author: Hallows, J.

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

      November 1

    November 30, 1965.

      For the plaintiff in error there was a brief and oral argument by Irving D. Gaines of Milwaukee.
    For the defendant in error the cause was argued by Gerald P. Boyle, assistant district attorney of Milwaukee county, with whom on the brief were Bronson C. La Fol-lette, attorney general, Hugh R. O’Connell, district attorney, and Ben J. Wiener, deputy district attorney.
   Hallows, J.

The first issue raised is whether the accused was denied his constitutional right to have the assistance of counsel prior to giving the confessions to the police. It is argued the police denied the accused the right to counsel by refusing to let him contact his son-in-law and give him the card with an attorney’s name, address, and telephone number on it. There is testimony no such incident happened and neither the son-in-law testified nor was the slip of paper put in evidence. Nor was it explained how he would have on his person ready for the occasion a card or slip of paper with an attorney’s name, address, and telephone number thereon. There is positive testimony the accused never communicated to the detective in whose custody he was that he wanted to talk to his son-in-law or wanted an attorney. The request for an attorney was not proven. Such a request, however, need not be a formal one, but the desire to seek or have the advice of counsel must be communicated in some manner to him who has custody of the accused before it can be said there was a denial of counsel.

It is argued that even though a request for counsel was not proven, nevertheless the accused was entitled to counsel at the time of interrogation at the safety building under the doctrine of Escobedo v. Illinois (1964), 378 U. S. 478, 84 Sup. Ct. 1758, 12 L. Ed. (2d) 977, because he was then a suspect. This court is now asked to re-examine its interpretation of that decision and hold that when the interrogation by the police reaches the point where it becomes accusatorial in nature the accused is entitled to the assistance of counsel, whether requested or not, and statements taken by the police in the absence of counsel are inadmissible in evidence at the trial even though they may be voluntarily given.

In Browne v. State (1964), 24 Wis. (2d) 491, 129 N. W. (2d) 175, 131 N. W. (2d) 169, certiorari denied in 379 U. S. 1004, 85 Sup. Ct. 730, 13 L. Ed. (2d) 706, we distinguished Escobedo* and confined it to its facts. It is true Justice White in his dissenting opinion, page 495, pointed out the decision was “another major step in the direction of the goal which the Court seemingly has in mind — to bar from evidence all admissions obtained from an individual suspected of crime, whether involuntarily made or not.” However, we were unwilling to add another step and extend Escobedo to the facts of the Browne Case where no request had been made for counsel. We further pointed out that in Holt v. State (1962), 17 Wis. (2d) 468, 479, 117 N. W. (2d) 626, we stated there was no hard-and-fast rule that an accused must be informed by the police of his constitutional right not to incriminate himself as a condition precedent to admission into evidence of admissions or confessions made to the police and the failure to so advise alone was not sufficient upon which to ground inadmissibility, but might be under Escobedo if coupled with other circumstances.

In State ex rel. Goodchild v. Burke (1965), 27 Wis. (2d) 244, 133 N. W. (2d) 753, we re-examined our position in respect to Escobedo, especially as that case was interpreted by People v. Dorado (1965), 42 Cal. Rptr. 169, 398 Pac. (2d) 361. We concluded that Dorado pushed the outer limits of Escobedo and extended it to a case where no request for counsel was made during the interrogation. We unequivocally rejected the Dorado interpretation of Escobedo.

Since that decision several other courts have followed Dorado• and we are asked to reconsider our position. Recently, in State v. Neely (1965), 239 Or. 487, 395 Pac. (2d) 557, 398 Pac. (2d) 482, the Oregon court applied Escobedo to a situation where the accused was not advised of his right to remain silent prior to the police taking a confession from him. Likewise, in United States ex rel. Russo v. New Jersey (3d Cir. 1965), 351 Fed. (2d) 429, that court interpreted Escobedo to require counsel for the suspect when the interrogation process shifted from the investigatory to the accusatory stage unless intelligently waived by the suspect and such waiver was not to be presumed from the mere failure to request. In a similar vein, Escobedo has been construed by State v. Mendes (R. I. 1965), 210 Atl. (2d) 50. These cases represent what is known as the soft approach and go beyond the holding of Escobedo and attempt to forecast what the United States supreme court might decide in the future.

On the other hand the majority of the courts which has considered the Escobedo problem has confined its application to the facts of that case as did this court and has required a request for counsel to be made by the accused. United States v. Childress (7th Cir. 1965), 347 Fed. (2d) 448; Edwards v. Holman (5th Cir. 1965), 342 Fed. (2d) 679; State v. Worley (1965), 178 Neb. 232, 132 N. W. (2d) 764; King v. State (Del. 1965), 212 Atl. (2d) 722; People v. Hartgraves (1964), 31 Ill. (2d) 325, 202 N. E. (2d) 33, certiorari denied, 380 U. S. 961, 85 Sup. Ct. 1024, 14 L. Ed. (2d) 152; Sturgis v. State (1964), 235 Md. 343, 201 Atl. (2d) 681; State v. Scanlon (1964), 84 N. J. Super. 427, 202 Atl. (2d) 448; People v. Gunner (1965), 15 N. Y. (2d) 226, 205 N. E. (2d) 852; United States v. Cone (2d Cir. 1965), 354 Fed. (2d) 119; United States v. Robinson (2d Cir. 1965), 354 Fed. (2d) 109.

We have re-examined the arguments for the extension of Escobedo, namely, that it is unfair and not due process under our accusatorial system to admit in evidence a statement from one who might be unknowledgeable of his right to remain silent or to request the aid of counsel; that the new concept of the Fourteenth amendment due-process clause stresses greater reliance on the presence or absence of counsel as a factor in determining the volun-tariness of the confession; and that the request for counsel requirement favors those who are knowledgeable and prejudices those who are ignorant and indigent. We are aware of the expansion of the Sixth amendment and its protection from the assistance of counsel for the defense in criminal prosecutions to the aid of counsel in the interrogation process when the focus is shifted to a particular suspect.

We have heard no reasons yet why advice given by law-enforcement officers to an accused of his constitutional right to remain silent and to aid of counsel, and that whatever he may say might be used against him upon the trial does not adequately take the place of the aid of counsel at the accusatorial stage of investigation. Nor have we been given any enlightenment if counsel is absolutely necessary at that stage of the investigation how as a practical matter an indigent is going to be assigned counsel unless counsel is going to be assigned automatically upon every arrest. Until the United States supreme court gives us more guidance, we are inclined to stay with our own decisions and not create additional problems by extending Escobedo beyond its facts.

The accused contends his confession was coerced and thus involuntary and its admission was a violation of his right against self-incrimination guaranteed by the Fifth amendment to the United States constitution. The trial court found the confessions were not only trustworthy but “freely and voluntarily given and without any lack of due process so far as fully apprising him of his constitutional rights not to incriminate himself.” Because of this finding by the court there was no constitutional procedural defect as was involved in Jackson v. Denno (1964), 378 U. S. 368, 84 Sup. Ct. 1774, 12 L. Ed. (2d) 908; and State ex rel. Goodchild v. Burke (1965), 27 Wis. (2d) 244, 133 N. W. (2d) 753. In State v. Hoyt (1964), 21 Wis. (2d) 284, 124 N. W. (2d) 47, 128 N. W. (2d) 645, we pointed out a confession to be saved from constitutional contamination must be the result of a deliberateness of choice under the decisions of the United States supreme court. This concept that a confession to be admissible in evidence must be the voluntary product of a free and unconstrained will was followed in Pulaski v. State (1964), 24 Wis. (2d) 450, 129 N. W. (2d) 204, and State v. Brown (1964), 25 Wis. (2d) 413, 130 N. W. (2d) 760. Although the rule of voluntariness is easy to state, the determination of what is a voluntary confession in a given fact situation may be difficult. In evaluating the facts for such purpose, the principle adopted by the United States supreme court is to consider the “totality of the circumstances” — all the facts surrounding the making of the confession. Fikes v. Alabama (1957), 352 U. S. 191, 77 Sup. Ct. 281, 1 L. Ed. (2d) 246.

Many of the facts urged in the instant case as constituting psychological factors of coercion were made and considered in Pulaski v. State, supra. However, each case must be considered on its particular combination of facts. Here, it is claimed the accused was held incommunicado from the time of his arrest approximately 4:30 p. m. until he confessed about 11:30 p. m.; during which time he was not given any food or drink and was harassed and browbeaten by numerous detectives who continuously shuffled in and out of the interrogation room which was small in size. It is argued he was small in stature, being five feet four inches tall and by contrast the detective primarily in charge of the interrogation was tall and heavy, had only finished two years of Boys’ Technical High School, was fifty-three years of age, wore glasses because of blindness in one eye, weighed 130 pounds, and was an unemployed electrician. It is also argued that because by 11:30 that night he was so exhausted and wanted to get some sleep, and because of pressure by the detectives and of a threat of physical harm he finally confessed but did not write out the confession.

On the contrary, it is quite without dispute that prior to his first confession he had been advised of his rights to remain silent and that what he said could be used against him in court. The first occasion was when he was in the squad car en route to the safety building and the other about one and a half hours later before one of the detectives commenced to interrogate him. On cross-examination the accused admitted he was offered a sandwich and he refused it. He now claims no coffee or water was offered to him. But the testimony shows the accused never asked for or requested anything to drink. He was allowed to smoke. Only two detectives questioned the accused at a time and there was but one substitution. This hardly amounts to questioning in relays. The questioning at the safety building did not extend over any unreasonable period of time and was broken up by a visit to the morgue. We find no evidence of any protracted or systematic questioning of the accused.

A handwriting expert and the two detectives testified the accused wrote his own confession. The threat of physical harm of being punched in the mouth unless he told the truth was denied by the detectives. The accused testified at his trial the detectives were not rough on him. Considering all the circumstances, we do not find the accused, a man of fifty-three years of age, having had two years in high school and a trade, who wrote out his confession at 11:30 at night after some five hours of questioning was so overborne by the police as to make his confession involuntary. If the interrogation in this case is constitutionally forbidden, then hardly any suspect could be constitutionally interrogated by the police.

It is argued the trial court had a duty to submit a lesser degree of murder with its submission of first-degree murder and not guilty even though the accused did not request a lesser degree offense and specifically requested that no lesser degree be submitted. Prior to instructing the jury the accused personally and his counsel both stated to the court they wanted only the questions of first-degree murder and of not guilty to be submitted to the jury. The district attorney stated he would not request the submission of a lesser degree of murder. In spite of these facts it is contended it was reversible error not to submit all the degrees of murder which could be properly submitted upon the evidence, relying on Zenou v. State (1958), 4 Wis. (2d) 655, 91 N. W. (2d) 208. However, Zenou does not hold that proposition. Some states have held that a court has the duty to instruct not only as to the offense charged but as to such lesser offenses which defendant might be found guilty of under the information and evidence, although there is no request made for such submission. However, the majority of states holds the failure to instruct on a lesser included offense is not a ground for reversal in the absence of a request for such instruction.

From an early date the rule in Wisconsin has been that unless a request is made for an instruction of the lesser included offense it is not error for the trial court not to give the instruction on its own motion even though the evidence would sustain it. Odette v. State (1895), 90 Wis. 258, 62 N. W. 1054; Frank v. State (1896), 94 Wis. 211, 68 N. W. 657. This rule has been consistently followed up to the present. Sullivan v. State (1898), 100 Wis. 283, 75 N. W. 956; State v. Scherr (1943), 243 Wis. 65, 9 N. W. (2d) 117; Van Rite v. State (1941), 237 Wis. 212, 295 N. W. 688; Smith v. State (1946), 248 Wis. 399, 21 N. W. (2d) 662. In some of the older cases it is stated the failure to give an instruction on a lesser offense although not requested is not an error which can be complained of because it is not prejudicial. See Sweda v. State (1932), 206 Wis. 617, 240 N. W. 369, citing Fertig v. State (1898), 100 Wis. 301, 75 N. W. 960. See also Hempton v. State (1901), 111 Wis. 127, 86 N. W. 596, for the view that an instruction restricted to first-degree murder and not guilty is favorable rather than prejudicial to the accused if there is evidence on which he might be convicted of a lesser offense.

However, this view of prejudice might be doubted, and whether or not the lesser offense is requested would seem to be more a matter of trial strategy and waiver. The determining of instructions is not entirely within the control of the defense because the court may without any request instruct on the degrees of the offense the evidence will sustain and the state also has an interest in the matter and the right to request instructions. Thus, it would be error for the trial court not to submit the lesser included offense in an instruction if the evidence would sustain it and it is requested either by the state or by the accused.

Even if there were a duty in the absence of a request upon the trial court to instruct on the lesser included offense, the defendant has forfeited his right to assign the failure to so instruct as error because of the specific request that no such instruction should be given. Such action was not only a matter of trial tactics by the accused’s counsel but actively participated in and dictated by the accused himself who wanted to gamble on an all- or-nothing basis. Because he lost he cannot now assert and blame the trial judge for allowing him to intelligently and knowingly make the choice.

The accused argues the trial court erred in admitting state Exhibits 6 and 7 into evidence. These exhibits are photographs taken by the police of the body of the victim as they found it on the floor in the doorway between the kitchen and the living room when they entered the house excepting the face and the legs to a point below the knees are covered. It is true a scissors is protruding from the body but it would appear to be embedded in clothing covering the body.

We do not find these photos to be gruesome or inflammatory in nature. They were properly admitted to show the position of the corpse at the scene of the crime. It is discretionary with the trial court to admit photographs to aid the jury in securing a clear idea of a material situation when the photographs better show that situation than does the testimony of witnesses. Baxter v. Chicago & N. W. R. Co. (1899), 104 Wis. 307, 80 N. W. 644; Baraboo v. Excelsior Creamery Co. (1920), 171 Wis. 242, 177 N. W. 36; State v. Carlson (1958), 5 Wis. (2d) 595, 93 N. W. (2d) 354; Anno. Admissibility of photograph of corpse in prosecuting for homicide or civil action for causing death, 73 A. L. R. (2d) 769.

It is argued that because Exhibits 8, 9 and 10 were properly excluded by the trial court the admissions of Exhibits 6 and 7 were inconsistent. However, Exhibits 8, 9 and 10 show just the upper part of the body with its head smashed in, hair disarrayed and matted with blood and a knife stuck in the throat. These pictures taken with the testimony are gruesome and inflammatory and their admission unnecessary. It does not follow, therefore, as argued by the accused that because these pictures were not admitted in evidence that Exhibits 6 and 7 should not have been. Exhibits 8, 9 and 10 were excluded under the corollary to the rule in the Baxter Case that “where photographs are not substantially necessary or instructive to show material facts or conditions, and are of such a character as to arouse sympathy or indignation, or divert the minds of the jury to improper or irrelevant considerations, they should be excluded.” Selleck v. Janesville (1899), 104 Wis. 570, 575, 80 N. W. 944.

We find no merit in the argument that the continued effort on the part of the state to have Exhibits 8, 9 and 10 introduced was prejudicial, because the jury never saw these photographs and it can hardly be said that offering evidence, the nature of which is unknown to the jury, is error.

By the Court. — Judgment affirmed.

       In September, 1965, the Pennsylvania supreme court reversed its prior decisions and altered its interpretation of Escobedo to conform with Russo since for all practical purposes the 3d circuit court of appeals was the ultimate forum in Pennsylvania. See Commonwealth v. Negri (1965), 419 Pa. 117, 213 Atl. (2d) 670. However, the New Jersey supreme court refused to alter its interpretation of Escobedo and to adopt the Russo interpretation. See State v. Coleman (1965), 46 N. J. 16, 214 Atl. (2d) 393.

       On November 22, 1965, the United States supreme court decided it would take jurisdiction of four cases which involve or may involve the issue presented here, i. e., 419 Misc. Miranda v. Arizona; 397 Misc. Vignera v. New York; 80 Misc. Westover v. United States; 205 Misc. Johnson v. New Jersey.

       Counsel on this appeal was not the trial attorney.

       See State v. Littlejohn (1947), 356 Mo. 1052, 204 S. W. (2d) 750; State v. Smith (1946), 161 Kan. 230, 167 Pac. (2d) 594;
        State v. Fouts (1950), 169 Kan. 686, 221 Pac. (2d) 841; State v. Hicks (1954), 241 N. C. 156, 84 S. E. (2d) 545; Smith v. State (1946), 83 Okla. Crim. 209, 175 Pac. (2d) 348; People v. Morrison (1964), 228 Cal. App. (2d) 707, 39 Cal. Rptr. 874.

        Johnson v. State (1949), 214 Ark. 902, 218 S. W. (2d) 687; People v. Chessman (1951), 38 Cal. (2d) 166, 238 Pac. (2d) 1001; People v. Harrison (1946), 395 Ill. 463, 70 N. E. (2d) 596; People v. Weisberg (1947), 396 Ill. 412, 71 N. E. (2d) 671; State v. Scott (1951), 72 Idaho 202, 239 Pac. (2d) 258; State v. Leahy (1952), 243 Iowa 959, 54 N. W. (2d) 447; Russell v. State (Miss. 1951), 51 So. (2d) 199; Mulder v. State (1950), 152 Neb. 795, 42 N. W. (2d) 858; State v. Ellis (1951), 61 Ohio L. Abs. 434, 105 N. E. (2d) 65; State v. Nodine (1953), 198 Or. 679, 259 Pac. (2d) 1056; State v. Mitchell (1955), 3 Utah (2d) 70, 278 Pac. (2d) 618.


source: Caselaw Access Project

author: Gordon, J.

license: Public Domain

text:
    Huss, Respondent, v. Vande Hey and another, Appellants.

      November 1

    November 30, 1965.

      For the appellants there was a brief by Benton, Bosser, Fulton, Menn & Nehs, attorneys, and Peter S. Nelson of counsel, all of Appleton, and oral argument by Mr. Nelson.

    For the respondent there was a brief by Esler & Green of Kaukauna, and oral argument by John E. Esler.

   Gordon, J.

Evidence as to< Future Pain and Suffering.

In its instructions, the trial court informed the jurors that in determining the damages they could consider future pain and suffering. It is the contention of the appellants on this appeal that there was no adequate medical evidence upon which the jury could make a finding of future pain and suffering.

The appellants also point out that the trial court declined to instruct the jury regarding the absence of any permanent injuries. Here, too, it is urged by the appellants that the record is devoid of medical proof that any of Mr. Huss’ injuries would be permanent.

In Diemel v. Weirich (1953), 264 Wis. 265, 58 N. W. (2d) 651, this court asserted that with regard to an injury which is subjective in character it is necessary that damages for a permanent injury or for future pain and suffering be supported by the opinion of a medical expert which is based upon either medical certainty or medical probability. Said the court, at page 268:

“In the absence of such expert testimony . . . the jury should be instructed that no damages may be allowed for future pain and suffering.”

This rule has been followed in a number of subsequent cases. Rogers v. Adams (1963), 19 Wis. (2d) 141, 146, 119 N. W. (2d) 349; Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis. (2d) 568, 572, 117 N. W. (2d) 660; Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 84, 102 N. W. (2d) 393; Peterson v. Western Casualty & Surety Co. (1958), 5 Wis. (2d) 535, 540, 93 N. W. (2d) 433.

Mr. Huss’ complaints were clearly of the type which are governed by the rule in Diemel v. Weirich. He complained of pain in his back and neck. These are the types of injuries as to which the prognostications of one who is not medically qualified are insufficient to support a judgment for damages either as to permanence or as to future pain and suffering.

There is no direct declaration on the part of any medical witness concerning the medical probability as to either permanent injury or future pain and suffering. Dr. Cherkasky was asked his prognosis as to Mr. Huss’ condition and gave the following response:

“A prognosis as far as this condition is concerned is guarded, and what I mean by guarded is that it can be aggravated, as I said before, by accidents, by overwork, by sudden twists or falls — any of those things. He can have pain again.”

The words “this condition” may relate to Mr. Huss’ condition of hypertrophic arthritis; however, even assuming they relate exclusively to the condition which was caused by the accident, we are persuaded that this does not constitute a sufficiently direct statement to qualify within the rule of the Diemei Case. Even with the benefit of the foregoing opinion on the part of Dr. Cherkasky, the jurors would have to engage in speculation regarding the likelihood of Mr. Huss’ enduring pain and suffering in the future from this accident, and they would also have to speculate on the length of time that it would continue.

Although Dr. Cherkasky also testified that at the time of the trial his patient still had “some residual pain,” the doctor did not suggest that such continued residual pain constituted a permanent circumstance.

The jury verdict allowed $4,750 “for personal injuries.” There was no delineation as to the component parts of the jury’s figure. Thus, it is impossible to determine whether any or some substantial part of such figure represented an allowance for future pain and suffering. There is applicable what this court said in Nelson v. Boulay Brothers Co. (1965), 27 Wis. (2d) 637, 644, 135 N. W. (2d) 254:

“Since the verdict included in the answer to the damage question an item which was legally erroneous, we conclude that there must be a new trial on the question of damages. While this court in Spleas v. Milwaukee & Suburban Transport Corp. (1963), 21 Wis. (2d) 635, 124 N. W. (2d) 593, has extended the rule of Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393, to permit its use in cases in which the prejudicial error was confined to damages, we believe that in the instant case the wiser course is to order a retrial of the damage issue.”

It is our conclusion that there must be a new trial as to all issues in this case since there was insufficient medical evidence to support a verdict in which the jury may have included an allowance for future pain and suffering. If the medical proof offered in the new trial is no different from that presented in the case at bar, the trial court should instruct the jury that no award may be made for permanent injury or for future pain and suffering.

Admission of Hearsay Evidence.

The plaintiff had a Wassermann test while in the military service in 1943; this information was received into evidence when Mr. Huss gave his testimony and also when Dr. Cherkasky related the history given him by his patient. The testimony disclosed that bismuth injections were given to Mr. Huss for the treatment of possible lues.

If the bismuth injections were given to correct a luetic condition, this could have been a cause of his backaches, according to the medical testimony. The appellants objected to Dr. Cherkasky’s being permitted to testify as to what his patient was told by medical officers during military service as to the reason for the bismuth injections. If this objection were sustained, Dr. Cherkasky would have been foreclosed from giving a complete statement as to Mr. Huss’ medical history; particularly it would have barred the doctor from reporting that portion of the history which tended to attribute the apparently positive Wassermann test to malaria and also would have excluded the explanation that the bismuth injections were given only “to be on the safe side” in the event of the “possibility” of lues.

The statements by Mr. Huss and the portion of the testimony by Dr. Cherkasky as to what the coast guard physicians had told Mr. Huss are patently hearsay. However, having received into evidence a part of such history which showed that Mr. Huss had a positive Wassermann test during the war, it was within the court’s discretion to admit the additional statements concerning it.

A medical history by its inherent nature will frequently contain statements which are not actually within the probative knowledge of the patient. Nevertheless, if they are told to the physician for the purpose of treatment, they gain a quantum of trustworthiness; this makes them somewhat comparable to subjective complaints, which this court has held may be admissible under Ritter v. Coca-Cola Co. (1964), 24 Wis. (2d) 157, 128 N. W. (2d) 439.

In our opinion, having* admitted a portion of the medical history, it was appropriate under a concept of fair play to admit the balance thereof. Mr. Huss, in his direct examination, gave the same basic testimony concerning what he had been told by his military doctors. This constituted further authority for the trial court to admit the same evidence when offered by Dr. Cherkasky. Mader v. Boehm (1933), 213 Wis. 55, 59, 250 N. W. 854. We find no error in connection with the admission into evidence of Dr. Cherkasky’s testimony as to the medical history given him by his patient.

The court also admitted into evidence over objection the county clerk’s record as to the results of a premarital Wassermann test which had been administered to Mr. Huss by a private physician; the results of the state laboratory’s findings appeared on the report, and, in our opinion, such conclusion was not admissible in the face of a timely objection.

Counsel for the defendants was entitled to an opportunity to cross-examine the author of the report to challenge the accuracy of the conclusion. Such interrogation could not have been accomplished by cross-examining the county clerk. The right to scrutinize the report itself was not an effective substitute for cross-examination.

In Estate of Eannelli (1955), 269 Wis. 192, 212, 68 N. W. (2d) 791, this court observed that “conclusions Stated in official records are not admissible.” Voigt v. Voigt (1964), 22 Wis. (2d) 573, 578, 126 N. W. (2d) 543; Jacobson v. Bryan (1944), 244 Wis. 359, 368, 12 N. W. (2d) 789. See also Zweifel v. Milwaukee Automobile Mut. Ins. Co. (1965), 28 Wis. (2d) 249, 260, 137 N. W. (2d) 6. In our opinion, the admission of this report was erroneous. However, we do not consider that it went to a critical point in the case and therefore do not regard the error as prejudicial.

Damages for Physical Therapy Treatments.

Sec. 147.185 (1) (b), Stats., provides that a person may not perform physiotherapy unless he is licensed “by the board of medical examiners nor unless he practices under a prescription and the direct supervision of a person licensed to practice medicine and surgery.” In the instant case, physical therapy was rendered on some occasions by a nurse in Dr. Cherkasky’s office.

The appellants contend that the nurse did not qualify under the statute to render physical therapy because she was not licensed by the board of medical examiners and because some of the treatments were rendered by the nurse at times when Dr. Cherkasky was not personally present. Because of this, the appellants argue that the charges for such services are not lawful ones.

The appellants point to an opinion of the attorney general (44 Op. Atty. Gen. (1955), 99, 102) and urge that in order to render physical therapy one must be licensed and also be under the direct supervision of a physician. We reject such interpretation of the statute. We do not believe that the statute contemplates that one who is licensed by the board of medical examiners to practice physiotherapy must also perform under the direct supervision of a medical doctor; nor do we believe that the statute requires one who performs under the direct supervision of a medical doctor to have, in addition, a license from the board.

Whether the medical doctor is physically present or absent at the time physical therapy is rendered by a nurse in his office, the doctor is fully responsible for her conduct under the doctrine of respondeat superior. Yorston v. Pennell (1959), 397 Pa. 28, 153 Atl. (2d) 255; St. Paul-Mercury Indemnity Co. v. St. Joseph’s Hospital (1942), 212 Minn. 558, 4 N. W. (2d) 637. Cf. Fehrman v. Smirl (1964), 25 Wis. (2d) 645, 655, 131 N. W. (2d) 314. The services in the instant case were performed by a nurse at the direction of and as an aide to a licensed medical doctor, and we reject the appellants’ argument that the doctor’s charge for such services was unlawful.

By the Court. — Judgment reversed, and cause remanded for new trial.


author: Wilkie, J.

text:
    Wisconsin Employment Relations Board, Respondent, v. Mews, d/b/a Mews Ready Mix Corporation, Appellant.

      November 1

    November 30, 1965.

      For the appellant there was a brief by Joseph J. Shutkin, attorney, and Lorinczi & Weiss of counsel, all of Milwaukee, and oral argument by Mr. Shutkin.

    For the respondent the cause was argued by Beatrice Lamport, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.

       Motion for rehearing denied, without costs, on February 1, 1966.

   Wilkie, J.

There are four issues presented on this appeal:

First, can appellant raise alleged procedural defects in connection with the underlying order and enforcement judgment as a defense against the contempt judgment?

Second, can civil contempt proceedings be employed to enforce a judgment based on a collective-bargaining agreement?

Third, do the provisions of ch. 103, Stats., apply to a contempt proceeding for violation of a judgment entered under sec. 111.07 (7) ?

Fourth, did the trial court err in allowing evidence to be presented in the contempt proceedings ?

Defense to Contempt Judgment.

Pointing out that he was not present at the December 10, 1963, hearing when the complaint was amended so as to make him a party, appellant argues that the original order (March 25, 1964) was invalid as to him and that he cannot be found in contempt for failing to obey a judgment (May 20,1964) based on it. We do not consider the merits of this technical assault on the original order and enforcement judgment for the reason that Mews did not appeal from the judgment within the thirty days allowed by statute. Having failed to directly challenge the judgment which expressly named him as a party, appellant is now precluded from collaterally asserting its invalidity.

Because the appellant is foreclosed from challenging the enforcement judgment in the contempt proceedings it is unnecessary to consider whether or not he is barred from attacking the validity of the underlying order by his failure to seek review of that order within the thirty days allowed by statute.

Appellant was bound to obey the order and the judgment until they were reversed or modified by this court. Since no timely attempt was made to review either the order or the judgment their validity is assumed and the question of contempt turns on whether directions of the enforcement judgment were disregarded.

Availability of Contempt to Implement Enforcement Judgment.

Appellant argues that contempt proceedings will not even lie in this instance for several reasons:

First, that since the contempt judgment is based on a failure to make payments to the pension and welfare funds as required by the collective-bargaining agreement, appellant is being imprisoned for a debt arising out of a contract in violation of sec. 16, art. I of the Wisconsin constitution. This analysis ignores the fact that thirty days of the imprisonment were for the failure to discharge Schlei, which does not involve any payment of money, and that the second thirty-day sentence was for not making payments and for failing to submit certain records. Even if appellant could not be imprisoned for refusing to contribute to the two funds, he could be for not turning over the records.

In any event, this court has expressly held in In re Milburn that a statute permitting imprisonment for failing to comply with the mandate of a judgment was not repugnant to sec. 16, art. I of the constitution even though the judgment was for a debt arising out of a contract. There the court said:

“ Tt is true that the order relates to the debt evidenced by the judgment against the relator, but this in no way alters the fact that the imprisonment is for contempt, not for the debt. And the contempt does not consist in the relator’s neglect or refusal to pay the debt, but in his disobedience of the order directing him to hand over certain property to the receiver. The fact that the property in question is to be handed over for the purpose of being applied to the payment of the judgment, is in no way important. The commitment is, nevertheless, in no proper sense imprisonment for debt.’ ”

Second, that sec. 295.01 (3), Stats., permits contempt punishment only where executions will not lie to collect the sums owed. However, as previously discussed, even if it were error to cite Mews for contempt for not making the required payments to the fund, the contempt judgment could validly be based on appellant’s refusal to discharge Schlei and submit his books for examination.

Third, that the contempt action could not be brought when an accounting action was available as a remedy. However, it is apparent from an examination of the cases in this area that collective-bargaining contracts can be enforced through ch. Ill, Stats., even though they would have been enforceable by other remedies in a direct court action. For example, Tecumseh Products Co. v. Wisconsin Employment Relations Board, and General Drivers & Helpers Union v. Wisconsin Employment Relations Board, were both cases brought under ch. Ill and involved disputes turning on monetary claims. In General Drivers & Helpers Union, the court said:

“This court has passed upon cases in which the board has exercised jurisdiction to order the employer to pay money to designated employees. E. g., Wisconsin E. R. Board v. Gateway Glass Co. (1953), 265 Wis. 114, 60 N. W. (2d) 768. We recognize that in such cases the alleged unfair labor practice involved a contract which was still in force.
“This court is of the opinion that the legislature intended the W. E. R. B. to have the power to make orders for the payment of money notwithstanding the fact that the claimed unfair labor practice arose after the termination of the contract which was allegedly violated.”

Fourth, that since the May 20, 1964, judgment improperly extends the mandate that he submit his payroll for audit beyond March 25, 1964, when the order was entered, he cannot be held in contempt for disobeying it. While this contention is directed to the issue of the availability of contempt proceedings, it actually amounts to an attack on the validity of the enforcement judgment itself. The time for appealing that judgment has long since lapsed and appellant cannot now challenge indirectly what he did not attack directly.

Fifth, that the punishment is too drastic. The general rule is that since their primary function is to enforce a judgment, civil contempt proceedings are primarily remedial. However, there may be imprisonment in which case the “dominant character of the imprisonment is remedial and coercive, although a punitive effect may also result.” Appellant has not cooperated with either the board or the court in complying with the enforcement judgment of May 20, 1964. He failed to attend court hearings, was previously (July 3, 1964) found to be in contempt for refusing to obey the judgment, was found by the court to have kept Schlei in his employ after notifying the court that he had been discharged, and refused to comply with the other provisions of the order. The trial court, which had the benefit of first-hand observations, summed up appellant’s conduct in these words:

“Mr. Mews in his attitude with relation to the union and the pension fund and the welfare fund has been one in which he has had a chip on his shoulder. He was dealt with leniently the first time he was here. I thought then that this was the end of this case, that Mr. Mews would make up his mind that he was going to obey the orders and the judgment of this court but evidently he still persists in his defiance. He has received on this hearing every opportunity to explain why he has not given a modicum of cooperation and I am satisfied that he just will continue to persist in his defiance of the orders in his conviction that the union wants to put him out of business for which I find no basis at all and there is only one thing that this court can do and that’s impose a jail sentence. I have no ill will in my heart against him. He has just made up his mind that he is going to run things his own way and he isn’t going to get by with that.”

Thereupon the court announced his finding of contempt and imposed punishment by way of both imprisonment and costs. The court concluded:

“Now, I have made that to be forthwith and the payment of the costs. There are no strings attached to this. The day for purging is all over. This is under the section of the statute which has that finality. The other provision of the statute limits thirty days or such time as in which the party will comply.”

Thus, it is clear that the trial court imposed the sentence under the provisions of sec. 295.16, Stats., and not sec. 295.15. The imprisonment for sixty days was absolute and the appellant could not purge any portion thereof.

If citizens are to respect the courts, the parties must be able to employ civil contempt proceedings to aid in the enforcement of their adjudicated rights. Appellant’s intentional defiance of the court’s enforcement judgment and of the provisions of the first judgment finding him guilty of civil contempt cannot be condoned and the trial court’s finding that the appellant’s misconduct was “calculated to and did defeat, impede, and prejudice the rights and remedies of the Wisconsin Employment Eelations Board” is abundantly supported by the record of the proceedings in the trial court. Nevertheless, since Mews does still appear to have it within his power to perform those parts of the enforcement judgment directing him to submit payroll books and records and make payments into the designated fund, in accordance with the provisions of sec. 295.15, Stats., the court should have ordered any imprisonment of Mews for these failures only until he shall have performed the required acts or duties. As to the thirty-day imprisonment for his failure to discharge Schlei, rights have already been adversely affected by Mews’ failure to comply with the enforcement judgment, and the trial court was acting entirely within his authority (under sec. 295.16) to impose the jail sentence without any opportunity to Mews to purge himself on that count. The judgment assessed $100 costs against appellant and provided for imprisonment until such costs are paid. The court had full authority to do this.

Application of Chapter 103.

The present action was commenced against Mews Ready Mix Corporation (and later appellant personally) pursuant to ch. Ill, Stats., the Employment Peace Act, to correct alleged unfair labor practices. Appellant contends that the trial court overlooked the provisions of sec. 103.60 and sec. 103.61 in meting out punishment for contempt. This court has held that sec. 103.60, which spells out the rights of a person “charged with civil or criminal contempt for violation of a restraining order or injunction” and sec. 103.61, which establishes penalties for a contempt “specified in section 103.60,” are by their very terms not applicable to proceedings such as the ones in the present case, instigated under ch. 111.

Evidence.

Appellant contends that the circuit court exceeded its jurisdiction by hearing further evidence on the contempt matter. While it is true that evidence cannot be introduced in a proceeding to obtain a judgment of enforcement under sec. 111.07 (7), Stats., evidence can be presented to the court in a contempt action under ch. 295, to ascertain whether or not the enforcement judgment has been complied with.

By the Court. — Judgment reversed, and cause remanded for entry of new judgment modified in accordance with this opinion. No costs allowed on this appeal.

       Secs. 111.07 (7) and 102.25, Stats.

       Sec. 111.07 (8), Stats.

        Wisconsin Employment Relations Board v. Allis-Chalmers Workers’ Union (1946), 249 Wis. 590, 595, 596, 25 N. W. (2d) 425; Wisconsin Employment Relations Board v. Milk, etc., Union (1941), 238 Wis. 379, 400, 299 N. W. 31.

       “IMPRISONMENT FOR DEBT. Section 16. No person shall be imprisoned for debt arising out of or founded on a contract, expressed or implied.”

       (1883), 59 Wis. 24, 17 N. W. 965.

       Id. at page 33.

         “295.01 Contempt power op courts and judges. Every court . . . shall have power to punish by fine and imprisonment, or either, ... in the following cases:
      “(3) Parties to actions, . . . for the nonpayment of any sum of money ordered by such court to be paid in cases where by law executions cannot be awarded for the collection of such sum;

       (1964), 23 Wis. (2d) 118, 126 N. W. (2d) 520.

       (1963), 21 Wis. (2d) 242, 124 N. W. (2d) 123.

       Id. at page 249.

        Upper Lakes Shipping v. Seafarers’ International Union (1963), 22 Wis. (2d) 7, 125 N. W. (2d) 324.

         State ex rel. Rodd v. Verage (1922), 177 Wis. 295, 314, 187 N. W. 830; also cited in Upper Lakes Shipping v. Seafarers’ International Union, supra, footnote 11, at page 13.

       “295.16 Term op. In every other case, when no special provision is otherwise made by law, the defendant may be imprisoned for a reasonable time, not exceeding six months, and nntil the fine, if any, and the expenses of the proceedings are paid; and the duration of such imprisonment shall be expressed in the order and warrant of commitment.”

       “295.15 Imprisonment and order op. When the misconduct proved consists of an omission to perform some act or duty which is yet in the power of the defendant to perform he shall be imprisoned only until he shall have performed such act or duty and paid such fine as shall he imposed and the costs and expenses of the proceedings. In such case the order and warrant of commitment shall specify the act or duty to be performed and the amount of the fine and expenses to be paid.”

        Upper Lakes Shipping v. Seafarers’ International Union (1964), 23 Wis. (2d) 494, 511, 128 N. W. (2d) 73.

        Wisconsin Employment Relations Board v. Milk, etc., Union, supra, footnote 3; Wisconsin Employment Relations Board v. Allis-Chalmers Workers’ Union, supra, footnote 3.

        Wisconsin Employment Relations Board v. J. P. Cullen & Son (1948), 253 Wis. 105, 33 N. W. (2d) 182; Wisconsin Employment Relations Board v. Allis-Chalmers Workers’ Union (1948), 252 Wis. 436, 31 N. W. (2d) 772, 32 N. W. (2d) 190.

        Wisconsin Employment Relations Board v. United Automobile, Aircraft & Agricultural Implement Workers (1956), 271 Wis. 556, 74 N. W. (2d) 205.


author: Beilfuss, J.

text:
    Jacobson, Administrator de bonis non w. w. a., Plaintiff, v. Greyhound Corporation, Defendant and Appellant: Knight and another, Defendants: Clark County and another, Interpleaded Defendants and Respondents. Allen, Plaintiff, v. Same, Defendant and Appellant: Same, Defendants: Same, Interpleaded Defendants and Respondents.

      November 1

    November 30, 1965.

      For the appellant there was a brief by Herrick & Sigl of Eau Claire, and oral argument by Duane Herrick.

    For the respondents there was a brief by Wilcox & Wilcox of Eau Claire, and oral argument by Francis J. Wilcox.

   Beilfuss, J.

Two issues are raised upon this appeal— (1) was it error to exclude the expert testimony, and (2) was it error to grant the motion for a directed verdict?

Greyhound called two county highway commissioners to give expert opinion testimony as to the proper manner of plowing snow and as to whether Lyons, the driver of the Clark county snowplow, operated the vehicle at an excessive speed. The two county highway commissioners were John E. Smith from Eau Claire county, and Stewart O’Flanigan from Dunn county. While testimony of the two witnesses is not identical, it is essentially so; for this reason the opinion will refer only to the testimony of Mr. Smith.

Mr. Smith had been a county highway commissioner for six years and employed in the general field of highway work for a period of thirty-nine years. He supervised highway maintenance work, including snowplowing. He attended meetings of state highway personnel where the subject of snowplowing was discussed. He testified, however, that there were no written codes or standards as to proper or improper methods of snowplowing, excepting that snowplows should not be operated “against traffic.”

A hypothetical question setting forth substantially the same facts as reported above was put to Mr. Smith preliminary to asking him if he had an opinion as to the proper speed for a snowplow under those circumstances. (The hypothetical question fixed the speed of the snowplow at 20 to 25 miles per hour.)

An objection to the question was sustained by the trial court as follows: “I am merely ruling that the question in the form that it is in and so forth does not make a proper case for an expert opinion; that it is invading the province of the jury. I am ruling on this one particular question and am not saying anything as to any other testimony you may or may not wish to offer.”

Counsel for Greyhound pursued the subject and sought Smith’s opinion as to the effect speed would have upon the amount of snow blown and as to the safe methods of plowing under these circumstances. Cross-examination as to proper foundation was permitted and Smith admitted that the depth of the snow and the size and height of the blade “would make a difference.” The hypothetical question did not contain this information and objection that insufficient foundation had been laid for an opinion was sustained. Smith was permitted to testify the faster you plow snow the higher it will be thrown in a strong wind and that it would impair visibility in the immediate area for other traffic.

In reconsidering the ruling on the expert testimony upon motions after verdict, the trial court stated:

“. . . An attempt was made to introduce expert testimony as to the safe manner of plowing snow but the Court rejected it. The Court felt and still feels that such testimony would invade the province of the jury. The two expert witnesses stated that there were no general rules promulgated by the State or any agency on the subject, except that no plow should plow against traffic. They testified that when the County Highway Commissioners would meet they would discuss plowing snow but there was no testimony that the group ever formulated or agreed to any standards or rules as to plowing snow. It is a matter of common knowledge that the faster a plow travels the more snow will be raised in the air and expert testimony is not needed to establish, this. No proper foundation was laid for expert opinions. .No testimony was offered as to the size or extent of the drifts being plowed, or as to the length, width or depth of the drifts or as to whether the snow was packed and heavy or was light. With snow that is deep and heavy a plow would obviously have to move and operate differently than with a very light snow. . . .”

Counsel for Greyhound in its brief and at oral argument states that he assumed the trial court sustained the objection to the opinions of Smith upon the ground that it invaded the province of the jury. The rulings of the trial court do reveal that the trial court did rely, in part, upon this ground. It is apparent the trial court also ruled that the hypothetical question as given “did not make a proper case for expert opinion” and that no proper foundation had been laid.

Assuming that Mr. Smith and Mr. O’Flanigan were qualified as experts in a field beyond the common knowledge of jurors, an objection upon the sole ground that their opinions invade that province of the jury should not be sustained.

The recent case of Chapnitsky v. McClone (1963), 20 Wis. (2d) 453, 122 N. W. (2d) 400, dealt with this same problem. At pages 462, 463, we stated:

“Defendants’ counsel objected to both questions on the ground that they invaded the province of the jury. The trial court sustained the objections to both questions. Plaintiff contends this ruling constituted prejudicial error. The questions were not objectionable on that ground. This same issue was recently before us in Fehrman v. Smirl, ante, pp. 1, 18, 121 N. W. (2d) 255, and we therein stated:
“ Tt is urged that these questions and answers were incompetent because they invaded the province of the jury. This court, however, is committed to the principle that expert opinion testimony is not objectionable merely because it covers one of the ultimate facts to be determined by the jury. Kreyer v. Farmers’ Co-operative Lum ber Co. (1962), 18 Wis. (2d) 67, 76, 117 N. W. (2d) 646; Zarnik v. C. Reiss Coal Co. (1907), 133 Wis. 290, 301, 113 N. W. 752; and Daly v. Milwaukee (1899), 103 Wis. 588, 590, 79 N. W. 752. See also 7 Wigmore, Evidence (3d ed.), p. 18, sec. 1921.’ ”

Kreyer v. Farmers’ Co-operative Lumber Co. (1962), 18 Wis. (2d) 67, 75, 117 N. W. (2d) 646, sets forth:

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

In accord with the rule of Anderson, supra, for the admission of opinion evidence, are the tests adopted in McCormick, Evidence (hornbook series), pp. 28, 29, sec. 13:

“First, the subject of the inference must be so distinctively related to some science, profession, business or occupation as to be beyond the ken of the average layman, and second, the witness must have such skill, knowledge or experience in that field or calling as to make it appear that his opinion or inference will probably aid the trier in his search for truth.”

In the case at hand it does not appear that any written rules or directions had been adopted (other than not to plow “against traffic”) or that the highway commissioners had agreed upon any specific snowplowing procedures so as to make it a field of special knowledge over and above that possessed by the average juror. This, coupled with the fact that the hypothetical question did not include significant factors such as depth of the snow and size and height of the snowplow blade as necessary foundation, was sufficient to permit the trial court to exclude the opinion evidence as a proper exercise of its discretion.

In ruling on a motion for a directed verdict the trial court must view the evidence in the light most favorable to the party moved against and apply the following rule:

“ ‘A verdict may properly be directed only when the evidence gives rise to no dispute as to the material issues or only when the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion.’ Rusch v. Sentinel-News Co. (1933), 212 Wis. 530, 533, 250 N. W. 405; Thoni v. Bancroft Dairy Co. (1949), 255 Wis. 577, 579, 39 N. W. (2d) 690; Wadoz v. United Nat. Indemnity Co. (1957), 274 Wis. 383, 390, 80 N. W. (2d) 262.” Bruno v. Golden Bell Dairy (1961), 15 Wis. (2d) 106, 109, 112 N. W. (2d) 199.

Both parties concede that it was not negligence to plow snow because of the hazardous weather conditions. This work was being done in response to the county’s duty to maintain the highway. The county was attempting to remove or alleviate a road condition that could be dangerous to the users of the highway.

The county does not contend that it could not be liable under any circumstances nor that the snowplow driver could not have been negligent regardless of how he drove the vehicle. It claims only that its driver was not negligent under the facts in evidence.

Without repeating the facts in detail, it is undisputed that the hazardous weather conditions were known to all three drivers; that both Knight, the car driver, and Weiss, the bus driver, saw the snowplow at a considerable distance (at least one-quarter mile) before they reached the snowplow; that they saw the flashing blue maintenance light and knew it was a snowplow and saw snow blow across the road when it hit the finger drifts.

Greyhound contends that there is sufficient evidence to permit a finding that Lyons, the snowplow driver, was negligent as to lookout and as to speed.

Viewing the evidence most favorable to Greyhound, it appears that Lyons had been plowing finger drifts in this area on Highway 12 for two or three hours; that he knew that snow blew across the road when he hit the drifts; that his vehicle was equipped with necessary clearance and flashing blue maintenance vehicle lights and that they were working; that he was traveling at 20 miles per hour (as observed by the trial court, Knight’s testimony that Lyons’ speed was 25 miles per hour has very little probative value because he was meeting Lyons in the same line of travel); that the snowplow was entirely on the right hand shoulder except for the left wheels; and that he did not see, in fact could not see, the bus approaching from the rear because his rearview mirrors were covered with snow.

Aside from the fact that it was impractical to clean the mirrors under the conditions that existed, a driver ordinarily has no duty of maintaining a lookout to the rear unless a deviation from his course of travel or his position on the highway could reasonably create or constitute a hazard to drivers approaching from the rear. While he knew or should have known that his activity was causing snow to blow across the highway in such a manner as to momentarily restrict the vision of other users of the highway under the conditions as they existed here, he could assume that fact was readily apparent to the other users of the highway. To say that he was required to stop before plowing each drift on the busy state highway would be such an unreasonable restriction as to practically prevent any efficient snowplowing.

In the absence of testimony as to the length, width, or depth of the drifts, or the size or height of the plow blade, coupled with his position on the highway, it would be only speculation to find that a speed of 20 miles per hour would appreciably affect the blowing snow hazard, or that his speed was negligence.

Greyhound argues that Lyons violated the instructions of his superiors as to how to plow snow in a high wind. The evidence does not bear out this contention.

We agree with the trial court that there is no evidence to sustain a finding of negligence on the part of Lyons, and approve the order granting the motion for a directed verdict.

By the Court. — Judgments affirmed.

        Gospodar v. Milwaukee Automobile Ins. Co. (1946), 249 Wis. 332, 24 N. W. (2d) 676, 25 N. W. (2d) 257.

        Scott v. Gilbertson (1957), 2 Wis. (2d) 102, 85 N. W. (2d) 852.


author: Currie, C. J.

text:
    Lane, Respondent, v. Collins, Appellant.

      November 1

    November 30, 1965.

      For the appellant there was a brief by Arno J. Miller and Rogers & Owens, all of Portage, and oral argument by Mr. Phillip Owens and Mr. Miller.

    For the respondent there was a brief and oral argument by Jack McManus of Madison.
   Currie, C. J.

The following issues are presented on this appeal:

(1) Was the arrest of plaintiff by defendant lawful as a matter of law ?

(2) Was it prejudicial error for the trial court to admit into evidence testimony bearing on defendant’s motive in making the arrest?

(3) Did the trial court commit prejudicial error in instructing the jury?

(4) Were the damages awarded excessive?

Lawfulness of Arrest.

The tort of false imprisonment has been defined on a number of occasions by this court as, “The unlawful restraint by one person of the physical liberty of another.” If the arrest of plaintiff by defendant was lawful it would necessarily follow that the ensuing holding of plaintiff in custody for an hour and a half until he could provide bail was not an unlawful restraint.

Defendant contends that the arrest was lawful as a matter of law, and, therefore, his motion for directed verdict should not have been denied. The trial court took the position that under the special facts of this case the lawfulness of the arrest presented an issue of fact for the jury to determine. In order to pass on this issue we will set forth a brief résumé of those facts. In doing so it is necessary to state only those facts which tend to support plaintiff’s version of what occurred inasmuch as plaintiff recovered the verdict.

Plaintiff was a resident of Ripon but his divorced wife and children resided in Portage. On the evening of the arrest defendant was on duty as a city policeman patrolling the streets in a police car. He thought he saw plaintiff’s car make a U-turn and followed it until plaintiff stopped opposite the Raulf Hotel. When defendant pulled up alongside plaintiff’s car he noticed that it had a broken taillight. Upon calling plaintiff over to the police car defendant did not mention the U-turn or the taillight, but instead asked plaintiff not to call his home again. Then some discussion took place between the two over the fact that plaintiff had called defendant’s home to request that defendant not associate with plaintiff’s divorced wife. The reason plaintiff had made the request was because he had learned from his children who reside with his ex-wife that defendant had been calling upon her. Other evidence was adduced that defendant had been seen in her company. In the conversation between plaintiff and defendant preceding and coincident with the arrest defendant did not mention either the making of the U-turn by plaintiff or the operating of the vehicle with a defective taillight.

While the two were talking, plaintiff’s former wife drove up in another car and stopped on the opposite side of the street. Plaintiff crossed the street and talked to her. Upon returning to defendant the latter said, “You’re on probation, aren’t you?” This had reference to the fact that plaintiff had been convicted of the offense of nonsupport of his former wife, and had been granted probation. This provoked plaintiff who then stated he thought defendant was a “son-of-a-bitch.” Defendant asked plaintiff to repeat the statement, and plaintiff did, thus calling defendant “son-of-a-bitch” a second time. Defendant then told plaintiff he was arresting him because of making this statement.

Plaintiff walked over to the hotel in order to call a friend to arrange for his bail. Defendant called another officer and the officers walked into the hotel and arrested plaintiff and took him to the police station.

Sec. 954.03 (1), Stats., authorizes a police officer to arrest without a warrant “whenever the officer has reasonable grounds to believe that the person to be arrested has committed a misdemeanor, or has violated an ordinance, and will not be apprehended unless immediately-arrested. . . .”

The disorderly conduct ordinance upon which the arrest was grounded is sec. 16.11 of the Portage code of ordinances entitled, “Disturbance of the Peace. Disorderly Conduct,” and provides as follows:

“16.11 Disturbance op the peace. Disorderly conduct. No person shall, within the limits of the City of Portage, Commit any of the following offenses, namely:
“(d) Objectionable language. Use any profane, vile, filthy, or obscene language in any public place within the hearing of other persons in such public place;
“(e) Assault. Assault another, when not excusable or justifiable, or use in reference to and in the presence of another, or in reference to and in the presence of another member of his family, abusive or obscene language, intended or naturally tending to provoke an assault or any breach of the peace; . . .”

These provisions are similar in import to that portion of sec. 947.01 (1), Stats., entitled, “Disorderly Conduct,” which makes it a misdemeanor for a person to engage “in . . . abusive, indecent, profane . . . conduct . . .” in a public or private place. The underlying reason for disorderly conduct statutes and ordinances proscribing abusive language is that such language tends to provoke retaliatory conduct on the part of the person to whom it is addressed that amounts to breach of the peace. Calling another person a “son-of-a-bitch” under charged circumstances might well constitute abusive language which is likely to have that result. The fact that the abusive language is directed to a policeman or other law-enforcement officer and is not overheard by others does not prevent it from being a violation of such statute or ordinance.

However, a police officer cannot provoke a person into a breach of the peace, such as directing abusive language to the police officer, and then arrest him without a warrant.

In Pavish v. Meyers the Washington court was faced with a false-imprisonment action arising out of defendant officer’s arrest of plaintiff merchant for breach of the peace. Defendant, while on duty, made derogatory remarks about plaintiff’s fish market. Plaintiff then replied that defendant officer was a “whiskey peddler” and defendant arrested him for breaching the peace. Plaintiff sued for false imprisonment, but the trial court non-suited him and would not allow certain evidence to be introduced concerning defendant’s actions prior to plaintiff’s “whiskey peddler” remark. The supreme court reversed and ordered a new trial on the basis that the conduct of defendant officer was crucial to the false-imprisonment question. The court conceded that plaintiff’s epithet standing alone clearly constituted a breach of the peace, but nevertheless plaintiff’s testimony that defendant provoked the cause for arrest made the question of the lawfulness of the arrest a jury issue. In reaching this result the court said :

“We are not saying that officer Meyers was guilty of provoking the cause for the arrest, but merely that there was testimony tending to show that fact, and the trial court should have submitted this phase of the case to the jury. We have said that, between himself and the public, the appellant was guilty of such conduct as tended to breach the peace and probably justified his arrest, but in this action between himself and the officer arresting him, he had a right to show, if he could that his conduct was brought about by the offensive conduct of the officer himself. It follows that the trial court was in error in not permitting the facts to be shown for the purpose of showing that the conduct of the officer provoked that of appellant. The latter was entitled to show, as he offered but was denied the privilege, that officer Meyers harbored ill feeling towards him. Plainly, testimony of this character would tend to enlighten the jury on the question of whether the officer’s conduct tended to provoke that of the appellant. If, under the testimony, the jury should believe that respondent Meyers so acted as to be the cause of appellant’s conduct and to justify it, then, so far as this action is concerned, the arrest would be wrongful and unjustified.” (Emphasis supplied.)

Accepting plaintiff’s version of what transpired between him and defendant immediately preceding and coincident with the arrest, a fact situation is presented similar to that in the Pavish Case. We conclude that a jury issue was presented with respect to whether the conduct of the officer was such as to have deliberately provoked plaintiff into use of the abusive language to defendant and thus render plaintiff’s arrest by defendant unlawful. Therefore, the trial court properly denied defendant’s motion for a directed verdict.

Admission of Evidence as to Defendant’s Motive.

Defendant complains that plaintiff tried the instant case on the theory that the cause of action was one of malicious prosecution, not false imprisonment, and was permitted to introduce evidence that his arrest by defendant was motivated by malice. If an arrest is otherwise legal it is not invalidated by the fact that the arresting officer was motivated by malice. However, where, as here, punitive damages are demanded, evidence of malice is admissible for the limited purpose of proving such punitive damages. Furthermore, where the arrest is for disorderly conduct growing out of abusive or obscene language directed to the arresting officer and the issue of provocation by the officer is presented, evidence of ill feeling or malice on the part of the officer might be material on the issue of provocation.

Instructions to Jury.

Defendant contends that the trial court committed prejudicial error in instructing the jury in several respects. One portion of the instructions of which defendant complains is the following:

“If you find that the defendant instituted the criminal proceedings in question here, not for the purpose of furthering the ends of justice, nor for the purpose of aiding the City in punishing the plaintiff for an alleged violation of the criminal laws of the City, but rather for the purpose of furthering his own ends or purposes, or for a vindictive or ulterior purpose, or chiefly from motives of ill will, then, and in such event, you would be justified in finding that such prosecution so instituted by defendant was actuated by malice on his part towards the plaintiff.”

This quoted paragraph is taken out of context, and when read in context it related solely to punitive damages, not lawfulness of arrest. The trial court commenced the instruction on punitive damages by stating that, if the jury found plaintiff had been wrongfully imprisoned against his will and further found that defendant was actuated by malice in making the arrest, then the jury might award punitive damages. The instructions then proceeded to state, “Malice, as used in this connection [the award of punitive damages], may consist of any motive other than a desire to bring a guilty party to justice.” Two further sentences followed and then came the afore-quoted paragraph. We find no error in this instruction.

Defendant complains because the trial court failed to read sub. (a) of sec. 16.11, Portage ordinances, to the jury. However, defendant did not specifically request that this subsection of the ordinance be quoted in the instruction, but requested that the entire ordinance be read. In the instructions the court did quote subs, (d) and (e) of this ordinance relating to the use of objectionable language. Sub. (a) is entitled, “Fights” and reads, “Engage in or attempt to provoke any fight, brawl, or noisy altercation on any street, alley or other public ground; . . .” The ordinance contains eleven subsections lettered (a) through (k) and the refused instruction requested the court to read the entire ordinance. The trial court apparently thought it unnecessary to read the entire ordinance to the jury, but read what it considered to be the two appropriate subsections. Under the instant facts we fail to see that sub. (a) adds anything to the elements of offense stated in sub. (e). Moreover, we do not consider that the requested instruction was sufficient to now predicate the instant assignment of error because it did not apprise the trial court that the reading of sub. (a) of the ordinance was deemed any more essential to defendant’s theory of the offense charged than the eight other subsections upon which defendant does not now rely.

Defendant requested the giving of the following general instruction on burden of proof: “The burden is on the plaintiff to prove the affirmative of his contentions by credible evidence to a reasonable certainty.” The trial court gave a proper burden of proof instruction with respect to the issue of unlawful restraint, detention, and imprisonment, but failed to give any instruction placing the burden of proof with respect to the issue of damages on plaintiff. While it was error not to have given such an instruction we are satisfied that it was not prejudicial because we do not consider it probable that the jury’s assessment of damages would have been any different if such an instruction had been given.

The trial court also refused this requested instruction:

“You are instructed that in connection with subsections (d) and (e) of the City Ordinance just read to you, the use of abusive or obscene language as therein referred to, is an offense whether used in the presence of one, or more than one, person.”

If this requested instruction had been confined to sub. (e) of the ordinance it would have been error not to have given it. However, sub. (d) contains the requirement that the objectionable language be “within the hearing of other persons” (italics supplied). Because the requested instruction embraced sub. (d) as well as sub. (e) of the ordinance it was not error to refuse to give it.

The last contention advanced by defendant with respect to the instructions was that the trial court erroneously refused to give a requested instruction as to plaintiff’s reputation on the damage issue. While the complaint alleged damage to reputation, plaintiff abandoned this item of claimed damage by putting in no evidence relating to damage to reputation. Thus, damage to reputation was not an issue under the evidence, and the trial court properly refused to give this requested instruction.

Damages.

Defendant contends that both the $750 awarded for compensatory damages- and the like amount awarded for punitive damages are excessive.

As to compensatory damages, plaintiff verified that he had paid an attorney $100 to represent him in court on the disorderly conduct charge. Plaintiff’s main other claim in regard to compensatory damages was the mental distress caused by the arrest. This distress is explained by the following testimony of plaintiff:

“Q. You have to describe to the Court and Jury how it upset you, when it upset you, and for what period of time? A. By taking me out of a public place, you might say, physically, it upset me tremendously; being conducted across, the street between two police officers, especially when I didn’t — there was nothing that I knew I had done wrong. And even my daughter had seen it from up the street.
“Q. When you came out of the hotel in the custody of these two officers, you observed your daughter? A. No, sir. My ex-wife was parked on the north side of Cook Street and my Daughter told me she had seen me taken out.”

Plaintiff further testified that he was upset because a number of people had heard about the arrest and mentioned it to him.

The damages alluded to by plaintiff, namely, attorney’s expenses and mental distress, are compensable damages in a false-imprisonment action.

The trial court made this comment on the damage award in passing on motions after verdict, “I personally felt that their [the jury’s] adjudication of damages, both as to compensatory and . . . punitive . . . were conservative, and the Court would not be inclined to change those in any event.”

We find no merit in defendant’s contention that the damages, either compensatory or punitive, were excessive.

By the Court. — Judgment affirmed.

        Weiler v. Herzfeld-Phillipson Co. (1926), 189 Wis. 554, 557, 208 N. W. 599; Hadler v. Rhyner (1944), 244 Wis. 448, 452, 12 N. W. (2d) 693; Weber v. Young (1947), 250 Wis. 307, 311, 26 N. W. (2d) 543; also see Prosser, Law of Torts (3d ed.), p. 54, sec. 12; 22 Am. Jur., False Imprisonment, p. 353, sec. 2.

        Zartner v. Scopp (1965), 28 Wis. (2d) 205, 209, 137 N. W. (2d) 107; Jensen v. Heritage Mut. Ins. Co. (1964), 23 Wis. (2d) 344, 348, 127 N. W. (2d) 228.

       Peters v. State (1886), 66 Wis. 339, 342, 28 N. W. 136.

       St. Petersburg v. Calbeck (Fla. App. 1960), 121 So. (2d) 814; Jones v. Commonwealth (1948), 307 Ky. 286, 210 S. W. (2d) 956; St. Paul v. Morris (1960), 258 Minn. 467, 104 N. W. (2d) 902; State v. Chaplinsky (1941), 91 N. H. 310, 18 Atl. (2d) 754; Anno. Opprobrious words addressed to policeman as breach of peace, 34 A. L. R. 566.

        Jacksonville v. Headen (1892), 48 Ill. App 60; Oratowski v. Civil Service Comm. (1954), 3 Ill. App. (2d) 551, 123 N. E. (2d) 146; Scott v. Feilschmidt (1921), 191 Iowa 347, 182 N. W. 382; Columbus v. Guidotti (1958), 81 Ohio L. Abs. 33, 160 N. E. (2d) 355; Pavish v. Meyers (1924), 129 Wash. 605, 225 Pac. 633, 34 A. L. R. 561.

        Supra, footnote 5.

       Id. pages 610, 611.

        Murphy v. Martin (1883), 58 Wis. 276, 16 N. W. 603; Annos. 19 A. L. R. 671 and 137 A. L. R. 504.

        Hadler v. Rhyner (1944), 244 Wis. 448, 452, 12 N. W. (2d) 693; Bergeron v. Peyton (1900), 106 Wis. 377, 381, 82 N. W. 291; Prosser, Law of Torts (3d ed.), p. 56, sec. 12.

        Pavish v. Meyers, supra, footnote 5, page 611.

       Wis J I—Civil, Part II, 2110; Sorenson v. Dundas (1880), 50 Wis. 335, 338, 7 N. W. 259; Prosser, Law of Torts (3d ed.), p. 56, sec. 12.


author: Heffernan, J.

text:
    Forest Home Dodge, Inc., and another, Plaintiffs and Respondents, v. Karns, Commissioner of Motor Vehicle Department, Defendant and Appellant: Doering Motor Company and others, defendants.

      November 2

    November 30, 1965.

      For the appellant the cause was argued by LeRoy L. Dalton, assistant attorney general, with whom on the briefs was Bronson C. La Follette, attorney general.
    For the respondents there were briefs by Whyte, Hirsehboeck, Minaban, Harding & Harland, attorneys, and Victor M. Harding and Richard D. Silberman of counsel, all of Milwaukee, and Hart, Kraege, Jackman & Wightman, attorneys, and W. L. Jackman of counsel, all of Madison, and oral argument by W. L. Jackman and Victor M. Harding.

    A brief amicus curiae was filed by Wheeler, Van Sickle, Day & Goodman and Roland B. Day, all of Madison, for the Wisconsin Automotive Trades Association.

       Motion for rehearing denied, with costs, on February 1, 1966.

   Heffernan, J.

“Qui facit per alium facit per se.”

Broom’s Legal Maxims, p. 689 London, 1911

This being an appeal from the decision of an administrative agency, the courts are governed by the provisions of sec. 227.20, Stats. That portion of the statutes allows a decision to be reversed or modified if the appellant is prejudiced as the result of the administrative findings, inferences, conclusions, or decisions, being unsupported by substantial evidence in view of the record as a whole. The same statute also directs the courts to accord due weight to the experience, technical competence, and specialized knowledge of the agency involved.

At the time of the hearing before the commissioner, it was agreed that there were but two issues. They are (1) is Forest Home a replacement dealership for Earl Smith Agency, and (2) have the objecting dealers “who constitute the presently enfranchised dealers complied with the agreed requirements of the manufacturer for adequate representation?” In addition, the applicant, Forest Home, objected to the ruling that the application of Forest Home was, in fact, that of a manufacturer.

In the event this was not a “dealer application of a manufacturer,” sec. 218.01(3) (f), Stats., is not applicable. We conclude, however, that the application made in the name of Forest Home was the “dealer application of a manufacturer.”

The statute, however, is not unambiguous. It is, therefore, necessary to construe it in light of its purpose, and consideration must be given to statutes that are in pari materia. Sec. 218.01 (3), Stats., is a part of the Wisconsin Auto Dealership Law, which was enacted in 1935 (ch. 474, Laws of 1935). Implicit in this law is the recognition of the gross disparity of bargaining power between the manufacturer of automobiles and the local retailer. It was enacted in recognition of the long history of the abuse of dealers by manufacturers. Kuhl Motor Co. v. Ford Motor Co. (1955), 270 Wis. 488, 71 N. W. (2d) 420. These laws deal with the relationship between auto manufacturers and auto dealers. The purpose of the law is to furnish the dealer with some protection against unfair treatment by the manufacturer. Sec. 218.01 (3) (f) was enacted into law in 1955 (ch. 364, Laws of 1955). Earlier enactments had guarded against specific evils occasioned by what the legislature considered the unfair or overreaching tactics of manufacturers, e.g., forced acceptance of unordered autos or parts (218.01 (3) (a) 15); coercion or unfair treatment through threat of cancellation (218.01 (3) (a) 16); unfair cancellation or refusal to renew franchises, or without due regard to the equities of the dealer (218.01 (3) (a) 17).

We agree with the attorney general that the legislative history clearly shows that sec. 218.01 (3) (f), Stats., was a part of this general pattern of regulation, and that it was designed to prevent the manufacturer from accomplishing indirectly by new, manufacturer-controlled dealerships what the law did not permit to be done directly. With superior resources to spend on facilities, advertising, etc., and with no problem in placing orders with a distributor or manufacturer, a dealer who, in fact, is a manufacturer or controlled by a manufacturer is at a distinct advantage and can use that advantage to accomplish by indirection what is otherwise prohibited by law.

The ambiguity of the statute should be resolved in a manner that will effectuate the legislative intent. Bearing in mind the purpose of sec. 218.01 (8) (f), Stats., as shown by its history and place in the context of the law regulating manufacturers, it is apparent that it is a remedial statute and should be construed to effect its purpose.

“The construction of the statute should be made with reference to the purpose of the statute, or in the light thereof, and in harmony and conformity therewith, in order to aid, advance, promote, subserve, support, and effectuate such aim, design, motive, end, aspirations, or object.” 50 Am. Jur., Statutes, p. 286, sec. 303.

It is obvious on its face that the statute in question at least includes the situation where the manufacturer is itself the applicant. In view of the purpose of the statute, however, it would be naive to assume that its effect was limited to this situation.

The statute if so interpreted would be, in effect, useless and would be contrary to the general tenor of the entire statutory scheme that indirect coercion is prohibited. The whole framework of the laws shows that the manufacturer, with his superior bargaining power, is not to be unsupervised in his dealings with the small independent dealer; and that the state, acting through the motor vehicle department, must see to it that the elements of fairness and freedom in bargaining between the parties continue to exist. We cannot, in view of the clearly expressed legislative intent, assume that the law passed was intended as a nullity to be evaded by operating through an individual under contract to the manufacturer or by the device of a subsidiary corporation.

We conclude, therefore, that the conduct prohibited by sec. 218.01 (3) (f), Stats., includes the situation in the instant case where there is an objective showing that the manufacturer controls the license applicant. There need be no showing that there is an intent to evade the statute or that the particular transaction is intended to further unfair treatment of the dealers by the manufacturer. It is enough that the facts adduced at the hearing are sufficient to show that in effect the applicant is the creature of the manufacturer. It is enough to show the element of control. A review of the evidence reveals that there was substantial evidence to support the commissioner’s conclusion.

The original application by Forest Home revealed that it was owned 100 percent by Chrysler Motors, a wholly owned subsidiary of the Chrysler Corporation. At the hearings, all witnesses were employees of Chrysler Motors, not of the corporation ostensibly seeking the license. When a change was made in the corporate ownership and a Mr. Caldwell purchased 25 percent of the stock, it was a communication on the letterhead of Chrysler Motors that informed the commissioner of that fact. It was admitted that Chrysler Motors continued to own 75 percent of the stock of Forest Home. It is clear from the evidence that the effect of these intercorporate holdings was to vest control of Forest Home in the manufacturer, the Chrysler Corporation, in direct contravention of the statute if, in fact, the existing dealers were living up to the manufacturer’s agreed requirements. No finding of fact is required to support the commissioner’s conclusion in this regard. The ultimate fact of manufacturer control is uncontroverted by the evidence. Additionally, where the evidence is clear and convincing, this court, or the trial court, can supply a finding of fact where it might be required. Barnes v. State (1964), 25 Wis. (2d) 116, 122, 130 N. W. (2d) 264.

The petitioners (Forest Home and Chrysler Motors) argue, however, that this is a mere financing device to “assist otherwise qualified new dealers who lack sufficient capital in becoming established through temporary capital financing arrangements.” They point to the case of National Bond Finance Co. v. General Motors Corp. (D. C., W. D. Mo. 1964), 238 Fed. Supp. 248, in support of their position. That case has no relevancy to the instant one. The National Bond Case involved a situation wherein the finance company was a creditor of the General Motors dealer. It sought to “pierce the corporate veil” in a common-law creditor’s action to hold General Motors liable for the debts of the dealer on the basis that General Motors was a stockholder. General Motors successfully defended by showing that the dealer was contractually obligated to buy out General Motors’ interest in the dealership. The dealer was obligated “to apply all of his dividends and at least 50 percent of his bonus” to purchase the stock held by General Motors.

There is no doubt that this constituted a bona fide attempt by General Motors to finance an independent dealer. The contract provided for mandatory termination of financial control. This is unlike the mere option that was given to Mr. Caldwell in the case before the court. We do not by thus distinguishing the case imply that a bona fide temporary financing as used by General Motors satisfies the requirements of the statute. We refer to this case to distinguish the petitioners-respondents’ argument. In National Bond an attempt was made to “pierce the corporate veil” and to set it aside as a nullity. We do not do so, nor is it necessary to “pierce the corporate veil” in this opinion. Rather, we expressly recognize the separate corporate entities, but in addition recognize that the succession of corporate stockholdings vest majority ownership and, hence, control of Forest Home in the Chrysler Corporation so as to constitute a “dealer application of a manufacturer.”

Sec. 218.01 (3) (f), Stats., has been construed to be applicable to new dealerships only and not to dealerships that are mere replacements. No such exception appears on the face of the statute, and this construction has been reached in the practical administration of the statute by the commissioner. Apparently, all the parties hereto concede the correctness of this construction. Under this agreed construction, if Forest Home is a replacement of an existing agency, the application will not be denied though it is a dealer application and though the other dealers have met the minimum agreed requirements. The commissioner found as a matter of fact that the proposed Forest Home Agency was not a replacement, but was a new place of business. Although there is some evidence to the contrary, there is substantial evidence to support the finding: There was a lapse of a full model year between the demise of the Earl Smith Agency and application for Forest Home; the new agency was at a distance of nine and one-half miles from the location of the Earl Smith Agency; Forest Home was to have as its sales area the whole of Milwaukee county, while the Earl Smith area was Cudahy and South Milwaukee. The representative of Chrysler Motors stated that had Earl Smith stayed in business, Chrysler Motors would still have wanted a dealership in the proposed location for Forest Home. The representatives referred to Earl Smith as a “little dealer,” while Forest Home was to be a substantially larger enterprise. Without a doubt, there was substantial evidence to sustain the findings of the commissioner that this was a new dealership and not a replacement.

In addition to the requirement discussed above, sec. 218.01 (3) (f), Stats., directs that the commissioner “shall deny the dealer application of a manufacturer in any community or territory where the presently enfranchised dealer or dealers have complied with agreed requirements of such manufacturer for adequate representation in such community or territory.”

The Dodge Direct Dealer Agreement, uniformly used throughout the United States, contains the following provisions:

“DIRECT DEALER agrees to sell energetically at retail in the Sales Locality described in Paragraph 1 of this agreement Dodge passenger cars and Dodge passenger car parts and accessories. DIRECT DEALER agrees to sell at retail in such Sales Locality the number of new Dodge passenger cars necessary to fulfill DIRECT DEALER’S Minimum Sales Responsibility, as defined below.
“DIRECT DEALER’S Minimum Sales Responsibility will be determined as follows:
“From time to time, but at least once a year, DODGE will compute the ratio of the number of new Dodge passenger cars registered in the most recent 12-month period for which registration figures are available in the Dodge Sales Region in which DIRECT DEALER is located to the number of all new passenger cars so registered in that Region. The ratio thus obtained will be applied to the number of all new passenger cars registered during the same 12-month period in DIRECT DEALER’S Sales Locality. The resulting number (and the percentage share of market 'that such number represents for the Sales Locality) will be DIRECT DEALER’S Minimum Sales Responsibility for this same twelve (12) month period, subject to such adjustment as is described below.”

Sec. 218.01 (2) (be), Stats., requires that every dealer or distributor of automobiles shall file with the commissioner his written agreement. Sec. 218.01 (2) (bd) 1 permits the filing of a single basic agreement to cover all dealerships if, in fact, all Dodge dealers are covered by an identical agreement and one has been filed. The paragraphs quoted above are portions of the agreement that was filed by Chrysler Motors pursuant to this statutory directive. In addition to outlining the minimum sales requirements (supra), this agreement provides that the dealer shall furnish adequate service facilities, basic and necessary tools, adequate sales room space, and maintain sufficient working capital, all for the purpose of rendering “prompt, efficient and courteous service.”

Respondent contends that this is not the agreement required by sec. 218.01 (3) (f), Stats., that this is merely a delineation of a minimum sales responsibility which if not met by the dealer can result in cancellation. Respondent contends that there is in fact no “agreed requirement of such manufacturer for adequate representation.” That there being none, the dealers are defenseless if the manufacturer or distributor chooses to claim that they have not met the agreed requirements for adequate representation.

The commissioner, however, did conclude that the filed franchise agreements, in which the dealer not only agrees “to sell energetically” and at least up to a certain ratio, but also agrees to maintain a certain standard of equipment and service, constitutes the document which defines the “agreed requirement of such manufacturer for adequate representation.” An examination of the document which appears in the record is sufficient to sustain that conclusion. Numerous provisions refer to factors other than minimum sales requirements. For example, paragraphs are devoted to advertising, keeping of records, placing of orders, delivery of automobiles, price changes, sale and supply of parts, and handling of collections. Even the rights of the dealer’s widow is included. The document itself is entitled “Dodge Direct Dealer Agreement — Terms and Provisions.” There is no doubt that this “Direct Dealer Agreement” on its face constitutes the obligation that the distributor or manufacturer has placed upon the dealer for representation. If the dealer meets those standards, he has complied with the only requirement for adequate representation that exists. There is evidence that the objecting dealers did meet the requirements imposed by the contract, and in regard to the sales requirements, the commissioner found and there is ample evidence to support the finding that the objecting dealers had maintained and exceeded the contractual requirements.

As a final argument, the respondent contends that, since the statute includes manufacturers applying for new dealership license, but not to a manufacturer who acquires control of an existing dealership or who seeks a license for a replacement dealership, the statute is unconstitutional on the basis that the classification is unreasonable. Implicit in his argument is that the same evils exist in all manufacturer-controlled dealerships. While this may be a reasonable assumption, the legislature, in its wisdom, has not seen fit to proscribe all such transactions. This court has clearly stated that a classification is not unreasonable merely because all possible similar evils are not dealt with at one time.

In Kuhl Motor Co. v. Ford Motor Co. (1955), 270 Wis. 488, 503, 71 N. W. (2d) 420, in answering a similar attack, this court said:

“While all the citizens of the state are entitled to be protected against unfair dealing by others, this does not mean that the legislature must by one sweep prohibit all unfair dealing and cannot proceed piecemeal to remedy particular types of unfair dealing which manifest themselves in particular occupations or industries. On this point it is only necessary to quote further from Williamson v. Lee Optical Co., supra (348 U. S. 488) :
“ ‘Secondly, the district court held that it violated the equal-protection clause of the Fourteenth amendment to subject opticians to this regulatory system and to exempt, as sec. 3 of the act does, all sellers of ready-to-wear glasses. The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Tigner v. Texas, 310 U. S. 141 [60 Sup. Ct. 879, 84 L. Ed. 1124]. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. Semler v. Dental Examiners, 294 U. S. 608 [55 Sup. Ct. 570, 79 L. Ed. 1086]. The legislature may select one phase of one field and apply a remedy there, neglecting the others. A. F. of L. v. American Sash Co. 335 U. S. 538 [69 Sup. Ct. 258, 93 L. Ed. 222]. The prohibition of the equal-protection clause goes no further than the invidious discrimination/ ”

This court in Kreutzer v. Westfahl (1925), 187 Wis. 463, 483, 204 N. W. 595, quoted with approval the declaration of Mr. Justice Holmes in Keokee C. C. Co. v. Taylor, 234 U. S. 224, 34 Sup. Ct. 856, 58 L. Ed. 1288.

“ . it is established by repeated decisions that a statute aimed at what is deemed an evil, and hitting it presumably where experience shows it to be most felt, is not to be upset by thinking up and enumerating other instances to which it might have been applied equally well, so far as the court can see. That is for the legislature to judge unless the case is very clear/ ”

Nor is the statute in violation of the United States constitution as an undue burden on interstate commerce. A statute is presumptively constitutional, and, in the absence of a clear showing that it is not, it will be held to be constitutionally proper. In this case, in the absence of a showing that it does in fact result in an undue burden on interstate commerce, that presumption will be given effect. Statutes are presumed to be valid and constitutional, and a party attacking a statute as unconstitutional has the burden of proof. 16 C. J. S., Constitutional Law, p. 388, sec. 99. Smith v. Brookfield (1956), 272 Wis. 1, 74 N. W. (2d) 770. While admittedly in this particular case the transactions between a Dodge dealer and the manufacturer or distributor are transactions in interstate commerce, there is no evidence that there is a burden on interstate commerce or that the burden is “undue.” It should be noted, moreover, that the same provision is applicable to a domestic manufacturer, and is not thus discriminatory to a manufacturer who ships his automobiles from out of the state. The respondent has failed to assume the burden of showing in what manner, if any, the statute is unconstitutional.

It is clear that the manufacturer is not foreclosed from selling directly, if he sees fit to acquire an existing dealership. The record shows that during the course of these proceedings, Chrysler Motors did acquire the controlling interest in Edwards Motors, one of the original objectors herein. In view of the failure of the respondent to assume his burden of proof, we conclude that the rule as stated in State v. Helwig is applicable here.

“. . . the state may adopt proper regulations in the interests of the peace, safety, and welfare of its residents in the absence of a federal statute either dealing with or pre-empting the field, or unless the state regulation discriminates against persons engaged in interstate commerce or places an undue burden thereon.” State v. Helwig (1952), 262 Wis. 299, 302, 54 N. W. (2d) 907.

There is no claim that this field of regulation has been pre-empted by federal legislation. The statute on its face appears to be a proper exercise of the police power and is presumptively constitutional.

The statute in question is not so vague as to be unconstitutional. While the meaning of certain portions of it may be disputed, it is the duty of the court to construe the statute in accordance with its legislative intent.

In 50 Am. Jur., Statutes, p. 489, sec. 473, it is stated:

“A statute is not necessarily void merely because it is vague, indefinite, or uncertain, or contains terms not susceptible of exact meaning, or is stated in general terms, or prescribes a general course of conduct, or does not prescribe precise boundaries, or is imperfect in its details, or contains errors or omissions, or because the intention of the legislature might have been expressed in plainer terms, and questions may arise as to its applicability, and opinions may differ in respect of what falls within its terms, or because the statute is difficult to execute.”

Unless a statute is so vague and uncertain that it is impossible to execute it or to ascertain the legislative intent with reasonable certainty, it is valid. Marshfield v. Cameron (1964), 24 Wis. (2d) 56, 61, 127 N. W. (2d) 809; 82 C. J. S., Statutes, p. 113, sec. 68. It clearly cannot be said that the statute in question here is in that category.

Nor do we find that this statute is invalid as an improper delegation of legislative power. The statute properly construed clearly sets the standards that authorize the denial of a license. We do not find the conduct of the commissioner in this case arbitrary or capricious, but within the scope of his properly delegated authority.

By the Court. — Judgment reversed.