was not otherwise paid. No proof was
offered or received to the effect that, in the lifetime of the
father, defendant agreed to take care of him in consideration
of a promise to be paid therefor by being made his benefici-
ary by will. On cross-examination, unresponsively, plaint-
iff stated twice that he had thought defendant should pay his
claim because she got the father's property. The closing in-
cidents of the evidence were a question as to whether plaint-
iff knew at the time he was asked by defendant to aid her in
caring for the father, that she had acquired, or was about to
receive, property from him as consideration for supporting
him, an objection to the question, at first sustained, but, upon
it being stated that the question was confined to what oc-
curred at the time plaintiff was requested to take care of the
father, the court saying the question could be answered if
counsel purposed proving anything on the subject which was
said at the time of the request. Thereuj)on the subject was
dropped. At the close of plaintiff's evidence, on motion of
counsel for defendant, a nonsuit was granted and judgment
ivas rendered accordingly.
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12] AUGUST TERM, 1909. 621
Koenig v. Koenig, 140 Wis. 618.
For the appellant the cause was submitted on the brief of
John F. Waiermolen.
For the respondent there was a brief by Minahan & Mina-
han, and oral argument by V. I. Minahan,
Marshall, J. It seems clear, the features of the com-
plaint respecting defendant having received her father's es-
tate as consideration for supporting him, and that she did
not do so, but plaintiff did by her request, as indicated in the
cause of action stated, were a relation of mere evidentiary
circumstances and, as such, not properly pleadable. So no
error was committed in striking such relation from the plead-
ing.
Doubtless the fact, if there were such, that respondent had
received or been promised her father's property as considera-
tion for supporting him before she requested plaintiif to do
80, — ^would be entitled to considerable significance on the
question of whether there was a mutual understanding at the
time of such request, that she should compensate appellant,
as he claims was the fact. So proof of the existence of such
circumstance was competent. The difficulty with appel-
lant's position, however, is that no evidence on the subject
was offered. Mere unresponsive suggestions that appellant
expected pay from respondent because she got the father's
property, were properly stricken out because of their imre-
sponsive character. Had the evidence remained in the case
it would not have established or tended to establish the claim
that respondent received the property pursuant to a promise,
made prior to the alleged implied agreement to pay respond-
ent for caring for the father.
It is considered that the question as to whether appellant
knew when respondent requested him to care for the father,
that she had received, or was about to receive, property from
the latter as consideration for supporting him, and the offer
to allow any evidence that appellant might offer as to what
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622 SUPREME COURT OF WISCONSIN. [Nov.
Koenig v. Koenig, 140 Wis. 618.
was then said on the subject between the parties, opened the
door for appellant to prove the circumstance relied on, if it
existed and was in mutual contemplation, by anything said
at the time the request was made by respondent of appellant,
upon which the claim against the former was predicated.
As the case stood at the close of the evidence, there was no
proof that respondent received her father's estate in consid-
eration of her having promised to support him, and no sug-
gestion that any proof could be produced, other than that re-
spondent did receive the father's property, which, standing
alone, had the evidence been produced, would not have
raised a jury question as to whether there was, as daimed, a
mutual understanding twelve years before. There were
the mere circumstances, that appellant, who was morally, as
well as respondent, bound to support the father if he needed
assistance, which does not appear to be the fact, was re-
quested by respondent to assume such care; that he did so
and carried the burden twelve years without any su^estion
in the meantime that he expected compensation from his sis-
ter; and that he claimed such compensation in the end out
of the father's estate. Such circumstances come far short
of sufficient to warrant holding that it appeared, with reason-
able certainty, that there was a mutual understanding, as
claimed, at the time appellant took the father under his care.
Therefore, the motion for a nonsuit was properly granted.
By the Court. — Judgment affirmed.
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12] AUGUST TERM, 1909. 623
Bodenheimer v. Cln(!ago & N. W. R. Co. 140 Wis. 623.
SoDBNHBiMEit, Appellant, vs. Chicago & Northwestern
Eailway Company, Respondent,
October es—Novemher It, 1909,
^Railroads: KilJing of horse on track: Evidence: Instructions invad-
ing province of jury.
1. Upon the evidence in an action for the value of a horse killed on
defendant's track it Is held that the trial court properly refused
to direct a verdict for defendant.
2. The evidence being conflicting as to whether the horse was killed
at a highway crossing or north thereof on defendant's track be-
yond a cattle-guard alleged to have been defective, a charge to
the jury laying stress upon the strength of the testimony of the
engineer of the train, who testified for defendant, and upon the
weakness of the plaintiff's evidence, stating in effect that the
engineer was either telling the truth or wilfully lying, and in-
timating that he was telling the truth, is held prejudicially er-
roneous as being argumentative and Invading the province of
the jury.
3. Further Instructions, as to the testimony of the engineer, that
there was nothing improbable in his story and nothing to sug-
gest why It would be more favorable to him to have the horse
struck at one place than another, that there was nothing to
Impeach him unless certain tracks seen by a witness for plaint-
iff were actually tracks made by this horse, and that the jury
must endeavor to reconcile other testimony with that of the
engineer, are held erroneous and prejudicial because precluding
the jury from considering, in weighing the engineer's testimony,
his employment by the defendant, his appearance and demeanor,
the probability of his story, and other proper tests.
4. A charge that the testimony of a witness was of a negative char-
acter and not entitled to the same weight as that of another
witness was erroneous, both because the testimony of the first
witness, though negative in form, was positive in fact, and be-
cause the jury might well be of the opinion th&t the witnesses
were not equally credible.
Appeal from a judgment of the circuit court for Brown
county : S. D. Hastings, Circuit Judge. Reversed.
This is an action brought to recover the value of a horse
iilled by one of defendant's trains through the alleged negli-
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624 SUPKEME COUKT OF WISCONSIN. [Nov.
Bodenhcimer v. Chicago A N. W. R. Co. 140 Wis. 623.
gence of the defendant in not maintaining a suitable cattle-
guard on the northeasterly side of its right of way where a
highway crossed the same. The questions involved were^
whether the horse was struck north of the cattle-guard or cm
the public highway, and whether any want of ordinary care
on the part of the plaintiff contributed proximately to the loss
of the horse. The jury found that there was no contributory
negligence on the part of the plaintiff and that the horse was
not struck north of the cattle-guard. The evidence was con-
flicting as to whether or not the horse was struck north of the
cattle-guard,- there being evidence that he was struck on the
highway south of the cattle-guard and also evidence tending
to show that he was struck about fifty feet north of the cattle-
guard. One witness testified that he saw tracks where the
horse had walked through a ditch from the pasture from
which he escaped, and saw where the horse turned and crossed
the cattleguard, and also tracks from the cattle-guard north
on the right of way about fifty or sixty feet^ and saw no tracks
beyond this ; also found hair and a piece of bone between the
place where he found the last tracks and where the horse lay ;
that the tracks appeared to be fresh horse tracks, and such
distance apart as to indicate that the horse was walking from
a point near the cattleguard northerly. The engineer on the
train testified that the engine struck the horse on the highway
crossing south of the cattleguard, and that at the time the
train was moving at a speed of from fifty to sixty miles aa
hour ; that there was a curve in the track as it approached the
crossing, and that with the train going north he was on the
inside of the curve as he approached the crossing, and that he
would have to be at least 600 or 600 feet south of the crossing
before he could see the west rail of the track at the highway,
and that the horse approached from the west and came onto
the crossing and turned north, and about the time it turned
north it was struck ; that he practically struck tlie horse when
he saw it, being within 100 feet of the crossing when he first
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12] AUGUST TEEM, 1909. 625
Bodenheimer t. Chicago A N. W. R. Co. 140 Wis. 623.
saw the horse ; that the curve south of the crossing was about
800 feet from the crossing, and that at sixty miles an hour the
train would travel from the curve to the crossing in one or two
seconds. Another witness, who was working on the track
about 2,400 feet north of the crossing, testified that he saw .
the train as it approached, but saw no horse at the crossing
nor north of it Another witness, who was on a load of hay
east of the track a little over a block from the highway cross-
ing with nothing to obstruct the view, testified that she saw
the train pass over the crossing and no horse was struck there,
and that if there had been she would have seen it, and that
her view north of the cattle-guard was obstructed by bushes
along the right of way. The court overruled a motion by
defendant for a directed verdict.
Plaintiff duly excepted to the following portion of the
charge :
"Now there is but one witness who has testified who says
he positively knows what the fact is, and that is Mr. Kittel.
The circumstances were such as detailed by him as to show
that he could not be mistaken. He testifies positively to a
fact which he must have in his own knowledge, and he is either
telling the truth or he is wilfully telling a falsehood. There
is nothing improbable in his story. There is no chance for
his being mistaken, and nothing to suggest any motive on his
part for falsifying in reference to it — ^that is, there is nothing
in the situation or his connection with the accident which
would suggest any reason why it would be more favorable to
him to have the horse struck one place or the other. Is he
wilfully lying when he says he struck the horse on the high-
way ? Now, as I said, there is no testimony from any witness
who claims to know positively where the horse was struck,
except Mr. Kittel. The plaintiff relies upon circimistances,
and those circumstances are the alleged finding of tracks
north of the cattle-guard which were the tracks made by this
horse. Now, in considering the testimony in reference to
those tracks, you have two things to consider, and the first is:
Are the witnesses who testify telling the truth ? They may
be telling the truth, not intending to falsify as to anything.
Vol. 140-40
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626 SUPREME COXJRT OF WISCONSIN. [Nov.
Bodenheimer v. Chicago A N. W. R, Co. 140 Wis. 623.
but they may be mistaken. And the next question you have
to consider — ^Are they mistaken ? Is what they saw, assum-
ing that they ai^ telling the truth, shown to be tracks made
by this horse, or are they mistaken in reference to what they
saw^ in their supposition — conclusion — ^that those tracks were
made by this horse ? Unless you are satisfied that they are
honest, what they saw were tracks made by this horse, or a
horse, while he was walking or running, then there is no con-
flict of testimony in this case at alL There is nothing to
impeach or overcome the testimony of Mr. Kittel unless what "
they saw were actually tracks made by this horse. Drop that
out of the case -and there is no evidence in this case tending
to show that the horse was not struck just as Mr. Kittel testi-
fies that it was. Now, you will consider whether if that horse
came onto the track as Mr. Kittel testified it did, whether it
could not have done so without her seeing it, even if she had
been looking right at the train all the time; and then her tes-
timony is of a negative character, which is not entitled to the
same weight as positive testimony. She simply says that she
didn't see the horse. She saw the train, but she didn't see
the horse. That may be perfectly consistent with the truth
of Mr. Kittel's statement that the horse came on the track
and was killed just as he said. And the testimony of the sec-
tionman is of a negative character. He doesn't say that there
wasn't any horse on the track. It is conceded by everybody
there was a horse on the track somewheres, and that he might
have seen it by looking. He didn't see it. The only argu-
ment that can be made from that is that if the horse had been
on the track, walking north of the highway, he would have
been much more apt to have seen it than he would have been
had it come onto the track as Mr. Kittel testified it did."
Motions were made by plaintiflF to amend the verdict and
for a new trial, which were denied and due exception taken,
and judgment was rendered in favor of the defendant, from
which this appeal was taken.
For the appellant there was a brief by Sheridan <6 Evans,
and oral argument by P. Sheridan.
For the respondent the cauise was submitted on tlie brief
of William O. Wheeler.
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12] AUGUST TERM, 1909. 627
Bodenheiiner v. Chicago & N. W. R. Ck). 140 Wis. G23.
Kerwin, J. The appellant claims that the judgment
•should be reversed for error in the charge. We have set out
in the statement of facts the portion of the charge excepted to
and need not recite it here. The main contention of the re-
spondent is that, regardless of any alleged errors in the charge,
the judgment should be aflBrmed, because the court should
have directed a verdict for the defendant at the close of the
evidence; therefore the plaintiff was not prejudiced by any
subsequent error. This, of course, involves the question
whether the evidence was such as to warrant the court in
directing a verdict for defendant. We cannot agree with
counsel for respondent that a verdict should have been di-
rected. There was ample evidence to support a verdict for
plaintiff. We have referred to the evidence briefly in the
statement of facts and need not repeat it here.
We therefore come to the question whether the case was
fairly submitted to the jury without prejudicial error. The
vital question for determination by the jury was whether the
horse was killed north of the cattle-guard. Upon this ques-
tion there was a sharp conflict in the evidence, and, in view
of its character, it was of the utmost importance that the issue
be fairly presented to the jury. We think the charge was well
calculated to impress the jury with the idea that they should
find that the horse was killed on the highway crossing and
not north of the cattle-guard. The great stress placed by the
court upon the strength of the evidence of defendant's wit-
ness Kittel and the weakness of the evidence of plaintiff's
witnesses was strikingly set forth in the charge. The court
told the jury in effect that Kittel either wilfully swore falsely
or was telling the truth, and used other language intimating
that he was telling the truth, and thus invaded the province
of the jury, who were charged with the duty of passing upon
the credibility of the evidence. This portion of the charge
was prejudicial error on the ground that it was argumentative
and invaded the province of the jury. Dmgman v. State,
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628 SUPKEME COURT OF WISCONSIN. [Nov.
Bodenheimer v. Chicago & N. W. R. Co. 140 Wis. 623.
48 Wis. 485, 4 N. W. 668 ; Cona^ay v. MUcTiell, 97 Wis. 290,
72 N. W. 752 ; Schutz v. State, 125 Wis. 452, 104 N. W. 90.
By the charge the jury were not permitted to find that Kittel
was mistaken, but were forced to find that he either told the
truth or wilfully swore falsely. We think the jury would
have been justified in finding that he was mistaken, although
he honestly believed he was telling the truth. In view of the
situation as set out in the statement of facts, it seems dear
that Kittel may have been mistaken as to whether the horse
was north or south of the cattle-guard when struck, and
whether the conflict of evidence in that regard might not have
been accounted for on the ground of innocent mistake was a
proper question for the jury. Moore v. Kendall, 2 Pin. 99 ;
Ely V. Tesch, 17 Wis. 202 ; Roberts v. State, 84 Wis. 361, 54
N. W. 580 ; Smith v. Lehigh YaUey R. Co. 170 N. T. 394, 63
N. E. 338.
The court further, after instructing the jury that the wit-
ness Kittel was either telling the truth or wilfully falsifying,
told them in effect that there was nothing improbable in his
story, nothing that would suggest why it would be more favor-
able to him to have the horse struck at one place than at the
other, and that there was nothing to impeadi or overcome his
testimony \mless what plaintiff's witness saw were actually
tracks made by this horse, and that they must endeavor to
reconcile other testimony in the case with Mr. KittePs. This
instruction was clearly erroneous and prejudicial, because it
excluded from the jury the right to consider KittePs employ-
ment by the defendant as a circumstance to be considered in
weighing his testimony, as well as the appearance of the wit-
ness, his demeanor, and the probability or improbability of
his story, and from weighing his testimony in the light of
weU-recognized tests permissible for that purpose.
Other portions of the charge respecting the credibility of
tlie evidence of the witness Miss Cormier and the rule respect-
ing positive and negative testimony, referring to the testi-
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12] AUGUST TERM, 1909. 629
Day V. Egertsen, 140 Wis. 629.
raony of Miss Cormier and Mr. Kittel, were erroneous and
calculated to prejudice the jury, because it was not correct
under the circumstances of the case to tell the jury that Miss
Cormier's testimony was not entitled to the same weight as
that of Mr. Kittel because negative in form though positive
in fact, since the jury might well be of the opinion, independ-
ent of the diaracter of the evidence as to being positive or
negative, that the witnesses were not equally credible, and
whether they were or not was clearly for the jury. Anderson
V, HorUcJc's M. M. Co. 137 Wis. 569, 575, 119 K W. 342;
Van Salvellergh v. Oreen Bay T, Co, 132 Wis. 166, 111 N.
W. 1120; Jones, Ev. (2d ed.) § 898 (901); 17 Cyc 801.
We see no escape from the conclusion that the jury must have
been prejudiced by the errors committed in the charge; there-
fore the judgment must be reversed.
By the Court. — The judgment of the court below is re-
versed, and the cause remanded for a new triaL
Day, Respondent, vs. Egebtsen and wife, Appellants.
October 28—Novemher 12, 1909.
Vendor and pwrchmer of land: Boundaries: Area: False representa-
tions: Rescission.
1. In an action by the vendor for specific performance of a land con-
tract» findings as to the true location of a quarter-post as estab-
lished By the original government survey, and that the true
boundaries of the tract sold were pointed out by the vendor to
the vendee, are held to be sustained by the evidence.
2. A mere representation by description in a land contract that the
land is half of a certain designated quarter-section cannot in
an action for deceit or for rescission be held to be a represen-
tation that It contains eighty acres.
3. Designation of a tract of land in conversation between the vendor
and vendee as "the east eightjr'* of a certain quarter-section was
not in this case intended or understood as a representation of
quantity or area, but was merely a short way of referring to
the government subdivision.
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630 SUPKEME COUET OF WISCONSIN. [Nov.
Day V. Egertsen, 140 Wis. 629.
Appeal from a judgment of the circuit court for Rusk
county : John K. Pabish, Circuit Judge. Affirmed.
Charles Kirwa/n and Arthur E. Coe, for the appellants,
cited, among other cases, Zunker v. Kuehn, 113 Wis. 421,
88 N. W. 605; Bird v. Kleiner, 41 Wis. 134; Beyer v. 8L
Paid F. iSc M. Ins. Co. 112 Wis. 138, 88 N. W. 57; Coiz-
liausen v. Simon, 47 Wis. 103, 1 N. W. 473 ; Castenholz v.
Heller, 82 Wis. 30, 51 N. W. 432 ; Kaiser v. Nwmnerdor,
120 Wis. 234, 97 N. W. 932 ; Comhs v. Scott, 76 Wis. 662,
45 N. W. 532; Park v. M., St. P. & S. S. M. B. Co. 114
Wis. 347, 89 N. W. 532 ; Ludington v. Patton, 111 Wis. 208,
86 N. W. 571 ; Oates v. Parmly, 93 Wis. 294, 66 N. W. 253,
67 N. W. 739.
W. H. Stafford and Glenn H. Williams, for the respondent,
cited, besides other authorities, Bailey v. Costello, 94 Wis. 87,
68 N. W. 6e3;Ingcrsoll v. Seatoft, 111 Wis. 461, 87 N. W.
460 ; Bice v. Jerenson, 54 Wis. 248, 11 N. W. 549 ; Harrigan
V. OUchrist, 121 Wis. 127, 99 N. W. 909 ; Fleischfresser v.
Schmidt, 41 Wis. 223; Neff v. Paddock, 26 Wis. 546; GU-
man v. Brovm, 115 Wis. 1, 91 N. W. 227 ; Standard Mfg. Co.
V. Slot, 121 Wis. 14, 98 N. W. 923 ; Peterson v. Chase, US
Wis. 239, 91 N. W. 687; Shawano v. Cayouette, 134 Wis. 31,
114 N. W. 93 ; My Laundry^ Co. v. Schmeling, 129 Wis. 597,
109 N. W. 540.
Timlin, J. This is a suit for specific performance brought
by the vendor in a land contract against the vendee and wife.
The land was described in the contract as the east half of the
southwest quarter of section 35, town 35, range 8 west, and
not otherwise. This action was defended upon the ground,
as stated in the answer and counterclaims, that the vendor
falsely and fraudulently represented and pointed out certain
fences as marking the east and the west boundary lines of the
tract sold, when in truth such east and west boundary lines
were each twenty-nine rods further east than the said fences
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12]
AUGUST TEEM, 1909.
631
Day V. Egerteen, 140 Wis. 629.
at the south end and about the same distance east of said fences
at the north end of the tract in question. The land which lies
between the true western boundary line of the land described
in the land contract and the fence pointed out consists of
about twenty-nine acres of good first-dass cleared plow land,
and the land which lies between the true eastern boundary
line of the tract described in the land contract and the east
fence is about twenty-nine acres of flat^ swampy, and unim-
8ECTI0N 86, TOWN 86, RA.NGE 8.
I
i
!
I
i
a,
,Jm
T
-■'•r
I
The above diagram is copied from that annexed to the findings of the
trial court The quarter-post was found to have been established at the
point A. The eastern and western boundaries of the land in question are
represented by the lines AD and BC.~ Rep
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632 SUPREME COURT OF WISCONSIN. [Nov.
Day V. Egerteen, 140 Wia. 629.
proved land. The first-mentioned twenty-nine acres is in the
possession of William Topp, who claims by warranty deed
under the plaintiff, and the secc«id twenty-nine acres is held
and claimed and inclosed by one John Tymon, who claims to
be the owner thereof.
This defense, properly \mderstood, avers no shortage in the
quantity of land agreed to be conveyed. If the west fence was
twenty-nine rods west of the true west boundary and the east
fence twenty-nine rods west of the true east boundary, the
tract inclosed by the fences would be exactly equal in area to
the tract inclosed by the true boundaries, although not identi-
cal in location on the ground, and of course, if the true bound-
ary on the west is twenty-nine rods east of the west fence and
the true botmdary on the east is twenty-nine rods east of the
east fence, the tract inclosed by the true boundaries is exactly
equal to the tract inclosed by the fences. No discrepancy in
the north and south extension of the land is claimed. Not-
withstanding this, it seems to have been taken for granted at
the trial that there was some difference in area between what
the defendant considered the true boundaries and the tract
inclosed by the fences. The court found, among other things,
"that plaintiff made no misrepresentations as to the quantity
of land, that the boundary lines of said land were correctly
represented to said defendant L<wst S. J. Egertsen by the
plaintiff, and the east and west lines are substantially as indi-
cated by the fences then on such sides, and the south quarter-
post of said section was duly established where the original
government survey located and established it upon the ground
and as originally designated upon the ground by original
landmarks of the survey and location of said quarter-post, and
is at a point in the highway indicated by an iron peavy socket
sunk in the ground near the center of the highway, southerly
from the southeast corner of said fence, said fence and the
southeast comer thereof being located near the northerly mar-
gin of said highway.'*
He annexed a diagram to his findings, representing the
boundaries of the land in question by red lines lettered as
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12] AUGUST TERM, 1909. 633
Day V. Egertsen, 140 Wis. 629.
there indicated. This represents the land described in the
land contract as subdivided agreeably to the south quarter-
post of section 35, and it is conceded that the land thus de-
scribed in the findings lacks about ten acres of the usual
eighty-acre content
From the foregoing it will be seen that the defendants were
defeated because it was found that the true boundaries of the
tract sold were pointed out or represented by the vendor ; that
is to say, conforming substantially to the fences then existing
on the east and on the west sides. There is much evidence to
support this finding of fact, and it is an infleidble rule of this
court to refuse to disturb findings so made. It would serve
no good purpose to discuss this evidence in detail. It is suffi-
cient to say that witnesses were produced who professed to
have seen and to know the location of the original govern-
ment bearing trees for this south quarter-post, and from this
they located the quarter-post as found by the court The
quarter-post as located by some former survey conforming in
location to these bearing trees was also testified to. The loca-
tion of this quarter-post determined the boundaries and con-
tent of the land in question. Pickett v. Nelson, 79 Wis. 9, 47
K W. 936; Lampe v. Kennedy, 49 Wis. 601, 6 K W. 311 ;
Vroman v. Dewey, 23 Wis. 530. Of course it is possible that
these witnesses might be mistaken or might be wrong, but the
same weakness inheres in aU oral testimony.
The defendant offered evidence tending to show that the
quarter-post was placed, or was lost and should be re-estab-
lished, at a different point, and if so established the repre-
sentations of the plaintiff as to the boundaries of the tract in
question would have been untrue. But the court found with
the plaintiff, and that finding, supported by evidence, is con-
clusive upon us. The appellant contends further that it was
represented by the plaintiff that the tract in question con-
tained eighty acres of land, and that it is conceded and found
that there were only about seventy acres in the tract But no
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634 SUPKEME COUKT OF WISCONSIN. [Nov.
State ex rel. Williams v. Sawyer County, 140 Wis. 634.
such defense is pleaded. It is contrary to the pleading of de-
fendant A mere representation by description in a written
instrument that the land is half of a certain designated quar-
ter-section cannot in an action for deceit or for rescission be
held to be a representation that it contains eighty acres of
land. It is well known by those familiar with government
surveys that the contrary is often true. Besides, the trial
court foimd that, while this tract was designated in conversa-
tion between vendor and vendee as "the east eighty," this was
not intended or understood as a representation of quantity or
area, but as a mere short way of referring to the government
subdivision. We find no reversible error.
By the Court. — Judgment aflSrmed.
State ex eel. Wiixiams, Respondent, vs. Sawyee County
and another, Appellants.
October t8— November 12, 1909.
Constitutional lato: Legislative power: Delegation to municipalities:
Statutes: Partial in validity: Special municipal courts: Powers
of county hoard: Adoption of generaX law: Separate resolution,
iohen necessary: Mandatory statute: Rescission of resolutions,
1. In matters purely local and municipal, the legislature may enact
a conditional law and refer it to the people or proper municipal
authorities to decide whether such law shall or shall not have
force and effect in their respective municipalities.
2. Such a law must be a complete enactment in itself; and the only
thing that may be left to the people to determine is whether
they will avaH themselves of its provisions.
3. Where parts of a statute are valid and capable of being executed
independently of other parts which are invalid, the valid parts
may become operative unless the court can say that the legisla-
ture intended that all the provisions should be carried into ef-
fect as a whole and as conditions and compensations for each
other.
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12] AUGUST TERM, 1909. 63S
State ex rel. Williams v. Sawyer County, 140 Wis. 634.
4. Ch. 651, Laws of 1907, creates and establishes in each county "one
or more courts, as may be provided for," to be known as special
municipal courts, and provides (sec. 2523 — 2) that the county
board of any county may adopt the act by resolution, and upon
such adoption may, "in like manner and upon a like vote, pro-
vide for a special municipal court or courts," etc. Heldj that
- the act is void under sec. 2, art. VII, Const., so far as it at-
tempts to delegate to the county board power to decide upon
the number of courts to be established in the county, but is
valid to the extent of creating and establishing one municipal
court in each county (at least in such counties as had no mu-
nicipal court when the act was passed), and to such extent
only does it become operative when adopted in the manner
therein provided.
5. Certain administrative, and perhaps other, functions may prop-
erly be conferred by such a general law upon the county board
to enable it to execute and carry into effect the law when
adopted, as the providing of an office for the Judge, determining
his salary and the places where he shall hold court, and the like.
6. The requirement In sec. 2523 — 2, Stats. (Laws of 1907, ch. 651),
that the law shall be adopted by resolution before any action
shall be taken by the county board to provide for the court, is
mandatory; and where a county board attempted in a single
resolution to adopt the law and make i^rovision for a court
thereunder, the latter part of the resolution, at least, was void.
7. Whether, in such case, so much of the resolution as adopted the
law was valid, not determined. If valid It cannot be rescinded
by subsequent action of the county board, at least in the absence
of express legislative authority so to do; but so much of the
resolution as was void could properly be rescinded.
Appeal from a judgment of the circuit court for Sawyer
county : John K. Pabish, Circuit Judge. Reversed.
This was a certiorari proceeding brought to review the ac-
tion of the county board of Sawyer county in rescinding a
former resolution passed by it adopting the provisions of
ch. 651, Laws of 1907. By a single resolution adopted by
the county board at a meeting held on March 4tli the provi-
sions of ch. 651, Laws of 1907, were adopted and a special
mimicipal court for said county was created. The resolution
fixed the place at which the. judge of such court should hold
his office, and provided for court accommodations, an official
seal, necessary records and stationery, and for blanka, fumi-
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636 SUPREME COURT OF WISCOXSIX. [Nov.
State ex rel. Williams v. Sawyer County, 140 Wis. 634.
ture, fuel, and lighting. By such resolution the county clerk
was instructed to give the requisite notice that such judge
would be elected on the first Tuesday in April, 1908. The
salary of such oflScer was fixed at $900 per year. After the
passage of such resolution the relator became a candidate for
the office of municipal judge, and secured the necessary num-
ber of signers to have his name placed on the official ballot,
and it was so placed, and he was elected on the first Tuesday
in April, 1908. In the meantime, and on April 2d, a special
meeting of the county board of Sawyer county was called, at
which meeting a resolution was passed rescinding the resolu-
tion adopted on March 4th. The validity of the resolution
last passed is attacked in this proceeding. By its judgment
the court annulled such resolution and declared it to be void
and of no effect From such judgment this appeal is taken.
F. L. McNamara, for the appellants.
Horace B. Walmsley, for the respondent.
Babneb, J. "In matters purely local and municipal, the
legislature may enact conditional laws, and refer it to the
people or proper mimicipal authorities to decide whether such
laws shall or shall not have force and effect in their respective
municipalities.^' Slinger v. Hermeman, 38 Wis. 610. Such
a law must be a complete enactment in itself. It must con-
tain an entire and perfect declaration of the legislative will,
and it must require nothing to perfect it as a law. The only
thing that may be left to the people to determine is whether
they will avail themselves of its provisions. State ex rel.
Att'y Gen. v. O'NeUh 24 Wis. 149, 153 ; Bowling r. Lan-
cashire Ins. Co. 92 Wis. 63, 69, 65 N. W. 738 ; In re NoHh
Mitwavkee, 93 Wis. 616, 620, 67 K W. 1033 ; Adams v. Be-
loU, 105 Wis. 363, 369, 81 N. W. 869.
"The legislature cannot delegate its power to make a law,
but it can make a law to delegate a power to determine some
fact or state of things upon which the law makes, or intends
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12] AUGUST TERM, 1909. 637
State ex rel. Williams v. Sawyer County, 140 AVis. 634.
to make, its own action to depend." Dotding v. Lancashire
Ins, Co., supra, at p. 69 ; Adanis v. Beloit, supra, at p. 369 ;
Minneapolis, St P. & 8. S. M, R. Co. v. Railroad Commis-
sion, 136 Wis. 146, 116 N. W. 905.
Tested by these principles, can ch. 651, Laws of 1907, be
sustained as a valid enactment in its entirety? While the
ease under consideration might be disposed of without point-
ing outthe infirmities of the law, it was thought best to do so
in order to prevent illegal courts from being established there-
under and to avoid the confusion that might arise from the
trial of causes and the rendition of judgments by unconstitu-
tional courts. Sec. 2523 — 1 of the law in question provides:
"There is hereby created and established in each county of
this state one 'or more courts, as may be provided for, to be
known and designated as special municipal courts and with
the powers and jurisdiction as hereafter provided."
Sec. 2523 — 2 providee that the board of supervisors of
any county may, by a majority vote of all its members elect,
adopt the act by resolution, and upon such adoption may, "in
like manner and upon a like vote, provide for a special mu-
nicipal court or courts as herein provided, to be known and
designated as the First (or other numerical designation)
Special Municipal Court of County."
Can the legislature vest in a county board the power to say
when and how many municipal courts may be established in
a given county ? Does not the power attempted to be given
cx)nfer upon the county board something more than the mere
right to adopt the provisions of the law ? Does it not in fact
confer upon such board the power to legislate new courts into
existence ? If the law in its entirety can be upheld, it is the
duty of the court to uphold it. If the entire act cannot be sus-
tained, it is the duty of the court to sustain the valid portion
of it, if it can do so without violating established principles
of law. It is well settled that an act may be unconstitutional
in some of its provisions and valid in others. Where parts
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«38 SUPREME COURT OF WISCONSIN [Nov.
State ex rel. Williams v. Sawyer County, 140 Wis. 634.
of a statute are valid and capable of being executed independ-
ently of other parts which are invalid, the valid parts may
become operative unless the court can say that the legislature
intended that they should all be carried into effect aa a whole
and as conditions and compensations for each other. Lynch
V. Steamer Economy, 27 Wis. 69; State ex reL Walsh v.
DouswAn, 28 Wis. 541 ; Slmison v. Racine, 13 Wis. 398, 404.
Sec 22, art lY, Const, empowers the legislature to confer
on the boards of supervisors of the several coimties of the state
such powers of a local, legislative, or administrative character
aa they shall from time to time prescribe. But by sec* 2,
art VII, Const, the power to create and establish such courts
as are provided for by ch. 651, Laws of 1907, is exclusively
vested in the legislature and must be exercised by it We do
not doubt that a valid option law may be passed providing for
the creation of municipal courts. But such a law must be
complete and perfect in itself, and must become operative
upon a vote which simply adopts its terms. Discretion to say
what the law shall be after it is adopted, or to what extent it
shall be applicable, may not be conferred on the people of a
county or on its board of supervisors. It is here left to the
discretion of the county board to say whether there shall be
two or more courts in a given county. This is a legislative
function which we hold cannot be delegated. The board is
given not only the option to adopt the law, but the further
option to decide upon the number of courts that may be estab-
lished under it This cannot be done. People ex reV Bolt v,
Riordan, 73 Mich. 508, 41 K W. 482 ; Puehlo Go. Comnirs
V. Smith, 22 Colo. 534, 45 Pac 357, 33 L. E. A. 465; State
V. Nine Justices, 90 Tenn. 722, 18 S. W. 393.
As we view the law, it does create and establish one munici-
pal court in each county of the state, or at least in such
coimties as had no municipal court when the act was passed.
When a county board votes to adopt its provisions, the law
creating the single court becomes effective. Certain adminis-
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12] AUGUST TERM, 1909. 639
State ex rel. Williama v. Sawyer County, 140 Wis. 634.
trative and perhaps other functions are properly conferred
on the county board to enable it to execute and carry the law
into effect, such as providing an office for the judge and deter-
mining his salary and the places where he shall hold court,
and the like. These functions could be conferred on the
county board of Sawyer county in a special act creating a
municipal court for that county, and we have no doubt can be
conferred under a general law. Ryan ir. Outagamie Co. 80,
Wis. 336, 50 N. W. 340; Wentworth v. Racine Co. 99 Wis.
26, 74 N. W. 551; Bartlett v. Eau Claire Co. 112 Wis. 237,
88 N. W. 61. But functions such as these are wide apart
from authority to create or legislate a court into existence in
the first instance.
No substantial reason occurs to us why the valid portion of
this law should not be upheld. Th.e l^slature had the laud-
able purpose in mind of passing one general act applicable to
the entire state in lieu of enacting a multitude of special acts
limited in their application to a single county. The valid
portion of the law vnll no doubt fulfil the requirements of
most of the counties of the state, and it is not apparent how
the void portion was any condition or compensation for the
passage of the valid part We conclude, therefore, that the
act is valid to the extent of creating and establishing one mu-
nicipal court in ^ch coimty of the state, and that to such ex-
tent only does it become operative when adopted in the man-
ner therein provided.
The county board by a single resolution adopted the pro-
visions of ch. 651, Laws of 1907, provided for the establish-
ment of a single municipal courts fixed the salary of the mu-
nicipal judge, designated the places where court should be
held, provided for office accommodations, provided that no-
tice of election should be given, and provided for various
other matters pertaining to such court Manifestly the plain
mandate of the statute was violated by the adoption of such a
resolution. The law required that the board should first
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640 SUPEEME COURT OF WISCOJfSIN. [Nov.
State ex rel. Williams v. Sawyer County, 140 Wis. 634.
adopt its provisions by resolution, and that thereafter an-
other resolution, separate and distinct from the first, might
be adopted providing for one or more courts as the board
might determine, and also that the board should determine
the place or places where court should be held, and make
other necessary provisions to put the law in working .opera-
tion. Until the law was adopted there was no court to pro-
vide for. The legislature had the undoubted right to provide
that the law should be adopted before any proceeding should
be taken under it, and it has so provided. And it is the opin-
ion of the court that such provision is not merely directory,
but is mandatory, and that any action taken towards estab-
lishing, the court before the resolution was passed accepting
and adopting the provisions of the law was premature and
without jurisdiction and therefore void. It is true that na
particular interim need elapse between the passage of the
resolution adopting the law and the subsequent resolution de-
signed to carry the law into effect, and that the presumption
is very strong that, if two resolutions had been offered in-
stead of one, both would have been passed. It was entirely
reasonable, however, for the legislature to provide that the
matter of adopting the law should be voted upon as a sepa-
rate and distinct proposition. It was also a proper and or^
derly requirement that the resolution passed for the purpose
of carrying the law into effect should be voted upon as a
separate and distinct proposition, and not be voted upon imtil
there was some law in force which warranted the passage of
such resolution. The cases generally hold that propositions
submitted to electors must be submitted singly bo as to give
the elector an opportunity to record his vote on each separate
and distinct proposition submitted. McBryde v. Montesano,
7 Wash. 69, 34 Pac 659; Truelsen v. Duluth, 61 Minn. 48,
63 K W. 714; Fulton Co. v. M. <6 W. B. Co. 21 HI. 338;
People ex rel Peoria & 0. B. Co. v. Tazewell Co. 22 HI. 147,
156.
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12] AUGUST TEEM, 1909. 641
State ex rel. Williams v. Sawyer County, 140 Wis. 634.
While the present case is not entirely analogous to those
cited, in that a member of the coimty board would have the
right to demand that the resolution offered be divided, and no
such demand appears to have been made here, still the prin-
ciple is a wholesome one even as applied to bodies like county
boards. We do not think the board could ignore the plain
provisions of the statute in this regard, and, it having done
80, we conclude that so much of the resolution as provided for
the creation of the court was void.
If the law had been properly adopted and the proper reso-
lution had been passed treating the courts it would be beyond
the power of a county board by subsequent resolution to re-
scind its action, at least in the absence of express legislative
authority so to do. To hold otherwise would be equivalent to
saying that it might repeal a law of the legislature of the
state which had become operative in the particular county.
NoHhem T. Co. v. Snyder, 113 Wis. 616, 533, 89 N. W.
460.
It is argued that the only proceeding attacked is the resolu-
tion of the county board of April 2d rescinding its former
action, and that if the law was adopted in a legal way then it
was beyond the power of the board to undo what had been
done, and, if not, no injury resulted from reversing the action
of the county board in passing a resolution which served no
useful purpose. We think it was proper for the board to ex-
punge from its records, in so far as it could, the former reso-
lution passed by it> which was at least void in part We do
not hold that so much of the resolution of March 2d as
adopted the provisions of the act in question may not be
valid; and, if valid, it could not be repealed by the action
subsequently taken. It was proper, however, to rescind so
much of the resolution as we hold to be void for the reasons
herein stated.
By the Court. — Judgment reversed, and cause remanded
with directions to dismiss the proceedings.
Vol. 140 — 41
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642 SUPKEME COURT OF WISCONSIN. [Nov.
Ashland v. Maciejewski, 140 Wis. 642.
City of Ashlakd, Appellant, vs. Macie jewski, Eespond^it
October 28—Novemher 12, 1909.
Btatutes: ConBtruction: Changing words.
1. Where the words of a statute are plain in meaning and lead to no
absurd result there is neither room for construction nor justifi-
cation for the elimination or change of words.
2. Thus, in a city charter providing that "no city officer shall be
accepted as surety upon any bond, contract or other obligation
made hy the city/' the courts cannot substitute the word "to"
in place of the word "by," the provision as enacted not being
absurd.
[3. Whether the words "bond, contract or other obligaticm" could be
construed aa applying to a recognizance given on appeal from a
municipal court, not determined.]
Appeal from a judgment of the circuit court for Ashland
county: John K. Pabish, Circuit Judge. Affti-med.
The cause was submitted for the appellant on the brief of
W. S. Cate, attorney, and F. J. Colignon, of counsel, and for
the respondent on that oiA.P. Haagenson., attorney, and 8anr
bom, Lamoreux & Tray, of counseL
WiNSLow, C. J. The respondent was convicted of the
violation of a mimicipal ordinance in the municipal court for
Ashland coimty and appealed to the circuit court, the reco^
nizance upon the appeal being signed by one Erickson (a city
officer) as surety. The judgment of conviction was, after
trial, reversed in the circuit courts and the city appeals to
this court The only contention made by the city is that the
recognizance was void, and hence that the circuit court ac-
quired no jurisdiction of the case.
Sec* 5 of subch. XXI of appellant^s charter (ch. 27, Laws
of 1889) contains this provision: "No city officer shall be ac-
cepted as surety on any bond, contract or other obligation
made by the city.^* It is contended that the insertion of the
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12] AUGUST TERM, 1909. 643
Matzewitz v. Wis. Cent. R. Co. 140 Wis. 643.
word "by*' in this sentence is a palpable error, and that the
court should in effect insert the word "to" in its place, and
apply the provision as so amended to the recognizance. This
we cannot do. When the words of a l^slative act are plain
in meaning and lead to no absurd result, there is neither
room for construction nor justification for the elimination or
diange of words. Courts cannot legislate. Their business
is only to enforce a plain statute as it reads, providing it be
not unconstitutional or absurd upon its face. OUbert v. Du-
truit, 91 Wis. 661, 65 N. W. 511; Bossmiller v. State, 114
Wis. 169, 89 N. W. 839. The provision that a city officer
shall not become a surety on any bond, contract, or obligation
given by the city is not absurd, even though its necessity or
wisdom may be open to doubt
It may be a grave question whether the words "bond, con-
tract or other obligation" can properly be construed to apply
to a recognizance such as the present, but our conclusion on
the first proposition renders it unnecessary to consider this
question.
By the Covrt. — Judgment affirmed.
Matzewitz, Respondent^ vs. Wisconsin Central Railway
CoMPANT, Appellant
October 28— November it, 1909,
Railroads: LiaWity to laborers for contractors: Notice of citaim, upon
v>hom served: Assignment of claim: Real party in interest.
1. Sec. 1815, Stats. (1898), — ^providing that a laborer to whom a con-
tractor for the construction of a railroad shall be indebted for
labor performed in such construction may make the railroad
company directly liable by serving notice of his claim upon "an
engineer, agent or superintendent" in the employment of the
company, "having charge of that part of the road on which such
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644 SUPREME COURT OF WISCONSIN. [Nov.
Matzewitz v. Wis. Cent R. Co. 140 Wis. 643.
labor was performed,"— does not require the notice to be served
upon the particular employee In charge of the construction work
on that part of the road; the Intention being that service should
be made upon an employee who would be likely promptly to
bring home to the company knowledge of the existence of the
claim, rather than upon one who would know whether the claim
was legitimate or not.
2. Delivery by the laborer of his time check to another person for
collection, writing his name on the back thereof as evidence of
the authority, and borrowing a small sum from such person on
the claim, did not constitute such a transfer of title as took the
claim out of the protection of the statute.
3. The creation of such a mere agency, though coupled with an in-
terest, to collect the claim for the benefit of the laborer, did not
make the agent the real party In interest who must be plaintilT
in an action to enforce the claim.
Appeal from a judgment of the circuit court for Ashland
county: John K. Paeish, Circuit Judge. Affirmed.
Action to enforce a laborer's claim under sec, 1815, Stats-
(1898).
The issues raised by the pleadings were closed by these con-
clusions: In 1907 the defendant was engaged in railroad con-
struction in Douglas county, Wisconsin, under a principal
contractor, one Balch, and his subcontractor, Philbrook.
The duties of the latter were, in part, to look after the camps^
hire and discharge men, keep their accounts, board them, di-
rect them as to their work, and give statements of the amounts
due for their work in excess of offsets. Prior to August 8,
1907, Balch employed plaintiff to work (constructing the road
at $2 per day, pursuant to which the latter did nineteen and
one-half days^ grading work between stations 562 and 604.
The work commenced August 8 and lasted, continuously, till
August 29, 1907. The amount due and unpaid therefor is
$25.73. At the termination of the work, plaintiff was given
by Philbrook, in his representative capacity, a statement of
his time, specifying the wages per day, part of the road on
which his labor was performed, balance due over all offsets, and
the time when such balance was payable, the due date being
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J 2] AUGUST TERM, 1909. 645
Matzewitz v. Wis. Cent. R. Co. 140 Wis. 643.
September 29, 1907. August 30, 1907, plaintiff employed
one Sever to collect his claim. To facilitate the collection,
and for no other purpose, plaintiff wrote his name upon tiio
back of his statement, and delivered it to Sever, the latter
loaning thereon $5.73, under an agreement for repayment
out of the proceeds of the collection. Within thirty days
after the due date of the claim, plaintiff, by his attorney,
served defendant with a notice in writing, signed by such at-
torney, stating the facts aforesaid and claiming the benefit of
sec 1815, Stats. (1898). The notice was served on one
•Gillis, who was then, and when the work was done, the agents
engineer, and superintendent of the road in charge of that
part upon which the work was done. He was a proper per-
son upon whom to make the service and he, promptly, sent the
notice to his principal at its headquarters. The service was
within the thirty days after the due date of the claim, and
suit was commenced within sixty days after the service.
On such facts, judgment was ordered in plaintiff's favor
and was rendered accordingly.
For the appellant there was a brief by Luse, PoweU &
Luse, and oral argument by L. K. Luse. They contended,
inter alia, that the assignment by plaintiff of his claim de-
stroyed his right to a lien. Hichoh v. Lavbssier, 1 Morris
{Iowa) 115; Weirick v. Mahoning Co. Bank, 16 Ohio St
297; Seymour v. Van Slych, 8 Wend. 403, 422; Ford v.
Mitchell, 15 Wis. 304, 308; 4 Cyc 44; Chapman v. Plwmr
mer, 36 Wis. 262, 265 ; Wooliscroft v. Norton, 15 Wis. 198 ;
Tewksbvry v. Bronson, 48 Wis. 581 ; Shearer v. Browne, 102
Wis. 585, 587 ; Frdker v. Reeve, 36 Wis. 85 ; Cummings v.
Morris, 25 N. Y. 625 ; Chase v. Dodge, 11 Wis. 70, 72. The
assignment must be construed to be at least an assignment to
secure Sever for his payment of $5.73, and that he was to col-
lect and receive the whole claim. The holder of a chose in
action as collateral security is the real party in interest and
must bring the action, and the assignor for security may not
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646 SUPKEME COURT OF WISCONSIN. [Nov.
Mateewite v. Wis, Cent B. Co. 140 Wis. 643.
EUton V. Wwrmg, 7 Wis. 492 ; Gvrtis v. Mohr, 18 Wis. 615 ;
Morgan v. Sovih Milwaukee L. V. Co. 97 Wis. 275, 277.
And this rule applies as well to nonnegotiable instruments as
to negotiable. Archibald v. Mut, L, Ins. Co. 38 Wis. 642.
For the respondent the canse was submitted on the brief of
D. E. Roberts and Michael S. Bright, attorneys, and Walter
8. Whiton, of counseL
Marshall, J. Was the person upon whom the notice was
served the defendant's engineer, agent, or superintendent, in
its employment, having charge of that part of the road on
which the labor was performed ? It is contended for appel-
lant, that the finding in the affirmative is contrary to the clear
preponderance of the evidence, because the statute contem-
plates that the person upon whom service is required to bo
made shall be the particular employee, in such charge of the
work fis to be likely to know the facts in r^ai^d to the claim.
We can see no good reason for restricting the plain mean-
ing of the statute by construction. It means, doubtless, just
what the ordinary sense of the words signifies. The person
upon whom the service must be made, in any such case, is the
one who, as engineer, agent, or superintendent for the rail-
road company, has charge of that part of the road on vdiich
the labor was performed. It is the one who has such general
charge, whatever may be his designation.
Had the legislature intended the service to be made upon
the employee in the immediate charge of the construction
work, it would have said, in charge of the work instead of ''of
the road.'' The purpose, doubtless, was to require the service
to be made upon an employee of such grade as to be likely to
promptly bring home to the corporation knowledge of the ex-
istence of the claim, rather than upon one sufficiently in touch
with the particular work as to know whether the claim was
legitimate or not Such purpose was not, merely, to enable
the particular person, primarily receiving the notice, to report
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12] AUGUST TERM, 1909. 647
Matzewitz v. Wis. Cent R. Co. 140 Wia. 643.
the facts, but to reach the corporation and give it reasonable
opportunity to protect itself against a double liability whidi
would result by paying the contractor and then having to pay
over again to the laborer.
That the person upon whom the notice was served in this
case had general authority over that part of the road contem-
plated by the statute, requisite to competency to receive the
service, is amply shown by the evidence.
The claim that the statute should be construed as requiring
a notice to be served on the person in the immediate charge
"of the construction" of that part of thp road in regard to
which the labor was performed, when it relates to such con-
struction work, is effectually negatived by the fact that,
whereas, formerly, for a long period of time, service, in such
cases, was required to be made on the person "in charge of the
construction work," the statute was changed to its present
form so as to require it to be made on th,e person "in charge
of that part of the road" on whidi the labor was performed,
thus pointing to a person higher up in grade than the one in
the immediate charge of construction work.
It is considered that the circumstances, amply shown by
the evidence, that the plaintiff merely delivered his claim to a
person for collection, writing his name on the back thereof aa
evidence of the authority, and borrowing a small sum on such
claim, warranted the conclusion that there was no parting
with the title so as to take the claim out of the protection of •
the statute, under the doctrine of FraJcer v. Reeve, 36 Wis.
85, and similar authorities, to the effect that the special statu-
tory provisions for the protection of creditors in particular
cases, such as this, do not follow the creditor right into the
hands of a purchaser. That does not apply where there is
no parting with title to the right by the original creditor, but
only the creation of a mere agency, coupled with an interest,
to enforce such right, in general, for the benefit of the cred-
itor, as held in Bernhardt v. Rice, 98 Wis. 578, 74 N. W.
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648 SUPREME COtJET OF WISCONSIN. [Nov.
Bouchier v. Hammer, 140 Wis. 648.
870. The logic of that case is that a transfer of a daim
which does not pass the beneficial interest is not a sale and
so is not an attempt to transfer a lien or a claim with a lien
incident
True, a statutory lien incident to a contractual claim, un-
less made so by the statute^ is not transitory in the sense of
being assignable, but, so long as there is no transition of the
beneficial interest, there is no severance from the claim, or
loss, of the lien incident
Coimsel refer to the rule that he who takes the title to a
diose in action as security holds the legal title and, ordi-
narily, in judicial proceedings to enforce it, is the person
who must be the plaintiff as the real party in interest; but
we must distinguish between a transfer of title carrying the
beneficial interest, primarily, though secondarily operating to
discharge a debt of the vendor, as in Fraker v. Reeve, supra,
and the mere creation of an agency to collect and apply or ac-
count for the proceeds, as in BemJuurdt v. Bice, supra, and
this case.
By the Court. — Judgment affirmed.
BouoHiEB, Eeepondent, vs. Hammeb, Appellant
October 28—Novemher IZ, 1909.
Tax titles: Notices of tax sale: Posting and publication: AjBMavits:
Sufficiency: ^'Public place:" Nonoccupancv: Rights under suc-
cessive tax deeds: Appeal: Briefs.
1. If the afRdavit of the posting of notices of a tax sale declares con-
duct of the treasurer in the posting which complies with the
statute, the yalidlty of that step in the proceedings is estab-
lished prima fade. A statement therein that the notices were
posted in four public places, accompanied by a specification of
places not inherently non-public, is such evidence as, undis-
puted, establishes the fact required by sec 1130, Stata (1898).
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12] AUGUST TERM, 1909. . 649
Boachier v. Hammer, 140 Wis. 648.
2. The term "public place" In sec. 1130, Stats. (1898), means a place
where the public resort, so that the posting of a statement there
is likely to give notice.
3. An affidavit stating that the place In the county treasurer's office
at which one of the notices was posted was a conspicuous place,
satisfies the statute, and It Is not necessary to define with par-
ticularity the exact spot in that office upon which such notice
was posted.
4. A printer's affidavit stating that the notice of a tax sale which
took place on May 17 was printed and published In a certain
newspaper "once In each week for four successive weeks, com-
mencing on the l&th of April and terminating on the 6th of
May," shows a publication once In each week for four successive
weeks prior to the date of sale, as required by sec. 1130, Stats.
(1898), although the printing terminated in twenty-two days.
5. An affidavit of nonoccupancy, made five days before the tax deed
was issued, which declared both that at the time it was made.
May 16, there had not been thirty days of continuous actual oc-
cupancy, and that on that day there was no occupancy, estab-
lishes the fact that there could not have been the thirty con-
secutive dasrs' occupancy within the meaning of sea 1175, Stats.
(1898), on May 21, the date of the deed.
*6. Upon appeal Infirmities claimed to exist in affidavits made in tax
proceedings should be pointed out by counsel. The court cannot
assume the duty of searching for them.
7. The holder of a tax certificate issued in 1902 who purchased the
land at the tax sales in 1903 and 1904 did not thereby pay the
taxes so as to prevent him from claiming title under either of
the tax deeds based on such sales.
Appeal from a judgment of the circuit court for Price
county : John K. Pabish, Circuit Judge. Reversed.
Plaintiff, concededly tbe original owner of certain lands in
Price county, brought ejectment against the defendant, who
set up title by three successive tax deeds based upon tax
sales in the years 1902, 1903, and 1904. The sole question
was the validity of those tax deeds. The evidence consisted
entirely of the record of the various tax sale and deed pro-
ceedings. Court fo\md all three deeds invalid by reason of
certain defects alleged to exist in the proceedings, and ren-
dered judgment for plaintiff, from which defendant appeals.
The cause was submitted for the appellant on the brief of
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650 SUPREME COURT OF WISCONSIN. [Nov.
Bouchier v. Hammer, 140 Wis. 648.
W. K. Pwrkinson, and for the respondent on that of Barry'
& Barry, attorneys, and K. K. Kenrum, of counseL
Dodge, J. As the defendant pleads title nnder each of
three distinct tax deeds, any one of them, if valid and based
upon legal and regular procedure, is suflScient to establish his
title and, therefore, his defense. Sea 1176, Stats. (1898).
For this reason we shall consider only the infirmities in the
deeds based upon tax sales of 1903 and 1904 and in the con-
duct of those sales.
1. The first ground of invalidity, and that common to both
sales, is the alleged insufficiency of the affidavits by the county
treasurer to posting of notices of the tax sale in compliance
with sec 1130, Stats. (1898), which requires that the treas-
urer shall cause copies of notice, etc, to be "posted in at least
four public places in such county, one of which copies shall
be posted up in some conspicuous place in his office;" also
that he shall file affidavit of such posting. The affidavit in
this case declkres that he
"posted up the copies of the annexed statement and notice in
five public places in said Price county, Wisconsin, to wit:
on April 18, 1904, one of which copies was posted in a con-
spicuous place in the office of said county treasurer in the
courthouse in the city of Phillips in said county ; one copy in
the office of the county derk in the courthouse in the city of
Phillips in said county ; one copy on the front of the building
known as the Turner House in the village of Park Falls, in
said county ; one copy on the front of the building known as
the Jump Kiver House in the village of Prentice, in said
county; one copy on the inner wall in the postoffice in the
town of Ogema in said county."
While it is intimated, if not in terms declared, in Jarvis
V. Silliman, 21 Wis. 599, and Hart v. Smith, 44 Wis. 213,
226, that an affidavit stating that sudi notices were "posted in
four public places in the county" satisfies this statute, an
affidavit directly to that effect was apparently held invalid,.
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12] AUGUST TERM, 1909. 651
Boucbier v. Hammer, 140 Wis. 648.
although without any debate and on concession of counsel, in
Wis. Cent. R. Co. v. Wis. River L. Co. 71 Wis. 94, 36 N. W.
837, although that decision is rendered indefinite and uncer-
tain upon the particular point because of other defects found
in the affidavit It is further decided in Hart v. Smith that
a mere description of the places without declaring them to be
public may be sufficient if the court can see from the descrip-
tion that they are of the character indicated by the words
"public places." The suggestion is made by the court that
the better method to satisfy the statute is to describe the
places and make affidavit to the fact that they are public. In
Hilgers v. Quinney, 61 Wis. 62, 8 N. W. 17, the places were
described, but were such as not necessarily to be public The
coffidavit was condenmed on the sole ground that the only al-
legation was that they were "public places in the city of
Chilton,'' which, said the court, would not necessarily make
them public places in and for the coimty ; the intimation be-
ing clear that had they been declared to be public places of
the county that would have sufficed. In Allen v. AUen, 114
Wis. 615, 91 N. W. 218, the several places were described as
at certain specified postoffices without declaring them to be
public places, and it was held sufficient In MyricJc v. KaJile,
120 Wis. 57, 97 N. W. 606, the latest case on the subject, the
affidavit was condemned because it described places which
might or might not be public and failed to declare that they
were public places, with th^ clear intimation that if such fact
had been declared in Jubc verba the statute would have been
satisfied. We think it obvious that the result of these de-
cisions, in light of the words of the statute, is to the effect
that if the affidavit on file declares conduct of the treasurer in
the posting which complies with the statute, the validity of
that step in the proceedings is established prima facie. It is
declared in several of the cases cited that the allegation that
a place of posting is a public place involves both a statement
of fact and a conclusion of law. But the expression "public
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«52 SUPREME COUET OF WISCONSIN. [Nov.
Bouchier v. Hammer, 140 Wis. 648.
place" is not occult. It is a part of the English language,
and the words are common and ordinary in usage, and that,
too, in their legal designation, nanuely, a place where the
public resort, so that tho exposure of such a document is
likely to give notice. The publicity of the place involves in
<;ommon statement quite as much, if not more, of the element
of fact as it does of legal conclusion. There is no good rea-
son why the assertion that the posting in four public places,
accompanied by a specification of places not inherently non-
public, is not such evidence as, undisputed, establishes the
fact required by sea 1130. If false, the specification of the
place supplies the opportunity to prove the falsity ; while the
absence of such specification is a good practical reason for re-
pudiating an affidavit which merely asserts them to be public,
because then a sate might be conducted in fraud of the stat-
ute and no opportunity exist years afterwards to prove the
fact We conclude that the posting, as established by the
treasurer's affidavit, duly filed, complies with sec. 1130.
Another criticism of this affidavit is that it merely declares
that the place in the county treasurer's office, at which one of
the copies was posted, was a conspicuous place. What we
have said with reference to the phrase "public place," and
the extent to which this upon its face must be considered a
statement of fact, applies quite as strongly here. We think
it was not necessary to go further and define with particu-
larity the exact spot in that office, whether upon the walls,
windows, doors, or furniture, such notice was posted.
2. Another defect asserted is that the printer's affidavit of
publication showed that the notices were published only three
weeks instead of four. The sale of 1903 took place on May
19th, that of 1904 on May 17th. The affidavit in each case
declared that the notice "was printed and published in such
newspaper once in each week for four successive weeks, com*
mencing on the 15th of April and terminating on the 6th of
May.'' Of course there is confusion of terms between the
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12] AUGUST TERM, 1909. 655
Bonchier v. Hammer, 140 Wis. 648.
aflSdavit and the statute. The latter requires that the notice
shall b© published once in each week for four successive weeks
prior to the day of the sale. This of course requires a
period of twenty-eight days of publication before the sale,
but tliat publication is accomplished by issue of the paper
containing the notice on four distinct days, one only in each
week; so "publication of notice" may apply to the term of
notice, but it may also apply to the physical fact of printing
the notice in a published newspaper, and clearly that is the
significance in which it is used in this affidavit, and indeed is
the meaning given to the expression by this court in Chip-
pewa River L. Co. v. J. L. Gates L. Co. 118 Wis. 345, 357,.
94 N. W. 37, 95 K W. 954. The joining with the word
"published" the word "printed'* in this affidavit emphasizes
and renders sure the meaning in the mind of the affiant. So
read, it establishes four printings, and the dates are entirely
consistent with that assertion ; May 6th being the day upon
which a weekly paper would be issued which also was issued
on the 16th of April. We think there is no ambiguity in this
affidavit, but that it declares that on four specific days in sep-
arate successive weeks this notice was printed, and that more
than one complete week after its last printing elapsed before
the day of sale, and that constitutes in law a publication for
four weeks, although the printing terminated in twenty-twa
days.
3. The deed upon the sale of 1903 is further assailed on
the groimd that the so-called affidavit of nonocenpancy was
sworn to five days before the deed issued. The affidavit de-
clared both that at the time it was made. May 16th, there had
not been thirty days of continuous actual occupancy, and that
on that day there was no occupancy. Such an affidavit neces-
sarily establishes the fact that there could not have been the
thirty consecutive days' occupancy within the meaning of the
statute on May 21st, the date of the deei This court has at
least twice so ruled. Dreutzer v. Smith, 56 Wis. 292, 302^
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654 SUPREME COURT OF WISCONSIN. [Nov.
Boiichier v. Hammer, 140 Wis. 018.
14 N. W. 465 ; Howe v. Oemn, 57 Wis. 268, 269, 15 N. W.
161.
4. It is asserted that the printer's affidavit as to the sale of
1904, in distinction from that of 1903, failed to state that the
newspaper was a legal newspaper under the description of
sec. 1130. We are unable to understand what respondent's
claim is. The affidavit of 1904 contains the same declaration
that the paper had been published in Price county for the
legal period as does the affidavit of 1903, differing only in
that it asserts its publication for a period of more than three
years instead of two. There is no material distinction be-
tween the two affidavits in this respect If there is any in-
firmity in that of 1904 it should have been pointed out We
cannot assume the duty of searching for it
5. It is further contended by respondent that appellant
cannot claim under either of the later deeds; that his pur-
chase at the sales in 1903 and 1904 after his purchase of the
tax certificate in ilay, 1902, must be deemed a payment of
those taxes. This contention, however, is negatived by Ly-
brand v. Han^y, 31 Wis. 230, and Patterson v. Cappon, 129
Wis. 439, 109 N. W. 103.
In conclusion : we find none of the alleged defects in either
of the deeds on the sales of 1903 or 1904 to exist, and must
therefore recognize those deeds as having all the effect con-
ferred by sec. 1176, Stats. (1898), to vest in the grantee, the
appellant^ an absolute estate in fee simple in said land, at
least as against the plaintiff.
By the Covrt, — Judgment reversed, and cause remanded
with directions to enter judgment for defendant
Barnes, J., dissents.
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12] AUGUST TERM, 1909. 655
Mathews v. Pufall, 140 Wis. 655.
Mathews and others, Eespondents, vs. Pufall and wif^
Appellants.
October SS—Novemher 12, 1909.
Pleading: Striking out frivolous answer.
In a foreclosure action the complaint alleged that a note and mort-
gage were executed by defendants to plaintiffs and that plaint-
ifts are now the lawful owners and holders thereof. The an-
swer admitted such execution but alleged that defendants "haye
not sufficient information or knowledge to enable them to form
a belief as to whether or not plaintiffs are the lawful owners
and holders of the note and mortgage, and therefore deny the
same." No fact was stated In the pleadings tending to show
that there had been any transfer or change In the ownership
of the note and mortgage. Held, that the answer was properly
stricken out as evasive and frivolous.
Appeal from a judgment of the circuit court for Ashland
-county: John K. Parish, Circuit Judge. Affirmed,
This is an action to foreclose a real-estate mortgage ex-
ecuted by the defendants to secure the payment of a promis-
sory note also executed by the defendants to the plaintiffs.
Upon plaintiffs^ motion to strike out the answer denying suf-
ficient information to form a belief as to plaintiffs' ownership
of the note and mortgage as evasive and frivolous, the court
ordered it to be stricken out, and in default of an answer
ordered judgment on the complaint This is an appeal from
such judgment
For the appellants there was a bri^ by Sanborn, Lamoreuz
& Pray, and oral argument by A. T. Pray.
For the respondents the cause was submitted on the brief
of Lamoreux, Shea & Cate.
SiBBBCKEB, J. The complaint is in the usual form in
foreclosure actions, stating the amount now due and payable,
4Uid alleging the fact that the plaintiffs '^are now the lawful
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656 SUPEEME COURT OF WISCONSIN. [Nov^
Mathews T. Pufall, 140 Wis. 655.
owners and holders of the said note and mortgage." The
answer admits the execution of the note and mortgage, that na
part of the note has been paid, and allies that the defend-
ants "have not suflScient information or knowledge to enable
them to form a belief as to whether or not plaintiffs are the
lawful owners and holders of the note and mortgage, and
therefore deny the same" Plaintiffs' motion to strike out
the answer as frivolous and for judgment was granted. A.
stay was ordered, but before the expiration of the stay the de-
fendants excepted to the order granting the motion. There-
upon the court entered an order striking out the answer as-
frivolous and ordering judgment in favor of the plaintiffs.
The facts allied show that the defendants were informed
of all the facts as to plaintiffs' ownership of the note and
mortgage at the time of their execution and delivery by de-
fendants to the plaintiffs. The pleadings in the case allege
no fact tending to show that there has been any transfer or
change of ownership of the note and mortgage. The allega-
tions that the plaintiffs were the original owners and are now
the owners and holders of the note and mortgage presump-
tively show that no change in the ownership of the note and
mortgage has taken place since their delivery to the plaintiffs,
and their ownership thereof must be assumed to continue A
denial of plaintiff's ownership on insufficient knowledge or
information to form a belief cannot be resorted to when the
facts allied in the complaint must of necessity be within the
defendants' personal knowledge. If the defendants had al-
leged, in connection with such a denial, facts tending to show
that the defendants were unable to obtain knowledge or in-
formation sufficient to form a belief as to whether or not the
note and mortgage had been transferred by the plaintiffs be-
fore action was commenced, then this form of denial could
have been employed by them. But no such facts are allied
by them, and hence they must be held to have personal knowl-
edge of the fact of the ovniership of the note and mortgage
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12] AUGUST TERM, 1909. 657
Nelson v. A. R Stange Co. 140 Wis. 667.
which they attempt to deny. Under this state of the plead-
ings the court properly struck out this portion t)f the answer
as evasive and frivolous. Sec 2681, Stats. (1898) ; Hathor
way V. Baldwin, 17 Wis. 616; Milwwukee v. O'Sullivan, 25
Wis. 666.
By the Court. — ^The judgment appealed from is affirmed.
Nelson, Respondent, vs, A. H. Stange CoMPAirr, Appellant.
October 29~-Noveml>er 12, 1909.
New trial: Chrounds, Ttow shown: Appeal: Res Judicata: Reinstat-
ing verdict: One judge setting aside order by another: Bill of
exceptions: Settling after time for appeal has expired: Special
verdict: Sufficiency: Witnesses: Cross-examination: Master and
servant: Injuries: Excessive damages,
1. Although a written opinion of the trial Judge Indicates his rea-
sons for granting a motion to set aside a verdict, yet the sub-
sequent order setting it aside upon grounds' expressly stated
therein Is the authentic and official evidence as to such grounds.
2. Where defendant appealed from an order granting to plaintiff a
second new trial, but not from the order granting the first, af-
firmance of the order appealed from conclusively adjudicated
that plaintiff was entitled to a new trial and that a new trial
must follow that order; hence the verdict on the first trial could
not thereafter be reinstated and Judgment entered thereon.
[3. The order setting aside the verdict on the first trial having been
made on the ground that a material issue of fact had not been
submitted to the Jury and because the trial Judge was not satis-
fied with the conduct of the trial and the Instructions to the
Jury as a whole, — whether another Judge, before whom the cause
was brought by change of venue, could, had there been no ad-
judication on appeal, set aside such order of his predecessor,
not determined.]
4. After the time for appeal from an order or Judgment has expired
the court should not, in the absence of stipulation of the par-
ties, settle a bill of exceptions covering the proceedings which
led up only to the making of such order or the rmdltion of such
a Judgment
Vol. 140—42
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658 SUPREME COURT OF WISCONSIN. [Nov.
Nelson v. A. H. Stange Co. 140 Wi& 667.
5. Where by separate answers defendant's actionable negligence in
three particulars was found in a special verdict, a further, find-
ing that '*such negligence was the proximate cause of plain tiffs
injury" was not insufl9cient on the ground that the jury might
not hay^ been unanimous as to which particular item of negli-
gence was the proximate cause.
6. Each separate question of a special verdict is to be answered
upon all the competent evidence bearing thereon and as if this
were the only issue in the case.
7. To show that there was no negligence in failing to equip with a
splitter a ripsaw at which plaintiff was working when injured,
a witness for defendant testified that it was impracticable to
equip the saw with a splitter attached in a particular way. On
the cross-examination plaintiff was permitted to show by the
witness that after the accident a splitter was attached to the
saw in another way. Held proper, it not being necessary to
limit the cross-examination to the exact words of the direct
examination, and the evidence being admitted only for the pur-
pose of showing the practicability of so equipping the saw.
8. An award of $5,200, reduced from $6,200 to that figure by the
trial court, is held not excessive for serious and painful injuries
to a laboring man forty-three years old, resulting in the loss
of one of his eyes and impaired vision in the other.
9. Where damages awarded by the jury have been reduced by the
trial court, the supreme court is reluctant to interfere further
with the verdict on the ground that the amount is still ex-
cessive.
Appeal from a judgment of the circuit court for Lincoln
county: A. H. Eeid, Circuit Judge. AfftnnecL
For the appellant there was a brief by Krevizer, Bird,
Rosenherry & Okoneski, and oral argument by C. B. Bird.
They cited, among other cases^ Oconto B. Co. v. Cayouette,
138 Wis. 664, 120 N. W. 497; Wheeler v. Russell, 93 Wis.
135, 67 N. W. 43 ; Swedish Am. Nat. Bamk v. Koebemich,
136 Wis. 473, 117 N. W. 1020; Linden L. Co. v. Milwaukee
E. R. & L. Co. 107 Wis. 493, 83 N. W. 851 ; Drake v. Scheu-
nemann, 103 Wis. 458, 79 N. W. 749 ; Piano Mfg. Co. v.
Rasey, 69 Wis. 246, 34 K W. 85 ; Hixon v. Oneida Co. 82
Wis. 515, 52 N. W. 445 ; Douglas Co. v. Walbridge, 36 Wis.
643; Musbach v. Wis. C. Co. 108 Wis. 57, 84 N. W. 36;
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12] AUGUST TERM, 1909. . 659
Nelson v. A. H. Stange Co. 140 Wis. 657.
Yazdzemki v. Barker, 131 Wis. 494, 111 N. W. 689 ; Larson
V. Knapp, Stout 4& Co. Co. 98 Wis. 178, 73 N. W. 992 ; Hollo-
way V. H. W. Johns-Manville Co. 135 Wis. 629, 116 N. W.
635 ; Gay v. Milwaukee E. B. & L. Co. 138 Wis. 348, 120 N.
W. 283 ; Sherman v. Menominee Biver L. Co. 77 Wis. 14, 45
N. W. 1079; Kreider v. Wis. Biver P. & P. Co. 110 Wis.
645, 86 N. W. 662; Olwell v. Skohis, 126 Wis. 308, 105 N.
W. 777 ; \Yyaochi v. Wis. Lakes I. & C. Co. 121 Wis. 96, 98
N. W. 950.
For the respondent tbere was a brief by Humphrey Barton
and Thomas J. Mathews, and oral argument by Mr. Mathews.
Among other authorities, they cited Cameron v. Sullivan, 15
Wis. 510 ; Bonesteel v. Bonesteel, 30 Wis. 151 ; Maxwell v.
Kenned^/, 50 Wis. 645, 7 N. W. 657 ; Kayser v. Hartnett, 67
Wis. 250, 30 N. W. 363; Shafer v. Eau Claire, 105 Wis.
239, 81 N. W. 409.
Timlin, J. In this action for personal injury to plaintiff
caused by the alleged negligence of defendant the jury on
January 10, 1907, returned a special verdict by whidi they
found the defendant guilty of negligence which was the proxi-
mate cause of plaintiff's injury, and assessed plaintiff's dam-
ages at $5,000. But they further answered concerning the
plaintiff's contributory negligence and assumpti<m of risk as
follows:
'T>id the plaintiff know and appreciate, or in the exercise
of ordinary care ought he to have known and appreciated, at
the time when defendant put him to woric with said ripsaw,
the dangers incident to working with said ripsaw ? A. Yes.
"Did the plaintiff know, or should he have known in the
exercise of ordinary care, at the time of his injury, that sliv-
ers were liable to be- thrown toward him by said ripsaw?
A. Yes.
"Ought the plaintiff in the exercise of ordinary care to
have reasonably anticipated such an injury as occurred to
him at the time and place of the injury to him ? A. Yes."
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660 SUPKEME COURT OF WISCONSIN. [Nov.
Nelson v. A. H. Stange Co. 140 Wis. 657.
On motion the judge of the superior court in which this
action was tried set aside this verdict and granted a new trial.
In his opinion on the motion he stated that there was no ques-
tion in the special verdict submitting the material issue
whether the plaintiff was guilty of negligence which contrib-
uted to cause his injury. But the order awarding a new
trial is stated to be "on the ground that said verdict is against
the law, in that no question was submitted to the juiy in said
verdict covering the material issue of fact whether or not the
n^ligence of the plaintiff, if any there was, contributed prox-
imately to his injury, and because said verdict does not cover
all the material controverted issues of fact in the case, and for
the further reason that the court is not satisfied with the con-
duct of the trial and the instructions as a whole in submitting
the case to the jury." The defendant filed an exception to
this order, but thereafter joined in a stipulation setting the
cause down for trial on August 27, 1907, another stipulation
setting the cause for trial on September 3, 1907. The cause
was then tried for the second time in the superior court) and
that court directed a verdict for defendant. On motion of
the plaintiff that court thereafter set aside the directed verdict
and granted a new trial. The defendant appealefl to this
court from this second order granting a new trial, and the
order was affirmed in 137 Wis. 309, 118 N. W. 1119.
After the cause was remanded from this court the defend-
ant filed an affidavit of prejudice against the judge of the su-
perior court, and thereupon the parties joined in a stipulation
that the present attorneys for appellant be substituted as at-
torneys and that the place of trial of the action be changed to
the circuit court for Lincoln county, and upon such stipula-
tion the superior court ordered this change on February 17,
1909, and also made an order substituting for defendant's at-
torneys the present attorneys for appellant In the circuit
court the cause was tried for the third time, and the jury re-
turned a special verdict in which they found the defendant
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12] AUGUST TERM, 1909. 661
Nelson v. A. H. Stange Co. 140 Wis. 667.
negligent in three particulars: (1) In failing to provide a
splitter for the ripsaw in question; (2) in failing to have
6aid ripsaw guarded with a cover; (3) in failing to warn and
instruct the plaintiff concerning the danger to which he was
subjected in operating the ripsaw. The fourth question
of the special verdict and the answer thereunto were: "If you
answer any or all of the first three questions TTes/ then was
such negligence the proximate cause of plaintiff^s injury?
A. Yes." The plaintiff was acquitted of assumption of risk
and contributory n^ligence and his damages fixed at $6,200.
On April 22, 1909, the defendant proposed a bill of ex-
ceptions relative to the first trial of the action. This bill of
exceptions last mentioned was settled by Judge Helms of the
superior court on May 10, 1909, after the last verdict in the
circuit court Defendant then moved before the circuit
judge on the record in the action and on such bill of excep-
tions to vacate and set aside the order of Judge Helms of
March 29, 1907, which order set aside the first verdict of Jan-
uary 10, 1907, and to reinstate such verdict and for judg-
ment for the defendant thereon ; also for judgment in defend-
ant's favor on the undisputed evidence on the last trial not-
withstanding the last verdict, to change certain answers in
the last verdict, and, finally, for a new trial for errors occur-
ring during the last trial and because of excessive damages.
These motions were all denied, and on motion of the plaintiff
the bill of exceptions settled by Judge Helms was stricken
from the files and judgment granted the plaintiff on the last
verdict on condition he remit $1,000 from the amo\mt of the
verdict, which was done, whereupon judgment was rendered
for the plaintiff.
Errors are assigned in striking the bill of exceptions of the
first trial from the record and in refusing to vacate Judge
Helms's order of March 29, 1907, and in refusing to rein-
state the first verdict and grant judgment for the defendant
thereon; in denying defendant's motion for judgment not-
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662 SUPREME COURT OF WISCONSIN. [Nov.
Nelson v. A. H. Stange Co. 140 Wis. (»7.
withstanding the verdict in the last trial, and in refusing to
change the answers to certain questions in the last verdict; in
not including in the last special verdict certain questions re-
quested by defendant; in receiving evidence; in rendering
judgment excessive in amount.
The judge of the superior court might properly have en-
tered judgment for the defendant upon the first verdict.
Campehvre v. Standard Mfg. Co. 137 Wis. 155, 118 N. W.
633 ; Monte v. Wavsau P. M. Co. 132 Wis. 205, 111 K W.
1114; Coolidge v. Hallauer, 126 Wis. 244, 105 N. W. 668;
Meyer v. Milwaukee E. R. d L. Co. 116 Wis. 336, 93 N. W.
6 ; Helmke v. Thilmany, 107 Wis. 216, 83 N. W. 360. But
he did not do so, and although his written opinion upon mo-
tion to set aside that verdict indicates that he considered the
verdict insufficient, yet in his order setting it aside he does so
expressly upon the ground that a material issue of fact cover-
ing the contributory negligence of the plaintiff was not sub-
mitted to the jury, and for the further reason that he was not
satisfied with the conduct of the trial and the instructions as
a whole in submitting the case to the jury. This order f(d-
lowed the opinion and represents the later more authentic and
official evidence of the grounds upon which the verdict was
set aside. The defendant neglected to appeal from this order
granting a new trial, but appealed to this court from a like
order made by the superior court at the end of the second
trial. It could have appealed from both orders, but omitted to
do so. Sec. 3049, Stats. (1898). When the cause was deter-
mined by this court affirming the order of the superior court
granting a new trial after the second trial, it was conclusively
adjudicated that the plaintiff was entitled to a new trial and
that a new trial must follow that order. After this adjudica-
tion the defendant could not be permitted to say that there
should be no new trial in the action because of something which
he failed to present to this court Ean v. C, M. & St P. R.
Co. 101 Wis. 166, 76 N. W. 329, and cases; Halsey v. WoAir
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12] AUGUST TERM, 1909. 663
Nelson v. A. H. Stange Co. 140 Wis. G57.
kesha Springs Sanitarium, 128 Wis. 438, 107 N. W. 1, and
cases cited. It is therefore unnecessary to consider the legal
eflFect of joining in the stipulations or participating in the sub-
sequent trials. But it must be understood that we do not de-
cide, and do not proceed upon the assumption, that the judge of
the circuit court could but for this adjudication set aside an
order of his predecessor in the case granting a new trial upon
the grounds here stated in the order so sought to be set aside.
There was no error in the ruling of the circuit court striking
the bill of exceptions relative to the first trial from the record
and refusing to reinstate the first verdict. More than two years
had elapsed from the time of making the first ordw for a new
trial before the bill of exceptions was proposed. The statute
expressly limits the time within which a writ of error may be
issued or an appeal taken to obtain a review by the supreme
court of any judgment or order to two years from the date of
the entry of such judgmwit or order, except in certain in-
stances not here relevant. Sec. 3039, Stats. (1898). This
time cannot be extended. Sec 2831, Stats. (1898). After
the time for appeal from an order or judgment has expired
the court should not, in the absence of stipulation of the par-
ties, settle a bill of exceptions covering the proceedings which
led up only to the making of sudi order or the rendition of
such a judgment Shafer v. Eau Claire, 105 Wis. 239, 81
N. W. 409.
With reference to the last trial, ihe special verdict having
by the first three answers found three grounds of actionable
negligence, the answer to the fourth question established that
such negligence was the proximate cause of plaintiflPs in-
juries. The verdict was quite similar to that in the case of
Roedkr v. C, M. dc SL P. R. Co. 129 Wis. 270, 109 N. W.
88, and Olettler v. Sheboygan L., P. & R. Co. 130 Wis. 137,
109 N. W. 973, in this respect See, however. Peck v. Baror
boo, 141 Wis. 48, 122 K W. 740, with reference to the
requisites of a special verdict when submitted in this form.
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664 SUPREME COURT OF WISCONSIN. [Nov.
Nelson v'. A, H. Stange Co. 140 Wis. 657.
Without restating the evidence offered at the second trial, we
will merely say that we agree with the learned circuit judge
that there was evidence to support the verdict returned by the
jury. It is contended that in arriving at an affirmative an-
swer to the fourth question of the special verdict some mem-
bers of the jury may have considered that the absence of the
splitter as found in answer to the first question was the sole
cause of plaintiff's injury, other members that the absence of
the cover as foiind in the second answer was the sole cause,
and still other members that the failure to instruct or warn as
foimd in the third answer was the sole cause; and so the
plaintiff may have obtained an affirmative answer to the
fourth question without the unanimous concurrence of the
jury finding which particular item of negligence was the
proximate cause of plaintiff's injury. Reflection must dis-
close that such a rule carried to its logical conclusion would
defeat all general verdicts and most special verdicts. Each
separate question of a special verdict is to be determined and
answered upon all the competent evidence bearing thereon,
and as if this were the only issue in the case. There are no
doubt cases in which the rule invoked by appellant obtains.
Du Cote V. BrigUon, 133 Wis. 628, 114 N. W. 103, and
cases cited. Ody v. MilwavJcee E. B. S L. Co. 138 Wis. 348,
120 N. W. 283, relied upon by appellant, presented a case
where a single question answered by the jury in the affirma-
tive presented two alternative propositions, and therefore is
not applicable to tiie instant case. We do not find that this
objection has ever been sustained to a situation like the pres-
ent Without at present attempting to define or set exact
limits to this rule, we consider that it is not applicable to the
situation here presented.
It was shown against the objection of appellant that after
the accident in question the saw was equipped with a splitter.
But the defendant first offered a witness who testified that a
splitter could not have been fastened to the table and main-
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12] AUGUST TERM, 1909. 665
Nelson v. A, H. Stange Co. 140 Wis. 657.
tained there with this kind of saw. On cross-examination of
this witness he was asked whether it was a fact that a splitter
was used on this particular machine, and, upon objection be-
ing made, plaintiffs counsel announced that this was solely
for the purpose of showing that it was practicable to put a
splitter on this machine, whereupon the witness was required
to answer, and he did answer that after they had studied out
how to do it they had equipped the saw with a splitter. Ap-
pellant contends that his question in chief was limited to the
practicability of fastening a splitter on the table behind the
saw, while the cross-examination was permitted to show a
splitter otherwise attached. This is quite a refined distinc-
tion. The evidence in chief was for the purpose of support-
ing and tended to support an inference that the defendant
was not negligent because it was impracticable to equip the
saw with a splitter. The cross-examination might properly
be extended to matters tending to dissipate such inference,
and was not limited to the exact words of the examination in
chief. Under such circumstances, and for the purpose for
which it was drawn out, the testimony was competent Lind
V. Uniform 8. & P. Co., ante, p. 183, 120 N. W. 839, and
cases cited.
Upon the claim that the damages awarded, after having
been reduced by the trial judge from $6,200 to $5,200, are
still excessive, appellant submits that the plaintiff was a labor^
ing man forty-three years of age who lost an eye by the acci-
dent, had hospital and medical expenses of only $95, and his
earning capacity was not impaired by the injury. The
plaintiff offered no medical testimony and the defendant none
bearing upon the extent of plaintiffs injuries. But it ap-
pears from plaintiffs evidence that the injury was a very
painful one, consisting in a sliver being driven through the
eyelid and deep into tiie eye, of the operation for the removal
of the eye and of the difiSculty and inconvenience from dust
and suppuration which follows the loss of the eye, and of im-
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666 SUPKEME COURT OF WISCONSIN. [Nov.
Peterman v. Kingsley, 140 Wis. 666.
paired vision in the remaining eye for the purpose of reading
by artificial light The circuit judge properly reduced the
verdict, and we are reluctant to interfere with verdicts on the-
ground that the damages are excessive in cases where tiie cir-
cuit judge in the proper and fearless discharge of his duty^
has already exercised his judgment with respect to the amount
of damages to be allowed. We find no reversible error in the-
record and must decline to disturb the judgment.
By the Covrt. — Judgment affirmed.
Petermaw and others^ Respondents, vs. Ejngslst and
others. Appellants.
October 28 — November It, 1900.
Fartition: Who may maintain action: Estate in possession: Tenants^
in common: Lessees furchasing interest: Parties.
1. A tenant In common of land leased to others may maintain aH'
action for partition under sec. 3101, Stats. (1S98), the leases'
possession beins that of the owners; and if one or more of the
lessees purchase the interest of one of such owners they succeed
to his rights and may have partition.
2. Lessees of land are not necessary parties to an action for parti-
tion between the lessors, their rights not being affected. If the-
land is to be sold in such action it must be sold subject to the
leases.
Appeal from a judgment of the superior court of Linooln>
oaunty : Almon A. Helms, Judge. Affvrmed.
In February, 1905, R. 0. Kingsley and John Ross were-
the owners of certain real estate in the city of Merrill on
which had been erected a business block. During that montb
a portion of the block was leased by the plaintiffs W. F. and
A, F. Peterman for a period of five years at an annual rental
of $1,200, payable monthly in advance. Other portions of
the block were leased to other tenants, and a portion of the-
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12] AUGUST TERM, 1909. 667
Peterman y. Kingsley, 140 Wis. 666.
real estate was not leased to any one at the time this action
was commenced. The said lessees, together with B. J. Peter-
man, on OP abont March 1, 1907, purchased the interest of
John Boss in such real estate. Since such purchase the les-
sees have been paying to the defendant R. O. Kingsley one
half the amount provided for in their lease. One half the
rent received from the other tenants has been paid to the de-
fendant Kingsley, and the remaining half to the purchasers
of the Ross interest. This was an action for partition, in
which it was prayed that a sale of the premises be made in
case partition could not be had without prejudice to the own-
ers of the property. The court found that the property
could not be partitioned and ordered a sale thereof. The
defendants B. 0. and Margaret Kingsley appeal from such,
order.
For the appellants there was a brief by Yan HecTce dc
Fisher, and oral argU2Xient by W. E. Fisher.
For the respondents there was a brief by M. C. Porter, at-
torney, and F. J. A A. E. Smith, of counsel, and oral argu-
ment by Mr. Porter and Mr. F. J. Smith.
Barnes, J. The appellants contend that at the time the
Peiermans purchased the interest of Roes in the real estate
sought to be partitioned they were in possession of a portion
thereof as tenants under a lease from the defendant Kingsley
and their grantor, Ross, which has not yet expired, and that
they are still in possession under such lease, and that such
possessicm is not suflBcient to support an action for partition.
Furthermore, that a sale of the premises in the partition pro-
ceeding might destroy the relation of landlord and tenant ex-
isting between Kingsley and the Peiermans, and that a tenant
cannot change his relationship to his landlord in any sudi
manner. Sec. 3101, Stats. (1898), provides that joint ten-
ants, or tenants in common, of lands may have partition
thereof, and that such an action may be brought by any per-
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668 SUPREME COTIRT OF WISCONSIN. [Nov.
Peterman v. Kingsley, 140 Wis. 66d.
son who has an estate in possession of the lands which it is
sought to partition. Manifestly Kingsley and Hoes were
tenants in common of the parcel of land in question prior to
the sale of the Eoss interest The possession of their lessees
was their possession, and either might bring partition pro-
ceedings under the statute. It would be anomalous to hold
that owners as tenants in common did not have an estate in
possession of premises occupied by their lessees. When the
Petermans purchased the interest of their landlord Ross they
acquired all the rights in the property which he possessed and
becanue tenants in common with their oo-owner, Kingsley,
and acquired the same right to bring partition proceedings
that he had. It is true they were liable to Kingsley for one
half the stipulated rent under the lease and that their posses-
sion thereunder was his possession. But it is also true that
by virtue of their purchase, and the tenancy in common with
Kingsley which resulted therefrom, they were in possession
as owners of a half interest in the premises^ The situation
is not different from what it would be had the lease been made
after the purchase and covered the half interest of Kingsley
only. The plaintiffs would then be in possession of a one-
half interest in the property by virtue of their ownership, and
of the remaining moiety by virtue of their lease. This latter
possession would also be the possession of Kingsley. The
plaintiffs have clearly brought themselves within the pro-
visions of sec. 3101, Stats. (1898), and were entitled to bring
this action. EiU v. Reno, 112 HL 154; Eberts v. Fisher, 4A:
Mich. 651, 7 N. W. 211; Hwnt v. HaaeUon, 5 N. H. 216.
It is claimed that the various lessees in possession of the
premises were necessary parties to the suit A lessee has no
right to prevent his landlord from selling the leased property
subject to the lease, at least in the absence of covenants therein
affecting such right Neither can the landowner avoid a
lease by making a sale of the demised property, imless it is so
stipulated in the lease. Neither could the rights of the ten-
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12] AUGUST TEEM, 1909. 669
Peterman v. Kingsley, 140 Wis. 666.
ants in this case be affected by the partition suit We per-
ceive no good reason why the lessees should be made parties to
the action, or how their rights could be affected thereby, unless
it should be held that they might resist a probable change of
landlords. This they could not do. Woodworlh v. Camp-
hell, 6 Paige, 518. The court properly directed the prem-
ises to be sold subject to the leases, and the lessees had no
such interest in the action as would entitle them to litigate the
right of their landlords to make a sale of the premises,
through l^al proceedings or otherwise, subject to the outr
standing leases.
By the Court. — Judgment aflSrmed.
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INDEX.
JfkBAifDONKBirr. See Hiohwats, 9.
Abatbment of action. See Parttss.
JLbusb of Disci^ETioN. See Costs, 1. Witnessks, 1.
Agceptance. See Subscriptions, 2, 3.
AcooinrT Books. See Evidbiccb, 6.
Action.
Who may maintain. See Ck>RPonATiON8, 8. Municipal Corpora-
tions, 23-25. Pleading, 6.
Conditions precedent. See Appeal, 1, 19. Insurahcb, 8. Man-
damus. Master and Servant, 6. Schools and School Dis-
tricts, 3.
At law or in equity? See Contracts, 15. Injunction, 2.
Joinder of causes of action. See Corporations, 7. PLEADma, 3.
Election between causes of action. See Pleading, 2.
Abatement of actions. See Parties.
-Adequate Remedy at Law. See Injunction, 2.
JkDMissiONS. See EhriDENCE, 3-5. '
Adulteration. See Food.
Adverse Possession. See Boundaries. Mills and Milldams, 2-^8.
-Affidavits. See Tax Titles, 1, 3-5.
AoENCT. See Deeds, 1. Evidence, 3-5. Insxtrance. 4-10. Prin-
cipal AND Agent. Railroads, 86, 37. Sales, 6.
Alienation of Affections. See Husrand and Wife.
Amendment of statutes. See Schools and School Districts, 1, 2.
Amotion. See Officers, 1-4.
Ancient Documents. See Highways, 6.
Animals. See Railroads, 32-34.
Answer. See Pleading, 4.
Anticipation. See Carriers, 5. Master and Servant, 9, 10, 31.
Railroads, 28.
APPEAL AND ERROR.
J>ecision9 reviewable. See Appeal, 1, 2. Courts, 5.
Exceptions: Necessity. See Appeal, 10.
1. An order confirming and adopting: a referee's report as to the
amounts to be paid by the plaintiff as a condition precedent to
his right to Judgment setting aside tax deeds, is an order in-
volving the merits and necessarily affecting the judgment, and
therefore, under sec. 2898, Stats. (1898), is a part of the judg^
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672 INDEX. [140
xnent roll and under sec. 3070 Is reylewable on appeal from the
judgment, whether excepted to or not. Roach v, Sanborn L,
Co. . 43&
2. The conclusion of law involved in such order is reviewable on
appeal without exception to the findings of fact upon which it
is based or settlement of a bill of exceptions containing all the
evidence. Ihid,
8. Rulings refusing requested instructions will not be reviewed on
appeal in the absence of exceptions thereto. Monaghan v, N. W.
Fuel Co. 457
Same: Sujjflciency.
4. Where findings necessary to support the Judgment were suffi-
ciently excepted to and are unsupported by competent evidence
the judgment will be reversed, and it is immaterial that the
exception to another finding was insufficient T. D, Kellogg L,
d M. Co. V. Webster M. Co. 341
Bill of exceptions. See Appkal, 2, 8. Costs, 4. Exceptiows, Bnx of.
Evidence as to grounds of order. See New Tbial, 1.
Proceedings in supreme court pending the appeal: Restraining order.
5. The supreme court will not by order restrain an appellant from
doing certain acts pending the appeal when such acts are aa
completely prohibited by the judgment appealed from as they
would be by such an order and the restraining effect of the judg-
ment has not in any way been restricted or modified. Marten
V. Evangelical Creed Congregation, 31
Assignment of errors: SufUciency. See Appeal, 23.
6. Assignments of error that the court erred in the admission of evi-
dence, in the rejection of evidence, in its findings of fact. In con-
clusions of law, and in not finding that defendants committed
the trespass alleged in the complaint, are inadequate because
too general. Stark v. Duhring, 521
7. Assignments of error on the admission of evidence will not be
considered where the particular portions claimed to have been
improperly admitted are not pointed out and the pages of the
printed case referred to generally do not contain the evidence
claimed to be incompetent Stumm v. W. U. Tel. Co. 528
Printed case. See Appeal, 29.
Briefs: Specification of details of errors alleged. See Appeal, 7.
8. Although the costs taxed for drawing a bill of exceptions may in
this case have included something more than the improperly al-
lowed costs of the reporter's transcript, this court will not count
folios to determine that fact, counsel having furnished no sep-
aration or basis for separation of the items. Dralle v. Reeds-
burg, 319
9. Upon appeal infirmities claimed to exist in affidavits made in tax
proceedings should be pointed out by counsel. The court cannot
assume the duty of searching for them. Bouchier v. Hammer,
648
Dismissal. See Appeal, 22.
Review: Parties entitled to allege error.
10. The supreme court cannot Inquire Into alleged errors at the in-
stance of a respondent who has not appealed from the judg-
ment nor filed exceptions to the rulings alleged to be erroneous.
Tilton V. J. L. Gates L. Co. 19r
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Wis.]
INDEX. 673
Same: Questions considered. See Evidence, 11.
Same: Presumptions,
11. Where the trial court made no specific findings of fact, but found
generally that the allegations of the complaint were proven and
true. It will be assumed, on appeal, that It found In plaintiffs
favor upon all controverted questions of fact. Karnes v, Karnes,
280
Same: Findings, when disturbed, Seo Appeal, 4.
12. Where there is evidence to support the findings of a referee, con-
firmed by the trial court, they will not be set aside on appeal
unless the clear preponderance of the evidence is against them.
Witt V, Merz, 29
13. Where there Is evidence to support a finding, and the finding Is
not clearly against the preponderance of the evidence, it will
not be set aside. Tilton v. J. L, Crates L. Co, 197
14. On appeal to this court from the judgment of the clrcnit court
given under sec. 3769, Stats. (1898). the rule obtains that the
determination by such court as to facts should not be disturbed
unless contrary to the clear preponderance of the evidence.
LuckotD V, Boettger, 62
15. A determination by the circuit court of issues of fact by appli-
cation of wrong rules of law is not supported on appeal by the
presumption in favor of its correctness, requiring a clear pre-
ponderance of evidence to the contrary to warrant disturbing it
Ibid.
16. Where in an action for death the question whether decedent was
guilty of contributory negligence as a matter of law Is under
the evidence extremely close, the appellate court must place
considerable reliance upon the decision of the trial court Lind
V. Uniform 8. d P. Co. 183
17. Findings of fact which are not against the clear preponderance
of the evidence are to be regarded as verities on appeal. Joyce
V, Russell, 583
Affirmance and reversal: Material and immaterial errors. See' Banks
AND Banking, 8, 4. Cancellation of Instruiients, 2. CJosts, 1.
Criminal Law, 11, 18, 22-24, 27. Dakages, 5, 11-15. Divorce.
E2MINENT Domain, 3-5. Highways, 15, 17. Homicide, 1. Insur-
ance, 2. Master and Servant, 13, 18, 32. Neoijqenoe, 1, 2.
Pleading, 2. Railroads, 31-34. Sales, 4. Telegraphs and
Telephones, 3. Trial, 1, 3. Witnesses, 6.
18. In the absence of a showing that appellant is entitled to recover
more than the amount for which he had judgment and which
respondent concedes, the judgment should be affirmed. Rich-
ards V. Manitowoc d N, T. Co, 85
19. Where, in an action to recover commissions, it appeared that
certain commissions J^ecame due before the trial, and the sales
on which they were based were admitted without controversy
as to the amount, objection that the commissions were not due
at the time the action was commenced is technical and error
in their allowance should be disregarded under sec. 2829, Stats.
(1898). Tilton v, J, L, Gates L. Co. 197
20. Where the sufficiency of a complaint was not challenged by gen-
eral demurrer, and the true contract of the parties, set up in
the answer but imperfectly set up in the complaint, was es-
tablished at the trial, and the parties litigated the issues aris-
Vol. 140 — 43
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Ing out of such contract, error, if any, in overruling a demur-
rer ore tenus to the complaint on the ground that the imper-
fectly recited contract showed that plaintifFs had not performed
it, should be disregarded under sec. 2829, Stats. (1898). Ibid.
[2L How far sec. 3072m, Stats. (Laws of 1909, ch. 192), changes the
rules adopted and acted upon by this court long before the
passage of that act, and how far, if at all, it extends the pro-
visions of sec. 2829, Stats. (1898), not determined.] Bates v.
C, M. d 8t P. R. Co, 235
22. Where erroneous rulings on evidence vitally affect the whole
amount in controversy the judgment cannot be affirmed under
ch. 192, Laws of 1909, although the actual difference between
the parties will not cover the cost of a new trial; nor can the
appeal be dismissed or the judgment be affirmed under the rule
de minimis non curat lex, so long as the parties have the right
of appeal regardless of the amount involved. Monture v. Reg-
ling, 407
23. Instructions relative to a question upon which the jury found In
appellant's favor cannot be assigned as error by him. Lehman
V. C, 8t. P., Jf . d 0. R. Co. 497
24. Appellant was not prejudiced by the admission of evidence relat-
ing to a question upon which the jury found in his favor and
having no bearing upon any question upon which they found
against him. IJnd.
25. Upon a trial by the court, errors In the admission of ^evidence
are not material if the findings are supported by other evidence
properly admitted. Stark v, Duhring, 521
26. The erroneous admission of evidence is not prejudicial to appel-
lants when it supports their claim and impeaches the case of
the respondent White v. White, 538
Subsequent appeals: Law of the oase.
27. The decision on a former appeal is the law of the case and,
whether right or wrong, is controlling upon a second appeal in
the same action. Roach v. Sanborn L. Co. 435
Mandate on reversal. See Cbiminal Law, 25, 26.
28. Where, upon appeal to this court, findings of a trial court are
condemned because made by application of wrong rules of law
and the right of the matter does not clearly appear from the
evidence, the case upon reversal will be remanded to the trial
jurisdiction to find the facts, proceeding in the light of correct
legal principles. Luckow v. Boettger, 62
Costs: Printed case.
29. Costs are not allowed for printing of a case not in compliance
with Supreme C^ourt Rule 6. Roach v. Sanborn L. Co. 435
Appeal from county court. See Insane Persons.
Appeal from justices* courts. See Justices' Courts.
Appealable Orders. See Appeal, 1, 2.
Arguments of Counsel. See Trial, 1.
Arrest. See Extradition.
Assessment. See Certiorari. Taxation.
Assignments. See Corporations^ 2.
Assumption of Risk. See Carriers, 1. Master and Servant, 22-
26, 31.
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ATTACHMENT.
1. An attachment of land does not deprive the owner of Its use,
occupancy, or enjoyment, except that he may he unable to sell
until the attachment is dissolved; and interest on the value
of the land is not the basis for ascertainment of the damages
suffered in consequence of the attachment. Tilton v. J. L. Cfates
L. Co. 197
2. Compensatory damages allowed because of a wrongful attach-
ment should not exceed such actual damages as are the natural
and proximate result or consequence of the wrongful act in
suing out the attachment Ihid.
Attobnbys. See Tbial, 1.
AUTOMOBILES.
In ch. 305, Laws of 1905, regulating the operating of automobiles
on public highways, the term ''public highways" includes toll
roads. Weirich v. State, 98
Bailiffs. See Coukts, 3-7.
BAiLHEin:s. See Banks aitd Banking, 1, 2.
BANKRUPTCY.
1. Payments discharging a trust fund in the hands of one subse-
quently adjudicated a bankrupt cannot be recovered as prefer-
ences. Ferguson t?. Bauernfeind, 43
2. In an action by a trustee in bankruptcy to recover alleged pref-
erential payments, a finding that the relation of debtor and
creditor existed between the defendant and the bankrupt is not
sustained where the evidence clearly shows a trust relation by
which the bankrupt took, received, and held defendant's money
for the purpose of loaning it, even though he may have mingled
it with his own money. Ibid,
3. Under the federal bankruptcy act the trustee is vested with no
better right or title to the bankrupt's property than belonged
to the bankrupt at the time of the vesting of the trustee's title.
Ibid.
BANKS AND BANKING.
Certificates of deposit: Representations of cashier.
1. Evidence tending to show that plaintiff's husband, having money
in the hands of the cashier of defendant bank, told the cashier
and plaintiff that he wished to give the money to plaintiff, told
the cashier to give her a certificate of deposit therefor, and
advised plaintiff to get such a certificate; that the cashier, who
had full charge of the business of the bank, informed plaintiff
that if she left the money in the bank for six months she would
get three per cent, interest, but if she took it out before that
time she would get no interest, and at the same time wrote out
his personal check on the bank and handed it to her; that she
took the check supposing it to be a certificate of deposit, and
kept it for several months without demanding payment thereon
and without knowledge of its true character; that she was in-
experienced in business; and that there was nothing unless it
was the check to suggest a loan by plaintiff to the cashier pei^
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Bonally, — ^is held sufficient to warrant the jury in finding a
contract of deposit between plaintiff and the bank. Castello v.
Citizens State Bank, 275
2. Assuming, as found by the Jury, that prior to delivery of the
check to plaintiff there was an oral contract of deposit between
the bank, acting through ks cashier, and the plaintiff, it cannot
be held as matter of law that the substitution of the cashier's
personal check therefor and its acceptance and retention by
plaintiff under the circumstances stated revoked or discharged
such oral contract or estopped the plaintiff to enforce it, even
though it appeared that had she carefully examined the check
she would have known the difference between it and a certifi-
cate of deposit, and had she presented it for payment within
sixty days it would have been paid. Ibid.
Violations of banking JatoM. Bee Crikinal Law, 18-21.
Borne: Pleading: Election between counts.
S. Three counts charging a bank cashier (1) with making false en-
tries in the certificate register of the bank, (2) with making
false entries in a ledger as to the amounts due from another
bank, and (3) with making a false report to the commissioner
of banking as to the amount due on time certificates and as to-
the amount due from other banks, all in violation of sec. 17,
subch. II, ch. 234, Laws of 1903, were properly included in one
information; and it was not error to refuse to compel the prose-
cuting attorney to elect between them. Ruth v. State, 373-
Same: Evidence,
4. In a prosecution for making a false report to the commissioner
of banking, defendant was not prejudiced by testimony of ex-
perts that the books of another bank showed that he had falsi-
fied book entries and his report of the amount due from other
banks to his bank, although there was no evidence of the con-
tents of the books of the other bank or of their correctness, —
it appearing otherwise conclusively from the report that de-
fendant knowingly made a false report based on incorrect state-
ments in the books of his bank, so that the testimony of the^
experts was simply corroborative of defendant's admitted knowl-
edge of the falsity of the book entries and of his report to the
commissioner of banking based thereon. Ibid,
Babbeb Shops. See Suitdat Laws.
BEjnsFiT Societies. See Insurance, 3.
Best Evidence. See Indians, 4.
Bill op Exceptions. See Appeal, 2, 8. Costs, 4. Exceptions,^
Bill of.
Bills and Notes. See Larceny. Malicious Prosecution.
Board of Review. See Certiorari.
Books op Account. See Evidence, 6.
BOUNDARIES.
See Municipal Corporations, 1-6.
In an action involving the location of a boundary line, evidence^
of adverse possession is admissible as tending to show the true
location of the disputed line. Stark v. Duhring, 521
Briefs. See Appeal, 9.
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BROKERS.
See Appeal, 19.
1. A contract for commissions "to become due on one-quarter pay-
ment of the selling price of any piece of land sold" is appor-
tionable and not entire, and under it whenever a payment is
made amounting to twenty-five per cent, or more of the selling
price of a tract of land, the commission becomes not only due
but payable. Tilton v. J. L, Gates L. Co. 197
2. An owner having breached his contract to pay to brokers instal-
ments of commissions as lands were sold, the brokers are re-
lieved from continuing to make sales and are entitled to com-
missions on sales made, although there was no showing that
the brokers were prevented from making further sales or were
hindered in performance by the owner's refusal to make pay-
ments as agreed. Ibid.
Building Coittracts. See Principal and Subety.
Burden of Proof. See Insurance, 8. Master and Servant, 27.
CANCELLATION OF INSTRUMENTS.
1. Where the original owner of land had been in actual possession
of it during the three years following the recording of a tax
deed, thereby preventing the running of the statute of limita-
tions in favor of the deed, a representation by the holder of
the deed that the statute had run in its favor, made for the pur-
pose of inducing a conveyance by the heirs of the original
owner, was not a mere legal opinion but was a false representa-
tion of a fact material to the transaction and, even though made
honestly, was such a fraud as in equity would render voidable
a conveyance reasonably induced thereby. KatJian v. Comstock,
427
2. Where in such a case the false representation was as to one only
of several tracts covered by the conveyance, but there was no
evidence enabling the court to apportion the consideration paid,
and defendants had refused an offer giving them an option as
to whether the conveyance should be set aside wholly or only
as to the one tract, it was not error for the trial court to set
aside the entire conveyance. ibid.
CARRIERS.
Relation between carrier and passenger: Personal injuries.
1. The rule that, generally, a master has the right to construct and
maintain his property and appliances in his own way, and if
there is no latent or hidden danger a servant assumes the risk
of injury from the obvious character of such appliances, has
no application as between carrier and passenger. Bates v. (7.,
M. d Bt. P. R. Co. 235
2. The expression "a question of engineering," meaning a question
of Judgment in the construction of a building or appliance, re-
lates to a condition of fact pertinent in cases between master
and servant, and not to any rule of law by which a court or
Jury is disabled from deciding a cause merely because the de-
cision may involve such a question. Ibid.
8. As to a passenger who was injured while in a railway baggage
room at the invitation of the baggage master for the purpose
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of Identifying her baggage, it was the duty of the railway com-
pany to have such room reasonably safe. Ibid,
4. In an action for injuries to such a passenger, who accidentally
stepped between the edge of a baggage truck and the edge of
a pit in which the truck stood with its platform on a level with
the floor, the question whether the baggage room, with such
unguarded pit extending nearly across it, constructed to facili-
tate the loading and unloading of baggage, was reasonably safe
for the use of passengers claiming or identifying baggage there-
in, is held to have been a question for the jury. JMd.
6. The court properly refused in such action to submit for special
verdict the question, "Could it have been reasonably antici-
pated that the accident in question would have occurred at the
time and place in question?" The inquiry should have been
whether defendant could reasonably have anticipated that an
Injury might probably result to a passenger by reason of the
construction and maintenance of this baggage room used as it
was. Ibid.
Same: Oohtrihutory negligence.
€. PlaintifF*s testimony in such case that she did not see the pit Is
held not so manifestly impossible and untrue as to warrant
holding as matter of law that she was guilty of contributory
negligence. Ibid,
7. The jury having found by special verdict that the baggage room
was not reasonably safe, that this was the proximate cause of
the injury, and that there was no contributory negligence on
the part of the plaintifT, whether or not a further express find-
ing that defendant was negligent was necessary to fix its lia-
bility is not determined. Ibid.
8. It was, as matter of law, negligence for a man of full age and
ordinary intelligence, confronted with no exigency and labor-
ing under no fright or excitement, to attempt to alight from a
street oar which to his knowledge was moving at the rate of
six miles an hour, although the conductor had negligently failed
to stop the car as requested and the passenger — who had re-
cently come to this countr>^, and was unable to speak English,
and was inexperienced in street railway travel — had at other
times seen passengers alight from moving cars, and concluded
that he was required to do so, and supposed it was perfectly
safe. Fosnea v, Duluth 8t. R. Co. 455
Taxation. See Taxation, 3.
CKBTincATEs OF DEPOSIT. See Banks and Banking, 1, 2.
CERTIORARI.
The question of the Jurisdiction of a board of review to assess
property for local taxation may be raised on certiorari. State
'ex rel, N. W. C. K. Co. v. Willcuta, 448
Chambers. See Cotjuts, 1, 2.
Children. See Damaqeb, 11. Railboadb, 30, 31.
Churches. See Religious Societies. Subscriptions.
Circuit Courts. See Courts. Justices* Courts.
Circumstantial EviDEKCE. See Criminal Law, 4-7, 12, 22. Homi-
cide, 2. Jurors.
Cities. See Municipal Corporations.
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Cloud on Title. See Vendor and Pubchaseb, 6.
Collateral Secttrity. See Pledge.
Commissions. See Appeal, 19. Brokers.
Common Carriers. See Carriers. Railroads. Taxation, 3.
Compensation. See Courts, 7. Eminent Domain. Railroads, 2,
4-6.
Complaint. See Appeal, 20. Contracts, 17. Corporations, 6, 7.
Injunction, 2. Municipal Corporations, 22. Pleading, 1-3.
Condemnation of land. See Constitutional Law, 8, 9. Drains, 1.
Eminent Domain. Railroads, 3-21, 23.
Conditions Precedent. See Appeal, 1, 19. Insurance, 3. Master
AND Servant, 6. Schools and School Districts, 3.
Conditions Subsequent. See Contracts, 15. Wills, 10.
Confessions. See Criminal Law, 2, 3.
Conflict of Laws. See Pe^^sions, 3, 4.
CONSPIRACY.
Bee Husband and Wife, 3.
In an action for damages for a malicious conspiracy to cause plaint-
iff's commitment to an asylum for the insane, the evidence is
held, as a matter of law, to show that defendants were Justified
in instituting the judicial inquiry as to plaintiff's sanity, it
appearing that they acted in good faith upon information which
came to them from sources entitling it to credit and which
was of such nature as to Justify a belief in the minds of men
of reasonable intelligence and prudence that plaintiff was men-
tally deranged. Scheunert v. Alhers, 678
CONSTITUTIONAL LAW.
Leffialative powers: Delegation. See Courts, 8, 9. Railroads, 8, 20.
1. In matters purely local and municipal, the legislature may enact a
conditional law and refer it to the people or proper municipal
authorities to decide whether such law shall or shall not have
force and effect in their respective municipalities. State ex rel.
WilliarM v. Sawyer Co, 634
2. Such a law must be a complete enactment in itself; and the only
thing that may be left to the people to determine is whether
they will avail themselves of its provisions. Ibid.
8. Ch. 651, Laws of 1907, is void under sec. 2, art. VII, Const, so
far as it attempts to delegate to the county board power to de-
cide upon the number of courts to be established in the county,,
but is valid to the extent of creating and establishing one mu-
nicipal court in each county (at least in such counties as had
no municipal court when the act was passed), and to such ex-
tent only does it become operative when adopted in the manner
therein provided. Ibid.
4. Certain administrative, and perhaps other, functions may prop-
erly be conferred by such a general law upon the county board to
enable it to execute and carry into effect the law when adopted,
as the providing of an ofRce for the Judge, determining his sal-
ary and the places where he shall hold court, and the like. Ibid.
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LaiDs: Enactment: Title,
6. The title of a private or local act should be liberally construed,
and the act should not be declared void under sec. 18, art. IV,
Const, merely because such title does not express the subject
as fully or as unequivocally as possible. In re Southern Wis.
Power Co. 245
6. A private or local act should not be held invalid because of in-
sufficiency of its title unless, giving such title the largest scope
which reason will permit, something is found In the body of
the act which is neither within the literal meaning nor the
spirit of the title nor germane thereto. Ibid.
7. The title to ch. 462, Lr.w3 of 1901. is "An act to authorize [cer-
tain persons named] to build and maintain a dam across and
to improve the navigation of the Wisconsin river." etc., the
particular place where the dam is to be built not being speci-
fied. Held that, assuming the act to be local rather than pri-
vate, the subject of the act is sufficiently localized in its titlo
to meet the requirements of sec. 18, art IV, Const. Durkee v,
Janesville, 26 Wis. 697; Anderton v. Milwaukee, 82 Wis. 279;
and Milwaukee Co. v. Isenring, 109 Wis. 9, distinguished. Ihid.
Judicial powers. See Coubts, 1, 2.
Navigable rivers,
8. A statute authorizing individuals "to build and maintain a dam
across and to improve the navigation of the Wisconsin river
above the same and for the purpose of creating hydraulic
power" is not in violation of sec. 1, art IX, Const (providing
that the navigable waters leading into the Mississippi "shall
be common highways and forever free," etc.), and In the ab-
sence of legislation on the subject by Congress Is within the
plenary power of the legislature. Jn re Southern Wis. Power
Co. 245
9. When the legislature has granted such authority, and the state
does not question that the Improvement made Is In conformity
with the power delegated, neither the necessity nor the use-
fulness of the Improvement, nor the manner In which It Is made,
can be called In question by private parties, even those whose
land Is sought to be condemned In aid of the Improvement Ihid.
Special legislation: Private corporations: Franchise to construct and
maintain dam. See Municipal Corporations, 23.
10. A franchise granted by the legislature to construct and maintain
a dam across a river Is not a corporate power or privilege
within the meaning of sec. 31, art IV^ Const., prohibiting the
legislature from enacting any special or private law granting
corporate powers or privileges except to dtles. Especially is
this so where the act granting such a franchise (In this case
ch. 462, Laws of 1901) specifically provides that no corporate
powers are granted or intended to be granted by It In re
Soutliern Wis, Power Co. 245
11. A franchise, such as the right to build a dam across a river,
which Is not a corporate franchise may be conferred by a special
or private law upon a corporation already existing. Stevens
Point B. Co. V. Reilly, 44 Wis. 296, so far as It holds to the con-
trary, overruled. Ihid.
Same: Alteration or repeal of charters.
12. The power of the state to alter or repeal existing diarters of
corporations cannot be used to take away property or rights
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which have become vested under a legitimate exercise of the
powers granted by a charter. State ex rel. N. P. R. Co, v. Rail-
road Comm, 145
13. Barnes, J., and Winslow. C. J., dissenting, are of the opinion
that there is no limitation on the right of the legislature, under
sec. 1, art. XI, Const, to repeal corporate charters, except the
consciences of the legislators, and no limitation on the right
of amendment, except the XlVth amendment to the federal con-
stitution. Ibid.
Police poioer. See Health. Railroads, 5, 6, 19, 24.
Uniformity of town and county government. See Municipal Corpo-
BATIONS.
Eminent domain: Just compensation. See Railroads, 5-7.
Equal protection of law. See Sunday Laws. 2.
Due process of law. See Railroads, 17. Suwdat Laws, 2.
Statutes partly valid and partly invalid. See Stattttbs, 1.
Ck>NTBMPT. See ExTRADirioif. Witnesses, 3-5.
COHTINGBIIT BSTATB. See WiLLS, 4-6.
CONTRACra
Requisites and validity. See Banks and Banking, 1, 2. Masteb
AND Servant, 1-6. Schools and School Districts, 3-5. Sub-
scriptions.
Same: Consideration,
1. In an action against plaintiff's sister to recover the value of serv-
Ices rendered and expenses Incurred at her request in support-
ing her father, evidence that defendant had received or been
promised her father's property as consideration for supporting
him before she requested plaintiff to do so, would have been
competent as tending to show a mutual understanding that she
would compensate plaintiff; but mere statements made bj
plaintiff on his cross^xamination (which were properly stricken
out because not responsive to any question) that he expected
pay from defendant because she got the father's property, would
not, if they had remained in the case, have tended to show
that defendant received the property pursuant to any promise
made before said request. Koenig v, Koenig, 618
2. The mere facts that a son was requested by his sister to sup-
port their father; that he did so for twelve years without sug-
gesting, until after the father's death, that he expected com-
pensation from the sister; that the sister received by the will
the father's property; and that the son claimed compensation
out of the father's estate, — ^were not sufficient to carry to the
Jury the question whether there was an agreement or under-
standing that the sister was to compensate him. Ihid,
Entire contracts. See Brokers, 1. CJontracts, 6, 7. Master and
Servant, 6.
Executory, See Dawaoes, 7-10. Insurance, 5-8.
Construction, See Banks and Banking, 1, 2. Sales, 1-4.
Illegal contracts. See Insurance, 4-8.
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Performance or breach: Executory contracts. See Brokers, 2. Dam-
ages, 1-4, 7-10, 17. Master and Servant, 5.
8. Where specific performance of an executory contract cannot be
enforced, either party may by explicit order stop performance
by the other, subjecting himself thereby only to a liability to
the other party for compensatory damages for such breach.
Badger 8. L. Co, v, Q. W. Jones L, Co, 73
4. A contract for the sale of lumber to be manufactured, graded,,
tallied, hauled, and delivered on board cars at such times as
cars are furnished by the purchaser, title to remain in the
seller until the lumber is shipped and paid for. Is executory
80 far as it relates to lumber not delivered at the time of a re-
nunciation of the contract by the purchaser. Ihid.
6. The rights of the parties under such a contract must be deter-
mined as of the date the purchaser renounces his contract and
refuses to carry it out. Ibid,
6. A contract requiring a commodity to be shipped in carload lots
as cars are furnished by the purchaser, each car shipped be-
fore a designated date to be paid for in cash fifteen days from
date of shipment, is apportionable and not entire. Ihid,
7. Under such a contract the purchaser may receive part of the com-
modity and may breach the contract as to the portion not de-
livered without subjecting himself to liability for the purchase
price thereof, provided the contract has not been performed by
the seller as to the undelivered portion. Ihid,
8. The refusal of one party to perform his part of an executory con-
tract unless the other party consents to a modification consti-
tutes a total breach of the contract Richards v, Manitowoc d
N, T. Co. 85
9. If, while a contract to do work and furnish materials is still
executory, the party for whom It is to be done orders the work
stopped, the remedy of the other party is to recover damages
for such breach. He cannot proceed with performance and re-
cover the value of the completed job. Ihid,
10. A person may, at law, breach his contract with another and be
liable only to respond to that other for such legal damages as
will remedy the loss to him. Malueg ,v, Hatten L. Co. 381
11. The rights of parties as regards a breach of contract become
fixed at the time the breach occurs. Ihid,
Rescission, See Larceny, 1. Sales, 5-7. Vendor and Purchaser,
3, 4, 6.
12. Ordinarily, facts which will warrant a rescission must have ex-
isted at the time the contract was made. Badger 8, L, Co. v,
O. W. Jones L. Co. 73
13. In an action to recover the contract price of lumber the defend-
ant, having by answer denied plaintlCC's right to recover on
such cause of action, may, by counterclaim, plead that If It
should be held liable to take and pay for any portion of the
lumber it should be allowed damages by way of recoupment
and setoff because of poor manufacture, without thereby waiv-
ing any rights it might have under an attempted rescission.
Ihid,
14. In an action for rescission of an executed purchase of corporate
stock under an agreement by which plaintiff had conveyed land
to defendant in payment for said stock and defendant had
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agreed that certain dividends would be paid thereon and had
further agreed that at any time, on plaintiff's request, he would
give the latter stock in another corporation in place of that
first mentioned, the complaint alleged that defendant by false
representations had induced plaintiff to make a partial ex-
change of the stock, and alleged that no dividends had been
paid as agreed. Held, that the allegations as to false repre-
sentations inducing the exchange of stock were irrelevant ta
the relief sought Forster v. Flack, 48
15. Breach o^ a condition subsequent, of an express warranty, or o{
. a covenant, in the absence of other grounds of equitable Juris-
diction, will not support a complaint in equity for rescission
of a contract, the remedy at law being adequate. /&td.
16. A fully executed agreement, whereby plaintiff conveyed land to
defendant in consideration of certain corporate stock, cannot
be rescinded in equity solely for breach of defendant's under-
taking that the stock would pay agreed dividends. l^iid.
17. In such case a complaint alleging breach of the agreement that
the shares of stock transferred to plaintiff would pay certain
dividends, without allegation as to the value of either the stock
or land, states no legal cause of action, since failure to declare^
or pay dividends does not necessarily affect the intrinsic value
of the shares. /^itf.
Contributory Negligencb. See Appeal, 16. Carriers, 6-8. High-
ways, 12. Master aio) Servant, 4, 10, 22-31. Negligence, 3.
Railroads, 28. Street Railways, 3, 4.
Conveyances. See Cancellation of Instruments. DssDa Tax
Titles. Vendor and Purchaser.
CORPORATIONS.
Incorporation, See Religious Socibtiss, 1.
Corporate existence and franchise. See Street Railways, 1.
Capital stock. See Contracts, 14, 16, 17.
1. A corporation has power to purchase shares of its own capital
stock when such purchase is made with no illegitimate or fraud-
ulent purpose and no rights of creditors suffer thereby. Oil-
Christ V. Highfield, 476
Members and stockholders. See Contracts, 14, 16, 17. Corpora-
tions, 5. Religious Societies, 2.
Officers. See Corporations, 5, 7.
Corporate powers: Property and conveyances: Purchase of franchises,
2. The franchise to build a dam across the Wisconsin river granted
by ch. 462, Laws of 1901, being expressly made assignable, a
corporation organized for the purpose under ch. 86, Stats.
(1898), had the right, under sec. 1775a, to take an assignment
of such franchise. In re Southern Wis. Power Co. 245
3. Under sec. 1775a, Stats. (1898), the acquirement and use of such
a franchise is a lawful business or purpose, for which, under
sec. 1771, a corporation may be organized. Ibid.
4. The provision in sec. 4, ch. 462, Laws of 1901, that no corporate
powers are granted or intended to be granted by that act, does
not prohibit a corporation otherwise created from acquiring
and exercising the rights and franchises granted by said act.
Ibid.
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Dissolution: Repeal of charter. See Constitutional Law, 12, 13.
Same: Who may maintain action.
5. Where the directors at a dissolved corporation have wholly failed
and refused to perform the duties imposed by sec. 1764, Stats.
(1898), to settle its affairs and distribute its assets, thus de-
priving a stockholder of his share of the assets and correspond-
ingly enriching themselves, the stockholder may maintain an
action in equity to wind up the affairs of the corporation and
for the appointment of a receiver to perform the functions which
the directors have refused to perform. Seering v. Black, 413
'6. In such an action there was no impropriety in alleging that plaint-
iff was also a creditor of the corporation and in setting forth
a fairly complete history of its condition and affairs. IHd.
7. Although the prayer of the complaint in such an action might be
considered as asking for relief which could not be granted
therein, viz., a money Judgment in favor of plaintiff as a cred-
itor and a like judgment in favor of the corporation against its
officers, yet it might also be construed as asking merely that
the claims so involved be duly paid or enforced by the receiver,
and, so construed, the complaint states but a single cause of
action. Ihid,
18. Whether a creditor other than a Judgment creditor may maintain
an action to wind up the affairs of a corporation dissolved by
operation of law, not determined.] Ildd.
Reliffious societies. See Reuoious Sooietibs.
<30BB0B0RATI0N. See Criminal Law, 15, 16.
COSTS.
See Appeal, 8, 29.
1. A ruling of the trial court withholding costs in an equitable ac-
tion will not be disturbed on appeal unless there was an abuse
of discretion. Olwell v. Travis, 547
'2. Witness fees paid to Jurors for attendance upon the hearing of a
motion for a new trial, which was based in part on alleged mis-
conduct of one of the Jurors, are held to have been properly
allowed in the taxation of costs. State ex rel, Wagner v, Dahl,
301
3. That part of subd. 6, sec. 2918, Stats. (1898), allowing costs to the
plaintiff in an action on contract when he shall recover $100 or
more, is not a qualification or repeal of subd. 7, although it was
originally enacted later than subd. 7 and overlaps the ground
covered thereby; and in a case coming within the terms of
subd. 7, where the recovery was more than $50 but less than
$100, plaintiff was entitled to costs. Olson v. U. 8. Sugar Co.
309
4. Costs taxable for drawing a bill of exceptions should not be held
to include that part thereof composed of a transcript of the re-
porter's notes, drawn by the reporter, for the cost of which the
successful party has already been fully reimbursed by the other
party. Dralle v. Reedshurg, 319
•Counterclaim. See Ck)NTRACTS, 13. Ejectment, 4. Pleading, 5.
County Board. See Constitutional Law, 3, 4. Coubts, 8, 9. Tax-
ation, 4.
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INDEX. 685^
Coui^TY Courts. See Indtaz^s, 1, 2. Insane Persons.
Court and Jury. See Carriers, 4. Contracts. 2. Criminal Law,
10, 11. Damages, 5. Insurance, 2. Master and Servant, 3,
4, 8, 16. Railroads, 30, 32, 33. Telegraphs and Tele-
phones, 3. Trial, 2.
COURTS.
Eatabliahment and organization: Place and time of holding court
outside of circuit,
1. The provision of sec 11, art. VII, Const, that "the judges of the
circuit court may hold courts for each other," should be liber-
ally construed, the authority so conferred being Intended to
Include generally the judicial business which a circuit judge la
authorized by law to transact. One circuit judge may therefore^
in a proper case, make orders at chambers In another circuit
In re Southern Wis. Power Co, 245
2. Even if the provision above quoted expressly authorizes a cir-
cuit judge to hold court only at a regular term outside of his
circuit, it does not preclude the legislature from conferring
larger powers, as has been done in sec. 2432, Stats. (1898).
Ibid,
Borne : Jurisdiction. See Indians, 1. Judgment. Municipal Cor-
porations, 5, 6, 11, 13, 14.
Bame: Conduct of business: Appointment of attendants.
3. The power to appoint necessary attendants upon the circuit court
is inherent in that court in order to enable it to properly per-
form the duties delegated by the constitution, and is recognized
by sec. 2431, Stats. (1898), as amended by ch. 224, Laws of 1903.
Stevenson v, Milwaukee Co, 14
4. In the exercise of its inherent power to appoint necessary at-
tendants it is for the presiding judge of the circuit court to de-
termine the necessity. In that respect he is vested with a broad
and liberal discretion. Ibid,
[5. Whether the power of such judge in determining the necessity
of appointment of attendants is subject to review In tmy case,
not decided.] Ibid.
6. Where it seems necessary a circuit judge may appoint a court
attendant in addition to the sheriff and his deputies for such
time as the necessity exists, notwithstanding the statutory au-
thority given the sheriff to appoint special deputies under a
special order of such judge authorizing an additional number
of deputy sheriffs. Ibid,
7. The compeni^tion of necessary attendants appointed by the cir-
cuit judge is the per diem allowed deputy sheriflfs for the time
expended during sessions of the court, to be recovered by cer-
tification in the same manner as fees of jurors are paid. Ibid,
Supreme court. See Appeal. Criminal Law, 25, 26. Damages, 5.
Circuit courts. See Justices' Courts.
County courts. See Indians, 1, 2. Insane Persons.
Municipal courts. See Constitutional Law, 3, 4.
^. The requirement in sec. 2523 — 2, Stats.: ch. 651, Laws of 1907
(providing for special municipal courts in each county), that
the law shall be adopted by resolution before any action shall
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68C INDEX. [140
be taken by the county board to provide for the court, 1b mandsr
tory; and where a county board attempted In a single resolution
to adopt the law and make provision for a court thereunder, the
latter part of the resolution, at least, was void. State ex reh
Williams v. Sawyer Co. 634
9. Whether, In such case, so much of the resolution as adopted the
law was valid, not determined. If valid It cannot be rescinded
by subsequent action of the county board, at least In the absence
of express legislative authority so to do; but so much of the
resolution as was void could properly be rescinded. Ihid.
Justices' courts. See Justices* Coubts.
Covenants. See Contracts, 15.
CRIMINAL LAW AND PRACTICE.
Nature and elements of crime. See B>vnks and Banking, 3, 4. Em-
bezzlement. Food, 2. Homicide. Indictment and Informa-
tion, 1. Larceny. Rape.
Preliminary examination: Commitment, See Habeas Corpus.
1. A legal preliminary examination may be had without calling the
complainant as a witness, the provision in sec. 4786, Stats.
(1898), that the magistrate shall examine him being directory
merely. Lundstrum v. State, 141
2. A confession of guilt by the accused may be received and con-
sidered by the examining magistrate in connection with other
evidence as tending to prove that an offense has been com-
mitted and that there is probable cause to believe the accused
guilty thereof. lliid.
3. The evidence (Including the confession) on the preliminary ex-
amination of one charged with murder is held sufficient to jus-
tify the magistrate in holding her for trial. i&id.
TriaZ: Reception of evidence. See Banks and Banking, 4. Criminal
Law, 2, 3. Food, 1. Homicide, 1, 2.
4. Circumstantial evidence is an Instrumentality in the admlnistrar
tion of Justice quite as legitimate as direct evidence for the es-
tablishment of an evidentiary circumstance, or the main fact in
controversy in a judicial trial. Spick v. State, 104
5. The degree of certainty respecting the existence of the main
fact in controversy in a iudicial trial, in order to warrant a
finding in favor of the party affirming such existence, is the
same where the evidence relied upon is partly or wholly cir-
cumstantial as where it Is direct. Itid,
^. In case the evidence, whether wholly circumstantial or not, pro-
duces a conviction to a moral certainty — that is, beyond a rea-
sonable doubt — in the minds of the jury of the existence of
the ultimate fact in controversy, a verdict is due accordingly
the same as If conviction with like degree of certainty were
produced by direct evidence. Itid.
7. Proof of motive Is not essential to a conviction in a prosecution
of a person upon a charge of his having committed a criminal
offense, but circumstantially it is of more or less weight as to
the material fact according to the nature of the situation; and
in a case resting wholly upon circumstantial evidence the pres-
ence or absence of motive may well be the deciding factor.
Ihid.
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8. If the Jury believe that any witness has wilfully testified falsely
respecting any material matter, they may, if they see fit, but
are not bound to, reject all of such witness's evidence on that
ground alone, where not corroborated by some other credible
evidence. IMd,
9. A person on trial, charged with having committed a criminal
offense, is presumed to be innocent; and such presumption en-
titles him to an acquittal till overcome by evidence establishing
his guilt to the satisfaction of the Jury beyond a reasonable
doubt /6W.
Same: Province of court and jury,
10. The weight of evidence to establish an evidentiary circumstance,
and the weight of such circumstance as evidence when estab-
lished, is for the Jury. Spick v. State, 104
11. Whether evidence offered tends to establish an evidentiary cir-
cumstance, or such circumstance to establish the main fact in
controversy. Is a question for the court. The decision In that
regard, being In the field of mere competency, should not be
disturbed on appeal unless manifestly wrong, the matter to be
viewed having regard to the superior advantages of the trial
over the reviewing court for determining such question. Ibid,
Same: Necessity, requisites, and sufficiency of instructions. See Cbim-
INAL Law, 22.
12. It is proper, though not necessary, in Instructing a Jury in a
criminal case, where conviction is dependent partly or wholly
on circumstantial evidence, to use this language or something
similar: The accused Is entitled to an acquittal unless the evi-
dence satisfies the Jury to a moral certainty of the existence
of all the material circumstances; that they are consistent with
guilt and Inconsistent with any other reasonable hypothesis.
Spick V, State, 104
13. In a criminal case it is sufficient to Instruct the Jury in any ap-
propriate language, as to the degree of certainty of guilt requi-
site to a conviction, to the effect that: In order to warrant a
conviction each and all of the material circumstances and the
fact of guilt should be established to the satisfaction of the
Jury beyond every reasonable doubt. Ibid.
14. A Jury may be Instructed that the evidence on the part of the
state tends to establish its claim and that on the part of the
defendant the contrary. It being made plain that the real right
of the matter is wholly for them to determine from all the evi-
dence produced. Ibid.
15. A witness may be Impeached by proving by the evidence of other
witnesses that his evidence is false; also by proving he has
made statements out of court inconsistent with those made
under oath in court. But a Jury should not be instructed that
if they believe from all the evidence that the testimony of any
witness is false they may reject it, as if they had discretion
whether to reject or not reject such evidence, nor be Instructed
that whether to reject such evidence or not is conditioned upon
whether the same is corroborated by other credible evidence.
Ibid.
16. Belief upon the whole evidence that the testimony of any wit-
ness is false precludes the existence of its being corroborated
by any credible evidence so as to be entitled to be believed.
Any suggestion to the contrary Involves absurdity and is to be
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avoided because of danger of the subject being confused with
the rule of falaus in uno, falsus in omnihut. Ibid.
17. A Jury may properly be admonished of the importance of agree-
ing upon a verdict and told, if such appears reasonably to the
trial judge to be the situation, that the evidence is not so vo-
luminous or hard to understand, but that a conclusion can be
reached one way or the other within a reasonable time, and
that such result is expected, care being taken not to suggest
which way Is proper or to go further than to stimulate appre-
ciation of Jury duty. Il>id,
18. An information charging the making of a false report to the com-
missioner of banking respecting two specific matters was read
to the Jury, and they were instructed as stated in the opinion.
Held, that it must be presumed that the Jury applied this gen-
eral language to the specific matters charged in the informa-
tion read to them, and that the instruction was not prejudicial
to the defendant. Ruth v. State, 37^
Same: Verdict. See Cbiminal Law. 6. Homicide, 3-5.
19. Under a count in an Information charging that defendant wil-
fully made a false report to the commissioner of banking re-
specting (1) the amount due from other banks and (2) the
amount of outstanding time certificates of deposits, a verdict of
guilty may be sustained upon proof that the report was false
as to either one of the two matters specified, if it appears that
the Jury agreed as to that one. Ruth v. State, 373
20. In such a case a verdict of not guilty on another count charging
the making of false entries in the bank's register of certificates
(with which entries the report as to such certificates agreed)
is held to show that the verdict of guilty as to the report was
based on an agreement of the Jury that such report was false In
respect to the amount due from other banks. Ibid,
21. It will be presumed that the verdict of the Jury rests upon the
facts established by the evidence. Ibid.
Appeal and error: Review: Affirmance and reversal. See Baitks A2n>
Banking, 3, 4.
22. While it would be well to specially Instruct a Jury on the sub-
ject of circumstantial evidence where the truth of a contro-
versy Is to be discovered partly or wholly from such evidence,
omission to do so is not fatal error unless proper instructions
in respect thereto are presented and rejected. Bpick v. State.
104
23. The decision of the trial court as to the competency of evidence
should not be disturbed unless manifestly wrong. Ibid.
24. In case a decision by a trial court on the question of competency
when made was wrong, but is right viewed from the standpoint
of the whole evidence at the close of the tria^, the error is harm-
less. Ibid.
25. Sec. 4719, Stats. (1898), vests in the supreme court a broad and
liberal discretion in ordering a new trial in criminal actions
where the Justice of the case demands. Prinslow v. State, 131
26. A new trial is directed by the supreme court although it had
been denied by the trial court, in a prosecution for embezzle-
ment, under the evidence, stated in the opinion. Ibid.
27. After retiring, the jury returned into court announcing a dis-
agreement upon a certain point. Counsel for the defendant sug-
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gested that the testimony of the complaining witness on that
point was undisputed and consented that it be read, but, after
the court had ordered it read, asked to have all the other evi-
dence read, and on refusal thereof by the court objected to th«
reading of the testimony first mentioned. Held, that it was not
error to permit the reading of such testimony, counsel for de-
fendant having himself invited it. iiarkley v. Btoie, 137
Cboss-Complaint. See Plsadiho, 6.
GBoss-ExAMiif ATioN. See Contracts, 1. Evidkncx, S. Mastsb aitd
SKRVAKT, 14. WlTlf ESSES, 1, 2, 6.
Gbossings. See Railboads, 2-24.
DAMAGEa
Nomitua damages. See Damages, 8.
Grounds and subjects of compensatory damages. See Attachvent.
Contracts, 3-11. EifiNEirr DouAm, 5. Husband and Wurs,
4, 5. Insurance, 1, 2. Railroads, 7.
Same: Direct or remote. See Damages, 4, 6, 16, 17.
1. The legal damages for breach of contract are such as may fairly
and reasonably be considered to be the natural and proximate
result of the breach and, in the light of the circumstances
known» actually or constructively, to both parties at the time of
such making, as having been then in their mutual oontempla-
tion as the probable result of such breach. Malueg v. Hatten
L. Co. 381
2. Damages recoverable for breach of contract must be reasonably
certain and the proximate result of the breach, excluding all
merely speculative or imaginary damages. Richey v. Union
Central L. Ins* Co. 486
3. Although the. elements of future damages for breach of contract
may be involved in some uncertainty and contingency, yet if,
from the facts shown, it can be inferred with reasonable cer-
tainty that the breach caused the other party pecuniary loss,
compensation therefor should be recovered even though future
profits may be involved in its ascertainment Ibid*
Same: Speculative. See Damages, 2.
4. Damages for loss of profits from a prospective contract of employ-
ment which was not secured because of defendant's negligent
failure to deliver a telegram apprising plaintiff of the oppor-
tunity to close such contract, are not too speculative to be recov-
ered. Stumm V. W. U. Tel. Co. 528
Exemplary or punitory damages. See Husband and Wife, 4, 5.
6. Punitory damagei are not assessable as matter of right, and the
question of their allowance or disallowance is one for trial
courts and Juries to pass upon. The supreme court will not
reverse a judgment for failure to award such damages, nor will
it undertake to make an assessment thereof. Tilton v. J. L.
Gates L. Co. 197
Measure of damages. See Appeal, 18. Attachment. EhcnnsNT Do-
main, 5. Highways, 17.
6. In an action for damages for wrongful conduct preventing plaint-
iff from obtaining employment the reasonable value the contract
would have netted to him had the breach of duty not occurred is
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the measure of damages, provided the evidence presents a fair
basis for determining such vaiue with reasonable certainty.
Btumm V. W. U. Tel. Co. 528
7. If a breach of contract consists of failure to deliver, upon a sale
agreement, personal property at a specified time, there being
no special circumstances, known to both parties at the time of
making the agreement, varying the general rule, the damage
recoverable is the difference, at the time of the breach and at
the agreed place of delivery, between the market value of the
property and the contract price, with legal Interest from the
time of the breach. Malueg v. Batten L, Co. 381
8. In case of an action for damages for breach of contract, in the
circumstances mentioned In No. 7, In the absence of evidence
that the market value of the property at the time and place
of delivery agreed upon, exceeded the contract price, no more
than nominal damages are recoverable. IhiA»
9. In case of partial delivery of property, In the circumstances men-
tioned In No. 7, and payment therefor after the breach without
objection and with knowledge of the facts, the agreement pro-
viding for pa\Tnent as fast as deliveries are made, such circum-
stances do not, of themselves, waive any claim for damages for
such breach. Ihid.
10. In case of the breach of contract In the circumstances stated in
the foregoing, and a claim thereafter upon the side of the ex-
ecutory vendee that he Is legally entitled upon the contract to
the balance of the property, and insistence upon the other that
he is under no such obligation, and delivery of the balance of
the property pursuant to a mutual understanding for payment
therefor at the market price at the time of delivery, in case of
the vendee not being entitled as he claims, the vendor should
be paid such market price. IhxA.
Excessive damages. See Husband and Wife, 5.
11. A verdict of $10,000 for damages sustained by a child ten years
of age, consisting of loss of his left arm close to the shoulder,
a cut on his head, and bruises and scratches on his face, which
was held not excessive by the trial court, will not be disturbed
on appeal. SchuHnd v. C, M. d 8t, P. R. Co. 1
12. A man forty-three years old, earning $2.75 per day, sustained
injuries necessitating amputation of his left arm close to the
shoulder; his nose was broken and his face disfigured; three
ribs were fractured, and his side badly lacerated and perhaps
permanently Injured. Held, that a verdict awarding $14,500
damages, upheld by the trial court, should not be disturbed on
appeal. Monaghan v. N. W. Fuel Co. 457
13. Marshall, J., is of the opinion that under sec. 2878, Stats. (1898),
where damages awarded are so excessive as to show passion or
prejudice on the part of the jury the verdict may be set aside
as being "contrary to the evidence;" and that it may be set
aside "for excessive or Inadequate damages" although there was
no passion, prejudice, or improper motive. Ihid.
14. An award of $5,200, reduced from $6,200 to that figure by the
trial court, is held not excessive for serious and painful Injuries
to a laboring man forty-three years old, resulting in the loss
of one of his eyes and impaired vision in the other. Kelson v.
A. H. Stange Co. 657
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15. Where damages awarded by the jury have been reduced by the
trial court, the supreme court is reluctant to Interfere further
with the verdict on the ground that the amount is still excessive.
Ibid.
Evidence,
16. EMdence, stated In the opinion, is held to show resulting dam-
ages with reasonable certainty and Justify recovery thereof.
Rickey v. Union Central L, Ins. Co. 486
For breach of contract of employment,
17. In an action for the breach of the contract by the insurance com-
pany, whereby the agency business which plaintiff had built up
was destroyed, the damages recoverable are not subject to be re-
duced by the amount which he earned in other employment
after the breach and before trial. Ihid,
Dams. See CoNaTrruriowAL Law, 7-9. Corporations, 2-4. Eminent
Domain, 2. Mills and Milldams. Navigable Waters, 1, 3.
DEATH.
See Appeal, 16. Insurance, 8. Master and Servant, 16, 25, 26, 28.
Street Railways, 3.
Proof of diligent search and inquiry is not required to establish
the presumption of death of a person who has been absent from
his home or place of residence for seven years without being
heard from. Miller t?. Sovereign Camp, 505
Debtor and Creditor. See Attachment. Bankrtptcy. Banks
AND Banking, 1, 2. Contracts. Corporations, 5-8. Pensions.
Deceit. See Vendor and Purchaser, 8.
Declarations. See Evidence, 3-6. Highways, 9. Husband Ain>
Wife, 2. Indians, 4.
DEEDS.
Requisites and validity. See Cancellation" of Iwstbumewts,
Same: Delivery hy agent: Apparent authority.
1. A person intrusted with a deed for the purpose of obtaining the
signatures of the grantors and making delivery for them, was
clothed at least with apparent authority to close the deal on
their part; and where, on his presenting the deed to the grantee,
the latter objected to the date specified therein as the expira-
tion of the time within which a corporation must remove from
the land certain standing timber which the grantor had con-
veyed to it, and the agent thereupon changed such date to cor-
respond with that specified in the conveyance to the corporation,
the grantee had a right to rely upon the agent's apparent au-
thority and to accept the deed as thus changed, and the grantors
were bound thereby. Bretz v. R. Connor Co, 269
Construction: Property conveyed.
2. In a conveyance of land, a clause "reserving the pine and cedar
timber now growing or being thereon and the right to cut and
remove the same'* is an exception, not a reservation. The tim-
ber remains the property of the grantor, together with a right
in so much of the soil as is necessary to sustain it, and he is
not bound to remove it within a reasonable time. Bardon v.
O'BHen, 191
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8. Under a deed conveying timber standing: or situated on certain
lands, "with the right to the" grantee '*to enter upon said lands
and remove said timber ... at any time on or before" a cer-
tain date, only such timber passes as is removed during the
» time specified. Bretz v. R. Connor Co. 26d
Delegation op Legislattvx Poweb. See Constitutional Law, 1-4.
Ck)URT8, 8, 9. Eminent Domain, 1, 2. Railboads, 8, 20.
Deijvert. See Damages, 7, 9, 10. Deeds, 1.
Demand. See Embezzlement, 2.
Dbmubbeb. See Appeal, 20. Municipal Cobpobations, 20. Plxad-
ING, 5, 6.
Deposits. See Banks and Banking, 1, 2.
Depot Qbounim. See Railboads, 25.
DESCENT AND DISTRIBUTION.
See Homestead.
If a parent leaves, by will, property to one of several chndren^
with no disposition over in the event of the termination of that
estate, and such child dies under age, not having been married,
such property, though testate as regards the parent, is intestate
as regards the child, and descends to the other children of the
testator, living at the death of the child, and to the issue of
such as are dead, by right of representation, under subd. 5,
sec. 2270, Stats. (1898). Bowker t?. Shields, 330
Dibectory Statutes. See Statutes, 2.
DiBCHABGB. See Masteb and Sebvant, 4.
Discbetion. See Cbiminal Law, 25. Costs, 1. Coubts, 4. Indict-
ment and Information, 2. Mandamus. Municipal Cobpoba-
tions, 1, 9, 11-14. Officbks, 5-7. Witnesses, 1.
Dismissal.
Of action. See Ejectment, 7.
Of appeaL See Appeal, 22.
Dissolution. See Cobpobations, 6-81.
DIVORCE.
In an action for divorce a finding that defendant wilfully deserted
plaintiff for the statutory period is held not so clearly against
the preponderance of the evidence as to warrant reversal of the
judgment Karnes v. KameSy 280
Documentaby Evidence. See EJvtdencb, 4, 6, 7.
DOMICILE.
Upon evidence that a son resided with his widowed mother until
his majority and thereafter returned to her home frequently
and made it his headquarters, and In the absence of any evi-
dence that he acquired or intended to acquire a different home
or place of residence, the trial court properly assumed that his
residence waa with hlfl mother. Miller v. Sovereign Camp, SOS
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DOWER.
Nature and requisites. See Ejectment, 8.
1. By "seisin" as the term is used in sec. 2159. Stats. (1898), re-
lating to dower, Is meant a fixed vested right of enjoyment of
the estate, either immediately or at the termination of an In-
termediate estate. Will of Prasser, 92
2. Sec. 2159, Stats. (1898). gives dower out of legal estates only, as
was the case at common law. Ihid.
3. A devisee who, under the will, took a vested remainder in fee
in land of the testator, subject only to a life estate and to a sub-
sequent trust limited to ten years, and who died after the life
estate had ended, was during his life "seised of an estate of in-
heritance" within the meaning of sec. 2159, Stats. (1898), and
such estate being a legal estate as against all persons except
the trustees, whose term was for years only, his widow was
entitled to dower. Ibid,
4. A full equitable title to real estate and like beneficial interest
therein, the holder of the legal title having no duty to perform
in respect to the property except to convey the legal title to the
owner of the equitable title, is an estate of inheritance within
the meaning of the dower statute. Harley v. Harley, 282
Assignment of dower,
5. If a widow with her children is left by the death of her husband
in possession of land in which she has a dower right she may at
law maintain that position without having her dower assigned.
Ihid,
6. A widow's dower in land will enable her not only to defend her
possession if left therein with her children by her husband at
his decease, without having such dower assigned, but whether
she has issue by such husband or not she may maintain eject-
ment to obtain such dower. Ibid,
DRAINa
Establishment: Draining navigable lake.
1. Sec. 1379—28, Stats. (Laws of 1907, ch. 646), authorizing drain-
age commissioners to condemn "riparian rights, rights of fiow-
age and water power," does not authorize the destruction of
bodies of water navigable in fact Johnson v, Eimerman, 327
Maintenance and repairs.
2. The petition for a writ of mandamus to compel drainage com-
missioners to repair a ditch did not show that they had money
available for that purpose, and did show that money was ob-
tainable therefor only by filing an annual report, securing Judi-
cial approval, and collecting assessments as provided in ch. 419,
Laws of 1905, and that no such report had been made although
it was the duty of the commissioners to make it Held, that
the writ would not issue to compel the making of the repairs.
State ex rel. Redenius v. Waggenson, 265
Due Process of Law. See Sunday Laws, 2.
Eassmeitts. See Ejectment, 1. Mills Ain> Milldams.
EJECTMENT.
Right of action.
1. Where the owner in fee has been wrongfully deprived of the pos-
session of land he may maintain ejectment to recover that pea-
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session, and It Is Immaterial whether such deprivation has been
caused by the exercise of an easement which wrongfully ex-
cluded him from possession, or otherwise. Le Blond v, PeshtigOy
604
2. Where land has been wrongfully taken for a highway, and the
only right which the owner may exercise over it is the right
to use it as a highway in common with all others, he has been
deprived of his possession. Il>id.
Defenses,
3. One cannot recover in ejectment unless he is entitled to posses-
sion at the time he commences his action. Harley v. Haxley,
282
4. A legal defense in ejectment is not pleadable as a counterclaim,
since otherwise by the forms of pleadings a defense raising is-
sues as matter of right commonly understood to be triable by a
jury could be so interposed as to require trial by the court.
Ihid.
6. If a person on a sufficient consideration agrees to convey real es-
tate to another as his property and puts such other into posses-
sion pursuant thereto, who subsequently, while in such posses-
sion, dies intestate, leaving a widow and children, the circum-
stances being such that such person could have been judicially
compelled to coijvey the land, pursuant to the agreement, to the
executory vendee had he lived and such person nevertheless
brings ejectment against the widow who is in possession with
her children, such facts are a good legal defense, and are plead-
able as an equitable defense as well to secure appropriate relief.
Ihid,
8. In the situation above stated the defendant may have the benefit
of the equitable defense and obtain such affirmative relief as to
fully protect her notwithstanding her children are not made de-
fcDdants, unless their presence in the litigation is necessary for
their due protection or in order that a full determination of all
the issues may be had. It id.
7. In the contingency suggested the court should not dismiss the ac-
tion nor render judgment in plaintiff's favor, but should, on his
own motion, order the necessary parties brought in unless some
one presently a party so moves. Ihid.
8. In the situation stated in number 6 the widow for her life or
widowhood is the equitable owner of the homestead, if there be
one, with the right to be clothed with the legal title to that
extent, and the owner of a dower right in the other lands, if
there be such, with the right to be clothed with such title as
will fully protect such dower right. Ibid.
EiLEOTioN between chants or causes of action. See Banks and Bank-
ing, 3. Indictment and Information, 2. Pleading, 2.
Blections. See Constittttional Law, 1, 2.
EMBEZZLEMENT.
See Criminal Law, 26.
1. There Is no material variance between an information charging
embezzlement of sixty dollars in money and proof that defend-
ant received a check for a larger sum in payment of sixty dol-
lars upon a debt to a corporation of which he was president;
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that he paid the difference to the debtor and deposited the
check In a bank in his own name; and that he afterwards drew
the money from the bank. Prinslow v. State, 131
2. Proof of a demand for money alleged to have been embezzled is
necessary only where a demand is necessary to show the fraud-
ulent conversion embraced in the offense. Jhid.
EMINENT DOMAIN.
Delegation of power. See Constitutional Law, 8, 9. Drains, 1.
Railroads, 2-21. Street Railways, 1, 2.
Same: Public purpose,
' 1. Whether the particular use for which property Is sought to be
taken by right of eminent domain Is public or private Is a ques-
tion the ultimate decision of which rests with the courts; but
this does not preclude the courts from according proper defer-
ence to legislative declarations as to what constitutes a public
purpose. In re Southern Wis. Power Co, 245
2. Where the legislature authorizes the building of a dam across
a river to improve the navigation thereof and also for the pur-
pose of creating hydraulic power, either of such purposes Is a
public one, so that the power of eminent domain may be legally
conferred upon the owners of the franchise. Ibid.
Proceedings to take property and assess compensation. See Rail-
roads, 2-23.
8. An alleged irregularity in condemnation proceedings, In that no
order appears of record directing the clerk to enter judgment,
will not, where no substantial rights of the appellant are af-
fected thereby, work a reversal of the judgment Wolf v. G. B.,
O., M, d S, W, R, Co, 337
4. The fact that the rights of a mortgagee were not adjudicated in
condemnation proceedings Is not good ground for disturbing the
judgment on appeal, where the parties had stipulated that the
mortgage claim should be paid out of the amount recovered.
Ibid.
6. In proceedings to condemn a strip of land for a railroad the
proper Inquiry with reference to damages recoverable for In-
jury to plaintiff's adjoining lands, was whether such lands were
depreciated In market value by the taking of the strip for that
purpose; but it was not prejudicial error In this case to permit
witnesses to be asked what in their opinion was the amount of
damage caused by the railroad cutting through plaintiff's land.
It appearing that counsel, court, and jury all understood that
the word "damage" referred to depreciation in the market value
of the part of plaintiff's land not taken. Ibid.
6. In condemnation proceedings witnesses who showed familiarity
with the value of lands amd the probable injury to such lands
from division thereof by a railroad and Its operation were quail-
fled to give opinion evidence on the subject. Ibid.
Remedies of owner of property. See Street Railways, 1, 2. Vendor
AND Purchaser, 6.
Entire Contracts. See Contracts, 6, 7. Master and Servant, 6.
Bqual Protection of Law. See Sunday Im^ws, 2.
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Equttt.
Jurisdiction. See Cancblultion of Instbuments. C!ontracts, 15,
16. CORPOBATIONS, 5-8. INJUNCTION. MiLLS AND MtTJ.DAMB, 3.
Sunday Laws, 6. Vendob and Pubchaseb, 4-6.
Costs. See Costs, !•
Estates. See Wills, 8-10.
Estoppel. See Banks and Banking, 2. Insubance, 4. Waiveb, 1.
EVIDENCE.
PreiumpHons. See Death. Domicile. Highways, 6, 7. Insubance,
10. Opficebs, 8. Schools and School Districts, 4.
1. Where mere circumstances are reasonably consistent with a
theory of violation of a penal statute and also inconsistent
therewith, the latter should prevail in the absence of corrobo-
rating evidence. McNaughton v, Des Moifies L. Ins, Co, 214
2. Although a man had recently come to this country and did not
speak English it will be presumed that he was a man of ordi-
nary intelligence. FoBnea v, Duluth fit. R, Co. 455
Burden of proof. Bee Insubance, 8. Masteb and Sebtant, 27.
Best evidence. See Indians, 4.
OircumetantUil evidence. See Cbucinal Law, 4-7, 12, 22. Homi-
OIDB, 2. JUBOBS.
Admissions: By agents. «
8. Unsworn statements or admissions of an agent are not evidence
in favor of the principal. T. D. Kellogg L, d M. Co. v. Webster
M. Co. 341
4. In an action by a grantee of land upon a covenant against in-
cumbrances to recover a sum paid In redemption of a tax cer-
tificate, declarations in a letter written by an agent of defend-
ant, found in his files, stating that another agent had bought
in the certificate in his own name and that defendant had made
a draft to make up the amount thereof, were mere self-serving
declarations and not admissible on behalf of defendant to show
that the certificate was taken by the agent for defendant and
that the transaction amounted to a pasrment of the taxes. Ibid.
6. Admissions of the agent who took the tax certificate in his own
name, that he took it for defendant, are not admissible against
plaintift under the doctrine that the admissions of an assignor,
made prior to the assignment, are admissible against the as-
signee. Plaintift having redeemed from the tax sale and hav-
ing sued for breach of the covenant against incumbrances, is
not claiming as assignee of the agent. Ibid.
Declarations. See Evidence, 3-5. Husband and Wife, 2. In-
dians, 4.
Documentary evidence: Ancient documents. See Highways, €.
Bame: Account books.
6. Entries in aoeount books are not, under sec. 4187, Stata (1898),
admissible as evidence of any item of money paid at one time
exceeding five dollars. T. D. Kellogg L. 4a M. Co. v, Webster M.
Co. 341
Same: Letters.
7. A letter on one of the regular letterheads used by the alleged
writers, which the addressee testified was received directly fr<»n
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them, was properly admitted In erldenoe though marked "copy"
and signed with a stamp instead of in writing. Stumm v. W. U,
Tel. Co. 528
Opinion evidence: Suhiects of expert testimony. See Eminent Do-
main, 6.
Same: Competency and examination of experts. See Eminent Do-
main, 6. Highways, 15.
S. In the trial of a case involving the examination of long book ac-
counts it is proper for expert accountants to give in evidence,
in summary form, the results of their examination of the books,
time and opportunity being granted to the opposite party to
use the books to test the correctness of such evidence and for
the purpose of cross-examination. Ruth v. State, 873
9. The opinion of a physician as to the physical condition of plaint-
iff, the necessity of an operation, and its effect, based on plaint-
IfTs testimony as to his condition and upon an examination
made by the witness after the injury, was competent, its weight
being for the Jury. Monaghan v. N. W, Fuel Co, 457
10. In an action for personal injuries, a question to an expert wit-
ness as to how the injury affected the plaintiff was proper, the
word "Injury" being used to designate the contusion, bruise, or
trauma in question, and not the invasion of legal rights which
might have occurred at the time ef the accident Dralle v.
Reedsburg, 319
11. An objection to a long hypothetical question on the ground that
it does not contain all the elements of fact testified to will be
considered on appeal only so far as it specifies the facts claimed
to be omitted. Ibid,
12. In a hypothetical question as to whether the injury sustained by
plaintiff was a sufficient producing cause of her physical condi-
tion as found by the witness, it was not necessary to include the
fact that plaintiff had given birth to seven children, all of whom
died in infancy or shortly thereafter. Jbid.
Weight and sufficiency. See Banks and Banking, 1, 2, 4. Con-
SPiBAOT. CoNTBAora, 1, 2. Cbiminai. Law, 2, 3, 10, 11. Di-
voBCE. Domicile. EhrrPENOS, 9. High ways, 11. Indians, 4.
Insi/ranoe, 6. Intoxicating Liquors. Master and Servant,
26. Navigable Waters, 1. New Trial, 1. Rape. Sales, 6.
Street Railways, 8. Subscriptions, 3. Tax Titles, 1, 4, 5.
Vendor and Purchaser, 7. Wills, 1, 2.
13. It requires an extraordinary case to authorize the court to treat
sworn testimony as manifestly impossible and untrue. Bates
V, C, If. d at, P. R. Co. 235
Exceptions. Seo Appeal, 1-4, 10. Deeds, 2. InDiOTMSirT ajid In-
formation, L
EXCEPTIONS, BILL OP.
See Appeal, 2, 8. Costs, 4.
After the time for appeal fr<»n an order or judgment has expired
the court should not, in the absence of stipulation of the par-
ties, settle a bill of exceptions covering the proceedings which
led up only to the making of such order or the rendition of such
a judgment Nelson v. A. H. Btange Co. 657
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Excessive Damages. See Damages, 11-15. Hitsband and Wife, 5.
Executors and Administrators. See Descent and Distribution.
Indians. Wills.
Executory Contracts. See Contracts, 3-11. Damages, 7-10.
Exemplary Damages. See Damages, 5. Husband and Wife, 4, 5.
Exemptions. See Pensions. Taxation, 1-3.
EJxpert Testimony. See Eminent Domain, 5, 6. Evidence, 8-12.
Highways, 15.
EXTRADITION.
One who has been brought into this state by extradition proceed-
ings based on a criminal charge is not subject to arrest in con-
tempt proceedings to enforce compliance with a prior civil judg-
ment against him, until he has had an opportunity to return
to the state from which he was extradited, even though he was,
when he absconded, a resident of this state and had not since
acquired a residence elsewhere, and the court in which said
judgment was rendered had, before his departure, obtained ju-
risdiction both of the subject matter of the action and of his
person. State ex rel. Hattabaugh v. Boj/nton, 89
False Representations. See Cancellation of Instruments. Con-
TitACTS, 14. Insurance, 4. Vendor and Purchaser, 8.
Fences. See Railroads, 25-31.
FiNDTNGS OF Fact. See Appeal, 6, 11-17, 28. Divorcb. Mills ahd
MiLLDAMS, 5, 6. Navigable Waters.
Fires. See Insurance, 1, 2.
FOOD.
See Municipal Corporations, 7.
1. In a prosecution under sec. 4607, Stats. (Supp. 1906; Laws of
1905, ch. 138), for having in possession adulterated milk with
intent to sell it, the state need not allege or prove that it was
not to be sold as and for "skimmed milk," within the exception
stated in sec. 4607a. Splinter v. State, 567
2. Having in possession seventeen cans of milk with intent to sell
the same, in six of which cans the milk contained less than the
prescribed percentage of milk fat, was a violation of the stat-
ute, although the average of the entire lot was above the legal
standard. IMd.
FRAJvcmsES. See Constitutional Law, 10, 11. Corporations, 2-4.
Eminent Domain, 2. Navigable Waters. Street Railways, 1.
FRAUD.
See Cancellation of Instruments. Plbdob.
1. One who makes representations to another of material facts for
the purpose of inducing that other to enter into contractual
relations with him and which are liable to accomplish the pur-
pose without want of ordinary care on the part of such other,
is bound, not merely not to act negligently, but at his peril to
know whereof he speaks. Kathan v. Comatock, 427
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t. One not himself knowing the facts involved may reasonably act
on representations by another who desires to enter Into con-
tractual relations with him» as to conditions not presently ob-
servable. JMd,
Privolous Pleading. See Pleading, 4.
Future Damages. See Damages, 3, 4, 6.
General City Charter. See Schools, 1, 2.
Gifts. See Wills, 5, 6.
Good Faith. See MrNiciPAL Corporations, 13.
Guardian and Ward. See Insane Persons.
HABEAS CORPUS.
In a proceeding by liabeas corpvs to procure the discharge of one
held for trial after a preliminary examination,* the court can
only examine the evidence sufficiently to discover whether there
was any substantial ground for the exercise of judgment by
the committing magistrate. Lundstrum v. States 141
HEALTH.
See Food. Municipal Corporations, 7.
1. Hf»^lth officers who nrp emeotpd to arromr)Msh results must nec-
essarily possess largre powers and be endowed with the right
to take summary action, which at times trenches closely upon
despotic rule. Utate ex rel, ^owotny t>. Milwaukee^ 38
2. Executive boards and officers who can deal at once with emer-
^^.luios under general principles laid down by the lawmaking
body must exist if the public health is to be preserved. Ihid.
Heirs. See Indians. Insane Peusons.
HIGHWAYS.
Definition: **PubUc highway,**
1. The term "public highway," in the broad ordinary sense, Includes
every common way for travel by persons on foot or with vehicles
rischtfully used on highways, which the public have the right to
use either con iltionally or unconditionally. Weirich v. State, 98
2. The term "public highway" in a limited sense means a way for
general travel, which is wholly public. Ibid.
3. In the general sense the term **publlc highways" includes toll
roads; in Its limited sense it does not Ibid,
4. The term "public highway" in a general law should be regarded
as having been used by the legislature in its general sense un-
less there is some efficient reason for believing it was used in
the limited sense. Ibid,
6. A general law, regulating the operating of automobiles upon pub-
lic highways in the interest of public safety, rather suggests
use of the term "public highway" in the general than the par-
ticular sense, since the danger of personal Injury is quite as
great and Immunity therefrom is quite as important as to trav-
elers on the one as the other. Jbid,
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Estahlishment hy statutory proceedings: Presumptions: Width: Line
of travel. See EJjectment, 2.
^. A petition to the road commissioners In 1847 for the laying out of
a highway was recorded in the town records, as was also a sur-
vey headed "Survey of a public road for the town of O.," defi-
nitely describing the line of the road throughout, and signed
by the surveyor and the commissioners. These were the only
records as to the highway, but the road was opened and traveled*
at least partially, upon the line described. Held that, in view
of the lapse of time, the survey must be regarded as an ancient
document; and all proceedings leading up to the making of
such survey will be presumed to have been regularly taken pur-
suant to Laws of 1843, p. 46, §§ 1, 2. It will be presumed, there-
fore, that the petitioners were freeholders residing In the town,
although the petition does not show that fact, and that an order
laying out the road had been regularly made. Olwell v, Travis,
547
'7. The established width of public hlghwajTS at the time In question
and since having been four rods, the road will be deemed to
have been laid out of that width, with the line described in the
survey as Its center. Ibid.
8. The fact that at a certain point a highway was traveled on one
side only of the center line thereof as shown by the survey, did
not operate to change the limits of the road as laid out. IMd.
9. Slight deviation of travel from a highway as laid out, and the
maintenance of fences at irregular distances from the center
line, though continued for more than twenty years, did not re-
sult In abandonment of any part of the highway or In the ac-
quirement of title by user to any land outside of its limits,
where there had never been any attempt to have the fences
placed on the true line, but mere passive acquiescence in their
remaining where placed, and no dedication of land for the high-
way outside of its limits as laid out. Jbid.
BeguJation of use and travel. See Automobiles.
Same: Railroad crossings. See RiLiLBOADS, 22-24.
Same: Obstructions: Personal injuries.
10. Town authorities have the right to deposit material in the high-
way at convenient and proper places for the purpose of repair-
ing the same, in the exercise of ordinary care; but they have no
right to so place such material as to render the highway dan-
gerous to travelers, and permit It to remain an unreasonable
time. Berg v. Auburn, 492
11. Findings in a special verdict to the eflTect that an iron pipe two
and a half feet in diameter, twelve feet long, painted red, which
the defendant town had placed about eight feet from the trav-
eled track and permitted to remain there for eleven days, was
an object likely to frighten horses of ordinary gentleness, and
that defendant was negligent in allowing it to remain where
it did, are held to be sustained by the evidence. Ibid,
12. The findings above mentioned, together with findings that de-
fendant's negligence was the proximate cause of plalntiiTs in-
jury, that plaintift was not guilty of contributory negligence,
and assessing his damages, are held sufficiently to have covered
the material controverted Issues, especially in the absence of
any request for the submission of other questions. Ibid.
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Same: Notice of injury.
13. In an action for Injuries caused by defect In a highway the com-
plaint, notice, and claim should be construed together as a
pleading, and so construed the allegations, stated in the opinion,
are held sufficient to permit the admission of evidence of in-
juries to plalntifTs side, back, and ribs, and also of an atrophy
or wasting of the muscles of the back, causing curvature of the
spine and having a tendency to increase. Dralle v. Reedshurg,
319
14. The notice required by sec. 1339, Stats. (1898), need not specify
the particulars In which the party is Injured nor contain any
description of the injuries. Ibid.
Same: Reeepiian of evidence,
15. It was not error to exclude the opinion of a witness as to whether
it would have been possible or practicable for plaintiff to drive
over a part of the highway lying outside of the traveled track
at the place of the accident, in the absence of evidence that
plaintiff had an opportunity to leave the traveled track and had
such knowledge of the defect therein as would require a person
exercising ordinary care to leave the track and drive outside
thereof. Ibid.
Same: JnMtructions to jury.
16. An instruction that, In determining whether or not the highway
was defective at the place in question, the jury should consider
the amount of labor and money which must be expended to ob-
viate the alleged defect, and whether such expense would be so
excessive as to render the change Impossible or impracticable,
is held (whether correct in law or not) to have been properly
refused as inapplicable to the facta in this case. Draile v.
Reedshurg, 319
17. Refusal to instruct the jury that plaintiff was not entitled to re-
cover for loss of her time was not error in this case, in view of
other instructions given and of the fact that no claim for sueh
recovery was made and no evidence offered on the subject Ihid.
[18. Whether, under sec. 1339, Stats. (1898), as amended by ch. 305,
Laws of 1899, providing that a husband shall have no right of
action on account of injuries received by his wife by reason of
a defect in a highway, a wife may recover damages for loss of
her time, not determined.] Ibid,
Highway Cbo88ino& See Railroads, 22-24.
HOMESTEAD.
See ELrFxmfENT, 8.
The homestead right which descends as such on the death of a
husband leaving a widow and children, attaches to the home
property even though the husband had only the full equitable
title thereto. Harley v. Barley, 282
HOMICIDE.
Evidence: Admissibility. See Criminal Law, S.
1. The rejection of evidence offered to prove that a person other
than the accused committed the particular homicide in ques-
tion is not harmful error, where it is manifest from the whole
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evidence that such person was In no way connected with the
offense. In that he was not In the vicinity of the place thereof
at the time of the occurrence. Spick v. State, 104
2. In a prosecution for a criminal homicide dependent upon di^
cumstantial evidence, as bearing on the question of motive of
the accused for doing the deed of which he is accused. It Is
competent to show that prior to the homicide the deceased re-
ported that the accused had, to his knowledge, committed an-
other offense, In the absence of any direct evidence that the
accused knew who was the informant, if, from all the circum-
stances, it is reasonably inferable that he did know in fact, or
had good reason to believe and did believe, the deceased to be
his accuser; consideration of such evidence to be dependent
upon belief of the jury that the defendant did, in fact, know or
believe before the homicide that the deceased was the informer.
Ihid.
3. Dodge, J., and WrxsLOW, C. J., dissenting, are of the opinion
that it was prejudicial error in this case to admit evidence that
the deceased had reported to a third person that the accused
had committed another offense, — such evidence being pure hear-
say and there being no other evidence that the accused had com-
mitted such other offense and no evidence warranting an infer-
ence that he knew or suspected that the d^eased had given
such information. Jhid.
Trial: Verdict.
4. In case of a criminal homicide manifestly committed by an act
imminently dangerous to human life, and indicative of deprav-
ity of mind and disregard of human life, so characterized as
to show the grade of the offense to be murder in the first or sec-
ond degree, any circumstance sufficient, reasonably, to at least
cause reasonable doubt as to whether the act was pursuant to
a formed design to take human life, warrants finding a verdict
of guilty of murder in the second degree. Ibid.
6. In case of belief from the evidence beyond a reasonable doubt
that the accused is guilty of the offense of criminal homicide
In either the first or second degree, but there is reasonable un-
certainty between the two degrees, though belief of guilt of the
offense at least In the second degree, a verdict of guilty in such
, degree is proper. Ibid.
HUSBAND AND WIFE.
Torts: Personal injuries to wife. See Highways, 18.
Enticing and alienating: Parties: Evidence: Damages,
1. In an action by a wife for alienation of her husband's affections
the husband is not a proper party defendant, since he was not
a joint tortfeasor with those who wrongfully brought about his
state of mind, and cannot be held to have joined or confederated
with the active parties in the wrong constituting the cause of
action. White v. White, 538
2. In such action the plaintiff may testify to declarations by her
husband as to offers made to him by defendants to Induce him
to abandon her. Ibid,
8. In determining whether parents maliciously conspired to alienate
their son's affections from his wife, the evidence should be con-
sidered in view of the rights of the parents and their obliga-
tions respecting their child's welfare and happiness. Ibid.
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4. In an action by a wife for a malicious conspiracy to alienate the
affections of her husband, punitory damages may be awarded,
even though one defendant Is without property and the other
is wealthy. Ibid.
5. In an action by a wife for alienation of her husband's affections
an award of $5,000 compensatory damages and $1,500 punitory
damages is held not excessive. Ibid.
Hypothetical Questions. See Evidence, 11, 12.
IlXEQITIMATX CHILDREN. See INDIANS, 3, 4.
Impeachment of witnesses. See Criminal Law, 15, 16.
Improvements. See Municipal Corporations, 17-27.
Incompetent Persons. See Insane Persons. Wills, 1.
INDIANS.
1. In proceedings for administration of the estate of an Indian al-
lottee of lands, the title to which was held in trust by- the fed-
eral government, there being other property warranting the ad-
mlntetratlon, the parties by stipulation submitted to the county
court the question whether a certain person was the son and
sole heir at law of the deceased. Held, sufficient to give the
court jurisdiction. Smith v. Smith, 599
2. The order or judgment of the court In such a case does not trans-
fer the title or disturb the possession of the allotted lands; and
the United States, as trustee, may recognize or refuse to rec-
ognize it as evidence, conclusive or prima facie, of heirship.
Ibid.
Z. Under a federal statute (26 U. S. Stats, at Large, 794. ch. 383)
making illegitimate children lawful heirs of their Indian father,
paternity is to be established by a preponderance of evidence,
and need not be established beyond reasonable doubt nor by
evidence clear and convincing beyond reasonable controversy.
Ibid.
4. In such a case declarations of the deceased mother and of the
alleged deceased father respecting the paternity of an illegiti-
mate are competent, and when they are the best evidence the
nature of the case will admit of, and are not overcome by other
more convincing evidence, they are sufficient. Ibid.
B. The construction given to the federal statute (26 U. S. Stats, at
Large, 794, ch. 383) in In re Heirs of House, 132 Wis, 212. is
adhered to. Jbid.
INDICTMENT AND INFORMATION.
Formal requisites. See Sunday Laws, 3, 5.
Election between counts. See Banks and Banking, 3.
Bequisites and sufficiency. See Criminal Law, 19.
1. Where an exception is stated in a separate section of the statute
and constitutes no essential part of the definition or descrip-
tion of an offense, it need not be negatived by the prosecution,
but is a matter of defense. Splinter v. State, 567
2. The matter of requiring prosecuting officers in criminal cases to
elect on what count of an information they will prosecute the
cause Is very much in the discretion of the trial court Ruth v.
State, 373
Tariance. See Embezzlement, 1. Food, L
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INJUNCTION.
' See Appeal, 5. MmnoiPAL Oorpobationb, 20-22. PLCADnto, 6.
Sunday Laws, 5.
1. The facts stated In the opinion did not entitle plaintiff to the in-
terference of equity to prevent either irreparable injury or a.
multiplicity of actions at law. Le Blond v. Peshtigo, 604
2. The averment that plaintiff has been permanently deprived of
the use and enjo3rment of the strip of land in question is con-
strued as equivalent to a statement that she has been deprived
of the possession of said strip; and it appearing that what she
seeks to recover is the possession of the land, not of a mere ease-
ment over it, she has an adequate remedy at law la an actioi»
of ejectment Ilfid,
INSANE PERSONa
Inquisitions. See Conspibaot.
Mental capacity. See Wills, 1.
€hMfrdianship: Refusal of appointment: RiglU of appeoL
1. Under sec. 3976, Stats. (1898), any relative or friend of a person:
alleged to be mentally incompetent may Institute a prooeedinsr
In the county court for appointment of a guardian, but under
sec 4031, besides certain specified official persons, only a "per-
son aggrieved" by the determination of the court can appeal
therefrom. Banhom v. Carpenter, 572
2. No person is "aggrieved," within the meaning of said sec 4031,
unless the determination affects adversely his legal rights;
mere affront to desire or sentimental interest being insufficient.
Ibid.
t. Next of kin or heirs apparent have no legal rights or interest in
the property of a living relative. Ibid.
4. Refusal to appoint, upon the petition of nonresident adult sister,
a guardian for an alleged incompetent adult residing in this
state, did not affect any legal rights of the petitioner, she hav-
ing no legal right to control the custody or conduct of the al-
leged incompetent, no legal right to support from, or legal duty
of care or support to, the latter, and no legal rights in or to the-
property of the latter. Ibid.
INSTRUCTIONS TO JURY.
1. Requested instructions refused are not reviewed in the absence
of exceptions to such ruling. Monaghan v. N. W. Fuel Co. 457
2. No error can be assigned on instructions relative to a question
determined in appellant's favor. Lehman v. O., 8t. P., M. d
O. R. Co. 497
t. A proper instruction, where conviction depends partly or wholly
on circumstantial evidence, is: The accused is entitled to an ac-
quittal unless the evidence satisfies the jury to a moral cer-
tainty of the existence of all the material circumstances; that
they are consistent with guilt and inconsistent with any other
reasonable hypothesis. Spick v. State. 104
4 On the degree of certainty of guilt required for a conviction it is-
sufficient to instruct the jury: In order to warrant a convictloik
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each and all of the material circumstances and the fact of guilt
should be established to the satisfaction of the jury beyond a
reasonable doubt. Ibid,
6. A jury may be instructed that the evidence on the part of the
state tends to establish its claim and that on the part of the
defendant the contrary, it being made plain that the real right
of the matter is wholly for them to determine from all the evi-
dence produced. Ibid,
6. A Jury should not be instructed that if they believe from all the
evidence that the testimony of any witness is false they may
reject it, nor that whether to reject such testimony or not is
conditioned upon whether the same is corroborated by other
testimony. ' Ibid.
7. In Instructing the Jury, a suggestion that belief upon the whole
evidence that the testimony of any witness is false precludes
its being corroborated by any credible evidence so as to be en-
titled to be believed, should be avoided. • Ibid.
8. It is proper to admonish a Jury of the importance of agreeing
upon a verdict, care being taken not to suggest which way is
proper or to go farther than to stimulate appreciation of Jury
duty. Ibid.
9. Reading the information, followed by an instruction, stated in
the opinion, is held not prejudicial. Ruth v. State, 373
10. It is not fatal error to omit instructions relative to circumstantial
evidence, unless proper instructions in respect thereto are re-
quested. Spick V, State, 104
11. Instructions relative to a defective highway, stated in the opin-
ion (whether correct in law or not), are held properly refused
as inapplicable to the facts In the case. Dralle v. Reedsburff,
319
12. Refusal of instructions not error in view of other instructions
given and the lack of evidence on the subject Ibid.
13. Instruction not erroneous because the word "could" was used
rather than the words "ought to." Lehman v. C, St. P., M. d 0.
R. Co. 479
14. Failure to instruct on a given subject is not error in the absence
of request therefor. Lind v. Uniform S. d P. Co. 183
15. In the absence of a request that the words "other things" used
In the charge be limited to things shown by the evidence, their
use id not prejudicial. Monagh<m v. N. W. Fuel Co. 457
16. Definitions of proximate cause approved. Monaghan v. N. W.
Fuel Co. 457; Stumm v. W. U. Tel. Co. 528
17. It is not error to instruct the Jury to consider whether a fence
would have "prevented or tended to prevent" a child from en-
tering on the right of way of a railroad. Schwind v. C, M. d
St. P. R. Co. 1
18. An instruction, stated in the opinion, is held prejudicially errone-
ous as being argumentative and invading the province of the
jury. Bodenheimer v. C. d N. W. R. Co. 623
19. Instructions relative to loss of employment consequent on failure
to deliver a telegram held free from error. Stumm v. W. U.
Tel. Co. 528
20. Charge that the testimony of a witness is negative in character
and not entitled to the same weight as that of another is er-
roneous. Bodenheimer v. C, d N, W. R. Co. 623
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INSURANCE.
FiBB.
Bisks and causes of loss: Direct loss or damage hy flre,
1. A fire built In a furnace with unsuitable material, which became
In a measure uncontrollable and developed excessive and ex-
traordinary heat, so Intense in the chimney as to char wood-
work, wall paper, and furniture, and which caused volumes of
smoke and soot to escape through the registers and injure per-
sonal property in the house, was a "hostile" flre although there
was no ignition outside of the furnace; and the damage to the
personal property was "direct loss or damage by fire" within
the meaning of the Wisconsin standard flre insurance policy.
0*Connor v. Queen Ins. Co, 388
2. The question whether damage to insured property was caused by
fire is ordinarily one for the jury, but Its determination by the
court is not error where the facts are practically undisputed.
Ibid.
Life.
Proofs of death: Waiver,
3. Refusal of a benefit association to recognize any claim based on
the presumption of death resulting from absence was a waiver
of its right to insist upon proofs of death as a condition prece-
dent to an action on the benefit certificate. Miller v. Sovereign
Camp, 605
Premiums: Rebating by agency contract: Estoppel,
4. A life insurance company having given a person with his policy
an agency agreement, stipulating to pay him annually a pro
rata part of a specified percentage of all premiums paid for the
ensuing ten years on business written in specified territory,
such payment to be made within thirty days after the anni-
versary date of the agreement, coinciding with the last day for
paying annually a policy premium with a specified penalty to
prevent lapsing, and the premiums having been made payable
annually with an option to pay quarterly, and the assured hav-
ing been duly specifically notified of the due date and amount
of the second policy premium, the first apportionment under
the contract being applied therA)n, and he having paid accord-
ingly, and due notice according to custom having been given
as to the third premium and second agency apportionment and
payment made of the quarterly amount, less such apportion-
ment, and the company, while retaining the money, having
claimed that only one quarter of the agency apportionment was
applicable on a quarterly premium payment, and demanded pay-
ment of an additional amount equal to three fourths of the
agency apportionment within the thirty days for payment with
the added penalty, which demand was not compiled with, and
thereupon the company having Invited the assured to apply
for reinstatement under the agreement in the policy in that
regard, representing that, by the contract, he was entitled to
credit of only one quarter of such apportionment on a quar-
terly premium, and application having been made accordingly
and allowed, the additional payment being the same as the un-
paid agency amount due and payable as aforesaid:
(a) The giving of the premium notice In the second Instance,
as In the first, estopped the company from claiming that the en-
tire agency apportionment was not applicable upon the amount
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payable on the policy within the time stipulated for payment of
such apportionment
(b) The premium notice showing application of the agency
apportionment in the second as in the first instance, consti-
tuted an actual payment of the agency apportionment fully exe-
cuting the rebating contract, if such there were, for the quarter
the policy premium was payable.
(c) The notice to the assured after payment of the amount,
unsatisfactory to the company, demanding only an additional
amount equal to three fourths of the agency apportionment,
waived the penalty for not making payment on the exact due
date of the premium If a penalty were thereby incurred.
(d) There having been due and payable to the assured on
the contract by the day limited for paying the policy premium,
an amount equal to the balance claimed by the company on the
policy, it was bound to apply the credit if necessary to prevent
a lapsing, and the application should be treated as having been
in effect made by operation of law.
(e) The assured having acted on the false representations
of the company in submitting to its claim that the policy had
lapsed was not affected by the law of surrender of rights by
acquiescence. McNaughton v. Des Moines L. Ins, Co, 214
Same: Enforcement of contract.
6. If an insurance company makes, ostensibly, an agency contract
with a policy-holder at the date of his policy, all as one trans-
action, for the purpose, in fact, of rebating the cost of the in-
surance, stipulated in the policy, such contract is unenforceable.
McNaughton v. Des Moines L. Ins, Co. 214
€. The circumstance of a life insurance company contemporaneously
making an insurance agency contract with, and issuing to a
person a life policy, the contract stipulating for payment to the
assured for services, not definitely mentioned except by refer-
ence to an application for such contract, not produced, of a pei^
centage each year of the premiums received in such year for
insurance written in specified territory, is not of itself sufficient
to show with reasonable certainty that the purpose of the con-
tract is to circumvent the statutory prohibition against rebat-
ing policy premiums. Ibid.
7. An executed agreement for rebating a policy premium contrary
to the statute on the subject renders the rebater liable to the
statutory penalty but does not render the policy void or void-
able. Ibid.
8. In case of an insurance company seeking to reap advantage from
its own turpitude as to violating the law against rebating, for
the purpose of avoiding a policy agreement, the burden is upon
it to establish the facts in that regard to a reasonable cer-
tainty. Ibid.
Lapse of policy,
9. If a person, erroneously supposing his policy to have lapsed, his
view in that regard being induced in whole or in part by a false
position on the part of the insurer, applies successfully for re-
instatement under the clause of the policy permitting it, he is
not precluded thereby from thereafter insisting that the policy
did not in fact lapse. McNaughton v. Des Moines L, Ins. Co.
214
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Same: Application of earninffs under agency contract.
10. If money Is absolutely due and payable from an Insurance com-
pany to a policy-holder before the due date of his premium the
company should apply the credit if necessary to save the policy,
and in judicial proceedings involving the matter such applicar
tion should be conclusively presumed to have been made, espe-
cially if such had been the custom of the company as to the
particular policy. McNaughton v. Des Moines L. Ins, Co, 214
Interest. See Attachment, 1.
iNTKBtJRBAN RAILWAYS. See STREET RAILWAYS. 1, 2.
INTOXICATING LIQUORS.
A conviction of selling intoxicating liquors without a license Is
held to be sustained by the evidence in this case. Markley v.
State, 137
Intoxication. See Master and Servant, 28.
JoiNDSB OF Cavses OF ACTION. See Corporations, 7. PLBADma, 8.
JUDGMENT.
Conclusiveness of adjudication. See Tax Titles, 9.
Bame: Presumption as to preliminary proceedings.
In a proceeding in a court of general jurisdiction, where no ques-
tion of want of Jurisdiction is raised, it will be presumed in the
absence of a contrary showing that the necessary steps were
taken for the entry of judgment, although not all such steps
necessary to regularity appear of record. Wolf v. Q. B,, 0., M.
d 8. W. R. Co. 837
Judgment Roll. See Appeal, 1.
Jurisdiction. See Certiorari. Indians. 1. Judgment.
JURORS.
Competency.
A person called as a juror who discloses on the voir dire conscien-
tious scruples against rendering a verdict on circumstantial evl-
dence alone, may properly be rejected as incompetent* with or
without objection by counsel. Bpich v. Btate^ 104
Fees. See Costs, 2.
JUSTICES' COURTa
Appeal: Review: Evidence considered.
The circuit court when required to give judgment pnrsaant to
sec. 3769, Stats. (1898), should act solely upon the evidence
upon which the court below acted, not considering any ruled
out by the latter as improper or any conjecture as to evidence
which might have been given by answering questions not per-
mitted, because thought to be objectionable. Luckov) v. Boett-
ger, 62
Justification. See Conspiracy.
Landlord and Tenant. See Mills and Milldams, 8. Partition, 8.
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LARCENY.
See Malicious Prosecution.
1. Although the maker of a negotiable note had perhaps a right to
rescind, for failure of consideration, an entire contract as part
of which such note was executed and delivered, yet, until such
rescission at least, the note was the property of the payee and
was subject of larceny. Farrell v, Phillips, 611
2. A felonious intent to deprive the possessor of the thing taken
being essential for larceny, if one openly takes property under
the honest though mistaken belief that he himself has title,
the act ordinarily will not be larceny; but the claim of title
must be at least colorable and be made in entire good faith.
A taking by artifice or fraud or accompanied by acts of con-
cealment will raise a strong inference of felonious intent Ihid.
Law op the Cass. See Appeal, 27.
License. See Intoxicating Liquobs. Municipal Corporations, 7.
Life Insurance. See Insurance, 3-10.
Limitation of Actions.
Limitations applicable to particular actions. See Cancellation of
Instruments, 1.
Computation of period of limitation. See Mills and Milldams,
7-9. Street Railways, 1.
Operation and effect of bar. See Mills and Milldams, 3-9. Nati-
GABLE Waters, 3.
Local Laws. See Constitutional Law, 1, 2, 5-7.
Malice. See Conspiracy. Malicious Prosecution.
MALICIOUS PROSECUTION.
Probable cause. See Trial, 5.
In an action for a malicious prosecution of plaintiff for larceny
of a note, under the evidence, stated in the opinion, it is held
that defendant had probable cause for the prosecution. Farrell
V. Phillips, 611
MANDAMUS.
Nature and grounds. See Municipal Corporations, 13, 14.
Subjects and purposes of relief. See Drains, 2.
1. Although relator may have a clear legal right to have an act
done, mandamus will not issue to compel performance by an-
other unless it is the clear duty of the latter to perform at the
time and in the manner demanded. Btate ex rel. Redenius v.
Waogenson, 265
2. Where the right to have an act done at the time and in the man-
ner demanded is dependent on some other act having been done
or some condition existing, the petition for mandamus must
show that such preliminary act has been done or condition
created. Ibid.
8. Where the doing of an official act requires the expenditure of
money, performance will not be coerced by mandamus in ab-
Bence of a showing that money therefor is presently available.
Jbid.
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4. Mandamus will not He to control or review the exercise of the^
discretion of any court, body, or officer when the act performed
is judicial or 9W(wi-judiclal; although it may be invoked to cam-
pel the exercise of such discretion. State ex reh Wagner v.
Dahl, sot
Mandatoby Statutes. See Statutes, 2.
MASTER AND SERVANT.
TTie relation: Creation and existence,
1. Where, either by necessary implication or by the terms of his.
contract of service, a railway employee is required to travel on
the trains of the company to or from the place or places of hia
active duty, he is deemed to be in the service of his employer
while 80 traveling, if he be in the proper place upon the train.
Kunza v, C. d K, W. R. Co. 440
2. If such an employee knew or ought to have known that he had
no right to ride on the engine, but voluntarily and without per-
mission went there for his own purposes, he could not be con-
sidered as an employee while so riding, but as a trespasser, or
at most a licensee. Ihid,
8. Whether in this case the plaintiff, a pumper whose duties re-
quired him to ride back and forth daily on trains between pump-
ing stations, and who was injured by a collision while ridings
on the engine, was justified in believing that he was entitled to
ride on the engine if he chose to do so, is held, upon the evi-
dence, to have been a question for the jury. Ihid.
4. If in such case plaintiff believed and was justified In believing
that he was entitled to ride on the engine while traveling be-
tween stations as his duties required, he was while so riding a
servant of the railway company and "engaged in the line of his
duty as such." within the meaning of subd. 2, sec 1816, Stats.
(Laws of 1907, ch. 254), even though he at times voluntarily
or by request did firing for the engineer; and the jury should
then determine whether he was guilty of contributory negli-
gence in so riding instead of riding In the caboose as he might
have done on the occasion in question, and, if so, whether such
negligence was slighter or greater than the negligence of an-
other employee which caused the collision. Siebegkeb, J., dis-
sents in part, being of the opinion that, upon the established
facts, as matter of law the plaintiff had a right to ride on the
engine and was not guilty of negligence in so doing. Jhid.
Bame: Termination and discharge,
5. Under proof that a contract of empl03rment was not terminated
because plaintiff failed to comply with any of its conditions or
obligations, nor because he failed to conduct the business in a
satisfactory manner, it is no defense to an action for its breach
by the employer that the contract authorized discharge for such
failures. Richey v. Union Central L. Ins, Co. 486
Services and compensation: Entirety of contracts,
6. If a contract of employment is for a term and is silent as to the
time of payment, although the rate of compensation Is at so
much a day, week, or month, it is entire and indivisible and
full" performance must precede a right of recovery, in the ab-
sence of circumstances showing that the contract was not un-
derstood by the parties as entire; but if the contract contains.
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language which obligates the employer to make partial pay-
ments of compensation it is divisible and action may be main-
tained on instalments as they become due before performance
is completed. Tilton v, J. L. Gates L, Co, 197
Master's liahility for injuries to servant: Tools^ machinery, and appli-
ances: "Simple tools.**
7. A pick or hammer used by locomotive firemen for breaking up
coal and consisting of a wooden handle about three feet long
Inserted in an iron cross-head having a hammer face on one end
and pick point on the other is a simple tool which the master is
not bound to inspect to ascertain the development of defects or
disrepair in the course of its use. Lehman v. C, 8t. P., M. d O.
R. Co, 497
8. In an action by a locomotive fireman whose eye was injured by a
piece of coal flying into it when he struck a large lump of coal
with a pick or hammer which was defective by reason of its
face having become worn and rounded by use, the question
whether, in seizing the hammer and striking the blow without
looking at it at all, the plaintiflt exercised ordinary care, was a
question of fact for the jury. IMd.
9. In the rule that a servant is not bound to inspect machinery and
appliances furnished by the master, but may rely upon the mas-
ter to furnish safe tools and appliances, the word "inspect" re-
fers to a somewhat careful or critical examination; and a serv-
ant may be negligent in using a tool without even glancing at
it, if, as a matter of fact, ordinarily prudent and careful persons
are accustomed to look at such tools before using them under
similar circumstances. Ibid.
10. It cannot be held in such a case that because the servant did not
know of a defect in the tool he could not have anticipated that
an injury might result therefrom and therefore that his omis-
sion to look at it did not proximately contribute to an injury so
resulting. He must be deemed to have known that which he
would have learned had he exercised ordinary care. Ibid.
[11. Whether findings in a special verdict, to the effect that a simple
tool which a servant was using when injured was in a defective
condition and that such defective condition was the proximate
cause of his injury, were sufficient or Insufficient to convict the
master of negligence, not determined.] Ibid,
12. If in such a case the special verdict was insufficient upon the
question of defendant's negligence, the court, having rendered
judgment for the defendant, will be deemed to have determined
npon the evidence that defendant was not negligent. Sec. 2858m,
State. (Laws of 1907, ch. 346). Ibid,
13. An instruction to the effect that if the tool plaintiff was using was
defective, and if by the exercise of ordinary care he "could"
have examined it and observed its condition before using it, he
was guilty of contributory negligence, was not erroneous because
the word "could" was used rather than the words "ought to."
Ibid.
Same: Machinery. See Masteb and Servant, 29, 32.
14. To show that there was no negligence in failing to equip with a
splitter a ripsaw at which plaintiff was working when injured,
a witness for defendant testified that it was impracticable to
equip the saw with a splitter attached in a particular way. On
the cross-examination plaintiff was permitted to show by the
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witness that after the accident a splitter was attached to the
saw In another way. Held proper. It not being necessary to
limit the cross-examination to the exact words of the direct
examination, and the evidence being admitted only for the pur-
pose of showing the practicability of so equipping the saw.
Nelson v. A, H, Stange Co. 657
Same: Unsafe places for work. See Carbxebs. 1, 2.
15. The rule requiring the master to furnish his servant with a rea-
sonably safe working place calls only for a working place free
from all dangers which a person In the circumstances of the
master. In the exercise of ordinary care, ought to know of, and
which, under the circumstances, the servant, in the exercise
of ordinary care, is not legally chargeable with knowledge of.
Glenesky v. Kimherly d Clark Co. 52
16. In an action for death of an employee in defendant's factory who
fell Into an unguarded opening caused by the raising of a trap
door In the top of a tank of hot water, it is held upon the evi-
dence to have been a question for the Jury whether such open-
ing could have been guarded by barriers or other safeguards
without unreasonably Interfering with the work which was
being carried on and which could not be performed with the
door closed. Lind v. Uniform 8. d P. Co. 183
17. EMdence that after the accident defendant placed guards around
the opening was not competent to show negligence in not hav-
ing it guarded at the time of the accident, but when ottered
merely to show that it was feasible to place such guards was
competent and was properly admitted as part of plaintiff's case
in chief. lUd.
18. Failure to Instruct the jury that such evidence was no proof of
defendant's negligence was not error in the absence of a re-
quest for such instruction. Ihid.
19. What may be a proper and sufficient barrier or guard with ref-
erence to servants having no duty to perform about dangerous
machinery Is not necessarily so for one who. In oiling such ma-
chinery, is obliged to lean over the barrier and bring his hands
and other parts of his body in close proximity to rapidly re-
volving gearings. Such a servant is entitled to have those gear-
ings securely guarded or fenced for his safety, if practicable
without seriously impairing the efficiency and use of the ma-
chinery. Monaghan v. N. W. Fuel Co. 457
Same: Warning and instructing servant.
20. A master is not required to instruct a servant as to the existence
of danger, unless it is reasonably to be apprehended that the
circumstances requisite to set that danger In motion may prob-
ably occur. Olenesky v. Kimherly d Clark Co. 52
21. Failure of the master to instruct a servant as to matters which
the servant must have known in consequence of his employ-
ment does not constitute actionable negligence. IJ>id.
Same: Risks assumed hy servant. See Cahriebs, 1. Mastbb and
Servant, 25, 26, 31.
22. Employees do not assume the risks arising from negligent failure
of the employer to surround vats containing hot liquids with
proper safeguards as required by sec. 1636/, Stats. (1898). Lind
V. Uniform 8. d P. Co. 183
23. Sec. 1636;/, Stats. (Supp. 1906; Laws of 1905, ch. 303), providing
that, in an action by a servant for personal injuries caused by
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negrligent omission of the master to securely guard dangerous
machinery, the fact that the servant continued In the employ-
ment with knowledge of such omission shall not operate as a
defense, has eliminated assumption of risk from the defense of
contributory negligence In such cases. Mo7ia(fhan v, N. W, Fuel
Co, 457
24. A servant engaged in unusually hazardous building and repair-
ing operations, where he knows that conditions are constantly
changing, assumes all the risks ordinarily present In such dan-
gerous operations. McPherson v, G. N. R. Co, 473
Same: Contributory negligence of servant. See Master and Sebv-
Ain*, 4, 9. 10.
25. In an action for death of an employee caused by negligent failure
of the master to surround vats containing hot liquids with
proper safeguards as required by sec. 1636/, Stats. (1898), con-
tributory negligence of the deceased other than assumption of
the risk may be shown and may constitute a defense, hind v.
Uniform 8. d P. Co. 183
26. Contributory negligence of the decedent is held not to have been
conclusively established in this case, there being evidence from
which the jury might Infer that at the time he fell into an
opening in the top of a vat containing hot water the steam
arising therefrom was so dense that he became confused or
partially lost his way. Ihid.
27. Contributory negligence is an affirmative defense and the burden
of establishing it is upon the defendant whether the evidence
to establish it be given by witnesses for plaintiff or for defend-
ant Achtenhagen v, Watertown, 18 Wis. 331, distinguished.
Ihid.
28. In an action for death involving the question of decedent's con-
tributory negligence, evidence that he had been intoxicated on
former occasions was inadmissible. Ibid.
29. Upon the issue of contributory negligence of a servant who was
injured while oiling machinery, evidence as to how other serv-
ants had done the same work was competent to show that he
was doing it in the usual and ordinary way. Monaghan v, N. W.
Fuel Co. ' 457
SO. A servant engaged in repairing a railroad bridge, who, while
working under the track, reached up and placed his hand on
the rail without looking to see whether a push car, which he
knew might be run over the track at any time, was In use or
not, was guilty of negligence, precluding recovery for Injuries
to his hand by the car. McPherson v. O. N. R. Co. 473
31. It Is not essential to the existence of a legal causal relation be-
tween a servant's negligence and an Injury sustained by him
that he should have anticipated the precise Injury which oc-
curred. It is sufficient if the negligent act was one from which
an ordinarily prudent person might anticipate some injury to
himself. Lehman v. C, Bt. P., M. d O. R. Co. 497
Master's liability for acts of servant. See Municipal Cobpobations,
26, 27.
Instructions to jury,
32. The jury were instructed that in answering. In the special ver-
dict, a question as to whether the machinery in which plaintiff
was injured was so located as to be dangerous to employees in
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the discharge of their duties, they should consider "among other
things" the location of the machinery with reference to where
It became reasonably necessary for employees to be situated In
the discharge of their duties In and about It, and Its situation
and surroundings as shown by the evidence. Held, that pre-
sumably the Jury understood that the "other things" were lim-
ited to things shown by the evidence, and in the absence of
any request for an Instruction to that effect there was no preju-
dicial error. Monaghan v. N. W. Fuel Co. 457
Maxims.
De minimis non curat lex, 408, 412.
Falsus in uno, falsus in omnibus, 106, 1^2, 123.
Nemo est haeres vlventls, 576.
Respondeat superior, 315.
Mayor. See Municipal Corporations, 8-14.
Measure of Damages. See Attagiiment, 1. Damages, 6-10. High-
ways, 17.
Mental Capacity. See Wills, 1.
Milk. See Food. Municipal Corporations, 7.
MILLS AND MTLLDAMS.
See Constitutional Law, 7-9. Corporations, 2-4. Eminent Do-
main, 2. Navigable Waters, 1, 3.
L The words "any mllldam" in subd. 3, sec. 4221, Stats. (1898), —
first enacted as ch. 184, Laws of 1862, — do not relate merely to
dams across nonnavlgable streams authorized by ch. 146, Stats.
1898 (ch. 56, R. S. 1858), but Include a dam built across a navi-
gable stream for the purpose of creating water power to op-
erate mills. Qreen Bay d M. C, Co, v, Telulah P. Co, 417
2. A dam erected to create power to operate mills, which power is
used exclusively for that purpose, Is a mllldam within the mean-
ing of subd. 3, sec. 4221, Stats. (1898), although the corporation
erecting it has no power itself to operate mills, but merely
leases or sells the power to mill owners while retaining title
to the dam Itself. Hid.
8. Subd. 3, sec. 4221, Stats. (1898), has the effect to confer title at
the expiration of the ten years within which an action for dam-
ages for the flowing of lands by a mllldam must be commenced,
and bars, therefore, an equitable action to restrain the main-
tenance of the dam as well as an action for damages. Ibid.
4. The raising, by a mllldam, of the water wholly within the banks
of a river, thereby lowering the available head of the water at
an upper dam .and covering with a greater depth of water the
bed of the river at and below the upper dam. Is a flowing of the
lands of the owner of such upper dam and river bed, within the
meaning of subd. 3, sec. 4221, Stats. (1898). Ibid.
6. A finding by the court that for a period of more than ten years
the setting back of the water upon plaintiff's land by defend-
ants' mllldam had been "uninterrupted, continuous, open, no-
torious, and adverse, and so as to maintain on plaintiff's land
the same water level In the same stages of water," covered all
the elements necessary to render operative the bar of subd. 3,.
sec. 4221, StaU. (1898). Ibid.
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6. The word "adverse" In such a finding, while It embodies a con-
clusion of law, is also a comprehensive statement of an ultimate
conclusion of fact embracing all the elements necessary to make-
possession adverse. Ihid,
7. Proof that a milldam was completed in a certain year, without
fixing the exact date, does not show that an adverse flowage of
land thereby began before the last day of that year. IMd.
8. The fact that for a part of the ten years during which, as de-
fendants claimed, the lands of plaintiff, the owner of an upper
dam, had been flowed by means of a lower dam, the general
manager of one of the defendants acted as principal manager
of the lower dam and was also general manager of a corpora-
tion which had leased from the plaintiff certain amounts of
water power from the upper dam and certain lots below that
dam, did not prevent the fiowage from being adverse to plaint-
iff during the whole of said ten-year period, in the absence of
a showing that the property so leased from plaintiff was in any
way Interfered with or encroached upon by the setting back of
the water from the lower dam. The doctrine that a tenant
cannot deny his landlord's title or acquire a hostile title while
the tenancy continues has no application to such a case. Ihid.
9. The fact that a dam across a navigable river Is an unlawful
structure because it obstructs the river without legislative au-
thority, does not prevent the acquirement by prescription of
the right to maintain such dam as against individual owners
of lands above the dam. Jbid.
MoBTOAOES. See Pleadiitq, 4.
Multiplicity of Actions. See Injunction, 1.
MUNICIPAL CORPORATIONS.
General charter. See Schools and School Distbicts, 1, 2.
Creation: Territorial extent: Villagea.
1. The legislature, having the power to create villages, necessarily
has a large discretion in the matter of determining what their
boundaries shall be; and the courts will interfere with legisla-
tive action in that matter only when the discretion has been
abused and there has been a violation of sec. 3, art. XI, Const,
or of sec. 23, art IV. Fenton v. Ryan, 353
2. Restrictions upon the size and with respect to density of popula-
tion of territory which may be included in an incorporated vil-
lage must be implied from the name of the corporation and the
purpose for which it is incorporated. Ihid,
3. It may well be that it is competent for the legislature to say, aa
in sec. 854, Stats. (1898), that the area of a village to be in-
corporated shall not be less than one half a square mile, on the
ground that territory to that extent is reasonably necessary
to carry out the purposes for which villages are incorporated.
Idid.
4. The Inclusion in a new village of territory, in excess of one half
a square mile, consisting of sparsely settled rural or agricul-
tural lands not having the distinctive characteristics of a vil-
lage or any natural connection therewith, and not reasonably
appurtenant and necessary for the future growth of the village,
would be an invasion of the uniformity in town and county gov-
emment required by sec. 23, art IV, Const Jbid.
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5. Whether, in a given case, the territory in excess of one half a
square mile which it is proposed to include in a new village is
such that it may properly be Included therein, is a question for
the courts. A dictum to the contrary in In re North Milwaukee,
93 Wis. 616, held oUter. Ibid.
6. A holding by the circuit court in this case that a water area of
seventy-five acres embraced within the boundaries of a pro-
posed village should be included as part of the one-half square
mile provided for by sec. 854, Stats. (1898), was not erroneous;
nor was it tantamount to a holding that no village could be
Incorporated which bordered on a large body of water, since
the petitioners need not include water areas in their proposed
boundaries, nor is there any statutory limitation of the area of
the village other than that it shall not include the entire town
or towns. Ibid.
OovemmentcU powers and functions. See States.
Legislative control. See Schools and School Districts, 1, 2.
Proceedings of common council. See Schools and School Die-
tbicts, 2.
8ame: Ordinances: Police regulations: Public Tiealth.
7. Under charter authority to tax, regulate, and restrain vendors
of milk and to regulate and restrain the sale of milk, a com-
mon council has power to pass an ordinance vesting the power
of issuing -and revoking licenses in the city health officers, with
the right to exercise the power of revocation summarily and
even without notice. Language in State ex reh Sepic v. Mil-
waukee, 129 Wis. 562, that the words "regulate" and "restrain"
do not in any sense mean "revoke," considered and overruled.
State ex rel. Nowotny v. Miltoaukee, 38
Officers: Mayor: Powers: Appointment, suspension, and removal of
subordinates.
8. A city charter declaring that the mayor shall be "the chief execu-
tive officer and the head of the fire department and of the police
in said city" and that he shall "take care that the laws of the
state and the ordinances of the city are duly observed and en-
forced," confers upon the mayor all of the power of a chief
executive, except as elsewhere limited, with the necessary right
of discretion and judgment, and does not make him a mere ad-
ministrative officer. State ex rel. Davern v. Rose, 360
9. The executive power conferred upon the mayor by such a charter
includes the power to appoint and remove subordinate executive
officers at discretion, except as qualified by other charter pro-
visions. Jbid.
10. Where a statute (ch. 378, Laws of 1885) amending a city charter
vested the power of appointment and removal of the chiefs of
the fire and police departments in a board of commissioners,
but provided that either of said officers should be subject to sus-
pension from office for cause by the mayor at any time, and
that the mayor should at once communicate to said board the
charge or charges against an officer so suspended, for the deci-
sion of the board thereon, the suspension might be made for
any cause which. In the honest judgment of the mayor, might
reasonably render it advisable for the public good. Ibid.
11. The power and the duty of the mayor as to suspension of officers
under such a statute is discretionary in a very high degree. He
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may weigh all confiideratlons In determining whether he should
exercise the power; and his decision not to exercise it, even
where there has been gross dereliction on the part of the sub-
ordinate officer, is not subject to review or direction by the
courts, unless there has been an entire refusal to consider and
exercise discretion. IMd,
12. The mayor in such a case need not declare the reasons for his
decision or his action in deciding against suspension, it being
enough for him to declare that he deems the public welfare pro-
moted by action or inaction, and even that declaration need
only be by the act. Ibid.
13. The courts in such a case must Indulge* in every prima facie pre-
sumption In favor of the good faith of the executive officer In
his discbarge of his duties, and only when It is established by
the clearest possible evidence that he has wholly refused to
exert his jurisdiction or to exercise any discretion whatever
can the courts properly interfere by mandamus. Ihid.
14. Where, upon charges being filed against a subordinate officer,
the mayor entered into an investigation, taking various means
to inform himself of the facts and of the situation, and declared
his conclusion that the charges did not warrant suspension,
there was an exercise of the discretion vested In him, and man-
damus will not lie. IMd.
Same: Suretyship on bonds, etc.
15. In a city charter providing that "no city officer shall be accepted
as surety upon any bond, contract or other obligation made by
the city," the courts cannot substitute the word **to" in place
of the word "by," the provision as enacted not being absurd.
Ashland v. Maciejewski, 642
[16. Whether the words *'bond, contract or other obligation" could be
construed as applying to a recognizance given on appeal from a
municipal court, not determined.] Ibid.
Improvements: Streets and sidewalks: Establishing grade lines.
17. A village ordinance permanently establishing the grades of streets
at the centers and at the parkings at the curb lines, and pro-
viding that "said parking shall rise from such curb line to the
lot line at a uniform grade of not less than one fourth of one
inch to each foot," fixes the grades for the sidewalks, supersed-
ing grades theretofore prescribed. Blanke v. Genoa Junction,
211
18. Where, with full knowledge of a change in the grade prescribed
for a sidewalk and in defiance of a written notice and order
from the village board, a lotowner constructs a walk in accord-
ance with the former grade, the village officials have the right
to order the removal of such walk and, in case of disobedience,
to proceed to its demolition. Ibid.
Same: Service pipes to curb line.
19. The word "may" in sec. 925—223, Stats. (1898), providing that
whenever the city council shall order the paving or repavlng
of a street in which gas or water mains, or sewers, or either
of them, have previously been laid, they m^ require service
pipes and bouse drains to be first laid to the curb line, and that
no street shall be paved or repaVed by order of the council un-
less the water and gas mains and service pipes and necessary
sewers and their connections shall, as required by the councih
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be first laid and constructed, — is used In its ordinary and nat-
ural meaning and is not mandatory. Gleason v. Waukesha Co,
103 Wis. 225, in so far as it Indicates that a city cannot pave
without first requiring such connections to be made, overruled.
Barber A. P. Co. v, Oshkosh, 58
Same: Restraining corporate action.
20. In an action to restrain a village from making certain street im-
provements pursuant to petition, it will be presumed on demur-
rer to the complaint. In the absence of allegations to the con-
trary, that the village authorities are proceeding according to
law. Bekkedahl v. Westhy, 230
21. The general power in respect to streets and sidewalks conferred
upon the village board by subd. 11, sec. 893, Stats. (1898), In-
cludes the power to determine the width of the traveled track
in a street /ftttf.
22. Allegations in a complaint that a village board Intends and
threatens to compel plaintiff to build a sidewalk outside of the
street and upon his residence lot, and that in order to do so
he will be deprived of his land without due process of law and
without compensation, do not show a right to an Injunction
where it Is evident from the facts pleaded that defendants do
not intend to compel plaintiff to build a walk by force or other-
wise than by legal procedure regularly Instituted and carried on.
Ibid,
Same: Invalidity of contracts: Ratification: Recovery by contractor.
23. Ch. 677, Laws of 1907, purporting to validate certain classes of
paving contracts theretofore made by "any municipal corpora-
tion of the first class," relates to the city of Milwaukee, which
is the only city then or ever theretofore in the first class of
cities by legislative classification according to population, and
relates wholly to past conditions. It Is therefore a special law
amending the charter of that city and within the condemnation
of sees. 31, 32, art IV, Const Cawker v. Central B. P. Co. 25
24. Where a municipal paving contract is invalid for failure to com-
ply with charter requirements, the city cannot thereafter vali-
date it by ratification without compliance with such charter
provisions. Ibid.
25. Where a street-paving contract is void for failure to comply with
charter provisions, the contractor cannot go on and complete
it and recover upon quantum meruit, IbUk
Police power. See Telegraphs and Telephones, 1, 2.
Waterworks: Liability for negligent operation.
26. In selling and distributing water to its citizens by means of a
system of waterworks a city Is acting not in its governmental
but in its private or proprietary capacity, and is liable in dam-
ages for negligence of its agents and servants in the conduct of
such business^ Piper v. Madison, 311
27. The fact that the city may also use the waterworks for protection
against fire does not relieve it from liability for negligent acts
of its servants or agents in the conduct of the business, .except
for such acts as are performed by them in the actual work inci-
dent to extinguishing fires. Ibid.
Municipal Coubts. See Constitutional Law, 3, 4, Coubtb, 8. 9.
Murder. See Criminal Law, 3. Hohicidb.
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NAVIGABLE WATERS.
Rights of public. See Constitutional Law, 7-9. Cokporations, 2.
Drains, 1. Eminent Domain, 2. Mills and Milldams.
1. Evidence, stated in the opinion, held sufficient to sustain the find-
ing: of the trial court that a pond, created in a nonnavigable
creek by the flowage from a dam across such creek, is in fact
navigable. Johnson v. Eimerman, 327
2. The rights of the public in a small body of water, navigable in
fact and constituting a public highway, are as much entitled to
protection as they would be in a more pretentious watercourse.
Ibid,
Z. An artificial condition of navigability of a pond originally created
by a dam, becomes, by continuance for twenty years, a natural
condition. Ibid,
NEGLIGENCE.
Acts and omissions constituting negligence. See Baitkb and Bank-
ing, 1, 2. Carriers. Damages, 4, 6, 11-15. Evidence, 10-12.
Highways, 10-^18. Master and Servant, 7-32. Municipal
Corporations, 26, 27. Railroads, 26-37. Street Railways,
3, 4. Telegraphs and Telephones, 3. Trial, 4, 7.
Proximate cause. See Carriers, 7. Highways, 12. Master and
Servant, 10, 11, 26-28.
1. It is not error to give to the jury i>erbatim the definition of proxi-
mate cause found in Deisenrieter v. Kraus-Merkel M. Co, 97 Wis.
288, approved in Feldschneider v. C, Af. d 8t. P. R. (Jo. 122 Wis.
431. Monaghan v. N. W. Fuel Co. 457
2. An instruction giving correctly the definition of proximate cause
in the abstract was not erroneous because not phrased to fit the
particular facts of the case, where no different or further in-
struction was requested. Stumm v. W. U. Tel. Co. 528
Contributory negligence. See Appeal, 16. Carriers, 6-8. High-
ways, 12. Master and Servant, 4, 9. 10, 22-31. Railroads, 28.
Street Railways, 3, 4.
3. The question of contributory negligence is or may be a mixed
question of law and fact, but when facts are found in a special
verdict showing contributory negligence without room for con-
flicting inferences, the conclusion of law necessarily follows, and
the court may properly change the answer to another question
whereby the jury finds that there was no contributory negli-
gence. Tetter v. Southern Wis. R. Co. 296
Comparative negligence. See Master and Servant, 4.
NEW TRIAL.
See Criminal Law, 25, 26.
1. Although a written opinion of the trial Judge indicates his rea-
sons for granting a motion to set aside a verdict, yet the sub-
sequent order setting it aside upon grounds expressly stated
therein is the authentic and official evidence as to such grounds.
Nelson v. A. H. Btange Co. 657
2. Where defendant appealed from an order granting to plaintiff a
second new trial, but not from the order granting the first, af-
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firmance of the order appealed from conclusively adjudicated
that plaintiff was entitled to a new trial and that a new trial
must follow that order; hence the verdict on the first trial could
not thereafter be reinstated and judgment entered thereon. Ihid,
[3. The order setting aside the verdict on the first trial having been
made on the ground that a material issue of fact had not been
submitted to the jury and because the trial judge was not satis-
fied with the conduct of the trial and the instructions to the
jury as a whole, — ^whether another judge, before whom the cause
was brought by change of venue, could, had there been no ad-
judication on appeal, set aside such order of his predecessor,
not determined.] Jhid,
NsxT OF Kin. See Insane Psesons.
Nominal Damages. See Damages, 8.
Notice.
Of claim. See Railroads, 35.
Of injury. See Highways, 13, 14.
Of tax sale. See Tax Titles, 1-5.
Obstbvctions. See Highways, 10-12. Telegraphs akd Telephones*
1,2.
Offsb. See Subscbiptions.
OFFICEIRS.
Appointment and removal. See Coubts, 3-7. Municipal Cobpora-
TIONS, 8-14.
1. Where no definite term of office is fixed by law, the power to re-
move an incumbent is incident to the power to appoint, in the
absence of some constitutional or statutory provision to the con-
trary. State ex rel, Wagner v. Dahh 301
2. An office is not regarded as property, nor is the right to hold
office a vested one. 7&id.
8. The power of amotion from office is not a judicial but an admin-
istrative power, though it be exercised in a judicial maimer.
/did.
4. Under sec. 22, ch. 363, Laws of 1905, where an appointing offi-
cer in removing an employee acted within his jurisdiction^
i. e. when the cause assigned is a "just cause" within the mean-
ing of the statute, and there is nothing to show that he acted
arbitrarily or in bad faith, the courts will not review his de-
cision as to the fact of the existence of such cause. Hid.
Discretion: Interference hy courts.
5. Courts have no right to interfere with the exercise of the discre-
tion vested in executive officers, state or municipal. State ex
rel. Davern v. Rose, 360
6. No wrong, in the legal sense, results when one receives all that
the law accords htm; and when the only right of an individual
or of the public which the law gives is that which a designated
officer deems best, the honest decision of that officer is the meas-
ure of the right Ibid.
T. Where an absolute duty, involving nothing of judgment or dis-
cretion, has been imposed upon an administrative or executive
officer, performance thereof may be enforced in a proper case
by the courts, if no other adequate method is provided. Ibid.
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Obedience to lawr Presumption,
8. The presumption is that public officers will obey the laws and not
wantonly or criminally violate them. Btate ex rel, Wagner v.
Dahl, 301
Compensation, See Courts, 7.
Rights and powers. See Health. Highways, 10-12. Municipal
Corporations, 8-16.
Opinion Evidence. See Evidence, 8-12. Highways, 14.
Ordinances. See Municipal Corporations, 1, 7, 17.
Parent and Chhjo. See Contracts. 1, 2. Descent and Diotribt^
tion. Domicile. Husband and Wife, 3. Indians.
PARTIES.
Real party in interest. See Railroads, 87.
Proper parties. See Husband and Wife, 1.
Necessary parties. See Ejectment, 6, 7. Partition, 8.
New parties.
Where in an action of replevin it appeared from the pleadings and
from the verdict on an issue in abatement that a third person
was jointly interested with plaintiff in a written contract under
which the property in question was claimed by defendant to
have been delivered to him in part payment for land, the court
should not have ordered the action abated, but under sec 2610,
Stats. (1898), should have stayed the proceedings and ordered
such third person brought in as a necessary party plaintiff.
Bwenson v. WeUs, 316
PARTITION.
1. A tenant in common of land leased to others may maintain an
action for partition under sec. 3101, Stats. (1898), the lessees'
possession being that of the owners; and if one or more of the
lessees purchase the interest of one of such owners tkey succeed
to his rights and may have partition. Peterman v, Kingsley,
666
2. Lessees of land are not necessary parties to an action for parti-
tion between the lessors, their rights not being affected. If tho
land is to be sold in such action it must be sold subject to tho
leases. Ibid.
Payment. See Bankruptcy. Insurance, 4. Tax Titles, 6.
PENSIONS.
1. Under sec. 4747, R. S. of U. S., as construed by the federal su-
preme court, pension money is only exempt from claims of a
pensioner's creditor while it is "due, or to become due, to any
pensioner." Joyce v, Russell, 583
S. By such construction the words of the statute, "shall inure wholly
to the benefit of such pensioner," relate to the words "due, or to
become due," and have no force after the public obligation has
been discharged by delivery of the money to the pensioner or
his agent. Ibid.
8. Whether Folschow v. Werner, 51 Wis. 85, holding to the contrary
of the federal construction, should h% adhered to, this court
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may properly decline to state, further than is necessary to facts
as presented, requiring a decision. Ibid.
4. Notwithstanding Folschow v. Werner, pension money, under the
federal statute, is not exempt from claims of creditors of the
pensioner after the money has been paid to him and converted
into other property. IlHd,
Pbbsonal Injuries. See Carriers. Damages, 11-15. Evidenck,
10-12. Highways, 10-12. Master and Servant, 7-32. Railt
ROADS, 26-31, 35-37. Street Railways, 3, 4. Trial, 4, 7.
PHYSICIAlfS AND SCJRQEONS. SOO EVIDENCE, 9.
PLEADING.
Form and allegations in general,
1. A relation of mere evidentiary circumstances may properly be
stricken from a complaint Koenig v. Koenig, 618
Same: On information and belief. See Pleading, 4.
Complaint, See Appeal, 20. Contracts, 17. Corporatiowb, 6, 7.
I. \ junction, 2. Municipal Corporations, 22. Pleading, 1.
Same: Election between causes of action.
2. It was not prejudicial error to refuse to compel plalntifT to elect
on which of two causes of action he would proceed, where the
second was pleaded for the sole purpose of claiming a recovery
for labor and services in case the contract of employment al-
leged in the first was found not to have been made, and plaintiff
at the close of his affirmative case discontinued as to the second
cause of action and apprised defendant that he stood on the
contract and its alleged breach. Rickey v. Union Central L.
Ins. Co. 486
Same: Joinder of causes of action.
3. The mere fact that unnecessary or even improper relief is prayed
for does not show that more than one cause of action is stated.
Beering v. Black, 413
Answer. See Ejectment, 3-8. Master and Servant, 6.
Same: Frivolousness.
4. In a foreclosure action the complaint alleged that a note and
mortgage were executed by defendants to plaintiffs and that
plaintiffs are now the lawful owners and holders thereof. The
answer admitted isuch execution but alleged that defendants
"have not sufncient information or knowledge to enable them to
form a belief as to whether or not plaintiffs are the lawful own-
ers and holders of the note and mortgage, and therefore deny
the same." No fact was stated in the pleadings tending to show
that there had been any transfer or change In the ownership
of the note and mortgage. Held, that the answer was properly
stricken out as evasive and frivolous. Mathews v. Pufatl, 655
Counterclaim's. See Contracts, 13. E3jectment, 4.
5. The objection that certain counterclaims could not properly be
pleaded in the action was waived by failure to demur or reply
to them. Stark v. Duhring, 521
Cross-complaint.
6. Where a taxpayer has brought an action against a city and a
paving contractor to enjoin the collection of the contract price.
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an afflrmative claim set up by the contractor by crosa-complalnt
against the city for a recovery on Implied assumpsit, if sus-
tained, defeats the taxpayer's action, and hence he may chal-
lenge the legal sufficiency of the cross-complaint on demurrer.
Cawker v. Central B. P. Co, 25
Demurrer. See Ai'PEAL, 20. Municipal Cobporations, 20. Plead-
ing, 5, 6.
Variance.
7. A defendant who neither demands a bill of particulars nor moTes
to make the complaint more definite and certain cannot, by ob-
jection at the trial, exclude evidence which is comprehended
within the broad generalities of the complaint Dralle v. Reeds-
hurg, 319
Duplicity, See Sales* 2.
PLEDGES AND COLLATERAL SECURITT,
A complaint alleges that plaintiflt agreed to transfer a note and
mortgage to a banK as collateral security for loans, that de-
fendant, the cashier of the bank, by fraudulent statements that
it was an assignment as collateral security only, obtained from
plaintiff an assignment in form absolutely transferring the note
and mortgage to defendant, and that defendant refuses upon
demand to surrender such securities; and in effect admits that
the loans have not been repaid. Held, that no actionable fraud
against plaintiff is shown, but simply that his note and mort*
gage are held by the defendant for the bank as collateral se-
curity; and until the loans are repaid defendant is entitled so
to hold them. Doherty v, Wing^ 227
Police Power. See Health. Railroads, 5, 19, 24. Teleoraphs
AND Telephones, 1, 2.
Possession. See Cancellation of Instruments, 1. Dower, 6. Eject-
ment. Mills and Milldams, 2-8. REPLBVUf.
Preferences. See Bankruptcy.
Preliminary Examination. See Criminal Law, 1-3. Hare as Cor-
pus.
Prbscription. See Hiotiways, 9. Mills and Milldams, 9.
Presumptions. See Appeal, 11, 15. Criminal Law, 9, 18, 21. Death.
Domicile. Evidence, 1, 2. Highways, 6, 7. Insurance. 3, 10.
Judgment. Mit^icipal Corporations, 13, 20. Officbbs, 8.
Schools and School Districts, 4. Trial, 4.
PRINCIPAL AND AGENT.
The relation: Rights and duties of agent. See Deeds, 1. Eyidettcb,
3-5. Insurance, 4-10. Railroads, 86, 37. Sales, 6.
Rights and liabilities to third persons: Undisclosed limitation on poll-
ers of agent.
Defendants having sold the stock of liquors and glassware used in
a saloon huslness and turned the husiness OTer to the purchaser,
to be continued by him in their name, under licenses issued to
them, until the purchase price and cost of the licenses was re-
paid, a private and undisclosed agreement that he should not
commit them to liability for supplies purchased by him for the
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business would not protect them against a claim for such sup-
plies by one who dealt with him in the ordinary line of such
business without knowledge of the restriction. Napa Yailei;
Wine Co. v. Casanova, 28^
PRINCIPAL AND SURETY.
See Municipal CJorpokations, 15, 16.
Where the date of the actual completion of a building was Sep-
tember 20, and, as early as June 9, payments had been made
to the contractor aggregating upwards of $2,000 in excess of
the amounts stipulated to be paid prior to the final completion
of the building, the amount of the advanced payments and the
length of time in which they antedated the time when they
should have been r'^id are such material variances from the con-
tract as absolutely discharge the contractor's sureties. Kunz
V. Boll, 69
Printed Case. See Appeal, 29.
Pbiyate Laws. See Constitutional Law, 1, 2, &-7, 11.
Pbobablb Cause. See Malicious Pbosecution. Tbial, 6.
Promissort Notes. See Larcent. Malicious Prosecution.
Proofs op Loss. See Insurance, 3.
Prozihate Cacse. See Attachment, 2. Carriers, 7. Highways,
12. Master and Servant, 10, 11. Neouoence, 1, 2. Rail-
roads, 26-28.
Public Health. See Food. Health. Municipal Corporations, 7.
Public Policy. See Wills, 10.
Public Use. See Taxation, 1-3.
Punitory Damages. 4Bee Damages, 5. Httsband and Wife, 4, 6.
Quantum Meruit. See Municipal Corporations, 25.
Railroad Commission. See Railroads, 1, 2, 6-9, 13-15, 17, 18, 20.
RAILROADa
RaUroad Commission.
1. An order of the Railroad Commission will not be disturbed by
the courts unless it Is unlawful or unreasonable. State ex rel.
N. P. R. Co. V. Railroad Comm. 145
Control and regulation: Railroad crossings: Eminent domain.
2. Ch. 454, Laws of 1907, and particularly sec. 1797 — 56, Stats., vests
in the Railroad Commission power to determine the point at
which, as well as the manner in which, the track of one rail-
road shall be crossed by that of another; and the question of
compensation only Is left to the commissioners appointed by
the court under subd. 6, sec. 1828, Stats. (1898). State ex rel.
N. P. R, Co. V. Railroad Comm. 145
3. The law as it before existed respecting the right of a railroad
company to designate its route was not abrogated by ch. 454.
Laws of 1907. Ihid.
4. A railway company which constructed Its road while a statute
(subd. 6, sec. 1828, Stats. 1898) was in force under which, as
at common law, It could not be required to pay any part of the
expense of making and maintaining any subsequent crossing of
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Its track by the track of another railway, acquired thereby a
vested property right which cannot be taken for the benefit of
another company without compensation, in the exercise of the
reserved right to alter or amend charters. /bid.
6. To compel the senior railway company to pay any part of the
expense occasioned by the crossing of its road by the junior
company would be a taking of the property of the former; and
such a taking without compensation to the senior company
would not be a reasonable or valid exercise of the police power.
Ibid.
<J. Sec. 1797 — 56, Stats. (Laws of 1907, ch. 454), may reasonably be
so construed as not to require the Commission to impose any
part of the expense of the crossing upon the senior road which
would result in a taking of its property without compensation;
and in support of the validity of the statute it should be so con-
strued. , Ibid.
7. When, pursuant to sec. 1797 — 56, the Railroad Ck>mmission im-
poses upon the senior road a part of the expense of construct-
ing, operating, and maintaining a crossing of its tracks and the
prescribed protective appliances, the senior road is entitled to
recover in the condemnation proceedings before commissioners
appointed by the court (under subd. 6, sec. 1828, Stats. 1898),
all damages sufFered by it by reason of the crossing, including
damages on account of the burden or expense so imposed upon
it by the (Ik)mmission. Ibid.
S. This provision of sec. 1797 — 56, that the Railroad Commission
may apportion the expense of the crossing, is not a delegation
of legislative power, or a vesting of Judicial power in the Com-
mission. Ibid.
9. An order of the Railroad Commission apportioning the expense
of a crossing, pursuant to sec. 1797 — 56, should leave the amount
of damages occasioned by the crossing to be fixed by the com-
missioners appointed by the court in the condemnation proceed-
ings under subd. 6, sec. 1828, SUts. (1898). Ibid.
Per Mabshaix, J., concurring:
10. The right, in a general sense, to construct a railroad is referable
to the certificate of public convenience and necessity, under
sees. 1797—43 to 1797—53, Stats. (Laws of 1907, ch. 454). Ibid.
11. The right to cross the tracks of a senior railroad is referable to
subd. 6, sec. 1828, SUts. (1898). Ibid.
12. The right to take the property of the senior road at the point of
crossing is referable to said subd. 6, sec. 1828. Ibid.
13. Authority to locate the place of crossing is referable to the im-
plied power of the Railroad Commission under sees. 1797 — 54
to 1797 — 56, and the general spirit of the act of 1907, super-
seding by necessary inference subd. 6, sec 1828, Stats. (1898),
on that subject Ibid.
IL The manner of constructing the railroad, including the manner
of making the crossing with its accessories, and the establish-
ing of status in respect thereto to be dealt with in condemna-
tion proceedings, is referable to the decision of the Railroad
Commission under sees. 1797 — 54 to 1797 — 56. Ibid.
15. The manner of acquiring property for the purposes of the road,
including that of any other road at the crossing, is referable to
sees. 1845-1851, and such other parts of ch. 87, Stats. (1898), as
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bear on the subject, the proceedings to that end to be subse-
quent to the determination by the Railroad Commission under
sees. 1797—54 to 1797—56. Ihid.
16. The commissioners in condemnation proceedings are required to
deal with the situation created by the determination aforesaid
making the owner of the senior road good by an award of a
money equivalent for such appropriation of its property rights
as shall be contemplated in view of such determination, includ-
ing the cost of 9uch grading, rails, frogs, switches, and other
appliances used in constructing and maintaining the crossing,
and maintaining and operating safety appliances, as shall be
preliminarily entailed upon it in view of such determination.
Ibid,
Barnes, J., and Winslow, C. J., dissenting, are of the opinion:
17. So much of sec. 1797 — 56, Stats., as empowers the Railroad Ck>m-
mission to require the senior company to bear any portion of
the expense of constructing a crossing proper is void because
it deprives the company of its property without due process of
law; but the invalidity of this particular provision does not af-
fect the remaining portion of the act Ibid.
18. An order of the Commission, not imposing upon the senior com-
pany any part of the expense of constructing the crossing
proper, but requiring it to defray one half of the expense of
maintenance, is not erroneous in the al)sence of anything to
show that such latter expense was a material item or that the
half thereof would exceed the cost of maintaining the road at
that point had no crossing been made. Ibid.
19. Whether a crossing already exists or is to be made, the state, in
the exercise of its police power, may require that it be safe-
guarded by protective appliances, such as interlocking plants,
whenever in the exercise of reasonable Judgment such devices
are deemed to be required for the public safety or convenience,
and may make any reasonable apportionment of the expense
between the roads affected, without reimbursement to the senior
company. Ibid.
20. The legislative declaration requiring railway companies to in-
stall approved safety devices whenever necessary to protect life
or facilitate commerce is implied in the language of ch. 454»
Laws of 1907. and in view thereof the delegation of power to
the Railroad Commission to determine the fact as to the neces-
sity for such devices at a griven point, and to apportion the ex-
pense thereof, is valid. Ibid.
21. Sec. 1797 — 56, Stats., should not be construed as giving the senior
company any right to recover from the Junior, in condemnation
proceedings or otherwise, the amount apportioned to and paid
by such senior company for the construction or maintenance of
safety devices at a crossing. Ibid.
Same: Highway crossings.
22. Under sec. 1299^ — 1, Stats. (Laws of 1907, ch. 120), — the company
must, by planking or some equivalent therefor, adjust the sur-
face of the highway where it crosses the tracks substantially to
a level with the tops of the rails. Chicago, M. d 8t. P. R. Co.
V. Fair Oaks, 334
23. Where a portion of the right of way of a .railway company is con-
demned for the purpose of extending a highway across the
tracks, the company is not entitled to be compensated for the
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expense which it must incur in constructing and maintaining;
the crossing as required by the statute, such burden being Im-
posed upon it solely for the protection of the public. Ibid,
24. The requirement of sec. 1299/ir— l, SUts., is a legitimate exercise
of police power for the protection of the safety of the public.
IMd,
Same: Fences: Personal injuries to infant.
25. The question whether a giren place is or Is not depot grounds
within the calls of sec. ISIO, Stats. (1898), is ordinarily a ques-
tion of fact. Schwind v. C, M, ^ Bt. P. R. Co, 1
26. Failure of the statutory duty imposed upon railroad companies
to fence their right of way constitutes negligence, and for in-
juries proximately caused thereby, and not contributed to by
the negligence of the person Injured, the company is liable.
IMtf.
27. Where, In addition to the duty imposed upon railroads to fence
their right of way, the provisions of the statute impose liability
for all damage to persons and animals occasioned "in uiy man-
ner, in whole or in part, by the want of such fences," an Injury
may be occasioned in whole or in part by the absence of a fence,
although it may not be proximately caused thereby. Ibid,
28. Under sec. 1810, Stats. (1898), imposing upon railroads liability
for damages to persons and animals occasioned by unfenced
right of way, proximate causal relation, including reasonable
anticipation, is not necessary, and contributory negligence is
no defense; the purpose of the statute being to cast upon rail-
roads absolute liability. l\nd,
[29. Whether the deliberate and intentional entry upon a railroad
right of way and tracks by an adult fully cognizant of all the
conditions, and with no circumstances of confusion or inadvert-
ence, may be held, as matter of law, not occasioned by absence
of a fence, not determined.] Ihid,
30. Where, in the light of childish tendencies, an Injury happens to
a child ten years of age upon the unfenced right of way of a
railroad, the court cannot say, as matter of law, that his devia-
tion onto the railroad grounds would have so certainly occurred
had a fence been interposed as to warrant reversing a linding
that the injury was caused In whole or in part by the absence
of a fence. Ibid.
31. In an action for personal injuries happening to a child walking
upon an unfenced right of way, it is not error to instruct the
jury to consider whether a fence would have "prevented or
tended to prevent" plaintifF*s entry on the right of way. Ibid,
Right of way. See Eminent Domain, 5. Railroads, 2-21. Vendor
AND Purchaser, 1-6.
Operation: Injuries to passengers. See Carriers.
Same: Injuries to employees. See Carriers, 1. Master and Serv-
ant, 1-4, 30.
Same: Injuries to animals,
32. Upon the evidence in an action for the value of a horse killed on
defendant's track it is held that the trial court properly refused
to direct a verdict for defendant Bodenheimer v. C. 4 N. W.
R, Co. 623
33^ The evidence being conflicting as to whether the horse was killed
at a highway crossing or north thereof on defendant's track be-
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yond a cattle-guard alleged to have been defective, a charge to
the jury, stated In the opinion, is held prejudicially erroneous
as being argumentative and invading the province of the jury.
Ibid.
84. Further instructions, stated In the opinion, are held erroneous
and prejudicial because precluding the jury from considering,
in weighing the engineer's testimony, his emplojrment by the
defendant, his appearance and demeanor, the probability of his
story, and other proper tests. Ibid,
Oonatruction: Liability to laborers of contractor.
35. Sec. 1815, Stats. (1898), does not require the notice to be served
upon the particular employee in charge of the construction work
on that part of the road; the intention being that service should
be made upon an employee who would be likely promptly to
bring home to the company knowledge of the existence of the
claim, rather than upon one who would know whether the
claim was legitimate or not Matzewitz v. W. C. R, Co, 643
86. Delivery by the laborer of his time check to another person for
collection, writing his name on the back thereof as evidence of
the authority, and borrowing a small sum from such person on
the claim, did not constitute such a transfer of title as took the
claim out of the protection of the statute. Ibid.
87. The creation of such a mere agency, though coupled with an in-
terest, to collect the claim for the benefit of the laborer, did not
make the agent the real party in interest who must be plaintiff
in an action to enforce the clainL Ibid.
Taxaiion, See Taxation, 1-3.
RAPE.
A conviction of rape cannot be sustained upon ^he uncorroborated
testimony of a prosecuting witness whose story is intrinsically
Improbable and almost incredible, especially if she is a person
of feeble mind. Donovan v. State, 570
RATinoATioN. See Municipal Corporations, 24.
Real Party in Interest. See Railroads, 37.
Real Property. See Attachment, 1. Boundaries, 2. Cancella-
tion OF Instruments. Constitutional Law, 8, 9. Contracts,
14, 16, 17. Deeds. Dower. Drains. Ejectment. Evidence,
4, 5. IN.TUNCTI0N, 2. Mills and Milldams, 3. States, 4, 6.
Tax Titles. Trusts. Vendor and Purohasbb.
Reassessment. See Taxation, 4.
Rerating. See Insurance, 4-8.
Receivers. See Corporations, 5-7,
Recoupment. See Contracts, 13.
Reference. See Appeal, 1, 12.
Referendum. See Constitutional Law, 1, 8.
RELIGIOUS SOCIETIES.
Incorporation,
1, Notwithstanding informalities in its articles of incorporation, a
religious society which has accepted from a member thereof a
subscription to a building fund is, as to the subscriber, a corpo-
ration de facto. Evangelish L. Bt. M. Gemeinde v. Pruess, 349
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Rights of members in property. See Sttbscripttons.
2. Where property has been acquired, whether by gift or purchase*
for the maintenance and support of the faith of a recognized
denomination or church, every member of the association ac-
quiring it may resist Its diversion to other antagonistic uses,
whether secular or religious, and the courts will protect and
enforce the trust to apply it to the uses for which acquired and ■
not to inconsistent uses. Marien v. Evangelical C. Cong. 31
Remainders. See Dower, 3.
BEMOYAii. See Municipal Corporations, 9-12. Officers, 1-4.
REPLEVIN.
See Parties.
Ordinarily sole ownership In the plaintiff Is not essential to the
maintenance of replevin against a stranger who has neither
title nor right to possession. It being sufficient In such a case
that plaintiff has an Interest and is entitled to possession.
Stoenson v. Wells, 316
Requests for Instructions. See Appeal, 3. Highways, 17. Mas-
ter AND Servant, 18, 32. Negligence, 2. Trial, 3.
Res Adjudicata. See New Trial, 2. Tax Titles, 9.
Rescission. See Contracts, 3-5, 12-17. Larceny. Vendor and Pur-
chaser, 3, 4, 6, 8.
Reservation in deed. See Deeds, 2.
Residence. See Domicile. Extradition.
Right of Way. See BinNENT Domain, 5. Ratlroads, 2-4. Vendor
AND Purchaser, 1-6.
Rules of Court.
Supreme Court Rule 6 (Cases and briefs), 436, 440.
Supreme Court Rule 44 (Costs for printing case), 440.
SALES.
Construction of contract.
1. A contract obligating the seller to deliver a commodity f. o. b.
cars Is not a sale in prwsenti, either when made or when the
commodity Is manufactured, since the title does not pass to the
purchaser until the commodity is delivered by loading It on the
cars. Badger 8. L. Co. v. G. W. Jones L. Co. 73
2. The complaint alleged that the defendant was indebted to the
plaintiff for thirty-four loads of gravel "hauled and delivered"
at $2.50 per load "for hauling the same." The answer admitted
this, but averred that the agreed price was $2 per load. At the
trial the complaint was amended so as to claim what the gravel
was reasonably worth per load. The court construed the com-
plaint, taken with the answer and the evidence, to present a
case for the recovery of the reasonable market value of the
gravel sold and delivered by the load, and not an action on con-
tract for services performed. Held, that there was sufficient
duplicity in the pleadings to make this construction admissible
and conclusive on the parties on appeal. Monture v. Regling,
407
3. Under such pleadings, questions submitted for special verdict
asking whether there was an express agreement for |2 per load.
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and. if not, what- was the reasonable value per load, sofflcientlr
covered the issues. Ihid.
4. To establish the market value of gravel sold and delivered by
the load to the defendant, plaintiff introduced evidence as to-
what other persons had paid him per load and of the compara-
tive size of the loads. Held, that such evidence was incompe-
tent, but, its introduction having been permitted, it was error
to exclude testimony, offered by defendant in rebuttal thereof,^
stated in the opinion. Ibid.
Rescission hy buyer.
5. A vendor by expressly refusing to receive back a machine after
breach of warranty, as provided by the contract of sale, waives
the return thereof to the place where received as a condition of
rescission. /. /. Case T. M. Co, v, Johnson, 534
6. The evidence in this case as to the scope of the authority of &
general agent of the vendor is held to sustain a finding that his
act in refusing to receive back a machine was the act of the
vendor, although the written contract of sale provided that no
person had authority to waive, alter, or enlarge the contract.
Ibid.
7. Use of a machine by vendee by way of reasonable test only is no
obstacle to a subsequent rescission of the contract of sale. Ibid.
Breach by seller. See Damages, 7-10.
Warranties. See Sales, 5-7.
SCHOOLS AND SCHOOL DISTRICTS.
Oovemmeni: Power to determine amount to be raised for school pwr--
poses in cities operating under general charier law.
1. Where it is sought to show that the provisions of the general
charter law relating to schools do not apply to a city adopting^
that law in its entirety, and that the provisions of a special
charter do apply, the language relied on to express such intent
should be reasonably plain, and it should not be extended by
implication or by doubtful construction so as to vest important
powers in different bodies in cities operating under a general
law. State ex rel. Jones v. Burke, 524
2. Under the special charter of the city of Beaver Dam the power ta
determine the amount of school moneys to be raised was vested
in an elective school board. The city adopted the general char-
ter law, under sec. 925 — 113 of which "the election and organiza-
tion, powers and duties" of the board were not affected. That
section was subsequently repealed and a new section enacted,
providing that where there was an elective board "the plan of
school organization and management*' should continue until
changed by vote of the electors. Held, that the power to de-
termine the amount of school moneys to be raised was not a part
of '*the plan of school organization and management," and that
after the enactment of the new section (sec. 925 — 113, Stats.:
Laws of 1907, ch. 480) that power was in the common council^
being vested in that body by other provisions of the general
charter law. Ibid.
Claims: Actions against school officers.
8. In an action upon an agreement by which defendants bound them-
selves Individually and as school district officers to pa> for cer-
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tain goods in cash or a legally issued school warrant, plaintiff
cannot recover from the defendants individually without show-
ing that the school warrant which was in fact issued as pay-
ment was illegally issued. State Bank v, Kienberger, 517
4. A school warrant or order issued by the proper officers of a school
district will be presumed to be a legal order until the contrary
is shown. Ibid.
5. Where a purchase of school supplies was never authorized or ap-
proved at a meeting of the district board, as required by sees.
432, 436, Stats. (1898), and a school warrant or order issued in
payment therefor was not authorized or ratified at a board meet-
ing but was signed by the members of the board independently
and not in the presence of each other, such warrant v. as not
legally issued. Ibid.
Setoff. See CoimiACTS, 13.
Shxriffs. See Courts, 6, 7.
Sidewalks. See Municipal Corpoeattons, 17, 18, 21, 22.
Special Laws. See Cohstitutional Law, 11. Municipal Corpoba-
tionb, 23.
Special Verdict. See Carrierb, 5, 7. Highways, 11, 12. Master
AND Servant, 11, 12, 32. Neqligence, 3. Sales. Street
Railways, 3. Trial, 3, 6-7.
Specific Performance. See Contracts, 3. Ejectment, 5-8. Vendor
AND Purchaser, 7.
Spsculahyb Damages. See Damages, 2, 4, 6.
STATES.
Property;: Municipal regulation,
1. Statutes in general terms do not affect the state If they tend lot
any way to restrict or diminish its rights or interests. Milioath
kee V, McOregor, 3S
2. Genera] prohibitions in general laws, or in a city ordinance made
pursuant to general charter authority, apply to all private par-
ties but are not rules of conduct for the state. Ibid.
3. The state may have the benefit of general laws but is not ad-
versely affected by any unless it is so expressly provided. Ibid.
4. A state board empowered to take and hold the title to property
for state purposes does not own such property in any proprie-
tary sense, — it is state property, to all intents and purposes, the
same as in case of title thereto being formally vested in the
state. Ibid.
5. In case 'Of the construction of a building by a state board for
state purposes under state authority the matter is wholly of
state concern and not under any general state or municipal reg-
ulation. Ibid.
STATUTES.
Enactment. See Constitutional Law, 1, 2, 5-7,
Private or local laws. See Constitutional Law, 1, 2, 5-7, 11.
Mandatory or directory? See Criminal Law, 1. Courts, 8. Muisnci-
PAL Corporations, 19. Statutes, 2.
Penal statutes. See EFvidence, 1. Statutes, 3-5.
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Amendment. See Schools and School Districts, 1, 2.
Repeal. See Constitutional Law, 12, 13.
Validity.
1. Where parts of a statute are valid and capable of being executed
independently of other parts which are invalid, the valid parts
may become operative unless the court can say that the legisla-
ture intended that all the provisions should be carried into ef-
fect as a whole and as conditions and compensations for each
other. State ex rel. Williams v. Sawyer Co. 634
Exceptions in statutes. See Health. Indictment and Informa-
tion, 1.
Construction. See Appeal, 1, 19-22. Automobiles. Constitutional
Law, 3, 7, 10. Corporations, 2-4. Costs, 3, 4. Courts, 2,
3, 8. Criminal Law, 1, 25. Damages, 13. Descent and Dis-
tribution. Dower, 1-3. Drains. Evidence, 6. Food, 1.
Highways, 4-6, 13, 14. Insane Persons, 1, 2. Justices' Courts.
Master and Servant, 4, 12, 22, 23. Mills and Milldams, 1-5.
Municipal Corporations, 3, 6, 8, 10, 19, 21, 23. Officers, 4.
Railroads, 2-4, 6-15, 17-25, 28. Schools and School Districts,
1, 2, 5. States, 1-3. Street Railways, 1, 2. Sunday JIjaws,
1, 2, 5. Taxation, 1, 4. Tax Titles, 1, 2, 4-6. Trial, 4, 5.
Trusts and Trustees. Witnesses, 3, 4.
2. The ordinary and natural meaning of the word "may," when
used in a statute, is permissive and discretionary, not manda-
tory, although it is construed as mandatory when such con-
struction is necessary to give effect to the clear purpose and
Intent of the statute. Barber A. P. Co. v. Oshkosh, 68
3. A penal statute is open to construction when there is reasonable
uncertainty as to its meaning. Wcirich v. State, 98
4. In case of there being two or more equally reasonable meanings
of a penal statute, that one is to be regarded as expressing the
legislative will which is the least severe as regards previous
conditions. Ihid.
6. The rule of strict construction of a penal law Is subordinate to
the rule of reasonable, sensible construction, having In view
effectuation of the legislative purpose. Ibid.
6. Where the words of a statute are plain in meaning and lead to no
absurd result there is neither room for construction nor justifi-
cation for the elimination or change of words. Ashland v.
Maciejewski, 642
Federal statutes. See Bankruptcy, 3. Indians, 3, 5. Pensions, 1.
STATUTES CITED, Ero.
(See page xxxlii, following Cases Cited.)
Stock and Stockholders. See Contracts, 14, 16, 17. Corpora-
tions, 1, 5.
STREET RAILWAYS.
Interurban railways: Condemnation of streets. . .
1. A corporation having a franchise from the state to operate a street
railway for carrying passengers in the city, and no authority to
operate an Interurban railway on the streets, had no right to
condemn the use of the street for interurban railway business;
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and until it acquired such right the period of limitation under
sec. 4222, Stats. (1898), barring proceedings by a landowner un-
der sec. 1852, did not begin to run. In re Plotoright, 512
2. Delay of an interurban railway company for more than four
months after acquiring the right to Institute proceedings for
condemnation of a street is held, under the facts of this case, to
warrant a landowner In proceeding in the matter under sec.
1852, Stats. (1898). Ibid.
Injuries to travelers,
Z. In an action for death of a person caused by collision between h{<3
wagon and a street car which came from behind, findings in a
special verdict, supported by the evidence, stated In the opinion,
establish the contributory negligence of the deceased and are
not nullified by a further finding that he was not guilty of such
negligence. Vetter v. Southern Wis. R. Co, 29$
4. A person driving on the highway is bound to look and listen for
the approach of a street car before going so near the track that
a car cannot pass without striking his wagon; and it is Imma-
terial in such a case whether or not he intends to drive upon or
across the track. Ibid,
Injuries to passengers. See Carbiers, 8.
Streets. See Mi'nictpal Corporatioiys, 17-25. Tklbqraphs Ain>
Telephones, 1, 2.
SUBSCRIPTIONS.
See Religious Societies.
1. A subscription for the building of a church, made upon condition
that the subscriber should not be called upon for certain work
and that the church corporation should accept It as being in
full of his share of the expense of building, was a mere offer
until accepted as stipulated. Evangelish L. 8t, M, Oemeinde v.
Pruess, 34»
2. Where no other kind of acceptance is stipulated for, a subscrip-
tion may be accepted by expending money and erecting a build-
ing in accordance with the offer. Ibid,
8. The evidence In this case is held not to show, as matter of law,
acceptance of a subscription upon the condition stipulated, be-
fore a withdrawal thereof. Ibid.
SUNDAY LAWS.
1. In sec. 4595, Stats. (1898), the exception of "works of necessity
and charity" relates to the doing of "labor, business or work"
and not to keeping open a "shop, warehouse or workhouse."
Stark V. Backus, 557
2. The proviso added to said sec. 4595 by ch. 300, Laws of 1909, that
"keeping open a barber shop on Sunday . . . shall not be
deemed a work of necessity or charity," did not chancre the ef-
fect of the statute or render it invalid as being discriminatory
against the keepers of such shops and as denying to them the
equal protection of the law or depriving them of liberty or
property without due process of law. Ibid.
8. Neither before nor after the addition of such proviso could keep-
ing open a barber shop on Sunday be justified as a work of ne-
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cessity or charity; nor would the state be obliged, In a prose-
cution for keeping open any shop, workhouse or warehouse in
violation of said section, to plead or prove that such act was
not a work of necessity or charity. /Md.
4. Even if, when it enacted said proviso, the legislature supposed
that the exception as to works of necessity and charity applied
to the keeping open of a shop, warehouse, or workhouse, that
fact is not controlling upon the question of the construction of
the pre-existing statute. Ibid,
6. The complaint in this action to have sec. 4595, Stats. (1898), as
amended, declared void, and to restrain the district attorney
and others from instituting any proceeding against plaintiff
for violation thereof, is held not to make a proper case for the
exercise of the power of a court of equity to enjoin the enforce-
ment of the criminal law. Ihid.
Supreme Court. See Appeal. Criminal Law, 25, 26.
Surveys. See Highways, 6-9.
TAXATION.
Exemptions.
1. Property of a railway company necessarily used in operating its
road is exempt from local taxation under sec. 1215 — 25, Stats.
(Supp. 1906), if the use to which it is applied is a public use
under the articles of incorporation and charter of the company.
State ex rel. N. W. C. R. Co. v. Willcuts, 448
2. Whether the property of a railway company is devoted to a pub-
lic use is not determined by the extent of the use but by the
right of the public generally to use it and the fact that it is
used by all who desire to do so. Ibid,
3. The mere fact that a large part of the business done by a railway
company is done for a coal company owned and controlled by
practically the same persons, does not deprive the railway com-
pany of its character as a common carrier or render its prop-
erty devoted to a private use, so long as it was in fact organized
as a common carrier and serves the public in that capacity, al-
though location and conditions limit the extent of such service.
Ibid.
Assessment. See Certiorarl
Reassessment.
4. The power of the county board under sec. 1186, Stata (1898), to
direct a reassessment of the taxes Justly chargeable upon lands
when the original assessments were invalid because of irreg-
ularities in the tax proceedings, embraces all cases in which,
under sec. 1184, by reason of the invalidity of the tax salea
or certificates, the county is liable to refund the money paid
to it, including a case where the land was misdescribed in the
original assessment and the tax certificate, if the description
was sufficient to enable the board to ascertain what land was
actually attempted to be assessed. Roberts v. WaukesJia Co. 593
Taxpayer's Action. See Pleading, 6.
TAX TITLES.
Taliditj/. See Cancellation op Instruments.
Notices of tax sale: Posting and fmblication: AtHdavits,
1. If the affidavit of the posting of notices of a tax sale declares con-
duct of the treasurer in the posting which complies with the
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statute, the validity of that step In the proceedings is estab-
lished* prima facie. A statement therein that the notices were
posted in four public places, accompanied by a specification of
places not inherently non-public, is such evidence as, undis-
puted, establishes the fact required by sec. 1130, Stats. (1898).
Bouchier v. Hammer, 648
2. The term "public place*' in sec. 1130, Stats. (1898), means a place
where the public resort, so that the posting of a statement there
is likely to give notice. Ihid.
3. An affidavit stating that the place in the county treasurer's office
at which one of the notices was posted was a conspicuous place,
satisfies the statute, and It Is not necessary to define with par-
ticularity the exact spot in that office upon which sueh notice
was posted. Ibid.
4. A printer's affidavit stating that the notice of a tax sale which
took place on May 17 was printed and published In a certain
newspaper "once in each week for four successive weeks, com-
mencing on the 15th of April and terminating on the 6th of
May," shows a publication once In each week for four successive
weeks prior to the date of sale, as required by sec. 1130, Stats.
(1898), although the printing terminated In twenty-two days.
n>id.
5. An affidavit of nonoccupancy, made five days before the tax deed
was Issued, which declared both that at the time It was made.
May 16, there had not been thirty days of continuous actual oc-
cupancy, and that on that day there was no occupancy, estab-
lishes the fact that there could not have been the thirty con-
secutive days' occupancy within the meaning of sec. 1175» Stats.
(1898), on May 21, the date of the deed. Ibid.
.Payment of tax.
6. The holder of a tax certificate issued in 1902 who purchased the
land at the tax sales In 1903 and 1904 did not thereby pay the
taxes so as to prevent him from claiming title under either of
the tax deeds based on such sales. Bouchier v. Hammer, 648
Persons entitled to acquire tax titles.
7. A person employed by a lumber company as superintendent and
In charge of Its business In a county was not precluded by such
position from taking a certificate In his own name at a tax sale
of the company's land, where he was not charged with the duty
of paying the taxes nor furnished with money for that purpose.
T. D. Kellogg L. d M. Co. v. Webster M. Co. 341
• 8. Where under a mortgage or trust deed the owner of the equity
of redemption is bound to pay all taxes upon the land he can-
not, as against the mortgagee, ascribe such payment to his attl*
tude as claimant under a tax title, especially where the tax title
is void as a title and effective merely as a lien. Roach v. San-
bom L. Co. 435
'9. In an action by the holder of notes secured by a trust deed to set
aside certain tax deeds of the lands it was decided on a former"
appeal that the tax deeds were void and that plaintiCT was en«
titled to have them set aside on payment of the amounts for
which the lands were sold and "the amounts of subsequent
taxes paid by the tax-title claimant," with interest, as pro-
vided in sec. 1210/1, Stats. (1898). Before the action was com-
menced defendant had acquired the fee title to the equity of re-
demption from the grantors in the trust deed, which deed con-
tained the usual covenant for payment of taxes. Held, that
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taxes paid by defendant after acquiring such fee title were not
"paid by the tax-title claimant" within the meaning of the for-
mer decision, and plaintiff was not bound, either by sec. 1210?t
or by the mandate on the former appeal, to reimburse defend-
ant therefor. IM<L
TELEGRAPHS AND TELEPHONES.
Regulation: Removal of poles.
1. Where a telephone company, operating under a city ordinance re-
quiring it to locate its poles as directed by the council, paid no-
attention to a resolution of the council, served upon the com-
pany, directing removal of a pole set without previous author-
ity, Jt cannot complain because the mayor and other officers car-
ried out the directions of the council and removed the pole.
Monroe Teh Co. v. Ludlow, 510-
[2. Whether the mayor and aldermen were justified In summarily
removing the pole as an obstruction in the public streets under
sees. 1326, 1347, Stats. (1898), not determined.] Jhid.
Damages. See Damages, 4-6.
Bame: Instructions to jury.
3. In an action against a telegraph company for damages caused by
failure to deliver a telegram, an instruction that, in order to^
find that plaintiff lost a contract of employment by such nonde-
livery, the Jury must be satisfied that the person sending the
telegram had authority from the alleged employer to make such
contract, did not invade the province of the jury and was not
erroneous, there being evidence of such authority. Btumm v.
W. V. Tel. Co. 628-
Tims Checks. See Ratlhoads, 86, 87.
Title of Acjt. See Constitutional Law, 6-7-
Toll Roads. See Automobiles. Highways, 8.
Towns. See Highways, 10-12.
TRIAL.
Reception of evidence. See Appeal, 22, 24-26. Bouitbabibs. Crim-
inal Law, 2-9. Food, 1. Highways, 15. Homicide, 1, 2.
Justices' Courts. Masteb and Servant, 17, 28, 29. Sales, 4.
Witnesses, 4, 5.
Arguments and conduct of counsel.
1. A model produced by plaintiff having been excluded because in>
correct, remarks of plaintiff's counsel in his argument to the
jury to the effect that defendant produced no model because it
would be less favorable to it than that produced by plaintiff,
are held not ground for reversal, in view of an instruction to
the jury that no Inference adverse to defendant should be drawn
from the argument of plaintiffs counsel, except in so far as that
argument was based on testimony. Monaghan v. N. W. Fuel
Co. 457
Talcing case or question from the jury. See Carriers, 4. Contractts,
2. Criminal Law, 10, 11. Damages, 5. Insurance, 2. Mas-
ter and Servant, 3, 4, 8, 16. Railroads, 30, 32, 33. Tele-
graphs AND Telephones, 3.
2. On a jury trial where different minds might reasonably draw dif-
ferent conclusions from the evidence as to a fact in issue, the-
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INDEX. 737
Jury» rather than the court, should draw the inference. Miller
V. Sovereign Camp, 505
Instructions to jury. See Appeal, 3, 23. Cbiminal Law, 12-18, 22.
Damages, 16, 17. Highways, 16-18. Master and Servant,
13, 18, 32. Negligence, 1, 2. Railroads, 31, 33, 34. Tslb-
«RAPn8 AND Telephones, 3. Witnesses, 6.
Requests for instructions. See Appeal, 3. Highways, 17. Mas-
ter AND Sertant, 18, 32. Negijgence, 2.
3. In the absence of a request therefor, omission to give any in-
structions relative to a question submitted for special verdict
is not error.. Monaghan v. 2f. W. Fuel Co. 457
Findings. See Appeal, 6, 11-lV, 28. Divorce. Mills and Mill-
dams, 5, 6. Navigable Waters, 1.
Verdict. See Criminal Law, 6, 19-21. Homicide, 4, 5. New Trial, 2.
4. Under sec. 2858m, Stats. (Laws of 1907, eh. 346), defendant, hav-
ing failed to request that the question of its negligence be sub-
mitted to the Jury, waived the right to have the Jury pass
thereon; and, there being evidence to support a finding of such
negligence, it must be presumed that the court in rendering
judgment for plaintiff determined the question adversely to de-
fendant. Bates V. C, M. d St. P. R. Co. 235
Special verdict. See Carriers, 5, 7. Highways, 11, 12. Masteb
AND Servant, 11, 12, 32. Negligence, 3. Sales, 3. Street
Railways, 3. Trial, 3.
6. In an action for malicious prosecution the special verdict did
not contain any finding as to whether or not there was probable
cause for the prosecution, but Judgment was rendered thereon
for plaintiff. Held, under sec. 2858m, Stats. (Laws of 1907,
ch. 346), the case must be treated on appeal as though the
court had found as a fact that there was lack of probable cau8«
and appellant had excepted to the finding. Farrell v. Phillips,
611
6. E^ach separate question of a special verdict is to be answered
upon all the competent evidence bearing thereon and as if this
were the only issue in the case. Nelson v. A. H. Stange Co. 657
7. Where by separate answers defendant's actionable negligence in
three particulars was found in a special verdict, a further find-
ing that "such negligence was the proximate cause of plaintifTs
injury" was not insufficient on the ground that the jury might
not have been unanimous as to which particular Item of negli-
gence was the proximate cause. Ihid.
TRUSTS AND TRUSTEES.
See Bankruptcy.
Under sees. 2086, 2087. Stats. (1898), when a trust in lands is
created and the lands at the same time granted or devised sub-
ject to the execution of the trust, the trustee takes only such
interest as the purposes of the trust require, and the grantee
takes the entire title as against the world in general, and as
against the trustee he takes the beneficial equitable interest
subject only to the execution of the trust according to its terms.
Will of Prasser, 92
Vol. 140-47
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738 INDEX [140
Undttb ImrLuiEHOx. See Wn^us, 2.
VABiANCic. See Embezzlembnt, !• Pood, 1. PLBADnro, ?• Priw-
GiPAL AND Surety.
VENDOR AND PURCHASER OF LAND.
Construction and operation of contract.
1. Whether, where a railroad company had agreed to procure cer-
tain land and convey It to plaintiffs "by good warranty deed"
in exchange for land owned by them, the tender to them of a
full warranty deed from the tme owner of the land might be
held a sufficient performance on the part of the company, even
without covenants of warranty from itself, not determined.
Mahn V, C. d M. E, R, Co, 8
2. Where, in such case, plaintiffs were informed when sucli war-
ranty deed was tendered that the grantor named therein held
title "in trust" for the railroad company, and that the consid-
eraticm for the land had been paid by the company, the nature
of the trust not being disclosed, they were not bound to accept
the deed as a compliance with the contract Ihid.
8. Upon the failure of the company to perform on its part the agree-
ment to exchange lands, plaintiffs had the right either to sue
for damages for the breach or to rescind the contract. The com-
pany couM not compel them to sell their land for a sum of
money which they had never agreed to accept Ihid,
4. Plaintiffs in such case having brought suit in equity for rescis-
sion of the agreement, the failure of the railroad company to
object may be deemed a consent that the court, by exercise of
its equitable powers, grant whatever form of relief is proper
under the circumstances. Ihid,
6. The agreement for exchange of lands having been followed by
completed construction of the railroad over plaintiffs' land, no
mere recovery at law could fully re-establish plaintiffs' rights,
since the transaction amounted at least to a consent to the con-
struction of the road, and such a status, once created by con-
sent, would not be disturbed. Ihid,
6. Unless completely rescinded, the written agreement for exchange
would constitute an obstacle to plaintiffs' obtaining statutory
compensation »for the part of their land applied to railroad
uses, and even after declaration of rescission It would be a
cloud upon the title which equity should remove. Ihid,
Performance of contract. See Ejectment, 6-8.
7. In an action by the vendor for specific performance of a land con-
tract, findings as to the true location of a quarter-post as estab-
lished by the original government survey, and that the true
boundaries of the tract sold were pointed out by the vendor to
the vendee, are held to be sustained by the evidence. Bay v,
Egertsen, 629
8. A mere representation by description In a land contract that the
land Is half of a certain designated quarter-section cannot in
an action for deceit or for rescission be held to be a represen-
tation that It contains eighty acres. Ihid.
9. Designation of a tract of land In conversation between the vendor
and vendee as "the east eighty" of a certain quarter-section was
not In this case intended or understood as a representation of
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DTOEX. 789
quantity or area, but was merely a short way of referring to
the government subdivision. Ihid,
Vebdict. See Crihii^ai^ Law, 6, 19-21. New Tbial, 2. Tbial, 4-7.
Vested Rights. See Dower, 1. Railboadb, 4. Wnxs, 4-6, 10.
Viixaoes. See MimicirAL Corporations, 1-6. 17, 18, 20-22.
VoiB Dire. See Jurors.
waiver.
See CowTRACTS, 13. Criminal Law, 27. Damages, 9. Insurance,
3, 4. Pleading, 5. Sales, 5. Trial, 4.
1. If a person with knowledge, actual or constructive, so acts in
regard to contractual relations that the reasonable inference
under all the circumstances is that he has abandoned a claim
of right, and the adverse party in such relations acts on the
faith of such inference, as a general rule an effectual intent
to waive is implied though there is no such intent in fact, and
even if there.be an undisclosed intent to the contrary, and re-
gardless of any element of estoppel strictly speaking. Afc-
Naughton v, Des Moines L. Ins, Co. 214
2. Waiver must be with knowledge or with reasonable means of
knowledge of the facts and with intent to forego some right, al-
though the knowledge may be either actual or constructive and
the intent expressed or implied. Oastello v. Citizens State
Bank, 275
Warranty. See Contracjts, 15.
Waters and Watercourses. See Constttutional Law, 7-9. Cor-
porations, 2. Drains, 1. Eminent Domain, 2. Mills and
MiLLDAMS. NAVIGARLE WaTERS.
Waterworks. See Municipal Corporations, 26, 27*
WILLS.
Promote : Mental capacity.
1. Evidence stated in the opinion is held to sustain a finding that
testatrix had sufficient mental capacity to make a will. Fowler
.V. Crandalh 291
Same: Undue influence.
2. Evidence stated in the opinion is held to sustain a finding that
the execution of a will was not procured by undue influence.
Ibid.
Construction: Nature of estates aikf interests created.
3. In determining the nature of an estate created by will the will it-
self is to be first construed to ascertain the testator's intention,
and afterwards the statute is to be consulted to ascertain how
far the estate intended is affected thereby. Will of Prasser, 92
4. In the construction of a will the law leans, in doubtful cases, in
favor of an absolute rather than a defeasible estate, and of a
vested rather than a contingent interest. Ibid.
5. While the general rule is that a gift will be deemed contingent
when it is found only in a direction to divide at a future time,
this is subordinate to the primary rule that the intent, to be
collected from the whole will, must prevail. Ibid.
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740 INDEX. [140
6. A will gave the use of all testator's property to his widow during
her life, and provided that after her death the property should
be held In trust for ten years, the net income during that time
to be divided equally among his children. It then provided that
after the expiration of said ten years "all my estate and prop-
erty then remaining in the hands of my said trustees I hereby
give, devise, and bequeath unto all my children in equal parts,
share and share alike." Held, that the interests of the children
became vested at the time of testator's death, subject only to
the life estate of the widow and the ten-year trust. Ibid.
7. A will giving to a person named "all the rest, residue, and re-
mainder" of an estate, subject to certain bequests, does not dis-
pose of a remainder over at the death of such peison. Bowker
V. Shields, 330
S. A will bequeathed money in trust for the support of an insane
son of testatrix, and provided that after his death the residue
thereof be divided among her nieces "who may be unmarried at
that date." At the death of the son six nieces of the testatrix
were living, four of whom had never been married and two had
been married since before the date of the will. Held that, ap-
plied to such situation, there could be no ambiguity in the word
"unmarried." McMichael v. Peterman, 689
9. Whether such bequest, by being in restraint of marriage and by
offering Inducement to the married nieces to become unmarried
by divorce or otherwise, is so contrary to public policy as to
be invalid, not determined. The married nieces not being shown
to be next of kin or beneflcially interested in the estate are not
prejudiced by a decision of the circuit court holding the bequest
valid. Ibid,
10. It cannot be considere4 that such bequest gave a vested estate
from testatrix's death to all the nieces (including those then
married) as a class, with simply a condition subsequent divest-
ing such Interest In the event of marriage, and that such con-
dition is void as 'against public policy. Under the terms of the
will the married nieces were never members of any such class.
Ibid,
Same: Rights of devisees and legatees: Lapses. See Descent and
Distribution.
WITNESSBa
Compensation. See Ck>8T8, 2.
Competency. See Eminent Domain, 6. Evidence, 8, 9. Hiqhwatb, 16.
Husband and Wife, 2.
Examination. See Eminent Domain, 5, 6. EJvidence, 10-12. BIas-
TER AND Servant, 14.
Cross-examination. See Contracts, 1. Evidence, 8. Master and
Servant, 14. Witnesses, 5.
1. Where, from the questions asked, an attempt to extend a cross-
examination to matters not covered by the direct examination
could fairly be inferred, It was not an abuse of discretion to
limit the cross-examination rather strictly. Dralle v. Reedsburg,
319
2. Cross-examination need not be limited to the exact words of the
direct examination. Nelson v. A. H. Stange Co. 657
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Credibility. See Criminal Law, 8, 15, 16.
3. Contempt of court, either civil or criminal, is not a "criminal of-
fense" within the meaning of sec. 4073, Stats. (1898), which per-
mits "conviction of a criminal offense" to be proved to aftect
the credibility of a witness, either by the record or hy cross-
examination. Farrell v. Phillips, 611
4. Where, under sec. 4073, Stats. (1898)» the credibility of a witness
is sought to be aCTected by proof of conviction of a criminal of-
fense, such proof should consist of the record of the conviction
and judgment alone, and not the full record of the case. Ibid,
5. A single isolated act of contempt of court committed twelve
years prior to the trial does not properly come within the rule
which permits, upon cross-examination, inquiries into the previ-
ous life, habits, and occupation of a witness, as tending to throw
light on his veracity. IbUL
Same: Instructions to jury.
6. A charge that the testimony of a witness was of a negative char-
acter and not entitie'd to the same weight as that of another
witness was erroneous, both because the testimony of the first
witness, though negative in form, was positive in fact, and be-
cause the jury might well be of the opinion that the witnesses
were not equally credible. Bodenheimer v. C. dN.W.R, Co. 623
Corroboration. See Criminal Law, 16. Rapk.
Words and Phrares.
Adverse, in finding. See Mills and Milldams, 6.
Aggrieved, in statute. See Insane Persons, 2.
All the rest, residue, and remainder, in will. See Wills, 7.
Any milldam, in statute. See Mills and Milldams, 1.
A question of engineering. See Carriers, 2.
Bond, contract, or other obligation, in statute. See Municipal Cor-
porations, 16.
By good warranty deed, in contract See Vendor and Purchaser,
1, 2.
Corporate power or privilege. In constitution. See Constitutional
Law, 10.
Could, in instructions to jury. See Master and Servant, 18.
Criminal offense, in statute. See Witnesses, 3.
Direct loss or damage by fire, in insurance policy. See Insur-
ance, 1.
Engaged in the line of his duty as such, in statute. See Master
AND Servant, 4.
Estate of inheritance. See Dower, 4.
Flowing of lands of the owner. See Binxs and Milldams, 4.
Hostile fire. See Insurance, 1.
Injury. See Evidence, 10.
Inspect. See Master and Servant, 9.
Lawful business or purpose. See Corporations, 8.
Legally issued. See Schools and School Districts, 5.
May. in statute. See Municipal Corporations, 19. Statutes, 2.
Milldam, In statute. See Mills and Milldams, 2.
Office. See Officers, 2.
Other things, in Instruction to jury. See Master and Sertakt, 32.
Paid by the tax-title claimant. See Tax Titles, 9.
Person aggrieved. In statute. See Insane Persons, 1,.2.
Plan of school organization and management. See Schools and
School Districts, 2.
Public highway, in statute. See Automoeiles. Hiohways, 1-5.
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742 INDEX [140 Wis.
Public place, In statute. See Tax Tttuu, 2, Z.
Public purpose. See Eminent Domain, 2.
Public use. See Taxation, 2, 3.
Regulate. See Municipal Ck)BPOiLATiON6, 7.
Reserving the pine and cedar timber now growing or being thereon
and the right to cut and remove same, in deed. See Deeds, 2.
Restrain. See Municipal Cobpobations, 7.
Seised of an estate o/ inheritance, in statute. See Dowsb, 3.
Beisin, in statute. See Doweb, 1.
Bhall inure wholly to the benefit of such pensioner, in statute.
See Pensions, 2.
Simple tool. See Mabtxb and Servant, 7.
The east eighty, In conreyance. See Vendor and Purchases, 9.
Unmarried, In will. See Wills, 8.
With the right of the grantee to enter upon said lands and remove
said timber any tim^ on or before (a certain date), in deed.
See Deeds, 3.
Works of necessity or charity, in statute. See Sundat Laws, 1.
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