author: Beilfuss, J.

text:
    Estate of Mory: Robinson, Appellant, v. Werner, Administrator w.w.a., Defendant: Plankinton and another, Respondents.

      January 3

    February 1, 1966.

      For the appellant there was a brief by Thompson, Thompson & Grant of Oshkosh, and oral argument by Dean P. Grant.

    For the respondents there was a brief by McCarty, Burns, Swetz, Curry & Wydeven of Kaukauna, and oral argument by Neil J. McCarty.

   Beilfuss, J.

The issue confronting the court in this case is the effect of the lapse of a residuary clause in a will.

Appellant argues that when each residuary beneficiary died, there occurred a lapse of his share of the residue, resulting in an intestacy. However, when Emma Petti-bone died survived by two children, the anti-lapse statute prevented a lapse of her share. In effect, appellant argues that she is entitled to one half of the one-fourth residuary share of Emma Pettibone, under the anti-lapse statute, plus the three other one-fourth shares of the other residuary beneficiaries who predeceased testatrix without issue, under the laws of intestacy.

Respondents, on the other hand, argue that the shares of the deceased residuary beneficiaries do not lapse and pass by intestacy, but remain in the residue and pass by right of representation through the deceased residuary beneficiaries who were survived by issue. In effect, they argue that the entire residue must pass through Emma Pettibone to her issue. Thus, appellant is entitled to one half of the entire estate, and respondents are entitled to divide the other one half.

The trial court agreed with respondents, finding that the testatrix contemplated no lapse and no intestacy, and that the will evinced no intent to prefer Gwendolyn over Frank and his heirs. Thus, the court concluded that testatrix’s intent was that lapsed shares of the residuary remain in the residuary and pass to surviving residuary legatees.

We cannot read such an intent from the four corners of the will and hold that the lapsed shares of the residuary pass by the laws of intestacy.

Respondents cite Will of Schefe (1952), 261 Wis. 113, 52 N. W. (2d) 375; Will of Nielsen (1950), 256 Wis. 521, 41 N. W. (2d) 369; Will of Waterbury (1916), 163 Wis. 510, 158 N. W. 340; and Will of Reynolds (1912), 151 Wis. 375, 138 N. W. 1019, in support of their position.

Will of Reynolds, supra, at page 379, stated the general rule that “[a] residuary bequest which fails or lapses for any cause, and is not otherwise disposed of by the will, becomes intestate estate and descends to the heir.” However, the court looked at the language of the will and the facts and circumstances surrounding its execution to determine the testator’s intent. In that case and the others cited above the court was able to find an intent and avoid invoking the intestacy rule.

Only in Will of Ziehlke (1939), 230 Wis. 574, 284 N. W. 497, did the court apply the general rule, but in that case no person existed who fit the description in the residuary clause, so the intestate distribution was compelled, and nieces and nephews who were specifically disinherited took by the laws of descent.

In Will of Nielsen, supra, the court invoked the presumption from Estate of Hoermann (1940), 234 Wis. 130, 290 N. W. 608, that a testator is presumed to intend a complete distribution of his estate, and courts should favor a construction which passes property through the will rather than by intestacy. This is especially true when the will contains a residuary clause. The court then proceeded to place great weight on extrinsic facts and circumstances in evidence to conclude that the death of a residuary legatee did not result in a lapse and intestacy as to that share.

Will of Rosnow (1956), 273 Wis. 438, 78 N. W. (2d) 750, laid to rest the confusion found in the early lapsed-legacy cases in determining the intent of the testator. In that case the testator died survived by two sons, a daughter, and two grandchildren who were the children of a son who predeceased the testator. The testator’s will specifically disinherited one son and one grandchild. The residue was given equally to the daughter and other son. The will further provided for distribution of the son’s share should he predecease testator. However, it was the daughter who predeceased the testator without issue. If the deceased daughter’s share passed by intestacy, then the disinherited son and disinherited grandchild would share in the testator’s estate against his explicit command. We concluded that the lapsed share must pass by intestacy regardless of testator’s obvious intent to the contrary.

In rejecting the approach in Will of Nielsen, supra, the court stated:

“The extrinsic considerations in Will of Nielsen, supra, seem now to be much less persuasive to the result then reached than they did when the case was determined. On the other hand, Will of Ziehlke (1939), 230 Wis. 574, 284 N. W. 497, which is not referred to in the Nielsen opinion presents the same problems as the case at bar and disposes of them according to what we consider must be the rule when, by lapse of a legacy a partial intestacy has occurred.” (p. 441.)
“We find no escape from the logic of that opinion if we are to refrain, as we ought, from writing a new will for the testator. Therefore, we conclude that in the instant will the rules of descent take over when the testator made no provision for distribution of Meta’s share of the residue in the event he outlived her.” (p. 442.)

The commentators are in accord. “If a will gives a share of the residue to two or more persons, not as a class, and the gift to one of them lapses, the lapsed share goes as intestate property unless the will shows a contrary intent.” 2 Callaghan, Wisconsin Probate Law (6thed.),p. 367, sec. 15.140.

“It is now settled, by the weight of authority, that a lapsed part of the residuum does not itself pass into the remainder of the residuum, but that it passes to testator’s next of kin as intestate property.” 6 Page, Wills (Bowe-Parker rev.), p. 97, sec. 50.18.

This being the established rule in Wisconsin, we look to the will itself to determine the intent of the testatrix. None appears. The entire will consists of only two dis-positive clauses and the residuary, apart from the familiar formal requisites. Clause Second bequeathed jewelry to appellant. Clause Third bequeathed a watch to Frank Pettibone, father of respondents and brother of appellant. Clause Fourth gives the residue to the four brothers and sisters “to be divided into equal shares.”

There is nothing in the will to indicate an intent should the residuary gifts lapse. The fact that testatrix did not provide in her will for two brothers is certainly not significant under the rationale of the Ziehlke and Rosnow Cases. Therefore we hold that the gifts lapsed as to Minnie Peck, Rose Benoit, and William J. Mory, and pass as intestate property. The language used does not create a class gift or joint tenancy, and the presumption against intestacy is of no effect when the testatrix has provided no indication, by the language used, of her intent in this situation. What she would have provided had she anticipated that all the residuary beneficiaries would predecease her is a matter for conjecture and speculation. For us to presume her intent would amount to judicial will drafting, which we refuse to do.

The fourth share of the residue, that of Emma Petti-bone, did not lapse, but was saved by the provisions of sec. 238.13, Stats., and passes to the issue of Emma Pettibone according to the provisions stated therein.

It remains only for us to consider the merits of the rule announced in Rosnow and reiterated here. Respondents have attacked the rule applied in Wisconsin, although they concede that rule is the majority rule in this country, as one which is arbitrary and defeats the intent of the testator more often than it gives effect to that intent. On the other hand, the rule contended for by respondents could have the effect of having the entire estate go to a legatee to whom only a minute portion of the estate was originally bequeathed merely because of the fortuitous circumstance that other legatees predeceased the testator. In the absence of language creating a class gift or joint tenancy it is unreasonable to assume that the testator intended such a result.

It seems clear that when any residuary bequest lapses the ancient rules of intestacy as provided for by statute must apply. Such application causes the intestate property to pass to the testator’s next of kin, who is presumed to be the testator’s natural bounty. If the testator intends a different result, he is compelled to communicate that intent by language in the will.

By the Court. — Judgment reversed, and cause remanded with direction to determine distribution of the intestate property under the laws of descent.

       “238.13 Rights of issue of deceased legatee. When a devise or legacy shall be made to any child or other relation of the testator and the devisee or legatee shall die before the testator, leaving issue who shall survive the testator, such issue shall take the estate so given by the will in the same manner as the devisee or legatee would have done if he had survived the testator unless a different disposition shall be made or directed by the will.”


source: Caselaw Access Project

author: Currie, C. J. Gordon and Beilfuss, JJ.

license: Public Domain

text:
    Luedtke, Appellant, v. Luedtke, Respondent.

      January 4

    February 1, 1966.

      For the appellant there was a brief by William R. Slate of Markesan, attorney, and Richard K. Smith of Madison of counsel, and oral argument by Mr, Siente.

    For the respondent there was a brief and oral argument by John William Calhoun of Fond du Lac.
   Currie, C. J.

Appellant-plaintiff contends that the trial judge erroneously ruled that an affidavit of prejudice is not proper in a proceeding to modify the provisions of a divorce decree having to do with alimony and support payments for minor children. He raises no issue with respect to the merits of the order appealed from but contends such order is a nullity because made after there rested upon the trial judge a duty to remove himself from the case.

The general rule is that when a proper affidavit of prejudice is filed the trial judge has no jurisdiction to do anything but make a proper order of removal and initiate action for calling in another judge. Sub. (3) of sec. 261.08, Stats., provides one exception to this general rule, “The filing of such affidavit shall not deprive the presiding judge of the court in which the case is pending, of jurisdiction to determine pending motions made by the party filing such affidavit.” Respondent contends that this exception rules the instant appeal. We, however, prefer not to ground our holding herein on this exception inasmuch as appellant had no choice but to initiate the instant proceeding by an application in the nature of a motion.

The crucial question is whether an affidavit of prejudice can be properly filed against a judge to remove him from a proceeding instituted to modify the provisions of a judgment of divorce with respect to provisions thereof relating to alimony, support money or minor children. The applicable statute is sec. 261.08 (1), which provides in part:

“Upon the application of any party, who files his affidavit, that he has good reason to, and does believe, that he cannot have a fair trial on account of the prejudice of the judge, naming him, the court shall request the chief justice of the supreme court or other designated justice to call some other judge to attend and hold court during the current or next term for the purpose of exercising jurisdiction in all actions and proceedings in which applications for change of the place of trial have been made for such reason.”

Ever since Bacon v. Bacon decided in 1874, it has been the law of this state that sec. 261.08, Stats., and its predecessor statutes, do not apply to applications to modify or alter divorce judgments. Appellant attacks Bacon v. Bacon as having been erroneously decided because the court stated:

“We are of the opinion that the statutes which authorize a change of venue in civil actions for the alleged prejudice of the judge, do not extend to a proceeding of this kind.”

Appellant interprets this statement to mean that the court thereby held that an action for divorce was not a civil action. We do not so interpret the quoted statement. However, even if the reason originally given for the statutory interpretation made in Bacon v. Bacon was erroneous we would not feel free at this late date to change it. Even if appellant were correct in this interpretation, it would merely tend to substantiate Professor Goodhart’s statement, “A bad reason may often make good law.”

We deem that this long-accepted interpretation rests upon sound public policy. As was pointed out in Sang v. Sang, these applications to change provisions of divorce judgments can be more satisfactorily handled by the trial judge in view of his contact with the parties throughout the litigation. While that case involved an application to change custody of minor children, the same reason is applicable to applications to change alimony or support-money payments.

Appellant’s notice of appeal states that he appeals from the refusal of Judge Murphy to honor the affidavit of prejudice and from the order of February 16, 1965, denying appellant’s application for the reduction of alimony and support money. During oral argument counsel for appellant asserted that the refusal to honor the affidavit of prejudice was appealable because it determined a matter of jurisdiction. While sub. (3) of sec. 274.33, Stats., makes appealable an order which “decides a question of jurisdiction,” this has reference to the jurisdiction of the court, not that of the judge. Even a proper and timely filed affidavit of prejudice does not deprive the court in which it is filed of jurisdiction. Therefore, an order refusing to honor an affidavit of prejudice is not appealable. For this reason we have treated the instant appeal as being only from the order of February 16,1965.

However, here the ruling refusing to honor the affidavit of prejudice occurred in the proceeding in which the order of February 16, 1965, was entered. Thus this refusal to honor the affidavit of prejudice is reviewable by reason of the appeal from that order.

By the Court. — Order affirmed.

Gordon and Beilfuss, JJ.

(concurring). We fully agree with the majority’s opinion that the affidavit of prejudice was properly rejected by the trial judge. We add this comment only to reflect our belief that the scope of the opinion need not be limited to divorce proceedings. In any kind of case, when a party seeks to effect a change in a judgment, he should not be permitted to file a belated affidavit of prejudice and thereby win a hearing before a second judge.

The concept of Sang v. Sang (1942), 240 Wis. 288, 296, 3 N. W. (2d) 340, is, in our opinion, equally applicable to actions other than divorce proceedings. If a litigant wants to alter a divorce judgment he should go back to the court which entered the judgment; he is not free to have the ruling of one judge reviewed by another judge without taking an appeal. There is no reason why this rule should be confined to divorce actions. The evil of permitting a litigant in the aftermath of a judgment to oust the judge who made the original ruling is just as wrong in a contract case or a tort case as it is in a divorce case.

        Schwanke v. Reid (1962), 16 Wis. (2d) 521, 524, 114 N. W. (2d) 845; Woods v. Winter (1948), 252 Wis. 240, 247, 31 N. W. (2d) 504; Wisconsin Co-operative Milk Pool v. Saylesville Cheese Mfg. Co. (1935), 219 Wis. 350, 353, 263 N. W. 197.

       Where the judge against whom the affidavit of prejudice is filed is a county judge sitting in civil matters other than small claims and forfeiture actions, the judge refers the matter to the clerk, and the latter shall request the chief justice to designate another judge. See see. 253.142 (2) (a), Stats.

       34 Wis. 594.

       Other cases so holding are Hopkins v. Hopkins (1876), 40 Wis. 462, 465, and Sang v. Sang (1942), 240 Wis. 288, 296, 3 N. W. (2d) 340.

        Bacon v. Bacon, supra, footnote 3, at page 595.

        Estate of Atkinson (1963), 19 Wis. (2d) 272, 278, 120 N. W. (2d) 109, and cases therein cited.

       Goodhart, Determining the Ratio Decidendi of a Case, 40 Yale Law Journal (1930), 161, 163.

        Supra, footnote 4, at page 296.

       Before amendment of sub. (3) of sec. 274.33, Stats., to make appealable orders deciding a question of jurisdiction, an order refusing to honor an affidavit of prejudice was held not appeal-able. Will of Fraser (1908), 135 Wis. 401, 116 N. W. 3. Since the amendment an order denying a motion for change of venue was held not to be appealable. Trossen v. Burckhardt (1960), 9 Wis. (2d) 304, 100 N. W. (2d) 918. The rationale of that holding would be equally applicable to an order refusing to honor an affidavit of prejudice.

       Certiorari has been utilized to secure a review of an order passing on an affidavit of prejudice where the aggrieved party did not wish to proceed with trial on the merits until such ruling had been reviewed by the supreme court. State ex rel. Nichols v. Circuit Court (1926), 189 Wis. 629, 208 N. W. 490. Mandamus and prohibition have also been utilized to secure a review: State ex rel. Murray v. Reis (1949), 255 Wis. 507, 39 N. W. (2d) 396; State ex rel. Watson v. Clementson (1907), 133 Wis. 458, 113 N. W. 667; State ex rel. Deleglise v. Goodland (1906), 128 Wis. 57, 107 N. W. 29.


author: Currie, C. J.

text:
    Newmister, Respondent, v. Carmichael and others, Appellants.

      January 4

    February 1, 1966.

      For the appellants there was a brief by Vaudreuil & Vaudreuil of Kenosha, and oral argument by Leo E. Vaudreuil.

    For the respondent there was a brief by McEvoy & Hunger of Kenosha, and oral argument by John P. McEvoy.

   Currie, C. J.

Plaintiff tried this case on the theory that by mutual mistake 7*4 percent had been inserted in several places in the written agreement of May 31, 1961, instead of the 15 percent previously agreed upon by the parties. Inasmuch as the judgment of reformation is grounded upon the trial court’s finding that such mutual mistake had occurred, the crucial issue on this appeal is whether such finding is against the great weight and clear preponderance of the evidence, keeping in mind the applicable rule of burden of proof which rests upon the plaintiff in a reformation action.

Before recounting the material evidence we deem it advisable to state the following well-recognized rules of law here applicable. A mutual mistake by the parties to a contract is grounds for reforming it to conform to the true intention of the parties. However, this mutual mistake must be established by clear, convincing evidence that both parties intended to make a different instrument than the one signed and both agreed on facts different than those set forth in the instrument. Parol evidence is admissible to establish mutual mistake in a reformation action. Thus it is not a valid objection to interpose to the offer of such evidence that it tends to vary the terms of the written instrument sought to be reformed.

In the will contest counsel for the objector Mrs. New-mister were Attorneys David L. Phillips and Charles Richards of Kenosha, and Walter A. Yoder of Blooming-ton, Illinois. Carmichael and Mrs. Rigney were represented by former Circuit Judge Alfred L. Drury. While the bank was the original proponent of the will, Carmichael and Mrs. Rigney were accorded the status of proponents throughout the will contest. Attorney Leo E. Vaudreuil was present in court during the trial and testified for the proponents, and later after the will contest was concluded and the will admitted, his law firm of Vaudreuil and Vaudreuil were counsel for the executor bank pursuant to a request to such effect contained in the will. However, Mr. Vaudreuil did not participate as counsel during the will-contest trial.

On the afternoon of Thursday, April 27, 1961, after several days of trial, the objector rested and the proponents moved to dismiss the objections. This motion was denied, the trial judge stating that the evidence “raises a grave question with respect to the testamentary capacity of the testatrix.” Discussions of settlement then took place after adjournment of court that day between Phillips and Drury in the presence of Yoder and Richards, and an agreement was reached subject to approval of their respective clients.

Phillips’ testimony as to what took place in these negotiations on April 27, 1961, is as follows: He asked Drury whether the case could not be settled, and the latter replied, “. . . we are interested. What do you want?” Phillips then stated that Mrs. Newmister’s chances in the will contest were fifty-fifty, and, if successful, she would receive one third of the estate under the prior will. Since the chances were fifty-fifty, Mrs. Newmister would take half of a third or “16% percent” (actually 16% percent). Drury then said, “We can’t pay 16% percent. We will pay 15 percent, if it is satisfactory to my clients.” Drury withdrew to confer with Mrs. Rigney and later returned. He then stated some additional terms such as Mrs. Newmister withdrawing her objections to the will and a claim she had filed against the estate. Drury also stated that Mrs. Newmister would get the 15 percent but it would have to be on the net estate after payment of taxes, claims, and all administration expenses and attorney fees. Phillips agreed to all the conditions stated by Drury. The next morning a further conversation was had with Drury in the courtroom in which he imposed one further condition with respect to the settlement, which was to exclude a piece of real estate in Indiana. To this Phillips agreed.

Both Yoder and Richards by their testimony corroborated that of Phillips. Drury did not #sny Phillips’ testimony but stated, “What you don’t remember, you can’t deny.” However, he testified that he thought the written agreement of May 31, 1961, was in accord with what had been agreed upon in the preceding verbal negotiations, and he could not remember any discussion of a figure of 15 percent.

It is undisputed that on the evening of April 27, 1961, Drury consulted with his two clients at the Vaudreuil home and informed them of the settlement verbally negotiated between counsel that afternoon subject to their approval. There is, however, a dispute in the testimony as to whether the terms of the settlement which he then stated to his clients were in accord with the terms as stated in Phillips’ testimony. Vaudreuil was present and voiced opposition to the settlement. Carmichael and Mrs. Rigney approved the settlement as outlined by Drury subject to the further condition which he communicated to Phillips the next morning and was agreed to by Phillips.

Carmichael testified that he never had any information he had agreed to the 15 percent figure, and that he had never given authority to any lawyer to enter into a contract providing for payment of 15 percent of his share of the estate. Mrs. Rigney testified as follows: She attended the conference held at the Vaudreuil home on the evening of April 27, 1961. Drury there explained the proposal of settlement suggested at the prior conference of the attorneys. She had never agreed to “give” 15 percent. However, these questions were asked her and she gave these answers thereto:

“Q. . . . Now, did Mr. Drury then explain everything to you? A. Yes, he did.
“Q. And you agreed to what had been talked about there, is that right? A. Yes.”

Phillips drew up a rough draft of an agreement which he thought embodied the terms of settlement which had been agreed upon and submitted it to Drury and Vaud-reuil at the latter’s office sometime between May 2 and 7, 1961. Drury suggested some minor changes which Phillips agreed to. However, the main change there agreed to had to do with the Kenosha county farm so as to provide for the contingency of this farm not being sold within five years. Phillips then drew the agreement in the final form in which the parties later signed it. The material provisions thereof are as follows:

“1. That each of the parties of the first part [Carmichael and Mrs. Rigney] do hereby agree to pay to Goldie Newmister, the party of the second part, her heirs, executors, administrators or assigns, a sum of money equal to seven and one-half (7%%) percent of the net amount received by each of the parties of the first part as their respective distributive shares of the personal estate of Chrystal D. Paschen now being probated in the County Court for Kenosha County, Wisconsin. It is understood and agreed that the parties of the first part shall have the option of making said payment either in cash or in kind of the personal assets of the estate as distributed, or part cash or part in kind as aforesaid. . . .
“8. That in addition to the payment agreed to be made as set forth in paragraph designated 1, that each of the parties of the first part do hereby agree to pay to Goldie Newmister, the party of the second part, her heirs, executors, administrators or assigns, a sum of money equal to seven and one-half (7%%) percent of the net amount received by each of the parties of the first part from the sale of the one hundred sixty (160) acre farm located in the Township of Somers1, Kenosha County, Wisconsin, and which farm is more particularly described in the inventory on file in the estate of Chrystal D. Paschen. ... It is understood that if any of the buildings or improvements on said premises are destroyed or damaged during the five year period hereinafter mentioned, by fire or other casualty, any monies received from insurance proceeds and not used by the parties of the first part for rebuilding or repairs, within a reasonable time, shall be subject to payments of seven and one-half (7y%%) percent by each of the parties of the first part to the party of the second part. . . .
“4. That in the event the farm described in paragraph designated 3 is not sold within a period of five (5) years from the date of this agreement, that each of the parties of the first part shall pay to the party of the second part, her heirs, executors, administrators or assigns, the sum of Four Thousand Five Hundred (4,500.00) Dollars in cash. . . .
“7. That for the purpose of implementing this agreement, the parties of the first part do hereby assign to the party of the second part, her heirs, executors, administrators, or assigns, out of their respective legacies from said Chrystal D. Paschen estate, an amount sufficient to make the payment to the party of the second part, her heirs, executors, administrators or assigns, as set forth and defined in paragraph designated number 1 of this agreement and that the Kenosha National Bank, or its successors, as executors or administrators of the estate of Chrystal D. Paschen are hereby authorized to make the designated payment at the time when the same is due and payable, to accept receipts for the same, and to be relieved of any and all liability for the exercise of its function in this regard.”

Phillips sent the original and six copies to Mrs. New-mister for signature. After she signed them he turned them over to Vaudreuil and he mailed them to Carmichael and Mrs. Rigney, who resided in Indiana and Arizona, respectively. They signed and returned them. The May 31st date is in Vaudreuil’s writing, and apparently he inserted this date after the parties had affixed their signatures.

In February and March, 1963, the executor bank, upon directions of Vaudreuil acting as counsel for the executor, made certain transfers of corporate stocks constituting assets of the Paschen estate. There were three of these transfers but, as all were handled alike, we deem it sufficient to describe only that of the 2,400 shares of American Telephone & Telegraph Company stock. The bank sent the certificates for these shares into the company and had new certificates issued as follows:

“One certificate of 1,020 shares to Oden B. Carmichael
“One certificate of 180 shares to Oden B. Carmichael
“One certificate of 1,020 shares to Bessie E. Rigney
“One certificate of 180 shares to Bessie E. Rigney”

The certificates were issued thusly so that stock powers could be mailed to Carmichael and Mrs. Rigney and signed by them covering the two 180-share certificates in order to effectuate their assignment to Mrs. Newmister. The significant fact to be noted is that the 360 shares Mrs. Newmister was thus to receive are 15 percent, not 7% percent, of the original 2,400 shares.

On March 15, 1963, Phillips drew up a memorandum addressed to Vaudreuil in which he outlined how Mrs. Newmister was to receive 15 percent of certain estate securities and of the cash balance in the estate. The commencing words of this memorandum were, “As we interpret the agreement of May 31, 1961, . . .” Phillips then handed Vaudreuil this memorandum at the bank in a conference also attended by the assistant trust officer in charge of the estate. Vaudreuil accepted the memorandum and said nothing to indicate that he disagreed with it.

Sometime in May, 1963, Phillips called Vaudreuil on the telephone and inquired as to when “we were going to close this thing out and transfer the stock and cash.” Phillips’ testimony as to what then transpired is as follows:

“He [Vaudreuil] said what do you think your client is entitled to, and I said she is entitled to 15%, including the farm in Kenosha that was sold and Leo said to me, how do you figure? And I said, Leo, why it is in the agreement. She is to get 7*4% from Bessie and iy%% from Oden, and 7% and 7% makes 15% and Leo said where does it say that and I said in the Agreement. Leo said, I thought so too until I figured it out on paper and I said what do you mean? It says 15%. Leo said, I thought so too until I figured it out on paper and then he started to explain. Then I said to Leo, meet me at the bank and that I didn’t understand this at all and he said sure. So a few minutes later we met at the bank. I said, Leo, I just don’t understand this at all. 7% and 7% makes 15. Then Mr. Vaudreuil said, let me show you something. He got out a scrap of paper and put down some figures and that was the first I realized that 7% and 7% didn’t always make 15.”

Even though in a reformation action the burden is upon the plaintiff to prove mutual mistake by clear and convincing evidence, we have no difficulty in concluding that the trial court’s finding that such mutual mistake did occur is not against the great weight and clear preponderance of the testimony. In those instances in which conflict occurred in the testimony it was the province of the trial court to determine credibility.

We start with the premise that Phillips’ testimony was true, because the trial court so determined. This determination is clearly evidenced by the following statement in the trial court’s memorandum decision:

“It is extremely hard for any person, and that specifically includes lawyers or judges, to openly admit a glaring error which can be viewed by clients and the public. However, David L. Phillips, attorney openly and under oath testified he made a mathematical error when he placed seven and one-half percent in the contract for each and believed that seven and one-half percent and seven and one-half percent would make fifteen percent which he later found not to be true, all to his shock and chagrin.
“I must admit that I was impressed by this testimony and concluded that he was a lawyer of character and integrity. ...”

Phillips’ testimony clearly establishes that the verbal settlement agreement reached between him and Drury provided for Mrs. Newmister’s receiving 15 percent of the net personal estate of the deceased and of the proceeds of the sale of the Kenosha county farm if it were sold within the five-year period. In negotiating this settlement Drury made it clear that he was doing so subject to the approval of his clients, Carmichael and Mrs. Rigney. Crucial to a finding of mutual mistake on the part of the latter is the existence of clear and convincing evidence that they were advised by Drury of the 15 percent negotiated settlement. There are several pieces of evidence which tend to establish that Carmichael and Mrs. Rigney were advised by Drury of the terms of the 15 percent settlement negotiated between the attorneys, before they gave their verbal approval thereto.

There is Drury’s testimony that he did advise Carmichael and Mrs. Rigney of the terms of the negotiated settlement. While it is true that he did not testify that he mentioned the figure of 15 percent, there is circumstantial proof that he must have done so. This consists of Vaudreuil’s later acts of interpretation, and in the provisions contained in the May 31, 1961, agreement with respect to the Kenosha county farm.

Vaudreuil was present on the evening of April 27, 1961, when Drury outlined the terms of the negotiated settlement to Carmichael and Mrs. Rigney. Vaudreuil’s later actions as attorney for the executor establish that he understood Mrs. Newmister was to receive 15 percent of the net personal estate. This conduct consisted of (1) the directions he gave to the executor bank in transferring securities, and (2) his silent acquiescence in the memorandum showing how the estate was to be distributed, handed to him by Phillips on or about March 15, 1963. Appellants contend this evidence was improperly received because Vaudreuil did not act as counsel for appellants at the time the settlement was negotiated, and, therefore, his acts cannot bind appellants. We deem this evidence was properly admitted as evidencing the interpretation which a person present at the conference between Drury, Carmichael, and Mrs. Rigney placed upon what was there said and decided. Vaudreuil would have been a competent witness to have testified to what there transpired. For the same reason we determine his acts of interpretation were admissible as having probative value. We cannot conceive of him so acting if a figure for settlement of less than 15 percent had been discussed and agreed upon at the April 27, 1961, conference.

We turn now to the provisions in the May 81, 1961, agreement with respect to the Kenosha county farm. Under these provisions, if the farm were not sold within five years, the appellants Carmichael and Mrs. Rigney were to each pay Mrs. Newmister $4,500, or $9,000 in all. Phillips testified that in the settlement negotiations with respect to this he expressed the view that the $75,000 appraised value of this farm was high, that the true value was $60,000, and that the $9,000 was arrived at on the basis of 15 percent of $60,000. Furthermore, it was provided that if any of the farm buildings or improvements should be destroyed by fire, or other casualty, during the five-year period, each appellant was to pay to Mrs. Newmister 7% percent of any insurance proceeds not utilized for replacement. As so worded Mrs. Newmister would have received a total of 15 percent of such unused insurance proceeds. These provisions are wholly inconsistent with appellants’ position.

It is immaterial that some of this evidence which is relied upon to establish that appellants knew of the 15 percent negotiated settlement and had agreed thereto at the April 27, 1961, conference, is circumstantial. In Kadow v. Aluminum Specialty Co. this court stated:

“It is argued that testimony of parties, equally credible, does not support reformation. Sable v. Maloney (1880), 48 Wis. 331, 4 N. W. 479. This does not prevent reformation being established by evidence of circumstances and the nature of the transaction and the conduct of the parties in relation thereto, provided the natural and reasonable inferences to be drawn therefrom clearly and decidedly prove the alleged mistake. Sable v. Maloney, supra; Geib v. Reynolds (1886), 35 Minn. 331, 28 N. W. 923; Layman v. Minneapolis Realty Co. (1895), 60 Minn. 136, 62 N. W. 113; 53 C. J., Reformation of Instruments, p. 1037, sec. 202.”

By the Court. — Judgment affirmed.

        Clark v. Moru (1963), 19 Wis. (2d) 503, 506, 120 N. W. (2d) 888; Findorff v. Findorff (1958), 3 Wis. (2d) 215, 224, 88 N. W. (2d) 327; Langer v. Stegerwald Lumber Co. (1952), 262 Wis. 383, 391a, 55 N. W. (2d) 389, 56 N. W. (2d) 512.

        Holton State Bank v. Greater Milwaukee Food Merchants Asso. (1960), 9 Wis. (2d) 95, 99, 100 N. W. (2d) 322, 79 A. L. R. (2d) 1176; La Rosa v. Hess (1951), 258 Wis. 557, 559, 560, 46 N. W. (2d) 737; Kadow v. Aluminum Specialty Co. (1948), 253 Wis. 76, 78, 33 N. W. (2d) 236.

        Badger Savings Building & Loan Asso. v. Mutual Building & Savings Asso. (1939), 230 Wis. 145, 152, 283 N. W. 466; Reed v. Harvey (1961), 253 Iowa 10, 22, 110 N. W. (2d) 442; Smith v. Bear (2d Cir. 1956), 237 Fed. (2d) 79, 86, 60 A. L. R. (2d) 1119; Restatement, 1 Contracts, p. 333, sec. 238 (c); 3 Corbin, Contracts, p. 431, sec. 580.

       For the reasons why evidence of conduct such as this should be admissible, see Falknor, The “Hear-Say Rule” as a “See-Do Rule,” 33 Rocky Mountain Law Review (1961), 133.

       (1948), 253 Wis. 76, 78, 33 N. W. (2d) 236.


author: Hallows, J.

text:
    King, Respondent, v. King, Appellant.

      January 4

    February 1, 1966.

      For the appellant there was a brief and oral argument by John William. Calhoun of Fond du Lac.
    For the respondent there was a brief by Frinzi, Catania & Neubeeker of Milwaukee, and oral argument by Dominie H. Frinzi.

   Hallows, J.

The material facts underlying this appeal are undisputed. In July, 1964, after the. custody of the children was affirmed in the defendant by the trial court and while that order was on appeal, the defendant resigned his $45,000-a-year job with Kiekhaefer Corporation and went into business in Fond du Lac, Wisconsin, with another executive of that corporation. This business failed within a few months. While unemployed, the defendant in December of 1964 married a widow who lived with her three children in California. In February, 1965, the defendant met with the plaintiff in an attempt to induce her to agree to allow him to take the children to California and to enter into a stipulation to that effect. The plaintiff, instead of agreeing to sign a stipulation as she did for the original custody disposition, countered with a petition to the circuit court for the transfer of the custody of the children to her because of the changed circumstances. The defendant replied with a petition requesting permission to remove the children from the state and to modify the plaintiff’s visitation rights.

The defendant argues there are not sufficient changes of circumstances to justify a change of custody and consequently the court was in error and abused its discretion in changing the custody from the defendant to the plaintiff. In its opinion the trial court found the defendant had developed symptoms of insecurity and instability; that he resigned a lucrative position; that he had difficulty keeping housekeepers to care for the children; that he was absent from his home frequently while in New York, California, and Hawaii and that he had been lax in keeping up the religious training of the children. There was some testimony the children were not well adjusted to their existing mode of life. At the time of the hearing the defendant had an offer of an executive position in California and contemplated living in his wife’s home with her and her three children. He also was attempting to secure a better executive position than that offered in California.

In respect to the plaintiff the trial court found she had an ardent mother’s love for her children; that she had established a suitable home in close proximity to school, church and playgrounds; that the children showed an unusual affection for her and that she had now shown a stable and settled outlook on life. The unsettled circumstances of emotional immaturity and extravagance, which disturbed the trial court at the first hearing, it now found to be in the past and no longer an adverse factor in determining the custody problem. In our first opinion we stated in reference to the conclusions which the trial court drew concerning the plaintiff, that there was not very strong evidence to sustain them but at least they were not unreasonable inferences and “In a close case such as this an appellate court ought not reverse the findings of a trial court unless it is completely satisfied the trial court has clearly abused its discretion and decided the matter against the great weight and clear preponderance of the evidence.” King v. King, supra, page 557. That rule of law is still applicable to this case.

We have often and vigorously said the best interest of the children of a divorce is the controlling consideration and the goal to be attained in the determination of their custody and we have admitted, as we must, there is no hard-and-fast rule or formula which as yet has been defined for determining what combination of factors will ultimately assure the future welfare of a child who is the product of a broken home. Remarriage, as well as removal from the state, especially where the removal requires a change in the mother’s visitation rights, has been held to be a sufficient change in circumstances for the court to reconsider the question of custody under our doctrine of changed circumstances. Such change in circumstances does not necessarily require a change in custody. Generally, no one factor is determinative of where custody should lie; nor does the same combination of factors necessarily call for an identical answer. From experience, the various facts and circumstances as they then exist in their relationship to the child must be evaluated to determine in whose custody the best interest of the child lies.

In spite of the strong policy favoring custody in the natural mother when she is fit, the court on the first hearing decided that what he called the emotional instability and extravagance of the plaintiff was such it would be in the best interest of the children for them to remain with their father. On the present record, we can find no meritorious argument or reason why the natural mother should not now have the custody of her children, whom she wants and who want her. The conditions contemplated and upon which the custody was given to the father no longer exist and they did not produce a satisfactory solution of the custody problem. The children can no longer reside in their accustomed home, attend the same school or live in the same neighborhood, or indeed in Fond du Lac. The present question is really one of reappraising the problem in the light of the circumstances as they now exist and making a choice for the children of a life with their mother, who can give them an adequate home, her love and her training within the jurisdiction of the court, or a life with their father and a stepmother and her three children outside the jurisdiction of the court.

It is argued the home of the father would be more complete and natural, but we do not find in the record such facts as would convince us any more than it did the trial court that the home of the father would be superior in its influence in the development of the children to the homelife with their mother who is fit and capable of rearing them. If remarriage is to be the determining factor, then custody would depend upon which divorced parent wins the race to the altar. But one should not be penalized for remarrying. Remarriage is a factor to be counted for or against custody, depending upon its bearing and effect upon the interests of the child.

About two months after the trial court made its decision the defendant on June 24, 1965, petitioned the court for a rehearing on the basis he then had a position in Dallas, Texas, and was there living with his wife and her children in a new home in a comfortable residential area. An affidavit of the second Mrs. King was filed which stated she would treat her husband’s children as if they were her own and she was a good mother. This petition is hardly one for rehearing since it is based on changed circumstances; however, it makes very little difference because the trial court denied it on its merits. The only new factor of importance raised by the petition was the defendant, in fact, had a position which the court stated it had every expectation the defendant would secure in order to support his children. It true the trial court in transferring the custody stated the defendant was without a job. However, the court did not consider this factor decisive and was more concerned with the defendant’s judgment in giving up the security of a $45,000-a-year job. It is likewise true the trial court stated there was no testimony from the second Mrs. King concerning her position on the custody issue; no doubt, this called forth the affidavit. But, assuming the verity of the affidavit, it is still not sufficient even when added to the other circumstances to deprive the children of the care of their natural mother.

In articulating this opinion we have summarized or picked out only salient facts. A reading of the testimony, both on the original appeal and on this appeal, convinces us the trial court committed no error and did not abuse its discretion in granting the plaintiff the custody of her children.

By the Court. — Orders affirmed.

        Wendland v. Wendland, ante, p. 145, 138 N. W. (2d) 185; King v. King (1964), 25 Wis. (2d) 550, 131 N. W. (2d) 357; Welker v. Welker (1964), 24 Wis. (2d) 570, 129 N. W. (2d) 134; Greenlee v. Greenlee (1964), 23 Wis. (2d) 669, 675, 127 N. W. (2d) 737; Bliffert v. Bliffert (1961), 14 Wis. (2d) 316, 111 N. W. (2d) 188.

         Brown v. Brown (1960), 9 Wis. (2d) 322, 101 N. W. (2d) 48; Greenlee v. Greenlee, supra.

       17A Am. Jur., Divorce and Separation, pp. 24-26, sec. 833.

        Bliffert v. Bliffert (1961), 14 Wis. (2d) 316, 111 N. W. (2d) 188; Greenlee v. Greenlee (1964), 23 Wis. (2d) 669, 675, 127 N. W. (2d) 737.

        King v. King, supra; Welker v. Welker (1964), 24 Wis. (2d) 570, 129 N. W. (2d) 134; Peterson v. Peterson (1961), 13 Wis. (2d) 26, 108 N. W. (2d) 126; Acheson v. Aeheson (1940), 235 Wis. 610, 294 N. W. 6; Jenkins v. Jenkins (1921), 173 Wis. 592, 181 N. W. 826.


text:
    Lyf-Alum, Inc., Appellant, v. C & M Aluminum Supply Corporation and another, Respondents. Rauen, Appellant, v. Same, Respondents.

      January 4

    February 1, 1966.

      For the appellants there were briefs by Laikin, Swietlik & Peltin, attorneys, and Morris Karon, of counsel, all of Milwaukee, and oral argument by Mr. Karon.

    For the respondents there was a brief by Michael, Best & Friedrich, attorneys, and John K. Maclver and Marshall R. Berkoff of counsel, all of Milwaukee, and oral argument by Mr. Berkoff.

   Hallows, J.

The question on appeal is whether the immunity from service of civil process which is generally extended to nonresident witnesses and litigants in attendance upon a court within this state should be withheld from a nonresident plaintiff in suits which are alleged to be related to the original action. The plaintiffs contend it is the modern rule that a nonresident plaintiff is not immune from service of process where he has commenced litigation if the service is made in a cause related to the subject matter of the litigation commenced by him and the service of the process is on behalf of a party to such litigation. Under this argument, we are asked to treat Módica, who was served individually as well as officer of C & M, as being a nonresident plaintiff in the same classification as C & M.

We must start with the proposition that the general rule of immunity applies to witnesses and suitors and only by a minority rule is an exception made for nonresident plaintiffs in circumstances where the reason for the general rule does not apply. Wisconsin has dealt with the broad problem in two cases. In Rix v. Sprague Canning Machinery Co. (1914), 157 Wis. 572, 147 N. W. 1001, the Sprague Company, a foreign corporation, as plaintiff brought suit in Wisconsin against Hartford Canning Company and one of its officers while in Wisconsin as a witness in the action was served by Rix. In holding the service void, the court said, “A witness or a party from another state necessarily present and in attendance upon a court within this state and present for such purpose only, is privileged from the service of a summons while so necessarily within the state.” The court did not discuss whether there was an exception to the rule where the second suit was related to or arose out of the original action. But the court did state the reason for the rule is primarily for the protection of the administration of justice so that litigants and witnesses could freely attend court without penalty of thereby incurring any liability which would otherwise not be incurred. We think this freedom from penalty must be looked upon as a freedom to choose one’s forum as well as the freedom to prosecute an action once commenced.

In Harvey v. Harvey (1929), 199 Wis. 212, 225 N. W. 703, a case involving a nonresident witness, the court granted immunity from the service of process and clarified the Rix Case to the extent that the witness or party did not have to be in the state under compulsion or of necessity, but his presence here could be voluntary. This clarification was upon the ground that nonresident witnesses should be encouraged to come into the state voluntarily to aid a trial of a pending case.

The general rule is one of long standing and existed in fact at common law. The statement of the rule and of the reason for its existence in the Wisconsin cases is not materially different from its statement in other jurisdictions. The beneficial cloak of the immunity rule covers the nonresident plaintiff with its protection as well as the nonresident defendant or witness. As stated in 42 Am. Jur., Process, p. 125, sec. 144, “As generally stated, the rule that suitors and witnesses from a foreign jurisdiction are exempt from service on [sic] civil process while attending court and for such reasonable time before and after as may enable them to come from and return to their homes is broad enough to include the parties plaintiff as well as the defendants and witnesses, and the prevailing view is that where the privilege may be claimed by a party, a plaintiff as well as a defendant is immune from service. Ordinarily, the privilege of immunity of a nonresident suitor from service of process in another action is applied indiscriminately between plaintiffs and defendants, and there appears to be no sound distinction for placing a party plaintiff on any different basis in this respect; it is as important to the administration of justice that foreign plaintiffs should be protected in making a full presentation of their cases as it is that parties defendant should be given this protection.” See also 72 C. J. S., Process, p. 1115, sec. 80 (a) (3); Anno. Immunity from service of process as affected by relationship between subject matters of litigation in which process was issued, and litigation which nonresident served was attending, 84 A. L. R. (2d) 421, 425.

It is true some jurisdictions deny immunity to a nonresident plaintiff where the subject matter of the second suit is closely related or grows out of the subject matter of the first suit so as to justify the denial of immunity. The plaintiff relies on L. P. Evans Motors, Inc., v. Meyer (Fla. App. 1960), 119 So. (2d) 301; St. John v. Superior Court (1960), 178 Cal. App. (2d) 794, 3 Cal. Rptr. 535, 84 A. L. R. (2d) 415; and Von Kesler v. Superior Court (1930), 109 Cal. App. 89, 292 Pac. 544, which are decisions of intermediate appellate courts, and Rizo v. Burruel (1921), 23 Ariz. 137, 202 Pac. 234, 19 A. L. R. 823, and Iron Dyke Copper Mining Co. v. Iron Dyke R. Co. (C. C. Or. 1904), 132 Fed. 208, which expressly do not decide the question. In the two cases which support the exception, Stewart v. McCauley (1965), 178 Neb. 412, 183 N. W. (2d) 921, and Walker v. Calada Materials Co. (10th Cir. 1962), 309 Fed. (2d) 74, the original suit involved the same subject matter as the subsequent suit. Also relied on by the plaintiffs is Eberlin v. Pennsylvania R. Co. (1961), 402 Pa. 520, 167 Atl. (2d) 155, in which the subsequent suit aided the original suit. It was pointed out in United Nations v. Adler (D. C. N. Y. 1950), 90 Fed. Supp. 440, which was a case involving service on the nonresident defendant in the original suit, that the cases withholding immunity to nonresident plaintiffs were to be explained on one of three grounds: (1) That the plaintiff need no inducement to appear in the action he has commenced, (2) in the interest of trial convenience, and (3) because full justice could not be done in the first action and would be denied to the resident defendants thereof should they seek to assert their right against a nonresident plaintiff in the courts of the latter’s residence.

We think the only proper basis for an exception to the general rule would be a fact situation in which the reason for the rule ceased to exist. In Stewart v. Ramsay (1916), 242 U. S. 128, 37 Sup. Ct. 44, 61 L. Ed. 192, the court in applying the general rule of immunity to a nonresident plaintiff being served with a summons in an unrelated suit while testifying as a witness stated the privilege was one of the court and was founded on necessities of judicial administration which would often be embarrassed and sometimes interrupted if the suitor might be vexed with process while attending upon the court, and thus the nonresident plaintiff would be deterred from rightfully asserting its claim. Again in Page v. Macdonald (1923), 261 U. S. 446, 43 Sup. Ct. 416, 67 L. Ed. 737, the supreme court sustained the granting of immunity to a nonresident plaintiff. See also Marlowe v. Baird (6th Cir. 1962), 301 Fed. (2d) 169; Kendrick v. Thompson (D. C. Cir. 1964), 205 Atl. (2d) 606; Shapiro & Son Curtain Corp. v. Glass (2d Cir. 1965), 348 Fed. (2d) 460.

In Lamb v. Schmitt (1932), 285 U. S. 222, 52 Sup. Ct. 317, 76 L. Ed. 720, the supreme court made an exception in the case of a nonresident attorney. In that case the attorney was in the jurisdiction representing a defendant in a case to set aside an alleged fraudulent conveyance of land and disposition of personal property. Part of the money sought to be recovered had been paid by the defendant to the attorney for fees; the second suit was to recover this money. The supreme court took the view the second suit was brought in aid of the original suit since it was brought to secure the rights asserted in that suit. The court phrased the test of immunity from service as follows (p. 228) : “ [W] hether the immunity itself, if allowed, would so obstruct judicial administration in the very cause for the protection of which it is invoked as to justify withholding it. That, as we have said, depends here upon the nature of the proceeding in which the service is made and its relation to the principal suit, both of which are disclosed by the pleadings.”

The precise question here is whether allowance of the commencement of the suits by Rauen and Lyf-Alum by service on Módica would impede the administration of justice of the original suit in the federal court. It makes no difference whether the original suit is in the federal court or the state court. The effect of denying immunity would be the same, either that nonresidents would not seek a forum in Wisconsin or the prosecution of the suit would be hindered or unduly penalized by the commencement of the second action.

While in a sense the subject matter of the suits are related, they are not identical. The federal suit is for damages for breach of the Robinson-Patman Act. The second suits are based on actions and activities of the nonresident plaintiff and Módica occurring and unassociated with the acts of the defendant alleged in the first suit. The very nature of these suits is to impede and threaten the continuance of the first suit. They do not under any view involve the same facts or subject matter. Under the only logical basis for an exception to the general rule, namely, that the original suit will be aided or at least not harmed, we cannot find that the suits commenced by Rauen and Lyf-Alum come within such exception. We admit some courts have made a broader exception to the rule, but we are not inclined to so do. See Poss v. District Court in and for El Paso County (Colo. 1965), 408 Pac. (2d) 69.

It was pointed out in United Nations v. Adler, supra, that the reason for the general rule is not to favor or convenience the second suit, because if that were the reason there would be no immunity in any case. The doctrine is not concerned with the second suit or its justification, or with the convenience of the plaintiff therein, but is only concerned with the effect on the original suit of the granting of immunity. The granting of immunity need not affirmatively and in fact aid the original suit but should not obstruct it. An action charging among other things an abuse of process for maintaining the original suit would not seem to be a type of action within the exception. Only in a very limited area, where the purpose of the second suit advances the purpose of the first suit, should immunity be denied.

The last argument of Lyf-Alum advances the propositions that Wisconsin Stats., ch. 262, and traditional notions of fair play and substantial justice under the Fourteenth amendment do not require that the service be set aside, and in fact justify such service. The minimum-contact theory of ch. 262 as a basis for jurisdiction of service is not applicable here. Neither Módica nor C & M has any contacts with Wisconsin other than the present pending federal suit. Equities in favor of the defendant are not a basis for jurisdiction of the court to sustain the service of process and the doctrine of “traditional notions of fair play and substantial justice” is a limitation upon asserted jurisdiction, not a basis for the court’s jurisdiction. Both of these arguments seek the destruction of the rule of immunity from service, which we believe should exist. We hold the trial court did not err in quashing service and recognizing the doctrine of immunity on the facts of this case.

By the Court. — Order affirmed.

       See for example: Durst v. Tautges, Wilder & McDonald (7th Cir. 1930), 44 Fed. (2d) 507, 71 A. L. R. 1394; In re Equitable Plan Co. (2d Cir. 1960), 277 Fed. (2d) 319; Stewart v. Ramsay (1916), 242 U. S. 128, 37 Sup. Ct. 44, 61 L. Ed. 192; Page Co. v. Macdonald (1923), 261 U. S. 446, 43 Sup. Ct. 416, 67 L. Ed. 737; Lamb v. Schmitt (1932), 285 U. S. 222, 52 Sup. Ct. 317, 76 L. Ed. 720.


author: Gordon, J.

text:
    Foote and another, Plaintiffs and Respondents, v. Douglas County, Defendant: Western Casualty & Surety Company, Defendant and Appellant.

      January 4

    February 1, 1966.

      For the appellant there was a brief by Morrow & Garvey of Eau Claire, and oral argument by Frank L. Morrow.

    For the respondents there was a brief by Borg, McGill & Moodie of Superior, and oral argument by Douglas S. Moodie.

   Gordon, J.

Two issues were decided adversely to the appellant by the jury. Upon this appeal, the insurer seeks to upset one or both of such answers.

Permission to- Drive.

In its answer to the first question of the verdict, the jury found that there was implied permission for Carol Foote to operate the Rydberg car. The insurer urges that this answer cannot stand in view of the signed statements given to the representative of the insurer by Mrs. Rydberg and by Marla Rydberg.

In each statement there is a declaration that Mrs. Rydberg had given her daughter specific instructions not to permit anyone else to drive the car. Both the mother and the daughter subsequently disavowed their signed statements. They testified at the trial that the original statements were erroneous and explained the reason therefor.

The position of Mrs. Rydberg and her daughter is that the original statements were erroneously prepared because of the circumstances under which they were taken. Under oath they categorically denied that there was in fact a prohibition on Marla's letting other persons drive. Indeed, Mrs. Rydberg testified that she had observed others driving the car “a dozen or more times.”

The Rydbergs also explained that the car was registered in the mother’s name but that the real owner was Marla and that it was purchased for Marla’s use. There is applicable the language of the court in Krebsbach v. Miller (1963), 22 Wis. (2d) 171, 177, 125 N. W. (2d) 408, 4 A. L. R. (3d) 1:

“Also, where for all practical purposes the first per-mittee is the real owner of the car but title has been taken, in the name of the named insured for reasons of convenience, the general control and custody of the first permittee is such that, when he grants permission to a third person to operate the insured vehicle, such operation is held to be with the implied permission of the named insured.”

See also Schimke v. Mutual Automobile Ins. Co. (1954), 266 Wis. 517, 64 N. W. (2d) 195.

We believe that this was an issue of fact for the jury and that there is credible evidence to support its finding. Schneck v. Mutual Service Casualty Ins. Co. (1964), 23 Wis. (2d) 649, 653, 128 N. W. (2d) 50.

The jury’s finding of implied permission in Carol Foote to drive satisfies the policy’s provision concerning permissive use under sec. 204.30 (3), Stats. Foryan v. Firemen’s Fund Ins. Co. (1965), 27 Wis. (2d) 133, 141, 133 N. W. (2d) 724; Pavelski v. Roginski (1957), 1 Wis. (2d) 345, 84 N. W. (2d) 84; Note, The Case for a Liberal Initial Permission Rule Under the Omnibus Coverage Statute, 1966 Wisconsin Law Review, 191; Anno. 4 A. L. R. (3d) 10.

Failure to Cooperate.

By its answer to the second question, the jury determined that the Rydbergs did not fail to cooperate with the appellant “in the investigation and handling of this case.” The insurer points to the Rydbergs’ complete flip-flop on the issue of permission to drive and urges that this constituted noncooperation under Hunt v. Dollar (1937), 224 Wis. 48, 55, 271 N. W. 405. However, in Schneck v. Mutual Service Casualty Ins. Co. (1963), 18 Wis. (2d) 566, 576, 119 N. W. (2d) 342, this court ruled that for a contradiction on the part of the insured to constitute lack of cooperation the carrier is obliged to show that it was harmed thereby.

In the case at bar, the insurer offered no proof to show how it was harmed by the Rydbergs’ change in their stories. We must acknowledge that this was no mere gentle deflection on the part of the Rydbergs; it was a head-over-heels somersault.

The insurer insists that the totality of the reversal of position on the part of Mrs. Rydberg and Marla Rydberg must necessarily have been detrimental to the carrier. The writer of this opinion, when a circuit judge, was impressed with this type of argument in a related type of case; as reflected in Stippich v. Morrison (1961), 12 Wis. (2d) 331, 107 N. W. (2d) 125, that fell considerably short of being a brilliant impression. But cf. Heimlich v. Kees Appliance Co. (1950), 256 Wis. 356, 41 N. W. (2d) 359.

The rationale which resulted in a reversal of Stippich v. Morrison and which governs the case at bar is to be found in Kurz v. Collins (1959), 6 Wis. (2d) 538, 549, 95 N. W. (2d) 365, where it was stated that

“. . . where the rights of an injured third party have intervened subsequent to the issuance of the contract of insurance, the insurer should not be freed from liability to such third party, on the ground of non-cooperation of the insured in having made a false statement, unless the insurer has been harmed thereby.”

Thus, even though there is a possibility of prejudice to the insurer, it will not be sufficient to require a finding of noncooperation as a matter of law when the rights of an injured third party have arisen; actual prejudice must be shown by the insurance company.

Western Casualty learned of the altered stand of its insured approximately four months before the trial. The trial judge determined that this occurred when Mrs. Rydberg was adversely examined by counsel for the insurer in May, 1964. Although the adverse examination was not introduced into evidence, there is adequate support in the record for the trial judge’s declaration on this point. Accordingly, it appears that the insurer knew well in advance of the trial the extent of its insured’s deviation. Under such circumstances, the trial court was justified in accepting the jury’s determination that there was no failure to cooperate. The existence of prejudice to the carrier was not established.

By the Court. — Judgment affirmed.


author: Wilkie, J. Per Curiam

text:
    Peppas, Executrix, Plaintiff and Respondent, v. City of Milwaukee, Defendant and Respondent: Gardner M-E-L Company and another, Defendants and Appellants.

      January 4

    February 1, 1966.

      For the appellants there were briefs by Whyte, Hirsch-boeck, Minahan, Harding & Harland and Reginald W. Nelson, all of Milwaukee, for the Gardner M-E-L Company, and Arthur T. Spence of Milwaukee, for Har-Van, Inc., and oral argument by Mr. Nelson and Mr. Spenee.

    For the plaintiff-respondent there was a brief by Kersten & McKinnon, attorneys, and E. Campion Kersten of counsel, all of Milwaukee, and oral argument by E. Campion Kersten.

    For the defendant-respondent there was a brief by John J. Fleming, city attorney, and George A. Bowman, Jr., assistant city attorney, and oral argument by Mr. Bowman.

       Motion for rehearing denied, without costs, on April 12, 1966.

   Wilkie, J.

Two issues are presented on this appeal:

First, is the driveway a place of employment within the meaning of the safe-place statute?

Second, are the owner and the lessee of property abutting a driveway which lies within the boundary of the dedicated public street liable in nuisance for a defect existing in that driveway ?

A preliminary question is raised by respondent Peppas, who, relying on Wells v. Dairyland Mut. Ins. Co., challenges the right of either appellant to relief on this appeal since, as respondent contends, neither moved for a new trial below. However, Gardner, in its motions after verdict, raised the necessary questions of law involved in the resolution of these two issues as to Gardner and specifically included an alternative request for a new trial. Har-Van similarly raised these same questions of law as applied to it, but did not include a request for a new trial. The purpose of the rule of Wells is to provide an opportunity to the trial court to correct errors before any party has a right to raise the same errors on appeal. This purpose is fully satisfied in the instant case since both appellants raise the same legal questions on appeal that were raised in the trial court by their motions after verdict. Since, as will be developed later in this opinion, the case is disposed of entirely on questions of law that were raised below, and persisted in here, there is no need to consider whether or not the appellants have preserved their right to ask for a new trial.

Place of Employment.

The trial court considered that, as a matter of law, the driveway was a place of employment within the meaning of sec. 101.01 (1), Stats., the safe-place statute. Both appellants attack this determination.

On this issue the case at bar is controlled by Hansen v. Schmidman Properties a case with facts remarkably similar to those in the present action. In Hansen an alley led from the street to a parking lot behind defendants’ tavern. The lot was utilized by defendants’ patrons. The plaintiff slipped on ice on the sloped portion of the alley lying between the sidewalk and the street. The fall occurred on land which had been dedicated to the public for street purposes. The court referred to the earlier case of Miller v. Welworth Theatres in which the plaintiff fell after catching her heel in a crack in the public sidewalk in front of defendant’s ticket window. In Miller, in rejecting the claim that the defendant was liable for a safe-place violation, this court said:

“The public sidewalk described cannot be translated into an employer’s place of employment, because the responsibility of maintaining the sidewalk is not that of defendant; the care and maintenance clearly rests upon the municipality. Sec. 62.17, Stats. It must be recognized that in a state where there is no obligation on the abutting landowner to keep the sidewalk in front of his premises in repair or in a safe condition for public travel, in the absence of a statute or ordinance imposing such duty upon him a defect in the sidewalk not caused by him cannot be charged against him.”

In Hansen this court said that the above-quoted language from Miller “applies here even more clearly when the alleged defect is in the part of the street constructed for use by vehicles and not by pedestrians,” and held that the driveway apron was not a place of employment. Miller and Hansen were both cited with approval in Corpron v. Safer Foods, Inc. where the plaintiffs slipped on an icy sidewalk abutting defendants’ store.

Respondent Peppas seeks to distinguish Hansen and Corpron (but not Miller) on two grounds. First, that these cases are inapplicable because the dangerous condition there involved was temporary in nature — i.e., ice— while the flaw here was permanent. This analysis, which ignores the fact that the sidewalk crack in Miller was permanent, goes to the nuisance issue. Whether or not a particular location constitutes a place of employment does not depend on the type of defect present but rather turns on the use made of the area. Second, that Hansen differs in that the use of the driveway was merely incidental to the tavern business while the apron in the instant case was an integral part of Gardner’s business. However, not only is the limited importance of the driveway in the present case demonstrated by the fact that it was used only 25 percent of the time, but it was hardly crucial to the conduct of business since cars could be, and were, moved by means of the alley to the west of the lot. On the other hand, the lot in Hansen was intended for the exclusive use of the customers.

Respondent Peppas also maintains that this case is governed by Schwenn v. Loraine Hotel Co. In Schwenn the plaintiff tripped on rutted snow and ice which had accumulated in a semicircular driveway lying in front of a hotel. The driveway, although located on city property, was not used for general public vehicular or pedestrian traffic, but rather was employed almost exclusively for the purpose of loading and unloading guests and luggage from taxis and private automobiles. The city did not post signs in, plow, or police the area. The hotel had a doorman present to assist guests in and out of vehicles using the driveway, and also to keep unauthorized vehicles away. A particular taxi company had two stands on the drive, and for thirty years had instructed drivers to keep the stands occupied. In the hotel lobby there was a direct telephone to the cab office. The hotel maintained two “no parking” and one “no parking, taxi stand” signs on the drive and shared snow removal operations with the cab company. It was held that under the circumstances, the driveway amounted to a place of employment for both the hotel and the taxi company.

In Hansen the court recognized that the facts in Schwenn were “peculiar” and distinguished the case largely on the ground that the element of “complete and exclusive dominion over the area” was lacking. Coraron also differentiated Schwenn on this basis and for the additional reason that there were no employees regularly on duty on the sidewalk. The present case likewise differs from Schwenn in several key respects. First, as was the situation in Hansen and Corpron, neither appellant exercised exclusive control over the driveway. There were no signs prohibiting use of the apron and anyone had a right to use it. Motorists often turned around in it and Peppas had in fact driven his car over the ramp into the lot shortly before he fell. Second, Gardner’s employees were not stationed as such on the apron, a factor relied on in Corpron. Third, unlike Schwenn, where the drive played an integral part in both the hotel and cab company operations by providing a spot to pick up and discharge guests and baggage, the driveway here was at best an incidental part of Gardner’s business which afforded alternate access to the parking lot. Fourth, there was no installation comparable to the telephone setup in Schwerm which mechanically tied up the driveway with the business.

Respondent city of Milwaukee contends that appellant Har-Van is liable under the safe-place statute since it actually holds legal title to the center of Van Burén street. An identical contention was rejected in Hansen v. Schmidman Properties, where the evidence established, as does the stipulation here, that the driveway lay within the land dedicated to the city for street purposes.

We conclude that the spot where Peppas fell was not a place of employment as to either Gardner or Har-Van, and that no liability could flow to either appellant on the grounds of any violation of that statute.

Nuisance.

The jury found appellants Har-Van and Gardner to be liable on a nuisance theory because each knew of the dangerous condition of the driveway. The general rule in Wisconsin is that abutting landowners (or lessees) are liable for only such defects or dangerous conditions in a public way as are created by active negligence on their part. It is undisputed that the depression in the driveway was caused solely by natural deterioration of the concrete and that appellants did not contribute to the condition in any manner.

Relying on Brown v. Milwaukee Terminal R. Co. and Plesko v. Allied Investment Co. respondents contend that appellants are liable in nuisance for knowingly permitting the driveway to remain in a dangerous condition. In both of these cases, decayed trees standing between the curb and sidewalk within the limits of the public street easement toppled on passing plaintiffs. However, Brown and Plesko, which imposed liability on the property owner because of falling limbs, were expressly distinguished in Hei v. Durand which involved a sidewalk defect “for the reason that in such cases the question of keeping a street or highway in repair is not involved, and the matter is wholly within the control of the property owner.” This differentiation was also mentioned in Plesko itself, where the court dismissed several cases cited by the property owner on the ground that:

“These decisions, all relating to injuries produced by the condition of the traveled portion of the sidewalk, do not determine the responsibility of abutting owners with respect to trees and other objects maintained in the tree border.”

Furthermore, the original Brown result was explained as being unsound in that it was grounded on “sidewalk cases” which in turn were based “upon the provisions of statutes and ordinances which impose liability upon local governmental units for the failure to perform a governmental function.” The rehearing predicated liability on common-law-nuisance theories rather than on the municipal-function concept. Thus it can be seen that Brown and Plesko are not controlling in the present case.

In any event, the defect was not actionable since the driveway was not intended for pedestrian use. In Kuhlman v. Vandercook, where the plaintiff slipped while walking on a shuffleboard layout, the court said:

“Plaintiff was using as a sidewalk a structure which was not erected for that purpose and the safety of which must be judged by the purposes for which it was constructed. It was not a trap and there is no evidence that the unusual conditions of slipperiness had existed long enough to fix liability upon the lessees if, indeed, there is any liability on their part where a shuffleboard is deliberately used as a sidewalk — a proposition that at least is open to considerable doubt.” (Emphasis added.)

This language was relied on by the court in Hansen v. Schmidman Properties, where the court dismissed the plaintiff’s contention that the driveway was not safe for pedestrians by saying “it was not constructed for the use of pedestrians nor did it appear to be placed there for the accommodation of pedestrians.”

Since, as a matter of law, neither appellant is liable to the plaintiff on the ground of either a violation of the safe-place statute or nuisance, and since the findings of negligence on the part of the city of Milwaukee as to the condition of the driveway and as to permitting a nuisance to continue stand unchallenged, the judgment for the plaintiff respondent should stand against the city of Milwaukee alone.

By the Court. — Judgment reversed as to both appellants ; appellants’ costs on this appeal to be taxed one half to respondent Peppas and one half to respondent city of Milwaukee; cause remanded for further proceedings consistent with this opinion.

The following memorandum was filed April 12, 1966.

Per Curiam

(on motion for rehearing). In our original opinion, in referring to Hansen v. Schmidman Properties (1962), 16 Wis. (2d) 639, 115 N. W. (2d) 495, we erroneously used the word “alley” in describing the place where the plaintiff fell. The correct expression should have been “driveway apron,” and we now correct such mistake. In no way does the use of the erroneous term affect the merits of the matter upon which rehearing is now sought.

The motion for rehearing is denied, without costs.

       (1957), 274 Wis. 505, 80 N. W. (2d) 380.

       “101.01 Definitions of terms used. ... (1) The phrase ‘place of employment’ includes every place . . . and the premises appurtenant thereto where either temporarily or permanently any . . . business is carried on, or where any . . . operation, directly or indirectly related to any . . . business, is carried on, and where any person is . . . employed . . . .”

       (1962), 16 Wis. (2d) 639, 115 N. W. (2d) 495.

       (1956), 272 Wis. 355, 75 N. W. (2d) 286.

       Id. at page 359.

         Supra, footnote 4, at page 642.

       (1964), 22 Wis. (2d) 478, 126 N. W. (2d) 14.

       (1961), 14 Wis. (2d) 601, 111 N. W. (2d) 495.

        Hansen v. Schmidman Properties, supra, footnote 4, at page 642.

        Supra, footnote 4.

        Steeno v. Wolff (1961), 14 Wis. (2d) 68, 74, 109 N. W. (2d) 452; Kunz v. Wauwatosa (1959), 6 Wis. (2d) 652, 656, 95 N. W. (2d) 760; First Nat. Bank & Trust Co. v. S. C. Johnson & Sons (1953), 264 Wis. 404, 409, 59 N. W. (2d) 445; Holl v. Merrill (1947), 251 Wis. 203, 207, 28 N. W. (2d) 363. See also sec. 81.17, Stats., which imposes liability for “any defect in any highway” on the municipality but renders any other person liable only when the damages are caused by “the wrong, default or negligence” of that party.

       (1929), 199 Wis. 575, 224 N. W. 748, 227 N. W. 385.

       (1961), 12 Wis. (2d) 168, 107 N. W. (2d) 201.

       (1963), 22 Wis. (2d) 101, 125 N. W. (2d) 341.

        Hei v. Durand, supra, footnote 15, at page 104.

         Plesko v. Allied Investment Co., supra, footnote 14, at page 174.

        Brown v. Milwaukee Terminal R. Co., supra, footnote 13, at page 588.

       (1942), 241 Wis. 418, 422, 6 N. W. (2d) 235.

        Hansen v. Schmidman Properties, supra, footnote 4, at page 643.


author: Heffernan, J.

text:
    Milwaukee & Suburban Transport Corporation, Appellant, v. Royal Transit Company, Inc., Respondent.

      January 7

    February 1, 1966.

      For the appellant there was a brief by Kivett & Kas-dorf, attorneys, and Nonaid J. Lewis of counsel, all of Milwaukee, and oral argument by Mr. Lewis.

    For the respondent there was a brief by Wickham, Borgelt, Skogstad & Powell, attorneys, and Kurt H. Frauen and F. Dean Lawson of counsel, all of Milwaukee, and oral argument by Mr. Frauen.

   Heffernan, J.

Was there negligence properly ascribable to the bus driver ?

There is some conflict in the evidence in regard to where the bus stopped in relation to the edge of the road. At the point where the accident occurred, the northbound lane of divided Highway 41 was 22 feet 4 inches in width. The shoulder at the bus stop was 10 feet wide. The bus was 8% feet wide. It is undisputed that the bus could have been driven off the paved portion of the highway. The police officer witness placed the left rear wheel of the bus 11 feet 9 inches from the right edge of the road, which would mean that the bus was completely on the pavement at the time of impact. The driver testified that his left wheels were on the pavement and the right wheels were on the shoulder. One passenger said the bus was completely off the pavement, one said it was partly on the pavement and partly off. Two truck drivers testified that no part of the bus was on the shoulder. It is clear that, though the evidence is to some degree disputed, there was ample credible evidence for the jury to conclude that the bus was brought to a stop at least in part upon the traveled portion of the road. The question presented is, therefore, whether stopping in this position upon the road constituted negligence.

The disputed negligence of the bus mainly concerns that which might be attributable to its position on the highway when it came to a stop. In essence the trial judge, relying on the statutes, instructed that, if this were a rural highway, the statute prohibited any person from stopping a vehicle upon the roadway if it were practical to stop off the roadway, and that, if this street were in a business or residential district, the vehicle must be parked with the right wheels within 12 inches of the curb or edge of the traveled roadway. The trial judge correctly stated that sec. 346.51, Stats. 1959, is a safety statute and its violation constitutes negligence. The appellant’s contention, however, is that there was not sufficient competent evidence before the jury to resolve initially the crucial factual determination of whether the area was outside of a “business or residence district.”

We conclude that the facts before the jury were sufficient to take its finding out of the realm of speculation and to support the obvious conclusion that the stopping occurred in a rural area. The bus driver testified that there were about four houses between the point of the accident and Layton avenue, a distance of three blocks. Various witnesses referred to the area as “open country,” “open country type highway,” and “rural highway coming into city.” Photographs evidence the comparative rural nature of the surrounding countryside. There was evidence in the record that the road in question was U. S. Highway 41, that it was a four-lane highway with shoulders approximately 10 feet wide. We conclude that the jury could, without resorting to speculation, and on the evidence before it, determine the nature of the district as required by sec. 346.51 (1), Stats. 1959.

Nor can we agree with appellant’s contention that the area, admittedly in the city of Milwaukee, could not be outside a business or residential district. The form of organization of the governmental unit in which the roadway is located is not material under the terms of this statute. It is clear that, bearing in mind the definitions of secs. 340.01 (6) and 340.01(50), Stats. 1959, there may be nonbusiness or nonresidential districts within a city. We have previously held that the statutory duty to pull off of the traveled portion of a highway applied though the roadway was within the limits of a city.

We therefore conclude that on the basis of the facts before it, the jury might properly have found that the conduct of the bus driver in stopping upon the roadway was negligent.

Was the negligence of the bus driver in stopping his bus upon the roadway a cause of the collision?

The appellant, bus company, argues that, though there be a finding of negligence upon its driver, such negligence was not causal.

The evidence shows that the driver of the truck had unobstructed vision ahead of him. He first saw the bus at a distance of 300 to 400 yards. He later observed it at a distance of 200 feet and, at that time, he decided to pass the bus. He checked his rearview mirror for overtaking and following traffic. When he looked up, he saw the bus at a distance of 16 to 20 feet directly ahead of him. He swung to the left but struck the left rear of the bus with the right side of his tractor and the right front corner of the trailer.

The appellant supports its contention that the negligence of the bus driver is not causal by the decision of this court in Swinkels v. Wisconsin Michigan Power Co. (1936), 221 Wis. 280, 267 N. W. 1. In that case the plaintiff attempted to pass a bus that was travelling ahead of him and approximately a foot and one-half over the center line. When attempting to pass, the plaintiff lost control and crashed into a ditch. Our court said:

“The plaintiff knew that the bus was a foot and a half over the black line when he overtook it and when he attempted to pass it. Whatever negligence may be predicated upon the fact that the bus was being operated to the left of the black line was static, a condition rather than a cause. [Citing cases.] The position of the bus on the highway could cause no injury to the plaintiff in the absence of his entering into the dangerous zone alongside of it. It is our opinion that the position of the bus on the highway did not cause the plaintiff’s injuries'.”

The appellant also cites Collar v. Meyer (1947), 251 Wis. 292, 29 N. W. (2d) 31, in which, relying on Swinkeis, this court held that, though an automobile was negligently parked upon the highway in violation of a safety statute, “it did not cause this accident.”

The rationale of Swinkels was promptly criticized by legal scholars. In discussing Swinkels, Professor Richard V. Campbell stated:

“. . . the jury found causal connection in fact between the defendant’s negligent act or acts and the injury to the plaintiff. Is it fair to say that no reasonable men could have reached these conclusions? It is difficult to justify the decisions on the basis of the court’s control over the fact finding functions of the jury.”

Prosser points out the infirmities of the position taken in SwinJcels.

“Many courts have sought to distinguish between the active ‘cause’ of the harm and the existing ‘conditions’ upon which that cause operated. If the defendant has created only a passive, static condition which made the damage possible, he is said not to be liable. But so far as the fact of causation is concerned, in the sense of necessary antecedents which have played an important part in producing the result, it is quite impossible to distinguish between active forces and passive situations, particularly since, as is invariably the case, the latter are the result of other active forces which have gone before .... Even the lapse of a considerable time during which the ‘condition’ remains static will not necessarily affect liability; one who digs a trench in the highway may still be liable to another who falls into it a month afterward. ‘Cause’ and ‘condition’ still find occasional mention in the decisions; but the distinction is now almost entirely discredited.”

The position this court has consistently taken on the question of causation is expressed in Lee v. National League Baseball Club:

“This court is committed to the ‘substantial factor’ test of determining proximate cause.”

In Pfeifer v. Standard Gateway Theater, Inc., we urged jury instructions using the substantial-factor test in determining legal cause. We there said:

“ ‘Substantial factor’ is probably as simple and accurate a term in defining proximate or legal cause as has thus far been suggested. An instruction on proximate cause would be proper which informs the jury that by proximate cause, legal cause, or cause (whichever of such three terms as may have been used in framing the causation question in the special verdict) is meant such efficient cause of the accident as to lead the jurors, as reasonable men and women, to conclude that the negligence of A (A having been found negligent by the jury’s answers to prior question in the verdict) was a substantial factor in causing the injury.”

Although recent cases have uniformly followed the “substantial factor” rule, we have frequently distinguished fact situations to avoid the application of the “static condition” concept of Swinkels.

Because the Swinkels approach fails to consider the problem of causation on the “substantial factor” basis as approved and followed by this court, we do not consider it valid authority for the determination of legal cause, and to that extent expressly overrule it.

The instant case was properly submitted to the jury on an instruction directing the jury that “it must appear that the negligence under consideration was a substantial factor in producing the collision.”

In Jeffers v. Peoria-Rockford Bus Co. we relied upon the following quotation from Prosser in deciding whether the question of cause was for the jury:

“Prosser, Law of Torts (2d ed.) p. 281, sec. 50, states that ‘where reasonable men could not differ as to whether the defendant’s conduct was, or was not, a substantial factor in producing the result’ the determination of the question of causation is for the court, but ‘in cases where reasonable men might differ — which will include all but a few of the cases in which the issue is in dispute at all — the question is one for the jury.’ (Emphasis supplied.)”

It is obvious that reasonable men might differ on the question of whether the bus driver’s negligence was the cause of the collision. As such, the decision was for the jury and its finding is sustained by credible evidence to support it.

Was it error for trial judge to refuse instruction to jury on following too closely?

The trial judge instructed the jury in regard to negligence as to “lookout,” but refused a requested instruction on following too closely. The trial judge in his decision stated:

“. . . this truck driver had placed himself in the position of danger in which he could not avoid the accident because of his failure to maintain a consistent proper lookout, in that his attention was deviated to the rear rather than to the forward operation of his automobile. It was his intention to pass. Taking all these factors into consideration, I was of the opinion that the primary problem was not that of following too closely but, rather, of lookout.”

We agree with the trial judge that to instruct on following too closely would be improper.

The truck driver testified that he was following the bus at a substantial distance (200 feet) when he decided to pass and turned his attention to possible traffic to the rear. When he looked again, the collision was imminent and inevitable. True, the outcome was a violent meeting that can only be described as too close for comfort or safety, but clearly the factor resulting in the impact was failure to keep a proper and reasonably constant lookout. Although we have previously said that there is a duty of a driver of a following vehicle “to maintain such a distance behind the preceding vehicle as will enable him to stop his car and avoid a collision,” there is no evidence in this case that would reasonably lead one to conclude that the truck driver could not have stopped in time or avoided the collision had he not been guilty of negligent lookout.

It is perfectly clear that the legislature did not intend the provisions of sec. 346.14, Stats. 1959, to apply in all rear-end collisions. The statute is directed against the dangerous and pernicious practice of “tailgating.”

We hold that the trial judge did not err in refusing to give the requested instruction.

Was the comparison of negligence by the jury so disproportionate as to warrant a new trial?

The jury apportioned 35 percent of the negligence to the bus driver and 65 percent to the driver of the truck. On plaintiff’s motions after verdict, the trial judge was asked for an order reducing the jury’s finding of negligence on the plaintiff “to such amount as a reasonably unbiased and properly instructed jury must return upon all of the evidence.” Alternatively, plaintiff asked for a new trial. The trial judge refused to grant either.

This court on the basis of the entire record cannot conclude that the apportionment of negligence was not within the limits of reason. The comparison of negligence is ordinarily within the province of the j ury.

The following is determinative of this court’s position:

“The trial court, which had the discretion to grant a new trial, considered the verdict fair, and there is nothing in the record to indicate that the percentages of negligence fixed by the jury are so grossly disproportionate as to justify this court in substituting its judgment for that of the jury and the trial court.”

By the Court. — Judgment affirmed.

       Sec. 346.51, Stats. 1959, provides in part:
      “Stopping, standing OR PARKING outside op business or residence districts. (1) No person shall park, stop or leave standing any vehicle, whether attended or unattended, upon the roadway of any highway outside a business or residence district when it is practical to park, stop or leave such vehicle standing off the roadway, . . .”
      Sec. 340.01 (6), Stats. 1959, provides:
      “ ‘Business district’ means the territory contiguous to a highway when 50 per cent or more of the frontage thereon for a distance of 300 feet or more is occupied by buildings in use for business.”
      Sec. 340.01 (50), Stats. 1959, provides:
      “ ‘Residence district’ means the territory contiguous to a highway not comprising a business district where the frontage on such highway for a distance of 300 feet or more is mainly occupied by dwellings or by dwellings and buildihgs in use for business.”

         Jeffers v. Peoria-Rockford Bus Co. (1957), 274 Wis. 594, 80 N. W. (2d) 785.

        Swinkels v. Wisconsin Michigan Power Co., supra, page 286.

        Collar v. Meyer, supra, page 294.

       Campbell, Negligence, 1936-1937 Wisconsin Law Review, 66, 63. See also Campbell, Duty, Fault, and Legal Cause, 1938 Wisconsin Law Review, 402, 422; Campbell, Work of the Supreme Court, Torts, 1941 Wisconsin Law Review, 6, 113; Campbell, Recent Developments of the Law of Negligence in Wisconsin, 1956 Wisconsin Law Review, 5, 34. Professor Campbell in the latter article referred to Swinkels as “highly disturbing.”

       Prosser, Law of Torts (hornbook series, 3d ed.), p. 286, sec. 49.

         (1958), 4 Wis. (2d) 168, 89 N. W. (2d) 811.

       Id. page 175.

       (1952), 262 Wis. 229, 236, 55 N. W. (2d) 29.

       Id. page 236.

        Wintersberger v. Pioneer Iron & Metal Co. (1959), 6 Wis. (2d) 69, 74, 75, 94 N. W. (2d) 136.

       (1957), 274 Wis. 594, 603, 80 N. W. (2d) 785.

       See. 346.14, Stats. 1959, provides in part:
      “DISTANCE between vehicles. (1) The operator of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicle and the traffic upon and the condition of the highway.”

        Phillips v. Haring (1952), 262 Wis. 174, 180, 54 N. W. (2d) 200; Hibner v. Lindauer (1963), 18 Wis. (2d) 451, 456, 118 N. W. (2d) 873.

        Jankovich v. Arens (1952), 262 Wis. 210, 215, 54 N. W. (2d) 909.