author: Hallows, J. Currie, C. J. Gordon, J.

text:
    Wulf, Plaintiff, v. Rebbun and others, Defendants and Appellants: American Motors Corporation, Defendant and Respondent.

      October 26

    November 24, 1964.

      For the appellants there was a brief by Wickham, Bor-gelt, Skogstad & Powell of Milwaukee, for Rodger Rebbun and the United Services Automobile Association, and Bender, Trump, Davidson & Godfrey of Milwaukee, for Bernard Yenter and the Farmers Insurance Exchange, attorneys, and Thomas W. Godfrey and Donald R. Peterson, both of Milwaukee, of counsel, and oral argument by Mr. Peterson and Mr. Thomas W. Godfrey.

    For the respondent there was a brief by Gif fin, Simarski & Koch, attorneys, and Edward J. Simarski and Tames P. Brennan of counsel, all of Milwaukee, and oral argument by Mr. Edward J. Simarski and Mr. Brennan.

   Hallows, J.

The issue on this appeal is whether the cross complaints state a cause of action. Pleadings on demurrer are to be liberally construed with a view to substantial justice to the parties and are entitled to all reasonable inferences in favor of the pleading which can be drawn from the facts pleaded. Secs. 263.07, 263.27, Stats.; D’Angelo v. Cornell Paperboard Products Co. (1963), 19 Wis. (2d) 390, 120 N. W. (2d) 70; Arnold Joerns Co. v. Roberts (1962), 16 Wis. (2d) 333, 114 N. W. (2d) 416. The appellants correctly point out that in negligence actions pleadings are sufficient if they allege ultimate facts and that the acts were negligently performed. Colton v. Foulkes (1951), 259 Wis. 142, 47 N. W. (2d) 901; Weber v. Naas (1933), 212 Wis. 537, 250 N. W. 436. While the complaint must be liberally construed it must still state a cause of action and must fairly inform the opposite party of what he is called upon to meet by alleging specific acts. A pleading may fairly inform an opposite party what he is called upon to meet and yet not state a cause of action. However, as stated in Kagel v. Brugger (1963), 19 Wis. (2d) 1, 119 N. W. (2d) 394, the question on this demurrer is whether the complaint which fairly informs the defendant of what he is charged states facts which give rise to a duty of the defendant owing to the plaintiff as a matter of law.

Specifically, can an operator of a motor vehicle parked along a curb be negligent in signaling another motorist to proceed out of an alley in front of him and into the street? In sustaining the demurrers the trial court reasoned it was “fair to assume that the most the truck driver assumed to do is to guarantee passage before his own vehicle by virtue of the signaling” and it was “unreasonable to assume in this kind of situation . . . that the driver did any more than guarantee that the vehicle he was operating would not place the Yenter vehicle in jeopardy.” We think the trial court in error in making such assumptions from the pleadings. However reasonable such assumptions may appear, they are drawn against the effect of the allegations in the pleadings which should not be done on demurrer. Arnold Joerns Co. v. Roberts, supra.

We believe the reasonable inferences from the pleadings alleged an assumed duty owing to the plaintiff which the truck driver breached and the negligence was a substantial cause of the plaintiff’s injuries. Admittedly the driver of the American Motors truck had no duty to signal Yenter. In fact, since the truck was parked as distinguished from stopped along the curb, it could be inferred there would be no reason to signal Yenter he could proceed in front of the truck without hazard. Although one may have no duty to perform an act, if he attempts to do something to another even although gratuitously he must exercise reasonable care. Firkus v. Rombalski, ante, p. 352, 130 N. W. (2d) 835; Prosser, Law of Torts (3d ed.), ch. 10, p. 339, sec. 54, Affirmative Conduct; 38 Am. Jur., Negligence, p. 659, sec. 17. The oft-quoted rule was aptly and simply stated by Judge Cardozo in Glanzer v. Shepard (1922), 232 N. Y. 236, 239, 135 N. E. 275, 276, “. . . It is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all . . . .”

The appellants rely on Thelen v. Spilman (1957), 251 Minn. 89, 86 N. W. (2d) 700, wherein the plaintiff after driving behind the truck for about a mile on a two-lane highway was given a signal to pass by the driver of the truck. The driver had been driving with his lights on dim and apparently did not see a car approaching some 150 feet ahead. The plaintiff pulled out to pass the truck and collided with the oncoming car. On appeal the court affirmed the jury finding of negligence on the part of the truck driver, recognizing the principle of liability for the negligent performance of a voluntarily assumed duty. Significantly, when the signaling driver assumed the responsibility of informing the other driver by his signal that the road ahead was safe for travel, the signaling driver was in a better position to make that determination than the driver for whom the signal was meant.

In Devine v. Cook (1955), 3 Utah (2d) 134, 279 Pac. (2d) 1075, relied on by the respondent, a truck operated by one Hatch was proceeding on the inside or left lane of a four-lane highway. Plaintiff was following the truck in the right-hand lane. As the Hatch truck neared the intersection which was controlled by stop signs it slowed down and signaled to make a left-hand turn. Defendant Cook was waiting at the stop sign on the left when the driver of the Hatch truck signaled for her to proceed, which the defendant did. She passed in front of the truck and collided with the oncoming plaintiff's car. On appeal the court held Hatch was not negligent stating that all the signal amounted to was a manifestation on the part of the driver that as far as he was concerned the motorist could proceed, i.e., that he yielded the right-of-way. In this case the driver of the truck was in no position to see the traffic coming from his rear and to his right.

The pleadings in the instant case do not expressly allege the driver of the American Motors truck parked at the curb could or did look to his left and rear to see if traffic was coming before he signaled, nor do we know the size of the motor vehicle and how much it may have obstructed Yenter’s view of oncoming traffic to the south on North Holton street. However, it is alleged the employee of American Motors was negligent in signaling Yenter who was “proceeding out of the alley to proceed well-knowing that it was unsafe and dangerous in view of the conditions of the traffic then and there existing.” The inference is reasonable the truck driver looked and ascertained the traffic before signaling.

The ability to foresee future harm by the person signaling and the fact of such ascertainment lends meaning to the signal and to the reasonable interpretation of what the signal meant to the recipient. In Miller v. Watkins (Mo. 1962), 355 S. W. (2d) 1, 90 A. L. R. (2d) 1426, a school-bus driver slowing down at one of his regular stops signaled the driver of an oncoming truck preparing, to stop in response to the flashing red light of the school bus to come on through. When the oncoming truck was about to meet the bus a seven or eight-year-old child came running to the bus and ran into the side of the oncoming truck. The truck driver’s view of the approaching boy had been obstructed by a parked car and mailboxes. The court found the jury could reasonably find the school-bus driver was negligent in giving the signal considering the time, distance, surrounding physical facts, known habits and propensities of the child and should have known the boy would emerge momentarily from the house and might be expected to run across the highway toward the bus. See also Trinity Universal Ins. Co. v. Nicholson (La. App. 1958), 104 So. (2d) 244; Anno. 90 A. L. R. (2d) 1431, Duty and liability as to signaling driver approaching from opposite direction or on intersecting highway to pass or to proceed.

This principle is basically the same when applied to a motor-vehicle driver for motioning, waving, or signaling to a pedestrian to proceed across the street. In Sweet v. Ringwelski (1961), 362 Mich. 138, 106 N. W. (2d) 742, a ten-year-old girl stopped in the crosswalk in the center of a north-south street when she saw northbound vehicles approaching from her right. The defendant’s truck proceeding in the northbound lane nearest the center stopped in the crosswalk and the driver waved to the plaintiff to cross in front of him. She did so and after taking two or three steps beyond the truck was struck by another defendant’s automobile which was also traveling north in the lane immediately east of the truck. Negligence was claimed in the truck driver’s waving her on without having ascertained that she could proceed across the rest of the intersection in safety without danger from other approaching vehicles. The trial court, as in the instant case, said in effect the plaintiff was seeking to transpose an act of common courtesy into a tort and that the waving could be interpreted only as meaning a safe passage in front of his truck. On appeal the court said the trial court should not have determined as a matter of law the intended meaning of the truck driver’s waving action and what meaning might reasonably have been conveyed thereby to the ten-year-old girl. The question was one of fact for the jury. See Anno. 90 A. L. R. (2d) 1442, Liability of motor vehicle driver or his employer for motioning, waving, or beckoning to pedestrian to proceed across street, whereupon pedestrian is struck by another vehicle.

It may be true as stated by the trial court and argued by the respondent that the signal given by the American Motors’ driver cannot relieve Yenter of his duty to maintain a proper lookout and that his failure in this regard was the real cause of the accident. However, the question of the superseding cause or intervening cause is a question of law for the court after the facts have been determined. Ryan v. Cameron (1955), 270 Wis. 325, 71 N. W. (2d) 408; Merlino v. Mutual Service Casualty Ins. Co. (1964), 23 Wis. (2d) 571, 127 N. W. (2d) 741; and Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 55 N. W. (2d) 29.

We think the cross complaints liberally construed state a cause of action and the demurrers should have been overruled.

By the Court. — The judgments are reversed with directions to reinstate the cross complaints.

Currie, C. J.

(concurring). I concur in the result of reversal with some reluctance. The allegation that American Motors’ driver signaled Yenter to proceed out of the alley “well knowing that it was unsafe and dangerous” to so proceed coupled with the absence of an allegation that the truck driver was seated in the driver’s seat is sufficient to render the complaint nondemurrable. However, based upon statements of counsel made in oral argument, there is little doubt the evidence at trial will disclose that the truck driver was seated in the driver’s seat with his back to the Rebbun car approaching from the south. This being the situation, he would not be chargeable with knowledge of traffic approaching from his rear, and the case should be governed by Devine v. Cook (1955), 3 Utah (2d) 134, 279 Pac. (2d) 1075.

One in Yenter’s position, upon observing that the truck driver so has his back to traffic coming from the rear, would have no right to assume the latter’s signal to proceed had any reference to such traffic. It is wholly immaterial whether the truck is parked or merely temporarily stopped so long as the truck driver is seated in the driver’s seat. In either case the signal should only be subject to the reasonable interpretation that the truck is not going to proceed into the path of the car to which the signal is given.

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

Gordon, J.

(dissenting). I agree with the opinion of the trial judge, who stated:

“I think it unreasonable to assume in this kind of a situation as alleged specifically on the facts in this complaint, that the driver did any more than guarantee that the vehicle that he was operating would not place the Yenter vehicle in jeopardy.”

A complaint which alleges that a driver was negligent in signaling another operator to proceed should not be construed (even on demurrer) to represent the former’s warranty that other traffic will yield. Fairly interpreted, such a signal constitutes an invitation to proceed ahead of the one giving the signal; it is not a guarantee that the highway is free of all other potential dangers.


source: Caselaw Access Project

author: Gordon, J.

license: Public Domain

text:
    Jewell and wife, Respondents, v. United Fire & Casualty Company, Appellant.

      October 26

    November 24, 1964.

      For the appellant there was a brief by Allan & Storck of Mayville, and oral argument by Robert E. Storck.

    For the respondents there was a brief and oral argument by Dorothy Walker of Portage.
   Gordon, J.

“Names were made to matter,” said Thomas Reed Powell, 60 Harvard Law Review (1947), 501, 503.

This case revolves upon an incorrect name used in an insurance policy. The trial court found that there was a mutual mistake which required that the policy be reformed by changing the name of the insured from Gordon Jewell to Audrey Jewell.

The appellant has undertaken to establish that this determination on the part of the trial court was against the great weight and clear preponderance of the evidence. It contends that there was not clear and convincing evidence to warrant the reformation and that Mr. and Mrs. Jewell undertook a fraudulent scheme which should foreclose them from equitable relief.

The filling station was primarily owned and operated by Gordon Jewell. On the other hand, Audrey Jewell had a minor financial investment in the filling station and, therefore, an insurable interest under the policy.

The appellant urges that there was fraud in the manner in which the title to a 1959 Buick was transferred from the joint ownership of Gordon and Audrey Jewell to Audrey Jewell alone. An uncashed check passed from the insurance agent, Mr. Hillestad, to Mr. Jewell, and another passed from Mrs. Jewell to Mr. Hillestad; this is relied upon as demonstrating that both Gordon and Audrey Jewell were in league with Mr. Hillestad in accomplishing a collusive transfer.

In addition, the appellant points out that no protest was voiced concerning the name placed upon the policy at the time it was received; it was not until after an accident had occurred and it had become advantageous to have the coverage in the name of Mrs. Jewell that a demand for reformation was made.

The trial judge analyzed the factors mentioned above and explained why he declined to give them conclusive effect. There is persuasive evidence in the record to demonstrate that the transfer of the garage liability insurance from Fidelity to United was actually intended to continue the coverage in the name of Audrey Jewell. It is undisputed that Mr. Hillestad is the one who initiated the transfer of the insurance from the one company to the other; he was terminating his agency relationship with Fidelity, and it was he who proposed that the policies be reissued by United. The respondents sought no apparent gain by changing companies; they did so only to accommodate their insurance agent, Mr. Hillestad.

There is nothing in the record to suggest that in changing companies the respondents intended to change the coverage. Indeed, the evidence is forcefully to the contrary. At the time that the transfer between the two companies was made, there were in existence riders to each of the Fidelity policies which had changed the name of the assured from Gordon Jewell to Audrey Jewell. When discussions were held between Mr. Hillestad and Mr. Helms, the former specifically informed the latter that the ownership of the automobiles was in Mrs. Jewell’s name. This fact was never disputed by the appellant; no contrary evidence was introduced, even though it appears that Mr. Helms was in attendance at the trial.

While there is some dispute on the point, it would appear that when Mr. Hillestad sent the so-called “dailies” to United he included the riders which showed that the policies were in the name of Audrey Jewell. Exhibit 13, which was taken from the underwriting file at the home office of United, includes the written name of Audrey Jewell; the record contains no explanation as to how her name could have found its way into the appellant’s file unless it had in fact appeared in the riders which accompanied the “dailies.”

The trial court found that it was intended that the United policy be the same as the previous coverage and, therefore, that Mrs. Jewell was to continue as the named insured. This result is irresistible from Mr. Hillestad’s uncontradicted testimony. In addition, Mr. Fattig, representing United’s home office, also made it clear that he intended to issue the policy identically with the “dailies.” Thus, we believe that the trial court was correct in concluding that there was a mutual mistake of fact which justified the reformation of the insurance contract.

The fact that Gordon Jewell was the owner and operator of the filling station and also the fact that he had transferred the title to the automobiles do not bar reformation of the policy. The appellant has referred us to Noorthoek v. Automobile Ins. Co. (1940), 292 Mich. 561, 291 N. W. 6. In that case, reformation was denied because the title to the automobile was changed so that advantage could be taken of lower insurance rates; in the instant case, the change in title was not designed to gain any advantage from the appellant insurer.

A court will not reform a document to abet a fraudulent scheme. Moore v. Michaelson (1913), 152 Wis. 352, 358, 140 N. W. 28. However, the previous title transfer between Gordon and Audrey Jewell falls far short of being fraud with regard to the policy in issue, even if it could be found to constitute a violation of sec. 341.60, Stats. “Fraud is infinite in variety,” said Lord MacNaughten; “sometimes it is audacious and unblushing; sometimes it pays a sort of homage to virtue, and then it is modest and retiring; it would be honesty itself if it could only afford it.” Reddaway v. Banham [1896], A. C. 199, 221. It is one thing to be aware or suspicious of the many forms which fraud can take; it is another thing to find it proved.

“Fraud generally lights a candle for justice to get a look at it,” goes the saying. Because it was a colorable transaction, the trial judge carefully considered the 1961 title transfer in his memorandum decision. We have also scrutinized the matter closely and support the conclusion reached by Judge O’Connoe.

The alleged scheme of Mr. and Mrs. Jewell took place in 1961, long before the appellant issued the policy in question in May, 1962. In Huntzicker v. Crocker (1908), 135 Wis. 38, 41, 115 N. W. 340, this court stated:

“Equity does not demand that its suitors shall have led blameless and pure lives. If it did, the chancellor’s court would be little frequented. The general principle simply is that he who has been guilty of substantial misconduct ‘in regard to, or at all events connected with, the matter in litigation, so that it has in some measure affected the equitable relations subsisting between the two parties and arising out of the transaction,’ shall not be afforded relief when he comes into court as an actor seeking to set the judicial machinery in motion.”

The fact that the agent, as well as Mr. Jewell, accepted the policy as it was written by United does not defeat this action for reformation. In Jeske v. General Accident Fire & Life Assur. Corp. (1957), 1 Wis. (2d) 70, 92, 83 N. W. (2d) 167, this court said:

“We are thus constrained to hold that Jeske’s failure to have read or to have known the terms of his policy cannot defeat his action for reformation of the policy.”

This interpretation related to a technical clause in the policy, and it would seem to be less applicable when the error to be reformed is as obvious as the name of the insured. Nevertheless, we do not regard the failure to observe the identity of the named insured to be fatal as a matter of law in an action for reformation. See also Early v. Public Fire Ins. Co. (1931), 203 Wis. 338, 344, 234 N. W. 361; Journal Co. v. General Accident Fire & Life Assur. Corp. (1925), 188 Wis. 140, 149, 205 N. W. 800; Collum v. National Fire Ins. Co. (1923), 181 Wis. 425, 427, 195 N. W. 333. But see Parsons, Rich & Co. v. Lane (1906), 97 Minn. 98, 106 N. W. 485, 4 L. R. A., p. 231, Note 5.

In the case at bar, there was the clear and convincing proof required to reform a written instrument on the ground of mutual mistake. Estate of Flierl (1937), 225 Wis. 493, 499, 274 N. W. 422; Evans v. Evans (1921), 173 Wis. 141, 179 N. W. 755. Less proof is required to establish mutual mistake in connection with an insurance contract than is needed as to other written instruments. Jeske v. General Accident Fire & Life Assur. Corp. (1957), 1 Wis. (2d) 70, 79, 83 N. W. (2d) 167; Center Street Fuel Co. v. Hanover Fire Ins. Co. (1956), 272 Wis. 370, 373, 75 N. W. (2d) 462.

In Pouwels v. Cheese Makers Mut. Casualty Co. (1949), 255 Wis. 101, 106, 37 N. W. (2d) 869, this court stated as follows:

“It is well established that when clear and satisfactory evidence demonstrates that through inadvertence, accident, or mistake the terms of a contract of insurance are not fully or correctly set forth in the policy, it may be reformed in equity so as to express the actual contract intended by the parties. See 29 Am. Jur., Insurance, p. 237, sec. 241; Wisconsin Auto Racing Asso. v. Home Ins. Co. (1934), 216 Wis. 321, 257 N. W. 7; Fountain v. Importers & Exporters Ins. Co. (1934), 214 Wis. 556, 252 N. W. 569; Schmidt v. Prudential Ins. Co. (1940), 235 Wis. 503, 292 N. W. 447.”

By the Court. — -Judgment affirmed.


author: Wilkie, J.

text:
    Kablitz, Respondent, v. Hoeft and another, Appellants.

      October 26

    November 24, 1964.

      For the appellants there were briefs by Lowry, Hunter & Tikalsky and oral argument by James L. Steimel, all of Waukesha.
    For the respondent there was á brief by Hippenmeyer & Reilly of Waukesha, and oral argument by William F. Reilly.

   Wilkie, J.

Four issues are raised on this appeal:

1. Did the court err in allowing an orthopedic surgeon engaged by the defendant insurance company to be called as an adverse witness by the plaintiff ?

2. Did the court err in failing, as requested by the defendants, to instruct the jury that no damages could be awarded for plaintiff’s osteomyelitis ?

3. Were the damages awarded to plaintiff supported by the evidence ?

4. Should a new trial be granted in the interest of justice?

Calling Defendants’ Doctor Adversely.

At the request of defendants’ counsel, Dr. Alfred Kritter, an orthopedic surgeon, examined Kablitz, sent his report to those attorneys, and was then paid by Farmers Mutual. The trial court deemed him an agent of Farmers Mutual under sec. 325.14, Stats., and permitted respondent to call him adversely. This was error.

In holding that Dr. Kritter was an agent of the defendant insurance company the trial court stated:

“The term agent in general designates those employments where the persons exercising them are not under the immediate control of a superior. A person authorized by another to act on his account and under his control is an agent. An attorney under many circumstances may be the agent of his client. The independent contractor and agent are distinguished by the right of control the employer exercises. The employer here exercises exactly what type examination he desires, to whom copies shall be sent, the right to determine whether the doctor shall be called as a witness, and the right to engage or not engage the doctor again. The company has, of course, no right to determine the final conclusion of the doctor. A doctor who generally examines patients for an insurance company is, in the opinion of the Court, an agent of such company.”

It is well established that the most-important factor in determining whether a person is an agent is the extent of the control retained over the details of the work. There was no proof here that Farmers Mutual reserved any right to control the details of the examination or exerted any influence over such examination. There is nothing in the record to indicate that Dr. Kritter was regularly engaged by Farmers Mutual to examine claimants. Thus, with respect to this examination Dr. Kritter was pursuing a distinct occupation or business (the practice of an orthopedic surgeon) apart from that of the person who engages the services (insurance of liability growing out of automobile accidents). He kept his own office and furnished his own instrumentalities of the examination. He was an independent contractor and not an agent of the insurance company.

Respondent contends that unless he is able to call appellants’ doctor adversely under sec. 325.14, Stats., the only way he will be able to learn the results of the examination is to call the doctor on direct and take the chances that go with making him his own witness. Respondent overlooks the fact that a discovery examination may be conducted of the doctor (even though not an agent) prior to trial under sec. 326.12, and that the defendant may be compelled to supply the plaintiff with a copy of the doctor’s report under the provisions of sec. 269.57.

Sec. 326.12, Stats., before the 1961 amendment, allowed the adverse examination before trial only of a party or of a person standing in certain specified relationships to a party, e.g., an agent of a party. Sec. 325.14, was not changed at the same time and there is nothing to show that the legislature intended any change in the statute that required a person to be in one of the designated relationships to an adverse party, e.g., an agent, before he could be called adversely at the trial.

Sec. 326.12, Stats., as amended in 1961, was changed to conform with the federal rule on discovery before trial. The federal rule corresponding to sec. 325.14, provides:

“A party may call an adverse party or an officer, director, or managing agent of a public or private corporation or of a partnership or association which is an adverse party, and interrogate him by leading questions and contradict and impeach him in all respects as if he had been called by the adverse party, and the witness thus called may be contradicted and impeached by or on behalf of the adverse party also, and may be cross-examined by the adverse party only upon the subject matter of his examination in chief.”

This rule permits the adverse examination on trial of an agent only if he is a special type of agent, i.e., a managing agent, as defined by the rule.

Even though the court erred in finding Kritter an agent and in permitting him to be called adversely, such error, to warrant reversal must have been prejudicial to Farmers Mutual. His testimony, which would be held against the defendant, concerned only the nature and extent of a knee injury, a matter not in dispute. Appellants were in no way prejudiced by any error committed in allowing Dr. Kritter to be called adversely.

Instruction as to Plaintiffs Osteomyelitis.

Appellants requested the court to instruct the jury that no damages could be awarded for respondent’s osteomyelitis because there was no evidence that this condition was affected in any manner by the collision. This request was denied and the jury was instructed that no damages could be awarded for this pre-existing condition unless it was “brought into activity as a natural result of the injuries received in the collision.”

The osteomyelitis condition involving his right upper thighbone was originally caused by a gunshot wound received in 1935. Kablitz was hospitalized for about eight months at the time of the accident, and only worked part time from 1936 until 1940. The condition reoccurred in 1940 and Kablitz was once more hospitalized, this time for over half a year. In 1946 or 1947 the wound again began to drain but he was not hospitalized. The condition then remained dormant until two or three days after the accident, when Kablitz experienced symptoms and about three or four days later, the condition reoccurred. Dr. Raschbacher, the physician who attended respondent, testified that it was his opinion “to a reasonable medical certainty that the fact that Mr. Kablitz was in this accident . . . was a cause of the flare up.” He testified on cross-examination that if the symptoms arose three or four days after the accident, and the drainage started three or four days after that, he “could not state to a reasonable medical certainty” that the accident reactivated the condition. Appellants contend that this testimony negates the opinion given on direct examination. His testimony is not inconsistent because the opinion elicited on cross-examination is based on assumption rather than fact. Kablitz testified that the symptoms occurred two or three days after the collision, not three or four.

Appellants’ witness, Dr. Kritter, testified that “the overall course of osteomyelitis [would not] have been appreciably affected by any injuries received.” Pie then testified, however, that “an injury such as this, if there was a good [preexisting] pocket of pus, would accelerate the drainage.”

In Leusink v. O’Donnell the court said:

“It is apparent from the record that the plaintiff, prior to the accident, had some disability in his left arm and left leg, resulting from some form of sclerosis. The medical reports in the record indicate that the plaintiff was suffering from a partial paralysis of the left arm and left leg after the accident. Plaintiff’s disability, both before and after the accident, affected the same parts of his person and the same bodily functions. Therefore the extent to which his disabilities are attributable to the accident will be a question for the jury.”

The expert testimony boils down to one flat assertion that the collision reactivated the osteomyelitis and one opinion that the accident would have aggravated the condition only if drainage was about to occur anyway. Considering these opinions, in light of the respondent’s testimony that the condition was completely dormant for fourteen years prior to the collision, arising again only shortly after the crash, there was sufficient evidence of causal relationship to necessitate the instruction given.

Damages.

Appellants submit that the evidence does not support the damage awards of $6,950 for past and future wage loss, and $3,000 for past and future pain and suffering, and disability. The amount of damages awarded is a matter resting largely in the discretion of the jury. The verdict will not be upset merely because the award was large or because the reviewing court would have awarded a lesser amount, but rather only where it is so excessive as to indicate that it resulted from passion, prejudice, or corruption, or a disregard of the evidence or applicable rules of law. Evidence must be viewed in the light most favorable to the verdict. A damage verdict which has been approved by the trial court will not be disturbed if “there exists a reasonable basis for the trial court’s determination after resolving any direct conflicts in the testimony in favor of plaintiff.”

The test for damages resulting from loss of wages is what the plaintiff’s services might be worth to him in his ordinary employment. Kablitz is a portrait salesman. In 1961, during the nine months prior to the accident, his earnings averaged $402 per month. Projecting these earnings for the entire year of the accident and comparing the total with his actual income discloses an $800 loss, which he is clearly entitled to.

In 1959 and 1960, when he made between 50 and 60 house calls a week, his total earnings were $5,889 and $6,084 respectively. In 1962 and 1963, when he could only make between 20 and 35 calls, his total income was $4,948 and $4,724 (eleven months) respectively. Thus Kablitz, who had a life expectancy of twenty-three years at the time of the trial, earned approximately $1,000 less in each of the two years subsequent to the accident than he did the two years before it.

Appellants, however, ignore the 1959 — 1960 income and argue that since Kablitz’s average monthly earnings for the nine months preceding the accident are substantially the same as his present earnings, there was no loss. We disagree. A period of nine months is not fairly representative of his past average income and precludes the possibility of increased portrait sales due to the Christmas season, which would raise his overall earnings average. Even if his 1959, 1960, and 1961 incomes are averaged and compared with his present income, he would still lose between $400 and $500 a year. Considering his life expectancy, this loss alone would sustain the verdict.

The damages awarded for loss of wages can be sustained even if the osteomyelitis condition was not reaggravated by the collision. The testimony shows that this condition caused no permanent disability. The knee injury prevented him from climbing stairs and forced a reduction in the number of stops he could make in a week.

Appellants also take issue with the award of $3,000 for past and future pain and suffering, and disability. Both doctors agree that Kablitz suffered a permanent degenerative injury (chondromalacia) to his right knee. Dr. Rasch-bacher estimated a permanent disability. There were also injuries to his other knee, right hand, and nose. These injuries continued to pain him at the time of the trial. The injury to the right knee made it difficult to climb stairs. He did not regain normal use of his hand until a year and a half after the accident. He experienced headaches three or four times a week up to the time of the trial and had severe back pains for six or eight months after the collision. In addition, he suffered the usual temporary pains and bruises. He had to sleep in a separate bedroom because the pain made him restless. Before the accident he participated in athletics, fishing, hunting, and bowling, but his activity now is restricted to dart ball. The only dispute in regard to the nature or extent of the injuries is whether the osteomyelitis was caused by the accident. Even assuming that the osteomyeli-tis was not reactivated by the collision, Kablitz’s other injuries were of sufficient severity to sustain an award of $3,000.

Considering all the evidence, it cannot be said that the jury verdict in regard to wage loss or pain and suffering was unjustified.

New Trial in the Interest of Justice.

The power of this court to grant a new trial in the interest of justice, pursuant to sec. 251.09, Stats., is to be exercised only sparingly and with great caution. Viewing the case as a whole, there has not been a miscarriage of justice.

By the Court. — Judgment affirmed.

       "325.14 Adverse examination at trial; deposition as evidence; rebuttal. (1) Any party or any person for whose immediate benefit any civil action or proceeding is prosecuted or defended, or his or its assignor, officer, agent or employe, or the person who was such officer, agent or employe at the time of the occurrence of the facts made the subject of the examination, may be examined upon the trial as if under cross-examination, at the instance of any adverse party.”

        Bond v. Harrel (1961), 13 Wis. (2d) 369, 108 N. W. (2d) 552.

        Boehck Construction Equipment Corp. v. Voigt (1962), 17 Wis. (2d) 62, 115 N. W. (2d) 627, 117 N. W. (2d) 372.

        Bond v. Harrel, supra, footnote 2. The court enumerated factors that point to the status of an independent contractor: “. . . the place of work, the time of employment, the method of payment, the right of summary discharge of employees, the nature of the business or occupation, which party furnishes the instrumentalities or tools, and the intent of the parties to the contract.” (p. 374.)

       Sec. 326.12, Stats.; ch. 113, Laws of 1961.

       Sec. 326.12 (1), Stats. 1959.

       28 USCA, p. 286, Federal Rules Civil Procedure, Rule 26.

       28 USCA, p. 271, Federal Rules Civil Procedure, Rule 43 (b).

        Shine v. Hagemeister Realty Co. (1919), 169 Wis. 343, 172 N. W. 750.

       (1949), 255 Wis. 627, 631, 39 N. W. (2d) 675, 677.

        Olson v. Siordia (1964), ante, p. 274, 130 N. W. (2d) 827; Makowski v. Ehlenbach (1960), 11 Wis. (2d) 38, 103 N. W. (2d) 907.

        Kincannon v. National Indemnity Co. (1958), 5 Wis. (2d) 231, 92 N. W. (2d) 884.

        Boodry v. Byrne (1964), 22 Wis. (2d) 585, 589, 126 N. W. (2d) 503, 505.

        Kowalke v. Farmers Mut. Automobile Ins. Co. (1958), 3 Wis. (2d) 389, 88 N. W. (2d) 747.

        Springen v. Ager Plumbing & Heating, Inc. (1963), 19 Wis. (2d) 487, 120 N. W. (2d) 692.

        Graff v. Roop (1959), 7 Wis. (2d) 603, 97 N. W. (2d) 393.

        Mack Trucks, Inc., v. Sunde (1963), 19 Wis. (2d) 129, 119 N. W. (2d) 321.


author: Beilfuss, J.

text:
    Estate of Roth: Roth, Respondent, v. Filipek, Appellant.

      October 27

    November 24, 1964.

      For the appellant there was a brief by Harwood H. Stoats of Cudahy, attorney, and Suel 0. Arnold and Arnold, Mur

      ray & O’Neill of counsel, all of Milwaukee, and oral argument by Suel 0. Arnold.

    For the respondent there was a brief by Kurt Schnell-baecher and Bernard F. Mathiowets, both of Milwaukee, and oral argument by Mr. Mathiowets.

   Beilfuss, J.

On this appeal we have concluded that the proceeds of the bank account are the property of Mr. Roth, and that the cash found in the safe-deposit box is an asset of Mrs. Roth’s estate.

The Bank Account.

The contract theory of joint bank accounts, adopted by this court in Estate of Staver (1935), 218 Wis. 114, 260 N. W. 655, relies on the contract of deposit rather than delivery of evidence of the chose in action for the perfection of the joint interests of donee and donor depositors. “The instrument in legal contemplation vests ownership in a chose in action according to its terms. The joint interest is perfected by the initial delivery, and no further transfer is required by the depositor.” Estate of Staver, supra, page 120.

In-the Staver Case doubt was expressed whether the circumstances surrounding the creation of a joint bank account could be used to prove lack of donative intent, and thereby rebut the presumption that a joint interest was created in the promisees. In Estate of Hounsell (1948), 252 Wis. 138, 31 N. W. (2d) 203, it was pointed out that a donor-depositor claiming that no joint interest was created was in effect seeking to reform evidences of title.

Later cases have departed from Staver and Hounsell to the extent that the intention of the donor-depositor to create a joint tenancy in the chose in action controls a joint bank account case. The form of the bank account is not determinative, but must be considered with the surrounding facts and circumstances in order to ascertain the intent of the donor-depositor. The contract raises a rebuttable presumption that the usual rights incident to jointly owned property were intended to vest in the donee-depositor. This presumption can be overcome by clear and convincing evidence. Estate of Kemmerer (1962), 16 Wis. (2d) 480, 114 N. W. (2d) 803; Estate of Pfeifer (1957), 1 Wis. (2d) 609, 85 N. W. (2d) 370; Zander v. Holly (1957), 1 Wis. (2d) 300, 84 N. W. (2d) 87; Estate of Schley (1955), 271 Wis. 74, 72 N. W. (2d) 767; Kelberger v. First Federal Savings & Loan Asso. (1955), 270 Wis. 434, 71 N. W. (2d) 257; Plainse v. Engle (1952, 1953), 262 Wis. 506, 56 N. W. (2d) 89, 57 N. W. (2d) 586.

The contract-signature card which presumptively created the joint account between Mr. and Mrs. Roth provided: “The money now and hereafter deposited is owned as joint tenants by the persons named, . . .” Mr. Roth testified he signed this card without knowing what it was. The trial court found that Mr. Roth never intended to make a gift of his earnings to his wife. From our review of the record, although a close question, we cannot say this finding is against the great weight and clear preponderance of the evidence. The finding must stand. We consider erroneous the trial court’s conclusion that Mr. Roth was the owner of the bank account by right of survivorship of the joint tenancy between himself and his wife.

As to the three-named account, the same rule must apply. The trial court found that Mr. Roth did not intend to make a gift to his wife and that he did not intend to create a joint interest in Mr. Filipek. Even under the testimony most favorable to Mr. Filipek — the statement attributed to Mrs. Roth that Filipek “should share in something if anything happens to us” would not create a present interest in Filipek. For the same reason as stated above, the presumption of joint tenancy has been overcome by the finding of the trial court and Mr. Filipek has no claim to the bank account.

The Cash in the Safe-Deposit Box.

Mr. Roth testified that his wife placed the money in the safe-deposit box. Although his testimony is not clear on this point, apparently he did not enter the box while his wife was living. Mrs. Roth gave Mr. Filipek a power of attorney over the box which, of course, terminated on his notice of her death. Sec. 243.06, Stats.

The trial court found that the cash belonged to Mr. Roth “for the same reasons as stated regarding the bank account.” In Anno. 14 A. L. R. (2d) 948, 954, it is said:

“In a clear majority of jurisdictions where the point has arisen, deposit of articles in a jointly leased or used safe-deposit box of itself works no change in title unless there is an express agreement that the contents of the box shall be joint property.”

See also Anno. 101 A. L. R. 832 and Anno. 113 A. L. R. 573, 575.

Here the contract leasing the safe-deposit box is not in evidence. Therefore, there is no basis on which it can be said that a joint tenancy was created in the money found in the safe-deposit box. The problem is determining who owned the cash when it was placed therein.

The trial court found that the source of all the assets in this case was Mr. Roth’s earnings. As appellant Filipek points out, this finding was based on a faulty recollection of the record. Mr. Roth himself testified that his wife realized about $1,200 from the sale of some real estate in 1950 or 1951. With the exception of $1,350 in United States savings bonds in joint names, the contents of the box other than the cash were the individual property of Mrs. Roth. We consider this persuasive evidence that the money belonged to Mrs. Roth. It is unlikely that she would commingle her own funds with those of her husband in the bank accounts.

We conclude that the $1,480 cash in the safe-deposit box is an asset of Mrs. Roth’s estate.

Mr. Filipek was adopted by other persons prior to the marriage of Mr. and Mrs. Roth. Under sec. 48.92, Stats., his rights as next of kin to his natural mother have been terminated notwithstanding the fact that prior to 1955 he was her next of kin under sec. 322.07, Stats. 1953. Estate of Hood (1931), 206 Wis. 227, 239 N. W. 448. The document purporting to be Mrs. Roth’s will has not been admitted to probate. If it is, Mr. Filipek stands to inherit the money. If not, Mr. Roth does.

By the Court. — Judgment reversed, and cause remanded for proceedings consistent with the opinion. No costs to be taxed on this appeal.

       See Estate of Budney (1957), 2 Wis. (2d) 389, 86 N. W. (2d) 416.


author: Heffernan, J.

text:
    Carr, Appellant, v. Industrial Commission and others, Respondents.

      October 27

    November 24, 1964.

      For the appellant there was a brief by Glassner, Clancy & Glassner of Milwaukee, and oral argument by William E. Glassner, Jr.

    For the respondent Industrial Commission the cause was argued by Roy G. Mita, assistant attorney general, with whom on the brief was George Thompson, attorney general.
    For the other respondents there was a brief by Moore & Moore, and oral argument by Frank Crivello, all of Milwaukee.

       Motion for rehearing denied, without costs, on February 2, 1965.

   Heffernan, J.

The question is whether there is credible evidence which, if unexplained, would support the finding of the Industrial Commission in a workmen’s compensation case. Shawley v. Industrial Comm. (1962), 16 Wis. (2d) 535, 114 N. W. (2d) 872; Wagner v. Industrial Comm. (1956), 273 Wis. 553, 565, 79 N. W. (2d) 264, 80 N. W. (2d) 456; Indianhead Truck Lines v. Industrial Comm. (1962), 17 Wis. (2d) 562, 565, 117 N. W. (2d) 679. See also Seymour v. Industrial Comm., ante, p. 482, 131 N. W. (2d) 323.

Upon the record of this case, we must affirm. The testimony of Dr. Smith that in his opinion Carr did not have the bends is the evidence upon which the Industrial Commission could rely. Although Carr made out a prima facie case based upon the conclusion of his personal physician, Dr. Becker, that he had caisson disease, this diagnosis was disputed at the hearing by Dr. Smith. It is not our function to resolve or weigh conflicting medical evidence. That function is solely within the province of the Industrial Commission. Unruh v. Industrial Comm. (1959), 8 Wis. (2d) 394, 399, 99 N. W. (2d) 182:

“The weight and credibility to be given medical witnesses in a workmen’s compensation case are for the Industrial Commission. The rule as stated in Milwaukee E. R. & T. Co. v. Industrial Comm. (1951), 258 Wis. 466, 475, 46 N. W. (2d) 198, is: ‘It is a well-established rule that the commission’s finding on disputed medical testimony is conclusive. A. D. Thomson & Co. v. Industrial Comm. (1928), 194 Wis. 600, 602, 217 N. W. 327; General A. F. & L. Assur. Corp. v. Industrial Comm. (1937), 223 Wis. 635, 641, 271 N. W. 385; Crucible Steel Casting Co. v. Industrial Comm., supra [(1936), 220 Wis. 665, 265 N. W. 665] (p. 669).’ See also Borden Co. v. Industrial Comm., supra; Borum v. Industrial Comm. (1959), 6 Wis. (2d) 168, 93 N. W. (2d) 860.”

This is true even though this court might have ruled differently had it been in the position of the Industrial Commission.

The Industrial Commission must choose between any conflicting testimony. Deciding these issues of fact is the peculiar office of the Industrial Commission. Unruh v. Industrial Comm., supra.

The Industrial Commission on all disputed facts chose on the basis of credible evidence to resolve those facts against Carr. We agree with the trial court that the findings of the Industrial Commission must be sustained.

By the Court. — Judgment affirmed.


author: Currie, C. J.

text:
    Pavalon, Plaintiff and Respondent, v. Thomas Holmes Corporation, Defendant and Appellant: Fishman, Defendant: Golkin & Bomback, Inc., Defendant.

      October 27

    November 24, 1964.

      For the appellant there was a brief and oral argument by James F. Stern of Milwaukee.

      For the respondent there was a brief by Godfrey & Kahn, attorneys, and David M. Hecht of counsel, all of Milwaukee, and oral argument by Mr. Hecht.

   Currie, C. J.

We consider that the instant appeal presents four issues:

(1) Can the claimed lack of jurisdiction over the person of appellant Sulray be raised by demurrer, and, if not, what is the proper procedure for raising and disposing of such question of personal jurisdiction ?

(2) Did the circuit court have jurisdiction over the subject matter of the causes of action attempted to be pleaded in the complaint ?

(3) Does the pleaded first cause of action set forth sufficient facts to constitute a cause of action ?

(4) Is that part of the order appealable which granted leave to plaintiff to plead over his second cause of action?

Personal Jurisdiction.

Appellant contends its demurrer to the first cause of action should have been sustained on the ground of lack of personal jurisdiction. It is appellant’s position that since allegations of the complaint are insufficient to show the necessary minimal contacts between appellant and Wisconsin the circuit court did not obtain personal jurisdiction over appellant by service of the summons and complaint upon it outside of the state.

There are two fatal defects to appellant’s position. First, there is no requirement that a complaint must state the facts necessary to give the court personal jurisdiction over the defendant if service of the summons is made upon defendant otherwise than by personal service within the state. We recognize that this holding may at first blush seem inconsistent with our opinion in Flambeau Plastics Corp. v. King Bee Mfg. Co. (1964), 24 Wis. (2d) 459, 129 N. W. (2d) 237, where we looked to allegations of the complaint to determine an issue of personal jurisdiction. We are now satisfied, however, that a court cannot base a determination of lack of personal jurisdiction over a defendant upon a mere failure of the complaint to allege facts necessary to establish personal jurisdiction.

Secondly, demurrer on the ground of lack of personal jurisdiction over appellant will not lie under the facts of this case. This is because the face of the complaint does not show whether service was had upon appellant within or without the state. It is necessary to look to the affidavit of service to ascertain this fact. Demurrer can only be used to raise the issue of lack of personal jurisdiction “when the defect appears on the face of the complaint.” Sec. 262.16 (2) (b), Stats. Without giving due consideration to this statutory provision, we wrongly assumed in the Flambeau Plastics Corp. Case; State ex rel. Sonneborn v. Sylvester, ante, p. 177, 130 N. W. (2d) 569; and in Travelers Ins. Co. v. George McArthur & Sons, ante, p. 197, 130 N. W. (2d) 852; that a demurrer would lie to test lack of personal jurisdiction under the facts of those cases. The last-cited case, however, did not raise the point here decided because the facts with respect to jurisdiction were stipulated. Thus it was wholly immaterial that the issue had originally been raised by demurrer.

It is extremely difficult to visualize a situation in actual practice when a lack of personal jurisdiction will ever appear from the face of the complaint. There are two reasons for this: The complaint does not ordinarily disclose how the summons was served; there is always a possibility that the objecting defendant may have had contacts in Wisconsin not alleged in the complaint which would authorize service of the summons to have taken place outside the state.

Inasmuch as demurrer will not here lie to raise the issue of lack of personal jurisdiction we turn to subparagraphs (a) and (c) of sec. 262.16 (2), Stats., in an attempt to find out how appellant should have proceeded. These sub-paragraphs provide:

“(a) By motion when a defect is claimed in the service of the summons without a complaint; or when the defect appears upon the face of the record other than the complaint ; or in case of a judgment on cognovit or by default;
“(c) By answer in all other cases.”

If only the above-quoted statutory provisions are considered it would appear that appellant would be required to have raised this issue by answer. However, defendant deemed it advisable to demur to the complaint also because of its failure to state facts sufficient to constitute a cause of action. An answer must follow disposition of the demurrer. If appellant were to wait until after disposition of the demurrer to raise the defense of lack of personal jurisdiction by answer, it would have waived its right to do so since a demurrer on the ground of failure to state a cause of action constitutes a general appearance. Coffee v. Chippewa Falls (1874), 36 Wis. 121, 125; 2 Callaghan’s Wisconsin Pleading and Practice (3d ed.), p. 231, sec. 16.04. See also Brooks v. Northey (1880), 48 Wis. 455, 457, 4 N. W. 589. However, the history of sec. 262.16 (2) Stats., convinces us that it was never intended that a defendant be denied the right to interpose a general demurrer to the sufficiency of the complaint when he desired also to raise the issue of lack of personal jurisdiction.

Prior to this court’s action, in exercising its rule-making power to create sub. (2) of sec. 262.17, Stats., effective September 1, 1956, a defendant who joined any defense or motion, which standing alone would constitute a general appearance with an objection to lack of personal jurisdiction, was deemed to have waived the latter objection. The injustice resulting from such rule was highlighted by Ozaukee Finance Co. v. Cedarburg Lime Co. (1954), 268 Wis. 20, 66 N. W. (2d) 686. The wording of sec. 262.17 (2) as so promulgated was identical with that of present sec. 262.16 (2). See 271 Wis. vii. The action of this court in creating this rule of practice was upon the recommendation of the judicial council. See 30 W. S. A., p. 294, Interpretative Commentary to sec. 262.17. The key provision was the first sentence which reads:

“An objection to the court’s jurisdiction over the person is not waived because it is joined with other defenses or motions which, without such objection to jurisdiction, would constitute a general appearance.”

In order to carry out the underlying intent of this provision so as to permit one in appellant’s position to attack the personal jurisdiction of the court and also demur to the sufficiency of the complaint, we hold that the jurisdiction issue may be raised by motion served with the demurrer. Such motion should be supported by an accompanying affidavit setting forth all material facts relied upon by movant to show the court’s lack of personal jurisdiction. Where such a procedure is followed it is then the duty of the trial court under sub. (3) of sec. 262.16, Stats., to try the jurisdictional issue first before passing on the demurrer which raises an issue on the merits. We deem it advisable to point out that at such trial of the jurisdictional issue the allegations of a verified complaint are not to be considered as evidence tending to establish jurisdiction except for the limited purpose of determining the type of action.

In the instant case we determine that there was no waiver of appellant’s objection to jurisdiction by it demurring to the sufficiency of the complaint even though it could not raise the jurisdictional objection by demurrer. At least appellant did raise its objection to jurisdiction simultaneously with its attack upon the sufficiency of the complaint. Therefore, the cause will be remanded so as to afford appellant a reasonable opportunity to renew its objection to jurisdiction in the manner herein prescribed.

Jurisdiction of the Subject Matter.

On the remand appellant is not to be afforded any opportunity to again raise the issue of lack of jurisdiction over the subject matter of the action. This is because there is no merit to appellant’s contentions with respect to this issue. Appellant has confused lack of jurisdiction of subject matter with lack of jurisdiction over the person. If service of the summons and complaint had been made on appellant by legally serving its president in Wisconsin there is no question but that the circuit court would have had jurisdiction of the subject matter of the action.

Sufficiency of First Cause of Action.

If the defendant brokers in inducing and making the sale to plaintiff acted only on their own behalf and not as agents of appellant, the complaint spells out no cause of action against appellant. An allegation, therefore, that defendant brokers so acted as agents of appellant, or some other allegation which under the federal Securities Act would establish appellant’s liability, is crucial to the first cause of action stating a cause of action against appellant. The complaint, however, contains no positive allegation that defendant brokers did so act as agents of appellant. The allegations with respect to agency are all phrased in the alternative and allege that defendant brokers acted either as agents or as principals. Under the authorities, allegations in the alternative are fatally defective. Anderson v. Minneapolis St. P. & S. S. M. R. Co. (1908), 103 Minn. 224, 114 N. W. 1123; 41 Am. Jur., Pleading, p. 317, sec. 41. The first cause of action of the complaint, therefore, fails to state a cause of action and it was error not to sustain the demurrer thereto.

Appealability of Portion of Order Allowing Plaintiff to Plead Over.

We refuse to pass on this phase of the appeal because we lack jurisdiction so to do. An order, or portion thereof, which sustains a demurrer and grants the right to plead over is nonappealable by the successful demurring party. Travelers Ins. Co. v. Fidelity & Casualty Co. (1964), 24 Wis. (2d) 38, 41, 128 N. W. (2d) 71.

By the Court. — That part of the order which overruled appellant’s demurrer to the first cause of action is reversed and cause remanded for further proceedings consistent with this opinion. Appellant is granted twenty days from the return of the record from this court to the circuit court in which to interpose a motion objecting to the jurisdiction of the court over the person of appellant. The appeal from that portion of the order which granted plaintiff the right to plead over is dismissed.

       Ch. 262 was repealed and re-created by ch. 226, Laws of 1959, and represented an extensive revision drafted by the judicial council and was largely the work of Professor G. W. Foster, Jr., of the faculty of the University of Wisconsin Law School who acted as reporter for the council. Under this revision former sec. 262.17 was renumbered sec. 262.16 and additional new subsections were added.


author: Hallows, J.

text:
    King, Plaintiff, v. King, Defendant. [Two appeals.]

      October 27

    November 24, 1964.

      For the plaintiff there were briefs by Edward D. Cleveland, attorney, and Whyte, Hirschboeck, Minahan, Harding & Harland of counsel, all of Milwaukee, and oral argument by Mr. Cleveland.

    For the defendant there was a brief and oral argument by John Wm. Calhoun of Fond du Lac.
   Hallows, J.

Since custody of the children was granted upon the stipulation of the parties without testimony being taken on the issue and no finding of fitness was made, the court’s determination is not res judicata nor does the rule of changed circumstances apply. If the doctrine of res judicata applied in full force in custody cases, evidence of conduct occurring prior to the time of the determination of custody would be excluded on a later hearing. However, the doctrine does not apply unless there has been a finding of fitness. Lewis v. Lewis (1948), 252 Wis. 576, 32 N. W. (2d) 227. Even when such a finding has been made, the doctrine of res judicata is not to be applied to custody matters with strictness because the rights of the child and of the public in the child’s welfare should not be concluded by the nonaction of others. Zillmer v. Zillmer (1960), 8 Wis. (2d) 657, 100 N. W. (2d) 564, 101 N. W. (2d) 703; Bliffert v. Bliffert (1961), 14 Wis. (2d) 316, 111 N. W. (2d) 188; Miller v. Miller (1962), 15 Wis. (2d) 583, 113 N. W. (2d) 403.

The doctrine, of course, has no application in the sense the determination of custody or of fitness or unfitness is final for all time. The continued custody of a child of divorced parents may always be considered by the court under sec. 247.25, Stats., which provides the court may from time to time upon the petition of either party revise and alter the judgment concerning the care, custody, maintenance, and education of any of the children as the circumstances of the parents and the benefit of the children shall require.

Because of this continuing jurisdiction in the court, the doctrine of changed circumstances developed judicially as a rule of expediency to discourage the repetitious litigation of a custody issue. 17A Am. Jur., Divorce and Separation, p. 30, sec. 838. It is based on the proposition the court, once having fully considered and determined the issue of custody on the circumstances then existing, ought not again consider it until there was such a substantial or material change in the circumstances of the parents or of the child as would require or justify in the interest of the child a modification of the previous determination. Thus custody is not changed on a rehearing of the same facts. This rule of giving a determination the effect of res judicata also applies to a determination of support money and alimony. Miner v. Miner (1960), 10 Wis. (2d) 438, 103 N. W. (2d) 4; Chandler v. Chandler, post, p. 587, 131 N. W. (2d) 336, decided this day. In the instant case the interest of the children required a full hearing which was not had at the time of the divorce apparently because of the reliance upon the stipulation. Relevant and important facts which might previously have been brought to the attention of the court by the parties were properly considered by the court.

The plaintiff contends the findings of the trial court are erroneous in several respects. The trial court found the plaintiff understood the stipulation granting custody to the defendant. The plaintiff’s position, however, is that she was induced to sign the stipulation upon the understanding its effect as to custody would only be temporary because at that time she had no place to live and to take care of the children, and when she found a suitable place to live the judgment would be changed giving her custody. The trial court did not believe her and we cannot say the court was in error. But assuming the facts to be as the plaintiff understood them, such an agreement is subject to approval of the court. While parents may stipulate as to custody, the agreement should not be approved by the court unless it insures and promotes the best interest of the children. We do not approve of a trial court’s granting custody on a stipulation without taking testimony calculated to ascertain what is best for the children or otherwise inquiring into the best interest of the children. A contract between the parents contemplating a divorce should be given serious consideration by the court as it normally expresses what may be best for the child; nevertheless it does not bind the court or preclude a modification of a decree based thereon. Nelson, Divorce and Annulment (2d ed., 1961 rev.), p. 268, ch. 15.21; Miner v. Miner, supra. Since a child of a broken home has rights which should be protected, the controlling question is not what the parties agreed to but what is in the best interest of the child.

The plaintiff contends that because the defendant is away from home a great deal because of his business the delegation of parental care to grandparents, baby-sitters and housekeepers results in depriving the children of that emotional security essential to their healthy development. A psychiatrist testified for the plaintiff that the younger child was distressed and disturbed and that the child loved to stay close to his mother. The gist of this argument is that all things being equal and the mother not being unfit, small children should be with their mother. Undoubtedly this rule is laid down in Jenkins v. Jenkins (1921), 173 Wis. 592, 181 N. W. 826, and Acheson v. Acheson (1940), 235 Wis. 610, 294 N. W. 6. While it is true, maternal custody is generally considered to be in the best interest of young children, it is not an absolute rule but an important factor to be considered. Greenlee v. Greenlee (1964), 23 Wis. (2d) 669, 127 N. W. (2d) 737; Bohn v. Bohn (1962), 16 Wis. (2d) 258, 114 N. W. (2d) 423.

A specific finding of unfitness to have custody is not required as a prerequisite to an order denying custody. Dodge v. Dodge (1955), 268 Wis. 441, 67 N. W. (2d) 878. The trial court while not finding the plaintiff unfit did find the best interest of the children was served by having the custody in the defendant-father. In making this finding the court considered the defendant was well qualified and capable of making a satisfactory home for the children and had been doing so since the date of the divorce. The court considered the plaintiff emotionally immature, extravagant, and as evincing at least prior to the divorce no great concern over the care of the children. These conclusions are attacked by the plaintiff as not being sustained by the evidence. While the evidence is not very strong, we cannot say they were not at least reasonable inferences which the trial court might draw.

Running through defendant’s brief and the trial court’s opinion are allusions to the conduct of the plaintiff with a Mr. Ralph and it is intimated he was responsible for the divorce and the reason for the plaintiff’s going to Washington. Whatever the facts are they are not very evident in the record and the plaintiff ought not to be penalized by the deprivation of custody on that score. Conduct of a party as a basis for divorce is important on the custody issue only as it relates to fitness of such person to have custody of the children. In the plaintiff’s favor it is no doubt true she now has an acceptable apartment in Shorewood in which to rear the children. She states she can care for the children and also earn sufficient credits in education at the University of Wisconsin in Milwaukee to supplement her Master’s degree so she may be able to teach and support herself. However, the trial court’s finding is to the effect that at the present time it is in the best interest of the children that they remain in the custody of their father. As we said in Peterson v. Peterson (1961), 13 Wis. (2d) 26, 108 N. W. (2d) 126, “No hard and fast formula has yet been devised for determining what factors will ultimately assure the future welfare of a child.” In a close case such as this an appellate court ought not reverse the findings of a trial court unless it is completely satisfied the trial court has clearly abused its discretion and decided the matter against the great weight and clear preponderance of the evidence. Hamachek v. Hamachek (1955), 270 Wis. 194, 70 N. W. (2d) 595; Bliffert v. Bliffert, supra. Such is not this case. Other arguments of the plaintiff have been considered but need no comment.

The defendant argues that visitation of the plaintiff should be limited to an extended visit during the summer. The trial court did not agree. We think it would have been proper for an extended summer visit to have been provided in addition to the present biweekly visits. Nothing in the testimony indicates the plaintiff should not have such privilege or it would not have been in the best interest of the children. Our affirmance of the present order should not preclude the court upon application of the plaintiff from modifying this order with respect to summer visitation.

The defendant argues on his appeal the allowance for the plaintiff’s attorney’s fees, costs and expenses ordered by the trial court was erroneous because the plaintiff was financially able to pay these costs. The cases relied on are not in point; they hold in effect it is not an abuse of discretion for the trial court to deny counsel fees to a divorced wife who has remarried, in the absence of a showing her second husband was unable, to pay for them. When a man marries a divorcee he assumes the cost of her future litigation. The plaintiff has not remarried and the court found her to be in debt. The awarding the attorney’s fees and expenses in a custody matter is in the discretion of the court under sec. 247.23, Stats., and the power is based on the court’s continuing jurisdiction to modify the decree under sec. 247.25. We find no abuse of discretion on the part of the trial court in requiring the attorney fees and expenses of the plaintiff to be paid by the defendant.

By the Court. — Orders affirmed.

        Elies v. Elies (1941), 239 Wis. 60, 300 N. W. 493; Hansen v. Hansen (1947), 251 Wis. 574, 30 N. W. (2d) 227; Greenlee v. Greenlee (1964), 23 Wis. (2d) 669, 127 N. W. (2d) 737.


author: Gordon, J. Per Curiam

text:
    Dahlke (Wayne D.), Plaintiff and Appellant, v. Dahlke (Walter G.) and others, Defendants and Respondents: Adams-Marquette Electric Co-operative, Inc., Impleaded Defendant and Respondent.

      October 27

    November 24, 1964.

      For the appellant there was a brief by Rogers & Owens of Portage, and oral argument by Harlan B. Rogers.

    For the respondents there was a brief by Wheeler, Van Sickle, Day & Goodman of Madison, for the Adams-Marquette Electric Co-operative, Inc., and Callahan & Arnold of Columbus, for Walter G. Dahlke, Harvey M. Dahlke, Irene I. Elliott, and the Westfield Milling & Electric Light Company, and oral argument by Floyd E. Wheeler and Carroll B. Callahan.

       Motion for rehearing denied, without costs, on February 2, 1965.

   Gordon, J.

There are two basic grounds upon which we conclude that the trial court’s analysis was correct. First, the history of both the distribution and the retention of the company’s stock is more logically consistent with the respondents’ position. Secondly, we are unable to locate proof of any donative intent to support the alleged gift.

History of Shareholdings.

At the beginning of this report, we have recited in some detail the historical aspects of the corporate shares starting in 1917. It is our conclusion that a study of such transfers and corresponding retentions of shares demonstrates that Gustav Dahlke did not make a gift of 42 shares to his son, Wayne. If the claimed gift of 42 shares to Wayne is ignored, the other shares transferred to the children on March 28, 1921, total 77 shares; this is the same number which the father, Gustav Dahlke, surrendered on that occasion. Any attempt to arrive at the same total of 77 shares by a process which would include Wayne’s 42 shares proves to be tortured and unrealistic.

In 1928, at the time preferred stock was to be issued, Gustav Dahlke cancelled 50 shares of his then 200 shares in order to comply with the regulatory direction concerning a reduced number of outstanding shares. In 1941, Gustav Dahlke gave 10 shares to each of his six children, and this diminution of 60 shares left him with 90 shares, which latter figure is clearly reflected in the minutes of the corporation. It is this number of shares which he owned at the time of his death. All of the foregoing, in our opinion, is reasonably consistent with the trial court’s finding that the alleged certificate to Wayne Dahlke for 42 shares was not intended to be issued.

In addition, the reports made to the public service commission and the nonpayment of dividends to Wayne on such claimed shares further suggest the want of a completed gift to the appellant.

Absence of Donative Intent.

“I would sooner trust the smallest slip of paper for truth, than the strongest and most retentive memory ever bestowed on mortal man.” Miller v. Cotten (1848), 5 Ga. 341, 349.

The whereabouts of the certificate for the 42 shares claimed by the appellant is not known. There is no proof of an actual delivery of the certificate to Wayne Dahlke. The individuals who are parties to the instant lawsuit were teenagers or in their early twenties when the questioned stock transfer occurred in the 1920’s. Understandably, their recollection of such events four decades ago is far from precise.

One fact is forcefully demonstrated by the record: Gustav Dahlke was absolutely in charge of the affairs of the corporation. He was also fully in control of the corporate records, including the stock certificate book. These facts tend to minimize the importance of the entry found on the stub of the stock record book that certain shares were issued to Wayne Dahlke. The appearance of such an entry in the record book does not reflect proof that the necessary dona-tive intent existed. Having complete mastery of the company and its records, Gustav Dahlke could have directed that a certificate be prepared without actually intending to consummate any gift. He could have completed the gift, if he chose to do so, but, on the other hand, he was equally free to tear up the certificate. It cannot be presumed that a gift was completed merely because a certificate was prepared in Wayne Dahlke’s name.

If delivery had been made, there would have been a completed gift; in the absence of delivery, there was, at most, a contemplated gift. In this respect, the case at bar is comparable to the problem presented in Estate of Heller (1933), 210 Wis. 474, 246 N. W. 683, and is different from the circumstances in Zander v. Holly (1957), 1 Wis. (2d) 300, 84 N. W. (2d) 87. In the latter case, this court said, at page 316:

“. . . there is a complete gift of corporate stock where the certificate has been transferred at the direction of the owner to the donee on the books of the corporation and a new certificate issued in the name of the donee or where a certificate is issued in the first instance in the name of the donee although the certificate so issued is retained by the donor and not delivered to the donee. These decisions obviate proof of delivery.”

However, in the Zander Case, the corporate stock in question was that of the American Telephone & Telegraph Company, and once the transfer was made on the corporate books, the donor had taken an irrevocable step to effectuate a transfer. The corporate books being beyond her control, she could not reserve a decision as Gustav Dahlke was unilaterally free to do in the instant case.

Although the appellant urges that it would be unconstitutional to classify differently the gift of stock of a small, closed corporation as opposed to that of a large, publicly owned corporation, we find no merit in such claim.

The appellant further argues that Gustav Dahlke’s remaining shares became impressed with a lien in favor of his minor son. The appellant reasons that a trust arose because of the father-child relationship. Stein v. Soref (1949), 255 Wis. 42, 38 N. W. (2d) 3. This argument presupposes that there was an intention to make a gift. Since we are persuaded that a donative intent has not been proved, it follows that the claimed trust never arose.

We consider that the analysis of the trial judge is consistent with the historical facts in this case and, further, that the plaintiff, Wayne Dahlke, failed to prove that Gustav Dahlke had a donative intent in connection with the claimed 42 shares. In any event, the findings of the trial court are not against the great weight and clear preponderance of the evidence.

By the Court. — Judgment affirmed.

The following opinion was filed February 2, 1965:

Per Curiam

(on motion for rehearing). The appellant contends that summary judgment should not have been granted because of the presence of an issue of fact. It is true that the record reflects a factual disagreement as to whether certificates numbered 55 to 59 were prepared in 1921 or at a date not earlier than 1928, and our original opinion recognized this disputed matter.

Even if the certificates were in fact prepared on the dates urged by the appellant, such finding could not support a holding in favor of the appellant upon this record. On the other facts which stand uncontroverted and the applicable law, the respondents were entitled to summary judgment. The presence of an issue of fact which could not, in any event, be determinative of the question in dispute does not preclude the granting of a summary judgment. De Bonville v. Travelers Ins. Co. (1959), 7 Wis. (2d) 255, 260, 96 N. W. (2d) 509, 97 N. W. (2d) 392.

The motion for rehearing is denied, without costs.


text:
    First National Bank in Oshkosh and another, Respondents, v. Scieszinski and others, Appellants.

      October 28

    November 24, 1964.

      For the appellants Edward J. Scieszinski and James L. Scieszinski there was a brief and oral argument by Noreen G. Bengston of Madison.
    For the appellant Ralph Kenneth Streuly there was a brief and oral argument by Cleland P. Fisher of Janesville.
    For the respondents there was a brief by Williams, Williams & Meyer of Oshkosh, for the First National Bank in Oshkosh, and R. Kintsler of Milwaukee, for the Allied Building Credits, Inc., and oral argument by Mr. Kintsler and Mr. Harry E. Meyer.

   Wilkie, J.

Three issues are presented on this appeal. They-are:

1. Is the court’s finding that the appellants conspired to defraud respondents against the great weight and clear preponderance of the evidence ?

2. Was the action against Streuly for fraud barred by his discharge in bankruptcy ?

3. Did respondents pursue all available remedies to mitigate damages ?

Conspiracy to Defraud.

A party alleging fraud has the burden of proving it by clear and convincing evidence. The elements of fraud are well established:

‘To be actionable the false representation must consist, first, of a statement of fact which is untrue; second, that it was made with intent to defraud and for the purpose of inducing the other party to act upon it; third, that he did in fact rely on it and was induced thereby to act, to his injury or damage.’ ”

Both credit applications contained false statements in regard to the ownership and purchase price of Streulys’ residence, and the amount of his outstanding debts. In addition, the First National application stated that there was no other home-improvement loan application pending, when in fact one was sent to Allied simultaneously. Also, the report received by respondents from the Credit Bureau of Walworth county was compiled on the basis of information submitted by some representative of Midwest.

False representations must be a material but need not be the sole inducement for entering into a contract. An assistant cashier at First National testified that the application and report were relied on in considering Streulys’ request and that, in his opinion, the loan would not have been granted had the facts been accurately related. The only testimony concerning Allied’s reliance on the application and report was by the office manager. Although he was not working at the Milwaukee office at the time the loan was granted, he stated that as a matter of course Allied always considers the application and credit report. It is reasonable to believe that Allied relied on the false statements. There is no question but that both respondents were damaged. Since there clearly was reliance on untrue statements, both the first and third elements of actionable fraud are present and the crucial question is whether there was an intent to defraud and a purpose of inducing the respondents to act upon these false statements.

Of course, no appellant admitted to an intent to defraud respondents. The record does not show who filled out the application or contacted the Walworth county credit bureau. Streuly took the Fifth amendment and Mrs. Streuly testified that while she did not volunteer any information to the Midwest salesman, Mr. Henry Kreuser, had the misrepresentations been on the application, she would not have signed. The salesman left Midwest just after the Streuly’s outstanding debts were paid off and was not called to testify. The Scieszinskis denied that they completed the form and pointed out that they were not present at the signing. However, the application sent to First National was signed by another brother (Thomas) who was authorized to bind the partnership. In endorsing the Streulys’ note to Allied sometime after January 30, 1960, Midwest (by James Scieszinski) warranted that:

“the total consideration for which this note was executed and delivered by maker was labor and/or materials, all of which has been furnished and/or completed.”

On February 20, 1960, after the improvements were made, the Streulys signed a completion certificate for First National which recited:

“I (we) further certify that no cash payment has been given or promised me (us) nor have I (we) been guaranteed any cash bonus or commission on future transactions as an inducement to consummate this transaction. . . .”

On behalf of Midwest, Ed Scieszinski also certified in the same document that:

“(1) The work or material as specified above constitute the entire consideration for which the loan is made. . . . (3) This contract contains the complete agreement with the borrower (4) The borrower has not been given or promised a cash payment nor has the borrower been guaranteed any cash bonus or commission on future transactions as an inducement to consummate this transaction. . . .”

After the certificate was signed, Midwest received a check from First National for $2,291. Within the next few days Midwest paid off Streuly’s debts of $1,544.75 to Thorp Finance and $297.25 to Pacific Finance. Allied’s manager testified that Streuly had told him in a phone conversation that these debts were paid out of the loan proceeds.

In Household Finance Corp. v. Christian, the court found that a representation was made with intent to defraud and for the purpose of inducing the other party to act. There, a borrower who had done previous business with Household desired another loan. He submitted a financial statement listing two debts and stating further, “I have no other debts.” After the loan was granted, it was learned that the borrower had many other outstanding debts. The sole issue before the court was whether Household relied on the representations, and the court said:

“We need only say that the record convinces us that the other elements of fraud are proved by clear and convincing evidence.”

Appellants contend that because the falsity of the statements could have been easily discovered, respondents cannot bring an action for fraud. The representations were not obviously false. Even assuming that the statements were clearly untrue, this fact could not have been readily ascertained. The difference in the geographic locales of the parties and the fact that neither respondent had ever dealt previously with Streuly made knowledge of any obvious untruth impossible. In addition, as Midwest had previously done between $80,000 and $100,000 worth of business with First National, it was not unreasonable for the bank to rely on the applications. It is true that respondents could not justifiably rely upon obviously false statements, but:

“ 'this does not require that he shall meet every positive statement with incredulity and must search to ascertain whether it is false. The law recognizes the duty of each to refrain* from even attempted deceit of another with whom he deals, and the right of the latter to assume that he will do so.’ ”

The court stated in Jacobsen v. Whitely that:

“It is an unsavory defense for a man who by false statements induces another to act to assert that if the latter had disbelieved him he would not have been injured.”

Appellants also contend that the money used to pay off Streuly’s debts came not from Midwest’s funds but rather from commissions owed the salesman, Kreuser. Kreuser’s benevolence, in turn, was purportedly prompted by Streuly’s promise to solicit business for him. This is directly controverted by the testimony of Allied’s manager that Streuly said the payments came from the loan proceeds. It is significant that Kreuser left Midwest’s employ immediately after the debts were paid off, thus eliminating any possibility of having his sales enhanced by Streuly’s efforts. At best, this whole argument appears, as the trial judge declared, “fantastic.”

The Scieszinskis contend that since they had no knowledge of any misrepresentations in the applications, they are not liable. This contention was met in Pollack v. Reserve Life Ins. Co. when the court said:

“ ‘But in such cases the scienter or wrongful intent is not indispensable. If it were the rule that a principal is immune from loss when his duly authorized agent makes false representations inducing a bargain, there would be little safety in a large proportion of the business transactions of daily life. The seller is hound to know that the representations made by himself or his authorised agent to induce a sale are truel ”

If we were to assume, contrary to Mrs. Streuly’s testimony, that the salesman innocently filled in the blanks according to the Streulys’ instructions, it would be clear that; at this point, the Scieszinskis had not as yet participated in any way in any scheme to defraud the respondents. But when the Scieszinskis, through Midwest, paid off Streuly’s outstanding 'debts in violation of their specific agreement with both respondents, they became actively ■ involved in the plot.

Appellants assert that there is no evidence in the record showing a conspiracy between themselves. It is not surprising that in-our search of the testimony we find not one appellant admitting co-operation with another. When the Streulys signed the applications and the Scieszinskis forwarded them to the respondents, they set in motion the wheels for the granting of the loans. Appellants did not inform either lender that an identical application was being submitted to the other. Although the evidence is insufficient to show a conspiracy to defraud at the exact time the credit applications were signed, when Midwest (through the Scieszinskis) later paid off debts that the borrower was not even supposed to owe, immediately after receiving money from First National and Allied which was specifically earmarked for improvements, there is evidence that the appellants were acting in concert to defraud the lenders, thus satisfying the third element to establish an action for fraud as against each appellant.

We conclude therefore that the fraud findings of the trial court are not contrary to the great weight and clear preponderance of the evidence.

Bankruptcy.

Appellant Streuly contends that his discharge in bankruptcy bars respondents’ action for fraud. The court held in Household Finance, that a judgment obtained in such an action:

“is not affected by defendant’s discharge in bankruptcy because defendant obtained that sum by false representations. 11 USCA, sec. 35 of the Bankruptcy Act.”

Mitigation of Damages.

The Scieszinskis contend that because respondents did not foreclose the mechanic’s lien or sue to have the quitclaim deed to Englund set aside, they have failed to mitigate damages. As the Scieszinskis assigned the lien to Allied, First National could not have foreclosed it. Streuly did not own the property but was in the process of purchasing it from Englund on land contract. Streulys’ deeding the land back to Englund for a consideration of less than $100 is indicia of the small equity ($3,500 less $3,330, or $170) he had in the property. It would not have been worth Allied’s bother or expense to have foreclosed the lien. An action to set aside the deed to Englund would have been futile since Streuly had little or no interest to attach once it was done.

By the Court. — Judgment affirmed.

        Neas v. Siemens (1960), 10 Wis. (2d) 47, 102 N. W. (2d) 259; Household Finance Corp. v. Christian (1959), 8 Wis. (2d) 53, 98 N. W. (2d) 390; Larson v. Splett (1954), 267 Wis. 473, 66 N. W. (2d) 181.

        Household Finance, supra, footnote 1, at page 55, 98 N. W. (2d) at page 392; W. H. Hobbs Supply Co. v. Ernst (1955), 270 Wis. 166, 169, 70 N. W. (2d) 615, 617; Larson, supra, footnote 1, at page 475, 66 N. W. (2d) at page 182.

        Household Finance, supra, footnote 1.

        Supra, footnote 1.

        Household Finance, supra, footnote 1, at page 56, 98 N. W. (2d) at page 392.

       Relying on Jacobsen v. Whitely (1909), 138 Wis. 434, 120 N. W. 285.

        Household Finance Corp., supra, footnote 1, at page 56, 98 N. W. (2d) at page 392; Jacobsen, supra, footnote 6, at page 436, 120 N. W. at page 286.

        Supra, footnote 6, at page 436, 120 N. W. at page 286.

       (1962), 15 Wis. (2d) 336, 341, 112 N. W. (2d) 907, 910. See also Heal v. Stoll (1922), 176 Wis. 137, 146, 185 N. W. 242. 245.

        First Nat. Bank in Oshkosh v. Scieszinski (1963), 22 Wis. (2d) 30, 125 N. W. (2d) 577.

        Supra, footnote 1, at page 58, 98 N. W. (2d) at page 393.


author: Beilfuss, J. Hallows, J.

text:
    Grant County Service Bureau, Inc., Appellant, v. Industrial Commission and another, Respondents.

      October 28

    November 24, 1964.

      For the appellant there was a brief by 'Kenneth M. Orchard of Madison, attorney, and L. James Leitl of Platte-ville of counsel, and oral argument by Mr. Orchard.

      For the respondent Industrial Commission the cause was argued by Roy G. Mita, assistant attorney general, with whom on the brief was George Thompson, attorney general.
    For the respondent Shirley Hoadley there was a brief by Morse & Morse of Lancaster, and W. L. Jackman of Madison, and oral argument by Mr. Jackman.

   Beilfuss, J.

The plaintiff, the appellant employer, contends that the evidence will not sustain the finding of ultimate fact that the deceased employee was fatally injured while performing services in the course of and incidental to his employment. It argues (1) that the employee was on a “frolic of his own” and that the employee’s activities were of no benefit to the employer, and (2) that the employee was in wilful disobedience of the employer’s directions.

Two basic rules of primary concern in appellate review of workmen’s compensation cases of this type are (1) if the credible evidence or reasonable inferences support the commission’s findings they are conclusive even though there may be credible evidence to sustain a contrary finding. Milwaukee v. Industrial Comm. (1963), 21 Wis. (2d) 129, 124 N. W. (2d) 112; Indianhead Truck Lines v. Industrial Comm. (1962), 17 Wis. (2d) 562, 117 N. W. (2d) 679; Schuh v. Industrial Comm. (1958), 2 Wis. (2d) 611, 87 N. W. (2d) 256; Unruh v. Industrial Comm. (1959), 8 Wis. (2d) 394, 99 N. W. (2d) 182; and (2) that the workmen’s compensation statute must be liberally construed in favor of including all services that can reasonably be said to come within the statute. Western Condensing Co. v. Industrial Comm. (1952), 262 Wis. 458, 55 N. W. (2d) 363; Severson v. Industrial Comm. (1936), 221 Wis. 169, 266 N. W. (2d) 235.

The pertinent section of the statute is in part as follows:

“Sec. 102.03 Conditions of liability. (1) Liability under this chapter shall exist against an employer only where the following conditions concur: . . .
“(c) 1. Where, at the time of the injury, the employe is performing service growing out of and incidental to his employment.”

In M. W. Martin, Inc., v. Industrial Comm. (1961), 13 Wis. (2d) 574, 580, 109 N. W. (2d) 92, wherein the issue of disobedience of employer's orders was considered, we said:

“The plaintiffs brief cites Fournier v. Androscoggin Mills (1921), 120 Me. 236, 113 Atl. 270, 23 A. L. R. 1156, and Hibberd v. Hughey (1923), 110 Neb. 744, 194 N. W. 859, as holding that an employee, who engages in an activity in disobedience of an order of his employer, thereby removes himself from the course of his employment so as to bar him from workmen’s compensation benefits if he is injured while so engaged. However, our statute, sec. 102.03 (1) (c), does not require that an injury, in order to be compensable, be ‘within the scope of employment,’ but only that at the time thereof the employee be performing service ‘growing out of and incidental to his employment.’ Butler v. Industrial Comm. (1953), 265 Wis. 380, 386, 61 N. W. (2d) 490. Furthermore, we deem that past decisions of this court have pretty well differentiated the type of situation in which disobedience of an employer’s order will not bar such employee, or his beneficiary, from workmen’s compensation benefits from the one in which such disobedience is held to bar recovery of such benefits. Therefore, it is unnecessary to draw upon the decisions of other jurisdictions for assistance in resolving the instant appeal.”

The Martin decision discusses several other disobedience cases. Those allowing recovery are: Frint Motor Car Co. v. Industrial Comm. (1919), 168 Wis. 436, 170 N. W. 285; Olson v. Industrial Comm. (1956), 273 Wis. 272, 77 N. W. (2d) 410; Sheboygan Airways, Inc., v. Industrial Comm. (1932), 209 Wis. 352, 245 N. W. 178; and Butler v. Industrial Comm. (1953), 265 Wis. 380, 61 N. W. (2d) 490. Two cases denying compensation are: Radtke Brothers & Korsch Co. v. Rutzinski (1921), 174 Wis. 212, 183 N. W. 168; and Kosteczko v. Industrial Comm. (1953), 265 Wis. 29, 60 N. W. (2d) 355.

From these cases the rule is adduced that if the disobedient actions were undertaken in furtherance of the employer’s interests rather than the employee’s, compensation is to be granted. The Radtke and Kosteczko Cases held that the disobedient actions under the facts presented were solely for the employee’s benefit, no benefit occurred to the employer, and compensation was denied.

From evidence in the record the commission could find that Hoadley, the deceased employee, was attempting to repossess the TV antenna for the benefit of his employer and not for the personal interest to obtain it for himself. The commission could further find as an ultimate fact that Hoadley’s actions were in the furtherance of the employer’s interest and as a conclusion of law that he was performing services growing out of and incidental to his employment.

The employer contends that the employee, 'in addition to wilful disobedience, violated the rule of the state commissioner of banks which subjected the employer to possible loss of its collector’s license, and that such disobedience and violation should defeat a right to compensation.

The banking department regulation in substance requires the collecting agency to furnish an agreement to the owner listing the accounts, the date such accounts were received, and rates to be charged and amount to be collected. A violation of this order could subject the employer to a loss of license.

It was the practice of the plaintiff employer to “set up” the accounts to be worked by compliance with this banking department regulation. It appears without dispute that the accounts in question were not “set up” by the employer and that it, in fact, ordered that they not be “set up” but returned to the owner because of the employer’s belief' that the accounts were uncollectible.

The employer did not know the accounts were secured by conditional sales contracts. Hoadley, upon his own investigation, determined they were and then, unknown to his employer, proceeded to repossess the TV set and antenna in the manner set forth above.

While the repossession of the TV and the antenna by Hoadley was’ in wilful disobedience to his employer’s directions and in violation of a strict interpretation of the banking department rule, the violation of !the rule in no way contributed to or caused his injury.

In Gimbel Brothers v. Industrial Comm. (1938), 229 Wis. 296, 302, 282 N. W. 78, we stated:

“If an employee is otherwise acting within the scope of employment, recovery is not defeated because he violated some rule or statute. Continental Baking Co. v. Industrial Comm. 222 Wis. 432, 438, 267 N. W. 540. See Annotation: 23 A. L. R. 1161; 26 A. L. R. 166; 58 A. L. R. 197.”

See also Karlslyst v. Industrial Comm. (1943), 243 Wis. 612, 11 N.W. (2d) 179.

' We are of the opinion that there is sufficient credible evidence to support the findings of the commission and that judgment should be affirmed.

We do not reach the question of workmen’s compensation coverage in those instances where an employee wilfully disobeys an order of the employer based upon the employer’s business policy limiting the scope and methods of the business as a part of managerial prerogative. The record in this case does not reveal an established business policy on the part of the employer that it would not engage in repossessions.

By the Court. — Judgment affirmed.

Hallows, J.

(dissenting). When the disobedience of an employee is deliberate and wilful and involves a matter of business policy falling within the scope of the managerial prerogative and not within the performance of the employee’s duty, an employee who is injured under such circumstances is not performing services “growing out of and incidental to his employment.” Prior decisions of this court allowing recovery in disobedience cases have involved safety rules or method of performance of an employee’s duties. This case is not one of an employer’s forbidding an employee from going on a roof of a building to recover a television antenna in the course of performing his duties but rather a case where the employee in disobedience determined what business his employer should engage in and in performing that business was injured. It matters not in such a case whether the employee thinks he is furthering the employer’s business. The employee here was, in fact, not furthering the employer’s business. His manner of “conducting the business” was in violation of the rules of the banking commission and of the statutes. In repossessing the television set and antenna the employee violated sec. 122.16, Stats., forbidding household furniture sold on a conditional sales contract from being retaken without legal process. The employer has the right to determine for himself correctly or erroneously what business he will accept and how he will conduct his business. When an employee usurps in disobedience the role of his employer, he no longer performs a service growing out of and incidental to his employment.

       Secs. 218.04, 218.04 (5), 218.04 (7), Stats.; sec. Bkg 74.02, 1 Wis. Adm. Code.

       This is not an instance of a violation of a safety rule so as to reduce recovery by 15 percent as provided in sec. 102.58, Stats.