author: Currie, C. J. Beilfuss, J.

text:
    Millard and wife, Appellants, v. Columbia County Highway Committee and another, Respondents.

      October 2

    October 27, 1964.

      For the appellants there was a brief by Arno J. Miller of Portage, attorney, and Callahan, Arnold & Van Metre of Columbus of counsel, and oral argument by Jack Van Metre.

    For the respondents the cause was argued by William H. Wilker, assistant attorney general, with whom on the brief was George Thompson, attorney general.
   Currie, C. J.

The sole question on this appeal is whether the condemnors or the landowners were the “successful party” entitled to costs in the discretion of the court under sec. 271.02 (2), Stats., where the circuit court appeal resulted in the landowners receiving less than awarded by the the commission but more than the original basic award.

Sec. 32.05 (10) (b), Stats. 1961, specifies how judgment shall be entered after trial had in circuit court of an appeal from the commission’s award and provides that costs “shall be allowed pursuant to s. 271.02 (2).” Sec. 271.02 (2), provides in part as follows:

“In equitable actions and special proceedings costs may be allowed or not to any party, in whole or in part, in the discretion of the court, and in any such case the court may award to the successful party such costs (exclusive of disbursements) not exceeding $100, as the court deems reasonable and just, in view of the nature of the case and the work involved.” (Italics supplied.)

The point at which the instant condemnation proceeding achieved the status of a court proceeding was upon the filing of the appeal by the condemnors to the commission’s award. Prior to that event it was an administrative proceeding. State ex rel. Milwaukee v. Circuit Court (1958), 3 Wis. (2d) 439, 446, 88 N. W. (2d) 339; Madison v. Tiedeman (1957), 1 Wis. (2d) 136, 142, 83 N. W. (2d) 694; Barrows v. Kenosha County (1957), 275 Wis. 124, 125, 81 N. W. (2d) 519. Sec. 32.05 (10) (b) and sec. 271.02 (2), Stats., are clearly confined in their application to court proceedings and can have no application to any of the preceding administrative proceedings in this condemnation.

In order to determine who was “the successful party” in this litigation within the meaning of sec. 271.02, Stats., we must compare the position of the parties at the commencement of the litigation with their position at time of rendering judgment. At the time condemnors filed their appeal to circuit court there was outstanding an award by the commission to the landowners of $3,500. Unless either the con-demnors or the landowners had appealed therefrom to circuit court within sixty days after the filing of such award, the landowners would have been entitled to payment of $1,900 ($3,500 less the amount of the basic award of $1,600) plus interest, at the expiration of seventy days following the filing of this award. Sec. 32.05 (9) (c). In contrast to this, after trial had of the appeal in the circuit court the landowners were only entitled to judgment for $475 ($2,075 less $1,600) plus interest. Sec. 32.05 (10) (b). We can perceive of no escape from the conclusion that the condem-nors, and not the landowners, were the successful parties in this appeal. Therefore, the circuit court properly allowed condemnors costs.

We consider Trempealeau County v. Marsh (1948), 252 Wis. 278, 31 N. W. (2d) 519, squarely supports this determination. There sec. 32.11, Stats. 1945, predecessor to sec. 32.05 (10) (b), provided, “Costs shall be allowed to the successful party on the appeal.” The basic award was $437; the award on appeal in the administrative proceeding before the county judge was $800; and on appeal to circuit court the jury awarded $750. The opinion declared (at p. 279) :

“The respondents [landowners] were successful before the county judge in their attempt to increase the amount due them over the original award of $437, but on the appeal from the county to the circuit court, there was a reduction of the damages from the $800, which the county judge had awarded, to $750. In the circuit court proceeding the appellant county was therefore the successful party. Washburn v. Milwaukee & Lake Winnebago R. R. Co. (1884), 59 Wis. 364, 378, 18 N. W. 328.
“The trial court evidently was prompted to disallow costs to the prevailing party in circuit court because of circumstances intervening between the original award by the highway commission of $437 and the final assessment by the jury in circuit court of $750. However, in this situation the statute confers no such discretion upon the court as to the allowance of costs. Therefore the denial of costs and disbursements to appellant was error.”

Subsequent to the decision in Trempealeau County v. Marsh, supra, the legislature by ch. 639, Laws of 1959, repealed and re-created ch. 32, Stats., which resulted in a comprehensive revision of our eminent-domain statutes. The legislative history of this enactment provides further support for our conclusion that the commission’s award, and not the original basic award, is what should be taken as the basis of comparison with the award determined in the circuit court appeal in order to determine who is the successful party for purposes of costs under sec. 271.02, Stats.

The original bill introduced in the 1959 legislature which, after amendment, became ch. 639, Laws of 1959, was Bill No. 483, A. As introduced, proposed sec. 32.05 (10), Stats., contained three separate provisions for awarding costs, two covering situations where the jury verdict on appeal was more than the commission’s award, and a third for the contingency of the jury verdict being less than the commission’s award. Substitute Amendment No. 1, A, to Bill No. 483, A, was then introduced in the assembly which, among other things, changed the provisions of proposed sec. 32.05 (10), and provided costs to the landowner as a matter of right if the jury verdict approved by the court exceeded the commission’s award, and for awarding of costs as a matter of right to the condemnor if the jury verdict approved by the court was less than the commission’s award. Then Amendment No. 1, A, was offered to Substitute Amendment No. 1, A, to Bill No. 483, A, which struck from proposed sec. 32.05 (10) the provisions therein contained with respect to costs and inserted the present provision of sec. 32.05 (10) (b), providing, “Costs shall be allowed pursuant to s. 271.02 (2).” This amendment to Substitute Amendment No. 1, A, was adopted and then, as so amended, this substitute amendment was adopted.

We cannot believe that the legislature would have proceeded in any such roundabout manner in substituting the original basic award for the commission’s award as the determining factor to be considered in awarding costs if that was what was intended. Rather, we interpret the change made in the bill by adoption of Amendment No. 1, A, to the substitute amendment, as being intended merely to give the circuit court the same discretion over costs as it possessed in equity actions.

Subsequent to the revision made in ch. 32, Stats., by ch. 639, Laws of 1959, the case of Jonas v. State (1963), 19 Wis. (2d) 638, 121 N. W. (2d) 235, came before this court. There, as here, the award in circuit court was less than the commission’s award but greater than the basic award. The circuit court awarded costs to the landowners. On the appeal to this court the landowners contended that sec. 271.02 (2), gave the circuit court discretion to award costs to the unsuccessful party. The landowners further contended that the question before this court as to this award of costs was whether it constituted an abuse of discretion. No contention was made that the landowners were the successful party on the appeal. The rationale of this court’s holding with respect to the costs issue appears from this extract from the opinion (at p. 647) :

“The circuit court awarded costs to the plaintiffs [landowners]. The state was the successful party in the circuit court since the verdict was less than the award of the commissioners from which the state had appealed. [Citing Trempealeau County v. Marsh, supra.]
“Plaintiffs contend that under the statute the discretion of the court extends to awarding costs to the unsuccessful party in the action. The state takes the position that the discretion extends to what, if any, costs will be allowed to the successful party, but that no portion of the costs may be allowed to the unsuccessful party. Although the statute is somewhat ambiguous, we consider the state’s interpretation to be more reasonable. The judgment could properly deny costs to the state but should not have granted costs to the plaintiffs.”

The appellant landowners cite Smithbeck v. Larson (1864), 18 Wis. 193 (*183); Norwegian Evangelical Lutheran Church v. Thorson (1866), 21 Wis. 35 (*34); and Cronemillar v. Duluth-Superior Milling Co. (1908), 134 Wis. 248, 114 N. W. 432. These cases involved appeals from justice court to circuit court where the controlling cost statute was sec. 271.08, Stats., and its predecessor statute, which provide for award of costs to the “successful party” if there had been a trial de novo in. circuit court. It was held that if the plaintiff recovered anything in circuit court, even though for the same amount as, or less than, the justice court judgment, he was the successful party and entitled to costs. The apparent rationale for so holding was that, because defendant had denied owing anything, plaintiff was successful if he recovered anything in his final judgment in circuit court. However, the proceeding in justice court constituted part of the litigation. Here the litigation did not commence until the appeal to circuit court. Therefore we do not consider that these cited precedents are controlling of the instant issue of costs in eminent-domain appeals to circuit court.

By the Court. — Judgment affirmed.

Beilfuss, J.

(dissenting). I respectively dissent on the ground that previous constructions of the term “successful party” as used in sec. 271.08, Stats., apply equally to that term as used in sec. 271.02 (2) and were intended by the legislature so to apply in condemnation appeals to circuit court.

Ch. 133, sec. 38 (3), R. S. 1858, the predecessor to sec. 271.01, provided that costs be allowed of course to the plaintiff upon his recovery in an action over which a justice of the peace had no jurisdiction. Ch. 133, sec. 56, the forerunner of sec. 271.08, provided that costs be allowed the successful party in a new trial on an appeal from justice court. In Smithbeck v. Larson (1864), 18 Wis. 193 (*183), the defendant appealed a justice court judgment for $31 and costs. On a new trial in circuit court the plaintiff was awarded only $4 damages. It was held that the successful party was the one recovering judgment on the new trial.

In Norwegian Evangelical Lutheran Church v. Thorson (1866), 21 Wis. 35 (*34), plaintiff appealed a justice court judgment for 50 cents damages and costs. On a new trial in circuit court he was again awarded 50 cents damages. The Smithbeck rule was followed, Mr. Justice Cole pointing out that the defendant could have relieved himself of costs in circuit court by serving upon plaintiff an offer in writing to allow judgment to be taken against him under ch. 97, Laws of 1858 (now sec. 269.02, Stats.). The result of this case was overruled by ch. 189, Laws of 1875, which amended the statute to provide that whenever a party in whose favor judgment was rendered in justice court appealed to circuit court and a new trial was had, if the appellant did not recover a more favorable judgment he should pay costs to the adverse party.

It should be noted that this amendment did not change the definition of successful party as the one who recovers judgment; rather, it reinforced that definition by creating an exception to the general rule. In the cases covered by the amendment the appellant may not tax costs in circuit court notwithstanding the fact that he is the successful party.

By ch. 145, Laws of 1937, the legislature amended sec. 271.02 (2), Stats., inserting the successful party provision in question here. The only other statute in the costs and fees chapter, ch. 271, employing the term “successful party” is sec. 271.035, enacted by ch. 301, Laws of 1949. I conclude that “successful party” as used in these statutes was intended by the legislature to have the same meaning as in sec. 271.08.

The majority attempts, unsuccessfully in my opinion, to distinguish the Smithbeck Case, supra, on the ground that the proceedings in justice court were part of the litigation while an administrative proceeding is not. In my view the rationale of the Smithbeck Case is that on a new trial in circuit court when an appeal has been taken from justice court the party recovering judgment is entitled to costs as though there had been no prior action, even though the amount of such costs be different.

The majority relies upon Jonas v. State (1963), 19 Wis. (2d) 638, 121 N. W. (2d) 235, and Trempealeau County v. Marsh (1948), 252 Wis. 278, 31 N. W. (2d) 519, for its conclusion that the state is the successful party on this appeal because the commission’s award was reduced. Trempealeau County v. Marsh relied in turn upon Washburn v. Milwaukee and Lake Winnebago R. Co. (1884), 59 Wis. 364, 18 N. W. 328.

The Washburn Case construed sec. 1849, R. S. 1878, which provided that, on appeal to circuit court from the award of the commissioners in railroad condemnation, costs should be allowed to the successful party on the appeal and added to the amount of the verdict if allowed in favor of the landowners or deducted from the verdict if allowed in favor of the condemnor. In Trempealeau County v. Marsh, supra, the statute involved was one of general application to eminent-domain proceedings. It contained language identical to that construed in Washburn.

The explicit language of a statute directed to a specific situation was abandoned by the 1959 legislature in favor of reference to the provisions of a general statute under the circumstances pointed out by the majority. The Jonas Case, supra, insofar as it adheres to the costs rule of Trempealeau County v. Marsh, supra, and Washburn v. Milwaukee and Lake Winnebago R. Co., supra, should be overruled.

The majority disregards that portion of sec. 32.05 (10) (b), Stats., which provides that on an appeal from a commission award to circuit court, “The court shall enter judgment for the amount found to be due after giving effect to any amount paid by reason of a prior award.” It is in this context that the statute further provides, “Costs shall be allowed pursuant to s. 271.02 (2).”

Sec. 32.05 (9) (c), Stats., relating to the commission’s award, states that all sums due shall be paid within seventy days after the date of filing of said award. Under sec. 32.05 (10) (a), the time for appeal of the commission’s award to circuit court is limited to sixty days after the date of filing. The only rational construction of these statutes, in my view, is that the legislature contemplated that the condemnor might appeal the commission’s award, then pay it, and thereby become entitled to entry of judgment in its favor and allowance of costs in the discretion of the trial court should the commission’s award be reduced. Cf. Norwegian Evangelical Lutheran Church v. Thorson, supra. Apparently this procedure was followed in Ramminger v. State Highway Comm. (1963), 22 Wis. (2d) 194, 125 N. W. (2d) 406.

I would reverse the judgment and remand it for allowance of costs to the plaintiffs, in the discretion of the court below.

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


source: Caselaw Access Project

author: Currie, C. J. Gordon, J.

license: Public Domain

text:
    Schlicht and another, Appellants, v. Thesing and another, Respondents.

      October 2

    October 27, 1964.

      For the appellants there were briefs by Leonard R. Choj-nacki, Moen, Sheehan & Meyer and Leon E. Sheehan, all of La Crosse, and oral argument by Leon E. Sheehan.

    For the respondents there was a brief and oral argument by Lawrence M. Engelhard of La Crosse.

       Motion for rehearing denied, with costs, on December 21, 1964.

   Currie, C. J.

On this appeal we only find it necessary to consider plaintiffs cause of action grounded on the theory that at the time of the accident she was an invitee and not a mere licensee. In determining whether this portion of the complaint states facts sufficient to constitute a cause of action, we must resolve these two questions:

(1) Was plaintiff an invitee ?

(2) If she was, does the complaint allege any breach of duty by defendants to her ?

Plaintiff an Invitee.

While the amended complaint does not state that plaintiff was a relative of either defendant, the parties concede that Mrs. Thesing is plaintiff’s daughter so that the children with whom plaintiff was baby-sitting were her grandchildren. Neither does the amended complaint state whether plaintiff’s services were gratuitous or whether they were to be compensated by defendants. We deem these factors to be immaterial on the issue of whether plaintiff was an invitee.

In Smith v. Shuda (1964), 22 Wis. (2d) 629, 126 N. W. (2d) 498, plaintiff, a married daughter, was helping her mother, the defendant, paint a kitchen in defendant’s home at the latter’s request. This court approved an instruction which stated the defendant’s duties toward plaintiff to be that of an inviter. This holding completely negatives defendants’ contention that a business relationship is essential to an inviter-invitee relationship, if by business relationship is meant a commercial enterprise.

A similar contention was expressly rejected by the Nevada court in Murdock v. Petersen (1958), 74 Nev. 363, 332 Pac. (2d) 649. There the injured plaintiff was gratuitously performing services in the home of a neighbor at the latter’s request. In its opinion the court stated (at p. 365) :

“In our view the existence of a business relationship cannot today be held to be essential to the status of invitee. It would, we feel, be grossly unjust to place plaintiff in an inferior position because she was willing, out of the goodness of her heart, to respond to defendant’s call for help and to perform needed services for defendant’s benefit without demanding compensation. She was a servant in fact, albeit a gratuitous one, and was as much justified in expecting a safe place to work as a servant for hire would have been. She is, then, entitled to occupy the same status.”

See also Restatement, Torts (2d), Tentative Draft No. 5, p. 59, sec. 332, Note to Institute; 2 Harper and James, Law of Torts, p. 1478, sec. 27.12; Prosser, Business Visitors and Invitees; 26 Minnesota Law Review (1942), 573.

We conclude that the allegation of the complaint that plaintiff was performing the baby-sitting services at the request of defendants was sufficient to establish her as their invitee, and not a mere social guest who would be a licensee.

Breach of Duty Owed Plaintiff.

The plaintiff being an invitee, defendants owed her the duty of exercising ordinary care for her safety. Gorr v. Mittlestaedt (1897), 96 Wis. 296, 298, 71 N. W. 656. This court has long held that a landowner is liable for injuries to an invitee caused by reason of the unsafe condition of the premises known to the owner and which he negligently suffers to exist and of which the injured invitee has no notice or knowledge. Flood v. Pabst Brewing Co. (1914), 158 Wis. 626, 633, 149 N. W. 489; Hupfer v. National Distilling Co. (1902), 114 Wis. 279, 284, 90 N. W. 191; Gorr v. Mittlestaedt, supra.

In light of these general principles we search the complaint to ascertain if there are any allegations which spell out negligence on defendants’ part. We start with the premise that plaintiff was unaware that one of the four doors in the hallway in the new addition to defendants’ home opened on a flight of stairs descending to the basement. Three specific acts of negligence are charged against defendants in paragraph 12 of the amended complaint which reads:

“That the defendants were negligent toward the plaintiffs, particularly in the following respects:
“(a) In failing to warn the plaintiff, Edna Schlicht, of the existence of such basement stairway in close proximity to the bedroom and other doors in the hallway.
“(b) In failing to have said basement door locked.
“(c) In failing to have said hallway and the basement stairs sufficiently lighted.”

We eliminate from consideration the allegation of sub-paragraph (b) that defendants were negligent in failing to lock the basement door. It would be imposing an unreasonable requirement on homeowners to require them to lock basement doors every time a baby-sitter is employed in the household.

This leaves for consideration the allegations of subpara-graphs (a) and (c). Because we must interpret the amended complaint liberally in favor of stating a cause of action, we construe the allegation of subparagraph (c) with respect to lighting as meaning that no adequate lighting facility was installed in the hallway, rather than a mere failure of defendants to have had an existing light turned on. This is crucial because if the hallway was equipped with an adequate electric light activated by a switch or pull cord, no negligence could be predicated on defendants’ failure to have switched on such light before turning the premises over to plaintiff.

The owner of premises owes his invitee the alternative duty of either having his premises in a reasonably safe condition or of giving the invitee adequate and timely warning of latent and concealed perils which are known to the owner but not to the invitee. 38 Am. Jur., Negligence, pp. 754 to 756, sec. 96. “. . . when the condition contended to constitute an unreasonable risk is obvious to one in the exercise of ordinary care . . . there is no duty.on the owner or occupier to warn him.” Harbourn v. Katz Drug Co. (Mo. 1958), 318 S. W. (2d) 226. Ordinary care requires that one turn on a provided light before proceeding into an unlighted unfamiliar area. If defendants provided adequate lighting facilities, plaintiff was required to use them. Use of the light would have made any danger arising from presence of the stairway obvious and consequently defendants would have had no duty to warn of such danger. Defendants, therefore, would not be answerable for dangers arising wholly from plaintiff’s negligent conduct.

However, since the allegation of the amended complaint with respect to failure to have the hallway sufficiently lighted is subject to the interpretation that there were no adequate lighting facilities in the hallway, we conclude that a cause of action is spelled out because of defendants’ failure to warn plaintiff of the danger existing in the location of the basement stairway. Our holding in this respect is limited to determining that under the facts pleaded a jury issue is raised as to whether defendants were negligent in failing to give such warning to plaintiff. It is obvious that plaintiff failed to exercise reasonable care for her own safety but that would not bar her from recovery unless her negligence equaled or exceeded any found negligence on the part of defendants.

By the Court. — Judgment and order reversed, and cause remanded for further proceedings not inconsistent with this opinion.

Gordon, J.

(dissenting). I must respectfully dissent. The majority opinion, in effect, holds that parents are obliged as a matter of law to warn their baby-sitter of the location of the basement stairway. Since stairs are the common and ordinary means of going from one floor to another, a householder should not be under a legal duty to describe their existence or explain their use.

In Szep v. Robinson (1963), 20 Wis. (2d) 284, 121 N. W. (2d) 753, we held that as a matter of law parents were not liable to a baby-sitter who ignited her clothing while using the electric stove. We recognized in that case, at page 291, that one would be liable to a baby-sitter “for any injuries sustained by the baby-sitter in the performance of her services, when it is reasonable to foresee that harm will result.”

The majority opinion properly rejects the baby-sitter’s claim of negligence based upon the householder’s failure to lock the basement door. This would be “an unreasonable requirement,” says the majority opinion. In my view, it is similarly unreasonable to require the householder to warn a baby-sitter as to the situs of the basement steps.

The majority opinion has adopted an interpretation of the following words of the complaint which are part of the plaintiff’s claim as to the householder’s negligence: “. . . failing to have said hallway and the basement stairs sufficiently lighted.” These words are construed in the majority opinion to mean that there was no means of turning on a light. I am bewildered by this interpretation. If the plaintiff had intended to complain of the absence of a fixture or of the absence of any electrical installation, I believe she would have used different language than to have said simply that the hallway and stairs were not “sufficiently lighted.”

I believe that we should affirm the trial court’s order which sustained the demurrer.

I am authorized to state that Mr. Justice Hallows and Mr. Justice Wilkie join in this dissent.


author: Wilkie, J.

text:
    Tiedeman and others, Appellants, v. Village of Middleton, Respondent.

      October 2

    October 27, 1964.

      For the appellants there were briefs by Aberg, Bell, Blake & Metzner of Madison, and oral argument by Robert K. Aberg.

    For the respondent there was a brief by Warren D. Lucas, attorney, and Harold E. Hanson of counsel, both of Madison, and oral argument by Mr. Lucas.

   Wilkie, J.

Three issues are presented on this appeal:

1. Does the city of Middleton have the right to discharge surface water from the drainage area onto appellants’ land?

2. Did appellants acquire a prescriptive right to the diversion of the surface water by the railroad embankment?

3. Are appellants entitled to injunctive relief in this situation?

First: Does the city of Middleton have the right to discharge surface water from the drainage area onto appellants’ land? There are two possible theories under which the city could drain water on appellants’ land: (1) Allowing the water to continue the direction of its natural flow, and (2) the power of a municipality to divert water incidental to construction of sewers or streets.

(1) Direction of Natural Flow.

Municipal corporations have the same rights in regard to surface waters as have individuals. A municipality may, therefore, channel surface water in its natural direction via conduits rather than over the surface or by percolation if no new watershed is tapped and the volume of water is not increased.

The trial court found that with a minor exception, all the surface water from the whole drainage area (58 acres) would have drained naturally into the pond were it not for the railroad embankment. The exception was a half-acre tract lying north of the tracks between Park and Maple streets. The court found that this small area would not have drained into the pond had it not been for the Middleton storm-sewer system, but that the amount of water it contributed to the pond was negligible. Appellants assail these findings as being contrary to the evidence.

The trial court’s findings of fact will not be disturbed unless they are against the great weight and clear preponderance of the evidence. If upon consideration of all the evidence, this court could reasonably arrive at the same conclusion, the finding below will not be upset. Appellants contend, and it is undisputed, that there are several depressions within the drainage area in which surface waters accumulate. All the water, then, does not ultimately end up in the pond. However, this literal construction of the finding flies in the face of common sense. The trial court certainly was aware that not only does water evaporate into the air and percolate into the ground, but that it ponds in low spots. The sum and substance of the finding is that all of the water in the drainage area which does drain, would find its way naturally to the pond if it were not for the railroad embankment. The finding cannot be disturbed because there were a few ponding areas.

Appellants argue that the record is void of evidence proving that water from the drainage area would have reached the pond prior to the time the railroad embankment was laid. It is not surprising that neither side could produce a witness with firsthand knowledge of the water flow one hundred years ago. Witnesses on both sides testified in essence that water in any part of the drainage area, with the one exception, would flow southerly toward the pond. Appellants’ expert, Meklin, presented corroborating evidence in the form of land elevation readings. The elevation of the pond hovered around 910. The elevation of the swale, which lies between the tracks and the pond is 924.20. The elevations of various streets and corners within the drainage area are greater than those of the pond and the swale by the indicated amounts, respectively: Middleton and Hubbard (20 and 6 feet), Hubbard and Park (30 and 16 feet), Henry and South (21 and 8 feet), Park and South (25 and 11 feet), Mayflower and South (32 and 18 feet), Maple and South (30 and 16 feet), Elmwood (32 and 18 feet), Hubbard (28 and 14 feet), and South (20 and 6 feet). Would appellants have this court overrule the law of gravity and decide that water does not run down hill? It is true that these are 1960 readings. But due to the significant differences in elevation, the trial court could have reasonably relied on the readings in conjunction with the testimony to conclude that had the tracks not been there, the water would have flowed to the pond. The finding is not against the great weight and clear preponderance of the evidence.

Appellants also contend that a new watershed — the Anderson and Meadows developments — was tapped by the drainage system. The testimony and the elevation readings indicate that except for the small area, which was correctly determined to be of no import, the water from these developments always would have drained into the pond had it not been for the embankment.

-Furthermore, the volume of water routed to appellants’ land by the drainage system was not increased. The best evidence of this are the readings showing that the level of the pond did not rise significantly after the installation of the new culvert system. The elevation of the pond on August 22, 1960, was 909.66. After a 3.74-inch rainfall on September 18th, a 910.57 reading was taken. Readings on November 17th, January 17, 1961, and June 27, 1963, were 910.35, 910.08, and 908.96, respectively. The last water level reading was actually lower and the intervening levels not appreciably higher, than the first reading. Appellant Lemcke testified that the pond overflowed Park street about 40 years ago. The elevation of Park street, without the present grading, is nearly two and a half feet higher than the pond. Thus the depth of the pond was considerably higher before any draining system was established than it is now.

Appellants contend that the water north of the tracks is discharged from a “natural reservoir” contrary to Pettigrew v. Evansville, The case is distinguishable. In Pettigrew a landowner complained that the city threatened to drain a large body of standing water, created by the active participation of the city, onto his land. The court stated, at page 230:

“. . . we know of no adjudged case where it has been held that the waters of a natural pond or reservoir upon the land of one person may be drained by him directly upon the land of another, greatly to his injury; nor where one owner has been allowed, by means of a ditch, trench, sewer or the like, to gather the surface water from his own land and throw it upon the land of another, so as materially to lessen its value and produce injury to the owner.”

The important distinctions between Pettigrew and the case at bar are: (1) The water here would flow naturally to the adjoining land; (2) the water here was not in any standing or permanent body of water.

The facts of Pettigrew have been held to be “exceptional.” The facts in the instant situation are also clearly different from those in Pettigrew.

We conclude that under the facts presented here the city may divert the surface water under the “natural flow” theory.

(2) Diversion Incidental to Construction.

Assuming that the 58-acre area would not have drained naturally into the pond, what authority did Middleton have to divert surface water in conjunction with its program of street construction? It is undisputed that streets act as conduits in the Middleton drainage system. By constructing streets and gutters within its limits, a city may change the natural watercourse so as to increase the flow of water upon private land, But a city may not collect water in a body and then cast it on the land in a large volume. Appellants have no quarrel with the statement of the law, but argue that it is inapplicable here because none of their properties adjoin any of the streets or ditches utilized in the drainage system. Although appellant Voss’ property abuts Middleton street, it is not adjacent to any of the streets employed as part of the drainage system. No water may be channeled to this land. However, Park street cuts through the property of appellants Tiedeman and Lemcke. As this street is a part of the system, water may be run off on their land.

We conclude, therefore, that incidental to its street construction, the city had additional authority to divert surface water to the land of appellants Tiedeman and Lemcke.

Second: Did appellants acquire a prescriptive right to the diversion of the surface water by the railroad embankment? Regardless of the city’s right to establish its drainage system, appellants contend that because Middleton acquiesced when the railroad constructed its embankment back around 1855, which blocked off the natural flow of wafer from the 58-acre tract to the Tiedeman pond, the city is bound by that change and appellants acquired a prescriptive right in the maintenance of that embankment and that such right was violated by the piercing of the embankment by the culvert.

If an artificial body of water is created, landowners incidentally benefited are entitled to injunctive relief to prevent disturbance of the new state of the water. Wisconsin prescriptive-rights cases involve proprietors of lands which border bodies of water, who in some way relied on the new water level which was maintained by another’s dam. These cases hold that when the artificial level of the water is continued for a considerable period of time, usually twenty years, it becomes a natural condition. These cases do not control the present case. Appellants call the railroad grade, which blocked up the surface water, the “artificial condition.” In the Wisconsin prescriptive-rights cases, the body of water affected — not the dam — constituted the “artificial condition.” Also in these cases the landowners had made expenditures, constructed buildings, or in other ways relied on the new state of the water. In the instant case there is no evidence that appellants relied on the embankment in making any particular use of the land. They had always farmed their lands, a use perfectly consistent with the presence of water, and in acquiescence of the continued existence of the 22-acre pond which was largely fed by the area surrounding appellants’ land.

In an Iowa case, a culvert, which was laid under a railroad embankment, allowed water to follow its natural course upon the plaintiff’s land. The embankment had shielded the land from water flow for over fifty years. The court found that there was no prescriptive right. The court said (at p. 1349):

“It is true defendants’ land has for many years been shielded by the railroad embankment from surface water from the dominant land west of it. But it has acquired no prescriptive right to such protection. Bones v. Chicago, R. I. & P. Ry. Co., 145 Iowa 222, 229, 120 N. W. 717; Hinkle v. Chicago, R. I. & P. Ry. Co., 208 Iowa 1366, 227 N. W. 419; King v. Chicago, B. & Q. Ry. Co., 71 Iowa 696, 698, 29 N. W. 406, 407.”

The appellants have not acquired prescriptive rights. There is lacking that degree of reliance upon the embankment which is necessary in order to invoke the equitable doctrine of prescription.

Third: Are appellants entitled to injunctive relief in this situation? Even assuming that the city had violated its authority in putting through the new drainage system or even assuming that appellants had prescriptive rights that had been breached by installing the disputed culvert, injunctive relief should be granted only where there is irreparable injury. Acts which destroy or cause serious change to property constitute irreparable injury.

The record shows no irreparable injury caused to any of the appellants by the outpouring of water through the 30-inch culvert that runs through the embankment, under the tracks and Park street and out onto the street right-of-way just adjacent to the pond. Appellant Voss was unaware of any damage to his land. Appellant Lemcke admits that his property had suffered no physical damage. Appellant Tiede-man had no damage to any buildings, but felt that the value of his property was being lessened. Appellants’ real-estate expert was unaware of whether the pond level had risen.

As previously discussed, the evidence supports the trial court’s finding that the water level in the pond has not increased after the construction. The drainage area of 58 acres contributes only 25 percent of the runoff to the pond (there were another 158 acres). Inasmuch as the 22-acre pond on Tiedeman’s property has been fed by an area three times as large as the Middleton area, it is doubtful that the small increase, if any, in the water volume that could possibly be due to the Middleton drainage system appreciably affects the value of his land. It is questionable whether any of the appellants demonstrated enough harm to be entitled to injunctive relief.

By the Court. — -Judgment affirmed. Costs on this appeal, including costs for printing pages of its brief in excess of forty, awarded to respondent.

        Bratonja v. Milwaukee (1958), 3 Wis. (2d) 120, 87 N. W. (2d) 775; Freeman v. Lake Mills (1943), 243 Wis. 537, 11 N. W. (2d) 181; Hoyt v. Hudson (1871), 27 Wis. 656.

        Freeman, supra, footnote 1; Manteufel v. Wetzel (1907), 133 Wis. 619, 114 N. W. 91.

        Clark v. Moru (1963), 19 Wis. (2d) 503, 120 N. W. (2d) 888; State ex rel. Isham v. Mullally (1961), 15 Wis. (2d) 249, 112 N. W. (2d) 701.

       (1869), 25 Wis. 223.

         Heth v. Fond du Lac (1885), 63 Wis. 228, 23 N. W. 495.

         Peck v. Bardboo (1909), 141 Wis. 48, 122 N. W. 740; Harp v. Bardboo (1898), 101 Wis. 368, 77 N. W. 744; Champion v. Crandon (1893), 84 Wis. 405, 54 N. W. 775.

         Champion v. Crandon, supra, footnote 6; Pettigrew v. Evansville, supra, footnote 4.

       Relying on 56 Am. Jur., Waters, p. 569, sec. 82. and p. 626, sec. 159.

       Anno. 88 A. L. R. 130; Harnsberger, Prescriptive Water Rights in Wisconsin, 1961 Wisconsin Law Review, 47. The rationale must be based more on equitable consideration than on the law of prescriptive rights because there is no adverse claim involved. The landowners make no hostile use of the water and the party creating the condition acquiesces in the former’s use.

       See for example Minehan v. Murphy (1912), 149 Wis. 14, 134 N. W. 1130; Johnson v. Eimerman (1909), 140 Wis. 327, 122 N. W. 775; Pewaukee v. Savoy (1899), 103 Wis. 271, 79 N. W. 436; Smith v. Youmans (1897), 96 Wis. 103, 70 N. W. 1115.

        Stouder v. Dashner (1951), 242 Iowa 1340, 49 N. W. (2d) 859.

       Even if there were a prescriptive right that could be urged against the railroad, such a right cannot be urged against the public. See Stouder v. Dashner, supra, footnote 11; see also Stuart v. Gilbert (1934), 215 Wis. 546, 255 N. W. 142; and Klinkert v. Racine (1922), 177 Wis. 200, 188 N. W. 72, which held that adverse possession will not run against the city. As discussed in footnote 9, supra, there is no element of hostility in a prescriptive right while there is in adverse possession. These doctrines, however, are grounded on similar notions, and support the proposition that prescriptive rights cannot be asserted against the city.

        Hartung v. Milwaukee County (1957), 2 Wis. (2d) 269, 86 N. W. (2d) 475, 87 N. W. (2d) 799; Maitland v. Twin City Aviation Corp. (1949), 254 Wis. 541, 37 N. W. (2d) 74.

        Ferguson v. Kenosha (1958), 5 Wis. (2d) 556, 93 N. W. (2d) 460.


author: Per Curiam.

text:
    State ex rel. Boulton and others, Petitioners, v. Zimmerman, Secretary of State, Respondent.

      October 6

    October 27, 1964.

      For the petitioners there was a brief by Dominic H. Frinsi and Nicholas C. Catania, both of Milwaukee, and oral argument by Mr. Catania.

    For the respondent the cause was argued by Robert J. Vergeront, assistant attorney general, with whom on the brief were George Thompson, attorney general, and David McMillan, assistant attorney general.
   Per Curiam.

The principal issue presented is whether nomination papers can be validly circulated and filed nominating a complete slate of 12 independent presidential electors, or whether a separate nomination paper must be circulated and filed for each of the 12 nominees.

Under sec. 1, art. II, United States constitution, Wisconsin is entitled to 12 presidential electors, since 12 is the total number of our members in the United States house of representatives and senate. The names of the candidates for presidential elector do not appear on the ballot but only the names of the candidates for President and Vice-President for whom the electors are pledged to vote. Sec. 9.04, Stats., provides, “A vote for the presidential and vice presidential nominees of any party is a vote for the electors of such nominees.”

Established political parties, which have succeeded in nominating candidates for the legislature at the September primary, nominate their presidential electors at their state platform conventions, and such nominations are then certified to the secretary of state. Sec. 5.36, Stats. There is, however, no separate statutory provision applying to the method of nominating independent candidates for presidential electors in behalf of a party such as the Socialist Workers Party which failed to nominate candidates for the legislature at the September primary and thus does not have available to it the machinery of a platform convention by which to nominate its presidential electors. Thus the only applicable statute is sec. 5.19, which covers all independent nominations. Cf. 1 Op. Atty. Gen. (1912) 215, and 25 Op. Atty. Gen. (1936) 610, which opinions were rendered under predecessor statutes to sec. 5.19. The portions of such statute applicable to this controversy are :

“(4) . . . Except as otherwise provided in this subsection nomination papers for an independent candidate to be voted for throughout the state shall be signed by at least 1,000 electors. Each candidate, whether voted for directly or indirectly, shall file with his nomination papers a declaration that he will qualify as such officer, if elected.
“(5) Each elector shall sign for only one candidate for the same office, and shall add his residence, post-office address and the date of signing.” (Italics supplied.)

Because under the provisions of sec. 9.04, Stats., the voters vote for an entire slate of presidential electors, and have no opportunity to vote separately for individual candidates for presidential electors, an ambiguity exists with respect to the meaning of sec. 5.19 (5), when applied to such candidates. Where, as here, there exists an ambiguity in a statute, the past practical construction over an extensive period by the officer or administrative agency charged with its administration is to be accorded great weight in determining the statute’s meaning. State ex rel. City Bank & Trust Co. v. Marshall & Ilsley Bank (1959), 8 Wis. (2d) 301, 307, 99 N. W. (2d) 105; Frankenthal v. Wisconsin Real Estate Brokers’ Board (1958), 3 Wis. (2d) 249, 255, 88 N. W. (2d) 352, 89 N. W. (2d) 825. Acquiescence of the legislature in the practical interpretation placed upon statutes by the administrative agency charged with their enforcement has also been held by this court to be entitled to great weight in construing ambiguous statutes. Dunphy Boat Corp. v. Wisconsin Employment Relations Board (1954), 267 Wis. 316, 326, 64 N. W. (2d) 866, and cases cited therein.

Plowever, the past administrative practice is one of confusion. The attorney general first ruled twice that the names of all presidential electors of a political party, which resorted to the independent method of nominating candidates as prescribed by the predecessor statute to sec. 5.19, Stats., could be placed on one ballot. 1910 Op. Atty. Gen. 309, and 1 Op. Atty. Gen. (1912) 235. Subsequently the attorney general ruled that a separate nomination paper had to be circulated in behalf of each independent presidential elector. 9 Op. Atty. Gen. (1920) 436, 21 Op. Atty. Gen. (1932) 492, and 25 Op. Atty. Gen. (1936) 466. Because of these later rulings of the attorney general the secretary of state required separate nomination papers to be filed for each independent candidate for presidential elector during the period from 1920 to 1952. Then in 1952 the secretary of state permitted the Socialist Workers Party and also the Socialist Labor Party to file sets of nomination papers for presidential electors on which the names of the entire slate of 12 candidates of each of these parties appeared on the same set of nomination papers. The .explanation for this is afforded by the following letter of July 22, 1952:

“Mr. James E. Boulton
Socialist Workers Party
917 North Third Street
Milwaukee 3 Wisconsin
“Dear Sir:
“With reference to our letter of July 18th, we are pleased to give you the results of a conference with Attorney General Vernon Thomson regarding the printing of names of Independent candidates for president and vice president on the Wisconsin ballots.
“The Attorney General informs us that the requirements of the Statutes will be complied with by filing one set of nomination papers in behalf of all presidential electors. Therefore, the given and surname of each elector, vocation and address may be printed on one nomination paper. This eliminates the circulation of twelve different sets of nomination papers for presidential electors. This one set of nomination papers must contain the signatures, residences and post office addresses of at least one thousand electors of the state. If this method is adopted by your organization, we strongly advise the printing of the form of nomination paper in accordance with the sample enclosed. The principles, expressed in five words or less, will apply to all twelve electors.
“A separate set of nomination papers will be required for the Independent candidates for president and vice president. Each set must also contain the signatures of at least one thousand electors of the state.
“Therefore, instead of filing fourteen sets of nomination papers, as has been the practice in other years, it has been determined that three sets, providing they meet the requirements of law, will be sufficient for placing the names of Independent candidates for president and vice president on the presidential ballots of Wisconsin, at the election to be held November 4th, 1952. The deadline for filing will be September 23rd, 1952, at 5 :00 o’clock P. M.
“Each candidate for president, vice president and presidential elector will be required to file with the nomination papers a declaration of acceptance that he will qualify for the particular office he is seeking. Forms for this purpose are enclosed.
“Very truly yours,
“/s/ FRED R. ZIMMERMAN,
“Secretary of State”

Also in the ensuing presidential election years of 1956 and 1960 the secretary of state permitted the filing by independent party candidates for presidential elector of nomination papers wherein all 12 candidates of the party were named in each nomination paper. Thus for the last twelve years preceding 1964 the administrative practice has been in accord with the method which petitioners have now attempted to pursue and which the secretary of state contends is invalid.

To us the administrative agency practical construction followed in 1952, 1956, and 1960 is the more logical than that of the years 1920 to 1952. It is also the one which the attorney general had originally approved in 1910 and 1912. We conclude that the 12 independent presidential electors of the Socialist Workers Party constitute one composite candidate within the meaning of sec. 5.19 (5), Stats. This is because under our election statutes there is no possible way for voters to vote separately for the candidacy of one individual person for presidential elector. Therefore, respondent erred in refusing to accept the nomination papers tendered by petitioners.

It is our considered opinion that the nomination papers which were presented to respondent for filing on September 22, 1964, wherein the names of all 12 candidates for presidential electors were printed on these papers as nominees, did not contravene the applicable statutes, and that respondent erred in refusing to accept the filing of the same.

While respondent did not on September 22, 1964, advance, as a reason for rejecting the filing, the fact that the name and occupation of one of the candidates named in the nomination papers for presidential elector was a paste-on, he advanced this fact in his return as a justification for not having accepted the tendered finding. He contends that it is impossible to determine when this paste-on was affixed to the nomination papers so there is no way of knowing whether this occurred before or after any particular signer subscribed the papers. The executed affidavits of the cir-culators, however, aver that the electors signed “the foregoing nomination paper” on the date stated opposite his name. The words “the foregoing nomination paper” purportedly refer to the nomination paper with the paste-on affixed. The affidavit of the circulator creates a rebuttable presumption of regularity. Respondent would have no right to reject the filing of these nomination papers because of the paste-ons in the absence of possession of some fact tending to rebut such presumption of regularity.

Lastly, respondent’s return raises the issue that there was no tender made by the individual petitioners on September 22, 1964, of their written declarations of intention to qualify if elected. The persons representing petitioners at the attempted filing on that date had these written declarations in their possession ready to file the same with respondent, but deemed it a useless gesture to tender the same after respondent refused to accept the filing of the nomination papers. We determine that respondent’s rejection of the tendered nomination papers excused petitioners from tendering such written declarations.

It is ordered that a peremptory writ of mandamus issue to respondent, Robert C. Zimmerman, secretary of state, commanding and directing him to do the following acts:

(1) To accept for filing in his office the nomination papers of James E. Boulton, Wayne Leverenz, Albert Stergar, Ted Odell, Myrtle C. Kastner, Betsy Stergar, Florence Kirkland, Earl Plaster, Elaine Goodreau, James Eyman, Duane Witkowski, and Lorraine Fons as candidates for presidential elector of the Socialist Workers Party, which nomination papers he rejected on September 22, 1964.

(2) To certify to all county clerks of the state of Wisconsin pursuant to sec. 6.19 (1), Stats., the names of Clifton DeBerry and Edward Shaw as candidates of the Socialist Workers Party for the offices of President and Vice-President, respectively, of the United States, in order that said county clerks may perform the duties imposed upon them by secs. 6.21 and 6.25, with respect to printing the names of said two candidates for President and Vice-President on both facsimile and regular ballots.

       Whether one set of nomination papers may be circulated which names a party’s independent candidates for President and Vice-President, and also the slate of 12 presidential electors pledged to such candidates, was not urged by petitioners. We, therefore, have found it unnecessary to consider the validity of such a procedure.


author: Hallows, J.

text:
    Cook, by Guardian ad litem, and another, Plaintiffs and Respondents, v. Thomas and another, Defendants: Miller and another, Defendants and Appellants.

      September 28

    November 24, 1964.

      For the appellants there was a brief by Everson, Whitney, O’Melia, Everson & Brehm of Green Bay, and oral argument by John C. Whitney.

    For the respondents there was a brief by Davis, Soquet & Cherney of Green Bay, and oral argument by Colburn G. Cherney.

   Hallows, J.

The basic question raised by the defendants’-appellants’ motions for a nonsuit, a directed verdict, and finally to change the answers in the verdict, is whether Miller was entitled to the application of the emergency rule as a matter of law. The trial court in instructing the jury gave the standard emergency-rule instruction, Wis J I— Civil, Part I, 1015, and in sustaining the verdict reasoned in an exhaustive 73-page opinion the jury could have reasonably found that no emergency existed and Miller was negligent in his speed and in the management and control of his auto or in the alternative that although an emergency existed Miller contributed to the emergency by his negligence as to speed and management and control and therefore deprived himself of the benefit of the rule.

There are several versions of the accident but it is at least agreed the weather was stormy, snow was blowing, the road was hard to see and slippery, and the cars were being driven with their lights on and with their windshield wipers working. Highway 41 at the scene of the accident is approximately 22 feet wide and runs generally north and south. Miller was driving south with a car preceding him some 250 feet and nine or 10 cars following him. Thomas was proceeding north in a line of cars when his car skidded into Miller’s lane.

According to Miller’s version, he was driving about 30 miles per hour shortly before the accident. He stated to a traffic officer after the accident he was going about 25 miles an hour when Thomas swerved into his lane 50 to 75 feet in front of him and the collision occurred about one or one and one-half seconds later while the Thomas car was still headed diagonally toward him in a northwesterly direction.

Thomas testified he was driving 20 miles an hour in his lane when his right-front wheel went off the road onto the shoulder and his car went out of control when he attempted to get it back on the road. He skidded into Miller’s lane when Miller was about 300 feet distant. He unsuccessfully attempted to brake his car but it righted itself when the front wheels touched the tire tracks of the southbound lane and started back into Thomas’ lane in a northeasterly direction. At this time Miller was 200 to 250 feet away.

The plaintiff Mary Ann Cook testified that immediately before the accident while she was adjusting the radio she heard Miller exclaim, “Oh no” three times and glancing up saw the Thomas car coming into their lane about 200 feet away and within four or five seconds the impact occurred. She testified Miller was traveling 15 to 20 miles per hour and did not brake or turn the car. Hicks who was driving behind Miller at 20 miles per hour puts Thomas’ car 130 to 150 feet from Miller’s when Thomas slid into Miller’s lane, and Dr. Boville driving behind Thomas testified he was driving between 28 and 32 miles an hour and the distance between the Miller and Thomas cars was about 160 feet when Thomas crossed the center line. The testimony of the passengers in the Thomas car puts the distance between the two cars as 200 to 250 feet up to 300 feet.

The testimony in relation to the time which elapsed between the instant the emergency arose and the impact varied from Miller’s of one to one and one-half seconds to Dr. Bo-ville’s of three or four seconds, to Thomas’ of four seconds to Mary Ann Cook’s of four to five seconds. However, calculating the time lapse on the basis of the combined various distances between the cars with combinations of their speeds produces time intervals of a maximum of five and seventy-two hundredths seconds as computed by Miller and a minimum of seven and eight-tenths seconds as computed by Thomas.

The application of the emergency rule rests upon the psychological fact that the time which elapses between the creation of the danger and the impact is too short under the particular circumstances to allow an intelligent or deliberate choice of action in response to the realization of danger. Prosser, Law of Torts (3d ed.), ch. 5, p. 171, sec. 33; Kaestner v. Milwaukee Automobile Ins. Co. (1948), 254 Wis. 12, 35 N. W. (2d) 190; Papacosta v. Papacosta (1957), 2 Wis. (2d) 175, 85 N. W. (2d) 790; Siegl v. Watson (1923), 181 Wis. 619, 195 N. W. 867; Baird v. Cornelius (1961), 12 Wis. (2d) 284, 107 N. W. (2d) 278; Deignan v. New Amsterdam Casualty Co. (1958), 2 Wis. (2d) 480, 87 N. W. (2d) 529. This time interval may in some cases be so short that no choice of alternative action can be made. The reaction is practically instinctive or intuitive and as a matter of law there can therefore be no negligence. See Klas v. Fenske (1946), 248 Wis. 534, 22 N. W. (2d) 596. And, this is so for inaction as well as action. An emergency may exist in a layman’s sense, Hoehne v. Mittelstadt (1948), 252 Wis. 170, 31 N. W. (2d) 150; Roberts v. Knorr (1951), 260 Wis. 288, 50 N. W. (2d) 374, which requires quick action and thinking upon the part of the driver but the time is not so short as to relieve the actor from exercising ordinary care in his reaction to the danger. Whether the doctrine should be applied and if so, whether an instruction should be given to the jury to determine the fact question of the existence of an emergency or whether the doctrine should be applied as a matter of law is in the last analysis a question of degree in terms of time within which a person is required to act.

When this court has held an emergency existed as a matter of law it is apparent the basic reason has been that the time for thinking or deciding what to do when the danger became apparent was so short that a person so confronted through no fault of his own ought not to be held negligent regardless of what he did or did not do to avoid the danger. Under the particular facts an emergency existed as a matter of law involving the following time intervals: Four seconds, Papacosta v. Papacosta, supra; three and one-half seconds, Havens v. Havens (1954), 266 Wis. 282, 63 N. W. (2d) 86, 47 A. L. R. (2d) 1; three seconds, Schumacher v. Klabunde (1963), 19 Wis. (2d) 83, 119 N. W. (2d) 457; two and one-half seconds, Hoehne v. Mittelstadt, supra; two seconds, Riehl v. De Quaine (1964), 24 Wis. (2d) 23, 127 N. W. (2d) 788; Roberts v. Knorr, supra; less than two seconds, Rude v. Algiers (1960), 11 Wis. (2d) 471, 105 N. W. (2d) 825. Recently in Wanserski v. State Farm Mut. Automobile Ins. Co. (1964), 23 Wis. (2d) 368, 127 N. W. (2d) 264, we held a five-second interval while perhaps not an emergency as a matter of law constituted at least a jury question.

When the time lapse cannot be said to be so short as to constitute an emergency as a matter of law an emergency may still exist as a matter of fact if the time lapse is still too short for deliberate and intelligent choice of action. The emergency rule is a special application of the ordinary-prudent-man rule under like circumstances treating the necessity for rapid decision as a factor “in determining the reasonable character of his choice of action.” 2 Restatement, Torts, p. 796, sec. 296, Emergency. In an emergency the law does not require of the actor more than it is reasonable to expect of an ordinary prudent person under the same circumstances and it is considered such a person in an emergency does not necessarily make the best, safest, or wisest choice of action or inaction.

Miller contends the time interval was variously estimated by witnesses at one to five seconds. This is correct but there is other testimony of a greater time interval arrived at by computing the various distances between the cars with the combined speeds of the two cars. If this court could accept, which it cannot, a five-second interval as a certainty, a most difficult question would be presented. But five seconds is not a certainty and there is evidence that the time interval could be longer, so much longer a question of fact arises. Miller was given the benefit of the emergency instruction. On the state of the record we cannot hold that an emergency existed as a matter of law.

The jury in its ultimate-fact verdict found Miller 25 percent causally negligent. This finding we consider to be sustained by the evidence. The jury could have found that the time lapse was so great as not to create an emergency and Miller was negligent in management and control of his car in not applying his brakes or turning to the right. It is contended it was so slippery that braking might put one into a skid but there was testimony that a gradual turn to the right could have been made. If the jury adopted the Thomas version, which it could well have done, Miller would have had time to do some braking and turning. Whether such action would ultimately have avoided the collision in fact is not the test. The test is whether such action would have tended to avoid the impact or lessened its severity.

The jury could have on the evidence found Miller guilty of speed in view of the conditions of the weather and the road. If, as Miller contends, it was so slippery it was dangerous to brake, the jury could determine Miller’s speed of about 30 miles per hour was greater than was reasonable and prudent under the conditions and was causal because it prevented or retarded Miller after seeing the danger from slowing down or stopping. Thelen v. Machotka (1954), 268 Wis. 1, 66 N. W. (2d) 684; Jewell v. Schmidt (1957), 1 Wis. (2d) 241, 83 N. W. (2d) 487; Heagney v. Sellen (1956), 272 Wis. 107, 112, 74 N. W. (2d) 745, 75 N. W. (2d) 801.

The conflicting testimony presented a jury question. The jury chose to accept the Thomas version and rejected Miller’s. Since there is credible evidence to support the verdict, this court cannot adopt Miller’s version as a matter of law.

By the Court. — Judgment affirmed.


author: Heffernan, J. Per Curiam

text:
    Moldenhauer, Appellant, v. Faschingbauer, by Guardian ad litem, Respondent.

      October 26

    November 24, 1964.

      For the appellant there was a brief and oral argument by Robert R. Gavie of Spring Valley.
    For the respondent there was a brief by Wickham, Borgelt, Skogstad & Powell, attorneys, and Arthur Wickham of counsel, and oral argument by Thomas N. King, all of Milwaukee.

       Motion for rehearing denied, without costs, on February 2, 1965.

   Heffernan, J.

The trial judge saw fit to order a new trial in the interests of justice. The authority of the trial court to do so is set forth in sec. 270.49 (2), Stats. The statute requires that when a new trial is ordered on this ground, the judge shall set forth his reasons in detail.

“Every order granting a new trial shall specify the grounds therefor. In the absence of such specification, the order shall be deemed granted for error on the trial. No order granting a new trial in the interest of justice shall be valid or effective, unless the reasons that prompted the court to make such order are set forth in detail therein or the memorandum decision setting forth such reasons is incorporated by reference in such order. The court may grant or deny costs to either party.”

Numerous cases before this court have interpreted this provision. We have heretofore held that an order for a new trial in the interests of justice cannot be sustained unless the judge’s reasons are set forth in the requisite detail. Guptill v. Roemer (1955), 269 Wis. 12, 68 N. W. (2d) 579, 69 N. W. (2d) 571; Dowd v. Palmer (1944), 245 Wis. 593, 596, 15 N. W. (2d) 809; Buetow v. Hietpas (1948), 253 Wis. 64, 33 N. W. (2d) 201; Bradle v. Juuti (1950), 257 Wis. 523, 44 N. W. (2d) 242; Peters v. Zimmerman (1957), 275 Wis. 164, 170, 81 N. W. (2d) 565.

We have also held that the reasons for the judge’s action must be set forth in the order or set forth in a separate memorandum or decision. That memorandum to be effective must be incorporated by reference in the order. Guptill v. Roemer (1955), 269 Wis. 12, 20a (Rehearing), 69 N. W. (2d) 571.

The statute makes it clear that the legislature, in granting to the trial judge the power to upset a jury verdict, required that reasons for such action be set forth. To fail to provide any reasons results in an order that must be reversed. It also follows that if the reasons set forth are patently inadequate or fail to give some evidence that justice has miscarried, the order is equally ineffective.

It is our opinion that the memorandum which was incorporated by reference in the order for a new trial was inadequate. As set forth in the statement of facts, the respondent did move for the dismissal of the insurance company that was originally a party defendant. It became known, at least to counsel, during the course of the trial that the insurance company originally made a defendant was not the liability insurer but was merely the carrier for collision and comprehensive coverage for the insured’s automobile, and therefore was not properly concerned in this lawsuit. The respondent’s motion was granted.

The trial judge avers in his memorandum that this dismissal “unsettled the jury,” creating the impression that the name of an undisclosed insurance company was being withheld.

We find it contrary to experience and reason to hold that the absence of an insurance company as a party defendant would be likely, at least in the absence of further facts, to result in an adverse feeling toward the defendant. The experience in this state and elsewhere leads us to conclude that when there is no insurance company named as a defendant, it is commonly believed that lower verdicts are likely to result. It is the view of many state legislatures that allowing the direct joinder of an insurance company results in larger, if not excessive, verdicts. We do not believe that the Wisconsin experience bears this out. However, the respondent’s contention that the dismissal of the insurance company would be likely to result in a larger verdict is indeed a novel proposition. The dismissal of the insurance company is a result that defendants’ attorneys frequently strive for, albeit with little success.

Perhaps a new trial in the interests of justice is in fact necessary. However, the condition of the record can only leave this to speculation. If the interests of justice require a new trial, sufficient reasons therefor must be set forth, and to the extent that the trial judge detailed them at all, we deem them insufficient. To the extent that any factor other than a dismissal of the insurance company may have prompted the action of the trial judge, the memorandum and order are silent. We, therefore, reverse the order of the trial court for failure to set forth with sufficient particularity the reasons for ordering the new trial.

While we cannot agree with the learned trial judge’s decision that a new trial is necessary on all issues, from a review of the entire record we must conclude that the damages are excessive. To that extent, we are in full accord with what we presume to be another factor which troubled the trial judge, although this was not explicitly set forth. We, therefore, direct that a new trial be granted on the issue of damages only, or, in the alternative, to allow the plaintiff to accept an award which would represent a reasonable amount as compensation for the plaintiff’s damages as may be determined by the trial judge. Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393; Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis. (2d) 568, 117 N.W. (2d) 660.

By the Court. — Order reversed and remanded for further proceedings. The trial court is directed to grant a new trial on the issue of damages giving the option, however, to the plaintiff in lieu of the new trial to have judgment for such reduced amount that the trial court deems reasonable. It is further ordered that the appellant be denied the taxation of costs for the brief in excess of 40 pages.

The following opinion was filed February 2, 1965 :

Per Curiam

(on motion for rehearing). The defendant-respondent requests that the court rule upon his motion for review made pursuant to sec. 274.12, Stats. The motions after verdict made by respondent and presented to the trial court, excepting the motion for a new trial in the interest of justice, were overruled by the trial court without memorandum opinion. These motions, in the main, contend that plaintiff was negligent as a matter of law as to lookout, and that this being so the answers to negligence and comparative-negligence questions could not stand. If the language of the opinion does not clearly reflect our opinion on these questions, let it now be said that the court in conference thoroughly considered the liability questions as presented by the motion to review. We were then, and are now, of the opinion that there was credible evidence to sustain the jury’s conclusion that plaintiff was not negligent as to lookout or otherwise and that the verdict as to the liability features should be approved.

The motion for rehearing is denied without costs.


author: Currie, C. J.

text:
    City of Seymour and another, Appellants, v. Industrial Commission and another, Respondents.

      October 26

    November 24, 1964.

      For the appellants there was a brief and oral argument by Edward T. O’Neill of Fond du Lac.
    For the respondent Industrial Commission the cause was argued by Beatrice Lampert, assistant attorney general, with whom on the brief was George Thompson, attorney general.
    For the respondent Jankowski there was a brief by Sigman, Sigman & Shiff of Appleton, and oral argument by Samuel Sigman.

   Currie, C. J.

The employee Jankowski’s expert witnesses testified that in their opinion one or both of his violent falls on the icy pavement in March, 1959, aggravated the pre-existing chordoma by damaging the surrounding tissues and making them more susceptible to the growth of the tumor. Based on this testimony the commission in its findings of fact found:

“. . . that although his tumor pre-existed his injury of March 9 and March 16, it was asymptomatic and was not disabling; that the injury of such dates provoked a reaction and stimulated the development of the tumor, which had been quiescent;” . . . .”

Appellants challenge this finding, chiefly on the ground that the expert testimony supporting it exceeds the bounds of reasonableness because such testimony espouses a medical theory that has no basis in recognized and authoritative medical literature. Some of this testimony is attacked also on the ground that it was based upon erroneously assumed facts.

A considerable portion of the briefs is devoted to the preliminary issue of the scope of judicial review of the commission’s findings of fact in workmen’s compensation cases. Past decisions of this court make it clear that, in passing on the issue of whether the evidence sustains a finding of the commission made in a workmen’s compensation proceeding, the test is whether there is credible evidence which, if unexplained, would support the finding. Shawley v. Industrial Comm. (1962), 16 Wis. (2d) 535, 114 N. W. (2d) 872; Wagner v. Industrial Comm. (1956), 273 Wis. 553, 565, 79 N. W. (2d) 264, 80 N. W. (2d) 456; Hills Dry Goods Co. v. Industrial Comm. (1935), 217 Wis. 76, 85, 258 N. W. 336. See Motor Transport Co. v. Public Service Comm. (1953), 263 Wis. 31, 46, 47, 56 N. W. (2d) 548, where the term “if unexplained” is elucidated. “Unexplained” is not the equivalent of uncontradicted, inasmuch as the issue of credibility is solely for the commission when there is a direct conflict in testimony.

Appellants assume that the scope of review here is governed by sec. 227.20 (1) (d), Stats., of the Wisconsin Administrative Procedure Act. They err in their assumption because sec. 227.22 (2) provides, “Only the provisions of ss. 227.01 to 227.21 relative to rules are applicable to matters arising out of the workmen’s compensation act or the unemployment compensation act.” Whether there would be a material difference in the scope of review of the commission’s findings of fact in workmen’s compensation cases if the provision of sec. 227.20 (1) (d) were to be applied we find it unnecessary to determine here.

With respect to whether the testimony of Jankowski’s expert medical witnesses constituted credible evidence to sustain the commission’s finding of fact, we turn to Puhl v. Milwaukee Automobile Ins. Co. (1959), 8 Wis. (2d) 343, 99 N. W. (2d) 163. In that case this court held a jury award of $50,000 damages to a child necessarily implied a finding that prenatal injury was the cause of the child’s being born a Mongoloid. A physician had testified that it was his opinion to a reasonable medical certainty that the accident had caused this result. We approved the result reached by the trial court denying the award and stated (at pp. 353, 354):

“When scientific or medical theories or explanations have not crossed the line and become an accepted medical fact, opinions based thereon are no stronger or convincing than the theories. While this court has gone a long way in admitting expert testimony deduced from well-recognized scientific and medical principles or discoveries, nevertheless, the facts from which the opinion is made must be sufficiently established to have gained general acceptance in the particular medical field in which they belong. Otherwise, the opinion is based not on facts but conjecture.”

The expert testimony adduced before the commission was that a chordoma is rather a rare tumor of low-grade malignancy. It originates from embryonic remnants of the noto-chord, which notochord develops into the spinal cord. While it is estimated that two percent of the population have such embryonic remnants or “rests” which predisposes them to chordoma, very few ever develop a chordoma. One expert witness testified that only .01 percent of this two percent of the population ever are afflicted with such a tumor. Another expert witness testified that only one percent of all spinal cord tumors are chordomas.

Three expert medical witnesses testified in behalf of Jankowski: Doctors Oudenhoven, Cyrus, and Pessin.

Dr. Oudenhoven, although but thirty-three years of age at the time he testified in 1961, has an impressive record. After graduation from medical school in 1952 he was a neurological resident at St. Vincent’s Hospital at Green Bay, assistant neurosurgeon at Great Lakes Naval Training Station, and acting neurosurgeon at the Veterans Administration Hospital at Dayton, Ohio. While at Dayton he was also an instructor in neurological surgery at Ohio State University Medical School. Dr. Oudenhoven testified that Jankowski’s condition was distinctly related to his fall and that the trauma therefrom definitely aggravated or facilitated the development of this condition. On cross-examination the doctor stated his opinion “gets down to a sequence of events.”

Dr. Cyrus is a pathologist specializing in neuropathology and is consultant to several Milwaukee hospitals. He is also on the teaching staff of Marquette University Medical School. Although he never attended Jankowski or examined him, Dr. Cyrus had the benefit of Jankowski’s complete medical history as disclosed by the records of St. Vincent’s Hospital of Green Bay and specimen slides of tissue taken from the tumor area. He expressed the opinion that the trauma from the fall most probably contributed to the tumor’s alteration and that he could with reasonable certainty declare “that the chordoma expression is related to the trauma.” Dr. Cyrus further testified: “The trauma aggravated the tumor and facilitated its extension.” By the use of the word “facilitated” he meant that the trauma permitted the tumor’s extension beyond the site of confinement by providing routes and avenues, which, prior to the occurrence of the trauma, “were not to its avail.” The avenues of extension were provided when the trauma caused an inflammatory reaction in the tissues adjacent to and extending into the tumor. The presence of scar-tissue formation in the microscopic slides confirmed that the inflammatory reaction had occurred. Where there is fibrous tissue there was once succulent, inflammatory tissue.

For thirty years Dr. Pessin has been engaged in his profession as a clinical pathologist and anatomical pathologist. Since 1945 he has been an associate professor of pathology in the Marquette University Medical School and pathologist and director of laboratories at St. Mary’s Hospital in Milwaukee. At one time he was senior pathologist at the state Laboratory of Hygiene at the University of Wisconsin in Madison. Prior to testifying he examined Jankowski’s medical records and the slides of tissue. Dr. Pessin testified: His opinion to a reasonable medical certainty is that the trauma aggravated a pre-existing chordoma by causing disruption of the tissues and by creating spaces and avenues of extension so 'that the chordoma would spread; as a chordoma spreads beyond its confinement it invades soft parts around bone, including nerves; this causes compression of the nerves with resulting pain. On cross-examination he stated that there was no clinical evidence of the trauma having provided avenues of extension except the chronological sequence of events.

The city and its insurance carrier called but one medical expert witness, Dr. Enzer. For many years he has been a specialist in pathology. Since 1927, he has been director of pathology and clinical laboratories at Mt. Sinai Hospital in Milwaukee. He is undoubtedly a highly competent and greatly respected specialist in his field. Dr. Enzer testified: In his opinion Jankowski’s falls had nothing to do with the latter’s disability due to a malignant tumor of the spinal cord; there is no basis for relating a single trauma to the cause, development or behavior of a malignant tumor; statistics of the two World Wars disprove that trauma causes or aggravates cancer; motor vehicle accident statistics also are to the same effect; the one exception is injuries which lead to longstanding damaged tissue which fails to heal; he has never seen a malignant tumor developing from a fracture or in the jaw of a person whose tissue was injured by a dentist; there is no evidence that the trauma of surgery has initiated a development, or aggravation, of a tumor; in order for a trauma to be effective to aggravate a tumor it should be proven to have applied itself to the tissue exactly where the tumor arose.

Appellants request this court to take judicial notice of certain authoritative medical literature dealing with cancer. They contend that such medical literature establishes these two scientific facts: (1) The aggravation of pre-existing-cancer by trauma is only a possibility and not a probability; and (2) in order for trauma to aggravate or accelerate the growth of pre-existing cancer it must have been directly applied to the tissue where the cancer is. This court does not feel that on the face of this record it can accept as scientific fact something that is directly contrary to the testimony of Doctors Oudenhoven, Cyrus, and Pessin. These three men are all specialists in either neurosurgery or pathology. Two of these men at the time of testifying were teaching in a leading medical school, and the third had taught in one.

Furthermore, I Larson, Law of Workmen’s Compensation, p. 192.39, sec. 12.20, states:

“ ‘Aggravating’ the disease is exemplified by cancer cases in which the malignant growth is ruptured or spread by occupational exertions, or in which its development is hastened by strains, impacts, or accidents in the course of employment.”

Appellants call our attention to the following comments of the learned trial judge appearing in his memorandum decision :

“Our own view of this testimony is that it is speculative and conjectural and without substantial scientific foundation. We cannot, however, presume to substitute our opinion for that of medical experts.”

Had we been the trier of fact we might well have reached the same conclusion as the trial judge and found contrary to what the commission did. We cannot, however, hold as a matter of law that respondent’s expert medical testimony is incredible because contrary to scientific facts or knowledge.

We now turn to the other bases upon which appellants contend we should reject respondent’s expert medical opinion testimony. The appellants contend that such opinions were predicated upon the sequence of events starting with Jankowski’s two falls. It is argued that by permitting expert opinion based on a sequence of events the burden of proof is thereby shifted from the employee to the employer requiring him to disprove that a preceding event in the chain was a cause of the employee’s disability. We do not find this argument persuasive. Most expert medical testimony presupposes a prior sequence of events. The fact that such testimony is likely to be believed by the trier of fact, if not successfully rebutted, constitutes no shift in the burden of proof.

Specifically appellants charge that Dr. Cyrus’ medical opinion was grounded on two erroneous assumptions of fact, viz., (1) that Dr. Nellen’s surgery had not invaded the site of the tumor so that the trauma of the Nellen operation was eliminated as a cause of the tumor’s acceleration; and (2) that Jankowski had a “profound disability” prior to the Nellen operation.

With respect to the first mentioned point, Dr. Cyrus testified “. . . the operative procedure performed by Dr. Nellen was such that it did not enter or approach the tumor, as its position was determined by Dr. Oudenhoven.” Dr. Cyrus based this statement upon the hospital medical records, in which the location of the Nellen and the first Oudenhoven operations are minutely described. After reading the descriptions of these two operations from these hospital records we are unable to determine the truth of the above-quoted extract from Dr. Cyrus’ testimony. Both operations were in the same general location although Dr. Oudenhoven’s was more extensive than Dr. Nellen’s. In any event the word “approach” as used by Dr. Cyrus is a relative term.

Dr. Cyrus’ assertion that Jankowski had a profound disability of the right leg prior to the Nellen operation is substantiated by the evidence. Dr. Nellen noted in recording Jankowski’s personal past history: “Chief complaint: Pain in the right leg. Present illness: The patient has had pain in the right leg for several months and has had various types of treatment without relief.”

For the reasons previously stated herein we conclude that we cannot disturb the commission’s finding of fact, and, therefore, the judgment confirming the commission’s interlocutory order must be affirmed.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.

       “(1) . . • The court may affirm the decision of the agency, or may reverse or modify it if the substantial rights of the appellant have been prejudiced as a result of the administrative findings, inferences, conclusions or decisions being:
      “(d) Unsupported by substantial evidence in view of the entire record as submitted

       Lawyers’ Medical Cyclopedia, edited by Charles J. Frankel and published by The Allen Smith Co., Indianapolis, Indiana, 1960, Vol. 5, Ch. 38, entitled Cancer and The Law; Medicolegal Considerations of Occupational Cancers by W. C. Hueper, M. D., Lawyers’ Medical Cyclopedia, Vol. 5, page 558; Occupational and Post-Traumatic Cancer, by Fred W. Stewart, M. D., Pathologist, Memorial Hospital, New York City. The Bulletin, New York Academy of Medicine, March, 1947, pages 145-162; Trauma and Disease, by Brahdy and Kahm, published by Lea & Febiger, Philadelphia, 1937. Ch. XIV by Leila Charlton Knox, M. D.; Disease and Injury, by Leopold Brahdy, M. D., published by J. P. Lippincott Co., Philadelphia, 1961, Ch. 10.

       Among the cases cited by Larson in which compensation was allowed on the ground that the disability from cancer was accelerated by trauma are: Travelers Ins. Co. v. Rowand (5th Cir. 1952), 197 Fed. (2d) 283; Macon County Coal Co. v. Industrial Comm. (1940), 374 Ill. 219, 29 N. E. (2d) 87; Pixley v. Employers’ Mut. Liability Ins. Co. (La. App. 1958), 102 So. (2d) 113; Taylor v. Mansfield Hardwood Lumber Co. (La. App. 1953), 65 So. (2d) 360; In re Sullivan’s Case (Mass. 1962), 186 N. E. (2d) 601; Erickson v. Knutson (1952), 237 Minn. 187, 54 N. W. (2d) 118; Pittman v. Pillsbury Flour Mills, Inc. (1951), 234 Minn. 517, 48 N. W. (2d) 735; Dixie Pine Products Co. v. Dependents of Bryant (1956), 228 Miss. 595, 89 So. (2d) 589; Ricciardi v. Marcalus Mfg. Co. (1957), 47 N. J. Super. 90, 135 Atl. (2d) 339; Russo v. Wright Aeronautical Corp. (1948), 137 N. J. L. 346, 60 Atl. (2d) 263; Lefkowitz v. Silverstein (1960), 11 App. Div. (2d) 841, 203 N. Y. Supp. (2d) 122; De Angelo v. American Can Co. (1960), 11 App. Div. (2d) 571, 200 N. Y. Supp. (2d) 614; Smith v. Durham Aircraft Service, Inc. (1960), 11 App. Div. (2d) 552, 200 N. Y. Supp. (2d) 76; Glover v. Columbia Hospital of Richland County (1960), 236 S. C. 410, 114 S. E. (2d) 565; Boyd v. Young (1951), 193 Tenn. 272, 246 S. W. (2d) 10.


author: Fairchild, J. Hallows, J.

text:
    Peterson, d/b/a Happy Hollow Guernsey Farm, Respondent, v. Greenway, Appellant.

      October 26

    November 24, 1964.

      For the appellant there was a brief by Gwin & Fetsner, attorneys, and C. A. Richards and John W. Fetsner of counsel, all of Hudson, and oral agrument by Mr. Richards.

    For the respondent there was a brief by Gavie & Jansen, attorneys, and William A. Jansen and Robert R. Gavie of counsel, all of Spring Valley, and oral argument by William A. Jansen.

   Fairchild, J.

“What dire offense from amorous causes springs!
“What mighty contests rise from trivial things!”

There is no serious dispute but that it was defendant’s Angus who, in 1960, had Happy Hollow holidays, siring seven calves. Mr. Greenway seems to accept vicarious liability, under sec. 172.01, Stats., for that which Angus wrought. The principal question on appeal is whether there is evidence in the record to support the finding that Angus’ efforts caused the deaths of Lena, Lindis and Margarett and destroyed the capacity of Kolleen, Lilac and Lavender to perform as demanded in bovine society.

It is clear enough that, but for Angus’ intrusion, the heifers would not have made their debuts until the age of about twenty-one months, and would then have been offered to a registered Guernsey bull. Best-laid schemes agley, Lena became pregnant at six months, Lindis at nine, Margarett at thirteen, and Kolleen, Lilac, and Lavender at seventeen. Lena and Lindis died calving, Margarett three or four months after calving. Kolleen, Lilac, and Lavender survived, but declined, though afforded ample and timely opportunities, to submit to the advances of a Guernsey bull. They were ultimately sold for slaughter. Lenore, who had reached the age of twenty-one months before her dalliance with Angus, produced a live calf, was milked, later brought a good price, and seemed little the worse for wear.

Plaintiff testified that the calves were too big in proportion to the heifers. The calves were more blocky, had wider hips and heads than Guernsey calves. Lena and Lindis died in the process of calving or shortly thereafter. Margarett’s reproductive organs were stretched out of shape, and sustained a large and unusual tear. He said she was a “pus case” and was put out to pasture. She got no better and finally died. Kolleen was injured by the calf being too big for her. The hips of Lilac and Lavender were stretched apart and he observed damage to their membranes.

The court did not permit plaintiff to answer a number of questions calling for his opinion whether the pregnancy at the respective ages caused the death of three heifers and the rejection of further breeding by three others. He was permitted to state that the damage to Margarett was caused by breeding at an untimely age and to state that all six were bred too young and the breeding at those ages caused the “damage.”

Plaintiff was thirty-seven years old and had farmed since age eighteen or nineteen. He had built up his herd of registered Guernseys, with 39 cows being milked, and 90 to 100 animals in all. He had completed a course at a school for cattlemen, studying the reproductive organs of cattle, had attended high-school vocational courses during the winters, and had studied material in the field of genetics. He had seen close to 1,000 calves born and had assisted with many of them.

Plaintiff’s experience and study may well have placed him in a better position to come to a correct conclusion concerning causation than a person not having the same qualifications, and his opinions might have been an aid to the court in the process of fact finding. Receiving his opinion testimony on this subject would not have been an abuse of discretion.

The county court did not file a memorandum nor state on the record the evidence relied on in finding causation. We do not know whether the court relied upon plaintiff’s statement, in general terms, that the early breeding caused the damage. This statement was made late in the trial after the court had refused on several occasions to hear plaintiff’s opinions on the causal relationship between the early breeding of each heifer and the particular death or condition of that heifer. Under the circumstances we do not consider this one generalized statement a satisfactory foundation for the finding that Angus’ activity caused the loss of all six.

Neither does it appear whether the county court considered that the sequence of events themselves placed causation in the field of probabilities rather than mere guessing or conjecture among possibilities. The record indicates that a Guernsey heifer would have more difficulty with a mixed-breed Black Angus calf than with a Guernsey, that the calves were too large for the heifers, that although plaintiff ordinarily loses only one calf out of 20 in his herd, six out of seven of the mixed breed calves did not survive, and that of the seven heifers, Lenore, the one who calved successfully and continued in good condition, had reached the age at which plaintiff’s heifers are usually bred.

It may be, upon this analysis, that the trier of the facts could properly find, without opinion testimony, that the deaths of Lena and Lindis in the very process of calving were chargeable to Angus and defendant. The question is more doubtful as to Margarett, whose death did not occur for several months after calving. As to the apparent loss of capacity of the other three to breed, we conclude that the present record leaves causation a matter of speculation among possibilities.

The county court allowed as damages the value of the six heifers, less amounts plaintiff received for three of the heifers and for Lenore’s calf. The value of the six heifers was deemed to be $3,500. A field representative for the American Guernsey Cattle Club testified he knew the values of Guernseys and had seen plaintiff’s heifers before May, 1960. He said that five of them would be worth about $500 per head and the one better animal about $1,000. He did not identify the better animal, nor state why she was better.

At best the finding of causation could only be partially sustained, and it would be impossible to identify which heifer was worth $1,000. We conclude that the appropriate disposition is to reverse the judgment, and direct the county court to set aside finding of fact numbered 8 (stating the damage caused by the breeding by the Angus), to set aside finding of fact numbered 9 insofar as it determines the value of Lena, Lindis, Margarett, Kolleen, Lilac, and Lavender, and to hold such further hearings and hear such additional evidence as may be necessary to resolve the question of the damage caused by the breeding.

By the Court. — Judgment reversed, cause remanded for further proceedings in accordance with the opinion on file.

Hallows, J.

(dissenting). I would affirm. The evidence of damage to the six heifers is undisputed. One hardly needs more opinion evidence to establish the causal relationship between the early breeding and the damage and the subsequent death of three heifers and the uselessness as dairy cows of the other three. The distinction between a possibility and a probability is a matter of degree in the relationship of cause and effect. What this record lacks in expert testimony is supplied by common sense.

On the further hearing the court should admit the rejected opinion testimony of the plaintiff on causation. Causation and damages are at issue as to each heifer.

This case recalls the famous case of Kopplin v. Quade (1911), 145 Wis. 454, 130 N. W. 511, in which Mr. Justice Barnes dealt with what he called a somewhat morganatic mesalliance between the “highbrow” thoroughbred Holstein-Friesian heifer, Martha Pietertje Pauline, and a lowly born and nameless plebeian bull, who had similar aspirations beyond his humble station in life.

       Alexander Pope, “The Rape of the Lock,” Canto 1, Line 1.

        Vates v. Cornelius (1884), 59 Wis. 615, 18 N. W. 474; Smith v. Atco Co. (1959), 6 Wis. (2d) 371, 387, 94 N. W. (2d) 697; Anno. 49 A. L. R. (2d) 932, 961, “Admissibility of opinion evidence of lay witnesses as to diseases and physical condition of animals.”