author: Fairchild, J. Hallows, J.

text:
    State ex rel. Reiss, Appellant, v. Board of Review of Town of Erin, Respondent.

      November 3

    December 1, 1965.

      For the appellant there was a brief and oral argument by Richard V. Reiss of Milwaukee.
    For the respondent there was a brief by Simester, Schowalter & Bunk of West Bend, and oral argument by Henry 0. Schowalter.

   Fairchild, J.

The critical question is whether taxpayer never obtained a right to a hearing because he failed to file a completed form of objection. If he had a right to a hearing, then the board improperly terminated it. If he had no right to a hearing, he cannot complain of the board’s refusal to continue.

The controlling statute is sec. 70.47 (7) (a), Stats. It provides:

“Objections to the amount or valuation of property shall first be made in writing and filed with the clerk of the board of review prior to adjournment of public hearings by the board. If the board is in session 5 days, including its first meeting and any adjourned meetings, all objections shall be filed within such time unless failure to file within such time is waived by the board upon a showing of good cause for such failure. The board may require such objections to be submitted on forms approved by the department of taxation. No person shall be allowed in any action or proceedings to question the amount or valuation of property unless such written objection has been filed and such person in good faith presented evidence to such board in support of such objections and made full disclosure before said board, under oath of all of his property liable to assessment in such district and the value thereof. The requirement that it be in writing may be waived by express action of the board.”

The record shows that the board consistently took the position that the form filed by the taxpayer was incomplete and insufficient, and that the board did not waive the requirement that a proper written objection be filed. Apparently on August 10th, the board was willing to permit taxpayer to present his case on the merits so that if the court should ultimately rule, as claimed by the taxpayer, that the objection he filed was sufficient, the merits would have been heard and further hearing would be unnecessary. After spending many hours on August 10th and 13th, listening to cross-examination of the assessor, the members of the board evidently concluded that the presentation of the merits would consume a great deal of time and that it was better to abandon the original plan. The hearing was then terminated.

We have previously quoted the comment of the learned circuit judge, indicating that no useful purpose was being accomplished by the examination of the assessor, and upon our reading of the record, we agree.

The printed form involved in this matter is reproduced herewith. Taxpayer contends that the form consists of two parts: (1) The objection, and (2) information in support of the objection. Part (1), according to taxpayer, is the upper portion of the page, in which the description of property, amount of assessment, and reasons for objection are to be filled in. This portion, according to taxpayer, closes with the words: “and it is requested that this assessment be reviewed as provided for by law.” Part (2), according to taxpayer, is the lower portion of the page, beginning: “In support of this objection, the following pertinent information is submitted.”

Taxpayer had completed part (1), but had not supplied the information called for in part (2).

We consider the types of information called for in part (2) to be relevant to the issues ordinarily raised on objection to an assessment, helpful to the board in the performance of its duty, and not unduly burdensome to the taxpayer. The statute does not specify the elements which must be included in a written objection, but does provide: “The board may require such objections to be submitted on forms approved by the department of taxation.” We interpret the statute as giving the board, with the approval of the department, reasonable latitude in specifying relevant information which must be supplied as part of a written obj ection.

Taxpayer would concede that the board can insist upon the completion of part (1), but would deem the completion of part (2) optional. We, however, conclude that the entire form is authorized by the statute, and the board may insist upon completion of it.

During the hearing on July 30th, answers were written in a number of the blanks in part (2). Some were crossed out and others substituted. The final answer to “What is the present fair market value of the property” was “I do not know.” Even if it were considered that the board had accepted the answers to other questions, this answer remained insufficient. Surely the single most important fact relevant to an assessment is the fair market value of the property, and a taxpayer who desires to proceed with an objection in good faith must be prepared to take a position as to what the fair market value is. Fair market value is not conclusive, where, for instance, the property in the taxing district is consistently underassessed, but it is always relevant.

Taxpayer contends that answers to part (2) constitute written evidence and cites State ex rel. deForest v. Hobe as holding that only oral and not written evidence can be considered by a board of review. The Hobe Case, however, involved a deposition, and relied upon the part of the statute requiring the board to examine persons who appear. The present statute expressly authorizes the board to compel the production of documentary evidence. In any event, sec. 70.47 (7) (a), Stats., authorizes, in our opinion, the form which the department has approved and the board insisted upon.

Taxpayer argues that the real reason the board decided to terminate the hearing was that the assessor’s testimony demonstrated that he had followed an illegal method of assessment. The written objection being insufficient, the board’s- motive in terminating the hearing may be immaterial. We consider it appropriate to say, however, that the suggestion that the board terminated the hearing in order to save an obviously improper assessment is unwarranted.

In 1963 the total assessment had been $27,000, and it was taxpayer’s position that he had not added $13,500 in improvements and therefore the $40,500 assessment in 1964 was excessive.

It appears from the assessor’s testimony, however, that the property had been originally assessed in the light of use for farming. It had just, however, been taken over by a commercial enterprise known as Powder Horn Limited. The land was to be used, on a fee basis, for hunting, hiking, swimming, fishing, horseback riding, and a day camp. One pond had been constructed and construction was about to begin on a second. The assessor concluded from this development of a new, commercial, use that portions of the land (marsh and woodland, for instance) had greater value than had been determined when considered as parts of a farm. The taxpayer had remodeled a house, formerly assessed at $1,600, and the assessor testified that he and taxpayer had talked about its value, and agreed on an assessment of $7,000.

A fact which taxpayer did produce at the hearing, although the assessor had not known it, was that taxpayer purchased the property in March, 1963, fourteen months before the assessment, for $45,000. Improvements were made to some extent, and these facts strongly suggest that the fair market value on May 1, 1964, was in excess of the $40,500 assessment.

“. . . A taxpayer has no complaint when a valuation which could ordinarily be obtained therefor at private sale is placed upon his property, unless there is such a general undervaluation of the other property of the assessment district as will result in an excessive tax as to him.”

By the Court. — Judgment affirmed.

Hallows, J.

(dissenting). I consider the form although “somewhat butchered” with answers to be completely filled out and sufficient. No question is left unanswered. The position of the board of review and of the majority of the court rests on the slender thread of the answer “I don’t know” as being insufficient to a factual inquiry of what is the present fair market value of the property. This question did not ask the owner’s opinion as to the fair market value or what value he was claiming. The inquiry sought a factual answer which is adequately answered by “I don’t know.” If the question be considered as calling for the owner’s opinion, the answer is of little importance because the objection of the owner is to the value of the property as determined by the assessor.

I think the board of review was wrong in discontinuing the hearing on the ground of an alleged incompleteness of the form. This action cannot be justified by makeweight reasons that the examination of the assessor was time-consuming and a harassment and the majority’s indication the owner probably would not win in any event because of the purchase price of the land and of the court’s view of the assessor’s testimony. The evidence relating to the merits of the objection has no bearing on whether the board could discontinue the hearing for the reason it gave.

I would reverse.

       (1905), 124 Wis. 8, 102 N. W. 350.

       Sec. 70.47 (8) (d), Stats.

        State ex rel. Walthers v. Jung (1921), 175 Wis. 58, 61, 183 N. W. 986.


source: Caselaw Access Project

author: Beilfuss, J. Wilkie, J.

license: Public Domain

text:
    Hanz Trucking, Inc., Respondent, v. Harris Brothers Company, Crestline Division, Appellant.

      November 2

    December 3, 1965.

      For the appellant there was a brief by Smith, Puchner, Tinkham & Smith of Wausau, and oral argument by Richard P. Tinkham.

    For the respondent there was a brief by Crooks & Crooks of Wausau, and oral argument by Clayton J. Crooks.

   Beilfuss, J.

The issues raised are as follows:

(1) Is the minimum mileage provision of the contract ambiguous?

(2) Did retention of the check constitute an accord and satisfaction ?

(3) Did the failure of plaintiff to bill on a monthly minimum basis constitute either waiver or estoppel?

(4) Has plaintiff established damages awarded by the trial court?

The trial court permitted parol testimony to be received in evidence at the trial, over the objection of Hanz, as an aid in interpreting and construing the disputed minimum mileage provision of the contract. The disputed language is “subject to a minimum of four thousand five hundred (4500) miles per month.” (The 1962 contract provided for 5,500 miles per month.)

While there may be some question as to whether the language of the challenged clause, given its common and ordinary meaning, can admit of more than one interpretation, the trial court did receive the offered parol testimony and then found no ambiguity existed. The respondent Hanz does not on appeal challenge the trial court ruling admitting the parol evidence but contends that the finding of no ambiguity by the trial court is not against the great weight and clear preponderance of the evidence and cannot, therefore, be disturbed on appeal.

We deem the trial court properly received the parol testimony as an aid in determining whether ambiguity existed in the language of the contract.

“3 Williston, Contracts (rev. ed.), pp. 1807, 1808, sec. 629, suggests that the test, of whether a written contract is so unambiguous as not to render admissible any testimony of surrounding circumstances, is dependent on whether the words used are so clear that the offered evidence ‘would not persuade any reasonable man that the writing meant anything other than the normal meaning of its words would indicate.’ The author quotes with approval the following statement made by Judge Learned Hand in Eustis Mining Co. v. Beer, Sondheimer & Co. (D. C. 1917), 239 Fed. 976, 985:
“ ‘All the attendant facts constituting the setting of a contract are admissible, so long as they are helpful; the extent of their assistance depends upon the different meanings which the language itself will let in. Hence we may say, truly perhaps, that, if the language is not ambiguous, no evidence is admissible, meaning no more than that it could not control the sense, if we did let it in; indeed, it might “contradict” the contract — that is, the actual words should be remembered to have a higher probative value, when explicit, than can safely be drawn by inference from surroundings. Yet, as all language will bear some different meanings, some evidence is always admissible; the line of exclusion depends on how far the words will stretch, and how alien is the intent they are asked to include.’
“Professor Corbin, in his recent excellent work on the law of contracts, states (3 Corbin, Contracts, p. 70, sec. 542) :
“ ‘There are, indeed, a good many cases holding that the words of a writing are too “plain and clear” to justify the admission of parol evidence as to their interpretation. In other cases, it is said that such testimony is admissible only when the words of the writing are themselves “ambiguous.” Such statements assume a uniformity and certainty in the meaning of language that do not in fact exist; they should be subjected to constant attack and disapproval.’ (Emphasis supplied.)
“Among the surrounding circumstances that are admissible for the purpose of interpreting the language of a contract are the ‘acts and statements of the parties antecedent to and contemporaneous with the making of the contract.’ 3 Corbin, Contracts, p. 72, sec. 543.” Georgiades v. Glickman (1956), 272 Wis. 257, 264, 265, 75 N. W. (2d) 573.

In the instant case the parol testimony dealt primarily with acts and statements antecedent to and contemporaneous with the making of the 1962 and 1963 contracts.

The trial court considered the language of the contract, namely the minimum miles “per month” and the testimony offered by both sides as to what they understood and agreed upon, and the fact that Hanz had not billed Crestline on a minimum monthly basis. The testimony was in conflict in some respects and more than one inference could be drawn from some of the undisputed facts. In the memorandum opinion filed by the trial judge, he stated: “The court would like to point out further that it has re-read the testimony of both Mr. Hamers and Mr. Kabella, and save for in one or two instances, the court believes that although these men may have been of the impression that the agreement should be computed on an annual basis, the court does not believe that this was definitely conveyed to or agreed upon by the plaintiff, as is borne out by their testimony in this regard. The court felt Mr. Kabella to have been somewhat evasive in his testimony concerning whether or not there actually was conversation between he and Hanz’s as to how the rental should be computed.” The court concluded: “. . . this court believes that the proper interpretation of the agreement is that the agreement means just what it says, that the miles should be computed on a monthly basis and that if the vehicles are not driven 7,200 miles per month, that the plaintiff should be paid for 7,200 miles at 22‡ per mile per month.”

The weight of the testimony and the credibility of the witness are primarily for the trial court; further, where more than one reasonable inference can be drawn from the credible evidence we must accept the one drawn by the trier of the fact.

We conclude that the trial court’s finding that Hanz had not agreed to an annual minimum mileage and that the contract entered into by the parties providing for monthly minimum mileage “means just what it says,” are not against the great weight and clear preponderance of the credible evidence and cannot, therefore, be set aside upon appellate review.

Crestline contends that Hanz is not entitled to a recovery by virtue of the doctrine of accord and satisfaction. After Crestline gave notice in April of 1964 that it would not renew that contract, Hanz billed Crestline for the amounts due under the 1962 and 1963 contracts, including monthly minimum charges over and above actual mileage for four months for each year covered by the 1962 and 1963 contracts. Crestline deducted the amounts claimed for more than the actual mileage and sent Hanz a check with a notation that it was payment in full. This check was dated June 26, 1964. Hanz received the cheek and held it through the time of suit, August 13, 1964, the time of trial, December 11, 1964, and it remains un-cashed and part of the record at this time.

“A creditor to whom remittance is made as payment in full of an unliquidated or disputed claim has the option either of accepting it upon the condition on which it was sent or of rejecting it, and if it clearly appears that the remittance was sent upon the condition that it be accepted in full satisfaction, then failure to reject it will result in an accord and satisfaction.” 1 Am. Jur. (2d), Accord and Satisfaction, p. 315, sec. 18.

So far as holding a check is concerned, it is said:

“Where a creditor receives a check from his debtor containing the words ‘payment in full,’ ‘final settlement,’ or other words of similar import, it is his duty to repudiate the offer and return the check or money remitted within a reasonable time after it is received if he does not care to receive it in full discharge of the indebtedness.” 1 Am. Jur. (2d), Accord and Satisfaction, p. 321, sec. 23. See also 6 Williston, Contracts (rev. ed.), pp. 5213-5216, sec. 1854.

Anno. 13 A. L. R. (2d) 736, considers cases where a check is received and not cashed or otherwise used. Cases holding that retention of a check for a particular length of time is unreasonable are: Curran v. Bray Wood Heel Co., Inc. (1949), 116 Vt. 21, 68 Atl. (2d) 712 [sixteen months before suit and three months after]; Seidman v. Chicago Eye Shield Co. (1932), 267 Ill. App. 77 [over six years]; Day-Luellwitz Lumber Co. v. Serrell (1913), 177 Ill. App. 30 [bank draft held three and one-half months] ; Donovan v. Maloney (1912), 26 Del. (3 Boyce) 453, 84 Atl. 1032 [six months]; Warren v. New York Life Ins. Co. (1936), 40 N. M. 253, 58 Pac. (2d) 1175 [six months] ; Bloomquist v. Johnson (1903), 107 Ill. App. 154 [held a “few weeks”] ; Baggett v. Chavous (1963), 107 Ga. App. 642, 131 S. E. (2d) 109 [twenty-two months].

Cases which have held the retention not unreasonable or for the jury are: Siegel v. Cohen (1918), 210 Ill. App. 338 [twelve days]; Patten v. Lynett (1909), 133 App. Div. 764, 118 N. Y. Supp. 185 [one check about a month and another about six weeks]; American Nat. Bank v. Bradford (1945), 28 Tenn. App. 239, 188 S. W. (2d) 971 [three months]; Meier v. Texas Co. (D. C. Pa. 1958), 168 Fed. Supp. 119 [seven months]; Chesapeake Industries v. Brandt (1954), 137 N. Y. Supp. (2d) 195 [five months].

One Wisconsin case, Frank v. Frost (1919), 170 Wis. 353, 174 N. W. 911, held that retention of a check three months before tendering it back did not constitute an accord and satisfaction. On the basis of these cases it appears that holding a check from June 26th to August 13th, or even until December 11th, would not constitute an unreasonable time as a matter of law. Once suit was started on August 13th, it became clear that Hanz had not accepted the check on the terms under which it was presented. Thus, for purposes of this doctrine, Hanz has held the check only about six weeks. Thus we agree that retention of the uncashed check under the circumstances of this case did not constitute an accord and satisfaction.

Crestline next contends that “waiver and estoppel now prevents Hanz from claiming minimum mileage on a month by month basis.”

“ Waiver’ is defined as voluntary and intentional relinquishment of a known right. As said in Nolop v. Spettel (1954), 267 Wis. 245, 249, 64 N. W. (2d) 859:
“ ‘A waiver is the intentional relinquishment of a known right.’ Swedish American Nat. Bank v. Koebernick, 136 Wis. 473, 479, 117 N. W. 1020. ‘Since an intention to relinquish an existing right or advantage is generally regarded as an essential of a waiver, it follows that it must be shown by the party claiming a waiver that the person against whom the waiver is asserted had at the time knowledge, actual or constructive, of the existence of his rights or of the facts upon which they depended. Ignorance of a material fact negatives a waiver. Waiver cannot be established by a consent given under a mistake of fact.’ 56 Am. Jur., Waiver, p. 114, sec. 14.” Davies v. J. D. Wilson Co. (1957), 1 Wis. (2d) 443, 466, 467, 85 N. W. (2d) 459.

In Nelson v. Caddo-Texas Oil Lands Co. (1922), 176 Wis. 327, 329, 186 N. W. 155, the court said:

“. . . Intent to waive is an essential element of waiver. While the intent to waive may be inferred as a matter of law from the conduct of the parties (Pabst B. Co. v. Milwaukee, 126 Wis. 110, 117, 105 N. W. 563), it is to be determined as a question of fact where the inference does not conclusively arise as a matter of law. Robinson v. Pennsylvania F. Ins. Co. 90 Me. 385, 38 Atl. 320; Fishback v. Van Dusen, 33 Minn. 111, 22 N. W. 244.”

It appears without dispute that Hanz had not billed Crestline for minimum monthly miles over and above actual miles prior to the notice terminating the contract. Does this failure constitute a waiver; is it a voluntary and intentional relinquishment of a known right?

Intention to relinquish the right is an essential element of waiver. The trial court in concluding the contract was not ambiguous found that Hanz had not agreed to an annual minimum mileage and that the parties had agreed to a monthly minimum mileage. The claims for minimum monthly mileage charges in this action are limited to four months in each of the 1962 and 1963 contract years. Any delinquent monthly mínimums for the years 1959 through 1961 were foregone by the agreement of the parties prior to the execution of the 1962 contract. The trial court found in substance that Hanz did not in fact ever intend to relinquish his right to claim the mínimums for 1962 and 1963. This finding is supported by the testimony of Hanz and the undisputed fact that the monthly mínimums of 7,200 miles for 1959-1961 contracts were reduced to 5,500 and 4,500 miles per month for the years 1962 and 1968. Again we cannot conclude this finding is against the great weight and clear preponderance of the evidence and consequently cannot say there was a waiver as a matter of law.

A more troublesome problem is the contention of estop-pel.

While the doctrines of waiver and estoppel lend themselves to separate definitions, because some of the same facts may affect both doctrines, the distinction between the two is sometimes difficult to demonstrate. The difficulty is pointed out in Davies v. J. D. Wilson Co., supra, at page 469:

“31 C. J. S., Estoppel, p. 245, sec. 61b, points out:
“ ‘Waiver and estoppel or estoppel in pais are closely related; the line of demarcation between them is said to be very slight, since both partake of somewhat the same elements and ask essentially the same relief; and the terms are frequently and loosely used as convertible, especially where waivers implied, and estoppels arising, from conduct are involved, the dividing line being very shadowy in such cases and it being often a difficult question to determine just where the doctrine of implied waiver ends and that of estoppel begins. Where the waiver relied on is constructive, or merely implied from the conduct of a party, irrespective of what his actual intention may have been, it is at least questionable if there are not present some of the elements of estoppel. It has been declared on the one hand, that estoppel is a species of waiver, and, on the other hand, that waiver belongs to the family, and, according to the judicial decisions on the subject, is in the nature, of estoppel.’ ”

In the recent case of City of Milwaukee v. Milwaukee County (1965), 27 Wis. (2d) 53, 66, 133 N. W. (2d) 393, we defined estoppel in pais as follows:

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

Kabella, for Crestline, testified that it was induced to enter into the contracts of 1962 and 1963 in reliance upon the fact that Hanz had not billed Crestline for monthly minimum mileage and that Crestline would have, but did not exercise its right to terminate the contract with a thirty-day notice, as it had a right to do, because it relied upon Hanz’s course of conduct in not billing on a monthly minimum basis. Hanz countered this testimony by stating that the substantial reduction from 7,200 miles to 5,500 miles in 1962, and further to 4,500 miles in 1963, was done at the insistence of Crestline and was understood by Hanz as an acknowledgment by Crestline that monthly mínimums were agreed to.

The trial court, in passing upon the testimony of Kabel-la, found it was somewhat “evasive” as to whether there was a conversation between Hanz and Kabella on how the rental should be computed. As to the factual issue of reliance, the trial court felt it was significant that the release of the 1959-1961 agreements was entered into at the same time as the 1962 agreement with a substantial reduction in monthly minimum miles; and that in both 1962 and 1963, when reductions in monthly mileage were inserted in the contracts, Crestline could have insisted on an annual minimum mileage if that was in fact the agreement. A further fact alluded to by the trial court was that under both the 1962 and 1963 contracts there were only four months of each year wherein the billing was less than the contract minimum. Under these facts and findings by the trial court we cannot conclude as a matter of law that the conduct of Hanz was inconsistent with terms of the contract to such a degree as to compel a finding that Crestline reasonably relied upon Hanz’s conduct to its detriment and that Hanz should not be permitted by equitable considerations to assert its contract rights. More simply stated, the evidence will permit the finding that Crestline did not have reasonable grounds of reliance that the terms of the contract would not be enforced.

The final contention of Crestline is that the proof in the record does not support any damage award and that Hanz’s complaint should be dismissed. The court awarded damages at 22 cents per mile upon minimum monthly mileage provisions of the contract pursuant to the demand of the complaint.

The contract, however, provides that Hanz was to furnish the gas and oil, and the maintenance and repair for the vehicle. The only testimony as to damages was by Hanz to the effect that it cost 21 cents per mile for gas, oil, repair, and maintenance, including insurance and depreciation. The contract does not provide for liquidated damages or separate means of calculating damages for mileage less than the mínimums provided by the contracts.

Obviously Hanz was not required to expend funds for gas and oil and probably maintenance and repair when the vehicle was not used.

Contract damages are to be compensatory. Dehnart v. Waukesha Brewing Co. (1963), 21 Wis. (2d) 583, 124 N. W. (2d) 664; 5 Williston, Contracts (rev. ed.), p. 3763, sec. 1338. A party is not entitled to be placed in a better position because of a breach than he would have if the contract had been performed. Dehnart, supra. In this case respondent is entitled to the benefit of his bargain, but that is not 22 cents per mile. His expenses had to come out of this 22 cents and should be deducted. See Schubert v. Midwest Broadcasting Co. (1957), 1 Wis. (2d) 497, 502, 85 N. W. (2d) 449; Allen v. Murray (1894), 87 Wis. 41, 57 N. W. 979; Walsh v. Myers (1896), 92 Wis. 397, 66 N. W. 250; Spafford v. McNally (1907), 130 Wis. 537, 110 N. W. 387. In Schubert v. Midwest Broadcasting Co., supra, at pages 502, 503, we stated:

“. . . Plaintiff’s damages are that sum less any savings accruing to plaintiff because he was not able to complete the contract. The burden of proof was upon the plaintiff to establish his loss. We feel there should be few exceptions to this general rule because only the plaintiff has the knowledge and the figures to prove that saving. In Restatement, 1 Contracts, p. 515, sec. 331, and p. 533, sec. 335, is the general rule for establishing the amount of damages. These sections read as follows:
“‘(1) Damages are recoverable for losses caused or for profits and other gains prevented by the breach only to the extent that the evidence affords a sufficient basis for estimating their amount in money with reasonable certainty.’ (Sec. 331.)
“ Tf the defendant’s breach of contract saves expense to the plaintiff by discharging his duty of rendering a performance in return or by excusing him from the performance of a condition precedent, the amount of this saving is deducted from the damages that would otherwise be recoverable.’ (Sec. 335.) ”

This is also the rule of Williston:

“Compensation involves not only assessment of gains prevented by the breach but also of losses ensuing which would not have occurred had the contract been performed. From these must be deducted any saving to the plaintiff due to the non-performance of the contract. ...” 5 Williston, Contracts (rev. ed.), p. 3764, sec. 1338.

The plaintiff Hanz has the burden to prove his compensatory damages. It is clear from the record that this issue has not been tried. We therefore reverse under sec. 251.09, Stats., and order a new trial limited to the issue of damages.

By the Court. — Judgment reversed, and cause remanded for a new trial on the issue of damages.

Wilkie, J.

(dissenting). I respectfully dissent because I would dismiss the complaint on the ground that Hanz is estopped to assert its claim for truck rent as against Crestline. As stated in the majority opinion, estoppel in pais was defined recently by the court as set forth in City of Milwaukee v. Milwaukee County as follows:

“An estoppel in pais consists of action or nonaction on the part of the one against whom the estoppel is asserted which induces reliance thereon by another, either in the form of action or nonaction, to his detriment.”

In essence, I believe that Hanz is estopped here because of its “action or nonaction” in sending Crestline bills from 1959 through May, 1964, for actual monthly mileage rather than minimum monthly mileage, which induced “reliance” thereon by Crestline to its “detriment,” shown by payment of each bill as submitted and by continual renewal of the contract and by Crestline’s failure to terminate, as it would have done if rentals were based on minimum monthly amounts. The first bill sent by Hanz on the basis of minimum monthly mileage was sent to Crestline after Hanz received a notice of termination of the lease on April 22,1964.

Although there is no specific finding of fact by the trial court on the question of estoppel, in its memorandum decision the court states that, in view of the fact that as the years passed under the contract “the parties saw fit to reduce the number of miles required per month from 7,200 all the way down to 4,500 . . . these men could not have understood this to mean that they were not being held responsible for these miles on a monthly basis, since it would have been just as easy to incorporate a yearly average figure and change the contract in that respect if it had not been meant to say just what was said in the contract and to perform it in the manner in which it so states.” Thus, the court engaged in speculation about what the parties might have done, whereas the actual record of what was done actually supports only one conclusion, that there was an estoppel of Hanz.

Until the termination of the agreement, Hanz never submitted a monthly bill based on the monthly minimum that it claimed was due. Instead, with each month there was a bill sent by Hanz to Crestline for the actual miles used in that month. It may have been that there were only a few months when the billing on the actual basis was really less than the contract minimum as viewed by Hanz. Nevertheless the bills actually sent out were inconsistent with the terms of the contract as now contended for by Hanz. For over five years Crestline continued as the truck lessee. It paid each bill as submitted. It terminated the contract on April 22, 1964, and as of June 16, 1964, Crestline received its first bill computed on the basis of guaranteed monthly requirements rather than on the basis previously billed. This whole course of conduct on the part of Crestline constitutes sufficient reliance on Hanz’s conduct, which redounded to the detriment of Crestline to such extent that it could validly assert estop-pel as against Hanz in this present attempt to collect rentals on the basis of a contract construction that was never reflected in its billings to Crestline.

I would hold, as a matter of law, that Hanz was estopped from asserting its claim and necessarily this would mean that the judgment below should be reversed and the plaintiff’s complaint dismissed.

I am authorized to state that Mr. Chief Justice Currie and Mr. Justice Fairchild join in this dissent.

       “. . . where the terms of a contract are plain and unambiguous, the duty of the court is to construe it as it stands, giving effect to the plain meaning of the language used, even though the parties may have placed a different construction on it. [Cases cited.]” State ex rel. Siciliano v. Johnson (1963), 21 Wis. (2d) 482, 487, 124 N. W. (2d) 624.

       Also see Milwaukee Cold Storage Co. v. York Corp. (1958), 3 Wis. (2d) 13, 25, 87 N. W. (2d) 505; and Cutler-Hammer, Inc., v. Industrial Comm. (1961), 13 Wis. (2d) 618, 625, 109 N. W. (2d) 468.

       (1965), 27 Wis. (2d) 53, 66, 133 N. W. (2d) 393.


author: Hallows, J.

text:
    Drivers, Warehouse & Dairy Employees Union, Local No. 75, Appellant, v. Wisconsin Employment Relations Board, Respondent.

      November 4

    December 3, 1965.

      For the appellant there was a brief by Goldberg, Previant & Uelmen of Milwaukee, and oral argument by David Leo Uelmen.

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

There is no dispute over the facts as found by the WERB. Menominee was engaged in refining sugar from sugar beets in its plant in Brown county and sold its sugar under the trade name of “Crystal Pure.” On July 1, 1960, it entered into a three-year collective-bargaining agreement with the petitioning union Drivers, Warehouse & Dairy Employees Union Local No. 75, International Brotherhood of Teamsters (union). This agreement covered all the part-time plant workers or “campaign workers” and provided for the usual seniority rights, wage, hours, working conditions, checkoff of dues, grievance procedure, arbitration and other matters. During the summer of 1961 machinery for the refining of cane sugar was installed and Menominee produced some cane sugar for about a month but was primarily engaged in refining sugar beets.

On December 31, 1961, Menominee discontinued operating the refinery, terminated all of its campaign employees, and sold a portion of its sugar-beet-refining equipment which was removed from the plant. As a result, the plant could no longer be used for refining beet sugar. The plant remained idle from January to July 7, 1962, except for a short time Menominee retained five or six shipping employees. On July 7, 1962, Menominee leased its plant, warehouse and equipment to Olavarria & Company of New York for a period of eighteen months. Olavarria & Company caused Wisconsin to be organized as a wholly owned subsidiary Wisconsin corporation for the purpose of processing cane sugar and assigned the lease to it. Under the terms of the lease the lessee agreed to pay rent on the basis of a fixed sum per bag of refined sugar and a guaranteed minimum rental and had the right to use the trade name “Crystal Pure.” The liabilities and the assets of Menominee were not assumed in the lease transaction and the lessee did not obligate itself to fulfil any orders or business of Menominee. There is no interest, control or ownership relationship between Menominee and Wisconsin and Olavarria.

About July 20th Wisconsin placed an advertisement in the Green Bay newspaper announcing employment was available and proceeded to hire campaign workers. The company obtained a list of names of Menominee’s campaign workers from a Mr. Charlier, a former timekeeper at Menominee who was hired by Wisconsin as its personnel manager. Wisconsin also hired another Menominee supervisory employee as its plant engineer. Of the 165 campaign workers hired, 60 were former employees of Menominee, but there is no evidence Wisconsin cont'acted such employees directly or other than through the public newspaper announcement.

Upon seeing the advertisement the petitioning union notified Wisconsin that it had a valid labor agreement with the union because Wisconsin was the successor and assign of Menominee and the union requested the recall of former employees according to their seniority. The denial by Wisconsin that it was the successor or assign of Menominee and it was bound in any way by the labor contract precipitated this controversy.

The complaint was originally filed on the theory the language of the contract relating to successor and assign was sufficient to bind Wisconsin to the contract. Normally under contract law such language would give a successor or assignee the benefits and subject it to the obligations of such contract only if it assumed the contract. Under one view of labor law, such language in a collective-bargaining contract made the issue of whether one was a successor or assign arbitrable under the contract. This view was taken by the dissenting member of the WERB. But after the decision of the WERB John Wiley & Sons v. Livingston (1964), 376 U. S. 543, 84 Sup. Ct. 909, 11 L. Ed. (2d) 898, held the determination of who was bound by a collective-bargaining contract was a question for the courts, not the arbitrator.

As stated by the union in its brief the question whether Olavarria and Wisconsin must arbitrate disputes arising under the collective agreement between the union and Menominee must be decided by federal law. Local 174, Teamsters Union v. Lucas Flour Co. (1962), 369 U. S. 95, 82 Sup. Ct. 571, 7 L. Ed. (2d) 593; Tecumseh Products Co. v. Wisconsin Employment Relations Board (1964), 23 Wis. (2d) 118, 126 N. W. (2d) 520. And as stated by the trial judge in his exhaustive opinion the “appropriate tribunal in this state to decide whether Wisconsin Sugar Company is the successor and assign of the agreement, whether it is now the employer party to that agreement and whether it is bound by the terms of such agreement, is the Wisconsin Employment Relations Board, in the same respects as that Board is the proper tribunal to determine if Wisconsin and Menominee (assuming they were parties to the agreement) have violated the agreement and are committing unfair labor practice.”

Since there is no dispute over the facts, the application of the “emerging federal common law” of collective-bargaining agreements is a question of law and the order of the WERB must be sustained on review if correct although based on other considerations. The Wiley Case is the only supreme court pronouncement on the issue presented in this case. Wiley involved a merger of Inter-science Publishers, Inc., which had a collective-bargaining agreement with a union involving about one half of its employees with John Wiley & Sons, a larger publishing company. As a result Interscience’s entity ended and its employees were taken over en masse by Wiley. Wiley refused to recognize the bargaining agreement as applicable to the employees formerly covered thereunder and claimed the merger terminated the bargaining agreement. The court rejected this argument and held Wiley & Sons had a duty to arbitrate under the contract because, aside from any effect of a merger under contract law, the merger did not automatically terminate all the rights of the employees and the duty to arbitrate would survive if there existed “a relevant similarity and continuity of operation across the change in ownership.” Such fact was found in the Wiley merger by the wholesale transfer of Interscience’s employees to the Wiley plant apparently without difficulty. This conclusion of when the duty to arbitrate survives a change in ownership of a business was grounded upon the important role which arbitration plays in effectuating the national labor policy and the importance of maintaining that policy of preventing industrial strife. To such an end, Wiley is an important addition to the federal common law on the subject of labor law.

We think Wiley stands for the principle that a collective-bargaining contract in reference to a particular plant or business survives a change in ownership of such business and binds the new owner and employer if there is a “relevant similarity and continuity of operation across the change in ownership,” and conversely, “We do not hold that in every case in which the ownership or corporate structure of an enterprise is changed the duty to arbitrate survives. As indicated above, there may be cases in which the lack of any substantial continuity of identity in the business enterprise before and after a change would make a duty to arbitrate something imposed from without, not reasonably to be found in the particular bargaining agreement and the acts of the parties involved.”

We agree with the union in its statement of the issue, “under applicable federal law, Olavarria and Wisconsin can only avoid arbitration of their disputes with the union if they are able to show that there is an absence ‘of any substantial continuity of identity in the business enterprise before and after’ the time Wisconsin became the employer of campaign workers at Menominee’s sugar refining plant.”

The union argues that a lack of any substantial continuity of identity in the business enterprise cannot be shown because Wisconsin, like Menominee, continued to hire campaign workers to refine “Crystal Pure” sugar cane at the Ashwaubenon plant where they performed the same work on the same, or same type of equipment. It is further argued that Wisconsin’s hiring other campaign workers in addition to hiring Menominee campaign workers is unimportant because the other workers were hired at the expense of other former Menominee employees. Likewise, there was no lack of continuity of employment because campaign workers are seasonal employees and finally, there is no significant difference in refining cane sugar rather than beet sugar. In addition to Wiley the union relies on United Steelworkers of America v. Reliance Universal, Inc. (3d Cir. 1964), 335 Fed. (2d) 891, and Wackenhut Corp. v. International Union United Plant Guard Workers (9th Cir. 1964), 332 Fed. (2d) 954.

In the Reliance Case, Martin Marietta which had entered into a collective-bargaining agreement with the union was ordered by the federal trade commission to divest itself completely of its Bridgeville plant. Martin Marietta sold the Bridgeville plant as a going concern to Reliance which assumed all the obligations of the business except for an express disclaimer of the obligations of any collective-bargaining agreement. In spite of this disclaimer the court held the duty to arbitrate survived the sale and Reliance was bound by the collective-bargaining contract as establishing the law of the shop and constituting the basic charter of its labor relations. Difficulties of adaptation which might arise because of changed circumstances were to be considered in the arbitration process of specific grievances as they arose under the agreement. The court correctly disregarded the disclaimer in applying Wiley because: (1) It was against federal public policy where a going concern was taken over, and (2) contract law was not the decisive factor in determining whether the duty to arbitrate survives the transfer of the ownership of the business.

In Wackenhut the General Plant Company entered into a labor contract and during its term sold substantially all its assets to Wackenhut which carried on the same business without interruption. This was primarily a service organization and the employees were taken over en masse. The court found a substantial similarity of operation and continuity of operation of the business identity before and after the change in ownership. We think these two cases properly applied Wiley to the sale of going businesses.

But Wiley does not compel Wisconsin to recognize the labor agreement entered into by Menominee because there is a lack of substantial continuity of identity in the business enterprise before and after the change. Wisconsin did not acquire a going business. There was no sale of any assets or liabilities of Menominee or a transfer in any respect of a business. Wisconsin did not obligate itself to fulfil any contracts or other business transactions of Menominee. Wisconsin started its business from scratch, leasing a plant which had been closed almost seven months. There was no continuity of operation across the change. We think it is of some significance that Wisconsin’s business was exclusively refining sugar from cane while Menominee’s principal business was refining sugar from beets. While the end product was sugar, the two processes are different and the production of sugar was not the same business operated successively by Menominee and Wisconsin, at least not from the standpoint of the customers, creditors, and the public.

While the form of a transfer is not controlling we must recognize a lease transfers nothing of the business as distinguished from a merger or a sale. If there had been a sale of the business enterprise the leasing of the plant and machinery would have significance in determining continuity. Contrariwise, the lease standing alone without a sale of the business is significant with other factors in indicating a lack of a substantial continuity of identity in the business enterprise. The union argues the same general business was continuously-conducted in the same plant from the standpoint of the campaign employees. While it is true the campaign workers are part-time employees there is no evidence the period from January to July is normally an unemployed period for campaign workers. In addition, we do not think Wiley holds that the continuity of the identity of the business enterprise is to be determined solely from the standpoint of employees. The answer to the problem does not rest on any one element but the combination of many. To hold the duty to arbitrate survived would be to make the “duty to arbitrate something imposed from without, not reasonably to be found in the particular bargaining agreement and the acts of the parties involved.”

By the Court. — Judgment affirmed.

       The petition for review of the WERB decision was filed June 13, 1963. While this petition was pending Wiley was decided on March 30, 1964. Thereafter on May 26th the matter was heard by the court and the Wiley Case was relied upon by the union as being applicable. On March 11, 1965, the court filed its decision based upon the Wiley Case. No request was made to the circuit court to have the matter sent back to the WERB for taking additional testimony and redetermination in view of the Wiley decision.


author: Gordon, J.

text:
    Schmit, Appellant, v. Sekach and others, Respondents.

      November 29, 1965

    January 4, 1966.

      For the appellant there was a brief and oral argument by Donald M. Gorectke of Milwaukee.
    For the respondents there was a brief by Kivett & Kasdorf, attorneys, and John M. Swietlik and Keith I. Johnston of counsel, all of Milwaukee, and oral argument by Mr. Swietlik.

   Gordon, J.

Negligence of Mr. Sekaeh as to Lookout.

The principal issue presented upon this appeal is the correctness of the plaintiff’s contention that Mr. Sekaeh was negligent as to lookout as a matter of law. It is urged that the jury’s negative answer to that question must be changed. In our opinion, this contention is not meritorious.

The appellant relies principally upon three prior decisions of this court to demonstrate that there was negligence as to lookout on the part of Mr. Sekach as a matter of law. The first of such cases is Bailey v. Zwirowski (1954), 268 Wis. 208, 67 N. W. (2d) 262, which the appellant denominates as an “unusually analogous factual situation.” We disagree with the latter premise and thus arrive at a conclusion contrary to that of the appellant.

In the Bailey Case, the plaintiff was traveling behind a bus which stopped at an intersection to discharge passengers, and then the bus turned to its right. Thereupon, the plaintiff proceeded forward into the intersection where a collision occurred with a car which had approached from the plaintiff’s right. It was held that the plaintiff was causally negligent as to lookout as a matter of law, the court observing, at page 210:

“It is undisputed that there was no stationary obstruction to plaintiff’s view to the east for a distance of about 1,000 feet. He testified that when the bus started forward he looked both ways and started up too. He saw nothing. He did not testify that he ever looked to his right again; he did testify that he never saw defendant’s car before the impact, . . .”

In our opinion, the foregoing quotation effectively confirms our view that the facts of the Bailey Case are significantly different from those of the case at bar. In the Bailey Case, the plaintiff had an adequate opportunity to observe the approaching vehicle; Mr. Sekach had no such opportunity.

The second case which the appellant contends is in support of her position is Oelke v. Earle (1956), 271 Wis. 479, 74 N. W. (2d) 336. There, the vision of the driver (one Maxfield) was obstructed by a newspaper shack when he was one third of a block away from the intersection. Maxfield proceeded into the intersection without making any further observations to his right until the time that he had arrived almost at the center of the intersection; Maxfield testified that he did not see the Earle car coming from the right until the moment of the collision.

Although it was the jury which found Maxfield negligent as to lookout, it was this court that ruled that his negligence was causal as a matter of law. At page 483 of the Oelke Case, we pointed out that if Maxfield’s opportunity to look to the right was obstructed when he was a third of a block away from the intersection, “then it was his duty to make a further observation to the east at a point which would have enabled him to take effective steps to avoid a collision.” The distinction between the OelJce Case and the case at bar rests upon the fact that the jury found that Maxfield was negligent as to lookout in not attempting to make any further observations to his right subsequent to his original observation.

The third case to which the appellant has alluded is Ashley v. American Automobile Ins. Co. (1963), 19 Wis. (2d) 17, 119 N. W. (2d) 359. In our opinion, the Ashley Case renders no support for the plaintiff’s contention because there was no obstruction to vision in that case. That was a case of a neglected opportunity to maintain a proper lookout, and the court ruled that a jury question was presented by the facts therein.

We believe that the appellant has misconstrued those cases in which this court has held that one who has a right-of-way is not excused from maintaining a proper lookout. Ashley v. American Automobile Ins. Co., supra; Reddick v. Reddick (1961), 15 Wis. (2d) 37, 112 N. W. (2d) 131; Puhl v. Milwaukee Automobile Ins. Co. (1959), 8 Wis. (2d) 343, 99 N. W. (2d) 163. We reaffirm the foregoing rule. However, when, as in the present case, a driver is unable, because of physical circumstances, to observe a vehicle which is about to invade his right-of-way, it may not be said that the failure to see such invading vehicle constitutes negligence as a matter of law. Our review of the record fails to yield sufficient evidence to show conclusively that Mr. Sekach could have or should have seen the Schmit vehicle before he actually did; the jury was entitled to conclude that he saw the Schmit vehicle at his first opportunity to do so, which was at a time when it was only 10 to 15 feet in front of him.

The Emergency Instruction.

The appellant contends that it was improper for the court to have given the emergency instruction because Mr. Sekach was negligent as to lookout as a matter of law. We have already rejected the latter contention. However, we believe that it was error to have given the emergency instruction for a different reason, which we will now examine.

The trial court did not submit a question relative to Mr. Sekach’s management and control. Although the appellant complains of such failure on this appeal, we believe that there was no issue as to management and control presented by the evidence. Mr. Sekaeh was driving a vehicle weighing approximately 38,000 pounds. As soon as he saw the Sehmit vehicle 10 to 15 feet ahead, he applied his brakes and did not have time to sound his horn. There were six inches of skid marks left as a result of such braking. We do not believe that Mr. Sekaeh could have managed or controlled his vehicle in any other manner so as to avoid the accident as he entered the intersection under the circumstances which prevailed.

The emergency instruction relates to the course taken by a driver who is suddenly confronted by an emergency which was- not contributed to by his own negligence. As usually given, the instruction states that one who is thus compelled to act instantly is not guilty of negligence if he makes a “choice of action or inaction as an ordinarily prudent person might make, if placed in the same position, even though it should afterwards appear not to have been the best or safest course.” See Wis J I — Civil, Part 1,1015.

The instruction is designed to relieve a driver who is confronted with an emergency from being labeled negligent in connection with his manner of driving, i. e., his management and control. The instruction relates to his “action or inaction” and his “best or safest course.” Thus, unless a driver’s management and control is being inquired into, there is no occasion for a trial court to give the emergency instruction. We regard the error as nonpre judicial.

The Instructions Regarding Comparison o f Negligence.

With reference to comparative negligence, the court submitted the following instruction to the jury:

“In your determination of this question, you will likewise take into consideration the finding made by this court as a matter of law with regard to the causal negligence of the impleaded defendant driver, Henry Sehmit, with regard to failing to yield the right of way to the truck driver.”

The appellant requested that the court give an additional instruction with respect to the comparison question which would caution the jury not to give greater or lesser importance to a finding made by the court than it would to a similar finding which was made by the jury. This related to the fact that the court had made a finding that Mr. Sehmit was causally negligent in failing to yield the right-of-way.

Since no negligence on the part of Mr. Sekach was found by the jury, there was no occasion for them to answer the question relating to comparison, and it would seem to follow that the appellant’s criticisms of the instructions in this regard are academic. However, the appellant urges that the errors attendant to the instructions tended to influence the jury in favor of Mr. Sekach. Less because of the latter contention and more because of our desire to resolve the specific issues, we address ourselves to the merits of these instructions and conclude that there was no prejudicial error. We find no flaw in the instruction (quoted immediately above) regarding the jury’s right to “take into consideration” a finding made by the court in connection with its comparison of the negligence.

The problem presented by the failure of the trial court to give an instruction which would caution the jury not to give special weight to a finding of negligence which had been made by the court was discussed in the case of Niedbalski v. Cuchna (1961), 13 Wis. (2d) 308, 313, 314, 108 N. W. (2d) 576. Although in that case there was no formal request for such an instruction, this court stated, at page 314:

“We decline, however, to adopt a rule based on a premise that a jury attributes disproportionate importance to negligence found by the judge in all, or a substantial number of the cases in which findings are made as a matter of law.”

If a trial court is concerned that a jury may give undue weight to a finding of negligence which has been made by the court because of the jurors’ respect for the court’s position or the judge’s experience (or for any other reason), it is appropriate that a cautionary instruction be given; the failure to give such a requested instruction would not rise to the dignity of being an error, let alone a prejudicial one.

Alleged Errors as to Admission of Evidence.

The appellant contends that there were two occasions during the trial on which improper evidence was admitted over her objection. One such event occurred when Dr. Kustermann was permitted to be cross-examined concerning a 1950 operation performed on the plaintiff for an intestinal disorder. The other error related to the admission of the hospital records concerning the same operation.

The' transcript shows that the plaintiff was asked during the trial whether she ever had any trouble with her stomach before the accident, and she responded in the negative. The respondents contend that they were entitled to impeach her testimony that she had never had stomach trouble prior to the 1962 accident by showing the 1950 intestinal operation and the hospital records which described such event. The hospital record of the 1950 operation reflected that she had “generalized abdominal pain.”

We believe that the cross-examination of the plaintiff which was permitted in this case was well within the discretion of the trial court. Nehls v. Nehls (1963), 21 Wis. (2d) 231, 238, 124 N. W. (2d) 18. The circumstances in the case at bar are unlike Knight v. Hasler (1964), 24 Wis. (2d) 128, 128 N. W. (2d) 407, where there was a total failure to attempt to connect the previous injuries with the injuries in the case that was then before the court. Mrs. Schmit opened the door by affirmatively asserting the absence of any prior abdominal difficulty, and, in addition, there is a physical proximity between the injured portion of the anatomy in the instant case and that involved in the past operation.

By the Court. — Judgment affirmed.


author: Wilkie, J. Per Curiam

text:
    Sheaffer, Respondent, v. Industrial Commission, Appellant.

      November 29, 1965

    January 4, 1966.

      For the appellant Industrial Commission the cause was argued by Roy G. Mita and Beatrice Lam/pert, assistant attorneys general, with whom on the briefs was Bronson C. La Follette, attorney general.
    For the respondent there was a brief by Honeck, Man-tyh & Arndt of Milwaukee, and oral argument by Stewart G. Honeck.

       Motion for rehearing denied, without costs, on March 1, 1966.

   Wilkie, J.

The appellant has conceded most of its case. In its brief the state concedes that since the 1964 change in operation instituted by Sheaffer as set forth in the second cause of action “guarantees to employees the minimum wage of $.95 an hour, it is not challenged by the commission as a violation of the minimum wage law.”

Thus, the sole issue remaining on this appeal is whether the facts as set forth in the first cause of action set forth a violation of the minimum-wage law.

The significant difference between the methods of operation under the two causes of action is that in the second there is an express guarantee that the worker will receive directly from the respondent the minimum wage of 95 cents per hour, whereas in the first there is an alleged agreement (but no express guarantee) between respondent and his workers that they are to retain tips as part of their compensation and that such sums, together with the hourly wages paid to them by respondent, exceed the minimum wage, then set at 85 cents an hour.

The general purpose of ch. 104, the Wisconsin Minimum Wage Law, is to assure, through adequate compensation, that minors and women enjoy “reasonable comfort, reasonable physical well-being, decency, and moral well-being.” Employers must pay minors at least a “living-wage.” The term “wage” is defined as “any compensation for labor measured by time, piece or otherwise” and “living-wage” means “compensation for labor paid, whether by time, piece-work or otherwise, sufficient to enable the employe ... to maintain himself or herself under conditions consistent with his or her welfare.” In general, the Industrial Commission is authorized to adopt “such rules interpreting the provisions of statutes enforced or administered by it as it considers to be necessary to effectuate the purpose of the statutes,” and in particular to promulgate orders “determining the living-wage” and “to carry out the purposes” of the minimum-wage law. However, any rules propounded “are not valid if they exceed the bounds of correct interpretation.” The Industrial Commission propounded rule 72.02 (B) in connection with administering the provisions of ch. 104.

Ch. 104, Stats., does not prohibit tipping. But who, the employer or the worker, is entitled to the tips? Although the general rule is that an agent must give his employer any profit earned by him in connection with his course of employment, there is an exception to this rule in the case of gratuities. Thus, the United States supreme court has said:

“In businesses where tipping is customary, the tips, in the absence of an explicit contrary understanding, belong to the recipient. [Citing cases.]”

The court went on to say:

“Where, however, an arrangement is made by which the employee agrees to turn over the tips to the employer, in the absence of statutory interference, no reason is perceived for its invalidity. The employer furnishes the facilities, supervises the work and may take the compensation paid by travelers for the service, whether paid as a fixed charge or as a tip.”

Thus, in Williams v. Jacksonville Terminal Co. it was held that tips were a part of the minimum wage within the meaning of the Fair Labor Standards Act when the employer guaranteed to pay the difference between this amount and the required wage. So appellant concedes that an employer could require his employees to either turn their tips over to him or to account for the tips so that they can be credited against the wages owed by the employer. This is why the state concedes compliance under the second cause of action.

But, by its demurrer it denies compliance under the first cause of action even admitting that the employer will be able to prove the existence of an agreement between him and his workers that they were to retain the tips as part of their compensation and that the tips, plus wages paid directly, always exceeded the minimum.

In Southern Ry. Co. v. Black another federal court considered whether or not tips received by redcaps in the Raleigh, North Carolina union station were to be included in determining compliance with the Fair Labor Standards Act. The court said:

“The fact that the tips are received from the passengers rather than from defendants is immaterial, for they constitute the very compensation which it was agreed between plaintiffs and defendants that plaintiffs should receive when they entered upon the service and a compensation which, while not paid by defendants, could not be received except as an incident to the service which defendants permit plaintiffs to render.”

In rejecting an assertion similar to that made by the appellant here, that Williams is not controlling because in Williams the employer expressly guaranteed to make up any difference, the court continued:

“This, however, is, we think, a distinction without a difference. The question there, as here, was whether tips received from passengers should be counted as wages received by the ‘red caps’ for their services, and the answer of the Supreme Court was in the affirmative, ... It is true that in that case there was a notice that the tips received should be kept by the ‘red caps’ and applied against the minimum wage; but here there was an agreement that the tips received should be kept by the ‘red caps’ in compensation of services. So far as the agreement to pay the difference between the tips and the minimum wage is concerned, that agreement added nothing to what the statute already required.”

We conclude that taking respondent’s allegations in his first cause of action as true (that there was an agreement and the amount received by the worker always exceeded the minimum), this informal practice accomplishes the same end as the formal procedure now employed by respondent as alleged in the second cause of action, which procedure appellant no longer challenges. In other words, both procedures, as alleged in the two separate causes of action, meet the requirements of the law and the disputed rule cannot be applied to the circumstances set forth in the complaint.

Thus, we are not required to pass on the validity of the rule excluding tips in other circumstances when there is no agreement between employer and employee that the tips are to be included in calculating the wage required by the minimum-wage law. While excluding tips is not in accord with the social security, Wisconsin income tax, federal income tax, and Wisconsin unemployment compensation provisions which include tips for purposes of determining wages, the purpose of the rule with respect to the minimum-wage law is entirely different. It is because without the rule it is impossible to assure that the employee is receiving the minimum wage if the employer is not required to pay a flat hourly wage. Although this may be true in some instances, in the present case it is established by the pleadings that there was an agreement between the employer and the employees that tips were to be kept as part of the wage and that the employees in fact were properly compensated. When the reason for the rule is satisfied, it should not be invoked. Appellant also maintains that since the tips did not appear on the records that the employer is required to maintain, the tips cannot be considered a part of the employees’ wages. However, respondent’s failure to rigidly comply with all of appellant’s rules is no reason, of itself, for ignoring the tips.

Appellant places great reliance on Padilla v. Henning Hotel Co. where the Wyoming supreme court interpreted an agreement whereby the employee received a monthly salary in addition to tips as meaning that the employer merely disclaimed any right to the tips and not that the tips were part of the wage. This case turned solely on the construction of the agreement in question. The court felt that since the agreement was entered into before the enactment of the minimum-wage statute, the parties could not have contemplated treating the tips as wages. Since the alleged agreement in the present case was reached well after ch. 104, Stats., went into effect, Padilla is not controlling.

By conceding that respondent’s procedure under the second cause of action meets the requirements of the law, appellant washes out its attempt to rely on California Drive-In Restaurant Asso. v. Clark as controlling the present situation. In that case, the California supreme court upheld an industrial welfare commission order which was quite similar to 72.02 (3), holding that the purpose of the minimum-wage law “may be thwarted if tips may be included in the minimum wage.” In greater detail the court spelled out its reasons for upholding the rule, even as against an agreement — such as in this case— that the employee was to consider tips as part of his wage. Thus:

“If the employees may be induced, and in effect coerced, by fear of dismissal by an employment contract requiring the tips to be counted as a part of the minimum wage, to report their tips as equal to the minimum wage even though they are not, the minimum wage requirement is seriously undermined. By indirect method they would be forced into a position of receiving less than the standard fixed. If the employer is permitted to retain the tips in an amount equal to the minimum wage, . . . the same condition would exist. The fear of dismissal might well coerce the employees to turn over as tips a portion of their own funds when the tips received were not equal to the legal wage. The effectiveness of the minimum wage law would be thus impaired. With the employer prevented from retaining tips in the amount of the minimum legal wage, a salutary result would follow. The benefits of the minimum wage law would be preserved, and the dignity of the laborer and his social position would be advanced by relieving him of the necessity of resorting to the undignified conduct encouraged by the tipping practice.”

However persuasive this analysis might be in support of the Wisconsin rule, by its concession the state admits that tips may be counted under a proper agreement. The California case is no longer in point.

By the Court. — Order overruling demurrer affirmed, and cause remanded for further proceedings.

The following memorandum was filed on March 1, 1966:

Per Curiam

(on motion for rehearing). In its rehearing brief the commission argues the only issue before this court was “whether the commission had statutory authority to adopt the rule in question, and, if so, whether the delegation of such authority would be constitutional.” It is also contended the application of the rule was not before this court. However, we considered the issue to be whether the rule was a reasonable interpretation of the statute as applied to the facts presented. The rule, which provided “Tips received from patrons of an employer cannot be counted as part of the wage in computing the rates prescribed in this order,” by its language is all-embracing and would apply to the fact situations alleged in the two causes of action in the complaint. The commission conceded on argument that the rule was not to be applied to the second cause of action which alleged a contract between the employer and the employee permitting the employee to retain the tips and guaranteeing that the amount paid by the employer plus the tips retained would equal the minimum rates. Thus in the fact situations set forth in the first and second causes of action alleged in the complaint, we held tips received from patrons could be counted as part of the wage in computing the minimum rates.

We thought our opinion was clear that the commission’s rule as to these two fact situations was invalid. We did not reach the question of whether the rule was valid as applied to situations in which no agreement existed between the employer and employee that the tips could count as part of the minimum wage and so stated. In this respect, we did not go as far as the circuit court did in declaring the rule invalid. We remanded the case to give an opportunity to the commission to plead over if it cared to, raising other fact situations for the purpose of a declaratory judgment. Our decision did not determine the pending case in Waukesha county. The facts of that case have not been proved. If they turn out to be as alleged in this case, our decision will apply.

In affirming the lower court we affirmed merely the procedural determination of overruling the demurrer and granting leave to plead over in a declaratory-judgment proceeding. Our affirmance does not affirm the declaration of rights declared by the trial court in its opinion because we have not so stated. Motion for rehearing denied.

       See. 104.01 (4), Stats.

       “104.02 Living-wage prescribed. Every wage paid or agreed to be paid by any employer to any woman or minor employe, except as otherwise provided in section 104.07, shall be not less than a living-wage.”

       Sec. 104.01 (3), Stats.

       Sec. 104.01 (5), Stats.

       Sec. 227.014 (2) (a), Stats.

       Sec. 104.04, Stats.

       Sec. 227.014 (2) (a), Stats.

       Seavey, Law of Agency (hornbook series), p. 244, sec. 148; 1 Meehem, Agency (2d ed.), p. 894, see. 1224; Restatement, 2 Agency (2d), p. 203, sec. 388.

       Restatement, 2 Agency (2d), p. 204, sec. 388, comment b; 1 Mechem, Agency (2d ed.), p. 902, sec. 1231.

        Williams v. Jacksonville Terminal Co. (1942), 315 U. S. 386, 397, 62 Sup. Ct. 659, 86 L. Ed. 914, rehearing denied, 315 U. S. 830, 62 Sup. Ct. 909, 86 L. Ed. 1224. See also 35 Am. Jur., Master and Servant, p. 501, sec. 70; 31 Am. Jur., Labor, p. 984, sec. 810.

        Williams v. Jacksonville Terminal Co., supra, footnote 12, at page 397.

       (4th Cir. 1942), 127 Fed. (2d) 280.

        Southern Ry. Co. v. Black, supra, footnote 14, at page 283.

        Southern Ry. Co. v. Black, supra, footnote 14, at page 284.

       20 C. F. R., sec. 404.1027 (k) (3).

       See 1 CCH State Tax Reporter (Wis.) par. 10-501.

        Roberts v. Commissioner of Internal Revenue (9th Cir. 1949), 176 Fed. (2d) 221.

       Sec. 108.02 (6), Stats.

       Sec. Ind 72.09, 3 Wis. Adm. Code.

       (1958), 78 Wyo. 144, 319 Pac. (2d) 874.

       (1943), 22 Cal. (2d) 287, 140 Pac. (2d) 657.

       Id. at page 299.

       Ibid.

       Ch. 104, Stats., and especially secs. 104.01 (3), (4), (5), 104,02 and 104.04.


author: Beilfuss, J.

text:
    Helmin, by Guardian ad litem, and another, Plaintiffs, v. Student Transportation Company, Inc., and another, Defendants and Appellants: Board of School Directors of Public Schools of City of Milwaukee, Impleaded Defendant and Respondent.

      November 29, 1965

    January 4, 1966.

      For the appellants there was a brief by Kivett & Kas-dorf, attorneys, and Nonaid J. Lewis of counsel, all of Milwaukee, and oral argument by Mr. Lewis.

    For the respondent there was a brief by John J. Fleming, city attorney, and Carl F. Kinnel and Harvey G. Odenbrett, assistant city attorneys, and oral argument by Mr. Kinnel.

   Beilfuss, J.

The single issue is, can the Board of School Directors of a city of the first class be made a party defendant (or impleaded defendant) in an action for personal injuries grounded upon negligence.

Ch. 38, Stats., sets forth the statutory structure for the public schools of the city of Milwaukee. The chapter applies only to cities of the first class, and consequently only to the city of Milwaukee.

Sec. 38.015, Stats., provides, in part:

“(1) The public schools in every city of the first class shall be under the management, control and supervision of a board of school directors, . . .”

It is apparent from a reading of the entire chapter that the school board is given considerable independence of action in establishing policy, operation, management, supervision, and control. It is further apparent that the school board is closely aligned and dependent upon the city for the funds necessary for the maintenance of the school system. The school funds are raised and disbursed by the city upon requests of the school board within the budgetary scheme set forth in the statute.

The confusion as to whether the city or the Board of School Directors is the party to be impleaded defendant in this action arises by virtue of two sections of ch. 38, Stats.

Sec. 38.06 (2), Stats., provides: “In any action or proceeding wherein the board is a party defendant service of any summons, writ, pleading or other papers served in commencing the action or proceeding . . .” should be made as provided in the section.

Sec. 38.11 (2), Stats., provides: “No action shall be maintained against any city upon any claim arising out of the operation, conduct and maintenance of the schools until it has been presented to the board and disallowed, in whole or in part. . . .”

Appellants contend that since sec. 38.06 (2), Stats., contemplates actions against the board, and since sec. 38.11 (2) does not specifically require suits on claims against the board to be brought against the city only, therefore the board is a proper defendant in this case.

Respondent argues that sec. 38.11 (2), Stats., and Brown Deer v. Milwaukee (1956), 274 Wis. 50, 79 N. W. (2d) 340, make it clear that the city and not the school board must be sued. In Brown Deer, at page 69, the court stated :

“While the board of school directors has a certain degree of independence, it is nevertheless tied closely to the city, since the city provides its money and owns the physical property of the school system (secs. 38.07 (4), 38.16 (1) and (2), Stats.). While sec. 38.06 (2) provides how service shall be made ‘in any action or proceeding wherein the board is a party defendant,’ sec. 38.11 (2) provides that suits on any claims arising out of the operation of the schools are to be brought against the city and not against the board.”

Appellants argue that the foregoing is obiter dieta,.

While sec. 38.11 (2), Stats., does not by express language require suit against the city to the exclusion of suit against the board, such is the fair implication of the statute. In sec. 38.11, the legislature has set out a claims procedure. In the absence of any other statutory claims procedure, the one set out must be used. Thus, where damage is claimed arising out of “operation, conduct and maintenance of the schools,” the legislature has required the injured party to make a claim against the board, which must be disallowed before suit against the city may be brought.

This is exactly what the court concluded in Brown Deer v. Milwaukee, supra, although that conclusion may not have been compelled by the facts in that case. In Brown Deer the court noted the administrative independence of the board and its financial dependence upon the city. This is further indicated by a portion of sec. 38.11 (1), Stats.: “All claims and demands against the city or board shall be audited and adjusted by the comptroller or other auditing officer of such city.”

The school board governs a geographical area coextensive with the city’s boundaries. This means that all claims arising out of the “operation, conduct and maintenance of the schools” will involve schools within the city of Milwaukee. This is ample justification for the legislature to require suit against the city. In smaller urban or in rural areas where several cities or municipalities may be within the same school district, suits against the cities would be unfair to taxpayers of those cities.

Sec. 40.31, Stats., provides:

“No action shall be maintained against a school district upon any claim until it has been presented to the board and disallowed, in whole or in part.”

When read with this companion section, sec. 38.11 (2), Stats., appears clearly to be a requirement that suit be brought against the city, not the school board.

If this be so, why does a provision for serving the board exist in the statutes? Simply, such a provision contemplates a myriad of suits grounded upon the administrative authority of the board.

State ex rel. Wasilewski v. Board of School Directors (1961), 14 Wis. (2d) 243, 111 N. W. (2d) 198, was an action by a teacher to review his discharge by the board. State ex rel. Schroeder v. Board of School Directors (1937), 225 Wis. 444, 274 N. W. 301, was a mandamus action for reinstatement of a teacher after discharge. State ex rel. Nyberg v. School Directors (1926), 190 Wis. 570, 209 N. W. 683, was a suit on the sufficiency of an answer to a writ of mandamus compelling the board to place the relator’s name on its list of permanent teachers. State ex rel. Thompson v. School Directors (1923), 179 Wis. 284, 191 N. W. 746, was an attack on the board’s regulations concerning promotion of married women teachers.

These are cases in which the board is a proper party. But in cases involving monetary claims the board is not the proper party. Sec. 38.11 (2), Stats., contemplates a claim to the board and suit against the city, if the claim is refused.

The appellants argue, in effect, that to require an action on a claim for money damages to be brought against the city rather than the school board is a distinction without a difference; that as a practical matter the school board and the city are interdependent with identical interests at stake, that the claim would be defended by the same public officers in the same manner, and that a judgment, if obtained, would be satisfied from the same fund. While this argument has a good deal of plausibility, we conclude that the legislature specifically intended that actions on claims for money damages arising out of the “operation, conduct and maintenance” of schools in cities of the first class must be brought against the city.

By the Court. — Order affirmed.

       In support of this argument the defendants cite Barry Laboratories, Inc., v. State Board of Pharmacy (1965), 26 Wis. (2d) 505, 132 N. W. (2d) 833.


author: Heffernan, J.

text:
    Pelikan, Appellant, v. Russell, Respondent: Downey Heating Company, Garnishee Defendant.

      November 29, 1965

    January 4, 1966.

      For the appellant there was a brief and oral argument by Carl F. Schetter of Milwaukee.
    For the respondent there was a brief and oral argument by Charles H. Galin of Milwaukee.

       Motion for rehearing denied, with costs, on March 1, 1966.

   Heffernan, J.

In the event the judgment for treble damages obtained in 1952 was for a willful and malicious injury, the debt is not dischargeable and the judgment will not be satisfied. The record of that treble-damages suit has been incorporated into the record before us and, in accordance with principles heretofore recognized by this court, we may look behind that judgment and consider the entire record on which the judgment is based. Bastian v. LeRoy (1963), 20 Wis. (2d) 470, 478, 122 N. W. (2d) 386. However, neither party may present evidence dehors that record. Bastian, supra, page 484; Tudryck v. Mutch (1948), 320 Mich. 86, 30 N. W. (2d) 512.

The defense of discharge in bankruptcy is an affirmative one, which the bankrupt as a defendant must allege and prove; however, once the fact of bankruptcy and discharge is shown, the party seeking to prove that the debt was of a nature that is excepted from the provisions of the act has the burden of proof. Bastian, supra, page 476; 9 Am. Jur. (2d), Bankruptcy, p. 610, sec. 815.

The plaintiff, Pelikan, in this case, therefore, has the burden of proving that Russell’s debt was a liability “for willful and malicious injuries to the person or property of another, . . .” Sec. 17a (2), Bankruptcy Act (11 USCA, sec. 35 (a) (2)).

Confining our review to the record in the treble-damages suit, it is clear that the plaintiff has not sustained his burden. The plaintiff in that action alleged that plaintiff sublet certain premises to the defendant, and that in May of 1947 the plaintiff gave notice terminating the defendant’s tenancy, but the defendant nevertheless willfully refused to yield up possession.

The circuit court in that action found that Russell “wilfully refused and neglected to surrender possession” of the premises and found that the plaintiff was damaged by such “unlawful and wilful refusal” to surrender the premises. Treble damages were awarded in the amount of $10,016.61 plus costs. Significantly, there was no allegation of malice. For a debt to be nondischargeable under sec. 17a (2) of the Bankruptcy Act, the elements of willfulness and malice must be present (8B C. J. S., Bankruptcy, p. 64, sec. 574a). Mere willfulness is not sufficient. The element of willfulness was specifically found by the trial judge, however.

“ ‘Malice’ is a concomitant of equal importance, due to the conjunctive use of ‘willful and malicious’ in the statute; and establishing that an act was intentionally done does not, necessarily or of itself, establish that it was done maliciously.” 8 Remington, Bankruptcy (6th ed.), p. 194, sec. 3328.

The defendant does not deny the intentional nature of his conduct, but he does deny “malice.”

The record in the action for treble damages is devoid of any evidence or finding that would support the plaintiff’s present claim of malice. We conclude that the record of that case does not sustain the plaintiff’s burden of proof. However, the plaintiff contends that the court’s finding that the conduct of the defendant in holding over was “willful and unlawful” carries with it the implication that the conduct was malicious. He would have us conclude as a matter of law that “maliciousness” and “unlawfulness” are synonymous. We are unable to do so.

“Unlawful” is defined to mean “contrary to or in violation of law; not in conformity with law.” Funk & Wag-nail’s New Standard Dictionary of the English Language (1941).

“ ‘Malice, in common acceptation, means ill will against a person, but in its legal sense it means a wrongful act, done intentionally, without just cause or excuse.’ ” Tinker v. Colwell (1904), 193 U. S. 473, 485, 24 Sup. Ct. 505, 48 L. Ed. 754, quoting from Bromage v. Prosser, 4 Barn. & Cres. 247.

Other courts use the “without just cause or excuse” test in discussing malice. See In re Drowne (D. C. R. I. 1954), 124 Fed. Supp. 842; Campbell v. Norgart (1944), 73 N. D. 297, 14 N. W. (2d) 260, 263; Petrillo v. Snelbaker (1941), 129 N. J. Eq. 437, 19 Atl. (2d) 683; In re Cote (1918), 93 Vt. 10, 106 Atl. 519, 521.

1 Collier, Bankruptcy (14th ed.), p. 1629, sec. 17.17, states:

“An injury to person or property may be a malicious injury within this provision if it was wrongful and without just cause or excuse, even in the absence of personal hatred, spite or ill will.”

8 Remington, Bankruptcy (6th ed.), p. 192, sec. 3328, states:

“There must be a wrongful act, intentionally done, without just cause or excuse, importing malice in the legal sense. But ill will or special malice toward the particular plaintiff need not appear.”

The above definitions of malice are consistent with Saueressig v. Jung (1944), 246 Wis. 82, 84, 16 N. W. (2d) 417, which held that:

“ ‘Wilful and malicious injury, . . . does not ... involve hatred or ill will as a state of mind, but arises from a wrongful act, done intentionally, without just cause or excuse.’ ”

See also 9 Am. Jur. (2d), Bankruptcy, p. 588, sec. 786, and 8B C. J. S., Bankruptcy, p. 63, sec. 574.

Through all these definitions runs the thread of something substantially more than “unlawfulness.” There must be evidence that the conduct was without just cause or excuse.

There is no requirement that a plaintiff show malice to recover in a treble-damages suit under sec. 291.10, Stats., nor has he done so in that case.

The plaintiff has, on the basis of that record, failed to sustain his burden of proof to show that the debt should be excepted from the discharge provisions of the Bankruptcy Act. Ordinarily, he would be concluded when the record in the action on which the judgment is based fails to show the required elements. However, in the instant case, the treble-damages action is of necessity based upon the earlier action by the plaintiff for unlawful detainer (secs. 291.01-291.09, Stats.), and that action is incorporated by reference in the treble-damages action. The record in the unlawful-detainer action and the documents incorporated therein furnish the background upon which the present controversy is- based. We do not deem it necessary for the purposes of this opinion to go into all the facts of this long and protracted litigation. This controversy has been before this court on two other occasions: Pelikan v. Spheeris (1948), 252 Wis. 562, 32 N. W. (2d) 220; Pelikan v. Russell (1955), 269 Wis. 364, 69 N. W. (2d) 567. Additional details may be found in those opinions. Suffice it to say, Pelikan leased certain tavern property from Michael and John Spheeris. He subleased it to Russell. At a later date, Spheeris refused to renew Pelikan’s lease, and Spheeris entered into a lease agreement directly with Russell. Pelikan commenced an action against Spheeris to compel Spheeris to specifically perform an option to renew the lease, and at about the same time commenced an action for unlawful detainer to cause Russell to surrender the premises to him. Russell defended his right to possession, relying on his lease with Spheeris, the owner. The lower court found for Spheeris in the specific-performance suit. The unlawful-detainer action was adjourned until the specific-performance suit was finally decided, for Pelikan's right to eject Russell was dependent upon his ability to force the renewal of the lease from Spheeris. On appeal, the lower court in the action for specific performance was reversed and this court held that Pelikan had the right to continue in possession of the property as the tenant of Spheeris. This enabled Pelikan to successfully seek his writ of restitution, the ejection of Russell, and eventually judgment in the suit for treble damages against him.

A perusal of the record of these cases — the original unlawful detainer in the civil court of Milwaukee county, the suit for specific performance of the lease agreement against Spheeris in the circuit court for Milwaukee county, and the subsequent appeal — reveals them to be devoid of any evidence of malice. They not only fail to show that essential element of the plaintiff’s proof, but also establish that the defendant, Russell, acted on the basis of “just cause and excuse.” The record of the unlawful-detainer action reveals that he held over under a claim of right by virtue of a lease from Spheeris, who was, in fact, the owner. Russell has alleged that he held possession because he thought he had a right to do so. That his position was arguably correct is evidenced by the circuit court’s decision. The invalidity of the lease from Spheeris to Russell was determined only after the mandate of this court. His conduct in retaining possession of the premises when he reasonably believed himself lawfully entitled to do so cannot be construed as malicious. His holding over was subsequently determined to be unlawful for he held possession under a lease that Spheeris was legally unable to grant. The instrument upon which Russell relied for possession proved to be a legal nullity, but the conduct of Russell was a far cry from what this court has previously denominated as willful and malicious conduct. In Thompson v. Sloan (1964), 24 Wis. (2d) 626, 630, 130 N. W. (2d) 256, we quoted with approval Tinker v. Colwell (1904), 193 U. S. 473, 487, 24 Sup. Ct. 505, 48 L. Ed. 754, which discussed what acts might be considered willful and malicious. The supreme court of the United States stated:

“ . a willful disregard of what one knows to be his duty, an act which is against good morals and wrongful in and of itself, and which necessarily causes injury and is done intentionally, may be said to be done willfully and maliciously, so as to come within the exception.’ ”

The plaintiff has failed to show that Russell’s conduct was of the nature described.

Since the liability has not been proved to arise out of “willful and malicious injuries,” the debt is dischargeable and the orders of the trial court are affirmed.

By the Court. — Orders affirmed.