author: Hallows, J. Per Curiam

text:
    Keplin, Plaintiff and Appellant, v. Hardware Mutual Casualty Company and others, Defendants and Respondents: Heritage Mutual Insurance Company, Impleaded Defendant and Respondent.

      April 3

    June 30, 1964.

      For the appellants there were briefs and oral argument by Eugene,A. Bitters of Ripon.
    For the respondents there was a brief by John P. Mc-Galloway, Sr., of Fond du Lac, and for the impleaded defendant, Heritage Mutual Insurance Company, by Edward T. O’Neill of Fond du Lac, and oral argument by Mr. McGallo-way and Mr. O’Neill.

       Motion for rehearing denied, without costs, on September 4, 1964, Heffernan, J., not participating.

   Hallows, J.

The plaintiffs in their briefs raise ,a total of 44 questions although not all of them are individually argued. We do not propose to discuss all these assignments of error because many of them are duplicitous and may be combined under a broader statement of the issue; others are without merit and some are unsubstantiated by the facts or the facts relied upon are not pointed out to this court in such detail that the assigned error can be properly analyzed and discussed. The record is voluminous and it is not the duty of this court to sift and glean the record in extenso to find facts which will, support an assignment of error.

It is contended by the plaintiffs that the removal of the cases from the Ripon municipal court and the consolidation of them with the Troudt cases in the circuit court at Fond du Lac and the resulting delay in scheduling the cases for trial violated plaintiffs’ rights guaranteed by the Seventh and Fourteenth amendments of the United States constitution. Presumably the plaintiffs mean some other amendment than the Seventh as that amendment is clearly inapplicable. However, the thrust of the plaintiffs’ argument is that the legislature provided a court of competent jurisdiction in Ripón to try the plaintiffs’ cases and they have a right to-that forum. The legislatoré in addition to providing a competent court in Ripon also provided by sec. 269.59, Stats., that a circuit court may upon notice order any civil action pending in any other court in the same county to be transferred to its court for consolidation for trial when such consolidation for trial would be proper if the actions were originally brought in the circuit court. The exercise of the power granted under this' section is discretionary and hence the question presented is whether the circuit court abused its discretion in ordering consolidation. The plaintiffs have pointed out no reason why it was an abuse of discretion for the circuit court to consolidate the cases in its court. These cases all arose out of the same automobile accident. The facts and proof in each case are practically identical. Only two drivers and a passenger are involved. These are not involved dr unusual' cases excepting for the unduplicable feat of Troudt’s car landing on top of the Keplin car after hitting a telephone pole. The consolidation of these cases did not result in any deprivation of the plaintiffs’ constitutional rights.

The plaintiffs further argue that the delay in the proceedings prior to the actual trial denied plaintiffs of their right to a speedy trial and gave in part as instances a delay of six days in entering an order of consolidation, several months in selecting a successor judge by Circuit Judge Russell E. Hanson, delays of the successor Judge Helmuth Arps in hearing and granting defendants’ successive applications for interpleaders and breaches of stipulations to take adverse examinations. We do not find in the record the plaintiff filed an affidavit of prejudice against Judge Hanson so as to require the application of sec. 261.08 (1), Stats. This section requires upon the filing of an affidavit of prejudice that the chief justice of this court through the court administrator shall appoint a judge to hear the matter; in no event shall the circuit judge against whom an affidavit of prejudice has been filed appoint a successor judge.

It is true, there was a delay from May 14th until December 12th in 1962 before Judge Arps was appointed, but we do not find any refusal of the circuit court to request an assignment of a successor judge or any repeated requests, nor does the record show Judge Hanson informed counsel for the plaintiff it was not necessary to file an affidavit of prejudice and that he would disqualify himself. This court cannot consider facts outside the record even though stated as such in the briefs. We find no cause for complaint by the plaintiffs of the time consumed in deciding and allowing the interpleaders and in reference to the depositions. It is probably true that this passage, of time was frustrating to the plaintiffs but the delay cannot be said to be entirely without their counsel’s fault.

The participation of Heritage Mutual Insurance Company in the case is challenged as being improper. Troudt sued the Heritage Mutual to determine a question of coverage on a policy on his own car which was not involved in the accident. The issue was whether Heritage was liable under that policy in the event Troudt was liable to the Keplins. It is argued that after a discovery examination it was apparent that Heritage Mutual Insurance Company was not liable under the terms of its policy regardless of Troudt’s liability to the Keplins. After the trial it was stipulated by the various defendants that the Heritage Mutual had no coverage on the vehicle operated by Troudt at the time of the accident and the complaints and cross complaints against Heritage Mutual should be dismissed.

We do not see how the issue of coverage between.two defendants in any manner adversely • affected the- plaintiffs’ recovery against the defendants. It is not the rule that cases can only be consolidated when they involve identical issues-between identical parties as claimed by the plaintiffs.' 'All-the issues in consolidated cases for trial need not be between the same parties. However, if such issues are too diverse so as to be confusing to the case as a whole or the presence of an issue would prejudice a party not involved, the cases should not be consolidated. The issue of coverage was not a ground for refusing to consolidate the cases and consequently riot error to allow the parties to remain in the trial until that issue was determined.

The plaintiff complains the conduct, mannerisms, ■ intonations, and remarks of the trial judge created an appearance-of bias against the plaintiffs to the point that a fair trial was not had. It is true the trial judge may unintentionally deprive a party of a fair trial by the manner of conducting-a case. Swonger v. Celentano (1962), 17 Wis. (2d) 303, 116 N. W. (2d) 117. The plaintiffs consider that criticism of their counsel, objections to inadmissibility of evidence, the rejection of requested manner of proceeding, conveyed the idea to the jury the plaintiffs’ claim was fantastic and the requested procedure was novel. Plaintiff’s counsel 'seems supersensitive and unduly critical.

We do not consider these complaints to be justified by the record, nor do we consider it error for the trial court to refuse to give general preliminary instructions to the jury prior to the admission of evidence. Recently, the bench and bar have discussed the proposal of trial courts giving general instructions to the jury at the opening of trial at least to the extent of advising the jury of its role and function in the trial. As yet no statute or rule of court requires instructions-to be so given and it is not error for failing to do so even though we might agree the procedure had merit. We have examined the pages of the record cited as illustrative of impatience and boredom by the court with the plaintiffs’ evidence and fail to find any such impatience or boredom, much less error. While a trial judge should conduct a trial free from prejudicial error, there is no requirement he enjoy it.

Complaint is made the testimony of Officer Sauer concerning statements made to him by the plaintiff within seventy-two hours of the accident were inadmissible under sec. 325.28 (1), Stats. Such statements made to a law officer in the ordinary course of his duties of investigating an accident and who had no interest in the outcome of any lawsuit have been held to be admissible. Musha v. United States Fidelity & Guaranty Co. (1960), 10 Wis. (2d) 176, 102 N. W. (2d) 243; Hoffman v. Labutzke (1941), 238 Wis. 164, 298 N. W. 583; Kirsch v. Pomisal (1940), 236 Wis. 264, 294 N. W. 865. It is quite true, plaintiffs’ counsel had a right to have Exhibits 43, 47, and 46 properly identified as to position of the camera, distance from the object photographed, and direction in which the camera was pointed, but such rule did not affect the admissibility of the exhibits. Such information concerning the exhibits was required by the rules of practice of this court on appeal. Sec. 251.251 (10), Stats. 1961. We fail to see how the disposition of this matter by the court amounts to reversible error. We point out, however, a new rule on identification of photographs was created, effective September 1, 1963, and now requires such information at the time of the receipt of the exhibits in evidence unless such information is deemed to be impracticable by the trial judge. Sec. (Rule) 270.202.

Various objections are made that intonations, expressions of surprise and disbelief on the part of the trial judge to what were normal trial procedures by the plaintiffs reflected his bias and prevented the plaintiffs from having a fair trial. We cannot agree with the interpretations placed upon the trial court’s conduct by the plaintiffs. We have read the record of the incidents cited, and cannot find in the remarks of the trial judge anything unusual or not normal. The argument the trial judge’s mannerisms, intonations, and remarks affected the result of the case is baseless in the record.

The instructions given to the jury are claimed by the plaintiffs to be couched in prejudicial terms and to give undue prominence to the defendant’s contention. We do not find the instructions merit the criticism of the plaintiffs. The instructions were in most respects general, standard, and accepted instructions and were properly applied to the facts.

The last contention made in Case No. 281 is that certain costs taxed by the plaintiff should not have been limited and others reduced by allocating part to Case No. 282. On review the trial court decided the costs for plats, court commissioner’s fees, witness fees, and stenographic transcript should be divided between these two cases and only half of them allowed in Case No. 281. We agree the trial court could eliminate the cost of a certified copy of the charge to the jury and one half of the expense of those items used in common by plaintiffs. Under the plaintiffs’ theory these expenses could be recovered in full in both cases if the plaintiffs were successful or be taxed in full in the successful case if the other case failed. Items of cost are controlled by the statute, but the trial court may allocate the reasonable costs between several cases tried together to avoid duplication.

On oral argument and in the brief in Case No. 282 the plaintiffs stressed the alleged error of restricting the number of peremptory challenges they had at the trial. As plaintiffs they were restricted to three peremptory challenges which they had to share. It is quite true that if the two cases were tried separately, each of the plaintiffs would have had three peremptory challenges. However, several plaintiffs in one action are considered one party and unless there .exists no adverse interest, the same rule applies to defendants. Sec. 270.18, Stats. Although there is a distinction between two cases being consolidated into one action and being consolidated for trial, we think in the absence of adverse interest the plaintiffs in the several cases consolidated for trial may be treated as one party. Here, the plaintiffs, as driver and guest respectively, sued the other driver. True, in Case No. 281, the guest case, William Keplin was a defendant but in that capacity he was represented by different counsel and received peremptory challenges as a defendant.

The plaintiffs contend it was error for the trial court not to admit the Keplin car in evidence. The respondents treat this alleged error as one of viewing the car. The car itself was offered in evidence and the question is not governed by sec. 270.20, Stats., relating to a view of the premises or property relating to the controversy. Under this section the court may allow a view if necessary to a just decision. A view is for the better understanding of the testimony and is not in itself evidence. Here, the admissibility of evidence was at issue and the trial court was in error in not admitting the car in evidence. It had been preserved in the state it was at the time of the accident and under the decision of Thompson v. Princeton (1956), 272 Wis. 589, 76 N. W. (2d) 273, it should have been admitted. Although the auto was not physically in the courtroom, that fact is immaterial where the evidence is movable and is available at or near the situs of the trial so that it may be inspected. We realize this holding raises custodial problems but the trial court has ample power to require the party offering such evidence to withdraw it and keep it intact and safe at his own expense and subject to the further order of the court so that the same may be available on appeal if required. When the exhibit is withdrawn, the court should require some suitable substitute, i,e., in this case, photographs of the car.

However, since there were at least eight photographs of the car in evidence, we cannot find this error was prejudicial. On this appeal we allowed the plaintiffs to bring this offered evidence to Madison where it was viewed by the court at the time of oral argument. The purpose of offering the car in evidence was to prove that after the defendant’s car hit the telephone pole it bounded on top of the plaintiffs car and did not hit or ram the rear end of the plaintiff’s car, the bumper in that area being undamaged. From this fact the plaintiffs contend the defendant’s car must have hit the telephone pole at a terrific speed. The nature, scope, and type of damage to the plaintiff’s car are accurately shown by the photographs and since the jury found the defendant negligent, we cannot hold the error in not admitting the car in evidence was prejudicial. If the plaintiffs also requested a view of the car under sec. 270.20, Stats., as contended by the defendants, it follows that such refusal was not prejudicial error for the same reasons.

The plaintiffs offered testimony of an expert, one Vik, concerning the physical facts and particularly the tests which he had made of the braking ability and stopping distance in relation to the accident. This testimony was rejected on the grounds the car used in the tests was different from the one driven by the defendant, and the tires, the braking apparatus and its working conditions, were not testified to as being similar to those on the defendant’s car. Consequently the tests were not based upon comparative facts. Without specific reference to the record, it is claimed by the plaintiffs the court would not permit the expert to interpret speed charts to established reaction distance and to testify as to where the defendant’s stopping action began. The plaintiffs had hoped to prove by this expert and so argued on appeal that the defendant was traveling at least 75 m. p. h. and possibly 100 m. p. h. and such excessive speed was the sole causal negligence of the accident. We agree the results of the tests performed by Vik were not properly admissible in evidence. As to the other rejected testimony of this witness the plaintiffs’- objections on appeal are too general and sweeping to be considered by this court. No specific questions, objections, and rulings thereon are pointed out for this court to review and this court will not search the voluminous record for them.

The actual speed of the defendant is not in evidence, but the plaintiffs argue from the physical facts it was excessive. True, negligence as to speed may be reasonably inferred from physical facts. Rodenkirch v. Johnson (1960), 9 Wis. (2d) 245, 101 N. W. (2d) 83. And although such physical facts may not determine the exact rate of speed, they may under some circumstances characterize or give sufficient relative definiteness to the speed as will support an allocation of comparative negligence. To the same purpose, a table of average stopping distances may be admissible in evidence. See Mainz v. Lund (1963), 18 Wis. (2d) 633, 119 N. W. (2d) 334, and Baker v. Herman Mut. Ins. Co. (1962), 17 Wis. (2d) 597, 117 N. W. (2d) 725.

However, counsel argues the finding of the jury in assessing only 35 percent of the causal negligence to the defendant cannot be supported and contends the speed of Troudt’s automobile was so excessive and so far beyond the 45 m. p. h. posted speed that it alone was causal. It is stressed the defendant and another salesman had spent part of the afternoon at a tavern in Princeton and that shortly before the accident the defendant picked up his car at the Arcade parking lot a short distance west of the scene of the accident and started toward Ripon. Shortly thereafter and before the accident the defendant passed his friend on the highway. From the distances and computations of time, it is argued the defendant’s speed at the time of the accident was at least 75 m. p. h. and probably close to 100 m. p. h.

While it is no doubt true speed is the biggest single factor in accidents because of its effect and relation to lookout, management and control, and other elements which bear upon the causation or elimination of accidents, there is no principle of law that excessive speed even of .75 or 100 m. p.. h. is necessarily or as a matter of law the sole cause of an accident. The issue of the defendant’s negligence was submitted to the jury and it concluded the backing out of a driveway by a man seventy-five years of - age onto an arterial highway when he sees oncoming traffic was 60 percent negligent as against 35 percent negligence of the oncoming. car. What another jury might do with the same facts is not the test if there is any credible evidence supporting the finding as made. We believe there is and the trial court was not in error in allowing the verdict to stand.

After the verdict the trial judge notified the parties he would come to Fond du Lac on a certain date and hear motions after verdict. At that time no notice of motion, had been served by any of the parties. Notices of motion were then served by the defendants upon counsel for the plaintiffs. On an appointed day, counsel for the plaintiffs appeared specially, claiming no adequate notice had been given him and because of other work was unable to prepare his motions. The court suggested plaintiffs’ counsel argue whatever motions he wished to make and submit them in writing later. Counsel refused to argue but thereafter did file motions after verdict. It is true the full-time limit for motions was not given to plaintiffs’ counsel because the date of the hearing on motions was set by a judge not living in Fond du Lac. This is frequently done by out-of-town judges. The inclination of counsel for the plaintiffs not to co-operate is obvious.

Presumably the judge thought motions had been filed when, in fact, no such motions had been made. The trial court cannot be blamed for setting, a date for hearing motions after verdict when normally such motions would have been made. The plaintiffs were not prejudiced by the lack of the full time allowed for such motions by sec. 269.31, Stats. The special appearance of counsel was an idle act. The short-; ness of the time in the notice was not jurisdictional. Neither did-secs. 269.31 and 990.001 (4)-, Stats., have any application.' Such objections as existed at the time of argument of the motions after verdict were waived by the plaintiffs when counsel submitted to - the court the written motions, one of which was granted. ■

In Case No. 282, the plaintiffs argue that eight different instructions requested were refused by the trial judge. These instruction's had to do with physical facts, causation, the right to assume rules of -the road would- be obeyed, the conduct of attorneys and judge, speed, and other matters. These matters were all substantially covered by the trial judge in the instructions given but it is complained they give undue prominence to the contentions 'of-the defendants. Some of the plaintiffs’ requested instructions were erroneous and as to the others, the trial court is not required to accept the exact language of a requested instruction. The instructions given by the court were proper.

We have extended this opinion to a greater length than the contentions- merit. We do this so counsel for the plaintiffs will realize we have considered all the objections he has raised although many have not been discussed. We point out the plaintiffs’ briefs have been- framed in the language of an exposé of the manner in which the judicial business of the trial court was conducted. Under the heading, “Nature of Action” in the plaintiffs’ brief in Case No. 281, it is stated, “The appeal attempts to bring before the Wisconsin Supreme Court a record of the step by step rulings of the presiding judiciary from commencement of an action, through pretrial procedure, through trial of the litigation, through post-trial procedure prior to judgment and procedure from judgment until transmittal of the record to this court. The appeal seeks review by this court of all oral rulings; all decisions, and all orders which were prejudicial to the plaintiff during all of the various stages of the proceedings.” We do not doubt counsel’s sincerity but we do his judgment and cannot approve the approach or the many remarks and accusations made in the brief concerning the trial judges who were involved.

From the very start of this lawsuit and apparently thereafter every step in which counsel was unsuccessful is alleged as a cause for complaint and error, real or imaginative. As soon as Judge Hanson ordered a consolidation of the case, his presence in the case was objected to. Judge Arps was substituted until Judge Parnell was appointed to preside at the trial. Apparently none of these experienced and highly respected trial judges proved satisfactory to plaintiffs’ counsel.

We believe counsel has made remarks and statements which on sober reflection he should regret having made and will eventually realize that sometimes one is out of step with the army instead of the army being out of step with him.

By the Court. — Judgments affirmed.

The following memorandum was filed September 4, 1964:

Per Curiam

{on motion for rehearing). The court is satisfied that the motion for rehearing should be denied. However, there is a statement appearing in the court’s opinion which merits explanation. Regarding the filing of an affidavit of prejudice against Judge Russell E. Hanson, the opinion states, at page 325 :

“We do not find in the record the plaintiff filed an affidavit of prejudice against Judge Hanson so as to require the application of sec. 261.08 (1), Stats.”

We recognize that an affidavit of prejudice was in fact filed against Judge Hanson. The foregoing statement in context with subsequent comments found in the opinion was intended to point out that the affidavit was filed after Judge Hanson had already disqualified himself. Standing alone, however, the statement above quoted may be understood to suggest that no affidavit was filed; we now expressly disavow the latter meaning.

The fnotion for rehearing is denied, without costs.

         Reardon v. Terrien (1934), 214 Wis. 267, 252 N. W. 691; Schmidt v. Riess (1925), 186 Wis. 574, 203 N. W. 362; Whalen v. Eagle Lime Products Co. (1913), 155 Wis. 26, 143 N. W. 689.


source: Caselaw Access Project

author: Fairchild, J.

license: Public Domain

text:
    Bromund, Appellant, v. Holt, Respondent.

      April 28

    June 30, 1964.

      For the appellant there were briefs by Joling & Schwartz, Robert J. Joling, and Jay Schwarts, all of Kenosha, attorneys, and Burton A. Scott of Kenosha, and Jack L. Sachs of Chicago, Illinois, of counsel, and oral argument by Robert J. Joling and Mr. Sachs.

    For the respondent there was a brief by Wickham, Borgelt, Skogstad & Powell of Milwaukee, attorneys, and Edmund W. Powell of Milwaukee, and William A. Sheldon of Keno-sha, both of counsel, and oral argument by Edmund W. Powell.

   Fairchild, J.

Plaintiff contends that the evidence presented issues of fact for the jury both (1) whether Dr. Holt was negligent and (2) whether such negligence was a substantial factor in bringing about harm to plaintiff. He contends, accordingly, that it was error to direct a verdict against him.

Defendant challenges the sufficiency of the evidence to establish either negligence or causation. In addition defendant asserts that as a matter of law there can be no recovery upon a negligence theory in this type of action.

The interest of plaintiff which has been invaded is his interest in freedom from unjustifiable criminal litigation. The basic question is whether that type of interest is protected against unintentional invasion. If so, and if negligence and causation are also present, a cause of action would exist.

Plaintiff concedes that his action “is based upon a theory of negligence arising out of respondent’s [Holt’s] improper performance of the autopsy he had been hired to do.” He argues that since Dr. Holt did not demur to the complaint, Dr. Holt cannot now challenge the legal sufficiency of a cause of action based simply on causal negligence. The complaint, however, alleged that Dr. Holt’s acts “were unlawfully, wil-fully, wantonly and maliciously done.” Failure to demur thereto would not concede in any sense that a cause of action could be based on negligence alone. Moreover a defendant is not, by failure to demur, precluded from a challenge to the sufficiency of the evidence to establish a cause of action. Defense counsel did raise this point in the trial court in support of his motion for a directed verdict.

In our view, defendant is correct in his contention that there can be no recovery here upon a negligence theory, and because that will dispose of the appeal, it is unnecessary to consider whether there was evidence of negligence and causation sufficient to present issues for the jury.

The gist of the asserted cause of action is that Dr. Holt communicated erroneous and invalid opinions to the coroner which were a substantial factor in bringing about the arrest and prosecution of plaintiff; that in forming and communicating those opinions, Dr. Holt failed to exercise the degree of care ordinarily exercised by pathologists.

The law, for reasons of policy, closely circumscribes the types of causes of action which may arise against those who participate in law-enforcement activity or in the functioning of the judicial system.

Some of the participants in judicial proceedings are clothed with virtually complete immunity from liability. Others are not liable unless they are shown to have acted with malice. If Dr. Holt falls in either class with respect to his participation in the prosecution of plaintiff, he sustained no liability upon the theory that his negligence caused an unjustifiable prosecution.

Judicial officers acting in the exercise of their jurisdiction are exempt from civil liability for malicious prosecution irrespective of the existence of malice or corrupt motives. A public prosecutor acting in his official capacity is absolutely privileged to initiate or continue criminal proceedings. Although there is authority to the contrary, the same immunity is, in general, extended to the police and other law-enforcement officers acting within the scope of their duties, with the possible exception of a situation where they themselves initiate the complaint or concoct false evidence.

Witnesses are immune from civil liability for damages caused by false and malicious testimony, if relevant to the issues in the matter where the testimony is given. Parties and counsel are immune from liability for relevant statements in pleadings and otherwise in the course of judicial proceedings.

It has been held that physicians appointed to examine a person in connection with proceedings to determine sanity are quasi-judicial officers and immune from civil liability for actions within their jurisdiction. Other courts have held that physicians in such cases are expert witnesses and have, on the theory of absolute privilege for relevant testimony, dismissed actions based on the physicians’ certificates.

Where a defendant does not have the relationship to the judicial proceeding which will make him immune, he is still not held liable to the person who has been subjected to unjustifiable prosecution in the absence of malice.

“The interest in freedom from unjustifiable litigation receives protection in actions which, for want of a better name, have been called malicious prosecution and abuse of process. Obviously such an interest has much in common with that of reputation. It is evident, for example, that the institution of criminal proceedings by one individual against another amounts to a publication of the charge that he is guilty of the crime for which he is prosecuted; and that this is a form of publication which, above all others, is dangerous to the repute of the person so charged. In the first instance, therefore, such ‘malicious prosecution’ might well have been included as a branch of the law of defamation. There are at least three reasons why it has not been so included, and is regarded by the courts and by legal writers as a separate tort.”

Two of the elements essential to a cause of action for malicious prosecution are (1) that there was malice in instituting the proceedings and (2) want of probable cause therefor. We have heretofore quoted with approval the statement by the supreme court of Colorado of the policy reason for denying a cause of action unless all the elements of malicious prosecution be proved:

“It is for the best interests of society that those who offend against the laws of the state shall be promptly punished, and that any citizen who has reasonable grounds to believe that the law has been violated shall have the right to cause the arrest of the person whom he honestly and in good faith believes to be the offender. For the purpose of protecting him in so doing, it is the generally established rule that if he has reasonable grounds for his belief, and acts thereon in good faith in causing the arrest, he shall not be subjected to damages merely because the accused is not convicted. The rule is founded on the grounds of public policy in order to encourage the exposure of crime.”

Where defendant has falsely informed a police officer that plaintiff had committed an offense, plaintiff may have a cause of action for slander under certain circumstances. Here, however, public policy protects the informer by according him a privilege, conditioned upon his good faith. He is held liable only if he acted with malice.

There may be some question whether the absolute immunity or unconditional privilege should extend to all public employees who participate in law-enforcement activity in the course of their employment. Does public policy require that all police officers, all investigators, all those who make technical studies in aid of law enforcement be protected from having to defend themselves against claims that they acted maliciously as well as erroneously in causing prosecution which ultimately turned out to be unjustifiable? If such immunity extends to all persons in these classes, Dr. Holt would not be liable in this case even if malice were shown.

But even if a person employed by the public to assist in law enforcement, as was Dr. Holt, does not enjoy immunity, we conclude that the same considerations of public policy which require proof of malice as an element of an action for malicious prosecution or defamation under these circumstances must exclude liability founded upon mere negligence. In our opinion, the interest in freedom from unjustifiable criminal litigation is, as a matter of policy, not protected from unintentional tort.

Two cases which have come to our attention illustrate the points involved.

A Florida district court of appeals considered a case where a state beverage department enforcement agent negligently and- mistakenly identified plaintiff as an offender, and thus caused him to be prosecuted. The court said:

"... We are convinced that there exists no cause of action like that alleged here and that there is no legally-recognized cause of action for improperly swearing out an arrest warrant other than the old common-law action of malicious prosecution. . . .
“The public policy aspects of our holding on this appeal are easily apparent. On the one hand, surely citizens should be given some protection against the irresponsible instituting against them of civil or criminal proceedings by other persons, even law enforcement officers. See Melvin v. Pence, 1942, 76 U. S. App. D. C. 154, 130 F. 2d 423, 143 A. L. R. 149. On the other hand, law enforcement and the protection of society from crime would likely be adversely affected if law enforcement agents were subject to liability in damages for simple negligence in the performance of their duties if the citizens they charge with crime should not be convicted. See Atkinson v. Birmingham, 1922, 44 R. I. 123, 116 A. 205, 36 A. L. R. 366. The requirement, established for generations, in malicious prosecution of the proof of malice and want of probable cause seems consistent with both of these considerations. In any event, no sufficient reason appears why this time-honored requirement in malicious prosecution should be now discarded in favor of an action of negligence, as here, for careless performance of duty and failure to make due inquiry, without a showing of malice and want of probable cause.”

The United States court of appeals, Eighth circuit, considered a case where the assistant city engineer, city building inspector, and fire inspector caused prosecution of plaintiff by making allegedly false affidavits, charging an offense. The court said:

“The established rule of law is that when a prosecution is instituted by public officers, acting within the scope of their official duties, it is against public policy to allow an action for malicious prosecution to be maintained against them on account of such official acts ‘although probable cause be absent and malice be present in their enforcement of the law. ”

In the case now before us we do not decide whether defendant Holt would be liable to plaintiff if the prosecution of plaintiff were caused by false representations maliciously made by Holt. We do decide, however, that Dr. Holt is not liable, assuming his opinions were merely negligently arrived at and caused the prosecution of plaintiff.

By the Court. — Judgment affirmed.

       Restatement, 2 Torts, p. 734, sec. 281.

       Sec. 263.12, Stats.

       Annos. 173 A. L. R. 836, 837, 838, 28 A. L. R. (2d) 646, 648.

       Restatement, 3 Torts, pp. 392, 393, sec. 656, 118 A. L. R. 1450, 1451, 1452.

       Prosser, Law of Torts (3d ed.), Malicious Prosecution, pp. 852, 856, sec. 113; Anno. 28 A. L. R. (2d) 646, 649.

        Calkins v. Sumner (1860), 13 Wis. 215 (*193), 218-220 (*196, *197); Schultz v. Strauss (1906), 127 Wis. 325, 328, 106 N. W. 1066; Keeley v. Great Northern R. Co. (1914), 156 Wis. 181, 187, 145 N. W. 664.

         Jennings v. Paine (1855), 4 Wis. 372 (*358), 375 (*361); Larkin v. Noonan (1865), 19 Wis. 93 (*82), 99 (*88); Keeley v. Great Northern R. Co., supra, p. 187, footnote 6; Schafer v. Suckle (1963), 21 Wis. (2d) 425, 430, 431, 124 N. W. (2d) 577.

       Anno. 145 A. L. R. 711, 733; Bartlett v. Weimer (7th Cir. 1959), 268 Fed. (2d) 860, 862; Duzynski v. Nosal (7th Cir. 1963), 324 Fed. (2d) 924, 929; Beckham v. Cline (1942), 151 Fla. 481, 10 So. (2d) 419; Linder v. Foster (1940), 209 Minn. 43, 48, 295 N. W. 299.

        Bailey v. McGill (1957), 247 N. C. 286, 100 S. E. (2d) 860; Dyer v. Dyer (1941), 178 Tenn. 234, 156 S. W. (2d) 445; Fisher v. Payne (1927), 93 Fla. 1085, 113 So. 378; Springer v. Steiner (1919), 91 Or. 100, 178 Pac. 592; Dabkowski v. Davis (1961), 364 Mich. 429, 111 N. W. (2d) 68; Dunbar v. Greenlaw (1956), 152 Me. 270, 128 Atl. (2d) 218; Doyle v. Newill (Pa. 1954), 17 Fayette Legal Journal, 123; Mezullo v. Maletz (1954), 331 Mass. 233, 118 N. E. (2d) 356; Perkins v. Mitchell (1860), 31 Barb. (N. Y.), 461; Brandt v. Brandt (1936), 286 Ill. App. 151, 3 N. E. (2d) 96.

       Prosser, Law of Torts, supra, p. 852, footnote 5.

        Pollock v. Vilter Mfg. Corp. (1964), 23 Wis. (2d) 29, 37, 126 N. W. (2d) 602.

        Montgomery Co. v. Pherson (1954), 129 Colo. 502, 508, 272 Pac. (2d) 643; Gladfelter v. Doemel (1958), 2 Wis. (2d) 635, 640, 87 N. W. (2d) 490.

        Joseph v. Baars (1910), 142 Wis. 390, 391, 392, 125 N. W. 913; Often v. Schutt (1962), 15 Wis. (2d) 497, 503, 113 N. W. (2d) 152.

        Wilson v. O’Neal (D. C. Fla. 1960), 118 So. (2d) 101, 104, 105. Certiorari dismissed by supreme court of Florida (1960), 118 So. (2d) 101. Annotated, 15 University of Miami Law Review, 101. And, see Rogers v. Barbera (1960), 170 Ohio St. 241, 164 N. E. (2d) 162; Glidden Co. v. Laney (1937), 234 Ala. 475, 175 So. 296; Jenkins v. Gilligan (1906), 131 Iowa 176, 108 N. W. 237; Maxon v. Security Ins. Co. (1963), 214 Cal. App. (2d) 603, 615, 616, 29 Cal. Rptr. 586; Richter v. Neilson (1936), 11 Cal. App. (2d) 503, 54 Pac. (2d) 54. Cf. Owens v. Mench (Pa. 1952), 24 Lehigh County Law Journal, 522, 81 D. & C. 314.

        Springfield v. Carter (8th Cir. 1949), 175 Fed. (2d) 914, 918.


author: Beilfuss, J.

text:
    Hemmis, Plaintiff in error, v. State, Defendant in error.

      June 1

    June 30, 1964.

      For the plaintiff in error there was a brief by Baumblatt & Goodman of Racine, and oral argument by Robert P. Goodman.

    For the defendant in error the cause was argued by Robert D. Martinson, assistant attorney general, with whom on the brief were George Thompson, attorney general, William

      A. Plats, assistant attorney general, and John Peyton, district attorney of Racine county.
   Beilfuss, J.

The defendant contends (1) that the search and seizure of the automobile was illegal, (2) that search and seizure of his clothing was illegal, and (3) that evidence was insufficient to support a finding of the defendant’s guilt.

Search and Seizure.

The state takes the position that search and seizure is not in the case because of the agreement of counsel at the time of the defendant’s motion to suppress. The agreement of counsel was made in the presence of the court after a preliminary discussion. A reading of the record reveals that both counsel and the court were aware of the agreement. Pursuant to the agreement evidence relating to the 1954 Buick and its contents was received and no evidence relating to the defendant’s clothes except the shoes was offered by the state. The shoes themselves were not offered but witnesses testified as to their observations of them for the purpose of comparing them with shoe prints at the scene of the crime.

While there is nothing before us to suggest that the agreement was not valid we need not pass on the question because of our opinion that the search of the automobile was valid under the circumstances herein.

The officers did not have a search warrant on either occasion — Burlington or Richmond.

We recognize that the Fourth amendment of the United States constitution as well as our own constitutional provisions against unreasonable search and seizure apply to evidence in state courts as well as federal.

The United States supreme court has set forth the rule that search and seizure (other than that incident to a valid arrest) is not to be conducted by police officers without a search warrant unless exceptional circumstances exist.

“The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate’s disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity and leave the people’s homes secure only in the discretion of police officers. Crime, even in the privacy of one’s own quarters, is, of course, of grave concern to society, and the law allows such crime to be reached on proper showing. The right of officers to thrust themselves into a home is also a grave concern, not only to the individual but to a society which chooses to dwell in reasonable security and freedom from surveillance. When the right of privacy must reasonably yield to the right of search is, as a rule, to be decided by a judicial officer, not by a policeman or government enforcement agent.

“There are exceptional circumstances in which, on balancing the need for effective law enforcement against the right of privacy, it may be contended that a magistrate’s warrant for search may be dispensed with. But this is not such a case. No reason is offered for not obtaining a search warrant except the inconvenience to the officers and some slight delay necessary to prepare papers and present the evidence to a magistrate. These are never very convincing reasons and, in these circumstances, certainly are not enough to by-pass the constitutional requirement. No suspect was fleeing or likely to take flight. The search was of permanent premises, not of a movable vehicle. No evidence or contraband was threatened with removal or destruction, except perhaps the fumes which we suppose in time would disappear. But they were not capable at any time of being reduced to possession for presentation to court. The evidence of their existence before the search was adequate and the testimony of the officers to that effect would not perish from the delay of getting a warrant.” Johnson v. United States (1948), 333 U. S. 10, 13, 68 Sup. Ct. 367, 92 L. Ed. 436. See also Ker v. California, supra.

The question before us is whether facts herein fall within the exceptional-circumstances doctrine so as to justify a search of the automobile without a search warrant.

The officers were told by the wife of the proprietor that she heard voices of more than one person. When apprehended Fogle attempted to flee from the scene. Footprints from two different types of shoes were immediately noted outside at the point of entry (the broken window) and inside near an electrical outlet used to connect the cord of a large electrical drill. The drill was on the floor near the safe and a hole had been drilled in the safe adjacent to the combination lock. From these facts the police concluded that more than one person was involved in the attempted burglary. The police searched the area and came upon the 1954 Buick parked in a residential area about two blocks from the scene of the crime. This was about 11 p. m. The officers knew the residential area well and knew the car did not belong to any of the residents. The license number was checked and the police found that it was issued to Mrs. Fogle for a Studebaker and not the Buick. The officers inquired of the two nearest residents as to whether the car belonged to guests or visitors and were informed that it did not. The car was unoccupied and unlocked. A carton for a large industrial drill of the same brand name was on the back seat of the car. At this stage the officers had probable cause to believe that the car was used by one or more of the persons involved in the felony. The automobile could be and subsequently was used to affect a flight from the scene by one of the participants. The police actions in entering and searching the car at this stage of the investigation were reasonable, did not unduly invade the privacy of the defendant, and there were “exceptional circumstances” which justified the entry and search of the car without a search warrant.

The officers entered the car, opened the glove compartment where they found Fogle’s driving license and the keys to the car. Under the front seat was a safe and vault manual. The officers locked the car and left the same to continue the search. In a few moments one of the residents called the police to inform them that the car was leaving.

The defendant was apprehended and arrested as related above. The additional search of the vehicle in Illinois produced evidence which was only cumulative. The receipt of this evidence, even if erroneous, was not prejudicial to the defendant. Cf. Pulaski v. State, post, p. 450, 129 N. W. (2d) 204.

None of the defendant’s clothing nor investigation reports concerning the clothes was introduced at the trial. The search of defendant was not prejudicial.

Sufficiency of the Evidence.

All of the evidence was circumstantial. A finding of guilt can rest upon evidence which is entirely circumstantial. In State v. Johnson (1960), 11 Wis. (2d) 130, 134, 104 N. W. (2d) 379, we stated:

“The evidence against him is entirely circumstantial, but this is not unusual in a criminal case. Not many criminals are caught in the act like a child with his hand in the cooky jar. Circumstantial evidence may be and often is stronger and as convincing as direct evidence. The same rule of the burden of proof in a criminal case applies to circumstantial evidence as to positive, direct evidence; and in both cases the evidence must be sufficiently strong and convincing to establish the facts of guilt beyond a reasonable doubt in the mind of the trier of the facts. Circumstantial evidence has its inherent defects but human testimony, too, has its infirmities. A notion exists that all circumstantial evidence should be viewed with distrust because it can establish, at most, only a possibility of guilt. Such an opinion, based on the theory that circumstantial evidence can only be the basis for conjecture and is impotent to correctly indicate or to satisfactorily establish the facts upon which guilt must rest to the required degree of certainty, is unwarranted. It is true that circumstantial evidence in many cases may be so weak as not to meet the standard of proof. But circumstantial evidence may be and often is stronger and more satisfactory than direct evidence; Schwantes v. State (1906), 127 Wis. 160, 106 N. W. 237, and Spick v. State (1909), 140 Wis. 104, 121 N. W. 664, which discuss the subject at length.”

In addition to the facts stated above, the following circumstances appear in the record of the trial. The police officers testified that when the defendant sat down and crossed his legs at the police station they viewed the sole of the defendant’s shoe and that it corresponded with the imprint at the scene of the crime.

When defendant was questioned by the arresting officer in Illinois he stated that the car belonged to his “buddy” and that his “buddy” was in Chicago.

Fogle testified that he and the defendant came to Burlington together in Mrs. Fogle’s car, that he left the defendant at a bowling alley, that the defendant knew nothing about the burglary, and that he had given the defendant permission to drive the car.

The credibility and weight to be given the testimony of Fogle was for the trier of the fact. The trial court could disbelieve Fogle and could find the defendant guilty beyond a reasonable doubt on the evidence before him.

By the Court. — Judgment affirmed.

        Mapp v. Ohio (1961), 367 U. S. 643, 81 Sup. Ct. 1684, 6 L. Ed. (2d) 1081; Ker v. California (1963), 374 U. S. 23, 83 Sup. Ct. 1623, 10 L. Ed. (2d) 726; Holt v. State (1962), 17 Wis. (2d) 468, 117 N. W. (2d) 626.

        Johnson v. United States, supra.


author: Currie, C. J.

text:
    Ken-Crete Products Company, Respondent, v. State Highway Commission and another, Appellants.

      June 1

    June 30, 1964.

      For the appellants there was a brief by Mittelstaed, Heide, Sheldon & Hartley and William A. Sheldon, all of Kenosha, and oral argument by William A. Sheldon.

    For the respondent there was a brief by Wickhem, Consigny & Sedor of Janesville, and John E. Malloy of Kenosha, and oral argument by John C. Wickhem.

   Currie, C. J.

The two issues presented by this appeal are:

(1) Did the trial court err in receiving evidence as to the cost of installing an overhead conveyor which allegedly was necessary to maintain the same cost of production in Ken-Crete’s plant as existed before condemnation ?

(2) Did the trial court err in refusing to take testimony as to whether the jury returned a quotient verdict ?

Receipt of Evidence with Respect to Cost of Installing Overhead Conveyor.

As a result of thé taking of the .44 acres, Ken-Crete was deprived of the use of this land on which to store piles of sand and gravel used in the manufacture of its concrete blocks. After the taking, Ken-Crete leased some land to the west owned by a railroad company adjoining Ken-Crete’s premises, and now its supply of sand and gravel is stored on this leased land. The aggregate is now brought by trucks and dumped there. The concrete-block manufacturing plant is located close to the east boundary of Ken-Crete’s property, and other buildings occupy the south portion of its remaining premises, so Ken-Crete had no available land abutting on the highway available for storing sand and gravel, which necessitated the leasing of the railroad premises for such purpose.

Before the taking, a “loader” or elevator carried the sand and gravel up to the hopper where it would be loaded into the machines which manufactured the blocks. One employee operated both the loader and the automatic machinery used in manufacturing the blocks. After the taking, the sand and gravel had to be transported to the manufacturing plant, a distance of approximately 240 feet from where it was stored on the leased land.

Three expert witnesses, Kerr, Williams, and Wolf, all with long experience with concrete-block manufacturing machines, were permitted to testify, over the objection of the condemnors, that the most-economical way of transporting this sand and gravel from the stockpiles on the leased land to the block-manufacturing plant would be by installing an overhead conveyor system. The estimated cost of the overhead conveyor as testified to by the witness, Kerr, was $43,900. Ken-Crete called two experienced realtors, Bear and Pfennig, to testify to the value of its premises before and after the taking. Bear, in his testimony, stated, that he had consulted with Kerr, Williams, and Wolf in familiarizing himself with the machinery involved and that in his judgment a well-informed buyer would consult with such experts before making a decision regarding the property. Pfennig’s testimony made no reference to that of Kerr, Williams, and Wolf.

The condemnors contend it was prejudicial error to admit the testimony of Kerr, Williams, and Wolf with respect to the advisability of installing the overhead conveyor and the cost of such installation. Their principal argument in support of this contention is that such conveyor would constitute a capital improvement for which recovery may not be had under sec. 32.09 (6), Stats.

Under sec. 32.09 (6), Stats., the measure of damages in a condemnation proceeding where there is a severance is the difference between the fair market value of the whole property immediately before the taking and the fair market value of the remainder immediately thereafter. By use of the phrase “and without restriction because of enumeration” found in sec. 32.09 (6), it seems reasonable to conclude that the legislature intended that every element which affects fair market value should be considered. This is in accord with the great weight of authority. See 4 Nichols, Eminent Domain (3d ed. 1962), p. 3 et seq., sec. 12.1, where the author states (p. 4) that, “All elements of value which are inherent in the property merit consideration in the valuation process.” The author also states that evidence is admissible that the remainder area is no longer capable of use for a particular purpose or that its purpose or that its facility therefor has been impaired. See 4 Nichols, supra, sec. 14.243, and cases cited at note 4, page 580. These principles were approved by this court in Carazalla v. State (1955), 269 Wis. 593, 70 N. W. (2d) 208, 71 N. W. (2d) 276 (on rehearing), where the court stated (p. 608b) :

. in case of a partial taking of land by eminent domain any damages to the remaining land, which results from the use to which the parcel taken is to be devoted, is a proper item to be included in determining the value of the owner’s remaining land after the taking.” (Emphasis supplied.)

It is conceded that the highest and best use to which Ken-Crete’s premises might be devoted at time of taking was a concrete-block manufacturing plant.

The testimony with respect to the advisability and cost of installing the overhead conveyor was not offered by Ken-Crete to establish a separate item of damages, but only as an element to be considered in arriving at the value of the remainder of its property after the taking. The underlying theory is that a prospective purchaser would pay $43,900 less for the premises after the taking than before, if he would have to expend that amount to provide a facility to enable the block-manufacturing plant to continue to operate at the same capacity as before the taking. Under this theory, as borne out by the testimony of Ken-Crete’s expert witnesses, the expenditure of this $43,900 would not cause the value of the remaining premises to exceed the value of the whole premises as they existed before the taking. The jury had the right to accept the testimony which substantiated this theory.

In an analogous situation involving agricultural property, which, because of a partial taking, would require additional fencing in order for the remaining property to be used thereafter in the same fashion, this court, in Nowaczyk v. Marathon County (1931), 205 Wis. 536, 238 N. W. 383, held that the cost of additional fencing was a proper element to be considered in determining the after value of the remaining property. In Nowaczyk, supra, the court made the following pertinent statements (p. 541) :

“ . the necessity of fences must be considered in its tendency to minimize the value of the farm, rather than as an independent and separately itemized element of damages. The question is not what the particular fence desired by appellees at this time may cost, but rather the underlying inquiry is whether the farm as a whole, in view of the purposes for which it is adapted, will be minimized in value because extra fencing may be required and such fence might need to be repaired, maintained, and replaced.’
“This is doubtless a correct statement, and being true we are unable to see why the estimated cost of construction, maintenance, and replacement may not be shown, as they must be considered in estimating the diminution in value caused by the extra fences.”

Tested by the foregoing principles the court is constrained to hold that the anticipated cost of installing the conveyor system was an element that the jury could properly consider in determining the value of the remaining property after taking. Therefore, the trial court properly overruled the condemnors’ objections to such testimony.

The condemnors point to other evidence which they contend disclosed a far less expensive way of getting the sand and gravel delivered into the block-manufacturing plant than installing an overhead conveyor. This argument has to do with the weight to be accorded the testimony relating to the conveyor, not its admissibility.

Quotient Verdict.

The three expert witnesses who gave opinion testimony as to the value of Ken-Crete’s premises before and after the taking were Bear, Pfennig, and Borgman. The latter, an employee of the American Appraisal Company, was called by the condemnors.

The before value testified to by these three witnesses was:

Bear .. $200,000
Pfennig .. 194,000
Borgman.... . 152,200
Average: $182,066.67

The after value testified to by them was:

Bear ...... ■m Cn O o o o
Pfennig . . . Go oo o o o
Borgman .. 4^-oo o o o
Average: eo CO CO 00 CM m-

The jury found the before value to be $182,000 or only $66.67 less than the average of the before value testified to by these three witnesses. However, the after value found by the jury was $139,000, which is $3,283.33 less than the average of the after values testified to by the three witnesses. This would strongly indicate that the jury arrived at its before value by taking such average and eliminating the odd dollars and cents. It is readily apparent, however, that the jury could not have adopted such method in determining the after value.

There were two dissents to the verdict and after the verdict the condemnors requested the trial court to call the two dissenters and the foreman of the jury for the purpose of finding out whether or not the jury did use the “average” or “quotient” method in arriving at their verdict. The trial court refused to this relying on the rule that the testimony or affidavits of jurors will not be received to establish their own misconduct or to impeach their verdict. See Olson v. Williams (1955), 270 Wis. 57, 70, 70 N. W. (2d) 10; Dishmaker v. Heck (1915), 159 Wis. 572, 578, 150 N. W. 951; Wolfgram v. Schoepke (1904), 123 Wis. 19, 24, 100 N. W. 1054. The action of the trial court in this respect was clearly proper. In any event, in order to invalidate the instant verdict on the ground of it being an improper quotient verdict, there must be proof that the jurors bound themselves in advance to the quotient method of determining their answer to the before value. Schiro v. Oriental Realty Co. (1959), 7 Wis. (2d) 556, 564, 97 N. W. (2d) 385; Pierce v. Chicago & M. E. R. Co. (1909), 137 Wis. 550, 559, 560, 119 N. W. 297; Anno. 52 A. L. R. 41, 44. A verdict is not rendered bad merely because it is arrived at by the quotient method. Schiro v. Oriental Realty Co., supra, page 564.

By the Court. — Judgment affirmed.

       The pertinent provisions of this statute read:
      “In the case of a partial taking, the compensation to be paid by the condemnor shall be determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication, to the following items of loss or damage to the property where shown to exist.
      “(e) Damages resulting from actual severance of land including damages resulting from severance of improvements or fixtures and proximity damage to improvements remaining on condemnee’s land.”

       Under present sec. 32.09 (6) (g), Stats., the cost of fencing “reasonably necessary to separate land taken from the remainder of condemnee’s” except where this fencing is provided without cost to the condemnee is made an element of severance damages. This statutory provision was enacted long after the Nowacsyk Case was decided.


author: Wilkie, J.

text:
    Waddell, Plaintiff in error, v. State, Defendant in error.

      June 1

    June 30, 1964.

      For the plaintiff in error there was a brief and oral argument by Frank M. Coyne of Madison.
    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were George Thompson, attorney general, and William A. Plats, assistant attorney general.
   Wilkie, J.

Two issues are raised on this writ of error.

1. Was defendant’s guilty plea induced by misrepresentations by the prosecuting attorney ?

2. Was the sentencing court’s rejection of probation, and the imposition of a ten-year prison term, an abuse of discretion under the circumstances of this case ?

Waddell alleges in his petition for writ of error that the prosecuting attorney orally agreed to guarantee Waddell probation if he plead guilty to the charge. This agreement, he alleges, was a quid pro quo for his written promise to plead guilty if the polygraph test revealed deception in his answers to questions relating to the matter at issue.

Because the prosecuting attorney lacked the power to guarantee Waddell probation, and further, because the prosecuting attorney in fact vigorously argued that Waddell should be incarcerated fór a substantial period of time, Waddell claims that his plea was induced by misrepresentation, and hence should be vacated and the judgment of conviction set aside.

However, in this record we simply have the defendant’s assertions relating to the prosecutor’s conduct. The record does not contain any facts to back up the defendant’s charges and therefore, on this writ of error there is no basis for holding that the defendant’s guilty plea was induced by any misrepresentation by the prosecuting attorney.

Waddell’s claim that the ten-year prison term represents an abuse of discretion by the sentencing judge is based upon two lines of argument: (1) The court was influenced by data coming from improper sources. (2) Considering all of the data, the sentence is unreasonably severe.

As to the first claim, the court relied upon information contained in the presentence investigation report, data supplied by the prosecuting attorney in oral argument, and information communicated directly to the court by interested third parties.

The court may utilize data contained in a presentence investigation report in determining an appropriate sentence. Although there is no express general statutory authorization for these reports they are widely used by sentencing judges. Typically, such reports contain pertinent information relating to the defendant’s personality, social circumstances, and his prior criminal record (if any). The defendant’s access to these reports depends solely upon the discretion of the sentencing judge. The United States supreme court has held that denying the defendant or his counsel access to these reports does not violate due process under the Fourteenth amendment. We have held that such denial does not violate defendant’s right “to demand the nature and cause of the accusation against him” under sec. 7, art. I, Wisconsin constitution.

Whether this court should hold that, as a matter of law, the sentencing court must make the complete report, or any part of such report, available to the defendant and his counsel to permit them to offer rebuttal information or to make counterargument, is a matter we need not decide here since in the instant case the trial court made the entire pre-sentence report available to defense counsel prior to the hearing on sentence. Neither the defendant nor his counsel offered any rebuttal information or argument and there was no abuse of discretion in the court’s use of this information.

The prosecuting attorney may properly use information relating to complaints of other offenses in his argument on sentence. These complaints are evidence of a pattern of behavior which, in turn, is an index of the defendant’s character, a critical factor in the sentencing. Here, the prosecution alleged that the particular instance of fraud for which the defendant plead guilty was only one example from an entire life pattern of confidence schemes. The prosecution pointed out that in 1938 Waddell had been convicted of arson and placed on probation, which was subsequently revoked because of his involvement in fraudulent schemes. Numerous complaints, charging that Waddell had obtained property through fraudulent representations had been recently made by persons (mostly women) in this jurisdiction, and in Minnesota. The defendant had an opportunity to rebut the arguments and information of the prosecuting attorney. He did not. The court’s use of this information was not an abuse of discretion.

The sentencing judge may also utilize other information communicated directly to him (only if relevant to sentencing matters) by interested persons providing that he reveals the nature of the information and the identity of the communicants to the defendant.

In the instant case, at the arraignment the trial court questioned Waddell as to his recent activities particularly as to whether or not Waddell had contacted any women seeking to establish them as retailers for the food-supplement business he had previously engaged in, and at the time still pursued, as a wholesale distributor (in addition to his job as a restaurant cook). Waddell acknowledged that he had briefly spoken with a particular woman discussing, among other things, establishing her as a retailer for food supplements. At the close of the arraignment hearing, the court admonished Waddell not to have any contacts with the particular woman, or “anymore women” prior to the hearing on the sentence.

At the hearing on sentence, Waddell admitted that he had seen a woman (who had previously complained that he had defrauded her) subsequent to the April 11th hearing, and had had sexual relations with her during this time. The court concluded that by his own admission Waddell had made it clear that he would continue the pattern of manipula-five, exploiting behavior, regardless of what his occupational role might be. There was no abuse of discretion in the court’s use of this additional information.

As to the sentence itself, Waddell claims that even if the information upon which the sentence was predicated was properly considered, a ten-year prison term is so severe under these circumstances that its imposition was an abuse of discretion. We disagree.

The trial court concluded that, unless incarcerated, Waddell would continue his life-long pattern of manipulating and exploiting members of the community by confidence schemes. The trial court did not abuse its discretion, either in rejecting probation or in imposing a ten-year sentence. (The maximum punishment for the offense that could have been imposed was fifteen years, plus a fine of not more than $10,000, or both.)

By the Court. — Judgment affirmed.

        State v. Tuttle (1963), 21 Wis. (2d) 147, 124 N. W. (2d) 9.

       See authorizations for such reports in certain types of cases as discussed in State v. Carli (1957), 2 Wis. (2d) 429, 440c, 86 N. W. (2d) 434, 87 N. W. (2d) 830.

        Williams v. New York (1949), 337 U. S. 241, 69 Sup. Ct. 1079, 93 L. Ed. 1337.

        State v. Carli, supra.

       Such a practice was approved in divorce proceedings where the court, on its own initiative, gathers information on which at least in part it bases its decision on questions of child support. See Kritzik v. Kritzik (1963), 21 Wis. (2d) 442, 124 N. W. (2d) 581.

        State v. Tuttle, supra.


text:
    Estate of Reynolds: Borgrud, Appellant, v. First National Bank of Madison, Executor, Respondent.

      June 1

    June 30, 1964.

      For the appellant there was a brief and oral argument by Neil Stoveken of Bloomington.
    For the respondent there was a brief by Hall & Griffith of Madison, and oral argument by Laurence W. Hall.

   Fairchild, J.

1. The transcript of reporter’s notes. Respondent executor has moved to strike from the record the transcript of the reporter’s notes upon the ground that the transcript was not served and approved within the time and in the manner provided by secs. 274.115 and 274.117, Stats.

Sec. 274.115, Stats., provides that service of a proposed transcript of reporter’s notes, by either party, must be made within three months after service of notice of appeal.

Two purported transcripts are here. One of them was transmitted by the clerk of county court as part of the return of the record on January 16, 1964. It bears no county court filing stamp, and there is no order requiring the testimony to be transcribed and filed. There is nothing to indicate that it was ever served on respondent or approved by the county court, and respondent called attention to these deficiencies in an affidavit filed here March 4, 1964, in connection with its motion to dismiss the appeal and appellant’s motion for an extension of time for service of brief. We let the appeal stand, and granted the extension upon terms. It is clear that the purported transcript is not properly part of the record.

The second purported transcript represents an effort to cure the deficiencies of the first. The material facts are as follows: The notice of appeal herein was served on respondent November 19, 1963. The transcript was served on respondent more than three months thereafter, on March 24, 1964. The county court entered no order extending the three months’ time, specified by sec. 274.115, Stats. Appellant points out that the notice of appeal was not filed with the clerk of county court until December 26, 1963, and contends he had three months from that date within which to serve the proposed transcript. The time, however, is to be counted from service, and not from filing, of the notice of appeal.

Respondent served no proposed amendment to the transcript, and the trial judge approved the transcript without notice to respondent, and the clerk of county court transmitted it here as a supplemental return. Respondent moved promptly to strike it. Sec. 274.117, Stats., permits approval by the court without notice to the other parties if no amendments have been served within the time allowed. The judge must, however, act upon proof of timely service, and we consider that the approval was a nullity where the record showed the service was not timely. No facts appear upon which any waiver by respondent could be predicated.

It follows that the transcript must be stricken, and our review will be limited to the question whether the pleadings, decision, findings, and conclusions sustain the judgment.

2. The record supports the disallowance. As noted in the statement of facts, the county court stated both in the memorandum decision and in the conclusions of law that there was no evidence to support a finding as to the reasonable value of the alleged services. In the absence of such evidence the county court had no choice but to disallow the claim.

Appellant appears to concede that his claim was for compensation for personal services and therefore barred by the two-year statute of limitations except for the alleged 1957 agreement to pay at death. He makes no argument that under the circumstances the furnishing of board was not a personal service so that the period of limitation would be six years.

The court did find that Reynolds paid Borgrud $150 in 1957 and said, “Don’t worry about the rest of it, Andrew. I will leave you more than enough money to pay you what I owe you and then some.” Although the statement recognizes the existence of an obligation, it does not identify it nor provide any measure of its amount. The court evidently considered the statement too vague under the circumstances to create a contract and considered it no more than an indication that there would be a legacy. Consequently the court stated in the conclusions of law that the facts would not support the claim of an agreement to pay a debt upon death. It cannot be said as a matter of law that the statement made created the contract claimed and the conclusion of law also supports the disallowance of the claim.

The payment for board prior to January, 1945, as indicated in a receipt was evidence that the furnishing, of such board prior to that date was not gratuitous, but the findings showed that the circumstances changed during the time covered by the claim. During part of the time Reynolds lived in Borgrud’s home, but later on Borgrud, the claimant, lived in a home owned by Reynolds and his sister, who was Borgrud’s wife. This change in circumstances would be a reason why the arrangements between them may not have been the same at all times.

It does not appear probable from the record that there was a miscarriage of justice, and accordingly we do not exercise our discretionary power to reverse the judgment.

By the Court. — Judgment affirmed.

       As amended September 1, 1963. See 17 Wis. (2d) p. xix.

       Sec. 330.21 (5), Stats.

       See Estate of Fredericksen (1956), 273 Wis. 479, 480, 78 N. W. (2d) 878.

       Sec. 251.09, Stats.


author: Hallows, J.

text:
    Vasselos, Respondent, v. Greek Orthodox Community of St. Spyridon, Appellant.

      June 1

    June 30, 1964.

      For the appellant there was a brief by Walter & Hopp of Sheboygan, attorneys, and Walstead, Anderson, Bylsma & Eisenberg and William Gorham Rice of counsel, all of Madison, and oral argument by Mr. Alexander Hopp and Mr. Rice.

    For the respondent there was a brief and oral argument by Virgil W. Kalchthaler of Sheboygan.

       Motion for rehearing denied, with costs, on September 2, 1964.

   Hallows, J.

The difficulty in this case stems from the use of the general verdict because the court cannot determine what theory of the plaintiff’s case was accepted by the jury. However, under the rule we constantly cite, if there is any credible evidence, either facts or inferences which may be reasonably drawn from them, which under any reasonable view supports the verdict of the jury it ought not be disturbed. The trial court believed the award of $1 to the plaintiff was not supported by the evidence. We disagree.

The theories of recovery and of the denials exceed the scope of the pleadings and the testimony is in dispute. Plaintiff was a member of the defendant’s congregation which was confronted in 1956 with the problem of obtaining a new priest upon the retirement of its pastor. Plaintiff and several members of the board of trustees went to Chicago to discuss with the bishop of the Greek Orthodox Church the appointment of a young priest to fill the vacancy. At that meeting the plaintiff told the bishop that in addition to paying some $3,000 to $4,000 to the church’s building fund, he would also pay $100 per month for five years to supplement the salary of a young priest so that he would receive $350 per month. No question is raised in this case concerning the $3,000 paid to the building fund.

According to the plaintiff’s version he was to pay the defendant $100 per month for five years to supplement a young priest’s salary on the condition the priest taught the children the Greek language and on the condition such sum would be needed. The plaintiff relies on a letter he wrote to the bishop in June of 1956 shortly after the conference in which he stated, “I will also give toward the salary of the priest $100 monthly for 5 years if it is necessary, to procure and have as our priest an efficient and capable youg [sic] leader of our church and Greek Community. ... so that we will be enabled to have the best priest and teacher so that our children will be imbued with the Greek language and religion.”

There is dispute in the testimony as to when the plaintiff and the trustees of the church had a conference regarding the commitment of the plaintiff. Plaintiff argues the meeting took place before the new priest took office, which was approximately January 1, 1957. The defendant claims it was about a year later. The plaintiff testified he made it clear at such conference the $100 per month was contingent upon the priest’s teaching the children Greek and also was dependent upon the need of such financial assistance by the church. The testimony on behalf of the defendant was to the effect the teaching of Greek was not a condition of the payment and the financial necessity, if a condition at all, was to be determined by the usual methods of bookkeeping employed by the church which accumulated losses from year to year. There was also evidence which would indicate the plaintiff waived the conditions and they were imposed long after the promise or offer was made in the presence of the bishop.

The plaintiff argues he made a conditional-pledge agreement in the nature of an indemnity contract or he made a conditional gift. In either event the breaches consisted of the priest’s failure to continue to teach the Greek language, that the church did not need the $100 per month because there was no operating deficit and such yearly losses shown by the books were caused in part by capital expenditures which should have been charged to the building fund. The plaintiff also contends to accumulate yearly losses was error and each year was to be treated separately. The evidence is in dispute whether the building fund was solely for the purpose of providing a residence for the priest or whether it also included remodeling and repairing of the church.

The new priest taught Greek to the children for about one and one-half years and then announced he was no longer going to teach it. After about a year the teaching of the Greek language was resumed with a lay teacher. The plaintiff paid $1,200 for four years, generally after the close of the year and when asked for the contribution by a member of the board of trustees. In November of 1961 the plaintiff informed the church he would make no more payments because the conditions of his commitment had not been complied with. He testified he did not want to disrupt the campaign of the church for pledges by stopping his payment sooner and upon the announcement of the priest that the Greek language would no longer be taught. He also testified when he was asked for the $1,200 each year it was paid upon assumption it was due because it was requested.

The trial court held there was credible evidence to sustain either the plaintiff’s or the defendant’s version of the facts. However, in its memorandum decision the trial court stated there was no credible evidence to justify the finding of $1 damages on either a contract or conditional-gift theory of recovery. The court found $426.40 to be the least amount a jury could find on the evidence. Incidentally, if this were a proper case for an additur, the rule of Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393, should have been applied and the reasonable amount determined by the court and a new trial granted unless the defendant accepted judgment for such amount. The proper manner of granting the new trial and the option is explained in Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis. (2d) 568, 117 N. W. (2d) 660.

We do not consider it necessary to decide whether the plaintiff made a contract with the defendant or a conditional gift to the defendant, or the extent of the conditions. The general verdict was in favor of the plaintiff. The jury could have believed the plaintiff had proved a cause of action for damages on a contract theory and the only condition which was a part of the contract was the teaching of the Greek language. As to this condition broken, the plaintiff proved no personal damages and consequently the most he could recover would be nominal damages of $1.

We cannot agree with the trial court that because the jury found for the plaintiff it must have necessarily accepted the plaintiff’s version of the conditions relating to the financial need, the scope of the building fund, and the method of ascertaining the deficit. The trial court’s view of the inadequacy of the damages is based upon the theory that the jury must have accepted the totality of the plaintiff’s version of the conditions. However, if the jury found the letter to the bishop as being determinative of the plaintiff’s commitment, it could have considered plaintiff promised $100 for five years in consideration of the appointment of a young priest and the only condition of the payment thereof was his teaching the children the Greek language and religion. This view is entirely reasonable and the verdict should stand. The defendant’s motion for judgment on the verdict should have been granted.

By the Court. — The order appealed from is reversed, with directions to enter a judgment on the verdict in favor of the plaintiff.


text:
    Hardware Dealers Mutual Fire Insurance Company, Appellant, v. Home Mutual Insurance Company, Respondent.

      June 2

    June 30, 1964.

      For the appellant there was a brief and oral argument by Aaron Belongia of Milwaukee.
    For the respondent there was a brief and oral argument by Alan Shajrin of Milwaukee.

       Motion for rehearing denied, with costs, on September 2, 1964.

   Wilkie, J.

The one issue presented on this appeal is as follows: Under the circumstances of this case, was Maher causally negligent as a matter of law with respect to lookout in that he failed to estimate Kollross’ speed as he (Maher) entered the intersection and/or he failed to make additional observations of Kollross’ vehicle as he traveled through the intersection ?

A driver who is entering an intersection controlled by signal lights with the light in his favor has a duty to observe traffic to either side of him, to determine whether or not a car approaching the intersection, and likely to enter the intersection at the moment the observer arrives, will fail to yield the right-of-way.

This duty of observation carries the corollary requirement of making an accurate estimate of the approaching vehicles’ distance and speed so that the observer may determine that given a certain distance and speed, an approaching car will necessarily run the light even if the driver applies his brakes at that moment. The driver enjoying the right-of-way must then take the necessary steps to avoid a collision.

In the case at bar Maher’s observation, when he first saw the Kollross car approaching from the right, was not adequate to make the relevant judgment, i.e., whether Kollross’ speed and distance from the intersection were such that he would in all probability fail to yield the right-of-way, even if Kollross applied his brakes at that moment. But even assuming Maher was negligent as to lookout as he entered the intersection, it is clear that this negligent conduct was not causal. In fact, Kollross was driving 25 miles per hour from the middle of the block until the collision in the southwest quadrant of the intersection. Had Maher properly estimated Kollross’ speed, he could have reasonably assumed that at that distance and speed, Kollross could yield the right-of-way if he responded to the red light. Further, Maher, after the initial observation, could reasonably assume that Kollross would respect the rules of the road and yield to the red light. The collision was actually caused by the failure of Kollross’ defective brakes at the entrance of the intersection. Thus, Maher’s negligence as to lookout, if any, was not a cause, in fact, of the accident.

Hardware contends that Maher had a duty to continue making observations to either side as he passed through the intersection. Had he done so, he would have been able to observe Kollross penetrating the intersection against the red light. He then could have accelerated slightly, and avoided the collision.

A driver passing through an intersection controlled by signal lights, with the green light in his favor, need not make continuing observations to either side, after making an initial observation and determination that a car approaching from the side was traveling at such speed and was at such a distance from the intersection that the driver could, as a matter of physical fact, yield the right-of-way if he responded to the red light. This rule was pronounced by the court in Wilson v. Koch, supra. In that case the defendant truck driver, moving in an easterly direction, approached an intersection controlled by signal lights. He stopped for a red light. When the light turned green, he looked to the north and observed a car at a distance and speed such that the driver could have yielded had he responded to the red light facing him. The defendant moved into the intersection as the car, moving from the north, ran the light and a collision occurred in the center of the intersection. The court held on these facts that the driver was not negligent as to lookout as a matter of law. After making the initial observation and determining that the vehicle approaching against the light could be stopped if the driver responded to the light, a driver, moving with the green light in his favor could proceed across the intersection without making further observation to either side. He could rely upon his right of way pursuant to the terms of sec. 346.37, Stats.

In the instant case, Maher had no duty of continuing observation, once he had made an efficient observation upon entering the intersection. The fact that Maher did not make such observation has no relevance here, because, as noted, such failure was not the cause in fact of the particular accident. He could proceed across the intersection relying upon Kollross stopping at the red light.

Oelke v. Earle, supra, relied upon by Hardware, is distinguishable. In that case, a driver (Maxfield) moving with a green light was held to have been causally negligent with respect to lookout for moving into an intersection with a green light (after approaching from a substantial distance with the light in his favor), when his ability to make an efficient observation to one side was impaired by a physical obstruction at such intersection. The competing car which ran the light had entered the intersection before his arrival, In effect, Maxfield was negligent with respect to his initial observation. No such barrier was present here, nor had Maher traveled a considerable distance with the light in his favor before entering the intersection. Moreover, Maher had nearly cleared the intersection before Kollross arrived.

By the Court. — Judgment affirmed.

         Ide v. Wamser (1964), 22 Wis. (2d) 325, 126 N. W. (2d) 59; Oelke v. Earle (1956), 271 Wis. 479, 74 N. W. (2d) 336; Wilson v. Koch (1942), 241 Wis. 594, 6 N. W. (2d) 659.

        Plog v. Zolper (1957), 1 Wis. (2d) 517, 85 N. W. (2d) 492.

       Sec. 346.37, Stats. Wilson v. Koch, supra.


text:
    Northwoods Development Corporation, Respondent, v. Klement and wife, Appellants.

      June 2

    June 30, 1964.

      For the appellants there was a brief by Avery & Avery of Antigo, and Schmitt, Wurster, Tinglum & Nolan of Merrill, and oral argument by J. Michael Nolan.

    For the respondent there was a brief by Winter & Winter of Antigo, and oral argument by Gustav Winter.

   Currie, C. J.

The following issues are presented by this appeal:

(1) Are the trial court’s findings with respect to adverse possession against the great weight and clear preponderance of the evidence ?

(2) Did the trial court commit prejudicial error in sustaining objections to questions designed to elicit from Hartman whether he would have intended to claim to the fence line if he had known that the fence line did not represent the true boundary line between his premises and lot 1 ?

Adverse Possession.

The evidence clearly establishes that the only act of possession was Hartman’s pasturing cattle on the disputed parcel. This act of possession was exclusive, open, and visible to all the world including the owners of record title to such parcel. Inasmuch as the disputed parcel was part of a larger pasture utilized by Hartman’s cattle, all of which was enclosed by fencing, Hartman’s possession was of a character to constitute adverse possession under sub. (1) of sec. 330.09, Stats., if coupled with a claim of title.

On the issue of claiming title the decisions of this court have repeatedly stated, “To constitute adverse possession there must be the fact of possession and the hostile intention— the intention to usurp possession.” Stone Bank Improvement Co. v. Vollriede (1960), 11 Wis. (2d) 440, 447, 105 N. W. (2d) 789; Bank of Eagle v. Pentland (1928), 197 Wis. 40, 42, 221 N. W. 383; Ryan v. Schwartz (1896), 94 Wis. 403, 411, 69 N. W. 178. It should be noted, however, that in each of the three cited cases the context in which the quoted statement appears makes it clear that the court was concerned with permissive user. In other words, if possession was pursuant to permission of the true owner, there could not be the hostile intent necessary to constitute adverse possession.

Appellants concede that the general rule is that, where an owner has exercised exclusive and open possession for twenty years or more up to a fence line under the assumption that the fence marked the true boundary of his premises, he has thereby acquired title by adverse possession to any land intervening between his own premises and the fence. They contend, however, that this rule does not apply in the instant case because it was obvious to Hartman that the fence, in diverging southwesterly to the lake from a true east and west line, could not mark the true boundary line between lots 1 and 2. Assuming that Hartman should have been put on inquiry we find no merit to this contention. In fact, there would seem to be a clearer case for spelling out hostile intent where the possessor knows the fence does not mark the true boundary line than where he does not have such knowledge. On this issue this court, speaking through Mr. Justice Marshall, declared in Ovig v. Morrison (1910), 142 Wis. 243, 247, 125 N. W. 449, that:

“Actual occupancy of land to the exclusion of the true owner, regardless of whether in good faith or bad faith, whether by mistake of boundaries or with intent to claim the land with full knowledge that the claim is wrongful, satisfies the calls of the statute.”

See also Burkhardt v. Smith (1962), 17 Wis. (2d) 132, 140, 115 N. W. (2d) 540; 4 Wisconsin Law Review (1926), 41.

Hartman testified at least twice that he intended to claim to the fence line. In any event, there being no evidence that his use for pasturing purposes was permissive, a presumption arises from the continuance of such exclusive possession for more than twenty years that the possession was hostile and adverse. Ovig v. Morrison, supra, pages 249, 250; Hamachek v. Duvall (1908), 135 Wis. 108, 114, 115 N. W. 634.

Appellants further argue that because Herbst had knowingly constructed the west portion of the fence so as to markedly diverge southwesterly from his true north boundary, the pasturing activities of Hartman on the disputed parcel were not sufficient to apprise Herbst of any adverse or hostile intent on Hartman’s part. We find this argument wholly unconvincing. Pasturing cattle regularly in an enclosed pasture by a person conducting a dairy farm would seem to us to be of a nature sufficiently open and notorious to afford the basis for adverse possession. The circumstance that the fence forming one side of the enclosed pasture was constructed by the true owner instead of the adverse possessor would appear to be entirely fortuitous. It is the entire enclosure of the pasture in the instant case which excluded Herbst and his successors in title from possession of the disputed parcel.

Appellants also contend that the trial court should have found no adverse possession on the part of Hartman because of his failure to pay taxes on the disputed parcel. While failure of the adverse claimant to pay taxes is an element to be considered in determining the issue of adverse possession it is not conclusive. Burkhardt v. Smith, supra, page 140; and Hamachek v. Duvall, supra, pages 115, 116.

We have no hesitancy in determining that the trial court’s finding of more than twenty years of open, continuous, notorious, and exclusive possession by Hartman of the disputed parcel was not against the great weight and clear preponderance of the evidence. By reason of such finding it necessarily follows that plaintiff has succeeded to Hartman’s title to this parcel and was properly granted judgment quieting title thereto.

Rulings on Evidence.

As previously mentioned, Hartman testified that he intended to claim the land to the fence. During cross-examination, appellants’ counsel put several questions to Hartman seeking to elicit from him whether he would then have intended to claim only to the true line had he known the fence was south of the true boundary of his premises. The trial court sustained objections to these questions, which appellants contend constituted prejudicial error. They argue that, if Hartman had only intended- to claim title to the true boundary line, his possession of the disputed parcel would not have been coupled with the hostile intent necessary to make such possession adverse.

This court in Bettack v. Conachen (1940), 235 Wis. 559, 564, 565, 294 N. W. 57, held that where the intention is not to claim to the visible boundary, such as a fence, unless it is the true line, the possession is not adverse. In support of this holding a number of earlier cases were cited together with the note, “Possession with intention to claim to true line only not adverse,” 97 A. L. R. 21. This seems to be the rule in most jurisdictions. 5 Thompson, Real Property (1957 Replacement), p. 547, sec. 2548. In 4 Tiffany, Real Property (3d ed.), p. 475, sec. 1159, this rule is severely attacked wherein the author comments:

“In no case except in that of a mistake as to boundary has the element of mistake been regarded as having any significance, and there is no reason for attributing greater weight thereto when the mistake is as to the proper location of a boundary than when it is a mistake as to the title to all the land wrongfully possessed. And to introduce the element of mistake, and then limit its significance by an inquiry as to the intention which the possessor may have as to his course of action in case there should be a mistake, an intention which has ordinarily no existence whatsoever, is calculated only to cause confusion without, it is conceived, any compensating advantage.” (Emphasis supplied.)

To us the above quotation from Tiffany makes good sense. So long as an adverse claimant in the position of Hartman actually intended to claim title to the fence it seems wholly immaterial to ascertain what his intention in that respect might have been if he had known some additional fact. The rule of Bettack v. Conachen, supra, should be limited to situations where the adverse claimant testifies that he only intended to claim to the fence or other visible boundary, if it constituted the true boundary line. Hartman testified to no such qualified intention. Therefore, the trial court properly sustained objections to questions which sought to ascertain a conjectural intent that he did not entertain at the time he exercised possession to the fence.

By the Court. — Judgment affirmed.

       Sec. 330.09, Stats., provides:
      “For the purpose of constituting an adverse possession by a person claiming title, not founded upon some written instrument or some judgment or decree, land shall be deemed to have been possessed and occupied in the following cases only:
      “(1) When it has been protected by a substantial inclosure.
      “(2) When it has been usually cultivated or improved.”

       The cases from other jurisdictions appear to have taken conflicting positions on the question of whether pasturing livestock is a sufficient possession to meet the requirements of adverse possession. Cases which hold that such is sufficient are: Faulks v. Schrider (D. C. Cir. 1940), 114 Fed. (2d) 587; McRae v. Ketchum (1939), 138 Fla. 610, 189 So. 853; Berry v. Cohn (1920), 47 Cal. App. 19, 189 Pac. 1044; and Young v. Newbro (1948), 32 Wash. (2d) 141, 200 Pac. (2d) 975. Contra: Richey v. Miller (1944), 142 Tex. 274, 177 S. W. (2d) 255, affirming 173 S. W. (2d) 490.