author:
Wilkie, J.
      Currie, C. J. Beilfuss, J.

text:
    Schmidt and another, Plaintiffs and Respondents, v. Chapman and others, Defendants and Respondents: Hersh Construction & Engineering Company, Defendant and Appellant.

      October 29 —
    December 22, 1964.

      For the appellant there were briefs by Gibbs, Roper & Fifield, attorneys, and Richard S. Gibbs of counsel, all of Milwaukee, and oral argument by Richard S. Gibbs.

    For the, respondents Schmidt there was a brief by Lichtsiftn, Dede, Anderson & Ryan of Milwaukee, and oral argument by Karl M. Anderson.

    For the respondents Chapman there was a brief by Hersh & Magidson, attorneys, and Harry Lensky and Robert L. Hersh of counsel, all of Milwaukee.
    For the respondent Saltzmann there was a brief by Woodrow J. Bach of Milwaukee.
   Wilkie, J.

Four issues are presented on this appeal:

(1) Was the failure of plaintiffs to take such steps as were available to them to protect the building a cause of the building collapse as a matter of law ?
(2) Is defendant general contractor liable to plaintiffs for damages resulting from its negligent trespass on the land of an intervening landowner whose property adjoined the property on which plaintiffs’ building was located ?
(3) Did the trial court err in receiving the opinion evidence of Mr. Mann regarding removal of the intervening strip as a cause of the collapse ?
(4) Did the trial court abuse its discretion in allowing plaintiff to amend its complaint as to the general contractor so as to conform to the evidence ?

In essence we are concerned here with the respective rights and obligations of the parties for the collapse of the Schmidt building accompanying excavating on an adjacent intervening strip of land not owned by the excavating landowner.

The general rule is that a property owner has a right to lateral support from an adjoining property owner for his land in its natural condition. The owner of land which has been encumbered by the construction of a building is not entitled to support for this increased burden.

In this respect the rule of lateral support is stated as follows:

“. . . ‘Between adjacent landowners, the general principle in this regard is that each has an absolute property right to have his land laterally supported by the soil of his neighbor, and if either in excavating on his own premises so disturbs the lateral support of his neighbor’s land as to cause it, in its natural state, by the pressure of its own weight, to fall away or slide from its position, the one so excavating. is liable. This right of lateral support applies only to the land of the adjacent owner, and does not include the right to have the weight of the building placed upon the land also supported. And when, upon an excavation made on his own land by an adjoining landowner, a building upon the adjacent land by its weight and pressure causes the building itself and the land upon which it stands to sink, then in the absence of negligence the one making the excavation is not liable for injury to the building resulting from its subsidence.’ ”

A neighboring landowner who intends to excavate on his property owes a duty to his adjoining property owner on whose land a building has been constructed to give proper notice to that adjoining property owner of his intention to excavate. Furthermore, the excavating landowner or the excavator he engages to do excavation work is obliged to exercise reasonable care in the performance of such excavating.

The nature of the negligence of the excavator for which he may be held responsible has been spelled out:

“In case of negligence on the part of the excavator, he will be liable for injury to the building caused thereby, although the land would not have fallen had there been no buildings thereon. The degree of care to be exercised, in order that the excavator may be immune from a claim for damages by the owner of adjoining real estate not in its natural condition, must be commensurate with the apparent or actual danger. The care required in each particular case depends largely upon the particular facts and circumstances and the physical conditions existing in each case. This rule does not make the excavator an insurer of the building on adjoining property. It goes no further than to require him to exercise a reasonable degree of skill and care to avoid injuring such building.”

Does the excavator have any different duty to the owners of the property on which a building is located where in his excavating he trespasses onto an intervening strip (owned by a third party) adjoining the property on which the building is situated? Any harm that results from such excavation to the building on adjacent property is due to the negligence of the excavator and is a violation of his duty to the owner of the building. The Restatement rule describing the responsibility of a trespassing excavator for acts of negligence causing the collapse of a building on adjoining property is as follows:

“From what has been said, it follows that conduct that would be reasonable when engaged in by the owner of the supporting land may be unreasonable when engaged in by a person who has no legally protected interest in the supporting land and is merely trespassing thereon. The owner of the supporting land and a trespasser on it are alike subject to absolute liability (§ 817, Comment b) for withdrawing support that is naturally necessary (§ 817, Comments c to g). For withdrawing support that is not naturally necessary, neither of them is subject to absolute liability, but each of them is subject to liability for negligence. Conduct on the supporting land that would be reasonable on the part of the owner of it may be unreasonable on the part of a trespasser on it. This is because the interest that the trespasser is promoting by his conduct ón the supporting land is normally not so highly regarded as the interest of the owner of it. In a given case, unless there are peculiar circumstances that increase the utility of the conduct of the trespassing actor, a comparatively slight risk of harm either from the withdrawal of support, or from the particular manner in which it is withdrawn, is'unreasonable, and the conduct is negligent.”

The landowner whose property is threatened by the planned excavation owes a duty to protect the buildings that have been constructed on his own land by taking reasonable measures to protect his own land and buildings as against the intended excavation and as against the collapse of his land and improvements due to the excavating on the adjoining property.

The Schmidts’ Negligence.

The plaintiffs owed a duty to take such means as were available to them to protect their own land and buildings against a collapse caused by the excavating being done on the adjoining property. The jury found that the plaintiffs had failed to meet this obligation but that their failure was not a “substantial factor in causing the collapse of the wall.”

The Schmidts’ duty to protect the building was not reduced by the fact that the excavation was done by a trespasser on the adjoining property. The record shows that Schmidt received notice from the Chapmans that the excavation would go to the Schmidt property line and that the Schmidt foundation would be exposed. Mr. Schmidt inquired of Mr. Perssion about the extent of the excavation and Perssion told Schmidt that the excavation was being performed on his property (parcel C) without his permission and that he had warned the Chapmans about it. Neither Schmidt made any direct inquiry of either the Chapmans or Hersh concerning what had been done or what was planned to be done at a later time.

The failure of the Schmidts to inquire of the Chapmans and Hersh regarding the excavation that was in the process of being made to the Schmidt line and then to take such means as were available to them to protect the building, was, as a matter of law, a substantial factor in causing the collapse of the wall.

Hersh’s Liability.

Hersh’s causal negligence with respect to the direction and supervision that it gave relative to the grading and excavating performed in the vicinity of the wall of the Schmidt building could be based on one or more of three separate theories: (1) Striking the building; (2) undermining the foundation and footings; (3) trespassing on the Perssion intervening strip of land followed by the removal of the strip with the result that the collapse of the Schmidt building was caused at least in part by either the withdrawal of lateral support or the crumbling away of the soil beneath the footings.

There is no need for us to consider whether or not the record supports a jury’s finding of negligence against Hersh under either of the first two theories, since' the record clearly supports a finding of causal negligence under the third theory. Hersh’s negligence in this respect is well described by the trial court when it stated in its opinion on motions after verdict:

“The jury did not make a finding on the specific cause of the collapse of the wall, but the evidence clearly supports the conclusion that either the withdrawal of lateral support or the crumbling of the subsoil under the footing causing a general subsidence would not have occurred if the defendant had not invaded the Perssion strip. This is consistent with the evidence and the jury’s findings and it is adopted as findings by the court in order to arrive at a completed verdict. Had the defendant Hersh prepared the land for parking purposes without excavating within the Perssion strip, the wall would not have collapsed. In the process of the rough grading soil was removed from the Chapman property, but a six-foot earthen barrier constituting the Perssion strip preserved the integrity of the Schmidt wall. When Hersh removed the barrier and excavated below the footings of the Schmidt building on the property belonging to Perssion, it became liable for the consequent injuries to Schmidt’s property.”

Hersh claims the trial court committed, two errors that prejudiced him on the question of his negligence. We discuss these two alleged errors under the next two issues.

Opinion Evidence.

In Kreyer v. Farmers’ Co-operative Lumber Co. the court stated:

“Trial courts have wide discretion as to admitting opinion evidence of expert witnesses. Anderson v. Eggert (1940), 234 Wis. 348, 291 N. W. 365; Henthorn v. M. G. C. Corp. (1957), 1 Wis. (2d) 180, 83 N. W. (2d) 759.
“The principal rule on whether or not expert opinion evidence should be received is stated in the Anderson Case, supra, where the court held, at page 361:
“ Whether the testimony was properly received in this case depends upon whether members of the jury having that knowledge and general experience common to every member of the community would be aided in a consideration of the issues by the testimony offered and received.’ ”

It is apparent that based on Mr. Mann’s background as a building inspector of the city of Milwaukee since 1951, as a supervisor in that office for three years, as a university graduate with course work in' the composition of soils, as an investigator of from eight to 10 prior building collapses, he had more knowledge than a layman and that the trial court did not abuse its discretion in permitting him to testify.

Hersh’s principal objection is that Mann was permitted to give an opinion (that the collapse of the wall was caused by the sandy soil sliding out from under the footings and foundation) based on an opinion (that “in his opinion” sand from underneath the footings had slid out). But the record shows that Mr. Mann actually saw the sand coming out from beneath the footing and thus he was not expressing an opinion based on an opinion but on an actual observation.

Amending of Complaint.

The complaint had alleged as ultimate facts:

. . in the course of said excavation work said defendants trespassed upon parcel A without any authority or permission whatever, removing substantial quantities of earth and striking the south wall of the plaintiffs’ building upon parcel A with repeated and constant blows by the vehicle used in said excavation; said south wall collapsed. ... by reason of the negligence of the defendants in that . . . (b) [t]he defendant, Hersh, failed properly to instruct and supervise the work of its subcontractors as hereinbefore set forth, allowing said subcontractors to excavate and trespass . . . .”

After the trial the trial court permitted the plaintiffs to amend their complaint against Hersh to allege Hersh’s negligence in the evidentiary fact of failure to examine the surveys, the deed, and the blueprints.

Dr. Chapman testified that he gave Hersh two surveys of the land; the Hersh supervisor, Mr. Serdahely, stated he obtained the measurements from the blueprints and assumed the lot went to a telephone pole' which was apparently situated on the south boundary of the Schmidt property. He testified he did not actually measure the Chapman lot. These facts permit an inference that Hersh was negligent in ascertaining the precise limits of the Chapman property and hence in its supervision of the excavation. If the documents incorrectly described the property boundaries, Hersh could have produced them. The record does not disclose any abuse of discretion on the part of the trial court in permitting this amendment.

Since on this record both Schmidt and Hersh were causally negligent in relation to the collapse of the Schmidt building the jury should have compared their respective negligence. Since such a comparison was not made the judgment should be reversed and the cause remanded for a new trial on the respective liability, if any, of Schmidt and Hersh, and on the comparison of their negligence if both are found liable. In conducting the new trial, none of the facts stated herein are to be construed as the law of the case or as limiting the scope of the evidence which may properly be admissible during such new trial.

By the Court. — Judgment dismissing complaint against Gebhardt, Chapman, Perssion, and Saltzmann affirmed; judgment against Hersh reversed and cause remanded for proceedings not inconsistent with this opinion; costs on this appeal to appellant.

Currie, C. J.

{concurring). I fully concur in the opinion written by Mr. Justice.Wilkie. The argument advanced in the dissenting opinion goes to the issue of whether plaintiffs were justified in failing to underpin their building after receipt of the notice that the excavating would be carried to plaintiffs’ building and would be deeper than its footings. Thus this argument has to do with the issue of negligence, not of causation.

Upon the new trial I would suggest that the question which inquires with respect to plaintiffs’ failure to protect their property be phrased in terms of negligence so that it would read substantially as follows:

“Did the plaintiffs Schmidt negligently fail to take such means as were available to them to protect their property?”

It is clear that the trial court intended this question to be framed in terms of negligence because of inclusion in the verdict of the comparative-negligence question.

Beilfuss, J.

(dissenting). I respectfully dissent from the portion of the majority opinion which holds as a matter of law that failure of the plaintiff Schmidts to take such means as were available to them to protect their property was a “substantial factor” and, therefore, a cause of the collapse of the building.

The jury found that the Schmidts failed to take such means as were available to them to protect their property but found that such neglect was not a cause of the collapse.

Clearly our function on review is to search the record for credible evidence or reasonable inferences therefrom that will sustain the verdict. If the jury had found that plaintiffs’ failure was a cause I would not complain. However, from my review of the facts in the record before us, I conclude there is a credible basis for the jury’s finding of no cause.

It appears without dispute that Caroline. Perssion and not Dr. Chapman owned the intervening six-foot strip, so that in reality the Schmidts and Dr. Chapman were not adjoining owners, and that Chapman was a trespasser on the land of Perssion. It further appears that after the preliminary excavation in August, and the written notice in September, the Schmidts contacted Mr. Perssion and that he confirmed his wife owned the six-foot strip and that no permission had been given to Chapman or anyone to excavate the intervening strip.

The jury could find from disputed testimony that Perssion immediately thereafter notified Chapman of the ownership of the property and that Chapman had no right to excavate it. Perssion then told the Schmidts of the substance of his ■conversation with Chapman.

After the preliminary excavation, a four by four by six-foot portion was left adjacent’ to the Schmidt building. Although the foundation of the building was partially exposed, it remained erect and undamaged by virtue of the lateral support furnished by this triangular remaining portion of the intervening strip. This condition remained without change until the final excavation of this remaining portion of the intervening strip in December. After Perssion talked to Chapman in September no additional notice, written, oral, or constructive, was given by or on behalf of Chapman to the Schmidts of additional excavation.

Viewing the evidence in the light most favorable to the verdict, as we are required to do, the jury could find from the credible evidence and reasonable inferences that the Schmidts as reasonable persons could conclude the intervening strip (after the preliminary excavation) was sufficient to support the building, that Perssion owned the strip and had not consented to its removal, and that Chapman had been so informed. From these factual conclusions the jury could and did find that the Schmidts failed in their duty in not advising Chapman that Perssion owned the strip but that such failure was hot causal because Chapman already knew of these facts by virtue of his conversation with Perssion.

I conclude that there is sufficient credible evidence in the record to sustain the verdict. It is significant that the verdict had the approval of the trial court. I would affirm.

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

        Christensen v. Mann (1925), 187 Wis. 567, 575, 204 N. W. 499, 41 A. L. R. 1192; 2 Thompson, Real Property (1961 replacement), pp. 640-642, sec. 415; 1 Am. Jur. (2d), Adjoining Landowners, p. 717, sec. 37.

        Eggert v. Kullmann (1931), 204 Wis. 60, 234 N. W. 349; Wahl v. Kelly (1928), 194 Wis. 559, 217 N. W. 307; Christensen v. Mann, supra, at page 576; Laycock v. Parker (1899), 103 Wis. 161, 177, 79 N. W. 327; 1 Am. Jur. (2d), Adjoining Landowners, p. 718, sec. 40; 3 Tiffany, Real Property (3d ed.), p. 190, sec. 753.

       2 Thompson, Real Property (1961 replacement), p. 643, sec. 415.

        Drott Tractor Co. v. Kehrein (1957), 275 Wis. 320, 81 N. W. (2d) 500; Christensen v. Mann, supra, at page 577; 2 C. J. S., Adjoining Landowners, pp. 13, 14, sec. 13.

        Schaefer v. Hoffman (1929), 198 Wis. 233, 223 N. W. 847.

       2 Thompson, Real Property (1961 replacement), p. 660, sec. 416.

         Restatement, 4 Torts, p. 204, sec. 819.

       In 1 Am. Jur. (2d), Adjoining Landowners, p. 728, sec. 52, it is stated: “It is generally held to be the duty of the owner to shore or prop up his own building so as to render it secure during the progress of the work.”
      In Schaefer v. Hoffman, supra, at page 239, the rule is stated: “Where, however, the soil of an adjoining landowner, at or near the dividing line, is burdened with the weight of a structure erected thereon, such additional weight must be cared for and protected by the owner of the premises upon which the structure is erected, if his adjoining landowner proceeds to excavate and gives timely notice of his intention so to do.”
      See also Wahl v. Kelly, supra; and Hickman v. Wellauer (1919), 169 Wis. 18, 22, 171 N. W. 635.

       (1962), 18 Wis. (2d) 67, 75, 117 N. W. (2d) 646.

         McGaw v. Wassmann (1953), 263 Wis. 486, 57 N. W. (2d) 920, 58 N. W. (2d) 663.


source: Caselaw Access Project

author: Fairchild, J. Wilkie, J.

license: Public Domain

text:
    Pella Farmers Mutual Insurance Company, Appellant, v. Hartland Richmond Town Insurance Company, Respondent.

      October 27, 1964 —
    January 5, 1965.

      For the appellant there was a brief and oral argument by H. E. Koehler of Shawano.
    For the respondent there was a brief by Kaftan, Kaftan & Kaftan of Green Bay, and oral argument by Fred F. Kaftan.

    Briefs amici curiae were filed by Charne & Tehan of Milwaukee, and by George Thompson, attorney general, and E. Weston Wood, assistant attorney general, for Charles Manson, commissioner of insurance.

       Motion for rehearing denied, with costs, on March 2, 1965.

   Fairchild, J.

It is clear that the agreement for reinsurance did not create a liability for assessment unless such liability arises by statute under all such agreements. The question is whether ch. 202, Stats., imposes such liability. Is ch. 202 to be construed so as to require that when a town mutual which reinsures risks of another company under sec. 202.07 makes an assessment under sec. 202.11, it must levy its assessment against the reinsured company as well as against those whose property it directly insures? No part of ch. 202 deals specifically and expressly with the problem.

A town mutual is formed by a group of resident owners of insurable property in a particular county. The board issues policies agreeing to pay its’ insured’s loss occasioned by certain perils to property located within the authorized territory of the town mutual. Every policyholder is a member of the company. The board of directors is elected at annual meetings. The company may classify property or risks under different rates. A schedule of rates must be filed' with the commissioner of insurance, although the statutes do not require approval. Reserves may, but are not required to be, established.

When the amount, of any loss shall exceed the funds on hand, the board “shall levy an assessment which shall be at the same rate upon all property insured at the time of the loss.” The company may, however, classify risks for assessment, and when so classified, the rate of assessment need not be uniform. Assessments constitute personal liabilities of the members.

A group of nine or more town mutuals may form a reinsurance corporation. Any town mutual may apply to it for reinsurance of risks and become a member of the corporation. Sec. 202.17, Stats., provides that the provisions of ch. 202 “shall, so far as applicable, apply to the . . . powers, rights, privileges, duties and burdens of such reinsurance corporation and the members thereof, and the relations of such members with each other and with such reinsurance corporation. . . .”

Sec. 202.07, Stats., authorizes one town mutual to re-insure a portion of any risk of another company or to effect reinsurance • of its own risks by another. It reads:

“The board of directors may at anytime authorize the officers to cede reinsurance to any other responsible company and may assume as a reinsurer alone or in conjunction with other insurers a portion of any risk of any other company provided the risk is located in the state of Wisconsin and is of a kind which it may insure direct.”

Nowhere does the statute expressly make a reinsured company a member of a reinsurer town mutual, nor provide that a reinsured company shall be subject to assessment. If that be the law, it is reached only by construction.

Ch. 202, Stats., deals with three types of situations where one is insured by another: (1) A town mutual agrees to indemnify a property owner for loss of property; (2) a town mutual agrees to indemnify another company for losses on risks of the latter; (3) a reinsurance corporation agrees to indemnify one of its member town mutuals for losses on risks of the latter. In situation (1), the statute explicitly provides that the insured property owner is a member of the town mutual and is subject to assessment. In situation (3), the statute explicitly provides that the reinsured town mutual is a member of the reinsurance corporation, and quite clearly makes it subject to assessment. In situation (2), however, a conclusion' that a reinsured company is a member of a reinsurer town mutual, and subject to assessment by it can only be reached by according great importance to keeping the insurance contract relationship between the parties in situation (2) consistent with the relationship in situations (1) and (3).

The argument can well be made, essentially one of strict construction, that only a member is liable to assessment; that one must be a “policyholder” to be a member; that the “policy” referred to is the contract in situation (1) and not the contract of reinsurance in situation (2) ; that the “property insured” against which assessments are to be levied means property owned by the insured and does not include a reinsured portion of a risk of another insurer; and that one must imply from the presence of express provisions making reinsured town mutuals members and subject to assessment in situation (3) and the absence of such provision in situation (2), that membership and assessability were not intended to exist in situation (2).

The countervailing argument is based on the nature of mutual insurance upon the assessment plan. Town mutuals are authorized to exact premiums in return for insurance, but such premiums may or may not provide funds sufficient to pay losses. When the funds collected prove insufficient to pay the losses incurred, the deficiency is made up by assessment of the members.

“Mutual insurance, as its name implies, exists where several persons have joined together for their united protection, each member contributing to a fund for the payment of the losses and expenses, the benefit or indemnity to accrue to any individual member, depending upon the existence of other persons holding similar contracts, the relationship between the members being a dual one, in that each member is in a sense both an insured and an insurer.”
“The generally accepted rule is that when a mutual company operates on the assessment plan, the liability of the members is limited only by the amount of the loss, and any attempt to limit arbitrarily the number and amount of assessments for which members are liable is ultra vires and void.”

Thus the premiums received by a town mutual for insurance are only the primary resource out of which losses are paid. The ultimate reservoir consists of the resources of its members. If the premiums charged do not produce sufficient funds to pay losses of one or more members, then all the members are obligated to provide additional funds sufficient to do so. But if the town mutual has reinsured risks of another company, and losses outrun the collection of premiums, is the entire deficiency to be made up by property-owner members, or is the reinsured company to share the burden? Are the property-owner members of the reinsurer town mutual to be the insurers of the risks of the reinsured company without the mutuality which applies among all insureds with respect to the ordinary risks ?

It seems to us most logical and most in accord with the framework of ch. 202, Stats., that each reinsurance contract should be treated as an additional policy of insurance issued by the reinsurer town mutual, and the reinsured company as a member of . the reinsurer, subject to assessment.

The history of ch. 202, Stats., has provided little help in resolving the question. It originated in ch. 344, Laws of 1876, entitled “An Act to codify and consolidate all laws in relation to town insurance companies.” It became secs. 1927 to 1941, inclusive, R. S. 1878, and there have been a number of amendments and revisions. Express authority to reinsure risks, as reinsured and as reinsurer, first appeared in ch. 97, Laws of 1893, reading as follows:

“Any town insurance company, organized under the laws of this state, shall have the power, which may be exercised in its discretion, at its annual meeting or at a special meeting thereof, convened for that purpose, by a majority of the votes of such corporation cast in like manner as for the election of directors, to authorize its board of directors to effect reinsurance in some other town insurance company of this state, of any risks, amounting to, or exceeding the sum of five thousand dollars, taken by it, and to reinsure similar risks taken by any other such corporation.”

The provisions for reinsurance corporations originated in ch. 130, Laws-of 1909.

Ch. 344, Laws of 1876, provided, in sec. 12, that every person shall have one vote for each two hundred dollars for which he may be insured. This formula remained the same until ch. 165, Laws of 1911, authorized any town mutual to substitute a provision that each member have one vote. Since enactment of ch. 471, Laws of 1961, each member has one vote in every case.

Affidavits in the record show that Hartland also re-insured risks of Pella; that in 1961 Hartland levied an assessment; that in 1962 Hartland gave notice to Pella of such assessment, stating that this was done at the insistence of the insurance commissioner. Pella paid. Hartland and Pella have similar reinsurance contracts with three other town' mutuals. The affidavits assert that the view that a reinsured town mutual was subject to assessment was first adopted by the insurance commissioner in 1961. Except for these affidavits, pertaining to the practice of five town mutuals, we have no information whether reinsurer town mutuals have levied assessments against reinsured town mutuals or not.

Our attention has been called to several reports of examinations of town mutuals, on file in the department of insurance, indicating that the department’s examiners have questioned the validity of reinsurance agreements of town mutuals which provide that the reinsured shall not be assessed by the reinsurer. These range in date from 1947 to 1960. We are not informed whether the records show any action taken with respect to such reports.

In 1943 the commissioner took the position in this court that a reinsured mutual insurance company (not a town mutual) was a member of and liable to assessment by the reinsurer mutual insurance company. The point was not decided. In the case now before us, the attorney general has submitted a brief on behalf of the commissioner of insurance as amicus curiae, supporting the proposition that a reinsured town mutual is a member of a reinsurer town mutual, and subject to assessment.

Under these facts, neither a long-standing administrative interpretation by the insurance commissioner nor a substantially universal practice by the town mutuals is sufficiently established to be very persuasive.

We have examined the statutes of other states and find that a number of them deal specifically with the question whether a reinsured company is a member of a reinsurer mutual. It is difficult to generalize because of the variations in the statutes, and our analysis necessarily could .not be exhaustive. It appears, however, that 26 states, including Wisconsin, have statutes regulating or authorizing mutual insurance companies which are or may be limited to a parr ticular locality. Six of them have statutes expressly or by clear implication dealing with the questions before us in this case. Four of them provide that a reinsured “local” mutual is not a member of the reinsurer “local” mutual. Two provide that such reinsured is a member of such re-insurer. It-should be observed that although most jurisdictions have statutes pertáining to mutual insurers of various types which are not limited in territory, 25 have provisions that a reinsured company is not a member of a mutual which reinsures it.

There appear to be few court decisions which bear upon the problem.

The supreme court of Nebraska decided that in the absence of express statutory authority, a somewhat similar “local” mutual could not be a reinsurer. In so deciding, the court pointed out that reinsurance is a contract to indemnify an insurer for a loss it may sustain on its contract to insure another, and not a contract to insure the owner of property against its loss by casualty. The supreme court of Missouri reached the opposite result.

It has been held that although in general the word “policyholder” may or may not include a holder of a reinsurance contract, it did so in a particular instrument under the circumstances before the court. It has also been held that reinsurance contracts are not contracts of insurance and that one who procured a reinsurance contract for an insurance company had not earned a commission promised for procuring an insurance contract.

A New York trial court decided many years ago that under a similar New York statute, the reinsured risks should be counted as part of the “insured property” of the re-insurer town co-operative insurance corporation in. determining whether the reinsurer had enough insurance in force to be qualified to extend its territory. The court pointed out that:

“. . . it would necessarily follow that the company obtaining such reinsurance would become thereby a member of the indemnifying co-operative company and subject to pro rata liability for assessments during the life of the contract as other members, because by [the applicable statute] the assessments must be laid ‘upon all the property at that time insured.’ ”

The Skaneateles decision has been cited as authority for the proposition that in the absence of statutory prohibition one mutual company may reinsure property insured by another and the reinsured company becomes a member of the reinsurer company. A New York statute, enacted after the Skaneateles decision, recognizes that reinsured insurers are members of the co-operative which reinsures them, and authorizes assessment of them as a separate class.

In 1928, the attorney general of Minnesota stated, under a statute similar to the Wisconsin statute, that in his opinion a mutual fire insurance company may reinsure a portion of its risk in another mutual company without becoming a member of the reinsurer and subject to the same assessment liability as a regular policyholder.-

The question is extremely close. The legislature originally authorized the town mutuals to insure owners of property, and specifically provided1 that all insureds would be members, would be subject to assessment, and, in essence, the ultimate insurers of each other and themselves. Later, the legislature authorized the town mutuals to issue a different type of insurance, i.e., reinsurance of risks, but never specifically provided that all such insureds would be members, would be subject to assessment, and would join all other insureds as the ultimate insurers of each other and themselves. The learned county court correctly perceived that some of the statutory language is awkward if applied to reinsureds as policyholders and members.

To hold, however, that the reinsureds are not members would place this type of .insurance upon an entirely different footing from the direct type of insurance originally authorized. As to reinsurance, it would not be true that the insured is also an insurer, and only the property-owner members would be the ultimate insurers of the reinsureds. We are persuaded that a construction that the reinsureds are members and subject to assessment is more consonant with the statutory pattern of unlimited mutuality which was fundamental to the town mutuals as originally authorized.

“. . . A statute should be construed to give effect to its ‘leading idea and the whole brought into harmony therewith if reasonably practicable.’ ”
“The statute is to be examined first to discover the legislative purpose, and when that purpose is discovered it is to be so construed as to effect the evident purpose of the legislature if the language admits of that construction.”

The judgment appealed from rested upon the conclusion that the statute does not require assessment. Since we reach a conclusion different from that of the learned county court, further proceedings will be required to resolve other issues between the parties.

By the Court.- — -Judgment reversed, cause remanded for further proceedings.

Wilkie, J.

{dissenting). I agree with the majority that liability for the disputed assessment against the respondent town mutual insurance company must arise, if at all, from the provisions of ch. 202, Stats. I do not quarrel with the majority’s recital of the factors to be considered in arriving at its conclusion as to what the legislature intended. I simply disagree with the majority’s conclusion.

In my opinion the legislature did not intend to treat a reinsured town mutual insurance company (ceding insurance under a reinsurance agreement) in the same manner as a regular town mutual policyholder of the reinsuring town mutual insurance company. If the legislature intended to provide for an assessment against the reinsured t'own mutual on the basis of the amount of the risk reinsured, as in the case of an assessment against a policyholder, it could have done so and until the legislature has expressly so provided there is no reason why our court should so construe the statutes.

The legislature knew the difference between fire insurance policies involved in assessments and contracts of reinsurance which are essentially liability insurance protecting the liability, in whole or in part, of the original insurer under its fire policies.

As a result of the majority decision, Pella may assess its policyholders on the full amount of insurance on its policies and keep the full proceeds although its net retention is less. It also may add to that base the amount of liability of Hartland as insurer on the Hartland policies Pella accepted under the reinsurance contract. Thus, Pella’s base for the assessment is not just 100 percent of the amount insured under its policies, but that amount plus the amount of insurance assumed under its reinsurance contracts. In my opinion no such result was intended by the legislature.

For these reasons I would affirm.

I am authorized to state that Mr. Justice Hallows and Mr. Justice Gordon join in this opinion.

       Sec. 202.01 (1), Stats.

       Secs. 202.06 and 202.08, Stats.

       Sec. 202.09, Stats.

       Sec. 202.01 (2), Stats.

       Sec. 202.08 (2), Stats.

       Sec. 202.11 (1), Stats.

       Sec. 202.11 (1), Stats.

       Sec. 202.08 (2), Stats.

       Sec. 202.12, Stats.

       Sec. 202.15, Stats.

       Secs. 202.16, 202.17, and 202.18, Stats.

       2 Couch, Insurance (2d ed.), p. 166, sec. 19.14.

       2 Couch, Insurance (2d ed.), p. 221, sec. 19.82.

        Cheese Makers Mut. Casualty Co. v. Duel (1943), 243 Wis. 406, 10 N. W. (2d) 125.

       Alabama, California, Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Michigan, Minnesota, Missouri, Montana, Nebraska, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, and Wyoming.

       Idaho Code, sec. 41-3119; Ill. Rev. Stats, sec. 204.9; Mich. Stats. Anno., sec. 24.16824; Va. Code Anno., sec. 38.1-675.

       N. Y. Insurance Law, sec. 365; Tenn. Code Anno., sec. 56-2109.

       Ariz. Rev. Stats. Anno., sec. 20-715; Ark. Stats. Anno., sec. 66-4216; Cal. Insurance Code, sec. 4013; Fla. Stats. Anno., sec. 628.301; Ga. Code Anno., sec. 56-1516; Hawaii Rev. Laws, sec., 181-178; Idaho Code Anno., sec. 41-2829; Ill. Rev. Stats., sec. 73-671; Ky. Rev. Stats., sec. 304.171; Md. Code Anno., sec. 48A-257; Mass. Laws Anno., sec. 175:20; Mich. Stats. Anno., sec. 24.-1632; Mont. Rev. Code, sec. 40-4714; N. M. Stats. Anno., sec. 58-18 — 19; Okla. Stats. Anno., sec. 36-2115; Or. Rev. Stats., secs. 739.165, 736.005 (2), 744.020; P. R. Laws Anno., sec. 26-2909; R. I. Gen. Laws, sec. 27-5-13; S. C. Code, sec. 37-372; S. D. Code, sec. 31.2916; Vernon’s Tex. Stats. Anno., sec. 15.17; Utah Code Anno., sec. 31-9-11;’ Va. Code, sec. 38-1-26; Wash. Rev. Code, sec. 48.09.110; W. Va. Code, sec. 3352. And see Kan. Gen. Stats., sec. 40-45-18.

        Allison v. Fidelity Mut. Fire Ins. Co. (1908), 81 Neb. 494, 116 N. W. 274.

        Cass County v. Mercantile Town Mut. Ins. Co. (1905), 188 Mo. 1, 86 S. W. 237.

        Maurer v. International Re-Insurance Corp. (1952), 32 Del. Ch. 447, 86 Atl. (2d) 360, 365.

        Stradley v. Southwestern Life Ins. Co. (Tex. Civ. App. 1960), 341 S. W. (2d) 195.

        Skaneateles Paper Co. v. American Underwriters Fire Ins. Co. (1908), 61 Misc. 457, 114 N. Y. Supp. 200, 204.

       44 C. J. S., Insurance, p. 655, sec. 108 b, and 46 C. J. S., Insurance, p. 198, sec. 1221. See 2 Couch, Insurance (2d ed.), p. 224, sec. 19.85.

       McKinney’s Consol. Laws of New York, Book 27, sec. 365.

       Op. Atty. Gen., 249-A-16, Dec. 7, 1928, noted in Minn. Stat. Anno., sec. 66.01. See, also 863 Tex. Op. Atty. Gen. (1949), 36.

         McCarthy v. Steinkellner (1937), 223 Wis. 605, 615, 270 N. W. 551, 271 N. W. 374.

         Beckman v. Bemis-Hooper-Hays Co. (1933), 212 Wis. 565, 571, 250 N. W. 420.


author: Hallows, J.

text:
    State ex rel. Sonneborn and others, Relators, v. Sylvester, County Clerk, and others, Respondents.

      November 27, 1964 —
    January 5, 1965.

      For the petitioners there were briefs by Foley, Sammond & Lardner, Marvin E. Klitsner, James P. Brody, and Timothy C. Frautschi, all of Milwaukee, and oral argument by Mr. Brody and Mr. Klitsner.

    For the respondents there were briefs by Harold J. Wollenzien, corporation counsel of Waukesha county, Quarles, Herriott & Clemons, attorneys, and L. C. Hammond, Jr., and Ross Shumaker of counsel, all of Milwaukee, and oral argument by Mr. .Wollenzien and Mr. Hammond.

    A brief was also filed by Phillip B. Morrissy of Elkhorn, special counsel for the Wisconsin County Boards Association.
    Briefs amici curiae were filed by Aberg, Bell, Blake & Metzner and Robert K. Aberg, all of Madison, for Hermann Eisner; by Karl P. Baldwin of Appleton, for the Appleton Area Chamber of Commerce; by Edwin C. Conrad, city attorney, and David Pappas, assistant city attorney, for the city of Madison; by Shirley 5". Abrahamson of Madison, for the League of Women Voters of Wisconsin; by H. William Ihrig of Milwaukee,'in pro. per.; by Foley, Capwell, Foley & Kolbe and Garth R. Seehawer, all of Racine, for J. D. McMurray.

       Case previously reported in 25 Wis. (2d) 177.

   Hallows, J.

The complaint alleges the operation of sec. 59.03 (2), Stats., specifying the composition of county boards of supervisors in all Wisconsin counties excepting Milwaukee and Menominee counties has resulted in large disparities in county-board representation. An exhibit attached to and made a part of the complaint sets forth on the basis of the 1960 census and county-board-composition figures these disparities in all counties in terms of population, number of supervisors, and percentages of the norm for each county. An overall average of the 70 counties shows the ratio of representation between the most underrepresented and the most overrepresented unit which elects a supervisor is over three to one, and in 67 of the counties the ratio is over four to one. In 42 of those counties the disparity ratio is over 10 to one and in Wood, Racine, Iowa, Waukesha, and Dane counties, this ratio is respectively 39, 46, 59, 66, and 69 to one.

As a result, a small minority of citizens in many counties can control a majority of the votes cast by their supervisors. For example, in Waukesha county 26.1 percent of the population elect a majority of the county board and the districts vary in population from 276 in the village of Lac La Belle to 18,276 in the village of Menomonee Falls; in Racine county 24.7 percent of the population elect a majority of the county board and the districts range from 264 in the village of North Bay to 12,358 in the town of Mount Pleasant. In Vilas county 33.1 percent of the people elect a majority of the county board, in Marinette 23.2 percent, in Marathon 23.8 percent, in Florence county 19 percent, and in Eau Claire 21.1 percent. In Dane county 17.2 percent of the people elect a majority of the county board of supervisors .and the village of Blue Mounds (population 227), the village of Brooklyn (population 216), and-the village of Rockdale (population 191) each get one supervisor; the same number as the town of Blooming Grove (populátion 9,709) and the village of Monona (with a population of 8,178). There can be no dispute that sec. 59.03 (2), Stats., does in fact result in an unequal representation of the population and these facts are admitted by the demurrer.

Furthermore, sec. 59.03 (2), Stats., on its face does not purport to provide for the election of county-board members on an equal-populátion basis. The composition of the county board consists of the chairman of each town board, a supervisor from each city ward or part thereof in the county and a supervisor from each village or part thereof in the county. The supervisors from the cities and villages are elected as such but the town chairmen are not directly elected supervisors but hold such offices by virtue of being town chairmen, an elective office. The representation on the county board so far as the people in towns and villages are concerned is based upon such political units without regard to the number of people therein. Since the statute on its face does not purport to apportion the representative districts on the basis of population and the exhibits attached to the complaint admittedly demonstrate the disparity in the weight of votes in different districts caused by the present method of selecting county boards of supervisors, a single question is presented: Does sec. 59.03 (2), specifying the composition of the county boards- of supervisors in all counties containing less than a half million population and more than one town violate: (1) The equal-protection clause of the Fourteenth amendment of the United States constitution, and (2) sec. 1, art. I of the Wisconsin constitution?

Preliminarily, we point out that sec. 1, art. I of the Wisconsin constitution is framed in language of a Declaration of Rights and reminiscent of the Declaration of Independence, and many times has been held to'be substantially equivalent of the due-process and the equal-protection clauses of the Fourteenth amendment to the United States constitution. In Black v. State (1902), 113 Wis. 205, 89 N. W. 522, the court said that the section must mean “equality before the law, if it means anything,” and, “The idea is expressed more happily in the Fourteenth amendment.” Again, in Pauly v. Keebler (1921), 175 Wis. 428, 185 N. W. 554, it was said in referring to the Fourteenth amendment that the first article of the Declaration of Rights in our constitution was a substantially equivalent limitation of legislative power and “our legislature is bound to accord all persons within its jurisdiction the equal protection of the laws.” More recently we reaffirmed the concept that sec.. 1, art. I, is to be equated with the Fourteenth amendment in Boden v. Milwaukee (1959), 8 Wis. (2d) 318, 99 N. W. (2d) 156; Lathrop v. Donohue (1960), 10 Wis. (2d) 230, 102 N. W. (2d) 404; and Haase v. Sawicki (1963), 20 Wis. (2d) 308, 121 N. W. (2d) 876. Since there is no substantial difference between the two constitutions, we will henceforth refer only to the Fourteenth amendment of the United States constitution.

The petitioners contend the recent decisions of the United States supreme court require equal representation on the one man-one vote principle and although these decisions involved the election of members of congress, state legislature, or state offices, they are equally applicable to county-board elections. It is also argued the decisions of other states support the proposition that local govermental bodies must be apportioned according to population. On behalf of the respondents, it is contended that the electorate of a county does not have a constitutional right to the application of one person-one vote principle to the membership of county boards of supervisors since the composition and power of such boards are statutory rather than constitutional in origin. It is further contended that until the United States supreme court expressly determines that the equal-protection clause of the Fourteenth amendment applies to county-board membership, the Tenth amendment reserving power to the states not delegated to the United States is applicable; and that since the state legislature has the plenary power over counties, the supreme court decisions on the composition of territorial legislatures and the District of Columbia board of commissioners are applicable to the county boards by analogy. .This last argument is phrased by other respondents as follows: The constitutional one man-one vote principle is applicable only to independent governmental entities deriving their power directly from the people governed, and counties are not such entities.

Humans are prone to accept that which exists and to which they have become accustomed as being endowed with special virtues. The status quo is always more attractive to the “haves” than to the “have nots,” and what may be a virtue to one is a vice to another. A short reference to the development of Wisconsin counties may be enlightening. The territory which is now Wisconsin was first laid out in counties and townships when Wisconsin was separated from Illinois and attached to the Michigan territory in 1818. Town-county form of government modeled after the New York plan was established in 1827 although there was little need for town government. In early times under this system the board of supervisors consisted of the chairmen of the town boards. Because of objection to this form of government, the type of small county boards used in the southern part of the United States was provided in 1839 shortly after the territory of Wisconsin was established. Under this system three commissioners elected at- large composed the board. Thereafter, towns and counties were created without any real regard to uniformity.

By the time our constitution was established in 1848 the state was divided into 29 counties, all of which had established a large board town-county government excepting Grant, Green, Iowa, Lafayette, and Sauk counties, which had adopted the small board or commission form. Thus, “At and prior to the time of the adoption of the constitution there existed considerable diversity in town and county government in the territory of Wisconsin.” State ex rel. Busacker v. Groth (1907), 132 Wis. 283, 285, 112 N. W. 431. This diversity resulted in the enactment in the constitution by sec. 23, art. IV, that, “The legislature shall establish but one system of town and county government, which shall be as nearly uniform as practicable; . . .” Thus the type and method of composition of county boards was not resolved by the constitution which also provided in sec. 22, “The legislature may confer upon the boards of supervisors of the several counties of the state such powers of a local, legislative and administrative character as they shall from time to time prescribe.” ‘

In 1849 the new state legislature, provided a town-county system which provided that towns were to be supervisorial districts but also provided for supervisors from cities. In 1861 the bill was proposed providing the supervisors in every county be limited to three in number elected by districts and in counties having only two assembly districts one supervisor elected at large. The bill also provided that in counties having more than three assembly districts the board was to have an extra supervisor for each such district. The bill became, law but immediately came under attack. In 1868 a special law was enacted permitting Washington county to raise its board membership to eight, but was declared contrary to the uniformity clause of art. IV in State ex rel. Peck v. Riordan (1869), 24 Wis. 484. By ch. 84, Laws of 1870, the county-township plan was re-established by the legislature and continued efforts to break the hold of this form of county government were made. See State and De Guenther v. Douglas (1870), 26 Wis. 428. In 1907 counties with population of 250,000 were authorized to establish county boards composed of one supervisor from each assembly district. Today, sec. 59.03 (1), Stats., not involved in this suit, provides for Milwaukee county a county board of supervisors composed of a supervisor from each assembly district therein elected by the electors of said district.

In 1921 the legislature by ch. 245, Laws of 1921, proposed counties might adopt a commission form of county government of three to nine commissioners by referendum vote. The act was amended in 1933 and the commission plan was considered by several counties and adopted by five of them. However, this law was declared unconstitutional as violating the uniformity law in State ex rel. Adams v. Radcliffe (1934), 216 Wis. 356, 257 N. W. 171. From that time up to the present time there have been many attempts to amend the. constitution relating to the form of county government. Last year by ch. 500, Laws of 1963, the legislature created a joint interim study committee for the purpose of determining the best method of apportioning representation on a county board, which committee is required to recommend its plan to the 1965 legislature. From the history of county government in Wisconsin, it cannot be said the present form of county government has enjoyed universal acceptance. It is to be noted, however, that whether the boards were large or small, their membership was either elected directly or partly directly and partly indirectly.

The sharp conflict between the relators and respondents is the application of the one man-one vote principle to county boards. The principle of equal representation, or as it is commonly called “one man-one vote,” as a requirement of the Fourteenth amendment is of recent pronouncement and has received considerable analysis and explanation by the United States supreme court. Soon after the landmark case of Baker v. Carr (1962), 369 U. S. 186, 82 Sup. Ct. 691, 7 L. Ed. (2d) 663, holding that legislative reapportionment was a justiciable issue, the roots of the equal-representation principle emerged in Gray v. Sanders (1963), 372 U. S. 368, 83 Sup. Ct. 801, 9 L. Ed. (2d) 821, under the equal-protection clause of the Fourteenth amendment, and were nurtured in Wesberry v. Sanders (1964), 376 U. S. 1, 84 Sup. Ct. 526, 11 L. Ed. (2d) 481. In Gray the Georgia county-unit system was held unconstitutional to a statewide primary election because that system resulted in a dilution of the weight of the votes of certain Georgian voters merely because of where they resided. It was stated in the opinion, “Once the geographical unit for which a representative is to be chosen is designated, all who participate in the election are to have an equal vote — whatever their race, whatever their sex, whatever their occupation, whatever their income, and wherever their home may be in that geographical unit. This is required by the Equal Protection Clause of the Fourteenth Amendment. The concept of ‘we the people’ under the constitution visualizes no preferred class of voters but equality among those who meet the basic qualifications.”

In Wesberry v. Sanders, supra, the court determined that the constitutional test for the validity of congressional dis-tricting schemes was one of substantial equality of population among the various districts established by a state legislature for the election of members of the house of representatives. This holding was predicated on the construction of the constitution that the election of members of the house of representatives “by the people” means “that as nearly as practical one man’s vote in a congressional election is to be worth as much as another’s.”

In Reynolds v. Sims (1964), 377 U. S. 533, 84 Sup. Ct. 1362, 12 L. Ed. (2d) 506, and the five other cases handed down at the same time, the basic principle of equality among voters within a state and the fundamental principle that representative government is one of equal representation for equal numbers of people without regard to race, sex, economic status, or place of residence were applied to the apportionment of the Alabama state legislature. In reaching its conclusion the court stated legislators represent people, not trees or acres and must be elected by voters, not farms, or cities, or economic interests, if the form of our government is to remain representative.

It is true these cases dealt with a right to vote preserved in a constitution and for an office created by the constitution; but the rationale of the decisions applies equally as well to a statutory right to vote. The right to vote whether statutory or constitutional to mean anything in a representative government means the right to secure equal representation. The gist of the relator’s argument in the application of this principle is that county boards are legislative instruments of the state government and should be directly representative of the people of the county. To the contrary, the respondents argue the legislature in the exercise of its plenary power may provide that supervisors represent political units and county boards need not be apportioned on a population basis. However, county boards possessing the type of legislative power which they do must be considered a unit of government which should be équally representative of the people of the county. The principle has been recognized in the history of county government and as far back as 1907 Milwaukee county supervisors were elected to represent people and elected on an assembly-district basis. While a town chairman is a member of the county board ex officio he is nevertheless elected in effect a supervisor when he is elected a town chairman.

Since the basic principle of representative government is that the weight of a citizen’s vote cannot be made to depend on where he lives, then county boards as units of representative government should not be constitutionally immune from the requirements of the Fourteenth amendment. The respondents argue this need not be the result because the principle of equal representation applies only to independent governmental entities which derive their power directly from the people governed. But this argument is not controlling. True, counties are created by the legislature without the direct consent or concurring action of the people directly affected. State ex rel. Bare v. Schinz (1927), 194 Wis. 397, 216 N. W. 509. Characterizing counties as “political subdivisions created to perform functions of the state locally and existing as a result of the superimposed will of the state” or as “pure auxiliaries of the state” or as “an arm of the state” or “local organizations” which “rank low down in the scale or grade of corporate existence,” or quasi municipal corporations, Frederick v. Douglas County (1897), 96 Wis. 411, 71 N. W. 798; Crowley v. Clark County (1935), 219 Wis. 76, 261 N. W. 221, is not determinative of whether the Fourteenth amendment applies to their composition when the members of a county board are determined by the elective process. Or stating it another wa^, admitting such characterizations, does it follow that in a representative government the people should not have equal representation even in the lowest rank in the scale? We do not subscribe to the argument that because the composition and powers of counties are statutory in origin the principle of equal representation does not apply.

Although the legislative power of a county may in fact be limited by the statutes, nevertheless the constitution by sec. 22, art. IV empowers the legislature to confer on the board of supervisors such powers of a local, legislative and administrative character as it shall from time to time prescribe. Under this authorization the legislature in ch. 59, Stats., has granted a substantial bundle of legislative powers to county boards and may grant additional substantial powers. Such powers are not to be confused with the powers of administrative boards and commissions to enact rules and regulations even though the latter have the effect of law. Since the composition of the legislature must conform to the principle of equal representation, it is logical that the arm or political subdivision of such legislature enacting legislation should be governed by the same principle of equal representation.

The fact the county also performs administrative functions and is somewhat responsive or subject to the legislature does not justify the denial of the application of the equal-representation principle to county boards. Solely administrative duties would not call forth the application of the principle, nor do these administrative duties or the limited legislative powers destroy the fact that realistically the county today is a unit of government with vital powers over the lives of its residents. Those powers, which it may now exercise or may be given as a legislative body, require in our form of government the principle of .equal representation be applied. We do not now decide every legislative function requires representative elective execution. We hold only that the principle of equal representation applies to a county board of supervisors when that board is given legislative power and is composed of elective members.

We see no validity in the respondents’ arguments that since the county is a creature of the legislature under its plenary power it stands on the same footing by analogy as the District of Columbia and territories of the United States. This analogy goes only to the lack of an express provision in the constitution granting the right to vote and not to the question of whether when under the plenary power the right to vote is provided for, it must be on the one mail-one vote principle. When the latter is the case, to be a valid vote it must be a vote that will insure equal representation. Although the legislature was given the power to determine the type and form of county government, it is mandatory by the constitution that the legislature establish a uniform system of county government. The legislature is not free to eliminate the county as a unit of government. In exercising that power the legislature must act within the constitutional restrictions of the equal-protection clause. Gomillion v. Lightfoot (1960), 364 U. S. 339, 81 Sup. Ct. 125, 5 L. Ed. (2d) 110; see also State ex rel. La Crosse v. Rothwell (1964), 25 Wis. (2d) 228, 130 N. W. (2d) 806. Can it be successfully argued today that the legislature could provide for the election of supervisors of the county board on the basis of race, creed or color? We think not. Nor do we believe that an increase or dilution of the weight of votes on the basis of political subdivisions or of the character of the area in which people live can be justified by the plenary-power argument.

We find no merit in the argument that unless the United States supreme court expressly first determines the equal-protection clause of the Fourteenth amendment applies to county-board membership, the Tenth amendment reserving powers to the state not delegated to the United States is applicable. This argument overlooks the fact that it is the duty of this court to decide questions properly presented to it whether they have been expressly decided by the United States supreme court or not, and further since sec. 1, art. I of our constitution is the equivalent of the Fourteenth amendment of the United States constitution, the effect of that amendment is necessarily involved in construing our state constitution.

Cases from other states cited in the briefs are not especially helpful because of the particular constitutional or statutory provisions involved. Under a California statute, which expressly permitted the board of supervisors to redistrict provided “the districts shall be as nearly equal in population as may.be,” the cases hold the statute was mandatory and the board was required to redistrict on the population basis. Griffin v. Board of Supervisors of Monterey County (1963), 60 Cal (2d) 318, 33 Cal. Rptr. 101, 384 Pac. (2d) 421; Henderson v. Superior Court of Marin County (1964), 37 Cal. Rptr. 438, 390 Pac. (2d) 206; and Miller v. Board of Supervisors of Santa Clara County (1964), 37 Cal. Rptr. 440, 390 Pac. (2d) 208. A similar result was reached involving a law requiring the apportionment of city wards on a population basis in State ex rel. Scott v. Masterson (1962), 173 Ohio St. 402, 183 N. E. (2d) 376. Two other cases cited in the briefs involved malapportionment — one,' of wards of a parish; the other, of a county board, but neither was decided on the merits. Simon v. Lafayette Parish Police Jury (W. D. La. 1964), 226 Fed. Supp. 301; Bianchi v. Griffing (E. D. N. Y. 1963), 217 Fed. Supp. 166. Not directly in point are Hedlund v. Hanson (D. C. Minn. 1962), 213 Fed. Supp. 172, and Ludwig v. Board of County Commissioners of Sarpy County (1960), 170 Neb. 600, 103 N. W. (2d) 838, although dealing with the problem of alleged malapportionment of county commissioners.

There is no case of a court of last resort of any state decided since Baker v. Carr, supra, which involves the issue presented to this court. There are, however, two cases holding that the Fourteenth amendment requires equal representation on boards of governmental bodies below the level of the state legislature. In Brouwer v. Bronkema, Case No. 1855 (Cir. Ct. Kent County, Mich., Sept. 11, 1964), the trial court determined the equal-protection clause of the federal constitution required the membership of the county board of supervisors in Michigan be apportioned on a population basis. In arriving at this conclusion the court reasoned: (1) The Fourteenth amendment applied to the state and every governmental agency which exercised legislative powers delegated to it by the state, (2) the county was a governmental instrumentality or division of the state, and the board of supervisors was the legislative body of the county exercising such power, and (3) the state may exercise its legislative power only in a legislative body apportioned on a population basis and if it delegates a part of those powers, it must do so to a legislative body apportioned according to the same “basic constitutional standard.” The other case is Ellis v. Mayor and City Council of Baltimore (D. C. Md. 1964), 234 Fed. Supp. 945. The city charter provided the voting districts should be apportioned on the basis of registered voters rather than population. It was held that the districts composing the city of Baltimore were disproportionate in population and under the Fourteenth amendment as now construed by Reynolds v. Sims and the companion cases, supra, the plaintiff was entitled to equal protection of laws in his representation On the city council.

We conclude that sec. 59.03 (2), Stats., is unconstitutional because it violates the equal-protection clause of the Fourteenth amendment of the federal constitution and sec. 1, art. I of the Wisconsin constitution. The legislature has the duty to establish a system of county government meeting constitutional standards and this court approaches this problem as it did the apportionment of the state legislature in State ex rel. Reynolds v. Zimmerman (1964), 22 Wis. (2d) 544, 126 N. W. (2d) 551, where, in finding the apportionment of the existing law invalid, deferred the effect of the invalidity until the legislature had a reasonable time to act. Elections will be held on April 6, 1965, before the legislature has had a reasonable time within which to act even though it has appointed a joint interim study committee for the purpose of determining the best method of apportioning representation on a county board. It cannot be said the legislature is unaware of the problem or has failed to act. Consequently, we decline to stay the April, 1965, elections at this time and hold the unconstitutionality of sec. 59.03 (2), as applied to future elections, will not be effective until the further order of this court. This type of procedure is born of necessity and was approved in Reynolds v. Sims, WMCA v. Lomenzo, and Maryland Committee v. Tawes, supra.

The purpose of the joint interim study committee as stated in sec. 13.46 (4), Stats., is to draft a plan for the apportioning of county supervisory districts on town, village, and city lines, giving greater consideration to population representation than does the present town, village, and city ward representation, but not disregarding other factors and shall be more equitable toward population than the existing Wisconsin system. The committee is required to recommend its plan to the 1965 legislature. Reasonable time should be given this committee to complete its study and for the legislature to create a valid uniform system of county government and any implementation completed, if. required. From what has been said it should be plain that a plan must not only be more equitable in respect to population than the existing system but also must establish a substantial equality of population among the various districts in a county whether or not the plan contemplates districts on town, village, and city lines.

By the Court. — It is adjudged and declared:

(1) Sec. 59.03 (2), Stats., denies citizens of Wisconsin the equal protection of the laws and therefore is in conflict with the Fourteenth amendment, United States constitution, and sec. 1, art. I of the Wisconsin constitution. This declaration shall have prospective effect only and its effective date shall be fixed by this court;
(2) Orderly operation of government requires that the county boards heretofore elected under sec. 59.03 (2.), Stats., and to be elected thereunder in 1965 be permitted to function for a reasonable period sufficient for the enactment of new legislation to replace sec. 59.03 (2), and that the validity of acts of boards so elected should not be challenged upon, the basis of this decision:
(3) This court retains jurisdiction and if for any reason a system of county government in accordance with constitutional standards is not provided by November 1, 1965, the relators or other parties interested may apply to this court for an order to fix a date as of which county boards elected under sec. 59.03 (2), Stats., shall no longer be validly in office, to enjoin elections of members of county boards pursuant to said statute, or for other appropriate relief.

       “59.03 Boards; composition; election; terms; substitutes; compensation ; compatibility. The boards of the several counties shall be classified and shall be composed of representatives from within the county elected and compensated as follows: . . .
      (2) Other Counties. In counties containing- less than 500,000 population and more than one town:
      (a) Composition. The chairmen of the town boards.
      (b) Same. A supervisor from each city ward, or part of city ward in the county, but each city with a population of not over 800 shall have only one supervisor unless the city is in more than one county, in which case it shall be entitled to one supervisor in each county.
      (c) Same. A supervisor from every village or part of a village in the county.
      (d) Election; terms. A supervisor from a city or village shall be elected at the time that other city or village officers are elected.
      (e) Substitutes. If any town chairman is unable to attend any meeting of the county board, either of the other members of the town board, to be designated by themselves (and if they disagree they shall decide by lot), shall attend the meeting as a member of the county board, but he shall not so act until the town clerk certifies to the county clerk that he was so designated. In cities and .villages a substitute for any supervisor may be appointed in such case by the mayor or village president, and the city or village clerk shall certify the designation to the county clerk; or the mayor or village president may attend the meeting and act as a member of the county board with certification,”

       “Equality; inherent rights. Section 1. All men are born, equally free and independent, and have certain inherent rights; among these are life, liberty and the pursuit of happiness; to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed.”

       1952 Wisconsin Blue Book, p. 120.

        WMCA, Inc., v. Lomenzo (1964), 377 U. S. 633, 84 Sup. Ct. 1418, 12 L. Ed. (2d) 568; Maryland Committee v. Tawes (1964), 377 U. S. 656, 84 Sup. Ct. 1442, 12 L. Ed. (2d) 595; Davis v. Mann (1964), 377 U. S. 678, 84 Sup. Ct. 1453, 12 L. Ed. (2d) 609; Roman v. Sincock (1964), 377 U. S. 695, 84 Sup. Ct. 1462, 12 L. Ed. (2d) 620; Lucas v. Colorado General Assembly (1964), 377 U. S. 713, 84 Sup. Ct. 1472, 12 L. Ed. (2d) 632.


author: Beilfuss, J.

text:
    Borello, Appellant, v. Industrial Commission and another, Respondents.

      November 23, 1964 —
    January 5, 1965.

      For the appellant there was a brief and oral argument by Roland J. Steinle, Jr., of Milwaukee.
    For the respondent Industrial Commission the cause was argued by Gordon Samuelsen, assistant attorney general, with whom on the brief was George Thompson, attorney general.
   Beilfuss, J.

It is the appellant’s contention that the commission does not lack jurisdiction to reconsider her claim because extrinsic fraud on the part of the employer, Marathon, prevented the commission from determining the real issue, namely, did the claimant suffer an occupational disease (lead poisoning) caused by her employment.

Counsel for the appellant candidly states in his brief:

“At the beginning of this argument it must be said that the following statement found near the end of Judge Bard-well’s ‘Directions for Judgment” is'a verity:
“ ‘There is not even a scintilla of evidence in this record that the commission in any way perpetrated any fraud upon the applicant at the time of the 1950 hearing. In fact, no such allegation is even hinted at by counsel for the applicant.’
“Further, we cannot challenge the observations of Judge Bardwell that the Commission order of May 23, 1950 was a final order; that it contained no reservation of jurisdiction in any respect; that no action was commenced to review this order although claimant was represented by counsel at the 1950 hearing; that no action was taken by the applicant within six years of the date of said order, notwithstanding the language of Section 102.17, Wis. Stats., which reads as follows:
“(4) The right of an employe, his legal representative or dependent to proceed under this section shall not extend beyond 6 years from the date of the injury or death or from the date that compensation (other than medical treatment or burial expenses) was last paid, or would have been last payable if no advancement was made, whichever date is latest.”

Upon these concessions alone we conclude that the commission was without jurisdiction to reconsider the appellant’s claim.

The cases of Weber v. Weber (1952), 260 Wis. 420, 51 N. W. (2d) 18, and Hartenstein v. Hartenstein (1963), 18 Wis. (2d) 505, 118 N. W. (2d) 881, are cited for the authority that equity will in some instances grant relief upon collateral attack of judgments obtained by fraud.

These cases are not persuasive authority for the appellant in this proceeding. They enunciate the rule that an independent equitable action may grant relief of a judgment obtained by fraud. We are dealing here not with an independent equitable action but rather a statutory action to review the proceeding to assert a claim for workmen’s compensation. This is not an action at law nor in equity as recognized by the common law. It is a statutory proceeding where the rights, remedies, and procedures are established by statute. The relief sought must be within the statute. By virtue of sec. 102.17, Stats., quoted above, the commission does not have jurisdiction béyond six years from date of the injury or the date compensation was last paid.

Although our conclusion above requires that the judgment appealed from be affirmed, we deem it advisable to consider the appellant’s principal contention — that the 1950 order of the commission was obtained by fraud and, therefore, subject to review and redetermination. In support of this contention we are asked to re-examine our construction of sec. 102.23, Stats., which provides in part:

“The findings of fact made by the commission acting within its powers shall, in the absence of fraud, be conclusive; . .

Appellant maintains that the concealment of the solvent actually used constituted extrinsic fraud, preventing appellant from having a hearing on the merits of her case. It is further alleged that this court’s construction of sec. 102.23, Stats., involved cases where intrinsic fraud was alleged or shown, and hence, this court “did-not intend to say that only a fraud of the commission itself was the sole kind of extrinsic fraud which would void a compensation order.”

Past judicial construction of sec. 102.23, Stats., does not bear out appellant’s position. Set forth below are the pertinent cases. Whether extrinsic or intrinsic fraud was alleged is immaterial. The cases clearly hold that neither form of fraud is a ground for reopening a judgment or order of the Industrial Commission. Fraud on the part of the commission is the only basis for reopening the- judgment.

Justice Marshall, in his dissenting opinion in Boring v. Ott (1909), 138 Wis. 260, 280, 119 N. W. 865, said:

“So the supreme test of competency for equitable relief is whether the facts constituting the fraud are extrinsic. If they are intrinsic in any sense, competency does not exist. That suggests at once that mere perjury, as in this case, does not satisfy the test.”

Continuing at page 294:

“. . . Fraud to be the basis of attack upon a solemn judgment of a court must be extrinsic and have directly induced the judgment. Mere perjured testimony creating a fictitious condition upon which the court acted as a real one, resulting in the judgment, is not sufficient.”

In Pellett v. Industrial Comm. (1916), 162 Wis. 596, 600, 601, 156 N. W. 956, fraud due to perjured testimony and concealment of facts was argued. The court said:

“It may be conceded that the language of the statute upon an original construction, regardless of principle's guiding equity in granting relief from judgments obtained by fraud as announced in Boring v. Ott, . . . [cases cited] and regardless of the intent of the legislature as expressed in the report of and discussions before the committee that drafted the Workmen’s Compensation Act, is susceptible of the construction that the fraud meant by the act includes perjury or the concealment of material facts upon the hearing. . . . Happily there is as to this statute no doubt upon the subject. The report of the committee referred to and the discussions had before it conclusively show that it was the legislative intent that perjured testimony or concealment of material facts were not such fraud as the statute contemplates. In their report the committee said: The fraud alluded to in the second ground will be only such as was perpetrated in securing the award, and will not include false testimony of any party, because such questions all will be decided by the board’ (commission).” (Emphasis added.)

In Klug & Smith Co. v. Industrial Comm. (1925), 188 Wis. 422, 206 N. W. 53, upon a contention of perjured testimony and concealment of facts, this court cited and relied upon, the Pellett Case, supra, for its decision. This court held that it is only fraud of the commission, and not perjury or concealment of material facts which may be' the basis of challenging findings of the commission.

In Buehler Brothers v. Industrial Comm. (1936), 220 Wis. 371, 265 N. W. 227, it was there claimed that the award was based on false and fraudulent statements throughout the entire course of the proceedings and that the true state of facts was not obtainable, in the exercise of due diligence, until after the time for appeal from the commission order had elapsed. The plaintiffs alleged fraud not only upon the perjured testimony and the concealment of material facts, but fraud which went to the very essence of the applicant’s claim.

This court again followed the decision in the Pellett Case, supra, holding that the legislative history shows that the rules laid down in Boring v. Ott, and those of Justice Marshall in his dissenting opinion should govern the setting aside of orders of the Industrial Commission.

In Woman’s Home Companion Reading Club v. Industrial Comm. (1939), 231 Wis. 371, 376, 285 N. W. 745, this court said:

“But if we take the matter at its worst, and assume that the conduct of the applicant was not only -such as to be conducive to prosecution of fraudulent claims but constituted actual fraud in the instant case, it would appear that nothing can be here done about it. It was not a fraud of the commission; but a fraud of the applicant, and it is only fraud of the commission that can be asserted in an action under the Workmen’s Compensation Act to set aside an award.”

In the recent case of Boles v. Industrial Comm. (1958), 5 Wis. (2d) 382, 92 N. W. (2d) 873, this court said, kt page 386:

“In several cases this court has determined that the fraud referred to in the statute means fraud of the commission. [Cases cited] . . . Thus the issue is not fraud on the part of any of the parties or their attorneys, but we must determine whether or not the commission itself committéd fraud.”

The construction óf sec. 102.23, Stats., is unambiguous— it is only fraud of the commission itself that can be asserted to upset a finding of the commission. The question remaining is whether this court’s construction of that statute could be altered were the court inclined so to do. The answer must be no, in light of the cases to be set forth below.

In Buehler Brothers v. Industrial Comm., supra, this court said, at page 375 :

“Pellett v. Industrial Comm., supra, was decided on March 14, 1916. The conclusions there reached were approved in Klug & Smith Co. v. Industrial Comm., supra, decided December 8, 1925. The statute in question has remained unamended, so we may well conclude that the construction placed upon it by this court did not contravene the intention of the legislature.”

In Thomas v. Industrial Comm. (1943), 243 Wis. 231, 240, 10 N. W. (2d) 206, it is said:

“Since the Independence Case, supra, many sessions of the legislature have come and gone and the legislature has never amended the statute to change the rule of the Independence Case. This is significant.”

The court in Thomas cited Union Free High School Dist. v. Union Free High School Dist. (1934), 216 Wis. 102, 256 N. W. 788:

“ ‘Since that time two legislatures have come and gone without amending the law; this they would in all probability have done if they had deemed the opinion of the attorney general unsound.’ ”

In Meyer v. Industrial Comm. (1961), 13 Wis. (2d) 377, 382, 108 N. W. (2d) 556, this court said:

“Assuming, but not admitting, that the reasoning in said cases was erroneous, the rule has become part of the statute and an attempt at this date to overrule our prior decisions would be an exercise of judicial legislation. . . .
“ ‘When such construction has once been given to a law and finally established as a part thereof, it is as much a part of it as if embodied therein in plain and unmistakable language. . . . When that situation exists it is the province of the legislature alone to change the law. The court should not attempt it, whatever may be the notions of judges as to what the law ought to be.’ ” Citing Thomas v. Industrial Comm., supra.

Estate of Atkinson (1963), 19 Wis. (2d) 272, 278, 120 N. W. (2d) 109, is directly on point:

“We have said that the construction given to a statute by this court becomes part of the statute unless the legislature subsequently amends the statute to effect a change . . . [Cases cited]. Significantly, nearly sixty-five years have elapsed since this court’s decision in Lefebvre.”

Significantly, nearly fifty years have elapsed since this court’s decision in Pellett v. Industrial Comm., supra, that the only basis upon which an award of the Industrial Commission may be set aside is fraud committed by the commission itself, and that fraud of the parties cannot be the basis for setting aside an award.

The respondents have set forth additional arguments in support of their position. Because of our determination that the judgment be affirmed they need not be discussed.

By the Court. — Judgment affirmed.

        Fossman v. Industrial Comm. (1950), 257 Wis. 540, 44 N. W. (2d) 266.


author: Currie,'C. J.

text:
    Graf, Appellant, v. Gerber, Respondent.

      November 23, 1964 —
    January 5, 1965.

      For the appellant there were briefs and oral argument by Arthur DeBardeleben of Park Falls.
    For the respondent there was a brief by Thomas W. Duffy of Hayward, attorney, and Victor O. Tronsdal of Eau Claire of counsel, and oral argument by Mr. Tronsdal.

   Currie,'C. J.

The two issues presented by this appeal are:

(1) Is the order appealed from void because not filed within two months after the rendering of the jury’s verdict?
(2) If the foregoing question be answered in the affirmative, should this court exercise its discretion under sec. 251.09, Stats., to grant a new-trial in the interest of justice?

Validity of Order.

Sec. 270.49, Stats., provides that a motion after verdict, “if not decided within the time allowed therefor, shall be deemed overruled.” This statute further provides that such a motion must be made and heard within two months after the verdict is rendered unless the court by order made before the expiration of the two-month period extends the time for cause. Here there was no order made extending time and the order granting a new trial, while dated within two months after the rendering of the verdict, was not filed with the clerk of court until after the expiration of the allotted two-month period. Therefore, the validity of the order turns on the narrow issue of whether filing within the time allotted for decision is a necessary requisite.

This court has previously held that the statute requiring the trial court to decide motions after verdict within the allotted period, is complied with if the memorandum decision passing on such motions is filed within such time, even though the order for new trial is not filed until after expiration thereof.- Guptill v. Roemer (1955), 269 Wis. 12, 68 N. W. (2d) 579, 69 N. W. (2d) 571. It has also been held that, if the trial court's decision on motions after verdict is given verbally from the bench in open court within the allotted period, it is timely even though not transcribed and filed until after this period has expired. Flippin v. Turlock (1964), 24 Wis. (2d) 49, 127 N. W. (2d) 822. In the instant case, however, the decision was neither pronounced in open court nor filed within the time fixed by sec. 270.49, Stats. It is our considered opinion if the decision on motion to grant a new trial according to sec. 270.49 is not announced m open court within the statutory allotted time it will not be valid unless the written decision or order of the court deciding such motion either is filed or otherwise authenticated, or all parties adversely affected thereby are notified thereof, within such period.

In Yanggen v. Wisconsin Michigan Power Co. (1942), 241 Wis. 27, 4 N. W. (2d) 130, the issue was the validity of two orders extending time within which to decide motions after verdict. Each was dated within the period allotted by then sec. 270.49, Stats., for deciding motions after verdict but were filed after such period had expired. The court held these two orders to be ineffective, and in its opinion stated (at p. 32) :

“An order of the judge at chambers is ineffective until notice thereof has been served upon the opposite party or his attorney. Spaulding v. Milwaukee & Horicon R. R. Co. (1860), 11 Wis. *157. For unlike an order made in open court, Kayser v. Hartnett (1886), 67 Wis. 250, 30 N. W. 363, such an order would not apprise the opposite party of its existence. And an order made by a judge at chambers is not an order of the court. Day v. Buckingham (1894), 87 Wis. 215, 58 N. W. 254. The informality and the uncertainty attendant upon the granting and filing of the orders and the length of the period during which they were not filed nor recorded prevents their recognition as valid and timely orders. Any other ruling would permit the judge to sign an order and thereafter carry it in his pocket until he was minded to have it properly entered of record.”

The rationale of the above-quoted extract is deemed to apply with equal force to decisions or orders deciding motions after verdict. We determine, therefore, that the instant order granting a new trial is ineffective and void.

Exercise of this Court’s Discretion to Grant a New Trial.

In a situation such as this, where the trial court has determined that a new trial should be had in the interest of justice but the court’s decision or order for a new trial is ineffective because of failure to comply with the requirements of sec. 270.49, Stats., this court deems it its duty to review the record to determine whether it should exercise its discretion under sec. 251.09 to order a new trial in the interest of justice.

“However, this court should not exercise its independent discretion to direct a new trial in every instance where we would be compelled to find no abuse of discretion on the part of the trial court in attempting to direct a new trial in the interest of justice, but in which the order is found to be defective for noncompliance with sec. 270.49 (2). Our discretionary power in this respect should be sparingly employed, and ought not to be invoked except in a situation where we are convinced that there has been a probable miscarriage of justice if the jury’s verdict were permitted to stand.” Cary v. Klabunde (1961), 12 Wis. (2d) 267, 270, 107 N. W. (2d) 142.

On July 9, 1962, an altercation took place on plaintiff’s farm between defendant and plaintiff in which defendant struck plaintiff causing the latter to fall to the ground. The testimony is in dispute as to whether defendant struck plaintiff only once or several times. Plaintiff testified that the surface of the ground where he fell consisted of rocks and gravel. That same day plaintiff sought medical attention from Dr. Krueger, a physician, at Hayward. The doctor found the following injuries upon examining plaintiff: A bruise over the left eye and the bridge of the nose; a bruise over the right side of the lower back in the sacroiliac region; and a spot on the left knee which was sore and tender to pressure although there was no visible sign of injury. Plaintiff testified that he bled from a cut on the forehead. Dr. Krueger took X rays of the skull and pelvis region, which X rays were negative with respect to disclosing any bone injury. Dr. Krueger testified that he suggested plaintiff use cold compresses on the bruises and that he may have recommended aspirin for pain.

Plaintiff testified that the cut on his forehead healed in a month or two leaving a scar one-fourth to one-half inch in length in the crease between eye and nose; his back bothered him for about six weeks and after two months caused no further trouble; but he had a swelling on his knee and one spot on the inside of the knee continued to ache. The cold applications did not help his knee and on October 22, 1962, he went to see Dr. Krueger again. Dr. Krueger took X rays of both knees, which apparently disclosed no bone injury, and recommended warm applications.

Plaintiff went to see Dr. Krueger only once more and that was on September 13, 1963, only a few days prior to trial. On this occasion the doctor thought that the left knee was somewhat larger than the right, and found some tenderness on the inside aspect of the knee. He also “thought there was a small tissue mass maybe about the size of, oh, my thumbnail, half an inch across or three-quarters of an inch across.” Dr. Krueger testified that this latter “will probably represent a so-called ganglion of the tendon involving the near [sic] joint.” A ganglion is a herniation of the membrane that encloses a tendon. The doctor did not recommend operating to correct this condition for the reason that sometimes this type of operation is unsuccessful and occasionally these ganglions disappear of their own accord. However, he did not think it likely the latter would occur and it was his opinion this condition is permanent. When asked his opinion with respect to permanent disability, Dr. Krueger stated, “I would suggest, that the disability of the left knee in my opinion would be in relationship to the entire leg as a member at about fifteen percent.”

Dr. Sorenson, an Eau Claire physician specializing in orthopedic surgery, examined plaintiff on September 19, 1963, and testified as an expert medical witness for defendant as follows: He thought plaintiff had a little increased swelling in the soft tissue overlaying the inner aspect of the knee and that plaintiff probably had suffered a pulling or tearing of some of the ligaments that attach to the inner aspect of the knee. He believes plaintiff’s condition is temporary and not permanent and estimated plaintiff’s present disability at two and one-half percent of the leg.

In January, 1962, plaintiff had acquired a farm having larger acreage than his prior farm. At the time of defendant’s acts of assault and battery in July, 1962, plaintiff had a herd of 14 dairy cows but testified he would like to have increased his herd to 25 cows. He further stated that because of his knee condition he was unable to do the increased farm work which would be necessary to care for 25 cows. He estimated his annual net profit per cow at about $50. On this appeal plaintiff attempts to justify the $10,000 damage award on the basis of the larger profit which he would realize from a herd increased by 11 cows during the' twenty-two years which plaintiff had before reaching age sixty-five. However, there was no testimony of any effort on his part to increase his herd between January and July, 1962; of his ability financially to have so increased his herd; or whether his barn was large enough to have accommodated such a herd.

Plaintiff testified that his knee condition caused him difficulty in climbing ladders. However, it was established that since July, 1962, he has daily climbed the eight-foot ladder from the basement of his barn to the haymow above, used a ladder in painting his house, and also used a ladder in helping a neighbor repair a roof. Plaintiff also testified that his knee condition interfered with his walking, but this was disputed by the testimony of disinterested witnesses.

We deem significant the fact that plaintiff’s total medical bills were only $46 and a considerable part of that amount was for X rays. He never sought medical treatment after his second visit to Dr. Krueger in October, 1962. Furthermore he did not request any medication for pain nor was any prescribed. While these factors do not disprove plaintiff’s testimony that he did suffer pain, they do raise a serious doubt that plaintiff is suffering from a permanent disability of a character that would justify an award of $10,000 compensatory damages.

The summons and complaint commencing the action were served on January 18, 1963, some six months after defendant’s assault and battery of plaintiff. This complaint alleged compensatory damages in the sum of $3,500. After plaintiff’s examination by Dr. Krueger shortly before trial on September 13, 1963, the complaint was amended so as to allege permanent disability and to allege compensatory damages in the amount of $25,000.

After a careful review of the record we have the feeling that the award of $10,000 compensatory damages constitutes a miscarriage of justice. However, if the trial judge had approved of this award of damages on motions after verdict, this is not a case where we would be inclined to substitute our judgment for his, inasmuch as he had the opportunity to personally have observed plaintiff and the other witnesses who testified. Here not only did the trial judge not approve the award, but he expressly found the same to have been excessive.

Therefore, we conclude that a new trial should be ordered in the interest of justice with an option being extended to plaintiff to accept judgment for such reduced amount below $10,000 as the trial court shall determine would reasonably compensate plaintiff for his damages.

By the Court. — Order reversed and cause remanded for the entry of a proper order for new trial with an option to plaintiff to accept judgment in a reduced amount in lieu thereof in accordance with this opinion. No costs shall be taxed by either party on this appeal.

       In the instant case the circuit judge has his residence in Chippewa county. If upon signing the order on November 23, 1963, he doubted whether, by mailing it to the clerk of court of Sawyer county it would have been received in time to have filed it within the allotted two-month period, the judge could have filed it with the clerk of court of Chippewa county for authentication with directions to transmit it to the clerk of court of Sawyer county for filing. If this were done so that the order had been authenticated by the clerk of Chippewa county within the period allotted by sec. 270.49, for deciding motions after verdict, the order would become effective as of the date of such authentication. See sec. 252.11, Stats.