author: Gordon, J. Beilfuss, J.

text:
    Houston, Appellant, v. Houston, Respondent.

      March 29

    April 27, 1965.

      For the appellant there was a brief by Phillips, Hoffman & Phillips of Milwaukee, and oral argument by N. Paley Phillips.

    For the respondent there was a brief by Stupar & Enich and Steve Enich and Reginald M. Hislop, Jr., all of Milwaukee, and oral argument by Steve Enich.

   Gordon, J.

“Hateful to me as are the gates of hell,

Is he who, hiding one thing in his heart,

Utters another.”

Homer — Iliad (Book IV, L. 386)

Mrs. Houston made numerous allegations of fraud, some of them rather flagrant ones. It does not appear that at the hearing she offered any evidence to support her charge that her previous attorneys had participated in the alleged fraud, nor did she attempt to prove that her former husband had concealed any of his assets.

The principal claim which Mrs. Houston sought to establish at the hearing was that relating to Mr. Houston’s understatement of the stock values; however, she was prevented from presenting this evidence because the trial court consistently sustained objections in regard to such proof in apparent reliance upon an erroneous interpretation of Weber v. Weber (1952), 260 Wis. 420, 51 N. W. (2d) 18. In both this court and in the trial court, counsel for Mr. Houston maintained that under the rule of Weber if the husband’s various assets were disclosed, the court could not permit an inquiry into their value.

The Weber Case involved the concealment of property, but the case does not hold, nor does it even follow from such case, that misrepresentations as to value are irrelevant in the search for fraud. In Barrock v. Barrock (1950), 257 Wis. 565, 569, 44 N. W. (2d) 527, this court said:

“It was plaintiff’s duty to establish the true value of his property at the trial, and to give minimized figures would constitute a fraud upon the court.”

Both the Weber Case and the Barrock Case were discussed in 1954 Wisconsin Law Review, 464, 478, 479, in an article by Harold A. Konnak entitled Survey of Wisconsin Domestic Relations Law, 1946-1953. At page 480, the author presents the following conclusion:

“Thus it would appear that any suppression of true values or concealment of assets by either party in a divorce suit would permit the aggrieved party to vacate the judgment of divorce in equity, at least so far as it relates to property division or allowances.”

Minor variances in opinion as to the value of closely held securities would probably not support a finding of fraud. Nevertheless, proof as to value is at the very least germane to an inquiry into alleged fraud. This is particularly true when the variances are as great as are alleged in the instant case. For example, the plaintiff attempted to present proof of value by evidence as to actual sales of stock during the period involved; it was error to have sustained objections to such testimony.

While the effect of the one-year provision of sec. 269.46, Stats., on the court’s right to re-examine the judgment because of an alleged fraud on the court was not raised by the parties in the instant case, we note that in the Weber Case over two years elapsed between the date of the divorce and the claim of fraud, yet this court permitted an inquiry into such fraud.

We express no opinion whatsoever as to the merits of Mrs. Houston’s allegations. Our holding goes no further than to conclude that she was not given an adequate opportunity to prove her allegation that Mr. Houston had fraudulently misrepresented the value of his holdings.

By the Court. — Order reversed, and cause remanded for further proceedings.

Beilfuss, J.

(dissenting). I would affirm. The judgment based upon stipulation was granted September 24, 1959. The petition to reopen the judgment was not made until June 9, 1964, almost five years later.

The plaintiff seeks to reopen the judgment upon her allegation that a fraud has been committed on the court. In Weber v. Weber (1952), 260 Wis. 420, 431, 51 N. W. (2d) 18, cited by the majority, we state: “Actions of this nature are not favored by the courts generally, and each case must be judged on its own facts.”

I agree with the majority in their conclusion that the Weber Case does not restrict the inquiry to matters of concealment. Gross undervaluation or intentional misrepresentations could be relevant as to the question of fraud on the court.

In this instance it does not appear that there was a concealment of assets — on the contrary it affirmatively appears that a list of all the property was furnished by the defendant to the plaintiff and her attorney some three months before the divorce was granted.

The stipulation is extensive and detailed and contains the following:

“. . . that plaintiff hereby accepts the considerations hereinafter mentioned from defendant as and for full satisfaction and discharge of alimony and counsel fees and as such full and final division and distribution of the estate and property of the parties in lieu of all alimony and as essential term of this stipulation and as essential consideration supporting this stipulation without which this stipulation would not have been made; that plaintiff agrees that none of the provisions of this stipulation, excepting only those relating solely to support or custody of the minor children of the parties, are in any way subject to modification, revision, adjustment or change for any reason whatsoever including without limitation change or alleged change in the economic circumstances of either of the parties, and that such provisions are the sole and only provisions made or to be made for plaintiff; that it is an essential condition of, and essential consideration supporting, this stipulation without which it would not have been made, that the Court expressly intend, determine, and adjudicate, as essential to judgment herein, so far as it affects the property and financial interests and obligations of the parties hereto, that the Court does not have and shall not have any power of modification, revision, adjustment or change of such provisions, . .

The written conclusions of law reached by the court provide in part:

“Third. That the stipulation entered into between the parties hereto on the 22nd day of September, 1959, with the approval of their respective attorneys, and discussed in open court, has the approval of the court in its entirety and shall be incorporated in the judgment to be entered herein as follows: (Thereafter, there is set forth the entire stipulation of the parties).”

It is apparent that the question of the division of estate was not lightly considered by the parties or the court. The plaintiff had ample opportunity by discovery or trial to challenge and determine the values of the property. She also had the opportunity to seek relief from the stipulation under the terms of sec. 269.46, Stats.

I would hold that where the parties enter into a stipulation providing for a division of estate and the stipulation has the approval of the court that in the absence of a showing of concealment of assets the complaining party cannot be relieved from the effects of the stipulation unless he acts within the year pursuant to sec. 269.46, Stats.

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

       “Relief from judgments, orders and stipulations; review of judgments and orders. (1) The court may, upon notice and just terms, at any time within one year after notice thereof, relieve a party from a judgment, order, stipulation or other proceeding against him obtained, through his mistake, inadvertence, surprise or excusable neglect and may supply an omission in any proceeding.”


source: Caselaw Access Project

author: Beilfuss, J.

license: Public Domain

text:
    Heffernan, Respondent, v. Heffernan, Appellant.

      March 29

    April 27, 1965.

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

   Beilfuss, J.

The defendant sets forth the following contentions upon this appeal: (1) The evidence is insufficient to grant a legal separation, (2) the division of estate is inadequate, (3) permanent alimony should have been awarded, (4) the interest on the $15,000 deposited in court during the pendency of the appeal should be paid to defendant, and (5) the plaintiff should have been found in contempt of court for violation of a temporary order.

As to all of the issues raised by the defendant upon this appeal, her burden is substantial. She must either show that the findings of the trial court are against the great weight and clear preponderance of the evidence, or that the orders of the trial court constitute an abuse of judicial discretion.

Sufficiency of the evidence. The parties were married April 15, 1961. The action was commenced and the parties separated on or about May 4, 1963. A legal separation was requested because of religious preference.

At the time of the trial the plaintiff husband was sixty-four years old and the defendant wife fifty-four years old.

This was the first marriage for the plaintiff. He had several relatives and maintained close family ties. He had been a successful dentist for many years and had achieved some additional financial success in side business ventures and investments. His net worth was about $200,000.

At the time of the marriage the defendant had been a widow for about ten years. She had two mature children, both married. For some time prior to the marriage she had been employed as a medical assistant and was earning approximately $3,700 per year. Her assets were nominal and plaintiff had paid some of her obligations just prior to the marriage.

The courtship was for about one year. Both parties had lived in apartments. Shortly after the marriage, upon the insistence of the wife, the parties bought a $30,000 home and furnished it with expensive furnishings. The husband preferred to live in an apartment but acceded to the desires of the wife.

From the record it is readily apparent that the husband was modest and guarded in his expenditure of funds for personal convenience and comfort, and that the wife insisted upon expenditures and a standard of living deemed unnecessary and unreasonable by the husband. Their most-serious basic difference was the expenditure of money.

We can easily conclude that the parties were incompatible but incompatibility is not a ground for divorce or legal separation recognized by the Family Code in Wisconsin. The question before us is, did the conduct of the wife toward the husband amount to cruel and inhuman treatment as that term has been defined in the law of this state ?

Throughout the years-this court has on many occasions reviewed records wherein “cruel and inhuman treatment” was considered. Excerpts from a few of these cases are as follows:

Reinhard v. Reinhard (1897), 96 Wis. 555, 558, 71 N. W. 803:

“The effect of such conduct upon a nervous, sensitive woman can better be imagined than described, and may have seriously impaired the plaintiff’s health, as found by the court. This court has repeatedly held that personal violence, whether actual or threatened, or even gross and abusive language, is not absolutely essential to constitute cruel and inhuman treatment.”

Kohl v. Kohl (1910), 143 Wis. 214, 218, 125 N. W. 921:

“Though the ill treatment may not be said to have operated directly on the body, it however was of a nature well calculated to inflict pain and suffering in body and mind, and thus to produce injurious results which make cohabitation dangerous to the defendant’s health and life and to render it wholly impracticable for him to properly discharge his marital obligations. When the treatment of either spouse by the other so affects the injured party and the marriage relation, it is cruel and inhuman treatment in the law and constitutes grounds for divorce.” Accord, Hiecke v. Hiecke (1916), 163 Wis. 171, 157 N. W. 747.

Banks v. Banks (1916), 162 Wis. 87, 88, 155 N. W. 916:

“The grievous mental suffering which may be inflicted by one spouse upon the other by means of words and conduct causing wounded feelings may result in the most serious cruel and inhuman treatment and render cohabitation intolerable and unsafe and wholly prevent the discharge of the marital duties by the innocent party.”

Bird v. Bird (1920), 171 Wis. 219, 221, 177 N. W. 4:

“Whether certain conduct is cruel and inhuman depends upon the effect it has upon the offended spouse. Conduct which will cause great anguish and suffering to a sensitive nature will be passed unnoticed by one of a crass disposition. The evidence which tends to establish cruel and inhuman treatment on the part of plaintiff must be considered with reference to its effect upon the defendant.” See also Moen v. Moen (1946), 249 Wis. 169, 23 N. W. (2d) 472; Mentzel v. Mentzel (1958), 4 Wis. (2d) 584, 91 N. W. (2d) 101.

Gordon v. Gordon (1955), 270 Wis. 332, 339, 340, 71 N. W. (2d) 386:

“There is no yardstick definition for cruel and inhuman treatment. Each case depends for construction on its own peculiar circumstances. ‘. . . parties cannot be divorced on the ground of cruelty merely because they live unhappily together from unruly tempers or marital wranglings. Married persons must submit to the ordinary consequences of human infirmities and of unwise mating, and the misconduct which will be ground for a divorce as constituting cruelty must be serious. Mere austerity of temper, petulance of manners, rudeness of language, or even occasional sallies of passion if they do not threaten bodily harm or impairment of health, do not as a general rule amount to cruelty. ... It is a status wherein the law operates upon the weakness as well as the strength of human nature, and it will not be dissolved except for grave and substantial causes.’ . . . However, treatment which does or is well calculated to impair the health of a party, makes the marriage state intolerable and renders a party incapable of performing his or her duties in married life, satisfies the ‘cruel and inhuman treatment’ referred to in the statute. [Cases cited.]” Accord, Nehls v. Nehls (1963), 21 Wis. (2d) 231, 124 N. W. (2d) 18; Voigt v. Voigt (1963), 21 Wis. (2d) 421, 124 N. W. (2d) 640; Mayhew v. Mayhew (1942), 239 Wis. 489, 1 N. W. (2d) 184.

From these cases we conclude that no precisely described or enumerated acts of one spouse toward another can be defined as cruel and inhuman treatment. In order to constitute cruel and inhuman treatment, such as to warrant the granting of a divorce or a legal separation, the court must consider the totality of conduct and the detrimental effect it has upon necessary marital relationships and its grave effect upon the health of the other spouse. The conduct of the offending spouse must be unreasonable and unwarranted, it must render the parties incapable of performing their marital duties, and it must have a detrimental effect upon the physical or mental health of the offended spouse. In applying these tests the court should be cognizant of the desirable public policy in maintenance of marriage and family. The court may properly consider the age of the parties, the duration of the marriage, and presence and age of the children and the probability of delinquency, and the public dependency of the parties or the children.

Applying these tests to the facts of this case, we find we have two mature, middle-aged persons who had established their own divergent habits and modes of living which will not readily accommodate to change, the marriage was of short duration, there are no children and neither party is likely to become a public charge. Over and above these considerations, was the conduct of the defendant toward the husband such as to constitute cruel and inhuman treatment? We have said it is apparent that the parties were incompatible. Did this incompatibility ripen into cruel and inhuman treatment?

We do not intend to detail the testimony, for it serves no useful purpose. The record speaks for itself. A brief and partial summary shows that the plaintiff offered testimony to support his allegations that the defendant, without justification, was unreasonably financially demanding, domineering, abusive and profane in language toward him, ridiculed him, was unappreciative and unaffectionate, reluctant to associate with his relatives, and referred to him as mentally ill. He further testified that this conduct did affect his physical and mental well-being to the extent that it was necessary to seek medical assistance. The defendant categorically denied most of his claims, explained others and professed the marriage was happy and companionable except for minor arguments over financial matters.

Clearly this record presents a classic example of where the credibility of the witnesses and the weight of the testimony must be left to the judicious determination of the trial court. The testimony offered by either side was not inherently incredible, but as stated by the able trial judge, “One almost cannot believe one without converting the other into being a prevaricator.” The trial court had as guides, imperfect as they may be, the appearance and demeanor of the witnesses in response to questions, the nature, reasonableness and probability of the testimony, their attitude and demeanor toward the court, officers of the court, the other party and witnesses, and other incidents and observations that tend to lend or detract credibility and weight in determining the truth of the matter.

We conclude the findings of the trial court are not against the great weight and clear preponderance of the evidence, that they were sufficiently corroborated, and that the findings are sufficient to constitute cruel and inhuman treatment entitling the plaintiff to a judgment of legal separation.

Division of estate and alimony. The testimony reveals that plaintiff had a net worth of about $200,000, and an annual income from his profession of dentistry and his investments of about $12,500. The defendant, at the time of marriage, had inherited roughly $1,750. She spent a part of this fund in preparation for the marriage and the remainder after her marriage. Just prior to the marriage the plaintiff had paid about $1,800 of defendant’s obligations. Her separate estate then, if any, was nominal. At the time of her marriage she was earning $3,700 per year. She claims to have lost social-security benefits which would become payable to her by virtue of her first husband’s contributions. She does not dispute that she can establish her own social-security eligibility by virtue of her own employment.

The defendant made no financial contributions to plaintiff’s net worth. The parties lived together for about two years. She was paid $300 per month as temporary alimony until the granting of the judgment. She will have $18,000 in cash, or its equivalent. There is nothing to indicate she cannot resume her employment at a comparable wage. Her financial position is more secure now than it was before the marriage. She has no dependents.

Although we do not consider the award of $18,000 in lieu of alimony to be generous in view of the financial standing of the plaintiff, we do not determine it to be inadequate. There is no showing that the trial court did not consider all of the essential factors in its consideration of the division of the estate and permanent alimony. No abuse of judicial discretion on the part of the trial court appears, and the award of $18,000 as a division of the estate in lieu of alimony is approved.

Interest on funds deposited with the court. The judgment provided that plaintiff was to pay the $15,000 in cash within thirty days. The plaintiff complied with that portion of the judgment by paying the money into court. When it became apparent that the defendant intended to appeal, the judgment was amended to provide that the defendant could occupy the home during the pendency of the appeal upon the payment of $100 per month to the plaintiff, and that $15,000 be invested with interest to accrue to the plaintiff. The temporary alimony of $300 per month was terminated when the judgment was granted. The amended judgment left the defendant in the position where she no longer received temporary alimony nor the right to occupy the home without compensating the plaintiff. In exchange, so to speak, she was to receive the possession and use of her share of the division of the estate. Under the terms of the amendment she received neither the possession nor the use (the interest) of what has been determined to be her share. We approve of the amendment insofar as it required her to pay for the occupancy of the home and the direction to invest the $15,000, but we do, under the circumstances as related above, determine it was an abuse of discretion to provide that the accrued interest should be paid to the plaintiff. The judgment should be further amended to provide that the interest accrued on the $15,000 shall be paid to the defendant.

Contempt of court. Defendant contends that the plaintiff should have been found in contempt of court for failure to comply with a temporary order of the court as to the disposition of assets and timely payment of temporary alimony. There is no showing that plaintiff’s failure to strictly comply with the temporary order in any way prejudiced the rights of the defendant. The failure of the trial court to find the plaintiff in contempt of court did not amount to an abuse of discretion.

By the Court. — Judgment as amended shall be modified to provide that interest earned on the $15,000 deposited with the clerk of court and invested in First Federal Savings & Loan Association shall be paid to the defendant and, as so modified, is affirmed. No costs to be taxed.

Gordon, J., took no part.

       See sec. 247.26, Stats.; Bruhn v. Bruhn (1928), 197 Wis. 358, 222 N. W. 242; Caldwell v. Caldwell (1958), 5 Wis. (2d) 146, 92 N. W. (2d) 356; Trowbridge v. Trowbridge (1962), 16 Wis. (2d) 176, 114 N. W. (2d) 129; Kronforst v. Kronforst (1963), 21 Wis. (2d) 54, 123 N. W. (2d) 528.


author: Wilkie, J.

text:
    Belisle, by Guardian ad litem, Appellant, v. Belisle, Respondent.

      March 29

    April 27, 1965.

      For the appellant there was a brief and oral argument by Charles R. Ellejsen of Hudson.
    For the respondent there was a brief by Doar & Knowles of New Richmond, and oral argument by W. T. Doar.

   Wilkie, J.

Three issues are raised on this appeal. They are:

1. Since no testimony was taken at the hearing on April 20, 1961, was there error in entering the order of July 17, 1961, in which custody was transferred from the appellant to the paternal grandmother ?

2. Was it error following the 1963 and 1964 custody hearings to continue custody in the paternal grandmother without a specific finding that appellant “was unfit?”

3. Is the trial court’s decision of May 14, 1964, against the great weight and clear preponderance of the evidence ?

Appellant’s attack on the July 17, 1961, order amounts to an appeal from that order and must fail since the time for appeal has clearly lapsed. Even assuming the appeal to be timely, the question of whether the lack of a record is fatal to the validity of the order is rendered moot because proper records were made of the two subsequent hearings on the same issue.

Appellant contends that it was error for the trial court, after the 1963 and 1964 hearings, to continue custody in someone other than a parent without a finding that appellant was unfit, pursuant to sec. 247.24, Stats. The decision of the court after the original custody hearing in 1961 was that “the temperment [sic] of the Mother is such that the Court feels that she is not a good person to have the custody of this child.” At the contempt hearing later in 1961, the judge specifically stated that, “This court is of the opinion [that appellant’s] . . . home is a unfit home.” After the hearing on July 24, 1963, the judge stated that “When this matter was up before the court nearly two years ago the court made a finding that neither the plaintiff or the defendant was the proper person to have custody of the child. . . .” The judge added that no testimony was introduced which “would warrant changing the custody.” In its decision after the latest hearing the court opined that appellant was “still emotionally unstable.” So while the trial court did not expressly find appellant “unfit” in its decision relating to the order involved on this appeal, a review of all proceedings in this case leaves no doubt that this is what was meant. At any rate, this court has held that a finding of “an emotional disturbance of a parent which makes it harmful to the welfare of a minor child to continue custody in such parent” is tantamount to a finding of unfitness within the meaning of sec. 247.24, Stats.

Appellant next contends that the finding that she is unfit is against the great weight and clear preponderance of the evidence. What proof is there in the record of appellant’s “emotional instability?” The original switch in custody in 1961 was prompted by the stabbing incident. In November of 1962 appellant traded blows with a girl in a local tavern. There was a similar misunderstanding with another girl in the spring of 1963. On the eve of the New Year, 1964, she became involved in another altercation which started in a restaurant-bar owned by her third husband’s parents and continued outside in the street.

At the latest hearing other evidence established that at the time she was twenty-two, was married to William Leske who tended bar at his parents’ restaurant-tavern, and was making $175 per month as a bookkeeper-secretary in a restaurant although she planned to quit soon because of pregnancy, that she attended church regularly, and that she and her husband live in an apartment with her child from her second marriage. There was testimony to the effect that she was an excellent housekeeper, that she was very neat in personal appearance, that she was a good mother to her daughter.

Thus, it is true that things are different in 1964 from what they were in early 1961. Appellant is no longer in jail where she was when the custody of Daniel was awarded to Mrs. Belisle. She has a home of her own and has remarried. She has the custody of her daughter by her second marriage. But while these changes have occurred the record clearly supports the trial court’s finding that she is still emotionally unstable.

Custody matters are highly discretionary and the rule is well established that the trial court’s determination will not be upset in the absence of a clear abuse of discretion. Although each case must be considered in light of all the particular facts and circumstances, guidelines have been established to aid the trial court in its decision. True, other things being equal, preference will ordinarily be given to the mother if she is not unfit. This is not a rule of law, but merely an important element to be considered; the crucial and controlling factor is the welfare of the child.

Since the welfare of the child is paramount the court could properly consider that no evidence was adduced at the hearing to show that Daniel’s placement at the home of Mrs. Belisle was working against his welfare. While appellant urges that Mrs. Belisle was forty-seven years old at the time of the 1964 hearing and that there is an age gap of about nine years between Daniel and Mrs. Belisle’s son, the only other child in the home, the mere existence of these age differentials without proof that Daniel is somehow adversely affected does not demonstrate that a change of environment is necessary.

Appellant also contends that because she has been deemed fit to have custody of the daughter born of the Hopkins marriage, she should be deemed fit to have custody of Daniel. The daughter’s custody is pursuant to a decree of the county court in St. Croix county, and presumably there has been no dispute over the custody of that child. Furthermore, many of the events considered by the court in the present case on the matter of custody of Daniel could not have occurred at the time of the St. Croix divorce and custody decree. Clearly, the St. Croix county court has not had the opportunity to pass on the same issue as was adjudicated here by the Polk county court.

In essence, the trial court was shown nothing to indicate that the present custody arrangement is harmful to Daniel. It was convinced and we think properly so that the mother’s emotional instability has continued and that for the best interests of Daniel, custody should remain where it is in the paternal grandmother.

By the Court. — Order affirmed.

Beilfuss, J., took no part.

        Seelandt v. Seelandt (1964), 24 Wis. (2d) 73, 128 N. W. (2d) 66.

       See also Bohn v. Bohn (1962), 16 Wis. (2d) 258, 114 N. W. (2d) 423.

        Seelandt v. Seelandt, supra, footnote 1, at page 82.

        Bohn v. Bohn, supra, footnote 2; Smith v. Smith (1957), 1 Wis. (2d) 174, 83 N. W. (2d) 672.

        Graichen v. Graichen (1963), 20 Wis. (2d) 200, 121 N. W. (2d) 737; Dodge v. Dodge (1955), 268 Wis. 441, 67 N. W. (2d) 878.

         Acheson v. Acheson (1940), 235 Wis. 610, 294 N. W. 6.

        Welker v. Welker (1964), 24 Wis. (2d) 570, 129 N. W. (2d) 134.

        Welker v. Welker, ibid.; Seelandt v. Seelandt, supra, footnote 1; Greenlee v. Greenlee (1964), 23 Wis. (2d) 669, 127 N. W. (2d) 737.


author: CuRRiE, C. J.

text:
    Estate of Seliger: Bauman, Appellant, v. Bass and others, Defendants: Seliger (Ruth), Respondent.

      March 29

    April 27, 1965.

      For the appellant there was a brief by James E. Shapiro and Herbert S. Bratt, both of Milwaukee, and oral argument by Mr. Bratt.

      For the respondent there was a brief and oral argument by Irving Lowe of Milwaukee.
   CuRRiE, C. J.

The motion for review and appeal present these issues:

(1) Did the trial court exceed its authority and abuse its discretion in extending the time for appeal ?

(2) How are the words “entire estate” contained in the bequest to the widow to be construed ?

(3) Is the widow’s one-third bequest inclusive or exclusive of the sum of her widow’s allowance ?

Order Extending Time for Appeal.

The respondent widow by her motion for review attacks the validity of the county court’s order which extended the time within which the appellant Eva Bauman might appeal from the court’s order construing the will.

In the first place the validity of the extension order cannot be raised by a motion for review. This is readily apparent upon reading sec. 274.12 (1), Stats. The reason is because the motion for review must seek “a reversal or modification of the judgment or order or portion thereof appealed from.” Respondent here does not seek any reversal or modification of the order construing the will which appellant has appealed from but a reversal of a subsequent order. In order to attack this subsequent order it was incumbent upon respondent under sec. 274.12 (4), to separately appeal therefrom which she did not do.

However, the motion for review is dated December 3, 1964, which was well within the thirty-day period from appellant’s perfection of her appeal on November 19, 1964, but the record does not disclose when it was served on other interested parties or their counsel or upon the register in probate. Sec. 274.11 (4), Stats., provides that this court shall have jurisdiction over the subject matter of an action from the time an appealable order is entered. The county court’s order of November 4, 1964, extending time to appeal is an appealable order. Therefore, under sec. 269.51 (1) , appellant by participating in the appeal and not moving to dismiss the motion for review has waived the right to object to this court passing on the merits of the motion for review which we treat as if it were a properly perfected appeal from the extension order. See Asen v. Jos. Schlitz Brewing Co. (1960), 11 Wis. (2d) 594, 106 N. W. (2d) 269.

Passing now to the merits of the extension order, we hold the petitioner’s failure to request an extension of time in which to appeal did not render this order invalid. Sec. 324.05, Stats., provides for two types of relief. We do not deem that the failure of the petitioner to ask for the particular type of relief granted is fatal so long as the verified petition or affidavit upon which the order is entered is sufficient to support the order.

Thus the crucial question is whether appellant Bauman’s verified petition set forth facts which would warrant the trial court in concluding her failure to appeal from the order construing the will within the sixty-day period allotted by sec. 324.04 (1), Stats., was without fault on her part. Paragraph 10 of her petition alleged:

“That your petitioner resides in the State of New Jersey and is unfamiliar with the laws of the State of Wisconsin, and your petitioner personally and through an attorney in the State of New Jersey, has requested her Co-Executors in this matter, to-wit: Bass & Goldstein, (Gerald L. Bass and Bernard Goldstein) to appeal the Order of this Court dated May 22, 1964, and they have failed and refused so to do.”

While not any model in preciseness, this paragraph is open to the reasonable interpretation that appellant by reason of her New Jersey residence and the nonco-operation of her co-executors was unaware during the sixty-day period following the order of May 22, 1964, of the statutory requirement that any appeal had to be taken within such sixty-day period. A further reasonable inference to be drawn is that her request to her coexecutors to appeal from the order occurred during the sixty-day period and their failure to do so absolved her from fault. We conclude that it was not an abuse of discretion for the county court to so interpret the allegations of paragraph 10 of the petition. Cf. Estate of Baumgarten (1961), 12 Wis. (2d) 212, 224, 107 N. W. (2d) 169, holding that the statutory words “without fault” are to be liberally construed.

The order extending time to appeal fails to contain any recital or finding that appellant was without fault in failing to appeal within the allotted sixty days. It merely recites that appellant’s petition made pursuant to sec. 324.05, Stats., came on for hearing on October 30, 1964; the appearance of the parties at this hearing; and that the court was “duly advised in the premises.” Inasmuch as the legislature has not seen fit to require that an order granting relief under sec. 324.05 contain a recital or finding of no fault on the part of the applicant, this court is not inclined to make such recital or finding an absolute requirement by court decision. Sec. 324.05 is a remedial statute and should be liberally construed to accomplish its objective.

Construction of Will.

We turn now to the issues relating to the construction of the will. Clause 1 of the will revoked all prior wills. Clause 2 directed payment of expenses of last illness and funeral expenses as soon as is practical. Clause 3 was entitled, “Bequests to Wife,” and provided as follows:

“3 (a). I hereby give, devise and bequeath one-third (Ys) of my entire estate to my wife, Ruth Seliger (nee Glogau), who presently resides at 2021 East Marion Street, Milwaukee 11, Wisconsin.
“3 (b). In computing this one-third devise, my Executors shall take into account and deduct from this devise the clear market value at my death, of any property, either real or personal, passing to my wife, Ruth Seliger, by right of joint tenancy, survivorship, operation of law or any other manner other than by the terms of this Will.
“3(c). In computing this one-third devise, my Executors shall further take into account and deduct the amount of any life insurance proceeds which my wife shall receive by reason of my death, from any life insurance policies which I owned during my lifetime.
“3 (d). The specific property to pass under this' devise shall be determined by my Executors, and their decision as to such property shall be final and binding upon all parties having a beneficial interest under this Will.
“3 (e). The market value determinations provided for in this Paragraph shall be in accordance with the determination of values by the Court appointed appraisers in my estate or by independent professional appraisal, in the absolute discretion of my Executors. The cost of any appraisal so made shall be paid for out of my residual estate.
“3 (f). I further give, devise and bequeath unto my wife, in addition to the devise provided for above, the automobile which I shall own at the time of my death, upon the express condition precedent that if said automobile shall not be fully paid for, that my wife shall assume the obligation of paying any installment payments or balance owed on said automobile.
“3 (g). If my wife, Ruth Seliger, predeceases me, the devises made in this Paragraph shall be inoperative, and said devises shall become a part of and be disposed of in accordance with the terms of the trust hereinafter created as my residual estate.”

The first problem that arises is with respect to interpretation of the words “entire estate.” Do they mean gross estate before any deductions for debts, expenses of last illness, funeral expenses, administration expenses and amount paid as widow’s allowance, or do they mean net estate after deducting these items? The county court interpreted “entire estate” to be the equivalent'of gross estate before making any deductions. No evidence extraneous to the will was adduced which throws any light upon the intention of the testator in using this phrase “entire estate.”

The learned trial court in its memorandum decision pointed out that there was no case law which was helpful in arriving at a solution. The trial court, therefore, turned to Webster’s Third New International Dictionary definition of the word “entire” as meaning “whole, undiminished, unimpaired.” We likewise have received little assistance from the case law with the single exception of the New Jersey case of Smith v. Terry (1888), 43 N. J. Eq. 659, 12 Atl. 204. In that case testatrix included the following bequest in her will, “I give to my . . . daughter . . . the interest of the equal undivided one-sixth interest, part or portion of my whole estate ...” The court construed “whole estate” to mean the property in the estate which was left after payment of debts and administration expenses. In its opinion the court stated (at p. 666) :

“The question is whether the one-sixth interest is the proportion of the entire amount of the property of the testatrix without any deduction for debts, or is that part of the property of the testatrix after such deduction. The expression, ‘my whole estate,' without any other words in the will modifying its meaning, I think, would signify the property which would be left for distribution after the payment of the debts of the decedent and the expenses of administration. Unless words or phrases used in a will have a legal signification arising from judicial or legislative construction, they should receive that interpretation which they would impart to the ordinary mind.
“A man’s estate means what he is worth in property, and that is the value of his property over and above his liabilities. When a man is spoken of as leaving an estate of a particular amount, that is the sense in which it is meant.”

We do not believe that the ordinary person who provides in his will that a legatee receive a fraction of his estate contemplates that such computation is to be made before deduction of liabilities. We do not consider that a different result is intended by employing such phrases as “entire estate” and “whole estate.” We conclude, therefore, that respondent widow’s one-third share is to be computed upon the net estate after deduction of all liabilities and expenses. Whether the $3,750 widow’s allowance is also to be deducted is dependent on whether her one third is to be exclusive or inclusive of that amount. Testator at time of death had no life insurance payable to his widow and owned no property in joint tenancy with her. If there had been any such life insurance or property held in joint tenancy with her, the value of the same would have had to have been added to the net estate in making this computation in view of the wording of paragraphs 3 (b) and 3 (c) of the will. While the amount of the widow’s allowance would be deductible in arriving at the net estate to be distributed, it would have to be added back in to compute the widow’s one-third bequest, if the amount thereof is chargeable to the widow as part of her bequest.

Whether respondent widow’s one-third bequest is inclusive or exclusive of the $3,750 widow’s allowance is dependent upon whether such allowance is “property . . . passing to my wife, Ruth Seliger, by . . . operation of law or any other manner other than by the terms of this will” under the wording of paragraph 3 (b) of the will.

In Deller v. Deller (1910), 141 Wis. 255, 124 N. W. 278, a widow had entered into an antenuptial agreement with the deceased testator whereby she agreed to accept $5,000 out of his estate “in lieu of all right, title, and interest which she would have by law in the said estate.” This court held that this language was sufficient to bar the widow from any statutory widow’s allowance and in its opinion stated (at p. 264) :

“When she asks that a very considerable sum of money be paid her [for widow’s allowance], which can only be paid by turning over a portion of the estate, or of the proceeds derived from the sale thereof, a claim is necessarily made to a share of the estate.”

A majority of the court consisting of Mr. Justice Gordon, Mr. Justice Beilfuss, Mr. Justice Heffernan and the writer of this opinion conclude under this holding that payment of a widow’s allowance in the instant case constitutes payment of a portion of the personal property of the estate within the meaning of paragraph 3 (b). Estate of Beat (1964), 25 Wis. (2d) 315, 130 N. W. (2d) 739, is distinguishable because there the widow under the postnuptial agreement did not release all her right to her husband’s estate, but only as to property “owned by Roy Beat at the time of their marriage.”

The majority further deem it immaterial whether a widow’s allowance is technically received “by operation of law.” If not so qualifying because it is not usually granted except on a petition by or in behalf of the widow, it is property received by her “other than by terms of the will.” We attach no significance to the phrase “clear market value” appearing in paragraph 3 (b). While it may be argued that this phrase has reference to particular identifiable, property, we think it was used because of the reference to possible property held in joint tenancy by the deceased and respondent. Thus the majority concludes that the $3,750 of widow’s allowance is to be included in computing the widow’s bequest, and, therefore, such bequest is not exclusive of the allowance.

Mr. Justice Fairchild, Mr. Justice Hallows, and Mr. Justice Wilkie would hold that the widow’s allowance does not constitute “property” within the meaning of paragraph 3 (b). Therefore, they would compute the respondent widow’s one-third bequest upon the net estate after having deducted the widow’s allowance, which bequest she would receive in addition to her widow’s allowance.

By the Court. — Order reversed, and cause remanded for the entry of a proper order construing Clause 3 of the will which is consistent with this opinion.

       Sec. 274.12 (4), Stats., provides: “When any respondent desires to review an order, judgment or portion thereof not appealed from, he shall within 30 days after service on him of notice of appeal take and perfect his appeal or be deemed to have waived his right so to appeal.”

       Sec. 269.51 (1), Stats., provides: “When an appeal from any court, tribunal, officer or board is attempted to any court and return is duly made to such court, the respondent shall be deemed to have waived all objections to the regularity or sufficiency of the appeal or to the jurisdiction of the appellate court, unless he shall move to dismiss such appeal before taking or participating in any other proceedings in said appellate court.”

       Sec. 324.05, Stats., provides: “If any person aggrieved by any act of the county court shall, from any cause without fault on his part, omit to take his appeal within the time allowed, the court may, upon his petition and notice to the adverse party, and upon such terms and within such time as it shall deem reasonable, but not later than one year after the act complained of, allow an appeal, if justice appears to require it, with the same effect as though done seasonably; or the court may reopen the case and grant a retrial, but the order therefor must be made within one year after the act complained of.”


author: Heffernan, J. Hallows, J.

text:
    Liebmann Packing Company, Respondent, v. Industrial Commission, Appellant: Kacmarynski, Defendant.

      March 30

    April 27, 1965.

      For the appellant Industrial Commission there was a brief by Arnold J. Spencer, chief counsel of the unemployment compensation division, and Ralph E. Kline of Madison, and oral argument by Mr. Spencer.

    For the respondent there was a brief by Evrard, Evrard, Duffy, Holman & Faulds of Green Bay, and oral argument by James R. Faulds.

   Heffernan, J.

The question is whether there was credible evidence by which the trial court could have sustained the findings of the commission that the employee was not discharged for “misconduct” as defined in sec. 108.04 (S), Stats.

The findings of fact of the commission are conclusive on this court if there is any credible evidence which, if unexplained, would support the findings. Marathon Electric Mfg. Corp. v. Industrial Comm. (1955), 269 Wis. 394, 69 N. W. (2d) 573, 70 N. W. (2d) 576; Carr v. Industrial Comm. (1964), 25 Wis. (2d) 536, 131 N. W. (2d) 328.

The court is not bound by the commission’s determination of a question of law. Gregory v. Anderson (1961), 14 Wis. (2d) 130, 138, 109 N. W. (2d) 675; Cheese v. Industrial Comm. (1963), 21 Wis. (2d) 8, 15, 123 N. W. (2d) 553; Milwaukee Transformer Co. v. Industrial Comm. (1964), 22 Wis. (2d) 502, 510, 126 N. W. (2d) 6.

When the question of fact concerns a person’s acts or his intent in doing such acts, and the evidence and reasonable inferences therefrom would support any one of two or more findings, a finding by the commission is conclusive. Cheese v. Industrial Comm., supra, at page 15.

Sec. 108.04 (5), Stats., provides that an employee’s eligibility “. . . shall be barred for any week of unemployment completed after he has been discharged by the employing unit for misconduct connected with his employment . . . .” “Misconduct” was defined in Boynton Cab Co. v. Neubeck (1941), 237 Wis. 249, 259, 296 N. W. 636, as that which evinces:

“. . . such wilful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability, wrongful intent or evil design, or to show an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his employer.”

This definition was recently approved in Milwaukee Transformer Co., supra, at page 511.

The trial court, in its memorandum opinion, referred to these basic rules, but in its opinion used the following language :

“. . . the clear preponderance of the evidence submitted by the employer . . . showed that in the last year and one-half of his employment, the claimant showed a wilful disregard of his obligations and duties to his employment and a disrespect to his superiors.”

Another excerpt from the trial court’s opinion is as follows :

“From the foregoing it would appear that a reviewing Court has a very limited power and must confine itself to errors in respect to legal determinations made by the Commission. This Court is of the opinion that it is not so limited. If it were so, the legislature would have so provided. Where the Commission’s findings are made contra to a clear preponderance of the credible evidence or based on illogical or unreasonable inferences from such evidence, can it be said that a reviewing Court is powerless to act and grant relief? The answer is no.”

In the above statement of the circuit judge it appears that he is using the test of “preponderance of the credible evidence” as the burden of proof necessary to sustain the findings of the commission. This is not the test that has heretofore been recognized by this court. All that is required is “any credible evidence, if unexplained . . .” It is the conclusion of this court, after a review of the record, that there is credible evidence to sustain the findings of the commission. The evidence may be conflicting. The preponderance of the credible evidence may, in the view of an appellate court, be contrary to the findings of the commission; yet, pursuant to well-established principles of administrative law, these findings will not be set aside. Undoubtedly, ambiguous conclusions can be reached on the basis of the evidence herein, but if the evidence and the reasonable inferences drawn therefrom support the findings of the commission, a court is not at liberty to set those findings aside.

The incidents and the evidence upon which the employer relies permit a reasonable inference that the employee’s actions were not “misconduct” as contemplated by the statute.

There is evidence by the company to show that the employee “sneered” when his employer reprimanded him for failure to work at the rate expected, but there is also evidence that the sneer was a laugh of embarrassment; and, accordingly, the commission might, on the basis of the evidence, reasonably have found that the action of the employee was not misconduct.

All of the other incidents cited by the employer can be explained on the basis of the evidence as actions not amounting to misconduct.

The failure to move six quarters, as the employer demonstrated, could be construed as a failure to meet an optimum, but not necessarily as a wilful failure to meet a mandatory standard.

The employee was reprimanded for talking with others, but there was evidence that this was a not unusual occurrence, and there was no evidence that this alone was considered to be misconduct. The time “wasted” in transferring from shackling calves to working on the killing floor was explained by evidence showing that he had to change clothes. There was evidence denying that the employee laughed, sang, or sneered when he was reprimanded. Without detailing all of the grounds of misconduct relied upon by the employer, it appears from the evidence that all of the incidents can be explained by evidence from which the reasonable inference can be drawn that the employee was not guilty of misconduct in the statutory sense.

This is not to say that the discharge itself was improper; this is a matter within the reasonable discretion of the management. In this matter we are concerned only with the eligibility for unemployment compensation, and we conclude that the trial court was in error in reversing the findings of the commission. There is credible evidence to support its findings. The legislature has made the policy decision that unless the discharge is for “misconduct,” an employee must be compensated. See discussion of legislative policy in Cheese v. Industrial Comm., supra, at page 16.

By the Court. — Judgment reversed.

Hallows, J.

{dissenting). To me, the inferences drawn by the Industrial Commission in rejecting the findings of its examiner are unreasonable and without support in the evidence. Consequently, the Industrial Commission is without power to make such findings. Only one reasonable inference can be drawn from the evidentiary facts as a matter of law and that is the employee was guilty of misconduct as that term is used in the statute. The evidence is compelling that the employee’s conduct evinced a wilful and wanton disregard of the standards of behavior which the employer had a right to expect and which was in violation of the employee’s duty to his employer.

This is not a case of whether there is credible evidence, sufficient evidence, some evidence, or just evidence, to sustain. the findings. On review of an award of the Industrial Commission under sec. 108.09 (7), Stats., we are confined to questions of law unless the findings of fact are not within the power of the commission to make or are a result of fraud. An award is not within the power of the Industrial Commission to make if it is based on speculation and conjecture or does not have evidence to sustain it. Hills Dry Goods Co. v. Industrial Comm. (1935), 217 Wis. 76, 258 N. W. 336. Evidence to sustain the award need not constitute the preponderance of the evidence. It is misleading to state that the “some credible evidence” rule applies to an award of the Industrial Commission because we review the evidence for the purpose of determining whether the Industrial Commission had power to make the award, while in reviewing a jury’s verdict we examine the evidence not in respect to power but in respect to the quantum of proof necessary to sustain the award on its merits.

In this case I believe the evidence presented only a question of law which the Industrial Commission erroneously decided.


author: Hallows, J.

text:
    Webb and others, Appellants, v. Wisconsin Southern Gas Company, Inc., Respondent.

      March 30

    April 27, 1965.

      For the appellants there was a brief and oral argument by Berwyn B. Braden of Lake Geneva.
    For the respondent there was a brief by Aberg, Bell, Blake & Metsner of Madison, and oral argument by Carroll Mets-ner.

   Hallows, J.

The appellants contend the verdict is contrary to the credible evidence and the trial court was in error in failing to submit requested instructions.

The evidence concerning the explosion was conflicting and the jury accepted the defendant’s version of how the accident happened and disbelieved the plaintiffs, which it had a right to do. Viewing the evidence in the light most favorable to the verdict, as we must, there is sufficient credible evidence to support it and the verdict should not be upset on appeal. Firkus v. Rombalski (1964), 25 Wis. (2d) 352, 130 N. W. (2d) 835; Springen v. Ager Plumbing & Heating, Inc. (1963), 19 Wis. (2d) 487, 120 N. W. (2d) 692. True, there is evidence to support the plaintiffs’ version and as they contend the verdict is contrary to such evidence, but that fact alone is not enough to upset the verdict. The test is not what the jury could have found but whether what it did find is supported by sufficient credible evidence. Estate of Starer (1963), 20 Wis. (2d) 268, 121 N. W. (2d) 872.

The plaintiffs’ home was heated by gas and consisted of several rooms which on the first floor included a bathroom and an adjoining utility room. The utility room could only be entered through the bathroom which was reached from a hallway which opened to the kitchen on one side and to the outdoors on the other. The gas water heater was located in the utility room and a gas space heater in the bathroom. Before the explosion, the door between the utility room and the bathroom was closed.

On the morning of April 3d Mrs. Webb arose about 7 a. m., used the bathroom and there was warm water. Shortly thereafter Mr. Webb used the bathroom, returned to the bedroom and partially dressed. He lit a cigarette and went back to the bathroom and started to open the door to the utility room when the explosion occurred. The space heater and part of one wall of the bathroom were blown into the yard. The door between the bathroom and the utility room was blown into the utility room, the two walls of the utility room were blown out, but the hot water heater was not damaged. There was evidence of charring and burning in the bathroom but not in the utility room.

The plaintiffs tried the case on the theory the pilot light of the gas water heater went out and the automatic shutoff valve failed to shut off the gas to the appliance. The gas water heater, which had a history of sporadic malfunctioning, was an automatic unit equipped with a safety shutoff valve designed to automatically shut off the flow of gas to the burner whenever the pilot light was extinguished. The vent to the water heater extended outside the house but terminated beneath the eaves of the roof, a type of ventilation which was not recommended and under some wind conditions would cause the pilot light to go out. On several occasions in 1959 and in 1961 service calls were made to service the water heater. On the last call on March 24th, approximately two weeks before the explosion, it was discovered the safety valve was defective and would not shut off the gas when the pilot light went out. This could not be repaired and a new safety valve was ordered. There was some evidence the valve was reassembled defectively and put back into the heater.

Under the defendant’s version there was testimony the serviceman had informed a Mr. Terrell, the father of Mrs. Webb who lived in the house, that the water heater should be operated manually until a new safety valve could be installed. Experts testified that in their opinion the explosion took place in the bathroom and not in the utility room. There was some dispute in the evidence of whether the gas space heater in the bathroom was in use. The Webbs testified they rarely used it; however, the space heater had been repaired on a service call when a new coil was placed therein approximately three months prior to the accident. Mr. Webb in giving the history of his injuries told two doctors he was injured by an explosion from a space heater in his home. The evidence was also conflicting on the use of the water heater. The plaintiffs testified they did not operate the heater manually but there is contradictory evidence Mrs. Webb asked her husband to light the hot water heater immediately before the explosion occurred and that was what he was going into the utility room to do. Other witnesses testified the Webbs had told them they were using the hot-water heater manually.

The jury could find that in disregard of the instructions of the defendant’s serviceman the plaintiffs were using the gas water heater automatically and the pilot light did go out. But if the plaintiffs were using the gas heater automatically against the instruction of the defendant, there would be no negligence on the part of the defendant but negligence for such use on the part of the plaintiffs. The jury might have found the plaintiffs were using the gas water heater manually and had failed to shut off the gas the night before the explosion and the gas escaped from the appliance when the thermostat called for heat. Either version would sustain the verdict as well as the possibility of an unknown leak in the space heater. However, the defendant did not have the burden of proving how the explosion happened; it need only prove it was not negligent on the plaintiffs’ theory of the explosion. In this view the defendant was unable to immediately repair the appliance and instructed the plaintiffs how to use the heater in a safe manner. But the plaintiffs claim this is not the limit of the defendant’s duty and the defendant should have shut off the gas because of the defective safety valve and improper venting.

At the trial the plaintiffs requested an instruction on the duty of a gas company adapted from Weber v. Interstate Light & Power Co. (1955), 268 Wis. 479, 68 N. W. (2d) 39, to the effect that a gas company is negligent if a defect is present in the customer’s pipes and appliances providing it has sufficient notice of such defect and negligently inspects or repairs, or agrees to inspect and repair knowing a dangerous condition exists and then fails to do so, or refuses to inspect and repair knowing a dangerous condition exists and fails to shut off the gas until the owner can have the pipes and appliances properly repaired. In addition a request was made for an instruction on the standard of care required when dealing with a dangerous agency adapted from Wis J I — Civil, Part I, 1020, and an instruction outlining the duties of a gas serviceman when servicing a customer’s appliances. The trial court denied the plaintiffs’ request for the instructions based on the Weber Case because they were not applicable to the issue but did instruct the jury on ordinary negligence and its relationship to care and vigilance when dealing with a dangerous agency such as natural gas.

We find no error. This case is not one of a leaking pipe or of an appliance ignored by the defendant. There was no issue the defendant negligently inspected or repaired or refused to inspect or repair the hot-water heater. The appliance could not be repaired to work automatically without a new valve. The testimony was to the effect the circumstances did not demand the gas to be shut off completely as the hot water heater could be safely operated manually even with substandard ventilation. Under the circumstances the plaintiffs’ claim amounts to the requirement as a matter of law that a gas company must at its peril shut off its gas and not permit a customer to operate a gas appliance manually. We do not understand that to be the law.

The plaintiffs rely on four cases from other jurisdictions, but we do not find them controlling. In Bellefuil v. Willmar Gas Co., Inc. (1954), 243 Minn. 123, 66 N. W. (2d) 779, an explosion occurred which was attributable to a defect in an automatic shutoff valve of a hot-water heater. The defendant was held not liable on the ground it had no notice of the defect; it was noted the gas company had a duty to shut off the gas supply whenever it had notice of facts which indicated the likelihood of danger and would prompt a person of ordinary care and prudence to shut off the gas. In Cleveland Gas Co. v. Woolen (1947), 30 Tenn. App. 282, 205 S. W. (2d) 754, the water heater was not equipped with an automatic shutoff of which the defendant had knowledge. The gas supply was temporarily interrupted and consequently when the service was resumed the gas freely escaped from the heater into the plaintiff’s basement and was ignited when the defendant’s serviceman came to inspect the heater. The gas company was held liable. In Sternbock v. Consolidated Gas Utilities Corp. (1940), 151 Kan. 81, 98 Pac. (2d) 162, an explosion occurred due to a leak in the defendant’s gas line which was old and in need of repair and liability was predicated upon the company’s duty to inspect and maintain its own lines in safe condition. In Clay v. Butane Gas Corp. (1949), 151 Neb. 876, 39 N. W. (2d) 813, the defendant was held liable when its distributor filled the plaintiff’s tank without checking the gas-line connections in the plaintiff’s basement although the distributor knew the plaintiff had disconnected the lines prior to that time.

These cases and others collected in the annotation, 72 A. L. R. (2d) 865, point out the well-established rule that the ordinary care of gas companies requires greater vigilance or effort, sometimes called the higher degree of care, when dealing with gas than under less-dangerous circumstances. In its instructions the trial court correctly pointed out that ordinary care is not a static but a relative concept equated to the degree of care which the ordinarily prudent man customarily exercises under the same or similar circumstances. And, under special circumstances of potentially greater danger of harm, ordinary care is equated to the degree of care customarily used by the prudent people who are usually confronted with such circumstances. The degree of effort, caution, or diligence required of a person to reach or attain the standard of ordinary care necessarily varies with the degree of hazard inherent under the circumstances. The trial court adequately instructed a higher degree of vigilance and caution than in ordinary affairs of life and business was required in dealing with natural gas because of its highly explosive and dangerous character and its tendency to escape its proper containers.

The trial court has discretion in instructing a jury as to matters of emphasis, choice of language, and detail or brevity so long as it fully and fairly informs the jury of the rules and principles of law applicable to the particular case. Henrikson v. Maryland Casualty Co. (1958), 3 Wis. (2d) 379, 88 N. W. (2d) 729. The court should not incorporate into its charge assumptions or positive statements as to facts which are in dispute so as to impress its interpretation of the evidence upon the jury or give undue prominence to the contention of one party without giving equal prominence to the contention of the other party. Kuklinski v. Dibelius (1954), 267 Wis. 378, 66 N. W. (2d) 169. Nor need the court give instructions on specific acts of negligence which are not proved or in issue. We find no error in the instructions which the court gave or in its refusal to give the requested instructions.

By the Court. — Judgment affirmed.


author: Fairchild, J.

text:
    Kreuscher and wife, Respondents, v. Wisconsin Electric Power Company, Appellant.

      March 30

    April 27, 1965.

      For the appellant there was a brief by Heide, Sheldon, Hartley & Thom and W. A. Sheldon, all of Kenosha, and oral argument by W. A. Sheldon.

    For the respondents there was a brief by Vaudreuil & Vaudreuil of Kenosha^ and oral argument by Leo E. Vaud-reuil.

   Fairchild, J.

Defendant’s principal challenge is to the sufficiency of the evidence to support the verdict. It also claims to have been prejudiced by evidence which the jury heard, but was later stricken, and by alleged improper argument.

Defendant points out that the easement and transmission line do not materially impair the usefulness of plaintiffs’ land as a farm. Farm machinery can pass under or around the tower with little inconvenience. Defendant contends that residential development of plaintiffs’ land is a speculative and merely possible future occurrence, too remote for consideration in determining market value. Plaintiffs contend that the most-advantageous use of the land, within a reasonable time in the future, is for residential development, even though it has been used for farming up to now. They claim that the strip subject to the easement (4.722 acres) is useless for residence purposes and that the presence of the transmission line impairs the value of the remaining 74.278 acres east of MB for residential development.

Mr. Fiedler was the only expert witness on value called by defendant. He resides in Milwaukee, and makes land appraisals, having retired from the farm-loan department of an insurance company. In his opinion farming is the best use for plaintiffs’ land; the market value of the entire farm was $84,665 before the taking and $84,215 after the taking, the damage being $450. It is undisputed that there is no present substantial development of land in the town of Paris for residential purposes.

Plaintiffs called two expert witnesses. Dale Kreuscher is a real-estate broker living on a farm he owns in the town of Paris. He has noted an increase in demand for small residence tracts. He has made sales to people from Chicago who can drive to work there on 1-94 in an hour and fifteen minutes, and to people from Kenosha and Racine. The prices for such property are rising. He had purchased a 70-acre tract on the west side of MB north of plaintiffs’ property. He has not subdivided, but has sold one acre and a half lot for $1,660 and another for $2,000. He considered plaintiffs’ land east of MB worth $400 per acre before the taking. His opinion of the value before taking was $30,000 (derived by multiplying $400 times 75, rather than 79). He deducted $1,890 (4.722 acres, rendered useless, at $400 per acre) and deducted $7,500 more (75 times $100, estimated loss of value per acre because of the undesirable presence of the tower). This produced a difference of $9,390 and a value after the taking of $20,610.

Leonard Smith is a real-estate and mortgage broker living in the adjoining town of Somers, with training in appraisal work. In his opinion, subdivision of plaintiffs’ land into acre or acre and one half lots would be the most-advantageous use of the property because of access from Racine, Milwaukee, and Chicago. There is a complete subdivision to the north in Racine county, just west of 1-94 and adjoining it. He considered the plaintiffs’ property east of MB before the taking worth $425 per acre, or $31,875 for 75 acres. He deducted $2,000 (4.722 acres at $425 per acre) and $6,750 more ($90 average loss of value on each of 75 acres). This produced a difference of $8,750 and a value after the taking of $23,125.

Plaintiffs’ experts considered that the transmission line affected the value of the land east of the road, only.

The record shows nothing with respect to the value of the farm buildings except a statement by Dale Kreuscher that they are of no great value. Apparently they are east of MB. It may be inferred that Fiedler placed a substantial value on the buildings and that this is reflected in his valuation of the farm as a whole.

The court instructed the jury:

“. . . In answering all of the questions in the special verdict it is proper for you to take into consideration, as shown by the evidence, the use to which the property was put by the owner, or any other use to which it was reasonably adaptable, and you may base your determination on the most-advantageous use shown to exist either at the time in question or within a reasonable time in the near future. The future uses considered, if any, must be so reasonably probable as to affect present market value. They must not, however, be mere possible uses based upon mere fancy, speculation, theory or conjecture.”

The instruction is supported by decisions of this court.

The jury must have rejected Mr. Fiedler’s testimony that the entire property was worth $84,665, for they found it to be worth $76,600 before the taking. On a per-acre basis, this was $390 per acre. They must have concluded that it was worth as much as $76,600 only if residential development were considered its most-advantageous use, and apparently found that the presence of the high line destroyed the usefulness of the 150-foot strip for residence purposes and depreciated the remaining land east of the road about $25 per acre. The after-taking value found by the jury ($73,000) equals the sum of the value of the 117 acres west of MB at $390 per acre plus the value of land east of MB (taken at 75 acres) exclusive of the 150-foot strip at $365. The figures used are more favorable to defendant than the testimony of Dale Kreuscher and Smith. The jury must have inferred from their testimony that demand of buyers for this property for subdivision for residential purposes is reasonably probable in the near future and affects present market value. We cannot find the testimony inherently incredible, nor say as a matter of law that the inference cannot reasonably be drawn.

Counsel for defendant has pointed out two instances where evidence was stricken by the court, upon motion. One was an incomplete statement as to the provisions of statutes relating to subdivision. The portion stricken could not have been prejudicial. The other was an answer that there was the possibility that the company would come in for maintenance purposes, and a buyer would shy away because of this possibility. It is questionable whether the terms of the easement would permit defendant to cross the other land of-plaintiffs in order to enter the 150-foot strip for maintenance purposes, but we deem it highly improbable that the jury’s hearing of the answer had any material effect upon the verdict.

Counsel for defendant made two objections during the argument to the jury on behalf of plaintiffs. The argument was not recorded. One objection took issue with a reference to residences on state highways in the county. The court noted the objection, agreeing that there was no evidence on the matter, but pointing out that the argument was offered as background. From the record we are unable to say that any impropriety was prejudicial to defendant. At another point counsel for defendant objected to argument about the width of the strip taken. The court said:

"Court: I appreciate there is no issue as to the width of the easement and why they took it, but counsel may draw inferences from the taking if they are pertinent to value.”

On motions after verdict the court recalled that:

. . plaintiffs’ counsel argued in substance that the taking of a 150 foot strip did not appear to be necessary for construction needs and therefore was apparently or presumably taken to insure further safety. The argument went on as I recall that therefore it would appear that the company realized there was an element of danger which might very well affect the market value of these lands for home site purposes so far as the buyer was concerned. My ruling must, of course, speak for itself. I thought then and I believe now that the argument was fair comment as long as the jury understood there was only the question of value involved. I do not believe that the remark was prejudicial. It seems to me that the verdict itself reflects no prejudice.”

We find no prejudicial error.

By the Court. — Judgment affirmed.

Gordon, J., took no part.

        Alexian Brothers v. Oshkosh (1897), 95 Wis. 221, 223, 70 N. W. 162; Muscoda Bridge Co. v. Grant County (1929), 200 Wis. 185, 190, 227 N. W. 863; Carazalla v. State (1955), 269 Wis. 593, 598, 70 N. W. (2d) 208, 71 N. W. (2d) 276; Utech v. Milwaukee (1960), 9 Wis. (2d) 352, 356, 101 N. W. (2d) 57. See also sec. 32.09 (2), Stats.


author: Heffernan, J.

text:
    Breitenbach, Administrator, Respondent, v. Gerlach, Appellant.

      March 30

    April 27, 1965.

      For the appellant there was a brief and oral argument by Emery Porter of Milwaukee.
    For the respondent there was a brief and oral argument by Jack C. Ottenstein of Milwaukee.
   Heffernan, J.

The question presented, therefore, is whether the defendant’s affidavit establishes a prima facie case in relation to the issues raised by the pleadings and whether the counteraffidavits of the plaintiff raise such questions of fact that they must be resolved by trial. It is our opinion that the bill of sale set forth in the defendant’s affidavit is alone sufficient to not only constitute a prima jade case defeating the plaintiff’s cause of action, but also in the absence of a counteraffidavit in any way questioning it, the bill of sale constitutes a defense as a matter of law. The bill of sale was executed and signed by the plaintiff, and it recites that the plaintiff has been paid in full by the defendant for the purchase price of the equipment sold. It is almost axiomatic that a receipt acknowledging payment in full is prima jade proof of the payment of purchase money in the absence of proof to the contrary. Crowe v. Colbeth (1885), 63 Wis. 643, 24 N. W. 478; People v. Evanston R. Co. (1926), 323 Ill. 109, 153 N. E. 603; Cummings v. Lynn (1903), 121 Iowa 344, 96 N. W. 857; and Wherley v. Rowe (1909), 106 Minn. 494, 119 N. W. 222; 40 Am. Jur., Payment, p. 900, sec. 290; 70 C. J. S., Payment, pp. 252, 253, sec. 48. The rule is summarized in American Jurisprudence:

“A receipt in full of all demands is prima facie proof of a settlement between the parties, and of the payment of the balance; it is not merely evidence of the sum specified in it. A receipt is not a contract, and it may be explained and controlled in its operation by parol evidence. The receipt is open to proof that there was a mistake in stating the account, in striking the balance, in telling the money, in the nature or value of the thing paid, and the like. It may be shown that it was given through mistake or fraud, or that it was not intended to release the particular demand sued on. The receipt, however, remains evidence of the facts stated in it until those facts are clearly disproved, and a mistake or fraud shown, and when executed with a knowledge of all the circumstances, and without mistake or surprise on one part, or fraud or imposition on the other, is a good defense to a clahn.” 40 Am. Jur., Payment, p. 898, sec. 287.

Under this set of facts, where there is no evidence to the contrary creating a question whether the plaintiff did in fact receive payment as indicated in the bill of sale, the defendant has established a prima jade defense and is entitled to summary judgment. The plaintiff in his counteraffidavit merely denies any knowledge that the bill of sale had been delivered to the defendant and denies any knowledge that the defendant had taken possession of the property, and the plaintiff denies that he has any knowledge that payment was made to Mr. Olszyk, the attorney. This denial of knowledge does not constitute any refutation or even question of the material portions of the bill of sale. The bill of sale recites that the plaintiff Breitenbach has been paid by Fred Gerlach and that in exchange for the receipt of $800 the property is conveyed to Fred Gerlach. Rather than casting any doubt upon the validity of the bill of sale, the plaintiff’s affidavit by referring to it acknowledges its authenticity. There is no claim or suggestion that the bill of sale is not authentic, was not executed by the plaintiff, or was obtained by fraud, duress, or mistake or by any other means which would question the probative effect of the bill of sale. In short, the bill of sale stands un-impeached by the affidavit of the plaintiff.

It is elementary that if facts are evidenced by documents or public records they control on motion for summary judgment unless the opposing party shows facts sufficient to raise an issue as to their authenticity or conclusiveness. Stoiber v. Miller Brewing Co. (1950), 257 Wis. 13, 42 N. W. (2d) 144. If the documents are undisputed in support of the motion, the court must grant it. Joannes v. Rahr Green Bay Brewing Corp. (1950), 257 Wis. 139, 42 N. W. (2d) 479.

In the case of Londo v. Integrity Mut. Ins. Co. (1946), 249 Wis. 281, 24 N. W. (2d) 628, the plaintiff applied for windstorm insurance. It was admitted that the agent advised the applicant that the insurance would go into effect on that day — the day of signing the application. The application, however, carried the proviso that the application was not to take effect until “approved by the secretary and a policy issued thereon . . . company shall not be bound by any . . . statement . . . by . . . any agent . . . not contained in this . . . application.”

The application was rejected after actual knowledge of the loss. The plaintiff sued on the basis that the application and oral representations gave him insurance coverage. The defendant insurance company moved for summary judgment and filed an affidavit reciting the terms of the application. This court reversed the trial court’s decision and ordered summary judgment for the defendant, stating:

“The ground of the court’s denial of a summary judgment was, in substance, that the powers of the agent of the company who took the application were in dispute under the affidavits presented by the plaintiff; and that these affidavits tended to show that it was the practice of the company to date its policies the date of the application and under the common practice of the defendant and other companies issuing storm insurance policies their policies became effective from the date of the application.
“We are of opinion that the court should have entered a summary judgment of dismissal upon the provision of the application for insurance above quoted, regardless of the dispute as to the facts respecting the matters on which the court based its denial. When undisputed documents submitted in support of a motion for a summary judgment show that the movant is entitled to the judgment demanded, the court must grant the motion, whatever other facts may be in dispute under the record. The terms of the statute were in all respects complied with by the movant. See sec. 270.635, Stats.” Londo v. Integrity Mut. Ins. Co., supra, at page 283.

Sec. 270.635 (6), Stats., makes it clear that such an interpretation is demanded by the statute:

“When an answer alleges a defense which is prima facie established by documents or public records, judgment may be entered for the defendant unless the plaintiff shows facts sufficient to raise an issue with respect to the verity or conclusiveness of such documents or records.”

It is also significant in the instant case that although the plaintiff’s complaint is sufficient to state a cause of action, it is couched purely in terms of ultimate facts, which is, of course, proper in phrasing a complaint. But when the complaint is reviewed in connection with the affidavit of the defendant, no factual issues are raised. The affidavit of the defendant sets forth the evidentiary facts that clearly establish in fact that the plaintiff has no cause of action against the defendant, and accordingly the defendant is entitled to summary judgment unless the plaintiff by affidavit shows facts which the court shall deem sufficient to entitle him to a trial. This the plaintiff has failed to do by affidavit or otherwise.

In the proceedings held in the trial court, the plaintiff moved to strike certain paragraphs of the affidavit on the basis that the evidence offered therein was incompetent as concerning transactions with a deceased agent and therefore could be received by the court only in violation of sec. 325.17, Stats. Since this motion was not directed at the portions of the defendant’s affidavit we deem vital to his motion, the legal issues raised concerning the competency of the testimony need not be determined. The trial judge held that the motion to strike constituted an attack on the defendant’s affidavit and therefore raised fact questions entitling the plaintiff to a trial. We do not agree.

Assuming arguendo that the trial judge is correct and that fact issues can be raised by this motion, the motion to strike is not directed at the crucial paragraphs which allege the receipt of a bill of sale and the execution of an affidavit under the Bulk Sales Act. Therefore, under any interpretation, the evidentiary facts entitling the defendant to judgment were not questioned. In short, the motion to strike at best merely attempted to exclude evidence the plaintiff considered to be incompetent, but, in the view of this court, was in any event unnecessary to sustain the defendant’s motion for judgment. Furthermore, this court is at a loss to determine by what authority the plaintiff utilized the motion to strike. The procedure for a summary judgment is statutory, and the only acceptable method of raising a factual question entitling a party to trial is the filing of the affidavits or other proof as provided in sec. 270.635 (2), Stats. While the plaintiff did file an affidavit in addition to the motion to strike, the affidavit did not attack the veracity or conclusiveness of the bill of sale set forth in the documents submitted by the defendant.

We therefore conclude that the plaintiff has failed to show facts sufficient to raise an issue entitling him to a trial.

By the Court. — Order denying summary judgment reversed, and cause remanded for the entry of summary judgment for the defendant.


author: Gordon, J.

text:
    Electric Storage Battery Company, Appellant, v. Black, Respondent.

      March 31

    April 27, 1965.

      For the appellant there was a brief by Winter & Winter of Antigo, and oral argument by Richard T. Winter.

    For the respondent there was a brief by Charles B. Avery of Antigo, attorney, and Schmitt, Wurster, Tinglum & Nolan.of Merrill of counsel, and oral argument by Sverre Tinglum.

   Gordon, J.

Consideration.

The respondent’s letter of July 30, 1960, was sufficient to meet the requirements of sec. 241.02 (2), Stats. When Mr. Milo Black prefaced his guaranty with the words, “In regard to credit rating for Gerald Black, . . .” he adequately expressed the consideration necessary to take the case from the statute of frauds, since it is clear from the record that the guaranty did not relate only to a past purchase. Miami County Nat. Bank v. Goldberg (1907), 133 Wis. 175, 113 N. W. 391; Waldheim v. Miller (1897), 97 Wis. 300, 72 N. W. 869; Young v. Brown (1881), 53 Wis. 333, 10 N. W. 394; Dahlman v. Hammel (1878), 45 Wis. 466; Williams v. Ketchum (1865), 19 Wis. 247 (*231).

In Eastman v. Bennett (1857), 6 Wis. 228 (*232), 239 (*242), we quoted with approval the view that “there is a wide difference between the guaranty of an existing debt and the guaranty of a debt to be contracted upon the credit of guaranty.” The court went on to state:

“It appears from the correspondence between the parties that the plaintiffs agreed to sell the goods to Clark upon credit, on condition that the defendant would guaranty the debt. The goods were really sold upon the faith and credit of this contract of guaranty, and the consideration appearing upon the face of the letter is sufficient to support the contract.”

Notice of Acceptance.

All courts agree that if the contract of guaranty affirmatively calls for notice, it is a condition which must be met in order to bind the guarantor on his promise. Mr. Milo Black’s letter of guaranty, dated July 30, 1960, does not expressly cover the question whether he expected to be notified by the creditor that the latter accepted the guaranty and intended to make deliveries of merchandise in reliance thereon. Courts have not been uniform in their decisions on the issue whether notice of intention to accept such a guaranty is necessary in order to hold the guarantor liable.

Some courts have held that if there is any fair reason for the guarantor to be uncertain that the creditor will accept the proposed guaranty, a notice of the intention to accept is a constructive condition to the liability of the guarantor. Ladd & Bush v. Hayes (9th Cir. 1939), 105 Fed. (2d) 292; Davis Sewing Machine Co. v. Richards (1885), 115 U. S. 524, 6 Sup. Ct. 173, 29 L. Ed. 480; Black, Starr & Frost v. Grabow (1914), 216 Mass. 516, 104 N. E. 346.

In Restatement, 1 Contracts, p. 64, sec. 56, appears the following illustration:

“1. A writes to B: ‘Let C have $100 and I guarantee its repayment.’ Immediately on receiving this communication, B lets C have $100 but fails to notify A of the fact, although he knows that A is not otherwise likely to learn of it. B cannot enforce the guaranty if C fails to pay the debt.”

The decisions of the state of Wisconsin demonstrate that notice of acceptance to the guarantor is ordinarily required. In A. B. Kuhlman Co. v. Cave (1908), 135 Wis. 279, 115 N. W. 793, the guarantor wrote a letter to the creditor which contained the following:

“I request that should Mr. Leon H. Cave . . . order goods from you at any time after date of this letter of credit until further notice, that you ship same to order of said agent, and I hereby guarantee payment for the same within twenty days after the arrival of the goods at destination.”

The trial court rendered judgment in favor of the creditor against the guarantor, and the supreme court reversed, with the following holding, at page 280:

“It is plain that this judgment was erroneous. The writing sued on was simply a letter of credit and constituted an offer merely on the part of the defendant, which would not become a contract until accepted and notice of acceptance given to the guarantor. This has been so recently held by this court that no extended discussion of the principle is either desirable or necessary. Miami Co. Nat. Bank v. Goldberg, 133 Wis. 175, 113 N. W. 391. See, also, New Home S. M. Co. v. Simon, 104 Wis. 120, 80 N. W. 71. No acceptance or notice of acceptance was found by the court; hence no completed contract of guaranty was made and no liability incurred.”

It will be observed that in the Kuhlman Case the court relied on Miami County Nat. Bank v. Goldberg (1907), 133 Wis. 175, 113 N. W. 391, which had been decided only five months earlier. In that case, the defendant wrote the following letter to the creditor (p. 177) :

“Gentlemen: You kindly let L. D. Goldberg, my son, manager for the Goldberg Live Stock Company, make overdrafts in your bank to the amount of $800 to buy live stock with. He has no doubt explained to you that he has always to wait for returns on stock which is all right. Hope you will accommodate him and also me.”

This court found that the document, standing alone, was only an offer to guarantee advances; it did not become binding until it was accepted and notice thereof given to the guarantor. At page 180 of the Miami County Nat. Bank Case, the court cited Acme Mfg. Co. v. Reed (1900), 197 Pa. St. 359, 47 Atl. 205, for the policy behind this rule:

“A guarantor of future credit or advancing is entitled to notice from the party giving the credit of his acceptance of the guaranty, inasmuch as such notice enables the guarantor to know the nature and extent of his liability, to exercise due diligence in guarding himself against losses which might otherwise be unknown to him, and to avail himself of the appropriate means in law and equity to compel the other parties to discharge him from future responsibility. . . . The corporation accepted and filled the order, but gave no notice of the acceptance to the guarantor. Held, that the guarantor was not liable.”

See also McNaughton v. Conklings (1859), 9 Wis. 289 (*316).

This rule followed in Wisconsin and in a number of other states has been questioned and circumscribed. When the guaranty contract is executed contemporaneously with the signing of the primary contract, it would be unsound to require formal notice. In addition, the guarantor may, by his conduct, waive the necessity of notice of acceptance.

The plaintiff has referred the court to several cases which hold that notice of acceptance is not necessary when the guaranties are continuing in nature, as they are considered to be offers which become effective as soon as they are relied on by the creditor. Klatte v. Franklin State Bank (1933), 211 Wis. 613, 248 N. W. 158, 249 N. W. 72; Chicago Lock Co. v. Kirchner (1929), 199 Wis. 30, 225 N. W. 185; International Textbook Co. v. Mabbott (1915), 159 Wis. 423, 150 N. W. 429. However, in each of the foregoing cases (unlike the case at bar) the giving of the guaranty was contemporaneous with the execution of the primary contract; under such circumstances, notice of acceptance would indeed be a formality.

Also, these cases can be distinguished on other grounds. In the International Textbook Co. Case, supra, the court points out, at page 427, that the guarantor expressly waived any notice of acceptance of the guaranty. In the Chicago Lock Co. Case, supra, the guarantor claimed, he never received a formal notice of acceptance, but the court observed that the guarantor had actual knowledge of it from another source. In the Klatte Case, supra, the issue now being considered was not before the court. The main issue there involved the legal effect of a notice by a surety that he intended to terminate his future liability on the contract.

In his treatise on contracts (1 Corbin, Contracts, p. 283, sec. 68), Professor Corbin states :

“It is beyond question that in many thousands of cases an offer to become guarantor for another has been made in such terms as to induce the offeree to advance money, goods, or services on credit without first sending any notice of acceptance to the offeror. Later, when demand is made for him to pay the debt of another in accordance with this promise, the guarantor complains of this lack of notice and asserts that his offer was not accepted as the law requires.”

In 62 Michigan Law Review (1963), 57, there is a comprehensive discussion of Notice Requirements of Guaranty Contracts, by Richard F. Dole, Jr. The cases on all sides of the dispute are analyzed in this article.

Restatement, Security (1941), p. 248, sec. 86, asserts the following rule:

“Where the surety offers to guarantee an extension of credit to the principal and the credit is extended as the sole consideration for the surety’s promise, the contract is complete upon the extension of credit, but if the surety does not know of the extension of credit and has no adequate means of ascertaining with reasonable promptness and certainty that the credit has been extended and the creditor should know this, the contract of the surety is discharged unless within a reasonable time after the extension of credit the creditor exercises reasonable diligence to notify the surety thereof.”

The effect of the Restatement rule is to obviate the need of notice to the surety except in those cases wherein he is either unaware of the extension of credit or does not have adequate means to learn of it; under the Kuhlman Case and other decisions of this state, the emphasis is somewhat different: The guarantor is entitled to notice of acceptance unless there exists some special circumstance excusing it. There may even be contracts of guaranty which, by their special terms or particular circumstances, will require not only an original notice of acceptance but additional notices of acceptance as to subsequent sales or shipments.

The instant case was submitted upon stipulated facts. There is nothing in such facts or in the documentary exhibits that were received in evidence which would relieve the creditor of its responsibility to give notice of acceptance of Mr. Milo Black’s offer to guarantee payment for material purchased by his son. The plaintiff urges that when Mr. Milo Black responded (in Exhibit S) to the creditor’s letter of May 7, 1962, he acknowledged, in effect, that he had never expected to receive notice of acceptance at the time he wrote the original letter. We are unable to derive such meaning from Exhibit 5. Therein Mr. Milo Black wrote:

“I guaranteed his first shipment but that was nearly two years ago.
“I would suggest your reducing your account to your cost and giving him a long term settlement. His intentions are good if given a chance.”

In our opinion, the foregoing language neither demands nor waives acceptance in any degree greater than the original letter of July 30, 1960. Under the authority of A. B. Kuhlman Co. v. Cave, supra, we conclude that Mr. Milo Black was entitled to notice of acceptance, and, in the absence of such notice, he cannot be held liable on the contract.

Notice of Default.

In addition to a notice of acceptance of his offer, a guarantor may also be entitled to notice of a default on the part of the principal debtor. If the time within which a guaranty operates is fixed and if the total amount of the obligation is known, it has been held to be unnecessary to give a notice of default. Estate of Bitker (1947), 251 Wis. 538, 544, 30 N. W. (2d) 449; Farmers State Bank v. Hansen (1921), 174 Wis. 100, 182 N. W. 944; Welch v. Walsh (1901), 177 Mass. 555, 59 N. E. 440.

On the other hand, one who has given an unlimited or open-ended guaranty is entitled to a notice of default within a reasonable time after the default occurs. Douglass v. Reynolds, Byrne & Co. (1833), 32 U. S. 113 (7 Pet.), 8 L. Ed. 626; Taussig v. Reid (1893), 145 Ill. 488, 30 N. E. 1032; Cahuzac & Co. v. Samini (1856), 29 Ala. 288; Rankin & Rankin v. Childs (1846), 9 Mo. 665. See 62 Michigan Law Review (1963), 57, 92-97.

Mr. Milo Black’s letter of guaranty did not expressly limit the time or the amount. The first shipment to Mr. Gerald Black was dated August 29, 1960, and the last shipment February 2, 1962. On October 19, 1961, Mr. Gerald Black had reduced the balance due to his creditor to $32.14. From then until February, 1962, when Mr. Gerald Black went out of business, he appears to have been continuously in arrears, the final balance being $5,193.10. The first notice' of any kind given by the plaintiff to Mr. Milo Black was dated April 18, 1962; then for the first time the plaintiff notified the guarantor of the default.

Although Mr. Milo Black contended in his letter (Exhibit 5) that he had limited his obligation to the “first shipment,” we interpret his original letter of July 30, 1960, as exposing himself to an open-ended obligation. There was only a small default in October, 1961, but it grew to a substantial default of over $5,000 in February, 1962. Since notice of default was not given until April, 1962, it would appear that there had been a delay of at least six months from the time of the first default until the notice thereof.

Because the relationship of the guarantor and the principal debtor was that of father and son, we have carefully examined the record to determine if it discloses a date when Mr. Milo Black may have received actual notice of his son’s default in payments. We are unable to determine any such date of actual notice from this record. Cf. Mamerow v. National Lead Co. (1903), 206 Ill. 626, 69 N. E. 504.

Restatement, Security (1941), p. 368, sec. 136, asserts the following rule:

“Subject to the rules pertaining to negotiable instruments, the surety’s obligation to the creditor is not affected by the creditor’s failure to notify him of the principal’s default unless such notification is required by the terms of the surety’s contract.”

If this rule is applicable, Mr. Milo Black would not have been entitled to notice of default. Restatement, Security (1941), p. 369, sec. 137, further provides :

“Where a surety has guaranteed the collectibility of a principal’s debt, the creditor has the duty of giving the surety reasonable notice of his inability to enforce performance, and if such notice is not given, the surety is discharged to the extent of resulting prejudice.”

Under this rule, there would have to be proof that the delay in giving notice impeded Mr. Milo Black in his ability to obtain reimbursement from his son, the principal debtor. The record is devoid of such proof.

The present cause of action arose prior to the new Uniform Commercial Code, and it has not been contended that its provisions are applicable. However, we note that sec. 3-416 (5) (sec. 403.416 (5), Stats.) provides:

“When words of guaranty are used presentment, notice of dishonor and protest are not necessary to charge the user.”

Our attention has not been called to any Wisconsin case which holds that the failure to give seasonable notice of default to a guarantor is fatal to a creditor’s claim. Not being previously committed to any rule of commercial practice to the contrary, we deem the Restatement rules to represent a more-sound choice of law than that urged by the respondent.

Conclusion.

We conclude that Mr. Milo Black was entitled to receive from the plaintiff notice of acceptance of his guaranty contract and, since such notice was not given, the guarantor cannot be held liable.'

By the Court. — Judgment affirmed.