author: Heffernan, J.

text:
    Calumet Cheese Company, Inc., Plaintiff and Respondent, v. Chas. Pfizer & Company, Inc., Defendant and Appellant: Union Carbide Corporation, Impleaded Defendant and Respondent.

      September 3
    September 29, 1964.

      For the defendant-appellant there were briefs by Wick-ham, Borgelt, Skogstad & Powell, attorneys, and Arthur Wickham of counsel, all of Milwaukee, and oral argument by Arthur Wickham.

    For the plaintiff-respondent there was a brief and oral argument by Ray T. McCann of Milwaukee.
    For the impleaded defendant-respondent there was a brief by Whyte, Hirschboeck, Minaban, Harding & Har-land, and Reginald W. Nelson, all of Milwaukee, attorneys, and Ashley Cole of New York, New York, of counsel, and oral argument by Mr. Nelson.

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

   Heffernan, J.

Pfizer’s contentions may be grouped in four separate categories:

1. Disclaimer by Pfizer.

Pfizer in defense of the action brought by Calumet relies on a disclaimer printed on the back of eight invoices and seven order acknowledgments. In small print at the bottom of the face of the invoice appears the following :

“This transaction is subject to SELLER’S STANDARD CONDITIONS printed on the back hereof, notwithstanding any provision submitted by the BUYER.”
The conditions on the back that are material are:
“2. Seller makes no warranty of any kind, express or implied, except that the material sold shall be of merchantable quality and the Buyer assumes all risk whatsoever as to the result of the use of the materials purchased, whether used singly or in combination with other substances. No claim of any kind, whether as to materials delivered or for nondelivery of materials, shall be greater in amount than the purchase price of the materials in respect of which such damages are claimed; and failure to giv« notice of claim within ten days from the date of delivery, or the date fixed for delivery, respectively, shall constitute a waiver by Buyer of all claims in respect of such materials.
“8. These standard conditions constitute the entire agreement between the parties hereto, and there are no understandings, representations or warranties of any kind, express or implied, not expressly set forth herein. No modification of these conditions shall be effective unless in writing and signed by the party claimed to be bound thereby.”

The printing on the invoices and acknowledgments is hardly legible, and is in very fine print. The invoices are printed on very thin, unsized paper that is nearly transparent. Marks and typing on the front of the invoices show through to the back and further inhibit the readability of the disclaimer. Although the Sales Act allows disclaimers, sec. 121.71, Stats., Pfizer cannot avoid liability on the facts here.

The cases relied upon by Pfizer are distinguishable because in each the disclaimer was brought to the attention of the buyer. Ross v. Northrup, King & Co. (1914), 156 Wis. 327, 144 N. W. 1124; Pokrajac v. Wade Motors, Inc. (1954), 266 Wis. 398, 63 N. W. (2d) 720; Hyland v. GCA Tractor & Equipment Co. (1957), 274 Wis. 586, 80 N. W. (2d) 771. In Ross, the disclaimer was printed on top of the seed-order form. In Pokrajac, the buyer signed the auto-purchase contract containing the “as is” clause. In Hyland, the purchaser of the power shovel signed a conditional sales contract and lease in which the seller made a clear disclaimer. Pfizer cannot rely on a disclaimer which is nearly impossible to read. If one party intends to bind another in this manner, the very least that must be required is that the provisions of the disclaimer be legible. This is the rule of the “parking lot” cases in which this court holds that the provisions of the ticket must be brought to the attention of the car owner. O'Brien v. Isaacs (1962), 17 Wis. (2d) 261, 116 N.W. (2d) 246.

The language of the New Jersey court in the well known case of Henningsen v. Bloomfield Motors, Inc. (1960), 32 N. J. 358, 365, 161 Atl. (2d) 69, 75 A. L. R. (2d) 1, is appropriate here:

“These two paragraphs are the least legible and the most difficult to read in the instrument, but they are most important in the evaluation of the rights of the contesting parties. They do not attract attention and there is nothing about the format which would draw the reader’s eye to them. In fact, a studied and concentrated effort would have to be made to read them. De-emphasis seems the motive rather than emphasis.”

This view is supported in other jurisdictions by such cases as Reliance Varnish Co. v. Mullins Lumber Co. (1948), 213 S. C. 84, 48 S. E. (2d) 653, and Cutler Corp. v. Latshaw (1953), 374 Pa. 1, 7, 97 Atl. (2d) 234, 237. In the latter case, the court said that the confession-of-judgment clause printed in small type on the back of the contract was “no more part of the agreement entered into than the advertisements on the walls of the room in which the contract is signed.”

Although we find that the illegibility of the disclaimer makes it ineffective, it should also be pointed out that the evidence indicates that the disclaimer as a part of the invoice was transmitted only after the contract was made and hence was in any event ineffective in imposing additional obligations upon the purchaser.

2. Warranty of Fitness for Particular Purpose.

The jury found that Pfizer warranted that Sorbistat-K was fit for the use in cheese. This is supported by the evidence. The president of Calumet testified that he was persuaded by a Pfizer salesman to substitute as a cheese additive Pfizer’s Sorbistat-K. Since this finding of the jury is supported by credible evidence, that finding must be sustained.

Pfizer contends that this was a sale under a trade name and therefore the only warranty is that of fitness for a general purpose. See sec. 121.15 (4), Stats., which states that a sale under a trade name negates any “implied warranty as to its fitness for any particular purpose.”

Although Sorbistat-K is the trade name that Pfizer used to sell the product potassium sórbate, the rule does not apply here. The mere fact that a product has a trade name does not negate the implied warranty of fitness for a particular purpose. In Green Mountain Mushroom Co., Inc., v. Brown (1953), 117 Vt. 509, 516, 95 Atl. (2d) 679, 683, the court held:

“. . . the fact that an article has a trade name does not of itself necessarily preclude the existence of an implied warranty for fitness for particular purpose. Such a warranty may exist where, although the article has a trade name, the purchase is not made by, or in reliance on the name, but is made for a particular purpose and supplied for that purpose, in reliance on the seller’s judgment.”

In that case, the corporation purchased roofing and a cement called “Barrett S. I. S.” The dealer knew the purpose for which the cement was going to be used and the dealer suggested the particular cement. It was held that despite the trade name there was a warranty for fitness for particular purposes. In the instant case Pfizer urged the use of its product for inhibiting the growth of mold in cheese. The sale was not under a trade name. It was rather a sale on the basis of specific characteristics of the product that were urged by Pfizer. There is in fact some evidence to show that the original order was for sorbic acid and not for the product Sorbistat-K.

Void in his text, Law of Sales (2d ed. 1959), states on page 441, sec. 90, the reason for not applying the rule of a sale under a trade name in all cases:

“The patent or trade-name may be used as the covenient way in which to identify the goods. . . . the buyer buys in reliance on the seller’s selection with regard to suitability; not because of the designation of the patent or trade-name. The sale may be of an article identified by a patent or trade-name. It is not, however, a sale ‘under’ that trade-name. It is a sale ‘under’ the seller’s selection as to suitability. Accordingly, those cases are to be preferred which on such facts have applied the seller’s warranty of suitability.”

1 Williston, Sales (rev. ed. 1948), p. 616, sec. 236a, states the general rule that under the Sales Act a sale under a patent or trade name is not subject to an implied warranty of fitness for a particular purpose. He cautions, however, as follows:

“It is possible, moreover, to have a more specific warranty, even though the contract or sale is one for goods sold under a patent or trade name. An implied warranty of fitness for the buyer’s particular purpose is not excluded if the buyer, when he discloses to the seller that purpose, relies on the seller’s skill and judgment to furnish appropriate goods and the seller then selects goods which have a patent or trade name.”

The jury did find that Pfizer warranted the product, that Calumet relied on the warranty, and that Pfizer breached the warranty. It is clear Sorbistat-K as used was not suited for the particular purpose of inhibiting mold growth in cheese. These findings are supported by substantial evidence.

3. Negligence of Pfizer.

The finding of negligence by Pfizer is supported by the evidence. The evidence clearly shows that Pfizer was fully aware that Sorbistat-K was to be used in cheese. It never communicated this fact to Carbide, the manufacturer. Pfizer, though it knew that Sorbistat-K was not approved by the Federal Food and Drug Administration for use in cheese nevertheless urged Calumet to use it and failed to advise Calumet of the lack of such approval. Those facts support the finding of negligence.

Pfizer’s contention that negligence can be bargained out of a contract by a disclaimer clause need not be discussed, since we have held that the disclaimer herein was ineffective for the reasons stated.

4. Liability of Carbide, Indemnity Agreement, Timely Notice.

The jury also found that Carbide was negligent in the manufacture and sale of Sorbistat-K to Pfizer. It appears that evidence before the jury is sufficient to support that finding.

Pfizer relies primarily on an alleged “indemnity” agreement, which was contained in Pfizer’s confirmations of its orders to Carbide. The pertinent portion of the confirmation provides that, “Seller agrees to defend, indemnify and hold harmless the Buyer against any and all liability, . . . resulting from any breach . . . of . . . warranties.” The trial court properly held that Pfizer failed, however, to establish by a fair preponderance of the evidence that the confirmations with the conditions were received by Carbide prior to the shipment of the goods. There was a failure on the part of Pfizer to show that the indemnity clauses were a part of the contract itself and not subsequent to it. However, even though it could be shown that the agreement of indemnification was a part of the contract, there can be no recovery by Pfizer against Carbide.

All parties to this lawsuit, and the court, proceed on the theory that New York law governs the relationship between Pfizer and Carbide. This need not be decided since Pfizer can recover under the law of neither state.

It cannot recover on the basis of warranty, since sec. 121.49, Stats., and the equivalent section of the New York act requires that if “the buyer fails to give notice to the seller of the breach of any promise or warranty within a reasonable time after the buyer knows, or ought to know, of such breach, the seller shall not be liable therefor.”

Pfizer was aware of the effect of Sorbistat-K on the cheese products sold by Calumet as early as March, 1961, yet it first notified Carbide in October, a delay of seven months. The jury’s finding that this delay was unreasonable is sustained by the evidence, Schaefer v. Weber (1953), 265 Wis. 160, 60 N. W. (2d) 696, and Schroeder v. Drees (1957), 1 Wis. (2d) 106, 83 N. W. (2d) 707.

The jury found that in the action between Pfizer and Carbide, 90 percent of the negligence was attributable to Pfizer and 10 percent to Carbide. The rule that any contributory negligence is a bar prevails in New York, Tornambe v. Tornambe (1962), 227 N. Y. Supp. (2d) 237, affirmed (1963), 12 N. Y. (2d) 1003, 189 N. E. (2d) 625, and under the Wisconsin law, Pfizer would be barred by the comparative-negligence statute sec. 331.045, since it is more negligent than Carbide. Nor are there any rights of contribution. The negligence with which Carbide is chargeable is negligence only in regard to Pfizer, and not in regard to Calumet. It shares with Pfizer no common liability and hence there can be no contribution. Bielski v. Schulze (1962), 16 Wis. (2d) 1, 114 N.W. (2d) 105.

By the Court. — Judgment affirmed.

Currie, C. J., took no part.


source: Caselaw Access Project

author: Fairchild, J.

license: Public Domain

text:
    Fogelberg and wife, Plaintiffs, v. Cassata and wife, Defendants and Appellants: Armstrong, d/b/a Preferred Title Service Company, Defendant and Respondent.

      September 3
    September 29, 1964.

      The cause was submitted for the appellants on the brief of Philip L. Kapell of Madison, and for the respondent on the brief of John T. Harrington of Madison.
   Fairchild, J.

Appellants suggest that under the original contract for sale of real estate, Fogelbergs assumed responsibility for the sewer-main assessment. If that were true, it would seem that the ultimate result should have been that the Fogelbergs could not recover the amount of the assessment, which they did pay, from anyone, although they may properly have recovered from the abstractor additional expense caused by his error. This result would be inconsistent with the original judgment which became final after affirmance by the circuit court. The judgment was based on a finding that there was no contract before closing and imposed liability for the assessment on the sellers and the abstractor, jointly and severally, in favor of the purchasers.

In any event, however, and conceding the original judgment is no longer subject to change, appellants now argue that they gave the warranty on which they were held liable because of a mistaken belief, caused by the abstractor’s error, that the special assessment had been paid. On this point, they are met with the finding of the county court that Mr. Cassata knew the facts, was not misled, and his loss was not caused by the error. As pointed out by the learned circuit judge, there is no transcript of testimony on which to base a review of the finding.

By the Court. — Judgment affirmed.


text:
    Weather-Tite Company of Milwaukee, Inc., Appellant, v. Lepper, Respondent.

      September 3
    September 29, 1964.

      For the appellant there was a brief by Lakes & Marcuvits of Milwaukee, and oral argument by Alan Marcuvits.

    For the respondent there was oral argument by Maurice Wigderson of Mequon.
   Fairchild, J.

Sec. 289.02 (4), Stats., provides:

“The proceeds of any mortgage on land, paid to any principal contractor or any subcontractor for improvements upon the mortgaged premises and all moneys paid to him by any owner for improvements, constitute a trust fund in the hands of any such contractor or subcontractor to the amount of all claims due and to become due or owing from such contractor or subcontractor for labor and materials used for such improvements until all such claims have been paid; and the use of any of such moneys by any contractor or subcontractor for any other purpose until all claims, except those which are the subject of a bona fide dispute, have been paid in full, or pro rata in cases of a deficiency, is theft of moneys so misappropriated.”

Plaintiff contends that as a supplier of “materials used for such improvements” it is a beneficiary of the statutory trust of the moneys paid by the homeowners to the contractor, and that defendant, by expending such funds to others than beneficiaries before paying the amount due plaintiff, converted the funds and became personally liable to plaintiff. The trial court was of the opinion that the statute was not applicable to materials furnished without designation as to specific jobs.

The statutory trust fund of moneys paid by an owner to the contractor was originally established for the payment of “claims due for labor and materials to persons entitled to a lien by law against said owner or his property, . . .” This language was interpreted in Pauly v. Keebler as excluding all persons who had been entitled to a lien but had lost that right by failing to take the necessary steps to perfect a lien. The statute was amended in 1935 so as to cover claims due or to become due “for lienable labor and materials.” In 1955 the legislature amended the statute by dropping the word “lienable” and provided for a trust in the amount of all claims due or to become due “for labor and materials used for such improvements . . .”

Plaintiff-appellant admits that prior to 1955 it would have no claim to the protection of the statutory trust as it supplied the materials without designation as to specific jobs and thus had no right to a lien. Plaintiff contends, however, that since the 1955 amendment it need not have a lienable claim in order to come within the protection of the statute. Defendant argues that the 1955 amendment was not designed to eliminate the requirement that the materials be furnished with specific projects in mind, and that materials sold without designation as to use were not meant to come within the statutory trust. Indeed, the following comments of the drafter on file with the legislative reference library tend in some degree to support his position:

“Purpose to compel preservation of trust fund and liability for embezzlement whether subcontractors file liens or not and to full extent of their claims whether time for filing liens therefore have expired or not. This was apparent original intent of legislature which has been so undermined by judicial construction as to leave the section of little practical effect.”

However, before a court may review matters outside the statutory language in order to determine the meaning intended by the legislature, the statute as such must present some ambiguity. Where a statute is plain and unambiguous, interpretation is unnecessary.

As we recently stated:

“A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses. There is no ambiguity in the literal terms of the provision under consideration and it is often said that when the words are plain there is no room for judicial construction.
“Primarily, however, the meaning must be read from the language chosen by the legislature, and the courts are not free to determine whether different provisions would have been enacted if the legislators had given some or greater attention to the application of the statute upon a particular set of facts.”

Clearly plaintiff has supplied “materials used for such improvements” and the statute requires no more. It is stipulated that the materials supplied by plaintiff were incorporated by Super Seal into building improvements, and that the owners of such buildings paid Super Seal for its work. The statute makes no other requirement than that the materials be “used for such improvements;” it leaves no room for judicial construction. Defendant, having expended the trust funds for purposes other than the payment of claims as provided in the statute, is a converter of those funds and personally liable to plaintiff for the amount of its claim.

By the Court. — Judgment reversed, and cause remanded for the entry of judgment for plaintiff.

       Ch. 213, sec. 3, Laws of 1913.

       (1921), 175 Wis. 428, 185 N. W. 554.

       Ch. 483, sec. 87, Laws of 1935.

       Ch. 78, Laws of 1955.

       See Esslinger v. Huebner (1868), 22 Wis. 602 (*632), 604 (*634), 605 (*635).

         Estate of Ries (1951), 259 Wis. 453, 49 N. W. (2d) 483, 50 N. W. (2d) 397; State ex rel. Badtke v. School Board (1957), 1 Wis. (2d) 208, 83 N. W. (2d) 724.

         State ex rel. Neelen v. Lucas (1964), 24 Wis. (2d) 262, 267, 268, 128 N. W. (2d) 425.

       See State ex rel. Kropf v. Gilbert (1933), 213 Wis. 196, 251 N. W. 478.


author: Hallows, J. Gordon, J.

text:
    Estate of Ferguson: Braden, Guardian, Appellant, v. Ferguson, Administratrix, Respondent.

      September 3
    September 29, 1964.

      For the appellant there were briefs by Genoar & Braden and Berwyn B. Braden, all of Lake Geneva, and oral argument by Berwyn B. Braden.

      For the respondent there was a brief and oral argument by John Morrissy of Lake Geneva.

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

   Hallows, J.

The issue on this appeal is whether a marriage performed in another state between a nonresident woman and a Wisconsin resident is subject to the provisions of sec. 245.10, Stats. This section provides inter alia when either applicant for a marriage license has a minor child of a prior marriage who is not in his custody and which he is under an obligation to support by court order that no license shall be issued without an order of the court having jurisdiction in the county in which the marriage license is applied for.

The facts are simple and admitted. Stanley E. Ferguson, the deceased, and Ethyle A. Ferguson were divorced on January 19, 1961. The custody of a minor son, the appellant Stuart Lawrence Ferguson, was awarded to the mother and Stanley E. Ferguson was ordered to pay $175 monthly support. At the time of the divorce and at all subsequent times Stanley Ferguson was a resident of Lake Geneva, Wisconsin, and faithfully made the support payments. On March 7, 1962, at Battle Creek, Michigan, he married Mildred Louderback, a resident of Illinois. After the marriage ceremony the Fergusons lived at Lake Geneva, Wisconsin. Approximately four months later on July 21, 1962, Stanley Ferguson died.

No action by Ferguson was taken prior to his second marriage to comply with sec. 245.10, Stats., and Mildred Ferguson was not aware of the existence of sec. 245.10. It is not in the record whether or not the deceased knew of sec. 245.10 which was first enacted in 1959. It is stipulated Stuart was not likely to become a public charge.

The trial court held the marriage of Stanley Ferguson and the respondent was not void but voidable and, therefore, was not subject to collateral attack or to being set aside after the death of one of the parties. The appellant argues this ruling is error and the marriage is void because of noncompliance with sec. 245.10, Stats., which should be given extraterritorial effect.

The legislative history and an analysis of sec. 245.10, Stats., make it clear the section can be given no extraterritorial effect. This section was originally created by ch. 595, sec. 17, Laws of 1959, to become effective January 1, 1960. In its then form it provided no license to marry should be issued when it appeared that either applicant had a minor of a previous marriage not in his custody and which he was under obligation to support by court order or judgment without the written permission of a judge of a court having divorce jurisdiction in the county in which the license was applied for. Provision was made for a court hearing and the submission of proof of compliance with the prior court obligation. Upon such hearing the applicant could either furnish such proof or could show good cause why the marriage license should be issued to him in the absence of proof of compliance. If permission was withheld such order was deemed an appealable order.

This section has to be construed with sec. 245.05, Stats., requiring a marriage license to be obtained from the county clerk and with sec. 245.12 requiring the county clerk to issue a marriage license when the applicable sections were complied with. Under sec. 245.09 the application for a marriage license would disclose the information upon which sec. 245.10 would become applicable and thus it was natural for the prohibition to be placed on the clerk. Nothing in this section as it was created in 1959 contemplates its application to marriages performed outside Wisconsin.

In 1961 the section was repealed and re-created by ch. 505, sec. 11, Laws of 1961. The section is still addressed in effect to the county clerk in prohibiting the issuance of a license. Notice of hearing is now required to be given to the person or agency having custody of the minor and both applicants must appear. The proof for the obtaining of an order is that the minor is not and is not likely to become a public charge. Until such showing is made the court need not make an order for the issuance of the license. A denial of a license is an appealable order. We cannot find an intention of the legislature in these requirements for obtaining a court order for the issuance of a license to marry which requires compliance by a Wisconsin resident outside the state of Wisconsin. The intention of the legislature was not to regulate the issuance of a foreign license to marry by requiring foreign courts to grant such license on Wisconsin public policy nor to endow the denial of such license with the attributes of appealability in that state.

No difficulty would be encountered in the construction of this section were it not for the last sentence added in 1961 providing that any marriage contracted without compliance shall be void whether entered into in this state or elsewhere. We cannot read the language “or elsewhere” as requiring compliance with this section in another state. The affirmative acts required to be done to secure a license to marry may not be possible of performance in the foreign state.

The requirements of sec. 245.10, Stats., in nature are similar to the age requirements of sec. 245.02 and the ante-nuptial physical examination and tests of sec. 245.06, both of which have been held to have no extraterritorial effect. Lyannes v. Lyannes (1920), 171 Wis. 381, 177 N. W. 683. It is true sec. 245.03 (2) making it unlawful for a divorced person to marry again within one year of the granting of the divorce was held to have extraterritorial effect in Lanham v. Lanham (1908), 136 Wis. 360, 117 N. W. 787, and a marriage contracted in violation of that section is void. But, such section is prohibitory on the parties and by its terms performance may be secured both within and without the state. We do not hold that the public policy expressed in sec. 245.10 cannot be protected or promoted by the nonrecognition of the validity of foreign marriages entered into by Wisconsin residents. We merely hold the present language of sec. 245.10 does not accomplish that purpose.

We consider sec. 245.04, Stats., has no application to sec. 245.10. The former section applies to certain marriages contracted outside the state to circumvent Wisconsin laws. It provides that when a person residing and continuing to reside in this state who is disabled or prohibited from contracting marriage under the laws of this state goes to another state and there contracts a marriage which would be prohibited or void under the laws of this state, such marriage shall be void in this state. However, this section only applies to marriages contracted outside the state without compliance with those Wisconsin laws which have extraterritorial effect. Lyannes v. Lyannes, supra.

We consider the marriage between the respondent and the deceased as being valid and sec. 245.10, Stats., as having no application thereto. This view requires an affirmance of the trial court.

By the Court. — Orders affirmed.

Gordon, J.

(dissenting). I respectfully dissent. Stanley Ferguson was at all times a resident of Walworth county, Wisconsin. Immediately after a Michigan marriage, which he entered into in contravention of sec. 245.10, Stats., he returned to Wisconsin to continue living in this state.

In furtherance of its public policies, Wisconsin has plenary control over the marital status of its own residents. Estate of Campbell (1952), 260 Wis. 625, 631, 51 N. W. (2d) 709; Peterson v. Widule (1914), 157 Wis. 641, 147 N. W. 966; Lanham v. Lanham (1908), 136 Wis. 360, 117 N. W. 787. In the latter case, this court said, at page 365:

“A state undoubtedly has the power to declare what marriages between its own citizens shall not be recognized as valid in its courts, and it also has the power to declare that marriages between its own citizens contrary to its established public policy shall have no validity in its courts, even though they be celebrated in other states under whose laws they would ordinarily be valid. In this sense, at least, it has power to give extraterritorial effect to its laws. The intention to give such effect must, however, be quite clear. So the question must be, in the present case, whether our legislature by the act quoted declared a public policy and clearly indicated the intention that the law was to apply to its citizens wherever they may be at the time of their marriage.” (Emphasis added.)

A similar view is taken in Restatement, Conflict of Laws, p. 197, sec. 132, wherein the following appears:

“A marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere in the following cases:
“(d) marriage of a domiciliary which a statute at the domicil makes void even though celebrated in another state.”

The statute in question, sec. 245.10, is clearly designed to have extraterritorial effect, since on its face it applies to a marriage “whether entered into in this state or elsewhere.” The majority’s circumvention of this explicit provision is incomprehensible to me. To support its view, the majority opinion examines the legislative history of sec. 245.10. However, there is no propriety in the court’s searching for the legislature’s meaning because the words of the statute (“in this state or elsewhere”) are unambiguous. There is simply no room for construction. Estate of Ries (1951), 259 Wis. 453, 459, 49 N. W. (2d) 483; State ex rel. U. S. F. & G. Co. v. Smith (1924), 184 Wis. 309, 316, 199 N. W. 954; United States v. Goldenberg (1897), 168 U. S. 95, 103, 18 Sup. Ct. 3, 42 L. Ed. 394.

Sec. 245.04 (1), Stats., provides as follows:

“If any person residing and intending to continue to reside in this state who is disabled or prohibited from contracting marriage under the laws of this state goes into another state or country and there contracts a marriage prohibited or declared void under the laws of this state, such marriage shall be void for all purposes in this state with the same effect as though it had been entered into in this state.”

In Lyannes v. Lyannes (1920), 171 Wis. 381, 397, 177 N. W. 683, the foregoing statute was deemed inapplicable where the particular Wisconsin statute which had been violated was not intended to have extraterritorial effect. However, in the case at bar, there can be no doubt that sec. 245.10, Stats., was so designed. The opinion of the majority denies extraterritorial effect to sec. 245.10, even though the statute itself expressly provides for it. The majority likens sec. 245.10 to secs. 245.02 and 245.06; this is wrong because the latter statutes do not call for extraterritorial effect but the former expressly provides therefor on its face. The legislature has said, in words almost of one syllable, that sec. 245.10 shall apply to marriages entered into “in this state or elsewhere;” the majority opinion states that the court cannot read such language as “requiring compliance with this section in another state.”

The learned trial judge held that in the instant case “void” means “voidable.” The legislature, using words incapable of doubt, had directed just the contrary. Sec. 245.002 (3), Stats., governs the case at bar and provides as follows: “In this title ‘void’ means null and void and not voidable.” Can words be any clearer? Nevertheless, the majority opinion has used a mysterious, restorative pharmacopoeia to resuscitate that which never lived.

I would reverse on the grounds that the purported Michigan marriage was wholly void under the Wisconsin statutes.

       “245.10 Permission of court required for certain marriages. When either applicant has minor issue of a prior marriage not in his custody and which he is under obligation to support by court order or judgment, no license shall be issued without the order of a court having divorce jurisdiction in the county of application. The court, within 5 days after such permission is sought by verified petition in a special proceeding, shall either grant such order or direct a court hearing to be held in the matter to allow said applicant to submit proof of his compliance with such prior court obligation. No such order shall be granted, or hearing held, unless both applicants for such license appear, and unless the person, agency, institution, welfare department or other entity having the legal or actual custody of such minor issue is given notice of such proceeding by personal service of a copy of such petition at least 5 days prior to the court order or hearing, unless such appearance or notice has been waived by the court upon good cause shown. Upon the hearing, if said applicant submits such proof and makes a showing that such children are not and are not likely to become public charges, the court shall grant such order, a copy of which shall be filed in any prior divorce action of such applicant in this state affected thereby; otherwise permission for a license shall be withheld until such proof is submitted and such showing is made, but any court order withholding such permission is an appealable order. Any marriage contracted without compliance with this section, where such compliance is required, shall be void, whether entered into in this state or elsewhere.”


author: Wilkie, J.

text:
    Kenneth F. Sullivan Company, Appellant, v. Industrial Commission and others, Respondents.

      September 3
    September 29, 1964.

      For the appellant there were briefs by John H. Rouse and Jasper, Winner, Perina & Rouse, all of Madison, and oral argument by John H. Rouse.

    For the respondent Industrial Commission there was a brief and oral argument by Arnold J. Spencer, chief counsel of the unemployment compensation division.
    For the other respondents there was a brief by Goldberg, Previant & Uelmen of Milwaukee, and oral argument by Richard M. Goldberg.

   Wilkie, J.

The first and most crucial issue presented on this appeal is whether the respondents left or lost their employment because of a strike or other bona fide labor dispute in active progress at the establishment where they were last employed.

Employees are generally entitled to compensation for the time that they are unemployed. Sullivan’s employees, the respondents, were laid off because of a lack of cement at the project sites. This lack of concrete, in turn, was caused by a strike of the supplier’s truck drivers. The precise question is whether workers, who become unemployed due to a material shortage occasioned by a strike against another employer, are disqualified from benefits under sec. 108.04 (10), Stats. This court has never resolved this issue. Sec. 108.04 (10) provides:

“Labor dispute. An employe who has left (or partially or totally lost) his employment with an employing unit because of a strike or other bona fide labor dispute shall not be eligible for benefits from such (or any previous) employer’s account for any week in which such strike or other bona fide labor dispute is in active progress in the establishment in which he is or was employed.”

We must first consider whether there was a strike or labor dispute within the meaning of the statute. Appellant relies on an early case which cites the then applicable statute defining “labor dispute” as including:

“ ‘. . . any . . . controversy arising out of the respective interests of employer and employee, regardless of whether or not the disputants stand in the proximate relation of employer and employee.’ ”

In contending that respondents were involved in a labor dispute, appellant emphasizes the language deeming an employer-employee relationship unnecessary. Not only have subsequent cases failed to allude to this definition, but a later amendment to the statute considered in the early case eliminated the “regardless of whether or not the disputants stand in the proximate relation of employer and employee” language.

In recognizing that a purpose of the disqualifying section, 108.04 (10), was to prevent an employer from financing a strike against himself, recent decisions have at least implied that the employee or the employer must be directly involved in the dispute. In the present case, Sullivan was not in a controversy with anyone, nor were Sullivan’s employees.

Another factor in determining whether there is a strike or a labor dispute within the meaning of the statute is whether the employer-employee relationship is severed. In Marathon Electric Mfg. Corp. v. Industrial Comm., the court concluded that:

“. . . sec. 108.04 (10), Stats., should be construed as only applicable to those persons still retaining an employee status who are out of work due to a bona fide labor dispute; and as to such employees there is a complete suspension of benefits for the duration of the period that the dispute remains in active progress. If the employer during the progress of such dispute elects to terminate the employee status of any employee by discharging him, the possible liability of the employer’s account for unemployment compensation benefits to such discharged employee is governed by the portions of sec. 108.04, other than sub. (10), applicable to cases of absolute termination of employment. . . .
“This construction of sec. 108.04 (10), Stats., is in keeping with the legislative policy underlying its enactment of protecting employers against having to finance a strike against themselves, as would be the case if their accounts were liable for the payment of unemployment compensation benefits to their employees while absent from work during the course of the dispute. The employe! receives the full benefit of the protection of this subsection during the progress of the labor dispute so long as it does not take affirmative action to end the employee status of the employee. If it does elect to terminate such status during the progress of the labor dispute the reason for the affording of such protection disappears.”

The respondents were laid off because of the lack of materials on the construction sites; such temporary suspension does not disqualify them under sec. 108.04 (10), Stats.

Appellant contends that because the Madison Trades Council, of which respondents’ unions were members, supported the strike, the Teamsters’ strike becomes the dispute of each individual union, and that therefore respondents are disqualified. Newspapers containing statements of the council’s president were introduced to prove the council’s participation. The flaw in this argument is apparent without considering the hearsay problem presented by the newspaper reports. The Teamsters local was not a member of the Madison Trades Council. It was not even invited to join until three weeks after the strike ended and was not admitted until July 1st, almost two months after the strike was halted. The support of the council consisted of, at most, passive acquiescence. The Teamsters’ strike could not be imputed to the other members of the Trades Council without a showing of more active co-operation.

Under circumstances such as those in the instant case, it would be manifestly unfair to hold respondents accountable for another union’s strike of a wholly different employer when the respondents had absolutely no connection with the strike. To disqualify an employee there must be more of a thread than is present here which connects the employer (in case of a lockout) or the employee (in case of a strike) with the controversy.

Because neither^ Sullivan nor the respondents were parties to a labor dispute within the meaning of sec. 108.04 (10), Stats., it is not necessary to consider whether or not the construction sites were “establishments” as contemplated by the provisions of that section.

A second issue presented on this appeal is whether the Industrial Commission erred in denying a rehearing at the request of appellant.

Appellant contends that after the hearing the labor representatives made statements reported in the Madison papers, which would cast doubt on the credibility of their testimony at the hearing. The statements were purportedly to the effect that the Madison Trades Council would support a new Teamsters’ strike as it had the one in April. Appellant feels that as this was contrary to testimony at the hearing, a rehearing is warranted in the interests of justice. The taking of additional testimony on petition for review of an examiner’s findings and order is a matter for the sole discretion of the commission.

Aside from the obvious hearsay problem, the evidence is irrelevant. Newspaper reports to the effect that the council supported the strike were introduced at the original hearing. The council president testified that he was misquoted. The “new evidence” is identical to evidence already considered by the commission. There was no abuse of discretion in the commission’s denial of the request for a new hearing.

By the Court. — Judgment affirmed.

        Spielmann v. Industrial Comm. (1940), 236 Wis. 240, 250, 295 N. W. 1, 6.

       Ch. 25, Laws of 1939.

        Marathon Electric Mfg. Corp. v. Industrial Comm. (1955), 269 Wis. 394, 69 N. W. (2d) 573, 70 N. W. (2d) 576.

        A. J. Sweet, Inc., v. Industrial Comm. (1962), 16 Wis. (2d) 98, 114 N. W. (2d) 141, 114 N. W. (2d) 853.

         Supra, footnote 3, at page 407, 69 N. W. (2d) at 581. Later cases include: Rice Lake Creamery Co. v. Industrial Comm. (1961), 15 Wis. (2d) 177, 112 N. W. (2d) 202; Fredricks v. Industrial Comm. (1958), 4 Wis. (2d) 519, 91 N. W. (2d) 93.

       See A. J. Sweet, Inc., v. Industrial Comm., supra, footnote 4, where employers who belonged to an association locked out their employees when a member employer was struck. The association was enough to bring all the employers into the dispute, therefore disqualifying the employees from receiving benefits.

        Christnovich v. Industrial Comm. (1950), 257 Wis. 235, 43 N. W. (2d) 21.


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

      September 4
    September 29, 1964.

      For the plaintiff m error there was a brief and oral argument by John William Calhoun of Fond du Lac.
    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were George Thompson, attorney general, William A. Plats, assistant attorney general, and Jack Steinhilber, district attorney of Winnebago county.
   Wilkie, J.

There are two questions presented on this appeal:

1. Is coram nobis the proper remedy to upset a first-degree murder conviction under the vicarious-liability statute on the ground that after time for appeal had expired, the sole accomplice was found not guilty because of insanity?

2. Did the trial court err in refusing to appoint counsel to pursue a writ of coram nobis?

Coram nobis is a statutory remedy directed at the trial court. The type of error that may be reached by coram nobis was comprehensively considered in Houston v. State wherein it was stated:

“An error to constitute a ground for the granting of the writ of coram nobis must not only be unknown to the court but would have prevented the judgment of the court. . . . Unless it clearly appears that an error of fact existed before judgment and but for such error the judgment would not have been entered, the writ of coram nobis should not be granted.”

The writ will not lie to correct an error of law. The granting or denial of the writ is highly discretionary and only a clear abuse of discretion on the part of the trial court will prompt a reversal.

In essence, in order to use coram nobis the error complained of (1) must have been unknown at the time of the trial, and (2) would have prevented the judgment.

In the instant case, for coram nobis to be available, the evidence of Clayton’s mental aberrations must have been unknown at the trial, and furthermore, his insanity must constitute a defense for her actions.

Although Clayton was not adjudged insane for better than a year and a half after the trial of Mrs. Fritz, it was no secret that he had had his problems. Mrs. Fritz (and her attorney) knew that he had been committed to Winnebago state hospital on two previous occasions. She also knew that after the murder, psychiatrists had found him incompetent to stand trial and that he was committed to Central state hospital. If her defense was to be based on Clayton’s insanity, there was sufficient notice of his condition to have had that issue resolved at the trial or at least to have requested a postponement until a final determination on his sanity had been made. With this knowledge, Mrs. Fritz cannot lie in the weeds at the trial and then complain at this time, for the first time, that she was ignorant of her accomplice’s condition. Even if it were found that at the trial she was unaware of Clayton’s insanity, for coram nobis to lie, the fact of his insanity must, as a matter of law, have prevented her conviction.

Mrs. Fritz was convicted of first-degree murder under the vicarious-liability statute. The jury was instructed on the conspiracy element in the statute, but not on the aiding and abetting or other portions. The conviction then rested upon the jury’s finding that Clayton, who actually did the deed, and Mrs. Fritz were coconspirators. Plaintiff in error contends that as it takes at least two people to conspire, where one of the two alleged coconspirators is acquitted there can be no conspiracy. The cases cited to this effect involve the inchoate substantive crime of conspiracy and as to that crime the general statement of the law is correct. However, Mrs. Fritz was not convicted of the crime of conspiracy, but rather of first-degree murder under sec. 939.05, Stats. Sec. 939.05 (1) provides that a person can be convicted of a crime as a principal “although he did not directly commit it and although the person who directly committed it has not been convicted . . .” Sub. (2) of sec. 939.05 provides that a person “is concerned in the commission of the crime if he . . . [i]s a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it.” It was the drafter’s intent that people not present at the commission of crimes committed by their innocent agents be convicted as principals, and furthermore that the conviction of the actual doer is not essential to the conviction of others involved.

Plaintiff in error also argues that she cannot be convicted of first-degree murder because her alleged coconspirator was incapable of imparting the necessary intent to her. This contention is also answered by sec. 939.05 (1), Stats. A conviction of the one who committed the crime is not required. It should make no difference whether the acquittal is based simply on a finding of not guilty, or on a finding of not guilty by reason of insanity.

Thus the insanity of Clayton would not have prevented her conviction, and this is a further reason why the trial court did not abuse its discretion in denying the writ.

Plaintiff in error is indigent and claims that the trial court erred in not appointing counsel to prosecute her writ of coram nobis. It is violative of equal protection to deprive an indigent of the right to appeal or procure a writ of error. Counsel was provided for Mrs. Fritz to pursue her writ of error from the order denying her coram nobis petition.

But was Mrs. Fritz entitled to the appointment of counsel by the trial court to prosecute her application for a writ of coram nobis? She did not have such an absolute right. We believe that the proper procedure, as in petitions for writs of habeas corpus, is for the court to which the petition is addressed to analyze the merits of the petition and if the court is persuaded that there is reasonable merit in the petition and a reasonable likelihood of success, then the court should appoint counsel for the indigent. From the analysis made by the trial court, confirmed here, the petition was baseless and we see no way in which the trial court could reasonably have exercised its discretion to grant the writ. Thus we conclude that the trial court committed no error in failing to appoint counsel. The fact that we appointed counsel to pursue her writ of error here and such counsel, though most ably presenting her position, has not convinced us that there was any merit whatsoever in her petition reinforces us in the view that no constitutional right of petitioner was violated when the trial court refused to name counsel.

By the Court. — Order affirmed.

       Sec. 958.07. Stats.

       (1959), 7 Wis. (2d) 348, 96 N. W. (2d) 343.

       7 Wis. (2d) at page 351, 96 N. W. (2d) at page 345.

        Ernst v. State (1923), 181 Wis. 155, 193 N. W. 978.

         Wilson v. State (1956), 273 Wis. 522, 78 N. W. (2d) 917; State v. Dingman (1941), 239 Wis. 188, 300 N. W. 244.

       Sec. 939.05 (2), Stats., provides: “939.05 Parties to crime. . . . (2) A person is concerned in the commission of the crime if he: (a) Directly commits the crime; or (b) Intentionally aids and abets the commission of it; or (c) Is a party to a conspiracy with another to commit it or advises, hires, counsels or otherwise procures another to commit it. ...”

         Casper v. State (1879), 47 Wis. 535, 2 N. W. 1117; State v. Lloyd (1913), 152 Wis. 24, 139 N. W. 514.

       Wisconsin Legislative Council, 1953 Report, Vol. V, Criminal Code.

       Relying on Lane v. Brown (1963), 372 U. S. 477, 83 Sup. Ct. 768, 9 L. Ed. (2d) 892.

       See Lane, supra, footnote 9; Smith v. Bennett (1961), 365 U. S. 708, 81 Sup. Ct. 895, 6 L. Ed. (2d) 39; Burns v. Ohio (1959), 360 U. S. 252, 79 Sup. Ct. 1164. 3 L. Ed. (2d) 1209.


author: Per Curiam :

text:
    Coffee-Rich, Inc., Respondent, v. McDowell, Director of Wisconsin Department of Agriculture, Appellant.

      September 4
    September 29, 1964.

    For the appellant the cause was argued by James H. McDermott, assistant attorney general, and Frederick J. Griffith, attorney for the Wisconsin Department of Agriculture, with whom on the briefs were George Thompson, attorney general, and Gerhardt A. Schueler, attorney for the Wisconsin Department of Agriculture.
    For the respondent there was a brief by T. L. Toían, Jr., Samuel J. Recht, and Brady, Tyrrell & Bruce, all of Milwaukee, attorneys, and Ellis Arnall, Elliott H. Levitas, and Arnall, Golden & Gregory, all of Atlanta, Georgia, of counsel, and oral argument by Mr. Toían, Mr. Ellis Arnall, and Mr. Levitas.

   Per Curiam :

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

Judgment affirmed.


author: Heffernan, J. Wilkie, J.

text:
    Inter-Insurance Exchange of Chicago Motor Club, Respondent, v. Westchester Fire Insurance Company, Appellant.

      September 4
    September 29, 1964.

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

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

   Heffernan, J.

The ultimate question to be determined is the intent of Mannino and Westchester at the time they entered into their contract of insurance as evinced by the language of their agreement. This general rule was stated by the court in Home Mut. Ins. Co. v. Insurance Co. of North America (1963), 20 Wis. (2d) 48, 51, 52, 121 N. W. (2d) 275 :

“The established rule, of course, is that in interpreting and construing an insurance contract (in fact, all contracts), the objective should be to ascertain the true intention of the parties. [Citations omitted.] A subordinate ruling is that in ascertaining the intention of the parties, a practical construction is most persuasive.”

It should also be stated that it is fundamental that no contract of insurance should be rewritten by construction to bind an insurer to a risk which it did not contemplate and for which it was not paid, unless the terms, which after all are under the control of the insurer, are ambiguous or obscure. It is of course the rule that in the event of ambiguity or obscurity, the language is to be construed against the insurance company and in favor of the insured. Lontkowski v. Ignarski (1959), 6 Wis. (2d) 561, 95 N. W. (2d) 230.

If there were ambiguity the language of the entire contract should have to be construed most strongly against the insurer. Vaudreuil Lumber Co. v. Aetna Casualty & Surety Co. (1930), 201 Wis. 518, 520, 230 N. W. 704.

Respondent has correctly contended that where the provisions of a rider or endorsement are irreconcilable, the rider must control. However, the policy and the endorsements must be read together and it is only where an irreconcilable conflict exists that resort should be had to the rule that the endorsement should abrogate or nullify the policy provisions.

States Appleman in his treatise, 13 Insurance Law and Practice (1943), pp. 290, 294, 297, secs. 7537-7539:

“In construing an endorsement to an insurance policy, the endorsement and policy must be read together, and the policy remains in full force and effect except as altered by the words of the endorsement. Where the endorsement expressly provides that it is subject to all terms, limitations, and conditions of the policy, it does not abrogate or nullify any provision of the policy unless it is so stated in the endorsement.
“Endorsements or riders on a policy become a part of the policy, and must be construed with it. Such provisions in the body of the policy are not to be abrogated, waived, limited, or modified by the provisions of an endorsement or rider unless expressly stated therein that such provisions are substituted for those in the body of the policy, or unless the provisions in the policy proper and in the rider or endorsement are conflicting. But where the provisions are inconsistent, those of the rider or endorsement must prevail. And where several such documents appear, the last in point of time is controlling.
“But where the provisions of the rider and those of the policy are irreconcilable, the rider must control, and the terms of the rider supersede inconsistent provisions of the policy.”

A construction of an insurance policy which entirely neutralizes one provision should not be adopted if the contract is susceptible of another construction which gives effect to all of its provisions and is consistent with the general intent. Wyatt v. Wyatt (1953), 239 Minn. 434, 58 N. W. (2d) 873. Applying these rules to the instant case, we are satisfied that the endorsement did not abrogate the exclusion clause in Westchester’s policy and that the order overruling the demurrer must be reversed.

The automobile described in the Westchester policy was Mannino’s half-ton, pickup truck. The following are the pertinent provisions of this policy:

[Body of Policy]
“I Coverage A — Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by any person, caused by accident and arising out of the ownership, maintenance or use of the automobile.
“IV Automobile Defined, Trailers, Private Passenger Automobile, Two or More Automobiles, Including Automatic Insurance.
“(a) Automobile. Except with respect to division 2 of coverage C and except where stated to the contrary, the word ‘automobile’ means:
“(2) Trailer — under coverages A, B and division 1 of coverage C, a trailer not described in this policy, if designed for use with a private passenger automobile, if not being used for business purposes with another type automobile, and under division 1 of coverage C, if not a home, office, store, display or passenger trailer;
[Exclusions]
“This policy does not apply:
“(c) under coverages A and B, while the automobile is used for the towing of any trailer owned or hired by the insured and not covered by like insurance in the company; or while any trailer covered by this policy is used with any automobile owned or hired by the insured and not covered by like insurance in the company; . . .
[Endorsement]
“It is agreed that such insurance as is afforded by the policy for Bodily Injury Liability, for Property Damage and for Automobile Medical Payments with respect to the automobile described above or designated in the policy as subject to this endorsement applies, subject to the following provisions:
“1. The insurance also applies to a trailer not described in the policy, if designed for use with a private passenger automobile, and if not being used for business purposes with any automobile other than the automobile herein designated, or a private passenger automobile.”

It appears, therefore, that the body of the policy under “Coverage A” obligates the Insurance Company in respect to the operation of the named automobile, the half-ton Chevrolet pickup truck. Under IV “automobile” is defined to include a trailer (designed for use with a passenger automobile) unless it is being used for business purposes with a nonpassenger or commercial-type vehicle. Since the phrase in IV (2) “another type automobile” follows the phrase “private passenger automobile,” it is obvious that the phrase “another type automobile” refers to a nonpassenger or commercial-type vehicle. Implicit in this provision of the policy is the proviso that there shall be coverage for all use, business or nonbusiness, with a passenger car. Nonbusiness use with the pickup truck is also covered. Only a business use with “another type automobile” is denied coverage.

The exclusion section provides that there will be no coverage unless auto and trailer are insured with the same company. It is undisputed that the Lincoln and the trailer were both insured with the Motor Club. It is the contention of Motor Club that the trailer was additionally insured with Westchester since by definition it was declared to be a vehicle entitled to coverage under IV (2) of Westchester’s policy. It is agreed by both parties that the trailer would be insured by Westchester as well as Motor Club if it were not for the exclusion clause. It is the contention of Motor Club, however, that the exclusion in Westchester’s policy is nullified by the endorsement.

The endorsement provides coverage not granted by the general coverage clause. The general coverage clause insured business and nonbusiness use if the trailer were hauled by a passenger automobile or if it were hauled by a nonpassenger or commercial-type vehicle for a nonbusiness use. Coverage was not afforded under IV (2) when the trailer was hauled by Mannino’s pickup truck when that vehicle was being used for business. The endorsement gave coverage under those conditions and also reiterated the coverage provisions of IV (2) applicable while being hauled by a private-passenger automobile. It was the position of the learned trial judge that this latter provision was an extension of coverage. However, a review of the general coverage clause indicates that the coverage in regard to the passenger automobile use is mere surplusage. It gave no additional coverage. The endorsement only extended coverage to a risk that was not previously embraced by the policy in respect to the business use with the described Chevrolet pickup truck.

This endorsement by its first sentence is clearly made subject to the conditions in the body of the policy. The beginning of that sentence reads, “It is agreed that such insurance as is afforded by the policy . . . applies.” This phrase evinces the intent that the endorsement be read in conjunction with the principal coverage clause of the policy. There is inconsistency only to the extent that the endorsement adds to the principal coverage clause. There is nowhere any evidence that this additional coverage was not to be subject to the exclusion as was the principal clause. The endorsement expressly states that it is subject to “such insurance as is afforded by the policy.” It is clear that the endorsement on its face indicates the intent that its provisions should be treated as Appleman, supra, page 294, suggests, “Endorsements or riders on a policy become a part of the policy, and must be construed with it.”

We cannot escape the conclusion that the phrase in the endorsement “such insurance as is afforded by the policy” refers to the entire body of the policy and when the endorsement in toto is read in conjunction with the policy, the exclusion is preserved and included in the endorsement. Under this construction all portions of the policy and of the endorsement are given effect. We therefore reverse the order of the circuit court.

By the Court. — Order of the circuit court overruling demurrer reversed, with directions to enter an order sustaining the demurrer to the complaint herein.

Wilkie, J.

(dissenting). I believe that the endorsement served to nullify the operation of Exclusion (c). To me there is an ambiguity between the provisions of the policy and those of the endorsement that must be resolved by resort to rules of construction applied to the endorsement and its effect on the policy. The endorsement is inconsistent with the policy and since the endorsement was agreed to at a later time I would conclude that its provisions should prevail.

If Westchester intended that the exclusion requiring the trailer to be used only with vehicles insured by Westchester was not to be abrogated by the endorsement, it could easily have made it clear by providing in the endorsement that it did nothing more than the appellant contends.

I would apply, as did the trial court, the well-established rule that where a provision in an insurance policy is ambiguous, it should be construed in favor of the insured.

I would affirm.

I am authorized to state that Mr. Justice Fairchild joins in this opinion.

        Britten v. Eau Claire (1952), 260 Wis. 382, 51 N. W. (2d) 30.

        Kaiser v. Prudential Ins. Co. (1956), 272 Wis. 527, 76 N. W. (2d) 311; Employers Mut. Liability Ins. Co. of Wisconsin v. Underwriters (D. C. Wis. 1948), 80 Fed. Supp. 353, affirmed (1949), 177 Fed. (2d) 249; Rood v. Merchants Ins. Co. (1942), 240 Wis. 329, 3 N. W. (2d) 353, 3 N. W. (2d) 680; Patterson v. Natural Premium Mut. Life Ins. Co. (1898), 100 Wis. 118, 75 N. W. 980; Merritt v. Great Northern Life Ins. Co. (1940), 236 Wis. 1, 294 N. W. 26; Kopp v. Home Mut. Ins. Co. (1959), 6 Wis. (2d) 53, 94 N. W. (2d) 224; Schluckebier v. Arlington Mut. Fire Ins. Co. (1959), 8 Wis. (2d) 480, 99 N. W. (2d) 705.


author: GORDON, J.

text:
    Sims, Appellant, v. Manson, Commissioner of Insurance, Respondent.

      September 4
    September 29, 1964.

      The cause was submitted for the appellant on the brief of Francis J. Skiba of Milwaukee, and for the respondent on the brief of George Thompson, attorney general, and A. J. Feifarek, assistant attorney general.
   GORDON, J.

“Immortal gods, I crave no pelf;
I pray for no man but myself:
Grant I may never prove so fond,
To trust man on his oath or bond.”

The reluctance to trust one’s fellowman which Shakespeare noted in Timón of Athens (act 1, scene 2) has given rise to the bail-bond business. The magnitude of this industry is well known to trial judges, especially in metropolitan areas where crime and poverty abound.

The regulatory rules adopted by the Commissioner of Insurance are not challenged on the ground that these particular rules are unreasonable; rather the contention is made by the appellant that the commissioner is without any authority to regulate the bail bondsmen. Accordingly, the issue for determination is the scope of the commissioner’s powers in relation to the bail-bond occupation; we will not consider the merits of the particular rules which purport to regulate the appellant’s vocation.

The appellant correctly contends that the commissioner’s powers are entirely statutory. He urges that the regulation of the bail-bond business is not included within the grant of powers afforded to the commissioner.

The stipulation of the parties establishes that the appellant charges a premium to the customer for the bond which is filed with the court by the fidelity company. Can it be said that the bail bondsman, as the agent for the fidelity company, is not engaged in the insurance business but instead is merely collecting a service fee in exchange for the credit which he has with the fidelity company ?

Mr. Sims argues that there is a significant difference between the receipt of a fee for services and the sale of insurance. He urges that his services are, at most, only incidental to the making of the indemnification agreement and are therefore excluded by sec. 201.42 (2) (a) 2, Stats.

The Wisconsin statutes do not define the elements of “insurance,” but a useful definition is found in Shakman v. United States Credit System Co. (1896), 92 Wis. 366, 374, 66 N. W. 528, which describes it as “a contract whereby one party agrees to wholly or partially indemnify another for loss or damage which he may suffer from a specified peril.” Another definition of insurance is that contained in Metropolitan Police Retiring Asso., Inc., v. Tobriner (C. C. A. D. C. 1962), 306 Fed. (2d) 775, 777:

“. . . insurance involves essentially a contractual security against anticipated loss. The risk of loss on the part of the insured is occasioned by some future or contingent event, and is shifted to or assumed by the insurer. There is also a distribution of the risk of loss by the payment of a premium or other assessment into a general fund. This permits the insurer to accept each risk at a small fraction of the possible liability upon it.”

For other definitions see Vance, Insurance (hornbook series, 3d ed.), ch. 2, p. 82, sec. 10.

Mr. Sims contracted to indemnify the fidelity company for the loss which the fidelity company would incur in the event the defendant failed to appear. We believe that the failure of the defendant to appear constitutes the peril, or contingent event, so as to come within the definitions of insurance referred to above.

Sec. 209.04 (3) (d), Stats., directs the commissioner to promulgate rules as “to the kind of insurance defined by any subsection of s. 201.04.” In sub. (7) of the latter statute, fidelity insurance is listed as one of the types of insurance which the commissioner may regulate. This subsection provides:

“Fidelity Insurance. — Against the loss from the defaults of persons in positions of trust, public or private, and to guarantee the performance of contracts and obligations.”

Since the appellant s vocation is to guarantee to the fidelity company that the accused person will meet his obligation of appearing in court, the transaction is within the scope of sec. 201.04 (7), Stats., which permits the regulation of insurance designed “to guarantee the performance of contracts and obligations.”

We reject the contention that the bail-bond salesman’s services are “incidental” to this contract. We deem them to be integral to the insurance agreement; indeed, the basic thing that the bail bondsman does is to bring the insuring agreement into existence.

The appellant also relies on the fact that a legislative bill (No. 465, S.) which would permit the Insurance Commissioner to regulate bail bondsmen was introduced in the 1963 session of the legislature and was not passed. The failure of such a bill to become enacted is in no way suggestive as to the state of the law in the absence of such legislation.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.


author: Currie, C. J. Beilfuss, J.

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

      August 31
    October 6, 1964.

      For the plaintiff in error there was a brief and oral argument by Warren L. Kreunen of Milwaukee.
    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the briefs were George Thompson, attorney general, William A. Plats, assistant attorney general, and William J. McCau-ley, district attorney of Milwaukee county.
    A brief amicus curiae was filed by James M. Shellow and Shellow & Shellow, all of Milwaukee, for the Milwaukee Chapter, American Civil Liberties Union.
   Currie, C. J.

The writ of error presents the issue of whether it was prejudicial error for the trial court to have denied the motion to suppress the evidence. To resolve this issue the court must resolve these subsidiary questions:

(1) Was the consent by defendant to the search of his person voluntary and not the product of duress ?

(2) If such consent was the product of duress, did it constitute an unconstitutional search ?

The provision of sec. 11, art I, Wis. Const., is identical to that of the Fourth amendment, United States constitution. This court long prior to Mapp v. Ohio (1961), 367 U. S. 643, 81 Sup. Ct. 1684, 6 L. Ed. (2d) 1081, had aligned itself with the federal rule that evidence secured as a result of a search and seizure that violates constitutional rights is inadmissible against a defendant charged with crime. Hoyer v. State (1923), 180 Wis. 407, 193 N. W. 89. Thus the Mapp Case, in making the Fourth amendment applicable to the states, has brought no change in Wisconsin in this respect. However, the decisions of the United States supreme court as to what acts constitute unlawful searches and seizures under the Fourth amendment are by that decision made controlling on all state courts. The Mapp decision also enhances the weight to be accorded by the states to other federal court determinations in this sphere.

Consent to Search.

Before reaching the issue of whether defendant’s constitutional rights were violated by the search in this case which revealed that he was the possessor of marijuana, we must first dispose of the threshold contention of the state that he voluntarily consented to such search. This contention is grounded upon defendant’s statement to the two officers, “Go ahead. I am clean.” On the other hand, defendant maintains that this consent was the product of duress and therefore not voluntary.

In Holt v. State (1962), 17 Wis. (2d) 468, 117 N. W. (2d) 626, we were faced with the issue of whether voluntary consent had been given to search a home without a search warrant. While that case involved search of premises and not of the person, we deem the guiding principles to be applied in determining whether a consent to search has been tainted by duress are the same. These principles are: A search and seizure are not in violation of constitutional rights if the person freely and intelligently gives his unequivocal and specific consent to the search, uncontaminated by any duress or coercion, actual or implied; the state has the burden of proving by clear and positive evidence that such consent was given. Holt v. State, supra, pages 474, 475. See also United States v. Smith (2d Cir. 1962), 308 Fed. (2d) 657, 663; McDonald v. United States (10th Cir. 1962), 307 Fed. (2d) 272, 274; Channel v. United States (9th Cir. 1960), 285 Fed. (2d) 217, 219; Judd v. United States (D. C., D. C. 1951), 190 Fed. (2d) 649, 650.

In the instant case we do not have the benefit of any finding of fact by the trial court with respect to whether or not defendant voluntarily consented to the search. We, therefore, must make our own independent determination of this factual issue upon the evidence before us. The rule in the federal courts is that, where the trial court upon conflicting evidence finds that the search was voluntarily consented to, such finding will not be upset unless clearly erroneous. McDonald v. United States, supra, at page 275; United States v. Page (9th Cir. 1962), 302 Fed. (2d) 81, 85; United States v. Ziemer (7th Cir. 1961), 291 Fed. (2d) 100, 102.

The federal cases also hold that where, as here, the defendant is under arrest, the government’s burden to prove voluntary consent is greater. United States v. Page, supra, at page 84; Judd v. United States, supra, at page 651. The instant defendant was not only under arrest, before the search was undertaken and he made the statement indicating consent, but he had been informed by one of the officers in effect that this justified the search. On the other hand, defendant was asked this question and gave this answer thereto :

“Q. Did you know that there was marijuana in any of your pockets at the time the officers searched your clothes on December 8, 1962 ? A. I did not.”

This facet of the evidence makes the instant case closely akin to the situation where the defendant permits a search of his home or apartment in the mistaken belief that he has nothing there which will incriminate him. The latter situation has been held to fall within the scope of voluntary consent. United States v. De Vivo (D. C. N. Y. 1961), 190 Fed. Supp. 483; United States v. Dornblut (2d Cir. 1958), 261 Fed. (2d) 949; certiorari denied (1959), 360 U. S. 912, 79 Sup. Ct. 1298, 3 L. Ed. (2d) 1262. See also United States v. Smith, supra, at page 663.

The facts in both the De Vivo and Dornblut Cases are readily distinguishable from those in the instant case. In De Vivo the officers courteously requested permission to search without any indication that they would have made the search if permission had been refused. This was also the situation in Holt v. State, supra, except there the defendant had reason to believe the body of the baby might be found. The defendant in Dornblut invited the federal officers up to his apartment and told them, “Go right in. You can look around.” In none of these cases was the defendant under arrest when the consent to search was given.

This is a close case on the issue of consent, because defendant thought he was “clean.” Nevertheless a majority of the court conclude that the consent given was tainted with duress and therefore not freely and voluntarily given. Not only was defendant then under arrest but he knew from the statement of the officer that his person would be searched regardless of whether he consented or not.

Legality of the Search.

On this writ of error we are not concerned with the legality of the search of defendant’s automobile but only with the search of his person. Furthermore, no question has been raised about the validity of defendant’s arrest for the traffic offense which preceded the search. Therefore, the validity of the search depends upon whether or not it was justified by the arrest.

This court very recently reaffirmed the well-recognized principle of criminal law that the police following a valid arrest “may, without a search warrant, conduct a search of the person in order to protect themselves.” Browne v. State (1964), 24 Wis. (2d) 491, 502, 129 N. W. (2d) 175. The United States supreme court earlier this year in Preston v. United States (1964), 376 U. S. 364, 367, 84 Sup. Ct. 881, 11 L. Ed. (2d) 777, stated:

“Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make a contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. Weeks v. United States, 232 U. S. 383, 392 [34 Sup. Ct. 341, 58 L Ed. 652] (1914); Agnello v. United States, 269 U. S. 20, 30 [46 Sup. Ct. 4, 70 L Ed. 145, 51 A.L. R.409] (1925).”

Up to now there has been no decision by the United States supreme court which qualifies the above-stated rule and makes it inapplicable to arrests for minor traffic violations. The Illinois and Michigan courts have adopted such a qualification. People v. Watkins (1960), 19 Ill. (2d) 11, 166 N. E. (2d) 433; People v. Mayo (1960), 19 Ill. (2d) 136, 166 N. E. (2d) 440; People v. Gonzales (1959), 356 Mich. 247, 97 N. W. (2d) 16; People v. Ziegler (1960), 358 Mich. 355, 100 N. W. (2d) 456. While the Mayo and Gonzales Cases dealt with the search of a defendant’s car and not his person, it is clear that these two courts do not draw any distinction between the two. However, from the standpoint of the reasonableness of the search for weapons in order to protect the life of the arresting officer, the search of the trunk of a car might well be held to stand in a different category from that of the search of the person of the defendant.

The view that not every case of a lawful arrest for a traffic violation justifies a search of the person of the defendant for weapons finds support in these articles and comments in law reviews: Simeone, Search and Seizure Incident to Traffic Violations, 6 St. Louis University Law Journal (1961), 506; Note, Search and Seizure — Search Incident to Arrest for Traffic Violation, 1959 Wisconsin Law Review, 347; Note, Search and Seizure Incident to Traffic Violations, 14 Hastings Law Journal (1963), 459. A contrary view is expressed in Agata, Searches and Seizures Incident to Traffic Violations — A Reply to Professor Simeone, 7 St. Louis University Law Journal (1962), 1. The Gonzales Case is criticized as unsound in, Limitation on Expanding Scope of Legality of Searches and Seizures in Michigan, 9 Buffalo Law Review (1960), 382.

We are not persuaded that where a traffic offender actually is arrested, as distinguished from being handed a summons to appear in court at some future time, that it is unreasonable for the arresting officer to search his person for weapons. In a recent California case the court took note of numerous attacks which have been made upon law-enforcement officers seeking to interrogate occupants of automobiles. People v. Davis (1961), 188 Cal. App. (2d) 718, 722, 10 Cal. Rptr. 610. A striking example of this is afforded by Brook v. State (1963), 21 Wis. (2d) 32, 123 N. W. (2d) 535. Some of the most dangerous criminals are as well dressed and peaceful appearing as the majority of law-abiding citizens. It seems to us that the protection of the lives of our law-enforcement officers outweighs the slight affront to personal dignity of the arrested person who undergoes a search for weapons. We find the arguments advanced in favor of this position in Agata, Searches and Seizures Incident to Traffic Violations — A Reply to Professor Simeone, 7 St. Louis University Law Journal (1962), 1, most persuasive.

The policy of the law, which permits arrest for minor traffic violations instead of prescribing the issuance of a summons without taking the defendant into custody as the exclusive police action, .might well be reconsidered. However, that lies within the province of the legislature, not this court.

However, all searches by police officers are subject to the requirement of reasonableness. This is implicit in the wording of both sec. 11, art. I, Wis. Const., and the Fourth amendment. Not only was defendant “patted down” but the officers searched the inside of his overcoat pocket with a flashlight. We cannot conceive that this aspect of the search was a legitimate search for weapons. The only reasonable inference to be drawn from this action was that these vice-squad officers assigned to the narcotics division were searching for narcotics. We reject the state’s contention that any search of the person of one lawfully arrested is a valid search. Such search to be reasonable must be limited to weapons or the fruits or instrumentalities of the crime for which the defendant was arrested. Agnello v. United States, supra, at page 30. Here there could be no fruits of the misdemeanor of driving with a nonoperating brake light. We have no hesitancy in holding that this use of the flashlight to uncover marijuana weed fragments in defendant’s overcoat pocket transcended the bounds of reasonableness. Therefore, the evidence secured by this unreasonable search should have been excluded. Any admissions thereafter made by defendant with respect to these marijuana weed fragments were the product of this unconstitutional search and were likewise inadmissible. Without such improperly received evidence there would be no possibility of convicting defendant and therefore his discharge from custody will be directed.

While defendant conceded the lawfulness of the arrest, we deem it advisable to add the observation that the type of search here conducted raises a strong suspicion that the original arrest for the minor traffic offense committed was but a pretext to search defendant for narcotics. Cf. Taglavore v. United States (9th Cir. 1961), 291 Fed. (2d) 262, 265. As the United States supreme court declared in United States v. Lefkowitz (1932), 285 U. S. 452, 467, 52 Sup. Ct. 420, 76 L. Ed. 877, “An arrest may not be used as a pretext to search for evidence.”

By the Court. — Judgment reversed, and cause remanded with directions to enter a judgment of dismissal and discharge of plaintiff in error.

Beilfuss, J.

(dissenting). I cannot agree with the conclusion of the majority that the plaintiff in error’s consent was not freely and voluntarily given because of circumstances implying duress.

I deplore, as the majority does, the police methods disclosed by this record, and I agree that the search, independent of any question of consent, was unreasonable. But the question is whether the statement by the police that they had a right to search the plaintiff in error because of the arrest constitutes duress as a matter of law.

The record in this case revéals that the plaintiff in error had been previously convicted of a narcotics violation and other felonies. This fact was known to both the police and the plaintiff in error prior to any attempt to search. I am convinced that the plaintiff in error knew why the officers wanted to search him and that he probably would be prosecuted if the officers found narcotics in the search. After the officers told him they had a right to search him because of his arrest on the traffic violation he did not dispute the claimed right, protest the search, nor even remain silent although previously having had the experience of being arrested. He affirmatively consented by his statement, “Go ahead. I am clean.” Considering all the facts in the record as they pertain to the entire question of consent, I cannot find that his consent to search was given by reason of duress, actual or implied. I conclude that at the time of the search the plaintiff in error knowingly and willingly gave consent, if not invitation, to search his person. The fact that plaintiff in error was mistaken in his belief that he had no drug on him only reinforces the conclusion that his consent was freely given. Self-serving claims of duress affecting his subjective state of 'mind, voiced only after the fruits of the search resulted in a prosecution, should be scrutinized, not preferred.

Implicit in the reasoning of the majority is the proposition, which I reject, that consent to an unreasonable search is an objective, rather than a subjective, determination. Circumstances implying duress may well increase the state’s eviden-tiary burden in establishing unequivocal consent to an otherwise unlawful search. However heavy that burden may be, in my opinion it has been met in this case. I would affirm on the ground that the plaintiff in error gave his consent to an otherwise unreasonable search.

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

       This section of the Wisconsin constitution provides:
      “The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.”

       At the trial the officers varied their testimony as given on the motion to suppress and testified that, prior to the search of the person, one officer asked defendant “if he had anything on him,” and defendant then replied, “Go ahead and search. I am clean.”