author: Hallows, J.

text:
    State, Plaintiff, v. Kenney, Defendant. Schwartz, Appellant, v. Rock County, Respondent.

      April 28

    June 2, 1964.

      For the appellant there were briefs by Joling & Schwarts of Kenosha, and oral argument by Jay Schwartz.

    For the respondent there was a brief and oral argument by William F. Donovan, district attorney.
    A brief amicus curiae was filed by William Urban Zievers of Kenosha, for the Kenosha County Bar Association.
   Hallows, J.

The bill submitted according to paragraph 12 of the stipulation of facts is as follows:

“12. That pursuant to the Minimum Fee Schedule of the State Bar Association of Wisconsin, the charges for services rendered by JAY SCHWARTZ to the defendant is:
a. 9 full days in court @ $200.00/day „. .. $1,800.00
b. 5 one-half day appearances @ $75.00/day. 375.00
c. 127.5 hours of research and consultation @ $20.00/hr. 2,550.00
d. Out of pocket expenses. 797.74
e. 76.25 hours travel time @ $20.00/hr.. . 1,525.00
f. Preparation of application.. 75.00
TOTAL BILL.. $7,132.74”

The out-of-pocket expenses consisted of mileage, meals, lodging, telephone tolls and fees, psychologist’s fee, and transcript cost. No hearing was held or testimony taken to determine the fees. In its written opinion the court disallowed items relating to travel time and mileage between Kenosha and Beloit, meals, hotel expenses, and long-distance toll charges, because such time and expenses would not be incurred by a local attorney. An item of $120 for consultation with a psychiatrist was disallowed on the ground Rock county had a psychiatrist who could have been used by Mr. Schwartz.

The trial court also disallowed all time charges for consultation with the client, his parents, or the other defendants, on days when the court approved a one-half day per diem on the ground that on those days the court appearance was of short duration and the appearance and the consultations together should not have taken more than one-half day. On days on which a full per diem charge was allowed, time charges for consultation or research and in addition for travel were disallowed. A specific item for preparing the application and motion for the appointment, all charges for travel time, research and two days of trial time related to the discharge of the first jury were disallowed. After making deductions, the trial court considered the total time spent for research, investigation, and consultation, was illustrative of much nonproductive time and duplication of effort and disallowed one third of such time. Applying to the remainder of the claim two thirds of the minimum fees set forth in the schedule of the State Bar of Wisconsin, the court finally arrived at its figure for services of $1,716.90.

Two arguments are made by the appellant which we thought were disposed of in Conway v. Sauk County (1963), 19 Wis. (2d) 599, 120 N. W. (2d) 671, when the court held the ultimate responsibility rests upon the court to determine the amount of research, investigation, and preparation necessary to furnish an adequate defense of an indigent in each case; and the minimum-fee schedule is evidence relevant to the question of a reasonable charge for services but the court is not bound to apply the rates therein set forth. This is true even in the instant case where the parties have stipulated the customary charges made by attorneys in this state for comparable services are those set forth in the minimum-fee schedule of the State Bar of Wisconsin.

Presumably, trial judges and defense counsel will frequently differ on the extent and nature of the services which are reasonably necessary to constitute an adequate defense for an indigent charged with crime. An attorney must necessarily work with foresight and ought not be judged by a court on the sole basis of hindsight. In reviewing the charges, the court should place itself in the position of defense counsel entrusted with the duty of furnishing an adequate defense. The judgment of counsel in deciding what preparation and investigation are necessary and the extent thereof should be carefully considered by the trial court. The test is not how the trial judge would have tried the case for the defense, but whether the time spent was reasonably necessary for an adequate defense.

On this appeal it makes no difference whether we consider the trial court’s function to be in nature discretionary so that allowances made by the court must be clearly unreasonable to be reversed, or whether the trial court is making a finding of ultimate fact in determining an attorney’s fee and the test of the great weight and clear preponderance of the evidence applies. Under either view the allowance of the trial court cannot stand.

We think it was error to disallow mileage, travel time, and expenses for meals incurred by an out-of-county counsel. True, the expense of furnishing counsel to an indigent is borne by the county and the public should not be required to pay excessive fees or unnecessary fees, but the court did appoint an out-of-county attorney. To keep expenses at a minimum, it should be the practice to appoint counsel for indigents who reside in the county of trial. The requested item of over $1,500 for travel time and several hundred dollars for mileage points up the expensiveness of out-of-county counsel. There may be cases when a court believes the circumstances require the appointment of counsel who resides outside the county. In such cases the demands of adequate and effective representation must override considerations of mere economy. In the interest of economy and fairness in such cases the court should have a prior understanding with counsel on travel time, mileage, and other expenses.

In this case there was apparently a legitimate misunderstanding between counsel and the court. The court assumed counsel understood only such time and expenses as local counsel would incur would be allowed. We do not find any facts in the record to sustain this assumption. Contrariwise, no facts exist in the record to support counsel’s claim he could charge mileage, meals, and travel time at minimum professional rates on a portal-to-portal basis. The trial court should reconsider these items for those days the court determines such travel was necessary. In no event should such travel time be allowed at the hourly rate the court sets for legal services unless it is proven the travel was necessary during a portion of the day when counsel would have earned such fee. If the attorney claims travel time at professional rates, he must be prepared to prove he was prevented from earning such rate because of the necessity of traveling at that time. Necessary mileage to and from the county must also be taken into consideration, but under sec. 957.26, Stats., must be allowed not in excess of seven cents a mile. The same rule of necessity and reasonableness applies to expenses for meals, lodging, and long-distance telephone calls.

We find no error in disallowing time charges for consultation with client, parents, and other counsel, on days when the court allowed a one-half day per diem for court appearance when the total time in court and conferences did not exceed one-half day. Where a full-day per diem charge is allowed, normally no other charges on a time basis would be justified. There may be exceptional cases in which a charge for extraordinary services may be allowed in addition to a per diem. We consider a per diem charge as in the nature of a complete charge for services rendered on a given date, not just services between 9 a. m. and S p. m.

We think the disallowance of the charges relating to the discharge of the first jury was erroneous. It may be the trial judge thought the jury panel was satisfactory, but it is a fact there were specific jurors on the panel who had previously served on panels within two years from the date of the trial. Defense counsel had a right to challenge these jurors. Because of these challenges the jury as finally selected contained one juror who it was later discovered had been less than candid in his answers on voir dire. The court dismissed the jury and a new one was selected. The fact the trial court believed that before the selection of this juror a satisfactory jury could have been chosen was not sufficient ground to deny defendant’s counsel his fees for that portion of the case. Defense counsel should not be penalized for objecting to the jury. The fact remains the jury was not impaneled as required by the statute.

The trial court decided at least one third of the preparation and work other than trial was unnecessary and duplicitous. Duplication of effort frequently arises and is unavoidable in cases when several defendants are tried together for the same offense. Whether in this case the unproductive work is one-third more or less we are unable, of course, to determine. Counsel appointed by the court should be ever zealous not to spend more time in preparation of a defense than is necessary. Every attorney, knows there is no limit to how much preparation one can give a lawsuit, but defense counsel must be practical and use good judgment. In such matters he proceeds at his peril. It would seem that testimony of counsel relating to the necessity of such services would be helpful. Since the services are to be reconsidered by the trial court in other respects, we suggest the court reexamine this item.

The disallowance of $120 for consultation with a psychiatrist was error. Apparently the trial court thought this charge was the psychiatrist’s fee for his time and any such consultation should have been with the psychiatrist employed by Rock county. As we read the record this was a time charge for counsel’s consultation with a psychiatrist. Apparently no charge has been made by the psychiatrist or at least none is claimed in counsel’s statement of expenses.

It is urged that sec. 256.49, Stats., requires this court to apply the full minimum bar rates to services rendered by court-appointed counsel. That section provides the amount of compensation for attorneys appointed by the court shall be such sum as the court shall deem proper and which shall be such as customarily charged by attorneys in this state for comparable services. We do not construe this section as requiring the application of the full minimum rates of the State Bar of Wisconsin. The going rate for representation of indigents in Rock county is two thirds of the minimum bar rates. Such practice is prevalent in other parts of Wisconsin and is used as a guideline in allowing compensation to counsel appointed by this court for indigents. We find no error in the rate used by the trial court.

The amount of attorney’s fees for representing an indigent should not be confused with the quality of the work. It is urged upon us the quality of the service is at least partially determined by the economics of the practice of the law, and in the amicus curiae brief of the Kenosha County Bar Association it is argued that at least the minimum fees should be allowed and preferably fees in excess of those. In answer, we point out that in the tradition of the bar some of the most effective and successful defenses have been rendered without compensation and motivated only by counsel’s sense of duty to his profession and the public and Wisconsin is one of the minority of states which seeks to compensate court-appointed counsel and does not call upon the legal profession for full contribution. Because the legal profession is a privileged one, it still has the duty to furnish its services to the indigent and courts have a right to call for counsel and expect members of the bar to accept appointments without remuneration or with partial remuneration. However, this state has considered it part of its public duty not only to furnish counsel in felony cases but to pay compensation therefor. This has been the rule almost as long as Wisconsin has been a state. See Carpenter v. Dane County (1859), 9 Wis. 249 (*274). However, we believe the lawyers of this state are and will be devoted to their duty to render adequate and efficient service to indigents whether or not they receive compensation comparable to private practice.

The case must be remanded to permit the trial court to hold a hearing and redetermine the reasonable compensation and expenses to be paid Mr. Schwartz.

By the Court. — Order reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

        Conway v. Sauk County, supra.

        Touchett v. E Z Paintr Corp. (1961), 14 Wis. (2d) 479, 111 N. W. (2d) 419.


source: Caselaw Access Project

author: DieteRich, J. Per Curiam

license: Public Domain

text:
    Lingott, Appellant, v. Bihlmire, Respondent.

      April 28

    June 2, 1964.

      For the appellant there were briefs and oral argument by Frederick F. Hillyer of Madison.
    For the respondent there was a brief by Genoar & Braden and Berwyn B. Braden, all of Lake Geneva, and oral argument by Berwyn B. Braden.

       Motion for rehearing denied, without costs, on July 20, 1964.

   DieteRich, J.

The action concerns a parcel of property known as “Stone Manor” in Walworth county. Appeals involving this property have been before this court on three previous occasions. See Syver v. Hahn (1956), 272 Wis. 165, 74 N. W. (2d) 803; Syver v. Hahn (1959), 6 Wis. (2d) 154, 94 N. W. (2d) 161, and Hahn v. Walworth County (1961), 14 Wis. (2d) 147, 109 N. W. (2d) 653. The facts are documented not only by the record on the instant appeal, but also in three volumes of the Wisconsin Reports, and it may be best to give some of its litigious history. In 1945, Soon K. Hahn was the owner of record of the property in question. On March 12, 1951, Hahn and his wife mortgaged the property to John Syver, and the mortgage was duly recorded in the office of the register of deeds for Walworth county. In the same year, Syver commenced an action in the Walworth county court to foreclose the mortgage, and Richard H. Lingott, the since-deceased husband of the present appellant, Carol Lingott, was the holder of a judgment lien on the property in the amount of $15,000, and was a party to the action. A judgment of foreclosure was entered on April 22, 1952, and thereafter two foreclosure sales were held pursuant to the judgment, neither of which was confirmed by the court due to the purchasers’ default. On July 2, 1954, the present appellant, Carol Lingott, was made a party to the 1951 foreclosure action by order of the county court. At the same time, Carol deposited the sum of $11,000 with the clerk of county court, and became subro-gated to the rights of the mortgagee and judgment holder, John Syver, pursuant to mandate of this court in Syver v. Hahn (1956), 272 Wis. 165, 168, 74 N. W. (2d) 803. The proceedings relating to the subrogation were not recorded, and Syver’s mortgage appears unsatisfied of record.

On September 21, 1954, Hahn and his wife executed a mortgage on the premises in the sum of $11,000 to Carol Lingott, and the mortgage was duly recorded. This mortgage remains unsatisfied of record. During the years 1948-1956, the city of Lake Geneva assessed general property taxes against the property in the total sum of $13,693.62. The taxes were not paid, and the tax certificates were sold to Walworth county. On December 11, 1959, the county served a notice of application for a tax deed to the premises on all interested parties — including Carol Lingott. This was the only notice of application given, and the deed was not taken until August 6, 1962. In the period between the notice and the actual taking of the tax deeds, Soon K. Hahn commenced an action in the county court of Walworth county to have the premises declared exempt from general property taxes. Carol Lingott was not a party to this action. The trial court entered summary judgment dismissing the complaint, and this court reversed in Hahn v. Walworth County, supra. The case was returned for trial and the county court found that the premises were properly assessed. On August 6, 1962, the county took a tax deed to the premises, which was duly recorded.

Carol Lingott commenced the instant action in the circuit court for Walworth county on January 10, 1963, and her complaint set forth two causes of action: (1) To set aside the tax deed to the county on grounds that no proper notice of application for such deed was served upon her, pursuant to sec. 75.12 (6), Stats.; and (2) to have the premises adjudged wholly exempt from general property taxes. The county moved for summary judgment on the first cause of action on the grounds that the notice was proper and that the circuit court did not have jurisdiction over the action because of the prior jurisdiction of the county court. On July 12, 1963, the circuit court entered an interlocutory summary judgment dismissing the first cause of action upon the grounds asserted in the county’s motion. Thereafter the county moved for summary judgment dismissing the second cause of action on grounds that: (1) The interlocutory judgment on the first cause of action extinguished Carol’s interest in the property; and (2) pursuant to said judgment, the circuit court could not assume jurisdiction due to the prior jurisdiction of the county court. Final judgment dismissing Carol’s complaint as to the second cause of action was entered on September 9, 1963. The plaintiff, Carol Lingott, has appealed from both judgments.

1. The first cause of action. Although the record of Hahn’s county court action is not before this court, the report of the decision on appeal in that action reveals that it was an action to set aside the tax sale of Stone Manor, and to enjoin the county clerk from issuing any deeds upon the tax-sale certificates held by Walworth county. See Hahn v. Walworth County, supra. Appellant Carol Lingott’s prayer for relief in the instant action is that the tax deed to Walworth county be declared null and void because of the inadequacy of the county’s notice of intention to take a tax deed. This question was not before the county court in Hahn’s action, nor was Carol Lingott a party to that action. Although the county court action resulted in judgment declaring that the county was entitled to the tax deed, there was no identity of parties, and the question of notice under sec. 75.12 (6), Stats., was not involved. Therefore, the county court judgment is not a bar to Carol’s circuit court action.

The appellant contends that the tax deed taken by Wal-worth county is void because the deed was taken more than one year after service of the notice in violation of sec. 75.12 (6), Stats. That section provides that no tax deed shall be taken upon any notice of application therefor after one year from the last date of service of such notice. The trial court, in dismissing appellant’s first cause of action, found that sec. 75.12 (6) is a statute of limitation, and thus could be tolled by the county court.

In the 1960 county court action commenced by Hahn against Walworth county, the county was temporarily enjoined from taking a tax deed. At the conclusion of that action, the court found that the limitation of time upon the taking of a tax deed had been tolled by the temporary injunction. The appellant’s argument is that sec. 75.12 (6) is not a statute of limitation, but rather a condition precedent, and thus could not be tolled by the county court. Two terms are used in every discussion of this question — “right” and “remedy.” In Manas v. Hammond (1934), 216 Wis. 285, 287, 257 N. W. 139, this court held that the notice-of-injury requirement of sec. 330.19 (5), Stats., was a condition precedent, rather than a statute of limitation, because the time requirement could not be said to affect either the right or the remedy directly, and was thus only a condition which must be fulfilled in order to secure the aid of the court. See also Nelson v. American Employers’ Ins. Co. (1952), 262 Wis. 271, 275, 276, 55 N. W. (2d) 13. The same is true of sec. 75.12 (6), Stats. This statute does not assume to limit the time in which a tax deed may be taken upon a certificate, but only limits the time during which the notice is to remain valid. The time limitation upon the validity of tax certificates is contained in another section, 75.20 (2), Stats., which provides that: “Tax certificates dated in 1946 and thereafter shall be void after 11 years following December 31 of the year in which such certificates were dated.” The limitation in sec. 75.12 (6) is not upon the validity of the certificates, it is merely a limitation upon the time after notice in which a tax deed must be taken. If the year runs out without taking the deed, notice may be given again. Properly construed, this limitation means that, although a party possessing a tax-sale certificate may take a tax deed to the property in question after a certain period of time has passed, he shall not be permitted to take this deed unless within one year after the last service of the notice of application, he shall actually take the deed. See Schultz v. Vick (1960), 10 Wis. (2d) 171, 173, 102 N. W. (2d) 272, where similar principles were applied to the notice-of-injury requirements of sec. 330.19, Stats. 1955.

We determine that sec. 75.12 (6), Stats., is in the nature of a condition precedent rather than a statute of limitation, and as such, it could not be “tolled” by the action of the county court. It follows that the issuance of the deed to Walworth county was in violation of this section, and must be set aside. Consequently, the judgment of the circuit court dismissing Carol Lingott’s first cause of action is reversed.

2. The second cause of action. Since we have determined that the tax deed is void, and that Carol Lingott does have an interest in the property, the question becomes whether the judgment in Hahn’s prior county court action is a bar to Carol Lingott’s second cause of action.

Carol Lingott’s complaint in the instant action alleged that Hahn purchased the property as agent for a nonprofit foundation for the purpose of using the premises as a school; that the premises were operated by the foundation during the years in question solely for benevolent purposes; and that therefore the property was wholly exempt from general property taxes pursuant to sec. 70.11 (4), Stats., which exempts property owned and used by educational, benevolent, and religious institutions from the general property taxes. Referring again to the decision of this court on the appeal from the county court action, Hahn v. Walworth County, supra, it appears that Hahn’s complaint in the county court action alleged that he purchased the property as agent for a nonprofit foundation for the purpose of operating a school; that during the years in question the premises were used by the foundation for educational purposes; and that the property was thus exempt from taxation under sec. 70.11 (4). This court remanded the case for trial after holding that summary judgment was improper, and upon the remand to the county court it was found that the property taxes were properly assessed on the premises. No appeal was taken from this judgment.

In Missionaries of La Salette v. Michalski (1962), 15 Wis. (2d) 593, 113 N. W. (2d) 427, the plaintiff society sought relief from 1954 and 1955 tax levies against its property pursuant to the exemption allowed to educational, religious and benevolent institutions by sec. 70.11 (4), Stats. There had been a previous action involving the society wherein a village claimed that the establishment of a mission house violated the zoning ordinances. In that action it was found that the property was used exclusively for residential purposes. See Missionaries of La Salette v. Whitefish Bay (1954), 267 Wis. 609, 66 N. W. (2d) 627. This court held that the prior action was conclusive on the question of the use of the property in that the determination that the mission was used solely as a private residence precluded a finding that it was used exclusively for religious purposes.

The appellant is not the owner in fee, but the mortgagee of the property, and her claim for the tax exemption is based upon the identical facts and allegations raised by the owner in a prior attempt to have the property declared tax exempt in the county court, although there is no identity of parties, as there was in the Missionaries Case, there is, privity between Hahn and the appellant, for her claim that the property is exempt from taxation is based entirely upon the nature of Hahn’s ownership, which Hahn had litigated in the prior action. Behind the phrase res judicata lies a rule of reason and practical necessity. McCourt v. Algiers (1958), 4 Wis. (2d) 607, 613, 91 N. W. (2d) 194. Under the somewhat peculiar facts revealed by the record in the instant action, to allow the mortgagee to relitigate the very facts and the very issues raised by the mortgagor in a prior action would be not only unreasonable, but also contrary to practical necessity.

Applying the above rules to the facts of the instant action, we determine that the appellant, Carol Lingott, is precluded from raising the question of the taxable status of the property in the circuit court. The judgment dismissing the plaintiff’s second cause of action is therefore affirmed.

By the Court. — The interlocutory judgment of the circuit court dated July 12, 1963, dismissing the plaintiff’s first cause of action, is reversed, and the cause remanded with directions to enter judgment declaring the tax deed issued to Walworth County, and the subsequent conveyance of the property to John W. Bihlmire, null and void. The judgment of the circuit court dated September 9, 1963, dismissing the plaintiff’s second cause of action is affirmed.

The following memorandum was filed July 20, 1964:

Per Curiam

(on motion for rehearing). We reaffirm our opinion on the merits and deny the motion for rehearing without costs. In the briefs on the motion for rehearing our attention has been called, for the first time, which we deem timely in this case, to the provisions of sec. 75.61 (1), Stats., which reads as follows:

“75.61 Tax sales. (1) One year limitation. ... In every action brought to set aside any such sale, or to cancel any tax certificate, or to restrain the issuing of any tax deed upon any ground whatever not going to the validity of the assessment and affecting the groundwork of such tax or special assessment, the plaintiff, if he show himself otherwise entitled to judgment, shall, before the entry thereof within a reasonable time to be fixed by the court, pay into the court for the person or persons claiming under such tax sale or tax certificate the amount for which such land was sold, and the amount paid by such person or persons for taxes levied upon the premises subsequent to such sale, with interest on all such amounts at the rate of 8 per cent per annum from the times of payment until the said money be so paid into court; and in default of such payment within the time so fixed the defendant shall have judgment in the action. This provision as to the payment into court to be made by the plaintiff shall apply to all actions brought to cancel any tax deed, or to remove the cloud upon any title created by any tax certificate or tax deed where the action impeaches the tax deed or tax certificate upon any grounds whatever not affecting the groundwork of the tax for the nonpayment of which such deed or tax certificate was issued.”

The mandate should be modified in accordance with the requirements of the statute and hence the original mandate on this appeal is withdrawn and the corrected mandate should read as follows:

By the Court. — The interlocutory judgment of the circuit court dated July 12, 1963, dismissing the plaintiff’s first cause of action, is reversed, and the cause remanded with directions to enter judgment under sec. 75.61 (1), Stats., setting aside and adjudging null and void the tax deed issued to Walworth county and the subsequent conveyance of the property to John W. Bihlmire, all on condition that the plaintiff make payment into court of such amount as she may be ordered to pay by the court in accordance with the provisions of sec. 75.61 (1). The judgment of the circuit court dated September 9, 1963, dismissing the plaintiff’s second cause of action is affirmed.

       "No tax deed shall be taken upon any notice of application therefor after one year from the last date of service of such notice.”

       See mandate in Bebb v. McGowan (1932), 208 Wis. 400, 243 N. W. 460.


author: Gordon, J.

text:
    Zeisler Corporation, Respondent, v. Page, Appellant.

      April 29

    June 2, 1964.

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

    For the respondent there was a brief and oral argument by William J. Sauer of La Crosse.
   Gordon, J.

As a defense to this action to quiet title, the defendant attempted to show that she was the owner of at least a portion of the disputed property under a deed of conveyance. She also defended on the ground that she held that same portion of the property under color of title for ten years or more within the meaning of secs. 330.06 and 330.07, Stats. Further, she urged that she was entitled to the property by reason of her adverse possession for twenty years or more within the meaning of secs. 330.08 and 330.09.

We find no difficulty in supporting the trial judge’s interpretation of the defendant’s deed as failing to give her record title to the disputed area. The defendant holds title to certain lands in the vicinity of the “accretion area,” and she disputes the trial court’s finding which established the southern boundary of the defendant’s property as 119.89 feet south of the south line of Gillett street. Upon the evidence before the trial court, we deem the southern boundary to have been properly determined. Such determination is consistent with the two deeds under which the parties claim record title.

Because of the ambiguity in the defendant’s deed, it is arguable that the defendant was justified in attempting to come within secs. 330.06 and 330.07, Stats., so as to claim a holding under color of title for ten years or more. However, in any event, the real thrust of the defendant’s claim rests upon purported adverse possession whether the period involved is ten or twenty years.

The disputed area was created primarily through fill having been deposited there from approximately 1928 until 1957. Mrs. Page’s husband had been in the contracting business, and he had deposited considerable fill in the “accretion area.” The Pages had also invited others to make deposits of fill there.

The defendant urges that her use of such filled-in area qualified as adverse possession. There was testimony to the effect that the defendant cultivated the area by pulling weeds and cutting willows for firewood. She also caused it to be used as a playground for children. On the riverbank Mrs. Page established a dock, which the trial judge observed was merely a wooden structure floating on barrels. For a time a garden was maintained there by the defendant. Although they were not in existence at the time of the trial, it was contended by the defendant that several buildings had been erected or moved onto the land in question, and at times from 1928 these dwellings were rented to various tenants.

There was evidence that the plaintiff’s lessee, who operated a supper club on the plaintiff’s property, entered into a rental agreement with the defendant which entitled said lessee to traverse the disputed area in order to have access to the waterfront. In addition, certain receipts for property taxes paid by the defendant were placed into evidence. This, too, is urged as proof of her adverse possession.

The defendant further supports her contention that she had gained adverse possession of this property by pointing out that when the city of La Crosse desired to dredge the Black river for the purpose of establishing a municipal bathing beach in 1946 and the city realized that the construction would cause sand to spill over onto the disputed area, the city secured the consent of the defendant’s mother for such intrusion.

The contention is also made that Mr. Zeisler, on behalf of the plaintiff, wrote a letter which conceded the defendant’s title to the disputed land. Mrs. Page stresses the fact that the letter contained the following sentence:

“One of the stockholders of the Zeisler Corp. suggested that we sell the west one hundred feet of our land between Gillette and Iron Streets which is east of your land.”

The trial court carefully reviewed the foregoing evidence and concluded that it did not establish adverse possession. With reference to the dumping, the court concluded that the public in general regarded it as a dumping ground and that the defendant’s use was not exclusive. Although there were taxes paid by Mrs. Page, buildings erected by her and property rented out by her, the trial court was not convinced that these incidents actually related to the disputed property. He also found vagueness and indefiniteness with respect to the maintenance of the garden and the other physical uses which the defendant claims to have made of the property.

In summary, the trial court concluded that such use as the defendant made of the property was neither precise, continuous, nor significant. See Seybold v. Burke (1961), 14 Wis. (2d) 397, 404, 406, 111 N. W. (2d) 143; Litel v. First Nat. Bank of Oregon (1928), 196 Wis. 625, 632, 220 N. W. 651. It also concluded that the letter written by Mr. Zeisler did not constitute an admission that the defendant owned the area in question. There is no contention that the area in question was inclosed so as to come within sec. 330.09 (1), Stats.

Our conclusion is that the trial court’s determination was not against the great weight and clear preponderance of the evidence. It was the burden of the defendant to establish the claim of adverse possession on the part of herself or her privies, and we affirm the trial court’s conclusion that she failed to do so. In Illinois Steel Co. v. Budzisz (1900), 106 Wis. 499, 514, 81 N. W. 1027, 82 N. W. 534, we said:

“Adverse possession should be strictly construed, all reasonable presumptions being made in favor of the true owner, including the presumption that actual possession is subordinate to the right of such owner.”

In Stone Bank Improvement Co. v. Vollriede (1960), 11 Wis. (2d) 440, 447, 105 N. W. (2d) 789, this court recognized the oft-repeated rule that “adverse possession is not to be made out by inference, but by clear and positive proof.” The sporadic occurrences shown by the defendant in the case at bar do not establish the exclusive possession which is one of the important factors in determining adverse possession. Burkhardt v. Smith (1962), 17 Wis. (2d) 132, 137, 115 N. W. (2d) 540.

Doubt is also cast upon the propriety of the defendant’s contention as to adverse possession by reason of the fact that the disputed area was built upon the bed of a navigable river. Under sec. 30.12 (1) (a), Stats., it is unlawful to deposit any material on the bed of a navigable river without having a permit granted by the public service commission. The defendant and her predecessors did not receive any such permit. The Black river is a navigable stream as defined by sec. 30.10 (2), and it would appear that the defendant did not have a legal right to deposit fill without permission of the state.

The appeal was taken from the judgment and only therefrom. After the judgment there was a motion by the defendant for a new trial based on newly discovered evidence, but no appeal was taken from the order which disposed of such motion. An appeal from a judgment does not bring before this court for review any order entered subsequent to the judgment. Schlichting v. Schlichting (1961), 15 Wis. (2d) 147, 160, 112 N. W. (2d) 149. The plaintiff made an appropriate objection and thus did not waive its objection by participating in a review of this issue on its. merits. Cf. Estate of Burns (1964), 23 Wis. (2d) 175, 179, 127 N. W. (2d) 239. Accordingly, the merits of the order denying the motion of the defendant for a new trial on the grounds of newly discovered evidence will not be reviewed by this court.

The plaintiff seeks to have the judgment modified by an allowance of additional costs. The plaintiff neglected to incorporate as an item of- costs in the judgment a bill of $100 from two surveyors. The trial court declined to modify the judgment, and we consider that in accordance with sec. 269.46 (1), Stats., it was within the trial court’s discretion whether to grant or deny such motion to amend the judgment because of counsel’s neglect. The trial court’s conclusion in this matter should not be disturbed.

By the Court. — Judgment affirmed.


author: Wilkie, J.

text:
    Firemen’s Annuity and Benefit Fund of Milwaukee and another, Respondents, v. Krueger, Treasurer, and another, Appellants.

      April 29

    June 2, 1964.

      For the appellants there was a brief by John J. Fleming, city attorney, and Cornelius J. Merten, assistant city attorney, and oral argument by Mr. Merten.

    For the respondents there was a brief by Habush, Gillick & Habush, attorneys, and Robert L. Habush and Howard A. Davis of counsel, all of Milwaukee, and oral argument by Robert L. Habush.

   Wilkie, J.

One issue is determinative of this appeal. It is: Are the appellants barred from seeking a review in this mandamus action, and in any subsequent proceeding, of any substantive issues that they could have raised relating to Mrs. Balestrieri’s claim in an appeal which they could have taken in the form of certiorari or otherwise from the board to the circuit court ?

The board entered its findings in December of 1961 and ordered payments to be made to the widow in accordance with its findings. Although the appellants complain about the sufficiency of the evidence in the proceeding before the board to support the board’s determination that the disability was caused by a work-connected injury, the appellants did not avail themselves of the right to appeal in the form of “certiorari or otherwise” to the circuit court of Milwaukee county. The procedure for reviewing a board determination under the Firemen’s Annuity and Benefit Fund of Milwaukee Act was prescribed by charter ordinance No. 237, as follows:

“(e) Proof of disability shall be furnished to the retirement board, by at least one licensed and practicing physician, and said retirement board may require other evidence of disability. The retirement board shall be the sole and final judge in determining whether a person covered under this subsection shall be entitled to a duty disability benefit. A person feeling himself aggrieved by the board’s determination shall have the right to appeal to the circuit court for review on the law and the facts with respect to the determination of the retirement board pertaining to a duty disability benefit. Such review may be in the form of certiorari or otherwise, and the parties shall have the right to present additional testimony concerning the matters in issue, and the court may rule upon the facts and the law. . . .” (Emphasis added.)

This ordinance was enacted pursuant to ch. 279, Laws of 1953, which provided in part:

“Section 3. Chapter 423, Laws of 1923, section 1 (69) and (70) are created to read: (Chapter 423, Laws of 1923) Section 1. (69) For the purpose of giving to cities of the first class the largest measure of self-government with respect to pension annuity and retirement systems compatible with the constitution and general law, it is hereby declared to be the legislative policy that all future amendments and alterations to this section are matters of local affair and government and shall not be construed as an enactment of statewide concern. Cities of the first class are hereby empowered to amend or alter the provisions of this section in the manner prescribed by s. 66.01 of the statutes;

Thus, charter ordinance No. 237 was enacted pursuant to a legislative directive. The city council did not unilaterally alter the jurisdiction of a state court, as appellants contend. Rather it executed a power conferred by the legislature. The legislature did not abdicate its power to regulate co.urt jurisdiction; rather the legislature affirmatively exercised the power by permitting localities to confer jurisdiction upon state courts in the limited area of administration of the Firemen’s Benefit Fund. Charter ordinance No. 237 is not an unconstitutional encroachment by a locality on a matter of statewide concern.

By failing to seek review of the board’s order through the pattern of judicial review provided by the charter ordinance, the city is precluded from obtaining review of the sufficiency of the evidence of the work-connected injury or death/ in this proceeding and in any subsequent proceeding.

The appellants refused to honor the board’s order and despite the provisions of ordinance No. 237 for judicial review, they took no appeal by certiorari or otherwise. One year expired and the appellants still took no action so the respondents commenced their mandamus action. In prior decisions, where certiorari is a prescribed review procedure, we have suggested that the proceedings should be started in the same period running for appeal from a judgment or order in a civil action — six months. Despite this suggestion as to time we have applied the test of whether certiorari is sought within a reasonable time under the circumstances to determine whether or not the petitioner has been guilty of laches barring his petition for substantive review. Applying this test here, the city has been guilty of laches. The ordinance provided a clear path for a direct court review of the basic complaints raised by appellants concerning the interrelationship between the industrial commission and the board and concerning the sufficiency of the evidence to sustain the board’s finding of work-connected injury and death.

By refusing to honor the board’s order, and by failing to raise any of their basic complaints by a proper certiorari proceeding as prescribed, appellants forced the respondents into the commencement of their mandamus action. Mrs. Balestrieri was prejudiced by appellants’ course of action. She was without her source of income (Dominic) and the benefit ordered by the board.

Although we conclude that the appellants have failed to institute certiorari proceedings in a reasonable time and the city has been guilty of laches, we believe that review proceedings, where certiorari is permitted, will be more orderly and certain if such proceedings are started within six months from the judgment or order protested, the time for taking an appeal in a civil action. Henceforth, where such certiorari proceedings are permitted, they must be commenced within six months.

One procedural question remains: Because the appellants failed to initiate a certiorari proceeding, are they barred from asserting their claim of interrelationship between the findings of the industrial commission and those of the board ?

When appellants claim that the determination by the industrial commission under the Workmen’s Compensation Act that the particular injury of Balestrieri was not causally related to an accident occurring within the scope of employment, is res judicata upon the retirement board administering sec. 1 (50) (a) and sec. 1 (34) (a) and (b) of the Firemen’s Annuity and Benefit Fund of Milwaukee Act with respect to a finding by' the board under that act of “injury incurred in the direct performance of one or more specific acts of duty” or “death . . . while on duty,” they are asserting a matter of affirmative defense and are raising a question on the merits, and not of jurisdiction. This claim may not properly be raised and adjudicated collaterally in this mandamus proceeding.

Not having availed themselves of the exclusive review procedure prescribed by ordinance, and not having raised this question in such review proceedings, the appellants have waived their right to raise the merits of this claim in either this proceeding or in any subsequent proceeding.

By the Court. — Judgment affirmed.

        Consolidated Apparel Co. v. Common Council (1961), 14 Wis. (2d) 31, 109 N. W. (2d) 486; Blooming Grove v. Madison (1958), 4 Wis. (2d) 447, 90 N. W. (2d) 573; Wurth v. Affeldt (1953), 265 Wis. 119, 60 N. W. (2d) 708, 40 A. L. R. (2d) 1376.

       Ibid.

        Consolidated Apparel Co. v. Common Council, supra.


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

text:
    Neff, Respondent, v. Industrial Commission, Appellant.

      April 29

    June 2, 1964.

      For the appellant Industrial Commission there was a brief by Arnold J. Spencer, chief counsel of the unemployment compensation division, and Max J. Peltin, attorney, and oral argument by Mr. Spencer.

    For the respondent there was a brief by Richard A. Hol-lern, attorney, and Beckwith & Hollern of counsel, all of Madison, and oral argument by Richard A. Hollern.

   Beilfuss, J.

Broadly stated the issue is:

Is there credible evidence in the record to sustain the finding of the Industrial Commission ?

Pertinent statutes and commission rules made pursuant to the statute are as follows:

“108.01 Public policy declaRation. Without intending that this section shall supersede, alter or modify the specific provisions hereinafter contained in this chapter, the public policy of this state is declared as follows:
“(2) The economic burdens resulting from unemployment should not only be shared more fairly, but should also be decreased and prevented as far as possible. A sound system of unemployment reserves, contributions and benefits should induce and reward steady operations by each employer, since he is in a better position than any other agency to share in and to reduce the social costs of his own irregular employment. Employers and employes throughout the state should co-operate, in advisory committees under government supervision, to promote and encourage the steadiest possible employment. A more adequate system of free public employment offices should be provided, at the expense of employers, to place workers more efficiently and to shorten the périods between jobs. Education and retraining of workers during their unemployment should be encouraged. Governmental construction providing emergency relief through work and wages should be stimulated.
tt i)
“108.02 (18) Eligibility. An employe shall be deemed ‘eligible’ for benefits for any given week of his unemployment unless he is disqualified by a specific provision of this chapter from receiving benefits for such week of unemployment, and shall be deemed ‘ineligible’ for any week to which such a disqualification applies.”
“108.04 (2) Registration for work, (a) An employe shall be deemed eligible, for waiting period or benefit purposes, as to any given week for which he receives no wages, only if he has within such week registered for work in such manner as may then be prescribed by commission rules; provided that, if the commission finds that there are conditions under which an employe cannot reasonably be required to comply with the foregoing registration requirement, the commission may by general rule waive this requirement under such stated conditions. Each employer shall inform his employes of the foregoing registration requirement, in such reasonable manner as the commission may from time to time prescribe.”
“Ch. Ind-UC 126 Registration for work, and notice of unemployment. Sec. Ind-UC 126.01, 3 Wis. Adm. Code, Manner of registering for work, and the effect of such registration. (1) Pursuant to section 108.04 (2) (a), Wis. Stats., an employe shall be eligible, for waiting period or benefit purposes, as to any week or other designated period of his total unemployment, only if he has within such week or other designated period registered for work through a public employment office.
“(2) An employe thus registering for work shall be presumed willing and able to accept any suitable employment that might be offered him, except that a representative of the commission may test this presumption through questioning of the employe at the time he files his claim for benefits and through other procedures. A claimant will not be deemed as having registered for work if it is determined by any of these procedures that his physical condition or his personal circumstances remove or practically remove him from the labor market or that without good cause he is substantially restricting his opportunities to secure suitable employment.”
“108.09 (7) (a) Either party may commence judicial action for the review of a decision of the commission hereunder, provided said party (after exhausting the remedies provided hereunder) has commenced such judicial action within 30 days after a decision of the commission was mailed to his last known address.
“(b) Any judicial review hereunder shall be confined to questions of law, and the other provisions of ch. 102 of the 1959 statutes with respect to judicial review of orders and awards shall likewise apply to any decision of the commission reviewed under this section. Any such judicial action may be defended, in behalf of the commission, by any qualified attorney who is a regular salaried employe of the commission and has been designated by it for this purpose, or at the commission’s request by the attorney general.”
“108.04 (13) Notification as to ineligibility, (a) The commission may take administrative notice of any fact indicating an employe’s ineligibility, whether or not the employing unit has reported such fact or asserted the employe’s ineligibility under this chapter.”

The parties agree that the law of this state is that in reviewing the findings of fact of the Industrial Commission under ch. 108, Stats, (unemployment compensation), the reviewing court is bound by such findings if there is any credible evidence which would support such findings. Likewise if conflicting inferences exist it is for the commission to draw the controlling inference. Further, the credibility of the witnesses and the weight of the evidence lie exclusively within the province of the commission.

The claimant contends that the findings of the commission should be set aside because the evidence is insufficient to overcome the statutory presumption that claimant (employee) is deemed to be eligible, and upon the further ground that there is no credible evidence to support the finding of ineligibility.

Sec. 108.04 (2), Stats., as set forth above, and sec. 108.02 (18) provide in substance that an employee shall be “deemed eligible” for any week in which he received no wages (except waiting period) if he has registered for work in the manner prescribed by the commission.

The commission rules quoted above provide in substance that if the employee registers for work at a designated employment office he shall be presumed willing and able to accept suitable work offered to him, but the commission may test the presumption by an investigation.

We hold the commission rule to be reasonable and valid. The statute and the rule create a presumption for the benefit of the employee. For the practical application of the statute and for the convenience of the employee, he is not required to prove his eligibility each week. When an investigation reveals facts inconsistent with eligibility the presumption disappears and he is not deemed to have made a valid registration. He, of course, may demand a hearing and a review for a factual determination. Such a hearing and review were held wherein it was determined that he was not eligible.

The circuit court upon judicial review was of the opinion that there was no evidence of sufficient probative value to refute the claimant’s assertion that if a job was offered to him he would quit school to take the job, if quitting school was necessary, and that there was no evidence to sustain the conclusion that his personal circumstances removed or practically removed him from the labor market. The trial court stated in its memorandum opinion that the claimant’s testimony was unequivocal on this point.

A review of the record as to this aspect reveals: That the claimant in his written request for a hearing and in his testimony did state, “I am willing to drop school and take steady work at a reasonable wagethat he did not refuse employment, but none was offered; that he did make some attempt to secure employment. However, his testimony also reveals the following:

“Q. How often per week have you looked? A. It varies— usually once a week.
“Q. At least once a week? A. Yes.
“Q. Any special kind of work that you were looking for? A. No, I haven’t.
“Q. For any kind? A. Yes, sir.
“Q. When you were looking for work, did you tell them you were attending college? A. No, I told them I just wanted a job.
“Q. If you got a full-time job, would you quit it to go back to school? A. I don’t think I could say yes or no.
“Q. Can’t say at this time? A. Uh-huh.
“Q. Did Mr. Reinerio of Reinerio Beverages contact you about work? A. No, I contacted him.
“Q. Did he offer you work ? A. No.
“Q. He didn’t have any? A. He said he was looking for a driver.
“Q. But what? A. Pardon.
“Q. He was looking for a driver but what — why didn’t you get the job? A. He didn’t give no reason. Somebody told him I was going to Northland.
“Q. You didn’t tell him that ? A. No.
“Q. And therefore he didn’t want to hire you? A. No, he said, ‘I’ll let you know.’
“Q. He never contacted you again? A. No, sir.
“Q. Did you tell him that if you took the job that eventually you would quit to go to school? A. I told him that— My brother had worked on the truck with the previous owners and that he didn’t get very good runs with them.
“Q. I mean did you tell him that you would eventually quit the job to go back to school? A. I told him that if it didn’t prove satisfactory I probably would.”

The major factual points at issue were under what circumstances he would quit school to accept employment and the extent and sincerity of his personal efforts to find work.

His testimony as to his willingness to quit school is a self-serving declaration of future intention. Under the circumstances the testimony was clearly admissible but because it was self-serving and a declaration of future intention the commission was not bound to accept his testimony as a verity but was obligated to test his credibility and weigh his evidence together with other evidence to determine the fact. His testimony was an assertion of his mental state as to future acts. No testimony was available to refute or confirm it. From the testimony quoted the commission could determine that his demeanor and his response to pertinent and compelling questions was evasive and equivocal.

In addition to this testimony the commission could consider his work history in the Milwaukee area, which is by far the largest labor market in Wisconsin; his removal from Milwaukee to Ashland, a surplus labor area and a seasonal labor area; his personal convenience in Ashland as contrasted to Milwaukee; educational opportunities available to him in Milwaukee together with probability of employment, and that the education he was pursuing (elementary education) was unrelated to the type of work he had been doing.

In weighing these evidentiary factors, coupled with the commission’s assessment of his credibility, contrasted to his assertions that he would quit school to accept employment, we cannot conclude that the commission acted arbitrarily or capriciously, or in excess of its powers, or that its findings were based on its cultivated intuition, or that its findings are contrary to the undisputed credible evidence.

The findings of the commission that the personal circumstances of the claimant removed or practically removed him from the labor market and that he failed to register for work, beginning week 42, within the meaning of sec. 108.04 (2), Stats., and sec. Ind-UC 126 of the Wisconsin Administrative Code is supported by credible evidence. The order of the commission that the claimant is ineligible for unemployment benefits beginning in week 42 of 1961 and until he is available for work on the general labor market should be reinstated.

By the Court. — Judgment reversed with directions to dismiss the complaint.

CuRRiE, C. J.

(concurring). The court’s opinion holds that plaintiff Neff’s testimony, of his willingness to drop out of Northland College and accept a full-time job if one were offered to him, was a self-serving declaration of future intention which the commission was not bound to accept as a verity. This facet of the case brings into focus an oft-repeated rule laid down by this court that positive uncontradict-ed testimony as to the existence of some fact, or the happening of some event, cannot be disregarded by a court or jury in the absence of something in the case that discredits the same or renders it unreasonable against probabilities. Pagel v. Holewinski (1960), 11 Wis. (2d) 634, 641, 106 N. W. (2d) 425; State v. Public Service Comm. (1962), 16 Wis. (2d) 231, 238, 114 N. W. (2d) 454; Thiel v. Damrau (1954), 268 Wis. 76, 85, 66 N. W. (2d) 747; Schulz v. General Casualty Co. (1939), 233 Wis. 118, 129, 288 N. W. 803; Quass v. Milwaukee Gas Light Co. (1919), 168 Wis. 575, 578, 170 N. W. 942; Engmann v. Estate of Immel (1884), 59 Wis. 249, 251, 252, 18 N. W. 182. See also Johnson v. Aetna Life Ins. Co. (1914), 158 Wis. 56, 61, 147 N. W. 32.

In the instant case this testimony by Neff as to his willingness to quit college, if a full-time job were offered him, is, in the writer’s opinion, covered by the proviso of the rule that permits the finder of fact to disregard positive uncontra-dicted testimony when it is against reasonable probabilities. This type of situation is frequently presented in automobile accident cases where one driver is killed or suffers amnesia and the only testimony given is by the other driver or by his guest passengers. For an example of this, see Voigt v. Voigt (1964), 22 Wis. (2d) 573, 126 N. W. (2d) 543. In this type of situation the trier of facts may disregard the testimony of interested parties or witnesses which is contradicted by a reasonable inference drawn from physical facts. Pagel v. Holewinski, supra, at page 641. Even where the physical facts are such as not to give rise to a reasonable inference which contradicts the testimony of the interested parties or witnesses, the trier of the facts should be permitted to disregard such uncontradicted testimony.

In my opinion, the rule in question should be modified with respect to uncontroverted testimony given by interested parties or witnesses as distinguished from disinterested witnesses. The rule is a proper one to invoke with respect to uncontroverted testimony of even an interested party or witness where the fact testified to is subject to corroboration or contradiction by other evidence. In such a situation it can be assumed that the party adversely affected by such testimony would have controverted it if untrue. However, where such uncontroverted testimony of an interested party or witness relates to a fact with respect to which it would be impossible to produce any other evidence of contravention, the trier of the fact should be permitted to reject such testimony if it concludes that it is false. The credibility of an interested party or witness in such a situation should be exclusively for the trier of fact.

        Marathon Electric Mfg. Corp. v. Industrial Comm. (1955), 269 Wis. 394, 402, 69 N. W. (2d) 573, 70 N. W. (2d) 576.

        Cooper’s, Inc., v. Industrial Comm. (1962), 15 Wis. (2d) 589, 593, 113 N. W. (2d) 425.

         Copland v. Department of Taxation (1962), 16 Wis. (2d) 543, 555, 114 N. W. (2d) 858.

       2 Wigmore, Evidence (3d ed.), p. 714, sec. 581.

       The case of Richardson v. Industrial Comm. (1957), 1 Wis. (2d) 393, 84 N. W. (2d) 98, relied upon by the claimant, must be distinguished on the facts in that Richardson’s testimony was as to uncompleted past acts tested by attendant circumstances and not as to future intention. In Richardson the commission did not offer available verifying testimony and here no such testimony was available.


author: Currie, C. J.

text:
    Mack, by Guardian ad litem, and another, Plaintiffs and Respondents, v. Decker, Defendant and Respondent: Taft and another, Defendants and Appellants.

      April 29

    June 2, 1964.

      For the appellants there were briefs by Kivett & Kasdorf, attorneys, and Alan M. Clack of counsel, all of Milwaukee, and oral argument by Mr. Clack.

    For the respondents there was a brief by Charles J. Herró of Oconomowoc, and Robert T. McGraw of Waukesha, guardian ad litem, and oral argument by Mr. McGraw.

   Currie, C. J.

Appellants make these contentions on this appeal:

(1) There is no credible evidence to support the jury’s finding that defendant Taft was causally negligent in stopping his automobile on a public highway.

(2) If this court finds that there is credible evidence to support such finding, a new trial must be had because of prejudicial error.

The second contention is predicated on the refusal of the trial court to admit into evidence a written statement subscribed by plaintiff Patricia Mack, and on the instructions to the jury.

Jury Issue With Respect to Taft’s Alleged Negligence.

A determination of this issue requires a review of the pertinent evidence.

The accident occurred on a clear, warm afternoon in late June. The traveled portion of the highway is surfaced with blacktop with a marked center line and runs in a general easterly and westerly direction. A bathing-beach area along the north shore of Silver lake extends along the south side of the road, while to the north stands a building, housing a roller-skating rink. To the west of the scene of the accident is a hill over which the highway passes. Witnesses estimated the distance from the crest of the hill to the point of impact was from 165 to 400 feet.

At the time of the accident Patricia Mack was fifteen years of age and Decker was several years her senior. For a quarter to half a mile prior to the accident the Decker motorcycle, on which Miss Mack was a passenger, had been following the Taft automobile. Both were going in an easterly direction. As the Taft car went over the crest of the hill the motorcycle was 200 to 300 feet to its rear. No witness placed the speed of either vehicle from this time to the occurrence of the collision at more than 20 to 25 miles per hour. Slightly west of the top of the hill are two traffic signs for vehicles proceeding in an easterly direction. The first read “Slow Pedestrian Crossing” while the second read “No Parking on Highway.” The “Slow Pedestrian Crossing” sign obviously referred to the beach area where the accident occurred, although there does not appear to have been a marked crosswalk there.

Taft testified: As he came over the crest of the hill he saw two small children, whom he described as “toddlers,” on the south portion of the roadway, proceeding northerly. He gradually brought his car to a stop about 10 feet from the point where these children were crossing. In the meantime, another small child had come onto the south portion of the roadway followed by a lady. The latter child was directly in the path of the car when the collision occurred. The first point in time at which he was aware of the approach of the motorcycle was when he heard a screech made by the application of the motorcycle’s brakes. He then looked in his rearview mirror and saw the motorcycle coming directly at his car. He estimated that the collision occurred anywhere from twenty-five to forty seconds after he brought his car to a stop, and that it is possible it could be longer than that. It is undisputed that application of the car’s brakes activated the rear lights.

Taft’s version of the accident is corroborated by the disinterested witnesses. One of these was the beach lifeguard who at the time was seated at a picnic table close by. All witnesses, including Miss Mack and Decker, testified that Taft had stopped his car in his own traffic lane. The north half of the roadway was completely open and there was no traffic approaching from the opposite direction.

Decker testified that prior to the collision he had glanced across the lake to look at a radio tower. Pie then looked back at the road but did not realize Taft’s car was stopped until he was 50 to 75 feet away. He then slammed on his brakes and tried to go around the right of the stopped car. The rear of the motorcycle swerved to the left or north and went forward sidewise, striking the right rear bumper of Taft’s car. In other testimony Decker stated that when he looked back after glancing at the radio tower he did not know whether the Taft car was then moving, and did not know how the car was brought to a stop. He positively testified, however, that he did observe that “there was nothing there” in front of Taft’s car.

The police officer who investigated the accident testified that Decker stated after the accident that: “He [Decker] was traveling east on County Trunk BZ at approximately twenty, twenty-five miles an hour when he was looking across the lake at a radio tower, and all of a sudden he looked back and here this car stopped in front of him. He applied his brakes and tried to swerve to the right to go around him [the Taft car] but struck the bumper of the car.”

Patricia Mack testified as follows: She saw the Taft car ahead of the motorcycle for about one-half mile before the accident. The car disappeared over the hill, and she glanced at a radio tower across the lake. When she again looked back, the Taft car was still in motion 30 to 50 feet ahead, but its rear taillights (those activated by the brakes) were on. It stopped “real quick.” She also saw a lady and some children on the right or south gravel shoulder of the road but no pedestrians were then crossing the road. Patricia Mack also testified that: Decker slammed on the brakes of the motorcycle and that it started to skid. Miss Mack was thrown off as the motorcycle slid into Taft’s stopped car. She places the scene of the accident about 400 feet east of the crest of the hill.

It is conceded by the parties that if Taft stopped his car on the south half of the paved portion of the highway because of children then crossing or attempting to cross the highway, such momentary stopping would not violate secs. 346.51 (1) and 346.53, Stats. These parking statutes were not intended to cover a motorist stopping under such circumstances. Reuhl v. Uszler (1949), 255 Wis. 516, 524, 39 N. W. (2d) 444. See also, 2A, Blashfield, Cyc. Automobile Law and Practice (perm, ed.), p. 398, sec. 1495.

The great weight of the evidence is to the effect that Taft did stop his car and remained stopped because of the presence of children crossing and about to cross the highway. Such evidence alone would preclude a finding of negligent stopping on Taft’s part. Both Decker and Patricia Mack, however, testified that there were no children on the roadway in the path of the Taft car at the time Taft stopped, although Patricia Mack admitted seeing a lady and some children on the south shoulder. The credibility of the parties’ testimony was for the jury. If the jury believed this testimony, a jury issue was then presented as to whether Taft violated secs. 346.51 and 346.53, Stats., in stopping on the highway. The applicable test is whether a man of ordinary prudence similarly situated would reasonably conclude that the safety of the children present in the immediate area required that he then stop his car. If he would not so reasonably conclude, then the act of stopping violated these statutes and constituted negligence. Even a temporary stop may constitute a violation of these statutes. Jeffers v. Peoria-Rockford Bus Co. (1957), 274 Wis. 594, 80 N. W. (2d) 785, and Vidakovic v. Campbell (1956), 274 Wis. 168, 79 N. W. (2d) 806.

Appellants urge that there is no evidence in the record that sec. 346.51, Stats., was applicable because of the absence of any testimony establishing that the accident occurred outside of a business or residence district. Our review of the evidence discloses sufficient proof that it did occur outside of both a business district and a residence district.

Therefore, we conclude that this court cannot hold that there was no credible evidence to support the jury’s finding that Taft was negligent in stopping his car where he did even though this court might not have so found, had it been the trier of fact.

Admissibility of Patricia Mack Statement.

During the cross-examination by appellants’ counsel Patricia Mack was shown a written statement purporting to give her version of the accident. The statement consisted of one page and a portion of a second page, both of which were subscribed “Patricia Mack” and witnessed by one Zimmerman. The statement was dated June 29, 1959. Miss Mack was asked if the signatures were hers; she admitted they were. She was then asked this question and gave this answer thereto:

“Q. Now, I ask you, Miss Mack, if it is not true that on the 29th day of June, 1959, you made the following statement to Mr. John P. Zimmerman, who wrote it down and asked you to read this and sign it, did you not at that time tell him your name was Patricia Mack? A. I don’t remember reading this, I don’t remember this at all.”

The trial court then sustained an objection to appellants’ counsel reading from this statement in questioning the witness. At the conclusion of the cross-examination appellants’ counsel offered the statement in evidence, but the trial court excluded it.

Miss Mack was confined in a hospital at the time the statement was signed by her and she testified that while in the hospital she had been given sedatives for pain. Her mother, Mrs. Mack, during the course of the trial, testified that on the afternoon of June 29, 1959, an insurance man (referring to Zimmerman) had come to the hospital and had gone into Patricia’s room. Mrs. Mack remained in the waiting room. Mrs. Mack further testified that after he left she asked Patricia whether she had given him a statement and Patricia replied, “No.” Mrs. Mack further stated that Patricia had been given sedatives “that afternoon.” The hospital records, however, disclosed that the administration of sedatives had taken place before 8:15 o’clock that morning and not in the afternoon. At 11 in the morning the nurse had noted that Patricia was writing letters, at 2 o’clock in the afternoon she was visiting, and at 3 o’clock the notation was, “comfortable day.”

The excluded statement contradicted Patricia Mack’s testimony given at the trial. At the trial she testified that when she saw Taft’s car, after glancing at the radio tower, there were no pedestrians then crossing the highway. In the statement, however, she-stated.that the car had stopped for some pedestrians.

The admissibility of the statement is governed by Jensen v. Heritage Mut. Ins. Co. (1964), 23. Wis. (2d) 344, 352, 127 N. W. (2d) 228. Patricia Mack’s testimony that the two signatures on the statement were hers constituted sufficient authentication to entitle the statement to be admitted. Her testimony that she could not recall giving or reading the statement, and the conflicting evidence as to whether she was under sedatives at the time she signed it, go to the weight to be accorded the statement, not its admissibility. It was, therefore, error to have excluded the statement.

Instructions to the Jury.

The trial court included the following paragraph in the instructions to the jury:

“You are further instructed that the point between the Silver Lake Beach and the Silver Lake Roller Rink at or about the point of the accident was neither a marked or unmarked pedestrian crosswalk as defined by law. You are further instructed that where there is no marked or unmarked pedestrian crosswalk, the pedestrian is required to yield the right of way to vehicles upon the roadway.”

The giving of this instruction had the likely effect of telling the jury that, even if the jury found that there were no children directly in the path of the Taft car at the time it stopped but there were children on the shoulder of the road as testified by Patricia Mack, Taft was negligent for stopping because he had the right-of-way.

It was error to give this instruction under the facts of this case. The issues before the jury were not concerned with the possible negligence of the children. Ordinarily a motorist has a right to some reliance on the fact that, where he has the right-of-way, pedestrians will observe their statutory duty to yield. Crawley v. Hill (1948), 253 Wis. 294, 34 N. W. (2d) 123, and Grohusky v. Ferry (1947), 251 Wis. 569, 30 N. W. (2d) 205. However, there is no such right of reliance where the pedestrians are small children. In Lisowski v. Milwaukee Automobile Mut. Ins. Co. (1962), 17 Wis. (2d) 499, 508, 117 N. W. (2d) 666, it was held that this reliance “has no basis in fact when an autoist sees a child who cannot be held guilty of negligence for failing to yield the right-of-way.” The same principle is deemed applicable to all small children of tender years even though over the age of seven years. This is because of the known propensities of such children to dart across a highway in the path of an oncoming motor vehicle even though the latter has the right-of-way.

The trial court also refused to give an instruction requested by appellants with respect to the special duty which a motorist has in the presence of children on or near a highway. This requested instruction was framed in the language of Wis J I — Civil, Part I, 1045, as follows:

“Drivers of motor vehicles are chargeable with the knowledge that children of tender years do not possess the traits of mature deliberation, care, and caution of adults. The driver must increase his vigilance if he knows, or in the exercise of ordinary care should know, that children are in, or are likely to come into, his course of travel.”

In view of Patricia Mack’s own testimony that she observed children on the gravel shoulder, it was error not to give this instruction. On this point we deem pertinent the following statement made in Ruka v. Zierer (1928), 195 Wis. 285, 291, 218 N. W. 358:

“Children of tender years do not possess the traits of deliberation, care, and caution. These are traits which are acquired by age. This is a law of nature. This fact cannot be ignored by those who operate dangerous agencies in the presence of children.
“The defendant [motorist] in this case saw these children playing upon the sidewalk when he was 200 feet distant. He was at once charged with a degree of responsibility for their safety from any damage resulting to them from the operation of his automobile. This responsibility did not extend to that of an insurer of their safety. But it did hold him to the exercise of a high degree of care. From that time their safety should have been the subject of his anxious solicitude until he had safely passed them. He was charged with a knowledge of childish traits. To hold him to an anticipation that some one of them, in the course of their play, might suddenly dart out into the street is not at all unreasonable.”

The instruction with respect to the prohibitions and restrictions on parking of sec. 346.51, Stats., concluded with this sentence:

“The words, ‘parked’ or ‘stopped,’ in this section refer also to a mere temporary halt, unless the traffic lane ahead of the stopped vehicle is blocked.”

In light of what has already been stated herein with respect to the care which Taft owed to children on, or in close proximity to, the paved portion of the highway, this quoted sentence is unduly restrictive. The phrase commencing with the word “unless” should have been couched in substantially this language, i.e., “unless such temporary stop is occasioned by the exercise of due care to pedestrians crossing the highway or to small children in close proximity to the traveled portion thereof.”

We find one further portion of the instructions of which we disapprove. This consists of the last sentence of the following instruction:

“You are further instructed that the driver of the front car owes no duty to the driver of the car behind him except to use the road in the usual way, in keeping with the laws of the road; and until he has been made aware of the car behind by signal or otherwise, he has a right to assume either that there is no other automobile or other motor vehicle in close proximity to his rear or that being there, it is under such control as not to interfere with his free use of the road in front of and to the sides of him in any lawful manner. However, if the driver of the front car intends to deviate from his course of travel or suddenly stop or decrease his speed in such a manner that would create a hazard to a vehicle following in a lawful manner, he must then exercise ordinary care to make a lookout to the rear before making such movement.”

There was no evidence of any deviation by Taft but the testimony is undisputed that he brought his car to a stop in the south traffic lane. Under these facts there was no requirement that Taft exercise lookout to the rear before stopping where the application of his car brakes activated the red car taillights. Tesch v. Wisconsin Public Service Corp. (1957), 2 Wis. (2d) 131, 136, 85 N. W. (2d) 762.

Prejudicial Character of Errors.

We now pass on to the question of whether the erroneous ruling excluding the Patricia Mack statement and the errors in instructions were prejudicial to appellants so as to require the ordering of a new trial. We cannot escape the conclusion that these errors probably affected the jury’s answer to the question of the verdict which inquired whether Taft was negligent in stopping his car on a public highway. There are three factors which impel us to the conclusion that these errors probably had this result. First, some of the errors in the instructions were of a character which would be likely to influence a jury in the direction of finding Taft negligent. Second, this finding of negligence is against the great weight of the evidence. Lastly, the jury only attributed 15 percent of the aggregate negligence to Taft, thus indicating that it would not have taken much to tip the scales the other way and find him not negligent.

Thus, we conclude that a new trial is necessitated by the errors which occurred. The new trial will be ordered on all issues inasmuch as plaintiffs have so requested.

By the Court. — The judgment is reversed and the cause is remanded for a new trial not inconsistent with this opinion.

       Sec. 346.51 (1) provides in pertinent part as follows:
      “(1) No person shall park, stop or leave standing any vehicle, whether attended or unattended, upon the roadway of any highway outside a business or residence district when it is practical to park, stop or leave such vehicle standing off the roadway, but even the parking, stopping or standing of a vehicle off the roadway of such highway is unlawful unless the following requirements are met:
      “(a) An unobstructed width of at least 15 feet upon the roadway of such highway must be left opposite such standing vehicle for the free passage of other vehicles; and . . .
      “(b) Such standing vehicle must be capable of being seen by operators of other vehicles from a distance of 500 feet in each direction along such highway.”

       Sec. 346.53 provides in pertinent part as follows:
      “Parking prohibited in certain specified places. No person shall stop or leave any vehicle standing in any of the following places except temporarily for the purpose of and while actually engaged in loading or unloading or in receiving or discharging passengers and while the vehicle is attended by a licensed operator so that it may promptly be moved in case of an emergency or to avoid obstruction of traffic:
      “(6) Upon any portion of a highway where and at the time when parking is prohibited, limited or restricted by official traffic signs.”

       “Business district” and “residence district” for the purposes of sec. 346.51 are defined in subs. (6) and (50) of sec. 340.01, Stats.

       Sec. 328.44, Stats., provides that an infant who has not reached the age of seven is conclusively presumed to be incapable of contributory negligence.


text:
    Vorpahl and wife, Appellants, v. Gossman and others, Respondents.

      April 29

    June 2, 1964.

      For the appellants there was a brief and oral argument by E. A. Stecker of Appleton.
    For the respondents there was a brief by Don R. Herrling of Appleton, attorney, and John H. Lungren and M. R. Burmaster of counsel, both of Milwaukee, and oral argument by Mr. Herrling.

   Wilkie, J.

The first issue raised on this appeal is: Have the appellants waived their right to enjoin the construction of the Clark service station by virtue of their failure to commence an action seeking to enjoin the construction of a Standard service station immediately adjacent to their property?

The Standard Oil station lies immediately adjacent to the Vorpahls’ property. When construction of this building began, the Vorpahls consulted an attorney, seeking advice on whether the project could be enjoined as a violation of the one-gas-station-only covenant. The attorney apprised them that because the property upon which the station was being constructed had reverted to the county because of nonpayment of tax, and because the tax deed which transferred title to the person from whom Standard obtained the property did not expressly set forth the covenant, the restriction was no longer binding upon Standard with regard to that property. This opinion was confirmed by an attorney for Standard Oil. Whether or not the legal advice given was correct is immaterial. Certainly an acceptance of an attorney’s view as to the success of asserting rights in litigation cannot be deemed as a waiver of those rights in all subsequent contexts.

In 1962, the Vorpahls, observing the construction of the Clark station on lot 4 and the south half of lot 5, immediately commenced this action. They have properly preserved their rights to enforce the covenant, upon proof of the merit of their substantive claims.

The second issue raised on this appeal goes to the merits and may be stated as follows: Is the restrictive covenant, limiting construction of service stations in the Lynch plat to a particular lot other than the property in question, part of a comprehensive developmental scheme mutually beneficial to both Mary Lynch and all subsequent grantees, and therefore enforceable by injunction in the present case?

A restrictive covenant made binding, by the express terms of a warranty deed, upon.-the grantor and his heirs and assigns and the grantee and his heirs and assigns, shall be enforceable by injunction if the covenant is an element of a comprehensive developmental scheme which is mutually beneficial to both the grantor and the grantee and other adjacent property owners who purchase their property through the grantor, subject to the same covenant.

The critical question in the application of this general rule in the instant case is whether the restriction .on the number of filling stations in the Lynch plat can be regarded as part of a property development scheme mutually beneficial to all holders of property within the plat. The language of the restriction is unequivocal. Only lot 1 of block 3 could be used for filling station purposes. In what manner could this restriction confer benefits upon all other property owners in the plat ?

In 1927, when the plat was drawn, block 3 and the surrounding area were already the site for a number of retail commercial establishments. In the area there were four taverns, one including restaurant facilities, a greenhouse and an implement shop. In light of the unambiguous language of the covenant in issue, and the content of other covenants relating to the kinds of business that could be maintained in the area, it is clear that Mary Lynch intended the plat to become the location for a variety of small retail establishments. Persons purchasing through Mary Lynch, such as the plaintiffs who operate an upholstering and custom furniture shop, shared the same purpose. By maintaining a variety of establishments, each retailer could reinforce the position of the other. While on a trip to pick up one particular retail item, a customer could easily satisfy a number of other needs by visiting other retail shops located in the immediate vicinity.

However, a filling station is the classic example of a one-stop operation. One does not visit adjacent shops when having a car serviced for gas and oil. Therefore, to permit retailers in the Lynch plat to be surrounded by filling stations would be to deprive them of the neighborhood shopping-center effect which was the benefit they obtained in consideration for the limitation upon their power to alienate property purchased from Mary Lynch. While the effect of the restriction may well have been to increase the value of the parcel designated for filling station construction in 1927, it cannot be maintained that this was Mary Lynch’s sole motivation in creating the restrictive covenant.

Equity will not enforce restrictive covenants where the character of the neighborhood has so changed as to make it impossible to accomplish the purpose intended by such covenants. The change contemplated by this rule is qualitative, i.e., a shift from a residential area to commercial. No such change has been shown here. In 1927, the area already was a site for commercial retail establishments. The restrictions were to insure development of the area for commercial uses and the area has developed along these lines. The fact that the form of retail establishments has altered (the Valley Fair shopping center is located across the street from the property in question) and the fact that the one lot reserved for filling station purposes is now being used for a supper club, does not mean that the qualitative character of the area has changed. It is still commercially oriented, and the changes in the area are not such as to make unjust and inequitable the enforcement of the covenant under the circumstances that existed at the time the enforcement of the covenant was sought.

By the Court. — Judgment reversed, and cause remanded for further proceedings not inconsistent with this opinion.

        Boyden v. Roberts (1907), 131 Wis. 659, 111 N. W. 701; Schneider v. Eckhoff (1926), 188 Wis. 550, 206 N. W. 838; Hall v. Church of the Open Bible (1958), 4 Wis. (2d) 246, 89 N. W. (2d) 798.

        Ward v. Prospect Manor Corp. (1926), 188 Wis. 534, 206 N. W. 856.


text:
    Poehling, Respondent, v. La Crosse Plumbing Supply Company, Appellant.

      April 29

    June 2, 1964.

      For the appellant there was a brief by Steele, Smyth, Klos & Flynn of La Crosse, and oral argument by Robert D. Smyth.

    For the respondent there was a brief by Hale, Skemp, Hanson, Schnurrer & Skemp of La Crosse, and oral argument by T. H. Skemp.

   Hallows, J.

.The gist of the defendant’s argument is the abatement suspended the suit for all other purposes and a motion for summary judgment could not be granted. In Truesdill v. Roach (1960), 11 Wis. (2d) 492, 105 N. W. (2d) 871, we stated if a plea in abatement is true when interposed it either defeats the pending suit or suspends the suit in which it is interposed except when such plea is made on the ground there is another action pending and such action is dismissed prior to the hearing on the plea. Winner v. Kuehn (1897), 97 Wis. 394, 72 N. W. 227. However, until the plea is determined to be true it has no such effect, and the questions presented were whether there was an action pending and if so, whether the action was based for the same cause of action.

The plea in abatement was served on March 21, 1962, and apparently was not filed until October 23, 1962. In the meantime the defendant had admitted service on a notice of trial calling for a question of fact for the court. In April, 1962, plaintiff served its motion for summary judgment and to strike the defendant’s answer. At that time the only matter which could constitute an answer was the plea in abatement. In support of the motion for summary judgment an affidavit staled the defendant’s answer by way of abatement was filed for dilatory purposes and referred to an action in the small claims court for La Crosse county. It was also stated in the affidavit the small claims court had limited jurisdiction not exceeding $1,000 and the plaintiff’s prayer for relief in the present suit was in excess of $1,000, implying the two causes of action were essentially different because for different amounts. As a second ground it is stated the action in the small claims court was dismissed on February 12, 1962, and the present action was not commenced until the following day.

At the hearing on the motion no proof was offered in support of the plea in abatement. However, it was stipulated the court should take judicial notice of the record in small claims court. This record shows an action was commenced between the plaintiff and the defendant by the mailing of a summons on December 28, 1961; the record does not show the nature of the action or the amount claimed. It shows an appearance by the defendant but none for the plaintiff on the return date. There appears a notation that on February 12, 1962, plaintiff’s counsel called to have the case dismissed without prejudice and there is a dismissal noted under that date. This, however, is crossed out and a notation made under date of March 7th to the effect defendant’s counsel said no notice of dismissal was given to him. There is also a notation over the signature of the judge dated December 24, 1962, dismissing the case upon the agreement of the parties.

On this record the plaintiff claims there was no action pending at the time of the commencement of this suit and the defendant claims the record is clear that at the time of the making of the plea in abatement an action was pending in the small claims court. The defendant’s argument is based on the premise the plaintiff was not entitled to a dismissal in the small claims court. Whether the action was validly dismissed on February 12, 1962, or validly revived on March 7th by deleting the entry of dismissal is not decisive. Assuming an action was pending in the small claims court between the plaintiff and the defendant at the time of the hearing on the motion and plea, the record does not show the action involved the same cause of action. No complaint was served in the small claims court. Whatever the fact may be, it does not appear of record so as to constitute evidence nor are the facts strong enough to sustain an inference in support of the plea in abatement. The trial court held the defendant did not prove its plea. We can find no error in that holding. Contrary to the contention of the defendant in its brief, it was under an obligation to produce evidence at the hearing, which called forth the plea, and to establish the plea in abatement by competent evidence.

The plea in abatement having failed for lack of proof, the question then arises whether the trial court could proceed to decide the motion for summary judgment. Should the trial court have allowed the defendant to plead over and to answer the motion for summary judgment which had been pending some seven months ?

A plea in abatement is a common-law plea, the subject matter of which is now required to be pleaded either by demurrer or by answer. So far as the record shows the alleged pendency of the same cause of action in the small claims court should have been raised by answer. The only pleading on part of the defendant is a demurrer or answer, sec. 263.05, Stats., and any new matter constituting a defense must be so pleaded or it is waived, secs. 263.12 and 263.13. We consider the defendant waived whatever defense it had in not complying with these sections.

True, the defendant attempted to serve an answer after oral argument. This was long after the time for answer expired and no application so far as the record shows was made to the court for permission. The court denied service of the answer and ordered it stricken. No contention by the defendant was made this was error excepting that it has a right to try its defense in steps, first by a demurrer, then a plea in abatement, and finally an answer on the merits. However, all the defenses must be pleaded in the answer and not seriatim. Some separate defenses may be brought on for hearing separately, but the right to plead separate defenses consecutively in point of time as the prior ones are disposed of does not exist under our practice.

The defendant complains summary judgment should not have been granted as it was a substitute for a trial and there are substantial issues of fact to be tried. This argument can only be true if defendant is now allowed to put in an answer on the merits. On the state of the record the trial court was correct in determining there were no issues of fact to be tried. If the defendant had put in a defense to the merits in the answer, combining it with the subject matter of its plea in abatement, it would have been in a position to defend against the motion for summary judgment. Since no issue of fact was created on the motion for summary judgment, we find no error on the part of the trial court in granting the motion.

The defendant finally urges a reversal in the interest of justice. In support of this argument the defendant argues it is now ready to try the case on the merits and the previous demurrer and plea in abatement were necessary if the defendant was to be sued properly. However true this may be, the defendant did not proceed to defend the summary judgment motion or to take it seriously in view of its pending plea in abatement which the defendant did not proceed to bring on for hearing promptly. Under the circumstances, we do not think the doctrine of discretionary reversal in the interest of justice is applicable.

By the Court. — Judgment affirmed.

Wilkie, J., dissents.