author: Wilkie, J. Currie, C. J.

text:
    Goyer, Plaintiff in error, v. State, Defendant in error.

      November 30, 1964 —
    January 5, 1965.

      For the plaintiff in error there was a brief and oral argument by Wm. J. Marth of West Bend.
    For the defendant in error the cause was argued by William A. Plats, assistant attorney general, with whom on the brief was George Thompson, attorney general.
   Wilkie, J.

The principal issue on this appeal is whether it was violative of due process to try Goyer by way of an information rather than on presentment or indictment of a grand jury as required by the Fifth amendment of the United States constitution.

Goyer waived any objection in this regard by failing to raise it before his trial.

Assuming there was no waiver, nevertheless the law is well settled that the presentment or indictment requirements of the Fifth amendment are not made applicable to the states by the Fourteenth amendment.

Counsel for defendant concedes that this is so but asks this court to overrule the Rowan Case and hold that the Fourteenth amendment makes those provisions of the Fifth amendment apply in Wisconsin so as to require that criminal prosecutions proceed by way of a presentment or indictment of a grand jury and not by way of an information. We are convinced that the requirements of due process do not require or warrant such a change in the law. In fact, we are persuaded that the essentials of due process are well served by the present procedure, approved in Rowan.

The fundamental rationale of the ruling that due process does not require prosecution only by presentment or indictment growing out of a grand jury proceeding is well stated in Rowan:

“And the words ‘due process of law,’ in this amendment, do not mean and have not the effect to limit the powers of the state governments to prosecutions for crimes by indictments, but these words do mean law in its regular course of administration according to the prescribed forms and in accordance with the general rules for the protection of individual rights. Administration and remedial proceedings must change from time to time with the advancement of legal science and the progress of society, and if the people of the state find it wise and expedient to abolish the grand jury and prosecute all crimes by information, there is nothing in our state constitution as it now stands, and nothing in the 14th amendment to the constitution of the United States, which prevents them from doing so.”

In Kennedy, the supreme court of errors of Connecticut stated:

“The fact that throughout the more than three centuries this commonwealth has existed grand jury indictments have been required only for the most serious offenses is the strongest evidence that the people of this state do not believe that such indictments are necessary for their protection in other cases.”

and

"We can find neither in the history of criminal procedure in this state nor in the attitude of the people towards it any basis for a conclusion that grand jury indictments ought to be a necessary foundation upon which all prosecutions for infamous crimes should rest.”

The United States supreme court held in Hurtado:

“Tried by these principles, we are unable to say that the substitution for a presentment or indictment by a grand jury of the proceeding by information, after examination and commitment by a magistrate, certifying to the probable guilt of the defendant, with the right on his part to the aid of counsel, and to the cross-examination of the witnesses produced for the prosecution is not due process of law.”

Also in Lem JVoon:

“But since, as this court has so often held, the ‘due process of law’ clause does not require the State to adopt the institution and procedure of a grand jury, we are unable to see upon what theory it can be held that an examination, or the opportunity for one, prior to the formal accusation by the district attorney, is obligatory upon the States.”

This basic rationale remains unaffected by recent decisions of the United States supreme court holding that certain other Bill of Rights provisions are binding upon the several states in view of the due-process requirement of the Fourteenth amendment. The essence of the due-process concept in considering whether the Fourteenth amendment requires that certain provisions of the Bill of Rights apply to the states is that due process means “ ‘a fundamental right, essential to a fair trial.’ ”

There is nothing fundamentally unfair about the procedure that permits criminal prosecution by way of information especially as contrasted with a prosecution flowing from a grand jury proceeding. That a prosecution by way of information has many features of fairness also present in the grand jury procedure, was pointed out by this court in Thies v. State, where it was stated:

“The object or purpose of the preliminary investigation is to prevent hasty, malicious, improvident, ánd oppressive prosecutions, to protect the person charged from open and public accusations of crime, to avoid both for the defendant and the public the expense of a public trial, and to save the defendant from the humiliation and anxiety involved in public prosecution, and to discover whether or not there are substantial grounds upon which a prosecution may be based.”

There is nothing inherently fairer, in the quest to provide defendant with a fair trial, about a procedure allowing prosecution by indictment by grand jury rather than by way of an information.

The remaining issue is whether it was error to impose a sentence for conviction of a single crime which runs concurrently in part and consecutively in part. The judge had no authority to split the sentence. The sentence is part of the judgment. In view of the trial court’s error sentence should not be split but should be declared to be for a ten-year concurrent term.

By the Court. — Judgment modified to provide that sentence is for a ten-year concurrent term and, as so modified, affirmed.

Currie, C. J.

{concurring). I fully concur in the opinion of the court. This concurring opinion will be directed solely to the contention of appellant that the provision of the Fifth amendment to the United States constitution that, “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, . . .” has application to a prosecution for felony in a state court.

As Mr. Justice Cardozo pointed out in Palko v. Connecticut (1937), 302 U. S. 319, 323-325, 58 Sup. Ct. 149, 82 L. Ed. 288, the due-process clause of the Fourteenth amendment does not embody all of the prohibitions of the Bill of Rights (amendments I to VIII) but only those “found to be implicit in the concept of ordered liberty, . . .” The Palko opinion, by way of illustration, points out that the immunity from prosecution except by indictment of a grand jury is “not of the very essence of a scheme of ordered liberty” and to abolish it is not to violate a “ ‘principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’ ” Id. page 325.

There are those who maintain that the Fourteenth amendment originally was intended to incorporate the entire Bill of Rights. A complete refutation of this hypothesis is to be found in Professor Fairman’s great contribution to legal history, “Does the Fourteenth Amendment Incorporate the Bill of Rights?” 2 Stanford Law Review (1949), 5. One of the telling facts marshaled by Fairman is that a number of states which ratified the Fourteenth amendment had provisions in their own state constitutions or statutes which were in direct conflict with certain provisions of the Bill of Rights. Included among these states were Connecticut, Indiana, Kansas, and Michigan which did not require grand jury indictments in all felonies. For example, the supreme court of Connecticut in State v. Hayes (1941), 127 Conn. 543, 581, 18 Atl. (2d) 895, declared that proceeding in criminal prosecutions by information was “in accordance with the practice in this state for nearly two centuries and approved by our courts.”

Fairman relates in some detail what transpired in Wisconsin as reflecting the understanding that this state could not have ratified the Fourteenth amendment with any idea that it incorporated the Bill of Rights. When the legislature ratified this amendment in 1867, sec. 8, art. I, of the Wisconsin constitution provided, “No person shall be held to answer for a criminal offense, unless on the presentment, or indictment of a grand jury, Then on March 9, 1869 — less than a year after the Fourteenth amendment had been ratified by the required number of states — the legislature adopted a resolution to amend this section of the state constitution so as to delete the requirement of a presentment or indictment by a grand jury. The succeeding legislature passed the resolution, the people approved of it in a referendum, and the amendment became effective in 1870. Then two years later this court decided Rowan v. State (1872), 30 Wis. 129. This is rather conclusive evidence that the contemporary understanding in Wisconsin was that ratification of the Fourteenth amendment did not impose the requirement of the Fifth amendment of a grand jury presentment or indictment in state criminal prosecutions.

Over the years there has been a rather steady movement away from grand jury indictments and substituting in its place the initiation of criminal prosecutions by complaint or information. Even England in 1933 abolished the grand jury. While in 1791, when the first 10 amendments to the United States constitution containing the Bill of Rights became effective, presentment or indictment by grand jury may have been implicit in the concept of ordered liberty, it had ceased to be so regarded by many people when the Fourteenth amendment was enacted and ratified. Today there are at least 21 states, in which an information is available as a substitute for a grand jury in all criminal prosecutions. United States District Judge John W. Oliver recently pointed out these pertinent facts showing the trend of opposition to the grand jury: William Howard Taft in 1915 testified against the grand jury before the New York State Constitutional Convention; in 1920 the American Judicature Society joined the ranks of those favoring complete abolition; in 1928 the American Law Institute recommended that all criminal prosecutions be commenced by information alone; and the Wickersham Commission’s report in 1931 to President Hoover recommended that grand juries be abolished.

While some present justices of the United States supreme court favor incorporation of all provisions of the Bill of Rights into the Fourteenth amendment, it seems unlikely that a majority of the court will so decide thus freezing upon the states compulsory presentment or indictment by grand jury when so many jurists and students of criminal law do not regard it as essential to ordered liberty, and the trend for many years has been steadily toward its abolition.

       “No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, „ . ”

       Sec. 955.09 (3), Stats.: “Defenses and objections based on defects in the institution of the proceedings, . . . must be raised before trial by motion or be deemed waived. . . .”

        Thies v. State (1922), 178 Wis. 98, 189 N. W. 539; Rowan v. State (1872), 30 Wis. 129; Kennedy v. Walker (1948), 135 Conn. 262, 63 Atl. (2d) 589, affirmed, 337 U. S. 901, 69 Sup. Ct. 1047, 93 L. Ed. 1715, rehearing denied, 337 U. S. 934, 69 Sup. Ct. 1491, 93 L. Ed. 1740; Lem Woon v. Oregon (1913), 229 U. S. 586, 33 Sup. Ct. 783, 57 L. Ed. 1340; Hurtado v. California (1884), 110 U. S. 516, 4 Sup. Ct. 111, 28 L. Ed. 232.

        Supra, footnote 3.

         Supra, footnote 3, at page 149.

        Supra, footnote 3, at page 270.

        Kennedy v. Walker, supra, footnote 3, at page 271.

        Supra, footnote 3 at page 538. See reference to Hurtado rule in footnote 2 of majority opinion, Malloy v. Hogan (1964), 378 U. S. 1, 4, 84 Sup. Ct. 1489, 12 L. Ed. (2d) 653.

        Supra, footnote 3, at page 590.

        Escobedo v. Illinois (1964), 378 U. S. 478, 84 Sup. Ct. 1758, 12 L. Ed. (2d) 977; Malloy v. Hogan (1964), 378 U. S. 1, 84 Sup. Ct. 1489, 12 L. Ed. (2d) 653; Massiah v. United States (1964), 377 U. S. 201, 84 Sup. Ct. 1199, 12 L. Ed. (2d) 246; Gideon v. Wainwright (1963), 372 U. S. 335, 83 Sup. Ct. 792, 9 L. Ed. (2d) 799; Spano v. New York (1959), 360 U. S. 315, 79 Sup. Ct. 1202, 3 L. Ed. (2d) 1265.

        Gideon v. Wainwright, supra, footnote 10, at page 340.

        Supra, footnote 3, at page 103.

       Sec. 959.07, Stats. . . The court may impose as many sentences as there are convictions and may provide that any such sentence shall commence at the expiration of any other sentence; and if ;the defendant is then serving a sentence, the present sentence may provide that it shall commence at the expiration of the previous sentence.”

       Administration of Justice (Misc. Provisions) Act, 1933, 23 & 24 Geo. 5, c. 36, sec. 1. See also Elliff, Notes on the Abolition of the English Grand Jury, 29 J. Crim., C. & P. S. (1938) 3. In 1827 Jeremy Bentham declared that long before that time the grand jury had outlived its usefulness. 2 Bentham Rationale of Judicial Evidence, 313, cited in 74 Harvard Law Review (1960), 591, footnote 12.

       See Historical Note, USCA, Constitution of the United States Annotated, Amendments 1 to 5, page 10.

       Watts, Grand Jury: Sleeping Watchdog or Expensive Antique. 37 N. C. Law Review (1959), 290, 291.

       Oliver, The Grand Jury: An Effort to Get a Dragon out of His Cave, 1962 Washington University Law Quarterly, 166, 183.


source: Caselaw Access Project

author: Beilfuss, J.

license: Public Domain

text:
    Horvath, Plaintiff and Respondent, v. Industrial Commission, Defendant: Holcombe Joint School District No. 11 and another, Defendants and Appellants.

      November 30, 1964 —
    January 5, 1965.

      For the appellants there was a brief by Klueter, Larson & MacKenzie of Wausau, and oral argument by H. R. Klueter.
    For the respondent there was a brief and oral argument by Rodney Lee Young of Ladysmith.
   Beilfuss, J.

The principal issue upon this appeal is, as stipulated by the parties before the examiner, did the injury take place in the course of employment and did it arise out of employment within the meaning of the Workmen’s Compensation Act. As a necessary incident to our consideration of the principal issue, we must determine whether the findings of the commission, based upon facts herein, are conclusive.

The court has dealt with this problem on innumerable occasions. The applicable rules derived from the cases can be summarized from the following citations:

“The only question, is whether there is credible evidence to support the commission’s finding, ... If there is such evidence, in the absence of fraud, the finding is conclusive upon the court and the finding must be sustained. Sec. 102.23, Stats. When facts are not in dispute but permit the drawing of different inferences therefrom, the drawing of one such permissible inference by the commission is ah act of fact finding, and the inference so derived constitutes a finding of an ultimate fact, not a conclusion of law. Gant v. Industrial Comm. (1953), 263 Wis. 64, 69, 70, 56 N. W. (2d) 525.” Hanz v. Industrial Comm. (1959), 7 Wis. (2d) 314, 316, 96 N.W. (2d) 533.
“The respondents contend that whether or not the accir dent arose out of the employment presents a question of fact and the commission’s finding of fact that it did not is conclusive upon this court. The facts in the instant case are undisputed. In such a situation if but one inference can reasonably be drawn from such undisputed facts a question of law is presented and the finding of the commission to the contrary is not binding on the reviewing court; but, if more than one inference can reasonably be drawn, then the finding of the commission is conclusive. Schmidlkofer v. Industrial Comm. (1953), 265 Wis. 535, 538, 61 N. W. (2d) 862.” Van Roy v. Industrial Comm. (1958), 5 Wis. (2d) 416, 425, 92 N. W. (2d) 818.
“We consider that on the undisputed facts, and on the finding of the commission on the one material point of fact in dispute, only 'one inference is permissible, viz., that Chamberlain sustained his injury while performing service growing out of and incidental to his employment, and the accident arose out of his employment. Therefore only a question of law is presented, and we are not bound by the commission’s determination to the contrary, whether it be treated as a finding of fact or a conclusion of law. Schmidlkofer v. Industrial Comm. 265 Wis. 535, 538, 61 N. W. (2d) 862.” Chamberlain v. Industrial Comm. (1958), 5 Wis. (2d) 411, 414, 92 N. W. (2d) 829.

The material facts before us are not in dispute. Miss Horvath was employed by the school district. She was required as a part of her duties to advise and supervise the students belonging to the Future Homemakers of America. The purpose of the banquet was a “culmination of training as a part of economics of homes.” The banquet was to be held in facilities rented by the school district at 8 p. m., which was not during regular hours. No adequate facilities were available to bathe or change clothes at the school or town hall. Miss Horvath returned to her home for that purpose. The accident and resulting injuries occurred while on this trip.

We conclude that conflicting reasonable inferences cannot be drawn from the undisputed facts insofar as they apply to Miss Horvath’s statutory workmen’s compensation claim. The finding of the commission is not conclusive but subject to review.

If Miss Horvath is to prevail, her right to benefits must be established within the provisions of sec. 102.03, Stats. Pertinent parts of that section are:

“102.03 Conditions of liability. (1) Liability under this chapter shall exist against an employer only where the following conditions concur:
“(c) 1. Where, at the time of the injury, the employe is performing service growing out of and incidental to his employment. ..Every employe going to and from his employment in the ordinary and usual way, while on the premises of his employer, or while in the immediate vicinity thereof if the injury results from an occurrence on the premises, shall be deemed to be performing service growing out of and incidental to his employment; . . . The premises of his employer shall be deemed to include also the premises of any other person on whose premises service is being performed.
“(f) Every employe whose employment requires him to travel shall be deemed to be performing service growing out of and incidental to his employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of süch service shall be deemed to arise out of his employment.”

All of the principal contentions of the appellant have been considered by the circuit judge in a well-considered memorandum opinion. We agree. His memorandum opinion is in part as follows:

“The examiner concluded that Miss Horvath’s accident took place in the course of her employment and arose out of her employment. Upon review the Commission concluded to the contrary with the following ‘memorandum’ comment:
“ ‘Applicant’s work did not require that she travel, within the meaning of the provisions of 102.03 (1) (f). Her situation was the same as any office or factory worker who must go to the office or factory to work. Applicant was merely going from her employment and was not on the premises of her employment at the time of injury. The trip was not requested by the employer. She was going home just as she normally did after any day of work.’
“We disagree with the Commission’s conclusion. This is not the routine case of an employe going to and from work under Sec. 102.03 (c). Miss Horvath was not going to and from work as she did under the regular routine of going from her home to work at school in the morning and going from school back to her home in the evening. Had she been injured under such circumstances she would not have been injured ‘while performing service growing out of and incidental to her employment’ sec. 102.03 (1) (c) Wis. Stats. Makal v. Industrial Comm. (1952) 262 Wis. 215, 54 N. W. (2d) 905; Charney v. Industrial Comm. (1946) 249 Wis. 144, 23 N. W. (2d) 508; Selmer Co. v. Industrial Comm. (1953) 264 Wis. 295, 58 N. W. (2d) 628; Kerin v. Industrial Comm. (1942) 239 Wis. 617, 2 N. W. (2d) 223.
“Miss Horvath was making her special trip from the town hall to her home and back for the single purpose of cleaning up after the heavy afternoon’s preparation and dressing suitably for the banquet at 8 o’clock. She had to prepare for, attend and supervise this banquet as one of her specific duties under her contract of hire with the school board. She had no choice in the matter. Her special trip home to bathe and dress was for the direct benefit of her employer. There was no interruption in the continuity of her service for her employer that day. She had worked until 4:30 p. m., at the town hall with her girl students preparing for the banquet and then went straight home with two of the girls as passengers, expecting only to bathe and dress and then turn right around and come back to the town hall, picking up the same two girl students and one other girl student on her way back. At no time did she leave her employment or deviate from it for any private or personal activity.
“Githens v. Industrial Comm. (1936), 220 Wis. 658, 265 N. W. 662; is distinguishable from the case at bar. In Githens the employee had done some outside inspection work and then went home from work to have his supper. He was injured on the way to the office after supper. His trip home for supper was an interruption of his service for his employer. He was injured on a trip to work. He was not injured while at work.
“See 1 Larson, Law of Workmen’s Compensation, p. 226, sec. 16.12, Overtime or Rush Work:
“ ‘On the other hand, if the overtime work involves a special and extraordinary trip for the benefit of the employer, it has several times been held that the trip becomes part of the service. A good example is that of a bookkeeper, who normally worked five days a week, but who was asked to come to the office for about an hour on Saturday morning to get out certain records and go over them with an accountant who was preparing an income tax report. Her husband drove her to the shop, waited for her in the car, and then drove her home. After she left the car, she crossed the public sidewalk, and about half-way between the sidewalk and her house, on premises owned by her and her husband, she slipped and fell. Compensation was based squarely on the special errand rule. Equally successful was the claim of an employee who, having been asked to hurry home for a quick supper and get back in the evening for special rush work in taking inventory, stumbled going into her own house. And the same doctrine was applied when an employer told the employee to go home, change his clothes, and rejoin the employer for an evening business call. But when a porter was asked to stay an extra half hour, and received permission to walk home and tell his wife that he would be late so that she would not worry, the trip was held to be solely for the employee’s benefit, and a fall in the course of it was held non-compensable. ’ (Italics supplied.)
“It is sufficient that Miss Horvath did what she did because she was obliged to do so in fulfilling her contractual commitments as an employee of the school board. The fact that she did not receive any special additional or extra compensation for such FHA work is immaterial. The fact that she was not reimbursed the cost of travel is immaterial. Since she was at work and not on her way to or from work, as in sec. 102.03 (1) (c), the fact that the accident happened off the premises of her employer is irrelevant. Thus using the ‘analytical approach’, as in Pabst v. Department of Taxation (1962) 19 Wis. (2d) 313, 322, 120 N. W. (2d) 77, we have concluded that only one reasonable inference can be drawn from the ‘undisputed evidentiary facts’ and that the conclusion we reach follows necessarily as a matter of law. Van Roy v. Industrial Comm. (1958) 5 Wis. (2d) 416, 425, 92 N. W. (2d) 818; Cutler-Hammer Inc., v. Industrial Comm. (1961) 13 Wis. (2d) 618, 632, 109 N. W. (2d) 468; Springfield Lumber, Feed & Fuel Co. v. Industrial Comm. .(1960), 10 Wis. (2d) 405, 410, 102 N. W. (2d) 754; Mrs. Drenk’s Foods v. Industrial Comm. (1959), 8 Wis. (2d) 192, 197, 99 N. W. (2d) 172; Brown v. Industrial Comm. (1960) 9 Wis. (2d) 555, 569, 101 N. W. (2d) 788; Stommel v. Industrial Comm. (1962) 15 Wis. (2d) 368, 112 N. W. (2d) 904. . . .
“In our analysis of the ‘personal comfort doctrine’ cases cited by counsel, including Van Roy v. Industrial Comm. (1958) 5 Wis. (2d) 416, American Motors v. Industrial Comm. (1957) 1 Wis. (2d) 261, 83 N. W. (2d) 714 and Krause v. Western Casualty & Surety Co. (1958) 3 Wis. (2d) 61, 87 N. W. (2d) 875 we are impressed with the position taken by our court that an employee’s injuries ‘off the premises’ of the employer while such employee is ministering to his ‘personal comfort’ are compensable when it is clear that the employee’s acts in ministering to his personal comfort are necessarily incidental to his employment. The standards laid down by our court are clear. The act in question must bear a direct relationship to the employment and thus be in furtherance or advancement of the employer’s interests. Such acts do not constitute deviations from the employment. They are part and parcel of the employment. They are easily distinguishable from similar acts incident to activities which are entirely private or personal to the employee. Hence we draw support from these ‘personal comfort’ doctrine cases in reaching our conclusion that Miss Horvath was, as a matter of law, ‘performing service growing out of and incidental to her employment’ at the time of her injury and our further conclusion that the accident causing injury to Miss Horvath did, as a matter of law, arise out of her employment.”

We only want to add by way of emphasis the distinction between the facts of this case and the ordinary uncompensa-ble act of “going to and from work.” Miss Horvath was not going to her home because her day’s work was done. Presumably she would make that trip after the banquet and ceremonies were completed. Nor was she going home for personal or private reasons on a “split shift” during off-working hours, such as an occasion where her evening duties did not reasonably require special attire. If adequate facilities for necessary grooming had been available at either the school or the town hall a different result could have been reached, if she chose, as a personal matter, to go home. Nor do we deem significant the' fact that her home was 18 miles from the school. Because of modern facilities and ease of transportation common to all, we deem an employee’s residence 18 miles from her place of employment to be within the reasonable expectation of her employer.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.


author: Heffernan, J.

text:
    Krcmar, Respondent, v. Reichert and others, Appellants.

      November 30, 1964 —
    January 5, 1965.

      For the appellants there were briefs by Clark & Kenyon of Tomah, and Hart, Kraege, Jackman & Wightman of Madison, and oral argument by F. Robert Kolacke of Madison.
    For the respondent there was a brief by Curran & Curran of Mauston, and oral argument by Thomas J. Curran.

   Heffernan, J.

Defendants contend that Krcmar’s causal negligence was, as a matter of law, equal to or greater than the causal negligence of Reichert. In their argument, they appear to claim that Reichert was free from negligence as well as that Krcmar’s negligence was greater. Defendants also claim that it was error to receive in evidence a certain sketch.

“. . . When a jury verdict is attacked we inquire only whether there is any credible evidence that under any reasonable view, supports the verdict.”
“In the great majority of automobile accident cases the comparison of negligence is for the jury, and the instances in which a court can rule as a matter of law that the negligence of a plaintiff equaled or exceeded that of a defendant are extremely rare.”

1. Reichert’s negligence. The jury could properly have found Reichert negligent with respect to speed. The applicable limit was 65 miles per hour. He admitted driving 70 miles per hour on G farther north. He testified, however, that as he approached the intersection his speed was between 60 and 65 miles per hour. He based this on having checked his speed when he observed a deer-crossing sign a mile or a mile and a half north of the intersection. His credibility on this point was impeached by other testimony that there was no deer-crossing sign within 14 miles.

The jury could consider, at least as corroborative evidence of speed in excess of 65 miles per hour, the following facts:

Reichert’s Ford automobile traveled about 100 feet on the pavement with brakes applied hard, and another 100 feet across the shoulder and down a ditch. It then went up the shoulder of the town road,, striking the Krcmar car with sufficient force to throw Mr. Krcmar out of it and from 10 to 25 feet from his car. The Reichert car continued 106 feet over the ground and through some brush. It retained enough momentum so that when it was stopped by a tree, Reichert was momentarily stunned by a bump on the head and the left front door was jammed shut.

It appears that if Reichert had remained on the pavement, in addition to applying his brakes, the collision would not have occurred. Excessive speed shortened the time Krcmar had in which to cross the road in safety, and probably was a cause of Reichert’s loss of control of his car.

Reichert’s testimony was subject to the inference that he did not see Krcmar’s car when it was at the stop sign, and the jury may have concluded that he ought to have become aware of Krcmar’s intention to cross highway G sooner than he did.

2. Comparison with Krcmar’s negligence. Krcmar failed to yield the right-of-way to Reichert as required by sec. 346.18 (3), Stats. His car was found to be in low gear after the collision, anid Reichert did not claim that he failed to stop. The jury may have inferred that Krcmar saw Reich-ert, but erroneously thought there was time to cross in front of him. Reichert’s excessive speed may have contributed to Krcmar’s mistake. Presumably when the jury found Krcmar negligent, they considered his failure to yield the right-of-way and his failure to make a sufficient appraisal of the speed of Reichert’s approach.

Defendants rely upon Schlueter v. Grady where we held as a matter of law that negligence of the driver on the non-arterial highway (with respect to lookout and right-of-way) equaled or exceeded that of the driver on the arterial (with respect to speed and management and control). We pointed out',- however, that the driver on the nonarterial so completely failed to keep a lookout that she did not see the other car until the moment of impact. We there distinguished the Henschel Case where comparison of negligence was left to the jury and did so on the basis that Henschel had seen the car on the arterial and concluded that he had time to get across. In the case before us the jury was not compelled to find that Krcmar plunged into the intersection without keeping any lookout, and we conclude that under these circumstances the comparison of negligence remained in the province of the jury.

3. The sketch. After the accident Mrs. Krcmar, á Mr. and Mrs. Foubert, and a Mr. Rogers visited the scene. The two men took certain measurements with a tape. Rogers apparently read the measurements from the tape and marked them upon a rough sketch of the area. All four signed the sketch. Rogers was in California at the time of the trial. The other three testified, describing the procedure just outlined, but none of them attempted to state what the measurements had been. The sketch obviously was not drawn to scale, outlined the intersection of the- two roads, contained lines representing the tire marks, trees, and a number of other features referred to in the testimony. Many óf the 'same features appeared upon another exhibit earlier received in evidence, a plat drawn to scale upon the basis of measurements made by a witness whose qualifications appear to have been accepted by the parties. Other witnesses testified to measurements they had „made, and these corresponded very closely to the measurements marked on the sketch.

Thus there was no direct testimony disclosing the measurements made by Foubert and Rogers. The notations on the sketch were hearsay and the sketch could not' properly be admitted as independent evidence of such measurements. It happens, however, that virtually all the physical features and the measurements shown on the sketch were independently established by competent evidence, and certain notations on the sketch which in form were conclusions were obvious and almost necessary inferences from the independeritly established facts. We observe no significant fact added by the sketch nor any representation thereon which could mislead.

It has been said:

“Maps and diagrams , are frequently received in evidence with very slight proof of accuracy or authenticity when they constitute merely a picture or a summing up of evidence otherwise legitimately in the case. But when they are used to establish an independent relevant fact they are subject to the same rules as other documentary evidence.”

The sketch in question did not present the type of misleading information which caused the court to hold a diagram improper in Schwellenbach v. Wagner,

This sketch could well have been rejected, but its use was not prejudicial.

By the Court. — Judgment affirmed.

        Cheetham v. Piggly Wiggly Madison Co. (1964), 24 Wis. .(2d) 286, 290, 128 N. W. (2d) 400.

         Baumgarten v. Jones (1963), 21 Wis. (2d) 467, 471, 124 N. W. (2d) 609.

       (1963), 20 Wis. (2d) 546, 123 N. W. (2d) 458.

         Henschel v. Rural Mut. Casualty Ins. Co. (1958), 3 Wis. (2d) 34, 87 N. W. (2d) 800.

        Govier v. Brechler (1914), 159 Wis. 157, 163, 149 N. W. 740.

       (1951), 258 Wis. 526, 531, 46 N. W. (2d) 852.


author: Faiechtld, J.

text:
    Ada Enterprises, Inc., Respondent, v. Thompson and wife, Appellants.

      November 25, 1964 —
    January 8, 1965.

      For the appellants there was a brief and oral argument by Herbert A. Eggie of Milwaukee.
    For the respondent there was a brief and oral argument by Fred L. Luehring of Milwaukee.
   Faiechtld, J.

This is an action by a judgment debtor to restrain the judgment creditors from enforcing the latters’ judgment, rendered in an earlier action in the same court. There is no claim that the judgment was obtained by fraud or that there were any other circumstances surrounding the earlier action which made the judgment unconscionable at the time it was entered. Instead, the judgment debtor has alleged that its own acts, performed after the entry of judgment, have repaired the injury for which the judgment required it to compensate the judgment creditors and have thus rendered enforcement of the judgment unconscionable.

The judgment creditors assert that the court lacks jurisdiction of the subject matter of the action.

It is well settled in Wisconsin that a court with equity powers has jurisdiction of an independent action by a judgment debtor or other person affected to enjoin the judgment creditor from enforcing his judgment where the judgment was obtained by certain types of fraud or under certain other circumstances which are deemed to have made the judgment unconscionable when rendered.

It is, however, the general rule in this state that a court should decline to exercise jurisdiction of an independent action to restrain enforcement of a judgment, rendered, in another action in the same or a different court, where it is claimed that the manner of contemplated enforcement is improper or that enforcement will be inequitable because of circumstances arising after the judgment. The appropriate remedy in such case is an application after judgment in the action in which the judgment was rendered.

Not all past pronouncements on the subject have been consistent. It has been said, however, that a court of equity does not lack power to entertain the independent action, but that the rule has become so firmly settled that it is regarded as “jurisdictional error” to do so. If the court were to entertain the action, its judgment therein would not be void. The court “has no jurisdiction in the sense that it ought not to entertain jurisdiction. ...”

In one case this court concluded that the defendant in an independent action had waived any impropriety by failure to make timely objection, thus recognizing that the court did not lack jurisdiction.

As long ago as 1907, this court recognized the logical difficulty in a rule that the court which rendered the judgment must not give in an independent action the same relief it could give upon application in the action in which the judgment was rendered, but felt that precedent required adherence to the rule. Although the difficulty is still apparent, it does seem more orderly to say that if circumstances arising after judgment require what is, in effect, a modification of the judgment, the proceeding should be a continuation of the action in which the judgment was rendered.

In the instant case it clearly appears on the face of the complaint that the judgment debtor is claiming inequity in enforcement of a judgment rendered in a different action by reason of circumstances arising after judgment. Under the rule above referred to the circuit court should have declined jurisdiction and dismissed the complaint. Had it done so, Ada would have been free to apply for relief in the earlier action if it saw fit.

The circuit court, however, examined the sufficiency of the complaint upon the merits. The parties have argued the merits before us, as well as the jurisdictional point. We are convinced that the allegations of the complaint, liberally construed, would not entitle Ada to relief even if presented in the appropriate form. The complaint appears to have been carefully drafted, and there is nothing to suggest that additional material and helpful facts could be added if Ada were now to present the matter by petition in the earlier action. As above noted, the court has power to act herein, notwithstanding the rule that it ought to decline to act. It would be wasteful at this point if we did not decide the merits, but merely ordered dismissal under the rule referred to. We therefore deem it appropriate to decide the merits.

Consideration of the merits of the complaint.

Clearly the judgment has not been satisfied.

“As a general rule, a judgment for the payment of money can be satisfied only in money, unless the judgment provides for, or the owner of the judgment agrees to, some other mode of payment.
“Except where a judgment by its own terms provides otherwise, a judgment for the payment of money can be satisfied only in money, unless the owner of the judgment chooses to accept property, securities, or some other thing of value, . . .
“In order that the acceptance of something other than money may operate as a satisfaction, there must be a positive and express agreement to accept the substitute for direct payment of the judgment. . . '
“The judgment itself may, under proper circumstances, provide for the medium in which it is to be paid. But, subject to such a provision, it is ordinarily payable only in lawful money the same as any other legal obligations, that is, in whatever is legal tender at the time, and place where payment is made, unless plaintiff authorizes or accepts payment in some other medium or manner.”

We view the alleged acts of Ada as an attempt unilaterally to substitute performance of its choice for the fulfilment of the judgment. The issues between Ada and the Thompsons arising out of the excavation along the property line were litigated and resolved by a judgment that Ada must pay money. Had Ada previously made an adequate repair, as it now claims to have done, the action, if brought at all, would have produced a different judgment. Ada’s attempt to force acceptance of a different requital for its wrong, notwithstanding the judgment, is, in essence, an attempt to reopen and to relitigate the controversy.

There is an allegation that if the judgment be collected, an unjust enrichment will occur. It may well be true that if the new embankment adequately protects the Thompson property, collection of the judgment may constitute a windfall to some extent. But judicial policy is and should be so strongly against continuing the litigation of controversies once adjudicated that Ada should not now be permitted to seek, in effect, a reopening or modification of the judgment by litigating the adequacy of the repair or the extent of the windfall Ada’s own acts may have conferred on the Thomp-sons.

We take note of the allegation that the Thompsons knew of the construction of the new embankment and did not object. It is also alleged that the new embankment is located entirely on Ada’s property. The mere lack of objection under these circumstances is insufficient to constitute an acceptance of the construction of the embankment in satisfaction of the judgment. Neither, in our opinion, did it amount to conduct on the part of the Thompsons which would render their collection of the judgment inequitable or unconscionable on any other theory.

By the Court. — Order reversed, cause remanded with directions to sustain the general demurrer and enter judgment dismissing the complaint upon the merits, with costs.

        Stowell v. Eldred (1870), 26 Wis. 504; Hooper v. Smith (1889), 74 Wis. 530, 43 N. W. 556; Crowns v. Forest Land Co. (1899), 102 Wis. 97, 78 N. W. 433; Balch v. Beach (1903), 119 Wis. 77, 95 N. W. 132; Laun v. Kipp (1914), 155 Wis. 347, 145 N. W. 183; Zohrlaut v. Mengelberg (1914), 158 Wis. 392, 148 N. W. 314, 149 N. W. 280; Washburn Land Co. v. White River Lumber Co. (1917), 165 Wis. 112, 161 N. W. 547; Royal Indemnity Co. v. Sangor (1917), 166 Wis. 148, 164 N. W. 821; Kiel v. Scott & Williams (1925), 186 Wis. 415, 202 N. W. 672; Reilly v. Andro (1927), 191 Wis. 597, 211 N. W. 780; Grady v. Meyer (1931), 205 Wis. 147, 236 N. W. 569; Lau v. Harder (1936), 223 Wis. 208, 270 N. W. 341; Nehring v. Niemerowicz (1937), 226 Wis. 285, 276 N. W. 325; Amberg v. Deaton (1937), 223 Wis. 653, 271 N. W. 396; Herman v. Kennard Buick Co. (1958), 5 Wis. (2d) 480, 93 N. W. (2d) 340.

        Jackson Milling Co. v. Scott (1907), 130 Wis. 267, 110 N. W. 184; Laun v. Kipp, supra, footnote 1; Libby v. Central Wisconsin Trust Co. (1924), 182 Wis. 599, 197 N. W. 206. See, also, Parish v. Marvin (1862), 15 Wis. 271 (*247); Cooley v. Gregory (1862), 16 Wis. 322 (*303); Endter v. Lennon (1879), 46 Wis. 299, 50 N. W. 194; Irvin v. Smith (1886), 66 Wis. 113, 27 N. W. 35, 28 N. W. 351; Orient Ins. Co. v. Sloan (1888), 70 Wis. 611, 36 N. W. 388; Coon v. Seymour (1888), 71 Wis. 340, 37 N. W. 243; Cardinal v. Eau Claire Lumber Co. (1890), 75 Wis. 404, 44 N. W. 761; Stein v. Benedict (1892), 83 Wis. 603, 53 N. W. 891; Gaynor v. Blewett (1893), 85 Wis. 155, 55 N. W. 169; Pleshek v. McDonell (1907), 130 Wis. 445, 110 N. W. 269; Yates v. Yates (1914), 157 Wis. 219, 147 N. W. 60. The contrary result was reached in Johnson v. Huber (1900), 106 Wis. 282, 82 N. W. 137, and Jones v. Thomas (1904), 120 Wis. 274, 97 N. W. 950.
      Sec. 270.90, Stats., expressly provides that the trial court may enter an order declaring a judgment satisfied where it has been paid but not satisfied of record.

        Jackson Milling Co. v. Scott, supra, page 273, footnote 2; Laun v. Kipp, supra, page 366, footnote 1.

        Jackson Milling Co. v. Scott, supra, page 274, footnote 2.

        Libby v. Central Wisconsin Trust Co., supra, page 604, footnote 2.

        Johnson v. Huber (1900), 106 Wis. 282, 284, 82 N. W. 137. See Jones v. Thomas, supra, page 277, footnote 2.

         Jackson Milling Co. v. Scott, supra, page 272, footnote 2.

       49 C. J. S., Judgments, p. 1022, 1023, sec. 5S2. And see 2 Black; Judgments (2d ed.), p. 1459, sec. 987; State v. Johnson (1912), 132 La. 11, 60 So. 702; Rochelle v. Rochelle (1938), 235 Ala. 526, 179 So. 825.

       2 Freeman, Judgments (5th ed.), p. 2325, sec. 1116.


author: Currie, C. J. Hallows, J.

text:
    Karis and another, Plaintiffs and Respondents, v. Kroger Company, Defendant and Appellant: Mid-City Center, Inc., Impleaded Defendant.

      January 4

    February 2, 1965.

      For the appellant there, were briefs by Petersen, Sutherland, Axley & Brynelson, and oral argument by Eugene 0. Gehl, all of Madison.
    For the respondents there was a brief and oral argument by Edward Rudolph of Milwaukee.
   Currie, C. J.

This appeal presents these issues:

(1) Is there credible evidence in the record to support the jury’s finding that defendant Kroger was causally negligent with respect to maintaining the doorway area as safe as the nature of the place would reasonably permit?
(2) Was plaintiff’s causal negligence as a matter of law at least equal to, or in excess of, that of defendant Kroger?
(3) Are the damages found by the jury excessive?

Plaintiff Theodore Karis attempts to raise an issue with respect tó the denial to him of any damages for loss of society, companionship, and services of his wife. However, since he failed to serve and file any timely notice for review upon Kroger as required by sec. 274.12 (1), Stats., he is precluded from now raising such issue.

Negligence of Kroger.

In order to pass upon the issue of whether there is any credible evidence to sustain the jury’s finding of causal negligence on the part of Kroger it is necessary to review the material evidence bearing on this issue.

Customers of Kroger’s supermarket enter and exit through a pair of glass doors set side by side. The door through which the customer enters swings inward, while that through which he exits swings outward. Each door is opened by an automatic mechanism which is activated by the customer stepping upon a rubber mat as the customer approaches the door. Such mat thus serves as a treadle. The entrance door is to the customer’s right as he faces the door from the outside. Likewise the exit door is to the customer’s right when he faces this pair of doors from the inside. A metal railing extending at right angles to the closed doors divides the area leading to the doors both on the inside and on the outside. The inner side of the exit door is plainly marked with a sign reading “IN” with the word “only” in smaller letters below it, while the exit door is also plainly marked with a sign reading “OUT” with the word “only” in smaller letters below it.

The “In” door is also equipped with a safety mechanism which seeks to prevent the very accident which occurred in this instance, viz., the door striking a customer who mistakenly seeks to leave the store by the wrong doorway. This safety mechanism is activated by a person stepping on the rubber mat on the inside of the door. When the safety mechanism is working properly and one steps on the inside mat the door remains closed even though someone else then steps on the outside mat of the “In” door. However, if a person on the outside of the door has first activated the opening mechanism so that the door has started to open, the safety mechanism underlying the inside mat cannot (hereafter be activated so as to interfere with the continued opening of the door. An architect testified as an expert witness that the automatic doors of the type installed in this supermarket are in common use in the Milwaukee community and in food stores generally. This testimony is undisputed.

Jane Karis testified as follows: She arrived at the store on the day of the accident about 7 p. m., while it was still daylight and was accompanied by her ten-year-old daughter. She first made some purchases and checked out and handed the bag of groceries to the daughter. Mrs. Karis then went to the cashier’s window, which is situated to the left of the “In” door and is separated therefrom by a metal railing, to cash a check. She had to wait a minute or two because there were some people at the window ahead of her. After cashing her check she stepped aside so another person could come up to the window, counted her money, and turned to leave. She was opening her wallet when she told her daughter to come along. She took two steps toward the mat and. then stepped onto the right corner of the mat. She estimated that half of her foot was on this mat when she made this first step onto it. She does not believe her other foot touched the mat before the door struck her on the forehead. The door had been opened as the result of a man stepping onto the outside mat, although she had not seen him at the time she had stepped on the inside door mat.

This accident happened on Saturday. The following Monday plaintiff Theodore Karis together with an attorney went to the stdre to check on the operation of the door and there performed an. experiment to check on the automatic safety feature of the “In” door. In performing this experiment on'e of them attempted to activate the mat on the outside- of the door while the other stood on the inside mat which activates the safety mechanism. They testified that the safety mechanism operated when one placed his entire foot anywhere on the inside mat, but did not operate when one stepped on the edge of the mat so as to have the foot only partly on the mat. The attorney testified that when his foot was five to six inches onto the edge of the mat the door would open.

Supervisory employees of Kroger testified with respect to the inspection which Kroger had made prior to' the accident of the door mechanisms. Such inspection was done each morning by having one person walk through both the “In” and “Out” doors. The only way the safety mechanism of the “In” door could be tested would require inspection by a team of two persons, one of whom would step on different places on the inner mat or treadle of the “In” door while the other would step on the outer mat or treadle. Mahlandt, the store comanager; testified that the safety mechanism should have worked “no matter where you stood” on the inner mat. It was admitted that no inspection, by a team of two persons was performed during the month or two preceding the accident. Kroger adduced no evidence as to why on the day of the accident, and also two days later, the safety mechanism did not function when a person stepped on the outer five or six inches of the mat.

Conceivably the failure of the safety mechanism to operate when a person stepped only on the outer five or six inches of the mat could be due either .to a defect in original construction or to a malfunction arising during the course of operation. The verdict of the jury, however, in finding no negligence on the part of the landlord Mid-City, is only consistent with the theory that this safety mechanism was not defective when originally installed by Mid-City, but became defective during the course of operation. Under the lease between Kroger and Mid-City the duty of original installation was upon Mid-City, but the lease imposed no duty upon it to keep this part of the premises in repair.

Kroger bases its contention, that the evidence does not support the finding of causal negligence against it, on the lack of any evidence as to when the safety mechanism first failed to properly function. It particularly relies upon Pettric v. Gridley Dairy Co. (1930), 202 Wis. 289, 232 N. W. 595, and Boutin v. Cardinal Theatre (1954), 267 Wis. 199, 64 N. W. (2d) 848, and quotes this extract from the opinion in the latter case (p. 204) :

“In Pettric v. Gridley Dairy Co., supra, we held that the statute does not make an owner or employer the insurer of the safety of the frequenter and his duty to repair or maintain does not arise until he has at least constructive notice of the defect. To have notice of a defect, of course the defect must exist and, in order to impose liability, it must exist for so long a time that the party charged with responsibility by the safe-place statute has opportunity not only to discover it but to remedy the situation and avoid the accident.”

In the instant case, unlike in the Pettric and Boutin Cases, we are concerned with a safety mechanism which got out of order and failed to function. We have no hesitancy in holding that, in a situation where there is a place of employment to which the safe-place statute applies, a duty is placed upon the employer to make timely and adequate periodic inspections of any safety devices to ascertain whether they are properly functioning. This duty under sec. 101.06, Stats., of course inures to the benefit of frequenters as well as employees. The record here clearly establishes that Kroger failed in this duty. According to its practice, Kroger made an inadequate inspection on the morning of the accident. Under such circumstances we do not consider it is permitting a jury to indulge in unwarrantable speculation in concluding that, if Kroger had made an adequate inspection that morning, it would have discovered the defect. Thus the finding of negligence against Kroger can be sustained on the theory of constructive notice.

Comparison of Negligence.

Kroger’s brief, in advancing the argument that the negligence of Mrs. Karis was at least equal to, or greater, than Kroger’s negligence, acknowledges the general principle that it is only in exceptional cases that this court will determine the comparative-negligence issue as a matter of law.

Plaintiff was fully aware of the location, operation, and use of the doors including the specific door involved in the accident. She had used the door on numerous previous occasions. The doors were similar to those which she had used in other stores. She had used the door involved in the accident when she entered the store ten to fifteen minutes before. Plaintiff was an educated, intelligent, mature adult. She could not have known any more than, she did to have enabled her to use the proper door and use it in a proper manner. The door was of glass and if she had looked directly at it she should have seen the sign át eye level marking it as the “In” door. She also should have seen the man about to enter the store through this door. The only evidence which tends to explain why she did not make these observations is that she was preoccupied with closing her purse.

On the other hand, Kroger’s failure to properly inspect and maintain in good working order the safety mechanism, which the jury was warranted in concluding would have prevented the accident, was also a serious breach of duty upon Kroger’s part. While the question of whether we should determine the comparative-negligence finding as a matter of law and find the negligence of Mrs. Karis to have been at least equal to that of Kroger’s is a close one, we conclude that the comparison in this case was for the jury and not the court.

Are the Damages Excessive?

Kroger attacks the jury’s award of $5,000 to Mrs. Karis for her injury as being excessive.

At the time of the accident Mrs. Karis was an attractive young woman twenty-nine years of age. The; metal edge of the door struck a vertical blow to her right foréheád inflicting a cut just above the eyebrow of nearly an inch in length and a quarter inch deep. Her wound was first dressed at the Milwaukee County Hospital. She was then taken to another hospital where Dr. Casey, a plastic surgeon, operated on. her as an outpatient for about forty minutes and then sutured the wound. During the first three weeks following the accident she had severe pain, had difficulty sleeping, and consumed from eight to 10 aspirins per day. The headaches continued for many months, and when severe were accompanied by nausea and vomiting.

In January, 1962, Dr. Docktor, another plastic surgeon, performed another operation on her forehead. This consisted of sanding or abrasing the outer layer of skin from her forehead around the wound scar, so that the skin would grow back evenly and the scar would not be as noticeable. The removed portion of the skin measured about three inches wide and an inch anda half high.

Because she continued to suffer from headaches, she consulted Dr. Schaeffer, a nerve specialist, in June, 1963, and he treated her five times between then and trial in December. He testified that it was his medical opinion Mrs. Karis had suffered a cerebral concussion as well as an injury to the right supraorbital nerve from the. accident, arid that ás a result, she was left with symptoms referred to as a post-concussion syndrome. These symptoms are manifested chiefly by headaches and a feeling of dizziness.

There is also testimony that the area of the dermabrasion performed on the forehead by Dr. Docktor in both cold and hot weather gets redder than the remaining skin area of the forehead. The wound scar which is about one-half inch long has a whiteish color. In winter Mrs. Karis experiences a burning feeling in the wound area and at other times an itching sensation. During the thirty-month period between the accident and date of trial Mrs. Karis consumed five 250-tablet bottles of aspirin because of her headaches.

Our review of the evidence causes us to conclude that while the $5,000 damages awarded by the jury are high, we are not inclined to hold them to be excessive. We are particularly reluctant to disturb a jury’s finding of damages for personal injuries as being excessive where, as here, they have received the approval of the trial judge,

By the Court. — Judgment affirmed.

Hallows, J.

(dissenting). I dissent on the ground the plaintiff’s attempt to exit from an “In” door was at least as negligent as the defendant’s failure, to make an adequate inspection which would have revealed the five or six-inch strip of the treadle mat did not function.

       This statute provides:
      “A respondent adverse to the appellant upon the latter’s appeal may have a review of any rulings prejudicial to him by serving upon the appellant at any time before the case is set for hearing in the supreme court a notice stating in what respect he asks for a reversal or modification of the judgment or order or portion thereof appealed from.”

       The lease required Mid-City to make exterior repairs including “exterior doors.” The “In” and “Out” doors referred to in this opinion were not exterior doors because there was another set of outer doors.


author: Fairchild, J.

text:
    Gross Common Carrier, Appellant, v. Quick-N-Clean Corporation, Respondent.

      January 4 —
    February 2, 1965.

      For the appellant there was a brief by .Brazeau, Brazeau, Potter & Cole of Wisconsin Rapids, and oral argument by Richard S. Brazeau.

    For the respondent there was a brief by Schlotthauer, Jenswold, Reed & Studt of Madison, and oral argument by John F. Jenswold.

   Fairchild, J.

Under the contract between the shipper and Associated Truck Lines, the receiving carrier, the washer could only be delivered upon surrender of the original bill of lading properly endorsed. In order to obtain this bill of lading, Quick-N-Clean would have had to pay $980 to the bank at Brainerd for Clesco’s account. It is conceded by all that under the applicable law, the receiving carrier was liable to Clesco for improper delivery, and Gross was liable for reimbursement.

The stipulation indicates, however, that the cash-on-delivery arrangement between the shipper and the carrier was inconsistent with the contract between Quick-N-Clean and Clesco. Under the latter, the carrier was to be permitted to deliver the goods on order of Quick-N-Clean, and Gilling-ham would have been entitled to delivery upon payment of $2,600 to the Adams bank for the account of Quick-N-Clean. Plaintiff has not established that Clesco had any right, urn der its contract with Quick-N-Clean, to withhold delivery until the balance of the purchase price was paid to Clesco in cash. Since Clesco owed Quick-N-Clean more than $980, the parties may well have intended that the balance due on the washer would be merged in the account between them.

There is a suggestion in the record that Clesco is in financial difficulties. We may surmise that Clesco may have shipped the washer c. o. d. in the hope that Quick-N-Clean would pay cash rather than suffer delay by insisting upon its right to obtain possession on open account. Gross’ mistake frustrated the plan, but it has not been shown that Quick-N-Clean received any advantage to which it was not entitled under its contract with Clesco.

A right to restitution is governed, by equitable principles. If Gross’ delivery of the washer without requiring cash settlement can be said to have conferred a benefit on Quick-N-Clean under these circumstances, we do not deem it inequitable for Quick-N-Clean to retain it.

By the Court. — Judgment affirmed.

Beilfuss, J., took no part.

       49 USCA, p. 114, sec. 20 (11).

       See Nelson v. Preston (1952), 262 Wis. 547, 550, 55 N. W. (2d) 918; Amalgamated Asso., etc., Div. 998, v. Danielson (1964), 24 Wis. (2d) 33, 36, 128 N. W. (2d) 9.


author: Hallows, J. Gordon, J.

text:
    Aetna Casualty & Surety Company and others, Appellants, v. Osborne-McMillan Elevator Company, Respondent.

      January 4 —
    February 2, 1965.

      For the appellants there were briefs by Francis J. Wilcox and Wilcox & Sullivan, all of Eau Claire; by Donald N. Clausen and Clausen, Hirsh, Miller & Gorman, r 11 of Chicago, Illinois; and by R. E. Anderson and Hughes, Anderson, Davis & Witkin, all of Superior; and oral argument by Francis J. Wilcox.

      For the respondent there was a brief by Peter Dorsey, William A. ■ Whitlock, and Dorsey, Owen, Marquart, Windhorst & West, all of Minneapolis, Minnesota, and by Robert H\ Gee and Powell, Sprowls & Gee, all of Superior, and oral argument by Robert H. Gee and Peter Dorsey.

   Hallows, J.

This appeal raises the question of what is an explosion as that term is used in the insurance policies applied to the insured’s business of storing and handling grain in Superior, Wisconsin. The word “explosion” is not defined in the policies but the exclusion clause of the endorsement provides: “Loss by explosion shall include direct loss resulting from the explosion of accumulated gases or unconsumed fuel within the firébox (or combustion chamber) of any fired vessel or within the flues or passages which conduct the gases of combustion therefrom. However, this Company shall not be liable for loss by explosion, rupture or bursting of:, (a) steam boilers, steam pipes, steam turbines or steam engines; or (b) rotating parts of machinery caused by centrifugal force; . . . The following are not explosions within the intent or meaning of these provisions: (a) concussion unless caused by explosion, (b) electrical arcing, (c) water hammer, (d) rupture or bursting of water pipes.”

The tank in questioii was erected in the fall of 1958, on a re-enforced concrete platform and was located between a battery of concrete storage bins and the three other steel tanks which extended in a line along a slip in Superior bay. The tank was a monolith constructed by welding steel plates together to form the wall which was welded to a base plate. The circular base plate was constructed by welding the ends of eight-foot-long narrow plates of an inch thick and this base plate was secured to the concrete platform by some 128 bolts placed two feet apart in a circle having a diameter of approximately 80 feet. The bolts were embedded in the concrete and their threaded ends extended from three or four inches above the concrete surface of the slab. The tank was 80 feet high and a conical steel plate set on steel rafters formed its roof. An enclosed gallery containing a conveyor belt was connected to the concrete bins and ran across the top of all four steel tanks.

The tank was adequately designed to support and contain 361,000 bushels of number one dark northern spring wheat with a conventional margin of safety. The tank had been filled during June of 1961 when the air temperature was around 93 degrees. The last movement of the grain was on June 29th, when 4,000 bushels of wheat were removed. On January 17, 1962, the tank contained 361,000 bushels of wheat which weighed 6Ó pounds per bushel, or 21,660,000 pounds. Shortly before 1 a. m., when the temperature had reached approximately 27 degrees below zero after having fallen from 30 degrees above zero at 6 p. m. on January 13th, the tank suddenly burst into three major segments.

There is no substantial disagreement in the expert testimony that the initial fracture of the tank started at the bottom of the tank wall over a discontinuity or “notch” in the base plate, which was caused by an incomplete weld where a small filler plate )4th-inch wide had been placed to fill a gap between two sections of the base plate. The steel plate and tank were brittle because of the sudden drop in temperature and because of the low temperature the steel had lost most of its ductile qualities. It was generally agreed in the evidence this steel tank would normally contract more than two inches in circumference from its size at 93 degrees during a drop in temperature to 27 degrees below zero. The experts agreed that the stresses present in the tank wall from contraction instead of distributing themselves equally throughout the wall necessarily flowed around the notch where they became concentrated and too great for the cold steel to withstand. The wall of the tank split from bottom to top through the plates and not following the welds. Following the initial fracture the other two fractures almost instantaneously occurred. This fracturing consumed one-tenth of a second or from one twenty-fifth to one-fiftieth of a second, and all the movement of the grain and the metal tank ceased in about two seconds.

After the occurrence one segment of the tank weighing approximately 87,100 pounds was at its nearest point 108 feet from where it has been attached to the concrete platform. Another segment weighing approximately 75,921 pounds was wrapped backward around an adjoining steel tank which was caved in about 13 inches to a height of 30 feet and a distance of 22 feet along its circumference. The third segment weighing approximately 145,163 pounds was found in the slip adjacent to the pier on which the tank had been located. The bottom course of this segment was 94 feet from where it had been attached to the concrete platform. Of the 128 steel anchor bolts, about half of them had snapped in tension and the other half had been sheared off. A portion of grain was found 187 feet from the outer edge of the tank and generally covered a larger area than such volume would in a conical shape of repose. Nor is there any question that when the tank gave way, a. loud noise and ground vibration were produced. Witnesses testified they heard a “terrific crash,” “a giant roar,” “a sudden capow — something hit,” and “a loud sound comparable to that made by a jet hitting the sound barrier.”

At the close of the trial the insurers moved for a directed verdict and on this appeal contend that the evidence did not show an increase in the internal pressure or force over that of weight and position of the grain in the tank, that the first fracture of the wall of the tank was a cold-weather-brittle fracture initiated by an incomplete weld, that the latent or potential energy in the stored grain was not converted to active or kinetic energy until after the fracture split the wall and therefore although there was suddenness in the occurrence accompanied by noise, there was no explosion. The insured argued then as now that the evidence presented a jury question of whether an explosion had occurred and that it was not necessary to have an increase in internal force in the grain to constitute an explosion.

The trial court although inclined to agree with the insurers nevertheless submitted the case to the jury adopting in its instructions the insured’s view of what constituted an explosion.- The. question presented to the jury was, “Was there an explosion involving Tank A on January 17, 1962?” In instructing the jury the court included Webster’s New International Dictionary (2d ed., unabridged 1960), definition, the American College Dictionary definition of an explosion, and then proceeded to give the following synonyms from the Synonyms Finder for the word “explosion“Violent bursting with noise, sudden discharge, fulmination, detonation, shock, ignition, shattering sound, concussion, collapse, blast, report, volley, shot, crack, pop.” The court also instructed there may be an explosion without a sudden development of internal force or pressure, the pressure need not be unusual or abnormal or suddenly produced, and there may be an explosion without a sudden expansion of the volume of the contents of the contained substance. The trial court on motions after verdict recognized these instructions were tantamount to directing a verdict for the insured but justified them as being correct on the theory “an explosion is what an explosion does” and “an explosion is an idea- of degree.” We consider the instructions prejudicially erroneous in their interpretation of the word “explosion” in' the policies as applied to the facts and especially in including the synonyms.

Because one of the policies insured grain stored in five states, was negotiated in Minnesota and countersigned by a Wisconsin agent, a preliminary question arose of what state law applied. The court determined the Minnesota substantive law was controlling and no issue is taken with that ruling on this appeal. There appears to be no ruling of the Minnesota supreme court on the question involved and consequently the applicable rule is that when an issue involves foreign law and there is an absence of any foreign decision, the courts of this state must look first to their own decisions as controlling and secondarily to the general law or decisions of other jurisdictions. Gulbranson-Dickinson Co. v. Hopkins (1919), 170 Wis. 326, 175 N. W. 93, 94; De Lorenzo v. Supreme Lodge, Knights of Pythias (1936), 222 Wis. 141, 268 N. W. 217; Harper v. Hartford Accident & Indemnity Co. (1961), 14 Wis. (2d) 500, 111 N. W. (2d) 480. The trial court in its decision rejected Bauman v. Midland Union Ins. Co. (1952), 261 Wis. 449, 53 N. W. (2d) 529, and relied on language in Lever Brothers Co. v. Atlas Assurance Co. (7th Cir. 1942), 131 Fed. (2d) 770, to the effect that “an explosion is an idea of degree” and an explosion is as an explosion does.

The trial court was in error in not applying Bauman, which involved the question of whether a silo burst as a result of an explosion of carbon-dioxide gas formed by the fermentation of the silage or whether the silo was destroyed by reason of its own defects from overloading or from the sheer weight of the silage contained therein. After reviewing the evidence this court stated there was no credible evidence on which a jury could find the bursting of the wall of plaintiffs’ silo was caused by an explosion, or by the pressure of gas and therefore it was error not to have granted the defendants’ motion for a directed verdict. The plain doctrine of the case is that an explosion as applied to silage in a silo or contents of a container must include the element of an active force independent of or in addition to the force of weight and height of the contents which seek a sudden and violent release by breaking the container. Static or potential force or pressure resulting only from the weight of the contents in a container may cause a container to split open and release the contents but such an occurrence is hardiy looked upon by the average person to be an explosion.

The Lever Brothers Case involved a steel tank some 60 feet in diameter and SO feet in height approximately %ths filled with cottonseed oil weighing 6,292,000 pounds. The plaintiff claimed an explosion occurred when the tank burst as a result of an increase of internal pressure caused by steam from a defective heating coil in the bottom of a tank. The insurer argued the tank failed because of the great stresses within the walls of the container and there was no credible evidence of an increased pressure inside of the tank sufficient to cause an explosion. The court decided there was evidence sufficient to sustain the verdict on the plaintiff’s theory and then went on to answer the defendant’s argument by stating the container could have exploded because of instability of .its walls due to great stresses therein within the common and accepted understanding of the term. We do not agree this view is the common and accepted understanding of an explosion. Such a view confuses an explosion as commonly understood with other phenomena which involve similar destruction or damage.

Most decisions agree the word “explosion” in an insurance policy should be given its common and ordinary meaning by a court. However, a dictionary definition cannot, always be taken as controlling. The latest edition of Webster’s International Dictionary (3d. ed., unabridged 1961), gives as a definition of “explosion,” “a violent expansion or bursting that is accompanied by noise and is caused by a sudden release of energy from a very rapid chemical reaction, from a nuclear reaction, or from an escape of gases or vapors under pressure (as in a steam boiler).” This definition is not quite the same as earlier definitions and in itself would hardly apply to grain in a storage tank and seems to be confined to nuclear or chemical activity causing pressure. Other dictionary definitions, while helpful, are not decisive; if they were, the judging process would be easy. Many definitions of explosions of varying types may be found in Black’s Law Dictionary (4th ed.), p. 689. See also 22 Am. Jur., Explosions and Explosives, pp. 126, 127, sec. 2, and Anno. 28 A. L,R. (2d) 995.

It is argued that the meaning of the word “explosion” is defined indirectly by the use in the exclusion clause of the words explosion, rupture, or bursting in reference to steam boilers, pipes, turbines and engines and rotating parts of machinery caused by centrifugal force. We do not agree that because the terms “explosion, rupture or bursting” are used in a series they are synonymous and that all ruptures and burstings of containers other than steam boilers, pipes, turbines, are explosions. Allen v. Insurance Co. of North America (1954), 175 Pa. Super. 281, 104 Atl. (2d) 191. Likewise, because of the exclusion of phenomena such as concussion, electrical arcing, rupture and bursting of water pipes which ordinarily do not constitute an explosion, it cannot be logically argued the meaning of the term “explosion” is thereby enlarged.

There seems to be little dispute in the cases that an explosion as commonly understood is not one element such as an increase in pressure or noise or a result such as a fractured container, but the sum total of several elements not the least of which consists of an active force which suddenly and violently exerts itself in some form. In explodable substances the force exerts itself primarily in the substance through a chemical change or nuclear reaction or other process while in a nonexplodable substance in a container the active force does not change the composition of the substance but acts through the substance in breaking out of the container. In cases of confined substances if the container fails because of structural weakness so as to let out the contents as distinguished from the contents bursting out because of its force, there is. no explosion even though it might be said the tank ruptured or burst open. The probability of grain like water which is not an explodable substance being an element of an explosion consists in its ability to contain or harbor active forces or energy. In explosions involving á nonexplodable substance there must be an internal active force created which breaks out of its confinement. In the case of grain such active force must be in addition to that of the normal static force exerted on the inside of a container because of the weight and position of the grain.

The necessity of the existence of an active force is the distinguishing characteristic of what has been held to be .an explosion in the decided cases. In Bower v. Aetna Ins. Co. (D. C. Tex. 1944), 54 Fed. Supp. 897, it was held that a hot-water-heating system exploded during cold weather when a radiator burst and water was forced from the radiator. The case was decided on the principle there was “a shattering by a sudden and intense pressure in distinction to rupture; a sudden bursting of breaking up or in pieces, from an internal or other force.” Likewise, apt explosion was found in Sargent v. Mechanics Ins. Co. (1933), 216 Iowa 688, 247 N. W. 267, when a coal-burning furnace having been fixed for the night was found two and one-half hours later with the pipe to the chimney lying on the floor and the furnace door open. In Crombie & Co. v. Employers’ Fire Ins. Co. (Tex. Civ. App. 1952), 250 S. W. (2d) 472, a leak occurred in the ammonia-valve packing in. a refrigeration apparatus. The court found an explosion on the basis the packing had been blown out by the ammonia under a pressure of 190 pounds in the line. Here, an active force caused by the compression was seeking to retransform the liquid to a gaseous state when the container was no longer able to withstand the pressure. In American Casualty Co. v. Myrick (5th Cir. 1962), 304 Fed. (2d) 179, also involving ammonia in a refrigeration plant, the court stated the common characteristic of an explosion of a confined substance was its sudden and with varying degree of violence breaking out of its confinement as a result of internal pressure. In Jersey Ins. Co. v. Heffron (4th Cir. 1957), 242 Fed. (2d) 136, the question was whether the walls of a building were blown out in an explosion or simply collapsed, and the court considered an explosion as one of “compression and sudden, violent expansion of air; in other words, a violent release of energy causing a rupture, accompanied by noise.”

The increase in internal pressure over the normal static pressure of the weight of the substance requirement or the necessity of the presence of active force is well illustrated in water-hammer cases. In L. L. Olds Seed Co. v. Commercial Union Assurance Co. (7th Cir. 1950), 179 Fed. (2d) 472, the court held a water pipe exploded against the argument of the insurer that it merely ruptured because cold water cannot explode. In a water hammer there is an increase in the pressure in the flow of water because of sudden stoppage of water and this active pressure in some cases is sufficient to suddenly break the water pipe. The necessity of “pent up” or buildup of active pressure as an element of an explosion was recognized in Commercial Union Fire Ins. Co. v. Bank of Georgia (5th Cir. 1952), 197 Fed. (2d) 455, where the court held the water hammer was an explosion under the facts.

Where there was no sudden buildup of internal pressure or active force in a water pipe and such pressure as existed caused a slow separation of a faucet in a bathroom from the pipe at a slip joint, it was held that the constant exertion of internal pressure which forced the slip joint apart slowly did not amount to an explosion. Reynolds v. Great American Ins. Co. (1952), 334 Mich. 1, 53 N. W. (2d) 594. In a case involving wet grain in an elevator, the court in Hart-Bartlett-Sturtevant Grain Co. v. Aetna Ins. Co. (1956), 365 Mo. 1134, 293 S. W. (2d) 913, found the facts presented a jury question under the insurance policies of whether an explosion or a flood caused the damage. Flood water had found its way into the bottom of the elevators and had wetted the grain stored therein. The jury found the dislocation of the hopper bottoms of the elevators and the. resulting damage to the hopper and the grain were caused by a buildup of pressure from the gases generated by the wet grain or by the gradual expansion of the grain. To the same effect, see Chicago, R. I. & P. R. Co. v. Aetna Ins. Co. (1957), 180 Kan. 730, 308 Pac. (2d) 119.

The characteristics and nature of an explosion are well stated in Tires, Inc. v. Travelers Fire Ins. Co. (4th Cir. 1958), 253 Fed. (2d) 411, a case involving a water-main rupture which was held not to be an explosion. The court found no error in the instructions to the jury which included the concept of an internal pressure. The court said there “must be pressure for an explosion to take place.” It need not be unusual, abnormal, or suddenly produced. Explosion used in “its ordinary sense and related to the common experience of man presupposes that there is first of all a building up of pressure from within or from some internal force, that because of this internal building up of pressure and as a direct result thereof there is an expansion, the pressure can no longer be contained and there is a bursting forth from within caused by an internal force with a possible violent noise and reaction.”

On this appeal the insurers argue there existed in the grain no active or kinetic force but only the static force resulting from weight and position. Their experts testified that grain does not compress so as to have any modulus of elasticity or the desire to regain its shape. The grain under this view could only settle and compress into a hard core which exerted no active force to expand, but merely resisted statically further compression when the steel tank attempted to follow the law of its nature and contract, as the temperature lowered. The experts for the elevator company contended that the wheat did have a modulus of elasticity and because of the compression of the wheat there existed an active force in addition to the force of weight which exerted a counterpressure against the contraction of the tank. Consequently, as we view the evidence and the reasonable inference which might be drawn, a jury question was presented concerning the existence of an active force in the wheat and its relation to the cold-weather-brittle fracture.

This view of the evidence precludes a reversal on the ground there was error in refusing to direct a judgment for the insurers, but because of the prejudicial errors in the instructions they are entitled to a new trial. In view of this disposition of the appeal, it is not necessary to comment on the other questions raised in the briefs excepting the court’s failure to give an instruction tendered by the insurers. This instruction provided:

“If you believe that Tank ‘A’ was destroyed by reason of conditions of temperature, or defects in, or the condition of the tank, itself, or by reason of the brittleness of the steel comprising the side walls of the tank, or by the sheer weight of the wheat within the tank, or by reason of the combination of all or any of such conditions, and if you believe the destruction of the tank was not caused by expansion of its contents, or by an increase in internal force or pressure within the tank, then you are instructed that there was no explosion of Tank 'A.’ ”

Where there is a conflict in the evidence and inconsistent theories on the cause of the event are advanced, we believe instructions encompassing both theories should be given. On the evidence as presented, the insurers were entitled to have this instruction given.

By the Court. — Judgment reversed, and a new trial granted on the question of liability.

Gordon, J.

(dissenting). In my opinion, the manner in which the steel storage tank suddenly burst into three separate sections and spewed its contents over the area (as far as 187 feet from the base) to the accompaniment of a loud noise warranted the jury’s factual finding that this was an explosion. I would affirm.

I am authorized to state that Mr. Justice Fairchild and Mr. Justice Heffernan join in this dissent.