author: Heffernan, J.

text:
    Kink and wife, Respondents, v. Combs, Appellant.

      June 2

    June 25, 1965.

      For the appellant there were briefs and oral argument by William L. McCusker of Madison.
    For the respondents there- was a brief by Jack McManus, attorney, and Hart, Kraege, Jackman & Wightman of counsel, all of Madison, and oral argument by Arnold J. Wightman.

   Heffernan, J.

In the opening statement to the jury Mr. McManus, trial counsel for the plaintiffs, stated:

“The testimony will be that . . . Mrs. Kink felt ... a hard object which she will testify in her opinion was a sexual organ . . . that she was covered with saliva and subsequently that upon this black dress, which we shall enter into evidence, she will testify that semen stains were ejected upon this dress by Mr. Combs, who had his physical organ exposed.”

In fact, however, Mrs. Kink did not testify that the hard object was a sexual organ or that semen stains were ejected upon the dress. The defendant contends that this reference to matters that were not in evidence was highly prejudicial and constitutes grounds for reversal of the verdict. We do not agree. An assertion made in an opening statement or in closing argument need not be founded upon direct evidence, provided that the facts so asserted may be inferred from the evidence. Horgen v. Chaseburg State Bank (1938), 227 Wis. 510, 515, 279 N. W. 33; and Affett v. Milwaukee & Suburban Transport Corp. (1960), 11 Wis. (2d) 604, 607, 106 N. W. (2d) 274.

“A statement as to matter that may fairly be inferred from the evidence is not within the condemnation of the rule.” 3 Am. Jur., Appeal and Error, p. 614, sec. 1073.

Our court has long recognized the necessity for a reasonable latitude in oral argument even after the evidence is in. Rogers v. Rosenfeld (1914), 158 Wis. 285, 149 N. W. 33. In the instant case the erroneous statement was made before the first witness was sworn, and cannot be considered as a misrepresentation made after all the facts were known. Certainly the acts which plaintiffs’ counsel referred to in his opening statement might reasonably be inferred from the evidence that was presented. In addition to Mrs. Kink’s testimony (supra), the cook stated that Mrs. Kink’s dress was “terribly messed” and that Mrs. Kink referred to it as being “specked.”

The able and experienced trial judge properly analyzed the evidence in a comprehensive written opinion:

“In addition to the testimony of Marcella Kink there was testimony of other witnesses, including that of the cook who was in the kitchen nearby at the time of the assault, relative to the nature of the assault, stains on the dress she was wearing at the time, and injury to her leg. Viewing the evidence as a whole and viewing the evidence of Marcella Kink in particular, we are satisfied that there was room for the jury to draw the inference that defendant, in assaulting the plaintiff Marcella Kink, had pressed up against her body with his privates and that there had been an emission against her dress. Upon the other hand, the jury could well have rejected any such inference. It was for the jury to analyze the evidence upon this point and accept or reject the contentions of the respective parties in regard thereto. We regard the matter as within the realm of reasonable inference and not within the realm of guess, speculation, or conjecture. Under the instructions of the court we can presume that, if the jury entertained a doubt, that it would not resort to guess, speculation, and conjecture but would resolve the matter against the plaintiffs. ... We can not say that counsel for the plaintiffs acted in bad faith or that he made any deliberate misrepresentation or misleading statements with respect to what he fairly expected the evidence to show. We can not assess prejudicial misconduct against him and defendant’s motion in this regard must be denied.”

Additionally, we would not set aside the trial court’s determination in this regard in the absence of a clear abuse of discretion. Schneck v. Mutual Service Casualty Ins. Co. (1964), 23 Wis. (2d) 649, 659, 128 N. W. (2d) 50; De Rousseau v. Chicago, St. P., M. & O. R. Co. (1949), 256 Wis. 19, 39 N. W. (2d) 764. Upon a review of the entire record, it cannot be said that the trial court abused its discretion; rather it properly exercised that discretion on the basis of the evidence presented in the course of trial. Frequently the gauge by which allegedly prejudicial statements are measured is the appropriateness of the verdict. It cannot be said that the damages, though admittedly high, were so excessive as to reflect passion or prejudice induced by an improper statement. The trial court concluded that upon a review of the evidence, the arguments, and briefs, justice was done.

Furthermore, we cannot conclude that defendant, with full knowledge that the arguments of plaintiffs’ counsel in the opening statement are not directly supported by the evidence, can lie back and be heard to complain only after an adverse verdict has been returned. If the defendant had been prejudiced, the fact that the evidence was not probative of plaintiffs’ counsel’s remarks was known to him at the close of plaintiffs’ case. By failing to move for a mistrial at that time defendant waived his right to assert prejudice later. Under analogous situations we have held that counsel claiming prejudice by reason of counsel’s misconduct must promptly make proper objections to the court. See Basile v. Fath (1925), 185 Wis. 646, 201 N. W. 247, 202 N. W. 367; State ex rel. Sarnowski v. Fox (1963), 19 Wis. (2d) 68, 119 N. W. (2d) 451. In the Basile Case it was alleged that during the argument to the jury, matters not before the jury were referred to. We said in that case (p. 651), “. . . counsel having remained silent when he could or should have spoken on such a matter so clearly requiring immediate action by the court, ought not to be permitted after verdict against him to try again.”

In the instant case the. defendant, if he felt aggrieved, should have moved for mistrial at the close of the plaintiffs’ case. See Smith v. Rural Mut. Ins. Co. (1963), 20 Wis. (2d) 592, 605, 123 N. W. (2d) 496.

Failure to make a timely motion can only be construed as an election to rely on the possibility of a favorable jury verdict. In Frion v. Craig (1957), 274 Wis. 550, 555, 80 N. W. (2d) 808, where the conduct of a juror was in question, we stated:

“Such course of afction is open to the obvious interpretation that he preferred to continue with the trial and take his chances with the outcome rather than move for a mistrial. . . . We consider that counsel thereby waived the issue of possible misconduct of a juror, which waiver precludes him from raising the issue on this appeal.”

See also Wetzler v. Glassner (1925), 185 Wis. 593, 598, 201 N. W. 740; and Milwaukee v. Milwaukee Amusement, Inc. (1964), 22 Wis. (2d) 240, 255, 125 N. W. (2d) 625.

The defendant also claims prejudicial error was committed by admitting in evidence the dress that Mrs. Kink allegedly wore at the time of the attack. Mrs. Kink testified that she wore the dress at the time of the assault and thereafter did not wear it, but put it away in a box. In December she gave the dress to one of her waitresses, who testified that since it did not fit, she did not wear it, but put it on a hanger in her closet. Mrs. Kink'was informed that the dress might have some evidentiary value, so she got it back. She then gave the dress to Mr. Elliott, an associate in the office of her trial counsel. Mr. Elliott produced the dress at the trial. The “chain of evidence” is thus complete, and there is no reason to doubt the authenticity of this exhibit. The defendant also objected on the basis that there was no proper identification of the stains on the dress. The plaintiff introduced testimony that the dress had not been cleaned nor tampered with since the assault. There was evidence that after the dress was given to Mr. Elliott that it was thrown on a chair in his office for several weeks. This technique can hardly be recommended as an ideal way to preserve evidence; however, there was testimony that the dress was in substantially the same condition as it was after the assault. As stated by 1 Conrad, Evidence, p. 622, sec. 734:

“Whether there has been a material change is for the determination of the trial court, which has a wide discretion in the matter.”

In this case it was within the discretion of the court to overrule the objection to admission and to leave to the jury the evaluation of the evidence. The able counsel for the defendant enjoyed the right of full cross-examination in respect to the careless handling of the dress and as the trial court said, “fully exploited” his position in respect to the weight of this piece of evidence in his argument to the jury.

The plaintiff failed to produce any scientific evidence to show that the marks on the dress were semen stains. In argument before the jury, the defense attorney properly commented upon this failure of proof. However, when the plaintiffs’ counsel wished to argue the point and to explain this failure, he was admonished by the trial judge, who thereupon instructed the jury that neither counsel could comment on any evidence not produced. The learned judge was in error in this respect. It is the accepted rule of law that when a party has failed to produce evidence in his possession, that in the due course of the case would normally be introduced, the adverse party may comment upon the fact that there is an inference that the nonproduced evidence would have been unfavorable.

In this case defense counsel did have opportunity to comment and argue upon the plaintiffs’ failure to produce scientific evidence that the marks were semen stains.

The court in instructing the jury acknowledged its previous error and made it clear to the jury that it was proper for defense counsel to point to the inference that arises against the party who fails to produce evidence that is within his control.

The following is the court’s instruction:

“Now, members of the jury, in the course of his argument to you Mr. McCusker made reference to the non-production of certain testimony by Mr. McManus relative to analysis of the stains on the dress. Now, under our law where a party has control of certain evidence, in this case the dress, it is the rule that the failure to produce evidence which might have to do with analysis of the dress and its contents can lead to an inference against the party who does not produce such evidence; and it was proper for Mr. McCusker in his argument to comment on that; and the Court was wrong in its instructions to you in stating that Mr. McCusker was not entitled to so comment.”

Defendant’s requested instruction is:

“. . . The non-production of evidence that would naturally have been produced by an honest and therefore fearless claimant permits the inference that its tenor is unfavorable to the party’s cause.
“It is a well-established rule that where relevant evidence which would properly be part of a case is within the control of the party whose interest it would naturally be to produce it, and he fails to do so, without satisfactory explanation, the jury may draw an inference that such evidence, would be unfavorable to him.”

We see no substantial difference between the instructions. The effect of each instruction is to inform the jury that the plaintiffs’ failure to produce the evidence could be commented upon by the opposing counsel, and that the jury in reaching a verdict could give consideration to an inference unfavorable to the plaintiffs as the result of the nonproduction of scientific evidence in regard to the nature of the stains.

While the proposed defendant’s instruction is correct, it is difficult to see that the one used is less favorable to him. In any event no trial court is obliged to mouth a magic formula and fail to do so at its peril. It is the feeling of this court that it is the better practice to tailor an instruction to the facts at hand in a manner that is most meaningful under the' circumstances. The instruction used embodied the substance of the rule of law, properly related it to the facts, and that is all that is necessary. Simon v. Van de Hey (1955), 269 Wis. 50, 68 N. W. (2d) 529; Herlitzke v. La Crosse Inter-Urban Telephone Co. (1911), 145 Wis. 185, 130 N. W. 59.

Nor can we agree with defendant’s contention that the trial court erred in refusing an instruction on the plaintiff’s failure to make a timely outcry. The requested instruction would require that a female who is sexually assaulted cry out and complain of the wrong done her at the first reasonable opportunity, and failure to do so under some circumstances is evidence that tends to discredit the veracity of the complaint. Under some fact situations the requested instruction would be proper. However, we believe that the trial court ruled correctly in concluding that giving such an instruction would have amounted to undue comment on one phase of the evidence. The facts of this case do not warrant the use of the demanded instruction. The assault took place without warning. The testimony revealed that Combs covered the victim’s mouth. She testified that she could not cry out at the actual time of the attack. Moreover, the moment she broke loose, she cried out to Peggy Kink (who saw the assault and did not need to be told of it), “Call Martin quick.” It would appear that the requested instruction would therefore be most inappropriate. The refusal to give the requested instruction was well within the discretion of the trial judge.

Defendant also complains that the trial judge improperly-included an instruction on the aggravation of a pre-existing condition. However, there was some evidence of pre-existing ailments of the nature complained of after the incident. Mrs. Kink, as the result of questioning by counsel for the defendant, stated that she did have a duodenal ulcer some years before. There was also evidence that could lead the jury to conclude that Mrs. Kink suffered certain phobic reactions prior to the incident. This instruction was obviously intended to prevent compensation for conditions not caused or aggravated by the incident of April 21st. The instruction was well qualified with such phrases as “disability which the plaintiff may have had” — “damages to the extent of such increase, if any.”

The following paragraph from the disputed instruction makes it clear that the trial judge was neither assuming a pre-existing condition nor an aggravation of that condition.

“If you find that the plaintiff Marcella Kink had a preexisting illness or condition which was dormant before the incident in question, but that such illness or condition was aggravated or brought into activity as a natural result of the incident in question, then you should include an amount which will fairly and reasonably compensate the plaintiff Marcella Kink for such damages as she suffered as a result of such aggravation or activation of her condition.”

The failure to give this instruction would have been highly prejudicial to the defendant.

Defendant relies also on a letter and affidavit of one of the jurors filed with the trial court after the verdict. Therein the juror stated:

“I could not hold out for my opinion that punitive damages were not warranted from sheer fatigue and I feel that I have failed to render a true verdict in this case.”

This is an attempt of a juror to impeach his own verdict, and is not countenanced by this court. Only in limited cases, e.g., if a verdict is reported erroneously by clerical error, will jurors be heard to complain that the verdict is in error. Brophy v. Milwaukee Electric Railway & Transport Co. (1947), 251 Wis. 558, 30 N. W. (2d) 76.

Olson v. Williams (1955), 270 Wis. 57, 70 N. W. (2d) 10, and a series of Wisconsin cases that precedes it point out the sound reasons of public policy behind this rule. Suffice it to say that if a showing that a juror was fatigued when he arrived at a verdict would result in setting it aside, the finality that we now confidently expect from a jury verdict would be at an end, and the jurors themselves would be harassed endlessly by the loser in his efforts to set aside their decision.

Appellant claims that the jury finding of $5,000 compensatory damages is excessive and should be set aside. Viewing the whole of the evidence in the case and in a light most favorable to the plaintiff, the learned trial court concluded that the award was not excessive. The trial court having heard all the evidence and seen the witnesses is peculiarly able to make a proper determination in this respect. It is not within our power as an appellate court to set aside a verdict as excessive unless it is so clearly excessive as to indicate that it was the result of passion, prejudice, or corruption, or it is clear that the jury disregarded the evidence or rules of law. Sennott v. Seeber (1959), 6 Wis. (2d) 590, 594, 95 N. W. (2d) 269, Bethke v. Duwe (1950), 256 Wis. 378, 384, 41 N. W. (2d) 277. This we cannot say. The award of damages is, in the absence of the factors mentioned above, in the discretion of the jury.

It is obvious from a reading of the record that an assault took place. There is evidence that the plaintiff was bruised, that she was mentally upset, that the incident caused her to “see the face of Combs” when other men were near her, and that she was unable to have sexual relations with her husband after the attack. Medical testimony corroborated some of the symptoms of the plaintiff following the attack. One of the medical experts testified that the assault had induced or aggravated a phobic reaction, and that this phobia would always remain a factor involving her relations with men.

There is undeniably conflicting evidence in regard to the injuries sustained, but the jury is the judge of the credibility of the witnesses, and their verdict will not be set aside merely because the damages are high. As the trial judge stated:

“. . . we are satisfied that the award of $5000 in compensatory damages to the plaintiff Marcella Kink is supported by the evidence. It is not perverse and it is not excessive.”

The defendant claims that the question of punitive or exemplary damages should not have been submitted to the jury because defendant’s acts were not activated by malice or vindictiveness. However, malice or vindictiveness are not the sine qua non of punitive damages.

“Where the defendant’s wrongdoing has been intentional and deliberate, and has the character of outrage frequently associated with crime, all but a few courts have permitted the jury to award in the tort action ‘punitive’ or ‘exemplary’ damages, or what is sometimes called ‘smart money.’ ” Prosser, Law of Torts (2d ed.), p. 9, sec. 2.

For the award of punitive damages it is sufficient that there be a showing of wanton, wilful, or reckless disregard of the plaintiff’s rights. 6 C. J. S., Assault and Battery, p. 904, sec. 55 b (3). Punitive damages are particularly appropriate where the defendant sexually assaults his victim.

Defendant urges this court abandon the practice of permitting punitive damages. He argues that the plaintiff under the present doctrine inequitably receives compensation in excess of his actual damages, that the principle of deterrence is a function of the criminal, not civil, law, and in any event the award of exemplary damages is not in fact a deterrent.

We have recently reaffirmed our adherence to the rule of punitive damages and we see no reason to alter that position in this case, where it appears they are eminently justified.

Suffice it to say that whatever shortcomings the award of punitive damages may have, nevertheless, it must be remembered that it has the effect of bringing to punishment types of conduct that though oppressive and hurtful to the individual almost invariably go unpunished by the public prosecutor. Under the law of Wisconsin (sec. 59.47 (2), Stats.), a district attorney is not obliged to prosecute an assault and battery and may leave the injured party to prosecute through his own attorney. Certainly, the criminal law seldom reaches an assault and battery case. By allowing punitive damages the self-interest of the plaintiff will lead to prosecution of the claim, while the same self-interest of the plaintiff would lead him to refrain from instituting a criminal action at his own expense. Punitive damages serve not only the aggrieved victim of an assault, but also society, for by this device, a quasi-criminal action is prosecuted, when ordinarily it would not be prosecuted at all. The multiple-damage suits countenanced by our statutes recognize the principle that certain types of violations will not be prosecuted unless the injured parties’ judgment is fattened by the equivalent of punitive damages. These are civil actions (e.g., antitrust suits) where the public interest is served by the incentive given to private litigation. Certainly the consolidation of claims for compensation and punitive damages in one cause of action is in accord with modern principles of avoiding multiple trials.

This court takes the position that punitive damages do serve as a deterrent. As we said recently in Malco v. Midwest Aluminum Sales (1961), 14 Wis. (2d) 57, 66, 109 N. W. (2d) 516:

“Punitive damage is given on the basis of punishment . . . to deter others from like conduct.”

Referring to punitive damages, this court many years ago said :

“It tends to elevate the jury as a responsible instrument of government, discourages private reprisals, restrains the strong, influential, and unscrupulous, vindicates the right of the weak, and encourages recourse to and confidence in the courts of law by those wronged or oppressed by acts or practices not cognizable in or not sufficiently punished by the criminal law. The latter law must be uniform as to persons and acts, must fix a maximum and minimum punishment on this basis, and cannot always be adjusted to particular circumstances of atrocity which occasionally occur.” Luther v. Shaw (1914), 157 Wis. 234, 238, 147 N. W. 18.

Certainly the award of these damages should deter similar conduct on the part of this defendant.

Nor can we agree that the punitive damages awarded are so excessive as to shock the conscience of the court.

“It is usually held that the amount of exemplary damages lies within the discretion of the jury, subject to review by the court only in cases of such abuse as indicates the influence of passion or prejudice.” McCormick, Damages (hornbook series), p. 296, sec. 85.

The punitive damages herein are substantial. However, these damages are properly denominated “smart money,” and as we said in the Malco Case, supra:

“Punitive damage is given on the basis of punishment. . . . Punitive damage ought to serve its purpose.”

The evidence herein justified a judgment in an amount sufficient to punish the wrongdoer for his wanton conduct, to deter him from a repetition of it, and to deter others who may be similarly tempted. It would appear that this has been accomplished.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.

       Generally on this issue see 88 C. J. S., Trial, pp. 311-318, sec. 161; 68 A. L. R. (2d) 999; and 53 Am. Jur., Trial, p. 357, sec. 454.

       Defendant also claims the trial court erred in permitting Attorney J. Philip Elliott, an associate of counsel for plaintiffs, to testify in respect to the custody of the dress. We do not agree. Canon 19 (Canons of Professional & Judicial Ethics, American Bar Association), on which the objection is based, does not proscribe testimony “as to merely formal matters, such as attestation or custody of an instrument and the like.” We deem the testimony in this case to be within the exception permitted by the canon, i.e., a mere formal matter, the custody of the dress. In any event, the canon, if applicable, would not affect the admissibility or competency of the testimony. Estate of Weinert (1962), 18 Wis. (2d) 33, 36, 117 N. W. (2d) 685. It should also be noted that this was the extent of Mr. Elliott’s participation in the trial.

       Anno. 6 A. L. R. 985, 1018, Civil action for assault upon female person; 75 C. J. S., Rape, p. 583, sec. 82.

       Generally, see 66 C. J. S., New Trial, p. 413, sec. 169 (b).

         Fuchs v. Kupper (1963), 22 Wis. (2d) 107, 111, 125 N. W. (2d) 360.


source: Caselaw Access Project

author: Currie, C. J. Per Curiam

license: Public Domain

text:
    Withers, Plaintiff and Appellant, v. Tucker and others, Defendants: Electronic Expeditors, Inc., and another, Defendants and Respondents.

      June 2

    June 25, 1965.

      For the appellant the cause was submitted on the brief of Leonard V. Brady, attorney, and H. R. George of counsel, both of Milwaukee.
    For the respondents there was a brief by Wickham, Borgelt, Skogstad & Powell, attorneys, and Kurt H. Frauen and Thomas N. Klug of counsel, all of Milwaukee, and oral argument by Mr. Frauen.

       Motion for rehearing denied, without costs, on September 7, 1965.

   Currie, C. J.

Appellant-plaintiff’s brief attempts to raise two issues:

(1) Whether the trial court erred in not holding as a matter of law that Tucker was acting within the scope of his employment at the time the accident occurred.

(2) Whether the trial court erred in its instructions to the jury.

In addition to the points raised by plaintiff, the respondents-defendants have moved that double costs be imposed against plaintiff for alleged flagrant rule violations.

Whether Plaintiff Was Within Scope of His Employment.

Tucker was employed by Electronic as an outside salesman to call on retail stores in the city of Milwaukee. He would usually commence work between 8 and 8:30 a. m. by either reporting at Electronic’s place of business or making his first call on a retailer. His workday ended at about 5 p. m. He drove his own automobile and received no reimbursement for expenses in operating it. However, there was installed in the car a two-way radio owned by Electronic for demonstration purposes. Tucker’s compensation consisted of a weekly drawing advance of $100 to be credited against commissions.

On the day of the accident Electronic held a “grand opening” of its industrial department at its place of business and its retail salesmen, including Tucker, were required to be there to assist with it. Silverman, president of Electronic, testified that during the afternoon Tucker stated he was not feeling well and was going home. This is not disputed by Tucker. Tucker left and shortly thereafter the accident occurred. Silverman further testified that he went to the scene of the accident, that Tucker told him there that he had not been feeling well and was on his way home when the accident occurred and that Tucker made no statement then that he intended to deliver any merchandise that afternoon for Electronic.

Tucker testified that when he left Electronic that afternoon he took with him some needles to deliver to one customer and some tubes to deliver to another and that he was on the way to make these deliveries when the accident occurred. Electronic introduced into evidence its records with respect to these two customers, which records disclosed no transactions with them on the day of the accident and no withdrawal of merchandise from stock by Tucker to make such claimed deliveries.

Thus the evidence was in dispute with respect to the purpose of the trip Tucker was making at the time the accident happened. Under one view of the evidence the sole objective of the trip was to return home because he was not feeling well. Under the other version Tucker was on the way to make deliveries of merchandise for his employer. The jury by its answer “No” to the question of the verdict accepted the first-stated version, and there is ample evidence to sustain its finding. Therefore, there is no merit to appellant’s contention that Tucker at the time of the accident was acting within the scope of his employment as a matter of law.

Instructions to the Jury.

The learned trial court in instructing the jury with respect to the meaning of the phrase “within the scope of employment” gave a portion of Wis. J I — Civil, Part II, 4035, 4040, and 4045, with inconsequential minor variations such as substituting “employer and employee” for “master and servant.” The portion given consisted of the first three paragraphs of 4035, the first paragraph of 4040, and the first two paragraphs of 4045. It is appellant’s contention that the instructions given on this issue were incomplete and should at least have included Wis. J I — Civil, Part II, 4000 which defines agency.

Appellant is precluded from raising this issue on appeal for two reasons. First, he failed to request the giving of any additional instructions, and, second, he did not move for a new trial on the ground of error in instructions.

In Grinley v. Eau Galle (1956), 274 Wis. 177, 179, 79 N. W. (2d) 797, this court has clarified the position of appellant who failed to request instruction:

“The record does not disclose that such instructions were requested by the plaintiffs. Therefore, error cannot now be predicated on their omission. Where instructions are incomplete, and do not cover a point that ought to be covered, this court will not reverse unless a timely request for appropriate instructions has been made to the trial court. Madison Trust Co. v. Helleckson, 216 Wis. 443, 456, 257 N. W. 691; Jorgenson v. Hillestad, 250 Wis. 592, 599, 27 N. W. (2d) 709; Throm v. Koepke Sand & Gravel Co. 260 Wis. 479, 483, 51 N. W. (2d) 49.”

If an alleged error is one, such as an instruction claimed ;to be erroneous because incomplete, which the trial court could correct by granting a new trial, such error is not reviewable as a matter of right úriless appellant has first moved for a new trial bottomed on such error in the trial court. Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 518, 80 N. W. (2d) 380. Our review of the record herein does hot convince us that there is a probability that justice miscarried. Therefore, we decline to exercise our discretion to review the claimed error in instructions.

Motion to Impose Double Costs.

There is no question but that appellant’s appendix to his brief does not comply with our rules. Thirty-one pages of it are devoted to the testimony given at the trial. Most all of these 31 pages consist of quoting by question and answer testimony given at the trial instead of stating the same in narrative form as required by Rule 251.34 (5) (c), Stats. There are also some omissions of evidence favorable to respondents. For example, Silverman testified at page 107 of the record that Electronic’s records showed no sales made by Tucker on January 13, 1961. This is entirely omitted in the appendix. Again at page 123 of the record Silverman testified that according to Electronic’s records there was no transaction with Hi Fi Center (the customer to whom Tucker testified he was transporting needles at the time of the accident) of any kind between January 11, 1961, and February 1, 1961. This also is omitted from the appendix. Reference is also made in the appendix to Exhibit 8 without stating that the trial court excluded this exhibit.

In Henschel v. Rural Mut. Casualty Ins. Co. (1957), 2 Wis. (2d) 466, 86 N. W. (2d) 633, we declared:

“In all future matters if on the hearing of the appeal it appears that the brief and appendix do not substantially comply with the rules, this court will in its discretion deny appellant costs should he be the prevailing party, and allow respondent double costs should the respondent prevail.”

See also Seifert v. Milwaukee & Suburban Transport Corp. (1958), 4 Wis. (2d) 623, 627, 91 N. W. (2d) 236.

While the infraction in the instant case would doubtless warrant imposing double costs, we exercise our discretion to impose an additional $50 in costs against appellant-plaintiff as a penalty for this rule infraction.

Attorneys Executing Appeal Undertaking.

In examining the record in this case we find that the two counsel for appellant executed the $250 appeal undertaking. This is a clear violation of sec. 256.34, Stats., which provides:

“No attorney practicing in this state shall be taken as bail or security on any undertaking, bond or recognizance in any action or proceeding, civil or criminal, nor shall any practicing attorney become surety on any bond or recognizance for any sheriff, constable, clerk of court or justice of the peace.”

We assume that this violation occurred because counsel overlooked the existence of this statute. Therefore, we deem it advisable to point out the violation in this opinion so as to better alert the profession to the existence of this statute.

By the Court. — Judgment affirmed. Respondents are entitled to tax an additional $50 as costs.

The following memorandum was filed September 7, 1965.

Per Curiam

(on motion for rehearing). In his brief for rehearing the appellant correctly points out that this court overlooked an amended undertaking filed November 20, 1964, which was executed by a corporate surety. This undertaking supplanted the undertaking which was a violation of sec. 256.34, Stats. As the decision in this case did not turn upon the form of the undertaking and the other arguments on rehearing are insufficient to change the original opinion, the rehearing must be denied without costs.


author: Fairchild, J.

text:
    Continental Casualty Company and another, Appellants, v. Industrial Commission and another, Respondents.

      June 2

    June 25, 1965.

      For the appellants there was a brief by Kracht & Zauner of Milwaukee, and oral argument by Edward J. Kracht.

    For the respondent Industrial Commission the cause was argued by Gordon Samuelsen, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
    For the respondent Margaret Spinnler Hilty there was a brief by Levy & Levy of Cedarburg, and oral argument by Lowell K. Levy.

   Fairchild, J.

The challenged specific findings. The commission found that Hilty had been employed by Justro “for about three years.” Appellants correctly point out that Hilty’s employment by Justro had begun four months before his death. This error is immaterial.

The commission found that the dogs had been “taken over” from Ready and belonged to Justro. If appears, as asserted by appellants, that Ready retained ownership of the dogs until they were sold or given away. The evidence, however, would support a finding that Justro undertook the disposal of the dogs and that Barr was acting in the course of his employment in disposing of them.

Mr. Barr testified that approximately 100 to 125 cats and 60 to 65 dogs were on the premises on the date of transfer; that, “It was mutually agreed between . . . Mr. Sheridan representing Ready Foods and Mr. Segel representing Justro, that I, as the plant manager, would dispose of the cats and dogs.”

Mr. Segel testified that Justro had no use for the animals; that he told Barr to dispose of them; that it was done in the course of Barr’s employment; that Segel was not concerned with how the dogs were disposed of; and that Barr had complete control over the men in the plant. Although Mr. Segel evidently felt that after Barr removed the dogs from the Justro premises, Justro had no further concern with them, the commission was . not bound to accept his interpretation.

The commission found that the pistol belonged to Justro. Appellants object. Barr testified that the pistol had belonged to Ready Foods and had been kept for years in the file cabinet in Barr’s office. The file cabinets and “all other furniture” were mentioned in the bill of sale. Barr testified that there were other small tools and items which were actually transferred, though not specifically listed. Mr. Segel was unaware of the presence of the gun. The ownership of the gun would not be controlling in any event, but the commission could properly find that it was transferred to Justro.

The commission found that Hilty “was carrying out the directions of his superior.” Appellants argue that Barr made “requests” and that Hilty complied because of personal friendship.

It is true that the men had known each other for years and were friendly. Mr. Barr testified that he had “asked” Hilty to do the things he did on January 11th. He said that he customarily gave directions to his men by “asking;” that he considered that if he asked Hilty to do something about the dogs it became one of Hilty’s duties. Although Barr testified, over objection, that when Hilty helped with the dog they carried upstairs he did it “as a personal favor,” the commission was not bound by that testimony to find that Hilty understood he was free to give or withhold the help. The evidence sustains the finding that Hilty was carrying out the directions of a superior.

The alleged deviation. As already indicated, the commission could and did properly find that the trip to Barr’s kennel to shoot the two dogs and the return therefrom were for the benefit of Justro and within the scope of the men’s employment. In transporting and handling the third dog, however, the men were serving a personal interest of Barr. The fatal accident occurred while the men were involved in the latter task.

This raises the question of the extent to which an employee is protected by the Workmen’s Compensation Act while performing tasks outside the course of the employer’s business, but at the direction of his superior in the employment. As pointed out by appellants there can be no liability unless at the time of the injury the employee is performing services growing out of and incidental to his employment and unless the accident arises out of the employment.

Professor Larson states the rule as follows:

“When any person in authority directs an employee to run some private errand or do some work outside his normal duties for the private benefit of the employer or superior, an injury in the course of that work is compensable.
“The technical reason for these holdings is simply that, whatever the normal course of employment may be, the employer or his supervisory staff have it within their power to enlarge that course by assigning tasks outside the usual area. If they do not assign these tasks on the strength of the employer-employee relation on which compensability depends, then what is the source of authority by which the task is assigned ?
“The practical reason for the rule is that any other view places the employee in an intolerable dilemma: if he complies with the order, he forfeits compensation protection; if he does not comply, he gets fired.”

This court has not had occasion to deal with the exact problem. In Metzger v. Industrial Comm. the employer was a painting contractor and hired employees to work in that business. The employer directed two of his employees to haul furniture to the employer’s summer cottage. One was killed on the trip. We held that the fact that the task being performed was not customarily required in the employer’s business did not suspend the status of the deceased as an employee in the usual course of business.

In Olson Rug Co. v. Industrial Comm. several employees were working on a crew, soliciting orders, away from home. One employee, Allen, became ill. Instead of remaining in his rooming house, he asked the foreman, Carlson, to drive him to a city where he had relatives. Carlson did so after ordinary working hours and was injured while returning. This court said:

“An injury received by one who is merely performing a friendly act or courtesy for a coemployee is not compensable unless, at the time of performing such act, the employer owes to the employee a duty to perform the act by virtue of the contract of employment or the law. The service performed by the applicant was outside of his hours of employment, outside of what properly may be called his place of employment and in a place not provided or furnished by the employer or over which it had any control.”

In the Olson Rug Company Case it was the subordinate who requested the superior to render a personal service, while in the instant case the superior made the request of the subordinate.

The broad rule as stated by Professor Larson commends itself. It is not necessary in this case, however, to decide whether to adopt it completely. Perhaps there may be circumstances under which directions given by a superior would be so clearly unauthorized that services rendered in response thereto could not be said to grow out of or be incidental to the employment. In the case before us, however, the services in Barr’s personal interest were rendered as an incident of the trip to and from the kennel; they were not only rendered at the direction of the superior, but were performed on the premises where Hilty’s duties were ordinarily performed, and during his ordinary working hours. Under these circumstances it was proper to find that Hilty was performing services growing out of and incidental to his employment and that the accident arose out of the employment.

It was argued that under the positional-risk doctrine, Hilty’s death was compensable because his presence at the point where he was killed was a result of his employment. This may also be appropriate reasoning, but we do not rest our decision on it.

By the Court. — Judgment affirmed.

Gordon, J., dissents.

       Sec. 102.03 (1) (c) 1 and (e), Stats.

       1 Larson, Law of Workmen’s Compensation, pp. 421-424, sec. 27.40.

       (1931), 205 Wis. 339, 235 N. W. 802.

       (1934), 215 Wis. 344, 347, 254 N. W. 519.

       See Cutler-Hammer, Inc., v. Industrial Comm. (1958), 5 Wis. (2d) 247, 254, 92 N. W. (2d) 824.


author: Wilkie, J.

text:
    Estate of Evans : Evans (Fred M.) and another, Appellants, v. Evans (Thomas) and others, Respondents.

      June 3

    June 25, 1965.

      For the appellants there was a brief by Krembs & Ambelang of Sparta, and oral argument by Charles D. Ambelang.

    For the respondents there was a brief by Steele, Smyth, Klos & Flynn, and oral argument by Frederick Schneider, all of La Crosse.
   Wilkie, J.

One question is presented on this appeal. It is whether the trial court erred in authorizing the conservator to place the treasury notes owned by Evans in joint tenancy with others. This is purely a question of law.

In essence, the answer to this question turns on whether the law governing guardianships also controls conservator-ships. In effect, the trial court ruled that it does, at least insofar as the authority of a conservator to create a joint tenancy in certain assets of the conservatee is concerned.

In 1955 the legislature adopted the concept of “conservator-ship” providing for the appointment of a conservator on the voluntary application to the county court of “[a]ny adult resident who believes that he is unable properly to manage his property or income . ...” Once appointed, a conservator has “all the powers and duties of a guardian of the estate of an incompetent person.”

Sec. 319.19, Stats., which lists the powers and duties of a guardian, contains no express provision which permits a guardian to make a gift, either outright or in joint tenancy, on behalf of the ward as was done in the present case. The primary function of the guardian is to preserve the ward’s estate and assets are to be expended or disposed of only to meet the fundamental needs of the ward or his dependents. In at least two Wisconsin cases this court has ruled that a guardian, with county court approval, could liquidate assets of a ward that were already in joint tenancy provided the ward’s needs required it and the guardian was acting in the best interests of the ward. Therefore, the trial court was correct in concluding that a guardian, even with court approval, could not create a joint tenancy in certain assets of the ward when such transfer was not for the care, maintenance, or education of the ward.

It does not follow, however, that the action taken here by the conservator (with court approval) in creating a joint tenancy in certain government bonds of the conservatee was a nullity. The basic purpose of the conservatorship statute was “to eliminate the stigma of incompetency for persons who are forgetful because of age, and yet afford them the protection of the court if they desired it.” The conservatee is not adjudged incompetent; indeed, in the instant case there was no assertion that Evan Evans was incompetent as part of the proceeding for establishing his conservatorship, and no record was made on his competency. The statute states, “Appointment of a conservator shall not be evidence of the competency or incompetency of the person whose estate is being administered.”

Thus, a conservatee is not considered completely incapable of looking after his own property. A ward under guardianship is either a minor, incompetent, or a spendthrift. He is incapable of looking after his own property and it fits the statutory scheme for control of guardianships that the ward should not be able to control what should be done with his property. But in a conservatorship, where there is no adjudication that the applicant is incompetent, it makes sense to allow the conservatee the freedom to direct a gift of his property where both the conservator and the court, as here, entered no objection.

Respondents contend that Evans could have accomplished the transfer of property by terminating the conservatorship, then making the transfer, and finally re-establishing the con-servatorship. This certainly would be a lot of extra work and waste motion to achieve basically what Evans desired here. Respondents also contend that if Evans did not want to end the conservatorship he could have executed a will leaving the notes outright to his niece and nephew. But if Evans was not incompetent, it would not be reasonable to prevent him from making the transfer inter vivos, not testamentary.

It is our conclusion that sec. 319.31 (3), Stats., does not prevent the conservator with its and the court’s approval from making a transfer such as the creation of the joint tenancies sought by the conservatee, Evans, in the instant case. The restricted construction of sec. 319.31 (3) proposed by the respondents and adopted by the trial court would defy the very purpose of the conservatorship statute. A statute should not be construed so as to work absurd or unreasonable results.

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

Beilfuss, J., took no part.

       Ch. 416, Laws of 1955.

       Sec. 319.31 (1), Stats.

       Sec. 319.31 (3), Stats.

         Boehmer v. Boehmer (1953), 264 Wis. 15, 58 N. W. (2d) 411; Will of Barnes (1958), 4 Wis. (2d) 22, 89 N. W. (2d) 807.

       Kroncke, A Decade of Probate Law, 1961 Wisconsin Law Review, 82, 118.

       Sec. 319.31 (6), Stats.

       Sec. 319.01, Stats.

       See secs. 319.31 (4) and (5), Stats.

         Estate of Zink (1962), 15 Wis. (2d) 527, 113 N. W. (2d) 420.

        Isaksen v. Chesapeake Instrument Corp. (1963), 19 Wis. (2d) 282, 120 N. W. (2d) 151; Worachek v. Stephenson Town School Dist. (1955), 270 Wis. 116, 70 N. W. (2d) 657.


author: Currie, C. J.

text:
    City of Plymouth, Appellant, v. Elsner, Respondent.

      June 3

    June 25, 1965.

      For the appellant there were briefs by P. G. Anderson, city attorney, attorney, and Honeck, Mantyh & Arndt of Milwaukee, special counsel, and oral argument by Stewart G. Honeck.

      For the respondent there was a brief by Walter & Hopp and Alexander Hopp, all of Sheboygan, and oral argument by Alexander Hopp.

   Currie, C. J.

The brief of appellant city states the question involved on this appeal to be:

“Is a levy of assessments by the City of Plymouth upon residential and commercial properties at the rate of fifty (50) cents and one (1) dollar per month, respectively, for the purpose of financing the purchase, lease and maintenance of industrial sites and for which sec. 66.52 Stats, authorizes the City to contract indebtedness outside of its constitutional debt limitation unconstitutional as not conforming to the rule of uniform taxation prescribed by sec. 1, art. VIII of the Wisconsin constitution?”

This phrasing of the issue presupposes that the tax imposed by the ordinance is a property tax and not an excise tax. We entertain some doubt as to whether such tax may not be properly classified as an excise tax on the theory that it is levied on a particular transaction, i.e., the payment of bills of the municipal electric utility for the purpose of raising city revenue.

We find it unnecessary to determine whether the tax imposed by the ordinance is an excise tax or a general property tax. If it is an excise tax, it is invalid for the reason that the legislature has not conferred upon Wisconsin cities the power to levy excise taxes of the type here attempted to be levied. If it is a property tax, it violates the uniformity clause contained in sec. 1, art. VIII, Wisconsin constitution, which provides: “The rule of taxation shall be uniform. . . .”

Power of Cities to Levy Excise Tax to be Added to Public Utility Charges.

The constitutional authority of cities only extends to local affairs and does not cover matters of statewide concern. Van Gilder v. Madison (1936), 222 Wis. 58, 267 N. W. 25, 268 N. W. 108; Logan v. Two Rivers (1936), 222 Wis. 89, 267 N. W. 36. For a discussion of the test of statewide concern as opposed to local affairs, see opinion on rehearing, Muench v. Public Service Comm. (1952), 261 Wis. 492, 515c-515g, 53 N. W. (2d) 514, 55 N. W. (2d) 40. This court declared in State ex rel. Thomson v. Giessel (1953), 265 Wis. 207, 213, 60 N. W. (2d) 763, “The legislature has plenary power over the whole subject of taxation.” Such plenary power must be based on presupposition of statewide concern.

Appellant city has cited no constitutional or statutory provision which authorizes a city to levy, an excise tax to be added to the amounts payable for charges imposed for a public-utility service such as electricity. 16 McQuillin, Mun. Corp. (3d ed.), pp. 19-21, sec. 44.05, states:

“And since the authority to levy taxes is an extraordinary one, it should never be left to implication unless it be a necessary implication. The grant relied upon should be evidence and unmistakable, and, if there is a doubt as to the existence of the power, such doubt will be resolved against the municipality and in favor of the taxpayer.”

Wisconsin recognizes the general rule of construction that a tax cannot be imposed without clear and express language for that purpose, and where ambiguity and doubt exist, it must be resolved in favor of the person upon whom it is sought to impose the tax. Wadhams Oil Co. v. State (1933), 210 Wis. 448, 459, 245 N. W. 646, 246 N. W. 687.

The home-rule amendment found in sec. 3, art. XI of the Wisconsin constitution, is only applicable to matters of local affairs of cities and villages and would not encompass the levying of an excise tax to be added to public utility bills.

We have no hesitancy in holding that appellant city was without any constitutional or statutory authority to levy the instant tax if it be deemed an excise tax.

Uniformity Requirement if Tax is Classified As a Property Tax.

In Barnes v. West Allis (1957), 275 Wis. 31, 37, 81 N. W. (2d) 75, this court declared:

“Under sec. 1, art. VIII, constitution of Wisconsin, where a property tax is levied, there can be no classification which interferes with substantial uniformity of rate based upon value.”

Other cases which have interpreted the uniformity clause, as applied to a property tax, to require practical equality based on value are: State ex rel. Baker Mfg. Co. v. Evansville (1952), 261 Wis. 599, 609, 53 N. W. (2d) 795; Chicago & N. W. R. Co. v. State (1906), 128 Wis. 553, 608, 108 N. W. 557; and Knowlton v. Rock County (1859), 9 Wis. 378, 449 (*410, *420).

The tax imposed by the instant ordinance violates the constitutional requirement of uniformity because all residence properties having electrical service meters are taxed 50 cents per month regardless of value. A residential property having an assessed value of $5,000 is required to pay the same tax as one having an assessed value of $20,000. This same disregard of value occurs with respect to the tax imposed on commercial properties having electrical service meters.

The instant tax also violates the uniformity requirement by taxing commercial properties at a higher rate than residential properties. That this is so is clear from this statement by Mr. Justice Marshall in Chicago & N. W. R. Co. v. State, supra, at pages 603, 604:

“For the direct method of taxing property, taxation on property so called, as to the rule of uniformity, there can be but one constitutional class. All not included therein must be absolutely exempt from such taxation. All within such class must be taxed on a basis of equality so far as practicable.”

See also Knowlton v. Rock County, supra.

The appellant city does not challenge the correctness of the determination of the trial court that the instant tax violates the uniformity requirement of sec. 1, art. VIII, Wisconsin constitution, if such tax is held to be a direct property tax. Rather it seeks to avoid this result by contending that this tax is not a general property tax but a special assessment. If it is a special assessment, the uniformity requirement is inapplicable. Williams v. Madison (1962), 15 Wis. (2d) 430, 443, 113 N. W. (2d) 395; Milwaukee v. Taylor (1938), 229 Wis. 338, 340, 282 N. W. 448; Weeks v. Milwaukee (1860), 10 Wis. 186, 204 (*242, *261). Thus the crucial question is whether the tax imposed by the ordinance is a special assessment.

A special assessment differs from a general tax in that it is imposed to pay for an improvement which benefits specific property within the political division imposing it. De Pere v. Public Service Comm. (1954), 266 Wis. 319, 327, 63 N. W. (2d) 764. See also Yates v. Milwaukee (1896), 92 Wis. 352, 356, 357, 66 N. W. 248; Hale v. Kenosha (1872), 29 Wis. 599, 605; 14 McQuillin, Mun. Corp. (3d ed.), pp. 14, 15, sec. 38.01. The instant tax was levied to provide funds with which to acquire industrial sites to be leased or sold to industries. While industrial sites may constitute public improvements, they do not benefit specific property in the city to a tangible extent which permits the levying of a special assessment measured in terms of the benefit conferred. Such sites confer no more tangible benefits to specific property than would a school or municipal swimming pool.

In Duncan Development Corp. v. Crestview Sanitary Dist. (1964), 22 Wis. (2d) 258, 264, 265, 125 N. W. (2d) 617, it was held that an improvement to the water system of a sanitary district which benefited all the property of the district, but to varying degrees, could be financed through special assessments levied on all the property of the district. However, the benefits conferred by such an improvement to all property in the district were tangible enough to support a special assessment.

In view of the foregoing we conclude that, if the tax imposed by the instant ordinance is a property tax, it is a general tax and not a special assessment.

By the Court. — Judgment affirmed.

       For various definitions of excise taxes see Abney v. Campbell (5th Cir. 1953), 206 Fed. (2d) 836, 840; State ex rel. Missouri Portland Cement Co. v. Smith (1936), 338 Mo. 409, 413, 90 S. W. (2d) 405; De Land v. Florida Public Service Co. (1935), 119 Fla. 804, 813, 161 So. 735; Flynn, Welch & Yates v. State Tax Comm. (1934), 38 N. M. 131, 136, 28 Pac. (2d) 889; 84 C. J. S., Taxation, sec. 121, p. 245; 30 Am. Jur., Internal Revenue, sec. 3, p. 112; 1 Cooley, Taxation (4th ed.), sec. 46, pp. 131-135.


author: Gordon, J. Heffernan, J.

text:
    State, Respondent, v. Givens, Appellant. Same, Respondent, v. Weaver, Appellant. Same, Respondent, v. Taylor, Appellant. Same, Respondent, v. Johnson, Appellant. Same, Respondent, v. Berndt, Appellant.

      June 4

    June 25, 1965.

      Heffernan, J., dissents.

      For the appellants there was a brief by Barbee & Jacobson of Milwaukee, and oral argument by Thomas M. Jacobson and Lloyd A. Barbee.

    For the respondent the cause was argued by Aladin A. DeBrosso, deputy district attorney of Milwaukee county, with whom on the brief were Bronson C. La Follette, attorney general, and Hugh R. O’Connell, district attorney.
   Gordon, J.

Vagueness of Statute.

The appellants argue that the disorderly conduct statute is too vague to be enforced. Sec. 947.01 (1), Stats., quoted above, sets forth six specific types of conduct which are proscribed; this covers conduct that is “violent, abusive, indecent, profane, boisterous, [or] unreasonably loud thereafter the statute contains a so-called “catchall” clause which prohibits “otherwise disorderly conduct” which tends to “provoke a disturbance.”

It has often been held that a criminal statute must be definite enough to inform those who are subject to it as to what acts will render them liable to its penalties. Lanzetta v. New Jersey (1939), 306 U. S. 451, 453, 59 Sup. Ct. 618, 83 L. Ed. 888; Connally v. General Construction Co. (1926), 269 U. S. 385, 391, 46 Sup. Ct. 126, 70 L. Ed. 322. See Unconstitutional Uncertainty—An Appraisal, 40 Cornell Law Quarterly (1955), 195, 196.

We believe that the disorderly conduct statute in the cases at bar is reasonably explicit; the six types of affirmative conduct which are expressly listed in the statute all tend to disrupt good order and to provoke a disturbance. When the statute, after the specific enumerations, in a “catchall” clause proscribes “otherwise disorderly conduct” which tends to “provoke a disturbance,” this must mean conduct of a type not previously enumerated but similar thereto in having a tendency to disrupt good order and to provoke a disturbance. Such interpretation rests upon the rule of ejusdem generis. See State ex rel. Dinneen v. Larson (1939), 231 Wis. 207, 216, 284 N. W. 21, 286 N. W. 41; Gallagher v. McKeague (1905), 125 Wis. 116, 121, 103 N. W. 233. Upon this approach, the instant statute sufficiently identifies the type of behavior which the legislature intended to be contrary to law. The definition, of disorderly conduct contained in Teske v. State (1950), 256 Wis. 440, 444, 41 N. W. (2d) 642, is as follows:

“ While it is impossible to state with accuracy just what may be considered in law as amounting to disorderly conduct, the term is usually held to embrace all such acts and conduct as are of a nature to corrupt the public morals or to outrage the sense of public decency, whether committed by words or acts.’ ”

This view is substantiated by the report of the legislative council’s judiciary committee, published in February, 1953; this report was submitted to the governor and to the legislature when consideration was being given to the enactment of what is now sec. 947.01 (1), Stats. With reference to the disorderly conduct statute (then sec. 347.01), the committee made the following comment:

“The crime of disorderly conduct is based upon the principle that in an organized society one should so conduct himself as not to unreasonably offend the senses or sensibilities of others in the community. Subsection (1) embodies this principle in a form which is on the one hand sufficiently flexible to permit law enforcement officers to keep- order in the community and on the other hand sufficiently definite to prevent abuses in administration. The words ‘violent, abusive, indecent, profane, boisterous, unreasonably loud . . . conduct’ give certainty to the crime while at the same time being broad in scope. On the other hand, .they are not broad enough to take care of every situation generally considered to be disorderly .... This is not intended to imply that all conduct which tends to annoy another is disorderly conduct. Only such conduct as unreasonably offends the sense of decency or propriety of the community is included. This is implicit in the phrase ‘tends to disturb or annoy others.’ The question is not whether a particular person was disturbed or annoyed but whether the conduct was of a kind which tends to disturb or annoy others. The section does not protect the hypersensitive from conduct which generally is tolerated by the community at large.
“The other phase of disorderly conduct under subsection (1) is conduct likely to cause or provoke a disturbance of public order, and what type of conduct is likely to do this is largely a question of fact in each case.” (Vol. V, Report on the Criminal Code, page 208.)

The fact that a statute fails to itemize with particularity every possible kind of conduct which would violate such statute does not make it constitutionally vague. Jordan v. De George (1951), 341 U. S. 223, 71 Sup. Ct. 703, 95 L. Ed. 886; United States v. Ragen (1942), 314 U. S. 513, 62 Sup. Ct. 374, 86 L. Ed. 383; Levy Leasing Co. v. Siegel (1922), 258 U. S. 242, 42 Sup. Ct. 289, 66 L. Ed. 595; Nash v. United States (1913), 229 U. S. 373, 33 Sup. Ct. 780, 57 L. Ed. 1232; St. Petersburg v. Calbeck (Fla. 1959), 114 So. (2d) 316; State ex rel. Green v. Capehart (1939), 138 Fla. 492, 189 So. 708; St. Paul v. Morris (1960), 258 Minn. 467, 104 N. W. (2d) 902; State v. Reynolds (1954), 243 Minn. 196, 66 N. W. (2d) 886. But cf. People v. Diaz (1958), 4 N. Y. (2d) 469, 151 N. E. (2d) 871, 176 N. Y. Supp. (2d) 313; Griffin v. Smith (1937), 184 Ga. 871, 193 S. E. 777.

In United States v. Wurzbach (1930), 280 U. S. 396, 399, 50 Sup. Ct. 167, 74 L. Ed. 508, Mr. Justice Holmes stated:

“Whenever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so it is familiar to the criminal law to make him take the risk.”

Proof of Criminal Acts.

As their primary contention, the appellants claim that the record fails to establish facts which bring them within the disorderly conduct statute. The appellants point to their quiet, passive, and nonviolent demeanor and contend that the holding of this case should be governed by recent United States supreme court cases in which breach-of-peace convictions were reversed because the defendants were publicly expressing their views under' constitutional protections. Cox v. Louisiana (1965), 379 U. S. 536, 85 Sup. Ct. 453, 13 L. Ed. (2d) 471; Fields v. South Carolina (1963), 375 U. S. 44, 84 Sup. Ct. 149, 11 L. Ed. (2d) 107; Henry v. Rock Hill (1963), 375 U. S. 6, 84 Sup. Ct. 44, 11 L. Ed. (2d) 38; Edwards v. South Carolina (1963), 372 U. S. 229, 83 Sup. Ct. 680, 9 L. Ed. (2d) 697.

Can it be said that the acts in the case at bar were protected because the defendants were validly exercising their constitutional rights of freedom of speech, freedom of assembly, and freedom to petition for the redress of grievances? The answer is “No,” and the reason is that such constitutional protections are not absolute. As the United States supreme court recently said in Cox v. Louisiana, supra, at page 554:

“The constitutional guarantee of liberty implies the existence of an organized society maintaining public order, without which liberty itself would be lost in the excesses of anarchy. The control of travel on the streets is a clear example of governmental responsibility to insure this necessary order. A restriction in that relation, designed to promote the public convenience in the interest of all, and not susceptible to abuses of discriminatory application, cannot be disregarded by the attempted exercise of some civil right which, in other circumstances, would be entitled to protection. One would not be justified in ignoring the familiar red light because this was thought to be a means of social protest. Nor could one, contrary to traffic regulations, insist upon a street meeting in the middle of Times Square at the rush hour as a form of freedom of speech or assembly. Governmental authorities have the duty and responsibility to keep their streets open and available for movement. A group of demonstrators could not insist upon the right to cordon off a street, or entrance to a public or private building, and allow no one to pass who did not agree to listen to their exhortations.”

A similar point of view was very recently expressed in Drews v. Maryland (1965), 381 U. S. 421, 85 Sup. Ct. 1576, 14 L. Ed. (2d) 693, in which a dissenting justice (Mr. Chief Justice Warren, joined by Mr. Justice Douglas) stated :

“In dissenting, I of course do not suggest that a civil rights demonstrator, or anybody else, has a right to block traffic, or bar access to a man’s home or place of business.”

The Connecticut court faced a somewhat' ’comparable problem in State v. Petty (1962), 24 Conn. Supp. 337, 190 Atl. (2d) 502. That case did not relate to the quarters of a public official, as do the cases at bar, but instead involved the waiting room of a real-estate firm. The Connecticut court noted that the defendants who had staged a sit-in demonstration in the waiting room were neither violent nor boisterous, but nevertheless the court concluded that the defendants created an offensive condition, and the demonstrators were adjudged guilty of disorderly conduct.

The record in the instant case establishes that three of the defendants (Mr. Givens, Mrs. Weaver, and Mrs. Johnson) entered the waiting room of Mr. Grobschmidt’s office • and sat on the floor in that room, which was described as “quite crowded.” The record does not disclose the exact dimensions of the area in question. A photograph which was received into evidence is reproduced with this opinion. It suggests the confined quarters in which this sit-in was conducted. Although Mr. Grobschmidt testified that the presence of the protesters on the floor of his waiting room interfered with the usual activities of his office, we believe that the photograph establishes such fact with even greater force.

The right to demonstrate (even peaceably) m pursuance of our constitutional rights of freedom of speech, freedom of assembly, and freedom to petition for redress of grievances might be appropriate in one place and not in another. Picketing on a broad sidewalk is not comparable to a sit-in in the small confines of an office; a demonstration in an expansive public park is not comparable to a sit-in in the narrow corridor leading to a public official’s office.

Perhaps the facts just referred to sufficiently demonstrate that the sit-in in the instant cases met the requirements of the statute as to being disruptive of good order and tending to cause or provoke a disturbance. The majority of the members of the court, however, rely in affirming the judgments upon the further fact, in addition, that each defendant deliberately and knowingly violated commands of those in charge of the area.

Those in authority over public buildings or particular areas therein must be accorded discretion to regulate conduct therein. Such regulation must be reasonably designed to preserve good order and facilitate the public uses for which the building was intended. Such regulation must not, of course, deprive anyone of his constitutional or other legal rights. Within these limits, new and temporary commands or requirements, such as limiting access to rooms ordinarily open, requiring people to stand so as to keep passageways open, and the like, may be appropriate to meet a particular set of circumstances as it emerges.

In the instant cases, the limitation of access to room 214AA on the morning in question, and the requirement that people in the hallway keep moving or stand against the wall were not shown to be unreasonable. Such limitation and requirement did not violate the defendants’ rights peaceably to assemble nor to petition for redress of grievances. There was evidence sufficient so that a jury could find beyond a reasonable doubt that the requirements violated by each defendant were made known to him, each was given a reasonable opportunity to comply, and each persisted in violation.

In Feiner v. New York (1951), 340 U. S. 315, 320, 71 Sup. Ct. 303, 95 L. Ed. 295, the supreme court of the United States upheld a conviction for breach of the peace and considered as one of the important facts, among all the other circumstances, the refusal of the defendant, who was making a speech, to obey police requests to stop speaking.

When an individual seeks to pursue his constitutionally protected rights, criminality is not to be assessed against him on a supersensitive standard. Thus, one who wishes to engage in his right to speak freely or to assemble with others for the purpose of protesting should not be prevented from pursuing such right merely because some hypercritical individual of delicate sensibilities is annoyed or discommoded. However, substantial intrusions which offend the normal sensibilities of average persons or which constitute significantly abusive or disturbing demeanor in the eyes of reasonable persons are cognizable under Wisconsin statute sec. 947.01 (1). In the cases at bar, the defendants’ acts were deemed disorderly by two juries, and convictions were entered by two trial judges; this court also regards the defendants’ acts as being abusive and tending to provoke a disturbance to the degree of being disorderly. We are satisfied from the record that guilt has been assessed on substantial grounds and not upon hypercritical or supersensitive grounds.

Prior Restraint.

The appellants contend that their arrests were the result of pre-existing orders from the sheriff to his deputies; they also point out that the deputies had restricted their admission to a public waiting room. Did this constitute a prior restraint on the appellants’ rights to freedom of speech and freedom of assembly? We think not.

We find no similarity here to those cases in which an individual is required to obtain a permit before being allowed to express his views in a public place. See Kunz v. New York (1951), 340 U. S. 290, 71 Sup. Ct. 312, 95 L. Ed. 280; Niemotko v. Maryland (1951), 340 U. S. 268, 71 Sup. Ct. 325, 95 L. Ed. 267; Saia v. New York (1948), 334 U. S. 558, 68 Sup. Ct. 1148, 92 L. Ed. 1574. The arrests were not made until after the defendants had engaged in the physical sit-in which has already been described.

The officers were prepared, but we find no basis for criticism in this fact. The demonstrations of the previous days, together with the prospective arrival of numerous protesters in a confined area, entirely warranted the practice of having deputies present and alerted. In our opinion, there was no prior restraint of any of the petitioners’ constitutionally protected rights.

The Appellants’ Appendix.

The appendix prepared by the appellants contains over 20 pages of questions and answers. As also noted in Withers v. Tucker, ante, p. 82, 135 N. W. (2d) 776, decided at this month’s assignment, this practice contravenes sec. 251.34 (5) (c), Stats., which directs that “the abridgment of the testimony shall be in narrative form. . . .”

By the Court. — Judgments affirmed.

Heffernan, J.

{dissenting). I respectfully dissent from the conclusions of the majority. I agree with the able analysis of the disorderly conduct statute, but I believe that the rationale of that analysis leads to the opposite conclusion. The majority concluded that the statute is saved from the attack of vagueness by the application of the doctrine of ejusdem generis. Hence, in order to convict the defendants under the catchall phrase of “otherwise disorderly conduct,” the conduct complained about must be similar in nature to that which the body of the statute typifies as “violent, abusive, indecent, profane, boisterous, unreasonably loud.” Certainly, none of these adjectives describe the conduct of the defendants. The record shows that at no time was there resort to violence or to any improper language. Conversations between defendants and the officers were restrained and courteous. The record shows that the defendants sat on the floor of the waiting room of the chairman of the county board. It does not appear that they were there for any great length of time. The duration of this conduct is not in evidence, but a perusal of the record indicates that the defendants were in this posture at the most for a very few minutes, perhaps for only a few seconds.

There is no evidence that the work of the county board chairman was impaired in any way, nor even that ingress and egress to the office was in any manner seriously impeded.

I do not doubt that a sit-in might be conducted in a manner that would constitute disorderly conduct, but absent evidence of acts of violence and disorder as enumerated in this statute, I believe this conclusion could be reached only if the access to buildings, offices, or streets was substantially impeded or if the sit-in continued for such a length of time or under such circumstances that it would interfere with the use of the premises by the public and public officials.

In Teske v. State (1950), 256 Wis. 440, 444, 41 N. W. (2d) 642, we quoted with approval the rule that “disorderly conduct” embraces “all such acts and conduct as are of a nature to corrupt the public morals or to outrage the sense of public decency, whether committed by words or acts.” I deem the conduct of the defendants herein neither immoral nor indecent, and, hence, not within the prohibition of the statute.

The majority opinion intimates that in some manner the conduct was abusive. None of the commonly accepted synonyms or definitions for “abusive” would appear to make this typification of the conduct appropriate. 1 Words and Phrases (perm, ed.), p. 364, cites, among others, the following definitions of the word “abusive”: “Tending to deceive; . . . prone to ill treat by coarse, insulting words” or “using ill treatment, injurious, improper, hurtful, offensive, reproachful.” “Abusive” is generally equated with “indecent” or “obscene.” Abusive language is generally thought to be that which includes vituperative, scurrilous, insulting, gross, vile, impure, or obscene language. Certainly, the conduct of the defendants or their words cannot be described by these epithets.

I believe that the majority has erred in attempting to proscribe conduct that by no reasonable interpretation can be said to be within the contemplation of the disorderly conduct statute.

I would reverse.


author: Hallows, J.

text:
    State, Respondent, v. Schmear, Appellant.

      June 4

    June 25, 1965.

      For the appellant there was a brief and oral argument by John B. Grogan of Fort Atkinson.
    For the respondent the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and William A. Plats, assistant attorney general.
   Hallows, J.

The first contention of the defendant asserts there is insufficient credible evidence to sustain the verdict of guilty especially in respect to the resistance of the complaining witness. On appeal the test of the sufficiency of the evidence is whether there is sufficient credible evidence to meet the burden of proof to convince a jury beyond a reasonable doubt of the guilt of the defendant. State v. Stevens (1965), 26 Wis. (2d) 451, 132 N. W. (2d) 502; State v. Johnson (1960), 11 Wis. (2d) 130, 104 N. W. (2d) 379; State v. John (1960), 11 Wis. (2d) 1, 103 N. W. (2d) 304. The crime of rape is defined in sec. 944.01 (1), Stats., as intercourse with a woman other than one’s wife by force and against her will, which by sub. (2) of the section means “her utmost resistance is overcome or prevented by physical violence or that her will to resist is overcome by threats of imminent physical violence likely to cause great bodily harm.” The gist of the complaint is not that the victim’s will was overcome by threats but that her utmost resistance was overcome.

The statutory definition of “by force and against her will” is a codification of the prior existing law. The statement in the older cases of the rule of the sufficiency of the victim’s resistance in vigorous terms of counterforce and utmost resistance was justified on the ground of the great difficulty of a defendant in defending himself from such a charge because there usually were no witnesses and the only possible defense was a direct denial or the willingness of the woman. State v. Hoffman (1938), 228 Wis. 235, 280 N. W. 357; Brown v. State (1906), 127 Wis. 193, 106 N. W. 536; Purpero v. State (1926), 190 Wis. 363, 208 N. W. 475. However, the extreme statement or the last-ditch effort of “utmost resistance” appearing in Brown v. State relied upon by the defendant has been qualified and softened by McLain v. State (1914), 159 Wis. 204, 206, 149 N. W. 771, wherein it is stated that utmost resistance is a relative term to be considered in reference to the physical and mental character of the victim. While the law requires the utmost resistance as evidence of the woman’s will, the law does not require the useless or the impossible.

The facts do not present a strong case for conviction and some are sordid and repulsive. No good purpose is served by detailing them but we believe they are sufficient to support the conviction. The defendant contends and testified he had no physical intercourse with the complaining witness but admits all the preliminaries including the removal of her blue jeans and panties. In his brief the defendant argues cooperation and consent. The complaining witness’ testimony is to the effect she attempted to repulse the defendant when he made physical advances to her while the car was stopped on the country road. She slid off the seat onto the car floor and attempted to escape by opening the door at her back and she fell out of the car. The defendant fell on top of her. She cried and became hysterical and when her hands were free she tried to hit the defendant and push him away. The defendant put his hand over her mouth to prevent her from screaming. There was evidence of blood and semen both on the complaining witness’ clothing and on the defendant’s clothing. Considering such evidence in the light of the age, height, and weight of the parties and the circumstance of the defendant’s driving the complaining witness toward Madison, a jury could find beyond a reasonable doubt that further resistance was useless and futile and the act of rape was committed.

The defendant points out evidence from which a jury could infer consent such as the complaining witness’ clothing was not torn and she received no scratches or bruises. This is negative testimony and far from' conclusive of consent. It is also argued the complaining witness consented because she was so unconcerned after the alleged attack as to look for a lost earring in the grass. The doctrine of utmost resistance prescribes no course of conduct after penetration and we fail to see how the searching for an earring and in the process memorizing the license on the car after the completion of the attack are any evidence of consent. Her testimony of being upset, agitated, and hysterical, however, is supported by the attendant of the filling station where she ran as soon as she got out of the car on the outskirts of Madison approximately 25-30 miles from the place of the attack. She immediately complained to the police that she had been raped.

It is intimated by the defendant the complaining witness was angry with him because he gave her only a dollar in the car. The dollar was apparently given by the defendant for cab fare as he was not taking the complaining witness any farther than the outskirts of Madison. After driving the complaining witness some SO miles from Waukesha it is strange the defendant would not drive her another few miles to her destination in the city if he was not worried about the alleged rape. At least the jury was entitled to draw the inference.

Statement of many evidentiary facts has been omitted but the record contains sufficient evidence which if believed and rationally considered by a jury could convince it of the guilt of the defendant beyond a reasonable doubt. To reverse, this court would be required to say the evidence is so insufficient as a matter of law that no jury could be convinced beyond a reasonable doubt of the defendant’s guilt, which this court is not prepared to do. While some members of this court might, if they were the triers of the fact, come to a different conclusion than that which the jury did, such fact is not the test of reversal on appeal.

The defendant complains the trial court abused its discretion in not allowing him to cross-examine the complaining witness as thoroughly and to such length as he desired, especially concerning the nature of the neighborhood in which she lived in Chicago and in reference to certain streets. It is contended a liberal cross-examination would show a neighborhood which would be indicative of the complaining witness’ courage, nerve, ability to resist, and her character. An examination of the record shows the defendant was allowed an extensive cross-examination on these points; perhaps not to the complete extent he wished but, nevertheless, extensive. The extent of a cross-examination lies within the discretion of the trial court. Nehls v. Nehls (1963), 21 Wis. (2d) 231, 124 N. W. (2d) 18; Musha v. United States Fidelity & Guaranty Co. (1960), 10 Wis. (2d) 176, 102 N. W. (2d) 243; and Smith v. Atco Co. (1959), 6 Wis. (2d) 371, 94 N. W. (2d) 697. We find no abuse of discretion.

Error is cited by the defendant in the admission of testimony of the crime-lab technician, who testified as to the presence of blood and semen stains on certain items of clothing worn by the defendant and also on clothing worn by the complaining witness on the night of the alleged rape. It is contended the admission of this evidence was prejudicial error because an examination was not made for other stains and to determine whether the blood and semen stains on the complaining witness’ clothing was the same as the stains on the defendant’s clothing. The defendant does not claim the opinion is not that of an expert but that it is too limited to be probative. The trial court has wide discretion in admitting opinion evidence of expert witnesses. Kreyer v. Farmers’ Co-operative Lumber Co. (1962), 18 Wis. (2d) 67, 117 N. W. (2d) 646. The failure to examine for insignificant stains which would be immaterial does not render inadmissible material evidence. The failure to identify the blood or semen as coming from the defendant does not raise a question of admissibility but of the weight to be given to the evidence.

The defendant claims impropriety existed in respect to contact with the jury and argues a deputy sheriff and an assistant district attorney drove the jury from the courthouse three blocks to a country club for dinner while it was deliberating. The record does not support the claim.

Lastly, the defendant contends he has been placed in double jeopardy contrary to both the Fifth amendment to the constitution of the United States and sec. 8, art. I of the constitution of the state of Wisconsin which forbid placing a person twice in jeopardy of punishment for the same offense. When the defendant was first tried by the circuit court and found guilty he was committed to the state department of public welfare in accordance with sec. 959.15, Stats., of the sex-deviate law for a presentence social, physical, and mental examination. After sixty days he was returned to the court with the report he did not need treatment and, therefore, could be sentenced and committed to prison. It was at that time the trial court discovered the jury had been improperly waived and it had no jurisdiction to sentence the defendant. The defendant made a motion for a mistrial at the suggestion of the court but the court vacated its judgment of conviction and ordered a new trial.

Consequently, the defendant is in error in considering the presentence examination as a punishment sentence on a conviction. But even if the defendant had been serving a sentence in prison it would not foreclose a second trial because of double jeopardy where the conviction of the trial court is reversed for error. We do not reach the question of whether the Fifth amendment of the constitution in respect to double jeopardy now applies to state courts by virtue of the Fourteenth amendment. Up to the present it has been considered that the Fifth amendment as to double jeopardy is not so applicable. Bartkus v. Illinois (1959), 359 U. S. 121, 79 Sup. Ct. 676, 3 L. Ed. (2d) 684, rehearing denied 360 U. S. 907, 79 Sup. Ct. 1283, 3 L. Ed. (2d) 1258; Brock v. North Carolina (1953), 344 U. S. 424, 73 Sup. Ct. 349, 97 L. Ed. 456; Palko v. Connecticut (1937), 302 U. S. 319, 58 Sup. Ct. 149, 82 L. Ed. 288; United States ex rel. Battle v. Fay (D. C. N. Y. 1963), 219 Fed. Supp. 798. But assuming the Fifth amendment were applicable and federal case law applied to state criminal proceedings, the defendant’s contention is without merit. In federal prosecutions a defendant is not placed in double jeopardy within the meaning of the Fifth amendment of the United States constitution when he is retried after a new trial has been granted because of error in the first trial. Forman v. United States (1960), 361 U. S. 416, 80 Sup. Ct. 481, 4 L. Ed. (2d) 412; Green v. United States (1957), 355 U. S. 184, 78 Sup. Ct. 221, 2 L. Ed. (2d) 199, 61 A. L. R. (2d) 1119; Bryan v. United States (1950), 338 U. S. 552, 70 Sup. Ct. 317, 94 L. Ed. 335.

Basically there are at least two theories which deny the defendant’s contention he had been placed in double jeopardy. The first is the theory of the continuity of the proceeding and is well explained in State v. Witte (1943), 243 Wis. 423, 10 N. W. (2d) 117. This theory contemplates one legal trial and there is but one continuing jeopardy until the defendant has had a valid trial free from reversible error for the offense charged. The defendant is entitled to be legally convicted or acquitted and until that stage is reached continuity of the jeopardy exists. The second trial because of error or invalidity of the first trial is but the continuation in legal contemplation of the criminal proceeding and there is no second or double jeopardy. This theory has recently been recognized and affirmed in State v. Kennedy (1962), 15 Wis. (2d) 600, 113 N. W. (2d) 372. It is immaterial whether the new trial is granted on the motion of the defendant or on the court’s motion or whether the reason is merely irregularity or invalidity of the proceedings. See 85 A. L. R. (2d) 486; Anno. New Trial—Court’s Own Motion. Some of the older cases in Wisconsin discussing this problem are In re Keenan (1859), 7 Wis. 588 (*695); State v. Martin (1872), 30 Wis. 216, 11 Am. Rep. 567; Smith v. State (1928), 196 Wis. 102, 219 N. W. 270.

The second theory is the waiver doctrine which is somewhat inconsistent with the first theory and it is based on the principle that a defendant cannot ask for and receive a new trial on grounds of error or invalidity and then inconsistently claim he was placed in jeopardy in the first trial. Oborn v. State (1910), 143 Wis. 249, 126 N. W. 737; 15 Am. Jur., Criminal Law, pp. 89-91, sec. 427. Implicit in the request for a new trial must of necessity be a waiver of the objection of the defendant to the new trial on the ground of double jeopardy. Obviously, this theory is particularly applicable to those cases wherein the defendant requests the new trial. The first theory better explains a retrial upon a reversal of an acquittal secured by the state.

The defendant claims that all he asked for was a mistrial but the trial court granted him a new trial. The trial court cannot be foreclosed from granting the relief which necessarily follows from the request for a mistrial. A mistrial is not a judgment of acquittal and, therefore, normally the defendant should expect to be tried again. Early in the history of this state it was held it was not error for a court to grant a new trial because the defendant had not asked for it. In re Keenan, supra.

By the Court. — Judgment and order affirmed.

       This rule is sometimes stated in terms of “any credible evidence to sustain the verdict.” See State ex rel. Isham v. Mullally (1961), 15 Wis. (2d) 249, 112 N. W. (2d) 701, and State v. Morrissy (1964), 25 Wis. (2d) 638, 131 N. W. (2d) 366. But as pointed out in Stevens, such statement of the rule must be understood in reference to the burden of proof in criminal cases and to mean credible evidence sufficient to convince a jury beyond a reasonable doubt. See also Welsher v. State, post, p. 160, 135 N. W. (2d) 849.