text:
    Beghin, Respondent, v. State Personnel Board and another, Appellants.

      September 13

    October 5, 1965.

      For the appellants there was a brief by Bronson C. La Follette, attorney general, and Robert J. Vergeront, assistant attorney general, for the State Personnel Board, and William J. Duffy of Green Bay, for Carl K. Wettengel, and oral argument by Mr. Vergeront and Mr. Duffy.

    For the respondent there was a brief by Michael, Best & Friedrich of Milwaukee, and Stephen E. Gavin of Madison, attorneys, and Jerris Leonard of Milwaukee of counsel, and oral argument by Mr. Leonard.

   Beilfuss, J.

The principal issue is the time and manner in which veterans’ preference points are to be applied to civil-service examinations.

The following portions of Wisconsin statutes bear upon the issues:

“16.10 Appointments, promotions, changes in classified service. (1) . . . promotions in the classified service, shall be made only according to merit and fitness, which, except as otherwise provided by law shall be ascertained so far as practicable by examinations which so far as practicable, shall be competitive.”
“16.11 Examinations; procedure, where held. (1) All examinations for positions in the classified service shall be of such character as to determine the qualifications, fitness and ability of the persons examined to perform the duties of the class for which the register is being established. The examinations may be written, oral, physical, evaluation of training and experience, demonstration of skill, or any combination of such types. The examinations may take into consideration such factors, including education, experience, aptitude, capacity, skill, knowledge, character, physical fitness and other qualifications, as in the judgment of the director, enter into the determination of the relative fitness of the applicants. A person failing in the written portion of any such examination shall not be permitted to participate or continue with any other remaining portion of such examination. ... If 2 or more competitors have like averages in the total examination, the order in which their names shall appear on the register shall be determined by that component part of the several parts of the total test as in the judgment of the director has been determined as most significant in relation to the job for which the examination is given.”
“16.18 Classified service; notice of vacancy, preference TO VETERANS, APPOINTMENT, OBJECTIONS TO. (1) . . . Whenever eligibles are certified, they must be those candidates who have been graded highest in an examination held in pursuance of ss. 16.01 to 16.30, and the rules made in accordance therewith, except that there shall be no restriction as to age in the case of veterans and except that other conditions being equal, a preference shall be given in favor of veterans of any of the wars of the United States in accordance with the dates specified in s. 45.35 (5a). The employing officer shall not reject because of age any eligible veteran, 55 years of age or less, whose name has been certified to him. Preference is hereby defined to mean that whenever an honorably discharged veteran competes in any examination conducted by the bureau he shall be accorded 5 points, and if such veteran has a disability which is directly or indirectly traceable to war service, he shall be accorded another 5 points, in addition to earned ratings therein. . . .”
“16.19 Classified service; promotions. (1) Vacancies in positions in the classified service shall be filled, so far as practicable, by promotion from among persons holding positions in the classified service, under rules made and enforced by the personnel board. Promotions shall be based upon merit and fitness to be ascertained by examinations, to be provided by the director, and upon the superior qualifications of the person promoted as shown by his previous service, due weight being given to seniority and experience.”

The basic purpose of any civil-service statute is to provide a method to determine and obtain the best-qualified persons available for government service. Our statutes are designed to achieve this purpose.

Many, if not most states, provide for a veterans’ preference to be awarded to honorably discharged veterans in establishing priority for appointment in a civil service position.

As a generalization, it can be said that statutes which permit a veteran’s preference, after it has been established that the veteran is eligible and qualified, have been held to be constitutional. The respondent, Beghin, does not contend that our statute providing for veterans’ preference is per se unconstitutional but rather that its interpretation and application by the State Personnel Board is erroneous and, as applied, unconstitutional. Beghin’s principal contention is that the board and the director have erroneously interpreted and applied the statute.

We must first determine at what stage of the examination process the veterans’ preference points are to be applied. The authorization of veterans’ preference is contained in sec. 16.18 (1), Stats., which is quoted in part above.

In deciding this phase of the action the trial court stated:

“. . . It appears to the Court that it is the time when certification is made to the appointing authority. This is required by Sec. 16.18 (1) ‘. . . whenever eligibles are certified ... a preference shall be given in favor of veterans. . .’, other things being equal. Until the entire examination has been completed and graded the time for certification has not arrived. Whenever eligibles are certified, they must be those candidates who have been graded highest in an examination. . .’ Sec. 16.18 (1), Stats. Thus, the allowance of veterans’ preference points at the conclusion of the written portion of the examination and before the entire examination has been completed and the competitors are graded, as the Bureau and Board allowed them, is premature and is a prejudicial error of law.”

We agree with this analysis and construction of the statute. Contrary to the interpretation and application by the board, veterans’ preference points cannot be added to the grade until the entire examination has been completed.

Sec. 16.11 (1), Stats., provides that all examinations for positions in classified civil service shall be designed “to determine the qualifications, fitness and ability of the persons examined to perform the duties” of the position in question. “The examination may be written, oral, physical, evaluation of training and experience, demonstration of skill, or any combination of such types.” The statute then provides, “A person failing in the written portion of any such examinations shall not be permitted to participate or continue with any other remaining portion of such examination.”

Only the respondent, Beghin, and Hettrick of the top five had achieved a passing grade of 70 on the written portion of the examination.

Although the board makes some arguments to the contrary, it is apparent from its practice or application of the statute that it recognized that it was necessary for an applicant to obtain a passing grade on the written portion of the examination as a prerequisite to participation in the remaining portions of the examination.

To avoid disqualification of veterans at this stage, the director and the board have adopted the practice of adding the veterans’ preference points to the grades obtained on the written examination to bring them up to a passing grade. If the addition of veterans’ preference points brings his grade on the written examination up to a passing grade he is permitted to continue the examination. Veterans’ points are not given, at this state, to veterans who have achieved a passing grade. After the participation in the remaining portion of the examination, veterans’ preference points added to the written examinations are then withdrawn and then added to the composite grade in the same manner as they are added to the composite grades of all veterans. This practice in effect would allow some but not all veterans to utilize preference points twice.

We find no authority for this interpretation and application of the statute, either in language of the statute or by fair implication. If the practice is permitted, it, in effect, allows a special class of persons to be qualified which has not met the statutory minimum requirements. We cannot read this legislative intent into the statute. If such was the intention of the legislature the statute would probably be unconstitutional.

The board, in support of its position, devotes a considerable portion of its argument to the legislative history of the statute and to the fact that the statute has been administered in this manner for many years. Legislative history and longstanding administrative interpretation are significant aids in statutory construction when ambiguity or absence of necessary administrative direction appears in the statute. In this instance we find no ambiguity or lack of administrative direction to justify the interpretation and application of the statute by the director and the board.

We conclude that the statutes specifically direct that veterans’ preference points are to be added to the composite or final grade of the applicant and that no applicant, veteran or otherwise, can be permitted to complete an examination to establish his qualifications when he has failed the written portion of the examination.

This construction of the statute makes it unnecessary to further consider any constitutional questions under the issues as raised by the parties.

The trial court properly reversed the order of the board and remanded the matter for further proceedings.

By the Court. — Judgment affirmed.

         Meenagh v. Dewey (1941), 286 N. Y. 292, 36 N. E. (2d) 211; Carney v. Lowe (1939), 336 Pa. 289, 9 Atl. (2d) 418; Commonwealth ex rel. Graham v. Schmid (1938), 333 Pa. 568, 3 Atl. (2d) 701.

        Frankenthal v. Wisconsin Real Estate Brokers’ Board (1958), 3 Wis. (2d) 249, 255, 88 N. W. (2d) 352, 89 N. W. (2d) 825; Dunphy Boat Corp. v. Wisconsin Employment Relations Board (1954), 267 Wis. 316, 326, 64 N. W. (2d) 866.


source: Caselaw Access Project

author: Heffernan, J.

license: Public Domain

text:
    Estate of King: State, Appellant, v. Marine National Exchange Bank of Milwaukee, Executor, Respondent.

      September 13

    October 5, 1965.

      For the appellant the cause was argued by E. Weston Wood, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, Harold H. Persons, assistant attorney general, attorneys, and Richard E. Williams, inheritance tax counsel, of counsel.
    For the respondent there was a brief by Shea, Hoyt & Greene, and oral argument by Paul F. Meissner, all of Milwaukee.
   Heffernan, J.

The sole question before the court is the taxability of the pension payments to be made to Mrs. King. The state contends that a tax is imposed by sec. 72.01 (3) (b), Stats.:

“When a transfer is of property, made without an adequate and full consideration in money or money’s worth ... by . . . gift, intended to take effect in possession or enjoyment at or after the death of the . . . donor, . . .”

It is our conclusion that this case is controlled by the Estate of Sweet (1955), 270 Wis. 256, 70 N. W. (2d) 645. We there held that no tax was assessable against a widow’s pension provided for by the Federal Employees’ Pension Act, where the pension, by the terms of the statute, was payable after the death of the employee only to the wife. Our court concluded that there would be no tax when “the federal retirement system prescribes the beneficiary and the employee cannot change it.” Estate of Sweet, supra, at page 262.

The principles upon which the Estate of Sweet was decided were amplified in Estate of Stone (1960), 10 Wis. (2d) 467, 103 N. W. (2d) 663.

In Stone the decedent elected to come under a “joint and survivor option” of the trust agreement. Under the terms of this option, Stone elected to receive a reduced pension during his lifetime, and by so doing he triggered the provision of the agreement that extended the payment of the pension to his widow for her lifetime following his death. In the Stone Case the decedent chose to forego some of the pension payments that might have been payable in his lifetime that the widow might receive benefits for her life. In the Stone Case this court said:

“We have no hesitancy in deciding that Mr. Stone’s election of a joint and survivor option was. a ‘transfer’ of whatever interest he had in the trust fund, . . .” Estate of Stone, supra, at page 470.

The facts in Stone were distinguished from those in Sweet. It was pointed .out that Mr. Sweet had no option to designate his beneficiary or affect the amount to be paid after his death. The entire devolution of the pension was controlled by statute and was beyond Sweet’s control. Stone, “however, was free to retain all the benefits ... for himself, or he could, by reducing his own benefits, provide benefits to his wife if she survived.” Estate of Stone, supra, at page 471.

The court summarized the Sweet holding by saying:

“. . . we consider that the Sweet decision is authority only as to benefits which, under a particular retirement plan, are payable to another upon the death of the employee without any option having been given to the employee as to the distribution of such benefits.” Estate of Stone, supra, at page 474.

It appears to us that, in this controlling particular, the facts in the case before us are substantially the same as in Sweet. The terms of the Journal pension trust agreement determine how the benefits of the trust are to be distributed to the retired employee and to his widow. No power or discretion is vested in the decedent to alter this distribution. This situation is different from that in Stone, and as in Sweet we deem that no transfer has been made by the decedent.

The attorney general, appearing for the state of Wisconsin, urges that we overrule the Sweet decision on the basis of the reasoning expressed by Mr. Justice Currie for the dissenters in Sweet. The dissenters therein took the position that “by voluntarily rendering services for the federal government under the terms of the employment . . . performed the acts which effected the transfer to his widow.” Estate of Sweet, supra, at page 264. The dissent also pointed out that the pension payments were not in fact a gratuity, but were in fact additional compensation, the payment of which was deferred until retirement, and hence the fund to the extent of his interest was the property of the decedent.

The logic of the dissent has much to commend it, but we are not in a position to consider this question as an original proposition. Since the decision in Sweet in 1955, our position was clarified and re-enunciated in Stone in 1960. One commentator stated:

“When the Stone and Sweet cases are considered together, it is clear that there will not be a tax on the amount which the wife receives if the plan does not give the husband an option.” 1961 Wisconsin Law Review, 153, 156.

The Stone opinion pointed out that the refusal of the legislature to affirm taxability is not the equivalent of an express tax exemption or an affirmance of the court’s decision. Nevertheless, as set forth in Stone, the legislature has declined to alter the statute in order to eliminate the effect of Sweet, neither has there been any legislative change since the Stone Case that would cast doubt upon the distinctions that were drawn therein.

It appears, therefore, that the legislative history of sec. 72.01 (3) (b), Stats., together with the interpretation that it has been given in Sweet, Stone, and the cases that preceded, would justify the analysis of the commentator quoted above.

This court has previously stated that it would depart from stare decisis in unintentional tort actions or in situations involving conduct that would not in the usual course of things be planned in advance and when it appeared that there were compelling policy reasons that the established court-made rule should be altered. Kojis v. Doctors Hospital (1961), 12 Wis. (2d) 367, 107 N. W. (2d) 131; Holytz v. Milwaukee (1962), 17 Wis. (2d) 26, 115 N. W. (2d) 618. As we said in Wilcox v. Wilcox (1965), 26 Wis. (2d) 617, 623, 133 N. W. (2d) 408:

“The rules of stare decisis attempt to give certainty to our law, so conduct can be planned in light of foreseeable legal consequences. Certainty, however, is less relevant in the law of unintentional torts, where conduct is not planned, than in the law of contracts or, more particularly, in the law of real property.”

Certainly we should apply a similar rationale when considering a reinterpretation of a statute involving inheritance taxes. While no precedent of this court is under all circumstances immune from re-examination, nevertheless, where a course of action is likely to be determined only after a considered examination of the existing case law, we are obviously more reluctant to disturb the posture of the law than where the conduct is of the spur of the moment. The entire field of estate planning presupposes a stability and continuity to the law that will enable a well-informed lawyer to predict the tax consequences of his client’s conduct in regard to various arrangements that may be devised for the disposition or transfer of his property.

We, therefore, cannot properly consider this problem ab initio. In the absence of a legislative change which would clearly make the transaction herein taxable, or in the absence of a showing of compelling policy reasons (and there has been no such showing) that our previous rulings have resulted in the inequitable or unfair administration of the inheritance-tax laws, we consider that this case is controlled by our previous decisions.

By the Court. — Order affirmed.


text:
    Casimere, Respondent, v. Herman and another, Appellants.

      September 8

    October 8, 1965.

      For the appellants there was a brief by Gif fin, Simarski & Koch, attorneys, and James P. Brennan of counsel, all of Milwaukee, and oral argument by Mr. Brennan.

    For the respondent there was a brief and oral argument by Theodore W. Harris of Racine.
   Heffernan, J.

The appellant argues that the testimony of Dr. McDonald, a psychologist, is not competent to support an award of future pain and suffering. He insists that the question of future pain and suffering is a medical one and that, by statute, only a witness holding a medical degree and licensed under the law of the state of Wisconsin is competent to testify. He relies also on previous pronouncements of this court in which we have said:

“Only a medical expert is qualified to express an opinion to a medical certainty, or based on medical probabilities (not mere possibilities), as to whether the pain will continue in the future, and, if so, for how long a period it will so continue. In the absence of such expert testimony . . . the jury should be instructed that no damages may be allowed for future pain and suffering.” Diemel v. Weirich (1953), 264 Wis. 265, 268, 58 N. W. (2d) 651.

The respondent distinguishes these cases by pointing out that they concern testimony of a nonexpert layman, as contrasted to the testimony of a licensed physician. The respondent claims that the rule is not applicable where an expert, in this case a clinical psychologist, is the witness. Respondent also relies on sec. 147.14 (2) (b), Stats., which permits “any person to testify as an expert on a medical subject in any action or judicial proceeding where proof is offered satisfactory to the court that such a person is qualified as such expert.” In support of this, respondent points to the record showing that the witness had an extensive educational background in psychology, that he held a Ph.D. in the subject, and had practiced as a clinical psychologist for several years. Moreover, his qualifications to testify were not challenged by the appellant until after the rendition of the verdict.

Respondent also quotes our language in Alsteen v. Gehl (1963), 21 Wis. (2d) 349, 359, 124 N. W. (2d) 312:

“Psychiatry and clinical psychology, while not exact sciences, can provide sufficiently reliable information relating to the extent of psychological stress, and to the causal relationship between the injury and the defendant’s conduct, to enable a trier of fact to make intelligent evaluative judgments on a plaintiff’s claim,”

and concludes that, though we comment conjunctively on the probative value of psychiatry and psychology when testifying, this is indicative of the acceptance of the testimony of a psychologist alone. Appellant, on the other hand, does not deny the competence of a psychologist to testify as an expert witness, but insists that his testimony as an expert (at least on medical matters), relating to the tests he conducted, are merely tools to be used by the licensed psychiatrist to make his findings more objective, but, of themselves and without the aid of the medical expert, are insufficient to support the award for future pain and suffering.

Suffice it to say that the arguments posed by the parties point up serious questions regarding the competence of a psychologist to testify as to future pain and suffering or in regard to other aspects of a personal-injury case having medical implications when that testimony is not used as an adjunct to the testimony of a licensed physician or psychiatrist.

Nevertheless, qualification of an expert witness has historically not been a matter of licensure, but a matter of experience. During periods of epidemic, when lay persons were extensively exposed to disease, they were competent to testify in regard to particular diseases with which they were familiar. In Wisconsin we have held, in view of his knowledge of the condition of dead bodies, that a non-medical coroner could give his opinion of the time of death. Palmer v. Schultz (1909), 138 Wis. 455, 120 N. W. 348. This court has allowed the testimony of lay witnesses that an applicant for a life insurance policy was apparently in good health. Stanislawski v. Metropolitan Life Ins. Co. (1939), 231 Wis. 572, 286 N. W. 10.

In State v. Law (1912), 150 Wis. 313, 136 N. W. 803, 137 N. W. 457, three professors of the University of Wisconsin medical school, none of whom were licensed to practice in the state as physicians, as the statute required, were permitted to testify as expert medical witnesses that the abdominal cavity of a deceased abortion victim contained “bacteria known as streptococci” and that the deceased was five or six weeks pregnant at the time of death. The court stated at page 328:

“The mere fact that the science of medicine covers, includes, or requires some knowledge of bacteriology, or chemistry, or botany, or biology, or embryology would not exclude an expert in either of these sciences . . . .”

Hence, the law traditionally has permitted limited testimony of a medical nature by one not licensed as a medical doctor, if he is, in fact, qualified as an expert. Moreover, even a cursory study of the literature of mental conditions reveals that there are those who question whether all aspects of abnormal behavior are, in fact, medical problems in the traditional sense.

“Behavior considered to be mental illness is believed to result primarily from the unconscious or uncontrollable disruption of thought-process integration and symbol interpretation, resulting from adaptive processes learned or experienced in coping with the self-concept or environment. The apparently psychological-functional nature of these disturbances — e.g., their attempt to protect the individual from personal stress, as well as the absence of defined symptom patterns or known causative organisms — raises a serious question as to the appropriateness of continuing to consider them diseases in the traditional medical sense.”

In Noyes and Kolb, Modern Clinical Psychiatry, it is stated:

“The physician must realize, however, that patients may become ill from disturbed human relations as well as from genetic, constitutional, metabolic or other physical causes. He Should recognize that mental disorders are not so much diseases as disturbances of persons.”

Considering the recent origins of psychology and psychiatry, it is not surprising that there is a sharp difference of opinion in regard to where the expertise of the psychologist impinges on the exclusive domain of the psychiatrist.

It is therefore little wonder that the courts have been reluctant in allowing, and generally are adamant in refusing to allow, a psychologist to “go it alone” as a witness in what might be in the realm of medicine.

On the other hand, there are areas, such as psychometrics, where the skill of the psychologist is considered by many to be superior to that of the psychiatrist.

The law has long permitted calling as an expert witness any person whose training, experience, and method within his particular discipline is acknowledged to be sound and trustworthy. In many aspects of his work, the psychologist has undoubtedly met this standard.

As the great Wigmore said many years ago :

“Whenever the Psychologist is really ready for the Courts, the Courts are ready for him.” 3 Wigmore, Evidence (3d ed.), p. 368, sec. 875.

However, to decide the case before us, we are not obliged to explore the penumbra of the psychologist’s expertise where some members of this court have grave doubt as to such testimonial competence on the part of a clinical psychologist.

We so conclude because the testimony of Dr. McDonald, taken at its full value, irrespective of any questions that have been raised in respect to his testimonial qualifications as a witness, is insufficient to support the award of damage for future pain and suffering.

The only testimony in regard to future pain and suffering, or future disability, is that elicited from Dr. McDonald by the plaintiff’s attorney. The sum total of that testimony appears below :

"Q. What prognosis did you reach with respect to Miss Casimere? A. That she was, first of all, the fact that she was in need of treatment for her emotional condition, and that if she did not get that treatment, the condition that I detected in her was likely to persist.
“Q. How long do you think it will persist without treatment? A. Very probably as long as treatment is not instituted.
“Q. For her lifetime if she doesn’t get it? A. That is quite possible.”

This testimony, even though it had been given by a con-cededly qualified witness, fails to meet the standard of medical certainty required by this court. This court has held that, though no particular words of art are necessary to express the degree of medical certainty required to sustain an award for future pain and suffering, it is necessary that a reasonable interpretation of the expert’s words show more than a mere possibility or conjecture.

“The test is not the use of a word but the meaning or sense in which such word is used. To ascertain the meaning of words and phrases is a problem of interpretation.” Unruh v. Industrial Comm. (1959), 8 Wis. (2d) 394, 402, 99 N. W. (2d) 182.

It is clear that the phrase used by Dr. McDonald that it was “quite possible” that the disability would persist for her lifetime does not meet the standard required. True, he did use the phrases, “likely to persist,” and that it would “very probably” persist. However, the probative effect of this testimony is substantially impaired by Dr. McDonald’s statements that are inconsistent therewith. He testified, “that if Miss Casimere were working, her condition would improve.” (Emphasis supplied.) He admitted that he had not seen the plaintiff except for a brief interval prior to trial and, as to that meeting, he stated, “I was not able to assess whether she suffers from emotional disturbance at the present time . . .”

More significantly, the testimony of Dr. McDonald is pregnant with the admission that the mental condition from which the respondent suffers is reversible. He states that the disability will persist “as long as treatment is not instituted.”

This statement can well lead to the conclusion that the condition, if treated, is curable. Under this state of the evidence, the jury could not find to the “reasonable degree of medical certainty or probability” required that the injury would be permanent, and the extent of future disability or pain and suffering is merely speculative.

Moreover, the record is devoid of any attempt on the part of the respondent to mitigate damage by undergoing the treatment allegedly required to cure or ameliorate her mental problems. Dr. Groh, the orthopedic surgeon who treated the respondent for her physical injuries, testified that the respondent admitted she did not take the prescribed course of exercises designed to alleviate back pains which allegedly became acute after the accident, but which Dr. Groh concluded were postural in origin.

We have previously said:

“No injured person is required to undergo surgery or treatment that is hazardous or unduly expensive but one injured by the wrong of another is obliged to exercise reasonable care to minimize damages. This obligation includes the seeking of medical care as well as the following of the advice of the physician consulted in order to alleviate the injury.” Collova v. Mutual Service Casualty Ins. Co. (1959), 8 Wis. (2d) 535, 539, 99 N. W. (2d) 740.

The appellant cannot be expected to pay for a lifetime’s disability or pain if proper medical treatment or psychotherapy can reasonably correct the respondent’s ailments. Yet no evidence is of record of the probable duration of treatment or its cost. While the injured party is not obliged to submit to medical or surgical care, the proper period of time for which damages for future pain and suffering or other disability are awarded cannot be in excess of that reasonably required to effect a cure.

Thus, the record leads to the inference that the respondent’s disability is not permanent but correctable. In addition, no evidence was presented to the jury by which it could have calculated the reasonable damages that would arise in the future. We are obliged to hold that the evidence is not sufficient to sustain an award of any damages for future pain and suffering or for permanent or future disability.

The jury also awarded $2,500 for loss of earnings. The evidence does not support that portion of the verdict in that amount. It is conceded by appellant that if the respondent was unable to work from February to May, 1964, her loss of wages for that period would properly amount to $1,401. Her inability to work for that period has been adequately proved. It also appears that the respondent lost time from work from July 17, 1964, to the time of trial and is, hence, entitled to $525, or a total loss of earnings to the time of trial of $1,926. We find no evidence that would sustain a wage loss in excess of that amount. Presumably, the jury awarded the balance of the $2,500, or $574, for future loss of earnings. There is no evidence to support such an award. It is excessive.

We find the jury’s award of medical expenses to date $600, property damage $50, loss of earnings $1,926, and the award for past pain and suffering $2,000 to be supported by the evidence; and to the extent of $4,576, the verdict (prior to application of comparative negligence ratio) is sustained. The jury’s award for future pain and suffering or future loss of earnings is speculative at best and must be set aside. We, however, give the respondent the option to accept the judgment as reduced or to elect to have a new trial on all issues.

By the Court. — Judgment reversed, and cause remanded to the trial court with instructions to enter a formal order for a new trial on all the issues, unless within twenty days after the return of the record from this court to the trial court the respondent files a consent with the clerk of the county court to accept judgment in the sum of $4,118.40 (which figure is the jury’s verdict as supported by the evidence as reduced by 10 percent negligence, in accordance with sec. 331.045, Stats.), plus costs and disbursements. If the appropriate notice of his election to accept the reduced amount is given by the respondent within the time specified, then in lieu of the order for a new trial, the county court should enter a judgment for such reduced amount.

       Sec. 147.14 (2) (a) and (b), Stats., reads as follows:
      “(a) No person without a license or certificate of registration from the state board of medical examiners shall have the right to testify in a professional capacity on a subject relating to medical treatment, as a medical or osteopathic physician or practitioner of any other form or system of treating the sick, as defined in s. 147.01; provided that a medical or osteopathic physician, licensed to practice in another state, may testify as the attending or examining physician or surgeon to the care, treatment, examination or condition of sick or injured persons whom he has treated in the ordinary course of his professional practice for the sickness or injury which is the subject of the judicial inquiry in any action or proceeding in which he is called as a witness.
      “(b) A court may permit any person to testify as an expert on a medical subject in any action or judicial proceeding where proof is offered satisfactory to the court that such person is qualified as such expert.”

       See also Peterson v. Western Casualty & Surety Co. (1958), 5 Wis. (2d) 535, 93 N. W. (2d) 433; Rude v. Algiers (1960), 11 Wis. (2d) 471, 105 N. W. (2d) 825; Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis. (2d) 568, 117 N. W. (2d) 660; and Spleas v. Milwaukee & Suburban Transport Corp. (1963), 21 Wis. (2d) 635, 124 N. W. (2d) 593.

        Evans v. People (1863), 12 Mich. 27, 36, 20 N. W. 531.

       50 American Bar Association Journal (1964), 240, George Lassen, The Psychologist as an Expert Witness in Assessing Mental Disease or Defect.

       Ibid, page 241.

       Generally, for opposing points of view re the competence of a psychologist as a “medicar’ witness, see briefs submitted by American Psychiatric Association and American Psychological Association in Jenkins v. United States (D. C. Cir. 1962), 307 Fed. (2d) 637, 17 American Psychologist 623, 626 (1962), E. L. Hoch and John G. Darley, A Case at Law.

        Diemel v. Weirich (1953), 264 Wis. 265, 58 N. W. (2d) 651; Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 86, 102 N. W. (2d) 393; Bleyer v. Gross (1963), 19 Wis. (2d) 305, 120 N. W. (2d) 156.

         Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 87, 102 N. W. (2d) 393.


author: Hallows, J. Beilfuss, J.

text:
    Shaw, by Guardian ad litem, and another, Plaintiffs, v. Wuttke and another, Defendants. [Two appeals.]

      October 4

    November 2, 1965.

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

    For the defendants there were briefs by Gif fin, Simarski & K-Och, attorneys, and E. J. Simarski of counsel, all of Milwaukee, and oral argument by E. J. Simarski.

   Hallows, J.

In considering it had erred in giving the emergency-doctrine instruction the trial court reasoned the defendant was negligent m the management and control of his car, which negligence contributed to the creation of the emergency. In reaching this conclusion the trial court assumed the plaintiff was riding his bicycle at a speed of five miles per hour and reasoned that at that rate the plaintiff would take two and a half seconds to travel from his position in the alley where he was first seen by the defendant to the point of impact in the street and the defendant going 20 miles an hour, which he testified was his speed, must have then been some 70 feet from the alley and could have stopped his car in 47 feet. This version of the evidence might be taken by the trier of the facts, but to hold this as a matter of law the rest of the evidence must not be sufficient to sustain a contrary view. There was, however, credible evidence which would support the view the defendant was much closer to the alley when the plaintiff came out of the alley into the street without stopping.

There is no basis for assuming the plaintiff was traveling only five miles an hour in view of the testimony of the plaintiff, the defendant, and other witnesses that the plaintiff was traveling fast. The alley was downgrade and the plaintiff was trying to catch up with his friend who was ahead of him on his bicycle. We think the jury could ascribe more weight to the testimony of the plaintiff’s speed than the trial court did. It was undisputed the plaintiff came out of the alley on his bicycle fast or very fast, that he could not be seen from the street south of the alley until he emerged from a hedgerow which extended along the south edge of the alley to a point two and a half feet east of the sidewalk or 6 or 8 feet from the curb.

The defendant testified he did not put his brakes on until the time of impact because it all happened so fast he was not able to apply his brakes sooner. There were skid marks starting beyond the point of impact and the defendant’s car came to a stop some 46 feet beyond the point of impact which would be approximately correct if he was going 20 miles an hour. It is true, the defendant gave several versions of his speed as being 15, 20, and even 25 miles per hour and there are other discrepancies in his testimony but these are for the jury to resolve.

Before a party is entitled to the benefits of the emergency doctrine he must be free from negligence which contributed to the creation of the emergency. Cook v. Thomas (1964), 25 Wis. (2d) 467, 131 N. W. (2d) 299; Borowske v. Integrity Mut. Ins. Co. (1963), 20 Wis. (2d) 93, 121 N. W. (2d) 287; Baird v. Cornelius (1961), 12 Wis. (2d) 284, 107 N. W. (2d) 278; Blasi v. Drafz (1960), 12 Wis. (2d) 14, 106 N. W. (2d) 307; Deignan v. New Amsterdam Casualty Co. (1958), 2 Wis. (2d) 480, 87 N. W. (2d) 529; Hutzler v. McDonnell (1942), 239 Wis. 568, 2 N. W. (2d) 207. If there is a factual dispute as to such negligence and assuming the time element is so short as to make the doctrine otherwise applicable, a person is entitled to the emergency-doctrine instruction and it is for the jury to determine its application. Misiewicz v. Waters (1964), 23 Wis. (2d) 512, 127 N. W. (2d) 776. If, however, it can be held a person was negligent as a matter of law and such negligence contributed to the emergency, then such person is not entitled to the emergency-doctrine instruction. Under the facts the time element, at the most two and a half seconds and more probably less, was short enough to apply the doctrine if the defendant was not negligent, or if so, such negligence did not contribute to the emergency. We think the trial court was in error in holding on motions after verdict that as a matter of law the defendant was negligent and such negligence contributed to the emergency and, therefore, it should not have given the emergency-doctrine instruction.

Since the order granting a new trial must be reversed, it is unnecessary to consider the plaintiff’s appeal that the new trial should include the issue of damages because, the plaintiff having been found guilty of negligence exceeding 50 percent, any question concerning damages is academic.

The petition for review to sustain the order granting a new trial assigns as error the trial court’s ordering the plaintiff’s attorney to produce a prior signed written statement of a witness so that defendant’s counsel could use it for impeachment purposes. The plaintiff had examined as his witness one Susan Bast who stated in substance that at the time she saw the plaintiff coming out of the alley into the street the defendant’s automobile was just coming past the north side of the third house south of the alley. On cross-examination she was asked if she had given a written statement to one of the plaintiff’s trial attorneys sometime prior to trial. Upon her giving an affirmative answer, the court ordered the statement to be produced and it was used by defendant’s counsel in his cross-examination. This statement was to the effect the witness was not sure how far the defendant’s car was south of the alley when she saw the plaintiff come into the street from the alley.

It is claimed this statement was part of the attorney’s work product, that it was not evidence in the case because the witness was not a party, and that the witness was not shown to have refreshed her recollection with the statement and, therefore, was privileged from disclosure. We do not think it is important that the witness did not use the statement to refresh her memory or that it was not independent 'evidence because the statement was used only for impeachment. The plaintiff relies on Lehan v. Chicago & N. W. R. Co. (1919), 169 Wis. 327, 172 N. W. 787. However, recently this court has modified the rule announced in the Lehan Case without deciding the exact extent of immunity from disclosure afforded to the “work product of the lawyer.”

The problem generally arises because of the enlarged scope of sec. 326.12, Stats., allowing discovery examination of persons who are not parties to the action. In State ex rel. Reynolds v. Circuit Court (1961), 15 Wis. (2d) 311, 112 N. W. (2d) 686, 113 N. W. (2d) 537, we dealt with the problem of privileged communication and work product and pointed out that pretrial discovery under sec. 326.12 might be used to reach certain information or relevant opinions formed by an expert witness. In Jacobi v. Podevels (1964), 23 Wis. (2d) 152, 127 N. W. (2d) 73, we held a statement given by an assured to his insurance carrier at a time when no action had been commenced or was imminent was not an attorney’s work product or a confidential communication and overruled the Wojciechowski Case in respect to the confidentiality of such a statement by an insured to his insurer. In Merlino v. Mutual Service Casualty Ins. Co. (1964), 23 Wis. (2d) 571, 127 N. W. (2d) 741, we held that where opposing counsel had obtained the production of and used a witness’ prior written statement for impeachment purposes, it was not error for the court not to admit the entire statement in evidence at-the. request of counsel who had produced the statement. In the footnote in the opinion, the court cited Kurz v. Collins (1959), 6 Wis. (2d) 538, 95 N. W. (2d) 365, and the Jacobi Case for the proposition that opposing counsel had a right to the production of the witness’ prior written statement for impeachment purposes. The facts of these cases, however, did not involve an attorney’s work product but statements given to an insurance company by their insured.

The work-product-of-a-lawyer concept had its origin in Hickman v. Taylor (1947), 329 U. S. 495, 67 Sup. Ct. 385, 91 L. Ed. 451, which dealt with an interpretation of Rule 26 of the Federal Rules of Civil Procedure for the taking of depositions of persons not a party to the action. The Hickman Case held that the federal rule did not contemplate compelling an attorney to produce his work product which included written statements by witnesses because such an attempt fell “outside the arena of discovery and contravenes the public policy underlying the orderly prosecution and defense of legal claims.” The court pointed out the immunity was not without limitations.

Most of the cases have dealt with work product in relation to pretrial discovery and the policy reasons for protecting a lawyer’s work product at that time are not so compelling as to require its protection at the trial. One must distinguish the case of a prior written statement given by a witness to counsel in the course of his preparation for trial and communications given in an attorney-client relationship which privilege extends throughout the trial. Only a few cases have been found, and they are based on a more restrictive discovery statute than ours, which allow the immunity of a lawyer’s work product to exist after the commencement of trial in respect to prior statements of a witness. See Anno. Discovery—Statements of Witnesses, 73 A. L. R. (2d) 12. We hold the immunity of the attorney’s work product in respect to a written statement ceases to exist when the person making the statement is placed on the stand as a witness at the trial. By becoming a witness the person subjects himself to the risks of impeachment and the attorney has had the benefit of his work product.

The plaintiff contends it was error to admit in evidence statements relating to the speed of the plaintiff on his bicycle. Several witnesses as well as the plaintiff and defendant testified the plaintiff was going “fast” or “very fast.” At the request of the plaintiff the court gave an instruction to the effect that such terms had little probative value. The question here presented is not how much probative value such terms have but whether the testimony is incompetent and inadmissible as evidence. Plaintiffs rely on Ronning v. State (1924), 184 Wis. 651, 200 N. W. 394. In that case the court indicated such evidence was incompetent and said the statements of speed of an automobile in such terms as “fast,” “real fast,” “slow,” or “real slow” could only be persuasive when comparison was made with other vehicles whose speed is known. The case was distinguished in Gerbing v. McDonald (1930), 201 Wis. 214, 229 N. W. 860, where it was held that terms of “fast” or “real fast” and that “it was speeding along,” although indefinite as to the speed of a motor vehicle, were not incompetent notwithstanding their lack of precision.

In Merkle v. Behl (1955), 269 Wis. 432, 69 N. W. (2d) 459, we held the testimony of “pretty fast for just starting up” was sufficient to sustain a finding of negligence of excessive speed where there was also testimony the tires squealed and the engine raced. In respect to the speed of a seven and one-half-year-old boy on a bicycle chasing another child down a somewhat inclined alley, we believe that although the characterizations “fast” and “pretty fast” are indefinite expressions and relative they are of sufficient probative value as not to be incompetent. Normally, people do not judge bicycle speed in terms of miles per hour and it would be unreasonable to require it. Certainly “fast” or “very fast” in reference to a 20-inch bicycle ridden by a seven and one-half-year-old boy conveys a rate of speed which the same terms would not convey in respect to an adult riding a motorcycle or driving in a car on a highway. These expressions of speed are competent and are as definite as the statutory definition of reasonable and prudent speed in sec. 346.57 (2), Stats., prohibiting the driver of a vehicle from proceeding “at a speed greater than is reasonable and prudent under the conditions and having regard for the actual and potential hazards then existing.” See Anno. Admissibility and probative effect of testimony that motor vehicle was going “fast” or the like, 92 A. L. R. (2d) 1391.

At the trial a police officer testified on cross-examination that when he arrived at the scene a few minutes after the accident he saw a car parked four to six feet south of the alley on the east side of North Stowell avenue. On redirect, he testified he had no direct knowledge whether the car was parked at that location at the time of the accident but the defendant pointed out the car to him as having been there at the time of the accident. This testimony, it is argued, should have been stricken on the ground the officer could not testify as to the location of the car at the time of the accident. As we read the testimony the police officer did not testify the car was there at the time of the accident. The location of the car at the time of his arrival was within his personal knowledge and testimony to that effect was admissible. Jacobson v. Bryan (1944), 244 Wis. 359, 12 N. W. (2d) 789. This testimony does not fall within the rule of Smith v. Rural Mut. Ins. Co. (1963), 20 Wis. (2d) 592, 123 N. W. (2d) 496, where we held a police officer could not testify to any facts in a traffic report excepting those based upon his own personal knowledge.

At the time of the accident the defendant had a fellow student with him as a passenger. At the time of the trial the passenger was in military service and stationed in New Jersey. Neither he nor his testimony was produced at the trial by the defendant. The trial court refused the request of the plaintiff to instruct the jury as to the inference which might be drawn from the failure of the defendant to produce the witness or his testimony. The inference of unfavorable tenor of the evidence which may arise from the failure of a party to call a material witness applies to those situations where the party has control of the witness or whom it would be more natural for such a party to call than the opposing party. Feldstein v. Harrington (1958), 4 Wis. (2d) 380, 90 N. W. (2d) 566; also Lubner v. Peerless Ins. Co. (1963), 19 Wis. (2d) 364, 120 N. W. (2d) 54; 20 Am. Jur., Evidence, p. 188, sec. 183; 2 Wigmore, Evidence (3d ed.), p. 162, sec. 285. We think a satisfactory explanation appears in the fact the passenger was in the armed forces and was stationed in New Jersey outside the jurisdiction at the time of trial. Certainly the defendant had no control over his fellow student and could not require his return to Wisconsin. As to the failure to produce his testimony, we cannot say it is more natural or reasonable for the defendant to take a deposition in New Jersey than it would be for the plaintiff who had the burden of proof to establish the defendant’s negligence. Not every failure to produce evidence indicates the tenor the absent evidence would be unfavorable to that party’s cause. There must be a reasonable relationship between the failure to produce the evidence and the inference to make the inference permissible and grounded in fact.

As the last assigned error it is contended the trial court should not have instructed the jury in respect to the plaintiff that a violation of a safety statute amounts to negligence. It is argued that since the plaintiff was a child of some seven and one-half years he could not be held negligent as a matter of law regardless of whether a statutory violation was involved or not. It is admitted the plaintiff was in violation of sec. 346.18 (4), Stats., because in entering the street from the alley he failed to yield the right-of-way to the approaching defendant motorist on the highway. We think the contention that a child riding a bicycle may not be negligent as a matter of law was settled adversely to the plaintiff in Miller v. Keller (1953), 263 Wis. 509, 57 N. W. (2d) 711. In that case the minor, ten years old and in fifth grade, had a passenger on the back of his bicycle. It was held he was negligent as a matter of law because he violated sec. 85.39 (1) (now sec. 346.92 (1), Stats.), which is a safety statute, prohibiting driving a vehicle when any person is upon any portion thereof not designed or intended for the use of passengers. The legal effect of a violation of a safety statute is visited upon adults and minors alike and there is no limiting or conditional application to a child of seven and one-half years. Plaintiff cannot complain that the court did not hold him negligent as a matter of law rather than submitting the question to the jury. The plaintiff certainly was not prejudiced by the submission of this question.

Since the trial court did not err in the trial of this case, the verdict should stand and judgment entered thereon. This requires a reversal of the order granting a new trial.

By the Court. — Order reversed.

Beilfuss, J.

(dissenting in part). I respectfully dissent from that part of the majority opinion which holds, “the immunity of the attorney’s work product in respect to a written ,v statement ceases to exist when the person making the statement is placed on the stand as a witness at the trial.”

In Hickman v. Taylor (1947), 329 U. S. 495, 510, 67 Sup. Ct. 385, 91 L. Ed. 451, cited by the majority, it is stated, persuasively:

“Historically, a lawyer is an officer of the court and is bound to work for the advancement of justice while faithfully protecting the rightful interests of his clients. In performing his various duties, however, it is essential that a lawyer work with a certain degree of privacy, free from unnecessary intrusion by opposing parties and their counsel. Proper preparation of a client’s case demands that he assemble information, sift what he considers to be the relevant from the irrelevant facts, prepare his legal theories and plan his strategy without undue and needless interference. That is the historical and the necessary way in which lawyers act within the framework of our system of jurisprudence to promote justice and to protect their clients’ interests. This work is reflected, of course, in interviews, statements, memo-randa, correspondence, briefs, mental impressions, personal beliefs, and countless other tangible and intangible ways— aptly though roughly termed by the Circuit Court of Appeals in this case as the ‘work product of the lawyer.’ Were such materials open to opposing counsel on mere demand, much of what is now put down in writing would remain unwritten. An attorney’s thoughts, heretofore inviolate, would not be his own. Inefficiency, unfairness and sharp practices would inevitably develop in the giving of legal advice and in the preparation of cases for trial. The effect on the legal profession would be demoralizing. And the interests of the clients and the cause of justice would be poorly served.”

I do not criticize the cases, cited in the majority opinion, upon their facts, dealing with latitude of pretrial discovery.

The trial of an action is not the same as pretrial discovery. The credibility of the witness and the integrity of counsel are matters constantly before the trier of the fact, be it a jury or a judge.

To require counsel in the presence of a jury upon demand to produce a part of his work product may place a trial attorney in a most difficult dilemma. The use and the nature of material taken from his file by the opposing counsel might well, in some instances, require an explanation by counsel in response to his obligation to his own client. But before he takes the stand to offer necessary explanation he finds himself confronted with Canon 19 of the Canons of Ethics, which provides:

“19. Appearance of Lawyer as Witness For His Client. When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.”

Not only does the canon criticize this practice but so has this court in several cases, some of which are cited in the footnote below.

In Roys v. First National Bank (1924), 183 Wis. 10, 21, 197 N. W. 237, we stated:

“This rule is not to be followed simply because the American Bar Association has adopted it, but with better reason because it states ethical considerations that may appeal to every lawyer as sound. A lawyer has a retainer— as a witness he is not entitled to such. He will find it hard to disassociate his relation to his client as a lawyer and his relation to the party as a witness. This case bears witness of that fact.”

I would hold the statement of the witness taken by an attorney is a part of his work product and as such is privileged and not subject to demand to produce. This rule would not be unduly restrictive upon the opposing party — for impeachment purposes he still has his traditional right of cross-examination including prior inconsistent statements, written or oral, made to persons other than opposing counsel.

       This case was followed in Bell v. Milwaukee Electric Railway & Light Co. (1919), 169 Wis. 408, 172 N. W. 791; Kellner v. Christiansen (1919), 169 Wis. 390, 172 N. W. 796; and Wojciechowski v. Baron (1957), 274 Wis. 364, 80 N. W. (2d) 434.

        Zeidler v. State (1926), 189 Wis. 44, 206 N. W. 872; Baumgartner v. State (1929), 198 Wis. 180, 223 N. W. 419, 224 N. W. 474; Borger v. McKeith (1929), 198 Wis. 315, 224 N. W. 102; Interior Woodwork Co. v. Buhler (1932), 207 Wis. 1, 238 N. W. 822; Estate of Weinert (1962), 18 Wis. (2d) 33, 117 N. W. (2d) 685; Mack Truchs, Inc., v. Sunde (1963), 19 Wis. (2d) 129, 119 N. W. (2d) 321.


author: Goedon, J.

text:
    Ketterer and another, Appellants, v. Maerker and another, Respondents.

      October 4

    November 2, 1965.

      For the appellants there was a brief by Eisenberg & Kletzke, attorneys, and Edwin A. Star of counsel, all of Milwaukee, and oral argument by Sydney Eisenberg.

    For the respondents there was a brief by Arnold, Murray & O’Neill, attorneys, and James P. O’Neill of counsel, all of Milwaukee, and oral argument by James P, O’Neill.
   Goedon, J.

It is urged upon this appeal that the jury’s award of damages was inadequate and that this court should order a new trial with an option to the defendants for an additur. Parchia v. Parchia (1964), 24 Wis. (2d) 659, 130 N. W. (2d) 205; Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393.

The jury’s evaluation of Mrs. Ketterer’s injuries at $600 would not be sustainable if her ailments were all attributable to the accident in question. The record shows that Dr. Roger H. Crane had been treating Mrs. Ketterer for eighteen months before the accident and offered testimony as to the nature of her prior complaints. Dr. Crane expressed the view that the collision aggravated her arthritis; however, a contrary opinion was given by Dr. Harry B. Sadoff, who testified that trauma is not a causal factor in degenerative arthritis and also that trauma does not aggravate osteoarthritis.

As a result of the conflicting medical evidence, the jury was entitled to believe that much of Mrs. Ketterer’s discomfort and disability was chargeable to a pre-existing condition. This would also apply to her husband’s claim for medical expenses. Podoll v. Smith (1960), 11 Wis. (2d) 583, 106 N. W. (2d) 332. We cannot disagree with the trial court’s observation that “the amounts allowed by the jury were within its province, under the evidence.” In Wendel v. Little (1961), 15 Wis. (2d) 52, 58, 112 N. W. (2d) 172, we said:

“Inadequate damages by themselves do not establish perversity. Gustafson v. Engelman (1951), 259 Wis. 446, 49 N. W. (2d) 410. The trial court held that the damages were supported by the evidence and weight should be given to its opinion. Mossak v. Pfost (1950), 258 Wis. 73, 44 N. W. (2d) 922.”

With reference to a loss of wages or of earning capacity, the record establishes that Mrs. Ketterer was not employed at the time of the accident and had not worked for several years prior thereto. While there is evidence that Mrs. Ketterer entertained an intention to return to her former employment, this remained very speculative, and the trial court, under such circumstances, was not obliged to submit a a question concerning earnings to the jury. Puhl v. Milwaukee Automobile Ins. Co. (1959), 8 Wis. (2d) 343, 350, 99 N. W. (2d) 163.

At oral argument, the appellants’ counsel contended that Mrs. Ketterer did not receive a fair and impartial trial because of such conduct as the “hollering” of the respondents’ counsel and the hostility exhibited by the trial judge. This issue was not specifically presented in motions after verdict to the trial court and was not even raised in the briefs submitted upon this appeal. Accordingly, the appellants are not entitled to our review of this question as a matter of right. Plesko v. Allied Investment Co. (1961), 12 Wis. (2d) 168, 107 N. W. (2d) 201; Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 80 N. W. (2d) 380. However, we have nevertheless scrutinized the record to determine the merits of this argument. Our review is somewhat limited since, obviously, the written report does not reflect the decibels used. We must conclude from the record that this contention on the part of the appellants has not been established.

By the Court. — Judgment affirmed.


author: Wilkie, J.

text:
    City of Madison, Respondent, v. Walker, Appellant.

      October 4

    November 2, 1965.

      For the appellant there was a'brief by Stephens, Bieber-stein, Cooper, Bruemmer & Gartzke, and oral argument by John L. Bruemmer and Bruce Craig, all of Madison.
    For the respondent there was a brief by Edwin C. Conrad, city attorney, and David Pappas, assistant city attorney, and oral argument by Mr. Pappas.

   Wilkie, J.

The sole issue presented on this appeal is the same as was before the circuit court, i.e., was the finding of the trial court against the great weight and clear preponderance of the evidence. The facts are these: Appellant had a tooth removed by his dentist, Dr. Robert Linn, in October of 1963, and took triacetyloleandomycin (TAO) capsules four times a day for nine days to prevent infection. His jaw became infected early in 1964 and on March 3d, Dr. Linn again prescribed four TAO capsules a day. Appellant took three capsules that day and four on March 4th, Sth, and 6th.

Appellant testified that he worked on March 7th and had a sandwich, coffee, and a bottle of beer for lunch at about 1:30 p. m. After spending the afternoon at home, he went for supper at Nick’s restaurant on State street in Madison. He arrived at about 7:30 and had a 12-oz. beer, a sandwich, and coffee. He took his third TAO capsule at that time, and had three or four more beers before leaving at 9. Nick Chris-takos, the proprietor, substantiated appellant’s story and testified that the appellant acted normally and gave no indications of being under the influence of alcohol. After leaving the restaurant, appellant entered his car to drive home. The next thing he remembered was waking up in the city jail about midnight.

Shortly after 9, a policeman, Clifton Finger, observed appellant’s car on a safety island at the intersection of Wisconsin avenue and Mifflin street on Madison’s capitol square. He testified that the car backed off the island and proceeded up Wisconsin avenue for two blocks, at a speed of about 10 miles an hour. At this point, Finger signalled appellant to pull his car over to the curb. Appellant obliged. Finger and Officer John Riley, who responded to the former’s call for assistance, testified that appellant was unable to locate his driver’s license, had difficulty in unfolding a piece of paper which was in his wallet, spoke deliberately and in an impaired manner, could not perform four tests given to drivers suspected of being intoxicated (heel and toe, balance, coin retrieval, and finger to nose), and fell down on one occasion. Appellant was taken to the Madison police station where he had continued difficulty with the heel-toe and coin-retrieval tests and fell down once again. A breathalyzer test, given by Lieutenant Wilson, indicated that appellant had .21 percent by weight of alcohol in his bloodstream. All three police officers testified that they could smell alcohol on appellant’s breath and further that they considered appellant to be intoxicated.

There was testimony by an expert witness, Dr. David Gil-boe, that TAO could impair the liver function, that a person taking TAO could experience symptoms similar to alcoholic intoxication, that TAO and alcohol act independently of each other, and that a man of appellant’s size with normal liver function, taking four or five bottles of beer over a two-hour period, would test approximately .075 percent and .104 percent weight of alcohol in the blood respectively. Appellant points to the disparity between these calculations and the results of the breathalyzer in suggesting, in effect, that the machine was unreliable. In essence, he contends that his conduct was really not due to the beer but to a liver malfunction brought on by the drug, and that under these circumstances, he could not be convicted under the Madison ordinance.

Appellant’s position is untenable for several reasons:

First, the evidence simply does not bear out the contention that the breathalyzer reading was inaccurate. The city chemist testified that he checked the machine February 4th and March 11th, only four days after appellant was tested, and found it to be functioning properly. In addition, Lieutenant Wilson was certain that he had faithfully followed the prescribed 17-step procedure in administering the test. Second, the trial court could have believed that the breathalyzer reading and the officers’ testimony disproved appellant’s claim of only consuming four or five beers. Third, although there was testimony concerning the effect TAO could have on an individual’s liver, there was no evidence that appellant in fact was ever so afflicted. Thus, the trial court was free to conclude that although the expert testimony was sound, it was not entitled to any weight in this particular case.

In short, the evidence is overwhelming in support of the finding by the trial court that the appellant was guilty of driving under the influence of intoxicants.

Even if appellant’s state was drug induced, and not traceable in any degree to the beer, he nevertheless could have been convicted under the Madison ordinance which also makes it unlawful to operate a motor vehicle under the influence of a dangerous drug such as the TAO prescribed for and used by the appellant.

In his opinion the circuit court said that the trial court had the right to rely on the breathalyzer test and to place great weight on it in finding the appellant guilty of driving under the influence of liquor. The circuit court’s judgment affirmed the trial court’s finding to this effect. He also ruled that, even under the view of the evidence most favorable to appellant — that his condition was due to the drug — he was also guilty of violating the ordinance. The judgment of affirmance was silent on this ground for conviction. Appellant contends that the circuit court may have changed or modified the basis for the conviction. There was no modification in the basis for conviction because of what the circuit court stated in his decision, but even if there were it would be of no account on this appeal since on review-this court looks to the findings of the trial court (v. the circuit court) to determine if they are contrary to the evidence. In any event the circuit court made it crystal clear that the trial court’s finding of driving under the influence of liquor could not be reversed.

Appellant also asks for a new trial on the grounds that the real controversy has not been tried and because there has been a miscarriage of justice. The record discloses that appellant has been afforded his day in court and there are no extenuating circumstances present which would dictate a second trial.

By the Court. — Judgment affirmed.

        Madison v. Geier (1965), 27 Wis. (2d) 687, 135 N. W. (2d) 761.

       Madison Ordinance 12.64 “(1) It is unlawful for any of the following to operate a motor vehicle:
      “(a) A person who is under the influence of an intoxicant or under the influence of a dangerous or narcotic drug. . . .”

       Madison Ordinance 12.64 (3) provides: “In this section, 'dangerous drug’ means any drug enumerated in section 151.07, Wisconsin Statutes.” Sec 151.07 (1) (a), Stats., in turn, provides: “‘Dangerous drug’ means any drug or drug-containing preparation, the original container of which bears the statement ‘Caution — federal law prohibits dispensing without prescription’ and . . . .”

        Supra, footnote 1.


author: Beilfuss, J.

text:
    Hilboldt, d/b/a Charles S. Hilboldt Investment Real Estate, Appellant, v. Wisconsin Real Estate Brokers’ Board, Respondent.

      October 4

    November 2, 1965.

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

    For the respondent the cause was argued by Robert J. Vergeront, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.

       Motion for rehearing denied, without costs, on January 4, 1966.

   Beilfuss, J.

The issue, broadly stated, is: Does the evidence, as it appears in the record, sufficiently support the findings of the Wisconsin Real Estate Brokers’ Board so as to justify a revocation of the appellant’s real-estate broker’s license ?

Ch. 136, Stats., Real Estate Brokers’ Board, is a regulatory legislative enactment, under the police power, designed, primarily, to protect the interest of the general public. The history, as set out by the early cases, reveals that prior to the enactment of these regulatory statutes unscrupulous persons dealt in the buying and selling of real estate either for themselves or others in an unethical and fraudulent manner to such an extent that regulation, for the protection of the general public, became necessary.

The statutes, as they now exist, provide that one cannot act as a real-estate agent, broker, or salesman unless he has a license issued to him by the state through the Real Estate Brokers’ Board. Before a license can be issued the applicant must meet established qualifications as to education, knowledge of real-estate law, and ethical character. The statute further charges the board with the responsibility of suspending or revoking a license when the holder has violated statutory standards.

The statutory sections under which the board acted in this instance are as follows:

“136.08 (2) The board may also on its own motion, or upon complaint in writing, duly signed and verified by the complainant, and upon not less than 10 days’ notice to the broker or salesman, suspend any broker’s or salesman’s license or registration if it has reason to believe, and may revoke such license or registration as provided hereafter, if it finds that the holder of such license or registration has:
“(b) Made any substantial misrepresentation with reference to a transaction injurious to a seller or purchaser wherein he acts as agent; . . .
“(h) Failed, within a reasonable time, to account for or remit any moneys coming into his possession which belong to another person;
“(i) Demonstrated untrustworthiness or incompetency to act as a broker, salesman or cemetery salesman in such manner as to safeguard the interests of the public; . . .
“(k) Been guilty of any other conduct, whether of the same or different character from that specified herein, which constitutes improper, fraudulent or dishonest dealing; . . .”

Hilboldt contends that evidence before the board is insufficient to permit a finding that he, as a real-estate broker, acted as agent for the purchaser, Family Service.

The scope of judicial review of the board’s findings of fact is controlled by sec. 227.20 (1) (d), Stats., which authorizes a reviewing court to reverse or modify an administrative-agency decision if substantial rights of the aggrieved party have been prejudiced as a result of administrative findings being unsupported by substantial evidence in view of the entire record as submitted. The credibility of the witnesses and the weight, to be attached to the reasonableness of the evidence as a whole remains with the agency.

Without again detailing the evidentiary facts, we have no hesitancy in concluding that the findings of the board are supported by substantial evidence in view of the entire record. A finding that the representatives of Family Service understood that Hilboldt, as a real-estate broker, would act as their agent to procure suitable real estate for Family Service, and that Hilboldt agreed to act in that capacity is amply supported by a review of all the material evidence in the record before us.

Hilboldt next contends that even though there is a finding that as a real-estate broker he orally agreed to act as an agent for the purchase of land, as a matter of law, such agreement is void. In support of this contention he cites sec. 240.10, Stats. This statute provides, in part:

“Every contract to pay a commission to a real estate agent or broker or to any other person for selling or buying real estate . . . shall be void unless such contract or note or memorandum thereof describing such real estate, expressing the price for which the same may be sold or purchased, or terms of rental, the commission to be paid and the period during which the agent or broker shall procure a buyer or seller or tenant, be in writing and be subscribed by the person agreeing to pay such commission.”

Otto v. Black Eagle Oil Co. (1954), 266 Wis. 215, 63 N. W. (2d) 47, and other cases are cited as authority for the contention that the agreement to retain Hilboldt as an agent is void because it was not in writing.

We cannot accept this contention. In all of the cases cited by Hilboldt, the broker was attempting to collect a commission based in whole or in part upon, an oral contract. The words of the statute are: “Every contract to pay a commission to a real estate agent or broker . . . shall be void unless such contract ... be in writing.”

This court has specifically held in Krzysko v. Gaudynski (1932), 207 Wis. 608, 242 N. W. 186, that real-estate brokers can become agents for some purposes without a written contract. At page 614 it is stated:

“Whether the defendant can be held as a constructive trustee as an agent depends on whether his contract of agency, not being in writing and not in conformity with sec. 240.10, should be considered as wholly void and imposing no duty whatsoever upon him. Appellants contend it should be so construed. Sec. 240.10, however, does not require that such a construction be placed upon it. Its declaration is not that a contract of agency, but a contract ‘to pay a commission' is void unless in writing. The purpose of the statute was not to relieve real-estate agents from their obligations as agents, but to protect the public against frauds perpetrated by dishonest agents through falsely claiming oral contracts of agency when another agent effected a sale by which the landowner was subjected to claims for commission by two or more agents, and by falsely claiming agency and claiming a commission for procuring a purchaser when no bona fide purchaser was in fact procured. One may become an agent without compensation. Absence of compensation is immaterial. Wright v. Smith, 23 N. J. Eq. 106, 111. If a real-estate agent actually agrees orally to purchase land for another and takes money from the other to make the first payment on the purchase price, he must be held to have assumed to act for the other. And having assumed so to act, he should be held to the same obligations of duty as if he were acting under a contract binding the other party to pay him a compensation. . . .”

The Krzysko Case has not been overruled and we reaffirm the rule stated therein.

The concern of ch. 136, Stats., and the Wisconsin Real Estate Brokers’ Board goes beyond a consideration of the right of brokers or agents to collect a commission for services rendered. The entire scope of the activities of a real-estate broker or salesman when he deals as an agent for other persons in his capacity as a real-estate broker or agent are matters which come within the scrutiny of the board when it appears or is suggested that the broker or agent is acting inconsistent with standards set forth in sec. 136.08 (2).

In Sphatt v. Roth (1948), 253 Wis. 339, 346, 34 N. W. (2d) 222, the court said:

“It is the rule in this state that where a broker is authorized to sell his principal's property that for him to purchase it himself he is bound, due to the relationship of principal and agent, by additional and greater obligations and duties than are required in ordinary business transactions between buyer and seller [cases cited]; and that a broker can neither purchase from, nor sell to, his principal unless the latter expressly assents thereto or, with full knowledge of all the facts and circumstances acquiesces in such a course. [Cases cited.]”

In Pederson v. Johnson (1919), 169 Wis. 320, 326, 172 N. W. 723, the court said:

“An agent may not take advantage of the confidential relationship existing between himself and his principal for his own benefit even though the principal is not injured thereby. [Cases cited.]”

And at page 324, it is stated:

“No principle in the law of agency is better settled than that the agent may not deal in the business of his agency for his own benefit. All profits made and advantage gained by the agent in the execution of the agency belong to the principal, and it matters not whether such profit or advantage is the result of the performance or of the violation of a duty of the agency if it be the fruit of the agency. All profits and every advantage beyond lawful compensation made by an agent in the business, or by dealing or speculating with the effects of his principal, though in violation of his duty as an agent, and though the loss, if one had occurred, would have fallen on the agent, will, wherever they can be regarded as the fruit or outgrowth of the agency, be deemed to have been acquired for the benefit of the principal. . . .”

In Ahern v. Florida Real Estate Comm. (1942), 149 Fla. 706, 709, 6 So. (2d) 857, it is stated:

“The real estate business has become a highly specialized one and the real estate broker is now the confidant of the public in much the same manner as the lawyer and the banker. His relation to the public exacts the highest degree of trust and confidence and the law imposes on appellees [the Commission] the duty of enforcing its standards.”

Family Service clearly wanted to purchase real estate. Hilboldt was contacted in the first instance because he was a real-estate broker. When he undertook the task of obtaining real estate for it under the circumstances described in the record he became an agent in his capacity as a real-estate broker. As such agent he subjected himself to the fiduciary duties of an agent, and to the statutory standards of business conduct prescribed by sec. 136.08 (2), Stats.

Affixing additional revenue stamps to the Schmid-Kreiter deeds could be only for the purpose of misrepresenting the actual purchase price or concealing it from his principal. It could not have been done to influence anyone other than Family Service. To say he expended his own funds for unnecessary revenue stamps without any purpose is incredible.

The conclusions of the board that Hilboldt made a substantial misrepresentation by placing additional revenue stamps on the Schmid-Kreiter deeds, and that he failed to disclose a $15,000 profit to his principal, demonstrated un-trustworthiness to act as a broker in such a manner as to safeguard the interest of the public, and that Hilboldt was guilty of conduct which constitutes improper or dishonest conduct in violation of sec. 136.08 (2), Stats., are based upon ample and substantial credible evidence in view of the entire record and must be affirmed.

A discretionary reversal under sec. 251.09, Stats., is urged by Hilboldt upon the ground that the real controversy has not been tried. We find no merit to this contention.

Hilboldt’s final argument is that the board’s order or revocation is void upon its face because the order does not set forth the period during which a new license would not be granted.

The order of the board is as follows:

“WHEREFORE, IT IS ORDERED that the real estate broker’s license of Charles S. Hilboldt d/b/a Charles Hil-boldt Investment Real Estate for the year 1964 be and the same is hereby revoked.
“Dated at Janesville, Wisconsin, this 13th day of August, 1964.”

Secs. 136.05, 136.06, and 136.07, Stats., provide the procedure for making applications for new and renewal licenses, set forth the qualifications, and fix the time of expiration of such licenses. Real-estate brokers’ licenses are issued on an annual calendar-year basis.

“136.07 Licenses. (1) Expiration. A license issued by the board entitles the holder:
“(a) To act as a real estate broker or salesman, as the case may be, up to and including December 31 following issuance of the license.”

Sec. 136.08 (2), Stats., set forth above, authorizes revocation by the board but does not provide for any time limitation as to the period of revocation.

Hilboldt relies upon sec. 136.14, Stats., which provides:

“Ineligibility. No license or registration shall be issued to any person whose license or registration has been revoked until the expiration of a period not to exceed 2 years from the date the revocation became finally effective, the period to be determined in each case by the board.”

The board revoked Hilboldt’s license then currently in force for the year 1964. Without any action of the board that license would expire December 31, 1964, and the holder would be required to make application for a 1965 license as a prerequisite to do business as a real-estate broker.

The statute relied upon by Hilboldt (sec. 136.14) has nothing to do with the board’s determination to revoke a license ; it simply limits the period in which a new license can issue in the event a new application is made.

The order of the board revoking the license for the year 1964 is valid.

By the Court. — Judgment affirmed.

       This statute has been considered and interpreted by this court in several recent cases, including Green Bay & W. R. Co. v. Public Service Comm. (1955), 269 Wis. 178, 68 N. W. (2d) 828; Copland v. Department of Taxation (1962), 16 Wis. (2d) 543, 553-555, 114 N. W. (2d) 858; Pabst v. Department of Taxation (1963), 19 Wis. (2d) 313, 323, 120 N. W. (2d) 77; and Silverberg v. Industrial Comm. (1964), 24 Wis. (2d) 144, 154, 128 N. W. (2d) 674.

         Hale v. Kreisel (1927), 194 Wis. 271, 215 N. W. 227; Leuch v. Campbell (1947), 250 Wis. 272, 26 N. W. (2d) 538; and Gifford v. Straub (1920), 172 Wis. 396, 400, 179 N. W. 600.


author: PIeffernan, J. Per Curiam

text:
    Wiegand and wife, Respondents, v. Gissal and wife, Appellants.

      October 4

    November 2, 1965.

      For the appellants there were briefs by Paul Binsak, attorney, and Gerald A. Flanagan of counsel, both of Milwaukee, and oral argument by Mr. Binsak.

    For the respondents there was a brief by Niebler & Herro, attorneys, and Chester J. Niebler of counsel, all of Milwaukee, and oral argument by Chester J. Niebler.

       Motion for rehearing denied, without costs, on January 4, 1966.

   PIeffernan, J.

The first question to be decided is whether the description of the property is so inadequate as to be void under the statute of frauds. The statute (sec. 240.08, Stats.) provides:

“Contract for lease or sale to be in writing. Every contract for the leasing for a longer period than one year or for the sale of any lands or any interest in lands shall be void unless the contract or some note or memorandum thereof, expressing the consideration, be in writing and be subscribed by the party by whom the lease or sale is to be made or by his lawfully authorized agent.”

In order to satisfy the statute of frauds we have uniformly held that the memorandum or contract must describe with reasonable certainty the property to which it relates.

We have held that for a description to be adequate that memorandum cannot merely describe the buildings to be conveyed, but must also describe the land that accompanies these buildings. Stuesser v. Ebel, supra.

The property covered by the option is described in section 17 of the lease. But the description, with the exception of that in regard to a 10-foot easement to the lake, is limited to referring to the buildings:

“. . . the tavern building, the two-family apartment adjacent to the rear of said tavern building, the picnic grounds to the East, the ball grounds to the West . . . .”

This description on its face is uncertain and insufficient, particularly where the pleadings, as here, show the seller owns more contiguous land than is being conveyed. While it can be conceded that we can identify the buildings described, there is no way of knowing the extent of the land areas surrounding them. The landlord, when directed to survey the land to be conveyed, submitted five separate surveys showing each building as an island, surrounded only with a bare minimum of adjoining land area. We agree with the trial judge that the survey was ridiculous, but it does point out the complete inadequacy of .the description and the lack of any metes and bounds. While the tenant has submitted a plat showing what reasonable men may have intended, the area that the tenant insists should be conveyed is not so described in the option clause of the lease.

The question is not what reasonable men intended to convey but what they in fact described in the contract or memorandum.

We have allowed extrinsic evidence to be admitted for the purpose of satisfying the statute of frauds if the description itself furnishes some foundation, link, or key to the oral or extrinsic testimony which identifies the property. Stuesser v. Ebel, supra. In the instant case no link appears in the description, nor in fact has any oral or extrinsic testimony been offered to show precisely what was intended. The tenant refers to an iron pipe and a line sighted with a gate marker. Had these boundary markers been referred to in the description, they might have constituted the necessary link or connection between the description and identifying data. Under the state of the record, however, there is no intimation that the iron stake had any relevance to the intended conveyance.

We conclude that this case is governed by Stuesser v. Ebel, supra, and Thiel v. Jahns (1947), 252 Wis. 27, 30 N. W. (2d) 189. In the Thiel Case, we held inadequate a description where the agreement was to sell the “house at Little Chicago.” It appeared in the record that the seller not only owned a house enclosed by a fence but also additional land adjacent to it. The court concluded that the description did not sufficiently describe the property to be conveyed with the house. The court stated:

“. . . ‘house’ could include the inclosed lawn and garden or even less than that or that it could include the balance of the acreage.” Thiel v. Jahns, supra, at page 30.

We are faced with precisely the same situation in the instant case. The divergence of the descriptions proposed by the seller and buyer make it clear that the extent of the land to be conveyed is a matter of pure speculation. Stuesser v. Ebel, supra, poses a similar situation. There the contract described the property as, “the real estate owned by the Sellers and located in the Town of Oak Grove, now known as the ‘Dobie Inn’ and used in the business of the Sellers.” This court stated, “Dobie Inn describes a tavern but not the boundaries of the land.”

We conclude, therefore, that the description in this option to purchase, which merely referred to buildings by names and to some of the tracts of land by descriptions as to their use but did not otherwise define their boundaries, was insufficient under the statute of frauds, when the pleadings make it clear that they are a part of a larger tract of land owned by the seller.

The tenant, however, claims that the doctrine of part performance is sufficient to take the defective agreement out of the operation of the statute of frauds. We conclude, however, that the facts that the tenant relies upon are not sufficient to satisfy any of the defects covered by the statute of frauds. To constitute part performance, the facts that the party demanding specific performance must rely upon are required to be exclusively referable to the contract. Kelly v. Sullivan (1947), 252 Wis. 52, 30 N. W. (2d) 209. Here the tenant relies upon the fact that he was in possession of the premises, that he was operating a tavern licensed for a period that extended beyond the termination date of the lease, that valuable fixtures were installed by the tenant, and that valuable tavern equipment had been purchased by the tenant from the landlord. These facts are not exclusively referable to the exercise of the option to purchase. They are equally referable to his occupancy of the premises as a tenant, and in fact all of the factual data that tenant relies upon to invoke the doctrine of part performance are specifically provided for in the lease agreement and explainable by it. We have said in Blanchard v. McDougal (1858), 6 Wis. 165, 168 (*167, *169):

“ ‘So if the vendee be a tenant in possession, under the vendor, for his possession, is properly referable to his tenancy, and not to the contract.’ ”

49 Am. Jur., Statute of Frauds, p. 746, sec. 440, states the general rule:

“. . . possession as tenant pending a final agreement of purchase will not be treated as amounting to part performance.”

It is clear that the doctrine of part performance is not available to the tenant to take the contract out of the operation of the statute of frauds.

We have, in some cases, allowed “the defaulting vendee the right, with some limitation, to recover so much of his down payment as he could show amounted to unjust enrichment of the seller.” Stuesser v. Ebel, supra, page 597. The tenant in his brief claims that holding this contract to be void would deprive him of the $10,200 in rental payments which were to be credited as a down payment. The record is barren of any evidence that this rent was excessive. There is no evidence that it would be inequitable for the landlord to retain the sums paid as rent.

By the Court. — Judgment and order reversed, with directions to enter judgment for the defendant.

The following memorandum was filed January 4, 1966.

Per Curiam

(on motion for rehearing). There are two statements contained in the foregoing opinion which are claimed by the respondents to be inaccurate.

In the opinion, it is asserted: “The parties stipulated that no facts were in dispute. . . .” Upon rehearing, the respondents deny that there was such a stipulation, and their position on this is correct. However, both sides moved for summary judgment; it would appear that there were no factual issues in dispute. In his memorandum opinion, the trial judge declared:

“All of the parties involved take the position that there is no question of fact involved.and that the issues are questions of law for the Court to determine on the motions for summary judgment.”

In their original brief, in this court, the respondents specifically argued that the defendants were not entitled “to complain that the court should have considered factual issues.” This, in our opinion, constitutes an acknowledgment by the respondents that the trial court was entirely correct in its assertion “that there is no question of fact involved.” While we were technically in error in referring to a “stipulation,” the practical effect of the bilateral summary judgment motions was the equivalent of a stipulation as to the facts.

The opinion of the court also stated that the rental payments made during the term of the lease were to be credited in favor of the tenant in the event of a purchase. The respondents charge that this statement is erroneous since only a portion of the rental payments was to be so credited. The respondents’ position is literally correct, but the point is not deemed material to the merits of the cause.

Motion for rehearing denied without costs.

       See Stuesser v. Ebel (1963), 19 Wis. (2d) 591, 593, 120 N. W. (2d) 679; Restatement, 1 Contracts, p. 278, sec. 207; 37 C. J. S., Frauds, Statute of, p. 669, sec. 184; Harney v. Burhans (1895), 91 Wis. 348, 349, 64 N. W. 1031; Thiel v. Jahns (1947), 252 Wis. 27, 30 N. W. (2d) 189; Kelly v. Sullivan (1947), 252 Wis. 52, 30 N. W. (2d) 209.