text:
    Josam Manufacturing Company, Respondent, v. State Board of Health, Appellant.

      February 3 —
    March 2, 1965.

      For the appellant the cause was argued by James H. McDermott, assistant attorney general, with whom on the original brief was George Thompson, attorney general, and on the reply brief was Bronson C. La Toilette, attorney general.
    For the respondent there was a brief by Mount & Keck of Milwaukee, and oral argument by Herbert L. Mount.

   Beilfuss, J.

The defendant-appellant, Board of Health, first contends that the circuit court did not have jurisdiction to determine the facts at issue and that the action should, therefore, be dismissed.

This action for declaratory judgment was commenced in the circuit court for Dane county by summons and complaint pursuant to sec. 227.05, Stats. After preliminary motions concerning the complaint were made and disposed of, the defendant answered the complaint but did not move to have any factual issues referred back to the board for determination. The defendant’s answer admitted that plaintiff had urged the defendant to reconsider its position but that defendant refused to do so.

Sec. 227.05, Stats., provides in part as follows:

“(1) Except as provided in sub. (3) hereof, the exclusive means of judicial review of the validity of a rule shall be an action for declaratory judgment as to the validity of such rule brought in the circuit court for Dane county. . . . The court shall render a declaratory judgment in such action only when it appears from the complaint and the evidence presented in support thereof that the rule or its threatened application interferes with or impairs, or threatens to interfere with or impair, the legal rights and privileges of the plaintiff. A declaratory judgment may be rendered whether or not the plaintiff has first requested thé agency to pass upon the validity of the rule in question.
“(2) Whenever an issue of fact is raised concerning the applicability of a rule to a party or affecting the validity or proper interpretation of a rule, the court shall, before deciding the pertinent legal question, refer the case to the agency for determination of the fact issue under the declaratory puling procedure provided in sec. 227.06.”

Concededly, factual questions encompassed by the statute were at issue.

At the commencement of the trial the following colloquy took place between the court and Mr. McDermott, the assistant attorney general, representing the defendant:

“The Court: I take it, Mr. McDermott, that you are satisfied that the Court has jurisdiction over the subject matter?
“Mr. McDermott: I am. I feel this, your Honor: that this is a cause of action challenging the validity of an administrative rule. There is no doubt in my mind that this Court has jurisdiction under Sec. 227.05 of the statutes, to determine that challenge.”

The case then proceeded to trial. The testimony of several witnesses, many from considerable distance, took about six days. The record is in excess of 700 pages. It was not until the testimony was closed that counsel for the defendant objected to the jurisdiction of the court.

Clearly, the circuit court for Dane county had jurisdiction over the parties and the subject matter. Sec. 227.05 (1), Stats., quoted above, provides that the exclusive means of judicial review of the validity of a rule shall be by action in the circuit court for Dane county, commenced by summons and complaint, and that the board be the party defendant.

The requirement of sub. (2) of sec. 227.05, Stats., that issues of fact be referred to the agency or the board, is a statutory procedural direction which does not divest the court of its substantive jurisdiction. By answering the complaint without objection to the jurisdiction of the court the defendant came within the personal jurisdiction of the court. The statute gave the court subject-matter jurisdiction of the controversy. The defendant was then obligated to object to procedural deficiencies or be deemed to have waived them. It is fundamental that procedural errors in civil matters are waived unless timely objection is made thereto. The defendant cannot sit by without objection to a procedural matter during an expensive and time-consuming trial and then voice objection. An objection timely made could prevent a procedural error.

We conclude that the defendant waived any procedural right it may have had to have issues of fact referred back to the agency.

The principal issue before us on this appeal is — Does the evidence sustain the court’s finding and conclusion that the State Board of Health’s threatened application of secs. H 62.01 (12), 62.03 (1), 62.06 (2), 62.06 (5) (c), and other provisions of the Wisconsin State Plumbing Code, ch. H 62, 2 Wis. Adm. Code, so as to effectually prohibit plaintiff, Josam Manufacturing Company from selling its Ünitron double chair carrier, wall hung, single vent, horizontal type, fitting in the state of Wisconsin interfere with and impair the legal right and privilege of the plaintiff Josam Manufacturing Company to sell a legitimate product and carry on a lawful business, all in violation of the said plaintiff’s constitutional rights and in excess of the statutory authority of the defendant State Board of Health of Wisconsin ?

The pertinent statute involved is as follows:

“145.01 Definitions. (1) Plumbing. In this chapter, ‘plumbing’ means and includes: . . .
“(e) A plumbing and drainage system so designed and vent piping so installed as to keep the air within the system in free circulation and movement, and to prevent with a margin of safety unequal air pressures of such force as might blow, syphon or affect trap seals, or retard the discharge from plumbing fixtures, or permit sewer air to escape into the building.”

2 Wis. Adm. Code sections involved are as follows:

“H 62.01 (12) The house drainage system shall be so designed that there will be an adequate circulation of air in all pipes, no danger of siphonage, aspiration, or forcing of trap seáis under conditions of ordinary use.”
“H 62.03 Fixture unit design basis. (1) Intermittent Flow Fixtures. The fixture unit value and the size of traps, vents, and piping shall be as designated in the following table for any fixture named therein. . . .” (At page 211, 2 Wis. Adm. Code, there appears a chart which provides that “Water Closet, any type” shall have a minimum vent size of two inches.)
“H 62.06 (2) Sise. . . . Not more than two water closets shall be connected to a 3 inch soil stack. . . . Two water closets located back to back shall be connected to a 3 inch soil stack with a 3 x 3 inch double wye and one-eighth bends or similar fittings or fitting. . . .”
“H 62.06 (5) (c) Change in direction. . . . No common pattern double sanitary ‘T’, ‘Y’ or straight through fitting shall be used on either a vertical or horizontal stack or branch, serving wall-hung closet bowls installed back to back. . . .”
“H 62.07 (4) Unit Vent. . . . Where bath rooms, water closets or other fixtures are located on opposite sides of a wall or partition in the same building, or are directly adjacent to each other, such fixtures may have a common soil or waste pipe and vent pipe stack. . . .”

The “To Whom It May Concern” letter of July 3d is considered to be a rule. It was a statement of agency policy of general application. While it arose out of the “Unitron case,” nothing appears to indicate that the policy expressed in the letter is limited to only Josam Unitron fittings. The testimony was that it was lodged against all single vent double chair carrier fittings.

In Frankenthal v. Wisconsin Real Estate Brokers’ Board (1958), 3 Wis. (2d) 249, 253, 88 N. W. (2d) 352, 89 N. W. (2d) 825, we considered a comparable matter thusly:

“We have no hesitancy in holding that the issuance by the board in 1956 of the mimeographed instructions for renewal of real-estate brokers’ licenses, which contained the requirement that all members of a partnership must be licensed as a condition to licensing the partnership, constituted the making of a rule reviewable by the declaratory-relief procedure set forth in sec. 227.05, Stats. The facts [sic] that no hearing was held before adoption, if such hearing was required, and that such rule was not filed and published as prescribed by ch. 227, Stats., are wholly immaterial on the issue of whether the same was so reviewable,”

In deciding the issue we must first determine whether any or all of the agency rules and the statute quoted above apply. If they do apply, then the plaintiff, as to those rules which restrict it, must prove they are unconstitutional.

“Rules, regulations, and general orders enacted by administrative agencies pursuant to the powers delegated to them have the force and effect of law, ...” 2 Am. Jur. (2d), Administrative Law, p. 119, sec. 292.

In State v. Stehlek (1953), 262 Wis. 642, 645, 56 N. W. (2d) 514, this court stated that it is a fundamental principle of statutory construction that a regularly enacted statute, or an order of an administrative body, made pursuant to statutory authority will be presumed constitutional. The burden of proof is beyond a reasonable doubt. In Thomson v. Racine (1943), 242 Wis. 591, 9 N. W. (2d) 91, it was held that commission orders are superior to municipal ordinances, where the two conflict. Commission rules, established within the jurisdiction of a commission, have the effect of. public law. The court said, at page 597: “ ‘. . . the legislative control, either directly or through its designated administrative body, is superior to any conflicting action of the legislative body of the municipality.’ ”

Should the rules be found applicable to plaintiff, it had the duty to prove their unconstitutionality by proof beyond a reasonable doubt. It had to show that there is no reasonable basis upon which the legislature (and hence the Board of Health) could have based its legislation (and hence the rule prohibiting single vented fitttings). See Borden Co. v. Mc Dowell (1959), 8 Wis. (2d) 246, 99 N. W. (2d) 146; Madison v. Chicago, M., St. P. & P. R. Co. (1958), 2 Wis. (2d) 467, 87 N. W. (2d) 251.

A synopsis of the testimony is as follows:

The July 3d letter was issued to all plumbers in Wisconsin. That letter indicated that as a result of tests conducted at the Boys’ Trade and Technical High School in Milwaukee, single vent systems were found to be inadequate and hence not in conformity with Wisconsin law.

At the trial, all references to the Boys’ Technical School tests were excluded on motion of defendant Board of Health on the ground that the fitting used in such test was not sufficiently similar to the Josam Unitron fitting. Counsel for defendant moved to withdraw this testimony upon the advice of a sanitary engineer for the Board of Health and upon the advice of a professor of plumbing theory at Marquette University.

Defendant Board of Health also based its objections to the single vented fittings upon observations of tests conducted at the Michigan City plant of plaintiff. Mr. Koenig, one of defendant’s two witnesses, and a supervisor of the division of plumbing and domestic sanitation of the Board of Health, attended that test. Mr. Koenig does not have the educational qualifications of an engineer. He has been a master plumber since 1958 and has had twenty years experience as an apprentice and journeyman plumber. He concluded that the system was inadequate, that there was crossflow, and excessive loss of water level in the water closet bowls. He claims that toilet paper placed in the water closets was carried from a downstream closet to one located upstream. He also claimed that he observed the reduction of trap seal water levels to unsafe levels. It was his opinion that the venting of the test system was inadequate to equalize the plus or minus pressures.

In rebuttal, Mr. Dwyer, chief engineer of plaintiff, offered conflicting testimony. He was not present at the test observed by Mr. Koenig. He has, however, observed other tests on similar test installations. In reference to Mr. Koenig’s testimony of crossflow of toilet paper, Dwyer testified that it *‘could not have happened.”

The results of other tests using the Unitron or other single vented back-to-back chair carrier fittings were offered in evidence.

At the Marine Plaza building, comparison tests were run between the Unitron system On the eighth floor and the double vent system on the ninth floor. Testimony was offered, also, respecting a system at the St. Croix High School and a test run at the State University of Iowa.

The experts who testified for plaintiff included master plumbers, engineers with training in pneumatics and hydraulics, and the consultant to the National Plumbing Code. One expert was the editor of the National Plumbing Code Handbook and the National Plumbing Code Illustrated.

In addition to Mr. Koenig, a Mr. Litzkow testified for defendant. He is a journeyman plumber. He has no formal training in engineering, although he has taken some night-school courses in that field. He is a state plumbing inspector.

It should be noted that the Marine Plaza and St. Croix installations were not “pure” Unitron systems. Each had an additional vent for each battery of water closets. However, there was expert testimony to the effect that the additional venting had no effect on the performance of the plumbing systems.

The Iowa experiment was testified to by Professor Lund-quist. He is a professor of mechanical engineering. His specialty is in the flow of fluids. His test installation used blowout type water closets because they require more air venting. The Iowa test installation consisted of double vent fittings with a third vent tapped into the top center of the fitting. Each of the three vent pipes on the fitting had an on/off valve. Two-inch vent pipes were used. It was argued that the Iowa test is not similar because it did not use a similar fitting. However, on cross-examination, no testimony was elicited as to how the fittings differed in substance from the Unitron when the Iowa fittings were used in their single vent configuration. Professor Lundquist said, respecting the sufficiency of the single vent system: “Well, we actually found that, by the use of a single vent in the middle at the center of the fitting — oh, not every fitting but every other fitting — that we got adequate performance of the toilet system. . . . Our conclusions were that the system operated as satisfactorily with the single vent in the middle as it did with the double vent.”

All of the performance tests described at trial were “maximum severity” tests — simultaneous flushings of a battery of water closets. Such a test, of course, produces the greatest demands on a plumbing system. In none of the four tests was there a complete failure of the system. Results varied, with the Marine Plaza being the test installation showing the least effects of simultaneous flushing. On the other hand, the tests conducted at St. Croix showed this system to be the least satisfactory. There was a substantial drop in water levels, although trap seals were never completely pulled. Mr. Dwyer, on rebuttal, attempted to explain the results. Contrary to the method used by the Board of Health when it conducted tests at St. Croix, Dwyer connected measuring devices to register what was occurring within the pipes. He measured the water pressure at the washrooms at 85-86 pounds per square inch. He testified that this was quite high, the normal pressure being about 60 pounds per square inch. It meant that the automatic flush valves had a shorter cycle and less water would be available to refill the water closet bowls. He installed manometers in the vent pipes to measure the system air pressure. There was no negative pressure in the lines. On/off valves were inserted in the vent pipes (although no valve was installed in the four-inch vent pipe, a point stressed by defendant). With all vent pipes closed (except the four-inch pipe), no appreciable difference in performance resulted during a simultaneous flushing of the water closets. This was explained because there was so much water in the waste line that it backed up to the water closets. Dwyer testified that larger vents would not improve the system, but that the system was adequate under conditions of normal usage, with a margin of safety. The gist of his testimony was that the performance problems under conditions of maximum severity were not attributable to the venting. The trial court asked Dwyer if the four-inch vent and each single chair fitting had a two-inch vent, what the results would be. Dwyer said that, “The level in the water closet bowls would still have dropped.”

In summary, it should be noted that all plaintiff’s expert witnesses testified that a two-inch single vent system on a double chair' carrier fitting would operate efficiently under conditions of normal usage, with a margin of safety. Note further, that it is undisputed that in normal operations, no complaints have been registered by the owners of the Marine Plaza or the St. Croix High School.

The trial court found that the Unitron complies with the requirements of sec. 145.01 (1) (e), Stats., and sec. H 62.01 (12), 2 Wis. Adm. Code, and that the threatened application of secs. H 62.01 (12), 62.03 (1), 62.06 (2), and 62.06 (5) (c), 2 Wis. Adm. Code, imposed an unconstitutional limitation upon plaintiff’s right to sell a legitimate product and carry on a lawful business.

We agree that sec. 145.01 (1) (e), Stats., and sec. H 62.01 (12), 2 Wis. Adm. Code, apply, and that Unitron does meet the requirements of performance required by this statute and rule.

The question then remains as to whether the other provisions of the Wisconsin Administrative Code, ch. H 62, apply to the Unitron. Because the facts are before this court, a question of law is presented. Of course, great weight should be given to an administrative-agency interpretation and application of its own rules — unless plainly erroneous or inconsistent with the regulations so'interpreted. State ex rel. Durando v. State Athletic Comm. (1956), 272 Wis. 191, 75 N. W. (2d) 451. Further, the power of an agency to make rules must exist within the framework of the statute creating the agency. A rule must be in accord with the statutory policy, State ex rel. Baranowski v. Koszewski (1947), 251 Wis. 383, 29 N. W. (2d) 764, said policy in the present case being expressed in sec. 145.01 (1) (e), Stats.

Sec. H 62.07 (4), 2 Wis. Adm. Code, permits back-to-back installations of water closets. It further provides that such unit may have a common vent. Sec. H 62.06 (2) in respect to back-to-back installations, requires a three-inch soil stack. Thus, that section is not applicable. Sec. H 62.06 (5) (c), prohibits common pattern double sanitary “T,” “Y,” or straight through fittings for use on a vertical or horizontal stack for wall hung water closets. It is submitted that the Unitron is not such a fitting. There was testimony which showed that the Unitron is unlike the fittings referred to in sec. H 62.06 (5) (c) because of the nature of its internal baffling. Baffling directs the flow of waste and prevents crossflow — the claimed presence of crossflow constituting one of Mr. Koenig’s objections to the Unitron. Koenig further testified that sec. H 62:06 ( 5) (c) refers to the double chair carrier fitting. He said: “Q. Well, a double chair carrier fitting by design replaces any such thing as a wye or straight through fitting, doesn’t it? A. It takes the place of that type of fitting, yes, sir.” Mr. Manas, a professional engineer, master plumber, and editor of the Na-, tional Plumbing Code Handbook and National Plumbing Code Illustrated, and a consultant in the development of the Unitron, testified that the sanitary “T,” “Y,” or cross is not comparable to the Unitron fitting. The Unitron has different baffling. There is no danger of crossflow. Venting has no relation to crossflow.

It would seem fair to state that sec. H 62.06, 2 Wis. Adm. Code, does not apply to the Unitron. Because the Unitron meets the requirements of sec. 145.01 (1) (e), Stats., and sec. H 62.01 (12), 2 Wis. Adm. Code, rules inconsistent with the legislative standard of performance (sec. 145.01 (1) (e) ) must fall by the wayside.

Sec. H 62.03 (1) is the only section which might be applicable on its face. The defendant argues that that rule requires two two-inch vents, or that other code provisions require a single three-inch vent. The code was enacted prior to the creation of the Unitron fitting. It would seem that the code just does not contemplate a Unitron type of fitting. The entire code does not seem to reflect the use of an internally baffled “T” shaped fitting which would function with only a single vent. Note Mr. Manas’ testimony, supra, that venting is not related to the question of crossflow, which is the function of the internal baffles to prevent.

Assuming that the administrative rules prohibit the use of the Unitron type of fitting, in light of the record such requirement is constitutionally void.

There is no question that proper sanitation is a matter of public concern. Police power extends to the field of public health. Rust v. State Board of Dental Examiners (1934), 216 Wis. 127, 256 N. W. 919; Milwaukee v. Kaun (1931), 204 Wis. 103, 235 N. W. 551; State ex rel. Hickey v. Levitan (1926), 190 Wis. 646, 210 N. W. 111.

Our inquiry must therefore be directed to whether or not the requirement of the Board of Health bears any reasonable relation to public health. 16 C. J. S., Constitutional Law, pp. 968, 969, sec. 198; Caledonia v. Racine Limestone Co. (1954), 266 Wis. 475, 63 N. W. (2d) 697; State ex rel. Carter v. Harper (1923), 182 Wis. 148, 196 N. W. 451; John F. Jelke Co. v. Emery (1927), 193 Wis. 311, 214 N. W. 369; Mehlos v. Milwaukee (1914), 156 Wis. 591, 146 N. W. 882; State v. Withrow (1938), 228 Wis. 404, 280 N. W. 364. Plaintiff must show by proof beyond a reasonable doubt that the rules do not bear any reasonable relationship to the public’s interest in its public health.

An agency rule cannot stand on nonexistent footings. What are those footings in the instant case? The test referred to in the letter of July 3, 1961, was, by the board’s own admission, not relevant. Thus, in the letter, when the board says that in light of tests conducted it found single vent systems inadequate, there is no basis for such statement in reference to a Unitron type fitting. Next, the board placed great reliance on the observations of its Mr. Koenig and what he saw at Josam’s Michigan City tests. However, Koenig’s testimony was squarely controverted by Mr. Dwyer. Further, all the experts with professional training stated that a Unitron type fitting and system would operate satisfactorily with a margin of safety under conditions of ordinary use.

Mr. Manas testified that the extra venting in the Marine Plaza installation added nothing; it merely vented the vent. He said: “You have all the air necessary to equalize your pressures within the horizontal.” Mr. Dwyer testified that he feels “that the single-vent Unitron fitting will most satisfactorily allow air to circulate within a plumbing system to prevent trap-seal disturbance,” when installed in an array of eight back-to-back water closets. On cross-examination he was asked the following questions and gave the following answers: “Will the additional venting in the.Marine Plaza system, as to which you testified yesterday, will it help in preventing the building up of plus or minus pressures in the plumbing system for the Marine Plaza Building at Milwaukee? A. No, sir. Q. You say flatly it will not? A. No, sir.”

Mr. Beaudry, a consulting engineer, familiar with hydraulics and pneumatic pressures, testified as to his opinion of the Marine Plaza installation. He said, “In conclusion we can safely state that, as far as maintaining a sanitary condition and operating in a normal manner, the single vented back-to-back carrier certainly was capable of doing its job. ... It is our personal opinion that the dual vent carrier can do no better than the single vent carrier as far as maintaining a safe sanitary condition for these fixtures.”

Mr. Eaton, a private consulting engineer with thirty years experience in experimental and theoretical studies at the National Bureau of Standards, testified that the probability of simultaneous flushing of all nine water closets at the Marine Plaza is one chance in a hundred billion. In congested places, such as barracks, one would experience twice the frequency of use. He considers the Marine Plaza installation adequate. Respecting double vented fittings, he said that it would give a little more capacity, but that it would not double it. On cross-examination, he testified that the average frequency of use must be known before one can compute the probability of use. He has not made specific studies of the frequency of use in office buildings. On redirect, he testified that it was his opinion that the Marine Plaza installation without the additional venting was sufficient with a margin of safety.

It must be remembered that the standard of performance is to be judged under conditions of ordinary use and not under these maximum severity tests. These latter tests really serve only as a guide to the overall sufficiency of the systems, with a margin of safety, under normal conditions.

Can it be said that the Board of Health rules bear a reasonable relationship to the requirements for sufficient standards of plumbing installations ? Consider the following cases. In Mehlos v. Milwaukee, supra, it is said, at page 599:

“There must be reasonable ground for the police interference and also the means adopted must be reasonable for the accomplishment of the purpose in view. So in all cases where the interference affects property and goes beyond what is a reasonable interference with private rights, it offends against the general equality clauses of the constitution, . . .”

And at page 600:

“However, given a subject in respect to which there is some reasonable necessity for regulation, fair doubt in respect thereto being resolved in favor of the affirmative, in case of the legislature having so determined, the degree of exigency is a matter wholly for its cognizance.”

On this state of the record, no “fair doubt” exists as to public necessity requiring its water closets to have two vent orifices and pipes where such water closets are mounted in a back-to-back relationship upon a Unitron type fitting.

In McGraw-Edison Co. v. Sewerage Comm. (1960), 11 Wis. (2d) 46, 52, 104 N. W. (2d) 161, it is said:

“Obviously, the enforcement of a rule which bans plaintiffs’ product in the large and growing Milwaukee metropolitan area would impair the operation and expansion of their business in the future. Prohibition of the use of a suitable and legitimate product certainly interferes with plaintiffs’ right to carry on a lawful business.”

At page 51 the court said;

“But where existing conditions render cast-iron pipe no more, or even less, efficacious in that respect than other pipe materials, it is manifestly arbitrary and unreasonable to require it.”

This court will follow the findings of the trial rourt on the disputed questions of fact unless the evidence has been wrongly received, or unless against the preponderance of the evidence. Will of Heymann (1926), 190 Wis. 97, 208 N. W. 913. There has been no error, the evidence far exceeds that for proof beyond a reasonable doubt. The trial court in its memorandum opinion said, “Plaintiff has established its position with solid affirmative proof that convinces us beyond a reasonable doubt of the merit of its position.”

The regulations of the Plumbing Code referred to specifically herein and relied upon by the defendant are not prohibitive of the use and installation of the plaintiff’s double chair carrier Unitron fittings and similar fittings in the state of Wisconsin, and the several pronouncements, bulletins, and interpretations of the employees and agents of the defendant are construed to be invalid, void, and of no legal effect as to the plaintiff’s said plumbing fittings.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.

       See also Barry Laboratories, Inc., v. State Board of Pharmacy, Ante, p. 505, 132 N. W. (2d) 833.

       It should be noted that in reference to “upstream” and “downstream” locations, that the horizontally located sewage pipe which interconnects a row of water closet fittings is installed with a built-in, predetermined amount of pitch or slope to it. This facilitates the flow of sewage in the system.


source: Caselaw Access Project

author: Hallows, J. Per Curiam

license: Public Domain

text:
    Bump, Appellant, v. Dahl and others, Respondents.

      February 3 —
    March 2, 1965.

      For the appellant there were briefs by Geisler & Kay and Robert J. Kay, all of Madison, and oral argument by Robert J. Kay.

    For the respondents there was a brief by Stephens, Bieberstein, Cooper, Bruemmer & Gartzke and Paul C. Gartzke, all of Madison, and oral argument by Paul C. Gartzke.

       Motion for rehearing denied, without costs, on May 18, 1965.

   Hallows, J.

The issue presented on this appeal is whether the possession of Bump was constructive notice to the Dahls of his equitable interest in the triangular piece of land. In the trial court’s view, Bump’s possession was not of such a nature as to require the Dahls to make an inquiry because the subdivision was new and consisted of irregular and contoured large lots; the shape of the lots would require a survey or the seller to point out the lot lines, the lot was purchased not from the owner but through a real-estate agency, the plaintiff did not advise the Dahls of his rights, and lastly, the possession of the triangular piece of land gave no reason for the Dahls to believe that any part of the lot they were purchasing was a part of the landscaped land visibly identified as Bump’s property.

There is no dispute Bump was in possession of the disputed triangle which had been landscaped, used, and incorporated into lot 38 as a part thereof and'visibly was no part of the property the Dahls were purchasing. It is well established, possession of land is constructive notice and is sufficient to put the purchaser on his guard of whatever rights the possessor may have in the land if such possession is visible, open, clear, full, notorious, unequivocal, unambiguous, inconsistent with, or adverse to the title or interest of the vendor. Ubbink v. Herbert A. Nieman & Co. (1953), 265 Wis. 442, 62 N. W. (2d) 8; Brinkman v. Jones (1878), 44 Wis. 498; 55 Am. Jur., Vendor and Purchaser, p. 1090, sec. 716, and p. 1087, sec. 712. Such possession is considered constructive notice of the rights of the possessor, whether the possession is used for the purpose of charging a purchaser with notice of an outstanding equity or of an unrecorded conveyance and thereby defeating any claim under sec. 235.49, Stats. State v. Jewell (1947), 250 Wis. 165, 26 N. W. (2d) 825, 28 N. W. (2d) 314; Miller v. Green (1953), 264 Wis. 159, 58 N. W. (2d) 704; 8 Thompson, Real Property (1963 Replacement), p. 485, sec. 4331.

It is claimed sec. 235.49, Stats., has no application because the alleged rights of Bump are based on an oral contract and not on a written conveyance as defined in sec. 235.50. For the scope and applicability of sec. 235.49 as a Notice-Race type recording statute, see Commentary in 27 W. S. A., p. 285, ch. 235. Whether this case is decided under sec. 235.49 as the trial court did or outside of it as the parties now urge us to do, the result will be the same. At common law the rule “first in time, first in right” prevailed, qualified by the doctrine of bona fide purchaser. Likewise, sec. 235.49 grants no priority to him who first records if at the time of conveyance he is not a purchaser in good faith. Purchasers in good faith are purchasers without notice of existing rights in the land.

No claim is made Dahls had actual notice. But the claim is made they took title to lot 39 subject to the rights of Bump in the triangle because they were purchasers with constructive notice. Constructive notice arises when a purchaser without knowledge is subjected on grounds of public policy to the liabilities he would be subject to had he in fact had knowledge, because he was in such a position that if he had exercised a reasonable degree of care in availing himself of the avenues of information open to him he could have acquired the knowledge. See Uhrman v. Cutler-Hammer, Inc. (1957), 2 Wis. (2d) 71, 85 N. W. (2d) 772.

Dahls argue that because this is a suit in equity for specific performance it must be decided on general equitable principles and under such principles Bump should be estopped from claiming title because he did not inform Dahls of his claim and his possession was not constructive notice because it was deceptive. Estoppel has not been pleaded by the Dahls and cannot be now raised as a defense. Schneck v. Mutual Service Casualty Ins. Co. (1963), 18 Wis. (2d) 566, 119 N. W. (2d) 342. Nor do we find any basis for. an estoppel. Dahl did not purchase relying on any action of Bump. Clark v. Moru (1963), 19 Wis. (2d) 503, 120 N. W. (2d) 888. The doctrine of constructive notice by possession also rests on equitable considerations and principles and requires a reasonable inquiry to be made of him in possession, not his voluntary disclosure of his rights prior to inquiry.

Bump’s possession was so open and notorious and unambiguous as to be notice to all the world of the land he claimed. Although the subdivision was new and the lots irregular and contoured, such facts do not lessen the duty to discover actual possession. Nor does the fact the lots were purchased through a real-estate agency or that Dahl did not concern himself with the precise boundaries of the lot he was purchasing make the doctrine inapplicable. Apparently the Dahls made no inquiry as to the exact lot line because they were satisfied with this visual observation of what appeared to be the boundaries. The possession of the plaintiff of the triangular piece of land as an encroachment did not impress itself on the mind of Dahl because Dahl did not know or ascertain where the surveyed lot line of lot 39 as platted was. Dahl paced off the depth-of the lot; he noticed the lot line on the plat map did not correspond with what appeared to be the physical lot line, but he made no inquiry of the location of the boundaries of the lot on the surface of the earth.

Whether or not there are customarily encroachments in new subdivisions does not change the application of the doctrine-of constructive notice. We do not have one rule for new subdivisions and another for the old. Disregarding encroachments, large or small, or possession because of the belief they are innocent or not the indicia of claims is done at one’s peril. The inconvenience and cost of having the land surveyed to insure that the boundaries as described in the instrument of conveyance are the boundaries which exist in fact may be an indispensable necessity.

A purchaser of land has three sources of information which he should consult to learn of rights to the land he is about to purchase: (1) The records in the office of the register of deeds where the basic rights inyolved are recorded; (2) other public records to discover rights which usually are not recorded in the office of the register of deeds, i.e., judgments and liens; and (3) the land itself, to discover by observation the rights which arise outside of the recording system by virtue of possession or use. On the problem generally, see Van Alstyne, Land Transfer and Recording in Wisconsin, 1955 Wisconsin Law Review, p. 223. Under the recording acts a conclusive presumption arises that a purchaser knows every conveyance of property recorded which affects the title to the property, whether or not the purchaser examines the public records. Kidder v. Pueschner (1933), 211 Wis. 19, 247 N. W. 315; Fallass v. Pierce (1872), 30 Wis. 443. Likewise, the purchaser is chargeable with knowledge of the location of the boundaries of the land he is purchasing as against third persons. Actual notice or knowledge of possession is not necessary for constructive notice of the possessive rights; otherwise, failure to view the premises would defeat notice by possession because one was a nonresident or for any other reason. 5 Tiffany, Real Property (3d ed), p. 58, sec. 1287; 55 Am. Jur., Vendor and Purchaser, p. 1088, sec. 713.

Under the doctrine, the purchaser is charged with notice of all of the rights of the possessor and of all the facts connected therewith which a reasonable inquiry of the one in possession would disclose. The apt language of Frame v. Frame (1889), 32 W. Va. 463, 478, 9 S. E. 901, 5 L. R. A. 323, to the effect the earth is a “universal manuscript, open to the eyes of all” and therefore when “a man proposes to buy or deal with realty, his first duty is to read [the] public manuscript,” has been quoted with approval in Pippin v. Richards (1911), 146 Wis. 69, 130 N. W. 872, and in Miller v. Green, supra.

Dahls’ argument is basically that they need only rely on the first two sources of information and should be excused from the onerous performance of the third. They argue strenuously that the odd shape of the lot would require, a survey or require them to have the seller point out the exact lot lines because the boundaries are not easily determined by observation. In the instant case no survey was necessary as each lot was surveyed when platted and iron stakes set. Dahl needed only to ask the seller or the seller’s agent to point out the stakes or to attempt to find them himself. A real-estate agent should know and be able to point out exactly the property he is selling. Dahl testified he could have found the stakes but did not look for them. Thus if Dahl had made a reasonable investigation of the lot which he was purchasing, he would have discovered that the east corner stake of the lot was 35 feet southeast of what appeared to be the corner of his lot. Because he made no such investigation and made no inquiries he did not discover or know the triangle in the possession of the plaintiff was within lot 39 as platted and staked.

The real complaint is not that Bump’s possession was not sufficient to give notice, but it was so adequate as to be deceiving to Dahl. But this alleged deception arises out of Dahl’s failure to know the boundaries of the lot he was buying. In Miller v. Green, supra, we said possession sufficient to constitute constructive notice is similar to that required for adverse possession. The grading, sodding, planting, landscaping of the triangle and using it for its natural purpose indicated an appropriation for Bump’s benefit and is such possession as requires the application of the doctrine of constructive notice. Burkhardt v. Smith (1962), 17 Wis. (2d) 132, 115 N. W. (2d) 540. The Dahls therefore bought lot 39 with notice of the rights of Bump in the triangle and must convey the triangle (the legal description of which is set out in the findings of fact No. 9 of the trial court) to Bump in the same manner and extent as Haley would have been liable to do had he not conveyed to Dahls. Saros v. Carlson (1943), 244 Wis. 84, 11 N. W. (2d) 676.

The judgment dismissing the complaint against the Dahls must be reversed, and since Bump is entitled to a conveyance of the triangular piece of land from the Dahls, that part of the judgment against Haley for $944 in lieu of specific performance must be set aside. It is immaterial on this issue that part of the judgment was not appealed. The rights of Dahl against Haley for breach of warranty and for failing to disclose his agreement with Bump are not before us on this appeal.

By the Court. — That part of the judgment dismissing the complaint against defendants Leslie H. Dáhl, Edna Dahl and Carl Dahl is reversed, with instructions to enter a judgment requiring the Dahls to convey to the plaintiff Marvin V. Bump that part of lot 39 constituting the triangular piece of land described in finding of fact No. 9 of the trial court, and setting aside that part of the judgment allowing recovery of damages by the plaintiff against the defendant Merrill Haley.

The following memorandum was filed May, 18, 1965.

Per Curiam

(on motion for rehearing). On our original hearing of this case, we reversed the trial court’s nonsuit of the plaintiff’s case and ordered judgment for the plaintiff. The defendants now move for rehearing on two grounds, one, that the agreement between Bump and Haley was in any event ineffective since plat restrictions allowed further division of the platted lots only after approval by the architectural control committee. This point was not effectively raised by the pleadings, nor was it argued in the principal appeal, and in accordance with our well-defined rules applicable on rehearing, we do not consider this point to properly be at issue now.

The second point that the defendants argue is that since nonsuit was granted after the close of the plaintiff’s case, the entry of judgment now would effectively deprive the defendants of their right to be. heard. Ordinarily we would remand for further evidence. However, the record shows that the defendants have had an opportunity to testify in regard to the only matter we consider relevant on this appeal. Their testimony clearly shows and the facts admitted by them make ■ it apparent that they did have constructive notice of Bump’s possession of the disputed property. No additional testimony that the defendants propose to offer could affect the court’s detérmination on this crucial point. Accordingly, the opinion stands without modification, and the motion for rehearing is denied without costs.


author: Heffernan, J.

text:
    Wilcox, Appellant, v. Wilcox and another, Respondents.

      November 27, 1964 —
    March 5, 1965.

      For the appellant there was a brief and oral argument by John T. Howard of Sun Prairie.
    For the respondents there was a brief by Ah erg, Bell, Blake &. Metzner of Madison, and oral argument by Carroll Metzner.

   Heffernan, J.

The facts present a question susceptible to a quick, easy, and long-accepted answer: That the law of the place of the tort or injury determines the law td be applied to the case. After long and earnest consideration of the problem, we reject that answer and conclude that the law to be applied in this case on the demurrer is the law of Wisconsin and, accordingly, reverse the trial court and overrule the demurrer.

The problem is an old one. Courts have been seeking for many years to resolve equitably, and with some degree of certainty, the law determining rights of the parties when the wrong has been committed in a country or state outside of the forum.

“The courts of this country came to pass on the question of the law which determined the rights of the parties in case of a foreign tort, long before the automobile days; in fact, quite a while before the horse and buggy days. They took a position which was much simpler than the position which the English courts took later'; and they held that the law of the place where the tort took place was the law which fixed the rights of the parties.”

However, Wisconsin was out of step' with the nation generally, for as late as 1875 in Anderson v. Milwaukee & St. P. R. Co. (1875), 37 Wis. 321, 322, this court said:

. a personal action, for personal injury [is] governed by the lex fori. This is almost too familiar a principle for discussion or authority.”

However, our court in Bain v. Northern Pacific R. Co. (1904), 120 Wis. 412, 417, 98 N. W. 241, overruled Anderson, saying that it was,

. . out of harmony with all decided cases in its reasoning, . . . [and] opposed to the most elementary principles of law . .

As the court in Bain overruled the chain of cases that preceded it, we now overrule Bain and the cases subsequent to it that hold that the proper choice-of-law rule invariably is lex loci delicti.

We believe that this will permit a reasonable and flexible approach that will allow the use of lex loci delicti, lex fori, or a combination of the two or the law of a third state if it is in the interests of sound legal administration and justice to do so. Instead of the rigidly applied rule of lex loci, we adopt a flexible but, we believe, a practical and workable principle to be used in solving “choice-of-law” problems.

The rule that we abandon has long been in disfavor with those who felt that it failed to give due consideration to the jurisprudential facts of life of the mid-twentieth century. Almost twenty-five years ago, Professor William Herbert Page in referring to the lex loci rule stated:

“The law of the ox-cart and sailing-vessel days has thus persisted through the horse-and-buggy days, into the railroad and street car days, and thence on into the automobile days.”

However, the mere fact that a rule, is old does not make it bad. In fact, its antiquity is compelling evidence that it must have been reasonably satisfactory, and the rule, though old, should be retained if it continues to serve its purpose. We need, however, only to cite a few examples to see that the application of the rule of lex loci has on occasions produced absurd and unjust results. Consider the case of Walton v. Arabian American Oil Co. (2d Cir. 1956), 233 Fed. (2d) 541, in which an American citizen employed in Arabia was there injured as the result of the negligent operation of an automobile owned by an American corporation and operated by one of its employees. Suit was brought in an American court. That court held that the law that must be applied is the lex loci, the law of Saudi Arabia. Though under the laws of either the plaintiff’s domicile or the forum, a cause of action was spelled out, the court directed a verdict for the defendant because it could not be shown that a cause of action existed under the laws of Saudi Arabia. The rule of lex loci may, and will frequently, produce a reasonable result. It did not in that case, and we reject the rule in its Draconic application.

The rules of stare decisis attempt to give certainty to our law, so conduct can be planned in light of foreseeable legal consequences. Certainty, however, is less relevant in the law of unintentional torts, where conduct is not planned, than in the law of contracts or, more particularly, in the law of real property. In any event, the rule of lex loci has not produced certainty of result. From the earliest days, hard cases have produced deviations from the rule. New York at an early date refused to hear cases based on foreign, law where the result would be contrary to the public policy of that state. Gardner v. Thomas (N. Y. 1817), 14 Johnson’s Reports 134. It thus appears that lex loci frequently is not applied where the policy of the forum state is offended, or the conscience of the forum court is shocked. The original Restatement, Conflict of Laws, recognized this fact:

“No action can be maintained upon a cause of action created in another state the enforcement of which is contrary to the strong public policy of the forum.”
“The lex loci delicti rule leads to uniform treatment of a cause of action only to the extent that none of the possible forums has a strong public policy which would require a different result.”

Haumschild v. Continental Casualty Co. (1959), 7 Wis. (2d) 130, 95 N. W. (2d) 814, is an example of this type of exoneration from an unrealistically rigid rule. We there chose to obviate the public-policy conflicts between the law of Wisconsin and the law of California by holding that the question of interspousal immunity was a question of family law and not of tort law. Nevertheless, we said there, at page 138:

“. , . this court should adopt the rule that, whenever the courts of this state are confronted with á conflict-of-laws problem as to which law governs the capacity of one spouse to sue the other in tort, the law to be appiied is that of the state of domicile.”

We therein quoted with approval from Koplik v. C. P. Trucking Corp. (1958), 27 N. J. 1, 141 Atl. (2d) 34, the statement:

“ ‘Otherwise, the lex loci will be permitted to interfere seriously with a status and a policy which the state of residence is primarily interested in maintaining.’ ”

Since the rule of lex loci applied only to matters of substance and not of procedure, courts have, when confronted with an undesirable result, labeled the countervailing foreign law “procedural,” thus giving lip service to lex loci, but obtaining the desired policy result. Grant v. McAuliffe (1953), 41 Cal. (2d) 859, 264 Pac. (2d) 944.

Bridges and Segal summarized court experience with the present rule: '

. . courts . . . seek ways to escape such absurd results, and in practice various devices have been utilized to that end. Courts have resorted to characterization of the action as one of contract rather than tort or one involving matters of procedure rather than substance in order to apply the lex fori or another law which permits a just result. The place of wrong has been localized in a state with a favorable law and resort has been made to the doctrine of renvoi in order to apply a law other than that of the place of harm. Public policy has been held to require application of the lex fori, as has failure to plead and prove the law of the place of harm.”

It appears therefore that lex loci has not provided a “fixed star,” but rather has been merely a point of departure in hard cases. Willis Reese summarized the predicament of the courts on the predictability phase of the rule of lex loci:

“.. . . although predictability of result is important to the extent that it facilitates the lawyer’s task in advising his client and negotiating a settlement, it is not an all-important value in torts since this is an area where persons will rarely, if ever, give advanced thought to the legal consequences of their actions. In any event, continued adherence to a bad rule is á high price to pay for predictability. Furthermore, it is doubtful whether a bad rule will provide predictability since the courts will be inclined to engraft exceptions upon it.”

It seems apparent that the rule as it now exists in Wisconsin has not produced the certainty that stare decisis contemplates. In addition, as we said in Haumschild;

“. . . the rule being discarded is one lying in the field of conflict of laws as applied to torts so that there can hardly have been any action taken by the parties in reliance upon it”

The cases that we overrule are the end product of an adherence to the rules of the Restatement, Conflict of Laws (1934), p. 457, sec. 378, provides:

“The law of the place of the wrong determines whether a person has sustained a legal injury.”

The great weight of authority in this country still follows this rule. Upon a reading of these cases, which on their face offer a deceptively simple solution to a complex problem, we are reminded of the words of Mr. Justice Benjamin N. Cardozo, “. . . it is easier to follow the beaten track than it is to clear another.”

The path, however, has been departed from in recent cases in other jurisdictions. Cases in which courts have done so are Babcock v. Jackson (1963), 12 N. Y. (2d) 473, 240 N. Y. Supp. (2d) 743, 191 N. E. (2d) 279, 95 A. L. R. (2d) 1; Griffith v. United Air Lines, Inc. (1964), 416 Pa. 1, 203 Atl. (2d) 796; and Kilberg v. Northeast Airlines (1961), 9N. Y. (2d) 34, 10 App. Div. (2d) 261, 172 N. E. (2d) 526; Gianni v. Fort Wayne Air Service, Inc. (7th Cir. 1965), 342 Fed. (2d) 621; and Watts v. Pioneer Corn Co., (7th Cir. 1965), 342 Fed. (2d) 617. The authors of these decisions, the latter two written by United States District Judge Kenneth Grubb sitting on the circuit court of appeals, and the writers and commentators have been active in the criticism of the Restatement rule. See Albert A. Ehrenzweig in 69 Yale Law Journal (1960), 595, Guest Statutes in the Conflict of Laws — Towards a Theory of Enterprise Liability under “Foreseeable and Insurable— Laws;” Brainard Currie in 10 Stanford Law Review (1958), 205, Survival of Actions: Adjudications versus Automation in the Conflict of Laws; and Russell J. Wein-traub in 48 Cornell Law Quarterly (1963), 215, A Method for Solving Conflict Problems — Torts.

Many different approaches have been recommended in the area of choice of laws. Brainard Currie advances a governmental interest theory which requires the forum state to apply its law if it has any legitimate policy interest. The lex loci should be applied only if the forum has- no interest. He urges that if the forum state has no legitimate interest and if other states have competing interests, then the law of the forum should govern.

For Professor Ehrenzweig the starting point must be the law of the forum. He takes the view that the basic rule in the conflicts law of torts refers to the lex fori. From this starting point he looks in each situation to the development of a common law of conflicts, based on “consistent judicial practice” to provide exceptions to the basic rule. He envisages that this approach will actually promote application of foreign law and relegate the lex fori to mere analytical primacy because deviations will not occur, in his view, except when “compelling reasons” for such deviations exist. In cases of enterprise liability, Ehrenzweig believes that “ ‘compelling reasons’ exist when the lex fori is not a ‘foreseeable and insurable’ law.”

Weintraub, 48 Cornell Law Quarterly (1963), 215, suggests the following approach in the choice of law. The court must first identify the apparent conflict and determine whether it is in fact real or spurious. If no conflict is found, then the law of the forum should be used. Once a conflict is isolated, Weintraub, in a summary of his position, supra at page 244, suggests that the actor be found liable for' his conduct under the laws of any state whose interest would be advanced significantly by imposing liability, unless the imposition of liability would unfairly surprise the actor. His final step in the analysis suggests that when the policies of the interested or contact states are not applicable to the case before the court, then the forum state should consider arriving at a result that would insulate the result from the selection of the forum, i.e., prevent future actions from being decided merely by the choice of the forum. Weintraub maintains that this last step is the answer to the criticism of “forum shopping” raised by objectors to the choice of law proposals made by writers and commentators.

The Tentative Draft No. 9 of the Restatement, Conflict of Laws, (2d) p. 3, sec. 379, now provides that, “the local law of the state which has the most-significant relationship with the occurrence and with, the parties determines” the rights and liabilities of the parties. The Draft then lists the contacts that determine “the state of most-significant relationship.” These are: Place of the injury; the place of the conduct; the domicile, nationality, place of incorporation and place' of business of the parties; and the place where the relationship of the parties is centered. Sec. 379a provides

“In an action for a personal injury, the local law of the state where the injury occurred determines the rights and liabilities of the parties, unless some other state has a more significant relationship with the occurrence and the parties as to the particulár issue involved, in which event the local law of the latter state will govern.”

Other jurisdictions have recently rejected the lex loci rule. New York, on facts similar to those before us, has applied its law tó . a one-car accident in Ontario where the litigants were New York residents, the insurance company did business in New York, and the parties were on a trip that began and ended in New York. The New York law allowed a suit in ordinary negligence, while Ontario law prohibited all host-guest liability.

Minnesota refused to follow the lex loci rule where the accident occurred in Wisconsin between Minnesota residents and the conduct (salé of liquor to an intoxicated person) took place in Minnesota. Minnesota holds the seller of liquor responsible under a dram-shop act, while Wisconsin does not.

Pennsylvania has refused to apply a Colorado limitation in a survival action by the executor of the estate of a Pennsylvania resident killed in an airplane crash in. Colorado. Pennsylvania law permits the executor tci recover future earnings after death, but Colorado does not.

New York was also unwilling to limit the recovery in a wrongful-death action to an arbitrary ceiling of $15,000 set by Massachusetts for a fatal aircraft accident in Massachusetts even though the action was brought in New York under the Massachusetts wrongful-death statute. According to the reasoning of the New York court, the limit set by Massachusetts was in conflict with the New York public policy which set no such limit and the court, therefore, would not apply that part of the Massachusetts law.

California has ruled that the law of the place of the accident (Arizona, which does not permit an action for damages against a deceased tort-feasor) would not govern the action by the injured party against the decedent.

All of the commentators and all of the cases that end up in disagreement with the unbending application of lex loci have a common thread that runs through the skein of rationale, and that thread is that >the place of the occurrence of an unintentional tort is fortuitous, and it is by mere happenstance that the lex loci state is concerned at all. The most-dramatic instance of this type of fortuitousness is the case where an airplane is forced off its course and crashes in a state or country that was not on its route.

They are also dismayed that in this day of rapid transportation, whether by land or air, the rights and liabilities of the parties as to each other should vary from hour-to-hour, or indeed minute-to-minute, as state boundaries are crossed. In the case before us the parties, husband and wife,' passed through a number of states on their vacation. There appears to be no reason why the duty of the host to the guest should vary on the basis of factors that are not in anywise related to the public- policy of the state most intimately concerned or associated with a changed relationship between the parties.

We have long shown concern over this petrified approach to conflicts problems. In Haumschild v. Continental Casualty Co., supra, we indicated our dissatisfaction with the “place of wrong” rule that ignores fundamental policies of the state most intimately concerned.

In 1963 in Wojciuk v. United States Rubber Co., 19 Wis. (2d) 224, 235c, 120 N. W. (2d) 47, 121 N. W. (2d) 294, 122 N. W. (2d) 737, footnote 7, we commented on the recent trend toward a less mechanical application- of a choice of law rule.

In Brunke v. Popp (1963), 21 Wis. (2d) 458, 124 N. W. (2d) 642, we referred to Babcock v. Jackson’s resolution of its choice-of-law problem on the basis of the state that had the most-significant relationship. We pointed out that the rule was not applicable in Brunke since Jane Brunke and Fredy Garces were nonresidents.

Our recently adopted Uniform Commercial Code, sec. 401.105, Stats., recognizes an “appropriate relations” test for determining applicable law, and the official Uniform Commercial Code comments refer to a transaction’s “significant contacts” as being factors in the choice of law. This in itself indicates legislative approval of the Restatement rule of “most-significant relationship.”

As foreshadowed by the three cases referred to above, we adopt the general principles of the commentators and result of the cases critical of the lex loci rule in that we believe that in order to determine the “most-significant relationship” consideration should be given to the policies and interests of the forum state, the tort state, and of other states that may have an interest by virtue of the domicile of the parties or other relevant factors. It is obvious that one state may have a legitimate concern with one facet or issue of the case, but not with another, and hence we conclude that it is not necessary in each case to apply only the law of a single state to all phases of the lawsuit, i.e., what is negligence, for example, may well involve the application of the rules of the road of the tort state since it is that state that is primarily concerned with safety on its highways.

However, the degree of negligence {i.e., gross or ordinary) necessary to ensure recovery may be unrelated to the policies of the tort state, but highly relevant to the policy of the forum state and as to that issue the law of the forum would govern.

As set forth in the digest of the facts, we are here concerned with a situation in which the plaintiff and defendants are Wisconsin residents, who were on a trip that commenced in Wisconsin and was intended to end there. The policy of insurance was issued by a Wisconsin domiciled and licensed company, delivered in Wisconsin to afford coverage on an automobile licensed in Wisconsin and usually garaged and operated in Wisconsin.

The law of Wisconsin permits a guest to recover from a host upon the pleading and proof of ordinary negligence. It is the policy of our law to provide compensation to a person when he has been negligently injured. The reasons for this policy are manifold. Among them are that the wrongdoer should bear the cost of an injury because of his causal fault and not the injured party (unless he is equally at fault) or the state authorities or those who have furnished medical services, and that to the extent that damages in a negligence action are punitive, it is hoped that the burden of a judgment may deter like conduct by others.

The law of Nebraska permits a recovery only if the guests plead and prove that the host was guilty of gross negligence. What policy of Nebraska does such a rule of law serve? It would appear that its principal purpose is a negative one. It provides a limitation (in a quantum-of-proof sense) of the right of recovery of the guest from the host. Since Nebraska law permits a greater degree of negligence before imposing civil liability, it is obvious that the purpose of the rule is not to penalize misconduct that amounts to ordinary negligence, hence the application of Nebraska law in the instant case can hardly be said to further the safe use of Nebraska highways. The general purpose of a guest statute of the Nebraska type is said to be for the purpose of preventing the ingratitude of a gratuitous guest who sues his kindly host or for the purpose of limiting the opportunity for collusive host-guest suits, and, in addition with considerable respectable authority, the purpose is said to be the protection of the host and his insurer from judgments.

But to the extent that such is the purpose of the law, it is the Nebraska host and his insurance company that are the objects of thát legal policy. Nebraska policy is not concerned with a suit against a Wisconsin host or a Wisconsin insurer.

All of the parties, including the liability insurer, are domiciled in Wisconsin. None of them can claim surprise upon permitting a suit for ordinary negligence between host and guest. This is the law that in the ordinary course of events would have been applied if the accident had occurred in Wisconsin. That it occurred outside was merely fortuitous, and should not now inure as a windfall to any of the defendants. The policy was issued for a Wisconsin-garaged automobile in contemplation of possible liability under Wisconsin law, and we find that the insurer in this case is bound by his bargain. The law of Wisconsin is the law of the place whose application was “anticipated and insured against.”

Courts are instruments of state policy and it is for the legislature, when it has spoken, subject to the constitution, to determine the legal standards to be applied in allowing recovery in a negligence case. Our legislature has not seen fit to require that a host be grossly negligent for a guest to recover. Where all the policy factors combine in the determination that Wisconsin is the state most intimately and significantly concerned with the disposition of an issue in a lawsuit, it would be contrary to our legislative policy to apply other than Wisconsin law to the issues thus affected.

In putting aside the common law of lex loci, we do so in the belief that the rule contemplated by the current Draft No. 9 of the Restatement of Conflicts, as well as Babcock, supra, and Griffith, supra, will result in a common law of conflicts that will be administered with uniformity as jurisdictions generally adopt this rule. To arrive at such uniformity requires an analysis on a consistent basis so that a similar fact situation will result in a similar determination. We adopt the following analysis.

For the problem of choice of law to arise there must be contact with one or more states. The proposed Draft of the Restatement, (2d), supra, lists contacts that in some cases may be controlling. We conclude that the mere counting of contacts should not be determinative of the law to be applied. It is rather the relevancy of the contact in the terms of policy considerations important to the forum, vis-a-vis, other contact states. We start with the premise that if the forum state is concerned it will not favor the application of a rule of law repugnant to its own policies, and that the law of the forum should presumptively apply unless it becomes clear that non-forum contacts are of the greater significance. In the instant case the facts indicative of the most-significant relationship are that both host and guest are residents of Wisconsin, that the relationship arose in this state, that the insurance was issued here, by a Wisconsin company for a Wisconsin-garaged automobile, and that it is the policy of this state to compensate guests for injuries sustained as the result of the ordinary negligence of their hosts. Wisconsin is concerned because the parties are domiciled here. The policy of Nebraska in the instant case will not be served by applying Nebraska law in regard to the standard of care since the Nebraska contact, the place of the accident, is not relevant to Nebraska’s policy of protecting a Nebraska host from an ungrateful guest or protecting a Nebraska insurance company when all concerned are residents of Wisconsin. In the event this case should go to trial, the fact that the accident did occur in Nebraska might well become a relevant contact insofar as Nebraska’s rules of the road become a factor. Nebraska’s policy is served by enforcing its rules of the road and Wisconsin policy is unaffected. Hence, in this respect, the place of accident may be relevant at trial though not on the present demurrer.

The concern, thérefore, of the courts must not be merely with the contacts quantitatively, but with them qualitatively in light of policy considerations. We therefore conclude that we cannot accept invariably the order of importance that the Tentative Draft No. 9 of the Restatement of Conflicts has assigned to various contacts, although in general we agree with the order of importance assigned. However, the weight depends on their relevancy to the policies of the place of the wrong and the forum. “This rule recognizes the most significant relationship with the occurrence and the parties and important contacts as more properly controlling than ‘wooden applications’ (an expression used by some writers.) of the strict lex loci delicti rule.” Fabricius v. Horgen (Iowa, 1965), 132 N. W. (2d) 410.

Other courts applying a similar reasoning have referred to their solution as a “center of gravity” or a “grouping of contacts.” While these phrases have been labeled as “mere catchwords,” they are, when applied in connection with the case to which they were originally used, meaningful “shorthand” phrases for the expression of the rule that we adopt.

The neat answer of the law of lex loci, by this opinion, takes its place in the netherworld of jurisprudence. It will have its mourners and, for a time, it will be sorely missed, but it is to be expected that on a case-by-case-basis generalizations will soon become apparent and will take its place as a guide to the future to provide a uniform common law of conflicts. It is not to. be expected, however, that this approach will provide the vade mecum for the quick sure answer provided heretofore by lex loci and the theory of vested rights. But the very purpose of this method is to avoid the pat answer that gives a bad result either to be accepted as a sacrifice on the altar of certainty or to be avoided by subterfuge. It is to be hoped that the approach set forth herein will enable courts to face the facts as they exist and to make their determinations on a rational rather than mechanical basis. As Mr. Justice Cardozo stated:

“We shall have to feel our way here as elsewhere in the law. Somewhere between worship of the past and exaltation of the present, the path of safety will be found.”

By the Court. — Order reversed, and cause remanded for further proceediftgs not-inconsistent with this opinion.

       William Herbert Page, Conflict of Law Problems in Automobile- Accidents, 1943 Wisconsin Law Review, 145, 150..

       1943 Wisconsin Law Review, 145, 179, supra.

       In Wisconsin this result would not obtain, because we hold that where the foreign law is unknown, it is presumed to be the same as Wisconsin. See sec. 328.01, Stats., and Harper v. Hartford Accident & Indemnity Co. (1961), 14 Wis. (2d) 500, 111 N. W. (2d) 480.

       Page 731, sec. 612.

       62 Michigan Law Review (1964), 1359.

       7 Wis. (2d) 130, 136, 95 N. W. (2d) 814.

       Comment, 51 California Law Review (1963), 762, 770.

       Comments on Babcock v. Jackson, 63 Columbia Law Review (1963), 1212, 1254.

       7 Wis. (2d) 130, 137, 95 N. W. (2d) 814.

       For a recent compilation of the jurisdictions that apply the lex loci rule, see Anno. 95 A. L. R. (2d) 12.

       Cardozo, The Growth of the Law (1924), page 62.

       In discussing these theories, we do not mean to intimate that we intend to follow any of them in their entirety.

       1959 Duke Law Journal, 171, Notes on Methods and Objectives in the Conflict of Laws.

       Albert A. Ehrenzweig, 69 Yale Law Journal (1960), 595.

       51 California Law Review (1963), 762, 783.

       Sparks, 31 Insurance Counsel Journal (1964), 428, Babcock v. Jackson — A Practicing Attorney’s Reflection Upon the Opinion and Its Implication.

       Sec. 379.

       See 51 California Law Review (1963), 762, The Second Conflicts Restatement of Torts: A Caveat.

        Babcock v. Jackson, supra. See 63 Columbia Law Review (1963), 1212, Comments on Babcock v. Jackson, A Recent Development in Conflict of Laws; 1964 Wisconsin Law Review, 316, Babcock v. Jackson: A Possible Solution to Conflicts Confusion in Wisconsin.

         Schmidt v. Driscoll Hotel Inc. (1957), 249 Minn. 376, 82 N. W. (2d). 365.

        Griffith v. United Air Lines, Inc., supra.

        Kilberg v. Northeast Airlines, Inc., supra.

        Grant v. McAuliffe, supra.

        Carter v. Tillery (Tex. Civ. App. 1953), 257 S. W. (2d) 465.

       Weintraub, 48 Cornell Law Quarterly (1963), 215, 220, 228.

       Ehrenzweig, 69 Yale Law Journal (1960), 595, 603.

         Cardozo, The Nature of the Judicial Process (1921), page 160.


author: Currie, C. J.

text:
    Ritchie, Plaintiff and Respondent, v. Davis, Defendant and Appellant: Cotter and wife, Impleaded Defendants and Respondents: Davis, Executrix, and others, Impleaded Defendants and Appellants.

      February 3 —
    March 2, 1965.

      For the appellants there were briefs by McLeod, Donohue & Colwin of Fond du Lac, and oral argument by Raymond R. Colwin.

    For the respondents there was a brief by Callahan, Arnold & Van Metre of Columbus, and oral argument by Carroll B. Callahan.

   Currie, C. J.

Appellants’ brief states that the sole issue on this appeal is whether the June 7, 1955, deed from Davis to the two Cotters and to Ritchie constituted an irrevocable conveyance or an attempted testamentary disposition. It is appellants’ contention that the delivery to Cotter was as agent for Davis, was revocable, and, therefore, was an ineffective testamentary disposition. The trial .court, however, found it was Davis’ intent at the time of delivery of the deed to Cotter that title then pass to the grantees.

There are many cases which have been decided in this and other jurisdictions involving the delivery of a deed by the grantor to a third person with instructions to deliver it to the grantee or to record it after the death of the grantor. Here, however, we have the unusual circumstance that the person to whom the grantor made the delivery was also named as one of the grantees. We will first consider the problem as if the plaintiff Ritchie had been the sole grantee. It was clearly Davis’ intention that Ritchie should have the hotel property after Davis’ death and the naming of Cotter and his wife as cograntees was merely a device which Davis thought would insure that result.

The general rule is that the deposit of a deed with a third person for delivery to the grantee on the grantor’s death will operate as a valid transfer as of the time of the first delivery, provided the grantor intends irrevocably to vest title in the grantee and surrenders control over the deed. 3 American Law of Property, p. 318, sec. 12.67; 8 Thompson, Real Property (1963 Replacement), p. 50, sec. 4232; 4 Tiffany, Real Property (3d ed.), pp. 246, 247, sec. 1054; 16 Am. Jur., Deeds, pp. 517, 518, sec. 143; Kerchner, Delivery of Deeds to be Effective on Death of Grantor, 43 Dickinson Law Review (1939), 188, 190; and Anno. 52 A. L. R. 1222. Wisconsin cases which have applied this general rule and have found the deed was effective as of the time of delivery to the third person are: Prosser v. Nickolay (1946), 249 Wis. 75, 23 N. W. (2d) 403; Lawrence v. Children's Home & Aid Society (1939), 231 Wis. 44, 285 N. W. 415; Kolber v. Steinhafel (1926), 190 Wis. 468, 209 N. W. 595; Albright v. Albright (1888), 70 Wis. 528, 36 N. W. 254. However, where it is agreed that the third-person custodian is to hold the deed subject to the control of the grantor, title does not pass at the time of deposit with the custodian. Padden v. Padden (1920), 171 Wis. 212, 177 N. W. 22.

In the instant case the instructions given by the grantor, Davis, were not to record the deed until after his death. Other cases in which the grantor’s instructions to the third party to whom the deed was delivered were not to record until after the grantor’s death are: Keating v. Augustine (1932), 213 Iowa 1336, 241 N. W. 429, and Heinecke v. Portus (1941), 299 Mich. 668, 1 N. W. (2d) 32. Both cases held that an irrevocable delivery occurred upon the grantor handing the deed to the third party which inured to the benefit of the grantee. As authority for this holding, the Iowa and Michigan, courts cited cases involving delivery to a third person with instructions not to deliver to the grantee until after the death of the grantor. We likewise have cited authorities dealing with instructions to hold and deliver to the grantee after grantor’s death as being apposite on the issue of delivery presented in the instant case.

The test of whether the deed is effective upon delivery to the third person is not whether the grantor has retained possession or control of the property, but rather, whether he has retained possession or control of the deed. Estate of Hulteen (1951), 170 Kan. 515, 519, 227 Pac. (2d) 112. Therefore, it is immaterial that the grantor continues in possession and control of the conveyed real estate, as did Davis, from the time of delivery of the deed to the third person until the grantor’s death. The deed operates as a conveyance in praesenti although the enjoyment is postponed until the grantor’s death. Hered v. Nemethy (1962), 15 App. Div. (2d) 791, 792, 224 N. Y. Supp. (2d) 723. Some courts hold that the grantor retains an implied reserved life estate in the premises. 3 American Law of Property, p. 318, sec. 12.67, and cases cited in footnote 3; 4 Tiffany, Real Property, p. 247, sec. 1054, and cases cited in footnote 62. It was held in the inheritance-tax case of Estate of Ogden (1932), 209 Wis. 162, 168, 244 N. W. 571, that an effective life estate may be reserved by the grantor by oral agreement even though the deed is absolute on its face and has been delivered to the grantee.

The intention of the grantor at the time he makes the delivery of the deed to the third person controls as to whether the deed is revocable or irrevocable. There are several facts in the instant case which tend to establish that Davis intended an irrevocable conveyance. Nothing was said between Davis and Cotter at the time of the delivery of the deed to Cotter. This in itself is more consistent with an intention that the deed was irrevocable rather than revocable. Davis made no attempt thereafter to revoke the delivery. When the subject of the joint will was discussed between Davis and Cotter, Davis remarked to Cotter, “What she [Mrs. Davis] doesn’t know won’t bother her.” This tends to support the inference that he considered the deed an accomplished fact and not something he could change at will. The inclusion in the deed of the third interest in the tree farm, which Cotter was apparently entitled to receive immediately, shows intent of irrevocable delivery.

Appellants strongly rely upon the statements which Davis made to his friends Hook, Curran, and Carstensen, that Mrs. Davis would receive the hotel after he died. Concededly it is difficult to reconcile these statements with the other facts which point so strongly to the conclusion that the delivery of the deed was irrevocable. However, as noted by the trial court’s memorandum decision, once the deed takes effect as of date of delivery, subsequent conduct or remarks of the grantor cannot operate retroactively to change such effect.

We now turn to the legal significance of Cotter having been named as one of the grantees in the deed. Chaudoir v. Witt (1919, 1920), 170 Wis. 556, 170 N. W. 932, 174 N. W. 925, is directly in point with respect to this aspect of the case. There a grantor, while seriously ill, executed a deed in which his wife joined in conveying a store building in which he and his family lived to one Suelflow, a real-estate and insurance man. Suelflow and his wife then executed a deed to the same property to grantor’s wife. Suelflow, who had possession of both deeds briefly, then delivered both to grantor’s Wife. It was understood between grantor and Suelflow that these two deeds were only to be effective in case grantor died of his then illness and that the deeds were not to be recorded until after grantor’s death. Grantor recovered and lived for thirty-six more years. After his death an action was commenced to set aside the two deeds on the ground that they were testamentary in character and had never been delivered so as to be effective as deeds. This court held that a delivery in escrow or upon condition cannot-be made to a grantee. Mr. Chief Justice Winslow in his opinion stated (at p. 563) :

“No court has more positively or consistently held that there cannot be a conditional delivery of a deed to the grantee himself than this court.”

Likewise in George Williams College v. Williams Bay (1943), 242 Wis. 311, 320, 7 N. W. (2d) 891, this court declared, “Furthermore, as a matter of law there cannot be a conditional delivery of a deed to a grantee; in such a case the delivery becomes absolute.” Delivery of a deed to one of several grantees, in the absence of evidence to the contrary, is generally regarded as a delivery in favor of all grantees. Smith v. Lombard (1927), 201 Cal. 518, 258 Pac. 55; McClugage v. Taylor (1933), 352 Ill. 550, 186 N. E. 145; White v. Hogge (Ky. 1956), 291 S. W. (2d) 22; Schmidt v. Jennings (1960), 359 Mich. 376, 102 N. W. (2d) 589; 16 Am. Jur., Deeds, p. 522, sec. 150; 26 C. J. S., Deeds, p. 707, sec. 49.

It necessarily follows that the judgment of the circuit court must be affirmed. First, the finding that it was the intent of Davis that the delivery of the deed to Cotter was irrevocable is not against the great weight and clear preponderance of the evidence. Secondly, because Cotter was named as a cograntee, there could not be a conditional delivery as to him as a matter of law, and, in the absence of any expressed intention to the contrary, delivery to Cotter was effective as to his cograntee Ritchie.

The fact that Mrs. Davis expended a considerable amount of her own funds in remodeling the hotel makes a strong appeal to our equitable sensibilities as it did the trial court. The trial court suggested the possibility of a cause of action in favor of Mrs. Davis under secs. 275.24 and' 275.25, Stats. There is also the possibility of a cause of action independently of these statutes grounded upon unjust enrichment.

By the Court. — Judgment affirmed.


author: Hallows, J.

text:
    State, Respondent, v. Lampe, Appellant.

      February 4 —
    March 2, 1965.

      For the appellant there were briefs and oral argument by David L. Walther of Milwaukee.
    For the respondent the cause was argued by William A. Plats, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, Hugh R. O’Connell, district attorney of Milwaukee county, and Aladin A. DeBrosso, deputy district attorney.
   Hallows, J.

The defendant does not seek to withdraw his plea of guilty nor does he seek a new trial. He had counsel and by his admittedly voluntary plea of guilty the defendant waived all defenses and non jurisdictional defects except that the information charged no offense. Hawkins v. State, ante, p. 443, 132 N. W. (2d) 545; Anno. 42 A. L. R. (2d) 1013; 14 Am. Jur., Criminal Law, p. 953, sec. 272. By the plea, the defendant admitted the facts charged but not the crime and in this respect a plea of guilty is like a demurrer. Nor has the defendant 'waived his right to question the sufficiency of the information. If the insufficiency is of such a nature that no crime known to law has been alleged the defect is jurisdictional and is not waived by the plea. If, however, in spite of the insufficiency some crime is alleged, then sec. 955.09 (3), Stats., might be operative. This section provides, among other things, that the sufficiency of an information must be raised before trial or be deemed waived. In this case no waiver in either event would result because the requirement of the section has not happened in that there has yet been no trial. The entering of a plea of guilty is not a trial but the waiver thereof. Pulaski v. State (1964), 23 Wis. (2d) 138, 126 N. W. (2d) 625. On this ground Watson v. State (1926), 190 Wis. 245, 208 N. W. 897, cited by the state, may be distinguished because in that case the objection was not raised before the impaneling of the jury. The language in Spoo v. State (1935), 219 Wis. 285, 262 N. W. 696, that a plea of guilty constitutes a waiver under sec. 355.09, Stats. 1935, now sec. 955.09 (3), of a subsequent objection to sufficiency of the information is overruled.

The defendant’s argument goes beyond a technical insufficiency of an information charging the crime and raises the question of whether the information charges any offense. If the defendant is correct that no offense is charged then the court had no jurisdiction tó proceed to judgment. In re Carlson (1922), 176 Wis. 538, 186 N. W. 722.

The defendant contends the information charges no crime because it does not allege the check made by the defendant purported to have been made by another person. Sec. 943.38 (1), Stats., creating the crime of forgery, provides, “Whoever with intent to defraud falsely makes or alters a writing ... so that it purports to have been made by another,” and it is this provision that the defendant claims is not charged in the information. The information alleged that on the 16th day of August, 1963:

“. . . the said defendant, Clayton Ray Lampe, did feloniously with intent to defraud falsely make a certain writing of a kind whereby legal rights and obligations are created and transferred, commonly known as a bank check, of the tenor following, to-wit:

[A photostatic copy of the check was thereto attached]

“so that it falsely purported to have been made by Emery Walker, contrary to sec. 943.38 (1) of the statutes . . . .”

The attached check was dated 8-16-.1963, No. 16, was on a personalized-check form of the First Wisconsin National Bank, Milwaukee, Wisconsin, with the name Emery Walker printed thereon together with the magnetic-account number and other data. The check was made payable to the order of Carol E. Garon for $16.65 and below the printed name Emery Walker was written Emery Walker.

The defendant argues “Emery Walker” was not alleged as another person and could be an alias of the defendant or a fictitious name conjured up at the time the check was written, and if so, the statute was not violated. It is true that under some circumstances the use of a fictitious name or an assumed name may not amount to forgery. However, if a person attempts to pass off the fictitious name as representing a person other than himself, such use would constitute a forgery. It is not necessary that the person purported to have made the instrument be a person in existence or a real person so long as the instrument purports not to be the act of the one altering or making the instrument. Likewise, the use of an assumed name may be a forgery if done for a fraudulent purpose. There are also circumstances under which an assumed name may be used for legitimate purposes and the use would not amount to a forgery. See on this problem Greathouse v. United States (4th Cir. 1948), 170 Fed. (2d) 512; United States v. Greever (D. C., D. C. 1953), 116 Fed. Supp. 755; and State v. Wilson (1929), 168 La. 932, 123 So. 624.

The Anno., Forgery, Use of Fictitious or Assumed Name, 49 A. L. R. (2d) 849, points out a distinction between a broad and narrow definitioii of forgery, characterizing the broad definition in terms of one with intent to defraud who falsely makes or alters an instrument in. writing so that if has such a sufficient appearance of validity or genuineness on its face that it may be used to the prejudice or detriment of another person. The narrow definition differs only in that the falsely made or altered writing appears to be the instrument of a. person other than the one actually making or altering it. To constitute forgery under sec. 943.38 (1), Stats., which seems consistent with the narrow definition of forgery, the information must charge the check made by the defendant purported to have been made by another person. We believe it does.

The information alleges the defendant is Clayton Ray Lampe who signed the name Emery Walker to the check. It alleges the check “falsely purported to have been made by Emery Walker” and was falsely made and with the intent to defraud. The fair meaning of these allegations is that the check was not made by Emery Walker but falsely purported to be made by him'. The ordinary meaning and intent of the language is that Emery Walker is not the same person as the defendant Clayton Ray Lampe. We do not consider it necessary to allege Emery Walker was not a fictitious or an assumed name of the defendant. We believe it is a fair everyday assumption that the use of different names refers to different persons. At least three cases have held that prima facie different names are presumed to refer to different persons. M'Nally v. Mott (1853), 3 Cal. 235; Peckham v. Stewart (1893), 97 Cal. 147, 31 Pac. 928; see also Fox v. Grand Union Tea Co. (Tex. Civ. App. 1951), 236 S. W. (2d) 561.

We hold the information alleges the commission of the crime of forgery.

By the Court. — Judgment affirmed.

       “943.38 Forgery. (1) Whoever with intent to defraud falsely makes or alters a writing or object of any of the following kinds go that it purports to have been made by another, or at another time, or with different provisions, or by authority of one who did not give such authority, may be fined not more than $5,000 or imprisoned, not more than 10 years or both:
      “(a) A writing or object whereby legal rights or obligations are created, terminated or transferred, or any writing commonly relied upon in business or commercial transactions as evidence of debt or property rights; or . .