author: Currie, C. J.

text:
    Auto Acceptance & Loan Corporation, Plaintiff and Respondent, v. Taus and others, Defendants: American State Bank, Defendant and Appellant.

      October 5

    November 2, 1965.

      For the appellant there was a brief and oral argument by David L. Walther of Milwaukee.
    For the respondent there was a brief and oral argument by H. J. Sanville of Milwaukee.
   Currie, C. J.

The issues attempted to be raised by appellant bank on this appeal are:

(1) Is the trial court’s finding, that plaintiff’s mortgage of March 16, 1961, was given in renewal of plaintiff’s mortgage of October 3, 1960, contrary to law or the great weight and clear preponderance of the evidence ?

(2) Does the order modifying judgment sufficiently protect defendant bank’s right to have adjudicated the issue of marshaling of assets raised by its motion for review ?

(3) Does the evidence support the finding that plaintiff is entitled to $3,918.93 interest on the March 16, 1961, mortgage note ?

Priority Issue.

The evidence which supports the trial court’s finding that plaintiff’s March 16, 1961, mortgage was given in renewal of its October 3, 1960, mortgage is this: Kaminsky, president of plaintiff, testified that the March 16, 1961, note in the sum of $10,644 was a renewal of the October 3, 1960, note of $14,893. The balance owing on the $14,893 original note as of March 16, 1960, was $10,644 so that the new note was for the identical sum of this balance. The October 3, 1960, mortgage was later satisfied of record.

To rebut this evidence appellant relies on the fact that the October 3, 1960, mortgage was not satisfied until three months after the giving of the new note and mortgage, and the printed form of satisfaction recited that the October 3, 1960, mortgage “is fully paid, satisfied and discharged.”

In Kellogg Brothers Lumber Co. v. Mularkey this court was faced with a fact situation not essentially different from what is before us in the instant case. There a mechanic’s lien claimant stood in the same position as appellant bank does here. The original mortgage which had priority over the mechanic’s lien was satisfied five days after the giving of the new mortgage in renewal of the original mortgage. The mechanic’s lien claimant, as does appellant here, contended that the satisfaction of the original mortgage was conclusive with respect to its discharge as a lien against the mortgaged premises. In rejecting this contention, Mr. Justice Wickhem, speaking for the court, stated:

“The authorities in this country are overwhelming to the effect that such a satisfaction as is here involved is not conclusive as to the discharge of the mortgage or the payment of the indebtedness secured thereby, and that in the absence of paramount equities it will not be held to have resulted in a subordination of the security of the senior lien to an existing junior lien unless the circumstances of the transaction indicate this to have been the intention, or unless such intention is shown by extrinsic evidence.”

The facts of the instant case clearly bring it within the scope of this rule. There is no evidence of express intention on the part of plaintiff and the mortgagors that appellant’s mortgage should have priority and there is a complete absence of any paramount equities which would require such result. Appellant has done nothing in reliance upon the satisfaction of plaintiff’s original mortgage. By according priority to plaintiff’s present mortgage appellant is left in no worse position than it was when it took its mortgage on October 17, 1960.

Appellant argues that the rule stated in the Kellogg Brothers Lumber Co. Case is considered applicable primarily when the renewal and satisfaction are contemporaneous, and the three-month separation in time between the March mortgage and the June satisfaction defeats the application of the general rule to the facts before us. Although the contemporaneousness of the transactions has been stressed by some authorities, the fact that three months separated the transactions in the case before us should not defeat the operation of the general rule. If the transactions had been reversed, the October 3, 1960, mortgage satisfied in March and the new mortgage not executed until June, then the time discrepancy would be important as it would tend to refute plaintiff’s claim that the second mortgage was in fact a renewal. However, in the present case, the renewal was executed first, and the satisfaction three months later. The important transaction from the standpoint of time is the new mortgage, and it was concluded while the October 3, 1960, mortgage was still in effect.

We attach no significance to the fact that the printed form of mortgage satisfaction used the words “fully paid.”

Appellant cites Rielly v. Arnsmeier where this court held the rule of the Kellogg Brothers Lumber Co. Case inapplicable because of change in some of the parties executing the two mortgages. We do not have such distinguishing facts here.

Not only do we find the trial court’s determination that plaintiff’s mortgage has priority over that of appellant is not contrary to the great weight and clear preponderance of the evidence, but that the evidence here requires such a holding as a matter of law.

Marshaling of Assets.

Appellant requests that it be protected by the doctrine of marshaling of assets if this court affirms the determination of priority made by the trial court. In 4 American Law of Property, this doctrine is defined as follows:

“The paramount mortgagee of a tract, parcels of which have been transferred or mortgaged to persons under circumstances giving to them a right of marshaling against other portions of the property, must not do anything to defeat the rights of such persons if he knows of them. The knowledge must be actual, not constructive through the recordation of subsequent conveyances or mortgages of portions of the mortgaged property. However, if the paramount mortgagee does have actual notice of subsequent alienations or mortgages of parcels of the mortgaged property, he acts at his peril in releasing from the mortgage any part of the property against which the marshaling equity runs. Hence if he releases such a part, under such circumstances, he must deduct from the debt, before enforcing his lien against the property in the hands of these persons, the value of the property released which they had a right to have him apply to the debt before resorting to the property held by them.”

Appellant points out that when plaintiff satisfied the October mortgage on June 19, 1961, plaintiff’s mortgage included those properties comprising parcels B and C in the mortgage. However, appellant’s junior mortgage was only on that parcel described in the October 3, 1960, mortgage as parcel C. Appellant urges that the judgment of the trial court be amended to provide that should the public sale be insufficient to satisfy the amounts due both plaintiff and appellant, the value of the released mortgage on parcel B be determined, and that such value be credited to appellant.

Appellant concedes that it cannot be determined whether it has been prejudiced by the release of Parcel B until the foreclosure sale of Parcel C has been held and it is determined whether there is an insufficiency of proceeds to satisfy both plaintiff’s and its mortgages.

We conclude that appellant’s rights with -respect to application of the aforequoted rule of marshaling of assets has been fully protected by the modification made in the judgment by the order of January 28, 1965. Under this modification, if the sale produces insufficient proceeds to pay both plaintiff’s and appellant’s mortgages, the issue of marshaling of assets can be fully considered and examined at the time of the court’s hearing on motion to confirm sale and distribute the proceeds thereof.

Interest Allowed on Plaintiffs Mortgage.

Kaminsky, president of plaintiff, testified that the interest owing on plaintiff’s $10,644 mortgage note to date of trial was $3,918.93. This was the amount of interest the trial court found in its findings of fact to be due, and the amount was included in the judgment. The space in the printed note in which to insert the rate of interest was not filled in so no rate of interest was specified. Thus the note provided for interest without specifying the rate. At one point in Kaminsky’s testimony he stated that plaintiff had agreed to “carry” the interest on the note for one year, which appellant interprets as an agreement that the note should bear no interest for a year. It is because of this that appellant now raises the issue that the interest allowed in the judgment should be computed at the legal rate from March 16, 1962.

The record fails to show that appellant ever raised the issue of interest computation before the trial court either prior to judgment or upon its subsequent motion for review. In cases involving jury trials a party is precluded on appeal from raising as a matter of right an alleged error of the trial court which has not been raised in the trial court. In the recent case of Fringer v. Venema we left open the question of whether this same rule was applicable to trials before the court. We did, however, point out that sec. 269.46 (3), Stats., provides that all judgments and orders of the trial court can be reviewed by that court within sixty days of notice of entry thereof. Here appellant pursuant to sec. 269.46 (3) did move for review of the judgment but did not raise any issue with respect to interest. We hold that this precludes appellant from now raising this issue for the first time on appeal.

By the Court. — The judgment and order appealed from are affirmed.

Gordon, J., took no part.

       (1934), 214 Wis. 537, 252 N. W. 596.

       Id. page 539. These further authorities support this rule: Annos. 98 A. L. R. 843 and 33 A. L. R. 149; 36 Am. Jur., Mortgages, p. 916, sec. 458; 5 Tiffany, The Law of Real Property (3d ed.), p. 528, sec. 1488; Merchants & Marine Bank v. The T. E. Welles (5th Cir. 1961), 289 Fed. (2d) 188; Barnouw v. S. S. Ozark (5th Cir. 1962), 304 Fed. (2d) 717; Potwin State Bank v. Ward (1958), 183 Kan. 475, 327 Pac. (2d) 1091; Shanks v. Phillips (1932), 165 Tenn. 401, 55 S. W. (2d) 258; Insurance Co. v. Bank (1933), 114 W. Va. 271, 171 S. E. 530. See also Farmers & Merchants State Bank v. Hildebrandt (1936), 221 Wis. 394, 397, 398, 267 N. W. 42, 268 N. W. 212, and concurring opinion, page 405.

       1 Jones, Mortgages (8th ed.), p. 1092, sec. 737 ; 59 C. J. S., Mortgages, p. 342, sec. 281.

       (1936), 220 Wis. 564, 265 N. W. 713.

        Supra, footnote 1.

       The decision in the Rielly Case has been criticized by an acknowledged authority on property law. Jacob H. Beuscher, Work of the Wisconsin Supreme Court, Mortgages and Real Estate, 12 Wisconsin Law Review (1936), 46, 47, 48.

       Pages 376, 377, sec. 16.159.

        Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 518, 80 N. W. (2d) 380.

       (1965), 26 Wis. (2d) 366, 132 N. W. (2d) 565, 133 N. W. (2d) 809.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Foregger, Appellant, v. Foregger, Respondent.

      October 5

    November 2, 1965.

    For the appellant there was a brief by Edward H. Meldman and Ray T. McCann, both of Milwaukee, and oral argument by Mr. McCann.

    For the respondent there was a brief by Ruppa & Wegner, attorneys, and Norman W. Wegner of counsel, all of Milwaukee, and oral argument by Nathan Ruppa.

   Per Curiam.

Mr. Justice Gordon having taken no part in the decision upon this appeal, and the other members of the court being equally divided on the question whether the order should be affirmed or reversed, Mr. Chief Justice Currie, Mr. Justice Wilkie, and Mr. Justice Beilfuss being of the opinion that the order should be affirmed, and Mr. Justice Fairchild, Mr. Justice Hallows, and Mr. Justice Heffernan being of the opinion that the order should be reversed.

The order appealed from is affirmed.


author: Wilkie, J.

text:
    Ocampo, by Guardian ad litem, Appellant, v. City of Racine, Respondent.

      October 5

    November 2, 1965.

      For the appellant there was a brief by La France, Thompson, Greenquist, Evans & Dye, attorneys, and Adrian P. Schoone of counsel, all of Racine, and oral argument by Mr. Schoone.

    For the respondent there was a brief by Jack Harvey, city attorney, and Louis J. Roshar, assistant city attorney, and oral argument by Mr. Harvey.

    A brief amicus curiae was filed by Julian Bradbury of Madison, for the League of Wisconsin Municipalities.
   Wilkie, J.

Three issues are presented on this appeal:

1. Is the notice requirement in sec. 81.15, Stats., a condition precedent to the right to maintain an action, or is it a statute of limitation ?

2. Is the notice requirement in sec. 81.15 applicable to a minor ?

3. If the notice requirement in sec. 81.15 applies to a minor, is it constitutional ?

Giving of Notice is Condition Precedent.

As pertinent here, sec. 81.15, Stats., states:

“. . . No such action shall be maintained unless within 120 days after the happening of the event causing such damages, notice in writing signed by the party, his agent of attorney shall be given to the county clerk of the county, a supervisor of the town, one of the trustees of the village or mayor or city clerk of the city against which damages are claimed, stating the place where such damages occurred, and describing generally the insufficiency or want of repair which occasioned it and that satisfaction therefor is claimed of such county, town, city or village. . . .”

We have held that the notice requirement in sec. 81.15, Stats., is a condition precedent to the maintenance of a cause of action. Also, the Wisconsin court has held that the notice-of-injury requirement in the old sec. 330.19 (5), Stats. 1955, was a condition precedent and not a statute of limitation. The pertinent section of that statute stated:

“No action to recover damages for an injury to the person shall be maintained unless, within 2 years after the happening of the event causing such damages, notice in writing, signed by the party . . . shall be served upon the person or corporation by whom it is claimed such damage was caused, . . .”

In Hoffmann v. Milwaukee E. R. & L. Co. the court had to decide whether the following statute was a statute of limitation:

“ ‘No action to recover damages for an injury to the person shall be maintained unless, within one year after the happening of the event causing such damages, notice in writing, . . . shall be served upon the person or corporation by whom it is claimed such damage was caused, . . .’ ”

The Wisconsin court stated that the above statute was not a statute of limitation and on page 80 quoted with approval the test used in Troschansky v. Milwaukee E. R. & L. Co. to determine whether a statute is a statute of limitation:

“ ‘The statute does not assume to limit the time in which the action is to be commenced. . . . The limitation is not upon the time of the commencement of the action, but upon the time within which a certain prescribed act, necessary to the enforcement of his cause of action, shall be done. If this is not performed within the time so limited, he loses his right to proceed.’ ”

All of these holdings are consistent with the general rule as to when giving notice is regarded as a condition precedent rather than a statute of limitation, which rule is stated as follows:

“Notice by one party to another is frequently a condition precedent to the right to bring an action. Such notice may be required by express statutory enactment. . . . Whenever a statute provides that no suit shall be brought unless notice of the injury is given to the person responsible for it, the giving of such notice is a condition precedent to the plaintiff’s right to recover.”

The appellant argues that the notice requirement present in sec. 81.15 is a statute of limitation because of our recent decision in Holytz v. Milwaukee.

Holytz did not change the effect of the notice requirement in sec. 81.15, Stats. Prior to that case, it was a condition precedent to recovery; since Holytz, it still is a condition precedent to recoverjc A person has a cause of action against the city provided (or on condition that) he gives notice within the prescribed time. The notice requirement is not a limitation upon the time of commencement of the action. It is a condition precedent upon the right to bring an action against the city.

Required Notice Applies to Minors.

The Wisconsin court has applied the present notice requirement in sec. 81.15, Stats., to minors, and this seems to be the majority position among the courts in the nation.

The purpose of the notice requirement in sec. 81.15, Stats., is to protect the municipality from the expense of needless litigation by settling just claims without suit and to allow the city an opportunity for investigation of the claims filed. The exemption of minors from compliance with the notice requirement of sec. 81.15 would defeat the purpose of this requirement. Under sec. 990.01 (20), Stats., a minor is considered to be any person who has not attained the age of twenty-one years. Therefore, the minor in our case would have over fourteen years in which to bring an action against the city. With such a delay the city could not conduct a proper investigation and as a result it could not fairly decide whether the claim was just or adequately prepare its defense.

When Applied to Minors, Notice Requirement is Constitutional.

If no exception for minors can be read into the notice requirement of sec. 81.15, Stats., appellant contends that the section is unconstitutional because it violates the due-process clause of the Fourteenth amendment, U. S. Const., and sec. 9, art. I, Wis. Const.

In Hoffmann v. Milwaukee E. R. & L. Co. the court applied the notice requirement present in a statute to a nineteen-year-old minor, and held that the statute was not unconstitutional because the one-year notice requirement was not unreasonable or obnoxious to any constitutional provision. The test applied by the court was stated on page 82:

“It is further contended that if the statute requiring notice within one year applies to persons under twenty-one years of age, it is unconstitutional and void as repugnant to the first section of the fourteenth amendment to the constitution of the United States, and sec. 9 of art. I of the constitution of the state of Wisconsin. But it is sufficient to say, in reply to this contention, that the legislature has the right to impose conditions and pass limitation statutes running against minors as well as adults, and the question for consideration is whether a reasonable length of time be given after the right accrues within which to enforce it.”

In Will v. Jessen the court was asked to decide whether the notice requirement present in sec. 330.19 (5), Stats. 1955, applied to a five-year-old minor and whether it was constitutional if it applied to the minor. The court did not answer these questions but stated on page 501:

“While the applicability of the statute to a nineteen-year-old minor, and its constitutionality as so applied, was sustained by this court in Hoffmann v. Milwaukee Electric R. & L. Co. 127 Wis. 76, 106 N. W. 808, decided in 1906, we are urged to limit that decision to cases where the minor is old enough to act for himself in fact if not in law. The questions thus raised are serious and important, but we do not decide them on the present record.”

Two conflicting policies are present here. A city which faces a claim of liability is entitled to notice within a reasonable period of time both as to the way in which the accident happened and the nature and extent of the injuries. On the other hand a child of such tender years as here is limited in her capability of giving such notice. The legislature has the right to resolve this conflict in policies and to impose conditions on the individual’s right to recovery and these conditions will be upheld unless they are unreasonable. A condition is unreasonable when compliance with it is almost impossible and in essence the individual is given no right of recovery.

The one-hundred-twenty-day notice requirement is not unreasonable or unjust if the purpose of this requirement is taken into consideration. In some situations a minor may not be able to act for himself but his parent or guardian can act for him and preserve his right of recovery. It is not impossible to comply with this notice requirement.

By the Court. — Judgment affirmed.

       Sec. 81.15, Stats., as amended by ch. 435, Laws of 1963.

        Hogan v. Beloit (1921), 175 Wis. 199, 184 N. W. 687; Calvert v. Appleton (1928), 196 Wis. 235, 219 N. W. 102. In Lang v. Cumberland (1962), 18 Wis. (2d) 157, 118 N. W. (2d) 114, the court refers to sec. 81.15, Stats., as a notice-of-injury statute and treats it as a notice-of-injury statute, which places a condition precedent upon the right to recover; see also 1941 Wisconsin Law Review, 540, 564.

         Martin v. Lindner (1950), 258 Wis. 29, 44 N. W. (2d) 558. In Gerke v. Johnson (1951), 258 Wis. 583, 46 N. W. (2d) 829, this court referred to the notice requirement present in sec. 330.19 (5), Stats. 1955, as a statute of limitation, but in Joosten v. Robinson (1960), 9 Wis. (2d) 1, 100 N. W. (2d) 327, this court again dealt with the notice requirement set down in sec. 330.19 (5), and stated on page 6: “In the Gerke Case we inadvertently referred to the two-year-notice statute in personal-injury cases as a 'statute of limitations.’ It should have been referred to as a ‘condition precedent.’ ” See also: Voss v. Tittel (1935), 219 Wis. 175, 262 N. W. 579; Reistad v. Manz (1960), 11 Wis. (2d) 155, 105 N. W. (2d) 324.

       (1906), 127 Wis. 76, 79, 106 N. W. 808.

       (1901), 110 Wis. 570, 571, 86 N. W. 156.

       1 Am. Jur. (2d), Actions, p. 610, sec. 81.

       (1962), 17 Wis. (2d) 26, 115 N. W. (2d) 618.

       See Skiris v. Port Washington (1936), 223 Wis. 51, 269 N. W. 556; Reed v. Madison (1892), 83 Wis. 171, 53 N. W. 547; McKeague v. Green Bay (1900), 106 Wis. 577, 82 N. W. 708; Hoffmann v. Milwaukee E. R. & L. Co., supra, footnote 4. In Lang v. Cumberland, supra, footnote 2, the court implied that the notice requirement of sec. 81.15, Stats., applied to a minor because it held the child’s father had given timely notice under sec. 81.15, thereby estopping the city from denying notice.

        Lang v. Cumberland, supra, footnote 2; 34 A. L. R. (2d) 725; 18 McQuillin, Mun. Corp. (3d. ed.), p. 577, sec. 53.159; 27 Am. Jur., Infants, p. 856, sec. 137.

       18 McQuillin, Mun. Corp. (3d ed.), p. 556, sec. 53.153; Benson v. Madison (1898), 101 Wis. 312, 77 N. W. 161; Lang v. Cumberland, supra, footnote 2. In Manas v. Hammond (1934), 216 Wis. 285, 257 N. W. 139, the court stated on page 288 the function of the notice requirement in the old sec. 330.19 (5), Stats.: “In reaching their decisions the courts have kept in mind the purpose of the notice requirement, to afford one charged with responsibility for an injury an opportunity to investigate the circumstances and preserve evidence for his defense before they are defeated by the intervention of time.”

       “. . . No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Fourteenth amendment, U. S. Const.

        “Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obliged to purchase it, completely and without denial, promptly and without delay, conformably to the laws.” Sec. 9, art. I, Wis. Const.

        Supra, footnote 4.

       (1956), 273 Wis. 495, 78 N. W. (2d) 905.

       The statute prior to Holytz required that the notice be given within 30 days. The 1963 amendment increased the period to 120 days. In Hughes v. Fond du Lac (1889), 73 Wis. 380, 41 N. W. 407, the court held that a five-day notice-of-injury requirement was unreasonable. On page 382, the court stated: “The time fixed is unreasonably short, and in many cases could not be complied with. The injured person might be unconscious, or so seriously hurt that he could not state ‘the place where, and the time when, such injury was received, and the nature of the same,’ within that period; so that the remedy given is coupled with an impossible condition. Such a provision is unreasonable and unjust, ... It is an arbitrary and unreasonable provision, which professes to give a remedy for an injury, but annexes to it a condition which in many cases cannot be complied with because the time fixed for serving the notice is so short.”


author: GoRdon, J.

text:
    Estate of Raulf: Milwaukee Lodge Benevolent and Protective Order of Elks #46, Appellant, v. First National Bank in Oshkosh, Executor, Respondent.

      October 5

    November 2, 1965.

      For the appellant there was a brief and oral argument by Bernard F. Mathiowetz of Milwaukee.

      For the respondent there was a brief by Thompson, Thompson & Grant of Oshkosh, and oral argument by Robert R. Thompson.

   GoRdon, J.

Each of the two bequests to the Elks Club was expressly limited by the testator as to the purpose for which it was to be used. In one instance, the will contained the words' “to be used only for charitable purposesin the other instance, the same expression without the word “only” was employed.

The trial court interpreted these gifts to be impressed with a restriction that they be used for public charitable purposes. In view of the language of the instrument, we must agree with that conclusion.’ Estate of Lawrence (1964), 22 Wis. (2d) 624, 126 N. W. (2d) 517; Will of Richter (1934), 215 Wis. 108, 254 N. W. 103. We interpret the words of this will to establish that the testator intended to make a charitable bequest, and under all the circumstances it must be construed to be a public charitable gift rather than a private charitable gift or a noncharitable one. Estate of Brandenburg (1961), 13 Wis. (2d) 217, 108 N. W. (2d) 374; Estate of Rowell (1946), 248 Wis. 520, 22 N. W. (2d) 604.

In Estate of Bletsch (1964), 25 Wis. (2d) 40, 130 N. W. (2d) 275, we recognized that the court will endeavor to carry out a charitable purpose which is manifested in a testament. If a private type of charity is intended by a donor, the instrument must offer reasonably clear support for such concept. This court will not presume an intention that a charitable bequest is to be available for private charitable purposes. Harrington v. Pier (1900), 105 Wis. 485, 82 N. W. 345. This is true no matter how worthy may be the institution or the private charity involved.

The testator in the case at bar did not create a formal trust, but we have held that the words “in trust” are not essential in the establishment of a charitable trust. Maxcy v. Oshkosh (1910), 144 Wis. 238, 249, 128 N. W. 899, 128 N. W. 1136; Restatement, 2 Trusts (2d), p. 215, sec. 351, ch. 11. Cf. Estate of Silverthorn (1957), 274 Wis. 453, 457, 80 N. W. (2d) 430.

In Estate of Bletsch (1964), 25 Wis. (2d) 40, 47, 130 N. W. (2d) 275, we commented as follows concerning the doctrine of cy pres:

“In our opinion, it is sufficient if there is a bequest to a charity. In a sense, it can perhaps be said that a charity always receives the gift in trust for its purposes.”

Sec. 231.11 (7) (d), Stats., asserts the legislative policy of our state to be as follows:

“Where the fulfillment of the special purpose expressed in a trust or other gift for charitable or public purposes is or becomes impracticable, impossible or unlawful, it shall be the duty of the courts by a liberal construction of the trust or gift to ascertain the general purpose of the donor and to carry it into effect in the nearest practicable manner to the expressed special purpose; provided, however, that the right of visitation of a living donor shall not be held to be impaired by anything contained in this subsection.”

The appellant has objected to the court’s appointment of trustees and has urged that trustees (if they are found to be needed) be selected from amongst the leadership of the appellant fraternal order. In the absence of a contrary intent determinable from the instrument, it is ordinarily within the province of the county court to select trustees and to fix the conditions and terms of the trust’s administration. See Estate of Rowell (1946), 248 Wis. 520, 525, 526, 22 N. W. (2d) 604; Restatement, 2 Trusts (2d), pp. 286, 287, sec. 397, ch. 11.

We recognize that tax considerations may have formed the impetus for this litigation. Nevertheless, the taxing agencies are not parties before this court, and we do not purport to reach any determination concerning the taxability of the interests herein.

By the Court. — Order affirmed.


text:
    Town of Mt. Pleasant, Plaintiff, v. City of Racine, Defendant. [Two appeals.]

      October 5

    November 2, 1965.

      For the plaintiff there was a brief by Benson, Butchart & Haley of Racine, and oral argument by Emery B. Benson.

    For the defendant there were briefs and oral argument by Jack Harvey, city attorney.
   Wilkie, J.

Two issues are presented on this appeal:

First, was the annexation petition invalid because not signed by the president of Racine Properties, Inc. ?

Second, is the annexation void because the boundary lines were drawn in such a way as to eliminate electors from the area proposed for annexation ?

Validity of Petition.

The board of directors of Racine Properties, Inc., which owned over half of the land in terms of area and assessed value, adopted the following resolution:

“Be it further Resolved, that George P. Demos, as President of the corporation, be and he hereby is authorized to execute such papers and documents on behalf of the corporation as are necessary and required to accomplish such annexation and that Craig T. Griffin, as Secretary of the corporation, be and he hereby is authorized to countersign such papers and documents on behalf of the corporation.”

Relying on Brown Deer v. Milwaukee, respondent contends that the petition was invalid because it was signed only by the secretary. In Brown Deer, the president of the company which desired to annex its land to the village of Brown Deer, signed the petition without having obtained either formal or informal authorization from the board of directors. This court held that a third party challenging the annexation could raise the question of the officer’s authority to sign the petition. In the present case it is undisputed that the directors had authorized the officers to act. Therefore, the most that Brown Deer does is give respondent the standing to attack the petition on the ground that both the president and secretary were required to sign the petition.

The resolution specifies that the signatures of both the president and secretary (or at the very least, the president) were required on any papers concerning the annexation. This is because the secretary was authorized to “countersign” any documents, and countersigning, by definition, is the adding of “one’s signature . . . after another’s to attest authenticity.” Although the petition was not signed in strict conformity with the resolution, the trial court concluded that this defect should not operate to vitiate the petition since the signing was merely a ministerial act to be done pursuant to the actual pre-existing authorization. We agree.

Validity of Annexation.

Annexation procedures are purely statutory. This direct annexation (as distinguished from one by referendum) was proposed under the provisions of sec. 66.021, Stats., as an annexation within a populous county (sec. 66.021 (11) (a)) and not involving one square mile or more (sec. 66.021 (11) (b)). There is a common-law presumption of validity which attaches to an annexation ordinance that remains until overcome by proof produced by the party attacking it.

Assuming that the prescribed procedures have been followed in the adoption of an annexation ordinance, it may be attacked in the courts on the ground that it is “arbitrary and capricious or is an abuse of discretion.”

In the instant case the town of Mt. Pleasant attacks the ordinance complaining that it is arbitrary and capricious and unreasonable in the way the boundary lines are drawn so “as to arbitrarily eliminate electors from participating in the annexation proceedings and without regard for city needs and purposes.” Respondent does not attack the ordinance on the ground that the territory lacks sufficient contiguity as was done in the first Mt. Pleasant v. Racine Case. Apparently respondent concedes that the addition of more land at the junction with the city cures that defect.

Following the taking of testimony, the trial court found:

“in segmenting jurisdiction along the Meachem Road, ten homes containing twenty electors were excluded from the area annexed; the excluded areas are bounded on three sides by the City of Racine, and they could have been included and given City services, and no municipal reason was advanced for their not being included in the annexed territory; . . .”

and

“that to adopt a rational and natural boundary line along the Meachem Road it would have been necessary to include the said twenty electors; that the boundary lines were gerrymandered so as to exclude at least twenty electors; that the said boundary lines are not reasonable or realistic, and create crazy-quilt boundaries which are difficult for both the City of Racine and the Town of Mt. Pleasant to administer ; that the boundary lines transcend into the realm of arbitrary and capricious action; that the annexation of the annexed area is an unreasonable annexation.”

As a conclusion of law the court stated:

“That a rational and natural boundary line along Meachem Road would have included twenty electors which were not included in the annexation; that the annexation boundary lines were gerrymandered so as to exclude at least twenty electors; that the boundary lines are not reasonable or realistic and result in crazy-quilt boundaries difficult for both City and Town to administer; that the boundary lines transcend into the realm of arbitrary and capricious action; and that the annexed area does not meet the test of reason; and that said annexation is void.”

Thus the court centered its attention on the boundary line along Meachem road. The record discloses, as shown on the accompanying map, that parts of the land both east and west of Meachem road were to remain in the town of Mt. Pleasant (G, H, I), while three interspersed areas (C, F and J) were incorporated in the proposed territory. Proceeding along Meachem road from north to south this left three parcels of land abutting on Meachem road in the township, on which parcels 10 different residences were located containing a total of 20 electors. The record reveals no proof of the reason why these residences were not included in the proposed annexation. Not one of the 20 excluded electors testified. The town asserted, and the trial court determined that the petitioners left out these areas and excluded at least 20 electors from the annexation proceedings, although there was no municipal reason for not including them in the annexed territory. In effect, the trial court shifted the burden of proof to the city once the annexation was attacked as being unreasonable. Once the annexation was questioned the city was expected to prove that there was a sound municipal reason for the exclusion of each and every piece of property not covered by the annexation. This was error. Although an annexation ordinance may be attacked in the courts under the rule of reason because it is alleged to be arbitrary and capricious, the party taking this position has the burden of proving that, in fact, the ordinance is arbitrary and capricious. There is nothing in the record to sustain the trial court’s finding that the annexation was arbitrary and capricious or unreasonable. Although there was proof that the 10 residences existed and that there were at least 20 electors in those excluded residences, there was no evidence indicating in any way that these electors had been approached by either the petitioners or the city or the objectors as to their views on the proposed annexation and the rendition of municipal services. There was the bare assertion that the lines had been drawn arbitrarily to exclude these electors. On this state of the record we have no hesitation in concluding that there is no evidence to support the trial court’s disputed findings.

Under the 1957 and 1959 comprehensive legislative rewrite of the annexation laws, court review of annexation is contemplated and the rule of reason applies to court review of proposed annexations. The annexation procedures provide for the sending of a notice of the proposed annexation to the state director of the planning function in the department of resource development. Under sec. 66.021 (11) (a), Stats., if, as here, an annexation is proposed of less than one square mile in a metropolitan community, that officer is to send a report to the annexing municipality if he finds that the annexation “is against the public interest,” as defined by the statute. Although he was given the required notice of the proposed second Georgetown annexation, the director did not send a report stating that the annexation was against the public interest. Therefore, it may be assumed that he concluded that the annexation was not against the public interest and that the Racine city council took the position of the director into account in acting on the annexation ordinance. When, as here, the annexation is later challenged in the courts on the ground that it is “arbitrary and capricious” the position of the director is evidence to be considered by the court in analyzing the proposed annexation in terms of the challenge made against it.

Out of the total area of 172 acres covered by the proposed annexation, 132 acres are platted. Most of the land is agricultural and at the time of the petition only 26 electors (17 signed the petition) actually resided in the proposed annexed area. The record discloses that the city was prepared to furnish all municipal services in the area including sewer, water, rubbish, garbage collection, fire and police protection. Within five years the city was scheduled to make all the capital improvements needed in the area. Some of the roads in the area were already in and improved.

Respondent contends that the facts of the instant case are completely within the following statement in Town of Fond du Lac v. City of Fond du Lac:

“In the case at bar the exclusion of the small island from Kiekhaefer’s property which contained two residences was solely to preclude the electors living therein from participating in the annexation proceeding. Such reason is not justifiable or germane to the purpose of the annexation to develop a future industrial area. Creating an island within the city solely for the purpose of assuring the success of the annexation was an arbitrary and capricious action and an abuse of discretion and invalidates the annexation.”

The present case is distinguishable from Fond du Lac on at least three grounds: First, in Fond du Lac the proposed boundary lines were such that if the annexation plan were adopted, a piece of township land 300 feet by 130 feet would be completely surrounded by city territory. The boundary lines associated with the Georgetown annexation do not create any “island.” Second, in Fond du Lac the annexation proceedings were commenced by the city while in the present case the city was bound to accept the plan “as is” since Racine Properties, Inc., was the petitioner. Third, the Meachem road electors, who were not included did not contest the proposed annexation while in Fond du Lac the similarly situated property owner did. In fact, the town of Mt. Pleasant electors did not even testify in support of the opponents of the annexation.

In Madison v. Monona, this court recognized that the annexation statutes place “no restrictions or requirements as to the amount of territory to be included, and . . . [they do] not require that the boundaries of such territory be according to any set pattern.” The boundaries of the territory to be annexed are discretionary with the petitioner.

Although the courts have the jurisdiction on review to determine whether a proposed annexation is arbitrary and capricious, the party so contending still has the burden of proving that the annexation is arbitrary and capricious, thus overcoming the presumed validity of the ordinance. This the town of Mt. Pleasant failed to do and we must therefore set aside the trial court’s determination that the ordinance was void.

On its appeal, respondent contends that even though the trial court declared the annexation invalid, it mistakenly enjoined the township from attempting to exercise control over the area in question while actually allowing the city to continue jurisdiction. Although this issue is rendered moot by our decision on appellant’s appeal, the procedure employed by the trial court was proper in that it was merely preserving the status quo as suggested in Town of Fond du Lac v. City of Fond du Lac.

By the Court. — Judgment reversed as to appeal by the city of Racine; order affirmed as to appeal by the town of Mt. Pleasant.

       (1962), 16 Wis. (2d) 206, 114 N. W. (2d) 493.

       Webster’s New International Dictionary (3d ed., unabridged).

        Greenfield v. Milwaukee (1956), 272 Wis. 388, 391, 75 N. W. (2d) 434; Zweifel v. Milwaukee (1925), 188 Wis. 358, 364, 206 N. W. 215.

        Greenfield v. Milwaukee, supra, footnote 5, at page 395; State ex rel. Madison v. Monona (1960), 11 Wis. (2d) 93, 97, 104 N. W. (2d) 158.

       “In annexation proceedings the city council in the first instance determines the suitability or adaptability of the area proposed to be annexed and the necessity of annexing the same for the proper growth and development of the city. Upon a review the courts cannot disturb the council’s determination unless it appears that it is arbitrary and capricious or is an abuse of discretion.” Town of Brookfield v. City of Brookfield (1957), 274 Wis. 638, 646, 80 N. W. (2d) 800.

       Supra, footnote 6.

       Sec. 66.021, Stats., ch. 676, Laws of 1957, ch. 261, Laws of 1959. See report of the Interim Urban Problems Committee to the 1959 Wisconsin Legislature, pp. 13, 14, and notes contained in Bill No. 226, A. (which became ch. 261, Laws of 1959). Also see 1957 General Report of Legislative Council, Vol. II, pp. 222-235.

        Town of Fond du Lac v. City of Fond du Lac (1964), 22 Wis. (2d) 533, 541, 126 N. W. (2d) 201; Mt. Pleasant v. Racine, supra, footnote 1, at page 45.

       Sec. 66.021 (11) (a) and (b), Stats.

       Sec. 66.021 (11) (c), Stats., provides as follows: “For purposes of this subsection public interest is determined by the director of the planning function in the department of resource development after consideration of the following:

        “1. Whether the governmental services, including zoning, to be supplied to the territory could clearly be better supplied by the town or by some other village or city whose boundaries are contiguous to the territory proposed for annexation which files with the circuit court a certified copy of a resolution adopted by a two-thirds vote of the elected members of the governing body indicating a willingness to annex the territory upon receiving an otherwise valid petition for the annexation of the territory.

        “2. The shape of the proposed annexation and the homogeneity of the territory with the annexing village or city and any other contiguous village or city.”

        Supra, footnote 10, at page 542.

       (1960), 10 Wis. (2d) 32, 40, 102 N. W. (2d) 206.

        Madison v. Monona, supra, footnote 14; In re Village of Oconomowoc Lake (1959), 7 Wis. (2d) 400, 97 N. W. (2d) 189; Town of Fond du Lac v. City of Fond du Lac, supra, footnote 10.

       (1964), 22 Wis. (2d) 525, 532, 126 N. W. (2d) 206.


author: Beilfuss, J.

text:
    Ginkowski, Appellant, v. Ginkowski, Respondent.

      October 5

    November 2, 1965.

      For the appellant there was a brief by Phillips & Richards of Kenosha, and oral argument by Charles Richards.

    For the respondent there was a brief by McEvoy & Munger of Kenosha, and oral argument by Earle Munger.

   Beilfuss, J.

The statement of the case, as it appears in plaintiff-appellant’s appendix, is as follows:

“Statement of Facts
“1. That both parties to this action have been, at the time of the commencement of this action, bona fide residents of the City of Kenosha, Kenosha County, Wisconsin.
“2. That on May 23, 1947, at Ozaukee County, Wis-r consin, the defendant procured an absolute divorce from her then husband, Louis Butera.
“3. That at the time of the commencement of this action, Louis Butera was and still is alive.
“4. That the parties hereto were married to each other at Waukegan, Illinois, on March 31, 1948, at which time both parties were Wisconsin residents and aware of the fact that the defendant herein had been awarded a decree of absolute divorce in Ozaukee County, Wisconsin, on May 23, 1947, and that one year had not expired from the time when that judgment was pronounced.
“5. That despite such legal obstacle, the plaintiff and defendant held themselves out to public notice in good faith as husband and wife from the day of their marriage on March 31, 1948, until the commencement of this action on August 12, 1964.
“6. That two children were born to said marriage and are now living, namely Stanley A. Ginkowski, born December 1, 1948, and Richard A. Ginkowski, born May 24, 1952.
“7. That no action for annulment was ever commenced by either of the parties within ten years after March 31, 1948, other than the present action.
“8. That during the marriage of said parties, they, together with their children, lived together in an apparent normal marital behavior ;
"Questions of Law
“1. Whether Sec. 330.18 Sub. Sec. 4, of the Statutes of Limitations of the State of Wisconsin is applicable to the case at bar and by reason of the fact that no annulment was commenced within ten years from the date of marriage of the parties at Waukegan, Illinois, on March 31, 1948, said marriage has now ripened into a valid, binding marriage by reason of lapse of time and operation of law.
“Decision
“The trial court in its conclusions of law, found that Sec. 330.18 (4) of the Statutes of Limitations of the State of Wisconsin is applicable to the present case and by reason of the fact that no action for annulment was commenced within ten years from the date of the marriage of the parties at Waukegan, Illinois, on March 31, 1948, said marriage has now ripened into a valid, binding marriage by reason of said lapse of time and operation of law.
“Points to be Relied Upon by Appellant
“1. That this marriage contracted within one year from the pronouncement of divorce on May 23, 1947, is void ab initio, Sec. 245.03 (1) Wis. Stats., Sec. 245.04 (1) Wis. Stats, and Sec. 247.37 Wis. Stats.
“2. A marriage void ab initio does not become valid through the passage of time, Sec. 247.02 Wis. Stats.
“3. That Sec. 247.02(3) and Sec. 247.03 Wis. Stats, are applicable to the case.
“Order Approving Statement of Case
“The parties to the above entitled action, having submitted the foregoing stipulations of the statement of the above captioned case, to the trial court in accordance with the provisions of Sec. 251.28 Wis. Stats. ;
“And the court having examined the statement of the case and having made its determination that the statement conforms to the truth of the case;
“NOW THEREFORE, it is ordered that the foregoing statement may be transmitted to the Supreme Court in the usual manner in accord with the particulars of Sec. 251.28 Wis. Stats.”

The issue is whether sec. 330.18 (4), Stats., applies to this case because no action of annulment was commenced within ten years of the date of the Illinois marriage, thus allowing that marriage to ripen into a valid, binding marriage by lapse of time and operation of law, as determined by the trial court.

Plaintiff’s first contention is that the marriage in Illinois was void ab initio and can never become a valid marriage. This court has repeatedly held that marriages out of state by Wisconsin residents to avoid the legal impediments in this state are void. Bliffert v. Bliffert (1961), 14 Wis. (2d) 316, 111 N. W. (2d) 188; Lanham v. Lanham (1908), 136 Wis. 360, 117 N. W. 787; Lyannes v. Lyannes (1920), 171 Wis. 381, 177 N. W. 683.

Defendant concedes that the marriage was void under sec. 245.03, Stats. (1947) [marriage by persons with a spouse living], or sec. 245.04 [marriage abroad to circumvent the laws]. Both of these statutes and the cases under them make this marriage void. Defendant contends, however, that a void marriage may ripen into a valid, binding marriage under sec. 330.18 (4), and Witt v. Witt (1955), 271 Wis. 93, 72 N. W. (2d) 748.

Lyannes v. Lyannes, supra, was qualified by the Witt Case insofar as the statute of limitations is concerned. We stated, at pages 97, 98:

“Counsel for the plaintiff George J. Witt base their principal argument against the application of sec. 330.18 (4), Stats., to the instant suit to annul a marriage because of the insanity of one of the parties on the following statement appearing in our decision in Lyannes v. Lyannes, supra (p. 390):

0): ‘In the void marriage the relationship of the parties, so far as its being legal is concerned, is an absolute nullity from its very beginning and cannot be ratified. It may be questioned at any time during the life of both, and, with some statutory exceptions (vide sub. (2), sec. 2351 [now 247.02], Stats.), after the death of either or both, and generally whether the question arises directly or collaterally.’
“The above statement was also quoted by this court in its decision in Estate of Canon (1936), 221 Wis. 322, 328, 266 N. W. 918. However, in neither the Lyannes nor the Canon Cases was the court confronted with any issue of the applicability of the statute of limitations found in sec. 330.18 (4), Stats., and it would have been obiter dictum if such statement were deemed to have been made with respect to such an issue. In the Lyannes Case the purported marriage to the plaintiff occurred on June 14, 1919, and the decision upon appeal in this court was rendered May 4, 1920; while in the Canon Case the marriage took place October 7, 1926, and the wife died August 4, 1932, and it was held that the husband could not inherit the estate of the wife because of the marriage being void. It surely cannot be assumed that this court in making the above-quoted statement in its opinion in the Lyannes Case had any intention of nullifying the express wording of sec. 330.18 (4).
“We find no necessity on this appeal of determining whether the marriage which occurred between George J. Witt and Irene Witt on October 14, 1930, was void or voidable. This is because sec. 330.18 (4), Stats., does not distinguish between actions instituted to annul void and voidable marriages.”

The plaintiff points out that the present statute, sec. 247.03 (2), provides, in substance, that an action for annulment grounded upon like facts can be brought any time while either of the parties has a husband or wife living. He then reasons that the ten-year statute of limitations does not apply. This argument overlooks the fact that sec. 247.03 (2) was not enacted until 1959.

Witt v. Witt, supra, held that the period of limitation begins to run from the date of the marriage. Statutes of limitation begin to run when the wrongful act is discovered. Thus, the ten-year statute began running on March 31, 1948, and expired March 31, 1958. “In Wisconsin the running of the statute of limitations absolutely extinguishes the cause of action for in Wisconsin limitations are not treated as statutes of repose.” Maryland Casualty Co. v. Beleznay (1944), 245 Wis. 390, 393, 14 N. W. (2d) 177.

Haase v. Sawicki (1963), 20 Wis. (2d) 308, 311, 121 N. W. (2d) 876, considered the constitutional problems involved in a legislative act attempting to make a three-year statute of limitations applicable to a cause of action which had become barred under a two-year statute. The court held this attempt unconstitutional because “[t]his court, by a long line of cases, has followed the construction that our statutes of limitation extinguish the right as well as the remedy.” See also, Shaurette v. Capitol Erecting Co. (1964), 23 Wis. (2d) 538, 546, 128 N. W. (2d) 34, and Shelby Mut. Ins. Co. v. Home Mut. Ins. Co. (1964), 25 Wis. (2d) 25, 130 N. W. (2d) 296.

We therefore conclude that the statute of limitations had completely run its course on March 31, 1958, ten years after the marriage, so as to extinguish the right as well as the remedy of annulment.

We recognize that if these parties had not been married for ten years prior to the enactment of sec. 247.03 (2), Stats., in 1959, the general ten-year statute of limitations (sec. 330.18 (4)) would not be available as a defense to an action for annulment.

This ruling can result in some existing void marriages being subject to the ten-year statute of limitations and others not, dependent upon when the marriage was entered into. Assuming sec. 247.03 (2), Stats., remains unchanged, time will cure this discrepancy.

We do not deem that this discrepancy can change our basic rule that the running of a statute of limitations extinguishes the right as well as the remedy; nor are we persuaded that the rule in the Witt Case, refusing to distinguish between void or voidable marriage in applying a statute of limitations, should be changed or qualified.

For the first time at oral argument the plaintiff contends that the defense of the statute of limitations is not available to the defendant because it was not raised by answer or demurrer and thus was waived pursuant to sec. 263.12, Stats.

This action comes to us under sec. 251.28, Stats., upon an agreed statement of the case; our review is limited to the issues as they appear in such statement.

By the Court. — Judgment affirmed.

        “Within ten years: . . . (4) An action which, on and before February 28, 1857, was cognizable by the court of chancery, when no other limitation is prescribed in this chapter.”


text:
    Harker, Respondent, v. Paul Revere Life Insurance Company, Appellant.

      October 6

    November 2, 1965.

      For the appellant there was a brief by Willard S. Stafford and Stafford, Rosenbaum, Rieser & Hansen, all of Madison, and oral argument by Willard S. Stafford.

    For the respondent there was a brief by Thomas W. Pierce and Riley, Pierce & Lynch, all of Madison, and oral argument by Thomas W. Pierce.

   Currie, C. J.

Defendant advances these contentions on this appeal:

(1) The fact that plaintiff worked for a period of ten months after the accident at the same job at which he was employed prior to the accident conclusively establishes as a matter of law that his disability was not continuous from the date of accident.

(2) The stiff left wrist and substantial loss of grasp in plaintiff's left hand does not qualify him as a person totally disabled within the definition of total disability set forth in the policy.

(3) Partial disability and total disability as defined by the policy are mutually exclusive, and, therefore, the trial court committed prejudicial error in refusing to instruct the jury as to the meaning of partial disability.

(4) The trial court further erred in failing to include welding as a former occupation of plaintiff when the court enumerated such former occupation in its instructions.

The pertinent policy provisions are as follows:

“Definitions of disability : The term ‘total disability,’ whenever used in this policy, shall mean complete inability of the insured to engage in gainful occupations for which he is reasonably fitted by education, training and experience. The term ‘partial disability,’ whenever used in this policy, shall mean the inability of the insured to perform one or more of his important regular business duties.
“A. Total disability — accident. If such injuries result in continuous total disability within ninety days from the date of the accident, requiring the regular and personal attendance of a licensed physician, the Company will pay the Monthly Indemnity during the continuance of such total disability, commencing on the first day thereof and for a period not exceeding thirty months for any one continuous disability. . . .
"Extended benefit rider — accident The Monthly Indemnity provided in Clause A of the attached policy for total disability from accidental bodily injuries shall continue beyond the period provided in such Clause so long as the insured lives and suffers continuous total disability, as defined in such policy, from the date of the accident. . . .”

Keeping in mind these policy provisions we will consider each of the four issues raised by defendant.

Effect of Ten Months’ Full-time Employment Subsequent to Accident.

As defendant points out, in order for plaintiff to recover under the extended-benefit rider of the policy, he must establish that he has been continuously totally disabled from the date of the accident, within the meaning of the policy definition of total disability. Even if plaintiff has been totally disabled since completion of his period of employment from April 11, 1960, to February 16, 1961, he cannot now recover total-disability payments if he was not totally disabled during this period of employment.

Defendant cites De Bonville v. Travelers Ins. Co. and Bader v. Travelers Ins. Co. as holding that this ten-month period of full employment of plaintiff conclusively establishes as a matter of law that he was not totally disabled during such period.

The material facts in De Bonville are these: Plaintiff insured, while employed in a consulting capacity by National Pressure Cooker Company, suffered a heart attack on November 6, 1951. He was insured by defendant insurance company under a group policy with his employer that provided certain benefits if he became “ ‘wholly disabled by bodily injuries or disease, and will be permanently, continuously, and wholly prevented thereby for life from engaging in any occupation or employment for wage or profit. . . .’ ” On or about October 1, 1953, the insured took employment as the salaried manager of another corporation, the Aloa Corporation, and continued in such employment until February 16, 1954, when he suffered a second heart attack. For reasons not here material his claim for total-disability benefits had to be grounded on the first heart attack of November 6, 1951. This court held that the insured’s employment by Aloa Corporation on a salary for several months after such first heart attack'prevented the insured from claiming physical inability for life to engage in any occupation for wage or profit.

The De Bonville Case is clearly distinguishable from the instant case even if it be assumed that difference in wording of the total-disability clauses of the two policies is not material. There was no showing made in De Bonville that the insured was unable to perform the managerial duties for which he was paid a salary while in the instant case there is testimony that plaintiff was unable to perform a substantial part of the duties of his job and it was necessary for other employees to assist him.

Bader v. Travelers Ins. Co., supra, involved an action to recover premiums paid on two life insurance policies which provided for waiver of premiums during the total disability of the insured. The policies defined total disability in terms of the language used in the De Bonville Case. Two of the years during which plaintiff insured claimed he was totally disabled were 1959 and 1960. He was president and owner of a company which acted as a manufacturer’s representative deriving income from commissions, rentals, and investments from May, 1959, through the year 1960. During this period the insured worked some hours each day and traveled in Milwaukee and to Racine and Kenosha. His income from these activities was $2,800 and $2,600 for 1959 and 1960, respectively. The insured submitted a medical report dated May 4, 1959, in which the physician stated his conclusion that the history and physical findings support restriction of the insured’s activities amounting to total disability. The court held for defendant and stated:

“The undisputed fact of plaintiff’s gainful employment during the years in question overcomes the claim of total disability for said period. The medical report speaks for the date of its execution. The medical opinion as to Mr. Bader’s total disability does not change the actual fact of his gainful employment. There is, therefore, no total disability within the terms of the policy.”

There appears to have been no showing made that the insured in Bader was unable to perform the services for which he received remuneration as in De Bonville. This distinguishes that case from the instant one.

Defendant also cites on this point two earlier Wisconsin cases, Saveland v. Fidelity & Casualty Co. of New York and Merrill v. Travelers’ Ins. Co. The Saveland Case is distinguishable from the instant case because of the obvious difference in policy language. In the Merrill Case the insured worked on a part-time basis for a while after the accident. The opinion states, “Total disability did not occur until October 20, 1893, about two months after the accident.” Because the court construed the policy as requiring total disability to occur immediately after the happening of the accident, the insured was held not entitled to recover policy benefits. There apparently was no showing that the insured was not able to perform his work during the period he worked part time.

There is an abundance of authority from other jurisdictions that a return to work does not prevent as a matter of law an insured from establishing that he is totally disabled within the meaning of the policy. In an annotation in 1 A. L. R. (2d) 756, which is confined to loss or impairment of vision within the meaning of total-disability clauses in insurance policies, reference is made to the cases which have considered the factor of the insured doing some work after the inception of disability, and the author states:

“It appears from these cases that the mere fact that the insured tried to do, or has done for a limited period, or at irregular intervals, some work, either in his usual occupation or in some other occupation, does not preclude the existence of such total disability . ...”

An individual may return to his former employment and continue in it for a limited time under a number of varying circumstances. He may be prompted to try working again in order to find out whether he is capable of performing the duties incident to such employment. The employer may allow him to continue at such employment and draw his salary or wages under circumstances where the compensation is largely a gratuity. Fellow employees or subordinates may help him perform some of the duties of the job where without their assistance he would be incapable of carrying on. Under such circumstances to adopt an arbitrary rule that any return to work for a period beyond that of a few days and receiving compensation therefor, conclusively establishes that the insured is not totally disabled, might work grave injustice. We reject adopting such a rule. The return to work and drawing of compensation is a factor to be considered by the trier of fact along with other evidence in determining the issue of total disability.

Is Plaintiff Totally Disabled Within Meaning of Policy?

It is defendant’s position that, in spite of the jury’s finding that plaintiff has been continuously and completely unable to engage in gainful occupations for which he is reasonably fitted by education, training, and experience since his accident of October 23, 1959, the evidence does not sustain this finding.

In interpreting the total-disability provisions and definitions in insurance policies the tendency of many courts has been toward a liberal rather than a strict interpretation. The annotation entitled, “When insured deemed to be totally and continuously disabled or unable to transact all business duties,” 98 A. L. R. 788, 789, states:

“The liberal rule, as shown in the earlier annotations, is that the ‘total disability’ contemplated by an accident policy, or the disability clause of a life policy, does not mean, as its literal construction would require, a state of absolute helplessness ; rather, that the disability contemplated means inability to do all the substantial and material acts necessary to the prosecution of the insured’s, or, in many instances, any, business or occupation, in a customary and usual manner.”

Total disability is a relative concept. What may totally disable a manual laborer may not totally disable a business executive, physician, or lawyer within the scope of a total-disability clause of an insurance policy. This is particularly true where the policy employs qualifying language equivalent to that of the instant policy which limits the occupations the insured is disabled from engaging in to those for which he is “reasonably fitted by education, training and experience.”

Plaintiff was born and raised on a dairy farm and was forty-one at the time of the accident. He is a high-school graduate who has never attended a college, university, or trade school. After graduation from high school he remained on the farm for six years, then, except for one year in the army, worked at a filling station for nine years. He then obtained a union permit to do ironwork and was engaged in that work until the time of his accident. His employment as an ironworker required him to do welding, cutting and burning of iron, setting and connecting steel columns, setting riggings, climbing ladders and doing much work above ground level which demanded the full use of both hands and arms.

Defendant claims that plaintiff’s employment for ten months after the accident at his former job clearly demonstrates that he could perform the duties of such employment.

But the evidence refutes defendant’s argument. Important testimony was given by Ellsworth Swenson, plaintiff’s supervisor at the Tomaro Construction Company, both before the accident, and for the ten months of plaintiff’s employment following the accident. Mr. Swenson testified that plaintiff was a good worker before the accident, but that after the accident he was unable to perform the necessary duties of his job. The following is an excerpt from Mr. Swenson’s testimony:

“A. Well there was many phases of the work that he couldn’t do after the accident. He couldn’t climb columns. It was almost impossible actually to crawl ladders and hang on and weld any type of work. He almost had to work on the ground itself or do errands, which we needed done on the ground at the time; other than that there wasn’t much he could do.
“Q. Is it a substantial part of the performance of an iron worker’s job that he should be able to work above ground level? A. You have to work all phases of it because at different times of the day or hour, in fact you have to either climb columns, ladders, and in order to weld or connect iron you have to be able to do everything at all times or you’re of no value to the company that you work for ... .
“Q. In your opinion as an iron worker for many years and from your observation of Mr. Harker after his accident, was he able to substantially perform the duties of an iron worker on the job under your supervision after his accident? A. No.”

Defendant also claims that plaintiff’s three months of employment as a plant mechanic for St. Mary’s Hospital indicates he was not totally disabled. Again there is evidence that refutes defendant’s argument. The testimony of Marvin Statz, plant superintendent at the hospital, indicates that plaintiff was totally disabled. Statz testified that plaintiff’s duties were general repair and maintenance, which “could include everything from changing a light bulb to repairing a radiator or steam plumbing.” Mr. Statz testified as follows:

“Q. Did you have an opportunity to observe Mr. Harker from time to time in the scope of his employment? A. Yes.
“Q. Was he able to substantially perform the duties of his job? A. No.”

Plaintiff’s employment as a salesman was clearly a failure as indicated by his minute income and being fired because he was unable to sell.

Plaintiffs background indicates that before the accident his life’s work had been one form or another of manual labor. He had never known any other type of work. There is ample evidence that the injury he has sustained now prevents him from engaging in manual-labor occupations for which he is reasonably fitted by education, training, and experience.

The foregoing resumé of evidence, together with that set forth in the initial statement-of-facts portion of this opinion, provides support for the jury’s finding of total disability.

Failing to Instruct with Respect to Partial Disability.

Defendant requested an instruction to the jury setting forth the policy definition of partial disability. The trial court refused to give the instruction. The requested instruction is predicated on the premise that the partial-disability and total-disability definitions of the policy are mutually exclusive and that if plaintiff qualifies under the partial-disability definition he is thereby excluded from qualifying for total-disability benefits.

The two definitions, if literally interpreted, are not necessarily mutually exclusive. The definition of partial disability is phrased in terms of a particular occupation while that of total disability includes any occupation for which the insured is reasonably fitted by education, training, and experience. Therefore, if accorded their literal interpretation, it is possible that a disability which prevents the insured from performing one or more of the important regular duties of business or occupation followed by him at the time of incurring disability might also disable him from engaging in any gainful occupation for which he was fitted by education, training, and experience. In such a situation an ambiguity would exist as to which of the two types of benefit payments the insured would be entitled. This would make applicable the often-invoked rule of construction that in case of ambiguity the policy should be construed against the insurance company which drafted it and the insured would be entitled to benefits for total disability rather than for partial disability.

Therefore, implicit in the definition of partial disability is the requirement that the disability be not so disabling in nature as to qualify the insured to benefits for total disability. Under this interpretation of the policy definition of partial disability an instruction which contained such definition would be irrelevant to the issues being litigated. Whether plaintiffs disability would also qualify as partial disability under the definition of the latter would be wholly immaterial. Plaintiff has made no claim to partial-disability benefits but seeks solely to recover benefits for total disability.

Failure to Include Welding as One of Occupations Plaintiff Had Pursued.

Defendant also complains of the instructions because of their omission of plaintiffs former occupation of welder. In instructing the jury as to plaintiff’s former occupations, the trial court stated:

“You are instructed that, in order for you to determine that Robert J. Harker is completely unable to engage in gainful occupations for which he is reasonably fitted by education, training, and experience, you must not only be satisfied by the greater weight of the credible evidence that he is completely unable to engage in farming, mechanics, or iron or steel work, which are the occupations in which he had actually worked and had some training and experience prior to his injury; . . .”

In light of the testimony at the trial that plaintiff did welding and burning in connection with ironwork, it hardly appears to be error for the trial court merely to fail to be more specific in his description of ironwork. We believe that the jury would have no difficulty in recalling that welding and burning were involved in plaintiff’s ironwork. Even if this omission is erroneous, we consider it highly improbable a different result would have followed if the error had not been made in view of the testimony that plaintiff after the accident required the assistance of fellow workmen in order to do welding.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.

       (1959), 7 Wis. (2d) 255, 96 N. W. (2d) 509, 97 N. W. (2d) 392.

       (D. C. Wis. 1962), 209 Fed. Supp. 479.

        Supra, footnote 1, at page 257.

       Id. at page 480.

       (1886), 67 Wis. 174, 30 N. W. 237.

       (1895), 91 Wis. 329, 64 N. W. 1039.

       Id. at page 334.

        Mutual Benefit Health & Accident Asso. v. Bird (1932), 185 Ark. 445, 47 S. W. (2d) 812; Joyce v. United Ins. Co. (1962), 202 Cal. App. (2d) 654, 21 Cal. Rptr. 361; Besh v. Mutual Benefit Health & Accident Asso. (1943), 304 Mich. 343, 8 N. W. (2d) 91; Weum v. Mutual Benefit Health & Accident Asso. (1952), 237 Minn. 89, 54 N. W. (2d) 20; Dittmar v. Continental Casualty Co. (1959), 29 N. J. 532, 150 Atl. (2d) 666; Thompson v. Aetna Life Ins. Co. (1935), 177 S. C. 120, 180 S. E. 880; Continental Casualty Co. v. Carlisle (Tex. Civ. App. 1965), 391 S. W. (2d) 98.

       1 A. L. R. (2d) at pp. 781, 782. See also 29A Am. Jur., Insurance, p. 634, sec. 1528.

       The following cases are all in accord: Mutual Benefit Health & Accident Asso. v. Bird (1932), 185 Ark. 445, 47 S. W. (2d) 812; Joyce v. United Ins. Co. (1962), 202 Cal. App. (2d) 654, 21 Cal. Rptr. 361; Dennis v. Business Men’s Assurance Co. of America (La. 1965), 175 So. (2d) 431; Crowe v. Equitable Life Assurance Society (1934), 179 La. 444, 154 So. 52; Buis v. Prudential Ins. Co. of America (1934), 229 Mo. App. 190, 77 S. W. (2d) 127; Dittmar v. Continental Casualty Co. (1959), 29 N. J. 532, 150 Atl. (2d) 666.

       Cases with comparable fact situations in which total disability was found are: Dennis v. Business Men’s Assurance Co. of America (La. 1965), 175 So. (2d) 431; Thompson v. Aetna Life Ins. Co. (1935), 177 S. C. 120, 180 S. E. 880; Continental Casualty Co. v. Carlisle (Tex. Civ. App. 1965), 391 S. W. (2d) 98.


author: Wilkie, J. Heffernan, J.

text:
    Metcalf, by Guardian ad litem, and another, Appellants, v. Consolidated Badger Co-operative, Respondent.

      October 6

    November 2, 1965.

      For the appellants there was a brief and oral argument by Michael Burns of Seymour.
    For the respondent there was a brief by Joyce & Gog gin of Neenah, and oral argument by Daniel R. Goggin.

       Motion for rehearing denied, with costs, on January 4, 1966.

   Wilkie, J.

Seven separate issues, some more important than others, are involved on this appeal. They are:

1. Is there credible evidence to support the jury’s finding of negligence as against Stephen ?

2. Is there credible evidence to support the jury’s apportionment of 70 percent of the causal negligence to Stephen?

3. Did the trial court commit prejudicial error in its instructions concerning the difference in the standard of care owed by the minor plaintiff and the defendant ?

4. Was the award of damages so grossly inadequate as to be the result of passion, prejudice, and perversity?

5. Was prejudicial error committed in allowing alleged improper remarks made by respondent’s counsel ?

6. Was it error for the trial court to refuse to submit the case to the jury on a safe-place theory?

7. Was it error for the trial court to refuse to permit inquiry on voir dire into jurors’ interest in the Travelers Insurance Company, the carrier of liability insurance for the defendant ?

We will consider these issues in the order stated.

Negligence of Minor.

Appellants contend that Stephen was free of negligence. Clearly there is evidence to sustain the jury’s verdict that Stephen was negligent in a qualitative sense when he played on the power conveyor. There was testimony that Stephen had played on the conveyor two or three days before the accident (though the conveyor chain was not running at the time) ; that Mr. Tierney, the manager, had told him “to get off the conveyor;” that on the same day Stephen’s mother had warned him not to play on the conveyor; that on the day of the accident Stephen and his companion played on the conveyor and rollers for ten minutes prior to the accident, climbing up the rollers and riding on the conveyor.

Appellants’ basic argument is that a child as young as Stephen was incapable of negligence due to his age (seven years, three months, and ten days). The legislature has given attention to this question and has determined that a child who has not yet reached the age of seven is incapable of negligence. Once he is seven he is capable of negligence though by a lesser standard of care than an adult. It is not for the court to tamper with the legislature’s determination that a child of seven can be negligent.

Apportionment of Negligence.

Appellants contend that the Badger Co-operative was guilty of greater causal negligence than was Stephen. We are satisfied that there was evidence of negligence on the part of both the boy and the defendant and that the apportionment of negligence between the two was properly a question of fact to be answered by the jury.

In apportioning negligence between an adult and a child the jury has to take into consideration the child’s age, capacity, discretion, knowledge, and experience. Appellants argue that Stephen acted the way any seven-year-old would have under the circumstances, and that the milk plant was guilty of greater negligence, pointing to (1) Stephen’s playmate’s (also age seven) actions, (2) knowledge on the part of the plant manager that children played on the premises, and (3) general knowledge in the business that children play on the dead rollers and conveyors as evidenced by testimony of other plant operators and warnings in dairy journals.

Apparently the jury, based on Stephen’s conduct just prior to the accident, his prior familiarity with the conveyor, the prior warnings given to him to get off the conveyor, concluded that Stephen should have been aware of the dangers inherent in machinery of the type involved here and that he should have taken steps to protect himself and to avoid the accident.

In view of the evidence we concur with the trial court, in its decision on motions after verdict, where it stated:

“On the question of comparative negligence it is felt that a typical issue of fact was presented. . . . The jury could believe, on credible evidence, that the boy was of such age and experience that he knew the hazards which faced him and, in the face of them, gambled for his own pleasure and entertainment. . . .”

Instructions on Comparative Negligence.

Appellants contend that the trial court committed prejudicial error in instructing the jury on the difference in the rule of negligence that applies to the defendant and to the minor plaintiff both in determining negligence, if any, on the part of Stephen and in comparing Stephen’s negligence with that of the defendant.

The trial court’s entire instruction on the question in the verdict concerning Stephen’s negligence was as follows:

“Question No. 3 of the verdict inquires whether Stephen Metcalf was negligent with respect to his own safety. He had a duty to exercise care for his own safety. The care which he was required to use depended upon his age, his capacity, his discretion and knowledge and experience. Negligence on the part of a child is failure to exercise that degree of care which is ordinarily exercised by a child of the same age and capacity and discretion and knowledge and experience under the same or similar circumstances. In determining whether Stephen Metcalf was exercising that care that one of his age, capacity, discretion, knowledge and experience would exercise under the same or similar circumstances due consideration should be given to the child’s instinct and impulses; for, while the child may have the knowledge of an adult respecting dangerou[s] acts, he may not have the prudence, or discretion or thoughtfulness to avoid hazards of risk to which he is exposed. It is for you to determine from all of the evidence, weighing it and considering it, what your answer to this question should be.”

On the comparison of negligence the trial court instructed:

“In determining your answer to the comparative negligence question you may bear in mind the difference in the rule of negligence that applies to the defendant and the plaintiff minor boy, and determine this question, No. 5, in the light of the difference in these rules which apply to these parties.” (Emphasis added.)

Appellants contend the latter instruction was erroneous because the court used the word “may” rather than “should.” Appellants did not properly preserve this alleged error for appeal. Appellants did not propose an instruction on comparative negligence, object to the instruction given, or allege that the instruction was erroneous in their motions after verdict. Consequently, appellants cannot now, as a matter of right, avail themselves of this alleged error as a basis for reversal. Nevertheless, in our discretion, we proceed to a consideration of this contention on its merits. The trial court should have instructed the jury that, in making its comparison of negligence, it “should” rather than “may” bear in mind the difference between child and adult negligence. Nevertheless, viewing the instructions as a whole, their net effect was to advise the jurors that they were continually to take account of Stephen’s age whenever they considered his actions, on the question of comparison in negligence as well as on the question of his causal negligence. Therefore, there was no reversible error committed by the trial court in this regard.

Damage Awards Not Grossly Inadequate.

Appellants contend that the award of damages was grossly inadequate and the result of passion, prejudice, and perversity. The $1,000 awarded for personal injuries and “none” awarded for future medical expenses form the basis of this contention.

The standard for this court’s review of damages is that where there is any credible evidence which under any reasonable view supports the jury finding, especially when the verdict has the approval of the trial court, it should not be disturbed.

The testimony shows that immediately after the accident Stephen was operated upon to connect the severed tendon and a skin graft was necessary to cover the wound. A piece of the severed tendon was missing so the tendon operation involved splitting the upper portion of the tendon so that it could be reversed and connected with the bottom piece of tendon. As a result of this operation the tendon is half its normal thickness at the injured area. This portion of the operation was considered very successful. The skin graft involved taking a full-thickness flap of skin from the buttocks and attaching it at the injured area.

After both procedures were completed, Stephen’s ankle was placed in a cast which he wore for about five weeks. When the cast was removed it was necessary for a second skin graft. Stephen was sent to Madison for this purpose. The operation there involved removing the prior skin graft and replacing it with a split-thickness skin graft from his left thigh. The operation was successful but the skin at the back of his ankle is not full thickness and his ankle does not have the fatty protection the normal ankle does.

Stephen testified that he could participate in sports, that he played normally with other children, and that his ankle was getting stronger all the time. He said that ulceration developed when he wore high shoes because they rubbed the injured area. He remedied this by wearing low shoes.

Two doctors testified respecting the prognosis of Stephen’s injury. With regard to the tendon, Dr. Raymond C. Groendahl’s testimony, on direct examination, was:

"Q. Now as to Stephen’s Achilles’ tendon at the present time, of the right extremity, can it be described as a normal tendon? A. No. It is an abnormal tendon because it would only be about half of the diameter that it was prior to surgery.
“Q. Is it true, doctor, that a normal tendon is designed to accommodate and cope with normal stresses and strains? A. I think so.
“Q. Does it follow that an abnormal tendon, half the normal size, is less strong and less durable than a normal tendon? A. I would believe there would be a loss of tensile strength, yes.”

On cross-examination:

"Q. As far as your operation on the tendon, that was a successful operation, wasn’t it? A. I believe so.
“Q. And the results were good, isn’t that correct? A. The results were good.”

On redirect:

“Q. Doctor, there is a well-healed result from the suturing of the tendon, isn’t that correct? A. Yes, I believe so.
“Q- The results are as good as could be expected? A. Yes.
“Q. But we do have a tendon that has less thickness than normal, and, accordingly, is less durable than a normal tendon? A. I would say it had less strength than normal.”

Dr. Frank Bernard, the plastic surgeon who performed the second skin graft, testified concerning future medical expenses as follows:

“Q. Is there any probability of future medical attention being required? A. I would say, within reason, if the area is quite well protected, by limiting his activities, he might get by without any further attention. If not he will require further attention.
“Q. Do you have an opinion, doctor, to a reasonable degree of medical certainty, and based on your having had Stephen under your care, and being familiar with his condition since the time you saw him in March, 1960, do you have an opinion to a reasonable degree of medical certainty as to whether the boy will require future medical attention? A. I do.
“Q. Will you state what your opinion is as to that? A. I would feel that, based on past history since the graft has been placed on his heel, and knowing that on several occasions ulceration has occurred- — -based on these facts I would assume, as far as the future is concerned, that perhaps repeated ulceration might occur. This would require medical attention.”

On cross-examination:

“Q. All this testimony as to possible future medical expenses, as you say, may be fifteen to thirty years from now ? A. That is correct.
“Q. That is purely speculative, isn’t it? A. No, sir. I believe that if the area is protected that he may well have no trouble. However, even with protection it still may break down.
“Q. You are in the realm now of possibilities, aren’t you? A. The difference between a possibility and probability, of course, arises. I would like to state that—
“Q. I would like to have you answer my question. A. You want me to answer yes or no — probability?
“Q. Possibilities? A. I would say yes, possibility.
"Q. Now, doctor, as a matter of fact from the sites where the skin was removed for the skin graft there is no resulting disability there, is there? A. None other than the scar.”

Given the foregoing testimony the jury could have concluded that future medical expenses were not probable, so there is testimony to sustain the “none” award for future medical expenses. One thousand dollars does not seem like very much for personal injury but the jury could have concluded from the testimony that there is no permanent injury and that $1,000 reasonably compensated Stephen for his pain, suffering, and so on.

Appellants urge that the low damages awarded, taken in combination with the apportionment of negligence against Stephen, bring the case within Mainz v. Lund. The injured girl in the Mainz Case was four and one-half years old when she was struck by defendant’s auto so only the defendant’s negligence and her injuries were in issue. The jury found the driver not negligent. Upon reviewing the physical facts, including skid marks, the court concluded that “the great weight of the evidence tends to establish negligent speed on Lund’s part,” but that there was credible evidence to sustain the jury verdict so the court could not change the answer.

As to damages, the young girl was awarded $16,000 but received severe permanent damages, including brain damage which caused emotional problems and spasticity in her left arm. The girl was unconscious for nineteen days, received multiple fractures and other injuries. The court said:

“The awarding of inadequate damages is not in itself grounds for ordering a new trial where a jury has answered other questions in the verdict so as to find no liability on the part of the party charged with negligence. Cf. Sell v. Mil waukee Automobile Ins. Co. (1962), 17 Wis. (2d) 510, 519, 520, 117 N. W. (2d) 719. Nevertheless, when the finding of no liability is against the great weight of the evidence, the added element of inadequate damages may have significance in determining whether a new trial should be ordered in the interest of justice.”

The court further said:

“As a result of reading the record in this case, we have a strong feeling that the verdict returned resulted in a miscarriage of justice.”

Consequently, a new trial was ordered under sec. 251.09, Stats., in the interest of justice.

The instant case is not governed by Mainz v. Lund. In Mains, no negligence was found against the defendant driver whereas here the defendant was found 30 percent negligent. In Mainz, the damages were shockingly low in the face of medical testimony that the injuries were severe and left many serious permanent residuals.

Although we agree with the trial court here that “the damages are small,” we also concur that “they are not sufficiently inadequate to call for the court’s interference,...”

Moreover, although the result of the jury’s comparison of the causal negligence is to free the defendant of any liability, as stated in Sell v. Milwaukee Automobile Ins. Co.:

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

Improper Arguments.

Appellants did not object to, or make a timely motion for mistrial based on the alleged improper remarks made by respondent in oral argument, so we cannot now consider whether such remarks were improper and, if improper, were prejudicial.

Was Not Saje-Place Case.

Appellants contend that it was error for the trial judge to refuse to submit the case to the jury on a safe-place theory as well as an attractive-nuisance theory. This would permit the jury to decide whether Stephen was a trespasser or a frequenter and then proceed on the appropriate theory. A frequenter is defined in sec. 101.01 (5), Stats.:

“The term ‘frequenter’ shall mean and include every person, other than an employe, who may go in or be in a place of employment or public building under circumstances which render him other than a trespasser.”

Even assuming the children were not trespassers upon the premises generally, there was no jury question as to their being trespassers with respect to the conveyor, so the judge properly concluded that the safe-place statute did not apply to Stephen.

Questioning During Voir Dire.

Appellants contend that the court erred by refusing to permit inquiry on voir dire into jurors’ interest in the Travelers Insurance Company. There was no error in this refusal. The insurance company was not a party so ordinary policyholders or shareholders would not know of any interest they might have in the case. Names of officers and directors can be obtained in the office of the commissioner of insurance. An inquiry into the occupations and places of employment of jurors would have disclosed whether any were agents or employees of the insurance company in question. Given these factors, and in the absence of any good-faith showing that appellants had good reason to believe a member of the panel had a financial interest in the insurance company that might disqualify him, it would have been improper to interject insurance into the case during the voir dire.

By the Court. — Judgment affirmed.

Heffernan, J.

(dissenting). I would reverse in the interests of justice pursuant to the discretionary power granted to this court by sec. 251.09, Stats. Two factors combine to lead me to this conclusion. In the first place, the damages for personal injuries that were awarded to this child were acknowledged by the trial judge to be small. I believe them to be so low as to be indicative of possible prejudice or perversity. While under the ordinary circumstance, this would be a matter that I would leave strictly to the jury, in this case these low damages are coupled with an inadequate instruction in regard to comparative negligence.

My brethren agree that the court’s instruction that the jurors “may” bear in mind the difference in the standards required of a child as contrasted to an adult was erroneous. The instruction ought to have positively stated that the jury should bear in mind those differences. Nonetheless, the majority concludes that these instructions, though erroneous, were not prejudicial.

I would agree if there had not been evidence of prejudice in the award of damages. Bearing in mind the combination of these circumstances: The extremely low verdict and an erroneous instruction, it is my opinion that justice has not been done, that issues were hot properly considered by the jurors, and I would, therefore, reverse in the interests of justice, with the direction that a new trial be ordered.

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

       Sec. 328.44, Stats.

        Granger v. Mutual Service Casualty Ins. Co. (1963), 19 Wis. (2d) 302, 120 N. W. (2d) 140; Davis v. Skille (1961), 12 Wis. (2d) 482, 107 N. W. (2d) 458; Kraskey v. Johnson (1954), 266 Wis. 201, 63 N. W. (2d) 112.

        Rossow v. Lathrop (1963), 20 Wis. (2d) 658, 663, 123 N. W. (2d) 523.

        Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 80 N. W. (2d) 380.

        Blahnik v. Dax (1963), 22 Wis. (2d) 67, 76, 125 N. W. (2d) 364. Wis J I—Civil, Part II, 1582.

         Willenkamp v. Keeshin Transport System, Inc. (1964), 23 Wis. (2d) 523, 127 N. W. (2d) 804; Zweifel v. Milwaukee Automobile Mut. Ins. Co., ante, p. 249, 137 N. W. (2d) 6.

         Springen v. Ager Plumbing & Heating, Inc. (1963), 19 Wis. (2d) 487, 120 N. W. (2d) 692; Erdmann v. Milwaukee Automobile Mut. Ins. Co. (1963), 20 Wis. (2d) 439, 122 N. W. (2d) 430. See also 16 A. L. R. (2d) 3.

        Michalski v. Wagner (1960), 9 Wis. (2d) 22, 100 N. W. (2d) 354; Baier v. Farmers Mut. Ins. Co. (1961), 15 Wis. (2d) 111, 112 N. W. (2d) 197; Bleyer v. Gross (1963), 19 Wis. (2d) 305, 120 N. W. (2d) 156.

       (1963), 18 Wis. (2d) 633, 119 N. W. (2d) 334.

       Id. at page 643.

       Id. at page 645.

       Id. at page 644.

       (1962), 17 Wis. (2d) 510, 519, 117 N. W. (2d) 719, and cases cited therein.

        Kink v. Combs, ante, p. 65, 135 N. W. (2d) 789; Zweifel v. Milwaukee Automobile Mut. Ins. Co., ante, p. 249, 137 N. W. (2d) 6.

        Filipiak v. Plombon (1962), 15 Wis. (2d) 484, 113 N. W. (2d) 365; also Mixis v. Wisconsin Public Service Co. (1965), 26 Wis. (2d) 488, 132 N. W. (2d) 769.