author: Currie, C. J.

text:
    Zartner, Respondent, v. Scopp and another, Appellants.

      September 8

    October 5, 1965.

      For the appellants there were briefs by Kivett & Kasdorj, attorneys, and Alan M. Clack of counsel, all of Milwaukee, and oral argument by Mr. Clack.

    For the respondent there was a brief by Hippenmeyer & Reilly of Waukesha, and oral argument by William F. Reilly.

   Currie, C. J.

The appellants-defendants contend that the causal negligence of plaintiff Zartner was as a matter of law at least equal to that of defendant Scopp, and, therefore, the judgment should be reversed and the complaint be dismissed. If the court decides this contention adversely to appellants, they then request a reversal and new trial on the following alleged grounds of prejudicial error:

(1) The jury’s finding that Scopp’s negligence was causal with respect to failure to have turned on his headlights has no support in the evidence.

(2) Likewise the jury’s finding that Scopp’s negligence was causal with respect to lookout also cannot be permitted to stand.

(3) Zartner’s negligence as to the manner in which he made a left turn was causal as a matter of law.

(4) The separate findings of causal negligence on the part of Scopp as to lookout, management and control, and speed are duplicitous, thereby rendering the jury’s comparison of negligence based thereon invalid.

(5) The trial court erroneously failed to give instructions requested by defendants.

(6) The trial court’s error in permitting the hearsay statement of a witness to be read to the jury by plaintiff Zartner’s counsel was not cured by the trial court instructing the jury to disregard it.

In considering appellants’ assignments of error which call for review of the evidence, it is only necessary that we consider that part of the testimony and evidence which sustains the verdict.

Apportionment of Negligence.

With this rule in mind we first will consider appellants’ contention that they are entitled to a reversal of the judgment and dismissal of the complaint because Zartner’s causal negligence was at least equal to that of Scopp.

Grandview is a public street extending in a northerly and southerly direction. In the block where the accident occurred it is 38 feet six inches wide, has no curbs, and has pavement in the center wide enough for one north and one south traffic lane. On each side between the pavement and the curbline there is gravel. The accident occurred approximately 350 to 400 feet north of the intersection of Grandview and Summit avenue. On the evening of the accident the pavement was dry.

Zartner testified as follows: He was operating his 1957 Ford two-door sedan in a southerly direction on Grandview. When about 200 feet north of the Eagles Club he put on his directional lights to indicate a left turn while traveling at a speed of 15 to 20 miles per hour. He was then traveling in the middle of the west paved traffic lane with the left side of his car two or three feet to the west of the center line. As he approached the Eagles Club driveway he brought his car to a complete stop. He looked to the south and “looked down the road and didn’t see nobody, and made my turn, and there was a crash.” At time of the collision only two or three feet of his car were east of the center line of the street. When he stopped his car preparatory to making the left turn he could see a distance of 300 feet to the south and could see cars parked on both sides of the street.

Scopp had approached Grandview from the east on Summit avenue in his 1960 Mercury automobile and made a wide right-hand turn onto Grandview. The car muffler had come off earlier in the day and Scopp had placed it in the car trunk. The attention of several disinterested witnesses stationed along Grandview between Summit and the Eagles Club was attracted by the loud noise made by Scopp’s car. Although the speed limit on Grandview was 25 miles per hour his speed was estimated as high as 55 miles per hour as he proceeded north on Grandview. As he turned the corner his car swung over on the west side of the street and proceeded north on the gravel before turning into the north traffic lane. After turning into its proper traffic lane the car fishtailed, i.e., its rear end swayed. The car was in its proper traffic lane by the time it passed the car of witnesses who were parked on the west side of Grandview about half way between the corner and the Eagles Club. Scopp did not see the activated directional lights of the Zartner car, but saw the headlights of this car a block or so away at the time he turned onto Grandview. When he saw the Zartner car start to make its left turn Scopp applied his brakes hard but did not attempt to turn to either side. The Scopp car laid down 61 feet of skid marks prior to the collision.

Appellants cite the following statement of this court in Guptill v. Roemer:

.“We might observe that the case at bar is one of three appeals decided by us on this assignment involving motor-vehicle-accident cases in which a driver attempted, as did plaintiff Guptill, to make a left turn in the path of an oncoming vehicle under circumstances where a collision was certain to ensue if the latter vehicle continued in its same lane of travel and at its same speed. It is difficult for us to understand how a conscientious jury under such circumstances could attribute the smaller percentage of negligence to the driver making the left turn whose act precipitated the situation resulting in the collision.”

However, in the Guptill Case, this court did not rule as a matter of law that the left-turning driver was at least as negligent as the other driver, but held the apportionment of 90 percent of the total negligence to the other driver was so against the great weight and clear preponderance of the evidence as to warrant ordering a new trial in the interest of justice. There the accident occurred at a rural intersection while the instant collision occurred on a city street having a speed zone of 25 miles per hour. Scopp’s greatly excessive speed testified to by several witnesses was flagrant negligence. While Zartner’s total failure of lookout undoubtedly greatly contributed to the cause of the collision, we are of the opinion that the apportionment of negligence was peculiarly for the jury, and should not be set aside by us. See Grana v. Summer ford where we rejected the contention that a left-turning driver’s negligence in turning into a private driveway in the path of an approaching car from the opposite direction was at least 50 percent of the total negligence.

Scopp’s Lack of Headlights.

Although the accident occurred long after one-half hour after sunset, Scopp was operating his car with only the parking lights turned on, which was a violation of sec. 347.06, Stats. Because the evidence establishes that the roadway of Grandview from the Eagles Club south to Summit avenue was well lighted, and Zartner testified he could see all objects thereon for a distance of 300 feet, appellants contend there is no support for the jury’s finding that Scopp’s negligence with respect to headlights was causal.

The fact that there was sufficient lighting available on the street so that an attentive driver could see unlighted objects for a distance of 300 feet does not lead to the conclusion that the direct beam of light projected by automobile headlights would not have a definite warning effect. There is little question that headlights, in addition to enabling the driver to see ahead, have a warning function which permits others to see the approaching car.

We determine that a jury issue was presented as to whether Zartner would have seen the approaching Scopp car, if its headlights had been turned on, in time for him to have averted the accident.

Scopp’s Lookout.

The jury found Scopp causally negligent as to lookout. Appellants concede that he was negligent in this respect, but contend that this negligence was not causal. The evidence at the trial established that Scopp did not see Zartner’s activated left-turn direction lights.

The question of whether Scopp’s failure to see Zartner’s left-turn direction signal was causal is answered by this court’s statement in Behringer v. State Farm Mut. Automobile Ins. Co.:

“The jury could well have found that, if Behringer had seen such flashing directional lights, he should have slowed down his speed so as to have his car under such control that he could have avoided a collision if Leffel did turn left in Behringer’s path. However, the jury could also reasonably have concluded that Behringer had the right to continue at his existing rate of speed on the assumption that Leffel would not violate the law by turning left directly into Behringer’s traffic lane. The purpose of activating directional signal lights, so as to indicate a left turn, usually is to warn traffic to the rear proceeding in the same traffic lane that the driver will be slowing down or stopping so as to permit approaching traffic in the opposite traffic lane to clear the intersection before the left turn will be begun. Because the jury could reasonably have arrived at either of these two conclusions, whether Behringer’s negligent lookout was causal presented a jury issue. It cannot be resolved as a matter of law contrary to the jury’s express finding.”

It seems clear, therefore, that it was within the jury’s province to find that if Scopp had seen Zartner’s directional lights he could have reduced his speed so as to have his car under such control that he might have avoided the collision.

Manner of Zartner’s Left Turn.

Although Zartner was attempting to make a left turn into a private driveway, sec. 346.32, Stats., required him to make it in the same manner as he would at a regular highway intersection as provided in sec. 346.31 (3), there being no evidence that the turn could not be so made. Sec. 346.31 (3)-(b) provides:

“The intersection shall be entered in the lane of approach and, whenever practicable, the left turn shall be made in that portion of the intersection immediately to the left of the center of the intersection.”

Zartner admitted that in making his left turn his car was slightly to the south, or right, of the center of the intersection of the Eagles Club private driveway with Grandview. Because of this admitted statutory violation the trial court answered “Yes” to that question of the verdict which inquired whether Zartner was negligent in the manner of making a left turn.

Appellants contend that this negligence of Zartner’s should be held to be causal as a matter of law and that the jury’s answer of “No” to the corresponding causation question should be set aside. We find no merit in this contention because the jury could well have concluded that the collision would have occurred even if Zartner had turned left just to the north of the center of the intersection. Appellants urge that Zartner’s obvious disregard of approaching traffic and failure to exercise reasonable judgment are also proper aspects of negligence in respect to the manner of his left turn. However, the trial court’s instructions to the jury make it clear that this aspect of making a left turn was not presented to the jury when they passed on this causation question.

Sec. 346.34 (1), Stats., provides:

“No person shall turn a vehicle at an intersection unless the vehicle is in proper position upon the roadway as required in s. 346.31, or turn a vehicle to enter a private road or driveway unless the vehicle is in proper position on the roadway as required in s. 346.32, or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety.”

Whether Zartner in making a left turn violated the above provision requiring him not to do so unless the same could “be made with reasonable safety” involved an exercise of judgment on his part which could be made only after he had first sighted the approaching Scopp car. Because Zartner never saw the Scopp car prior to the collision, Zartner was never presented with any opportunity to form a judgment as to whether he could safely pass in front of the approaching Scopp car. Thus Zartner’s negligence in turning directly into the path of the Scopp car was that of failure of lookout and not in manner of making a left turn.

Appellants rely on the case of DeBaker v. Austin in support of their position that Zartner was causally negligent as to the manner in which he made his left turn. In the DeBaker Case a left-turning driver was found to be causally negligent as a matter of law in the manner in which he negotiated his turn. This negligent left turn resulted in a collision with an approaching vehicle. The turning driver in that case initially saw the approaching car before attempting his turn, but failed to look again prior to making the turn. The very fact that the driver in DeBaker saw the other vehicle and then proceeded to make the turn clearly distinguishes it from the facts before us. In DeBaker there were clearly issues as to lookout and failure to exercise proper judgment. In the instant case Zartner was never aware of any approaching traffic, so could hardly be said to have exercised rash judgment in making his turn.

The following statement appearing in Reynolds v. Madison Bus Co. is apposite:

“So also where the driver of the car is completely negligent as to lookout and because of this negligence wholly fails to see another car or to take any steps to avoid a collision the sole negligence is in respect of lookout.”

At first blush this holding, that the jury is not required to pass on the issue of whether Zartner violated the above-quoted provision of sec. 346.34 (1), Stats., with respect to manner of making a left turn because of his total failure of lookout, might appear inconsistent with our holding in Lewis v. Leiterman where we held that violation of right-of-way must be submitted to the jury as well as lookout, even though in that case for all practical purposes there was a total failure of lookout by the driver who entered the arterial in the path of an oncoming car. The distinction between right-of-way and the instant turning case is that we construe the right-of-way statute (sec. 346.18) as imposing the duty of yielding right-of-way regardless of lookout.

Form of Verdict.

Appellants renew their objection made at the trial that the verdict was duplicitous with respect to the elements of alleged negligence on the part of Scopp, viz., speed, lookout, and management and control.

Scopp was clearly traveling at an excessive rate of speed as testified to by a number of witnesses. In not observing that Zartner’s car was stopped with its directional lights on, the issue of negligent lookout was clearly present. Scopp’s reckless turn when entering Grandview which carried him onto the gravel parking lane to the west of the pavement, and his continuing in that lane for some distance, clearly raised an issue of management and control. It may well have been during Scopp’s traveling up the wrong lane that Zartner looked down the proper lane to see if a vehicle was approaching. We conclude that the verdict as framed was not duplicitous.

Instructions to Jury.

Appellants raise two main points in respect to the instructions they requested which were not given to the jury. They contend that the trial court’s failure to instruct (1) as to the manner in which a left turn should be made and (2) as to the elements of negligent lookout in a left turn, were prejudicial.

The trial court admitted failure to instruct as to the proper position for a left-hand turn. However, the court felt that the error was not prejudicial, presumably because it had determined Zartner negligent as a matter of law in this respect. The jury, however, failed to find that this negligence was causal, and appellants contend that the absence of an instruction left the jury in the dark as to the elements of the negligence. In view of the facts before us, aside from the question of lookout, it is apparent that the only negligence that can be seriously complained of in respect to the manner of Zartner’s left-hand turn was his turning a few feet south of the center of the intersection of the driveway and Grand-view. It is most unlikely that an instruction as to the proper method of making a left-hand turn would have changed the jury’s estimate of the causal effect of this improper turn. Accordingly, the error was not prejudicial to defendants, and, therefore, was not grounds for a new trial.

In regard to Zartner’s negligent lookout, the court instructed the jury as to the general elements of a proper lookout, Wis. J I — Civil, Part I, 1055, but did not give the jury the instruction requested by defendants, Wis. J I — Civil, Part I, 1100, which specifically concerns turning into private driveways or intersections. Instruction No. 1100 includes an additional requirement, not included in No. 1055, that a turning motorist must exercise reasonable judgment in calculating the time required to safely enter the intersecting private driveway. Appellants contend that omitting this additional requirement is fatally prejudicial. They cite the case of Vanderhei v. Carlson in support of their position. That case involved an accident between an automobile and a pedestrian. The court instructed the jury with respect to the duty of the driver to keep a proper lookout, but when instructions were given in relation to the pedestrian’s lookout, the court merely stated, “I have already instructed you in regard to that.” By a special verdict the jury found the pedestrian not negligent as to lookout. The driver of the car involved complained that omitting the instruction as to a pedestrian’s duty of lookout was fatally prejudicial. This court agreed and ordered a new trial. The seriousness of the error in the Vanderhei Case is apparent because the jury wholly failed to find the pedestrian negligent and a different result might well have followed if the jury had been properly instructed.

As previously pointed out herein, in considering the failure of the jury to find Zartner’s negligence causal in the manner in which he made his left turn, Zartner’s negligent lookout in failing to see Scopp’s car prior to impact eliminates from the case the element of Zartner exercising judgment as to whether he could safely make the turn in front of the approaching Scopp vehicle. Therefore, no prejudice resulted from failing to give this last-mentioned requested instruction.

Evidentiary Ruling.

In the process of the redirect examination of a witness, Douglas McCaffery, Scopp’s counsel produced a statement signed by the witness for the purpose of refreshing the memory of the witness concerning the lights on Scopp’s car. Over objection by Scopp’s counsel, counsel for Zartner then was allowed to read the entire statement to the witness in the presence of the jury. The document included a statement by the witness that Scopp was traveling “far in excess of 25 miles per hour.” Counsel for defendants had not questioned the witness about Scopp’s speed so that the reading of this part of the statement could not be justified on the basis of impeaching the witness’ testimony. After the reading of the statement by counsel for Zartner, the trial court granted the motion of Scopp’s counsel to strike the same and instructed the jury to disregard it. Appellants urge that the prejudicial nature of the error was not cured by the granting of the motion to strike.

Four other witnesses testified that defendant was traveling at an excessive speed. The evidence was so overwhelming in this regard that appellants do not even contest the finding that Scopp was negligent as to speed. As this court said in Holtz v. Fogarty:

“Errors committed in the course of a trial will not operate to disturb a judgment on appeal unless it appears pretty clearly that had they not occurred, the result might probably have been more favorable to the party complaining. . . .”

In light of the overwhelming evidence in regard to Scopp’s speed we deem it clear that, even if the alleged error had not occurred, the result would not have been more favorable to defendants. Therefore, we find no prejudice.

By the Court. — Judgment affirmed.

        Jensen v. Heritage Mut. Ins. Co. (1964), 23 Wis. (2d) 344, 348, 127 N. W. (2d) 228; Sturm v. Simpson’s Garment Co. (1956), 271 Wis. 587, 590, 74 N. W. (2d) 137.

       (1955), 269 Wis. 12, 19, 68 N. W. (2d) 579, 69 N. W. (2d) 571.

       (1961), 12 Wis. (2d) 517, 107 N. W. (2d) 463.

       See Anno. 67 A. L. R. (2d) 118, 131.

       (1959), 6 Wis. (2d) 595, 599, 95 N. W. (2d) 249.

        Grana v. Summerford (1961), 12 Wis. (2d) 517, 523, 107 N. W. (2d) 463, would indicate that the element of calculation and forming a judgment as to whether the turn can be made in safety is properly an element of lookout and not of manner of making a left turn. See Comment, Wis. T I — Civil, Part I, 1354.

       (1939), 233 Wis. 39, 287 N. W. 720.

       (1947), 250 Wis. 294, 306, 26 N. W. 653.

       (1958), 4 Wis. (2d) 592, 599, 91 N. W. (2d) 89.

       Sec. 346.18 (7), Stats., enacted after occurrence of the instant accident, provides: “The operator of any vehicle intending to turn to the left into an alley or private driveway across the path of any vehicle approaching from the opposite direction shall yield the right of way to such vehicle.” Thus this statute does impose a duty on the left-turning driver independent of his lookout.

       Sec. 274.37, Stats.

       (1957), 275 Wis. 300, 81 N. W. (2d) 742.

       (1955), 270 Wis. 647, 650, 72 N. W. (2d) 411.


source: Caselaw Access Project

license: Public Domain

text:
    Sorge Ice Cream & Dairy Company, Appellant, v. Wahlgren, Respondent.

      September 7

    October 5, 1965.

      For the appellant there was a brief by Irving D. Gaines, attorney, and Paul E. Sicula of counsel, both of Milwaukee, and oral argument by Mr. Gaines.

    For the respondent there was a brief and oral argument by Albert R. Frans of Milwaukee.
   Currie, C. J.

The issue presented by this appeal is whether plaintiff owed a legal duty to defendant to have applied on the $15,500 note a sufficient part of the $8,372.67 credit given the principal debtor Ehrhardt for the equipment transferred to plaintiff by the May 21, 1963, bill of sale so as to have extinguished defendant’s liability on the guaranty, rather than have applied most of such credit to other indebtedness of Ehrhardt.

It is a general rule that in the absence of an agreement or superior equity requiring application in the interest of a guarantor, the fact alone that a guarantor is liable for one of several debts does not affect the rights of the debtor or creditor to designate the debt to which a voluntary payment by the debtor from his own funds shall be applied. Plaintiff relies on this general rule in seeking reversal of the judgment below inasmuch as it had been agreed upon between Ehrhardt and plaintiff that the credits arising from the transfers under the bill of sale would be applied in such manner as not to extinguish defendant’s liability on the guaranty.

This general rule, however, is subject to certain well-recognized exceptions. One of these is the “identical property” exception where, as in the instant case, the debt guaranteed is for the acquisition of certain property and later this identical property, or the proceeds from the sale of the same, is delivered by the principal debtor to the creditor. Although this exception seems not to have been heretofore applied by this court, many other courts have recognized it and have held that payments made with the identical money or property for the payment of which a guarantor is bound cannot be applied to a debt other than that for which the guarantor is bound.

In Sipes v. Ardmore Book & News Co. certain school books were consigned to defendant news company to be sold by the company and the proceeds remitted to plaintiff. A bond was executed with certain other individuals as sureties, who were also defendants in the action, to recover proceeds arising from the sale of said school books. At the time of the agreement and execution of the bond defendant news company owed plaintiff a sum of money. Some time later defendant news company became bankrupt. Upon the return of school books and proceeds consigned to defendant under the agreement in question, plaintiff applied this property to the antecedent debt and contended that the sureties were still liable on their bond. The sureties contended that they could not be held liable for proceeds arising from the sale of books consigned to the news company prior to the execution of the later agreement and bond, with no such express provision in the consignment contract or bond. Plaintiff attempted to invoke the general application of payments rule, but the court concluded that it had no relevance to the case, saying (p. 181):

“ ‘The general rule that a surety cannot control the application of a payment is applicable solely in those cases where the principal makes the payment from funds which are his own and are free from any equity in favor of the surety to have the money applied in payment of the debt for which the surety is liable, but where the specific money paid, or property delivered to the creditor, is the' identical money or property for the payment or delivery of which the debtor and his sureties have obligated themselves by the contract and undertaking, the surety is not bound by an application thereof to some other debt for which the surety is not liable.’
“Under the above rule, plaintiff had no right, as against the sureties, to apply the money arising from the sale of books consigned under the contract to another debt of the principal.”

The “identical property” exception is especially applicable when the source of the property or funds is known to the creditor. It is clear that in the case before us plaintiff knew of the source of the property. In United States, for Use and Benefit of Crane Co. v. Johnson, Smothers & Rollins a supplier sued a subcontractor and his surety for a balance claimed to be due for materials furnished in connection with the construction of a post office. The surety’s bond included payment for all materials furnished under the subcontract for the post-office building. It appeared that the general contractor had made payments to the subcontractor for this job, and the subcontractor contended he had in turn paid the supplier in full for all the materials furnished. However, even though the supplier knew the source of this payment, he applied part of it to a previous debt which the subcontractor owed for materials furnished on another construction job. The court concluded that the supplier was required to apply this payment to the account for materials furnished in connection with the post-office job. In reaching this result the court said:

“We are in accord with these decisions in so far as they hold that when a surety is bound on one of - several debts of the principal debtor to a creditor, and a payment is made by the debtor to the creditor with the identical money for the payment of which the surety is bound, or with the proceeds or fruits of the very contract, business, or transaction covered by the obligation of the surety, the application of the payment to some other debt, with or without the direction or consent of the debtor, does not bind the surety; at least if the source of the funds is known to the creditor or person receiving the payment. The surety in such case is entitled to have the payment applied to the debt for which he is bound.” (Emphasis supplied.)

Plaintiff stresses the fact that the debtor in the instant case expressly included in the bill of sale that the amount paid to plaintiff was not to extinguish defendant’s guarantee. This factor alone, however, is not sufficient to defeat the equity of defendant in a situation such as we have before us. Despite the debtor’s contrary direction, if the creditor is aware of the source of the payment, he should apply it to the note guaranteed by the surety.

Plaintiff cites the cases of Sipes v. John and Bank of Georgia v. Card as repudiating the identical-property exception to the general rule of application of payments. Our examination of these two authorities discloses that the courts there did not expressly repudiate this exception to the general rule, but rested their decisions upon the particular facts presented. In the first-cited case the Oklahoma court held that there was no showing that the funds giving rise to the credit were the identical moneys which the sureties had obligated themselves by their undertaking to pay. In the Georgia Case the note signed by the guarantor expressly provided that a lien was granted to the payee bank as security for payment of any other sums which the maker of the note might owe the bank in addition to the note.

We deem the identical-property exception to the general rule of application of payments rests on sound equitable principles and the county court properly applied it to the facts of this case.

By the Court. — Judgment affirmed.

        Will of Stone (1933), 211 Wis. 518, 248 N. W. 446; Mid-Continent Supply Co. v. Atkins & Potter Drilling Corp. (10th Cir. 1956), 229 Fed. (2d) 68; United States for Use of Carroll v. Beck
        (6th Cir. 1945), 151 Fed. (2d) 964; Sipes v. John (1936), 177 Okla. 299, 58 Pac. (2d) 854; Anno. 57 A. L. R. (2d) 855, 858.

        United States, for Use and Benefit of Crane Co. v. Johnson, Smathers & Rollins (4th Cir. 1933), 67 Fed. (2d) 121; Sipes v. Ardmore Book & News Co. (1929), 138 Okla. 180, 280 Pac. 805; Mid-Continent Supply Co. v. Atkins & Potter Drilling Corp. (10th Cir. 1956), 229 Fed. (2d) 68; Bross v. McNicholas (1913), 66 Or. 42, 133 Pac. 782; Anno. 57 A. L. R. (2d) 855, 872; 40 Am. Jur., Payment, p. 815, sec. 148.

       (1929), 138 Okla. 180, 280 Pac. 805.

         Id. at page 181.

        St. Paul Fire and Marine Ins. Co. v. United States for the Use of Dakota Electric Supply Co. (8th Cir. 1962), 309 Fed. (2d) 22; United States, for Use and Benefit of Crane Co. v. Johnson, Smathers & Rollins (4th Cir. 1933), 67 Fed. (2d) 121; United States for the Use of Carroll v. Beck (6th Cir. 1945), 151 Fed. (2d) 964; 40 Am. Jur., Payment, p. 815, sec, 148,

       (4th Cir. 1933), 67 Fed. (2d) 121.

       Id. at page 123.

        United States for the Use of Carroll v. Beck (6th Cir. 1945), 151 Fed. (2d) 964; St. Paul Fire and Marine Ins. Co. v. United States for the Use of Dakota Electric Supply Co. (8th Cir. 1962), 309 Fed. (2d) 22; United States, for Use and Benefit of Crane Co. v. Johnson, Smathers & Rollins (4th Cir. 1933), 67 Fed. (2d) 121.

       (1936), 177 Okla. 299, 58 Pac. (2d) 854.

       (1951), 84 Ga. App. 142, 65 S. E. (2d) 841.


author: Fairchild, J.

text:
    Parchem and another, Respondents, v. St. Cecilia’s Congregation, Appellant.

      September 7

    October 5, 1965.

      For the appellant there was a brief and oral argument by Francis R. Bannen of Wisconsin Dells.
    For the respondents there was a brief by Vaughn S. Conway and Kenneth H. Conway, Sr., both of Baraboo, and oral argument by Vaughn S. Conway.

   Fairchild, J.

A general order of the industrial commission, 3 Wis. Adm. Code, sec. Ind 62.05 (3), concededly applicable to defendant church, provides: “Stairways and steps which have more than 3 risers shall have handrails on both sides. Rails shall be not less than 2 feet 6 inches vertically above nose of treads, or 3 feet above a platform.”

Although there appears to be no express requirement that a handrail must extend the full length of a stairway, and to the uppermost step or platform, there was testimony by an inspector employed by the industrial commission that the handrail requirement is so construed, and we consider that a reasonable construction.

No provision applicable to this stairway required any handrails except along the sides. The building code, 3 Wis. Adm. Code, secs. Ind 50.001-59.75, does not apply to this stairway because the church was built, and the stairway put into its present form, before October 9, 1914.

Defendant concedes that the absence of handrails along the sides of the stairway is a violation, but argues that the absence of handrails at the sides did not cause Mrs. Parchem to fall, pointing out that when she fell, she was six or seven feet from the place the south handrail should have been, and farther from the place the north handrail should have been.

In making this argument defendant assumes that Mrs. Parchem would have been using the handrail which she did try to use even if proper handrails had been present at the sides of the steps. If, however, proper handrails had been present along the sides of the stairway, they would have extended throughout the length of the stairway. Mrs. Par-chem had not proceeded directly down the stair, but had sought out the existing handrail, probably because of her weight, in order to have its support and protection while descending. The jury could well have inferred that the shortness of the rail was a cause of her fall because she had to step down ór lean forward while in the process of reaching for the rail. We think, as did the circuit court, that the jury could also properly infer that if complete railings had been present along the sides of the stairway, Mrs. Parchem’s desire for support, as evidenced by her actions, was sufficient so that she would have gone to one side or the other in order to obtain the protection afforded by full-length handrails.

Defendant relies on Bean v. United States where a handrail was present, but did not extend to the bottom of the stairway. The violation was found not causal. In that case, however, plaintiff was apparently making no effort to use the handrail as he descended the stairway. When he fell, although opposite the place where the rail was missing, he was too far away to have reached it if it had been there.

We consider that the jury’s finding that defendant’s negligence was causal is supported by this record.

Plaintiffs, on motion to review, argue there is no support for the jury’s finding of causal negligence on the part of Mrs. Parchem.

Mrs. Parchem’s testimony suggests that she attempted to step down with her right foot when she had not yet grasped the handrail, and that her foot went down between the vertical support of the handrail and the riser just east of it. We think the jury could properly decide that ordinary care required a different approach, probably getting herself fully turned to face the west before she attempted to descend. We conclude the evidence presented a jury question whether Mrs. Parchem was causally negligent.

By the Court. — Judgment affirmed. Respondents may tax costs except for printing the two pages of their brief devoted to motion for review.

       See Ruplinger v. Theiler (1959), 6 Wis. (2d) 493, 95 N. W. (2d) 254.

       (D. C. Wis. 1963), 219 Fed. Supp. 8.


author: Hallows, J.

text:
    Olson and another, Appellants, v. Rothwell, State Superintendent of Public Instruction, Respondent. Sahy, Appellant, v. Same, Respondent.

      September 7

    October 5, 1965.

      For the appellants there was a brief by Godfrey, Godfrey, Neshek & Conway of Elkhorn, and oral argument by Thomas G. Godfrey.

    For the respondent the cause was argued by Harold H. Persons, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
   Hallows, J.

The appellants raise three questions on appeal: (1) Whether the Rock county school committee had the power to make an order on August 29, 1962, attaching all the territory of the Barr district excepting the Sahy property to the Orfordville school district; (2) whether such action was arbitrary and thereby an unconstitutional exercise of the legislative process; and (3) whether the modification by the circuit court to include the Sahy property in the respondent’s order was an unlawful usurpation of legislative authority.

The appellants contend that when Rock county school committee attached the territory of the Barr district excepting the Sahy property to the Orfordville district on August 29, 1962, it was without jurisdiction to do so because the Sahy property was involved in the appealed attachment order of June 8th. The appellants rely on sec. 40.025 (1) (d) 8, Stats., which provides the jurisdiction of a reorganization authority is lost, “Upon the perfection of an appeal pursuant to this chapter.” However, the joint Rock-Green county school committee’s order of June 8, 1960, only included the Sahy property of the Barr district and the Rock county school committee’s order of August 29, 1962, did not include but expressly excluded the Sahy property. The contention of the appellants can only have merit on the proposition that if a school-reorganization order affects part of the territory comprising a school district, such order pre-empts all the territory in the school district. There is no authority for such a proposition. All the authority is to the contrary. Sec. 40.025 (1) (c) provides only the second school reorganization proceeding is void if it pertains to all or any part of the territory included in the order of the first proceeding which is then pending or whose order has not then become effective.

The pre-empted jurisdiction of the first proceeding extends no farther than the particular and identical land or territory involved. In School Dist. v. Harding (1960), 10 Wis. (2d) 122, 102 N. W. (2d) 97, petitions for reorganization were held invalid and as not conferring jurisdiction because they were filed prior to the filing of the order of the final determination in the proceeding and involved some of or all of the territory in the order of the first proceeding. Likewise, in Palmer v. Sawyer County School Comm. (1959), 7 Wis. (2d) 437, 96 N. W. (2d) 810, the petition filed during the pendency of an appeal of a prior petition conferred no jurisdiction, as both proceedings dealt with the same territory. In Balson v. Joint County School Comm. (1963), 19 Wis. (2d) 96, 119 N. W. (2d) 438, in construing sec. 40.025 (1) (c), Stats., we pointed out the second proceeding was void if it pertained to the territory involved in the first proceeding whether or not the order issued in the second proceeding affected the territory involved in the first proceeding. In our recent case of Ford v. Rothwell (1964), 23 Wis. (2d) 80, 126 N. W. (2d) 489, we held the pre-emption of the appeal as the statute then existed ended with the filing of the judgment of the circuit court.

The appellants contend the action of the Rock county school committee in making its order of August 29th was arbitrary and capricious because in detaching all the property of the Barr district excepting the Sahy property and attaching it to Orfordville, it left a school district of 90 noncontiguous acres. In State ex rel. La Crosse v. Rothwell (1964), 25 Wis. (2d) 228, 130 N. W. (2d) 806, 131 N. W. (2d) 699, we stated the determination of school-district boundaries was a legislative function which may be delegated but that the power may not be exercised arbitrarily or to discriminate or deny equal protection of the laws. We do not consider the effect of the exercise of power necessarily determines the character of its exercise. In Lewis Realty v. Wisconsin Real Estate Brokers’ Board (1959), 6 Wis. (2d) 99, 94 N. W. (2d) 238, we did find the result of an administrative-agency action sufficient to indicate arbitrariness on the part of the board in imposing a penalty. While it can be admitted the four noncontiguous parcels of land left composing the Barr district could not and should not constitute a separate school district, nevertheless this temporary result was not the result of the arbitrary exercise of power by the Rock county school committee.

At the time of its action on August 29, 1962, the committee was under the compulsion of sec. 40.035, Stats., to place all the territory in Rock county in a school district operating a high school; such action was to have been taken by July 31, 1962. But the Rock county school committee was confronted with a dilemma of disregarding the order of June 8th which was then on appeal and attaching all of the territory of the Barr school district to the Orfordville district or of recognizing that order as pre-empting the jurisdiction of the Sahy property and excluding it from its order attaching the rest of the Barr school district to the Orfordville district. Making this choice was not an arbitrary action. Arbitrary or capricious action on the part of an administrative agency occurs when it can be said that such action is unreasonable or does not have a rational basis. Chicago, M., St. P. & P. R. Co. v. Public Service Comm. (1954), 267 Wis. 402, 66 N. W. (2d) 351. Arbitrary action is the result of an unconsidered, wilful and irrational choice of conduct and not the result of the “winnowing and sifting” process. The Rock county school committee, in considering and in doing what might be said to be the best it could do as it saw the problem confronting it, did not arbitrarily exercise its power.

Finally, the appellants argue the circuit court in modifying the order appealed from unlawfully usurped and exercised legislative authority. In modifying the order to include the Sahy property in attachment to the Orfordville school district, the trial court did not, and we believe correctly, place the exercise of its power on the correction of an inadvertent error of description. The exercise of power to modify an order of an administrative agency in such respect was upheld in School Board v. State Superintendent (1963), 20 Wis. (2d) 160, 121 N. W. (2d) 900, and Joint School Dist. v. Sosalla (1958), 3 Wis. (2d) 410, 88 N. W. (2d) 357. The circuit court considered it had the power as a reviewing court under ch. 227, Stats., to modify the order, and we agree.

Although the appellants argue the reviewing court can only modify an administrative agency’s order when the appellants’ rights have been prejudiced, we do not consider the appellants’ rights on this appeal are prejudiced by the modification of the order. Nor do we consider the modification by the circuit court as being an exercise of the legislative function. The legislature by ch. 563, Laws of 1959, creating sec. 40.035, Stats., made the legislative determination that all territory in the state was to be included within a school district operating a high school by July 1, 1962. The only discretion left was a choice in some cases of a high school district. This choice was left to the usual methods of creating and changing school districts until July 1, 1962. After that date the exclusive method was by action of the county school committee with a mandate that the purpose of the statute be accomplished not later than July 31, 1962. Because the joint Rock-Green county school committee erroneously included the Sahy property in the attachment to the Brod-head district, it attempted to correct this by its rescinding order of June 29, 1960, before the order of June 8th became effective. It is without question on the record the Rock county school committee would have included the Sahy property in the attachment to the Orfordville district if it thought it could validly do so while the appeal was pending from the June 8th order or if it were sure the order of June 29th was valid and effective. The modification of the order merely effectuates the intention of the school committee and no discretion or choice is made by the court as a legislative function.

By the Court. — Judgments affirmed.

Wilkie, J., took no part.

       “40.025 General provisions relating to reorganization. (1) Jurisdiction; acquisition, continuance and loss thereof. . . .
      “(c) Jurisdiction, when acquired as prescribed in pars, (a) and (b), continues until the reorganization authority disposes of the matter before it, unless lost as provided in par. (d). When the making of a reorganization order is pending before a reorganization authority or such order has been made, any other reorganization proceeding or order made by that or any other reorganization authority, after jurisdiction has been acquired as provided in par. (a) or (b) and prior to the going into effect of an order made and filed pursuant thereto, pertaining to all or any part of the territory included in the order, is void.”


author: Gordon, J.

text:
    Wegerer, by Guardian ad litem, and others, Respondents, v. Koehler and another, Appellants.

      September 7

    October 5, 1965.

      For the appellants there was a brief and oral argument by D. J. Regan of Milwaukee.
    For the respondents there was a brief by Eisenberg & Kletzke, attorneys, and Edwin A. Star of counsel, all of Milwaukee, and oral argument by Sydney M. Eisenberg.

   Gordon, J.

The sole issue on this appeal is the claim of excessive damages. We will examine separately the injuries of each of the four plaintiffs.

The Injuries of Wesley Conklin.

The jury awarded damages for pain, suffering, and disability to Wesley Conklin in the amount of $6,500. Mr. Conklin was born on June 24, 1942. He was in the back seat of the car, leaning forward, when the collision occurred. He testified that the car slid forward about two feet after the impact; he flew backward, hit the side of the doorjamb and back seat, arid then bounced forward, hitting the front seat with his neck and shoulder.

He visited Dr. Tax the next morning, complaining that he could hardly move his right arm, that his back was stiff, and that he was experiencing headaches. He stated that he had to leave his job since he could not do the necessary lifting because of his back and arm pain. At the time of the trial he was employed as a billing clerk.

At the trial, Mr. Conklin said that he still had pain in his back and shoulder. He testified that he could not lift over 10 pounds without getting backaches and had difficulty bending over and picking up.

Dr. Tax treated Wesley Conklin on seven occasions after the accident. His diagnosis was a musculo-ligamentous strain of the lower back and lumbar spine and a traumatic myositis of the muscles of the right shoulder girdle. He testified that he believes the condition is probably permanent.

Dr. Salinsky examined Mr. Conklin on only one occasion and testified that he had sustained a traumatic cervical syndrome, in addition to the musculo-ligamentous strain of the lower back. He testified that Wesley Conklin had suffered a musculo-rotator cuff injury to the right shoulder and that he will experience some pain and stiffness involving the right shoulder, especially upon heavy lifting or forceful pushing with the right upper extremity. He testified that in his opinion the residuals which he delineated are permanent.

Dr. Coles examined Mr. Conklin for the defendants on one occasion and testified that it seemed probable that he sustained a lumbo-sacral sprain in the accident. He also testified that at the time of his examination he was unable to find any evidence of permanent residuals flowing from the accident.

The Injuries of Adrian Conklin Kowalczewski.

The jury awarded damages to Adrian Conklin Kowal-czewski in the sum of $7,500 for pain, suffering, and disability. Mrs. Kowalczewski was born on October 23, 1944. She was in the front seat of the car when the collision occurred and testified that the impact threw her around, causing her to strike her head on the rearview mirror.

She visited Dr. Tax the next morning, complaining of nausea, headaches, and pain in her back, shoulder, and neck. Treatment continued for four and one-half months. She was employed at the time of the accident, doing domestic work for $20 per week plus meals, but she claimed thát she had to discontinue this job for approximately six months. She was involved in a second accident in 1963.

At the time of the trial, Mrs. Kowalczewski stated that she still gets headaches which last from the morning until midafternoon and that her neck bothers her when she touches her head. She also testified that when she turns her head a very sharp pain is elicited along the right side of the neck into the shoulder.

Dr. Tax examined Mrs. Kowalczewski on 23 occasions and diagnosed her injuries as a musculo-ligamentous strain of the cervical spine, a contusion to the forehead, and acute traumatic myositis of the right trapezius muscle. He testified that the pain experienced upon extreme flexion of her head would be permanent but that the headaches may improve.

Dr. Salinsky examined her on just one occasion and testified that she had sustained an acute traumatic cervical syndrome and injury to the supporting ligaments of the cervical spine. He stated that Mrs. Kowalczewski would continue to experience pain and stiffness in the base of the neck upon extreme flexion of the head and neck. He expressed the opinion that this condition is probably permanent.

At the instance of the defendants, Mrs. Kowalczewski had an examination by Dr. Coles, and he testified that she had probably sustained a contusion to the forehead and a cervical sprain, but he could find no evidence of permanent residuals flowing from the accident.

The Injuries of Susan St, Piere Conklin.

The jury awarded damages to Susan St. Piere Conklin in the amount of $3,500 for pain, suffering, and disability. Mrs. Conklin was born on February 25, 1945. She was in the back seat of the car when the collision occurred and stated that upon impact she was pushed forward, causing her to hit her head on the front seat. She visited Dr. Tax, complaining of headaches and backaches.

At the time of the trial she was still experiencing headaches, backaches, and pains in her shoulder. She also testified that her injuries interfered with her housework.

Before the accident she had earned $5 to $10 per week employed as a baby-sitter. She had to discontinue this type of employment after the accident. She stated that she gets backaches when she sits down and that this fact impedes her present employment on an assembly line.

Dr. Tax examined Mrs. Conklin on 15 occasions and testified that her injuries consisted of a musculo-ligamentous strain of the cervical spine, myositis of both trapezius muscles and a contusion of her gum. Dr. Tax also examined Mrs. Conklin the night before the trial and found that there was tenderness medial to the right shoulder joint and a weakness in the grip of her right hand. He expressed the opinion that since this weakness and tenderness had persisted for three years, it constituted a permanent disability.

Mrs. Conklin was examined on one occasion by Dr. Salinsky, and he testified that she had sustained a cervical-dorsal strain following the whiplash effect to her head and neck. He also indicated that the patient could anticipate future pain and stiffness to the base of her cervical spine. He further testified that Mrs. Conklin had sustained an injury to the musculo-rotator cuff and that the residual complaint of pain involving the right shoulder was consistent with the healed injury involving the cuff.

When Dr. Coles, the defendants’ examining physician, examined Mrs. Conklin, he found that she had probably sustained a contusion to the forehead, a cervical strain, a contusion of the right shoulder and a lumbo-sacral sprain as a result of the accident. He was not able to find any evidence of permanent residuals resulting from the accident.

The Injuries of Terry Wegerer.

The jury awarded Terry Wegerer damages in the amount of $5,000 for pain, suffering, and disability. Terry Wegerer was born on May 17, 1943. He was the driver of the car when the collision occurred and testified that the impact tore his grasp from the wheel and threw him back against the seat.

He was on leave from the navy at the time of the accident. Upon return to his base, he claimed that he experienced backaches and that bending became difficult. He received treatment from navy doctors and was given lighter duties. He was separated from the service on March 28, 1964.

At the time of the trial, he stated that he was still experiencing backaches and could not do the work he was formerly able to do. He testified that he had had no trouble with his back before the accident, but that he now gets backaches when he walks “five or six blocks” or after “driving an hour.”

Dr. Salinsky examined Terry Wegerer on April 13, 1964, and testified that he had sustained a musculo-ligamentous tear involving the lumbo-sacral joint. He further stated that his injured structure tissue had become filled with scar tissue which reduces the elasticity of the ligament; when pressure is applied to the area, he stated that Mr. Wegerer will have pain. Dr. Salinsky further stated that if Mr. Wegerer is required to push any force, it will produce pain and stiffness. Dr. Salinsky opined that the presence of such scar tissue is a permanent condition.

Dr. Coles examined Terry Wegerer on one occasion and testified that it seemed probable that the patient had sustained a lumbo-sacral sprain in the automobile accident, but he was unable to find any evidence of permanent residuals. He further stated that the patient’s subjective complaints did not constitute a basis for any permanent disability.

Testimony as to Subjective Symptoms.

The trial court concluded that Dr. Salinsky’s services were procured exclusively for the purpose of his giving testimony. Since Dr. Salinsky did not purport to treat any of the plaintiffs, he was not entitled to testify as to subjective symptoms, pursuant to Ritter v. Coca-Cola Co. (1964), 24 Wis. (2d) 157, 128 N. W. (2d) 439. We note that the record does not disclose that any specific motion for a new trial was presented to the lower court regarding this alleged error. Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 518, 80 N. W. (2d) 380; Withers v. Tucker, ante, p. 82 at page 87, 135 N. W. (2d) 776; Dombeck v. Chicago, M., St. P. & P. R. Co. (1964), 24 Wis. (2d) 420, 430, 129 N. W. (2d) 185; Chapnitsky v. McClone (1963), 20 Wis. (2d) 453, 465, 122 N. W. (2d) 400. Also, there has been no request to this court for a new trial based on this alleged error. The appellants have asked that we apply the Powers rule as to the damages.

Even if the claimed improper receipt of testimony as to subjective symptoms might have supported a motion to the trial court for a new trial, it would not, in our opinion, be sufficient to activate this court to apply the Powers rule as to the quantum of damages. Cf. Spleas v. Milwaukee & Suburban Transport Corp. (1963), 21 Wis. (2d) 635, 646, 124 N. W. (2d) 593.

Conclusion.

Upon careful review of the conflicting medical evidence relating to each of the four plaintiffs, we share the trial court’s conclusion when it said:

“This court feels that the individual amounts in the verdict are high, but not excessive. . . . There is substantial evidence that was adduced during the course of the trial that would substantiate the answers which have been incorporated in the special verdict by the jury. . . .”

There is nothing inherently excessive in these awards for the whiplash injuries sustained by these plaintiffs. See Erdmann v. Milwaukee Automobile Mut. Ins. Co. (1963), 20 Wis. (2d) 439, 122 N. W. (2d) 430; O’Brien v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis. (2d) 551, 117 N.W. (2d) 654.

By the Court. — Judgment affirmed.


author: Wilkie, J.

text:
    Zweifel, by Guardian ad litem, and another, Plaintiffs and Respondents, v. Milwaukee Automobile Mutual Insurance Company and others, Defendants and Appellants: Hartford Accident & Indemnity Company and another, Defendants and Respondents.

      September 7

    October 5, 1965.

      For the defendants-appellants there was a brief and oral argument by Crosby H. Summers of Janesville.
    For the plaintiffs-respondents there was a brief by Hall & Griffith of Madison, and oral argument by Laurence W. Hall.

    For the defendants-respondents there was a brief by Geffs, Geffs, Block & Geffs of Janesville, and oral argument by Jacob Geffs.

   Wilkie, J.

Three general questions are presented on this appeal. The first concerns the negligence of each driver and the jury’s apportionment of the negligence as between Rowley (80 percent) and Propst (20 percent). The second involves the alleged improper closing arguments made by both respondents’ counsel. The third pertains to whether or not there was prejudicial error committed during the trial on numerous points alleged by appellant.

Negligence.

On the night of December 21, 1960, Evansville high school played a basketball game at Cambridge. Among the Evansville youths attending the game were respondent Mary Zweifel, Kenneth Nelson, and Carol Felber, who went in a car driven by appellant Rowley, and Sharon Karroll who rode with Propst. Appellant left Cambridge a short time ahead of Propst after the game. Each traveled through Stoughton and on to Cooksville. After both cars had stopped at an intersection in Cooksville, Propst passed Rowley and pulled some distance ahead. The cars then proceeded south toward Evansville on Tolies road.

Tolies road runs north and south and is straight and blacktopped for several miles outside of Cooksville. It varies in width from 18 to 20 feet with a one-foot gravel shoulder. There is no center line. A few miles south of Cooksville is a slight hill. The Sawtelle farm is situated on the west side of the road at the bottom of the incline. On the east side of Tolies road, about 30 feet south of the Sawtelle driveway and three feet from the edge of the blacktop, was a guidepost marking the location of a culvert running under the road. Some 210 feet south of the guidepost was a driveway to another house (hereinafter tenant house). There was a ditch on the east side of the road which commenced at a point 125 feet north of the Sawtelle driveway and ran into a culvert which was under the tenant-house driveway. The ditch varied in depth from three feet at its origin to five feet at the culvert. There was some snow off the road and in the ditch, but the pavement was clear and dry.

Appellant was traveling about 55 miles an hour as he came over the hill and noticed that he was gradually overtaking Propst who was going about 50 in his own lane. Appellant testified that he sounded his horn when he was about 50 feet behind Propst and then pulled out to pass. He further stated that when the front of his car was approximately even with the rear of Propst’s car, the latter veered into the left lane — despite continued blasts on the horn — and forced him onto the shoulder. This occurred at a point 560 feet from the tenant house or 320 feet from the Sawtelle driveway. Appellant says that he elected to continue to make his pass but could not because Propst would not yield. He hit the guidepost and it spun up, broke his windshield, and caused him to lose control of his car. The car dropped into the ditch and kept going until it hit the culvert. Appellant never applied his brakes although respondent testified that she told him to. Rowley’s story was substantiated for the most part by his three passengers, but Miss Zweifel thought that he sounded his horn for the first time when Rowley was alongside Propst and Propst began to swerve. There was no actual contact between the cars.

Propst, his passenger Sharon Karroll, and Mrs. Sawtelle all testified that they did not hear Rowley’s horn. Propst did not remember deviating from his lane, but said that even if he had, there was still room for a car to pass. Miss Karroll and Propst both testified that Rowley’s car was ahead of them when it hit the guidepost and that they saw the post fly over Rowley’s car. Propst stopped at the culvert and took the occupants of the car to a doctor in Evansville. Rowley testified that during the trip Propst admitted crossing into the left lane, but this was denied by both Propst and respondent. Respondent told Propst not to “blame yourself; it wasn’t your fault.” Rowley, Nelson, and Miss Felber attested to hearing a comment to this effect.

Both drivers were found causally negligent by the jury. These findings will not be upset if there is any credible evidence which, under any reasonable view, fairly admits of an inference supporting the finding.

Rowley contends that on the facts he could only have been found negligent for failing to give an audible signal, and that the jury could have found him negligent in this respect only if they concluded that he did not sound a timely and audible signal that Propst, being reasonably attentive, could have heard. Citing Kincaide v. Hardware Mut. Casualty Co. and Frankland v. Peterson, Rowley argues that the testimony of Propst, Miss Karroll, and Mrs. Sawtelle, that they did not hear a horn, was negative and insufficient to create a jury issue in this regard in light of the positive testimony of himself and his three passengers that the horn was sounded.

Although the jury could have concluded from all this testimony that Rowley sounded his horn the jury could have concluded the opposite. The so-called affirmative testimony of Rowley and his three witnesses was not substantially the same. Indeed, although she agreed that appellant did sound his horn, respondent Zweifel testified that he did not do so until his car was abreast of Propst’s. Thus, even assuming that appellant actually gave an audible signal, the jury could have found, because of the disputed testimony, that it was untimely.

It is clear, therefore, that there was a jury question on whether Rowley gave the required audible signal and there was credible evidence to support a jury finding of negligence in this respect.

Propst admits that there was a jury issue as to whether he invaded the left lane but argues that since the accident occurred after Rowley had actually pulled ahead of him, then any negligence on his part could not be causal. Appellant traveled 560 feet between the time he turned off the road and the time he hit the culvert. The evidence does show that the Propst vehicle was in the right lane and somewhat behind the Rowley vehicle when the latter struck the guidepost and went out of control. And Rowley admittedly chose to accelerate rather than brake as Miss Zweifel requested, in order to complete the pass. Thus, it would have been permissible for the jury to infer that Rowley, having passed Propst, was negligent in the way he managed his vehicle, and that this, and not his failure to signal or Propst’s veering, was ultimately the sole cause of the accident. But the jury could also have believed that Propst, having heard Rowley’s warning signal, set off the chain of events leading to the collision by forcing the latter off the road, but that Rowley’s fateful decision to complete his pass was a more significant factor.

On these facts there was evidence on which the jury could rightfully determine that each driver bore some blame for the accident and the apportionment of that negligence as between the two drivers was properly a question to be answered by the jury.

Closing Arguments to the Jury.

Appellant claims that improper argument was made to the jury in several respects. We need not consider whether or not the particular arguments were improper, and if improper, were prejudicial, for the reason that the appellant failed to move for a mistrial before the jury returned its verdict and, therefore, waived any complaint he might have in this regard. Because of this waiver, we do not consider it necessary to detail the alleged improper arguments or to discuss the merits as to any of these arguments.

In Kink v. Combs, an argument alleged to have been prejudicial was made by plaintiff’s counsel during his opening statement to the jury. This court held that if he felt aggrieved, the defendant should have moved for mistrial at the close of the case. Where a motion for mistrial is grounded on alleged improper and prejudicial argument to the jury, such a motion must be made at some time before the jury returns its verdict.

In connection with the assertions of appellant with respect to improper arguments by counsel, the return on this appeal includes the transcribed arguments of counsel for both respondents but no part of the argument by counsel for the appellant. Respondents have moved to strike that part of the return that contains their arguments. That motion is denied. The arguments are properly part of the record although, of course, this court on appeal is bound to be handicapped where a point is made of improper argument where a fair consideration must necessarily involve a review not only of arguments in the record, but those made by counsel, which arguments have not been transcribed and are not part of the record. Trial judges in certifying a trial record on appeal are permitted by affidavit dr otherwise to make the record as complete as possible so a fair consideration may be given on appeal to alleged improper argument. It is noted that in this case the arguments of respondents’ counsel were taken down and transcribed at the request of appellant. In view of the importance of oral arguments and the number of times on which our court has been asked recently to consider appeals based largely on alleged prejudicial arguments, we are of the opinion that the whole problem of whether, and to what extent, oral arguments to the jury should be taken down and transcribed as part of each trial record is one that merits the attention of the judicial council. Every party requesting a reporter to take down or transcribe oral argument to a jury should make this request part of the trial record so that opposing counsel will be given an opportunity to know of this request and, if desired, to make a similar request of his own.

Errors in Evidence and Instructions.

Appellant has numerous complaints in regard to either the introduction or rejection of certain evidence.

First, that it was error to allow respondent Mary Zweifel to testify on direct examination that she went to work after graduating from high school instead of going to college “because . . . my parents could not afford it.” In Kelly v. Southern Wisconsin R. Co. this court said that it was error to admit evidence of the financial condition of the plaintiff’s father, but concluded that such an error was of “minor character” and not prejudicial under the circumstances. In the present case, any error resulting from admitting the testimony in question was likewise nonprejudicial. This is because the reply was directed to the financial condition of Mr. Zweifel, who was also a party plaintiff, and since the special-verdict question relating to his damages was answered by the court the jury could not have helped him had they wanted to. In addition, the jury was well instructed as to the items of damages that could be awarded to respondent. Appellant relies on Dietz v. Goodman, but this case is distinguishable because the improper question and answer concerned the inability of plaintiff to obtain employment and this was held “together with [other] matters” to constitute error “under the circumstances.”

Second, that it was error to refuse to allow written statements taken by a deputy sheriff from respondent and Propst after the accident to be introduced into evidence. Portions of these statements dealt with whether Propst had swerved from his lane. It is true that where a witness does not have an independent recollection of the facts but has to rely on a memorandum to refresh his memory, the notes or written statement may be introduced into evidence as a part of his testimony. Even if it was error not to admit the statements, and this is doubtful since the rule is couched in permissive and not mandatory terms, the error is not prejudicial since the statements were read to the jury anyway.

Third, that the trial court erred in not allowing Propst to be impeached with his own unsigned statement. Shortly after the accident Propst gave a statement to appellant’s counsel but refused to sign it. Appellant contends that since there is no distinction between oral and written declarations, the statement is admissible as an admission against interest, and it was error to deny admission of the statement. It is not necessary to consider whether there was any error in this refusal since, in any event, there was no prejudice to the appellant because the information in the statement was elicited upon Propst’s cross-examination. For example, appellant wanted to show that Propst found Rowley’s coming alongside “a complete surprise.” This very point was brought out when appellant’s counsel read portions of Propst’s adverse into the record.

Fourth, that the trial court erred in refusing to permit appellant to show that Propst had been instructed by his insurance company not to sign any statements. Since this testimony had no material bearing on any of the issues in the case, it was not error to exclude it.

Fifth, that it was error for Propst’s counsel to ask appellant, “[W]hile the doctor was treating you and about a week after the accident, were you in another accident?” Although Propst submits that the question was proper since Rowley had filed a cross complaint for 'damages for his injuries, and innocuous because there was no reference to Rowley’s driving an automobile, it is apparent that this question, asked without proper foundation, could well influence the jury to the end that they would doubt his driving ability. However, any error was not prejudicial. When it was developed that there were no injuries to Rowley in this other accident, the subject was dropped and the jury was immediately and carefully admonished to disregard the question because it had no bearing on the case. Conwell v. Milwaukee Automobile Mut. Ins. Co., cited by appellant, is distinguishable not only because it involved a long series of questions but the questions on their face were clearly of a more objectionable nature.

Sixth, that it was error to refuse to allow Propst to testify whether he reported the accident to his insurance company. Appellant contends that this ruling precluded him from determining whether Propst had ever given a statement to his insurance company. But appellant already knew that there was no such statement. Propst testified on his adverse examination that he didn’t recall signing any statement and added at a conference, out of the presence of the jury, that he did not believe he had even made any statement. Propst’s counsel denied knowledge of any statement.

Seventh, that it was error not to allow the jury to consider Rowley’s hospital report. This record, which was received in evidence, contained the notation “old healed fract of nose with septal deviation” under the “Diagnosis” heading. Sec. 327.25 (2), Stats., permits introduction of hospital records except for portions which constitute a “medical opinion or diagnosis.” Appellant offered to cover up the “Diagnosis” section but the trial court refused to let the report go to the jury. Whether or not an exhibit should be submitted to the jury is a matter within the discretion of the trial court. Although there might be situations where it is imperative that the jury have the opportunity to study a report, this was not such a case. Appellant was not seriously injured and the facts relating to his injury and treatment were fully brought out in the testimony. Clearly, there was no abuse of discretion by the trial court on this matter.

Appellant contends that the trial court erred in instructing the jury that Propst could operate his vehicle oblivious to traffic behind him until he heard a signal. The jury was told: (1) That the front driver could assume that there was no car to his rear until he becomes aware of the car “by signal or otherwise; ” (2) that the front driver was obliged to keep a lookout “to the rear if caution requires;” (3) that the front driver must look to the rear before operating his car in a manner which would create a hazard to the following vehicle; (4) that a driver cannot deviate from his course “until such movement can be made with reasonable safety; ” and (5 ) that before any driver moves to the left on the highway he must “determine the presence, location, distance, and speed of any vehicle that might be affected.” A consideration of the instructions as a whole discloses that the jury was properly instructed.

We have reviewed the entire record of this week-long vigorously contested trial and are of the opinion that justice has been done.

By the Court. — Judgment affirmed with costs. Motion to strike portions of the transcript denied without costs.

        St. Paul Fire & Marine Ins. Co. v. Burchard (1964), 25 Wis. (2d) 288, 130 N. W. (2d) 866; Rodenkirch v. Johnson (1960), 9 Wis. (2d) 245, 101 N. W. (2d) 83.

       (1962), 15 Wis. (2d) 474, 113 N. W. (2d) 147.

       (1955), 268 Wis. 394, 67 N. W. (2d) 865. The court stated at page 397: “To comply with the purpose of the statute the warning must be given in volume and at a time and place sufficient to inform a driver reasonably attentive to his own obligation to other users of the highway that an overtaking motorist intends to pass him and is about to do so.” Quoted with approval in Kincaide v. Hardware Mut. Casualty Co., supra, footnote 2, at page 477. Instruction given here by the trial court contained this language. See Wis. J I—Civil, Part I, 1144.

       Relying on Ryan v. La Crosse City R. Co. (1900), 108 Wis. 122, 83 N. W. 770, and Jordan v. Osborne (1912), 147 Wis. 623, 133 N. W. 32.

         Granger v. Mutual Service Casualty Ins. Co. (1963), 19 Wis. (2d) 302, 120 N. W. (2d) 140; Davis v. Skille (1961), 12 Wis. (2d) 482, 107 N. W. (2d) 458; Kraskey v. Johnson (1954), 266 Wis. 201, 63 N. W. (2d) 112.

        Kink v. Combs, ante, p. 65, 135 N. W. (2d) 789.

        Ibid.

        Id. at page 72.

        Kink v. Combs, supra, footnote 6; Andritsch v. Henschel (1965), 27 Wis. (2d) 461, 134 N. W. (2d) 426; Combs v. Peters (1964), 23 Wis. (2d) 629, 127 N. W. (2d) 750, 129 N. W. (2d) 174; Fields v. Creek (1963), 21 Wis. (2d) 562, 124 N. W. (2d) 599.

       (1913), 152 Wis. 328, 140 N. W. 60.

       (1950), 256 Wis. 370, 41 N. W. (2d) 208.

       Id. at page 373.

        Neuenschwander v. Hornof (1956), 273 Wis. 471, 78 N. W. (2d) 770; Hart v. Godkin (1904), 122 Wis. 646, 100 N. W. 1057; Bourda v. Jones (1901), 110 Wis. 52, 85 N. W. 671.

         Kraut v. State (1938), 228 Wis. 386, 280 N. W. 327.

         Knowles v. Stargel (1952), 261 Wis. 106, 52 N. W. (2d) 387; Gauthier v. Carbonneau (1938), 226 Wis. 527, 277 N. W. 135; see also Millay v. Milwaukee Automobile Mut. Ins. Co. (1963), 19 Wis. (2d) 330, 120 N. W. (2d) 103; Seyring v. Eschweiler (1893), 85 Wis. 117, 55 N. W. 164.

       (1963), 19 Wis. (2d) 298, 120 N. W. (2d) 68.

       Created by Supreme Court Order, 17 Wis. (2d) xxiii.

        Willenkamp v. Keeshin Transport System, Inc. (1964), 23 Wis. (2d) 523, 127 N. W. (2d) 804.


author: Beilfuss, J.

text:
    Interstate Finance Corporation, Respondent, v. Department of Taxation, Appellant.

      September 7

    October 5, 1965.

      For the appellant the cause was argued by Harold H. Persons, assistant attorney general, with whom on the briefs was Bronson C. La Follette, attorney general.
    For the respondent there was a brief by Ross, Stevens, Pick & Spohn, attorneys, and Frank A. Ross, Sr., of counsel, all of Madison, and oral argument by Frank A. Ross, Sr.

       Motion for rehearing denied, without costs, on November 30, 1965.

   Beilfuss, J.

On this appeal the issues are: (1) Were the operations of Interstate in Wisconsin an integral part of a multistate unitary business; (2) if such operations were an integral part of a unitary business was it mandatory that the apportionment method be used to compute the Wisconsin taxable income; and (3) if the apportionment method is used should the income of Interstate’s wholly owned subsidiaries be included in the accounting formula ?

Interstate is engaged principally in automobile financing at both the wholesale and retail levels. The wholesale business involves financing of automobile dealers on their stock of automobiles. The retail business involves the purchase of the automobile dealer’s interest in its consumer sales contracts. ’

All of the funds necessary for these loaning transactions are acquired by the home office. Interstate’s outstanding accounts receivable are about $40,000,000. About 75 percent or $30,000,000 of these funds are acquired by Interstate in the money market on open account on plain note basis. All of the negotiations by which Interstate obtains the funds to carry on its business are conducted by the home office through its president, Mr. David B. Cassat, and his son and vice-president, George Cassat. Through the efforts of Mr. Cassat and his son, Interstate has obtained a substantial line of credit in a great many of the major banks throughout the country. Additional funds are obtained from insurance companies and other institutional lenders as well as from the sale of preferred stock.

Interstate’s home office determines all matters of general company policy and exercises general supervisory control over the activities of each of the branches. It selects, trains, transfers, consults and generally oversees the branch managers. It sets policy and extensively reviews the activities of the branch office. The home office participates in loan decisions on wholesale business and loans over $5,000, maintains a central accounting system, takes possession of most of the security documents, accepts drafts, withdraws funds from branch depositories, pays all branch employees, and designates local law firms to be used by the branches. Quite significant is the fact that the home-office expense is allocated to various branches based upon the number of accounts serviced compared with the total number serviced.

The branch manager does have considerable responsibility and authority. He selects, directs, and supervises the staff of the branch office, including solicitors, collectors, stenographers, and clerks. He makes the decision on all retail loans under $5,000 subject only to home-office guidelines. He supervises collections. He checks security and the sufficiency of the security instruments. He determines. local advertising policy.

As to the wholesale financing, the solicitation is done by the branches but the decision to finance the specific dealers is made jointly by the branch managers and the home office. The home office either dictates or approves the terms of the dealer wholesale loans at their inception.

The record reveals other evidence as to the participation of the home and branch offices but it is not necessary to report it in detail for a determination of the issues.

The statute directing the manner of imposition of income tax upon persons (including corporations) doing business within and without the state is sec. 71.07 (2), Stats. In 1949, at the request of the governor, the statute was amended to its present form. The obvious purpose of the amendment was to expand the use of the apportionment formula in calculating the income tax of unitary-business organizations doing business within and without the state.

The statute has remained unchanged since 1949 and provides as follows:

“(2) Persons engaged in business within and without the state shall be taxed only on such income as is derived from business transacted and property located within the state. The amount of such income attributable to Wisconsin may be determined by an allocation and separate accounting thereof, when the business of such person within the state is not an integral part of a unitary business, provided, however, that the department of taxation may permit an allocation and separate accounting in any case in which it is satisfied that the use of such method will properly reflect the income taxable by this state. In all cases in which allocation and separate accounting is not permissible, the determination shall be made in the following manner: There shall first be deducted from the total net income of the taxpayer such part thereof (less related expenses, if any) as follows the situs of the property or the residence of the recipient; provided, that in the case of income which follows the residence of the recipient, the amount of interest and dividends deductible under this provision shall be limited to the total interest and dividends received which are in excess of the total interest (or related expenses, if any) paid and allowable as a deduction under section 71.04 during the income year. The remaining net income shall be apportioned to Wisconsin on the basis of the ratio obtained by taking the arithmetical average of the following 3 ratios: . . .”

From the recited facts we conclude that the board has before it ample credible evidence upon which to find that Interstate was a unitary business and that the Wisconsin branches were an integral part thereof.

Celon Co. v. Department of Taxation (1955), 269 Wis. 372, 69 N. W. (2d) 453, construed sec. 71.07 (2), Stats. In defining a unitary business the court quoted a definition contained in State ex rel. Maxwell v. Kent-Coffey Mfg. Co. (1933), 204 N. C. 365, 168 S. E. 397, as follows:

“ ‘It is admitted in the brief for appellee that its business is unitary. That term is simply descriptive, and primarily means that the concern to which it is applied is carrying on one kind of business — a business, the component parts of which are too closely connected and necessary to each other to justify division or separate consideration, as independent units. By contrast, a dual or multiform business must show units of a substantial separateness and completeness, such as might be maintained as an independent business (however convenient and profitable it may be to operate them conjointly), and capable of producing a profit in and of themselves.
“ ‘Conceding that a 'Unitary business may produce an income which must be allocated to two or more states in which its activities are carried on, such a business may not be split up arbitrarily and conventionally in applying the tax laws. It would seem to be necessary that there should be some logical reference to the production of income; the distinction should be founded on a corresponding difference in apportionment of productive capital, investment, or employment, within the unitary business.’ ”

In W. R. Arthur & Co. v. Department of Taxation (1962), 18 Wis. (2d) 225, 230, 118 N. W. (2d) 168, we said: “A ‘unitary’ business is one which functions as a single unit; that is, it is not divided into a separate entity for each of the states in which it operates.”

The text authority, Altman & Kiesling, in Allocation of Income in State Taxation (2d ed.), p. 101, states:

“. . . the essential test is whether or not the operation of the portion of the business within the state is dependent upon or contributory to the operation of the business outside the state. If there is such a relationship the business is unitary.”

The Wisconsin branches were wholly dependent upon the home office for the only commodity upon which its business was based, namely, money to lend. In addition thereto, the control and supervision by the home office over the branch managers and branch activities were substantial. Because of the policies, direction and control exercised by the home office, the branches could not operate independently. They were a dependent part of a business unit.

The branches were also an integral part of the entire business of Interstate. It is apparent the volume of business done by the Wisconsin branches was an important factor in determining the amount of money that Interstate borrowed in the money market for its overall business operations. It is equally significant that the expense of maintaining the home office was allocated proportionately to the number of accounts serviced by the various branches. These two factors alone made the Wisconsin branches an integral part of a unitary business.

Interstate contends that because of the nature of the finance business, as contrasted to a manufacturing or service business, the branches could operate independently. They could borrow the funds to do business with the same sources and same ease and their business could be successfully operated without control and supervision from the home office. Even if this allegation is accurate, the fact is that the branches were not operated in that manner. If the branches were to be operated independent of the home office, substantial changes would occur in the scope of business activities of both the home office and the branch offices. The Wisconsin branches were an integral part of a unitary business engaged in business within and without the state.

Celon Co. v. Department of Taxation, supra, held that sec. 71.07 (2), Stats., required the Department of Taxation to accept the taxpayer’s returns submitted on an apportionment basis rather than a separate accounting allocation when it appeared that the Wisconsin operations were an integral part of a multistate unitary business.

The Celon Case discusses the legislative history of the statute and the 1949 amendment, including the recommendations of the legislative council and the governor. What we said in Celon will not be repeated here except the conclusion reached therein (p. 377):

“Probably the language of the statute is sufficiently clear without the above history to require that the apportionment method of accounting be used by a company engaged in business within and without the state when the business of such company within the state is an integral part of a unitary business. Certainly in view of the history of the amendment no other interpretation can be given to it.”

Interstate contends that the statute does not require the apportionment method of determining income tax be used where that method results in an unfair or inequitable tax as where it would in effect tax income not created or earned in Wisconsin; and further, that if the method used subjected the taxpayer to such a result the statute would be unconstitutional under both the Wisconsin and United States constitutions.

The subsections of sec. 71.07, Stats., do provide that where business conducted in the state is no t an integral part of a unitary business the allocation and separate accounting may be used. The subdivisions have set forth statutory ratios for the apportionment method but give the department considerable latitude in adopting a formula which will most accurately reflect a reasonable and equitable tax on the income earned in Wisconsin. The statute further provides that if the taxpayer can show, to the satisfaction of the Department of Taxation, that the ratio or formula used is unreasonable or inequitable the formulas may be altered to determine the tax.

The latitude of the statute is such that the statute itself is not unconstitutional as being arbitrary or unreasonable or taxing extraterritorial income. The application of the statute in some instances, however, might be.

Interstate contends that the returns filed on the allocation and separate accounting basis demonstrate that the Wisconsin branches either lost money or show an income less than that charged to them under the apportionment basis, and as such Wisconsin is imposing a tax on income not earned within the state.

In Butler Brothers v. McColgan (1942), 315 U. S. 501, 62 Sup. Ct. 701, 86 L. Ed. 991, the taxpayer, Butler Brothers, a wholesale merchandising company whose home office was in Illinois and had branches in seven different states, attempted to show that its branch in California operated at a $70,000 loss as reflected in a separate accounting return and that an income tax calculated upon an apportionment basis was unconstitutional because it taxed extraterritorial values. The United States supreme court, in deciding the issue, stated as follows (p. 507):

“One who attacks a formula of apportionment carries a distinct burden of showing by ‘clear and cogent evidence’ that it results in extraterritorial values being taxed. See Norfolk & Western Ry. Co. v. North Carolina, 297 U. S. 682, 688. This Court held in Hans Rees’ Sons v. North Carolina, supra, p. 135, that that burden had been maintained on a showing by the taxpayer that ‘in any aspect of the evidence’ its income attributable to North Carolina was ‘out of all appropriate proportion to the business’ transacted by the taxpayer in that State. No such showing has been made here.”

The burden to show that the formula used imposes an unreasonable or inequitable tax is clearly upon the taxpayer.

Interstate did not attack or challenge the formula either before the board of tax appeals or in the circuit court. Nor did it offer proof to show the tax was unfair under the apportionment formula used. This issue cannot be raised for the first time upon appeal to this court.

We have determined that Interstate is a unitary business and that the Wisconsin branches are an integral part thereof. Should the operations of the wholly owned subsidiary corporations be included in the apportionment accounting formula ?

The Department of Taxation insists that it must tax each legal entity separately. The three Wisconsin corporations did in fact each file its own independent and separate return for the years in question.

Interstate contends that if it is a unitary business and an apportionment formula must be used in reporting its income, then the operations of all of its wholly owned corporations must be included in the formula. Interstate points out that its relationship to the subsidiary corporations is the same as to the branches and that these corporations are a part of the entire economic unit. The trial court agreed with Interstate, reversed the board, and remanded the matter to the department.

Since the inception of our income-tax laws we have adhered to the legal-entity theory; that is, each separate legal entity is required to file its own separate return.

Wisconsin does not authorize income tax on a consolidated basis. The attorney general correctly argues that the state has on three occasions attempted to require consolidated returns of two or more multistate corporations and in each instance was advised that there was no statutory basis for such procedure. Northern States Power Co. v. Tax Comm. (1941), 237 Wis. 433, 297 N. W. 578; Curtis Companies, Inc., v. Tax Comm. (1934), 214 Wis. 85, 251 N. W. 497; Burroughs Adding Machine Co. v. Tax Comm. (1941), 237 Wis. 423, 297 N. W. 574.

Each of the cases just cited was decided before the 1949 amendment to sec. 71.07 (2), Stats. The trial court concluded that the 1949 amendment required the adoption of the “economic theory” because the statute as amended specifically referred to a “unitary business” and did not restrict it to a “legal entity” or single company.

Supporting the “economic theory” is Edison California Stores v. McColgan (1947), 30 Cal (2d) 472, 480, 183 Pac. (2d) 16. In that case 15 subsidiary corporations were included in the apportionment formula applied to the parent company. In coming to its decision, however, the California court was required to say this about its tax statutes:

“It may be assumed that section 14 of the act, which authorizes the commissioner to require a consolidated return, contemplates two or more corporations both or all of which are taxable as doing business within the state.”

Our statutes do not authorize the department to require a consolidated return. This difference is significant and controlling. The 1949 amendment authorizing the apportionment method for unitary businesses does not change the Wisconsin practice of requiring returns for each legal entity. Such a change would have to be implied. None of the administrative authority, nor direction for such a change, was made by the legislature. As the state points out, the administrative changes would be numerous, complex, and without legislative guidelines. If the legislature intended such a drastic change it could have or can do so. We do not believe the court should give such construction to the statute by implication.

We agree with the trial court that Interstate’s Wisconsin branches are an integral part of a multistate unitary business. and that Wisconsin income tax must be determined on an apportionment-basis formula. We disagree with the trial court in its determination that the operations of Interstate’s wholly owned subsidiary corporations should be included in the apportionment formula.

By the Court. — Judgment reversed, with directions to enter judgment affirming the order of the Wisconsin board of tax appeals.

Wilkie, J., took no part.

       In support of its contention, Interstate cites: Butler Brothers v. McColgan (1942), 315 U. S. 501, 62 Sup. Ct. 701, 86 L. Ed. 991; Newport Co. v. Tax Comm. (1935), 219 Wis. 293, 261 N. W. 884; Adams Express Co. v. Ohio (1897), 165 U. S. 194, 17 Sup. Ct. 305, 41 L. Ed. 683; Hans Rees’ Sons v. North Carolina (1931), 283 U. S. 123, 51 Sup. Ct. 385, 75 L. Ed. 879; Fisher, Treas. of North Dakota v. Standard Oil Co. (1926), 12 Fed. (2d) 744; Magnolia Petroleum Co. v. Oklahoma Tax Comm. (1941), 190 Okla. 172, 121 Pac. (2d) 1008; McWilliams Dredging Co. v. McKeigney (1956), 227 Miss. 730, 86 So. (2d) 672; Texas Co. v. Cooper (1958), 236 La. 380, 107 So. (2d) 676; Cleveland-Cliffs Iron Co. v. Dept. of Revenue (1950), 329 Mich. 225, 45 N. W. (2d) 46.

        W. R. Arthur & Co. v. Department of Taxation (1962), 18 Wis. (2d) 225, 118 N. W. (2d) 168.

       See also W. R. Arthur & Co. v. Department of Taxation, supra.

       Sec. 71.11 (7), Stats., permits the department to require consolidated “statements” by interrelated corporations when it has reason to believe that an improper net income is reported as to any one of the corporations because of improper intercorporate dealings. This statute has no application to the issue at handi