text:
    In re Cudahy Family Trust: Brady and another, Appellants, v. First Wisconsin Trust Company, Trustee, Respondent.

      November 24, 1964 —
    January 5, 1965.

      For the appellants there were briefs by Quarles, Herriott & Clemons, attorneys, and Lester S. Clemons and Peter J. Lettenberger of counsel, all of Milwaukee, and oral argument by Mr. Lettenberger.

    For the respondent there was a brief by Brady, Tyrrell & Bruce, attorneys, and Richard H. Tyrrell and Samuel J. Recht of counsel, all of Milwaukee, and oral argument by Mr. Recht.

   Hallows, J.

The issue is whether the appellants are entitled to have their reasonable attorneys’ fees paid out of the trust estate when the trustee stands neutral in a controversy to determine who are the proper beneficiaries to receive trust income.

The appellants contend the respondent as trustee had a duty to defend the rights of the beneficiaries of the trust against the adverse claim of Helen Bischoff and the trustee having failed to do so the appellants are entitled to their attorneys’ fees from the trust estate for performing such services. We do not view the facts as giving rise to a contest between the trust on the one hand and an adverse claimant on the -other. In such a case it is quite true as claimed by the appellants, the trustee has a duty of loyalty to the beneficiaries arising out of the fiduciary relationship and the responsibility of administering the trust according to its terms and of protecting the trust estate. Will of Hughes (1942), 241 Wis. 257, 5 N. W. (2d) 791; Will of Cosgrove (1941), 236 Wis. 554, 295 N. W. 784; Estate of Allen (1935), 218 Wis. 349, 259 N. W. 848.

If, because of the failure of the trustee to perform its duties, it becomes necessary for a beneficiary of the trust to perform such duties, he is entitled to be compensated the same as a trustee would have, had it performed its duty. The same rule applies to executors and beneficiaries of an estate. Estate of Marotz (1953), 263 Wis. 99, 56 N. W. (2d) 856; Estate of Sheldon (1946), 249 Wis. 430, 24 N. W. (2d) 875; Will of Rice (1912), 150 Wis. 401, 136 N. W. 956, 137 N. W. 778. On this principle of extraordinary circumstances when Helen Bischoff discharged the duty of the First Wisconsin Trust Company as executor to protect the estate’s plan of distribution in the Hoyt estate, a duty the executor could not perform, she was allowed attorneys’ fees out of the estate.

The similarity of the facts here to Hoyt is only superficial. The appellants were not performing any duty of the trustee. The determination of who were the beneficiaries of the Cudahy Trust could not be made solely from the agreements of 1918. Because of the power of appointment reserved in those documents, it is required to consider the will of Mrs. Hoyt and her partial release. These instruments are part and parcel of the documents relating to the trust and its administration and are as necessary and pertinent in determining the appellants’ rights as they are the rights of Helen Bischoff. Because of this, both the appellants and Helen Bischoff base their claim on documents constituting the trust instruments. Neither the appellants’ nor Helen Bischoff’s claims are adverse to the trust as such but are adverse only to each other as potential beneficiaries of the trust. Since this is a dispute between parties claiming to be beneficiaries of the same income, Helen Bischoff if she had won would not be entitled to attorneys’ fees from the trust any more than the appellants are now.

In a dispute between two beneficiaries concerning a construction of the terms of a trust, a trustee is under no duty to take sides. It performs its duty as trustee in seeking a construction of the documents relating to the trust so that it may carry out its terms. If such matter is not fully presented to the court by the interested parties, it may be proper or even the right of the trustee to present its view to the court. Will of Asby (1939), 232 Wis. 481, 490, 287 N. W. 734. However, no such situation developed here, nor is this a case where a claim of the beneficiary is so obviously without merit that it is in effect an adverse claim. On the contrary we stated in Hoyt the issue created by Mrs. Hoyt’s will was worthy of adjudication.

Here, the conflict is in fact between two persons claiming to be beneficiaries, i.e., between Helen Bischoff as a specific beneficiary and the appellants as residuary beneficiaries. Thus the duty of the trustee as custodian of the trust res for the benefit of all the beneficiaries was to treat those claimants impartially and not to assume the advocacy on behalf of either or assume the validity of the contention of either. In such a contest each party must assume the cost of his own legal services. Will of Hughes, supra; Will of Larson (1933), 211 Wis. 237, 247 N. W. 880; Estate of Donges (1899), 103 Wis. 497, 79 N. W. 786; Estate of Cole (1899), 102 Wis. 1, 78 N. W. 402; Restatement, 1 Trusts (2d), p. 393, sec. 183. We find no error in the ruling of the trial court and the order denying reasonable attorneys’ fees to the appellants must be' affirmed.

By the Court. — Order affirmed.


source: Caselaw Access Project

author: Gokdon, J.

license: Public Domain

text:
    H. & R. Truck Leasing Corporation, Respondent, v. Allen and wife, Appellants.

      November 25, 1964 —
    January 5, 1965.

      For the appellants there was a brief by Harvey, Weber, Gerard & Jones of Racine, and oral argument by Richard G. Harvey, Jr.

    For the respondent there was a brief by McEvoy & Mun-ger of Kenosha, and oral argument by Earle Munger.

   Gokdon, J.

“There is no surer way to find out what parties meant, than to see what they have done. Self-interest stimulates the mind to activity, and sharpens its perspicacity.” Insurance Co. v. Dutcher (1877); 95 U. S. 269, 273, 24 L. Ed. 410.

Even though the written option is somewhat ambiguous, the conduct of the parties (or their counsel) in this case vigorously establishes that the parties intended to sell by the acre. During the entire negotiations there was never any discussion of a gross sales price. The parties may have individually calculated what the total expenditure or receipt would be, but they did not communicate with one another as to an overall price.

Mila Allen testified that it was her intention to sell “for about $7,500.” Plowever, when asked whether she conveyed that intention to the buyer, she replied,- “Well, I imagine Mr. Holderness knew.” Myron Allen was also asked whether any total price was mentioned. He responded, “Well, there could have been, but I don’t remember.” The buyer’s representative, on the other hand, categorically and un-qualifiedly denied that there was any discussion of a gross sales price. The trial court was surely entitled to accept the latter testimony.

While it would appear that there had been no discussion as to a lump sum for the entire tract, the record is very clear that there were direct negotiations as to the price per acre. Originally, the Allens had demanded $2,000 per acre. Subsequently, Myron Allen indicated that he would be interested in selling at $1,500 an acre. Ultimately, the parties reached an agreement to sell at $1,250 an acre.

After the option was signed, the vendors’ conduct continued to demonstrate their acquiescence to the concept of a sale based on acreage. For example, the sellers’ attorney addressed a letter to the buyer on June 13, 1962, requesting a copy of a survey. This letter stated:

“Inasmuch as area means quite a bit in the price, as the land is sold per acre, I think you will see that it is material that we must see a copy of Mr. Hungerford’s survey to determine how he came out with such a low area.” (Emphasis added.)

This letter was actually typed by one of the sellers, Mila Allen, although it was signed by her attorney. It constitutes a remarkably explicit insight into the sellers’ intention to receive a sales price determined by the number of acres.

Another letter from the sellers’ attorney was sent to the buyer on July 17, 1962. This letter, also typed by Mila Allen, indicated the sellers’ calculation of the acreage at 6.1134, for a total selling price of $7,641.75. In their counterclaim, the sellers computed the acreage at 5.86, for a sales price of $7,325. Thus, as late as July 17, 1962, the sellers were insisting upon a total sales price in excess of the lump sum which they now contend was agreed upon.

The higher price which the sellers demanded on July 17, 1962, resulted from their erroneous assumption that the property involved contained 6.1134 acres; however, this event tends to confirm that the sellers actually expected to receive a price based on the number of acres. The trial court determined that the correct number of acres involved is 4.08, and this figure has not been questioned upon this appeal.

A closing statement, prepared upon the stationery of the sellers’ attorney, was received into evidence. It, too, reflected the sellers’ contention that the total purchase price was $7,641.75, apparently also based upon the sellers’ erroneous computation as to the number of acres involved in the sale.

In determining the parties’ intent, it is appropriate to consider factors happening before and after the signing of an agreement. In Stadele v. Resnick (1957), 274 Wis. 346, 352, 80 N. W. (2d) 272, the court stated:

“Negotiations preceding, as well as conduct and negotiations subsequent to the signing, are relevant, and if, upon the whole case, it appears that the mistake was mutual at the time the deed was executed, such evidence then is controlling and sustains findings and conclusions based thereon requiring reformation.”

However, even if we were to ignore the items of conduct referred to above and were to consider only the written option, we would find modest support for the trial court’s conclusion.

Mr. Justice Frankfurter once said, “In law also the emphasis makes the song.” Bethlehem Co. v. State Board (1947), 330 U. S. 767, 780, 67 Sup. Ct. 1026, 91 L. Ed. 1234. The emphasis which was employed in the instant writing is difficult to treat lightly.

As originally prepared, the typed option referred to 5.94 acres. When a question arose as to the correctness of this figure, a tax receipt was produced which showed that the parcel contained 5.86 acres, and a correction was written in ink over the typed figures. The option further expressly provided for a certain price “PER ACRE.” The last two words were both capitalized and underlined. These are the only words on the entire instrument which were put in capital letters and likewise the only words which were underscored. We find it reasonable to conclude that this degree of emphasis should be accorded weight in attempting to determine the parties’ intentions.

In Docter v. Furch (1890), 76 Wis. 153, 169, 44 N. W. 648, 44 N. W. 826, the court set forth four classifications for determining whether, in cases like this, a sale is in gross or per acre. In our opinion, the facts surrounding the instant case fully establish that a sale by the acre was intended by both parties, as the trial court held.

While both parties may have anticipated that there was a given amount of land in the parcel, they committed themselves to a price based upon acreage; they both took the risk that there was more or less acreage in the tract than was contemplated. It is particularly significant that the sellers were quick to impose this risk upon the buyer when the Allens thought that the area was greater than the 5.86 acres recited in the option. It follows that they must also have risked the possibility of there being less acreage.

In effect, the option in this case was reformed by the trial court to reflect a different amount of land: 4.08 acres instead of 5.86 acres. However, this does not in any way alter the trial court’s interpretation that the parties’ primary intention was to sell by the acre.

Under the terms of the written option and also upon the conduct of the parties, we believe that the trial court correctly determined that this was a sale by the acre rather than by the tract. Its finding is clearly not against the great weight and clear preponderance of the evidence.

By the Court. — Judgment affirmed.


author: Wilkie, J.

text:
    American Motors Corporation, Appellant, v. Industrial Commission and another, Respondents.

      November 25, 1964 —
    January 5, 1965.

      Eor the appellant there was a brief by Quarles, Herriott & Clemons, and oral argument by Laurence C. Hammond, Jr., all of Milwaukee.
    For the respondent Industrial Commission the cause was argued by Beatrice Lampert, assistant attorney general, with whom on the brief was George Thompson, attorney general.
    For the respondent Haessly there was a brief by Goldberg, Previant & Uelmen of Milwaukee, and oral argument by Albert J. Goldberg.

   Wilkie, J.

The only issue presented on this appeal is whether an interlocutory order of the Industrial Commission (February 21, 1961), which reserved jurisdiction only as to permanent disability and medical treatment, precludes the making of an additional award for temporary disability.

The essence of appellant’s position is that the first order (February 21, 1961) entered after the first hearing, which provided for a specified period of temporary disability but reserved only the question of permanent disability, was final on the question of temporary disability (even though no review was sought of that order or of the second order, dated November IS, 1961, which allowed some further temporary disability but again did not expressly reserve jurisdiction on that issue) and left the commission without jurisdiction (following a third hearing) to provide for further temporary disability and to reserve jurisdiction “on all issues” (including further temporary disability).

The commission’s first order was labeled “Interlocutory.” The commission has the power to make interlocutory awards. Appellant’s contention that this first order was in effect final in regard to temporary disability cannot be sustained. Although it was expressly agreed at the first hearing to consider only the liability question, evidence sufficient to sustain the award of temporary disability was nonetheless introduced. At any rate, since no appeal was taken from the first order, appellant is precluded from challenging subsequent orders on the grounds that the initial order was final in regard to temporary disability. As the court said in Thomas v. Industrial Comm. :

“The California Packing Co. Case demonstrates that an employer has an adequate remedy to review an unauthorized entry by the commission of an interlocutory instead of a final order by instituting a timely action for court review. We deem that this should be the employer’s only remedy to challenge such an interlocutory order, and that the employer waives his right to later attack such an order if he has failed to take advantage of such remedy.”

In the California Packing Co. Case the court held that the commission could not reserve a claim for further order as to temporary disability where there was no evidence in the record to show that the applicant may suffer further temporary disability or require further medical treatment. In the instant case there was evidence in the record at each of the three hearings that the applicant’s temporary disability continued and that she would require further medical attention.

Appellant next contends that retaining jurisdiction over a single issue does not reserve the power to reconsider all issues. In Lange Canning Co. v. Industrial Comm. it was determined at the first hearing that the claimant was an employee and a nominal temporary award was made from which no appeal was taken. The claimant was later awarded a substantial amount, and the employer appealed on the ground that no employer-employee relationship existed. In concluding that the question of liability remained open even though previously resolved in the initial hearing, the court said:

“The voluntary payment of the first or temporary award did not bar it from bringing an action to review the second award, with the same right to challenge every ground upon which the award was based that it would have had in the event that no temporary award had been made.
“It is true that the award here under review is based on the same findings of fact, so far as the relation of the parties is concerned, that constituted the basis of the temporary award. But it has never been held, so far as we are advised, that findings of fact constitute res ad judicata. Neither are we prepared to say that the doctrine of res adjudicata is applicable to administrative findings or orders. But we have considered the question upon the theory upon which it was argued and have arrived at the conclusion that the statute expressly authorizes an action to review either the interlocutory or final award, and that the voluntary payment of one does not affect the right to review the other, even though both be based on the same findings of fact. It follows that the award here under review was erroneous, and should be vacated and set aside.”

If an issue could be reconsidered in Lange, a fortiori the question of temporary disability can be reviewed in the present case since Lange involved a specific finding while here there was no finding per se that the healing period had ended.

Respondents contend that the reservation of the permanent-disability question implies that the healing period has not ended and respondents therefore conclude that this is tantamount to an express reservation of jurisdiction with respect to temporary disability. A similar contention was rejected in Larsen Co. v. Industrial Comm.

In Larsen the court concluded that the commission, after entering an order holding that the healing period had ended on February 25, 1955, with a finding of permanent disability, had gone beyond the evidence in entering a later order allowing total temporary disability during the period from March 7, 1955, to December 10, 1956, the date at which corrective surgery was had leading to further total temporary disability from December 10, 1956, until September 19, 1957, where the record failed to establish that the healing period covered the entire time from February 25, 1955, to September 19, 1957.

The court held that an employee is entitled to temporary-disability benefits only “while he is convalescing and undergoing treatment,” and is not disqualified for continuing on the job if “his injury is of a nature that does not totally disable him.”

It is possible that in a particular case the healing period will terminate simultaneously with the determination of the permanent disability. But a mere reservation of jurisdiction as to permanent disability is not assurance that this automatically follows.

There was nothing misleading to the employer here by the commission’s determination that jurisdiction had been reserved on all issues. On two occasions the examiner had ordered payment for periods of temporary disability without an appeal by appellant. That the examiner who issued the February 21, 1961, order did not regard the matter as closed is shown by the fact that he made an additional award following the second hearing. The Industrial Commission itself was convinced that jurisdiction had been retained. The commission’s interpretation of orders issued by examiners is relevant. There was no finding in regard to cessation of temporary payments or to the healing period. Since sec. 102.18 (1), Stats., commands that the rights of the party shall be spelled out, it is reasonable to require an express severing of a claimant’s right to temporary disability.

At the first hearing both counsel clearly intended to reserve the question of all disability. For some unexplained reason, however, the examiner awarded temporary-disability benefits while reserving jurisdiction over just permanent disability. The second order continued temporary payments and contained the same reservation of jurisdiction. Sufficient evidence was introduced at each hearing to sustain both awards and appellant sought review from neither order. At the third hearing appellant finally objected to further temporary awards. As aptly put by the trial judge:

“Concededly, it would have been better practice for Examiner Michalski in his findings and order of November 15, 1961, to have reserved jurisdiction on all issues. This would have been more precise and accurate draftsmanship. On the other hand, certainly neither the commission nor the court should deprive workers of the rights given to them by law because of the inapt or incomplete phraseology used by a busy and harassed examiner in his written findings of fact and order.”

Justice requires that we affirm the trial court’s affirmation of the Industrial Commission’s order directing payment for a further period of temporary disability and reserving jurisdiction on all issues.

By the Court. — Judgment affirmed.

       “102.18 Findings and award. (1) . . . Pending the final determination of any controversy before it, the commission may after any hearing make interlocutory findings, orders and awards which may be enforced in the same manner as final awards.”

       Sec. 102.23 (1), Stats., requires an appeal, “within 30 days from the date of an order or award . . .”

       (1958), 4 Wis. (2d) 477, 483, 90 N. W. (2d) 393.

        California Packing Co. v. Industrial Comm. (1955), 270 Wis. 72, 70 N. W. (2d) 200.

       (1924), 183 Wis. 583, 197 N. W. 722.

        Lange Canning Co. v. Industrial Comm., supra, at page 588. In Hinrichs v. Industrial Comm. (1937), 225 Wis. 195, 273 N. W. 545, the court held that the basis of computation for a temporary award was not res judicata as to the basis used for the permanent award. Later cases affirmed the principle that res judicata does not apply to interlocutory orders of the industrial commission. Harnischfeger Corp. v. Industrial Comm. (1948), 253 Wis. 613, 34 N. W. (2d) 678; Maryland Casualty Co. v. Industrial Comm. (1939), 230 Wis. 363, 284 N. W. 36.

         (1960), 9 Wis. (2d) 386, 101 N. W. (2d) 129.

        Larsen Co. v. Industrial Comm., supra, at page 393.

       The commission’s order of December 11, 1962, recited that: “The findings of fact dated November 15, 1961, do not include any finding that temporary disability had ceased, or that applicant’s condition had become stationary; that the interlocutory order on said date did not restrict the reservation of jurisdiction, and jurisdiction is therefore reserved upon all issues; . . .”

         Levy v. Industrial Comm. (1940), 234 Wis. 670, 291 N. W. 807.

       102.18 “(1) After final hearing the commission shall make and file its findings upon all the facts involved in the controversy, and its order?.which shall state its determination as to the rights of the parties. . . .” (Emphasis added.)


author: Beilfuss, J. Wilkie, J. Hallows, J.

text:
    Cahill, Appellant, v. Cahill, Respondent.

      November 25, 1964 —
    January 5, 1965.

      For the appellant there was a brief by Nelson & Ehr of Milwaukee, and oral argument by Irving H. Nelson.
    For the respondent there was a brief by Patrick T. Sheedy, attorney, and David F. Kopplin of counsel, both of Milwaukee, and oral argument by Mr. Sheedy.

   Beilfuss, J.

Was the trial court’s finding that Mrs. Cahill did not wilfully desert her husband against the great weight and clear preponderance of the evidence ?

The right to divorce must be predicated upon a violation of the marital relationship as recognized by the divorce statute. One of the grounds enumerated in the statute is wilful desertion.

Sec. 247.07 (3), Stats., provides a divorce may be granted, “For the wilful desertion of one party by the other for the term of one year next preceding the commencement of the action.”

In Schopps v. Schopps (1925), 188 Wis. 151, 205 N. W. 829, and Leach v. Leach (1954), 266 Wis. 223, 63 N. W. (2d) 73, we recognized four essentials which must be established for a divorce upon ground of wilful desertion. They are (1) a leaving by the other spouse without just cause, (2) such leaving was without intention to return, (3) the separation must be continuous for one year preceding the commencement of the action, and (4) the original leaving, together with the living apart for the statutory period, must be without the consent of the complaining spouse. To these four essentials another should be added, namely, that the leaving and the continued separation for the statutory period was the wilful act of the offending spouse.

If the complaining spouse establishes these five essentials he is entitled to a divorce.

It is without dispute that Mrs. Cahill left the family home in Milwaukee county without just cause; that she did not intend to return; that separation was continuous for'more than a year before the commencement of the action; and that she left and remained separated without the consent of Mr. Cahill.

The trial court found that Mrs. Cahill was not insane but was mentally ill at all times concerned and that the desertion was, therefore, not wilful and denied the divorce.

In addition to the facts set forth above, the only evidence of the mental health of Mrs. Cahill consisted of the testimony of Dr. Hurley and letters from Mrs. Cahill’s father, a physician, and physicians who examined and treated Mrs. Cahill at the time of and subsequent to her admission to the hospital in New York on August 19, 1960. These letters have very little probative value because they relate to the situation as it existed after the cause of action occurred in addition to being hearsay. The contents of the letters were also considered by Dr. Hurley in arriving at his conclusions set forth below.

On August 2, 1960, at the request of the family court commissioner, Dr. James Hurley made a complete psychiatric examination of Mrs. Cahill.

Dr. Hurley was called at the trial by the plaintiff husband and testified at length on examination by counsel for both sides and the court. Dr. Hurley resides in Milwaukee; he does and has for several years conducted an extensive practice in psychiatry. As appears from the opinion of the trial court, Dr. Hurley is an exceptionally well-qualified expert in the field of psychiatry.

The testimony of Dr. Hurley stands uncontradicted and unimpeached. He was of the opinion that Mrs. Cahill was not on August 2, 1960, nor prior thereto, legally insane. He testified in substance that Mrs. Cahill was emotionally disturbed; that she had a paranoid personality, but had not reached the stage of paranoid schizophrenia and therefore not insane; that she knew the difference between right and wrong and the nature and quality of her acts, and that she did choose her acts even though she had delusions that motivated them.

The trial court’s finding that Mrs. Cahill was not insane but mentally ill cannot stand.

Sec. 51.001, Stats., provides:

“Definitions. As used in this chapter:
“(1) Mental illness is synonymous with insanity; . . .” In State v. Esser (1962), 16 Wis. (2d) 567, 599, 115 N. W. (2d) 505, we stated the test of insanity to be:
“ ‘The term “insanity” in the law means such an abnormal condition of the mind, from any cause, as to render the defendant incapable of understanding the nature and quality of the alleged wrongful act, or incapable of distinguishing between right and wrong with respect to such act.’ ”

The undisputed testimony of Dr. Hurley was that Mrs. Cahill at the times material, did know the nature and quality of her act in leaving her husband and was able to distinguish between right and wrong with respect to her leaving and intention not to return.

We are not prepared to state that the trier of the fact is absolutely bound by the uncontradicted testimony of an expert. However, we do conclude upon the record of this case that the expert, Dr. Hurley, was competent and well qualified, his testimony was not impeached nor his credibility challenged, and his examination and history of Mrs. Cahill complete so as to afford him ample foundation for his opinion. It is further significant that his examination was conducted and his opinion reached as a result of the request of the family court commissioner. Under these circumstances the trial court was not at liberty to disregard the unimpeached, unequivocal and uncontradicted testimony of Dr. Hurley. This being so, the finding of the trial court that the desertion was not wilful is against the great weight and clear preponderance of the evidence.

In Caldwell v. Caldwell (1958), 5 Wis. (2d) 146, 154, 92 N. W. (2d) 356, a divorce action for cruel and inhuman treatment defended upon the ground of uncontrollable irritability due to ill-health, we stated:

“Some courts have stated broadly that insanity is a good defense, but the majority view appears to be that if the nature of the mental illness is such that the victim is conscious of what he does and knows that what he does is not right, although in doing the act he acts under the compulsion of a diseased mind which prevents him from abstaining therefrom, his infirmity is no defense.”

To the same affect is 1 Nelson, Divorce and Annulment (2d ed.), pp. 355, 356, sec. 9.06:

“The fact that conduct complained of was due to hallucinations of the spouse charged with it does not prevent such conduct from constituting ground for divorce, if the hallucinations did not amount to insanity. The same is true as to acts of a paranoiac prior to the time such condition became so advanced as to amount to insanity, or the acts of one suffering from psychoneurosis later developing into insanity.”

The term “wilful” has been defined in Milwaukee Corrugating Co. v. Industrial Comm. (1928), 197 Wis. 414, 420, 222 N. W. 251, thusly:

“ ‘The words “wilful” and “wilfully” are of somewhat varied signification according to the context in which they are used in particular cases and the nature of the subject under discussion or treatment. They are frequently used in the sense of intentionally, or in other words as implying a purpose or design, or proceeding from a conscious motion of the will as distinguished from accidentally or involuntarily; and they are accordingly used in the sense of or as equivalent to willingly; designedly; purposely; obstinately; stubbornly; inflexibly; perversely; voluntarily; deliberately; with set purpose; being governed by the will, without regard to reason, or without yielding to reason. . . ”

We conclude the great weight and clear preponderance of the evidence compel the inferences that Mrs. Cahill was not insane at the time she left her husband and during the statutory period prior to commencement of the action, and that she knowingly and willingly left her husband and their home in Milwaukee with a firm intention not to return.

The finding of the trial court that Mrs. Cahill was mentally ill and did not wilfully desert her husband cannot be sustained.

Mr. Cahill has established his right to a divorce under the statute upon the grounds of wilful desertion. A divorce must be granted to him. Upon remand and granting of a divorce the trial court shall determine Mrs. Cahill’s right to a division of property or alimony, or both, as the case may be, and a redetermination of the rights of custody and visitation of the minor children, if advisable, in the sound discretion of the trial court.

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

Wilkie, J.

{concurring). I concur in the result reached by the majority. Since, in my view, on this record Mrs. Cahill was not legally insane under the definition of insanity as stated in State v. Esser by either the majority or by the dissenters, I would conclude that: (1) Mrs. Cahill was not legally insane, and (2) in reaching this conclusion we are not reaffirming the definition of insanity as stated by the majority in State v. Esser.

I am authorized to state that Mr. Chief Justice Cueexe joins in this opinion.

Hallows, J.

(dissenting). I respectfully dissent because of my dissatisfaction of this court’s definition of “legal insanity.” My views are set forth in the dissent in State v. Esser (1962), 16 Wis. (2d) 567, 115 N. W. (2d) 505, and in my concurring opinion in Kwosek v. State (1960), 8 Wis. (2d) 640, 100 N. W. (2d) 339. This court should again take a long, hard look at its definition of legal insanity and the field of mental illness.

       Wilful desertion can be found even though the original leaving was with consent of the other spouse if the complaining spouse offers in good faith to terminate the separation and the other refuses. Schopps v. Schopps, supra. Also refusal to move to the place of residence selected by the husband can constitute wilful desertion. Gray v. Gray (1939), 232 Wis. 400, 278 N. W. 708.

         Plainse v. Engle (1952, 1953), 262 Wis. 506, 56 N. W. (2d) 89, 57 N. W. (2d) 586.

       (1962), 16 Wis. (2d) 567, 115 N. W. (2d) 505.


author: Heffernan, J.

text:
    Merten, Appellant, v. National Manufacturers Bank of Neenah, Administrator de bonis non, Respondent.

      November 25, 1964 —
    January 5, 1965.

      For the appellant there was a brief and oral argument by Henry P. Hughes of Oshkosh.
    For the respondent there was a brief by Patri, Nolan, Crane & Engler of Oshkosh, and oral argument by Hibbard H. Engler.

       Motion for rehearing denied, with costs, on March 2, 1965.

   Heffernan, J.

We conclude that the judgment of divorce is reviewable by this court though one of the parties is dead, and that sufficient, though minimal, evidence was produced to sustain the judgment. The respondent contends that sec. 247.37 (2), Stats., denies the supreme court the power to set aside a divorce for lack of evidence when one of the parties has died.

Sec. 247.37 (2), Stats., provides in part:

“So far as said judgment affects the marital status of the parties the court has the power to vacate or modify the same for sufficient cause shown, upon its own motion, or upon the application of either party to the action, at any time within one year from the granting of such judgment, provided both parties are then living(Emphasis supplied.)

Hirchert v. Hirchert (1943), 243 Wis. 519, 11 N. W. (2d) 157, however, distinguishes this provision above quoted, and which is applicable to the trial court, from the provision that appears in sec. 247.37 (1) (a), Stats.:

“When a judgment of divorce is granted it shall not be effective so far as it affects the marital status of the parties until the expiration of one year from the date of the granting of such judgment, except that it shall immediately bar the parties from cohabitation together and except that it may be reviewed on appeal during said period. But in case either party dies within said period, such judgment, unless vacated or reversed, shall be deemed to have entirely severed the marriage relation immediately before such death.”

As this court in Hirchert said at page 527:

“Notwithstanding the failure of the defendant to get the judgment of the court vacated she is not barred from appealing and seeking reversal of it upon review of the record. Sec. 247.37 (1), Stats.”

This prior decision of the court is founded not only upon the plain meaning of the statute but upon reason. It is obvious that one party should not be held to the terms of an invalid judgment, merely because of the fortuitous death of the other party. Assuming, ad arguendo, that, as the plaintiff claims, there is not sufficient evidence to satisfy the statutory requirements for a divorce on the grounds of cruel and inhuman treatment, it would be palpably unfair to deny’ his appeal from an unlawfully obtained divorce judgment.

Though we find the judgment appealable, we find no cause to reverse, though this is an admittedly close question.

Sec. 247.07 (4), Stats., provides that a divorce may be granted:

“When the treatment of one spouse by the other has been cruel and inhuman, whether practiced by using personal violence or by any other means.”

The testimony upon which a finding of cruel and inhuman treatment can be based is set forth in the statement of facts. They are undeniably scanty: A bare statement that on one occasion the offended spouse was struck and rather meager and equivocally stated testimony that such treatment made the wife nervous and upset. The cruel and inhuman treatment was not corroborated, nor was there any showing that corroboration was not available.

The findings of fact of a trial court on appeal from a judgment in a divorce action must be affirmed unless clearly contrary to the great weight and clear preponderance of the evidence. Stone v. Stone (1896), 94 Wis. 28, 30, 68 N. W. 390; Gordon v. Gordon (1955), 270 Wis. 332, 340, 71 N. W. (2d) 386; Subrt v. Subrt (1957), 275 Wis. 628, 630, 83 N. W. (2d) 122. In the instant case the trial judge did find that “the plaintiff (husband) has treated the defendant (wife) in a cruel and inhuman manner ...” The husband, though present with counsel, did not testify. On the basis of the record, the finding of fact is not only not contrary to the evidence, but is in accord with the only evidence submitted.

We nevertheless feel obliged to comment on the quantum of proof presented. The respondent defends the finding because of the family court commissioner’s recommendation that the divorce be granted and his statement that the parties are “irreconcilable.” The family court commissioner here failed to comply with the statutory mandate that he .advise the court of the merits. While his sociological appraisal that the parties are “irreconcilable” is of importance in determining whether further efforts should be made to save a marriage, his opinion has no probative value. It does not supplant the need for evidence. Our laws properly require not a finding that, the parties cannot get along with each other, but a finding that one of the parties has so violated the contractual obligations of the marriage covenant that under law the other is no longer bound. When the family court commissioner functions as the statute contemplates, he is a valuable adjunct to the court. He can, by his independent investigation, prevent collusive frauds upon the court, can assure that the position of the public and of the parties are fairly presented to the court, and can assure the court that all efforts that are compatible with the public and individual interests have been undertaken to preserve a marital status, but his sociological opinion is not evidence to be weighed in considering the merits of the cause.

Although we cannot thus shore up the skeletal evidence upon which the judgment is based by the family court commissioner’s recommendation, we find it unnecessary to do so in this instance.

Although the only evidence of cruel and inhuman treatment was the striking of a single blow, a single áct of cruelty may be sufficient grounds for divorce. Cf. Roelke v. Roelke (1899), 103 Wis. 204, 78 N. W. 923.

The trial judge had the parties before him and is in a better position than we áre to judge the effects of the acts alleged upon the other spouse. What might well in a less-enlightened age, or under different circumstances, merely constitute a reasonable interspousal chastisement could constitute cruel and inhuman treatment in this case. The; trial court so held, and we have no basis to differ with him.

As this court said in Rohloff v. Rohloff (1943), 244 Wis. 153, 158, 11 N. W. (2d) 507:

“In divorce cases great and almost controlling weight is given to the decision of the trial judge. He has the parties and witnesses before him. In many, if not in most cases, he has some knowledge of the situation or can easily inform himself in regard to it, and is in a better position to pass upon the rights of the parties than is an appellate court.”

Our court has long upheld the right of a trial court to grant a divorce on skeletal proof if the details thereof aré likely to be scandalous. We have thus long recognized the unique position of the trial court to make findings even though these findings are not detailed and ad nauseam supported by the record. But some support there obviously must be, and such support is to be found though scantily in this record.

Perhaps the most-serious objection raised by the appellant is the failure to conform to the requirements of sec. 247.18 (2), Stats., which requires that no divorce shall be granted on the testimony of the parties, unless corroborated by testimony of one not a party “except the ground of cruel and inhuman treatment when no corroborating evidence is available.” We dispose of this contention, as did the court in Swenson v. Swenson (1944), 245 Wis. 124, 127, 13 N. W. (2d) 531:

“The defendant was present in the court when the divorce action was heard and could have denied the testimony of the plaintiff had it not been true. We cannot perceive that the defendant was prejudiced by want of corroboration of evidence, the truth of which he did not deny . . .”

We therefore conclude that the findings and the judgment are not contrary to the great weight and clear preponderance of the evidence.

The plaintiff has also appealed from the order which denied a modification of the judgment. We deem that such an order, though subsequent to the judgment which is sought to be modified, is appealable. Sec. 274.11 (2), Stats. There was no showing that the division of property was unfair or unlawful. It was in fact a division made by the parties themselves with the advice of counsel. The stipulation and judgment were in no wise contingent upon a continued obligation to support. The stipulation referred to the agreement as a “property settlement in lieu of alimony.” The judgment referred to its terms “in lieu of alimony and as a division of property.” The amount due was determined on the date of judgment. The terms of the stipulation merely provided that the husband was to have thirty days in which to raise the money. But his obligation was fixed and liquidated and determined and the wife’s right to payment vested on the day of judgment. We can sympathize with his feeling that there is a “matter of ethics” in giving the money to his mother-in-law. But it must be remembered that the judgment determined that the $8,500 was not his money, but his wife’s money, and it passes to her heirs in accordance with the applicable law — here, to her mother.

Had the wife survived, we have no evidence that the husband would have complained of a bad bargain. It is only by hindsight that he appears in any way to have had a less-advantageous settlement than might have been. Although the husband cannot now get out of his bargain, the wife, had she lived, could not have either. Sec. 247.32, Stats., provides that “. . . when a final division of the property shall have been made ... no other provisions shall be thereafter made for the wife.”

By the Court. — Judgment and order affirmed.


author: Currie, C. J.

text:
    In re Spigner: Baldwin, Director of Department of Public Welfare of Milwaukee County, Appellant, v. Conant, Respondent.

      November 25, 1964 —
    January 5, 1965.

      For the appellant there were briefs by Robert P. Russell, corporation counsel of Milwaukee county, and James E. Talaska, assistant corporation counsel, and oral argument by Mr. Talaska.

    For the respondent there was a brief by Eisenberg & Kletzke, attorneys, and Edwin A. Star of counsel, all of Milwaukee, and oral argument by Mr. Star.

   Currie, C. J.

Sub. (1) of sec. 52.01, Stats., provides as follows:

“The parent, spouse and child of any dependent person (as defined in s. 49.01) who is unable to maintain himself shall maintain such dependent person, so far as able, in a manner approved by the authorities having charge of the dependent, or by the board in charge of the institution where such dependent person is; . . .”

Sub. (4) of sec. 52.01, Stats., provides the order in which the relatives of the classes named in sub. (1) may be required by the county court to provide support to a dependent person. Under this subsection if the dependent is a married woman the order of liability for support is first her husband, then her father, and lastly her children. In the instant case, if Cynthia Spigner be deemed the dependent person for whom public assistance was granted, it was proper to proceed against her father in view of the disappearance of her husband;

The crucial question on this appeal is whether the allocation to Cynthia Spigner of $38.75 per month of the assistance granted by the department as aid to a dependent child under sec. 49.19, Stats., made her a “dependent person” within the meaning of sec. 52.01 (1). If it did not, then the “dependent person” with respect to such item of assistance was Cynthia Spigner’s child, and respondent as grandparent could not be compelled to provide support since a grandparent is not included among the classes of relatives made liable by sec. 52.01 (1).

Sub. (4) of sec. 49.01, Stats., defines a “dependent person” as “. . . a person without the present available money or income or property or credit, or other means by which the same can be presently obtained, sufficient to provide the necessary commodities and services specified in subsection (l).’5 The commodities and services specified in sub. (1) are “. . . food, housing, clothing, fuel, light, water, medicine, medical, dental, and surgical treatment (including hospital care), optometrical services, nursing, transportation, . . . .”

The instant record is silent on the subject of whether Cynthia Spigner would be employable and self-sustaining if not required to stay home and care for her infant child. A majority of the court conclude that if so employable she would possess the “other means” referred to in sub. (4) of sec. 49.01, Stats., by which she would be provided with the commodities and services essential to her support. Therefore, she would not be a “dependent person” within the meaning of this subsection.

A majority of the court further conclude that, although $38.75 per month of the total monthly assistance provided by the department as aid to a dependent child is specifically allotted to Cynthia Spigner, her child (respondent’s grandchild) and not she is the “dependent person” who is the beneficiary of this assistance. Therefore, the county court properly determined that sec. 52.01, Stats., imposes no liability upon respondent to assume the payment of all or any part of this $38.75 per month supplied by the department.

By the Court. — Order affirmed.


author: Gordon, J.

text:
    McCormick and others, Plaintiffs and Appellants, v. Kuhnly and others, Defendants: Miller and another, Defendants and Respondents.

      November 27, 1964 —
    January 5, 1965.

      For the appellants there were briefs and oral argument by Richard R. Rynders of Madison.
    For the respondents there was a brief and oral argument by Max H. Klein of Middleton.

      A brief amicus curiae was filed by Grootemaat, Cook & Franke, attorneys, .and O. A. Grootemaat of counsel, all of Milwaukee, for the Wisconsin Retail Lumbermens Association.
   Gordon, J.

In this case, we must determine whether the materialmen gave timely notice under sec. 289.02 (1), Stats., in order to qualify as lienholders against the owner of the building. Under the statute, a supplier of materials is required to give notice “within 120 days after furnishing the first labor or materials.” The problem requires our applying the quoted language to the facts of the instant case.

The notice claiming a lien was given to the owners on June 7, 1963. This date is more than one hundred twenty days from the date when an original delivery of materials was made (December 17, 1962). However, it is within one hundred twenty days from the date (March 21, 1963) which the appellants claim was the date when deliveries were first made under a new contract relationship.

The appellants stress the fact that they were under no express contract to furnish materials for this construction job. The general contractor purchased materials wherever he found it advantageous to do so. The appellants also stress the fact that after making numerous deliveries on credit between December 17, 1962, and March 6, 1963, they declined to make further deliveries until they were paid for the deliveries which had been made. The account was in fact paid in full on March 11, 1963, and the materialmen urge that the next delivery on March 21, 1963, was made under a new and independent arrangement'. If the supplier’s latter position is correct, the notice given on June 7, 1963, was timely.

There was a break in the deliveries from March 6, 1963, until March 21, 1963, a period of two weeks. Was this a sufficient interruption so as to have ended continuity of the transactions for lien purposes? In 2 Jones, Liens (3d ed.), p. 664, sec. 1435, the author states:

“If the work was done or the materials furnished for separate and distinct purposes, or under distinct contracts or orders, though in executing one and the same contract with the owner, there is no presumption of a continuous account, and the right of lien must date from the time of doing the different jobs of work, or furnishing the different parcels of materials.”

However, the author thereupon adds the following:

“But if there was a continuous dealing and running account, and the work was done and the materials furnished at short intervals, and were appropriate to the condition and progress of the building, a presumption arises that it was understood from the beginning that the claimants were to do the work or furnish the materials for the construction of the building as the same should be required; . . .”

In our opinion, the instant case is controlled by the rea» soning set forth in Taylor v. Dall Lead & Zinc Co. (1907), 131 Wis. 348, 358, 111 N. W. 490, where the court said:

“. . . the existence of such unity of contract is not essential, however, to the unity of the transaction when the latter appears from the continuity of the services, their application to a single enterprise, and the attitude of the parties toward it ” 1L, O O 0

The following observation in the Taylor Case, at page 357, is particularly applicable to the instant case:

“Where, however, the continuity of such deliveries is broken by long and unusual periods of time, a presumption against the unity of the transaction doubtless arises, unless such interruption and severance in time be clearly explained.” (Emphasis added.)

While it is difficult to pronounce what period of time will be deemed to be “long and unusual,” we have- no hesitancy in concluding that the trial court was correct in regarding this two-week interruption as insufficient to create a new date for lien purposes when the delivery of materials was resumed.

The mechanics’-lien statute has frequently been amended to extend the time in which a materialman must give notice. Under ch. 322, Laws of 1943, the period was extended from thirty days to sixty days; under ch. 191, Laws of 1959, it was again amended to one hundred twenty days. Notwithstanding the fact that such enactments are benefical to suppliers, the notice requirement is obviously also designed for the protection of the owner of the building. Sisters of Mercy v. Worden-Allen Co. (1932), 208 Wis. 457, 465, 243 N. W. 456; Dayton Hotel Co. v. Farley & Loetscher Mfg. Co. (1931), 205 Wis. 112, 114, 236 N. W. 595.

By the Court. — Judgment affirmed.


author: Fairchild, J.

text:
    National Guardian Life Insurance Company, Appellant, v. Industrial Commission and another, Respondents.

      November 27, 1964 —
    January 5, 1965.

      For the appellant there were briefs by Spohn, Ross, Stevens & Pick, and oral argument by Frank A. Ross, Sr., and Thomas D. Zilavy, all of Madison.
    For the respondent Industrial Commission there was a brief by Arnold J. Spencer, chief counsel of the unemployment compensation division, and Max J. Peltin of Madison, and oral argument by Mr. Spencer.

   Fairchild, J.

The word “employee” as used in ch. 108, Stats., is defined in sec. 108.02 (3), as follows:

“Employe, (a) ‘Employe’ means any individual who is or has been performing services for an employing unit, in an employment, whether or not he is paid directly by such employing unit; except as provided in par. (b). If a contractor performing services for an employing unit is an employe under this subsection and not an employer subject to the contribution provisions of this chapter, a person employed by the contractor in fulfilment of his contract with the employing unit shall be considered the employe of the employing unit.
“(b) Paragraph (a) shall not apply to an individual performing services for an employing unit if the employing unit satisfies the commission as to both the following conditions:
“1. That such individual has been and will continue to be free from the employing unit’s control or direction over the performance of his services both under his contract and in fact; and
“2. That such services have been performed in an independently established trade, business or profession in which the individual is customarily engaged.
“(c) This subsection shall be used in determining an employing unit’s liability under the contribution provisions of this chapter, and shall likewise be used in determining the status of claimants under the benefit provisions of this chapter.
“(d) Any individual who is, under this subsection, an ‘employe’ of a given employing unit shall be deemed ‘employed’ by that employing unit for the purposes of this chapter.”

The ultimate question is whether Mrs. Wessels, the applicant, was an employee of the company under the definition just quoted. As will be seen, the question readily narrows down to whether Ciulla was an employee under that definition.

The company is concededly an “employing unit.” Ciulla (and Beebe before him) were contractors, performing services for the company for pay. Neither of them were employers subject to the contribution provision. At least, it has not been claimed nor been found that they were so subject. Mrs. Wessels was employed by them in fulfilment of their contracts with the company. Thus, under the definition, she was an employee of the company if they were its employees.

Under the statutory definition Beebe and Ciulla were employees of the company under paragraph (a) unless the company satisfied the commission as to both conditions 1 and 2 of paragraph (b). The commission has found that the company failed to establish either condition. Unless the evidence compels the finding that both have been met, the commission’s decision was properly confirmed by the circuit court.

Apparently the company concedes that its contentions as to Mr. Beebe’s relationship are not so well supported as in the case of Ciulla, and that if Ciulla was its employee under the statute, Beebe was likewise.

The company does not attack in any respect those findings which describe in detail the relationship between Ciulla and the company. They appear to be fully supported by the evidence. We consider that these findings clearly show that the company reserved to itself and exercised a very substantial degree of control over Ciulla’s performance of services for it. We cannot decide upon this record that as a matter of law, Ciulla was free from the company’s control or direction of the performance of his services.

Since the commission declined to find that condition 1 of sec. 108.02 :(3) (b), Stats., was fulfilled and was not obliged to find that it was, it is unnecessary to deal at length with the application to this case of condition 2. We observe, how-, ever, that many of the facts which tend to demonstrate the company’s right to control and direct Ciulla also help to establish that Ciulla’s was not “an independently established trade, business or profession.” We express no opinion as to whether or under what circumstances a general agent whose principal business consists of representing a single life insurance company could fulfil both conditions 1 and 2 so as not to be an employee of the company represented..

Paragraph (g) of sec. 108.02 (5), Stats., defining “employment” lists 16 types of service which shall not be deemed “employment” under the act. The company points out that Bill No. 762, A., 1963 session, would have created a 17th exclusion, of service performed by an individual as an insurance agent, for commissions. The bill was passed by both houses, but vetoed. The favorable vote may indicate that there is a considerable body of opinion supporting a change in the law, but the recognition of such an exclusion in the existing law would far exceed the legitimate scope of interpretation.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.

       See sec. 108.02 (5) (a), Stats., defining “employment” as service performed by an individual for pay.


author: Hallows, J.

text:
    Estate of Ahern: State, Appellant, v. Ahern, Respondent.

      November 27, 1964 —
    January 5, 1965.

      For the appellant the cause was argued by Harold H. Persons, assistant attorney general, with whom on the brief was George Thompson, attorney general.
    For the respondent there was a briéf by John T. Harrington, attorney, and John L. Bruemmer of counsel, both of Madison, and oral argument by Mr. Harrington.

   Hallows, J.

On January 12, 1962, William B. Ahern and three other executives of Oscar Mayer & Co., Inc. (Oscar Mayer) were killed in an airplane accident while traveling in a company-owned airplane on company business. At the time of Ahern’s death Oscar Mayer had in effect two policies of insurance upon his life; one, a noncontributory group life insurance policy issued by Metropolitan Life Insurance Company (Metropolitan policy) as a part of the Oscar Mayer retirement and pension plan; the other, the accidental death group policy involved in this appeal.

Under the Metropolitan group policy an employee of Oscar Mayer could from time to time change the beneficiary by notifying Oscar Mayer and presenting his certificate of insurance. Upon the receipt of the certificate of insurance which was originally given to the employee upon his coming under the policy and which contained a designation of his beneficiary, Oscar Mayer would endorse the change of beneficiary on the certificate and return it to the employee. William B. Ahern on December 26, 1954, designated his wife Catherine E. Ahern as beneficiary of the Metropolitan policy and such designation continued unchanged to the time of his death.

The other policy issued by the Mutual Benefit Health & Accident Association of Omaha, Nebraska (Omaha policy) insured certain key employees of Oscar Mayer against accidental injury and death while traveling in the company’s airplane in the course of their employment. Ahern was not named specifically in the policy but came under its protection as a “protected person” by qualifying as one of the members of the class designated therein. The policy was applied for by Oscar Mayer without consulting its employees or having any duty to do so and without any obligation to provide such insurance.

In negotiating for this group accident policy, endorsements were attached modifying the printed portion of the policy. Paragraph 14, page 24, of the printed part of the Omaha policy provided:

“Change of beneficiary: The right to change of beneficiary is reserved to the protected person and the consent of the beneficiary or beneficiaries shall not be requisite to surrender or assignment of this policy or to any change of beneficiary or beneficiaries, or to any other changes in this policy.”

This was modified by rider No. 373M which provided:

“(1) The beneficiary with respect to loss of life of a protected person shall be as follows:
“100% to the beneficiary named in said protected person’s non-contributory group life insurance policy furnished by the policyholder.
“(2) The provision of the policy which reserved the right to change of beneficiary to the protected person is hereby made inoperative.
“(3) The following cancelation provision is incorporated in the policy as a part of the general provisions:
“This policy may be canceled by either the policy holder or the association by mailing or delivery of written notice to the other stating the hour cancelation becomes effective. If canceled by the association, not less than ten days prior notice shall be given. Cancelation shall be without prejudice to any claim originating prior thereto.
“If this policy is canceled by the policyholder, earned premium will be computed in accordance with the customary short rate table and procedure, but in any event the association will retain not less than $1,000 minimum premium. If this policy is canceled by the association, earned premium will be computed on a pro rata basis. In event of cancelation, the association will return promptly to the policyholder any unearned portion of the premium previously paid.”

On February 1, 1962, Oscar Mayer notified the Mutual Benefit Health & Accident Association that William B. Ahern had been killed in an airplane accident, was covered by its policy, and his beneficiary named in the Metropolitan policy was Catherine E. Ahern, the decedent’s widow. Sometime later the $50,000 benefit was paid under the Omaha policy to the widow.

The trial court held that because printed paragraph 14 of the Omaha policy, in respect to the right of a person like the decedent to change his beneficiary, was eliminated by the endorsement, the law of contracts governing third-party-beneficiary contracts and particularly Tweeddale v. Tweed- dale (1903), 116 Wis. 517, 93 N. W. (2d) 440, applied. Under this doctrine a contract for the benefit of a third party cannot be changed without the consent of the third party. Under the trial court’s view and that of the estate, the effect of the endorsement was not to grant to the decedent and other protected persons any right to change their respective beneficiaries who were designated by Oscar Mayer by reference to the designations made under the Metropolitan policy.

The state on the other hand contends that under the Omaha policy the beneficiary to receive the accidental death proceeds thereof is whoever is the one named as beneficiary of the Metropolitan policy to receive the ordinary death benefit at the time of the employee’s death. This contention is based upon the language in the rider that the beneficiary named in the Omaha policy “shall be” the beneficiary named in the Metropolitan policy. The controlling question is whether the language of the Omaha policy designating the beneficiary by reference to the Metropolitan policy gave the employee the right to change his beneficiary.

These insurance policies are group policies, not individual policies. Under the group Metropolitan policy which covered many more employees than the Omaha policy, the designations of beneficiaries are not attached as riders to the policy. It is customary in such group insurance to issue the master policy to the employer and furnish certificates of insurance to those persons covered by the master group policy. Neither Ahern’s certificate nor the policies are in the record but certain provisions of both policies were read into the record. It was clear that under the Metropolitan group policy Oscar Mayer kept a record of the designations of beneficiaries which were made from time to time and endorsed the current beneficiary on the certificate of insurance held by the employee. This method of the employer’s keeping the record of the current beneficiaries under a group policy covering employees is commonplace. See Luebke v. Vonnekold (1947), 250 Wis. 496, 27 N. W. (2d) 458; Kaiser v. Prudential Ins. Co. (1956), 272 Wis. 527, 76 N. W. (2d) 311.

The printed form of the Omaha policy reserved to the protected person the right to change a beneficiary. Although this provision was made inoperative by the rider at the time of the issuance of the policy, that portion of the rider must be read with the other provisions of the same rider to ascertain the reason therefor. These provisions provided the beneficiary shall be the beneficiary of the Metropolitan policy and the right to cancel the policy was reserved to Oscar Mayer.

In designating the beneficiaries of the Omaha policy Oscar Mayer did not consult its employees but by the rider provided the beneficiary of each protected person “shall be” the beneficiary in the Metropolitan policy. We think it of some significance that the tense of the verb is future. Oscar Mayer in keeping a record of the beneficiaries from time to time under the Metropolitan policy could well anticipate changes in beneficiaries to meet changing conditions. The language of the rider in the first subparagraph designating the beneficiaries in reference to the Metropolitan policy carries with it the right to change the beneficiary as provided in that policy. Thus by reference Oscar Mayer correlated the two insurance policies. The rider then makes the provision in the Omaha policy reserving the right to change the beneficiary under the terms of that policy “inoperative.” This language does not expressly say that the right is denied or withdrawn. Making this provision inoperative has no more legal effect than if this provision of the paragraph had never been in the printed form. If this provision were not made inoperative, an employee would have the power to change his beneficiary of the Omaha policy independent of his designation under the Metropolitan policy and to designate a beneficiary different therefrom. The inapplicability of this provision in the Omaha policy was necessary and compatible with having the same beneficiary for both policies and does not require a narrow construction that an employee had no power to change the beneficiary of the Omaha policy.

We find nothing in the record why Oscar Mayer would allow its employees to change beneficiaries under a group life insurance policy but not allow the. same employees to change the beneficiaries under an accidental death policy. Nor does the nature of the insurance suggest any reason for any difference. We construe the Omaha policy as giving a right to a protected person thereunder to change his beneficiary in accordance with the manner and the right he has under the Metropolitan policy.

No serious argument is made that such a right is not sufficient subject matter to ground a tax under sec. 72.01 (7), Stats. The relationship of the decedent with the Omaha policy was that certain benefits would be paid upon injury or his accidental death, i.e., he was the insured, and that he had a right to change the beneficiary to receive the death proceeds. He was not the owner of the policy; he did not take it out or pay the premiums. , This section as initially enacted would not have covered the policy because, as we said in Will of Allis (1921), 174 Wis. 527, 184 N. W. 381, the legislature intended to include as taxable only such insurance as the insured effected on his own life for the benefit of another and on which he paid the premiums. After the amendment of the section by ch. 462, Laws of 1929, we stated in Estate of Siljan (1939), 233 Wis. 54, 288 N. W. 775, that the section taxed the insurance' provided by an insured on his own life' if premiums were paid by a third person out of funds supplied by the insured, but held the section did not include insurance effected by the insured on his life for the benefit of another who paid the premiums thereon.

By ch. 405, Laws of 1939, this section was further broadened in scope to its present form to make taxable the proceeds of “insurance payable upon the death of any person” if at the time of his death any legal incidents of ownership in such insurance remained in him. This section is substantially broader in scope than the sec. 2042 (2) of the 1954 Internal Revenue Code, 26 USCA, p. 282, sec. 2042 (2), taxing “insurance under policies on the life of the decedent” which was construed in In re Noel’s Estate (3d Cir. 1964), 332 Fed. (2d) 950, not to subject accident insurance (airplane-flight insurance) to the federal estate tax. In the instant case, the power to change the beneficiary, though perhaps not an unrestricted power, “remained” in the decedent and is sufficient to support the inheritance tax.

By the Court. — Order reversed.

Beilfuss, J., dissents.

       Under this construction of the Omaha policy, sec. 246.09, Stats., relating to a married woman’s right as a beneficiary of certain policies of insurance, has no application even if that section applies .to accidental death insurance, a question we do not decide. See Luebke v. Vonnekold, supra.


author: FaIRCHild, J.

text:
    Van Voorhis, Plaintiff in error, v. State, Defendant in error.

      November 30, 1964 —
    January 5, 1965.

      For the plaintiff in error there was a brief and oral argument by Edward R. Bollenbeck of Appleton.
    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were George Thompson, attorney general, William A. Plats, assistant attorney general, and Nick F, Schaefer, district attorney of Outagamie county.
   FaIRCHild, J.

Sec. 957.26 (2), Stats., requires that upon arraignment, the court shall advise any person charged with felony of his right to counsel and that if he is indigent the court will appoint counsel at his request. A record of the advice and reply must be made in either the docket or transcript.

There is a transcript in this case, but it shows that the court failed to advise Van Voorhis that counsel would be furnished to him, if indigent, at his request. The lack of compliance with the statute is clear. We have, however, suggested in an earlier decision that a defendant cannot raise this error on appeal or writ of error as a matter of right unless he has first raised it in the trial court. We now so hold. Statements in previous cases assuming that on appeal reversal would be automatic are withdrawn.

The basic question presented by the instant case is whether, on application to the trial court, the trial court is confined to the record and must grant relief where the statute was not fulfilled or whether the trial court may consider additional evidence in order to determine whether, in fact, the defendant had sufficient knowledge with respect to his right to counsel and the furnishing of .counsel to indigents so that the failure to advise him as required by the statute was immaterial.

Where a convicted and imprisoned defendant who was not represented by counsel applies to this court for a writ of habeas corpus on the ground that he did not intelligently waive his right to counsel the question whether, in fact, he sufficiently understood his rights is explored. On such inquiry his waiver may be found not to have been intelligent even though the record discloses compliance with sec. 957.26 (2), Stats. Or it may be found to have been intelligent even though this statute was not fulfilled.

A convicted defendant may make the same claim in an application to the trial court for a new trial or for leave to withdraw a plea of guilty if made within one year. It is logical that the same scope of inquiry would be permitted.

Sec. 957.26 (2), Stats., was enacted in an attempt to have advice concerning right to counsel given as a matter of course and a record made thereof. Where, in a particular case this was not done, but it can be shown that the defendant knew of his right to counsel without such advice by the court, there seems to be little reason for setting aside the conviction.

It therefore seems to us reasonable and logical to permit the trial court to inquire into defendant’s knowledge of his rights when he applies for relief upon the ground that the court failed to advise him. Since the statutory policy is that the advice be given and recorded, we consider that the state should carry the burden of proof (risk of nonpersuasion) in proving by clear and convincing evidence that the advice was unnecessary in the particular case.

Several fundamental propositions may be summarized as follows: A convicted defendant who was not represented by counsel, and who claims that he did not intelligently waive counsel, has an adequate remedy by application to th,e trial court within one year after trial upon a plea of not guilty or after a finding upon a plea of guilty. Where the record shows compliance with sec. 957.26 (2), Stats., and an apparent waiver of counsel, the burden of proof is upon defendant to show that his waiver was not intelligent; where the record does not show such compliance, the burden is upon the state to show that waiver was intelligent. In such inquiry, neither party is limited to the facts of record prior to conviction, but may offer additional evidence relevant to the knowledge and understanding of defendant. A claim that defendant was not properly advised cannot be raised as a matter of right on review of the judgment unless the claim was raised in the trial court before judgment. If not so raised before judgment, the claim can be raised here by appeal from the order of the trial court, after judgment, denying an application on that ground for a new trial or leave to withdraw a plea. Although an application for leave to withdraw a plea is ordinarily addressed to the discretion of the court such withdrawal would be a matter of right if the applicant established in fact a denial of a relevant constitutional right, such as right to counsel. It should also be observed that although sec. 957.26 (2), applies by its terms only to one charged with a felony, similar problems now may arise with respect to one charged with misdemeanors who is exppsed to the possibility of a substantial sentence of imprisonment.

In the instant case, Van Voorhis requested a writ of error to review the judgments. He had not raised his claim with respect to right to counsel before the judgments, and in accordance with the propositions just stated we would affirm. It happens, however, that the record of proceeding after the judgments has also been forwarded to us and the state, as defendant in error, has relied upon this portion of the .record in arguing that the omission of advice concerning the furnishing of counsel was immaterial. The fact that Van Voorhis applied to the trial court is not before us unless we take notice of this portion of the record. Thus Van Voorhis’ position will not be impaired by our considering the additional portion and the state is asking us to do so. Under the circumstances, we deem it proper to review such portion of the record in order to determine whether we should exercise our discretionary power under sec. 2S1.09, Stats.

As previously stated the county court found that Van Voorhis was, in fact, aware of his rights and that he intelligently waived counsel. The proof offered on the application after judgments amply supports the finding. The following facts appear:

In 1949 Van Voorhis appeared before the circuit court for Wood county charged with larceny. The minutes of the clerk show that he was advised of his constitutional right to counsel; that he was asked whether he desired counsel appointed by the court and that he stated that he did not. He pleaded guilty and was sentenced to imprisonment.

In 1951 he was before a court in Shawano county charged with breaking and entering and larceny. The minute book shows tljat he was informed of his constitutional right to counsel. He desired counsel and counsel was appointed. In connection with his request for counsel, he executed an affidavit of indigency. He was found guilty and was sentenced to prison.

In 1958 he was charged with forgery in the same court. The court told him of his right to counsel and that the court would appoint an attorney if he could not afford one. He said he understood but did not want counsel. He pleaded guilty and was sentenced to imprisonment.

In June, 1963, about six weeks after being sentenced in the instant case, Van Voorhis wrote a letter to the district attorney complaining about the severity of sentence. He pointed out, among other reasons why he should have beep treated with leniency, that he was trying to save the county money by not taking a court-appointed lawyer. In September, 1963, he wrote a similar letter to the judge indicating that he had appeared without counsel because he figured it would save the county money if none were appointed.

By the Court. — Judgments affirmed.

        State v. Greco (1955), 271 Wis. 54, 57, 72 N. W. (2d) 661.

        State ex rel. Doxtater v. Murphy (1946), 248 Wis. 593, 601, 22 N. W. (2d) 685; State ex rel. Casper v. Burke (1959), 7 Wis. (2d) 673, 678, 97 N. W. (2d) 703.

       See State ex rel. Burnett v. Burke (1964), 22 Wis. (2d) 486, 126 N. W. (2d) 91, although the conviction there involved occurred before sec. 957.26 (2), Stats., was enacted.

        State ex rel. Casper v. Burke, supra, footnote 2. See Babbitt v. State (1964), 23 Wis. (2d) 446, 127 N. W. (2d) 405.

       See Pulaski v. State (1964), 23 Wis. (2d) 138, 126 N. W. (2d) 625.

        State v. Payne (1964), 24 Wis. (2d) 603, 129 N. W. (2d) 250; Myartt v. State (1964), 25 Wis. (2d) 634, 131 N. W. (2d) 371.

        Melvin v. Burke, unreported case rendered by the United States Federal District Court, Eastern District of Wisconsin, on August 27, 1963. See 36 Wisconsin Bar Bulletin (October, 1963), pages 62, 63.


author: Beilfuss, J.

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

      November 30, 1964 —
    January 5, 1965.

      For the plaintiff in error there was a brief and oral argument by I. Engle of Waukesha.

      For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were George Thompson, attorney general, William A. Plats, assistant attorney general, and Roger P. Murphy, district attorney of Waukesha county.
   Beilfuss, J.

I. Did the Trial Court err in Allowing the Case to he Tried by a six-member Jury, Without the Express Consent of the Defendant?

Sec. 957.01 (2), Stats., provides:

“At any time before verdict the parties may stipulate in writing or by statement in open court, entered in the minutes, with the approval of the court, that the jury shall consist of any number less than 12.”

The following colloquy took place between counsel and the court:

“The Court: As I understand, you have stipulated to a jury of six?
“Mr. Krause [Defense counsel] : Yes, Your Honor..
“Mr. Collins [Prosecution] : Yes, Your Honor.”

Defendant was present, next to his counsel, at that time. No objection was made. At oral argument it was not suggested that at the time of the trial defendant wished, in fact, to have a 12-man jury.

In State ex rel. Derber v. Skaff (1964), 22 Wis. (2d) 269, 125 N. W. (2d) 561, Derber. had pleaded not guilty and not guilty by reason of insanity. His counsel waived trial by jury. Derber made no objection. This court rejected the argument that the waiver of a jury must bq so stated by the accused; many acts are done on behalf of a party by his attorney. In view of the fact that the accused was present when his counsel waived a jury, this court said (p. 274):

“We think, however, that the presence and silent acquiescence of the defendant in a case such as the, instant one sufficiently demonstrates the authority of the attorney to speak for the defendant, and make the attorney’s statement his own.”

Defendant cites State ex rel. Burnett v. Burke (1964), 22 Wis. (2d) 486, 126 N. W. (2d) 91. Burke is not in point. There, defendant waived his right to counsel under circumstances which the court found to be other than free, voluntary, and with an appreciation of the effect of his waiver.

In Horne v. United States (5th Cir. 1959), 264 Fed. (2d) 40, certiorari denied (1959) 360 U. S. 934, 79 Sup. Ct. 1460, 3 L. Ed. (2d) 1549, the court approved the use of an 11-man jury. The trial started with 12 jurors but on the second (and final) day of the trial, one juror failed to appear, due to illness. The court found, from inferences, that the defendant knew of the agreement by his counsel and counsel for the government to proceed with only 11 jurors. No' objections were made by the defendant.

In Jennings v. State (1908), 134 Wis. 307, 114 N. W. 492, this court held that the accused, pleading not guilty to an information, could not waive the right to trial by jury, in the absence of a statute giving that right. We now have that statute. Sec. 957.01 (2), Stats.

In Patton v. United States (1930), 281 U. S. 276, 50 Sup. Ct. 253, 74 L. Ed. 854, the court said that the defendant has the power to “waive a trial by a constitutional jury and submit to trial by a jury of less than 12 persons, or by the court, . . .” (p. 312). There must be express and intelligent waiver by the defendant. Patton v. United States, supra.

At the outset of the opinion, the court said, page 290:

“. . . In other words, an affirmative answer to the question certified logically requires the conclusion that a person charged with a crime punishable by imprisonment, for a term of years may, consistently with the constitutional provisions already quoted [Sec. 2, art. Ill, clause 3, Sixth amendment], waive trial by a jury of twelve and consent to a trial by any lesser number, or by the court without a jury.”

In Hack v. State (1910), 141 Wis. 346, 352, 124 N. W. 492, it was said:

“Surely the defendant should have every one of his constitutional rights and privileges, but should he be permitted to juggle with them? Should he be silent when he ought to ask for some minor right which the court would at once give him, and' then when he has had his trial, and the issue has gone against him, should he be heard to say there is error because he was not given his right? Should he.be allowed to play his game with loaded dice? Should Justice travel with leaden heel because the defendant has secretly stored up some technical error not affecting the merits, and thus secured a new trial because forsooth he can waive nothing? We think not. We think that sound reason, good sense, and the interests of the public demand that the ancient strict rule, framed originally for other conditions, be laid aside, at least so far as all prosecutions for offenses less than capital are concerned. We believe it has been laid aside in fact (save for the single exception that trial by a jury of twelve cannot be waived unless authorized by a specific law) by the former decisions of this court.”

The right to completely waive a jury trial is established. It would be illogical to hold that parties could not consent to a trial by less than 12 jurors, when they can waive their right as to all 12 jurors.. This construction we deem to be implicit in the language of sec. 957.01 (2), Stats.

II. Did the Court err in Permitting Cross-examination by two Assistant District Attorneys?

At one point during the trial, defendant was cross-examined by two assistant district attorneys.

Defendant argues that sec. 957.14, Stats., includes the provisions of sec. 270.205. It does not.

Sec. 270.205, Stats., provides:

“On the trial not more than one attorney on each side shall examine or cross-examine a witness . . . unless the judge shall otherwise order.”

Sec. 957.14, Stats., provides:

“The summoning of jurors; the impaneling and qualifications of the jury; the challenge of jurors for cause; the duty of the court in charging the jury and giving instructions and discharging the jury when unable to agree shall be the same in criminal as it is in civil actions, . . .”

In Heyroth v. State (1957), 275 Wis. 104, 81 N. W. (2d) 56, it wás held that only those rules of civil procedure expressly enumerated in sec. 957.14, Stats., are applicable in criminal friáis.

But assume that sec. 270.205, Stats., does apply, was there prejudicial error committed? Abuse of discretion would have to be shown. In our view, none has been shown.

Defendant did not object to this practice. He thereby waived his right to object. A party cannot sit by letting errors of the trial court go unnoticed. Okershauser v. State (1908), 136 Wis. 111, 116 N. W. 769.

In Emery v. State (1899), 101 Wis. 627, 645, 78 N. W. 145 (in which counsel failed to object to irregularities in the summoning of the jury), it is said:

“Silence when objection ought to be made works a waiver as much as express assent.”

The cross-examination by the two assistant district attorneys as it appears in the record discloses nothing which was abusive, harassing, or unfair. While we deem the practice of allowing just one attorney to cross-examine a given witness to be preferable, we recognize that there are instances where permitting a cross-examination by more than one counsel may be desirable in the interest of justice and obtaining a fair trial. This and related problems in the conduct of a trial must rest within the sound discretion of the trial judge. His actions are not error unless abuse of discretion appears. Mandella v. State (1947), 251 Wis. 502, 29 N. W. (2d) 723 (in reference to separate trials). Permitting two assistant district attorneys to cross-examine in this case was not such a prejudicial event as to have influenced the outcome of the trial, thus necessitating reversal. Dowd v. Palmer (1944), 245 Wis. 593, 15 N. W. (2d) 809.

III. Were Defendant’s Constitutional Rights Invaded When he was Prosecuted by Information rather than by Indictment?

Defendant claims his prosecution by way of information, rather than by indictment, is unconstitutional. The claim is that the Fifth amendment to the United States constitution requires states to prosecute upon the indictment of a grand jury.

In Goyer v. State, post, p. 244, 131 N. W. (2d) 888, decided in this assignment of cases, the same assignment of error was presented. In Goyer we concluded that a criminal prosecution by way of information rather than grand-jury indictment was not constitutional error. Our determination in Goyer rules the issue here.

IV. Was the'Sentence Imposed Excessive?

Defendant received a ten-year sentence. Under sec. 943.20 (1) (a), Stats., he could receive a maximum sentence of five years. As a repeater he could have received an increased sentence pursuant to sec. 939.62 (1) (b).

This court will review and reverse a case where justice would otherwise miscarry. Sec. 251.09, Stats. But this court will not do so unless it is convinced that there has been a probable miscarriage of justice. Chapnitsky v. McClone (1963), 20 Wis. (2d) 453, 122 N. W. (2d) 400; Scalzo v. Marsh (1961), 13 Wis. (2d) 126, 108 N. W. (2d) 163.

State v. Tuttle (1963), 21 Wis. (2d) 147, 150, 124 N. W. (2d) 9, is apt:

“It seems to us that this question should be treated in terms of strong policy against interference with the discretion of the trial court in passing sentence and not of lack of power to do so. We are very reluctant so to interfere. The trial court has great advantages in considering all relevant facts, including the opportunity to observe the defendant, which it always has in felony cases and ordinarily in other cases.
“. . . We consider that we have the power to review sentences to determine whether an abuse of discretion clearly appears, and to remand for resentencing or to modify a sentence. We withdraw all past statements indicating that the court lacks power to do so, although it will be a rare case where the power will be used.”

The trial court had an opportunity to consider all pertinent matters, including defendant’s prior criminal record, his admitted false testimony at the trial, his gross misstatement in obtaining possession of the vehicle, the fact that he subsequently obtained another vehicle in the same manner, and his demeanor and attitude during the trial and at the time of sentence.

The sentence imposed is substantial but within statutory limits. There is no sufficient showing of abuse of discretion such as to compel us to interfere.

V. Should a New Trial be Granted in the Interests of Justice?

It is argued that this court should exercise its authority pursuant to sec. 251.09, Stats., and grant a new trial in the interests of justice. The basis of the argument is that defendant’s counsel did not poll the jury.

The jury deliberated for twenty minutes. Defendant’s counsel at the trial declined to poll the jury when the court asked him if he so wished. Counsel then said:

“My client has requested that the court pass sentence today .. . .”
“The Court: Mr. Krause, is there anything you wish to say before sentence is pronounced ?
“Mr. Krause: The defendant has been found guilty by the jury. We will at this time throw ourselves completely on the mercy of the Court.
“The Court: Is there anything you wish to say, Mr. Das-cenzo ?
“Defendant: No.”

No motion for a new trial was made.

Nothing appears in the record which reaches the level of a miscarriage of justice. Reversal of convictions is exercised with great reluctance. Ferry v. State (1954), 266 Wis. 508, 63 N. W. (2d) 741; Jacobsen v. State (1931), 205 Wis. 304, 237 N. W. 142.

Is there here such a grave doubt as to the guilt of defendant, State v. Fricke (1934), 215 Wis. 661, 255 N. W. 724, that justice may have miscarried? We believe not. The defendánt testified on his own behalf. The jury, in light of his demeanor, testimony, and facts adduced (such as driving the car 300 miles — irrespective of what defendant says was his intent), chose not to believe the defendant. The facts here are not so improbable as to create a grave doubt as to defendant’s guilt. Schuh v. State (1936), 221 Wis. 180, 266 N. W. 234.

VI. Is Review of the Sufficiency of the Evidence Proper Where There is no Motion for New Trial?

A person convicted of a crime has a right to demand appellate review by the supreme court as to whether guilt has been sufficiently established. Hamilton v. State (1920), 171 Wis. 203, 176 N. W. 773; Lonergan v. State (1901), 111 Wis. 453, 87 N. W. 455.

The propriety of review where the court feels that justice would otherwise miscarry has been considered, supra, topic V.

Consideration now will be directed to challenges to the sufficiency of the evidence in the absence of a motion to set aside the verdict and grant a new trial. In this case it cannot be done, but if it could there is sufficient evidence to support the jury’s verdict.

A motion to set aside the verdict on the ground of insufficiency of the evidence is necessary for defendant to be entitled to review in this court. State v. Tuttle, supra; State v. Dunn (1960), 10 Wis. (2d) 447, 103 N. W. (2d) 36; Ferry v. State, supra.

Errors, if any, committed during the course of the. trial should not serve to overturn a judgment “ ‘unless it appears pretty clearly that had they not occurred, the result might probably have been more favorable to the party complaining.’ ” State v. Esser (1962), 16 Wis. (2d) 567, 599, 115 N.W. (2d) 505.

The facts and the inferences to be drawn therefrom seem to weigh too heavily against the defendant. It is unlikely that permitting only one assistant district attorney to cross-examine, the failure of defendant’s counsel to poll the jury, and yes, even the waiver of the 12-man jury, would have altered the outcome.

There is sufficient evidence upon which the conviction may stand. In State v. Wickstrom (1961), 14 Wis. (2d) 416, 423, 111 N. W. (2d) 176, it is said:

“There was sufficient credible evidence to convince the jury beyond a reasonable doubt that the defendant was guilty. The power of this court to disturb a finding of a jury in a criminal case ends with the discovery of evidence to sustain the verdict. Parke v. State (1931), 204 Wis. 443, 235 N. W. 775. The test on review is whether there is credible evidence upon which a jury could be convinced beyond a reasonable doubt of the accused’s guilt.”

To the foregoing, consider State v. Kuenzli (1932), 208 Wis. 340, 347, 242 N. W. 147:

“However, intent is a state of mind which can be evidenced only by the words or conduct of the person who is claimed to have entertained it. The jury was under no obligation to accept the direct evidence of intent furnished by the defendant, and must be permitted to infer intent from such of defendant’s acts as objectively evidence his state of mind.”

It is not incredible for the jury to conclude that a man who by scheme is permitted to remove a car from a used-car lot, “for a test drive,” who uses an alias as part of his scheme, who lies about his family status, who goes on a 300 mile “test drive,” who practices the same scheme in another city, who violated his Huber Law' privileges in so doing, is guilty of the crime of car theft. This- conclusion of guilt is not only permissible but convincing.

By the Court. — Judgment affirmed.


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

      November 30, 1964 —
    January 5, 1965.

      For the plaintiff in error there was a brief and oral argument by Jack L. Goodsitt of Milwaukee.
    For the defendant in error the cause was argued by Betty R. Brown and William A. Plats, assistant attorneys general, with whom on the brief were George Thompson, attorney general, and William J. McCauley, district attorney of Milwaukee county.

       Motion for rehearing denied, without costs, on March 17, 1965.

   Gordon, J.

“But a State cannot be expected to move with the celerity of a private business man; it is enough if it proceeds,, in the language of the English Chancery, with all deliberate speed.”
—Holmes, J., Virginia v. West Virginia (1911), 222 U. S. 17, 19, 32 Sup. Ct. 4. 56 L. Ed. 71.

The recitation of facts preceding this opinion demonstrates that most of the early delay in the defendant’s being brought to trial was occasioned by the defendant. Indeed, the defendant’s present counsel does not contend that there was any abuse of Hansen’s right to a speedy trial during the period of time between the issuance of the warrant (December 5, 1959) and the request for a prompt trial (March 17, 1961).

Although the defendant was subsequently returned to custody because of other alleged crimes, he was originally released on bail with reference to the instant charges. He was admitted to bail on December 7, 1959, and the record does not disclose the date when he was returned to custody.

The question before us is whether the delay from March 17, 1961, to July 11, 1961, constitutes a denial of the defendant’s right to a speedy trial under the Sixth amendment of the United States constitution or under sec. 7, art. I of the Wisconsin constitution. We conclude it does not.

At the hearing in the circuit court on March 17, 1961, the judge stated that he had no trial space until July 11, 1961. The defendant’s counsel then remarked, “That will be all right.” Later, when the defendant’s counsel spoke of his client’s eagerness to have the matters “tried as soon as possible,” the trial judge suggested that the attorney “keep in touch with me occasionally about the situation and I would be glad to shift it to an earlier date . .

Upon this appeal, the defendant urges that once an accused has demanded a prompt trial, there should be an established time span after which he may not constitutionally be tried. While a mandate of that kind would perhaps simplify the problems concerning speedy trials, we consider that it is not so wise a rule as presently prevails in this state; such rule has evolved from several decisions of this court which will hereafter be noted. Unless a series of exceptions were annexed, the rule proposed by the defendant would not provide any latitude in the event of a justifiable delay such as may be caused by the illness of the judge or by the belated filing of a demand for a change of venue.

In State v. Carli (1957), 2 Wis. (2d) 429, 439, 86 N. W. (2d) 434, 87 N. W. (2d) 830, we quoted the following:

“ ‘One accused of crime is not entitled to a trial immediately on his arrest or accusation, he must wait until a regular term of the court having jurisdiction of the offense with which he is charged, . . . Further, his right is not infringed by continuances in the discretion of the presiding judge, unless such discretion is arbitrarily exercised.’ ”

In Kopacka v. State (1964), 22 Wis. (2d) 457, 460, 126 N. W. (2d) 78, this court said:

“Each case involving the issue of denial of a speedy trial turns on its own facts, although the general rule is stated to be that the right to a speedy trial is a right to be tried as soon as is reasonably possible. A motion to dismiss for lack of speedy trial will be denied where the accused is tried •as soon as the orderly conduct of the business of the court 'permits. ” ( Emphasis added.)

Applying the foregoing standards to the instant case, it is clear that Hansen was brought to trial “as soon as the orderly conduct of business of the court permits.” Even though almost four months elapsed between the accused’s demand and the actual trial, it cannot be said in this case that the presiding judge was arbitrary in the exercise of his discretion.

The absence of any abuse of discretion is established in the instant case because of a combination of the following factors:

1. The period of the delay between the demand and the trial (just under four months) was not so long as to shock the court. In the Kopacka Case, at page 461, we noted that “mere lapse of time does not, by itself, constitute denial of the right to speedy trial, . . .” Nevertheless, a significantly greater delay would surely be a major factor in weighing whether there had been an arbitrary and unreasonable delay on the part of the trial court.

2. The orderly operation of the trial court did not permit an earlier trial. The accused has not challenged, upon this appeal, the trial court’s declaration that its trial calendar was crowded.

3. The trial was to be submitted to a jury, which would necessarily require more time than a trial to the court without a jury. This somewhat augmented the trial court’s problem in finding an open date for the trial.

4. The accused had been released on bail, at least with reference to the charges in question.- Standing alone, this would not be a sufficient reason for an excessively delayed trial. State ex rel. Fredenberg v. Byrne (1963), 20 Wis. (2d) 504, 123 N. W. (2d) 305. Nevertheless, it is one of the several factors entitled to consideration.

5. The court expressed its willingness to advance the trial of the case in the event there was a break in the court’s calendar.' The failure of the defendant’s counsel to pursue the court’s suggestion to “keep in touch” brings the instant case close to the concept of “affirmative action” required in the Kopacka Case (p. 460), as well as in State v. Sawyer (1953), 263 Wis. 218, 224, 56 N. W. (2d) 811, dismissed 346 U. S. 801, 74 Sup. Ct. 66, 98 L. Ed. 333.

We conclude that the defendant was not denied his constitutional right to a speedy trial.

By the Court. — Judgment affirmed.