author: SCHUDSON, J. FINE, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Danny A. Reynolds, Defendant-Appellant.
    Court of Appeals

      No. 01-0498-CR.

      Submitted on briefs November 7, 2001.

      Decided December 4, 2001.

    2002 WI App 15
    (Also reported in 643 N.W.2d 165.)

      On behalf of the defendant-appellant, the cause was submitted on the briefs of Peter M. Koneazny, assistant state public defender.
    On behalf of the plaintiff-respondent, the cause was submitted on the brief of James E. Doyle, attorney general, and Shunette T. Campbell, assistant attorney general.
    Before Fine, Schudson and Curley, JJ.
   SCHUDSON, J.

¶ 1. Danny A. Reynolds appeals from the judgment of conviction for second-degree sexual assault of a child, entered after revocation of probation, and from the circuit court order denying his subsequent motion for resentencing or sentence modification. He argues that he is entitled to resentencing because the judge who sentenced him after revocation, who was not the judge who presided over the trial and ordered his probation, erred in imposing a "severe" ten-year sentence without reviewing the trial testimony, the presentence investigation report, or the sentencing judge's "findings" from the original sentencing proceeding. Reynolds requests that this court reverse the order denying his motion; vacate the postrevocation judgment of conviction, and grant him resentencing.

¶ 2. We conclude that because the sentencing-after-revocation record does not reflect the sentencing judge's awareness of the information in the presentence investigation report, and of the factors the trial judge found significant in deciding that Reynolds' case was an exceptional one justifying the withholding of sentence, resentencing is appropriate. Accordingly, we reverse and remand for resentencing.

I. BACKGROUND

¶ 3. Reynolds was the executive director of the Open Door Community Center, a government-funded family services agency. In 1996, in a trial before Judge David A. Hansher, a jury found Reynolds guilty of second-degree sexual assault of a child, for his fondling of a thirteen-year-old boy who, following his mother's death, had been living with Reynolds.

¶ 4. At the sentencing on November 8,1996, after considering a presentence investigation report, the recommendations of counsel, letters and statements from various persons on behalf of Reynolds, and Reynolds' remarks, Judge Hansher placed Reynolds on probation for five years with various conditions, including that he perform two hundred hours of community service and serve six months in the House of Correction with work-release privileges. Judge Hansher noted that he was taking the unusual step of withholding sentence, rather than imposing and staying a sentence. Judge Hansher explained that the offense was "on the lower end of considering how outrageous it is," and further observed:

So even though it's a second!-] degree sexual assault, I will consider the circumstances, and I did hear the testimony during the trial, so I'm well aware of all the facts and circumstances.
... I think because of his lack of prior record and his involvement in the community, instead of having an imposed and stayed sentence, the Court is going to withhold sentence. I agree with [defense counsel] that if there's a violation here, I think a court would like to look at it, to view it rather than having him go off to prison. I think it should come back to court. I try to avoid withholding sentences because most likely if there's a problem, it's going to be in front of another judge who takes over this calendar and they say, ["]I know nothing about this case,["] and the argument is always made to me at felony judges' meetings, ["W]e impose and stay[ sentences.] We shouldn't withhold. ["] But I think there are exceptions and this is one of them. So I'm going to withhold sentence.

¶ 5. Reynolds appealed. During the pendency of his appeal, Reynolds' incarceration at the House of Correction was stayed and his probation was. held in abeyance. Reynolds then moved to Indiana where, according to his affidavit, he worked with community programs and was employed as a nurse in a nursing home and as a "home health care provider." However, following this court's affirmance of his conviction, see State v. Reynolds, No. 97-1129-CR, unpublished slip op. at 4 (Wis. Ct. App. Oct. 5, 1998), Reynolds did not report to his probation agent. Almost one year later, he was arrested in Indiana after being stopped for driving with an expired license plate. Reynolds then was returned to Wisconsin and his probation was revoked.

¶ 6. On March 9, 2000, sentencing after revocation took place before Judge Daniel L. Konkol. Judge Konkol had received the November 9,1999 court memo prepared by Reynolds' probation agent, recommending that Reynolds receive "the maximum term of incarceration consecutive to any sentence." Judge Konkol also heard from the prosecutor and defense counsel, both of whom commented on Reynolds, the victim, and the circumstances of the crime. The prosecutor recommended ten years in prison; defense counsel requested significantly less confinement — one year in the House of Correction, with credit for time already served, and one year of house arrest. Reynolds declined to address the court.

¶ 7. Sentencing Reynolds, Judge Konkol noted that he had listened to the comments of counsel and had reviewed the criminal complaint, the information, and the November 9, 1999 memo. Judge Konkol then recited the required sentencing criteria and commented: "First of all, in looking at the gravity of the offense, this is an extremely serious offense." (Emphasis added.) He added that "it's particularly aggravated because the victim was a vulnerable victim at age thirteen" whose mother had died and who had been "placed to live with the defendant and almost cut off from his family." (Emphasis added.) Rejecting the probation agent's recommendation for the maximum incarceration, twenty years, and accepting the State's recommendation for ten years in prison, Judge Konkol commented:

In looking at the character of the defendant, he has no prior record, and I think it's also important to note that while this matter was pending to today's date he still has not accumulated any new convictions since the time of the . .. original hearing where he was placed on probation.
The defendant apparently is someone who has done good works in the community. He is someone who has been attending college, so he's an educated person. He will be turning 49 next month. He's someone who apparently has a good work history.
In this circumstance, however, he was given quite a break by the sentencing judge to have probation with House of Correction time. He did not take advantage of that opportunity, and not only does it seem that[, according to the defendant,] the victim was to blame for ... this, but now also the Probation Department is to blame because they didn't go and seek him out in scouring the country to see where he may be.
Apparently . . . the appeals court must be at fault too because they didn't go and seek him out to tap him on the shoulder and tell him that his conviction was affirmed, so that... he better start reporting to the Probation Department.
My point is everybody else is responsible for Mr. Reynolds except Mr. Reynolds. That's not something this court is willing to entertain.. ..
... I think that he has to learn that society does not look favorably upon people that are not individually responsible, especially when he wants to be in work that would be assisting other people.
In looking at the need to protect the public, this is the type of situation where the defendant in effect gets convicted of this very serious offense and simply for the most part just walks away thinking there would be no consequence. That's very scary because that may encourage him to get involved in further criminal activity and do further attempts to make sure that victims feel that it's their fault so there might not even be any type of coming forward by victims to report what has been going on.
In looking at the gravity of the offense, the character of the defendant, the need to protect the public, I feel that confinement is necessary to protect the public from further criminal activity of the defendant. I feel he does need correctional treatment that's available only in confinement. I haven't heard one thing about any ... type of sexual offender treatment that he's undergone while he has been out of confinement. Looks like he really did not address those types of issues.

II. DISCUSSION

¶ 8. When considering a challenge to a sentence after revocation, we review both the original sentencing and the sentencing after revocation "on a global basis, treating the latter sentencing as a continuum [sic] of the first." State v. Wegner, 2000 WI App 231, ¶ 7, 239 Wis. 2d 96, 619 N.W.2d 289, review denied, 2001 WI 43, 242 Wis. 2d 545, 629 N.W.2d 784. Where the same judge presides at both proceedings, the judge "should reference the prior sentence" at the sentencing after revocation, id. at ¶ 9 n.3, but need not "restate the reasons supporting the original sentencing" because "we will consider the original sentencing reasons to be implicitly adopted," id. at ¶ 9. Where, however, a different judge sentences after revocation, we have no basis for assuming that the second judge has acknowledged or adopted the reasoning of the first, absent either an explicit statement to that effect or a record otherwise demonstrating that that is so.

¶ 9. In sentencing' after revocation, therefore, when the judge is not the one who presided at the original sentencing, it is particularly important that the judge, "[l]ike the appellate court,... be able to rely upon the entire record, including the previous comments at the first sentencing." Id. (emphasis added). And, in some cases, this may become all the more important where a trial has given the original sentencing judge a close view of the evidence.

¶ 10. As the supreme court observed many years ago, in a case where .the sentencing judge had not presided over the trial, when sentencing discretion is required; "there might be some reason for saying that the judge who pronounced the sentence should be acquainted with the circumstances of the case as disclosed at the trial, in order to award the proper degree of punishment." Pegalow v. State, 20 Wis. 61, 62 (1865). Here, particularly given Judge Hansher’s and Judge Konkol's significantly different comments on the severity of the offense, we are not satisfied that the sentencing after revocation was based on "accurate, complete and current information," see State v. Carter, 208 Wis. 2d 142, 157, 560 N.W.2d 256 (1997), and a full understanding of "the entire record, including the previous comments at the first sentencing," see Wegner, 2000 WI App 231 at ¶ 9.

¶ 11. While Judge Konkol's comments were well-considered in many respects, they reflected no recognition of the trial testimony, the presentence investigation report, or Judge Hansher's sentencing comments on the severity of the offense. That information was essential to a fair sentencing after revocation. After all, the criminal complaint and information could not convey the evidence subsequently presented at trial. And the probation agent's memo, prepared for the sentencing after revocation, did little more than summarize the case history; it did not provide the comprehensive study typically offered in a presentence report.

¶ 12. Judge Konkol, in a lengthy written decision denying Reynolds' motion for resentencing or sentence modification, carefully traced Reynolds' arguments and, with implicit reference to Judge Hansher's reasoning, attempted to reconcile the two proceedings. In part, he wrote:

[T]he defendant presented a different picture to the court at the post[]revocation sentencing hearing based upon his failure to maintain contact with the probation department and what the court perceived was an attempt to simply walk away from any responsibility for this offense. The court, therefore, was not bound to rely on the sentencing findings made by Judge Hansher, and its basis for departing from those findings is sufficiently set forth in the record.

While these comments have some merit, they still fail to allay our concerns in this case.

¶ 13. The supreme court has explained that "a circuit court should, in imposing a sentence at a resen-tencing proceeding, consider all information relevant about a defendant, including information about events and circumstances either that the sentencing court was unaware of at the initial sentencing or that occurred after the initial sentencing." Carter, 208 Wis. 2d at 146. It certainly is clear, therefore, that in sentencing after revocation, a court may determine that conduct following the first sentencing hearing casts a defendant in a very different light. See North Carolina v. Pearce, 395 U.S. 711, 723 (1969) ("[E]vents subsequent to the first trial. . . may have thrown new light upon the defendant's 'life, health, habits, conduct, and mental and moral propensities.'"); Denny v. State, 47 Wis. 2d 541, 545, 178 N.W.2d 38 (1970). Indeed, in some circumstances, such subsequent conduct could substantially alter a court's view of a defendant's character or danger to the community. Rarely, however, could subsequent conduct, resulting in revocation, allow for a reassessment of the severity of the specific criminal conduct for which a defendant was convicted and is being sentenced.

¶ 14. Therefore, while Judge Konkol was not "bound to rely" on all Judge Hansher's "sentencing findings" (and indeed, while Judge Hansher, in explaining why he decided to withhold Reynolds' sentence, anticipated the need for a subsequent court to evaluate Reynolds in light of whatever might have led to revocation), Judge Konkol was required to be informed of the trial record and Judge Hansher's assessment, based on the evidence, of the severity of Reynolds' crime. See Wegner, 2000 WI App 231 at ¶ 9; see also Denny, 47 Wis. 2d at 543 ("Reasons for sentencing are not findings."). Here, the record does not establish that Judge Konkol, at the sentencing after revocation, was aware of critical information conveyed by the trial testimony, the presentence report, and Judge Hansher's sentencing comments. See Denny, 47 Wis. 2d at 546 (holding that a court, when resentencing, "should have before it the transcript of the original sentencing and the reasons for the sentencing should appear therein," and noting "the importance of a copy of the presentence investigation, when used by the trial judge").

¶ 15. Accordingly, we reverse the postrevocation judgment of conviction and the circuit court order denying Reynolds' motion for resentencing or sentence modification. We remand for resentencing and, given the unusual circumstances of this case, we order that the resentencing be before Judge Hansher.

By the Court. — Judgment and order reversed and cause remanded with instructions.

FINE, J.

¶ 16. (concurring). Although I agree with the majority opinion, I write separately to decry what I see as the unfairness of a system of justice that is essentially random, and to suggest a possible solution. Wisconsin's Code of Judicial Conduct recognizes that judges have special responsibilities to help make the law more fair and more consistent: "As a judicial officer and person specially learned in the law, a judge is in a unique position to contribute to the improvement of the law, the legal system, and the administration of justice, including revision of substantive and procedural law and improvement of criminal and juvenile justice." SCR 60.05(2), Comment. This case is a prime example of inconsistency and unfairness. And it is not because the Honorable Daniel L. Konkol is "tougher" than the Honorable David A. Hansher. Au contraire.

¶ 17. First, the facts of this case. As the majority recounts, Danny A. Reynolds was convicted of touching the penis and nipples of a thirteen-year-old boy through the boy's clothing. According to the State's evidence, after the boy indicated that he wanted Reynolds to stop, Reynolds never touched the boy indecently again. Reynolds denied the accusation, and the pastor of the church that both Reynolds and the boy attended testified that the boy told him that " 'nothing happened'" when he was asked about the incident.

¶ 18. Following Reynolds's conviction by a jury, Judge Hansher pointed out during the sentencing hearing that there can be "various degrees of sexual assault":

There's cases that are outrageous. There are cases that are less outrageous. I'll put this, I agree, on the lower end of considering how outrageous it is. It involved the touching of the victim's nipples and also rubbing his penis over his clothing.

As the majority recounts, Reynolds's probation was revoked because he did not maintain contact with his probation agent. Reynolds was not revoked because he committed a new crime — either of a sexual nature or otherwise. Yet, Judge Konkol sentenced Reynolds to ten years in the Wisconsin State prisons.

¶ 19. At first blush, it might appear that the randomness about which I complain is the disparity in sentencing that one might expect from different judges applying the same criteria, but viewing the facts through their own lenses of experience and philosophy. In any system other than one vesting sentencing decisions in a machine or, as in the federal system, in machine-like sentencing guidelines, such disparity is expected. The only safeguard we have is careful appellate review to ensure that sentencing courts consider the appropriate factors. But, of course, mere application of the appropriate factors does not guarantee equality of result; almost any sentencing that is within the statutory range will be upheld as a permissible exercise of the sentencing judge's discretion as long as he or she applies the appropriate factors in an appropriate way.

¶ 20. Our system also permits disparate treatment of different defendants when they appear before the same judge. In my view, this case and State v. Ascher, No. 00-0426-CR, unpublished slip op. (Wis. Ct. App. May 8, 2001), http://www.courts.state.wi.us/html/ ca/00/00-0426.htm, which I describe below, are textbook examples of what is wrong with our criminal-justice system. They also light a path for reform.

¶ 21. In Ascher, the defendant was sentenced by Judge Konkol to two years in prison for the brutal beating, disfigurement, and rape of the defendant's wife. The following are excerpts from my concurring opinion in that case, where we upheld Judge Konkol's sentence, against the defendant's challenge that the two-year sentence was "too harsh":

According to a criminal complaint filed against Ascher by the Milwaukee County District Attorney, the victim was married to Ascher, and wanted to leave him but was afraid that he would beat her if she tried. Indeed, according to the criminal complaint, Ascher had beaten his wife brutally and often. He had also used a razor blade to carve his initials on one of her breasts, because, according to what he told her, he owned her and could kill her anytime he wanted.
The criminal complaint recites that one day in March, 1998, as she was making dinner, Ascher came up behind her and indicated that he wanted to have sex with her. When she demurred, he returned with a rope, tied her to a chair, yelled at her that he owned her, took her into their bedroom, tied her hands behind her back, and raped her. Afterwards, according to the criminal complaint, he "untied her and threw her naked into the garage and locked the door." She spent the night in the car.
Some two weeks later, again according to the criminal complaint, Ascher, angry at his wife for studying, "took a 3-pound hand weight and hit her in the lower back area which caused her legs to go numb and caused her to fall to her knees, at which point [Ascher] took the weight and hit her left ribs and hip." Several weeks later, he cut his initials into her breast while she was showering. Still later, over the Easter weekend, he hit her, kicked her, and threw her against a dresser because he was angry that she was studying.
The criminal complaint charged Ascher with false imprisonment, a Class E felony punishable by a maximum of two years imprisonment, see Wis. Stat. §§ 940.30 & 939.50(3) (e) (1997-98), and mayhem, a Class B felony punishable by a maximum of forty years imprisonment, see Wis. Stat. §§ 940.21 & 939.50(3)(b) (1997-98). The complaint did not charge any degree of sexual assault or battery.
On May 4,1998, Ascher's wife testified at a preliminary examination. An information was filed on May 7, 1998, and again charged Ascher with false imprisonment and mayhem. On March 3, 1999, the case was plea bargained.
In reciting the terms of the plea bargain, the prosecutor said that Ascher would plead "no contest" to the two-year felony of false imprisonment, and that the prosecutor would ask the trial court to dismiss the mayhem charge, the forty-year felony. He told the trial court that the victim, who was no longer married to Ascher, had "no objection" to the deal. The prosecutor explained that "this whole process had made [the victim] - she's very fearful of the process," explaining that circumventing the need for her to testify would "sav[e] her a lot of pain, both emotional pain and pain in having to relive what happened here." The prosecutor represented to the trial court that plea-bargaining the case was in the victim's "best interest."
The prosecutor also explained that in his view "the charge on count one is adequate to protect the interest of the community in that it is a felony," noting that despite all of the things Ascher did to his former wife, the prosecutor did not believe that Ascher was "a danger to anyone else in the community." He also explained that a defense-retained polygraph examiner had concluded that Ascher was telling the truth when he denied cutting his wife, although he conceded that polygraph evidence was not admissible in .Wisconsin courts.
The trial court accepted the plea bargain, took Ascher's no-contest plea to the false .imprisonment count, dismissed the mayhem charge, and ordered a presentence report, which the parties had jointly recommended. The presentence report is in the appellate record. It indicates that the person who wrote the presentence report "tried to contact [the victim], but calls were not returned." The report notes, however, that in one of her earlier statements the victim said that "she is fearful for her life, and afraid he will hurt her again," but that "she did not want anything bad to happen to her husband, she just wanted him to get some help."
The presentence writer reflected that she did not "get the impression that [Ascher] participated in the physical abuse" of his former wife, noting that the case seemed atypical of domestic abuse cases because "he did not appear to have any issues with power and control within the marriage" and because there were not the "numerous calls to police before charges are actually filed." Additionally, the writer noted that Ascher had, in the writer's word, "passed" the lie detector test, calling the lie-detector results "[o]ne of the most convincing facts" in support of her view that Ascher was not guilty.
The victim appeared at Ascher's sentencing. The prosecutor contradicted the implication in the presen-tence writer's report that the victim had failed to return her "calls":
I talked to [the victim] about that, and she said that sometime earlier this week, she received a voice message on her machine, at 9:45 a.m. from the presentence writer who said she needed to talk to [the victim] regarding this incident. But she needed to talk to her by two p.m. that day and that was the deadline.
Well, [the victim] works and goes to school and didn't get home until that evening, hours after apparently the deadline had passed. That's the only efforts the presentence writer made to contact her.
The prosecutor also explained to the trial court that the presentence writer never attempted to contact him, nor did she speak with any of the victim's friends or relatives who knew of the long history of abuse and had seen the bruises and scars. After reciting briefly what the victim had endured, the prosecutor opined that: "This is a case of an abused woman who fits the whole profile of an abused woman, especially a woman who is of a professional stature and is trying to keep up face in her profession, and at school and at work." The prosecutor also told the trial court that he believed that Ascher raped his wife and threw her naked into the garage, and that he had "no doubt that these incidents, as horrible as they were, actually did occur." He noted: "People don't treat animals that badly."
Although the prosecutor had told the trial court at the plea hearing that he had plea bargained the case in part because Ascher had done well on the defense-arranged he detector test, he now told the trial court that he believed that Ascher "has certain psychological aspects to his make up" that would enable him to "beat" a lie detector test.
The victim spoke to the trial court. I reprint her brief remarks in full:
Um, Your Honor, I'm not quite sure how to even go about starting there. Because I thought about talking about what had happened to me over the past year and a half and throughout my years of marriage and, um, you know, I look at it in the sense that if I say all the details and I say how it affected my life and I say how it affected my family, um, there's a self satisfaction that he gets.
And if I say I'm doing a great job working on a Ph.d. I'm teaching and I'm surviving, and it doesn't affect me, then it looks like, you know, whatever he did has no impact on my life and I just go on and walk away.
I lost a lot. I lost a man that I loved. A six year marriage. I've lost a second family. I've lost both people I considered dear friends to me because of him.
Um, I've lost self esteem, I've lost integrity. I have to explain scars to strangers, you know, renting an apartment, oh my gosh, what happened to your arms? Um, I have to, I mean I wanted children by the time I was thirty. I wanted a family. That was all something that I had hoped for.
Right now, one of my friends even said to me, how do you know after everything you've been through you can even have children? I don't know. Um, I didn't want to come forward. I didn't want anybody to know. Its embarrassing, its obscene. Its a reflection on me, um, its a reflection on his family. That's not fair to them.
Um, I don't think anything that happens today will make me feel better. I don't think there's anything I can recommend. I've been in counseling. It's going to take a lot for me to get my wits back about me. But all I can say is I don't want to see this happen to anybody else.
I don't want to see his family have to go through it again. And maybe some day he can make a better life for himself. That's all I have to say. Thank you.

Id. at 1122 (Fine, J., concurring). When Ascher addressed Judge Konkol before sentencing, Ascher denied the accusations and complained about the nightmare he had been through. Id. at 23.

¶ 22. Ascher was plea bargained. Judge Konkol dutifully accepted the prosecutors request that he dismiss the mayhem charge. This left Ascher with a maximum two years of prison exposure. Judge Konkol imposed the two years, but less than the maximum fine ($2,000 rather than $10,000) because he believed that Ascher does have some positive aspects in his life. Id. at 24. As noted, we upheld Ascher's sentence over his objection that it was unduly harsh.

¶ 23. The bottom line to all of this is that Judge Konkol gave Reynolds a ten-year sentence for transient touching over clothing, but gave Ascher two years for crimes that are so horrific that they are off the scale.

¶ 24. If we are to have a system of justice that is fair and not random we must, in my view and although I have not been a supporter of sentencing guidelines in the past, install some system that will result in similar sentences for defendants with similar levels of culpability and recidivism potential. Further, and most important in my view, and I have written about this many, many times, we must eliminate plea bargaining. Plea bargaining permits expediency to trump justice; plea bargaining tramples fairness for the victim and, often, for the defendant. Unless we do both of these things (any form of sentencing guidelines without the elimination of plea bargaining moves discretion from the judge to the lawyers), we will never even approach a system of justice that ensures both that guilt shall not escape or innocence suffer. See Berger v. United States, 295 U.S. 78, 88 (1935).

       A judgment of conviction previously had been entered for this offense on November 8, 1996, following the initial sentencing hearing. That judgment is not at issue in this appeal.

       Reynolds also argues that the judge who sentenced him after revocation erred in basing the sentence on the "impermissible factor that he attacked his accuser's credibility at trial," and erroneously exercised discretion by: (1) ignoring the trial judge's "findings" regarding the severity of the offense; (2) basing the ten-year sentence on "unsupported and misleading representations that [he] was a serious re-offense risk"; and (3) placing undue emphasis on his failure to communicate with probation authorities, as an indicator of bad character. And Reynolds also argues that he received ineffective assistance of counsel who failed to raise some of these issues and confront some of these alleged misrepresentations at the sentencing after revocation.

       Resolving the appeal on this basis obviates the need to address Reynolds' other arguments, some of which may come to be considered at his resentencing. See Gross v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663 (1938) (only dispositive issue need be addressed).

       The judgment roll states, "Defendant is to serve 1 year less 8 days in the House of Correction," but, as reflected in the transcript of the November 8, 1996 sentencing hearing, Judge Hansher actually stated:
      The Court initially considered up to a year at the House of Correction.
      What the Court is going to do is still impose some House of Correction time with work-release. The Court is going to make it six months House of Correction with work-release instead of a year.
      The judgment roll error, repeated in the November 9, 1999 court memo prepared by Reynolds' probation agent for the sentencing after revocation, was noted by defense counsel; the memo's error was corrected by the sentencing-after-revocation court.

       The State does not dispute Reynolds' characterization of the probation agent's memo as: (1) "merely a report on his monitoring Mr. Reynolds' file and his unfounded judgment that Mr. Reynolds should be punished severely for not complying with probation rules"; (2) "mak[ing] no reference to familiarity with the facts of trial or the earlier sentencing proceedings or documents"; and (3) "no substitute for a [presentence investigation report]."

       We acknowledge, however, that because we are remanding for resentencing, Reynolds has the right to request judicial substitution. See Wis. Stat. § 971.20(7) (1999-2000) ("If an appellate court orders a new ... sentencing proceeding, a request [for substitution of judge] may he filed within 20 days after the filing of the remittitur by the appellate court, whether or not a request for substitution was made prior to the time the appeal was taken.").


source: Caselaw Access Project

author: Wilkie, J.

license: Public Domain

text:
    State ex rel. Humble Oil & Refining Company and others, Respondents, v. Wahner, Town Clerk, and others, Appellants. [Case No. 116.] Same, Respondents, v. Denissen, Building Inspector, Appellant. [Case No. 117.]

      September 2
    September 29, 1964.

      For the appellants there was a brief by Cornelisen, Denis-sen, Kransush & Kuehn, and oral argument by David J. Condon, all of Green Bay.
    For the respondents there was a brief by Rix, Kuelthau & Kuelthau of Milwaukee, attorneys, and Everson, Whitney, O’Melia, Everson & Brehm of Green Bay, of counsel, and oral argument by John C. Whitney and Robert E. Kuelthau.

   Wilkie, J.

The first question presented on this appeal is whether the zoning ordinance in effect at the time of the Humble petitions is valid.

In 1947, the town board of Allouez had the power to zone pursuant to authority of sec. 62.23 (7), Stats. This ordinance, like any zoning ordinance, is presumed to be valid and will be set aside only if its invalidity clearly appears.

The ordinance permitted filling stations in a commercial zone only if approved by the zoning board of appeals. When an ordinance vests discretionary power in administrative officials it must prescribe standards to guide their action. There are none set out in sec. V. The only guidelines contained in the ordinance are found in that portion of sec. XV, which provides:

“In interpreting and applying the provisions of this ordinance they shall be held to be the minimum requirements for the promotion of the public health, safety, convenience, prosperity or general welfare. . . .”

The crucial question is whether these provisions save the ordinance from being declared unconstitutional for failing to prescribe adequate standards to govern the board in its disposition of a request to build a filling station in a designated commercial zone.

Several Wisconsin cases have involved licensing or zoning ordinances that faced similar challenges. In Lerner v. Delavan an ordinance was held valid which required that a permit to run a junkyard be obtained from the common council but, in addition, specified that the applications for permits had to contain the applicant’s name, information as to the location and description of the premises, an explanation as to the type of business envisioned, and an enumeration of the materials to be handled. The court found that these provisions set forth sufficient standards to guide the council in evaluating applications for new junkyards.

In Wadhams Oil Co. v. Delavan the court upheld an ordinance that prohibited the operation of a gasoline station within 165 feet of the main street of the city without city council consent. Applicants were not required to submit any information in regard to the proposed station. The court found that the ordinance imposed upon the council the duty to exercise sound discretion in regard to one factor, traffic, which has made gas stations a proper subject for regulation.

In Smith v. Brookfield, another zoning ordinance, which called for the submission of the “location and plan of operation” to the board before the board would allow a particular use in an area, was sustained. The preamble declared that the ordinance was adopted—

“. . . in order to provide adequate light, pure air, and safety from fire and other dangers, to conserve the taxable value of land and buildings throughout the township, to avoid congestion in the public streets and highways and to promote the public health, safety, comfort, morals, and welfare, all in accordance with a comprehensive zoning plan; a

The court found that the statement of purpose announced in the preamble and the required approval of the “location and plan of operation” were sufficient norms to guide the board.

All three of these cases are distinguishable. The ordinance in Lerner incorporated several requirements as to what each junkyard application should contain, thus setting forth some vital guides to direct the council in its consideration of these requests. No such requirements were contained in the Allouez ordinance. The ordinance in Wadhams, by specifying the 165-foot distance from the corner within which no filling station was to be constructed without council approval, impliedly commanded the council to consider the one factor of traffic in reviewing requests for permits. The Allouez ordinance is completely silent as to any such factor to be considered. The preamble language as to basic purpose which was held to supply sufficient guidelines to the zoning board in Smith is much broader and more specific than the purpose language quoted from sec. XV of the Al-louez ordinance. Furthermore, in Smith the board was required to approve the “location and plan of operation” embracing the requested use.

Appellants also rely on Milwaukee v. Ruplinger wherein an ordinance was upheld which provided for the submission of all applications for junk-shop licenses to the mayor “who may grant or refuse to grant such license as to him may seem best for the good order of the city.” This standard was deemed adequate.

Such a standard as what may be deemed “best for the good order of the city” is not sufficient for the exercise of the wide discretion that may be vested in a zoning board to grant building permits for particular uses such as for filling-stations under the Allouez ordinance. Neither is the requirement of minimum standards met by that part of the section on “interpretation, purpose, and conflict” of the Al-louez ordinance that provides that “the provisions of this ordinance . . . shall be held to be the minimum requirements for the promotion of the public health, safety, convenience, prosperity or general welfare.” This is a listing of the factors that justify a zoning ordinance, but they are too general and too remotely related to what the board is required to do under sec. V (A) (3) to supply the necessary guidelines for administrative action. In Lerner, Wadhams Oil, and Smith, supra, each ordinance contained guidelines that pinpointed some of the considerations that were to govern the exercise of discretionary power either by the common council or the zoning board.

In Juneau v. Badger Co-operative Oil, a zoning ordinance was ruled invalid where it simply forbade the construction of a gasoline or bulk oil station within the city limits without first procuring the consent of the common council. The ordinance contained no standards and was held fatally defective for this reason.

Respondents rely on a Michigan case, which is virtually on all fours with the present facts. The ordinance in question provided for a “business” district but prohibited gasoline stations without the permission of the board of appeals after a public hearing. Other than a mention of public health, safety, and general welfare, no criteria were elaborated to guide the board. The court held the ordinance invalid, stating:

“The ordinance presented is fatally defective. The zoning board of appeals is simply given authority to permit, and obviously to refuse to permit, the erection of gasoline stations after public hearings. But what standards prescribe the grant or rejection of the permission? We find none. The ordinance is silent as to size, capacity, traffic control, number of curb cuts, location, or any other of the myriad considerations applicable to such business.”

A later Michigan case involved an ordinance forbidding the location of inns within the agricultural district without authorization of the board. Again there was no mention of definite guidelines, but merely a call to promote the public health, safety, morals, comfort, prosperity, and general welfare. These standards were found insufficient.

Other cases holding ordinances unconstitutional for failure to prescribe standards are: State ex rel. Selected Prop erties, Inc., v. Gottfried (excluded gasoline stations from retail business district without first obtaining a variance permit from the board of appeals); and Chicago, R. I. & P. R. Co. v. Liddle (prevented building of livestock pens within industrial district without authorization of board of adjustment).

Where a local zoning board of appeals is given authority to exercise discretion and judgment in the administration of a zoning ordinance, some standards must be prescribed for the guidance of the board in exercising the discretion and judgment with which it is vested. Where no such definite standards are written into the ordinance the door is opened “to favoritism and discrimination, a ready tool for the suppression of competition through the granting of authority to one and the withholding from another.”

Standards were needed in the Allouez ordinance, not only to guide the board but also to inform Humble and any other parties hoping to build filling stations of what was required of them and what factors were to be considered by the board in disposing of each application for a filling-station permit. Without standards both the board and Humble “were at sea without chart, rudder, or compass” and this was bound to create a situation in which the board could do just as it pleased.

The Allouez ordinance was defective in failing to prescribe proper standards to guide the board,” and is, therefore, invalid. Since the ordinance is void on this ground it is unnecessary to consider here Humble’s further attack on the ordinance on the ground that the ordinance attempted to single out filling stations in an unconstitutional classification. Furthermore, in view of the invalidity of that portion of the ordinance that required board approval of each filling-station permit in this commercial zone, it is not necessary to consider whether the trial court was in error in holding that the board action, in refusing Humble a permit, was nonetheless discriminatory, arbitrary, and capricious. For the same reason it is not necessary to consider the scope of new evidence that may be introduced in such a certiorari proceeding as was involved here and neither is it necessary to consider the various alleged errors on evidence questions pertaining to those proceedings.

The second issue on this appeal is whether the amended ordinance of March 4, 1963, completely prohibiting filling stations in this area, has any effect on Humble’s right to its permit.

Although Humble challenges this new ordinance on the ground that the town board continued an unconstitutional classification that discriminated against filling stations, it is necessary to consider this challenge only if the town may assert the new ordinance where it has been adopted a month after the certiorari and mandamus proceedings were commenced to contest the original ordinance and the zoning board’s action in denying the permit.

The trial court, relying on State ex rel. Schroedel v. Pagels concluded that the March 4, 1963, amendment to the ordinance—

“. . . is invalid as an unconstitutional and unlawful ex post jacto attempt to retroactively affect the pending cer-tiorari and mandamus proceedings, to the detriment of vested rights already acquired by Humble.”

Schroedel is distinguishable from the case at bar insofar as the question of vested rights is concerned. There the intended use was specifically allowed by the existing ordinance when the land was purchased and substantial outlay made. Then the ordinance was amended to shut out the proposed use. Here, the anticipated use was never flatly permitted; permission must first have been obtained from the board of appeals.

Generally, a building permit must be obtained before vested rights arise.

Other jurisdictions have held that construction must have begun, that merely applying for a permit, commencing a mandamus action, and even getting a mandamus judgment, are insufficient.

Although since its first petition in January, 1962, Humble had obtained an option on the subject property, had exercised the option, and had gone to considerable expense in developing plans for the development of the site, Humble had no vested rights as of the time when the new ordinance was passed by the town board.

But the fact that Humble did not have any vested rights at the time the new ordinance was adopted does not mean that the town could deny Humble a building permit on the ground that as of March 4, 1963, the new ordinance absolutely barred filling stations in the area. The failure of the town board under the 1947 ordinance to prescribe proper standards for the zoning board to consider in passing on requests for filling-station permits where such stations were allowed in such a commercial zone could not be patched up by the adoption of an amendment more than a year after Humble’s first petition for a permit and one month after Humble had started these court proceedings based on the ordinance in effect all during its one-year battle with the town zoning officials.

Equitable considerations bar the town from giving Humble such a fast shuffle at this late stage in the game. While Humble filed its petitions and its station plans and was turned down on each occasion without any notice from the board as to its reasons for denying the permit, the board approved a request for expansion in the facilities of one of the three filling stations already in existence on the other corners of the intersection. In January of 1963 a spokesman for the zoning board wrote Humble that if it could obtain the property directly east of the subject property for use in construction of the proposed station the board would approve the permit. Humble tried in vain to buy the property and its petition for a permit was categorically denied. In March, one month after the certiorari and mandamus proceedings were commenced, the town board decided absolutely to prohibit any filling stations in this area. Without considering the evidence introduced at the circuit court trial, it is apparent that the town officials were trying to keep one jump ahead of Humble and were attempting to change the rules after they had been haled into court for what Humble believed was arbitrary, unreasonable, and capricious action.

The situations in Schroedel and in the instant case are similar in that in both cases there was a last-minute effort by the city to zone out a use. In Schroedel, the court found that the city’s action was arbitrary and unreasonable. No less so was the town’s action here where the town made its eleventh-hour attempt to prevent Humble from obtaining a permit to build its filling station.

The equities here are much as they were in State ex rel. Lake Drive Baptist Church v. Bayside Village Board where the court held that whereas a church without a building permit did not acquire a vested right to construct a church on its building site by virtue of favorable intimations of a village board, its prior relationships with the village board, consisting of exchanges of correspondence in which village officials stated that the board was agreeable to the idea of a church on the mentioned site, “do provide strong equitable considerations for favorable zoning if at all reasonable.”

It would be manifestly unfair to allow the town board to cut Humble off in its quest for a building permit after the town has been taken to court to test the validity of its ordinance and the alleged arbitrary and unreasonable conduct of the zoning board in denying the permit. If the town’s contention is upheld it would be tantamount to approving the proposition that every time a party came close to successfully challenging a town and its zoning board on its zoning actions, his gains could be legislated away by the enactment of an amendment to the ordinance. Equitable considerations barred the lower court and bar this court from giving any effect to the March 4, 1963, amendment. Thus it is unnecessary to consider the merits of Humble’s challenge of the provisions of that amendment.

The third issue to be determined on this appeal is whether Humble is entitled to its writ of mandamus.

For the first time the town argues on this appeal that Humble did not comply with all the formal filing requirements of the zoning ordinance and that, therefore, Humble is not entitled to mandamus under any circumstances. It is apparent that the town is trying to lock the barn long after the horse has disappeared. Humble submitted a plan for the station which had been approved by the industrial commission. No evidence was produced by the town to show that any vital documents had not been filed.

Three times the board acted on a Humble petition for a permit. Any failure on the part of Humble to follow formalities was waived by the board’s three denials of the Humble applications, each time made without comment or stated reasons.

Since this court has concluded that the portion of the ordinance permitting filling stations but requiring board approval of each permit is invalid as to this attempted delegation of authority to the board, Humble had a clear legal right to the issuance of the requested permit and the appellant building inspector had a positive and plain duty to issue the permit. Under the circumstances Humble was clearly entitled to the writ of mandamus.

The fourth and final issue raised on this appeal is whether costs were properly allowed by the trial court against the board of appeals in the certiorari proceedings.

The certiorari judgment awarded costs to respondents.

Sec. 62.23 (7) (e) 14, Stats., provides that:

“Costs shall not be allowed against the board unless it shall appear to the court that the board acted with gross negligence or in bad faith, or with malice, in making the decision appealed from.”

Since the trial court made no finding of gross negligence, bad faith, or malice on the part of the board, the judgment, insofar as it allowed costs against the board in the certiorari proceedings, was in error and should be modified to correct that error. The town contends that the entire judgment should be set aside for this error. We think not.

By the Court. — Judgment in certiorari proceeding modified to eliminate taxation of costs against zoning board of appeals and, as so modified, affirmed; judgment in mandamus proceedings affirmed. Costs on appeals in both cases, No. 116 and No. 117, awarded to respondents.

        Smith v. Brookfield (1956), 272 Wis. 1, 74 N. W. (2d) 770; Geisenfeld v. Shorewood (1939), 232 Wis. 410, 287 N. W. 683; State ex rel. Newman v. Pagels (1933), 212 Wis. 475, 250 N. W. 430.

         Hobart v. Collier (1958), 3 Wis. (2d) 182, 87 N. W. (2d) 868; Juneau v. Badger Co-operative Oil Co. (1938), 227 Wis. 620, 279 N. W. 666; 62 C. J. S., Municipal Corporations, p. 434, sec. 226.

       (1930), 203 Wis. 32, 233 N. W. 608.

       (1932), 208 Wis. 578, 243 N. W. 224.

        Supra, footnote 1.

       272 Wis. at page 3, 74 N. W. (2d) at page 771.

       (1914), 155 Wis. 391, 145 N. W. 42.

         Supra, footnote 2.

        Osius v. St. Clair Shores (1956), 344 Mich. 693, 75 N. W. (2d) 25.

       Id. at page 700, 75 N. W. (2d) at page 28.

         Homrich v. Storrs (1964), 372 Mich. 532, 127 N. W. (2d) 329.

       (1955), 163 Ohio St. 469, 127 N. E. (2d) 371.

       (1962), 253 Iowa 402, 112 N. W. (2d) 852.

        Supra, footnote 9, 344 Mich, at page 700, 75 N. W. (2d) at page 28.

       (1950), 257 Wis. 376, 43 N. W. (2d) 349.

        State ex rel. Cities Service Oil Co. v. Board of Appeals (1963), 21 Wis. (2d) 516, 124 N. W. (2d) 809; Sun Oil Co. v. Clifton (1951), 16 N. J. Super. 265, 84 Atl. (2d) 555.

         Luts v. New Albany City Plan Comm. (1951), 230 Ind. 74, 101 N. E. (2d) 187.

       L. P. Marron & Co. v. River Vale Township (1959), 54 N. J. Super. 64, 148 Atl. (2d) 205; Gold v. Building Comm. (1939), 334 Pa. 10, 5 Atl. (2d) 367.

        Gay v. Lyons (1956), 212 Ga. 438, 93 S. E. (2d) 352.

        Ware v. Wichita (1923), 113 Kan. 153, 214 Pac. 99.

       In Vine v. Zabriskie (1939), 122 N. J. L. 4, 6, 3 Atl. (2d) 886, cited in Schroedel, supra, 257 Wis. at page 384, 43 N. W. (2d) at page 353, the New Jersey court in a case where the ordinance was changed after filing of an application for building permit, said: “Clearly this was an eleventh-hour attempt to prevent this relator from using her property for its highest use and for which it had been zoned for seven years, during which time its assessed value had been substantially increased because it was so zoned. Such action was ill-advised, capricious, and unreasonable. It was doubtless precipitated because of public excitement and clamor. Some of this opposition was likely based upon misinformation as to the plan of development contemplated.
      “However that may be, we are satisfied that the result was an arbitrary interference with the lawful and legitimate use of private property.”

       (1961), 12 Wis. (2d) 585, 108 N. W. (2d) 288.

       12 Wis. (2d) at page 603, 108 N. W. (2d) at page 298.

       Relying on State ex rel. Coffey v. Chittenden (1902), 112 Wis. 569, 88 N. W. 587.

        Neu v. Voege (1897), 96 Wis. 489, 71 N. W. 880.


author: Currie, C. J.

text:
    Laabs and wife, Appellants, v. Bolger and wife, Respondents.

      September 2
    September 29, 1964.

      For the appellants there was a brief by M. Wesley Kuswa, attorney, and Clarence P. Nett of counsel, both of Milwaukee, and oral argument by Mr. Kuswa.

      For the respondents there was a brief by O’Melia & Kaye of Rhinelander, and oral argument by Walter F. Kaye.

   Currie, C. J.

While other issues are raised by the parties, we deem it sufficient for the purpose of this appeal to confine this opinion to two issues:

(1) Are the findings of fact of the trial court with respect to defendants’ acts of adverse possession against the great weight and clear preponderance of the evidence?

(2) If such findings are not against the great weight and clear preponderance of the evidence, are such findings sufficient to support the judgment adjudicating title in the disputed parcel in defendants ?

There is printed herein a detailed drawing which depicts the disputed area with relation to Minocqua lake, the town road, the buildings and private driveways located on both the plaintiffs’ and defendants’ adjoining properties. The disputed area is that lying within the letters “A,” “B,” “C,” and “D.” The aforementioned tree line coincides with the line C-D. Defendants are record owners of a parcel of land 150 feet in width from north to south which is bordered on the west by the town road and on the east by the lake; the southern boundary of the record parcel is 85 feet north of, and parallel to, the south line of government lot 1, section 15, township 39 north, range 6 east. When the defendants obtained title to, and entered into possession of, their property about April 21, 1941, there was a summer home or cottage located thereon, but to the north of the disputed parcel. In 1943 plaintiffs acquired title to lands lying immediately to the south and north of defendants’ tract. The buildings and private driveway on the defendants’ land adjoining the disputed area were to the south of the tree line. While defendants, commencing in 1941, occupied their premises each summer, plaintiffs spent but a day or two each year on theirs from 1943 until 1958. Since 1958 plaintiffs have made their permanent residence on their land.

Defendants established by their own testimony, which was corroborated in part by other witnesses, the following facts: Defendants replaced the woven-wire fence which extended along the town road on the west side of the disputed parcel with a wooden fence; the lawn was fertilized, grass seed was sown, and the grass cut to the C-D line; six or seven pine seedlings and about 10 small poplar trees were planted along the C-D line starting about 20 feet east of the town road and extending eastward about 90 feet. Each year since 1941 more pine seedlings were planted along the C-D line until the present tree line extending from points C and D had been completed; later the poplars planted in 1941 were replaced with pines; since 1941 the grass has been kept mowed to the tree line; plaintiffs acquiesced in defendants’ use and occupation of the disputed tract by never voicing any objection thereto; plaintiffs never attempted to occupy or make any use of the disputed parcel.

Plaintiffs by their testimony denied that defendants had commenced the planting of the tree line in 1941 and stated that the tree line was not started until 1946. They produced a forestry expert who made test borings in 1961 of every fourth tree in the tree line to determine the age of such trees by their growth rings. Because the pine seedlings when planted were 12 to 15 inches high, he assumed they were three years old at time of planting. His computation was that the trees sampled had been planted from fifteen to twenty-one years at the time he made the test borings. This computation disclosed one sampled tree which had been planted twenty-one years, two which had been planted twenty years, and three which had been planted nineteen years.

The credibility and weight to be given to the testimony of plaintiffs and the forestry expert were for the trial court. Furthermore, defendants’ testimony, and that of one of their witnesses who assisted with the tree planting in 1941, is corroborated to some extent by a 1943 photograph.

It is apparent why plaintiffs acquiesced in defendants’ occupation of the disputed tract from the time plaintiffs bought their property in 1943 until the commencement of the action in January, 1962. Iron stakes had been set at points C and D at the time of a prior survey made before either defendants or plaintiffs purchased. In 1948, because of a road dispute not involving defendants, plaintiffs had one Hennig make a survey. This survey indicated the C-D line was the common boundary between defendants’ and plaintiffs’ properties. In 1960 defendants remodeled and extended northward a garage standing near the north boundary of their premises. Plaintiffs, believing the garage as extended encroached on their property which lies north of the defendants’ property, had the Genisot survey made. This survey apprised plaintiffs that they were owners of record title to the disputed parcel. The trial court found the Genisot survey to be correct. The detailed drawing printed herewith was prepared from this survey.

On our review of the record we have no hesitancy in holding that the trial court’s findings of fact with respect to acts of adverse possession, which were performed by defendants on the disputed parcel extending for more than twenty years, are not against the great weight and clear preponderance of the evidence. We also determine that such acts were sufficient in character and extent to constitute adverse possession within the meaning of sec. 330.09, Stats. While the disputed parcel was not protected by a substantial enclosure, it was cultivated or improved in the manner customary for summer-cottage property.

In the case of property, the use of which is seasonal in character, the fact that it is not continuously occupied does not militate against such occupation being sufficient to constitute adverse possession so long as it is exclusive. Kraus v. Mueller (1961), 12 Wis. (2d) 430, 440, 107 N. W. (2d) 467, 108 N. W. (2d) 560; and Burkhardt v. Smith (1962), 17 Wis. (2d) 132, 139, 115 N. W. (2d) 540. In the Kraus Case we quoted with approval from' the annotation entitled, “ ‘Adverse possession: Sufficiency, as regards continuity, of seasonal possession other than for agricultural or logging purposes,’ ” 24 A. L. R. (2d) 632, 633, as follows:

“ ‘The requirement of continuity of possession as one of the essential elements of adverse possession is satisfied, as regards activities which are seasonal in character (other than those relating to agriculture and logging), by the use of land commensurate with and appropriate to existing seasonal uses, needs, requirements, and limitations, having regard for the location and adaptability of the land to such uses.’ ”

With respect to the sufficiency of the character of defendants’ acts of adverse possession, the case of Burkhardt v. Smith, supra, is particularly in point. That case involved land in a lake resort area. The acts of adverse possession therein held sufficient to vest title consisted in building a cottage which encroached on the disputed area, clearing brush, reseeding grass and planting of trees. In the instant case defendants’ cottage was not located on the disputed area, but we deem this of little legal significance because of the requirement of sec. 330.08, Stats., that, “When there has been an actual continued occupation of any premises under a claim of title, exclusive of any other right, but not founded upon any written instrument or any judgment or decree, the premises so actually occupied, and no other, shall be deemed to be held adversely.” (Italics supplied.) The other features of possession by the instant defendants present a stronger case for establishing adverse possession in the statutory sense than in the Burkhardt Case. Here, commencing in 1941, not only was fertilizer applied and grass seed sown, but the lawn was mowed to a definite line, the C-D line. Furthermore, the trees planted by defendants were placed on this line.

For another summef-cottage case in which somewhat similar acts of adverse possession were held sufficient to vest title in the adverse possessor, see Laurin v. Wyroski (1963), 20 Wis. (2d) 254, 121 N. W. (2d) 764.

No explicit evidence of adversity is required since defendants’ acts of occupation extended over twenty years which raises a presumption of adverse possession. Northwoods Development Corp. v. Klement (1964), 24 Wis. (2d) 387, 393, 129 N. W. (2d) 121, and Illinois Steel Co. v. Budzisz (1914), 157 Wis. 16, 20, 145 N. W.212.

By the Court. — Judgment affirmed.

       This statute provides, “For the purpose of constituting an adverse possession by a person claiming title, not founded upon some written instrument or some judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only:
      “(1) When it has been protected by a substantial inclosure.

        “(2) When it has been usually cultivated or improved.”


text:
    Shelby Mutual Insurance Company, Appellant, v. Home Mutual Insurance Company and another, Respondents.

      September 2
    September 29, 1964.

      For the appellant there was a brief by Morrow & Garvey of Eau Claire, and oral argument by Frank L. Morrow.

    For the respondents there was a brief by Donald L. Farr of Eau Claire, and oral argument by Edward J. Byrne of Appleton.
   Currie, C. J.

Appellant-plaintiff raises two issues on this appeal:

(1) Was it prejudicial error for the circuit court to enlarge the time within which defendants might move for summary judgment?

(2) Was plaintiff’s cause of action barred by the statute of limitations ?

Enlargement of Time to Make Motion for Summary Judgment.

Sec. 270.635 (1), Stats., provides: “Notice of motion for summary judgment and the papers in support thereof shall be served within 40 days after issue is joined, subject to enlargement of time as provided in s. 269.45.” Since in the instant case, the issue had been joined more than two years prior to defendants’ application for enlargement of time, sub. (2) of sec. 269.45 is applicable. Defendants, therefore, are required to show that the failure to move earlier for summary judgment was the result of excusable neglect.

The affidavit of defendants’ counsel in support of the application for enlargement of time was dated July 29, 1963, and, among other things, alleged the following facts: The defendants heretofore moved to dismiss the complaint on the grounds that plaintiff’s claim was barred by the statute of limitations and that such motion was denied by the circuit court on September 11, 1962; the supreme court handed down a decision on June 4, 1963, in Haase v. Sawicki, 20 Wis. (2d) 308, 121 N. W. (2d) 876, which appeared in the July 12, 1963, issue of Callaghan’s Wisconsin Reports Advance Sheets, and that such decision had just been brought to affiant’s attention. The facts and law involved in the Haase Case are identical to those in the instant action. The fact that such case has been so recently decided constitutes, in affiant’s opinion, the excusable neglect necessary to enlarge the time under sec. 269.45, Stats.

We are satisfied that the foregoing facts stated in the affidavit sufficiently show the excusable neglect required by statute for the granting of an enlargement of time. The order of September 11, 1962, denying defendants’ motion to dismiss was a nonappealable order. Szuzska v. Milwaukee (1961), 15 Wis. (2d) 241, 243, 112 N. W. (2d) 699. Therefore, until this court’s holding in Haase v. Sawicki, supra, the moving by defendants for a summary judgment or taking other affirmative action with respect to its defense grounded on the statute of limitations, would have been a useless act. This is because the circuit court would in all likelihood have adhered to its prior ruling that plaintiff’s action was not barred by the statute of limitations.

In any event, plaintiff was not prejudiced by the enlargement of time within which to file a motion for summary judgment. The defense of the statute of limitations still stood in defendants’ answer and upon trial of the action the recent decision in the Haase Case would have required a final dismissal of the plaintiff’s complaint.

Statute of Limitations.

At the time the alleged wrongful death of Richard Peterson occurred, sec. 330.21 (3), Stats. 1959, provided a two-year statute of limitations for causes of action for wrongful death. This limitation period was repealed by ch. 650, Laws of 1961, which took effect on the day after its publication on January 30, 1962. This chapter created new sec. 330.205 (2), which prescribed a three-year statute of limitations for wrongful-death actions and by its terms was made retroactive as to any actions to recover damages for death caused by a wrongful act where the death resulted on or after July 1, 1955. Haase v. Sawicki, supra, held that this retroactive feature of this statute violated both the Fourteenth amendment, United States Const., and sec. 1, art I, Wisconsin Const., with respect to causes of action which had been barred by the running of the prior two-year statute of limitations at the time ch. 650, Laws of 1961, was enacted. As in the Haase Case, plaintiff’s instant action was commenced more than two years after the then applicable two-year statute of limitations had run, but less than three years after the occurrence of the alleged wrongful act which caused Richard Peterson’s death. Therefore, this case is clearly ruled by the Haase Case because the wrongful-death action of the widow had already been barred when the legislature enacted the new three-year statute of limitations.

Plaintiff attempts to surmount the hurdle of the holding in the Haase Case by contending that its right to bring the instant action under sec. 102.29 (2), Stats., is grounded on a separate cause of action created by sec. 102.29 (2) and not on the wrongful-death statute, sec. 331.03. The appellant in advancing this contention is aware that this case is on all fours with London Guarantee & Accident Co. v. Wisconsin Public Service Corp. (1938), 228 Wis. 441, 279 N. W. 76. Plaintiff is asking the court to overrule this case.

This court in the London Guarantee & Accident Co. Case held that third-party actions authorized by sec. 102.29, Stats., are derivative in character and are subject to the statute of limitations which is applicable to the cause of action which existed in favor of the workmen’s compensation beneficiary. That case, as well as this one, was grounded upon a cause of action for wrongful death. The plaintiff there contended that the two-year limitation was not applicable since the action was not brought by the personal representative of the deceased, but was an action to enforce an independent cause of action which was created under sec. 102.29 (2), and which became invested in the compensation insurer upon its payment of the award for death benefits. This court rejected such contention and stated (228 Wis. at pp. 444, 445):

“There is no provision in sec. 102.29 (2), Stats., which expressly creates any new responsibility or liability in tort for damages sustained upon the death of a person as the result of the wrongful act, neglect, or default of another. The effect of the amendment of sub. (2) of sec. 102.29, Stats., in 1931, so as to read—
“ ‘An employer or compensation insurer who shall have paid a lawful claim under this chapter for the injury or death of an employee shall have a right to maintain an action in tort against any other party responsible for such injury or death’—
“is but to authorize an employer or compensation insurer, who has paid such a lawful claim, to maintain an action in tort against ‘any other party responsible’ under some other statute or rule of law ‘for such injury or death.’ Inasmuch as no new or additional responsibility or liability on the part of such ‘other party’ is created or imposed upon that party by that amendment, it cannot be held that a new cause of action to recover on any such new or additional responsibility or liability was intended to be created by that amendment.”

With respect to the derivative character of a third-party action brought under sec. 102.29 (2), Stats., see also Employers Mut. Liability Ins. Co. v. Icke (1937), 225 Wis. 304, 307, 308, 274 N. W. 283.

In order to overrule London Guarantee & Accident Co. v. Wisconsin Public Service Corp., supra, it would be necessary to hold that third-party actions under sec. 102.29 (2), Stats., are not derivative in character but are independent causes of actions created by the legislature. To adopt this latter view seems to us indefensible. There is no reason why the period of the tort-feasor’s liability should depend on whether or not a claim is filed for workmen’s compensation against the injured party’s employer and workmen’s compensation carrier, and on whether or not workmen’s compensation benefits have been paid. In other words, acts of third parties over whom the tort-feasor has no control, which have occurred after the tort-feasor’s act creating liability, ought not determine the length of the limitation period during which the tort-feasor remains liable.

Furthermore, the holdings in the London Guarantee & Accident Co. v. Wisconsin Public Service Corp., supra, and Employers Mut. Liability Ins. Co. v. Icke, supra, Cases, are of such long standing that they import legislative acquiescence and acceptance of the principle that a cause of action brought under sec. 102.29 (2), Stats., is derivative in character.

By the Court. — Judgment affirmed.

Beilfuss, J., took no part.

       Sec. 269.45 provides:
      “(1) The court or a judge may with or without notice, for cause shown by affidavit and upon just terms and before the time has expired, extend the time within which any act or proceeding in an action or special proceeding must be taken, except the time for appeal.
      “(2) After the expiration of the specified period or as extended by any previous order, the court may in its discretion, for like cause, upon notice, extend the time where the failure to act was the result of excusable neglect; except the time for appeal.”

       For a critical view of the holding in the London Guarantee & Accident Co. v. Wisconsin Public Service Corp. Case, see note in 1939 Wisconsin Law Review, 330. This court is not persuaded by the argument therein advanced by the author of the note.


author: Hallows, J.

text:
    Gleisner, Executrix, Appellant, v. United States Fidelity & Guaranty Company, Respondent.

      September 2
    September 29, 1964.

      For the appellant there were briefs by William R. Schnepp, attorney, and H. F. Sonnenberg of counsel, both of Milwaukee, and oral argument by Mr. Sonnenberg.

      For the respondent there was a brief by Kluwin, Dunphy, Hankin & Hayes of Milwaukee, and oral argument by Gerald T. Hayes.

       Motion for rehearing denied, with costs, on November 24, 1964.

   Hallows, J.

The policy in question is a restricted and limited accident policy in its double-indemnity feature for injuries resulting in death. It provides the principal benefits shall be double if “such injuries are sustained by the insured: . . . (3) by collapse of the outer walls or the burning of a building if the insured is therein at the time of the collapse or commencement of the fire.”

The facts are few and simple. For several days prior to and on the morning of September 15, 1961, the deceased and her husband occupied one unit of a two-unit motel cabin at the Woodland Motel in Door county, Wisconsin. About 10 a. m. the owner of the motel, who was the only witness called at the trial, was in the main lodge washing dishes when he heard an explosion or blast and saw debris flying through the air. He saw no smoke. He immediately ran to the cabin occupied by the deceased some 200 feet away. As he reached the cabin and was opening the screen door the deceased opened the door of the cabin. She was naked, denuded of hair, burned, and orange in color. The owner helped the deceased to a nearby tree and dashed back to the cabin to ascertain the whereabouts of the husband.

Upon looking into the cabin he observed the back wall was completely blown out and the husband was out on the grass. The cabin was about 14 by 16 feet and the floor was covered with wall-to-wall carpeting. There was a fire around the double bed in the carpeting and in the bed clothes which were on the floor to one side of the bed. The top of the bed was not burning. After giving first aid to the deceased and her husband and calling the fire department, he attempted unsuccessfully to extinguish the fire in the cabin which was eventually totally destroyed.

The trial court was of the view there was no credible evidence from which it could be inferred the fatal injuries were caused by the burning of a building. The defendant and the trial court considered the carpeting was not a part of the building, while the plaintiff so considered it. Assuming wall-to-wall carpeting is a part of the building and not the contents within the meaning of the policy, the problem, as in most cases of this type, is one of causation and the sufficiency of proof. The language of the policy requires the injuries be caused by the burning of a building. Burning by an explosion or by fire of the contents is not enough. While the burning of a building need not be the sole or the exclusive causative agent or the cause of the injuries, the burning of the building must be the proximate cause or, as this court has explained such term, a substantial factor causing ■or a cause of the injury. A slight burn from an admitted burning building, while being an injury in its own right, might not be sufficient to be a substantial factor or a cause of death.

It has generally been considered that the fire meant by the policy is one which in the course of burning a building or a part thereof is communicated to the insured and thereby injures him. Many courts have construed similar or identical language in accident policies. This problem is the subject of an annotation entitled, “Effect of provision for coverage or double indemnity in case of injury or death in consequence of burning of building,” 55 A. L. R. (2d) 398.

The appellant claims the language of the policy is ambiguous on causation and therefore it may be disregarded. We do not find it so nor have other courts. See: Pacific Mut. Life Ins. Co. v. Walt (1955), 198 Tenn. 59, 277 S. W. (2d) 434, 55 A. L. R. (2d) 392; Houlihan v. Preferred Accident Ins. Co. (1909), 196 N. Y. 337, 89 N. E. 927, 25 L. R. A. (N. S.) 1261. The appellant’s difficulty comes from seizing various phrases in the policy out of their context and grouping them into a sentence which as such does not appear in the policy. Nor can we agree with the appellant that this policy provides coverage for accidental injuries from any fire while in a building. Proof of the burning of a building whether contemporaneous with or subsequent to the injuries of the plaintiff is not sufficient to ground recovery without some evidence from which a reasonable inference can be drawn that the injuries were caused in whole or in part by the burning of the building. 10 Couch, Insurance (2d ed.), p. 202, sec. 41:179.

Injuries caused solely by flash fires or explosions are not covered by the burning-building clause of the policy. However, if an explosion caused the burning of the building and the effect of the explosion on the insured is not instantaneous and the injuries received by the insured are proximately caused in whole or in part by the subsequent burning of the building, recovery has been allowed under the policy. Aetna Life Ins. Co. v. Smith (5th Cir. 1927), 19 Fed. (2d) 140; Aetna Life Ins. Co. v. Aird (5th Cir. 1939), 108 Fed. (2d) 136. But one injured by an explosion which currently or thereafter starts a fire in the building is not covered under such policies when the concurrent or subsequent fire is not a cause of the injury. Maryland Casualty Co. v. Edgar (4th Cir. 1913), 203 Fed. 656; Bobco v. Metropolitan Life Ins. Co. (1962), 367 Mich. 645, 116 N. W. (2d) 871; Farley v. Aetna Life Ins. Co. (1918), 200 Mo. App. 460, 207 S. W. 281; Provident Life & Accident Ins. Co. v. Brooks (5th Cir. 1948), 170 Fed. (2d) 909; L’Ecuyer v. Indemnity Life & Accident Co. (1916), 97 Kan. 540, 155 Pac. 1088; Kreiss v. Aetna Life Ins. Co. (1920), 229 N. Y. 54, 127 N. E. 481.

In Maryland Casualty Co. v. Edgar, supra, fatal injuries were received by the insured in attempting to ascertain the condition of a darkened basement which had been flooded. Gasoline had spread over the surface of the water and the explosion occurred when the insured lighted and threw down a match. There was testimony death was caused by inhaling fumes of gasoline. In Bobeo the deceased was painting the inside of a tank and was injured by an explosion of the paint fumes. In Farley an electric flash was caused by a short circuit in a switchboard on which the decedent was working. Although the switchboard, considered a part of the building for the purpose of the decision, was scorched, the court held the injuries were proximately caused by the flash, not from the burning of the building. In the Kreiss Case the insured had cleaned gloves in gasoline and was drying them over a fire. An explosion resulted and the insured’s clothes caught afire as well as the rest of the room. The court held no cause or connection had been proved in matters of time, proximity, or sequence between the fire and the injury.

In the L’Ecuyer Case an explosion occurred while the insured was filling a gasoline can from a pump. The insured was seen running from the building with his clothes aflame and at the same time part of the building in which the gasoline tank was located burst into flames. It was considered that since the burning of the building did not precede the explosion, the explosion was the cause of the accident. In the Provident Case an explosion occurred in a gas heater when the insured lit a match and within a minute or two the insured was led from the apartment with his body covered with burns. Although there was evidence the contents and some of the window frames were burned, it was held the evidence was insufficient to permit a conclusion that death resulted from the burning of the building.

In some cases allowing recovery the question of proximate cause was not discussed or the court thought the evidence was sufficient to sustain an inference of causation. See Hiatt v. Travelers Ins. Co. (1924), 197 Iowa 153, 197 N. W. 3; Messervey v. Standard Accident Ins. Co. (2d Cir. 1932), 58 Fed. (2d) 186; Wilkinson v. Aetna Life Ins. Co. (1909), 240 Ill. 205, 88 N. E. 550; White v. Washington National Ins. Co. (1938), 133 Neb. 805, 277 N. W. 69. There are many other cases on the problem but the foregoing citations are sufficient for the purposes of this decision.

In the instant case there is no evidence of a fire to the building preceding the explosion. The only witness testifying stated there was no smoke at the time of the explosion. We must take the facts then to be that the fire was caused by the explosion. The only fire testified to was in the carpeting around the bed and the bed coverings on the floor. We believe it is contrary to human experience for a person to be denuded of hair, to be burned over 80 percent of her body and to be discolored orange by a fire in the carpeting around the bed in the time it takes a man to run some 200 feet when that fire is preceded by a severe explosion. The only witness stated he did not know how the deceased was burned, only that she was burned. The preponderance of the evidence and the most probable inference from the evidence are that the deceased was burned by the explosion. This is not determinative, however, if the jury could reasonably draw an inference the deceased was sufficiently burned by the fire which burned the cabin so that such a fire was a cause of her death. We think the jury could infer such a causation only as a possibility, not as a probability.

The trial court allowed interest only from the date of the order for judgment. The plaintiff claims she is entitled to interest from the date of death. However, the policy provides that payment of claims is made upon proof of loss which must be made within ninety days from the date of the loss. The defendant also asserts no demand for payment of the principal amount separate from the double-indemnity amount was ever made. There is no pleading or proof in the record that any proof of loss or demand for payment was made by the plaintiff prior to the commencement of this suit. Likewise the amended pleadings do not show the defendant relied on lack of proof of loss as a defense. Under these circumstances the commencement of the suit is the equivalent of a demand and the requirement of a proof of loss is waived.

The principal amount of indemnity was liquidated and not in dispute. The defendant if it wished to save itself the payment of interest might have tendered payment of the principal and kept the tender good. The interest should run from the date of the commencement of the suit.

By the Court. — The judgment is modified to allow interest from the commencement of the action and, as so modified, affirmed. The defendant is to recover costs.


author: Gordon, J.

text:
    Estate of Bletsch: Bletsch, Appellant, v. Barth, Excutor, and another, Respondents.

      September 2
    September 29, 1964.

      For the appellant there were briefs and oral argument by Michael J. Dunn of Milwaukee, and Philip G. Brennan of Chicago, Illinois.
    For the respondent Barth there was a brief by Randall, Zimmers, Randolph & Randall of Milwaukee, and oral argument by Wilke M. Zimmers.

    For the respondent Shriners’ Hospital for Crippled Children there was a brief by Mount & Keck of Milwaukee, and oral argument by Herbert L. Mount.

   Gordon, J.

The trial court analyzed the evidence and determined that the testator’s purpose was “to help crippled children through Masonic charitable organizations of the state of Illinois.” The following conclusion of law was entered:

“That the only organization whose operations closely reflect the intent of the deceased is in the ‘Shriners Hospital for Crippled Children’ located in Chicago, Illinois.”

The designated beneficiary in the instant case is nonexistent; this gave rise to a latent ambiguity which made it appropriate to examine the extrinsic evidence. In Estate of Gibbs (1961), 14 Wis. (2d) 490, 496, 111 N. W. (2d) 413, this court explained that there are two classes of latent ambiguity:

“One, where there are two or more persons or things exactly measuring up to the description in the will; the other where no person or thing exactly answers the declarations and descriptions of the will, but two or more persons or things answer the description imperfectly. Extrinsic evidence must be resorted to under these circumstances to identify which of the parties, unspecified with particularity in the will, was intended by the testator.”

The trial court had before it the testimony of Mr. Koer-ner, who described the origins of the language which was later used by the testator in his will. The extrinsic evidence also included a description of the physical disability of the testator’s daughter.

The appellant urges that the instant case is controlled by Tharp v. Seventh Day Adventist Church (1923), 182 Wis. 107, 195 N. W. 331. There the gift was to the “Seventh Day Adventist Church” for use in publishing and distributing literature of the church. Evidence was received in that case which demonstrated that the Seventh Day Adventists constituted a religious denomination with numerous “conferences.” Although there were two incorporated “conferences” in Wisconsin holding title to church property, the testator was not a member of either. The court held that it was impossible to determine which group the testator had in mind, and therefore the bequest failed. Similarly, in the instant case, appellant argues that it is impossible to determine which group Jack Bletsch intended to benefit.

The findings of the trial court in the case at bar are different from those in the Tharp Case. Here the trial court found that there was a distinct charitable purpose on the part of the testator and, using the will and the extrinsic evidence adduced, it found that the Shriners’ Hospital for Crippled Children was the only one which closely reflected the testator’s plan. In our opinion, this finding is not against the great weight or clear preponderance of the evidence.

The trial court applied the cy pres doctrine. That doctrine, as defined in Saletri v. Clark (1961), 13 Wis. (2d) 325, 329, 108 N. W. (2d) 548, is this:

“Very briefly stated, when a charitable purpose cannot be fulfilled according to its terms, equity will attempt to do the next-best similar charitable thing. That is the cy pres doctrine.”

The appellant urges that the cy pres doctrine is not applicable in Wisconsin. We recognize that this contention is supported in a number of earlier Wisconsin decisions. For example, in the Tharp Case, Mr. Chief Justice Vinje stated flatly, at page 112: “In our state the doctrine of cy pres does not obtain.” One of the cases relied upon in the Tharp Case is Harrington v. Pier (1900), 105 Wis. 485, 82 N. W. 345. The Harrington Case, however, falls considerably short of sustaining the broad, sweeping statement as to cy pres contained in the Tharp Case. In the Harrington Case, the court said, at page 503 :

“When it is said that the doctrine of cy pres does not prevail in this state, that does not refer to those liberal rules of judicial construction of charitable trusts, by courts of equity, which prior to the statute of Elizabeth were applied in chancery, and of which such statute is only confirmatory, but to the prerogative power exercisable where such statute prevails. Courts here, as anciently, look with favor upon all donations to charitable uses, and give effect to them where it is possible to do so consistent with rules of law, . . .”

In England, at common law, there were two doctrines of cy pres. One was judicial cy pres; the other was known as prerogative cy pres. Under the latter doctrine, the king, in the exercise of his prerogative power, could, in certain cases, ignore a testator’s intention and dispose of a man’s property as the king wished. There was no duty on the part of the king (other than moral) to honor the testator’s wishes. It is this prerogative doctrine of cy pres which has been disavowed in the United States.

The distinction between prerogative cy pres and judicial cy pres is significant because in the former the purposes to which the king might apply the property could be diametrically contrary to the intentions of the decedent; however, in judicial cy pres the court’s principal burden was to effectuate as closely as possible the testator’s plan. We doubt that the courts of Wisconsin ever truly intended to disavow judicial cy pres.

That the rejection of the cy pres doctrine was limited to the prerogative type of case is demonstrated by Mr. Chief Justice Rosenberry’s observations in First Wisconsin Trust Co. v. Board of Trustees (1937), 225 Wis. 34, 43, 272 N. W. 464:

“. . . in some of the earlier cases the cy pres doctrine was repudiated. It is quite clear that what was repudiated was the prerogative power exercised by the chancellor, not as a judge, but as a representative of the Crown.”

Although it was not so denominated, judicial cy pres was, in effect, applied by the court in Estate of Briggs (1926), 189 Wis. 524, 208 N. W. 247. There, at page 534, the court wrestled with the Tharp Case and sought to distinguish it. That the cy pres concept was tacitly followed in the Briggs Case is implicit from the following portion, at page 529:

“While it may be conceded that a bequest to a particularly denominated hospital might ordinarily be deemed lapsed where such hospital is in fact non-existent (which would also be true as to a given church or school under the same circumstances), nevertheless, if from all the surrounding facts and circumstances it can reasonably be gathered that the object of the testator was centered not in the aims of one hospital or one church or one school, but upon a general scheme to promote a given cause, then such named hospital, church, or school may be deemed a mere agency for administrative purposes, and if the agency fails, a chancellor will not permit the purpose to fail, but will supply a new agency in the form of a trustee, to carry out the testator’s intention.”

The hesitation reflected in the Wisconsin decisions to use cy pres openly while at the same time actually applying its doctrine was commented on in. a note in 1947 Wisconsin Law Review, 467. In the note, the author, Thomas G. Godfrey, observed, at page 468:

“Although the trial court went to some length in establishing definitely that this was a charitable trust, the Supreme Court focused its attention upon the interpretation of the content and purpose of the trust. In so doing the court again demonstrated that, although it will not recognize or use the cy pres doctrine as it is used by the majority of other jurisdictions in the United States, when it utilizes the doctrine of liberal construction provided by statute, it is using basically the same theory.”

The doctrine of cy pres is preserved in the American Law Institute’s Restatement of Trusts. Restatement, 2 Trusts, p. 1208, sec. 399. See also 5 Page, Wills (Bowe-Parker rev.), p. 239, sec. 41.33.

While most of the descriptions of cy pres confine its operation to charitable “trusts,” there is no sound reason for the requirement that there be a formal trust, as such. 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. In Estate of Briggs (1926), 189 Wis. 524, 208 N. W. 247, there was a gift to the “Young Women’s Christian Association of Wisconsin.” Although no express trust was created, the court treated the matter as a charitable trust. Instead of saying that gifts to charities are necessarily in trust, we deem it better to rule that the doctrine of judicial cy pres is available when there is a gift to a charity — without requiring that there be a formal trust.

The Wisconsin legislature, in 1933, enacted sec. 231.11 (7) (d), Stats. This subsection reflects a legislative intention both to preserve the cy pres doctrine and also to apply it even though the gift to the charity is not expressly in trust. This subsection provides 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.”

We do not believe that a bequest to a charity must fail when those purposes are clearly evidenced and there is in existence an identifiable beneficiary whose charitable or public program and goals are reasonably close to those expressed by or attributable to the testator. Cy pres remains a sound and useful doctrine. We expressly withdraw the statement quoted above from the Tharp Case; we also consider as no longer controlling those cases which reject judicial cy pres as applied to charitable bequests.

By the Court. — Judgment affirmed.


text:
    Dakin, Respondent, v. Allis, Appellant.

      September 3
    September 29, 1964.

      For the appellant there were briefs and oral argument by David J. Schoetz and Aaron D. Levine, both of Milwaukee.
    For the respondent there was a brief and oral argument by Byron Axel of Milwaukee.
   Wilkie, J.

“Heav’n has no rage, like love to hatred turn’d,
Nor Hell a fury, like a woman scorn’d.”
William Congreve, The Mourning Bride.

Appellant’s main contention is that the release and agreement constitute a valid compromise of a disputed claim arising from an alleged civil wrong (alienation of the affections of respondent’s husband and acts of criminal conversation involving him and the appellant) and that the agreement not to sue in connection not only with past but also future acts of alienation of affection or criminal conversation is valid and an effective bar, as a matter of law, to the new lawsuit commenced by the respondent. This question has not been decided heretofore by this court.

Actions by a wife for the loss of the affections and society of her husband have been permitted by the legislature, although a relatively short statute of limitations — one year —has been prescribed for the bringing of such an action. Wisconsin also has long recognized the right of a wife to maintain an action for criminal conversation with her husband.

To the extent that the release and settlement agreement accomplished a compromise of respondent’s alleged damages incurred by reason of appellant’s alleged past misconduct, such release and covenant not to sue are not in violation of public policy and are valid. Although there is no Wisconsin case so holding we adopt the view expressed by the Indiana supreme court in Wells v. Sutton in which it upheld a contract for silence entered into by an aggrieved husband who agreed that certain notes that he executed would be surrendered should he ever after “refer to or speak of said criminal intimacy” of his alienated wife and the defendant who refused to honor the notes when the husband broke his contract for silence. The contract was upheld against the challenge that it was contrary to public policy and void. The agreement contemplated past misconduct (“said criminal intimacy”) and did not extend to subsequent wrongful misconduct.

Unquestionably in the case at bar the release included injury to the respondent for future misconduct on the part of appellant and the agreement extended the covenant not to sue to such subsequent misconduct. To this extent both the release and agreement violate public policy and are invalid. We conclude that it is against public policy to covenant not to sue based on misconduct of the defendant that is subsequent to the agreement. Such an agreement attempts to buy silence as to a future offense (criminal conversation) that may actually be a crime (adultery), or as to future acts alienating the husband’s affection and intermeddling with a relationship (marriage) that receives the highest protection of the law. Such an agreement is prejudicial to the public welfare and against good morals; as such, it violates public policy.

Thus appellant’s contention that respondent’s second lawsuit is totally barred by the release and covenant not to sue is untenable.

Appellant’s further contention that since Keith’s affections for his wife were already completely alienated before the 1961 settlement there could be no alienation of affections involved in any of the alleged wrongful misconduct during 1962, raises several factual issues: (1) Had the husband’s affections for the respondent been wholly lost prior to December 28, 1961; (2) if so, were these affections restored in whole or in part after the settlement; (3) what acts, if any, of alienation of affections occurred during the period of January through October, 1962; and (4) what damages, if any, were suffered by the respondent by reason of these acts by appellant ?

If Keith’s affections had been completely alienated by December 28, 1961, and were never re-energized, even in part, then there was but one continuous alienation and this would substantially affect the damages to be awarded to the respondent. Determinations as to when the acts of criminal conversation, if any, occurred after the settlement, and the resulting injury caused respondent, are further fact questions that must abide a trial.

Appellant’s final contention is that the respondent is barred and estopped from bringing her second lawsuit for the reason that she has neither restored nor offered to restore appellant to her position prior to execution of the disputed release and agreement. But the parties agreed that if any part of the release or agreement were declared illegal or against public policy the remainder which is deemed legal was to continue in full force and effect. Insofar as the release and agreement embraced actions for past misconduct it is legal; as to actions for alleged future misconduct, it is illegal. Respondent’s second lawsuit requires neither reliance on nor the aid of that portion of the contract that is illegal. There is no condition precedent, where, as here, there is a divisible illegal covenant in the contract, that the respondent restore or offer to restore the consideration received ($13,500) under the release and agreement of December 28, 1961. At least a part of the consideration constituted a legal settlement of the lawsuit founded on past actions. That part of the consideration that may have been received in payment for the illegal contract of silence as to future misconduct need not be returned. Summary judgment was properly denied.

By the Court. — Order denying motion for summary judgment affirmed, and cause remanded for further proceedings not inconsistent with this opinion. Costs allowed to respondent, including printing expenses on brief in excess of 40 pages.

       Sec. 246.07, Stats.

       Sec. 330.22 (2), Stats.

        Woodman v. Goodrich (1940), 234 Wis. 565, 291 N. W. 768.

       (1882), 85 Ind. 70.

       27 Am. Jur., Husband and Wife, p. 137, sec. 537.

        Clarke v. Lincoln Lumber Co. (1884), 59 Wis. 655, 18 N. W. 492; Thronson v. Universal Mfg. Co. (1916), 164 Wis. 44, 159 N. W. 575.