text:
    Felger, Assignee, Plaintiff and Respondent, v. Kozlowski and another, Defendants: Superior Cast Stone Company, Inc., Defendant and Appellant.

      September 30

    October 27, 1964.

      For the appellant there was a brief by James D’Amato, attorney, and Robert T. McGraw and James J. Caldwell of counsel, all of Waukesha, and oral argument by Mr. Caldwell:

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

   Fairchild, J.

Economy was adjudicated a bankrupt. Among its records were a copy of a statement of an account receivable and copies of supporting invoices reflecting seven sales of goods by Economy to Superior in January, 1960, at a total net price of $2,071.64. Plaintiff claimed that this account was assigned to him by the trustee in bankruptcy.

Upon the trial, Superior contended that it was an agent for Economy in these transactions; that they were actually sales to others; and that Superior’s only obligation was to remit amounts collected from the ultimate purchasers. The county court found, however, that these were sales to Superior, and this finding is not challenged on appeal.

Counsel for Superior does attack the sufficiency of plaintiff’s proof of his title to the account.

A plaintiff suing as assignee of a debt must prove a valid assignment in order to sustain his cause of action. He must establish that there was a cause of action, assignable in nature, and that it has been assigned to him. The assignee is not required to prove the negative of such defenses as payment.

The record in the present case discloses the following: A cause of action in favor of Economy arose in 1960. Whatever interest Economy retained at the time of bankruptcy was transferred to the trustee by operation of law. Plaintiff produced a certified copy of an order of the referee in bankruptcy, entered after hearing upon notice to creditors, authorizing the trustee to sell to plaintiff for $100 whatever interest the trustee had in this and a number of other uncollected accounts receivable. Plaintiff testified that he purchased these accounts from the trustee and was given a copy of the order. He received no written assignment, but all records of Economy pertaining to the account were turned over to him. He produced the copies of the statement and supporting invoices. Mr. Hogan, the managing officer of Economy, identified them as records of Economy. The statement produced was a carbon copy of an original which had been sent to Superior, and the “sheets of Exhibit 6” reflected the transactions appearing in the statement.

We deem that this record establishes a prima facie case of a valid assignment to plaintiff.

Counsel argues that the order of the bankruptcy court was not sufficient proof of an assignment. Standing alone, it merely showed that the trustee was authorized to sell the account to plaintiff. Plaintiff’s testimony, and the delivery to him of Economy’s records of the account sufficiently established that the trustee did sell the account to him, as authorized.

Counsel for Superior points to certain testimony with respect to Exhibit 6 and contends that it appears therefrom that the account sued upon had been assigned to another by Economy before bankruptcy. Exhibit 6, as clearly appears from the testimony, consisted of a number of papers. Evidently some of them bore a stamped legend indicating an assignment of the “within account receivable” to the City Bank & Trust Company. Mr. Hogan testified that some of the papers in Exhibit 6 bore his signature and some did not, and, further:

“Q. What is the purpose of the signature on that document? A. The signature on the papers in Exhibit No. 6 are an indication that the account had been assigned to the City Bank and Trust Company.
“Q. And where your signature appears on these instruments, the same applies to each, is that right? A. When they are signed over the stamp that appears in the lower left-hand corner, yes, that is the indication.”

Unfortunately, the complete Exhibit 6 is not before us, but counsel have agreed that we consider what is here. We have one invoice, numbered 700, dated September 2, 1959, invoicing goods to Superior at $62.50. It bears the assignment legend and Hogan’s signature, dated September 3, 1959. We also have the invoices which relate to the sales in January, 1960, which appear on the statement of account, and are the foundation of the judgment entered in the county court. None of these bear the assignment legend. Mr. Hogan’s testimony suggests that there were other sheets in Exhibit 6 which did bear assignments, but the record does not include them, nor show that they were material to the January, 1960, transactions. The assignment dated September 3, 1959, which is here, is irrelevant to the later transactions. In our view the record does not sustain the claim made by Superior that the cause of action sued upon had been assigned by Economy before bankruptcy so that it did not pass to the trustee.

By the Court. — Judgment affirmed.

        Johnson v. Vickers (1909), 139 Wis. 145, 120 N. W. 837; Estate of White (1936), 223 Wis. 270, 277, 270 N. W. 34.

       6 C. J. S., Assignments, p. 1198, sec. 139(b) (2); Citizens Nat. Bank v. Rowley (1936), 131 Neb. 10, 267 N. W. 151.

       6 C. J. S., Assignments, p. 1201, sec. 140 (b) (1).


source: Caselaw Access Project

author: Hallows, J.

license: Public Domain

text:
    Firkus, Plaintiff, v. Rombalski and another, Defendants and Respondents: Town of Hull, Impleaded defendant and Appellant. [Case No. 47.] Sheridan, Plaintiff, v. Home Mutual Insurance Company, Defendant and Respondent: Firkus and another, Defendants, Respondents, and Cross Appellants: Rombalski, Impleaded Defendant and Respondent: Town of Hull, Impleaded Defendant and Appellant. [Case No. 48.]

      October 1

    October 27, 1964.

      For the appellant there was a brief by Atwell & Atwell and James H. Van Wagenen, all of Stevens Point, and oral argument by Mr. William E. Atwell, Jr., and Mr. Van Wagenen.

    For the respondents Peter F. Rombalski and the Home Mutual Insurance Company there were briefs by Byrne, Bubols, Spanagel & Pfankuch of Appleton, and oral argument by Edward Byrne.

    For the respondents and cross appellants Joseph J. Firkus and the Farmers Mutual Automobile Insurance Company there were briefs by Peickert, Anderson, Fisher, Shannon & O’Brien of Stevens Point, and oral argument by John E. Shannon, Jr.

   Hallows, J.

Rombalski in driving his car north on Dobeck road was proceeding, according to his testimony, about 50 miles an hour -and according to .Sheridan’s testimony about 70 miles per hour. Rombalski testified he did not know he was approaching an intersection until he was 25 feet from it. There was no stop sign on Dobeck road and he did not reduce his speed in entering the intersection. He first saw the Firkus car when he was 10 to 15 feet from the intersection and when the Firkus car was a few feet from entering the intersection. Sheridan testified he saw the intersection when it was about 500 feet distant. When Rom-balski and he were about 100 feet south of the intersection he saw the Firkus car about 50 feet west of the intersection. All Rombalski did when he saw Firkus was to take his foot from the accelerator and tap the brake.

Firkus testified that as he approached the intersection from the west he was traveling about 40 to 45 miles per hour and did not reduce his speed in entering the intersection. The first time he saw Rombalski’s car was when it was 80 feet south of the intersection and he was about -20 feet west of the intersection. As he entered the intersection he stepped on the gas and speeded up to get out of Rombalski’s way. The Rombalski car struck the Firkus car approximately in the center of its right side.

It is undisputed the area southwest of the intersection was heavily wooded with pine trees which obscured the vision of each driver. Sometime in 1957 or 1958, the town board of the town of Hull decided to erect stop signs on the Dobeck road where it intersects with Jordan road, thereby giving preference to traffic on Jordan road. In March or April of 1962, the sign to the south of Jordan , road was removed by vandals, but the record does not show the board chairman of the town had actual knowledge of this fact prior to August 7, 1962. New signs were ordered on August 8 but had not arrived and the missing sign had not been replaced at the time of the accident. Firkus testified he believed the sign was still there while Rombalski stated he did not notice the post nor did he realize a sign had ever been there.

The town of Hull contends the trial court erred in denying its motion to dismiss the cross complaints against it. It is argued Jordan road is not a duly established arterial or through highway because sec. 349.07 (3) and (4), Stats., requires a local authority to declare a highway or portion thereof a through highway by ordinance or resolution and such ordinance or resolution is not effective until official stop signs or traffic control signals have been installed. The record discloses no ordinance or resolution, formal or informal, declaring Jordan road to be a through highway. However, the town board did approve an oral motion to erect stop signs under sec. 349.08 (5), which permits towns to put up additional stop signs on a roadway at its discretion.

The town of Hull contends this section authorizes it not only to place additional stop signs on roadways but also to remove such signs whenever it thinks they are no longer necessary. Assuming this is true the signs were not removed by the town because they were no longer considered necessary but by vandals. No statute or decision in Wisconsin up to now has held it to be a duty of a town to maintain stop signs once they have been erected under sec. 349.08 (5), Stats. This duty is asserted not as a statutory duty to repair defects in highways but as a common-law duty actionable since governmental immunity was abolished by Holytz v. Milwaukee (1962), 17 Wis. (2d) 26, 115 N. W. (2d) 618.

The trial court was of the view that, “Having effectively and practically established Jordan Road an arterial highway at the Dobeck Road intersection by having the official stop signs in position for over five years, the Town of Hull was charged with the duty of maintaining the stop signs so as to avoid a trap for motorists.” The town had no affirmative duty to erect the sign in the first instance, but having done so it was incumbent upon it to properly maintain the sign as a safety precaution to the traveling public which has the right to rely on its presence. See Van de Walker v. State (1938), 278 N. Y. 454, 17 N. E. (2d) 128; Nuss v. State (1950), 301 N. Y. 768, 95 N. E. (2d) 822; and the dissent of Mr. Chief Justice Desmond in Weiss v. Buffalo (1960), 7 N. Y. (2d) 579, 167 N. E. (2d) 63. This duty is analogous to the liability of railroads for failure to have flagmen stationed at crossings where they ordinarily were present. Bluhm v. Byram (1927), 193 Wis. 346, 214 N. W. 364; Burns v. North Chicago Rolling Mill Co. (1886), 65 Wis. 312, 27 N. W. 43. The town may remove the stop sign if it provides fair warning to the public of the removal. See Martinson v. Polk County (1938), 227 Wis. 444, 279 N. W. 60; Bills v. Kaukauna (1896), 94 Wis. 310, 68 N. W. 992.

The potentiality of a dangerous situation is greatly increased by the failure to maintain warnings upon which the public has come to rely. It is the creation of the right of reliance and its protection which is the basis of the duty. This is not unlike the doctrine of equitable estoppel in the field of contracts. We find no error in the trial court’s refusing to dismiss the cross complaints on the ground the town of Hull was not negligent as a matter of law.

Instead of submitting the question of negligence of the town of Hull to the jury the trial court found negligence as a matter of law. This is claimed to be error. Since the town of Hull had the duty to maintain the stop sign once it undertook to erect it, its failure to replace it would be negligence as a matter of law if the town had sufficient notice to remedy the situation. On August 7th the town had actual knowledge the stop sign was missing and nineteen days elapsed to the date of the accident. This time was sufficient to constitute an unreasonable delay in replacing the sign or in taking other precautions by warning or temporary signs to inform the traveling public of the danger. We find no error in the trial court finding the town of Hull negligent as a matter of law.

It is also contended the court erred in refusing to change the answer in the verdict finding the negligence of the town of Hull causal. It is argued the court’s answering the negligence question unduly influenced the jury in its consideration of the causality of such negligence and the finding was based on speculation. The record does not show the jury was influenced by the court’s finding. The court properly instructed the jury that its answering the negligence question should have no bearing whatsoever on what the answer should be to the other questions. The same contention has been made in other cases where this court has pointed out the problem. Field v. Vinograd (1960), 10 Wis. (2d) 500, 103 N. W. (2d) 671; Niedbalski v. Cuchna (1961), 13 Wis. (2d) 308, 108 N. W. (2d) 576. Whether the jury was unduly influenced in determining the apportionment of the negligence will be discussed later.

The town of Hull argues in view of the speed of the respective cars and other circumstances including the trees southwest of the intersection the accident was inevitable and the fact the stop sign was missing could not be causal. The difficulty with this argument is it disregards the probability that the speed at least of the Rombalski car would have been substantially reduced or the car would have been stopped if the sign had been present. Likewise if no stop sign had been placed there and maintained for about five years, no reliance could have been placed thereon by Firkus. In Schmit v. Jansen (1945), 247 Wis. 648, 20 N. W. (2d) 542, a turned stop sign for an arterial was said to “set the stage for the collision” and both drivers while exercising care and relying on his right-of-way were held not to be negligent. We think the town’s negligence was a substantial factor in causing the accident.

On his cross appeal Firkus argues he was not negligent in any respect. This argument proceeds on the view he was driving 40 to 45 miles per hour on an arterial and he looked to his right when approaching the intersection as soon as he could see past the trees. While the evidence will bear this version, it is the most favorable to Firkus. On appeal this court must look for evidence which under its most favorable and reasonable view will sustain the verdict. Bleyer v. Gross (1963), 19 Wis. (2d) 305, 120 N. W. (2d) 156.

Firkus was not traveling on a through highway and therefore the rules governing driving on arterials, now referred to as through highways in the statutes, are not applicable. Fir-kus was familiar with the intersection, having formerly lived near it. He testified he could not remember if the stop sign on the southeast corner was up or down in May, a few months before the accident, but he did remember it was there in February. It was possible for Firkus to have seen the post with the sign missing as he approached the intersection. The jury could have concluded Firkus could not rely on the sign being up either because of the lack of positive evidence that he knew the sign was there or that he should have known the sign was not there. From James Sheridan’s testimony the jury could reasonably conclude Firkus should have looked sooner than he did and if he had looked he would have seen Rombalski. At 45 miles per hour the jury could have concluded Firkus’ speed was excessive because he did not reduce such speed in approaching the blind intersection. Sec. 346.57 (3), Stats. Firkus had the benefit of the emergency instruction but the jury could well have denied Firkus the benefit of the doctrine on the ground his negligence contributed to the emergency.

Although we are of the opinion Firkus and the town of Hull were causally negligent along with Rombalski it does not follow the apportionment of negligence was such that it ought not be disturbed on appeal. We have said many times the apportionment of negligence is for the jury and will not be upset excepting in unusual cases. Mullen v. Reischl (1960), 10 Wis. (2d) 297, 103 N. W. (2d) 49; Mans v. Cook (1961), 15 Wis. (2d) 203, 112 N. W. (2d) 589. Such cases are generally those in which this court can find as a matter of law the plaintiff’s negligence equaled or exceeded that of the defendant. See Kornetzke v. Calumet County (1959), 8 Wis. (2d) 363, 99 N. W. (2d) 125. We cannot in this case determine the apportionment as a matter of law, but we do have considerable difficulty with the relative proportion of negligence apportioned to the parties by the jury. Rombalski’s negligence is so disproportionate to Firkus’ in any view of the facts as not to be fairly reflected by ascribing only 5 percent more negligence to Rombalski. Neither are we satisfied the jury was not influenced in apportioning 35 percent of the negligence to the town of Hull because of the trial court’s determination as a matter of law that the town of Hull was negligent. On motions after verdict the trial court was of the opinion the apportionment was greatly out of line with what he would have determined if such determination were his function. While no one element may be sufficient for a reversal, we think viewing the case as a whole there was a probable miscarriage of justice in the apportionment of the causal negligence. Such is a proper basis for the exercise of our discretionary power under sec. 251.09, Stats. Chapnitsky v. McClone (1963), 20 Wis. (2d) 453, 467, 122 N. W. (2d) 400; Mack Trucks, Inc., v. Sunde (1963), 19 Wis. (2d) 129, 138, 119 N.W. (2d) 321.

We hold, therefore, there should be a new trial on the issue of the apportionment of causal negligence. The finding of causal negligence on the part of Firkus, Rombalski, and the town of Hull will stand and the evidence on that issue may be introduced for the purpose of determining the apportionment thereof. This, of course, in no way affects the two plaintiffs who have settled their actions but the apportionment does have a direct effect upon the liabilities for contribution between the drivers and their insurers and the town of Hull.

In view of the new trial it may not be necessary to answer the last argument of the town of Hull but we believe it advisable to do so. When the settlement with Firkus was made and the cases continued on the cross complaints to determine contribution under the doctrine of Bielski v. Schulze (1962), 16 Wis. (2d) 1, 114 N. W. (2d) 105, the town of Hull did not agree to the settlement or approve it as a fair amount, nor did it create an issue of reasonableness. The trial court, however, approved the amount of the settlement as reasonable. Since the jury found the town 35 percent negligent it argues it is only liable for 35 percent of the settlement amount of $15,000 and not 50 percent or equally with Rombalski who was also found 35 percent negligent.

The settlement was in complete satisfaction of the total claim and included a release not only of Rombalski and his insurer but also of the town of Hull. The question is whether the $15,000 represents the amount of Firkus’ damages, as a verdict would, or whether it represents the amount of recovery, as the judgment would when plaintiff is found contributorially negligent. Realistically and equitably a settlement discounts the probable contributory negligence of the claimant from the probable liability of the settlor. In contemplation of the parties to the settlement the sum agreed upon represents the net recovery on the part of the plaintiff whatever his negligence, if any, is ultimately found to be. This view is consistent with a settlement with reservation of rights where the settlement is made in terms of percentage of negligence to be or which may be determined by litigation. Pierringer v. Hoger (1963), 21 Wis. (2d) 182, 124 N. W. (2d) 106. The amount of the instant settlement should be viewed as a net recovery by Firkus and on the apportionment found equal to 70 percent of his damages and the town of Hull would have been liable to contribute 35/70ths or one half of the amount. The same principle should apply to the apportionment of negligence in the new trial.

By the Court. — The judgments are reversed, and a new trial granted on the issue of apportionment of negligence only. The town of Hull is to have costs on appeal.

        Field v. Vinograd, supra; Niedbalski v. Cuchna, supra.


author: Gordon, J.

text:
    Le Mense, Special Administratrix, Plaintiff and Appellant, v. Thiel, Defendant: Employers Mutual Liability Insurance Company, Defendant and Respondent.

      October 1

    October 27, 1964.

      For the appellant there were briefs by Kaftan, Kaftan & Kaftan of Green Bay, and oral argument by Fred F. Kaftan.

    For the respondent there was a brief by Clark, Rankin, Nash & Spindler of Manitowoc, and oral argument by John M. Spindler.

   Gordon, J.

The issue in this case relates to the following words affecting coverage under an automobile insurance policy: “furnished for the regular use . . . .” On a motion for summary judgment, the trial court dismissed the complaint against the insurer, having concluded that the automobile in question was in fact furnished for the regular use of the driver, Mr. Thiel.

There are three strings to the appellant’s bow. She contends that the evidence demonstrates that the car was not “furnished” to Mr. Thiel. Secondly, she argues that at the time of the accident Mr. Thiel’s use of the car was not “regular use,” as that expression is used in the policy. Thirdly, she urges that a California case is factually similar to the instant case and should be given great weight by this court. Pacific Automobile Ins. Co. v. Lewis (1943), 56 Cal. App. (2d) 597, 132 Pac. (2d) 846.

The contention that the automobile was not “furnished” to Mr. Thiel is not persuasive. Our examination of the record convinces us that it was contemplated that Mr. Thiel would use this car for his transportation to Mr. Mathys’ wedding and that he would use it thereafter for a fishing trip. While Mr. Mathys may have desired to have the car in his wedding parade, and while it was Mr. Mathys who presented the matter to the owner, there is no hint that anybody but Mr. Thiel was to drive the car or have control of it. The contention that the car was not “furnished” to Mr. Thiel is simply untenable.

The meaning of the words “regular use” in an automobile insurance policy such as is involved here is one that has frequently been before the courts. Obviously, each case which arises under this clause must turn on its own peculiar facts. On each end of the spectrum are the easy cases. If the use of the auto is sporadic and rigidly restricted, there is coverage under the policy. At the other end of the spectrum are those cases in which the use is unqualified and continuous; in these cases the denial of coverage is obvious. The doubtful cases are those in the middle. In our opinion, the instant case polarizes toward that end of the spectrum where the use of the auto is unlimited and regular.

Mr. Keune was in the used-car business. Mr. Thiel stated that he “could drive anything that was available there.” There was always one of Mr. Keune’s automobiles available to him. He was not only free to use one of his employer’s cars for business, but also he was free to take one of the cars home at night. The Chrysler car in question was used by Mr. Thiel 80 percent of the time. He kept it in the garage at his house for lengthy periods. Mr. Thiel did not own a car himself and did not frequently use his grandfather’s car.

Mr. Thiel was not specifically required to ask permission to use one of Mr. Keune’s cars. However, the appellant argues that Mr. Thiel did in fact seek permission for the trip in question. When Mr. Mathys proposed taking the car to the wedding, Mr. Thiel told him that “he would have to talk to Carl [Keune] to use it for that.” We believe that this refers to the use of this Chrysler convertible in the wedding parade rather than the use of the car as transportation for Mr. Thiel to the place of the wedding.

The appellant stresses the contention that Mr. Thiel’s right to the regular use of one of the cars was confined to the Manitowoc area. We conclude that there is no valid basis for drawing the line at the county limits. When asked to describe his understanding regarding personal use of a car outside the county, Mr. Thiel responded :

“I wouldn’t have to ask, I don’t believe, but I believe I would say something to him that I was going or something so he knew.”

Mr. Thiel also stated that Mr. Keune had never requested that Mr. Thiel should obtain permission before taking the car out of town for pleasure. In our opinion, the fact that Mr. Thiel may have felt it desirable to “say something” when he took one of Mr. Keune’s cars outside the county does not warrant the conclusion that a use outside the county would be other than regular in light of all the other circumstances of this case.

Pacific Automobile Ins. Co. v. Lewis (1943), 56 Cal. App. (2d) 597, 132 Pac. (2d) 846, lends support for the appellant’s position. The employee in that case was a used-car salesman in San Diego. He and the other employees were given the use of three automobiles which had been set aside as demonstration models. He drove the cars during the daytime; about six nights a month he had their use for personal matters. The employees had to speak up when they wanted to use the cars, since there were more employees than there were automobiles available. The agency did not encourage the personal use of cars but permitted it. The employee involved in that case testified that he never previously had taken an automobile outside the San Diego vicinity. The accident occurred when he drove to Pomona for personal reasons, having told his employer where he was going. On these facts, the lower court found that the car was not furnished for “regular use,” and this was affirmed on appeal.

The closeness of the facts between the California case and the case at bar is apparent. We do not, however, deem it appropriate to apply the California court’s conclusion to the case at bar. The facts resemble one another, but they are not squarely alike. For example, Mr. Thiel had far greater freedom of use of his employer’s automobiles than did the employee in the California case. There was much broader availability of the automobiles and much greater frequency of use by Mr. Thiel than was involved in the California case. In our opinion, Mr. Thiel’s use of the car was practically unlimited; this is true even though Mr. Thiel may have felt it advisable as a matter of consideration to let his employer know when he was taking the car outside the county.

The availability of the car and the frequency of its use were far more restricted in the California case. In addition, we observe that the appellate court in California suggested that it felt foreclosed by the trial court’s construction. At page 601, the California court said:

“A question of fact is presented which calls for an interpretation of the language of the policies relating to the facts involved. That language may be reasonably interpreted as intending to provide for a regular use at the time and place in question, and not for such an exceptional and single use by special permission as here appears. The court having adopted this construction, and this being a reasonable one, it cannot be overthrown even if it should appear that another construction would have been equally tenable.”

In Aler v. Travelers Indemnity Co. (D. C. Md. 1950), 92 Fed. Supp. 620, 623, the court discussed the general purposes of this type of clause in an automobile insurance policy and stated that it is designed:

“. . . to give coverage to the insured while engaged in the only infrequent or merely casual use of an automobile other than the one described in the policy, but not to cover him against personal liability with respect to his use of another automobile which he frequently uses or has the opportunity to do so.”

We have already indicated that each case involving regular use will turn on the peculiar facts of such case. Therefore, we will not attempt to analyze or apply the following cases which have also explored the meaning of “regular use Whaley v. Great American Ins. Co. (1963), 259 N. C. 545, 131 S. E. (2d) 491; Palmer v. Glens Falls Ins. Co. (1961), 58 Wash. (2d) 88, 360 Pac. (2d) 742; Throckmorton v. Le Blanc (La. App. 1961), 131 So. (2d) 231; Embody v. Le Blanc (La. App. 1961), 131 So. (2d) 225; Sperling v. Great American Indemnity Co. (1960), 7 N. Y. (2d) 442, 199 N. Y. Supp. (2d) 465, 166 N. E. (2d) 482; Home Ins. Co. v. Kennedy (1959), 52 Del. 42, 152 Atl. (2d) 115; Iowa Mut. Ins. Co. v. Addy (1955), 132 Colo. 202, 286 Pac. (2d) 622; Farm Bureau Mut. Automobile Ins. Co. v. Marr (D. C. N. J. 1955), 128 Fed. Supp. 67.

In our opinion, the trial court correctly concluded that Mr. Thiel had been furnished the instant car for his regular use.

By the Court. — Judgment affirmed.


author: Wilkie, J.

text:
    State ex rel. Dietrich, Respondent, v. Miller and others, Civil Service Commission of City of West Allis, Appellants.

      October 1

    October 27, 1964.

      For the appellants'there was a brief by William T. Schmid, city attorney, and Frederick A. Miller, assistant city attorney, and oral argument by Mr. Miller.

    For the respondent there was a brief and oral argument by Clyde E. Sheets of Milwaukee.
   Wilkie, J.

The single issue that is determinative of this appeal is whether the trial court erred in setting aside the Civil Service Commission’s findings.

The Civil Service Commission found:

“2. That since 1955 the assessor of the city of West Allis has made changes in the duties and organization of that office, including (1) the completion of new land maps for the entire city, (2) a key-numbering system for all parcels of real estate, (3) the correlation of all assessment data with the tax roll utilizing IBM equipment, and (4) the completion of all special projects and studies.
“3. That these aforesaid measures resulted in material changes in the duties and organization of the office of the city assessor, so that the total work load of the office could be efficiently administered without the services of a junior assistant assessor.”

The commission concluded (1) that the layoff was made because of these “material changes in the duties and organization of the office,” (2) that “the city assessor acted in good faith in effecting the layoff,” and (3) that Dietrich’s seniority rights had not been violated.

The trial court reviewed the record and concluded (1) that the commission’s ruling was “arbitrary and unreasonable,” (2) that the credible evidence showed that Dietrich was not discharged for the purpose alleged in the findings, (3) that the discharge was a “sham and a subterfuge intended to evade the tenure of office and civil service laws,” and (4) that the evidence did not support the commission’s findings that Dietrich’s seniority rights had not been violated and that the assessor acted in good faith.

Dietrich’s rights and the proper administrative procedure for reviewing the layoff action are controlled by the provisions of the 1938 West Allis Code, because the layoff action was taken on September 12th before the new West Allis Code took effect. In any event, both ordinances contained an identical provision permitting a layoff on the grounds found by the commission. Specifically, sec. 14.06 (9) of the 1938 Code provided:

“(9) Whenever a reduction of employees is made necessary because of a shortage of funds or a material change in duties or organization, employees shall be laid off in inverse order to earned seniority in the class of position in the department affected, and thereafter on the basis of the inverse order of total seniority in excess of an employee with greater class position seniority, he shall be entitled to a position in the next lower class of position in which he last previously served. . . .”

In reviewing the action of an administrative board by cer-tiorari, the court will only determine:

“(1) Whether the board kept within its jurisdiction, (2) whether it acted according to law, (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment, and (4) whether the evidence was such that it might reasonably make the order or determination in question.”

The evidence taken by the commission shows that there were substantial changes made in the procedures and duties in the assessor’s office: Land maps had been prepared, a key-numbering system established, an IBM system installed to co-ordinate the maps and key numbers, and all special projects had been completed. The evidence also showed that the city assessor was no longer participating in national assessing associations, which had kept him away from the office, and he would now be able to devote full time to his job in West Allis. The trial court found that the ruling was arbitrary and unreasonable and that it was not according to law because of a lack of “fair play.”

Respondent claims that the trial court’s conclusion that the discharge was unreasonable and not for the reasons given was supported by evidence showing that an assistant assessor was hired in May of 1962. Dietrich was given a chance to fill this position (a higher-grade position), but finished last in the examination given to job applicants. A city can hardly be condemned for attempting to staff qualified people. The hiring of one man almost contemporaneously with the discharge of another does not indicate a sham when the latter was given the opportunity to obtain the new and different job.

“Fair play” was supposedly lacking because Dietrich had ten years’ tenure and was too old to get a job elsewhere. It is true that Dietrich had been employed by the city for ten years and it may well be true that at forty-six obtaining other employment would be difficult. But these factors are hardly enough to deem the commission’s action repugnant to ideals of “fair play.” There is absolutely no affirmative evidence indicating any lack of fair play.

Respondent also contends that as the position of junior assistant assessor was established by the city ordinance, only the city council may eliminate it. But the job was not abolished; the commission merely deemed it economically unsound to retain the employee filling the position. Someone could be hired for the position at a later date if the workload so demanded.

There is ample evidence to sustain Dietrich’s layoff for the reasons given by the commission. A finding that Dietrich could not be laid off under the ordinance, even when the work load had been reduced by a reorganization of the assessing office and by more efficient procedures, and when it became plain to the assessor that it was no longer economically feasible to retain him, is tantamount to saying that municipalities cannot try to economize by eliminating civil-service employees whose work load has vanished, and this could have the effect of giving every employee lifetime tenure in his particular job. Such a state of affairs would be preposterous.

The trial court erred in setting aside the commission’s findings.

By the Court. — Judgment reversed.

        State ex rel. Wasilewski v. Board of School Directors (1961), 14 Wis. (2d) 243, 255, 111 N. W. (2d) 198.

       Relying on State ex rel. Ball v. McPhee (1959), 6 Wis. (2d) 190, 94 N. W. (2d) 711, which held that the phrase “according to law” meant, among other things, fair play.


author: Beilfuss, J.

text:
    Haislmaier, Appellant, v. Zache and another, Respondents.

      October 1

    October 27, 1964.

      For the appellant there were briefs and oral argument by Bernard C. Westfahl of Milwaukee.
    For the respondents there was a brief by Wickham, Borgelt, Skogstad & Powell, attorneys, and Roger S. Bes-sey of counsel, all of Milwaukee, and oral argument by Mr. Bessey.

   Beilfuss, J.

The determinative issue is whether time is of the essence of the contract.

In Rottman v. Endejan (1959), 6 Wis. (2d) 221, 225, 226, 94 N. W. (2d) 596, a case dealing with a contract for the purchase of land, the court stated-:

“The law is well settled that time will not be regarded as of the essence unless it is made so by the terms of the contract or the conduct of the parties. Long Investment Co. v. O’Donnell (1958), 3 Wis. (2d) 291, 297, 88 N. W. (2d) 674, and Zuelke v. Gergo (1951), 258 Wis. 267, 271, 45 N. W. (2d) 690.
. . This court in Buntrock v. Hoffman (1922), 178 Wis. 5, 13, 189 N. W. 572, held that ‘time will not be regarded as of the essence of the contract merely because a definite time for performance is stated therein, without any further provision as to the effect of nonperformance at the time stated.’ ”

The defendant purchasers claim the contract was breached by plaintiff seller because he had not furnished an abstract at least fifteen days before the date set for closing.

The pertinent contract provisions are:

“. . . the transaction is to be closed ... on or before 9/1, 1961, or at such other time and place as may be designated in writing by the parties hereto. . . .
“The Seller shall furnish and deliver to the buyer for examination at least fifteen (15) days prior to the date set for closing, his choice of either:
“1. A complete abstract of title, made by an abstract company, extended to within twenty (20) days of the closing, said abstract to show the Seller’s title to be marketable and in the condition called for by this agreement. The Buyer shall notify the Seller in writing of any valid objection to the title within ten (10) days after the receipt of said abstract and the Seller shall then have a reasonable time, but not exceeding ninety (90) days, within which to rectify the title (or furnish a title policy as hereinafter provided) and in such case the time of closing shall be accordingly extended: or
“2. An owner’s policy of title insurance. . . .”
The default provisions are:
“Should the undersigned Buyer fail to carry out this agreement, all money paid hereunder shall, at the option of the Seller, be forfeited as liquidated damages, and shall be paid to or retained by the Seller, subject to deductions of broker’s commission and disbursements, if any.
“Should the Seller be unable to carry out this agreement by reason of a valid or legal defect in title which the Buyer is unwilling to waive, all money paid hereunder shall be returned to the Buyer, and this contract shall be void.”

The closing date was on or before September 1, 1961, or at such other time as the parties agreed upon. The abstract could not have been delivered before August 10th because of the provision that it must be continued to within twenty days of the closing. It was continued to August 18th— twelve days before the closing. The abstract was to have been delivered fifteen days before September 1st. It was delivered on August 25th and receipt acknowledged August 28th. The contract further provided that the buyer had ten days to raise objection to the title and the seller had an additional ninety days to rectify the title.

The default provisions contain no time limitations insofar as the seller’s obligations are concerned. The default entitling the buyers to rescission would have to be a valid defect in the title. There is no claim of defect in the title. Clearly, time is not of the essence under the terms of the contract.

The defendant buyers contend that the conduct of the parties was such that time did become of the essence.

It appears without dispute that the defendants, Mr. and Mrs. Zache, wanted to purchase a larger home and had talked to the salesman, Peters, on several occasions about various houses before the plaintiff’s property was considered. Peters knew the plaintiffs property was for sale and asked the plaintiff if he could show it and negotiate a sale. The plaintiff informed him he could and agreed to pay Barrett Realty Company, Peters’ employer, $780 (two and one-half percent of the sale price) upon closing. Peters did all the negotiating with the Zaches and prepared the offer to purchase which the plaintiff accepted on July 18th.

To finance the purchase it was necessary for the Zaches to sell their home and to obtain a mortgage loan. Peters, without knowledge or participation by the plaintiff, obtained a listing agreement to sell Zaches’ home at a list price of $22,900. The Zaches were able to obtain a mortgage loan conditioned upon a merchantable title to plaintiff’s property. The loaning agency advised the Zaches that it would need two weeks to examine the abstract of title to complete the loan. Mr. Zache notified Peters of these negotiations but it does not appear that either Zache or Peters informed the plaintiff. As set forth in the statement of facts, late in July Mr. Zache asked Peters to obtain an extension of time on the closing transactions for plaintiff’s property because the Zaches had not as yet received an offer to purchase. Mr. Zache claimed and Peters denied that Peters stated that could not be done without penalty. The Zaches did enter a contract for sale of their home on August 18th, with possession to be given September 1st, and later extended to September 15th.

On or about August 20th the Zaches requested permission to enter the property of the plaintiff to carpet the floors. Plaintiff gave permission. This request was five days after the date set forth in the contract for the delivery of the abstract.

The Zaches argue that they had to give up possession of their home on September 1st, that the loaning agency needed two weeks to pass upon the title of plaintiff’s property and that these factors made time of the essence and nondelivery of the abstract a breach of the contract entitling them to cancellation. Again it does not appear that either the Zaches or Peters notified the plaintiff of these time elements or an intention to cancel the contract until August 23d.

Where the contract does not expressly provide that time is of the essence notice fixing a reasonable time for performance must be given.

“A course of action lay open to the purchasers whereby they could have reasonably protected themselves against the contingency of being unable to secure possession by July 1st. This was to have given the vendors notice early in May fixing July 1st as the last date for closing and effecting change of possession, and stating that they would consider the contract rescinded if the sellers failed to perform by such date. None of the letters written by counsel for the purchasers is susceptible of being construed as such a notice. Because the purchasers failed to give any notice fixing a reasonable time for performance subsequent to May 1, 1957, the contract never terminated. Peyer v. Jacobs (1957), 275 Wis. 364, 367, 82 N. W. (2d) 202, and Phillips v. Carver (1898), 99 Wis. 561, 575, 75 N. W. 432. If such a notice had been given, the sellers might have been spurred into such action as paying the tenant a sum to vacate, or using the notice as a ground for the circuit court taking more-prompt action to decide the unlawful-detainer appeal and issue the writ of restitution.” Rottman v. Endejan, supra, page 227.

Applying this quotation to the facts herein, the Zaches were required to give the plaintiff notice fixing a reasonable time. Because of their failure to do so the contract did not terminate.

It is urged that Peters was the agent of the plaintiff and that notice to Peters was notice to the plaintiff. Under the facts of this case as to the crucial negotiations, Peters was the agent of the Zaches and not of the plaintiff. Peters knew the Zaches wanted to purchase a home and discussed it with them on several occasions before the plaintiff was ever contacted. The plaintiff did not seek out Peters nor the defendants Zaches. Peters contacted the plaintiff on behalf of the Zaches. The plaintiff had no part of nor even knowledge of the contract between the Zaches. and Peters for the sale of their home. All of the terms, negotiations, and time elements of the sale of the Zache home were negotiated by the Zaches, Peters, and the purchaser. Under these facts the plaintiff cannot be bound by the knowledge of Peters.

Resolving all of the testimony conflicts in favor of the defendants Zaches, we conclude there is not sufficient credible evidence in the record nor reasonable inference therefrom to warrant a jury finding that the conduct of the parties made time of the essence of the contract or that the contract was breached by the plaintiff seller.

The plaintiff was ready, willing, and able to perform the contract within a reasonable time. The Zaches breached the contract by refusing to carry it out.

By the Court. — Judgment reversed, and cause remanded with directions to enter judgment for the plaintiff upon the promissory note of July 18, 1961.


author: Heffernan, J.

text:
    Bailey and another, Respondents, v. Hagen and another, Appellants.

      October 1

    October 27, 1964.

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

    For the respondents there was a brief by Phillips & Richards, attorneys, and Antaramian & Antdramian of counsel, all of Kenosha, and oral argument by David L. Phillips.

   Heffernan, J.

We have no hesitancy in affirming the trial judge in his action setting aside the jury’s verdict in finding the defendant negligent as to speed as a matter of law.

The court below instructed the jury that it was for it to determine whether Hagen had exercised ordinary care to so regulate his speed as was reasonably necessary to avoid collision with any object on the highway. The jury was also instructed that in the event the driver of the vehicle was suddenly confronted by an emergency, he was subject to exoneration under the accepted emergency doctrine of Wisconsin. The trial judge on motions after verdict concluded that the defendant should be found negligent with respect to speed as a matter of law, and therefore set aside the jury’s finding of no negligence.

It is the contention of the appellants herein that the law to be applied in this case is the law of Illinois and that the law of Illinois, unlike that of Wisconsin, makes the question of speed in these circumstances a matter to be decided by the jury.

The appellant takes the position, with which the Restatement, Conflict of Laws, p. 457, sec. 378, is in accord, that the law of the place of injury governs the law of the case. Certainly this would normally be true in an automobile accident case involving the rules of the road. The defendant, however, has failed to properly bring before the court the applicable provisions of Illinois law. The Wisconsin statutes, sec. 328.01, are determinative of the method of bringing to the court’s attention the law of another state. Sec. 328.01 states:

“Judicial notice of foreign laws. (1) Courts Take Notice. Every court of this state shall take judicial notice of the common law and statutes of every state, territory and other jurisdiction of the United States.
“(2) Information of the Court. The court may inform itself of such laws in such manner as it may deem proper, and the court may call upon counsel to aid it in obtaining such information.
“(3) Determined by Court; Ruling Reviewable. The determination of such laws shall be made by the court and not by the jury, and shall be reviewable.
“(4) Evidence of Foreign Laws. Any party may also present to the trial court any admissible evidence of such laws, but, to enable a party to offer evidence of the law in another jurisdiction or to ask that judicial notice be taken thereof, reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.”

It is to be noted that the answer of the defendant made no allegation that the court should take notice of the Illinois law in this action, nor did the defendant by any formal motion or presentation make such a request of the court. The statute requires that “reasonable notice shall be given to the adverse parties either in the pleadings or otherwise.”

The first time that the applicability of Illinois law was brought to the attention of the court or adverse party appears to have been in defendant’s motion for nonsuit after the submission of the plaintiff’s case. The defendant again argued Illinois law in his argument on a motion for a directed verdict. Sec. 328.01, Stats., is a portion of a uniform law, and it is incumbent upon this court to give recognition to decisions in other jurisdictions interpreting this law. Sec. 328.01 (6). Other jurisdictions in which this matter has come before the court have made it plain that the interjection of foreign law merely in an oral argument or in the course of motions after the introduction of evidence is insufficient to compel the court to take judicial notice. It has been held that the action of a party giving notice to the court of foreign law has been insufficient in the following situations : Raising the issue in the reply brief (Boswell v. Rio De Oro Uranium Mines, Inc. (1961), 68 N. M. 457, 362 Pac. (2d) 991); merely referring to the foreign law in closing argument (Cliff v. Pinto (1948), 74 R. I. 369, 60 Atl. (2d) 704); and pleading the foreign law but offering no citations (Scott v. Scott (1951), 153 Neb. 906, 46 N. W. (2d) 627). See also 23 A. L. R. (2d) 1431.

Our Wisconsin courts can take judicial notice of the laws of another jurisdiction when such foreign law is pleaded. It is also apparent that foreign law by statute may be presented when there is reasonable notice “otherwise” of the applicability of foreign law. We need not decide what other situations might make it possible for the trial court to notice the law of another jurisdiction. It is clear, however, that in this jurisdiction the Illinois law was not properly brought to the attention of the court by referring to it for the first time in argument. Absent notice in the pleadings or reasonable notice in some other manner, Wisconsin courts must assume the law of the foreign state to be the same as ours. Any other rule would be prejudicial to a party prepared to try the case on the law of the forum and would place an undue burden on the trial court to ferret out the law of the numerous foreign jurisdictions. Under the facts of this case, the circuit court properly applied the law of Wisconsin.

We do not hesitate in affirming the learned trial judge in his conclusion that the rule of Lauson v. Fond du Lac (1909), 141 Wis. 57, 123 N. W. 629, is the rule of Wisconsin. It was most recently stated in Barker Barrel Co. v. Fisher (1960), 10 Wis. (2d) 197, 200, 102 N. W. (2d) 107:

“. . . there is negligence on the part of the driver of an automobile when he proceeds at a speed at which he cannot stop his vehicle within the distance he can see ahead . .

The case of Henthorn v. M. G. C. Corp. (1957), 1 Wis. (2d) 180, 83 N. W. (2d) 759, is in point in this case. In the Henthorn Case there was poor visibility because of the fog and darkness of night. In the instant case there was poor visibility because of a driving snowstorm. In each case the pavement was slippery and the driver was aware of the conditions. In the case now before the court, the poor visibility and snowy conditions of the road were factors in his inability to avoid the collision. The rule of the Henthorn Case is applicable herein:

“We have no hesitancy in holding that the additional circumstances of a slippery pavement and, extremely heavy load made it incumbent upon Henthorn to travel at such a speed that he could stop within the distance he could see ahead.” (Supra, p. 188.).

As Justice Brown stated in Barker Barrel Co. v. Fisher, supra, at page 201:

“We consider that this rule is not only one of long standing but that it is a good rule and one to be followed.”

We agree with the trial judge’s decision that the defendant was negligent as to speed as a matter of law.

The defendant has urged also that the lower court erred in failing to either submit to the jury as an issue of fact a joint enterprise between the respondent Bailey and the host-driver Brnak or in determining as a matter of law that the negligence of Brnak was imputed to her.

We do not agree. Much of his contention is based upon Illinois law. We conclude for the same reasons as stated above that Ilinois law was not presented to the court in the pleadings, nor was reasonable notice otherwise given, and therefore is not applicable. Nor was the question of joint venture as between the host-driver Brnak and Bailey ever before the court as an issue. The host-driver Brnak was not a party to the lawsuit, although he was a Wisconsin resident and amenable to the process of this court. The question of joint venture is therefore irrelevant in this situation where Brnak is not a party to the lawsuit and his negligence has not been raised. Furthermore, the defendant does not assert joint enterprise, and it is clear that joint enterprise is an affirmative defense to be pleaded and proved by the party asserting it. Lewis v. Leiterman (1958), 4 Wis. (2d) 592, 91 N. W. (2d) 89. It was not pleaded in this case. We might say also in passing that there is no proof of the essentials of a joint enterprise: An agreement among the parties to share profits and losses or the joint control and right to control the operation involved in the enterprise jointly undertaken. The mere fact that there was some reimbursement of Brnak for his expenses and a joint interest in the object and purpose of the trip, to wit, a journey to the place of common employment is hardly sufficient to establish a joint enterprise.

By the Court. — Judgment affirmed.


author: Currie, C. J.

text:
    State, Respondent, v. Klein, Appellant. Same, Respondent, v. Sterger, Appellant.

      October 2

    October 27, 1964.

      For the appellants there was a brief by Dominic H. Frinzi and Nicholas C. Catania, attorneys, and James M. Shellow and Shellow & Shellow of counsel, all of Milwaukee, and oral argument by Mr. James M. Shellow and Mr. Dominic H. Frinzi.

    For the respondent the cause was argued by Hugh R. O’Connell, first assistant district attorney of Milwaukee county, and William A. Plats, assistant attorney general, with whom on the brief were George Thompson, attorney general, and William J. McCauley, district attorney.
   Currie, C. J.

These issues are raised on this appeal:

(1) Were the arrests of defendants in Michigan prior to the issuance of any warrant in Wisconsin illegal thereby rendering illegal the search and seizure made incidental to such arrests ?

(2) Did the trial court commit prejudicial error in sustaining the state’s objection to questions put to a witness by defendants’ counsel which sought to ascertain when the witness first talked to the police about the case ?

(3) Did the trial court ground its finding as to the value of the stolen merchandise upon improper evidence?

Legality of the Arrests.

Inasmuch as the arrests complained of took place in Michigan the legality thereof is controlled by Michigan law. United States v. Di Re (1948), 332 U. S. 581, 589, 68 Sup. Ct. 222, 92 L. Ed. 210.

We find the controlling Michigan statute to be sec. 764.15, Mich. Comp. Laws (1948) (Mich. Stats. Anno. 28.874, sec. 15). The material portions of this statute provide:

“Any peace officer may, without a warrant, arrest a person—
“(e) When he has received positive information by written, telegraphic, teletypic, telephonic, radio or other authoritative source that another officer holds a warrant for such arrest;
“(f) When he has received such positive information broadcast from any recognised police or other governmental radio station, or teletype, as may afford him reasonable cause to believe that a felony has been committed and reasonable cause to believe that such person has committed it; . . . (Italics supplied.)

Sec. 764.15, when originally enacted in 1927, did not contain sub. (f) nor the above italicized words of sub. (e), but in 1935 the statute was amended to add these.

At common law, when a felony has been committed in one state, a peace officer of another state may validly arrest without a warrant a person suspected of having committed such felony if reasonable grounds exist for the officer’s belief that the arrested person is the one who committed the crime. People v. Euctice (1939), 371 Ill. 159, 20 N. E. (2d) 83; Burton v. New York C. & H. R. R. Co. (1911), 147 App. Div. 557, 132 N. Y. Supp. 628, affirmed without opinion (1912), 210 N. Y. 567, 104 N. E. 1127, and latter judgment affirmed (1917), 245 U. S. 315, 38 Sup. Ct. 108, 62 L. Ed. 314; State v. Taylor (1896), 70 Vt. 1, 39 Atl. 447; Williams v. Commonwealth (1925), 142 Va. 667, 128 S. E. 572; State v. Spangler (1938), 120 W. Va. 72, 197 S. E. 360; which overruled the earlier case of George v. Norfolk & Western R. (1916), 78 W. Va. 345, 88 S. E. 1036; Restatement, 1 Torts, p. 250, sec. 119, comment (<?) and p. 259, sec. 121 (a) ; 5 Am. Jur. (2d), Arrest, p. 739, sec. 47; Perkins, Law of Arrest, 25 Iowa Law Review (1940), 201, 243. Cunningham & Son v. Baker, Peterson & Co. (1893), 104 Ala. 160, 16 So. 68, sometimes cited as being contra, expressly found it unnecessary to decide whether an arrest without a warrant could be made of a fugitive wanted for crime in another state.

This common-law rule with respect to arrest without a warrant of a fugitive wanted for felony in another state imposes no more stringent requirements than if such fugitive were wanted for crime in another part of the same state in which the arrest is made. Restatement, 1 Torts, p. 250, sec. 119, comment (e). A special note is inserted to comment (e) explaining that the word “fugitive” as used in the text embraces persons who, for any purpose, have come into the state in which the arrest is made.

In Johnson v. Reddy (1955), 163 Ohio St. 347, 126 N. E. (2d) 911, the arrest without warrant in Ohio was made by police officers pursuant to teletype messages from Pennsylvania state police identifying suspect and advising that a felony had been committed in Pennsylvania and it was held that the arresting officers acted upon reasonable information. In its opinion the Ohio court stated (at p. 352) :

“And we believe that in making an arrest without a warrant at the request of another police agency all reasonable doubts concerning the reasonableness of the information on which the arresting officer acts should be resolved in his favor.”

There are no Michigan cases decided prior to the enactment of sec. 764.15, Mich. Comp. Laws (1948), which hold that the prevailing common-law rule with respect to arrest without a warrant of fugitives from another state did not prevail in Michigan. In the absence of such an express holding we assume that such common-law rule was recognized in that state. Malcolmson v. Scott (1885), 56 Mich. 459, 23 N. W. 166, held an arrest without warrant in Michigan of a fugitive from Pennsylvania illegal because the letter from Pennsylvania requesting the arrest was insufficient to provide probable cause. Absence of probable cause was shown by the facts that the letter which purported to come from one Girin, chief of police of Philadelphia, was signed “J. H.” in the name of Girin, and the letter failed to establish that a felony had been committed in Pennsylvania. The plain implication of this decision is that if Girin had personally signed the letter and had stated facts showing thát the wanted person was suspected of having committed a felony in Pennsylvania, the arrest would have been held valid, although it was also pointed out that no warrant had been issued in Pennsylvania for the fugitive.

In the later case of Kratzer v. Matthews (1926), 233 Mich. 452, 206 N. W. 982, a telegram from a captain of detectives to a Michigan sheriff, that the sender held a warrant for Kratzer’s arrest for making a false statement and requesting his arrest, was held to provide probable cause for Kratzer’s arrest in Michigan. We deem it wholly immaterial that, in distinguishing the Malcolmson Case, one of the distinguishing features was that the letter in the latter case did not state that a prosecution had been commenced or warrant issued. If Michigan prior to the enactment of sec. 764.15, Mich. Comp. Laws (1948) had a requirement that prosecution must have been started or a warrant issued before an arrest could be made without warrant, this statute eliminated that requirement.

Apparently the Michigan court has not construed sec. 764.15 (f), Mich. Comp. Laws (1948) with respect to whether or not the statutory words “from any recognized police or other governmental radio station, or teletype” is confined solely to those located in Michigan. Neither has it determined whether or not the further statutory words “reasonable cause to believe that a felony has been committed” refers only to felonies committed in Michigan.. Since preexisting common law drew no distinction between arrests without warrants of fugitives from other states and residents of the state, we conclude that no' implied restriction should be read into the statute which would prevent the statute’s application to fugitives from other states. We can conceive of no legislative purpose to restrict the common-law right to arrest without a warrant. It is a cardinal rule of statutory construction that rules of the common law . are not to be changed by doubtful implication. Leach v. Leach (1952), 261 Wis. 350, 357, 358, 52 N. W. (2d) 896, and authorities therein cited.

In Burton v. New York C. & H. R. R. Co., supra, the New York appellate division construed a New York statute which authorized a peace officer to arrest without warrant “when a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it” with respect to whether it was applicable where the felony had been committed in another state. The court declared (132 N. Y. Supp., at p. 633):

“Our statute does not require that the felony shall have been committed within this state, nor does the common law. The authority to arrest without a warrant is general in a peace officer ‘when a felony has in fact been committed, and he has reasonable cause for believing the person to be arrested to have committed it’ (section 177, Code of Criminal Procedure), and people coming within this state have no right to complain if they are treated in the same manner that our own people are treated under the law.” (Emphasis supplied.)

In 1937 Michigan enacted the Uniform Criminal Extradition Act, which Wisconsin had adopted in 1933, now comprising ch. 964, Wis. Stats. Included in such act is this provision:

“The arrest of a person may be lawfully made also by any peace officer without a warrant upon reasonable information that the accused stands charged in the courts of a state with a crime punishable by death or imprisonment for a term exceeding 1 year, . . .” Sec. 780.13, Mich. Comp. Laws (1948).

Defendants contend that this statute absolutely requires that before one wanted for commission of a felony in another state can be arrested without a warrant in Michigan, a warrant must be issued or some court proceeding instituted against the suspect in this other state. We find no merit in this contention.

The arrest referred to in this provision of the Uniform Criminal Extradition Act has reference to one which will support an extradition proceeding. In Burton v. New York C. & H. R. R. Co., supra, the argument was advanced that a person might not be arrested in New York until there had been compliance with sec. 2, sub. 2, art. IV, U. S. Const., and the implementing act of congress having to do with extradition. In disposing of this argument the New York court stated (132 N. Y. Supp., atp. 631):

“The plaintiff cites many authorities for this proposition, but none of them, we apprehend, goes to the extent of holding that a citizen of a sister state may not be arrested in this state for a crime committed in such sister state until all of the steps have been taken which would justify the rendition of such person. As well say that a man might not be arrested in this state for murder until he has been formally charged with crime by a grand jury.”

This holding was affirmed in Burton v. New York C. & H. R. R. Co. (1917), 245 U. S. 315, 38 Sup. Ct. 108, 62 L. Ed. 314, in an opinion by Mr. Justice Brandéis, who held that these provisions of the United States constitution and federal statutes do not deal with an arrest in advance of extradition.

In the later New York case of People v. Ormsby (1930), 136 Misc. 637, 241 N. Y. Supp. 225, 227, the court declared :

“A citizen of another state may be arrested in this state for a felony committed in another state, although all steps have not been taken which would justify the rendition of the persons so arrested.
“The right to arrest a nonresident suspected of committing a felony in a foreign state should be considered in the same manner as the right to arrest a resident.”

See also State v. Anderson (S. C. 1833), 1 Hill 212 (*327).

Furthermore, defendants’ contention ignores completely the existence of sec. 764.15 (f), Mich. Comp. Laws (1948), which authorized the instant arrests without any requirement of a warrant issued or prosecution begun in Wisconsin. This statute had been enacted two years prior to Michigan’s adoption of the Uniform Criminal Extradition Act. By providing that radio or teletype messages will qualify as reasonable cause for the arresting officer to believe that the person to be arrested has committed a felony so as to justify an arrest without warrant, the Michigan legislature was undoubtedly cognizant of the use of airplanes and high-speed automobiles by escaping criminals. It is absurd to think that the legislature intended this statute not to allow arrests or the broadcasting or teletyping the request for arrest in case of a felony committed in another state until valuable time is lost in swearing out a warrant. If discovery of the felony occurred late at night or on a Sunday still more time would be lost by such procedure.

The provision of secs. 764.15 (f) and 780.13, Mich. Comp. Laws (1948), insofar as they relate to arrest without a warrant are in pari materia and must be construed together. Repeals by implication are not favored and thus it is the duty of the court, if possible, to construe these two sections so that both shall be operative. 1 Lewis, Sutherland, Statutory Construction (2d ed.), pp. 463, 464, sec. 247; McLoughlin v. Malnar (1941), 237 Wis. 492, 497, 297 N. W. 370. This requires that we hold that sec. 780.13 does not repeal by implication any part of sec. 764.15 (f), but applies solely to an arrest made to support an extradition, and not to one made independently thereof.

We conclude that the teletype message received by the Michigan state police from the Milwaukee police department was sufficient to afford probable cause for the Michigan police to believe that defendants had committed a felony. Therefore, the arrest and the search made incidental thereto were valid.

Rulings on Evidence.

Behnke, a witness for the state, gave testimony that was damaging to defendants. On cross-examination the following transpired:

“Mr. Cantania [counsel for defendants] : Q. When is the first time you talked to any member of the Milwaukee Police Department regarding this case ?
“Mr. O’Connell [assistant district attorney] : A. Objected to as being immaterial.
“The Court: Sustained.”
“Mr. Cantania: Q. Did you at any time give a description to any member of the Milwaukee Police Department of this Impala automobile ?
“Mr. O’Connell: Same objection.
“The Court: Sustained.”

Upon the sustaining of this last objection counsel for defendants dropped this line of questioning without informing the trial court of its purpose. On this appeal it is contended that the above-quoted questions were asked for the purpose of ascertaining whether Behnke had furnished a written or recorded statement to the police, in order that the defense might request the court to have such statement made available for impeachment purposes. State v. Richards (1963), 21 Wis. (2d) 622, 124 N. W. (2d) 684, is cited in support of defendants’ contention that it was error for the trial court to have ruled as it did.

The factual situation in the Richards Case is very different from that in the instant case with respect to alerting the trial court to the objective of these questions as to which objections were sustained. In Richards, defense counsel made the following request to the trial court (21 Wis. (2d), at p. 628) :

“ Will the court permit us to ask this witness whether or not in the month of September she gave a statement to the police and go into what, if anything — the different things she may or may not have said to the police. And after we have determined whether or not she has given a statement and what that statement was — then, have that statement to see whether it is consistent with what she now testifies to ?’ ”

In that case the trial court was specifically advised of defense counsel’s purpose. Here defense counsel failed to state the purpose of the interrogation which was objected to. Without such an explanation it lay within the discretion of the trial court to conclude that the information sought was irrelevant to the issues of the case. Therefore, we find no error was committed in sustaining the objections to the questions propounded to Behnke.

Defendants further contend that the trial court improperly admitted into evidence over objection a carbon copy of a document when the original was in existence and not produced. It is claimed that this was prejudicial because the trial court grounded its finding of value of the stolen property on this document, state’s Exhibit 1.

The stolen items of merchandise were the property of Kor-Rect Jewelry Manufacturing Company. Komula, secretary-treasurer of the corporation, and Parisey, its sales manager, had loaded these items into the trunk of Parisey’s car at Green Bay before Parisey left for Milwaukee on June 25, 1962. Under Komula’s direction a typed receipt for these was drafted in triplicate, consisting of an original and two carbons. No prices or values were then stated on the receipt. Exhibit 1 is one of the two carbon copies of this receipt. It bears the signature of Parisey and written in ink after the listed items are the prices or values thereof. The testimony establishes that these price or value figures were written on Exhibit 1 by Parisey in the presence of Komula shortly before trial. Both Komula and Parisey testified to the correctness of such figures, which were the actual cost of the listed items as purchased by Kor-Rect from its suppliers. Komula testified that of his own knowledge he knew the items listed in Exhibit 1 were those loaded into the trunk of Parisey’s car.

We hold that when Parisey placed his signature on Exhibit 1 at the time he receipted for the merchandise it became a duplicate orginal. Therefore, the objection on the ground that it was a carbon copy was properly overruled. Furthermore, even if it had not been signed by Parisey on June 25, 1962, his use of the carbon copy upon which to write down prices or values, coupled with testimony that the items stolen were correctly listed thereon and that the inserted prices or values represented Kor-Rect purchase prices, entitled Exhibit 1 to be received in evidence. Since it was not offered for the purpose of proving the original receipt, the objection that it was a carbon copy lacked validity.

On the issue of the admissibility of carbon copies generally, McCormick, Evidence (hornbook series), p. 420, sec. 206, states:

“But the fact that many counterparts today are made by the use of carbons and the notion that writings made by the same stroke are like counterparts has caused a growing number of courts to treat all carbons, when authenticated as true reproductions, as if they were duplicate originals, i.e., as admissible without accounting for the original.”

On its face, our holding in Mack Trucks, Inc., v. Sunde (1963), 19 Wis. (2d) 129, 119 N. W. (2d) 321, would appear to be contrary to McCormick and the cases he cites insofar as a carbon copy of a letter mailed to another is concerned. We find it unnecessary to decide here whether the rule advocated by McCormick should be adopted by this court, or whether such a rule would encompass a carbon of a letter where the original has been mailed.

By the Court. — Judgment affirmed.


text:
    Robison, by Guardian ad litem, and another, Appellants, v. Borkenhagen and another, Respondents.

      October 2

    October 27, 1964.

      For the appellants there was a brief by Antaramian & Antaramian and Richard B. Antaramian, attorneys, and Mittelstaed, Heide, Sheldon & Hartley and W. A. Sheldon of counsel, all of Kenosha, and oral argument by W. A. Sheldon.

    For the respondents there was a brief by Vaudreuil & Vaudreuil of Kenosha, and oral argument by Leo E. Vaud-reuil.

   Currie, C. J.

Appellant plaintiffs contend that defendant driver was guilty of negligence with respect to lookout as a matter of law. No other issue is raised by them except the subsidiary one of this court’s taking judicial notice of the width of the street from curb to curb on which the accident occurred.

The street on which the accident occurred is a comparatively narrow street and at the time there were automobiles parked on both the east and west sides of it. A police officer testified that when cars are thus parked on both sides of the street the operator of an automobile traveling the street must have part of the vehicle across the center line. There was no testimony presented as to the width of this street from curb to curb, but appellants request that we take judicial notice that such width is 27 feet. In order to do so this court would be required to take notice of a plat recorded in the office of the register of deeds of Kenosha county.

We are of the opinion that judicial notice should not be taken of facts which are not capable of immediate and accurate determination by resort to easily accessible sources of information. See Uniform Rules of Evidence, rule 9 (2) (d) ; Model Code of Evidence, rule 802 (c) (1942) ; McCormick, Evidence (hornbook series), p. 691, sec. 325. While records in any of the state offices in Madison are readily accessible to this court, this is not true of records in the courthouse at Kenosha. Therefore, we exercise our discretion to decline to take judicial notice of the width of the street in question. Furthermore, in passing on the correctness of the jury’s finding that defendant was not negligent with respect to lookout, we must confine our review to the actual evidence adduced before the jury.

Defendant was the only eyewitness to the actual impact between her car and plaintiff child. The testimony of defendant that at and immediately prior to the accident she was driving at a speed of ten miles per hour is undisputed. There is no evidence that she could have seen plaintiff child sooner than she did. Since the street was so narrow that when cars were parked on both sides another car had to drive over an imaginary center line to avoid hitting the parked cars, the jury could assume that there were only several feet on each side of defendant’s car at the time of the accident. At the trial defendant was called adversely and testified:

“Q. Did you see this child, John Robison, at any time before the impact? A. I saw him run out two (2) feet in front of me. I saw him dart out to my bumper.
“Q. When you say two (2) feet in front of you you mean he was two (2) feet from the front end of your car? A. I mean that he was running from behind a parked automobile when I was two (2) feet from the parked automobile.”

There was no other testimony which might tend to show that defendant could have seen the child sooner.

Defendant further testified that as soon as she saw the child she slammed on her brakes and brought her car to a stop. She first stated she could not estimate the distance in which she thus brought her car to a stop after first seeing plaintiff but when pressed estimated this distance at three feet. In any event, after the car stopped the child was lying on the pavement next to the car’s left fender no more than a foot and a half away. While neither defendant’s speed nor management and control are at issue here, this evidence tends to corroborate defendant’s version that she saw plaintiff as soon as the child emerged from behind the car parked on the east side of the street.

In Binsfeld v. Curran (1964), 22 Wis. (2d) 610, 612, 126 N. W. (2d) 509, which also involved a car striking a child pedestrian, this court stated, “As in any other case of negligence, the question is for the jury unless the facts are such as to compel a determination as a matter of law.” We deem the facts of the instant case are not such as to compel a determination that defendant was negligent as a matter of law with respect to lookout.

Appellants place much reliance on our holding in Lisowski v. Milwaukee Automobile Mut. Ins. Co. (1962), 17 Wis. (2d) 499, 117 N. W. (2d) 666, that defendant driver there was guilty of negligent lookout as a matter of law. The facts in that case are readily distinguishable from those here presented. There defendant driver was looking straight ahead while driving down a wide street in a business district and did not see a five-year-old child until the child was directly in the driver’s path. While there were cars parked along the curb to his right from between which the child emerged, the evidence disclosed that the child had traveled a distance of seven to 10 feet before the driver saw him. It was held that a motorist in traffic in a business district does not fulfil his duty of lookout by looking straight ahead.

Appellants further stress testimony given by a neighbor that prior to the accident there had been children “playing in the street, back and forth.” Defendant denied having seen any children in the street from the time she turned the corner and entered Fifteenth avenue. However, even if defendant had seen children darting into the street prior to seeing plaintiff, we still consider a jury issue was presented with respect to defendant’s lookout.

By the Court. — Judgment affirmed.

       If the request to take judicial notice of the width of the street had been made to the trial court, the objection would not lie that the plat records showing such width were' mot readily accessible inasmuch as they were situated in the same municipality in which the trial was being conducted.


text:
    State, Respondent, v. Brown, Appellant.

      October 2

    October 27, 1964.

      For the appellant there was a brief and oral argument by Walter J. Steininger of Milwaukee.
    For the respondent the cause was argued by William A. Plats, assistant attorney 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 December 16, 1964.

   Hallows, J.

Two questions are raised: (1) Is sec. 161.02 (3), Stats., unconstitutional, and (2) is there sufficient credible evidence to sustain the conviction ?

The defendant contends sec. 161.02 (3), Stats., makes the excessive or the habitual use of narcotics a crime, while in fact such use is a disease and the criminal sanctions amount to cruel and unusual punishment in violation of the state and federal constitutions. The defendant relies on Robinson v. California (1962), 370 U. S. 660, 82 Sup. Ct. 1417, 8 L. Ed. 758. After the printing of the defendant’s brief, the same question was presented to this court and decided adversely to the contentions of the defendant. See Browne v. State (1964), 24 Wis. (2d) 491, 129 N. W. (2d) 175, wherein it was held sec. 161.02 (3) was constitutional and did not make drug addiction as such a crime. We pointed out the section established three offenses: (1) The habitual use, (2) the excessive use, and (3) a use except pursuant to a prescription. The latter offense embraces a single instance of use.

The defendant argues there is not sufficient credible evidence to sustain a conviction for habitual or excessive use of a narcotic. That may be, but the argument is beside the point. He was not charged with either excessive or the habitual use of narcotics but was so charged and convicted of a use not pursuant to a prescription. While the evidence showed more than a single instance of use, it is not necessary to prove habitual or excessive use because the defendant was not so charged.

The defendant was arrested in Milwaukee on the night of June 26, 1962, by two detectives of the Milwaukee vice squad who were driving an unmarked car and observed him driving on the wrong side of the street. The defendant did not have a driver’s license. After the arrest for this traffic violation the officers searched Brown’s person but no hypodermic needles or other accessories used by dope addicts were found. A search of his auto produced two half-empty bottles of a narcotic cough syrup which can be purchased without a prescription. Brown was then taken to the vice-squad room of the Safety Building and was told to remove his clothing and was examined. It was found he had nine needle marks on his left forearm, three of which were fresh. He was again interrogated about his use of narcotics.

At the trial one of the arresting officers testified the defendant admitted he used heroin intravenously during May and June in Milwaukee, the last injection being on June 21, 1962, and had purchased during that time about eight $5 bags of heroin. Another detective by the name of Brown testified he interrogated the defendant the following morning and the defendant agreed to sign a confession which the detective typed up. The confession was signed by the defendant and witnessed by Detective Brown and his partner Detective Lang, now deceased. The written confession recites it was fairly and voluntarily given without any threats or promises and states substantially to what Detective Brown testified, namely, the use of heroin during the months of May and June, 1962, the last injection of heroin on June 21, 1962, in a room on North Eleventh street in the city of Milwaukee and the use of heroin by injection in the left arm by a needle and syringe.

The defendant on the stand admitted the use of heroin during the months of May and June but testified the injections took place only in Chicago, Illinois. He disputed the testimony of Detective Brown regarding the confession stating Brown did not type the confession and he did not sign it in the presence of either witness. The defendant claims he signed the confession because Officer Lang promised to get him released on a $1,000 bond if he did so and also because he did not want to lose his job by staying in jail as his father had cosigned some bills and he did not want his father to be obliged to pay them. The defendant also claims he was promised leniency if he co-operated with the police.

The confession was admitted in evidence without objection from the defendant or his attorney. After both parties rested, the trial court said the case involved “purely a matter of credibility” and the defendant’s credibility was impeached by virtue of prior convictions. We cannot say the trial court was in error in believing the officers instead of the defendant.

But it is contended the written confession of the defendant was involuntary and obtained through coercion and promises and therefore a reversal is required on constitutional grounds. Spano v. New York (1959), 360 U. S. 315, 79 Sup. Ct. 1202, 3 L. Ed. (2d) 1265; Haynes v. Washington (1963), 373 U. S. 503, 83 Sup. Ct. 1336, 10 L. Ed. (2d) 513. The factual basis for this contention depends upon credibility. At the time of the admissibility of the confession no evidence had been put in by the defendant on the involuntariness of the confession. Such evidence as defendant did put in was after the confession was admitted and as part of his defense. It was in the nature of an explanation to destroy the probative value of the confession. In spite of the manner in which the evidence was adduced if the trial court believed the confession was involuntary or was obtained in violation of the defendant’s constitutional rights, in making its finding, the court should have disregarded it and so ruled. However, the trial judge in finding the defendant guilty stated he considered the confession valid and thus resolved the issue. In our review of the record and consideration of this alleged constitutional error, we come to the same conclusion as the trial court did and find the confession was voluntarily given and the defendant’s constitutional rights were not violated.

Finally, the defendant contends the court erred in admitting into evidence the two half-full bottles of cough medicine found by the police in their search of the car. This search by the vice-squad officers who were no doubt shadowing or trailing the defendant is not justified by virtue of the traffic violation. Such a search we pointed out was not justified in Barnes v. State (1964), ante, p. 116, 130 N. W. (2d) 264. Although the search was illegal the state did not offer the fruits thereof in evidence. It was the defendant who introduced these bottles in evidence and consequently he cannot now complain.

No point at the trial was made of the search of Brown’s person at the time of arrest or of requiring him to disrobe at the police station but we have difficulty in perceiving how the vice-squad detectives could discover needle marks on the left arm of a person unless they were searching for them. If the police removed the defendant’s coat or his shirt in order to discover the needle marks without consent of the defendant, such action would constitute an illegal search of the person and would be subject to the rule of Barnes. What is in plain sight they may look at, what is hidden or covered is verboten.

By the Court. — Judgment affirmed.


author: Gordon, J. Hallows, J.

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

      October 2

    October 27, 1964.

      For the plaintiff in error there was a brief and oral argument by James M. Shellow of Milwaukee.
    For the defendant in error the cause was argued by Donald W. Steinmets, assistant district attorney of Milwaukee county, with whom on the brief were George Thompson, attorney general, and William J. McCauley, district attorney.
   Gordon, J.

The Absent Witnesses.

Mr. Meyer claims that an irregularity occurred when, of his four alibi witnesses who had been subpoenaed, three failed to appear. No evidence whatsoever is offered to show why such witnesses did not respond to their subpoenas. Mr. Meyer suggests that they may have been intimidated by the state, but there is not a shred of evidence in the record to support this contention.

The charge is further made that if the state in interviewing the alibi witnesses discovered evidence which was damaging to the state’s case, it was the state’s duty to produce such evidence. If there were any irregularity in connection with the failure of the subpoenaed witnesses to make their appearance, the error is not apparent on the record before this court. It is noted that compulsory process was available to Mr. Meyer under sec. 325.11, Stats., but he did not avail himself of this assistance.

Intimidation of Witnesses.

One of the alibi witnesses who was subpoenaed did in fact appear. A second alibi witness presented himself at the trial without the service of a subpoena upon him. After the testimony of the two alibi witnesses was received, the trial judge ordered each of them detained in custody, adding that he hoped “that the district attorney’s office will take the proper action.”

If the trial court were of the opinion that perjured testimony was given, the reference of the matter to the district attorney for a perjury charge was appropriate. The decision to hold such witnesses in custody was not made until after their original testimony and original cross-examination had been completed. The fact that each of such witnesses was thereafter called to the stand does not warrant the conclusion that his subsequent testimony was adduced with intimidation; this is especially true since in each case the later testimony was substantially the same as the original testimony.

It is to be noted that there was no jury in this case. Furthermore, the determination to hold the first alibi witness in custody was made at a time when the second alibi witness was not in the courtroom. We perceive no error in connection with the claim that the alibi witnesses were intimidated by the trial court.

The Lie-Detector Test.

After the trial court had found Mr. Meyer guilty, it offered him the opportunity to take a lie-detector test regarding his participation in the robbery. The court advised Mr. Meyer that if he failed to pass the lie-detector test, he would be sentenced to the maximum term of thirty years. On the other hand, if he passed the test, the court stated it would “take it into consideration.”

It is difficult to determine what the trial judge had in mind by engaging in this colloquy with the convicted man. Under no reasonable interpretation could the trial court’s offer to Mr. Meyer be construed to relate solely to sentencing. Whether or not Mr. Meyer participated in the robbery must of necessity relate to the question of guilt or innocence. By advising Mr. Meyer that he might improve his situation if he passed a lie-detector test which showed that he did not participate in the crime, the trial judge made ambiguous whether guilt had been established beyond a reasonable doubt.

We recognize that the trial judge may have had some completely extraneous purpose in suggesting the lie-detector test. It may in fact not have involved any uncertainty by the trial court as to guilt or innocence. Unfortunately, however, we cannot penetrate beyond the actual words used by the trial judge and the direct proposal made in open court to Mr. Meyer.

The procedure in which an accused, after being found guilty, is sentenced is not immune from scrutiny under the due-process clause. Williams v. New York (1949), 337 U. S. 241, 69 Sup. Ct. 1079, 93 L. Ed. 1337; Townsend v. Burke (1948), 334 U. S. 736, 68 Sup. Ct. 1252, 92 L. Ed. 1690.

The rule of State v. Bohner (1933), 210 Wis. 651, 246 N. W. 314, is still operative; nevertheless, in our opinion, the trial court’s proposal to the accused compromised its finding relative to reasonable doubt. The presence in the record of equivocation on this crucial finding compels us in the interests of justice to grant a new trial under sec. 251.09, Stats.

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

Hallows, J.

(dissenting). I cannot agree the conduct of the trial judge made it ambiguous he was convinced beyond a reasonable doubt of the defendant’s guilt or rendered the finding equivocal. Whatever value the lie-detector test or polygraph has as an investigatory tool, its results are inadmissible in evidence as having no probative value on the question of guilt. State v. Bohner (1933), 210 Wis. 651, 246 N. W. 314. Certainly it must be assumed the trial judge knew this rule of law and it is not to be presumed he'would take the results of a polygraph into consideration in determining the guilt or innocence of a defendant.

A reading of the record indicates the only reasonable interpretation which can be given to the trial court’s offer to the accused related solely to sentencing. At the close of the trial the attorneys argued the effect of the evidence. The main question was whether the defendant was identified beyond a reasonable doubt as the individual who participated in the crime. After argument, the court found the defendant guilty and stated there was no doubt in the court’s mind from the positive identification of three witnesses that the accused was the individual who participated in the crime. The court then commented upon what is considered deliberate lying under oath by a witness and ordered an investigation.

Because of the vigorous argument of innocence by the accused’s counsel the court then addressed the accused defendant, “Now, as to you, Kenneth Meyer, the court will give you an opportunity to take a lie detector test in this case since you are so sure and have told your attorney that you did not participate in this. The maximum sentence in this case is thirty years for armed robbery. If you don’t so pass that lie detector test, this court will then order the said maximum sentence in this case. On the other hand, if you do pass that test, this court will take it into consideration.” The court further told the defendant to confer with his attorney before he decided what he wanted to do. The court further stated, “I told you I will take it into consideration. You don’t have to take the test if you don’t wish, but I will pass sentence at this time .... What do you wish to do?” Defendant: “I will take it.” It is clear the trial judge did not desire the test. His mind on guilt was made up beyond a reasonable doubt — any reference to the taking of a lie-detector test referred solely to sentencing.

The matter was thereupon adjourned to July 28th, at which time the defendant stated to the court he had nothing to say before the court passed sentence upon him. Plis counsel, however, in making a plea for leniency stated that, while the defendant had “not accepted the verdict perhaps in the best manner,” he had “now adjusted himself” and was “willing to accept the penalty” the court imposed and he was “willing to do the best thing he can in order to straighten out.”

Nothing in the record, in my view, indicates the trial judge had the slightest doubt as to the guilt of the accused and the statements made by the court taken in their context and what had occurred at the trial do not create any ambiguity or equivocation in the court’s finding. We agree that a finding of guilty by the trial court does not preclude this court from considering such conduct of the trial court as may indicate a doubt was in fact held, whether the results of a lie-detector test is a matter which a trial judge may properly take into consideration in sentencing under the due-process clause of the constitution is a question not now before the court. I would affirm.

I am authorized to state Mr. Chief Justice Currie and Mr. Justice Heffernan concur in this dissent.