author: Wilkie, J. Gordon, J.

text:
    Moritz, Appellant, v. Allied American Mutual Fire Insurance Company and another, Respondents.

      February 5

    March 2, 1965.

      For the appellant there were briefs by Dudley O. Emmert of Manitowoc and Bert E. Fredrickson of Green Bay, and oral argument by Mr. Emmert.

    For the respondents there was a brief by Welsh, Trow-bridge, Bills, Planert & Gould of Green Bay, and oral argument by Lloyd J. Planert.

   Wilkie, J.

There are four issues presented on this appeal:

1. Did the trial court err in failing to find that appellant was negligent in operating her vehicle as a matter of law ?

2. Did the trial court err in submitting an ultimate-fact verdict rather than a detailed verdict ?

3. Did the trial court err in holding excessive the jury’s $6,500 damage award for personal injuries, and in reducing that award to $3,500 under the Powers rule ?

4. Did the trial court err in striking the damage award of $1,500 for nursing and domestic services ?

Mrs. Moritz’s Negligence.

The case was submitted to the jury on an ultimate-fact rather than a detailed form of special verdict as respondents desired. The trial court found, as a matter of law, that Erickson had operated his vehicle in a negligent manner prior to the accident. The trial court refused to find Mrs. Moritz negligent as a matter of law. Respondents contend that the court erred in failing to find appellant negligent as a matter of law in regard to lookout and turning. In Zeitlow v. Western Casualty & Surety Co. this court rejected a claim that the trial court erred in not finding the plaintiff negligent as a matter of law, by saying:

“We do not agree with appellants that error was thus committed but, if there was, the error would be harmless, for the jury answered the question as appellants wished the court to answer it. And if the court had answered as appellants requested, the jury would still have to make the comparison of causal negligence between the parties.”

In the present case, it could not be said, after viewing the evidence as a whole, that Mrs. Moritz was negligent in any respect as a matter of law. However, it is not necessary to discuss the facts in detail because even if she was negligent, respondents were not harmed by the trial court’s failure to so find since the jury ultimately found her 20 percent causally negligent.

Use of Ultimate-Fact Verdict.

Respondents maintain that they were prejudiced by the finding of negligence on Erickson’s part since the jury was unduly influenced by this determination when apportioning negligence between the parties. It is true, as the court recognized in Niedbalski v. Cuchna that:

“. . . because of respect for the trial judge’s experience and knowledge of the law, and confidence in his impartiality, a jury may give more weight to a finding made by the judge than to a similar finding which it makes for itself. It is possible for the same reason that when it reaches the comparison question, it may give disproportionally greater importance to negligence found by the judge than to negligence found by the jury. We suppose there might be cases where on review it so clearly appears from the circumstances that this must have happened, that" a'new trial should be had in the interest of justice.”

But the court continued:

“We decline, however, to adopt a rule based on a premise that a jury attributes disproportionate importance to negligence found by the judge in all, or a substantial number of the cases in which findings are made as a matter of law.”

That Erickson was found to be 80 percent negligent does not of itself establish that the jury was swayed. It is not at all surprising that the one who runs into the rear of another automobile is found to be much more at fault than the other driver. To conclude that a jury has placed improper weight on a finding by the trial court, it must appear from all the facts, and the record taken as a whole, that such influence could be the only explanation for the negligence apportionment. There is nothing in the present case to indicate that the finding had any effect on the jury whatsoever.

It is true that the jury was not instructed with respect to the comparison question “cautioning the jury not to give greater or lesser importance or weight to the finding of the court that a party was negligent than to a similar finding made by the jury.” But respondents did not request such an instruction and thus cannot complain about the failure to give it.

Respondents assert that when one party is found negligent as a matter of law while the other is not, the negligent party is prejudiced unless the case is submitted to the jury on the detailed form of special verdict. Respondents contend that otherwise the jury could be led to believe that the party is necessarily negligent in all respects — i.e., lookout, speed, management and control, etc., while in fact there is no negligence in regard to each, and that this thus influences their negligence comparison. No authority is cited to support this proposition. If this contention is correct, the use of the omnibus form of verdict will be greatly restricted.

Although the trial court found Erickson negligent as a matter of law it clearly limited that finding to Erickson’s speed and further instructed the jury on other aspects of Erickson’s possible negligence, namely, lookout, management and control. Under these circumstances, respondents were not prejudiced by the ultimate-fact form of special verdict.

Recovery for Personal Injuries.

The jury awarded Mrs. Moritz $6,500 for her personal injuries. The trial judge, after ruling out the possibility of any error occurring on the trial and any passion or prejudice on the part of the jury, decided that the award was “excessive.” He gave no reasons or explanation for this conclusion. Pursuant to Powers v. Allstate Ins. Co. he found that $3,500 was “fair and reasonable” compensation for her injuries.

This is another instance similar to those in which we have been asked very recently to review (1) a trial court’s determination that a jury award for personal injuries is excessive, but not caused by passion, or prejudice, and is not the result of error occurring during the trial, and (2) the sum fixed as reasonable by the trial court under Powers allowing the plaintiff an option of a new trial which he can avoid by remitting the excess above the amount which the court considers reasonable and taking judgment based on that reduced amount.

The crucial question to be first resolved is whether the trial court here erred in finding that the $6,500 award for plaintiff’s personal injuries was excessive. Several criteria have been established to guide a trial court’s review of a jury verdict.

1. “The problem of achieving fairness in assessing damages for personal injury is fraught with difficulty. Theoretical nicety is impossible. Under our judicial system, we rely primarily upon the good sense of jurors to determine the amount of money which will compensate an individual for whatever loss of well-being he has suffered as a result of injury.”

2. “In actions sounding in damages merely, where the law furnishes no legal rule for measuring them, the amount to be awarded rests largely in the discretion of the jury, and with their verdict the courts are reluctant to interfere.”

3. “A jury may mistakenly assume (without supporting evidence) that there have been, or will be certain effects from an injury or fix compensatierr'for sufficiently proved effects of injury at a figure which is beyond the range of reasonably debatable amounts. In a case where it is clear to the court that the amount awarded must necessarily reflect an allowance for the effects of injury not sufficiently proved or reflect a rate of compensation which is beyond reason, the court will declare the damages excessive. Where the question is a close one, it should be resolved in favor of the verdict.”

4. “In considering whether the jury’s appraisal of damages for pain, suffering, and disability is excessive, we must of course view the evidence in the light most favorable to plaintiff.”

“The trial court, however, is not required to search out one or several isolated pieces of testimony, which standing alone might sustain the damages found by the jury, but rather must review all the evidence bearing on damages and then, viewed reasonably as a whole, consider the same in the light most favorable to the plaintiff.”

5. “In analyzing the testimony as to the existence of any permanency of the injury or the likelihood that the injured person will endure future pain and suffering before recovery may be allowed therefor, there should be competent objective medical findings and the unsupported subjective statements of the injured party are not sufficient.”

6. “. . . a comparison with other verdicts at best can only be an imperfect analogy affording some guidelines to the solution but not necessarily determining the result.”

In addition to the above rules for reviewing personal-injury verdicts there is a further rule that is applied where the supreme court is asked to review a determination made by a trial court that a verdict is excessive. That rule is:

“Where a trial judge has reviewed all of the evidence and has found a jury verdict awarding damages to be excessive and has fixed a reduced amount therefor, and has determined that there should be a new trial on damages unless the plaintiff takes his option for a judgment on the reduced amount, this court will reverse his directions ‘only if we find an abuse of discretion on the part of the trial court.’ ”

This rule was amplified in Boodry v. Byrne, where it was stated :

“On appeal from a determination by the trial court that the found damages were excessive, this court will not find an abuse of discretion if there exists a reasonable basis for the trial court’s determination after resolving any direct conflicts in the testimony in favor of plaintiff.”

In applying these rules to the instant case we are handicapped considerably by the complete absence of any statement by the trial court of its reasons for its determination that the jury verdict of $6,500 for Mrs. Moritz’s personal injuries is excessive. There is no analysis of the evidence and the trial court has not given the parties or this court the benefit of his observations bearing in mind that he not only sees the parties and other witnesses but hears their testimony. We can only read from the transcript.

“Because of the advantage of personal observation enjoyed by the trial judge, the rule has been evolved that where a trial court determines that damages are excessive, and orders a new trial for that reason, his order will be reversed and directions given by this court to enter judgment on the verdict only if we find an abuse of discretion on the part of the trial court.”

A trial court reviewing a personal-injury jury verdict and finding such a verdict excessive should state its reasons for its determination. In the absence of such an analysis this court on appeal must, as here, review the entire record as a matter of first impression and ascertain whether, in its judgment, the verdict is excessive. In so doing, this court, of course, applies the same criteria for determining whether or not a verdict is excessive as govern review of the verdict by the trial court in the first instance.

At the time of the trial, Mrs. Moritz was a widow, about sixty-eight years old, and had a life expectancy of 9.47 years. She was thrown against the left side of her automobile. She was able to step out of her car, talk to Erickson and then drive her car home unassisted. That night she noticed soreness in her neck, back, and left leg. She saw her physician, Dr. Milsen, for the first time two days later, and complained of pain in her neck, head, back, chest, and left leg. She was given medicine and advised to apply heat. After seeing Dr. Milsen four times, her pains persisted and she was hospitalized on December 16th for a week. During that time she was examined by Dr. Albert Freedman, a specialist in orthopedics and surgery. X rays were taken. She visited Dr. Milsen about seven times through May 25, 1961, and did not see him again until July 11, 1963, just before the trial. Each time she had generally the same complaints as she had on the first occasion, and in addition, also mentioned experiencing headaches and dizziness.

As a result of his examinations, Dr. Milsen observed objective symptoms of ecchymosis (superficial bleeding) of the left hip, and muscle spasms in the lower lumbar area, over the cervical spine, and in the back of the neck. The X rays taken in December of 1960, disclosed that Mrs. Moritz had an arthritic condition and that the accident had caused a decrease of a normal cervical lordosis (flattening out of the normal forward curve of the neck). Both doctors testified that the arthritis was a pre-existing condition and that the accident did not cause any boney change. The doctors concluded from their examination and Mrs. Moritz’s complaints that the accident aggravated or “lit up” the preexisting arthritic condition.

On July 11, 1963, on her last trip to Dr. Milsen before the trial, Mrs. Moritz complained of pain in the back, neck, head, left knee, and tenderness in the back. She claimed that her movements were restricted, particularly bending. Any limitation of motion was not specifically described. Dr. Milsen found some spasm in the lumbar area and the cervical spine.

Dr. Freedman also took X rays in July of 1963, the only other time he examined Mrs. Moritz. These X rays showed that the neck curve was practically normal and that there had been no marked change in the arthritic condition since the last X rays were taken in December of 1960. Dr. Freedman testified that at the time of the second X ray Mrs. Moritz actually “had a lot less arthritis than would be normal in a woman of sixty-eight.” Dr. Freedman felt that the flare-up of the arthritic condition was “rather permanent in nature” while Dr. Milsen thought that the “chances” were that it was permanent. No percentage finding of permanent disability was made by either doctor.

Prior to the accident, Mrs. Moritz had no back problems and was able to do all her own housework and work a garden. She testified that after the collision she was unable to do all of her housework and it is undisputed that she hired two women to help her. However, the evidence is unclear as to exactly how much Mrs. Moritz was curtailed in her activity and as to what phase of the housework she was not able to perform. Outside of a cloth belt which she wore six weeks before discarding because she “was starting to get better,” the only other treatment prescribed by either doctor was rest, heat, and medication. She was never placed in traction, never required physical therapy, and outside of her stint in the hospital, was not confined to bed. She did not suffer any fractures, or severe cuts.

The evidence taken as a whole and looked at most favorably to the plaintiff, does not support the jury verdict of $6,500 for the plaintiff’s personal injuries.

In essence the evidence establishes that the plaintiff, sixty-eight years of age, complains three years after the accident of a worsening of a pre-existing arthritic condition; that there has been no boney change in this period; that despite the “flare-up” of arthritis, her condition is still not as severe as is normal in someone her age; that there was a lack of hospitalization or confinement to bed except for a period of examination; that it is unclear exactly to what extent her activities have been curtailed..

The verdict is one of those relatively rare cases where the sum awarded by the jury is “beyond the range of reasonable amounts” and is excessive. Although the verdict is excessive the $3,500 amount fixed as reasonable by the trial court is within the range of reasonable amounts and his finding to this effect must be affirmed.

Recovery for Nursing and Domestic Services.

The jury awarded appellant $1,500 for nursing and domestic services she required as a result of the accident. On respondents’ motion after verdict, the trial court struck this answer and disallowed any recovery whatsoever.

There is no question but that one who is injured and requires domestic and nursing services is entitled to recover for the same “what is customarily charged for similar work” and to the extent that there is proof that establishes this item of damages to a reasonable certainty.

On the record Mrs. Moritz did not sustain her burden of proof on this item of damages. There is absolutely no evidence of the customary charges for this kind of domestic work. Ann Bennett was not even called to testify, and Rose Kroll, who did testify, was never asked about the usual going rate for her services.

Even assuming that the customary charge was proved, the evidence was still insufficient to show the amount of time actually put in by the two women. Ann Bennett worked for Mrs. Moritz during a seven-month period. When asked how many days Ann Bennett had worked, appellant replied “Oh, I don’t know. She worked so long, she was there different days.” The most-concrete testimony of when she came to the house was at best confusing. Mrs. Moritz testified that she came “sometimes every other day,” “sometimes three or four days” a week, and “sometimes couple hours every day, coming.”

Rose Kroll worked for Mrs. Moritz for about two years. Appellant said that she “comes and goes.” Rose Kroll, herself, claimed that she worked “[o]ff and on . . . sometimes twice a week, three times a week, you know. Whenever she needed me, something she couldn’t do.” Thus there was a complete failure to give even a reasonable estimate of the amount of time the two women actually worked for Mrs. Moritz.

The testimony regarding the specific tasks the two women performed for Mrs. Moritz was even more vague. There was conflict in the evidence as to how much each woman had been paid. No proof of a total payment was introduced. Rose Kroll said that she received “six, five, seven dollars” while Mrs. Moritz claimed she was paid ten or fifteen dollars a week.

While appellant clearly was entitled to some compensation for the household services she required as a result of the accident, the record demonstrates that the damages were not proved with any reasonable certainty. When damages are susceptible of precise proof or of estimation by someone having knowledge, the proof must be adduced in order to sustain the burden of showing the expenses. This appellant failed to do, and since the trial court is not permitted to determine the value of personal services, there was no error in disallowing the jury award.

The trial court’s order gave appellant Moritz judgment for the reduced award unless within twenty days she elected to accept an option of a new trial on damages only. This is the reverse of the procedure recommended in Lucas v. State Farm Mut. Automobile Ins. Co. Mrs. Moritz should actually have been given the option to receive a new trial or take the reduced amount of the award. Accordingly, the judgment should be modified so as to permit the plaintiff an option to receive a new trial on all items of damages, including possible recovery for nursing and domestic services, or to take judgment including items of damage not involved on this appeal and also based on the $3,500 sum fixed by the trial court for personal injuries, which sum we have affirmed.

By the Court. — Judgment modified to give plaintiff an option to receive a new trial on all items of damages, or within twenty days of remittitur to take judgment in the sum fixed in the judgment from which this appeal was taken. Judgment, as modified, affirmed. No costs to be taxed on this appeal.

Gordon, J.

(dissenting). I would uphold the jury’s verdict insofar as it evaluated the plaintiff’s personal injuries at $6,500.

There was evidence presented by the plaintiff and by two qualified medical witnesses. Their testimony contained proof of significant pain and disability and warranted the assessment as to damages made by the jury. The proof showed that as a result of the accident the plaintiff sustained the following: Backache, headache, dizziness, chest pain, leg pain, and aggravation of arthritis. She was hospitalized for a week.

The trial court offered no explanation to justify its reduction in the verdict. I believe that the record in the instant case supports the jury’s conclusion as to the plaintiff’s damages for her personal injuries. The finding of the jury should not have been disturbed.

I am authorized to state that Mr. Justice Fairchild joins in this dissent.

       (1962), 17 Wis. (2d) 172, 176, 115 N. W. (2d) 758.

       (1961), 13 Wis. (2d) 308, 313, 108 N. W. (2d) 576. See also Field v. Vinograd (1960), 10 Wis. (2d) 500, 103 N. W. (2d) 671.

        Niedbalski v. Cuchna, supra, footnote 2, at page 314.

        Niedbalski v. Cuchna, supra, footnote 2, at page 313. Wis J I-Civil, Part II, 1595.

       (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393.

        Olson v. Siordia (1964), 25 Wis. (2d) 274, 130 N. W. (2d) 827; Baumgarten v. Jones (1965), 26 Wis. (2d) 703, 133 N. W. (2d) 346.

         Powers v. Allstate Ins. Co., supra, footnote 5. Spleas v. Milwaukee & Suburban Transport Corp. (1963), 21 Wis. (2d) 635, 646, 124 N. W. (2d) 593, modified the Powers rule so as to apply the rule even where there is prejudicial error committed on the trial, but where such error is related directly to damages and where any prejudice affecting the jury verdict can be accommodated by applying the Powers rule.

        Makowski v. Ehlenbach (1960), 11 Wis. (2d) 38, 41, 103 N. W. (2d) 907; Olson v. Siordia, supra, footnote 6, at page 283.

       15 Am. Jur., Damages, p. 621, sec. 205; Bethke v. Duwe (1950), 256 Wis. 378, 384, 41 N. W. (2d) 277; Makowski v. Ehlenbach, supra, footnote 8, at page 42; Olson v. Siordia, supra, footnote 6, at page 283; see Kablitz v. Hoeft (1964), 25 Wis. (2d) 518, 525, 131 N. W. (2d) 346.

        Makowski v. Ehlenbach, supra, footnote 8, at page 42; Olson v. Siordia, supra, footnote 6, at page 284.

        Kincannon v. National Indemnity Co. (1958), 5 Wis. (2d) 231, 233, 92 N. W. (2d) 884; Boodry v. Byrne (1964), 22 Wis. (2d) 585, 126 N. W. (2d) 503; Olson v. Siordia, supra, footnote 6.

        Boodry v. Byrne, supra, footnote 11, at page 589; Olson v. Siordia, supra, footnote 6, at page 284.

         Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis. (2d) 568, 572, 117 N. W. (2d) 660; Diemel v. Weirich (1953), 264 Wis. 265, 58 N. W. (2d) 651.

        Springen v. Ager Plumbing & Heating, Inc. (1963), 19 Wis. (2d) 487, 493, 120 N. W. (2d) 692.

        Lucas v. State Farm Mut. Automobile Ins. Co., supra, footnote 13, at page 571, and cases cited therein.

        Boodry v. Byrne, supra, footnote 11, at page 589.

        Makowski v. Ehlenbach, supra, footnote 8, at page 44, and cases cited therein.

       “While we recognize that the jury’s appraisal of damages should not be disturbed in the absence of error, it is nevertheless our duty to evaluate the testimony, and if the award is excessive even when viewed in the light most favorable to the plaintiff, it is our responsibility to so find.” Spleas v. Milwaukee & Suburban Transport Corp., supra, footnote 7, at page 645, and cases cited therein.

         Hommel v. Badger State Investment Co. (1917), 166 Wis. 235, 245, 165 N. W. 20.

         Maslow Cooperage Corp. v. Weeks Pickle Co. (1955), 270 Wis. 179, 70 N. W. (2d) 577.

        Will of Gudde (1951), 260 Wis. 79, 49 N. W. (2d) 906.

        Supra, footnote 13.


source: Caselaw Access Project

author: Currie, C. J.

license: Public Domain

text:
    Walworth County and others, Respondents, v. City of Elkhorn, Appellant.

      February 5

    March 2, 1965.

      For the appellant there was a brief by Lyman K. Arnold, city attorney, and by Robert D. Sundby of Madison, special counsel, attorneys, and Immell, Herró, Buehner, DeWitt & Sundby of Madison, of counsel, and oral argument by Robert D. Sundby.

    For the respondent Walworth county there was a brief and oral argument by Philip B. Morrissy, corporation counsel.
    For the respondent town of Sugar Creek there was a brief by Godfrey, Godfrey, Neshek & Conway of Elkhorn, and oral argument by Milton E. Neshek and Alfred L. Godfrey.

    For the respondent Edwin Runge there was a brief and oral argument by Charles E. Wilson of Elkhorn.
    A brief amicus curiae was filed by Julian Bradbury of Madison for the League of Wisconsin Municipalities.
   Currie, C. J.

These two questions are raised by this appeal:

(1) Does sec. 62.23 (2), Stats., render void an interim extraterritorial zoning ordinance adopted by the city without the consent of the county board of supervisors ?

(2) Is the ordinance void on the ground that it deprives plaintiff Runge of valuable property rights, or that it is arbitrary and capricious, in contravention of the due-process or the equal-protection-of-the-laws clauses of the Fourteenth amendment?

Application of sec. 62.23 (2), Stats.

Sec. 62.23 (7a), Stats., which provides for extraterritorial zoning by cities and villages, was enacted as ch. 241, Laws of 1963. The extent of extraterritorial zoning jurisdiction conferred by this statute upon fourth-class cities such as Elkhorn is limited to the unincorporated area lying within one and one-half miles of the city’s corporate limits. We quote the following material provisions of this statute:

“(7a) Extraterritorial Zoning. The governing body of any city which has created a city plan commission under sub. (1) and has adopted a zoning ordinance under sub. (7) may exercise extraterritorial zoning power as set forth in this subsection. Insofar as applicable the provisions of sub. (7) (a), (b), (c), (ea) and (h) shall apply to extraterritorial zoning ordinances enacted under this subsection. This subsection shall also apply to the governing body of any village. . . .
“(b) The governing body may enact, without referring the matter to the plan commission, an interim zoning ordinance to preserve existing zoning or uses in all or part of the extraterritorial zoning jurisdiction while the comprehensive zoning plan is being prepared. Such ordinance may be enacted as is an ordinary ordinance but shall be effective for no longer than 2 years after its enactment, unless extended as provided in this paragraph.”

The crucial question is whether a city such as Elkhorn can enact a valid interim extraterritorial zoning ordinance freezing existing uses for two years, as authorized by par. (b) of sec. 62.23 (7a), Stats., without obtaining the consent thereto of the county board of supervisors. The answer to this question is dependent on whether or not the following provision of sec. 62.23 (2) is applicable to such interim zoning ordinances:

“It shall be the function and duty of the [city plan] commission to make and adopt a master plan- for the physical development of the municipality, including any areas outside of its boundaries which, in the commission’s judgment bear relation to the development of the municipality provided, however, that in any county where a regional planning department has been established, areas outside the boundaries of a municipality may not be included in the master plan without the consent of the county board of supervisors.”

For the purposes of this appeal we shall assume, without deciding, that Walworth county has a regional planning department.

We deem it to be highly significant that ch. 241, Laws of 1963, in creating sec. 62.23 (7a), Stats., specifically enumerated what prior subdivisions of sec. 62.23 appertaining to zoning are to be applicable to this new act. Sub. (2) of sec. 62.23 is not included among these prior-enumerated subdivisions of such statute. Under the canon of statutory construction, expressio unius est exclusio alterius, it was not the legislative intent that the aforequoted restrictive provision of sec. 62.23 (2) should be applicable to interim extraterritorial zoning ordinances enacted under sec. 62.23 (7a) (b).

There is an additional reason why we conclude that the restriction of sec. 62.23 (2), Stats., is not applicable to the interim extraterritorial zoning ordinances such as that enacted by defendant. By its express terms, sec. 62.23 (2) would appear to be only applicable to master zoning plans initiated by a city plan commission. Viewing the wording of this subsection most favorably from the standpoint of respondent plaintiffs, the subsection’s application to action taken by a city council under sec. 62.23 (7a) is ambiguous. This is a proper case, therefore, in which to look to the statutory history to ascertain the legislative intent. State ex rel. Tilkens v. Board of Trustees (1948), 253 Wis. 371, 374, 34 N. W. (2d) 248.

Bill No. 3, A., creating sec. 62.23 (7a), Stats., was introduced in the assembly during the 1963 legislative session by the legislative council and was sponsored by it. In Vol. Ill, p. 137, of the 1963 report of the legislative council appears the following :

“Opponents of the bill believed that enactment of LRL 131 [Bill No. 3, A.] would be especially disruptive in those counties where the county zoning ordinance has been approved by all or most of the towns.
“Those persons favoring the legislation disagreed with this assumption and pointed out that an integral feature of the bill is that the towns affected will have a substantial voice in the preparation of the ordinance. This will put a town in a position to make a solid case for preservation of existing uses, if the town feels that these uses are the most appropriate for that particular town. The proponents of the bill also pointed out that it offers another protection to the counties and towns. That is, the bill provides for a 2-year land use ‘freeze’ pending the development of the ordinance. Whatever land uses the county or town had designated by ordinance, or usage, would be effective for the 2-year period. It was believed that these features of the bill would result in minimal disruption to the towns affected and would still permit the development of a comprehensive zoning ordinance which would be of maximum long-range benefit to the area.”

This would seem to clearly indicate that it was contemplated by the framers of the bill that a city would be able to exercise extraterritorial zoning under sec. 62.23 (7a), Stats., without the consent of the county. The legislative council probably concluded that the objective of the statute to give cities and villages some control over the haphazard development of adjacent areas might be vitiated if the final decision in the matter were to rest with county boards.

We conclude that the instant interim extraterritorial zoning ordinance enacted by defendant city is not void and ineffective because no consent thereto was obtained from the county board of supervisors.

Constitutionality of Ordinance.

Appellants have cited us to no case which directly holds that extraterritorial zoning violates the equal-protection-of-the-laws and due-process clauses of the Fourteenth amendment. Zoning ordinances have commonly been sustained on the theory that they constitute an exercise of the police power. State ex rel. Saveland Park Holding Corp. v. Wieland (1955), 269 Wis. 262, 266, 69 N. W. (2d) 217. The constitutionality of extraterritorial zoning was recently upheld by the Nebraska court in Schlientz v. North Platte (1961), 172 Neb. 477, 492, 110 N. W. (2d) 58, wherein the court stated:

“The Legislature may, and often does, expressly or by implication, grant to municipal corporations the right to exercise police power beyond and within a prescribed distance of the municipal limits. See, City Transp. Co., Inc. v. Pharr, 186 Tenn. 217, 209 S. W. (2d) 15; Murray v. City of Roanoke, 192 Va. 321, 64 S. E. (2d) 804 .. .
“They [the Nebraska statutes authorizing cities to zone extraterritorially] are enactments under the police power of the state, and at most a partial or quasi extension of corporate limits.”

Our rapidly expanding population and the tendency of the greater portion of our people to live in urban areas cause most cities from time to time to extend their city limits into adjacent areas by annexation. Usually such annexations are preceded by the building of homes in adjacent agricultural areas by persons whose employment is in the city. Many of these adjacent areas are often spoiled as future first-class residence districts because of objectionable commercial or industrial developments that have taken place in the absence of zoning. These undoubtedly are the reasons which prompted the legislature to enact sec. 62.23 (7a), Stats. We hold that this act providing for extraterritorial zoning is a reasonable and valid exercise of the police power.

We now turn to the reasonableness of the freeze of existing use districts by the interim ordinance. There is a division of authority in this country as to the validity of interim zoning ordinances. See 1 Yokley, Zoning Law and Practice (2d ed.), pp. 164, et seq., secs. 80 and 81. Cases which have upheld the validity of interim or temporary zoning ordinances are Miller v. Board of Public Works (1925), 195 Cal. 477, 234 Pac. 381, 38 A. L. R. 1479; Mang v. County of Santa Barbara (1960), 182 Cal. App. (2d) 93, 5 Cal. Rptr. 724; Fowler v. Obier (1928), 224 Ky. 742, 7 S. W. (2d) 219; Dallas v. Meserole (Tex. Civ. App. 1941), 155 S. W. (2d) 1019; Dowham v. City Council of Alexandria (D. C. Va. 1932), 58 Fed. (2d) 784. See also State ex rel. Davis Investment Co. v. Columbus (1963), 175 Ohio St. 337, 194 N. E. (2d) 859; Anno. 136 A. L. R. 844; 8 McQuillin, Mun. Corp. (3d ed. Rev.), p. 143, sec. 25.64. Yokley expresses the view that the greater weight of authority sustains the right of a municipality to enact an interim zoning ordinance, provided there is the proper constitutional or statutory authorization. 1 Yokley, Zoning Law and Practice (2d ed.), p. 183, sec. 82.

We can perceive no constitutional objection to interim zoning when properly authorized by statute. It is common knowledge that the preparation of a proper comprehensive zoning ordinance often requires much study and time. The very pendency of the adoption of a comprehensive extraterritorial zoning ordinance might precipitate action on the part of property owners in the territory to be affected which would tend to frustrate the objective sought to be attained by the prospective ordinance.

The remaining question is whether the two-year freeze of existing uses is too long to be reasonable. We hold that it is not. Plaintiff Runge has not demonstrated any undue hardship that would result to him during such two-year period. There has been no showing that his property is unfit for the purpose for which presently zoned. The fact that he may be prevented during this two-year period from erecting and operating a liquor store is wholly insufficient to establish that the interim ordinance is arbitrary or capricious.

We determine that Ordinance No. 349 enacted by defendant city does not violate the equal-protection-of-the-laws and due-process clauses of the Fourteenth amendment.

By the Court. — Judgment reversed, and cause remanded with instructions to enter a declaratory judgment consistent with this opinion adjudicating that Ordinance No. 349 is a valid and constitutional enactment and that it precludes the erection or operation of a liquor store by plaintiff Runge on his property.


author: Per Curiam.

text:
    State ex rel. Kline, Petitioner, v. Burke, Warden, Respondent.

      March 4, 1965.

      Orville S. Luckenbach of Shawano for the petitioner.

      George Thompson, attorney general, and William A. Plats, assistant attorney general, for the respondent.
   Per Curiam.

Conrad C. Kline petitioned this court for a writ of habeas corpus dated March 2, 1964. We determined that the petitioner had made an arguably meritorious claim. The respondent was ordered to show cause why a writ of habeas corpus should not issue directing the release of the petitioner. A return was made by the respondent through the attorney general’s office. We found that the petition and the return raised issues of fact. These issues were submitted to the circuit court for the county in which the crime was committed — circuit court for Shawano county, Andrew W. Parnell, circuit judge. At the same time, we appointed Orville S. Luckenbach of Shawano to represent Kline in this matter, since the petitioner was found to be indigent. Mr. Platz, of the attorney general’s office, moved to confirm the findings of fact and the petitioner’s attorney objected to the findings of fact.

Kline entered a plea of guilty without benefit of counsel and was sentenced on September 13, 1956, for an indeterminate term of fifteen years for the crime of armed robbery. The petition for the writ of habeas corpus was based on the following alleged grounds:

1. The holding of the petitioner incommunicado vitiated the conviction and sentence.

2. The petitioner was deprived of his right to counsel.

3. The petitioner was denied the privilege against self-incrimination.

4. The petitioner was denied the right to face his accusers.

5. The petitioner was denied the right to a jury trial.

Judge Parnell made the following findings of fact: KTine was not held incommunicado but had access to a phone and could have consulted with an attorney of his choice by asking the sheriff or anyone acting under him; the district attorney did not advise Kline that he should not ask for an attorney, nor did he threaten Kline with the maximum penalty of thirty years if he asked the court to appoint an attorney for him; petitioner’s waiver of counsel and plea of guilty were not induced by any threats or statement made by the district attorney; Kline’s waiver of counsel and his plea of guilty were “freely, voluntarily and understanding^ made without threat, promise or intimidation;” and Kline was of sound mind and understood the nature of the charge lodged against him.

The record discloses that petitioner and his accomplices were arrested in Upper Michigan and were transported from there to the county jail at Shawano. They were brought before a magistrate and Kline waived preliminary hearing. Kline testified as follows: He was questioned in jail by then District Attorney Eberlein. Kline stated he would make no statement until he was provided with an attorney. Eberlein said he would see about providing an attorney. Later Kline did give and sign a statement. [This statement admitted guilt.] Kline also made a request both to the jailer and to an officer in uniform for an attorney which produced no results. After about two weeks in jail, Kline was marched from the jail across the lawn to the nearby courthouse for the court hearing of September 13, 1956. On the way to the courtroom he conversed with Eberlein and Eberlein then told him he was guilty of the charge, “and that if we cost the county the cost of hiring us an attorney and of a trial that he was going to see that we got thirty years.” Scared by Eberlein’s threat, Kline pleaded guilty before Judge Dillett.

The record discloses that on September 13, 1956, Kline was twenty-three years of age; he had had an eighth-grade education plus the equivalent of three years of high school received while an inmate of an industrial school; and had served a prior sentence in a Pennsylvania penal institution. He appears to be a man of intelligence because he testified that he had drafted his own petition for habeas corpus. It is well drafted and would do credit to a lawyer draftsman. Judge Parnell went out of his way to compliment Kline on having drafted such a good petition.

Eberlein testified that he could not recall Kline or any conversation had with him. However, he did testify:

“I would say this: I never did, in the ten years as District Attorney, coerce or influence any person against getting an attorney; and very frequently I went out of my way, where I felt the man did not fully understand or appreciate what the charge was, and I even recommended and suggested that they get an attorney.”

The sheriff in office at the time testified that Kline was permitted to talk to other prisoners; that it was the practice in the jail to permit prisoners to use the phone to call an attorney if they requested it; and that such use of the phone was made available without cost to the prisoner.

The transcript of the hearing before Judge Dillett on September 13, 1956, shows that before accepting Kline’s plea of guilty the judge advised Kline of his right to counsel at county expense, and that Kline affirmatively waived such right of counsel. Kline, at the hearing before Judge Parnell, admitted he had no defense to the charge but believed an attorney could have aided him by securing a lighter sentence, such as having him plead guilty to a lesser charge.

Kline’s plea of guilty renders moot his claims with respect to his alleged right to face his accusers and to a jury trial.

On a review of the testimony and record we must accept the findings made by Judge Parnell. The purpose of referral to the circuit court was to decide issues of fact, which includes passing on credibility. Judge Parnell saw fit to believe former district attorney Eberlein and to disbelieve petitioner. Although the evidence was conflicting, the findings are not against the great weight and clear preponderance of the evidence. See State ex rel. Casper v. Burke, supra.

Petitioner cites Escobedo v. Illinois (1964), 378 U. S. 478, 84 Sup. Ct. 1758, 12 L. Ed. (2d) 977, in support of his contention that he was denied right to counsel in violation of his constitutional rights. Escobedo, however, had to do with the receipt into evidence of admissions made before trial to police officers. For an analysis of Escobedo, see opinion on rehearing, Browne v. State (1964), 24 Wis. (2d) 491, 511f, 511g, 129 N. W. (2d) 175, 131 N. W. (2d) 169. Kline, by his plea of guilty, waived the right to litigate the issue of the voluntariness and validity of the signed statement obtained by the district attorney from him while incarcerated in the county jail. See Hawkins v. State (1965), 26 Wis. (2d) 443, 132 N. W. (2d) 545. No claim is made by petitioner that he was induced to enter his plea of guilty because of this statement. He testified that the sole reason for such plea was the alleged threat made by the district attorney.

Petitioner further argues that the suggested subjects of inquiry and comments recommended in State ex rel. Burnett v. Burke (1964), 22 Wis. (2d) 486, 126 N. W. (2d) 91, to be pursued by a trial court in accepting a waiver of counsel and a plea of guilty, were not followed by Judge Dillett when petitioner waived counsel and pleaded guilty. However, the Burnett Case was decided almost eight years after petitioner Kline was tried. Merely because all the precautionary steps recommended in Burnett may not have been followed does not render constitutionally tainted an acceptance of waiver of counsel and a plea of guilty. Here, because of Kline’s high intelligence, prior criminal record, and the fact that he was advised by Judge Dillett of his right to counsel at public expense, there exists ample evidence to sustain Judge Parnell’s finding that Kline’s waiver of counsel and his plea of guilty were freely, voluntarily, and understandingly made.

The findings of the circuit court are confirmed and the petition for habeas corpus is denied.

       With respect to procedure in habeas corpus as an original action, see In re Exercise of Original Jurisdiction (1930), 201 Wis. 123, 129, 229 N. W. 643; State ex rel. Doxtater v. Murphy (1946), 248 Wis. 593, 598, 22 N. W. (2d) 685; and State ex rel. Casper v. Burke (1959), 7 Wis. (2d) 673, 678, 97 N. W. (2d) 703.

       Sec. 251.12, Stats., permits us to send issues of fact to a circuit court for determination.


author: Gordon, J.

text:
    Rice, Plaintiff, v. Gruetzmacher and others, Defendants and Respondents: Maryland Casualty Company, Defendant and Appellant.

      February 1

    March 5, 1965.

      For the appellant there was a brief by Moore & Moore of Milwaukee, and oral argument by Raymond J. Moore.

    For the respondents there was a brief by Arnold, Murray & O’Neill of Milwaukee, and oral argument by Suel 0. Arnold.

   Gordon, J.

The problem before us is whether a forklift is a motor vehicle under the quoted direct-action statutes. If it is, its insurer can be named as a party defendant in this lawsuit. The trial court concluded that there were questions of fact surrounding such determination and, therefore, denied the insurer’s request for summary judgment. The Wisconsin statutes contain various definitions of “motor vehicle” and “vehicle:”

“340.01 (35) 'Motor vehicle’ means a vehicle which is self-propelled, including a trackless trolley bus.”

“340.01 (74) ‘Vehicle’ means every device in, upon or by which any person or property is or may be transported or drawn upon a highway, except railroad trains.” (Emphasis added.)

“344.01 (2) (b) ‘Motor vehicle’ means a self-propelled vehicle and also includes trailers and semitrailers designed for use with such vehicles, except that ‘motor vehicle’ does not include farm tractors, well drillers or road machinery.”

While both of the direct-action statutes refer to motor vehicles, neither contains an express reference to the use being upon a highway. However, there are several decisions of this court which suggest that the words “motor vehicle” refer to a vehicle which is operated on a public highway.

In Snorek v. Boyle (1962), 18 Wis. (2d) 202, 118 N. W. (2d) 132, the issue was whether a farm tractor which was being operated on the highway constituted a motor vehicle under the direct-action statutes. The court in that case answered the question in the affirmative, stating, at page 208:

“We are confident that the legislature, in enacting this statute [sec. 204.30 (4)], was not concerned with the type of policy issued. Instead, it intended to provide direct liability if coverage was extended to a self-propelled vehicle operated upon the public highways.” (Emphasis added.)

The final paragraph of the opinion stated, at page 211:

“In view of the foregoing, we conclude that a farm tractor while being operated on the public highway is a ‘motor vehicle’ within the meaning of secs. 204.30 (4) and 260.11 (1), Stats.”

It should be noted that in the Snorek Case the court rejected the definition of motor vehicle that is contained in sec. 344.01 (2) (b), Stats., which is a part of the financial résponsibility section of the Wisconsin statutes; instead the court relied upon the broader definition contained in sec. 340.01 (35).

In Smedley v. Milwaukee Automobile Ins. Co. (1961), 12 Wis. (2d) 460, 107 N. W. (2d) 625, we held that a stationary truck upon which was mounted a hydraulic crane was not a motor vehicle within the meaning of the direct-action statutes. Said the court, at page 466:

“It is undoubtedly true if the unit were being driven on a public street for the purposes of locomotion, it would be considered a motor vehicle. ’ ’ (Emphasis added.)

The case of Connell v. Luck (1953), 264 Wis. 282, 58 N. W. (2d) 633, is somewhat analogous to the problem of the instant case. There a farmhand, while operating a tractor in the field, was injured when he fell against one of the driving wheels of the tractor which was not protected by a fender. Sec. 85.61, Stats. 1953 (now sec. 347.46 (1)), states:

“No vehicle of the tractor type shall be operated unless the driving wheels are protected by suitable fenders.”

The court pointed out that sec. 85.10 (1), Stats. 1953 (which is similar to sec. 340.01 (74)), uses the words “upon a public highway.” The court concluded that sec. 85.61 was a highway safety measure and, therefore, was not designed to cover the operation of a farm tractor in a hayfield.

The majority of the court interpret the Snorek and other cases above cited as recognizing a class of self-propelled land vehicles which are designed primarily for uses dissimilar to transporting or drawing persons or property upon a highway, and holding that a vehicle within that class, such as this forklift, is not a “motor vehicle” under the direct-action statutes unless being operated upon a highway at the time of accident. See sec. 340.01 (35) and (74), Stats.

Three members of this court, including the writer of this opinion, believe that the direct-action statutes are not ambiguous with regard to whether the ordinary or actual use of the vehicle is on or off the highway. In the view of the minority, since the legislature did not see fit to limit direct action to motor vehicles designed for highway use or operated on a highway, it is inappropriate for this court to superimpose this limitation thereon.

One other issue remains to be considered. The respondents have urged that Maryland Casualty Company did not make a sufficient showing of excusable neglect to warrant the trial court’s extending the time within which a motion for summary judgment could be brought. Their contention is that sec. 269.45 (2), Stats., which authorizes an extension of time, permits it only when the failure to act was the result of “excusable neglect.”

The record shows that the appellant’s plea in bar was dated April 11, 1963. The trial court’s decision to deny the plea in bar was made on January 13, 1964, and the supreme court’s order dismissing the appeal was dated June 17, 1964. Maryland Casualty Company’s notice of motion for summary judgment was dated June 30, 1964. Maryland Casualty Company’s counsel averred that the request for an extension of time was to enable the motion for summary judgment to be served on all the parties. In his memorandum decision, the trial judge stated that the court granted the motion and extended the time until August 31, 1964.

In support of their position, the respondents cite Shelby Mut. Ins. Co. v. Home Mut. Ins. Co. (1964), 25 Wis. (2d) 25, 130 N. W. (2d) 296, to establish that if a motion for summary judgment is made after the forty-day period provided for in sec. 270.635 (1), Stats., it is necessary to show that the failure to move in time was the result of excusable neglect. We observe, however, that in the Shelby Case counsel specifically opposed the granting of the extension on this ground, whereas in the case at bar there is nothing in the record to indicate that there was objection to the granting of the extension of time on any grounds. In the absence of a record showing such objection, we find no occasion for contradicting the trial court’s decision to grant the extension of time.

By the Court. — Order reversed, with instructions to enter judgment dismissing plaintiff’s complaint against Maryland Casualty Company.


author: Hallows, J.

text:
    City of Milwaukee, Plaintiff, v. Milwaukee County, Defendant. [Two Appeals.]

      February 2

    March 5, 1965.

      For the plaintiff there was a brief by John J. Fleming, city attorney, and John F. Kitske, assistant city attorney, and oral argument by Mr. Kitske.

    For the defendant there were briefs by Robert P. Russell, corporation counsel, and James J. Bonijas, assistant corporation counsel, and oral argument by Mr. Bonifas.

   Hallows, J.

In the construction of the statutory language the legislative intent should be sought from the language of the statute in relation to its scope, history, context, subject matter, and the object intended to be remedied or accomplished, Scanlon v. Menasha (1962), 16 Wis. (2d) 437, 114 N. W. (2d) 791, and when there are several statutes , relating to the same subject matter they should be read together and harmonized, if possible, Harris v. Halverson (1927), 192 Wis. 71, 211 N. W. 295. This appeal deals with three statutes enacted at different times relating to the same subject, the cost of keeping Milwaukee city prisoners in Milwaukee county penal institutions.

Milwaukee, like other cities, has for many years exercised the power to enact municipal ordinances and to provide monetary forfeiture or fines for their violation and for failure to pay the forfeiture or fine to provide for imprisonment until such forfeiture is paid but not exceeding a designated number of days of confinement. The city of Milwaukee does not own or operate any penal institution in which to keep its prisoners after judgment for failure to pay forfeitures. For many years under various statutory authority such prisoners have been kept either in the Milwaukee county jail or in its house of correction.

County jails were first required to be built and maintained at county expense by ch. 10, sec. 16, of the revised statutes of 1849. Ch. 153, sec. 2, of that statute provided “the expenses of keeping and maintaining” all prisoners were to be borne by the county from which the prisoner was taken. Milwaukee county was authorized by ch. 318, P. & L. Laws of 1855, to build a house of refuge, the predecessor of the house of correction, and sec. 6 of that chapter provided that the expenses of maintaining the institution including the cost of support of prisoners was to be paid by the county. The house of correction was established for the reformation and the employment of persons sentenced for confinement therein and includes the operation of a farm. A city prisoner in lieu of being committed to the Milwaukee county jail may under some circumstances be committed to the house of correction.

Prior to 1919 no statutory authority permitted Milwaukee county to charge the city of Milwaukee for the keep of city prisoners either in a county jail or in a house of correction. By ch. 351, Laws’ of 1919, sec. 56.18 (2) was created which provided that each city or village in Milwaukee county should pay $1.50 per week for each of its prisoners confined in the house of correction. Four years later by ch. 242, Laws of 1923, this section was amended to read substantially as it now does and requires each city or village in Milwaukee county to pay for the “actual and reasonable costs of maintenance” of its prisoners in the house of correction as determined by ordinance of-the county board. This section is a part of the chapter on prison labor and relates only to the prisoners in the Milwaukee county house of correction.

Shortly after the repeal of prohibition in 1933, sec. 176.43 (1), Stats., was created. This section, a part of the chapter on intoxicating liquors, authorized cities to prescribe regulations for the sale of intoxicating liquors by ordinance not in conflict with state laws and provided that when a person was committed to the county jail or house of correction for the violation of such ordinance, “his board shall be paid by the municipality where such violation was committed.” In 1953 sec. 66.12 (1) (b), now (c) was created by ch. 448, Laws of 1953. This section, a part of the chapter on municipal law, applied to all cities and villages and provided that prisoners confined in the county jail or in some other penal or correctional institution for the violation of a city or village ordinance, resolution or bylaw, “shall be kept at the expense of the city or village.” We thus have posed the question of whether the language referring to the keep of prisoners, “actual and reasonable costs of maintenance” in sec. 56.18 (2), “board” in sec. 176.43 (1), and “be kept at the expense of” in sec. 66.12 (1) (c) mean the same thing or carry different connotations and in either case, what meaning?

The dispute between the parties is not so much that these three statutes have radically different meanings taken separately as what they mean taken together. Chronologically, the language for imposing liability on the city for the actual and reasonable costs of maintaining city prisoners preceded the terms “his board” and “to be kept at the expense of.” We find no reason why “his board” used in connection with intoxicating-liquor violators logically should have any different content or be less restrictive than the actual and reasonable costs of maintenance; both apply to the same prisoner in the house of correction and necessarily must be construed to mean the same. This construction is supported by the historical use of the two phrases. Likewise, the phrase “be kept at the expense of” covers the same prisoner in the house of correction and must be construed the same as “actual and reasonable costs of maintenance” in view of the other sections existing prior in time. The phrase would seem not to be used as much as a measure of liability as a designation of a liability. However, we consider its use under both aspects because it applies to prisoners in the county jail as well as those in the house of correction.

Commencing in 1928 for the house of correction and in 1939 for the county jail, Milwaukee county established a weekly rate of $6 for prisoner keep. In 1955 the county established per diem charges based upon all accounting costs of operating and maintaining the house of correction and the county jail. These separate charges for each institution were determined annually in accordance with the operating costs for the penultimate year. The city was billed monthly and it paid these billings without protest until January 1, 1962.

The trial court in construing “actual and reasonable costs of maintenance,” “to be kept at the expense of,” and “board” held the language embraced only out-of-pocket expenses directly affecting prisoner keep and did not include, as claimed by the county, charges based on a cost-accounting share of salaries, heating, lighting, gas, water, insurance, supplies, capital construction, maintenance, and other items. These excluded charges included, among others, such items for the county jail as boiler insurance, general insurance, printing, stationery, charges made by other county departments for trucking, preparing, and packaging supplies furnished the jail, maintenance of a car assigned to the jail, household supplies, office supplies, athletic equipment used in the gymnasium by the sheriff’s deputies assigned to the jail, machinery and equipment, such as typewriters, adding machines, and jurors’ meals. In the itemization for the house of correction we find items including all salaries of employees, advertising of the sale of livestock, registration fees for livestock and veterinarian’s fees, various types of insurance for cars and trucks, postage, printing and stationery, repairs and maintenance to buildings, including the barns, the hog house, the bull house, 23 chicken coops, and the superintendent’s and farm superintendent’s residences, and many other accounts referring to the operation of the farm run by the institution and to the buildings. The question is whether such items, which are directly referable to the maintenance of either the buildings constituting the jail or the house of correction or to the operation thereof as a jail, are to be considered as actual and reasonable costs of maintaining or keeping the prisoners.

There is no prior case in Wisconsin construing the language of these three sections. There are cases construing related statutes which give some indication of the intent of the legislature in the use of the language under discussion. Historically, a county provided the jail as a building and the sheriff was in charge of operation and had custody of the prisoners. It was his duty to run a jail or place of safekeeping and he was reimbursed by the county for expenses as provided by the statutes.

In the early case of Hartwell v. Supervisors of Waukesha County (1877), 43 Wis. 311, the court held “the expense for maintaining” and “expenses for safekeeping” did not include the services or board of a deputy sheriff who acted as jailer so as to allow recovery therefor by the sheriff. The court considered the language “expenses for maintaining” to refer to the maintenance or necessary support but not personal services of a jailer or custodian. In Bell v. Fond du Lac County (1881), 53 Wis. 433, 434, 10 N. W. 522, the sheriff demanded $3.50 per week per prisoner from the county. The court held that the language in the statute, “ ‘all charges’ for maintaining convicts” and “ ‘the expense’ of maintaining” meant “what it would actually and necessarily cost the sheriff to furnish the board which he is required to furnish” and he was to be indemnified only for “actual charges or expense which he incurs in boarding or maintaining.”

In the first case directly involving the question of recovery by a county against a municipality it was held that a county was chargeable for the board and laundry of prisoners and for the fees for discharge and admittance, and these expenses of keeping a prisoner could be recovered by the sheriff. Nickell v. Waukesha County (1885), 62 Wis. 469, 22 N. W. 737. This case was followed in Waukesha County v. Village of Waukesha (1891), 78 Wis. 434, 47 N. W. 831. In Parsons v. Waukesha County (1892), 83 Wis. 288, 291, 53 N. W. 507, the court said “. . . 'the expenses for safekeeping’ in sec. 4947, R. S., and the exception in the act of 1881 of ‘compensation for keeping and maintaining prisoners in the common jail/ refer only to the same general subject, namely, the maintenance or necessary support and keeping of the prisoners.” Where a sheriff could not produce actual accounts and bills he could not recover since he was entitled only to actual expenses in maintaining the prisoners. Deissner v. Waukesha County (1897), 95 Wis. 588, 70 N. W. 668.

These cases involving sheriffs necessarily are restricted to expenses involved directly in feeding and caring for prisoners on a day-to-day basis, items which might be said to be consumed in the use. Naturally they did not include the type of expenses claimed by Milwaukee county because the sheriff had no right or duty to make such expenditures as those items refer directly to the building as a jail and only indirectly to the prisoners. The jail as a building and its equipment were furnished and maintained at the expense of the county and for the sheriff’s services as a custodian he received fees. This was well known when the legislature started to allocate costs between municipalities for the keep of their respective prisoners. Besides the sections under review, sec. 62.24 (2) (b), Stats., which does not apply to the city of Milwaukee by virtue of sec. 62.03, was created in 1935 and provided a city was liable for the keep of its prisoners in the county jail under the language “kept at expense of.” This section has been interpreted by the attorney general to mean out-of-pocket expenses for food, medical care, laundry and like items and could not include a cost-accounting share of salaries, heat, light, gas, water, insurance, supplies, and like items. 43 Op. Atty. Gen. (1954), 41; 46 Op. Atty. Gen. (1957), 71. These opinions by analogy are noteworthy.

Nowhere in the history of this problem or in any of the statutes can we find any intent on the part of the legislature to include in the cost against the city of Milwaukee the total accounting costs for operating a jail or house of correction as contended for by the county. In this respect the county’s argument must fail.

We note that the trial court rejected items 1, 2, and 3 for the county jail list relating to salaries and wages and insurance and social security thereon and the same items as item 1 in the list for the house of correction. Item 1 includes a chef, food supervisor, cooks and food-service workers as well as other personnel such as deputy sheriffs, matrons, administrative clerks, and typists. It seems to us that the cost of meals includes more than the cost of the raw food and includes the labor in preparing and serving food as a proper cost of maintenance. Doty v. Sauk County (1896), 93 Wis. 102, 67 N. W. 10. This item should be allowed in determining the per diem charges.

The county strenuously argues that its method of charging which permits all the accounting costs to be charged on a per diem basis is the only practical and equitable manner in which to determine maintenance because: (1) Such items constitute all maintenance costs, and (2) it is impossible to precisely determine costs attributable to each prisoner separately. We think it is fair and reasonable that a formula based upon the items allowed be used for each institution to determine the per diem cost of maintaining prisoners. Since this is an average per-day cost per prisoner, the county may apply this cost unit in full to the day of commitment and to the day of discharge. Any method of splitting a day is impractical and the result de minimis. The county also contends that because the incarceration of city prisoners is for the purpose of enforcing the payment of forfeitures and not as punishment for a crime, Milwaukee v. Johnson (1927), 192 Wis. 585, 213 N. W. 335, it should not be required to bear part of the cost of such revenue-producing activities. This argument is, as well as others, better addressed to the legislature than to this court as a reason for changing what appears to be the legislature’s intent. Inequitable results flowing from legislative enactments allocating the cost of governmental services between municipalities, even involving Milwaukee county, are not unknown, see Wauwatosa v. Milwaukee County (1963), 22 Wis. (2d) 184, 125 N. W. (2d) 386.

On its cross appeal the city of Milwaukee alleges the trial court was in error in holding it was estopped from claiming overpayments for the years 1956 to 1961 inclusive. The trial court held payments were voluntarily made and by its action the city had estopped itself. The county argues a voluntary overpayment made by the city to a municipality cannot be recovered, relying on 17 McQuillin, Mun. Corp. (3d ed.), p. 305, sec. 49.62, and on City of High Point v. Duke Power Co. (4th Cir. 1941), 120 Fed. (2d) 866; Union Properties v. Cleveland (1943), 142 Ohio St. 358, 52 N. E. (2d) 335; Wm. Sellers & Co. v. Clarke-Harrison, Inc. (1946), 354 Pa. 109, 46 Atl. (2d) 497, and on 70 C. J. S., Payment, p. 347, sec. 139. None of these authorities are controlling.

The McQuillin reference is to the effect that a payment made to a municipal corporation is ordinarily not recoverable. One sentence later, McQuillin states (p. 306) : “On the other hand, although the authorities are by no means uniform, the prevailing view seems to be that payments made by a municipality under mistake of law may be recovered.” In the City of High Point Case, recovery was denied a city but it was expressly pointed out that the overpayment was made by the city in the course of engaging in a proprietary function. Union Properties, involved not a payment by a municipality but by a private individual. Wm. Sellers & Co., involved a payment by a private individual. The Corpus Juris Secondum reference stated the general rule that voluntary payments cannot be recovered by private individuals or private corporations from a public corporation. The same section states a wrongful payment made by a public officer without authority does not constitute a voluntary payment by the municipality and may be recovered. The exception to the general rule denying recovery is, “Generally payments made by public officers under a mistake of law may be recovered back, and an action may be maintained to recover public funds paid without authority, although paid under a mistake of law, regardless of the good faith of the payee.” 70 C. J. S., Payment, p. 364, sec. 156.

The rule governing restitution where there has been a payment or satisfaction of a nonexistent obligation, such as the overpayment in this case, is stated in Restatement, Restitution, p. 189, sec. 46, as follows: “A person who has conferred a benefit upon another because of an erroneous belief induced by a mistake of law that he is under a duty so 'to do, is entitled to restitution as though the mistake were one of fact if: (a) the benefit was conferred by a State or a subdivision thereof, or . . . .” One of the illustrations given is “County X, owing to a misinterpretation of a statute by its council, pays to town Y more than its share of tax money. The county is entitled to restitution.” This rule has been followed when the payor and the payee both are municipalities. Lamar TP. v. Lamar (1914), 261 Mo. 318, 169 S. W. 12; Bismarck v. Burleigh County (1922), 49 N. D. 205, 190 N. W. 811; Gilpatric v. Hartford (1923), 98 Conn. 471, 120 Atl. 317; and Cayuga County v. State (1920), 112 Misc. 517, 183 N. Y. Supp. 646. Wisconsin has no case strictly in point but in two cases municipalities have recovered moneys paid under mistake. In one against a municipality, see St. Croix County v. Webster (1901), 111 Wis. 270, 87 N. W. 302; Milwaukee v. Milwaukee County (1902), 114 Wis. 374, 90 N. W. 447.

But it is claimed by Milwaukee county and was found by the trial judge that the city of Milwaukee by its course of conduct was estopped from asserting such cause of action. In Wisconsin a municipal body is not immune from the application of the doctrine of estoppel and it makes no difference whether the activities are governmental, as here, or proprietary. St. Croix County v. Webster, supra; Eau Claire Dells Improvement Co. v. Eau Claire (1920), 172 Wis. 240, 179 N. W. 2; Milwaukee County v. Badger Chair & Furniture Co. (1936), 223 Wis. 118, 269 N. W. 659; Park Bldg. Corp. v. Industrial Comm. (1960), 9 Wis. (2d) 78, 100 N. W. (2d) 571; Lang v. Cumberland (1962), 18 Wis. (2d) 157, 118 N. W. (2d) 114. An estoppel in pais consists of action or nonaction on the part of the one against whom the estoppel is asserted which induces reliance thereon by another, either in the form of action or nonaction, to his detriment. Dixon v. Davidson (1930), 202 Wis. 19, 231 N. W. 276; Callaway v. Evanson (1956), 272 Wis. 251, 75 N. W. (2d) 456; Eau Claire Dells Improvement Co. v. Eau Claire, supra.

Here, the county board passed resolutions establishing the per diem rates for the cost of keeping prisoners at the house of correction and at the county jail and billed the city for its prisoners. Over the years the city of Milwaukee paid such bills. The only affirmative conduct which can be charged to the city of Milwaukee is the act of payment; the only omission, its failure to object to the amount of the bills. Neither the city nor any of its officers did anything to induce the county to make or to change its annual per diem rate. By statute, the county was required to fix the actual and reasonable costs of maintenance by ordinance. The amount of the per diem charges was solely determined by the county. Because the city did not complain sooner is hardly an argument why Milwaukee county continued to overcharge the city. The county strenuously argues on appeal that there was no overcharging and it was justified in making the charges it made. We do not find any affirmative act or omission on the part of the city or any reliance upon an act or omission of the city of Milwaukee or any change in position of Milwaukee county.

The declaratory judgment in its paragraph 1 dismissed the complaint of the city of Milwaukee on its merits. This procedure is not recommended. The declaratory judgment should declare the rights of the parties and if adverse to the plaintiff it is incongruous to dismiss the complaint asking for the declaration. Liddicoat v. Kenosha City Board of Education (1962), 17 Wis. (2d) 400, 117 N. W. (2d) 369. It is apparent that the declaratory judgment must be reversed as to the dismissal and modified to include food-labor costs in the items of costs of maintenance, and otherwise, affirmed.

By the Court. — Paragraph 1 of the judgment dismissing the complaint of the city of Milwaukee on its merits is reversed; the city is entitled to recover its overpayments for the years 1956 to 1961 inclusive; paragraph 5 of the judgment is modified to include in the out-of-pocket expense directly affecting prisoners’ keep in addition to those items listed in paragraph 13 of the trial court’s findings the items relating to labor costs for preparing and serving food, such as chef, food supervisor, cooks, and service-food workers referred to in items 1, 2, and 3 relating to county jail and item 1 relating to the house of correction in the description of items supplementing Exhibits 2 and 3 of the plaintiff’s complaint; the county of Milwaukee may determine the liability of the city of Milwaukee under secs. 56.18 (2), 176.43 (1), and 66.12 (1) (c), Stats., on a per diem basis by using in its accounting formula only such items of expense as allowed by the trial court and as herein modified; in applying said formula the county need not prorate the per diem charge to portions of a day; in all other respects the declaratory judgment is affirmed; costs on this appeal are not allowed to either party.

       “56.18 COMMITMENTS; MUNICIPAL PRISONERS; . . .
      “(2) Each village or city in such county shall, at such times as shall be designated by the county board, pay to the county the actual and reasonable costs of maintenance, as determined by ordinance of the county board, of all persons confined in the house of correction for the violation of any of the ordinances of such city or village during the preceding year.”

       176.43 “Municipal and state Regulations; penalties. (1) Any city, village or town may by ordinance prescribe additional regulations in or upon the sale of intoxicating liquor, not in conflict with the provisions of this chapter. Such ordinance may prescribe different penalties than those provided in this chapter, but no ordinance shall provide a greater penalty than the maximum allowed by law. The provisions of this chapter shall in no way affect the power of cities, villages and towns to enact zoning ordinances or to enforce zoning regulations now in force or hereinafter enacted. Whenever any person shall be committed to the county jail or house of correction for the violation of a municipal ordinance, his board shall be paid by the municipality where such violation was committed.”

       66.12 “Actions for violation of city or village regulations. (1) Collection of forfeitures and penalties.

      “(c) In case of conviction the court shall enter judgment against the defendant for the costs of prosecution, and for the penalty or forfeiture, if any, and that he be imprisoned for such time, not exceeding 90 days, unless otherwise provided by the ordinance, resolution or bylaw, as the court deems fit unless the judgment is sooner paid. Such judgment or the imposition of any penalty or costs may be suspended or deferred for not more than 30 days in the discretion of the court. Prisoners confined in the county jail or in some other penal or correctional institution for violation of a city or village ordinance, resolution or bylaw shall be kept at the expense of the city or village.”


author: FaiRCHIld, J.

text:
    James Talcott, Inc., Respondent, v. P & J Contracting Company, Inc., Appellant.

      February 2

    March 16, 1965.

      For the appellant there were briefs by Grootemaat, Cook & Franke, attorneys, and John J. Ottusch of counsel, all of Milwaukee, and oral argument by Mr. Ottusch.

    For the respondent the cause was submitted on the brief of Frits & Zick of Waukesha.
   FaiRCHIld, J.

The contract was one for the leasing of goods under which the lessee (P & J) agreed to pay $26,319.60 ($23,500 plus a finance fee) and the lessee had the option of becoming the owner upon full compliance with the terms of the contract.

P & J asserts that this is a conditional sale and subject to the requirements of ch. 122, Stats. Sec. 122.01 (1) provides in part:

“In this chapter ‘conditional sale’ means . . . any contract for the bailment or leasing of goods by which the bailee or lessee contracts to pay as compensation a sum substantially equivalent to the value of the goods, and by which it is agreed that the bailee or lessee is bound to become, or has the option of becoming the owner of such goods upon full compliance with the terms of the contract.”

Talcott does not challenge the proposition that if the contract is a conditional sale under ch. 122, Stats., Talcott will be unable to recover any deficiency. Since P & J had paid less than 50 percent of the purchase price, Talcott was not compelled by sec. 122.19 to resell under that section, but under sec. 122.20, Talcott had the option of reselling for the account of P & J upon compliance with sec. 122.19. Under secs. 122.23 and 122.24, P & J would be discharged of its obligation if there were no resale. Admittedly Talcott failed to comply with the requirements of sec. 122.19 with respect to a resale. There was no public auction in Wisconsin; there was no sale within thirty days after the retaking, and notices were not given. A judgment for deficiency may be had only in the event of a valid resale.

Talcott makes three arguments why the contract between Adams and P & J was not a conditional sale as defined in the portion of sec. 122.01 (1), Stats., above quoted: (1) The total payment P & J agreed to make, $26,319.60, was substantially in excess of the market value of the scrapers, asserted to be $18,000, and therefore not “substantially equivalent” thereto. (2) P & J, by defaulting in the required payments, forfeited its option, and when Talcott repossessed the scrapers, P & J no longer had “the option of becoming the owner.” (3) The option and the rental agreement were separate and independent agreements, rather than a single “contract.”

Talcott also asserts in its brief, though not in its affidavit opposing summary judgment, that it could prove on a trial that the lease form was used at the request of P & J, and appellant is accordingly estopped from claiming that what appears to be a lease was really a conditional sale.

We shall discuss these arguments in order.

1. Assuming that the amount P & J agreed to pay under the lease, and upon payment of which it could take ownership, was substantially in excess of the market value of the scrapers, determined upon testimony at a trial, was such amount “substantially equivalent to the value of the goods,” under sec. 122.01 (1), Stats.?

Dean Bogert, the draftsman of the Uniform Conditional Sales Act, explained the background of the statutory definition as applied to the type of contract involved in this case, as follows:

“Leases. Frequently the transaction by which goods are delivered for use is called by the parties a ‘lease’ and provides for the payment of ‘rentyet it may appear to have as its possible or probable purpose the passing of title to the goods. Whether this contract is to be treated as a conditional sale under the statutes, or is a true lease, is a problem which has given some trouble to the courts.
“The name by which the transaction is called is not of importance. . . .
“In still a third class of cases the arrangement is slightly different. The buyer is to have the option at the end of his rental payments, of becoming the owner of the leased goods. Here a sale will obviously result if all the rent is paid. No man is going to decline the option of becoming owner of the leased goods, when he can acquire them by the mere expression of his wish. Nothing is to be paid beyond the so-called rent. If the payment of the rent is to give the so-called lessee the option of becoming the owner of the goods, clearly the rent is the purchase price in disguise. The cases have treated this contract as a conditional sale. . . .
“Frequently these leasing contracts provide that the lessee is to have the option of becoming the owner of the leased goods át the completion of his rent payments, if he pays a nominal sum in addition, as, for example, $1 or $5. The courts have held that the rental payments constituted the real, substantial price in these cases and that the requirement of the payment of a trifling sum beyond the rent did not change the nature of the transaction and prevent it being considered a conditional sale. It was not in fact a true lease, with an option to buy for a sum which was equivalent to the then value of the goods. ...”

Professor Void has commented upon the same area, as follows:

“The deal may therefore be expressed in the form of a lease of the goods for a periodic rent; this rent being equivalent to the purchase price paid in installments. The ‘rent’ thus stipulated is made absolutely payable. The lessee is by the terms of the agreement to become the owner or has the option of becoming the owner upon full payment as agreed. The courts in such cases look through the form to the substance. Where this matter is for any reason material, they treat such deals as conditional sales. Leases may be made with options to purchase the goods for a merely nominal amount at the expiration of the stipulated rental period. The agreed rent here, too, is made absolutely payable and substantially equivalent to the purchase price. Such deals are similarly interpreted, it being equally clear that such deals are in substance conditional sales.”

The Commissioners’ Note to sec. 1 of the Uniform Conditional Sales Act also makes it plain that the portion of the language here involved was intended to treat as conditional sales those contracts which appear to be leases, but under which ownership is certain or almost certain to pass to the lessee upon fulfilment of his obligations.

In the light of this background for the statutory language our conclusion is that the “value” referred to in the statute is the value fixed by the contract of the parties, i.e., the amount or consideration upon payment of which the lessee shall, or may at his option, become the owner. Where the lessee binds himself to pay, ostensibly as rent, all or very nearly all of such amount or consideration, the statute treats the payments of rent as instalments of a purchase price and the contract as a conditional sale.

Under this view, it is irrelevant whether, by hindsight, it can be determined that the market value of the goods was more or less than the amount the lessee obligated himself to pay. Such determination would only establish whether the lessee had made a good or a bad bargain.

Although the Uniform Commercial Code is not yet in effect in this state, we note that in treating the problem now before us, it does not speak in terms of “value,” but provides as follows:

“. . . an agreement that upon compliance with the terms of the lease the lessee shall become or has the option to become the owner of the property for no additional consideration or for a nominal consideration does make the lease one intended for security.”

2. In applying the definition in sec. 122.01 (1), Stats., is it material that, upon default in rental payments, lessee would lose its option to purchase?

Under the terms of the contract, P & J had the option of becoming the owner upon full compliance with the terms of the contract. The contract did provide, however, that failure to make a rental payment within ten days of the time specified shall cause the option to expire. The contract nevertheless fulfils the statutory definition because P & J did have the option of becoming the owner upon full compliance with the terms. It is our opinion that this is controlling, even though the contract purported to provide for forfeiture of the option upon continued default. The contract was accordingly a conditional sale, and the rights of the lessee-buyer after continued default would be governed by ch. 122, Stats., even though some of the terms of the contract might appear to conflict with the statute.

3. Were the option and rental agreement one contract?

The “Rental Agreement” and “Privilege of Purchase Option” were signed the same day by H. J. Adams on behalf of Adams, and Patrick J. Murphy, Jr., on behalf of P & J. The “Privilege of Purchase Option” contains a reference to the “lease agreement ... to which the purchase option is attached . . .” The pleadings and admissions in response to demand treat the two documents as one. There is nothing in the record to suggest that the two documents were not simultaneously executed as parts of a single transaction.

“The general rule is that in the absence of anything to indicate a contrary intention, instruments executed at the same time, by the same contracting parties, for the same purpose, and in the course of the same transaction will be considered and construed together, since they are, in the eyes of the law, one contract or instrument. ...”

Treated as one contract, the two instruments show that there was a conditional sale as defined in the statute.

4. Estoppel.

Talcott did not originally allege nor amend its complaint, after answer, to plead that P & J was estopped from claiming that the contract was a conditional sale. The affidavits filed in opposition to the motion for summary judgment set forth no fact supporting the claim of estoppel. In order to prevent summary judgment on P & J’s motion, sec. 270.635 (2), Stats., required that Talcott “by affidavit or other proof, show facts which the court shall deem sufficient to entitle him to a trial.” The failure to do so is adequate reason for declining to consider the claim at this stage.

The claim, as stated in Talcott’s brief, is that P & J chose to have the agreement in lease form for its sole benefit. Although we rest our decision upon the ground just stated, we note in passing that the statute defines a contract which on its face is a lease, with certain terms, as a conditional sale. Although it appears historically that it was ordinarily the seller who tried to disguise the transaction, it is doubtful if this is reason enough to permit the seller to prove that in a given instance it was the buyer who insisted on the disguise and thus to avoid recognition of the true character of the transaction.

By the Court. — Order reversed, cause remanded with directions to dismiss the complaint upon the merits.

        Mack International Motor Truck Corp. v. Thelen Trucking Co. (1931), 205 Wis. 434, 439, 237 N. W. 75.

       2A Uniform Laws Annotated, Bogert, Commentaries on Conditional Sales, pp. 21 and 23, sec. 13.

       Void, Law of Sales (hornbook series, 2d ed. 1959), pp. 326, 329, sec. 64, ch. 10.

       Sec. 401.201 (37) (b), Stats. 1963, effective July 1, 1965.

       17 Am. Jur. (2d), Contracts, p. 668, sec. 264. See In re Crown Cartridge Corp. (D. C. N. Y. 1962), 220 Fed. Supp. 914.

        Schneck v. Mutual Service Casualty Ins. Co. (1963), 18 Wis (2d) 566, 573, 119 N. W. (2d) 342.