text:
    Druml Company, Inc., Plaintiff and Respondent, v. Capitol Machinery Sales & Service Company, Defendant and Appellant: E & C Company, Intervening Defendant and Appellant.

      November 2

    November 30, 1965.

      For the appellants there was a brief by Glassner, Clancy & Glassner of Milwaukee, and oral argument by Lawrence Clancy.

    For the respondent there was a brief by George E. Frederick, attorney, and William P. McGovern of counsel, both of Milwaukee, and oral argument by Mr. McGovern.

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

   Hallows, J.

The main issue is whether the trial court’s finding that the screed was sold as a part of Lot 351 is contrary to the great weight and clear preponderance of the evidence. If the finding is not so contrary, this court will not upset it on appeal. Kirchen v. Gottschalk (1965), 26 Wis. (2d) 123, 131 N. W. (2d) 885; Estate of Rich (1965), 26 Wis. (2d) 86, 131 N. W. (2d) 909; Estate of Starer (1963), 20 Wis. (2d) 268, 121 N. W. (2d) 872. Applying the great-weight-and-clear-preponderance test, we stated in State ex rel. Isham v. Mullally (1961), 15 Wis. (2d) 249, 112 N. W. (2d) 701, on page 255:

“Considering the evidence as a whole requires the evidence on each side to be weighed and probabilities arrayed against probabilities at least sufficiently to determine whether those on the appellant’s side so manifestly outweigh those supporting the finding as to meet the great weight and clear preponderance necessary to disapprove the finding complained of. There may be credible evidence to sustain the court’s finding and which, if a jury verdict were involved, would end the inquiry on the appeal, but which in view of the whole evidence will not reasonably support the finding.”

Sales of personal property at auction prior to July 1, 1965, were regulated by sec. 121.21, Stats. (Uniform Sales Act), and by the promulgated terms and conditions of the auction. Keske v. Boeder (1919), 168 Wis. 369, 170 N. W. 247; Clarke v. Maisch (1920), 171 Wis. 225, 177 N. W. 11.

The defendants contend that according to the terms of the sale the screed was a part of Lot 354 and could not be sold as part of Lot 351. Neither lot listed in the pamphlet refers to a screed, but it is argued that the finisher had a center screed attached but no front screed while Lot 354 (the finishing spreader) did not have any screed attached to it and that the screed in question was the same color as the spreader, being a darker shade of orange than the finisher. Prior to the auction the screed was used interchangeably with the spreader and the finisher. There is some testimony the tag on the screed had Lot 351 on it but the chalk mark on the screed was #354. There is testimony by Mr. Druml and the auctioneer that when Lot 351 was being auctioned Mr. Druml asked the auctioneer whether the screed was part of the lot, thereupon the auctioneer asked Mr. Schwerm the president of Capitol Machinery Sales & Service Company and was told the screed was part of Lot 351. This testimony is disputed by witnesses for the defendants. The trial court believed the testimony offered by the plaintiff and the defendants attack the auctioneer’s credibility on the ground he might be liable for the screed to the plaintiff.

It is also claimed the plaintiff could not have purchased the screed at the auction because some two days thereafter upon discovering the screed had been removed from the auction site Mr. Druml phoned Schwerm and offered to buy the screed for some $200. During the conversation Schwerm claimed the screed went with Lot 354 purchased by Payne & Dolan for $300 and stated E & C Company had purchased it that morning for $1,004.25. Schwerm offered to sell the screed for $1,000 to Druml, which offer was refused. The $200 offer was explained by Mr. Druml on the theory the plaintiff had immediate use for the finisher with two screeds and it was worth that much to him to resolve any difficulty with Schwerm.

Whether or not the screed originally belonged to Lot 354, the auctioneer under the terms of the sale had a right to vary the lot and put the screed into Lot 351. Considering all the evidence and recognizing the trial court’s function to determine which witnesses to believe since their testimony is not inherently incredible, we do not believe the trial court’s finding that the screed was sold as a part of Lot 351 is against the great weight and clear preponderance of the evidence.

It is contended the plaintiff cannot now make a claim for the screed because the doctrine of caveat ew/ptor applies and further the plaintiff by taking possession of Lot 351 without the screed and surrendering the release has foreclosed itself from claiming ownership. At the time Lot 351 was struck down by the auctioneer to the plaintiff its representative was given what is designated a receipt which acknowledged the purchase of Lot 351 for $900 and described the property as “Lot 351, Finisher.” This receipt contained in substance paragraph 12 of the conditions of sale to the effect there were no guarantees or warranties of any kind as to the condition or quantity regardless of catalog description and that the property was purchased “as is” and “where is.” The buyer further agreed that “any pilferage, theft, damages or loss whatsoever to the property is now my responsibility.”

We do not believe the doctrine of caveat emptor or the language of the release or the disclaimer in paragraph 12 of the conditions of the sale to the effect that “No claims for deficiencies, shortages or otherwise will be considered by the seller after the goods have been delivered” has any application to the instant facts. The maxim has application to the quality and condition of the property and negates any warranty, but even under the doctrine a purchaser is entitled to receive what he buys. 77 C. J. S., Sales, p. 1160, sec. 315. No claim is made here concerning the quality or condition of the finisher or of the screed. The plaintiff’s complaint is merely that the screed after legal delivery to him as part of Lot 351 was taken off the auction site by the defendants in violation of its rights as owner.

Likewise, this is not a claim barred by the conditions of the sale. No claim is made for a deficiency after the goods have been delivered from the seller’s possession. Lot 351 including the screed was considered delivered under the terms and conditions of the auction at the time the receipt was given to the plaintiff by the auctioneer and signed by the plaintiff. The deficiency did not exist at that time but was created by the taking of the screed after the acceptance of the release, which provided that from that time the risk of loss through pilferage was the risk of the buyer. On that theory the plaintiff properly brought the replevin action against the defendants who took the screed.

It is argued the plaintiff accepted Lot 351 without the screed by removing the finisher from the auction site without the screed and giving up the release. On the Monday following the auction the plaintiff went to the auction site to remove its purchases. It had made purchases other than Lot 351. At that time the screed was lying on the ground near the finisher as it was at the time of the auction. Later in that day, unknown to the plaintiff, the defendant Capitol Machinery Sales & Service Company removed the screed when it removed Lot 354. When the plaintiff discovered the screed had been taken and upon being told Capitol had removed it, Druml phoned Schwerm who claimed the screed was a part of Lot 354 and not Lot 351. Under these conditions the removal of the finisher without the missing screed cannot be held to foreclose the plaintiff from continuing to assert the screed was a part of Lot 351 which it purchased.

By the Court. — Judgment affirmed.

Wilkie, J., dissents.


source: Caselaw Access Project

author: Gordon, J.

license: Public Domain

text:
    Village of Bayside, Respondent, v. Berthiaume, Appellant.

      November 2

    November 30, 1965.

      For the appellant there was a brief and oral argument by J. Jerome Finn of Milwaukee.
    For the respondent there was a brief by Suel O. Arnold, attorney, and James P. O’Neill of counsel, both of Milwaukee, and oral argument by Mr. O’Neill.

   Gordon, J.

The question before us is whether upon the instant facts the defendant was using his chauffeur’s license in the scope of his employment. The trier of the facts held that Mr. Berthiaume was not driving in pursuit of his employer’s business. We cannot reverse this judgment unless such finding is against the great weight and clear preponderance of the evidence. Milwaukee v. Thompson (1964), 24 Wis. (2d) 621, 130 N. W. (2d) 241; Weber v. Kole (1959), 7 Wis. (2d) 107, 95 N. W. (2d) 784.

It is conceded that the ordinance in question is identical to sec. 343.44 (1), Stats., which provides in part as follows:

“No person whose regular license has been duly revoked or suspended pursuant to the laws of this state, but whose chauffeur’s license is still valid, shall operate a motor vehicle upon any highway in this state other than as a chauffeur before he has obtained a new license or has had his license reinstated under the laws of this state.”

Whether Mr. Berthiaume’s use of his chauffeur’s license was proper depends on the application of the facts of this case to sec. 343.05 (1), Stats., which provides in part as follows:

“. . . no person shall operate a motor vehicle upon a highway in this state unless such person has a license issued to him by the department, which license is not revoked, suspended, canceled or expired. A valid chauffeur’s license satisfies the requirements of this section only when the licensee is operating a vehicle in the performance of his duties as chauffeur.”

The defendant spent approximately five hours at Anne’s Tavern upon his return from Chicago to Milwaukee. While he testified that he transferred some equipment from his own private car to the rental car at the tavern and also filled out some reports at the tavern, we are unable to conclude that the trial court’s ruling was unwarranted. This is true notwithstanding the fact that Mr. Berthiaume’s employer reimbursed him for his travel expenses to his home.

The fact that Mr. Berthiaume remained an employee until he arrived at his home may have been a significant factor in determining whether he would have been entitled to workmen’s compensation in the event of an injury. James v. Industrial Comm. (1962), 18 Wis. (2d) 239, 243, 118 N. W. (2d) 185; Richardson v. Industrial Comm. (1957), 1 Wis. (2d) 393, 396, 84 N. W. (2d) 98. However, this factor is not regarded as controlling in determining the question of whether his chauffeur’s license was being properly utilized. Indeed, it may well be argued that a contrary ruling in the case at bar would debase the statutory purpose of permitting an individual who has lost his regular driving privileges to use a chauffeur’s license only “in the performance of his duties as chauffeur.”

Mr. Berthiaume’s diversion was so extensive that the circuit court was correct in concluding that he was no longer using his chauffeur’s license in the scope of his employment.

By the Court. — Judgment affirmed.


author: Wilkie, J.

text:
    Huber Glass Company, Inc., Respondent, v. First National Bank of Kenosha, Appellant.

      November 2

    November 30, 1965.

      For the appellant there was a brief by Heide, Sheldon, Hartley & Thom and W. A. Sheldon, all of Kenosha, and oral argument by W. A. Sheldon.

    For the respondent there was a brief by Hammond & Tennessen and Willis R. Hammond, all of Kenosha, and oral argument by Willis R. Hammond.

   Wilkie, J.

The law concerning the duty of a bank towards its depositor was summarized in Wussow v. Badger State Bank. Since their relationship is grounded in contract, a bank can only make payments from a depositor’s account in accordance with proper authorization and is bound to restore any amount paid out on forged checks. A bank can only avoid this strict liability where the “depositor is in equity estopped to assert that the bank is absolutely liable.” To do this successfully, the bank must show (1) that it was without fault in failing to detect the forgeries, and (2) that the depositor was negligent in causing the money to be paid. In the instant case the trial court found as a matter of fact that (1) the bank “was negligent in not detecting the forgeries,” and (2) that the depositor “was not negligent.” To enable the bank to prevail against the depositor’s claim it must, on this appeal, demonstrate that both of these findings are against the great weight and clear preponderance of the evidence.

Thus, the two issues presented on this appeal are:

1. Is the finding of negligence on the part of the bank against the evidence?

2. Is the finding of no negligence on the part of the depositor against the evidence?

The Bank’s Negligence.

Two bank officials, George Gehring and Rudolph Scug-lik, explained the procedures employed by the bank when a check was presented for payment. When checks come in, they are totaled, listed, and sorted alphabetically in the proof department and are then routed to the bookkeeping department. There an employee, who is responsible for a particular alphabetical segment of accounts, examines each check for signature, date, amount, payee, and endorsement, and posts it to the appropriate account. The checks are then photographed, perforated, filed with others charged against the same account, and, at the end of the month, returned to the depositor. Every bookkeeping-department employee has a file containing signature cards for each of their depositors and are trained to recognize the various signatures. The checks are actually compared with the cards until the employee becomes sufficiently familiar with the signature. The head of the bookkeeping department is notified in case of a discrepancy. Scuglik, who was in charge of the bookkeeping department, could not say that each of the checks in question was processed according to the prescribed manner, but he assumed that this was done as a matter of routine. There was no testimony which would even suggest that there was a breakdown of this system in regard to the checks in question. As to the forgeries themselves, an examination of the bogus checks, respondent’s signature card, and several genuine checks which were introduced into evidence, demonstrates that “each forged signature was a reasonable facsimile of the genuine signature.”

The record establishes that the bank used a reasonable method to inspect and process the checks presented to it, and that the forgeries were not palpable or flagrant, as was the case in Wussow, where the bank was found to be negligent for failing to detect the obvious discrepancy in signatures. Thus, unless the mere fact that the forgeries did escape detection of itself raises an inference of negligence, the bank, in the absence of any affirmative evidence to the contrary, has sustained the burden of showing that it acted reasonably and with “due diligence.” Consequently there is no evidence to support the finding that the bank was negligent.

Negligence of Depositor.

Even if the bank is not guilty of negligence in failing to uncover the forgery, the depositor is nonetheless entitled to a restoration of the funds paid out in the absence of negligence on its own part. Thus, the crucial question here is whether or not the depositor was negligent.

A depositor is bound to examine the checks and statements returned by the bank, and this duty is violated when it neglects to do those things dictated by ordinary business customs and which, if done, would have prevented the wrongdoing.

In Wussow, the court held that the depositor had a duty

“. . . to examine his checks and the statement and discover whether the balance stated was correct and whether any forgeries were included and report any discrepancies in balance and any forgeries to the bank at once.”

It has been held that the reconciliation should include, as a minimum, the following steps: (1) A comparison of the canceled checks with the check stubs, (2) a comparison of the statement balance with the checkbook balance, and (3) a comparison of the returned checks with the checks listed on the statement.

There is no question that in the case at bar the procedure employed by the respondent in checking the returned checks and bank statements did not comply with these suggested steps. On the contrary, the undisputed evidence showed that the checks returned to respondent by appellant were received by Miller who made a preliminary examination of the statement. Presumably, the forged checks were removed from the others at this point. Then another employee of the bookkeeping department listed the checks numerically and determined the ones that were outstanding. After this, Miller would reconcile the bank statement with the check ledger. Huber got the checks at this point, but he testified that he never attempted to reconcile the bank statement with the books but left this task entirely up to Miller. When asked:

“Q. . . . You could have yourself taken the number of checks that were there, taped them, and added to it the outstanding checks and subtracted that from your total deposit and determined whether there was any discrepancy, could you not?”

Huber replied:

“A. I could have, but this is what I hired Mr. Miller to do.”

Miller advised Huber that the accounts were in balance. Between April 2, 1962, and April 19, 1963, respondent’s account was overdrawn on 14 different occasions. Although appellant mailed respondent a notice of overdraft each time, Huber did not recall having seen any of them. However, he did learn of the overdrafts from the monthly statement.

Miller’s methods were such that a comparison of the statement balance with the checkbook balance or a matching of the canceled checks with the actual charges on the statement would have quickly disclosed a discrepancy. Likewise, a perusal of the canceled checks, which were numbered consecutively, would have revealed that certain checks were missing and had been missing for some time. Yet Huber admittedly never complied with any of the suggested reconciliation practices, and, in fact, left full responsibility to Miller.

No other employee was assigned to verify Miller’s work. That there were 14 overdrafts in a year should have prompted Huber to investigate the state of his books even if ordinary business practices did not so persuade him. Under the circumstances, entrusting Miller alone with the job of reconciling the statements for three years, when a simple spot check of the records would have uncovered the forgeries, was unreasonable and the trial court’s finding of no negligence is contrary to the great weight and clear preponderance of the evidence. Huber, however, takes the position that the president of a company which employs between 50 and 75 people, and which writes almost 13,000 checks a year, cannot be expected to personally examine and/or reconcile the books. But the president himself is not required to do this; the task can be delegated to another employee. Modem business practice dictates at least some semblance of internal control. Estoppel from claiming against the bank is the price of blind reliance on a single employee.

The earliest checks forged on the depositor’s account by Miller appeared in August of 1960. Respondent’s negligence in failing to employ proper reconciliation methods preceded the one-year period — April, 1962-1963 —embraced by the depositor’s claim and he is estopped from asserting a claim against the bank for any check embraced in the lower court’s judgment.

Other courts have arrived at the same conclusion upon similar facts. In Clarke v. Camden Trust Co. the depositor never made an attempt to reconcile his bank statement himself but left this job entirely to his trusted secretary. After the secretary mysteriously disappeared, it was learned that she had forged 41 checks over a four-year period. The depositor was precluded from recovering from the bank because “any kind of reasonable examination” would have detected the forgeries. In Morgan v. United States Mortgage & Trust Co., a clerk who made deposits, wrote out checks, and received the canceled checks and statements from the bank, forged several checks on a trust account. As an examination, the trustees matched the genuine checks, which the clerk submitted to them, with the checkbook. The court held that the trustees-depositors failed in their duty of examination by not at least comparing the canceled checks with the statement or passbook returned by the bank.

By the Court. — Judgment reversed.

       (1931), 204 Wis. 467, 234 N. W. 720, 236 N. W. 687.

       Id. at page 474.

        Philipp Lithographing Co. v. Babich (1965), 27 Wis. (2d) 645, 135 N. W. (2d) 343; Hope Acres, Inc., v. Harris (1965), 27 Wis. (2d) 285, 134 N. W. (2d) 462, 135 N. W. (2d) 775.

         Clarke v. Camden Trust Co. (1964), 84 N. J. Super. 304, 312, 201 Atl. (2d) 762, 766.

        Wussow v. Badger State Bank, supra, footnote 2, at page 474. It should be noted that the rule as to who has the burden of proving that the bank was free of negligence has been changed by the Uniform Commercial Code, sec. 404.406 (3), Stats., providing that the burden is on the depositor to prove negligence by the bank as distinguished from the rule, applicable to the case at bar, that requires the bank to prove itself free of negligence.

        Mt. Pleasant v. Racine (1965), 28 Wis. (2d) 519, 137 N. W. (2d) 656.

        Wussow v. Badger State Bank, supra, footnote 2.

       Id. at page 471.

        Clarke v. Camden Trust Co., supra, footnote 5; Morgan v. United States Mortgage & Trust Co. (1913), 208 N. Y. 218, 101 N. E. 871.

        Wussow v. Badger State Bank, supra, footnote 2, at page 471.

        Clarke v. Camden Trust Co., supra, footnote 5; Stumpp v. Bank of New York (1925), 212 App. Div. 608, 209 N. Y. Supp. 396; see also 10 Am. Jur. (2d), Banks, p. 479, sec. 512, and p. 569, sec. 604.

        Supra, footnote 5.

        Clarke v. Camden Trust Co., supra, footnote 5, at page 766.

        Supra, footnote 10.


author: Heffernan, J.

text:
    Medlock, Appellant, v. Schmidt, Director of State Department of Public Welfare, Respondent.

      November 2

    November 30, 1965.

      For the appellant there was a brief by Barbee & Jacobson of Milwaukee, and oral argument by Lloyd A. Barbee.
    For the respondent the cause was argued by William A. Plate, assistant attorney general, with whom on the brief was Bronson C. La Follette, attorney general.
   Heffernan, J.

“When I use a word, it means just what I choose it to mean — neither more nor less.”

Humpty Dumpty in

Lewis Carroll

We agree with the decision of the learned trial judge, but conclude that the pardon document may on its face be construed to provide for a maximum sentence of thirty years.

The appellant in his brief and in oral argument placed great emphasis on the fact that the sentences of three to ten years for assault and robbery, and three to thirty years for assault and armed robbery, were by the document of commutation directed to be served concurrently with the sentence of fourteen to twenty-five years for the second-degree murder. He contends that the effect of this is to “squeeze” the thirty-year term into twenty-five years, thus reducing the maximum. He bases this conclusion upon the premise that it was unnatural for the author of the pardon document to refer to the three sentences in that order unless he intended the fourteen to twenty-five-year term to define the maximum.

In interpreting this document, however, it must be remembered that the sentences as originally imposed were consecutive, and that the term for fourteen to twenty-five years commenced in 1952 and at the time of the commutation was still running. The appellant was in fact still confined by virtue of the first of the three consecutive sentences, the one for second-degree murder. The other two would commence only when the preceding sentence had been served. It is conceded by both appellant and respondent that the effect of executive clemency was to make all three of the sentences concurrent. The effect is as though the sentencing judge had originally ordered three concurrent sentences. Since the record shows that one of the three sentences was partially served, it was necessary that the author of the document make it clear that the other two sentences were to be concurrent with it; hence, the very natural phrase, under the circumstances, that “the sentences of three to ten years” and “three to thirty years” (neither of which had started to run) were “to be served concurrently with the sentence of fourteen to twenty-five years,” which had been served in part. By virtue of this commutation directing the sentences to be served concurrently, there was in effect a sentencing nunc pro tunc, having the effect of starting all of the terms simultaneously with the one that had commenced in 1952. The ordinary and well-recognized rule is therefore applicable.

“Where sentences imposed at different times or for different periods of time run concurrently, the sentences run together during the time that the periods overlap; and the new or longer term does not necessarily terminate at the same time as the prior or shorter term.” 24B C. J. S., Criminal Law, p. 660, sec. 1996 (1).

The same rule, that the prisoner will be discharged at the expiration of the longest of concurrent terms, is recognized also by 15 Am. Jur., Criminal Law, page 123, sec. 465.

This court in the Application of McDonald (1922), 178 Wis. 167, 172, 189 N. W. 1029, held that when sentences are determined to be concurrent there was no authority for holding a prisoner after the date at which “the latest of such sentences as to the period of confinement thereunder had expired.” When sentences are to run concurrently, the maximum term imposed is determined by the longest sentence.

While we agree with the decision of the trial court, it is apparent from a perusal of the record and of his opinion that he did not construe the pardon on its face, rather he concluded that it was ambiguous and sought extrinsic evidence to interpret it. It is proper that he should do so if he considered the document to be ambiguous. We cannot agree, however, with the evidence which he, on his own motion, and over the objection of both counsel, utilized to reach his conclusion. The trial judge sought to determine the intent of the governor by seeking the advice of Mr. Thomas W. Pierce, pardon counsel for Governor Nelson at the time of the Medlock pardon. It was on the basis of this information that Judge Bard well concluded:

“In the absence of any other showing of intent we assume that Governor Nelson was following the recommendation of his Pardon Counsel when he issued the pardon 99

It is our conclusion that the intent of the pardon counsel, as evinced either by his memory of the occurrence or by a copy of the letter of recommendation he sent to the governor at the time, is not relevant. The intent to be determined is that of the governor, as declared in the document, and not that of a member of his staff. In addition, the documents relied upon by the judge are not of such a nature that they may be utilized in the proper exercise of a court’s discretion to take judicial notice of notorious or undisputed facts or of the contents of public documents, or of documents in the possession of an official custodian. 31 C. J. S., Evidence, p. 967, sec. 36.

This document, a communication from an attorney member of the staff to the governor, is not in the usual course of government business published or otherwise made available to the general public. It is not a public record. The letter, at the time of its use by the trial judge, was in the hands of one not then a public officer.

Even though it may readily be conceded that the evidence noted by the court was, in this instance, reliable and trustworthy, it is apparent that to allow what amounts to testimonial evidence not under oath, not subject to cross-examination, and without even the safeguard of the authentication by the seal of an official custodian, might well lead to the erosion of some of the most venerable and necessary rules of evidence.

The testimony of the pardon counsel was not properly before the court. If it had been, it would not only have been inadmissible, in view of the obligation of the court to construe the pardon from its face, but it would have been irrelevant as not being the intent of the official author of the pardon. We also conclude that, since the trial judge was mistaken in his conclusion that this evidence was permissible under the doctrine of judicial notice, it was improper to consider it. It is well recognized, moreover, that a judge may not supplement the record by seeking out evidence, unless such evidence may come into the case by judicial notice or by some other recognized and approved evidentiary process.

In the brief submitted by the respondent in this appeal, the attention of this court was invited to the Journal of the Senate for January 26, 1961. The legislative journals are properly the subject of judicial notice, State v. P. Lorillard Co. (1923), 181 Wis. 347, 370, 193 N. W. 613; State v. Joe Must Go Club (1955), 270 Wis. 108, 111, 70 N. W. (2d) 681; and an executive message published therein may be used by a court in determining the legislative history of a particular act of the legislature. Brad A. Liddle, Jr., Statutory Construction— Legislative Intent — Use of Extrinsic Aids in Wisconsin, 1964 Wisconsin Law Review, 660, 668, 31 C. J. S., Evidence, page 989, sec. 41.

Sec. 6, art. V of the Wisconsin constitution defines the pardoning power of the governor. In part it directs that:

“He shall annually communicate to the legislature each case of reprieve, commutation or pardon granted, stating the name of the convict, the crime of which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve, with his reasons for granting the same.”

Pursuant to this constitutional direction, the governor’s report of the Medlock commutation appears at page 108 of the Senate Journal for January 26, 1961. This is an official document of which we may properly take judicial notice. State v. Jelco (1957), 1 Wis. (2d) 630, 638b, 85 N. W. (2d) 487, 86 N. W. (2d) 428. Since we find it possible to construe the pardon on its face, it is not necessary to take judicial notice of this executive message. However, we note that the reading of this document substantiates the conclusion of the trial judge and the conclusion reached by this court.

The governor’s message states:

“. . . In view of his war record, and because the consecutive sentences totaling 20 to 65 years seemed severe, I commuted his sentences to run concurrently rather than consecutively on April 23, 1959, said commuted sentences to commence as of the date of the original sentences imposed by the Court.”

It is clear from this that the governor’s only purpose was to make the sentences concurrent. There is no intent expressed to reduce the length of any of the sentences, and the reading of the commutation itself makes it evident that no reduction of any one of the sentences was granted therein.

While we disagree with the ground upon which the trial judge reached his conclusion, it is apparent that the conclusion was correct.

“It is immaterial what ground is assigned by the trial court for its ruling if it is in fact correct.” Wintersberger v. Pioneer Iron & Metal Co. (1959), 6 Wis. (2d) 69, 73, 94 N. W. (2d) 136.

By the Court. — Judgment affirmed.


author: Currie, C. J.

text:
    Tom Welch Accounting Service, Respondent, v. Walby, Appellant.

      November 3

    November 30, 1965.

      For the appellant there was a brief and oral argument by Orville S. Luckenbach of Shawano.
    For the respondent there was a brief and oral argument by Jack J. Schumacher of Shawano.
   Currie, C. J.

The principal contention advanced by defendant on this appeal is that plaintiff, although not licensed as a public accountant or CPA, held himself out to defendant as being such, and, therefore, is precluded from recovering for the services rendered for which recovery is sought in the instant action.

Ch. 185, Stats., creates the state board of accountancy and provides for the licensing of CPAs and the registering of public accountants.

Sec. 135.11 (5) and (6), Stats., provides:

“Any person shall be deemed guilty of a misdemeanor, and upon conviction shall be punished by a fine of not more than five hundred dollars for each offense, or by imprisonment in the county jail for not more than one year, or by both such fine and imprisonment: . . .
“(5) Who holds himself out to the public as a certified public accountant or who assumes to practice as a certified public accountant unless he has received a certificate as such from the board; or
“(6) Who holds himself out to the public as a public accountant or who assumes to practice as a public accountant unless he has received a certificate of authority from the board; . . .”

Sec. 135.02, Stats., defines engaging in practice as a public accountant. The definition includes any person who holds himself out to the public as skilled in the practice of accounting or “Who maintains an office for the transaction of business as a public accountant, or who, except as an employee of a public accountant, practices accounting, as distinguished from bookkeeping, for more than one employer; . . However, the broadness of the definition is considerably restricted by sub. (9) of sec. 135.02, which will be adverted to later herein.

The designation “public accountant” refers to those persons who in 1935 were engaged in public accounting in this state and were issued a certificate of authority to practice as a “public accountant” prior to December 31, 1935. Except as to those who had received such certificates of authority, the practice of public accounting in the state after 1935 was restricted to those licensed as CPAs.

It has been held that one who violates a statute similar to sec. 135.11 (5) and (6) by holding himself out as a public accountant or CPA when he has not been licensed, is precluded from recovering for his services. The theory on which recovery is denied is that a contract will not be enforced which contravenes good morals, public policy, or the common or statute law. This court has held that a firm could not recover for architectural services where neither the firm nor one of its members had been registered as an architect as required by statute.

Defendant testified that plaintiff had represented himself to be a CPA. Two other witnesses were called by defendant who also testified to having heard plaintiff state he was a CPA. Plaintiff categorically denied having made any such representation. The creditability of the testimony on this point was for the trial court which expressly found that plaintiff had not held himself out “as a licensed or certified public accountant.” Defendant raises no issue that this finding is against the great weight and clear preponderance of the evidence.

Defendant relies on three undisputed facts to establish that plaintiff did hold himself out to defendant as a registered public accountant. First, plaintiff conducted his business under the name of “Tom Welch Accounting Service.” Secondly, plaintiff in his answer to the counterclaim admitted the allegation that he “holds himself out as a professional man rendering accounting services.” Thirdly, plaintiff lists himself in the yellow pages of the Shawano telephone directory under the heading, “Accountants.” However, this directory lists in its yellow pages, “Accountants — Certified Public” and plaintiff does not list himself under this latter category. This court takes judicial notice of the fact that other Wisconsin telephone directories also list in their yellow pages a third category of accountants, “Accountants — Public.”

As we view it, the narrow question presented is whether one who holds himself out as an accountant, and who is neither registered as a public accountant nor licensed as a CPA, violates sec. 135.11 (5) and (6), Stats. To answer this question it is necessary to interpret sec. 135.02 (9), which provides:

“Nothing contained in this chapter shall apply to any persons who may be employed by more than one person, partnership or corporation, for the purpose of keeping books, making trial balances or statements, and preparing audits or reports, provided such audits or reports are not used or issued by the employers as having been prepared by a public accountant.”

While some of the services enumerated in this subsection might properly be classified as bookkeeping rather than accounting services, the preparing of audits and reports constitutes accounting services. This subsection makes it clear that what is prohibited is not the practicing of accountancy by unregistered or unlicensed accountants, but the use of their audits or reports under the guise that they were made by a CPA or public accountant.

There is considerable authority from other jurisdictions holding that an accountant licensing statute similar to ch. 135, Stats., is unconstitutional as an unwarranted regulation of private business if it be interpreted as prohibiting noncertified accountants from practicing the profession of accountancy. Several of these cases were cited and considered by this court in Wangerin v. Wisconsin State Board of Accountancy and were distinguished on the ground of difference in wording of ch. 135 from that of the statutes before these other courts. The Wangerin Case in interpreting our statute stated:

“A bookkeeper can do anything now that he could do before the chapter was enacted, except that he cannot represent himself to be a public accountant. He can render the same service to his employers as any other accountant may render, but it cannot be put before the public as work of a public accountant or a certified public accountant. Ch. 135 deals solely with the relation of the practice of accountancy to the public, not to private individuals and firms.”

Apparently defendant interprets this language as meaning that a nonregistered accountant such as plaintiff is prohibited by the statute from holding himself out as an accountant, and can only practice his occupation under the title of bookkeeper or offering bookkeeping services. We think this is too narrow a construction of the statute in view of the express provisions of sub. (9) of sec. 135.02, Stats. The precise point decided in Wangerin is that ch. 135, in prohibiting a nonregistered accountant from holding himself out as a public accountant or CPA, constitutes a valid exercise of the police power.

When this court stated in Wangerin that the work of a nonregistered accountant “cannot be put before the public as the work of a public accountant or certified public accountant” it put its finger upon the public aspect of the practice of accountancy which the statute prohibits. The statute does not concern itself with the methods used by a nonregistered accountant to gain employment from members of the public so long as these means do not deceive the public into believing he is a public accountant or CPA. Ch. 135, Stats., has now been in effect for thirty years and we believe that the distinction between a nonregistered accountant and a public accountant is generally recognized. One has only to turn to the yellow pages of a telephone directory to see the distinction maintained.

We conclude that plaintiff did not violate sec. 135.11 (5) and (6), Stats., when he did business under the name of “Tom Welch Accounting Service” or listed himself under that name in the Shawano telephone directory under the occupational heading of “Accountants.” No claim is here made that the services he actually performed for defendant violated any of the prohibitions of ch. 135. Therefore, because plaintiff did not violate the statute there is no illegality in his contract of employment by defendant which would bar him from recovering the reasonable value of the services rendered.

Subsidiary issues raised by defendant relate to the lack of any testimony corroborating that of plaintiff with respect to hours of time spent in rendering service to defendant and the reasonable worth of such services, and to the denial of the counterclaim. There is no requirement in the law that the testimony of one seeking recovery for personal service be corroborated by other testimony or evidence.

The counterclaim alleged that defendant was required to pay a CPA $250 because of errors in plaintiff’s work. At the trial it developed that the amount paid the CPA was either $207 or $210. Defendant offered no evidence to establish that it was plaintiff’s errors which necessitated defendant to employ another accountant. The CPA who is alleged to have done the corrective work did not testify. When the trial court questioned defendant concerning the nature of plaintiff’s errors necessitating his employing another accountant, defendant replied, “I don’t remember right offhand the exact reason.” The trial court properly denied the counterclaim for lack of proof.

Plaintiff’s brief requests this court to modify the judgment by increasing the amount which plaintiff was permitted to recover to $1,429.75, the amount prayed for in the complaint. However, plaintiff failed to serve and file any timely notice for review as required by sec. 274.12, Stats. He is, therefore, precluded from now raising the issue of the inadequacy of the judgment.

By the Court. — Judgment affirmed.

        Ronaldson v. Moss & Watkins, Inc. (1930), 13 La. App. 350, 127 So. 467; Anno. Failure to procure occupational or business license or permit as affecting validity or enforceability of contract, 118 A. L. R. 646, 651.

        Respess v. Rex Spinning Co. (1926), 191 N. C. 809, 811, 812, 133 S. E. 391.

        Hickey v. Sutton (1926), 191 Wis. 313, 210 N. W. 704.

        Florida Accountants Asso. v. Dandelake (Fla. 1957), 98 So. (2d) 323, 70 A. L. R. (2d) 425; Frazer v. Shelton (1926), 320 Ill. 253, 150 N. E. 696, 43 A. L. R. 1086; Moore v. Grillis (1949), 205 Miss. 865, 39 So. (2d) 505, 10 A. L. R. (2d) 1425; State ex rel. Short v. Riedell (1924), 109 Okla. 35, 233 Pac. 684, 42 A. L. R. 765; Campbell v. McIntyre (1932), 165 Tenn. 47, 52 S. W. (2d) 162.

       (1936), 223 Wis. 179, 270 N. W. 57.

       Id. page 187.

       This statute provides: “A respondent adverse to the appellant upon the latter’s appeal may have a review of any rulings prejudicial to him by serving upon the appellant at any time before the case is set fot hearing in the supreme court a notice stating in what respect he asks for a reversal or modification of the judgment or order or portion thereof appealed from.”

        Karis v. Kroger (1965), 26 Wis. (2d) 277, 280, 132 N. W. (2d) 595.


author: Hallows, J.

text:
    State, Plaintiff, v. DeKeyser, Defendant. Luckenbach, Appellant, v. Shawano County, Respondent.

      November 3

    November 30, 1965.

      For the appellant there was a brief and oral argument by Orville S. Luckenbach of Shawano, pro se.

      For the respondent there was a brief and oral argument by Lloyd G. Andrews, district attorney of Shawano county.
   Hallows, J.

The itemized bill submitted is as follows:

“Statement of Attorney Fees based upon schedule of State Bar Minimum fees.
Appearance in Court and plea; consent to order for Central State Hospital. $ 75.00
1 day at Green Bay to place of employment; interviewing Foreman at his home; Tavern keeper and one other place, other individuals — 3 subpoenaed. 75.00
90 miles @ .08. 7.20
1 day at Seymour, visiting places defendant had been, interviewing Parish Priest and others as prospective witnesses. 75.00
75 miles @ .08. 6.00
% day at Seymour, primarily to interview two witnesses not available the day previous. Of those interviewed; two subpoenaed. 37.50
70 miles @ .08. 5.60
40 hours to briefing and preparation for trial at $20.00 per hour. 800.00
4 days of trial, at $200.00 per day. 800.00
Miscellaneous expenses as phone calls; letters and appearances for sentencing. no charge
Total . $1,881.30”

Apparently no hearing was held or testimony taken to determine the extent, necessity, or details of the services. Perhaps the trial judge thought a hearing was unnecessary as the trial was conducted before him.

In the order appealed from, however, the court stated there appeared to be a misunderstanding that the county paid State Bar minimum fees. The order further stated Shawano county attorneys were rendering adequate and efficient service to indigents whether or not they received compensation comparable to private practice and that the court had been allowing for defense of indigents $40 to $50 for a half day in court, or less, and $75 per day for preparation and $100 per day for trial work. On this basis, the court modified and allowed the statement as follows:

“Appearance in court and plea; Consent to Order for State Hospital . $ 40.00
One day interviewing witnesses. 75.00
90 miles travel. 6.30
Half day to interview two witnesses not available on the previous day . 40.00
Mileage, 70 miles. 4.90
5 days preparation. 375.00
3 full days for trial at $100 per day. 300.00
Half day appearance for sentencing and so forth . 40.00
Total approved . $881.20”

One day’s trip to interview witnesses was eliminated because the court felt that if a full day had been put in that could have and should have accomplished the purpose. The court offered to reconsider this item if Lucken-bach would show he did spend more time than what would amount to a full day. This offer was not accepted by Luckenbach. No explanation in the order is given for why forty hours for briefing and preparation for trial were translated into five days of preparation; presumably the trial court counted eight hours as one full day. Four days of trial claimed by Luckenbach were reduced to three full days of trial. This is not explained in the order but in an affidavit of the clerk of court filed after the date of the order it appears that on the second day of trial on March 17th the court adjourned in the afternoon at 2:43 because of a raging blizzard and the necessity of allowing jurors to start for their homes in the distant parts of the county. The following morning the trial did not commence until 11:30 because one of the jurors was unable to get to the courthouse prior to that time. It is claimed on oral argument that the four days of trial were the equivalent of three full days of actual trial work.

The record in this case leaves much to be desired. Claims for legal services should be submitted to the court by verified petition explaining the nature and extent of the work and in itemized form showing not only the amount of time spent but also the nature of the work and the problems involved in sufficient detail so that it can be properly appraised and a reasonable fee determined for the services. The facts so stated should be considered prima facie evidence, and modifications, allowances, and disallowances of the items made by the court and the reasons therefor should be set forth in writing and an opportunity given to counsel to contest the modifications. Reasonable men may differ over the value of legal services and there is no question of an attorney’s integrity involved when a court differs with him as to the necessity or value of services rendered. Such procedure we hope will minimize misunderstanding between counsel and the trial court and reduce the number of appeals to this court.

The trial court had the responsibility of determining the amount of research, investigation, and preparation which was necessary for the adequate defense of the indigent. It believed two and one-half days were not justified in search for and interviewing witnesses at Green Bay and Seymour. Luckenbach having been given the opportunity to support and explain these charges did not do so and, therefore, cannot complain on appeal of the modification. We do not believe it is correct to convert forty hours of preparation into five days at $75 a day. Apparently the county court has set no hourly rate. On the basis of eight hours a day and the day rate used, the hourly rate would be a little more than $9 an hour. It was not fair to counsel engaged in a murder trial extending over four days to count such time as only three full days because the actual court session ended early one afternoon and commenced late the following morning. This modification assumes a lawyer only works when court is in session. This is no more true than it can be said a trial judge only works when he is on the bench. The per diem for trial work contemplates not only the time spent while the court is sitting but also the necessary preparation and ratiocination outside the in-court time. State v. Kenney (1964), 24 Wis. (2d) 172, 128 N. W. (2d) 450.

In Conway v. Sauk County (1963), 19 Wis. (2d) 599, 120 N. W. (2d) 671, we pointed out the trial court had the duty of not only determining what services were reasonably necessary to constitute an adequate defense but also what money value was to be placed upon the services so rendered. In respect to the latter, sec. 256.49, Stats., provides the compensation of a court-appointed attorney “shall be such as is customarily charged by attorneys in this state for comparable services.” Comparable services we conclude mean not what is customarily charged a private client but such charge discounted by some factor because of the certainty of payment from the public treasury. We pointed out in Conway the minimum-fee schedule was evidence relevant to the question of a reasonable charge for such services in this state but the court was not bound to apply the rates. Again in State v. Kenney, supra, we held sec. 256.49 did not require this court to apply the full minimum bar rates to services rendered by court-appointed counsel and in that case we used as a standard approximately two thirds of the minimum bar rates as a going rate for the representation of indigents in Rock county. This court also considers that percentage of bar rates as a guideline in determining compensation to counsel appointed by this court for indigents.

We cannot approve the rates used by the trial court as being compensation which is customarily charged by attorneys or paid to them in this state for comparable services. We think the rates are too low. The value of legal services is not a personal matter with the trial judge. While we have stated a trial court as a trier of the facts need not take expert testimony as to the reasonable value of legal services because such is within his expert knowledge, we also said that on the appeal of such an issue this court likewise had expert knowledge of the reasonable value of legal services and consequently such cases were exceptions to the great-weight-and-clear-preponderance-of-the-evidence rule. Will of Gudde (1951), 260 Wis. 79, 49 N. W. (2d) 906. This exception was followed in Touchett v. E Z Paintr Corp. (1961), 14 Wis. (2d) 479, 111 N. W. (2d) 419, and more recently in Giffen v. Tigerton Lumber Co. (1965), 26 Wis. (2d) 327, 132 N. W. (2d) 572. These cases involved the issue as it related to an attorney and his private client.

The general rule was held inapplicable to cases involving a court-appointed counsel for an indigent in Conway v. Sauk County, supra, because in court-appointed-counsel cases the amount of compensation depends upon sec. 256.49, Stats., and because of that we stated in Conway the test on review of such question was whether “the record demonstrates that the allowance made by the court was clearly unreasonable.” In determining what is unreasonable this court must necessarily rely on its expert knowledge of the necessity and the value of legal services, and unless the trial court’s determination falls within the range of such determined reasonableness, it must be held to be clearly unreasonable.

We believe the amount allowed by the trial court to be clearly unreasonable. Considering the nature and extent of the services necessarily rendered and the other factors involved and using approximately two thirds of the State Bar minimum fee as a rate, we think a fair and reasonable sum for the services is $1,250, plus $11.20 for travel expenses.

By the Court. — The order is modified so as to direct payment of $1,250, plus $11.20 disbursements, to Orville S. Luckenbach and, as so modified, is affirmed.


text:
    Goodman, Appellant, v. Karns, Commissioner of Motor Vehicle Department, Respondent.

      November 3

    November 30, 1965.

      For the appellant there was a brief by Herbert L. Usow, attorney, and Robert Sanderson of counsel, both of Milwaukee, and oral argument by Mr. Usow.

    For the respondent the cause was argued by Roy G. Mita, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and Beatrice Lampert, assistant attorney general.
   Gordon, J.

The commissioner of the Motor Vehicle Department on March 25, 1965, revoked Mr. Goodman’s operator’s license for a period of one year from February 24, 1965. This revocation was based upon the commissioner’s determination that the records of his department showed that Mr. Goodman had been convicted of a 12-point driving violation on February 24, 1965. The commissioner’s order of revocation refers to the conviction as “no driver’s license,” but it also reflects that 12 points were assessed for the offense.

The offense for which the county court entered a conviction against Mr. Goodman was driving without a license, which is a four-point violation pursuant to the regulations of the Motor Vehicle Department. MVD 11.03 (14) (b). In assessing 12 points, the commissioner relied on that portion of sec. 11.03 (14) (c) of the regulations, which relates to driving after revocation and for which offense the regulation assesses 12 points.

The commissioner contends that notwithstanding the finding of the county court, Mr. Goodman was in fact driving after revocation and as such was chargeable with the sum of 12 points rather than four. It is the commissioner’s position that regardless of the court’s action the records of the Motor Vehicle Department establish that Mr. Goodman was driving after his driving privileges had been revoked and, therefore, that it was within the commissioner’s discretion to treat the latest offense as a 12-point violation.

Counsel for the commissioner acknowledged at the oral argument before this court that the commissioner did not revoke Mr. Goodman’s license under the broad discretionary power which he is given by sec. 343.32 (2), Stats., to revoke the license of one who is “an habitually reckless or negligent operator.” Instead, the commissioner has relied upon the point schedule contained in regulation MYD 11.03. While this regulation grows out of the commissioner’s discretionary power under sec. 343.32 (2), it purports to affix point values for various types of convictions. In sec. (14) (c) of this regulation, 12 points are assessed for a conviction for operating a motor vehicle while one’s operating privilege is revoked.

While the foregoing regulation authorizes the commissioner to assess points based upon a conviction, it surely does not authorize the assessment of points in contradiction of a conviction. In the instant case, the commissioner assessed points on the basis of an offense which was more serious than that for which the driver was actually convicted; this represents administrative action in direct contravention of a judicial judgment. The administrative action is therefore invalid and must be set aside.

We recently addressed ourselves to this type of problem in State ex rel. Eastman v. Burke (1965), 28 Wis. (2d) 170, 178, 136 N. W. (2d) 297:

“We feel compelled to note that we do not approve of the opinions of the attorney general in 27 Op. Atty. Gen. (1938), 329 and 31 Op. Atty. Gen. (1942), 3, to the effect that the state department of public welfare may disregard as mere surplusage a direction of the sentencing court that the defendant be given credit for time previously served for the same offense.
“In this instance the sentence imposed was not less than fourteen years and not more than twenty-five years. These limitations were the minimum and maximum as provided by sec. 340.08, Stats. 1943. Can it be said that the trial court in performing its judicial function did not take into consideration the fact that credit for time served was to be given to the defendant in fixing the maximum of twenty-five years? We think not. Even if the direction and order of the trial court as to credit for time served was erroneous, it was not void and the state department of public welfare may not disregard it. The state, and its agent, the department, should be left with the same remedies as any other litigant, namely rehearing at the trial court, or writ of error.”

In our opinion, the commissioner was not free to disregard the court’s judgment. If the judgment were deemed incorrect, there should have been a direct challenge to it either by a motion for rehearing or by appeal. The commissioner was not entitled to ignore it or to decide administratively that it was incorrect.

While we are inclined to believe that upon the facts of this case Mr. Goodman was properly convicted of “driving without a license” rather than “driving after revocation,” it is really immaterial in determining the action which must be taken by this court relative to the commissioner’s order. This is because of the fact that whether the conviction was right or wrong its effect is binding unless altered by due process of law. Mr. Goodman was bound by the court’s judgment and was entitled to rely upon its being accepted and respected by the state and its agencies.

Upon the remand the circuit court should enter an order vacating the commissioner’s revocation of Mr. Goodman’s license.

By the Court. — Order reversed, and cause remanded with directions.


author: Wilkie, J,

text:
    Wendland, Respondent, v. Wendland, Appellant.

      November 3

    November 30, 1965.

      For the appellant there were briefs by Bay T. McCann, attorney, and Leonard L. Loeb of counsel, both of Milwaukee, and oral argument by Mr. Loeb.

    For the respondent there was a brief by Howard & Burns, attorneys, and George A. Burns, Jr., of counsel, all of Milwaukee, and oral argument by George A. Burns, Jr.

   Wilkie, J,

Two issues are presented on this appeal:

First, did the trial court err in awarding custody of the children to respondent?

Second, is respondent entitled to have appellant contribute toward her attorney’s fees where he is granted an uncontested divorce on the ground of adultery?

Custody.

In its decision the trial court stated, as to custody:

“I now find that both the father, the defendant Donald H. Wendland and the mother, the plaintiff Audrey K. Wendland, are fit and proper parties to have the custody of the minor children of the parties. It is in the best interest of the children and for their welfare that the custody of said children is granted to the plaintiff wife, subject to the right of visitation on the part of the defendant husband at all reasonable times. Because of the animosity of the parties and because of the plaintiff’s past actions, the Court will place this custody and visitation under the supervision of the Department of Domestic Conciliation for a period of one year and review this order on March 4th, 1966 at 2:00 P.M.”

Formal findings and a judgment containing provisions to the same effect were entered by the court.

On this appeal the appellant husband contends that the findings that the respondent “is a fit and proper party to have the custody of the minor children” and that such custody “is in the best interests of the children and for their welfare” are against the great weight and clear preponderance of the evidence and constitute an abuse of discretion by the trial court.

As to the scope of this court’s review of the determinations by a trial court on matters of custody, in Belisle v. Belisle we said very recently:

“Custody matters are highly discretionary and the rule is well established that the trial court’s determination will not be upset in the absence of a clear abuse of discretion.”

Or as stated in Bliffert v. Bliffert:

“The trial court’s ruling as to custody will not be disturbed unless it is clearly against the weight of the evidence.”

The fundamental reason for giving such wide discretion to the trial court on custody questions has been most recently stated in Whitman v. Whitman:

“Especially important is the fact that the trial court is in a better position than this court to determine the best interests of the children, State ex rel. Hannon v. Eisler (1955), 270 Wis. 469, 71 N. W. (2d) 376; and to see and observe the parties and the way in which they conduct themselves. Brown v. Brown (1960), 9 Wis. (2d) 322, 101 N. W. (2d) 48; Pollock v. Pollock . . . [(1956), 273 Wis. 233, 243, 77 N. W. (2d) 485]; Greenlee v. Greenlee (1964), 23 Wis. (2d) 669, 127 N. W. (2d) 737.”

Each custody case must turn on its own facts and circumstances. Here, the record reveals the following: Respondent, who will be thirty-seven this December, testified that she was raped while vacationing in Cuba with her sister in 1956. In July of 1963, after the divorce proceedings were started, and while the parties were separated, respondent met a man at a Milwaukee cocktail lounge where she and a girl friend had gone when a concert they had planned to attend was rained out. She gave him her telephone number and they went out to dinner a week later. The man began making daily calls at her home and took respondent and the children boating or swimming on several occasions. Sometime after she began seeing this man, respondent was fitted for and purchased a diaphragm. In her testimony respondent explained that she had procured the diaphragm “[because I was attracted to this man, and I was afraid that, considering my terrible marriage for the last few years, that I might weaken and be indiscrete [sic] with him; and I didn’t want to compound my problem by taking the chance of getting pregnant, and so I felt that I needed protection just in case.” Respondent refused to answer whether she ever had the opportunity to use the diaphragm. Respondent admits, in her brief, that she had intercourse with this man. A private detective, employed by appellant to keep respondent under surveillance, testified that he observed the respondent and this man having intercourse in the den of her home in September, 1963. At other times during the period of July through September of 1963 she spent weekends with the same man out of town. Respondent stopped seeing him later in September when she learned that he was an ex-convict. At one time in their marriage, respondent indicated to appellant that she doubted the paternity of one of their children.

Appellant also claims that respondent’s lack of fitness was demonstrated by the fact that (1) in 1961 she stayed a week in a cabin with another man (although admittedly there were another married couple and ten children— from three families — sharing the cabin for the week); and (2) she met, by chance, with two men at a Milwaukee night club. The record does not support a finding of misconduct on her part in relation to either of these claimed indiscretions.

To complete the factual picture it should be emphasized that there was no evidence that any of the respondent’s acts of misconduct had any open adverse effect on the children. Aside from appellant’s claim that the children did not receive enough shampoos, no testimony was offered by the appellant or by anyone on his behalf showing that the children were anything but healthy, well-groomed, mannerly, and well-fed. There was no evidence that the respondent was neglecting or mistreating the children. The husband claimed that the boy had been having some difficulty with his studies at school, that the boy was not working to capacity, and that the boy’s troubles in school were due to the fact that he was bothered by the family being broken up by the respondent. The children went to church in the same faith as before the divorce proceedings. After an investigation the department of domestic conciliation recommended that the children remain with the mother. The representative of that department adhered to his position that his recommendation would be the same even if the respondent were guilty of the acts of misconduct heretofore described as established by the evidence.

Thus the trial court was faced with the difficult task of determining whether or not the respondent was a fit person to have the custody of the four small children and whether or not granting her the custody was in the best interests of the children.

This court has said that in matters of custody “the polestar remains the welfare of the child.”

The crucial question is whether in every case where a woman has been found guilty of immoral conduct, does this, without any evidence of demonstrable effect of such conduct on the children, mean that she is necessarily “unfit” to have custody of the children and that an award of the custody to her cannot be “in the best interests of the children.”

In Templeton v. Templeton the mother began living with her next husband before the requisite year had elapsed from the divorce date. The court, while stating that “[n]othing can be said in defense of the conduct of the plaintiff [wife] ” refused to find her unfit in the absence of a showing that “the mother has in any way neglected her child.” In Bliffert v. Bliffert, the fact that the father had remarried within the year (in violation of secs. 245.03 (2) and 245.04 (1), Stats.) and therefore was illegally cohabiting with his new wife did “ ‘not necessarily demonstrate depravity of heart or moral unfitness to bring up a child.’ ” In each of these cases this court upheld a finding by the trial court that the parent, who had committed the immoral act, was nevertheless “fit” and a proper person to have custody of the children.

In Hamachek v. Hamachek the trial court originally granted custody of a son to the mother. Subsequently the trial court transferred custody to the father, where the evidence showed that the divorced wife, after the divorce, had an illicit relationship with a married man, giving birth to a child by him. The trial court found that she was “not a fit mother” and, in affirming, this court implicitly rejected the mother’s specific, contention that she could not be unfit where her “transgression has not affected the welfare of the child.”

In Lewis v. Lewis it was held, without a discussion of whether the children were in any way influenced, that the mother’s infatuation with another man, both before and after divorce proceedings were instituted, was sufficient cause to support the trial court’s finding that the mother was unfit and to place the children in the father’s custody.

In each of these two cases, the trial court had entered a finding of unfitness on the part of the mother, notwithstanding that the record contained no evidence of demonstrable effect of the misconduct on the children. The crucial distinction from the case at bar is the fact that the trial court in each instance found the mother “unfit” where as here the trial court found the mother “fit.”

In Vogel v. Vogel, the wife admitted that she had sexual relations with a man harbored by her in her and her husband’s and the children’s home during a three-year period, which resulted in her becoming pregnant on two occasions. During the course of the trial, the court stated:

“ T don’t believe that I could, under these circumstances, where she had admitted her adultery or adulterous conduct, let her have custody of these children. . . . I have already indicated that the defendant will not have the custody of the children. . . .’ ”

Nevertheless, the court awarded custody to the mother. This court reversed, stating:

“As the evidence established conclusively defendant’s [the wife’s] adulterous conduct and unfitness to have the care and custody of the children, she has by her own wilful misconduct forfeited the right to have their care and custody which she, as their mother, would otherwise have to rear her offspring.”

The chief distinction between Vogel and the case at bar lies in the fact that in Vogel the mother’s misconduct was so pronounced that, during the trial, the trial court was stirred to state a position (that the wife would not have custody) that was absolutely contrary to his eventual finding (that she should have custody). Additionally, Mrs. Vogel was found to hav& harbored this man in the home for three years with children present. Also, her misconduct apparently persisted to a time much more recent in terms of the divorce than in the instant case (where no misconduct was shown after September, 1963, whereas the custody hearing was in January, 1965).

Thus, immoral conduct per se does not make a wife “unfit” to have the custody of her children. Where a woman has been a bad wife she nevertheless may be a good mother. Certainly, three square meals a day do not give a license to the mother to lead a personal life that is morally reprehensible. But, the trial court's basic concern here, as in all custody cases, is with what is in the best interests of the children, both physically and morally, and the court is directed to consider the overall well-being of the children. It should not be barred from exercising its discretion to grant custody to the mother where she may have been guilty of gross misconduct at an earlier date, but where the court is convinced that the misconduct has not persisted, that the children have suffered no adverse effects from it, and that the overall well-being of the children will be best suited by leaving the children with the mother (where the normal preference resides assuming that the mother is fit).

In the recent case of Belisle v. Belisle, a mother was deprived of the custody of her son because she continued to be emotionally unstable (shown by her continually picking fights in taverns and by her stabbing of her second husband) and because there was no showing that the placement of the child with her ex-husband’s mother was “working against his welfare.”

In a different vein (religious training), in Welker v. Welker, a mother who considered herself an agnostic was not deemed unfit to rear her child where “the record . . . shows that . . . [her] ideas as to religion fall far short of being inimical to the welfare of her child.”

We conclude that the findings by the trial court that the respondent is a “fit and proper party to have the custody of the minor children” and that such custody “is in the best interests of the children” are not contrary to the great weight and clear preponderance of the evidence and do not constitute an abuse of discretion.

We commend the trial court for the manner in which it proceeded in the consideration of this distasteful controversy. Not only did it call upon the department of domestic conciliation for a complete and impartial investigation of the question of custody, but it specified that the custody and visitation as adjudged is placed under the supervision of that department for a period of one year, with the additional provision that “this order shall and it is hereby ordered to be reviewed on March 4, 1966, . . .” Thus, the trial court is assured of an opportunity to review the whole custody question at that time. We are satisfied that this is the type of case where a review procedure should be built into the trial court’s basic award. Though she has been awarded custody, the respondent is not all the way over the “hump” in her efforts to gain custody of the four children. She must still overcome any attack that would lead to a finding that she is then unfit and that keeping the custody with her is not in the best interests of the children.

We recommend to the trial court that it give serious consideration to the appointment of a guardian ad litem for the four children to represent them in further custody proceedings before the court.

The appointment of a guardian ad litem to represent the interests of children who are the subject of a custody fight in a divorce proceeding is a step that the trial court should take only in an extraordinary situation where the trial court believes that what may be in the best interests of the children may not be brought out by the two contesting parties. Although the court, as here, may call upon the department of domestic conciliation for an independent investigation and report, a guardian ad litem for the children, as an advocate for their interests, may well be in a position to conduct a further investigation and present evidence to the court that will help it reach its custody determination. Where there have been instances of immoral misconduct on the part of one (or both) parties and where the court is concerned over the effect of such misconduct on minor children, the court, in its capacity as a family court, recognizing that “children involved in a divorce are always disadvantaged parties,” may well take additional affirmative steps to protect the welfare of the children. In an uncontested divorce the family court commissioner will make a recommendation on the question of custody. Where there is a hotly contested custody dispute, and the court is satisfied that the procedure of relying on the two parties and the investigation of a welfare agency may not produce all the important evidence that the court should consider in looking after the best interests of the children, a guardian ad litem should be appointed. Inevitably this will add to the expense of the divorce proceedings. But such expense will be rewarding if the interests of the children are better served. This extra consideration is due the children who are not to be buffeted around as mere chattels in a divorce controversy, but rather are to be treated as interested and affected parties whose welfare should be the prime concern of the court in its custody determinations.

If a guardian ad litem is appointed by the court, he should be allowed adequate opportunity to make such further investigation as he deems advisable after becoming familiar with the record herein; if he should request the taking of testimony of additional witnesses he should be granted the privilege of calling such witnesses.

There may be some question about the extent to which the trial court, in its scheduled review of the custody order, may receive pertinent evidence on events that precede the trial court’s decision of March 4, 1965, in which it found both respondent and appellant “fit.” We have suggested that “the doctrine of res judicata is not to be applied to custody matters with the same strictness as to others.” We also have said that “[i]t is logical that the interest of the child and of the public in the child’s welfare should not be concluded by the failure of the parents to bring relevant and important facts to the attention of the court.” In Miller v. Miller we further said:

“When the question concerns the custody of the children of divorced parents, the trial judge must not be foreclosed from inquiring into matters antedating the preceding judgment. The doctrine of res judicata is not a complete barrier in custody matters if circumstances exist which prompt the trial judge, in his discretion, to go behind the previous determination.”

If there are facts (bearing substantially on the question of custody) existing but not disclosed to the court at the time of its original order, the court, in its discretion, should be free to receive evidence on those facts and to consider the evidence in its review of the custody order. Naturally, at the upcoming hearing the trial court will be primarily concerned with the way in which the present custody order has worked out and with the then existing fitness of the parties to have custody and what custody order is then in the best interests of the children. But in resolving the custody question, the trial court should be free to consider evidence bearing on this question that may reach back before the time of its prior order.

Attorney’s Fees.

Appellant raises the issue of whether he was bound to contribute toward respondent’s legal expenses, but fails to discuss the question any further in his brief. Consequently this court is unable to learn his reasons for seeking a reversal of this portion of the judgment. Whether or not the husband must pay a portion of his wife’s attorney’s fees is a matter within the discretion of the trial court. It is true that respondent offered no defense to the charges of adultery and that appellant won the divorce on this ground, but the custody question, which is intertwined with the divorce proceeding, was bitterly contested. For this reason there was no abuse of discretion in allowing contribution.

By the Court. — Judgment affirmed.

       (1965), 27 Wis. (2d) 317, 321, 134 N. W. (2d) 491, citing Bohn v. Bohn (1962), 16 Wis. (2d) 258, 114 N. W. (2d) 423; Smith v. Smith (1957), 1 Wis. (2d) 174, 83 N. W. (2d) 672. Cited with approval in Whitman v. Whitman (1965), 28 Wis. (2d) 50, 56, 135 N. W. (2d) 835.

       (1961), 14 Wis. (2d) 316, 320, 111 N. W. (2d) 188, citing Hamachek v. Hamachek (1955), 270 Wis. 194, 202, 70 N. W. (2d) 595.

        Supra, footnote 1, at page 56.

        Belisle v. Belisle, supra, footnote 1; Graichen v. Graichen (1963), 20 Wis. (2d) 200, 121 N. W. (2d) 737; Dodge v. Dodge (1955), 268 Wis. 441, 67 N. W. (2d) 878.

        Welker v. Welker (1964), 24 Wis. (2d) 570, 578, 129 N. W. (2d) 134.

       (1948), 254 Wis. 92, 35 N. W. (2d) 223.

       The conduct in Templeton has been interpreted as adulterous; Bliffert v. Bliffert, supra, footnote 2.

        Templeton v. Templeton, supra, footnote 6, at page 93.

       Id. at page 94.

        Supra, footnote 2.

        Bliffert v. Bliffert, supra, footnote 2, at page 320, quoting from Jensen v. Jensen (1919), 168 Wis. 502, 505, 170 N. W. 735.

        Supra, footnote 2.

        Hamachek v. Hamachek, supra, footnote 2, at page 197.

       Id. at page 198.

       (1948), 252 Wis. 576, 32 N. W. (2d) 227.

       (1951), 259 Wis. 373, 48 N. W. (2d) 501.

         Id. at page 374.

       Id. at page 375.

       See 2 Nelson, Divorce and Annulment (2d ed., 1961 rev.), p. 224, sec. 15.06, where it is stated: “A child should not he taken from a divorced mother even though her conduct on several occasions has not been strictly in accordance with the proprieties as judged by a rigorous code. Nor is it an absolute rule that one who has committed adultery is morally unfit to have the custody of a child. The unusual and peculiar circumstances of a particular case may justify awarding minor children to a parent who has been guilty of adultery, and the guilt of a wife may be overlooked where she is not grossly immoral. The circumstances may show repentance or other facts which render a repetition of the offense improbable.”

       17A Am. Jur., Divorce and Separation, p. 16, sec. 820.

        Welker v. Welker, supra,, footnote 5, and cases cited therein; Bohn v. Bohn, supra, footnote 1, at pages 261, 262.

        Supra, footnote 1.

        Belisle v. Belisle, supra, footnote 1, at page 322.

        Supra, footnote 5.

        Welker v. Welker, supra, footnote 5, at page 577.

        Kritzik v. Kritzik (1963), 21 Wis. (2d) 442, 448, 124 N. W. (2d) 581.

       Appointment of a guardian ad litem by the trial court was recommended by this court in Edwards v. Edwards (1955), 270 Wis. 48, 70 N. W. (2d) 22, 71 N. W. (2d) 366.

       Sec. 247.15, Stats.

        Bliffert v. Bliffert, supra, footnote 2, at page 323.

        Zillmer v. Zillmer (1960), 8 Wis. (2d) 657, 663, 100 N. W. (2d) 564, 101 N. W. (2d) 703.

       (1962), 15 Wis. (2d) 583, 587, 113 N. W. (2d) 403.

         Julien v. Julien (1953), 265 Wis. 85, 60 N. W. (2d) 753; Hansen v. Hansen (1951), 259 Wis. 485, 49 N. W. (2d) 434.


author: Beilfuss, J.

text:
    Loeb and others, Appellants, v. Board of Regents of the University of Wisconsin, Respondent.

      November 3

    November 30, 1965.

      For the appellants there was a brief and oral argument by A. E. Simonson of Madison.
    For the respondent the cause was argued by Charles A. Block, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and Richard E. Barrett, assistant attorney general.
   Beilfuss, J.

The appellant-owners contend that the burden of proof should not have been placed on them and to do so violates due process of law as required by the Fourteenth amendment of the United States constitution, in that sec. 13, art. I of the Wisconsin constitution provides that property shall not be taken for public use without just compensation; that it was error for the trial court to allow the city building inspector to testify that Brenlo was an apartment building; and that it was error for the trial court to allow condemnor to examine Mr. Loeb concerning information contained in his income tax returns.

The owners’ argument on the burden of proof is that there is no statutory authority for placing the burden on the condemnees and in any event it is a violation of due process to place the burden on the condemnees when the condemnor initiated the taking.

Sec. 32.06 (10), Stats., by implication, imposes the burden of proof upon the condemnees on any appeal into circuit court:

“Appeal to Circuit Court. Within 60 days after the date of filing of the commission’s award either condemnor or owner may appeal to the circuit court by giving notice of appeal to the opposite party and to the clerk of the circuit court as provided in s. 32.05 (10). The clerk shall thereupon enter the appeal as an action pending in said court with the condemnee as plaintiff and the condemnor as defendant. It shall thereupon proceed as an action in said court subject to all the provisions of law relating to actions brought therein, but the only issues to be tried shall be questions of title, if any, as provided by ss. 32.11 and 32.12 and the amount of just compensation to be paid by condemnor, and it shall have precedence over all other actions not then on trial. It shall be tried by jury unless waived by both plaintiff and defendant. The amount of the jurisdictional offer or of the commission’s award shall not be disclosed to the jury during such trial.”

The effect of designating the condemnee as plaintiff with the right to open and close, and proceeding subject to provisions of law relating to actions brought in circuit court is to allocate the burden of proof to the property owner. The owners here were also appellants in the circuit court on the issue of fair market value and they have the burden of proof on that issue. A party seeking judicial process to advance his position carries the burden of proof. Upper Lakes Shipping v. Seafarers’ International Union (1963), 22 Wis. (2d) 7, 17, 125 N. W. (2d) 324.

The procedure provided for throughout ch. 32, Stats., and especially sec. 32.06, has been followed by the con-demnor in this case. At least the owners do not raise any nonconformance with these provisions.

Sec. 32.06 (1), Stats., requires that a determination of the necessity of the taking be made at the outset. Sec. 32.06 (2) requires the condemnor to make at least one appraisal. Then the condemnor must attempt to negotiate with the landowners for a sale. Sec. 32.06 (2a). Sec. 32.06 (3) requires the condemnor to make a jurisdictional offer which the landowners may refuse. If the landowners do not accept the jurisdictional offer, the condemnor may petition the county condemnation commission for a hearing to determine fair market value. Sec. 32.06 (3) and (7). Either party may appeal the determination of the condemnation commission to circuit court. Sec. 32.06 (3) and (10). Either party may appeal from the judgment of the circuit court to the supreme court.

The condemnor must determine the necessity for the taking, make an appraisal of the property, attempt to negotiate a sale, and make a jurisdictional offer before the condemnees must act at all. Then the condemnees may reject the offer, force the condemnor to a hearing before the condemnation commission, appeal to circuit court, and appeal to the supreme court before condemnation procedures are completed. This elaborate procedure is inherently fair, and when that is coupled with the well-recognized presumption that condemnation awards are made in good faith by public officials entrusted with that duty, we cannot say that the due-process clause of the Fourteenth amendment, United States constitution, or sec. 13, art. I, Wisconsin constitution, has been violated. In State ex rel. Thomson v. Giessel, supra, we held that due process is satisfied if the condemnees have the right to have their damages determined by the courts.

We do not decide here whether it is constitutionally permissible under the statute to impose the burden of proof upon the owner in those instances where the con-demnor appeals from the award of the condemnation commission, for the reason that this question is not at issue and our opinion on that question in this action would be obiter dictum.

The owners contend that it was error for the court to allow the building inspector to testify that Brenlo was an apartment building and thus a nonconforming use, because such testimony is an incompetent conclusion. They also contend that Martin should not have been allowed to testify at all because his inspection was made several months after the date of the taking. Since Martin’s testimony was related to the date of taking, it was not error to allow him to testify. The owners’ own appraiser testified that it is not uncommon for a prospective buyer to have the building inspector inspect the premises for violations of the building code.

If the opinion of the building inspector was in the form of a conclusion of law it would be error to allow it to stand for the reason that the ordinance provides for administrative and court review as to disputed findings and conclusions of a building inspector, including an opinion that a given building is an apartment building.

Under the state of the record as we find it, it was not error to permit the building inspector to testify as to his opinion that the building in question was an apartment building, and as an apartment building it did not comply with the building code and as such was a nonconforming use. His testimony was evidence to be considered by the jury and weighed by it together with the other credible evidence on the question, and then rejected or accepted and given such weight as the jury determined it was entitled to receive.

The trial court properly and adequately instructed the jury as to the noneonclusiveness of the opinion testimony and as to its permissible probative value:

“Now, members of the jury, there has been testimony in this case with respect to whether or not the building in question was in violation of the building ordinances of the City of Madison and with respect to whether or not the use to which it was being put on March 15, 1963 was a ‘legal non-conforming use.’ This testimony may be considered by you if you find that it has a bearing upon the fair market value of the property in question on March 15,1963.
“The court has not passed and will not here pass upon the debatable question of whether or not the plaintiffs were in violation of the City of Madison building code or whether or not their property was in compliance with the City of Madison building code as a legal non-conforming use. And you are not called upon to decide that particular question. The matter is arguable and if you find that such debatable matter would affect the informed buyer or the informed seller in the market you may consider it, giving it such weight and credit as you find it fairly entitled to receive and as going to the ultimate question of the fair market value on the date of the taking March 15,1963.”

The owners’ final contention is that the trial court committed error in allowing condemnor to examine Harry Loeb regarding information contained in his Wisconsin income-tax returns, and that the attorney general was unauthorized to inspect and obtain copies of these returns.

Sec. 71.11 (44) (c) 2, Stats., allows income-tax returns to be viewed by “[p]ublic officers of this state or its political subdivisions or the authorized agents of such officers when deemed by them necessary in the performance of the duties of their office.” Clearly, the attorney general is a public officer of the state. It is his duty to litigate condemnation cases for the state. The income from the property in question was, in this instance, a significant factor in determining the fair market value. All the expert appraisers used an income approach as one of the measures of fair market value.

The owners contend that actual income figures are irrelevant because there was testimony that the property was not being used for its highest and best use. Sec. 32.09 (2), Stats., requires compensation to be based upon the highest and best use of the land. However, Mr. Loeb testified that he gave the appraisers an income figure for use in their appraisal. The appraisers considered this figure in their income approach, and it was reflected in the fair market value arrived at by them. Thus, it was relevant and material for the condemnor to examine Mr. Loeb concerning his income. It then became necessary for the condemnor to obtain copies of Loeb’s income-tax returns. These were not introduced in evidence, but were resorted to twice when Loeb’s independent recollection of the figures failed. The returns were used to refresh his recollection, and they were proper for impeachment purposes.

The owners further object to the use of the income-tax returns for the reason that the returns reflected income from two additional properties, and, although the total net income as reported was accurate, the allocation of expense to the various properties was arbitrarily assigned and not accurate, and therefore misleading. This explanation could be properly reached in redirect examination.

Because the attorney general was authorized by statute to examine and obtain copies of Loeb’s pertinent income-tax returns, and because the owners opened the door to the inquiry into Mr. Loeb’s income from the Brenlo property, the trial court properly allowed the line of questioning and the use of the income-tax returns to refresh Loeb’s recollection.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.

        State ex rel. Thomson v. Giessel (1953), 265 Wis. 185, 202, 60 N. W. (2d) 873.

       “Private property for public use. Section 13. The property of no person shall be taken for public use without just compensation therefor.”