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► 



HARVARD LAW LIBRARY 



R«.i.ri JUL 3 1 1916 




-r/ 



'■ K j'.' 



WISCONSIN REPORTS^ / 

162 



CASES DETERMINED 



IN THE 



SUPREME COURT 



OF 



WISCONSIN 



January 11 — April 15, 1916 



FREDERIC K. CONOVER 

O OmciAL Rbportbr 



CHICAGO 
CALLAGHAN AND COMPANY ^ - 

1916 : , ■: > 



COPTRIOBT, 1916^ 
BY 

THE STATE OF WISCONSIN. 



JUL 3 1 1916 



JUSTICES 



OF THK 



SUPREME COURT OF WISCONSIN 



DUBINa THE PSBIOD COMPRISED IN THI9 VOLUME 



JOHN B. WINSLOW 

Bx officio Chuf Justicb 

ROUJET D. MARSHALL 
ROBERT G. SIEBECKER 
JAMES C. KERWIN 
WILLIAM H. TIMLIN 
JOHN BARNES 

(UdUI Febniaiy 22, 1916) 

AAD J. VINJE 

MARVIN B. ROSENBERRY 

(From February 88, 1916) 



Attorney General - - Walter C. Owen 



Clerk .... Arthur A. McLeod 



MEMORANDA. 

Mr. Justice Mabshall took no part in the decision of the cases re- 
ported in this YOlume on pages 421-^06, 533-608. 

Mr. Justice Timun took no part in the decision of the cases re- 
ported on pages 539-664, 568-602. 

Mr. Justice Rosenbebby took no part in the decision of those cases 
which were argued or submitted prior to February 23, 1916. 

ERRATA. 
Vol. 156. 
Page 580, lines 3, 4 in syllabus. For employee, read employer. 

Vol. ;161. 
Page 59, line 14. For R. L. Wilcox, read R. P. Wilcox. 



TABLE 

OF 

CASES REPORTED. 



Amery Mercantile Co., Sprout, Waldron & Co,v 279 

Andreyszak v, Werthmann 554 

Blaster and servant: Injury in operating sausage machine: 
Contribatory negligence: Special verdict: Inconsistency: 
Unsupported findings. 

Appleton Woolen Mills, Green v 145 

Arapahoe State Bank v. Houser 80 

Service of summons: Return of officer: Impeachment. 

Bdbcock, Ward v 539 

Baker Land & Title Co. v. Bayfield County Land Co 471 

Tax titles: Aflidavit of publication of notice of sale: Filing 
with county clerk: Presumption of filing by treasurer: Ef- 
fect of filing before instead of after sale: Preservation of 
evidence. 

Ballard v. BeUevue Apartment Co 105 

Elevators: Injury to child: Contributory negligence: Ques- 
tions for Jury. 

Bankers Surety Co., Mohawk Co.v 272 

Banks v. Banks 87 

Divorce: Cruel and inhuman treatment. 

Bayfisld County v. Pishon 466 

Taxation of incomes: Statute construed: Nonresidents: In- 
come of trust estate located elsewhere but administered by 
Wisconsin court. 

Bayfield County Land Co., Baker Land & Title Co.v 471 

BeUevue Apartment Co., Ballard v 105 

Biever, Hiltgen v 315 

Bradford Piano Co. v. Hacker 335 



vi CASES EEPORTED. [162 

Brohst V. Marty 296 

Partition of personal property of unincorporated association: 
Building erected on land given with provision for a re- 
verter: Fixtures. 

Browne, Putnam v 524 

Budlong, Morgan v 578 

Burkhardt Milling & Electric Power Co. v. City of Hudson 361 

Taxation: Recovery of illegal taxes: Payment of more than 
equitable share: Parties: Pleading: Public utility in sev- 
eral districts: Apportionment of assessed valuation: Proper 
ratio. 

Burns, Rhein v 309 

Bystrom Brothers v. Jacobson • 180 

Workmen's compensation: Statute construed: "Accident." 

Calhoun v. Oreat Northern R. Co 264 

Railroads: Negligence: Death of switchman: Defective run- 
ning boai'd: Evidence: Sufficiency: Proximate cause: In- 
spection: Federal statutes, when applicable: Pleading: In- 
terstate commerce: Survival of actions: Separate recovery 
for suffering: Double recovery: Dependents: Appeal: Ver- 
dict, when conclusive. 

Ca^e Plow Works v. J. I. Case Threshing Machine Co 185 

Chadbourne, State ex rel. Richter v 410 

Chicago, Milwaukee & St, Paul R, Co., Martin v 595 

Chicago, Milwaukee & St. Paul R. Co., Molzoff v 451 

Chicago, Milwaukee & St. Paul R. Co. v. Rock Co. S.Co. . . 374 

Interstate commerce: Regulation: Constitutional law: Fed- 
eral authority paramount: Conflicting state statutes: Rail- 
roads: Demurrage: "Additional free time" for unloading 
cars: Statutes: Construction: Partial or total invalidity: 
Burden on interstate commerce. 

Chicago & Northwestern R. Co., Curtice v 421 

Chicago & Northwestern R. Co., Porte v 446 

Chicago & Northwestern R. Co. v. Railroad Commission . . 91 

Statutes: Construction: Ditches, etc., to permit natural drain- 
age: Duty of railway company: Enforcement: Jurisdiction 
of railroad commission. 

Chicago & Northwestern R. Co. v. Rock County 8. Co 382 



Wis.] cases EEPOKTED. vii 

Chicago & Northwestern R. Co., Tarczek v 438 

Chicago & Northwestern B, Co., Wegener v 322 

Chippewa Valley Railway, Light & Power Co., Engen v. . 515 

Circuit Court, State ex rel. Wisconsin T., L., H. it P. Co. v. 234 

Citizens Savings & Trust Co. v. Rogers 216 

Banks and iMuiking: Liquidation by commissioner of bank- 
ing: Liability for rent: Offsets: Waiver: Bankruptcy: 
Rights of trustee: Possession of property: Surrender: Mort- 
gagee in possession: Right to rents: Courts: Enforcing lia- 
bility of commissioner of banking: Jurisdiction. 

Cohen v. Minneapolis, St. Paid & 8. S.M.R. Co 73 

Carriers: Live stock killed in transit: Right to damages: Con- 
dition precedent: Notice: Contract: Validity: Duty to wait 
for car not ready when train arrives. 

Collins V. State 349 

Highways: Obstruction: Statute construed: Action, civil or 
criminal? When a fence is an obstruction. 

Combined Locks Paper Co., Ocean Ace. & G. Corp. v 255 

Connolly v. Waushara Oranite Co 522 

Master and servant: Injury to employee in quarry: Unsafe 
working place: Contributory negligence. 

Conway v. Tovm of Orand Chute 172 

Money paid under unconstitutional law: Recovery: Subscrip- 
tions: Failure to comply with conditions: Highways: Im- 
provement: Towns: Liability to repay moneys subscribed. 

Conway, State, ex rel., v. District Board 482 

Coombs V. Southern Wisconsin R. Co Ill 

Street railways: Reasonable rules: Passenger on rear plat- 
form: Refusal to enter car: Right to eject: Questions for 
Jury. , 

Curtice v. Chicago & Northwestern R. Co 421 

Railroads: Negligence: Injury to employee: Action under 
state or federal law? Interstate commerce: Pleading: 
Amendment: Changing cause of action: Limitation of ac- 
tions: Construction of pleading: Intent of counsel. 

Dagan v. State 353 

Intoxicating liquors: Sale to Indians: Statute construed. 

Dahl, Weston v 32 



viii CASES REPOETED. [162 

Dawley, Gagen v 152 

Dean v. Dean 303 

Eyldence: Foreign laws: Pleading: Insurance: Benefit socie- 
ties: Change of beneficiaries: By-laws must be followed: 
Waiver by local officers: New by-laws, when binding on 
member. 

Deer Creek, Town of, Knapp v 168 

District Board, State ex rel. Conway v 482 

Donald, State ex rel. Owen v 609 

Eccles V. Free High School District of Kaukauna 162 

Judges: "Disability:" Disqualification by prejudice: Statute 
construed. 

Ekern, Bock v 291 

Elliott v. Fisk 249 

Wills: Validity: Undue influence: Evidence: Sufficiency. 

Engen v. Chippewa Valley Bailway, Light <& Power Co, , , 515 

Street railways: Injury to passenger: Negligence: Elxcessive 
speed on curve: Contributory negligence: Standing on plat- 
form: Questions for Jury: Evidence: Harmless errors: Ex- 
cessive damages: Examination of discharged employee as 
adverse witness. 

Federal Buhber Manufacturing Co. v. Havolic 341 

Workmen's compensation: When compensation allowed: In- 
Jury from horse-play: "Service growing out of and inci- 
dental to his employment." 

Fergen v. Lyons 131 

Landlord and tenant: Covenant for renewal: Specific enforce- 
ment: Certainty: Construction: Tender of payment: 
Waiver: Failure to pay rent, when defeats covenant to re- 
new. 

Fidelity & Deposit Co. of Maryland, Wisconsin Zinc Co, v. 39 

Fischbeck v. Mielenz 12 

Judgments: Setting aside after term: "Surprise:" Delay in 
entry: Mistakes: Correction: Jurisdiction: Validity of Judg- 
ment: Construction: Interest. 

Fisk, Elliott V 249 



Wis.] cases EEPOKTED. ix 

Foley t». Marsch 25 

Contracts: Statute of frauds: Possible performance within a 
year: Modification by oral agreement: Prior breach: Coun- 
terclaim: Mutuality: Rental value of appliances: Special 
▼erdict: Certainty in finding: Instructions to jury: Appeal: 
Harmless errors. 

Free High School District of Kaukauna, Eccles v 162 

m 

Gagen t\ Dawley 152 

Libel: Newspaper article: Punitory damages: Evidence: 
Harmless error: Justification: Instructions to Jury: Liabil- 
ity of owner of newspaper: Excessive damages: Reduction. 

Goddard & Co., Nelson v 66 

Grand Chute, Town of, Conway v 172 

Great Northern R. Co., Calhoun v 264 

Green v. Appleton Woolen Mills 145 

Infants: Guardians ad litem: Appointment: Master and serv- 
ant: Injury: When Compensation Act applicable: Minors: 
Prohibited employment: Dangerous machinery: Constitu- 
tional law: Obligation of contracts: Police power: Evi- 
dence: Competency: Special verdict: Issues: Instructions 
to jury: Excessive damages. 

Green r. City of Reedsburg 101 

Municipal corporations: Injury from broken guy wire: De- 
fect in sidewalk: When city chargeable with notice: Neg- 
ligence in maintaining lighting plant: Defective construc- 
tion: Inspection: Evidence. 

Green Bay, City of, Nuthals v 434 

Green Bay & Western R, Co., Hempton v 62 

Grenzow, Schmidt v 301 

Hacker, J. B. Bradford Piano Co. v 335 

Hamley v. Till 533 

Vendor and purchaser of land: Validity of contract: Insuffi- 
cient description: Bills and notes: Consideration: Unau- 
thorized corporate stock: Fraud: Holder in due course. 

Harder v. Reinhardt 558 

Bills and notes: Delivery for special purpose: Evidence: Con- 
temporaneous oral agreement: Recitals: Burden of proof. 



X CASES REPORTED. [162 

Harper, State ex rel. Nehrhass v 589 

Hart, Warden v 495 

Havolic, Federal Rubber Manufacturing Co. v 341 

Haycock v. Sovereign Camp, Woodmen of the World 116 

Life insurance: Benefit associations: Assessments: Default 
in payment: Advances by clerk: Suspension: Avoiding cer- 
tificate: Agency of clerk: What by-laws may provide. 

Hayes, Pawlak v *. 503 

Hempton v. Oreen Bay & Western B. Co 62 

Railroads: Injury to person taking short cut to depot: Un- 
lighted way: Negligence: Proximate cause. 

HiUer v. Johnson 19 

Street railways: Injury to passenger boarding car: Degree of 
care required: Instructions to jury: Experiments before 
jury as to extent of injury: Husband and wife: Competency 
as witnesses after divorce judgment: Excessive damages. 

HUtgen v» Biever 315 

Sale on trial: Retention and use: Acceptance. 

Houser, Arapahoe State Bank v 80 

Hudson, City of, Burkhardt Milling & Electric Power Co. v. 361 

L L, Lamm Co. v. Peaks 289 

Attachment: Demand not due: Condition precedent: Insuffi- 
cient undertaking: Vacating judgment and attachment. 

Illinois Central B. Co,, Smith v 120 

Independent Order of Foresters, Peterson v 562 

Industrial Commission, Menominee Bay Shore L. Co. v. ., 344 

Industrial Commissio7i, Pellett v 596 

Industrial Commission, Village of West Salem v 57 

Interlake Pulp <fc Paper Co., Murphy v 139 

International Harvester Corporation, Zaremba v 231 

Interstate Business Men's Accident Asso., Lundberg v. . . 474 

Jacobs V, Wisconsin National Life Insurance Co 318 

Contracts: Validity: Corporations: Powers: Life insurance 
companies: Sale of "profit-sharing bonds:" Consideration: 
Rescission by purchaser. 

Jacobson, Bystrom Brothers v 180 



Wis.] cases EEPORTED. xi 

Jay r. Northern Pacific B. Co 458 

Railroads: Injury to person crossing track: Contributory neg- 
ligence: Failure to look: Warning signals at highway cross- 
ings: Omission to give: When injury "caused" thereby: 
Warnings due only to travelers on highways. 

J. B. Bradford Piano Co. v. Hacker 335 

Sales: Refusal to accept: When property passes: Recovery of 
purchase price: Nominal damages for breach: Appeal: Af- 
firmance of judgment. 

Jensen v. Miller 546 

Money had and received: Payment to agent on land contract: 
Failure of owner to convey: Liability of agent. 

/. /. Case Plow Works v, J, I. Case Threshing Machine Co. 185 

Trade-marks and trade-names: Unfair competition: Use of 
similar corporate names: Distinguishing between prod- 
ucts: Injunction: Delivery of imperfectly addressed mail: 
Constitutional law: What name may be ti.ken by new cor- 
poration: Costs: Limiting amount: When disbursements 
not included. 

Jilek V. Zahl 157 

Reformation of contracts: Action at law: Change by amend- 
ment to equitable action: Statute regulating procedure, 
when applicable to pending litigation: Evidence: Suffi- 
ciency. 

Johnson, Hiller v 19 

Johnson, Look v 584 

Klaus V. Klaus 549 

Divorce: Cruel and inhuman treatment: Evidence: Suffi- 
ciency: Pleading: Particularity: Variance: Amendment to 
conform to proof: Final division of property. 

Knapp V. Town of Deer Creek 168 

Ditches to permit natural drainage: Duty of towns, etc.: En- 
forcement in equity: Exclusive remedy: Action for dam- 
ages: Filing of claim. 

Kopmeier, Timme v 571 

Kuryer Publishing Co, v. Messmer 565 

Appealable order: Denial of adverse examination: Religious 
societies: Church discipline: Forbidding reading of news- 
paper. 

Lamm Co. v. Peaks 289 



3di CASES REPORTED. [162 

' ■ ■ " ^" I - ■■ ■ I ■ I ■ I I « I . ■■ I I ■ .^^l. — MB 11 11 ■■■■■ ll» I——— - ^ -II. — ■ 

Laubenstein, St, Paul Fire & Marine Insurance Co. v 165 

Look V. Johnson 584 

Street and interurban railways: Negligence of motorman: Un- 
necessary noises: Frightening horse which was being led 
from track: Contributory negligence: Questions for jury. 

Lundberg v. Interstate Business Men's Accident Asso 474 

Insurance commissioner: Powers: Approval of policy forms: 
Collateral attack: Stipulation that company was duly li- 
censed: Presumption: Accident policy: Statutory require- 
ments: Typography: Expert testimony: Liability for gun- 
shot wounds: Eye-witness clause: Validity: Public policy: 
Who is "eye-witness." 

Lyons, Fergen v 131 

Madison, City of, Read v 94 

Markham, State ex reL Schumacher v 55 

Marsch, Foley v 25 

Martin v, Chicago, Milwaukee & St, Paul B,Co 595 

Appeal: Affirmance by divided court: Railroads: Death of 
employee. 

Marty, Broist v 296 

Massachusetts Bonding & Insurance Co,, Whinfield v 1 

Meidenhauer v. Toum of Peumukee 326 

Highways: Injury from defect or insufficiency: Liability of 
town: Engine standing in highway: Unguarded quarry 
hole: Notice of defects: Contributory negligence: Shying 
of horse: Momentary loss of control: Proximate cause: Spe- 
cial verdict: Form of questions. 

Menominee Bay Shore Lumber Co. v. Industrial Comm. . . 344 

Workmen's compensation: Proceedings before industrial com- 
mission: Minors: Guardians not necessary: Compromise of 
claim: Award pursuant thereto: Review: Vacation: New 
award. 

Messmer, Kuryer Publishing Co. v 565 

Mielenz, Fischbeck v 12 

Miller, Jensen v 546 

Milwaukee, City of, v. Railroad Commission 127 

Railroad commission: Abolishing grade crossings: Apportion- 
ment of cost: Constitutional law: Police power: Delegation 
of legislative power: Police regulations in railroad charters 
may be changed: Statutes: Construction: Effect on city 
charters, etc. 



Wis.] cases REPORTED. xiii 

Minneapolis, St Paul & 8. S. M. R. Co., Cohen v 73 

Minneapolis, Si. Paul <fe S. 8. M. B. Co,, RandaU v 507 

Modern Woodmen of America, Page v 259 

Mohawk Co. v. Bankers Surety Co 272 

Landlord and tenant: Breach of covenants: Remedies of les- 
sor: Election: Foreclosure: Liens: Quieting title: Cove- 
nant to erect building: Conditions of surety bond: Measure 
of damages for breach. 

Molzoff V. Chicago, Milwaukee & St. Paul B. Co 451 

Railroads: Injury to employee on track: Negligence: Ques- 
tions for jury: Liability under federal statute. 

Morgan v* Budlong 578 

Negligence: Defective walk on land adjacent to highway: Use 
by public with consent of owners: Injury: Liability: Dedi- 
cation: Pleading. 

Murphy v. Interlake Pulp & Paper Co 139 

Master and servant: Injury: Unsafe working place: Icy plat- 
form of crane car: Contributory negligence: Evidence: Suf- 
ficiency: Special verdict: Answers by the court: Immaterial 
questions: Harmless error: Sufficiency of finding: Proxi- 
mate cause. 

Nehrbass, State ex rel., v. Harper 589 

Nelson v. Ooddard cfe Co 66 

Landlord and tenant: Lease with option to buy is not a sale: 
Parol evidence affecting writings: Agreement to give up 
leased premises if sold: False statement of sale: Voluntary 
surrender: Measure of damages for breach: Prospective 
profits: Excessive damages. 

N orris v. N orris 356 

Divorce: Judgment: Alimony or final division? Revision: Ex- 
amination of adverse party. 

Northern Pacific R, Co,, Jay v 458 

Nuthals V. City of Oreen Bay 434 

Highways: Establishment by user: Wharf connecting street 
and river. 

Ocean Accident & G, Corp. i\ Combined Locks P. Co 255 

Employer's liability insurance: Increase in rate: New con- 
tract: Policy issued by nonresident agent in violation of 
law: Validating statute: Construction: Obligation to pay 
premiums: Cancellation when assured retires from busi- 
ness: What premiums to be retained. 



xiv CASES REPORTED. [162 



t 



Ogden v. State 500 

Juvenile courts are not criminal courts: Nature of proceed- 
ings: Review: Writ of error or appeal? 

Owen, State ex reL, v. Donald 609 



Page v. Modern Woodmen of America 259 

Death: Presumption from absence: Life insurance: Benefit 
societies: Waiver of proofs of death. 

Pawlak V. Hayes 503 

Workmen's compensation: Assignment to employer of cause 
of action against third person: Election between remedies: 
When right to elect arises: Malpractice of physician treat- 
ing injury: Liability of employer. 

Peaks, I. L. Lamm Co. v 289 

Peltett V. Industrial Commission 596 

Workmen's compensation: Notice of injury: Failure to give: 
When employer not misled: Burden of proof: Waiver: No- 
tice of hearing: Contents: Reopening matter after award: 
Procedure: Discretion: Setting aside award: "Fraud" does 
not include perjury: Statutes: Construction. 

Peterson v. Independent Order of Foresters 562 

Insurance: Mutual benefit societies: False statements in ap- 
plication: Avoiding policy: Remedies: When action may be 
brought. 

Pewaukee, Town of, Meidenhauer v 326 

Pishon, Bayfield County v 466 

Porte V. Chicago & Northwestern R. Co 446 

Assignment of future earnings: Validity: Termination of 
employment: New contract: Nonjoinder of wife in assign- 
ment: Foreign judgment, when binding: Public policy: 
Estoppel. 

Putnam v. Browne 524 

Libel: Privilege: Criticism of candidate for office: False state- 
ments: Insults: Newspaper article: Meaning: When libel- 
ous: Justification: Proof of substance of charge: Excessive 
publication. 

Railroad Commission, Chicago & Northwestern R, Co. v. . 91 
Railroad Commission, City of Milwaukee v 127 



Wis.] cases EEPOETED. xv 

Railroad Commission, Wiscoiisin Telephone Co. v 383 

Randall t\ Minneapolis, St. Paul & Sault Ste. Marie B. Co. W7 

Railroads: Regulation as to headlights: Constitutional law: 
Police power: Classification: Absolute liability for damages 
resulting from violation: Criminal conviction not a condi- 
tion precedent: When person is a trespasser on track: Fed- 
eral statute: Effect on prior Judgment: Excessive damages. 

Read v. City of Madison 94 

Municipal corporations: Claims: Verification i Waiver: Ap- 
peal from disallowance: Jurisdiction of circuit court: 
Waiver of defects: Statute simplifying procedure: Con- 
struction: Retroactive effect. 

Reedsburg, City of, Chreen v 101 

Reinhardt, Harder v 558 

Rhein v. Bums 309 

Contracts: Construction: Ambiguity: Sale or contract for 
work: Acceptance: Questions for jury: Special verdict: • 
Omissions: Finding by court, when presumed: Instructions 
to jury: Damages: Remission of part: Appeal: Disposition 
of case. 

Rheinschmidt v. City of Tomah 242 

Municipal corporations: Injury from defect in footpath: Duty 
to keep in repair: Questions for jury: Sufficiency of path- 
way: Contributory negligence: Momentary forgetfulness of 
known defect. 

Richter, State ex rel., v. Chadbourne 410 

Rock V. Ekern 291 

Contracts: Validity: Public policy: Private employment of 
counsel to assist district attorney in criminal prosecution. 

Rock County Sugar Co., Chicago, M. & St. P. B. Co. v 374 

Rock County Sugar Co., Chicago & Northwestern B, Co. v. 382 

Rogers, Citizens Savings & Trust Co, v 216 

Rohleder v. Wright 580 

Evidence: ESxamination of adverse party before trial: Statute 
construed: "Party:" "Agent:" Guardian ad litem of infant. 

Roth Brothers Co., Stack v 281 

St. Paul Fire & Marine Insurance Co. v. Laubenstein 165 

Principal and agent: Negligence or bad faith of agent: Ques- 
tions for jury. 



xvi CASES KEPORTED. [162 

Schabow v. Wisconsin Traction, Light, Heat & Power Co, 175 

Negligence: Proximate cause: Anticipation of injury: In- 
structions to jury: Harmless error: Contributory negli- 
gence: Questions for jury: Excessive damages: New trial: 
Newly discovered evidence: Discretion. 

Schmidt v. Grenzow 301 

Mortgages: Foreclosure: Deficiency judgment against heirs 
of mortgagor: Contingent claim against decedent. 

Schumacher, State ex rel., v. Markham 55 

Smith V. Illinois Central B, Co 120 

Railroads: Highway crossing: Insufficiency: Injury to driver 
of vehicle: Contributory negligence: Questions for Jury. 

Southern Wisconsin B, Co., Coomis v Ill 

Sovereign Camp, Woodmen of the World, Haycock v 116 

Sprout, Waldron & Co, v. Amery Mercantile Co 279 

Unlicensed foreign corporations: Validity of contracts: Inter- 
state commerce: Sale of property located in the state. 

Stack V. Both Brothers Co 281 

Contracts: Validity: Statute of frauds: Contract for sale of 
goods: Agreement to buy Jointly and divide: Considera- 
tion: Mutual promises: Judicial sale: Chilling bidding: 
Breach of contract: Damages: Pleading. 

State, Collifis v 349 

State, Dagan v 353 

State, Ogden v 500 

State ex rel. Conway v. District Board 482 

Mandamus: When writ issues: Mistake in remedy: Amend- 
ment of pleading: Constitutional law: Schools: Holding 
graduating exercises in church: Sectarian instruction: 
Nonsectarian prayers: Compelling support of or attendance 
at "place of worship:" "Rights of conscience:" Giving pref- 
erence to modes of worship, etc. 

State ex rel. Nehrbass v. Harper 589 

Municipal corporations: Ordinances: Validity: Redelegation 
of legislative power by council: Erection of public garages: 
Consent of adjacent property owners. 

State ex rel. Owen v. Donald 609 

Accounting as to trust funds and lands: Referees' report mod- 
ified and confirmed. 



Wis.] CASES REPOETED. xvii 

State ex rel. Bichter v. Chadbourne 410 

Supreme court: Original jurisdiction: Constitutional law: 
Statutes: General or local? Creation of superior court in 
county: Abolition of county court: Title of local law: Fail- 
ure to express subject: When statute wholly void. 

State ex rel, Schumacher v. MarkJiam 55 

Appealable orders: Pleading: Corrupt Practices Act: Pen- 
alties: Ouster from office: Party as witness: Privilege: 
Self-incrimination: Adverse examination. 

State ex rel. Volkman v, Waltermath 602 

Bastardy: Not a criminal prosecution: Sealed verdict may be 
changed. 

State ex rel, Wisconsin T., L., H, & P. Co, v. Circuit Court . 234 

Certiorari: Jurisdiction: Public utilities: Indeterminate per- 
mits: Condemnation of "existing plant" operated in con- 
junction with utilities in other cities. 

Tarczek v. Chicago cfe Northwestern R, Co 438 

Appeal: Verdict, when disturbed: Carriers: Railroads: When 
person becomes passenger: Injury at station: Defect in 
platform: Questions for jury: Intoxication of plaintiff: 
Contributory negligence: Brief stricken from files. 

Till, Hamley v 533 

Timme v. Kopmeier * 571 

Corporations: Directors: Contract to repurchase stock of em- 
ployee: Validity: Public policy: Appeal: Findings of fact. 



Tomah, City of, Rheinschmidt v 24. 



9 



Voigt, Witt V 568 

Volkman, State ex rel,, v, Waltermath 602 

Waltermath, State ex rel, Volkman v 602 

Ward V. Babcock 539 

Drainage districts: Report of commissioners: Order requir- 
ing modification: Appeal: Establishment of district, how 
far conclusive: Assessment of benefits: Remonstrances: 
Hearing: Evidence: Instructions to jury. 

Warden v. Hart 495 

Municipal corporations: Permitting platform scales in street: 
Injunction: Rights of taxpayers: Aldermen. 



xviii CASES KEPOKTED. [162 



Waushara Qranite Co,, Connolly v 522 

Weaver, In re 499 

Prohibition: When writ issues: Criminal law: Lack of pre- 
liminary examination: Jurisdiction of circuit court: Rem- 
edy by plea in abatement. 

Wegener v. Chicago & Northwestern B,Co 322 

Carriers: Loss of goods in transit: Erldence: Tariffs and bill 
of lading: Pleading: Contract as to measure of damages. 

Werthmann, Andreyszak v 554 

Weston V. Dahl 32 

Corporations: Stock subscriptions: Cancellation: Evidence: 
Increase of capital stock: Insufficient subscriptions: Per- 
sonal liability for debts: Amendment of articles: Record: 
Certificate of register of deeds: Authentication: Oral prom- 
ise not a subscription: Assignability of claims: Lost note: 
Bond of indemnity. 

West Salem, Village of, v. Industrial Commission 57 

Workmen's compensation: "Employee" of Tillage: Person 
killed while assisting Tillage marshal: Basis of award. 

Whinfield v. Massachusetts Bonding <& Insurance Co 1 

Surety or fidelity bonds are contracts of insurance: Construc- 
tion: Warranties: Untrue statements in application: Avoid- 
ance of bonds. » 

Wisco7isin National Life Insurance Co,, Jacobs v 318 

Wisconsin Telephone Co, v. Railroad Commission 38S 

Telephone companies: Physical connection, when required: 
Railroad commission : Powers: Review of orders : Burden of 
proof: "Public convenience and necessity:" "Irreparable 
injury:" Constitutional law: Taking of property: Compen- 
sation: Prescribing conditions of connection: Preventing 
loss: Extra toll charges: Police power. 

Wisconrsin T,, L., H. & P, Co., Schabow v 175 

WiscoTisin T., L,, H, & P. Co,, State ex rel,, v. Circuit Court 234 

Wisconsin Zinc Co. v. Fidelity & Deposit Co 39' 

Insurance: Indemnity: Employer's liability: Construction of 
contract: Settlement of claims: EiXclusive right of insurer: 
Agency: Failure to make settlement: Recovery of larger 
amount: Liability to assured: Negligence: Bad faith: Plead- 
ing: Complaint: Sufficiency. 



Wis.] cases REPORTED. xix 



Witi V. Vaigt 568 

Animals: Evldeiice as to habits: Sales: Warranty: Breach: 
Offer of eyidence: Sofflclency. 

Woodmen of the World, Sovereign Camp, Haycock v US 

Worzalla, Zielica v 60S 

Wright, Rohleder v 580 

Zahl, JUek v 157 

Zaremba v. Iniernationol Harvester Corporation 231 

Life insurance: Employees' benefit association: Contract bar- 
ring: remedy In courts: Validity: Public policy. 

Zielica v. Worzalla 603 

Vendor and purchaser of land: Construction of contract: Am- 
biguity: Parol evidence: "Clear:" Breach of contract: 
Measure of damages: Instructions to jury: Harmless er- 
rors: Validity of contract: Sunday: Pleading: Presumption 
as to delivery: Costs: Taxation: Fees of constables: Serv- 
ice of summons and subpoenas. 



CITATIONS BY THE COURT. 



CASES CITED. 



Abbot V. Kalbus 74 W. 504 - 586 
Adams C, S. & F. House, In 

re, 199 Fed. 337 - - - 224 
^tna A. & L. Co. v. Lyman 

155 W. 135 - - . - 503 
^tna Ins. Co. v. Simmons 49 

Neb. 811 .... 9 
^tna L. Ins. Co. v. McCor- 

mlck 20 W. 265 - - 15-17 
Alexander y. M., St. P. & S. S. 

M. R. Co. 156 W. 477 - - 270 
Allen V. iStna L. Ins. Co. 145 

Fed. 881 - ... 49 

V. Allen 114 W. 615 - 473 

V. Murray 87 W. 41 - 71 

V. T. V. R. Co. 229 Pa. 

St. 97 433 

American S. Co. v. Pauly 170 

U. S. 133 - - - - 6, 7 
Amet y. Milwaukee M. Mut. 

Ins. Co. 22 W. 516 - - 171 
Arnold v. Ingram 151 W. 438 - 533 
Aschermann y. Philip Best B. 

Co. 45 W. 262 - - - 553 
Ashland y. Maciejewski 140 

W. 642 471 

Ashland L. Co. y. Detroit S. 

Co. 114 W. 66 - - - 381 
Atchison, T. & S. F. R. Co. y. 

Hurley 153 Fed. 503 - - 223 
Atkinson y. C. & N. W. R. Co. 

119 W. 176 - - - - 513 
Atlantic C. L. R. Co. v. N. C. 

Corp. Comm. 206 U. S. 1 - 409 

y. State 135 Ga. 545 - 511 

y. 234 U. S. 280 - 511 

Attleboro M. Co. y. Frankfort 

M. A. & P. G. Ins. Co. 171 

Fed. 495 ... - 

Bacon y. Bacon 43 W. 197 
Badger State L. Co. y. G. W. 

Jones L. Co. 140 W. 73 
Baier y. Schermerhom 96 W. 

372 - - - - - 
Bain y. N. P. R. Co. 120 W. 412 
Baker y. Madison 62 W. 137 - 

V. State 65 W. 50 - 

Baldwin y. Begley 185 111. 180 



61 

360 

340 

498 
588 
360 
603 
308 



300 
603 



- 233 



114 



72 



- 271 



Ball V. Boston 153 W. 27 252, 254 
Barringer y. Eyenson 127 W. 

36 

Barry y. Niesusen 114 W. 256 - 
Bartlett y. L. Bartlett A Son 

Co. 116 W. 450 - 
Bass y. C. ft N. W. R. Co. 36 

W. 450 

Baxter y. C. & N. W. R. Co. 

104 W. 307 - . - . 
Behllng y. Wis. B. & I. Co. 158 

W. 584 - 
Bell y. American P. League 

163 Mass. 558 • - - 224 

y. Platteyille 71 W. 139 498 

Bergin, In re, 31 W. 383 - 414, 415 
Berwind-White C. M. Co. y. C. 

& E. R. Co. 235 U. S. 371 - 379 
Biemel y. State 71 W. 444 - 293 
Bleri y. Fonger 139 W. 150 426, 553 
Birdsall y. Kewaunee Co. 124 

W. 576 

Bishop y. Belle City St. R. Co. 

92 W. 139 - 
Bixler y. Pa. R. Co. 201 Fed. 

553 

Black y. Hurlbut 73 W. 126 - 
Blair y. Lynch 105 N. Y. 636 - 
y. 20 N. Y. Wkly. 

Dig. 575 - - - - 286 
Blake y. Blake 68 W. 303 - 360 
Blakeslee y. Make-Man T. Co. 

175 111. App. 515 - - 449,450 
Blizzard y. Brown 152 W. 160 548 
Blodgett y. Hitt 29 W. 169 - 18 
Blunt y. Walker 11 W. 334 - 322 
Boardman y. Scott [1902] 1 

K. B. 43 - - - - 183 
Bogigian y. Hassanoff 186 

Mass. 380 - - - - 285 
Bonnell y. Gray 36 W. 574 - 16 
Bonta y. Gridley 77 App. Diy. 

33 577 

Boring y. Ott 138 W. 260 - 600 
Boyd y. U. S. 116 U. S. 616 - 56 
Boyle, In re, 9 W. 264 - 414, 415 
Bradley y. Chicago-Birden C. 

Co. 231 111. 622 - - - 433 
Bray y. Cobb 100 Fed. 270 - 223 



99 

586 

425 

15 

286 



Wis.] 



CITATIONS. 



XXI 



Brenger y. Brenger 142 W. 26 361 
Briggs Y. Garrett 111 Pa. St. 

404 628 

Brinilson v. C. & N. W. K Co. 

144 W. 614 - - - - 680 
Brinkman v. Jones 44 W. 498 - 228 
Brinkmeier v. Mo. Pac. R. Co. 

81 Kan. 101 - - - - 433 
Brown v. Slauson 23 W. 244 - 286 
Brjan y. Branford 60 Conn. 

246 397 

Buckstaff Y. HickB 94 W. 34 632, 633 

Y. Vlall 84 W. 129 - - 528 

Bttllard y. Smith 139 Mass. 

492 285 

Bunker y. Hudson 122 W. 43 96, 97 
Burgess Y. Dane Co. 148 W. 

427 134 

Bumham y. Milwaukee 166 

W.90 496 

Butler Bros. y. American F. 

Co. 120 Minn. 157 - - 61 
Buttfield Y. Stranahan, 192 U. 

S. 470 92 

Buttrick v. Roy 72 W. 164 - 603 

Gaboon y. C. & N. W. R. Co. 85 

W. 570 686 

Callahan y. C. & N. W. R. Co. 

161 W. 288 - - • 425, 426 
Cameron y. Nash 41 App. DIy. 

532 223 

Campbell y. Campbell 37 W. 

206 - - - - - 360 
Carpenter y. Rolling 107 W. 

559 332 

Carswell y. Farmers' L. & T. 

Co. 74 Fed. 88 - - - 224 
Carter y. Mtaa. L. Ins. Co. 76 

Kan. 275 - - - - 49 
Casgrain y. Milwaukee Co. 81 

W.113 160 

Challoner y. Howard 41 W. 365 16 
Charbonean y. Henni 24 W. 

250 647 

Charmley y. Charmley 125 W. 

297 160 

Chicago & A. R, Co. y. Tran- 

barger 238 U. S. 67 - - 172 
Chicago, B. ft Q. R. Co. v. Rail- 
road Comm. 152 W. 664 - 93 

V. 237 U. 8. 220 - 93 

Chicago, M. & St. P. R. Co. y. 

Iowa 233 U. S. 234 - • 409 

V. Milwaukee 97 W. 418 130 

Y. Rock Co. S. Co. 162 

W. 374 - - - - 382, 419 
V. Wright L. Co. 123 W. 

46 134 



Chicago & N. W. R. Co. y. 

Railroad Comm. 162 W. 91 - 
Chicago, R. I. ft P. R. Co. y. 

Bryant (Ark.) 162 S. W. 61 
Y. Hardwick F. E. Co. 

226 U. S. 426 - . - 
Chicago T. ft T. Co. y. Bash- 
ford 120 W. 281 - 
Chippewa Falls y. Hopkins 

109 W. 611 - 
Cincinnati, N. 0. ft T. P. R. 

Co. V. Goods 163 Ky. 60 
Ciscel V. Wheatley 27 W. 618 
Clark V. Farrington 11 W. 306 

V. Post 113 N. Y. 17 

Clegg V. St. L. ft S. F. R. Co 

203 Fed. 971 
Clemens v. C, St. P., M. ft O 

R. Co. 137 W. 387 - 
CleYeland y. Burnham 60 W 

16 .... 

Clover y. Hughes 3 Butter 

worth's Workm. C. C. 275 
Cockburn v. Ashland L. Co 

64 W. 619 - - - 
Coel V. Green Bay T. Co. 147 

W. 229 - 
Cohen v. M., St. P. ft S. S. M 

R. Co. 162 W. 73 - 
Cole, Will of, 52 W. 591 - 
Cole V. Cole 23 Iowa 433 - 
V. Evans 4 Butter 



406 

511 

379 

381 

436 

425 

19 

322 

562 

77 
101 
581 
182 

71 

177 

325 

17 

553 

343 



worth's Workm. C. C. 138 
Coleman y. MacLennan 78 

Kan. 711 - - - 528, 533 
Collins V. Janesville 111 W. 

348 248 

Colt V. Clapp 127 Mass. 476 - 286 
Comm'rs of Parks v. Moesta 

91 Mich. 149 ... 398 
Comm. Y. Tobin 125 Mass. 

203 603 

Conant v. Estate of Kimball 

95 W. 550 - - - - 562 
Connecticut River Mut. F. Ins. 

Co. V. Whipple 61 N. H. 61 - 258 
Connell v. Iowa State T. M. 

Asso. 139 Iowa 444 - - 481 
Conner v. Standard P. Co. 183 

Mass. 474 - - - - 531 
Continental Ins. Co. v. Clark 

126 Iowa 274 - - - 168 
Conway v. Mitchell 97 W. 

290 29 

Coolidge V. Hallauer 126 W. 

244 178 

Cooper V. Reynolds 77 U. S. 

308 18 

Corbett v. Anderson 85 W. 218 71 



XXll 



CITATIONS. 



[162 



Cornell v. Travelers Ins. Co. 

175 N. Y. 239 - - - 49 
Corsellis, In re, 48 L. T. 425 - 583 
Cowan V. Lindsay 30 W. 586 - 263 
Creteau v. C. & N. W. R. Co. 

113 Minn. 418 - - - 433 
Crltes V. New Richmond 98 

W. 55 248 

Crocker v. State 60 W. 553 - 503 
Cronemillar v. Duluth-Supe- 

rior M. Co. 134 W. 248 - - 340 
Crowe V. Colbeth 63 W. 643 - 562 
V. Mich. Cent. R. Co. 142 

Mich. 692 - - - - 443 
Crowley v. C, St. P., M. ft O. 

R. Co. 122 W. 287 
Cummings v. Cummings 75 

Cal. 434 - - - - 
Curry v. C. & N. W. R. Co. 43 

W. 665 

Curtis V. Modern Woodmen 

159 W. 303 - 
V. Mundy [1892] 2 Q. B. 



178 



V. Mussey 6 Gray 261 



- 586 

228 

513 

308 

583 
530 



Curtiss V. Bovina 138 W. 660 - 437 

Damp V. Dane 29 W. 419 • 18 
D'Arcy V. Ketchum 11 How. 

(52 U. S.) 165 - - - 451 
Davis V. N. Y., O. & W. R. Co. 

70 Minn. 37 • - - - 325 
Dayton H. Co. v. Felsenthal 

116 Fed. 961 - - - 223 
Delaney v. Delaney 175 111. 

187 307 

Delashmutt v. Thomas 45 Md. 

140 136 

Delk V. St. L. & S. F. R. Co. 

220U. S. 580 - - - 270 
Denton v. M., K. & T. R. Co. 

90 Kan. 51 - - - - 466 
DeWolf V. Royal T. Co. 173 111. 

435 223 

Dodge V. Clyde 7 Rob. (N. Y.) 

410 287 

V. Kaufman 152 W. 171 177 

Dolphin V. Peacock M. Co. 165 

W. 439 523 

Donohue v. Warren 95 W. 367 334 
Domer v. School Dist. 137 W. 

147 - - - - 492,493 
Dowling V. Lancashire Ins. 

Co. 92 W. 63- - - - 593 
Duncan v. Metcalf 154 W. 39 - 254 
Duming V. Burkhardt 34 W. 

585 - • - - 16,17 



Dyke v. Stephens L. R. 30 Ch. 
D. 189 - - - - - 583 

Eagan v. Luby 133 Mass. 543 - 449 
Earley v. Winn 129 W. 291 - 155 
Eastman v. Parkinson 133 W. 

375 322 

Eastwood V. La Crosse City R. 

Co. 94 W. 163 - - -586 
Eau Claire W. Co. v. Eau 

Claire 127 W. 154 - - 403 
Edgerton Bible Case 76 W. 

177 494 

Edwards v. Janesville 14 W. 

26 15 

Ehleiter v. Milwaukee 121 W. 

85 333,334 

Ekem v. McGovem 154 W. 

157 479 

Elmergreen v. Weimer 138 W. 

112 306 

Elwell V. Adder M. Co. 136 W. 

82 381 

Emerick v. Krause 52 W. 358 - 214 
Emerson v. Babcock 66 Iowa 

257 497 

V. Hubs 127 W. 215 - 16 

E. M. Fish Co. v. Young 127 

W. 149 300 

Equitable L. ft S. Co. v. R. L. 

Moss ft Co. 125 Fed. 609 - 226 
Estey O. Co. v. Lehman 132 

W. 144 317 

Ewen V. C. ft N. W. R. Co. 38 

W. 613 109 

Farmers' L. ft T. Co. v. N. P. 

R. Co. 58 Fed. 257 - - 223 
Farrell v. U. S. 110 Fed. 942 - 355 
Faubel v. Eckhart 151 W. 155 307 
Fay V. M., St. P. ft S. S. M. R. 

Co. 131 W. 639 - - . 587 
Feldschneider v. C, M. ft St. 

P. R. Co. 122 W. 423 - - 177 
Fenton v. Thorley 89 L. T. 

Rep. 314 - - - 182,183 
Finney v. Ackerman 21 W. 

268 100 

First Nat. Bank v. Fidelity ft 

G. Co. 110 Tenn. 10 - - 10 
T. U. S. F. ft G. Co. 150 

W. 601 7 

Fish Bros. W. Co. v. La Belle 

W. Works 82 W. 546 - - 202 
Fish Co. V. Young 127 W. 149 - 300 
Fisher's Case 220 Mass. 581 - 183 
Flaherty v. Harrison 98 W. 

559 686 



Wis.] 



CITATIONS. 



XXlll 



Fl&ndera t. Sherman 18 W. 

575 15 

FUck T. Wetherbee 20 W. 892 607 
Flour City Nat Bank y. 

Wechselberg 45 Fed. 547 - 38 
Forest Co. v. Shaw 150 W. 294 593 
Foes y. Heineman 144 W. 146 71 
Foth T. Macomber & W. R. Co. 

161 W. 549 - - - - 347 
Fox T. Masons' F. A. Asso. 96 

W. 390 - - - - 232, 233 
T. Postal Teh-Cahle Co. 

138 W. 648 - - - - 451 

T. Wilkinson 133 W. 337 317 

Frawley v. Cosgroye 83 W. 

441 582 

Prazinp In re, 174 Fed. 712 - 223 

183 Fed. 28 - - 226 

Freeman y. Freeman 31 W. 

235 90 

Frete y. Little Black F. M. 

Ina. Co. 120 W. 590 - - 451 
French y. Fidelity ft C. Co. 

135 W. 259 .... 7 
Famiss y. Gartside 3 Butter- 
worth's Workm. C. C. 411 - S43 



Gaineeyille M. R. Co. y. Van- 

diyer 141 Ga. 350 - 
Garage E. M. Co. y. Danielson 

156 W. 90 - - - - 
Glbbe ft S. M. Co. y. Brucker 

UlU. S. 597 
Gilbert y. Dutruit 91 W. 661 - 
Gillett y. Eaton 6 W. 30 - 
GoelU y. Ashland 73 W. 642 - 
Gould y. Killen 162 W. 197 - 
- — y. Merrill R. ft L. Co. 

139 W. 433 - 
Govier y. Brechler 159 W. 157 
Gowan y. Hanson 55 W. 341 - 
Graber y. D., S. S. ft A. R. Co. 

159 W. 414 - 
Grand Lodge A. O. U. W. y. 

Connolly 58 N. J. Eq. 180 - 
Grand Trunk R. Co. y. Mich. 

R. R. Comm. 231 U. S. 457 - 
Grand Trunk W. R. Co. y. 

Lindsay 233 U. S. 42 • 
Gray y. Parke 155 Mass. 433 - 
Green y. Drummond 31 Md. 71 
Green Bay ft M. C. Co. y. Hew- 
itt 62 W. 316 
Griem y. Fidelity ft C. Co. 99 

W. 530 481 

Grignard L. Co., In re, 155 

Fed. 699 - - - - 224 



425 
160 

607 
471 
228 
332 
473 

586 
321 
290 



426 



307 

408 

270 
583 
285 



174 



Guernsey y. Cook 120 Mass. 

501 577 

Guetzkow Bros. Co. y. A. H. 

Andrews ft Co. 92 W. 214 - 71 
Gunderson v. Rogers 160 W. 

468 - . - - 253,254 
Guth C. Co. y. Guth 215 Fed. 

750 202 

Hafern y. Dayis 10 W. 501 - 149 
Hall y. Hinckley 32 W. 362 94, 170 
y. L. ft N. R. Co. 157 

Fed. 464 - - - - 433 

y. Storrs 7 W. 253 - - 168 

Halyorsen y. Halyorsen 120 

W. 52 562 

Hamilton y. Rogers 67 Mich. 

135 451 

Hammacber y. New Berlin 

124 W. 249 - - - . 332 
Harrigan y. Gilchrist 121 W. 

127 18 

Harrington y. Pier 105 W. 485 359 
Hart y. Citizens' Ins. Co. 86 

W. 77 - - - - : 481 
y. Niagara F. Ins. Co. 9 

Wash. 620 .... 9 
Hartford L. S. Ins. Co. y. 

Matthews 102 Mass. 221 - 258 
Hartshorn y. M. ft St. P. R. Co. 

23 W. 692 - - - . 15 
Harty y. Cent. R. Co. 42 N. 

Y. 468 465 

Haskins y. Lumsden 10 W. 

359 155 

Hatch y. Lane 105 Mass. 394 533 
Hayerlund y. C, St. P., M. ft 

O. R. Co. 143 W. 415 - - 434 
Hawes y. Fox Lake 33 W. 438 332 
Hawks y. Pritzlaff 51 W. 160 360 
Hayes y. Mich. Cent. R. Co. 

Ill U. S. 228 - - - 513 
Hebbe y. Maple Creek 121 W. 

668 332 

Heer y. Warren-Scharf'A. P. 

Co. 118 W. 57 - . - 588 
Hemenway y. Beecher 139 

W. 399 - - - . 367 

Henderson y. Moeaqua C. M. 

ft M. Co. 145 111. App. 637 - 433 
Hennesy y. Farrell 20 W. 42 - 228 
Henton y. Soyerelgn Camp, 

W. O. W. 87 Neb. 552 - - 118 
Hepp y. Huefner 61 W. 148 - 149 
Herbert y. Bronson 125 

Mass. 474 - - - . 449 
Herring-Hall-Manrin 8. Co. 

y. Hall's S. Co. 208 U. S. 554 202 



XXIV 



CITATIONS. 



[162 



Hewitt V. Southern Wis. R. 

Co. 159 W. 309 - - - 271 
Hicks P. Co. V. Wis. Cent. R. 

Co. 138 W. 584 - - - 134 
Higgins V. Riddell 12 W. 586 300 
Hill V. Fond du Lac 56 W. 

242 97 

Hodge V. Smith 130 W. 326 - 561 
Hoenig v. Industrial Comm. 

159 W. 646 • - - 343, 601 
Hoffman v. State 88 W. 166 - 17 
Hogan V. State 36 W. 226 - 15 
Holloway v. Schmidt 67 N. Y. 

Supp. 169 - - - - 135 
Hooper T. Co. v. Nebraska T. 

Co. 96 Neb. 245 • - - 409 
Hopkins v. C, M. & St. P. R. 

Co. 128 W. 403 - - - 553 

V. Hopkins 40 W. 462 - 360 

V. Racine M. ft W. I. 

Co. 137 W. 583 - - - 288 
Howard v. Tomiclch 81 Miss. 

703 136 

Hudson V. C, St. P„ M. ft O. 

R. Co. 226 Fed. 38 - - 77 
Hughes V. Cuming 165 N. Y. 

91 18 

V. N. Y., O. ft W. R. Co. 

158 App. Dlv. 443 - - 433 
Huguley M. Co. v. Galeton C. 

Mills 94 Fed. 269^ - - 229 
Hunt V. Elliott 80 Ind. 245 286, 288 
Hunter v. Mayor, etc. 5 R. I. 

325 398 

Hurley v. Walter 129 W. 508 367 
Hutchinson v. Oshkosh 151 

W. 573 . - . . 100 

Hutto V. Southern R. Co. 

(S. C.) 84 S. E. 719 - - 466 

HI. Cent. R. Co. v. Laloge 113 

Ky. 896 - . - . 441 
111. S. Co. V. Dettlaff 116 W. 

319 - - - ■ 83,84 
Imperial F. Ins. Co. v. Coos 

Co. 151 U. S. 452 - - 47 

Income Tax Cases 148 W. 

456 - - - - 412,470 
Ingalls V. Morrissey 154 W. 

632 528 

Inman ft Co. v. Seaboard A. 

L. R. Co. 159 Fed. 960 - "325 
Interstate C. Co. v. WaUins 

C. C. Co. (Ky.) 176 S, W. 217 51 

Jackson v. State 92 W. 422 - 503 
Jacobs V. Spalding 71 W. 177 134 



Jacobson y. Bentzler 127 W. 

566 607 

James v. Portage 48 W. 677 247, 332 
Jennings v. Johonnott 149 

W. 660 362 

Jensen v. State 60 W. 577 - 93 
J. Frank Stanton Co., In re, 

162 Fed. 169 - - - 224 

Jochem v. Dutcher 104 W. 611 100 
Johnson v. Cook 24 Wash. 

474 277 

V. Milwaukee 46 W. 569 437 

Johnston v. Humphrey 91 W. 

76 226 

Jones Y. Modern B. of A. 153 

W. 223 - - - - 118, 119 

V. Piening 85 W. 264 225, 226 

V. Tobin 135 W. 286 - 352 

V. Williams 139 Mo. 1 - 575 

Jorgenson v. Superior 111 W. 

561 354 

Joseph Y. Baars 142 W. 390 - 629 

Kansas ft A. V. R. Co. v. 

Ayers 63 Ark. 331 - - - 76 
Kansas City S. R. Co. y. Les- 
lie 238 U. S. 599 - - - 271 
Karel y. Conlan 156 W. 221 - 66 
Kavanaugh y. Wausau 120 W. 

611 570 

Keeley v. G. N. R. Co. 139 W. 

448 101 

Kelley v. Fond du Lac 31 W. 

179 - - - - 331,334 
Kelley, M. ft Co. v. La Crosse 

C. Co. 120 W. 84 - - - 607 
Kellogg V. Malick 125 W. 239 72 
Kelly T. C. ft N. W. R. Co. 60 

W. 480 - - - . 681 
V. Southern Wis. R. Co. 

152 W. 328 - - - - 109 
Kelsey v. J. W. Ringrose N. 

Co. 152 W. 499 - - - 317 
Killen y. Barnes 106 W. 546 33, 38 
Kipp V. Laun 146 W. 591 - 562 
Kistler v. Kistler 141 W. 491 361 
Kleimenhagen t. Dixon 122 

W. 526 553 

Knapp V. Deer Creek 162 W. 

168 94 

Kneeland y. Milwaukee 15 W. 

454 360 

Knights of Columbus t. Bur- 
roughs' Benef. 107 Va. 671 • 119 
Knoebel t. North Am. Ace 

Ins. Co. 135 W. 424 - - 118 
Knox V. Clifford 41 W. 458 - 15 
Koch V. State 126 W. 470 - 603 



Wis.] 



CITATIONS. 



xxv 



Koehne ▼. N. T. A Q. C. R. Co. 

32 App. Div. 419 - - - 22 

T. 165 N. Y. 603 - 22 

Kollock T. Scribner 98 W. 104 133, 

136 
Kortendlck v. Waterford 142 \ 

W. 413 - - - - 330, 

Kowalskl T. American C. Co. | 

160 W. 341 - - - - 151 , 
Eresge y. Maryland C Co. 154 

W. 627 367 

Kujawa v. C, M. A St. P. R. 

Co. 135 W. 562 - - - 464 

Lakeside L. Co. y. Jacobs 134 

W. 188 497 

Lally V. Lally 152 W. 56 - 358-361 
Lans-Owen A Co. v. Garage E. 

M. Co. 151 W. 555 - - 100 
Laun V. Klpp 155 W. 347 - 600 
— — V. Pacific Mut. L. Ins. 

Co. 131 W. 555 - - 257. 258 
Lawton v. RiTers 2 McCord 

(S. C.) 445 - - - - 397 
Legler v. U. S. F. k F. Co. 88 

Ohio St. 336 ... 9 
Lehigh Valley R. Co. v. Wood- 
ring 116 Pa. St. 513 - - 449 
Lehman ▼. Amsterdam C. Co. 

146 W. 213 - - - - 179 
Leora ▼. M., St. P. ft S. S. M. 

R. Co. 156 W. 386 - - 430 
Lepard v. Mich. Cent. R. Co. 

166 Mich. 373 - - - 465 
Leuch V. Berger 161 W. 564 - 154, 

156. 528 
Lewin v. Stewart 17 How. Pr. 

5 286 

Lingelbach v. Theresa Vil- 
lage M. F. I. Co. 154 W. 595 - 440 
Link Belt M. Co. t. Hughes 

174 in. 155 - - - - 223 
Little Chute v. Van Camp 136 

W. 526 593 

Loeffler ▼. Modern Woodmen 

100 W. 79 - - - 233, 564 
Lombard v. McMillan 95 W. 

627 290 

Longfellow t. McGregor 61 

Minn. 494 - - - - 277 
Louisville ft N. R. Co. v. Hall 

98 C. C. A. 664 - - - 433 
Luebben v. Wis. T.. L., H. ft 

P. Co. 154 \". 378 - - 178 

Losk ▼. Stoughton State 

Bank 135 W. 311 - - - 93 



Hace T. Heath 30 Neb. 620 



284 



Mahler v. Brumder 92 W. 477 498 
Mallin t. Wenham 209 111. 252 449 
Manitowoc v. Manitowoc ft N. 

T. Co. 145 W. 13 - - - 150 
Mason v. Spiller 186 Mass. 346 285 
Mathie v. Mcintosh 40 W. 120 18 
Matthews v. Baraboo 39 W. 

674 553 

Maxwell v. Sawyer 90 W. 352 360 
May hew v. Wis. Z. Co. 158 W. 

112 - - - - 53.54 
Mayor v. Collins 24 Q. B. D. 

361 583 

McArthur v. Moffet 143 W. 

564 428 

McClure v. Sparta 84 W. 269 - 497 
McCumber v. Waukesha Co. 

91 W. 442 - - - - 60 
McCurdy v. Rogers 21 W. 197 547 
McGarvey y. Independent O. 

ft G. Co. 156 W. 580 - 605, 506 
McGowan v. Supreme Court 

I. O. F. 104 W. 173 - 307, 564 
McGrell v. Buffalo O. B. Co. 

153 N. Y. 265 - - - 22 
McHugh V. St. Louis T. Co. 

190 Mo. 85 - - - - 433 
M'Innes v. Dunsmuir 45 Scot. 

L. Rep. 804 - - - - 183 
McLaughlin v. Winner 63 W. 

120 226 

McNicol's Case 215 Mass. 497 343 
Meade v. Brothers 28 W. 689 631 
Meier v. Paulus 70 W. 165 581, 583 
Meinshausen t. A. Gettelman 

B. Co. 133 W. 95 - - 425, 434 
Meissner v. Southern Wis. 

R. Co. 160 W. 507 - - 461 

Melchoir v. McCarty 31 W. 

252 295 

Merchants' Exch. Bank v. 

Fuldner 92 W. 415 - - 225 
Meshke v. Van Doren 16 W. 

319 - - - - 414,415 
Meyer v. Milwaukee E. R. ft 
L. Co. 116 W. 336 - - 177 

V. Outagamie Co. 134 

W. 86 98 

Mezchen v. More 54 W. 214 - 608 
Mich. Cent. R. Co. v. Mich. R. 
R. Comm. 183 Mich. 6 - - 378 

▼. 236 U. S. 615 - 408 

Mich. L. & L. Co. v. Rust 168 

U. S. 589 - - - - 623 
Miller ▼. C, St. P., M. ft O. R. 
Co. 135 W. 247 - - . 519 

V. Crawford Co. 106 W. 

210 99 



XXVI 



CITATIONS. 



[162 



Miller v. Sovereign Camp W. 

O. W. 140 W. 505 . - 262, 263 
Mills V. Charleton 29 W. 400 - 420 
Milwaukee v. Industrial 

Comm. 160 W. 238 - • 184 
V. Milwaukee Co. 114 

W. 374 . - - - 174 
Milwaukee Co. v. Isenrlng 109 

W.9 - - - 413-415,420 
Minneapolis k St. L. R. Co. v. 

State ex reh R. R. 6 W. 

Comm. 193 U. S. 53 - - 409 
Minneapolis, St. P. 6 S. S. M. 

R. Co. V. Ind. Comm. 153 

W. 552 601 

V. R. R. Comm. 136 W. 

146 - - - 92,129,593 
Missouri, K. & T. R. Co. v. 

Frogley 75 Kan. 440 - - 76 

V. Kirkham 63 Kan. 255 77 

V. Saunders 101 Tex. 255 466 

V. Wulf 226 U. S. 570 - 425, 

431-433 
Modern Woodmen v. Tevls 

117 Fed. 369 ... 119 
Moliter v. Wabash R. Co. 180 

Mo. App. 84 - - - 433 

Monk V. Hurlburt 151 W. 41 - 558 
Morey v. Lake Superior T. 6 

T. Co. 125 W. 148 - - - 177 
Morgan v. Rhinelander 105 

W. 138 97 

Morrison v. Eau Claire 115 

W. 538 - - • - 97, 100 
Mueller v. Cook 126 W. 504 - 562 
Mulhall V. Quinn 1 Gray 105 - 449 
Munro v. Maryland C. Co. 48 

Misc. 183 - - - - 50 
Murphy v. Independent Or- 
der, etc. 77 Miss. 830 - - 119 
V. Interlake P. & P. Co. 

156 W. 9 - - - 141, 144 
Mygatt V. Tarbell 78 W. 351 - 286 

Nash V. Hoxie 59 W. 384 - 71 
National Ace. Soc. v. Ralstin 

101 111. App. 192 - - - 481 
Nehrling v. Herold Co. 112 W. 

558 531 

Nelson v. Kalkhoff 60 Minn. 

305 223 

New Orleans & C. R. Co. v. 

Maryland C. Co. 114 La. 153 50 
Nichols V. McGeoch 78 W. 360 582 
Nilson V. Morse 52 W. 240 - 71 
Noel V. Drake 28 Kan. 265 - 577 
Northern T. Co. v. Snyder 113 

W. 516 9^ 



Oatman v. Batavian Bank 77 

W. 501 - - - - 226 
O'Brien v. 111. S. Co. 203 Fed. 

436 278 

O'Connell v. Smith 101 W. 68 56 
O'Connor v. Fond du Lac 109 

W. 253 97 

O'Donnell v. New London 113 

W. 292 - - - - 97, 100 
O'Malley v. Fricke 104 W. 280 18 
Oscar Smith ft Sons Co. v. 

Janesville B. M. 150 W. 528 • 313 
O'Shea v. Wilkinson 95 Cal. 

454 684 

Oshkosh W. W. Co. v. Osh- 

koshl06W. 83 - - - 97 

V. 109 W. 208 • - 97 

O'Sullivan v. J. S. Stearns L. 

Co. 154 W. 467 - - - 9S 
Owen V. Portage T. Co. 126 W. 

412 177 

Pacific T. & T. Co. v. Wright- 
Dickinson H. Co. 214 Fed. 

666 409 

Packard v. Kinzie Ave. H. Co. 

105 W. 323 - - - - 17 
Palica V. Palica 114 W. 236 - 360 
Paulson V. Boyd 137 W. 241 - 561 
Peale v. Central R. Co. 18 Int. 

Comm. Comm. Rep. 25 • 379 
Pease v. Pease 72 W. 136 - 90 
Peck V. School Dist. 21 W. 516 IS 
Pendleton v. Beyer 94 W. 31 - 225 
Pennoyer v. Nefl 95 U. S. 714 451 
Pennsylvania Co. v. U. S. 236 

U. S. 351 - - - - 379 
People V. Bray 105 Cal. 344 - 355 
V. Gebhard 151 Mich. 

192 355 

Pepin Tp. v. Sage 129 Fed. 657 397 
Pereles v. Leiser 119 W. 347 801-8 

V. 138 W. 401 301, 302 

Peterson v. Gibson 191 111. 365 308 
Pewaukee M. Co. v. Howitt 86 

W. 270 72 

Phillips V. Portage T. Co. 137 

W. 189 582 

Phcenix Ins. Co. v. Frisaell 

142 Mass. 513 - - - 16S 
Phoenix M. Co. v. White 149 

W. 287 202 

Pickett V. Ferguson 45 Ark. 

177 461 

Pierce v. C. ft N. W. R. Co. 86 

W. 283 450 



Wis.] 



CITATIONS. 



XXVll 



16 



161 



409 
409 

183 



Finger t. Vanclick 36 W. 141 
Pinoza y. Northern C. Co. 152 

W. 473 

Pioneer T. ft T. Co. ▼. Grant 

Co. R. T. Co. (Okla.) 119 

Pac 968 - - - - 

V. St^te 38 Okla. 554 - 

Poccardi v. Public S. Comm. 

(W.Va.) 84S.B.242 - 
Polk y. Railroad Conun. 154 

W. 523 - - - - 127-129 
PopoBkey y. Munkwitz 68 W. 

322 

Pormann y. Frede 72 W. 226 - 
Post P. Co. y. Hallam 59 Fed. 

530 

Potter y. Taggart 54 W. 395 • 
Pratt y. Brown 3 W. 603 
Proyincial Ins. Co. y. Lapsley 

15 Gray 262 - 



71 
15 

528 
137 
360 



. 258 



QuackenbuBh y. Wis. ft M. R. 

Co. 62 W. 411 - - - 513 
Qoaw y. Lamerauz 36 W. 626 15, 16 
Quinn y. C, M. ft St. P. R. Co. 

141 W. 497 - - - - 101 

Randall y. B. ft O. R. Co. 109 

U.S. 478 .... 465 
Ransom y. C, St. P., M. ft 0. 

R. Co. 62 W. 178 - - 463, 464 
Raynor y. Valentin Blatz B. 

Co. 100 W. 414 - - - 71 
Redlin y. Wagner 160 W. 447 149, 

582 
Redman y. Hartford F. Ins. 

Co. 47 Ww 89 - - - 7 
Reed y. Madison 83 W. 171 • 110 
Reeyes y. Goff Penn. (N. J.) 

609 286 

Reliance Mnt. Ins. Co. y. Saw- 
yer 160 Mass. 413 • - 258 
Rhyner y. Menasha 97 W. 523 331 
Rice, Will of, 150 W. 401 - 18, 582 
Richter y. Estate of Leiby 107 

W. 404 582 

Rigg y. Bias 44 Kan. 148 - 603 
Rinael y. Stumpf 116 W. 287 - 300 
Rock y. Monarch B. Co. 87 

Ohio St 244- - - - 277 
Roeh y. Business Men's P. 

A880. 164 Iowa 199 - - 481 
Rogers y. Hollister 156 W. 

517 24 

Rogers-Rnger Co. y. Murray 

115 W. 267 ... 471 

Root y. Sherwood 6 Johns. 68 603 



Rosholt y. Worden-Allen Co. 
155 W. 168 - - - - 523 

Rowell y. Smith 123 W. 610 - 174 

Rueping v. C. ft N. W. R. Co. 
116 W. 625 - - - - 72 

Rumford Falls P. Co. y. Fidel- 
ity ft C. Co. 92 Me. 574 47, 50 

Russia C. Co. y. Le Page 147 



Mass. 206 
Ryan y. La Crosse City R. Co 
108 W. 122 - 

y. Outagamie Co. 80 W 



336 



Sabine y. Fisher 37 W. 376 
St. Louis D. B. ft P. Co. 

Md. C. Co. 201 U. S. 173 
St. Louis G. A. Co. y. Wana 

maker 115 Mo. App. 270 
St. Louis, I. M. ft S. R. Co. y 

Craft 237 U. S. 648 - 

y. Edwards 227 U. S. 265 

y. Taylor 210 U. S. 281 - 

St. Louis ft S. F. R. Co. y. Co- 

narty 238 U. S. 243 - 457, 458 



202 
110 
594 



149 



51 

397 

271 
379 
270 



y. Phillips 17 Okla. 264 



77 
71 



Salyo V. Duncan 49 W. 151 - 
Samish Riyer B. Co. y. Union 

B. Co. 32 Wash. 586 - - 397 
Sargent y. Rutland R. Co. 86 

Vt. 328 381 

Sauerhering y. Rueping 137 

W. 407 576 

Sazyille y. Bartlett 126 W. 

655 - - - - 94,170 
Scheer v. Keown 34 W. 349 - 15 
Schencke P. Co. y. Phlla. C. 

Co. 142 N. Y. Supp. 1143 - 50 
Schieflelin y. Whipple 10 W. 

81 425 

Schillinger v. Verona 96 W. 

456 - • - - 333,334 
Schmeckpepper v. C. ft N. W. 

R. Co. 116 W. 592 - - 177 
Schmidt y. Menasha W. W. 

Co. 92 W. 529 . - - 582 
V. Trayelers Ins. Co. 



244 Pa. St. 286 - - - 
Bchmuhl y. Milwaukee E. R. 

ft L. Co. 156 W. 585 - 
Schoblasky y. Ray worth 139 

W. 115 

Schreiber v. Carey 48 W. 208 - 
Schug y. C, M. ft St. P. R. Co. 

102 W. 515 - 
Schwind v. C, M. ft St. P. R. 

Co. 140 W. 1 



50 

367 

30 
228 

465 

513 



XXVUl 



CITATIONS. 



[162 



Seamans v. Carter 15 W. 548 - 100 
Seaver t. Union 113 W. 322 - 334 
Seavey v. Shurick 110 Ind. 

494 606 

Secard v. Rhinelander L. Co. 

147 W. 614 - - - - 109 
Security Mut. L. Ins. Co. v. 

Prewitt 202 U. S. 246 - - 381 
Seegar y. Ashland 101 W. 515 97 
Selleck v. Janesville 100 W. 

157 507 

Shaft V. Carey 115 W. 155 - 71 
Sharon v. American F. Co. 

172 Mo. App. 309 - - 278 
V. Winnebago F. M. Co. 

141 W. 185 - - - - 151 
Shelton St. R. Co., Applica- 
tion of, 69 Conn. 626 - - 397 
Shepard v. Pabst 149 W. 35 - 321 
Sherwoods, In re, 210 Fed. 754 224 
Sicklesteel v. Edmonds 158 

W. 122 167 

Siggins V. C. & N. W. R. Co. 

153 W. 122 - - - - 548 
Sims T. Petaluma Q. L. Co. 

131 Cal. 656 - - - - 577 
Singer M. Co. v. June Mfg. Co. 

163 U. S. 169 - - - 202 
Singers-Bigger y. Young 166 

Fed. 82 - - - - 577 

Skaggs Y. 111. Cent. R. Co. 124 

Minn. 503 - - - - 457 
Skinner y. Skinner 5 W. 449 - 90 
Skrinsrud y. Schwenn 158 W. 

142 254 

Slam Y. Lake Superior T. & T. 

R. Co. 152 W. 426 - - 440 
Sleeper y. Iselin ft Co. 59 

Iowa 379 - - - - 228 
Smedley y. Smedley 30 Ala. 

714 553 

Smith Y. A. C. L. R. Co. 210 

Fed. 761 - - - - 425 
Y. C. & N. W. R. Co. 161 

W. 560 463 

Y. Ingram 90 Ala. 529 - 223 

Y. Peckham 39 W. 414 - 149 

Y. State 146 W. Ill - 603 

Y. Utley 92 W. 133 - - 156 

Y. Wagner 9 Misc. 122 - 223 

Smith & Sons Co. y. Janes- 

Yille B. Mills 150 W. 528 - 313 
Southern Wis. P. Co., In re, 

140 W. 245 - - - - 420 
SpafPord y. JanesYille 15 W. 

474 15 

Sparks y. Wis. Cent. R. Co. 

139 W. 108 - - - - 177 



Sparrow y. Menasha P. Co. 

154 W. 469 - - 141, 144, 523 
Spencer y. World's C. Expo. 

163 111. 117 - - - - 223 
Stanton Co., In re, 162 Fed. 

169 224 

Stark Y. Brown 12 W. 672 - 228 
State Y. C, M. & St. P. R. Co. 

136 W. 407 - - - - 379 

Y. De Lano 80 W. 259 - 644 

Y. Goodrich 84 W. 359 - 93 

Y. Milwaukee 152 W. 



228 



Y. 



158 W. 564 - 



Y. Redmon 134 W. 89 
Y. Russell 83 W. 330 
Y. Wise 70 Minn. 99 



632, 642 
641 
592 
294 
355 



State ex rel. Andrews y. Osh 

kosh 84 W. 548 • 
Ashland W. Co. y. Bar 



503 

97 



don 103 W. 297 
— Att'y Gen. y. Foote 11 
W. 14 - - . - 414,415 
Y. O'Neill 24 W. 149 594 



Board of Ed. Y. Hunter 



111 W. 582 - 
— Brown y. 



Appleby 139 



488 
60 



W. 195 - 

— Carey y. Ballard 158 W. 

251 - - - - 173,593 

— Cook Y. Houser 122 W. 

534 - - - 94,171,489 

— Cothren y. Lean 9 W. 279 415 

— DaYls & S. L. Co. Y. Pors 

107 W. 420 - - - - 101 

— Douglas Y. Hastings 11 

W. 448 616 

— Fourth Nat. Bank y. 
Johnson 103 W. 591 - - 499 

Garrabad y. Bering 84 



W. 585 - - - - - 592 

— Lederer y. Inter-Na- 
tional InY. Co. 88 W. 512 - 93 

— Manitowoc G. Co. 

470 

129 
409 



Y. 

Wis. Tax Comm. 161 W. Ill 
N. P. R. Co. Y. Railroad 



Comm. 140 W. 145 

— Oregon R. & N. Co. y. 



Fairchild 224 U. S. 510 

— Owen Y. Donald 160 W. 

21 ... - 609,656 

— Parsons y. Comm'rs 9 

W. 236 623 

— P. S. Comm. Y. Skagit R. 

T. & T. Co. 85 Wash. 29 - 409 

— Schumacher y. Mark- 
ham 162 W. 55 - - - 66 



Wis.] 



CITATIONS. 



XXIX 



state ex rel. Taylor v. Town 

Board 69 W. 264 - - - 17 
Weiss T. District Board 

76 W. 177 - - - - 494 
Steele y. Btheridge 15 Minn. 

501 603 

Stenbom y. Brown-Corliss E. 

Co. 137 W. 564 - - - 49 
Steyens y. Brooks 23 W. 196 - 434 
Stewart y. Wilsons ft C. C. Co. 

5 Sess. Cas. (1902-3) 120 • 183 
Stierle y. Union R. Co. 166 N. 

Y. 70. 684 - - - - 22 
Stoepel y. Union T. Co. 121 

Mich. 281 • - - - 223 
Stone y. Little Yellow D. 

Dist. 118 W. 388 - - - 101 
V. Oconomowoc 71 W. 

155 498 

Streissguth y. Reigelman 75 

W. 212 290 

Streit y. Pay 230 111. 319 - 136 
Stromberg, Allen 6 Co. y. Hill 

170 111. App. 323 • - 449, 450 
Strong y. Steyens Point 62 W. 

255 109 

Stnmm y. Western Union Tel. 

Co. 140 W. 528 - - - 71 
Swanby y. Northern State 

Bank 150 W. 572 - - - 367 

Tallman y. Chippewa S. Co. 

155 W. 36 - - - - 141 

y. Ely 6 W. 244 - - 228 

Telford y. Ashland 100 W. 238 97 
Texas & P. R. Co. y. Interstate 

Comm. Comm. 162 U. S. 197 379 
Thomas y. Thomas 41 W. 229 360 
Tilly y. Mitchell 6 L. Co. 121 

W. 1 498 

Timmins y. Leeds F. Co. 83 L. 

T. Rep. 120 - - - - 183 
Titus y. Northbrldge 97 Mass. 

258 - ' - - - - 334 
Tobin y. Tobin 139 W. 494 - 633 
Todd y. Floumoy's Heirs 56 

Ala. 99 397 

Toomey y. So. Pac. R. Co. 86 

Cal. 374 - - - - 466 
Trade-Mark Cases 100 U. S. 82 380 
Treat y. Hiles 81 W. 280 - - 71 

Uecker y. Thiedt 137 W. 634 - 600 
Ullman y. C. ft N. W. R. Co. 

112 W. 150 - - - - 325 
Union Ins. Co. y. Smart 60 N. 

H. 458 - - - - 257,258 



Union P. R. Co. y. Wyler 158 

U. S. 285 - 425, 426, 431-433 
United Am. F. Ins. Co. y. 

American B. Co. 146 W. 573 7 
U. S. y. U. S. F. ft G. Co. 236 

U. S. 512 - - - - 278 
V. Louisiana 127 U. S. 

182 615 

U. S. G. Co. y. Oak Creek 161 

W. 211 471 

U. S. T. Co. y. Wabash R. Co. 

150U. S. 287 - - - 223 

Van Buren y. Downing 41 W. 

122 174 

Vandalia R. Co. y. Railroad 

Comm. 182 Ind. 382 - - 511 
Vanderpool y. La C. ft M. R. 

Co. 44 W. 652 - - . 100 
Van Dresar v. Coyle 38 W. 672 16 
Van Dyke y. Milwaukee 159 

W. 460 470 

Vano y. Canadian C. C. M. Co. 

13 Ont. 421 - - - . 583 
Van Valkenburgh y. Milwau- 
kee 43 W. 574 - - - 360 
Vennen y. New Dells L. Co. 

161 W. 370 - - - - 184 
Vickery y. N. L. N. R. Co. 

(Conn.) 89 Atl. 277 - - 425 
Von Trott y. Von Trott 118 

W. 29 360 

Voorhees y. Smith Schoon- 

maker Co. 86 N. J. Law 500 183 

Wabash R. Co. v. Hayes 234 

U. S. 86 - - - - 426 
Wagner y. Milwaukee 112 W. 

601 414 

Walters y. C, M. ft St. P. R. 

Co. 104 W. 251 - 463, 464, 586 
Warden y. M., H. ft B. R. Co. 

128 Ky. 563 - - - - 398 
Wardsboro v. Jamaica 59 Vt. 

514 397 

Warren D. Bank y. Fidelity ft 

D. Co. 25 Ky. L. Rep. 289 - 10 
Washburn v. Lee 128 W. 312 - 367 
Wasson y. Boland 136 Mo. 

App. 622 - - - - 433 
Waterman Co. y. Modern Pen 

Co. 235 U. S. 88 - - - 202 
Waters-Pierce Oil Co. y. 

Texas 177 U. S. 28 - 380, 381 
Webber v. Ward 94 W. 605 - 149 
West V. Camden 135 U. S. 507 576 
y. Wells 54 W. 525 - - 547 



XXX 



CITATIONS. 



[162 



Wheaton v. North British & 

M. Ins. Ck>. 76 Cal. 415 - - 9 
Wheeler v. Westport 30 W. 

392 - - - • 248,330 
Whereatt V. Ellis 65 W. 639 - 581 

V. Worth 108 W. 291 360, 431 

White V. Hanchett 21 W. 415 - 29 
V. M., St. P. ft S. S. M. 

R. Ck). 147 W. 141 - - 306 
Whiteley v. Equitable L. Ab- 

Bur. Soc. 72 W. 170 - - 263 
Whitney v. Karner 44 W. 563 15 
Wichita & W. R. Co. v. Koch 

8 Kan. App. 642 - - - 76 
Widener v. Ala. G. S. R. Co. 

(Ala.) 69 South. 558 - - 441 
Wight y. Rindskopf 43 W. 344 294, 

295 
Wilbur Y. Stoepel 82 Mich. 

344 677 

Wilcox V. Forth 154 W. 422 - 100 
Wiley V. Wiley 115 Md. 646 - 285 
Willard v. C. & N. W. R. Co. 

150 W. 234 - - - - 325 
Willette v. Rhinelander P. 

Co. 145 W. 537 ... 72 
Williams y. C. ft A. R. Co. 135 

111. 491 - . - - 466 

V. Hayes 68 W. 248 - 17 

V. Hicks P. Co. 159 W. 

90 .... 154,528 

Wilson V. Chippewa Valley E. 

R. Co. 120 W. 636 - - 586 



Wilson V. Mineral Point 39 
W. 160 

V. Shipman 34 Neb. 373 

Wingert v. Carpenter 101 
Mich. 395 - - - - 

Winter v. La Crosse Tel. Co. 
15 Wis. R. R. Comm. Rep. 36 

Winterfleld y. Cream City B. 
Co. 96 W. 239 - - - 

Wis. M. ft F. Ins. Co. Bank ▼. 
Mann 100 W. 596 

Wis., M. ft P. R. Co. V. Jacob- 
son 179 U. S. 287 - 

Withers y. Edmonds 26 Tex. 
Civ. App. 189 - - - 

Wolf y. Smith 149 Ala. 457 - 

Woodruff y. Erie R. Co. 93 N. 
Y. 609 

Wyman y. Buckstaff 24 W. 
477 

Yorton v. M., L. S. ft W. R. 
Co. 54 W. 234 

Zappala v. Industrial Ins. 

Comm. 82 Wash. 314 - 
Zettel V. West Bend 79 W. 316 
Zinc C. Co. y. First Nat. Bank 

103 W. 125 . - - . 
Zitske y. Goldberg 38 W. 216 - 
Zwietusch y. East Milwaukee 

161 W. 519 - 



403 
86 

433 

400 

322 

174 

408 

577 
466 

223 
17 

114 



183 
497 

15 
415 

354 



STATUTES CITED. 



Ordinance of 1787 - - - 436 
CoNSTiruTioN op Wisconsin. 



Art. 



If 



I, 

I, 

I, 

IV, 

VII, 

VII, 

VII, 

VIII, 

IX, 

X 

X, sec. 
X, " 
X, 



it 
«f 

M 
ff 
II 
II 
II 
II 



II 



8 - - - 56 

9 - - - 161 
18 482-3,489,490-94 
18 - 410,413.414 

2 - - - 416 
14 - - 416,419 
21 - 410^413-415 
10 - - - 633 

1 . . - 436 

- 611, 612 

2 - 630,632,644 

3 482,483,489,490 
8 - - - 644 



Session Laws. 

1847. Page 194 

1849. Ch. 86 - - - 

1859. P. & L. ch. 199 



129 
416 
415 



Session Laws — con. 



1865. Ch. 537 



1866. 
1866. 
1867. 
1869. 
1871. 
1873. 
1876. 
1879. 
1880. 
1882. 
1882. 
1887. 
1893. 
1897. 
1897. 
1899. 
1903. 



« 



P. & 

Ch. 



41 
II 
II 
« 
II 
« 
II 
II 
11 
it 
II 
fl 
II 
II 



610, 615-621, 625, 
628, 634-639, 649-655 

56 - - - - 643 
L. ch. 400 - 629, 631 
334 - - - - 631 
151 - - - - 634 
137 - - - - 415 
107 - - . - 417 
146 - - - - 417 
115 . - - - 417 
261 - - - 630. 631 

36 - - - - 95 
276 .... 640 
125 - - - - 417 
185 - - - - 634 

49 - - - 621,657 

367 609, 628, 634, 647, 656 

293 - - - 621,657 

1 - - - - 417 



Wis.] 



CITATIONS. 



XXXI 



1903. 

1905. 

1907. 
1907. 
1907. 
Id07. 
1907. 
1907. 
1907. 
1907. 
1909. 

1909. 

1909. 

1909. 

1911. 

1911. 

1911. 

1911. 

1911. 

1911. 

1911. 

1911. 

1911. 

1911. 

1913. 

1913. 

1913. 

1915. 

1915. 

1915. 

1915. 

1915. 

1915. 

1915. 

1915. 

1915. 

1915. 



Session 
Ch. 450 - 

" 264 - 



<« 



«c 



«« 



•■ 



•< 
•a 
>< 
•« 
•■ 
*( 
■I 
•f 
<i 

I 

II 
«• 

M 
■f 
II 
f« 



M 
(* 
14 
•I 
«I 
l( 
M 
ii 
•< 
i( 



23, 

23, 

96 
266, 
299 
350 
499 
505 
143 
320 
374 
540 

50 
337 
353 
479 
546, 
546, 
596 
638 
650 
653 

54, 
159 
382 
118 
219 
219, 
219, 
219, 
437 
518 
589 
624 
633 



Laws — con. 

614, 620, 622, 623, 
635-687, 639, 640 

- 614, 619, 622, 
623, 625, 635, 637 
9 . 

35 - 



<i 



sec 1 



sec. 1 



• 162-164 

- 164 
. 622, 628 

- 591 

- 646 
. 646 

' 236, 237 

- 646 

- 349, 351 

- 646 

- 624 
. 127, 130 

- 146 

- 174 
■ 157, 160 

- 148 

- 392 
1, sub. 3 - 384 

- 237 

- 619, 622 
. 529, 531 

- 462, 463 
. 162-164 

. 169 
. 495,497 

- 643 
- 95, 100, 340, 489, 553 
sec. 1 • 95,100 

2 • 157,160 

8 • -212 

. 462 

410, 413, 416-418 

- 410, 418 

- 624 

- 646 



M 



sec. 1 



«i 



IfiLWAUKEE Code of 1914. 

Sec. 474, sub. (d), (e) - 589-591 

Revised Statutes of 1849. 

Ch. 24, sec 61 - - * 688 
" 30, " 1 ... 354 

Revised Statutes of 1858. 
Ch. 36 355 

Revised Statutes of 1878. 
Section 1567 - • - - 355 

Statutes (1898 and since). 

Sec. Page. 

94—1 to 94—36 ... 55 
94—1 to 94—38 - - - 531 
94—17 - - - - 524. 529 



Statutes (1898 and since) — con. 



fifec. 

94—38 - 

12.17 - 
172—54, sub. 32 
190 - 
246 - 

250, 251 - 
573—1 to 573—10 
573—6, sub. 3 
677. 678 - 
682-685 - 
725. sub. (4) 
824- 
842- 
884- 

893. sub. 26 
037a 
037c 

087TO— 2, sub 
132- 
141- 
164- 
176- 

51.43 - 

51.44 - 
294- 

317m — 4, sub 
326- 
339- 

379—14, 1379—17 
379—18 - 
379—20 - 
379— 20m 
379— 31m, sub. 2 
3886 - - 91-1 
567- 
675—16 - 



Page. 

524, 529 

• 529 

- 646 

- 643 

- 638 

- 520 

- 500 
500, 501 

- 98 
. 98 

- 608 

169. 172 
604, 608 

57,60 

- 593 

- 361 
361, 369 
466, 470 

- 472 
471, 472 
361. 366 

- 472 

- 371 
370, 371 
434,436 

172. 173 
349. 351, 352 
102-104, 330 

- 539 

- 540 
539, 541, 542 

. 541 

- 540 
94, 168. 169, 171 

- 353 
558, 560 



684f— 1 to 1684«— 79 



684*— 4 - 

684t— 18 

684f— 19. sub. 2. 5 

684t— 64 

728a. sub. 2 

748-1770^ (ch. 85) 

765- 

7706 

7706, sub. 10 

771-1797n— 12 <ch. 86) 

772. sub. (2) 

773- 

774- 

774n 

778, sub. 7 

797—1 to 1797— 37n 

797—1 to 1797—38 



- 281, 284, 

287, 335 

281, 284. 287 

335. 339 

335. 339 

- 340 
146. 148 

- 321 

- 38 
279, 281. 534. 537 

258. 381 



- 321 
187. 213 

- 38 
33,37 

33, 37. 38 

- 241 

- 93 

- 91 



_ J 



XXXll 



CITATIONS. 



[162 



Statutes (1898 and 


since) — con. 


Statutes (1898 and 


since) — con. 


Sec, 






Page. 


Sec, 




Page, 


1797—9, sub. 1 




m 


' 438, 442 


2327a 


. 


" 296, 300 


1797— 10m 




- 


- 375, 376 


2327ft 


. . 


- 300 


1797— 12e 




* 


- 127, 128 


2361- 


« „ 


. 358, 359 


1797—31 - 




- 


- 91.92.94 


2369 • 


. 


- 358 


1797m— 1 - - - - 238 
1797m— 1 to 1797m— 109 234-7, 240 
1797m— 4 - - - 383.384 


2374 - 
2394—1 - 


m m 


20, 23 

- 144 


1797m — 4, sub. 


1 


. 


. 392 


2394—1 to 2394—31 


- 57, 59, 61. 


1797m— 4, " 


2 


« 


392. 399, 406 


148- 


150, 181, 


184, 341. 342, 


1797m— 4, " 


3 




- 402 


344, 


, 347-8, 507, 597-8, 600 


1797m— 70 






- 383, 395 


2394—3 - 


- 


- 347 


1797m— 74 






- 407 


2394—3, sub. 


(2) - 


- 341,342 


1797m— 76 






235, 236, 238 


2394—3, " 


(3) - 


180, 181. 184 


1797m— 77 






- 234-238 


2394—3 to 2394—31 


347,348, 505 


1797m— 78 






235, 236, 238 


2394—7 - 


- 


57, 60 


1797m. — 79, sub. 


. 1 




- 237 


2394—7, sub. 


(2) - 


- 347 


1797m^79, " 


2 




- 236 


2394—8 - 


m m 


- 347 


1797m— 79, " 


3 




- 237, 238 


2394—8, sub. 


(2) - 


- 149 


1797m— 79, " 


4 




• 236, 238 


2394—9, " 


1 - 


- 504, 507 


1797m— 80 






234, 237, 238 


2394—10 - 




- 57,61,62 


1797m— 80 et seq. 




- 237 


2394—11 - 




- 596, 598 


1809 - 






- 462-464 


2394—15 - 




- 344, 348 


1809, sub. 4 - 




458,461,463,465 


2394—16 - 




- 596, 598 


1809, " 6 - 






458, 461, 462 


2394—17 - 




- 600 


1809t; 






- 507, 511 


2394—19 - 


- 344 


. 348, 597, 600 


1809t7, sub. 2 - 






- 463 


2394—25, sub 


. 1 - 


- 503, 505 


1810 - 






- 513 


2394—25, " 


2 - 


503, 505, 506 


1810, sub. 2 - 






- 513 


2394—48, 2394—49 - 


- 139, 141 


1816 - 






- 428 


2416 - 


m m 


- 626 


1895m to 1978(f 


(ch. 89) - - 319 


2CiO - 


- 


- 367 


19190 






- 257 


2613 - 


. 


145, 149, 582 


1919a, sub. 1 - 






- 255 


2635 - 


- 


- 608 


1919a, " 4 - 






255, 257, 258 


2654, 2656a 


- 


- 367 


1947, " 4 . 






- 321 


2669a 


. 


157,160,553 


19550—5 - 






- 257 


2731 - 


• m 


- 289, 290 


1956, sub. 9 - 






- 563, 564 


2832 - 


- 


- 12,15,16 


1960 - 






- 474 


2836a 


. 


- 95 


1960, sub. 1 - 






- 477 


28366 


157, 160, 340, 482, 489 


1960, " 2 - 






- 474, 478 


2918, sub. (6) 


- 


- 335, 340 


1960, " 8, 9, 


13, 


14 


- 478 


2921 - 


• • 


- 214 


1976 - 






. 255, 257 


2959 - 


- 


■ - 604,608 


1978 - 






- 257 


3049a 


- 


- 212 


2022 - 




216 


, 217, 220, 230 


3180 - 


- 


- 169 


2022, sub. 1^ - 






- 220 


3358-3373 (ch 


. 145) 


. 275 


2022, " 4-6 - 






- 221 


3858 - 


• • 


- 301, 302 


2022, " 7 - 






- 221,222 


4053-4205 (ch 


.176) 


- 10 


2022, " 8 - 






- 221 


4096- 55,356, 


, 358, 359 


, 565, 580, 581 


2077 - 






- 633 


4190, 4191 


m w 


33, t^ 


21970 






. 273, 274 


4202m - 


1, 


9, 10, 563, 564 


2307 - 






- 29 


4488 - 


- 


- 60 


2307, sub. (1) - 






- 25 


45436 


m m 


- 532 


2308 - 


33, 37, 281, 284, 287 


4543i; 


m m 


- 529 


2313a 




- 


- 446, 450 


4654 - 


m « 


. 499 



Wis,] 



CITATIONS. 



XXXlll 



TEXT-BOOKS CITED. 



1 Addison, Contracts (Mor- 
gan's ed.) sec. 87 - 

Bacon, Ben. Soc. §§ 307, 308 - 

2 id. (3d ed.) % 450a 
Barnes, Interstate Transpor- 
tation, p. 447 ... 

BoTiTier, Law Diet. "Damnum 

absque injuria" ... 

Boyd, Workm. Ck>mp. sec. 458 

1 Bradbury, Workm. Comp. 
Law (2d ed.) 367- 

Cent. Diet. "Injury" 

45 Cent. Dig. tit. Subscrip- 
tions, s 14 - 

Collier, Bankruptcy ( 10th 
ed.) pp. 1004, 1005 

2 Cooley, Briefs on Insur- 
ance, 1147 . . - . 

2 Corp. Jur. tit. Agency, 
H 381, 382 - 

7tf. p. 821, § 495 

3 Cyc 877 

4 i<f. 18 - 
13 id. 56 - 
13 id. 255 

24 id. 990, 991 - 

25 id. 387 
25 id. 402-405 - 
27 id. 1250 
27 id. 1626 

33 id. 784 

34 id. 352 

36 id. 1123, j - 

37 id. 496. 501 - 

38 id. 134, C - 
38 id. 1874 

Dawbarn, Bhnployers' Liabil- 
ity (4th ed.) 100 - 

4 Dec. Dig., Const. Law, 
1169-75 . . . . 

3 Elliott, Railroads (2d ed.) 
11158 

4 id. f 1579 .... 



547 

307 
564 

379 

405 
183 

183 

404 

174 

226 

9 

168 
547 
60 
449 
607 
405 
135 
533 
528 
229 
228 
465 
223 
354 
174 
137 
603 



18 Ency. PI. & Pr. 984 



86 



1 Freeman, Judgments, § 117 17, 18 
/d. § 120 18 

High, Extr. Leg. Rem. (3d 

ed.) fifi 12,36 - - - 488 

1 Hutchinson, Carriers (3d 
ed.) sec. 442 et seg. - - 75 

2 Lewis's Sutherland, Stat. 
Constr. (2d ed.) §§ 420, 421 354 

1 LoYoland, Bankruptcy (4th 

ed.) § 313, p. 647 - - - 223 
/tf. § 320 226 

1 McAdam, Landl. & T. (4th 
ed.) 572 - - - - 138 



Newell, Slander ft L. (3d ed.) 
§§633-636 . - . . 

1 Parsons, Contracts, 79 

1 Pomeroy, Bq. Jur. (3d ed.) 

§ 281 

Proffatt, Jury Trial, § 460 



528 

547 

171 
603 



2 Ruling Case Law, p. 491, 

§ 52 60 

4 id. 930 325 

4 id. 988 75 

4 id. 988 et 8eq. - - - 77 

6 id. 676 et aeq. - - - 288 

6 id. 811 288 

Smith, Fraud, § 373, sub. (e) - 287 

2 Spelling, Injunctions, § 1385 488 

Tapping, Mandamus, 10 (74 

Law Lib. 63) • - - 488 

182 2 TifTany, Landl. ft T. 1521 - 137 

92 4 Wigmore, EYidence, § 2433 562 
Wisconsin Annotations, sec. 

17706, sub. 10 - - - 258 

465 i Wood, Mandamus (2d ed.) 51 488 

441 ! 2 Words ft Phrases, 1823 - 405 



IN MEMORIAM. 



JOSEPH GORDEX DONNELLY. 

On the 14th day of March, 1916, Mr. Walter D. Corrigan 
of Milwaukee addressed the court : 

May it please the Court: — As the representative of the Milwaukee 
Bar Association and its committee, composed of Honorable Christian 
Doerfler, Honorable Andrew D. Agnew, and myself, I submit for 
record in this court the foUowing, as a memorial of Judge Joseph G. 

DONNEIXY. 

Memorial of the Milwaukee Bar Association. 

Joseph Oobden Donnelly was born in Ireland January 4, 1856. 
He died at his home in Milwaukee May 10, 1915. He entered that 
profound silence which we all so soon must enter. 

Such is a part of the story of every life — ^for life is but a span be- 
tween the cradle and the grave. His life was cut short of man's al- 
lotted time. Human reason falls short of understanding why so 
excellent a spirit, a man of so much usefulness, should be cut down 
in the glory of his life, in the richest prime of his royal manhood. 
God alone can tell. Religion teaches us this — and afPords us the sole 
consolation that can come at such a time. 

May his soul rest amidst the "unspeakable peace of the stars." 

Every member of this memorial committee was proud to count 
himself one of that little inner circle of precious friends of Joseph 
G. Donnelly. We find ourselves too full of emotion to pay half-fitting 
tribute. In performing this sad duty we have to fortify ourselves 
against despair. When we were weary from the toils of professional 
life, or otherwise, we could meet with Joe. His Joyous view of things 
would drive away fatigue or the clouds of melancholy. We loved 
him — ^and we know that each of us had a full share of that feeling 
reciprocated. Our own loss makes us understand the profoundness 
of the loss to his family and the state. 

He was one of the most gentle, noble, and lovable men in every re- 
lation of life. From the byways of the sorrowing there will be sob- 
bing hearts over his grave. 

Such is the end of a noble life — the end of its hopes and ambitions, 
its sweetness and its raptures. 

On September 21, 1865, Joseph came, with his parents, from the 
"Isle of Destiny" to his new home in this great American republic. 
That home was made in Milwaukee. 

In his early life he attended the Third ward school and St. Gall's 
school, and from the latter he was graduated in a thorough classical 



Wis.] in MEMORIAM. xxxv 

Joseph Gorden Donnelly. 

coarse. Thomas Shaughnessy, now "Baron Shaughneasy of Mon- 
treal, Canada, and of Ashford, County Limerick, Ireland," was a 
classmate and they had eyer been close friends. 

Joe won the valedictorian honors in the first Milwaukee high school, 
from which he was graduated in 1871. He then taught school for 
about fiye years. He won early distinction as an orator, which 
•brought to him an opportunity to take a conspicuous part in the 
famous Hayes-Tilden campaign. Shortly thereafter he was ap- 
pointed register of probate, in which position he senred until 1892. 
He was admitted to the bar in the spring Oi! 1879. 

In 1893 he was appointed United States consul general to Mexico 
by President Cleveland. He held this until 1899, serving with dis- 
tinction to himself and with honor to his country. While in Mexico 
he wrote the novel "Jesus Delaney," a story entitled to rare distinc- 
tion for its analysis of the Mexican character and of the reasons for 
the prevailing conditions in that unhappy land. Numerous publish- 
ers so recognized his ability and talents as an author that h^ was fre- 
quently urged to enter that field, and alluring inducements were held 
out to him, but his devotion to his profession caused him to turn a 
deaf ear. 

Upon his return to Milwaukee he entered the practice of the law, 
continuing until he became chief Judge of the civil court April 1, 
1910. He served several years as a court commissioner, and for one 
year was president of the Milwaukee Bar Association. 

Until his elevation to the bench he held a prominent place in pol- 
itics, serving his party and country as duty called. 

His services were in great demand upon the lecture platform, and 
had he consented he might readily have devoted his entire time to 
the platform, but he chose to sacrifice the financial advantage this 
would have afforded for the sake of being at home with his family 
and friends. 

He was a commanding figure In all things involving the welfare 
of his city. He was, without doubt, the most distinguished after- 
dinner speaker in the state and equal to any in the country. His 
keen wit and rich humor was the life of our own and state bar ban- 
quets for many years, and Joe will be missed on all such occasions, 
as he will be everywhere where those who knew h4m best gather to- 
gether. 

For many years prior to his death he devoted considerable time to 
the study of different judicial systems and of courts, and finally came 
to the conclusion that the systems in vogue in this country were 
radically wrong; that there should be no distinction between trial 
courts with reference to their Jurisdiction, and that the poorest liti- 
gant should be afforded a court with a Judge presiding of as high a 
grade as any. The idea finally worked out by him in concrete form 
was based upon what is known as the "one court system," with gen- 



xxxvi IN MEMOKIAM. [162 

Joseph Gorden Donnelly. 

eral JurlBdiction over all matters, with a chief or presiding Judge 
Laying the executive management and control of the court, with 
power to supervise and direct the activities of the various Judges 
thereof. This system, according to Judge Donnelly's idea, would 
result in a more just and equitable distribution of the labors of the 
various Judges and would tend to raise the standard and dignity of 
the courts, and would relieve the courts from the charge commonly 
made that the litigation of the wealthy receives special favor by rea- 
son of the higher character and grade of Judges presiding over the 
courts of higher Jurisdiction. This idea was presented in concrete 
form in an address prepared by Judge Donnelly and delivered before 
the State Bar Association in 1913. This address was the subject of 
considerable favorable comment among lawyers throughout the state. 
At the request of Pearson's Mazaglne his views were published there- 
in. This article attracted nation-wide attention. He received nu- 
merous communications from Judges, lawyers, and laymen from all 
over the country favorably commenting upon and approving his views. 

Long before a legislative committee was appointed for the purpose 
of recommending changes in courts and court procedure and the ad- 
visability of a court of conciliation, Judge Donnelly, as chief Judge 
of the civil court, put into practical execution the ideas connected 
with a conciliation court. He was master of the power of persuasion, 
and in a large percentage of causes before him he was instrumental 
in bringing about an equitable adjustment, avoiding the expense and 
feeling engendered by litigation conducted to final Judgment. His 
clear and quick perception enabled him to comprehend the most dif- 
ficult and complicated questions of fact and law almost instantly, and 
his decisions were quite generally affirmed by the circuit and supreme 
courts. In determining questions of fact he was guided almost ex- 
clusively by his ideas of Justice and equity. 

The happiest period of Judge Donnelly s life and the one in which 
he took greatest pride, and during which he felt he was accomplish- 
ing the greatest good, was during his incumbency of the office of chief 
Judge of the civil court. He commanded and maintained due respect 
for his high office, and it can truly be said that in his election to, and 
his career as, chief Judge of the civil court, he realized the high am- 
bition of his youth to become a great Judge. 

Judge Donnelly was married to Lois Smith, daughter of a prom- 
inent Milwaukee pioneer, on August 13, 1878. Mrs. Donnelly and 
their six children survive him. 

In all his life, full of rich accomplishments as an American citizen, 
he never forgot his native land. His heart was with it in its strug- 
gle for home rule. As a result of a local movement in which he was 
the recognized leader, more money was raised in Milwaukee to aid 
the Irish cause than in any other city of the United States. Among 
the personal gratifications of his life was the fact that the great cause 
was triumphant in his time. 



Wis.] in MEMOKIAM. xxxvii 



Joseph Gorden Donnelly. 



Irish history tells us that the motto of the "Donnelly" family was 
^'Strong and faithful." Joseph Gobden Donnelly always livej up 
to that standard. He was ever "strong and faithful/' and for those 
Tirtuee we all hold him in affectionate and loving remembrance. 

On behalf of the court Mr. Chief Justice Winslow re- 
sponded as follows : 

The memorial fully and Justly portrays the many admirable quali- 
ties of our deceased friend* and brother. This court receives it 
gladly and directs that it be spread upon its records in perpetual re- 
membrance. 

I may add a personal tribute and with that the record will be 
closed. I first made the acquaintance of Judge Donnelly in 1876 
when, at the age of twenty, he made a political speech at Racine in 
the Presidential campaign of that year. His audience was large and 
by no means easy to handle ; he was little more than a boy in appear- 
ance, but he carried his hearers all with him in a way that I have 
seldom seen equaled by the most finished orators. 

Logic, satire, and flashing humor combined made his appeal ir- 
resistible. It seemed to me then that he must be destined for a bril- 
liant political career, but I think there was much in practical politics 
that was distasteful to his nature. His was a sentimental or per- 
haps I should say an idealistic rather than a practical nature. Not 
that he was a mere dreamer but rather one who loved the true and the 
good; one to whom home and friends and calm thoughts meant more 
than preferment or wealth; one who loved his fellowmen and fain 
would be of service to them. 

I am quite sure that, as the memorial says, he felt his work on the 
bench of the civil court to be the most important and satisfactory 
work of his life. Here his legal abilities had full scope and here also 
he had the opportunity to so administer the law that it should be a 
help to the small litigant rather than an inflexible machine in the 
operation of which justice and humanity cut no figure. I can well 
imagine that in his court conciliation, kindness, and wise counsel 
ended many a petty quarrel whose only result would otherwise have 
been a legacy of hatred and ill will. 

A friend whose sincerity and loyalty held no flaw, a comrade whose 
comradeship was a perpetual delight, a citizen broad minded and de- 
voted to the highest ideals of citizenship, has gone from our midst. 
The ranks close up, the procession moves steadily on, the world's 
work cannot wait; but there are many who, in their quiet hours of 
reverie, will realize full well that life can never mean so much to 
them again now that he is gone. 



CASES DETERMINED 



AT THB 



January Term, 19 16. 



VfumrNJELDy Kespondent, vs. Massachttsetts Bonding & In- 

BUBANOE Company, Appellant 

Beptemter 15, 1915-^anuary 11, 1916. 

Surety or fidelity "bonds are contrticta of insurance: Construction: 
Warranties: Untrue statements in appUccaion: Avoidance of 
bonds. 

h A bond Issued by a surety company to indemnify an employer for 
loss sustained through dishonesty of an employee or agent has 
all the essential features of an insurance contract and is to be 
construed accordingly. 

2. Statements or answers by the employer in the written application 

for such a bond are not to be deemed express warranties, even 
though the bond itself declares them to be such, where that 
declaration is qualified by other stipulations showing that the 
intent of the parties was merely that the employer should in 
such application state the facts honestly and correctly to the 
best of his knowledge. 

3. Such an indemnity bond is a ''contract of insurance" within the 

meaning of sec. 4202m, Stats. 1913, and under that statute state- 
ments of the employer in the application could not defeat the 
bond unless they were "false and made with actual intent to de- 
ceive, or unless the matter misrepresented or made a warranty 
increased the risk or contributed to the loss." 

4. Where the surety company did not rely upon a statement made by 

the employer in the application for the bond, but relied upon 
the report of its own agent who made a special inquiry into the 
matter, such statement, having been made in good faith by the 
employer, although untrue, cannot be considered a misrepresen- 
tation or warranty which increased the risk or contributed to the 
loss, so as to defeat or avoid the bond. 

Vol. 162 — 1 



2 SUPREME COURT OF WISCONSIN. [Jan. 

Whinfleld t. Massachusetts Bonding ft Ins. Co. 162 Wis. 1. 

m 

Appeal from a judgment of the circuit court for Fond du 
Lac county : Chssteb A. Fowler, Circuit Judge* Affirmed. 

The plaintiff is the executrix and the beneficiary of a large 
estate left by her deceased husband. On November 20, 1909, 
she appointed N. W. Sallade to act for her as attorney in fact 
to manage for her the personal property located in Wisconsin 
and which had come to his possession from her deceased hus- 
band, giving him full power to deposit and invest it for her 
and reinvest it whenever required, and to execute, hold, and 
deliver all necessary papers and do every act in her place and 
stead in regard thereto, Mr. Sallade received into his pos- 
session personal property of the plaintiff amoimting to about 
$150,000, consisting largely of moneys, notes, mortgages, and 
other securities. While acting as plaintiff's attorney in fact 
in this matter Mr. Sallade was the treasurer of the Diocese of 
Fond du Lac, handling its funds and securities, and active 
manager of the Fond du Lac Church Furniture Company. 

Mr. Sallade made monthly statements in writing to plaint- 
iff of his accpunts as her attorney in fact During the sum- 
mer of 1910 the plaintiff, by letter, suggested to Sallade the 
propriety of furnishing her a fidelity bond. In September, 
1910, when plaintiff returned to Fond du Lac after an ab- 
sence from the state from the time she appointed him, he fur- 
nished her a list of the securities which he stated were her 
property and that they were deposited in a safety deposit box 
at the Fond du Lac National Bank. -Plaintiff and Sallade 
went to the bank, took the securities from the safety deposit 
box and compared and checked them with the monthly state- 
ment he had recently furnished her, and the securities pro- 
duced from the box agreed with this monthly statement of his 
account Some of these securities kept in the deposit box, 
which he represented as having been purchased for her and 
which appeared in his monthly reports, were in fact the prop- 
erty of the Diocese of Fond du Lac. The plaintiff in fact be- 
lieved they were securities he had acquired and held for her. 



11] JANUARY TERM, 1916. 8 

Wbinfleld y. Massachusetts Bonding k Ins. Co. 162 Wis. 1. 

Sallade bad in his possession a private account in the form of 
a loose-leaf memorandum book. The trial court found as 
facts concerning it: 

''That said Sallade also kept in his desk, at the Church 
Furniture Company's office, certain loose-leaf memoranda, 
not bound or fastened in any book, but merely tied together 
with thumb fasteners, the several sheets whereof were headed 
T. D. L. Fum. Co.,^ except one headed 'N. W. Sallade and 
il. O. Pillsbury,' which indicated the sums taken from the 
plaintiff and by Sallade converted to the use of the Church 
Furniture Company, but said leaves had no notation thereon 
indicating that they referred in any way to the plaintiff^s es- 
tate, and the plaintiff had no knowledge of the existence of 
said leaves or of the facts shown thereby." 

On November 19, 1910, Sallade made application in writ- 
ing to defendant for a surety bond. The defendant re- 
quested an "employer's statement" from plaintiff, and she, on 
December 22, 1910, made and signed such a statement, and 
attached thereto the list of securities which Sallade had fur- 
nished and checked with her in September, 1910. The ap- 
plication recites that her answers to the propounded printed 
questions of the statement were "to be taken as conditions 
precedent, and as the basis for the said bond applied for. . . ." 
By question 12 plaintiff answered that the means used to as- 
certain the correctness of Ballade's account were "a personal 
examination" and that they would be examined "yearly." 
The application also contains these questions and answers : 

"13. When were his. accounts last examined?" Answer. 
"Last of September in 1910. Amount of securities, 
$159,831.61, as per list examined and checked at that time, a 
copy of which is hereto attached." "14. Were they at that 
time in every respect correct, and proper securities and funds 
on hand to balance? Yes." "15. Is there now, or htfi 
there been, any shortage due you by applicant? No." 
"16. (a) Is he now indebted to you ? No. (b) If so, state 
amount and nature of indebtedness. No." "17. Have you 
any reason to know of or suspect any previous defalcation or 



4 SUPEEME COURT OF WISCONSIN. [Jan. 

Whinfleld v. Massachusetts Bonding ft Ins. Co. 162 Wis. 1. 

shortage by the applicant or any circumstances tending to in- 
dicate that he is not a proper person to bond? If so^ give 
particulars." Answer. "No." 

The trial court found and the evidence sustains the conclu- 
sion of fact : 

"That the defendant, in executing said bond, did not rely 
on the statement of the plaintiff, contained in said employer's 
statement, as to the securities in the hands of Sallade owned 
by her, but required the said list to be submitted to its local 
agent at Fond du Lac, and required such agent to examine 
the securities referred to in said list and compare them with 
the descriptions therein, to assure itself that they were in fact 
in Sallade's possession at the time the bond went into effect 
That said local agent did cursorily examine the identical se- 
curities described in said list, and all of them, which were 
produced and exhibited by Sallade to him. That none of 
said securities ran to or had upon or with them assignments 
running to the plaintiff or the said estate, nor did assignments 
thereof exist. That the said local agent did not call for any 
evidence of title to said securities, but relied on the oral rep- 
resentations of Sallade, made at the time he examined the 
same, that they belonged to the plaintiff and were held by 
him for her." 

After the examination of the securities by defendant's 
local agent at Fond du Lac and upon entering into an ar- 
rangement with Sallade for a joint control with Sallade over 
the safety deposit box containing the mortgages he held as se- 
curities for her, the defendant on January 10, 1911, deliv- 
ered to plaintiff, upon payment of $175 to it as premium, its 

« 

bond of indemnity against loss through larceny or embezzle- 
ment by Sallade as attorney in fact of the plaintiff. This 
bond covered the period of one year from January 10, 1911. 
Sallade died in August, 1911. 

» It appears that $14,119.41 of plaintiff's money was em- 
bezzled by Sallade after the bond was given and while it was 
in force. There is no dispute of the claim that Sallade had 
in fact dishonestly appropriated and embezzled a consider- 
able amount of plaintiff's property before September, 1910, 



11] JANUARY TERM, 1916. 6 

Whlnfleld t. Massachusetts Bonding ft Ins. Co. 162 Wis. 1. 

and that the lists of her securities he had made were false and 
incliided therein securities which did not belong to her estate, 
and a part of the securities he exhibited to her in September, 
1910, and to defendant's agent before the issuance of the 
bond, as her property, were the property of the Diocese of 
Fond du Lac. 

The bond contains the provisions that "upon the faith of 
said statement [employer's statement] • . . which employer 
hereby warrants to be true, it is hereby agreed and declared 
that subject to the provisions and conditions herein contained, 
which shall be conditions precedent to the right on the part 
of the employer to recover under this bond, ... If the em- 
ployer's written statement, hereinbefore referred to, shall be 
found in any respect untrue, this bond shall be void. . • • 
This bond is issued on the express understanding that the 
employee has not within the knowledge of the employer at 
any former period been a defaulter. . . ." 

The trial court held that the bond is a binding obligation 
and that there were no breaches thereof on the part of the 
plaintiff on account of any misstatements of fact in her writ- 
ten statement upon which the bond issued and which was 
made a part thereof. 

This is an appeal from a judgment awarding plaintiff re- 
covery against defendant for the amount of Sallade's defalca- 
tion to her during the time the bond was in force. 

For the appellant there was a brief by Quarles, Spence & 
QiULrles, counsel, and Irving A. Fish, of counsel, and oral ar- 
gmnent by Mr. Fish and Mr. T. L. Doyle. 

For the respondent there was a brief signed by Thomp- 
son, Thompson & Jackson, and oral argument by J. C. 
Thompson. 

The following opinion was filed October 26, 1915 : 

SiEBECKEB, J. The circuit court awarded recovery on the 
bond upon the ground that it was a binding contract made by 
the parties ; that its conditions and stipulations had not been 



6 SUPREME COURT OF WISCONSIN. [Jan. 

Whinfleld v. Massachusetts Bonding ft Ins. Co. 162 Wis. 1. 

breached by the plaintiff; and that plaintiff was entitled to 
be indemnified for the losses she sustained on account of 
Sallade's defalcations during the period of time it was in 
force. 

It is the contention of the defendant that it is not liable 
because the bond recites that the ^^employer's statement" in 
her written application for the bond is a part thereof; that 
the bond was issued in consideration of the premium paid 
and 'Spon the faith of the said statements as aforesaid, by 
the employer, which employer hereby warrants to be true," 
and that if these written statements of the plaintiff ''shall be 
foimd in any respect untrue, this bond shall be void." The 
question resolves itself to the proposition, Were the answers 
in the written statement, to the effect that Sallade's accounts 
were last examined by her personally the "last of September 
in 1910. Amount of securities, $159,831.61, as per list ex- 
amined and checked at that time, a copy of which is hereto 
attached," and that they were ". . . at that time in every 
respect correct, and proper securities and funds on hand to 
balance," and that there was not nor had there been at the 
time of the application any shortage in his accounts with her, 
and that he was not then in debt to her, express warranties } 
If these written statements which were made a part of the 
bond were agreed by the parties to be express warranties, 
then there can be no doubt, under the facts shown, that they 
were breached and plaintiff is barred of any recovery on the 
bond. We are of the opinion that the circuit court correctly 
held that these statements are not express warranties in this 
contract. In the law the contract is an insurance contract 
and its provisions must be construed in the light that provis- 
ions in insurance contracts are interpreted. As stated in the 
opinion of the court in American 8, Co. v, Pauly, 170 U. S. 
133, 144, 18 Sup. Ct 552: 

"If, looking at all its provisions, the bond is fairly and rea- 
sonably susceptible of two constructions, one favorable to the 



11] JANUARY TERM, 1916. 7 

Whinfleld t. Massachnsetta Bonding ft Ins. Co. 162 Wis. 1. 

bank and the other favorable to the Surety Company, the for- 
mer, if consistent with the objects for which the bond was 
given, must be adopted, and this for the reason that the in- 
strument which the court is invited to interpret was drawn 
by the attorneys, oflBcers, or agents of the Surety Company. 
This is a well established rule in the law of insurance. (Cit- 
ing.) . . . There is no sound reason why this rule should 
not be applied in the present case. The object of the bond 
in suit was to indemnify or insure the bank against loss aris- 
ing from any act of fraud or dishonesty. . . . That object 
should not be defeated by any narrow interpretation of its 
provisions, nor by adopting a construction favorable to the 
company, if there be another construction equally admissible 
under the terms of the instrument executed for the protection 
of the bank." 

This court, in dealing with a similar bond in the case of 
United Am. F. Ins, Co. v. American B. Co. 146 Wis. 573, 
131 N". W. 994, in speaking of the nature of the contract 
states: 

'^It has all the essential features of an insurance contract 
and should be subject to the rules of construction applicable 
to such contracts. (Citing.) It being apparent that the 
bond sued on was prepared by the defendant, as to any am- 
biguity therein the provisions, conditions, and exceptions of 
the bond which tend to work a forfeiture should be construed 
most strongly against the party preparing the contract." Cit- 
ing French v. Fidelity & C. Co. 135 Wis. 259, 265, 115 N. 
W. 869, and American 8. Co. v. Pauly, supra. 

In the case of First Nat. Bank v. U. 8. F. & 0. Co. 150 
Wis. 601, 137 N. W. 742, it is repeated that such a bond "has 
all the essential features of an insurance contract, and that it 
is not to be construed according to the rules of law applicable 
to the ordinary accommodation surety." (Citing. ) In Red- 
man V. HaHford F. Ins. Co. 47 Wis. 89, 1 N. W. 393, it is 
held that the use of the word "warranty'^ in stipulations does 
not control the construction, for the reason that parties may 
make representations vnthout employing the word "warrant" 



8 SUPKEME COUKT OF WISCONSIN. [Jan. 

Whinfleld v. Massachusetts Bonding & Ins. Co. 1G2 Wis. 1. 

which amount to warranties in law, and on the other hand 
the use of the word "warrant" may be no more than an agree- 
ment against false and fraudulent statements. 

The written statement furnished plaintiff by the company 
informed her that "The company desired to have answers to 
the following questions and that the answers will be taken as 
the basis of the bond if issued," and "it is agreed that the 
above answers are to be taken as conditions precedent and as 
the basis of the bond applied for. . . ." After having an- 
swered questions 13 and 14 that Sallade's accounts in Sep- 
tember, 1910, were in every respect correct as to amount and 
proper securities as per schedule attached, she is asked by 
question 17, "Have you any reason to know of or suspect any 
previous defalcation or shortage by the applicant, or any cir- 
cumstances tending to indicate that he is not a proper person 
to bond ? If so, give particulars," which plaintiff answered 
"No." The reasonable and natural inference from these 
questions is that the company demanded and plaintiff under- 
stood that she was undertaking to give to the company true 
and correct statements of fact to the best of her knowledge on 
the matters embraced in the questions. Looking at the con- 
tents of these written statements in connection with the pro- 
visions of the bond to the effect that any defaults of Sallnde 
committed prior to the giving of the bond were not to be in- 
demnified, and the provision "This bond is issued on the ex- 
press understanding that the employee has not, within the 
knowledge of the employer, at any former period been a de- 
faulter," the inference is reasonably clear and certain that 
the plaintiff understood that the company required of her as a 
condition precedent to the giving of the bond that she in good 
faith answer all the questions honestly and without conceal- 
ment These provisions of the statement and bond are out 
of harmony with the other provisions declaring that the state- 
ments of plaintiff are warranted by her to be true. Under 
these conditions of the transaction it is the well established 



11] JANUARY TERM, 1916. 9 

Whinfleld y. Massachusetts Bonding ft Ins. Co. 162 Wis. 1. 

rale that the etatements in the application will not be treated 
as warranties if the writings do not clearly show that sucli 
was the intent of the parties. Hart v. Niagara P. Ins. Co. 9 
Wash. 620, 38 Pac 213; Wheaton v. North British & M. 
Ins. Co. 76 Cal. 415, 13 Pac. 758; /Etna Ins. Co. v. Sim- 
mons, 49 Neb. 811, 69 N. W. 125; Legler v. U. 8. F. & G. 
Co. 88 Ohio St 336, 103 N. E. 897. The rule deduced from 
the authorities is stated as follows in voL 2 of Cooley's Briefs 
on the Law of Insurance, on page 1147 : "From these princi- 
ples we may deduce the rule that statements will not be re- 
garded as strict warranties, if qualified by other stipulations 
which by fair inference show a contrary intent." We con- 
sider that the provisions of the bond declaring plaintiff's an- 
swers in the written statement to be warranties are qualified 
by the above stipulations in the bond and written statement, 
and hence her answers are not to be held to be warranties but 
are to be regarded as representations. The circuit court 
found that the answers in the statement were truthfully and 
honestly made by the plaintiff and that she was not guilty of 
any fraudulent misrepresentation. 

We are of the opinion that the plaintiff is entitled to re- 
cover under the provisions of sec. 4202m^ Stats. 1913, which 
provides : 

"1. No oral or written statement, representation, or war- 
ranty made by the insured or in his behalf in the negotiation 
of a contract of insurance shall be deemed material or defeat 
or avoid the policy, or prevent its attaching unless such state- 
ment, representation, or warranty was false and made with 
actual intent to deceive or unless the matter misrepresented 
or made a warranty, increased the risk or contributed to the 
loss. 

"2. No warranty incorporated in a contract of insurance 
relating to any fact prior to a loss shall defeat or avoid such 
policy unless the breach of such warranty increased the risk 
at the time of the loss, or contributed to the loss, or unless 
such breach existed at the time of the loss." 



10 SUPKEME COURT OF WISCONSIN. [Jan. 

Whinfleld v. Massachusetts Bonding ft Ins. Co. 162 Wis. 1. 

This is a general law, and by section number the legislature 
made it a part of cL 176 of the statutes dealing with evi- 
dence, under the title ''Provisions common to actions and 
proceedings in all courts." This indicates a legislative intent 
that the act is to apply to all contracts of insurance. We 
have shown that the bond in question is, by adjudications of 
this and other courts, regarded as an insurance contract, and 
hence this statute applies to the contract here in question. 
Similar statutes of Kentucky and Tennessee have been held to 
apply to fidelity contracts. Warren D. Bank v. Fidelity & D. 
Co. 25 Ky. L. Rep. 289, 74 S. W 1111, and First Nat. Bank v. 
Fidelity & 0. Co. 110 Tenn. TO, 75 S. W. 1076. Under the 
provisions of sec. 4202m^ Statji. 1913, the statements of plaint- 
iff made by her to the written questions could not defeat the 
bond unless they were ''false and made with actual intent to 
deceive." The trial court has found that, thor^h the an- 
swers were not in fact true, the plaintiff honestly believed 
them to be true and she was not guilty of fraudulent misrep- 
resentation. An examination of the record has led us to the* 
conclusion that the evidence supports these findings of fact. 

The fact that some of the securities enumerated in the list 
attached to plaintiff's answer to question 13 were not in fact 
plaintiff's, and the answer was in fact untrue, did not, under 
the facts shown and found, increase the risk or contribute to 
the loss and avoid the contract, because the defendant did 
not rely on the written statement as to the correctness of the 
list of securities and Sallade's having them in his possession 
for the plaintiff. The court found that defendant refused to 
issue the bond on plaintiff's statement and required of its 
local agent, Boreham, to check up the list and securities in- 
ventoried in the list, and that it issued the bond to plaintiff 
upon its agent's report that the list of securities held by Sal- 
lade as plaintiff's property were in fact in Sallade's posses- 
sion, and that the list was correct, and that an arrangement 
for joint (K)ntrol of the safety deposit box and the securities 



11] JANUAEY TERM, 1916. 11 

Whinfleld ▼. Massachusetts Bonding ft Ins. Ck>. 162 Wis. 1. 

therein bad been made by defendant's local agent and Sallade. 
It appears that defendant's agent had the same information 
as the plaintiff as to the correctness and ownership of the 
listed securities exhibited by Sallade as plaintiff's property, 
and that defendant relied on its agent's information as the 
inducement of issuing the bond. Under the facts shown it is 
clear that the plaintiff's written statements did not form the 
basis of issuing the bond, and hence cannot be considered as 
misrepresentations or warranties which increased the risk, or 
as being relied on and therefore contributing to the loss. 
Under such circumstances the defendant cannot assert that 
the untrue statements, innocently made by plaintiff, consti- 
tute a forfeiture, because it acted on its own knowledge, and 
plaintiff's statements did not contribute to the loss as contem- 
plated by the statute governing the rights of the parties as to 
the alleged breaches of the contract. We are of the opinion 
that the trial court properly awarded judgment for the 
plaintiff. 
By the Court. — The judgment appealed from is affirmed. 

Wnr8ix>w, C. J., and TiMuir and Babnes, JJ., dissent 

A motion for a rehearing was submitted for the appellant 
on a brief by Quarles, 8 pence & Quarles, attorneys, and 7. A, 
Fish, of counsel, and for the respondent on a brief by Thomp- 
son, Thompson, Allen & Oruenewald, of counsel. 

The motion was denied, with $25 costs, on January 11, 
1916. 



12 SUPREME COURT OF WISCONSIN. [Jan. 

Flschbeck v. Mielenz, 162 Wis. 12. 
FiscHBECK^ Appellant, vs. Mielenz and others, Respondents. 

October 5, J9 15— January 11, 1916. 

JudgmenU: Betting aside after term: "Surprise:" Delay in entry: 
Mistakes: Correction: Jurisdiction: Validity of judgment: Con- 
struction: Interest. 

1. A valid judgment cannot be set aside after the term at which it is 

entered, except under sec. 2832, Stats., and the motion and order 
under that section must be made within one year after the mov- 
ing party had notice of the Judgment. 

2. A judgment entered by the clerk in pursuance of an order of court 

made on the same day must be regarded as a judgment of the 
court in session, and a motion to set it aside for irregularity 
must be made at the same term. 

3. The circuit court has no jurisdiction to review a Judgment ren- 

dered at a former term, for the purpose of correcting errors in 
law or fact committed by the court in rendering it or in the pro- 
ceedings prior thereto. 

4. Where judgment is entered after a full trial on the merits and 

pursuant to an order of the court, surprise at the decision of the 
court on the facts before it is not the kind of surprise for which 
sec. 2832, Stats., provides a remedy. 

5. A court is not authorized to set aside a final judgment more than 

three years after it was entered merely because there was a long 
delay in entering it. 

6. After the lapse of the term at which judgment is entered and the 

expiration of one year thereafter, the circuit court may correct 
a mistake in the entry of the Judgment so as to make it conform 
to the judgment actually pronounced by the court, but it cannot 
modify or amend the Judgment to make It conform to what the 
court ought .to have adjudged or even intended to adjudge. 

7. No power exists to set aside the whole of a judgment for the pur- 

pose of correcting a clerical error therein. 

8. An order of the circuit court setting aside the whole of a judg- 

ment entered three years before, for the purpose of correcting a 
clerical error therein, was a nullity, and a new judgment entered 
in lieu of the former one was absolutely void. 

9. Where by a judgment the amount of plaintiff's recovery was ad- 

judged to be a certain sum with interest from December 19, 
1898, and it was further adjudged that plaintiff have a lien on 
certain property to the extent of said sum and interest thereon 
from December 19, 1896, the lien could not be enforced for in- 
terest accruing before December 19, 1898. 



11] JANUARY TERM, 1916. 13 

Flschbeck y. Mielenz, 162 Wis. 12. 

Appkat. from a judgment and an order of the circuit court 
for Milwaukee county : Obben T. Williams, Circuit Judge. 
Dismissed. 

This case was before this court on a former appeal and is 
reported in 119 Wis. 27 (96 N. W. 426). The facts are quite 
fully stated in the report of the case, and it is only necessary 
here to state what occurred after the cause was remanded. 
The circuit court ordered a reference to hear, try, and deter- 
mine the issues which this court decided should be again 
tried. The referee filed his findings of fact and conclusions 
of law October 31, 1904, On December 3, 1904, appellant 
moved to amend such findings and conclusions in various par- 
ticulars and for judgment on the report as amended. The 
court permitted the respondent to offer additional evidence 
in the circuit court 

The referee found that the amount due and unpaid on the 
judgment was $1,209.33, with interest from December 19, 
1898. The court, on the evidence produced, reduced this 
sum to $1,155.73, and ordered that judgment be entered ac- 
cordingly with costs. This order was made December 31, 
1904. On April 5, 1905, another and more formal order for 
judgment was entered in the case. It differed from the first 
one in that it directed that the amount found due was a lien 
on the amount derived from the sale of the interest in the 
real estate referred to and formerly owned by Roth, and de- 
nied costs. It also allowed interest on the balance found due 
from August 28, 1896, when the original judgments were en- 
tered. Judgment was not entered, and on November 22, 
1906, appellant moved to dismiss respondent's claim for 
want of diligence and unreasonable neglect in failing to take 
judgment This motion was denied and the court ordered 
that judgment be entered on the findings forthwith. No fur- 
ther proceedings seem to have been taken until July 12, 1911, 
when respondent caused judgment to be entered on the orders 
referred to, without notice to the appellant, for $1,155.73 



14 SUPREME OOUET OF WISCONSIN. [Jan. 

Fischbeck y. Mielenz, 162 WiB. 12. 

with interest^ which sum was declared to be a lien on the 
fund derived from the sale on partition. Up to this point 
the proceedings were carried on before Judge TTat.sey, al- 
though the judgment was signed by the clerk. On July 25, 
1914, the appellant moved that the judgment be vacated and 
set aside for various reasons. This motion was made before 
Judge Williams, who held that a clerical error had been 
made in drawing the judgment, the error consisting in allow- 
ing interest from December 19, 1896, instead of from De- 
cember 19, 1898. This correction, if material, benefited the 
appellant. The court further directed the clerk to enter 
nunc pro tunc as of the 5th day of April, 1905, a final judg- 
ment on the issues raised in the cross-complaint of the de- 
fendant Olga Fischbeck against the defendant Albert E, Mie- 
lenz, in accordance with the findings and conclusions of the 
referee as modified by Judge Halsby. Judgment was ac- 
cordingly entered on December 5, 1914, in respondent's favor 
for $1,155.73, with interest from December 19, 1898, and 
decreeing that respondent was entitled to receive said sum 
out of the proceeds of the partition sale of the one-quarter in- 
terest in the real estate referred to, then in the hands of the 
clerk. The judgment of July 12, 1911, adjudged that on 
June 28, 1897, there was still due on the bank judgments 
$1,155.73 "and interest thereon from December 19, 1898." 
It was further adjudged that judgment of the bank, num- 
bered 16,048, stand and remain in force for $1,155.73, with 
interest thereon from December 19, 1898, and that said judg- 
ment be ordered satisfied except as to said sum. It was fur- 
ther adjudged that said sum with interest from December 19, 
1896, constituted a lien on the money derived from the sale 
or partition of the Eoth one-quarter interest in the real estate 
referred to in the former statement of facts. All of the other 
bank judgments were adjudged to be satisfied. This appeal 
is taken from the judgment entered December 5, 1914, and 
from the order permitting said judgment to be entered nunc 
pro tunc as of April 5, 1905. 



11] JANUARY TERM, 1916. 15 

Fischbeck y. Mielenz, 162 Wis. 12. 

For the appellant there were briefs by Fred'h W. v. Cotz- 
hausen, attorney, and Jos. L. O'Connor, of counsel, and oral 
aigument by Mr, O^Connor. 

For the respondents there was a brief signed by Lyman O. 
Wheeler, attorney for Mielenz, and Doerfier, Chreen & Benr 
der, attorneys for the executors, and oral argument by Mr. 
Wheeler and Mr. W. H. Bender. 

The following opinion was filed October 26, 1915 : 

Bask£S, J. It is the settled law of this state that a valid 
judgment cannot be set aside after the term at which it is en- 
tered, except under provisions of sec. 2832, Stats. And 
where relief is asked under this section, not only the motion 
but the order itself must be made within one year after the 
moving party has notice of the judgment Whitney v. Ear- 
ner, 44 Wis. 663 ; Edwards v. JanesvUle, 14 Wis. 26 ; Spaf- 
ford V. JanesvUle, 15 Wis, 474; Flanders v. Sherman, 18 
Wis. 575, 593 ; ^tna L. Ins. Co. v. McCormick, 20 Wis. 
265 ; HaHshom v. M. <& St. P. R. Co. 23 Wis. 692 ; Scheer v. 
Keown, 34 Wis. 349; Qitaw v. Ldmeraux, 36 Wis. 626; 
Knox V. Clifford, 41 Wis. 458 ; Hogan v. State, 36 Wis. 226; 
Blaclc V. Hurlhut, 73 Wis. 126, 40 N. W. 673 ; Zinc C. Co. 
V. First Nat. Bank, 103 Wis. 125, 138, 79 N. W. 229; Chal- 
loner v. Howard, 41 Wis. 355. 

In this latter case it is said that the rule does not militate 
against the power of a court to prevent the inequitable use of 
a judgment or to restrain the enforcement of a judgment ob- 
tained by fraud. 

A judgment of the clerk entered in pursuance of an order 
of court made on the same day must be regarded as a judg- 
ment of the court in session, and a motion to set it aside for 
irr^nlarity must be made at the same term. Pormann v. 
Frede, 72 Wis. 226, 39 N. W. 385. 

The circuit court has no jurisdiction to review a judgment 
rendered at a former term, for the purpose of correcting er- 
rors in law or fact committed by the court in rendering it or 



16 SUPREME COUET OF WISCONSIN. [Jan. 

FlBchbeck y. Mielenz, 162 Wis. 12. 

in the proceedings prior thereto. Van Dresar v. Coyle, 38 
Wis. 672 J Finger v. Vanclich, 36 Wis. 141; 2Etna L. Ins. 
Co. V. McCormich, 20 Wis. 265 ; Burning v. Burlehardt, 34 
Wis. 585; Bonnell v. Oray, 36 Wis. 674; Qiiaw v. Lameraux, 
36 Wis. 626; Emerson v. Huss, 127 Wis. 215, 223, 106 N. 
W. 518. 

In substance sec 2832, Stats., provides that the court may 
in its discretion, at any time within one year after notice 
thereof, relieve any party from a judgment against him 
through his mistake, inadvertence, surprise, or excusable neg- 
lect and may supply any omission in any proceedings; and 
whenever any proceeding taken by a party fails to conform in 
any respect to the provisions of law, the court may in like 
manner permit an amendment to such proceeding so as to 
make it conformable thereto. 

Manifestly the appellant's motion was not made, and in 
any event was not maintainable, under sec. 2832. The judg- 
ment was not entered because of any nfistake, inadvertence, 
or neglect of the appellant. It was entered after a full trial 
on the merits and pursuant to an order of the court. She 
may have been surprised at the decision of the court on the 
facts before it, but this is a surprise that falls to the lot of 
many litigants, and is not the kind of a surprise that the stat- 
ute provides a remedy for. The remedy, if there be one, is 
to appeal, and often the surprise is only augmented by the 
final decision. We know of no rule of law that would au- 
thorize a court to set aside a final judgment more than three 
years after it was entered simply because there was a long 
delay in entering it Either party might have caused judg- 
ment to be entered promptly and have taken an appeal from 
such judgment. While respondent secured some relief, he 
obtained only a small part of what he asked, and the decision 
was at least a partial victory for the appellant. Aside from 
the question of laches, the appellant sought to have the judg- 
ment set aside for errors of fact and law alleged to have oc- 



11] JANUAEY TERM, 1916. 17 

Fischbeck y. Mlelenz, 162 Wis. 12. 



curred during the trial and disposition of the casa This 
could not be done. 

After the lapse of the term at which judgment is entered 
and the expiration of one year thereafter, the circuit court 
may correct a mistake in the entry of the judgment so as to 
make it conform to the judgment actually pronounced by the 
court It cannot modify or amend the judgment to make it 
conform to what the court ought to have adjudged or even in- 
tended to adjudge. Williams v. Hayes, 68 Wis. 248, 32 N. 
W. 44; Hoffman v. State, 88 Wis. 166, 174, 59 N. W. 588; 
Packard v. Eimie Ave. H. Co. 105 Wis. 823, 325, 81 N. W. 
488 ; ^tna L. Ins. Co. v. McCormick, 20 Wis. 265, 268 ; 
Wai of Cole, 52 Wis. 591, 9 N. W. 664; Staie ex rel. Taylor 
V. Town Board, 69 Wis. 264, 34 N. W. 123 ; probably Wy- 
man v. Buckstaff, 24 Wis. 477, 479, although the statement 
of facts does not show the length of time that actually elapsed. 
The same is true of Burning v. Burkhardt, 34 Wis. 585, 588. 

The rule does not permit the setting aside of the judgment 
first entered and the entry of a new one, but only the correc- 
tion of it No power exists to set aside the whole judgment 
for the purpose of correcting a clerical error. The power to 
amend does not include the power to wipe out. It follows 
that Judge Williams had no power to set aside the 1911 
judgment or to enter a new one in lieu thereof, and that the 
order setting aside the former judgment is a nullity and the 
judgment entered in 1914 was absolutely void. Speaking of 
the effect to be given to a void judgment Mr. Freeman says : 

"A void judgment is, in legal effect, no judgment By it 
no rights are divested. From it no rights can be obtained. 
Being worthless in itself, all proceedings founded upon it arc 
equally worthless. It neither binds nor bars any one. All 
acts performed under it and all claims flowing out of it are 
void. The parties attempting to enforce it may be respon- 
sible as trespassers. The purchaser at a sale by virtue of its 
authority finds himself without title and without redress. 
The first and most material inquiry in relation to a judgment 
Vol. 162 — 2 



18 SUPEEME COUET OF WISCONSIN. [Jan. 

Fischbeck y. Mielenz, 162 Wis. 12. 

or decree, then, is in reference to its validity. For if it be 
null, no action upon the part of the plaintiff, no inaction upon 
the part of the defendant, no resulting equity in the hands 
of third persons, no power residing in any legislative or other 
department of the government, can invest it with any of the 
elements of power or of vitality. It does not terminate or 
discontinue the action in which it is entered, nor merge the 
cause of action ; and it therefore cannot prevent the plaintiff 
from proceeding to obtain a valid judgment upon the same 
cause, either in the action in which the void judgment was 
entered or in some other action." 1 Freeman, Judgments^ 
§ 117. 

And again : "A judgment pronounced by a tribunal having 
no authority to determine the matter in issue is necessarily 
and incurably void, and may be shown to be so in any collat- 
eral or other proceeding in which it is drawn in question.*' 
1 Freeman, Judgments, § 120. 

The rule has been stated just as strongly by this court: 

"If the court exceeded its jurisdiction of the subject mat- 
ter, then the judgment is no protection whatever. It may be 
ignored altogether. Peck v. School DisL 21 Wis, 516; 
Blodgett v. HUt, 29 Wis. 169; Damp v. Dane, 29 Wis. 419; 
Mathie v. Mcintosh, 40 Wis. 120; O'M alley v. FricJce, 104 
Wis. 280, 80 N. W. 436 ; Ilarrigan v. GUchrist, 121 Wis. 
127, 228, 99 K W. 909; Hughes v. Cuming, 165 N. Y. 91, 
58 N. E. 794 ; Cooper v. Reynolds, 77 U. S. 308. The rule 
is elementary, that if the matter dealt with by the judgment 
in this case was entirely outside of the court's jurisdiction, 
then, as said in the last case cited, the result was not merely 
erroneous and so, binding on all parties which the court had 
jurisdiction of, and their privies, till set aside in some of the 
ways appointed by law, not including collateral attack, but 
was a usurpation and, as said in Damp v. Dane, supra, the 
proceedings void in the broadest sense of the term." Will of 
Rice, 150 Wis. 401, 440, 441, 136 N. W. 956, 137 N. W. 
778. 

The judgment and order appealed from being mere nulli- 
ties, there is nothing to affirm or reverse. 

Judge Williams might have made an order correcting the 



11] JANUAKY TERM, 1916. 19 



Hlller T. Johnson, 162 Wis. 19. 



derical error in the 1911 judgment, and appellant no doubt 
could have such an order reviewed if aggrieved by it. But 
the appellant would not be aggrieved by such an order, be- 
<:aiise it would operate in her favor. There was no necessity 
for such an order, because respondent had filed a disclaimer 
in court of any interest prior to December 19, 1898, and 
under the recitals in the judgment it could only be enforced 
as to interest accruing after this date. Ciscel v. Wheatley^ 
27 Wis. 618. The amount of respondent's recovery was ad- 
judged to be $1,155.73, with interest from December 19, 
1898. The judgment then adjudges that respondent have a 
lien on the proceeds of the sale of the land ^% the extent of 
said sum of $1,155.73 and interest on said amount from the 
19th day of December, 1896.*' It is quite obvious that, un- 
der these two apparently conflicting clauses, the lien of the 
judgment could not be enforced for a greater sum than was 
adjudged to be due. 
By the Court. — ^Appeal dismissed. 

• 

A motion for a rehearing was denied, with $25 costs, on 
January 11, 1916. 



Hnj.TER, Bespondent, vs. Johnson and others, Beceivers, 

etc.. Appellants. 

October as, 1915— January lU 1916, 

Street raUvHive: Injury to passenger hoarding car: Degree of care re- 
Quired: Ineiructione to jury: Experiments "before jury as to ex- 
tent of injury: Husband and wife: Competency as uHtnesses 
after divorce judgment: Excessive damages. 

1. The degree of care which those operating an interurban railway 
are bound to exercise towards passengers about to board a car is 
the utmost or highest degree of care that the ordinarily prudent 
man would exercise under similar circumstances, consistent 
with such mode of transportatioii. 



20 SUPREME COURT OF WISCONSIN. [Jan. 

HlUer y. Johnaon, 162 Wis. 19. 

2. In an action for personal injuries alleged to have been sustained 

through the negligent starting of an interurban car as plaintiff 
was attempting to board it, an instruction as to the care which 
defendants were bound to exercise towards passengers about to- 
board a car was not erroneous on the ground that it assumed 
that plaintiff was a passenger, where it was giyen with refer- 
ence to a question in the special verdict which the jury were to 
answer only in case they found, in answer to previous questions, 
facts which constituted plaintiff a passenger, viz. that the car 
was standing still when he attempted to board it, and that de- 
fendants' servants started it while he was in the act of board- 
ing it. 

3. Jurors may use their ears as well as their eyes in ascertaining 

the extent or nature of alleged injuries when no expert knowl- 
edge is necessary to do so ; and trial courts must be given a wide 
discretion in determining just how far experiments before a 
jury may be carried. 

4. Thus, where plaintiff alleged an injury to his shoulder joint, it 

was not error to permit him to move his arm up and down be* 
fore the jury for the purpose of demonstrating to them that 
crepitation resulted, evidencing an injured and imperfect joint; 
nor for his counsel to ask the jury if they heard the sound. 

5. Under sec. 2374, Stats., providing in substance that a judgment 

of divorce shall not affect the status of the. parties until one 
year after its entry, a divorced wife is not a competent witness 
to testify for or against her husband until after the expiration 
of the year. 

6. An award of $960 for injuries to the knee, shoulder, and side of 

the face of a man, caused by the negligent starting of an inter- 
urban car as he attempted to board it, is held not so large as to 
evidence prejudice or passion on the part of the jury. 

Appeal from a judgment of the circuit court for Milwau- 
kee county: Orren T. Williams, Circuit Judge. Affirmed. 

Action to recover damages for personal injuries sustained 
May 10, 1914, while attempting to board one of defendants' 
cars at the intersection of Fifth and Clybourn streets in the 
city of Milwaukee. Plaintiff claims that the car stopped at 
the usual stopping place ; that one or more persons boarded it 
before he attempted to do so; that the car was standing still 
and the door was open when he attempted to get on. He 
says he took hold of both handles, put his left foot on the 



11] JANUARY TERM, 1916. 21 

Hiller v. Johnson, 162 Wis. 19. 

step of the car, and was in that position when the car sud- 
denly started ; that he could not get his right foot on the step ; 
that the speed of the car hurt his foot in the position he was, 
and that after it had run about forty feet he was compelled 
to let go ; fell and hurt his right knee, left shoulder, and the 
right side of the face. The negligence charged in the com- 
plaint and sought to be sustained by proof was that the car 
was suddenly started without warning while plaintiff was in 
the act of boarding it as a passenger. 

The action was begun and tried in the civil court and the 
jury found (1) that the plaintiff was injured while attempt- 
ing to board one of defendants' cars (answered by the court) ; 
(2) that the door of defendants' car was open at the time he 
attempted to board it; (3) that it was then standing still; 
(4) that defendants' servants in charge of the car started it 
while he was in the act of boarding it; (5) that defendants 
were guilty of a want of ordinary care in so starting the car ; 
(6) that such starting was the proximate cause of plaintiff's 
injury; (7) that plaintiff was not guilty of any want of or- 
dinary care that proximately contributed to his injury; and 
(8) damages in the sum of $960. Judgment for plaintiff 
was entered and the defendants appealed to the circuit court, 
where the judgment of the civil court was affirmed. From 
such judgment of affirmance the defendants appealed. 

For the appellants there was a brief by Edgar L, Wood, at- 
torney, and Bull <& Johnson, of counsel, and oral argument 
bv Mr. Wood. 

For the respondent there was a brief by Tibbs, Foster & 
Schroeder, attorneys, and A. W. Foster, of counsel, and oral 
argument by il. W. Foster and H. B, Walmsley. 

The following opinion was filed November 16, 1915 : 

ViNJE, J. It is claimed that the instruction under the 
fifth question to the effect that the care imposed upon defend- 
ants towards passengers about to board a car was the utmost 



22 SUPREME COURT OF WISCONSIN. [Jan. 

Hiller T. Johnson, 162 Wis. 19. 

or highest degree of care that the ordinarily prudent man 
would exercise under similar circumstances, consistent with 
such mode of transportation, was erroneous because it as* 
Slimed that plaintiff was a passenger. Question number 5 
read : "If you answer question 4 'Yes/ then you may answer 
-question 5. Was the defendant guilty of a want of ordinary 
care in so starting the car?" By its terms question 4 re- 
quired an answer only in event question 3 was answered in 
the affirmative. Question 3 read: '^as the car standing 
still when plaintiff attempted to board it V Hence the jury 
were told to answer question 5 only in the event they found 
the car was standing still while plaintiff attempted to board 
it and that defendants' servants in charge of the car started 
it while he was in the act of boarding it. In other words, 
they were to answer question 5, relative to the duty of de- 
fendants to passengers, only in the event they found facts 
which constituted plaintiff a passenger. There was no as- 
sumption of that fact by the court. The jury were required 
to find it, and in the event they found it the duty of defend- 
ants to plaintiff as a passenger was stated to them. 

The argument that this court should follow the rule laid 
down by the New York court in McGrell v. Buffalo 0. B, Co. 
153 N. Y. 265, 47 N. E. 305, and Stierle v. Union R. Co. 
156 N. Y. 70, 50 N. E. 419, to the effect that the carrier owes 
passengers the highest degree of care only in respect to road- 
bed, appliances, and cars and not as to operation, is neutral- 
ized by the fact that the first case did not so hold, and the 
second case, though lending color to the claim, was expressly 
stated in the opinion for a rehearing not to so hold (Id. 684) ; 
and in Koehne v. N. Y. & Q. C. R. Co. 165 K. Y. 603, 58 
N. E. 1089; 8. C. 32 App. Div. 419, 52 N. Y. Supp. 1085, 
it was again reiterated that no such doctrine was laid down 
in the Stierle Case. 

Plaintiff claimed an injury to his shoulder joint, and he 
was permitted over the objections of defendants to raise his 



11] JANUARY TERM, 1916.. 23 

HiUer y. Johnson, 162 Wis. 19. 

arm up and down before the jury for the purpose of demon- 
strating to them that crepitation resulted, evidencing an in- 
jured or imperfect joint While so doing the following oc- 
curred : Plaintiff's counsel to a juror : "Do you hear that V^ 
Juror: "There is a slight noise there." Plaintiff's counsel 
to another juror : "Put your ear to Iiis arm." Juror: "Yes.'^ 
Plaintiff's counsel to the jury: "Do you hear it?" Jury: 
"Yes." This, in view of the amount of damages assessed, is 
claimed to have been prejudicial error. We see no reason 
why jurors may not use their ears as well as their eyes in as- 
certaining the extent or nature of alleged injuries where, as 
here, no expert knowledge is necessary to do so. Trial courts 
must be given a wide discretion in determining just how far 
experiments before a jury may be carried. Where they do 
not border upon the unseemly or are not palpably misleading 
or otherwise improper, this court will not criticise them, 
much less pronounce them prejudicially erroneous. Justice 
will be promoted rather than thwarted by a little loosening 
of the strait-jacket in which trial courts have found them- 
selves in the past That they will meet the added freedom 
with commensurate care and wisdom may be confidently ex- 
pected. 

It appears that a couple of weeks before the trial a divorce 
was granted by a court of this state between plaintiff and 
his wife. The defendants called her to testify to the circum- 
stances of plaintiff's returning to Kenosha, his home, upon 
the day of the accident Plaintiff objected on the ground 
that the witness was still his wife and therefore incompetent 
to testify for or against him. The objection was sustained 
because under sec 2374, Stats. 1913, in force at the time the 
decree was entered, the decree of divorce did not, for one 
year following its entry, affect the status of the parties. 
The ruling was correct. Sec. 2374 provides: "When a judg- 
ment of divorce from the bonds of matrimony is granted in 
this state by a court, such judgment, so far as it determines 



24 SUPREME COURT OF WISCONSIN. [Jaw. 

Hiller v. Johnson, 162 Wis. 19. 

the status of the parties, shall not be effective, except for the 
purpose of an appeal to review the same, until the expiration 
of one year from the date of the entry of such judgment," 
and it is made the duty of the court to so inform the parties 
appearing in court. Mrs. Hiller at the time of the trial for 
all purposes of giving testimony was still the wife of the 
plaintiff notwithstanding the decree of divorce had been en- 
tered a few weeks previously. Cases decided under former 
statutes where the judgment became absolute from the date 
of its entry can have no bearing upon the question here pre- 
sented. Nor does the fact that this court in Rogers v. Hoi- 
lister, 156 Wis. 517, 146 N. W. 488, held that the word 
^^husband" as used in a will did not mean a husband from 
whom the testatrix had been divorced under this statute with- 
in a year, militate against the conclusion here reached. In 
that case the court sought to reach the meaning given the 
word in a will where the testatrix made a bequest to him if 
he was her husband at the time of her decease. The question 
there was not to ascertain the technical legal meaning of the 
word, but the meaning in which the testatrix used it. 

The damages awarded do not appear to be so great as to 
evince prejudice or passion on the part of the jury. They 
have been approved by the trial court and we cannot say that 
such approval was error. 

By the Court. — Judgment affirmed. 

A motion for a rehearing was denied, with $25 costs, on 
January 11, 1916. 



11] JANUARY TERM, 1916, 2S 



Foley y. Marach, 162 Wis. 26. 



Foley, Respondent, vs. Mabsoh, Appellant 

October 29, 1915— January 11, 1916. 

Contracts: Statute of frauds: Possible performance uHthin a year: 
Modification by oral agreement: Prior breach: Counterclaim: 
Mutuality: Rental value of appliances: Special verdict: Cer- 
tainty in finding: Instructions to jury: Appeal: Harmless errors. 

■ 

1. An agreement Is not within sub. (1), sec. 2307, Stats. 1913, If by 
Its terms It may be performed within one year from the making 
thereof. 

1 Where a written contract was not required by the statute of 
frauds to be In writing. Its terms might be modified, after It had 
taken effect, by oral agreement, without any new consideration. 

3. Where by oral modification of a written contract for the perform- 

ance of certain work defend|uit had agreed to pay plaintiff the 
full reasonable value of all work done by the latter, there re- 
mained no basis for a counterclaim for breach by plaintiff of 
the original contract, and the question whether that contract 
was so lacking In mutuality that there could be no counter- 
claim thereon Is Immaterial. 

4. Under the eyldence in this case, tending to show, among other 

things, that the parties did not contemplate that full rental 
value should be charged for a steam shovel and other appliances 
furnished by defendant for use by plaintiff In doing railroad 
construction work as a subcontractor of defendant, that the 
shovel was old and worn, and that some of the other appliances 
could not be used for the work. It Is held that the Jury were 
properly Instructed that the reasonable value of the use plalntllEf 
had of the appliances In doing the work might be allowed to de- 
fendant, and that defendant was not entitled to a peremptory 
Instruction directing the jury to allow the rental value of the 
appliances at the amount fixed by defendant's opinion evidence. 

5. Where the evidence permitted only the Inference that a contract 

was modified. If at all, on July 5th, a finding in a special verdict 
that It was modified "on or about July 5th" was not fatally In- 
definite or uncertain. It must be presumed that the Jury agreed 
on their answer and based it on the evidence. 

6. Where the answers to certain questions in a special verdict en- 

title plaintiff to Judgment without regard to the answer to an- 
other question, any alleged error in the instruction with respect 
to such other question is wholly immaterial. 



26 SUPREME COURT OF WISCONSIN. [Jan. 



Foley ▼. Marsch, 162 Wis. 25. 



Appeal from a judgment of the circuit court for Milwau- 
kee county: Chester A. Fowleb, Judge. Affirmed. 

This is an action to recover on an alleged agreement made 
by an oral modification of a written contract entered into be- 
tween the defendant, as the principal grading contractor for 
the Milwaukee, Sparta & Northwestern Railroad, and the 
plaintiff as a subcontractor. 

The defendant, Marsch, is a general railroad contractor 
and in December, 1909, contracted with the Milwaukee, 
Sparta & Northwestern Railroad to construct about fifty- 
three miles of new railroad between the city of Milwaukee 
and Clyman Junction in this state. The contract was for 
the complete construction of the road from grading to track 
laying and ballasting. In March, 1910, the plaintiff nego- 
tiated with defendant to subcontract for some of the construc- 
tion work covered by defendant's contract with the railroad 
company. In company with defendant's superintendent 
plaintiff drove along roads parallel to the proposed railroad 
right of way, and at various places walked over and examined 
the character of the ground and material in connection with 
the engineer's profile of the proposed road, showing cuts and 
fills and engineers' estimates of quantities of material to be 
moved and classification of the material in earth, rock, and 
loose rock, etc., and the estimated quantities of each. About 
March 21, 1910, plaintiff and defendant made a preliminary 
agreement by which plaintiff was to undertake as defendant's 
subcontractor to do a part of the work, stating the amount of 
work by station numbers specified in Marsch' 8 contract with 
the railroad company and fixing the price of the work. On 
April 5, 1910, plaintiff and defendant signed a written con- 
tract containing the terms and conditions on which plaintiff 
undertook the work, a description thereof, together with the 
prices plaintiff was to receive for the different parts of the 
work, and referring to the principal contract between defend- 
ant and the railroad company. It was required by the 
plaintiff's contract that the work of construction assumed by 



11] JANUARY TERM, 1916. 27 

Foley T. Marsch, 162 Wis. 26. 

him be done in Accordance with the specifications of the rail- 
road company under the principal contract with Marsch and 
to the satisfaction of the railroad company's chief engineer^ 
whose classification, measurements, and calculations respect- 
ing boundaries of excavations were to be final and conclusive. 
The contract also provided ^'that the said work shall be begun 
by the said contractor on or before the 10th of April, 1910^ 
and shall be completed as follows: Sta. 1914 to Sta. 1990^ 
July 31, 1911, and Sta. 1990 to Sta. 2300 and *YV on or 
before November 1, 1910, time of commencement, comple- 
tion, and rate of progress being of the essence of this con- 
tract." The contract also contains the following: 

"It is further agreed that the said principal shall have the 
fight to cancel and terminate this contract at any time with 
or without notice to the contractor, without liability by the 
principal for damages therefor, and thereupon any amount, 
then unpaid for work theretofore done by said contractor at 
the prices herein provided, shall be paid upon the estimate of 
said chief engineer, showing quantity of work done to the 
date of such canceling of this agreement, and upon such pay- 
ment being made or tendered, all liability of the principal 
under this contract shall cease and determine, and in no case 
shall the principal be held further nor otherwise than herein 
stated, nor shall any claim for prospective profits on the work 
not done be made, allowed, or paid for. Upon the cancella- 
tion of this contract for any cause, the said contractor hereby 
agrees to immediately relinquish possession of such work and 
of the materials procured therefor by the contractor and place 
the same in the hands of the said principal, in such a manner 
as will enable him to complete the work without hindrance or 
delay, and said principal shall have the right to re-enter, ex- 
pel, and remove therefrom the said second party or any per- 
son or persons acting in his behalf, using such force and 
means as may be considered by him necessary for the pur- 
pose, without any claim on the part of the contractor for dam- 
ages therefor in any way." 

Plaintiff moved onto the work in April and began the 
grading work in May. He secured Dugan & Naylon as sub- 



28 SUPREME COURT OF WISCONSIN. [Jan. 

Foley v. Marsch, 162 Wis. 25. 

contractors to do a part of the worL Duriilg the months of 
May and June the work progressed slowly. The plaintiff 
testified that in the latter part of June he discovered that he 
could not perform the work at the contract price, and on 
July 5, 1910, called on the defendant at his office in the city 
of Milwaukee and stated to him that he could not perform 
his contract in view of the material he encountered which re- 
quired removal and for want of financial means and a proper 
outfit to do the work, and that according to the engineer's es- 
timate of the work done he had lost $2,500 and that he 
wanted to give it up and stand his losses to date. He also 
testified that the defendant then and there told him that if he 
would complete the work he and Dugan & Naylon had started 
defendant would supply him with a steam shovel, ties, cars, 
and rails free of charge and would pay him what this work 
was worth and would guarantee plaintiff against loss; and 
that relying on this promise of defendant he went back to 
Clyman and continued the work that he had begun and the 
work that Dugan & Naylon had begun ; that Marsch sent him 
a steam shovel to use in his work July 25th and later the ties, 
rails, and cars. Plaintiff continued on the job and com- 
pleted this work by June 1, 1911. The defendant denies 
that the plaintiff had this alleged interview with him or any 
conversation at any time to this effect as claimed by plaintiff, 
and denies every alleged modification of the original written 
contract with the plaintiff. 

The court submitted this issue between the parties to a 
jury, who found by special verdict that plaintiff and defend- 
ant on or about July 5, 1910, agreed that plaintiff was to 
complete the work he and his subcontractors were then on and 
that defendant would pay plaintiff what such work was rea- 
sonably worth, and that defendant guarantied plaintiff 
against loss in doing this work, and that this modified agree- 
ment applied to the entire work that plaintiff did on the job. 
The jury also found that the reasonable value of plaintiff's 



llj JANUARY TERM, 1916. 29 



Foley y. Marach, 162 Wis. 25. 



work was forty cents per yard; that the entire amount of 
plaintiffs work amounted to $47,608; and that the reason- 
able value of the use to plaintiff in doing his work of the 
dteam shovel and other equipment furnished by defendant 
.amounted to $1,220. 

The court directed judgment in plaintiff's favor for the 
balance due plaintiff for the work done after allowing de- 
fendant credit for payments made on account and the $1,220, 
the value of the use of defendant's implements by the plaint- 
iff, amounting to $18,531.73, with interest from October 26, 
1911, and plaintiffs costs and disbursements, making a total 
of $22,129.26. From such judgment this appeal is taken. 

For the appellant there was a brief by Miller, Mack <& 
FairchUd, attorneys, and Louis E. Hart, of counsel, and oral 
argument by Mr. James B. Blake and Mr. Hart. 

For the respondent there was a brief by Flanders, Botfum, 
Fawsett & Bottum, and oral argument by C. F. Fawsett. 

The following opinion was filed November 16, 1915 : 

SiEBECKEB, J. 1. It is contended that the court erred in 
admitting parol evidence tending to show that the original 
written agreement between plaintiff and defendant had been 
modified by an oral contract on July 6, 1910, as alleged by 
the plaintiff. It is claimed that the original agreement was 
one within the statute of frauds, sec. 2307, Stats. 1913, pro- 
viding that "Every agreement that by its terms is not to be 
performed within one year from the making thereof' shall 
be void unless in writing. In the early case of White v, 
Hanchett, 21 Wis. 415, 416, it was declared, "The contract 
to be within the statute must be such that it cannot be per- 
formed within a year." In Conway v. Mitchell, 97 Wis. 
290, 298, 72 N. W. 752, this court refers to the adjudications 
on this subject and declares: "Of course, it is well settled 
that if an agreement, by its terms, may be performed within 
a year from the time it is made, then it is not within the stat- 



30 SUPREME COURT OF WISC6nSIN. [Jan. 



Foley y. Marsch, 162 Wis. 25. 



uta" The trial court held that under the terms of the origi* 
nal contract the entire work might have been completed be- 
fore the expiration of a year from the making thereof. We 
find nothing in the contract at variance with this interpreta- 
tion of the contract. The understanding and intention of 
the parties as shown by its contents clearly harmonize with 
the idea that the contract could be fully executed within a 
year from its date. The contract must therefore be treated 
as not within the statute of frauds. Under these facts of the 
case the trial court properly received parol evidence tending 
to show that the parties at the time alleged made an agree- 
ment which modified the written contract The parties to 
the contract could by mutual agreement modify it without 
any new consideration. Schoblasky v. Rayworth, 139 Wis.. 
115, 120 N. W. 822, and cases cited. 

2. It is claimed that the evidence does not permit of the 
inference that the plaintiff and defendant agreed to a modifica- 
tion of the original contract, as found by the jury in re- 
sponse to questions 1 and 2 of the special verdict An ex- 
amination of the record satisfactorily shows that the favor- 
able inferences from plaintiff's evidence sustain the findings 
of the jury. The evidence being in conflict on the subject, 
the court properly submitted the issue to the jury and their 
finding cannot be disturbed. 

3. In the light of these findings and that the original con- 
tract is not one within the statute of frauds, the question, 
whether or not the contract lacks mutuality need not be con- 
sidered. Under the findings of the jury that by the modified 
oral agreement defendant agreed to pay plaintiff the full 
reasonable value of all the work done on the job, there re- 
mained no basis for any counterclaim for breach of the origi- 
nal contract and hence no error was committed in refusing 
to receive evidence on this subject 

4. it is argued that the court erred in its instruction in con- 
nection with question No. 5, finding the reasonable value of 



11] JANUARY TERM, 1916. 81 

Foley Y. Marsch, 162 Wis. 25. 

the use by plaintiff of defendant's steam shovel and other ap- 
pliances. There is evidence by the plaintiff that defendant 
offered him the use of his implements free of charge, and 
that the shovel was somewhat old, and that the wagons could 
not be used in doing the work. Defendant offered evidence 
to the effect that the rental value of his appliances was the 
proper and only basis of the reasonable value of their use 
and gave the amounts thereof based on the property value of 
the articles furnished, and claimed the rental value for the 
time he asserts the articles were in plaintiff's possession. 
The court held that the jury was not bound by the defendant's 
opinion evidence as to rental value and that they might reject 
it in view of plaintiff's evidence that defendant agreed to fur- 
nish part of them free of charge and of the worn condition 
of the shovel, and that under the facts and circumstances the 
jury was justified in believing that the parties did not con- 
template a rental value charge should be made, but that the 
reasonable value of the use the plaintiff had of them in doing 
his work might be allowed, and instructed the jury accord- 
ingly. We consider that the court's conclusion and instruc- 
tion to this effect were proper and correct under the facts 
and circumstances of the case, and that the defendant was not 
-entitled to a peremptory instruction directing the jury to al- 
low defendant the rental value of the appliances furnished 
plaintiff and that they must allow the amount fixed by the 
defendant's evidence. 

5. It is argued that the phrase "on or about July 5th" in 
questions 1 and 2 of the verdict renders the verdict so indefi- 
nite and uncertain that it cannot be said that the jury have 
to a certainty determined the issue involved in these ques- 
tions. We do not find this form of framing the questions 
ambiguous or indefinite. The questions and answers give a 
clear and certain finding that the parties made the alleged 
modification agreement on or about July 5th. It must be 
presumed that the jury agreed on their answers and that they 



32 SUPREME COURT OF WISCONSIN. [Jan. 



Weston Y. Dahl, 162 Wis. 82. 



based their answers on the evidence, which permitted only of 
the inference that the contract was modified July 5th or not 
at alL The jury found it was so modified. 

6. An exception to the instruction given in connection 
with the sixth question of the verdict is urged upon our atten- 
tion. The judgment rests upon the first, third, fourth, and 
fifth findings of the verdict The answers to these questions 
entitle the plaintiff to recover without r^ard to the finding 
made in response to question 6. The result is that the issue 
covered by the sixth question and answer is wholly imma- 
terial in determining the rights of the parties and any al- 
lied error in respect thereto could not operate to defendant's 
prejudice, and hence the exception need not be considered. 

7. We have examined the exceptions to the rulings of the 
court in permitting amendments of the complaint and to the 
rulings upon rejection of evidence oflFered by defendant and 
are satisfied that no prejudicial error was committed by the 
court in making these rulings. 

There is no reversible error in the record, and the court 
properly awarded judgment on the verdict 

By the Court. — The judgment appealed from is affirmed. 

A motion for a rehearing was denied, with $25 costs, on 
January 11, 1916. 



Weston, Respondent, vs. Dahl and others, Appellants. 

November i7, 1915— January 11, 1916, 

Corporations: Stock auhacriptions : Cancellation: Evidence: Increase 
of capital stock: Insufficient subscriptions: Personal liaMlity 
for debts: Amendment of articles: Record: Certificate of register 
of deeds: Authentication: Oral promise not a subscription: AS' 
signability of claims: Lost note: Bond of indemnity. 

1. The three organisers of a corporation sabscrlbed for all of Its 
capital stock — 100 shares. Stock certificates were made out ac- 
cordingly, but were never severed from the book, and across the 



11] JANUAKY TERM, 1916. 33 

. Weston y. Dahl, 162 Wis. 32. 

face of each certificate and its stub the words "Void, reissued,'* 
were written in red ink. There was no other corporate record 
of such cancellation. The following stubs showed that on the 
day of the subscription above mentioned fifty-one shares were 
issued to two of said subscribers. Afterwards other shares were 
issued, so that, prior to an increase of the capital stock to 260 
shares, ninety-six shares in all had been issued. After such in- 
crease fourteen more shares were issued, making 110 in all. In 
an action under sec. 1774n, Stats. 1913, to enforce a personal lia- 
bility of the officers and stockholders for debts incurred by the 
corporation, the evidence, including the uncontradicted testi- 
mony of the secretary — one of the original incorporators — that 
only 110 shares in all were ever subscribed for in writing, is held 
to sustain a finding by the trial court that the original subscrip- 
tions of 100 shares were in fact canceled and that, to the knowl- 
edge of the defendants, less than one half of the increased stock 
of the corporation had been subscribed for at the time the debts 
in question were incurred. 

1 A copy, certified by the secretary of state, of his record of an 
amendment increasing the capital stock of a corporation duly 
authenticates for admission in evidence the attached certificate 
of the register of deeds which, by sec. 1774, Stats., must be filed 
with the secretary of state before he can issue the certificate of 
amendment 

3. Oral promises to take shares of stock in a corporation are not 
subscriptions and, under sec. 2308, Stats., cannot be enforced 
where the value of the stock exceeds $50. 

1 Sec 1774n, Stats., — making' the ofllcers and stockholders of a cor- 
poration personally liable for debts contracted by it with their 
consent, while having knowledge that less than one half ot the 
authorized capital stock has been subscribed or less than twenty 
per cent, thereof paid in, — creates a primary absolute liability 
at the time the debts are incurred, thereby imposing a con- 
tractual relation upon the stockholders instead of a penalty; 
and claims arising under it are assignable. Killen v. Barnes, 
106 Wis. 546, distinguished. 

5. Where a note given by a corporation for goods purchased was 
lost, recovery of the amount due thereon could not be had under 
sec. 1774n, Stats., against ofllcers or stockholders of the corpora- 
tion, unless plaintiff gave a bond of indemnity as provided by 
sees. 4190, 4191, Stats. 1913. 

Appeal from a judgment of the circuit court for Milwau- 
kee county: W. J. Tukner, Circuit Judge. Modified and 

affirmed. 

Vol. 162 — 3 



34 SUPREME COURT OF WISCONSIN. [Jan. 

Weston V. Dahl, 162 Wis. 32. 

Action under sec. 1774n, Stats. 1913, to enforce liability 
against defendants as officers and stockholders of the Ideal 
Light Company, a bankrupt corporation, for debts incurred 
by it with their consent and with the knowledge of the fact 
that less than one half of the increased capital stock of the 
corporation had been subscribed. Sixteen claims aggregat- 
ing $1,472.11, upon which there had been paid as a dividend 
$224.04, had been assigned to plaintiff. The action was be- 
gun in the civil court and by consent tried without a jury. 
The court found the statutory facts showing liability on the 
part of the defendants and rendered judgment against them 
in the sum of $1,381.94 damages and costs. The circuit 
court upon an appeal by the defendants affirmed the judg- 
ment of the civil court, and from such judgment of affirm- 
ance the defendants appealed to this court. 

For the appellants there was a brief by Stuart H. Mark- 
ham and Morris & Canright, and oral argument by Charles 
M. Morris. 

For the respondent there was a brief by Alexander <6 
Burhe, and oral argument by Fred W. Barton. 

ViNJE, J. The contentions of defendants that the capital 
stock of the corporation had not been increased from $10,000 
to $25,000; that if it had, then more than fifty per. cent, 
thereof had been subscribed ; and that the guilty knowledge 
on their part requisite to their liability is wanting, were 
found against them by the trial court upon sufficient evidence 
to sustain the findings. 

Only one or two claims relative thereto need be briefly 
treated. On December 15, 1910, Albert 8. DM subscribed 
for 75 shares, Erwin J. Spaar for 24 shares, and Fred W. 
Mueller for 1 share. These three men were the organizers 
and president, secretary, and vice-president, respectively, of 
the corporation. Its capital stock at that time was $10,000, 
divided into 100 shares of $100 eacL The whole stock was 



11] JANUARY TERM, 1916. 35 

Weston Y. Dahl, 162 Wis. 32. 

subscribed for by these three officers. The stock certificate 
book shows the certificates made out as per subscriptions, but 
thev were never severed from the book. Across the face of 
each as well as on each stub of the book appear the words, 
written in red ink, "Void, reissued.*' Then follow stubs of 
certificates showing that on December 15, 1910, Dahl had 29 
shares issued to him, Spaar 22, and later certificates of stock 
were issued as follows: December 30, 1910, Dahl 3; Janu- 
ary 9, 1911, Spaar 5; January 30, 1911, Dahl 2; March 4, 

1911, Dahl 1; March 14, 1911, Dahl 3; March 20, 1911, 
Dahl 1; March 27, 1911, Dahl 2; April 8, 1911, Dahl 1; 
February 6, 1911, Spaar 2; February 11, 1911, Mueller 5; 
August 3-, 1911, Anna Rupp 4; August 14, 1911, Oscar 
Fleischer 10; December 8, 1911, Mueller 5; March 4, 1912, 
Dahl 1. These are all the certificates issued up to April 3, 

1912, when an increase in capital stock to $25,000, consisting 
of 250 shares of $100 each, was voted. On that date stock 
had been issued as follows : Dahl 43 shares ; Spaar 29 shares ; 
Mueller 10 shares; Rupp 4 shares; and Fleischer 10 shares, 
making 96 shares in all out of the 100 shares. Later, after 
the increase of the capital stock, 10 shares were issued to 
Dahl and 4 shares to Spaar, making 110 shares in all, the 
number the trial court found had been subscribed for. 

Defendants claim that their subscriptions of 75 shares, 
24 shares, and 1 share, respectively, made by them on De- 
cember 15, 1910, should be counted. This claim is nega- 
tived (1) by the fact that the certificates therefor are marked 
void and were never issued; (2) by the fact that if such 
original subscriptions were not canceled there was an over- 
subscription of twenty-eight shares long before the capital 
stock was increased or before there was any idea of increasing 
it, 80 far as the record discloses; and (3) by the fact that the 
secretary, Mr. Spaar, testified that only 110 shares in all 
were ever subscribed for in writing, including the 14 shares 
issued after the increase of capital stock ; that a list for fur- 



36 SUPREME COURT OF WISCONSIN. [Jax. 

Weston V. Dahl, 162 Wis. 32. 

ther subscriptions was started but nobody signed it It 
seems quite evident that the trial court was justified in find- 
ing that the original subscriptions of 100 shares were in fact 
canceled, though there is no corporate action to that eflFeet 
shown upon the records of the corporation except the recital 
in the certificate book. There is nothing to contradict such 
recital. On the contrary, subsequent corporate acts confirm 
its accuracy. It must be borne in mind that at the time of 
this cancellation the three defendants were the officers and 
only stockholders of the corporation, and they therefore did 
not proceed with the formality they otherwise would have 
done. 

Plaintiff's right to recover was predicated upon the fact that 
one half of the stock was not subscribed for at the time the 
indebtedness was incurred. Notwithstanding this was the 
issue, Spaar, the secretary, testified that only 110 shares in 
all were subscribed for. This would be true only in case the 
first subscription of 100 shares was canceled. If it were not 
in fact canceled it would have been easy for the three defend- 
ants to so testify. They were all witnesses upon the trial, 
and yet neither claims that the certificates for 100 shares, 
duly made out and marked void, did not correctly indicate a 
cancellation of the first subscription ; and neither DM, the 
president, nor Mueller, the vice-president, contradicts Spoof's 
testimony to the effect that only 110 shares in all were ever 
subscribed for. Upon the trial it was sought to show that 
valid oral subscriptions were made which, together with the 
amount of stock issued, satisfied the statutory requirement as 
to subscriptions. It was also sought to show that the capital 
stock had not been increased from $10,000 to $25,000 before 
the indebtedness was incurred, but proof failed as to both. 
The contention that the original subscription of 100 shares 
was not canceled is made, it is true, upon some evidence tend- 
ing to sustain it ; but if correct it could have rested upon ac- 
tual proof of the fact by the testimony of the three defend- 



11] JANUARY TERM, 1916. 37 



Weston V. Dahl, 162 Wis. 32. 



ants to the effect that their subscriptions were not canceled. 
Their failure to so testify, taken in connection with the issue 
made and the other evidence tending to negative the validity 
of their original subscription, is, we think, a sufficient basis 
for the court's finding that one half of the stock of the corpo- 
ration was, to the knowledge of the defendants, not subscribed 
for at the time the indebtedness was incurred. 

Some objection was made to the competency in evidence of 
the certificate of the register of deeds attached to the certified 
copy of the record of the amendment of the articles of incor- 
poration increasing the capital stock of the corporation, fur- 
nished by the secretary of state. Sec. 1774: requires such 
certificate to be filed in the office of the secretary of state be- 
fore a certificate of amendment can issue. It was therefore 
a part of the record of the secretary of state and duly authen- 
ticated by his certificate attached to the record. 

Dahl, the president of the corporation, testified that one 
Wilde orally promised to take ten shares of stock, and one 
Burwitz, by a like promise, agreed to take twenty shares. 
The trial court properly excluded such oral promises in de- 
termining the amount of stock subscribed. Oral promises 
such as were made to take stock are not subscriptions for stock 
within the meaning of the statute. They rested in parol, 
and by virtue of sec. 2308, Stats. 1913, could not be enforced. 

The most important legal question raised by the assign- 
ment of errors is that plaintiff has no title to the claims 
assigned to him because, since the statute is a highly penal 
one, claims under it are not assignable. The section (sec. 
I774n) reads: 

"No amendment to the articles of any corporation, increas- 
ing the capital stock, shall be filed unless accompanied by the 
affidavit of the president and secretary that at least one half 
of the capital stock, including the proposed increase, has 
been duly subscribed and at least twenty per centimi thereof 
actually paid in. The aforesaid officers and any other offi- 
cer or stockholder consenting to the incurring of any debt of 



38 SUPREME COURT OF WISCONSIN. [Jan. 



Weston y. Dahl, 162 Wis. 32. 



liability by such corporation, while having knowledge that 
less than one half of the authorized capital stock has been 
subscribed or that less than twenty per centum thereof has 
been actually paid in, shall be personally liable upon the 



same." 



It is argued that this section is as penal in its nature as is 
sec. 1765, Stats., under which claims were held nonassign- 
able in KUlen v. Barnes, 106 Wis. 546, 82 N. W. 536. That 
section provides in substance that if directors of a corpora- 
tion shall pay an unlawful dividend they shall be jointly and 
severally liable to the creditors of the corporation at the time 
of declaring such dividend to the amount of their claims. 
The two sections are radically different in their penalties, if 
sec. 1774n can be said to be penal in its nature. Sec. 1765 
gives creditors of a corporation relief far in excess of that oc- 
casioned by the wrong. An unlawful dividend of but a few 
hundred dollars may be paid resulting in obligations that 
may amoimt to thousands of dollars. Its violation transfers 
indebtedness of the corporation to the offending officers. Its 
purpose is to punish an unlawful act. On the contrary, sec. 
1774n does not give creditors of a corporation damages in 
excess of that occasioned by the wrong, but only equal to it. 
The wrong is the creating of the indebtedness for which the 
offenders are held liable. Hence their liability is measured 
by their wrongful act. It creates a primary obligation upon 
them at the time the debt is incurred. Its purpose is to give 
creditors of a corporation transacting business before it is by 
law authorized to do so primary recourse to those who wrong- 
fully create the indebtedness on the part of the corporation. 
A violation of sec. 1773, Stats. 1913, which is quite similar 
in its provisions, has been construed to create a primary abso- 
lute liability on the part of the stockholders. Flour City 
NaL Bank v. Wechselherg, 45 Fed. 547. The statute here 
imposes a contractual relation upon the officers and not a pen- 
alty in the strict sense of the term. For that reason claims 
arising under it are assignable, and plaintiff was properly 



11] JANUARY TERM, 1916. 39 



Wisconsin Zinc Co. v. Fidelity & D. Co. 162 Wis. 39. ^ 

permitted to maintain the action as owner of the assigned 
claims. 

Among the claims assigned was a note for $152.80 given 
the Standard Metal Spinning Company for goods bought 
from it The complaint as to this was for goods furnished 
the corporation. But it was admitted that a note had been 
given for the account and that the note was unpaid. It was 
not produced upon the trial and was claimed by plaintiff to 
have been lost Defendants objected to the inclusion in the 
judgment of the amount of such note, but the trial court in- 
cluded it therein without requiring plaintiff to give a lx)nd of 
indemnity as provided by sees. 4190, 4191, Stats. 1913. In 
this the court erred, and the judgment is directed to be modi- 
fied by deducting this item unless the plaintiff shall within 
thirty days after filing the remittitur execute and file the 
statutory bond, in which event the judgment is affirmed. 
The defendants are entitled to their costs upon this appeal. 

By the Court. — Ordered accordingly. 

Eebwin and Timlin, JJ., dissent 



Wisconsin Zinc Company, Respondent, vs. Fidelity & De- 
posit Company of Maryland, Appellant. 

Novemher 19, 1915-^anuary 11, 1916, 

Insurance: Indemnitu: Emplcyer'a liaMlity: Construction of con- 
tract: Settlement of cJaima: Exclu$ive right of insurer: Agency: 
Failure to make settlement: Recovery of larger amount: Liabil- 
ity to assured: Negligence: Bad faith: Pleading: Complaint: 
SufUciency. 

L When the language used in an insurance contract is unambigu- 
0118, its usual and ordinary meaning should be attributed to it. 

2. The parties to an insurance contract for indemnity against loss 
by reason of injuries to employees have a right to insert such 



40 SUPREME COURT OF WISCONSIN. [Jan. 



Wisconsin Zinc Co. v. Fidelity ft D. Co. 162 WiB. 39^. 



provisions therein as they see fit, so long as those proYisions do 
not contravene public policy; and the courts have no power to 
add or subtract anything from the contract actually made, but 
must so interpret it as to carry out the intention of the parties. 

3. Where in such a contract the insurer reserves the exclusive right 

to settle any claim or suit against the assured, but does not ex- 
pressly assume any duty to make settlements or to exercise or- 
dinary care in negotiating them, the right so reserved is a mere 
option which may be exercised to its full extent by the insurer 
for its own benefit and advantage, provided it acts in good faith. 

4. Such a contract creates no agency of the insurer for the assured 

in respect to the making of settlements, in any sense that would 
make it the duty of the insurer to act for the interest of the as- 
sured rather than for its own interest. 

5. Under such a contract, limiting to $5,000 the insurer's liability on 

account of injury or death of a single employee, the insurer was 
not bound to settle a claim which could have been settled for 
$5,000 or less; and although the claimant afterwards recovered 
a much larger judgment against the assured, the insurer was 
not liable to the assured for more than $5,000 either on the con- 
tract or on the ground that it had not exercised ordinary care, 
prudence, and judgment in respect to the making of a settle- 
ment. 

6. But in such a case, while the insurer may consult what it deems 

to be its own interest in respect to making a settlement, if it 
acts in bad faith and thereby perpetrates a fraud upon the as- 
sured it will be liable for the loss caused thereby. 

7. Construed with great liberality the complaint in this case is Tield, 

on demurrer, to state a cause of action based on bad faith and 
fraud of the insurer in failing to settle for $5,000 or less the 
claim of an injured employee who afterwards recovered judg- 
ment for $12,500. 

Appeal from an order of the circuit court for Grant 
county: Gfeobge Clementson, Circuit Judge, Affirmed in 
part; reversed in part. 

The complaint in this case sets out three causes of action 
arising out of the same transaction : one on contract, one in 
tort, and one based on fraud. The defendant demurred to 
each of said causes of action, on the groimd that the com- 
plaint did not state facts sufficient to constitute a cause of ac- 
tion. A demurrer was also interposed on the ground that 



11] JANUARY TERM, 1916. 41 

WiBconsIn Zinc Co. v. Fidelity & D. Co. 162 Wis. 39. 

several causee of action were improperly united. The court, 
in deciding the demurrer, stated: "I have specially consid- 
ered the cause of action set forth in the third count of the 
complaint, and as to that I am satisfied that the demurrer is 
not well taken." An order was accordingly entered overrul- 
ing the demurrer, from which order the defendant appeals. 
The first cause of action alleges the corporate capacity of 
plaintiff and defendant, and that plaintiff is in the mining 
business and that defendant is engaged in the business of 
writing casualty and indemnity insurance and duly licensed 
to transact business in the state of Wisconsin. The com- 
plaint then sets forth that in March, 1912, the plaintiff and 
defendant entered into a contract of indemnity insurance, 
whereby for value received the defendant agreed to indem- 
nify the plaintiff against loss for one year from liability im- 
posed by law upon the plaintiff for damages on account of 
bodUy injuries or death suffered by its employees, subject to 
the limitation of $5,000 for loss from an accident resulting 
in bodily injuries to or in the death of one person; that de- 
fendant undertook to settle or defend in the name and on be- 
half of plaintiff any suit brought against it to enforce a 
claim, whether groundless or not, for damages on account of 
bodily injuries or death suffered by any of its employees 
within the period covered by the policy; that in October, 
1912, one Clyde Mayhew, an employee of the plaintiff, suf- 
fered a severe bodily injury which resulted in the loss of his 
right arm ; that such injury was caused by said Mayhew com- 
ing in contact with an insufficiently guarded belt and was one 
for which liability was imposed by law upon the plaintiff and 
was covered by the policy of insurance ; that under the terms 
of said policy settlement of all claims and the defense of all 
suits brought thereon was left exclusively in charge or under 
the control of the defendant; that said ifavhew made claim 
against the said plaintiff for the sum of $5,000 and offered 
to settle with the plaintiff and release all his claim for dam- 



42 SUPREME COURT OF WISCONSIN. [Jan. 

Wisconsin Zinc Co. t. Fidelity 6 D. Ck). 162 Wis. 39, 

ages upon payment of said sum, which sum was a fair and 
reasonable amount for said injury; that the defendant was 
BO informed, and plaintiff performed all the conditions of the 
contract on its part to be performed; that notwithstanding 
the fact that it was an injury for which liability was imposed 
by law, and the defendant had undertaken on plaintiff's be- 
half the exclusive control and management of said claim and 
negotiations for settlement thereof, the defendant refused 
and failed to settle with said Mayhew; that thereafter suit 
was brought by said Mayhew against the plaintiff to recover 
damages in the sum of $25,000 ; that before trial said May- 
hew offered to settle his claim and dismiss the suit and re- 
lease all claim for damages against the plaintiff herein upon 
payment of the sum of $4,000, and that such offer was made 
to a duly authorized representative of the defendant; that 
said defendant failed and refused to carry out its contract 
and permitted the said suit to go to judgment, and that judg- 
ment was rendered therein against the plaintiff for the sum 
of $12,500 and taxable costs; that thereafter said suit was 
appealed to the supreme court of the state of Wisconsin and 
the judgment rendered therein was affirmed; that thereafter 
plaintiff was compelled to pay said Mayhew in satisfaction 
of said judgment the sum of $7,500 in addition to the $5,000 
and interest contributed by the defendant, and that defend- 
ant has refused to reimburse the plaintiff to the extent of 
$7,500; that notwithstanding the defendant by its contract 
had agreed to indemnify the plaintiff to the amount of $5,000 
in addition to all interest on the verdict and all costs, against 
all damage from liability imposed by law as alleged herein, 
and to defend or settle all suits brought on said claims, the 
said defendant, although it had an opportunity to do so, 
wholly failed and refused to make settlement and thus in- 
denmify said plaintiff, and thereby occasioned said plaintiff 
damage to the amount of $7,500, and that payment of said 
sum has been demanded and refused. 



11] JANUARY TERM, 1916. 43 

Wiacoasln Zinc Co. t. Fidelity A D. Co. 162 Wis. 39. 

The second cause of action reiterates substantially all of 
the allegations found in the first cause of action, and in ad^- 
dition thereto alleges that the defendant negligently and care- 
lessly failed and refused to settle with Mayhew, although it 
knew, or could have known by the exercise of reasonable care, 
that any suit brought upon said claim was attended with 
great danger, as the accident was one for which liability was 
imposed by law; that before trial said Mayhew offered to 
settle for $4,000, but that the defendant negligently and 
carelessly failed and refused to carry out the contract in ref- 
erence to making a settlement and negligently permitted said 
suit to go to judgment, and that it was defendant's duty, hav- 
ing undertaken in the plaintiff's behalf the exclusive control 
and management of the claim and negotiations for settlement 
and the defense of the suit, to conduct itself in respect to said 
negotiations for compromise and management of the defense 
of said suit with a reasonable degree of care, skill, and dili- 
gence for the protection of plaintiff's interest; that the de- 
fendant was negligent in the performance of the duties which 
it assiuned and wholly failed in the diligent performance 
thereof, in that it entirely failed to conduct said negotiations 
for settlement by way of compromise with reasonable skill 
and diligence and negligently failed and refused to make a 
reasonable offer of compromise or settlement with said May- 
hew and negligently failed and refused to settle the claim be- 
fore suit was brought, knowing, in the exercise of due care, 
that said injury was one for which liability was imposed by 
law, and failed and refused to cause said suit to be settled 
and adjusted for the sum of $4,000, which could have been 
done with the exercise of reasonable skill and diligence on the 
part of the said defendant ; that notwithstanding the defend- 
ant had agreed to indemnify plaintiff from all damage f rotn 
liability imposed by law and had undertaken for a valuable 
consideration to settle or defend said suit, said defendant 
failed to use due and proper care and skill in adjusting said 



44 SUPREME COURT OF WISCONSIN. [Jan. 



WisconBin Zinc Co. t. Fidelity « D. Co. 162 Wis. 39. 

claim and in performing the terms and conditions of said 
contract of insurance so as to save the plaintiff harmless as 
the defendant had contracted to do, and that by its unskilful 
and negligent conduct in the premises the plaintiff suffered 
damages in the sum of $7,500. 

The third cause of action sets forth substantially all of the 
facts contained in the first cause of action and contains the 
following additional averments : That at the time of entering 
into the said contract and thereafter the defendant well knew 
the hazards attending litigation of the character in which it 
became involved with Mayhew, and knew, or in the exercise 
of reasonable care should have known, the hazards attending 
the Mayhew claim and the danger of a large judgment being 
obtained by said Mayhew against the plaintiff; that under 
the circumstances and under its obligation to act in the set- 
tlement and defense of such claims in the name and on be- 
half of the plaintiff, it was the duty of the defendant to have 
settled said claim for $5,000, but that defendant, instead of 
acting on behalf of plaintiff in the matter, assumed a position 
hostile to plaintiff and plaintiff's interest, and, acting, not in 
behalf of plaintiff, but in its own interest and behalf, and in 
bad faith and fraudulently towards plaintiff, failed and re- 
fused to take advantage of the offer of settlement and refused 
to make said settlement, despite the fact that plaintiff, real- 
izing the seriousness of the case and believing it was one in 
which it was liable, offered to pay one third of any amount 
necessary to be paid in order to effect a settlement ; that said 
defendant in bad faith refused to act in behalf of the plaintiff 
in the matter of the settlement of the Mayhew suit and re- 
fused to make any offer of settlement or compromise with 
Mayhew, although frequently requested so to do; that after 
suit was commenced said Mayhew offered to settle for $4,000, 
but that said defendant in bad faith toward plaintiff, acting 
not on behalf of plaintiff, but in its own behalf and interest, 
and wholly disregarding and in hostility to the interest of the 



11] JA^^UARY TERM, 1916. 45 

WiBconsin Zinc Co. v. Fidelity A D. Co. 162 Wis. 89. 

plaintifP, refused to accept the offer of compromise last afore- 
said, despite the fact that it was a reasonable amount for the 
compromise of said suit, considering the nature and circum- 
stances of the injury and the law of the state of Wisconsin 
relating thereto and the danger of a much larger judgment 
being obtained bj Mayhew, and despite the fact that the 
plaintiff herein informed the defendant of the dangers at- 
tending the suit of said Mayhew and requested that said set- 
tlement be made and offered to contribute one third of the 
amount demanded; that defendant, acting wrongfully to- 
ward plaintiff, permitted said suit to go to judgment, to the 
plaintiff's damage in the sum of $7,500. 

The insurance policy was made a part of the complaint 
The provisions of the same material to a consideration of the 
questions raised on the appeal are the following: 

^'Fidelity and Deposit Company of Maryland • • • herein 
called the company . . . does hereby agree 

"(1) To indemnify Wisconsin Zinc Company of Platte- 
ville, . . . herein called the assured, against loss from the 
liability imposed by law upon the assured for damages on ac- 
count of bodily injuries or death suffered — (a) by any em- 
ployee ... of the assured while engaged in the occupation 
and at the places named in statement numbered 4 of said 
schedi^e during the prosecution of the work described in said 
schedule. 

"(2) To defend in the name and on behalf of the assured 
any suit brought against the assured, to enforce a claim, 
whether groundless or not, for damages on account of bodily 
injuries or death suffered, or alleged to have been suffered, 
by any person described in subsections (a) [employee of the 
assured]. . . . 

"A. The company's liability for loss from an accident re- 
sulting in bodily injuries to or in death of one person is lim- 
ited to five thousand dollars, and, subject to the same limit 
for each person, the company's total liability for loss from 
any one accident resulting in bodily injuries to or jn the 
death of more than one person is limited to teii thousand dol- 
lars. The expenses incurred by the company in defending 



46 SUPREME COURT OF WISCONSIN. [Jan. 

Wisconsin Zinc Co. T. Fidelity & D. Co. 162 Wis. 39. 



any suit, including the interest on any verdict or judgment 
and any costs taxed against the assured, will be paid by the 
company irrespective of the limit expressed above. 

"B, Upon the occurrence of an accident the assured shall 
give immediate written notice thereof, with the fullest infor- 
mation obtainable at the time, to the company, at its home of- 
fice in Baltimore, Maryland, or to its authorized representa- 
tive. If a claim is made on account of such an accident the 
assured shall give like notice thereof with full particulars. 
If thereafter any suit is brought against the assured to en- 
force such a claim, the assured shall immediately forward to 
the company at its home office every summons or other proc- 
ess as soon as the same shall have been served upon him. 
The company reserves the right to settle any claim or suit. 
Whenever requested by the company, the assured shall aid in 
securing information, evidence and the attendance of wit- 
nesses; in eflFecting settlements; and in prosecuting appeals. 
The assured shall at all times render to the company all co- 
operation and assistance within his power." 

"E. The assured shall not voluntarily assume any liabil- 
ity; nor interfere in any negotiations or legal proceedings 
conducted by the company on account of any claim ; nor, ex- 
cept at his own cost, settle any claim ; nor, without the writ- 
ten consent of the company previously given, incur any ex- 
pense; except that he may provide at the time of the accident, 
and at the cost of the company, such immediate surgical re- 
lief as is imperative." * 

"K. No action, shall be brought against the company under 
or by reason of this policy unless it shall be brought by the 
assured for a loss, defined hereunder, after final judgment 
has been rendered in a suit, described hereunder, and within 
two years from the date of such judgment, to wit, for a loss 
that the assured has actually sustained by the assured's pay- 
ment in money — (a) of a final judgment rendered after a 
trial in a suit against the assured for damages on account of 
the negligence of the assured ; (b) of the expenses (excluding 
any payment in settlement of a suit or judgment) incurred 
by the assured in the defense of a suit against the assured 
for damages on account of the negligence or alleged negli- 
gence of the assured. The company does not prejudice by 



11] JANUARY TERM, 1916." 47 



Wisconsin Zinc Co. v. Fidelity A D. Co. 162 Wis. 39. 



this condition any defenses against such action that it may be 
entitled to make under this policy." 

For the appellant there was a brief by Williams & Stem, 
and oral argument by Burdette F, Williams. 

For the respondent there was a brief signed by Kopp dk 
Brunckhorst, attorneys, and A. P. Hebard, of counsel, and 
oral argument by Arthur W. Kopp, 

Babnss, J. The rights of the parties to this litigation 
rest upon the insurance contract which existed between them. 
A determination of the true intent and meaning of that con- 
tract is therefore essential. When the language used is un- 
ambiguous,, its usual and ordinary meaning should be at- 
tributed to it Imperial F. Ins, Co, v. Coos Co, 151 U. S. 
452, 14 Sup. Ct. 379 ; Rumford Falls P, Co. v. Fidelity & 
C. Co, 92 Me. 574, 43 Atl. 503. There are four provisions 
of the policy which should be particularly considered in de- 
ciding the case. Two relate to positive undertakings of the 
defendant ; one to a like undertaking of the plaintiff ; and one 
to a right reserved by the defendant The defendant agreed 
to indemnify the plaintiff for injury to a single employee to 
an amount not exceeding $5,000 and to pay the expenses in- 
curred in defending any suit which might be brought, in- 
terest on the verdict, and taxable costs. But no action could 
be maintained against defendant by the insured under or by 
reason of the policy unless begun to recover a loss defined 
thereunder after final judgment had been rendered in an ac- 
tion brought by the injured employee against the employer. 
The defendant further agreed to defend in the name and on 
behalf of the insured any suit brought against it for damages 
on account of bodily injuries to its employees. The insured 
agreed not to voluntarily assume any liability nor interfere 
in any negotiations or legal proceedings conducted by the in- 
surer; nor, except at its own cost and expense, to settle any 
claim; nor to incur any expense without the consent of the 



48 SUPREME COURT OF WISCONSIN. [Jaw. 

• ^ . 

Wisconsin Zinc Co. v. Fidelity A D. Co. 162 Wis. 39. 

company except for such immediate surgical relief as might 
be imperativa The insurer reserved the right to settle any 
claim or suit In short, the defendant agreed to defend at 
its own cost any suit that might be brought, and to reimburse 
plaintiff to the extent of $5,000 on account of the damages 
that might be recovered and paid, together with interest and 
costs, and reserved the right to settle any claim or suit; and 
plaintiff on its part agreed not to make any settlement except 
at its own expense. 

While the vast majority of claims for personal injuries to 
a single individual would not involve the payment of $5,000, 
still this limitation on liability is an important one to the in- 
surer and one which presumably affects the amount of pre- 
mium to be paid for indemnity. Responsibility on the part 
of the insured beyond the amount of the premium paid has 
also a tendency to induce caution in providing safety ap- 
pliances and devices. The provision prohibiting the insured 
from making settlements is of even greater importance to the 
insurer. The matter is left with the party who pays all the 
indemnity in most cases and who pays a large part of it in 
the rest of them. It is pretty evident that if the insurer in- 
trusted the matter of making settlements to its numerous 
policy-holders its existence would be precarious. We are all 
apt to be generous when it comes to spending the money of 
others. So long as the law countenances and to some extent 
encourages insurance of this character, the right of making 
voluntary settlements must, almost as a matter of necessity, 
rest with the insurer rather than with the insured. An in- 
surance company could hardly be expected to do business on 
any other basis, because it furnishes the only safeguard avail- 
able against the payment of excessive damages. 

When the defendant assumed the defense of the action and 
paid the cost of the litigation and interest on the verdict and 
contributed $5,000 toward the pajTnent of damages, it com- 
plied with all the obligations which it expressly assumed, un- 



11] JANUARY TERM, 1916. 49 



Wisconsin Zinc Co. v. Fidelity A D. Co. 162 WU. 39. 



less it be held that the defendant was bound to protect the 
plaintiff by settling every claim where settlement could be 
made for $5^000 or less. This latter suggested construction 
of the contract we deem to be entirely untenable. There is 
no agreement on the part of the defendant to settle any claim 
and no duty imposed upon it to do so, unless such agreement 
or duty is implied or is to be inferred from the provisions 
which prevented the plaintiff from settling and reserved the 
right in the defendant to make settlement. 

The plaintiff seeks to sustain its first cause of action on 
the theory that defendant by its contract obligated itself to 
settle the claim in question because settlement could be made 
for $5,000 or less and the plaintiff thus relieved of liability. 
As to the second cause of action, it is urged that defendant, 
having obligated the plaintiff not to settle and having re- 
served to itself the right to do so, was bound to exercise ordi- 
nary care, prudence, and judgment in making a settlement, 
and if it failed to do so it was guilty of a wrong for which 
recovery might be had. In this connection it is further 
urged that by the insurance contract the plaintiff constituted 
the defendant its agent for the purpose of making settle- 
ments, and that for a breach of duty in failing and refusing 
to make a settlement advantageous to the plaintiff in this case 
it is liable to its principal. 

There is no liability on the insurance contract under its 
provisions until a judgment is recovered by an employee and 
is paid by the insured. Stenhom v. Brown-Corliss E. Co. 
137 Wis. 564, 119 N. W. 308 ; Cornell v. Travelers Ins. Co. 
175 N. Y. 239, C7 N. E. 578 ; Carter v. JEtna L. Ins. Co. 76 
Kan. 275, 278, 91 Pac. 178, and cases cited; Allen v. JEtna 
L. Ins. Co. 145 Fed. 881, 76 C. C. A. 265, and cases cited. 
There is no language in the policy that can fairly be con- 
strued to mean that defendant obligated itself to settle any 
and all claims that might be settled for $5,000 or less. No 
case is called to our attention where any such construction 

Vol. 162 — 4 



50 SUPREME COURT OF WISCONSIN. [Jan. 

Wisconsin Zinc Co. v. Fidelity A D. Co. 162 Wis. 39. 



has been placed on aimilar contracts, and we doubt if any can 
be found. One or two cases are cited as so holding, but they 
do not do so. The courts which have passed upon questions 
akin to those arising on the first and second causes of action 
in cases involving similar contracts, correctly hold that the 
parties to the contract have a right to insert such provisions 
therein as they see fit, so long as those provisions do not con- 
travene public policy, and that the courts have no power to 
add to or subtract anything from the contract actually made, 
but must so interpret it as to carry out the intention of the 
parties. They further hold that the parties may agree, and 
that under such contracts they do agree, that the insurer shall 
have the exclusive right to settle claims and that this right 
may be exercised to its full extent by the insurer for its own 
benefit and advantage, subject to the qualification that it acts 
in good faith. Rumford Falls P. Co. v. Fidelity & C. Co. 
92 Me. 574, 43 AtL 503 ; Schmidt v. Travelers Ins. Co. 244 
Pa. St. 286, 288, 289, 90 Atl. 653 ; Munro v. Maryland C. 
Co. 48 Misc. 183, 96 N. Y. Supp. 705; New Orleans & C. 
B. Co. V. Maryland C. Co. 114 La. 153, 38 South. 89 (see 
note to this case, 6 L. R. A. n. s. 562-564) ; Schencke P. Co. 
V. Philadelphia C. Co. 142 N. Y. Supp. 1143. This case was 
affirmed without opinion, and was again affirmed without 
opinion in the court of appeals on October 26, 1915. We 
have been favored with the briefs in that court, and from 
them it appears that the action was one brought to recover 
for failure to exercise proper care and diligence in making a 
settlement which would have proved advantageous to both the 
insured and the insurer had it been made. 

The parties here might, if they so willed, agree that the 
defendant should settle whenever settlement would prove ad- 
vantageous to the assured, or that it would exercise ordinary 
care in negotiating settlements. The reservation of a right 
to settle is a mere option, which, however, cannot be used for 
fraudulent purposes. We can find nothing in the contract 



11] JANUARY TERM, 1916. 5^ 



Wisconsin Zinc Co. ▼. Fidelity ft D. Co. 162 Wis. 39. 

• 

by which defendant agreed to make any settlement, nor 
whereby it agreed to exercise ordinary care in the matter of 
negotiating settlements. It would be an arbitrary assump- 
tion to say that the parties intended that their contract should 
contain such important provisions and still omitted any ex- 
press mention of them. The first two causes of action are 
based on these propositions. 

There are two classes of cases relied on by the plaintiif, 
neither of which affects the questions before us. One of 
them has arisen where the insurer in violation of its contract 
obligation refuses to assume the defense of an action. There 
it is held that the insurance company by breaching its con- 
tract releases the assured from its obligation not to settle, and 
that upon such breach the assured may make any reasonable 
settlement that prudence and good judgment would dictate 
and that the insurer becomes liable for the amount paid, not 
exceeding the limit of the indemnity which it agreed to fur- 
nish. 8L Louis D, B. & P. Co. v. Maryland C, Co. 201 U. S. 
173, 26 Sup. Ct. 400 ; Butler Bros, v.- American P. Co. 120 
Minn. 157, 139 X. W. 365; Interstate C. Vo. v. Wallins 
Creek C. Co. (Ky.) 176 S. W. 217. In the other class of 
cases it is held that the insurer, having agreed to assume and 
conduct the defense of actions brought to recover damages for 
injuries, assumes the obligation of conducting such defense 
with ordinary care, skill, and prudence, and that if it fails 
to do so it is guilty of actionable negligence for which there 
may be a recovery. These cases are based on the unquestion- 
ably sound doctrine that where there is a negligent breach of 
a legal duty the injured party has a remedy. Attleboro Mfg. 
Co. V. Prankfort M. A. & P. G. Ins. Co. 171 Fed. 495, and 
cases cited. There is a legal duty to defend. Here there is 
a right reserved to settle, but no legal duty is assumed to ex- 
ercise ordinary care in making a settlement. 

The question of agency is relied on and is discussed at 
some length. The language of the contract does not war- 



52 SUPREME COURT OF WISCONSIN. [Jan. 

WiBoonsin Zinc Co. v. Fidelity * D. Co. 162 Wis. 39. 

rant the conclusion that the defendant was intended to be 
made the agent of the insured for the purpose of making a 
settlement. The relation which the parties occupied to one 
another forbids such a construction. If defendant was the 
agent of the plaintiff, then it would be its duty as such to use 
its best efforts to further the interests of the plaintiff. Such 
duty would obligate it to settle all claims that might be com- 
promised for $5,000 or less, where there was any probability 
of a larger recovery in the event of suit It would require 
the defendant in every case where its interest came in contact 
with that of the insured to disregard its own interest It is 
plain enough that under a contract of insurance like the one 
under consideration the interests of the insured and insurer 
may at times be hostile and adverse. This is such a case. 
It was clearly to the advantage of the plaintiff that settlement 
be made. If defendant believed that there was a meritorious 
defense to the action and that the case was one where recov- 
ery was doubtful or improbal)le, it was for its interest to con- 
test the case. It might avoid liability altogether, and in the 
event of defeat would not be called upon to pay much more 
than if it settled. It either had the right to consider its own 
interests as being paramount or it had not Under the lan- 
guage of the policy we think it had such right. If it had, 
there was no agency, at least in the sense claimed, because if 
defendant had the right to decide whether its interests would 
be best subserved by settling or contesting the claim, then in 
the nature of things it could not be the agent of some one else 
for the purpose of making a settlement and charged with the 
duty of doing so if settlement was desirable from the stand- 
point of the principal. The two ideas are entirely incom- 
patible. 

We hold as to the first cause of action that the contract, 
fairly construed, did not obligate the defendant to settle 
claims where settlement could be made for $5,000 or less. 
We hold as to the second cause oi action that there was no 



11] JANUARY TERM, 1916. 53 

Wisconsin Zinc Co. v. Fidelity A D. Co. 162 Wis. 39. 

legal duty on the part of the defendant to settle and hence 
there could be no breach of such a duty and that no founda- 
tion is laid for an action in tort 

This brings us to a consideration of the third cause of ac- 
tion. The insurance contract in question places the insured 
at a serious disadvantage in the matter of settling claims in 
cases where only partial indemnity is afforded. The policy- 
holder is unable to protect himself from heavy loss unless he 
is able to settle his liability over and above the amount for 
which he is indemnified, and there may be some question 
about his even having this right under his contract. The 
power of settlement given the insurer cannot be used for the 
purposes of fraud or oppression, and the courts, in so far as 
they have passed upon the question, hold that the power con- 
ferred must not be exercised in bad faith. Some of the de~ 
cieions heretofore cited imply that for such there may be a 
recovery, and we entertain no doubt that this is the true rule. 
Indeed the defendant does not claim otherwise. The diflB- 
culty with the complaint in this particular is its paucity of 
allegation of specific facts tending to show bad faith. It is 
argued by the appellant that this count in the complaint does 
nothing more than charge that there was a legal duty on the 
part of the defendant to consider the interests of both parties 
in making the settlement, and that it considered its own in- 
terests only and ignored those of the plaintiff and that such 
action constituted bad faith. If we were convinced that this 
construction is correct, then we would have to sustain the de- 
murrer, because such a conclusion would be drawn from an 
interpretation of the contract not warranted in law. But we 
think such a construction would be rather narrow and techni- 
cal. Pleadings are now construed on demurrer with exceed- 
ing liberality. No motion has been made to make the com- 
plaint more definite and certain. In deciding on whether a 
good cause of action is stated in the third count we are not at 
liberty to look into the record on the appeal in the Mayhew- 



54 SUPREME COURT OF WISCONSIN. [Jan. 

Wisconsin Zinc Co. v. Fidelity & D. Co. 162 Wis. 39. 

Case [Mayhem v. Wis. Z. Co. 158 Wis. 112, 147 N. W. 
1035] to determine whether or not the plaintiff may be able 
to prove a case of bad faith. We are of the opinion that the 
allegations are broad enough to enable the plaintiff to prove 
such a case if the necessary facts to make it out exist. While 
Ihe defendant had the right to consult what it deemed to be 
its own interest in making a 'settlement, it could not abuse 
the power vested in it and recklessly and contumaciously re- 
fuse to settle if it was apparent that in all reasonable proba- 
bility its conduct would not only result in damage to the 
plaintiff but also in loss to itself. Neither could it exercise 
the right conferred for the purpose of perpetrating a fraud 
on the plaintiff. Inasmuch as plaintiff is entitled to submit 
its proofs under this count of the complaint, we forbear any 
extended discussion of the evidence essential to establish a 
cause of action. The order of the court in effect overrules 
the demurrer to all three of the causes of action alleged in the 
complaint. 

By the Court — That part of the order overruling the sep- 
arate demurrers to the first and second causes of action is re- 
versed and the remainder of the order is affirmed, and the 
<;ause remanded with directions to sustain the demurrers to 
the first and second causes of action. No costs are allowed 
either party, except that respondent is required to pay the 
clerk's fees. 



11] JANUARY TERM, 1916. 55 

state ex rel. Schumacher y. Markham, 162 Wis. 55. 



State e2 bel. Schumaciieb, Appellant, vs. Markham, Re- 
spondent 

yovemher 20, 1915-— January 11, 1916. 

Appealable order$: Pleading: Corrupt Practicet Act: Penaltie$: 
Ouster from office: Party (u witness: Privilege: Belf-incrimina- 
tion : Adverse examination. 

1. An order requiring a complaint to be made more definite and cer- 

tain is not appealable. 

2. The ouster from office which may be adjudged in an action for 

▼iolatlon of the Corrupt Practices Act is a penalty or forfeiture 
equally with a forfeiture of money or property. 

3. Such an action being one to enforce a penalty or forfeiture for 

criminal misconduct, the defendant cannot be compelled to be a 
witness against himself therein. 

4. A proceeding for the examination, under sec. 4096, Stats., of a Ae- 

fendant in such an action, the purpose of which was to ^prove by 
himself that he was guilty of a criminal Yiolation of the primary 
law which would forfeit his right to hold an office to which he 
had been elected, was properly dismissed. 

Appeal from orders of the circuit court for Dodge county : 
George Grimm, Circuit Judge. Dismissed as to one order; 
the others affirmed. 

This is an action brought under the Corrupt Practices Act 
(sees. 94 — 1 to 94 — 35, Stats. 1913) to try the title to the 
office of district attorney, it being alleged that the defendant 
violated the act during the primary campaign of 1913 by 
purchasing intoxicating liquors for voters and in other ways. 
The complaint was before this court on a former appeal (160 
Wis. 431, 152 N. W. 161) and was sustained. 

Three orders are now appealed from, viz.: (1) an order 
requiring the complaint to be made more definite and certain, 
and (2) an order limiting the examination of defendant as 
an adverse witness under sec. 4006, Stats., and (3) an order 
dismissing the last named proceeding. 

For the appellant there was a brief by the Attorney Geti- 



50 SUPREME COURT OF WISCONSIN. [Jan. 

St&.e ex rel. Schumacher v. Markham, 162 Wis. 55. 

I 

eral and Royal F, Clark, special counsel, and oral argument 
by Mr. Clark. 

For the respondent the cause was submitted on the brief of 
Sawyer & Sawyer. 

WiNSLOw, C. J. In this case it is held : 

1. An order requiring a complaint to be made more defi- 
nite and certain is not appealable under the present appeal 
statute. O'Connell v. Smith, 101 Wis. 68, 76 N. W. 1116. 

2. The object of this statutory action is to oust the defend- 
iuit from his office because of alleged criminal misconduct in 
the primary campaign and such ouster is manifestly a pen- 
alty or forfeiture equally with a forfeiture of money or prop- 
erty. See opinions upon former appeal. 160 Wis. 431, 
162 N. W. 161. 

3. Being an action to enforce a penalty or forfeiture for 
<;riminal misconduct, the defendant cannot be compelled to 
be a witness against himself therein. Sec. 8, art I, Const. ; 
Boyd t. U. S. IIG U. S. 616, 6 Sup. Ct 524; Karel v. Con- 
Ian, 155 Wis. 221, 144 IST. W. 266, and cases cited therein. 

4. The purpose of the adverse examination in the present 
case being confessedly to prove by defendant himself that he 
was guilty of criminal violation of the primary law which 
would forfeit his right to hold the office of district attorney, 
the court properly held that he could not be compelled to 
answer, hence the order dismissing the proceeding was cor- 
rect. 

By the Court. — The appeal from the order requiring the 
complaint to be made more definite and certain is dismissed, 
and the remaining orders appealed from are affirmed; the 
respondent to tax but one bill of costs. 



11] JANUARY TERM, 1916. 5T 

West Salem v. Industrial Ck>mmi8Sion, 162 Wis. 57. 



Village of West Salem, Appellant, vs. Indubtsial Com- 
mission OF Wisconsin and another, Respondents. 
Same, Respondent, vs. Same, Appellants. 

November 20, 1915— January 11, 1916, 

Workmen^B compensation: **Employee" of village: Peraon killed 
while aaaiating village marshal: Basis of award, 

1. Where a man, though technically under arrest by a deputy sheriff^ 

was not under his control and, in defiance of such deputy and 
the Tillage marshal, was disturbing the peace and violating the 
law, the marshal had authority, under sec. 884, Stats., to call 
upon other persons for assistance; and one who while respond- 
ing to such call was shot and killed by the prisoner was at the 
time in the service of the village as a temporary policeman un- 
der an authorized appointment, and hence under sec. 2394 — 7, 
Stats., was an employee of the village within the meaning of 
the Workmen's Compensation Act. 

2. The compensation to be awarded for the death in such a case 

should be based on the earnings of one doing policeman's serv- 
ice in the same or a neighboring locality, as provided in sec 
2394 — 10, Stats. 1913; and not upon the earnings of the deceased 
in his employment (in this case as a plumber) prior to the time 
he was called to the assistance of the marshal. 

Appeals from a judgment of the circuit court for Dane 
county: E. Ray Stevens, Circuit Judge. Affirmed. 

This is an action to set aside an award of the Industrial 
Commission requiring the plaintiff village to pay to Alice 
VoecJc $3,000 on account of the death of her husband, Will- 
iam Voeck, caused by an accidental injury while in the em- 
ploy of the plaintiff village. The circuit court set aside the 
award of the Industrial Commission and remanded the cause 
to the Commission for further proceedings. Both parties 
appeal from this judgment of the circuit court. 

William Voeck was a resident of the village of West Salem 
at the time of his death. One William Jones had left the 
village to escape criminal prosecution. He returned in about 
a year. On or about May 2, 1914, a warrant, which had 



r)8 SUPREME COURT OF WISCONSIN. [Jan. 

West Salem y. Industrial Commission, 162 Wis. 57. 



been previously issued by a justice of the peace and made re- 
turnable before the county court of La Crosse county, was 
put into the hands of the deputy sheriff, Weingarten, who at- 
tempted to take William Jones into custody. Mr. Wilcox, 
the village marshal of West Salem, met Jones and Wein- 
garten inmiediately after Weingarten took Jones into custody 
and was informed by Weingarten that Jones did not wish to 
go to the village lock-up. Wilcox suggested that Jones might 
give bail for his appearance and they applied to Justice Nel- 
son for release of Jones on his bond, but the justice dis- 
claimed any authority to release Jones from custody. The 
parties then applied to Justice Phillip, who also refused to 
take any steps to release Jones. Jones became angered at 
this refusal and drawing a gun threatened Mr. Phillip. 
The deputy sheriff prevailed upon Jones not to shoot and to 
leave Justice Phillip's house, but when Phillip closed the 
house door Jones made angry threats and broke the glass in 
the door and again threatened Phillip. Weingarten did not 
succeed in restraining Jones in this disturbance of the peace, 
whereupon Wilcox stated to Weingarten that they must do 
something and that he would get help and started to get as- 
sistance. Wilcox met Voeck and told him that Jones had a 
gun and that Weingarten needed his help and proceeded to 
call others to assist in suppressing Jones's disturbance and 
violation of the criminal law. T\Tien Voeck got within a 
few feet of Jones and Weingarten, Jones suddenly drew his 
revolver and shot Voeck, who died a short time thereafter. 

Voeck was employed as a plumber in the village of West 
Salem and earned about $18 per week. The Industrial 
Commission based the award of $3,000 upon Voeck's earn- 
ings as a plumber. The circuit court upon appeal held the 
village to be liable under the Compensation Act, but held that 
the award as fixed by the Industrial Commission was errone- 
ously based upon Voeck's average earnings as a plumber, 
and held that compensation must be based upon earnings 



11] JANUARY TERM, 191G. 5& 

West Salem v. Industrial Commission, 162 Wis. 67. 

in "the same or a similar" or the "most similar employ- 
ment" to that in which the deceased was engaged at the time 
of the injury, namely, that of a policeman of the village, 
and -remanded the cause to the Commission for further pro- 
ceedings. From such judgment both of the parties appeal. 

For the plaintiff there was a brief by Baldwin & Bosshardj. 
and oral argument by C. L, Baldivin* 

For the defendant Industrial Commission there was a 
brief by the Attorney Oeneral and Winfield W. Oilman, as- 
sistant attorney general, and oral argument by Mr. Oilman. 

For the defendant Voeck the cause was submitted on the 
brief of Oroiophorst, Evans & Thomas. 

SiEBECKXB, J. The inquiries are, Was the deceased,. 
Voeck, at the time in question, assisting the village marshal 
in the execution of his duties in suppressing a disturbance 
of the peace and aiding the marshal and the deputy sheri£P, 
Weingarten, in arresting Jones for violating the law of the 
state? and Was he, if so engaged, employed as a policeman 
of the village within the provisions of the Workmen's Com- 
pensation Act? 

The trial court correctly and clearly states the situation 
of affairs at the time Jones created the trouble at Justice 
Phillip's home which caused the village marshal to call on 
Voeck to assist him and Weingarten at this place. The 
circuit court concluded that, "While Jones was technically 
under arrest by the deputy sheriff, it is apparent that he 
was not under the control of the deputy and that the dep- 
uty sheriff did not have either the courage or the ability to 
perform his duty as a peace officer. After his arrest Jones 
was both disturbing the peace and violating the law and the 
deputy sheriff did not prevent farther continuance of such 
conduct. Under such circumstances it was the duty of the 
marshal to take such action as would prevent further contin- 
uance of this lawless conduct on the part of Jones." The 



60 SUPREME COURT OF WISCONSIN. [Jan. 

West Salem y. Industrial Commission, 162 Wis. 57. 

facts and circumstances of the case show that Jones defied 
Weingarten and the marshal in their efforts to execute the 
law, and that an occasion was presented to the village mar- 
shal for calling upon citizens to aid them. It is clearly 
shown that the marshal called on Voeck for aid and that 
Voeck responded to the call and proceeded to the place where 
he was needed. While approaching Jones and Weingarten, 
Jones shot him. 

The marshal's acts constituted in the law a command to 
Voeck to assist in the execution of the criminal law under 
the provisions of sec. 884, Stats. 1913, and refusal to com- 
ply therewith would have subjected him to the penalties of 
sec. 4488, Stats. 1913. By command of the village marshal 
Voeck was required to perform duties of the same kind as 
those of the marshal, namely, police duties to suppress a 
breach of the peace and to enforce the criminal law. The 
transaction in fact conferred on Voeck the powers and duties 
of a police officer for the purposes and the exigencies of the 
occasion. From this it logically follows that Voeck was en- 
gaged with the marshal in performing police duties in the 
village at the marshal's command. The duties and powers 
thus imposed on him under authority of the village marshal, 
by force of the statutes, constituted an appointment of Voeck 
to perform police service for the village. State ex rel. 
Brown v. Appleby, 139 Wis. 195, 120 K W. 861 ; McCum- 
her V. Waukesha Co. 91 Wis. 442, 65 N. W. 51; 3 Cyc. 877; 
2 Ruling Case Law, p. 491, § 52. The result is that Voeck 
acquired the status of a police officer of the village and was 
engaged in the execution of the criminal law at the time of 
his death. 

The Compensation Act (sec. 2394 — 7, Stats.) provides that 
the term "employee" as used in the act shall be construed to 
mean: "(1) Every person in the service of the state, or of 
any county, city, town, village, or school district therein 



11] JANUARY TERM, 1916. 61 

West Salem v. Industrial Commission, 162 Wis. 57. 

under any appointment, or contract of hire, express or im- 
plied, oral or written, except any official of the state, or of 
any county, city, town, village, or school district there- 
in. .. . Policemen and firemen shall be deemed employees 
within the meaning of subdivision (1)" of this section, and 
any compensation awarded a policeman or fireman shall be 
reduced by any sum he received from any pension or benefit 
fund to which his municipality contributed. It is consid- 
-ered that Voeck, as we have shown, was in fact rendering 
services under an authorized appointment of the village with- 
in the power conferred by statute upon the marshal ; that he 
-acted in the capacity of a temporary policeman for the village 
by authority of law; and that the deceased was performing 
policeman's service within the contemplation of the Work- 
men's Compensation Act 

The service which he was performing did not entitle him 
to any specified fee or remuneration and hence it furnishes 
no wage basis upon which to compute compensation. The 
<»ircuit court held that the Commission erred in basing their 
award on decedent's average wage as a plumber, which was 
his employment up to that time. We consider that the court 
properly held that decedent's employment as a plumber is 
not the correct basis of computation under sec 2394 — 10, 
Stats. 1913, which provides that where the specified meth- 
ods for ascertaining the average annual earnings cannot rea- 
sonably and fairly be applied, then the average annual earn- 
ings for basis of compensation shall be fixed, in the light of 
decedent's previous earnings, at the sum received by other 
employees of the same or most similar class engaged in the 
same or similar emplojTiient in the same or a neighboring 
locality. The decedent not having been employed nor earn- 
ing a salary as policeman during the year preceding his 
death, the award must be based on the earnings of one doing 
policeman's service in his or the neighboring locality as pro- 



62 SUPREME COURT OF WISCONSIN. [Jan. 



Hempton v. Green Bay & W. R. Co. 162 Wis. 62. 

vided by sec 2394 — 10, Stats. 1913. The circuit court ren- 
dered a correct judgment and properly remanded the cause 
to the Industrial Commission for further proceedings ac- 
cording to law. 

By the Court. — The judgment appealed from is affirmed* 
No costs are allowed to either party. 



HemptoNi Appellant, vs. Green Bay & Western Railway 

Company, Respondent 

December 7, 1915— January 11, 1916. 

Railroads: Injury to person taking short cut to depot: UnUghted 

way: "Negligence: Proximate cause. 

1. A railway company having proYlded a safe and suitable way by 

which its station platform and trains could be reached, no duty 
rested upon it to light or guard a back driveway which the pub- 
lic had not been, either expressly or impliedly, invited to use- 
and which, though occasionally used in the daytime as a short 
cut, had not been used or traveled at night. 

2. Even if the agent at such station negligently misinformed an in- 

tending passenger as to the time when a train would arrive, 
there was no causal connection between such negligence and an 
injury sustained by such passenger in attempting to reach the- 
train in the nighttime by an unlighted back way which had not 
been used for that purpose. 

Appeal from a judgment of the circuit court for Wood 
county: Byron B. Park, Circuit Judge. Affirmed. 

This action was brought to recover for personal injuries 
sustained by the plaintiff through the alleged negligence of 
the defendant in failing to provide suitable and proper ap- 
proaches and passageways leading to its depot and trains in 
the village of Arnott, Wisconsin. After the evidence was all 
in the court directed a verdict for the defendant, and judg- 
ment was entered accordingly, from which this appeal was 
taken. 



11] JANUARY TERM, 1916. 63 

Hempton y. Green Bay & W. R. Co. 162 Wis. 62. 

D. W. McNamara, for the appellant. 

For the respondent there was a brief by Oreene, Fairchild, 
North, Parker & McGUlan, and oral argument by //. 0. 
Fairchild. 

Kerwin, J. The evidence shows that defendant is a 
<;onimon carrier and that its road extends from Green Bay 
west through the village of Arnott to the city of Grand Rap- 
ids and beyond; that on August 21, 1913, defendant main- 
tained a depot at said village of Arnott; that plaintiff, a 
traveling salesman, arrived at Arnott about 8 p. m. on said 
•date, bought a ticket for Grand Rapids, and was informed 
that the train was late; that after plaintiff was so informed 
he went about a block south of the depot to a saloon run by 
one Ryan for the purpose of collecting a bill; that after he 
had been in the saloon a short time he was notified that the 
train was coming, when he left the saloon and started for the 
train, it being at the depot and across the main thoroughfare 
running north and south by the depot. The depot is on the 
east side of the main thoroughfare, the main track just south 
of it, there being also a sidetrack south of and about thirty-five 
feet distant from the main track. These two tracks inter- 
sect the main thoroughfare running on the west side of the 
depot and the Ryan saloon. 

At the time of the injury there was a driveway from ft 
point about three fourths of a block south from the railroad 
tracks, extending easterly and at right angles with the main 
thoroughfare a distance of about fifty feet, thence turning on 
a curve to the north and extending to the railroad tracks, 
where there was a cut of about three or three and one-half 
feet through which the tracks ran. This driveway had been 
used by teams in receiving and delivering freight and ex- 
press, and was to some extent traveled by passengers in the 
daytime as a short cut in going to and from trains. Arnott 
was at the time in question a small village of about 200 in- 
habitants and had no public lighting system. The defend- 



64 SUPKEME COUKT OF WISCONSIN. [Jan. 

Hempton v. Green Bay & W. R. Co. 162 Wis. 62. 

ant^s station and station platform were lighted by kerosene 
lamps. On the evening in question the train going west 
stopped 80 that the rear car was nearly opposite this back 
way, and the plaintiff, when he came from the saloon, took 
this way to reach the train, got off the traveled track, fell 
down the embankment, and received the injuries complained 
of. This back way was not the passageway provided by the 
defendant to reach the depot or trains. It was not lighted and 
not traveled in the nighttime by passengers in going to or 
from trains, but occasionally was used in the daytime by 
passengers as a short cut when the train was in and across 
the street The regular passageway used by passengers was 
along the street on the west side of the depot ; and when the 
train was in there was a level road between the main track 
and the switch track extending from the main thoroughfare 
east to the rear end of the train. 

There is no evidence sufficient to support a finding that 
there was any invitation, express or implied, by the defend- 
ant to passengers or others to use this way which the plaint- 
iff traveled over on the night in question, hence no duty 
rested upon the defendant to maintain lights or guard the 
way. 

The evidence shows that no record was maintained in the 
depot showing the time of arrival of trains. The evidence 
is also conflicting as to whether the station agent correctly 
reported the lateness of the train. 

The principal points of error argued by counsel for appel- 
lant are (1) that there was an invitation extended to the pub- 
lic to use the way which the plaintiff adopted in getting to 
the train; and (2) that the failure of the defendant to keep 
a record of the time of arrival of trains in the depot and the 
negligence of defendant's agent in incorrectly reporting the 
time of arrival of the train must work a reversal. 



11] JANUAKY TERM, 1916. 65 

Hempton y. Green Bay A W. R. Co. 162 Wis. 62. 

The court below in its decision in directing a verdict said : 

"On the defendant's motion to direct a verdict: There is 
to my mind no evidence to sustain a finding that there was 
any express or implied invitation to the public — which in- 
cludes this plaintiff — to cross this sidetrack and intervening 
space between the sidetrack and the main track to board a 
train standing on the main track. The plaintiff was there- 
fore, at most, a mere licensee at the time he attempted to go 
from the front door of the Ryan place east and then north 
across the defendant's property to take the train standing at 
the depot The company was therefore in no wise liable to 
maintain a light or a guard at the place where the plaintiff 
stepped off down into the cut made for the track of the de- 
fendant company. 

"As to the negligence of the company's agent in incor- 
rectly reporting the time the train would arrive, assuming 
he did negligently report it, I hold that, the company having 
provided a means by which its passengers could reach the depot 
platform, and also having provided a roadway from the main 
highway eastward between the switch track and the main 
track of the railroad, by which a passenger could — though 
the road was not provided for that purpose — reach a train 
standing on the main track, there is no causal connection be- 
tween the fault of the agent and the injury which came to 
the plaintiff while proceeding from Ryan's place eastward 
and then northerlv to cross the sidetrack to the cars. No 
one ever had in the nighttime attempted to cross at that place 
before, so far as the evidence discloses ; and it cannot be held 
that the agent ought reasonably to have foreseen that such an 
accident as befell the plaintiff would probably follow from 
his n^ligence.'' . . . 

We think the court below was right in its conclusions. 

We find no prejudicial error in the record. 

By the Court, — The judgment is a£5rmed. 
Vol. 162 — 5 



66 SUPREAIE COURT OF WISCONSIN. [Jaw. 

Nelson y. Goddard & Co. 162 Wis. 66. 



JNTsLSON, Bespondent, vs. Goddard & Company, Incoepo- 

BAT£D, Appellant. 

December 7, 1915 — January 11, 1916, 

Landlord and tenant: Lease with option to buy is not a sale: Parol 
evidence affecting writings: Agreement to give up leased prcm- 
ises if sold: False statement of sale: Voluntary surrender: 
Measure of damages for breach: Prospective profits: Excessive 
damages. 

1. A lease giving the lessee an option to purchase the premises at a 
specified price within a prescribed time and to apply the sum 
paid for rent as a payment on the purchase price, is not a con- 
tract of sale. 
[2. Whether as between the lessor and a third person parol testimony 
was admissible to show that the lease did not express the true 
intent of the parties thereto and that there was in fact a sale, 
is not decided.] 

3. The finding of a Jury in such a case that there was no sale was 

supported by evidence that the lessee wished to buy and that 
the lessor wished to sell and that they agreed upon the price, 
but that the lessee could pay only a small sum down and, the 
lessor being unwilling to make a binding contract of sale on so 
small a payment, a lease with an option to purchase was de- 
cided upon, under which the lessee might buy if he could raise 
the necessary money and if he could not his rights in the prem- 
ises would terminate at the expiration of the lease. 

4. A lessee who is obligated by the lease to vacate and give up the 

premises in case of a sale thereof has a right to rely upon the 
lessor's representation and notification that a sale has been 
made, and his delivery of the premises to the alleged purchaser 
should not be deemed a voluntary surrender thereof. 
6. The lease of a cranberry marsh having provided that the lessee 
should vacate the premises in case of a sale and that if called 
upon to do so after a certaiji date he should be paid as compen- 
sation for his loss a sum equal to the net profits that would 
have accrued if he had been allowed to complete his term, and 
the lessee having been induced to surrender the premises by the 
lessor's false statement that they had been sold, and it appear- 
ing that the net profits which would have accrued to the lessee 
were shown with reasonable certainty, such profits were the 
proper measure of his damages, it being reasonable to suppose 



11] JANUARY TERM, 1916. 67 



Nelson v. Goddard A Co. 162 Wis. 66. 



that both parties contemplated that damages for a breach would 
be so measured. 
6. An award by the jury of $1,362 as damages in such case, reduced 
by the trial court to $1,000, is further reduced by this court, on 
appeal* to |600» that being deemed as large a sum as in any 
reasonable probability a fair jury properly instructed would 
have awarded. 

Appeal from a judgment of the circuit court for Wood 
county: Bybon B. Pakk, Circuit Judge. Reversed. 

On April 14, 1913, the plaintiff and defendant entered 
into a written agreement whereby the defendant leased its 
cranberry marsh to the plaintiff. Among other things the 
agreement provided : 

"That said second party [plaintiff] will, at the expiratioii 
of this agreement, or upon receiving notice of sale of the prem- 
ises, promptly vacate and give up said premises. . . . 

"In consideration of all the above, said first party [de- 
fendant] hereby agrees to lease or rent to said second party 
the above described premises and all personal property fliere- 
on from the date hereof to December 1, 1913, unless this 
agreement shall be previously terminated by sale, with the 
privilege of using for the proper care and operation of the 
marsh all buildings, fixtures, grounds, machinery, imple- 
ments, fuel, and lumber now on the premises. 

"However, it is expressly understood and agreed that 
nothing in this agreement shall hinder, prevent, or interfere 
with the sale of the premises, and in case of sale during the 
life of this contract the said first party agrees to use their 
best efforts to prevail upon the purchaser to allow the second 
party thereto to enjoy all the conditions of this contract the 
same as if no sale had been made; but if this is not agree- 
able to the purchaser, said first party hereby agrees to pay to 
the second party the sum of forty dollars per month from 
date hereof to the day of sale, or if sale is made after July 15, 
1913, then said first party is to pay said second party a sum 
equal to the net profits that would have accrued to said sec- 
ond party if no sale had been made, such sum to be agreed 
upon by the parties to this contract, or in case of disagree- 
ment, to be estimated by Andrew Bissig/' 



68 SUPREME COURT OF WISCONSIN. [Jak. 

Nelson y. Goddard & Co. 162 Wis. 66. 

The complaint alleged that on or about May 13, 1913, 
defendant notified the plaintiff that said marsh had been 
sold and instructed plaintiff to deliver the possession thereof 
to one A. J. Amundson, to whom the sale had been made; 
that relying upon such representations plaintiff delivered 
possession of the marsh to said Amundson and received from 
the defendant $33 for his damages under the terms of the 
agreement; that later plaintiff discovered that in truth and 
in fact the marsh had not been sold and that Amundson took 
possession merely as a lessee with an option to purchase in 
the future if he so desired ; that thereafter plaintiff demanded 
compensation of the defendant according to the terms of the 
agreement, which compensation defendant refused to pay. 
Plaintiff further alleges that the net profits that would have 
accrued to him if no sale had been made would amount un- 
der the contract to $1,500, and this action is brought to re- 
cover the sum alleged to have been lost. The answer put in 
issue all the material allegations of the complaint The jury 
returned the following special verdict : 

"(1) Was there a sale of the Hancock marsh made to 
Albert J. Amundson in Mav, 1913 ? A, No. 

"(2) What were the net profits that would have accrued 
to the plaintiff from the possession of the Hancock marsh to 
the end of his lease in December, 1913 ? A. $1,362. 

"(3) Did the defendant make any misrepresentations of 
material facts upon which the plaintiff did rightly rely 
which induced the plaintiff to surrender of the Hancock 
marsh? A, Yes." 

The court held that the damages awarded by the jury 
were excessive and should be reduced to $1,000 or the ver- 
dict set aside and a new trial ordered, and plaintiff accepted 
judgment for $1,000. From such judgment defendant ap- 
peals. 

J. E. Higbee, for the appellant. 

For the respondent there was a brief by Goggins & Bra- 
zeau, and oral argument by Theo. W. Brazeau* 



11] JANUARY TERM, 1916. 69 



Nelson v. Goddard ft Co. 162 Wis. 66. 



Ba£N£s^ J. Four questions are involved on this appeal: 
(1) Was there a sale to Amundson? (2) Did plaintiff vol- 
untarily surrender the possession of the premises? (3) Did 
the court properly instruct the jury as to the rule of dam- 
ages that should he applied? and (4) Are the damages re- 
covered excessive? 

In form the contract between Amundson and the defend- 
ant is a lease, containing an option under which the lessee 
may purchase the premises at a specified price within a pre- 
scribed period of time. If the option was taken advantage 
of, the sum paid for rent was to apply as a payment on the 
purchase price. It is not seriously contended that this 
written instrument was a contract of sale, and we are satis- 
fied that it was not. The appellant does earnestly contend, 
however, that this instrument does not express the true in- 
tent and meaning of the parties and that it might and did 
show by parol the facts and circumstances surrounding the 
transaction and what actually transpired between the par- 
ties before and after the document was signed, and that the 
real question in the case is. Was there in fact a sale ? The 
respondent claims that the parol evidence offered was in- 
competent, and that if properly admitted it tended to show 
that the written agreement embodied the intention of the 
parties. The weight of authority seems to be to the effect 
that, where a controversy arises between a party to a contract 
and a third person, neither is concluded by the contract, but 
mav show what the actual transaction was. In the view we 
take of the case the matter of the admissibility of the parol 
testimony is not important, and hence we do not pass upon 
the question. As we read the testimony of Gaynor, the at- 
torney who drew the lease, and of Amundson, the lessee, the 
writing expressed the intention finally arrived at by the par- 
ties, and, if so, there was abundant evidence to support the 
answer of the jury to the first question in the special verdict. 
There is no doubt that Amundson desired to buy and that de- 



70 SUPREME COURT OF WISCONSIN. [Jan. 

Nelson y. Goddard ft CkK 162 Wis. 66. 

fendant desired to sell. The price was also agreed upon at 
$10,000. But Amundson could pay down only $500, and 
defendant was unwilling to make a binding contract of sale 
on so small a payment, evidently desiring to avoid the loss 
and expense of foreclosure in case of default So a lease 
with an option to purchase was decided upon. By this ar- 
rangement Amundson might buy if he could raise the neces- 
sary money, and, if he could not, his rights in the premises 
would terminate at the expiration of the lease and defendant 
would not be obliged to foreclose. 

There was also evidence from which the jury might have 
found that defendant represented to plaintiff that it had sold 
the property when in fact it had not, and that it notified 
plaintiff of such alleged sale and requested him to deliver 
possession to the purchaser, and that plaintiff, relying on 
the representation that there was a sale, did surrender pos- 
session to the alleged purchaser. The plaintiff was obligated 
by his lease to surrender possession in case of a sale, and he 
had a right to rely on defendant's representations that a sale 
had been made. 

The court charged the jury in substance that plaintiff was 
entitled to recover as damages the profits which he would 
have realized from the use of the premises during the term 
of the lease. Defendant urges that such damages are re- 
mote and speculative, and that the true measure was the 
difference between the reasonable rental of the premises and 
the sum which plaintiff agreed to pay. 

Profits are often an elusive phantom. They are easy to 
anticipate and hard to realize. Nevertheless in many cases 
profits can be arrived at with a reasonable degree of cer- 
tainty, and it frequently happens that they furnish the only 
fair and adequate basis of compensation for the breach of a 
contract. The plaintiff and defendant here were apparently 
satisfied that profits could be ascertained to a reasonable 
certainty and that they furnished a fair basis of compensa- 



11] JANUARY TERM, 1916. 71 



Nelson v. Goddard &»Co. 162 Wis. 66. 



tion in case plaintiff was required to vacate during his term. 
The lease expressly provided that if plaintiff was called 
upon to vacate after July 15, 1913, he should be paid as 
compensation for his loss a sum equal to the net profits that 
would have accrued if he had been allowed to complete his 
term. 

The plaintiff, we think, was entitled to recover such sum 
aa would compensate him for loss arising according to the 
usual course of things from the wrong done, or such as may 
reasonably be supposed to have been in the contemplation of 
both parties at the time the contract was made, as the prob- 
able result of the breach. Cockbum v. Ashland L, Co. 54 
Wis. 619, 12 K W. 49; FosB v. Heineman, 144 Wis. 146, 
128 X. W. 881; GuetzJcow Bros. Co. v. A. H. Andrews & 
Co. 92 Wis. 214, 66 JST. W. 119, 

It must be said here that the plaintiff's loss could be 
fairly and adequately measured by ascertaining net profits, 
if such profits could be arrived at to a reasonable certainty, 
and that the parties contemplated that damages for a breach 
would be so measured. The profits would largely depend 
on the amount of production, the labor and other cost of 
production, and the market value of the crop. The testi- 
mony quite satisfactorily established these items, and we 
conclude that the rule submitted was correct. Salvo v. Dun- 
tan, 49 Wis. 151, 4 K W. 1074; NiLson v. Morse, 52 Wis. 
240, 9 K W. 1; Nash v. Hoxie, 59 Wis. 384, 18 N. W. 408; 
PoposJcey v. Munkwitz, 68 Wis. 322, 32 K W. 35 ; Corhett 
V. Anderson, 85 Wis. 218, 54 N. W. 727; Allen v. Murray, 
87 Wis. 41, 57 N. W. 979; Stumm v. Western Union Tel 
Co. 140 Wis. 528, 531, 122 K W. 1032; Treat v. Hiles, 81 
Wis. 280, 50 N*. W. 896 ; Raynor v. Valentin Blatz B. Co. 
100 Wis. 414, 76 K W. 843. 

Some cases are called to our attention where a different 
rule of damages was applied in the cases of breaches of cove- 
ftants contained in leases. See Shaft v. Carey, 115 Wis. 



72 SUPREME COURT OF WISCONSIN. [Jan. 

Nelson y. Goddard ft Ck). 162" Wis. 66. 

166, 90 N. W. 427 ; Kellogg v. Malick, 125 Wis. 239, 103 
N. W. 1116; and Peimukee M, Co. v. Howitt, 86 Wis. 270, 
66 N. W. 784. In the last two of these cases profits were 
not allowed because it was held that the profits claimed were 
too remote and it was not contemplated by the parties that 
they would measure the lessee's damages in the event of a 
breach. In the first case the damages allowed furnished 
adequate compensation and there was no way in which prof- 
its could be ascertained with any degree of certainty. These 
cases were decided on the facts before the court. They do 
not assume to lay down any hard-and-fast rule applicable to 
all cases involving breaches of covenants contained in leases. 
The jury awarded $1,362 damages. The court reduced 
the award to $1,000, giving plaintiff the option to remit 
$362 or take a new trial. In its opinion the court stated: 

"The damages in this case are much more than the jury 
should have allowed. If every contingency had been suc- 
cessfully met and every possible obstacle overcome, the 
plaintiff could possibly have realized the full amount of the 
damages awarded him by the jury. If I were awarding the 
damages^ I would not have put them over five or six hundred 
dollars. 

"The answer to the question is, however, all an estimate, 
and necessarily unsatisfactory in its results, no matter what 
3um is fixed upon. Reading over my notes of the testimony 
leads me to think that certain allowances should certainly be 
made which would reduce more or less the plaintiff's fig- 
ures." 

The court was justified in concluding that the damages as- 
sessed were excessive. Judgment should have been per- 
mitted for only such a sum as in any reasonable probability 
a fair jury properly irstructed would return. Baxter v. C. 
& N. W. R. Co. 104 Wis. 307, 80 N. W. 644; Rueping v. 
C.& N. W. R. Co. 116 Wis. 625, 641, 93 K W. 843; Wil- 
lette V. Rhinelander P. Co. 145 Wis. 537, 558, 130 N. W. 
853. It is apparent that the court overlooked this rule. It 
is not to* be supposed that a fair jury properly instructed 



11] JANUAKY TERM, 1916. 73 

Cohen y. Minneapolis, St. P. ft S. S. M. R. Co. 162 Wis. 73. 

would not place the damages as low as the court would have 
placed them had it been trying the case without a jury. 
Much less is it to be supposed that a fair jury would award 
nearly twice as much damages as the court deemed to be 
fairly compensatory. For this reason the judgment must 
be reversed. 

By the Court, — ^Judgment reversed, and cause remanded 
for new trial unless the plaintiff elects within thirty days 
after filing the remittitur in the trial court to take judgment 
for $600 and costs, which he may do if he so elects, on mo- 
tion therefor and on due notice in said court. 



Cohen,' Bespondent, vs. Minneapolis, St. Paul & Satji.t 
Ste. Mabie Railway Company, Appellant. 

December 7, 1915—^nuary 11, 1916. 

Carriers: lAve stock killed in transit: Right to damages: Condition 
precedent: Notice: Contrctct: Validity: Duty to wait for car not 
ready when train arrives. 

1. A contract by which the shipper of live stock agrees that, as a 

condition precedent to his right to recover for loss of or injury 
to any of said stock, he will give notice of his claim before re- 
moval of the stock from place of destination or mingling with 
other stock, is valid. It does not limit the carrier's common- 
law liability, but merely prescribes a condition precedent to the 
right to enforce it. 

2. Unless restricted by the context, the word "injury" in such a con- 

tract includes injury resulting in death, and the provision for 
notice applies where stock is killed in transit. 

3. Where a scheduled stock train running from Minneapolis to Chi- 

cago and obliged, in order to reach its destination in time for 
the early morning market, to run between thirty-five and forty 
miles per hour between stations, arrived five minutes late at a 
station, it was not the duty of the carrier to wait there for a car 
which, through no fault of the carrier, was not then ready for 
shipment 

4. Where in such case, at the shipper's request, the conductor wired 

to the train dispatcher for orders and was directed not to wait, 



Y4 SUPREME COURT OF WISCONSIN. [Jan. 

Ck)heii y. Minneapolis, St. P. ft S. S. M. R. Co. 162 Wis. 73. 

the fact that the car was ready before the train actually left 
does not show a breach of duty in proceeding without it, since \ 

to take it then would have involved additional delay. , 

[5. Whether, in such a case, waiting for the car would be the giving 
of a preference to the shipper in violation of the Interstate Com- 
merce Act, is not decided.] 

Appeal from a judgment of the circuit court for Wau- 
paca county : Byeon B. Pabk, Circuit Judga Reversed. 

Action to recover damages to stock alleged to have been 
sustained in two interstate shipments from Weyauwega, 
Wisconsin, to Chicago, Illinois, one made July 1, 1913, re- 
sulting in the death of a hog of the stipulated value of $10 in 
the contract of shipment and upon which there was a salvage 
of $4.25, leaving a net loss of $5.75; the other made 
August 19, 1913, or one day later than plaintiff claims it 
should have been made, the delay causing him extra expense, 
shrinkage, etc., to the amount of $40 as found by the jury. 
Both shipments were mad% on a regularly scheduled fast 
freight train of the defendant. As to the shipment of 
August 19th the jury found (1) that on the 18th day of 
August, in addition to plaintiff not having signed the con- 
tract of shipment, his stock was not loaded and ready to be 
taken on the arrival of the train at Weyauwega; (2) that 
after the car was loaded it was the fault of defendant's 
employees that the car was not taken by the train on 
August 18th; and (3) damages in the sum of $40. The 
court entered a judgment in favor of plaintiff on both causes 
of action and the defendant appealed. 

For the appellant there were briefs by W. A. Hayes, at- 
torney, and John L. Erdall, of counsel, and oral argument 
by Mr. Hayes. 

C. F. Cranej for the respondent. 

ViNJE, J. The shipping contract of July 1st contained 
the following provision: 

"The said shipper further agrees that, as a condition prece- 
dent to his right to recover damages or loss of or injury to 



11] JANUAEY TERM, 1916. 75 

Cohen y. Minneapolis, St. P. ft S. S. M. R. Co. 162 Wis. 73. 

any of said stock, he will give notice in writing of his claim 
therefor to some officer of said railroad company, or its near- 
est station agent, before said stock has been removed from 
said place of destination, and before such stock has been 
mingled with other stock," 

In this case no such notice was given as to injury to ship- 
ment of July Ist The notice was not given till July 7th, 
when presumably the dead hog, which was sold on the 2d, 
had been removed. The trial court held that this provision 
for notice did not apply to a case where injury to stock re- 
sulted in death before arriving at its final destination. The 
contract was evidently intended to read ^'damages for loss of 
or injury to" instead of "damages or loss of or injury to." 
But, be that as it may, it provides that notice of claim of loss 
or injury to stock shall be given before removal from place 
of destination or mingling with other stock. The word "in- 
jury^' also, unless restricted by the context, includes injury 
resulting in death. 

The validity of contracts limiting the shipper's right of 
recovery to cases where notice of loss or injury is given pur- 
suant to reasonable terms of contract is sustained by the 
great weight of authority in this country. 1 Hutchinson, 
Carriers (3d ed.) sec. 442 et seq. See, also, 9 Am. & Eng. 
Ann. Cas. 20, note, and 14 Am. & Eng. Ann. Cas. 416, note; 
Such contract is held not to limit the carrier's common-law 
liability, but only to prescribe a reasonable condition prece- 
dent to the right to enforce it. The courts of Iowa, Ken- 
tucky, and Nebraska holding the contrary under their laws 
regard the stipulations as to notice to be a limitation upon 
the common-law liability of the carrier. 9 Am. & Eng. Ann. 
Cas. 24, note. The basis for the majority doctrine is thus 
summarized in 4 Kuling Case Law, p. 988 : 

"The theory of the courts on which such stipulations are 
sustained, as in the case of stipulations generally limiting 
the time within which shippers must present claims against 
a carrier, is that the requirement is a reasonable one, and 
that the object and purpose of the stipulation is to give the 



76 SUPREME COURT OF WISCONSIN. [Jan- 

Cohen v. Minneapolis, St P. ft S. S. M. R. Go. 162 Wis. 73. 

railway company an opportunity to inquire into the alleged 
loss or damage, without expense and inconvenience, so that 
unjust claims may be thwarted and the company enabled to 
protect itself against fictitious and fraudulent claims." 

While the reasons for giving notice in case of death of 
stock may not be as great as in the case of other injury, still 
there are good grounds for requiring it, especially in cases 
of shipments of carload lots to Chicago stockyards, where 
the cars are delivered to the consignees to be unloaded. The 
carrier is entitled to notice so that he can ascertain for him- 
self that death has in fact occurred and can inspect the con- 
dition of the carcass both as bearing upon the cause of death 
and the question of salvage. There may be other reasons^ 
Whatever they are it is proper and lawful to provide for no- 
tice of death as well as of lesser injuries. 

Statements may be found in digests and headnotes to the 
effect that the obligation to give notice does not apply where 
stock is killed in transit. The cases of Missouri, K. & T. 
R. Co. V. Frogley, 75 Kan. 440, 89 Pac. 903 ; Wichita & F. 
J?. Co. v. Koch, 8 Kan. App. 642, 56 Pac. 538 ; and Kansas 
& A. V. R. Co. V. Ayers, 63 Ark. 331, 38 S. W. 515, have 
been cited by annotators to sustain such a rule. In the first 
case the dead animal was removed by the carrier from the 
car. And the court said that since by such removal it had 
all the opportunity to ascertain the cause and extent of loss 
there was no need of any further notice. In the second case 
the dead animals were reloaded by the carrier during tran- 
sit, and it was held that it had opportunity to ascertain both 
the fact of death and extent of loss. In the last case it ap- 
pears that the agent of the railway company was present 
when the dead cattle were taken from the car by the owner, 
and the court said: "The company had all the opportunity 
it could have had to examine them." It will thus be seen 
that these cases were disposed of not on the ground that no 
notice of death was necessary, but because the carrier had 



11] JANUARY TERM, 1916. 77 



Cohen t. Minneapolis, St. P. & S. S. M. R. Co. 162 Wis. 73. 

already received such notice either by its own removal or 
view of the dead animals. In the case at bar the' owner 
cared for the stock in transit, the consignee unloaded the 
car upon its destination at the Chicago stockyards, and there 
is nothing to show that the carrier ever knew the hog was 
dead till it received the notice on the 7th, five days after the 
hog was removed. 

Where a reasonable notice is made a condition precedent 
to the right to recover there can be no recovery unless the re- 
quired notice is given. 4 Ruling Case Law, 988 et seq.; 
Clegg v. 8t. L. £ S. F. R. Co. 203 Fed. 971; Hudson v. C, 
St. P., M. & 0. R. Co. 226 Fed. 38 ; St. Louis & 8. F. R. Co. 
V. Phillips, 17 Okla. 264, 87 Pac. 470 ; Missouri, K. & T. 
R. Co. V. Kirhham, 63 Kan. 265, 65 Pac. 261. In the lat- 
ter case the bill of lading provided that ''the shipper further 
expressly agrees that, as a condition precedent to his right to 
recover any damages for any loss or injury to said cattle," 
etc, notice should be given, and it was held that the bill of 
lading required notice of the death of cattle which occurred 
during the shipment. In Hudson v. C, St. P., M. & 0. R. 
Co., supra, it was held that a sale of the stock within a day 
or two of its arrival constituted a removal of the same from 
the place of destination, since the court would take judicial 
notice of the way business is handled in the stockyards in 
Chicago. Since plaintiff failed to give the required notice 
he cannot recover for the damages sustained to the shipment 
of July 1st. 

As to the shipment of August 19th the jury found upon 
competent testimony that plaintiff's car was not ready when 
the train arrived at Weyauwega on the 18th. It appears 
the train ariived there five minutes late. The conductor, 
after a conversation with plaintiff in which the latter re- 
quested him to wait, wired the train dispatcher for orders 
and was directed not to wait. The train was a scheduled 
stock train running from Minneapolis to Chicago, a distance 



18 SUPREME COURT OF WISCO^^SIN. [Jan. 

Cohen v. Minneapolis, St. P. & S. S. M. R. Co. 162 Wis. 73. 

of 473 miles, and in order to make its schedule and arrive in 
time f(Jr the early morning market it had to make between 
thirty-five and forty miles per hour between stations. Con- 
siderable testimony was received by the court over the objec- 
tion of the defendant to the effect that trains often waited 
for cars when not ready upon the arrival of the train, and it 
was no doubt upon the strength of such testimony that the 
jury found in answer to the second question that after the 
car was loaded it was the fault of defendant's employees that 
it was not taken. There is testimony to the effect that the 
car was loaded before the train left. The findings of the 
jury raise the question, Is it the duty of a carrier of stock to 
wait for a car not ready for shipment when the train arrives 1 
We think the question must be answered in the negative as 
applied to the facts in this case. The evidence shows that 
between Minneapolis and Chicago there are between sixty 
and seventy stops, that usually the first stock is picked up 
at IS'ew Richmond, Wisconsin, forty-seven miles from the 
starting point, and that the bulk of the stock is picked up 
between Fond du Lac and Chicago in a distance of 159 
miles. It is quite obvious that a train usually composed of 
twenty-five to thirty-five cars upon its arrival at Chicago, if 
required to wait for cars not ready upon its arrival at sta- 
tions, could not run on schedule time and could not arrive in 
Chicago in time for the early morning market. The latter 
requirement is a very important one to shippers, both as to 
expense and the choice of an early market. When a carrier 
publishes a schedule time of a train it is notice to shippers 
that if they wish to avail themselves of shipments on that 
train they must have their cars ready upon its arrival. The 
fact that it may be ready before the train leaves does not an- 
swer if it would cause additional delay to take it then. So 
here, the plaintiff cannot avail himself of the fact that he 
caused the train to wait for orders from the train dispatcher 
and then say the car should be taken because it was ready be- 



11] JANUARY TERM, 1916. 79 



Coben v. MinneapoliB, St. P. & S. S. M. R. Co. 162 Wis. 73. 

fore the train left Carriers owe duties to all shippers and 
their business must be so conducted that it will best serve the 
general public. No shipper has a right to insist that his 
shipment must be taken though it delay the train and so 
cause inconvenience if not loss to the carrier and to other 
shippers. The operation of both freight and passenger 
trains on a long line of single track is attended with many 
difSculties; especially in the case of scheduled trains. An 
unusual delay in one train may affect many other trains. 
Different passing points may have to be provided for or else 
other trains may have to wait an unreasonable time for the 
delayed one at the vlbvlbI meeting point When the train dis- 
patcher decided that this train, already five minutes late, 
should proceed without plaintiff's car, he must have deter- 
mined that the interests of the carrier and other shippers re- 
quired that there should be no further delay. Such decision 
violated no duty which the carrier owed to the plaintiff. 
Under the law the carrier was required to exercise due dili- 
gence to run the train on schedule tima Were it required 
to wait at the pleasure of individual shippers it could not 
perform its legal duty. In order to predicate negligence 
upon the refusal to ship a car by a certain train it must ap- 
pear that the car was ready for shipment when the train, on 
or after its schedule time, is ready to take it, or that the 
failure to have it ready was due to a fault of the carrier. 
We have no such case here. Considerable search for au- 
thorities upon this question has been made, but without suc- 
cess. Whether the lack of a precedent is due to the obvious- 
ness of the fact that no duty devolves upon a carrier to hold 
its train beyond schedule time for passengers or goods or to 
the fact that no one h^s ever thought it worth while to raise 
the question we cannot say. It must, however, be safe to as- 
sume that many cases of refusal to wait have arisen both as 
to passengers and goods. Defendant also claims that if it 
had waited for plaintiff's car it would have violated the In- 



80 SUPREME COURT OF WISCONSIN. [Jan. 

Arapahoe State Bank v. Houser, 162 Wis. 80. 

terstate Commerce Act, which forbids the giving of prefer- 
ences to any shipper. Since we have arrived at the conclu- 
sion that it was not defendant's duty to wait for the car, we 
need not pass upon the question whether the federal act would 
have been violated by waiting. 

As to the shipment of August 19th the court should not 
have submitted the second question because immaterial. 
Judgment should have gone for defendant upon the answer 
to the first question. 

By the Court. — ^Judgment reversed, and cause remanded 
with directions to enter judgment dismissing the action. 



Arapahoe State Bank, Appellant, vs. Houser, Respondent. 

December 8, 1915 — January 11, 1916, 
Service of summons: Return of officer: Impeachment. 

1. An officer's return showing service of a summons can be overcome 

only by the most clear and satisfactory evidence to the contrary. 

2. Mere denial of service by the interested party is not ordinarily 

sufficient to overcome the officer's return, especially when that 
return is supported by the officer's testimony. 

3. In this case the return being supported by the officer's positive, 

consistent testimony as to the circumstances thereof and cor- 
roborated by many other circumstances, and impeached only by 
the denial of the interested defendant, a finding of the trial 
court that the summons wi^s not served on such defendant is 
held to be contrary to the clear preponderance of the evidence. 

Appeal from a judgment of the circuit court for Buffalo 
county: George Thompson, Circuit Judge. Reversed. 

Action to recover on a judgment of a court of competent 
jurisdiction in the state of Nebraska. 

The claim of the plaintiff is this: March 12, 1912, it com- 
menced an action against defendant in a court of general 
jurisdiction in Lancaster county, state of Nebraska. Serv- 



11] JANUAKY TERM, 1916. .81 

Arapahoe State Bank v. Houser, 162 Wis. 80. 

ice of the summons was duly made on, and the court obtained 
jurisdiction of, said defendant according to the laws of said 
state of Nebraska, and he appeared by attorneys, in due 
course, in said action. Such proceedings were thereafter 
duly had therein that, February 20, 1913, judgment was 
duly rendered against the defendant for $774.95 which has 
not been paid, set aside, or stayed and remains in full force. 
Judgment for the amount due thereon with costs was de- 
manded. 

The defendant answered to this effect: The alleged Ne- 
braska action arose on a pretended contract. When it is 
said to have been commenced, he was a nonresident of the 
state of Nebraska. He was neither personally served with 
the summons in said action, nor appeared therein. The al- 
leged appearance was wholly without his authority. 

Repeating the foregoing, defendant further answered to 
this effect : Before the Nebraska judgment was rendered, 
the attorneys who had, in form, appeared for defendant, by 
leave of the court, withdrew their appearance, which, uuder 
the laws of that state, left the court without jurisdiction of 
the person of defendant 

Upon the evidence, the court found as facts, among others, 
these: When the attempt was made to conmience the Ne- 
braska action, defendant was, and had been for many years, 
a resident of Wisconsin. The law of the state of Nebraska 
provided that service of a sununons to commence an action 
should be made by delivering a copy thereof to the defendant, 
or leaving it at his usual place of business before the return 
day. No attempt was made to make service on defendant, 
personally, and he had no usual place of residence in Ne- 
braska. He was advised by a reputable firm of practicing 
attorneys in Lancaster county, Nebraska, that no jurisdic- 
tion had been obtained to render judgment against him and 
he then directed them to protect his interests. Without fur- 
ther directions, such firm appeared, in form, in defendant's 

Vol. 162 — 6 



82 SUPREME COURT OF WISCONSIN. [Jan. 

Arapahoe State Bank v. Houaer, 162 Wis. 80. 

I 

behalf, demanded security for costs, which was duly given, 
and demurred to the l^mplaint The demurrer was over- 
ruled. Thereafter Mr. Whedon, the attorney who had 
charge of the action for defendant, died. His surviving 
partner, Mr. Peterson, February 20, 1913, was granted 
leave by the court to withdraw the appearance, which was 
done, and, without any new appearance on the part of de- 
fendant, judgment was rendered against him. Under the 
law of the state of Nebraska, such withdrawal left the case 
the same as if no appearance had been made therein. 

Upon such facts the trial court concluded that the Ne- 
braska court had no jurisdiction to render the judgment 
sued on, and directed a dismissal with costs. Judgment was 
rendered accordingly. 

For the appellant there was a brief by Frank C, Rich- 
mond, attorney, and Morning <& Ledwith, of counsel, and 
oral argument by Mr, Richmond. 

For the respondent there was a brief by Richmond, Jack- 
man & Sivansen, and oral argument by Sam T. Swanseru 

Marshall, J. This appeal, primarily, must turn on 
whether the Nebraska court obtained jurisdiction of the per- 
son of respondent by the officer, charged with the duty of 
serving the summons having done so "by delivering a copy of 
such summons to him, personally." Appellant contends that 
the finding in respondent's favor in respect to that matter is 
contrary to the clear preponderance of the evidence. If such 
contention have sufficient support in the record, none of the 
other matters, discussed in the briefs of counsel, need be 
considered. 

We must view the evidence in respect to the challenged 
finding in the light of the well settled principle that the re- 
turn of an officer as to his having made service of a summons 
on the defendant therein named, is evidence of more than 
ordinary dignity, and cannot be overcome except by most 



11] JANUARY TERM, 1916. 83 



Arapahoe State Bank v. Houser, 162 Wis. 80. 



dear and satisfactory proof. In general, the mere denial 
under oath by the defendant claimed to have been served, is. 
not sufficient to defeat the officer's return. This court spoke 
decisively on that in III S. Co. v. Dettlaff, 116 Wis. 319, 93 
N. W. 14. 

In the case cited, the court said that the showing must be 
''most satisfactory^' in order to overcome an officer's return. 
Without going so far as to hold that a mere denial under 
oath by the defendant of the service will not satisfy the call 
for such "most satisfactory showing," it was, in effect, held 
that any circumstantial evidence worthy of consideration in 
support of the return, is sufficient to preclude such mere de- 
nial from prevailing. 

Here, in support of the return, the officer testified, stating 
all the circumstances of the service, which agree, in many 
respects, with the evidence of respondent. The evidence of 
the officer seems to have been very fairly given on his direct 
examination and not to have been weakened at all by cross- 
examination. He said, substantially, this: I made personal 
SQTvice of the summons upon Mr, Houser on the 27th day of 
March, 1912, in his room at the Lindel Hotel in the city of 
Lincoln, Lancaster county, Nebraska. I went to the door 
of his room, accompanied by the bellboy, who called him to 
unlock the door. I stepped into the room and handed him 
a certified copy of the summons. He had just gotten out of 
bed and was in his night clothes. He took the copy of the 
summons and was quite angry at being called out at that 
time in the morning. If he says he did not receive a copy 
of the summons from my hands, but that I left it outside the 
door, or on the door knob, he states a. falsehood, because I 
was in his room and handed him a copy in person. 

Respondent testified substantially like this : Quite early in 
the morning, while I was at the Lindel Hotel in Lincoln, Ne- 
braska, before I got up, a rap came at my door. I asked 
who was there and did not get a satisfactory answer. They 



84 SUPREME COURT OF WISCONSIN. [Jan. 



Arapahoe State Bank v. Houscr, 162 Wis. 80. 



rapped again and I was just out of bed — not out of bed — 
and I am not clear what I said. Anyway, he said a man 
wanted to see me. I asked again what he wanted and he 
said he had a paper for me, or a summons — I don't know 
which — and I replied something like this: "Well wait until 
I am up" or "Wait awhile," — something of that kind, — ^and, 
finally, the man said he would leave the paper there for 
me, — told me it was a summons, and he left it outside the 
door, sticking under the door or between the knob and the 
casing. When I got up, I found it there. I picked up the 
paper, read it, and took it to Mr. Whedon, an attorney, with 
whom I was acquainted, and told him the facts. I employed 
him to help me in the suit He advised me that the service 
was not good for the reason I told him, and for other reasons, 
and I said "Mr. Whedon, I have got to leave. I want you 
to take charge of it and represent my interests in the case." 

The points of agreement between the evidence of Mr. 
Houser and that of the officer are many. The former's lan- 
guage "they rapped again" corroborated the latter's that he 
did not make his visit to Mr, Houser's room alone. The two 
agreed as to the time of the visit, as to the officer making 
plainly known what his visit was for, as to the summons ac- 
tually reaching the hands of Mr. Houser, and as to his being 
very indignant because of the early call and the reason there- 
for. The only disagreement is as to whether the officer en- 
tered Mr, Houser's room and handed him the paper, or left 
it at or sticking in the door after he showed a disposition not 
to afford a present opportunity to hand it to him. 

The circumstance that Mr, Houser told his attorney ta 
help him in the suit, to take charge of it and represent his 
interests in the case, rather suggests the existence of a case 
wherein service of the summons had been made. A some- 
what similar circumstance was regarded as quite significant 
in III, 8, Co, V. Deitlaff, supra. The further circumstance 
that Mr, Houser's attorney, after having been "told the facts"* 



11] JANUARY TERM, 1916, 85- 



Arapahoe State Bank v. Houser, 162 Wis. 80. 



and given the directions before indicated, appeared, gener-^ 
ally, in the case, and was active in proceedings therein in all 
respects as if service had been regularly made, is quite sig- 
nificant. The evidence indicates that he was a reputable 
attorney, a friend of Mr, Houser's, and understood his busi- 
ness. If the facts told to him were to the effect that no per- 
sonal service had been made, he, naturally, would have 
appeared, specially, and moved to dismiss for want of juris- 
diction of the person of defendant. The course he did pur- 
sue is consistent only with the theory that, from "the facts 
told him," he understood that service had been made accord- 
ing to the return of the officer. 

The further circumstance that no attempt was made ta 
withdraw the appearance made by Mr. Whedon until after 
he died, and that it remained effective on the record for 
nearly a year, and the additional circumstance that no at- 
tempt was made, at any time, in the Nebraska court to ques- 
tion its jurisdiction, tends to weaken the evidence of Mr, 
Houser and corroborate that of the officer. 

In view of the whole situation as above detailed, and the 
fact that the burden of proof was on respondent to prove 
that the summons was not served on him as indicated in the 
officer's return, — to overcome such return so completely as to 
leave little or no doubt as to its falsity, — rwe are inclined to 
hold that the evidence of Mr, Houser cannot fairly be re- 
garded as of sufficient weight to satisfy such requirement 
If an officer's return of service, supported by his positive^ 
consistent evidence of the circumstances thereof, and sup- 
ported by many other circumstances, and not impeached by 
any evidence except the mere denial under oath of the serv- 
ice by the interested defendant, could be defeated, judgments, 
especially those rendered in foreign jurisdictions and required 
to be enforced, as in this case, would be subject to very seri- 
ous infirmity. 

The only safe way is to adhere, pretty strongly, to the rule 



S6 SUPREME COURT OF WISCONSIN. [Jan. 

Arapahoe State Bank y. Houser, 162 Wis. 80. 

that an oflScer's return of service must prevail until shown to 
be false by the most clear and satisfactory evidence, and that, 
ordinarily, the mere denial of service by the interested party 
is not suflficient therefor, especially so when the return is sup- 
ported by the ojflBcer's evidence, as in this casa That is the 
general rule as stated by text-writers. In 18 Ency. PL & 
Pr. 984, it is thus given: "In whatever form the impeach- 
ment of a return is presented, it requires the clearest and 
most satisfactory evidence to overcome the statements thus 
made under the sanction of official oath and responsibility." 
To that cases are cited from many jurisdictions including 
Wilson V. Shipman, 34 Neb. 373, 52 N". W. 576, where the 
officer's return was corroborated by his evidence very much 
as in this case, and it was held that the evidence of the de- 
fendant was not sufficient to defeat it. 

After careful review of the record, it is considered that 
the trial court's finding as to the summons not having been 
served upon respondent, is contrary to the clear preponder- 
ance of the evidence. 

By the Court. — The judgment is reversed, and the cause 
remanded for judgment according to the prayer of the com- 
plaint. 

Babnes, J. (concurring), I concur in the result, but on 
the ground that the general appearance made by Mr, Housers 
attorney waived all questions concerning the regularity of 
the service. The court having obtained jurisdiction of 
Mr. Houser's person by this appearance, I do not think it di- 
vested itself of jurisdiction by permitting the appearance to 
be withdrawn long after it was made. 



11] JANUARY TEEM, 1916. 87 

Banks v. Banks, 162 Wis. 87. 

Banks, Appellant, vs. Banks, Bespondent 

December 8, 19 15-— January 11, 1916. 
Divorce: Cruel and inhuman treatment, 

1. The grievous mental suffering which may be inflicted by one 

spouse upon the other by means of words and conduct causing 
wounded feelings may result in the most serious cruel and in- 
human treatment and render cohabitation intolerable and un- 
safe and wholly prevent the discharge of the marital duties by 
the innocent party. 

2. Upon the evidence in this case a finding by the trial court that 

the treatment of the plaintiff husband by the defendant had not 
been cruel and inhuman is held to be erroneous; and a divorce 
should have been granted to him. 

Appeal from a judgment of the circuit court for St Croix 
county: Oeoboe Thompson, Circuit Judge. Reversed, 

Plaintiff brought this action for divorce from the defend- 
ant, alleging cruel and inhuman treatment of him by defend- 
ant and that such treatment made it dangerous and imprac- 
ticable for him to live with her, and that he had faithfully 
discharged his marital obligations throughout their married 
life. The defendant by verified answer denied all of the al- 
legations of the complaint, including the allegations of mar- 
riage and that two children were bom as the fruit thereof. 
Upon the witness stand she testified to her marriage and 
the birth of the two children as alleged in the complaint, 
showing that she did not understand the effect of a general 
denial of all the allegations of the complaint. The case was 
tried to the court. Upon the evidence the court found as 
fact, "... that both parties are at fault, and that under 
the circumstances of the case the treatment of the plaintiff 
by the defendant has not been cruel and inhuman. From 
such evidence I am fully convinced that this is a ease where 
the parties should forget and forgive their past differences 
and again live together as husband and wife, each resolving 



88 SUPREME COURT OF WISCONSIN. [Jan. 

Banks v. Banks, 162 Wis. 87. 

and endeavoring to do better than before." The court 
awarded judgment dismissing plaintiff's complaint. From 
this judgment plaintiff appeals. 

For the appellant there was a brief by White <& Skogmo, 
and oral argument by F. M. White. 

For the respondent there was a brief signed by Warren P. 
Knowles, attorney, and W. T. Doar, of counsel, and oral ar- 
gument by Mr. Doar. 

SiEBECKER, J. The plaintiff contends that the court erred 
in finding that the evidence fails to establish that defendant's 
treatment of him has been cruel and inhuman. The narra- 
tive abstract of the evidence covers 125 pages of the printed 
case and is too voluminous to repeat here in condensed form. 
A thorough study of it has convinced us that the court's con- 
clusion that the evidential facts fail to show that defendant's 
treatment of the plaintiff had been cruel and inhuman is 
clearly wrong. It is without question that grave and serious 
troubles have existed between the parties, which began shortly 
after their marriage in July, 1902, and continued to the time 
of their separation in the month of May, 1914. The evi- 
dence of both the plaintiff and defendant shows that on fre- 
quent occasions the differences were accompanied by phys- 
ical violence. It also appears that the course of misconduct 
on the part of the defendant grew in seriousness and fre- 
quency in recent years. The grievous mental suffering which 
may be inflicted by one spouse upon the other by means of 
words and conduct causing wounded feelings may result in the 
most serious cruel and inhuman treatment and render cohabi- 
tation intolerable and unsafe and wholly prevent the discharge 
of the marital duties by the innocent party. A careful and at- 
tentive studv of the evidence in this case shows that the de- 
fendant's treatment of the plaintiff has been well calculated 
to inflict pain and suffering in body and mind. The evi- 
dence shows that defendant without cause or provocation ap- 



11] JANUARY TERM, 1916. S9 

Banks y. Banks, 162 Wis. S7. 

plied to plaintiff epithets of insult, that she was guilty of 
studied acts of contempt and ridicule toward him, and that 
she constantly accused him unjustifiably, when at home, of 
omitting his parental and marital duties and of neglecting 
his professional and business affairs. It appears that she in 
fits of anger and rage repeatedly prevented plaintiff from se- 
curing the nec^sary rest and sleep incident to his prolonged 
services in caring for his patients and that she almost daily 
interfered with his professional duties at his oflSce by calling 
him to the telephone and applying to him opprobrious and in- 
sulting epithets and wrongfully accusing him of neglecting 
her and his family. The course of defendant's conduct to- 
ward the plaintiff clearly shows that she is subject to uncon- 
trollable fits of anger and that she has ill-treated the plaintiff 
in cruel ways by abusive and degrading epithets while under 
the influence of her angry and vindictive passions. The evi- 
dence shows that this course of treatment has destroyed plaint- 
iff's peace of mind and has injuriously affected his mental 
and bodily health to a degree which renders it impracticable 
to properly discharge the duties imposed by the marriage re- 
lation. 

The court declares that both of the parties are at fault for 
this deplorable state of domestic affairs. We have searched 
the record for evidence in support of this declaration, and it 
shows that plaintiff did not indulge in the use of abusive and 
opprobrious epithets in his intercourse with the defendant; 
that he did not seek to retaliate bv word or act in his treat- 
ment of defendant except at occasional instances under ex- 
treme provocation ; that he was reticent in speech concerning 
their domestic trouble either in or out of defendant's pres- 
ence. It also appears that he provided for defendant, their 
children, and their household affairs to the highest measure 
of his financial ability. In arriving at these conclusions of 
fact upon the evidence adduced it should be observed that the 
defendant is not corroborated by any witness and that the 



90 SUPREME COURT OF WISCONSIN. [Jaw. 

Banks v. Banks, 162 Wis. 87. 

plaintiff is corroborated by the five witnesses who were maids 
in the service of the parties, the four witnesses whb were 
clerks in plaintiff's drug store and office, all of whom testified 
to matters within their personal knowledge, and six others 
who had witnessed trouble between plaintiff and defendant in 
their home. The medical evidence supports the plaintiff in 
his claim that he was not in good health for a considerable 
period inmiediately preceding his separation from defendant. 

We are persuaded that the record amply sustains the cause 
of action alleged by the plaintiff in his complaint and that 
plaintiff is entitled to the relief asked. Freeman v. Free- 
man, 31 Wis. 235. The evidence fails to show any recrim- 
inatory matter upon which the court would be justified to 
deny plaintiff relief upon his cause of action, within the rule 
of the adjudications in Skinner v. Skinner, 5 Wis. 449 ; Pea^e 
V. Pease, 72 Wis. 136, 39 K W. 133, and other cases in this 
court. In our judgment the court clearly erred in finding 
that the evidence failed to show that the treatment of plaint- 
iff by defendant was cruel and inhuman and in erroneously 
awarding judgment dismissing plaintiff's complaint. 

By the Court — The judgment appealed from is reversed, 
and the cause remanded to the circuit court with direction to 
render judgment in plaintiff's favor according to law. 

Timlin, J., dissents. 



11] JANUARY TERM, 1916. 91 

Chicago ft N. W. R. Co. T. Railroad CommiBsion, 162 Wis. 91. 

Chicago & Noethwestern Railway Company, Respond- 
enty vs. Railboad Commission, Appellant. 

December 8, 1915— January 11, 1916. 

Statutes: Construction: Ditches, etc, to permit natural drainage: 
Duty of railway company: Enforcement: Jurisdiction of railroad 
commission. 

1. All the words in a statute should be given effect If possible; but 

they should be given effect according to recognized legal rules. 

2. When in a statute words relating to a particular person or specific 

subject are followed by general words, the latter should be re- 
strained to persons or subjects of the same genus or family to 
which the particular person or subject belongs. 

3. Thus, in sec. 1797—81, Stats. 1913 (providing that the railroad 

commission shall have power *'to enforce the provisions of sec- 
tions 1797 — 1 to 1797 — 38, Inclusive, as well as all other laws re- 
lating to railroads"), the words "all other laws relating to rail- 
roads" are to be restrained in accordance with the rule last 
above stated, and do not include sec. 1388 &, Stats. 1913 (relating 
to the maintenance of ditches, culverts, or other outlets to per- 
mit the natural drainage of low lands over which any highway 
or road grade shall be constructed by a municipality or railway 
company). 

4. The railroad commission cannot exercise Judicial or legislative 

power, within the legal meaning of those terms. 

5. Sec. 1388^, Stats. 1913, having conferred a new right upon the 

owners of lands therein mentioned and having provided a rem- 
edy for its enforcement, which remedy is not enforcement by 
the railroad commission, the remedy so provided is exclusive. 

6. Sec. 1388Z>, Stats. 1913, not having come into existence until eight 

years after sec. 1797 — 31 was enacted, it follows that the legis- 
lature never intended by the last mentioned section to confer 
upon the railroad commission Jurisdiction to enforce the pro- 
visions of sec. 13886. [Whether the legislature could confer 
such power upon the railroad commission, is not decided.] 

Appeal from a judgment of the circuit court for Dane 
county: E. Ray Stevens, Circuit Judge. Affirmed. 

For the appellant there was a brief by the Attorney Gen- 
eral and Walter Drew, deputy attorney general, and oral ar- 
gument by Mr. Drew. 

Edward M. Smart, for the respondent. 



«2 SLTPREME COURT OF WISCONSIN. [Jan. 

Chicago ft N. W. R. Co. y. Railroad Commission, 162 Wis. 91. 

• 

Timlin, J. The appellant demurred to the respondent's 
complaint in a statutory action to set aside an order of the ap- 
pellant purporting to enforce compliance with sec. 1388&, 
Stats. 1913. The demurrer was overruled, appellant de- 
clined to answer, whereupon respondent had judgment vacat- 
ing the order on the ground that said order went beyond the 
requirements of sec. 13886, but assuming that appellant had 
jurisdiction to enforce the duty specified in said section. 
The learned circuit court concluded that the general words, 
"as well as all other laws relating to railroads," found in 
«ec. 1797 — 31, Stats. 1913, must, under the rule of interpre- 
tation which requires that eflFect be given to all words in a 
statute, confer power on the Railroad Commission to enforce 
the requirements of sec. 13886 as against railroads because 
the latter is a law relating to railroads. He therefore, in 
effect, ruled that these general words covered not only all laws 
relative to railroads regardless of other characteristics of such 
laws in force in 1905, when sec. 1797 — 31 was enacted, but 
also all laws relating to railroads which might ever after- 
wards be enacted. This is quite an ambitious program for 
an administrative tribunal without legislative or judicial 
power within the historical and legal meaning of the words, 
judicial and legislative. In this connection legislative power 
does not include rules, regulations, by-laws, or ordinances; 
and judicial power does not include those decisions of admin- 
istrative officers or tribunals known as quasi-jwdicml. In 
the doings, rather than in the sayings, of courts will this nec- 
•essary distinction be observed. Buttfield v, Siranahdn, 192 
U. S. 470, 24 Sup. Ct. 429, and cases in Rose's Notes ; 4 Dec. 
Dig., Const. Law, §§ 59-75. 

This court has shown no disposition to curtail the jurisdic- 
tion of the appellant, but has as far as possible upheld such 
jurisdiction and exalted the dignity and importance of that 
tribunal. Minneapolis, St. P. & S. S. M. R. Co, v. Railroad 
Comm. 136 Wis. 146, 116 N. W. 905, and subsequent cita- 



11] JANUARY TERM, 1916. 93 



Chicago ft N. W. R. Co. ▼. Railroad Commission, 162 Wis. 91. 

tions. The Commission is not, so far as we have observed, 
«uflFering from restriction on its jurisdiction. We should but 
illy uphold the trust confided to us if we upheld the Commis- 
sion in the exercise of judicial or legislative power within the 
legal meaning of these terms. The enforcement of laws, in 
the sense of ascertaining their meaning and application to the 
case in hand and pronouncing judgment therein, is a judicial 
function; the making of laws which are of a higher grade 
than mere regulations, rules, or by-laws, or administrative 
aids to the more general provisions of statute, is a strictly 
legislative function. It is no impeachment of the rule that 
all the words of a statute should be given effect whenever pos- 
sible, to give such words effect according to recognized legal 
rules. These rules require us, when we find in a statute 
words relating to a particular person or specific subject fol- 
lowed by general words, to restrain these general words to 
persons or subjects of the same genus or family to which the 
particular person or subject belongs. Jensen v. State, 60 
Wis. 577, 19 N. W. 374; State v. Goodrich, 84 Wis. 359, 
54 N. W. 577 ; State ex rel. Lederer v. Inter-National Inv. 
Co, 88 Wis. 512, 60 N. W. 796; 0' Sullivan v. J. S. Steams 
L. Co. 154 Wis. 467, 143 N. W. 160 ; Lusk v. Stoughton 
State Bank, 135 Wis. 311, 317, 115 N. W. 813. 

The statutes, sec. 1797 — 1 to 1797 — 37n, relate to rates 
and services, to duties, in which the public are also interested, 
imposed upon railroads by general statutes which require or 
permit administrative investigation and orders supplemen- 
tary to their enforcement by the courts. Chicago, B. & Q, R. 
Co. V. Railroad Comm. 152 Wis. 654, 140 N. W. 296, re- 
versed in 237 U. S. 220, 35 Sup. Ct. 560, cited by the learned 
circuit judge, at least related to services in which the public 
were interested. Sec. 13886 is no such statute. It is there- 
fore not within the sweep of the general words mentioned. 

Again, and independent of the foregoing but leading to the 
same conclusion so far as this case is concerned, is the rule 



94 SUPREME COURT OF WISCONSIN. [Jan. 

Read ▼. Madison, 162 Wis. 94. 

that when a new right is given by statute and at the same 
time a remedy provided for its enforcement, such remedy is- 
exclusive. SaxvUle v. Bartlettj 126 Wis. 655, 105 N. W. 
1052 ; Ilcdl V. Hinckley, 32 Wis. 362 ; State ex rel. Cook v. 
Houser, 122 Wis. 534, 595, 100 N. W. 964, and cases there 
cited; Knapp v. Deer Creek, post, p. 168, 155 N. W. 940. 

It is obvious that sec 13886 confers a new right on the 
owner of adjacent land and provides a remedy for its enforce- 
ment, which remedy is not enforcement by the Railroad Com- 
mission. 

Again, ancillary to the two foregoing tending to the same 
result, is the consideration that sec. 1797 — 31 was enacted in 
1905, while sec. 13886 did not come into existence until 1913. 
Hence it follows that the legislature never intended to confer 
on the Railroad Commission jurisdiction to enforce the pro- 
visions of sec 13886. 

We do not reach the constitutional question whether the 
legislature could confer on the Railroad Commission power 
to enforce the provisions of sec 13886, because we are satis- 
fied it has not attempted to do so. The demurrer should 
have been overruled on the ground that the Commission had 
no jurisdiction of the matter of enforcing sec 13886. 

By the Court. — Judgment affirmed. 



Read, Respondent, vs. City of IIadisox, Appellant. 

December 8, 1915 — January 11, 1916, 

Municipal corporations: Claims: Verification: Waiver: Appeal from 
disallowance: Jurisdiction of circuit court: Waiver of defects: 
Statute simplifying procedure: Construction: Retroactive effect, 

1. Where a city charter provides that claims against the city shall 
be verified and shall be presented to the common council for 
allowance, and that the sole remedy of the claimant in case of a 
disallowance shall be by appeal therefrom to the circuit court,. 



11] JANUAEY TERM, 1916. 95 

Read t. Madison, 162 Wis. 94. 

the council has no right to waive the requirement and take ac- 
tion upon an unverified claim, nor can the circuit court on ap- 
peal exercise Jurisdiction in respect thereto. 
12. How far the situation with respect to jurisdiction upon an appeal 
from the disallowance of an unverified claim may be affected 
by sec. 1, ch. 219, Laws 1915 (sec. 2836a, Stats.), or whether that 
statute affects cases which were pending at the time of its en- 
actment, not decided.] 

3. Statutes conferring new rights are generally held not to have a 

retroactive effect unless such intention is fairly expressed or 
clearly Implied, but this strict rule does not apply to statutes 
relating to remedies. 

4. Where, upon an appeal from the disallowance of an unverified 

claim against a city, the circuit court, although It had no legal 
authority to consider the cause, made an order therein overrul- 
ing a demurrer, and an appeal from such order was perfected 
before ch. 219, Laws 1915, took effect, that statute could not 
vitalize the order. 

Appeal from an order of the circuit court for Dane county : 
E. Ray Stevens, Circuit Judge. Reversed. 

WUliam Ryan, city attorney, for the appellant. 

For the respondent there was a brief by HUl £ Spohn, and 
•oral argument by W, H. Spohn. 

Barnes, J. Plaintiff presented an unverified claim to the 
common council of the city of Madison for $510.75. The 
council passed a resolution appropriating $50 in full pay- 
ment thereof. From the decision of the council plaintiff ap- 
pealed to the circuit court. In that court he filed a formal 
<»mplaint, to which the defendant demurred on the ground 
that the court had no jurisdiction of the persons of the liti- 
gants or of the subject matter of the action and on the further 
ground that the complaint did not state a cause of action. 
From an order overruling the demurrer the defendant ap- 
X)eals. 

The charter of the city of Madison (ch. 36, Laws 1882) 
provides that all accounts and demands against the city, be- 
fore the same shall be allowed, shall be verified by affidavit, 
except claims for salaries and amounts previously fixed or de- 



96 SUPEEME COURT OF WISCONSIN. [Jan. 

Read v. Madison, 162 Wis. 94. 

termined by law; that no action shall be maintained by any 
person against the city upon any claim or demand until such 
person shall have presented his claim or demand to the com- 
mon council ; that the disallowance in whole or in part of any 
claim shall be final and conclusive and a perpetual bar to any 
action in any court founded on such claim, except that an ap- 
peal may be taken to the circuit court as otherwise provided ; 
and that in case of a total or partial disallowance of a claim 
the council shall not thereafter entertain such claim again, 
but the claimant may, if he desires, prosecute the same by ap- 
peal to the circuit court and not otherwise. Sees. 23, 25, 26, 
and 27, ch. VII, City Charter. 

The appellant takes the position that the council had no 
jurisdiction to act on an unverified claim and that the action 
taken on the claim presently involved was void and that the 
circuit court could obtain no jurisdiction by appeal unless the 
common council had taken lawful action on the clainL The 
circuit court held that the matter of verification was not juris- 
dictional, but the want of it was an objection which the com- 
mon council could waive and which it did waive here bv act- 
ing on the claim, and hence it decided that the demurrer was 
not well taken. As will be seen from a statement of these 
contentions, the question before us is, Did the circuit court 
have legal authority to determine the rights of the plaintiff 
on the appeal ? 

Some of our city charters have provisions requiring the 
service of a notice or the presentation of a claim to a city 
council as a condition precedent to the maintenance of an ac- 
tion, but also provide that when action is brought it may or 
must be brought in court in the manner in which original ac- 
tions are ordinarily commenced. Others provide that the 
sole remedy of the claimant in case of disallowance is by ap- 
peal from the decision of the common council. The distinc- 
tion between the two classes is pointed out in Bunker v. Hud- 
son, 122 Wis. 43, 99 N. W. 448. As to the first class of 



11] JANUARY TERM, 1916. 97 

Read v. Madison, 162 Wis. 94. 

cases it is held that the requirement of presentation as a con- 
dition precedent to bringing the action is in the nature of a 
statute of limitations which may be waited. Hill v. Fond du 
Lac, 56 Wis. 242, 14 N. W. 25 ; O'Connor v. Fond du Lac, 
109 Wis. 253, 85 N. W. 327 ; Bunker v. Hudson, mpra. 

As to the second class of cases it is held that, unless the 
preliminary requisites are substantially complied with, the 
court on appeal gets no jurisdiction of the subject matter of 
the action. Telford v. Ashland, 100 Wis. 238, 75 N. W. 
1006; Seegar v. Ashland, 101 Wis. 515, 77 N. W. 880; 
State ex rel. Ashland W. Co. v. Bardon, 103 Wis. 297, 79 
N. W. 226; Morgan v. Rhinelander, 105 Wis. 138, 81 N. W. 
132 ; Oshkosh W. W. Co. v. Oshkosh, 106 Wis. 83, 81 N. W. 
1040; 8. C. 109 Wis. 208, 85 N. W. 376; O'Donnell v. New 
London, 113 Wis. 292, 89 N. W. 511; Morrison v. Eau 
Claire, 115 Wis. 538, 92 N. W. 280. Some of the cases 
cited go to greater extremes than tlie court would be inclined 
to go at the present time if the questions were before us as 
original ones. The statement found in some of the cases, 
that the circuit court has no jurisdiction over the subject mat- 
ter of the action, is hardly accurate. It seems anomalous to 
say that the circuit court has not jurisdiction of the subject 
matter of an action brought to recover an ordinary account 
against a city. It is a court of general jurisdiction of law 
and equity cases, and it is difficult to see how jurisdiction 
over subject matter is affected by the irregularity of pre- 
liminary proceedings. 

The legislature has the undoubted right to require claim- 
ants against municipal corporations to file their claims for 
audit and allowance before suit is commenced and the mu- 
nicipality is subjected to cost and expense. In the interest 
of the public and to prevent fraud it has the right to say that 
these claims must be verified and that no action can be taken 
thereon until they are, and to make the presentment of a claim 
the commencement of an action, and to make the remedy by ap- 
VoL. 162 — 7 



98 SUPREME COURT OF WISCONSIN". [Jan. 

Read v. Madison, 162 Wis. 94. 

peal from the action taken thereon exclusive, and further to 
provide that the appellate court shall not act on an appeal 
unless the claim was presented in such form that the munici- 
pal oflScers might properly consider it, nor unless they did 
consider it or refused to do so within the time limited hy law. 

It would be more correct to speak of the restriction against 
court action as a prohibition against the exercise of jurisdic- 
tion which inheres in the court over the subject matter of the 
suit, than to say that it is a denial of such jurisdiction. 
Certain conditions precedent must exist before the court is 
permitted to exercise its jurisdiction. In practice the dis- 
tinction is not very material, but it is suggested in the inter- 
est of accuracy. 

The immediate question before us is, Had the city council 
the right to act on the claim filed ? If the failure to verify 
was an irregularity which it might waive by taking action 
on the claim, then the decision of the circuit court was right. 
If, on the contrary, the action was a mere nullity, then under 
the construction placed on similar statutes in the cases cited 
the court had no power to proceed, because there never was 
any presentation to the council and without presentation the 
court might not exercise jurisdiction. 

In passing upon this question it might be said that the stat- 
utes dealing with the verification and presentation of claims 
against counties and the powers and duties of county boards 
in reference thereto and the matter of appealing from the ac- 
tion taken are not materially different from the provisions of 
the Madison charter in so far as this question is involved. 
Sees. 677, 678, 682, 683, 684, 685, Stats. 

The similarity of statutes dealing with claims against 
counties and those found in the charter of the city of Madison 
being conceded, the case of Meyer v. Outagamie Co, 134 Wis. 
86, 114 N. W. 94, would seem to be directly in point. 
There Meyer filed a claim against the county, which was veri- 
fied bv his son. The verification, however, did not state that 



11] JANUARY TERM, 1916. 99 

Read v. Madison, 162 Wis. 94. 

the son was acting as the agent or attorney for the claimant, 
as the statute requires. The county board acted upon the 
claim, allowing part of it and disallowing the remainder* 
No appeal was taken from this action within the time lim- 
ited by law. Subsequently Meyer filed another claim, which 
he himself verified. The county board refused to entertain 
it on the ground that it had already been acted upon and no 
appeal having been taken from this action the claimant was 
concluded thereby. Such was the view taken by the circuit 
court On appeal to this court the judgment was reversed 
on the ground that the county board had no jurisdiction to 
entertain the claim first filed because the verification was de- 
fective in not stating that the party who made it acted as the 
agent or attorney for the claimant. It was further held that 
the presentation of the first claim was a mere nullity which 
the board could not consider and that it was its duty to take 
up and consider the second claim, which was legally pre- 
sented. Other cases holding that the statute must be strictly 
complied with as to the manner of presenting claims against 
counties in order to give the county board jurisdiction are 
Birdsdl v. Kewaunee Co. 124 Wis. 576, 103 N. W. 1 ; NoHhr 
em T. Co. v. Snyder, 113 Wis. 516, 89 N. W. 460; and MU- 
ler V. Crawford Co. 106 Wis. 210, 82 N. W. 175. 

The same rule has been applied against cities having char- 
ter provisions similar to those found in the charter of the city 
of Madison. The charter of the citv of Green Bav contained 
the following provision: "No claim or demand whatever 
shall be* allowed by the common council unless the same is 
verified by the owner thereof or some person in his behalf." 
Speaking of this provision this court said : 

^'The negative form of the last provision, following the 
preceding affirmative grant of power to deal with claims and 
demands, shows that a claim against the city, such as one for 
interest in the nature of damages, cannot be entertained by 
the common council unless it is properly verified as required 
by these provisions. The negative words, coupled with an 



100 SUPKEME COURT OF WISCONSIN. [Jan. 



Read v. Madison, 162 Wis. 94. 



affirmative grant of power, to admit and allow claims and de- 
mands, import that the provisions of the giant are mandatory 
and not directory merely." Wilcox v. Forth, 154 Wis. 422, 
428, 143 N. W. 165. 

And it was held in this case that an action by a taxpayer 
would lie to recover money paid out on the claim under con- 
sideration. It is true that in that case no formal claim was 
presented to the city council, but the language of the court is 
that the claim could not in anv event be entertained unless it 
was properly verified. 

In Hutchinson v. Oshlcosh, 151 Wis. 573, 139 N. W. 446, 
it was held under statutes substantially like those here in- 
volved that it was not proper for the city council to consider 
a claim which was not verified, and that on an appeal taken 
because the city council failed to act within the time pre- 
scribed by law upon such claim the court obtained no juris- 
diction. It is proper to remark in reference to this case that 
the council refused to take any action on the claim. 

Where a statute provides that the exclusive remedy of a 
claimant against a city is by appeal from the action or non- 
action of the common council thereon, there must be a legal 
presentation of the claim to the council in order to confer 
jurisdiction by appeal on the court. O'Donnell v. New Lon- 
don, 113 Wis. 292, 89 N. W. 511; Morrison v. Eau Claire, 
116 Wis. 538, 92 N. W. 280. 

The order appealed from was entered and this appeal was 
perfected before ch. 219, Laws 1915, went into effect. We 
do not decide whether sec. 1 of that act, if applicable to the 
case, would affect the situation. Neither do we decide that 
such act may not affect cases that were pending when it was 
passed. Statutes conferring new rights are generally held 
not to have a retroactive effect unless such intention is fairly 
expressed or clearly implied. Seamans v. Carter, 16 Wis. 
548 ; Finney v, Ackerman, 21 Wis. 268 ; Vanderpool v. La C. 
£ M, R. Co. 4:4: Wis. 652, 663 ; Jocliem v. Butcher , 104 Wis. 
611, 80 N. W. 049; Lanz-Oiven & Co, v. Oarage E. M. Co. 



11] JANUARY TERM, 1916. 101 

Green v. Reedsburg, 162 Wis. 101. 

151 Wis. 655, 560, 139 N. W. 393; Clemom v. C, St. P., M. 
(£' 0. R. Co. 137 Wis. 387, 400, 119 N. W. 102; Keeley v. 
G. N. R. Co. 139 Wis. 448, 454, 121 K W. 167; Quinn v. 
C, M. £ St. P. R. Co. 141 Wis. 497, 500, 124 N. W. 653. 
As to statutes relating to remedies, however, this strict rule 
does not apply. State ex rel. Davis £ S. L. Co. v. Pors, 107 
Wis. 420, 427, 428, 83 N. W. 706 ; Stone v. Little Yellow D. 
Dist. 118 Wis. 388, 396, 95 N. W. 405. The circuit court 
not having legal authority to consider the cause when the 
order appealed from was made, we do not think that in any 
event the statute referred to could vitalize such order. 

By the Court. — The order appealed from is reversed, and 
the cause is remanded with directions to sustain the demurrer. 



Gbeen, Appellant, vs. City of Rsedsbubo, Respondent 

December 8, 1915--January 11, 1916. 

Municipal corporations: Injury from broken guy wire: Defect in side- 
walk: When city chargeable loith notice: Negligence in main- 
taining lighting plant: Defective construction: Inspection: Evi- 
dence. 

1. In an action against a city for injuries to a pedestrian who tripped 

over a guy wire which had broken and fallen across the side- 
walk, it being undisputed that the wire was not broken about 
fifteen minutes before the accident it may be said as matter of 
law that the defect in the sidewalk caused by the wire being 
there had not existed long enough to charge the city with notice 
thereof. 

2. Where in such case the guy wire was part of a commercial elec- 

tric lighting plant maintained by the city, but the evidence did 
not show any defect in its original construction or any negli- 
gence in the matter of inspecting it, no liability based on breach 
of the city's duty to keep said plant in reasonably safe condition 
was established. 

3. The mere fact that the wire broke, without evidence as to what 

caused it to break, does not show negligent inspection. 

4. Evidence that the guy wire had been there eight years, that it 



102 SUPREME COURT OF WISCONSIN. [Jan. 

Green ▼. Reedsburg, 162 Wis. 101. 

was not as heavy as is customarily used, and that it was at- 
tached to an anchor a short distance beneath the surface of the 
ground, but conflicting as to whether it broke above, below, or 
at the surface, fell short of proof of defective original construc- 
tion. 
6. If such an appliance is fairly adequate for the service required 
of it for a reasonable length of time it cannot be condemned as 
insufficient in original construction merely because it would not 
last as long as a more substantial appliance. 

Appeal from a judgment of the circuit court for Sauk 
county: James O'Neill, Judge, Affirmed. 

Action to recover damages for personal injury. On No- 
vember 17, 1913, at about 6:15 in the afternoon, plaintiff 
sustained an injury by reason of tripping over a guy wire, 
attached to an electric light pole, that had broken and fallen 
across the sidewalk on the north side of Main street at its in- 
tersection with the east line of Pine street in the city of 
Reedsburg. The city operated a commercial electric light- 
ing plant and had installed and maintained the guy wire in 
question. 

Notice of the injury was filed with the city clerk on No- 
vember 19, 1913 ; a claim filed with the council on March 3, 
1914; summons and complaint served July 27, 1914; and 
the action tried September 22, 1914. 

At the close of plaintiff's testimony the court granted de- 
fendant's motion for nonsuit. From a judgment entered ac- 
cordingly the plaintiff appealed. 

James A. Stone, for the appellant 

For the respondent there was a brief signed by Henry J. 
Bohn, attorney, and Groiophorstj Evans & Thomas, of coun- 
sel, and oral argument by Evan A. Evans, 

ViNJE, J. The questions whether this is an action under 
sec. 1339, Stats. 1913, to recover damages sustained by rea- 
son of an insufficient sidewalk or an action founded upon the 
negligent construction and maintenance of the commercial 



11] JANUARY TERM, 1916. 103 

Green v. Roedsburg, 162 Wis. 101. 

electric plant of the defendant ; whether the precise claim now 
relied upon for a recovery was ever presented to the city 
cotincil; and whether the evidence shows that the council 
failed to act upon the claim presented so as to authorize the 
maintenance of the action, need not be determined. For the 
purpose of the decision we shall assume that the action may 
be either one \mder sec. 1339 or one for negligent construc- 
tion and maintenance of the defendant's commercial electric 
lighting plant ; that the proper claim was filed ; and that the 
council neglected to pass upon it within the time required by 
the charter. 

It seems the circuit court held the action was one under 
sec. 1339, and that there was no evidence from which it could 
be found that such an injury as plaintiff sustained could rea- 
sonably be anticipated from the manner in which the guy 
wire was constructed and maintained, and hence the insuffi- 
ciency of the sidewalk, if it was insufficient, was not the prox- 
imate cause of plaintiff's injury. We need not now inquire 
into the soundness of this view because we prefer to sustain 
the nonsuit upon the ground that the evidence showed no de- 
fect in the original construction of the guy wire, and it 
failed to show that defendant had not met the legal require- 
ments as to inspection. It is undisputed that the wire was 
not broken about fifteen minutes prior to the accident. That 
being so, it can be said as a matter of law that the defect in 
the sidewalk caused by the wire being there had not existed 
long enough to charge defendant with notice thereof. If it 
be urged that the broken wire was evidence of failure of in- 
spection and so proof of negligence in an action based upon 
the duty of the city to keep its commercial electric lighting 
plant in a reasonably safe condition, the answer is that it 
does not appear what caused the wire to break. There is 
evidence that it had rusted some, but it is not shown that the 
break was the result of such rusting only. For aught that 
appears the wire may have broken because subjected to some 



104 SUPREME COURT OF WISCONSIN. [Jan. 

Green v. Reedsburg, 162 Wis. 101. 

unusual strain by a boy trying to swing on it, or a vehicle 
backing into it or against the pole to which it was attached, or 
in some other way. Were it the case of a rotten sidewalk or 
of some other structure of considerable size readily seen, or 
were the defect one apparent to the view, its condition might 
spell negligent inspection. But in the absence of all proof 
on the subject we cannot say that the condition of the wire 
evidenced negligent inspection. 

Hence, there being no evidence of failure to inspect, the 
only ground upon which plaintiff could recover, whether the 
action is one under sec. 1339 or not, would be because of de- 
fective construction. There is some evidence that the wire 
was not as heavy as is customarily used and that it was partly 
buried in the ground where attached to the anchor. It seems 
earth had been filled in around the anchor some considerable 
time after it was set and that it covered the wire a short dis- 
tance. The evidence is in dispute as to whether the wire 
broke above, below, or at the surface of the ground. It had 
been there eight years. Conceding that a heavier wire would 
have lasted longer before rusting out, still it cannot be said 
to be negligence to use a wire lasting not more than eight 
years. There is no evidence that in a fairly sound condition 
the wire used was not suflScient to bear any strain that it could 
be reasonably anticipated would be put upon it. 

A person is not bound to use the heaviest kind of appli- 
ances or those that will last the longest If the appliance 
used is fairly adequate for the service required of it for a 
reasonable length of time it cannot be condemned as insuflS- 
cient in original construction because it has to be replaced 
sooner than another more substantial appliance. Therefore 
plaintiff's evidence tending to show that the wire put in 
would not sustain as great a strain and would not last as long 
as a heavier wire, in view of the fact that the wire had served 
efficiently for eight years, fell short of proof of defective con- 
struction. A heavier wire, owing to the action of the ele- 
ments, would at some time have to be replaced. 



11] JANUARY TERM, 1916. 105 

Ballard y. Bellevue Apartment Co. 162 Wis. 105. 

It is elementary that in any action to recover damages for 
a personal injury it is essential to a recovery that negligence 
on the part of the defendant proximately causing the injury 
be established. Plaintiff has failed to produce proof from 
which a jury could find such negligence and hence the non- 
suit was properly granted. 

By ike Court. — Judgment affirmed* 



SixBEOKBB and Barnes, J J., dissent* 



Ballabd, by guardian ad litem j Respondent, vs. Bellevue 

Apabthent CoMPANTy Appellant 

Becemher 9, 1915— January 11, 1916. 

Elevators: Injury to child: Contributory negligence: Questions for 

fury. 

1. A minor suing for a personal Injury may be held to have been 

guilty of contributory negligence as a matter of law. 

2. A girl eleven years old, above the average in Intelligence, educa- 

tion, and experience, who knew and appreciated that for their 
own safety children of her age were forbidden to use the auto- 
matic elevator in the apartment building in which she lived, 
and had been frequently admonished by her parents and others 
not to use it, and who on the occasion in question, though 
warned n9t to transgress the posted rule (prohibiting the use 
of the elevator by children under fourteen years of age unless 
accompanied by parent or guardian), and fully conscious that 
she was doing wrong, persisted in using the elevator for the pur- 
pose of reaching an upper floor ahead of other persons, is held, 
as a matter of law, to have been guilty of negligence which proxi- 
mately contributed to an injury sustained when her foot, which 
projected beyond the edge of the car floor, was caught by the 
under side of a floor which she was passing. 

Appeal from a judgment of the circuit court for Dane 
county : E. Ray Stevens, Circuit Judge. Reversed. 
Action to recover compensation for a personal injury. 



106 SUPREME COURT OF WISCONSIN". [Jan. 

Ballard t. Bellerue Apartment Co. 162 Wis. 106. 

Plaintiff was injured, March 17, 1914. She was then 
eleven years of age. The accident occurred while she was 
riding in and operating an automatic elevator which was 
maintained by defendant in its apartment building for the 
use of its tenants residing in such building. Plaintiff was a 
member of a family which so resided. The circumstances 
were such that a child of plaintiff's age could readily open the 
door of the elevator shaft opposite the elevator cage, at what- 
ever floor it might be, step upon the elevator platform, and 
by pressing an electric button, cause the cage to ascend or de- 
scend as desired. The negligence complained of was that de- 
fendant maintained the elevator shaft with such projections 
into it that, in case of one riding in the cage with some part 
of his person extending beyond the side thereof; it was liable 
to collide with some such projection and a serious personal 
injury result; that ch. 688, Laws 1913, required such ele- 
vators as the one in question to be so constructed and main- 
tained as to be safe, and according to rules for safeguarding 
prescribed by the state industrial commission ; that such com- 
mission, by such rules, ordered all projections into elevator 
shafts, such as floors, sills, and bolts, unless guarded against 
by the car inclosure, to be provided with a guard under such 
projections so as to prevent any projecting portion of a pas- 
senger's body from being caught and injured thereby; that 
defendant wholly failed to comply with such order. 

The claim of the defendant was that due care was used in 
the construction and maintenance of the elevator, and that 
plaintiff was injured by reason of her own negligence, and 
that of her parents. 

The statutes of the state empower the industrial commis- 
sion to make rules in respect to the construction and main- 
tenance of elevators in public buildings, and make any owner 
of such a building, who fails to comply therewith, liable to 
a forfeiture of not less than $10 nor more than $100 for 
each offense. The industrial commission made an order as 
claimed by plaintiff. The apartment building in question 



11] JANUARY TERM, 1916. 107 

Ballard ▼. Bellevue Apartment Co. 162 Wis. 105. 

had several floors besides a basement and sub-basement floor. 
The elevator was operated in an elevator shaft extending from 
such sub>basement floor to those above, and with a door open- 
ing at each level. A person at one floor desiring to use the 
elevator, could, by means of a push-button, conveniently lo- 
cated for that purpose, cause the car to come to his floor, when 
he could unlatch the door of the shaft, enter the car, close the 
door, and by pushing a button inside the car corresponding to 
the floor desired to be reached, cause the car to proceed to 
such floor. There was no door in the side of the car. There 
was an opening which could be used when the car was in 
proper position at a door in the side of the elevator shaft. 
No such door could be opened without the car being in such 
position, nor could the car be moved therefrom until the door 
was closed again. The basement floor and the elevator floor, 
when the car was in position for entrance thereto from the 
former, were separated at the door opening by a space about 
seven eighths of an inch wide. After the car descended below 
the basement floor, the space increased to four and one-quar- 
ter inches wide by reason of there being a recess area under 
such floor of that depth. There was an angle-iron fitted to 
the bottom of the basement floor at the top of the recess and 
to the side of the floor next to the elevator shaft, extending 
up such side and flush with it sufficiently to make an iron 
guarded comer to such floor at the lower side of the elevator 
opening. Such construction permitted one, in riding in the 
elevator car from the sub-basement to the basement floor, to 
project a foot beyond the edge of the car floor into the recess 
under the basement floor, so that when the car floor was about 
to reach such basement floor, where the four and one-quarter 
inch wide recess was sharply narrowed to the seven-eighths 
inch space through such floor, the foot would be caught. 
That was what happened to the plaintiff. 

In addition to the foregoing, there was evidence to this fur- 
ther effect: The elevator was of the ordinary type. It was 
installed by persons experienced in such business. The dan- 



108 SUPREME COURT OF WISCONSIN. [Jan. 

Ballard ▼. Bellevue Apartment Co. 162 Wis. 105. 

ger causod by the unguarded recess mentioned was Buch as 
the order of the industrial commission was intended to rem- 
edy. The plaintiff was a very lively child, and well educated 
for one of her years. She knew how to operate the elevator. 
By a notice, conspicuously posted on the elevator shaft, chil- 
dren under fourteen years of age were prohibited from using 
the elevator except when accompanied by a parent or guard- 
ian- Plaintiff's father, mother, and brother knew of such 
prohibitions. The notice in regard to the matter could read- 
ily have been read by plaintiff. If she had not read it, she 
was perfectly familiar therewith. She had been repeatedly 
notified by her father, mother, and brother to keep out of the 
elevator or she would be liable to get hurt. She had been 
likewise notified by others. On the evening of the accident, 
she was in the sub-basement observing a woman who was 
hanging out clothes to dry. Several other persons, including 
her brother, were present. When the woman was through 
with her work, she started up the stairs, and, as the others, 
except plaintiff, were about to follow, the latter asked one of 
them to go up in the elevator with her. He declined, saying 
to her that it was dangerous and calling her attention, partic- 
ularly, to the prohibition of such children as herself using 
the elevator alone. However, she persisted for the purpose 
of reaching the floor above ahead of the rest. The car was 
at the sub-basement floor or she caused it to come there. She 
hurriedly unlatched the door leading into the car, entered 
therein, and caused the car to ascend. All her movements 
were made in a hurry to accomplish her purpose of reaching 
the floor above ahead of her associates or some one of them. 
After the car started, her right foot slipped, or, in some way, 
was partly projected beyond the edge of the car floor into the 
recess area under the basement floor, so that it was caught at 
the top of such recess and severely injured. She knew very 
well that she was doing wrong in using the elevator. She 
had used it alone before, but not to the knowledge of th^ own- 
ers or managers of the building. 



llj JANUARY TERM, 1916. 109 

Ballard ▼. Bellevue Apartment Co. 162 Wis. 105. 

The jury found, specially, in plaintiffs favor to this effect: 
The elevator was natufally calculated to attract children to 
play therewith and defendant, in the exercise of ordinary 
care, should have known of that fact. Defendant failed to 
exercise ordinary care in not guarding, covering, or inclosing 
the space between the basement floor and the track of the sub- 
basement elevator door. Neither the plaintiff nor her par- 
ents were guilty of any want of ordinary care proximately 
contributing to the injury. Her failure to heed the warnings 
given her did not proximately contribute to the injury. She 
was damaged to the extent of $500. 

A motion on behalf of defendant to change the answers 
given by the jury on the subject of contributory negligence, 
and to render judgment for it on the verdict, so corrected, 
was denied. Judgment was rendered for plaintiff. 

For the appellant there were briefs by Richmond, Jack- 
man & Swansen, and oral argument by Sam T. Swansen. 

For the respondent there was a brief by Gilbert & Ela, and 
oral argument by F. L. Gilbert 

Marshall, J. The main question presented for consid- 
eration on this appeal is whether plaintiff was guilty of con- 
tributory negligence as a matter of law, and as we view the 
evidence bearing thereon, the solution thereof is decisive of the 
case, rendering unnecessary consideration of other matters 
discussed in the briefs of coimsel. 

Notwithstanding the liberal rule in cases of this sort in 
favor of children, respecting responsibility for their acts im- 
periling their personal safety, as indicated in Secard v. 
Rhinelander L. Co. 147 Wis. 614, 133 N. W. 45, and Kelly 
V. Southern Wis. R. Co. 152 Wis. 328, 140 N. W. 60, which 
we will say, in passing, are quite distinguishable from this 
case, circumstances may be such as to conclusively show want 
of ordinary care on the part of a minor, as a matter of law, 
proximately contributing to its injury, as indicated in Ewen 
V. C. £ N. W. R. Co. 38 Wis. 613 ; Strong v. Stevens Point, 



110 SUPREME COURT OF WISCONSm. [Jan. 

Ballard y. Bellevue Apartment Co. 162 Wis. 105. 

62 Wis. 255, 22 N. W. 425; Reed v. Madison, 83 Wis. 171, 
53 K W. 547; Ryan v. La Crosse City R. Co. 108 Wis. 122, 
83 K W. 770. That has been held as to children much 
younger than the respondent was when she was injured. 

The respondent, according to the evidence, was rather 
above the average of children of her age, as to intelligence, 
education, and experience. She knew just as well as an adult 
could have known that she had no business meddling with the 
elevator. She knew and appreciated that children of- her age 
had been prohibited by the proprietor of the building from 
doing so. She knew she was so prohibited in order to safe- 
guard her from being injured. The proprietor had done 
everything which reason required to prevent such children 
from using the elevator without being with adult persons. 
She had been admonished, again and again, by her parents 
and others, not to do so. Just before the particular occasion, 
her attention was directed to the posted rule in respect to the 
matter, and she was warned not to transgress it. Neverthe- 
less, she persisted, fully conscious that she was doing wrong, 
and accepted whatever danger there was involved in her 
transgression. If the law, as heretofore administered, is to 
be maintained, that a minor of the age plaintiff was can be 
guilty of contributory negligence as a matter of law, it seems 
that this case involves such an instance. We are not pre- 
pared to change the long line of decisions on the subject. 
Therefore we have reached the conclusion that respondent 
was guilty of such negligence and that the case should have 
been disposed of below accordingly. 

By the Court. — The judgment is reversed, and the cause 
remanded with directions to change the answers in the special 
verdict so as to favor appellant on the subject of contributory 
negligence of the plaintiff and render judgment thereon dis- 
missing the action with costs. 

Timlin, J., dissents. 



11] JANUAKY TERM, 1916. Ill 

Coombs ▼. Southern Wis. R. Co. 162 Wis. 111. 



Coombs, Bespondent, vs. Southekn Wisconsin Railway 

Company, Appellant 

December 5, 1V15 — January 11, 1916. 

Street railvmys: Reasonable rules: Passenger on rear platform: Re- 
fusal to enter car: Right to eject: Questions for jury, 

1. A rule of a street railway company that "the conductor shall re- 

quest passengers to enter the car and move forward, endeavor- 
ing to keep the rear platform clear at all times/' is a proper and 
reasonable regulation which the conductor is authorized to en* 
force and with which passengers must comply if they can rea- 
sonably do so. 

2. There being ample standing room in the aisle of a car for a pas- 

senger who was on the rear platform, his wilful refusal, when 
requested by the conductor, either to step in or leave the car 
Justified the conductor in attempting to remove him from the 
car; and in an action for an alleged wrongful attempt to eject 
him it was error to submit to the Jury the question whether the 
plaintiff "ought, as a reasonably careful and prudent person, to 
have entered the car" when the conductor requested him to do so, 

3. Where in such case the conductor aided by the motorman wholly 

failed to use sufficient force to overcome the passenger's resist- 
ance, no cause of action for a wanton or reckless assault was 
shown. 

Appeal from a judgment of the circuit court for Dane 
county : E. Kay Stevens, Circuit Judge. Reversed, 

This is an action to recover damages for injuries alleged 
to have been caused by an attempted wrongful ejection of 
plaintiff by one of defendant's conductors from a street car. 
Plaintiff alleges that his hand was cut and torn and that he 
suffered great mortification and injury to his feelings by rea- 
son of such unlawful assault and battery. 

The defendant operates a street-car system in the city of 
Madison. The plaintiff, a man about forty-four years of 
age, boarded one of defendant company's pay-as-you-enter 
street cars at the comer of IngersoU and Jenifer streets of 
the city. Five other persons boarded the car at this point. 



112 SUPREME COURT OF WISCONSIN. [Jaw. 

. \ I ■ ^ I I MM II 111 - ■ - - — - I 

Coombs V. Southern Wis. R. Co. 162 Wis. 111. 

The plaintiff was the last of this group of persons to step into 
the vestibule of the car. The other passengers paid their 
fares and passed from the vestibule into the car. The plaint- 
iff after paying his fare stepped back into the lieft-hand por- 
tion of the rear vestibule and remained standing thera The 
conductor asked the plaintiff to step into the car, but the 
plaintiff indicated that there was no room in the car and 
stated that he would remain where he was. The conductor 
then told plaintiff to step into the car or get off, and that if 
plaintiff did neither he would stop the car and eject plaintiff. 
The plaintiff made no response to this remark of the con- 
ductor, but declined to step into the car. The evidence is not 
clear as to whether the conductor attempted to eject plaintiff 
at the next crossing (Brearly street) or at the third crossing 
(Livingston street). The testimony as to the number of 
people standing in the aisle of the car varies widely ; one wit- 
ness estimates it as high as from twelve to fifteen, while other 
witnesses estimate it at a less number. The conductor 
stopped the car at one of these crossings and told the plaintiff 
to get inside or he would put him off. Plaintiff refused to 
step into the car, whereupon the conductor signaled for the 
motorman to come to the rear platform and then took hold of 
plaintiff and attempted to eject him from the car. He did 
not succeed because of the resistance offered by the plaintiff. 
The motorman advised letting the matter rest for the present 
and reporting it to the inspector upon reaching the business 
district of the city. The conductor then desisted in his ef- 
fort and the plaintiff rode about a mile to his destination in 
the rear vestibule, where the conductor reported the entire 
matter 'to the inspector. The evidence tends to show that 
several passengers got on the car within the next two or three 
blocks after the plaintiiT had boarded the car, while only a 
possible two left the car, and that all of these passengers 
found standing room inside of the car. It also appears that 
there was standing room in the aisle of the car for at least 



11] JANUARY TERM, 1916. 113 



Coombs V. Southern Wis. R. Co. 162 WU. 111. 



eight to ten more passengers when plaintiff was requested to 
step into the car, though the aisle appeared to be filled near 
the entrance where the plaintiff stood. 

The court submitted the case to the jury, who rendered a 
special verdict finding (1) that Mr. Coombs, under the cir- 
cumstances, was not, as a reasonably prudent man, required 
to step into the ear when asked to do so by the conductor; 
(2) that the conductor used more force than was reasonably 
necessary to eject plaintiff from the car; (3) that the con- 
ductor was actuated by malice and vindictiveness in attempt- 
ing to eject the plaintiff; (4) that the defendant company 
ratified such malicious and vindictive action; (5) that such 
malicious or vindictive action on the part of the conductor 
was not within the scope of his employment; (6) assessed 
plaintiff's compensatory damages at $350; and (7) assessed 
plaintiff's punitory damages at $50. The court denied the 
right to punitory damages and judgment was entered for 
the plaintiff in the sum of $350 compensatory damages, to- 
gether with the costs and disbursements of this action. 
From such judgment this appeal is taken. 

For the appellant there was a brief by Jones & Schuhring, 
and oral argument by E. J. B, Schuhring. 

For the respondent there was a brief by Olin, Butler, Steb- 
bins & Stroud, and oral argument by Bay M. Stroud. 

SiEBBCKER, J. The defendant company had adopted the 
following as one of its regulations for the conduct of its busi- 
ness: "The conductor shall request passengers to enter the 
car and move forward, endeavoring to keep the rear platform 
clear at all times." Mr. Montgomery, vice-president and su- 
perintendent, testified that this rule was promulgated and 
enforced to promote safety of passengers and efficiency in 
service in the conduct of the business. An orderly and ex- 
peditious management is essential to carry on a street-car 
business and the requirements imposed on passengers by this 
Vol. 162 — 8 



114 SUPREME COURT OF WISCONSIN. [Jan. 

Coombs V. Southern Wis. R. Co. 162 Wis. 111. 

■ 

rule tend to promote these objects. Yorton v. M.j L. S. & W. 
R. Co. 54 Wis. 234, 11 N. W. 482 ; Bass v. G. & N. W. R. 
Co. 36 Wis. 450. The provisions of the regulation are there- 
fore proper and reasonable and passengers must conform 
therewith under all circumstances and conditions when its re- 
quirements can be reasonably enforced. The question arises, 
Was the plaintiff justified in refusing to comply with the 
conductor's attempted enforcement of the rule at the time 
here in question? It was held in the Yorton Case that the 
conductor in charge of a railroad passenger train has the 
right to eject a passenger from the car when such passenger 
refuses to comply with a reasonable regulation that is sought 
to be enforced for the proper, safe, and eflScient conduct of 
the business. Responsibility for the enforcement of such 
regulation must rest with those who are in control of the busi- 
ness. In this case such duty was imposed on the conductor 
who was in charge of the car, and it devolves upon passengers 
to comply with the conductor's enforcement of the rule if 
they can reasonably do so. "In such cases, as in others, it 
would not comport with the comfort and convenience of the 
passengers, nor always with their safety, for some of them to 
assert their rights with a strong hand. And the safety and 
comfort of the passengers generally are not to give way to the 
safety or convenience of one or of a few." Bass v. G. & N. 
W. R. Co. 36 Wis. 450, 462. It is plain that the conductor 
of the street car in question was vested with the authority of 
the company to enforce the provisions of this regulation and 
that it was incumbent on plaintiff to comply with the con- 
ductor's request to step into the car, unless the facts and cir- 
cumstances of the case show that he could not do so. The 
trial court submitted the inquiry to the jury whether the 
plaintiff "ought, as a reasonably careful and prudent person, 
to have entered the car" when the conductor requested him to 
do so. This direction to the jury is the equivalent of vesting 
the plaintiff with the right to determine whether or not ordi- 



11] JANUARY TERM, 1916. 115 

Coombs V. Southern Wis. R. Co. 162 Wis. 111. 

nary care and prudence required him to comply with the reg- 
ulation under the facts and circumstances, and runs counter 
to the right and authority of the conductor to enforce the 
regulation. The facts and circumstances shown by the rec- 
ord did not justify plaintiff in refusing to comply with the 
request of the conductor to step into the car. It appears 
without contradiction that the car in question had an inside 
aisle capacity of standing room for at least thirty passengers 
and that at the most not to exceed fifteen passengers occupied 
this space when plaintiff refused to comply with the regula- 
tion. It also appears that the four passengers who entered 
the car with the plaintiff readily passed into the aisle and 
that other passengers entered the aisle immediately after 
plaintiff refused to comply with the conductor's request and 
occupied room which had not been occupied by passengers 
leaving the car. It is obvious that there was standing room 
for plaintiff in the aisle of the car when the conductor re- 
quested him to step in. Under the conditions it was his duty 
to comply with the conductor's request or leave the car, and 
hia wilful refusal to do either authorized the conductor to re- 
move him from the car, and the attempted ejection under the 
circumstances was not an unlawful act on the part of the con- 
ductor. It is manifest that the conductor wholly failed to 
use suiEcient force to overcome plaintiff's resistance and that 
plaintiff made no case for a wanton and reckless assault upon 
him. It is considered that the evidence fails to establish a 
cause of action and that the complaint must be dismissed. 

By the Court— ^The judgment appealed from is reversed, 
and the cause remanded to the circuit court with direction to 
award judgment dismissing plaintiff's complaint 



116 SUPREME COURT OF WISCONSIN. [Jaw. 

Haycock ▼. Sovereign Camp, W. O. W. 162 Wis. 116. 



Haycock, Appellant, vs. Sovereign Camp, Woodmen of 

THE WoELD, Respondent 

December 9, 1915 — January 11, 1916, 

Life insurance: Benefit associations: Assessments: Default in pay- 
ment: Advances by clerk: Suspension: Avoiding certificate: 
Agency of clerk: What by-laws may provide. 

1. A member of a benefit association had several times defaulted on 

monthly assessments, but the amounts were advanced by the 
local clerk, whom he repaid. He defaulted on assessment 
No. 260 for May, 1912, and the clerk advanced it for him. He 
also defaulted on assessment No. 261 for June, but this was not 
advanced, and on July 12th the clerk reported him for suspension. 
Two days later the clerk collected from him the amount of as- 
sessments Nos. 260 and 261, including the latter by mistake, 
being under the impression that he had advanced two assess- 
ments since the last payment by the assured. The clerk did not 
remit assessment No. 261, nor report payment thereof, nor re- 
port the assured for reinstatement. The assured also defaulted 
in July and August, and died in September, having made no at- 
tempt to pay the last mentioned assessments. Under a by-law 
providing that failure to pay an assessment results ipso facto in 
suspension of the member and renders his certificate void, sub- 
ject to reinstatement on payment within ten days, held, that the 
default for July and August avoided his certificate, even if the 
association were estopped to take advantage of the June default. 

2. A benefit association may provide, as to the local clerk who is au- 

thorized to collect from members, that notice to him of matters 
not necessarily involved in, or part of, his duty of collection 
and remittance shall not be notice to the supreme lodge; but 
whether it may limit the scope of his agency so that in making 
and remitting such collection he does not act as the agent of 
the association, is not decided. 

3. A benefit association may also provide for a death benefit cover- 

ing only such period as is covered by each successive payment 
and terminating at the end of such period, to be revived for a 
like period by a new payment and reinstatement of the member. 

Appeal from a judgment of the circuit court for Sauk 
county: James O'Neill,, Judge. Affirmed. 

For the appellant there was a brief by Beniley, Kelley <& 
Hill, and oral argument by Frank R. Bentley. 



11] JANUARY TERM, 1916. 117 

Haycock v. Sovereign Camp, W. O. W. 162 Wis. 116. 

For the respondent there was a brief by F. H. Cody, attor- 
ney, and Orotophorstj Evans & Thomas, of counsel, and oral 
argument by Mr, Evan A. Evans and Mr. Cody. 

Timlin, J. This action is by the beneficiary named in a 
death benefit certificate issued by a Nebraska corporation 
called "Sovereign Camp of the Woodmen of the World.'^ 
The defendant is organized on the plan of having one princi- 
pal or head lodge or camp with numerous local or subordinate 
camps, to each of which it issues what is called a charter. 
In the certificate and in the by-laws each member is called a 
sovereign and he is also entitled, in case he has complied with 
all the conditions of the beneficiary certificate and by-laws^ 
to a death benefit ranging from $1,000 to $3,000. The cer- 
tificate in this case was dated August 26, 1911, and the hus- 
band of the plaintiff, "Sovereign Harry C. Haycock," died 
September 21, 1912. Local lodges or camps apparently at- 
tend to the business of collecting and remitting assessments 
to the defendant and also securing members, largely through 
their social and fraternal features. Assessments are made 
monthly. Among the by-laws is one which provides that the 
suspension of a member for nonpayment of assessments oc- 
curs on the first day of the month following default. No no- 
tice of assessment is given by the principal lodge to the mem- 
ber and the local camps have no power of suspension of mem- 
bers. The mere failure to pay an assessment ipso facto causes 
suspension and thereupon the certificate becomes void until 
the member is reinstated. A suspended member may, if he 
is in good health, be reinstated on payment within ten days. 
After that time only on certain proof being made, etc. The 
by-laws also provide that no ofiicer or employee or agent of 
the sovereign camp nor of any camp has the power, right, or 
authority to waive any of the conditions upon which the bene- 
ficiary certificates are issued or to change, vary, oi^ waive any 
of the provisions of the constitution or by-laws. "The clerk 
of a camp shall not by acts, representations, waivers, or by 



118 SUPREME COURT OF WISCONSIN". [Jait. 

Haycock t. Sovereign Camp, W. O. W. 162 Wis. 116. 

vote of his camp, have any power or authority not delegated 
to him or to the camp by the constitution and laws of the or- 
der to bind the sovereign camp or his camp." The organiza- 
tion is quite similar to that noticed in Jones v. Modem B. of 
A. 153 Wis. 223, 140 K W. 1059 ; Knoehel v. North Am. 
Ace. Ins. Co. 135 Wis. 424, 115 N. W. 1094. The con- 
troversy here must be disposed of under the rules of law es- 
tablished by these cases and other complementary cases. We 
find no statute of this state, and we are cited to none, prohib- 
iting the enactment of such laws or the making of such a con- 
tract by fraternal or mutual benefit corporations. 

Deceased defaulted nearly every month from the date of 
the certificate, but payments were for a time advanced for 
him by the clerk of the local camp, whom he repaid. Assess- 
ment No. 260 for May, 1912, was unpaid and the local clerk 
advanced this for deceased. Deceased also defaulted on the 
June assessment, No. 261, and this was not advanced. On 
July 12, 1912, deceased was by the local clerk reported for 
suspension on this last default. Two days after the local 
clerk collected from deceased the amount of assessments 
Nos. 260 and 261, including the latter by mistake. The sec- 
retary thought he had since last payment by assured advanced 
two assessments for deceased, but he had in fact advanced 
only the May assessment. No. 260. The secretary did not 
remit to the chief lodge assessment No. 261, nor report any 
payment, nor report deceased for reinstatement. But de- 
ceased also defaulted in July and August and made no at- 
tempt to pay and no inquiry concerning his membership after 
July 14, 1912. 

We need not in this case decide how far the defendant 
might go in authorizing the local clerk to collect from mem- 
bers and at the same time limit the scope of his agency so 
that in making and remitting such collection he did not act 
as agent of the defendant. In the state of defendant's domi- 
cile, Henton v. Sovereign Campj W. 0. W. 87 Neb. 552, 127 



11] JANUARY TERM, 1916. 11» 

Haycock v. Sovereign Camp, W. O. W. 162 Wis. IIG. 

N. W. 869; and elsewhere, Murphy v. Independent Order, 
etc. 77 Miss. 830, 27 South. 624, 50 L. R A. Ill; Modem 
Woodmen v. Tevis, 117 Fed. 369; Knights of Columbus v. 
Burroughs' Beneficiary, 107 Va. 671, 60 S. E. 40, with notes 
in 17 L. R. A. n. s. 246 et seq., — all seem to considerably 
lixait the power. The defendant could at least provide that 
notice to the local clerk of matters not necessarily involved 
in, or part of, his duty of collection and remittance would 
not be notice to the supreme lodge. Jones i\ Modem B. of 
A. 153 Wis. 228, 140 N. W. 1059. It could also provide 
for a death benefit covering only such period as was covered 
by each successive payment and terminating at the end of 
such period, to be revived for a like period by a new payment 
and reinstatement of the member. This it seems to have- 
dona 

When the local secretary advanced the assessments for de- 
ceased he did so as the agent of the deceased. He was not 
boimd to continue making such advances. He failed to ad- 
vance for June and the plaintiflf became suspended July 1st. 
On July 14th, more than ten days after default, he paid the 
June assessment to the local secretary, and the latter by mis- 
take failed to bring this to the notice of the defendant The 
suspension therefore continued. Had the member paid for 
July and August the continuation of this suspension might 
perhaps be challenged; but the ipso facto provisions above 
alluded to would make default for July and August conclu- 
sive even if the defendant were estopped to take advantage 
of the June default. This makes it unnecessary to consider 
rulings on evidence, for the foregoing facts are undisputed* 

By the Court — Judgment affirmed. 



120 SUPREME COURT OF WISCONSm. [Jan. 

Smith ▼. Illinois Central R. Go. 162 Wis. 120. 



Smith, Respondent, vs. Illinois Central Railkoad Com- 
pany, Appellant. 

December 9, 1915-^anuary 11, 1916. 

Railroads: Highway crossing: Insu^g^ciency : Injury to driver of t?e- 
hicle: Contributory negligence: Questions for fury, 

1. A highway east of and parallel with a railroad crossed the track 

diagonally to the southwest at an angle of about twenty-three 
degrees. On each side of each rail was a plank to raise the 
road to the level of the rail, and the space between the Inner 
planks was filled with cinders. Plaintiff with a companion was 
driving southward in a light automobile. They testified that 
at this crossing their car was driven in the traveled track, but 
that the left front wheel struck the inner side of the west rail, 
which deflected the car along the railroad track to the south, 
and that plaintiff having lost control of the car it ran into a 
ditch and she was injured. The evidence as to the condition of 
the plank inside of the west rail was conflicting, but that for 
plaintiff was to the effect that the south end of that plank was 
worn and splintered and that the traveled track of the highway 
extended beyond and to the south of it. Held, that the Jury 
were warranted in finding that the crossing was unsafe and in- 
sufficient. 

2. In view of the acute angle at which the highway crossed the 

track, and the defect being one which might be overlooked or 
its dangerous character not appreciated by a person exercising 
ordinary care, and there being evidence that although plaintiff 
was familiar with the crossing she had theretofore always 
crossed in the other direction, and that a strong south wind was 
raising a dust which made it difficult to see the ground at that 
point, a finding that plaintiff was not guilty of contributory neg- 
ligence was also warranted. 

Appeal from a judgment of the circuit court for Dane 
county: E. Ray Stevens, Circuit Judge, Affirmed. 

Action to recover damages for personal injury. On 
June 27, 1914, plaintiff sustained an injury while driving 
her Ford automobile across the intersection of the Illinois 
Central Railroad tracks and a public highway in the town of 
Fitchburg. The railroad runs nearly north and south and 



11] JANUARY TERM, 191G. 121 

Smith y. Illinois Central R. Co. 162 Wis. 120. 

the highway for Bome distance is parallel to it on the east 
side; it then crosses the railroad diagonally at an angle of 
about twenty-three degrees and parallels it on the west side^ 
There is a slight up grade in the highway to make the cross- 
ing. On both sides of each rail there was a plank to raise 
the road to the level of the rail. The space between the 
planks was filled with cinders. Plaintiff claims that the 
traveled track extended some six or eight inches beyond or 
south of the end of the plank just east of the west rail ; and 
that the end of the plank was rotten, worn, and splintered in 
Buch a manner that it tapered almost to a point She testi- 
fied that she approached the crossing at a speed of not to ex- 
ceed ten miles per hour, and that as she came to the grade 
she slightly increased her speed, but not to over twelve miles 
per hour. She claims she followed the main traveled track 
and that the right front wheel of her car crossed both rails, 
but the left front wheel struck the west rail at or just beyond 
the end of the splintered plank, and instead of going over was 
deflected by the rail and turned the car to the south. She 
lost control of her car and it ran for about thirty feet to the 
south along the railroad with the right wheels on the west 
side of the west rail and the left wheels between the rails. 
It then turned to the left, ran off the railroad track and into 
a ditch, causing injuries to plaintiff. 

The jury found (1) that the crossing was unsafe and in- 
sufficient for public travel; (2) that such unsafe condition 
had existed long enough to give notice thereof to defendant 
in time to repair it before the injury to plaintiff occurred; 
(3) that the unsafe and insufficient condition of the crossing 
was the proximate cause of plaintiff's injury; (4) that plaint- 
iff had no knowledge of the unsafe condition of the crossing 
before she was hurt ; (5) that she was free from contributory 
negligence; and (G) that she sustained damages in the sum 
of $3,500. Judgment for plaintiff was entered upon the ver- 
diet and the defendant appealed* 



122 SUPREME COURT OF WISCONSIN. [Jan. 

■ - IIIB ■ - - 1 ■■ JM ■-■ . ^^ ~ 

Smith V. Illinois Central R. Co. 162 Wis. 120. 

For the appellant there was a brief by Jones & Schubring, 
and oral argument by E. J. B, Schubring. 

For the respondent there was a brief by Hill <& Spohn, and 
oral argument by Carl N. ililL 



YiNJE, J. The acuteness of the angle, about twenty-three 
degrees, at which the highway crossed the railroad is an im- 
portant factor in the consideration of the questions presented 
by the appeal, as it bears upon the sufficiency of the crossing, 
the reasonableness of plaintiffs claim as to how the injury 
occurred, and the question of contributory negligence. As 
to the former it is claimed that since the planks were thirty- 
two feet in length and the traveled track was not to exceed 
ten feet in width, there must have been a cqnsiderable length 
of plank at each end extending beyond the traveled track, or 
if the plank was defective at one end there was ample space 
to cross nearer the other end. If a plank is laid across a 
traveled track ten feet wide at an angle of twenty-three de- 
grees, it will take nearly twenty-six feet to extend across it. 
Assuming the traveled track to be exactly in the center, the 
thirty-two foot plank would at each end extend three feet be- 
yond it But owing to the acute angle, only a relatively 
slight variation in the direction of the traveled track would 
throw it beyond the ends of the planks. Defendant also ar- 
gues that it is highly improbable that plaintiff's car was de- 
flected by the rail as she claims. This would be so if the 
crossing were at right angles or nearly so, as most crossings 
are. But she was attempting to cross at an angle of twenty- 
three degrees. A rail only four or five inches high might 
well deflect a light Ford machine going at the slow speed of 
only about twelve miles per hour under such conditions. 
The right front wheel had crossed the west rail and was pre- 
sumably on relatively smooth ground. The left front wheel 
struck the rail when approaching it at an angle of twenty- 
three degrees, and, the speed being slow and the car light, 



11] JANUARY TERM, 1916. 123 

Smith V. Illinois Central R. Co. 162 Wis. 120. 

the momentum was not enough to carry the wheel over the 
rail. On the contrary the rail deflected the car to the left 
and it ran down the track as plaintiff claims. Unfortu- 
nately she then lost control of it. Otherwise she might have 
escaped without injury. We therefore conclude there is noth- 
ing inherently improbable in plaintiff's claim as to how the 
accident happened. Defendant's theory that she drove the 
car entirely across both rails and in making the turn to the 
left to follow the highway she turned so far as to recross the 
track, is plausible enough also. It might have happened that 
way. But plaintiff and the woman who was with her say it 
did not and the jury evidently believed them. Since the 
physical facts sustain rather than contradict them we cannot 
say the jury was not warranted in finding that the accident 
occurred as plaintiff claims it did. 

As to the sufficiency of the crossing, a number of appar- 
ently credible witnesses testified that the plank just east of 
the west rail was sound, nearly level with the rail, and ex- 
tended beyond the edge of the traveled track. On the other 
hand at least four witnesses testified to the contrary. Mr. 
Reynolds, an electrician and nephew of plaintiff, who to- 
gether with Dr. Ganser, in answer to a phone message from 
her, came to the place of the accident in a short time after it 
occurred and took her and Mrs. Reynolds, the plaintiff's com- 
panion at the time she was hurt, home, and who examined 
the crossing carefully, said the south end of the plank was 
badly worn, split, and slivered, and that the traveled track 
extended from six to eight inches south of it. Dr. Ganser, 
who examined the crossing at the same time that Mr. Rey- 
nolds did, testified: 

"The south end of the plank . . . was worn to a wedge 
both on the flat surface and also on the width of it; in fact 
the corner was worn off. I should sav that two or three 
inches or more of the comer was completely worn off, and 
the rest of it was very thin and came to a point like a sliver. 
It appeared as though a part of the plank had already been 



124 SUPKEME COURT OF WISCONSIN". [Jan. 

Smith V. Illinois Central R. Co. 162 Wis. 120. 

worn awsLy'y and it was splintered and seemed to have been 
partly filled with dust, and the end of the plank showed that 
it had been worn off. The traveled portion of the road ex- 
tended considerably beyond the end of the plank, so that the 
south end of this plank terminated in the traveled track, 
while the track extended beyond the end of the plank for a 
distance of a foot or better." 

Mrs. Reynolds testified: 

"I was with Mrs. Smith from the time she started on this 
trip until I went into the ditch, and we were not exceeding 
eight miles an hour at the time she came to the crossing in 
question. The speed was increased a little as we came to 
the crossing on account of taking that grade. As we came 
to the crossing I was looking both ways for the train and 
listening and we were following the road straight ahead of 
me. We were driving right in the road as we came up on to 
the crossing and I am sure of that. It was right in the road 
as we were crossing the crossing that all at once we hit some- 
thing hard, and the next thing I knew I was rigid and we 
were in a bank down in a hole. The auto turned very sud- 
denly to the left. We bounded and I was rigid with fright 
until we landed in the ditch, and all I can remember is clos- 
ing my eyes and waiting for the crash." 

Plaintiff testified: 

"Before 1 left that day I made an observation of the track 
and road there. I walked up there with Dr. and Mr. Rey- 
nolds and I saw that I was in the beaten track. W^hile I 
made this observation I could see mv left front wheel track 
in the dust and where it struck the rail. 

"Q. Did you make any observation of the plank that was 
on the north side of the south rail ? A . Yes, sir. 

'"Q. That's the plank on the inner side of the rail that you 
struck i A, Yes, sir. 

''Q, Just tell the jury what you observed. A. I seen a 
very worn out rotted plank, with a big bolt sticking up 
through it, and it was too short to reach the middle of the 
track. 

"Wlien I speak of the traveled track I am referring to the 
entire track where the wheels run on the left side of the road. 
The left wheels on the vehicles that passed there traveled 



11] ^JANUARY TERM, 1916. 125 

Smith V. Illinois Central R. Co. 162 Wis. 120. 

over a space of two and one-half to three feet. I was right 
in the traveled track when I struck the rail. The left end 
of the plank, that is on the north side of the south rail, waa 
about six to eight inches, I believe, from the outer edge, of 
the traveled wheel track, and the condition of it was slivered 
and broken and sort of rotten where the wheels had struck it 
and slipped off and wore it down to a point. The rail on the 
roadbed which I struck had no filling at all beyond the end 
of the plank, as the filling was in the middle of the roadbed." 

Mr. Penfield, a farmer living about a mile from the cross- 
ing and apparently a disinterested witness, who had driven 
over it about once a week and had made an examination of it 
shortly after hearing of the accident, thus describes the con- 
dition and location of the plank : 

"The south end of the plank appeared worn off and split 
where the travel had worn it down, and where the wheels 
would strike it it was cracked and splintered up. This con- 
dition was caused from traffic, dragging, and the wheels also 
caused it to wear off. It was worn off at the end of the 
plank, tapered down, and this condition existed about two 
and one-half feet from the end of the plank, where it tapered 
off. The south end of the plank terminated six or eight 
inches invside of the travel where the wheel would strike in 
relation to this left traveled wheel-track." 

It thus appears that there was a sharp conflict in the testi- 
mony as to the sufficiency of the crossing. The jury re- 
solved such conflict in favor of the plaintiff and the trial 
•court refused to disturb the conclusion thev reached. There 
being nothing inherently incredible or impossible in the tes- 
timony supporting the judgment in this respect, the finding 
of the jury and the action of the trial court thereon are con- 
clusive upon tlie parties. 

Plaintiff was a married woman fiftv-nine vears old and 
had acted as substitute rural mail carrier for from fourteen 
to sixteen years prior to her injury and was accustomed to 
■drive horses and her Ford automobile. She had substituted 
on seven different rural routes and was quite familiar with 
the crossing in question, though she had invariably up to the 



126 SUPREME COUET OF WISCONSIN. [Jan.. 

Smith V. Illinois Central R. Co. 162 Wis. 120. * 

day of the injury driven north over it instead of south. De- 
fendant urges that in view of plaintiff's familiarity with the- 
crossing, the ease with which the alleged defect could be ob- 
served by one driving a car on approaching the track, and the 
ample room on the west to cross safely, she should be held 
guilty of contributory negligence as a matter of law. Plaint- 
iff claims that on the day in question there was quite a strong 
south wind blowing which would raise the dust in the road 
and make it difficult to see the ground ahead of the car ; and 
that it was particularly so just at the crossing owing to the 
dust from fine cinders that had been placed over and beyond, 
it on both sides. Be this as it may, we think the defect it- 
self was one that a person exercising ordinary care might 
overlook, or if seen he might not at once appreciate the dan- 
gerous character thereof. With a crossing at right angles 
or nearly so, the condition of the plank might not even con- 
stitute a defect But in a crossing at an acute angle of 
twenty-three degrees, any material depression next to the 
rail would become quite a serious defect because of the dif- 
ficulty of getting the wheel over the rail. Any one who has 
driven a vehicle nearly parallel to a street-car track, even 
where the rails project but an inch or two, and attempted to* 
cross will appreciate the trouble caused by a slight depression^ 
next to the rail. The wheel of the vehicle drops into it and 
the rail tends to deflect the wheel and make it parallel the 
track. In view of all the conditions existing at the crossing 
as shown by plaintiff's evidence it cannot be said that the 
jury had no basis upon which to predicate absence of contrib- 
utory negligence. 

A number of alleged errors in the exclusion of evidence, 
instructions given, refusal to instruct, remarks of plaintiff's^ 
counsel to jury, and excessive damages have been carefully 
considered. None of them justify a reversal or modification.- 
of the judgment and none appear of sufficient importance to- 
require treatment. 

By the Court. — Judgment affirmed. 



11] JANUARY TEIIM, 1916. 127 



Milwaukee v. Railroad Commission, 162 Wis. 127. 



-City op Milwaukee, Appellant, vs. Eailboad Commission 

OP Wisconsin, Respondent. 

December 10, 1915— January 11, 1916. 

^Railroad commission ,\Abolishing grade crossings: Apportionment of 
cost: Constitutional law: Police power: Delegation of legislative 
power: Police regulations in railroad charters may he changed: 
Statutes: Construction: Effect on city charters, etc. 

1. Sec. 1797 — 12e, Stats. 1913,— authorising the railroad commission 
to order alterations made in any railroad crossing over a high- 
way, or the substitution of a crossing not at grade when public 
safety requires such alteration or substitution, and to appor- 
tion the cost between the railway company and the municipality 
in interest, — is a valid exercise of the police power of the state 
and does not unlawfully delegate legislative power to an admin- 
istrative body. Polk v. Railroad Comm. 154 Wis. 523, followed. 

'2. A provision in the original charter under which a railroad was 
built that the road should be so constructed as not to impede 
or obstruct the free use and passage of any public roads which 
may cross the same, "and in all places where said railroad 
may cross or in any way interfere with any public road, it sliall 
be the duty of said company to make, or cause to be made, a suf- 
ficient causeway or passageway, to enable all persons passing or 
traveling such public road to pass over or under such railroad," 
did not by acceptance of the charter become a contract, but was 
a mere police regulation imposed by the state in the interest of 
public safety, which the state might at any time change. 

'S. The Intent of the legislature in the enactment of ch. 540, Laws 
1909 (relating to railroad crossings), of which sec. 1797 — 12e 
formed a part, was to make a uniform and exclusive system ap- 
plicable to all cities and other municipalities, and to amend all 
previQus provisions on the subject, whether contained in city 
charters, railroad charters, or the general statutes of the state. 

Appeal from an order of the circuit court for Dane county : 
IE. Ray Stevens, Circuit Judge. Affirmed. 

Upon the petition of the city of Milwaukee the Railroad 

Commission ordered the Chicago, Milwaukee & St. Paul 

Railway Company to depress its main track, switch tracks, 

and sidetracks at and between certain street crossings in said 

-city, being a distance of nearly two miles, so that the grade 



128 SUPREME COURT OF WISCONSIN. [Jan^ 

Milwaukee ▼. Railroad Commission, 162 Wis. 127. 



of the tracks should be separated from the grade of the 
streets, the tracks being carried in a subway and the streets 
being carried on bridges across said subway, and further or- 
dered the city to pay twenty-five per cent, of the cost of the- 
work, the railway company seventy per cent., and the Mil- 
waukee Electric Railway & Light Company five per cent. 
The order was made because, in the judgment of the Com- 
mission^ public safety required the abolition of grade cross- 
ings. The city brings this action to set aside that part of 
the order assessing twenty-five per cent, of the cost of the 
work against the city of Milwaukee, and from an order sus- 
taining a general demurrer to the complaint the city appeals. 

Daniel W. Hoan, city attorney, for the appellant. 

For the respondent there was a brief by the Attorney Oen- 
eral and Walter Drew, deputy attorney general, and oral ar- 
gument by Mr, Drew. 

C, H. Van Alstine, as a friend of the court. 

WiNSLOw, C. J. The order of the Railroad Commission 
in question here was made pursuant to the provisions of sea 
1797 — 12e, Stats. 1913, which authorizes that Commission, 
upon the petition of the governing body of any city, town, or 
village, to order alterations made in any railroad crossings 
over a highway, or the substitution of a crossing not at grade, 
where public safety requires such alteration or substitution, 
and to fix the proportions of the cost thereof to be paid by. 
the railroad company or companies and th^ municipality or 
municipalities in interest. This is the same statute which 
was sustained and enforced in the case of Polk u. Railroad 
Comm. 154 Wis. 523, 143 N. W. 191, and we regard the de- 
cision there made as decisive of the present case. 

The cases are alike in all essential particulars. While no 
constitutional objection was urged by counsel in that case, 
the question was carefully considered by the court, and, after 
hearing the argument in the present case, we see no reason 



11] JANUARY TEEM, 1916. 129 

Milwaukee v. Railroad Commission, 162 Wis. 127. 

to retract or qualify in any way the statement there made 
that ''the legislature in the exercise of its police power had a 
perfect right to enact the law.'^ 

The time has gone by when it can be successfully claimed 
that such a law unlawfully delegates legislative power to an 
administrative body. The legislature has exercised the leg- 
islative function by declaring that unsafe crossings shall be 
made safe; it can properly delegate to an administrative 
board the power to ascertain the crossings which are in fact 
unsafe, and to prescribe the manner of making them safe. 
If this could not be done the police power would be unable 
to cope with many of the most serious problems of modern 
life. Minneapolis, 8L P, & S. 8, M, R. Co, v. Railroad 
Comm. 136 Wis. 146, 116 N. W. 905 ; State ex rel N. P. R. 
Co. V. Railroad Comm. 140 Wis. 145, 166, 169, 121 K W. 
919. 

It is argued that the present case is essentially different 
from the Polk Case by reason of the fact that the original 
charter of the Milwaukee and Waukesha Railroad (Terr. 
Laws 1847, p. 194), under which the railroad in question 
was built, provided that the road should be so constructed as 
not to impede or obstruct the free use and passage of any 
public roads which may cross the same, ''and in all places 
where said railroad may cross or in any way interfere with 
any public road, it shall be the duty of said company to make, 
or cause to be made, a sufficient causeway or passageway, to 
enable all persons passing or traveling such public road to 
pass over or under such railroad." The claim is that by the 
acceptance of the charter this provision became a contract 
which cannot be impaired by any subsequent law. This po- 
sition is untenable. If a contract at all, it was a contract 
with the state and not the city ; but it was not in fact a con- 
tract, but a police regulation imposed by the state in the in- 
terest of public safety, which' the state might at any time 
change. The state could not contract away its power to 
Vol. 162 — 9 



130 SUPEEME COURT OF WISCONSIN. [Jan. 

Milwaukee v. Railroad Commission, 162 Wis. 127. 

make such regulations, nor incapacitate itself from making 
such changes in them from time to time as the public neces- 
sities require. Chicago, M. & St, P. B. Co, v. MUwavJcee, 
97 Wis. 418, 72 N. W. 1118. 

We entertain no doubt that the intent of the legislature in 
passing the act of which the section in question forms a part 
(ch. 540, Laws 1909) was to make a uniform and exclusive 
system applicable to all cities and other municipalities and 
to amend all previous provisions on the subject, whether con- 
tained in city charters, railroad charters, or the general stat- 
utes of the state. 

The law seems to be the fruit of an honest and enlightened 
attempt on the part of the legislature to deal equitably and 
fairly with a great municipal problem. 

MUwavkee has during the last half century become a great 
and prosperous city. Its greatness and prosperity have come 
because of its commerce, and its commerce has come largely 
because of its railroads. Without them Milwaukee as we 
know it today would not exist. The growth of the city and 
of the rfiCilroads has been coincident, interdependent, insep- 
arable, and from this growth has arisen the great danger of 
the grade crossing. Why should not the expense of remov- 
ing that danger be equitably shared by the different agencies 
whose joint growth has brought it about ? 

There are no further contentions which seem to us of suf- 
ficient importance to require treatment 

By the Court. — Order affirmed. 



11] JANUARY TERM, 1916. 131 

Fergen v. Lyons, 162 Wis. 131. 



Feboen, Respondent, vs. Lyons and others. Appellants. 

Decemher 10, 1915—Janwiry 11, 1916. 

Landlord and tenant: Covenant for renewal: Specific enforcement: 
Certainty: Construction: Tender of payment: Waiver: Failure 
to pay rent, when defeats covenant to renew. 

1. A covenant to renew a lease, if the terms are definitely fixed, or 

means are provided whereby they may be made certain by con- 
struction, is enforceable. 

2. In a lease of a farm for one year, a clause providing that the 

lessee "has the first privilege of renting the farm if not sold at 
the end of the year" is held susceptible of being made certain 
by the application of settled rules for construction. 

3. Reading* such clause in the light of all the terms of the lease and 

the circumstances characterizing its making, and applying the 
rule that a meaning should be ascribed thereto which will sus- 
tain it as a binding promise for a renewal if that can reasonably 
be done, it is held to have the effect of a general promise to re- 
new, at the lessee's option, in case of the farm not being sold be- 
fore the end of the first term, if the lessor concluded to lease it 
for the succeeding year. 

4. Such a general promise, subject to the contingencies mentioned, 

would call for a new lease for a year on the same terms as the 
original lease, but without any covenant for further renewal. 

5. Tender of the down payment required for a renewal lease was 

not necessary, before bringing an equitable action on the cove- 
nant to renew, where the lessors had voluntarily disabled them- 
selves from keeping the covenant before the renewal lease was 
demandable, thus in effect waiving the tender. 

6. Failure of the lessee to pay the rent when due under the original 

lease does not work a defeasance of a covenant to renew which 
is not in any way made conditional or dependent upon such pay- 
ment. 
Babnbs, Siebeckeb, and Kebwin, J J., dissent. 

ArPEAii from an order of the circuit court for Dane county : 
E. Ray Stevens, Circuit Judge. Affirmed. 

Action for specific performance. There was a general de- 
murrer to the complaint which was overruled. 



132 SUPREME COURT OF WISCONSIN. [Jam. 

Fergen v. Lyons, 162 Wis. 131. 

• The plaintiff, with some other matters not material to be 
stated, pleaded the following for a cause of action : 

Defendants Nellie Lyons, Oeorge, J. S,, Nettie, Frank, 
Edward, and Charles Grady, April 1, 1914, rented their 
farm to the plaintiff for the term of one year. The lease 
was in writing, the body thereof being as follows : 

"The said party of the first part doth lease, demise and let 
unto the said party of the second part the following described 
premises : 

"A certain farm lying in the towns of Fitchburg and 
Madison, consisting of about 278 acres of land, and famil- 
iarly known as the Grady farm, in the towns of Fitchburg 
and Madison, county of Dane, and state of Wisconsin. The 
farm is rented for one year from date, for six hundred ($600) 
dollars, one hundred ($100) dollars cash, three hundred 
($300) dollars about November 1st, and the other two hun- 
dred ($200) dollars before the time is up. 

"All grass seed to be sowed to be furnished by the said first 
party. Fence repairing to be done by the party of the second 
part, and material furnished by the party of the first part. 

"The party of the second part has the first privilege of 
renting the farm if not sold at the end of the year." 

Immediately after the lease was executed, plaintiff took 
possession of the leased premises and has since occupied the 
same. He has carried on the farm and expended money in 
respect thereto with a view of a second term, particularly by 
seeding sixty-five acres to grass. Relying on the privilege 
of a renewal, he has not put his own farm into proper condi- 
tion for occupancy for the season of 1915. Failure of the 
lessors to keep their covenant for a renewal term will work 
irreparable injury to plaintiff. By reason of the farm not 
having been occupied for some time prior to plaintiff's term, 
the sum of $600 was a higher rental than would ordinarily 
be demanded for a single-year lease, which was the reason 
why the plaintiff was given the right to renew the lease, pro- 
viding the farm was not sold. 

Some time in February, 1915, or at some later date, the 



11] JANUAKY TERM, 1916. 133 

Fergen v. Lyons, 162 Wis. 131. 

lessors, by their duly authorized agent, leased the farm, on 
terms unknown to the plaintiff, to John and Sadolf Swenson, 
and on the 6th day of March thereafter, plaintiff received no- 
tice to vacate the premises. When the Swensons took their 
lease, they had notice of plaintiff's rights. He had paid and 
tendered to the agent of the lessors all the rent agreed upon 
according to the terms of the lease, except $400 which he 
tendered to the lessor's agent on condition of his receiving a 
renewal lease. On the 1st day of April, 1915, he duly de- 
manded such renewal lease for one year from that date, and 
the same was refused. Plaintiff is now ready and at all 
times has been ready to pay the $400, provided he secures a 
renewal of the lease according to its terms. 

For the appellants there was a brief by Aylward & OJr 
brick, and oral argument by M. B. Olbrich. 

For the respondent there was a brief by HUl & Spohn, 
and oral argument by W. H. Spohn. 

Mabshall, J. A covenant to renew a lease, if the terms 
are definitely fixed, or means are provided whereby they may 
be made certain by construction, is enforceabla This court 
considered that subject at length in Kollock v. Scribner, 98 
Wis. 104, 73 N. W. 776, where the following rules were de- 
duced from the authorities : A covenant to renew a lease calls 
for a new lease, — ^not an extension of an old one. An un- 
qualified covenant to renew a lease calls for a new lease for 
the same period and upon the same terms as the original lease, 
except the agreement to renew. "When the agreement for a 
renewal contains language other than that appropriate to a 
general promise, so that, by resort to the settled rules for 
construction, the language of the covenant to renew and con- 
ditions of the renewal cannot be made certain, then such cove- 
nant fails for want of certainty." 

The promise to renew in this case is in language, not 
strictly appropriate to a general agreement to renew. It is 



134 SUPREME COURT OF WISCOIfSm. [Jan. 

Fergen v. Lyons, 162f Wis. 181. 

ambiguous. Therefore the question arises whether it can 
be made certain by settled rules for construction. 

One of the best known rules for construction is that it must 
be presumed parties, in making a contract, intended to use 
language effectively in all parts of it. Therefore, the instru- 
ment should be so construed as, if possible, to carry out such 
purpose. Jacobs v. Spalding, 71 Wis. 177, 36 N. W. 608 ; 
Hichs P. Co. V. Wis. Cent. B. Co. 138 Wis. 584, 120 N. W. 
612; Burgess v. Dane Co. 148 Wis. 427, 134 N. W. 841. 
So if the agreement to give the respondent the first privilege 
of renting the farm, if not sold at the end of the year, can 
reasonably be read as an agreement upon the contingency 
mentioned to give a renewal for another year on the same 
terms as those of the original lease, that must be preferred to 
any meaning which would involve fatal uncertainty. 

Another well known rule for construction is that a clause 
of a contract which is ambiguous by itself, must be read in 
connection with the rest of the instrument so as to clear up 
the uncertainty, if possible. Chicago, M. & St. P. B. Co. v. 
H. W. Wright L. Co. 123 Wis. 46, 100 N. W. 1034 ; Jacobs 
V, Spalding, supra. Applying that, our attention is at- 
tracted to those portions of the lease which indicate that it 
was contemplated respondent should incur expense which 
could not be beneficial to him without his carrying on the 
farm for a second term, and the broad discretion given him 
in respect to farming the land with reference to a future sea- 
son. He agreed to do all the work of repairing the fences 
and was allowed free hand as to seeding the land to grass. 

Another rule for construction is that a contract may be 
read in the light of the circumstances characterizing its mak- 
ing for the purpose of clearing up ambiguities. Within that 
rule, the allegation of the complaint falls that the rent stipu- 
lated in the lease was disproportionate to the advantages of 
a one-year lease. 

The way the parties understood the lease in performance 



11] JANUARY TERM, 1916. 135 

Fergen v. Lyons, 162 Wis. 131. 

of its terms is another consideration. Respondent prepared 
sixty-five acres of the plow land for the next year's work by 
seeding the same to grass and appellants co-operated with 
him in the matter. It was argued that this. was a trifling 
matter, but we do not so regard it In seeding down the 
land to grass, respondent may well have been to considerable 
expense in properly preparing it so as to secure a good catch 
and put the surface in proper condition for a good hay crop 
and for advantageously harvesting the same. 

Another and very important rule in such cases as this is 
that, in case of any ambiguity in the provision of a lease in 
respect to a renewal, the construction should be adopted which 
will favor the tenant rather than one which will favor the 
landlord. 24 Cyc. 990, 991. 

There is very little use of citing precedents as controlling 
in a case of this sort The principles must govern. Lan- 
guage which would be involved in fatal ambiguity under 
some circumstances woul<l not under others. A good illus- 
tration of that is Holloway v. Schmidt , 67 N. Y. Supp. 169, 
where a lease for five years contained an agreement that the 
lessee should have "the first privilege of a renewal" and it 
was held, in view of the circumstances characterizing the 
making of the instrument, that "first privilege of a renewal'' 
should be construed to mean that a renewal lease for five 
years on the same terms as those of the original lease would 
be made to the lessee, provided the lessor made a lease. 

Reading the renewal clause in question in the light of all 
the terms of the lease, and the circumstances pleaded and 
which may be proved, characterizing the making of the in- 
strument, and applying thereto the rule that a meaning 
should be ascribed thereto which will sustain it, if that can 
reasonably be done, it is considered that such clause is sus- 
ceptible of being made certain by application thereto of set- 
tled rules for construction. Assuming, as we must, that the 
parties intended to make a binding promise for a renewal of 



136 SUPKEME COURT OF WISCONSIN. [Jan. 

Fergen v. Lyons, 162 Wis. 131. 

the lease, and, looking to all the ciremnatances which have 
been mentioned, it seemfi that the renewal clause will reason- 
ably admit of a construction to the effect of a general prom- 
ise to renew, at the lessee's option, in case of the farm not 
being sold before the end of the first term, and the lessor's 
concluding to lease the place for the succeeding year. Such 
a general promise, subject to the contingencies mentioned, 
would call for a new lease for a year on the same terms as the 
original lease; but without any covenant to again renew. 
That was the view of the trial court and sustains the decision 
that the complaint states a good cause of action for specific 
performance so far as the character of the renewal covenant 
is concerned. 

It is thought that the covenant to renew here, in view of 
all the circumstances appearing by the complaint, expressly 
or inferably, is distinguishable from the cases cited on behalf 
of appellants where fatal uncertainty was found, but if that 
be not so, it must be remembered that some courts treat am- 
biguous renewal clauses in leases with much less favor than 
others and are more inclined to follow precedent than prin- 
ciple. Our purpose is to test the renewal clause by the prin- 
ciples stated in Kolloch v. Scribner, 98 Wis. 104, 73 N. W. 
776, and not to vary therefrom in order to square the de- 
cision with the multitude of existing adjudications dealing 
with such covenants, or to write extensively to point out 
wherein the instant case differs from those relied upon by 
counsel for appellants. It is plain to be seen, however, that 
"with the privilege of longer" as in Howard v. Tomicich, 81 
Miss. 703, 33 South. 493 ; "preference of renting said prop- 
erty so long thereafter as it shall be rented for a store" as in 
Delashmutt v. Thomas, 45 Md. 140 ; "privilege of five years 
longer, he paying additional rent on revaluation," no pro- 
vision being made as to time or manner of revaluation, as in 
Streit V. Fay, 230 111. 319, 82 N. E. 648,— are quite differ- 
ent from "first privilege of renting the farm if not sold at the 
end of the year," as in this case. In neither of the former 



11] JANUARY TERM, 1916. 137 

Fergen t. Lyons, 162 Wis. 131. 

could it be found by construction that the covenant to renew 
contained a general promise on a contingency or otherwise 
for a new lease on the same terms as the old one. The same 
is true of all the other cases cited to our attention, though it 
is shown that in some jurisdictions language of a renewal 
covenant has been held fatally imcertain which has been 
otherwise held elsewhere. 2 Tiffany, Landl. & T. 1521. 

It is contended on behalf of respondent that there was no 
sufficient tender of the down payment required for a renewal 
leasa That is answered by the pleaded fact that appellants 
had disabled themselves from keeping their covenant long 
before the renewal lease was demandable. A tender is not 
necessary, especially in support of an equitable action, where 
the facts show that it would not be accepted or has been prac- 
ticably waived by voluntary disability to do the thing which 
the tender would require to be done. That is equivalent to a 
refusal in advance, of a tender and waives it Potter v. Tag- 
goH, 54 Wis. 395, 11 N. W. 678. "A tender is waived 
where the tenderee makes any declaration which amounts to 
a repudiation of the contract, or takes any position which 
would render a tender, so long as the position taken by him 
is maintained, a vain and idle ceremony." 88 Cyc. 134, C. 
A clearer case of uselessness to make a tender could hardly 
be stated than the one appearing by the complaint. 

The further contention is made that the failure to pay the 
Tent under the original lease, when due, worked a defeasance 
of the renewal covenant. That does not seem so. The cove- 
nant to renew was not made conditional upon anything ex- 
cept the decision of respondent to take a new term, and the 
farm not being sold at the end of the first year. Appellants 
had until the close of the last day of such term to defeat the 
renewal covenant. Therefore respondent's offer to take the 
new term was in ample time in any view of the case. 

Whether the respondent had a right to retain rent due on 
the original contract to secure himself for damages for breach 
of the covenant to renew does not seem to be material. Ap- 



138 SUPREME COURT OF WISCONSIN. [Jan. 

Fergen v. Lyons, 162 Wis. 131. 

pellants had their remedy to recover the rent and respondent 
his for a breach of the covenant for a new lease. The two 
matters seem to be independent of each other. In such a 
case, failure of the lessee to keep some covenant in the origi- 
nal lease is not a defense to an action to compel the lessor to 
perform his covenant to renew. 1 McAdam, Landl. & T. 
(4th ed.) 672. 

The foregoing covers all contentions made on behalf of ap- 
pellants which impress us as requiring discussion. We reach 
the conclusion that the demurrer to the complaint was prop- 
erly overruled. 

By the Court — The order is affirmed. 

SiEBECKEB and Kebwin, J J;^ dissent. 

Barnes, J. (dissenting), I think there is no ambiguity 
in the clause of the lease giving the lessee "the first privilege 
of renting the farm if not sold at the end of the year." As I 
view it, it gave the lessee the privilege of renting, provided 
he was willing to enter into as favorable a lease as any one 
else. This is the plain and obvious meaning of the language 
used. The court construes the language as an agreement to 
renew the existing lease if no sale was made. If this was 
what was intended, it would have been an easy matter to have 
said so. Arbitrary rules of construction are more honored 
' by being breached than by being observed, where they serve 
to defeat the intention of parties to a written contract 



11] JANUARY TERM, 1916. 139 

Murphy Y. Interlake P. ft P. Co. 162 Wis. 139. 



MuBPHY, Respondent, vs. Interlake Pulp & Papeb Com- 
pany, Appellant. 

December 10, 1915— January 11, 1916. 

Master and servant: Injury: Unsafe toorking place: Icy platform of 
crane car: Contributory negligence: Evidence: Sufficiency: Spe- 
cial verdict: Answers by the court: Immaterial questions: Harm- 
less error: Sufficiency of finding: Proximate cause, 

1. In an action by a member of a crane crew for injuries alleged to 
* have been sustained when, as he was passing in the usual way 

from a flat car to the crane car, he slipped and fell by reason of 
the defective and icy condition of the platform or floor of the 
crane car, the evidence is held to sustain findings by the jury 
that defendant negligently failed to maintain plaintlfF's work- 
ing place In as safe a condition as the nature of the employment 
would reasonably permit, and that plaintift was not guilty of 
contributory negligence. 

2. The court may properly answer a question In the special verdict 

as to which there is practically no conflict in the evidence. 

3. In an action based upon the defendant's statutory duty to furnish 

a safe place of employment (sees. 2394 — 48, 2394 — 49, Stats.) a 
question In the special verdict as to whether defendant in the 
exercise of ordinary care ought to have known before the acci- 
dent that the place was not safe, was immaterial; but, the ver- 
dict being complete without it, neither its submission nor the 
correction of a clerical error in its wording after the verdict 
was returned was prejudicial to defendant. 

4. The Jury having found that plaintlfF's place of employment, fur- 

nished by defendant, was not safe, and also (an immaterial 
finding) that defendant ought to have known before the acci- 
dent that It was not safe, a further finding that the facts so 
found were the proximate cause of plaintiffs Injury was a suf- 
ficient finding of proximate cause. 

Appeal from a judgment of the municipal court of Outa- 
gamie county: Thomas H. Ryan, Judge. Affirmed. 

This action was brought to recover damages for personal 
injuries sustained by plaintiff while in the employ of the 
defendant and while working about a locomotive crane in the 
performance of his duties in the yards of the defendant in 



140 SUPREME COURT OF WISCONSIN. [Jan. 

Murphy y. Interlake P. ft P. Co. 162 Wis. 139. 

the city of Appleton, The claim of the plaintiff is based 
upon the alleged failure of the defendant to furnish a safe 
working place. 

The defendant. denied negligence and also set up contribu- 
tory negligence on the part of the plaintiff. The jury re- 
turned the following verdict: 

"(1) Was the plaintiff injured at the time alleged while 
passing over the crane car, on his way to the water tank in 
the performance of his duties? A. Yes. 

"(2) Did employees of defendant's crane car generally in 
the performance of their duties, and to the knowledge of de- 
fendant's superintendent, use, and pass over the crane car 
on their way to the tank when necessity required the taking 
on of water? A, (answered by the court). Yes. 

"(3) Did defendant at the time plaintiff was injured neg- 
ligently fail to maintain that part of the crane car over which 
plaintiff passed in as safe a condition as the nature of the 
employment would reasonably permit ? A. Yes. 

"(4) Ought defendant in the exercise of ordinary care to 
have known before the accident that the platform of said 
crane car was not as free from danger to the safety of em- 
ployees in the performance of their duties or the circum- 
stanpes of employment would reasonably permit and have 
remedied the same ? A, Yes. 

"(5) If you answer either or both of questions numbered 
3 and 4 ^Yes,' then were the facts so found the proximate 
cause of plaintiff's injury ? A. Yes. 

"(6) Did want of ordinary care on the part of the plaint- 
iff contribute to produce his injury? A. No. 

"(7) What sum in money will reasonably compensate the 
plaintiff for the injury by him sustained? A. Three thou- 
sand dollars ($3,000)." 

The defendant moved for nonsuit and directed verdict, 
also made the usual motions after verdict, all of which mo- 
tions were denied and judgment was rendered in favor of the 
plaintiff upon the verdict, from which this appeal was taken. 

C. O. Cannon, attorney, and William Ruger, of counsel^ 
for the appellant. ' 



11] JANUAEY TEEM, 1916. 141 

Murphy v. Interlake P. ft P. Co. 162 Wis. 139. 

For the respondent there was a brief by Bouch, HUton, 
Kluwin £ Dempsey, and oral argument by John F. Kluwiru 

Kbbwiit, J, When this case was here on appeal from an 
order overruling a demurrer to the complaint this court held 
that the complaint stated a good cause of action and did not 
show contributory negligence of plaintiff. Murphy v. In- 
terlake P. <& P. Co. 156 Wis. 9, 145 N. W. 193. The main 
question before us now is whether there is sufficient evidence 
to support the findings of the jury. It is insisted that no 
n^ligence of defendant was shown and that the evidence 
shows as matter of law that the plaintiff was guilty of con- 
tributory negligence. 

Under the express provisions of the statute the defendant 
was bound to furnish a safe place to work, as free from dan- 
ger as the nature of the employment would reasonably per- 
mit. Sees. 2394 — 48, 2394 — 49, Stats.; Sparrow v. Me- 
nasha P. Co. 154 Wis. 459, 143 N. W. 317; Tollman v. 
Chippewa 8. Co. 155 Wis. 36, 143 X. W. 1054. The neg- 
ligence charged in the complaint is that the defendant per- 
mitted the platform or floor of the car upon which the em- 
ployees were required to work to be and remain in a defective 
condition iy reason of the floor of said car being uneven and 
containing depressions and holes which were at the time of 
the injury filled with ice and thereby dangerous; and that 
defendant negligently permitted water used on said crane 
and platform of said car to run over and upon the floor of 
said car and platform thereof and freeze thereon ; that while 
plaintiff was passing onto said crane car in the discharge of 
his duties, and because of the defects and unsafe condition of 
the car, he lost his footing and fell, receiving the injuries 
complained of. The allegations of the complaint are suffi- 
cient to charge the defendant under the statute and authori- 
ties referred to. Murphy v. Interlake P, & P. Co., supra. 
But it is contended that the evidence does not support the al- 



142 SUPREME COURT OF WISCONSIN. [Jan. 

Murphy v. Interlake P. & P. Co. 162 Wis. 139. 

legations of negligence set out in the complaint There is 
direct and positive evidence that while the plaintiff was in 
the discharge of his duties and passing onto the crane car 
from the flat car attached to the crane car, he slipped and 
fell between the cars because of the accumulation of ice and 
defective condition of the floor. We cannot say that this 
evidence is incredible or that the jury and court below were 
wrong in holding that the allegations of the complaint were 
supported by sufficient evidence. There also is evidence 
tending to show that the ice and slippery condition of the 
floor or platform of the crane car were due to the defects in 
the tank and appliance which allowed the water from the 
crane car to escape and flow over the platform, causing the 
ice and slippery condition. The evidence also tends to show 
that the construction of the platform, by reason of a large 
portion thereof being uncovered and only an eighteen-inch 
space extending on either side and a similar space in the mid- 
dle prepared for use by employees in travel over it, rendered 
the working place unsafe or not as free from danger as the 
nature of the employment would reasonably permit. There 
is evidence that it was practicable to cover the openings in 
the floor or platform of the crane car. 

It is also strenuously insisted by counsel for appellant 
that the evidence shows as matter of law that plaintiff was 
guilty of contributory negligence. The jury found against 
the contention of counsel on this point and the court below 
sustained the finding. We think the finding of the jury is 
supported by sufficient evidence, therefore cannot be dis- 
turbed. The evidence shows that the plaintiff went the usual 
and customary way in passing from the flat car onto the 
crane car. It is argued by appellant that the distance be- 
tween the flat car and crane car was four feet and that it is 
unbelievable that a man could step over a four-foot space. 
But there is evidence that the space was much less than four 
feet, viz. between two and one-half and three feet 



11] JANUARY TERM, 1916. 143 

Murphy v. Interlake P. It P. Co. 162 Wis. 139. 

It is also said that the evidence shows that plaintiff said he 
was taking a chance when he stepped onto the crane car. 
The evidence as to whether plaintiff made such statement is 
also in conflict Great stress is laid upon the point that 
plaintiff was guilty of contributory negligence as matter of 
law in crossing from the flat car to the crane car at the point 
where he did and in putting his foot on the four-inch rim 
under the coupling iron. There were two holes on the rear 
end of the crane car some six or eight inches deep, each about 
four feet long and three feet wide and partially filled with 
sand and ice, leaving a. runway on either side and one in the 

a depression about one-half inch deep, inclosed by a four- 
inch rim which extended back of the hole on the rear end of 
the crane car and under the brake rod, the brake rod extend- 
ing a few inches back of and about six inches above the rim. 
There is evidence that plaintiff in passing from the flat car 
onto the crane car placed his foot on this rim opposite the 
hole, slipped into the hole, lost his balance, and felL It is 
claimed by appellant that plaintiff could not have fallen in 
the manner described by him, because the brake rod would 
have prevented his foot going forward into the hole, and that 
he must either have stepped on the rod or tried to place his 
foot on the rim beyond the rod, and that in either case he was 
guilty of contributory negligence. There is evidence that 
the depression in the runways was covered with ice as well as 
the rim and that it was customary for employees, with the 
knowledge of the foreman, to cross from the flat ear to the 
crane car in the discharge of their duties in the manner 
which plaintiff testified he attempted to cross. It is said 
the evidence of plaintiff as to how he fell is absolutely in- 
credible because the coupling rod would have prevented his 
foot from slipping into the hole, his right leg from the knee 
down being at the time he fell in a perpendicular position. 
The evidence tends to show that when the plaintiff placed his 



144 SUPKEME COURT OF WISCONSIN. [Jan. 



Murphy v. Interlake P. & P. Co. 162 Wis. 139. 

right foot on the rim juat before he fell his right leg was pro- 
jected forward at an angle much less than ninety degrees, his 
left foot resting on the flat car about three feet back of his 
right foot, so that when he transferred the weight of his body 
from his left to his right leg the right foot resting on the icy 
rim could have slipped under the brake rod and into the hole 
while the right leg was extended forward. Plaintiff testi- 
fied that when he lifted his left foot his right foot let go and 
that threw his body around between the cars. Upon all the 
evidence it was clearly a question for the jury whether the 
plaintiff was guilty of contributory negligence. 

The defense of assumption of risk was abolished by the 
statute. Sec. 2394 — 1, Stats. ; Murphy v. Interlake P. (6 P. 
Co. 156 Wis. 9, 145 N. W. 193. 

It is also contended that the court erred in answering 
question No. 2. It is said that there was Sufficient conflict 
in the evidence on the point to require submission to the 
jury. We think the evidence is practically undisputed that 
it was the custom of employees in the discharge of their du- 
ties to pass over the crane car on their way to the tank when 
necessity required the taking on of water. We cannot say 
that the court below was wrong in answering the second 
question. 

It is also assigned as error that question No. 4 should not 
have been submitted, and that it was error to amend it It 
seems that after the verdict was returned the court changed 
the word "or' to "as" in the fifth line of the question so as to 
make it read "as the circumstances of employment would 
reasonably permit" instead of "or the circumstances of em- 
ployment would reasonably permit." The question was im- 
material and need not have been submitted. But neither' 
the submission nor the change was prejudicial. The verdict 
was complete without this question. The cause of action is 
based upon a breach of statutory duty. Sparrow v. Menasha 
P. Co. 154 Wis. 459, 143 N. W. 317 ; Murphy v. Interlake 
P. <& P. Co. 156 Wis. 9, 145 N. W. 193. 



11] JANUAKY TEEM, 1916. 145 

Green y. Appleton Woolen Mills, 162 Wis. 145. 

Counsel for appellant complains of the fifth question sub- 
mitted to the jury. They say that the third question is 
framed upon a statement of facts that does not exist, and 
that the fourth question is double, meaningless, and contrary 
to law. The criticism is more technical than substantial. 
As we have seen, the fourth question was not material, but 
the jury^ found the facts covered by it in favor of plaintiff, 
and also found upon sufficient evidence the third question in 
favor of plaintiff. By the fifth question the jury were asked 
whether the facts found were the proximate cause of the in- 
jury, if they answered either or both questions 3 and 4 "Yes." 
They answered the fifth question "Yes." There can be no 
doubt that there was a sufficient finding of proximate cause. 

Some other errors are assigned and discussed by counsel 
for appellant, but we do not regard them of sufficient im- 
portance to call for treatment. We have examined with care 
the record and find no prejudicial error. 

By the Court. — The judgment is affirmed. 



Obeen, by guardian ad litem, Kespondent, vs. Appleton 

Woolen Mills, Appellant. 

December 10, 1915 — January 11, 1916, 

Infants: Guardians ad litem: Appointment: Master and servant: In- 
jury: When Compensation Act applicable: Minors: Prohibited 
employment: Dangerous machinery: Constitutional law: Obli- 
gation of contracts: Police power: Evidence: Competency: Spe- 
cial verdict: Issues: Instructions to jury: Excessive damages, 

1. Sec. 2613, Stats., providing that a guardian ad litem for an Infant 

may be appointed by the court In which the actldn Is prosecuted 
or by a Judge thereof, does not require that such guardian must 
be so appointed. 

2. Where at the trial of an action in circuit court objection was 

Vol. 162 — 10 



146 SUPREME COURT OF WISCONSIN. [Jan. 

Green y. Appleton Woolen Mills, 162 Wis. 145. 

made that plaintiff's guardian ad litem had been appointed by 
the county court, the circuit court might cure the irregularity, 
if any, by appointing the same person and proceed with the 
trial. 

3. Where an employee whose contract of employment was made be- 

fore his employer became subject to the Workmen's Compensa- 
tion Act (ch. 50, Laws 1911) was injured after the employer 
came under that act but before he himself had made an election 
and within the thirty days during which be might do so, the act 
did not apply. 

4. Sub. 2, sec. 1728a, Stats. 1911, prohibiting the employment of 

minors under the age of sixteen years in operating certain dan- 
gerous machinery, including carding machines having live 
rolls into which the hands of the operator might be drawn, is a 
valid exercise of the police power. 
6. In an action for injuries sustained by a minor while employed, in 
Violation of said statute, in operating a carding machine, evi- 
dence that the machine was not dangerous was properly ex- 
cluded. 

6. Such a statute cannot be said to impair the obligation of an exist- 

ing contract of employment of a minor which was not made for 
any definite term; but even if the contract had been made for a 
term extending beyond the time of an accident which occurred 
after the passage of the law, its abrogation by the law was a 
legitimate exercise of the police power. 

7. There being no dispute as to the fact of injury while operating 

the carding machine; the defendant employer being liable be- 
cause it violated the statute; contributory negligence not being 
a defense; and it being obvious that if plaintiff had not been 
employed on the machine he would not have been injured while 
operating it, so that there was no issue as to proximate cause, — 
the trial court properly submitted to the Jury only the question 
of damages. 

8. Where the charge, read as a whole, was fair and correct and not 

at all calculated to mislead the Jury or prejudice the appellant, 
criticism of detached sentences therein is not of consequence. 

9. An award of |4,500 for a severe injury to the arm of a boy under 

sixteen years of age who was employed in operating a carding 
machine in violation of law, is held not so excessive that this 
court should interfere. 

Appeal from a judgment of the circuit court for Outa- 
gamie county: John Goodland, Circuit Judge. Affirmed. 

On October 13, 1911, plaintiff was employed by the de- 
fendant and was fifteen years old. He was injured while 



11] JANUARY TERM, 1916. 147 

Green y. Appleton Woolen Mills, 162 Wis. 145. 

-engaged in the operation of a carding machine, and brings 
this action to recover damages for such injury. The ma- 
chine at which he was employed consisted of a large middle 
or center roller, around which revolved a number of smaller 
rollers, the surface of the smaller rollers being coated with a 
wire mesh, brush-like with very small teeth, and by means of 
this combination of rollers the wool was drawn into the ma- 
chine and combed or carded. In front of the carding ma- 
chine there was a rack upon which there were a number of 
revolving spools, and from these spools strands or roves of 
wool were fed into the machine. It was the dutv of the 
plaintiff to take care of the wool as it traveled from the 
spools to the machine and when the roves broke to feed them 
in between the fingers or guides near the bottom of the ma- 
chine, from which place the strands of wool were again 
picked up by the rollers. While engaged in this work his 
left arm came in contact with the rollers and was drawn in 
and injured. 

The amended complaint charged the defendant with lia- 
bility by reason of its failure to warn plaintiff of the danger 
incident to his employment, alleged that the machine was de- 
fective and unsafe and not properly guarded, and that the 
carelessness and negligence of the defendant in this respect 
was the proximate cause of plaintiff's injury. The com- 
plaint also alleged that defendant had not come under the 
provisions of ch. 50, Laws 1911, and that plaintiff had not 
accepted the provisions of said act. The amended answer 
denied liability on the part of the defendant and alleged con- 
tributory negligence on the part of plaintiff, alleged that the 
defendant had elected to come under the provisions of ch. 50 
of the Laws of 1911, and that plaintiff had come under said 
act, and that ch. 479, Laws 1911, was unconstitutional. 

The following special verdict was returned, all of the ques- 
tions being answered by the court except the question of dam- 



"(1) Did the plaintiff on October 3, 1911, receive an in- 



148 SUPREME COURT OF WISC0NSI:N^. [Jan. 



Green v. Appleton Woolen Mills, 162 Wis. 145. 



jury to his left arm while in the defendants employ? 
A. (by the court). Yes. 

"(2) Was the plaintiff at the time of the injury a boy 
under the age of sixteen years? A. (by the court). Yes. 

"(3) Was the plaintiff at the time of the injury assisting 
in operating a carding machine in the mill of the defendant % 
A. (by the court). Yes. 

"(4) Was the plaintiff at the time of the injury employed, 
suffered, and permitted by the defendant to assist in operat- 
ing a carding machine? A. (by the court). Yes. 

"(5) At what sum do you assess the damages of the plaint- 
iff ? A. Four thousand five hundred dollars ($4,500)." 

From a judgment entered on such verdict defendant ap- 
peals. 

For the appellant the cause was submitted on the brief of 
Francis 8, Bradford. 

For the respondent there was a. brief by Rooney £ Orogan, 
attorneys, and Oreene, FairchUd, North, Parker & McOHr 
Ian, of counsel, and oral argument by /. H. McOUlan. 

Barnes, J. The appellant argues that the judgment is 
erroneous (1) because no guardian ad litem was properly ap- 
pointed; (2) because the case falls within the Workmen's 
Compensation Act ; (3) because so much of sub. 2, sec. 1728a, 
Stats. 1911 (ch. 479, Laws 1911), as prohibited the employ- 
ment of minors under the age of sixteen years in operating 
carding machines is void as to defendant, in that it impaired 
the obligation of a contract; (4) because such portion of said 
act denies due process of law, in that it is arbitrary and not 
the result of a legitimate exercise of the police power, and is 
therefore void; (5) because defendant was not permitted to 
offer evidence to show that carding machines like the one in 
question were not dangerous; (6) because the special verdict 
is incomplete, in that it fails to find negligence, proximate 
cause, or that the machine was a dangerous one, or one on 
which a minor under the age of sixteen years might not be 



11] JANUARY TERM, 1916. 14^ 

Green v. Appleton Woolen Mills, 162 Wis. 145. 

employed under the statute; (7) because the court erred in 
charging the jury; and (8) because the damages are excess- 
ive. 

The guardian ad litem was appointed by the county court, 
and it is claimed that under sec. 2613, Stats., the appoint- 
ment should have been made by the court or a judge of the 
court in which the action was to be prosecuted. On objec- 
tion being made on the trial, the circuit court named the ap- 
pointee of the county court as guardian and ordered the trial 
to proceed. 

Sec. 2613 provides that the guardian may be appointed by 
the court in which the action is prosecuted or by a judge 
thereof. It does not require that a guardian must be so ap- 
pointed. But if there was any irregularity about the ap- 
pointment it did not affect the cause of action, but amounted 
to a disability to bring it, and the court clearly had the right 
to appoint a guardian on the trial and proceed to try the ac- 
tion. Hepp V. Huefner, 61 Wis. 148, 20 K W. 923 ; Sabine 
V. Fisher, 37 Wis. 376 ; Redlin v. Wagner, 160 Wis. 447,. 
162 N. W. 160 ; Hafem v. Davis, 10 Wis. 501 ; Smith v. 
Peckham, 39 Wis. 414, 418; M^ebber v. Ward, 94 Wis. 605,. 
69 N. W. 349. 

On October 2, 1911, the defendant elected to come under 
the provisions of the Workmen's Compensation Act. The 
accident happened on the day following. The plaintiff had 
not exercised his right of election. It is obvious that the act 
did not apply to him, because his contract of employment was 
made before the employer became subject to the terms of the 
act, and the thirty days within which he might make an elec- 
tion under sub. (2) of sec. 2394 — 8 had not expired when he 
was injured. 

We shall spend little time in discussing the constitutional 
questions. The right of the legislature to prohibit the em- 
ployment of minors around dangerous machinery, who have 
not reached the age of sound discretion, is recognized by the 



150 SUPREME COURT OF WISCONSIN. [Jan. 

Green y. Appleton Woolen Mills, 162 Wis. 145. 

courts generally, if not universally. It has been recognized 
by this court at all times and in numerous cases. Primarily 
it is for the legislature to say when the youthful mind and 
judgment become suflSciently mature so that a minor may 
properly be permitted to engage in a hazardous occupation. 
The limit here has been fixed at the age of sixteen, and the 
lawmaking power was acting clearly within its discretion in 
placing it there. So, too, the legislature were justified in 
putting a machine having live rolls into which the hands of 
the operator might be drawn, such as the carding machine in 
•question, on the prohibited list, and the court properly re- 
jected testimony tending to show that the machine was not 
dangerous. The fact of injury would seem, in a measure at 
least, to demonstrate the necessity for and wisdom of the law. 
Perhaps as many cases of injuries caused by live rolls have 
come before this court as can be charged up to any other one 
cause, and in many of the cases the argument has been ad- 
vanced in good faith that the machine was absolutely safe. 
If the statute had simply forbidden the employment of the 
minor at a dangerous machine, the question whether the ma- 
chine was dangerous would ordinarily be for the jury. But 
legislators, bringing to bear their knowledge and experience, 
may very properly place machines having power-driven rolls 
so located that the operator may get caught in a class of ma- 
chines which those under sixteen years of age may not oper- 
ate. 

We do not find any evidence that the contract of employ- 
ment was for any definite period of time, and hence do not 
see where the matter of violating any contract arises. The 
extent to which a minor may bind himself by contract is pe- 
culiarly within the field of legislative discretion. If the con- 
tract was made before the 1911 law was passed and extended 
beyond the time of the accident, the legislature might in the 
legitimate exercise of the police power abrogate it. Manito- 
woc V. Manitowoc & N. T. Co. 145 Wis. 13, 129 N. W. 926. 



11] JANUARY TERM, 1916. 151 

Oreen v. Appleton Woolen MillB, 162 Wis. 145. 

The only question the jury was asked to pass upon was the 
amount of damages. This was right Under our former 
decisions defendant was liable because it violated the statute, 
and contributory negligence on the part of the plaintiff would 
not defeat his action. It is obvious that if plaintiff had not 
been employed on the machine he would not have been hurt 
while operating it ; so there was no issue raised on proximate 
cause. Pinoza v. Northern C. Co. 152 Wis. 473, 140 N. W. 
84; KowdLski v. American C. Co. 160 Wis. 341, 151 N. W. 
805; Sharon v. Winnebago F. M. Co. 141 Wis. 185, 124 N. 
W. 299. 

Four sentences found in the charge are excepted to and 
error is assigned as to each of them. The charge read as a 
whole was fair and correct and was not at all calculated to 
mislead the jury or to prejudice the defendant. It would 
serve no useful purpose to discuss these assignments of error 
in detail. 

The damages assessed are high. The injury, however, 
was severe, and inasmuch as the trial court did not see fit to 
reduce the damages we cannot say that they are excessive to 
the extent that this court should interfere. 

Complaint is also made about the offer in evidence of a 
photograph and the remarks of plaintiff's counsel in arguing 
the case to the jury. The photograph is not in the record, 
and, as we understand it, was withdrawn from evidence with- 
out having been shown to the jury. In any event there is no 
showing that defendant's rights were prejudiced by what 
transpired in reference to the photograph. Counsel for 
plaintiff do not seem to have gone outside of the usual lati- 
tude permitted in arguing cases to juries. 

By the Court. — Judgment affirmed. 



152 SUPREME COURT OF WISCONSIN. [Jan. 

Gagen v. Dawley, 162 Wis. 152. 



<5agen, Appellant, vs. Dawley and another, Respondents. 
Same, Respondent, vs. Same, Appellants. 

December 10, 1915 — January 11, 1916. 

Libel: Newspaper article: Punitory damages: Evidence: Harmless 
error: Justification: Instructions to jury: Ldability of owner of 
newspaper: Excessive daTnages: Reduction, 

1. A newspaper article referring to a candidate for county treasurer 

as a man ''who Is liable to leave for Texas on short notice and 
leave a lot of unpaid bills behind/' "who pays no bills/' "a first- 
class dead-beat/' "a scamp/' "a crook/' etc., Is libelous. 

2, In an action for libel the admission of evidence as to the finan- 

cial condition of one of the defendants as bearing upon the 
question of punitory damages should not work a reversal of a 
judgment against that defendant for compensatory damages, 
where plaintiff's counsel told the jury to disregard any such 
evidence, the court charged that no punitory damages could be 
assessed against that defendant, and the compensatory damages 
assessed were very moderate. 

Z, Where statements In libelous newspaper articles to the effect that 
plaintiff did not pay his bills purported to be made upon positive 
knowledge, current opinion or general rumor to that effect 
could not be shown in Justification. 

4. A charge or a portion of a charge correct as a whole cannot be 
successfully challenged by showing that a part of a sentence 
thereof standing by Itself would be Incorrect. 

•5. The owner and publisher of a newspaper who exercised super- 
vision over it and gave Instructions as to Its policy, was liable 
for libelous articles printed therein, even though he had turned 
it over to his son-in-law to edit, had cautioned him against in- 
serting libelous articles, and had given him the earnings of the 
paper for some time. ' 

•6. A verdict for |500 as compensatory damages for publication of 
scurrilous newspaper articles was not In this case excessive, 
and it was error for the trial court to reduce the amount. 

Appeals from an order of the municipal court of Lang- 
lade county: T. W. Hogan, Judge. Reversed on plaintiff's 
appeal; defendants take nothing on their appeal. 

Action for libel. Plaintiff, James Gagen, of Indian blood 
on his mother's side, was a candidate for the oflOice of countv 



11] JANUARY TERM, 191C. 15a 

Oagen t. Dawley, 162 Wis. 152. 

treasurer of Langlade county. On July 24, 1914, the de- 
fendants in the Weekly News Item, a paper published in An- 
tigo, published of and concerning him the following: 

"A man who won't pay a back subscription of several 
years' standing due to his home paper, doesn't look to us like 
a very safe man to put in as county treasurer. Further par- 
ticulars next week." 

July 31st they published this item: 

"The right man should be elected for county treasurer, and 
no man should be given a vote at the primaries whose past 
record will not bear close investigation. We want no man 
for treasurer who is liable to leave for Texas on short notice 
and leave a lot of unpaid bills behind." 

On August 14th they published on the editorial page t^e 
following article: 

"Nonpoliiical Notice. 

"(The following has not been ordered nor will not be paid 
for by Heapjim-Afraid-of His-Face, as he pays no bills any 
where or at any time.)'^ 

[Here follows an inch and a half cut of an Indian head 
and shoulders bedecked with feathers, beads, and earrings.] 

"I hereby announce myself as a candidate for election to 
office that I may get my lunch hooks onto the county money 
bag. I never did anything for the county but would like to- 
get votes just the sama Can refer voters to any of those who 
I owe old debts of several years' standing, and I believe my- 
self to be a first-class dead-beat, and I would perhaps be able 
to pay some of those who I have defrauded in the past years 
if I can con the voters to let me get away with the office. 

"Yours for Graft, 

"Heap JIM- Afraid-of-His-Face.'' 

The front page of the same issue contained this item : 

''Look Out for Him. 

"We don't object to Indians or any other kind of a cigar 
sign running for office, they may be Turks or Zulus for all 
we care, but we do like to see them be men and not crooks 
as some Indians who seek office are. Men who are elected to- 



154 SUPREME COURT OF WISCOXSIX. [Jan. 

Gagen v. Dawley, 162 Wis. 152. 

public oflSce should have a record that can stand investiga- 
tion, and one that is without reproach. One who goes fore- 
flushing around, and owes a lot of old unpaid bills, should 
not receive the votes of any voter who has the welfare of the 
county at heart There are plenty of good men running for 
ofiice so it will not be necessary to vote for a scamp. When 
a crook of this stamp comes up to you with a sickly grin on 
his face and hands you a card which announces that he has 
the gall to run for ofiice, ask him if you look like an easy 
mark." 

The jury found for plaintiff and assessed $500 compensa- 
tory damages against both defendants and the sum of $250 
punitory damages against the defendant Fessenden. The 
court entered an order giving defendants the option to con- 
sent to a judgment against them of $300 compensatory dam- 
ages, and $250 punitory damages against the defendant Fes- 
senden, and in case they did not exercise such option within 
ten days then the plaintiff was given the option of entering 
judgment against the defendants for $250 compensatory 
damages and $250 punitory damages against the defendant 
Fessenden, In case neither party exercised the option given 
a new trial would be ordered. Neither party exercised the 
option given and a new trial was ordered. Plaintiff appealed 
because the damages were reduced, and the defendants on the 
ground of alleged errors committed in the trial of the case. 

For the i)laintiff there were briefs by Ooodrick & Good- 
rich, and oral argument by Arthur B. Goodrich 

For the defendants the cause was submitted on the brief 
of Geo, ^Y. Latta. 

ViNJE, J. Upon defendants' appeal no new questions are 
presented. The published articles were clearly libelous. 
WUliavis V. Hicks P. Go. 159 Wis. 90, 150 N. W. 183; 
Leuch V. Berger, 161 Wis. 564, 155 N. W. 148, and cases 
cited. And, as the jury found, they unmistakably referred 
to plaintiff. 



llj JANUARY TERM, 1916. 165 

Gagen v. Dawley, 1G2 Wis. 152. 

Evidence of Dawley's financial condition was received as 
bearing upon the question of punitory damages. The court 
charged the jury that none could be assessed against him. 
The admission of such evidence is alleged as reversible error. 
There are two reasons why it is not. In the first place the 
court states that counsel for plaintiff told the jury that since 
they would be instructed not to assess punitory damages 
against Dawley they must disregard all evidence received aa 
to his financial condition. In the second place, in view of 
the character of the articles published and of the very mod- 
est sum assessed as compensatory damages the evidence could 
not have prejudiced the defendants. 

The court properly refused to permit defendants to justify 
by proof of current opinion or general rumor that plaintiff 
did not pay his bills. Haskins v. Lumsden, 10 Wis. 359; 
Earley v. Winn, 129 Wis. 291, 302, 109 N. W. 633. The 
Statements in the articles to that effect did not purport to be 
made upon information, opinion, or romor, but upon posi- 
tive knowledge. 

The charge was full and fair and correctly stated the law 
of the case. The defendants have excepted to a portion of a 
sentence and claim such portion is erroneous. The court 
charged : 

"The paper's function is to guide, educate, and inform its 
readers, to stand for truth and to condemn error, and never 
to maliciously accuse falsely, or blacken one's character, or 
expose him to public hatred, disgrace, contempt, or ridicule, 
(nor produce injury to him in his business, trade, or profes- 
sion. Those published articles here in evidence have done 
some of those things if not all.)" 

The part in parentheses is excepted to and it is said to be 
erroneous because it tells the jury that plaintiff was injured 
in his business, trade, or profession when it is claimed the 
evidence showed he had none. It is obvious that the whole 
charge quoted does not so tell the jury. It tells them that 
the articles in question have done some of the things men- 



156 SUPREME COURT OF WISCONSIN. [Jan. 

Gagen v. Dawley, 162 Wis. 162. 

tioned; if not all, and that was true. A charge or a portion 
-of a charge correct as a whole cannot be successfully chal- 
lenged by showing that a part of a sentence thereof standing 
by itself would be incorrect. 

The evidence shows that the defendant Dawley was the 
owner and publisher of the paper, but that he had turned it 
over to Fessendeuj his son-in-law, to edit and had given him 
the earnings of the paper for some time. It appears, how- 
over, by Dawley' s own testimony that he exercised supervision 
over the paper and was in the oflSce nearly every day or so ; 
that he gave instructions as to its policy and cautioned Fe&- 
senden against inserting libelous articles. Under the rule 
announced in Smith v. Utley, 92 Wis. 133, 65 N. W. 744, 
and Leuch v. Berger, 161 Wis, 564, 155 N. W. 148, he was 
properly held liable. The defendants will take nothing upon 
their appeal 

There is some basis for the claim that the trial court re- 
duced the compensatory damages from $500 to $250 on the 
theory that since, as he understood, the jury believed that 
each defendant would be required to pay only one half of 
-$500, and since Dawley alone was financially responsible, he 
should be required to pay only what the jury is claimed to 
have intended. There is nothing, however, in the record to 
show the jury entertained such an idea, and even if they did 
it would have been an erroneous one. The question they 
were called upon to decide was, how much damage had plaint- 
iff sustained, not which of the defendants was able to pay it 
nor how much they or either of them were able to pay. But 
whatever may have been the reason the reduction was un- 
justified. Plaintiff was a married man forty-six years old 
and had lived with his wife in the community for ten years 
and was engaged at the time of the trial in the abstract and 
insurance business. He had been municipal court reporter, 
and had been a member of the Democratic county committee, 
acting as secretary for twelve years. No justification of any 



11] JANUARY TERM, 1916. 167 

Jllek y. Zahl, 162 Wis. 167. 

of the charges made was established — ^hardly any attempted. 
Under such circumstances, bearing in mind the scurrilous na- 
ture of the publications, the jury assessed a very small sum 
for compensatory damages. The court should have permitted 
the verdict to stand. 

By the Court. — The defendants will take nothing upon 
their appeaL Upon plaintiffs appeal the order is reversed, 
And the cause remanded with directions to enter judgment 
for plaintiff upon the verdict. Plaintiff is entitled to his 
<K>sts in this court upon both appeals, but only one attorney's 
fee of $25 will be taxed. 



JiLEK, Bespondent, vs. Zaul, Appellant 

December 10, 1915x^anuary 11, 1916. 

Iteformation of contracts: Action at law: Change lyy amendment to 
equitable action: Statute regulating procedure, when applicable 
to pending litigation: Evidence: Sufficiency. 

1. No recovery of the balance aUeged to be due upon a land contract 

can be had in an action at law where it is necessary first to re- 
form the contract; but under sec. 2669a, Stats, (ch. 353, Laws 
1911), and sec. 2, ch. 219, Laws 1916 (sec. 2836&, Stats. 1915), 
an amendment may be allowed changing the action to one in 
equity, and it may then be tried and determined as if so brought. 

2. Although in such a case plaintiff had Judgment in the action at 

law before said law of 1915 took effect, upon reversal of the 
judgment there is no vested right in the procedure in force at 
the time it was rendered, and subsequent proceedings may be 
directed in accordance with the law of 1915. 

3. Even though the only direct testimony is that of the two parties, 

who flatly contradict each other, there may be corroborating 
circumstances proven which will satisfy the rule that the evi- 
dence must be clear and convincing in order to Justify reforma- 
tion of a written contract. 

Appeal from a judgment of the municipal court of Lang- 
lade county: T. W. Hogan, Judge. Reversed, 



158 SUPREME COXJRT OF WISCONSIN. [Jan. 

Jilek V. Zahl, 162 Wis. 157. 

Action to recover $500, being the balance due on the pur- 
chase price of an equitable interest in twelve forties of tim- 
ber land alleged to have been sold by the plaintiff to the 
defendant by written contract December 8, 1911. The de- 
fendant by answer denied any contract with himself, but al- 
leged that the plaintiff executed to Adelaide Zahl (defend- 
ant's wife) a land contract to convey three forties of the 
lands in question for $650 (of which $150 was paid down)^ 
and that plaintiff has refused to execute or deliver a convey- 
ance of the same though said Adelaide has offered and now 
offers to pay the balance when good title is furnished. 

On the trial before a jury it appeared that on October 12,. 
1909, the plaintiff received a land contract from the trustees 
of the estate of George Baldwin, deceased, for the conveyance- 
of the twelve forties of land in question for the sum of 
$4,500; that he went into possession, cut considerable quan- 
tities of cedar, paid about $2,*500 on the purchase price, and 
in April, 1911, proposed to one Hayssen, agent of said trus- 
tees, that he would assign back his interest in the contract so 
far as nine of the forties were concerned if the trustees would 
deed to him the remaining three forties and thus close the 
transaction; that in pursuance of this idea he executed and 
gave to Hayssen, April 5, 1911, an assignment of the con- 
tract as to the nine forties with the name of the grantee in 
blank ; that nothing came of this offer, but Hayssen did not 
return the assignment to the plaintiff, and on the contrary 
and without JUek's knowledge sold and transferred it to de- 
fendant's wife, Adelaide Zahl, acting through her husband, 
and received in pajonent the discharge of a debt of $150 
which he owed Zahl; that no written assignment was made 
out, but that Hayssen simply filled in the name of Adelaide 
Zahl as grantee in the assignment made by the plaintiff and 
delivered it to Zahl; that in December, 1911, the parties ne- 
gotiated together concerning the lands, the plaintiff not be- 



11] JANUARY TERM, 1916. 159 

Jllek V. Zahl, 162 Wis. 157. 

ing aware, as he claims, that Zahl had obtained the Hayssen 
assignment. Here the stories of the plaintiff and the de- 
fendant radically differ. A written contract was made out 
by Zahl December 8, 1911, by the terms of which Jilek, in 
consideration of the sum of $650, of which $150 was paid 
down and the balance was to be paid in two years, agreed to 
<5onvey three specified forties of the twelve to Adelaide Zahl. 
The plaintiff claims that the real transaction at this time was 
that he sold his interest in the entire twelve forties to Zahl 
himself, for which Zahl agreed orally to pay him $650 ($150 
being paid down) and to pay the trustees of the Baldwin ^es- 
tate the balance due on the original contract, which was 
nearly $2,000; that he, the plaintiff, knew nothing of Ade- 
laide Zahl; that Zahl drew the written contract, which he, 
plaintiff, supposing it agreed with the oral agreement, signed 
and returned to Zahl, and which now turns out to be a con- 
tract to convey three forties for $650 to Adelaide Zahl. On 
the other hand the defendant claims that he was acting in 
the transaction as the agent of his wife ; that he never talked 
with plaintiff until December, 1911 ; that he did not try to 
buy the twelve forties from Jilek, but only the three forties 
(he having already in his possession the Hayssen assignment 
covering the other nine forties) ; that Jilek understood about 
this assignment ; that it was understood that he, Zahl, was to 
pay three fourths and Jilek one fourth of the amount due the 
Baldwin estate; that he drew the land contract covering the 
three forties in Jilek's presence, read it to him, and Jilek 
signed it and took it away with him, and when he returned 
said that Hayssen had read it to him and witnessed it. On 
the contract the names of Zahl and Hayssen appear as wit- 
nesses. 

The trial judge charged the jury in effect that if they be- 
lieved the plaintiff's version of the last named transaction 
they should find for the plaintiff, and if they believed the 



160 SUPKEME COURT OF WISCONSIN. [Jan. 

Jllek y. Zahl, 162 Wis. 157. 

defendant's version they should find for the defendant A 
verdict for plaintiff was returned, and from judgment there- 
on the defendant appeals. 

H. F. Morson, for the appellant 

For the respondent there was a brief by Ooodrick <& Oood- 
rick, and oral argument by Arthur B. Ooodrick* 

WiNSLOw, C. J. It may well be that the result reached 
in this case is not inequitable, but it is very clear that there 
has been misconception of the real nature of the controversy. 
A written contract to convey three forties of land appears to- 
have been made by JUek running to Adelaide Zahl. On its 
face it is a perfectly good contract and under familiar rules 
it excludes evidence of a parol contract contradicting or vary- 
ing its terms. It may be reformed for mistake and enforced 
as reformed, but until reformed its provisions are controlling. 
The only way to reform it is by action in equity brought for 
the purpose of reforming it and enforcing it as reformed. 
Casgrain v. Milwaukee Co. 81 Wis. 113, 51 N. W. 88;. 
Garage E. M. Co. v. Danielson, 156 Wis. 90, 144 N. W. 284. 
So it is apparent that this action should have been brought in 
equity, and it is equally apparent that when brought at law 
no recovery should have been had. Until quite recently the 
plaintiff would have been thrown out of court and compelled 
to commence a new action because of the ironclad rule that 
an amendment could not be allowed which would change the 
action from one at law to one in equity. Charmley v. Charm- 
ley, 125 Wis. 297 (103 N. W. 1106) and cases cited at 
page 302. This rule has been changed, however, by sec 
2669a, Stats, (ch. 353, Laws 1911), and no miscarriages of 
justice of this nature need now occur. Further progress 
along the same line has been made by sec. 2 of ch. 219 of the 
Laws of 1915 (sec. 28366, Stats. 1915), which went into ef- 
fect after the trial in the present case, and which provides in 
the most comprehensive way for amendments in cases like the 



11] JANUARY TEEM, 1916. 161 



Jilek V. Zahl, 162 Wis. 167. 



present and for the continuance of the action or proceeding 
in the proper court and under the proper form of action in 
case of mistake in the form or substance of the remedy orig- 
inally sought. 

The beneficent effect of this provision can hardly be over- 
estimated. It means that it will no longer be necessary to 
kick the plaintiff out of the back door of the courtroom (with 
costs) in order that he may re-enter by the front door in a 
different garb. It means that we are losing interest in the 
mere niceties of procedure and gaining interest in the ac- 
complishment of justice "completely and without denial, 
promptly and without delay" (Const, art. I, sec. 9). 

Being an act regulating procedure, this act affects pending 
litigation except so far as rights may have become vested, 
and in case of the reversal of a judgment there is no vested 
right in the procedure in force at the time the judgment was 
rendered. 

As we have seen, the action should have been brought in 
equity. Whatever be our conclusion as to the action which 
the trial court should have taken under the law existing at 
the time of the rendition of the judgment, there can be no 
doubt as to the proper course now. The action must be con- 
tinued as an action in equity to reform and enforce the land 
contract; Adelaide Zahl and the trustees of the Baldwin es- 
tate must be brought in by order of court as necessary parties 
to a complete determination of the matters in controversy; 
the plaintiff must be required to amend his complaint in ac- 
cordance with the facts as he claims them to be, and the de- 
fendants should be allowed to make answer thereto as they 
may be advised, and the action should proceed to trial before 
the court with all convenient speed at such time as the trial 
court shall designate. It is undoubtedly the rule that the 
evidence must be clear and convincing in order to justify 
reformation of a written contract, and it is equally true that 
so far as direct testimony is concerned there is in the present 
Vol. 162 — 11 



162 SUPREME COURT OF WISCONSIN. [Jan. 

Eccles Y. Free High School District, 162 Wis. 162. 

case the oath of the plaintiff against the oath of the defend- 
ant, but no reason is perceived why there may not be corrob- 
orating circumstances proven which will satisfy the rule even 
though the number of direct witnesses be equal. 

It should be the aim of the trial court and of all parties to 
expedite the second trial of the case so that the delay will be 
for as brief a period as possible. 

By the Court. — Judgment reversed, with costs, and action 
remanded for further proceedings in accordance with this 
opinion. 



EooLBS, Respondent, vs. Free High School District of 
THE City of Kaukauna, imp., Appellant. 

Decemher 10, 1915— January 11, 1916. 

Judges: "DisaHHty:" Disqualification by prejudice: Statute construed. 

The word "disability," as used in sec. 9, ch. 23, Laws 1907, as 
amended by sec. 1, ch. 54, Laws 1913, — providing in substance 
that "in case of sickness, temporary absence or disability" of 
the municipal judge of Outagamie county he may appoint the 
county Judge to discharge his duties, — ^includes a disqualifica- 
tion of the municipal judge by reason of prejudice. The maxim 
noscitur a sociis does not apply. 

Appeal from a judgment of the municipal court of Outa- 
gamie county: Henry Kreiss, Acting Municipal Judge. 
Affirmed. 

The plaintiff brought this action to recover wages alleged 
to be due her on a written contract with the board of educa- 
tion of the city of Kaukauna, Wisconsin. 

The action was commenced by the service of a circuit 
court summons and was brought to trial on the 21st day of 
January, 1915, before Judge Thomas H. Ryan of the mu- 
nicipal court of Outagamie county. When the case was 
called for trial the defendant filed an affidavit of prejudice 



11] JANUARY TERM, 1916. 163 

Bccles V. Free High School District, 162 Wis. 162 

against Judge Thomas II. Ryan. Judge Ryan then made 
a written order requesting Judge Kreiss of the Outagamie 
county court to try the case. Defendant took no further part 
in the trial, and upon the evidence adduced by the plaintiff 
in support of her complaint the court, presided over by the 
county judge, made its findings of fact and conclusions of 
law and entered judgment that the plaintiff recover from the 
defendant $332.50 damages and $59 interest, together with 
the costs and disbursements of the action. The judgment 
was signed Henry Kreiss, County Judge, Acting Municipal 
Judga From such judgment this appeal is taken. 

George H. Kelly, for the appellant, cited, among other 
cases, Western D, & /. Co. v, Ileldmaier, 111 Fed. 123; 
Turnipseed v. Hudson, 50 Miss. 429, 19 Am. Rep. 15. 

For the respondent the cause was submitted on the brief 
of Mark Catlin. 

SiEBECKER, J. The record shows that the judge of the 
county court, pursuant to a written order of the municipal 
judge, acted as judge of the municipal court, tried and de- 
termined the issues between the parties, and rendered judg- 
ment in plaintiff's favor. This judgment is assailed on ap- 
peal as void upon the ground that the municipal judge, under 
the facts of the case, had no power to appoint the county 
judge to discharge the duties of the municipal judge, and 
hence the county judge acted without jurisdiction in render- 
ing the judgment appealed from. 'Ihe statute conferring 
power on the municipal judge to appoint the county judge to 
discharge his duties is sec. 9, ch. 23, Laws 1907, as amended 
by sec. 1, ch. 54, Laws 1913. It provides: 

" . • , In case of sickness, temporary absence or disa- 
bility of said judge he may, by order in writing filed and re- 
corded in said court, appoint the county judge of said county 
to discharge the duties of such judge during such sickness, 
temporary absence or disability, who shall have all the pow- 
ers of such judge while administering such office. In all 



164 SUPREME COUET OF WISCONSIN. [Jan. 

Ecclea v. Free High School District, 162 Wis. 162. 

cases any circuit judge may hold court as the judge of the 
municipal court in the event of the absence, sickness or other 
disability of the municipal judge or upon his special re- 
quest. . • ." 

It is contended by the appellant that the phrase "In case 
of sickness, temporary absence or disability of said judge/' 
when considered in connection with the other parts of the 
statute, does not include the disqualification of the municipal 
judge on account of his prejudice in the case. The argu- 
ment is that the "disability" contemplated by this statute is 
one like the sickness or absence of the judge and that it does 
not include a disability arising from prejudice of the judge. 
The legislature evidently intended to make provision for the 
discharge of the municipal judge's duties when he was un- 
able to discharge his judicial duties, and when so interpreted 
and applied to the subject matter of the statute the language 
employed includes in its general meaning all disqualifications 
of the municipal judge, and the word "disability" aptly ex- 
presses such intent as inclusive of all disqualifications in ad'- 
dition to sickness and absence. In ordinary language the 
condition of a judge who cannot act because he is not indif- 
ferent in the case is spoken of as a disqualification which 
legally disables him to perform the judicial function. Bias 
or prejudice of a judge as to the parties constitutes in the law 
a disability of such judge for the discharge of his duties. 
This interpretation is corroborated by the provision of sec 
35, ch, 23, Laws 1907, as amended by sec. 1, ch. 54, Laws 
1913, which provides that in case the municipal judge is dis- 
qualified to act in the instances there enumerated, including 
the one of his prejudice in the cause, he is authorized to "call 
in the circuit judge or county judge" to perform his duties, 
and imder such conditions "the provisions of said section 9 
of this act shall apply in all their force and effect" This in- 
dicates that the legislature understood that a disqualification 
from prejudice was included in sec. 9, and is necessarily ref- 



11] JANUARY TERM, 1916. 185 

St Paul F. ft M. Ins. Co. t. Laulienstein, 162 Wis. 166. 

erable to the word "disability" as the only term thereof which 
comprehends this idea. The terms of the statute indicate 
that it was intended by the legislature that the word "disa- 
bility^' as used here was not to be restricted in meaning by 
the words preceding it. We are of the opinion that the mu- 
nicipal judge gave a correct interpretation to the act and that 
the county judge had jurisdiction to try and determine the 
issue in the case. 

By the Court. — The judgment appealed from is affirmed. 



St. Paul Fibb & Maeinb Insurabtcb Company, Appellant, 

vs. Latjbenstein, Eespondent 

December 10, 1915— January 11, 1916. 

Principal and agent: Negligence or J>ad faith of agent: Questions for 

jury. 

1. An agent is bound to exercise good faith and diUgence in his re- 

lations with his principal and in following his instructions. 

2. For failure to exercise ordinary care in the discharge of his du- 

ties, an agent will be liable to his principal. 

3. In an action by an insurance company for an alleged breach of 

duty by an agent, there being evidence which would warrant 
the Jury in finding that defendant made certain false represen- 
tations to plaintiff either negligently or in bad faith and that 
plaintiff relied thereon in issuing a policy upon which it after- 
wards had to pay the amount of loss, it was error to direct a 
verdict for defendant. 

Appeal from a judgment of the circuit court for Shawano 
county: John Goodland, Circuit Judge. Reversed. 

This action was brought to recover damages growing out 
of an alleged breach of duty by the defendant as agent of the 
plaintiff. The plaintiff is an insurance company and the 
defendant acted as its agent in the vicinity of Gresham, Wis- 
consin, and as such agent issued a policy of insurance upon 



166 SUPREME COURT OF WISCONSIN". [Jan. 

St. Paul F. ft M. Ins. Co. v. Laubenstein, 162 Wis. 165. 

certain property, and it is the claim of the plaintiff that said 
defendant made certain representations respecting the prop- 
erty to the company which induced the issuance of the policy 
and which representations were untrue, in consequence of 
which the plaintiff sustained damages, which it seeks in this 
action to recover from the defendant. 

After the evidence was all in the court directed a verdict 
for the defendant and judgment was entered accordingly, 
from which this appeal was taken. 

Daniel H. Grady j for the appellant. 

For the respondent there was a brief by Dillett & Winter, 
and oral argument, by P. J. Winter, 

Kebwin, J. The plaintiff through the defendant, its 
agent, issued a policy of insurance upon certain property of 
one Anna Huntington. The property was destroyed by fire, 
suit brought to recover, the case settled, and amount of loss 
paid. The present action was then brought to recover the 
damage alleged to' have been sustained by plaintiff on ac- 
count of the alleged breach of duty of defendant in procur- 
ing the insurance. 

It is contended on the part of appellant that the court 
erred in refusing to direct a verdict for plaintiff and in di- 
recting a verdict for defendant. 

In procuring the insurance it is claimed by plaintiff that 
the following false representations were made by defendant : 

(1) That the applicant owned forty-one acres of land; 

(2) that the cash value of the land was from $600 to $800; 

(3) that the appearances indicated applicant to be a good, 
thrifty farmer; (4) that there was a stone and post founda- 
tion under the building; (5) that a steam sawmill ninety- 
five feet from the risk ran only six or eight weeks each sea- 
son; (6) that such mill would not operate after that season; 
and (7) that boarders were kept only while the sawmill was 
in operation. 



11] JANUARY TERM, 1916. 167 



St Paul F. & M. Ins. Co. ▼. Laubensteln, 162 Wis. 165. 

A written application was taken by defendant and signed 
by the applicant. Some of the above representations, nota- 
bly that the foundation under the building was of stone and 
posts and that applicant owned forty-one acres, were con- 
tained in such written application. The evidence showed 
that the applicant owned at the time the application was 
signed only one acre of land, but had been negotiating for 
fortv acres more. There is evidence that defendant asked 
the questions contained in the written application and wrote 
in the answers given by the applicant There is also evi- 
dence that a few days before defendant obtained the applica- 
tion from Anna Huntington he attempted to procure insur- 
ance on the Huntington property in another company, rep- 
resenting the property to be a boarding house. 

The basis of the claim of plaintiff to recover in the present 
action is the false representations of the defendant, relied 
upon by plaintiff, and from which it is alleged damages re- 
sulted to plaintiff. 

The claim of the defendant is that the representations were 
true, made in good faith, and if any thereof were not true 
the defendant is not liable because as agent of plaintiff he 
acted in good faith in the line of his duty and was guilty of 
no negligence. 

We think the question of liability of the defendant was for 
the jury, therefore the court below was in error in directing 
a verdict 

There was evidence which would warrant the jury in find- 
ing that some at least of the representations were not true 
and that the defendant was either guilty of negligence or bad 
faith in making them. There is also evidence which would 
entitle the jury to find that the plaintiff relied upon the rep- 
resentations made in issuing the policy. 

An agent is bound to exercise good faith and diligence in 
his relations with his principal and in following the instruc- 
tions of his principal. SicJclesteel v, Edmonds, 158 Wis. 



168 SUPEEME COURT OF WISCONSIN. [Jan. 

Knapp v. Deer Creek, 162 Wis. 168. 

122, 147 N. W. 1042 ; Hall v. Storrs, 7 Wis. 253 ; PJuenia 
Ins. Co. V. Frissell, 142 Mass. 613, 8 N. E. 348 ; Continerir 
tal Ins. Co. V. Clark, 126 Iowa, 274, 100 N. W. 624. 

An agent in the discharge of his duties as such must exer- 
cise ordinary care, and for negligence in failing to do so he 
will be liable to his principal 2 Corp. Jur. tit Agency, 
§§ 381, 382. 

It was clearly for the jury to say whether some at least of 
the representations were true, and whether if false the de- 
fendant acted in good faith or was guilty of negligence in 
making them. We shall not undertake to specify what ques- 
tions should have been submitted to the jury, since the evi- 
dence may be different upon another trial. Error was com- 
mitted in directing a verdict for the defendant, and the judg- 
ment must therefore be reversed. 

By the Court. — The judgment of the court below is re- 
versed, and the cause remanded for a new trial. 



Knapp, Appellant, vs. Town of Deee Oeeek, Respondent 

December 11, 1915 — January 11, 1916. 

Ditches to permit natural drainage: Duty of totona, etc.: Enforcement 
in equity: Exclusive remedy: Action for damages: Filing of 
claim. 

1. Sec. 1388^, Stats. 1913 (relating to ditches, culvertSp or other out- 

lets to permit the natural drainage of low lands over which a 
highway or road grade shall be constructed), gives a new right 
to the landowner and declares the remedy for failure of the mu- 
nicipality or railway company to perform the duty thereby im- 
posed; and the remedy so provided (viz. the recovery of dam- 
ages) excludes any right of the landowner to resort to equity 
to compel the construction and maintenance of the ditches. 

2. Failure of a town to perform the duty Imposed upon it by said 

sec. 13882) does not constitute a* nuisance against which equity 
will grant relief. 



11] JANUARY TERM, 1916. 169 

Knapp V. Deer Creek, 162 Wis. 168. 

8. A daim for damages caused by failure to construct and maintain 
ditches, etc., as required by sec. 1388&, must be filed as pro- 
Tided in sec. 824, before an action thereon can be maintained 
against a town. 

Appeal from an order of the municipal court of Outa- 
gamie county: Ajlbebt M. Spbnoeb, Judga Affirmed. 

The appeal is from an order sustaining a demurrer to the 
complaint. 

For the appellant there were briefs by A. H. Krugmeier 
and Morgan & Benton, and oral argument by John Morgan. 

For the respondent there was a brief by Olen & Olen, air 
tomeys, and P. H. Martin, of counsel^ and oral argument by 
Mr. Martin and Mr. 0. L. Olen. 

Timlin^ J. The plaintiff brought this action against the 
town to compel the latter by mandatory injunction to "con- 
struct, provide and maintain the ditches, culverts or other 
outlets" required by ch. 159, Laws 1913 (sec. 13886^ Stats. 
1913). Demurrer was sustained because the complaint con- 
tained no averment that the claim sued on had been presented 
to the town board as required by sec. 824, Stats. 1913. The 
plaintiff contends that the suit was properly planted in equity 
to abate a nuisance under sec 3180, Stats. 1913, and that 
sec. 824 has therefore no application. Respondent meets 
this with argument (1) there is nothing in the nature of a 
nuisance; (2) the statute (sec. 13886) confers a new right 
and prescribes the remedy of an action for damages and this 
remedy is therefore exclusive; (3) the statute is unconstitu- 
tional in any event, (a) because it takes private property for 
private purposes, (b) it takes property without due process 
of law, (c) because it denies the equal protection of the law. 
The statute is as follows : 

"Section 13886. 1. Whenever any town, city, village or 
railway company shall . . . construct and maintain any 
public highway or road grade through, over and across any 
marsh, lowland or other natural depression over or through 
which surface water naturally flows and percolates, and the 



170 SUPREME COUKT OF WISCONSIN. [Jak. 

Knapp V. Deer Creek, 162 Wis. 168. 

stopping of the said flow and percolation of said water by 
said highway or road grade causes any crop or land to be 
flooded, watersoaked or otherwise damaged, such town, city, 
village or railway company shall construct, provide and at 
all times maintain a sufficient ditch or ditches, culverts or 
other outlets to allow the free and unobstructed flow and per- 
colation of said water from said lands, and to prevent said 
lands from becoming flooded, watersoaked or otherwise dam- 
aged by said water. Provided, however, that the foregoing 
shall not apply to public highways or road grades now or 
hereafter used to hold and retain water for cranberry pur- 
poses. 

"2. Any town, city, village or railway company which 
shall fail to provide such necessary ditches or culverts or 
other outlets shall be liable for all damages caused by reason 
of such failure or neglect." 

It is very apparent that this statute creates a duty to re- 
frain from obstructing by a roadbed the flow or percolation 
6f surface water and that in the absence of this statute no 
such duty existed. Some such duty did exist at common 
law where there was a defined watercourse. It is also ap- 
parent that such duty is due to the owner of the adjacent 
lands flooded, watersoaked, or otherwise damaged by failure 
tp perform the duty. The statute also provides that in case 
of failure to conform to it the municipality shall be liable for 
all damages caused by such failure. We have therefore the 
case of a statute giving a new right to the adjacent landowner 
and declaring the remedy. 

In SaxvUle v. Barilett, 126 Wis. 655, 105 N. W. 1052, a 
statute imposing upon a son the duty to support his pauper 
parent and providing a remedy for failure so to do was held 
to lawfully take away the right of trial by jury on disputed 
questions of fact, no jury being permitted in the statute cre- 
ating the obligation and prescribing the remedy. In Hall v. 
Hinckley, 32 Wis. 362, a similar statute was held to exclude 
the jurisdiction of equity. Chief Justice Dixon there said : 

"It is a cardinal rule in the construction of statutes, that, 
where a new right has been given and a specific remedy pro- 



11] JANUARY TERM, 1916. 171 



Knapp Y. Deer Creek, 162 Wis. 168. 



vided by statute, the right can be vindicated in no other way 
than that prescribed by the statute. Amet v. Milwaukee 
M. Mut Ins. Co* 22 Wis. 516, and authorities cited. The 
statute under consideration gives a new right, and does pre- 
scribe a specific remedy for the enforcement of such right, 
and that remedy is wholly inconsistent with the supposition 
of jurisdiction in equity, or that the legislature intended any 
application of the equitable doctrine of equality among the 
lienholders. The remedy prescribed is by action at law, de- 
nominated in the statute ^personal action against the debtor, 
his executors or administrators.' " 

This rule is recognized in 1 Pom. Eq. Jur. (3d ed.) § 281, 
as follows : "Whenever a legal right is wholly created by stat- 
ute, and a legal remedy for its violation is also given by the 
same statute, a court of equity has no authority to interfere 
with its reliefs, even though the statutory remedy is diflScult, 
uncertain, and incomplete," citing cases. See, also, Wiscon- 
sin cases collected in State ex rel. Cook v. Houser, 122 Wis. 
634, 596, 100 N. W. 964. Perhaps the generality of the 
language in the foregoing quotations should be in some meas- 
ure limited, but not to such a degree as to affect this case or 
as to permit the plaintiff to go into equity to vindicate the new 
right given by sec. 13886, Stats., when the legal remedy there 
provided is so plain and sufficient There is nothing to sug- 
gest that all the damages may not be recovered in one action, 
nor, with reference to pre-existing embankments, that dam- 
ages should exceed the difference in market value of the area 
directly affected, with, and that area without, a practicable 
culvert or drain. 

The failure of the defendant to perform the duty cast upon 
it by the statute in question cannot be said to be a nuisance 
unless every breach of legal duty constitutes a nuisance. The 
defendant has committed no unlawful act, and is charged with 
nonfeasance only. It has merely failed to do. Its failure 
damaged the adjacent proprietor, but created nothing threat- 
ening him or the public with personal discomfort or ill health. 
The statute looks only to the injury to the adjacent lands, and 



172 SUPREME COURT OF WISCONSIN. [Jan. 

Conway t. Grand Chute, 162 Wis. 172. 

the duty is cast upon the town "to prevent said lands from 
becoming flooded, watersoaked or otherwise damaged by said 
water." As was said in Chicago & A» R. Co. v. Tranbarger, 
238 U. S. 67, 77, 35 Sup. Ct. 678, with reference to a similar 
statute: **The present regulation is for the prevention of dam- 
age attributable to the railroad embankment itself, and 
amounts merely to an application of the maxim sic utere tuo 
ut dlienuTn nan Icedas." 

The case is one, therefore, in which a claim should have 
been presented under sec. 824, Stats. 1913. We do not find 
it necessary to pass upon the constitutionality of this act. 

By the Court. — Order affirmed. 



Conway, Respondent, vs. Town of Grand Chute, Appel- 
lant 

DeceTtiber 11, 1915 — January 11, 1918. 

Money paid under unconstitutional law: Recovery: Bubacriptiona: 
Failure to comply xoith conditions: Highways: Improvement: 
Towns: LiaMlity to repay moneys subscribed. 

1. The rule that relief will not be granted against a mistake of law 

is not without limitation; and the rule that money paid under 
an unconstitutional law without any circumstances of compul- 
sion is paid under a mistake of law and is not recoverable, is not 
applicable to all situations. 

2. A gift, donation, or subscription may be made on condition that 

the donee do some act before the donation will become available, 
and if there is a refusal to accept the condition the donation 
may be withdrawn. 

8. If in such case payment is made but the condition has not been 
fulfilled, the amount paid may be recovered. 

4. Where, pursuant to sub. 3, sec. 1317m — I, Stats. 1913, and assum- 
ing it to be valid, freeholders subscribed and paid into the 
treasury of a town a certain sum and presented a petition des- 
ignating the parts of the system of prospective state highways 
which they wished to have improved, but the town refused to 



11] JANUARY TERM, 1916. 173 

Conway v. Grand Chute, 162 Wis. 172. 

raise a like amount for that purpose by taxation, and in an ao- 
tion to compel it to do so it was held that said subsection was 
unconstitutional, the condition upon which the subscriptions 
were made was never fulfilled, and the money might be recov- 
er ed. 
6. The electors at a town meeting having voted to expend the mon- 
eys so subscribed upon the highways designated, the town 
thereby assumed ownership and control over the fund and ren- 
dered itself liable to an action to recover it. 

Appeal from an order of the circuit court for Outagamie 
oounty: Chesteb A. Fowler, Judge. Affirmed, 

For the appellant there was a brief by Morgan & Benton, 
and oral argument by John Morgan, 

For the respondent there was a brief by Julius P. Frank, 
attorney, and Ryan, Cary & Frank, of counsel, and oral argu- 
ment by Julius P. Frank. 

Babnes, J. This is an appeal from an order sustaining a 
demurrer to an answer as not stating a defense. 

Most of the facts necessary to an understanding of the 
question involved are detailed in Stale ex rel. Carey v. Bal- 
lard, 158 Wis. 251 (148 N. W. 1090), at pages 251 to 253 
inclusive. In that case, sub. 3 of sec. 1317iw — 4, Stats. 
1913, was held unconstitutional. The plaintiff and others, 
assuming the statute to be valid, had paid into the town treas- 
ury the sum of $4,800 and filed petitions stating the parts of 
the county system of highways which they desired improved. 
The town refused to levy a tax to cover its share of the pro- 
posed improvements and they were not made. This court 
held that it was acting within its rights. The various con- 
tributors assigned their claims against the town to the plaint- 
iff. The latter filed a claim against the town on March 29, 
1915, which was not allowed. On the contrary, the electors 
at the April, 1915, town meeting voted to expend the moneys 
on the highways designated in the petitions under the super- 
vision of the town board. 



174 SUPKEME COURT OF WlSCOXSIIf. [Jan. 

Conway v. Grand Chute, 162 Wis. 172. 

The defendant argues that no cause of action was stated in 
the complaint (1) because the money was voluntarily paid 
into the town treasury and hence there can be no recovery, 
and (2) because no recovery can be had of money paid under 
an unconstitutional law, and that inasmuch as the demurrer 
goes back to the first defective pleading, it should have been 
sustained as a demurrer to the complaint or else the action 
should have been dismissed. 

It is correct as a general proposition to say that relief will 
not be granted against a mistake of law. This rule, however, 
is not without limitation. Green Bay & M. C, Co. v. Hewitt, 
62 Wis. 316, 21 N. W. 216, 22 N. W. 588 ; Wis. M. & F. Ins. 
Co. Bank v. Mann, 100 Wis. 596, 619, 76 N. W. 777; Rowelt 
V. Smith, 123 Wis. 510, 102 N. W. 1. It is also held that 
under some circumstances money paid under an unconstitu- 
tional law without any circumstances of compulsion is paid 
under a mistake of law and is not recoverable. Van Buren 
V. Downingj 41 Wis. 122. But this rule is not applicable to 
all situations. Milwaukee v. Milwaukee Co, 114 Wis. 374, 
90 N. W. ^7. Neither of the rules of law relied on affects 
the right of the plaintiff here. It is well settled that a person 
desiring to make a gift, donation, or subscription may make 
it on condition that the donee do some act before the donation 
becomes available, and that if there is a refusal to accept the 
condition the donation may be withdrawn. Numerous cases 
to this effect are collected in a note in 37 Cyc. 496, and in 
45 Cent. Dig. tit. Subscriptions, § 14. And if payment is 
made but the condition has not been fulfilled the amount paid 
may be recovered back. 37 Cyc. 501 and cases cited. Here 
the subscribers donated $4,800 for certain specific purposes 
on condition that the town raise a like amount by taxation. 
This the town refused to do, and it was decided bv this court 
that it could not be compelled to raise the money because the 
soKjalled "force clause" of the 1911 law was void. The con- 
dition on which the subscriptions were based was never ful- 



11] JANUARY TERM, 19l6. 175 

Scbabow T. Wisconsin T., L., H. tc P. Co. 162 Wis. 175. 

• 

filled, hence the right to recall them existed. If the town de- 
sired to retain the money it should have complied with the 
condition. There are other grounds on which the decision of 
the lower court might well be sustained, but the one stated is 
deemed sufficient. 

Were it not for the action of the electors at the annual 
town meeting in April, 1915, we should seriously doubt the 
right of the plaintiff to bring any action against the town, be- 
cause up to that point there was nothing to show that the 
town accepted the subscription or made any claim to the 
money and no reason is apparent why plaintiff should not 
pursue his remedy against the custodian of the fund. By its 
action taken at the town meeting, however, the town assumed 
ownership of and control over the fund by voting to spend it 
for town purposes and thus rendered itself liable to an action 
to recover it 

By the Court. — Order affirmed. 



SoHABOw, Respondent, vs. Wisconsin Traction, Light, 
Hbat & Power Company, Appellant 

December 11, 1915— January 11, 1916. 

Negligence: Proximate cause: Anticipation of injury: Instructions to 
jury: Harmless error: Contributory negligence: Questions for 
jury: Excessive damages: New trial: Newly discovered evidence: 
Discretion. 

1. Negligence Is the proximate canse of a personal injury which is 

the natural and probable result thereof, where an ordinarily 
prudent man ought reasonably to have anticipated that some 
injury (not necessarily the precise injury) to another person 
might probably be caused by the negligent act. 

2. In an action for an injury to one who, while delivering goods at 

defendant's bam, fell through an open trap door in the floor, the 
Jury were correctly instructed in accordance with the rule 
above stated upon the question whether defendant's negligence 



176 SUPREME COURT OF WISCONSIN. [Jan. 

Schabow v. Wisconsin T., L., H. & P. Co. 162 Wis. 175. 

was the proximate cause of the Injury, but upon the question of 
plaintiff's contributory negligence they were told that "negli- 
gence is a proximate cause of an injury only when the injury 
is the natural and probable result of it, and in the light of at- 
tending circumstances it ought to have been foreseen by a per- 
son exercising ordinary care." Held, that the Jury must have 
understood, by the words the injury and the word it referring 
back to them, an injury and not the precise injury which re- 
sulted; hence the error in the wording of the instruction was 
not material. 

3. The leaving open of a trap door in a floor upon which people walk 

raises in the ordinary mind a reasonable anticipation that some 
one may fall into it and be injured. 

4. The trap door being very near the door of the bam and having 

been closed when plaintiff went into the bam to get help in car- 
rying a heavy can of soap and also when he came out, but hav- 
ing been opened before, carrying one side of the can, he neces- 
sarily backed through the narrow door of the bam and In so 
doing fell into the open trap, the question of his contributory 
negligence was for the Jury. 

5. An award of 1 1,000 for injury to a man twenty-three years of 

age, who sustained a rupture in falling through a trap door, was 
not excessive where the evidence showed a direct financial loss 
of |264, pain and suffering, and a reasonable certainty of suffer- 
ing and disability in the future. 

6. It was not an abuse of discretion to deny a motion for a new trial* 

on the ground of newly discovered evidence, where such evi- 
dence was merely cumulative and not very persuasive. 

Appeal from a judgment of the municipal court of Outa- 
gamie county: Albert M. Spencer, Judge. Affirmed. 

Action for damages for personal injury. PlaintiflF, Her- 
bert Schcibow, was injured April 7, 1914, by falling through 
a trap door in defendant's car barn while assisting in deliver- 
ing a can of soft soap weighing 100 pounds. Upon arriving 
at the bam he tied his team and entered to get helpi Both on 
entering and leaving he passed over the trap door, which was 
then closed. Though lie had made deliveries there for about 
a year past he claimed he had never seen it open. The trap 
door consisted of an iron plate hinged flush to the cement 
floor, and it covered a stairway leading to the basement. The 
stairs led down from the end nearest the outside door of the 



11 J JANUAEY TERM, 1916, 177 



Schabow v. Wisconsin T., L., H. & P. Co. 162 Wis. 175. 

bam. The latter was a sliding door with a narrow swinging 
door set in it. The trap door was directly opposite to and at 
a distance of forty-one inches from the small swinging door. 
Plaintiff and one of defendant's employees, John Steger, car- 
ried the can of soap by the handles, walking side by side till 
the door was reached. Plaintiff then swung backwards and 
opened the door with his right hand, backed through and be- 
yond it, and fell down the open stairway, the trap door having 
been opened by an employee of defendant while plaintiff and 
Steger were out to get the soap. The jury found negligence 
on the part of the defendant ; that it was the proximate cause 
of the injury ; that plaintiff was free from contributory neg- 
ligence; and damages $1,000. From a judgment in favor 
of plaintiff entered upon the verdict the defendant appealed. 

Lawrence A. Olwell, for the appellant. 

For the respondent there was a brief by Martin, Martin & 
Martin, and oral argument by P. H. Martin. 

ViNJB, J. Error is assigned upon this instruction of the 
court given relative to the question of contributory negli- 
gence : 

"Negligence is a proximate cause of an injury only when 
the injury is the natural and probable result of it, and in the 
light of attending circusMtances it ought to have been fore- 
seen by a person exercising ordinary care." 

It is argued that this instruction required an anticipation of 
the precise injury that did in fact result, and that under the 
rule laid down in Meyer v. Milwaukee E, R. & L. Co. 116 Wis. 
336, 93 N. W. 6; Schmeckpepper v. C. & N. W. R. Co. 116 
Wis. 592, 93 N. W. 533 ; Feldschneider v. C, M. & St. P. 
R. Co. 122 Wis. 423, 99 N. W. 1034; Morey v. Lake Su- 
perior T. S T. Co. 125 Wis. 148, 103 K W, 271; Owen v. 
Portage T. Co. 126 Wis. 412, 105 K W. 924; Sparks v. Wis. 
Cent. R. Co. 139 Wis. 108, 120 K W. 858; Coel v. Green 
Bay T. Co. 147 Wis. 229, 133 N. W. 23 ; Dodge v. Kaufman, 
Vol. 162 — 12 



178 SUPREME COURT OF WISCONSIIT. [Jan. 

Schabow v. Wisconsin T., L., H. & P, Co. 162 Wis. 175. 

152 Wis, 171, 139 IST. W. 741; and Luebben v. Wis. T., L., 
H. & P. Co. 154 Wis. 378, 141 N. W. 214, it is only neces- 
sary that an injury or some injury to a person may reason- 
ably be anticipated from the negligent act. The correctness 
of the rule stated in the cases cited is not open to question. 
And its correct statement in a case where claim is properly 
made that the resulting injury, either in the manner in which 
it is inflicted or the result thereof, could not be reasonably 
anticipated is essential to a correct submission of the question 
to the jury. But in the instant case no one can question the 
fact that an open trap door in a floor upon which people 
walk raises in the ordinary mind a reasonable anticipation 
that some one may fall into it, and that a person falling into 
it and down stairs may sustain a rupture, which was the seri- 
ous injury to plaintiff. In its instruction under the ques- 
tion of whether defendant's negligence was the proximate 
cause of plaintiff's injury the correct language was used and 
they were told that the requirements of reasonable anticipa- 
tion were met when a person of ordinary intelligence and 
prudence ought reasonably to foresee that a personal injury 
to another may probably follow the negligent act. In view 
of that instruction we must conclude that the jury understood, 
by the words the injury and the word it referring back to 
them, an injury and not the precise injury which resulted. 
Similar language was so construed in Coolidge v. Hallauer, 
126 Wis. 244, 105 N. W. 568, where the words such injury 
were held to mean an injury or some similar injury and not 
the precise injury to which the word such grammatically re- 
lated. 

We fail to see why plaintiff's contributory negligence was 
not a jury question. Assume even that plaintiff was aware 
of the existence of the trap door. It is undisputed that it 
was closed when he first went in and when he came out, and 
that it was opened during the short time that he and the 
other employee were outside to get the soap. In coming 



11] JAXUAKY TERM, 1916. 179 



Schabow v. Wisconsin T., L., H. & P. Co. 162 Wis. 175. 

through the narrow swing door it was necessary for him to 
back in, as they could not go side by side. The open trap 
door was only forty-one inches back of the swing door. 
Surely it cannot be held as a matter of law that he was guilty 
of negligence in backing into it The case of Lehman v. 
Amsterdam C. Co. 146 Wis. 213, 131 N. W. 362, is a much 
stronger one showing contributory negligence and yet it was 
held the question was for the jury. 

Plaintiff, a young man twenty-three years of age, sustained 
a rupture as a result of falling through the trap door April 7, 
1914. Two weeks thereafter he was operated upon. He re- 
mained in the hospital from ten to fourteen days, and was un- 
able to work for four months. His earnings were $9 per 
week; his hospital bill $20, and the doctor's services for the 
operation were worth $100, all resulting in a financial loss 
of $264. At the time of the trial in May, 1915, he still felt 
a soreness and weakness about the wound, and when he lifted 
hard or did ^'ery heavy manual labor he felt pain there in ad- 
dition to the weakness and soreness. The results of the op- 
eration were pronounced good by both doctors who testified. 
It was entirely problematical whether or not there would be 
a recurrence of the rupture. But he would not for some 
time to come, if ever, be as immune from rupture under 
strain as he had been before. The court instructed the jury 
that they might assess damages **for such pain, suffering, 
and disability as you are reasonably certain that he will suffer 
in the future as a result of the injury." The evidence fur- 
nished a sufficient basis for the instruction, not on the ground 
that it showed a reasonable certainty of a recurrence of the 
rupture, but because it did show that by reason of his injury 
he was reasonably certain to sustain suffering and disability 
in future. The jury by assessing only $1,000 damages in a 
case of actual financial loss of nearly one third of that amount, 
not to speak of some compensation for pain and suffering en- 
dured up to the time of the trial, seems to have exercised a 



180 SUPREME COURT OF WISCONSIN. [Jan. 



Bystrom Brothers y. JacobBon, 162 Wis. 180. 



well balanced judgment in the assessment of damages for 
future pain and disability. 

Defendant asked for a new trial on the ground of newly 
discovered evidence to the effect that plaintiff had previous to 
the accident been down-stairs and knew of the trap door. 
The motion was denied. There was evidence on the trial to 
the effect that he knew of the existence of the trap door. The 
newly discovered evidence would therefore be merely cumu- 
lative, and, for reasons given in discussing plaintiff's con- 
tributory negligence, not very persuasiva It is not probable 
that a different result would be reached by a jury because of 
the newly discovered evidence. For these reasons we cannot 
disturb the discretion exercised in denying the motion for a 
new trial. 

By the Court, — Judgment affirmed 



Bystrom Brothebs, Appellant, vs. Jacobson and another. 

Respondents. 

Decerriber 11, 1915 — January 11, 1916. 

Workmen's compensation: Statute construed: ** Accident.** 

The word "accident" In sub. (3), sec. 2394—3, Stats.,— providing 
for compensation to employees for injuries "proximately caused 
by accident," — should be taken in a broad sense and as includ- 
ing a violent or undue straining of the muscles, resulting In a 
bodily hurt — in this case a muscular spasm, without external 
evidence of injury — to an employee from physical overexertion 
in performing his work. 

Appeal from a judgment of the circuit court for Dane 
county : E. Ray Stevens, Circuit Judge. Affirmed. 

The action was to test an award made by the Wisconsin 
IndustHal Commission in favor of defendant Eric Jacobson. 
The award was sustained. 



11] JANUAKY TEKM, 1916. 181 



Bystrom Brothers v. Jacobson, 162 Wis. 180. 



The Commission made the award and it was confirmed 
on this state of facts, as indicated in a memorandum which 
such Comjnission filed in the proceeding as a basis for its con- 
clusion : 

"May 16, 1014," Eric Jacobson "was in the employ of 
Bystrom Brothers "laying cement blocks. He was at work 
under the porch of a residence, and in attempting to lift a 
block weighing approximately eighty pounds, on the founda- 
tion of the wall, while in a sitting position, he strained the 
muscles of his right side. The accident occurred during the 
forenoon. . . . He . . . consulted a physician, who pro- 
nounced the injury as a muscular spasm. There was no ex- 
ternal evidence of injury, but he suffered pain and was dis- 
abled until July 6, 1914." 

For the appellant there was a brief by Robert B, Freeman 
and Timothy Brown, attorneys, and Russell B. James, of 
counsel, and oral argument by Mr. Brown. 

For the respondent Industrial Commission there was a 
brief by the Attorney General and Winfield W. OUmanj as- 
sistant attorney general, and oral argument by Mr. Oilman. 

Marshall, J. The question raised in this case is whether 
the injury for which compensation was granted was "proxi- 
mately caused by accident" within the meaning of those 
words, in sub. (3), sec. 2394 — 3, of the Workmen's Compen- 
sation Law. On behalf of appellant, it is contended that the 
statute calls for an accident in the sense of the application of 
some violence or external force to the person of the workman, 
that a physical ill caused by the labor the workman is en- 
gaged in is not sufficient. 

It is considered that the term "accident" as used in the 
Workmen's Compensation Act has a much broader significa- 
tion than that contended for by counsel for appellant. It is 
susceptible of being given such scope that one would hardly 
venture to define its boimdaries. Courts have indulged in 
very general statements in regard to it, but have not worked 



182 SUPREME COURT OF WISCONSIN. [Jan. 

Bystrom Brothers v. Jacobson, 162 Wis. 180. 

out any very definite guide. True, as stated by a text-writer, 
such term has been more discussed, probably, in adjudica- 
tions, *^than any other word in the whole English language." 
What the meaning of it is, in the technical sense, is quite dif- 
ferent from what it is in the popular sense. The latter sense 
was adopted in Fenton v. Thorley, 89 L. T. Rep. 314, the 
leading English case on the subject in regard to such situa- 
tions as the one we have to deal with. There a workman, in 
straining to turn a wheel to open a lid, ruptured himself, and 
it was held that he was injured by accident. The logic of 
the decision is thus stated in Dawbarn, Employers' Liability 
(4th ed.) 100: 

"The essential principle and foundation of their judgment 
was that no arbitrary, legal, technical, or contractual meaning 
was to be given to the word 'accident,' but that it was to be 
regarded as used in its popular or ordinary sense. . . . Acci- 
dent might mean an accident external to, distinct from, or in 
addition to, the injury to the man, or the accident might 
mean . . . nothing wrong or no mishap apart from the ac- 
tual injury sustained by the man himself. The accident was 
not the lid sticking ; the accident was the man rupturing him- 
self." 

That was approved in Clover v. Hughes (1910) 3 Butter- 
worth's Workm. C. C. 275, as applied to the English work- 
men's compensation act, where a person was ruptured by 
overexerting himself about his work. 

From numerous authorities such as those cited, Dawbarn, 
At page 100, deduced this rule : 

"Roughly speaking, accidents divide into two great 
classes — (a) Accidents popularly known as such, such as 
railway accidents, breakdown of machinery, explosions, col- 
lisions, etc., where persons injured by them are spoken of as 
injured by accident; and (b) accidents where there is no 
such external mishap, but where the man injures himself, as 
he would say, by accident, when he either strains a muscle, or 
ricks his back, or ruptures himself, or otherwise hurts him- 
self in an unexpected manner." 



11] JAXUAEY TEEM, 191C. 183. 

Bystrom Brothers v. Jacol>8on, 162 Wis. 180. 

These further English cases are cited in support of that 
conclusion and illustrating it: Timmins r. Leeds F. Co. 85 
L. T. Kep. 120, where a man strained his back in lifting a 
plank which unexpectedly stuck owing to frost ; Boardman v. 
Scott J [1902] 1 K. B. 43, where a man strained himself in 
adjusting a beam he was carrying; Stewart v, ^Yilsons & C 
C. Co, 5 Session Cas. (1902-3) 120, where a minor injured 
himself trying to replace a derailed hutch; and M'Innes v, 
Dunsmuir, 45 Scot. L. Eep. 804, where a man brought on a 
cerebral hemorrhage by overexerting himself. 

Like conclusions as those above are drawn from the authori- 
ties in Boyd, Workmen's Compensation, sec. 458, and 1 Brad- 
bury, Workm. Comp. Law (2d ed.) 367, cited to our atten- 
tion. From the former we quote: 

"With good reason, strains sustained by employees of nor- 
mal health in raising unusual weights in the course of em- 
ployment are generally regarded as accidental injuries." 
"Ruptures resulting from lifting heavy objects are generally 
held fortuitous and unexpected events, in other words, acci- 
dents." 

Quite commonly these words from Fenton v. Thorley, 89* 
L. T. Rep. 314, are quoted with approval: "If a man, in lift- 
ing a weight, or trying to move something not easily moved,, 
were to strain a muscle, or rick his back, or rupture himself, 
the mishap, in ordinary parlance, would be described as ac- 
cidental." . 

There are several American authorities to the same effect 
as the foregoing, to which we are referred, and among them 
are the following: Fishers Case, 220 Mass. 581, 108 IsT. E. 
361; Zappala v. Industrial Ins, Comm, 82 Wash. 314, 144 
Pac. 54; Voorhees v. Smith SchoonmaJcer Co, 86 N. J. Law, 
500, 92 Atl. 280; Poccardi v. Public Service Comm, 
(W. Va.) 84 S. E. 242. 

The broad meaning attributable to the word "accident," as 
above indicated, and which is called for by the spirit of the 



184 SUPREME COURT OF WISCONSIN. [Feb. 

Bystrom Brothers v. Jacobson, 162 Wis. 180. 

Workmen's Compensation Act, was adopted by this court in 
Vennen v. New Dells L. Co. 161 Wis. 370, 154 N. W. 640. 
There the court said: 

"The term 'accidental,' as used in compensation laws, de- 
notes something unusual, unexpected, and undesigned. The 
nature of it implies that there was an external act or occur- 
rence which caused the personal injury. ... It contem- 
plates an event not within one's foresight and expectation, 
resulting in a mishap causing injury to the employee." 

The contracting of typhoid fever by an employee by his 
drinking impure water furnished by the employer, was held 
to satisfy all the calls of that definition. It seems, as coimsel 
for respondents contend, that such calls are quite as well sat- 
isfied by the circumstances here. The thing which occurred 
was somewhat unusual. It was unexpected and undesigned. 
There was an external occurrence. The lifting of the heavy 
block while the workman was not in an advantageous posi- 
tion to do so, required him to unduly strain the muscles of 
his right side. The undue strain was not foreseen or ex- 
pected. A mishap resulted, — ^a muscular spasm and conse- 
quent disability. There was, plainly, the physical causation 
spoken of in Milwaukee v. Industrial Comm. 160 Wis. 238, 
246, 151 K W. 247,— the effort to handle the block while the 
workman was so circumstanced as to cause a perilous strain 
on the muscles of his right sida 

We cannot well add anything of value by further discus- 
sion. As we have seen, authorities, English and American, 
generally agree that the term "accident" when used in work- 
men's compensation laws, should be taken in the broad sense 
above indicated, — as including a violent straining of the 
muscles, resulting in a rupture or other bodily hurt to an em- 
ployee from over-physical exertion in performing his work. 
It is considered that it was so used by the legislature in 
sub. (3), sec. 2394 — 3, of the Statutes, and that the trial 
court in this case reached the correct conclusion. 

By the Court. — The judgment is affirmed. 



1] JANUARY TERM, 1916. 185 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 186. 



J. I. Oase Plow Wobks, Respondent, vs. J. I. Case Thresh- 
ing Machine Company, Appellant, and others, Re- 
spondents. 

Septemher 18, 1915— -February 1, 1016, 

Trade-marks and trade-names: Unfair competition: Use of similar cor- 
porate names: Distinguishing between products: Injunction: Be* 
livery of imperfectly addressed wMl: Constitutional law: What 
name may he taken by new corporation: Costs: Limiting amount: 
When disbursements not included. 

1. A man may manufacture and sell unpatented articles and use his 

own name in doing so, but if another has previously and rights 
fully made that name valuable as a trade-name descriptive of the 
same kind of goods he has created a property right therein which 
may not be appropriated by a subsequent manufacturer, even 
though he bear the same name; and, if necessary to prevent that 
result, conditions and limitations upon the use of the name wlU 
be 'enforced by the courts, which will preserve to the first manu- 
facturer the fruits of his industry and prevent the public from 
being misled. The extent of these conditions and limitations 
varies according to the circumstances of the case and is limited 
only by their sufficiency to accomplish the result named. 

2. Plaintiff, the J. I. Case Plow Works (founded by J. I. Case), which 

for many years has manufactured plows and sold them under the 
trade-name "Case" or "J. I. Case," is held to be entitled to the ex- 
clusive use of that trade-name on plows and in advertisements 
thereof, as against defendant the J. I. Case Threshing Machine 
Company (also founded by J. I. Case), which for many years 
manufactured and sold threshing machines and only recently 
began the manufacture and sale of plows. 

3. The fact that some part of the public had no exact knowledge as to 

what company manufactured the "Case" plow, and many sup- 
posed it to be made by the same institution, or a branch thereof, 
which made the threshing machines, did not affect plaintifTs 
right to the exclusive use of that trade-name on plows. 

4. Neither the said trade-name nor the trade-mark of said defendant 

(which embodies the name "J. I. Case" prominently displayed) 
may be used upon plows made by defendant; and this applies 
equally to plows sold singly or In gangs or as part of an engine- 
drawn plowing outfit. 
6. A complete denial of the right of said defendant to affix Its cor^ 
porate name to its plows not being deemed necessary, however, 



186 SUPREME COURT OF WISCOXSIN". [Feb. 

J. r. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

there may be placed on the plow or beam a statement that it is 
made by or for said company, provided there shall also be placed 
thereon and conspicuously displayed the words "NOT the origi- 
nal Case plow," or "NOT the Case plow made by J. I. Case Plow . 
Works." 

6. In its advertisements, catalogs, or other printed matter said d^ 

fendant must not use in immediate connection with matter re- 
lating to plows or plowing machinery its trade-mark nor the 
trade-name "Case" or "J. I. Case" alone or in combination with 
other words. It may state directly or Inferentially that it man- 
ufactures the plows; but there must be conspicuously inserted or 
displayed in and as part of each such advertisement, catalog, or 
• collection of printed matter the words "Our plows are not the 
original Case plows" or "Our plows are not the Case plows made 
by the J. I. Case Plow Works." 

7. Defendant having, before plaintiff did so, made and sold a trian- 

gular platform or attachment used as a connecting device with 
engine-drawn gang plows, and plaintiff having acquired no right 
to use the said trade-name thereon, defendant may sell such at- 
tachment with or without the plows: if sold without plows at- 
tached it may have the trade-name "Case" or "J. I. Case" or de- 
fendant's trade-mark or corporate name thereon, but must have 
conspicuously displayed thereon the words "NOT made by the 
J. I. Case Plow Works;" if it is sold with plows attached as a 
plowing unit defendant must not place thereon said trade-name, 
trade-mark, or corporate name but may state thereon that it is 
made by the J. I. Case Threshing Machine Company in immedi- 
ate connection with a conspicuous statement that the "Plows at- 
tached are not the original Case plows," or, at its option, the 
words "Plows attached are not the Case plows made by the J. I. 
Case Plow Works." ' 
■8. J. I. Case founded the defendant J. I. Case Threshing Machine 
Company and later the plaintiff, J. I. Case Plow Works, in the 
same city. The two concerns became competitors and confusion 
arose as to the delivery of mail matter imperfectly addressed, as 
to Case & Co., or to J. I. Case Company, or to J. I. Case & Co., etc. 
Afterwards a subsidiary corporation, the J. I. Case Company, 
was organized to act as selling agent for the Plow Works. 
The postofflce department, after a hearing, ordered that all 
mail addressed to J. I. Case Company or J. I. Case Co. without 
other designation of street number or address be delivered to the 
Threshing Machine Company. The trial court directed all de- 
fectively addressed mail matter should be delivered to the 
Threshing Machine Company, but should be opened and its dis- 
tribution determined by a representative of the Threshing Ma- 



1] JANUARY TERM, 1916. 18T 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

chine Company in the presence of a representative of the Plow 
Works, who should have full opportunity to examine and take 
notes from any disputed mail matter so that the court might be 
applied to for an order as to its disposition. Held, that such di- 
rection was proper, that it did not conflict with the determina- 
tion of the postofflce department, did not interfere with personal 
liberty or with the right of privacy, and did not violate the con- 
stitutional provision against unreasonable searches. 
9. The new corporation, J. I. Case Company, which wbb organized 
hurriedly as an expedient to prevent the Threshing Machine 
Company from assuming that name and also as a means of add- 
ing greater confusion to the mail situation and of reaping bene- 
fit from the confusion in the public mind as to the identity of the 
two senior corporations, was properly enjoined from selling, as- 
agent of the Plow Works or on its own account, tractors or 
tractor-drawn plows — ^it appearing that the Plow Works had 
never made tractors and that the Threshing Machine Company 
had done so and had a right to make and sell them under its cor- 
porate name and trade-mark and even under the trade-name 
"Case," so that it would be unfair for the Plow Works to embark 
in the tractor business through a corporation bearing the name 
J. I. Case Company. 

10. Qufgre, whether under sub. (2), sec. 1772, Stats., — ^providing that 

the name assumed by a corporation '^hall be such as to distin- 
guish it from any other corporation organized under the laws of 
this state," — the new corporation could lawfully take the name 
J. I. Case Company. 

11. The word "costs" in an order for Judgment limiting the recovery 

of costs to a certain sum, is held to have been used by the trial 
court and understood by all parties in the sense of attorneys' 
fees, as distinguished from disbursements; and the clerk's taxa- 
tion of costs including disbursements at a larger sum was not 
improper. 

Appkal from a judgment of the circuit court for Racine 
county: W. J. Tueneb, Judge. Modified and affirmed. 

This is a case of alleged unfair competition in trade. The 
plaintiff and respondent (hereinafter called the Plow Works) 
brought the action to enjoin the appellant (hereinafter called 
the T. M. Company) from using the name "Case" or "J". I. 
Case," either alone or in combination with other words, upon 
plows or plow machinery sold by it, as well as in advertising 
such plows and plow machinery, on the ground that these 



188 SUPREME COURT OF WISCONSIN. [Feb. 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

names had become valuable trade-names to the use of which 
upon plows the Plow Works had acquired the exclusive right. 

A subsidiary controversy arising upon a cross-complaint 
filed by the T. M, Company will be set forth later in this 
statement. 

The testimony was voluminous and superficially contradic- 
tory, but there was really little dispute as to the fundamental 
and material facts. These facts will be briefiy sununarized, 
using as a basis either uncontradicted evidence or findings of 
fact made by the trial court based on sufficient evidence. 

The Plow Works is a corporation located at Racine which 
for many years has manufactured plows and tillage machin- 
ery. The r. M. Company is also a corporation which has 
for many years manufactured threshing machines at Racine 
and during recent years has extended its activities into other 
lines, among which are engine-drawn gang plows. Both cor- 
porations were founded by Jerome I. Case, who began the 
manufacture of threshing machines at Racine in 1842. He 
built up a great and profitable business and made the name 
"Case" well and favorably known among farmers and agri- 
cultural implement dealers. In 1863 he associated with 
himself three equal partners. The business continued and 
grew under the name J. I. Case & Company. In 1876 Case, 
with three others not interested in the firm of J. I. Case & 
Company, organized the Case- Whiting Company, a corpora- 
tion, for the purpose of making plows at Racine. Case 
owned a large amount of the stock. This company immedi- 
ately began manufacturing plows on a large scale, both com- 
mon walking plows and sulky plows, as well as harrows, cul- 
tivators, and tillage machinery of similar nature. In 1880 
the name of the corporation was changed to J. I. Case Plow 
Company. In 1884 it failed and its property and good will 
were sold to Mr. Case, who in 1885 organized the plaintiff 
company and conveyed to it the property of the former com- 
pany including its good will The business of making plows 
continued without material interruption and has continued 



1] JANUARY TEEM, 1916. 189 



J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 1S5. 

ever since and the plows soon became generallj known in tlie 
trade and among farmers as the "Case" or "J, L Case" plows. 
J. I. Case owned practically all the stock of the plaintiff 
from the time of its organization until he transferred it in 
1890, just before his death, to his daughter and her husband, 
the latter being the defendant H. M. Wallis, now president 
of the Plow Works. The plows have acquired their reputa- 
tion under the name "Case," and the right to use the name 
on plows is unquestionably a valuable asset 

The T. M. Company was incorporated in 1880 by the part- 
ners in the firm of J. I. Case & Company and succeeded to 
the property, business, and good will of that firm, Case own- 
ing one quarter of the stocL The corporation continued the 
threshing-machine business of the firm and enlarged it 
^eatly. There was entire harmony between the two cor- 
porations for many years. Mr. Case was president of both 
companies up to his death in 1891. The T. M. Company 
made the "Case" threshing machines, and the Plow Works 
made the "Case" plows, and neither sought to invade the 
field of the other. 

The T. M. Company has placed upon its products for many 

years a trade-mark composed of the picture of an eagle upon 

a globe with the corporate name and business address upon 

the globe thus : 

J. I. Case 

Threshing Machine Ca 

Incorporated 

Racine, Wis. 

TJ. S. A. 

The trade-mark of the plaintiff, which has been used upon 
its products for many years, consists of the picture of a plow- 
4share held up by the hand against an illuminated background 
with the corporate name and address underneath, thus: 

J. I. Case 
Plow Works 
Racine, Wis. 

U.S. A. 



190 SUPKEME COURT OF WISCONSIN. [Feb. 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

As before stated the Case-Whiting Company commenced 
the manufacture of plows in 1876. That manufacture haa 
continued to the present time, and the plaintiff has succeeded 
to all the rights of the original company. The output at first 
consisted largely of ordinary walking plows, but horse-drawn 
sulky plows were also made, and some time prior to 1886 these 
sulky plows began to be made with gangs of two or three plow 
bottoms. The sulky plows were arranged with lifting levers, 
the handles of such levers projecting upward and backward 
just behind the seat of the driver so that he could conveniently 
^grasp them if necessary to lift one or all of the plows over an 
obstruction. In the early nineties the question of the prac- 
ticability of operating gangs of plows by means of a traction 
engine or "tractor" instead of horses was extensively consid- 
ered by the manufacturers and dealers in plows, and much 
experimenting done, with more or less satisfactory results. 
While the change from horse-drawn to engine-drawn plows 
was not rapid, some progress was made, and in 1893 the 
Plow Company began to make changes in some of its horse- 
drawn gang plows which would enable them to be attached ta 
tractors; these changes consisting in altering the position of 
the lifting levers so that they projected forward instead of 
backward in order that the operator standing on the footboard 
of the tractor might easily reach them. These gangs were 
sold to some extent during the years 1893 to 1903 inclusive, 
but how largely sold does not appear. They were in fact 
horse gangs converted into engine gangs by change in the po- 
sition of the levers. Gangs made specially for tractor pur- 
poses came several years later. About the year 1903 the de- 
mand for engine-draw'n gangs seems to have died down for a 
time, to be revived a few years later with the development of 
the gasoline engine. About the year 1908 numerous experi- 
ments were being made by plow manufacturers with new 
forms of tractors and improvements of various kinds in the 
mechanism of the gangs and their attachments. 



1] JANUARY TERM, 1916. 191 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

In 1909 the plaintiff endeavored to perfect a successful en- 
gine-drawn gang plow, and in November of that year sold two 
gang plows of that type which were successful, and since the 
spring of 1910 it has offered and sold said engine-drawn gang 
plow throughout the United States and Canada and marked 
the same with the words "Case" and "J. I. Case" as it marks 
its other products. The plaintiff has not itself entered on 
the manufacture of tractors, but in the fall of 1912 an asso- 
ciate company called the Wallis Company was organized by 
Mr. Wallis to manufacture tractors which could be sold with 
the plaintiff's engine gang plows as a complete plowing out- 
fit, and the plaintiff since that time has advertised and sold 
the Wallis tractor and its own gang plows together as one out- 
fit. This tractor has never been marked with the name 
''Case" or any compound of that name. 

In 1889 the T. M. Company made a steam traction engine 
for an inventor named Price which was intended to pull a 
gang of plows. Price bought plow bottoms of the plaintiff 
and attached the same to a triangular frame which was itself 
attached to the engine. This was experimental work and 
continued for some years, the defendant advancing Price 
money to carry on his attempt to produce a successful tractor. 
In 1893 Price had become indebted to the T. M. Company in 
the sum of $11,000, and, being unable to pay, he transferred 
to the T. M. Company all his rights in the engine, plow, and 
patterns, both finished and unfinished. The T. M. Company 
manufactured some of the Price plowing outfits (purchasing 
the plow bottoms from the plaintiff) and sold a few outfits, 
but the number of sales does not appear. They were adver- 
tised for two years as the "Jacob Price steam plowing outfit." 
In 1894 the T, M. Company issued a catalog devoted to the 
'Macob Price field locomotive, manufactured at the works of 
J. J. Case T, M, Company, Racine, for Jacob Price." In 
1893 the Plov: Works also advertised this outfit for sale as 
the "Jacob Price field locomotive and steam plow." It does 



192 SUPKEME COUET OF WISCONSIN. [Feb. 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

not appear how many of these outfits were sold by either 
party, but the machine was unsuccessful and the manufacture 
and sale seems to have ceased in 1897, having resulted in a 
loss to the r. M. Company. During all this time the defend- 
ant made no plows, but purchased such as it needed to com- 
plete the Jacob Price outfits from the plaintiff. In 1900 it 
assembled a heavy tractor engine plow, made up entirely of 
parts conveyed to it by Price in 1893, and used it in connec- 
tion with a new type of tractor engines at several exhibitions 
in the West. On the engine and gang of plows the name 
"Case" appeared in large letters together with the defendant'^ 
corporate name and the trade-mark. The entire outfit waa 
sold two years later to a farmer near Winnipeg. In 1902 
the defendant constructed an attachment in the shape of a 
triangular platform on wheels to be attached to the rear of 
their engine or tractor as a connecting link between the tractor 
and the plows, and having on the lower beam hooks for the 
purpose of attaching plow beams thereto. This attachment 
carried a coal bunker and water tank and was made and sold 
by the defendant from 1902 to the present time. It had 
stenciled on the side in large letters the word "Case" as well 
as the corporate name of the T. M. Company. It was sold 
without plows and was constructed so that gang plows of any 
standard make could be attached to it, and during the years 
from 1902 to 1912 373 of these attachments were sold by the 
T. M. Company. StiD it made no plows. 

In 1909 the T. M. Company built and experimented with 
an engine gang plow with individual beams, but sold none 
and abandoned the experiment. Nothing further was done 
by the defendant till the spring of 1910, when it manufac- 
tured what was called a "steam lift engine gang plow," which 
embodied a new invention and of which it sold during 1910 
and 1911 sixty-three outfits, of which twenty-seven were re- 
turned as unsatisfactory, and the sale practically ceased in 
1911. In these outfits the plows themselves appear to have 



1] JANUARY TERM, 1916. 193 

J. I. Case Plow Works v. J. I. Case T. M. Co. 1C2 Wis. 186. 

been manufactured by or expressly for the T. M. Company 
and were marked with the word "Case" in large letters and 
were so advertised. The advertising of these outfits as the 
"Case" plowing outfits in trade journals began in January, 
1911. Up to that time (with the exception of the plows ad- 
vertised with the Jacob Price plowing machinery) the T. M. 
Company had never advertised any plows in trade journals 
nor had it made any plows. In fact it advertised in its cata- 
logs up to 1909 that it did not manufacture or furnish plows. 
In January, 1912, the T, M, Company contracted with the 
Eacine-Sattley Company of Springfield, Illinois, for a large 
number of engine gang plow bottoms. They were made, 
marked "Case-Sattley engine gang plows," and sold by de- 
fendant through that season in connection with its engine 
made by itself at Racine, In 1913 another contract of the 
same kind was made, but the plows were marked "Case- 
Kacine," and they were sold in large numbers by defendant 
In the fall of 1914 the T. M. Company began making a light 
engine gang plow for use with a light tractor, the word "Case" 
being stenciled in large letters on the plow beams. This 
gang plow was very similar to the light engine gang plow 
manufactured and sold by the plaintiff for the same purpose 
in the latter part of the year 1914, and it has attained a con- 
siderable sale. There was also a small walking plow, de- 
signed for grading and breaking, marketed by the defendant 
beginning in the fall of 1910, which plow was made for the 
T. M. Company by a concern at Sidney, Ohio, and had on 
the beam the word "Case" in large letters. This plow is 
quite similar to two or three plows designed for similar uses 
made by plaintiff. It was sold and advertised as a "Case" 
plow. In 1912 the Plow Works and the T. M. Company, on 
the advice of counsel, jointly purchased a Canadian patent 
for steam-lift gang plows in order to protect themselves, each 
contributing one half of the expense, and they still own said 
patent in undivided shares. 

Vol. 162 — 13 



194 SUPKEME COURT OF WISCONSIN. [Feb. 

■ 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

The principal product of the T. M, Company has always 
been threshing machines, and these machines have been known 
as the "Case" or "J. I. Case" threshing machines for more 
than sixty years. During the last quarter of a century the 
r. M, Company has added other lines of manufacture, such 
as road machinery, traction engines, and automobiles. All 
this machinery has been known to the trade as the "Case" 
machinery, and in 1903 the defendant began and has since 
continued to brand its machinery of all kinds with the word 
"Case" in large letters, and to advertise it as the "Case" ma- 
chinery in trade journals. 

Up to about the time of the making of the contract be- 
tween the r. M. Company and the Racine-Sattley Company 
in January, 1912, the Plow Works had no knowledge that 
the T, M. Company had oflFered any plows for sale under the 
name "Case" or "J. I. Case" or intended to do so. It learned 
of the Sattley contract in March following, and immediately 
protested to the T, M. Company both verbally and in writing 
against the use of the name. Among purchasers of farm ma- 
chinery it has been generally supposed that the Plow Works 
and the Threshing Machine Works were simply branches of 
one concern. Since entering on the sale of engine gang plows 
and breaker plows in 1910 the T, M, Company has continu- 
ously and extensively advertised them as "Case" plows and 
plowing machinery or outfits, just as it advertised its other 
articles of manufacture, without notification of any kind 
that the plows were not the original Case plows. Both the 
engine gang plows and the breaker plows are quite similar in 
appearance and finish to the plaintiffs plows and are likely to 
be mistaken therefor by the ordinary observer. The evidence 
shows also that they have been mistaken therefor and that 
purchasers have, to a greater or less extent, actually been 
misled and have purchased the T, M, Company's product in 
the belief that it was the product of the manufacturer and 
vendor of the original "Case" plows. The different sten- 



1] JANUARY TERM, 1916. 195 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

cilings now used on plows by the two parties do not diiferen- 
tiate the plows to the ordinary observer, and some trade-name 
other than "Case" or "J. I. Case" must be used to make the 
purchasing public understand that the plows offered for sale 
by the T. M. Company are not those made by the plaintiff. 

For many years there has been some confusion in the de- 
livery of postal matter to the two corporations. Letters are 
continually being addressed to "Case & Co." or to "J". I. Case 
Company" or to "J. I. Case," and these letters so imperfectly 
addressed have generally been delivered to the T. M. Com- 
pany, and if upon examination they appeared to be intended 
for the Plow Works they were immediately sent to the latter 
concern. This was a satisfactory method until the two con- 
cerns became business competitors in the manufacture and 
sale of plows, at which time friction b^an to appear. In De- 
cember, 1911, the T. M. Company took the preliminary steps 
toward changing its name to the J. I. Case Company, and the 
officers of the Plow Works, learning of this action, at once 
caused to be organized a new corporation called the /. J. Case 
Company with $100,000 capital stock, and completed the or- 
ganization before the T, M, Company could complete the pro- 
ceedings which it had commenced for change of name, where- 
upon said proceedings were dropped. The incorporators of 
the new corporation were three grandsons of the original 
Jerome I. Case, one of whom bears the name of his grand- 
father. The purposes of this new organization were stated 
in its articles to be "the buying, selling, and dealing in real 
estate, securities, and merchandise within the state of Wis- 
consin and elsewhere," and it was organized to act as sales 
agent for the products of the Plow Works, but has as yet done 
no business. Its postoffice address is Station A, Racine, 
Wisconsin. 

Upon the organization of this new corporation in January, 
1912, it demanded of the postmaster at Racine that all mail 
arriving there directed to J. I. Case Company or /• /• Case 



196 SUPEEME COUKT OF WISCONSIN. [Feb. 

J. I. Case Plow Works v. J. I* Case T. M. Co. 162 Wis. 185. 

Co. be delivered to it, and the postmaster referred the de- 
mand to the postoffice department, where, after a hearing at 
which both sides appeared and were heard by counsel, an 
order was made May 21, 1912, directing that all mail directed 
as last aforesaid without other designation of street number 
or address be delivered to the T, M. Company. 

The court found as a fact that the names "Case" and 
"J. I. Case" have become associated in the public mind as the 
names of plows made by the plaintiff at its factory at Racine, 
and have acquired a secondary significance indicating the 
particular make of plows sold by the plaintiff, which names 
are of great value ; and that the reputation and good will of 
the "Case" plowj however drawn, was created by and belongs 
to the plaintiff. The court further found as a fact that the 
light engine-drawn gang plow manufactured and sold by both 
parties has been gradually evolved from the horse-drawn 
gang plow tor many years manufactured by the plaintiff and 
from the engine-drawn gang plow designed by Jacob Price. 
It seems that a number of manufacturers make and sell plows 
performing the same service as the gang plows drawn by light 
gasoline tractors which are now marketed by both the Plow 
Works and the T. M, Company and that there is no patent on 
such plows. 

The plaintiff in its original complaint joined the new cor- 
poration aforesaid (the J. /. Case Company) as a codef end- 
ant with the r. M. Company on the ground that it also 
claimed the right to have mail addressed to /. /. Case Co. or 
J. I. Case Company delivered to it, and hence that its pres- 
ence was necessary to settle the entire controversy. The de- 
fendant T. M. Company by way of cross-complaint alleged 
that the creation of said new corporation was a sham and a 
fraud perpetrated by H. M. Wallis, H. M. Wallis, Jr. (his 
son), and Jerome I. Case (second) for the purpose of appro- 
priating to themselves and to the Plow Works the trade-name 
"Case" and the good will of the T. M. Company, also for the 



1] JANUARY TERM, 1916. 197 

J. 1. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. . 

purpose of intercepting the T. M, Company's mail and di- 
verting to the Ploip Works orders sent by mail and intended 
for the T. M. Company. Thereupon the three last named 
gentlemen were made parties to the action. Upon the sub- 
sidiary questions raised by this cross-complaint the oonrt 
found that it would be inequitable for the recently organized 
/. /. Ca^e Company to act as selling agent of the Plow Works 
and that equity required that the mail addressed by the short 
or imperfect names before set forth should be delivered to 
the T. M. Company, except such as may be so addressed that 
the postal authorities can determine that it is intended for 
the plaintiff. 

The court found as conclusions of law: 

(1) That both parties are entitled to make and sell plows 
such as are now commonly in use, including engine-drawn 
plows, 

(2) That the plaintiff is entitled to the exclusive use, upon 
plows, tillage implements, and engine-drawn plows, also in 
its catalogs and advertisements, of the words "Case" and 
"J. I. Case" as the trade-name or designation of any descrip- 
tion of plows made and offered for sale by it. 

(3) That the defendant J. I. Case T, M. Co. be perpet- 
ually enjoined and restrained from selling or offering for 
sale any plows, walking plows, sulky plows, horse gang plows, 
engine gang plows, traction gang plows, whether drawn by 
animal or power propelled, with the name "Case" or "J. I. 
Case" thereon, or the word "Case" thereon as part of its cor- 
porate name, or the word "Case" in connection with other 
words, as "Case-Sattley" and "Case-Racine" thereon. 

(4) That the said defendant /. J. Case T. M. Co. shall be 
enjoined and restrained from using the name "Case" or 
"J. I. Case," in connection with any other words or letters, 
upon its plows, or in its catalogs or advertising matter, so as 
to carry the meaning to the purchaser or reader that it is 
manufacturing and selling, or selling, plows, the product of 
the plaintiff, and, to that end, it shall be restrained and en- 
joined from using any of the marks, either "Case," "J. I. 
Case," or its trade-mark or corporate name, upon any plows 



198 SUPREME COUET OF WISCONSIN. [Feb. 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

manufactured or sold by it, except that it may sell and adver- 
tise its product under another name so that it will be dis- 
tinctly understood by persons exercising ordinary care, when 
they buy plows from the defendant T. M. Company, that 
they are not acquiring a Case or J. I. Case plow. 

(5) That the defendant T. M. Company is entitled to 
maniif acture and vend the so-called ''plow attachment," being 
the triangular platform and levers thereon, together with its 
other accessories, but not with plows attached thereto, with 
the name "Case" or "J. I. Case" thereon, and its trade-mark, 
in addition thereto placing thereon words clearly indicating 
that it is not manufactured by the plaintiff. If, however, 
the same is sold by said defendant, together with the plow 
beams and bottoms, as a unit, then it is subject to the prohibi- 
tion as to marking provided in the fourth conclusion of law 
herein. 

(6) That the plaintiff is entitled to judgment restraining 
the defendant, its officers, agents, and servants, from repre- 
senting, or holding out, or giving out, in any manner, that 
the plows sold and offered for sale by it are the product of the 
plaintiff Plow Works, or that they are original Case plows. 

(7) That judgment shall be entered herein that the mail 
addressed "J. I. Case Company," "J. I. Case Co.," "Case 
Co.," "Case Company," "J. I. Case & Company," "J. I. 
Case & Co.," shall be delivered to the defendant the J. I. 
Case T. M. Company, unless addressed by street or number, 
or by some other designation, to the plaintiff. 

That all mail received by the defendant /. I. Case T. M. 
Company, addressed "J. I. Case Company," "J. I. Case 
Co.," "Case Company," "Case Co.," "J. I. Case & Com- 
pany," "J. I. Case & Co.," be retained by the defendant 
J. L Case T. M. Company until 11 o'clock in the forenoon 
of each secular day, at its office, and then be opened and dis- 
tributed by it, that intended for the plaintiff being forthwith 
transmitted to it; that at such time and place the plaintiff 
may have a representative to observe the opening of said mail 
and the distribution thereof. 

That the mail received between the hours of 11 o'clock 
a. m. and 6 o'clock p. m. be handled and disposed of in the 
same manner, with the same right to the plaintiff as just 
hereinbefore described, it being the intention of the court to 



1] JANUARY TERM, 1916. 199 

J. I. Case Plow Works v. J. I. Case T. M. Co: 162 Wis. 185; 

provide the manner of opening and disposing of the mail so 
that each of the parties, the plaintiff and the defendant 
T. M. Company, shall have an equal opportunity to examine 
the same at such time. 

That all mail, if any, received from the postoffice by the 
plaintiff, addressed '*J. I. Case Company," "J. I. Case Co.," 
^*Case Ciompany," "Case Co.," "J. I. Case & Company," 
''J. I. Case & Co.," shall be delivered by said plaintiff, un- 
•opened, to the said defendant /. 7. Case T. M. Company at 
11 o'clock in the forenoon of each secular day at its office, 
the same to be there opened and distributed in the same man- 
ner and with the same rights to each of the parties hereto 
therein as is hereinabove more particularly defined in rela- 
tion to mail so addressed delivered by the postoffice to said de- 
fendant J. I. Case T. M. Company. 

That the distribution of said mail shall be determined upon 
and made by an officer or representative of the defendant 
T. M. Company, but full opportunity shall be allowed th(i 
representative of the plaintiff to take notes from any disputed 
mail matter so that application can be made to the court for 
its order as to the disposition to be made thereof. 

Let judgment be entered in accordance with these find- 
ings, reserving therein the right to the court to make such 
further order or judgment with reference to the mail as the 
court may hereafter deem proper and equitable. 

Judgment was entered granting injunctive relief to the 
plaintiff practically in the words of the foregoing conclusions 
of law, and in addition thereto dismissing the cross-complaint, 
except that the /. L Case Company was perpetually enjoined 
from acting as selling agent of the Plow Works in selling 
tractors or engine-drawn plows or from selling the same on 
its own account. 

The T. M. Company appeals from the entire judgment ex- 
cept that part which adjudges that both parties are entitled 
to make and sell plows such as are now commonly in use, in- 
cluding engine-drawn plows. 

For the appellant there were briefs signed by Upham, 
Black, Russell & Richardson, attorneys, and Thom/is M. Kear- 



200 SUPREME COURT OF WISC0NS1:N. [Feb. 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

ney and William D. Thompson, of counsel, and oral argu- 
ment by Mr, Kearney and Mr. W, E, Black. 

For the respondent J. I. Case Plow Works there was a 
brief by QuarleSj Spence & QuarleSj attorneys, and Wm. C. 
QuarleSj Geo. P. Miller, and Mackey Wells, of counsel, and 
oral argument by Mr, Wm. C. Quarles, Mr. Miller, and 
Mr. Wells. 

For the respondent J. I. Case Company the cause was sub- 
mitted on the brief of Palmer & Oittings. 

The following opinion was filed December 7, 1915 : 

WiNSLow, C. J. This is a contest over the right to use a 
proper name as a trade-name. It is unique in that it is a 
struggle between two corporations for the exclusive right to 
use the name of their common founder upon certain products 
which both make. It is nof the too frequent case of bare- 
faced trade piracy, where one who happens to bear the same 
name as that borne by a successful manufacturer goes into 
the same business and endeavors to appropriate to himself 
that which he has done nothing to create, namely, the busi- 
ness good will attached to the name as the result of the ability 
and efforts of the first manufacturer. In a word, it is not the 
case of the business parasite. 

Each of the great corporations engaged in this struggle 
possesses the name of Jerome I. Case as a part of its own cor- 
porate name and rightfully so, because Mr. Case long ago en- 
dowed them with that name with the full consent of all who 
were then interested in either corporation. The idea doubt- 
less was to give each corporation all the prestige which that 
name had acquired in farming and industrial circles as the 
result of the successful manufacture of threshing machines 
for many years. It was not then supposed that there would 
ever be business rivalry between the two corporations. Each 
had its own field, and the thought unquestionably was that 
each would reap no small degree of profit from the use of the 
founder's name. 



^ 



1] JANUARY TERM, 1916. 201 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

Undoubtedly, also, both of these corporations have contrib- 
uted, each in its own field, to increase the value of the name 
as a business asset ; both are honest in their claims, and it is 
certain that both are very much in earnest. 

The fundamental principles which govern a case of this 
nature are not numerous nor are they difficult of abstract 
statement ; the principal difficulty consists in applying them 
to a concrete case. That difficulty is greater in the present 
case than it ordinarily is because of the fact that each party 
has an undoubted right to the advantages of the name in its 
own special sphere of business activity and that these spheres 
seem to impinge upon each other. This exceptional diffi- 
culty can hardly be said to be the fault of either party, yet it 
is a difficulty resulting from deliberate and voluntary action 
of the founder of the two corporations and his business col- 
leagues, through whom both of the parties here must trace 
their rights. None could have reaflonably anticipated this 
difficulty at the time the foundation for it was laid, but it has 
<!ome naturally and almost inevitably as the result of the de- 
velopment of the tractor as a motive power. 

The solution of the difficulty should be sought by both par- 
ties, not with ill-feeling or rancor, but in good temper with 
that broad vision and desire to deal fairly and honestly with 
«ach other which ought always to characterize the acts of men 
of large affairs who are intrusted with the management of 
great business interests and who aspire to lead in the indus- 
trial world. 

The legal principles which are controlling here are simply 
the principles of old-fashioned honesty. One man may not 
reap where another has sown nor gather where another has 
strewn. A man may manufacture and sell unpatented ar- 
ticles and use his own name in doing so, but if another has 
previously and rightfully made that name valuable as a trade- 
name descriptive of the same kind of goods he has created a 

• 

property right therein which may not be appropriated by a 
subsequent manufacturer, even though he bear the same 



202 SUPKEME COUKT OF WISCONSIN. [Feb. 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

name; aiid^ if necessary to prevent that result, conditions and 
limitations upon the use of the name will be enforced by the 
courts, which will preserve to the first manufacturer the fruits 
of his industry and prevent the public from being misled. 
The extent of these conditions and limitations varies accord- 
ing to the circumstances of the case and is limited only by 
their sufficiency to accomplish the result named. Much more 
might be said, but little would be gained thereby which would 
be helpful in the present case. Fish Bros. W. Co, v. La 
Belle W. Works, 82 Wis. 546, 62 N. W. 595 ; Phomix Mfg. 
Co. V. WhUe, 149 Wis. 287, 135 K W. 891 ; Russia C. Co. 
V. Le Page, 147 Mass. 206, 17 N. E. 304 ; Singer Mfg. Co. 
V. June Mfg. Co. 163 U. S. 169, 16 Sup. Ct 1002; Herring- 
Hall'Marvin S. Co. v. Hall's 8. Co. 208 U. S. 554, 28 Sup. 
Ct 360 ; Waterman Co. v. Modem Pen Co. 235 U. S. 88, 35 
Sup. Ct. 91 ; Guth C. Co. v. Outh, 215 Fed. 760. 

There can be no doubt here that the plaintiff has a right 
to the use of the name "Case" or "J. I. Case" as a trade- 
name descriptive of plows, and that such right is a valuable 
right which it is the duty of the court to protect 

The plaintiff and its predecessor (to whose rights it has 
succeeded) commenced to make plows in 1876, has been mak- 
ing them ever since, and has built up a large business. These 
plows have become favorably known to the trade and to farm- 
ers generally as the "Case" plows. Beginning with the sim- 
ple walking plow, the plaintiff soon began to manufacture 
single sulky plows and sulky gang plows, and still later to 
manufacture gang plows to be drawn by tractors or engines. 
These engine-drawn gang plows presented some differences in 
details of construction and in arrangement of levers. They 
were just as truly plows, however, as was the walking horse 
plow which the plaintiff first made, or as was the simple tool 
laboriously hammered out by the village blacksmith two cen- 
turies ago. The claim that the engine-drawn plow outfit is a 
separate and distinct composite tool and hence cannot be said 



1] JANUAKY TERM, 1916. 203 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

to be in competition with plows, cannot be entertained for a 
moment A plow is a plow however drawn. 

The contention is further made that because some part of 
the public had no exact knowledge as to what institution or 
company manufactured the "Case" plow, and because many 
supposed it to be made by the same institution or a branch of 
the same institution which made the threshing machines, there- 
fore the Plow Works have no property right in the trade-name 
"Case." This claim is very plainly untenable. The impor- 
tant fact is that the name "Case," as applied to plows, has 
become a valuable thing, t. e. that it is well known that some 
institution has been making the "Case" plow for many years 
and has made it a success, and hence that the purchasing pub- 
lic is inclined to buy it rather than a plow which has no such 
history behind it. 

The institution which has stood behind the plow and, by its 
energy and business sagacity, has endowed it with its history 
and its success is the institution which is entitled to profit by 
that history now, even though its identity has not always been 
understood by its patrons. 

No claim can be successfully made that the defendant 
r. 3f. Company ever made or attempted to make plows and 
put them upon the market until the experiment with the so- 
called "steam-lift" plow in the spring of 1910, which experi- 
ment proved a failure and was abandoned the following year. 
The first real plow competition began with the making of the 
"Case-Sattley" contract in January, 1912, and as soon as this 
step was brought to the plaintiff's attention protest was made, 
followed a few months later by the commencement of this ac- 
tion. Even should the experiment of 1910 be considered as 
an entry by the T. M. Company into the plow business using 
the trade-name "Case," there can be no claim made that the 
T. M. Company has acquired any additional rights thereby. 
There is no showing of laches after that date, and the fact re- 
mains that even then the right to use the name "Case" as a 



204 SUPEEME COUET OE WISCONSIN. [Feb. 
J. I. Case Plow Works t. J. I. Case T. M. Co. 162 WU. 186. 

trade-name for plows had been the property of the plaintiff 
for many years. 

It is clear, therefore, that the defendant T, M. Company 
cannot be allowed to use the name, either alone or in combi- 
nation with other words, as a trade-name upon any plows or 
in advertising any plows which it sells, whether such plows 
be walking plows, or sulky plows, or gang plows to be drawn 
by horse or engine power; and the word "plows" as used in 
this sentence covers plow bottoms, beams, levers, and any 
other incidental parts necessary to the operation of the im- 
plement which do not form a part of the attachment next to 
be spoken of. Whether they should be allowed to use their 
corporate name or their corporate trade-mark thereon is to be 
considered later. 

It appears that in order successfully to operate engine- 
drawn gang plows there must be a connecting structure or 
platform of triangular shape which may be utilized for cai^- 
riage of fuel as well as for the furnishing of the necessary 
diagonal beam with hooks to which the plows themselves are 
attached. This so-called attachment has been made and sold 
by the T. M. Company since 1902 and has had the name 
"Case" as a trade-name stenciled in large letters on its side 
in addition to the corporate name of the company. The 
plaintiff does not claim to have made any such device, at least 
until very recently, or to have acquired any right to use the 
word "Case" as a trade-name thereon. 

The plaintiff claims, however, that, because this attachment 
is generally, if not universally, sold with the plows as a part 
of a single complete outfit or tool, the use of the name "Case" 
as a trade-name thereon is fully as misleading as the use of 
that name upon the plows themselves ; and this seems entirely 
reasonable and accords with the conclusions reached by the 
trial court. If the attachment is sold with plows attached 
thereto, we are satisfied that it should not bear the name 
"Case" as a trade-name or any combination of words contain- 



1] JANUAEY TERM, 1910. 206 



J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 186. 

ing that name. The ordinary purchaser would certainly not 
be apt to differentiate between the attachment and the plows 
themselves^ and the name ''Case" blazoned on the side of the 
attachment would be quite as likely to carry to his mind the 
idea that the plows attached were the original Case plows as 
if it were placed on the plows themselves. It follows that 
the prohibition against the use of the trade-name on the at- 
tachment should be just as sweeping when it is soid with 
plows attached as the prohibition against its use on the plows 
themselves. As to the use of the corporate name or trade- 
mark thereon, that subject will be considered a little later. 

The foregoing propositions concerning the use of the trade- 
name as such upon the plows and the attachments seem dear 
and simpla Complications arise, however, when the ques- 
tion as to the use of the corporate name and trade-mark upon 
these articles is considered. On the part of the plaintiff it is 
claimed that inasmuch as the name "J. I. Case" occurs in the 
defendant's name and mark as well as in the corporate name 
and mark of the plaintiff^ the same misleading and prejudi- 
cial consequences will result if the T. M. Company be allowed 
to use its name and mark, or either of them, upon the plows 
or attachments as would result from the use of the single 
word as a trade-name. On the other hand it is claimed that 
the defendant cannot be deprived of the use of its lawful 
name or trade-mark upon its products which it has the right 
to manufacture and sell. 

It seems fairly clear from the wording of the findings and 
judgment that the trial court agreed with the plaintiff's con- 
tention so far as the plows themselves are concerned and 
prohibited the T. M, Company entirely from placing its cor- 
porate name or trade-mark thereon, but as to the attachment 
the conclusion seems to be that trade-name, corporate name, 
and trade-mark might be used if plows were not sold with it, 
being accompanied by a clear statement that it is not manu- 
factured by the plaintiff. We confess to some difficulty in 



206 SUPREME COURT OF WISCONSIN. [Feb. 

J: I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

understanding just what conclusion the court reached with 
reference to the marking of the attachment when sold with 
plows attached as well as with reference to the advertising of 
plowing machinery. Subdivision (4) of the findings has 
been specially difficult of interpretation and we are not sure 
that we fully understand it now. The fault may well be 
OUTS. Our difficulty suggests, however, that others may be 
trouble in the same way, and as it is of the utmost impor- 
tance that the judgment should be so clear and unequivocal in 
its terms that no two constructions are possible, it seems that 
it would be well to modify the judgment and recast a number 
of the provisions so that there may be no possible doubt as to 
the meaning. 

As we construe the judgment it holds (1) that both parties 
are entitled to make plows; (2) that plaintiff is entitled to 
the exclusive use on plows and in advertisements thereof of 
the name "Case" or "J. I. Case;" (3) that the defendant 
T. M, Company is forbidden to use the said trade-name alone 
or in combination with other words or its corporate name or 
trade-mark on plows ; (4) that it is also forbidden to use the 
trade-name, corporate name, or trade-mark in advertising 
plows, except that it may advertise them under a trade-name 
so different that persons of ordinary care will understand 
when they buy plows of the T. M. Company that they are not 
acquiring a Case or J. I. Case plow (Query. Does this mean 
that the defendant may use its corporate name and trade- 
mark in plow advertisements provided it gives the plow itself 
a different name, such as "Badger" or other arbitrary 
name?); (6) that the T, M. Company may sell the attach- 
ment without plows and put the trade-name "Case" thereon 
as well as its trade-mark, attaching also words clearly show- 
ing that it is not manufactured by the plaintiff, but if it sells 
the same with plows, then it is subject to the prohibitory pro- 
visions of the fourth clause; (6) that the defendant T. M, 
Company is prohibited from representing in any way that 



1] JANUARY TEKM, 1916. 207 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

the plows which it sells are the plaintiiTs product or are the 
original Case plows. 

The first clause of the judgment is unappealed from^ hence 
it is the law of the case so far as it goes and need not be con- 
sidered.. 

The second clause agrees entirely with the conclusions al- 
ready reached and stated in this opinion and needs no further 
discussion. 

Consideration of the third clause brings us squarely to the 
question whether the defendant ought to be prohibited from 
placing its corporate name or its trade-mark on the plows 
themselves. 

On this question the defendant T. M, Company urges that 
it rightfully bears the name "Case" as a part of its corporate 
name and that it has rightfully acquired a property right in 
a trade-mark which embodies its corporate name, and it claims 
that it cannot be deprived of the use of its name or trade- 
mark upon its goods whatever the consequences may be to the 
plaintiff. There may be found many cases which say in sub- 
stance that a man cannot be deprived of the right to use his 
name in a lawful business by reason of the fact that the same 
name has become a trade-name owned by another, and this is 
undoubtedly true, but this does not mean that it may be used 
at all times or on all surfaces or in all possible ways; in a 
word, it does not mean that the use may not be subjected to 
such conditions as are adequate to protect the public against 
deception and business competitors against unfair competi- 
tion. It does mean, of course, that the right to use a proper 
name is not to be interfered with except so far as it may be 
necessary to accomplish the purposes mentioned. 

Is it necessary here ? The plaintiff answers in the affirma- 
tive because of the special circumstances which make confu- 
sion more than probable, namely, the fact that both the cor- 
porate name and the trade-mark of the defendant embody the 
name "J. L Case" prominently displayed, and thus in a meas- 



208 SUPKEME COURT OF WISCONSIN. [Feb. 

J. I. Caae Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

ure perform the same function and are to all intents and pur- 
poses as misleading to the average person as the trade-name 
alone. This argument is certainly forceful ; nevertheless we 
are not convinced that there should be a complete denial of 
the right of the defendant to affix its corporate name to its 
product. We do not say that this might not be done if there 
were no other way to prevent unfair competition and fraud, 
but we do say that it seems that it should be done only as a 
last resort 

Wo do not deem it necessary in this case. We think that 
the third clause of the judgment should be modified by adding 
at the end thereof an exception to the effect that there may 
be placed at some place on the plow or beam a statement that 
it is manufactured by the /. Z. Case T. M. Company of Ra- 
cine, but if this be done there shall also be placed in plainly 
legible letters on the beam or other equally noticeable place 
on the plow, and so conspicuously displayed as to readily at- 
tract the attention of the ordinary observer, the words "NOT 
the original Case plow," or, at defendant's option, the words 
"NOT the Case plow made by J. L Case Plow Works," the 
word "NOT" in either case to be in capitals. 

It seems to us that this plan will afford very complete pro- 
tection to the plaintiff. It means that neither the trade- 
name nor the trade-mark are to be used on plows, and only 
the corporate name in connection with a statement of manu- 
facture; but if this be done, one of the above warnings must 
accompany it. This applies equally to plows sold singly or 
in gangs or as part of an engine-drawn plowing outfit. 

The fourth clause, as before remarked, is the one which 
has impressed us as being likely to be misunderstood or con- 
strued differently by dift'erent minds. This we think should 
be recast and devo.ed to the advertising feature alone, be- 
cause the matter of the marking of the plows themselves will 
be fully covered by the third clause as modified. It is very 
evident that in the matter of advertising there are some con- 



1] JANUARY TEEM, 1916. 209 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wij. 185. 

siderations applicable to that feature alone. The T, M, Com- 
pany makes iiiauy and varied articles of machinery, and upon 
most if not all of them (excepting plows) it apparently is en- 
titled to use the name '"Case" as a trade-name as well as to 
use its corporate name and trade-mark as it may choose. It 
would not be reasonable to hold that it may not advertise and 
catalog its plows and plow machinery (which it rightfully 
makes and sells) in connection with its other products, and if 
it does so it follows that the trade-name, corporate name, and 
trade-mark will necessarily be capable of being used in more 
or less close proximity thereto. The better method here is 
doubtless to amend and modify the fourth clause so as to pro- 
vide that whenever and wherever the defendant T. M. Com- 
pany advertises or catalogs or makes public other printed 
matter relating to plows, plowing outfits, or plowing machin- 
ery, it must not use in immediate connection with the printed 
matter relating to plows or plowing machinery the trade- 
name "Case" or "J. I. Case" alone or in combination with 
other words nor the trade-mark. It may state directly or in- 
ferentially that it manufactures the plows, but there must be 
conspicuously inserted in and as a part of each such adver- 
tisement or catalog or collection of printed matter, in con- 
spicuous type and style which will necessarily arrest the at- 
tention of the ordinary person interested in the subject, the 
words "Our plows are" not the original Case plows," or, at its 
option, "Our plows are not the Case plows made by the /. /. 
Case Plow Works/^ It may, of course, give its plows an ar- 
bitrary name which has not already been appropriated by 
another plow maker, and may catalog and advertise them 
under that name, but even in that event the warning above 
given must be displayed in connection VTith the advertisement 
or descriptive matter in the catalog. 

The fifth clause relates to the triangular attachment before 
spoken of. This clause also seems to us to be liable to be 
misunderstood, and we therefore think it should be modified 
Vol. 162 — 14 



210 SUPKEME COURT OF WISCONSIN. [Feb. 

J. I. Case Plow Works t. J. I. Case T. M. Co. 162 Wis. 185. 

and recast entirely so as to provide that the defendant T, M. 
Company is authorized to make and sell the attachment 
either alone or with the tractor or with the tractor and plows 
as a complete outfit. If sold without plows attached^ whether 
with or without tractor, it may be sold with the trade-name 
"Case" or "J. I. Case" thereon or its corporate name or trade- 
mark or with all of them, but in either event there must be 
placed thereon, in close proximity and in conspicuous letter- 
ing so as to attract the attention of the ordinary observer, the 
words "Not made by the J. I. Case Plow Works." In case, 
however, it is sold with plows attached as a plowing unit, the 
said defendant is prohibited from placing said trade-name, 
corporate name, or trade-mark thereon, but may state only 
thereon that the same is manufactured by the «7. I. Case T. 
M. Company, and in immediate connection therewith, con- 
spicuously displayed so as to be noticed by the ordinary ob- 
server, the words "Plows attached are not the original Case 
plows," or, at its opition, the words "Plows attached are not 
the Case plows made by the /. 7. Case Plow Works/' 

The sixth clause is a general clause which does not require 
modification or attention. 

The seventh division of the judgment, embracing several 
clauses, relates entirely to the matter of the reception and 
disposal of the imperfectly addressed mail. The difficulty 
here is unquestionably a real one, but one for which no one 
now in the active management of either concern can be held 
to be responsible. Its foundation was laid by Mr. Case when 
he gave his name to the corporations located in the same city 
and engaged in manufacturing articles closely allied in their 
uses and appealing to the same general body of consumers. 
This difficulty also should be met by the men who have thus 
inherited it with fairness and an earnest attempt to solve it in 
a manner just to both companies. In a word, they should 
meet it like gentlemen, not like angry boys. 

The judgment of the' court below provides in substance that 



1] JANUARY TERM, 1916. 211 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

all defectively addressed mail shall go from the postoffice to 
the T. M. Company and be opened by a representative of 
that company at 11 o'clock a. m. and at 5 o'clock p. m. in the 
presence of a representative of the Plow Works, that the dis- 
tribution of the mail shall be determined by the representa- 
tive of the T. M. Company j but that the representative of the 
Plow Works shall have full opportunity to examine and take 
notes from any disputed mail matter so that the court may be 
applied to for an order as to its disposition. 

We see no valid legal objection to this portion of the judg- 
ment. Whether it will prove satisfactory in practical oper- 
ation may be a more serious question. It does not conflict in 
any way with the determination of the postoffice department, 
but grasps the situation after the postal authorities have com- 
pleted their work. At this point the court exerts its au- 
thority over the persons of the parties and directs what shall 
be done by each to insure to the other equitable and fair treatr 
ment of a troublesome and doubtful question. There is no 
interference with personal liberty or with the right of privacy, 
nor is there any violation of the constitutional provision 
against unreasonable searches. These ideas are mere hob- 
goblins conjured up by an overwrought imagination. 

The case is this: The name of the addressee upon a 
piece of mail is a name not borne by any person or corpora- 
tion. Two corporations, however, rightfully bear names 
very much like it No one can tell which one the writer in- 
tended to name. The postoffice department directs that it 
shall be delivered to the elder institution and it is so deliv- 
ered. The court, having both parties before it, now directs 
that after such delivery it shall be opened by the representa- 
tive of the elder institution in the presence of the representa- 
tive of the younger institution in order that both parties may 
be advised at once of the contents, and that application may 
be made to the court for relief in case the letter is assigned to 
the firm for which it was not intended. If a court of equity 



212 SUPREME COUET OF WISCONSIN. [Feb* 

J. I. Case Plow Works v. J. I. Case T. M. Co. 1C2 Wis. 185. 

cannot deal effectively with such a situation when it is in- 
volved in and is really a part of an equitable controversy of 
which it already has jurisdiction, it would seem to be impo- 
tent indeed. We hold that it can, and so holding we arrive 
at the conclusion that this subdivision of the judgment need& 
no modification. 

After thus providing for the treatment of defectively ad- 
dressed mail the court dismissed the cross-complaint of tho 
T. M. Company except that it perpetually enjoined the newly 
organized corporation (the J. /. Case Company) from acting 
as selling agent of the Plow Works in the sale of tractors and 
tractor-drawn plows, and from selling the same on its own ac- 
count. This latter provision is complained of by the said 
J. I. Case Company in a brief filed in its behalf although 
that company took no appeal. This right is claimed under 
sec. 3040a^ Stats, (sec. 8, ch. 219, Laws 1915), by which it i& 
provided that any respondent may have a review of rulinga 
of which he complains by serving on the appellant, before the 
case is set down for argument, a notice stating in what re- 
spect he asks for review, reversal, or modification. This act 
went into effect September 1st of the present year and the re- 
spondent served its notice September 10, 1915, while the case 
had been set down for argument in the preceding August 
It seems, therefore, that we might well refuse to consider the 
question, but we have deemed it best to give it examination to 
the end that there may be no groimd for saying that consid- 
eration has not been given to all phases of the controversy.. 
The contention of the J, L Case Company, so called, does not 
make a strong appeal to the mind which is striving to look at 
the whole matter fairly and impartially. The company was 
organized hurriedly as an expedient to prevent the T. M, 
Company from changing its name and assuming the name of 
the J. I. Case Company. It was evidently intended also to- 
serve as a means of adding still greater confusion to the mail 



1] JANUARY TERM, 191C. 213 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

situation and reaping, if possible, the benefit of the confusion 
in the public mind as to the identity of the two senior coi^ 
porations. 

These objects can hardly be approved of or held to be con- 
sistent with anything like a high code of business ethics. 

In view of our statute (sub. (2), sec 1772, Stats.), which 
provides that the name assumed by a corporation "shall be 
such as to distinguish it from any other corporation organized 
under the laws of this state," it may well be considered aa 
doubtful whether, under the circumstances of confusion in 
the public mind here present, the name J. /. Case Company 
could lawfully be adopted by any corporation. Is it such a 
name as will distinguish the corporation adopting it from any 
other corporation ? Is it not, on the other hand, a name that 
will inevitably confuse the corporation adopting it with one^ 
if not two, existing corporations ? 

These questions are not presented so that they can be au- 
thoritatively answered in this case, but we suggest them as 
(Questions for the serious consideration of all parties to this 
litigation. 

The court was evidently of opinion that it would be unfair 
competition in trade for the newly organized subsidiary com- 
pany, called the J. L Case Company, to act as selling agent 
for the plaintiff in selling tractors and engine-drawn plows, 
and in this conclusion we concur. So far as the tractor itself 
is concerned, the T. M. Company had a perfect right to make 
and sell it under its corporate name and trade-mark and even 
under its trade-name "Case." The plaintiff company never 
made a tractor, and it is clear that it had no right in equity 
to launch a subsidiary corporation bearing a name which 
would at once be mistaken by the public for the defendant's 
name, and embark it in the tractor business as the plaintiff's 
agent in direct competition with the defendant. This is do- 
ing, by indirect means, just what the plaintiff claims that the 



214 SUPEEME COURT OF WISCONSIN. [Feb. 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

T. M. Company has done with reference to plows. "He who 
seeks equity must do equity" is just as good a rule now as it 
ever was. 

There are a number of lesser contentions made which we 
do not deem it necessary to treat specifically. They are over- 
ruled without comment but not without having received at- 
tention. 

The trial court directed in the findings that the plaintiff 
should recover costs against the T. M^ Company in a sum not 
exceeding $500. In the judgment, signed by the trial judge 
himself a few days later, it was adjudged that the plaintiff 
recover of the T. M. Company "its costs which are limited to 
five hundred dollars ($500) and its legal disbursements made 

or incurred herein, amounting together to dollars." 

Three weeks later costs were taxed by the clerk at the sum 
of $290.88 for attorneys' fees and $858.87 for disburse- 
ments, amounting to $1,149.75 in all, and these sums in- 
serted in the judgment. No appeal was taken from the tax- 
ation of costs. 

It is now claimed that the entry of the judgment, being a 
ministerial act, must follow the order for judgment, which, 
as it is claimed, limited the costs, including disbursements, to 
the sum of $500. 

"Costs" in its exact sense includes disbursements (sec. 
2921, Stats. ; Emerick v. Krause, 52 Wis. 358, 9 N. W. 16), 
but the word is not infrequently used as meaning attorneys' 
fees in contradistinction with disbursements, and it is very 
clear by the wording of the judgment "in this case, signed by 
the judge himself, that he understood that he had used the 
word in this latter sense in the order for judgment. It is 
quite certain that the parties so understood it, for we are not 
informed by the appellant that any objection was made to 
the taxation or any review thereof asked in the trial court. 
When it is evident that the court used the word in this inex- 
act but colloquial sense and that all parties understood that it 
was so used, we see no objection to so construing it. 



1] JANUAKY TERM, 1916. 215 

J. I. Case Plow Works v. J. I. Case T. M. Co. 162 Wis. 185. 

By the Court. — Judgment modified as indicated in thi& 
opinion and as so modified affirmed, without costs, except that 
appellant is to pay the fees of the clerk of this court to be 
taxed. 



The following opinion was filed February 1, 191G : 

Per Curiam. A motion in the nature of a motion for re- 
hearing is made by the appellant asking that the language 
of the opinion be slightly changed in one particular. The 
opinion provides in effect that when the appellant sells or 
offers for sale a plow it may, under certain conditions, place 
at some place on the plow or on its beam a statement that it 
is manufactured hy the J, I. Case Threshing Machine Com- 
pany. The appellant calls attention to the fact that it has 
on hand a stock of plows manufactured for it by the Racine- 
Sattley Company and is under contract to purchase more 
plows of the same company, and that it cannot truthfully 
mark such plows as manufactured "hy'^ it, and hence that, 
unless it be permitted to mark them "manufactured for" it, 
there can be no marking placed upon them at all. 

It seems clear that the appellant should have the privilege 
suggested. The opinion is therefore amended so as to pro- 
vide that the statement of manufacture above referred to may 
read "manufactured for the J, /. Case Threshing Machine 
Company'* in case such be the fact. In no other respect is 
any change made in the opinion. 



216 SDPEEME COTJET OF WISCONSIN [Feb. 

Citizens Savings & T. Ck). v, Rogers, 162 Wis. 216. 



Citizens Savings & Trust Company and another, Appel- 
lants, vs. BoGEBS, Trustee, and others, Respondents. 

November 16, 1915— February i, 1916, 

Banks and bdnkinff: Liquidation by commiaaioner of banking: Lia- 
bility for rent: Offaeta: Waiver: Bankruptcy: Rights of trustee: 
Possession of property: Surrender: Mortgagee in possession: 
Right to rents: Courts: Enforcing liability of commissioner of 
banking: Jurisdiction, 

L Where, pursuant to sec. 2022, Stats., the commissioner of banking 
takes possession of the property and business of a banking cor- 
poration and while Uquidating its afPairs occupies and uses prem- 
ises of which such corporation was lessee, he is liable to pay for 
such use out of the funds of the corporation in his hands; and 
the rent stipulated in the lease fixes the measure of such liabil- 
ity. 

« 

2. Where at the time the commissioner took charge of an insolvent 

trust company a certain sum was due to the company on open 
account from its lessor, and thereafter the lessor became bank- 
rupt and the commissioner and the trust company filed their 
claim on open account against such lessor in the bankruptcy pro- 
ceedings, stating in the proof of claim that the said sum was due 
over and above all setoffs, they thereby waived their right to off- 
set said sum against rent due the lessor. 

3. Amounts due to the trust company as interest on a mortgage given 

to it by its lessor and not included in said open account might 
be offset against rentals up to the time the lessor became a bank- 
rupt; but as to rents thereafter accruing the right of offset did 
not exist. 

4. The trustee in bankruptcy of the lessor, having become vested 

with the title and right to possession of the building, a part of 
which was leased to the trust company, was entitled to the rents 
so long as he elected to retain possession of the building in the 
interest of the creditors whom he represented. 

5. Where such trustee in bankruptcy afterwards elected to surrender 

the building to the trustee for the holders of the bonds secured 
by the mortgage on the building given by the bankrupt lessor, 
and the bankruptcy court so ordered and said trustee for the 
bondholders took peaceable possession without any protest from 
the mortgagor or its creditors, such possession entitled the trus- 
tee to collect the rents from the lessees, including the commis- 



1] JANUARY TEEM, 1916. 217 

Citizens Cavings & T. Co. v. Rogers, 162 Wis. 216. 



Bioner of banking and the trust company whose business was 
being liquidated. 

6. Where a mortgagee obtains peaceable possession of the mortgaged 

property he may retain it until his mortgage debt is paid and 
may collect the rentals although the rentals themselves were 
not specifically mortgaged. 

7. The bankrupt lessor and mortgagor having had only a ninety- 

nine-year leasehold interest in a part of the mortgaged building, 
and the trustee under the mortgage, after receiving possession 
from the trustee in bankruptcy, having in turn surrendered said 
part of the building to the owners, such owners became entitled 
either to their share of the rent thereafter accruing under the 
lease to the trust company or to the reasonable value of the use 
and occupancy of their premises by the commissioner of banking. 

8. Even assuming that the liquidation of the business of a banking 

corporation under sec. 2022, Stats., is not a proceeding in or 
under the direction of a court, but is an administrative proceed- 
ing carried on by the commissioner of banking, a court may 
nevertheless entertain Jurisdiction of an action against the com- 
missioner to recover a debt for which he is legally liable and 
which he refuses to pay. 

9. Where in such a case no action was brought, but creditors pro- 

ceeded by petitions in the liquidation proceeding in the circuit 
court and the banking corporation and the commissioner volun- 
tarily answered and the issues raised were without objection 
tried on the merits, the court had Jurisdiction both of the subject 
matter and of the parties. 

Appeal from an order of the circuit court for Milwaukee 
county: F. C. Eschweiler, Circuit Judge. Modified and 
dffinned. 

The Pereles Block in the city of Milwaukee is a five-story 
building with a frontage of sixty feet on Market Square and 
a depth of 120 feet on Oneida street. The Markwells are 
the owners of the north twenty feet covered by said block. 
The remaining portion of the block was formerly owned by 
the N. Pereles & Sons Company. In November, 1892. the 
Markwells leased the portion of the block owned by them to 
the Pereles Company and James M. Pereles for the period of 
ninety-nine years. In January, 1907, the Pereles Company 
leased to the Citizens Trust Company [which afterwards bo- 



218 SUPREME COURT OF WISCONSIK [Feb. 



Citizens Savings & T. Co. v. Rogers, 162 Wis. 216. 

came the Citizens Savings & Trust Company'] the basement 
and first two stories of the easterly forty feet of said block for 
a period of twenty years. On May 1, 1909, the Pereles Com- 
pany conveyed the entire block by warranty deed to the Clark 
Realty Company, a corporation. On May 1, 1909, the Clark 
Realty Company issued a trust mortgage to the Citizens Trust 
Company to secure an issue of bonds amounting to $140,000. 
This mortgage is now in process of foreclosure. On Oc- 
tober 2, 1913, the commissioner of banking took charge of 
the property and assets of the Citizens Savings & Trust Com- 
pany for the purpose of conserving the rights of the creditors 
of that institution. On February 22, 1914, the First Trust 
Company was appointed receiver for the Clark Realty Com- 
pany, and on April 3, 1914, Julius J, Goetz was appointed 
trustee in bankruptcy for such corporation. The trustee 
named in the trust mortgage having become insolvent, Fred 
W. Rogers was by order of the court substituted in its stead. 
On March 14, 1914, the bank commissioner and the insolvent 
filed a claim on open account against the Clark Realty Com- 
pany in the bankruptcy court for $2,180.14. Goetz took 
possession of the Pereles Block and retained the same until * 
June 30, 1914, when he abandoned or attempted to abandon 
the possession of it to Rogers. Thereafter Rogers attempted 
to take possession of the mortgaged premises and to exercise 
the rights in reference to the same that might have been exer- 
cised by the Clark Realty Company had it remained solvent. 
In the proceeding brought to foreclose the mortgage the ap- 
pointment of a receiver was asked for to collect the rents and 
profits, but the application was denied on the ground that the 
trustee was already in possession and that there was no neces- 
sity for the appointment of a receiver to protect the interests 
of the bondholders. On July 24, 1914, Rogers abandoned 
all claim under the mortgage to the portion of the block 
owned bv the Markwells. While the deed to the Clark 
Realty Company and the mortgage from the Clark Realty 



1] JANUARY TERM, 1916. 219 

Citizens Savings & T. Co. v. Rogers, 162 Wis. 216. 

Company covered the entire block, the grantors in the deed 
had no title or interest in the north twexnty feet of it except 
the ninety-nine-year lease referred to. After the banking 
commissioner took over the Citizens Savings £ Trust Com- 
pany he continued to occupy the portion of the block held 
under lease by that company and to use the same for the pur- 
pose of carrying on the business of liquidation down to the 
time of the trial. The conomissioner refused to pay any rent 
for the use of the part of the building occupied, either to 
Ooetz, the trustee in bankruptcy for the Clark Realty Com- 
pany, or to Rogers, the substituted trustee for the bondhold- 
ers. The respondent Ooetz applied to the court for an order 
requiring the commissioner of banking to pay to him, for the 
use and benefit of the creditors of the Clark Realty Company, 
rental from October 2, 1913, when the trust company became 
insolvent, to June 30, 1914, when he elected not to treat the 
building in question as an asset of any value for the general 
creditors whom he represented. It might be said that the 
position of the trustee was that the property was mortgaged 
for very much more than it was worth and that the expenses 
of upkeep and looking after the building amounted to sub- 
stantially as much as did the revenue derived therefrom. 

The respondent Rogers petitioned the court for an order 
directing the commissioner of banking to pay him the rent 
accruing from and after June 30, 1914. The Marhwells 
imited with him in this position, claiming to be entitled to a 
portion of the rents accruing on the outstanding leases. Rog- 
ers and the Marhwells agreed between themselves upon the 
division which should be made of such rents. The court 
made the orders prayed for, and the bankrupt trust company 
and the bank commissioner appeal therefrom to this court. 

For the appellants there were briefs by Flanders, Bottum, 
Fawsett & Bottum, and oral argument by C. F. Fawsett. 

For the respondents Fred W. Rogers, Nathan M. Mark- 
well, and Fannie Pereles Markwell there was a brief by 



220 SUPREME COURT OF WISCONSIN. [Feb. 

Citizens Savings & T. Co. v. Rogers, 162 Wis. 216. 

« 

Glicksnian, Gold £ Corrigarij attorneys, and George B. Luhr 
man, of counsel, and oral argument by Nathan Glicksman. 

Lawrence- A. 01 well, for the respondent Julius J. Ooetz. 

The following opinion was filed December 7, 1915 : 

Babnes, J. The appellants insist that the court erred in 
holding that the commissioner of banking or the trust com- 
pany was liable for rent to Goetz or Rogers or the Markwells, 
and, as subsidiary to this, in deciding (1) that the leasehold 
estate of the trust company became the property of the bank 
commissioner; (2) that the commissioner occupied the prem- 
ises under the lease; (3) that Goetz had authority to deliver 
the possession of the leased premises to Rogers; (4) that 
Rogers succeeded to the rights of the trustee in bankruptcy; 

(5) that Rogers ever had been in possession of the premises; 

(6) that the right to offset indebtedness due from the Clark 
Realty Company to the trust company against the rent 
claimed did not exist; and (7) that $2,500 per year was a 
reasonable and fair rental for the premises occupied by the 
commissioner. 

The commissioner of banking took possession of the prop- 
erty and assets of the Citizens Savings tC* TniM Company 
pursuant to the provisions of sec. 2022, Stats. Among other 
things, sub. 1 of that section authorizes the commissioner, 
whenever it shall appear that any bank is conducting its busi- 
ness in aji unsafe or unauthorized manner or that its capital 
is impaired or that it is unsafe or inexpedient for it to con- 
tinue business, to forthwith take possession of the property 
and business of such l)ank and retain such possession until the 
corporation shall resume business or its affairs be finally 
liquidated. Sub. 2 requires the commissioner to give notice 
of the fact that he has taken possession of the assets of the 
bank. Sul). 3 provides that, upon taking possession of the as- 
sets and l)usiness of the bank, the commissioner is authorized 
to collect moneys due to such bank and to do such other things 



1] JANUAEY TERM, 1916. 221 



Citizens Savings & T. Co. v. Rogers, 162 Wis. 216. 

as are necessary to conserve its assets and business, and that 
he shall proceed to liquidate the affairs thereof in the manner 
provided. It is made the duty of the commissioner to collect 
debts due and claims belonging to the bank, and upon the 
order of the circuit court to sell or compound all bad or doubt- 
ful debts, and on like order to sell all real estate and personal 
property of such bank on such terms as the court shall direct 
The commissioner is also authorized, when it is necessary to 
pay the debts of the corporation, to enforce the individual lia- 
bility of stockholders. Sub. 4 provides that the commis' 
sioner may appoint one or more special deputy commission- 
ers as agents to assist him in the duties of liquidation and 
distribution. And a special deputy so appointed is author- 
ized to perform such duties connected with the liquidation 
and distribution as the commissioner may deem proper. The 
commissioner is also authorized to employ such counsel and 
procure such expert assistants as may be necessary in the 
liquidation and distribution of the assets of the bank, and 
may retain such of the officers or employees of the l)ank as he 
may deem necessary. Sub. 5 provides for a notice to credit- 
ors, and makes it the duty of the commissioner to object to 
the allowance of any claim which he deems to be unjust 
Sub. 6 requires the commissioner to take an inventory of the 
assets of the bank and to file the same as therein directed, to- 
gether with a list of all claims presented against the bank. 
Sub. 7 provides that compensation of the special deputy com- 
missioners, counsel, and other employees and assistants, and 
all eicpenses of supervision and liquidation, shall be fixed by 
the commissioner, subject to the approval of the circuit court 
for the county in which the l)aiik is located, on a notice to the 
bank, and shall, upon the certificate of the commissioner, be 
paid out of the funds of such bank in the hands of the com- 
missioner. Sub. 8 deals with the payment of dividends. 
The other subdivisions of this section are not material to a 
consideration of the questions raised on this appeal. 



222 SUPEEME COURT OE WISCONSIN. [Feb. 

Citizend Savings & T. Co. v. Rogers, 162 Wis. 216. 

It appears pretty clearly to be the intent and purpose of 
the statutory provisions referred to, to vest the title and right 
of possession to the assets and property of an insolvent bank 
in the banking conunissioner for the benefit, primarily at 
least, of creditors when a situation arises which warrants the 
commissioner in taking action under the law and he does act 
under it. The commissioner is authorized to take possession 
of the bank assets and to collect all indebtedness due it. If 
recourse to a suit became necessary it would be his duty to 
bring it, and, we think, to bring it in his representative ca- 
pacity. The statute (sub. 7) recognizes the fact that ex- 
penses must be incurred in connection with the winding up 
of the affairs of an insolvent bank, and so provides that the 
commissioner shall fix the wages of employees and all "ex- 
penses of supervision and liquidation," subject to the ap- 
proval of the circuit court on notice to the insolvent bank, 
which expenses must be paid out of the funds of the bank in 
the hands of the commissioner. 

The abstract question of the liability of the commissioner 
for rent of the premises held by him, or for use and occu- 
pancy thereof, is not involved in much doubt. The lease may 
have been either an asset or a liability of the trust company. 
It was its property in any event and nominally an asset which 
the commissioner took with the other property. He might 
repudiate it or treat it as an asset. There was no repudia- 
tion. He was obliged to have some place in which to transact 
the large volume of business necessarily incident to the liqui- 
dation of the affairs of the insolvent. It was just as neces- 
sary that he should have space in which to transact that busi- 
ness as it was that he should have employees to assist him in 
transacting it. He could not do the work on the street cor- 
ners nor on the housetops. For reasons satisfactory to him- 
self he elected to occupy the former quarters of the trust com- 
pany, and just why he should not be compelled to pay for the 
use of the premises as part of the expense of administration 



1] JANUARY TERM, 1916. 223 

Citizens Savings & T. Co. v. Rogers, 1G2 Wis. 216. 

is not apparent to us. Rent 9f premises necessarily occupied 
is an administration expense. 3-i Cyc. 352. We are speak- 
ing now of the broad proposition made by appellants' counsel 
that the commissioner is not liable for rent in anv case where 
he simply makes use of the property which the insolvent bank 
holds imder a lease. In the case of a solvent landlord this 
would mean that, while the commissioner could take all of 
the property and assets of the insolvent and use it to pay 
dabts and expenses aside from rent, the landlord would have 
to look to the insolvent for his rent while the commissioner 
was carrying on the liquidation proceedings, or at least until 
he could be evicted for nonpayment. This would be an easy 
method of relief against the payment of rent where the com- 
missioner was permitted to hold possession, but it is not one 
that would appeal to the conscience of a court of equity or 
find favor in a court of law unless it was found that the law 
as it existed was pretty clearly in harmony with the claim 
made. On the point under discufsion the great weight of 
authority is to the effect that there is liability. Nelson v. 
Kalkhoff, 60 Minn. 305, 02 K W. 335; Loveland, Bank- 
ruptcy (4th ed.) § 313, p. 647; Woodruff v. Erie R. Co. 93 
N. Y. 609 ; Cameron v. NasK 41 App. Div. 532, 58 K Y. 
Supp. 643; Smith v. ^Yagner, 9 Misc. 122, 29 N. Y. Supp. 
284; Smith v. Ingram, 90 Ala. 529, 8 South. 144; Farmers' 
L. & T. Co. V. N. P. B. Co. 58 Fed. 257 ; Bray v. Cohb, 100 
Fed. 270 ; In re Frazin, 174 Fed. 713 ; Dayton H. Co. v. Fel- 
senthal, 116 Fed. 961, 965, 968; Ltnfc Belt M. Co. v. Hughes, 
174 111. 155, 51 N. E. 179; Atchison, T. & S. F. R. Co. v. 
Hurley, 153 Fed. 503; U. S. T. Co. v. ^Yahash R. Co. 150 U. 
S. 287, 14 Sup. Ct. 86; De^yolf v. Royal T. Co. 173 111. 
435, 50 K E. 549 ; Spencer v. IForW's C. Expo. 163 111. 117, 
45 K E. 250. 

There are cases which hold that the officer in charge is 
liable for the reasonable value of the use of the property, and 
not the sum stipulated in the lease. Stoepel v. Union T. Co. 



224 SUPREME COUET OF WISCONSIN. [Feb. 

Citizens Savings & T. Co. v. Rogers, 162 Wis. 216. 

121 Mich. 281, 80 N. W. 13; Bell v. American P. League, 
163 Mass. 558, 40 N. E. 857; In re Grignard L. Co. 155 
Fed 699; In re SherwoodSj 210 Fed. 754; In re J. Frank 
Stanton Co. 162 Fed. 169; In re Adams C, S. & F. House, 
199 Fed. 387; Carswell v. Farmers' L. & T. Co. 74 Fed. 88, 

The decided weight of authority, however, is to the effect 
that the rent stipulated in the lease fixes the measure of lia- 
bility, and we deem this to bo the correct rule. 

The cases cited did not involve bank commissioners acting 
under statutes like ours, but dealt with the liability of receiv- 
ers of insolvent corporations, trustees in bankruptcy, and the 
like. Appellants argue that the obligations of such are dif- 
ferent from those of the bank commissi6ner, who is a state of- 
ficer performing statutory duties and subject to statutory lia- 
bilities only. We neither accept nor reject this somewhat 
narrow view of the duties and functions of the commissioner. 
Conceding them to be correct, he has under the statute the 
power, and it is, we think, his duty, to provide a place in 
which to transact his business where the insolvent does not 
own one, and it necessarily follows that the expense thereof 
is one of administration for which the commissioner is just 
as much liable as would be a receiver or trustee in bank- 
ruptcy. Whether the cases be strictly on all-fours with the 
one before us or not, they deal with analogous situations. 
The law implies a promise to pay for the use of room which 
was necessary for the transaction of the business which the 
commissioner was called upon to transact 

Taking up the other contentions of the appellants, the time 
for which rent w'as allowed should be divided into three 
periods: first, from October 2, 1913, w^hen the commissioner 
took over the property of the trust company, to February 2, 
1914, when the landlord, the Clark Realty Company, was ad- 
judged a bankrupt; second, the period from February 2, 
1914, to June 30, 1914, at which latter date the trustee in 
bankruptcy of the lessor elected to surrender possession of the 



1] JANUARY TERM, 1916. 226 



I 



Citizens Savings & T. Co. y. Rogers, 162 Wis. 216. i 



Pereles Block to the trustee of the bondholders; and third, 
the period of nine months from and after June SOth, for 
which the trustee of the bondholders was permitted to recover 
rent 

When the banking commissioner took charge of the insolv- 
ent trust company there was due the latter on open account 
from its landlord $2,186.14. There was also a mortgage in- 
debtedness amounting to $73,500, falling due in 1915, on 
which interest had been paid to May 1, 1913. Thereafter 
the semi-annual instalments of interest were not paid. 
There became due on account of interest the sum of $1,837.50 
on November 1, 1913, and a like sum every six months there- 
after, as we understand the testimony. 

The appellants insist that they had a right to offset these 
sums against any rent that might be due the lessor or its suo- 
cessors in interest, and that this right of setoff is superior to 
the right of all of the parties who are seeking to compel the 
payment of rents. The commissioner and the insolvent trust 
company filed their claim on open account against the Clark 
Realty Company in the bankruptcy proceedings involving 
that company. The proof of claim which was verified by the 
joint claimants stated that the amount claimed was due over 
and above all setoffs. The trial court was of the opinion 
that the claimants elected to claim the entire indebtedness in 
the bankruptcy court and had therefore waived their right to 
make the offset now claimed. Conceding this to be true as 
to the claim on open account, we do not see how it can affect 
the right of offset against the sums due for interest The 
Clark Realty Company was entitled to the rent which accrued 
up to February 2, 1914, when it went into bankruptcy. At 
this time it was owing the trust company over $1,800 interest 
money. If the trust company was solvent there would be no 
doubt about the right to make the offset. Jones v. Piening, 
85 Wis. 264, 55 N. W. 413 ; Pendleton v. Beyer, 94 Wis. 31, 
68 N. W. 415; Merchants Exch. Bank v. Fuldner, 92 Wis. 
Vol. 162 — 15 



226 SUPREME COURT OF WISCONSIN. [Feb. 

Citizens Savings & T. Co. v. Rogers, 162 Wis. 216. 

415, 66 N. W. 691. We do not see how this right has been 
lost because of the insolvency of the trust company, and we 
hold that the appellants had the right to offset amounts due. 
for interest against rentals up to the time the Clark Realty 
Company became a bankrupt. 

As to rents accruing after the Clark Realty Company went 
into bankruptcy, it would seem clear that the right of offset 
did not exist. The rights of its creditors then became fixed, 
and they were entitled to have the rents accruing thereafter 
impounded by the trustee in bankruptcy so that the same 
might be applied in settlement of their claims. Johnston v. 
Humphrey, 91 Wis. 76, 80, 64 N. W. 317; Oaiman v. Bator 
vian Bank, 77 Wis. 501, 503, 46 K W. 881 ; Jones v. Piening, 
mpra; McLaughlin v. Winner, 63 Wis. 120, 23 K W. 402 ; 
1 Loveland, Bankruptcy (4th ed.) § 320. The trustee of the 
bankrupt became vested with its title and right of possession in 
the Pereles Block. Sub. 6, sec. 70, Bankruptcy Act ; Collier, 
Bankruptcy (10th ed.) pp. 1004, 1005. The trustee had a 
reasonable time in which to decide whether this block was an 
asset or a liability. It was his duty to take it over with the 
other assets of the bankrupt If satisfied, after a full inves- 
tigation, that the interests of the creditors whom he repre- 
sented would best be subserved by abandoning the property, 
he might, with the consent and approval of the court, do so. 
In the meantime he was obliged to supply fuel, provide jani- 
tor service, make necessary repairs, and to assume a part of 
the obligations incidental to ownership, and it is pretty clear 
that he was entitled to the rents so long as he elected to take 
and retain possession of the property in the interest of the 
creditors whom he represented. To hold that his surrender 
of possession related back to the time he took it would cast 
upon the bankrupt estate the burdens of maintenance while 
possession was held without participation in the benefits, 
which would be manifestly unfair to the creditors of the 
Realty Company. Equitable L. & S. Co, v. R. L. Moss & 
Co, 125 Fed. 609 ; In re Frazin, 183 Fed. 28. 



1] JANUARY TERM, 1916. 227 



Citizens Savings & T. Co. v. Rogers, 162 Wis. 216. 



The sum of $1,875 was allowed on the petition of Rogers, 
trustee for the bondholders. He predi3ate8 his claim on the 
fact that he was a mortgagee in possession of the premises. 
When Ooetz abandoned the premises with the consent of the 
bankruptcy court, that court made an order directing that the 
possession of the premises be surrendered to Rogers as 
trustee. Thereafter Rogers exercised the dominion and con- 
trol over the property that is usually and ordinarily exercised 
by a landlord. He employed janitors, provided fuel and 
elevator service, and performed the duties of landlord toward 
the various lessees who occupied the building. He collected 
rents from the tenants of the building, excepting the com- 
missioner of banking and the Citizens Savings & Trust Cowr 
pany, and all this was done without any protest on the part 
of the Clark Realty Company or any of its creditors. 
Neither the Clark Realty Company nor its representatives 
made any claim to the rents after possession was surrendered 
by their trustee, and they are not now making any claim to 
the rents involved in this proceeding. We cannot agree with 
counsel for the appellants in the contention that Rogers 
was not in possession of the premises after July 1, 1914. It 
is also claimed that the bankruptcy court had no power to 
order the trustee, Ooetz, to deliver possession of the premises 
to Rogers. The important fact perhaps is that Rogers got 
peaceable possession, if not with the express consent of the 
mortgagor, at least without the slightest protest on its part 
Neither do we see how this order can be treated as a mere 
nullity and subject to a collateral attack. Counsel further 
argue quite strenuously that a mortgagee in possession is not 
entitled to the rents of a property which he has possession of, 
and that such rents belong to the mortgagor and that he can 
be deprived of them through foreclosure proceedings only and 
by the appointment of a receiver in such proceedings who is 
directed by the court to collect the rents and apply them in 
payment of the mortgage indebtedness. It might be here re- 
marked that it is not the mortgagor who is making this claim, 



228 SUPREME COURT OF WISCONSIN. [Feb. 
Citizens Savings & T. Co. r. Rogers, 162 WU. 216. 

but a third party whose duty it is to pay rent, and it might 
well be said, under (he circumstances here existing, there 
having been assent and acquiescence on the part of the mort- 
gagor and its representatives in the action taken by the trustee 
named in the mortgage, that a tenant could not successfully 
contest the payment of rent to the trustee in possession* 
However this may be, we think that the mortgagee in posses- 
sion is entitled to collect the rents accruing on the mortgaged 
property and to apply them in settlement and satisfaction of 
the mortgage debt. This was the conclusion reached by the 
trial court, and it was because of this conclusion the appoint- 
ment of a receiver was refused. Some authorities hold that 
a receiver will not be appointed where a mortgagee is in pos- 
session of mortgaged property and caring for it and receiv- 
ing rents. 27 Cyc. 1G26 ; Sleeper v, Iselin <& Co. 59 Iowa, 
379, 13 N". W. 341; Cummings v. GummingSj 75 Cal. 434, 
17 Pac. 442. The facts in the case show that the mortgage 
security is worth very much less than the amount due on the 
outstanding bonds secured by the mortgage. 

This court has frequently held that when a mortgagee ob- 
tains peaceable possession of mortgaged property he may re- 
tain such possession until his mortgage debt is paid. Hen- 
nesy v. Farrell, 20 Wis. 42 ; Stark v. Brown, 12 Wis. 572 ; 
Gillett V. Eaton, 6 Wis. 30; Tallman v. Ely, 6 Wis. 244; 
Brivkman v. Jones, 44 Wis. 498, 512. If this right of pea- 
session does not carry with it the beneficial use of the mort- 
gaged property it is a barren right indeed, and we hold that 
peaceable possession carries with it the right to collect rentals 
although the rentals themselves are not specifically mort- 
gaged. 

It was said in Schreiber v. Carey, 48 Wis. 208, 214, 215, 
4 N. W. 124, although not essential to a decision in the case, 
that a mortgagee in possession was entitled to apply the rents 
and profits which can be derived from such possession to the 
discharge of his debt. The cases are generally to the effect 



1] JANUARY TERM, 1916. 229 

Citizens Savings & T. Co. v. Rogers, 162 Wis. 216. 

that where a mortgagee in possession does collect rent he is 
entitled to apply it on the mortgage debt. 27 Cyc. 1250. 
The fact that a tenant may refuse to pay cannot change this 
rule, and it has been held that under the general doctrine of 
equity the right to rents is vested in the mortgagee in posses- 
sion. Huguley Mfg. Co. v. Oaleton C. MUls, 94 Fed. 269, 
36 C. C. A. 236. 

As to the Markwells the situation is this : The Pereles Com- 
pany had a ninety-nine-year lease of this interest, which 
passed to the Clark Realty Company by a warranty deed cov- 
ering the leased premises. The Clark Realty Company be- 
coming insolvent, its interest in the leased premises became 
vested in its trustee in bankruptcy. Such trustee, not con- 
sidering the interest of the insolvent in this property to be an 
asset, abandoned it and turned the possession of it over to the 
trustee of the mortgage. The trustee in the mortgage, act- 
ing in behalf of the bondholders whom he represents, has 
elected to claim no interest in that part of the mortgaged 
premises covered by the ninety-nine-year lease, and in turn 
surrendered the possession of the property covered by this 
lease to the owners on August 1, 1914. So there is no one in 
existence from whom the Markwells can collect anything for 
the use and occupancy of their premises except those who are 
actually occupying them, unless it be the Citizens Savings & 
Trust Company, now bankrupt, who is the assignee of their 
lessee, the Pereles Company. If this latter is their only 
remedy, then they may have no remedy at all except foreclo- 
sure and eviction. The Markwells, however, are the owners 
of the premises and have all the possession and right of pos- 
session which inheres in a landlord, and we think they are 
entitled to either the rent stipulated in the existing lease to 
the trust company or to the reasonable value of the use and 
occupancy of the premises, which in this case, under the find- 
ings of the court, amounts to the same thing. The finding 
that the premises occupied by the commissioner were worth 



230 SUPREME COURT OF WISCONSIN. [Feb.- 

Citizens Sayings A T. Co. v. Rogers, 162 Wis. 216. 

the rent stipulated in the lease under which the trust com- 
pany held is sustained by the evidence. 

A question of jurisdiction is also raised. It is said that 
the liquidation of the business of an insolvent bank under 
sec. 2022 is not a proceeding in or under the direction of a 
court, but an administrative proceeding carried on by a state 
officer who is empowered and directed to refer certain legal 
questions arising in the course of administration to the courts. 
This contention, if correct, does not prevent the courts from 
entertaining jurisdiction of an action against the commis- 
sioner to recover a debt for which he is l^ally liable and 
which he refused to pay. No action was brought in the pres- 
ent instance, the respondents having proceeded by petitions 
in the liquidation proceedings in the circuit court. The ap- 
pellants answered such petitions, and the issues raised were 
without objection tried on the merits. The court certainly 
had jurisdiction of the subject matter of this controversy 
over rent, and the parties by their voluntary appearance con- 
ferred jurisdiction over their persons. However broad the 
powers of the banking commissioner may be, his decision 
that he does not owe a just claim made against him is not 
final. 

As to the respondents Rogers and the Markwells the order 
appealed from is affirmed. As to the respondent Goetz the 
order appealed from is modified by reducing the recovery 
from $1,868.13 to $1,027.77, and as so modified the order is 
affirmed. Costs are allowed to the respondents Rogers and 
the Markwells. Costs are allowed in favor of the appellants 
and against the respondent Goetz for one half of the taxable 
disbursements on the appeals and $25 attorneys' fees. 

By the Court. — It is so ordered. 

A motion for a rehearing was denied, with $25 costs, on 
February 1, 1916. 



1] JANUARY TERM, 1916. 231 

Zaremba v. International Harvester Corp. 162 Wis. 231. 



Zaremba, Respondent, vs. International Harvester Cor- 
poration, Appellant. 

November 17, 1915— February 1, 1916. 

Life insurance: Employees* benefit association: Contract barring rem- 
edy in courts: Validity: Public policy. 

1. Provisions in an insurance contract made with an employees' bene- 

fit association whereby the beneficiary is debarred from any 
remedy in the courts and must accept as final the settlement or 
decision made by the superintendent of the association, or by the 
board of trustees upon appeal, are void as against public policy. 

2. A controversy as to contract rights between the association and a 

beneficiary under a benefit certificate cannot be considered as 
one of the Internal affairs of the association as to which the de- 
cision of the tribunals of the association may be made conclusive 
upon the members. 

3. A beneficiary who, upon the death of a member, made claim to the 

superintendent in order to prevent the benefit from lapsing, 
might decline to appeal from his adverse declsldn to the board of 
trustees and might lawfully resort to the courts, disregarding 
the provisions of the contract which attempted to take away that 
remedy. 

Appeal from a judgment of the circuit court for Milwau- 
kee county : Oscar M. Fritz, Circuit Judge. Affirmed. 

The action is to recover death benefits upon a certificate of 
membership in an unincorporated employees' benefit associa- 
tion composed of employees of the defendant corporation. 
The plaintiff is the beneficiary named in the certificate and is 
the widow of Frank Zaremba, a member of the association in 
good standing, who died July 16, 1912. The defendant, for 
the purposes of the action, admits that it has assumed lia- 
bility to pay any sum which may be legally due on the certifi- 
cate. The action was brought and tried in the civil court of 
Milwaukee county. Two defenses were relied on, viz. : 
(1) that the death of the insured resulted from the immod- 
erate use of intoxicating liquors, and (2) that by the terms of 



232 SUPKEME COUET OF WISCONSIN. [Feb. 



Zaremba v. International Harrester Corp. 162 Wis. 231. 



the contract the plaintiff should have exhausted her remedy 
before the tribunals of the association. The jury found 
against the defendant on the first issue and the court held 
against it on the second issue, and judgment was rendered 
by the civil court for the plaintiff for the amount of the death 
benefits, viz. $939.81 and costs, which judgment was affirmed 
upon appeal to the circuit court, and the defendant appeals. 
For the appellant there was a brief by Flanders, Bottum, 
Fawsett & Bottum and David A, Orebaugh, attorneys, and 
Edgar A. Bancroft and Philip 8. Post, of counsel, and oral 
argument by 0. F. Fawsett. 

Charles E. Hammersley, for the respondent 

The following opinion was filed December 7, 1916: 

WiNSLow, C. J. The judgment must be affirmed under 
the principles laid down by this court in Fox v. Masons' jP. 
A. Asso. 96 Wis. 390, 71 N. W. 363. 

In the present case the application for insurance provided 
that if proper claim were not made to the superintendent of 
the association within one year after the death of the insured 
the death benefit should lapse, and, further, that both the in- 
sured and the beneficiaries should be governed by the rules of 
the association providing for a final and conclusive settlement 
of all claims for benefits by reference to the superintendent 
of the association and an appeal from his decision to the 
board of trustees of the association. The rules referred to 
provided that all controversies as to any claim for benefits 
should be submitted to the said superintendent, whose de- 
cision should be final and conclusive unless a written appeal 
be taken therefrom to the board of trustees, whose decision 
should be final and conclusive. 

It is very plain that the result of the foregoing provisions 
taken together is to oust the courts of jurisdiction over the 
whole subject matter of disputed claims for death benefits. 
If no claim is presented to the superintendent the benefit 



1] JAiTUAKY TERM, 1916. 233 

Zaremba y. International Harvester Corp. 162 Wis. 231. 

lapses; if the claim be presented to the superintendent the 
claimant must accept the decision of the superintendent (or 
of the board of trustees upon appeal) as final and conclusive. 
In either event the beneficiary is, by the terms of his contract, 
debarred from any remedy in the courts. This court had 
held that such a contract is void as against public policy. 
Fox V. Masons' F. A. Asso.j supra. 

This principle is not in the least affected or shaken by the 
companion principle that in the administration of the inter- 
nal affairs of a corporation the decisions of the tribunals of 
the association within their own proper sphere, if not viola- 
tive of law, may be made conclusive as to the members of the 
corporation. Loeffler v. Modem Woodmen, 100 Wis. 79, 75 
N. W. 1012; Bartleit v. L. Bartlett & Son Co. 116 Wis. 450, 
93 N. W. 473. A controversy as to contract rights between 
the association and a beneficiary under a benefit certificate 
cannot be considered as one of the internal affairs of the cor- 
poration. 

Nor does it matter that the beneficiary made application 
for payment of the claim to the superintendent and, upon his 
adverse decision, declined to go further. She was obliged to 
make the claim to the superintendent or the death benefit 
would lapse. Having done this, she might lawfully resort to 
the courts and disregard the provisions which attempt to take 
away that remedy. 

By the Court, — Judgment affirmed. 

A motion for a rehearing was denied, with $25 costs, on 
February 1, 1916. 



234 SUPKEME COUKT OF WISCONSIN. [Feb. 

state ex rel. Wisconsin T., L., H. & P. Co. v. Circuit Court, 162 Wis. 234. 



State ex kel. Wisconsin Traction, Light, Heat & Power 
Company, Plaintiff in error, vs. Circuit Court for 
Winnebago County, Defendant in error. 

November 18, 1915— February i, 1916, 

Certiorari: Jurisdiction: Public utilitieB: Indeterminate permits: 
Condemnation of ^'existing plant" operated in conjunction uHth 
utilities in other cities, 

1. Absence of legal right on the part of a city to condemn the plant 

of a public utility therein goes to the jurisdiction of the circuit 
court to entertain an action brought by the city for that purpose 
under sec 1797m — 80, Stats. 1913, and certiorari will lie to re- 
view the court's proceeding. 

2. Under sec. 1797m — 77, Stats, (by which licenses, permits, and 

franchises granted to public utilities before the Public Utility 
Law took effect were converted into indeterminate permits), 
and sec. 1797m — 80 (prescribing the method to be pursued by a 
municipality in acquiring by condemnation an existing plant 
operated under an indeterminate permit provided in sec. 
1797m — 77), municipalities have, by necessary implication, the 
power to condemn such existing plants, although that power is 
not expressly granted. 

3. Where, before the Public Utility Law took effect, a city had 

granted to a corporation a franchise to furnish light and power 
to its residents, such grant constituted the corporation a public 
utility and a separate entity in that city, even though the oper- 
ating power was procured from a source outside of the city 
which also furnished power to other utilities owned by the same 
corporation in other cities. 

4. The franchise in such case having become an indeterminate per- 

mit under sec. 1797m — 77, Stats., the city might, under sec. 
1797m — 80, condemn the existing plant therein, irrespective of 
the fact that it was owned or operated in conjunction with other 
utilities. 

Certiorari to review a judgment of the circuit court for 
Winnebago county : Byron B. Park, Judge. Writ quashed. 

Pursuant to sec. 1797m — 80, Stats. 1913, the city of Me- 
nasha brought an action in the circuit court to determine the 
necessity of taking the public utility plant of the Wisconsi7i 



1] JANUARY TERM, 1916. 236 

state ex rel. Wisconsin T., L., H. ft P. Co. v. Circuit Court, 162 Wis. 234. 



Traction, Light, Heat & Power Company located in said 
city. The jury found that public necessity required the tak- 
ing and a judgment in accordance with the verdict was en- 
tered. To review such judgment the defendant obtained a 
writ of certiorari. 

For the plaintiff in error there were briefs by Van Dyke, 
Shaw, Muskat £ Van Dyke, and oral argument by James D. 
Shaw. 

For the defendant in error there was a brief by D. K. 
Allen, attorney, and Siias Bullard and John C. Thompson, 
of counsel, and oral argument by Mr, Allen and Mr, Thomp- 
son. 

The following opinion was filed December 7, 1915 : 

ViNJE, J. The defendant owns an electric power plant at 
Appleton which furnishes that city with street lighting and 
the residents thereof with light and power. It provides the 
same service for Neenah. In Menasha it furnishes the resi- 
dents with light and power. Its franchise for so doing was 
granted it by the city in 1904. In 1911 by force of sec. 
1797m — 77, Stats., such franchise became an indeterminate 
permit. The power plant at Appleton is ample to furnish 
all the electric power needed for the purposes above specified. 
The city of Menasha is seeking to condemn the property of 
the defendant located within its corporate limits actually 
used and useful for the convenience of the public. It does 
not contemplate taking power from the Appleton plant as it has 
a power plant of its own. The defendant claims that the city 
cannot dismember its plant and take only a portion thereof; 
that under the Public Utility Law, and especially by force of 
sees. 1797m — 76 and 1797m — 78, only the municipality in 
which the major part of the property of the utility lies can 
purchase or condemn, and since the major portion of defend- 
ant's property lies in Appleton, only about one fifth of it being 
in Menasha, Appleton is the only city that can condemn. If 



236 SUPREME COURT OF WISCONSIN. [Feb. 

state ex rel. WiscoDsin T., L., H. 6 P. Co. v. Circuit Court, 162 Wis. 234. 

this be true the contentions go to the right of the city to con- 
demn and to the jurisdiction of the court to entertain the ac- 
tion, and certiorari will lie to review the court's proceeding. 

Sec. 1797m — 76 provides that every license, permit, or 
franchise thereafter granted shall have the effect of an inde- 
terminate permit and shall be "subject to the provision that 
the municipality in which the major part of its property is 
situate may purchase the property of such public utility." 

Sec. 1797w? — 78 provides that every public utility accept- 
ing an indeterminate permit thereafter granted shall "be 
deemed to have consented to a future purchase of its property 
actually used and useful for the convenience of the public by 
the municipality in which the major part of it is situate." 

Sub. 4, sec. 17977n — 79, gives any municipality the power 
to acquire by purchase the property of any public utility op- 
erating under any voluntary indeterminate permit It does 
not cover the case of a utility operating under an indetermi- 
nate permit created by sec. 1797m — 77. This subdivision 
and the two previouB sections mentioned relate to what may 
be termed sales of the properties of public utilities to which 
they consented upon accepting an indeterminate permit and 
which they are compelled to make. 

Sub. 2, sec. 1797m — 79, gives any municipality the power 
to purchase, by agreement with any public utility, any part 
of any plant. This refers to a voluntary sale which the 
utility is not required by law to maka The subsection 
merely empowers a municipality to make such a purchase if 
the utility is willing to sell. These statutes were all a part 
of the original Public Utility Law, ch. 499, Laws of 1907, 
and they are the only ones that confer upon municipalities 
the power to purchase. 

Under the original law owners of franchises were not com- 
pelled to surrender them for an indeterminate permit The 
legislature, therefore, contemplating that municipalities 
might desire to acquire the property of a utility operating 



1] JANUAKY TERM, 1916. 237 



Bute ex rel. Wisconsin T., L., H. & P. Co. v. Circuit Court, 162 Wis. 234. 

under an original franchise, or without permit, granted to 
them, by sub. 3 of sec 1797m — 79, the power of condemning 
such utilities. And in sees. 1797m — 80 et seq, they pre- 
Bcribed the method of so doing. 

Sub. 1, sec 1797m — 79, gave municipalities the power to 
construct and operate a plant or any part thereof. 

These provisions of the original Public Utility Law em- 
powered municipalities (1) to construct and operate a plant 
or any part thereof, (2) to purchase by agreement with a 
public utility any part of its property, (3) to purchase the 
plant of any public utility operating under an indeterminate 
permit, and (4) to condemn the property of a public utility 
not operating under an indeterminate permit, or operating 
without a permit The scheme of acquisition as the law then 
stood was apparently complete. But in 1911 the legislature 
by ch. 596, now sec. 1797m- — 77, in invUum, converted every 
license, permit, or franchise granted prior to July 11, 1907, 
into an indeterminate permit with all its powers and limita- 
tions except as provided by sec. 1797m — 80. The first sen- 
tence of this section was amended by striking out the words 
''a license, permit or franchise existing at the time this act 
took effect" and substituting in their place the words "an in- 
determinate permit provided in section 1797m — 77," making 
the section read, "If the municipality shall have determined 
to acquire an existing plant then operated under an indeter- 
minate permit provided in section 1797771 — 77, . . . such 
municipality shall bring an action," etc. It is evident that 
upon all franchises becoming indeterminate permits by force 
of sec. I797m^ — 77 there remained nothing upon which sub. 
3, sec. I797m — 79, could act except public utilities operating 
without a permit or franchise. That the legislature so un- 
derstood is evidenced by the fact that they struck out of sec 
1797m — 80 the words above referred to, which obviously re- 
lated to sub. 8, sec 1797m- — 79, and substituted in their place 
apt words referring to sec 1797m- — 77. The latter section 



238 SUPREME COURT OF WISCONSIN. [Feb. 

state ex rel. Wisconsin T., L., H. 6 P. Co. v. Circuit Court, 162 Wis. 234. 

as it appears in the Statutes of 1913 was first enacted in 
1911. But in amending see. 1797m — 80 to correspond with 
the provisions of sec. 1797m — 77 they apparently overlooked 
the fact that the express power of condemnation granted to 
municipalities by sub. 3, sec. 1797m — 79, no longer had any- 
thing to act upon except public utilities without any permit 
or franchise whatsoever. But that the l^slature consid- 
ered that municipalities had the power to condemn the prop- 
erty of public utilities having indeterminate permits forced 
upon them by sec. 1797m — 77 is evident from the language 
of that section taken in connection with sec. 1797m — 80. 
The latter section specifically provides the method to be pur- 
sued in condemning the property of a utility acquiring an in- 
determinate permit by force of sec. 1797m — 77. To say 
that they provided the procedure to be followed and with- 
held the power would be absurd. The two sections by neces- 
sary implication grant the power. Singularly enough sec. 
1797m — 80 as it stood originally and as now amended does 
not in terms provide the procedure for condemning a utility 
operating without any permit or franchise. 

Since this proceeding does not come under sub. 4 of sec. 
1797m — 79 or imder any part of the statute dealing with a 
purchase by consent under a voluntary indeterminate permit, 
sees. 17977^1 — 76 and 1797m — 78, so much relied upon by 
defendant, do not appear to throw much light upon the ques- 
tion to be determined, namely, Can the plaintiff condemn the 
property of the Menasha public utility located within the cor- 
porate limits of that city? Sec. 1797m — 80 provides for the 
condemnation of an existing plant then operated under an in- 
determinate permit provided in sec. 1797m — 77. The ex- 
isting plant here spoken of is the existing plant of a public 
utility operating under a compulsory indeterminate permit. 
Sec. 1797m — 1 defines a public utility as used in the statute 
to "mean and embrace every corporation, company, individ- 
ual, association of individuals, their lessees, trustees, or re- 



1] JANUARY TERM, 1916. 239 

state ex rel. WlBconsln T., L., H. ft P. Co. v. Circuit Court, 162 Wis. 234. 

ceivers appointed by any court whatsoever, and every town, 
village, or city that now or hereafter may own, operate, man- 
age, or control any plant or equipment or any part of a plant 
or equipment within the state, for the conveyance of telephone 
messages or for the production, transmission, delivery, or fur- 
nishing of heat, light, water, or power either directly or in- 
directly to or for the public, or that now or hereafter may 
own, operate, manage, or control any toll bridge wholly with- 
in the state.^' It follows from this definition that the property 
or plant of a public utility may consist of a part of a plant as 
the word "plant" is used when meaning a physical operating 
unit consisting of one or more parts. When in 1904 the city 
of Menasha granted a franchise to defendant to furnish com- 
mercial lighting and power to its residents, such grant consti- 
tuted the defendant a public utility in Menasha. The fact 
that it was already one elsewhere or became one later is im- 
material. The Menasha public utility thus created was an 
entity though owned and operated in connection with other 
public utilities. The change of its franchise to a compulsory 
indeterminate permit did not affect its separate entity. It is 
still a public utility in Menasha, and it is the property of that 
utility the city is seeking to condemn. The fact that the de- 
fendant operated another utility in Appleton and another in 
Neenah does not affect the separate entity of the Menasha 
utility. Nor does the fact that the Menasha utility gets its 
current from the Appleton utility, though the owner of both 
is the same, change the situation. So far as the record dis- 
closes, the plaintiff is seeking to condemn all the property be- 
longing to the Menasha utility, but it does not propose to 
secure its current from the same source. It intends to gener- 
ate its own current instead of buying it from the Appleton 
utility as the Menasha utility has heretofore done. For 
whatever may be the terms and conditions upon which the 
current has heretofore been supplied to the Menasha utility, 
the transaction amounts to a purchase by the latter and must 



240 SUPEEME COURT OF WISCONSm. [Feb. 

state ex rel. Wisconsin T., L., H. & P. Co. v. Circuit Court, 162 Wis. 234. 

be so considered in rate-making for the Menasha utility. De- 
fendant fails to distinguish between the property belonging 
to several utilities and that belonging to one. The distinc- 
tion is as vital when there is one owner of all as it is when 
there are separate ownerships. The statute deals with the 
property of a utility as an entity, and such property is sub- 
ject to condemnation separately though used and owned in 
connection with that of other utilities. The construction 
placed upon the statutes by defendant would render it impos- 
sible for a municipality to condemn a utility serving it if the 
owner thereof owned or operated utilities in other cities in 
the aggregate larger than that sought to be condemned, which 
were connected with such utility by a conmion power plant or 
otherwise. Under such a construction public utilities in a 
dozen or more cities served by a power station located in the 
country could never be condemned by the municipalities which 
they serve because the major portion of their property would 
not be situate therein. At the time the Public Utility Law 
was passed it was common knowledge that a central power 
plant often supplied two or more utilities in different munici- 
palities. The law did not intend to and did not put such utili- 
ties upon a different basis as to condemnation than those hav- 
ing their own power plants, and hence it provided that the 
existing plant of any utility may be separately condemned 
irrespective of its physical connection with other utilities. 
Under the old law utilities were granted franchises by mu- 
nicipalities; under the present law they are granted certifi- 
cates of convenience and necessity by the railroad conmiission. 
Each when operating under its grant or the substituted inde- 
terminate permit constitutes a complete separate public util- 
ity subject to condemnation by the municipality originally 
granting the franchise or for which the certificate of conven- 
ience and necessity was granted, irrespective of the fact that 
it may be owned or operated in conjunction with other utili- 
ties. Any other construction would nullify the statutory 
definition of a public utility. It follows that the city of 



1] JANUARY TERM, 1916. 241 

state ex rel. Wisconsin T., L., H. & P. Co. v. Circuit Court, 162 Wis. 234. 

Menaaha, herein called the plaintiff, has the power to con- 
demn as proposed and that the writ of certiorari must be 
quashed. Plaintiff is entitled to costs against the relator, 
herein called the defendant. 
By the Court. — Writ quashed. 

A motion by the plaintiff in error for a rehearing was de- 
nied February 1, 1916, and the following opinion was filed 
February 4, 1916: 

Per Cueia^i. Upon the motion for a rehearing our at- 
tention is called to the use of the word "franchise" in the sen- 
tence of the opinion stating that "When in 1904 the city of 
Menasha granted a franchise to defendant to furnish commer- 
cial lighting and power to its residents, such grant constituted 
the defendant a public utility in Menasha," and it is pointed 
out that such use is incorrect because the franchise is granted 
by .the state and not by the city. No question as to the source 
of the franchise was in the case and hence the use of the term 
could not mislead in that respect. Moreover, sub. 7 of sec. 
1778, Stats., says, "No corporation to build and operate elec- 
tric light system or systems for the transmission of steam or 
hot water for heat, shall have any right hereunder in any city 
or village until it has obtained a franchise from such city or 
village, as now provided by law." The word was used to de- 
note this grant from the city called a franchise in the stat- 
ute itself. It was not intended to indicate that the original 
source of defendant's franchise was the grant from the city 
and not that from the state. 

The defendant came under the provisions of the indetermi- 
nate permit by operation of law. A question is suggested as. 
to its right to recover damages due to a severance of its prop- 
erty heretofore operated together. It is claimed that a denial 
of such right deprives defendant of its property without due 
process of law. The opinion was purposely silent upon this 
question because it was not before us for adjudication. 

The motion for a rehearing is denied with $25 costs. 
Vol. 162 — 16 



242 SUPREME COURT OF WISCONSIN. [Feb. 

Rheinschmidt y. Tomah, 162 Wis. 242. 

Rhbinschmidt, Appellant, vs. City of Tomah, Bespondent. 

November 19, i915—Fehruary i, 1916, 

Municipal corporations: Injury from defect in footpath: Duty to keep 
in repair: Questions for jury: Sufficiency of pathtoay: OontriJh 
utory negligence: Momentary forgetfulness of knovm defect. 

1. Although the sidewalk area along a public street has not been 

prepared by the city for public travel, long-continued use of it 
for such travel imposes upon the city a responsibility in respect 
thereto practically the same as if it were a prepared way. 

2. In an action for injuries sustained by falling into a depression la 

what had been a footpath along a public street, the evidence as 
to the siase and shape of the depression and its relation to a new 
pathway which had been made around it is held to make it a 
Jury question whether the traveled way was reasonably suitable 

< 

for public use. 

3. Although plaintiff knew of the depression or hole into which he 

fell, his contributory negligence was also a question for the Jury^ 
it appearing that the accident happened at night when he sud- 
denly met a person coming from the opposite direction, and his 
testimony being that he momentarily took his mind off the sub- 
ject of the defect and stepped to the right to give the oncoming 
person the right of way, and that in doing so he went into the 
hole. 

4. The presumption of contributory negligence arising in case of an 

injury sustained through failure to avoid a known defect in a 
street is rebuttable, and a showing of any reasonable excuse for 
forgetfulness is sufficient to make the question one for the Jury. 

Appeal from a judgment of the circuit court for Monroe 
county : E. C. Higbee, Circuit Judge. Reversed. 

Action to recover compensation for a personal injury. 

The claim of the plaintiff was that in the defendant city a 
public street, known as Williams street, near its intersection 
with Clark street, for more than a year prior to October 20, 
1913, on the south side thereof, used by pedestrians, had been 
unsafe for persons in the exercise of ordinary care by reason 
of there being a depression in the footway from eight to four- 
teen inches deep and twelve to eighteen inches wide; that 



1] JANUARY TERM, 1916. 243 

RheinBChmidt t. Tomah, 162 Wis. 242. 

6uch condition had been known to the defendant's officers for 
JL long time before the occurrence complained of; that on such 
day, plaintiff, while traveling along the footway in the exer- 
<;i8e of due care, stepped into such depression, causing him to 
fall and fracture his right leg. The facts so claimed were 
duly pleaded with all the conditions precedent to the right to 
maintain an action to recover compensation for the injury. 

The claim of the defendant was that there was no depres- 
flion in the footway where plaintiff was injured, rendering it 
unsafe for use by travelers in the exercise of ordinary care; 
that plaintiff did not exercise such care, and that his fault re- 
sulted in the injury. 

The evidence established the claim that plaintiff fell by 
stepping into a depression in the footway at the place alleged 
and was thereby seriously injured in his right leg, and that 
the accident occurred in the nighttime when it was too dark 
to enable one to observe the defect with reasonable distinct- 
ness. He testified that there was a "dug-out" in the footway 
several feet long with a couple of drops in it, making a hole 
at the deepest place eight, nine, or ten inches deep, and that 
people were accustomed to walk around it to the south ; that 
he did so on the occasion in question; that he was familiar 
with the defect and was looking for it, but, upon meeting a 
person coming from the opposite direction, he momentarily 
took his mind off the subject in stepping aside to give way for 
such person to pass, and, in doing so, he went into the hole, 
fell upon his knee and received the injury. The person who 
was present when the accident occurred testified that the de- 
fect had existed for more than a year; that he stepped into 
the depression once himself and received an injury; that he 
measured the depth of the depression on the side plaintiff 
traveled and found it to be six inches at the first step down, 
increasing to nine and then to twelve inches ; that the width 
was twenty inches, and that the "dug-out" was caused by 
travel and washing. There was other evidence to the same 



244 SUPREME COtRT OF WISCONSIN. [Feb. 

Rheinschmidt t. Tomah, 162 Wis. 242. 

effect. There was a photograph of the premises indicating 
that the depression was, as testified to by the witnesses, sev- 
eral feet long with a slope on the south side. There was evi- 
dence by a surveyor that he examined and platted the prem- 
ises some time after the accident. The result of his work 
was allowed in evidence against objection. Whether the con- 
ditions were the same when he did his work as when the ac- 
cident occurred was disputed. He claimed that the bottom 
of the pathway was smooth through the depression; that it 
was well tracked and was used, in the main, for travel ; that 
the south side sloped, and that there was some evidence of 
travel around the depression on such side. The evidence in- 
dicated that the sidewalk area had never been improved ; that 
travelers had made for themselves a pathway, and that when 
it became worn by travel or washing they diverged around the 
place. 

The cause was submitted to the jury with the following re- 
sult : The traveled foot-path was insuflScient for public use by 
persons in the exercise of ordinary care. Such conditions 
had existed for such length of time prior to the accident that 
defendant's officers, in the exercise of reasonable diligence, 
should have discovered and remedied the same. SucJi de- 
fective condition was the proximate cause of the injury. 
Plaintiff "was not wanting in ordinary care which contributed 
to the injury. It will require $1,000 to compensate plaintiff" 
for the injury. 

On motion the answers were changed so as to find the path- 
way free from actionable defect and the plaintiff guilty of 
contributory negligence. The motion was granted and on 
the first point upon this theory : All the evidence, when rightly 
understood, is in substantial harmony as regards the condition 
of the place where the accident occurred. The street was not 
much used. No sidewalks had ever been constructed. The 
pathway along the south side of the street sloped for a dis- 
tance of some eighteen feet to the intersecting street The 



1] JANUARY TERM, 1916. 245 

Rheinschmidt y. Tomah, 162 Wis. 242. 

bottom of the old path was substantially uniform. The width 
of it varied from seventeen inches to two feet. The greatest 
depth of the center of the path below the side on the south 
was 11.64: inches and the drop at that part was on a slope of 
one foot and a half. If the plaintiff stepped off into the de- 
pression where it was the deepest, he must have taken a long 
side-step. If it occurred within four feet of the intersection 
of the pathway with the cross street, tlie drop was less than 
two inches. Such condition under such circumstances, the 
court thought, does not warrant a finding that the street waa 
actionably defective. 

Judgment was rendered, dismissing the action with costs. 

For the appellant there was a brief by Donovan & Oleiss, 
attorneys, and Grady, Famsworth & Kenney, of counsel, and 
oral argument by W. H. Famsworth and Timothy J. Dono- 
van. 

For the respondent there was a brief by Naylor & Mc- 
Caul, and oral argument by W. B, Naylor. 

The following opinion was filed December 7, 1915 : 

Mabshall, J. Was the trial court clearly wrong in hold- 
ing that a jury could not justly find that the traveled way in 
question was not reasonably suitable for public use ? 

It is not often that a decision by the trial court that the 
evidence does not present a jury question is disturbed on ap- 
peal, and that is so, in the main, because of the superior 
facilities possessed by such judge for understanding the exact 
situation required to be dealt with. That advantage is more 
or less helpful according to circumstances. In this case it is 
not particularly significant since there is no considerable 
conflict in the evidence, as the trial court held, and the pic- 
torial representation of the place of the accident, affords us 
about as good an opportunity as such judge had for under- 
standing the evidence. 

It must be conceded that there was ample evidence tend- 



I 

246 SUPREME COURT OF WISCONSIN. [Feb. 



Rheinschmidt y. Tomah, 162 Wis. 242. 



ing to prove that the sidewalk area which had been used for 
years was defective, in that the old pathway had been exca- 
vated by wear and washing so that, at one point, the track was 
eleven inches or more below the surface of the ground on the 
south side, and the depth varied each way from the deepest 
place until at a few feet therefrom it coincided with the gen- 
eral level. Whether the bottom of the depression was smooth 
or there were steps in it caused by washing, was disputed, 
though there was evidence tending to prove the latter and it 
was corroborated by evidence that the conditions was such that 
a new pathway had been made around the depression which 
had been used for a long time and was so close thereto that a 
side-step by one traveling thereon was liable to cause him to 
stumble or step into it. Let it be conceded that the side of 
the depression sloped from the brink to the bottom, as the 
trial court suggested, and the photographs introduced in evi- 
dence support, yet, it is not at all unlikely that, in case of a 
person using the diverging pathway in the nighttime and be- 
ing required to step aside to allow another coming from the 
opposite direction to pass him, he would naturally reach so 
far down the side of the slope as to momentarily lose control 
of his movements and fall. The plaintiff did so, and received 
the injury complained of. Other persons had previously 
met with somewhat similar difficulties and the condition 
which caused the same had existed for a long time. 

The trial judge appears to have given rather too much sig- 
nificance to evidence that the bottom of the old pathway was 
smooth and some eighteen inches aside from the traveled way 
around it, so that one walking on the latter, would have to 
take quite a wide side-step to reach the former. A moder- 
ate side-step, seemingly, would be sufficient, in the nighttime, 
as before suggested, to start one, uncontrollably, into the de- 
pression, as there is evidence to indicate, was what happened 
in the particular case. 

Now, in view of the fact that it was the duty of the re- 



1] JANUARY TERM, 1916. 247 

Rheinschmidt v. Tomah, 162 Wis. 242. 

spondent to keep the traveled way reasonably safe for use by 
night as well as by day, and the peculiar situation rendering 
it probable that, in the nighttime, a person might fall into the 
depression in the old pathway, as appellant did, it seems 
quite clear that the trial court was wrong in holding that 
there was no foundation in the evidence for the jury finding 
that the way was not reasonably safe for public use. The 
judge seems to have given too much significance to the cir- 
cumstance that the sidewalk area had not been prepared by 
the municipality for public travel, and was not used to any 
great extent. It was a proper place for such travel and had 
been used therefor a long time. Therefore the responsibility 
in respect thereto was practically the same as if it had been a 
prepared way. James v. Portage, 48 Wis. 677, 5 N. W. 31. 
It was there held that customarv use of one side of a street as 
a footway imposes on the municipality in which it is situ- 
ated the duty to keep it in a proper state of repair and that, 
if the same becomes "so defective as to render travel over the 
same unsafe, and the city takes no measures to warn the pub- 
lic against using the footway, the city becomes liable to any 
traveler who may suffer an injury from such defective foot- 
way without his fault.'' In view of that well settled prin- 
ciple, we are inclined to the view that the trial court may 
have applied a wrong rule of law to the evidence. In any 
event, we are constrained to hold that there was a jury ques- 
tion in respect to whether the traveled way was suitable for 
use or not, and that the finding made by the jury should not 
have been disturbed. 

The next and only other question is: Did the trial court 
err in holding that appellant, as a matter of law, was guilty of 
contributory negligence from the fact that he was familiar 
with the defect ? 

In respect to the last question, it seems a wrong rule was 
applied to the evidence. It has often been held that a person 
in using a public traveled way is not bound, at his peril, to 



248 SUPKEME COURT OF WISCONSIN. [Feb. 



Rheinschmidt r. Tomah, 162 Wis. 242. 



remember and avoid danger from a defect in such way with 
which he is familiar. In the absence of any reasonable ex- 
<;use for not avoiding the danger, and a personal injury re- 
sulting, there is a presumption of negligence, but, in case of 
^uch excuse, a jury question is presented as to whether ordi- 
nary care was exercised or not Wheeler v. Westport, 30 
Wis. 392; Crites v. New Bichmond, 98 Wis. 55, 73 N. W. 
522; Collins v. Janesville, 111 Wis. 348, 356, 87 N. W. 241, 
1087. In the last case cited it was said : "The presumption 
[of negligence from knowledge of the defect] is rebuttable 
And gives way so readily to explanatory circumstances that 
any reasonable excuse for the forgetfulness is sufficient to 
carry the case to the jury on the question of the plaintiff's 
contributory negligence." Here there was an excuse which 
s, jury might reasonably say was reasonable. The accident 
happened in the nighttime. The appellant, probably, did 
not see the exact location of the dangerous part of the depres- 
sion. He suddenly met a person coming from the opposite 
di'rection, and his mind was immediately occupied with the . 
idea of giving way so such person could pass. He testified 
that he, momentarily, took his mind off the subject of the de- 
fect and stepped to the right to give the oncoming person the 
right of way, and that, in doing so, he went into the hole. In 
view of that evidence, whether his conduct was consistent 
with ordinary care was a fair jury question. 

It follows that the judgment appealed from must be re- 
versed, and the cause be remanded with directions to rein- 
state the answers which were set aside and to render judg- 
ment on the verdict in plaintiff's favor. 

By the Court. — So ordered. 

A motion for a rehearing was denied, with $25 costs, on 
Fel)ruary 1, 1916. 



IJ JANUARY TERM, 1916. 249 



Elliott V. Flsk, 162 Wis. 249. 



Elliott, Administratrix, Respondent, vs. Fisk, Appellant. 

November 20, 1915^February i, 1916. 
Wills: "Validity: Undue influence: Evidence: BujBflciencif. 

1. To justify the setting aside of a will on the ground of undue in- 

fluence there must be clear and satisfactory evidence establish- 
ing the susceptibility of the testator to such influence, an oppor- 
tunity for the exercise thereof, a disposition to exercise it, and a 
result Indicating its exercise; but the clear establishment of 
three of these essential elements may with slight additional evi- 
dence as to the fourth compel the inference of its existence, es- 
pecially where the will is not a natural one such as relationship 
usually dictates. 

2. Thus, in this case, the finding of the trial court that a will executed 

four hours before the testator's death, when he was in an ex- 
tremely feeble condition, was the result of undue influence ex- 
erted by the beneficiaries, who were not related to him and to 
whom he gave all his property to the exclusion of an aged father 
and other near relatives with whom he was on good terms, is 
held not clearly erroneous, three of the elements above men- 
tioned being pretty clearly established, although as to the dis- 
position of the beneficiaries to exercise undue influence the proof 
is meager. 

Appeal from a judgment of the circuit court for Monroe 
county : E. C. Hiqbeb, Circuit Judge. Affirmed. 

Action to probate a will. July 25, 1913, John H. Elliott 
died. Four hours previous to his death he executed a will 
leaving $500 to C. W. Fish, the proponent, and the remain- 
der of his property, of the value of about $1,500, to one Jess 
McCuUough. Phillip Elliott, the father of the deceased, 
contested the probate of the will on the ground of lack of 
testamentary capacity on the part of the testator and undue 
influence on the part of the legatees. The contestant has 
died since this appeal was taken and the administratrix of 
his estate has been substituted in his place. The county 
court refused to probate the will because of lack of testa- 
mentary capacity and the proponent appealed to the circuit 



250 SUPKEME COURT OF WISCONSIN". [Feb. 

Elliott V. Fisk, 1C2 Wis. 249. 

court. The latter found testamentary capacity, but refused 
probate on the ground of the exercise of undue influence on 
the part of the legatees. From a judgment entered accord- 
ingly the proponent appealed. 

For the appellant there was a brief by Naylor & McCaul, 
attorneys, and Graham & Graham, of counsel, and oral ar- 
gument by TF. B. Naylor. 

John F, Doherty, for the respondent 

The following opinion was filed December 7, 1915 : 

ViNJE, J. The testator was a bachelor sixty-four years 
of age at the time of his death. His mother died in 1868 
leaving a farm of the present value of about $15,000. His 
father married again and was living on the farm as tenant 
by the curtesy. He has died since this action began and an 
administratrix of his estate has been duly appointed and sub- 
stituted in his place as contestant. The testator had a one- 
seventh interest in his mother's farm subject to his father's 
estate by the curtesy, and it appears that at various times he 
expressed dissatisfaction with his father and brothers because 
he could not obtain his share of his mother's estate. Other- 
wise he seems to have been on good terms with his relatives. 
Though of fair health up to within a few years of his death 
he never acquired any property of his own. His life was 
spent in various kinds of common work at different places. 
Part of the time he would work for his board only and part 
of the time visit with his relatives, including his father, his 
brother in Montana, and his sister in Nebraska. But he 
never stayed long \vith his father and had expressed dissatis- 
faction with his ^'hanging onto life" so long. He spent two 
winters doing chores for his board with a friend by the name 
of Hackett in Valley Junction, and he also stayed there five 
weeks in the spring of 1913. Some six or seven years before 
he died he made his home for a time with Jess McCuUough, 



1] JANUAEY TERM, 1916. 251 

Elliott V. FlBk. 162 Wis. 249. 

the residuary legatee. For six months at least he paid him 
board. After that he came and went as he pleased. Fish, 
the other legatee, was an old friend of his, but there is no evi- 
dence that he felt any more friendship for him or for McCul- 
lough than he felt for a number of other friends. For some 
time before his death he lived alone in a house near Valley 
Junction. A farmer by the name of Christenson was his 
nearest neighbor, and towards the end he and his family took 
care of him night and day. The Tuesday previous to his 
death, which occurred on Friday, he was taken from his house 
by McCuUough on a cot and brought to the boarding house of 
Fish at Tomah. He died from tuberculosis of the lungs, and 
for a week before he was removed to Tomah he was so weak 
and sick that he had been unable to take any nourishment ex- 
cept lemonade. His hands and feet were cold and showed 
discoloration, and he had to be turned in bed. 

In May, 1913, he borrowed from a crippled brother $500, 
giving a mortgage on his share of his mother's estate as se- 
curity. Of this money he had $325 left. The Saturday be- 
fore he died he asked Christenson to take care of this money 
for him, but he refused. The next day he sent for Christen- 
son, and when he came he asked him to make out a check for 
the money to McCuUough, who was there. This Christenson 
did, dating the check as of Saturday, and the testator signed 
it The next day McCuUough drew the money from the 
bank and had Fish draw an agreement to the effect that Mc- 
CuUough should make such arrangements and take such care 
of testator as he saw fit. McCuUough took him to Fish's 
house as stated and agreed to pay $20 per week for his board 
and nursing — Mrs. Fisk. being a nurse. 

From Tuesday until Friday at the time the will was ex- 
ecuted the evidence is silent as to what took place. The tes- 
tator, however, was continually growing weaker. When the 
will was being drawn his legs were rubbed to assist circula- 



252 SUPREME COURT OF WISCONSIN". [Fbb. 

Elliott V. Fisk, 162 Wis. 249. 

tion and to keep them warm. The beneficiaries were present 
when the lawyer, called by Fisk, inquired of him how he 
wished to dispose of his property and they were present at all 
times thereafter till the will was executed. He was then so 
weak that his hand had to be assisted in holding the pen and 
guided in making his mark, though he had been a fair pen- 
man during his life and had written a very friendly letter to 
his brother in May preceding when he obtained the $500. 
The will was read to him by the lawyer who drew it clause 
by clause and he assented to each. Mrs. Fisk, the witnesses 
to the will, and the beneficiaries were then present. 

Such, in brief, are the main facts touching the testator's 
life and condition inunediately preceding the execution of 
the will as disclosed by the record. The trial court found 
that the beneficiaries exerted undue influence upon him. 
Can we say that such a finding is clearly contrary to the Inti- 
mate inferences that may be drawn from the evidence ? 

It is quite clear that the testator was a man susceptible to 
undue influence, especially at the time the will was made, 
owing to his then extremely enfeebled condition. There was 
what may be termed only a spark of life left in him- He 
no longer had much vitality to assert a will of his own. 
Even in his usual health he must have been a man of rather 
feeble will power — lacking in initiative and push, for he 
never acquired any property of his own. His motto seems 
to have been, Sufficient unto the day is enough. In all these 
respects he differs from the testator in Ball v, Boston, 153 
Wis. 27, 141 N. W. 8, who had been an active business man 
and had evidently possessed a strong mind. Neither was his 
will made in such an enfeebled condition, for he lived a month 
after it was executed. So it must be deemed that the evi- 
dence establishes quite clearly and satisfactorily that the tes- 
tator was susceptible to undue influence. There is like proof 
that an opportunity to exercise undue influence existed, for 



1] JANUARY TERM, 1916. 253 



Elliott V. Fisk, 162 Wis. 249. 



he was in the house of the proponent, Fish, three days before 
he died, when both Fish and McCullough had access to and 
visited with him. On the question of their disposition to ex- 
ercise undue influence, however, the proof is quite meager. 
There is no direct evidence of it farther than that one of 
them had received from him for safe-keeping and disburse- 
ment all the cash that he had and the other was to receive $20 
per week for caring for him. Neither fact is very persuasive^ 
and both are consonant with disinterestedness and friendship 
or legitimate business only. Perhaps the strongest inference 
that such disposition existed may be drawn from the fact that 
they now seek to retain what was gratuitously given as against 
an aged father who would otherwise have been entitled there- 
to, and from the fact that the result appears to have been the 
-effect of such influence. The deceased had never expressed 
any intention of making a will, a fact of no great value be- 
cause he considered he had little if anything to leave. The 
trial court was satisfied from the evidence that testator was 
on good terms with his nearest relatives and that he enter- 
tained no greater friendship for the legatees than he did for 
his relatives and for a number of other friends, or felt him- 
self under any greater obligations to them. And such con- 
clusion finds support in the evidence. Hence the result in- 
dicated pretty clearly the existence of undue influence. 
While it is true that a testator susceptible to undue influence ; 
an opportunity for the exercise thereof ; a disposition to exer- 
<2ise it; and a result indicating its exercise must be established 
by clear and satisfactory evidence before a court is justified 
in setting aside a will, yet the clear establishment of three 
of these essential elements may with slight additional evidence 
as to the fourth compel the inference of its existence. This 
is especially true where the will is not what may be termed a 
natural one, such as relationship usually dictates. In Oun- 
deraon v. Rogers, 160 Wis. 4:%S, 152 N. W. 157, it was said 



254 SUPREME COUET OF WISCONSIN. [Feb. 

Elliott Y. FiBk, 162 Wis. 249. 

that strong evidence of lack of testamentary capacity or of 
undue influence was required to nullify a will jukde accord- 
ing to the dictates of natural justice. Where it is not sa 
made less proof may suffice, for legitimate inferences of in- 
firmity may be drawn from its departure from natural jus- 
tice. Here at least some such departure occurs. In this re- 
spect also the case differs from the Ball Case. Here the prop- 
erty is left to entire strangers by blood or marriage; there it 
was left to the testator's second wife — ^his adult children by 
his former marriage having been to some extent previously 
assisted by him and having shared a $1,000 insurance pol- 
icy, while the property left by the will to the wife did not ex- 
ceed $3,000 in value. 

The result reached is that, while the case is a close one, the 
judgment of the trial court must be affirmed because we can- 
not say it is clearly erroneous. As bearing upon the ques- 
tions discussed recourse may be had to the following late 
cases in this court : Ball v. Boston, 153 Wis. 27, 141 N. W. 
8; Duncan v. Metcalf, 154 Wis. 39, 141 N. W. 1002; Shrins- 
rud V. Schwenn, 158 Wis. 142, 147 N. W. 370; and Ounder- 
son V. Rogers, 160 Wis. 468, 152 N. W. 157. 

By the Court. — Judgment affirmed. 

A motion for a rehearing was denied, with $25 costs, on 
February 1, 1916. 



1] JANUARY TERM, 1916. 255 

Ocean A. ft G. Corp. t. Combined Locks P. Co. 162 Wis. 255. 



Ocean Accident & Guarantee Corporation, Limited, of 
London, England, Appellant, vs. Combined Locks 
Paper Company and another. Respondents. 

December 10, 1915— February 1, 1916, 

Employer^ 9 liability insurance: Increase in rate: New contract: Policy 
issued by nonresident agent in violation of law: Validating stat- 
ute: Construction: Obligation to pay premiums: Cancellation 
when assured retires from business: What^ premiums to be re- 
tained, 

1. Where an employer's liability insurance policy running for three 

years was modified, with the consent of the assured, by a written 
stipulation annexed increasing the rate, the transaction was 
equivalent to making, at the date of such modification, a new 
contract of insurance for a new premium but otherwise on the 
terms of the original policy. 

2. A policy of indemnity insurance issued in violation of sub. 1, sec. 

1919a, Stats, (providing that no policy of insurance shall be is- 
sued or delivered in this state except through a resident agent 
holding a certificate of authority under sec. 1976), by unlicensed 
nonresident agents of a company licensed to do business in this 
state, was validated by sub. 4, sec. 1919a (which provides "This 
section shall not prevent any insurance placed in violation there- 
of from taking effect"), and such validation included the obliga- 
tion of the assured to pay the premium. 
Z, The retirement from business of one only of two corporations 
Jointly insured by an Indemnity policy was not within the mean- 
ing of a stipulation therein that if the policy should be canceled 
by the insured when retiring from business the earned premium 
only should be retained by the insurer. 

Appeal from a judgment of the municipal court of Outa- 
gamie county: Thomas H. Ryan, Judge. Reversed, 

For the appellant there was a brief by C. Q. Cannon, at- 
torney, and B. F. Potter, of counsel, and a separate reply 
brief and oral argument by ifr. Cannon. 

For the respondents the cause was submitted on the brief 
of Francis S. Bradford. 



256 SUPREME COURT OF WISCONSIN. [Fidb. 

Ocean A. & G. Corp. v. Combined Locks P. Co. 162 Wis. 255. 

Timlin, J. The action is to recover the unpaid remain- 
der of premium alleged to be due upon an employer's liability 
policy running for three years and executed December 16, 

1910, modified by a written stipulation annexed increasing 
the rate August 31, 1911, and canceled at request of insured 
to take effect December 16, 1912. The trial court found that 
the policy was issued by Illinois representatives of the plaint- 
iff not licensed to do insurance business in Wisconsin, who 
then sent the policy to the plaintiff's resident agent at Mil- 
waukee to be countersigned, with the intent of evading the 
insurance laws of this state. That the premiums were col- 
lected by the Illinois representatives and the plaintiff's resi- 
dent agent at Milwaukee was sent a commission to satisfy 
him for the loss of the business, and that no report or account- 
ing was ever made to the officers of Wisconsin of this insur- 
ance. On August 31, 1911, the plaintiff raised the rates of 
insurance on the policy from seventy-two cents per $100 to 
$2 per $100, and issued a writing from its Chicago office by 
officers not authorized to do such business in Wisconsin and 
without countersign or sanction of any officer or agent of the 
plaintiff in Wisconsin. These unlicensed persons thereby 
added a certain stipulation to the policy, with the coneent oi 
the assured, making such change of rate, and this was also 
done with design to evade the laws of Wisconsin. The pol- 
icy was issued with the intent to evade an accounting to the 
state for the percentage due to the state upon insurance writ- 
ten within this state. Upon these findings the trial court de- 
clined to pass on the validity of the policy as first issued, it 
appearing that the whole balance of premium unpaid, com- 
puted either according to plaintiff's theory or defendants^ 
theory, rested upon the validity of the transaction of August, 

1911, increasing the rate. He held this transaction void and 
gave judgment for defendants. 

It is contended that those findings which say there was at 
any stage of the transaction an intent to evade the laws of 



1] JANUAKY TERM, 1916. • 257 



Ocean A. ft G. Corp. v. Combined Locks P. Co. 162 Wis. 255. 

Wisconsin are not supported by evidence. We do not find it 
necessary to pass upon this point, because, even assuming 
that such intention was shown to exist when the policy first 
issued, there is no evidence of such intention with reference 
to the transaction of August 31, 1911. This transaction was 
equivalent to making a new contract of insurance at that date 
for a new premium, but otherwise on the former terms. 
Sees. 1976, 1978, and 1919a, Stats. 1911, form a system of 
insurance regulation for this state intended to require insur- 
ance policies to be issued from the oflSces of and by licensed 
agents residents of this state. Sec. 1955o — 5 imposes a pen- 
alty on any person or corporation violating any law of this 
state relating to insurance. By an amendment to sec. 1919a 
which went into effect after the policy was issued but before 
the transaction of August 31, 1911, sub. 4 of sec. 1919a was 
added to this statutory system of regulation. That subdi- 
vision reads as follows: '^This section shall not prevent any 
insurance placed in violation thereof taking effect." Aside 
from this sub. 4, sec. 1919a provides that no policy of insur- 
ance shall be issued or delivered in this state except through 
an agent resident of this state holding a certificate of au- 
thority under sec 1976. 

This case turns on the effect of the enactment of sub. 4, 
supra. Such effect must be deduced from a consideration of 
this and other statutes on the same subject Laun v. Pacific 
Mut. L. Ins. Co. 131 Wis. 655, 111 N. W. 660. There can 
be no doubt that sub. 4 validates the policy of insurance is- 
sued in violation of that section. Does it also, by so doing, 
validate the promise to pay the premium for that policy? 
This very point Was passed upon in Union Ins. Co. v. Smart, 
60 N. H. 458, from which we quote: 

"To give the policy-holder the protection intended by stat- 
ute, it is necessary to hold the premium note given for a pol- 
icy declared by the statute valid against the company also 
valid ; otherwise there would be no consideration for the pol- 
icy. 

Vol. 162 — 17 



258 • SUPREME COURT OF WISCONSIN. [Feb. 

Ocean A. & G. Corp. t. Combined Locks P. Co. 162 Wis. 255. 

This case was followed in Conn, River Mut. F, Ins. Co. v. 
Whipple, 61 N. H. 61. See, also, Provincial Ins. Co. v. 
Lapsley, 81 Mass. (15 Gray) 262, where the language of the 
statute is somewhat different ; also Hartford L. 8, Ins. Co. v. 
Matthews, 102 Mass. 221 ; Reliance Mut. Ins. Co. v. Sawyer, 
160 Mass. 413, 36 K E. 59. 

We do not go to the extent of holding that the l^islature 
could not validate the policy without validating the obliga- 
tion to pay the premium agreed upon. See cases in Wis. 
Annotations to sub. 10, sec. mOb, Stats. We do, however, 
think that the cases first above quoted and cited go to show 
that a provision making the "insurance effective" notwith- 
standing the policy was issued contrary to statute is sufficient 
to indicate legislative intent that the insurance would be ef- 
fective in every detail ; as an obligation to pay loss in case of 
loss and also as an obligation to pay premium; leaving the 
violator of the statute subject solely to the penalties by way of 
fine or imprisonment or forfeiture of license found in other 
statutes on this subject. Union Ins. Co. v. Smart, supra, 
seems to go further than this and to hold that a necessary 
effect of validating the policy is to validate the promise to pay 
premium. Be that as it may, within the rule of this court 
set forth in Laun v. Pacific Mut. L. Ins. Co., supra, the pro- 
visions of sub. 4 must be taken as a controlling indication of 
the intention of the legislature to enforce compliance with 
the statutes forbidding insurance by nonresident agents, by 
other penalties than that of holding either the insurance pol- 
icy or the obligation to pay a premium therefor invalid. It 
can be fairly said that this leaves the system of statutory 
regulation unenforceable, wherever the offender is beyond the 
jurisdiction of the courts to fine or imprison, except by a revo- 
cation of its license to do business in this state. This conse- 
quence is not sufficient to overcome the deductions to be made 
from the express language of the statute. Laun v. Pacific 
Mut. L. Ins. Co., supra. 



1] JANUARY TERM, 1916. 259 

Page V. Modem Woodmen of America, 162 Wis. 259. 

It must be remembered that in the instant case the plaint- 
iff was licensed to do business in Wisconsin and that this de- 
cision in no way asserts the right of an unlicensed company 
to do insurance business in this state. 

Having arrived at the conclusion that the obligation to pay 
premium is enforceable, it seems to us quite apparent from 
the words of the policy that the rate of premiimi is not that 
provided in the policy where the insured intends to discon- 
tinue business, but that provided for cases where the policy 
is canceled at the request of the insured. The fact that one 
of the insured intended to go out of business would not, we 
thin]:, bring both, jointly insured, within the stipulation for a 
lower rate in case the insured intended to go out of business. 

It follows that the judgment of the municipal court must 
be reversed, and the cause remanded for judgment for the 
plaintiff in accordance with this opinion. 

By the Court, — It is so ordered. 



Page, Appellant, vs. Modern Woodmen of America, Re- 
spondent. 

January 11 — February i, 1916. 

Death: Presumption from absence: Life insurance: Benefit societies: 

Waiver of proofs of death, 

1. 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. 

2. In an action upon a benefit certificate, proof that the insured 

(plaintiff's husband) left his home in March, 1905, that neither 
the plaintiff nor any other person had had any tidings or infor- 
mation concerning him since the summer of 1905, that he had 
not been heard from for eight years prior to the trial, and that 
his whereabouts were wholly unknown, established the legal 
presumption that he was dead. 



260 SUPKEME COUKT OF WISCOJ^SIN. [Fbb. 

Page v. Modem Woodmen of America, 162 Wis. 259. 

• 
3. The refusal of a benefit society, after being notified of the pre- 
sumed death of a member by reason of his not haying been heard 
from for more than seven years, to furnish to the beneficiary 
blanks for proof of death, constituted a waiver of its require- 
ment that proof of death should be made on blanks to be fur- 
nished by it before an action could be maintained on the benefit 
certificate. 

Appeal from a judgment of the circuit court for Polk 
county: Oeben T. Williams, Judge. Reversed. 

This is an action by the plaintiff to recover on a benefit cer- 
tificate for $2,000 issued by the defendant upon the life of 
Arthur E. Page, the husband of the plaintiff, and payable 
upon his death. 

The defendant is a corporation organized and doing busi- 
ness under the laws of the state of Illinois. The plaintiff's 
husband, Arthur E. Page, became a member and was insured 
in the defendant order in the state of Iowa on the 5th day of 
January, 1901. Sometime after the month of June, 1903, 
the membership was transferred to the local camp at Freder- 
ick, Wisconsin. 

The evidence discloses that the plaintiff and Arthur E. 
Page were married in the year 1880. They lived at Morse, 
Iowa, for about three years after their marriage, during 
which time they resided on a rented farm. In the fall of the 
third year Mr. Page went to Stratton, Nebraska, to take up 
a homestead and the plaintiff joined him the following ApriL 
Mr. Page remained there eight years, six of which the plaint- 
iff was with him. During the time they resided upon the 
homestead Mr. Page spent six weeks in Colorado with a sur- 
veying outfit, two months in the eastern part of Nebraska, 
and then went to the state of Washington. On this Western 
trip he was away a little less than a year, going to Tacoma 
and San Francisco. During all of this time he had worked 
his timber claim and homestead enough to comply with the 
law. After his return from the West the family lived in 
Stratton for about three Lionths and then returned to Morse, 



IJ JANUAKY TERM, 1916. 261 

Page y. Modem Woodmen of America, 162 Wis. 259. 

Iowa, where Mr. Page rented different farms for a period of 
eight or nine years. At the expiration of this period Mr. 
Page went to southern California, but failing to find any 
suitable occupation he returned home and he and his family 
moved to Frederick, Wisconsin. This was in the year 1903. 
Mr. Page purchased eighty acres of land at Frederick, and 
while living there was engaged in cutting timber from this 
land and making cord-wood. About January 12, 1905, he 
had 200 cords of wood for sale. He went to St. Paul, Min- 
nesota, to sell the same, and arranged with one Coburn of 
Frederick to load and ship the wood to him as he sold it 
After selling the greater part of this wood in St. Paul Mr. 
Page left there, and early in March ceased to write to his 
wife or to any one else at FredericL He never returned to 
Frederick. The evidence tends to show thiat he was friendly 
with the plaintiff, that he was attached to his children, and 
that he manifested respect and esteem toward them. The 
plaintiff has not heard from him directly since the 2d day 
of March, 1905. Mr. Page had some financial obligations 
and some payments were due about the time of his disappear- 
ance. Plaintiff made inquiries of relatives and friends as to 
his whereabouts when the time came to pay dues and assess- 
ments on the benefit certificate, but they were fruitless. She 
also advertised in the Woodman paper asking for informa- 
tion concerning him and received no reply. Plaintiff paid 
his dues and assessments as a member of the defendant com- 
pany up to November, 1912. About eighteen months after 
Mr. Page's disappearance plaintiff received a letter from a 
brother of Mr. Page residing at St. Louis, Missouri, stating 
that Arthur E. Page had been at his house in St. Louis in 
the spring or summer of 1905, that he left again, and that he 
stated at the time that he was going to Galveston, Texas. 
"No further inquiries were made. His son Arthur left home 
in the latter part of the year that the father disappeared and 
has not been heard from since. 



2C2 SUPKEME COUET OF WISCONSIN. [Feb. 



Page v. Modem Woodmen of America, 162 Wis. 269. 



The court submitted the case to a jury, who returned a 
general verdict for the defendant. 

The circuit court entered judgment on the verdict dismiss- 
ing plaintiffs complaint with costs. From such judgment 
this appeal is taken. 

For the appellant the cause was submitted on the brief of 
Morris E. Yager , attorney, and Holland & Lovett, of counsel. 

For the respondent there was a brief by Truman Plants 
and Wolfe, Wolfe & Beidj and oral argument by W. F. Wolfe. 

SiEBECKEB, J. The plaintiff contends that the circuit 
court erred in submitting to the jury the inquiry whether or 
not the insured, Arthur E. Page, was dead at the time of the 
trial. In ruling upon plaintiff's motion for a directed verdict 
in her favor the court declared that in his opinion the evidence, 
in the light of the decision in the Miller Case (Miller v. Sover- 
eign Camp W. 0. W. 140 Wis. 505, 122 N. W. 1126), would 
justify a direction of a verdict in her favor, but that he deemed 
it appropriate to take a verdict to lay the foundation for a modi- 
fication by this court of the rule declared in the decisions of 
this court as regards the necessity of making diligent search 
and inquiry to establish the presumptive death of a person who 
has been absent from his home and place of residence for seven 
years without being heard from. The earlier authorities of 
this court on this question and the different rules which obtain 
in other jurisdictions on this subject were re-examined on the 
appeal to this court of the Miller Case, and it was determined 
not to modify the rule on this subject as established by the de- 
cisions of this court No considerations have been suggested 
that have led us to conclude that the rule declared in the Mil- 
ler Case should be modified. 

An examination of the evidence in the instant case satis- 
fies us that it permits only of the inference that plaintiff's 
husband left his home and place of residence in the early 
part of March, 1905, and that neither the plaintiff nor any 



1] JANUARY TERM, 1916. 263 

Page ▼. Modem Woodmen of America, 162 Wis. 259. 

Other person has had any tidings or information concerning 
him or of his whereabouts since the summer of 1905. The 
evidence clearly establishes the fact that Arthur E. Page had 
not been heard from for a period of eight years immediately 
preceding the time of the trial of this case and that his where- 
abouts are wholly unknown. Under this state of the evidence 
the legal presumption that he is dead is established. This 
entitled the plaintiff to a direction of the verdict in her favor 
on this issue, and it was error of the trial court to refuse to 
direct the jury to render a verdict accordingly. Cowan v. 
Lindsay, 30 Wis. 586 ; Whiteley v. Equitable L. Assur. 8oc. 
72 Wis. 170, 39 K W. 369 ; Miller v. Sovereign Camp W. 0. 
W. 140 Wis. 505, 122 K W. 1126. 

. Upon the facts shown the court correctly held that defend- 
ant's refusal, through its officers, to furnish plaintiff blanks 
for proof of death upon her request and notice of Page's pre- 
sumed death by reason of his not having been heard from for 
over seven years, constituted a waiver of the defendant's re- 
quirement that proof of death shall be made on blanks to be 
furnished by defendant before action can be brought to re- 
cover on the benefit certificate. The evidence shows that a 
proper request for such blanks was made and was refused. 
It appears that the company's officers denied liability on the 
certificate under plaintiff's claim that it had matured by 
force of the presumption that Page was dead, in the light of 
all the facts and circumstances showing his disappearance 
and the absence of any intelligence or tidings that he was 
alive. Upon this state of the record the plaintiff is entitled 
to recover the amount due on the certificate. 

By the Court. — The judgment appealed from is reversed, 
and the cause is remanded to the circuit court with direction 
to set aside the verdict and award the plaintiff judgment for 
the recovery of the amount due on the benefit certificate. 

Kerwin, J., took no part 



264 SOPEEME COURT OE WISCONSIN. [Feb. 

Calhoun v. Great Northern R. Co. 162 Wis. 264. 



Calhoun, Administratrix, Respondent, vs. Gbeat Nobth- 

EBN Railway Company, Appellant 

January 11 — February i, 1916. 

Railroads: Negligence: Death o/ iwitchman: Defective running hoard: 
Evidence: Bufjficiency: Proximate cause: Inspection: Federai 
statutes, when applicable: Pleading: Interstate commerce: Bur* 
vival of actions: Separate recovery for suffering: Double recov- 
'ery: Dependents: Appeal: Verdict, when conclusive. 

1. In an action against a railway company for death of a switchman 

who fell from the top of a car, findings by the Jury to the effect 
that defendant negligently permitted the end of one of the boards 
of the running board of the car to project above the adjacent 
board to such an extent as to constitute a defect or insufficiency 
in the car, and that the fall of the deceased from the car was 
caused by his stumbling oyer the projecting board end, are held 
to have such support in the evidence that they should not be dis- 
turbed. 

2. Under the federal Employers' Liability Act (35 U. S. Stats, at 

Large^ 65, ch. 149, sec. 1) giving to a railway employee engaged 
in interstate commerce a right to recover for injury or death 
"resulting in whole or' in part" from negligence of the railway 
company, the common-law rule as to proximate cause has no 
relevancy, it being sufficient that the defect or negligence pleaded 
contributed in any manner to cause the injury. 
8. The Safety Appliance Act (36 U. S. Stats, at Large, 298, ch. 160, 
sec. 2) imposes an absolute duty upon common carriers to equip 
their cars with "secure running boards;" and in an action for 
death caused by a defective running board it is no defense that 
defendant had made proper inspection, if the board was in fact 
defective. 

4. Where, in an action for the death of a railway employee, the an- 

swer alleged that deceased was at the time of the injury engaged 
in interstate commerce and that fact was established upon the 
trial, it was the duty of the court to apply the federal acts. 

5. Under 36 U. S. Stats, at Large, 291, ch. 143, sec. 9, providing for 

the survival of any right of action given by the act to a person 
suffering injury, a cause of action for pain and suffering of a de- 
ceased railway employee survived to his mother, the sole benefl- 
ciary, and a recovery of the amount of her pecuniary loss re- 
sulting from his death and also of damages for his pain and 
suffering between the time of injury and death was not a double 
recovery for the same injury. 



IJ JANUARY TERM, 1916. 266 

Calhoun t. Great Northern R. Co. 162 Wis. 264. 

6. The trial court having in such case sustained the findings of the 
jury on the question of damages, and there being ample evidence 
to support them, they cannot be disturbed on appeal on the 
ground that the mother was not dependent upon the deceased. 
Babnes, J., Win SLOW, C. J., and Marshall, J., dissent. 

Appeal from a judgment of the circuit court for Douglas 
county: Chester A. Fowler, Judge. Affirmed. 

This action was brought by the plaintiff as administratrix 
of the estate of James N. Calhoun, her son, who was killed 
while in the employ of the defendant The defendant was 
engaged in the business of interstate transportation and the 
deceased was in its employ as switchman in its yards at Su- 
perior, Wisconsin. 

The negligence alleged is in substance defective coupling 
appliances, unusual and extraordinary jerking or jarring of 
the car upon which the deceased was riding, and defective 
running board upon the car from which deceased fell. 

Two causes of action are set up in the complaint based 
upon the same grounds of negligence, one being for damages 
which the plaintiff, mother of deceased, sustained by reason 
of the death of her son, and the other for conscious pain and 
suffering between time of injury and death. 

The defendant answered denying negligence and averring 
assumption of risk and concurrent negligence of the deceased. 
Motions for nonsuit and directed verdict by the defendant 
were denied. 

It was conceded on the trial that the case was one under 
the federal Employers' Liability Act of April 22, 1908 (35 
U. S. Stats, at Large, 65, ch. 149, sec. 1), the provisions of 
which material to this case are as follows : 

"That every common carrier by railroad while engaging 
iij commerce between any of the several states or territo- 
ries, . . . shall be liable in damages to any person suffering 
injury while he is employed by such carrier in such com- 
merce, or, in case of the death of such employee, to his or her 
personal representative, for the benefit of the surviving widow 
or husband and children of such employee; and, if none, 



266 SUPKEME COUKT OF WISCONSIN [Feb. 



Calhoiin y. Great Northern R. Co. 162 Wis. 264. 



then of such employee's parents, . . . for such injury or 
death resulting in whole or in part from the negligence of any 
of the oflBcers, agents, or employees of such carrier, or by rea- 
son of any defect or insuflBciency, due to its negligence, in its 
cars, engines, appliances, . . ." 

Also Safety Appliance Act of April 14, 1910 (36 U. S. 
Stats, at Large, 298, ch. 160, sec. 2, 1 Fed. Stats. Ann. (1912 
Supp.) sec 2, p. 336), as follows: 

"That on and after July first, nineteen hundred and eleven, 
it shall be unlawful for any common carrier subject to the 
provisions of this act to haul, or permit to be hauled or used 
on its line any car subject to the provisions of this act not 
equipped with appliances provided for in this act, to wit: 
all cars must be equipped with secure sill steps and eflScient 
hand brakes ; all cars requiring secure ladders and secure run- 
ning boards shall be equipped with such ladders and run- 
ning boards. . . ." 

Also act of April 5, 1910 (36 IT. S. Stats, at Large, 291, 
ch. 143, sec 9), as follows: 

"That any right of action given by this act to a person suf- 
fering injury shall survive to his or her personal representa- 
tive, for the benefit of the surviving widow or husband and 
children of such employee, and, if none, then of such employ- 
ee's parents ; and, if none, then of the next of kin dependent 
upon such employee, but in such cases there shall be only one 
recovery for the same injury." 

Tbe jury returned the following verdict: 

"(1) Did the end of one of the boards of the running 
board project above the adjacent board to such an extent as 
to constitute a defect or insufficiency in the car ? A, Yes. 

"If to question 1 you answer ^ Yes,' answer this : 

"(2) Did the defendant's servants use ordinary care in 
permitting the defect or insufficiency thus found to be in ex- 
istence at the time of the injury ? A. No. 

"(3) Did the deceased stumble over the projecting board 
end, and as a result of such stimibling fall from the car? 
^a JL es* 



1] JAXUARY TERM, 1916. 267 

Calhoun v. Great Northern R. Co. 162 Wis. 264. 

"(4) Was there any want of ordinary care on the part of 
Mr. Calhoun that proximately contributed to produce his 
death? A. No. 

*'(5) What sum will compensate the mother of Mr. Cal- 
houn for the pecuniary loss sustained as a result of his death ? 
A. $2,500. 

"(6) What sum will compensate for the pain and suffer- 
ing by Calhoun from his injury to his death ? A. $500." 

Both parties moved for judgment on the verdict. Counsel 
for defendant also moved for new trial. Judgment was ren- 
dered in favor of the plaintiff upon the verdict, from which 
this appeal was taken. 

J. A. Murphy J for the appellant 

W, P. Crawford, for the respondent. 

Kebwin, J. 1. The serious question in this case is 
whether there is sufficient evidence to support the verdict. 
The jury found that the end of one of the boards of the run- 
ning board projected above the adjacent board to such an ex- 
tent as to constitute a defect or insufficiency in the car ; that 
deceased stumbled over the projecting board end and as a re- 
sult of such stumbling fell from the car ; that defendant w«Cs 
negligent in allowing the defect to be in existence at the time 
of the injury. 

The deceased was in the employ of defendant as a switch- 
man in its yards and at the time of injury was riding on top 
of the car from which he fell while several cars, including 
the one on which deceased was riding, were being pushed by 
an engine northward. There was one car in front or north 
of the one on which deceased was riding and this car was to 
be "kicked" onto a sidetrack. The process of kicking the 
car onto a sidetrack as it was being done at the time of the in- 
jury is accomplished by uncoupling the car to be kicked, in- 
creasing the speed so as to give the car sufficient momentum 
to carry it onto the sidetrack when detached from the train. 



268 SUPEEME COURT OF WISCONSIN. [Fbb. 

Calhoun t. Great Northern R. Co. 162 Wis. 264. 

and then decreasing the speed of the train from which the 
kicked car is detached so as to allow it to pass away from the 
train and onto the sidetrack. The evidence shows that the 
kicking operation was carried on without any sudden jerk of 
the car upon which deceased was riding; that the running 
board was about twenty-three inches wide, constructed of 
three narrow boards placed close together on the top of the 
car; that the alleged defect consisted in the end of one of 
these boards being from one fourth to five eighths of an inch 
higher than the end of the adjacent board where the two 
boards met at about the middle of the car, the car being about 
thirty-three feet long. The string of cars was being pushed 
northward by an engine on a slight down grada The de- 
ceased fell from the north end of the car upon which he was 
riding while the kicking operation was going on, or about the 
time the car immediately in front of the one upon which he 
was riding was kicked onto the side or repair track. The ac- 
cident occurred on a cold December night, and there was frost 
on the running board which showed a track going north about 
two feet south of the defect or projecting end of the board and 
another some two or three feet north of the defect. The 
theory of respondent's counsel is that deceased was moving 
northward on the car during the kicking operation and 
stubbed his toe, throwing him forward, and before he could 
recover himself was thrown off the car, and that the decrease 
of speed, sudden or otherwise, accelerated his motion for- 
ward. The xisual practice in kicking off a car is to puU the 
pin between the two cars, and when the uncoupling is made 
to give the signal to the engineer, who increases his speed and 
then makes a stop, and thereby kicks off the car to be spotted. 
There was evidence that there were no footprints at the point 
where the end of the board projected and that north of the 
projection there were footprints, indicating that the deceased 
proceeded north after passing over the defect. 

There is no direct evidence that the deceased stubbed his 



1] JANUARY TERM, 1916. 269 



Calhoim v. Great Northern R. Co. 162 Wis. 264. 

toe on the end of the projecting board and was thereby caused 
to stumble forward and off the car, but it is argued by re- 
spondents counsel that in view of the tracks in the frost and 
the operation of kicking at or about the time deceased fell, 
the jury was entitled to find that the defect caused the fall, 
consequent injury, and death, while on the part of appellant 
it is insisted that there is not sufficient evidence to support 
the verdict on the point independent of the evidence of the 
fireman, who testified that deceased admitted shortly after he 
fell that he slipped and fell ; that he went to get the brake and 
slipped and fell off. It is argued by appellant that the un- 
disputed admission of the fireman, together with all the other 
evidence in the case, shows conclusively that the deceased did 
not stub his toe and fall on account of the projecting board 
and that there is no evidence to support the verdict 
, The court below held in a written opinion in the record 
that the credibility of the evidence of the fireman as to the 
declarations of deceased was for the jury; that the evidence 
was not free from suspicion and the appearance of the wit- 
ness not the best. The trial court also held that the jury had 
a right to infer, from the footprints upon either side of the 
projecting board end being so far apart, that deceased did not 
step over the board end in an ordinary or natural maimer, 
and that it is hard to account for this long space between the 
footprints except upon the theory that the air brakes suddenly 
stopped the car just as deceased had his foot where it last 
rested before the projection, with the result that he was at 
this point thrown violently forward and took the long stride 
in an attempt to recover himself, or hit his toe on the board 
end as he was traveling north on the car and this caused him 
to lurch forward and take a long step to recover himself. 

The evidence is discussed by counsel on both sides at con- 
siderable length, and we must say it is a rather close question 
whether it is sufficient to support the verdict, but the court 
below upheld the jury in finding the evidence sufficient, and 



270 SUPREME COURT OF WISCONSIN. [Feb. 

Calhoun v. Great Northern R. Co. 162 Wis. 264. 

we cannot say that it was clearly wrong, therefore under re- 
peated decisions of this court the findings must be upheld. 

2. It is further insisted by counsel for appellant that it is 
established in the case without dispute that the day before 
the accident the car was inspected, repaired, and put in good 
condition. The evidence, however, is not without dispute as 
to whether there was a defect in the running board at the time 
of the accident. 

There is also much argument by counsel on both sides upon 
the common-law rule of proximate cause, which has no rele- 
vancy to the case. It is conceded that the case is governed 
by the federal act, which fixes right of recovery for injury 
"resulting in whole or in part" from negligence. 

It is sufficient that the defect contributed in any manner 
to cause the injury. Alexander v. M,, St P. £ S, 8. M. B. 
Co. 156 Wis. 477, 146 N. W. 510. 

The Safety Appliance Act passed in April, 1910, and 
quoted from in the statement of facts, also imperatively re- 
quires common carriers to equip their cars with "secure run- 
ning boards." This statute imposes an absolute duty upon 
the common carrier to comply with the statute. Delk v. 8L 
L. £ 8. F. B. Co. 220 U. S. 580, 31 Sup. Ct. 617. That de- 
fendant made proper inspection is no defense if the running 
board was in fact defective. St Louis, I. M. & 8. B. Co. v. 
Taylor, 210 U. S. 281, 28 Sup. Ct. 616. 

Some point is made by counsel for appellant that the fed- 
eral acts were not pleaded. But the answer alleges that de- 
ceased was at the time of the injury engaged in interstate 
commerce and the facts were established upon the trial, and 
the concession of counsel for appellant brings the case within 
the federal acts, and it was therefore the duty of the court to 
apply the law. Or and Trunk ^Y. B. Co. v. Lindsay, 233 U. 
S. 42, 34 Sup. Ct. 581. 

Counsel for appellant claims there was a double recovery 
and that there can be no recovery for pain and suffering. 



1] JANUAEY TERM, 1916. 271 

Calhoun v. Great Northern R. Co. 162 Wis. 264. 

Under the act of April 5, 1910 (36 U. S. Stats, at Large, 291, 
cL 143, 1 Fed. Stats. Ann. (1912 Supp.) p. 335), the cause of 
action for pain and suffering survives to the plaintiff. This 
statute provides for the survival of any right of action given 
by the act to a person suffering injury. The statute has been 
construed in Kansas City 8, R. Co. v. Leslie, 238 IT. S. 599, 
35 Sup. Ct 584, and St. Louis, I. M. & 8. R. Co. v. Craft, 
237 IT. S. 648, 35 Sup. Ct. 704. In the latter case it is said: 

"The conclusion is unavoidable that the personal represent- 
ative is to recover on behalf of the designated beneficiaries, 
not only such damages as will compensate them for their own 
pecuniary loss, but also such damages as will be reasonably 
compensatory for the loss and suffering of the injured person 
while he lived." 

The recovery is not double. Each cause of action consti- 
tutes a separate item of damages. 

It is further argued by counsel for appellant that the 
plaintiff here and sole beneficiary was not dependent upon 
the deceased and therefore no damages are recoverable. 
The court below sustained the findings of the jury on the 
question of damages and there is ample evidence to support 
them. Under such circumstances the findings cannot be dis- 
turbed. Hewitt V. Southern Wis. R. Co. 159 Wis. 309, 150 
N. W. 502; Behling v. Wis. B. & I. Co. 158 Wis. 584, 149 
K W. 484. 

We find no prejudicial error in the record. 

By the Court. — The judgment is affirmed. 

Basnes, J. {dissenting). The only theory on which 
plaintiff can recover is that deceased stubbed his toe against 
the raised end of one of the fo(rtboards on the top of the car 
and that this caused him to lurch forward a distance of six- 
teen and one-half feet and over the end of the car. There is 
no evidence that deceased did stub his toe and no evidence 
as to what caused him to fall. There is evidence that foot- 



272 SUPKEME COUKT OF WISCONSIN. [Ebb. 

Mohawk Co. t. Bankers Surety Co. 162 Wis. 272. 

prints were discernible on the running board which were 
wide apart, and it is said that this evidence was sufficient to 
warrant the jury in finding that the accident happened in the 
manner stated. There is a possibility that the injury oc- 
curred in this way. The probabilities are that it did not 
It was incumbent on the plaintiff to show by a preponderance 
of the evidence that the defect complained of was in some de- 
gree responsible for the death of Mr. Calhoun. It seems to 
me that the cause of his death rests in pure conjecture. 

WiNSLow, C. J. I concur in the foregoing dissent. 

Marshall, J. I concur in the foregoing disselnt. 



Mohawk Compant, Kespondent, vs. Bankebs Sueett Com- 
pany, imp.. Appellant 

January 11 — February i, 1916, 

Landlord and tenant: Breach of covenants: Remedies of lessor: EleC' 
tion: Foreclosure: Liens: Quieting title: Covenant to erect Imild' 
ing: Conditions of surety hond: Measure of damages for breach. 

1. The right, under a stipulation in a lease, to declare a forfeiture 

thereof for breach of any of its covenants by the lessee, is one 
created for the benefit of the lessor, and he is not obliged to in- 
voke it, but may elect whether to hold the lessee responsible in 
damages for the breach or to declare the lease at an end. 

2. Where in a lease for ninety-nine years the lessees agreed to erect 

a building on the land, to be completed before a certain date, and 
gave a bond to secure performance of such agreement and to 
save the lessor harmless from all liens and claims for liens and 
all costs, charges, and damages (including costs of suits) for or 
on account of such liens or claims, such condition of the bond 
shows that it was contemplated that the lessor was to have time 
to clear the leased premises of such liens by action if necessary. 

3. The lessees having defaulted in payment of the rent and also in 

the erection of the building, the lessor gave notice of the termi- 
nation of the lease and commenced foreclosure proceedings 



1] JANUARY TERM, 1916. 273 

Mohawk Co. v. Bankers Surety Co. 162 Wis. 272. 

under sec. 2197a, Stats., but it appeared that improvements to 
the amount of $5»000, required in order to bring the case within 
that statute, had not been made. Held, that a foreclosure judg- 
ment under the statute was improper, but such judgment was 
within the general jurisdiction of equity, valid between the par- 
ties, and sufficient as a decree to remove a cloud on the title as 
against the lessees and those claiming liens under or through 
them. 

4. The surety on the bond given by the lessees, not having been 
made a party to the foreclosure suit and the defense thereof not 
having been tendered to it, was not concluded by the judgment; 
nor was it relieved thereby of anything. 

6. The acts of the lessor in giving notice and prosecuting the fore- 
closure suit were equivalent to an election by him to terminate 
the lease and take possession one year after judgment therein 
quieting his title, unless the premises were sooner redeemed; 
and, the lessor having the right to clear the premises of liens 
at their expense, neither the lessees nor their surety could ob- 
ject to this. 

6. For the lessees' default in failing to erect the building (which 

would have been security for the performance of all other cove- 
nants of the lease) the measure of damages recoverable is not 
the same as in case of building contracts generally. The lessees 
and the surety on their bond are liable for all damages logically 
flowing from such breach; and the fact that performance of the 
covenants to pay rent and taxes was not covered by the bond, 
cannot be taken to enlarge or diminish such damages. 

7. The damages recoverable in such case Include rents and taxes, not 

paid by the lessees, which accrued prior to the time when the 
lessor elected to and did resume possession of the premises free 
and clear of liens; but do not Include rents or taxes accruing 
thereafter. 

Appeal from a judgment of the circuit court for Douglas 
county: Chestee A. Fowleb, Judge. Reversed, 

For the appellant there were briefs by Abbott, MacPher- 
ran, Lewis & Gilbert^ and oral argument by E. W. MacPher- 
ran. 

For the respondent there was a brief by Eanitch & Hart- 
ley, and oral argument by C. J. Hartley and Louis Hanitch. 

Timlin, J. The plaintiff, owner of certain land, on Oc- 
tober 1, 1909, executed a lease thereof for ninety-nine years 

Vol. 162 — 18 



274 SUPREME COURT OF WISCONSIN. [Feb. 

Mohawk Co. ▼. Bankers Surety Co. 162 Wis. 272. 

to Matthew and William Leithauser. The lessees agreed to 
forthwith proceed and erect according to described plans and 
specifications a building upon the demised premises and to 
complete the same on or before May 1, 1910. At the termi- 
nation of the lease, all its covenants performed, the building 
was to be the property of the lessor. The performance of 
this covenant was required to be and was secured by bond in 
the sum of $30,000 with the appellant as surety thereon, and 
this action is on the bond. The condition of the bond was : 

"Now, therefore, if the said principals shall erect and com- 
plete said theater building in full conformance with said 
plans and specifications not later than May 1, 1910, and 
save said obligee harmless from any and all liens and claims 
for liens for or on account of work, skill, or materials used in 
said constructions and from all costs, charges and damages 
(including costs of suits begun or completed, with a reason- 
able allowance for attorney's fees) for or on account of such 
liens or claims for liens, then this obligation shall be null and 
void, otherwise of full force and effect" 

This bond was dated October 26, 1909, and immediately 
after its execution the lessees took possession of the demised 
premises and commenced the erection of the building pro- 
vided for in the lease. They proceeded therewith as far as 
to construct a basement wall, when they ceased operations. 
After the execution of the lease and bond the lessees assigned 
their term to a corporation called the People's Theater Com- 
pany. Only two quarterly instalments of rent were paid 
under the lease. The lease contained, in addition to the 
covenant to build, covenants to pay rent quarterly and to pay 
taxes and assessments and also other covenants. Sec. 2197a, 
Stats., in force when this lease was executed, provided that in 
case of a default in the conditions or breach of the covenants 
of any lease of land for a term exceeding fifty years which re- 
quired the lessee to construct improvements or buildings on 
the land demised at his cost exceeding in value $5,000, and 
in case such improvements have been made, the lessor might 



1] JANUARY TERM, 1916. 275 

Mohawk Co. v. Bankers Surety Co. 162 Wis. 272. 

have a remedy by foreclosure. The latter, in such case, was 
denied the remedy of unlawful detainer provided by ch. 145, 
Stats. The lessee in such case is entitled to retain possession 
for one year and pay up the rent in arrears and that subse- 
quently accruing, etc., and have the property. During this 
year the lessee is entitled to the rents, issues, and profits 
thereof. At the end of the vear the lessor is entitled to a writ 
of assistance in case the lessee refuses to surrender posses- 
sion. Notice of termination of lease was given, and fore- 
closure was begun under this statute by the plaintiff against 
the lessees and their assignees and carried to judgment, but 
the facts did not bring the lease in question within the terms 
of that statute because improvements to the amount of $5,000 
had not been actually made on the demised premises. 

This statute confers very valuable rights upon the lessee 
described in the statute and cuts the lessor off from a some- 
what summary remedy common to all other lessors. Those 
entering into a lease after the enactment of this statute are 
supposed to do so with knowledge of the statute. The right 
to this foreclosure is given to the lessor in language permis- 
sive in form but perhaps mandatory where the lessee chooses 
to assert the valuable rights conferred on him by that statute. 
Whether improvements to the value of $5,000 or the improve- 
ments specified in the lease have actually been made is usually 
a question of fact. 

In the instant case there was default in the payment of 
rent and there was also default in failing to construct the 
building required. For the damages flowing from the latter 
default the lessees and their surety, the appellant, are liable. 
The question is here upon the rule of damages. On the part 
of the appellant it is contended that the measure of damages 
should be the same or similar to that applied in cases of build- 
ing contracts generally. This contention must be dismissed 
at once, for the relations of the parties are entirely different. 
There the owner agrees to pay a certain sum of money and 



276. SUPKEME COUKT OF WISCONSIN. [Fbb. 

Mohawk Co. v. Bankers Surety Co. 162 Wis. 272. 

the contractor agrees to erect a described building. The ad- 
vantage lost to the owner is really the difference in value be- 
tween the sum which he agreed to pay and the building in 
place which the contractor agreed to erect, together with 
loss of use of the property for some time. Here the owner 
was to pay nothing and to have a building placed upon his 
premises which would be security for the performance of all 
other covenants in the lease on the part of the lessee. The 
owner has parted with the full consideration by executing 
and delivering the lease for the desired term upon the agreed 
rata His position is more analogous to that of an owner 
who has paid the building contractor in advance. Neither is 
the fact that the lease contained a covenant to pay rent and 
another to pay taxes, which covenants were not mentioned in 
the bond, important. The presence of these covenants and 
the failure to require security for their performance cannot 
be taken to enlarge or diminish the legal damages logically 
flowing from the breach in question and hence within the con- 
templation of the parties. We may also lay out of sight a 
covenant on the part of the lessors that they would advance as 
a loan the simi of $20,000, to be secured by mortgage upon 
the $30,000 building to be erected when erected. There 
would even then be an equity of redemption of $10,000 avail- 
able to the lessors as security. The right to declare a for- 
feiture of a lease is one created by stipulation in the lease for 
the benefit of the lessor and he is not obliged to invoke it 
He has the choice whether to hold the lessee responsible in 
damages for breach of covenant or to declare the lease at an 
end for breach of condition. We do not think his delay to 
declare or enforce a forfeiture has any effect upon the meas- 
ure of damages. The lessor's option above mentioned must 
have been known to the lessees and to their surety when the 
contract of suretyship was entered into. The condition of 
the bond is so written as to cover not only the legal damages 
flowing from the failure to erect and complete the theater 



IJ JANUAEY TERM, 191C. 277 

I ■Mill. ■- ^ - — 

Mohawk Co. v. Bankers Surety Co. 162 Wis. 272. 

building within the time and on the terms specified, but also 
the failure to save the lessor harmless from liens and claims 
for liens imposed upon said premises or created by the lessees, 
including costs of suits begun or completed by the lessor for 
or on account of such liens or claims for liens. This qualifies 
the contract. It indicates that the parties hereto contem- 
plated that the lessor was to have time to clear the leased 
premises of such liens by action if necessary. The foreclo- 
sure judgment mentioned, while improper and unnecessary 
under the terms of the foreclosure statute mentioned, never- 
theless was within the general jurisdiction of eqiiity and valid 
as between the parties thereto, and sufficient as a decree to 
remove a cloud against the lessees and those claiming liens 
for labor or material under or through said lessees. The ap- 
pellant was not a party to that suit and the defense of the 
suit was not tendered to it. It is therefore not conchided 
thereby. But it was not relieved thereby of anything. We 
think the facts amply show that a suit in equity by the lessor 
to remove a cloud was necessary. The acts of the lessor in 
giving notice and commencing and prosecuting imder the stat- 
ute aforesaid, which would have governed the case had the 
improvements stipulated in the lease been made, are equiva- 
lent to an election by the landlord that he would terminate 
the lease and take possession one year after judgment quiet- 
ing his title unless sooner redeemed. Neither the lessees nor 
their surety is in a position to object to this. The founda- 
tion constructed by the lessees was found on sufficient evi- 
dence to add no value to the reversionary interest of the lessor. 
While the damages allowed by the learned circuit court did 
not rest on these exact principles a large part of the amount 
was within the rule of compensation and within the amount 
which the plaintiff would be entitled to recover in any event. 
The cases of Longfellow v. McGregor, 61 Minn. 494, 63 N. 
W. 1032; Johnson v. Cook, 24 Wash. 474, 64 Pac. 729; 
Roch V. Monarch B. Co. 87 Ohio St. 244, 100 N. E. 887 ; 



278 SUPREME COURT OF WISCONSIN. [Feb. 

Mohawk Co. v. Bankers Surety Co. 162 Wis. 272. 

O'Brien v. Ill S. Co. 203 Fed. 436, 121 C. C. A. 546; U. 8. 
V. U. 8. F. & G. Co. 236 U. S. 512, 35 Sup. Ct 298; 8haron 
V. American F. Co. 172 Mo. App. 309, 157 S. W. 972, while 
not exactly in point, contain features somewhat analogous. 

The learned circuit court itemized the damages allowed as 
follows : 

Taxes accruing after the surety contract which should have 
been paid by the lessees and were necessarily paid by the 
lessor $981 08 

Rent unpaid and in arrears up to January 21, 1912, 1 year, 
8 months, 19 days 1,925 00 

Costs and reasonable expenses for attorney fees paid by the 
plaintiff in the suit mentioned 257 15 

Rentals from January 21, 1912, until plaintiff leased the 
property to a third person July 1, 1913 1,395 00 

Taxes and special assessments accruing after January 21, 

1912, necessarily paid by plaintiff 874 42 

Total $5,432 65 

This with interest to January 1, 1915, resulted in a judg- 
ment for $6,070. The plaintiff lost its security for the cove- 
nants of the lease. Compensation, which is the guiding rule 
in damages, would require this loss to be made good. The 
damages had all ac<jrued on May 1, 1910, when the lessees 
failed in their contract to erect the building. But security 
for covenants to be performed or moneys to become due looks 
to the future. When the plaintiff on January 21, 1912, 
elected to resume possession and did resume possession of the 
demised premises free and clear of liens, it accepted this pos- 
session of the demised premises in cancellation of all obliga- 
tions to become due thereafter on the lease. It elected for 
such subsequently accruing damages this remedy instead of 
the remedy for breach of covenant. It did not do so by mere 
threats to take possession or declaration that the lease was at 
an end, because it had the right to clear off liens at appellant's 
expense; but it did by such notice and full possession taken 
free and clear of all liens in pursuance of such notice and the 
decree quieting title. We therefore think that the recovery 
should be reduced by the items of $1,395 for rents accruing 



1] JANUARY TERM, 1916. 279 

Sprout, Waldron ft Co. v. Amery M. Co. 162 Wis. 279. 

after January 21, 1912, when plaintiff took possession, and 
$874.42 for taxes and special assessments also accruing after 
that date. The cause should be remanded to the circuit court 
with directions to reduce the amount by these two items, 
make a new computation of the interest on the remaining 
amount from January 21, 1912, to the date of decree, and 
render judgment in favor of the plaintiff and against the ap- 
pellant in the last mentioned amount. The appellant to re- 
cover costs in this court. 

By the Court. — It is so ordered. 



Speout, Waldeon & Company, Appellant, vs. Ameey Meb- 

CANTiLE Company, Respondent. 

January 11 — February 1, 1916. 

Unlicensed foreign corporations: Validity of contracts: Interstate 
commerce: Bale of property located in the state, 

1. Where a foreign corporation sold to a Wisconsin corporation an 

attrition mill which was located and had been used in this state 
and also another mill which was to be shipped into the state, and 
the price of the former had been agreed upon, although the writ- 
ten contract of sale stated only the gross price for the two, the 
sale of the mill then in the state was not an interstate commerce 
transaction, nor was it a necessary incident to the carrying on 
of such commerce. 

2. The vendor corporation not having been licensed to do business 

in Wisconsin, the contract of sale was void under sec. 17705, 
Stats., in so far as it related to the mill then within the state. 

Appeal from a judgment of the circuit court for Polk 
county: W. B. Quinlan, Judge. Affirmed. 

The plaintiff is a foreign corporation engaged in manufac- 
turing machinery in the state of Pennsylvania and is not 
licensed to do business in Wisconsin. Through its agents it 
sold machinery in this state from time to time, such agents 



280 SUPREME COUET OF WISCONSIN. [Feb. 

Sprout, Waldron ft Co. v. Amery M. Co. 162 Wis. 279. 

taking orders which were filled from the factory located at 
Muncy. In 1913 it sold, through one of its agents, to Boulay 
Brothers of Fond du Lac, an attrition mill manufactured by 
it Under the contract of sale title was reserved in the 
plaintiff because the purchase price had not been fully paid. 
On June 12, 1913, the purchasers began to operate the milL 
It was not satisfactory to them, probably because the motor 
furnished was imable to develop sufficient power to properly 
operate the machine. The purchasers refused to pay the 
purchase price, and thereupon a new agreement was made 
whereby the plaintiff agreed to ship a larger mill to take the 
place of the one then in use, in consideration of the return 
of the old mill and the payment of $125 additional to the 
price at which the old mill was sold. It was further agreed 
between the parties that until such time as the new mill was 
furnished and could be put in operation Boulay Brothers 
were to have the right to use the machine which had been in- 
stalled. Under this arrangement the mill first shipped was 
used until about October 28th, when the new mill was in- 
fitalled and the old one was set asida During the month of 
December, 1913, an agent of the plaintiff called on the de- 
fendant, a Wisconsin corporation, at Amery, Wisconsin, and 
entered into a contract with the defendant for the purchase 
and sale of two mills, one of them being the mill at Fond du 
Lac, and the other to be shipped from the factory in Penn- 
sylvania. The contract stated the gross price to be paid for 
the two mills, but did not specify the amount agreed upon for 
each one of the mills. It was also agreed that some extras 
were to be furnished both for the Fond du Lac mill and the 
one to be shipped from the factory. It was shown in the tes- 
timony without dispute that the agreed price of the mill at 
Fond du Lac was $725. Both mills were delivered accord- 
ing to contract, and defendant refused to pay the agreed 
price, claiming that the condition of the mill at Fond du Lac 
was misrepresented by the agent. The issues raised by the 
pleadings were submitted to a jury, which returned a verdict 



1] JANUAKY TERM, 1916. 281 

Stack y. Roth Brothers Ck>. 162 Wis. 281. 

in favor of the plaintiff for $362.50 on account of the Fond 
du Lac mill. The court set aside this verdict and ordered 
the complaint dismissed on the ground that, plaintiff being a 
foreign corporation not authorized to do business in the state, 
the contract was void and no recovery could be had thereon. 
From this judgment plaintiff appeals. 

For the appellant the cause was submitted on the brief of 
J. W. Boderberg. 

For the respondent there was a brief by TT. N. Fuller, at- 
torney, and W. T. Kennedy, of counsel, and oral argument 
by Mr. Fuller. 

Babnes, J. In this case it is held: 

1. That the sale of the mill at Fond du Lac was not an in- 
terstate commerce transaction, nor was it a necessary inci- 
dent to the carrying on of such commerce. 

2. That the contract, in so far as it involved such mill, was 
a contract relating to property within the state and was void 
under sec. 1770&, Stats. 

By the Court. — Judgment affirmed. 



Stack and others. Appellants, vs. Eoth Beothees Com- 
pany, Respondent 

January 11 — Fehruary 1, 1916. 

Contracts: Talidity: Statute of frauds: Contract for sale of goods: 
Agreement to buy jointly and divide: Consideration: Mutual 
promises: Judicial sale: Chilling bidding: Breach of contract: 
Damages: Pleading. 

1. The statute of frauds (sec. 2308, Stats.) relative to contracts for 
the sale of goods for the price of $50 or more Is applicable only 
to contracts between seller and buyer; and an oral agreement to 
buy jointly and afterwards divide a bankrupt stock of goods was 
not void under that statute nor under the Uniform Sales Act 
(sec. 1684t — i. Stats.). 



282 SUPREME COURT OF WISCONSIN. [Feb. 

stack V. Roth Brothers Co. 162 Wis. 281. 

2. The fact that as to some of the goods the inventory value was to 

measure their division value did not change such an agreement 
from one of division to one of sale. 

3. Each of the parties thereto having agreed to furnish one half of 

the purchase price, the agreement was not nudum pactum, such 
promises being performable, concurrent, and mutually binding 
upon both parties at the same time. 

4. Agreements to bid Jointly at a public sale, if not made for the 

purpose of chilling or suppressing bidding, are valid. 

5. In an action for breach of an agreement to buy Jointly and after- 

wards divide a large bankrupt stock of goods, upon a demurrer 
ore tenus to the complaint damage to the plaintiffs is sufficiently 
shown by allegations that it was necessary for them to make 
financial arrangements for the half of the price which they were 
to furnish, and by a statement of their counsel (which it was 
agreed the court might consider) that they were advised of de- 
fendant's repudiation of the contract at the last moment, when 
they were not able to take care of themselves. 

Appeal from a judgment of the circuit court for Douglas 
county: E. C. Higbee, Judge. Reversed. 

Action to recover damages for the breach of an oral con- 
tract to jointly purchase a stock of goods and divide the same 
after the purchase. 

The allegations in the complaint material to the questions 
raised on appeal are that there was in Superior a bankrupt 
stock of goods of the wholesale value of $170,863.12 adver- 
tised for sale on a certain date; that a short time previous to 
said date the plaintiffs and the defendant entered into a con- 
tract wherein 

"it was mutually promised, understood, and agreed, among 
other things, that in consideration of the mutual promises of 
the parties, said parties should bid at said auction sale not to 
exceed the sum of one hundred twenty thousand dollars 
($120,000), and should buy the said stock of merchandise 
and said store fixtures, provided the same could be bought 
for not to exceed said sum, and that such bids were to be 
made and such stock and fixtures purchased for the joint 
benefit of both parties. It was further mutually understood 
and agreed, that if the parties, or either of them, were the 
successful bidders and said stock and fixtiires were purchased 



1] JANUARY TEEM, 1916. 283 

stack v. Roth Brothers Co. 162 Wis. 281. 

by them or either of them, each of said parties should con- 
tribute one half of the amount of the bid upon which said 
stock and fixtures were purchased; that the store fixtures 
should be taken by the plaintiffs at fifty per cent, of the in- 
ventory value thereof; that the men's clothing and men's 
shoes should be sold in bulk, and the money realized from the 
sale thereof equally divided; that said Roth Brothers Com- 
pany should be assigned and should take all the ladies' and 
children's shoes, and all the house furnishings ; that plaintiffs 
should be assigned and should take all the cloaks, suits, and 
furs, and that the balance of said stock should then be di- 
vided between the parties pro rata. That relying upon the 
promises and agreements of the defendant aforesaid, plaint- 
iffs made arrangements to obtain the necessary amount of 
money, and to carry out the contract on their part, and, on 
the day of said sale, and before and at the hour set for the 
same, appeared at the place at which said sale was advertised 
.to be made, ready and willing to carry out and perform the 
aforesaid contract on their part; that the defendants, then 
and there, repudiated said contract, and refused to perform 
the same, and the said defendants, then and there, bid on 
said stock and said fixtures at said auction sale and were the 
successful bidders thereat, and purchased the said stock and 
the said fixtures at said sale for the sum of one hundred one 
thousand seven hundred fifty ($101,750) dollars, and wholly 
refused to carry out said contract or to assign or transfer to 
the plaintiffs said store fixtures and the portion of said stock 
which it was agreed should be assigned to plaintiffs, or any 
part thereof, but, on the contrary, said defendants retained 
the whole of said property for their sole benefit and profit, 
contrary to the terms of the agreement aforesaid." 

Plaintiffs demand judgment in the sum of $26,405.68. 

At the opening of the trial plaintiffs' counsel stated that 
the contract was oral; also that the defendant on the day of 
the sale and before the bidding began notified plaintiffs that 
it repudiated the contract. But he further stated, "they 
[plaintiffs] came there ready to carry, out their agreement 
and at the last second were put in a position not to be able to 
take care of themselves." The parties agreed that the state- 



284 SUPREME COURT OF WISCONSIN. [Feb. 

stack T. Roth Brothers Co. 162 Wis. 281. 

merits of plaintiffs' counsel that the contract was oral, and was 
repudiated by defendant before sale, should be considered by 
the court in ruling upon a demurrer ore tenus to the com- 
plaint. The court sustained the demurrer upon the ground 
that the alleged contract was nudum pactum, and from a 
judgment dismissing the action the plaintiffs appealed. 

For the appellants there was a brief by Orace, Hudnall <6 
Fridley and W. P, Crawford, and oral argument by Mr. C. 
R. Fridley and Mr. Crawford, 

For the respondent there was a brief by Hanitch & Hart- 
ley, and oral argument by Louis Hanitch and C. J. Hartley. 

ViNJE, J. The defendant seeks to sustain the judgment 
on two grounds : first, because the contract is void under the 
statute of frauds, sec 2308, Stats. 1915, and the Uniform 
Sales Act, sec. 1684f — 4, Stats. 1915; and second, because, 
the contract is nudum pactum and, no part of the same hav- 
ing been executed and the plaintiffs not having been placed 
at a disadvantage by the repudiation thereof, no recovery can 
be had. Though the court disposed of the case on the second 
ground, counsel for defendant, if we understand them cor- 
rectly, place more reliance upon the first ground stated. 
They argue that the complaint presents a case where joint 
owners agree to sell to one of the joint owners part of the 
property at a fixed price, and that such agreement comes 
within the statute of frauds and the Uniform Sales Act and 
is therefore void. The only case cited as being directly in 
point is Mace v. Heath, 30 Neb. C20, 46 N. W. 918. The 
syllabus sustains the claim made, but the facts of the case do 
not. There is a fatal variance between the two. The svUa- 
bus states : 

"A verbal contract to engage in the business of purchasing 
five carloads of baled hay, and dividing the same with the de- 
fendants, the value being in excess of $50, no part of the hay 
being delivered, nor any portion of the consideration being 
paid, is within the statute of frauds, and void.'' 



1] JANUARY TERM, 1916. 286 



Stack V. Roth Brothers Co. 162 Wis. 281. 



The facts as stated in the opinion are that the defendant 
in error entered into an oral agreement with the plaintiffs in 
error to sell and deliver to them five carloads of hay, which 
was to he purchased by him and shipped in his name. In a 
counterclaim they ask damages for the breach of such oral 
contract Obviously an unexecuted oral contract by A. to 
sell to B. and C. hay of the value of more than $50 is void 
under the statute of frauds. There was no joint venture or 
partnership feature about the transaction. It was simply an 
oral agreement by one party to sell hay to two parties. 

The case of WUey v. Wiley, 115 Md. 646, 81 Atl. 180, re- 
lied upon by the defendant, was one where two parties orally 
agreed to jointly farm a certain tract of land to be purchased ; 
to apply the profits on the purchase price, and when the tract 
was paid for each should receive a deed of a one-half interest 
therein. The grantor deeded to one of the parties and the 
other brought an action against his copartner for specific per- 
formance. The court held he was not entitled thereto, as his 
oral agreement was void under the statute of frauds, requir- 
ing an agreement for an interest in land to be in writing. 
The court, however, awarded him compensation for the value 
of his share of the profits with interest The case of Oreen 
V. Drummond, 31 Md 71, is very similar in its facts. Both 
cases were held to be within the statute because an interest in 
land was sought to be enforced through an oral agreement. 
The present case is not such a one. It is more like that of 
Bullard v. Smith, 130 Xass. 492, 2 K E. 86, in which it was 
held that an oral agreement to share equally in the profits and 
losses resulting from the purchase and sale of stock already 
owned by one of the parties to the agreement was not within 
the statute of frauds. In Mason v. SpUler, 186 Mass. 346, 
71 N. E. 779, an oral agr^ment between parties for a di- 
vision of the remaining partnership property was held not to 
be within the statute because there was no contract of sale. 
So, also, in Bogigian v. Hassanoff, 186 Mass. 880, 71 N. E. 



286 SUPREME COURT OF WISCONSIN. [Feb. 

Stack y. Roth Brothers Co. 162 Wis. 281. 

789, it was held that an oral agreement between the owner of 
goods and one who had advanced money on them that they 
should be sold by the combined efforts of the parties on terms 
and conditions agreed upon and the proceeds applied to com- 
pensating the lender to the amount advanced and the balance 
to go to the owner, was not within the statute of frauds. 

In Mygatt v. Tarbell 78 Wis. 351, 47 N. W. 618, it waa 
held that an agreement between two execution creditors, each 
of whom claimed priority in his levy upon certain property^ 
to allow it to be sold under one execution and to divide the 
proceeds equally, was not void under the statute of frauds as 
a sale of the property. The same was held in Hunt v. El- 
liott , 80 Ind. 245, where two mortgagors of personal property 
orally agreed that one should bid it in at a judicial sale and 
dispose of it for the benefit of both. 

An oral agreement for the joint purchase of a sloop is not 
within the statute of frauds. Reeves v. Ooff, Penn. (N. J.) 
609. So an oral agreement to purchase property at the re- 
quest of another, hold it, and upon being reimbursed for his 
expense and trouble transfer it to the other, is not within the 
statute because it is not an agreement to sell from one to the 
other. Blair v. Lynch, 20 N. Y. Wkly. Dig. 576. This 
case was reversed upon another ground by the court of ap- 
peals in 105 N. Y. 636, 11 N. E. 947, where the question of 
the statute of frauds is not discussed. In Colt v, Clapp, 127 
Mass. 476, 480, it is stated that the statute of frauds rela- 
tive to the sale of goods of the value of $50 or more is ap- 
plicable only to contracts between seller and buyer. This 
rule was recognized by our court in Brown v. Slauson, 23 
Wis. 244, where it was held that since the oral agreement be- 
tween plaintiff and defendant was that the latter should buy 
a boat and afterwards sell plaintiff a quarter interest therein, 
and not, as contended by plaintiff, an oral agreement for a 
joint purchase of the specified interests, it was void under 
the statute of frauds. A like ruling was made in Lewin v. 



1] ' JANUARY TERM, 1916. 287 

stack V. Roth Brothers Co. 162 Wis. 281. 

Stewart, 17 How. Pr. 5, where it was unsuccessfully sought 
to show that the purchase of cotton was a joint purchase in- 
stead of a purchase by one and a resale to the other. But in 
Dodge v. Clyde, 7 Rob. (N. Y.) 410, where it was shown 
that three parties were jointly interested in the purchase of 
a ferry-boat, it was held that the statute did not apply because 
there was no sale from one to the others, but merely a di- 
vision of interests growing out of a joint purchase. For 
somewhat analogous cases held not to be within the statute 
see Smith on the Law of Fraud, § 373, sub. (e). 

It will be seen from the preceding cases that wherever 
there has been an oral agreement to buy jointly it has been 
held not to be within the statute, irrespective of whether the 
joint property so bought was to be sold and the proceeds di- 
vided or the property itself divided in specie. In the case at 
bar the agreement is for both kinds of division. The fact 
that as to some of the property the inventory value is to 
measure its division value does not change the agreement 
from one of division to one of sale. The parties do not stand 
in the relation of seller and buyer. They agree to buy jointly 
and to divide what they buy. 

The argument of defendant's counsel that the cases involving 
a partnership relation were so decided because the general part- 
nership agreement determined the share each was to take 
upon a division does not seem to be borne out by the cases 
themselves. In each of them the oral agreement contained 
the terms of division, and it was this agreement together with 
that of joint purchase that was held valid. The conclusion 
we reach both upon principle and authority is that the oral 
agreement pleaded is not within the statute of frauds, sec. 
2308, Stats. 1915, nor within the Uniform Sales Act, sec 
1684^—4, Stats. 1915. 

It is quite evident that the agreement was not niidum pac- 
tum. The consideration was a promise for a promise. 
Plaintiffs agreed to furnish one half the purchase price and 



288 SUPREME COUET OF WISCONSIN. [Feb. 

stack V. Roth Brothers Co. 162 Wis. 281. 

the defendant to furnish the other half. Such promises were 
perfonnable, concurrent, and mutually binding upon both 
parties at the same time. This satisfies the call of the law. 
Hopkins v. Racine M. & W. I. Co. 137 Wis. 583, 119 N. 
W. 301; 6 Ruling Case Law, 676 et seq. 

The agreement to buy jointly at the public sale was valid. 
This was a sale of a large stock, and it must be presumed 
from the allegations of the complaint to the effect that it was 
necessary for plaintiffs to make arrangements to procure one 
half the purchase price that they could not handle the stock 
alone. Agreements to bid jointly at a public sale, if not made 
for the purpose of chilling or suppressing bidding, are valid. 
Hunt V. Elliott, 80 Ind. 245 ; 6 Ruling Case Law, 811 and 
cases cited. 

The claim that plaintiffs were not put to a disadvantage by 
a breach of the contract on the day of the sale is not sustained 
by the allegations of the complaint charging that it was nec- 
essary for them to make financial arrangements for one half 
the purchase price and the oral statement of their counsel 
that they were advised of the breach at the last second when 
they were not able to take care of themselves. Upon a de- 
murrer ore tenus these allegations and statements of counsel, 
which the parties agreed might be considered, prima facie 
show damage. 

By the Court. — Judgment reversed, and cause r^nanded 
for further proceedings according to law. 



1] JANUARY TERM, 1916. 289 



I. L. Lamm Co. v. Peaks, 162 Wis. 289. 



I. L. Lamm Company, Appellant, vs. Peaks and another, Re- 
spondents. 

January 12 — February 1, 1916, 

Attachment: Demand not due: Condition precedent: Insufficient «ji- 
dertaking: Vacating judgment and attachment. 

The giving of the undertaking required by sec. 2731, Stats., for three 
times the amount demanded is a condition of the right to main- 
tain an action on a demand not yet due; and where such an un- 
dertaking was not given it was proper for the trial court, on mo- 
tion, to set aside a Judgment taken by default and vacate the at- 
tachment proceedings. 

Appeal from an order of the circuit court for Washburn 
county : George Geimm, Judge. Affirmed. 

Plaintiff commenced an action in the circuit court for 
Washburn county on a demand, not due, for $330.50 and in- 
terest thereon from March 4, 1915, and caused a writ of at- 
tachment to be issued therein, pursuant to which, in form, a 
levy was made on real estate in which defendants were inter- 
ested. In due time judgment was rendered in such action. 
Defendants appeared in the action but did not answer. No 
notice of the application for judgment was given. As soon 
as they were informed of the judgment, they caused a mo- 
tion to be made to set it aside and to vacate pending proceed- 
ings to enforce it, upon the ground, among others, that the 
statute authorizing the maintenance of an action and the is- 
suance of a writ of attachment therein on a demand, not due, 
was not complied with in that the undertaking given was not 
conditioned in three times the amount of the demand. The 
undertaking was in the sum of $750, or less than twice the 
amount of the demand. The motion was granted. 

For the appellant the cause was submitted on the brief of 

W. E. Ilaily. 

L: H. Mead, for the respondents. 
Vol. 162 — 19 



290 SUPKEME COURT OF WISCONSIN. [P 



I. L. Lamm Co. v. Peaks, 162 Wis. 289. 

Marshall, J. The onlj authority for the maintenance 
of an action to recover a debt, not due^ is found in sec 2731, 
Stats., which requires, as a condition of such maintenance, 
the issuance of a writ of attachment upon an undertaking in 
three times the amount of the demand. It is conceded that 
such an undertaking was not given, but is suggested that tHe 
remedy of the defendants was by plea in abatement The 
case not being one where there was a complete cause of action 
when the summons was served, but something was required 
to be done as a condition of enforcing it, a motion in the ac- 
tion to vacate the proceedings w :is proper. So ruled in Lon^ 
bard v. McMUlan, 95 Wis. 627, 634, 70 N. W. 673. 

That the giving of the undertaking required by sec. 2731 
was an absolute condition of the right to maintain the action, 
and in absence thereof that it was proper for the court to dis- 
miss it and vacate all proceedings had therein, is ruled by 
Oowan V. Hanson, 55 Wis. 341, 13 N. W. 238, and Streis^- 
guth v. Reigelman, 75 Wis. 212, 43 N. W. 1116. 

In the first case cited, this court held that "the giving of 
an undertaking for three times the amoimt demanded is as 
essential to the right to maintain the action as the making of 
the affidavit Both things are absolutely necessary and requi- 
site where the debt is not due, and the omission of either is 
fatal to the action," and that the circuit court should have 
dismissed the suit on defendant's motion. 

It follows that no error was committed in vacating the 
judgment and attachment proceedings. 

By the Court. — The order is affirmed. 



1] JANUARY TERM, 1916. 291 

Rock V. Ekern, 162 Wis. 291. 

Rock, Respondent, vs. Ekebn, Appellant 

January 12 — February 1, 1916, 

Contracta: Validity: Public policy: Private employment of counsel to 
<i39ist district attorney in criminal prosecution, 

1. The employiaent and payment by private persons of counsel to as- 

sist the district attorney in the prosecution of persons for crime 
is against the public policy of this state, and a contract therefor 
is void. 

2. The preliminary examination of a person accused of crime is 

merely one step in the prosecution of such crime, and the rule 
above stated Is applicable thereto. 

3. Acquiescence of the accused, the court, and the district attorney 

in the rendering of assistance to the district attorney by an atp 
tomey privately employed does not purge the contract of em- 
ployment of its illegality or furnish ground for a recovery of 
compensation under it. 

Appeal from a judgment of the superior court of Douglas 
county: Chables Smith, Judge. Reversed. 

This is an action brought by the plaintiff, an attorney at 
law, to recover for services rendered pursuant to a contract 
in a criminal prosecution in which defendant was the com- 
plaining witness. 

One Eowler, treasurer of a company in which defendant 
was interested, was charged with having embezzled some of 
the company^s money. Plaintiff was employed by the de- 
fendant to secure a requisition from the governor for the re- 
turn of the accused. After the requisition was issued the 
accused returned to the state in response to it A short time 
before the preliminary hearing of the accused the defendant 
entered into a contract with the plaintiff by which the plaint- 
iff was employed by the defendant privately to assist in the 
criminal prosecution of the accused. The district attorney 
consented to this assistance. The contract reads as follows : 



292 SUPEEME COURT OF WISCONSIN. [Feb. 

Rock V. Ekern, 162 Wis. 291. 

"February 26, 1914. 
"4. T. 'Rocky the undersigned, hereby agrees to assist the 
district attorney of Douglas county, Wis., in the prosecution 
of Homer T. Fowler so long as L, P. Ekem, the complaining 
witness, desires the services of said Rock therein, at and for 
the sum of twenty-five (25) dollars per day and his expenses 
when called from home in said prosecution; and said L. P. 
Ekem hereby agrees to pay said Rock for his services said 
sum of twenty-five (25) dollars per day for each and every 
day of his services and pay his expenses when out of Superior 
or Duluth, Minn., in said work. 

(Signed) «A. T. Rock. 

"L. P. Ekeen. 
"February 26, 1914. 
"Received from L. P. Ekem twenty-five (25) dollars as 
advance fees on above contract 

(Signed) "A. T. Rock.'^ 

The plaintiff assisted in the preliminary examination of 
Fowler, and the court, tlie district attorney, the lawyers of 
the accused, and the accused acquiesced in the plaintiff's as- 
sisting the district attorney in the prosecution of the case. 
Plaintiff had full charge of the case and conducted the ex- 
amination. At the conclusion of the hearing the municipal 
judge disQiissed the complaint against the accused and that 
terminated the prosecution. The defendant refused to pay 
the plaintiff for his services as per contract, and this suit was 
brought to recover payment for the services rendered under 
the contract The following is an itemized statement of the 
amount plaintiff claims is due him from defendant: 

1913. 
Feb. 25. One-half day examining books of Fowler-Eimon- 

Oyaas Co., at $25 per day $12 50 

Feb. 26-27-28. Examining books of Fowler-Eimon-Oyaas Co., 

at $25 per day 75 00 

Mar. 3 to 12. Attending trial of State of Wisconsin vs. Homer 

Fowler, nine days at $25 per day 225 00 

April 3 and 4. Attending court in case of L. P. Ekem vs. 

Homer Fowler, at $25 per day 50 00 

Total $362 00 



1] JANUARY TERM, 1916. 293 

Rock T. Ekern, 162 Wis. 291. 

The court submitted a general verdict to the jury, who 
found for the plaintiff in the sum of $212.50. The verdict 
contains the statement : "Of the above sum nothing is found 
as fees in the civil suit." This part of the verdict is not in- 
volved on this appeal. The court in accordance with the ver- 
dict entered judgment for the plaintiff to recover the sum of 
$212.50, together with the costs and disbursements of the ac- 
tion. From such judgment this appeal is taken. 

The cause was submitted for the appellant on the brief of 
JIanitch & Hartley, and for the respondent on that of Diet- 
rich & Dietrich. 

SiEBECKES, J. The plaintiff sues upon the express con^ 
tract he made with the defendant, which appears in the fore- 
going statement It was agreed that the plaintiff was "to 
assist the district attorney of Douglas county. Wis., in the 
prosecution of Homer T. Fowler so long as L. P. Ekern, the 
complaining witness, desires the services . . ." The evi- 
dence shows that the plaintiff rendered services under the 
contract by assisting the district attorney in conducting the 
preliminary examination in the municipal court of Douglas 
county. He claims there was due for nine days' services in 
attending court on such examination the sum of $225. The 
jury found $212.50 due him for such services and included 
nothing for other services. The defendant challenges the 
right of plaintiff to recover under the contract upon the 
ground that the contract is against the policy of the law and 
the statutes of this state and void, and that no recovery there- 
on will be permitted. The question of the policy of the 
state, regarding such contracts as this, was examined by this 
court in the case of Biemel v. State, 71 Wis. 444, 37 N. W. 
244. In that case an attorney who had been employed and 
paid for his services by a private party was permitted by the 
court to assist the district attorney in the prosecution of the 
case. This court there held that the statutes of the state pro- 



294 SUPREME COUET OF WISCONSIN. [Feb. 

Rock T. Ekern, 162 Wis. 291. 

viding for the election of a district attorney to act as the pub- 
lic prosecutor and prohibiting him from receiving "any fee 
or reward from or on behalf of any prosecutor or other indi- 
vidual, for services in any prosecution or business to which it 
shall be his official duty to attend; nor be concerned as at- 
torney or counsel for either party, other than for the state or 
county, in any civil action depending upon the same state of 
facts upon which any criminal prosecution commenced but 
undetermined shall depend," together with the statute vest- 
ing in the judges of the courts the power to appoint attorneys 
to assist the district attorney whenever the court finds it nec- 
essary and proper in prosecuting felonies and prosecutions 
before grand juries, declare a policy of the state which regu- 
lates and limits the appointment of such counsel to assist in 
such prosecutions to attorneys who are not employed and paid 
by private parties, and that such counsel must be appointed 
by the court and paid from the public fund and thus place 
such assisting attorney in the same position of impartiality 
as the district attorney elected by the people. The court de- 
clared : 

"We think it is quite clear from the reading of our stat- 
utes on the subject, as well as upon public policy, that an at- 
torney employed and paid by private parties should not be 
permitted either by the courts or by the prosecuting attorney 
to assist in the trial of such criminal cases." 

It is emphasized in the opinion that prosecutors in crimi- 
nal cases should be free from prejudice and have no private 
interest in prosecutions. In Wight v. BindsJcopf, 43 Wis. 
344, in speaking of the duties and functions of prosecuting 
officers, the court states that he "is a gwcwt-judicial officer, re- 
tained by the public for the prosecution of persons accused of 
crime, in the exercise of a sound discretion to distinguish be- 
tween the guilty and the innocent. . . . He is trusted with 
broad official discretion, generally subject, however, to judi- 
cial control." These views are supported in the case of State 



1] JANUARY TERM, 1916. 295 

Rock y. Ekern, 162 Wis. 291. 

V. Russell 83 Wis. 330, 53 X. W. 441. These adjudications 
clearly establish that employment and payment of private 
counsel to assist the district attorney in the prosecution of 
persons for crime by private parties is against the public pol- 
icy of this state. We are of the opinion that this policy has 
not been changed by subsequent legislation and must be ad- 
hered to. From the facts and circumstances shown in this 
case it appears that plaintiff contracted with the defendant 
*'to assist the district attorney of Douglas county, Wis., in 
the prosecution of Homer T. Fowler so long as L. P. Ekem 
[defendant], the complaining witness, desires the services of 
said Roch [plaintiff] therein. . . ." It is without dispute 
that the amount of the recovery against defendant was for 
services plaintiff rendered under this contract in the prelimi- 
nary examination of Fowler upon defendant's complaints. 
The contract as proved is against the public policy of this 
state and the trial court erred in permitting the plaintiff to 
recover thereon. The acquiescence of the accused, the court, 
and the district attorney to allow plaintiff to assist in the 
prosecution of Fowler under his private employment by de- 
fendant does not purge the contract of employment of its il- 
legal character and affords no excuse to enforce it Wight v. 
Rindskopf, supra. In Melchoir v. McCariy, 31 Wis. 252, it 
was held: "The general rule of law is, that all contracts 
which are repugnant to justice, or founded upon an immoral 
consideration, or which are against the general policy of the 
common law, or contrary to the provisions of any statute, are 
void;" even where such statute does not expressly declare 
them void. 

It is argued that the plaintiff rendered the services here 
involved upon the preliminary examination and hence they 
are not of the class of services which are prohibited to be per- 
formed by counsel employed by private parties under this 
public policy. We cannot accede to this claim. A prelimi- 
nary examination of a person accused of crime is one step in 



296 SUPKEME COURT OP WISCONSIN. [Feb. 

Brobst V. Marty, 162 Wis. 290. 

the prosecution for the crime charged. It is so regarded and 
treated in the common law and the statutes. The court com- 
mitted error in permitting the plaintiff to recover on the con- 
tract in this case. 

By the Court, — The judgment appealed from is reversed, 
and the cause remanded to the superior court of Douglas 
county with direction to enter judgment dismissing plaint- 
iff's complaint 



Brobst and others, Appellants, vs. Maety and another, Re- 
spondents. 

January 12 — February 1, 1916. 

Partition of personal property of unincorporated association: Build- 
ing erected on land given with provision for a reverter: Fixtures. 

1. Where a voluntary, unincorporated association, organized to build 

a cheese factory and to make and sell cheese and butter, built 
such a factory upon land which was given to it for that purpose 
but was to revert to the donors in case the building so placed 
thereon should cease to be used for such purpose, .the members 
of the association were owners of such btniding as tenants in 
common and, in the absence of any agreement to continue the 
business for any specified length of time, a part of such owners 
might maintain an action under sec. 2327a, Stats., for a division 
of the property. 

2. If the association took possession of the land under an oral con- 

tract of gift which was void under the statute of frauds and such 
contract became vaUdated by performance, the rights of the asso- 
ciation must be measured by such contract. 

S. A finding by the trial court that the cheese factory, though built 
upon a solid stone foundation, was personal property which 
would not revert to the original owners of the land, is held to be 
supported by the evidence. 

4. While physical annexation is an important consideration in de- 
termining whether an article or building is a fixture, the inten* 
tion of the parties is the controlling consideration. 

Appeal from a judgment of the circuit court for Green 
county : George Gbimm, Circuit Judge. Reversed. 



1] JANUAKY TEEM, 1916. 297 



Brobst Y. Marty, 162 Wis. 296. 



This action was brought to secure partition of personal 
property, or a sale thereof in case it could not be partitioned 
to advantage. The court found as facts that the plaintiflFs and 
certain others in February, 1898, organized a voluntary un- 
incorporated association for the purpose of building a cheese 
factory and of manufacturing and selling cheese and butter, 
such association to be named the Spring Creek Cheese Manu- 
facturing Company; that it was understood by the parties 
that their interests should be known and designated by shares 
of stock and that each of such shares should be in the sum of 
$25, and that the number of shares originally subscribed for 
was twenty-three, and that thereafter some changes in owner- 
ship took place and that four additional shar^ were sold; 

that at the time of the organization it was intended that the 

• 

same should be incorporated, but such intention was never 
carried into effect; that about the time of the organization one 
Stabler agreed to give to the company one quarter of an acre 
of land and one Brobst a like qittintity, upon the condition 
that the same should be used by said company as long as it 
was used for cheese or butter making purposes ; that it was 
the intention of said donors and it was understood and agreed 
between them and the organizers of the company that in the 
event that said company or its assigns should cease to use the 
lands for such purposes the same should revert to the donors ; 
that such agreement was verbal on the part of Stabler and as 
to Brobst was in writing, but that said written agreement has 
been lost; that thereafter the company entered into posses- 
sion of the land donated and erected valuable improvements 
thereon, consisting of a cheese factory, cellar, well, and bam, 
and graded a driveway from the highway to the cheese fac- 
tory, and that they expended in all about the sum of $1,200 ; 
that part of such factory is built on the land donated by Stab- 
ler and part on the land donated by Brobst; that the buildings 
were and are built on a solid stone foundation embedded in 
the soil and that a cheese cellar was excavated under a part 
of the factory building, and that the walls and floors thereof 



298 SUPKEME COUKT OF WISCONSIN. [Feb. 

Brobst V. Marty, 1C2 Wis. 296. 

are of stone, mortar^ and cement; that said asaociation has 
by itself and its tenants been in the constant possession, use, 
and occupation of the premises, which have been continu- 
ously used and are now being used for the purpose of manu- 
facturing cheese; that the agreement between Stabler and 
Brobst and said association respecting the giving of said 
lands for factory purposes has been fully executed; that the 
company at no time, by resolution or otherwise, determined 
to discontinue the use of said premises for the purposes stated, 
and that the proceeds arising from the rents and profits of 
said cheese factory premises have been divided among the 
shareholders of said company; that at the time of the or- 
ganization of said company no agreement was entered into as 
to the length of time that said business enterprise should con- 
tinue, and that the business policy of the company has al- 
ways been determined by a majority vote of the stock of the 
company. 

As conclusions of law the court found that the agreement 
with Stabler and Brobst, in so far as it has been performed, 
is valid ; that the erection of the buildings referred to is such 
a performance of the agreement as to take the same out of the 
statute of frauds; that the plaintiffs and defendants are the 
owners of an estate upon condition subsequent of the prem- 
ises agreed to be given to said company, and that the parties 
to said association are entitled to the use of said premises so 
long as the same shall be used for cheese or butter making 
purposes, and that upon cessation of such use the same is to 
revert to the donors or their heirs ; that all of the buildings 
upon said premises are personal property, and that upon the 
reversion of said premises such buildings may be removed 
therefrom ; that the plaintiffs were not at the time of the com- 
mencement of this action and they are not at the present time 
the owners of such vested interests in the premises as to en- 
title them to partition of same; that said premises are not 
subject to partition and that the same will not be subject to par- 



1] JANUARY TERM, 1916. 299 

Brobst T. Marty, 162 Wis. 296. 

tition until after the cessation of the use of the same for cheese 
manufacturing or butter making purposes; that plaintiffs 
were not at the commencement of this action and they are not 
at the present time the owners of such vested interests in said 
buildings as to entitle them to partition of the same, and that 
said buildings will not be subject to partition until the re- 
version of said real estate upon the cessation of the use of 
same for the purposes of manufacturing cheese and butter. 
Upon these findings and conclusions judgment was entered 
dismissing the complaint 

The plaintiffs own fifteen of the twenty-seven so-called 
shares of stock and the defendants twelve of such shares. 
The donors of the real estate referred to are not parties to 
the action. Ko claim was made in the complaint by the 
plaintiffs to any interest in the real estate upon which the 
cheese factory was built, and the relief sought was for a par- 
tition of the factory building, or for sale thereof and a distri' 
bution of the proceeds in case partition could not be made 
without great prejudice to the owners, as well as for such 
other relief as might be agreeable to equity and good con- 
scienca 

For the appellants the cause was submitted on the brief of 
/. L. SherrofL 

E. D. McGowan, for the respondents. 

Babnes, J. On the findings of fact made the plaintiffs 
were entitled to judgment. The owners of fifteen of the 
twenty-seven so-called shares of stock are plaintiffs. Plaint- 
iffs also include four of the six owners of this stock. There 
was no agreement to continue the business for any specified 
length of time, and in fact it has been continued since 1898. 
No equitable consideration has been suggested which would 
justify the refusal of relief. The building cannot be parti- 
tioned and must therefore be sold. It does not follow that 
the purchaser will not continue to put it to the uses to which it 



300 SUPEEME COUET OF WISCONSIN. [Feb. 

BrobBt V. Marty, 162 Wis. 296. 

has been devoted in the past If there is any demand for 
such an establishment in the conmmnity, it is worth more 
for the use to which it has been put than it would be for pur- 
poses of removal. The plaintiffs and defendants are owners 
of the building as tenants in common. Higgins v. Riddell, 
12 Wis. 586. The proceeding is authorized under sec 
2327a^ Stats. A sale is authorized under sec 23276 where 
the property involved is not susceptible of division. 

The court found that under the parol agreement in refer- 
ence to the land such land was to revert to the owners when 
the building placed thereon was no longer used as a cheese 
factory. This finding is certainly sustained by the evidenca 
It may be that the association took possession of the land 
under a void contract and that such contract has been vali- 
dated by performance. If such is the case, the rights of the 
association must be measured by such contract. There is no 
showing whatever that the association in any manner se- 
cured any greater rights. 

Neither can it be held on the evidence that the building is 
a fixture which is the property of the owners of the land on 
which it stands and therefore no right of removal exists. 
While physical annexation is an important consideration in 
determining whether an article or building is a fixture, the 
intention of the parties is the controlling consideration in de- 
termining the question. Rinzel v. Stumpf, 116 Wis. 287, 
93 N. W. 36 ; E, M. Fish Co. v. Young, 127 Wis. 149, 106 
N. W. 795 ; Baringer v. Evenson, 127 Wis. 36, 106 N. W. 
801. Here the court found on sufficient evidence that there 
was no intention that the building should be regarded as a 
fixture. The building was in possession of the owners 
through their tenant, and the court properly held that under 
the facts it did not originally belong to the landowners nor 
revert to them thereafter. 

By the Court. — Judgment reversed, and cause remanded 
with directions to enter judgment as prayed for in the com- 
plaint. 



1] JANUARY TEEM, 1916. 301 



Schmidt v. Grenzow, 162 Wis. 301. 



Schmidt and another, Eespondents, vs. Gsenzow and others, 

imp.. Appellants. 

January 12 — Felyruary i, 1916. 

Mortgagei: Foreclosure: Deficiency judgment against heirs of mort- 
gagor: Contingent claim against decedent, 

JL A Judgment for deficiency in a foreclosure action cannot properly 
be entered against the heirs of a deceased mortgagor where 
complete administration of his estate has heen had and no 
claim was filed by the mortgagee in the administration proceed- 
ings. Pereles v. Leiser, 119 Wis. 347, followed; Pereles v. Lei- 
ser, 138 Wis. 401, distinguished. 

2. The sum secured by a mortgage being a fixed amount and due at 
a definite time in the future, the mere contingency as to whether 
or not there will be a deficiency after a foreclosure sale does not 
make the mortgagee's claim a contingent one, within the mean- 
ing of sec 3858, Stats. 

Appeal from a part of a judgment of the circuit court for 
Green county: Geoege Grimm, Circuit Judge. Reversed. 

Action to foreclose a real-estate mortgage of $6,000 secur- 
ing two notes of $5,000 and $1,000, each, executed by one 
E. O. Grenzow, since deceased. 

Administration on the estate of the mortgagor had been 
completed before this action was begun, and the sum of 
$1,762.27 out of his personal estate was assigned to each of 
the four appellants. At the time of administration the 
mortgage indebtedness was not due and plaintiffs filed no 
claim against the estate. The plaintiff Schmidt owns the 
note of $5,000 and the plaintiff Babler is the owner of the 
$1,000 note. The defendant Mary Legler is liable as an in- 
dorser of the $1,000 note and does not appeal. In the usual 
foreclosure judgment the court also ordered a judgment for 
a deficiency, if any should arise, against the four heirs to the 
extent of $1,762.27 each. From that part of the judgment 
they appeal. 

For the appellants there was a brief by Sprague & Jenks, 



302 SUPREME COURT OF WISCONSIif. [Feb. 

Schmidt V. Grenzow, 162 Wis. 301. 

attorneys for Louise Orenzow, and Burr Sprague, guardian 
ad litem lot Harry L, Orenzow, Orpha M. Orenzow, and 
Daisy B. Orenzow; and oral argument by Burr Sprague. 

For the respondents the cause was submitted on the brief 
of /. L. Sherron. 



ViNJB, J. This case presents the question whether a 
judgment for a deficiency in a foreclosure action can be prop- 
erly entered against the heirs of a deceased mortgagor where 
complete administration of his estate has been had and no 
claim has been filed by the mortgagee in the administration 
proceedings. The question was answered in the negative in 
Pereles v. Leiser, 119 Wis. 347, 96 N. W. 799. The only 
difference between that case and this is that there the in- 
debtedness was due at the time of administration and here it 
was not But a fixed amount due at a definite time in the 
future is not a contingent claim within the meaning of sec. 
3858, Stats. 1915. Hence, the only contingency in this case 
is whether or not there will be a deficiency after sale. That 
was the only contingency in the Pereles Case and it was ar- 
gued that such contingency made the claim a contingent one. 
But the court held that it did not. It is evident that the 
contingency of a deficiency is no greater where the note is not 
due than where it is due. 

If a mortgagee deems himself insecure he can file his claim 
against the estate. If he does not do so he must be held to 
rely solely upon the security. 

The case of Pereles v. Leiser, 138 Wis. 401, 120 K W. 
274, is relied upon as authority for the right to a deficiency 
judgment. In that case the judgment of the circuit court 
against the executor for a deficiency had to be treated as a 
valid judgment because unappealed from for two years, and 
it was held that the allowance of such valid judgment against 
the estate by the couuty court after the time for filing claims 
had expired was not error, as it was only another way of col- 



1] JANUARY TERM, 1916. 303 

Dean y. Dean, 162 Wis. 303. 

lecting the judgment The decision in Perele^ v. Leiser, 
119 Wis. 847, 96 N. W. 799, rules this case. 

By the Court. — That part of the judgment appealed from 
is reversed. 



DxAN and others, Appellants, vs. Dean, Respondent 

January 12—Fel>ruary 1, 1916, 

Evidence: Foreign Jaws: Pleading: Insurance: Benefit iocietiea: 
Change of beneficiaries: By-laws must he lolloped: Waiver J>y 
local officers: Neto hy-laws, when binding on member, 

1. The law of another state should be pleaded in order to make evi- 

dence thereof admissible. 

2. Subject to certain exceptions, a member of a fraternal order who 

wishes to change the beneficiary named in his certificate must 
do so in the manner prescribed by his certificate and the laws of 
the association. 
S. Officers of a local lodge, whose duties with regard to a change of 
beneficiaries are simply ministerial, cannot waive a require- 
ment of the laws of the association that a change must be outde 
by surrender of the certificate and issuance of a new one by the 
supreme secretary. 

4. Where a benefit certificate provides that the insured shall be 

bound by by-laws thereafter adopted, he will be so bound pro- 
vided the change made is simply a change in a matter of detail 
deemed necessary or advisable to carry out the fundamental 
principle or plan of insurance, and not a change in a substantial 
part of the plan itself or a nullification of any substantial part 
of the existing contract of insurance. 

5. A new by-law in such a case which made no change except to pro- 

vide that certain persons should be beneficiaries in case no bene- 
ficiary was named when the original beneficiary predeceased 
the insured, took away no right of the insured and was binding 
notwithstanding a prior ineffectual attempt of the Insured to 
designate a new beneficiary after the death of the one named in 
his certificate. 

Appeal from a judgment of the circuit court for Rock 
county : Gxoboe Gkimm, Circuit Judge. Reversed. 



304 SUPREME COURT OF WISCONSIN. L^'eb. 

Dean v. Dean, 162 Wis. 303. 

The action is brought by the plaintiffs, who are the chil- 
dren of Chauncey B. Dean, deceased, by his first marriage, 
to recover upon a benefit certificate for $2,000 issued Decem- 
ber 23, 1898, by the Mystic Workers of the World, a frater- 
nal order, on the life of said Chauncey B. Dean. The money 
having been brought into court by the order, Clara B. Dean, 
widow of the said Chauncey, was substituted as the defend- 
ant in the action and the action was tried by the court with- 
out a jury. 

The material facts were not in dispute and were as fol- 
lows: The certificate was issued to Chauncey B. Dean at 
Belvidere, Illinois, December 23, 1898, and provided that the 
insured was entitled "to participate in the beneficiary fund of 
the order in the manner and upon the conditions of the contract 
printed on the back hereof and of the constitution, by-laws, 
and rules of the order, in an amount not exceeding $2,000, 
which shall at death be paid to Frances K. Dean, bearing re- 
lationship to said member as wife.'' Sec. 40 of the by-laws 
of the order at that time provided that each person applying 
to become a benefit member of the order must, among other 
things, "conform to the requirements of the ritual and agree 
to abide by the laws of the order then or thereafter in force." 
Sec. 95 provided that the by-laws might be altered or amended 
at any regular session of the supreme lodge or special session 
called for that purpose under certain requirements with re- 
gard to notice to subordinate lodges. Sec. 79 provided that 
in case a member desired to make any change of beneficiary 
"he shall surrender his certificate with a statement thereon in 
writing stating the change he wishes made, and upon pay- 
ment of fifty cents to pay the expense the supreme secretary 
shall issue a new certificate as desired." Sec. 84 provided 
that no person connected with the order "is authorized to 
waive any of the provisions of these laws except the supreme 
master by his written dispensation." No provision was made 
in the constitution or by-laws with regard to the disposition 



Ij JAXUARY TERM, 1916. 305 

Dean v. Dean, 162 Wis. 303. 

of the death benefit in case of the death of the beneficiary be- 
fore the death of the insured, no new designation of bene- 
ficiaries having been made by the insured. Frances K. Dean 
died March 3, 1899, and Chauncey B. Dean married the de- 
fendant, Clara, prior to December 2, 1907. On the last 
named date Mr. Dean, who was a practicing lawyer in Bel- 
videre, himself wrote upon the certificate the following: 

"I, Chauncey B. Dean, to whom the within certificate was 
issued, do hereby revoke my former direction as to the pay- 
ment of the beneficiary fund due at my death, and now au- 
thorize and direct such payment to be made to my wife, Clara 
B, Dean, 

"Witness my hand and seal, this second day of December, 
1907. Chauncey B. Dean. (Seal.)" 

He then took the certificate to the secretary of the local 
lodge at Belvidere and showed him the revocation. The sec- 
retary told Mr. Dean that according to the constitution it 
would be necessary to surrender the old policy and have a 
new one issued by the supreme lodge, and that a fee of fifty 
cents was required. Mr. Dean, however, said in substance 
that he wished no mention of the matter to be made and no 
entry on the lodge books ; that he did not wish to surrender 
the certificate, he simply wanted. the secretary to sign as a 
witness and place the seal of the lodge upon it and that would 
answer his purposa Dean then signed the revocation, the 
secretary signed as a witness and placed thereon the lodge 
seal. Dean retained the certificate, and it was never surren- 
dered nor was any new certificate issued and no entry was 
made upon the lodge books. This constituted the entire trans- 
action. In June, 1912, the by-laws of the order were re- 
vised and a new by-law added to the effect that in case the 
beneficiary predeceased the insured and no other designation 
made, the benefit should be paid first to the widow or wid- 
ower, or, if none, to the children, and then in order to the 
mother if living, father if living, brothers and sisters if liv- 
VOL. 162 — 20 



306 SUPKEME COURT OF WISCONSIN. [Feb. 

Dean y. Dean, 162 WIb. 303. 

ing, and lastly to dependents, provided, however, that in case 
a widow or widower and children survive, the widow or 
widower not being the parent of the deceased member's chil- 
dren, then payment shall be made to the children. 

Dean died January 20, 1914, being at that time a member 
of the order in good standing and not having made any fur- 
ther attempt to change the beneficiary in the certificate* 
Upon the trial the statutes of Illinois relating to fraternal in- 
surance associations as well as a number of decisions of the 
supreme court of that state were offered and received in evi- 
dence. The trial court concluded that the attempted revoca- 
tion of the original beneficiary and the designation of Clara 
B, Dean as beneficiary was legally made; that the contract 
was an Illinois contract ; that the plaintiffs have no claim on 
the death benefit; that the amendment to the by-laws made 
in 1912 did not affect or become part of the contract; and 
that the defendant, Clara, was entitled to recover the full 
sum paid into court. From judgment in accordance with 
this finding the plaintiffs appeal. 

For the appellants there was a brief by Jeffris, Mouat, Oes- 
ireich & Avery, and oral argument by 0. A. Oestreich and 
3f. 0. Mouat. 

For the respondent there was a brief by William Biester 
and Oeo. 0. Sutherland, and oral argument by Mr. Suther- 
land. 

WiNSLOw, C. J. The contract was an Illinois contract 
and controlled by Illinois law. Testimony was received 
against objection showing what the law of Illinois was regard- 
ing the effect of a change in the by-laws upon such contracts, 
although the Illinois law had not been pleaded. Strictly 
speaking, foreign law should doubtless be pleaded before evi- 
dence thereof is admissible. White v. M,, St. P. & S. S. M. 
R. Co. 147 Wis. 141, 133 N. W. 148 ; Elmergreen v. Weimer, 
138 Wis. 112, 119 K W. 836. The question is of no mo- 



1] JANUARY TERM, 1916. 307 

Dean y. Dean, 162 Wis. 303. 

ment here, however. The law of Illinois is substantially the 
«aine as the law of Wisconsin so far as the issues involved in 
this case are concerned. 

There are manifestly two questions in the case: (1) Was 
the attempted revocation and designation of a new beneficiary 
valid ? and (2) Does the new by*law passed in 1912 affect the 
rights of the parties ? 

1. It is settled by a long and consistent line of decisions in 
this state that a member of a fraternal order who wishes to 
change the beneficiary named in his certificate must do so in 
the manner prescribed by his certificate and the laws of the 
association with three exceptions, none of which are appli- 
cable here. The subject is so fully discussed in the case of 
McGowan v. Supreme Court I. 0. F. 104 Wis. 173, 80 N*. 
W. 603, and the later case of Faubel v. Eckhart, 151 Wis. 
155, 138 IS. W. 615, that it seems unnecessary to enlarge 
upon it here. See, also, Bacon, Ben. Soc. §§ 307, 308; De- 
laney v. Delaney, 175 III 187, 198, 51 X. E. 961. 

Admittedly there was no compliance with the laws of the 
association here, nor was a substantial compliance even at- 
tempted, hence there was no change of beneficiaries, unless 
compliance with the requirements of the laws was waived. 
That there was no waiver is clear. Sec. 84 of the laws pro- 
vides that no person is authorized to waive any requirements 
of the laws except the supreme master by written dispensa- 
tion. But there would be no waiver even in the absence of 
this provision. The duties of the officers of the local lodge 
with regard to the change of beneficiaries are simply minis- 
terial: the change must be made and the new certificate is- 
sued by the officers of the supreme lodge alone. To hold that 
officers who cannot by the most solemn writing make a valid 
change can do so by mere silence would be little short of ab- 
surd. Orand Lodge A, 0. U, W. v, Connolly, 58 N. J. Eq. 
180, 43 Atl. 286. 

2. It is settled in this state that where the benefit certifi- 



308 SUPEEME COUKT OF WISCONSIN. [Feb. 



Dean v. Dean, 162 Wis. 303. 



cate provides that the insured shall be bound by by-laws there- 
after adopted he will be so bound provided the change made 
is simply a change in a matter of detail deemed necessary or 
advisable to carry out the fundamental principle or plan of 
insurance, and not a change in a substantial part of the plan 
itself or a nullification of any substantial part of llie existing 
contract of insurance. Curtis v. Modem Woodmen, 15^ 
Wis. 303, 150 N. W. 417, and cases cited. The Illinois de- 
cisions go even further and hold that the power of appoint- 
ment of a beneficiary may be divested by subsequent changes 
in the laws of the order if the certificate provides that the 
rights of the insured shall be subject to such future changes. 
Baldwin v. Becjley, 185 111. 180, 56 N. E. 1065; Peterson 
V. Gibson, 191 111. 365, 61 N. E. 127. 

In the present case the benefit certificate was conditioned, 
in eifect, that the member should abide by the laws of the 
order then or thereafter in force. The new law of 1912 did 
not take away a single contract right possessed by the in- 
sured. He could control the policy and change the benefi- 
ciary with the same freedom as before. The only change in 
the situation was that certain persons were made beneficiaries 
in case no new beneficiary was named when the original bene- 
ficiary predeceased the insured. This took away no right 
from the member, but simply prevented a lapse in case of hi& 
neglect. 

By the Court, — Judgment reversed, and action remanded 
with directions to render judgment for the plaintiffs in ac- 
cordance with the opinion. 



IJ JANUAEY TERM, 1916. 30(> 



Rhein v. Burns, 162 Wis. 309. 



Rheik, Appellant, vs. Burns and another, Respondents. 

January 12 — Fel)ruary 1, 1916, 

Contracts: Construction: Ambiguity: Sale or contract for work: Ac-- 
ceptance: Queatiom for jury: Special verdict: Omissions: Find- 
ing by court, when presumed: Instructions to jury: Damages: 
Remission of part: Appeal: Disposition of case, 

1. Whether the contract under which plaintiff made for defendants 

a "winding machine" for absorbent cotton and which, it waa 
conceded, called for a weigher device as well as a winding de- 
vice, called also for a header device (which plaintiff in fact fur- 
nished) as a constituent part of the machine, is held upon con- 
flicting evidence to have been a question for the Jury. 

2. In an action for a balance due on such contract, defendants hav- 

ing counterclaimed for damages, and the court having charged 
the jury that if they answered "no" to a question as to whether 
the machine satisfied the guaranty in the contract they need 
not answer a question as to whether there was a breach by 
plaintiff of the contract in respect to furnishing information as 
to putting up and packing the absorbent cotton. It was error to 
Instruct the jury that if they answered either of those questions 
in favor of defendants they should include in their assessment 
of damages, in addition to the down payment of $100 made by 
defendants, all loss which defendants sustained as a proximate 
result of plaintiff's failure to comply with either or both of 
said provisions of the contract. 

3. The Jury having acted in accordance with such instruction and 

made no answer to the second question, and it being Impossible 
to determine how much of the damages assessed was for the 
breach covered by the unanswered question, the judgment for 
defendants is reversed unless they elect to take judgment for 
$100 only, the amount which they had paid on the contract. 

4. The contract, by which plaintiff guaranteed "to make a machine 

that will wind absorbent cotton in a satisfactory manner," etc., 
was a contract for doing the work of making the machine, not 
for the sale and delivery of property. 
6. No request having been made for submission of a question as to 
whether defendants accepted the machine as satisfying the 
guaranty, and there being evidence which would reasonably 
support a finding that they had not, the trial court must be 
presumed to have determined that question in favor of defend- 
ants, for whom judgment was rendered on their counterclaim. 



510 SUPREME COURT OF WISCONSIN. [Feb. 

Rhein y. Burns, 162 Wis. 309. 



Appeal from a judgment of the circuit court for Rock 
county: Geobge Grimat^ Circuit Judge. Reversed, 

Action to recover on contract. Plaintiff claimed a bal- 
ance due of $200 for installing a winding machine in the 
JanesvUle Batting Mills, for putting up for the trade absorb- 
ent cotton. Defendants defended upon the ground of breach 
of contract and counterclaimed on such ground for damages. 

As a result of some negotiations between defendant Bums 
and plaintiff regarding the installation of a winding machine 
in the mill of the defendant JanesvUle Batting Mills a writ- 
ten contract was made as follows : 

"Contract made between /. A. Rhein of Chicago and T. P. 
Bums of Janesville, Februai'y 3, 1912. This is to certify 
that I guarantee to make a machine that will wind absorbent 
cotton in a satisfactory manner for the trade generally and to 
give all the information about putting up the same, papering, 
boxing, and packing it for the sum of three hundred ($300) 
dollars, one hundred ($100) down and one hundred ($100) 
dollars in thirty days after we get the same to work satisfac- 
tory and the other one hundred ($100) dollars in sixty days 
after we get the same to work satisfactory. 

"J. A. Rhein. 

"T. P. Burns." 

The down payment was made and plaintiff constructed a 
machine consisting of a weigher device, a header device, and 
a winding device, and the same was put in operation. There 
was evidence tending to prove that the machine called for by 
the contract required the three features, and evidence tending 
to prove that it required only the weighing and winding de- 
vice. Plaintiff conceded that he was bound by the contract 
as to the last two features, but not as to the header device. 
There was evidence tending to prove that the guaranty con- 
tained in the contract was not satisfied and that the machine 
was not accepted by defendants. There was also evidence 
tending to prove that there was a breach of the contract as re- 
gards giving defendants all the information necessary about 



1] JANUARY TERM, 1916. 311 

Rhein v. Burns, 162 Wis. 309. 

putting up absorbent cotton, papering, boxing, and packing 
the cotton in a manner satisfactory to the general trade, and 
evidence as to damages in respect to both matters. There 
was also evidence tending to prove the contrary of both of de- 
fendants' claims. 

The court submitted the cause to the jury for a special ver- 
dict, instructing that the first question, covering the subject 
of whether the machine satisfied the guaranty, should be an- 
swered, taking into consideration the evidence in respect to 
whether the header device was a constituent part of the ma- 
chine contracted for, that if they answered the first question 
in favor of the defendants, not to answer the second, covering 
the subject of breach of that part of the contract in regard to 
instructions, and if they answered either the first or second 
question in favor of the defendants, they should answer the 
third question, covering the subject of damages, and to in- 
clude, in addition to the $100 paid on the contract, all loss 
which defendants sustained as a proximate result of the fail- 
ure to comply with either or both of the provisions of the con- 
tract, to the extent such loss could not have been avoided by 
the exercise of ordinary care and business prudence on the 
part of the defendants. In response thereto, the jury found 
that plaintiff did not make for defendants a machine that 
would wind absorbent cotton in a satisfactory manner for the 
trade, left the question as to breach of the contract respecting 
furnishing information for putting up absorbent cotton and 
papering, boxing, and packing it, unanswered, and assessed 
the defendants' damages at $300. 

There was a motion for a new trial on behalf of plaintiff, 
made and denied, and exceptions taken to each denial and to 
some features of the instructions, and in respect to other mat- 
ters which, so far as necessary, will be referred to in the opin- 
ion. 

Judgment was rendered in favor of the defendants on the 
verdict and plaintiff appealed. 



312 SUPREME COUET OF WISCONSIN. [Feb. 

Rhein v. Burns. 162 Wis. 309. 

For the appellant there was a brief by Richardson & Dun- 
widdie, and oral argument by 3f . P, Richardson. 

For the respondents there was a brief by /. /. Cunningham, 
attorney, and Geo. (?. Sutherland, of counsel, and oral argu- 
ment by Mr. Sutherland. 

Marshall, J. The court instructed the jury in respect 
to the question as to whether plaintiff made for defendants a 
machine that would wind absorbent cotton in a satisfactory 
manner for the general trade, that they should determine 
from the evidence whether the machine agreed upon included 
a header device as a constituent part of it, and answer the 
question in view of their determination in that respect. 

It is contended that the instruction referred to was errone- 
ous as there was no evidence that the contract called for a ma- 
chine including a header device. True the direct evidence 
was substantially as counsel for appellant claims, yet there 
was no controversy but what the winding machine mentioned 
in the agreement was not a mere winding device. It was 
conceded, on the trial, that the machine included a weigh 'ir 
device, and there was ample evidence showing that the header 
device, weigher device, and winding device were essential 
features of a complete machine for doing the work contem- 
plated, and that plaintiif set up the machine with such three 
features as if the contract covered each as a constituent part 
of the entirety, denominated a winding machine. The term 
"winding machine" appears clearly ambiguous when it is con- 
ceded that it is more than a mere winding device. Upon the 
evidence, direct and circumstantial, it is considered that 
the trial court did not err in giving the instructions com- 
plained of. 

It is further contended that the court erred in instructing 
the jury that in ease of their finding the contract was 
breached, either in respect to making the machine agreed 
upon or in respect to giving information about putting up ab- 



IJ JANUARY TERM, 1916. 315 



Rhein y. Burns, 162 Wis. 309. 



sorbeBt cotton in a manner satisfactory to the trade, to in- 
clude, in answering the question covering the subject of dam- 
ages, the down payment of $100 with interest and "all loss 
which the defendants sustained as a proximate result of the 
plaintiff's failure to comply with either or both of the pro- 
visions of the contract embraced in the first and second ques- 
tions, to the extent to which such loss could not have been 
avoided by the exercise of ordinary care and business pru- 
dence on the part of the defendants." 

As indicated in the statement, the court instructed the jury 
not to make any answer to the question covering the subject 
of whether plaintiflP breached the contract respecting furnish- 
ing information, in case of their finding that it was breached 
in respect to making the machine so as to satisfy the guar- 
anty, and that no answer was given to the second question. 

We are unable to understand why the jury were instructed 
to assess damages for breaching the contract as to both fea- 
tures in case of their finding there was a breach as to one. 
It seems there was a plain error at this point, as counsel for 
appellant contend, and that it is impossible to determine 
how much of the $300 of damages found was attributed by 
the jury to the feature covered by the unanswered question. 

It is further contended that the court erred in not ordering 
judgment in plaintifiF's favor upon the ground that defend- 
ants accepted the machine by using it and by failing to give 
notice within a reasonable time of its rejection as not satisfy- 
ing the guaranty. Such contention and others are grounded 
on the theory that there was a sale and delivery of property 
which is not the casa The contract was for doing the work 
of making a machine for respondents, not for the sale and de- 
livery of property within the rule applied in Oscar Smith & 
Sons Co. V. Janesville Batting Mills, 150 Wis. 528, 137 N. 
W. 966, cited to our attention, or the rule of the Uniform 
Sales statutes. 

The trial court was not requested to submit a question to 



314 SUPKEME COURT OF WISCONSIN. [Feb. 

Rhein v. Burns, 162 Wis. 309. . 

the jury on the subject of whether respondents accepted the 
machine as satisfying the guaranty^ and so the court must be 
presumed to have determined it, so far as it was a contro- 
verted matter of fact, with all the effect of a jury finding. 
If there was any evidence which in any reasonable view will 
support it, that is sufficient. As we read the record, there is 
such evidence and we will rest the matter without extending 
the opinion by quoting the same. It may be, as contended, 
that the evidence of Bums, who testified on the subject on be- 
half of respondents, is somewhat contradictory and that the 
more consistent evidence was given by plaintiff, and that the 
circumstances rather corroborate the latter, as contended by 
counsel for appellant, yet we cannot say that there is no be- 
lievable evidence showing that respondents never accepted the 
machine as satisfying the guaranty. 

What has been said seems to cover all matters presented 
which merit special attention. As we view the case there 
was no definite evidence of damages for breach of the guar- 
anty, as to the machine, except that relating to the payment 
on the contract of $100. The court might have given re- 
spondents an option to take judgment for that amount, thus 
curing the error of directing the jury to assess damages for 
the fault covered by the unanswered question. We have con- 
cluded to reverse the judgment and remand the cause for a 
new trial, unless respondents elect in writing filed with the 
clerk of the trial court within twenty days after the filing of 
the remittitur with such clerk, to take judgment for $100 
with interest thereon from the 3d day of February, 1912, 
and costs. 

By the Court. — So ordered. 



1] JANUARY TERM, 1916. 315 



Hiltgen v. Biever, 162 Wis. 315. 



HiLTOEN, Appellant, vs. Bieveb, Respondent 

• January IS— February i, 1916. 

Bale an trial: Retention and use: Acceptance, 

Where gang plows were sold on trial, the purchaser to have a rea- 
sonable time to test them and determine whether they were 
suitable, and he plowed with them all his own land, one hundred 
acres, and ninety-two acres for other persons, using the plows 
for more than twenty days, when one day would have been suf- 
ficient for a test, he must be held to have accepted the plows 
and to be liable for the purchase price. 

Appeal from a judgment of the circuit court for Ozaukee 
county: Maktiit L. Lueok, Circuit Judge. Reversed. 

This action was brought to recover the purchase price of 
certain twelve-inch gang plows and extra equipment at an 
agreed price of $575. The defendant in his amended an- 
swer admits the sale and selling price, but alleges that the 
plaintiff, instead of delivering twelve-inch plows, delivered 
fourteen-inch plows, and further set up the plaintiff's knowl- 
edge that defendant intended to use said plows in the state of 
Montana, and when defendant discovered that said imple- 
ments were not of the kind he had ordered he informed the 
plaintiff of the fact, and plaintiff agreed that if defendant 
could not use them in the operation of his farm and in prop- 
erly plowing his land defendant would not be obliged to pay 
for them. The answer further alleges that the defendant 
was unable to make much, if any, use of said plows on ac- 
count of their extra width, and it was impossible for him to 
plow the land as he could have done had he received the plows 
agreed upon ; that his engine purchased from the plaintiff at 
the same time he purchased the plows did not have sufGcient 
power to operate said plows ; that owing to the lateness of the 
season and the distance from market defendant was obliged 
to make use of the plows in plowing his land in said state of 



316 SUPREME COUET OF WISCONSIN. IFeb. 

Hlltgen V. Biever, 162 Wis. 315. 

llontana; that defendant has never accepted said plows and 
refuses now to accept the same. The answer also sets up 
several counterclaims. 

The following is the portion of the special Verdict material 
upon this appeal : 

^^(1) Did the defendant, Peter C. Biever, on the occasion 
when the parties met at the car in Milwaukee, accept the 
gang plows, then on the car, in satisfaction of the terms of the 
written order signed by him on January 3, 1911 ? A. No. 

"(2) If you answer the first question *No,' then answer 
this question : Did the plaintiff, on the occasion when the par- 
ties met at the car in Milwaukee, agree that the defendant 
might take said gang plows to Montana and if he could not 
use them for plowing land he would not be obliged to pay for 
them? A, Yes. 

"(5) Were the seven extra stubble bottom shears deliv- 
ered on the car at Milwaukee ready for shipment to Montana ? 
A. No." 

After verdict the plaintiff moved to change the answer 
to the first question from ^'No" to "Yes" and to strike out the 
answer to the second question, and that if such motion be de- 
nied the plaintiff be permitted to amend his complaint by in- 
serting the following: 

"That thereafter and on or about the month of February 
or March, 1911, the said defendant shipped said goods, wares, 
and merchandise, being said gang plows and appurtenances 
above described, to the state of Montana, and that he in said 
state, during the spring and summer of the year 1911, used 
the gang plows and appurtenances for plowing all of his land 
in said state and the land of other persons, that said gang 
plows could be used by defendant and were used by him in 
plowing said lands aforesaid, and worked satisfactorily and 
to the satisfaction of the defendant, and the defendant then 
and there accepted said goods, wares, and merchandise, to 
wit,' said gang plows and their appurtenances as above de- 
scribed, as and for said goods, wares, and merchandise so 
sold as aforesaid, and for judgment in favor of the plaintiff 
as prayed for in his complaint." 



IJ JANUARY TERM, 1910. 317 



Hiltgen v. Biever, 162 Wis. 315. 



Plaintiff also moved to set the verdict aside and for new 
trial. The court denied all motions made by plaintiff and 
ordered judgment in favor of the defendant dismissing the 
complaint with costs. Judgment was entered accordingly, 
from which this appeal was taken. 

Chas, J. Kunny, for the appellant. 

For the respondent the cause was submitted on the brief 
of William F. Schanen, attorney, and James D» Shaw, of 
counsel. 

Keewin, J. The contract made by the parties as found 
by the second question and answer of the special verdict 
amounted to a sale on trial. Under it the defendant was to 
have a reasonable time, under all the circumstances of the 
case, to try the plows. It is very clear from the undisputed 
evidence that the defendant accepted the plows. The evi- 
-dence is undisputed that he not only plowed all his own land, 
100 acres, but plowed ninety-two acres for other persons. 
He used the plows twenty-two or twenty-three days. There 
is no evidence that it was necessary to use the plows any con- 
siderable time in order to determine whether they would do 
good work. Obviously a day or less would have been suffi- 
cient to test the plows and determine whether they were suit- 
able. 

Under such circumstances it must be held that the defend- 
ant accepted the plows as a compliance with the terms of 
sale and is liable for the purchase price. Fox v. Wilkinson, 
133 Wis. 337, 113 N. W. 669 ; Kelsey v. J. W. Ringrose N. 
Co. 152 Wis. 499, 140 K W. Q(^] Estey 0. Co. v. Lehman, 
132 Wis. 144, 111 N. W. 1097. 

There is no evidence that the plows were of less value than 
the purchase price. The complaint was that they were 
larger, fourteen-inch plows, while the contract called for 
twelve-inch plows. All the counterclaims for damages 
pleaded, except the claim for seven extra stubble bottom 



318 SUPREME COURT OF WISCONSIN. [Feb. 

Jacobs y. Wisconsin Nat. L. Ins. Co. 162 Wis. 318. 

shearB, were decided against the defendant and no appeal 
taken bv him. The evidence tends to show that the seven 
shears were worth $21. This sum, therefore, should be de- 
ducted from the purchase price of the goods sold, viz. $575, 
and judgment rendered for the balance. 

By the Court, — The judgment of the court below is re- 
versed, and the cause remanded with directions to enter judg- 
ment for the plaintiff for $554 with interest and costs. 



Jacobs, Respondent, vs. Wisconsin IsTational Life Inbub- 

ANCE Company, Appellant 

January 13 — February 1, 1916, 

Contract i: Validity: Corporations: Powers: Life insurance companies: 
Bale of **proflt-sharing honds.-** Consideration: Rescission by 
purchaser. 

1. A contract is not to be condemned merely because it is ingenious, 

nor unless it contravenes some rule of positive law or conflicts 
with public policy. 

2. All stock corporations, when not expressly or by implication for- 

bidden to do so, have by necessary inference general power to 
make contracts furthering the objects of their creation. 

3. The issuance and sale by a domestic life insurance company of a 

limited number of "profit-sharing bonds/' wherein the company 
agreed to set apart annually from its earnings and place in a 
special fund one dollar for each thousand dollars of insurance 
outstanding and in force, and to divide the fund annually among 
the purchasers of the bonds for thirty years, — such fund to be 
taken only from the expense charges collected as part of the an- 
nual premiums paid to the company for insurance; the proceeds 
of the sales of the bonds to be used for the promotion of the 
company's business of life insurance; and the company assum- 
ing no other liability or obligation upon the bonds, — ^was with- 
in the general power of the corporation to make contracts; and 
there being nothing therein contrary to any statute or to public 
policy, such bonds are valid. 

4. The mere fact that such bonds are a speculative investment for 

the purchaser does not render them invalid. 



1] JANUARY TERM, 1916. 319 

*- I I ^m^mmm^m _j IJ—JJ - 

Jacobs Y. Wisconsin Nat. L. Ins. Co. 162 Wis. 318. 

6. Such bonds being valid, a purchaser thereof received a legal con- 
sideration for his money and, in the absence of fraud or mis- 
take, cannot enforce a rescission of the contract or a return of 
his money. 

Appeal from a judgment of the circuit court for Dodge 
county: Martin L. Lueck, Circuit Judge. Reversed. 

For the appellant there was a brief by Weed & Uollister, 
and oral argument by H. L Weed. 

Charles D. Smith, for the respondent. 

Timlin, J. The defendant is a life insurance company 
organized under ch. 89, Wisconsin Statutes. The articles of 
incorporation provided that the business of the corporation 
^ould be (1) to make insurance upon the lives of individ- 
uals, and every insurance appertaining thereto or connected 
therewith; (2) to grant, purchase, and dispose of annuities; 
(3) to insure persons against physical disability or death 
caused by accident or disease and to issue such contracts 
either independently or in conjunction with life risks; (4) to 
invest and reinvest the funds of the corporation, purchase 
and hold real estate for the use and convenient transaction of 
its business; and (5) to enjoy all the powers, privileges, and 
rights conferred upon domestic life insurance companies and 
be subject to all the restrictions, regulations, and obligations 
imposed upon such companies by the laws of the state of Wis- 
consin. The capital stock was fixed at $100,000, divided 
into 1,000 shares of $100 each. Contracts of insurance 
granted by the defendant were to be issued upon the plan of 
nonparticipation in profits with or without premium reduc- 
tions, the insurance was to be upon the legal reserve basis, 
-and the reserve required by the tables of mortality approved 
for that purpose was to be maintained so as to guarantee the 
policies at maturity. 

Defendant issued what is called a profit-sharing bond, 
-which was in substance a contract to set apart annually from 



320 SUPREME COUKT OF WISCOKSIX. [Feb. 

Jacobs V. Wisconsin Nat. L. Ins. Co. 162 Wis. 318. 

the earnings of the company and place in a special fund a 
sum of money equal to one dollar for each one thousand dol- 
lars' worth of insurance outstanding and in force. A number 
of profit-sharing bonds were issued and sold for a present 
cash payment of $150 each. The number of these bonds to 
be issued was limited to 2,000. The proceeds of these sales 
were to be used for the promotion of defendant's business of 
life insurance in the several states, territories, and countries 
to which the company might be admitted. The purchaser in 
accepting the bond did so with the express understanding and 
agreement that the company assumed no liability or obliga- 
tion other than the duty to set apart annually one dollar for 
each thousand dollars of insurance outstanding and in force 
and to divide this annually among the purchasers of these 
bonds for a period of thirty years. The fund to be so raised 
and divided was to be taken exclusively and only from the 
expense charges levied and collected with and as a part of the 
annual premiums paid to the company for insurance. It is 
apparent that this is a device to raise money for the promo- 
tion and extension of defendant's legitimate business ; that it 
in no way affects the ability of the defendant to respond for 
death losses or impairs the legal reserve required. At the 
same time it is apparent that it is a very speculative invest- 
ment on the part of the purchaser of the bond. He may in 
thirty years receive many times the amount paid for the bond 
or he may receive little or nothing. 

In this action to recover back the amount paid for four of 
these bonds the learned circuit judge directed judgment for 
the plaintiff apparently on the ground that the bonds were 
void, consequently the plaintiff received nothing for his 
money. ' The conclusion of law covering this decision of the 
circuit court is as follows : "that said so-called ^profit-sharing 
bonds' are void for want of authority in the defendant life 
insurance company to issue and sell the same." We are re- 
ferred to no statute which forbids, either expressly or by im- 



1] JANUARY TERM, 1916. 321 

Jacobs v. Wisconsin Nat. L. Ins. Co. 1G2 Wis. 318. 

plication, the making of Buck contract hj a corporation like 
defendant. On the contrary we have in this state sec 1947, 
sub. 4, making the provisions of ch. 86 of the Statutes appli- 
cable to insurance companies. Ch. 86 relates to the organiza* 
tion, powers, and dissolution of corporations generally. We 
also have in ch. 85 general powers conferred upon every cor- 
poration to make all contracts necessary and proper to effect 
its purposes and conduct its business. This last chapter also 
confers on each corporation of this state power "to mortgage 
its revenues to secure the payment of its debts or to borrow 
money for the purposes of the corporation." The only 
groujid assigned for holding the so-called income bond void is 
the speculative character of the investment therein. This 
affects only the obligee in the bond. It is not speculative but 
quite certain as regards the obligor insurance company. The 
transaction amounts to this: the insurance company, instead 
of waiting for profits to accumulate and using these profits to 
promote and advance its insurance business, makes a contract 
whereby these anticipated profits are sold as above indicated 
and thereby money is at once and in the early years of the 
insurance company available with which to advance its in- 
surance business, the purchaser of the bond taking his chances 
of reimbursement out of profits created or aided by his own 
money and the insurance company assuming no other obliga- 
tion than that of setting apart annually for a limited period 
from the annual premiums collected for life insurance one 
dollar for each thousand dollars of life insurance outstanding 
and in force. A contract is not to be condemned merely be- 
cause it is ingenious. Oovisr v. Brechler, 159 Wis. 157, 
161, 149 N. W. 740. ITor unless it contravenes some rule of 
positive law or conflicts with public policy. Shepard v, 
Pabst, 149 Wis. 35, 45, 135 N. W. 158. All stock corpora- 
tions, when not expressly or by implication forbidden to do 
so, have general power to make contracts furthering the ob- 
jects of their creation. This authority exists by necessary 
Vol. 162 — 21 



322 SUPREME COURT OF WISCONSIN. [Feb. 

Wegener v. Chicago & N. W. R. Co. 162 Wis. 322. 

inference from the general powers conferred on the corpora- 
tion to do business. Blunt v. Walker, 11 Wis. 334; Clark 
V. Farrington, 11 Wis. 306; Winterfield v. Cream City B. 
Co. 96 Wis. 239, 71 K W. 101 ; Eastman v. Parkinson, 133 
Wis. 375, 113 N. W. 649. 

We discover nothing in the contract here in question con- 
travening any statute, conflicting with the objects or purposes 
of the corporation, or offending against public policy, and 
therefore the bond must be held to be valid. If the bond is 
valid the plaintiff received a legal consideration for his 
money, and, no fraud or mistake being proven, he cannot en- 
force a rescission of the contract or a return of his money. 
It follows that the judgment of the circuit court must be re- 
versed, and the cause remanded with directions to dismiss the 
complaint 

By the Court, — Judgment reversed, with directions to dis- 
miss the complaint. 



Wegbnee, Respondent, vs. Chicago & Northwestern 
Railway Company, Appellant. 

January IS — February 1, 1916, 

Carriers: Loss of goods in transit: Evidence: Tariffs and hill of tod- 
ing: Pleading: Contract as to measure of damages, 

1. In an action to recover damages for delay and loss In a shipment 

of poultry, where the answer aUeged that the shipment was 
made pursuant to the law, the published tariffs of defendant, 
and particularly a bill of lading of which a copy is annexed, 
"all of the various covenants, agreements, and conditions of 
which bill of lading the defendant hereby pleads as a part of the 
answer herein," such tariffs and bill of lading were sufficiently 
pleaded and it was error to exclude them when offered in evi- 
dence. 

2. Such tariffs and bill of lading constituted the contract of ship- 

ment, and a stipulation therein that the amount of any loss or 



1] JANUARY TEEM, 1916. 323 

Wegener v. Chicago & N. W. R. Co. 162 Wis. 322. 

damage for which the carrier was liable should be computed on 
the basis of the value of the property at the place and time of 
shipment, was valid and binding upon the shipper. 
3. A finding that the loss of a part of a shipment of poultry between 
the place of shipment in Wisconsin and the warehouse of the 
consignee in New York, where the goods were first checked up, 
occurred in the railway transit, is held to be sustained by the 
evidence, although the consignee receipted (as he said was cus- 
tonutry) for the goods without notation of loss and they were 
hauled on auto trucks about a mile from the freight depot to the 
warehouse. 

Appkat. from a judgment of the county court of Dodge 
county : C. W. Lamobbux, Judge. Modified and affirmed. 

Action to recover damages for delay in the shipment of 
poultry and for loss of part thereof. 

On November 17, 1912, plaintiff delivered to the defend- 
ant at Minnesota Junction, Wisconsin, forty-eight barrels 
and fifty-two boxes of dressed poultry for shipment to New 
York. The jury found that owing to the negligence of the 
defendant a part of the shipment was lost in transit and the 
balance was damaged ; and they assessed plaintiff's damages 
in the sum of $856.91. From a judgment in said amount 
with costs entered in favor of the plaintiff the defendant ap- 
pealed. 

For the appellant there were briefs by Edward M. Smart, 
attorney, and Charles H, Gorman, of counsel, and oral argu- 
ment by Mr. Oorman. 

AugiLst Eading^ for the respondent. 

ViNJE, J. The shipment was made under a bill of lading 
and tariffs approved by the interstate commerce commission. 
The defendant sought to introduce both the bill of lading 
and the tariffs in evidence to show under what terms and con- 
ditions the shipment was made, but they were excluded, ex- 
cept that the bill of lading was admitted for the sole purpose 
of showing that defendant had received the shipment. The 



324 SUPKEME COURT OF WISCONSIN. [Fbb. 

Wegener v. Chicago & N. W. R. Co. 162 Wis. 322. 

ground for their exclusion does not appear. It is now 
claimed that they were not properly pleaded. The answer 
^'alleges that said shipment was made under and pursuant to 
the law in such cases made and provided, the public and pub- 
lished tariffs of defendant, and particularly a bill of lading, 
a true and correct copy of which is hereunto annexed marked 
Exhibit *A,* all of the various covenants, agreements, and con- 
ditions of which bill of lading the defendant hereby pleads as 
a part of the answer herein.*' This sufficiently pleads the 
tariffs and the bill of lading and it was error to exclude them. 

The court instructed the jury that the measure of damages 
for the lost poultry was the market value of the same at the 
time and place of destination ; and that the measure of dam- 
ages for the damaged poultry was the difference between the 
market value of the poultry at the time and place of destina- 
tion in the condition in which it would have arrived, if prop- 
erly handled and transported, and the market value at the 
time and place of destination in the condition in which it did 
arrive, and the jury assessed the damages at $856.91. 

The bill of lading contained this provision : 

"The amount of any loss or damage for which any carrier 
is liable shall be computed on the basis of the value of the 
property (being the bona fide invoice price, if any, to the 
consignee including the freight charges, if prepaid) at the 
place and time of shipment under this bill of lading, unless a 
lower value has been represented in writing by the shipper 
or has been agreed upon or is determined by the classifica- 
tion or tariffs, upon which the rate is based, in any of which 
ovents such lower value shall be the maximum amount to gov- 
ern such computation, whether or not such loss or damage oc- 
curs from negligence." 

The bill of lading and the tariffs constituted the contract 
of shipment, and defendant claims that under it the market 
value at the place of shipment, plus freight, drayage, and 
commissions, and not the market value at the place of desti- 
nation, measured the damages. This is correct Such stipu- 



1] JANUARY TERM, 1916. • 325 

Wegener y. Chicago A N. W. R. Co. 162 Wis. 322. 

lations as to measure of damages, or other reasonable condi- 
tions touching the shipment, are valid and binding upon the 
shipper. Ullman v. C. <& N. W. R. Co. 112 Wis. 150, 88 N. 
W. 41 ; Waiard v. C. £ N. W. R. Co. 150 Wis. 234, 186 N. W. 
646; Cohen v. M., St. P. & 8. 8. M. R. Co., ante, p. 73, 155 
N. W. 945 ; Inman & Co. v. Seaboard A. L. R. Go. 159 Fed. 
960 ; Davis v. N. Y., 0. & W. R. Co. 70 Minn. 37, 72 N. W. 
823; 4 Ruling Case Law, 930. The evidence shows that 
after crediting plaintiff with freight, drayage, and commis- 
sions at New York, the market value of the poultry at the 
place of shipment, including the lost poultry, was $318.46 
less than its market value at the place of destination as found 
by the jury. If, therefore, defendant is liable for the poul- 
try lost, the judgment should be reduced $318.46, and if not, 
it should be reduced $392.71, the value of the lost poultry 
being $74.25. 

It appears that one barrel of poultry and a part of an- 
other were lost between the place of shipment and thp ware- 
house of the consignee where the goods were first checked up 
in New York. They were hauled on auto trucks about a 
mile from the freight depot to the warehouse, and the argu- 
ment is that the loss may as well have occurred in that haul 
as while in the possession of a rail carrier. The consignee 
receipted for the goods without any notation of loss, but he 
says that it is customary to so receipt even if there is a known 
loss. The jury found that the poultry was lost while in rail- 
way transit We think there are legitimate inferences to 
sustain such a finding. 

By the Court. — Judgment modified by deducting there- 
from, as of its date, the sum of $318.46, and as so modified 
affirmed, with costs to the defendant 



326 SUPREME COURT OF WISCONSIN. [Feb. 



Meidenbauer y. Pewaukee, 162 Wis. 326. 



Meidenbaubb, Respondent, vs. Town of Pewaukee, Ap- 
pellant. 

January IS — Fehruary J, 1916, 

Highu>ay8: Injury from defect or insufficiency: Liahility of town: En- 
gine standing in highway: Unguarded quarry hole: Notice of 
defects: Contri2)utory negligence: Shying of horse: Momentary 
loss of control: Proscimate cause: 8pecia\verdict : Form of ques- 
tions. 

1. While being driven along a highway near which and within the 

limits of an intersecting highway a locomotive engine had been 
left standing, plaintiff's horse became frightened at the engine 
and shied toward an unguarded quarry excavation which ej^- 
tended into the highway, and as a result plaintlfT, his vehicle, 
and the horse fell into the excavation at a point where It was 
about seventeen feet distant frofai the traveled track. A ques- 
tion submitted in the special verdict, "Did the unguarded quarry 
hole within the limits of the highway cause such highway to be 
in a condition of insufficiency?" is held, though faulty, not to 
have been fatally defective, in view of instructions that in an- 
swering it the Jury should • consider whether under all the cir- 
cumstances the lack of a railing or barrier rendered the high- 
way at that place "not reasonably safe" — ^meaning, plainly, not 
reasonably safe for public travel. 

2. The recital in such question of undisputed facts as to the quarry 

hole was not improper as invading the province of the Jury; nor 
was the question open to the criticism that it practically told 
the Jury that It was the duty of the town to make its highways 
suitable for. travel over their entire width. 

3. While a town is not bound to keep a highway suitable for travel 

throughout its entire width, a defect within the limits of the 
highway, though not within the traveled part thereof, may con- 
stitute an insufficiency if it is so connected with the traveled 
part that the road is not reasonably safe under all the circum- 
stances; and that question in this case was one for the Jury. 

4. In connection with a question as to whether the town had notice 

of the fact that the engine was being left on the intersecting 
highway, it was not necessary to submit another question as 
to whether it had notice of such fact in time to have had the en- 
gine removed before the accident, — the Jury having been fully 
instructed on the subject of constructive notice. 




IJ JANUARY TERM, 1916. 327 

— , , , 

Meidenbauer y. Pewaukee, 162 Wis. 326. 



6. A question, which the Jury answered in the negative, "Was the 
plaintiff guilty of any contributory negligence or want of ordi- 
nary care which contributed to produce and was the proximate 
cause of his injury?" was erroneous. It should have been, Was 
the plaintiff guilty of any want of ordinary care which proxi- 
mately contributed to produce his injury? But, the case being 
barren of any evidence of contributory negligence, the error 
was not prejudicial. 

6. A horse should not be considered as having been uncontrollable 

in the sense that it had escaped from management by Its driver 
and become a runaway, where it merely shied out of the trav- 
eled track and after going a few steps, while mopientarily not 
under control, reached &a excavation Into which it fell. 

7. Even if, in this case, the loss of control over the horse was more 

than momentary, and even if the excavation was not an action- 
able defect in the highway, nevertheless the town is liable, since 
it clearly appears that the engine in the highway was an object 
naturally calculated to frighten horses of ordinary gentleness 
and constituted an actionable defect which proximately caused 
the injury, plaintiff's horse having been startled thereby and 
having dashed into the excavation before he could, in the exer- 
cise of ordinary care, restrain it. 

Appeal from a judgment of the county court of Wauke- 
sha county: David W. Aoxew, Judge. Affirrned, 

Action to recover for an injury to person and property al- 
leged to have been proximately caused by insufficiency of a 
highway in the defendant town. 

The Waukesha Lime & Stone Company maintained a rail- 
way track within the limits of an east and west highway, 
crossing the one in question, which was a north and south 
road. It was in the habit of leaving a locomotive engine 
standing at a particular point, on such track, a short distance 
west \yi the intersection of the east and west with the north 
and south road, after working hours until time for operations 
to commence on the succeeding day, and to keep such engine 
• fired up, when reasonably required to guard against danger 
from freezing. The engine was so located with fire in the 
furnace on the occasion in question. On the opposite side of 
the north and south highway, some hundred feet or so, from 



328 SUPKEME COURT OF WISCONSIN. [Fbb. 



Meidenbauer v. Pewaukee, 162 Wis. 326. 



where the engine stood, there was a quarry excavation about 
twenty-one feet deep, which extended from outside the high- 
way area into it from ten and one-half feet at the intersection 
of the two ways to four feet and nine inches, about fifty feet 
from such intersectioil and at the point where the accident oc- 
curred. At such point the excavation was about seventeen 
feet from the traveled track. The highway was three rods 
wide. The drop into the quarry hole was abrupt It was 
wholly unguarded at the time of the accident and had been 
for a long time, though, formerly, it was guarded by a fence. 
As plaintiff was driving south, along the north and south 
highway, about 7:15 o'clock p. m. on the 6th day of March, 
1914, and had reached the vicinity of the engine, his horse 
shied toward the side on which the quarry excavation en- 
croached upon the highway, so that the wheel of his vehicle on 
that side went over the bank, carrying him, the horse, and the 
vehicle into such excavation, and causing injury to him in his 
person and property. 

The complaint contained all the allegations requisite to 
make out a cause of action to recover compensation for the 
loss plaintiff sustained. Defendant answered, putting in is- 
sue, in the main, such allegations and pleading contributory 
negligence of the plaintiff. 

There was evidence to establish the matters of fact before 
stated, and evidence tending to show that the engine, on the 
occasion in question, was emitting smoke and sparks ; that the 
horse was of ordinary gentleness ; that when it took fright at 
the sight of the engine, it instantly shied toward the excava- 
tion, momentarily became uncontrollable, and reached, and 
went into such excavation. There was also evidence to carry 
the case to the jury on the question of damages. 

The jury rendered a verdict as follows : 

"(1) Was the horse driven by the plaintiff on the night in 
question an ordinarily gentle driving horse ? A. Yes. 

"(2) Did the accident occur within the limits of the pub- 
lic highway in question in the defendant town? A. Yes. 



/ 

1] JANUARY TEEM, 1916. 329 



Meldenbauer v. Pewaukee, 162 Wis. 326. 



"(3) Did the unguarded quarry hole within the limits of 
the highway cause such highway to be in a condition of in- 
sufficiency t A. Yes. 

"(4) Was the engine in question on the highway running 
east and west at a point designated by cinder pile on the 
night in question ? A. Yes. 

"(5) Did the defendant town, through its officers, have no- 
tice of the fact that said engine was being left on the high- 
way at the point known as the cinder pile % A. Yes. 

"(6) Did the plaintiff's horse become frightened at the en- 
gine in question \ A. Yes. 

"(7) Was the plaintiff guilty of any contributory negli- 
gence or want of ordinary care which contributed to produce 
and was the proximate cause of his injury ? A. No. 

^^(8) Did the plaintiff lose control of his horse immedi- 
ately preceding the accident 2 A. Yes. 

"(9) If you answer ^Yes' to the eighth question, then you 
may answer this question: Was such loss of control perma- 
nent or merely momentary? A. Momentary. 

"(10) Was the failure to have barriers or railings at the 
quarry hole in question the proximate cause of plaintiff's in- 
jury? A. Yes. 

"(11) What damage did the plaintiff suffer by reason of 
the alleged inijuries caused by said accident? A. $300." 

Judgment was rendered in plaintiff's favor on such ver- 
dict 

For the appellant there was a brief by Muckleston <& 
Thomas, attorneys, and V. H. Tichenor, of counsel, and oral 
argument by J. E. Thomas. 

For the respondent there was a brief by Tullar, Lockney & 
Tullar, and oral argument by D. 8, Tullar. 

Marshall, J. Was the question, "Did the unguarded 
hole within the limits of the highway cause such highway to be 
in a condition of insufficiency," fatally defective? Coun- 
sel for appellant suggests it was because the proper test of the 
Buitableness of & highway is whether it is reasonably safe for 
public travel by persons in the exercise of ordinary care, and 
that the way the question was worded the jury may not have 



330 SUPKEME COURT OF WISCONSIN. [Feb. 

Meidenbauer v. Pewaukee, 162 Wis. 326. 

gotten that idea. Furthermore, that the recitals as to the 
quarrj hole being within the limits of the highway and its 
being unguarded, invaded the province of the jury. 

There was no dispute as regards the location of the quarry 
hole, nor as to its having been, at the time of the accident, 
and for a long time prior thereto, wholly unguarded. There- 
fore there was nothing improper in reciting such undisputed 
facts. If there were any room for jury interference in re- 
spect to the matter, it was as to whether the imguarded hole, 
under the circumstances, rendered the highway not reason- 
ably safe for travel by persons in the exercise of ordinary 
care. That matter was wholly left to the jury, if the words 
"caused the highway to be in a condition of insufficiency'' 
in connection with the instructions, imprejudicially sub- 
mitted it. 

The question is far from being a good model to be followed ; 
but there are many such situations which may exist without 
involving fatal infirmity. As contended by counsel for ap- 
pellant, the better way is to submit such a matter to a jury by 
a question calling for a finding as to the sufficiency of the 
highway, specifying plainly what will constitute it, as, whether 
it was reasonably safe for travel by persons in the exercise of 
ordinary care. Wheeler v. Westportj 30 Wis. 392 ; Korten- 
dick V. Waterford, 142 Wis. 413, 418, 125 N. W. 945. That 
has been said over and over again, and there is little excuse 
for not phrasing a question, in a case of this sort, in har- 
mony therewith. However, the wording of the statute, sec. 
1339, is that a municipality shall be liable for damages which 
"shall happen to any person, his team, carriage or other prop- 
erty by reason of the insufficiency or want of repairs'^ of any 
highway therein. The court early construed such statute in 
respect to what constitutes insufficiency, and the better way, 
in submitting such a matter to a jury, is to embody such con- 
struction in the question. A failure to do so or to give in- 
structions in respect to the matter, might be prejudicially 



1] JANUARY TERM, 1916. 331 

Meldenbauer v. Pewaukee, 162 Wis. 326. 

fatal in case of such a question being requested and refused 
and the jury not being so instructed as to enable them to un- 
derstand what constitutes the insufficiency of the statute. No 
such request was made in this case, and the jury were in- 
formed by the courts instructions as to the proper test of "in- 
sufficiency." They were told that, in determining the ques- 
tion, to consider whether, under all the circumstances, the 
lack of a railing or barrier rendered the highway where the 
accident occurred "not reasonably safe." That meant, 
plainly, not reasonably safe for public travel. They were 
further directed that, in case of their finding "from a pre- 
ponderance of the evidence that for want of railing or bar- 
riers the highway was not sufficiently safe" — clearly refer- 
ring to reasonable safety and sufficiency for public travel 
previously mentioned in the instructions — to answer the ques- 
tion accordingly. It is considered, in view of such instruc- 
tions, that the question complained of was not fatally defect- 
ive, though as before said, it is not a very good model to fol- 
low, even in connection with proper instructions. 

It is suggested that the third question practically told the 
jury that it is the duty of a town to make its highways suit- 
able for public travel for the entire width, contrary to Bhy- 
ner v. Menasha, 97 Wis. 523, 73 N. W. 41 ; Kelley v. Fond 
du Lac, 31 Wis. 179, and other cases in respect to that mat- 
ter. It does not seem sa It was left to the jury to say, 
imder all the circimistances, whether the unguarded excava- 
tion rendered the highway insufficient Among those cir- 
cumstances were the railway track on the cross road, a few 
feet from the excavation, and the evidence as regards the cus- 
tom of leaving an engine standing near by on such track and 
fired up, as testified to by the witnesses. In view of the whole 
situation, it was a fair jury question as to whether the un- 
guarded excavation rendered the highway insufficient with- 
in the meaning of the statute and the decisions of this court. 

While it is not incumbent on a town to prepare a highway 



332 SUPEEME COURT OF WISCONSIN. [Feb. 

Meldenbauer t. Pewaukee. 162 Wis. 326. 

for its whole width so as to be^ in general, suitable for public 
travel in every portion of it; but only a part thereof sufficient 
in extent for the safety and convenience of travel, and its 
liability, primarily, is limited to damages in the traveled 
tTSLcky-^Hawes v. Fox Lake, 33 Wis. 438 ; James v. Portage, 
48 Wis. 677, 6 N. W. 31; Goeltz v. Ashland, 75 Wis. 642, 
44 N. W. 770; Hammacher v. New Berlin, 124 Wis. 249, 
102 N. W. 489, — a defect within the limits of the highway 
need not, necessarily, be within such part to render it insuf- 
ficient for public use. It is sufficient to so render it if the de- 
fect is so connected with the traveled part that the road is not 
reasonably safe imder all the circumstances. Carpenter v. 
Boning, 107 Wis. 559, 83 N. W. 958 ; Hehhe v. Maple Creek, 
121 Wis. 668, 99 N. W. 442. However, in absence of spe- 
cial circumstances, a defect so far from the traveled track as 
the quarry hole was, might be considered, as a matter of law, 
as not rendering the highway actionably defective. But 
there were such special circumstances in this case, proper to 
be considered by the jury. The surface of the road seems to 
have been substantially smooth up to the brink of the deep 
excavation, and the engine was but a short distance away, so 
that, in case of its startling a horse traveling alongside of 
such excavation, the animal would naturally swerve suddenly 
toward it. The jury were instructed to determine the mat- 
ter in the light of the whole situation. 

Error is suggested because the court submitted the fifth 
question, without one requested, as regards whether the offi- 
cers of the town had notice of the fact that the engine was 
left on the highway in time to have had the same removed be- 
fore the accident occurred. The jury were very fidly in- 
structed on the subject of constructive notice, so the submis- 
sion of the question requested was not necessary. They were 
told that if it had been a common practice for weeks or 
months to leave the engine, as at the time of the accident, 
that, as a matter of law, rendered the town chargeable with 
notice of such practice. 



1] JANUAKY TERM, 1916. 338 

Meidenbauer ▼. Pewaukee, 162 Wis. 326. 

The seventh question was so worded as to require appel- 
lant, in order to secure, an asswer in its favor on the subject 
of contributory negligence, to find that respondent was guilty 
of "contributory negligence or want of ordinary care" which 
not only contributed to produce, but which "proximately 
caused the injury." That question was certainly rather con- 
fusing and plainly erroneous. The term "contributory neg- 
ligence" and the term "want of ordinary care" should not 
have been used so as to convey the idea that they are distinct 
The term "want of ordinary care" only should have been 
used. The term "contributory negligence" which proxi- 
mately caused "the injury" involves almost, if not quite, a 
contradiction. Moreover, if respondent was guilty of any 
want of ordinary care which proximately contributed to pro- 
duce his injury, though it was not the proximate cause of it, 
he coidd not recover. The question was not aided by the 
instructions. On the contrary, the infirmities in it were em- 
phasized thereby. 

Notwithstanding what has been said as to the seventh ques- 
tion, in view of the finding that the horse was an ordinarily 
gentle driving horse, that respondent only lost control of it 
momentarily, and immediately preceding the accident, and 
the imdisputed evidence that the horse shied immediately 
upon respondent observing the engine and suddenly took a 
few steps sideways and thus reached the excavation, in spite 
of respondent's efforts to prevent it, it does not seem that 
such question was prejudicial. The case seems to be barren 
of any evidence of contributory negligence. 

The criticisms of the eighth and of the ninth questions do not 
appear to have any substantial merit. True, unless the loss of 
control of the horse was merely momentary, so that it did not 
acquire the status of a runaway horse before it reached the ex- 
cavation, in one view of the case, that would be material 
SchUlinger v. Verona, 96 Wis. 456, 71 N. W. 888 ; EhleUer v. 
MUwauJcee, 121 Wis. 85, 98 N. W. 934. But the findings 
and the evidence clearly negative the idea that the horse had 



334 SUPREME COURT OF WISCOXSIK [Feb. 

, Meidenbauer v. Pewaukee, 1G2 Wis. 326. 



acquired such status before the accident, within what was said 
in Ehleiier v. MUwauJcee. It merely shied out of the trav- 
eled track and after going a few steps, momentarily not sub- 
mitting to respondent's efforts to direct it, the brinlc of the 
excavation was reached. A horse is not to be considered as 
uncontrollable in the sense that it has escaped from manage- 
ment by its driver, and become a runaway, during the brief 
interval of shying denominated by the term "momentarily 
not controlled by the driver." Titus v. Northbridge, 97 
Mass. 258. The form of the question on the subject of proxi- 
mate cause is criticised because it recited the absence of bar- 
riers or a railing at the quarry hole. As we remarked in dis- 
cussing the third question, such recitals merely referred to 
undisputed matters and therefore were proper. 

While no serious complaint seems to be made because the 
jury found that the unguarded quarry hole was the proximate 
cause of the accident, it is evident that, if it were not, then 
the condition which caused the horse to shy was such cause, 
and for that, according to the verdict, the appellant was re- 
sponsible. In that view, whether the horse reached the exca- 
vation while momentarily shying is immaterial. It is well 
settled that, if an ordinarily gentle horse is startled by an ac- 
tionable defect in a highway, and before its driver can, by 
the exercise of ordinary carp, restrain it, it dashes against 
some object or into a hole or ditch, thereby causing injury to 
the driver or his property, the municipality in which such 
highway is situated is liable therefor, whether such object, 
hole, or ditch constitutes an actionable defect in the highway 
or not Kelley v. Fond du Lac, 31 Wis. 179; Donohue v. 
Warren, 95 Wis. 367, 70 N. W. 305 ; Schillinger v. Verona, 
96 Wis. 456, 71 K W. 888; Seaver v. Union, 113 Wis. 322, 
334, 89 N. W. 163. The verdict of the jury made a clear 
case for respondent under that rule, in connection with the 
decision by the court that the engine, conditioned as the evi- 
dence pretty clearly showed, was an object naturally calcu- 
lated to frighten horses of ordinary gentleness, which, as mat- 



IJ JANUARY TERM, 1916. 335 

J. B. Bradford Piano Co. t. Hacker, 162 Wis. 335. 

ter of fact, it seems was so clear that there was no prejudicial 
error in not submitting the matter td the jury. 

It follows that, in any view we can take of the case, the 
judgment appealed from is right. 

By the Court. — The judgment is affirmed 



J..B. Bbadfobd Piano Couvais^Xj Appellant, vs. Hackbb, 

Respondent. 

January IS — February i, 1916. 



Sales: Refusal to accept: When property passes: Recovery of pur^ 
chctse price: Nominal damages for breach: Appeal: Affirmance 
of judgment. 

1. Defendant, in company with plaintilTs agent, selected a piano at 

the factory in Chicago, but wished certain alterations in the 
tone and in the color of the case, which the manufacturer agreed 
to make. The sale price and shipment to defendant in this 
state were agreed upon, and a written memorandum of sale was 
made accordingly. The work necessary to put the piano in de- 
liverable condition took from two to three weeks, and in the 
meantime defendant repudiated the contract. Held, that prop- 
erty in the piano had not passed to defendant, under the Uni- 
form Sales Act (sec. 1684^ — 18, and sub. 2, 5, sec. 1684^ — 19, 
Stats.), at the time of such repudiation, and hence plaintiff 
could not recover the purchase price. 

2. In an action for the purchase price, in such case, there being no 

claim for recovery of damages and no evidence offered to show 
damages resulting from the breach of contract, the most liberal 
rule of practice would not entitle plaintiff to more than nomi- 
nal damages; and since under sub. (6), sec. 2918, Stats., upon 
a judgment for nominal damages defendant and not plaintiff 
would be entitled to costs, a judgment for defendant should be 
affirmed. 

ApptcaTi from a judgment of the circuit court for Wash- 
ington coimty : Mabtin L. Lueck, Circuit Judge. Affirmed. 

This is an action to recover the purchase price of a Conover 
inner player piano sold by the plaintiff to the defendant. 



836 SUPEEME COUKT OF WISCONSIN. [Feb. 



J. B. Bradford Piano Co. ▼. Hacker, 162 Wis. 335. 



The plaintiff is a Wisconsin corporation engaged in the 
sale of music and musical instruments with its principal 
place of business in Milwaukee, Wisconsin. Plaintiff^s busi- 
ness with the defendant was transacted through H. W. Ran- 
dall, manager of the player piano department About two 
years ago Randall sold the plaintiff a Melville-Clark Apollo 
player piano. In February, 1914, she returned to the store 
and expressed a desire to exchange it for a new instrument 
A short time after this defendant called again and the price 
was discussed. Randall offered to take the Melville-Clark 
player piano and $250 in exchange for the $1,000 Conover 
inner player piano. Defendant was satisfied with the price 
provided she liked the new instrument She felt that the 
Stock Eolian player piano was her choice, but she consented 
to go to Chicago with Randall and see the Conover instru- 
ments there, where the assortment offered greater oppor- 
tunity for choice. Randall paid the expenses of the trip, and 
upon reaching Chicago took defendant to the Cable Com- 
pany's warerooms and from there to the Cable factory. 
They met a Mr. Baumann, who was in charge at the factory, 
and they tried out several instruments. Defendant finally 
showed a preference for one and agreed to take it provided 
the case would be stained a certain darker color and the tone 
made more brilliant, which was agreed to by Randall and the 
Cable Company. Randall then escorted defendant to the 
depot, where he suggested that she sign the following order, 
to which she assented. The material parts of the order are: 

Date *of order J, B. Bradford Piano Co., 

4/2/14. Milwaukee, Wis. 

Salesman Sold to Miss B, Hacker 

H. W. R. Hartford, Wis. 

Ship to Miss B. Hacker 
Town and State Hartford, Wis. 
Ship when . . . 
Terms: Cash delivered Price. 

Conover Inner Player p. c. c. 167237 $1,000 00 



Cr. 
Melville-Clark Piano R. Mahy. 750 00 



(Signed) Bebtha Hackeb. $250 00 



1] JANUAKY TERM, 1916. 337 

J. B. Bradford Piano Co. t. Hacker, 162 Wis. 336. 

•^ - - -■ _ -^ • — — ■ — ^^^^^^^^ 

This order was duly sent to the Cable Company, confirm- 
ing the verbal order as given by Randall while he and Miss 
Hacker were at the factory. On April 7, 1914, the defend- 
ant sent a letter to the Bradford Piano Company repudiating 
the contract The Bradford Company on May 2, 1914, made 
a tender of delivery of the piano as refinished. At the time 
of the trial the piano was in the warerooms of the Bradford 
Company. 

Mr. Eandall testified that he thought the work to be done 
on the instrument could be done in one day. Mr. Baumann, 
the person in charge of the Cable Company's factory, testi- 
fied that the process of staining the instrument the shade de- 
sired by the defendant took about two or three weeks. 

At the conclusion of plaintifiPs case before a jury the de- 
fendant moved for a nonsuit, which motion was granted. 
Judgment was entered dismissing plaintiff's complaint and 
that defendant recover her costs and disbursements of the ac- 
tion. From such judgment this appeal is taken. 

The cause was submitted for the appellant on the brief of 
H. L. Kellogg, and for the respondent on that of Sawyer & 
Sawyer, 

SiEBECKEB, J. The trial court held that the facts and 
circumstances show as matter of law that the property in the 
piano was not transferred to Miss Hacker at the time the 
written order for the purchase was given nor prior to the 
time Miss Hacker repudiated this contract on April 7, 1914. 
The plaintiff assails this holding of the trial court upon the 
ground that, on the evidence, it was a question for the jury 
to determine whether or not th*^ parties to the contract in- 
tended that the property in the piano was transferred prior 
to the time defendant repudiated the sale. The evidence 
fihows that defendant and plaintiff's agent negotiated for the 
sale on April 2, 1914, at the factory of the Cable Company 
in the city of Chicago, where the defendant selected the piano 
in question. It appears that she was not satisfied with the 
Vol. 162 — 22 



338 SUPREME COURT OF WISCONSIN. [Feb^ , 

J. B. Bradford Piano Ck). v. Hacker, 162 Wis. 335. 

color of the case of the instrument she selected and insisted 
on having the color altered and made darker. The manufac- 
turer agreed with plaintiff and defendant to alter the color 
so as to comply with the understanding of the parties, to regu- 
late the tone of the instrument as defendant desired it, and to 
insert the player action and test it as is usually done before 
sending instruments from the factory to customers. The sale 
price and the shipment of the instrument by railroad to Hart- 
ford, Wisconsin, by the plaintiff were agreed upon by plaint- 
iff's agent and defendant as specified in the written memo- 
randum of sale, set out in the above statement. The defend- 
ant signed this memorandum at the depot in Chicago. The 
evidence shows that the piano was returned to the varnishing 
department of the factory and a color coat of varnish applied 
to bring the color to the shade desired by the defendant* 
After this coat had dried two more coats of regular varnish 
were put on, which when properly dried completed the piano 
so Aat it was ready for shipment. This process took from 
two to three weeks, when the instrument was boxed and 
shipped. Defendant repudiated the contract on the fifth day 
from the date of sale. The facts and circumstances show 
that the piano was not in a deliverable condition at any time 
up to the date of the repudiation on April 7, 1914. The 
contract also required the shipment of the instrument from 
Chicago to Hartford, Wisconsin, which could not be done, 
and in fact was not attempted to be done, within two weeks- 
or more after the sale. The conduct of the parties at the fac- 
tory and in negotiating the sale, when taken in connection 
with the terms of the contract and the circumstances of the 
case, fails to show that it was mutually understood and in- 
tended that the property in the instrument should pass to de-- 
fendant at this time. It is plain that the defendant had no 
control of nor any dominion over the instrument while in the 
factory and that the Cable Company retained full control 
and possession to deal with the property as its own. The evi- 



1] JANUARY TERM, 1916. 339 

J. B. Bradford Piano Co. v. Hacker, 162 Wis. 335. 

dence, showing the entire transaction, does not permit of the 
inference that the parties mutually intended that the prop- 
erty passed to defendant under the agreement of sale of the 
instrument, as contemplated by the provisions of sec. 1684i — 
18, Stats. 1915. In the light of the provisions of sub. 2, 6, 
sec. 1684< — 19, Stats. 1915, it is clear that the property had 
not passed to defendant when she repudiated the contract. 
Sub. 2 provides : 

"Where there is a contract to sell specific goods and the 
seller is bound to do something to the goods, for the purpose 
of putting them in a deliverable state, the property does not 
pass until such thing be done." 

It is obvious that the piano was not in a deliverable state 
until the coloring of the case had been altered to comply with 
the conditions of the sale, within the contemplation of this 
statute, and hence the property had not^ passed when defend- 
ant repudiated the sale. It is also manifest that the transac- 
tion is governed by the provisions of sub. 5 of this statute as 
regards delivery of the instrument This section provides 
that: 

"If the contract to sell requires the seller to deliver the 
goods to the buyer, or at a particular place, or to pay the 
freight or cost of transportation to the buyer, or to a particu- 
lar place, the property does not pass until the goods have 
been delivered to the buyer or reached the place agreed upon." 

The condition as to shipment expressed in the written 
memorandimi of sale required of plaintiff to ship and de- 
liver the instrument at Hartford, Wisconsin. Taking, then, 
the conditions and requirements of putting the piano in a de- 
liverable state before such delivery as above indicated and de- 
livery thereof by the seller as specified, it is clear under all 
the facts and circumstances of the case that the property in 
the instrument had not passed to defendant at the time she 
repudiated the contract. 

Under the circimistances and conditions of the sale defend- 



340 SUPEEME COURT OF WISCONSIN. [Feb. 

J. B. Bradford Piano Ck). ▼. Hacker, 162 Wis. 335. 

ant's breach of the contract on April 7, 1914^ renders her 
liable to the plaintiff for the damages it sufiEered from such 
breach under the provisions of sec 1684^ — 64^ Stats. 1915^ 
and the decisions of this court. It was held in Badger State 
L. Co. V. G. W. Jones L. Co. 140 Wis. 73, 121 N. W. 933, 
that where specific performance caimot be enforced either 
party may stop performance and subject himself to the pay- 
ment of compensatory damages. ^^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" Citing cases in this court The 
complaint is framed for recovery of the purchase price and 
no evidence was offered to show damages residting from the 
breach of contract Appellant makes no claim upon the rec- 
ord for recovery of damages. The most liberal rule of prac- 
tice authorized imder the statutes (ch. 219, Laws 1915 : sec 
28366, Stats. 1915) in the light of the record would entitle 
plaintiff to no more than nominal damages, and requires af- 
firmance of the judgment upon the authority of CronemiUar 
V. Duluth-Superior M. Co. 134 Wis. 248, 114 N. W. 432. 
On appeal a judgment for defendant will be affirmed if nom- 
inal damages do not carry costs but subject plaintiff to costs. 
Under sub. (6), sec. 2918, Stats. 1915, plaintiff is not en- 
titled to costs on recovery of nominal damages, and costs are 
allowed to defendant. 

By the Court. — The judgment appealed from is affirmed* 



1] JANUARY TERM, 191C. 341 

Federal Rubber Mfg. Co. ▼. Hayolic, 162 Wis. 341. 



Fedebal Rubbeb Manufaotuking Company, Appellant^ 
vs. Havolic and another, Respondents. 

January 14 — February i, 1916. 

Workmen's compensation: When compensation allowed: Injury from- 
horse-play: "Service growing out of and incidental to his employ- 
ment." 

1. To be within the Workmen's Compensation Act an injury to an 

employee must appear to have had its origin in a risk connected 
with the employment and to have flowed from that source as a 
rational consequence. 

2. The claimant, an employee in a rubber tire factory whose duties 

did not require him to use or come in contact with the com- 
pressed air system, and who knew that its use by employees to 
clean their clothes was forbidden, on quitting work for the day 
took down the air hose^ and began to blow the dust from his 
clothes. A fellow-workman, taking the hose from his hands^ 
proceeded to clean his (the claimant's) back, and as a Joke 
held the nozzle to his rectum and thereby ruptured his in- 
testines. Held, that the injury was not one incidental to the 
employment, nor was the claimant at the time "performing serv- 
ice growing out of and incidental to his employment," within 
the meaning of sub. (2), sec. 2394 — 3, Stats. 1915. 
[8. There being proof that, although it was formally prohibited, em- 
ployees were accustomed to use the hose to brush their clothes 
without rebuke from the foreman, no opinion is expressed as to 
what the rights of the claimant would have been had he hurt 
himself while he was handling the hose for that purpose.] 

Appeal from a judgment of the circuit court for Dane 
county: E. Kay Stevens, Circuit Judge. Reversed. 

This is an appeal from a judgment confirming an award 
6i the Industrial Commission in favor of the respondent 
Havolic under the Workmen's Compensation Act (sees. 
2394—1 to 2394—31, Stats. 1915). 

The essential facts are not disputed. Havolic worked for 
the plaintiff in its rubber tire factory, his duties being to 
feed stock into a tubing machine. In the department in 
which he worked there was a compressed air system with hose 



342 SUPREME COURT OF WISCOXSIN. [Feb. 

Federal Rubber Mfg. Co. v. Havolte, 162 Wis. 341. 

and nozzles attached for use in some of the factory opera- 
tions, but Havolic had no duty which required him either to 
use or come in contact with the system or the hose. Employ- 
ees were forbidden to use the hose for the purpose of clean- 
ing their clothes and Havolic knew of the prohibition, but 
many, employees did do so, and on the evening of the accident 
Havolic, on quitting work, took down the hose from its place 
and began to use it to blow the dust from his clothing. He 
had cleaned a part of his clothing when a fellow-workman 
came up and (whether of his own motion or at Havolic's re- 
quest is a matter in dispute) took the hose from Havolic's 
hand and proceeded to clean his (Havolic's) back. The air 
in the hose was at a pressure of nearly or quite eighty pounds, 
and the fellow-workman, apparently by way of practical 
joke, held the nozzle to Havolic's rectum, with the result 
that the intestines were ruptured. Havolic was compelled 
to go to the hospital for several weeks and was totally dis- 
abled for seventeen weeks. For these injuries the award 
complained of was made. 

For the appellant there was a brief by Robert R. Freeman 
and Henry J. Bendinger, and oral argument by Mr, Ben- 
dinger. 

For the respondent Industrial Commission there was a 
brief by the Attorney Oeneral and Winfield W. GUm^n, as- 
sistant attorney general, and oral argument by Mr. Oilmaiu 

WiNSLOw, 0. J. This court has endeavored to give to the 
Workmen's Compensation Act a broad and enlightened con- 
struction, to the end that it may accomplish to the fullest ex- 
tent its beneficent purpose. It is to be remembered, how- 
ever, that this purpose was to compensate for injuries result- 
ing from one class of accidents only, namely, industrial acci- 
dents. There is liability only "where, at the time of the ac- 
cident, the employee is performing service growing out of and 
incidental to his employment." Sub. (2), sec. 2394 — 3, 



1] JANUARY TERM, 1916. 34$ 

Federal Rubber Mfg. Co. v. Havolic, 162 Wis. 341. 

Stats. 1915. It was held in Hoenig v. Industrial Comm, 
159 Wis. 646, 150 N. W. 996, after full argument and con- 
sideration, that the injuries covered by the act are such as 
"are incidental to and grow out of the employment." This 
seems practically to n^ean the same thing as the expression in 
the English compensation act "arising out of and in the 
course of the employment" 

Under the English act it has been held that accidents re- 
sulting from "larking" or playing with machinery cannot be 
held to arise out of the employment. Pumiss v. Gartside, 
3 Butterworth's Workm. C. C. 411 ; Cole v. Evans, 4 id. 138. 

The Massachusetts act provides compensation for an injury 
which arises "out of the employment, and it was well said by 
the Massachusetts supreme court in McNicoVs Case, 215 Mass. 
497, 102 K E. 697 : 

"The causative danger must be peculiar to the work and not 
common to the neighborhood. It must be incidental to the 
character of the business and not independent of the relation 
of master and servant. It need not have been foreseen or ex- 
pected, but after the event it must appear to have had its ori- 
gin in a risk connected with the employment, and to have 
flowed from that source as a rational consequence." 

The "causative danger" in the present case does not come 
within the test here prescribed nor anywhere near it. 

Had the claimant hurt himself in some way while he was 
handling the hose in the effort to remove the dust from his 
clothes a different question would have been presented. There 
was proof that employees were accustomed to brush their 
clothes in this manner without rebuke from* the foreman, 
though there was a formal prohibition of such action, and we 
express no opinion as to the rights of the parties had the acci- 
dent happened in this way. But how injuries resulting from 
such inexcusable and revolting horse-play as this can be said 
to be incidental to the employment we are unable to under- 
stand. It is equally impossible to understand how it can be 



344 SUPKEME COTJKT OF WISCONSIN. [F; 

Menominee Bay Shore L. Co. y. Industrial Comm. 162 Wis. 344. 

^said that the claimant at the time of the accident was perform- 
ing service "growing out of and incidental to his employ- 
ment" 

By the Court. — Judgment reversed without costs, and ac- 
tion remanded with directions to reverse the award of the In- 
■dustrial Commission, 



Menomineb Bay Shobe Lumbeb CoMPAmr^ Appellant, vs. 
Industrtat* Commission of Wisconsin and another, 
Kespondents. 

January H — February 1, 1916. 

Workmen* 8 compensation: Proceedings before industrial commission: 
Minors: Guardians not necessary: Compromise of claim: Award 
pursuant thereto: Review: Tacation: New award. 

1. The industrial commission being merely an administrative body, 

in proceedings before it in behalf of a minor employee, under 
the Workmen's Compensation Act, it is not essential that he be 
represented by a guardian. 

2. A minor employee, under the Workmen's Compensation Act, may, 

like an adult, compromise his claim for compensation, subject 
to the power of the industrial commission under sec. 2394 — ^15, 
Stats., to review, set aside, modify, or confirm such compromise 
upon application made within one year. 

3. A mere formal award of compensation made by the industrial 

commission pursuant to a compromise and stipulation between 
the parties is not such a review and confirmation of the compro- 
mise as sec. 2394 — 15 contemplates. 

4. Relief against such an award is not limited to an action under 

sec. 2394 — 19, commenced within twenty days in the circuit 
court; and an application made within one year from the time 
of the compromise, though in form for an original award, might 
be treated as a request for a review and vacation of the com- 
promise, and a new award might be made thereon, in effect set- 
ting aside and remedying the injustice of the compromise agree- 
ment. 

Appeal from a judgment of the circuit court for Dane 
<50unty : E. Ray Stevens, Circuit Judge. Affirmed. 



1] JANUAKY TERM, 1916. 845 

Menominee Bay Shore L. Co. ▼. Industrial Ck>mm. 162 Wis. 344. 

Action to set aside an award made by the defendant Gorr^ 
mission in favor of defendant Schmidt. 

Defendant Schmidt, a minor eighteen years of age, while 
in the employ of plaintiff, on the 26th day of January, 1914, 
fell off a lumber pile and was injured. The provisions of the 
Workmen's Compensation Act applied to the matter. The 
accident was duly reported to the Industrial Commission, and 
the age of the injured person stated. He was paid some com- 
pensation and later made an agreement in writing with plaint- 
iff, reciting the matters aforesaid and the following: The fall 
from the lumber pile caused injuries to the employee's head 
producing a disability from the date of the accident to the 
time of the agreement. When injured he was receiving 
$10.50 per week. He has been paid, as compensation under 
the Workmen's Compensation Act, $88.66 for the period 
from January 27, 1914, to April 27, 1914. He has also re- 
ceived medical and surgical treatment, medicines, and surgi- 
cal supplies and apparatus as required, for the ninety days 
subsequent to the injury. There is a dispute between him 
and his employer as to whether he is still disabled so that he 
cannot return to the employment at which he was working at 
the time of the accident, and it is desired by both parties that 
the dispute be compromised and settled. The recitals were 
followed by an agreement that the Industrial Commission 
might enter an award in a lump sum, on the statement of 
facts, that the employer pay Schmidt $54.56 in addition to 
the $88.66 previously paid. The instrument was filed with 
the Industrial Commission and it made an award accord- 
ingly, which was, in due form, satisfied on the 1st day of 
June, 1914. 

In the proceedings aforesaid, Schmidt was not represented 
by a guardian of any sort, but was represented by an attor- 
ney. He could not read or write English ; but the agreement 
he made was explained to and understood by him. 

On September after the satisfaction aforesaid, Schmidt, 
represented by a general guardian, filed an application for 



340 SUPREiEE COURT OF WISCONSIN. [Feb. 

Menominee Bay Shore L. Co. v. Industrial Comm. 162 Wis. 344. 

compensation for the injury settled for as aforesaid. In 
such application, disability in the neck and back was claimed, 
whereas the disability mentioned in the settlement was to the 
head. The matter was duly heard before the Commission, it 
being insisted on behalf of the applicant that he was not 
bound by the award or the stipulation therefor because he 
was not represented in the proceedings by a guardian, and in 
opposition thereto that such award was binding because a 
guardian in such proceedings is not essential. 

The Commission decided that its previous finding, based 
on the stipulation for settlement, was erroneous ; but that an 
award in favor of a minor upon facts found in a regular hear- 
ing is conclusive, whether the minor is represented by a 
guardian or not, but that a minor cannot bind himself by an 
agreement that a certain sum will fully compensate him for 
all disability resulting from an injury when the facts are 
otherwise, and that an award made on such an agreement 
does not preclude the Commission from entertaining an ap- 
plication for further compensation in accordance with the 
actual facts. 

Upon proofs submitted, the Commission exonerated plaint- 
iff from any intention to overreach its employee in making 
the compromise agreement, and awarded additional compen- 
sation. 

The second award was affirmed by the circuit court upon 
the ground that the minor had a right to disavow his agree- 
ment and hence the Commission had jurisdiction to make the 
second award. Judgment was rendered accordingly. 

For the appellant there was a brief by Quarles, Spence & 
Quarles, attorneys, and J. A. Fish, of counsel, and oral argu- 
ment by Mr, Fish, 

For the respondent Industrial Commission there was a 
brief by the Attorney Oeneral and Winfield W, Oilman, as- 
sistant attorney general; for the respondent Schmidt, a brief 
by L, M. Evert; and the cause was argued orally by Mr. Oil- 
mkn. 



1] JANUAKY TERM, 1916. 347 

Menominee Bay Shore L. Co. v. Industrial Comm. 162 Wis. 344. 

Mabshall, J. The Industrial Commission is not a court. 
It is an administrative body, merely. No authority is cited 
to our attention, and we are unable to find any, that a guard- 
ian is jurisdictionally essential to proceedings in behalf of a 
minor by such a body, in the absence of a statute requiring it. 
The Workmen's Compensation Act makes no such require- 
ment It seems to contemplate that a minor,- the samQ as an 
adult, may make application to the Industrial Commission 
to determine the compensation which should be awarded in 
case of his receiving a personal injury under such circum- 
stances as to warrant a recovery therefor by proceedings be- 
fore such Commission. He need not, necessarily, be repre- 
sented by a guardian. Sub. (2), sec. 2394 — 7, Stats., pro- 
vides that minors "who are legally permitted to work under 
the laws of the state" "for the purposes of sec. 2394 — 8, 
shall he considered the same and shall have the same power 
of contracting as adult employees." 

It is quite significant that minors, mentioned, for the pur- 
poses indicated, are not only empowered to contract to the 
same extent as adults, but are, for all such purposes, to be con- 
sidered the same as adults. That is a pretty plain legislative 
declaration that a guardian to represent a minor, in matters 
within the jurisdiction of the Industrial Commission under 
the Workmen's Compensation Law, is not essential. 

Sec. 2394 — 8, referred to in sub. (2) aforesaid, provides 
that any employee, as defined in such subsection "shall be 
deemed to have accepted and shall, within the meaning of 
section 2394 — 3, be subject to the provisions of sections 
2394 — 3 to 2394 — 31, inclusive," in cases which include the 
one in question. Thus the entire Workmen's Compensation 
Act is covered, as the sections referred to are all there is of it. 

Nothing further need be said to show that there was no 
fatal infirmitv in the first award from the mere fact that re- 
spondent Schmidt was not represented before the Commis- 
sion by a guardian. That is in harmony with Foth v, Mor 
comber £ W. R. Co. 161 Wis. 549, 154 N. W. 369, 871. 



348 SUPREME COURT OF WISCONSIN. [Fm, 

Menominee Bay Shore L. Co. v. Industrial Comm. 162 Wis. 344. 

Appellant's counsel suggest that^ regardless of whether the 
Commission errs, jurisdictionally or otherwise, in deciding 
an application for compensation, its action can only be dis- 
turbed by proceedings under sec. 2394 — 19, Stats., which 
provides that such a determination shall be subject to review 
only by action commenced within twenty days from its date 
in the«circuit court for Dane county; and shall be set aside 
only upon the ground that "the commission acted without or 
in excess of its powers,'^ or "the order or award was procured 
by fraud," or "the findings of fact by the commission do not 
support the order or award." It is considered that such sec- 
tion must be read in connection with sec 2394 — 15, Stats., 
which provides that "every compromise of any claim for com- 
pensation under sections 2394 — 3 to 2394 — 31, inclusive, 
shall be subject to be reviewed by, and set aside, modified or 
-confirmed by the commission upon application made within 
one year from the time of such compromise." That contem- 
plates, in general, that compromises of disputes concerning 
compensation, subject to the power of the Commission to set 
aside, modify, or confirm the same within the time indicated, 
as to minors, who are within the scope of the Workmen's 
Compensation Act, are to be considered the same as others; 
that competency to compromise, subject to the indicated con- 
trol by the Commission, applies to one class the same as to the 
other. 

Counsel for appellant contends that the first award was 
confirmatory of the compromise and exhausted the power of 
the Commission under sec. 2394 — 15 aforesaid. Counsel 
for respondents contend that the application which resulted 
in the second award was, in effect, a request for a review and 
vacation of the compromise and that the proceedings which 
resulted in the first award were, in no sense, such a review as 
the statute contemplates. We incline to that idea. Such 
statute clearly provides for a hearing on application therefor 
in respect to the validity or justice of a compromise. There 



IJ JANUARY TERM, 1916. 349 



CoUins y. State, 162 Wis. 349. 



was no such hearing in this case when the first award was 
made. There was only a mere formal award, following the 
stipulation of the parties. Whether it was just or not was 
evidently not thought of. The later application, in practical 
effect, called for such a review and a decision was made, in 
•effect, that the compromise agreement was unjust to the ex- 
tent remedied by the second award. The challenge of the 
compromise was made in time and it matters not that it was 
in the form of an application for an original award 

The result is that the judgment appealed from should be 
a£Srmed upon the ground that the second award was, in re- 
ality, the result of exercise of the Commission's power to set 
aside a compromise. The Commission has very broad power 
in that field, enabling it to protect minors or others who may, 
through mistake, make an improvident settlement. We thus 
treat the matter the same as if respondent Schmidt were an 
adult. 

By the Court. — The judgment is affirmed. 



Collins, Plaintiff in error, vs. The State, Defendant in 

error* 

January 14 — February i, 1916, 

Highways: Obstruction: Statute construed: Action, civil or criminalt 

When a fence is an obstruction, 

1. Sec. 1326, Stats., since its amendment by ch. 143, Laws 1909, makes 

the olwtructlon of a public highway in the manner therein 
stated a crime punishable in a criminal action. 

2. Although not specifically mentioned in sec. 1826, Stats., a fence 

wilfully placed in the traveled track of a highway constitutes an 
obstruction, within the meaning of that section. In the light 
of the history of the statute, fences so placed must be deemed 
to be included in the general words "other materials or sub- 
stances intended or calculated to impede or incommode the law- 
ful use of such highway." 



350 SUPKEME COUET OF WISCONSIN. [Feb. 

Collins y. State, 162 Wis. 349. 



Ebbob to review a judgment of the circuit court for St. 
Croix county: Geobge Thompson, Circuit Judge. Af- 
firmed. 

The plaintiff in error, hereinafter called the defendant, is 
charged in the information with obstructing a public high- 
way by wilfully and maliciously placing and building a fence 
within and along the traveled track in violation of sec. 1326, 
Stats. 1915. 

The defendant together with his brother is the owner of 
the southwest quarter (S. W. \) of section thirty-six (36), 
range nineteen (19), in the town of Troy in St. Croix county. 
A highway ran along the north side of this tract of land 
which had been used by the public for a period of forty years 
or more. When defendant purchased the land his grantors 
told him that one Simpson, owner of land on the other side 
of the highway, was encroaching on the north side of the 
traveled track and that no part of the grade along the north 
side of this land was on the southwest quarter (S. W. \) of 
section thirty-six (36), the land which they sold to him. 
The defendant, being under the impression that the highway 
'was encroaching on his land, consulted an attorney in regard 
to building a fence along his north line. The attorney ad- 
vised him that he might build a fence along his north line, 
and that if the town officers disputed his right to put a fence 
there they would probably tear it down and he could then 
bring an action in trespass and try out the question as to the 
location of the highway. Defendant, relying on this advice, 
built a fence in and along the highway. Part of this fence 
was in the traveled track of the highway. Mr. Simpson, his 
neighbor, who was then the pathmaster, told defendant not 
to build a fence there until he obtained permission from the 
town chairman, but defendant replied, "He didn't care." 
Simpson then called up the chairman and again spoke to the 
defendant and delivered the chairman's message to the effect 
that Collins must not build the fence, to which Collins an- 



1] JANUARY TERM, 1916. 351 

Collins T. State, 162 Wis. 349. 

■ — M^MI^ 

flwered, "I don't care; going to build the fence anyhow." 
Simpson again told him he better not build the fence until 
the line was established. Collins then said, ^'I will fence 
anyhow," and did erect the fence. 

The action was commenced in justice's court and the de- 
fendant answered and deposited a bond conditioned on an ap- 
peal to the circuit court The justice's court found the bond 
sufficient Defendant moved for a discharge on the ground 
that the complaint did not state a crime or an offense under 
the statutes, but this motion was overruled. The trial pro- 
ceeded in justice's court, and the defendant, offering no testi- 
mony, was adjudged guilty of the offense. 

Upon appeal to the circuit court the defendant was con- 
victed and sentenced to pay a fine of $25 and the costs of the 
prosecution, amounting to $148, and in default of the pay- 
ment of the fine and costs he be confined to the common jail 
of St. Croix county, Wisconsin, until such fine and costs are 
paid, not to exceed four months. To review such judgment 
defendant sued out this writ of error. 

For the plaintiff in error there was a brief by McNally & 
Doar and F. M. White, and oral argument by W. T. Doar. 

For the defendant in error there was a brief by the Air 
iomey General and /. E, Messerschmidt, assistant attorney 
general, and oral argument by Mr. Messerschmidt 

SiEBECKEB, J. Sec. 1326, Stats., prior to its amend- 
ment by ch. 143, Laws 1909, provided for the punishment of 
persons for obstructing any highway by imposing a penalty 
as a forfeiture which was recoverable in a civil action. The 
amendment changed the nature of the offense from "a for- 
feiture" to "a misdemeanor" and increased the penalty from 
a maximum of twenty-five dollars to "a fine of not less than 
ten nor more than one hundred dollars." From the contents 
of the amended statute it is clear that the offense is made a 
crime punishable in a criminal action. The objections that 



362 SUPKEME COURT OF WISCONSIN. [Feb. 

Collins T. SUte, 162 Wis. 349. 

the state proceeded wrongfully against the defendant by 
prosecuting him criminally for the allied offense are not 
well taken, and the ruling of the circuit court on these points 
must be affirmed. 

It is argued that the court erred in holding that sea 1326, 
Stats. 1915, as amended, denounces the placing of fences in 
highways as an obstruction if intended or calculated to im- 
pede or incommode the lawful use of such highways. The 
history of the legislation as embodied in this section of the 
statutes shows that the mischief which the legislature in- 
tended to provide against was the obstruction of highways 
which rendered it dangerous to the public while traveling 
thereon. It is obvious that the object of the amendment to 
the law in 1909 was to enlarge its scope so as to include cer- 
tain specific dangers to travelers not theretofore included in 
the statutes. This was accomplished by inserting an enumer- 
ation of the specific dangers in the statute before the general 
words "or other materials or substances." The last quoted 
words were evidently used to designate the obstructions which 
were included in the statute before this amendment. The 
statute was thus enlarged in its scope by denouncing as crimi- 
nal the specific acts of placing in any highway "any depres- 
sion, ditch, humps or embankments of earth, logs, stone or 
stones, nails, glass," in addition to what was denounced 
thereby before its amendment. This court declared under 
the old act that : "It is the settled law of this state that a struc- 
ture within the limits of the highway which impedes or seri- 
ously inconveniences travel thereon constitutes an 'obstruc- 
tion' within the meaning of sec. 1326, Stats. (1898), au- 
thorizing its summary removal." ( Citing. ) Jones v, Tobin, 
135 Wis. 286, 115 K W. 807. It was also held that a fence 
post placed in the traveled portion of a sidewalk on a high- 
way is an obstruction within the statute in its amended form. 
Jennings v. Johonnott, 149 Wis. 660, 135 K W. 170. 

We have examined the evidence and are satisfied that it is 
sufficient to warrant the jury in finding that defendant wil- 



1] JANUARY TERM, 1916. 353 

Dagan v. State, 162 Wis. 353. 



fully placed the fence in the traveled track of the highway in 
question with the intent to impede or incommode the lawful 
use of this highway. We find no reversible error in the rec- 
ord. 

By the Court, — The judgment of the circuit court is af- 
firmed. 



Dagan, Plaintiff in error, vs. The State, Defendant in error. 

January 14 — February 1, 1916, 

Intoxicating Hquora: Sale to Indiana: /statute construed. 

Construing it in accordance with the doctrine of "last antecedent" 
and in the light of the hiBt9ry of the legislation on the subject, 
sec. 1667, Stats., — ^providing that "no person shall sell . . . liquor 
to any Indian or to any mixed-blood Indian, except civilized per- 
sons of Indian descent not members of any tribe," — ^prohibits 
the sale of liquor to any full-blood Indian whether he belongs 
to a tribe or not. 

Ebbor to review a judgment of the municipal court of 
Brown county: N. J. Moxaiian, Judge. Affirmed. 

For the plaintiff in error the cause was submitted on the 
brief of Kittell £ Burke and Dennison Wheelock, 

For the defendant in error there was a brief by the Attor- 
ney General and J. E, Messerschmidt, assistant attorney gen- 
eral, and oral argument by Mr, Messerschmidt, 

Kebwin, J. The plaintiff in error was convicted of hav- 
ing sold intoxicating liquor to one Chas. Wheelock, an In- 
dian, contrary to the provisions of sec. 1567, Stats. The 
judgment of conviction was brought here for review by writ 
of error. 

"Section 1567. No person shall sell, barter, give or in any 

manner dispose of any intoxicating liquor to any Indian or 

to any mixed-blood Indian, except civilized persons of Indian 

descent not members of any tribe ; and every person so offend- 

VoL. 162 — 23 



354 SUPREME COURT OF WISCONSIN. [Feb. 

Dagan v. State, 162 Wis. 353. 



ing shall for each offense be punished by a fine not exceeding 
one hundred dollars or by imprisonment in the county jail 
not exceeding three months, or both." 

Under the foregoing statute it is the contention of counsel 
for plaintiff in error that if Chas. Wheelock was not a mem- 
ber of any tribe of Indians there should have been a verdict 
of not guilty. On the part of the defendant in error it is ar- 
gued that, Chas. Wheelock being a full-blood Indian, the sale 
of intoxicating liquor to him was within the prohibition of 
the statute whether he was a member of a tribe or not. The 
argument of the defendant in error is that the statute makes 
two classes: first, full-blood Indians, and second, mixed-blood 
Indians, except civilized persons of Indian descent not mem- 
bers of any tribe, and that the clause "except civilized per- 
sons of Indian descent not members of any tribe" modifies 
the phrase next preceding it — "to any mixed-blood Indian," — 
and does not refer to or affect the phrase "to any Indian." 
In Zivieticsch v. East Milwaukee, 161 Wis. 519, 522, 154 N. 
W. 981, 982, this court quotes from 36 Cyc. 1123, j, as fol- 
lows: 

• 

"By what is known as the doctrine of the 4ast antecedent,' 
relative and qualifying words, phrases, and clauses are to be 
applied to the words or phrase immediately preceding, and 
are not to be construed as extending to or including others 
more remote, unless such extension is clearly required by a 
consideration of the entire act." See, also, 2 Lewis's Suth- 
erland, Stat. Constr. (2d ed.) §§ 420, 421; Jorgenson v. Su- 
perior, 111 Wis. 561, 87 K W. 565. 

There is nothing in the statute in the instant case which 
requires a different construction. On the contrary the his- 
tory of the legislation on the subject supports such construc- 
tion. When this statute was first enacted (R S. 1849, 
ch. 30) it prohibited the sale of intoxicating liquor to "any 
Indian." Sec. 1 provided: 

"If any person shall sell, barter, give, or in any manner 
dispose of any intoxicating drink to any Indian within this 
state, he shall forfeit for every such offense the sum of fifty 



1] JANUARY TERM, 191G. 355 

Dagan v. State, 162 Wis. 353. 

dollars, to be recovered by any person who will sue for the 
same in his own name, in an action of debt, before any justice 
of the peace of the county in which the offense shall be com- 
mitted." 

The statute was re-enacted in the Revised Statutes of 1858, 
ch. 36. In the Revised Statutes of 1878, sec. 1567, the stat- 
ute in its present form was enacted. So it seems that the 
l^slature by the amendment intended to leave the prohibi- 
tion against selling intoxicating liquor "to any Indian" as it 
existed before the amendment and to add to the statute by the 
amendment a prohibition against selling intoxicating liquor 
to such mixed-blood Indians as were not civilized persons of 
Indian descent or members of any tribe. 

In People v. Gebhard, 151 Mich. 192, 115 N. W. 54, it 
was held that the phrase "nor to any person of Indian de- 
scent," in a statute prohibiting the sale of intoxicating liquor, 
was not synonymous or co-extensive with the words "nor to 
any Indian." 

The fundamental rule in the construction of statutes is to 
ascertain and give effect to the intention of the legislature. 
From the light which the context affords, in connection with 
the history of the l^islation, the court is of opinion that the 
construction placed upon the statute by the attorney general 
is correct and expresses the intention of the legislature, 
namely, that the statute prohibits sale of intoxicating liquor 
to all full-blood Indians. 

This construction seems to be in harmony with decisions 
touching the subject. People v. Gebhard, 151 Mich. 192, 
115 N. W. 54; People v. Bray, 105 Cal. 344, 38 Pac. 731; 
State V. Wise, 70 Minn. 99, 72 N. W. 843 ; Farrell v. U. 8. 
110 Fed. 942. 

It is without dispute that Chas, Wheelock was a full-blood 
Indian, hence the sale to him was prohibited by the statute 
whether he belonged to a tribe or not. 

It follows that the judgment below must be affirmed. 

By the Court. — The judgment is affirmed. 



356 SUPEEME COURT OF WISCONSIN. [Feb. 

NorriB V. Norrls, 162 Wis. 356. 



NoRRis, Respondent, vs. Norris, Appellant. 

November 17, IVlS—February 22, 1916, 

Divorce: Judgment: Alimony or final divisionf Revision: Examina- 
tion of adverse party. 

1. Where no definite sum In the aggregate is fixed by the divorce 

Judgment and where the duration of the period over which pay- 
ments are to extend is subject to the contingency of remarriage 
or death, such Judgment, however labeled, is one for alimony. 

2. So much of a Judgment in a divorce action as awards alimony is 

not a final Judgment, but is subject to revision and alteration; 
and in a proceeding to obtain such a revision an examination of 
a party under sec. 4096, Stats., may be had. 
SiEUECKEB, Kerwi.n, and Timlin, JJ., dissent. 

Appeal from an order of the circuit court for Milwaukee 
county: F. C. Eschweiler, Circuit Judge. Affirmed. 

The plaintiff and defendant were divorced in 1907. The 
findings determine as a fact that the plaintiff, being paid $75 
monthly during her life or until she remarries, shall have "no 
other or further right, title, interest, or claim of any kind or 
nature whatsoever against sard defendant in or to his prop- 
erty." Conclusions of law were made in accordance with the 
findings referred to, and the judgment provided that plaint- 
iff be paid monthly by the defendant, so long as she lived or 
until she remarried, $75 per month as a "final division and 
distribution of the estate, both real and personal, of the de- 
fendant, pursuant to the provisions of section 2364, Wis. 
Stats.," and that having the aforesaid sum plaintiff should 
have "no other or further right, title, interest, or claim of any 
kind whatsoever against said defendant or in or to his prop- 
erty, and that each and every right or interest which the 
plaintiff has in and to the property of the defendant be and 
the same is hereby divested." 

On April 28, 1915, the plaintiff procured an order to show 
cause why the judgment referred to should not be revised, al- 



22] • JANUAEY TERM, 1910. 357 



Norrls v. Norris, 162 Wis. 356. 



tered, and amended respecting the amount of alimony therein 
provided in a way more just and equitable to the plaintiff 
and why judgment should not be made and entered in said 
action providing adequate and fair alimony to the plaintiff, 
or why, in lieu thereof, there should not be a final division 
and distribution of the estate of the defepdant, both real and 
personal, between the parties to the action. In support of 
this order a petition was filed setting forth facts on which 
plaintiff relied to secure a modification of the provisions of 
the divorce judgment relating to what was alleged to be ali- 
mony. The defendant interposed an answer to this petition, 
in which he alleged that the judgment entered provided for a 
final division of his estate, and that there was no authority 
in law for revising or amending such judgment. In addi- 
tion thereto certain facts were set up tending to show that the 
provision of the original judgment was fair and ample under 
all circumstances. The plaintiff gave due notice of the ex- 
amination of the defendant as an adverse witness under sec. 
4096, Stats. The defendant then filed a petition praying 
for an order staying the proposed examination until further 
order of the court. This petition was based on the claim 
that the judgment of 1907 was a final one and that in any 
event an examination could not be had under sec. 4096 in a 
proceeding of this kind. An order was entered staying the 
examination pending the hearing on defendant's petition. 
The circuit court decided that the examination should pro- 
ceed, and from the order entered on such decision the de- 
fendant appeals. 

Lawrence A. Olwell, for the appellant. 

For the respondent there was a brief by Kronshage, Mc- 
Govem & Hannan, and oral argument by F. E. McGovem. 

Barker, J. A divorce judgment which only provides a 
monthly allowance for the wife, to terminate on her remar- 
riage or death, is not a final division of the husband's estate 



358 SUPREME COURT OF WISCONSIN. [Feb. 

Norris v. Norris, 162 Wis. 356. 

under sec. 2364, Stats., no matter how it is designated, but 
is a judgment for alimony which is subject to revision under 
sec. 2369. On this proposition the ease of Lolly v. Lally, 
152 Wis. 56, 138 N. W. 651, is adhered to under the rule of 
stare decisis. We do not wish to be understood as deciding 
that a circuit court may not fix a specific sum to be paid in 
instalments or in gross and render a final judgment under 
sec. 2364, although the amount fixed might even exceed the 
value of the property then possessed by the husband, nor is 
tlie Lally Case to be construed as so holding. What we do 
decide is, that where no definite sum in the aggregate is fixed 
by the divorce judgment and where the duration of the period 
over which payments are to extend is subject to the contin- 
gency of remarriage or death, such judgment, however la- 
beled, is one for alimony. 

The further point is made that an examination under sec. 
4096 can only be had at some time after the commencement 
of an action or proceeding and before judgment, and that in- 
asmuch as judgment was rendered in the divorce action in 
1907 the present application was made after judgment and 
that therefore the case is entirely outside of the statute. 
Among other things sec. 2369, Stats., provides: 

"After a judgment providing for alimony or other allow- 
ance for the wife and children, or either of them, or for the 
appointment of trustees as aforesaid the court may, from 
time to time, on the petition of either of the parties, revise 
and alter such judgment respecting the amount of such ali- 
mony or allowance and the payment thereof, and also re- 
specting the appropriation and payment of the principal and 
income of the property so held in trust, and may make any 
judgment respecting any of the said matters which such court 
might have made in the original action." 

So much of a judgment in a divorce action as awards ali- 
mony is not a final judgment, but is subject to revision and 
alteration. As to this portion of the judgment the court is 
as free to act on subsequent applications as it was originally. 



22] JANUARY TERM, 1916. 35d 

Norris v. Norris, 162 Wis. 356. 

When the existing judgment is amended, there is to all in- 
tents and purposes a new judgment for alimony, and we 
think it would be an extremely narrow and technical construc- 
tion of sec. 4096 to hold that it does not permit an examina- 
tion in a proceeding like the one before us. 
By the Court, — Order affirmed. 

The following opinions were filed March 13, 1916 : 

SiEBECKER, J. {dissenting), I am of the opinion that the 
original judgment of divorce in this action adjudges a final 
division and distribution of the husband's estate and hence 
cannot be modified in this proceeding. The grounds of my 
opinion are fully elaborated in the dissenting opinion of 
Mr. Justice Kekwin in the case of Lolly v, Lolly, 162 Wis. 
56, 138 N. W. 651. My judgment is that a court may, 
under sec. 2364, Stats., award a judgment of final division 
and distribution of a husband's estate whether he has any 
specific real or personal property or not. I consider that a 
husband's earning ability is treated under the adjudications 
of this and other courts as property for the purposes of a final 
division and distribution of his estate in a divorce action. 

Kerwin, J. (dissenting), I dissent from the opinion of 
the majority of the court. I think the case of Lolly v, Lolly , 
152 Wis. 56, 138 K W. 651, was incorrectly decided and 
that to follow the decision in that case is simply perpetuating 
an error. 

The rule of stare decisis is invoked in the majority opin- 
ion in the instant case, apparently as a justification for ad- 
hering to the Lolly Case. True, the rule of stare decisis ap- 
plies where the decision is of such long standing as to become 
a rule of property and where the overruling of it would be 
likely to work great mischief. No reason appears for adher- 
ing to the rule of stare decisis hera Harrington v. Pier, 



360 SUPKEME COUKT OF WISCONSIN. [Feb. 

Norris v. Norrls. 162 Wis. 356. 

106 Wis. 485, 493, 82 N. W. 345; Baker v. Madison, 62 
Wis. 137, 22 N. W. 141, 583; Van Valkenhurgh v. Milwau- 
kee, 43 Wis. 674; Hawks v. Pritzlaff, 61 Wis. 160, 7 N. W. 
303; Kneeland v. Milwavkee, 15 Wis. 454, 474; Pratt v. 
Brown, 3 Wis. 603; Whereatt v. Worth, 108 Wis. 291, 84 N. 
W. 441. 

It is held in the majority opinion in the instant case that 
an award of any sum either in gross or payable in instal- 
ments, if so denominated in the judgment, is final division 
whether there is sufficient property out of which the awai:d 
can be paid or not ; but that an award to a wife of a sum pay- 
able annually during her life or widowhood, though denomi- 
nated in the judgment as final division, is not a final division. 
To put it another way, the majority opinion holds that an 
award of any sum, no matter how small, payable monthly for 
any definite period is final division, if so declared in the 
judgment, while an award of a like sum payable monthly for 
the life of the wife where she has an expectancy of twenty- 
five years, more or less, or payment of such sum during 
widowhood, is not a final division. There is no authority 
under the statute governing alimony and final division for 
such distinction. The statute authorizes the court to award 
alimony or make final division and there is no limitation as 
to how this shall be done. The power to make final division 
includes the power to determine what shall be final division 
in the absence of restriction in the written law ; and there is 
none. 

In my opinion the decisions in Laily v, Lally, supra, and 
the instant case are out of harmony with every other decision 
of this court upon the subject. Hopkins v. Hopkins, 40 Wis. 
462 ; Thomas v. Thomas, 41 Wis. 229 ; Bacon v. Bacon, 43 
Wis. 197 ; Blake v. Blake, 68 Wis. 303, 32 N. W. 48 ; Canip- 
bell V. Campbell, 37 Wis. 206 ; Maxwell v. Sawyer, 90 Wis. 
352, 63 N. W. 283 ; Palica v. Palica, 114 Wis. 236, 90 N. W. 
165; Von Trott v. Von Trott, 118 Wis. 29, 94 N. W. 798; 



22] JANUARY TERM, 1916. 361 

Borkhardt M. & E. P. Co. y. Hudson, 162 Wis. 361. 

Kistler v. Kistler, 141 Wis. 491, 124 N. W. 1028 ; Brenger 
V. Brenger, 142 Wis. 26, 125 N. W. 109. 

I think Lally v. Lolly, supra, should be overruled and the 
judgment below in the instant case held to be a final division 
and distribution of property. 

TiMLiK, J., also dissented. 



BuBKHABDT MiLLiNG & Electkic Poweb Company, Re- 
spondent, vs. City of Hudson, Appellant 

December 8, 1915— February 22, 1916. 

Taxation: Recovery of illegal taxes: Payment of more than equitable 
share: Parties: Pleading: Public utility in several districts: Ap- 
portionment of assessed valuation: Proper ratio, 

1. An electric light and power company whose property and business 

extends into two or more taxing districts cannot maintain an ac- 
tion under sec. 1164, Stats., to recover a part of the taxes paid 
by it in one of such districts, on the ground that such taxes were 
based upon an improper apportionment among the districts of 
the assessed valuation of its property, unless it shall appear, not 
only that the company paid to the defendant more than the lat- 
ter's just portion of the whole tax, but also that — because of the 
higher rate in the defendant district, or for some other reason — 
the whole amount of the taxes paid by the company in all the 
districts was increased by such improper apportionment. 

2. All of the taxing districts interested in the apportionment should 

be made parties to such an action, so that the whole controversy 
may be disposed of therein. 

3. The objection that there is defect of parties may be taken by an- 

swer. 

4. Under sec. 1037c, Stats. 1911, where the property or business of a 

public utility mentioned in sec. 1037a extends into two or more 
taxing districts the ratio by which the proportion of the assessed 
valuation properly belonging to each district is to be determined 
is that expressed by taking as the numerator the sum of the 
property located and the business transacted in the district in 
question and as the denominator the total of the property and 
business in all the districts. 
SiEBECKEB, J., Win SLOW, C. J., and Marshall, J., dissent. 



362 SUPREME COURT OF WISCONSIN. [Feb. 

Burkhardt M. & E. P. Co. y. Hudson, 162 Wis. 361. 

Appeal from a judgment of the circuit court for St. Croix 
county: Geoboe Thompsox, Circuit Judge. Reversed. 

This action was brought in the county court of St Croix 
county, appealed to the circuit court for St. Croix county, 
and tried de novo there. 

The amended complaint set up the ownership of the elec- 
tric light and power plant situated in four districts, viz. city 
of Hudson, village of North Hudson, town of Hudson, and 
town of St Joseph; that the assessors of the four districts 
met and assessed the total value of the property at $75,000 
and apportioned the property among the four districts. The 
apportionment is set out at length and will be stated hereafter 
in the stipulated facts. It is also alleged that the rate of 
taxation in the city of Hudson for 1913 was thirty-two and 
one-half mills, in the town of Hudson ten and seven-tenths 
mills, in the town of St Joseph eleven mills, and in the vil- 
lage of North Hudson seventeen mills. The complaint fur- 
ther alleges that the method of apportioning the taxes was 
illegal and excessive and that plaintiff paid under protest 
$330.26 more than could have been assessed against him in 
the city of Hudson; that plaintiff demanded the $330.26, 
which was refused, and asks judgment for that amount with 
interest and costs. 

The defendant demurred to the complaint, which demur- 
rer was overruled. The defendant then answered admitting 
the assessment apportioned to the city of Hudson, defendant, 
and denied that said $330.26 levied by defendant was ex- 
cecsive, and denied generally the allegations of the complaint 
not admitted. And for a further answer the defendant al- 
leged that the village of North Hudson, town of Hudson, and 
town of St. Joseph were necessary parties to the action. 

The case was tried upon the following stipulated facts : 

"It is hereby stipulated for the purpose of the trial of this 
case, that the defendant, city of Hudson, is a municipal cor- 
poration organized and existing under and by virtue of the 
laws of the state of Wisconsin, and situated in the said St. 



22] JANUARY TERM, 1916. 363 

Burkhardt M. & E. P. Co. y. Hudson, 162 Wis. 361. 

Croix county, and that it is a city of the fourth class, or- 
ganized and existing under a special charter. 

^'That said plaintiff is a corporation organized and existing 
under and by virtue of the laws of the state of Wisconsin. 

"That said plaintiff company owns and operates an electric 
light and power plant consisting of two dams with flowage 
rights, two power houses, and two sets of generating machin- 
ery with poles and wires, transformers, meters, etc., and that 
its said electric light and power plant is situated in the fol- 
lowing four assessment districts, to wit : city of Hudson, vil- 
lage of North Hudson, town of Hudson, and town of St. 
Joseph, in said county of St. Croix. The power house and 
dams are located outside the limits of the city of Hudson, 

"That said electric light and power plant is owned and 
operated by said plaintiff and is not used or operated in con- 
nection with any street railway company. 

"That the above facts existed during the years 1912 and 
1913, and still exist. 

"That for the year 1913 said property of said plaintiff 
was assessable for general taxes under and by virtue of sec- 
tions 1037a and 1037c to 1037; of Wisconsin Statutes of 
1911. 

"That on the 20th day of June, 1913, the four assessors of 
said four assessment districts duly met at the office of the 
city clerk in the city of Hudson for the purpose of assessing 
the said electric light and power plant of said plaintiff for 
purposes of taxation, and they found and placed the total as- 
sessed valuation of said property at $75,000 and valued and 
assessed the same at that amount. 

"That in apportioning said property among the four said 
assessment districts they valued the property located in the 
city of Hudson at ♦$14,580, that amount being 19.44 per cent, 
of the total assessed valuation of $75,000. Thev found that 
the total business transacted by the company for the year 1912 
was $20,262, and it is admitted that that is the correct amount 
of the business transacted by the company in all four dis- 
tricts ; and it was found by said assessors, as the fact is, that 
$19,363 of said business was transacted in the city of Hud- 
son, and that said amount of business so transacted in the 
city of Hudson was 95.56 per cent, of the total business 
transacted by the company. The assessors added the per- 



864 SUPREME COURT OF WISCONSIN. [Feb. 

Burkhardt M. & E. P. Ck). v. Hudson, 162 Wis. 361. 

centage of property in the city of Hudson to the percentage 
of business transacted in the city of Hudson, that is, they 
added said 19.44 per cent, to said 95.56 per cent, which gave 
a total of 115 per cent, of both property and business in the 
city of Hudson. They divided that by two, which gave 57.5 
per cent., and apportioned to the city of Hudson 57.5 per 
cent, of the assessed valuation of $75,000, making an as- 
sessed valuation apportioned to the city of Hudson of 
$43,132, and the assessor of said city of Hudson placed upon 
the assessment roll of said city, against said plaintiff on ac- 
count of its electric light and power plant, an assessed valua- 
tion of $43,132, which assessment was arrived at by the 
method above stated. 

'^That on said assessed valuation there was placed upon 
the tax roll of the city of Hudson for said year of 1913, 
against said plaintiff company, a tax amounting to $1,401.79, 
and on the 15th day of January, 1914, said assessed valua- 
tion and said tax based thereon appeared upon the tax roll 
in the hands of the city treasurer of said city as a personal 
property tax against said plaintiff company because of its 
said electric light and power plant 

"That at said time there duly appeared on said tax roll of 
the city of Hudson $31.14 of taxes as a tax against said 
plaintiff on real estate belonging to said plaintiff situated in 
said city of Hudson. 

"That on said 15th day of January, 1914, said plaintiff 
claimed and asserted to said city treasurer that $330.26 of 
said alleged tax of $1,401.79 against said plaintiff on ac- 
count of said electric light and power plant was illegal and 
unjust, excessive and void, and on said day said plaintiff duly 
tendered and offered to pay to E. H. Streeter, the city treas- 
urer of said city, all of said taxes, both real and personal, ex- 
cept said amount of $330.26 claimed by said plaintiff to be 
excessive, illegal, and void, and on said day said treasurer re- 
fused to receive said tender and refused to permit said plaint- 
iff to pay the part of said tax admitted by said plaintiff to be 
legal, and refused to permit said plaintiff to pay any part of 
said taxes unless it paid the whole amount appearing upon 
said tax roll against said plaintiff, to wit, $1,432.93, and that 
on said 15th day of January, 1914, said plaintiff paid said 
city treasurer the whole amount of said tax appearing on said 



22] JANUAEY TEEM, 1916. 365 

Burkhardt M. & E. P. Co. v. Hudsom 162 Wis. 361. 

tax roll, to wit, $1,432.93, of which $330.26 was paid by said 
plaintiff to said treasurer and said city under protest and 
against its will. The said plaintiff claimed and asserted to 
said city treasurer that $330.26 of said alleged tax was ex- 
cessive, illegal, and void, and said plaintiff notified said city 
at the time it so paid said tax that it intended to and would 
in due time bring a proper action against said city for the 
purjk)se of recovering back to said plaintiff said $330.26 
claimed by said plaintiff to be excessive, ill^al, and void, 

"That on said 15th day of January, 1914, there was at- 
tached to said tax roll of said city of Hudson the warrant for 
the collection of said taxes as required by law, and at said 
time said city treasurer threatened said plaintiff that unless 
said tax was paid in full he would enforce the collection of 
taxes so appearing on said tax roll by levy upon said plaint- 
iff's property, a sufficient amount of which was situated in 
the city of Hudson out of which said tax could have been 
paid, and said plaintiff was forced to pay said tax, and the 
T^ole thereof, including said $330.26 claimed as excessive 
by it, in order to remove the lien of said taxes from its said 
real estate. 

"That on or about the 0th day of February, 1914, said 
plaintiff duly filed with the city clerk of the city of Hudson 
a claim in due form against said city for the sum of $330.26 
on account of said alleged unjust, illegal, and excessive tax 
which said plaintiff company paid said city of Hudson, 
which said claim was duly acted upon by the common coun- 
cil of said city of Hudson a short time thereafter, and the 
same was disallowed prior to the commencement of this ac- 
tion. 

"All of the above facts are hereby stipulated to be true for 
the purposes of this action, with the right, however, reserved 
in either party to show on the trial that any or all of said 
facts are untrue, and with the right to correct any statement 
therein that may be incorrectly stated. It is agreed that the 
rate of taxation in the city of Hudson for 1913 was thirty- 
two and one-half mills on the dollar of assessed valuation." 

The court found the facts in accordance with the fore- 
going stipulation and ordered judgment for plaintiff against 
the defendant for $330.26 with interest and costs. Judg- 



366 SUPREME COURT OF WISCONSIN". [Feb. 

Burkhardt M. & E. P. Co. v. Hudson, 162 Wis. 361. 

ment was entered accordingly, from which this appeal was 
taken. 

Chas. A. Cross, for the appellant. 

There was also a brief in behalf of the Wisconsin Tax Com- 
mission, and the cause was argued orally by the Attorney 
General. 

Spencer Haven, for the respondent. 

Kerwin, J. 1. It is contended by* appellant that the ac- 
tion cannot be maintained because it does not appear that 
the plaintiff paid more taxes than it was equitably bound to 
pay. Even if it be conceded that it is established that the 
plaintiff paid more taxes in the defendant district than the 
just portion of the whole tax due to defendant, it does not ap- 
pear that it paid more than it otherwise would have paid. 
If the rate of taxation were the same in the defendant citv as 
in the other three districts, the plaintiff cannot complain, be- 
cause the improper distribution of the whole valuation be- 
tween the different districts could not prejudice the plaintiff 
or increase the whole amount of its tax. If the valuation in 
defendant city were $16,409 too high, the aggregate valua- 
tion in the other three districts would be that amount lower, 
since it is stipulated that the aggregate amount of property 
in all the districts is $75,000. 

The rate in each district is alleged in the complaint. But 
these allegations are denied by the answer. The rate in de- 
fendant city is established in the case, but the rate in the 
other districts is not. So we are unable to sav from the rec- 
ord before us what the rate in the other districts is. If it is 
the same as in defendant city the plaintiff has made no case. 
True, it is alleged in the complaint that the rate in the other 
districts is about one third of the rate in defendant citv, but 
there is no proof of this fact. 

The statute, sec. 1164, under which this action is brought 
provides that no claim shall be allowed and no action main- 



22] JANUARY TERM, 1916. 367 



Burkhardt M. & E. P. Co. t. Hudson, 162 Wis. 361. 

tained unless it shall appear that the plaintiff has paid more 
than its equitable share of the taxes. It does not appear from 
the record in the instant case that the plaintiff has paid more 
than its equitable share of the taxes. 

2. It is further contended by appellant that the other assess- 
ment districts should have been made parties to the action. 
Counsel for respondent answers this contention by saying that 
the demurrer was not directed to defect of parties and there- 
fore did not reach the question, and that the objection was 
raised in no other manner. 

But the objection that there was defect of parties was raised 
by the answer and that was sufficient under sec. 2654, Stats. 
We think the other districts, namely, village of North Hud- 
son, town of Hudson, and town of St. Joseph, were proper 
parties to the action. The bringing in of all parties inter- 
ested in a controversy in order to avoid circuity of action 
under the statutes of this state and decisions of this court is 
favored. Sees. 2610, 2656a^ Stats.; Washburn v. Lee, 128 
Wis. 312, 320, 107 N. W. 649 ; Hurley v. Walter, 129 Wis. 
508, 511, 109 X. W. 558. The court has a broad discretion- 
ary power to bring in parties. Schmuhl v, Milwaukee E. R. 
i& L. Co. 156 Wis. 585, 146 N. W. 787; Kresge v. Maryland 
C. Co. 154 Wis. 627, 143 N. W. 668 ; Hemenway v. Beecher, 
139 Wis. 399, 402, 121 K W. 150; Swanby v. Northern 
State Bank, 150 Wis. 572, 137 N. W. 763. We think all the 
districts should be made parties in the present action and 
thus dispose of the whole controversy. It follows from what 
has been said that the judgment must be reversed. 

3. The important question in the case, how-ever, is the ap- 
portionment between the four districts, and this question 
should be decided so that upon a new trial all questions may 
be settled and further litigation avoided. 

It appears from the undisputed facts and the court below 
found : 

"That on the 20th day of June, 1913, the four assessors of 



368 SUPKEME COURT OF WISCONSIN. [Feb. 

Burkhardt M. & E. P. Co. v. Hudson, 162 Wis. 361. 

said four assessment districts duly met at the office of the 
city clerk in said city of Hudson for the purpose of assessing 
said electric light and power plant of said plaintiff for pur- 
poses of taxation and found and placed the total assessed val- 
uation of said property at $76,000 and valued and assessed 
the same at that amount. 

"That in apportioning said property among the four said 
assessment districts they valued the property located in the 
city of Hudson at $14,580, that amount being 19.4:4: per cent, 
of the total assessed valuation of $75,000. They found that 
the total business transacted by the company for the year 
1912 was $20,262, and that is the correct amount of the busi- 
ness transacted by the company in all four districts; and it 
was found by said assessors and the court here finds that 
$19,363 of said business was transacted in the city of Hud- 
son, and that said amount of business so transacted in the 
city of Hudson was 95.56 per cent, of the total business trans- 
acted by said company. That said assessors added the per- 
centage of property in the city of Hudson to the percentage 
of business transacted in the city of Hudson; that is, they 
added said 19.44 per cent, to said 95.50 per cent., which gave 
a total of 115 per cent, of both property and business in the 
city of Hudson, ■ They divided that amount, to wit, 115 per 
cent, by two, which gave 57.5 per cent., and apportioned to 
the city of Hudson 57.5 per cent, of the assessed valuation of 
$75,000, making an assessed valuation apportioned by them 
to the city of Hudson of $43,132, and the assessors of said 
city of Hudson placed upon the assessment roll of said city of 
Hudson against said plaintiff on account of its said electric 
light and power plant an assessed valuation of $43,132, which 
assessment was arrived at by the method above stated. 

"That on said assessed valuation there was placed upon the 
tax roll of the city of Hudson for said year 1913, against said 
plaintiff company, a tax amounting to $1,401.79, and on the 
15th day of January, 1914, said assessed valuation and said 
tax based thereon appeared upon the tax roll in the hands of 
the city treasurer of said city as a personal property tax 
against said plaintiff company because of its said electric 
light and power plant." 

It is clear that the method of apportionment adopted by 



22] JANUARY TERM, 1916. 369 

Burkhardt M. & E. P. Co. t. Hudson, 162 Wis. 361. 

the assessors was not in compliance with the statute. Sec. 
1037c, Stats. 1911, is as follows: 

"If the property or business of any such person, company 
or corporation extends into two or more districts the assessors 
of all the assessment districts in which any part of such prop- 
erty is located shall meet and assess all the property of such 
person, company or corporation, and extend on the assessment 
rolls of their respective districts the proportion of the assessed 
valuation thereof properly belonging to each. Such propor- 
tion shall be determined by the ratio which the property lo- 
cated and the business transacted in each district bears to the 
total property and business of such person, company or cor- 
poration. The amount so assessed shall be subject to the 
same tax rate as other property in said district." 

The assessors found that the total property of the plaintiff 
located in the city of Hudson was $14,580, that the total busi- 
ness transacted by the company in the city of Hudson was 
$19,363, aggregating $33,943 total property located and busi- 
ness done in the city of Hudson, The assessors also found 
that the total assessed valuation of the plaintiffs property in 
the four districts was $75,000 and the total business done 
$20,262, making a total of property and business in the four 
districts of $95,262. Under the method of apportionment 
by the plain provisions of the statute the ratio should be ob- 
tained as follows: $33,943 the numerator and $95,262 the de- 
nominator of the fractional part of the total assessed valua- 
tion, $75,000, which should be apportioned to the city of 
Hudson. This fraction reduced to a decimal gives 35.63 
per cent, of the total assessed valuation which should be ap- 
portioned to the city of Hudson. Thirty-five and sixty-three 
hundredths per cent, of $75,000 gives the amount which should 
be assessed to the city of Hudson as $26,722. 50. The assessors 
placed the amount at $43,132, an excess of about $16,409. 
It was stipulated and found that the rate of taxation in the 
city of Hudson for the year 1913 was thirty- two and one-half 
mills on the dollar. Thirty-two and one-half mills of the ex- 
VOL, 162 — 24 



370 SUPEEME COUKT OF WISCONSIN. [Feb^ 

Burkhardt M. & E. P. Co. v. Hudson, 162 Wis. 361. 

cess of assessment in the city of Hudson would amount to 
about $533. Obviously the plaintiff did not consider that it 
was entitled to this amount because judgmei^ was taken for 
only $330.26. 

All the facts were admitted except the rate of taxation in 
the three districts not parties to the action. The material 
question here, therefore, is the proper method of apportion- 
ment, and the court is of opinion that the method adopted by 
the court below was the correct method and in accordance 
with the statute. The method adopted by the assessors does 
not determine the ratio which the property located and the 
business transacted in the city of Hiidson bears to the whole 
property and business done. The language of the statute, 
'T)y the ratio which the property located and the business 
transacted in each district bears to the total property and 
business,'^ is plain and unambiguous, and the court cannot 
disregard it. 

It follows from what has been said that on the main propo- 
sition, namely, the apportionment, the judgment of the court 
below was correct, but because of other errors committed the 
judgment must be reversed and the other districts brought in 
by proper amendment and made parties to the action, to the 
end that their rights may be determined and such judgment 
rendered as shall settle all the rights of the four districts in- 
volved in the matter. 

By the Court. — The judgment of the court below is re- 
versed, and the cause remanded for further proceedings ac- 
cording to law and in accordance with this opinion. The ap- 
pellant to recover costs in this court. 

SiEBECKER, J. {dissenting). The trial court's construc- 
tion of sec. 51.44, Stats. 1915, and the construction put upon 
it by the Wisconsin tax commission differ very materially, 
and the operative effect of the statute under these two con- 
structions produces widely different results in the amounts 



22] JANUARY TERM, 1916. 371 



Burkhardt M. & E. P. Co. v. Hudson, 162 Wis. 361. 

apportioned to the taxing distriets into which the property 
and business of the utility extend. This difference in the 
result is shown in the assessment of the plaintiff's utility for 
the year here in question in the city of Hudson, Under the 
tax commission's construction of the law, $43,132 of the as- 
sessed valuation of plaintiff's plant was apportioned to the 
city of Hudson, and under the circuit court's construction of 
the law only $26,722.50 of such valuation is apportioned to 
the city of Hudson, resulting in a difference in plaintiff's tax 
in the city of Hudson for the year 1913 of $533.30. The 
tax commission has construed the law as it did in this in- 
stance since its enactment and applied it as so construed for 
four years. Consequently if this assessment is erroneous then 
three other assessments are erroneous. The commission's 
brief informs us that their method of apportionment has been 
carried out for four years in all assessments throughout the 
state, amounting to at least 2,000 district assessments. It 
seems to me this practical construction of the law must be 
followed by the courts, if it is permissible, and thus avoid the 
perplexing and disastrous consequences of overturning the 
2,000 or more tax levies and the tax payments in the different 
taxing districts involved throughout the state. If a statute 
in its administration has received a permissible and reason- 
able interpretation, then the courts adopt and follow that in- 
terpretation though it may not be in harmony with the mean- 
ing which the court finds the legislature had in mind. I am 
of the opinion that there is no good ground for holding that 
the tax commission gave this statute an interpretation out of 
harmony with or contrary to the natural and ordinary mean- 
ing of its terms. Sec. 51.43, Stats. 1915, declares that the 
property of water, light, heat, and power plants conducted as 
public utilities shall be deemed personal property for the pur- 
poses of taxation and shall be assessed as a single item. Sec. 
51.44 provides for the assessment of such property, when lo- 
cated in two or more assessment districts, by the assessors of 



372 SUPREME COURT OF WISCONSIN. [Feb. 



Burkhardt M. & E. P. Co. v. Hudson, 162 Wis. 361. 

the districts at a joint niceting^ and that the assessors shall 
"extend on the assessment rolls of their respective districts 
the proportion of the assessed valuation thereof properly be- 
longing to each. Such proportion shall be determined by the 
ratio which the property located and the business transacted 
in each district bears to the total property and business of 
such person, company or corporation." The words of the 
statute, to my mind, signify that the proportion shall be the 
ratio which the property located in each district and the busi- 
ness transacted in each district bears to the total property and 
the total business. What is this ratio? The business re- 
ferred to obviously means the gross earnings, and so the com- 
mission and the circuit court interpreted the word. How 
then is "the proportion of the assessed valuation thereof prop- 
erly belonging to each" district to be calculated ? If the ap- 
portionment be made upon the ratio which the total of the 
property and the gross earnings of each district bear to the 
total of the property and the gross earnings of the entire 
plant, then the districts where there are no earnings whatever 
and the districts where the earnings are produced are given 
an equal proportionate share of the assessed value thereof. 
The object of providing a change in the method of assessment, 
as stated by the commission to the legislature, was to provide 
a method of apportionment of the assessed value of the entire 
plant whereby the assessment district which produced the 
earnings should receive such a distributive share of the whole 
tax as the assessed property and the assessed gross receipts of 
each district jointly produced. This statute was intended 
to increase the tax receipts from these plants in the assess- 
ment districts which produced the earnings of the business, 
and this for the reason the commission urged upon the legis- 
lature, that the revenue-producing districts established the ac- 
tual value of the property of the entire physical plant and 
hence the benefit of the tax due to earnings ought in equity 
to be received by the districts that paid them. The tax com- 



22] JANUAKY TERM, 191G. 373 



Burkhardt M. & E. P. Co. y. Hudson, 162 Wis. 361. 

mission administered the law so as to accomplish this result 
so far as practicable, and the administration of the law as 
here interpreted frustrates this purpose and object of the leg- 
islature, in that it transfers the benefit of the tax receipts 
from the district where the business is done to the district 
where there is no business. It seems logical, reasonable, and 
just in the light of the history of the legislation on the sub- 
ject that the factor of gross earnings should be treated as of 
equal importance with the factor of the physical property in 
determining a just distribution of the taxes realized from the 
enterprises, and that the tax conmiission's method of appor- 
tioning the tax was calculated on a ratio which complied 
with the terms of the statute and which accomplished the re- 
sult intended by the legislature. But it is urged that the 
commission's interpretation of the statute does violence to the 
language used and is therefore not a permissible interpretation 
of the statute. The phrasing of the statute is, "Such propor- 
tion shall be determined by the ratio which the property lo- 
cated and the business transacted in each district bears to the 
total property and business of such person, company or cor- 
poration.*^ The claim is that the terms in their grammati- 
cal construction and their ordinary significance express but 
the idea, namely, that the proportion must be the ratio which 
the property and the business in each district, when added 
together, bear to the total sum of the property and business 
of the whole plant. These terms of the statute, I think, do 
not in their ordinary use and meaning convey only such a re- 
stricted and narrow meaning and should not be limited in 
their meaning to this precise mathematical formula adopted 
by the court. They logically and reasonably permit of the 
interpretation that the proportion shall be determined by the 
ratio which the property and the gross earnings in each dis- 
trict, taken separately, respectively bear to the property and 
gross earnings of the whole plant, and that the result thus ob- 
tained fixes the percentage for apportioning the total tax ao- 



374 SUPREME COURT OF WISCONSIN. [Feb, 

Chicago, M. & St. P. R. Co. v. Rock County S. Co. 162 Wis. 374. 

cording to the taxable valuation of property and business in 
each district. This gives equal significance to the physical 
property and the gross earnings in determining the assessed 
value of the plant in the several districts into which it ex- 
tends. Since this is, in my opinion, a proper and reasonable 
interpretation of the language of the statute, it seems to me 
that the court, in the light of the history of this legislation 
showing the intent of the legislature in enacting the law and 
the practical construction given it by the tax commission in 
harmony therewith, should follow the practical administra- 
tion given it by the tax commission, which would prevent the 
disastrous results of invalidating the assessments in a large 
number of taxing districts in the state. I consider that the 
plaintiff's taxes were apportioned by the commission accord- 
ing to law and that plaintiff's complaint in this action should 
be dismissed. 

WiNSLOw, C. J., and Marshall, J. We concur in the fore- 
going dissenting opinion of Mr. Justice Siebeckbe. 



Ohicago, Milwaukee & St. Paul Railway CoMPAmr, Re- 
spondent, vs. Rock County Sugae Company, Appel- 
lant 

January 12 — February 22, 1916. 

Interstate commerce: Regulation: Constitutional law: Federal au- 
thority paramount: Conflicting state statutes: Railroads: De- 
murrage: "Additional free time*' for unloading cars: Statutes: 
Construction: Partial or total invalidity: Burden on interstate 
commerce, 

1. The federal government is the paramount authority in the regula- 
tion of interstate commerce; the laws of Congress on that sub- 
ject supersede and override all state statutes conflicting there- 
with ; and where the federal government, acting through its con- 



22] JANUARY TERM, 1916. 375 

Chicago, M. & St. P. R. Ck). v. Rock County S. Co. 162 Wis. 374. 

stitutional agencies, has fully covered the subject by regulations 
of its own, there is usually no room for further state regulation. 

2. Sec. 1797 — 10m, Stats., providing that the consignee of carload 

freight "shall be allowed for unloading without car service or 
demurrage being assessed, additional free time equivalent to 
the number of days in excess of seventy-five miles per day of 
twenty-four hours consumed by the common carrier in trans- 
porting said freight from point of shipment to point of destina- 
tion," is invalid as to interstate shipments for the reason that it 
attempts to add variable time, depending upon length of haul 
and time occupied in transit, to the time for unloading cara 
fixed in the demurrage regulations filed with and approved by 
the interstate commerce commission pursuant to the federal act 
to regulate commerce. 

3. Mere general words in a state statute will ordinarily be restrained 

so as to include only such subjects as the legislature had Juris- 
diction to include; but where the plain meaning of the statute is 
that it shall apply equally to a subject over which the legislature 
has Jurisdiction and one over which it has no Jurisdiction, and 
such subjects are so interrelated that it is reasonably apparent 
that the regulation of one alone in the manner and to the extent 
specified in the statute would not have been attempted, then the 
statute, being invalid in its main purpose, must be held wholly 
nugatory. 

4. Under the foregoing rule, in view of the interrelation of state and 

interstate freights and the impracticability of having different 
periods of "free time" for unloading, sec. 1797 — 10m, Stats., is 
held wholly void, not on)y as to interstate commerce but as ta 
local or state commerce as well. 
[5. Whether, if said section were upheld as to local or state com- 
merce, it would impose a burden on interstate commerce by its 
tendency to expedite the movement of intrastate freight at the 
expense of interstate freight, not decided.] 

Appeal from a judgment of the circuit court for Rock 
county: Geoboe Grimm, Circuit Judge. Affirmed. 

For the appellant there was a brief by Jeffris, Mouat, Oes- 
treich & Avery, and oral argument by 0. A, Oestreich. 

For the respondent there was a brief by Lines, Spooner, 
Ellis & QuarleSj and oral argument by Louis Quarles. 

Timlin, J. This action was brought to recover $2,720 de- 
murrage charges accruing on local or state shipments and 



376 SUPKEME COURT OF WISCONSIN. [Feb. 

Chicago, M. & St. P. R. Co. v. Rock County S. Co. 162 Wis. 374. 

^321 of like charges upon interstate shipments to the defend- 
ant. The plaintiff had judgment on both demands for 
$335. G8 damages and costs. An appeal by the plaintiff from 
this judgment was withdrawn and the case is heard on the 
appeal by defendant. The only question raised by that ap- 
peal is whether the statute, sec. 1Y97 — 10m, is valid. If 
invalid, the judgment should not be disturbed. If valid, 
the judgment must be reversed. That statute reads as fol- 
lows: 

**1. In all cases where common carriers move carload 
freight from point of shipment to point of destination at an 
average rate of less than seventy-five miles for each twenty- 
four hours, consignee shall be allowed for unloading without 
car service or demurrage being assessed, additional free time 
equivalent to the number of days in excess of seventy-five 
miles per day of twenty-four hours consumed by the common 
carrier in transporting said freight from point of shipment to 
point of destination. 

"2. For the purpose of determining whether or not the con- 
signee shall be entitled to additional free time as provided for 
in subsection 1 of this section, the time consumed bv the com- 
mon carrier in transporting the freight shall b^n to run at 
twelve o'clock midnight of the day oh which the freight is de- 
livered to the common carrier at point of shipment and shall 
-end at twelve o'clock midnight of the day on which the car is 
placed at a point accessible to the consignee for the purpose 
of unloading. 

"3. The provisions of this section shall apply to carload 
freight transported by one or more common carriers from 
point of shipment to point of destination. Provided, that 
whenever any railroad company shall notify the railroad com- 
mission of Wisconsin that conditions have arisen on its line 
of railroad over which it has no control and is [not ?] liable 
for, stating in said notification the facts of the case, the rail- 
road commission may, if it deems the facts such as to war- 
rant, issue its order suspending the operation of this section 
not to exceed thirty days, but may continue such order from 
time to time as the conditions may warrant. The consignee 
must use due and reasonable diligence in unloading all cars, 



22] JANUAEY TERM, 1916. 37T 

Chicago, M. A St. P. R. Co. v. Rock County S. Co. 162 Wis. 374. 

and any failure to do so shall subject the consignee to a like 
supervision by the railroad commission. It is further pro- 
vided that when conditions warrant the railroad commission 
shall have power to promulgate reasonable and just rules and 
regulations to enforce or modify the provisions of this sec- 
tion." 

The statute purports to include all cases of shipment, 
whether local or interstate; it adds variable time, depending 
upon length of haul and time occupied in transit, to the time 
for unloading cars fixed by rule of the plaintiff approved by 
the Wisconsin railroad commission and by the interstate com- 
merce commission; it authorizes the railroad commission of 
Wisconsin to suspend the operation of that section of the stat- 
ute as to the transportation of carload freight by one or more 
common carriers from point of shipment to point of destina- 
tion, and it contains other requirements not necessary to be 
considered. 

From the viewpoint of the economist this statute is quit© 
absurd. Delay in the transmission of freight cars, which is 
an evil injuriously affecting the shipper, the consignee, and 
the public, is to be corrected by retaliatory delay. Pub- 
lic interest demands that cars be actively engaged and readily 
obtainable and that the carrier be not required to purchase 
and use a number of cars disproportionate to the business 
done by it, for that must ultimately result in advanced rates 
of carriage on account of greater capital investment. Simi- 
lar to this statute, only more obvious in its absurdity, would 
be a law to the effect that if one killed my cow I might kill 
one of his. Such a law might have some tendency to prevent 
him killing my cow, but the net result would be that the col- 
lective wealth is diminished by the value of two cows and the 
supply of milk to the public diminished correspondingly. 
The retaliatory features of this act, by which it appears that 
if the carrier delay the consignee and keep the car and its 
contents out of commerce for a time the consignee will have 



378 SUPREME COURT OF WISCONSIN. [Feb. 

Chicago, M. & St. P. R. Co. v. Rock County S. Co. 162 Wis. 374. 



the right to delay the carrier and keep the car out of com- 
merce for another time, would have as against the carrier 
some preventive tendency, but the public would be the loser, 
and there are other more effective and less wasteful modes of 
prevention. 

Courts mav not refuse to enforce a statute merelv because 
it offends against economic principles, consequently in re- 
viewing the decision of the learned circuit court refusing to 
enforce the statute we must remove the subject from the test- 
ing chamber of the "dismal science" and into the "gladsome 
light of jurisprudence." Here, if we find the statute in con- 
flict with a paramount rule of law, we vindicate and uphold 
the latter by refusing to uphold the former, and this neces- 
sary result is sometimes loosely spoken of as "declaring the 
statute unconstitutional." The federal governjnent is the 
paramount authority in the regulation of interstate com- 
merce, and the laws of Congress on that subject supersede and 
override all state statutes conflicting therewith. Also where 
the federal government, acting through its constitutional 
agencies, has fully covered the subject by regulations of its 
own, there is usually no room for further state regulation. 

Sec. 1 of the act to regulate commerce, approved Febru- 
ary 4, 1887, as amended by sec. 7, ch. 309, 36 U. S. Stats, at 
Large, 539, provides that the term "transportation" shall in- 
clude all services in connection with the receipt, delivery, and 
handling of property transmitted. The carrier is required 
to establish, observe, and enforce just and reasonable regula- 
tions regarding the delivery of property, and these regula- 
tions filed with the interstate commerce commission are law- 
ful until set aside. Further, the demurrage rules of the 
American Railwav Association were, bv the interstate com- 
merce commission bulletin of June 3, 1912, approved sub- 
ject to the right to examine and disapprove later on complaint 
made. Mich. Cent. R. Co. v. Mich. R. R. Comm. 183 Mich. 6, 
148 ]Sr. W. 800; Conference Ruling No. 223, Bulletin No. 5, 



22] JANUAKY TERM, 1916. 379 

Chicago, M. & St. P. R. Co. v. Rock County S. Co. 162 Wis. 374. 

Interstate Comm. Comm. ; Barnes, Interstate Transp. p. 447 ; 
Berwind'White C. M. Co. v. C. & E. R. Co. 235 U. S. 371, 
35 Sup. Ct. 131 ; PennsT/lvania Co. v. U. S. 236 U. S. 351, 
35 Sup. Ct. 370; Texas & P. B. Co. v. Interstate Comm. 
Comm. 162 U. S. 197, 16 Sup. Ct 666; Chicago, B. I. & P. 
B. Co. V. Eardwich F. E. Co. 226 U. S. 426, 33 Sup. Ct 
174 ; 8t. Louis, I. M. £ 8. B. Co. v. Edwards, 227 U. S. 
265, 33 Sup. Ct 3G2; State v. C, M. <& St. P. B. Co. 136 
Wis. 407, 117 N. W. 686, 19 L. R. A. n. s. 326. 

The federal act to regulate commerce requires that carriers 
shaH puhlish, post, and file all terminal charges which in any. 
wise change, affect, or determine the value of the services 
rendered to the shipper or consignee, and all such charges 
hecome a part of the "rates and charges" which the carrier 
shall require, demand, collect, or retain. Such terminal 
charges include demurrage charges, which are not within the 
jurisdiction of state authorities. Peale v. Central B. Co. of 
N. J. IS Int. Comm. Comm. Rep. 25. The very words of 
the statute, "additional free time," must, with reference to 
interstate shipments, be taken to mean additional to that 
specified in the schedules on file with the interstate commerce 
commission. Congress has acted in the matter of regulating 
this feature of interstate commerce and that action excludes 
further or additional regulation covering the same subject by 
the state legislature. State v. C, M. & St. P. B. Co. 136 
Wis. 407, 117 N. W. 686. This regulation, by adding "ad- 
ditional free time," conflicts with the regulation made as de- 
scribed pursuant to the laws of the United States. State v. ' 
C.J M. & St. P. B. Co., supra. The question then arises 
whether the legislature intended that this act should be in 
force as to local or state commerce only. The statute is mani- 
festly aimed at delays at the point of shipment, at transfer 
points between that and the destination of the freight, and 
delays in large yards where the freight is delivered to be af- 
terwards distributed on the various sidetracks to the several 



380 SUPREME COURT OF WISCONSIN. [Feb. 



Chicago, M. & St. P. R. Co. v. Rock County S. Co. 162 Wis. 374. 



consignees. It therefore affects interstate commerce princi- 
pally. The actual rate of travel between the point of ship- 
ment and point of destination is not intended to be acceler- 
ated by this law, because no railroad train which keeps moving 
travels less than seventv-five miles in twenty-four hours. The 
delays by snow blockades or washouts may be considered neg- 
ligible. One effect of upholding this law as to local or state 
commerce would be to place a premium upon expediting from 
the points of shipment, transfer points, or from the large yards 
to the consignee intrastate freight as against interstate freight. 
The railroad would naturally deliver the state or local freight 
first so as to shorten the time for the consignee to hold the car 
without demurrage charges. Another effect which the law 
would have would be to induce the consignee, after delivery, 
to imload his interstate freight first. Further "free time'' 
for unloading means more difficulty in obtaining cars for in- 
terstate as well as for local transportation. State and inter- 
state freight are carried in different cars of the same train 
and sometimes in the same car. While the present mode of 
switching cars obtains, loci 1 freight must be moved in order 
to distribute interstate freight, and vice versa. The interre- 
lation of state and interstate freights, the impracticability of 
having different spaces of "free time" for unloading, taken 
in connection with the general words in the act, tend to show 
that it was not intended that the act might be upheld as to 
state or local freight if invalid as to interstate freight. 
There is nothing in the words of the act, or in the subject to 
Which the act applies, which would authorize us to hold that 
there is a separable portion of the act applicable to local or 
state commerce which could be upheld notwithstanding the 
invalidity of the act in general. 

A comparison of the decision in Trade-Mark Cases, 100 
U. S. 82, and Waters-Pierce Oil Co. v. Texas, 177 U. S. 28, 
20 Sup. Ct. 518, with the distinction noted in the last men- 
tioned case makes this point of law perfectly clear. Mere 



22] JANUARY TEEM, 1916. 381 



Chicago, M. & St. P. R. Co. v. Rock County S. Co. 162 Wis. 374. 

general words in a statute literally including cases over 
which the legislature had no jurisdiction may be limited to 
cases where the legislature had power to act if that inten- 
tion of the legislature can be derived from a consideration 
of other language in the statute, its subject matter, the evils 
intended to be remedied thereby, and the practicability of 
separating the invalid from the valid portions of the statute. 
Mere general words will ordinarily be restrained so as to in- 
clude only such subjects as the state legislature had jurisdic- 
tion to include. See Revisor's Notes to sub. 10, sec. 17706^ 
Stats. All statutes are in some degree limited by this con- 
sideration. It is not necessary to specify in a state statute 
that it is limited to persons, property, or transactions within 
the state. But where the plain meaning of the statute is that 
it shall apply to these matters over which the state legislature 
has jurisdiction and equally to these matters over which the 
state legislature has no jurisdiction, and these subjects are so 
interrelated that it is reasonably apparent that the legislature 
would not have attempted the regulation of one alone in the 
manner and to the extent specified in the statute, then the 
statute, being invalid in its main purpose, must be held 
wholly nugatory. Waters-Pierce Oil Co. v. Texas, supra; 
Ashland L. Co. v. Detroit S. Co. 114 Wis. 66, 78, 89 N". W. 
904; Elwell v. Adder M. Co. 136 Wis. 82, 116 N. W. 882, 
and cases cited; Chicago T. & T. Co. v. Bashford, 120 Wis. 
281, 284, 97 N. W. 940; Security Mut, L. Ins. Co. v. Frew- 
itt, 202 U. S. 246, 249, 26 Sup. Ct. 619 ; Sargent v. Rut- 
land R. Co. 86 Vt. 328, 85 Atl. 654. 

It might be that this law, if upheld as to local or state com- 
merce, would impose a burden on interstate commerce by its 
tendency to expedite the movement of intrastate freight at 
the expense of interstate freight, but we do not find it neces- 
sary to decide that point. We prefer to rest this decision on 
the ground that the statute is invalid as to interstate com- 
merce and that the provisions relative to local or state com- 



382 SUPEEME COURT OF WISCONSIN. [Feb. 

Chicago tt N. W. R. Co. V. Rock County S. Co. 162 Wis. 382. 

merce, covered by the same general words, included in the 
same provisions, and subject to the same duties do not, taking 
into consideration the words of the statute and the subject 
matter of regulation, constitute a separate or severable por- 
tion of the statute which might surviva 

Other points of invalidity alleged need not be noticed. It 
follows that the judgment of the circuit court should be af- 
firmed. 

By the Court. — Judgment affirmed. 



-Chicago A Nobthwestebn Railway Company, Respondent, vs. Rock 

County Suoab Company, AppeUant. 

January 12— February 22, 1916. 

Chicago, M, d St. P, R. Co, v. Rock Co, 8, Co., ante, p. 374, foUowed.. 

Appeal from a judgment of the circuit court for Rock county: 
George Grimm, Circuit Judge. Affirmed. 

For the appellant there was a brief by Jeffris, Mouat, Oestreich d 
Avery, and oral argument by O. A. Oestreich. 

For the respondent there was a brief by Lines, Spooner, Ellis d 
Quarles, and oral argument by Louis Quarles. 

Timlin, J. This action was brought to recover $848 demurrage 
charges accruing on local or state shipments and $411 of like charges 
upon interstate shipments to the defendant. This case is in all other 
respects like the case of Chicago, M. d 8t. P. R. Co. v. Rock Co. 8. Co.^ 
ante, p. 374, 156 N. W. 607, and is ruled thereby. 

By the Court. — Judgment affirmed. 



22] JAXUARY TERM, 1016. 383 

Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 



Wisconsin Telephone Company, Appellant, vs. Railroad 
Commission of Wisconsin and others, Respondents. 

January 14 — February 22, 1016. 

Telephone companies: Physical connection, when required: Railroad 
commission: Powers: Review of orders: Burden of proof: "Pub- 
lic convenience and necessity:'* "Irreparable injury:" Constitu- 
tional law: Taking of property: Compensation: Prescribing con- 
ditions of connection: Preventing loss: Extra toll charges: Po- 
lice power. 

1. Under sec. 1797m — 4, Stats. 1911, a physical connection between 

telephone systems may be ordered only when public convenience 
and necessity require it and where it will not result in irrep- 
arable injury to the owners or users of the facilities of the sys- 
tems nor in substantial detriment to the service. 

2. In an action to set aside an order of the railroad commission di- 

recting a physical connection between telephone systems, the 
burden is on the plaintiff, under sec. 1797m — 70, Stats., to show 
by clear and satisfactory evidence that such order was unrea- 
sonable or unlawful. 

3. The word "necessity" is relative rather than absolute, and its 

meaning in a given case must be ascertained by reference to the 
context and to the objects and purposes of the statute in which 
it is found. In statutes relating to regulation of public utilities 
it will be construed to mean not absolute but reasonable neces- 
sity. 

4. A physical connection between two telephone systems is required 

by "public convenience and necessity" within the meaning of 
sec. 1797m — 4, Stats. 1911, if there is a strong or urgent need for 
such connection. 

■5. In an action to set aside an order of the railroad commission re- 
quiring such a connection it is held that the finding of the com- 
mission that necessity existed therefor is not shown to be wrong 
or unreasonable by clear and satisfactory evidence. 

€. The words "irreparable injury" in sec. 1797m — 4, Stats. 1911, are 
not used in the sense in which they are commonly used in 
equitable actions, nor is the word "injury" used in its strict 
legal sense as meaning a violation of a legal right; but the phrase 
denotes a substantial financial loss which cannot be recovered 
or made good. 

7. Under said section the railroad commission is not authorized to 
order a physical connection between telephone systems in a city 



384 SUPEEME COURT OF WISCONSIN. [Feb. 

Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 

if it would result in substantial loss to either of the companies 
inyolved; but if the connection can be made on lawful condi- 
tions that will obviate substantial loss the commission is em- 
powered to order it and to fix the conditions under which it shall 
be made. 

8. So construed, sec. 1797m — 4, Stats. 1911, is not inyalid as authoriz- 

ing a taking of property without due process of law and without 
compensation, nor as denying the equal protection of the laws. 

9. An order by the railroad commission in this case that a physical 

connection be made between two telephone systems, prescribing 
terms and conditions to preserye the interests of and to compen- 
sate the respective companies for the additional service fur- 
nished by reason thereof, cannot be said to be unlawful in the 
absence of testimony showing the effect of operation under it. 

10. Such an order may, under sub. 8, ch. 546, Laws 1911, be revised 

from time to time by the commission, upon application of any 
Interested party or by the commission acting on ita own motion; 
and any order made on such application is reviewable by the 
courts. 

11. Having no power of condemnation, the railroad commission could 

not order a physideil connection between two telephone systems 
which would result in the taking of property of one of them, and 
then direct the exaction of an extra charge for toll service on 
the theory of making compensation for such property; but it 
might direct the exaction of such extra charge for the extra 
service rendered to those who take advantage of the connection, 
and thus prevent incidental loss that might result to one com- 
pany from the connection by removing any inducement there 
might otherwise be for the subscribers of that company to quit 
it and become subscribers of the other company with which the 
connection was made. 

12. The railroad commission is an administrative body which was not 

created for the purpose of deciding constitutional or legal ques- 
tions, and while incidentally it may, in carrying on its functions, 
be called upon to state what its construction of an existing law 
is, it has no authority to decide whether a statutory requirement 
is within or without the police power. Thus, while it may deter- 
mine the question of fact whether a physical connection between 
telephone systems will result in loss to one company, it has no 
power to decide the question of law whether the loss, if any, is 
one which the state has a right to inflict without making com- 
pensation. 

13. Sec. 1797m — 4, Stats. 1911, does not authorize the requiring of a 

physical connection if it would deprive one of the telephone 
companies of the beneficial use of its local exchange, but a find- 



22] JANUARY TERM, 1916. 385 

Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 

Ing of the commission that such a result would not follow cannot 
be said to be incorrect. In the absence of evidence to that effect. 

14. The compelling of a physical connection between telephone sys- 
tems does not result in any taking, in a constitutional sense, of 
any part of the switchboard or wires of one company and giv- 
ing them to the other company and its patrons, but merely 
places the equipment in such condition that each company can 
furnish service to the patrons of the other, for which service 
payment is to be made. The fact that the connection involves 
some expense does not alter the situation, because the state has 
the right, within reasonable limitations, to require public serv- 
ice corporations to increase their facilities where the public in- 
terest requires such increase. 

16. Even if, in such case, it were conceded that there was a taking of 
the property of one company by the requirement of a switch- 
board connection or by the use of its wires by patrons of the 
other company, such taking is a technical one only, resulting in 
no loss, and is within the legitimate scope of the police power. 

Appeal from a judgment of the circuit court for Dane 
county: E. Ray Stevens, Circuit Judge. Affirmed. . 

The appellant Wisconsin Telephone Company owns and 
operates and for many years last past has owned and operated 
a local telephone exchange in the city of La Crosse. It also 
operates long-distance toll lines which reach most of the pop- 
ulous centers in the state, and it has made contract arrange- 
ments for connections with local toll lines where it deemed it 
advantageous to do so. It is controlled by the American 
Telephone and Telegraph Company and has telephone con- 
nections which reach out over the United States and Canada 
and is part of what is commonly known as the "Bell System-'* 
The defendant La Crosse Telephone Company also owns and 
operates and for many years last past has operated a local 
telephone exchange in the city of La Crosse. It also owns 
and operates toll lines in the vicinity of La Crosse and con- 
nects with the Tri-State Company, over whose lines it is able 
to reach St. Paul and points beyond. Both companies have 
connections with three local toll lines, popularly known as the 
"Teasdale," "Kneen," and "Gaveney'' systems. The plaint- 

VoL. 162 — 25 



386 SUPREME COUET OF WISCONSIN. [Feb. 

Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 

iff's exchange in La Crosse is the oldest in point of time. 
The plant of the La Crosse Telephone Company waa installed 
by residents of the city of La Crosse- because there was dis- 
satisfaction with the manner in which the appellant carried 
on its business. 

The long-distance service afforded by the Bell Company 
was nation wide and in fact international, while that of the 
La Crosse Company was confined to a restricted area in the 
vicinity of the city. The Bell Company did not deem it to 
be for its interest to establish a physical connection with the 
plant of the La Crosse Company. A local subscriber of that 
company could not use his phone in talking with any one who 
had to be reached over the Bell lines, but would have to go to 
a booth or place where a Bell telephone was installed. It is 
also claimed that as to one of the local toll lines referred to, 
some of those served by it could not reach parties served exclu- 
sively by the Bell wires. This is denied by counsel for ap- 
pellant, and we have found it difficult to ascertain from the 
record just what the fact is. Each of the companies main- 
tained a telephone of the other in its exchange; so that if 
there was a long-distance call over the Bell wires for a sub- 
scriber of the La Crosse Company, the central office of that 
company was advised of that fact by telephone and in turn 
notified its subscriber. This arrangement and method of do- 
ing business was reciprocal. 

By ch. 546, Laws 1911 (sec. 1797rw — 4, Stats.), physical 
connection was required to be made between telephone sys- 
tems whenever the public convenience and necessity required 
such connection and it would not result in irreparable injury 
to the owners or users of these facilities nor in substantial 
detriment to the service. After the passage of this act the 
appellant persisted in its refusal to make the physical connec- 
tion, and Frank Wtnterj a citizen of La Crosse and a sub- 
scriber of the local telephone company, commenced a proceed- 
ing before the Railroad Commission, which was charged with 



22] JANUAEY TERM, 1916. 387 

Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 

the administration of the statute, to compel the appellant to 
do its part toward making the connection. The hearing on 
Mr, ^Vinter's petition resulted in an order directing that the 
connection asked for be made. The plaintiff brought this ac- 
tion to have this order declared void. The circuit court sus- 
tained the Commission and dismissed the complaint. Plaint- 
iff appeals. 

For the appellant there was a brief by Miller, Mack dc 
Fairchildj and oral argument by Edwin S. Mack, They con- 
tended, inter alia, that the terms of the statute do not justify 
the order for physical connection entered by the Commission. 
At common law a corporation engaged in a business con- 
nected with the public interest is bound to give service only 
through its own instrumentalities owned or controlled by it, 
and is under no obligation to go beyond those limits or to em- 
ploy other instrumentalities unless it elects so to do. If a 
public utility does contract for services beyond the termina- 
tion of its own instrumentalities, it has the right to select its 
own agencies to the exclusion of all others for such extended 
services. The fact that a public utility has made an agree- 
ment for the exchange of business with one company or one 
agency does not give to other companies or agencies a right to 
demand a similar exchange of business or facilities for them- 
selves. This rule is applicable to telephone companies as 
well as to carriers. Pacific T. & T. Co. v. Anderson, 196 
Fed. 699, 703 ; Home T. Co. v. People's T. & T. Co. 125 
Tenn. 270, 141 S. W. 845 ; Atchison, T. & S. F. R. Co. v. D. 
& N. 0. R. Co. 110 U. S. 667, 4 Sup. Ct. 185; Pullman's P. 
C. Co. V. M. P. R. Co. 116 U. S. 587, 6 Sup. Ct. 194; Ex- 
press Cases, 117 U. S. 1, 601, 6 Sup. Ct. 542, 628, 1190; 
Louisville & N. R. Co. v. West Coast N. 8. Co. 198 U. S. 
483, 25 Sup. Ct. 745 ; Donovan v. Pennsylvania Co. 199 U. 
S. 279, 26 Sup. Ct. 91 ; Depot C. & B. Co. v. Kansas City 
T. R. Co. 190 Fed. 212 ; Home T. Co. v. Sarcoxie L. & T. 
Co. 236 Mo. 114, 139 S. W. 108. The act in question (if it 



388 SUPREME COURT OF WISCONSIN. [Feb. 

Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 

be constitutional) imposes on telephone companies a duty not 
required of them at common law, and which they unquestion- 
ably could not be required to perform in the absence of stat- 
ute. Such duty is not one of the company's absolute duties, 
but strictly and only secondary in its nature. Washington 
ex rel Oregon R. & N. Co. v. Fairchild, 224 U. S. 510, 82 
Sup. Ct 535. Whatever power there is to require the mak- 
ing of physical connection between lines must have been 
given for the benefit of the public alone, and such right must 
be exercised for the benefit of the public and not of another 
telephone company. Interstate Comm. Comm. v, D,, L. dk 
W. R. Co. 216 U. S. 531, 30 Sup. Ct. 415. 

Public convenience and necessity do not require the phys- 
ical connection ordered. Public convenience and necessity 
"are an urgent and immediate public need" to remedy an 
"evil" amounting to "an unreasonable burden upon the com- 
munity." In re Shelton St. R. Co. 69 Conn. 626, 38 AtL 
362; Hunter v. Mayor, etc. 5 R. I. 325 ; Schuster v. Milwaur 
kee E. R. & L. Co. 142 Wis. 578, 587, 588, 126 N. W. 26; 
Washington ex rel. Oregon R. & N. Co. v. Fairchild, 224 U. 
S. 510, 32 Sup. Ct. 535. If a public utility can furnish the 
service required, even though in fact it is not furnishing it, 
public convenience does not require the furnishing of the 
facilities through some other agency. This has been given 
effect by the Commission where a second utility sought to 
enter a field already served by a first. In re La Crosse O. <6 
E. Co. 2 Wis. R R. Coram. Rep. 3; In re Cushion, 2 Wis. R 
R. Comm. Rep. 677, citing Matter of Amsterdam, J. <Sc O. 
R. Co. 87 Hun, 578, 33 N. Y. Supp. 1009 ; Weld v. Oas & E. 
L. Comm'rs, 197 Mass. 556, 84 N. E. 101. The general 
rule is that it is the duty of a public service corporation to 
furnish service to the public, and not to furnish service to 
similar competing utilities, except in so far as members of 
the public desire service in the same way. Furthermore, the 
company is entitled to furnish service through its own instru- 



22] JANUARY TERM, 1916. 389 

Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 

mentalities, and it need not use the instrumentalities of rivals 
when it has its own available Atchison, T. & 8, F. B» Co. 
V. D. £ N. 0. R. Co. 110 U. & 667, 4 Sup. Ot. 185 ; Ex- 
press Cases, 117 U. S. 1, 601, 6 Sup. Ct 542, 628, 1190; 
Louisville & N. R. Co. v. West Coast N. 8. Co. 198 U. S. 
483, 25 Sup. Ct. 745; Southern P. Co. v. Interstate Comm. 
Comm. 200 U. S. 536, 26 Sup. Ct. 330; People ex rel. Cairo 
T. Co. V. Western U. T. Co. 166 111. 15, 46 K E. 731. See, 
also, Lundquist v. G. T. W. R, Co. 121 Fed. 915 ; Little Rock 
& M. R. Co. V. 8t. L., I. M. & 8. R. Co. 41 Fed. 559 ; Little 
Rock & M. R. Co. V. E. T„ V. £ O. R. Co. 47 Fed. 771 ; 
Oregon 8. L. & U. N. R. Co. v. N. P. R. Co. 61 Fed. 158; 
Central 8. Y. Co. v. L. £ N. R. Co. 192 U. S. 568, 24 Sup. 
Ct. 339 ; Louisville & N. R. Co. v. Central 8. Y. Co. 212 
TJ. S. 132, 29 Sup. Ct. 246 ; Mississippi R. R. Comm. v. Y. 
& M. V. R. Co. 100 Miss. 595, 56 South. 668; Home T. Co. 
V. People's T. & T. Co. 125 Tenn. 270, 141 S. W. 845, 848. 

The physical connection ordered will cause irreparable in- 
jury to the plaintiff. Wilson v. Mineral Point, 39 Wis. 160, 
164; Eau Claire W. Co. v. Eau Claire, 127 Wis. 154, 159, 
106 K W. 679; Butterick P. Co. v. Rose, 141 Wis. 533, 539, 
124 X. W. 647; 23 Cyc. 356; Ins. Co. of N. A. v. Bonner, 7 
Colo. App. 97, 42 Pac. 681, 682. The term "irreparable 
injury" as used in the act, which will prevent physical con- 
nection being ordered, means an injury for which the act it- 
self does not furnish full and adequate compensation. Car- 
penter V. Grisham, 59 Mo. 247; Western U. T. Co. v. Rog- 
ers, 42 N. J. Eq. 311, 314, 11 Atl. 13. 

The provisions of the act requiring physical connection are 
unconstitutional because they fail to provide compensation 
and are not a taking for public use. The state cannot pre- 
vent a public service company from earning on the value of 
its property, including the value of the established business. 
The value of this established business must be given recogni- 
tion in rate cases and in proceedings by eminent domain as 



390 SUPREME COURT OF WISCONSIN. [Feb. 

Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 

well as in taxation cases. Appleton W, W. Co. v. Railroad 
Comm. 154 Wis. 121, 146, 142 N. W. 476; Duluth St. B. 
Co. V. Railroad Comm. l6l Wis. 245, 152 N. W. 887; 
Om^ha V. Omuha W. Co. 218 U. S. 180, 202, 30 Sup. Ct 
615; Nat. W. W. Co. v. Kansas City, 62 Fed. 853, 865; 
Gloucester W. 8. Co. v. Gloucester, 179 Mass. 365, 60 N. E. 
977, 981; Missouri, K. & T. R. Co. v. Love, 177 Fed. 493, 
496 ; State ex rel. N. C. Foster L. Co. v. Williams, 123 Wis. 
61, 69, 100 N. W. 1048. The order does not contemplate 
merely a mechanical union of the lines of the plaintiff and 
the La Crosse Company. It requires the use of the lines in 
a single circuit, and it necessarily involves the taking and use 
of the plaintiff's rights and property. For this right and 
privilege the plaintiff has a constitutional right to compensa- 
tion. The law can justify such an appropriation only if it 
fulfils the constitutional requirement of providing compensa- 
tion and that in advance. The rule is that the statute au- 
thorizing the taking of property must itself provide for the 
payment of damages and an adequate remedy by which the 
owner may procure the compensation. Louisville & N. R. 
Co. V. Central S. Y. Co. 212 U. S. 132, 144, 29 Sup. Ct. 246 ; 
Cherokee Nation v. S. K. R. Co. 135 U. S. 641, 660, 10 Sup. 
Ct. 965 ; Sweet v. Rechel, 159 U. S. 380, 16 Sup. Ct. 43 ; 
Chicago, B. & Q. R. Co. v. Chicago, 166 U. S. 226, 238, 17 
Sup. Ct. 581 ; Comm. ex rel. Norton B. of T. v. N. & W. R. 
Co. Ill Va. 59, 68 S. E. 351; Lange v. La C. & E. R, Co. 
118 Wis. 558, 563, 95 N. W. 952; Shepardson v. M. & B. R. 
Co. 6 Wis. 605 ; Powers v. Bears, 12 Wis. 213, 221 ; Sher- 
man v. M., L. S. & ^Y. R. Co. 40 Wis. 645, 651. There is 
a taking within the constitutional prohibition where the use- 
fulness of property is substantially impaired, even though the 
property remain physically in the owner's possession. Pum- 
pelly V. Green Bay & M. C. Co. 13 Wall. 166; Janesville v. 
Carpenter, 77 Wis. 288, 301, 46 N. W. 128. The compen- 
sation that is required is "just compensation,'* and this means 
that it must afford a full and perfect equivalent for all dam- 



22] JANUARY TERM, 1916. 391 

> 

Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 

ages suffered. Monongahela N. Co. v. U. S. 148 U. S. 312, 
13 Sup. Ct. 622; Lewis, Em. Dom. (3d ed.) § 360; State ex 
rel N. P. R. Co. v. RaUroad Coram. 140 Wis. 145, 121 N. 
W. 919. The wide difference between the undertaking to 
furnish telephone facilities to individuals . through instru- 
ments supplied for the purpose and an undertaking to join 
with another telephone company in serving the patrons of 
that company has been recognized judicially. Home T. Co. 
V. People's T. £ T. Co. 125 Tenn. 270, 141 S. W. 845, 848 ; ' 
State ex rel. Goodwine v. Cadwallader, 172 Ind. 619, 87 N. 
E. 644, 89 N. E. 319. For cases directly involving the con- 
stitutionality of compulsory physical connection of telephone 
companies, see Billings Mut. T. Co. v. Rocky Mountain Bell 
T. Co. 155 Fed. 207; Pacific T. & T. Co. v. Eshleman, 166 
Cal. 640, 137 Pac. 1119 ; Home T. Co. v. Sarcoxie L. £ T. 
Co. 236 Mo. 114, 139 S. W. 108; Home T. Co. v. People's T. 
& T. Co. 125 Tenn. 270, 141 S. W. 845. 

Even eminent domain must be exercised for a different, 
use — not for the same use by a different person. ^Yest River 
B. Co. V. Dix, 6 How. 507 ; Lake Shore & M. S. R. Co. v. C. 
& W. /. R. Co. 97 111. 506, 512; Cary Library v. Bliss, 151 
Mass. 364, 25 N. E. 92, 7 L. R. A. 765, 771 ; State ex rel 
Kettle Falls P. & I. Co. v. Superior CouH, 46 Wash. 500, 90 
Pac. 650, 652; Eastern Wis. R. & L. Co, v. Hackett, 135 
Wis. 464, 115 X. W. 376, 1136, 1139; State ex rel N, P. R. 
Co. V. Railroad Cornrn. 140 Wis. 145, 159, 121 X. W. 919. 
Taking the property of one public service corporation for use 
by another public service corporation in the same manner, 
would mean simply to take the property of one and give it to 
another without any advantage whatever to the public. 
Samish River B. Co. v. Union B. Co. 32 Wash. 586, 73 Pac. 
670 ; 15 Cvc. 613 ; Evansville & H. T. Co. v. Henderson B. 
Co. 134 Fed. 973, 978; Mississippi R. R. Comm. v. Y. & M. 
y. R. Co. 100 Miss. 595, 56 South. 668; Home T. Co. v. Peo- 
ple's T. & T. Co. 125 Tenn. 270, 141 S. W. 845. 

For the respondent Railroad Commission of Wisconsin 



392 SUPKEME COUKT OF WISCONSIN. [Feb. 



Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383< 



there was a brief by the Attorney Oeneral and Walter Drew, 
deputy attorney general, and oral argument by Mr. Drew. 
Frank Winter j respondent, in pro, per. 

Barnes, J. Sub. 1 and 2 of sec. 1797rw — 4, Stats., as 
amended by sec. 1, ch. 646, Laws 1911, read as follows: 

"1. Every public utility, and every person, association or 
corporation having conduits, subways, poles or other equip- 
ment on, over or under any street or highway, shall for a rea^ 
Bonable compensation, permit the use of the same by any pub- 
lic utility, whenever public convenience and necessity require 
such use, and such use will not result in irreparable injury to 
the owner or other users of such equipment, nor in any sub- 
stantial detriment to the service to be rendered by such own- 
ers or other users, and every utility for the conveyance of 
telephone messages shall permit a physical connection or con- 
nections to be made, and telephone service to be furnished, 
between any telephone system operated by it, and the tele- 
phone toll line operated by another such public utility, or be- 
tween its toll line and the telephone system of another such 
public utility, or between its toll line and the toll line of an- 
other such public utility, or between its telephone system and 
the telephone system of another such public utility, whenever 
public convenience and necessity require such physical con- 
nection or connections, and such physical connection or con- 
nections will not result in irreparable injury to the owners or 
other users of the facilities of such public utilities, nor in any 
substantial detriment to the service to be rendered by such 
public utilities. The term 'physical connection,' as used in 
this section, shall mean such number of trunk lines or com- 
plete wire circuits and connections as may be required to fur- 
nish reasonably adequate telephone service between such pub- 
lic utilities. 

**2. In case of failure to agree upon such use or the condi- 
tions or compensation for such use, or in case of failure to 
agree upon such physical connection or connections, or the 
terms and conditions upon which the same shall be made, any 
public utility or any person, association or corporation inter- 
ested may apply to the commission, and if after investigation 



22] JANUARY TERM, 1916. 393 



Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 



the commission shall ascertain that public convenience and ne- 
cessity require such use or such physical connection or connec- 
tions, and that such use or such physical connection op con- 
nections would not result in irreparable injury to the owner 
or other users of such equipment or of the facilities of such 
public utilities, nor in any substantial detriment to the serv- 
ice to be rendered by such owner or such public utilities or 
other users of such equipment or facilities, it shall by order 
direct that such use be permitted and prescribe reasonable 
conditions and compensation for such joint use, and that such 
physical connection or connections be made, and determine 
how and within what time such connection or connections 
shall be made, and by whom the expense of making and main- 
taining such connection or connections shall be paid.'' 

The statute involved covers two distinct subjects. The 
first provision relates to the use by a stranger of conduits, 
subways, poles, and other equipment located in streets and 
highways and owned by some other person, firm, or corpora- 
tion. Under the statute such use must be permitted where 
public convenience and necessity require it and where it will 
not result in irreparable injury to the owner or other users of 
the equipment, subject to the condition that a reasonable 
<X)mpensation must be paid for such use. 

The second provision relates to the matter of physical con- 
nection between telephone exchanges, and differs from the 
first in one important particular at least, in that it provides 
for no compensation for the taking or the use of the facilities 
of one telephone company by another, if any such thing is 
contemplated. Three conditions must co-exist before a phys- 
ical connection is required : Public necessity and convenience 
must demand the connection ; such connection must not result 
in irreparable injury to the owners or users of the facilities 
of the companies that would be affected; and the connection 
must not result in: substantial detriment to the service. 

As we read the decision of the Railroad Commission, it 
<;onstrued the law as not permitting physical connection where 



394 SUPREME COURT OF WISCONSIN. [Feb. 
Wisconsin Tel. Co. t. Railroad ConunlBslon, 162 Wis. 383. 

it would result in substantial loss to either of the companies 
involved. This is not said in so many words, but it is a 
fairly deducible conclusion from the language used. So con- 
strued and applied there is at the present day little room for 
asserting that the legislation is not a legitimate exercise of 
the police power vested in the legislature. As facts the Comr 
mission found: (1) that public convenience and necessity re- 
quired that the connection be made; (2) that such connection 
would not result in any substantial detriment to the service 
of either company; and (3) that such connection could be so 
made as not to result in irreparable injury, or in fact in any 
injury, to either of the utilities involved. The court sus- 
tained the order of the Commission, but appears to have 
reached the conclusion that the order was right on a different 
ground, or at least an additional one, from that on which the 
Commission based its decision. The opinion of the court 
would indicate that it entertained the view that although a 
part of plaintiff's property was taken without compensation 
and although the application of the statute might result in 
greatly depreciating the value of its local exchange at La 
Crosse, still it was a valid exercise of the police power. 

The plaintiff argues (1) that public necessity and con- 
venience did not require a physical connection in this in- 
stance, and that the finding to the contrary has no suflScient 
support in the evidence and is against the testimony offered ; 
(2) that the order will result in irreparable injury to it in 
at least four particulars: (a) it will practically destroy its 
local exchange at La Crosse; (b) it will divert toll business 
to La Crosse which plaintiff now receives over independent 
lines with which it is connected, to the local company; 
(c) it will enable the local company to divert unprofitable 
outgoing toll business from its own lines to those of the plaint- 
iff; (d) it will enable the local company to ascertain what 
toll lines of the plaintiff in the vicinity of La Crosse are 
profitable, and result in duplication; (3) that the order and 



22] JANUARY TERM, 1916. 395 

WlBconBlii Tel. Co. t. Railroad Commlssioii, 162 Wis. 383. ~ 

statute violate plaintiflF's constitutional rights, in that they 
take its property without due process of law and without com- 
pensation and deny to it the equal protection of the laws. 

If the contention is correct that the finding of convenience 
and necessity should not be permitted to stand, it is decisive 
of the case and no other question need be considered. The 
question raised is one of fact, and the plaintiff has against it 
the conclusion reached by the Commission, which has also re- 
ceived the sanction of the trial court. The burden rested on 
the plaintiff in the lower court to show by clear and satisfac- 
tory evidence that the determination of the Railroad Com- 
mission was unreasonable or unlawful. Sec. 1797m — 70, 
Stats. At the time of the hearing before the Commission 
there were 1,786 subscribers to the local exchange of the 
plaintiff at La Crosse, and 3,082 subscribers to the exchange 
of the local company. Included in these figures are 561 
users who were subscribers to both exchanges. Under condi- 
tions that existed, where there was a call over the Bell toll 
line for a resident of La Crosse who was a subscriber to the 
-exchange of the local company but not to that of the plaintiff, 
an operator in the local company's office was notified of such 
call by telephone. The operator then notified its subscriber 
of the call and such subscriber could respond only by going to 
a Bell station or to a place where a Bell phone was in use. 
In the meantime the toll line might be pre-empted by other 
users and considerable delay caused to the person who was 
obliged to wait. There was testimony tending to show that 
the average waiting time was half an hour. Delay and in- 
convenience also no doubt often occurred to the person calling 
who desired to talk with a party at La Crosse. If the caller's 
place of business was equipped with a Bell telephone and the 
caller in the meantime could proceed with his usual work, the 
inconvenience might not be great, but if made from some 
station removed from his place of business it might be very 
eonsiderable. There can be no doubt that this method of 



396 SUPKEME COURT OF WlSCOi^SII^. [Feb. 

WiBconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 

doing business was tinsatisfactorj, because of inconvenience 
to the party called and often to the caller on account of delay 
in securing a connection after the lapse of time that would be 
necessary in order to enable the party called to reach a Bell 
phone. The same situation arose wh^e a subscriber to the 
local exchange of the plaintiff who wlas not a subscriber to the 
local exchange of the La Crosse Telephone Company desired 
to use the toll lines of the latter company or its connections 
at points not served by the toll lines of the plaintiff. La 
Crosse is a city of about 30,000 inhabitants, and it is prob- 
able that many persons had occasion to use the toll lines of 
one or both companies whose convenience might in some de- 
gree at least be promoted by the physical connection asked 
for. Be this as it may, there were over 1,200 subscribers to 
the exchange of the plaintiff and more than 2,500 subscribers 
to that of the local company whose convenience might well de- 
mand that the connection be made. It is no doubt true that 
not all of these subscribers used the toll lines and that some 
of them seldom used them. But the Commission found that 
the toll calls for one month amounted to $6,000 for the Bell 
line and to about $4,600 for the local system; so that it is ap- 
parent that the toll lines are liberally patronized. The in- 
convenience in sending outgoing messages would be prac- 
tically the same for residents of La Crosse as the receiving of 
incoming ones. 

The number of people who would be affected by the con- 
nection sought is by no means insignificant. It is large 
enough so that if the connection is a matter of convenience 
and necessity it is also a matter of public convenience and 
necessity. About the connection being a convenience there 
can be no doubt. This, however, is not sufficient, because it 
must also be a necessity. The words are not synonymous and 
effect must be given both. The word "convenience" is much 
broader and more inclusive than the word "necessity." Most 
things that are necessities are also conveniences, but not all 



22] JANUAKY TERM, 1916. 397 



WisconBin Tel. Co. y. Railroad Commission, 162 Wis. 883. 



conyeniencee are necessities. If we regard the word ^^neces- 
sitj^' as meaning something that is indispensable, it eould not 
be said that the connection ordered in the present case was a 
"necessity/' But if such a definition were adopted it would 
leave the law so that it would be a thing of ornament rather 
than of use, because it is improbable that a situation would 
arise where it could be said that a physical connection be- 
tween telephone lines was indispensable to the public. The 
legislature certainly had some situations in mind to which 
the law was intended to apply. The word "necessity" has 
been used in a variety of statutes, particularly in those en- 
acted in reference to condemnation and to regulation of pub- 
lic utilities. It is even more frequently found in our so- 
called "Sunday laws." It has been generally held to mean 
something more nearly akin to convenience than the defini- 
tion found in standard dictionaries would indicate. So it is 
said the word will be construed to mean not absolute but rea- 
sonable necessity. Samish River B. Co. v. Union B, Co. 32 
Wash. 586, 73 Pac 670 ; Wardshoro v. Jamaica, 59 Vt. 514, 
9 Atl. 11; Bryan v. Branford, 50 Conn. 246, 253; Pepin Tp. 
V. Sage, 129 Fed. 657, 665. Inconvenience may be so great 
as to amount to necessity. Lawton v. Rivers, 2 McCord 
(S. C.) 445, 13 Am. Dec. 741. A strong or urgent reason 
why a thing should be done creates a necessity for doing it. 
Todd V. Floumoya Heirs, 56 Ala. 99, 113. The word con- 
notes different degrees of necessity. It sometimes means in- 
dispensable; at others, needful, requisite, or conducive. 8L 
Louis O. A. Co. V. Wanamaker, 115 Mo. App. 270, 90 S. W. 
737, 743. The words "convenience and necessity" mean 
urgent immediate public need. Application of Shelton St. 
B. Co. 69 Conn. 626, 38 Atl. 362. So held under a statute 
prohibiting the construction of parallel lines of street railroad 
except when public convenience and necessity required it 
Necessity does not exist unless the inconvenience would be so 
great as to amount to an unreasonable burden on the com- 



398 SUPREME COURT OF WISCONSIN. [Feb. 

Wisconsin Tel. Co. v. Railroad CommiSBion, 162 Wis. 383. 

munity. Hunter v. Mayor, etc. 5 R I. 325. The Michigan 
court holds that if a proposed improvement is a convenience 
of sufficient importance to warrant the expense of making it, 
it is a public necessity. Comm'rs of Parks v. Moesta, 91 
Mich. 149, 51 ]Sr. W. 903. The Kentucky court holds that a 
thing which is expedient is a necessity. Warden v. M., H. & 
E. R. Co. 128 Ky. 563, 108 S. W. 880. The term is relative 
rather than absolute. No definition can be given that would 
fit all statutes in which the word has been used. The mean- 
ing in a given case must be ascertained by reference to the 
context and to the objects and purposes of the statute in 
which it is found. If there was a strong or urgent need of 
the connection here sought, then there was a necessity for it, 
and the finding that necessity existed is not shown to be 
wrong or unreasonable by clear and satisfactory evidence 

This brings us to a consideration of the injurious results 
which the appellant insists will flow from the statute and the 
order of the Commission made thereunder. The first of these 
suggested is the most substantial. The local exchange of the 
plaintiff was constructed before that of the local company, at 
a cost of $240,000. The local company is owned by resident 
stockholders who have been active in extending its business 
and have brought strong influence to bear on telephone users 
to patronize their company, with the result that a large ex- 
change was built up to a considerable extent at least at the 
expense of the older company, because there has been a 
marked falling off in the number of its patrons since its com- 
petitor appeared in the field. The exchange of the local com- 
pany being now much larger than that of the plaintiff, it is 
more attractive and perhaps more useful to a telephone user 
than is that of the plaintiff. The appellant contends, logically 
enough, that the only substantial hold which it has on so much 
of its business as remains is the advantage it can offer its 
subscribers of direct toll connections with all important points 
in the United States and Canada; that it is entitled to this 
advantage, and that if taken away its local exchange will in- 



22] JANUARY TERM, 1916. 399 

Wisconsin Tel. Co. y. Railroad Commission, 162 Wis. 883. 

evitably lose most of the business it has and its investment 
will be largely destroyed, because the value of its property 
will be reduced at least fifty per cent. It further contends 
that not only will its business and property be largely de- 
stroyed, but that such business will be transferred to a com- 
petitor without a cent of compensation, and that such a result 
would be an unlawful taking of property, practically to the 
same extent that a law would be which allowed railroads to 
operate their properties but prohibited them from exacting 
any substantial compensation for the service performed. 
The Railroad Commission substantially finds that an uncon- 
ditional order for annexation would produce the results 
claimed, and such finding is well supported by the evidence 
offered and appears to be an entirely reasonable result to reach. 
The conclusion of the Commission, however, was that from a 
practical standpoint the case stated was really a hypothetical 
one and one to which the law did not apply. As before stated, 
it took the ground that a connection could not be ordered if it 
resulted in substantial loss to either of the companies involved, 
and that inasmuch as it was empowered to fix the conditions 
under which the connection should be made, the question be- 
fore it in any given case was. Could connection be made on 
lawful conditions that would obviate substantial loss ? If so, 
it was empowered to act, provided other requisites existed. 
If not, the case was one which would fall without the statute 
and one where it had no power to order a connection. 

Sub. 2 of the statute quoted provides that in case the utilities 
interested shall fail to agree upon the physical connection de- 
sired, or upon "the terms and conditions upon which the same 
shall be made," the Railroad Commission may fix such 
"terms and conditions" on proper application. After stating 
that the law did not contemplate a physical connection which 
would render the earning power of the local exchange of the 
plaintiff practically nil, the Commission in its decision pro- 
ceeds : 

"No subterfuge can be indulged under the statute which 



400 SUPREME COURT OF WISCONSIN. [Feb. 

Wisconsin Tel. Co. v. Railroad Commission,! 62 Wis. 383. 

will have the effect of depriving any private property, em- 
ployed in a public service, of its earning capacity. 

"In the peculiar situation found in the instant case, it is 
possible to prescribe terms and conditions which will preserve 
the interests of the utilities respectively after the connection 
has been made. The subscriber of one company desiring toll 
service over the lines of the other company must pay, in addi- 
tion to the rate charged the patrons of the latter company, a 
reasonable compensation for the additional service. Neither 
company will be permitted to absorb such additional charge, 
but the same must be paid by the patrons of either company 
using the toll lines of the connecting company. This will 
not result in any discrimination between subscribers of the 
same exchanges, but will result in a just and necessary dis- 
crimination between the subscribers of the two exchanges. A 
subscriber who has not installed the telephones of both ex- 
changes is not entitled to the toll service of both exchanges 
without paying an additional charge to the exchange with 
which he is not connected when desiring to use its toll-line 
facilities. 

"There is no evidence showing that any irreparable injury 
will or can result to the owner or other user of the facilities 
of the respondent companies. Under the terms and condi- 
tions outlined above the business of neither company will be 
disturbed and their relations to each other with respect to ex- 
isting local business will be the same as at present. Cer- 
tainly neither can suffer any injury under the circum- 
stances." 

In the order presently before us the terms and conditions 
were not definitely fixed because the parties had the right to 
agree upon them if they were able to do so. Being unable 
to agree, the Commission made a subsequent order, which 
will be found in Winter v. La Crosse Tel, Co. 15 Wis. R. R. 
Comm. Rep. 36, 42. While this order is not directly in- 
volved in this proceeding, it is instructive as illustrative of 
what the Commission had in mind. The part of it material 
to this case is as follows : 

"It is further ordered, that each subscriber of the Wis- 
consin Telephone Company desiring service over the toll 



22] JANUARY TERM, 1916. 401 

Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 

lines of the La Crosse Telephone Company shall be charged 
for each message, in addition to the regular charge of the La 
Crosse Telephone Company, as follows: 

"1. For all distances of not over 50 miles from the office 
of the La Crosse Telephone Company, 5 cents; for all dis- 
tances over 50 miles and not over 100 miles from such office, 
10 cents ; and for all distances over 100 miles from such of- 
fice, 15 cents. All distances shall be measured by air line. 

"It is further ordered, that each subscriber of the La 
Crosse Telephone Company desiring service over the toll 
lines of the Wisconsin Telephone Company shall be charged 
for each message, in addition to the regular charge of the 
^^isconsin Telephone Company, as follows: 

"2. For all distances of not over 50 miles from the office 
of the Wisconsin Telephone Company, 5 cents; for all dis- 
tances over 50 miles and not over 100 miles from such office, 
10 cents; and for all distances over 100 miles from such of- 
fice, 15 cents. All distances shall be measured by air line. 

"3. Neither of the companies shall absorb any such addi- 
tional charges, but shall collect the same from its subscribers ; 
but each of the companies shall be liable to the other and shall 
pay to the other the long-distance tariff toll plus such addi- 
tional charge. 

"If this division of tolls, after a fair trial, shall be found 
to be inequitable, and the companies cannot agree upon a 
proper division of the tolls, the Commission will by supple- 
mental order establish such division." 

It will be observed that the Commission takes the position 
that the physical connection desired could be made without 
taking the plaintiff's property in the constitutional sense and 
without detriment to it. There is evidence pro and con as to 
the effect of such connection. It is necessarily opinion evi- 
dence, and in the absence of testimony showing the effect of 
operation under the order it is impossible to say that the 
Commission is not right. Its judgment is that the extra 
eharge provided for will deter present subscribers to the local 
exchange of the plaintiff from discontinuing the use of the 
Bell phone and substituting that of the local company. The 
•correctness of this judgment should be subjected to the acid 
Vol. 162 — 26 



402 SUPEEME COUKT OF WISCONSIN. [Feb. 

Wisconsin Tel. Co. v. Railroad Commission, 162 Wis. 383. 

test of experience before it is condemned. The law makes 
provision for the protection of plaintiff's rights if they have 
been unduly trenched upon. Sub. 3, sec. 1797m — 4, Stats. 
1911, provides that the order of the Commission may be re- 
vised from time to time on the .application of any interested 
party or by the Commission acting on its own motion. Any 
order made on such application would of course be reviewable 
by the courts. 

It is suggested that it was not within the power of the 
Railroad Commission to make such a regulation as it pro- 
posed to make in its original decision and as it afterwards 
made in its supplemental order. If these orders were made 
on the theory that there was a taking of property for which 
compensation should be made and that such property was 
paid for by the exaction of the extra charge provided for, we 
do not see how they could be sustained, because no power of 
condemnation is conferred on the Commission. The orders, 
however, are made on the theory that there is no taking. 
The charge is exacted because an extra service is furnished to- 
those who take advantage of the connection and for the pur- 
pose of removing any inducement there might be on the part 
of plaintiff's subscribers to quit it because of the connection 
and become patrons of the local exchange of the rival com^ 
pany. The purpose of the regulation is not to pay for any 
taking of property, but to prevent incidental loss that might 
result to the plaintiff from the connection. Viewed in this 
light, we see no objection to the regulation and think it comes 
fairly within the statute. 

We shall not discuss in detail objections (b), (c), and (d), 
hereinbefore enumerated, as such discussion would serve ne 
useful purpose. The Commission of necessity must have 
concluded that such objections were not well taken, or that 
they could and would be obviated by the regulations which it 
intended to prescribe. Sufficient answer can be made to all 
of them in the absence of any showing as to the practical ef- 



V 



22] JANUARY TERM, 1916. 403 

WlBGonsln Tel. Co. v. Railroad Commission, 162 Wis. 383. 

feet which the connection has had upon the revenues of the 
plaintiff. It was stated on the argument that a physical con- 
nection was in fact made not long after the entry of the order 
of August 20, 1914. By the time the decision in this case is 
announced the parties will be able to present to the Commis- 
sion, if they so desire, facts instead of theories and opinions, 
and if the conclusion first reached proves to be wrong it can 
be rectified. 

The constitutionality of the law is attacked as well as the 
validity of the order of the Commission made thereunder. 
If the law was correctly interpreted by the Commission there 
is no substantial basis for asserting that it is subject to any 
constitutional infirmity. If a mistaken interpretation has 
been placed upon it, another question arises, because it is es- 
sential to know what a law means before we proceed to pass 
upon its validity. The uncertainty in this case, if there is 
any, arises out of the meaning of the words "irreparable in- 
jury'^ as used in the act. The phrase is most frequently 
found in the books in cases dealing with equity suits, irrep- 
arable injury being the basis on which most equity actions 
rest. As there used, this court has said an injury is irrep- 
arable when it is of such a nature that the injured party 
cannot be adequately compensated therefor in damages, or 
when the damages which may result therefrom cannot be 
measured by any certain pecuniary standard. Eau Claire 
W. Co. V. Eau Claire, 127 Wis. 154, 159, 106 N. W. 679; 
Wilson V. Mineral Point, 39 Wis. 160. The appellant urges 
that the legislature had this definition in mind when it passed 
the act, and that, inasmuch as the physical connection would 
result in serious loss to it in the particulars claimed, and the 
amount of such loss could not be ascertained, the Commis- 
sion had no authority under the law to order the connection. 
The Commission meets this by saying that the plaintiff 
would suffer no loss if the connection were made under proper 
regulations. 



404 SUPREME COURT OF WISCONSIN. [Feb. 

Wisconsin Tel. Co. t. Railroad Commission, 162 Wis. 383. 

It would seem apparent that the legislature did not use the 
phrase in the sense referred to. While situations would arise 
where the damages resulting from ordering a connection could 
not be adequately compensated for or measured in money 
value, cases might just as well arise where they could be. 
The legislature hardly intended that where the amount of 
money compensation could not be fixed no connection should 
be made, while, if the amount of damages that would result 
could be ascertained, then a connection should be made. The 
oy, iier would be just as much entitled to relief in the one case 
as in the other, although the character of the relief might be 
different. There is no provision for compensation in the act, 
so none could be recovered where damages resulted and were- 
ascertainable, although a connection would have to be made. 
Such a construction would, to say the least, raise grave doubts 
as to the validity of the law. The objection to the suggested 
meaning of the phrase "irreparable injury" holds good whether 
we consider that the legislature had in mind the legal defini- 
tion of the word "injury" or the popular meaning of it If 
loss results which the state cannot inflict in the exercise of 
the police power, the loser is entitled to compensation, and 
this right exists where the damages can be ascertained to a 
certainty as fully as where they cannot be. We conclude 
that the legislature did not use these words in the sense in 
which they are understood in equity law. 

There is some doubt as to whether the legislature used the- 
word "injury" in its popular or in its legal sense. Ordi- 
narily the word "injury" is used to designate a thing which 
inflicts harm or damage, but a thing which inflicts more than 
a slight loss. Cent. Diet. And the word "irreparable'^ 
means something that cannot be repaired or recovered or 
made good. So where there is substantial loss or damage 
which is not recoverable, it is entirely correct to say that 
there is irreparable injury. Losses caused by fire where 
there is no insurance, or by flood or pests, as well as many^ 



22] JANUAEY TERM, 1916. 405 



Wisconsin Tel. Co. T. Railroad Commission, 162 Wis. 383. 

■■■! I in • 

others^ are commonly and properly referred to as irreparable 
injuries. 

The generally accepted legal definition of the word "in- 
jury" is more restricted. A thing done is said to be an in- 
jury when it violates a legal right of a party. Certain acts 
which inflict loss are held to be damnum absque injuria. 
Some authorities interpret the phrase as meaning "injury 
without wrong" (Bouv. Law Diet), and others, "loss with- 
out injury" (2 Words & Phrases, 1823), and still others, as 
"a loss without wrong" (13 Cyc. 255). Losses arc fre- 
quently occasioned by a legitimate exercise of the police^ 
power for which no recovery can be had because no legal 
right has been violated. The words "irreparable injury" 
found in this statute are used in one of the two senses last re- 
ferred to. It is not very material to a decision of this case 
which definition is adopted, but the question is directly be- 
fore us aud it may be important in the administration of the 
law to suggest what we deem to be the true interpretation. 

If we say they are used in the sense last discussed, then the 
words perform no function and are mere surplusage, unless 
we say that what the legislature meant was to require a phys- 
ical connection in every case where in the exercise of its po- 
lice power it had the right to require it, provided public con- 
venience and necessity would be thereby promoted and 
substantial detriment to the service would not follow. This 
construction would require the connection to be made unless 
it would result in legal damage to or violate a legal right of 
one of the parties concerned. By legal damage we mean loss 
which the state could not lawfully inflict under its police 
power and which of course would not fall within the class of 
wrongs to which the rule of damnum absque injuria applies. 
This would be an unusual form of legislation, to say the 
least. It is equivalent to a command in the first instance to 
make a physical connection, provided the state in the exercise 
of its police power has the right to order it The utilities 



406 SUPREME COURT OF WISCONSIN. [Feb, 

Wisconsin Tel. Ck). y. Railroad Commission, 162 Wis. 383. 

would have to decide in each instance whether the power was 
exceeded or not. If one or both of them should decide 
against the connection, then the question, which is one of 
law, is passed up to the Railroad Commission for decision 
under the second subsection of the act. This is an administra- 
tive body which is not created for the purpose of deciding 
grave constitutional or even legal questions. Incidentally it 
may in carrying on its functions be called upon to state what 
its construction of existing law is. This is very diflFerent 
from calling on it for decision as to whether a statutory re- 
quirement is within or without the police power. The ques- 
tion whether a telephone company would sustain a loss in a 
given case by reason of a physical connection is one of fact. 
But if loss be found, the question whether the state has the 
right to inflict it without compensation is one of law. The 
impropriety of attempting to vest this kind of jurisdiction in 
the Railroad Commission is well pointed out in Chicago & 
N, W. R. Co. V. Railroad Comm,, ante, p. 91, 155 N. W. 941. 
The situation presented is such that it is difficult to see 
how substantial loss would result to one utility in case a con- 
nection was ordered, without resulting in a corresponding 
benefit to the other. If such other is benefited, it should in 
all fairness be required to pay. It is hardly conceivable that 
the legislature had a purpose in mind to discriminate against 
public utilities by taking away the business of one without 
any compensation and handing it over to the other, if we were 
to concede for the moment that it might do so. Public con- 
venience and necessity might possibly be promoted by en- 
tirely doing away with the local exchange business of the 
plaintiff, assuming that this could lawfully be accomplished. 
But such convenience and necessity does not require that its 
business be in effect handed over as a gift to its rival If 
the right exists to do away with this asset, then the right ex- 
ists to compel the beneficiary to pay for it. Both companies 
are in La Crosse because the people through their representa- 



22] JANUAKY TERM, 1916. 40T 

Wisconsin Tel. Co. t. Railroad Commission, 162 Wis. 383. 

tives granted them franchises. The inconvenience of having 
two local telephone systems in a city is obvious to any one 
familiar with their operation. Assuming that eflScient regu- 
lation can be had, duplication cannot be justified from any 
economic standpoint, and the legislature has recognized this 
fact in the law under consideration (sec. 17977W — 74). In 
dealing with existing situations it is not supposable that it 
did not intend to deal with them equitably, and it is our opin- 
ion that the Commission took a correct view of the statute 
and that such statute does not contemplate that a connection 
should be made where it would result in substantial loss to- 
one of the utilities affected thereby, and that the word "in- 
jury" was used to denote substantial financial loss. The con- 
nection ordered entailed some expense upon the plaintiff. 
This expense was incurred in providing a facility that was 
convenient to the public in transacting business with plaint- 
iff and can in no correct sense be regarded as a loss. Neither 
could the amount of it be considered substantial in a matter 
of this kind. 

We construe the statute as not authorizing physical con- 
nection if it would deprive the plaintiff of the beneficial use 
of its local exchange. If the facts found are correct no such 
result will follow, and we cannot say that the findings of fact 
are not correct. This eliminates the contention of the plaint- 
iff that is most forcefully urged. 

Plaintiff's counsel further argue quite strenuously that the 
use of its wires and of part of its switchboard and distribut- 
ing frame is taken from it by the order of the Commission and 
given to the La Crosse Telephone Company without compen- 
sation. Whenever the wires of the plaintiff are reached and 
used over those of the local company, this is claimed to be a 
taking of the plaintiff's property for the use and benefit of 
that company because plaintiff is deprived of its property 
while the use continues. We do not understand this to be 
the situation or the legal effect of what has been done. We 



408 SUPEEME COURT OF WISCONSIN. [Ekb. 

Wisconsin Tel. Co. r. Railroad Commission, 162 Wis. 383. 

do not see how it can be said that the La Crosse Company 
either takes or uses the wires or appliances of the plaintiflP. 
Whatever appropriation there is, is by the person who is 
using the wire, and for this he pays the regular toll charge 
and something additional besides. The patron is using the 
precise thing which the plaintiff has to sell, the thing from 
which its earnings are derived, and the thing which it is 
obliged to furnish the public. It is diflScult to see how a 
patron of the La Crosse Company by using its local exchange 
to connect with the Bell Company's toll line is taking the 
property of the latter to any greater extent that he would be 
if he stepped into its central office and had the party he de- 
sired to reach called from there. It is true that a connection 
must be established between the wires of the local company 
and the switchboard of the plaintiff. To say that this is a 
taking of property is far-fetched. There may be a technical 
appropriation, but there is no taking in the constitutional 
sense. Neither would the fact that there was some expense 
incurred alter the situation, because it is the right of the state 
within reasonable limitations to require public service cor- 
porations to increase their facilities where the public interest 
requires the increasa Instead of damage resulting from the 
connection ordered, it would be more reasonalle to suppose 
that both profit and convenience would result therefrom. 
We do not see how the switchboard connection required can 
entail any substantial loss upon the plaintiff. If it should be 
conceded that there was a taking of plaintiff's property by 
either of the requirements referred to, it is a technical taking 
that results in no loss and it is entirely within the legitimate 
scope of the police power. The legislature has seen fit to ex- 
ercise such power, provided no substantial loss would result 
The authorities we deem to be quite conclusive on this point. 
Wis,, M. £ P. R. Co. V. Jacohson, 179 TJ. S. 287, 21 Sup. Ct. 
115 ; Mich. Cent. R. Co. v. Mich. R. R. Comm. 236 U. S. 
615, 35 Sup. Ct 422; Grand Trunk R. Co. v. Mich. R. R. 



22] JANUARY TERM, 1916. 409 

Wisconsin Tel. Go. y. Railroad Commission, 162 Wis. 383. 

Comm. 281 U, S. 457, 34 Sup. Ct. 152; Chicago, M. <& St. 
P. R. Co. V. Iowa, 233 U. S. 234, 34 Sup. Ct. 492 ; State ex 
rel. Oregon R. & N. Co. v. Fairchild, 224 U. S. 510, 32 Sup. 
Ct 535; Atlantic C. L. B. Co. v. North Carolina Corp. 
Comm. 206 U. S. 1, 27 Sup. Ct 585 ; Miiineapolis & St. L. 
R. Co. V. State ex rel. R. R. & W. Comm. 193 U. S. 53, 24 
Sup. Ct 396 ; Padjic T. & T. Co. v. Wright-Dickinson H. 
Co. 214 Fed. 666 ; Pioneer T. & T. Co. v. Grant Co. R. T. 
Co. (Okla.) 119 Pac. 968; Pioneer T. & T. Co. v. State, 38 
Okla. 554, 134 Pac. 398 ; Hooper T. Co. v. Nebraska T. Co. 
96 Neb. 245, 147 N. W. 674 ; State ex rel. Public Service 
Comm. V. Skagit River T. & T. Co. 85 Wash. 29, 147 Pac 
885. Under the facts found and sustained bv the evidence 
irreparable injury, within the meaning of the statute, did not 
result to the plaintiff from the order complained of. We do 
not think that the order resulted in any taking of the plaint- 
iffs property, but if there is a taking it has not resulted in 
substantial damage or irreparable injury and is one which 
the legislature had a right to provide for. 

By the Court. — The judgment appealed from is affirmed, 
without prejudice to the right of the plaintiff to make a sub- 
sequent application to set the order aside if it so desires. 

The following opinion was filed March 2, 1916: 

Timlin, J. I concur in the result, but disclaim any re- 
sponsibility for or acquiescence in what is said in the opinion 
of the court with reference to irreparable loss and to limi- 
tations there suggested upon the police power of the state. 



410 SUPKEME COURT OF WISCONSIN. [Feb. 

State ex rel. Richter y. Chadbourne, 162 Wis. 410. 

State ex eel. Richtee vs. Chadbouene. 

January IJ^ — February 22, 1916. 

Supreme court: Original jurisdiction: Constitutional law: Statutes: 
General or local? Creation of superior court in county: Aboli- 
tion of county court: Title of local law: Failure to express sub- 
ject: When statute wholly void. 

1. In view of the public rights that may be affected, and on the 

ground that the remedy through the circuit court and to this 
court by appeal Is inadequate because of the long delay involved, 
the supreme court entertains original Jurisdiction of an action 
of quo warranto to test the constitutionality of chs. 518, 589, 
Laws 1915, which create a superior court in Fond du Lac county, 
with extensive civil and criminal Jurisdiction, and abolish the 
county court and vest its powers in the new court so created. 

2. A law may be general within the meaning of sec. 21, art. VII, 

Const, (providing that "no general law shall be in force until 
published"), and at the same time be local within the meaning 
of sec. 18, art. IV (providing that "no private or local bill which 
may be passed by the legislature shall embrace more than one 
subject, and that shall be expressed in the title"). 

3. If, after giving the title of a private or local law a liberal construc- 

tion, including within its meaning all matters reasonably ger- 
mane thereto, it is found that the body of the act contains mat- 
ters of substance foreign to the title so construed, then such law 
falls within the condemnation of the constitution. 

4. Ch. 518 (amended by ch. 589), Laws 1915, creating a superior 

court in Fond du Lac county and abolishing the county court 
therein, being limited in its effect to the boundaries of that 
county, is a local law within the meaning of sec. 18, art. IV, 
Const.; and the omission from the title of any reference to the 
abolition of the county court brings it within the condemnation 
of that section. 

5. Statutes void in their main purpose or void as to a substantial 

part which is closely interrelated with other substantial parts 
thereof are void in toto. 

6. The creation of the superior court in Fond du Lac county and the 

abolition of the county court are so closely interrelated that 
ch. 518, Laws 1915, and the amending act, ch. 5S9, are void not 
merely so far as they affect the county court but in toto, 
Babnes, J., dissents. 



22] JANUARY TERM, 1916. 411 

State ex rel. Rlchter v. Chadbourne, 162 Wis. 410. 

Obioinal action of quo warranto brought in this court 
on the relation oiA.E. Richter against F. W. Chadboume to 
test the constitutionality of chs. 618 and 589 of the Laws of 
1916^ creating a superior court of Fond du Lac county and 
abolishing the county court thereof. In April, 1913, the re- 
lator was duly elected county judge of Fond du Lac county 
for a term, of six years from the first Monday of January, 

1914. On said last date he duly qualified and entered upon 
the duties of his ofiice and performed the same until Septem- 
ber 2, 1915, when the oflBce was declared abolished by the 
laws above mentioned and the jurisdiction of the county court 
transferred to the superior court of Fond du Lac county. 
The defendant, who was by the governor appointed judge of 
the newly created superior court, on September 2, 1915, de- 
manded possession of the county court rooms, records, books, 
papers, and property belonging thereto and threatened re- 
lator with legal proceedings of ouster if surrender was not 
made as demanded. Under written protest the relator sur- 
rendered possession, and at the same time he notified the de- 
fendant and the county board of supervisors that he claimed 
the law creating the superior court and abolishing the county 
court to be invalid. On September 2, 1915, the defendant 
took possession of the rooms and property of the county court 
and has since acted as judge of the superior court of Fond du 
Lac county and has exercised the ^jurisdiction theretofore ex- 
ercised by the county court. 

The provisions of ch. 518 which relate to the county court 
are as follows: 

"Sec. G5. From and after September first, 1915, all of the 
powers of the county court of Fond du Lac county and of the 
county judge shall be and hereby are transferred to and 
vested in the superior court of Fond du Lac county and its 
judge. 

"Sec. 66. From and after the first day of September, 

1915, the county court of Fond du Lac county shall be and 



412 SUPREME COURT OF WISCONSIN. [Feb. 



state ex rel. Richter v. Chadbourne, 1G2 Wis. 410. 



hereby is abolished and the office of the judge of said county 
<;ourt vacated. 

"Sec. 67. All matters and proceedings pending before the 
county court of Fond du Lac county or the judge thereof on 
September first, 1915, shall be and hereby are transferred to 
and vested in the jurisdiction of the superior court of Fond 
du Lac county and of its judge. 

"Sec. (jS. All of the records, files, proceedings and prop- 
erty of the county court of Fond du Lac county on Septem- 
ber first, 1915, shall be and hereby are turned over to and 
vested in the superior court of Fond du Lac county and its 
judge. ^ ^ . ^ 

"Sec. 69. The provisions of law with reference to the office 
of register in probate of the county court of Fond du Lac 
county shall apply to and provide for a register in probate 
for the superior court of Fond du Lac county." 

Ch. 518 was entitled "An act to create a superior court in 
the county of Fond du Lac." Ch. 589 was entitled "An act 
to amend sections 3, 5, 12 and 64 of chapter 518 of the Laws 
of 1915, relating to the superior court of Fond du Lac 
county." The amendments do not affect any question ma- 
terial to the determination of the case. 

For the plaintiff there were briefs by Doe, Ballhom, 
Wilkie & Doe, and oral argument by /. B, Doe and Harold 
M, Wilkie. 

For the defendant there was a brief by H. E. Swett, T. L. 
Doyle, and R, L, Morse, attorneys, and /. M, Oooding, F. A, 
Foster, D. D. Sutherlatid, L. E. Lurvey, and F. Ryan Duffy, 
of counsel ; and the cause was argued orally by Mr. Doyle 
and Mr, Morse. 

ViNJE, J. In the Income Tax Cases, 148 Wis. 456, 134 
N. W. G73, 135 X. W. 164, the question of the original juris- 
diction of this court was treated so fully that only a brief ref- 
erence to the subject need now be made. It was said in sub- 
stance that where in a matter of public right the remedy in 



22] JANUARY TERM, 1916. 413 



State ex rel. Richter v. Chadbourne, 162 Wis. 410. 



the lower court is entirely lacking or absolutely inadequate 
this court will take original jurisdiction to the end that jus- 
tice shall not be denied. In this case there is no lack of 
jurisdiction in the circuit court, but in view of the public 
rights that may be affected bv the acts of the newlv created 
court whose process runs to all parts of the state and which 
has civil jurisdiction up to $25,000, and jurisdiction of all 
eriminal cases except homicide, it is deemed that the remedy 
through the circuit court and to this court by appeal is inade- 
quate because of the long delay involved. The rights of 
litigants who may desire or be compelled to resort to that court 
and the importance of the probate business of Fond du Lac 
county that must be transacted therein, alike call for a speedy 
determination of the question of the validity of its creation. 
For these reasons this court entertains original jurisdiction 
of the casa 

The relator urges a number of constitutional objections to 
the validity of ch. 518 of the Laws of 1915, creating the 
court. Many of them are of such importance and so far 
reaching in their results that it has been thought best not to 
pass upon them in this case since its disposition can be rested 
upon only two of them, namely: first, that ch. 518 is a local 
hill within the meaning of sec. 18, art. IV, of the constitu- 
tion, and second, that its subject is not expressed in the title 
as required by said section, which reads : "No private or local 
bill which may be passed by the legislature shall embrace 
more than one subject, and that shall be expressed in the 
title." 

In Milwaukee Co. v. Isenring, 109 Wis. 9, 85 X. W. 131, 
the cases in this state involving the question of when a law is 
general or local within the meaning of the constitutional pro- 
vision above quoted were reviewed at length, and it was there 
held that a law might be public and local, or it might be gen- 
eral in the restricted sense in which the term is used in sec 
21, art VII, of the constitution, which provides that "no gen- 



414 SUPREME COUET OF WISCONSIN. [Feb. 

State ex rel. Rlchter y. Chadbourne, 162 Wis. 410. 

eral law shall be in force until published," and at the same 
time be a local law; the word "general" as here used mean- 
ing public in the sense that it aflFects the public at large in a 
single defined subdivision of the state such as a county, town, 
city, or village, or a collection of such localities not constituting^ 
a legitimate class for purposes of legislation, and still is local 
within the meaning of sec. 18, art. IV, because affecting but 
a single locality not constituting a legitimate class for legis- 
lation. It was also held in that case that a bill entitled "An 
act in relation to sheriff's fees," which dealt with the compen- 
sation of the sheriff of Milwaukee county only, was local in 
character. In Wagner v. Milwaukee Co. 112 Wis. 601, 8& 
N. W. 677, the same construction was given to an act au- 
thorizing any county to build a viaduct costing not less than 
$80,000, with other conditions, because it could apjplv only to 
Milwaukee county. 

The law in question deals with the establishment of a su- 
perior court in Fond du Lac county and the abolishment of 
its county court. It is limited in its effect to the boundaries 
of Fond du Lac county and therefore local in character. 
True, it is public or general in the sense that it may affect 
publicly or generally all the people of the county or outside 
thereof, but it deals with the establishment and abolition of 
courts of a specified locality which does not constitute a class 
for purposes of legislation. So within the rule laid down in 
the case of Milwaukee Co, v. Isenring, supra, it must be held 
to be a local law coming within the provisions of sec. 18, art. 
IV, of the constitution. 

The failure of counsel for defendant to realize that a law 
may be general or public within the meaning of sec. 21, art. 
VIT, and still be local within the meaning of sec. 18, art. IV, 
has led them to claim that acts like the one in question have 
been held to be not local in these cases : In re Boyle, 9 Wis. 
204; In re Bergin, 31 Wis. 383; State ex rel Atfy Oen. v. 
Foote, 11 Wis. 14; Meshke v. Van Doren, 16 Wis. 319. 



22] JANUARY TERM, 1916. 415 

State ex rel. Richter t. Chadbourne, 162 Wis. 410. 

Only the case of In re Bergin, 31 Wis. 383, lends color 
to this claim. There the question was whether ch. 137, Laws 
of 1871, which authorized the commencement of criminal 
prosecution by information instead of indictment, applied to 
the municipal court of Milwaukee county. It was claimed 
it did not because the act creating that court was a local act. 
The court says : "A short and most conclusive answer to this 
position is, that this court in In re Boyhj 9 Wis. 264, held 
that the act of 1859 establishing such a court is a general 
law." This ruling must be deemed to stand on a par with 
that of Zitshe v. OoMberg, 38 Wis. 216, referred to by 
Mr. Justice Marshall in Milwaukee Co. v. Isenring, 109 
Wis. 9, 14, 85 N. W. 131, as a case where, without discus- 
sion, the words "local" and "general" in its restricted sense 
were held not applicable to the same act. For in In re Boyle 
the only point decided bearing upon the question under con- 
sideration was that the act creating the municipal court of 
Milwaukee county was a general act within the meaning of 
sec. 21, art VII, of the constitution, requiring it to be pub- 
lished before it took effect In Siate ex rel. Att'y Oen. v. 
Fooie, 11 Wis. 14, the same act was held to be public and 
that judicial notice of its publication would be taken. In 
Meshke v. Van Doren, 16 Wis. 319, an act conferring upon 
the county court of Winnebago county jurisdiction concur- 
rent with the circuit court up to $500 was held to be a public 
act of which the court would take judicial notice. So it ap- 
pears that none of the cases relied upon except In re Bergin, 
31 Wis. 383, bear out the claim made, and that the latter case 
as to this question was based upon the misconception that an 
act could not be both general and local, though the court in 
State ex rel. Cothren v. Lean, 9 Wis. 279, after a full discus- 
sion and mature consideration had decided that it could. 
That such decision has since been quite consistently adhered 
to is pointed out in Mihvaukee Co. v. Isenring^ 109 Wis. 9, 
85 K W. 131. 



416 SUPREME COURT OF WISCONSIN. [Feb. 

state ex rel. Richter v. Chadboume, 162 Wis. 410. 

The readjustment of local courts in Fond du Lac county 
constituted the subject of ch. 518, and the main purpose 
thereof was twofold : first, the creation of a new court called 
the superior court, and second, the abolition of the county 
court. Of such main purpose only one half is expressed in 
the title, namely, the creation of the new court. The aboli- 
tion of the county court is not mentioned therein, though such 
court was created pursuant to constitutional provisions as 
early as 1849 and has continued in existence ever since. Not 
only is that true of Fond du Lac county, but it is true of 
every other county in the state since its organization as a 
county. All counties have county courts exercising general 
probate jurisdiction, while some have limited civil or civil 
and criminal jurisdiction in addition to their probate juris- 
diction. Pursuant to the provisions of sec. 14, art. VII, of 
the constitution, ch. 86 of the Statutes of 1849 abolished the 
office of judge of probate and established county courts in 
each of the counties of the state. The constitution also pro- 
vides for the establishment of municipal and inferior courts. 
Sec. 2, art. VII. We have at present thirty-three municipal 
courts, one superior court, one district court, and one civil 
court consisting of seven branches. In the establishment 
of all these courts the probate jurisdiction of a county court 
has not been invaded, much less has such a court been abol- 
ished. It is obvious, of course, that, where a new court is 
created in a locality already supplied with courts having 
jurisdiction of all cases that may arise, the new court must 
at least have concurrent jurisdiction with existing ones, and 
that it may take away entirely some jurisdiction from other 
courts. But the creation of one court does not naturally or 
reasonably imply the abolishment of another, and especially 
is this so where the new court is styled a superior court. 
Previous to the attempted abolishment of the court in ques- 
tion we have had only two superior courts, that of Milwaukee 
county, now abolished, and that of Douglas county. The 



22] JANUARY TERM, 1916. 417 

state ex rel. Richter t. Chadbourne, 162 Wis. 410. 

creation of neither of those interfered with the probate juris- 
diction of the county court of the county in which it was or- 
ganized or abolished an existing court. Since during the es- 
tablishment of all these courts the probate jurisdiction of 
county courts has been kept inviolate, how could the people 
of Fond du Lac county dream that they were to be deprived 
of their county court when they read that ch. 518 was ^'An 
act to create a superior court in the county of Fond du Lac i" 
Conceding, as this court has held time and again, that a title 
must be liberally construed, and must be held to include 
within it anything reasonably germane to the expressed sub- 
ject, still it cannot, in view of the history of the creation of 
previous courts as well as in view of the lack of any logical con- 
nection between the creation of a superior court and the abolish- 
ment of a coimty court, be held that the title in question in- 
cludes within it the idea that the county court of Fond du 
Lac county was to be abolished. 

So far as it has come to our attention, acts abolishing an 
existing court and creating a new one or transferring the en- 
tire jurisdiction of one court to another, have referred to the 
existing court in their title. Thus ch. 107 of the Laws of 
1873 changed the name of the police court to the municipal 
court and enlarged its jurisdiction. Its title was ''An act 
relating to the police court of the city of Madison.'* Ch. 146 
of the Laws of 1876 established a municipal court in Mara- 
thon county. In 1879 the court was abolished and a new one 
created by ch. 115 of the Laws of 1879. The title of the 
latter act was ''An act to establish a municipal court in the 
city of Wausau and county of Marathon, and to repeal chap- 
ter one hundred and forty-six^ general laws of 1876/' The 
superior court of Milwaukee county was created by ch. 125 
of the Laws of 1887. In 1903 it was abolished by ch. 1 of 
the laws of that year entitled : "An act to repeal the acts es- 
tablishing a superior court for Milwaukee county and pro- 
viding for the transfer of causes and proceedings pending 
Vol. 162 — 27 



418 SUPREME COURT OF WISCONSIN. [Feb. 

state ex rel. Rlchter y. Chadboume, 162 Wis. 410. 

therein to the circuit court for the second judicial circuit^* 
An examination of nearly a dozen acts creating other inferior 
courts of record in this state has failed to disclose a single 
case of the inclusion of matters foreign to the main subject 
of the act 

The constitutional prohibition against the passage of pri- 
vate or local laws whose subjects are not expressed in their 
title has a substantial foundation for its existence. That it 
was considered important by the framers of the constitution 
is evidenced by the fact that it found a place in the basic law 
of the state. It is of no less importance now than then. 
The mischief of smuggling private or local laws through the 
legislature under false, inadequate, or misleading titles is a 
serious one, and whenever such smuggling, whether inten- 
tional or not, is found to have taken place, courts should not 
hesitate to declare a law so passed invalid. No branch of 
the government however high is above a constitutional prohi- 
bition or safeguard, and no citizen however low is outside 
their beneficial protection. Within the scope of its operation 
the constitution acts upon all alike. 

If after giving the title of a private or local law a liberal 
construction, including within its meaning all matters rea- 
sonably germane thereto, it is found that the body of the act 
contains matters of substance foreign to the title so construed, 
then such law falls within the condemnation of the constitu- 
tion. We think the titles of chapters 518 and 689 of the 
Laws of 1915, though liberally construed, fail to meet the re- 
quirements of the basic law and hence they are declared invalid. 

They are void not only in so far as they affect the county 
court but in toto, because from the whole scheme of the acts 
we cannot assume the legislature would have created a su- 
perior court in Fond du Lac county without abolishing the 
county court. The two are so interrelated in the acts that 
they must stand or fall together. Statutes void in their 
main purpose or void as to a substantial part which is closely 



22] JANUARY TERM, 1916. 419 

state ex rel. Richter t. Chadbourne, 162 Wis. 410. 

interrelated with other substantial parts thereof are void in 
toto. Chicago, M. & St. P. R. Co. v. Rock Co. 8. Co., ante, 
p. 374, 156 K W. 607, and eases cited. 

By the Cowrt. — It is considered, ordered, and adjudged 
that the defendant, F. W. Chadbourne, has no right to the 
office of county judge of Fond du Lac coynty or to the exer- 
cise of the functions or duties thereof, and that he be ousted 
and excluded therefrom. 

That the relator, A. E. Richter, is and has been since the 
Ist day of September, 1915, entitled to the said oflSce by vir- 
tue of the election and qualification alleged in the complaint, 
and to the franchises, privileges, and emoluments thereof, 
and that he have and recover of the defendant, F. W. Chad- 
bounie, his costs of this action, to be taxed by the clerk. , 

Barnes, J. (dissenting). The method here pursued of 
disposing of a public officer is not one calculated to create a 
very favorable impression. What the reasons were for at- 
tempting to legislate Judge Richter out of office I do not 
know. The fact that the movement seems to have had the 
backing of nearly the entire bar of Fond du Lac county nega- 
tives the idea that partisan politics entered into the matter. 
At the same time the lengthy postponement of the time at 
which an election could be held would seem to indicate that 
the Judge might be more popular with the electors than he 
was with the lawyers. These are considerations, however, 
which do not concern this court. The question is. Had the 
legislature the right to enact such a law as it did, and, if so, 
did it proceed in a constitutional manner in doing so ? 

The constitution expressly authorizes the legislature to 
abolish the office of judge of probate. Sec. 14, art. VII, 
Const. This is what Mr. Richter was. So I think we have 
no debatable question so far. There is some conflict in the 
decisions as to whether such a law as we have here is general 
or local. Perhaps the weight of authority accords with the 



420 SUPREME COURT OF WISCONSIN. [Ebb. 

State ex rel. Rlchter v. Chadbourne, 162 Wis. 410. 

conclusion of the court ; so I find no fault with the decision 
in this regard* I do not believe that the title is fatally de- 
fective. 

In speaking of the sufficiency of the title to a local law, 
this court said in In re Southern Wis. P. Co. 140 Wis. 245, 
251, 122 N.W. 801: 

"An act of the legislature should not be adjudged invalid 
except upon clear and unmistakable 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 poe- 
sibla Mills v. Charleton, 29 Wis. 400. The title to an act 
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. Mil- 
waukee Co. V. Isenring, 109 Wis^ 9, 24, 85 K W. 131. The 
title to a legislative act must not only be liberally construed, 
but the act should not be condemned as insufficient because of 
the title, unless, giving such title the largest scope which rea- 
son 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." 

The law in question is entitled "An act to create a superior 
court in the county of Fond du Lac." Every provision in 
it which confers jurisdiction is germane to the title. Cer- 
tainly the legislature could lawfully under this title transfer 
to the new court every shred of jurisdiction theretofore exer- 
cised by the county judge and leave him so that he could not 
perform a single judicial function. To say that it could not 
go farther and wipe out the office, where there was nothing 
left for the officer to do, without stating in the title that such 
was one of the purposes of the act, is to my mind drawing. a 
pretty fine line. Of course the purpose of the constitutional 



22] JANUAEY TERM, 1916. 421 



Curtice ▼. Chicago ft N. W. R. Co. 162 Wis. 421. 



provision is. apparent. But in these days when great pub- 
licity is given to pretty much everything that is so, and to a 
great deal that is not so, the chances that people were not in- 
formed as to what was going on are remote. The legislature 
must be given credit for honesty of purpose and of intending 
at least to follow the mandates of the constitution. We can- 
not assume that there was any intention on its part to smug- 
gle through l^slation without giving interested parties an 
opportunity to be heard. Having taken all jurisdiction 
away from the county judge, as the legislature had the un- 
doubted right to do under the title, I think the clause abol- 
ishing the office was germane to the act 



CiiETiOB, Appellant, vs. CnicAGO & Northwestbbn Rail- 
way Company, Respondent 

Fel>ruary 1—Fel>ruary 22, 1916. 

Jtailrocids: Negligence: Injury to employee: Action under state or fed- 
eral law? Interstate commerce: Pleading: Amendment: Chang- 
ing cause of action: Limitation of actions: Construction of 
pleading: Intent of counsel. 

1. In an action by an employee against a railway company for an 
Injury alleged to have been caused by negligence the complaint 
did not show that at the time of the injury the parties were en- 
gaged in interstate commerce. The answer alleged that fact 
and that the cause of action, If any, was under the federal stat- 
nte, not under the state law. More than two years after the in- 
Jury plaintiff was allowed to amend the complaint so as to al- 
lege that the parties were engaged In interstate commerce when 
the injury occurred. Defendant then amended its answer so as 
to set up the federal statute of limitations. Held, that the 
amendment to the complaint did not change the cause of action 
or substitute a different one, but related back to the original 
complaint and cured defects therein; hence the statute of limi- 
tations was no defense. 



422 SUPKEME COURT OF WISCONSIN. [Feb. 

Curtice v. Chicago & N. W. R. Co. 162 Wia. 421. 

2. A statement, in such case, by plaintiff's counsel that in the origi- 
nal complaint he intended to state a cause of action under the 
state law is immaterial, the pleading itself not being ambiguous 
or of doubtful meaning. 

8. The answer having set up the facts omitted from the complaint 
and necessary to perfect the cause of action under the federal 
statute, defendant was in no way surprised or prejudiced by 
the amendment of the complaint so as to allege the same facts. 
Babkes and Vinje, JJ., dissent. 

Appeal from a judgment of the circuit for Brown county : 
S. D. Hastings, Circuit Judge. Reversed. 

This action was brought to recover for personal injuries. 
The original complaint, omitting title, was as follows: 

"First. That the defendant is a railway corporation, or- 
ganized under the laws of the state of Wisconsin ; that at all 
times herein mentioned it owned and operated a line of rail- 
way in and through said state and between the cities of Mari- 
nette and Green Bay, Wisconsin. 

"Second. That at all times hereinafter stated, when in- 
jured, plaintiff, a resident of said city of Green Bay, was in 
the employ and service of defendant as a freight conductor 
on one of defendant's freight trains operating between said 
cities; that on the 9th day of October, 1911, while running 
southerly and about to head in onto the siding at Little Su- 
amico, a station on said line in Oconto county, the defend- 
ant's said freight on which plaintiff then was employed as 
conductor was carelessly and negligently run into by one of 
defendant's passenger trains following after before the 
freight had time to pull onto the siding, and plaintiff was in- 
jured as hereinafter alleged. 

"Third. On information and belief plaintiff alleges that 
defendant's servants in charge of the said passenger train 
knew of its presence and that the said passenger was follow- 
ing close after on the same block ; that said servants had been 
warned to that effect by a caution card or notice delivered to 
them at Pensaukee, a station next north of Little Suamico, 
providing and directing that they proceed with caution pre- 
pared to stop within their vision, and that they might expect 
to find Extra 116, plaintiff's said freight train, within the 



22] JANUARY TERM, 1916. 423 

Curtice v. Chicago ft N. W. R. Co. 162 Wis. 421. 

block; that, notwithstanding, defendant's servants in charge 
and control of said passenger train did not proceed with cau- 
tion and so as to be able to stop within the vision, but reck- 
lessly, carelessly, and n^ligently run said passenger train at 
a high and dangerous rate of speed, and so run it against 
and into the said freight at said place. 

"Fourth. That the defendant's servants, the train dis- 
patcher and others, having control of the running of said 
trains, while the said freight was proceeding south, carelessly 
and negligently suffered and caused the said passenger train 
to be let onto the said block with the said freight, thereby 
causing the said passenger to enter the block and proceed on 
its way southerly before the block was clear and before the 
freight had left it, which made it possible and likely that 
such an accident might happen, 

"Fifth. That the said passenger train, by reason of the 
aforesaid negligence, ran into the said freight with great 
force and violence, and the plaintiff was, by the said negli- 
gence, severely and greatly injured, to wit, plaintiffs left hip 
and leg were severely sprained and injured ; that he was con- 
fined to the hospital for some ten days on account thereof and 
suffered great pain; that said injury has continued, causes 
the plaintiff pain, and renders him unable to do many kinds 
of manual labor that he could formerly do; that said injury 
has caused plaintiff loss and damage in expense for treatment 
and in loss of time and earnings, still does, and will in the 
future greatly impair plaintiff's ability to earn a livelihood; 
all to his damage in the sum of $5,000. 

"Wherefore plaintiff demands judgment against the de- 
fendant for said sum and for costs." 

Among other things the defendant set up facts showing 
that at the time of injury the plaintiff and defendant were 
engaged in interstate commerce, and that the cause of action, 
if any existed, was under the federal act, not under the laws 
of the state of Wisconsin. Judgment was demanded by de- 
fendant abating the action. 

Afterwards the plaintiff was allowed to amend his com- 
plaint by adding allegations to the effect that defendant's 



424 SUPREME COURT OF WISCONSIN. [Feb. 

Curtioe y. Ghlcaco ft N. W. R. Co. 162 WiB. 421. 

road runs through the state of Michigan and between the 
cities of Green Bay, Wisconsin, and Menominee, Michigan, 
and that plaintiff and defendant were at the time of the in- 
jury alleged engaged in interstate commerce. Defendant 
then amended its answer setting up the statute of limitations. 

At the time of the amendment of the complaint two years 
from the time of the alleged injury had expired. The oourt 
below held that the original cause of action was one under the 
state law, and that the amendment of the complaint set up a 
cause of action under the federal act and that such action was 
barred by the two-year statute, and sustained the defendant's 
demurrer and dismissed the complaint 

The plaintiff appealed to this court from the judgment dis- 
missing the complaint 

For the appellant there was a brief by Martin, Martin & 
Martin, and oral argument by Oerald Clifford. 

Edward M. Smart, for the respondent 

Kebwin, J. The point involved upon this appeal, under 
the assignments of error, is whether the amended complaint 
set up a different cause of action than that stated in the origi- 
nal complaint The contention of the appellant is that there 
is but one cause of action, and that under the federal act; 
while on the part of the respondent it is insisted that the 
original complaint set up a cause of action under the state 
law, and that the amendment changed it from a cause of ac- 
tion under the state law to one under the federal act 

It is obvious that but one cause of action existed upon all 
the facts stated in the amended complaint It is equally ob- 
vious that the original complaint was defective in failing to 
state certain facts going to show that at the time the injury 
was sustained the parties were engaged in interstate com- 
merce. Nothing stated in the amended complaint was in 
conflict or inconsistent with the allegations of the original 
complaint The cause of action upon which the plaintiff 



22] JANUAKY TERM, 1916. 425 



Curtioe ▼. Chicago ft N. W. R. Co. 162 WiB. 421. 



floaght to recover damages was defectively stated in the origi- 
nal complaint and the defects were cured by the amendment 
But one cause of action was stated. The amendment re- 
lated back to the original complaint and became a part of it, 
hence the statute of limitations was no defense. Missouri, 
K. & T. R. Co. V. Wulf, 226 U. S. 570, 33 Sup. Ct. 135; 
OainesvUle M. B. Co. v. Vandiver, 141 Ga. 350, 80 S. E. 
997 ; Bixhr v. Pa. R. Co. 201 Fed. 553 ; Smith v. A. C. L. 
R. Co. 210 Fed. 761; Cincinnati, N. 0. £ T. P. R. Co. v. 
Goode, 163 Ky. 60, 173 S. W. 829; Yichery v. N. L. N. R. 
Co. (Conn.) 89 Atl. 277; Schieffelin v. Whipple, 10 Wis. 
81 ; CaUahan v. C. & N. W. R. Co. 161 Wis. 288, 154 N. W. 
449. 

G)unsel for respondent has favored us with a very able 
and exhaustive discussion of cases touching the question in- 
volved and we confess that there is some lack of harmony in 
the decisions. We think, however, that most, if not all, of 
the authorities cited by counsel for respondent can be dis- 
tinguished from the instant case. 

We shall not attempt to discuss the numerous cases re- 
ferred to by counsel for respondent except two which are par- 
ticularly relied upon, namely, Union P. R. Co. v. Wyler, 158 
U. S. 285, 15 Sup. Ct 877, and Meinshausen v. A. Get- 
ielman B. Co. 133 Wis. 95, 113 N. W. 408. 

In Meinshausen v. A. Gettelman B. Co., supra, there were 
two causes of action, the amended complaint setting up a 
new and different cause of action from that set up in the 
original complaint, therefore the case is not in point 

We think a careful examination of Union P. R. Co. v. 
Wyler, supra, will show that it is clearly distinguishable 
from the instant casa In the Wyler Case the amendment 
changed not only the cause of action but the nature and sub- 
stance of the cause of action. The whole discussion in the 
opinion in the Wyler Case goes upon the idea that an entirely 
new and different cause of action cannot be set up by way 



426 SUPEEME COURT OF WISCONSIN. [Feb. 

Curtice V. Chicago ft N. W. R, Co. 162 Wis. 421. 

of amendment and thus escape the plea of the statute of limi- 
tation on the ground that the new cause of action related back 
to the time of filing the complaint But the facts in the 
Wyler Case and the reasoning in the opinion have no appli- 
cation to a case where there is but one cause of action which 
is defectively stated and the defect cured by amendment. 

The learned trial judge below seems to have attached im- 
portance to the fact that counsel for appellant stated that he 
intended to state a cause of action under the state law. We 
think this statement wholly immaterial. The mental opera- 
tions of counsel could not create two causes of action where 
but one existed. The intent of the pleader might be signifi- 
cant or helpful in giving construction to an allegation which 
was ambiguous or of doubtful meaning. But there is no 
such question here. 

There is another feature of this case which is worthy of 
notice. When the defendant answered the original com- 
plaint it set up the facts which were omitted in the plaintiff's 
defective complaint and necessary to perfect the cause of ac- 
tion under the federal act and which were afterwards set up 
by plaintiff in the amendment complained of. The defend- 
ant was therefore in no way surprised or prejudiced by the 
amendment. Doubtless the case could have gone to trial on 
the pleadings as originally framed and the complaint on the 
trial amended or treated as amended in accordance with the 
issues made by the pleadings as originally framed. Calla- 
han V. C. & N. W. R. Co. 161 Wis. 288, 154 N. W. 449; 
Bieri v. Fonger, 139 Wis. 150, 120 K W. 862; Graher t\ 
D., 8. S. & A. B. Co. 159 Wis. 414, 150 K W. 489; Wabash 
B. Co. V. Hayes, 234 U. S. 86, 34 Sup. Ct. 729. 

As said in Union P. B. Co. v. Wyler, 158 U. S. 285 (15 
Sup. Ct. 877) at pp. 297, 298, "The whole doctrine of rela- 
tion rests in a fiction of law, adopted to subserve, and not to 
defeat right and justice." 

We are convinced that the amendment did not introduce a 



22] JANUARY TERM, 1916. 427 

Curtice V. Chicago & N. W. R. Co. 162 Wis. 421. 

new cause of action, but cured the defective cause of action 
originally pleaded, hence the amendment was proper. 

By the Court. — The judgment is reversed, and the cause 
remanded for further proceedings according to law. 

Barnes, J. (dissenting). The original complaint care- 
fully avoided any reference to the federal statuta It con- 
tained no allegation tending to show that plaintiff was en- 
gaged in interstate commerce when hurt. It shows with con- 
siderable care and particularity that he was engaged in intra- 
state commerce. Had a motion been made to make the 
pleading more definite and certain in reference to the nature 
of plaintiff's employment it would have received short shrift, 
because it was neither indefinite nor uncertain in this re- 
gard. If the action had been begun on this complaint in the 
federal court it would, I think, very promptly have been held 
that it did not state a cause of action under the federal act. 
Defendant pleaded as a defense to the action that plaintiff 
was engaged in interstate commerce when injured. Had 
plaintiff demurred to this defense the demurrer would, I be- 
lieve, have been just as promptly overruled, on the theory 
that such answer, if true, stated a good defense. A perfect 
cause of action was stated under the law of Wisconsin, while 
no cause of action was stated under the law of the United 
States. To be sure, little need be added to the complaint to 
bring the case under the federal law. The statement of the 
simple fact that at the time plaintiff was injured he was en- 
gaged in interstate commerce would have been all-sufiicient. 
But the pleading of this simple fact would produce impor- 
tant results. Without such allegation the rights of the par- 
ties would have to be determined by the existing law in one 
jurisdiction. With it they would have to be determined by 
the law of another jurisdiction. The change indicated would 
work a change from state to federal law, and there are sub- 
stantial and important differences between them. Under the 



428 SUPKEME COUKT OF WISCONSIN. [Feb. 

Curtice v. Chicago & N. W. R. Co. 162 Wis. 421. 

state law contributorj negligence is a complete defense where 
the negligence of the defendant is less than that of the serv- 
ant If the servant is negligent but his negligence is less 
than that of the master^ there can be a full recovery. Sec. 
1816, Stats. 1911. Under the federal act contributory neg- 
ligence is not a defense, but affects the amount of recovery. 
Under the state law assumption of hazard is no defense to 
such an action as we have here. Under the federal law it is 
a complete defense. Under the state statute defendant 
would be liable for the negligence of a fellow-servant when 
such negligence caused the injury in whole or in greater part. 
The federal statute is different in verbiage at least The 
manner of submitting the two actions is different and the 
beneficiaries are different. A cause of aojbion includes the 
facts showing plaintiff's right and its violation by the defend- 
ant McArthur v. Moffet, 143 Wis. 564, 128 N. W. 445. 
Enough has been said to show that a person who is injured 
by a railway company while engaged in intrastate commerce 
has different rights and a different cause of action from what 
he would have, had he been injured while engaged in inter- 
state commerce. 

It is true that the plaintiff did not in fact have two causes 
of action in reference to which he might exercise a right of 
election. There was only one cause of action, and whether 
it came under state or federal law depended on the facts. 
Undoubtedly the pleader in the present case was mistaken as 
to what the facts were when the complaint was drawn. It 
was stated on the oral argument by coimsel for the appellant 
that it was supposed that the train on which plaintiff was em- 
ployed when injured started from Marinette, when as a mat- 
ter of fact it started from Menominee. Instead of its being 
an intrastate train it was an interstate train. On the facts 
before him the able counsel for the plaintiff stated a perfectly 
good cause of action under the state law, such a cause as he 
frankly said he intended to state. There is no defect in the 



22] JANUARY TERM, 1916. 429 



Curtice v. Chicago & N. W. R. Co. 162 Wis. 421. 



pleading. It is almost a model. Counsel found himself in 
the position he would have been in had he brought an action 
of tort and found when he came to trial that on his evidence 
he could only recover on contract; or if he had brought an 
action on express contract but foimd that he could not prove 
it and would have to recover on quantum meruit if at all. 
The cause of action declared on would be different from the 
one on which recovery could be had. Now if a client dis- 
closes to )iis lawyer the facts on which he claims to have a 
right of action against some one and such facts would give a 
right of action, and the pleader, following the facts as they 
have been detailed to him, states a perfectly good cause of ac- 
tion in the complaint drawn, I do not believe there is any in- 
firmity in the pleading or that it contains a defective state- 
ment of a cause of action. The trouble is with the facts, not 
with the pleading. A cause of action is defectively stated 
when some material allegation is omitted therefrom and with- 
out which the complaint on its face does not state any cause 
of action whatever. Whether a cause of action is stated, as 
well as the nature of the cause of action, must be determined 
from an examination of the complaint itself and not from a 
consideration of extraneous facts which are not set forth in 
the pleading. It is a contradiction to say in one breath that 
a complaint states a good cause of action and in the next to 
say that it states a defective cause of action. Whether it is 
one or the other must be determined from the face of the 
pleading. It cannot be that a good cause of action cannot be 
set forth in a complaint simply because the party is unable to 
prove the necessary facts to establish it 

In this instance the plaintiff was anxious to bring his case 
under the state law and the defendant was desirous that it 
should fall under the federal act Both were of the mind 
that it would be more advantageous for the defendant to have 
the case come under the federal law. This court had decided 
that unless the question of the application of the federal law 



430 SUPREME COURT OF WISCONSIN. [Feb. 

Curtice v. Chicago ft N. W. R. Co. 162 Wis. 421. 

was raised in some appropriate way before or during the 
trial, the defendant would be held to have waived the benefit 
of it. Leora v. M., St. P. & S. S. M. R. Co. 156 Wis. 386, 
146 N. W. 520. So the defendant to protect its rights here 
promptly raised the question at the first opportunity by ap- 
propriate averments in its answer. Under our Code system 
of pleading, the allegation stood as denied unless the plaintiff 
chose to amend his complaint by alleging the same fact. It 
is said in the opinion of the court that because of this allega- 
tion the defendant was in no way surprised or prejudiced by 
the amendment and that the case could have ^'gone to trial on 
the pleadings as originally framed and the complaint on the 
trial amended or treated as amended in accordance with the 
issues made by the pleadings as originally framed." This is 
a rather jaunty way to dispose of what will, I think, at least 
be conceded to be a close question. One of the issues raised 
by the original pleading was whether the plaintiff was en- 
gaged in interstate commerce when hurt. The defendant 
took the affirmative and the plaintiff the negative of the ques- 
tion. If the defendant prevailed it would be entitled to judg- 
ment dismissing the complaint. If plaintiff then brought 
the proper action the bar of the statute of limitations would 
be a complete defense. I hardly think the court seriously in- 
tends to hold that an amendment which deprives a litigant of 
the benefit of a statute of limitations is one which in no way 
prejudices him. Neither do I think that, where a defendant 
sets up proper defensive matter in an answer which by force 
of law stands as denied by the plaintiff, the court can there- 
after, for the purpose of avoiding a limitation statute, trans- 
fer such allegation to the complaint as of the time it was 
drawn. A defendant should not be made to suffer for draw- 
ing a proper pleading. The averment was essential unless 
defendant was willing to waive the benefit of the federal law. 
In this case no trap was laid for plaintiff. He was promptly 
advised of the dangers ahead. He did not heed the warning 



22] JANUARY TERM, 1916. 431 



Curtice v. Chicago & N. W. R. Co. 162 WlB. 421. 



given, but because it was given it is held that defendant was 
not surprised or prejudiced by what was subsequently done. 
Doubtless the parties could have gone to trial on the plead- 
ings as originally framed. If they did, judgment would- 
have to go for defendant if it prevailed on its contention 
that the case was within the federal statute. There would 
be no occasion to amend or treat as amended the original com- 
plaint to make it conform to the issues made by the '^plead- 
ings as originally framed," because such issues were made up 
by the original complaint and answer. It seems to me to be 
rather grasping at straws in this case to say that the com- 
plaint is in any way aided or improved by what is alleged in 
the answer. If defendant sought a continuance on the 
ground of surprise when the amended complaint was served, 
a court would say at once that it was not surprised. But 
there is no claim of surprise. Defendant is relying on a stat- 
ute of limitation, and such a defense is no longer unconscion- 
able in this stata Whereatt v. Worth, 108 Wis. 291, 84 N. 
W. 441. 

I dislike to see tlie plaintiff lose what may be a meritorious 
cause of action because of the mistake made here. The ques- 
tion before us is one which arises under the laws of the 
United States and one on which the federal supreme court 
has the final say. Its decisions in such cases are not only val- 
uable as precedents, but are binding on this court If I read 
those decisions aright, that court has held that where rights 
are asserted under one law in an original pleading and under 
another by an amended pleading, in other words, where there 
is a change from law to law, there is a change of causes of ac- 
tion, and that if a limitation statute has run on the amended 
cause of action at the time the amendment is made, it is a 
good defense although it had not run when the action was 
originally commenced. This is what I think the court de- 
cided in Union P. R. Co. v. Wyler, 158 U. S. 285, 15 Sup. 
Ct 877. This decision was approved in the Wulf Case 



1 



432 SUPREME COURT OF WISCONSIN. [Feb. 

Curtice r. Chicago ft N. W. R. Co. 162 Wi8. 421. 



(Missouri, K. £ T. B. Co. v. Wulf) 226 U. S. 570, 33 Sup. 
Ct. 135, where the distinction between it and the case under 
consideration was clearly pointed out and where it was held, 
in accordance with the uniform current of authority, that an 
amendment changing the beneficiary was not a change of 
causes of action. 

In the opinion of the court it is stated that the Wyler Case 
is clearly distinguishable from the present case, because there 
the amendment changed not only the cause of action but the 
nature and substance of the cause of action. 

I am unable to see any distinction in principle between the 
two cases. In the Wyler Case plaintiff was injured in Kan- 
sas and brought a common-law action to recover damages for 
his injury in the state of Missouri, alleging as a ground of 
n^ligence that defendant employed an incompetent fellow- 
servant who was responsible for plaintiff's injury. There- 
after plaintiff, probably doubting his ability to prove the 
cause of action stated, amended his complaint by alleging 
that he was injured through the negligence of a fellow-serv- 
ant, referring to the same servant who was alleged to be in- 
competent in the original complaint. The amendment fur- 
ther set forth that the injury occurred in the state of Kansas 
and that under a statute of that state the master was liable for 
an injury which occurred through the negligence of a fellow- 
servant. To this amendment the defendant set up by way of 
defense that the statute of limitations had run at the time the 
complaint was amended, and the question and the sole ques* 
tion in the case was whether there was a change of causes of 
action. The original action, as before stated, was the usual 
common-law action for negligence. The amended complaint 
was based on the common law as amended in the particular 
stated by a statute of the state of Kansas. The court held 
that there was a change of causes of action because there was 
a change from law to law. 

In the instant case the action was brought under the com- 



22] JANUAEY TERM, 1916. 433 



Curtice v. Chicago & N. W. R. Co. 162 Wis. 421. 



mon law as amended by the statutes of the state of Wisconsin. 
Under the amended complaint a cause of action was stated 
under the common law as amended by the statutes of the 
United States. It seems to me that there is a change from 
law to law as much in the one case as there is in the other, 
and that the doctrine of the Wyler Case is fully approved in 
Missouri, K. & T. R. Co. v. Wulf, 226 U. S. 570, 33 Sup. Ct 
135. If I have a correct concept of what has been decided in 
these two cases, I think they are decisive of the case at bar. 

Cases not decided by the federal supreme court do not have 
the same binding force and effect on this court as do the de- 
cisions of that court, but it is entirely germane to the ques- 
tion under discussion to say that the great weight of authority 
supports the contention here made by the respondent 
Among the cases holding that under substantially similar 
facts the allowance of such an amendment as was here made 
changes the cause of action stated in the original complaint, 
and that the defense of the statute of limitations is available 
as of the time the amendment is made, are the following: 
Allen V. T. V. R. Co. 229 Pa. St. 97, 78 AtL 34, 30 L. R. A. 
N. s. 1096; Bradley v. Chicago-Virden C. Co. 231 111. 622, 
83 N. E. 424 ; Henderson v. Moeaqua C. M. £ M. Co. 145 
111. App. 637 ; McHugh v. St. Louis T. Co. 190 Mo. 85, 88 
S. W. 853 ; Wasson v. Roland, 136 Mo. App. 622, 118 S. W. 
663 ; Hall v. L. & N. R. Co. 157 Fed. 464, affirmed {Louis- 
ville & N. R. Co. V. Hall) 98 C. C. A. 664; WingeH v. Car- 
penter, 101 Mich. 395, 59 K W. 662; Hughes v. N. Y., 0. 
& W. R. Co. 158 App. Div. 443, 143 K Y. Supp. 603 ; Mo- 
liter V. W abash R. Co. 180 Mo. App. 84, 168 S. W. 250; 
Brinkmeier v. Mo. Pac. R. Co. 81 Kan. 101, 105 Pac. 221 \ 
Creteau v. C. & N. W. R. Co. 113 Minn. 418, 129 N. W. 
855. 

The cases relied on by appellant, with two or three not 
very important exceptions, are cases where there was a 
change of beneficiary by amendment Such a change is held 
Vol. 162 — 28 



434 SUPREME COURT OF WISCOXSIN. [Feb. 

Nuthals Y. Green Bay, 162 Wis. 434. 

by nearly all courts not to change the cause of action. In 
fact I see little difference between the situation presently be- 
fore the court and that which confronted this court in Stev- 
ens V. Brooks, 23 Wis. 196; Meinshausen v. A. Gettelman B» 
Co. 133 Wis. 95, 113 N. W. 408; and Haverlund v. C, SL 
P., M. & 0. R. Co. 143 Wis. 415, 128 N. W. 273. 



ViNJE, J. I concur in the foregoing dissenting opinion 
of Mr. Justice Barxes. 



Nuthals, Administrator, Appellant, vs. City of Green 

Bay, Respondent. 

February 1 — February 22, 1916. 

Highways: Establishment by user: Wharf connecting street and river. 

1. The provision in sec. 1294, Stats., that all unrecorded roads used 

and worked for ten years shall become legal highways, does not 
abrogate the common-law rule of this state that a highway may 
be created by user alone for twenty years. 

2. A highway or street need not take any specific form of structure. 

If it serves the purpose of a street or highway it is immaterial 
what its form may be or that it may also serve some other pur- 
pose. 

3. Where, within the lines of a street extended to the established 

dock line on a river which was also a public highway, a wharf 
and the filled approach thereto served to connect the travel on 
the city streets with the travel on the river, and there was evi- 
dence that public travel over such whart had been more or less 
continuous for over twenty-five years and that it was used for 
all purposes for which the public had any use for it, a Jury would 
be warranted in finding that such wharf was a public street, 
even though it had never been opened as a street and had been 
used to some extent by adjoining owners for storage purposes 
and it was not shown that it was built by the city or that the city 
had ever expended any money on its repair or maintenance. 

Appeal from a judgment of the circuit court for Browit 
county: Henry Graass, Circuit Judge. Reversed. 



22] JANUARY TERM, 1916. 435 

Nuthals V. Green Bay, 162 Wis. 434. 

Action to recover damages for the death of one Constant 
ITuthals, who on September 8, 1912, drowned by reason of 
frJling through an alleged defective trestle work or wharf at 
a place claimed to be in a public street of the defendant city. 

The Fox river at the place in question in the city of Oreen 
Bay runs nearly north and south. Washington street par- 
allels the river on the east. Cedar street intersects Wash- 
ington street at right angles. The original plat of the city 
shows Cedar street extending to the Fox river, but the shore 
line is indicated some 200 feet east of where it is at present. 
From the original shore line to about nine feet west of the 
west line of Washington street, Cedar street has been raised 
by a dirt fiir throughout its full width. At the end of this 
fill a wharf or trestle, built on piling, extends to the estab- 
lished dock line a distance of eighty-seven feet on the north 
line of the street and of 116 feet on the south line. About 
eighteen feet from the end of this wharf and about eight 
feet from its north line the deceased fell through it. North 
of this wharf and connected to it is the wharf property of the 
F. Hurlbut Company. 

At the close of the testimony the court directed a verdict 
in favor of the defendant, and from a judgment entered ac- 
•cordingly the plaintiff appealed. 

For the appellant there were briefs by Minahan £ Minor 
Jian, and oral argument by F. /. Minahan. They argued, 
among other things, that a wharf such as the one in question 
IS, as a matter of law, a part of the highway. People v. Lam- 
bier, 5 Denio, 9, 47 Am. Dec. 273 ; In re Brooklyn, 73 X. Y. 
179 ; Knickerhocher Ice Co. v. Forty-second St. & Grand St. 
F. R. Co. 176 K Y. 408, 68 K E. 864. 

William CooJc, attorney, and Robert A. Kaftan, of counsel, 
for the respondent, contended, inter alia, that a public wharf, 
even when at the end of a street, is not a public highway. 
State V. Cowan, 29 X. C. 239 ; State ex rel. Wauconda Inv. 
4Jo. V. Superior Court, 68 Wash. 660, 124 Pac. 127; Palen 



436 SUPREME COURT OF WISCONSIN. [F; 



Nuthalfl ▼. Green Bay, 162 Wis. 434. 



V. Ocean City, 72 If. J. Law, 15, 62 AtL 947 ; Clark v. Los 
Angeles, 160 CaL 317, 116 Pac. 966; Horn v. People, 26 
Mich. 221; Kemp v. Stradley, 134 Mick 676, 97 N. W. 41; 
III & St. L. B. £ C. Co. V. St. Louis, 2 DilL 70, 12 Fe<L 
Cas. 1199. 

ViNJE, J. The circuit court directed a verdict for de- 
fendant because there was not sn£Scient evidence to go to the 
jury on the question of whether or not the locus in quo was a 
public street. In doing so the court erred. It is true there 
was no evidence that the city built the wharf or approach 
thereto or as to who built it Xeither was there anv evidence 
that the city had ever expended any money on its repair or 
maintenance. On the contrary the only one shown to have 
repaired the wharf was the Hurlbut Company. But it is not 
necessary that the city should have opened the street or built 
or repaired the wharf in order to constitute the same a public 
street. A place may become a street or highway by twenty 
years' user only. The provision of sec. 1294, Stats., that all 
unrecorded roads used and worked for ten years shall become 
legal highways, did not abrogate the common-law rule of this 
state that a highway may be created by user alone for twenty 
years. Chippewa Falls v. Hopkins, 109 Wis. 611, 85 N. W. 
553. Neither does a highway or street need to take any specific 
form of structure, such as earth, earth embankment, bridge, or 
trestle. If its form and structure is such that it serves the 
purpose of a street or highway and is used as such, it is im- 
material what its form may be or that it may also serve an- 
other purpose. Here the fill and wharf served to connect the 
travel on the city streets with travel on the Fox river. Both 
streets and river were public highways — the former by the 
acts of the city or its people, the latter by the provisions of 
the Ordinance of 1787 and the constitution of the state 
(sec. 1, art. IX). This travel was within the lines of Cedar 
street extended to the established dock line and waa shown 



22] JANUAKY TERM, 1916. 437 



Nuthals y. Green Bay, 162 Wis. 434. 



to have been more or less continuous for over twenty-five 
years. The evidence shows that ice wagons used to drive up 
and deliver ice to boats; the Standard Oil Company deliv- 
ered oil to boats over it ; owners of boats went over it to get 
oil from the company ; different kinds of boats have tied up 
there and used the wharf and fill to reach the city streets; 
transportation companies advertised excursions from the 
wharf and used to take on and leave their excursionists there; 
the general public used it, particularly on Sundays and holi- 
days, for picnic parties; and there is testimony that it was 
used for all purposes for which the public had any use for it. 
Fred Hurlbut, of the F. Hurlbut Company, testified that 
they had never regarded the wharf as the property of their 
company though they had used it for years for the storage of 
salt, brick, sewer pipe, etc., but had always left a passageway 
open for teams and foot or other travel. They had repaired 
it from time to time to facilitate their use of it for storage 
purposes. From such evidence, if believed, the jury would 
be warranted in finding that the place where the deceased fell 
through was in a public street. 

The trial court seems to have placed great reliance on the 
case of Curtiss v. Bovina, 138 Wis. 660, 120 N. W. 401, as 
governing this casa It does not. There it was shown that 
the town board expressly refused to lay out the highway 
across the river and that the bridge was built by private par- 
ties. It was held that the fact that the town had permitted 
such private parties to use some old planks discarded from a 
culvert in the road to repair the bridge did not make it a part 
of the highway. No twenty years' user was involved, as it 
was shown that the highway was laid out and the bridge built 
about ten years previous to the accident. The case of John- 
son V. Milwaukee, 46 Wis. 569, 1 N. W. 187, relied upon by 
plaintiff, is more in point. 

By the Court, — Judgment reversed, and cause remanded 
for further proceedings according to law. 



438 SUPREME COURT OF- WISCOXSIX. [Feb. 

Tarczek ▼. Chicago A N. W. R, Co. 162 Wis. 438. 



Tabczek, by guardian ad litem. Respondent, vs. Chicago & 
XoRTHWESTEBN Ratlway Company, Appellant 

February 1— February 22, 1916, 

Appeal: Verdict, when disturbed: Carriers: Railroads: When person 
becomes passenger: Injury at station: Defect in platform: Ques- 
tions for jury: Intoxication of plaintiff: Contributory negligence: 
Brief stricken from files. 

1. Where a verdict is challenged in the trial court and the Judge of 

that court deliberately approves the findings before judgment, 
his decision on the question is not to be disturbed unless clearly 
wrong. 

2. One who goes to a railway station within a reasonable time before 

the scheduled arrival of a train, with the bona fide intention of 
taking the train, becomes a passenger. 

3. Sub. 1, sec. 1797 — 9, Stats. 1913, — requiring railway companies to 

keep open their passenger stations for not less than twenty min- 
utes before the scheduled time of arrival of a passenger train 
and until it has departed, — ^is entitled to considerable weight 
but is not controlling in determining what constitutes a reason- 
able time within the meaning of the foregoing rules. 

4. Whether in this case the plaiiftiff, who had come to the defend- 

ant's railway station intending, as he claimed, to take a train 
due to arrive at 5:50 p. m., and who, while on the station plat- 
form at a time not exactly fixed but which the station agent said 
was about 5:20 p. m., in some way fell under the wheels of a 
passing freight train, was a passenger at the time of the acci- 
dent, is held upon the evidence to have been a question for the 
jury. 

5. It is the duty of a railway company to furnish at a station a rea- 

sonably safe platform in view of the dangers to he apprehended; 
and the dangers to be apprehended as the result of a stumble on a 
railway platform at a distance of four feet from a moving train 
are so much greater than those from a stumble on an ordinary 
sidewalk that the same measure of diligence cannot apply in 
both cases. 

6. Upon evidence tending to show that plaintiffs fall from a station 

platform under a moving train was caused by his stubbing his toe 
against a plank about four feet from the track and projecting 
about one and three-quarters inches above the crushed stone 
which formed a part of the platform next to the planking, the 



22] JANUARY TERM, 191G. 439 

Tarczek v. Chicago & N. W. R. Co. 162 Wis. 438. 

question whether the platform was reasonably safe was one for 
the Jury. 

7. Upon the evidence, stated in the opinion, it is held that plaintiff 

was not conclusively shown to have been intoxicated or to have 
been guilty of contributory negligence. 

8. A brief in which defendant's claim agent, a member of the bar of 

this court who procured typewritten statements from several of 
the witnesses in the case soon after the accident, is charged with 
framing up a false defense, manufacturing testimony, and sub- 
orning perjury in this and other cases, — there being no founda- 
tion for the charge except the fact that the making of certain 
statements said to have been made to him is denied, — is stricken 
from the files. 

Appeal from a judgment of the circuit court for Brown 
county 2 Henry Graass, Circuit Judge. Affirmed, 

Personal injuries. The plaintiff, a Russian laborer, nine- 
teen years of age at the time of the accident, was on the sta- 
tion platform at the village of Suring, Oconto county, at 
about 5 :20 p. m. January 1, 1914, as a south-bound freight 
train passed the station, and in some way fell under the 
wheels of the train, losing his right hand and the little linger 
of his left hand. He claimed that he was at the station for 
the purpose of taking a south-bound passenger train which 
was due at 5 :50 p. m. and that he stubbed his toe on the edge 
of a plank in the station platform, which was raised above the 
rest of the platform about one and three-quarters inches, and 
was thus thrown under the train. The jury found by special 
verdict (1) that the plaintiff fell under the train on the day 
stated; (2) that the fall was caused by his stumbling against 
one of the planks of the station platform; (3) that the rela- 
tion of passenger and carrier then existed between plaintiff 
and defendant; (4) that the platform was defective and not 
reasonably safe for passengers; (5) that such defective con- 
dition constituted negligence; (6) that such negligence was 
the proximate cause of plaintiff's injury; (7) that the plat- 
form was also defective by reason of insufficient lighting; 
(8) that such defective condition constituted negligence; 



440 SUPREME COURT OF WISCONSIN. [Feb. 

Tarczek y. Chicago & N. W. R. Co. 162 Wis. 438. 

(9) that such negligence was the proximate cause of plaint- 
iff a injury; (10) that plaintiff was not intoxicated at the 
time of the injury; (11) that want of ordinary care on his 
part did not contribute to his injury; and that plaintiffs 
damages were $7,260. 

The defendant moved for judgment notwithstanding the 
verdict, and also to change the answers and for judgment on 
the verdict as corrected, but the motions were overruled and 
judgment rendered for the plaintiff on the verdict, from 
which judgment defendant appeals. 

Edward M. Smart, for the appellant. 

For the respondent the cause was argued orally by V. I. 
Minahan and R. A. Kaftan. 

WiNSLOw, C. J. No detail errors are alleged, but the 
broad contention is made that a verdict for the defendant 
should have been directed because the evidence showed be- 
yond dispute that (1) the plaintiff was not a passenger, 
{2) that the platform was sufficient and properly lighted, 
•(3) that the plaintiff was intoxicated, and (4) that he was 
guilty of contributory negligence. 

If we were triers of the facts we think we should find 
much difficulty in reaching the conclusions reached by the 
jury, but we are not: our function is simply to ascertain 
whether there is any credible evidence to support the findings 
of the jury. In this connection it is to be remembered that 
where, as in this case, the verdict is challenged in the trial 
court and the judge of that court deliberately approves the 
findings before judgment, his decision on the question is not 
to be disturbed unless clearly wrong. Slam v. Lake Su- 
perior T. (6 T. R. Co. 152 Wis. 426, 140 N. W. 30 ; LingeU 
bach V. Theresa Village Mut. F. Ins. Co. 154 Wis. 595, 143 
]Sr. W. 688. 

We shall take up the appellant's contentions in the order 
indicated. 



22] JANUAKY TEEM, 1916. 441 



Tarczek y. Chicago & N. W. R. Co. 162 Wis. 438. 

1. It is doubtlese true that one' who goes to a railway sta- 
tion within a reasonable time before the scheduled arrival of 
a train, with ^he bona fide intention of taking the train, be- 
comes a passenger. 4 Elliott, Bailroads (2d ed.) § 1579; 
III. Cent. B. Co. v. Laloge, 113 Ky. 896, 69 S. W. 795, 62 
L. R A. 405 ; Widener v. Ala. O. S. B. Co. (Ala.) 69 South. 
558. 

Generally the question ia one for the jury, but the circum- 
stances may be such as to make it a question for the court. 
Was it a question for the court in this case ? We think not 
It appears by the evidence that the passenger train which the 
plaintiff desired to take was due at 5 :50 p. m. The plaint- 
iff came to the station and sat down in the waiting room at 
about 3 p. m. A freight train was due at 3 :30 p. m., but 
was late on the day of the accident. This was the train 
under which the plaintiff felL The exact time of its arrival 
is not fixed by the testimony of any witness. The station 
agent says that it was about 5 :20 p. m. Another witness says 
that he went to the station at about 5 :1S, but whether the wit- 
ness meant that he reached the station at that time or left his 
house, some blocks distant, does not appear. No other wit- 
ness attempts to fix the time, and it seems evident that no one 
looked at a clock. It appears, however, that another man 
who was intending to take the passenger train, one Yakel, 
who was then a section foreman in the defendant's employ, 
and who had been visiting relatives in the village, was get- 
ting ready to go to the station when he heard the freight train 
whistle and immediately went to the station, about three 
blocks distant, with two suitcases. The witness was having 
one of his suitcases checked by the station agent's assistant at 
the time the freight train passed the platform and the acci- 
dent happened. This circumstance has considerable per- 
suasiveness in view of the inability of any witness to fix the 
exact time. Yakel was a railroad man. Presumably he 
knew the scheduled time of the train which he expected to 



442 SUPREME COURT OF WISCONSIN. [Feb. 



Tarczek v. Chicago & N. W. R. Co. 162 Wis. 438. 



take, and he was about to go to the station when the distant 
whistle of the freight train was heard. When he reached 
the station the proper employee was ready to and did in fact 
check his baggage for the passenger train. All this seems to 
indicate that the usual preparations were being made for the 
arrival of the passenger train at the time of the accident. 

The appellant calls attention to sub. 1 of sec. 1797 — 9, 
Stats. 1913, requiring railway companies to keep open their 
passenger stations for not less than twenty minutes l^efore 
the scheduled time of arrival of a passenger train and until 
the train has departed, and claims that this fixes a legislative 
standard of reasonable time, which in the absence of special 
circumstances must be deemed controlling. This provision 
is certainly entitled to be considered as having considerable 
weight in determining the question, but we should be un- 
willing to say that it is in any sense controlling. In view of 
the uncertainty as to the exact time in the present case and 
the fact that at least one other prospective passenger consid- 
ered that it was time to go to the station and prepare for de- 
parture on the same train, we feel unable to say that the 
question was not for the jury. 

2. It appeared that the station at Suring is on the east 
side of the railway track, which runs north and south. The 
platform consisted in part of planking and in part of crushed- 
stone screenings. The planking consisted of five sixteen- 
foot planks laid side by side lengthwise next to the track and 
extending back from the track four feet and two inches. 
The balance of the platform was of crushed-stone screenings 
packed down like a macadam pavement, except that in front 
of the station doors connecting planks ran from the doorstep 
to the outer planking aforesaid and at right angles therewith. 
The defect claimed to exist in this platform was that the 
crushed stone had been worn away, or was originally at a 
lower level than the planking, so that the edge of the plank 
projected abruptly above the crushed stone about one inch 



22] JANUARY TERM, 1916. 443 

Tarczek v. Chicago & N. W. R. Co. 162 Wis. 438. 

and three-quarters. There was considerable testimony as to 
the height and abruptness of this rise, but there was cer- 
tainly testimony which would entitle the jury to find that the 
condition was practically that claimed to exist by the plaint- 
iff. 

It is said by the defendant that the duty of the defendant 
is only to provide a reasonably safe platform and that such 
an inequality in the platform cannot be held to make it un- 
safe. Many cases are cited from this and other courts hold- 
ing in effect that such depressions in city sidewalks and 
streets are not defects within the legal meaning of that term. 
We do