author: Dieterich, J.

text:
    Stockinger, Plaintiff and Appellant, v. Central National Insurance Company, Defendant and Respondent: Edwards Motor Company, Impleaded Defendant and Respondent.

      April 30

    June 2, 1964.

      For the appellant there was a brief by Clarence H. Mertz of Sheboygan, attorney, and Stan L. Lenchek of Milwaukee of counsel, and oral argument by Mr. Mertz.

    For the respondent there was a brief by Lakes & Marcu-vitz of Milwaukee, and oral argument by Alan Marcuvitz.

   Dieterich, J.

Appellant John Stockinger was called adversely by the defendants and testified that he purchased an automobile from Edwards Motors in 1961, and that he dealt exclusively with Herman Miesfeld, an Edwards salesman whom he had known for many years. Although Edwards Motors is located in Milwaukee, all negotiations took place at appellant’s home in Sheboygan. On May 10, 1961, appellant signed an order for the car, and he testified that he signed three or four other insurance papers at approximately the same time. The car was delivered to him sometime later in May, 1961, and in October of that year, his nineteen-year-old son, Timothy Stockinger, collided with a tree while driving the car with his father’s permission. Stockinger testified that in negotiating for the purchase of the car, he requested the salesman to take care of the insurance, and that he “probably” told him to put the same type of coverage on the new car as he had carried on his old car. There is nothing in the record to indicate the type or classification of coverage under plaintiff’s policy on the old car. He stated that he subsequently received the policy in the mail, glanced at it, and believed it to be the policy he had requested.

The salesman, Herman Miesfeld, testified that Stockinger told him he wanted the same type of insurance on the new car as he had on his old car. Miesfeld also testified that when the car was delivered, appellant signed a conditional sales contract and two insurance application forms. Mies-feld had brought the papers with him, and they had all been filled in before Stockinger signed them. One of the forms in question is printed on a sheet approximately eight inches wide and seven inches long, with a space for the applicant’s signature at the bottom. There are six questions on the sheet, which are answered by checking boxes labeled “Yes” or “No.” The questions checked on the form read as follows:

“2. Is the automobile owned or principally driven by a male operator under 25 years of age?” (Answer checked “No.”)
“3. Is there a male operator under 25 years of age in the applicant’s household ?” (Answer checked “No.”)
“5. Will automobile be used by any person for business purposes except in driving to and from work?” (Answer checked “No.”)

The remaining questions are not material to the issues. Question 1 asks for the applicant’s name; question 4 is to be answered only if the questions pertaining to drivers under the age of twenty-five are answered in the affirmative; and question 6 applies only to farmers. Immediately above the applicant’s signature appears the additional question: “Is there a male member of applicant’s household who will reach legal driving age during the term of this policy?” This question was also checked “No.”

Stockinger also signed another form, which was later attached to his copy of the policy, and which bears the following heading: “Definition of private passenger automobile collision classifications.” Immediately under the heading there appears the following:

“The collision coverage provided under this policy has been classified 1, IF, 2A, 2AF, 2C, 2CF or 3 as designated below by the letter 1 “X” ’ on the basis of statements made by you or on your behalf. Advise your agent or the company if the classification is incorrect.” (Emphasis supplied.)

The only box checked on this form corresponds to the following statement:

“Class 1 means (Individual Owners only) :
“(a) The use of the automobile is not required by or customarily involved in the occupational duties of any person except in going to and from the principal place of occupation ; and
“(b) There is no male operator of the automobile under 25 years of age resident in the named insured’s household or employed as a chauffeur of the automobile.”

This is also a one-page form, and Stockinger’s signature appears at the bottom.

Miesfeld stated that the appellant looked the forms over, signed them, and gave them back. According to Miesfeld, the questions had all been completed before the appellant saw the forms, although he did not know who had filled them out. Miesfeld never asked appellant whether he had any children under twenty-five, or whether anyone under that age would be operating the car.

Russell Burger is the treasurer of Edwards Motors, and the Central’s general agent in charge of insurance under the general “Master” policy which insures cars sold by Edwards Motors. Burger stated that he has complete authority to do the underwriting on the certificates, and that it is his policy as agent to reject all applications for insurance which indicate that the car will be operated by a driver under the age of twenty-five. He testified that he began this policy in 1958, because of his “poor experience” with drivers under that age, and that he would not have accepted the plaintiff’s application if the question on under twenty-five drivers had been answered in the affirmative. Central does insure drivers under the age of twenty-five, and Burger testified that it is only his agency that refuses to accept such applications. He also stated that he has the final word on whether to accept or reject an application, and that the company cannot overrule his decisions in this respect.

Burger further testified that he gives final approval to all applications, although he did not specifically remember passing on the plaintiff’s application, and that the acceptance of applications is a routine office matter. One of Burger’s assistants testified that if he noticed that the forms indicated that the car would be operated by a male under the age of twenty-five, he would not even submit the application to Burger for approval.

There are two issues raised on the appeal: (1) Whether the plaintiff is bound by the misstatements in view of the fact that the forms were completed by the salesman; and (2) whether the misstatements increased the risk or contributed to the loss.

(1) Whether plaintiff is hound by the misstatements. The appellant contends that the misstatements in the application forms were not his representations when he signed the forms, and that Central is estopped from asserting the truth or falsity of the answers inserted in the forms by its own agent. He argues that the instant action is controlled by Emmco Ins. Co. v. Palatine Ins. Co. (1953), 263 Wis. 558, 58 N. W. (2d) 525, and Taluc v. Fall Creek Farmers Mut. Fire Ins. Co. (1931), 203 Wis. 319, 234 N. W. 364.

In the Emmco Case, the insurance agent filled out a blank in the policy itself indicating that the insured automobile was not encumbered, and the company later attempted to take advantage of a clause excluding coverage on any vehicle which is subject to any encumbrance not specifically declared in the policy. This court held that the insurer, by reason of its agent having inserted a false answer in a blank in the policy without ascertaining the true fact, was estopped from establishing the falsity of such answer. The Emmco Case is distinguishable, however, for there the blank filled in by the agent was in the policy itself and there was nothing for the insured to sign, whereas in the instant action the salesman had checked boxes on a short application form containing only six questions, all of which were directly above the blank containing Stockinger’s signature. Also, the evidence in the Emmco Case established that the insured never read, nor even looked at, the policy when he received it, whereas in the instant action there is testimony that Stockinger looked over the application before he signed it, and also that he glanced at the policy when he received it, and determined that it was what he had wanted.

Taluc v. Fall Creek Farmers Mut. Fire Ins. Co., supra, concerned a fire policy. The insurer denied liability on grounds that the insured had “intentionally, falsely, and fraudulently misrepresented” the condition of his title, the existence of an encumbrance and information as to a previous fire. This court held that since the insurance agent, who was in possession of all the facts, filled out the application for the insured, the insurer could not take advantage of an exclusionary clause providing that the policy is void if the property is subject to any encumbrance, or if there is less than a perfect title, unless such facts are specifically disclosed by the insured. The Taluc Case is distinguishable on the same grounds as the Emmco Case, for the evidence definitely established that the insured in Taluc signed the application without reading it, whereas there was testimony in the instant action that Stockinger looked over the application before he signed it, and that he looked at the policy itself when it was issued to him. Also there is no evidence in the record that the salesman, Miesfeld, had knowledge of the true facts.

It is a rule of long standing that the signing of an instrument raises a strong presumption that its contents are understood by the signer, and such presumption is not overcome by his statements that he did not understand the nature of the instrument which he signed. Rayborn v. Galena Iron Works Co. (1914), 159 Wis. 164, 169, 149 N. W. 701.

The two forms relating to drivers under the age of twenty-five which were signed by Stockinger are short, one-page questionnaires. One contains only six short questions, all appearing directly above the signature, and the other, while slightly longer, has only one box checked and that box precedes a statement that there is no male operator under the age of twenty-five who operates the car. This, too, appears above the signature. There was testimony that Stock-inger looked over these instruments before he signed them, although now he contends that he was not aware of their contents. The questionnaires are short, clear, and could be understood by the average person upon the most cursory inspection. The appellant Stockinger is clearly bound by the misstatements appearing on the signed forms accompanying his application for insurance.

(2) Relation of the misstatements to the risk. The effect of a misstatement appearing on an insurance application form is covered by statute. Sec. 209.06 (1), Stats., provides as follows:

“No oral or written statement, representation or warranty made by the insured or in his behalf in the negotiation of a contract of insurance shall be deemed material or defeat or avoid the policy, unless such statement, representation or warranty was false and made with intent to deceive, or unless the matter misrepresented or made a warranty increased the risk or contributed to the loss.”

Under this statute, there are three grounds for avoiding a policy: (1) If the statement was false and made with intent to deceive; (2) if the statement increased the risk; or (3) if the statement contributed to the loss. Polar Mfg. Co. v. Integrity Mut. Ins. Co. (1959), 7 Wis. (2d) 443, 447, 96 N. W. (2d) 822. If the misrepresentation increases the risk, or if it contributes to the loss, that is sufficient to defeat recovery even if there is no actual intent to deceive. Olson v. Herman Farmers Mut. Ins. Co. (1925), 187 Wis. 15, 18, 203 N. W. 743; Polar Mfg. Co. v. Integrity Mut. Ins. Co., supra, page 446.

Since the representations in the application relating to use of the automobile by male operators when the age of twenty-five are admittedly false, the first question becomes whether such representations were material to the risk. The question of materiality is one of fact to be determined by the trier of facts. Olson v. Herman Farmers Mut. Ins. Co., supra. The real test is not that the insurer was influenced, but rather that the fact, if truthfully stated, might reasonably have influenced the insurer in deciding whether it should accept or reject the risk. Haas v. Integrity Mut. Ins. Co. (1958), 4 Wis. (2d) 198, 203, 90 N. W. (2d) 146.

The appellant relies on Martell v. Klingman (1960), 11 Wis. (2d) 296, 105 N. W. (2d) 446, in support of his argument that the misstatements were not material to the risk. In that case the applicant signed a form in which the agent had written the information in the spaces provided. One of the spaces in the form asked for a description of all driving violations or convictions, and the agent wrote “none,” although the applicant had, in fact, been fined for speeding and reckless driving in the past. The insurance company made offers of testimony of members of the underwriting firm who passed upon the risk for the company, which offers were rejected by the trial court. In one instance the testimony offered was that had the witness known of two traffic violations, she would have consulted with her superior as to the issuance of the policy, although she was unable to state definitely as to whether or not the policy would have been issued. In the other instance, the offer was to show that in the event the witness had known of these violations it is possible that he might then have disapproved of the issuance of the policy. This court found that there was no error on the part of the trial court in rejecting this testimony inasmuch as it was in indefinite terms and did not purport to establish a probability that an insurer, acting reasonably and naturally in accordance with the usual practice, would have rejected the risk if it had knowledge of the convictions.

The very points in the Mar tell Case relied upon by the appellant serve to distinguish that case from the instant action. Here there was uncontradicted testimony that Burger, as the insuring agent for Central, would not have approved the policy if the questions relating to under twenty-five drivers had been answered in the affirmative. This was not vague and indefinite testimony as in the Martell Case, but was testimony of the agency’s office policy which had been in existence for five years, and which was under the agent’s absolute and final control. Burger testified that there was no appeal from his decision on whether or not to accept a risk. There was other testimony indicating that rejection of applications revealing the presence of drivers under the age of twenty-five in the applicant’s household is a matter of routine office policy. The record is barren of any evidence tending to show that Burger’s practice in this respect is not usual and customary in the industry. We consider that the requirements of the rule set forth in Haas v. Integrity Mut. Ins. Co., supra, have been more than met, and that the misstatement on the application was material to the risk.

In the instant action, the loss occurred while the car was being driven by the plaintiff’s nineteen-year-old son — the very risk which, according to the testimony of Burger, would not have been accepted if the application indicated that the car would be used by a male operator under the age of twenty-five. In this sense, the misstatement was not only material, but directly contributed to the loss.

Appellant contends that the questions pertaining to drivers under the age of twenty-five pertain to rating factors which bear only upon premium adjustment, rather than to basic underwriting considerations. This argument is, at best, an exercise in semantics, for it may be assumed that premium rates are directly proportional to the risk involved. It is a matter of common knowledge that automobile insurance companies charge higher premiums for under twenty-five drivers because of the greater risks involved in insuring such drivers. This was alluded to in Burger’s testimony when he stated that he began the policy of rejecting applications indicating an under twenty-five driver because of his “poor experience” with young drivers.

We determine that the trial court was correct in its finding that the misstatements on the forms signed by the appellant were material to, and increased the risk of loss. Since the appellant is bound by these misstatements, it follows that the judgment of the trial court must be affirmed.

By the Court, — Judgment affirmed.


source: Caselaw Access Project

author: Gordon, J.

license: Public Domain

text:
    Estate of Von Wald: Karns, Commissioner of Motor Vehicle Department, Appellant, v. Von Wald, Respondent.

      April 30

    June 2, 1964.

      For the appellant the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief were George Thompson, attorney general, and Walter J. Cole, deputy attorney general.
    For the respondent there was a brief and oral argument by Richard L. Novotny of Milwaukee.
   Gordon, J.

The county court was without jurisdiction over the person of Mr. Karns, and, accordingly, the order must be reversed.

Mr. Karns was served with an order to show cause, and upon the hearing he appeared specially, contending that there was no jurisdiction over his person. The trial court should have sustained the special appearance on such ground.

Under sec. 253.10 (2) (a), Stats., the issuance of a formal certificate of title was not “necessary for the complete administration of the estate,” and, therefore, the court acquired no jurisdiction over the appellant’s person by the service of the order to show cause. Madison v. Pierce (1954), 266 Wis. 303, 306, 62 N. W. (2d) 910. In Eide v. Skerbeck (1943), 242 Wis. 474, 482, 8 N. W. (2d) 282, this court said:

• “Jurisdiction of the person can only be acquired by service of a summons in the manner prescribed for personal service. This is plain and fundamental, even where motion to make one a party or order to show cause why one should not be made a party is personally served.”

See also State v. Ramsay (1962), 16 Wis. (2d) 154, 166, 114 N. W. (2d) 118.

Since we have concluded that there was no jurisdiction over the person of Mr. Karns, we find no necessity for addressing ourselves to the question of whether there was jurisdiction over the subject matter.

By the Court. — Order reversed, with directions to dismiss the proceedings against the appellant.


author: Currie, C. J.

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

      April 30

    June 2, 1964.

      For the appellant the cause was argued by Robert D, Martinson, assistant attorney general, with whom on the brief were George Thompson, attorney general, and William A. Plats and LeRoy L. Dalton, assistant attorneys general.
    No brief or appearance for the respondent.
   Currie, C. J.

We will first consider the motion to dismiss because of mootness. Generally, if a question becomes moot through a change in circumstances, it will not be determined by the reviewing court. Lamoreux v. Williams (1905), 125 Wis. 543, 104 N. W. 813; State ex rel. Schertz v. Spiegel (1920), 171 Wis. 260, 176 N. W. 1022; 6 Wisconsin Law Review (1930), 101. It is a well-recognized exception that a reviewing court will retain jurisdiction and decide the issue if the question is one of great public importance. Carlyle v. Karns (1960), 9 Wis. (2d) 394, 101 N. W. (2d) 92; Wisconsin E. R. Board v. Allis-Chalmers W. Union (1948), 252 Wis. 436, 32 N. W. (2d) 190; Doering v. Swoboda (1934), 214 Wis. 481, 253 N. W. 657.

The issues presented by this appeal are publici juris because vital to the enforcement of the Thomson Anti-Gambling Law in Milwaukee county, which has a population of slightly in excess of 1,000,000 people. Even though we have determined that we should not pass on the merits, we deem it preferable to reverse under sec. 251.57, Stats, (formerly Supreme Court Rule 32), rather than dismiss the appeal as moot. The reason for this is that if the appeal were to be dismissed the decision and order below would be left standing to be cited in future cases at the trial level. Therefore, defendant’s motion to dismiss is denied.

When we turn to the merits, these two issues are presented :

(1) Was the district attorney or the corporation counsel the proper officer to institute the proceeding ?

(2) If it be determined that the district attorney was not authorized to institute the proceeding, did this irregularity deprive the circuit court of jurisdiction to grant the relief demanded ?

Because of the default of defendant, however, we only have before us the brief of the attorney general. A majority of the court are of the opinion, therefore, that because of this we should not decide the appeal on the merits, but should reverse under sec. 251.57, Stats., which provides:

“When a cause is submitted or presented by counsel for appellant or plaintiff in error, but not by the opposing party, the judgment or order appealed from may be reversed as of course, without argument.”

By the Court. — Order reversed.


author: Fairchild, J.

text:
    State ex rel. Neelen and others, Respondents, v. Lucas and others, constituting the Board of Trustees of the Wisconsin Retirement Fund, and another, Appellants.

      April 30

    June 2, 1964.

      For the appellants there was a brief and oral argument by Maurice B. Pasch of Madison.

      For the respondents there was a brief by Stewart G, Honeck, attorney, and Honeck, Mantyh & Arndt of counsel, all of Milwaukee, and oral argument by Stewart G. Honeck..

   Fairchild, J.

The purpose of the Wisconsin Retirement Fund is to provide for the payment of annuities and other benefits to employees and beneficiaries of employees of the state and other units of government. A retirement annuity or other benefit is determined upon the basis of the total amount of credits to the particular employee. Credits arise from contributions which have been made pursuant to statute by the participating employee and also from amounts which his employer unit is obliged to fund by contributions,, One type of credit provided by the employer unit is past service credit in those instances where the employee had been employed by the employer unit before coming under the plan.

The interest of an employee in having all credits to which he is entitled fully recognized is obvious.

Supreme court justices and circuit judges were first made eligible to participate as state employees on January 1, 1952. They were given prior service credit as of that date for state service prior thereto as supreme court justice or circuit judge.

The provision was amended in 1955 so as to include in such prior service credit service as a county judge.

In 1957, it was amended so as to include in such prior service credit service “as full-time judge of a court of record, municipal or inferior.”

Petitioners are circuit judges in the Second judicial circuit (Milwaukee county). Two of them had previously been judges of the civil court of Milwaukee county and one of them had been a judge of the district court of Milwaukee county. Thus each of petitioners had served as a “full-time judge of a court of record, municipal or inferior.” By the terms of sec. 66.902 (3) (n), Stats., as amended by ch. 379, Laws of 1957, each was clearly entitled to past service credit in accordance with that statute.

The board, however, has refused to recognize their entitlement, pointing out that the two petitioners who had been judges of the civil court had participated during their service on that court in the retirement system for employees of Milwaukee county, and the petitioner who had been a judge of the district court had participated during his service on that court in the retirement system for employees of the city of Milwaukee. Those retirement systems are independent of the Wisconsin Retirement Fund. In general, the government units (“municipalities”) which may participate as employers in the Wisconsin Retirement Fund include counties and cities, but Milwaukee county and the city of Milwaukee are not included. The board considered that if petitioners’ services on those courts were reflected in credits for them in the Wisconsin Retirement Fund as well as in the Milwaukee systems, a duplication would result which the board considered as a departure from precedent and as not having been contemplated by the legislature.

It is true that the board can point to facts indicating that those who formulated the provisions of ch. 379, Laws of 1957, overlooked the possibility that there were circuit judges who had served as judges of municipal or inferior courts of record in Milwaukee county and to facts from which it could be inferred that had attention been called to this feature, the statute would have been drawn so as to exclude them. These facts are as follows:

1. The joint survey committee on retirement systems considered Bill No. 60, S., which became ch. 379, Laws of 1957. Its report appeared in the Senate Journal on March 21, 1957. In analyzing the probable cost of the proposed additional past service credits, the report stated:

“ ‘It appears that only one person would be affected by this bill initially. This individual was a municipal judge for about 10 years up to 1952, and since then he has been a circuit judge. The cost to the state for prior service credits for the time served as a municipal judge by this individual would be $2,963.
“ ‘Additional costs could result if additional persons who had been judges of such courts prior to January 1, 1952, and had not previously received such credit subsequently became circuit judges or supreme court justices. It is impossible to estimate the cost of such potential credits.’ ”

The particular judge referred to was Judge Goodland of Racine county and Bill No. 60, S., had been introduced by the senator from that county. The report demonstrates that the committee was unaware that there were other circuit judges then in office to whom the terms of the bill as drawn would apply, and apparently it was a fact that there were no others outside of Milwaukee county. The report did recognize that other persons who had served as judges of municipal or inferior courts of record might later become circuit judges, and they would be entitled to past service credits under the bill.

2. After enactment of ch. 379, Laws of 1957, one or more of petitioners asserted claims under it. Bill No. 654, S., 1957 session, was then introduced by the committee on legislative procedure, considered by the joint survey committee, and passed by each house by unanimous ■ vote of those present and voting. The bill would have excluded from prior service credit as of January 1, 1952, “service for which retirement credits have been earned or granted under a public retirement system other than the Wisconsin retirement fund.” The report of the joint survey committee pointed out that it had been “recently discovered that the prior service credit provisions of the Wisconsin Retirement Fund could conceivably be construed to grant such credits with respect to service covered by other systems.” The committee recommended passage, and said: “It is very clear that duplication of coverage which might be possible under a conceivable construction of these provisions, was never intended in connection with the granting of prior service credits to judges.”

The bill received a “pocket veto.” The then governor neither signed nor returned the bill, but since the legislature prevented its return by adjournment, it did not become law.

Ch. 379, Laws of 1957, grants certain prior service credit as of January 1, 1952, to a circuit judge for service as full-time judge of a court of record, municipal or inferior. Each of petitioners fits its terms.

A statute or portion thereof is ambiguous when it is capable of being understood by reasonably well-informed persons in either of two or more senses. There is no ambiguity in the literal terms of the provision under consideration and it is often said that when the words are plain there is no room for judicial construction.

A court may also enlarge or restrict in meaning some of the words of a statute in order to harmonize them with the manifest legislative intent of the entire statute.

An obscurity of meaning may also exist, and call for judicial construction where the literal sense of the statutory language would work an absurd result.

Primarily, however, the meaning must be read from the language chosen by the legislature, and the courts are not free to determine whether different provisions would have been enacted if the legislators had given some or greater attention to the application of the statute upon a particular set of facts.

The principle which courts follow in confining themselves, as closely as possible to the terms of a statute, and resorting to other sources of interpretation only where the language leaves a doubt, has been well explained by Mr. Justice Frankfurter:

“Even within their area of choice the courts are not at large. They are confined by the nature and scope of the judicial function in its particular exercise in the field of interpretation. They are under the constraints imposed by the judicial function in our democratic society. As a matter of verbal recognition certainly, no one will gainsay that the function in construing a statute is to ascertain the meaning of words used by the legislature. To go beyond it is to usurp a power which our democracy has lodged in its elected legislature. The great judges have constantly admonished their brethren of the need for discipline in observing the limitations. A judge must not rewrite a statute, neither to enlarge nor to contract it. Whatever temptations the statesmanship of policymaking might wisely suggest, construction must eschew interpolation and evisceration. He must not read in by way of creation. He must not read out except to avoid patent nonsense or internal contradiction. ‘If there is no meaning in it,’ said Alice’s King, ‘that saves a world of trouble, you know, as we needn’t try to find any.’ Legislative words presumably have meaning and so we must try to find it.”

Although the equity or wisdom of reflecting in retirement provisions for a circuit judge a period of past service which has already been reflected to his advantage in retirement provisions under a different system is debatable, the result is neither patently out of harmony with the purposes of the state retirement system, nor absurd. There being no ambiguity to be found by any test, there is no occasion for judicial construction. Any inferences of mistake or inadvertence which might be drawn from the legislative history relied on by the board are thus irrelevant as a matter of law.

Therefore, the judgment of the circuit 'court must be affirmed.

The board appealed from the decision of the circuit court rather than from the judgment. The judgment has, however, been entered, and respondents have argued its merits without objection. We therefore have jurisdiction over both the judgment and the parties.

By the Court. — Judgment affirmed.

GoRdon, J., took no part.

       Sec. 66.90 (1), Stats.

       Sec. 66.902 (3) (n), Stats. 1951, created by ch. 475, Laws of 1951.

       Sec. 66.902 (3) (n), Stats. 1955, as amended by ch. 347, Laws of 1955.

       Sec. 66.902 (3) (n), Stats. 1957, as amended by ch. 379, Laws of 1957.

       Sec. 66.902, Stats.

        State ex rel. West Allis v. Dieringer (1957), 275 Wis. 208, 218, 81 N. W. (2d) 533.

        Burgess v. Dane County (1912), 148 Wis. 427, 435, 134 N. W. 841; Dumore Co. v. Smader (1944), 245 Wis. 300, 302, 13 N. W. (2d) 915; Schoenburg v. Klapperich (1941), 239 Wis. 144, 148, 300 N. W. 237.

        Estate of Spooner (1920), 172 Wis. 174, 179, 177 N. W. 598; State ex rel. Thieme v. Gregory (1930), 202 Wis. 326, 328, 232 N. W. 546.

         Rice v. Ashland County (1900), 108 Wis. 189, 192, 84 N. W. 189; Worachek v. Stephenson Town School Dist. (1955), 270 Wis. 116, 124, 70 N. W. (2d) 657; Isaksen v. Chesapeake Instrument Corp. (1963), 19 Wis. (2d) 282, 290, 120 N. W. (2d) 151.

       Frankfurter, Some Reflections on the Reading of Statutes (1947), 1, 13.

        Estate of Burns (1964), 23 Wis. (2d) 175, 179, 127 N. W. (2d) 239.


author: Hallows, J.

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

      May 1

    June 2, 1964.

      For the appellant there was a brief by Eisenberg & Kletzke, attorneys, and Edwin A. Star of counsel, all of Milwaukee, and oral argument by Mr. Star.

    For the respondent the cause was argued by Donald W. Steinmetz, assistant district attorney of Milwaukee county, with whom on the brief were George Thompson, attorney general, and William J. McCauley, district attorney.
   Hallows, J.

The case turns upon an interpretation of sec. 176.32 (1), Stats. 1961. The section prohibits persons under the age of twenty-one from being on tavern premises excepting three general classifications, i.e., (1) a minor who is a resident, employee, or a bona fide lodger or boarder on the premises of such licensed person, (2) a minor accompanied by an adult parent, guardian, or spouse, (3) a minor engaged in bona fide business on the premises other than amusement or the purchase, receiving or consumption of edibles or beverages.

It is argued by the defendant the minor band members were employees and therefore came under the exception. We must disagree. We think the exception of an employee because of its association with the words “resident” or “bona fide lodger or boarder” meant an employee who had a more or less permanent connection with the premises by virtue of some relationship with the licensed person. Over this class of people the tavernkeeper would have some general supervision and control and they would essentially not be on the premises as a customer or patron. An employee of the licensed person would fit this class; an employee of another might not. The minor band members were not employees of the defendant and hence the exclusion does not apply.

The members of the band were not patrons or customers and if the section is to apply to them they must come under the exclusion of transacting a bona fide business other than amusement or the purchase, receiving, or consumption of edibles or beverages. We view the word “amusement” as referring to the same class of activity as “purchase, receiving, or consumption of edibles or beverages.” Such activities refer to the reason or purpose of being a patron or customer. The band members were not in the tavern to amuse or enjoy themselves but to work by furnishing music for the amusement and enjoyment of others. If a tavernkeeper may hire a minor to work in the tavern, it is not illogical that he may hire a band composed of some minors to play in his tavern.

The legislative history of the statute bears out the interpretation that the section was aimed at minor patrons. Subsequent amendments were aimed at promoting the enforcement of the statute. As originally proposed, the statute applied to every place licensed to sell intoxicating liquor. It was amended before it was originally enacted so the terms would not apply to hotels, restaurants, grocery stores, and bowling alleys. By amendment in 1943, drugstores and railroad cars were exempted. In 1951 “regularly established athletic fields or stadiums” were removed from the purview of the statute and in 1963 ski chalets were likewise exempted. The above places are not the type of place generally known as a tavern but are mostly places where persons under twenty-one years of age go as patrons to be amused or amuse themselves.

As originally enacted the statute imposed a criminal penalty upon a tavernkeeper who allowed a minor “to linger or loiter in or about any barroom or other room on such premises ...” In 1943 an amendment replaced the “to linger or loiter” clause with the words “to remain” and added the clause which is here under review. In 1951 the statute was again amended and the language “to remain in any barroom or other room on such premises” was replaced with “to enter or be on such licensed premises.” These amendments all imply a purpose to keep minors as patrons or customers out of taverns.

The section must be read in its relation with other statutes governing minors and their work. Of significance is sec. 103.69 (3) (1), Stats., which prohibits the employment of minors under the age of eighteen in places where liquor is sold. The statute also prohibits other employment of minors in specified employment below certain ages. This statute makes no reference to minors playing in bands nor does it prohibit minors between the ages of eighteen and twenty-one being employed or from working in a tavern. If a twenty-year-old minor was prohibited from playing in a band in a tavern one would expect to find the prohibition in this section. We cannot read such a prohibition in sec. 176.32 (1) dealing with the presence of minors in places where intoxicating liquor is sold.

It is a well-known canon of construction that a criminal statute must be strictly construed in favor of the accused. The amusement clause in the section is at best ambiguous. We hold the statute is not violated by the presence of a minor in a band furnishing music in a tavern.

By the Court.- — Judgment reversed.

       “176.32 Presence in places of sale prohibited; penalty. (1) Every keeper of any place, of any nature or character whatsoever, for the sale of any intoxicating liquor, who shall either directly or indirectly suffer or permit any person of either sex under the age of 21 years, unaccompanied by his or her parent, guardian or spouse, of whom one shall be 21 years of age, or suffer or permit any person to whom the sale of any such liquors has been forbidden in the manner provided by law, who is not a resident, employe, or a bona fide lodger or boarder on the premises of such licensed person, to enter or be on such licensed premises for any purpose, excepting the transaction of bona fide business other than amusement or the purchase, receiving or consumption of edibles or beverages, shall, for every such offense, be fined not exceeding $250 or imprisoned not exceeding 60 days; and any such person so remaining as aforesaid, who is not a resident, employe, or a bona fide lodger or boarder on the premises, or who is not accompanied by his or her parent, guardian or spouse, of whom one shall be 21 years of age, shall be fined not more than $20 or imprisoned not exceeding 30 days. This section shall not apply to hotels, drug stores, grocery stores, bowling alleys, cars operated on any railroad, regularly established athletic fields or stadiums nor to premises operated under both a ‘Class B’ license and a restaurant permit where the principal business conducted therein is that of a restaurant. It shall be presumed, however, where such premises are so operated under both a ‘Class B’ license and a restaurant permit, that the principal business conducted therein is that of the sale of intoxicating liquor, until such presumption is rebutted by competent evidence.”

       Ch. 459, Laws of 1943.

       Ch. 734, sec. 28r, Laws of 1951.

       Ch. 371, Laws of 1963.

       Ch. 13, Laws of 1933-1934 (Sp. Sess.).

       Ch. 215. sec. 2. Laws of 1951.


author: DieteRich, J.

text:
    Gregory III and wife, Respondents, v. Madison Mobile Homes Park, Inc., Appellant.

      May 1

    June 2, 1964.

      For the appellant there was a brief and oral argument by Vernon Molbreak of Madison.
    For the respondents there was a brief by Barbee & Jacobson of Milwaukee, and oral argument by Lloyd A. Barbee and Thomas M. Jacobson.

    A brief amicus curiae was filed by Irvin B. Chame, Ben Chernov, and H. A. Kovenock, all of Milwaukee, for the Milwaukee Jewish Council.
   DieteRich, J.

The trial court stated that the sole issue on the demurrer was whether a trailer park is a “public place of accommodation” within the meaning of sec. 942.04, Stats. That section provides in part as follows:

“Denial of rights. (1) Whoever does any of the following may be fined not more than $200 or imprisoned not more than 6 months or both:
“(a) Denies to another or charges another a higher price than the regular rate for the full and equal enjoyment of any public place of accommodation or amusement because of his race, color, creed, national origin or ancestry; or . . .
“(2) A public place of accommodation or amusement includes inns, restaurants, taverns, barber shops and public conveyances.
“(3) The person aggrieved may recover damages of not less than $25 and costs in a civil action.”

The trial court in a written memorandum decision concluded that since the record on demurrer contained no information as to the characteristics and incidents of trailer parks in general, and Madison Mobile Homes Park in particular, the matter could not be disposed of summarily on demurrer.

The general rule is that a complaint, when attacked by demurrer, should be liberally construed and sustained if it expressly, or by reasonable inference, states any cause of action. Rogers v. Oconomowoc (1962), 16 Wis. (2d) 621, 632, 115 N. W. (2d) 635.

Sec. 942.04, Stats., has been on the books in essentially its present form since before the turn of the century, and despite its longevity, the section has been before this court on only two occasions — and neither case is determinative upon the questions raised in the instant action.

The appellant contends that in order for a mobile-home park to be classed as a place of public accommodation, it must be determined that it is similar and of like kind to inns, restaurants, taverns, barbershops, and public conveyances (the facilities specifically named in the statute). Appellant argues at length as to the dissimilarity between a trailer park and the facilities enumerated in the statute, citing cases dealing with apartment buildings, hotels, disposition and rental of private real estate, etc. Suffice it to say that these cases — which are all from other states, and not necessarily binding on this court — indicate that hotels and motels are places of public accommodation under the statute, whereas an apartment building is not. However, the record on the demurrer is completely barren as to any evidence of the nature, characteristics, and incidents of operation of a trailer park.

The only issue before this court is whether or not the complaint states any cause of action. This court is strictly confined to the four corners of the complaint on a demurrer. The subject matter of the instant action is far too vital to be summarily disposed of by demurrer upon inadequate information contained in the record on demurrer. State v. Texaco (1961), 14 Wis. (2d) 625, 632, 111 N. W. (2d) 918. Therefore, under our liberal rules of pleading as defined in Rogers v. Oconomowoc, supra, it is clear that the plaintiffs’ complaint is sufficient to state a cause of action. The order of the circuit court overruling the defendant’s demurrer is affirmed.

By the Court. — Order affirmed.

        Bryan v. Adler (1897), 97 Wis. 124, 72 N. W. 368, held that the proprietor of a public restaurant was liable in damages when one of his employees refused to serve the plaintiff because of his race. Jones v. Broadway Roller Rink Co. (1908), 136 Wis. 595, 118 N. W. 170, imposed liability under the statute as it then existed upon the proprietor of a roller rink.


author: GORDON, J.

text:
    Thorp Small Business Investment Corporation, Plaintiff and Respondent, v. Gass and others, Defendants: Eau Claire Tile & Terrazzo, Inc., Defendant and Appellant.

      May 1

    June 2, 1964.

      For the appellant there were briefs by Wahl & Riley of Eau Claire, and oral argument by Victor T. Wahl.

    For the respondent there was a brief by Charles G. Senn, and oral argument by Arthur B. Sullivan, both of Eau Claire.
   GORDON, J.

The trial court was without jurisdiction to correct the judgment (1) unless such amendment was made within the year provided for in sec. 269.46 (1), Stats., or (2) unless the correction was to make the judgment conform to what the court had actually pronounced. We are persuaded that the amendment of the judgment did not qualify within either of these requirements, and, accordingly, there was no jurisdiction to amend the judgment.

1. The Application of Sec. 269.46 (1), Stats.

This section of the statutes authorizes the court to relieve a party from a mistake “at any time within one year after notice.” The one year starts to run after notice of the judgment or order from which relief is sought.

“Knowledge” is the equivalent of “notice” under sec. 269.46 (1), Stats. Langlade Realty Co. v. Magee (1914), 156 Wis. 457, 461, 145 N. W. 1101; Bloor v. Smith (1901), 112 Wis. 340, 351, 87 N. W. 870. The statute does not refer to “notice of entry of judgment” but, on the contrary, refers only to notice of the judgment.

In the instant case, there was a verbal pronouncement by the court after a hearing on May 2, 1962, which permitted Thorp’s counsel to prepare findings of fact, conclusions of law, and a judgment. From the record it is clear that findings of fact and conclusions of law were signed by the trial court on May 2, 1962. However, there is an ambiguity surrounding the date of the actual judgment. An examination of the record suggests that a judgment was signed by the clerk of the Chippewa county court on May 2, 1962. However, the date of May 2, 1962, was stricken, and the date of June 14, 1963, was substituted therefor, with the initials of the court clerk appearing alongside.

While there is ambiguity concerning the date of the judgment, there is no ambiguity concerning the fact that a notice of entry of judgment was dated May 3, 1962, and addressed to various attorneys, including the attorneys for the appellant, Eau Claire Tile. This notice was signed by Thorp’s attorney and gives notice to the effect that the judgment was entered on May 2, 1962.

While there may be a scintilla of doubt that Eau Claire Tile actually received notice of the entry of judgment and that a judgment was in fact entered on May 2, 1962, there can be no doubt whatsoever that Thorp had notice of the order for judgment and was chargeable with the entry of such judgment. If there was a failure to prepare a judgment or to enter it, it was an error attributable to Thorp.

Under the foregoing circumstances, we conclude that Thorp had notice of the judgment within the meaning of sec. 269.46 (1), Stats., not later.than May 3, 1962. Therefore, the amendment of the judgment on October 29, 1963, was beyond the one year authorized by sec. 269.46 (1).

2. The Original Pronouncement of the Court.

In its order amending the judgment on October 29, 1963, the learned trial court stated that “the judgment as entered was in error through the mistake and excusable neglect of said plaintiff and did not conform to the judgment as originally entered.” (Emphasis added.) The record contradicts the accuracy of the italicized portion of the foregoing quotation.

At the conclusion of the hearing on May 2, 1962, the record discloses that the following proceedings occurred:

“The Court: Well, I don’t think there is any sufficient showing to burden him with receiver. There is nothing before me to show he was insecure other than the taxes were not paid. And we do have the insurance now, and the judgment of foreclosure is granted, based on the balance due unpaid is found to be $17,003.95 as of May 2, 1962, including interest. But the question for receiver is denied. Does that take care of everything ?
“Mr. Senn: Yes, Your Honor.
“ (Thereupon, testimony was concluded.) ”

It is patently clear that the foregoing did not incorporate a statement as to the priorities of lien claimants. The written findings of fact and conclusions of law, which were dated the same day as the court’s pronouncement, granted a priority to the appellant, Eau Claire Tile, and we must conclude that the statement of priorities contained in the written findings are not contradicted by the “pronouncement” of the trial court.

In Fischbeck v. Mielenz (1916), 162 Wis. 12, 17, 154 N. W. 701, and reaffirmed by State ex rel. Hall v. Cowie (1951), 259 Wis. 123, 128, 47 N. W. (2d) 309, the governing rule is set forth:

“After the lapse of the term at which judgment is entered and the expiration of one year thereafter, the circuit court may correct a mistake in the entry of the judgment so as to make it conform to the judgment actually pronounced by the court. It cannot modify or amend the judgment to make it conform to what the court ought to have adjudged or even intended to adjudge.”

In the instant case, the amendment of the judgment cannot fairly be said to have been a correction which was designed to make the written judgment conform to the actual pronouncement of the court. As noted in the Fischbeck Case, it is not sufficient that the purpose be to correct the judgment so as to make it conform to what was intended or what should have been adjudged. The term and the year having expired, the court was powerless to make the change.

The net result might appear to be harsh and represent a windfall to one not entitled thereto. See, e.g., In re Cudahy Family Trust (1963), 22 Wis. (2d) 198, 125 N. W. (2d) 344, and Green Tree Estates, Inc., v. Furstenberg (1963), 21 Wis. (2d) 193, 124 N. W. (2d) 90. The judgment could not be altered in the case at bar because the trial court was without jurisdiction at the time of the proposed amendment.

By the Court. — Order reversed.


author: Beilfuss, J.

text:
    Cheetham and wife, Appellants, v. Piggly Wiggly Madison Company, Respondent.

      May 1

    June 2, 1964.

      For the appellants there was a brief by Walstead, Anderson, Bylsma & Eisenberg and Donald S. Eisenberg, all of Madison, and oral argument by Donald S. Eisenberg.

    For the respondent there was a brief by John A. Hansen and Rieser, Stafford, Rosenbaum & Rieser, all of Madison, and oral argument by Mr. Hansen.

   Beilfuss, J.

On this appeal the plaintiff challenges the instruction given the jury concerning her contributory negligence and asks us to find her free of contributory negligence as a matter of law.

The Instruction.

The plaintiff complains of that portion of the instruction set out in the margin which informs the jury that it was plaintiff’s “duty to guard against any injury to herself so far as by reasonable care she could protect herself.” Plaintiff contends that the following sentence should have been substituted:

“If you find that Marion Cheetham did observe any dangers open and obvious to her then the test to be applied is whether a reasonably prudent person would, under the circumstances, use such place for walking.”

The thrust of plaintiff’s argument is that the use of the word “guard” was improper because the word connotes a higher standard of care than the law required of her. Portions of most instructions taken out of context are subject to the same objection. The import of the instruction viewed as a whole is that plaintiff had a duty to use ordinary care for her own safety. Willenkamp v. Keeshin Transport System, Inc. (1964), 23 Wis. (2d) 523, 127 N. W. (2d) 804.

Plaintiffs Contributory Negligence.

In order for her attack on the jury’s verdict to be successful, plaintiff must overcome a substantial hurdle. When a jury verdict is attacked we inquire only whether there is any credible evidence that, under any reasonable view, supports the verdict. This is especially so when the verdict has the trial court’s approval. Olson v. Milwaukee Automobile Ins. Co. (1954), 266 Wis. 106, 62 N. W. (2d) 549, 63 N. W. (2d) 740; Hibner v. Lindauer (1963), 18 Wis. (2d) 451, 118 N. W. (2d) 873.

Here plaintiff and her husband walked from their car to the store without incident. Plaintiff’s husband returned safely even though he had a bag of groceries under his arm. Thus the parking lot was not so slippery that it could not be traversed with safety in the exercise of ordinary care. This evidence will sustain a jury verdict of failure to exercise reasonable care for one’s own safety. Filipiak v. Plombon (1962), 15 Wis. (2d) 484, 113 N. W. (2d) 365; Mustas v. Inland Construction, Inc. (1963), 19 Wis. (2d) 194, 120 N. W. (2d) 95, 121 N. W. (2d) 274.

Plaintiff cites Paepcke v. Sears, Roebuck & Co. (1953), 263 Wis. 290, 57 N. W. (2d) 352; Schwenn v. Loraine Hotel Co. (1961), 14 Wis. (2d) 601, 111 N. W. (2d) 495; and Zernia v. Capitol Court Corp. (1963), 21 Wis. (2d) 164, 124 N. W. (2d) 86, 125 N. W. (2d) 705, in support of her argument that we should find her free of contributory negligence as a matter of law. A careful reading of those cases will disclose that in none of them was a plaintiff held free of contributory negligence as a matter of law.

In the Paepcke Case the jury had returned a verdict finding plaintiff free of contributory negligence. We refused to find the plaintiff guilty of contributory negligence as a matter of law.

In the Schwenn Case all parties were found negligent and we refused to disturb the apportionment, while reversing on the ground that the negligence of the two defendants in that case should not have been combined for purposes of comparison with that of the plaintiff.

In the Zernia Case the jury found the plaintiff free of contributory negligence but also found that the defendant did not violate the safe-place statute. The plaintiff’s contributory negligence was not involved on appeal. Rather than supporting the plaintiff’s case both Paepcke and Schwenn weaken it. This court does not sit as a jury in safe-place cases.

Plaintiff argues that the jury’s finding of contributory negligence was actually one of assumption of risk, which, if not unreasonable, is not a defense to a violation of the safe-place statute. Meyer v. Val-Lo-Will Farms (1961), 14 Wis. (2d) 616, 111 N. W. (2d) 500. In that portion of the instructions quoted earlier the trial judge made it clear that assumption of risk, apart from that which also constitutes contributory negligence, was not in the case. By the instruction she would substitute for the one given, plaintiff impliedly and properly concedes that the reasonableness of proceeding in the face of a known hazard is a jury question.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.

       “The plaintiff in this case, Marion Cheetham, had a duty to use ordinary care for her own safety and protection and to that end to observe the area referred to in the evidence, its immediate surroundings and all other conditions, including the weather, surrounding her while walking in the area. She was also under a duty to observe any dangers which were open and obvious to her if she was using reasonable care and caution for her own safety and protection. It was her duty to guard against any injury to herself so far as by reasonable care she could protect herself. . . .
      “The mere fact that the plaintiff and her husband parked their car and alighted therefrom and proceeded to walk towards the store on the roadway, in whatever condition you may find it to have been, is not in itself evidence of negligence.”


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

text:
    Eau Claire County, Appellant, v. Milwaukee County, Respondent.

      April 21

    June 5, 1964.

      For the appellant there was a brief and oral argument by John D. Kaiser of Eau Claire, special counsel.

      For the respondent there was a brief by Robert P. Russell, corporation counsel, and James J. O’Donnell, first ■ assistant corporation counsel, and oral argument by Mr. O’Donnell.

   Currie, C. J.

The issue on this áppeal is whether the evidence at the hearing before the department established as a matter of law that Mrs. Carden had gained a legal settlement, under sec. 49.10 (4), Stats. 1955, in Milwaukee at the expiration of the one-year period beginning April 27, 1956, when she first commenced to reside there.

In two well-considered decisions of this court authored respectively by Mr. Justice (later Chief Justice) Brown and Mr. Justice Wingert it was held that the term “residence” as used in sec. 49.10, Stats. 1955, was the equivalent of domicile. Carlton v. Department of Public Welfare (1956), 271 Wis. 465, 468, 74 N. W. (2d) 340, and Marathon County v. Milwaukee County (1956), 273 Wis. 541, 544, 545, 79 N. W. (2d) 233. To acquire a domicile, a person must establish a dwelling place with intention of making it his home. Marathon County v. Milwaukee County, supra, at page 545.

Implicit in the decision of the department in the instant case was the determination that Milwaukee constituted Mrs. Carden’s domicile from April 27, 1956, to March 31, 1957, when she left that city and went to Eau Claire taking with her all her personal belongings except the TV set. This is because such decision makes it clear that, if the department had found that she had possessed an unequivocal intent to return to Milwaukee to reside during her absence from the city for the period of March 31, 1957, to April 27, 1957, it would have found she had established a legal settlement in Milwaukee for the purposes of sec. 49.10 (4), Stats. 1955. This is in keeping with the well-recognized principle that though both personal presence and intention are required to establish a domicile, a temporary absence with intent to return does not affect a change of domicile. Miller v. Sovereign Camp W. O. W. (1909), 140 Wis. 505, 508, 122 N. W. 1126; 17A Am; Jur., Domicil, p. 214, sec. 23.

There is an equally well-recognized principle that a domicile once established continues until it is superseded by a new domicile. Will of Eaton (1925), 186 Wis. 124, 133, 202 N. W. 309; Seibold v. Wahl (1916), 164 Wis. 82, 85, 159 N. W. 546; Miller v. Sovereign Camp W. O. W., supra, at page 509, 122 N. W. 1126; 17A Am. Jur., Domicil, p. 207, sec. 17; 28 C. J. S., Domicile, p. 30, sec. 13 a. It is highly significant that Mr. Justice Wingert’s opinion in Marathon County v. Milwaukee County, supra, declared (p. 545) :

“A domiciliary residence once established is not lost until a new one is acquired. Will of Eaton, 186 Wis. 124, 133, 202 N. W. 309; Restatement, Conflict of Laws, p. 47, sec. 23.”

Thus it is immaterial whether, during Mrs. Carden’s absence from Milwaukee from March 31 to April 27, 1957, she had an unequivocal intent to return to Milwaukee to reside so long as she did not acquire a new domicile elsewhere during that twenty-seven-day period. The evidence adduced at the hearing is wholly insufficient to support a finding that she had gone to Eau Claire at this time with intent to establish a permanent residence there. Accordingly by April 27, 1957, she had maintained her domicile or residence for one year in Milwaukee and obtained legal settlement there under sec. 49.10 (4), Stats. 1955. This legal settlement continued to the time that Eau Claire county supplied the relief for which reimbursement is sought.

It is conceded that under our present public-assistance statutes Mrs. Carden would not have acquired a legal settlement in Milwaukee. The 1959 legislature repealed and recreated sec. 49.10, Stats. 1955, by enacting ch. 102, Laws of 1959. Among the changes made thereby was the addition to sec. 49.10 of sub. (12) (c) which provides, “ ‘Residence’ is the voluntary concurrence of physical presence with intent to remain in a place of fixed habitation. Physical presence shall be prima facie evidence of intent to remain.” This 1959 change in the statute has no application to the instant controversy because the relief was supplied to Mrs. Carden in 1958.

Because Mrs. Carden had her legal settlement in Milwaukee at the time plaintiff Eau Claire county furnished her with relief, plaintiff county was entitled to reimbursement therefor.

By the Court. — Judgment reversed with directions to the circuit court to reverse the order of the department and remand to that agency for the entry of a proper order ordering defendant county to reimburse plaintiff.

Hallows, J.

(dissenting). This case was tried on the issue of whether Goldie Carden had the necessary intention to maintain a residence in Milwaukee county for one whole year so as to gain a legal settlement under sec. 49.10 (4), Stats. The majority opinion holds that a person who no longer has an intention to make Milwaukee her residence and is not physically present in the county nevertheless gains a legal settlement in that county if she has not acquired a domicile elsewhere. The cases previously decided by this court do not so hold.

The question is simply the meaning of the language “who resides in any municipality . . . one whole year” in sec. 49.10 (4), Stats. In construing sec. 49.10, this court as early as Waushara County v. Calumet County stated the meaning of residing or residence for legal settlement purposes was governed by the same principles which determine residence for divorce and voting purposes. This concept of residence was affirmed in Milwaukee County v. State Department of Public Welfare. Two months later in Carlton v. State Department of Public Welfare relied on by the majority, this court in considering the nature of the intention necessary for residence to ripen into a legal settlement stated it was “residence with the present intent of making the place one’s home,” and in that context equated residence with domicile as generally used by the courts. The opinion stressed that “resides” meant more than “lives in” or exists and nothing short of actual abode with intention of permanent residence would fulfil the statute. This intention to remain in a fixed habitation is necessary to establish domicile which the court said is the meaning of “resides” in the statute. The statute requires such residence for one whole year which to me requires the actual intention to exist for one whole year, not for a fragmentary period of time sufficient to qualify for the establishment of a domicile. The majority substitutes for this requirement a rule of conflicts of law that once a person has acquired a domicile he does not lose it until he acquires another.

Marathon County v. Milwaukee County relied on by the majority, did not decide this point as relating to legal settlement. The issue in that case was whether a person had a legal settlement in Marathon county. He had resided there four months, and then moved to Milwaukee where he lived some four years. The disputed point over which the court was divided was whether or not a person on parole had the legal capacity to formulate an intent to change his residence. This court held a residence could and had been established in Milwaukee by the parolee before his Wausau residence ripened into a legal settlement. The well-known rule a domiciliary residence once established is not lost until a new one is acquired has no application to the statutory requirements for establishing a legal settlement so as to render a county liable for public assistance. I cannot agree that sec. 49.10, Stats., means one can establish legal settlement by counting as part of the one-year period the time during which the person neither has the intention to remain nor any physical presence in the county.

It is significant that sec. 49.10 (7), Stats., provides every legal settlement continues until it is lost by voluntarily acquiring a new one in this state or by voluntarily residing for one whole year elsewhere than in the municipality or county in which such settlement exists. This section does not speak in terms of losing or acquiring a domicile but of one whole year residence. This language prevents the importation of the law of domicile and conflicts of law into the statute by reference and analogy. In my opinion the evidence sustains the conclusion of the department that Mrs. Carden did not have the requisite intention to gain a legal settlement for “one whole year” and I would affirm.

       This statute provides in part as follows: “Every person (except as otherwise provided in this section) who resides in any municipality one whole year without receipt of aid under this chapter gains a legal settlement therein; . . .” The stated exceptions to this quoted provision are immaterial to the instant controversy.

       (1941), 238 Wis. 230, 298 N. W. 613.

       (1955), 271 Wis. 219, 72 N. W. (2d) 727.

       (1956), 271 Wis. 465, 74 N. W. (2d) 340.

       (1956), 273 Wis. 541, 79 N. W. (2d) 233.


text:
    J. F. McNamara Corporation and another, Appellants, v. Industrial Commission and another, Respondents.

      April 30

    June 5, 1964.

      For the appellants there were briefs by Hughes, Anderson Sr Davis and Crawford, Crawford Sr Cirilli, and oral argument by Harold Witkin, all of Superior.
    For the respondent Industrial Commission the cause was argued by Beatrice Lampert, assistant attorney general, with whom on the brief was George Thompson, attorney general.
    For the respondent Earl D. Kauti there was a brief and oral argument by Rodney J. Edwards of Superior, guardian ad litem.

       Motion for rehearing denied, without costs, on July 30, 1964.

   Fairchild, J.

Exhibit 25, reproduced herewith, is an aerial photograph of a portion of property owned by Great Northern Railway Company and devoted to various activities incidental to the operation of its transportation system. The camera is pointed toward the north and the waters of St. Louis Bay. The merchandise dock and shed, where Kauti was performing services, are at the northwest corner of the area, at the waterfront. The ship being unloaded was in the slip immediately east of the dock and shed. East and south of the slip are elevators, owned by Great Northern, but leased to and operated by Archer-Daniels-Midland Company. Railroad tracks run south from the merchandise dock. There are other tracks south of the dock and slip, and 17

other tracks, used for grain storage in connection with the elevators, run southerly from the elevators. All are owned by Great Northern. Directly east of the grain-storage yard is the main-line transfer track of Great Northern. It comes from yards to the south and connects near the waterfront with the main line of the Northern Pacific. The nearest connection between the grain-storage yard and other tracks in this area and the main line transfer track is about 4,400 feet south of the merchandise dock. The main line of the Northern Pacific runs north and south and is east of the Great Northern property.

Kauti was struck by an engine on the main-line transfer track. He reached that point by walking east and southeast from the merchandise shed and across the grain-storage yard. He and his companion intended to walk east and southeast across the Northern Pacific and other railroad properties to reach a residence area where they would have lunch at his friend’s home.

The commission found that this was the ordinary and usual way for employees who walked to or from work in the dock area, and there was evidence to support this finding. A roadway ran directly south from the merchandise dock, and this was used for transportation by car. It would also be possible to walk 1,400 feet south from the dock along this road, and then walk east upon an elevated foot bridge (shown in the foreground of Exhibit 25), extending across all railroad tracks in the area. There was testimony that because of the greater length of this route, those who came and went on foot ordinarily followed a route similar to Kauti’s.

An employer is not liable for workmen’s compensation benefits unless at the time of the injury the employee is performing service growing out of and incidental to his employment. The question in this case is whether the commission properly applied sec. 102.03 (1) (c), Stats., providing in part:

“Every employe going to and from his employment in the ordinary and usual way, while on the premises of his employer, . . . shall be deemed to be performing service growing out of and incidental to his employment; . . . The premises of his employer shall be deemed to include also the premises of any other person on whose premises service is being performed.”

We shall consider the principal contentions of McNamara Corporation with respect to the statute just quoted, and particularly the last sentence thereof.

(1) Whether the premises of McNamara for this purpose include the premises of Great Northern. It is clear that McNamara was not performing services for Great Northern. Great Northern had permitted the ship Bambi to use its dock facilities and had assigned space in its warehouse for the temporary storage of cargo. Those in charge of the Bambi had employed McNamara to unload the vessel and place the cargo in the shed. Ultimately the goods would be shipped to other points over the Great Northern. It is clear that McNamara was exercising control over only a portion of the dock and merchandise shed.

Thus McNamara was performing service on Great Northern’s premises, but not for Great Northern. Literally applied, the last sentence of sec. 102.03 (1) (c), Stats., quoted above, would cause McNamara’s premises to be deemed to include Great Northern’s premises. McNamara contends, however, that the last sentence must be construed to require that services were being rendered for Great Northern. This argument is based upon the history of the enactment.

The last sentence was added by ch. 270, Laws of 1943, and resulted from the decision of this court in Hunzinger Construction Co. v. Industrial Comm. In that case, a contractor was constructing a building on a part of a large industrial plant. An employee of the contractor was injured while going from work, but while on the premises of the industrial plant. It was held that the premises of the contractor-employer included only the building over which he had some right of control, and that the employee was not entitled to compensation because he was not on his immediate employer’s premises. McNamara points out that in a comment on Bill No. 210, S., 1943, which became ch. 270, the advisory committee on workmen’s compensation legislation did describe the measure in terms of the immediate employer and a second employer for whom service is being performed by the immediate employer.

Although the fact situation in the case which led to the amendment was one in which the immediate employer was performing services on the premises of another and for that other, we find that no sufficient reason to read into the sentence a restriction which the drafters did not see fit to incorporate, and we conclude that the sentence is applicable here simply because McNamara was performing services on the premises of Great Northern.

(2) Whether the “premises” of Great Northern, for these purposes, included the main-line track where Kauti was injured. Concededly Great Northern owns both the shed and dock where Kauti worked and the main-line track where he was injured. All portions of Great Northern property shown in Exhibit 25 are used for various types of activities incidental to Great Northern’s business of transportation. The dimensions of the Great Northern property shown in Exhibit 25 appear to be about 3,000 feet north to south and about 530 feet east to west. Although this is a large area, and functions are performed in various portions, we conclude that the commission could reasonably determine that the entire area constitutes a single premises of the Great Northern, at least to the extent it was under Great Northern’s control.

McNamara lays stress upon the facts that the elevators at the north and center of this area are leased to and operated by Archer-Daniels-Midland Company; that the company has a degree of control over operations of Great Northern in the grain-storage yard; that the elevators and grain-storage yard lie between the merchandise dock and the main-line transfer track; and that Kauti crossed some part of the leased premises on his way from his work to the point of injury. We see no controlling significance in those facts, albeit a different question would have been presented if the injury had occurred at a point not under Great Northern’s control.

It has been recognized that under some circumstances an employer may effectively limit a particular employment premises by physical barriers so that other property he owns in the vicinity is not deemed a part of the employment premises. There seems to have been no attempt to limit the extent of the premises here, even by rule. This court has also recognized that where an employer has widely separated employment premises, an employee who works at one of them and is injured while at the other in order to call for a friend is not deemed to have been injured on the premises of his employer for the purposes of this statute. This decision has no application to the instant case.

In upholding the commission’s application of the statute, sec. 102.03 (1) (c), to the situation before us, we bear in mind the purposes of the Workmen’s Compensation Act, and the apparent intent of the legislature that where one employer performs service on the premises of another, the employee of the former is forced to cross the premises of the latter and expose himself to whatever hazards are present, in order to go to and from work. Here the risks involved in crossing a railroad yard are obvious. The employer could doubtless exercise some control over the route to be followed, but the statute requires only that the employees travel “in the ordinary and usual way.” In the light of the underlying purpose of this section, it seems to us that the extent of the premises involved should be determined as liberally as is reasonable.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.

Hallows, J., dissents.

       (1943), 242 Wis. 174, 7 N. W. (2d) 578.

        International Harvester Co. v. Industrial Comm. (1936), 220 Wis. 376, 384, 265 N. W. 193. See, however, American Motors Corp. v. Industrial Comm. (1962), 18 Wis. (2d) 246, 251, 252, 118 N. W. (2d) 181.

        E. W. Hallet Construction Co. v. Industrial Comm. (1930), 201 Wis. 182, 184, 229 N. W. 547.


text:
    Rogers, by Guardian ad litem, Appellant, v. City of Oconomowoc and another, Respondents.

      May 1

    June 5, 1964.

      For the appellant there was a brief by Morrissy, Morrissy, Sweet & Stowe of Elkhorn, and oral argument by Ralph R. Stowe.

      For the respondent city of Oconomowoc there was a brief by Patrick Snyder, city attorney, and Hippenmeyer & Reilly of Oconomowoc, and oral argument by Richard S. Hippen-meyer.

    For the respondent William Houtz there was a brief by Lowry, Hunter & Tikalsky of Waukesha, and oral argument by Richard N. Hunter.

   Fairchild, J.

The circuit court ruled that the safe-place statute was inapplicable, and refused to submit questions to the jury upon a safe-place theory. Plaintiff challenges this ruling upon appeal. The circuit court reserved a ruling on defendants’ motions for directed verdict, and submitted the question whether they were negligent with respect to giving warning of the depth of the water. Apparently the negligence of the city was considered a possible issue because of a claim that its immunity had been waived by the form of insurance policy it obtained, and decision on that claim was reserved. Apparently, also, the court reserved decision on a claim by defendant Houtz that there was no evidence of any actionable negligence on his part. On appeal, plaintiff asserts that the evidence compelled a finding of negligence as a matter of law. In addition plaintiff claims error in failing to give an instruction and in failing to declare a mistrial.

1. Was the swimming and beach area or wall a public btiilding? Plaintiff contends that the beach, and more particularly the retaining wall from which he dove, constituted a public building as defined in sec. 101.01, Stats., so as to be subject to the safe-place requirements of sec. 101.06.

The complaint alleged that the part consisted “of a bath house, concession building, sea wall, attached pier, floating pier, life guard stands and artificial beaches, ... all of which were connected and constituted a structure within the meaning of Section 101.06 Wisconsin Statutes.” On the first appeal we indicated very serious doubts whether, by themselves, the seawall and artificial beaches have the semblances of buildings, but emphasized the allegation that these together with bathhouse, concession building, pier, and lifeguard stand constituted a single structure. Giving the complaint the required liberal construction, we held that it had alleged that all these things were “an integral physical unit, reasonably described as a public building within the meaning of the statute.”

The evidence showed that the city had developed a recreational park along the south shore of Lac La Belle. Included in the park was a beach and swimming area. The beach was separated from the water by a Lannon stone retaining wall 400 feet long, running from east to west; the swimming area occupied the east 130 feet. The area was bounded on the east by a wooden pier which extended 70 feet into the water and on the west by a rope held above the water by buoys. Reference was made in the complaint to a bathhouse and concession stand but no evidence was presented as to the location of these structures.

The water at the retaining wall was approximately one to two feet deep; the wall rose a foot above the water. The sand beach extended in back (south) of the wall for IS to 18 feet; a chain ran along the southerly edge of this strip of beach separating the beach area from the rest of the park. Sand had been deposited south of the wall so that the area behind the wall was level with it; from time to time sand was placed on the lake bottom near the wall in the swimming area because the bottom was mucky and rocky. There was a lifeguard’s chair on the beach at the midpoint of the swimming area; the chair was attached to concrete slabs, the front slab being adjacent to the wall.

The pier at the east end of the swimming area abutted the retaining wall but was not attached to it. It was supported by pilings driven into the earth next to the wall and by additional pilings at intervals along its length. A floating raft was located approximately 20 feet to the northwest of the north end of the pier; there was a diving tower on the raft and a diving board on the north end of the pier.

Swimmers entered or left the water by way of the retaining wall or the pier; there was no particular point designated for ingress or egress. Children played upon the wall and people walked upon it. There was evidence that people did at times make shallow dives from the wall. There was a dispute whether there was a rule against diving from it. There were no signs indicating the depth or warning swimmers against diving from the wall, and no barrier to prevent it. There was testimony that it was obvious that the water was fairly shallow in the vicinity of the wall, and that a trained person could safely make a shallow-type dive into two feet of water, but that such a dive could be dangerous to an untrained person.

Plaintiff had first entered the water by diving from the end of the pier. Later he and his companions had rested ashore. Plaintiff and a friend had a race to re-enter the water. The friend succeeded in diving safely from the wall into the shallow water. Plaintiff dove so that his head struck bottom about eight feet out from the wall, where the water was about two and one-half feet deep.

In order for a place to be a “public building” it must be a “structure,” and must be used “as a place of resort, assemblage, lodging, trade, traffic, occupancy, or use by the public or by 3 or more tenants.” In order to be a “public building,” a structure must have “some aspects of similarity to a building as that term is commonly understood.”

This court has held that a pier containing a bench, a diving board, and an observation tower erected by a village for the use of its residents, was a “structure,” used as a place of resort, assemblage, occupancy and use by the public, and was therefore a public building. It is evident from the opinion on the earlier appeal in this case that we considered the retaining wall could be part of a public building only because it .was alleged that it together with bathhouse, concession building, pier, and lifeguard stand were a single structure, and because the exterior parts of a building, such as porches, platforms, and steps of a public building are now by statute to be considered a part of the building. The condition disclosed by the evidence is far different. It is now clear that the wall is not-a part of any building, and that although it has been constructed by man, it is not a “public building,” under the safe-place statute.

Steps in a park leading from a roadway down a bluff to a beach have been held, not to be a “public building,” although the statutory definition of public building has since been expanded. A public ball-playing field has been held not to be a “structure” nor “public building” even though soil had been brought in as fill.

It is apparent that plaintiff is not claiming any defect in the structure or maintenance of the wall itself. Rather he is claiming that its presence made the swimming area unsafe because inexperienced people might attempt to dive from it and were not warned against nor prevented from doing so. Although we have held that a municipal swimming pool may be a “structure” and “public building,” we conclude that a public swimming and beach area along the shore of a lake do not constitute a “structure” nor a “public building” even though artificially developed by constructing a retaining wall at the water’s edge and dumping sand behind the wall and on the lake bottom in front of it. ’

2. Is the beach a “place of employment?” Sec. 101.01 (1), Stats., defines “place of employment” as a place where an industry, trade or business or related operation is carried on “and where any person is, directly or indirectly, employed by another for direct or indirect gain or profit, . . .” Defendant city employed lifeguards to perform service at the beach. Plaintiff points out that although the city’s recreational activity is not carried on for gain or profit, the employees do earn a gain or profit. Plaintiff contends that the definition of place of employment applies because the employees work for gain, and asks us to change our previous construction that the absence of the profit motive on the part of the city prevents the place being treated as a place of employment.

We expressly decided on the earlier appeal that “Plaintiff’s conclusion that these facilities constitute a place of employment cannot be sustained.” In so holding we followed a statutory construction of long standing that it is the profit motive of the employer to which the statute refers, not to that of the employee. We have recently reaffirmed the same construction. We are not persuaded that plaintiff’s construction should now be adopted.

3. The duty to furnish safe employment. Sec. 101.06, Stats., requires that “Every employer shall furnish employment which shall be safe.for the employes therein . . .” The statute later provides that the employer shall furnish a place of employment which shall be safe for employees therein and frequenters thereof, and imposes requirements with respect to the safety of methods and processes. Plaintiff contends that even if the beach was not a place of-employment, there was a breach of the statutory duty to provide safe employment. We do not readily perceive how the presence of the wall and the shallow water beyond it made the lifeguards’ employment unsafe. In any event we have held that the statutory duty to furnish safe employment (unlike the duty to furnish . a safe place of employment) runs to employees but not to frequenters such as plaintiff.

4. The jury verdict of no negligence on the part of defendants. The city relied on municipal immunity from liability not .predicated upon the safe-place statute. This accident occurred before abrogation of the doctrine of municipal immunity. Plaintiff claimed the city had waived its immunity by reason of the form of its insurance policy. Defendant Houtz, the recreation director of the city, claimed he could not be found negligent because his duties required the exercise of discretion and judgment, and because of an asserted principle that he could not be held liable for errors in performing functions of that type.

It will be unnecessary to pass upon those defenses if the jury finding of no negligence can be sustained and if such finding was not affected by error.

The circuit court considered that any possible negligence of the city or Houtz would, under the circumstances, consist of failing to warn swimmers of the shallowness of the water near the wall. We agree that the question put to the jury: Whether defendants were negligent with respect to giving warning of the depth of the water, was adequate. There was testimony, including admissions by plaintiff, tending to show that it was obvious that the water was shallow. People commonly stepped into and out of the water from the wall. The jury could properly find that warnings were not required in the exercise of due care for the safety of swimmers.

5. Board of health publication. Plaintiff contends that the jury should have been instructed as to so-called “rules” of the state board of health, or that these rules required a finding of negligence as a matter of law. The “rules” appear to have been a 1937 publication of recommendations. We are unable to find that they have the force of law. They set forth the minimum safe depth of water for diving from platforms of various elevations. The beach and retaining wall in this case do not constitute a diving platform. We do not consider these “rules” applicable to the situation.

6. Motion for mistrial. After the verdict, plaintiff moved for a mistrial on the ground that two jurors withheld information pertinent to their qualifications as jurors. The husband of one juror had been president of the village of Lac La Belle from 1949 to 1962. Another juror had previously served for many years on the county board and as bailiff. Plaintiff apparently asked questions on the voir dire with respect to the service of any prospective juror as an employee or officer of a governmental body. The questions on voir dire were not recorded by the reporter. Plaintiff claims his questions were broad enough to call for prospective jurors to disclose past governmental employment of themselves or members of their families, as well as present connections. The form of these questions is in dispute. The circuit court denied the motion as well as other motions after ver-diet made by the plaintiff. Evidently the circuit court was satisfied, from its own recollection of the proceedings, that the questions had not called for the disclosures of past associations, that there had been no concealment, and that the fact of past association in county affairs by one juror and in village office by the husband of another was not a sufficient basis for setting aside the verdict in the interest of justice.

7. Lack of opinion by the circuit court. It is evident that significant issues of law were argued before the circuit court as well as here on appeal. We would have preferred that the circuit court set forth its thinking in an oral or written decision. We recognize the burden under which all courts labor, but consider it desirable in the interests of justice that trial courts record their disposition of significant legal issues. The process of recording’ one’s reasoning tends to produce more careful and thorough analysis, thus helping to avoid error. A well-reasoned opinion of a trial judge may at times persuade losing counsel that an appeal will be fruitless, thus reducing unnecessary appeals. If an appeal is taken, the trial judge’s analysis of the issues is most helpful in reaching a sound decision here.

By the Court. — Judgment affirmed.

       Sec. 101.01 (12), Stats.

        Ball v. Madison (1957), 1 Wis. (2d) 62, 66, 82 N. W. (2d) 894.

        Feirn v. Shorewood Hills (1948), 253 Wis. 418, 421, 34 N. W. (2d) 107.

        Rogers v. Oconomowoc, supra, p. 633, footnote 1.

        Weiss v. Milwaukee (1955), 268 Wis. 377, 381, 68 N. W. (2d) 13.

         Hoepner v. Eau Claire (1953), 264 Wis. 608, 614, 60 N. W. (2d) 392.

         Flesch v. Lancaster (1953), 264 Wis. 234, 237, 58 N. W. (2d) 710.

        Rogers v. Oconomowoc, supra, p. 631, footnote 1.

        Waldman v. Young Men's Christian Asso. (1938), 227 Wis. 43, 46, 277 N. W. 632; Cegelski v. Green Bay (1939), 231 Wis. 89, 90, 285 N. W. 343; Hoepner v. Eau Claire, supra, p. 611, footnote 7.

        Haerter v. West Allis (1964), 23 Wis. (2d) 567, 127 N. W. (2d) 768; Niedfelt v. Joint School Dist. (1964), 23 Wis. (2d) 641, 127 N. W. (2d) 800.

        Niedfelt v. Joint School Dist., supra, footnote 11.

        Marshall v. Green Bay (1963), 18 Wis. (2d) 496, 498, 118 N. W. (2d) 715. But see Koenig v. Milwaukee Blood Center, Inc. (1964), 23 Wis. (2d) 324, 334, 335, 127 N. W. (2d) 50.

       See Wasserman v. Kenosha (1935), 217 Wis. 223, 258 N. W. 857.