author: Dieterich, J. Per Curiam

text:
    Hartley, Administratrix, Appellant, v. St. Francis Hospital and others, Respondents.

      June 1

    June 30, 1964.

      For the appellant there were briefs by Hale, Skemp, Hanson, Schnurrer & Skemp and Quincy H. Hale, all of La Crosse, and oral argument by Quincy H. Hale.

    For the respondents there was a brief by Johns, Pappas & Flaherty of La Crosse, for St. Francis Hospital and Esther Roberton, and by Moen, Sheehan & Meyer of La Crosse, for Paul W. Phillips, and oral argument by Robert D. Johns and L. E. Sheehan.

       Motion for rehearing denied, without costs, on September 2, 1964, Heffernan, J., not participating.

   Dieterich, J.

The original complaint set forth two causes of action — one in the plaintiff’s own behalf, alleging that in settling with Avery and the insurance company, he did not intend to release his claim against the defendants for malpractice, and did not intend to transfer this claim to Avery and his insurer by subrogation. The second cause of action was brought by plaintiff as assignee of the insurance company. Avery was not joined as a defendant in the complaint.

The defendants, St. Francis Hospital, Esther Roberton, and Dr. Phillips, demurred to the first cause of action on grounds that it failed to state a cause of action; and to the second cause of action on grounds of a defect in parties plaintiff. The court sustained the demurrers, holding that the general release given by plaintiff to the insurance company carried with it any claim for injuries resulting from later medical malpractice, and thus plaintiff could not sue for these damages in his own behalf. The court also held that Avery owned by subrogation a part of plaintiff’s claim for damages for medical malpractice, and that Avery must be joined as either a party plaintiff or a party defendant.

Plaintiff then served an amended summons and complaint on Lloyd Avery at his home in Minnesota, and served the amended complaint on all other defendants. The complaint set forth one cause of action, alleging the same facts as the original complaint, and the additional allegation that Lloyd Avery refused to join as a party plaintiff. Avery was added by the plaintiff as a party defendant without a court order, and he has made no appearance in the case.

The hospital, Esther Roberton, and Dr. Phillips demurred to the amended complaint on the following grounds: (1) That the complaint does not state facts sufficient to constitute a cause of action; (2) that there is a defect in parties plaintiff in that Lloyd Avery, who owns a portion of the cause of action, is not a plaintiff; (3) that there is a defect in parties defendant, in that Lloyd Avery is not a proper party defendant; and (4) that the court does not have jurisdiction over Avery. The trial court sustained the demurrers to the amended complaint, and stated in a memorandum decision that since the unconditional release was given by the plaintiff some five months after the alleged malpractice had occurred, the case is governed by the general rule that a general release is presumed to include damages for an aggravation of the original injury. The trial court also concluded that there was a defect in parties because the proper procedure was not taken for the inclusion of Avery into the action. An order was entered on December 11, 1963, sustaining the defendants’ demurrers, and allowing the plaintiff twenty days to amend the complaint. The appeal is from the order.

The major issue involved on the instant appeal is whether a general release bars a plaintiff from suing for aggravation of the original injuries by reason of alleged medical malpractice, when the release was given some five months after the alleged malpractice occurred. The trial court’s rationale in sustaining the demurrers to the amended complaint appears to be that since the plaintiff was barred from commencing an action for malpractice by reason of his settlement and release, the subsequent assignment from the insurer gives him nothing, for he cannot accomplish by indirect means what he is barred from accomplishing directly.

Wisconsin follows the general rule that a settlement made in return for a general release is presumed to include compensation for the injuries occasioned by medical malpractice committed prior to the execution of the release. Noll v. Nugent (1934), 214 Wis. 204, 208, 252 N. W. 574; Greene v. Waters (1951), 260 Wis. 40, 49 N. W. (2d) 919. This presumption is conclusive unless the injured person, in releasing the tort-feasor, saves to himself his cause of action against the physician by the use of some appropriate provision in the release by which the settlement was effected. See Travelers Indemnity Co. v. Home Mut. Ins. Co. (1961), 15 Wis. (2d) 137, 139, 111 N. W. (2d) 751.

When the insurance company settled with the plaintiff and accepted the general release, the plaintiff himself became barred from proceeding against the defendants, since he executed the release some five months after the alleged acts of malpractice were committed. See Greene v. Waters, supra.

Several months after the execution of the release, the plaintiff procured an assignment of the insurance company’s interest “in any claim to which it may have become sub-rogated to” by reason of the prior settlement and release.

The plaintiff, by the settlement and general release given to the insurance company, fixed the value of his entire cause of action at $25,000, the amount of the settlement. The insurance company presumably acquired a right to recoup some part of this amount from the hospital, doctor, and nurse, if it could prove malpractice. Such recovery would be that portion of the $25,000 as represented damages caused by the malpractice. The right of the insurance company would be in the nature of a claim for indemnity. The insurance company did not acquire this right by subrogation, and it was inaccurate to refer to it as such in the assignment.

In any event, it would be fundamentally inconsistent for the plaintiff to be allowed to acquire by assignment a right to recover damages for the malpractice in addition to the $25,000 at which he fixed the value of his entire cause of action. This right is recognized in the insurance company only for the purpose of allowing it to recoup a part of the sum which it paid in settlement of the plaintiff’s cause of action.

It follows that the order of the trial court sustaining the demurrers to the amended complaint is affirmed, and the complaint dismissed.

By the Court. — Order affirmed.

The following opinion was filed September 2, 1964 :

Per Curiam

(on motion for rehearing). Prior to our decision in the instant case this court had repeatedly held that, where the tort-feasor or his insurance carrier settles a personal-injury claim which injury has been aggravated by malpractice and receives a release that contains no reservation of the malpractice cause of action, the tort-feasor or insurer succeeds by right of subrogation to the claimant’s malpractice action. Greene v. Waters (1951), 260 Wis. 40, 43, 44, 49 N. W. (2d) 919; Noll v. Nugent (1934), 214 Wis. 204, 208, 252 N. W. 574; Retelle v. Sullivan (1927), 191 Wis. 576, 578, 579, 211 N. W. 756, 50 A. L. R. 1106; Fisher v. Milwaukee E. R. & L. Co. (1920), 173 Wis. 57, 60, 180 N. W. 269.

Our original opinion herein had the effect of overruling these holdings sub silentio. We withdraw the statement in the original opinion that the right acquired by the instant insurance carrier for the malpractice action was not acquired by subrogation. We are satisfied that it was. However, we determine it to be contrary to sound public policy to allow plaintiff administratrix to acquire by assignment from the insurance carrier a right to recover damages for the malpractice in addition to the $25,000 received as the fixed value of the entire cause of action including the malpractice. This latter was the rationale of our original holding and we adhere thereto.

The motion for rehearing is denied without costs.


source: Caselaw Access Project

author: Gordon, J.

license: Public Domain

text:
    State Medical Society of Wisconsin, Appellant, v. Manson, Commissioner of Insurance, Respondent.

      June 2

    June 30, 1964.

      For the appellant there were briefs by Murphy, Stolper & Desmond of Madison, and John A. Kluwin and Kluwin, Dunphy, Hankin & Hayes, all of Milwaukee, and oral argument by John A. Kluwin.

    For the respondent there was a brief by George Thompson, attorney general, and Elliot N. Walstead of Madison, special counsel, and oral argument by Daniel T. Flaherty of La Crosse.
   Gordon, J.

The two principal problems presented by this appeal are (1) whether a podiatrist is a “licensed physician and surgeon” and (2) whether the Commissioner of Insurance was authorized to determine that the policies of the Wisconsin Physicians Service are vague regarding the exclusion of the services of podiatrists.

1. Is a Podiatrist a Physician?

The trial court concluded that a podiatrist is not a “licensed physician and surgeon,” and we fully agree with that conclusion. There are several references to the term “physician” in the Wisconsin Statutes. Sec. 990.01 (28), Stats., provides as follows:

“Physician, surgeon or osteopath. ‘Physician,’ ‘surgeon’ or ‘osteopath’ means a person holding a license or certificate of registration from the state board of medical examiners.”

In connection with fee splitting, the word “physician” is defined in sec. 147.225 (4) (b), Stats.:

“ ‘Physician’ means an individual holding an unlimited license to practice medicine and surgery in Wisconsin.”

Ch. 148, Stats., authorizes the State Medical Society to establish a health insurance plan, and sec. 148.03 (1) provides in part as follows:

“Any person covered by or insured under such plan shall be free to choose for sickness care any medical or osteopathic physician licensed to practice in Wisconsin who has agreed to abide by such plan according to its terms and no such physician or osteopath shall be' required to participate exclusively in any such plan.”

The practice of podiatry is considered in ch. 154, Stats. Sec. 154.01 expressly forecloses a podiatrist from employing “major surgery or the use of a general anesthetic.” It also limits the area of treatment to the feet, except that treatment shall include “the tendons and muscles of the lower leg insofar as they shall be involved in the conditions of the feet.”

Sec. 154.04, Stats., authorizes the state board of medical examiners to issue a certificate of registration to a podiatrist who is properly qualified. A podiatrist thus receives a certificate of registration rather than a license. Although not referring to podiatrists, sec. 147.17 (1) provides in part as follows:

“No certificate of registration shall be considered equivalent to a license.”

The policies issued by the appellant limit benefits to services rendered by licensed, physicians.

The foregoing consideration of the statutory expressions necessitates the conclusion that a podiatrist is not a “licensed physician and surgeon” in Wisconsin. Even in the absence of such clarifying statutory language, we would conclude that the aforesaid quoted words, given their ordinary meaning, refer to licensed medical doctors and doctors of osteopathy, to the exclusion of others who may treat the sick but are not, in common parlance, regarded as physicians and surgeons. In our opinion, podiatry is one of the groups excluded when the ordinary and natural meaning of the words is applied.

A consideration of the case law tends to substantiate this conclusion. A comparable problem was considered by the West Virginia supreme court, which decided that a chiropodist was not a licensed physician under the statutes of that state. Medical Care v. Chiropody Asso. (1956), 141 W. Va. 741, 93 S. E. (2d) 38. The court further concluded that reimbursement for the services of a chiropodist was not provided by the health insurance plan which was operated primarily by licensed physicians in that state.

Isaacson v. Wisconsin Casualty Asso. (1925), 187 Wis. 25, 30, 203 N. W. 918, examined the issue of whether a chiropractor was a “legally qualified physician” under the terms of a policy of insurance. The court concluded that the term “physician” was “applicable to one who practices medicine” and did not include a chiropractor.

The respondent brings to our attention the case of Raynor v. State (1885), 62 Wis. 289, 296, 22 N. W. 430. There it was held that a homeopathic physician could not be convicted for a violation of a statute which prohibited one from using the title “doctor” without having a diploma from a duly incorporated medical society or college and without being a member of a state or county medical society. The Raynor Case was a criminal case, and it related to a type of service which was far more common in 1885 than it is today. It should also be noted that in 1885 physicians were not licensed. In our opinion, the Raynor Case is not controlling in the case at bar.

2. Are the Policies Misleading?

The commissioner urges that the policies of the Wisconsin Physicians Service are sufficiently misleading so that he was obligated in the furtherance of his statutory duties to require that the policies spell out the exclusion of the services of podiatrists in more express terminology. In our opinion, the policies are clear with regard to this exclusion, and it would be inappropriate for the commissioner to require further definition by the appellant.

We recognize that under secs. 148.03 (2) and 200.26 (6), Stats., the Commissioner of Insurance, may, after a hearing and notice, withdraw his approval of any provision in an insurance policy even though he has previously approved thereof. This action may be taken if the provision is unfair, misleading, or encourages misrepresentation of the insurance contract. See also sec. 201.045 (1). Notwithstanding these powers, it would be error for the commissioner to require that the State Medical Society insert in its policies an exclusionary clause for podiatrists; the legislature in sec. 148.03 authorized the creation of a sickness-care plan wherein reimbursement would be limited to “any medical or osteopathic physician licensed to practice in Wisconsin.”

The existing insurance policies reasonably follow the statutory language; they are not deceptive or misleading regarding the denial of reimbursement for the services of podiatrists. They may not be construed to provide benefits for the services rendered by podiatrists.

By the Court. — Order overruling the demurrer to the answer reversed. Judgment reversed, and cause remanded with directions to enter a judgment granting declaratory relief to the appellant.


author: Hallows, J.

text:
    Costas and Wife, Respondents, v. City of Fond du Lac, Appellant. Costas Enterprises, Inc., v. Same, Appellant.

      June 2

    June 30, 1964.

      For the appellant there was a brief and oral argument by Henry B. Buslee, city attorney.

      For the respondents there was a brief by Worthing & Schneider, attorneys, and Edgarton & Hobbs of counsel, all of Fond du Lac, and oral argument by Kenneth E. Worthing and Neil Hobbs.

   Hallows, J.

The defendant claims it has not created a nuisance by the operation of its sewage-disposal plant; the plaintiffs have suffered no irreparable injury; the condition of the injunction is impossible of performance; and the' court may not direct the details and the manner in which a nuisance is to be abated. Because of the agreement of the parties concerning the finality and quantity of the proof, the decision of the court must be tested by the rules applicable to a final judgment.

The city of Fond du Lac since 1913 has operated a sewage-disposal plant in the north end of the city not far from Lake Winnebago. The plaintiffs are owners of valuable real estate located a short distance south and somewhat to the east of the sewage-disposal plant. Plaintiffs’ property consists of an outdoor movie theater and an outdoor restaurant; a large motel with an outdoor swimming pool is in the process of being constructed. Construction of this motel was undertaken upon the assurances the offensive odors emanating from the sewage-disposal plant would be corrected.

For some years and more specifically since 1956 or 1957, the problem of obnoxious and offensive odors from the sewage-disposal plant has existed. It is established by the evidence that these strong and obnoxious odors, developed at the plant, were carried by the wind over the plaintiffs’ premises and over a large part of the city. There is some testimony the odors were noticeable as far as two miles out in Lake Winnebago. The odors have made life extremely annoying and unbearable to people subjected to them and particularly the evidence shows the plaintiffs’ business, customers, and employees were affected by the odors. Plaintiffs’ theater is subject to a lease which permits the lessee during the term of the lease to purchase the premises at its then market value.

In 1928 the city of Fond du Lac provided sanitary sewage treatment at its plant by constructing a sludge-digesting system. In 1950 a secondary treatment of sewage was provided but the old sludge digesters were not replaced. Because of the many complaints of the odors, the city in 1956 and 1957 experimented with the use of chemicals and other methods of odor control. Also in 1957 and again in 1959 the city had extensive surveys or studies made of the sewage-disposal plant. There were several causes of the odors but the primary one shown by both reports was the condition of the old sludge digesters. In 1959 a chlorination building was added for the treatment of final effluent before its release into the lake and more sludge beds were added and in 1963 a new screening building was placed in operation. However, the city up to the time of the hearing had not constructed new digesters.

A request for an appropriation for such digesters was included in the 1960 budget for the superintendent of the sewage-disposal plant. This item was not approved and the superintendent was informed not to repeat a request when an item had been requested and disallowed. There was testimony the digesters in 1961 created an explosion hazard and the fire department for a lengthy period of time was present at least twice a day to help reduce the safety hazard.

The city’s contention that it is not causing a nuisance in the operation of its sewage-disposal plant can hardly be taken seriously. The argument, in effect, is that the nuisance, if any, is a public nuisance and not a private one as to the plaintiffs and, therefore, the plaintiffs have no cause of action. A nuisance may be both public and private in character. Mitchell Realty Co. v. West Allis (1924), 184 Wis. 352, 199 N. W. 390; Restatement, 4 Torts, ch. 40, p. 217. A public nuisance which causes a particular injury to an individual different in kind and degree from that suffered by the public constitutes a private nuisance. Such injury is usually a material and unreasonable impairment of the right of enjoyment or the individual’s right to the reasonable use of his property or the impairment of its value. Stadler v. Milwaukee (1874), 34 Wis. 98; Schneider v. Fromm Laboratories (1952), 262 Wis. 21, 53 N. W. (2d) 737. This concept is expressed in sec. 280.01, Stats., by providing any person may maintain an action to recover damages for or to abate a private nuisance and any person, county, city, village, or town, may maintain an action to recover damages or to abate a public nuisance from which injuries peculiar to the complainant are suffered.

A private nuisance to an individual may also be a private nuisance to other individuals in their capacity other than as members of the public. The test is not the number of persons injured but the character of the injury and of the right impinged upon. One may be especially affected although others are similarly affected. Anstee v. Monroe Light & Fuel Co. (1920), 171 Wis. 291, 177 N. W. 26. Conversely, the fact the nuisance may or may not be enjoined as a public nuisance has no effect upon the right to abate a private nuisance.

The city contends the plaintiffs had not been injured in relation to their property because they have not lost money in their business and point to an advertisement of the outdoor restaurant in the daily paper thanking the public for a most successful season in 1963. There is no requirement the plaintiffs must go broke in their business in order to establish irreparable damages as a ground for abating a nuisance. If the damages cannot be adequately compensated in money or are impossible of determination, an injunction is the appropriate relief to abate a nuisance unless there are other intervening considerations which require the denial of the injunctional relief or at least its delay.' The court’s finding that the plaintiffs were substantially injured in their use and enjoyment of their property and that the value of the property was affected is not against the great weight and clear preponderance of the evidence and will not be disturbed.

Relying on Hasslinger v. Hartland (1940), 234 Wis. 201, 290 N. W. 647, the defendant contends the nuisance was caused by the operation of the plant approved by a state agency and, therefore, was not actionable. In Hasslinger it is observed but not held (p. 207), “It may be that if the claim of the adjoining landowner is that the manner of operation is such as to constitute a nuisance, the fact that the plant was built according to specifications of the state board of health and is being operated in accordance with their orders and regulations may conclusively establish that there is no nuisance arising out of design or operation of the plant.” This misleading language is overruled because of the implication that operation of the sewage-disposal plant in accordance with specifications and orders and regulations of the state board of health cannot constitute a nuisance.

This court does not subscribe to the doctrine that the state board of health by virtue of sec. 144.03, Stats., is given exclusive jurisdiction over the determination of nuisance so as to foreclose a judicial determination of whether the operation of a sewage-disposal plant results in creating a nuisance. This doctrine as expounded in Robinson Brick Co. v. Luthi (1946), 115 Colo. 106, 169 Pac. (2d) 171, 166 A. L. R. 655, and applied to a zoning ordinance results in a legislative pre-emption of the public-nuisance field and allows only damages when such public nuisances also constitute a private nuisance. In Hasslinger we held the approval by the state board of health of the plans which involved the location of the sewage-disposal plant did not foreclose a judicial determination of whether the plant was a nuisance by reason of its location; the same may be said of the method of its operation. As early as 1901 in Winchell v. Waukesha, 110 Wis. 101, 85 N. W. 668, we pointed out the great weight of the authorities, both American and English, supported the view that legislative authority to install a sewer system carried no implication of authority to create or maintain a nuisance and did not matter whether such nuisance resulted from negligence or from the plan adopted.

The approval of the method of operation of the sewage-disposal plant is pertinent not to the existence of the nuisance but to the issue of whether it is feasible or practicable to give injunctional relief for the nuisance. On the same basis we consider the doctrine of “coming to the nuisance” as being properly an element in the consideration of the issue of abatement and not the existence of the nuisance. See 39 Am. Jur., Nuisances, p. 472, sec. 197; dissent in Hartung v. Milwaukee County (1957), 2 Wis. (2d) 269, 86 N. W. (2d) 475, 87 N. W. (2d) 799. Before the city can invoke the doctrine it must show it has used all reasonable means to prevent the nuisance. This the city has not done.

It is contended the trial court has imposed an impossible condition upon the city. This argument centers upon the fact the order enjoins the city absolutely after June 15th from permitting gases to escape from the sewage-disposal plant without deodorizing and purifying them so as to avoid the creation of a nuisance. The city claims it is impossible to operate the plant in such a manner by June 15th. The city was given approximately six months to make preparations to abate the nuisance. Attached to the back of the order was a memorandum in which the court stated the order contemplated the city would attempt to comply in a bona fide way with the order and take immediate steps to place the plant in a businesslike working and operating condition and to deodorize and purify gases by the use of in-plant chlorination and of deodorizing chemicals. The court stated it recognized that 100 percent success might not always be obtainable but such efforts on the part of the city would be a basis for the city’s temporarily being relieved from the strict compliance with the order. The order also contemplated the city would proceed with all reasonable speed in the preparing of plans and specifications for the building of new digesters and an application for financial aid from the federal government would be made at the earliest time on the basis an emergency existed. The court stated that a period of two years for the building and completing of the new digesters as contemplated by the city was unreasonable.

By this manner of enjoining the city and although the injunction is absolute in form, the city is not required to do the impossible. The city has not shown that to maintain the plant in a businesslike working and operating condition is' impossible or that the use of in-plant chlorination and the use of deodorizing chemicals is likewise impossible. The position of the defendant city is it should not be hurried or nudged along in abating this nuisance because it has existed so long now there is no need to hurry and the city will eventually take care of the problem. Essentially, the attitude is that the city because it is a city is not subject to the law. It is quite apparent from the record and so believed by the trial court that the city was not inclined to take the nuisance seriously or to do much about it. The reasons advanced for the delay in solving this problem by the city officials did not justify, in the trial court’s opinion, the city’s inaction. We cannot say on the evidence presented the trial court was in error in considering the city was dragging its feet in providing new digesters and in abating the nuisance. We approve the form of the order made by the trial court. It is substantially what was approved in Briggson v. Viroqua (1953), 264 Wis. 47, 58 N. W. (2d) 546, and in Winchell v. Waukesha, supra.

The city argues the order directs the manner in which it must abate the nuisance and this a court of equity cannot do. We consider both points without merit. Generally the means whereby the nuisance is to be abated is left to the direction of the defendant tort-feasor. If the means by which the defendant may abate the nuisance is immaterial and the court is looking solely to the end result, it has been said that the means of abating the nuisance is of no concern of the court. Thomas v. Clear Lake (1955), 270 Wis. 630, 72 N. W. (2d) 541; Behnisch v. Cedarburg Dairy Co. (1923), 180 Wis. 34, 192 N. W. 447. Normally in such cases there is no evidence that any particular method of abating the nuisance is important. However, there are situations in which the balancing of convenience or equities is attempted by the court and the decree does provide in detail how the nuisance shall be abated or partially controlled. It is recognized the court may require the defendant to adopt methods and appliances where their adoption will avoid the conditions complained of. 39 Am. Jur., Nuisances, p. 443, sec. 172, Form and Scope of Injunction. The issue of whether the form of the decree should be affirmative and mandatory in requiring specific acts to abate the nuisance or should be prohibitive is not a question of the court’s powers- but whether a need exists for the exercise of equitable power in requiring affirmative acts to reach a desired result. Many prohibitory orders require only desisting for compliance but when a nuisance results from the omission of an act the prohibitory form of the order necessarily requires the doing, in fact, of an act.

If, for sake of argument, the trial court should not on these facts order the manner in which the city must abate the nuisance, we do not find the court has done so. Any act which will abate the nuisance will comply with the order. The memorandum is not an order requiring the performance of the acts therein contemplated by the court. The performance .of such methods of abating the nuisance is a condition or as the court states a basis for relief if such methods are tried and bona fide performance does not eliminate the nuisance.

The order is not broader, and should not be, than necessary to give the plaintiffs the relief to which they are entitled. We do not condemn its manner of coercion. It is the very nature of an injunction to be coercive. While the injunction may fit the facts snugly and be embarrassing to the city officials, no reason appears why it is unjust or how the city will be harmed or why the city should be relieved from showing good faith in respecting the private rights of its citizens.

By the Court. — Order affirmed.

       Under some circumstances where there is no injury to an interest in land a private cause of action may arise which is not classified as a private nuisance. Restatement, 4 Torts, ch. 40, p. 217.


author: Currie, C. J.

text:
    Dombeck (Carol) and others, Plaintiffs, v. Chicago, Milwaukee, St. Paul & Pacific Railroad Company, Defendant and Respondent: Dombeck (Russell), Plaintiff and Appellant: Dombeck (Richard) and another, Defendants and Appellants.

      June 3

    June 30, 1964.

      For the appellant Russell Dombeck there was a brief by Kaftan, Kaftan & Kaftan of Green Bay, and oral argument by /. Robert Kaftan.

    For the appellants Richard Dombeck and the Integrity Mutual Insurance Company, there was a brief by Cornelisen, Denis sen, Kranzush & Kuehn, and oral argument by David J. Condon, all of Green Bay.
    For the respondent there was a brief by Welsh, Trow-bridge, Bills, Planert & Gould of Green Bay, and Bender, Trump, Davidson & Godfrey and Rodger S. Trump, all of Milwaukee, and oral argument by Rodger S. Trump.

   Currie, C. J.

The following issues are presented by this appeal:

(1) Did the trial court err in holding that any negligence of the Railroad Company with respect to lookout was not causal as a matter of law ?

(2) Should questions inquiring whether the Railroad Company was causally negligent with respect to speed have been submitted in the special verdict ?

(3) Can the jury’s finding apportioning 50 percent of the total aggregate causal negligence to the Railroad Company be sustained on the basis that the jury was thereby finding the railroad causally negligent with respect to speed ?

(4) Because of plaintiff Russell Dombeck having sponsored his son Richard’s application for a driver’s license under sec. 343.15 (2), Stats., was Richard’s negligence thereby imputed to Russell Dombeck so as to preclude the latter from recovering any damages against Richard and Integrity Mutual ?

Lookout Issue.

The trial court set aside the jury’s finding of causal negligence with respect to lookout on the part of the Railroad Company on the ground that such negligence was not causal as a matter of law. This determination was grounded upon this court’s decision in Hynek v. Kewaunee, G. B. & W. R. Co. (1947), 251 Wis. 319, 29 N. W. (2d) 45.

Richard Dombeck testified in part as follows: He was driving at a speed of five to eight miles per hour as he approached the crossing. When he first looked to the south and became aware that a train was approaching, the car bumper was close to the west rail of the railroad track and that from his position in the car he was nine to 10 feet from the crossing. His excuse for not looking sooner was that a high bank along the right-of-way obscured his vision up to that point. He figured because of the slippery condition of the roadway that if he attempted to stop he would skid onto the track. Therefore, he accelerated the car in an attempt to get across the track ahead of the train.

At the time, the diesel locomotive of the train was being operated by the fireman who was seated in the engineer’s seat on the right or east side of the cab. The engineer was seated on the left side which was the side from which the Dombeck car approached the crossing. While the fireman was afforded a good view of the crossing when the train was some distance south of it, the hood of the locomotive obscured his view to the west as the train came closer to the crossing. The engineer died prior to trial and we do not know when he first saw the approaching Dombeck car. The fireman testified that when the locomotive was about 50 feet from the crossing the engineer shouted, “Plug her!” In railroad parlance this means to set the emergency brakes immediately, which the fireman did. The fireman did not himself see the Dombeck car until the locomotive was approximately 30 feet from the crossing at which time the car was already on the track.

Richard Dombeck’s testimony that his view of the approaching train was obscured by the bank along the west side of the right-of-way is disputed by the photographs taken of the crossing taken two days after the accident. These pictures clearly indicate that the locomotive would have been visible to Richard, if he had looked, long before he reached the point when he testified he made his first observation. This is because the height of the locomotive was 14 feet, six inches above the track and the bottom of the headlight was 11 feet, three inches above the track. Likewise the Dombeck car could have been seen by the engineer before the train reached a point 50 feet from the crossing.

In considering the evidence bearing on the Railroad Company’s negligence as to lookout, independent of the element of causation, it is rather difficult to sustain the jury’s finding in that respect. This issue is confined tó the lookout of only two railroad employees, the fireman and the engineer. The train may well have been in such proximity to the crossing when the Dombeck car first came into view that the forward part of the locomotive entirely obscured the view of the fireman. The engineer may have seen the car prior to shouting, “Plug her!”, but it was not until he so shouted that it would be obvious to anyone that the car proceeding at its very slow speed was not going to stop. Furthermore, the engineer being deceased at time of trial, a presumption arises that he exercised due care. Ray v. Milwaukee Automobile Ins. Co. (1939), 230 Wis. 323, 327, 283 N. W. 799; Henthorn v. M. T. C. Corp. (1957), 1 Wis. (2d) 180, 187, 83 N. W. (2d) 759, 79 A. L. R. (2d) 142. While this presumption did not in itself constitute evidence, and might be rebutted by any evidence in the case from which could be reasonably drawn an inference of negligent lookout on the part of the engineer, appellants have pointed to no such evidence. However, even assuming that the finding of negligent lookout against the Railroad Company is supported by credible evidence, it could not be causal under our holding in Hynek v. Kewaunee, G. B. & W. R. Co., supra.

In the Hynek Case the collision occurred at a city crossing, at 7 o’clock in the evening. It was dark and snowing. The Hyneks were familiar with the crossing and reduced their speed to seven or eight miles per hour as they approached it. They testified that they looked and saw no train, neither did they hear one. Mr. Hynek increased his speed to cross the tracks, and was struck on the right side while crossing. On the issue of the train’s lookout the testimony of the fireman was that he saw the headlights of the Hynek car when it was 25 to 50 feet from the track, at which time he called for the application of the emergency brakes. The train traveled about 339 feet before it was brought to a full stop. The jury found the railroad company guilty of negligent lookout and apportioned 27)4 percent of the aggregate negligence to it. On appeal this court reversed and made the following pertinent statements (pp.323, 324) :

“Even if the fireman had seen, or in the exercise of due care ought to have seen the Hynek car sooner, the evidence discloses no facts that would create a legal duty in him to do any more than he did. There was nothing at the crossing to obstruct the automobile driver’s view of the tracks. The Hynek car at all times was moving at a rate of speed which would enable the driver to stop at a point where he would be free from danger. If the fireman had observed the approach of the car back of its twenty-five to thirty-foot position from the track, he would have seen nothing to indicate a probability that the car would proceed over the tracks while the train was moving. Indeed, the driver of the car testified that when he was about thirty to thirty-five feet from the track he reduced his speed to seven or eight miles per hour. This would indicate to anyone seeing him that he was preparing to stop to let the train go by. Instead, when he was an estimated twelve to fifteen feet away he accelerated his speed and the collision occurred.
“When all of these facts are considered in connection with the rule that those in the engine of a train have the right to assume that a person approaching the track will reasonably exercise his senses of sight and hearing and act appropriately, it is evident that the engine crew of this particular train, prior to the time of applying the emergency brake, would have had no occasion to assume that danger of a collision was developing. Nothing calling for an effort to stop the train happened before the fireman called for the emergency stop.”

In the present case, as in Hynek, the collision occurred at a familiar city crossing, on a dark, wintry evening. Similarly, Richard reduced his speed as he approached the crossing, but accelerated upon seeing the train. With respect to lookout, Richard testified that at the time he looked and saw the train it was too late to attempt to stop. On the question of the train’s lookout, the fireman, who operated the train, testified that he first saw the Dombeck car when it was on the tracks and when the train was 30 feet from the crossing. At this time the emergency brakes had already been applied. There was also testimony that the engineer must have seen the Dombeck car when the train was 50 feet from the crossing because he at that point shouted, “Plug her!”

In view of the great similarities between Hynek and the present case, the court holds that there is no evidence of causal negligence with respect to lookout. Therefore, the trial court properly held that any failure of lookout on the part of the Railroad Company was not causal as a matter of law.

Failure to Submit to Jury Issue of Causal Negligence as to Train’s Speed.

Appellants Richard Dombeck and Integrity Mutual, in their motions after verdict, did not move for a new trial on the ground that the verdict should have contained questions inquiring as to whether the Railroad Company was causally negligent with respect to speed. Therefore they cannot raise such issue on this appeal. Wells v. Fairyland Mut. Ins. Co. (1957), 274 Wis. 505, 518, 80 N. W. (2d) 380; Huffman v. Reinke (1955), 268 Wis. 489, 491, 67 N. W. (2d) 871. However, appellant Russell Dombeck did move for a new trial on this ground and raises the issue on this appeal. While his son Richard’s negligence is imputed to him by sec. 343.15 (2), Stats., insofar as third parties such as the Railroad Company are concerned, a finding of causal negligence with respect to speed against the Railroad Company might have affected the jury’s answers to the two subdivisions of the comparative-negligence question where 50 percent of the aggregate causal negligence was apportioned to both Richard Dombeck and the Railroad Company. However, even if in such event the jury would have apportioned less than 50 percent of the aggregate causal negligence to Richard, a serious question would be presented whether his causal negligence was not at least 50 percent of the whole as a matter of law,' which, for the reasons hereinafter stated, we find unnecessary to decide.

The matter of railroad train speeds at grade crossings is in the exclusive jurisdiction of the public service commission. See sec. 192.29 (1), Stats. It is agreed that prior to the accident the commission had made no order setting a maximum speed for trains at the instant crossing. This statute in its present form, conferring such jurisdiction upon the commission to fix speed limits at grade crossings, was enacted in 1949. Prior to that enactment the statute itself fixed maximum speed limits at grade crossings in villages and cities. See sec. 192.29 (1) and (2), Stats. 1947. In the instant case the Railroad Company contends that in the absence of any order of the commission with respect to this crossing, no speed could be held negligent. While this contention has some merit we are of the opinion that there are at least two situations in which train speed at a grade crossing might constitute negligence even though the commission had made no order with respect to a particular crossing. One of these was pointed out in McLuckie v. Chicago, M., St. P. & P. R. Co. (1959), 5 Wis. (2d) 652, 657, 94 N. W. (2d) 182, where this court held that the peculiar or unusual circumstances there prevailing made it the duty of the railroad to conform its speed to standards of due care. In the instant case we doubt if the crossing presented such peculiar or unusual circumstances as to call for invoking the exception enunciated in McLuckie, but find it unnecessary to decide this point. Another situation in which a railroad company might be held guilty of negligent speed at a grade crossing, even though the commission had not established a speed limit for such crossing, was alluded to in Schulz v. Chicago, M., St. P. & P. R. Co. (1952), 260 Wis. 541, 549, 51 N. W. (2d) 542, where the railroad company had by its own rule established a speed limit for its trains which was violated.

The trainmaster testified that the maximum permissible speed established by defendant Railroad Company for a freight train was 40 miles per hour. While this is not in the company rule book it is governed by a timetable or train order. Although the great weight of the evidence is that the train was traveling at a speed of 35 to 40 miles per hour as it approached the crossing, plaintiff Beulah Dombeck testified it was then traveling at a speed of 65 miles per hour. She made this observation while standing in the doorway of the Dombeck home.

Notwithstanding the evidence as to speed we conclude that under the facts of this case, assuming that the speed of the train was negligent, such speed as a matter of law could not be causal. In order to be causal the train’s speed must either have misled Richard Dombeck, the driver of the car, or it must have interfered with the control and management of the train to the extent of rendering it probable that such control and management would have otherwise been effective to have avoided the collision. The evidence here excludes both of these hypotheses.

Richard’s testimony clearly excludes the. possibility that he was misled as to the speed of the train and that he attempted to cross in front of it on reliance that it was traveling at a lesser speed than it actually was. This is apparent from this verbatim extract taken from his testimony :

“Q. When you saw the train, what did you do then? Did you try to put on the brakes, or did you push on the accelerator? A. I pushed on the accelerator.
“Q. Trying to get across? A. To try to get across, yes.
“Q. The reason you did that, as I understand it, was because of the fact that you thought you couldn’t stop due to the weather a short distance at all? A. That’s right.
“Q. Because of the conditions of the highway? A. Yes.”

The foregoing clearly establishes that the reason Richard attempted to cross the track by accelerating instead of trying to stop was because he had concluded that he could not stop before reaching the track. Speed is not causal merely because the train arrived at the crossing the instant it did while if it had been going slower the car might have safely crossed ahead of it. See Baker v. Herman Mut. Ins. Co. (1962), 17 Wis. (2d) 597, 602, 117 N. W. (2d) 725, wherein this court declared:

“This court has never held that excessive or unlawful speed is causal merely because it places the vehicle at a particular place at a particular time. Excessive speed is causal, however, when it prevents or retards the operator, after seeing danger, from slowing down, stopping, or otherwise controlling the vehicle so as to avoid a collision.”

The second sentence of the above-quoted extract is apposite with respect to the question of whether, if the train had been traveling at 40 miles per hour instead of a speed up to 65 miles per hour as testified to by Mrs. Dombeck, the throwing on of the emergency brakes at the point where they were applied would have slowed down its speed sufficiently to have enabled the car to safely cross the track. Appellants point to the evidence that all but the rear two or three feet of the car had gotten across when struck by the locomotive. As previously herein pointed out there is no evidence upon which to base a reasonable inference that the engineer ought to have observed that the slow-moving Dombeck car was not going to stop for the crossing until he shouted to the fireman, at which time the front of the train was 50 feet from the crossing. Some allowance must be allocated to the fireman’s reaction time on hearing such shouted order before he could throw the emergency brakes into operation. As it was, the train traveled approximately 400 feet after the emergency brakes were applied before coming to a stop. The fireman testified he could not apply the emergency brakes within a third of a second. A vehicle traveling at 40 miles per hour travels at the rate of 59 feet per second. Thus at that speed the train would have traveled more than 20 of the 50 available feet to the crossing before the brakes could have been applied by the fireman. There is no evidence in the record that the application of the emergency brakes at a point 30 feet from the crossing would have reduced the train’s speed sufficiently to have avoided the collision. We think the probabilities are that it would not. In any .event a jury should not be permitted to speculate as to this. The situation is different with respect to the operation of automobiles where it can be assumed that jurors possess some knowledge of stopping distances and effectiveness of automobile brakes. This is not the situation with respect to the operation and stopping of trains.

Therefore, we conclude that the trial court did not err in failing to submit a jury question as to the train’s speed since the evidence could not support a finding that any such speed was causal.

Inclusion of a Finding as to Speed in Jury’s Answer to Comparative-negligence Question.

Appellants Richard Dombeck and Integrity Mutual contend they are entitled to a judgment against the Railroad Company on their cross complaint for contribution. Although no question with respect to the train’s speed was included in the verdict, the trial court did instruct the jury with respect thereto. Because of the latter, appellants ask this court to hold that the jury’s apportionment of 50 percent of the aggregate causal negligence to the Railroad Company can be sustained on the ground that the jury found that the Railroad Company was causally negligent with respect to speed. We find no merit to the contention that it must be assumed that the jury in answering the comparative-negligence question must have found that the train was being operated at an excessive speed and that such speed was causal. No such assumption can be made. Moreover, our determination that any negligence as to the train’s speed could not be causal would in any event prevent these appellants from prevailing on their cross complaint with respect to contribution.

Imputation of Son’s Negligence to Father in Action by Father Against Son.

The trial court denied appellant Russell Dombeck’s motion for judgment against defendants Richard Dombeck and Integrity Mutual on the ground that Richard’s negligence must be imputed to his father under the provision of sec. 343.15 (2), because the latter had sponsored Richard’s application for a driver’s license. This statute provides in part:

“Any negligence or wilful misconduct of a person under the age of 18 years when operating a motor vehicle upon the highways is imputed to the person who signed the application for such person’s license.”

The question of whether this statute is applicable to an action by the sponsoring parent against the minor whose driver’s license application was signed by the parent is one of first impression in this state. The Seventh circuit court of appeals, however, did pass on this identical question in Gilbertson v. De Long (7th Cir. 1962), 301 Fed. (2d) 284. By a split decision that court determined that no exception was to be read into the statute which would exclude its application to an action between sponsoring parent and child. The dissenting opinion asserted that the legislative purpose was to protect the public from damage caused by youthful drivers and not for the protection of such youthful drivers against liability for their own negligence.

Given the broad interpretation placed upon this statute by the majority opinion in the Gilbertson Case, a parent would be precluded from recovering for the tortious act of a child whose driver’s license the parent had sponsored where a principal-agent or joint-venture relationship existed. The general rule is that a principal may recover from his agent for loss or damage caused the principal by the negligent act of the agent. Restatement, 2 Agency (2d) p. 911, sec. 401; 3 Am. Jur. (2d) Agency, p. 583, sec. 202; 3 C. J. S., Agency, p. 46, sec. 162. The negligence of the agent will be imputed to the principal in an action by the latter against a third person, or by a third person against the principal. 38 Am. Jur., Negligence, p. 922, sec. 236. See also Restatement, 2 Torts, p. 1267 et seq., secs. 485, 486; Prosser, Law of Torts (2d ed.), p. 299, sec. 54. However, the negligence of the agent is not to be imputed to the principal in an action by the principal against the agent. Archer v. Chicago, M., St. P. & P. R. Co. (1934), 215 Wis. 509, 515, 255 N. W. 67, 95 A. L. R. 851; 8 Am. Jur. (2d) Automobiles and Highway Traffic, p. 223, sec. 672. Likewise, while the negligence of one of two joint venturers is imputed to the other in actions against third persons, there is no such imputation where the action is between the joint venturers themselves. Johnsen v. Pierce (1952), 262 Wis. 367, 373, 55 N. W. (2d) 394; Klas v. Fenske (1946), 248 Wis. 534, 544, 22 N. W. (2d) 596; Restatement, 2 Torts, p. 1273, sec. 491.

This court stated in Employers’ Mut. Fire Ins. Co. v. Haucke (1954), 267 Wis. 72, 75, 64 N. W. (2d) 426, that the legislative purpose of sec. 343.15 (2), Stats., is to “protect the public from damage caused by the negligent operation of vehicles by youthful drivers.” It accomplishes this purpose by imputing the negligence of the sponsored minor driver to the sponsoring parent, guardian, or employer, where without the statute such imputation would not result because of the lack of a principal-agent or joint-venture relationship. At the time of the enactment of sec. 343.15 (2), Stats., in 1941 (then numbered sec. 85.08 (9) (b)), the legislature probably gave no thought to a situation where a sponsoring parent might be suing the sponsored minor for damages caused the parent through the negligent operation of a motor vehicle by the sponsored minor. This is because of the then-prevailing rule in Wisconsin that a parent could not sue his unemancipated minor child in tort. See footnote 2, supra. However, a majority of this court considers it would work an unreasonable and absurd result if the statute were to be construed to abrogate, as between sponsoring parent, guardian, or employer and sponsored child, the rule that the negligence of an agent or joint venturer is not to be imputed to his principal or other joint venturer in an action between the parties. Thus we invoke the rule of statutory interpretation that a statute should not be construed to work an absurd result, even when the language seems clear and unambiguous. Connell v. Luck (1953), 264 Wis. 282, 58 N. W. (2d) 633; Laridaen v. Railway Express Agency, Inc. (1951), 259 Wis. 178, 47 N. W. (2d) 727; Pfingsten v. Pfingsten (1916), 164 Wis. 308, 159 N. W. 921.

In view of the foregoing, we determine that, with respect to appellant Russell Dombeck’s causes of action against defendants Richard Dombeck and Integrity Mutual, Richard’s negligence is not to be imputed to his father. This requires that that portion of the judgment which dismissed Russell Dombeck’s complaint against these defendants be reversed, and that the cause be remanded for the entry of a proper judgment awarding him judgment against such defendants for the damages awarded him by the verdict for medical and miscellaneous expenses incurred by him for the injuries to Carol, for the funeral expenses incurred by him for Gail, and for one half the damages awarded for the wrongful death of Gail, together with costs and disbursements.

By the Court. — That part of the judgment which dismissed plaintiff Russell Dombeck’s complaint against defendants Richard Dombeck and Integrity Mutual Insurance Company is reversed, and cause remanded for the entry of a judgment in behalf of this plaintiff against these defendants consistent with this opinion; in all other respects the judgment is affirmed.

       This statute provides, “Upon petition to the public service commission by the governing body of any city or village or by any railroad corporation alleging that any railroad crossing of one or more public highways or streets in such city or village is dangerous to human life and that public safety requires a designation of the maximum speed of a train over such crossing or crossings, or that an order previously made by the commission should be modified, the commission shall give notice to the parties in interest and order a hearing thereon in the manner provided by section 196.26. If, after such hearing, the commission shall determine that the crossing or crossings described in such petition are dangerous to human life, it may by order determine what maximum speed of a train over such crossing is reasonably required by public safety and is consistent with the public need for adequate and expeditious passenger and freight service by railroad, having due regard for other orders entered by the commission and to practical railroad operating conditions. Where the commission has so designated the maximum speed of any train or trains over such crossing or crossings, such rate of speed shall be the lawful maximum speed at which any train affected by such order can be operated over such public highway or street crossing, until changed by subsequent order of the commission. Every railroad corporation violating any order entered under this subsection shall for every violation forfeit to the state not less than $10 nor more than $100. The jurisdiction over train speeds hereby vested in the commission shall be exclusive, but any order entered by the commission hereunder shall be subject to judicial review in the manner provided by chapter 227.”

       The issue has not been raised on this appeal as to whether in view of Goller v. White (1963), 20 Wis. (2d) 402, 122 N. W. (2d) 193, a parent can now maintain an action against an unemancipated minor in Wisconsin for a tort committed prior to the decision in that case. The prior rule was that a suit could not be maintained by a parent in tort against an unemancipated minor. Wadoz v. United National Indemnity Co. (1957), 274 Wis. 383, 392, 80 N. W. (2d) 262; Fidelity Savings Bank v. Aulik (1948), 252 Wis. 602, 605, 32 N. W. (2d) 613. Because this issue is not before us on this appeal our opinion is not to be interpreted as having passed on the same by implication.


text:
    Western Casualty & Surety Company, Appellant, v. Industrial Commission and another, Respondents.

      June 4

    June 30, 1964.

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

    For the respondent Industrial Commission the cause was argued by Beatrice Lampert, assistant attorney general, with whom on the brief was George Thompson, attorney general.
   Currie, C. J.

The employee Orheim’s application for benefits was not filed until more than two years had elapsed after the date of injury, which was January 16, 1956. No workmen’s compensation benefits were paid by appellant insurance carrier within two years following the date of injury. Sec. 102.12, Stats. 1955, provided:

“No claim for compensation shall be maintained unless, within 30 days after the occurrence of the injury ... actual notice was received by the employer . . . Absence of notice shall not bar recovery if it is found that the employer was not misled thereby. Regardless of whether notice was received, if no payment of compensation ... is made, and no application is filed with the commission within 2 years from the date of the injury . . . the right to compensation therefor shall be barred, except that the right to compensation shall not be barred if employer knew or should have known within the 2-year period, that the employe had sustained the injury on which the claim is based. . . .” (Italics supplied.)

The examiner for the commission made a finding that notice of the accident was given to Orheim’s employer, Harold Woodbury, “at the time of the injury.” On review this finding was affirmed by the commission. It is implicit in such finding that the employer, having received notice of the accident contemporaneously with its occurrence on January 16, 1956, knew within the two-year statutory period that Orheim had sustained the injury on which his claim for benefits is based.

The sole issue on this appeal is whether there is any credible evidence to sustain this finding.

On the date of the injury Orheim was hauling milk by motor truck to a creamery in Rusk county for his employer Woodbury. Orheim was on a farm to pick up some milk and was pulling cans out of a cooling tank at about 10 a. m. when he bent over to pick up a full can of milk and something cracked in his back. Although his back hurt badly he then continued on his route picking up cans of milk from other farmers and arrived at the creamery around noon. What then transpired is best related by the following verbatim extract from Orheim’s testimony:

“Q. What did you do when you got to the creamery? A. I got Harold Woodbury to unload my load of milk for me.
"Q. And did you tell him anything about the injury at that time? A. Yes.
“Q. What did you tell him? A. I told him I hurt my back lifting a can of milk.
“Q. And then what did you do? A. I went home and went to bed.
“Q. That same day? A. Yes.”

Orheim then testified that he consulted a physician .the next day, was in the hospital for seven days, and did not return to work until April 3, 1956. Woodbury died prior to the hearing so there is no testimony by him.

In view of the foregoing we conclude that this record amply supports the commission’s finding. We find no merit to appellant’s contention that the above-related testimony of Orheim is insufficient because there is no proof that Woodbury heard what Orheim told him about the latter’s having hurt his back. It is a reasonable inference, if one person testifies that he told another person something, that such other person heard what was told him. The commission may ground its findings on reasonable inferences drawn from undisputed evidence in the record. Hipke v. Industrial Comm. (1952), 261 Wis. 226, 231, 52 N. W. (2d) 401; Scandrett v. Industrial Comm. (1940), 235 Wis. 1, 6, 291 N. W. 845.

Appellant relies on Van Domelon v. Industrial Comm. (1933), 212 Wis. 22, 249 N. W. 60, 92 A. L. R. 501, where it was held that mere knowledge by the employer town that an employee had become sick on the job did not constitute “actual notice of injury” within the meaning of sec. 102.12, Stats. 1927. That statute required that the injured employee give written notice of the injury to the employer within thirty days of the occurrence of the accident as a condition to recovering workmen’s compensation benefits, but contained this proviso :

“. . . provided, further, that the failure to give any such notice, or any defect or inaccuracy therein, shall not be a bar to recovery under sections 102.03 to 102.34, inclusive, if it is found as a fact in the proceedings for collection of the claim that within the thirty-day period actual notice of the injury was given to the employer . . .”

The explanation for the court’s holding in the Van Dome-Ion Case appears in these words of the opinion (p. 28) :

“No accident causing visible physical injury to plaintiff had occurred, and it does not appear that there were any objective symptoms, which could be considered indicative to any of the town’s officers or employees, during that thirty-day period, of the occurrence of any compensable injury to plaintiff. For all that the town or its officers or employees knew, plaintiff’s inability to continue with the work on January 9, 1929, might well have been due entirely to some internal disorder or disease, which was not caused by any injury.” (Emphasis supplied.)

In the instant case Orheim notified the employer Wood-bury, “I hurt my back lifting a can of milk.” Unlike the facts in Van Domelon this was clearly sufficient to apprise the employer that he had sustained an industrial accident arising out of and incidental to his employment. It further informed the employer of the nature of the injury for which an application for benefits was later filed.

By the Court. — Judgment affirmed.


author: Beilfuss, J.

text:
    Herchelroth, Plaintiff and Respondent, v. Mahar, Defendant: Marvin Belt, d/b/a Marvin Belt Company, Defendant and Respondent: Wolpin Company, Defendant and Appellant.

      June 2

    June 30, 1964.

      For the appellant there were briefs by Whyte, Hirschboeck, Minahan, Harding & Harland, attorneys, and Edward D. Cleveland of counsel, all of Milwaukee, and oral argument by Mr. Cleveland.

    For the plaintiff-respondent there was a brief by Ruppa & Wegner, attorneys, and Norman W. Wegner of counsel, all of Milwaukee, and oral argument by Nathan Ruppa.

    For the defendant-respondent there was a brief by Stanley F. Schellinger, attorney, and James G. Doyle of counsel, both of Milwaukee, and oral argument by Mr. Doyle.

   Beilfuss, J.

Does sec. 345.09 (.1), Stats., provide for substituted service on the nonresident corporate lessee of a motor vehicle ?

Sec. 345.09 (1), Stats., is the statute to be construed:

“The use and operation of a motor vehicle over the highways of this state by a nonresident is deemed an irrevocable appointment by such nonresident of the motor vehicle commissioner to be his true and lawful attorney upon whom may be served all legal processes in any action or proceeding against him or his executor, administrator or personal representative, growing out of the use or operation of the motor vehicle in this state and resulting in damage or loss to person or property, whether the damage or loss occurs on a highway or on abutting public or private property. Such appointment is binding upon the nonresident’s executor, administrator or personal representative. Such use or operation of a motor vehicle by such nonresident is a signification of his agreement that any such process or notice against him or his executor, administrator or personal representative which is so served shall be of the same legal force and validity as if served on him personally, or on his executor, administrator or personal representative.”

Appellant bases the argument that it is not subject to substituted service on two grounds. First, the phrase “use and operation” is restricted to actual physical manipulation. We are referred to sec. 340.01 (41), Stats., incorporated into ch. 345 by sec. 345.01, defining “operator” as “a person who drives or is in actual physical control of a vehicle.” Because the word “use” is not explicitly defined in the statute it is to be treated as surplusage under the canon of statutory construction that a statute in derogation of the common law is to be strictly construed.

Second, even if “use” means something different from “operation” the statute does not apply to corporations because it provides for service upon a nonresident or his executor, administrator, or personal representative without any reference to successors and assigns. We are referred to sec. 344.52, Stats., in which the words “successors and assigns” are included. The last-mentioned statute imposes liability on the foreign lessor of a motor vehicle in connection with a local accident.

Use and Operation.

Even without sec. 340.01 (41), Stats., the verb “operate” and its derivatives would probably connote personal manipulation. O’Tier v. Sell (1930), 252 N. Y. 400, 169 N. E. 624; Morrow v. Asher (D. C. Tex. 1932), 55 Fed. (2d) 365; Rose v. Gisi (1941), 139 Neb. 593, 298 N. W. 333. The problem thus becomes whether the legislature intended to subject nonresidents, corporations, or individuals, to substituted service when these persons owned or leased an automobile involved in an accident on Wisconsin highways, but were not personally operating it at the time of the accident.

Rose v. Gisi, supra, is very close to our case. In that case two employees of a nonresident truck owner were in the truck at the time of the accident. The employee authorized to drive was not driving; that job was being performed by an employee who was not authorized to drive. The Nebraska statute involved was substantially the same as ours except that it provided for personal service in any action or proceeding growing out of the use and operation of a motor vehicle by a nonresident or his agent. It was held that the nonresident owner was subject to service of process because the truck was being used on the Nebraska highways, in the furtherance of his business at his direction.

Appellant argues that the definition of the word “use” in the Rose Case was not necessary to the decision because the Nebraska statute expressly made a nonresident liable if his agent operated or used the vehicle. The defense raised was that the agent operating the vehicle was not acting within the scope of his employment. Because of the construction adopted it was not necessary for the Nebraska court to face foursquare the difficult problem of the extent to which doctrines of agency law were imported into the Nebraska service statute. The court also said that the employee authorized to drive was subject to service of process because he had general control of the truck and therefore was using it notwithstanding the fact that he was not operating it.

The predecessor of sec. 345.09 (1), Stats., was enacted by ch. 94, Laws of 1925. This was done before the decision of the United States supreme court in Hess v. Pawloski (1927), 274 U. S. 352, 47 Sup. Ct. 632, 71 L. Ed. 1091. It was evidently a legislative adventure in the never-never land of due process. See State ex rel. Cronkhite v. Belden (1927), 193 Wis. 145, 211 N. W. 916, 214 N. W. 460. This is the answer to plaintiff’s argument that the statute be strictly construed because it is in derogation of the common law. That canon is a rule of construction only, not a rule of law. It must yield to clear evidence of an intention on the part of the legislature to extend service of process to its ultimate constitutional limits.

The Failure to Extend Service to Successors and Assigns.

In State ex rel. Ledin v. Davison (1934), 216 Wis. 216, 256 N. W. 718, this court held that the predecessor of sec. 345.09, Stats., did not authorize substituted service on the administratrix of a deceased nonresident. Language was suggested which would make clear the legislature’s intention to authorize such service. Ch. 395, Laws of 1943, amended the statute according to the wording suggested in Ledin v. Davison, supra. The 1943 amendment in no way restricts the meaning of the statute as it existed prior to that time.

In State ex rel. Cronkhite v. Belden, supra, page 157, we inferentially recognized the application of the statute to corporations as well as private persons :

“While the power to regulate the conduct of the foreign motorist may constitutionally be made the basis of acquiring jurisdiction over his person, the law as a whole must be one reasonably calculated to give the defendant notice that the jurisdiction of a court of the licensing state has been invoked. In the case of foreign corporations, service on a duly authorized representative is service upon the principal, and if made in accordance with the law is legally equivalent to personal service upon the defendant.”

In our case, as in Rose v. Gisi, supra, the truck was being used on the highways of the state in the furtherance of the Wolpin Company’s business at its direction. This use subjected the corporate lessee to substituted service of process pursuant to sec. 345.09 (1), Stats., which applies to corporate lessees and owners as well as individuals.

By the Court. — Order affirmed.

Gordon, J., took no part.


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

      June 3

    June 30, 1964.

      For the plaintiff in error there was a brief by Runkel & Runkel of Port Washington, and oral argument by Paul D. Runkel.

    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were George Thompson, attorney general, and William A. Plats, assistant attorney general.

       Motion for rehearing denied, without costs, on September 11, 1964, Heffernan, J., not participating.

   Hallows, J.

Reversible error is claimed in admitting the confession of Pulaski in evidence because it was not the voluntary product of his free and unconstrained will. This confession related only to four of the seven burglaries, i.e those involved in counts 4, 5, 6, and 7. It is argued the confession was not voluntary because of the length of time Pulaski was questioned, the interrogations took place in a room 10 feet by 10 feet, he had little sleep until after 6 o’clock a. m. on the day he made the confession, nine different officers questioned him, the only food he had from the time of his arrest until his confession was a bologna sandwich and coffee at noon, that the police who questioned him were physically larger than he was, and Pulaski had only an eighth-grade education, and was not allowed to talk to fellow prisoners. It is also claimed Pulaski asked the police for an attorney, which request was refused, and he was struck, kicked, and physically mistreated by the Milwaukee police.

In State v. Hoyt (1964), 21 Wis. (2d) 284, 128 N. W. (2d) 645, on rehearing, we pointed out that a confession to be saved from constitutional condemnation must be the result of a deliberateness of choice. Pulaski’s confession seems to us to have been the product of his free and unconstrained will. It is not shown the interrogation even by several different police was of such constant duration as to affect Pulaski’s mind and force him to confess against his better judgment. The confession occurred some seventeen hours after his arrest but Pulaski was not continuously interrogated for that period of time. This court does not approve of lengthy, continuous interrogations of an accused and a deprivation of sleep to break an accused down and which results in a confession being virtually wrung out of the accused. We find no such facts here.

Pulaski was arrested late at night, taken to the police station for interrogation, taken to his rooming house, and again taken back to the jail and again interrogated. When the night shift left, he was allowed to rest. It does not appear he was given any breakfast or that he wanted any. It does not appear how long he was permitted to sleep before being questioned by the day-shift detectives and the Ozaukee county officers. However, while' being interrogated late in the afternoon with a stenographer present he confessed to four burglaries which the Milwaukee police were also interested in solving, and he was interrogated as to these; eventually over a period of months he confessed to some 23 or 24 burglaries in Milwaukee county. The interrogation of Pulaski strikes us under the circumstances as being a search for information in the process of investigation and not an attempt by the police to create written evidence for use against Pulaski at his trial.

We are not impressed in this case with the psychological factors relied on by Pulaski, namely, the room was only 10 feet by 10 feet, he was smaller in size than the policemen who interrogated him, he had but an eighth-grade education, and he had only a bologna sandwich and black coffee for lunch. Pulaski, a man of thirty-five years of age, had previous convictions and previous contacts with the police and the courts. This is not a case of the first offender as was the Hoyt Case but of a professional and a member of a ring or gang. Pulaski was not denied his right to talk to his counsel. He had no counsel and expected the police to furnish one upon his request. This, the police were under no duty to do. His physical treatment by the police was disputed in the testimony and both the trial court and the jury found against him. We accept their findings.

Of importance is the fact the confession of March 29th itself shows it to be “the voluntary product of a free and unconstrained will.” The exhibit is in question and answer form. Pulaski was willing to disclose certain burglaries, but he refused to state who his accomplices were and expressly told the police he would not implicate anyone else. It is plain he told the police just what he wanted to tell them and no more. As stated in Culombe v. Connecticut (1961), 367 U. S. 568, 576, 81 Sup. Ct. 1860, 6 L. Ed. (2d) 1037, “However, a confession made by a person in custody is not always the result of an overborne will. The police may be midwife to a declaration naturally born of remorse, or relief, or desperation, or calculation.” From what transpired later in the Milwaukee case, we believe the confession was a result of calculation which turned out to be a miscalculation from Pulaski’s standpoint. But risks are not unknown to men who pursue crime. Incidentally we point out there were six other confessions made on three subsequent days extending over two months which were admitted in evidence. Five of these confessions involved burglaries in Ozaukee county and no exception to their admissibility has been taken.

Pulaski contends the search of his dwelling was made without a search warrant and without his consent and the ring found was, therefore, erroneously received in evidence. The police testified in general terms that Pulaski was co-operative, led them to his room, and watched them make the search. Pulaski testified he did not consent and was taken to his dwelling in handcuffs. The trial court admitted the evidence for the reason Pulaski did not specifically object to the search.

Assuming the search was illegal and, therefore, the ring should not have been admitted in evidence, we consider the error to be harmless. The improper admission of evidence is not a ground for reversal unless the error affects a substantial right of the party. Sec. 274.37, Stats. Whether such harmless-error rule can be applied to the admissibility of evidence seized in an illegal search has not been decided by the United States supreme court. We see no reason why the statutory harmless-error rule should not apply to error founded on constitutional rights. Certainly not all violations of constitutional rights are prejudicial and require reversal. Nor does public policy demand the automatic reversal of a conviction because of a violation of a constitutional right in order to promote the recognition and the enforcement of such rights. It was pointed out by the minority of the court in Fahy v. Connecticut (1963), 375 U. S. 85, 94, 84 Sup. Ct. 229, 234, 11 L. Ed. (2d) 171, 177, that there is no necessary connection between the fact that evidence is unconstitutionally seized and the degree of harm caused by its admission because the question of harm turns not on the reasons for inadmissibility but on the effect of the evidence in the particular case. In People v. Parham (1963), 33 Cal. Rptr. 497, 384 Pac. (2d) 1001, the court made a distinction between an involuntary confession and other illegally obtained evidence and held a check obtained in violation of due process and improperly admitted in evidence was harmless error in the context of .the facts before it.

In this case it is true the illegal evidence is harmful and the error affects a substantial right so far as count 1 is concerned and if Pulaski were serving the sentence on that count alone it would require reversal and a new trial on that charge. However, in fact the error is harmless because Pulaski was found guilty on six other counts and was sentenced to identical terms on each of ten years to be served concurrently. Consequently, the conviction and sentence on count 1 does not prejudice Pulaski if he is properly serving concurrent sentences of the same duration on valid convictions on the other counts, which we believe he is. It has been held that when a defendant has been convicted on a number of counts and is given concurrent sentences of similar duration, there is no prejudice requiring a reversal for error if there is a valid conviction on any of the counts. Mueller v. State (1932), 208 Wis. 550, 243 N. W. 411; United States v. Trenton Potteries Co. (1927), 273 U. S. 392, 47 Sup. Ct. 377, 71 L. Ed. 700. See Hirabayashi v. United States (1943), 320 U. S. 81, 63 Sup. Ct. 1375, 87 L. Ed. 1774; United States v. Johnson (1943), 319 U. S. 503, 63 Sup. Ct. 1233, 87 L. Ed. 1546; 3 Am. Jur., Appeal and Error, p. 662, sec. 1149.

During the trial on 18 occasions while the jury was in the box there were proceedings between counsel and the court off the record. This is an undesirable practice in the presence of the jury because the record does not show what the jury presumably heard and this court does not have a complete record before it. If a matter is to be heard off the record, it should be outside the hearing of the jury. However, in this case we find no reversible error because Pulaski’s trial counsel testified at the hearing on the motion for new trial that nothing was said off the record which called for an objection on his part and if there had been he could have made such an objection on the record. We must assume the omitted matter was not proof or prejudicial to Pulaski.

Pulaski argues the trial court made remarks in the presence of the jury which prejudiced his rights. Several of these remarks had to do with controlling the unnecessary repetition of testimony. In several instances the court differed with counsel over previous testimony. In one instance the court in referring to the testimony of a detective stated the man held a responsible position and the court was inclined to say he was telling the truth. Some of the remarks, no doubt, indicate an impatience with the method of examination by the defense counsel. In a jury trial, a trial judge must be ever careful not by word or action to unconsciously influence the jury or to convey any impression contrary to his impartial status. While we cannot approve the trial court’s arguing with counsel over what the testimony showed or commenting on the veracity of a witness before a jury, we cannot find these isolated remarks in view of the whole testimony and the instructions on the weight and credit to be given to witnesses had any prejudicial effect on the jury or denied Pulaski of his constitutional right to a fair and impartial trial.

The last contention of Pulaski is that his rights were prejudiced by an altercation between witnesses in the presence of the jury while the trial judge and the attorneys were absent from the courtroom. During the trial while the judge and the attorneys were conferring in chambers and the jury was in the box, a state and a defense witness engaged in a loud and heated argument of several minutes duration. There is testimony that during the argument a police officer who testified for the state called the defense witness a “liar” and “one of the Kopacka gang.” Other testimony is to the effect that this defense witness called the police officer a liar. The foreman of the jury testified, in effect, that the argument lasted only a minute or two while the members of the jury were conversing with each other and there was other loud talking in the courtroom. He also testified nothing he heard influenced him in his decision. No other member of the jury testified.

It would seem the general effect of this altercation was a witness for the state and one for Pulaski were in disagreement over certain facts. This, of course, was apparent from their testimony on the stand. We point out in criminal trials police officers who are actively engaged in the prosecution as part of their official duties may not by their activities and attitude indicate a partisan interest in the outcome of the case. Their conduct so far as it relates to a question of prejudicial effect on the jury must be considered as conduct of the prosecution. Surma v. State (1951), 260 Wis. 510, 51 N. W. (2d) 47. However, we do not find on the record before us that Pulaski was prejudiced by the altercation.

By the Court. — Order affirmed.


author: Fairchild, J.

text:
    Flambeau Plastics Corporation, Respondent, v. King Bee Manufacturing Company, Appellant.

      June 3

    June 30, 1964.

      For the appellant there was a brief by Hill, Miller & Quale of Baraboo, and oral argument by James H. Hill, Jr.

    For the respondent there was a brief by Langer, Cross & Langer, attorneys, and Howard F. Smiley of counsel, all of Baraboo, and oral argument by Clyde C. Cross.

   Fairchild, J.

Sec. 262.05, Stats., lists the situations in which a court of this state has jurisdiction over a person served in an action pursuant to sec. 262.06. Sec. 262.06 provides that a court of this state which has grounds for personal jurisdiction under sec. 262.05 may exercise it by service of summons in a manner specified in sec. 262.06.

Sec. 262.06 (5), Stats., authorizes service upon a corporation outside the state, as appears to have been done in this case. Thus the question is whether grounds for personal jurisdiction exist under sec. 262.05. Defendant raises no constitutional objections, but contends that there are no grounds for personal jurisdiction as set forth in the statute.

The following facts appear in the complaint:

Plaintiff is a Wisconsin corporation engaged in the business of manufacturing plastic goods at Baraboo, Wisconsin. Defendant is an Illinois corporation with plant and office in that state. By correspondence in the first quarter of 1961, plaintiff and defendant entered into a contract by which the defendant agreed to purchase from plaintiff one million clearance light assemblies at $.089 per set, for a total price of $89,000. The items were to be delivered at such times and in such quantities as defendant should direct within fifteen months. The items were to be manufactured in Baraboo, terms f.o.b. Baraboo or Milwaukee, and payment was to be made by defendant at plaintiff’s Baraboo office. Defendant placed orders for a total of 37,569 sets. Plaintiff filled each order and defendant paid for the sets. Defendant failed to place any further orders. As part of its obligations under the contract, plaintiff provided three molds for the manufacture of the sets; the parties agreed that out of the total contract price of $89,000, $16,700 was for the cost of the molds and that of the unit price of $.089, 1.67 cents was to be allocated to mold amortization. At the end of the fifteen-month period plaintiff, “foregoing its cause of action against defendant for its loss of profits” on the sets not ordered, billed defendant for the remaining portion of the mold cost amortization, or $16,072.60. Defendant acknowledged its indebtedness to plaintiff in that amount and made payments totaling $900. Plaintiff brought this action for the balance of $15,172.60 plus interest.

Sec. 262.05 (1) (d), Stats., provides that a court of this state has jurisdiction over a person served,

• “ (1) In any action whether arising within or without this state, against a defendant who when the action is commenced :
“Is engaged in substantial and not isolated activities within this state, whether such activities are wholly interstate, intrastate, or otherwise.”

Plaintiff apparently concedes for the purpose of this appeal that defendant has not been engaged in activities in Wisconsin except as alleged in the complaint, but argues that defendant’s action in entering into the contract alleged, with a Wisconsin resident and to be performed in Wisconsin, gave defendant a sufficient local status to subject it to personal jurisdiction of a Wisconsin court under sec. 262.05 (1) (d), Stats. Because of the conclusion we reach on other points, it is unnecessary to decide this one. We pass it by, except to express some doubt whether the dealings alleged gave defendant sufficient contact with Wisconsin to be a foundation for personal jurisdiction in an action totally unrelated to the transactions alleged, even if the action were commenced while the transactions alleged could reasonably be said to be continuing.

Plaintiff further contends that the nature of the action as it appears from the allegations of the complaint, falls within one or more of the grounds of personal jurisdiction set forth in sec. 262.05 (5) (a), (b), and (c), Stats.

Sec. 262.05 (5), Stats., provides that a court has jurisdiction over a person served,

“ ( 5 ) In any action which:
“(a) Arises out of a promise, made anywhere to the plaintiff ... by the defendant ... to pay for services to be performed in this state by the plaintiff; or
“(b) Arises out of . . . services actually performed for the defendant by the plaintiff within this state if such performance within this state was authorized or ratified by the defendant; or
“(c) Arises out of a promise, made anywhere to the plaintiff ... by the defendant to . . . receive within this state . . . goods, documents of title, or other things of value;

Sec. 262.05, Stats., entitled, “Personal jurisdiction, grounds for generally” was enacted as part of ch. 226, Laws of 1959, effective July 1, 1960. It is the result of a long and detailed study of the constitutional concepts of jurisdiction over the person and “doing business” by Professor G. W. Foster, Jr., of the University of Wisconsin Law School. Professor Foster’s revision notes make it clear that the statute was intended to provide for the exercise of jurisdiction over nonresident defendants to the full extent consistent with the requisites of due process of law. The statute is divided between general contacts with Wisconsin and actions arising out of specific contacts with this state. With respect to the latter, Professor Foster stated (pp. 22, 23) :

“The principal modern developments in state judicial jurisdiction over persons (both individual and corporate) have veered sharply away from the grounds of presence and consent, and the new grounds depend importantly upon the relation between the state and the particular litigation sued upon. Importance attaches to what, with respect to the action brought, the defendant has caused to be done in the forum state.
“From this it is evident that contacts of various kinds may have a quality sufficient to satisfy due process. Subs. (3) through (10) rely upon a wide variety of contacts in defining the grounds for the exercise of personal jurisdiction. These grounds are stated in terms of specific kinds of actions in which the defendant’s contacts with the state make it reasonable to require him to stand trial within the state in the case described.”

Sec. 262.05 (5), Stats., is entitled, “Local services, goods or contracts.” Professor Foster commented, in part (pp. 23, 28) :

“In the second situation there is some degree of consensual privity between the plaintiff and defendant with respect to the action brought. In these cases it is not necessary that the defendant have done any act within the state; the basis for personal jurisdiction is rather that the defendant has entered some consensual agreement with the plaintiff which contemplates a substantial contact in Wisconsin. The contemplated contact may include performance of services in the state by either party, the production, use or consumption of goods within the state, . . .
“Three jurisdictional facts are required by this subsection: (i) a claim arising out of a bargaining arrangement made with the defendant by or on behalf of the plaintiff; (ii) a promise or other act of the defendant, made or performed anywhere, which evidences the bargaining arrangement sued upon; and (iii) a showing that the arrangement itself involves or contemplates some substantial connection with the state. The existence of a contract between the parties is not a jurisdictional fact, but a question to be decided on the merits if the jurisdictional facts are found to exist. No other contacts than those stated are required; an isolated bargaining arrangement giving rise to the action brought is a sufficient basis for jurisdiction. Nor, when jurisdiction is grounded on subs. (5) (a) or (c), is it material that the arrangement remains executory.
“Various types of bargaining arrangements are dealt with in the subsection. Arrangements for the performance of services within the state by either party for the other are dealt with in subs. (5) (a) and (b). Arrangements under which either party is to deliver or receive possession of goods within the state are dealt with in subs. (5) (c). Actions arising out of defects in goods actually received in or shipped from the state by either party are the subject of subs. (5) (d) and (e).
“In summary actions arising out of isolated bargaining transactions have been regarded as supporting the exercise of personal jurisdiction in numerous situations where the transactions involved, or contemplated, some substantial contact with the forum state. Among the contacts thought sufficient are: agreements under which either party promised to perform services in the forum; agreements either to take delivery in the state of goods from the plaintiff, or to deliver goods to the plaintiff in the state; and agreements under which the plaintiff took delivery of goods f.o.b. the defendant’s place of business outside the state, but under circumstances in which the defendant had reason to know the plaintiff would use or consume the goods in the forum state.”

Plaintiff contends that because the contract price of the assemblies was f.o.b. Baraboo or Milwaukee, and because the molds became defendant’s property, to be turned over upon full payment, the contract included a promise by defendant to receive goods in Wisconsin, and, accordingly, grounds for personal jurisdiction existed, as described by par. (c) of sec. 262.05 (5), Stats. We need not decide whether par. (c) is applicable to the situation before us because we conclude that grounds exist as described in both par. (a) and par. (b).

In our opinion, the action set forth in the complaint arises out of a promise by defendant to pay for services to be performed by plaintiff in Wisconsin, and, thus, that par. ■ (a) of sec. 262.05 (5), Stats., describes a ground for personal jurisdiction. It is immaterial that plaintiff, either voluntarily, or by subsequent agreement, is seeking recovery only for the unpaid and unamortized cost of the molds which it produced in order to perform the contract. For the purpose of measuring the extent of defendant’s contact with Wisconsin, its alleged obligation to pay part of the cost of the molds “arises” out of the original promise to pay for one million plastic assemblies. It is also immaterial that the contract required payment upon delivery of finished goods, since it is alleged that the parties contemplated that the goods to be purchased would be produced by plaintiff’s manufacturing efforts in Wisconsin. In the light of the purposes of the statute, a promise to pay for goods to be manufactured by the seller in Wisconsin must be deemed a promise to pay for the services of the seller as well as the transfer of the finished product.

We conclude also, that the action set forth in the complaint arises out of services actually performed in Wisconsin by plaintiff for defendant. It appears from the complaint that the molds were made by plaintiff for the production of the plastic assemblies and would be the property of defendant. Because the recovery sought is the unpaid and un-amortized portion of the cost of the molds, the action must likewise be said to arise out of services actually performed within this state by plaintiff for defendant and with defendant’s authorization. Thus par. (b) of sec. 262.05 (5), Stats., also describes a ground of personal jurisdiction applicable to this action.

The circuit court properly overruled the demurrer. It gave defendant ten days in which to answer, and that period must now run from the date this record is returned to the circuit court.

By the Court. — Order modified so that the ten-day period for defendant’s answer will run from the date this record is returned to the circuit court and, as so modified, affirmed.

       Reprinted in the pocket part of 30 W. S. A., pp. 21-34, sec. 262.05. These notes originally appeared in the draft of the statute published by the Judicial Council in 1959.