author: Currie, C. J.

text:
    Ramaker and others, Plaintiffs and Respondents, v. Cities Service Oil Company, Defendant and Appellant: Theuerkauf, Defendant.

      March 2

    March 30, 1965.

      For the appellant there were briefs by Hanley, Wedemeyer & Cavanaugh, attorneys, and John M. Hanley and Robert F. Cavanaugh of counsel, all of Milwaukee, and oral argument by Robert F. Cavanaugh.

    For the respondents there was a brief by Grootemaat, Cook & Franke, attorneys, and John J. Ottusch of counsel, all of Milwaukee, and oral argument by Mr. Ottusch.

       Motion for rehearing denied, with costs, on June 1,1965.

   Currie, C. J.

The three questions presented by this appeal are :

(1) What is the zoning regulation of the south 60 feet of Cities Service’s premises ?

(2) Do defendants’ activities on these south 60 feet constitute a zoning-ordinance violation ?

(3) If question No. 2 is answered in the affirmative, have any of the plaintiffs sustained injury by reason of defendants’ illegal activities sufficient to entitle them to the permanent injunction entered by the circuit court?

Applicable Zoning Regulations.

If only the uses permitted under Milwaukee zoning ordinances for “Parking Districts” are applicable to the south 60 feet, such uses are those specified in sec. 16-7.3 of the City of Milwaukee Code as follows:

“In a parking district, ’no building, structure, or premises shall be used which is arranged, intended, or designed to be used for an occupancy or use other than that specified herein.
“1. In a parking district, a premises may be used for . . . parking ... of private noncommercial motor vehicles except that commercial vehicles with a rated capacity not exceeding one and one-half tons may be permitted to park on a parking lot . . . provided for customer use, . . .
“2. The development and maintenance of the premises for the . . . parking of motor vehicles shall be in compliance with the following regulations: ....
“h. Parking lots shall not be used for automobile repair work or servicing of any kind other than that which may be legally performed upon a public street; or for the sale, display, demonstration or advertising of merchandise or service of any kind; or for the dead storage of motor vehicles . . . above the ground or by placing a ‘For Sale’ sign on such motor vehicles.”

During the course of trial defendants introduced in evidence a certified copy of Ordinance No. 58 of the city of Milwaukee enacted June 8, 1925, which amended the city’s zoning ordinance. Among other things, Ordinance No. 58 provided:

“Where a district boundary line divides a lot in single ownership at the time of the passage of this chapter, the regulations for either portion of such lot may extend to the entire lot, but not more than 50 feet beyond the boundary line of the district for which such regulations are established.”

Cities Service asserts that this provision was in effect in 1931, when a building permit was issued for the erection of the filling station, which had the effect of changing the north 50 of the south 60 feet of the premises into a “Local Business” use district.

Ordinance No. 58 purported to amend sec. 9-24 of the then existing zoning ordinance. As used in sec. 9-24, “lot” was defined as follows:

“A lot is a parcel of land in single ownership occupied by not more than one building and the accessory buildings or uses customarily incident to it including such open spaces as are required by this chapter. . . .”

In 1931, when the first filling station was erected, a two-story residence stood to the rear which was then occupied and remained until torn down in 1956. Thus there were two buildings on the premises, the filling-station building and the house, neither of which was accessory to the other. Therefore, it would seem that the premises failed to meet the above-quoted definition of “lot.” However, we find it unnecessary to decide this point because of the effect we accord to the 1958 amendment to the zoning ordinance.

Cities Service also claims that the building permit issued in 1942 recognized a use of the south 60 feet of the premises which was inconsistent with this portion being zoned a residence-use district. The answer to this is that a building inspector cannot change a zoning-use district by issuing a permit in violation of a zoning ordinance. Actually the 1931 and 1942 permits did not violate the zoning ordinance although the applications for the permits indicated the owner’s intent to put to an illegal use an adjoining portion of the land not occupied by the building covered by the permit.

There was evidence that for a few years prior to the tearing down of the two-story residence in 1956 some repairing of automobiles had been done commercially in a coach house appurtenant to the residence and located on the south 60 feet of the premises. These repair operations were begun long after the zoning ordinance had been enacted at a time when that portion of the premises was included in a residence-use district. Thus these repair operations constituted an illegal nonconforming use upon which Cities Service can predicate no right. Wilson v. Kunstmann (1959), 7 Wis. (2d) 387, 96 N. W. (2d) 709; David A. Ulrich, Inc., v. Saukville (1959), 7 Wis. (2d) 173, 96 N. W. (2d) 612.

Cities Service also introduced in evidence a certified copy of Ordinance No. 35 enacted May 10, 1915, relating to business sections and fire-district lines. This ordinance has nothing to do with zoning since it had been enacted five years prior to the 1920 zoning ordinance, and, therefore, it has no materiality on the use-district zoning of the south 60 feet of the instant premises.

We further determine that the effect of the 1958 amendment of the zoning ordinance whereby the south 60 feet were changed to a “Parking District” use, which change was made at Cities Service’s request, is to restrict the use that can be made of these 60 feet to that permissible in a “Parking District.” Cities Service argues against this result by asserting that, in securing this amendment, it did not intend to waive any rights it already possessed to make a different use of these 60 feet than would be permitted in a “Parking District.” However, we fail to perceive how the issue of waiver is material. Having secured the change it requested in the zoning law, it is bound thereby.

For the reasons stated, we conclude that the uses to which Cities Service may put the south 60 feet of its premises are restricted to those permitted in a “Parking District” as set forth in the previously quoted provisions of the city zoning ordinance relating to permissible uses in such a district.

Zoning Violation by Defendants.

We come now to the issue of whether defendants’ activities on the south 60 feet of Cities Service’s premises violate the zoning-ordinance restrictions applicable to a parking district. In passing on this issue we deem it essential to consider the objective for creating a parking-district-use classification. Obviously it is to provide an area where motorists may park their automobiles while at work, shopping, attending places of entertainment, or ministering to other needs. With our burgeoning population and constantly increasing number of motor vehicles, providing adequate parking space in metropolitan areas presents a serious problem. The queues of automobiles formed to enter the south entrance of the auto laundry pre-empt the parking space available on this south 60 feet and prevent its use for parking purposes. These queues of cars are an integral part of a car laundry which is not a permissible use in a parking district. The circuit court properly held that defendants’ operations within the portion of Cities Service’s premises so zoned constitutes a zoning-ordinance violation.

Cities Service points to the fact that, if the south 60 feet of its premises were to be devoted to use as a parking lot, of necessity there would be movement of cars on the premises in entering, parking, and leaving. Thus it is argued that the moving queues of cars into the auto laundry entails a similar movement of cars. The fallacy of this argument is that in one instance the car movement is incidental to an authorized use while in the other it is incidental to an illegal use.

.Cities Service also attempts to justify defendants’ operations on the south 60 feet by paragraph (1) of sec. 16-7.3 of the city zoning ordinances, which provides:

“Parking lots shall not be used for automobile repair work or servicing of any kind other than that which may be legally performed on a public street; ...”

Because a car owner might clean or wash his car on a public street, or line up on a street to get into an auto laundry, it is contended that the above-quoted provision of the ordinance extends the same uses to land zoned as a parking district. The quoted language is not subject to such a strained interpretation. Obviously it was aimed at preventing a parking lot from being used as an auto repair shop. By permitting those repair and servicing activities which might be legally performed on a public street, the ordinance prohibits all but emergency repair and servicing in a parking district. Nothing beyond this is to be read into the ordinance language by implication.

Injury to Plaintiffs.

The last point raised by Cities Service is that none of the plaintiffs sustained damage because of defendants’ operations on the south 60 feet, which is sufficient to support the permanent injunction which was entered.

Plaintiff Ramaker resides with her sister on the west side of North Twenty-Fifth street, across the street from the Cities Service premises and can see the south 60 feet thereof from her home. Plaintiff Kupper owns the property immediately to the south of the Cities Service premises. In their testimony they testified to the disturbing noise generated by defendants’ operations on the south 60 feet of the latter premises. Sometimes operations of the car wash extend to nine o’clock at night and on Sundays to two o’clock in the afternoon. In contrast, before the erection of the auto laundry, when such 60 feet were used for parking, there were no disturbing noises.

The trial court found as a fact that the illegal activities on the parking district have decreased the enjoyment of the Ramaker and Kupper homes. The night lighting and the additional noise generated on the parking district fully support this finding. There are also esthetic considerations which are very important to respondents in the enjoyment of their homes. This is a residence area with flats, apartment buildings, and churches. A filling-station parking lot, particularly if operated by good housekeepers, would not be a source of irritation. Instead, plaintiffs now must look out upon the jumble of activity created by movement of cars and workmen over the parking district and steam cleaning at the south door of the auto laundry.

Plaintiff, The Markdale Corporation, is the owner of a nearby apartment building. The circuit court found that there was no probative evidence presented that defendants’ operations had decreased the value of its premises, and thus the injunction was grounded upon the injury sustained by the other two plaintiffs.

Sec. 62.23 (7) (f) 2, Stats., provides:

“In case any . . . land is . . . used in violation of this section or of any ordinance or other regulation made under authority conferred hereby, the proper authorities of the city, or any adjacent or neighboring property owner who would be specially damaged by such violation may, in addition to other remedies, institute appropriate action or proceedings to prevent such unlawful . . . use; to restrain, correct or abate such violation; ... or to prevent any illegal act, conduct, business or use in or about such premises.”'

Thus we are dealing here with an injunction specially authorized by statute. Special damage to adjacent or neighboring property owners resulting from a particular zoning-ordinance violation provides the statutory ground for issuance of an injunction to restrain the illegal use. There may be situations where because of laches or estoppel a court of equity will be justified in denying an injunction at the suit of private parties, but any element of laches or es-toppel is completely lacking here. Decisions of this court in which zoning violations have been enjoined in actions instituted by adjacent or neighboring property owners are: Holzbauer v. Ritter (1924), 184 Wis. 35, 198 N. W. 852; Bouchard v. Zetley (1928), 196 Wis. 635, 220 N. W. 209,

The finding by the circuit court, that defendants’ illegal activities have decreased the enjoyment of the homes of plaintiffs Ramaker and Kupper, is not against the great weight and clear preponderance of the evidence. This finding establishes that these two plaintiffs have been specially damaged within the meaning of sec. 62.23 (7) (f) 2, Stats., and affords an adequate basis for the granting of the permanent injunction.

By the Court. — Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    State ex rel. Markdale Corporation and another, Appellants, v. Board of Appeals of City of Milwaukee, Defendant and Respondent: Cities Service Oil Company, Intervened Defendant and Respondent.

      March 2

    March 30, 1965.

      For the appellants there were briefs by Grootemaat, Cook & Franke, attorneys, and John J. Ottusch of counsel, all of Milwaukee, and oral argument by Mr. Ottusch.

    For the respondent Board of Appeals of the city of Milwaukee there was a brief by John J. Fleming, city attorney, and Cornelius J. Merten, assistant city attorney, and oral argument by Mr. Merten.

      For the respondent Cities Service Oil Company there was a brief by Hanley, Wedemeyer & Cavanaugh, attorneys, and John M. Hanley and Robert F. Cavanaugh of counsel, all of Milwaukee, and oral argument by Robert F. Cavanaugh.

       Motion for rehearing denied, with costs, on June 1, 1965.

   Currie, C. J.

While other issues are raised in the briefs, we deem the following two are determinative of this appeal :

(1) Does self-created hardship afford a sufficient statutory basis for a board of zoning appeals granting a variance ?

(2) Do the facts in the instant case establish beyond dispute that the hardship relied upon for the variance was self-created ?

Sec. 62.23 (7) (e) 7, Stats., provides in part as follows:

“The board of appeals shall have the following powers: ... to authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where, owing to special conditions, a literal enforcement of the provisions of the ordinance will result in practical difficulty or unnecessary hardship, so that the spirit of the ordinance shall be observed, public safety and welfare secured, and substantial justice done.”

Provisions similar to the above are common in zoning statutes and ordinances. Deardorf v. Board of Adjustment, etc. (1962), 254 Iowa 380, 384, 118 N. W. (2d) 78; Anno. 58 A. L. R. (2d) 1083, 1102, III A. sec. 6 and footnote 21. Apparently this court has not previously been called upon to pass on the issue of whether the “hardship” referred to in this statute can embrace one which is self-created. However, the authorities are practically unanimous to the effect that a hardship which has been self-created by the act of the property owner does not qualify as a hardship from which a board of appeals can grant relief by granting a variance. Booe v. Zoning Board of Appeals (1964), 151 Conn. 681, 202 Atl. (2d) 245; Misuk v. Zoning Board of Appeals (1952), 138 Conn. 477, 86 Atl. (2d) 180; Board of Zoning Appeals v. Waskelo (1960), 240 Ind. 594, 168 N. E. (2d) 72; Selligman v. Von Allmen Brothers (1944), 297 Ky. 121, 179 S. W. (2d) 207; Newcomb v. Teske (1948), 225 Minn. 223, 30 N. W. (2d) 354; Doull v. Wohlschlager (1963), 141 Mont. 354, 377 Pac. (2d) 758; Leimann v. Board of Adjustment (1952), 9 N. J. 336, 88 Atl. (2d) 337; In re Pierce’s Appeal (Okla. 1959), 347 Pac. (2d) 790; Kovacs v. Ross Township Board of Adjustment (1953), 173 Pa. Super. 66, 95 Atl. (2d) 350, cited with approval in Riccardi v. Plymouth Township Board of Adjustment (1958), 393 Pa. 337, 142 Atl. (2d) 289; 2 Rathkopf, Law of Zoning and Planning, sec. 48-1; 1 Yokley, Zoning Law and Practice, p. 334, sec. 137; 58 Am. Jur., Zoning, p. 1053, sec. 208; 101 C. J. S., Zoning, p. 1072, sec. 292; Anno. 168 A. L. R. 13, 33, II, b, 2 (d).

The rationale for this rule has been stated by one authority as follows:

“But the courts have likewise been emphatic in saying that the hardship must be one of necessary character. Under the ancient but well founded equitable maxim that no one should be allowed to take advantage of his own wrongdoing, the courts have uniformly held that where the hardship was created by the applicant’s own acts, he is not entitled to relief. He has no right to ask the appeal board to pull his chestnuts out of the fire.” 1 Yokley, Zoning Law and Practice, p. 334, sec. 137.

This may be stating the reason for the rule too narrowly gince self-created hardship which will bar the granting of a variance may consist of affirmative action in ignorance of existing zoning restrictions or upon a misinterpretation thereof.

The hardship here arises from the present position of the auto-laundry building with its south wall but one foot removed from the north line of the south 60 feet of the premises which are zoned as a parking district. This building was erected by Cities Service in violation of law in that no valid building permit was ever issued for its construction. The building permit which was issued February 2, 1961, was contested by appeal to the board, and eventually held invalid. In spite of such pending appeal Cities Service proceeded with construction. In so doing it took whatever chances would result if the appeal were decided adversely to its agent or joint venturer, Modern Car Wash. We pointed out in the prior appeal of State ex rel. Cities Service Oil Co. v. Board of Appeals (1963), 21 Wis. (2d) 516, 531, 124 N. W. (2d) 809, that once Cities Service received notice of the appeal it proceeded at its peril in incurring expenditures in reliance on the permit.

The Connecticut case of Misuk v. Zoning Board of Appeals, supra, is directly in point. There the property owners started construction without a required building permit. They then obtained a variance from the board of appeals, and continued with construction in reckless disregard of an appeal from the variance. The court held that the variance could not be sustained on the ground of hardship because the hardship was occasioned solely by the property owners’ reckless conduct. See also, Appeal of Julian (1960), 53 Del. 175, 167 Atl. (2d) 21; Wilkins v. San Bernardino (1946), 29 Cal. (2d) 332, 175 Pac. (2d) 542.

The only excuse advanced by Cities Service for the starting and completing of construction of the building was that the building permit of February 2, 1961, was not effective if construction was not commenced within six months from date of issue. Such an excuse is so lacking in merit that it does not warrant comment.

Cities Service, also points out that on April 28, 1961, while the appeal from the building permit was pending, the zoning ordinance was amended so as to only prohibit from a local-business-use district an automobile laundry which employed a mechanical conveyor system. Thus, when Cities Service abandoned the contemplated installation of a conveyor system, the building as actually completed did not violate the ordinance. Nevertheless, the building had been erected in violation of law because no valid building permit had been procured.

Furthermore, Cities Service had at least constructive notice as early as August 1, 1961, that the south 60 feet of their premises could not be used as part of the auto-laundry operation. A written brief was then served on counsel for Modern Car Wash in the appeal pending before the board from the building permit which stated:

“Examination of the exhibits and the testimony of witness Berggren discloses that they [Modern Car Wash] intend to have cars proceed throughout the entire southerly 60 ft. of said premises as an integral part of their car washing operation. In fact, they admitted the only way in which cars can get into the car washing building and be hooked up to the track and pulled through the car wash building is by traversing the southerly 60 ft. of the premises.
“This ordinance prohibits any use other than parking in these south 60 ft. Respondents do not contemplate parking in this area but intend to make use of this south 60 ft. as an integral part of their car wash operation. The ordinance cited allows only parking of private non-commercial vehicles in said southerly 60 ft. What Respondents intend to do cannot by any stretch of the imagination be called parking in this area. There is no dispute on these facts or the ordinance.”

On the prior appeal in State ex rel. Cities Service Oil Co. v. Board of Appeals, supra, at page 533, we held that, with respect to all proceedings relating to the February 2, 1961, building permit, a relationship of agency or joint venture existed between Cities Service and Modern Car Wash. Thus notice to Modern Car Wash was notice to Cities Service. However, it is entirely immaterial whether Cities Service was entirely ignorant of the fact that its contemplated use of the south 60 feet of its premises to route cars into the auto laundry would constitute a zoning-ordinance violation. It was chargeable with knowledge of the provisions of the ordinance. The hardship to support a variance cannot arise from a condition which Cities Service created in ignorance of zoning regulations. In re Pierce’s Appeal, supra; Sherwood Realty Corp. v. Feriola (1948), 193 Misc. 194, 82 N. Y. Supp. (2d) 505; Dolan v. De Capua (1954), 16 N. J. 599, 109 Atl. (2d) 615.

As the Connecticut court stated in the recent case of Booe v. Zoning Board of Appeals, supra (202 Atl. (2d) at p.246):

“We have repeatedly held that the hardship which justifies a board of appeals in granting a variance must be one which originates in the zoning ordinance. When the claimed hardship arises because of the actions of the applicant, the board is without power to grant a variance.”

In the instant case, prior to the erection of the auto-laundry building, the zoning ordinance imposed no hardship upon Cities Service. It was enabled under the ordinance to operate a filling station on the north 150 feet of the premises and a parking lot on the south 60 feet.

A note entitled, “Zoning Variances,” 74 Harvard Law Review (1961), 1396, 1401, suggests the following definition of “unnecessary hardship” as used in zoning statutes and ordinances with respect to the power of appeal boards to grant variances:

“Since the main purpose of allowing variances is to prevent land from being rendered useless, 'unnecessary hardship’ can best be defined as a situation where in the absence of a variance no feasible use can be made of the land.”

The hardship claimed here does not arise because the zoning of the south 60 feet has prevented its use for any profitable purpose. It is solely due to Cities Service having erected a building which cannot be used advantageously as an auto laundry since, as located, the south 60 feet of the premises will be required to be used as an integral part of the car-laundry operation.

For the reasons stated, we determine that the evidence establishes beyond dispute that the hardship relied upon for granting the variance was self-created. Therefore, under the cited authorities it was beyond the power of the board to grant the variance because of hardship.

By the Court. — Judgment reversed with directions to enter a judgment reversing the decision of defendant Board of Appeals.

       The parties have cited State ex rel. Tingley v. Gurda (1932), 209 Wis. 63, 243 N. W. 317, and Thalhofer v. Patri (1942), 240 Wis. 404, 3 N. W. (2d) 761. Neither are in point on the issue here under consideration. However, a statement is made at page 67 of the Tingley Case opinion which casts doubt upon the power of the board to grant a variance which changes the use classification of the south 60 feet of Cities Service’s premises even if this were not a case of self-created hardship.

       New York holds that as one of the conditions for a board of appeals granting a variance because of “undue hardship” the record must show that the land cannot yield a reasonable return if used only for a purpose allowed in the use district in which it is zoned. Otto v. Steinhilber (1939), 282 N. Y. 71, 24 N. E. (2d) 851.


author: Hallows, J.

text:
    Martell, Appellant, v. National Guardian Life Insurance Company, Respondent.

      March 2

    March 30, 1965.

      For the appellant there were briefs by Robert P. Stebbins and Kaftan, Kaftan & Kaftan, all of Green Bay, and oral argument by Mr. Stebbins.

    For the respondent there was a brief by Welsh, Trow-bridge, Bills, Planert & Gould of Green Bay, and oral argument by George E. Bills.

   Hallows, J.

It is contended by the plaintiff the specimen value sheet is a part of the contract of insurance, relying on Timlin v. Equitable Life Assur. Society (1910), 141 Wis. 276, 124 N. W. 253. In many respects Timlin is like this case. There, two sheets of paper pinned together were delivered to the policyholder and were held to constitute the insurance contract. Their contents had been the subject of negotiation and while the delivery of the two pinned-together sheets was not conclusive, that fact taken with other circumstances of the transaction had a material and significant bearing on the question of what the parties intended as their contract. Timlin is not necessarily controlling on what the parties in the case at bar intended to be their contract. Intention is factual, not a question of law.

On August 17, 1928, after some negotiation the plaintiff made an application through Stewart Smith, an agent of the defendant at Green Bay, for two $5,000 life insurance policies. The application was accepted and policies dated August 20th were sent to the agent Smith for delivery. Smith delivered the policies, collected the premiums, and receipted the policies. The plaintiff testified the policies were enclosed in separate envelopes and without examining them he put them in a dresser drawer. About a year later when the second premiums became due he removed the policies and saw for the first time the specimen value sheet which was folded and attached by a paper clip to one of the policies.

Over the objection of the defendant the plaintiff testified the agent in selling the policy had told him that if he left the dividends with the company to accumulate, the life insurance policy would mature as an endowment when he reached age sixty-five. The plaintiff in his application elected to leave his dividends to accumulate with the company. Plaintiff also testified he knew the dividends of the life insurance company varied from year-to-year. The agent testified he had used the specimen value sheet, which was dated some seven days prior to the application, in selling the policy to the plaintiff and was sure he did not attach it to the policy, or deliver it with the policy. He also testified he qualified the statement that the accumulated dividends would mature the policy at age sixty-five by stating this would occur only if the company continued to pay the same rate of dividends as existed at that time.

The sheet in question (Exhibit S) is partly printed as a form and partly typewritten. The printed part designates it as a “Specimen Value Sheet” and has five columns in which data may be put covering twenty years. The sheet is customarily used in making the net cost (not considering interest on the net premiums) and savings argument in selling life insurance. Typewritten data was inserted under the printed columns entitled “Dividend,” “Premium Less Dividend,” and the “Cash or Loan Value” for a twenty-year period. Age thirty-four is used with an initial premium of $108.44 for a $5,000 policy. For the- twenty-year period dividends of $663.41, cash value of $1,460, premiums less dividends of $1,505.39, and a net outlay for protection of $45.39 are shown. This typewritten statement also appears on the sheet:

“Dividends left with Co. will provide Policy paid up for Life age 57 — 23 Years
“Policy matures as Endowment age 66 — 32 Years.”

The sheet is dated August 10, 1928, has the defendant’s name printed on it, the agent’s sticker attached, and bears the agent’s signature.

Each policy provided the attached application and the policy constituted the entire contract between the parties. The printed part of the policy also provided that, “No receipt for a premium, nor permit, nor alteration or discharge of this policy, nor change in the written or printed form of this policy, nor waiver of the terms of this policy or of forfeiture under the same shall be valid unless signed by the President, Secretary or Treasurer of the Company, whose authority in this respect cannot be delegated.” The receipt for the first premium printed on the policy provided, “Agents have no authority to modify, alter or change this policy nor to extend the time for premium payments.” The policy instead of providing specifically for maturing at age sixty-six provided in paragraph 3 that, “Whenever the cash value of this policy with any accumulated dividends credited, and the cash value of any paid-up additions hereto, shall equal the full amount of this policy, then, . . . the Company will pay to the Insured or assigns the face of the policy as a matured endowment.”

The trial court was of the opinion that the oral testimony of the plaintiff concerning the statements of the agent and Exhibit 5 could not be considered under the parol-evidence rule. The alleged oral statements of the agent of the effect of accumulating dividends is no part of the contract. Exhibit 5, the specimen value sheet, is not so easily ruled out under the parol-evidence rule since it might be considered a contemporaneous document. Bank of Sheboygan v. Fessler (1935), 218 Wis. 244, 260 N. W. 441; Seaman v. McNamara (1923), 180 Wis. 609, 193 N. W. 377.

Assuming the specimen value sheet was clipped to one of the policies at the time of delivery as the plaintiff’s version has it, we do not find sufficient credible evidence that the parties intended it to be a part of their contract. The specimen value sheet was not issued by the home office of the defendant and was not on the policy when received by Smith, the agent. Unlike Timlin, we construe the language “this policy” to include and refer only to the printed policy issued at the home office. Under this interpretation, the printed policy plus the application by its terms constitute the entire contract between the parties. Any contemporaneous document to be a part of the contract would require thereon the signature of the president, secretary, or treasurer. Here, we have but one specimen value sheet for two policies attached to one only by a paper clip, bearing a date of ten days prior to the date of the printed policy and not signed by a designated officer of the defendant.

If, as is customary in fire insurance, the agent had authority to issue these policies for the defendant and did issue them and had attached the specimen value sheet to the policy, a much better case for the plaintiff would have been made. But here, the specimen value sheet and the printed policy considering them contemporaneous documents are incompatible and no internal reference in the printed policy is made to or incorporates the specimen value sheet and likewise no language of incorporation appears in the specimen value sheet. The paper clip hardly performs that function as a matter of law. In addition, the specimen value sheet in effect contradicts the terms of the printed policy. It is argued the specimen value sheet merely particularizes the general language of when the policy matures as an endowment, but this argument assumes the “specimen” is a guaranty. Even if the specimen value sheet were considered a part of the contract, the plaintiff would not be entitled to recovery of the face amount because the language of the specimen value sheet is not promissory in nature but illustrative. It is true in Timlin, language somewhat different as to future values was construed to be promissory in reference to a semitontine policy, and the court found the parties contracted for the specified amount designated as “guaranteed legal reserves” and “the guaranteed surplus is estimated at.” A few years after Timlin this court decided Tourtellotte v. New York Life Ins. Co. (1914), 155 Wis. 455, 144 N. W. 1117, relied on by the trial court. In that case the court, distinguishing Timlin, construed a separate document treated as a part of the contract of insurance to be only illustrative and explanatory of other parts of the contract and not promissory. In the instant case the sheet plainly states it is a specimen value sheet. No promissory language is to be implied. The data of future values is not guaranteed but illustrates on the basis of assumed facts. The plaintiff knew dividends would vary from year to year. While some courts have held that a document illustrative and not promissory in nature is not part of the insurance contract although contemporaneous, we do not hold such fact to be determinative of intention. An illustration may be part of a contract, although promises are more likely to be.

Language in an insurance policy connoting expectancy or illustrative on assumed conditions or facts will not support recovery. 2 Couch, Insurance (2d ed.), p. 203, sec. 4:43; O’Brien v. Equitable Life Assur. Society (1912), 173 Mich. 432, 138 N. W. 1086; Williams v. New York Life Ins. Co. (1913), 122 Md. 141, 89 Atl. 97; and Untermyer v. Mutual Life Ins. Co. (1908), 128 App. Div. 615, 113 N. Y. Supp. 221. On the problem of incorporating separate documents as part of an insurance contract, see Annos. 22 A. L. R. 1284, and 128 A. L. R. 1034.

By the Court. — Judgment affirmed.


author: Gordon, J.

text:
    Vollert and wife, Plaintiffs and Respondents, v. City of Wisconsin Rapids, Defendant and Appellant: Wood County, Defendant and Respondent.

      March 2

    March 30, 1965.

      For the appellant there was a brief and oral argument by Robert P. Bender of Wisconsin Rapids.

      For the respondents Walter and Hazel Vollert there was a brief by Schmidt & Thibodeau of Wisconsin Rapids, and oral argument by Gregory P. Thibodeau.

    For the respondent Wood county there was a brief and oral argument by Walter G. Wefel of Wisconsin Rapids.
   Gordon, J.

Is There Evidence to Support the Verdict?

The record contains credible evidence to support the jury’s finding that the city of Wisconsin Rapids was responsible for •raising the grade. Mr. Vollert testified that it was an agent of the city who raised the catch basins in 1957, and he also testified that it was the same city employee who raised the manholes. Mr. Sullivan, the county highway commissioner, testified that county employees constructed the road based upon the “existing catch basins and manholes.” In our view, the foregoing was sufficient to warrant the jury’s determination of this factual dispute.

The New Defense Under the Statute.

After the trial, the city urged that, as a matter of law, it could not raise the grade. In support of this contention, the city relies upon the terms of sec. 83.01 (7) (b), Stats., which provides that one of the duties of the county highway commissioner is to establish the grade. While we .doubt that sec. 83.01 (7) (b), as a matter of law, would insulate a city from liability if it, in fact, had altered a grade, it is not necessary in the case at bar for us to adopt such interpretation in order to reject this argument by the city. This is because the matter was not raised during the trial. It is a new theory which was not made known to the court or to the other parties until after the verdict.

When the new defense was first raised, there was a colloquy in open court in which Judge Bunde commented on the fact that during the trial the city’s defense had been that it had nothing to do with the change in the grade. The city’s counsel acknowledged, on the record, that this was the city’s position. The judge went on to state, “Yes, and that was the theory that we tried the case on.”

In Harrington v. Downing (1918), 166 Wis. 582, 166 N. W. 318, a defense was brought to the trial court’s attention for the first time after the trial. The trial court rejected the new contention because it was not timely presented, and, in affirming, this court stated, at page 585:

“It was decided at an early date that matters of defense not brought forward and called to the attention of the court and opposing parties during the trial in some appropriate manner so that in the ultimate determination of the issues their influence might be given due consideration, are effectually waived, and thereafter they cannot be urged as grounds for a new trial or reversal in this court, . . .”

See also Leora v. Minneapolis, St. P. & S. S. M. R. Co. (1914), 156 Wis. 386, 146 N. W. 520, and Congar v. Chamberlain (1861), 14 Wis. 279 (*258).

The Exclusion of Photographs.

It is also urged by the city that the trial court erred in refusing to admit into evidence certain photographs offered as exhibits by the city. There was testimony by Mr. Vollert that Exhibits 5, 8, 10, 15, and 17 were not accurate representations of the scene as it existed during the period in dispute. The pictures were taken only a few days before trial, and the photographer acknowledged that he could not testify that the pictures portrayed the property as it had existed previously.

The trial court conducted an extensive inquiry into the matter of the admissibility of these pictures, and its conclusion to deny admissibility was well within its discretion. Commerce Ins. Co. v. Badger Paint & Hardware Stores (1953), 265 Wis. 174, 60 N. W. (2d) 742; Cottrill v. Pinkerton (1933), 211 Wis. 310, 248 N. W. 124; Baraboo v. Excelsior Creamery Co. (1920), 171 Wis. 242, 177 N. W. 36; Mauch v. Hartford (1901), 112 Wis. 40, 87 N. W. 816. An example of a case in which photographs were held to contain misrepresentations is Hadrian v. Milwaukee Electric Railway & Transport Co. (1942), 241 Wis. 122, 130, 1 N. W. (2d) 755, 3 N. W. (2d) 700, 5 N. W. (2d) 765.

In an article on the subject of demonstrative evidence appearing in 32 Wisconsin Bar Bulletin (February, 1959), p. 17, the writer of this opinion made the following comment:

“A photograph is not necessarily a true representation of what it purports to depict and, therefore, it is essential upon objection that the proponent of the evidence satisfy the trial judge as to the fairness of the representation.”

Timeliness of the Action.

The appellant also contends that the Vollerts’ suit was not timely under sec. 62.25 (1) (e), Stats; The appellant claims that the instant suit was not commenced until July 1, 1963, long after the six months’ period set by the aforesaid statute.

However, the city erred in not serving a notice of dis-allowance, as required in sec. 62.25 (1) (c), Stats., and, therefore, the six months’ period was not operative. Subsection (c) of this statute expressly provides: “The clerk shall cause to be served on the claimant notice of any dis-allowance. . . .” It goes on to provide that the notice shall be served by a police officer “in the manner of service of summons in justice court.” No such notice was given to Mr. or Mrs. Vollert.

The city contends that the plaintiffs received the equivalent thereof when, on February 16, 1962, Mr. Vollert was informed at a meeting of a council committee that there was “nothing that the city can do at this time.” The statute is explicit as to the manner in which notice of disallowance is to be given. At most, Mr. Vollert was made aware that a committee of the council declined to grant his claim. This is not equivalent to the disallowance of the claim by the common council. The committee’s report was, in fact, subsequently adopted by the common council, but the record does not show that the common council’s action was communicated to the plaintiffs, let alone served on them, as the statute expressly requires.

By the Court. — Judgment affirmed.


text:
    Hutt and wife, Respondents, v. Lamont’s Service, Inc., Appellant.

      March 3

    March 30, 1965.

      For the appellant there was a brief by Nikolay, Jensen & Scott of Colby, and oral argument by Frank Nikolay.

    For the respondents there was a brief and oral argument by William J. Dehn of Marshfield.

       Motion for rehearing denied, with costs, on June 1, 1965.

   Gordon, J.

“I care not who makes th’ laws iv a nation iv I can get out an injunction.”

—Mr. Dooley

The appellant urges that the extraordinary remedy of an injunction should not have been granted because there was an adequate remedy in law. Relief by way of an injunction, it is urged, is inappropriate when the issue is one of title to real estate. If a trespass has been committed, argues the appellant, ejectment would have been the proper remedy under Lipinski v. Lipinski (1952), 261 Wis. 327, 52 N. W. (2d) 922.

From the earliest of times, adjoining landowners have warred over lot lines. In Deuteronomy (ch. 27, verse 17), it is written: “Cursed be he that removeth his neighbor’s landmark.” The Lipinski Case relied upon by the appellant was a dispute between neighbors as to their common boundary.

The instant case, however, is an action to abate an alleged public nuisance resulting from the appellant’s placing posts on a public alleyway. We must first decide whether the posts are located in the public alleyway, and, if so, whether they constitute a nuisance for which these plaintiffs can obtain injunctive relief.

“A nuisance may be merely a right thing in the wrong place, — like a pig in the parlor instead of the barnyard.” Euclid v. Ambler Co. (1926), 272 U. S. 365, 388, 47 Sup. Ct. 114, 71 L. Ed. 303.

The Location of the Posts.

The trial judge determined that the fence posts which the appellant erected “are in fact located in the alley.” In our opinion, this conclusion is not against the great weight and clear preponderance of the evidence.

The trial court had before it divergent attitudes on the part of two different surveyors. Its decision to give greater weight to the testimony of one surveyor, Mr. Stanley Loken, as opposed to that of another surveyor, was a proper function of the trier of fact, and the record discloses no reason for our upsetting the trial court’s evaluation of their evidence.

Private Relief from a Public Nuisance.

The posts being in a public alleyway, they clearly constitute a public nuisance. Smith v. Jefferson (1959), 8 Wis. (2d) 378, 383, 99 N. W. (2d) 119; Walley v. Patake (1956), 271 Wis. 530, 541, 74 N. W. (2d) 130; Smith v. Congregation of St. Rose (1953), 265 Wis. 393, 400, 61 N. W. (2d) 896; State v. Carpenter (1887), 68 Wis. 165, 173, 31 N. W. 730.

Does the fact that this nuisance is primarily a public one foreclose the plaintiffs as private individuals from obtaining injunctive relief? As long ago as Ryan v. Schwartz (1896), 94 Wis. 403, 69 N. W. 178, we held that owners of property abutting a highway may properly maintain an action to abate a nuisance which obstructs the street. See Costas v. Fond du Lac (1964), 24 Wis. (2d) 409, 414, 129 N. W. (2d) 217; Kamke v. Clark (1955), 268 Wis. 465, 478, 67 N. W. (2d) 841, 68 N. W. (2d) 727. See also secs. 280.01, 280.02, and 280.03, Stats.

In Mitchell Realty Co. v. West Allis (1924), 184 Wis. 352, 372, 199 N. W. 390, this court said:

“. . . a nuisance may be both public and private, and . . . a public nuisance may also become a private nuisance as to any person who is especially injured by it to any extent beyond the injury to the public.”

We believe that the interjection of the posts in the public alleyway adjacent to-the appellant’s property, which is being used as a gasoline station, could properly be held to cause a special injury to the Hutts. As to them, the public nuisance is also a private nuisance.

The Right to Injunctive Relief.

Mr. Hutt acknowledged that his damages could be calculated in money. Based thereon, the appellant argues that the respondents have an adequate remedy at law which should bar injunctive relief. In our view, this admission by Mr. Hutt should not preclude the court from exercising its discretion to grant injunctive relief. In a broad, philosophical sense, money is a common denominator which, in the absence of a better measure, may be used to evaluate every conceivable loss. Thus, such items as pain, the alienation of affections, and a wrongful death are held to be translatable into money. Money may be a poor substitute in such cases, but it is utilized because it is often the only means of compensation.

In the case at bar, the award of money is not the only feasible means of resolving the wrong to the plaintiffs. They did not seek money damages. They sought to have the nuisance abated, and, in our opinion, the nuisance is of a continuing type which the trial court had a right, in its discretion, to abate by the injunctive process under its equitable powers. “It is always term time in the court of conscience,” says the seventeenth century proverb attributed to Thomas Fuller.

It is to be noted that this court has approved judgments which provide for both the award of money damages and the abatement of a nuisance. Kamke v. Clark, supra; Karns v. Allen (1908), 135 Wis. 48, 115 N. W. 357.

In granting an injunction, the trial court may also have considered the difficulty in computing the plaintiffs’ damages in a case such as that here presented. To calculate the loss to the Hutts for an injury to business arising from this continuing nuisance might have required an element of speculation. See Vetter v. Rein (1931), 203 Wis. 499, 503, 234 N. W. 712.

By the Court. — Judgment affirmed.


author: CuRRiE, C. J. Beilfuss, J.

text:
    State ex rel. Thompson, Attorney General, Respondent, v. Nash, Court Commissioner, Appellant.

      March 3

    March 30, 1965.

      For the appellant there was a brief by Godfrey & Kahn, attorneys, and John M. Byers and James Ward Rector, Jr., of counsel, all of Milwaukee, and oral argument by Mr. Rector.

    For the respondent the cause was argued by Harold H. Persons, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and A. J. Feifarek, assistant attorney general.
   CuRRiE, C. J.

Three issues are presented by this appeal: (1) Does sec. 326.12, Stats., authorize the examination of an employee of the Wisconsin department of taxation as an incident of a proceeding pending before the Wisconsin board of tax appeals ?

(2) Does sec. TA 1.13, 6 Wis. Adm. Code, authorize such an examination before a court commissioner ?

(3) Does the circuit court have such supervisory control over the board of tax appeals as 'to authorize it to direct the holding of such an examination ?

Scope of Sec. 326.12, Stats.

Sub. (1) of sec. 326.12, is entitled, “When Depositions May be Taken,” and provides:

“In any civil action or proceeding, any party may examine any person, including a party, by deposition upon oral examination at any time before final determination thereof, for the purposes of discovery or for use as evidence in .the action or for both purposes.”

The key words for the purpose of this appeal are: “In any civil action or proceeding.” Clearly, “civil action” is confined to actions in court. “Proceeding” is a more-ambiguous term, and, standing alone, could refer to a proceeding before an administrative agency as well as one in court. The attorney general asserts that secs. 260.02 and 260.03, Stats., control the sense in which "proceeding” is employed in sec. 326.12. Sec. 260.02 provides that remedies in courts of justice are divided into civil actions and special proceedings; sec. 260.03 defines “action” and then states, “Every other remedy is a special proceeding.” However, the express wording of sec. 260.02 makes it crystal clear that these two sections are limited to remedies in courts of justice. Furthermore, ch. 260 is part of Title XXV, and sec. 260.01 limits the scope of Title XXV to civil actions in courts of record. Sec. 326.12 is found in Title XXX. Thus we cannot resort to the definition of special proceeding in sec. 260.03 as our initial approach to determine the meaning of “proceeding” as used in sec. 326.12.

If the word "proceeding” were given a general meaning so as to include court actions as well as administrative proceedings the word “action” would be superfluous. It is a principle of statutory construction that all words are to be given effect, if possible. The doctrine-of ejusdem generis in statutory construction prevents words from becoming superfluous. It provides .that where a general word follows a specific word in an enumeration the general word is construed to embrace something similar in nature to the specific word. Sutherland, Statutory Construction (3d ed.), p. 395, sec. 4909. Since “action” means a specific type of court proceeding the word “proceeding” in sec. 326.12 (1), Stats., is restricted to a proceeding in court. We, therefore, construe “proceeding” to mean a special proceeding in the sense in which the latter term is employed in sec. 260.03. While the doctrine of ejusdem generis is not to be applied where there is a clearly manifested legislative intent that the general term be given a broader meaning than the doctrine requires, there is no such legislative intent manifested here.

This construction is further substantiated by sub. (3) of sec. 326.12, Stats., which reads :

“After notice is served for taking a deposition, upon motion reasonably made by any party or by the person to be examined, and, upon notice and for good cause shown, the court may make an order that the deposition shall not be taken, or that certain matters shall not be inquired into, or any other order which justice requires to protect the party or witness from annoyance, embarrassment or oppression.” (Italics supplied.)

The words “the court” necessarily mean the court in which the action or proceeding mentioned in sub. (1) of sec. 326.-12, Stats., is pending. If the legislature had intended that sec. 326.12 be applicable to proceedings before administrative agencies it would have specified in sub. (3) the court to which application was to be made for relief under that subsection.

The attorney general’s brief traces the history of sec. 326.12, Stats., and its predecessor statutes back to the Revised Statutes of 1858. From time to time amendments and revisions occurred, and there is nothing in this statutory history which lends any support to appellant’s contention that present sec. 326.12 is applicable to a proceeding pending before an administrative agency.

In 1931 and again in 1933 this court utilized its rule-making power to amend sec. 326.12, Stats. See 204 Wis., page ix, and 212 Wis., page xix. This action on our part 4s inconsistent with appellant’s theory that the statute is applicable to administrative-agency proceedings, since such agencies are creatures of the legislature, apart from the judicial branch of state government. Our rule-making power does not extend to prescribing procedures to be followed by administrative agencies. In Gray Well Drilling Co. v. State Board of Health (1953), 263 Wis. 417, 419, 58 N. W. (2d) 64, we stated:

“The functions of administrative agencies and courts are so different that the rules governing judicial proceedings are not ordinarily applicable to administrative agencies, unless made so by statute. It is not the province of courts to prescribe rules of procedure for administrative bodies, as that function belongs to the legislature. The legislature may either prescribe rules for pleadings and procedure before such bodies, or it may authorize the administrative board or agency to prescribe its own rules.”

See also State ex rel. Wasilewski v. Board of School Directors (1961), 14 Wis. (2d) 243, 268, 111 N. W. (2d) 198.

Appellant places reliance upon sec. 102.17 (1) (bm), Stats., of the Workmen’s Compensation Act, which provides :

“(bm) Section 326.12 shall not apply to proceedings under this act, except as to a witness:
“1. Who is beyond reach of the subpoena of a commissioner or examiner; or
“2. Who is about to go out of the state, not intending to return in time for the hearing; or
“3. Who is so sick, infirm or aged as to make it probable that he will not be able to attend the hearing; or
“4. Who is a member of the legislature, if any committee of the same or the house of which he is a member, is in session, provided he waives his privilege.”

The inference appellant draws from this provision is that the legislature must have interpreted sec. 326.12, Stats., to be applicable to workmen’s compensation proceedings before the industrial commission. We fail to find such argument persuasive because the construction placed on a • statute by a different legislature than enacted it is not binding upon the courts. See State ex rel. Larson v. Giessel (1954), 266 Wis. 547, 555, 64 N. W. (2d) 421, and cases cited. Furthermore, the provision of sec. 102.17 (1) (bm), that sec. 326.12 shall not apply to proceedings under the Workmen’s Compensation Act except as thereafter provided, may well have been inserted out of a sense of caution on the part of the draftsmen.

The federal rules of civil procedure for discovery are not applicable to administrative-agency proceedings. 1 Davis, Administrative Law Treatise, p. 588, sec. 8.15. See also Okum v. Kastner (D. C. R. I. 1941), 1 F. R. D. 599.

This is the first time to our knowledge that the issue of whether sec. 326.12, Stats., is applicable to administrative-agency proceedings has been raised in this court. We deem that this indicates that it is the general consensus among the members of the bar of the state that this statute is not so applicable.

For the reasons stated, we determine that sec. 326.12, Stats., standing by itself, has no application to administrative-agency proceedings.

Board’s Rule TA 1.13.

The board has adopted the following rule of practice and procedure:

“Except as otherwise provided herein, the practice and procedure before the board shall substantially follow that before the circuit courts of this State.” Sec. TA 1.13, 6 Wis. Adm. Code.

It is appellant’s position that once a review proceeding is instituted by a taxpayer before the board the rule authorizes all practice and procedure applicable to a civil action in circuit court, including a discovery examination under sec. 326.12, Stats. The attorney general, on the other hand, contends the rule only applies to the conduct of the hearing before the board and is not to the procedure that precedes the hearing. We deem that either interpretation is reasonable and tenable. This being so, the proper interpretation of the rule lies within the province of the board, and not the courts.

Neither party cites to us any official interpretation of this rule by the board, except that appellant’s brief asserts that it is the customary practice of the board to refuse to issue subpoenas for the adverse examination before hearing of department employees. Even if the board were to interpret its rule as applying to practice and procedure in a pending board proceeding prior to the hearing, we determine that the circuit court’s judgment properly directed issuance of the writ of prohibition. This is because the rule does not confer subpoena power upon appellant as court commissioner, and the subpoena power conferred upon court commissioners by sec. 252.15 (1), Stats., is limited to court actions and proceedings.

Although the subpoena ordering the discovery examination was captioned “State of Wisconsin, Wisconsin Board of Tax Appeals” it was signed by appellant, “Court Commissioner in and for Milwaukee County, Wisconsin.” Appellant was not acting as authorized agent of the board of tax appeals but as court commissioner, and as such he could have no broader jurisdiction than the circuit court for such county. Ch. 256, Wis. Stats., states general provisions concerning courts of record. Sec. 256.01, provides in part as follows:

“The several courts of record of this state shall have power:
“(1) To issue process of subpoena, requiring the attendance of any witness, residing or being in any part of this state, to testify in any matter or cause pending or triable in such courts.” (Italics supplied.)

Court commissioners are appointed by circuit and county judges. Sec. 252.14, Stats. Being subordinate judicial officers of the circuit and county courts it necessarily follows that their subpoena powers conferred by sec. 252.15 (1) are to be construed in the light of the provisions of sec. 256.01 (1), which limits the subpoena powers of courts of record to matters pending and triable in such courts. Neither courts of record nor court commissioners under the above-mentioned statutes are given subpoena power in proceedings pending before administrative agencies.

Authority of Circuit Court to Direct Holding of Discovery Examination.

Sec. 8, art. VII, Wisconsin constitution, provides that circuits courts “shall have . . . appellate jurisdiction from all inferior courts and tribunals, and a supervisory control over the same.” Any tribunal acting in a quasi-judicial capacity is subject to this jurisdiction of the circuit court. State ex rel. Ballard v. Goodland (1915), 159 Wis. 393, 396, 150 N. W. 488. The instant board is a tribunal which acts in a quasi-judicial capacity. From this premise appellant argues that the circuit court should have required a return to be made to the alternative writ of prohibition, and, upon such return, directed the holding of the discovery examination of the department employee by exercising the court's supervisory power under the aforequoted provision of the state constitution.

In support of this contention appellant maintains that the equities of the case would require the circuit court to take this action. These asserted equities are: Under the procedure followed by the department in conducting its hearings, the taxpayer is first required to take the stand and present his case. The instant assessment has been based entirely on a net-worth formula, and the taxpayer disputes the net-worth figures used by the department employee. The taxpayer has been unsuccessful in obtaining from the department information to substantiate these net-worth figures. Therefore, taxpayer’s initial testimony must of necessity be merely negative in character. He will not be able to prepare and present his case until after he hears the testimony of the department employee who made the audit which puts the taxpayer at a tremendous disadvantage.

This court has never interpreted sec. 8, art. VII, Wisconsin constitution, as authorizing the circuit courts to interfere with the orderly operating procedures of an administrative agency in the absence of a showing of a denial of due process. Traditionally, unless the legislature has prescribed some other method of review, administrative-agency determinations have been reviewed by certiorari. Clintonville Transfer Line v. Public Service Comm. (1945), 248 Wis. 59, 69, 21 N. W. (2d) 5. The legislature has now prescribed a comprehensive review procedure with respect to most state administrative-agency determinations, including those of the instant board, by enacting the Wisconsin Administrative Procedure Act (ch. 227, Stats.). Because of the scope of review granted by sec. 227.20 (1), any denial of due process can in most instances be adequately remedied thereunder. Even where an administrative agency is acting in a quasi-judicial capacity, the circuit court should not exercise its supervisory control under sec. 8, art. VII, independently of ch. 227, except where there has been a substantial showing of denial of due process which cannot later be adequately remedied by review under ch. 227.

While appellant has made a showing that makes a strong appeal to our sense of fair play, this showing falls far short of establishing a denial of due process. In fact, appellant does not contend that there has been a denial of due process. Therefore, the circuit court did not err in not permitting a return to be made to the alternative writ upon denial of the motion to quash. Even if a return had been permitted it would not have been proper to have directed the holding of a discovery examination.

While not material to the disposition of this appeal, we deem that this is a proper occasion to qualify a statement made in the court’s opinion in Clintonville Transfer Line v. Public Service Comm., supra. This statement occurs at page 69, and is, “The powers exercised by administrative agencies are legislative and not judicial in their nature.” This is incorrect in that sometimes such powers are quasi-judicial and not legislative. For an instance of prior recognition of this see Muench v. Public Service Comm. (1952), 261 Wis. 492, 515p, 53 N. W. (2d) 514, 55 N. W. (2d) 40. An illustration of a state administrative agency functioning in a quasi-judicial capacity is provided by State ex rel. Ball v. McPhee (1959), 6 Wis. (2d) 190, 94 N. W. (2d) 711. The duties of the instant board are almost entirely, if not entirely, quasi-judicial as distinguished from legislative. Sec. 73.01 (5), Stats. For a discussion of the nature of the powers exercised generally by administrative agencies, see 1 Davis, Administrative Law Treatise, pp. 64 et seq., sec. 1.09.

By the Court. — Judgment affirmed.

Beilfuss, J.

(concurring). I agree with the majority for the reasons stated in the opinion. I would simply add, that because the procedure adopted by the board is antagonistic to our sense of fair play, we commend to the board for its consideration the adoption of a rule which would afford to any party a right to discovery examination prior to hearing in contested quasi-judicial proceedings pursuant to authority of sec. 73.01 (5) (d), Stats.

       Sec. 252.15 (1), Stats., provides:
      “A court commissioner may issue subpoenas and attachments and other process to compel the attendance of witnesses; administer oaths and affidavits; take depositions and testimony when authorized by law or rule or order of any court within its jurisdiction; and certify and report said depositions and testimony.”

       For subpoena power with respect to matters pending before the board of tax appeals, see sec. 73.01 (5) (d), Stats.


author: Fairchild, J.

text:
    Estate of Turer: Lichtsinn, Executor, Appellant, v. Turer, Respondent.

      March 3

    March 30, 1965.

      For the appellant there was a brief by Lichtsinn, Dede, Anderson & Ryan of Milwaukee, for Harold F. Lichtsinn, executor, and by Lewis A. Stocking of Milwaukee, Guardian ad litem, for John and Jo Ann Richardson, and oral argument by Eldred Dede.

    For the respondent there was a brief and oral argument by Henry L. Arnold of Milwaukee.

       Motion for rehearing denied, with costs, on June 1, 1965.

   Fairchild, J.

1. Sufficiency of proof. Appellant executor contends that the proof of the cost of support furnished by Sidney is so uncertain that no definite finding as to amount is possible. The court, however, determined only that the cost for the six years before Betty Jane’s death exceeded $4,100. We deem the finding was sufficiently supported. Betty Jane’s complaint in the action against Richardson fixed the amount at $4,950 for the period from 1954 to 1959. Sidney testified that he paid all the living expenses. He indicated that milk and other food for the family of four ran from $1,700 to $2,000 per year, and that there were other expenditures partly attributable to the children. It is clear enough, also, that Sidney paid virtually all the expenses during the 1954-1961 period for which the $4,100 was recovered.

2. Waiver or estoppel. Appellant executor contends that Sidney waived, or is estopped from making, a claim that he paid the living expenses of the children because he was aware of Betty Jane’s action against Richardson in which she alleged she paid them. The inconsistency is more apparent than real. This court has held that where the child of divorced parents is supported as a member of the family of his mother and her second husband, for which the second husband is the breadwinner, the mother may recover accrued unpaid support money from her divorced husband. The theory was that the mother, the homemaker, presumably suffered pecuniary injury because of the use of the resources of the new family to provide that which the father had the duty to provide, but did not. Permitting the mother to recover from the father in this situation does not necessarily exclude the second husband from asserting a claim to the proceeds as between himself and the mother.

3. The merits. The original theory of Sidney’s claim was that Betty Jane was liable upon implied contract to pay Sidney the reasonable value of the food, lodging, clothing, and the like, furnished to her children. The county court declined to allow the claim on that theory, and we agree. The court did recognize, however, that an identifiable fund was in the hands of the executor, that the fund represented the accrued obligation of the children’s father to contribute to the support of the children in the past, and that Sidney had furnished more than that amount of money in order to support them. The court evidently concluded that these facts gave Sidney an equitable claim upon the fund.

Appellant executor has cited authorities dealing with several aspects of the type of situation before us where children are cared for in the family headed by a stepparent. Under some circumstances, the stepparent may become obligated to support his stepchildren.

“It is practically the universal rule that a stepfather, as such, is under no obligation to support the children of his wife by a former husband, but that if he takes the children into his family or under his care in such a way that he places himself in loco parentis, he assumes an obligation to support them, and acquires a correlative right to their services.”
“If, however, a stepparent has assumed the parental relation to the children and holds them out to the world as members of his own family, he places himself in loco parentis, and incurs the same liability with respect to their support and education as if they were his own children.”

The right of a stepparent to compensation from the separate property of a stepchild is also dependent upon the circumstances under which the stepchild resides with the stepfather’s family.

There is a presumption that where near relatives, by blood or marriage, reside together as a family, services rendered by one to another, including the provision of board and other maintenance, are gratuitously rendered.

We are not concerned in this case with a claim by Sidney that he is entitled to recover the value of the care from any separate property of the children. Nor are we concerned with any claim by the children, the public, or some third party who has supplied necessaries that Sidney has entered into a relationship with the children which obligated him to provide support. We are not concerned with an allowance of a claim against the mother upon a theory of- contractual liability. Although a wife in this situation could make an enforceable agreement with her second husband to compensate him out of her separate estate for his contribution to the care of her children by a former marriage, there is no evidence that Betty Jane made such a promise. We do not hesitate to extend the presumption of gratuity above mentioned so that in the absence of an express promise she incurred no liability to pay for the support furnished her children in the home maintained by her second husband. But the existence or absence of an obligation of the stepfather to the children or they to him, and the absence of a contractual obligation of the mother to the stepfather do not answer the question presented.

Here the children have been supported for a period of years by the combined efforts of their mother and stepfather. The mother has kept the house and supplied most of the personal care. The stepfather has furnished the money and presumably some of the personal care. During the same period, the children’s father has had a duty to contribute to the support of the children, but has failed to do so. He has now paid over an amount of money which has been judicially determined to be an acquittance of his obligation for the particular past years. As between the mother, who happens in this case to be deceased, and the stepfather, who is entitled to the fund ?

The members of this court hold different views as to the proper answer:

The first view, held by the majority, is that the money paid by Richardson represents the obligation of the father during certain past years. This obligation has been fulfilled by the stepfather during those years and he therefore has supplied the consideration for the money collected by the executor. It is significant that the amount of Richardson’s obligation was measured by the amount of money spent for support, and this money was furnished by Sidney. It is reasonable to suppose that if Betty Jane had lived she would at least have used the money for family purposes and that if Richardson had paid the money in periodic instalments in the past, she would have used it to help with family expenses. There is unjust enrichment of Betty Jane’s estate if the fund is not now paid to Sidney. The allowance of the claim amounted to the recognition of a resulting trust and was proper.

The second view, held by the minority, is that the support was provided by the joint efforts of mother and stepfather. The mother was homemaker for her husband and herself as well as the children; the father was breadwinner for all four. Their respective contributions to the support of the children cannot be separately evaluated in money. Since our established rule permits the mother to recover support money from the father in situations like the present one, it becomes part of her separate estate and she should not be required to account for it to the stepfather in the absence of an express agreement or other objective evidence of an intention to pay it over.

Mr. Chief Justice Currie, Mr. Justice Gordon, Mr. Justice Beilfuss, and Mr. Justice Heffernan hold the first view above stated and would affirm the judgment. Mr. Justice Hallows, Mr. Justice Wilkie, and the writer of this opinion hold the second view, and would reverse.

By the Court. — Judgment affirmed.

        Braun v. Brown (1957), 1 Wis. (2d) 481, 486, 85 N. W. (2d) 392, 86 N. W. (2d) 427.

       39 Am. Jur., Parent and Child, p. 699, sec. 62.

       67 C. J. S., Parent and Child, p. 808, sec. 80.

       67 C. J. S., Parent and Child, p. 809, sec. 80.

         Hall v. Finch (1871), 29 Wis. 278, 286; Estate of Schmidt (1896), 93 Wis. 120, 124, 67 N. W. 37; Estate of Goltz (1931), 205 Wis. 590, 238 N. W. 374.

        See Braun v. Brown, supra, footnote 1.


text:
    Estate of Gray: Gray, Appellant, v. Schultz, Executor, and another, Respondents.

      March 3

    March 30, 1965.

      For the appellant there was a brief by Wapibach & Knuep-pel, attorneys, and Lichtsinn, Dede, Anderson & Ryan of counsel, all of Milwaukee, and oral argument by Eldred Dede.

    For the respondents there was a brief by Laikin, Swietlik & Peltin, attorneys, and Joseph I. Swietlik of counsel, all of Milwaukee, and oral argument by Joseph I. Swietlik.

       Motion for rehearing denied, with costs, on June 1, 1965,

   Gordon, J.

On November 22, 1957, an account in the sum of $29,527.90 in the sole name of Mildred Gray at the Ladish Employees’ Credit Union was changed so that thereafter it contained the names of both Mildred Gray and her husband, Otto L. Gray. The signature card, which they both signed, was entitled, “Joint Account Agreement,” and it provided that the credit union was “authorized to pay any amount standing to the credit of the above account to or upon the order of either or both or the survivor of either of us.”

There is a presumption that a joint tenancy was intended by this transfer to joint names. Sec. 230.45 (2), Stats., provides as follows:

“Any deed, transfer or assignment of real or personal property from husband to wife or from wife to husband which conveys an interest in the grantor’s lands or personal property and by its terms evinces an intent on the part of the grantor to create a joint tenancy between grantor and grantee shall be held and construed to create such joint tenancy, and any husband and wife who are grantor and grantee in any such deed, transfer or assignment heretofore given shall hold the property described in such deed, transfer or assignment as joint tenants.”

The form of the joint account is not conclusive as to what the parties intended, as this court noted in Estate of Kemmerer (1962), 16 Wis. (2d) 480, 487, 114 N. W. (2d) 803. Nevertheless, there is applicable our holding in Estate of Pfeifer (1957), 1 Wis. (2d) 609, 612, 85 N. W. (2d) 370:

“Although the form of the account is not conclusive, as we said in the cases, supra, an account opened in joint names raises a rebuttable presumption that the creator of such an account intended the usual rights incident to jointly owned property. . . .”

In the Pfeifer Case, at page 613, we also pointed out that to overcome the rebuttable presumption of the joint account, the challenger must present evidence which is “clear and satisfactory.” See also Estate of Michaels (1965), 26 Wis. (2d) 382, 390, 391, 132 N. W. (2d) 557. In Estate of Roth (1964), 25 Wis. (2d) 528, 533, 131 N. W. (2d) 286, we used the words “clear and convincing.” Whether the presumption of joint tenancy arises by reason of the statutory declaration of sec. 230.45 (2), Stats., or whether it arises by reason of the terms of the deposit agreement, such presumption can be rebutted only by clear and satisfactory evidence.

There is evidence that, subsequent to the time she added her husband’s name to the account in 1957, Mildred Gray desired to alter it. Her withdrawal of the entire proceeds in May, 1962, demonstrated her decision to end the joint account.

However, there is no clear and satisfactory evidence that on November 22, 1957, when this account evolved, Mildred Gray intended to establish anything other than a joint account. So far as her joint tenant is concerned, her efforts to alter the nature of the account after it was in existence are not controlling; the governing intention which the court must determine is that which prevailed on November 22, 1957.

The trial court found that Mildred Gray added her husband’s name to the account “with the intention of reserving to herself the right to eliminate his name from said account at any time without procuring his consent.” The record is devoid of sufficient proof to support this finding. Presumptively, a joint tenancy was created; even though Mildred Gray personally handled all transactions with the credit union both before and after the creation of the account and even though she made all the deposits, such acts do not show that her intention at the time she created the account was other than to establish a joint tenancy.

The respondents rely upon Zander v. Holly (1957), 1 Wis. (2d) 300, 84 N. W. (2d) 87. In that case, there were facts which clearly showed that there was no intention to create the normal type of joint tenancy. In the Zander Case, an aunt was of advanced years and in feeble health; her niece testified that it was understood that she, the niece, was to have no interest in the property except upon her aunt’s death. The court concluded that a survivorship, but not a true joint tenancy, was intended (p. 313). In the case at bar, there is no evidence from which it could be concluded that Otto Gray was barred from making withdrawals or from fully enjoying the account as a joint tenant. In fact, he testified that he was empowered to make withdrawals.

Mildred Gray’s withdrawal of the entire proceeds in May, 1962, was an act which she was empowered to do so far as the credit union was concerned. However, in regard to the rights of her husband, she was not empowered to terminate or transfer his portion of the joint account. In Estate of Schley (1955), 271 Wis. 74, 81, 72 N. W. (2d) 767, Mrs. Schley had certificates of deposit issued payable to herself or her husband or to the survivor. The court pointed out that although she:

“. . . had the power to withdraw said funds, she did not have the power or right to appropriate and thereby destroy her husband’s interest therein. When she made such withdrawals without the consent of her husband her acts severed the joint tenancy but did not destroy her husband’s joint and equal’ interest therein. Those funds, once payable to either or the survivor, can now be traced. . . .”

See Bassler v. Rewodlinski (1906), 130 Wis. 26, 109 N. W. 1032; Estate of Hoffman (1940), 175 Misc. 607, 25 N. Y. Supp. (2d) 339; Marrow v. Moskowitz (1931), 255 N. Y. 219, 174 N. E. 460. See also 161 A. L. R. 80.

By withdrawing the entire account, Mildred Gray severed the joint tenancy, but, in our opinion, she did not thereby deprive her husband of his 50 percent interest. Since the funds in this case can be traced, Mr. Gray is entitled to one half of the account as it existed at the time of the severance. Thus, Mr. Gray is entitled to one half of $35,141.08, or $17,570.54, plus interest earned on the latter figure while such fund remained with the credit union; from the date that such money was paid to the executor, Mr. Gray is entitled to interest at the legal rate.

By the Court. — Judgment reversed, and cause remanded for proceedings consistent with this opinion.


author: Wilkie, J.

text:
    Estate of Sykes: Greenwood Cemetery Association, Appellant, v. Department of Taxation, Respondent.

      March 4

    March 30, 1965.

      For the appellant-there was a brief by Nowlan, Mouat, Lovejoy, McGuire & Wood of Janesville, and oral argument by Hiram M. Nowlan, Jr.

      For the respondent the cause was argued by E. Weston Wood, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and Harold H. Persons, assistant attorney general, attorneys, and Richard E. Williams, inheritance tax counsel, of counsel.
   Wilkie, J.

The issue presented on this appeal is whether two bequests' to a Wisconsin voluntary cemetery association, one for the purpose of erecting and maintaining a chapel and also for providing space for the temporary storage of coffins, and the other for the purpose of erecting a chapel, maintaining that chapel, and for acquiring additional land for cemetery purposes, are wholly exempt from inheritance taxes.

“Taxation is the rule laid down, and exemption is the exception. Exemption does not exist unless the transfer comes strictly within the limits of the exception.”

Sec. 72.045 (4), Stats., exempts from inheritance taxation a bequest not to exceed $500 to the cemetery in which the decedent is buried. It is undisputed, then, that $500 of the total bequest is exempt. Appellant submits, however, that since both bequests were for the purpose of constructing a chapel, sec. 72.04 (1), which exempts “[a] 11 property transferred to . . . voluntary associations organized under the laws of this state, solely for religious . . . purposes, . . . shall be exempt . . .” is applicable.

Even if the bequests were destined solely for religious ends, this appeal is controlled by the ruling in Will of Volkering. In Volkering, the decedent left $65,000 in trust with the income to be paid to his sisters during their lives. After their deaths, as much of the income as necessary was to be used to maintain the family burial lot with the balance accumulated to erect and maintain a $20,000 monument on the burial lot. Any excess income was to be paid to the cemetery association for improvement and beautification purposes. The case arose in 1945 and under sec. 72.01, Stats., of the then existing statutes, a tax was imposed on any transfers of property excepting, among others, transfers to “voluntary associations organized solely for religious, charitable or educational purposes.” After stating that the bequest would clearly be taxable if sec. 72.01 was the only applicable statute, the court went on to discuss the effect of secs. 72.04 (1) and 72.04 (7), and said:

“If the transfer to the trustees is to be exempt at all, it must be under sec. 72.04 (1), Stats., which provides that property transferred to individuals as trustees, ‘in trust exclusively for public, religious, humane, charitable, educational or municipal purposes in this state, . . . shall be exempt . . . .’ Under this section, considered alone, it might seem that the transfer to the trustees, including the bequest eventually to be paid to the Oak Grove Cemetery Association, could be exempt if all or any of its separable purposes could be interpreted to be charitable.
“However, it is especially sec. 72.04 (7), Stats. 1945, which controls the result in this case. It precludes any interpretation which might bring appellants within other statutes, including sec. 157.11 (9) (g), relating to charitable associations. It specifically provides, ‘Bequests not to exceed five hundred dollars for the care and maintenance of the burial lot of the deceased and bequests not to exceed five hundred dollars to the cemetery in which the said deceased is buried, and bequests not to exceed one thousand dollars for the performance of a religious purpose or religious service for or in behalf of the deceased or for or in behalf of any person named in his will, shall be exempt from any inheritance tax.’

Volkering was cited with approval in Estate of Miller where the deceased left an amount exceeding the statutory limit for Masses for herself, husband, and deceased relatives. The court stated:

“Even assuming that these bequests come within the provisions of both statutes, it follows that the application of sec. 72.01 is general, whereas sec. 72.04 ( 7) deals with them specifically. Such circumstances would bring into effect the well-established rule that when both a general statute and a specific statute relate to the same subject matter, the specific statute is controlling. See Estate of Aylward (1929), 199 Wis. 347, 226 N. W. 311.”

In 1953 the inheritance-tax statutes were amended. The exemption language was removed entirely from sec. 72.01, Stats., leaving just a broad command to tax any transfers. Changes were also made in sec. 72.04, the section providing for “exemptions.” The old sec. 72.04 was altered by deleting from the introductory paragraph the reference to taking the exemption out of the first $25,000. The phrase “or voluntary associations” was added to sec. 72.04 (1). A new subsection, 72.045, was created to embrace those transfers to be taken out of the first $25,000. Several subsections of old sec. 72.04 were simply renumbered without substantive change so as to become subsections of the new 72.045. Sec. 72.04 (7), which was the controlling statute in Volkering and Miller, became sec. 72.045 (4).

Appellant argues that since the result in Volkering was reached only because sec. 72.04, Stats., contained both a specific and a general exemption provision, the removal of specific sub. (7) indicates that the legislature was attempting to limit the holding of Volkering and Miller. It is unrealistic to assume that the legislature would alter the clear and commanding rule of Volkering in such a subtle and sophisticated fashion. There is nothing in the legislative file on ch. 499 to indicate that the legislature had any intention to alter the rule of Volkering. Further, the presence of both provisions in one section is not necessary for the application of the specific-controls-general doctrine; the provisions can be in separate sections.

Appellant also contends that retaining of exemptions which are public in character in sec. 72.04, Stats., while grouping exemptions to individual persons in a new section — 72.045—indicates a legislative desire to treat devises to a cemetery association, which is public rather than personal, under sec. 72.04 (1). Not only does this argument ignore the rule that specific provisions in one section control similar general provisions in another section, but the basic premise that the statutes are now clearly divided into “public” and “personal” exemptions is fallacious. Sub. (4) of sec. 72.045 — the so-called personal exemption section— deals specifically with devises directly to cemeteries rather than individuals. Thus, this provision can hardly be construed as involving bequests solely to persons or for the benefit of specified individuals.

That sec. 72.04 (1), Stats., was amended so as to exclude transfers to “voluntary associations” for religious, humane, charitable, or educational purposes does not mean that the legislature intended to allow unlimited gifts to cemetery associations. Pre-1953 secs. 72.01 and 72.04 (1) contained general exemption provisions which were substantially identical insofar as listing organisations to which tax free transfers could be made, except that sec. 72.01 exempted certain transfers made to voluntary associations which sec. 72.04 (1) did not. The effect of the 1953 amendment, which removed the exemption provision from sec. 72.01 but left intact the corresponding provision in sec. 72.04(1)— although changing sec. 72.04 in other respects — was to make the new sec. 72.04 (1) comparable to old sec. 72.01, except as to voluntary associations. Thus, sec. 72.04 (1) had to be amended to provide for exemptions to “voluntary associations” for specified purposes to keep in step with the prior law.

A careful analysis of the 1953 legislation indicates, as aptly put by the trial court, that the changes were made as a matter of good housekeeping rather than to alter the Volkering rule. Prior to 1953, all exemptions allowed under the subsections of sec. 72.04, Stats., were to be taken out of the first $25,000, although it was obvious that some of the exemptions were unlimited in amount. For example, a transfer in trust to any corporation, organization, association, or foundation for the benefit of a municipal body was fully exempt. Other exemptions were limited in amount. Thus it is apparent that sec. 72.04 contained an express contradiction in terms. Sec. 72.045, relating to exemptions to be taken from the first $25,000, was created and the similar language was deleted from sec. 72.04. The subsections of sec. 72.04, which dealt with partial exemptions, were renumbered without substantive change as subsections of sec. 72.045. The effect of the statutory revision, then, was to separate the fully exempt from the partially exempt bequests. A relocating of sections and subsections within a particular chapter, without substantive change, cannot be interpreted as compelling a limitation on a rule clearly promulgated in two cases.

Appellant next suggests that since the bequest for a monument in Volkering was not for a charitable or religious purpose, the gift would not have been exempt regardless of the existence of sec. 72.04 (7), Stats. 1945, and that, therefore, the ruling of the case is not controlling because it is merely dictum. Actually, the bequest in that case was for a dual purpose: The monument and the beautification of the cemetery. After recognizing that the devise to the cemetery for general improvement could be exempt under sec. 72.04 (1), if this use could be interpreted as charitable, the court decided that the specific provisions of sec. 72.04 (7) controlled nonetheless. Thus the holding of Volkering is not dictum and that holding is controlling here.

Because of the decisive impact of Volkering on this appeal, it is not necessary for us to consider any further arguments pertaining to the alleged purpose of the association or of the bequests.

By the Court. — Order affirmed.

        Will of Chafin (1933), 210 Wis. 675, 680, 247 N. W. 325.

       72.045 (4) “Bequests not to exceed $500 for the care and maintenance of the burial lot of the deceased and bequests not to exceed $500 to the cemetery in which the said deceased is buried, . . .”

       (1948), 253 Wis. 186, 33 N. W. (2d) 263.

        Will of Volkering, supra, footnote 3, at page 190.

       (1952), 261 Wis. 534, 53 N. W. (2d) 172.

       Id. at page 536.

       Ch. 499, Laws of 1953.

         E.g., Hite v. Keene (1909), 137 Wis. 625, 119 N. W. 303.

       Sec. 72.04 (la), Stats. 1945.


author: Beilfuss, J.

text:
    Tyrrell, Appellant, v. Industrial Commission and others, Respondents.

      March 4

    March 30, 1965.

      For the appellant there were briefs by Bonk, Luts & Hertel of Chilton, and oral argument by Robert W. Luts.

    For the respondent Industrial Commission there was a brief by Bronson C. La Follette, attorney general, and Beatrice Lampert, assistant attorney general.
    For the respondents De Laval Separator Company and American Surety Company there was a brief by Kluwin, Dunphy, Hankin & Hayes of Milwaukee, and oral argument by John A. Kluwin.

   Beilfuss, J.

Is there any credible evidence or reasonable inference drawn therefrom to support the finding of the Industrial Commission that at the time of the accident the employee, Tyrrell, “had deviated for a personal purpose and had not returned to the normal route to be used in his work.” Under the familiar rule, if there is such evidence in the record the finding of the commission must be affirmed.

The statute involved is sec. 102.03 (1) (f), Stats., which provides:

“Every employe whose employment requires him to travel shall be deemed to be performing service growing out of and incidental to his employment at all times while on a trip, except when engaged in a deviation for a private or personal purpose. Acts reasonably necessary for living or incidental thereto shall not be regarded as such a deviation. Any accident or disease arising out of a hazard of such service shall be deemed to arise out of his employment.”

The material portions of the examiners’ findings of fact are as follows:

“. . . that instead of stopping in Iron River where lodging and food were available, the deceased, for personal reasons, deviated from the normal route and drove to Nelma, Wisconsin, where he stopped at a tavern for drinks; that there were no accommodations for food or lodging at Nelma; . . . that the deceased had deviated for a personal purpose and had not returned to the normal route to be used in his work; . . .”

During the week Tyrrell customarily worked at any time when he could see his customers. He was killed within his sales territory. This is sufficient to raise the presumption that he was working within the scope of his employment. This presumption will continue in the absence of evidence to the contrary. Armstrong v. Industrial Comm. (1948), 254 Wis. 174, 35 N. W. (2d) 212; Racine County v. Industrial Comm. (1933), 210 Wis. 315, 246 N. W. 303. The presumption is rebuttable and drops out when evidence to the contrary is presented. In Armstrong v. Industrial Comm., supra, this court was presented with a comparable factual situation:

“In addition to contentions based upon the facts it is contended by applicant that sec. 102.03 (1) (f), Stats. 1945, puts upon the employer the burden of proving the fact of deviation from the course of employment. It is further contended that, upon the introduction of evidence that deceased was in the service of his employer when last seen, applicant is entitled to a presumption that he continued in his employment and that he was so engaged at the time of his death.
“We do not find it necessary to discuss or determine the merits of these contentions because we conclude that, even if the burden of proof is upon the employer to show deviation, and even though the applicant is entitled to the presumption just referred to, there is evidence to support the commission’s finding that decedent at the time of his accidental drowning was not performing services growing out of and incidental to his employment. It is obvious that evidence sufficient to sustain this burden is sufficient to rebut the presumption. In commenting upon the evidence it should be kept clearly in mind that the commission was not seeking a complete explanation of the circumstances of decedent’s death. Had this been the objective it is probably true that such an explanation could only be arrived at by guess. The issue is whether there is substantial evidence that at the time of his death Armstrong had deviated from his employment and was not performing services growing out of and incidental thereto.” (p. 178.)

There was no dealer located in or near Nelma. The testimony that Tyrrell intended to go to Armstrong Creek before Crystal Falls is not borne out by the record. Other than the testimony as to his intention, there is no evidence that Tyrrell actually went to Armstrong Creek. There is no evidence which would warrant an inference to that effect.

The examiners’ findings are silent as to whether Tyrrell went to Armstrong Creek. The trial court, in its memorandum opinion, determined that Tyrrell did not go there. The court said, however, that even if he had gone there, there would have been a deviation of at least nine miles. Tyrrell would have been'traveling west toward Nelma rather than north to Iron River.

The statement in Hansen v. Industrial Comm. (1951), 258 Wis. 623, 625, 46 N. W. (2d) 754:

“It would seem to follow that if all that can be learned about the injury from the circumstances and from the testimony of individuals would leave the matter within the realm of speculation, then he must be deemed to be within the scope of his employment. The inference arising from the employment controls unless there is evidence which overpowers that inference. . . .” (Emphasis added.)

is not appropos. The circumstances here do “overpower that inference.”

The appropriate test has been stated in Simons v. Industrial Comm. (1952), 262 Wis. 454, 456, 55 N. W. (2d) 358:

“ ‘The test is whether the servant has stepped aside from the business of his principal to accomplish an independent purpose of his own, or whether he was actuated by an intent to carry out his employment and to serve his master.’ ” [Case cited.]

Simons cited Barragar v. Industrial Comm. (1931), 205 Wis. 550, 238 N. W. 368:

“ ‘. . . it is essential, by some process or other to determine whether, at the outset, the trip in question was that of the employer or that of the employee. ... In case it is the employer’s trip and there are any detours for purely personal objectives, such detours must be separated from the main trip and the employee held to be outside the scope of his employment during such detour.’ ”

In respect to deviation, there must be a meaningful manifestation to engage in activities purely personal to the employee. Simons v. Industrial Comm., supra; Armstrong v. Industrial Comm., supra.

The factors principally overlooked by plaintiff are that the extent of deviation — be it walking a short distance, Armstrong v. Industrial Comm., supra, or a six-mile claimed deviation, Racine County v. Industrial Comm., supra-is not alone controlling. Deviation may be slight in terms of the length of time involved or distance traveled, but if the conduct of the employee is in furtherance of his own purposes and without the scope of his employment, the employer is not liable. Further, and most important, if there is a deviation the employee must return to his course of employment — the most reasonably direct route for traveling salesmen — at the time of the injury in order that recovery may be had. Employers Mut. Liability Ins. Co. v. Industrial Comm. (1939), 230 Wis. 670, 284 N. W. 548. Under any view of the evidence Tyrrell had not reached the route which had any bearing on his course of employment. Whether he had left Crystal Falls or Armstrong Creek it does not matter, for either highway leading to Iron River is more direct and a better road for travel. There is no evidence to show any purpose of his employer to be in or about Nelma. There is no evidence to show a trip with concurrent purposes, as in James v. Industrial Comm. (1962), 18 Wis. (2d) 239, 118 N.W. (2d) 185.

In Continental Casualty Co. v. Industrial Comm. (1965), 26 Wis. (2d) 470, 132 N. W. (2d) 584, the majority of this court was of the opinion that, under the facts presented, a corporate officer was an employee of the corporation in which he was a major shareholder, that his trip was predominantly for business purposes, and the purpose of the hunting trip, of which he was a party, was incidental to the main purpose of the trip. Recovery was allowed. The minority of the court viewed the facts as indicating a trip with two purposes, which purposes were not concurrent, citing James v. Industrial Comm., supra.

The entire court was in agreement as to the rule that where the employment formed no part of the trip, if the journey would have proceeded in the absence of any business errand, the person is acting without the scope of his employment. The division of the court was over what inferences the facts would support.

In the instant case it is clear that under either view expressed in the Continental Casualty Co. Case, supra, Tyrrell was not acting within the scope of his employment because the predominant purpose of his journey to Nelma was not business orientated.

The finding of the commission, as confirmed by the circuit court, to the effect that Tyrrell had deviated for a personal purpose and had not returned to his normal route, is supported by the credible evidence and reasonable inference to be drawn therefrom. The ultimate conclusion that Tyrrell was not fatally injured in the course of and incidental to his employment, and that the accident causing his injury did not arise out of his employment, must be upheld.

By the Court. — Judgment affirmed.

         Grant County Service Bureau v. Industrial Comm. (1964), 25 Wis. (2d) 579, 131 N. W. (2d) 293; Milwaukee v. Industrial Comm. (1963), 21 Wis. (2d) 129, 124 N. W. (2d) 112; Indianhead Truck Lines v. Industrial Comm. (1962), 17 Wis. (2d) 562, 117 N. W. (2d) 679; Schuh v. Industrial Comm. (1958), 2 Wis. (2d) 611, 87 N. W. (2d) 256; Unruh v. Industrial Comm. (1959), 8 Wis. (2d) 394, 99 N. W. (2d) 182.