text:
    Engel, Plaintiff, v. Bindel and others, Defendants: Antczak and others, d/b/a Alois Antczak & Son, Defendants and Appellants: Deschaine and wife, Impleaded Defendants and Respondents.

      April 2

    April 27, 1965.

      For the appellants there was a brief by Gibbs, Roper & Fijield of Milwaukee, and oral argument by Richard S. Gibbs.

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

   Beilfuss, J.

The issue is: Can the impleaded defendants Deschaine be held liable to the defendants Antczak, for any liability the Antczaks may have to the plaintiff, under an implied contract to indemnify ?

It is conceded that there is not an express contract between the Antczaks and the Deschaines whereby the Deschaines agreed to indemnify the Antczaks for any liability the Antczaks might sustain arising by virtue of the work done by the Antczaks for the Deschaines.

The Antczaks disavow that their cross complaint against the Deschaines is based upon a joint tort-feasor relationship.

The contention of the Antczaks is that the door was improperly installed at the direction and insistence of the Deschaines and that the relationship of principal and agent was thus established, and that under the agency theory the principal should indemnify the agent for liability he sustains to third persons arising because they as agents followed the directions of their principal.

The trial court agreed with the Deschaines in their contention that the Workmen’s Compensation Act relieved them of all liability for an injury to an employee other than that provided for the employee in the act and that there can be no indemnification liability without express contract.

The Antczaks cite authority for the general proposition that where an agent is employed and directed by a principal to do an act for the benefit of the principal, the law implies a promise of indemnity by the principal for damages sustained by the agent caused by carrying out the directions of the principal.

The rule and the authorities cited do apply generally to the principal-agent relationship, but here we are dealing with a special and limited situation that requires a limitation of the general rule.

The Deschaines were liable to the plaintiff under the terms of the Workmen’s Compensation Act.

In A. O. Smith Corp. v. Associated Sales & Bag Co. (1962), 16 Wis. (2d) 145, 113 N. W. (2d) 562, the court considered several prior cases and text authorities dealing with employer’s liability to the employee and third-party tort-feasors, and stated at page 149:

“What we have held in these cases is that the sole liability of an employer because of the injury of an employee in the course of his employment, either to the employee or to anyone else, is under the Workmen’s Compensation Law.”

We have, however, recognized that the rule of no liability of the employer over and above that imposed by the Workmen’s Compensation Act does not apply in case of an express agreement for indemnification. See Hintz v. Darling Freight, Inc. (1962), 17 Wis. (2d) 376, 117 N. W. (2d) 271; Huck v. Chicago, St. P., M. & O. R. Co. (1958), 5 Wis. (2d) 124, 92 N. W. (2d) 349.

We are urged to extend the common-law obligation to indemnify to implied contracts as well as express agreements upon the ground that no sound reason appears to distinguish them. After considering the arguments and authorities cited by the Antczaks, we are not persuaded to do so for the reason that we have concluded the legislature intended to limit the liability of the employer in exchange for his absolute liability under the Workmen’s Compensation Act. If the liability of the employer is to be extended beyond the limits intended by the legislature it should not be by a legally implied agreement to indemnify.

The rule as announced is not unduly harsh to the third party. He can, as a prerequisite, insist upon an express indemnity agreement or refrain from doing a prohibited act or an act which he knows or should know might subject him to liability.

By the Court. — Order affirmed.

Fairchild, J., dissents.

       Restatement, 2 Agency (2d), p. 329, sec. 439 ; 2 Am. Jur., Agency, p. 231, sec. 294; State v. Yellow Baggage & Transfer Co. (1933), 211 Wis. 391, 396, 247 N. W. 310.

        Albert v. Regal Ware (1959), 6 Wis. (2d) 519, 95 N. W. (2d) 240; Beck v. Hamann (1953), 263 Wis. 131, 56 N. W. (2d) 837;
        Guse v. A. O. Smith Corp. (1952), 260 Wis. 403, 51 N. W. (2d) 24; State v. Maas (1944), 246 Wis. 159, 16 N. W. (2d) 406; City of Milwaukee v. Milwaukee County (1940), 236 Wis. 7, 294 N. W. 51.

       2 Larson, Law of Workmen’s Compensation, p. 230, sec. 76.21.


source: Caselaw Access Project

author: Gordon, J. Wilkie, J.

license: Public Domain

text:
    Andritsch, Appellant, v. Henschel, Respondent.

      April 2

    April 27, 1965.

      For the appellant there was a brief and oral argument by Edward Rudolph of Milwaukee.
    For the respondent there was a brief by Hoffman, Cannon, McLaughlin & Herbon, attorneys, and David M. Quale of counsel, all of Milwaukee, and oral argument by Mr. Quale.

   Gordon, J.

In final argument to the jury, the defendant’s counsel called the plaintiff a “Nazi.” The question which we must determine is whether the use of this epithet requires a new trial.

There is probably no term which more inescapably must be branded a “hate” word. The use of the expression in final argument to the jury was patently improper; it was designed to inflame the jury and to procure for the defendant a benefit resulting from the venom and ignominy attendant to such label.

It is to be noted that, on the defendant’s behalf, the same law firm handled both the trial and this appeal, but such firm was represented at the trial by a different lawyer from the one who has presented the appeal. We have no hesitancy in labeling as abusive and improper the conduct of the attorney who represented the defendant at the trial.

This court has often in the past strongly condemned such obvious attempts to prejudice a jury. In Georgeson v. Nielsen (1935), 218 Wis. 180, 185, 260 N. W. 461, there was a transparent attempt to prejudice the jury, and 'this court commented:

“A remark is made by counsel, known by him to be improper, and made with intent and expectation that it will improperly influence the jury to the advantage of his client' and the disadvantage of the opposing party. No extraneous evidence is needed to establish such intent. If such result is not intended, why are such remarks made ?”

See also McGaw v. Wassmann (1953), 263 Wis. 486, 496, 57 N. W. (2d) 920, 58 N. W. (2d) 663, and Corti v. Cooney (1926), 191 Wis. 464, 472, 211 N. W. 274.

Appeals to jurors on oral argument regarding race prejudice are objectionable. See Di Donato v. Consolidated Edison Co. of New York, Inc. (1963), 19 App. Div. (2d) 516, 240 N. Y. Supp. (2d) 36. Similarly, attempts by counsel to discredit a litigant by reference to nationality are grounds for reversal. Marx v. State (1941), 141 Tex. Crim. 628, 150 S. W. (2d) 1014; Abbate v. Solan (1939), 257 App. Div. 776, 15 N. Y. Supp. (2d) 332; Miller v. People (1921), 70 Colo. 313, 201 Pac. 41. The reference in argument to a litigant’s religion will likewise warrant reversal. Moss v. Sanger Brothers (1889), 75 Tex. 321, 12 S. W. 619.

The appellant urges that the argument of counsel was so prejudicial on its face as to necessitate a new trial as a matter of law. We are fully mindful of the seriousness of the impropriety committed in the instant case, but there are other circumstances in the instant case which persuade us to hold that the trial court did not abuse its discretion in refusing to order a new trial. We have often held that this type of motion is addressed to the discretion of the trial court and that this court will not intrude in the absence of an abuse of such discretion. Schneck v. Mutual Service Casualty Ins. Co. (1964), 23 Wis. (2d) 649, 660, 128 N. W. (2d) 50; Fields v. Creek (1963), 21 Wis. (2d) 562, 572, 124 N. W. (2d) 599; Smith v. Rural Mut. Ins. Co. (1963), 20 Wis. (2d) 592, 123 N. W. (2d) 496.

A significant factor which supports the trial court’s determination is that it was the plaintiff’s own counsel who first planted in the jury’s mind that Mr. Andritsch may have been a Nazi. On voir dire the plaintiff’s attorney asked the jurors whether they would be prejudiced against the plaintiff if the evidence disclosed that the plaintiff had been a member of the Nazi party during World War II. The plaintiff’s counsel also planted the seed that his client had been a German soldier in World War II and had fought on the side opposing the United States.

These disclosures were contained in voluntary and unilateral declarations at the outset of the trial and clearly represented a calculated (but, perhaps, misguided) trial strategy on the part of the plaintiff’s counsel. Thus, in a very real sense, it was the plaintiff’s own counsel who opened the door; this previous reference to Mr. Andritsch as a one-time Nazi must have heavily influenced the trial court in determining whether there was a poisonous effect to the sting of the defendant’s closing argument.

We note that the trial judge carefully evaluated the possible prejudicial effect of the closing argument of the defendant’s counsel, and he stressed the fact that an inquiry into Mr. Andritsch’s background as a member of the Nazi party had been explored by his own attorney on voir dire examination. It is apparent from the trial judge’s oral decision that he promptly prevented any further discussion of the matter in the presence of the jury.

This court does not have before it the benefit of a transcript of the trial, nor do we have the context of the words actually used during the closing arguments. In the absence of a transcript, the question before us is whether the pleadings, decision, findings and conclusions sustain the judgment. Estate of Reynolds (1964), 24 Wis. (2d) 370, 129 N. W. (2d) 251; Stelloh v. Liban (1963), 21 Wis. (2d) 119, 122, 124 N. W. (2d) 101; Nichols v. United States Fidelity & Guaranty Co. (1961), 13 Wis. (2d) 491, 109 N. W. (2d) 131.

The trial judge was in a better position than we are to weigh the impact of the statement to the jury made by the defendant’s counsel. The tone of voice used by counsel and the context of his statement are not disclosed by the record before us. Handicapped by the absence of a transcript, we are particularly reluctant to find that the trial judge abused his discretion.

That the jury was not, in fact, prejudiced by counsel’s remark is also hinted, at least, by the fact that several answers on the part of the jury to other questions of the special verdict were apparently fair ones so far as this plaintiff is concerned. The first question of the special verdict inquired whether the defendant had agreed “to keep and maintain the premises in good repair.” The jurors answered this in the affirmative. This response was clearly favorable to the plaintiff.

The jury also found that the defendant was negligent in so maintaining the premises and that such negligence was a substantial factor in causing the accident. Such answers were also in the plaintiff’s favor. In response to the seventh question of the verdict, the jury assessed the sum of $2,000 for pain, suffering, and disability on the part of the plaintiff, although his total medical expense was only $28 and his loss of earnings $246. While these figures do not necessarily establish an absence of prejudice, there is a relevant comment in Plautz v. Kubasta (1941), 237 Wis. 198, 207, 295 N. W. 667:

“Where remarks have a clearly prejudicial tendency, the fact of prejudice usually is indicated by an excessive or inadequate award of damages or by findings that are against the weight of the evidence, and where the findings of the jury seem to be in accordance with the preponderance of the evidence and the damages assessed are moderate, it cannot ordinarly be said that the argument resulted in prejudice.”

While we severely disapprove of the closing argument used in this case, we conclude that upon all the factors considered in this opinion we cannot hold that there was an abuse of discretion on the part of the learned trial court. However, though not prejudicial as a matter of law, counsel’s argument transgressed propriety, and we have decided that costs should be denied to the respondent upon this appeal.

By the Court. — Judgment affirmed, without costs.

Hallows, J., took no part.

Wilkie, J.

(dissenting). In my opinion the improper argument by defense counsel in which he referred to the plaintiff as a “Nazi” was prejudicial. Although we are handicapped by the absence of a transcript, and as the majority notes, several questions were answered in a manner favorable to the plaintiff, the jury allocated 60 percent of the negligence to him and thus barred him from any recovery. This is enough evidence of prejudice to convince me that a new trial should have been ordered. It is true that wide latitude is allowed to counsel on closing jury arguments. But there are limits as noted in the cases cited by the majority. The use of the word “Nazi” is so offensive and so prejudicial on its face, or, in any event in this case, that I would hold it was an abuse of discretion for the trial court not to have granted a new trial on this ground. In this era when all our institutions are straining to stamp out intolerance such a plain attempt to poison the jurors’ minds should not be countenanced. I would reverse and order a new trial.


author: Wilkie, J.

text:
    Kilps and wife, Appellants, v. Pawinski, Respondent.

      April 2

    April 27, 1965.

      For the appellants there was a brief by Rebhols & Duffey, attorneys, and F. Thomas Ament of counsel, all of Milwaukee, and oral argument by Mr. Ament.

    For the respondent there was a brief by Teper & Weiss of Milwaukee, and oral argument by Daniel J. Weiss.

   Wilkie, J.

The principal issue presented on this appeal is whether condemnation of a portion of the rented property constructively evicted the respondent as lessee.

This is a question of first impression in this state. It is well settled in other jurisdictions that the taking of the entire premises by condemnation operates to terminate the lease and release the tenant from liability to pay rent. In addition, although there is authority to the contrary, the general rule is that a partial taking of a leasehold estate under the power of eminent domain does not amount to an eviction and the lessee remains liable for the rent as long as the land or premises remain susceptible of occupation. The underlying rationale for this general rule is that the lessee, as owner of an estate for years, takes his term as any other interest in land is taken — i.e., subject to the condemnation power of the state. Any loss the tenant suffers is not due to the landlord’s action, but is occasioned by an act of the state, against whom the law has provided a remedy.

It is undisputed, in the instant case, that the only portion of the leasehold estate affected by the condemnation was the parking space; no part of the building proper was involved. The trial court concluded that removing the “ ‘suitable parking place’ provided for in the lease would in a sense prevent the tenant from occupying the premises or at least such a material part of the premises that the remaining portion would not be, in affect [sic], what the tenant leased.”

No case has been cited to us nor have we found one in which the mere taking of parking facilities by condemnation (the act of a third party, i.e., the public) constituted an eviction. Condemnation of various portions of leasehold estates has not resulted in lease terminations in the following instances: One half of the land and practically an entire service station building, 8.3 feet of a building which had total frontage of 35 feet, the whole building (for temporary use by the government), one of three tracts of land, a 100-foot swath through a 411-by-192-foot lot used as a coal yard, a 3.87-acre piece of a 12.5-acre outdoor movie area, and one tract of four upon which a feed and coal business was operated. These situations are illustrative only, but they do demonstrate that to give rise to an eviction, the condemnation must effectively render the land or premises untenantable for the purposes of the lease.

Respondent operated a beauty parlor. The cause was presented to the trial court on a stipulation of facts that, as pertinent here, recited the provision of the lease as to the parking spaces, and the fact that the condemnation took away those spaces. Nothing was stated as to whether the condemnation of the strip of land utilized as a parking lot for three cars prevented respondent from continuing the business or caused him any loss. Nothing was stated in any respect as to the importance of the parking. Under certain circumstances no doubt parking facilities would be an inherent requirement of the continuation of a business contemplated by the lease, but such an inference cannot be drawn from the limited facts presented here. On the state of the record we believe that the trial court erred in determining that the condemnation took “ ‘so great a portion of the property’ as to ‘prevent tenant from occupying premises’ [which] resulted in a constructive eviction . . . .”

This is especially true in this instance where, although the condemnation award was recorded in September of 1962, work was not commenced on the highway until April, 1963, just a little over four months before the lease was due to expire. Although on the record here respondent apparently could have had about seven more months of use before he actually would have been deprived of the use of the lot, he vacated the premises after paying rent through the month of October, 1962. This action of the respondent negates his contention that the lease was terminated because the express covenant to provide three parking places in front of the shop was breached. This case is similar to Orange State Oil Co. v. Jacksonville Expressway Authority, where the lessee abandoned the leasehold property prior to the expiration of the lease when he learned that condemnation proceedings, which would ultimately affect the property, were to be instituted. The court held that the lessee had committed an anticipatory breach of the lease contract. So here, if there was any breach of the lease by either party, the breach would be that of the respondent in that he removed his business from appellants’ building over seven months before the parking lot became unfit for the purpose intended.

If a condemnation of just part of leased property does not operate to upset a lease of the whole of that property, it must follow that condemnation cannot cause a breach of a lease merely because some particular covenant has been adversely affected.

Respondent argues that because title to the condemned property vested in the condemnor when the damage award was recorded, September 17, 1962, appellants were actually unable after that date to provide the space. However, respondent remained at the site until November 1, 1962, and the record discloses no reason why he could not have stayed until the actual work started. In any event, the fact that title vested in the state at a particular time has no bearing on the question of whether the lease was breached. Not only was this something out of appellants’ control, but also since only a part of the leased premises was involved in the taking, the rule would apply that a partial condemnation does not terminate the lease so long as the premises remain susceptible of occupation for the purposes of the lease. And as we have concluded, the partial taking here did not effectively destroy the operation of the beauty parlor business, did not prevent the tenant from occupying the premises, and accordingly the condemnation did not constitute a constructive eviction.

Since the trial court found that the lease had been terminated, it did not reach the question of rental abatement. The general rule is that when a part of the premises is condemned, the tenant remains liable under his covenant to pay rent since nothing short of a surrender, release, or eviction will discharge him from this covenant. The tenant must look to an apportionment of the damages assessed against the condemning authority based on the reduced value of his lease. Such participation in condemnation proceedings leading to winning part of the award is expressly provided for by statute. Here the tenant did not participate in the condemnation proceedings either directly or on appeal and respondent did not receive his proportionate share of the award.

Although, on the facts as presented here, the partial taking does not constitute a constructive eviction, and although the respondent is not entitled to a partial abatement of his rentals, he has not participated in the condemnation proceedings and presumably the appellants have received whatever compensation has been awarded for the loss of the parking spaces. The parties apparently agree that the taking was legal in all respects. The respondent should receive some relief for the taking that has affected his tenancy.

Presumably the way is still open for the tenant to commence a partition action to gain part of the award. We could reverse and order judgment on the complaint without any allowance to the respondent, leaving him to pursue his partition remedy. However, in this particular case we believe it better procedure to remand the cause for further proceedings under which the trial court first can determine that sum to which the respondent would be entitled as his portion of the award resulting from the condemnation of part of the rented property (the three parking spaces) during the period from the date when these spaces were physically made unavailable (presumably April 15, 1963), until the end of the lease (August 31, 1963), and then credit this sum against the unpaid rent payments due under the lease.

By the Court. — Judgment reversed, and cause remanded for proceedings consistent with this opinion. Costs on this appeal to appellants.

        E.g., Corrigan v. Chicago (1893), 144 Ill. 537, 33 N. E. 746; Chryssoverges v. General Cigar Co. (1927), 163 La. 364, 111 So. 787; Board of Levee Commissioners v. Johnson (1889), 66 Miss. 248, 6 So. 199.

       See 2 Nichols, Eminent Domain (3d ed.), p. 67, sec. 5.23 (3).

       2 Nichols, Eminent Domain, ibid.; 1 American Law of Property, p. 288, sec. 3.54; 51 C. J. S., Landlord and Tenant, p. 669, sec. 98; 52 C. J. S., Landlord and Tenant, p. 244, sec. 483; Anno. 163 A. L. R. 679. Recent cases recognizing- the rule are: Orange State Oil Co. v. Jacksonville Expressway Authority (Fla. 1962), (1st Dist. Ct. of App., an intermediate appellate court), 143 So. (2d) 892; Batcheller v. Iowa State Highway Comm. (1960), 251 Iowa 364, 101 N. W. (2d) 30; Barsamian v. Bernhard (1955), 140 N. Y. Supp. (2d) 415; Elliott v. Joseph (1961), 163 Tex. 71, 351 S. W. (2d) 879; Newman v. Commonwealth (1957), 336 Mass. 444, 146 N. E. (2d) 485.

        Pasadena v. Porter (1927), 201 Cal. 381, 257 Pac. 526; Gluck v. Baltimore (1895), 81 Md. 315, 32 Atl. 515, 48 Am. St. Rep. 515.

       See Leonard v. Autocar Sales & Service Co. (1945), 392 Ill. 182, 64 N. E. (2d) 477; Stubbings v. Evanston (1891), 136 Ill. 37, 26 N. E. 577; Olson Land Co. v. Alki Park Co. (1911), 63 Wash. 521, 115 Pac. 1083.

       A tenant for a term of five years has an interest in the land (see sec. 235.50, Stats.), may be entitled to receive notice of a jurisdictional offer under sec. 32.05 (4), Stats., and may appeal under sec. 32.05 (9) (a), sec. 32.05 (10), and sec. 32.05 (11), Stats., from a condemnation award. After an award has been finally determined he may petition for partition of the award under sec. 32.05 (9) (a) 3, “[w]hen the owners or parties having an interest in land taken cannot agree on the division of an award . . . .”

       The trial court relied on the recent case of Schaaf v. Nortman (1963), 19 Wis. (2d) 540, 120 N. W. (2d) 654. That case dealt with a strict landlord-tenant problem wherein the tenant charged that certain acts by his landlord rendered the premises untenantable and constituted constructive eviction. The court, at page 545, held that the “occasional lack of heat and hot water” and other inconveniences of which the tenant complained, were temporary and were “not of sufficient severity or frequency to say that Nortman [the tenant] was deprived of the full use and enjoyment of the leased property for a material period of time.”

        Orange State Oil Co. v. Jacksonville Expressway Authority, supra, footnote 3.

        Pasadena v. Porter, supra, footnote 4.

        Leonard v. Autocar Sales & Service Co., supra, footnote 5.

        Olson Land Co. v. Alki Park Co., supra, footnote 5.

         Stubbings v. Evanston, supra, footnote 5.

        Elliott v. Joseph, supra, footnote 3.

        Batcheller v. Iowa State Highway Comm., supra, footnote 3.

        Supra, footnote 3.

       Sec. 32.05 (7) (c), Stats.

         E.g., Olson Land Co. v. Alki Park Co., supra, footnote 5; Yellow Cab Co. v. Stafford-Smith Co. (1926), 320 Ill. 294, 150 N. E. 670; Gluck v. Baltimore, supra, footnote 4; F. W. Woolworth Co. v. Berlin (1925), 82 N. H. 153, 130 Atl. 741; Elliott v. Joseph, supra, footnote 3; Parks v. Boston (1834), 15 Pick. 198, 32 Mass. 198. See also 2 Nichols, Eminent Domain (3d ed.), p. 69, sec. 5.23 (3).

        Elliott v. Joseph, supra, footnote 3; Olson Land Co. v. Alki Park Co., supra, footnote 5.

        Supra, footnote 6.

       See sec. 32.05 (9) (a) 3, Stats., under footnote 6, supra.


author: Heffernan, J.

text:
    Tully, Appellant, v. Fred Olson Motor Service Company and another, Respondents.

      March 30

    April 30, 1965.

      For the appellant there was a brief by Bernstein, Wessel, Weitzen & Lewis and John H. Wessel, all of Milwaukee, and oral argument by John H. Wessel.

    For the respondent Fred Olson Motor Service Company there was a brief by Federer & Ludwig of Milwaukee, and oral argument by Carl J. Ludwig.

    For the respondent Chauffeurs, Teamsters & Helpers “General” Local No. 200, there were briefs by’ Goldberg, Previant & Uelmen of Milwaukee, and oral argument by David Previant.

       Motion for rehearing denied, with costs, on June 25, 1965.

   Heffernan, J.

It is the opinion of this court that each of the three causes of action set forth in the plaintiffs complaint stated a cause of action under sec. 301 (a) of the Labor Management Relations Act of 1947 (29 USCA, sec. 185), that none of these causes of action are exclusively within the jurisdiction of the national labor relations board, and that the statute to be applied is the Wisconsin six-year limitation.

The trial court held that a sec. 301 (a) action was stated by plaintiff’s first and third actions, but did not so find in connection with the second cause of action (representation by the union). That section provides :

“Sec. 301. (a) Suits for violation of contracts between an employer and a labor organization representing employees in an industry affecting commerce as defined in this chapter, or between any such labor organizations, may be brought in any district court of the United States having jurisdiction of the parties, without respect to the amount in controversy or without regard to the citizenship of the parties.”

It is not disputed that causes of action one and three state sufficient sec. 301 (a) allegations. We hold that the second cause of action also does so. The case of Humphrey v. Moore (1964), 375 U. S. 335, 84 Sup. Ct. 363, 11 L. Ed. (2d) 370, is analogous to the second cause of action in the instant case. In Humphrey two auto-transport companies merged a portion of their operations. This necessitated a “dovetailing” of employees, with consequent problems of seniority, layoff, etc. Each group of employees was represented by the same union, and both employers were subject to almost identical collective-bargaining agreements. The agreement provided that in the event of mergers the dispute was to be resolved by agreement between the union and the employers involved — the controversy was to be submitted to the joint grievance committee. The action of the joint committee resulted in a larger number of layoffs for the employees of the “Dealers” company. The respondent, Moore, on behalf of himself and other employees of “Dealers,” asked in the Kentucky courts for an injunction to prevent the decision of the joint grievance committee from being carried out. The complaint, to the extent that it is pertinent here, alleged that the plaintiffs had relied upon the union to represent them. The decision was charged to be arbitrary and capricious, contrary to the existing practice in the industry, and violative of the collective-bargaining contract. Although arising out of different facts, the allegations in Humphrey, which also asked for damages, are substantially the same as those in the case at bar. In each case, the heart of the allegation is the failure of the union to conform with the provisions of the contract. The supreme court of the United States stated in Humphrey, supra, at page 342:

“The undoubted broad authority of the union as exclusive bargaining agent in the negotiation and administration of a collective bargaining contract is accompanied by a responsibility of equal scope, the responsibility and duty of fair representation.”

The United States supreme court held that allegations were sufficient to charge a breach of duty by the union in the process of settling grievances at issue under the collective-bargaining agreement. The court held that the action was one that arose under sec. 301 of the LMRA. This decision appears to follow the explicit language of the statute, “Suits for violation of contracts . . . may be brought.” In the instant case the plaintiff has alleged the violation of a contractual duty, and so states a cause of action under the statute.

The trial court, however, without making a determination whether this was a sec. 301 (a) cause of action, held that the wrong alleged was solely within the jurisdiction of the NLRB on the ground that only “. . . if an action involves the internal affairs of a union and restoration of union membership . . . the state remedy has not been pre-empted by Congress through the Taft-Hartley Act.” It should be noted that the cases upon which the respondents rely are not cases arising under sec. 301 (a). The United States supreme court in Plumbers’ Union v. Borden (1963), 373 U. S. 690, 83 Sup. Ct. 1423, 10 L. Ed. (2d) 638, discussed the rules of federal pre-emption and the exceptions that arose in Machinists v. Gonzales (1958), 356 U. S. 617, 78 Sup. Ct. 923, 2 L. Ed. (2d) 1018, and San Diego Unions v. Garmon (1959), 359 U. S. 236, 79 Sup. Ct. 773, 3 L. Ed. (2d) 775. The court there stated the rule:

“. . . that in the absence of an overriding state interest such as that involved in the maintenance of domestic peace, state courts must defer to the exclusive competence of the National Labor Relations Board in cases in which the activity that is the subject matter of the litigation is arguably subject to the protections of § 7 or the prohibitions of § 8 of the National Labor Relations Act.” Plumbers’ Union v. Borden, supra, page 693.

But significantly this statement carries the following footnote (Footnote 3, p. 693):

“. . . We do not deal here with suits brought in state courts under § 301 or § 303 of the Labor Management Relations Act, 61 Stat. 156, 158, 29 U. S. C. §§ 185, 187, which are governed by federal law and to which different principles are applicable. See, e.g., Smith v. Evening News Assn., 371 U. S. 195.” (Emphasis supplied.)

See also Footnote 9, Teamsters Local v. Lucas Flour Co. (1962), 369 U. S. 95, 82 Sup. Ct. 571, 7 L. Ed. (2d) 593. This position, making the distinction, was most strongly stated in Smith v. Evening News Asso. (1962), 371 U. S. 195, 197, 83 Sup. Ct. 267, 9 L. Ed. (2d) 246.

"Lucas Flour and Dowd Box, as well as the later Atkinson v. Sinclair Refining Co., 370 U. S. 238, were suits upon collective bargaining contracts brought or held to arise under § 301 of the Labor Management Relations Act and in these cases the jurisdiction of the courts was sustained although it was seriously urged that the conduct involved was arguably protected or prohibited by the National Labor Relations Act and therefore within the exclusive jurisdiction of the National Labor Relations Board. In Lucas Flour as well as in Atkinson the Court expressly refused to apply the preemption doctrine of the Garmon case; and we likewise reject that doctrine here where the alleged conduct of the employer, not only arguably, but concededly, is an unfair labor practice within the jurisdiction of the National Labor Relations Board. The authority of the Board to deal with an unfair labor practice which also violates a collective bargaining contract is not displaced by § 301, but it is not exclusive and does not destroy the jurisdiction of the courts in suits under § 301. If, as respondent strongly urges, there are situations in which serious problems will arise from both the courts and the Board having jurisdiction over acts which amount to an unfair labor practice, we shall face those cases when they arise. This is not one of them, in our view, and the National Labor Relations Board is in accord.”

We conclude, therefore, that the cases cited in support of the decision of the trial court are not applicable to this, a sec. 301 (a) cause of action, and hence the second cause of action, like the first and third, is not subject to pre-emption by the NLRB.

A cause of action brought under sec. 301 (a) of the LMRA is within the jurisdiction of the state courts as well as the federal courts. Their jurisdiction in respect to these causes of action is concurrent. Dowd Box Co. v. Courtney (1962), 368 U. S. 502, 82 Sup. Ct. 519, 7 L. Ed. (2d) 483. However, it was decided later in Teamsters Local v. Lucas Flour Cosupra, page 103, that:

“The dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute. Comprehensiveness is inherent in the process by which the law is to be formulated under the mandate of Lincoln Mills, requiring issues raised in suits of a kind covered by § 301 to be decided according to the precepts of federal labor policy.
“More important, the subject matter of § 301 (a) ‘is peculiarly one that calls for uniform law.’ ”

However, Textile Workers v. Lincoln Mills (1957), 353 U. S. 448, 77 Sup. Ct. 912, 1 L. Ed. (2d) 972, held that it was the federal law that was to be applied in state courts. But state law, if compatible with the purpose of sec. 301, could be used in order to find the rule that will best effectuate federal policy.

In Clark v. Hein-Werner Corp. (1959), 8 Wis. (2d) 264, 99 N. W. (2d) 132, 100 N. W. (2d) 317, we recognized this principle, but did not find a conflict between federal and state law that made necessary a determination of which law to use, and in addition the court bottomed its decision primarily on cases involving federal law.

The Lincoln Mills Case made it clear that:

“. . .’ the substantive law to apply in suits under § 301 (a) is federal law, which the courts must fashion from the policy of our national labor laws. . . . The Labor Management Relations Act expressly furnishes some substantive law. It points out what the parties may or may not do in certain situations. Other problems will lie in the penumbra of express statutory mandates. Some will lack express statutory sanction but will be solved by looking at the policy of the legislation and fashioning a remedy that will effectuate that policy. The range of judicial inventiveness will be determined by the nature of the problem .... [citing cases]. Federal interpretation of the federal law will govern, not state law . . .” Textile Workers v. Lincoln Mills, supra, page 456.

We can therefore conclude that the jurisdiction to decide sec. 301 (a) cases is not vested exclusively in the NLRB, nor even in the federal courts. It is a jurisdiction that the federal courts share with the states, but it is clear that federal law, if there be any, is the law to be applied.

We then face up to the very crux of the appeal. The trial court held that all of the causes of action were barred by the federal statute of limitations applicable to unfair labor practices. Certainly the federal limitation is to be applied if there is one. It is urged that the proper limitation appears in sec. 10 (b) of LMRA (1947), 29 USCA, sec. 160 (b). It details the procedure for bringing unfair labor practices before the NLRB and provides inter alia, “. . . no complaint shall issue based upon any unfair labor practice occurring more than six months prior to the filing of the charge with the Board . . .”

We are urged to invoke “judicial inventiveness” to make the six-month limitation specified for unfair labor practices before the NLRB applicable to breach of contract suits (under sec. 301 (a)) arising under another section of the act.

The “judicial inventiveness” that the respondent asks for would have us apply a statute designed for the disposition of unfair labor practices in an administrative tribunal of the United States to an action for breach of contract (that may or may not also constitute an unfair labor practice) in a state court. One thing is clear, and that is that no limitation is specifically made applicable to sec. 301 (a) by any provision of the LMRA. If we are to find a limitation in the act, it can only be by what we consider an inordinate and unjustifiable transplanting of the provisions of one section to another. In the dissenting opinion to Smith v. Evening News Asso., supra, Mr. Justice Black (who disagreed with the holding that sec. 301 suits that were unfair labor practices could be brought into the courts rather than before the NLRB) pointed out the extent to which the court would overreach itself to apply the six-month statute:

“Of course this Court could later, by another major statutory surgical operation, apply the six-months Labor Board statute of limitations to actions for breach of collective bargaining contracts under § 301. But if such drastic changes are to be wrought in the Act that Congress passed, it seems important to me that this Court should wait for Congress to perform that operation.” Smith v. Evening News Asso., supra, page 203.

We agree with Mr. Justice Black’s analysis that the application of the six-month statute would require major surgery, beyond the powers of this court. We have been shown no authority that would give this court the power to revise a federal statute, even though it is ably argued that such a revision is desirable or necessary.

Nor is this conclusion without precedent. Reliford v. Eastern Coal Corp. (6th Cir. 1958), 260 Fed. (2d) 447, specifically held that Congress provided no limitation on sec: 301 actions, and the court proceeded to apply the fifteen-year statute of limitations applicable in Kentucky to written contracts.

In the case of Fischbach & Moore, Inc., v. International Union of Operating Engineers (D. C. Cal. 1961), 198 Fed. Supp. 911, the court held that in a sec. 303 action under the LMRA that there was no federally created statute of limitations in the act. It considered applying the six-month limitation of 10 (b) and a somewhat analogous statute appearing under the antitrust statute, 15 USCA, sec. 15b with a four-year limitation. The court recognized the need for uniform interpretation of the LMRA, that the statute was a matter of national concern and should not depend upon the vagaries of local law for its interpretation. Yet that court concluded:

“It is the court’s strong opinion that where a choice of policy is to be made which limits the exercise of a legislatively created right, such choice is obviously most appropriately to be made by the legislative branch of the government. If Congress believes that stale claims are being prosecuted under Section 303, then it is up to Congress to determine the cutting-off point . . .” Fischbach & Moore, Inc., v. International Union of Operating Engineers, supra, page 915.

The court in that case refused to apply a state statute of limitations and invoked the equitable doctrine of laches. The court held that an action under sec. 303 which had arisen more than three years prior to filing of the complaint was not barred.

In Harmon v. Martin Bros. Container & Timber Products Corp. (D. C. Or. 1964), 227 Fed. Supp. 9, the court held that the six-month limitation did not apply to a sec. 301 action.

Much is made of the cases following McAllister v. Magnolia Petroleum Co. (1958), 357 U. S. 221, 78 Sup. Ct. 1201, 2 L. Ed. (2d) 1272. There the court held that the federal limitation of three years under the Jones Act must be applied to a related cause of action for “unseaworthiness” since both must be sued upon in a single action. The court there held that the application of the state two-year statute would defeat a federally created right. Among other distinctions it should be noted that the state limitation proposed in McAllister would have limited or curtailed the federally created right. To apply the state statute in the instant case will, however, preserve the rights granted under sec. 301.

Since we find no limitations spelled out in the LMRA and none that can be supplied by reasonable construction, the state statute of limitations is applicable.

“Where federal statutes, which create federal rights of action, do not include a period of limitations, it has been the practice of state and federal courts to apply state statutes of limitations.” McAllister v. Magnolia Petroleum Co., supra, page 228, concurring opinion.

It is our opinion that the six-year limitations set forth in sec. 330.19 (3), Stats., is applicable to this case. We agree with the trial court that the one-year limitation of sec. 111.07 (14) is not relevant since that limitation is made applicable only to the right to proceed under that section, while in the case before us we are concerned with the right to pursue a remedy resulting from the alleged breach of a federally created right.

We do not contend that the six-year limitation is ideal. We reach this conclusion, because it appears to us that all arguments for other periods of limitation that have been advanced by the parties are palpably untenable. We are inclined to agree that a six-year limitation is excessive and is not conducive to the prompt disposition of labor disputes. Mr. Justice Black in his dissenting opinion to Smith v. Evening News Asso., supra, pointed out the problems that might arise by the supreme court’s holding that the jurisdiction of sec. 301 suits was not pre-empted by the NLRB:

“Instead, by permitting suits like this one to be filed, it is now not only possible but highly probable that unfair labor practice disputes will hang on like festering sores that grow worse and worse with the years.” Smith v. Evening News Asso., supra, page 203.

Despite this admonition by Mr. Justice Black, the Congress has failed to enact a period of limitations applicable to sec. 301 suits, and the United States supreme court has not retreated from the position taken in Smith. We are not unmindful of the serious problems adumbrated by both respondents. There not only can be delay in the final disposition of sec. 301 (a) cases, but the applicable periods of limitations will vary from state to state. It would appear that Congress might well give further consideration to the enactment of periods of limitations to those portions of the LMRA that are not specifically covered in the statute.

By the Court. — The order of the court sustaining the demurrer is reversed, and the cause is remanded for the entry of an order overruling the demurrer.


text:
    Bie and wife, Respondents, v. Ingersoll and another, Appellants.

      April 26

    June 1, 1965.

      For the appellants there was a brief by Arnold, Arnold & Thorson of Elkhorn, and oral argument by Robert W. Arnold.

    For the respondents the cause was submitted on the brief of Richardson & Hammett and R. G. Richardson, Jr., all of Delavan.
   Heffernan, J.

The only question raised on this appeal is whether the trial court’s findings, that the asphalt-plant’s operation and the trucking in connection with it constituted a nuisance, is contrary to the great weight and clear preponderance of the evidence. Colson v. Salzman (1956), 272 Wis. 397, 401, 75 N. W. (2d) 421. The activity complained of must create more than an inconvenience, and must be offensive to the person of ordinary and normal sensibilities. The result is not to be measured by its effect upon those of extreme sensibilities.

The following finding by the trial court is in accord with the above tests for determining whether or not certain activity is a nuisance:

“That the smoke given off from the hot mix plant is a nuisance to the plaintiffs herein, in that it carries onto the property of the plaintiffs dirt, dust, and other unpleasant particles, and that it contains an odor of a noxious nature resembling that of tar and asphalt, and that the dirt and odor referred to substantially interfere with the comfort and enjoyment of the plaintiffs in the use of their property, and injures the use of their property;
“That the operation of trucks to and from the pit upon the roadway constructed therefor is a nuisance in that it creates excessive dust and dirt which is carried upon the property of the plaintiffs, and that it substantially interferes with the comfort and enjoyment of the plaintiffs in the use of their property, and injures the use of their property.”

What we said in holding a 'tanning business a nuisance is applicable here:

“A business necessarily contaminating the atmosphere to the extent indicated should be located where it will not necessarily deprive others of the enjoyment of their property, or lessen their comfort while occupying the same.”

The appellants contend that findings are contrary to the great weight and clear preponderance of the evidence because the zoning authority has classified the property occupied by the asphalt plant as industrial. There are those cases that hold that if the local lawmakers have acted through a zoning ordinance, a court cannot thereafter hold a conforming use to be a nuisance. Other jurisdictions reason that a zoning ordinance and a use permitted by it does not give the property owner immunity from the consequences of maintaining a nuisance. We conclude that though an industrial use is permitted by the ordinance, the property must be used in such way that it will not deprive others of the use and enjoyment of their property. The operation of the asphalt plant, within the purview of the zoning ordinance, is lawful, but as we said in Pennoyer v. Allen, supra, at page 512:

“. . . such interruption [of enjoyment] and destruction [of comfort] is an invasion of private rights, and to that extent unlawful. It is not so much the manner of doing as the proximity ... to the adjacent occupant which causes the annoyance.”

In Dolata v. Berthelet Fuel & Supply Co. (1949), 254 Wis. 194, 36 N. W. (2d) 97, we held that a coal yard constituted a nuisance as to neighboring residential properties even though the yard itself is located on the fringe of an industrial-business district. Professor Jacob Beuscher of the Wisconsin Law School discusses that problem in an extensive law review article. We agree with the cases discussed there that hold that the zoning classification is not the controlling factor, though it is, of course, entitled to some weight. It is rather “the peculiar nature and the location of the business, not the fact that it is a business, that constitutes the private nuisance and ground for equitable relief.”

The appellants argue that if this court agrees with the trial court in finding a nuisance, that the judgment nevertheless must be modified because it is so broad in scope that all further operation of the plant is prohibited. The appellants contend that the release of “one minute particle” of dust would be violative of the order. We do not find the terms of the judgment to be that broad. The trial court abated the plant operation only to the extent that it constituted a nuisance. If the asphalt plant can be operated in a way that odors and dust are not present to such a degree as to constitute a nuisance, then the order does not prohibit the operation of the plant.

The appellants also contend that that part of the judgment which refers to B. R. Amon & Sons as the licensee should be reversed. The record shows that the defendant, B. R. Amon & Sons, is in fact a lessee. Therefore, the judgment should be modified to state that Ingersoll should be restrained from permitting his land to be used by a licensee or lessee in such a way as to cause the nuisance restrained by the judgment.

By the Court. — The judgment is modified to provide that the defendant, John Ingersoll, be perpetually enjoined from permitting his land to be used by a licensee or lessee in such a way as to cause the nuisance herein restrained by the judgment and, as so modified, affirmed.

        Schneider v. Fromm Laboratories, Inc. (1952), 262 Wis. 21, 25, 53 N. W. (2d) 737. See also Prosser, Law of Torts (2d ed.) p. 395, sec. 70, which states that a private nuisance requires a substantial interference with the interest involved.

        Cunningham v. Miller (1922), 178 Wis. 22, 29, 189 N. W. 531.

       Ibid.

         Pennoyer v. Allen (1883), 56 Wis. 502, 512, 14 N. W. 609.

         Robinson Brick Co. v. Luthi (1946), 115 Colo. 106, 111, 169 Pac. (2d) 171, 166 A. L. R. 655.

       Beuscher and Morrison, Judicial Zoning Through Recent Nuisance Cases, 1955 Wisconsin Law Review, 440.

         Scallet v. Stock (1952), 363 Mo. 721, 727, 253 S. W. (2d) 143.


author: Currie, C. J.

text:
    Medved, Respondent, v. Medved, Appellant.

      April 26

    June 1, 1965.

      For the appellant there was a brief and oral argument by Paul Medved of Muskego, pro se.

    For the respondent there was a brief by Hippenmeyer & Reilly and oral argument by Dale W. Arens, all of Waukesha.
   Currie, C. J.

Defendant’s brief and oral argument raised no question with respect to the merits of the judgment, but were directed to the issue that he should be awarded a new trial. He contends he is entitled to a new trial because of the incompetence of the three lawyers he had represent him in different stages of the litigation, and the action of the circuit court in insisting on the trial taking place at a time when defendant was unprepared.

Sec. 270.49 (3), Stats., provides, “All motions for new trials shall be reduced to writing and filed before being heard.” Defendant filed no motion for new trial in the circuit court. This failure precludes him from arguing in this court as a matter of right that he is entitled to a new trial. Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 518, 80 N. W. (2d) 380. However, as a matter of our discretion we may entertain such a contention, and we exercise our discretion to do so in view of the fact that defendant has not been represented by counsel since some time in the latter part of June, 1963, when he discharged his last attorney.

Much of defendant’s brief is devoted to his contention that the attorneys employed by him had not competently represented him. For the most part appellant’s contentions are wholly Immaterial to the issue before us. For example, one of defendant’s complaints against the last counsel employed was that he refused to bring an action of false arrest against the sheriff and others instrumental in the defendant’s incarceration for contempt because of his failure to comply with the order for payment of temporary alimony and support money. It is quite apparent that defendant and his attorneys disagreed on the strategy to be pursued and defendant was unwilling to follow their advice. No claim is made that any acts of his attorneys had prevented defendant from being prepared for trial on August 8, 1963. Defendant had discharged his last attorney the latter part of June, 1963. It was incumbent upon him either to employ other counsel, or to make whatever preparations he deemed advisable if he intended to act without counsel. Discharge of counsel in a civil action is generally held not to entitle a party to a continuance as a matter of right but a requested continuance for this reason rests in the sound discretion of the trial court. Withdrawal or discharge of counsel in civil case as ground for continuance. Anno. 48 A. L. R. (2d) 1155, and cases cited therein.

In Benson v. Benson (1949), 66 Nev. 94, 204 Pac. (2d) 316, defendant wife, after a divorce action was set for trial and a month’s advance notice of the trial date had been given, discharged her attorneys. On the day before trial she retained another attorney. On the following day he moved the court for a continuance. The court held that the trial court did not abuse its discretion in denying the continuance since the necessity the wife found of engaging new counsel the day before the trial was due entirely to her own negligence and lack of diligence. In the instant case the appellant’s position is aggravated by manifest obdurateness and belligerence. As is pointed out in Flynn v. Fink (1923), 60 Cal. App. 670, 673, 213 Pac. 716, the practice of granting continuances because substitution of counsel “if permitted and if persisted in, might and probably would in many cases work the destruction of private rights of the opposing litigant and would be subversive of the ‘prompt administration and execution of the laws — upon which depends largely their effectiveness.’ ”

The only issue raised by defendant which really merits our consideration is whether it was an abuse of discretion for the circuit court to have proceeded with the trial on August 8th when it was obvious that defendant was wholly unprepared to proceed. We have no hesitancy in holding that there was no abuse of discretion. As the trial court pointed out to defendant, the action had been pending for more than a year and three months and defendant had been adequately notified well in advance of August 8th that the trial would take place on that day. The trial court was well warranted in concluding that defendant’s failure to be prepared to proceed was wholly due to defendant’s own fault or deliberate choice.

While defendant has not attacked the judgment we have reviewed the record to ascertain whether any miscarriage of justice has occurred which would warrant us to exercise our discretionary power under sec. 251.09, Stats., to modify the judgment or remand for further action by the trial court. We conclude that there has been no miscarriage of justice and the record amply sustains the judgment in every particular.

Plaintiff testified that defendant struck her several times; called her filthy names; questioned the paternity of their youngest child; threatened to murder her; did not support her or her newborn child; and that his conduct had caused her to become a complete nervous wreck. The twenty-one-year-old daughter of the parties corroborated this testimony of plaintiff. Defendant interjected statements during the trial which also furnished corroboration in certain respects. Three times in these statements he characterized plaintiff as a “slob,” and, after plaintiff had testified with respect to his threat to murder her, he declared, “I should have killed you.” He also admitted when questioned by the court that he had struck plaintiff once and had called her names.

Cruel and inhuman treatment has been defined for purposes of divorce in Gordon v. Gordon (1955), 270 Wis. 332, 340, 71 N. W. (2d) 386, as follows:

“. . . 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.”

Defendant’s acts of improper conduct toward plaintiff are clearly embraced within this definition and support that part of the judgment which decreed a legal separation.

The property of the parties consists of a residence of the value of $16,860; furniture of the estimated value of $500; $200 to $300 in a savings account; a 1956 Buick automobile; a $1,000 life insurance policy on plaintiff; and a $5,000 life insurance policy on defendant. The only liabilities were $430 of unpaid real-estate taxes and some arrearages on defendant’s part in paying temporary alimony and support money. The judgment made this division of estate: The residence was awarded to defendant subject to a $5,000 mortgage given plaintiff which is to become due after three years without interest, but which is to bear five percent interest per annum after due date; each party was awarded the items of furniture in his or her possession; the automobile was awarded to defendant; and each was awarded the life insurance on his or her life.

Thus plaintiff received slightly under 33% percent of the aggregate value of the net estate. The parties had been married for twenty-five years and the property division if anything favored defendant rather than plaintiff under the established principles laid down by this court. See Wagner v. Wagner (1961), 14 Wis. (2d) 23, 27, 28, 109 N. W. (2d) 507; Kronforst v. Kronforst (1963), 21 Wis. (2d) 54, 61, 123 N. W. (2d) 528.

Defendant’s take-home pay after deductions is $90 per week. We find no abuse of discretion in the award of $35 per week support money and $15 per week alimony made by the judgment.

We wish to praise the calm, patient, fair, and yet firm manner in which the learned trial judge conducted this trial in spite of the provocative, disrespectful, and belligerent conduct of defendant. At the commencement of the trial defendant stated, “I came up here specifically to say there won’t he a trial.” Shortly thereafter before a witness had been sworn, the following interchange took place between the court and defendant:

“Court: Very well. We are going to go ahead with the trial.
“Mr. Medved: I won’t cooperate. You might as well put me in jail, because I said there isn’t going to be a trial.
“Court: We are going ahead.
“Mr. Medved: There won’t be any.”

Thereafter plaintiff took the stand and had answered the first question put to her, which was to state her name, when defendant interjected this statement :

“I warn you, this is going to the Supreme Court. I will not take this. I have been in Court on January 17th and the lawyer allowed me to be railroaded. I demand that you stop. There will not be a trial.”

Several times during plaintiff’s testimony defendant interrupted to volunteer statements castigating plaintiff. Near the end of the trial the court informed defendant of the amount of support money and alimony which would be included in the judgment and defendant defiantly stated, “There is not a chance. I won’t pay a penny, if I sit the rest of my life in jail.” The trial concluded with this further interchange:

"Mr. Medved: I say these proceedings are illegal, and I demand I have the right to appeal the case.
"Court: You have that right.
"Mr. Medved: How can I pay to go to the Supreme Court when you railroaded me today? That is the way you railroad a man. ... I say a man has rights too, and I would like to fight for my equal rights.
"Court: The Court has considered your rights.
"Mr. Medved: You have not. I have been denied my rights for the last year and a half, and I will not cooperate with the Court one bit.
"Court: That is all.”

As the Iowa court well stated in Neiderhiser v. Neiderhiser (1963), 254 Iowa 791, 799, 119 N. W. (2d) 245:

“A trial court has the right to control and conduct its court in an orderly, dignified and proper manner. It is not obligated on the basis of failure to be represented by counsel, to be subject to the whims, surliness, idiosyncrasies and indignity of litigant. 5 Am. Jur., Attorneys at Law, sections 39, 40; 45 A. L. R. 1142; 48 A. L. R. 2d 1160; S3 Am. Jur., Trial, sections 24, 25 and 34.”

By the Court. — Judgment affirmed.