text:
    McWhorter and others, Plaintiffs and Respondents, v. Employers Mutual Casualty Company and another, Defendants and Appellants: Luebke, Defendant.

      September 8

    October 5, 1965.

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

    For the respondents there was a brief by Blakely, Long, Grutsner & Jaeckle of Beloit, and oral argument by J. Richard Long.

   Hallows, J.

The rules governing summary judgments are well known and have been frequently stated and explained by this court. Under the rule of Hyland Hall & Co. v. Madison Gas & Electric Co. (1960), 11 Wis. (2d) 238, 105 N. W. (2d) 305, and Dottai v. Altenbach (1963), 19 Wis. (2d) 373, 120 N. W. (2d) 41, we first examined the moving papers and documents to determine whether the moving party has made a prima facie case for summary judgment under sec. 270.635 (2), Stats., and if he has, we then examine the opposing party’s affidavits and other proof to determine whether facts are shown which the court deems sufficient to entitle the opposing party to a trial. If the material facts are not in dispute and if the inferences which may reasonably be drawn from the facts are not doubtful and lead only to one conclusion, then only a matter of law is presented which should be decided upon the motion. Voysey v. Labisky (1960), 10 Wis. (2d) 274, 103 N. W. (2d) 9; Rabinovitz v. Travelers Ins. Co. (1960), 11 Wis. (2d) 545, 105 N. W. (2d) 807; Bond v. Harrel (1961), 13 Wis. (2d) 369, 108 N. W. (2d) 552.

The material evidentiary facts in this case are not in dispute but it is contended by the appealing defendants that different inferences can reasonably be drawn therefrom in respect to the essential ultimate fact of the ownership of the car and thus a trial is required. We think not.

On Friday, July 6, 1962, Shirley Luebke went to the used-car lot of Yunker in Oconomowoc and entered into a transaction involving a 1953 Oldsmobile with Ronald Rent-meester, a salesman for Yunker. She signed what is entitled a car-purchase order which called for the placing of an order for the Oldsmobile and which “requires the acceptance of the seller or its authorized agent.” A place for acceptance was provided for the “Dealer’s or officer’s signature,” which was left unsigned. Although the salesman was also required to sign this order, the order stated his signature was “For information only.” The document also provided it contained all the agreements of the parties. The price of the auto was $250 and was to be financed by some finance company through a conditional-sales contract. The $50 deposit and $7.50 sales tax were paid by Luebke and the balance was to be paid in six instalments of $35.91. The document was never signed by Yunker but a copy was given to Luebke. She was also given the keys to the car by the salesman and the dealer-license plates for use on the car, but the used-car sticker on the Oldsmobile was not removed.

According to plaintiffs’ affidavit, which incorporates part of an adverse examination of Luebke, she was to return the car to Yunker on July 10th for a checkup and to complete the signing of papers. Luebke had previously owned a car which was junked at Brodhead, and she intended to drive to Brod-head to see if she could salvage the license plates and get insurance. On Monday, July 9th, the day the accident occurred, Yunker prepared the following documents concerning the transaction: (1) A conditional-sales contract dated July 9th; (2) a motor vehicle dealer’s statement of tax payment showing the sale as July 9th; (3) a car invoice dated July 9th showing details such as the financing cost, the total-time price, the name of the financing company and other details which were not on the order signed by Luebke on July 6th, and (4) a draft drawn by Yunker on the finance company. The certificate of title to the Oldsmobile was never assigned by Yunker or filled out. None of the above documents, even though some of them required Lueb-ke’s signature, was signed by her or delivered to her. In an affidavit on behalf of defendants it is stated that when knowledge of the accident was received, counsel advised Yunker to cease processing the transaction. After the accident, Yunker sued Luebke for the balance of the purchase price of the car, alleging an offer to purchase which was accepted. A tender of $285.95 was made by Luebke’s attorney in the case on the theory she had damaged property of Yunker which she held under bailment and not a sale, and the case was dismissed on stipulation without any finding on the merits. The affidavits of the defendants set forth parts of an adverse examination of Luebke to the effect she purchased the car on July 6th and was going to drive to Brodhead to get the license plates off her junked car and insurance for the car. There is an affidavit by the salesman in which he stated he placed no restrictions upon Luebke in driving the automobile and did not tell her she was to bring it back to Yunker.

It appears all the facts relating to the transaction were brought out in the affidavits, documents, and adverse examinations ; there was no claim by the appellants to the contrary. This is a simple case of a transaction between two people evidenced by a document which provided the entire transaction had to be in writing and “all the terms of the agreement are printed or written herein.” We think the trial court was correct in deciding a contract was not entered into because the offer to purchase had not been accepted by Yunker according to the terms of the offer to purchase. This view is compelled also by the action of Yunker in preparing the documents on July 9th, which would normally constitute the sale of the car.

It has been held a car-purchase order signed by the customer but not accepted by the dealer in writing as required was not a sale of the automobile. Midland Loan Finance Co. v. Madsen (1944), 217 Minn. 267, 14 N. W. (2d) 475. The defendants contend Albright v. Stegeman Motor Car Co. (1919), 168 Wis. 557, 170 N. W. 951, is controlling in that the dealer can accept such an order by his action. It is argued the order of purchase was accepted by the down payment and the giving of the possession of the car to Luebke, which evidenced an intention not only to accept the order but to pass title. The down payment cannot be an acceptance of the order since it was a part of the offer and the giving of possession of the car by the salesman was contrary to the method proposed in the offer for its acceptance. Since the salesman could not bind Yunker by its “For information only” signature on the order, his giving possession of the car could hardly constitute acceptance which would bind Yunker to a contract. In Albright the order for a truck to be manufactured by the offeree, which required by its terms a written acceptance, was held to be accepted by the action of the offeree in manufacturing the truck, but there the acts held to be an acceptance were by one in authority and the party itself. Nor will we assume the salesman, when he gave Luebke the dealer’s license plates for use, intended to pass title to the car and to violate sec. 341.55, Stats., and subject himself or Yunker to a possible penalty of $200 or six months in jail, or both, for allowing the wrongful use of license plates. We considered the use of dealer’s license plates one of the significant elements in not passing title to an automobile in somewhat similar circumstances in Klapps v. American Ins. Co. (1965), 26 Wis. (2d) 664, 133 N. W. (2d) 248. We believe no reasonable inference that a sale was consummated and title passed can be drawn from letting Luebke use the Oldsmobile under the circumstances and with the used-car sticker and the dealer’s license plates on the car.

Assuming arguendo the offer was accepted, we would still be faced with an agreement to sell and not an agreement of sale. This was not a sale on open account but one to be financed by a conditional-sales contract by which the seller retains title to the car for security purposes. Generally, title to personal property sold passes according to the parties’ intention. Sec. 121.18, Stats. In view of the method of financing, only one conclusion can be drawn, namely, the title was not to pass until the conditional-sales contract was signed and other documents of title delivered. Such a sale would be governed by sec. 218.01, referred to in the order to purchase.

It is true, the affidavit on behalf of the defendants states it was the intention of the salesman to transfer ownership at the time he gave Luebke the car. This is but a conclusion in the affidavit of counsel for the defendant and would not be admissible as evidence at the trial. The statements of Luebke that she “purchased” the car and she was pleased with the “purchase” are conclusions or opinions on her part of the ultimate fact and not evidentiary facts. These statements must be disregarded. We place little weight on the lawsuit in Waukesha county to recover the balance of the purchase price of the car. The case was settled and dismissed without an adjudication of its merits.

On the record before us, the appellants do not by their affidavits convince us any more than they did the trial court that there ought to be a trial on the facts. We agree the only reasonable inference which can be drawn is that title to the Oldsmobile was still in Yunker at the time of the accident and consequently its insurance policy covers Shirley Luebke.

By the Court. — Judgment affirmed.


source: Caselaw Access Project

author: Gordon, J.

license: Public Domain

text:
    Stack Construction Company, Respondent, v. Chenenoff and another, Appellants.

      September 8

    October 5, 1965.

      For the appellants there was a brief by Love, Davis, Mc-Graw, Huber & Brown of Waukesha, and oral argument by Robert T. McGraw.

    For the respondent there was a brief by Grootemaat, Cook & Franke, attorneys, and Robert E. Cook and Thomas I. Drought of counsel, all of Milwaukee, and oral argument by Robert E. Cook.

   Gordon, J.

The testimony establishes with clarity the fact that the fill which under the contract was to be “loaded and trucked from site at extra of $0.80 per yard” was not actually loaded or carried away. This phase of the work was simply not performed. The trial court recognized this fact but nevertheless concluded that the plaintiff “should not be penalized” because of it.

The record establishes that more than 107,000 cubic yards were actually cut by the plaintiff, and it is entitled to compensation for such work. However, we are unable to accept the trial court’s conclusion that such additional work should be paid for at the premium price of $0.80 per cubic yard. The nature of such additional work was clearly not comparable to that for which the contract price was established in the sum of $0.80 per cubic yard.

The written contract, which arose when Mr. Chenenoff on December 19, 1961, accepted the plaintiff’s bid based on the November plan, was never formally altered. While there was a new site-grading plan dated December 8, 1961, the record establishes that it was not adopted by the parties, and, thus, the new plan cannot be construed as representing a modification of the original contract.

The original contract is not ambiguous in its terms, and it is the court’s duty to construe it as it stands. George J. Meyer Mfg. Co. v. Howard Brass & Copper Co. (1945), 246 Wis. 558, 574, 18 N. W. (2d) 468. Nevertheless, the plaintiff did not perform all the work called for under the contract, and this appears to have been acceptable to the defendant. Under such circumstances, there is no sound basis for granting recovery to the plaintiff for work it did not perform at rates which contemplated special duties which never materialized.

There were, however, added services which were not expressly provided for in the contract but were nevertheless performed by the plaintiff and for which the defendant should reasonably have recognized his obligation to pay. Fieldhouse Landscape v. Gentile (1961), 12 Wis. (2d) 418, 107 N. W. (2d) 491; Estate of Beilke (1953), 263 Wis. 372, 57 N. W. (2d) 402; Estate of St. Germain (1945), 246 Wis. 409, 17 N. W. (2d) 582; Wojahn v. National Union Bank (1911), 144 Wis. 646, 129 N. W. 1068.

It is undisputed that 107,000 cubic yards should be paid for at the contract price of $0.31 per cubic yard. However, Stack claims that it moved approximately 155,000 cubic yards of dirt as of June 18, 1962, as reflected in the following testimony of its president, Mr. Stahoski :

“Q. And how did you arrive at this number of 155,000 cubic yards ?
"A. By our original calculations that we had based on November 27th, which was 107, plus 20, which is 127,000 yards, which had to be moved and — it was left on the site; and we moved another 23,000 yards between the sidewalk— between the property line and the curbing, and we moved about 5,000 cubic yards of topsoil, which amounts to 155,-000.”

Based on the above figures, it would appear that there remain 48,000 cubic yards of dirt for which there must be an accounting. Mr. Chenenoff claims that of these remaining cubic yards, 28,000 cubic yards were the result of two extra contracts entered into in May, 1962, for which he paid Stack the sum of $7,704.75.

Mr. Chenenoff also refers to the testimony of Stack’s foreman, Mr. Banaszak, to the effect that the major difference between the actual work done (155,000 cubic yards) and the November plan (128,000 cubic yards) was a result of the two extra contracts entered into in May, 1962. However, the record is not completely clear that 28,000 of the 48,000 cubic yards were represented by the two extra contracts in May, 1962.

Mr. Chenenoff alleges that the compensation for only 20,000 .cubic yards remains undetermined and that the payment thereon should not be evaluated at the premium rate of $0.80 per cubic yard because these 20,000 cubic yards did not involve premium work.

As noted in Mead v. Ringling (1954), 266 Wis. 523, 528, 64 N. W. (2d) 222, 65 N. W. (2d) 35, there is an implied promise on the part of Mr. Chenenoff to pay under quantum meruit the reasonable value of the services to the plaintiff which were involved in Stack’s cutting more than the 107,000 cubic yards, exclusive of the work done under the two extra contracts of May, 1962. See Barnes v. Lozoff (1963), 20 Wis. (2d) 644, 652, 123 N. W. (2d) 543.

The nature of the work performed by the plaintiff relative to such 20,000 cubic yards (assuming that to be the correct amount) would appear to be somewhat related to that which was done with reference to the original 107,000 cubic yards which are specified in the contract. If this be true, it may be appropriate that the plaintiff be compensated therefor at the rate of $0.31 per cubic yard.

The foregoing presupposes that the arm’s length contract between the parties represents a fair and reasonable way of arriving at the going rate of pay in the community for this service. However, we deem it the better course to remand this cause to the trial court with instructions to enter a judgment which reflects an allowance of $33,100 for the 107,000 cubic yards at $0.31 per cubic yard and also provides for the recovery in quantum meruit for any additional work performed by the plaintiff for which the written contract did not provide a method of payment and which was not covered by the extra contracts of May, 1962. Any payments made by Mr. Chenenoff to date would be credited. The trial court, upon the remand, will be bound by our conclusion that the plaintiff is not entitled to recover at the contract price of $0.80. However, the trial court will not consider itself bound by our view that $0.31 may be a fair price in quantum meruit; nor will the trial court be obliged to adopt our impression that the cutting of 20,000 cubic yards remains uncompensated.

The trial court may hold additional hearings if, in its opinion, such hearings are desirable. The trial court’s dismissal of the counterclaim is entirely supported by the record, and no further proceedings attendant to such counterclaim need be had.

By the Court. — Judgment reversed, and cause remanded with directions.


author: Wilkie, J. Gordon and Beilfuss, JJ.

text:
    Schrab and others, Appellants, v. State Highway Commission, Respondent.

      September 8

    October 5, 1965.

      For the appellants there was a brief by Lueck & Skupnie-wits of Beaver Dam, and oral argument by A. W. Lueck.

    For the respondent the cause was argued by Charles A. Bleck, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and A. J. Feifarek, assistant attorney general.
   Wilkie, J.

The sole issue to be resolved on this appeal is whether terms may be imposed against the state by a circuit court as a condition to dismissing an appeal taken to that court pursuant to sec. 32.05 (10), Stats., on an award of a county condemnation commission made pursuant to sec. 32.05.

This was an eminent-domain proceeding under the provisions of sec. 32.05, Stats. Sec. 32.05 (10) (a) prescribes the procedure by which either the state or an affected property owner may appeal to the circuit court from a county condemnation commission’s award, and provides in part:

“. . . The clerk shall thereupon enter the appeal as an action pending in said court with the condemnee as plaintiff and the condemnor as defendant. It shall thereupon proceed as an action in said court subject to all the provisions of law relating to actions brought therein . . . .”

The section does not provide that a circuit judge may grant a dismissal of such an appeal on terms. In this respect, sec. 32.06, Stats., which concerns condemnation proceedings in other than highways, streets, storm or sanitary sewers, and other specified matters, does provide in part:

“(9) Abandonment of Proceedings; or Payment of Award, (a) The condemnor must within 30 days after the date of filing of the commission’s award, if it desires to abandon the proceeding, petition the judge of the circuit court of the county wherein the property is situated, upon 5 days’ notice by certified mail to the owner, for leave to abandon the petition for taking. The circuit judge shall grant such petition upon such terms as he deems just, which terms may include reasonable expert witness fees incurred by condemnee for not to exceed 3 expert witnesses and a reasonable attorney’s fee both as approved by the judge. . . .” (Emphasis added.)

These two sections, 32.05 and 32.06, Stats., concern themselves with the same class of persons (the condemnor, whether highway or other use is involved, and the property owners whose property is to be taken if the project is pursued). In State v. Welkos, the familiar rule of statutory construction was stated as follows:

“In interpreting a statute it is necessary to consider other statutes dealing with the same class of persons.”

The legislative history of these two sections indicates that the legislature intended that the circuit court should be free to impose terms in granting a petition where abandonment of a nonhighway (or other specified type not involved here) eminent-domain proceeding is sought (sec. 32.06 (9) (a), Stats.), and intended that the circuit court should not be free to impose terms where dismissal is granted of an appeal taken to the circuit court in a highway-condemnation proceeding (sec. 32.05 (10) (a)).

By ch. 571, Laws of 1919, the forerunner of the present sec. 32.06 (9) (a), Stats., was enacted providing for the discontinuation of any (highway and all others) condemnation proceedings “upon such terms as to the court shall seem just.” This section remained unchanged through the years until 1960 when the legislature enacted a comprehensive rewrite of ch. 32, Eminent Domain. The 1919 enactment also provided for the appeal to the circuit court from an award of a highway condemnation commission.

In the comprehensive eminent-domain enactments of 1960, secs. 32.05 (10) (a) and 32.06 (9) (a), Stats., were incorporated in the precise language in force at the time of the instant proceeding. These sections must be considered together. It is clear that although the imposition of terms was contemplated in sec. 32.06 (9) (a) in conjunction with the abandonment of specified types of eminent-domain proceedings, it was not incorporated in sec. 32.05 (10) (a), where an appeal is taken to court in a highway-condemnation proceeding. Although certain costs and interest are allowed under both secs. 32.05 and 32.06, there is no language authorizing the imposition of terms in the dismissal of an appeal brought under sec. 32.05.

Sec. 32.19, Stats. 1957, provided for the imposition of terms in connection with the abandonment of any eminent-domain proceeding. Ch. 32, after the 1960 rewrite, provided for terms only in connection with the abandonment of non-highway and other specified types of condemnations under sec. 32.06. As rewritten there was no abandonment procedure (comparable to sec. 32.19, Stats. 1957) spelled out for highway condemnations and thus no provision anywhere in ch. 32 like the old provision in sec. 32.19 as applied to highway condemnations.

Thus, this is an issue settled by the specific statute covering the proceeding which involves sec. 32.05, Stats., and not sec. 32.06. The claim made by appellants that it would be unfair to dismiss the action at the highway commission’s request without requiring the commission to pay expenses incurred by the property owners to either substantiate or raise the award made by the condemnation commission, is properly directed to the legislature.

By the Court. — Order affirmed.

Gordon and Beilfuss, JJ.

{dissenting). The majority opinion, after examining secs. 32.05 (10) (a) and 32.06 (9) (a), Stats., concludes that the legislature intended that courts are not free to impose terms in connection with the dismissal of appeal in a highway-condemnation proceeding. We respectfully disagree with that interpretation.

Sec. 32.06 (9), Stats., deals with the abandonment of the contemplated taking of a parcel of property. In the case at bar, it is not proposed to abandon the condemnation of the appellants’ land for use in the project; the highway commission still desires to condemn the property but wishes to forsake only a step in the procedure wherein the question of just compensation is determined. We do not believe that it is appropriate to compare secs. 32.05 (10) and 32.06 (9) in order to determine whether terms may be imposed by the court in a dismissal under the former section.

The circuit court has, in our opinion, inherent equitable power to impose reasonable terms upon all litigants, including the state. The inherent powers of the court were considered in State v. Cannon (1929), 199 Wis. 401, 402, 226 N. W. 385, where it was said that courts are:

“. . . endowed with all judicial powers essential to carry out the judicial functions delegated to them. . . . These powers are known as incidental, implied, or inherent powers, all of which terms are used to describe those powers which must necessarily be used by the various departments of government in order that they may efficiently perform the functions imposed upon them by the people.”

This court has held that “costs” may not be imposed upon the state. Holton & Hunkel Greenhouse Co. v. State (1957), 274 Wis. 337, 345, 80 N. W. (2d) 371; Frederick v. State (1929), 198 Wis. 399, 400, 224 N. W. 110. However, there is a distinction between “costs” and “terms.” When costs are assessed, the amount thereof must be paid. There is no alternative; on the other hand, terms do provide an alternative. When the court sets terms, the party burdened thereby has a choice of courses to follow; a judgment requiring payment does not automatically follow.

Although this court is committed to the rule that costs may not be taxed against the state, it is our view that terms may be so imposed in the absence of a legislative provision to the contrary. If the state, as a litigant, engages in conduct which (in the discretion of the court) necessitates the imposition of terms against it, its immunity from “costs” should not insulate it from “terms.”

       Sec. 32.06 (9) (a), Stats., made applicable to state by sec. 32.17, Stats.

       (1961), 14 Wis. (2d) 186, 109 N. W. (2d) 889.

       Id. at page 190.

       Sec. 32.19, Stats. 1919: “Abandonment of proceedings. If any person instituting condemnation proceedings, shall deem it inadvisable to take the real estate at the price fixed by the commissioners or by a jury upon appeal, it may, within thirty days after filing the award of the commissioners or within thirty days after assessment of damages by the jury, discontinue the proceedings upon such terms as to the court shall seem just.” Sec. 1, ch. 571, Laws of 1919.

       Chs. 639 and 640, Laws of 1959. See also ch. 622 and ch. 682, Laws of 1961, Revisor’s Correction Bills.

       Sec. 1, ch. 571, Laws of 1919, supra, footnote 4. Sec. 32.11, Stats. 1919.

         Sec. 32.05 (10) (b), Stats.

       Sec. 32.06 (10) (b), Stats.

       Identical to sec. 32.19, Stats. 1919, supra, footnote 4.

       A note following the language of sec. 32.06 (9) (a), Stats., in Substitute Amendment No. 1, A to No. 483, A and in No. 483, A (enacted as ch. 640, Laws of 1959) reads as follows: “Sub (9) (a) deals with condemnor’s rights to abandon the proceedings. The court may in fixing terms allow reasonable expert fees and a reasonable attorney’s fee to condemnee. Such right does not exist today but is reasonable if condemnee is to be made whole.”
      The precise language of sec. 32.06 (9) (a) and the explanatory note was adopted from the basic report and recommended legislation of the special governor’s committee on eminent domain established by Governor Vernon Thomson, which report and recommendation were transmitted to the legislature on December 22, 1958.


author: Beilfuss, J.

text:
    Columbia Stamping & Manufacturing Company, Inc., Appellant, v. Reich, Respondent.

      September 9

    October 5, 1965.

      For the appellant there were briefs and oral argument by Herman M. Knoeller of Milwaukee.
    For the respondent there was a brief by Donald C. Haberman, attorney, and Fredric Mendelsohn of counsel, both of Milwaukee, and oral argument by Mr. Haberman.

   Beilfuss, J.

The issues are: (1) Was there an oral agreement between Reich and Reinders that the payment of the V & E note by Reich was to be credited toward the stock subscription, and (2) was the V & E note assumed by Columbia and a liability of Columbia ?

On appeal the findings of fact of the trial court must be adopted unless they are against the great weight and clear preponderance of the evidence. The evidence must be viewed from the standpoint most favorable to the findings of the trial court. Guinther v. Schucht (1965), 26 Wis. (2d) 97, 99, 101, 131 N. W. (2d) 861; Klapps v. American Ins. Co. (1965), 26 Wis. (2d) 664, 668, 133 N. W. (2d) 248; Hope Acres, Inc., v. Harris (1965), 27 Wis. (2d) 285, 290, 134 N. W. (2d) 462.

The trial court held that the oral agreement did exist. Reich so testified. Attorney Pedersen who was present at several conferences between Reich and Reinders testified to the same effect. Daniel Durovy testified Reinders told him in December of 1960 that all the stock had been paid for. An accountant’s balance sheet on Columbia, dated April 30, 1961, does not show any stock-subscription account receivable. Clearly there is ample credible evidence in the record to support the finding that the oral contract existed. In no sense can it be said that this finding is against the great weight and clear preponderance of the evidence.

Having approved the finding that the oral agreement did exist, we must decide whether or not it was effective. Columbia argues that Reinders had no authority to make the agreement; the board of directors must act. Columbia further argues that it never assumed the V & E liability and that it remained personal to Reich.

At the time of the oral agreement the directors of Columbia were Edwin A. Reich, Robert J. Reinders, and Kenneth F. Pedersen. The court does take judicial notice of this fact verified by annual reports in the office of the Wisconsin secretary of state under the rule announced in Fringer v. Venema (1965), 26 Wis. (2d) 366, 372, 373, 132 N. W. (2d) 565.

Sec. 180.13 (2), Stats., provides that the terms of payment for stock subscriptions shall be determined by the board of directors. Sec. 180.91 provides that any informal action by the board may be taken only if all persons entitled to vote at such meeting give consent in writing. No written consent was given here. However, sec. 180.37 (2) provides that notice is waived if the director attends unless he objects. Here all directors and shareholders were present at the meeting in Mr. Pedersen’s office. Reinders voiced no objection to lack of notice nor the informality. The meeting was for the purpose of discussing the financial problems of Columbia. This meeting constitutes a valid board meeting. Columbia’s contention that the oral agreement is invalid because of no official board action is not well taken. All directors and shareholders were present at the meeting at which the oral agreement was consummated. See 19 Am. Jur. (2d), Corporations, pp. 555, 558, secs. 1119-1121.

Finally, the court must determine whether or not the V & E note became a liability of Columbia so that payment of it would constitute a financial benefit to Columbia.

V & E was originally a partnership between Victor Nohl and Reich. Later they incorporated. They desired to dissolve V & E. Instead of filing dissolution papers the parties entered into an agreement whereby Nohl would assume certain liabilities and Reich would assume certain liabilities existing before October 1, 1959. Reich was to get the business and the machinery and equipment. This agreement is dated October 5, 1959. There were certain outstanding liabilities to the First Wisconsin National Bank at this date, and Reich was to assume them.

On October 8, 1959, the deal was consummated by a bill of sale. On the same day Reich gave a bill of sale to Davanzo, identical to the one received from Nohl except for very minor changes — mostly names. Then, on February 19, 1960, Reich took back the business. Davanzo had, in the meantime, operated as Columbia Stamping & Manufacturing Company, Inc. Reich indemnified Davanzo for all liabilities. Davanzo took a chattel mortgage on the machinery and equipment transferred. At this point Reich owned all the stock of Columbia.

Courts are generally divided as to whether or not a corporation may assume the liabilities of a partnership or sole proprietorship by implication. See 18 Am. Jur. (2d), Corporations, pp. 568, 569, sec. 19, wherein Ziemer v. C. G. Bretting Mfg. Co. (1911), 147 Wis. 252, 256, 257, 133 N. W. 139, is cited for holding that such liabilities may be assumed by implication. See also Chicago, M., St. P. & P. R. Co. v. Bluemound Oil Co. (1957), 275 Wis. 410, 82 N. W. (2d) 205. These cases hold that assumption of liabilities may be implied.

“We have a case where a sole trader incorporates and the corporation takes over all his assets, continues the same business at the same place with substantially the same name and under substantially the same ownership equitably. Under such circumstances a strong inference arises that it assumes the liabilities of the sole trader.” Blumenthal v. Schneider (1925), 186 Wis. 588, 590, 203 N. W. 393.

In this case we had a partnership incorporate. Then there were several transfers of the assets and stock and a change in name. However, the business remained substantially the same. The machinery and equipment was substantially the same. The business was operated in the same building. The Walker Manufacturing Company was the main customer of the business at all times pertinent. The business maintained the same accountant, with one interrupted period. The V & E note in question appeared on the Columbia books as a liability. Apparently the same books were used by various entities. The parties treated the V & E note as a liability of Columbia. Otherwise the oral agreement would not have been made.

These facts are sufficient to support the finding that Columbia assumed the V & E note.

It is quite apparent from the testimony in the record and the documents in evidence that the people involved treated the corporations involved more as partnerships or sole proprietorships. The transfers were made in a slipshod and haphazard manner. They were in the form of sales of assets rather than stock. The corporate modes of operation were ignored. The dispute in this action is really between Reinders and Reich. On the basis of this record it would appear to be unjust enrichment to suddenly impose strict corporation regulations when the evidence indicates that the parties conducted their business differently.

By the Court. — Judgment affirmed.


author: Heffernan, J.

text:
    Hastings Realty Corporation, Appellant, v. Texas Company, Respondent.

      September 9

    October 5, 1965.

      For the appellant there were briefs by Michael, Best & Friedrich, attorneys, and Frank J. Pelisek and David R. Olson of counsel, all of Milwaukee, and oral argument by Mr. Pelisek.

    For the respondent there was a brief by Quarles, Her-riott & Clemons, attorneys, and Neal E. Madisen and William A. Nohr of counsel, all of Milwaukee, and oral argument by Mr. Madisen.

   Heffernan, J.

The action of the state highway commission resulted in closing off access to the service station by way of West Forest Home avenue. Admittedly, except for a temporary encroachment, the state took no part of the leased property within the curbline. It is the contention, therefore, of Hastings, the landowner, that no part of the premises were taken, since irrespective of whether the conduct of the state was an eminent-domain taking, it was not a taking of the premises leased. Hastings contends that the land description set forth in the lease itself excludes the street area. The property as described in the lease runs to the center of West Forest Home avenue. However, the following language appears:

“reserving the north 60 feet and the southeasterly 60 feet for street purposes.”

The area where access was possible to West Forest Home avenue was encompassed in the southeasterly 60 feet.

Hastings is apparently contending that since that portion was reserved for street purposes it was not leased to Texaco. The sentence following the clause reserving a portion of the property for street purposes makes it apparent that Hastings’ position is untenable. That sentence reads:

“Together with all appurtenances thereto and all right, title and interest of lessor in and to any and all roads, streets and ways bounding the said premises.”

This additional proviso makes it clear that the right to make use of the streets in the same manner that the lessor or owner had theretofore been able to do was part of the grant to the lessee. It clearly granted to Texaco the appurtenant rights in the abutting street. In view of repeated declarations of our court, the clause may have been superfluous. In any event, it makes clear the intention of the parties that the street area, subject to the use by the public was included in the premises. Our court in Royal Transit, Inc., v. West Milwaukee (1954), 266 Wis. 271, 277, 63 N. W. (2d) 62, quoted with approval 25 Am. Jur., Highways, p. 448, sec. 154:

“ 'The right of access to and from a public highway is one of the incidents of the ownership or occupancy of land abutting thereon. Such right is appurtenant to the land, and exists when the fee title to the way is in the public as well as when it is in private ownership.’ ”

In the concurring opinion to Nick v. State Highway Comm. (1961), 13 Wis. (2d) 511, 517, 109 N. W. (2d) 71, 111 N. W. (2d) 95, Mr. Justice Currie stated:

“The writer of this opinion believes . . . that highway-access rights are but one of a bundle of rights which appertain to a parcel of real estate.”

We deem that to be a correct statement of the law.

In addition, the very nature of the lease agreement — an agreement for the rental of a service station — reasonably would contemplate the leasing of the appurtenant access rights. To hold otherwise would result in strained construction alien to the purpose of the lease and which neither party could have reasonably contemplated at the time of the agreement. Viewing the provisions of the lease and the entire transaction, we can only conclude that the street-access rights were a part of the bundle of rights appurtenant to and a part of the leased premises.

If there was a “taking” as contemplated in the lease, it was a taking of the premises.

Hastings contends, however, that even if access rights are to be considered as a part of the leased premises, there was no taking under eminent domain, and as set forth in the statement of facts, lease clause (6) permits termination when the premises are “taken for public use under right of eminent domain.”

The appellant takes the position that the taking of access rights constitutes an exercise of the police power and not eminent domain and, hence, the exculpatory clause of the lease is inoperative.

We cannot agree. It is our opinion that this was a taking under eminent domain. It is admitted that the state highway commission did proceed under the eminent-domain statute, sec. 84.09, Stats., which authorized the commission to “acquire by gift, devise, purchase or condemnation any lands for . . . improving . . . highways.” None of these phrases enable the commission to acquire lands (except when granted by gift or devise) without payment. The same portion of the statute provides that if the land cannot be “purchased expeditiously for a price deemed reasonable by the commission, the commission may acquire the same by condemnation under ch. 32.”

The “Jurisdictional Offer” which was submitted to Hastings is, of course, one of the initial steps in a condemnation proceeding.

Moreover, the Wisconsin statutes specifically provide that compensation shall be paid when there is a partial taking of premises, such as access rights under the power of eminent domain.

Sec. 32.09 (6) (b), Stats., provides that damages shall be paid for:

“Deprivation or restriction of existing right of access to highway from abutting land, provided that nothing herein shall operate to restrict the power of the state or any of its subdivisions or any municipality to deprive or restrict such access without compensation under any duly authorised exercise of the police power.” (Emphasis supplied.)

It is clear, therefore, that the state highway commission is authorized to pay for access rights acquired by condemnation.

The appellant contends that if the proceeding brought .by the highway commission is in fact eminent domain, the proceeding was brought by mistake — that properly the matter should have been handled under the police power. This contention is based upon the assumption that this court has held in similar cases that have been before it that the taking of an access right is ipso facto an exercise of the police power and is therefore not compensable. This is not what these cases stand for. They held that if access rights are acquired by the exercise of the police power, no compensation need be paid (unless all access is cut off).

A review of the cases referred to by the appellant will indicate that in each of them there was an express legislative authorization to act under the police power or that the police power was exercised only after holding legislatively authorized public hearings and administrative orders.

In Carazalla v. State (1955), 269 Wis. 593, 608, 70 N. W. (2d) 208, 71 N. W. (2d) 276, the court in its original decision would have allowed compensation for damages resulting from a highway relocation that cut off the plaintiffs from direct access. On rehearing the court vacated its mandate to set aside an instruction that would have permitted damages. The court said:

“. . . in our original opinion we failed to perceive that any damages to the remaining lands due to the exercise by the state of its police power in making the relocated highway a controlled-access highway are not recoverable. . . . (Emphasis supplied.)
“If relocated U. S. Highway 51 had not been designated as a controlled-access highway . . . the rule announced in our former opinion would be applicable.” Carasalla v. State, supra, at page 608c.

In Nick v. State Highway Comm. (1961), 13 Wis. (2d) 511, 513, 109 N. W. (2d) 71, 111 N. W. (2d) 95, Highway 30 had been declared to be a controlled-access highway under sec. 84.25, Stats. Mr. Justice Brown pointed out:

“By sec. 84.25 (1), Stats., the legislature empowered the State Highway Commission to designate heavily traveled public highways as controlled-access highways in the interest of public safety, convenience, and the general welfare. Subject to judicial review, when the commission so acts in such interest its action is an employment of the police power of the state.” (Emphasis supplied.)

Relying on Carazalla v. State, supra, Mr. Justice Brown wrote:

“The diminution in its value due to the exercise by the state of its police power in making Highway 30 a controlled-access highway is not recoverable ....
“The situation regarding the question of damages was frozen when the commission declared Highway 30 a controlled-access highway.” Nick v. State Highway Comm., supra, at page 515.

In Stefan Auto Body v. State Highway Comm. (1963), 21 Wis. (2d) 363, 371, 124 N. W. (2d) 319, we again made it clear that the highway under consideration was of a controlled-access nature, in that case as the result of prior legislation expressly invoking the police power.

“The purpose of Interstate Highway 94 is not to serve the traveling public or abutters as a local road but to serve as a safe, efficient, and speedy means of transporting traffic from one state to another. What the defendant did in constructing Interstate Highway 94 as a freeway was in the exercise of its police power expressly authorized by sec. 84.29, Stats.”

In McKenna v. State Highway Comm., ante, p. 179, 135 N. W. (2d) 827, we reaffirmed the doctrine of the preceding cases, but again the highway in question had been established as a controlled-access road pursuant to the grant of police power given by sec. 84.25, Stats., and after a public hearing.

Each of these cases above is readily distinguishable from the case before us. In each of them the road was declared to be a controlled-access road prior to any acquisition of access rights. In the case before us the highway has not been declared to be access controlled, and it would be unlawful for the state highway commission to seize access rights without compensation and without following the administrative procedure outlined in sec. 84.25, Stats.

This court in arriving at our decision in this case has taken judicial notice of the files of the state highway commission in regard to the administrative proceedings declaring the highways controlled access in the cases of Carazalla, McKenna, and Stefan Auto Body. It is apparent from these files that the state highway commission does in fact follow the administrative procedure of determining after a public hearing whether it is “necessary, in the interest of the public safety, convenience and the general welfare to prohibit entrance upon and departure from the highway or street except at places specially designated.”

It is apparent that the legislation contemplates that the police power of the state shall be exercised only after such findings are made. Sec. 84.25, Stats., requires preliminary engineering studies and public hearings, which are to be held only after three weeks’ notice by publication in the county where the highway is located. Witnesses at these hearings give testimony showing the necessity of limiting access to make travel on the road safer for the general public. It is also significant that, with the exception of interstate highways, only 1,500 miles of controlled-access highways are authorized by the legislature in the state — and then only in rural areas.

The record indicates that West Forest Home avenue has not been declared a controlled-access highway pursuant to law.

Accordingly, the cases cited are not analogous and the police power could not have been exercised as the appellant contemplates, and as it was in Carazalla, Stefan Auto Body, Nick, and McKenna.

It is evident that the highway commission may wish to limit access at particular 'points, even though it is not thought necessary to exercise the powers given under sec. 84.25, Stats., and even though a seizure under the police power cannot be justified. In such a case the legislature has wisely authorized the purchase of access rights as was done in this case. (Sec. 32.09 (6) (b).)

The appellant is in effect proposing, or at least asking us to declare, that a governmental agency has the authority to terminate private property rights without compensation and without a prior determination that the exercise of that power is necessary for the protection of the health and safety of the general public.

We have been shown no legislation that would permit such action by the highway commission, the cases that we have heretofore decided in this court do not stand for the proposition asserted, and as an original proposition it appears to have little to recommend it.

As this court said many years ago in the landmark case of State ex rel. Carter v. Harper (1923), 182 Wis. 148, 152, 196 N. W.451:

“It is . . . accepted doctrine . . . that laws imposing restraints interfering with the use of property or personal liberty, in the absence of some public necessity therefor, cannot be sustained.”

We agree with the learned trial judge that the access rights on West Forest Home avenue were taken by eminent domain.

Hastings contends, however, that Texaco could not terminate the lease even though the action of the highway commission constituted a taking under eminent domain. The pertinent portions of the lease clause in question provide :

“Lessee's right of termination .... If, during the term of this lease, a part only of said premises be taken for public use under right of eminent domain, and if the remainder, in the opinion of the lessee, is not suitable for its purpose, lessee, at its option, may cancel and terminate this lease, but if it shall not elect so to do, the monthly rental thereafter to be paid shall be reduced by an amount which bears the same ratio to that herein provided for as the area taken bears to the total area prior to such taking.”

Its argument is that the termination clause provides that in lieu of termination the lessee can elect to remain on the premises and pay rent that will be reduced in proportion to the land area taken. From this, it concludes that land area must be taken. We do not find it necessary to grapple with this contention since the lessee did not elect to remain. It elected to terminate the lease. As stated above, we find the access rights to be appurtenant to the premises and a part of them. The taking of them made possible the invocation of the clause of the lease that provided :

“. . . If, during the term of this lease, a part only of said premises be taken for public use under right of eminent domain, and if the remainder, in the opinion of the lessee, is not suitable for its purpose, lessee, at its option, may cancel and terminate this lease, . . .”

We conclude that the provision above, reasonably interpreted, means that the lessee, as it sees fit, can terminate the agreement or pay a reduced rental and continue in occupancy. Hastings’ contention ignores the fact that these are alternatives and clearly separable. It also ignores the possibility that the alternative of termination was selected because of the unworkability of a reduced-rental formula in this instance.

As a final string to its bow, Hastings contends that, in any event, Texaco did not exercise its option to terminate in a reasonable time after the right to do so accrued, and is thus barred from doing so now.

This point was not litigated below nor was it raised by the pleadings in such a manner that the trial judge gave it consideration. We have previously said that we will not consider for the first time on appeal factual elements not raised by the pleadings or brought to the attention of the lower court. Herro v. Heating & Plumbing Finance Corp. (1931), 206 Wis. 256, 239 N. W. 413.

In any event, the argument that the appellant urges us to consider — whether the option to terminate the lease was timely exercised — presents questions that can only be answered by speculation or facts dehors the record.

Alpern v. Mayfair Markets (1953), 118 Cal. App. (2d) 541, 547, 258 Pac. (2d) 7, 10, quoted by the appellant, alludes to a host of factual matters that must be before the court to determine reasonableness:

“. . . conduct of the parties, delay to act, acquiescence in delay, whether the delay is for unfair purposes, the construction which the parties themselves placed upon their contract, and whether the optionee acts within such time as will work no injury to the other party.”

Some of the most pertinent of the factual aspects listed above are not of record in this case. In the absence of the facts, which are essential in determining a concept like reasonableness, this court cannot resolve this question, and it cannot for the first time be raised on appeal.

By the Court.- — -Judgment affirmed.


author: Fairchild, J.

text:
    Fink and another, Appellants, v. Reitz and another, Respondents.

      September 9

    October 5, 1965.

      For the appellants there was a brief by John T. Pryor and Charles Saggio, both of Milwaukee, and oral argument by Mr. Saggio.

      For the respondents there was a brief by Wickham, Bor-gelt, Skogstad & Powell, attorneys, and Edmund W. Powell of counsel, all of Milwaukee, and oral argument by Edmund W. Powell.

   Fairchild, J.

Plaintiffs assert there are six issues, which we discuss as follows:

1. New trial in the interest of justice. There were two versions of the collision. The gist of Mrs. Fink’s testimony is that she made a right turn from the westernmost lane of traffic; that she had traveled in that lane for some distance; that as she approached Abbott street she gradually slowed down, activated her directional signal for a right turn, flashed her brake lights by pumping her brakes, and gave a hand signal for a right turn. She testified that after the collision Reitz told her he was sorry he did not see her, but the sun blinded him.

Reitz’s version was, in substance, that when he first saw the Fink car, it was ahead of him in the westernmost lane, the same as he; that the cars were 100 feet apart; that about a half block before Abbott street, he observed a “nondescript, a dangling”-type of arm signal, and the Fink car turned to the center lane and decreased its speed, all of which led him to conclude that Mrs. Fink was preparing to make a left turn; that he took his foot from the accelerator; that just at Abbott street, the Fink car swerved sharply to the right; that Reitz turned to the right, applied his brakes, and struck the right rear of the Fink car when his own car was moving very slowly. Reitz testified he had watched the rear of the Fink car and saw no directional signals nor brake lights. A passenger in his car corroborated his testimony in several respects. No one asked him whether he made the statement attributed to him by Mrs. Fink.

The jury did not exonerate Reitz, but clearly did not believe Mrs. Fink. If the facts were as Reitz related them, he had some basis for concluding that Mrs. Fink was preparing to make a left turn, although Abbott street did not extend east of Highway 100, and she could not have made a left turn until several hundred feet farther on.

The evidence supports the finding that both were causally negligent. Reitz’s testimony was not incredible. Comparison of negligence is peculiarly within the province of the jury. We cannot say that the apportionment in this case is not supported under any reasonable view of the evidence. Neither does it appear probable that justice has miscarried, so as to cause us to reverse in our discretion under sec. 251.09, Stats.

2. Perversity of verdict allegedly shown by findings as to damages. The jury determined that fair allowances to Mrs. Fink would be as follows: $1,000 for loss of earnings to date; $2,500 for pain and suffering to date; $3,000 for pain, suffering, and disability in the future. A zero was inserted as an answer to the question on damages to Mr. Fink for loss of society and companionship.

Plaintiffs contend that the last answer is perverse because there was testimony that Mrs. Fink was in the hospital or confined at home for several weeks, did no housework for about one year, and had to stay in traction during her sleep. They contend that wage loss of $2,500 was proved; and that the $5,500 awarded for suffering and disability was inadequate.

Defendants contend that the work schedules followed by the Finks before the accident were such that they spent very little time together, and that there are reasonable interpretations of the testimony under which the other damages found were adequate.

In view of the determination of Judge Landry that the verdict was not perverse, we find it unnecessary to resolve the question whether the damages were or were not inadequate. Assuming that they were, inadequacy of damage allowances does not compel a conclusion that the answering of liability questions in a manner unfavorable to plaintiffs was perverse.

“The rule is that where a jury has answered other questions so as to determine that there is no liability on the part of the defendant, which finding is supported by credible evidence, the denial of damages or granting of inadequate damages to the plaintiff does not necessarily show prejudice or render the verdict perverse.”

In passing on motions after verdict, Judge Landry indicated that he did not consider the damages inadequate, but that in any event the verdict was not perverse.

3. Separate questions as to particular aspects of negligence. Plaintiffs made a timely request for a special verdict and the court submitted a special verdict to the jury. The questions as to negligence of each party simply inquired whether that party was negligent with respect to the manner in which he operated his automobile. Other questions inquired as to causation. The questions were not subdivided so as to inquire as to the particular respects in which the automobile was negligently operated. Plaintiffs argue that the form of special verdict submitted by the court (often referred to as the “ultimate-fact verdict”) does not comply with sec. 270.27, Stats. In making this argument, plaintiffs overlook the sentence in that section: “In cases founded upon negligence, the court may submit separate questions as to the negligence of each party, and whether such negligence was a cause without submitting separately any particular respect in which the party was allegedly negligent.” This language was placed in the section by our order pursuant to our rule-making power, and previous cases holding that there must be separate questions for particular aspects of negligence are no longer in point. We find no abuse of discretion in the form of special verdict submitted by the court in this case.

4. Alleged error in instructions. Plaintiffs suggest that the giving and repetition of certain instructions gave undue emphasis to the version of the facts favorable to defendants.

Plaintiffs refer to “14 instructions against forward vehicle and only 3 against trailing vehicle.” They doubtless refer to the court’s statement as to duties of drivers, some of which, under one or the other version of the facts, described the duties of a driver in Mrs. Fink’s position, and others of which described the duties of a driver in Reitz’s position. We have carefully read the instructions but were unable to find as many as “14 instructions” falling in the former class, and did not find undue emphasis or prejudicial error.

Judge Landry said, before giving the instructions on duties of drivers:

“In answering these questions, you will weigh and consider the credible evidence, including the reasonable inferences from the evidence, bearing on these inquiries, in the light of the instructions I will now give you pertaining to specific duties, statutory rules of the road, and the rules of law that are to be applied by you in determining what your answers to these questions should be.”

He later cautioned the jury against concluding from the giving of such instructions that the court had determined that anybody was negligent.

Plaintiffs point out that the statements as to duty were later repeated. The jury asked the court to “reread the statute about the cause of negligence.” The court repeated certain general instructions on causation. The foreman later asked to have the “statute read regarding the cause of the accident.” Judge Landry explained that the statutes pertained to specific duties of motorists and asked if the jury wanted those duties repeated. The foreman answered “Yes” and Judge Landry repeated that portion of the instructions. We find no prejudicial error.

Plaintiffs object to the inclusion of an emergency instruction. If, however, the jury believed and accepted Reitz’s version of the facts, it could have found that he was confronted by an emergency to which no negligence of his contributed, and the giving of the instruction was proper. In any event, the jury found that Reitz was negligent.

5. Alleged errors with respect to evidentiary matters. Plaintiffs’ chief complaint here goes to the propriety of a hypothetical question put to a medical expert. It is unnecessary to consider the claim in detail because at this stage judicial errors, if any, affecting damages are immaterial. The doctor was asked to assume that the car which the injured person was driving “stopped after the collision within a distance of five to ten feet.” It is claimed that this statement is inaccurate because it did not suggest that the car lurched. Upon checking the record, we can find no inaccuracy of any consequence.

Several other complaints are made with respect to questions the court permitted defendants to ask or did not permit plaintiffs to ask, but most of these questions related to injuries and error in that respect, if any, would be immaterial. We have examined each other claim, but find no prejudicial error, nor reason to extend this opinion by further discussion.

6. Alleged prejudicial conduct and remarks by the trial court. Plaintiffs make reference to five statements or rulings made by the court, and argue that the court’s conduct and remarks influenced the outcome of the verdict. We have carefully examined and considered each of the matters referred to and find nothing to suggest impropriety, prejudice, or any implication to the jury of an opinion on the part of the court as to the verdict which the jury ought to reach. The claims are so wholly devoid of merit that a more-detailed statement is unnecessary.

By the Court.- — -Judgment affirmed.

        Niedbalski v. Cuchna (1961), 13 Wis. (2d) 308, 318, 108 N. W. (2d) 576.

        Sell v. Milwaukee Automobile Ins. Co. (1962), 17 Wis. (2d) 510, 519, 117 N. W. (2d) 719. Also see Dickman v. Schaeffer (1960), 10 Wis. (2d) 610, 617, 103 N. W. (2d) 922.

       In the Matter of the Revision of Rules of Pleading, Practice and Procedure in Judicial Proceedings in the Courts of Wisconsin (1961), 11 Wis. (2d) v.


author: Currie, C. J.

text:
    Schmude, Plaintiff, v. Hansen and another, Defendants and Respondents: Home Mutual Insurance Company, Defendant and Appellant. Peterson, Plaintiff, v. Schmude, Defendant: Hansen and another, Defendants and Respondents: Home Mutual Insurance Company, Defendant and Appellant.

      September 9

    October 5, 1965.

      For the appellant there were briefs by Byrne, Bubols, Spanagel & Pfankuch of Appleton, and oral argument by William S. Pfankuch.

    For the respondents there was a brief by Allan & Storck of Mayville, for Herman Mutual Insurance Company, and Pintan M. Flanagan and Henry P. Hughes, both of Oshkosh, for Ralph J. Hansen, and oral argument by Mr. Robert E. Storck and Mr. Hughes.

        Wiese v. Polser (1933), 212 Wis. 337, 343, 248 N. W. 113.

   Currie, C. J.

The issue on this appeal is whether the 1958 Ford pickup truck, which was purchased by defendant Hansen for use for farm purposes in connection with the operation of his farm, was covered at time of accident by Home Mutual’s policy, issued nearly a year prior to such acquisition, which insured a described passenger automobile. While this truck was not a vehicle described in the policy, and did not replace the described vehicle, -it had been acquired by Hansen only fourteen days prior to the accident and it is contended that this vehicle was covered by the thirty-day automatic coverage provision of this policy.

To resolve this issue we must construe Home Mutual’s policy. This policy obligates the insurance company to pay all sums the insured became obligated to pay which arose out of the operation, maintenance, and use of an “owned automobile.” Had the language of the policy ended here, there would be no problem, for an “owned automobile” clearly includes a farm truck. The instant policy, however, defines the term “owned automobile” and it is Home’s contention that a farm truck is excluded from coverage under this definition. The specific problem before the court is to determine if the newly acquired 1958 truck is covered by the thirty-day automatic coverage provision for newly acquired automobiles. Pertinent policy provisions are as follows:

‘owned automobile’ means (a) a private passenger or utility automobile owned by the named insured and described in the policy, (b) a trailer owned by the named insured, provided with respect to Part III it is described in the policy, (c) a private passenger or utility automobile or, with respect to Part III, a trailer, ownership of any of which is acquired by the named insured during the policy period, provided (1) it replaces a described automobile or trailer, or (2) the company insures all private passenger or utility automobiles or trailers owned by the named insured on the date of such acquisition and the named insured notifies the company within 30 days following such date; and includes a temporary substitute automobile. . . .
‘private passenger automobile’ means a four wheel private passenger, station wagon or jeep type automobile;
“ ‘farm automobile’ means an automobile of the truck type with a load capacity of one and one-half tons or less not used for business or commercial purposes other than farming;
‘utility automobile’ means an automobile, other than a farm automobile, with a load capacity of fifteen hundred pounds or less of the pick-up body, sedan delivery or panel truck type not used for business or commercial purpose.” (Italics supplied.)

Hansen at no time advised Home Mutual or its agent that he desired coverage on the 1958 Ford pickup truck. Therefore, if coverage is to be afforded under Home Mutual’s policy it must be by reason of the thirty-day automatic coverage provision of the policy. In construing this provision of the policy and the applicable definition clauses our first task is to inquire if there is any ambiguity present in these provisions as to whether or not a farm pickup truck qualifies for inclusion in the thirty-day automatic coverage clause. Unless there is ambiguity in this respect, the rule of strict construction against insurance companies is not applicable.

In Tischendorf v. Lynn Mut. Fire Ins. Co. this court stated:

“The liability of an insurance company is based upon a contract entered into between the parties and must be governed by the provisions thereof, and, where such provisions are clear and unambiguous, the rule of strict construction against insurance companies cannot be resorted to for the purpose of modifying the contract or creating a new contract.”

The type of vehicles covered under the thirty-day automatic coverage clause are “all private passenger or utility automobiles or trailers.” According to the plain and ordinary meaning of these words, a pickup truck is not a “private passenger automobile.” There is nothing in the policy definition of “private passenger automobile” which would normally extend to a pickup truck. Furthermore the policy language is “private passenger or utility automobiles.” The term “utility automobiles” is a generic one whose ordinary meaning would include a pickup truck, thus negating the idea that “private passenger automobiles” was intended to have any broader import than is generally accorded it. Thus we conclude that, if a farm pickup truck is to be covered by the thirty-day automatic coverage clause, it must be by reason of it being a utility automobile.

When we turn to the policy definition of a “utility automobile” we find express language excluding a farm truck. This express language is “other than a farm automobile.” Respondents cite Lever Brothers Co. v. Erbe which held that the words “other than” frequently mean “in addition to,” or words of similar import, rather than “except.” We do not agree that this is a frequent meaning of “other than,” and that the usual meaning of this phrase is “different than.” However, the Iowa court in the Lever Brothers Case chose to construe the statutory words “other than” as “in addition to” in order to avoid an unreasonable result obviously not intended by the legislature. We are not persuaded that this precedent is one which should be followed in the instant case.

We cannot escape the conclusion that under the aforementioned definition clauses of the policy farm trucks are expressly excluded from coverage under the thirty-day automatic coverage clause. Counsel for Home Mutual have been unable to supply any reason why the company should wish to exclude farm pickup trucks from the automatic coverage clause when other utility pickup trucks not used for farming purposes are included. Furthermore, other language of the policy establishes that trailers drawn by a farm pickup truck would be so covered if such truck, as well as any other automobile owned by insured, was insured by Home Mutual at time of acquisition of such trailer. However, if the company chose to write such a policy with this exclusion against farm trucks in the thirty-day automatic coverage clause and Hansen accepted it, there is no statute or court-adopted rule to render this type of exclusion contrary to public policy and void. As was said in Bulman v. Bulman:

“ ‘It is true that as a general rule a contract of insurance shall be construed most strongly against the insurer, but in our opinion the terms of this contract are not ambiguous. Contracts of insurance rest upon and are controlled by the same principles of law that are applicable to other contracts, and parties to an insurance contract have the legal right to insert such provisions in the agreement as they see proper so long as the contract does not contravene the law or public policy, and it is the duty of courts to construe and enforce such agreements as made and not to make new contracts for the parties.’ ”

Similarly the seventh circuit in National Union Fire Ins. Co. v. Frisco Frolics Musical Comedy Co. stated:

“Insurance companies may by contract limit their liability as they please . . . and the policy is the sole source of the parties’ obligation. . . . The terms of the policy are certain and unambiguous, and the appellee failed to bring itself within those terms.”

Over objection by Home Mutual the trial court permitted Home Mutual’s agent who wrote the Hansen policy, and its vice-president in charge of underwriting, to be questioned as adverse witnesses with respect to the practice of the company in insuring farm pickup trucks. Their testimony was to the effect that Home Mutual has used the same form of policy as was issued to Hansen to insure such farm trucks by describing them in the policy. Furthermore, when an insured under such a policy has subsequently acquired a farm truck and notified Home Mutual’s agent, coverage has been extended to the farm truck by attaching an endorsement to the policy describing it, and by the insured paying the additional premium due for such coverage.

Respondents contend that this practice by Home Mutual is a surrounding circumstance which should be taken into consideration in determining whether an ambiguity exists with respect to including Hansen’s 1958 farm pickup truck within the thirty-day automatic coverage provision of the policy. They cite Georgiades v. Glickman, wherein we quoted with approval the Williston test of ambiguity as follows :

“. . . whether a written contract is so unambiguous as not to render admissible any testimony of surrounding circumstances, is dependent on whether the words used are so clear that the offered evidence ‘would not persuade any reasonable man that the writing meant anything other than the normal meaning of its words would indicate.’ ”

A course of conduct between Home Mutual and insureds other than Hansen is not material unless Hansen knew of it and relied upon it. The cases we have examined in which a course of conduct by one of the parties has been resorted to in construing a contract are limited to situations in which such conduct either took place with the other contracting party or was known and relied upon by him. There is no evidence that Hansen knew of such practice. The fact that upon purchase of the truck he immediately arranged for coverage by Herman Mutual indicates that he did not consider the truck was covered under the thirty-day automatic coverage clause of his policy with Home Mutual.

In Smith v. Mutual Benefit Health and Accident Asso. the court in construing an exclusion clause in an accident policy stated:

“To the foregoing rules of contractual construction another can well be added. It is that the fact terms of a policy of insurance may be construed as ambiguous when applied to one set of facts does not make them ambiguous as to others which come directly within the purview of such terms.”

For the reasons stated we conclude • that the thirty-day automatic coverage clause of Home Mutual’s policy issued to Hansen did not extend coverage to the 1958 Ford farm pickup truck being operated by Hansen at the time of the accident.

By the Court. — That part of the interlocutory judgment appealed from is reversed, and cause remanded for further proceedings not inconsistent with this opinion.

       (1926), 190 Wis. 33, 42, 208 N. W. 917. In accord are Issacson v. Wisconsin Casualty Asso. (1925), 187 Wis. 25, 203 N. W. 918; Lontowski v. Ignarski (1959), 6 Wis. (2d) 561, 95 N. W. (2d) 230; Rabinovitz v. Travelers Ins. Co. (1960), 11 Wis. (2d) 545, 105 N. W. (2d) 807.

       In Schilling v. Stockel (1965), 26 Wis. (2d) 525, 133 N. W. (2d) 335, evidence that a utility truck which was utilized by the insured as a passenger automobile was held to create an ambiguity with respect to a nonowned vehicle exclusion clause which excepted “passenger automobiles.” That case is readily distinguishable from the instant case where the sole evidence as to use is Hansen's testimony that he intended to only use the truck for farm purposes.

       (1958), 249 Iowa 454, 87 N. W. (2d) 469.

       (1955), 271 Wis. 286, 289, 73 N. W. (2d) 599.

       (7th Cir. 1933), 65 Fed. (2d) 928, 929.

       (1956), 272 Wis. 257, 264, 75 N. W. (2d) 573.

       (1953), 175 Kan. 68, 70, 258 Pac. (2d) 993.


author: Hallows, J.

text:
    Reith and wife, Respondents, v. Wynhoff, Appellant.
    October 5, 1965.

      For the appellant there was a brief and oral argument by Clinton J. Finnegan of Milwaukee.

      For the respondents there was a brief by Lester J. Dencker, attorney, and John B. Werra of counsel, both of Milwaukee, and oral argument by Mr. Dencker.

   Hallows, J.

There is some confusion in the record whether the stipulation entered into by the parties constituted a reference, a common-law or statutory arbitration, or some other arrangement. The court in its order and in its findings, no doubt prepared by counsel, refers to referees; however, we do not consider this stipulation as calling forth and being governed by a statutory reference under sec. 270.34, Stats. That section provides for a trial by a referee upon the written consent of the parties. Such trials are conducted in the same manner as a trial by the court. Sec. 270.35. No such trial was contemplated or held pursuant to the stipulation.

Nor can the stipulation be treated as a common-law arbitration since at common law the entire proceeding of arbitration and award merely constituted a contract between the parties and the successful party could only enforce the award as he could an ordinary contract. Such an arbitration made during a lawsuit ousted the court of jurisdiction and operated ipso jacto as a discontinuance of the pending action. Pick Industries, Inc., v. Gebhard-Berghammer, Inc. (1952), 262 Wis. 498, 56 N. W. (2d) 97, 57 N. W. (2d) 519; Decker v. Ladish-Stoppenback Co. (1931), 203 Wis. 285, 234 N. W. 355. Here, the parties contemplated the award would be returned to the court in the form of a report. The stipulation provided the court would settle certain matters of difference between the two experts. The stipulation required a judgment to be entered upon the award and the jurisdiction of the court was expressly retained.

We consider the stipulation should be treated as a statutory arbitration under ch. 298, Stats., and that chapter should apply where not inconsistent with the agreement. The stipulation is silent as to its nature and since the statutory-arbitration provisions are not negated and the parties have acted thereunder not inconsistently with the statutory-arbitration procedure, the arbitration ch. 298 applies. Madison v. Frank Lloyd Wright Foundation (1963), 20 Wis. (2d) 361, 122 N. W. (2d) 409.

The defendant contends it makes no difference whether the stipulation is treated as a statutory arbitration or just as a contract because in either event the court had power and erred in not setting aside the report or award. Under sec. 298.10 (1) (d), Stats., a court may vacate an award “Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.” The court under a statutory arbitration may also modify or correct an award in the three situations set forth in sec. 298.11 (1). One of the grounds for correcting an award is “Where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted.” Sec. 298.11 (1) (b).

The main thrust of the appellant’s argument is the court-appointed experts failed to understand the instructions, to follow them and to use the correct measure of damages. The stipulation entered into required the court-appointed appraiser to have, with other qualifications, at least fifteen-years’ experience in the appraisal of residential property in the Wauwatosa area and the building contractor to have, with other qualifications, at least fifteen-years’ experience in general construction with emphasis on residential construction, particularly multifamily units. Such men were appointed by the court and were to determine the extent of the plaintiffs’ damages, if any, caused by the defendant. The stipulation was somewhat unusual for an arbitration contract. It required the real-estate appraiser to examine the building and to determine whether, because of any failure on the part of the defendant to perform the contract, the plaintiffs received a building of diminished value. In determining the diminished value he was to use the standard of “the difference between the value of the building as it now stands with faulty and incomplete construction and the value of the building as it would stand if it had been constructed in strict compliance with the contract.” But, in making this determination the real-estate appraiser was not to include any defects which could be “remedied by reasonable expense without great sacrifice of work or material already wrought into the building and which could be effected without tearing down or destroying a great deal of work or creating substantial destruction and economic waste.” The defects which could be so repaired were to be compensated for by the contractor’s determining a reasonable sum for the cost of repair. This standard of diminished value and cost of repair is taken almost verbatim from Plante v. Jacobs (1960), 10 Wis. (2d) 567, 103 N. W. (2d) 296.

The contractor was required to examine the building to determine whether there were defects attributable to the defendant, which could be repaired at a reasonable expense and without economic waste, and the cost of repairing such defects. The contractor was to inform the appraiser of those defects which he believed would not be subject to the cost-of-repair rule and thus fall under the diminished-value rule. In the event a conflict arose as to whether an item was properly a cost-of-repair or a diminished-value item, the conflict was to be resolved by the court. In this respect the parties departed from Plante v. Jacobs, wherein it was pointed out the normal rule for damages due to faulty construction amounting to incomplete but substantial perform-anee was the diminished-value rule and that the cost-of-repair applied to small items of defect or omission which could be remedied without the reconstruction of a substantial part of the building or a great sacrifice of work or material already wrought in the building. However, where the separation of defects would lead to confusion, the rule of diminished value would apply to all defects. No dispute arose between the two experts concerning which items came under the cost-of-repair rule and which under the diminished-value rule. Thus the report was not to be a joint award of two experts of the entire subject matter but rather a determination by each expert of a part thereof.

The report consisted of two parts, the part prepared by the building contractor which set forth the cost of repair of all the defects whether they were economically feasible to repair or not. The real-estate appraiser then took this report and classified certain defects as those to which the rule of diminished value should apply. These defects consisted primarily of exterior defects, such as cracks in the brick wall, sills, and outside basement wall. The cost of repairing these items was $1,151.07. By adding an inconvenience factor of $499, the appraiser assigned damages under the diminished-value rule of $1,650. The items to which the cost-of-repair rule applied as determined by the contractor amounted to $1,857.95. All of these defects excepting the driveway were in the interior of the building. The appraiser added to this figure an inconvenience factor of $642.05, resulting in a cost of repair of $2,500.

The real-estate appraiser had no authority to include an inconvenience factor of $642.05 in the cost of repair of those items falling within the cost-of-repair rule. The stipulation expressly provided those items were to be determined by the building contractor and were to be excluded from items constituting diminished value. The amount of damages result-mg from such defects was of no concern to the real-estate appraiser. Consequently, the award should be modified and corrected in this respect by eliminating the sum of $642.05 from the award. The court has power to modify an award under sec. 298.11 (1) (b), “Where the arbitrators have awarded upon a matter not submitted to them unless it is a matter not affecting the merits of the decision upon the matters submitted.” This item is severable from the other elements of the cost-of-repair items which were properly determined by the building contractor.

The stipulation did not restrict the real-estate appraiser in his judgment or method of arriving at present values under the diminished-value rule. The expert used the cost-of-repair plus an inconvenience factor in determining the present value of the building as it stood with the defects. He justified this from his experience and in his expertise. Defendant argues the diminished value cannot include the cost-of-repair and an inconvenience factor. In explaining the diminished-value rule in Plante v. Jacobs, supra, we stated the cost of replacement or repair is not the measure of such diminished value, but is an element to take into consideration in arriving at value under some circumstances. “The cost of replacement or the cost to make whole the omissions may equal or be less than the difference in value in some cases and, likewise, the cost to rectify a defect may greatly exceed the added value to the structure as corrected.” The real-estate appraiser determined this was a situation in which to use the cost of repair as an element. Whether he was right or wrong in that determination cannot be determined by the court.

It was an ancient rule at common law that mere errors of judgment were not enough to upset an award whether upon questions of fact or of law if within the submission. Decker v. Ladish-Stoppenback Co., supra; Donaldson v. Buhlman (1908), 134 Wis. 117, 113 N. W. 638, 114 N. W. 431; McCord v. Flynn (1901), 111 Wis. 78, 86 N. W. 668. There is no question the real-estate appraiser acted honestly. The parties contracted for his judgment and opinion as a real-estate appraiser on value in lieu of a trial and that is what they received. His errors of judgment within the scope of the submission honestly committed were contingencies assumed by the process of arbitration. If the parties intended to limit the expert in his opinion to certain theories of establishing value, the stipulation should have so provided.

The defendant contends the report is defective because the appraiser considered the driveway both as a cost-of-repair item and also an item of diminished value. Actually, the appraiser was mistaken in his explanation in including an inconvenience factor of $499 to the diminished value. He was under the impression part of the inconvenience would be due to the driveway being out of use. This mistake is of such a nature as to come within the risk of an arbitration submission since it does not fall within the class of mistake under sec. 298.11 (1) (a), Stats., which can be corrected, or is it such a mistake as would be grounds to set aside a common-law arbitration. Decker v. Ladish-Stoppenback Co., supra; Donaldson v. Buhlman, supra.

We do not agree the report of the appraiser and contractor was defective because those persons did not have a clear idea of the test each was to employ in determining damages. The testimony shows they understood their duties and we consider the mistakes made as errors of judgment and not, as claimed by the defendant, as an unintentional misapprehension or ignorance of a material fact and so gross and palpable as to be equivalent of arbitrary action. The report is definite and certain and in sufficient detail to fulfil the purposes for which the submission was made. Much of the difficulty in this case arises from the inadequacy of definiteness of the agreement to submit. To a lawyer, the language used conveys by innuendo much more meaning than it does to laymen.

By the Court. — The judgment appealed from should be modified by the reduction therefrom of $642.05 and, as so modified, is affirmed; the appellant to have costs on appeal.

September 9

      September 9


text:
    Lingott, Appellant, v. Bihlmire, Respondent.

      September 9

    October 5, 1965.

      For the appellant there was a brief by Lichtsinn, Dede, Anderson & Ryan of Milwaukee, and oral argument by Eldred Dede,

      For the respondent there was a brief by Charne & Tehan of Milwaukee,-and oral argument by Irvin B. Charne.

   Gordon, J.

When we remanded this case to the circuit court after the 1964 appeal, Judge Watts was confronted with the difficult task of applying sec. 75.61 (1), Stats., pursuant to this court’s mandate. While the language of the statute appears reasonably clear on its face, its actual application to this type of case is cumbersome.

Upon deliberation, it is the conclusion of this court that sec. 75.61 (1), Stats., contemplates that when a tax sale is voided the amount to be paid into the court is the amount of all taxes accumulated to the date of the tax sale plus any sums actually paid by the purchaser for taxes levied upon the premises subsequent to such sale; the phrase “person or persons claiming under such tax sale or tax certificate” is not limited to the taxing authority which took the tax deed, but it is broad enough to include the first.purchaser of the property from the taxing authority.

The appellant has suggested that the statute requires one who successfully voids a tax sale to pay into court only the amount of money which was transferred at the time of the issuance of the tax deed. We reject this interpretation since it excludes accumulated taxes which were permitted to merge under sec. 75.36 (9) (a), Stats. In addition, the appellant’s interpretation does not give sufficient importance to the express clause of the statute which provides that the amount to be paid into court shall include not only the amount for which the land was sold but also “the amount paid by such person or persons for taxes levied upon the premises subsequent to such sale.”

Also, we are unable to adopt the appellant’s argument that only the grantee of the tax deed (here, Walworth county) can qualify as the “person or persons claiming under such tax sale or tax certificate.” In our view, the statute contemplates that the land may be sold to someone other than a taxing authority; a sale by one taxing entity to another governmental unit to which taxes were owed does not deplete all the possible tax sales which are covered by the statute.

We believe that the first conversion of the land into dollars by a sale to a party who is not a taxing entity is also a sale for taxes within the intendment of the statute. Whether subsequent purchasers could be included within the statute need not be determined in this case. Thus, when the county took a tax deed and conveyed to Mr. Bihlmire, the latter was a person “claiming under such tax sale.”

We recognize that the application of the statute to this type of controversy is a difficult one. We deem our analysis to be reasonably consistent with the language and consonant with the basic purpose of the statute. In Estate of Evans, ante, pp. 97, 101, 135 N. W. (2d) 832, we noted that, “A statute should not be construed so as to work absurd or unreasonable results.” See also Isaksen v. Chesapeake Instrument Corp. (1963), 19 Wis. (2d) 282, 120 N. W. (2d) 151. Cf. Marshfield v. Cameron (1964), 24 Wis. (2d) 56, 62, 127 N. W. (2d) 809; Appleton v. Outagamie County (1928), 197 Wis. 4, 220 N. W. 393.

Upon the foregoing interpretation, Mrs. Lingott should be required to pay into court the total taxes and interest on the property through 1962. The record suggests that this figure, as of January 16, 1963, was $52,614.75. In addition, she should be required to pay in any additional sums which were actually paid by Mr. Bihlmire as taxes for these premises subsequent to the time he received his deed. Interest at eight percent on the $52,614.75 is to be paid from March 13, 1964. As to any additional sums actually paid by Mr. Bihlmire as taxes, interest thereon at eight percent is to be paid by Mrs. Lingott from the date or dates of payment.

The foregoing paragraph assumes, but does not purport to determine, that the figure of $52,614.75 (as stated by the county treasurer) will be found by the trial court to be the correct total of the accumulated and merged taxes which had been unpaid as of March 13, 1964. Upon the remand the trial court should satisfy itself as to the correct amount of taxes and interest which were due as of March 13, 1964, and add thereto any sums (with interest) subsequently paid by the defendant for taxes, and then the court should enter a new order based thereon.

By the Court. — Order reversed, and cause remanded with directions.