text:
    Koczka, Respondent, v. Hardware Dealers Mutual Fire Insurance Company, Appellant.

      December 1, 1965

    January 4, 1966.

      For the appellant there was a brief and oral argument by Ronald L. Piette of Milwaukee.
    For the respondent there was a brief by Grata & Shneidman and Donald C. PavelecJc, all of Milwaukee, and oral argument by Mr. Paveleek.

   Gordon, J.

We have concluded that the learned trial court erred when it granted a directed verdict in favor of the plaintiff.

The evidence must be considered in a light most favorable to the party against whom the verdict was directed. Our review of the evidence convinces us that the evidence was not so clear and convincing as to have permitted impartial minds to have come to but one conclusion. The foregoing are the recognized standards to be used in determining whether a directed verdict should be granted. Tanberg v. Rydberg (1965), 26 Wis. (2d) 91, 94, 95, 131 N. W. (2d) 858; Anderson v. Joint School Dist. (1964), 24 Wis. (2d) 580, 583, 584, 129 N. W. (2d) 545, 130 N. W. (2d) 105; Schlueter v. Grady (1963), 20 Wis. (2d) 546, 552, 553, 123 N. W. (2d) 458; Gilson v. Drees Brothers (1963), 19 Wis. (2d) 252, 254, 255, 120 N. W. (2d) 63.

In scrutinizing the record, we find that there was evidence offered by the plaintiff which, if believed by the jury, would warrant a determination in favor of the plaintiff; however, this record also contains a sufficient challenge to the plaintiff’s case so as to have foreclosed the court’s directing a verdict in favor of the plaintiff. The testimony of the defendant’s medical witness, when construed in a light favorable to the defendant, adequately raised a factual issue for the jury. Dr. Ansfield testified that six to 10 wa.s the usual effective number of treatments and that in excess of 20 treatments would not be necessary except under extraordinary circumstances.

It is true that Dr. Ansfield declined to condemn in express terms the number of treatments given to Mr. Koczka by Dr. Salinsky. Nevertheless, the fair import of Dr. Ansfield’s testimony was to put in issue, as a factual matter, the necessity for all the medical expenses in the instant case. Heuer v. Heuer (1959), 7 Wis. (2d) 208, 213, 96 N. W. (2d) 485; Wadoz v. United National Indemnity Co. (1957), 274 Wis. 383, 391, 80 N. W. (2d) 262.

Dr. Salinsky was unwilling to classify Mr. Koczka’s case as more or less serious than the average, but he explained the necessity for having given 45 infrared treatments by pointing out that his patient did sign-painting work which required his head to be held in a rigid position, thus aggravating the injury. While Dr. Ansfield acknowledged that this could have aggravated the pain, he stated that it would not call for further heat treatment.

There is another basis for our conclusion that there was a factual dispute which should not have been resolved by a directed verdict. Dr. Salinsky acknowledged that his treatments were continued over a period of four months because his patient subjectively claimed that he had continuing discomfort. It follows, therefore, that whether the treatments were necessary depends in large measure upon the good faith of Mr. Koczka. In light of Dr. Ansfield’s testimony, it would have been within the province of the jury to have considered Mr. Koczka’s credibility. If the jurors believed that Mr. Koczka were malingering and that Dr. Salinsky’s treatments were rendered in part as a result of such bad faith on the part of the patient, it would necessarily follow that all of the treatments were not “necessary” under the terms of this insurance policy.

The trial court having directed a verdict without submitting the issue to the jury, there will have to be a new trial. A new trial may have been averted had the trial court adopted the recommendation which this court has made in a number of cases. In Rasmussen v. Garthus (1961), 12 Wis. (2d) 203, 209, 107 N. W. (2d) 264, we stated:

“. . trial courts would do well to reserve decisions on motions for a directed verdict, at least in many instances, until after the issues have been submitted to the jury. Often the jury, by its findings, will effectually resolve the motion and in other instances it may save a new trial.”
We more recently repeated this suggestion in Schiller v. Keuffel & Esser Co. (1963), 21 Wis. (2d) 545, 554, 124 N. W. (2d) 646, where we quoted the following from Davis v. Skille (1961), 12 Wis. (2d) 482, 490, 107 N. W. (2d) 458:
“ Tt is to be regretted that the circuit court did not reserve its ruling on the motion for directed verdict until after the jury had returned its special verdict. By so doing, even though the court after the return of the verdict did see fit to have granted the motion, there would now be no necessity of granting a new trial. We do not advocate that such procedure invariably be followed, but in close cases we deem it to be preferable.’ ”

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


source: Caselaw Access Project

author: Beilfuss, J.

license: Public Domain

text:
    Village of Elmwood Park and another, Appellants, v. City of Racine and others, Respondents.

      December 1, 1965

    January 4, 1966.

      For the appellants there was a brief by William E. Dye of Racine, for the village of Elmwood Park; and Benson, Butchart & Haley of Racine, for the town of Mt. Pleasant; and oral argument by Mr. Dye and Mr. Emery B. Benson.

    For the respondents there was a brief by Jack Harvey, city attorney, and Louis J. Roshar, assistant city attorney, for the city of Racine, John R. Brown, and Evelyn M. Brown; and Richard F. Foltz of Racine, for the village of Sturtevant; and oral argument by Mr. Harvey.

   Beilfuss, J.

The trial judge, Judge Elmer D. Good-land, filed a comprehensive, scholarly, and helpful memorandum opinion. He concluded that annexation and consolidation were separate and distinct statutory procedures intended to apply to dissimilar factual situations and that annexation was not intended by the legislature to encompass consolidation.

The dispute before us arises by virtue of conflicting interpretations of the consolidation and annexation statutes.

The legislature in its 1959 session made substantial changes in the statutory law governing the overall problem of municipal incorporation and urban expansion. A dominant change was a legislative recognition that many localities of the state were experiencing a substantial urban growth and that the existing legislation permitted haphazard, unrealistic, and competitive expansion without regard for present and probable future development in the best overall public interest. The consolidation statute, sec. 66.02, was amended to provide for a determination by the director of the planning function of the department of resource development as to whether the proposed consolidation would be in the public interest, subject to review by the circuit court. Sec. 66.021, Stats., the principal annexation statute, was amended to provide for substantially the same public-interest determinations.

The legislature, in the same 1959 session, enacted sec. 66.024, Stats., as a new alternative annexation statute without a public-interest determination requirement. An attempt was made to amend the section to provide for a similar public-interest determination; this proposed amendment passed one house of the legislature and lost in the other and therefore did not become a part of sec. 66.024.

The petition for annexation in this proceeding is under sec. 66.024, Stats.

The pertinent parts of the consolidation statute and the alternative annexation statutes are as follows:

Sec. 66.02 provides:
“Consolidation. Any town, village or city may be consolidated with a contiguous town, village or city, by ordinance, passed by a two-thirds vote of all the members of each board or council, fixing the terms of the consolidation and ratified by the electors at a referendum held in each municipality. The ballots shall bear the words, ‘for consolidation,’ and ‘against consolidation,’ and if a majority of the votes east thereon in each municipality shall be for consolidation, the ordinances shall then be in effect and have the force of a contract. The ordinance and the result of the referendum shall be certified as provided in s. 66.018(5) ; if a town the certification shall be preserved as provided in ss. 60.05 and 66.018 (5), respectively. Consolidation shall not affect the pre-existing rights or liabilities of any municipality and actions thereon may be commenced or completed as though no consolidation had been effected. Any consolidation ordinance proposing the consolidation of a town and another municipality shall, within 10 days after its adoption and prior to its submission to the voters for ratification at a referendum, be submitted to the circuit court and director of the planning function in the department of resource development for a determination whether such proposed consolidation is in the public interest. The circuit court shall determine whether the proposed ordinance meets the formal requirements of this section and shall then refer the matter to the director of the planning function in the department of resource development, who shall find as prescribed in s. 66.014 whether the proposed consolidation is in the public interest in accordance with the standards in s. 66.016. The director’s findings shall have the same status as incorporation findings under ss. 66.014 to 66.019.”
Sec. 66.024 provides:
“Annexation by referendum; court order. As a complete alternative to any other annexation procedure, unincorporated territory which contains electors and is contiguous to a city or village may be annexed thereto in the manner hereafter provided. The definitions in s. 66.021 (1) shall apply to this section.
“(1) Procedure for Annexation, (a) The governing body of the city or village to which it is proposed to annex territory shall, by resolution adopted by two-thirds of the members-elect, declare its intention to apply to the circuit court for an order for an annexation referendum, and shall publish the resolution once in a newspaper having general circulation in the area proposed to be annexed, and shall cause to be made a scale map of such territory showing it in relation to the annexing city or village. The resolution shall contain a description of the territory to be affected, sufficiently accurate to determine its location, the name of the municipalities directly affected and the name and post-office address of the municipal official causing the resolution to be published. The person who causes the resolution to be published shall serve a copy of the resolution together with the scale map upon the clerk of the town or towns from which the territory is to be detached within 5 days of the date of publication of the resolution. Such service may be either by personal service or by registered mail and if by registered mail an affidavit must be on file with the annexing body indicating the date said resolution was mailed. The annexation shall be deemed commenced upon publication of the resolution.
“ (b) Application to the circuit court shall be by petition subscribed by the officers designated by the governing body, and shall have attached as a part thereof: the scale map, a certified copy of the resolution of the governing body and an affidavit of the publication and filing required under par. (a). Such petition shall be filed in the circuit court not less than 30 days but no more than 45 days after the publication of the notice of intention.
“(2) Protest to Court by Electors; Hearing, (a) If prior to the date set for hearing upon such application, there is filed with the court a petition signed by a majority of the electors residing in the territory or the owners of more than one-half of the real property in assessed value in such territory, protesting against the annexation of such territory, the court shall deny the application for an annexation referendum.
“(b) If a petition protesting the annexation is found insufficient the court shall proceed to hear all parties interested for or against the application. The court may in its discretion adjourn such hearing from time to time, direct a survey to be made and refer any question for examination and report thereon. Any town whose territory is involved in the proposed annexation shall, upon application, be a party and entitled to be heard on any matter pertaining thereto.
“(4) Referendum Election; When Ordered and Held. (a) If the court, after such hearing, is satisfied as to the correctness of the description of the territory or any survey and that the provisions of this section have been complied with, it shall make an order so declaring and shall direct a referendum election within the territory which shall be described in the order, on the question, whether such area should be annexed. Such order shall direct 3 electors named therein residing in the town in which the territory proposed to be annexed lies, to perform the duties of inspectors of election.”

The trial court concluded that there was a significant statutory distinction between consolidation and annexation as recognized by the court in several cases and that the merging of territory as contemplated in this proceeding was not annexation but consolidation, and invalid because not in conformity with the consolidation statute.

We recognize that Elmwood Park and Mt. Pleasant could have proceeded under the consolidation statute (sec. 66.02) in their attempt to merge into one municipality. Because consolidation procedure was available to them it does not follow that the alternative, annexation, was not proper for the same purpose.

The introductory portion of sec. 66.024, Stats., is most unequivocal — “As a complete alternative to any other annexation procedure, unincorporated territory which contains electors and is contiguous to a city or village may be annexed thereto in the manner hereafter provided.” (Emphasis added.)

The town of Mt. Pleasant is unincorporated; it does contain electors and is contiguous to the village of Elm-wood Park. The statute contains no limitation as to size, nor does it prohibit annexation of an entire unincorporated area. We conclude that Elmwood Park could annex the entire town of Mt. Pleasant under sec. 66.024, Stats., if the proceeding otherwise complied with the statute and the case law dealing with annexation.

The trial court further concluded that if a sec. 66.024, Stats., annexation was a statutorily permissible proceeding that the common-law rule of reason applied and that under the facts as they appear in the record the proposed annexation was unreasonable and that the petition should be dismissed. We agree.

In support of this conclusion the trial court in its memorandum opinion stated:

“ ‘This court has authority to review the annexation of territory to a city or village and apply the test of reason.’ Town of Fond du Lac v. City of Fond du Lac, 22 Wis. (2d) 533, 541 (1963) ; Town of Mt. Pleasant v. City of Racine, 24 Wis. (2d) 41, 45 (1964).
“ ‘In this state we apply a rule of reason.’ Town of Brookfield v. City of Brookfield, 274 Wis. 638, 644 (1956).
“The rule of reason is firmly established in the Case Law of Wisconsin. See Fenton v. Ryan, 140 Wis. 253 (1909) ; Incorporation of Village of Biron, 146 Wis. 444 (1911); Wilson v. Sheboygan, 230 Wis. 483 (1939); Greenfield v. Milwaukee, 273 Wis. 484 (1956); Town of Brookfield v. City of Brookfield, 274 Wis. 638 (1956) ; Town of Fond du Lac v. City of Fond du Lac, 22 Wis. (2d) 533 (1963) ; Town of Mt. Pleasant v. City of Racine, 24 Wis. (2d) 41 (1964).
“In reaching a determination as to whether the proposed annexation meets the test of reason, the annexation in its entirety should be considered.
“ ‘And the question of reasonableness is one on the entirety of the attempted annexation, so that an annexation cannot necessarily be said to have had a reasonable basis merely because a sound reason may exist for taking in some particular part of the territory.’ City of Sugar Creek v. Standard Oil Company, 163 F. (2d) 320, 324 (8 Cir. 1947).
“We are convinced Elmwood has no reasonable basis to annex Mount Pleasant. It is clear that there is no present need, or any reasonably expectable future needs, based upon the rate of growth of Elmwood, that would reasonably justify Elmwood annexing-35.64 square miles of territory, to-wit, the entire town of Mount Pleasant.
“ ‘As we appreciate the matter, the rule of reason with respect to the enlargement of boundaries of a municipal corporation, may be satisfied by the establishment of a number of factors, among which we note, by way of illustration, a substantial increase in population; a need for additional area for construction of homes, mercantile, manufacturing or industrial establishments; a need for additional land area to accommodate the present or reasonably anticipated future growth of the municipality; the extension of police, fire, sanitary protection or other municipal services to substantial numbers of residents of adjacent areas.’ Nix v. Village of Castor, 116 So. (2d) 99, 101 (La. 1959).
“Furthermore, there is a complete lack of any ‘overflow’ growth of the village occurring beyond its boundaries.
“ ‘There is nothing to show any “overflow” from Oli-vette, residential or industrial. The selection of the site for this industrial development was made because of its independent advantages, and had nothing to do with the City of Olivette. And it is apparent that the very high land values existing in the area for industrial purposes have had nothing whatever to do with the proximity of Olivette. The present state of the “area” certainly does not represent an expansion or “actual growth” of Olivette.’ City of Olivette v. Graeler, 369 SW (2d) 85, 93 (Mo. 1963).
“We concur with the following statement by counsel for the objectors, contained in their brief:
“ ‘The Village of Elmwood Park has no present need to annex any additional territory. Nor has it shown any imminent future need. Based upon its present size, character and past growth history it will have no need for additional land for another ten to twenty years. Thus, any annexation by the village at this time is unreasonable, there being no reasonable need.’
“We are convinced that the proposed annexation serves no reasonably necessary municipal uses and purposes, that it violates the rule of reason, and is therefore null and void.”

This court has applied the rule of reason to annexations after the 1959 amendments but not in a case involving sec. 66.024, Stats. Town of Fond du Lac v. City of Fond du Lac (1964), 22 Wis. (2d) 533, 126 N. W. (2d) 201; Mt. Pleasant v. Racine (1964), 24 Wis. (2d) 41, 127 N. W. (2d) 757.

Under the familiar rule of statutory construction, the legislature is presumed to know that the court does apply the rule of reason in annexation cases.

The fact that the legislature did not include a requirement for a determination of public interest in sec. 66.024, Stats., does not mean that the rule of reason does not apply to an annexation proceeding under this statute. While the standards for a public-interest determination set forth in secs. 66.02 and 66.021 are compatible with the rule of reason they are not contrary to nor antagonistic to the basis for the rule of reason. There is nothing in sec. 66.024 to indicate the legislature intended to abrogate the rule of reason. If the rule of reason was good law prior to the 1959 amendments and the court continued to apply it to sec. 66.021 after the amendment requiring such determination, there is no sufficient reason advanced to convince us that it should not apply to a statute (sec. 66.024) which by its literal letter does not specifically require a public-interest determination. Sec. 66.024 as it now stands is much the same, in this regard, as sec. 66.021 was at the time the court imposed the rule of reason.

The trial court found, and appellants do not dispute, that Elmwood Park had no reasonable basis to annex Mt. Pleasant, there being no present need or demonstrable future need for that territory. Without a showing of some reasonable need, the proceeding, in legal parlance, is arbitrary and capricious, and contrary to the rule of reason. The petition for an annexation referendum must be dismissed.

By the Court. — Judgment affirmed.

        Milwaukee v. Sewerage Comm. (1954), 268 Wis. 342, 67 N. W. (2d) 624; Brown Deer v. Milwaukee (1957), 2 Wis. (2d) 441, 86 N. W. (2d) 487; unpublished opinion of Hon. E. M. Duquaine, Circuit Judge for Brown county in In re Annexation of Town of Preble to City of Green Bay (1960).


author: Currie, C. J.

text:
    State ex rel. Stollberg, Appellant, v. Crittenden, Respondent.

      December 2, 1965

    January 4, 1966.

      For the appellant there was a brief by Bronson C. La Follette, attorney general, and Robert P. Russell, corporation counsel of Milwaukee county, and Patrick J. Foster, assistant corporation counsel, and oral argument by Mr. Foster.

    For the respondent there was a brief by Edioard R. Cameron and Alvin L. Zelonky, both of Milwaukee, and oral argument by Mr. Cameron.

   Currie, C. J.

Counsel for relator raise the following contentions on this appeal:

(1) There is no credible evidence which in any reasonable view supports the jury verdict.

(2) Defendant’s counsel engaged in improper cross-examination and made improper remarks in the presence of the jury which were prejudicial and require a new trial if this court does not determine that the evidence requires a judgment that defendant is the father of the child.

(3) A new trial should be granted in the interest of justice if relator does not prevail with respect to either of the foregoing two contentions.

Credible Evidence to Sustain Verdict.

The child, a boy, was born September 16, 1964, and weighed seven pounds seven ounces. Eelator’s last menstrual period before the child’s birth commenced December 14, 1963, and lasted approximately five days.

Relator and defendant became acquainted at “Bennie’s” tavern in Milwaukee where defendant was working as a bartender. Defendant had commenced work as a bartender in the month of November, 1963, and testified he noticed that relator frequented the bar three or four times a week. He testified relator always remained until closing time and then left with other men.

On the night of December 22d, after the bar closed, defendant took relator home for the first time. Both parties testified they engaged in intercourse that first night they were together. Their relationship continued through the remainder of December and the month of January and involved further engagements in intercourse.

There was no testimony that relator had intercourse with other men during the period of probable conception, but defendant testified that relator often left the bar with other men after closing time, and named three and a possible fourth. Relator admitted that during this period she had been “taken home” by two of the men named by defendant on different occasions after the bar had closed.

Relator contends that these instances when she was taken home after the bar closed were not “dates” with the men involved, and she did not in fact “go out” with them. However, relator also did not consider that her first night out with defendant was a “date,” yet they engaged in sexual intercourse on that first night.

Counsel for relator contend that there was no credible evidence to support the jury’s verdict that defendant was not the father of the child. This contention is based on defendant’s admission that he had intercourse with relator during the conception period and the fact that there was no direct contradiction of relator’s testimony that she did not have intercourse with any other men during this period. Defendant, on the other hand, maintains that there was evidence from which the jury could draw a reasonable inference that relator had intercourse with men other than defendant during the conception period. Our review of the record satisfies us that the jury could draw such an inference from the evidence herein-before reviewed.

The jury probably considered highly significant the fact that relator had intercourse with defendant the very first night he took her home from the tavern. It would not be unreasonable for the jury to conclude that the same result probably occurred when other men took her home from the tavern during the conception period. The evidence does not suggest that relator and defendant were engaged in any love affair that distinguished their relationship from that which might have existed between her and the other men who took her home from the tavern.

Counsel for relator stress the fact that her testimony, that she did not have intercourse with any men other than defendant during the conception period, was not directly controverted. However, the jury were the judges of her credibility and were not required to accept her testimony as true. As was stated in State ex rel. Kurtz v. Knutson:

“In illegitimacy proceedings the testimony of the complaining witness that she had timely intercourse with the defendant and that she had none with anyone else is sufficient to support a verdict that the defendant is the father of her child, if the jury believed it. Wille v. State ex rel. Kessler, 192 Wis. 224, 212 N. W. 260; State v. Willing, 259 Wis. 395, 48 N. W. (2d) 236.” (Emphasis supplied.)

We conclude that there was credible evidence which reasonably supports the jury’s verdict.

Alleged Misconduct by Defendants Counsel.

The trial court considered that the possible date of conception lay somewhere between November 18, 1963, and January 17, 1964, and that any act of sexual intercourse by relator prior to November 18, 1963, was immaterial. Accordingly the trial court sustained objections to all questions propounded by defendant’s counsel which sought to establish that relator had had sexual intercourse prior to that date.

Counsel for relator contend that defendant’s attorney engaged in prejudicial improper conduct in repeatedly asking questions on cross-examination which had to do with relator’s conduct prior to November 18, 1963, after the trial court had sustained objections to this line of questioning. It is further contended that defendant’s counsel was guilty of prejudicial misconduct when he stated in the presence of the jury:

“I can establish a pattern of conduct that this woman pursued prior to November 17th that would leave me or give the jury the inference that she was of loose moral character.”

Relator’s counsel, beyond objecting to questions put by defendant’s counsel, did not call the trial court’s attention to any alleged misconduct on the latter’s part which called for corrective action by the court. Nor did relator’s counsel make any motion for mistrial. By failing to move for a mistrial prior to the case being submitted to the jury, counsel for relator waived any right to assert prejudice later.

There is another reason why counsel for relator are precluded from now predicating error on conduct of opposing counsel. This is that it was not alleged as a ground for new trial in the motions after verdict. Errors which the trial court might correct by granting a new trial must be brought to the attention of that court before they will be reviewable as a matter of right on appeal.

New Trial in the Interest of Justice.

This court declines to exercise its discretionary power under sec. 251.09, Stats., and direct a new trial in the interest of justice because our reading of the record does not convince us that justice probably miscarried.

By the Court. — Judgment affirmed.

        Heuer v. Heuer (1959), 7 Wis. (2d) 208, 213, 96 N. W. (2d) 485; Estate of Brandenburg (1961), 13 Wis. (2d) 217, 225, 108 N. W. (2d) 374.

       (1958), 5 Wis. (2d) 609, 611, 93 N. W. (2d) 348; quoted with approval in State ex rel. Kapusta v. Weir (1960), 12 Wis. (2d) 96, 99, 106 N. W. (2d) 292; and State ex rel. Sarnowski v. Fox (1963), 19 Wis. (2d) 68, 70, 119 N. W. (2d) 451.

        Kink v. Combs (1965), 28 Wis. (2d) 65, 72, 135 N. W. (2d) 789, and cases cited.

        Withers v. Tucker (1965), 28 Wis. (2d) 82, 87, 135 N. W. (2d) 776; Dombeck v. Chicago, M., St. P. & P. R. Co. (1964), 24 Wis. (2d) 420, 430, 129 N. W. (2d) 185.

         State ex rel. Burns v. Vernon (1965), 26 Wis. (2d) 563, 569, 133 N. W. (2d) 292.


text:
    Risdon, Inc., Appellant, v. Miller Distributing Company, Inc., Respondent.

      December 2, 1965

    January 4, 1966.

      For the appellant there was a brief and oral argument by Rex M. Smith of Antigo.

      For the respondent there was a brief by Genrich, Terwilliger, Wakeen, Piehler & Conway, attorneys, and Richard J. Weber of counsel, all of Wausau, and oral argument by Mr. Weber.

   Beilfuss, J.

The principal issue is, Did Vanderberg have apparent authority to bind Miller for the purchase price of the fourth order?

The trial court found that Vanderberg had express authority to make the first three purchases from Risdon. Miller does not contest this finding, in fact prior to litigation he readily acknowledged liability for these purchases and paid for them in the regular course of business.

The fourth order is in dispute. Risdon claims Vander-berg had apparent authority to act for Miller and that Miller is liable for the entire disputed order. Miller claims that Vanderberg was not an agent and had no authority, express or apparent, to bind Miller to any part of the disputed order.

The trial court held Miller was estopped to deny the agency of Vanderberg and was entitled to recover that portion of the disputed order dealing with 100,-pound burlap bags and twine and that Miller was not indebted to Risdon for the 50- and 25-pound paper bags.

The liability of Miller must rest upon the apparent authority of Vanderberg to act for Miller.

The trial court found that the relationship between Miller and Vanderberg was that of an independent contractor by virtue of the written agreement between them and a disclaimer of liability by Miller in the contract. Aside from the fact that the contract specifically allowed Vanderberg to purchase materials and supplies to be paid for by Miller and deducted from Miller’s share, Risdon was unaware of the limitations of the contract.

An independent contractor can become an apparent agent, with or without authority, if he reasonably appears to third persons to be authorized to act as an agent of another.

In Hansche v. A. J. Conroy, Inc. (1936), 222 Wis. 553, 559-561, 269 N. W. 309, the court, in considering a like problem, stated:

“Respondent seeks to hold appellant liable on the basis of apparent agency. This brings us to consideration as to what is meant by apparent authority. The rule applicable here is thus stated in 1 Restatement, Agency, p. 25, sec. 8:
“ ‘Apparent authority is the power of an apparent agent to affect the legal relations of an apparent principal with respect to a third person by acts done in accordance with such principal’s manifestations of consent to such third person that such agent shall act as his agent.
“ ‘Comment: a. An apparent agent is a person who, whether or not authorized, reasonably appears to third persons, because of the manifestations of another, to be authorized to act as agent for such other. An apparent principal is the person for whom an apparent agent purports to act. The apparent agent may have authority which is coextensive with his apparent authority; he may be authorized to act in other ways but not in the way as to which he has apparent authority; or he may not be authorized to act in any respect for the purported principal. If the authority and the apparent authority are coextensive, the liability of the principal resulting from conduct of the agent may be based upon either authority or apparent authority.
“ ‘6. The manifestation that another is to act as agent may be made to the community in general, by advertisements or otherwise. Apparent authority, however, exists only with respect to a person to whom such a manifestation has been made or to whom knowledge of it comes.’
“Three elements are necessary to establish apparent agency: (1) Acts by the agent or principal justifying belief in the agency. (2) Knowledge thereof by the party sought to be held (in the present case, appellant). (3) Reliance thereon by the plaintiff, consistent with ordinary care and prudence. Domasek v. Kluck, 113 Wis. 336, 339, 89 N. W. 139.
“In Commonwealth Telephone Co. v. Paley, 203 Wis. 447, 233 N. W. 619, the court said:
“ ‘It is the rule that a person dealing with an agent known to be acting for a principal must at his peril ascertain the extent and nature of the agent’s authority. . . . Boelter v. Hilton, 194 Wis. 1, 215 N. W. 436; Pluto Powder Co. v. Cuba City State Bank, 153 Wis. 324, 141 N. W. 220. However, this rule is to be read in connection with another rule stated in McDermott v. Jackson, 97 Wis. 64, 72 N. W. 375, quoted approvingly in Voell v. Klein, 184 Wis. 620, 622, 200 N. W. 364, that “If a third person, because of appearances for which the principal was responsible, believes and has reasonable ground to believe that the agent possessed power to act for the principal in the particular transaction, if such third person was, in the exercise of reasonable prudence, justified in believing that the agent possessed the necessary authority, then the principal is responsible to such third person the same as if the agent possessed all the power he assumed to possess.” ’ ”

On three ■ separate occasions, prior to the disputed transaction, orders were placed with Risdon in the name of Miller for supplies needed in the Miller-Vanderberg operation. Each of these orders was placed with Miller’s express authority. The invoices were sent addressed to Miller. Two of the invoices were paid by Miller promptly and without question or indication as to limitations on Vanderberg’s authority. These acts, by or on behalf of Miller, gave the appearance that Vanderberg possessed the authority to make purchases for supplies as claimed by Vanderberg when he talked with Risdon.

Payment by Miller is practically conclusive evidence that Miller knew Vanderberg was purchasing supplies from Risdon.

As to the reasonable reliance of the apparent authority by Risdon, the record reveals that Vanderberg told Risdon that he would be making purchases for Miller in connection with the Spring Green operation and that they would be paid for by Miller. Risdon knew Miller had a good reputation and, by virtue of newspaper articles and common trade talk, believed Miller had a financial interest in the Spring Green operation. The first two orders placed by Vanderberg were promptly paid by Miller. Miller in no way indicated to Risdon any limitation of Vander-berg’s authority and Risdon made no specific inquiries of Miller as to the extent of Vanderberg’s authority. Based upon this evidence the trial court concluded that Miller was estopped to deny liability for that portion of the disputed fourth order dealing with 100-pound burlap bags and twine. Implicit in estoppel is reasonable reliance. We cannot say this finding is against the great weight and clear preponderance of the evidence.

The trial court found that there was reasonable reliance by Risdon as to the burlap bags and twine but not as to the paper bags.

The disputed transaction was a single order for various items. The only difference between this order and the three preceding orders was that the fourth order called for paper bags in addition to burlap bags and that the order was substantially larger. There is no evidence that paper bags are associated with a specialty in the potato business or that they are not generally used in potato marketing. It would seem that Risdon exercised the same care or lack of care with respect to each item of the fourth order and that if Vanderberg had apparent authority to order 100-pound burlap bags he had equal authority to order 50- and 25-pound paper bags.

We conclude that the trial court’s inconsistent finding and conclusion is based upon an erroneous finding of fact.

The trial judge (without the benefit of a written transcript as we have) in his memorandum opinion, mistakenly found:

“. . . The Plaintiff’s President had been in the business of supplying various merchandise to potatoe brokers for a number of years and testified that he knew the operation at Spring Green wherein Miller and Vanderberg were concerned was a specialized operation whereby the potatoes would be sold in 100 pound bags to potatoe chip companies.”

We have carefully searched the entire transcript of the testimony as it appears in the record and do not find that Risdon testified or that he knew of the specialized operation at Spring Green where the potatoes would be sold only in 100-pound bags. This testimony was given at the trial by Miller in his description of the Spring Green operation. There is no evidence that Risdon knew of this limitation and the finding of fact to that effect must be set aside. Without this finding of fact we find nothing to indicate that Risdon, in the exercise of reasonable care, should have been alerted to an absence of apparent authority as to any of the specific items in the disputed order.

This is one of the hard cases where the law must determine which of two innocent persons must bear the burden of a third person’s wrongful act.

It is clear that Mr. Miller tried to limit the authority of Vanderberg and liability for his acts. Miller’s insistence on prior written requisitions is unquestionably a good business practice. He could have protected himself by requiring acknowledgment by the seller, Risdon, of these requisitions or by advising Risdon that a written requisition was necessary.

Upon the record before us we conclude that Risdon, because of the appearances for which Miller was responsible, believed and had reasonable ground to believe that Vanderberg possessed authority to act for Miller in the disputed transaction and that Miller is liable to Risdon for the entire purchase price of the fourth order.

Because we hold that Risdon should recover as prayed for in his complaint in the amount of $735.42, together with interest thereon and the costs of the action, we do not discuss his assigned evidentiary errors.

By the Court. — Judgment to be modified consistent with the opinion and, as modified, affirmed. Costs to the appellant.


author: Hallows, J.

text:
    Perry Creek Cranberry Corporation, Respondent, v. Hopkins Agricultural Chemical Company, Appellant.

      December 2, 1965

    January 4, 1966.

      For the appellant there was a brief by W. L. Jackman and Hart, Kraege, Jackman & Wightman, all of Madison, and oral argument by W. L. Jackman.

    For the respondent there was a brief by Brazeom, Brazeau, Potter & Cole of Wisconsin Rapids, and oral argument by John M. Potter.

   Hallows, J.

The plaintiff is the owner of a 36.80-acre cranberry marsh near Black River Falls, Wisconsin, and on June 6 and 9, 1962, dusted 34.02 acres with three percent Malathion Dust which it purchased from the defendant. Within a week the cranberry vines showed damage and ultimately produced no cranberries, while 2.78 acres which were not dusted with the malathion produced a normal crop of cranberries.

The complaint alleged two causes of action, one based on a misbranding under the Economic Poisons Act (sec. 94.676, Stats.), because the plaintiff relied on the instructions on the label in using the Malathion Dust and as a result suffered damage to its cranberry vines; and the other grounded upon common-law negligence that the defendant knew or should have known the application of the Malathion Dust would be harmful to cranberry vines if applied to the vines when they were wet and consequently should have warned against such use. The answer of the defendant denied misbranding within the meaning of the Economic Poisons Act, the malathion was a cause of the damage, it was negligent and its negligence was the cause of the damage, and alleged a disclaimer.

The jury in its verdict found the malathion caused the damage to the plaintiff’s 1962 cranberry crop and the defendant was negligent in failing to warn of the possible injury to cranberry vines if the powder was used on vines when they were wet, and determined the amount of damages in the sum of $24,000. On motions after verdict the trial court held the Economic Poisons Act protected vegetation from damage, the defendant had misbranded its product and such violation of the act was negligence per se. The court also held the jury’s finding that malathion caused the damage was supported by sufficient credible evidence, that the plaintiff relied on the misbranding and as a matter of law such reliance together with the finding of the jury was causal and, lastly, the disclaimer on the label was invalid.

The defendant raises several issues on this appeal but we do not need to consider those related to common-law negligence because of our view that sec. 94.676 (4), Stats., was violated by the defendant, which violation was a cause of the plaintiff’s damages. The defendant argues without merit, we think, that the Economic Poisons Act does not require labeling either in form of directions for use or as a warning designed to protect vegetation upon which the insecticide is used. It is the defendant’s alternative position that at most the act only requires instructions for use which are reasonably necessary for effective results and warnings against only potential hazards known or those which should be known.

That at the time the malathion was delivered to the plaintiff in 50-pound paper bags there was attached to each bag a label (Exhibit 9), part of which is as follows:

“CAUTION:
“Harmful if swallowed. Avoid prolonged breathing of dust. Avoid prolonged or repeated contact with skin. Wash thoroughly after using. Avoid contamination of feed and foodstuffs. Keep out of reach of children.
“DIRECTIONS FOR USE
“Cranberries: For the control of leaf hoppers and black-headed fireworms, use 65-70 lbs. of Hopkins 3% Malathion Dust per acre by airplane, or 45-55 lbs. per acre by ground equipment. Make thorough coverage applications. Apply as frequently as necessary to keep insects under control. Do not use within 3 days of harvest.
“NOTICE
“Seller makes no warranty of any kind, express or implied, concerning the use of this product. Buyer assumes all risk of use or handling whether in accordance with directions or not.”

An “economic poison” is defined in sec. 94.67 (1) (a), Stats., as “Any substance or mixture of substances labeled, designed or intended for use in preventing, destroying, repelling or mitigating any insects, rodents, predatory animals, fungi, nematodes, weeds, and other forms of plant or animal life or viruses which the department declares a pest.” Sec. 94.676 defines “misbranded,” among other things as “(4) If the labeling does not contain instructions for use which are necessary for effective results and which, if complied with, are adequate for the protection of the user and public; (5) If the label does not contain a warning or caution statement which, if complied with, is adequate to prevent injury to man and vertebrate animals.”

In construing a statute the court “must ascertain the legislative intention as disclosed by the language of the statute in relation to its scope, history, context, subject matter, and the object intended to be remedied or accomplished.” Scanlon v. Menasha (1962), 16 Wis. (2d) 437, 442, 114 N. W. (2d) 791. The general rule is to give all words and phrases their common and approved usage excepting technical words and phrases which have a peculiar meaning in the law. Sec. 990.01 (1), Stats. Nekoosa-Edwards Paper Co. v. Public Service Comm. (1959), 8 Wis. (2d) 582, 99 N. W. (2d) 821. The main emphasis in the construction of sec. 94.676 by both parties is upon the legislative history of the act in relation to the federal Economic Poisons Act. It is without dispute the Wisconsin act was taken and drafted from the proposed Economic Poisons Act prepared by the Wisconsin Committee on Agriculture and modeled after the federal act. On the one hand, it is argued all that the drafting attempted to do was to shorten the proposed Economic Poisons Act without any substantial change in content and, on the other hand, it is argued the changes made were substantial and show a different intention than that expressed in the federal act.

The purpose and scope of the Wisconsin act were to extend protection from economic poison, we believe, beyond that afforded by the common law. It is pointed out that prior to the act the consumers were not properly protected under Wisconsin law because many economic poisons were highly toxic to man and dangerous to plants, to animals, and to public health and safety. Wisconsin Legislative Council Reports, Agricultural, Vol. 2, part 1, 1950-1951, pp. 53, 57, see. 2.

The Federal Insecticides Act, 7 USCA, secs. 135-135k, which was enacted in 1947, provides for a label containing instructions for use and a warning. The act also provides there is a misbranding if the insecticide is used in accordance with instructions or with common practice and injury results to man, vertebrate animals or vegetation other than weeds to which it is applied or to the person applying the poison. By sec. 135 (z) (2) (c) an economic poison is misbranded if the label does not contain directions for use which are necessary and adequate for the protection of the public. This subsection should be read with subs. 135 (z) (2) (g) which provides that in case of an insecticide when used as directed or in accordance with common practice it must not be injurious to vegetation and other objects when applied to them. Under the federal act subs. 135 (z) (2) (d) a label must contain a warning which is necessary and adequate to prevent injury to man, animals and vegetation, but in view of subs, (z) (2) (g) that subsection would seem to apply to situations other than when the poison is used in accordance with the instructions or common practice. But see McClanahan v. California Spray-Chemical Corp. (1953), 194 Va. 842, 75 S. E. (2d) 712.

These three sections were combined into two sections in the Wisconsin act with some slight modifications. The Wisconsin act provides for a label with more detailed instructions and also a warning. Sec. 94.676 (4) of the Wisconsin act requires more than sec. 135 (z) (2) (c) of the federal act, and to avoid misbranding the label must contain instructions for use which are necessary for effective results and adequate for the protection of the user, besides adequate for the protection of the public. While we agree with the defendant the terms “user and the public” do not include vegetation, the instruction for use requirement is an enlargement of sec. 135 (z) (2) (c) by requiring instructions for use which are necessary for effective results. Furthermore, this section did not carry over from sec. 135 (z) (2) (g) of Title 7 the language which provided certain economic poisons were misbranded if used “in accordance with commonly recognized practice” and they produced injury to vegetation and other objects. Because of this and the requirement of more definite instructions for use the Wisconsin act gives substantially the same protection, if not more, than the federal act.

True, sec. 94.676 (5), Stats., does not require a warning of damage to vegetation but we think sec. 94.676 (4) accomplishes the same result by its requirement of instructions necessary for an effective result. An effective result can hardly include the killing of vegetation as well as the insects. “Effective result” means the insecticide will perform the function of an insecticide without damage to the object which is to be benefited by the use of the economic poison; in short, the remedy should cure, not destroy the patient. We do not consider the federal-act requirement of a positive warning against damage to vegetation to be significant. We see no difference in result in warning against use of malathion on wet vines and a required instruction directing malathion to be used only on dry vines. Sec. 94.676 (4) requires instructions for use which are not only effective but safe and in addition sub. (5) requires a warning as added emphasis to protect the objects named. Consequently, under the Wisconsin act if the insecticide causes damage to an object upon which the poison is applied when the instructions are followed, the product is misbranded.

A violation of sec. 94.676 (4), Stats., constitutes negligence per se because the violation is made a criminal offense by virtue of the prohibition in sec. 94.70 (1) (g), subject to the penalties provided in sec. 94.71 (1). Violations of criminal statutes with some exceptions not applicable here have been held to constitute negligence per se in a civil action for damages. McAleavy v. Lowe (1951), 259 Wis. 463, 49 N. W. (2d) 487; Farmers Mut. Automobile Ins. Co. v. Gast (1962), 17 Wis. (2d) 344, 117 N. W. (2d) 347. And specifically, a violation of an analogous law (Commercial Feed), sec. 94.72 (14) (b), was held to be negligence per se in a civil action to recover damages. Arndt Brothers Minkery v. Medford Fur Foods (1957), 274 Wis. 627, 80 N. W. (2d) 776; Metz v. Medford Fur Foods (1958), 4 Wis. (2d) 96, 90 N. W. (2d) 106; Tri City Fur Foods v. Ammerman (1959), 7 Wis. (2d) 149, 96 N. W. (2d) 495.

The defendant contends a reasonable construction of sec. 94.676 (4), Stats., does not require instructions which limit the application of the insecticide to cranberry vines when they are dry and not in the hook stage or, conversely, a warning not to use the insecticide when cranberry vines were wet and in the hook stage. This argument proceeds on the premise there was no evidence the defendant knew or should have known from any reasonable testing that such use of insecticide would damage the vines. There was positive testimony the defendant should have known that the Malathion Dust should not be used while the vines were in blossom but such a warning would not have prevented the use by the plaintiff in the hook stage. This argument of the defendant incorporates into the statute the rule of foreseeability and common-law negligence which we think must be rejected because the purpose and context of the section effectively forecloses such an interpretation.

The violation of the act is sufficient to sustain a verdict in favor of the plaintiff if the record shows there was reliance upon the instruction for use of the Malathion Dust and the malathion was a substantial factor in causing the damage to the cranberry vines. This raises the question of whether the jury’s finding that the malathion did damage the cranberry vines is sustained by sufficient credible evidence. The defendant argues the testimony of expert witnesses of the plaintiff cannot support the verdict because of the lack of probative value of such testimony. Two laymen testified for the plaintiff that in their opinion the damage claimed was caused by Malathion Dust. No objection was made to the competency of these witnesses to testify as experts. One of the witnesses, however, was stated to be a competent expert by a witness for the defendant. But the defendant argues the question solely is one of the probative value of the testimony and relies on Bucher v. Wisconsin Central R. Co. (1909), 139 Wis. 597, 120 N. W. 518. We do not think that case is controlling. Opinion evidence of lay witnesses regarding matters within their field of experience is generally held to be competent and the probative force of such testimony is for the trier of the facts. Milwaukee v. Johnston (1963), 21 Wis. (2d) 411, 124 N. W. (2d) 690; Smith v. Atco Co. (1959), 6 Wis. (2d) 371, 94 N. W. (2d) 697, 74 A. L. R. (2d) 1095. See Anno. Admissibility of opinion evidence of lay witnesses as to diseases and physical condition of animals, 49 A. L. R. (2d) 932.

In the instant case the jury had the testimony of the plaintiff’s witnesses, one of whom was an expert cranberry grower in Wisconsin, to weigh against the testimony of an expert from the eastern coast of the United States who had experience in raising cranberries but not in marshes, and another witness who stated he did not know the cause of the damage. We think the testimony of the plaintiff’s witnesses, together with the fact that the part of the cranberry marsh which was dusted with malathion produced no cranberries while the part of the marsh which was not dusted did produce a normal crop of cranberries is sufficient credible evidence to support the finding that the Malathion Dust caused the damage. Furthermore, the damage to the cranberry vines began to appear about two days after the first application of the malathion and a neighbor who also applied malathion at about the same time testified his plants were damaged.

It is true no general causation question was given the jury but under the first cause of action there was no necessity. Such ultimate question necessarily included the element of reliance of the plaintiff on the misbrand-ing and the effect of the Malathion Dust on the vines. The complaint alleged reliance upon the misbranding and the fact of reliance was not denied by the defendant’s pleadings and must be taken as true. Sec. 263.26, Stats. Consequently, the trial court could find as a matter of law, which it did, that the plaintiff relied on the mis-branding in following the inadequate instructions on the label and since the jury found that malathion did in fact cause the damage, these two findings considered together establish the necessary causal connection between the breach of the statute and the damage suffered. No question is raised concerning the amount of the damages.

Lastly, the defendant argues that its disclaimer on the label was valid and prevents recovery. This disclaimer may be sufficient to negate any implied warranty and common-law negligence — a question we do not now decide. But the disclaimer is not sufficient to insulate the defendant from the strict duty imposed upon it as a purveyor of economic poisons by the Economic Poisons Act. The use of a disclaimer to avoid the act would render it of no value. Since the Economic Poisons Act is a criminal statute and was passed to protect the safety of the public, a disclaimer of liability for its breach is against public policy, as was held in Metz v. Medford Fur Foods, supra, in relation to a similar statute involving mink food. This is practically conceded by the defendant if the act is construed as it has been.

By the Court. — Judgment affirmed.

       94.676 “Economic poisons; misbranding. An economic poison is ‘misbranded’:
      “(4) If the labeling does not contain instructions for use which are necessary for effective results and which, if complied with, are adequate for the protection of the user and public;
      “(5) If the label does not contain a warning or caution statement which, if complied with, is adequate to prevent injury to man and vertebrate animals.”

       7 USCA, sec. 135. “Definitions: . . .
      “(z) The term ‘misbranded’ shall apply—

        “ (2) to any economic poison—
      “(c) if the labeling accompanying it does not contain directions for use which are necessary and if complied with adequate for the protection of the public;
      “(d) if the label does not contain a warning or caution statement which may be necessary and if complied with adequate to prevent injury to living man and other vertebrate animals, vegetation, and useful invertebrate animals;
      “(g) if in the case of an insecticide, nematocide, fungicide, or herbicide when used as directed or in accordance with commonly recognized practice it shall be injurious to living man or other vertebrate animals, or vegetation, except weeds, to which it is applied, or to the person applying such economic poison.”


author: Gordon, J.

text:
    Ford Motor Credit Company, Appellant, v. Amodt, Respondent.

      December 2, 1965

    January 4, 1966.

      For the appellant there were briefs and oral argument by John Frampton of Chippewa Falls.
    For the respondent there was a brief and oral argument by Frank E. Hu&ttn&r of Cadott.
   Gordon, J.

For all our reverence for the jury system, we must not be blind to the fact that a jury is but 12 human beings possessed of all the foibles and flaws of mortal men. Shakespeare touched on this in Measure for Measure (Act 2, Scene 1) :

“The jury, passing on the prisoner’s life, May in the sworn twelve have a thief or two Guiltier than him they try.”

Abraham Lincoln in a letter dated June 12, 1863, to Erastus Corning wrote:

“A jury too frequently has at least one member more ready to hang the panel than to hang the traitor.”

Wisconsin has heretofore preserved a major exception to the general rule which bars jurors from invalidating their own verdict. This exception has permitted jurors to show that their verdict was mistakenly recorded.

The principal case which established the exception in Wisconsin is Wolfgram v. Schoepke (1904), 123 Wis. 19, 26, 100 N. W. 1054, where the court stated that jurors could impeach their own verdict by

“. . . showing that the words used in conveying it to the court, or enrolling it on the records, by mistake of the person uttering or writing them, fail to express the conclusion reached by all the jurymen.”

This exception was acknowledged in State v. Biller (1952), 262 Wis. 472, 476, 55 N. W. (2d) 414, and also in the recent case of Kink v. Combs (1965), 28 Wis. (2d) 65, 135 N. W. (2d) 789. In the latter case, an attempt was made to attack a verdict by presenting an affidavit of a juror to the effect that he had failed to resist because of “sheer fatigue.” The court stated, at page 78:

“This is an attempt of a juror to impeach his own verdict, and is not countenanced by this court. Only in limited cases, e.g., if a verdict is reported erroneously by clerical error, will jurors be heard to complain that the verdict is in error. Brophy v. Milwaukee Electric Railway & Transport Co. (1947), 251 Wis. 558, 30 N. W. (2d) 76.
“Olson v. Williams (1955), 270 Wis. 57, 70 N. W. (2d) 10, and a series of Wisconsin cases that precedes it point out the sound reasons of public policy behind this rule. Suffice it to say that if a showing that a juror was fatigued when he arrived at a verdict would result in setting it aside, the finality that we now confidently expect from a jury verdict would be at an end, and the jurors themselves would be harassed endlessly by the loser in his efforts to set aside their decision.”

As suggested above, there is a rational and compelling public policy which bars jurors from debasing their own verdict. This rule forecloses jurors from impugning their findings by asserting their own misconduct. Two recent cases reaffirming this long-established general rule are Ken-Crete Products Co. v. State Highway Comm. (1964), 24 Wis. (2d) 355, 363, 129 N. W. (2d) 130, and Field v. Vinograd (1960), 10 Wis. (2d) 500, 511, 103 N. W. (2d) 671.

The policy basis for the rule was asserted persuasively in Brophy v. Milwaukee Electric Railway & Transport Co. (1947), 251 Wis. 558, 566, 30 N. W. (2d) 76:

“There is sound public policy behind this general rule prohibiting impeachment of their verdict by the jury. The formality and dignity of the court proceedings are intended to provide as appropriate a surrounding as possible for the achievement of justice. The jury is kept apart from influences which might prejudice its decision. If jurors, after being discharged and after mingling with their friends who may have expressed approval or disapproval of the jury’s verdict, are to be allowed to impeach that verdict, the unbiased evaluation of the evidence which the solemn court proceedings are intended to facilitate, will have ceased to control decisions. In talking after the trial to those who did not like the verdict, a juror might be inclined to express a wish that it had gone the other way. He may honestly think that if he had it to do over again he would vote differently. He may admit that he would have voted differently if he had known what the legal effect of the verdict would be. It is likely that there should be such reactions in some cases. But such subsequent reactions are not to be allowed to impeach the verdict. If they were allowed, the verdict would cease to be a decisive thing, putting an end to litigation; the jurors would become subjects of post-trial chicanery, improper persuasion, and possibly bribery. In any event, objective discovery of the truth would be hampered, not promoted.”

An equally vigorous statement of the policy underlying this salutary rule is contained in Koss v. A. Geo. Schulz Co. (1928), 195 Wis. 243, 251, 218 N. W. 175:

“ ‘Let it once be established that verdicts solemnly made, and publicly returned into court, can be publicly attacked and set aside on the testimony of those who took part in their publication, and all verdicts could be, and many would be, followed by an inquiry in the hope of discovering something which might invalidate their finding. Jurors would be harassed and beset by the defeated party, in an effort to secure from them evidence of facts which might establish misconduct sufficient to set aside the verdict. If evidence thus secured could be used, the result would be to make what was intended to be a private deliberation, the constant subject of public investigation, to the destruction of frankness and freedom of discussion and conference.’ ”

Whenever a court rejects a past precedent, there will be those who will decry the change. The late Roscoe Pound, in his Interpretations of Legal History (1923), said, “Law must be stable and yet it cannot stand still.” Upon careful reflection, we have concluded that the continuation of the Wolf gram limitation will cause more injustice than it will cure.

We believe that the public-policy reasons which prompted the court to adopt the general rule foreclosing jurors from stultifying their own verdict applies with equal validity to the claim that an answer has been improperly recorded. We now expressly overrule Wolfgram v. Schoepke and disavow the exception to the general rule which was made in that case. Once the jury has returned its verdict into court and has been discharged, its members may not be permitted to initiate a challenge to such verdict, whether it be based on their own misconduct or a claimed erroneous recordation.

With Wolf gram overruled, there is even greater significance to the proceedings which occur in the courtroom at the time the verdict is returned. As a result of our present ruling, counsel must recognize that belated efforts to attack the recordation will be unavailing and therefore, if any doubt whatsoever exists on this, a polling of the jury should be held. If, as in the case at bar, an attorney is not present when the jury returns its verdict, it will ordinarily be interpreted as a waiver of his right to challenge the accuracy of the inscription.

The situation in which a juror attempts to initiate an attack upon the verdict must be distinguished from the case in which an impropriety was observed by a third person and a report thereof was made to the trial court. Thus, in State v. Sawyer (1953), 263 Wis. 218, 225, 56 N. W. (2d) 811, after the verdict was returned, the court clerk discovered that he had inadvertently delivered the prosecutor’s argument notes to the jury along with the exhibits when the jury retired to commence its deliberations. When the clerk informed the court of this event, it was appropriate for the court to have conducted an inquiry concerning the presence of the prosecutor’s notes in the jury room.

Similarly, in a case such as Cullen v. State (1965), 26 Wis. (2d) 652, 660, 133 N. W. (2d) 284, the trial court may inquire into an alleged impropriety involving the jury. In the Cullen Case, it appeared that a woman who served as a jury matron was the wife of a prosecution witness. See also State v. Cotter (1952), 262 Wis. 168, 54 N. W. (2d) 43; Surma v. State (1952), 260 Wis. 510, 51 N. W. (2d) 47; La Valley v. State (1925), 188 Wis. 68, 205 N. W. 412.

Our ruling terminates the existence of the Wolfgram exception to the general exclusionary rule. We recognize, however, that in some situations (such as Sawyer and Cullen) jurors may properly be subject to interrogation by the court to determine if an irregularity occurred; however, trial courts should limit such inquiries to those cases in which the court is persuaded (1) that substantial personal awareness of the alleged impropriety is within the direct and independent knowledge of one who did not serve as a member of the jury, (2) that such knowledge was not derived by such person from a juror after the jury’s discharge, and (3) that the challenge to the integrity of the verdict originated from such person rather than from a juror. Thus, jurors may sometimes be required to confirm or deny someone else’s attack upon their verdict, but they themselves may never embark on a course which will impeach their verdict.

In addition to basing his order for a new trial upon the foreman’s failure to record the verdict accurately, the trial court also relied upon the fact that two documents which had not been received into evidence were examined by the jurors during their deliberations. There can be no doubt that the jurors were legally foreclosed from disclosing this phase of their deliberations.

In view of our determination that there is no exception as to recordation of the verdict, it follows that the order for a new trial in the interests of justice was based upon an error of law. Under such circumstances, an order for a new trial in the interests of justice may be reversed. Felkl v. Classified Risk Ins. Corp. (1964), 24 Wis. (2d) 595, 600, 129 N. W. (2d) 222; Holtz v. Fogarty (1955), 270 Wis. 647, 651, 652, 72 N. W. (2d) 411; Graff v. Hartford Accident & Indemnity Co. (1950), 258 Wis. 22, 28, 44 N. W. (2d) 565. Upon the remand, the trial court should enter judgment based upon the jury’s written verdict.

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


author: Wilkie, J.

text:
    Estate of Helgert: Helgert, Appellant, v. Luedke and others, Respondents.

      December 2, 1965

    January 4, 1966.

      For the appellant there were briefs and oral argument by David L. Walther of Milwaukee.
    For the respondents there was a brief and oral argument by John W. Emmerling of Milwaukee.
   Wilkie, J.

Three questions of procedure are presented on this appeal:

First, is appellant a party in interest within the meaning of sec. 310.045, Stats.?

Second, is appellant guilty of laches ?

Third, is appellant estopped from petitioning for the probate of the will?

For the reasons indicated below our answer to the first question is “Yes,” and to the second and third, “No.” Thus, we reach the final and obviously most crucial issue: As a matter of law, was the will revoked, in toto ?

Interested, Party.

Pointing out that appellant was neither an heir nor specifically named in the will, the trial court found that she was “not a party in interest or entitled to petition for the probate” of the will. Appellant counters that since she would be a legatee if her contention that the will, as altered, included her as one of the unnamed sisters, she would be entitled to a share of the estate. Thus, appellant contends that she has an interest within the meaning of sec. 310.045 (1), Stats.

Appellant must first establish that the will was not revoked in toto. After doing this she must then prove that somehow she takes under the will, as altered. To ascertain whether she is an “interested person,” as an initial proposition, it is necessary in this case to go into the merits of her position. Going into the merits is just what appellant wants; as she contends, this makes her an “interested person” at least to the extent of having the merits of her position determined. In effect, it is another version of the age-old inquiry of which came first, the hen or the egg. We eagerly leave this inquiry to the scientists to settle. It is enough for us to determine here that under the circumstances of this case the petitioner is an interested person to present her petition and to have the opportunity to prove to the court the will giving her an interest in the estate. This holding is consistent with the avowed policy of the law to demand “full and unshackled inquiry as to the existence, validity, and establishment of wills and revocations thereof.”

Laches.

The trial court determined that appellant was barred by laches from instituting the probate proceedings. However, it is well settled that the mere lapse of time will not prevent the probate of the will.

Estoppel.

The trial court found that appellant was estopped from presenting the will for probate. This court has held that “In the absence of conduct creating an estoppel it is generally held that the grant of letters of administration does not bar the probate of a will subsequently presented.”

In the recent case of City of Milwaukee v. Milwaukee County we defined estoppel in pais as follows:

“An estoppel in pais consists of action or nonaction on the part of the one against whom the estoppel is asserted which induces reliance thereon by another, either in the form of action or nonaction, to his detriment. Dixon v. Davidson (1930), 202 Wis. 19, 231 N. W. 276; Callaway v. Evanson (1956), 272 Wis. 251, 75 N. W. (2d) 456; Eau Claire Dells Improvement Co. v. Eau Claire, supra.”

Noting that the land which was in the estate and subsequently sold to third persons has increased considerably in value as the result of improvements, respondents contend that if appellant is not estopped and attempts to recover from the purchasers, they could be liable under the warranty deeds for more than four times as much money as they actually received on the sale. However, this analysis overlooks the rule that where there has been a decree of intestacy and distribution, anyone buying land from the estate is protected as a bona fide purchaser. Respondents could only be liable for the total value of the estate.

Although appellant could be estopped from probating the will, the lack of testimony by or affidavits of the heirs- in regard to their knowledge, reliance and acts, makes it impossible to ascertain whether or not she actually is so precluded in the present case. Consequently, for purposes of this appeal, this court must assume that the petitioner is not estopped from presenting the will for probate.

This brings us to the merits of the controversy: Was the will totally revoked ?

Total Revocation.

The trial court found that Helgert had in fact revoked his will. Appellant would have this court declare, as a matter of law, that the will was not revoked, and remand the case for further proceedings.

Sec. 238.14, Stats., provides, so far as material, that:

“No will nor any part thereof shall be revoked unless by burning, tearing, canceling or obliterating the same, with the intention of revoking it, . . . or by some other writing, signed, attested and subscribed in the manner provided in this chapter for the execution of a will; . . .”

The will was not burned, torn, or obliterated. An examination of the multifarious markings on the will and the backer demonstrates, and appellant does not seriously deny, that Helgert unquestionably intended to revoke his will. Thus the entire revocation question turns on whether the writing amounts to an effective cancellation. No comparable case could be found either in Wisconsin or in any other jurisdiction.

The general rule is that lines, marks, or written words must be placed across the written portion of the will in order to constitute an effectual cancellation, and that no revocation results .when words are merely written in the margin or elsewhere on the will. Nonetheless, it has been recognized that a cancellation, however slight, may constitute a revocation where there is proper intent, particularly where a dispositive provision is affected, or the elimination materially alters the meaning or legal effect of the will.

Out of the five paragraphs in the will, three were standard, routine provisions (dealing with debts, executrices and the revocation of prior wills), another explained that his children and ex-wife were purposely ignored, and only one — the second — made any disposition of property. By drawing lines through the names of his sisters Rose and Mary, who were the only ones taking under the will, Helgert destroyed any testate plan of distribution and rendered the will meaningless. The cancellation of key provisions, while leaving inconsequential clauses, was held to establish a revocation of the whole will in Estate of Rauchfuss. Furthermore, the jottings and comments on the will and backer, while insufficient of themselves to revoke the will, evidence a categorical and unequivocal intent to that end. The word “void” is found five times, the “Last Will & Testament” heading is crossed out, and sufficient explanation is given for his action.

Appellant relies on Will of Mary P. Ladd in contending that the will was not revoked. Ladd involved a will with “I revoke this will. Mary P. Ladd, October 7, 1879” written only on the backer, and no other markings on the will. Thus, Ladd is distinguishable on its facts from the instant case.

We conclude that, under the circumstances of this case, as a matter of law, the will was revoked as a whole. Any result which would make appellant a beneficiary violates the cardinal rule that the intent of the testator is the controlling factor. There is absolutely no mention of appellant in the will as originally written or as altered. Helgert’s notations and the will indicate that others were to share his estate.

By the Court. — Order affirmed.

       “Petitions to county court. (1) General. All applications to county courts, except motions in matters at issue, shall be made by verified petition. All petitions must show the jurisdiction of the court and the interest of the petitioner. . . .”

        Will of Burns (1933), 210 Wis. 499, 504, 246 N. W. 704. See also Estate of Hulett (1959), 6 Wis. (2d) 20, 94 N. W. (2d) 127, and Will of Dardis (1908), 135 Wis. 457, 115 N. W. 332.

        Estate of Yahn (1951), 258 Wis. 280, 284, 45 N. W. (2d) 702; Simpson v. Cornish (1928), 196 Wis. 125, 147, 218 N. W. 193; Guardianship of Reeve (1922), 176 Wis. 579, 591, 186 N. W. 736; Will of Brandon (1916), 164 Wis. 387, 391, 160 N. W. 177; Hanley v. Kraftczyk (1903), 119 Wis. 352, 356, 96 N. W. 820.

        Estate of Yahn, supra, footnote 3, at page 284, citing 57 Am. Jur., Wills, p. 535, sec. 787, and Anno. 95 A. L. R. 1107.

       (1965), 27 Wis. (2d) 53, 66, 133 N. W. (2d) 393. Cited with approval in Hanz Trucking, Inc., v. Harris Brothers Co., ante, p. 254, 138 N. W. (2d) 238.

        Simpson v. Cornish, supra,, footnote 3.

       See 2 Page, Wills (Bowe-Parker rev.), p. 359, sec. 21.8.

       See 2 Page, Wills (Bowe-Parker rev.), p. 362, sec. 21.9; 1 Callaghan’s, Wisconsin Probate Law and Practice (6th ed.), p. 184, sec. 5.50.

       See 2 Page, Wills (Bowe-Parker rev.), p. 364, sec. 21.10; 57 Am. Jur., Wills, p. 345, sec. 495; 57 Am. Jur., Wills, p. 349, sec. 503; Bohleber v. Rebstock (1912), 255 Ill. 53, 99 N. E. 75; Worcester Bank & Trust Co. v. Ellis (1935), 292 Mass. 88, 197 N. E. 637; Graham v. Burch (1891), 47 Minn. 171, 49 N. W. 697; Bohanon v. Walcot (1836), 1 How. 336 (Miss.), 29 Am. Dec. 631; Warner v. Warner’s Est. (1864), 37 Vt. 356.

       2 Page, Wills (Bowe-Parker rev.), p. 362, sec. 21.9.

       57 Am. Jur., Wills, p. 349, sec. 503.

       (1939), 232 Wis. 266, 287 N. W. 173.

       (1884), 60 Wis. 187, 18 N. W. 734.

        Estate of Southey (1965), 26 Wis. (2d) 335, 132 N. W. (2d) 532.


author: Beilfuss, J. Hallows, J.

text:
    Willenbring, by Guardian ad litem, and another, Respondents, v. Borkenhagen, Appellant.

      December 2, 1965

    January 4, 1966.

      For the appellant there was a brief by Hill, Miller & Quale of Baraboo, and oral argument by James H. Hill, Jr.

    For the respondents there was a brief by Vaughn S. Conway and Kenneth H. Conway, both of Baraboo, and oral argument by Vaughn S. Conway.

   Beilfuss, J.

Because we reverse on the first ground and reinstate the jury’s verdict, we do not consider the requests for new trial. The sole issue considered on this appeal is whether the trial court was justified in changing the jury’s determination of respondent’s negligence, so as to find no negligence on her part.

It is- undisputed that a minor seven years old or older is capable of being negligent. Sec. 328.44, Stats. We have often pointed out, “The degree of care required of a child depends upon his age, capacity, discretion, knowledge, and experience.” Rossow v. Lathrop (1963), 20 Wis. (2d) 658, 663, 123 N. W. (2d) 523. See also Blahnik v. Dax (1963), 22 Wis. (2d) 67, 125 N. W. (2d) 364; Brice v. Milwaukee Automobile Ins. Co. (1956), 272 Wis. 520, 76 N. W. (2d) 337. The record is void of any evidence to suggest that Mary Lou was of less than normal capacity and discretion. Her age is such that in the eyes of the law she is expected to exercise some degree of mature judgment. The trial court concluded that because of Mary Lou’s lack of experience with horses she had no knowledge of their natural propensities and that this, coupled with the desire of a child of her age to go about her affairs unsupervised, was sufficient to compel a finding that she was not negligent.

Certainly, Mary Lou’s experience with horses had been such that she should have been aware of some of the hazards in horseback riding (even though there is no evidence that the horse was unmanageable or erratic).

From the evidence presented the jury could have concluded that Mary Lou had sufficient knowledge to require her to accept the services of a guide, which services were included in the rental price. She knew that on both her trips to the Borkenhagen stable she had been advised to accept a guide. She knew that she was not an experienced horsewoman. She knew that she had been unable to make her horse respond to her commands just one week prior to the date of the accident. She knew that she had never been on the wooded trails at the Borkenhagen stable, and that she knew nothing of their nature and condition. She also knew that Mrs. Borkenhagen had mentioned the recent trouble with riders who had refused guides. Finally, she knew that Mrs. Borkenhagen was concerned enough to disclaim any liability for resulting injuries.

It being axiomatic that every person has a duty to use ordinary care for his own safety, Cordula v. Dietrich (1960), 9 Wis. (2d) 211, 101 N. W. (2d) 126, the jury could have found on the basis of the evidence presented that Mary Lou was causally negligent in failing to avail herself of the guide services offered.

The test to be applied when reviewing a change of answer is clear and well settled, and has been stated in Bleyer v. Gross (1963), 19 Wis. (2d) 305, 307, 120 N. W. (2d) 156:

“The rule is well established that a verdict or a finding of a jury will not be set aside or disturbed, ‘if there is any credible evidence which under any reasonable view fairly admits of an inference that supports the jury’s finding.’ Van Galder v. Snyder (1948), 254 Wis. 120, 123, 35 N. W. (2d) 187. [Footnote omitted.] ‘The familiar rule, often declared by this court, that where there is credible evidence to support a finding of a jury we may not disturb it, needs no citation of authorities.’ Mossak v. Pfost (1950), 258 Wis. 73, 75, 44 N. W. (2d) 922. It should be further pointed out, ‘on review this court must accept the credible evidence most favorable to sustain the verdict.’ Dickman v. Schaeffer, . . .”

Or, as the late Chief Justice Rosenberry stated it in Lutzenberger v. Milwaukee E. R. & L. Co. (1937), 224 Wis. 44, 47, 48, 271 N. W. 409:

“. . . The question here is, Is there credible evidence to sustain the verdict? If there is, even though it be contradicted and the contradictory evidence be stronger and more convincing, nevertheless the verdict of the jury must stand. The credibility of witnesses and the weight of the evidence are for the jury. The court does not retry the question. The court merely ascertains whether there is credible evidence to sustain the verdict. . . .”

Since the record contains evidence from which the jury could have concluded that Mary Lou was negligent, it was error for the trial court to change the jury’s determination. The verdict must be reinstated. For this reason we deem it unnecessary to consider the grounds for new trial raised in the alternative by appellant.

By the Court. — Judgment reversed, and cause remanded with directions to reinstate the verdict and enter judgment upon the verdict as reinstated.

Hallows, J.

(dissenting). I would affirm because I agree with the trial court that this plaintiff, a fourteen-year-old city girl should not be held negligent for not accepting a guide. In this mechanical age a fourteen-year-old minor knows more about automobiles than she does of the characteristics of riding horses. The degree of judgment a fourteen-year-old child can be charged with is not the mature judgment of an adult but the judgment of an ordinary prudent child of fourteen years. Almost daily we see children taking thrill rides at carnivals and fairs which many adults would not do. I think it would be a rare exception for a fourteen-year-old girl to accept the offer of a guide to go horseback riding. If the defendant was having accidents and trouble with his horses as the testimony shows, it was his duty in renting horses to the public to insist upon a guide. We should not charge negligence to a fourteen-year-old for failure to accept an offer, which in the nature of things would not normally be accepted.


author: Heffernan, J.

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

      December 3, 1965

    January 4, 1966.

      For the plaintiff in error there was a brief and oral argument by Neil J. Toman of Madison.
    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and William A. Platz, assistant attorney general.
   Heffernan, J.

Denial of counsel prior to trial.

Rafferty claims that after his arrest he was held in custody by the Madison police department without the opportunity to consult or advise with counsel for over forty hours. We have previously cautioned against such police conduct and have pointed out that:

“Such detention casts a doubt upon the validity of police methods of crime detection, constitutes an abuse to the arrested individual and may raise a question of the voluntariness of the acts performed and the statements made by the accused during that period of time.” Pulaski v. State (1964), 23 Wis. (2d) 138, 145, 126 N. W. (2d) 625.

However, this alleged abuse of the criminal process is raised for the first time in the brief and oral argument of counsel. There is nothing of record that would properly bring this contention before us. As we have previously said, our review of a judgment on writ of error is necessarily limited to the correction of errors that appear on the face of the record. Sparkman v. State (1965), 27 Wis. (2d) 92, 96, 133 N. W. (2d) 776; Babbitt v. State (1964), 23 Wis. (2d) 446, 450, 127 N. W. (2d) 405. In Sparkman, supra, we held that the contention that the defendant appeared at the preliminary hearing in manacles could not be considered by this court on writ of error when the record is silent in that regard.

We point out, however, that even though the record did show an unlawful detention, there has been no claim made that there was causal connection between the detention and the subsequent plea. Additionally, “Some showing must be made why the preservation of the constitutional issues were not waived by his subsequent plea of guilty.” Pulaski, supra, page 146.

Not having raised this alleged error on the record below by a motion to withdraw the plea, this matter is not before us.

Waiver of counsel and plea of guilty.

Additionally, the defendant claims that he did not freely and intelligently waive his right to counsel at the time of arraignment. Again, this matter is initially raised in this court and not by the appropriate motion in the trial court. We held in Van Voorhis v. State (1965), 26 Wis. (2d) 217, 223, 131 N. W. (2d) 833, that:

“A claim that defendant was not properly advised cannot be raised as a matter of right on review of the judgment unless the claim was raised in the trial court before judgment. If not so raised before judgment, the claim can be raised here by appeal from the order of the trial court, after judgment, denying an application on that ground for a new trial or leave to withdraw a plea.”

The record, however, of the proceeding at arraignment is before us and in the discretion of the court it may review matters of record though not raised initially and properly in the trial court.

Upon a review of that record, we conclude that the defendant intelligently and voluntarily waived his right to counsel. He was advised of his right to have counsel at public expense and of the consequences of his plea and the possible duration of sentence. He was informed in detail of the factual basis for the charge against him, and the use of coercion, duress, or promises was inquired into. The court asked no questions in regard to the defendant’s educational background or level of intelligence. However, the questions and responses to them were of a nature that the judge could adequately appraise the defendant’s intelligence. Moreover, the record shows that the judge was aware of the defendant’s previous criminal record and his frequent brushes with the law. A review of the record makes it apparent that counsel was waived and the plea of guilty entered freely, voluntarily, and understandingly. That is all that justice and due process require. State ex rel. Kline v. Burke (1965), 27 Wis. (2d) 40, 45, 133 N. W. (2d) 405.

Pellet gun a dangerous weapon within the meaning of sec. 9^3.32 (2), Stats.

The defendant is charged with violation of sec. 943.32 (1) and (2), Stats., which provide as follows:

“(1) Whoever, with intent to steal, takes property from the person or presence of the owner by either of the following means may be imprisoned not more than 10 years:
“(a) By using force against the person of the owner with intent thereby to overcome his physical resistance or physical power of resistance to the taking or carrying away of the property; or
“ (b) By threatening the imminent use of force against the person of the owner or of another who is present with intent thereby to compel the owner to acquiesce in the taking or carrying away of the property.
“(2) Whoever violates sub. (1) while armed with a dangerous weapon may be imprisoned not more than BO years.”

The information charges that he was “armed with a dangerous weapon, to wit, a pellet gun.”

Counsel contends that a pellet gun is not a dangerous weapon in the purview of the statute.

Sec. 939.22 (10) defines “dangerous weapon” as:

“. . . any firearm, whether loaded or unloaded, or any device designed as a weapon and capable of producing death or great bodily harm, or any other device or instrumentality which, in the manner it is used or intended to be used, is calculated or likely to produce death or great bodily harm.”

Sec. 9B9.22 (14) defines “great bodily harm” as:

“. . . bodily injury which creates a high probability of death, or which causes serious permanent disfigurement, or which causes a permanent or protracted loss or impairment of the function of any bodily member or organ or other serious bodily injury.”

A pellet gun is not a firearm. A firearm is defined by Black’s Law Dictionary as “a weapon which acts by force of gunpowder.”

The question, however, is whether a pellet gun is a “device designed as a weapon and capable of producing death or great bodily harm.” It is clear that a pellet gun is a weapon. In W. H. B. Smith, Gas, Air, & Spring Guns of the World, Military Service Publishing Company (1957), the following definition appears at page 169:

“A compressed-air gun (or rifle or pistol) is an arm in which the air which furnishes the force to propel the pellet (or ball, bullet, dart, or spear) is compressed in a chamber, which may be housed within the arm or may be attached directly to it.”

The record does not disclose the exact nature or make of the pellet gun used. The transcript reveals that the gun was “pumped up.” Smith, supra, page 169, points out that in England pump guns are by law limited in muzzle velocity and those that exceed the limitations are declared to be firearms and are subject to severe restrictions as to use. In discussing American pump pellet guns, Smith states (p. 169):

“The number of pumping strokes determines the variable power, which can considerably exceed European police regulations.”

The Benjamin pump pistol will penetrate about one-fourth inch of pine (Smith, supra, p. 176). A pump-gun rifle may penetrate as much an an inch into a pine board (supra, p. 172). Smith states that the Sheridan Super pump rifle has a muzzle velocity of 770 feet per second, and “pests or vermin can be killed as much as 60 yards or 70 yards distance from the muzzle. The Sheridan has been used as a rat exterminator on the Los Angeles dumps, as a hog stunner for slaughtering on farms, and for killing trapped foxes. . . .” (supra, p. 191).

Richard Leofric Jackson, Assistant Commissioner, Criminal Investigation Department, New Scotland Yard, London, writes in the text, Criminal Investigation:

“Although not, strictly speaking, a firearm, it should be remembered that the modern airgun or so-called air rifle will fire a bullet up to .22 with accuracy up to ranges of at least fifty yards, and that serious damage can be done with one of these weapons at considerably longer ranges.” (Gross, Criminal Investigation, 5th ed., by Jackson, p. 217.)

It is undoubtedly true that a pellet gun is less lethal than the usual firearm, and the gun used in the robbery was apparently not a rifle; however, the facts set forth above make it clear that the pellet gun is not a toy, but is potentially a weapon of great effectiveness and utility.

Our court in Harris v. Cameron (1892), 81 Wis. 239, 51 N. W. 437, held that a Daisy BB gun was not a weapon of such a nature that it was negligence per s& for a father to give it to a child. That case is not authority for holding that a pellet gun is not a dangerous weapon, for the question in Harris was that of the father’s civil liability. Moreover, Harris made much of the fact that the Daisy was a “mere toy or plaything for boys.”

The information quoted above shows that pellet guns are not “mere toys.”

The record shows that Rafferty and a companion robbed a filling station and used the pellet gun in the commission of the crime. The defendant pulled the pellet gun on the attendant and demanded the money on his person and in the cash register. The attendant was at gunpoint forced to lie on the floor. While he was in that position, the defendant struck him on the head with the pellet gun. The impact discharged the gun, and the pellet embedded itself in the wall.

The fact that the pellet was thus embedded is evidence of the striking power of a pellet gun at close range. We conclude that a pellet gun used as a compressed-air weapon is a dangerous weapon calculated or likely to produce great bodily harm.

Moreover, the gun, used as a bludgeon, was a dangerous weapon. This court, even prior to the statutory change which included an “unloaded firearm” in the definition of dangerous weapon (sec. 939.22 (10), Stats.), recognized that a pistol used to strike with is a dangerous weapon. Schiner v. State (1922), 178 Wis. 83, 189 N. W. 261.

The California supreme court has held that a toy cap pistol used as a bludgeon is a dangerous weapon. People v. Ward (1948), 84 Cal. App. (2d) 357, 190 Pac. (2d) 972; People v. Coleman (1942), 53 Cal. App. (2d) 18, 127 Pac. (2d) 309. A recent Maryland case, Jackson v. State (1963), 231 Md. 591, 191 Atl. (2d) 432, held that a starter’s pistol, which could not discharge a bullet, was a dangerous weapon because it could be used as a bludgeon and because it had the appearance of a lethal gun. We have no hesitancy in holding that the pellet gun when used as a bludgeon, in this case to strike the filling station attendant, is an “instrumentality which, in the manner it is used ... is calculated ... to produce . . . great bodily harm.”

Can accused after a plea of guilty question the evidence ?

The plaintiff, after a plea of guilty now contends that there was no evidence that force was used in the commission of the crime as required by statute, that the blow to the head of the attendant was not in the commission of the robbery, but was to facilitate escape. His argument is essentially that there was no evidence or insufficient evidence to show that force was used in committing the robbery. As we have said in Hawkins v. State (1965), 26 Wis. (2d) 443, 448, 132 N. W. (2d) 545:

“. . . a plea of guilty, voluntarily and understandingly made, constitutes a waiver of nonjurisdictional defects and defenses.”

In that case, it was held that the defendant waived his right to object to the use of evidence that he claimed was illegally seized. In State v. Lampe (1965), 26 Wis. (2d) 646, 648, 133 N. W. (2d) 349, Mr. Justice Hallows stated:

“By the plea, the defendant admitted the facts charged hut not the crime and in this respect a plea of guilty is like a demurrer.”

We deem that Rafferty by his plea of guilty has not only waived any objection to the legality of the evidence, but also to the quantum of it. He cannot now claim that there was insufficient evidence to sustain conviction on his plea of guilty.

By the Court. — Judgment affirmed.