author: Fairchild, J. Wilkie, J.

text:
    Felkl, Appellant, v. Classified Risk Insurance Corporation and another, Respondents.

      June 2

    June 30, 1964.

      For the appellant there were briefs by Silver stein, War-shafsky & Rotter, attorneys, and Ted Warshafsky and Michael I. Tarnoff of counsel, all of Milwaukee, and oral argument by Mr. Tarnoff.

    For the respondents there was a brief by Giffin, Simar ski & Koch and Merton H. Giffin, all of Milwaukee, and oral argument by Merton H. Giffin.

       Motion for rehearing denied, with costs, on September 2, 1964.

   Fairchild, J.

The general rule is that an order for a new trial in the interest of justice will be reversed only where the trial court abused its discretion. The rule does not apply, however, where the court proceeded upon an erroneous view of the law.

Sec. 270.49 (2), Stats., provides:

“. . . No order granting a new trial in the interest of justice shall be valid or effective, unless the reasons that prompted the court to make such order are set forth in detail therein or the memorandum decision setting forth such reasons is incorporated by reference in such order.

It follows that in reviewing such order, we are to examine the reasons stated, in the light of the record, in order to determine whether the order is based on an error of law or is an abuse of discretion. The question is not, of course, whether our reading of the record would lead us to order a new trial, and we recognize and give full weight to the opportunity of the trial court to observe the trial and evaluate the evidence.

The order now before us referred to the reasons set forth in the decision, which consists of a transcription of the court’s remarks after hearing argument. We therefore turn to the context of the decision.

The first portion of the court’s decision disposed of defendant’s claim that as a matter of law there was no evidence to sustain the finding that defendant’s negligence caused the collision. The court was of the opinion that causation was a question for the jury even if the affirmative finding were not compelled by the evidence, as a matter of law. The court did make a reference to perversity, but it is not clear at that point whether he was stating a claim of defendant or the court’s own conclusion. It is fair to say that the decision as a whole does not suggest that the court found any probability of injustice in the finding that defendant was causally negligent.

It does appear that the order for a new trial was entirely motivated by the court’s conclusions with respect to the $10,000 personal injury award.

The court stated that there was not “sufficient credible evidence to support any finding insofar as permanent damages are concerned” so that the jury could only resort to conjecture. The court also referred to the damage awards considered in four recent decisions of this court and indicated that the $10,000 award to Mr. Felkl was excessive in the light of the court’s conclusion just quoted. The court declined to set a figure which the plaintiff might accept in lieu of a new trial because the evidence left the matter to conjecture.

Plaintiff had consulted two doctors with reference to difficulties experienced with his back and neck after the accident. He saw Dr. Nothum the third day after the accident, and for about a week thereafter. Dr. Nothum prescribed treatment. After experiencing further difficulty, plaintiff went back to Dr. Nothum in January, 1963. In February, Dr. Nothum referred him to Dr. Salinsky, a specialist in orthopedics, for diagnosis. Dr. Salinsky examined him, took X rays, and made a report to Dr. Nothum. Dr. Nothum sent him to Dr. Salinsky again in April, 1963. Treatment was prescribed directly by Dr. Nothum, who saw plaintiff frequently.

The court permitted Dr. Salinsky to testify concerning the history given by plaintiff and plaintiff’s subjective complaints, and to state opinions as to diagnosis, causation, and permanency, based on the history and complaints as well as the doctor’s observations and interpretation of X rays. Dr. Nothum did not testify, although it appears that plaintiff originally planned to call him. The court, after verdict, concluded that Dr. Salinsky’s testimony was legally insufficient unless corroborated by testimony of Dr. Nothum.

Defendant had objected to Dr. Salinsky’s testimony as to subjective matters because he was an “examining doctor, not in the nature of a treating doctor.” The testimony, however, indicated that Dr. Nothum sent plaintiff to Dr. Salin-sky, a specialist, for examination and diagnosis which would aid Dr. Nothum in treating plaintiff. Defendant made no effort to show that plaintiff went to Dr. Salinsky for the purpose of enabling Dr. Salinsky to testify in this action.

We therefore conclude that Dr. Salinsky’s testimony was properly admitted and had probative force under our prior decisions, discussed in Ritter v. Coca-Cola Co. The county judge did not, of course, have the Ritter decision before him at the time the new trial was ordered, but that decision states the principle “that if the trial court determines that a consultation is made by a claimant with a physician for the bona fide purpose of treatment [here, of obtaining a specialist’s diagnosis to aid in treatment], the fact that the claimant also desires to utilize the physician as a witness on the trial in relation to his injury will not preclude the physician from testifying as to the patient’s report of his subjective symptoms or from predicating medical conclusions upon such reports.”

We conclude that the order for a new trial was based upon an error of law. There is no general rule that a plaintiff must call all his treating physicians, and the memorandum suggests no reason to believe that injustice resulted in this particular case from the absence of Dr. Nothum.

The county court did not state that if weight were given to Dr. Salinsky’s testimony the $10,000 award would, in his opinion, be excessive. We have, however, examined the record in order to determine whether the award can be sustained by the evidence. If we were satisfied that the award was excessive, we would exercise our discretionary power and grant a new trial on damages, giving plaintiff an option under Powers v. Allstate Ins. Co. to accept a lower amount in lieu of the new trial.

The evidence, construed most favorably to plaintiff, may be summarized as follows:

Felkl’s car was suddenly hit from behind, and the next thing he remembered was an officer asking for his driver’s license. He was taken to emergency hospital by ambulance and remained there about two hours. He had pain in his neck and lower back and his right eye was tearing.

Dr. McCormick, who treated the eye, testified that' he found an abrasion to the cornea, which caused pain for two days but has fully healed.

Dr. Nothum gave him heat treatments for his neck and back, and permitted him to return to work after one week. He returned to Dr. Nothum after two months because his neck and back got worse, and the heat treatments were continued. He wears a corset and experiences more back pain when he tries to do without it. His neck improved, but still “snaps” when he turns it to the left side. His back bothers him every day.

Felkl is a molder. He must carry 75 to 90-pound cores 15 to 20 feet at waist height 60 to 75 times a day. He had done this work without difficulty for fifteen years before the accident. Now, at the end of a day’s work, he can barely bend. He could take a lighter job, but would have to take a cut of 80 or 90 cents per hour in pay. He is thirty-six years of age. He testified he could not afford the cut, and forced himself to continue his present job.

He formerly carried on considerable gardening and similar activity at home, but he has had to reduce this by half.

Dr. Salinsky testified concerning his examinations of plaintiff, and interpreted the X rays he had taken. He pointed out several abnormalities in the curvature of the neck and lower back, and the width of spaces between certain vertebra, which led him to conclude that certain injuries had occurred to the ligaments. He stated his opinion that these injuries were caused by the accident; that Felkl sustained injury to the ligaments supporting the structure of the neck; that the ligaments now hold by scar tissue, which has less elasticity and resiliency and stimulates pain; that there is spasm in the left lumbosacral, and the lumbar spine does not have its normal curvature because of muscle spasm; that because more than the average healing period has elapsed, the condition will be permanent, especially upon heavy lifting or frequent bending; that if he continues doing heavy work, he will have to continue to wear the corset and he will be annoyed by the stress to this region.

It is true that the expert called by defendant interpreted the X rays differently, held the opinion that Felkl does not have any permanent disability in either the neck or back, considered that the continued use of the corset was detrimental, and did not feel that Felkl’s complaints were serious or disabling. The difference of opinion, however, presented a question for the jury to resolve.

Bearing in mind the plaintiffs age, the character of his work, the discomfort about which he testified, and the permanency of his difficulty according to Dr. Salinsky, we cannot say that the $10,000 award was beyond the range of reasonably debatable amounts.

By the Court. — Order reversed, cause remanded with directions to reinstate the verdict and enter judgment thereon.

Wilkie, J.

(concurring in part; dissenting in part). I must respectfully disagree with that portion of the opinion of the majority that the jury verdict of $10,000 was not excessive. Even viewing all the evidence recited in the majority opinion in the light most favorable to the plaintiff, including the disputed testimony of Dr. Salinsky as to the extent of permanent injury, it is my conclusion that an award of $10,000 to the plaintiff is beyond the range of reasonably debatable amounts and is excessive. I, too, would reverse but I would not reinstate the verdict but would remand the cause to give the trial court an opportunity to give the plaintiff an option to either receive a new trial or to take such reduced amount as the trial court may determine to be reasonable under the rule in Powers,

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

        Millay v. Milwaukee Automobile Mut. Ins. Co. (1963), 19 Wis. (2d) 330, 337, 120 N. W. (2d) 103.

       Ante, p. 157, 128 N. W. (2d) 439, decided June 2, 1964.

        Ritter v. Coca-Cola Co., supra, footnote 2, p. 164.

       (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393.

        Kincannon v. National Indemnity Co. (1958), 5 Wis. (2d) 231, 92 N. W. (2d) 884.

        Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393. Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis. (2d) 568, 117 N. W. (2d) 660.


source: Caselaw Access Project

author: Faiechild, J.

license: Public Domain

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

      June 5

    June 30, 1964.

      For the appellant there was a brief by Morrissy, Morris-sy, Sweet & Stowe and Ralph R. Stowe, all of Elkhorn, and oral argument by Ralph R. Stowe.

    For the respondent the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were George Thompson, attorney general, William A. Plats, assistant attorney general, and William L. Seymour, district attorney of Walworth county.
   Faiechild, J.

The question of the withdrawal of a plea of guilty or of nolo contendere is addressed to the discretion of the trial court. A decision to grant or deny a motion for withdrawal will not be disturbed on appeal unless it is shown to have been an abuse of discretion.

Although at least one appellate court has upheld a grant of permission to withdraw a plea because of unanticipated consequences of a conviction, we have found no case where such consequences rendered it an abuse of discretion to deny permission to withdraw.

We find no abuse of discretion in the present case. Appellant claims that he decided to plead nolo contendere instead of not guilty because he thought that he would merely be fined, and the judgment would not have the full effect of a conviction after verdict or plea of guilty. Mr. Payne was, however, represented by counsel. Although Payne testified to the effect that his counsel told him the “nolo contendere would not be a conviction and that this would be the end of it,” Payne’s petition did not go so far. In the petition he said the attorney explained “that a plea of nolo contendere would not be an admission as to any material fact and that such a plea could not be used against the petitioner in any other action, . . The explanation quoted from the petition is correct, and does not represent that the conviction resulting from the plea could have no legal effect upon Mr. Payne’s interests.

The court had before it the transcript of testimony on preliminary examination. It included the testimony of two agents that racing bets were left with Payne on several occasions and that winnings were collected from him. The court noted in its memorandum decision that although appellant claims to have a meritorious defense to the charge, he had failed to state the nature thereof.

Being unable to discern any abuse of discretion, we affirm the order denying permission to withdraw the plea. No attack has been made on the propriety of the judgment, although included in the notice of appeal.

By the Court. — Judgment and order affirmed.

       Guilty plea: Gordon v. State (1922), 178 Wis. 205, 188 N. W. 752; State v. Dowling (1931), 205 Wis. 314, 237 N. W. 98; La Fave v. State (1940), 233 Wis. 432, 441, 289 N. W. 670; Pulaski v. State (1964), 23 Wis. (2d) 138, 143, 126 N. W. (2d) 625. Nolo contendere: Anno. Plea of nolo contendere, 89 A. L. R. (2d) 540, 571.

        United States v. Shapiro (7th Cir. 1955), 222 Fed. (2d) 836, affirming United States v. Shapiro (E. D. Wis. 1955), 16 F. R. D. 499.


author: Hallows, J. Fairchild, J.

text:
    Wolke, Sheriff, Plaintiff in error, v. Fleming, Defendant in error.

      July 20

    September 1, 1964.

      For the plaintiff in error the cause was argued by Robert D. Martinson and William A. Plats, assistant attorneys general, and John H. Bowers, special counsel, of Madison, with whom on the brief were Robert P. Russell, corporation counsel of Milwaukee county, George Thompson, attorney general, and Richard L. Cates, special counsel, of Madison.
    For the defendant in error there was a brief and oral argument by Ray T. McCann of Milwaukee.

       Motion for rehearing denied, without costs, on October 27, 1964.

   Hallows, J.

The defendant moved to quash the writ of error on the grounds the writ seeks to review an order for judgment, which order is not appealable. Lentz v. Northwestern Nat. Casualty Co. (1963), 19 Wis. (2d) 569, 120 N. W. (2d) 722. The order commands the sheriff of Milwaukee county to forthwith discharge the defendant from custody and contains the language, “Let Judgment Be Entered Accordingly.” A writ of error is proper to review an order or judgment of any court discharging or remanding a person brought up by writ of habeas corpus. Sec. 274.05, Stats. Since the order commands the sheriff to discharge the defendant, it should be governed by this section and not by the exclusionary effect of the more general section 274.33 relating to appealable orders and judgments.

An order determining the rights of the petitioner in a habeas corpus proceeding is just as appropriate for the purpose as a judgment. Throughout ch. 292, Stats., governing habeas corpus, the statutes refer to orders and not to judgments with the exception of sec. 292.25 where the word “judgment” is used in the sense of decision or determination. An order discharging or directing the discharge of a prisoner is contemplated by sec. 292.30 and provision is made therein for its enforcement. Consequently, the language in the order, “Let Judgment Be Entered Accordingly,” is superfluous and should not be given the effect of destroying the appealability of the order which meets the call of sec. 274.05.

On oral argument and in his brief the defendant stated the warrant and complaint are invalid and without foundation in law because the John Doe proceeding was not founded upon any complaint oral or written. Such allegation of fact is not made in the traverse and thus not admitted by the demurrer. The traverse alleges only no complaint was made “in reference to your petitioner” and “in any manner concerning the petitioner.” It is true the trial court in its opinion stated, “the vital thing in the case is that there was no oral or written complaint to institute the John Doe proceedings.” But this statement must be taken in its context in reference to the defendant.

We consider the trial judge was in error in ordering the discharge of the defendant on the grounds stated in his opinion. As we understand his opinion in the light of admitted facts in the traverse, a complaint and warrant to be the valid end product of a John Doe proceeding must be based upon testimony taken upon or pursuant to the initial oral or written complaint made against or regarding the person ultimately named in the warrant. However, the validity of a John Doe proceeding under sec. 954.025, Stats., does not depend upon the written or oral complaint naming anyone. The section by its very nature contemplates an investigation into the probable commission of a crime although the perpetrator thereof is unknown to the person making the complaint to the magistrate. The statute requires only that such person have reason to believe a crime has been committed within the magistrate’s jurisdiction; it does not require that person to know who committed the crime. It is the purpose of the John Doe proceeding to ascertain whether the crime has been committed and by whom and the extent of such examination is within the discretion of the magistrate which must be reasonably exercised. State ex rel. Long v. Keyes (1889), 75 Wis. 288, 44 N. W. 13. See State ex rel. Jackson v. Coffey (1963), 18 Wis. (2d) 529, 118 N. W. (2d) 939. See State ex rel. Kowaleski v. District Court (1949), 254 Wis. 363, 36 N. W. (2d) 419, wherein the accused was named instead of John Doe. While a John Doe proceeding may be a single-shot investigation, we do not believe it necessarily must be. On the record before us the magistrate had jurisdiction to conduct a John Doe investigation involving the failure to report traffic violation convictions in Milwaukee county.

This review raises an important question of the scope of the writ of habeas corpus when the writ is used immediately after the arrest and before a preliminary hearing is had. Usually the writ is sought after a preliminary hearing has been held or after a judgment or order of a court has been made. At common law and in this state a writ of habeas corpus does not perform the function of a writ of error or an appeal but is confined to an examination of jurisdictional defects or illegality amounting to a want of legal authority for the detention or the imprisonment of the defendant. Larson v. State ex rel. Bennett (1936), 221 Wis. 188, 266 N. W. 170; State ex rel. Morgan v. Fischer (1941), 238 Wis. 88, 298 N. W. 353; State ex rel. Isenring v. Polacheck (1898), 101 Wis. 427, 77 N. W. 708. And, ordinary judicial errors as distinguished from jurisdictional errors are not reached or considered by the writ of habeas corpus. In re Milburn (1883), 59 Wis. 24, 17 N. W. 965. However, in this state especially of late the writ of habeas corpus has been used and recognized as a postconviction review of errors, whether they be considered jurisdictional or judicial, involving a violation of a constitutional right. Babbitt v. State (1964), 23 Wis. (2d) 446, 127 N. W. (2d) 405; State ex rel. Burnett v. Burke (1964), 22 Wis. (2d) 486, 126 N. W. (2d) 91; State ex rel. Casper v. Burke (1959), 7 Wis. (2d) 673, 97 N. W. (2d) 703. Habeas corpus to review constitutional error is not limited to postconviction review. Even though habeas corpus may lie before trial to review constitutional error although jurisdiction exists, it does not lie in a situation such as this where another adequate remedy exists.

What amounts to jurisdictional error is a matter of some misunderstanding. As early as 1901 in State ex rel. Durner v. Huegin (1901), 110 Wis. 189, 237, 85 N. W. 1046, this court in an exhaustive opinion discussed the nature and scope of a writ of habeas corpus and held that a writ of habeas corpus reached only jurisdictional error and did not reach beyond the commitment to the proceedings leading up thereto where the person in custody was detained by virtue of the final judgment or order of a court having jurisdiction of the subject matter and the person. This rule, however, did not apply where a person in custody was being held on a commitment for trial because a preliminary examination is statutory and compliance with the statute is a requisite to jurisdiction. Therefore the writ of habeas corpus can be used to test whether there is any competent evidence “for the judicial mind of the examining magistrate to act upon in determining the existence of the essential facts,” and whether the complaint charged an offense known to law.

If an examining magistrate acts without evidence he exceeds his jurisdiction; however, any act upon competent evidence is within his jurisdiction whether he decides the matter wrongly or rightly, and thus the writ will not lie in the latter case. A magistrate acts without jurisdiction if he binds over a defendant solely on testimony of an incompetent witness. Hancock v. Hallmann (1938), 229 Wis. 127, 281 N. W. 703.

What constitutes jurisdictional error or defect prior to the preliminary hearing has been the subject of at least two reported Wisconsin cases. In the first case, In re F. S. Eldred. In re Oliver B. Ford (1879), 46 Wis. 530, 1 N. W. 175, a complaint was made to a magistrate for the arrest of Eldred and Ford. A warrant was issued and upon their arrest they sought their freedom by a writ of habeas corpus. The return to the writ was traversed and the state demurred, as was done in the instant case. The trial court held the arrest was pursuant to a legally issued warrant. On appeal this court said the writ of habeas corpus where a prisoner is held by legal process raises only the question of jurisdiction of the court or officer to issue the process of arrest. The court then considered the facts in the traverse as they bore on the question of jurisdiction of the justice of peace as an examining magistrate to entertain the complaint against the defendants and decided he had no jurisdiction to issue the warrant on which the arrests were made because the offense alleged in the complaint was not committed in his county.

In the second case, State ex rel. Hellige v. Milwaukee Liedertafel (1917), 166 Wis. 277, 279, 164 N. W. 1004, the relator was arrested by virtue of a warrant issued by a circuit court commissioner. The warrant was founded on a verified complaint and an affidavit in a civil case, both stating the relator as treasurer fraudulently misapplied corporate funds. Upon his arrest the relator secured a writ of habeas corpus and was discharged from custody of the sheriff. Upon appeal this court held the order of arrest was properly issued in the civil action upon the affidavit and stated, “This holding makes it unnecessary to decide the question whether habeas corpus is a proper remedy in a case where the warrant has been issued without a sufficient affidavit, or whether in such case a motion to vacate the order under sec. 2715, Stats, [now sec. 264.28], is the exclusive remedy.”

It is clear under Durner v. Huegin and Eldred-Ford Cases that the warrant must charge some offense. The defendant claims the complaint and warrant are illegal, void, and' of no effect because they fail to state any offense. This argument is based on several grounds, i.e., in the first count, mandatory language “against the peace and dignity of the state” required by sec. 955.14(2), Stats., is omitted, and the first and second counts charge no offense because oral testimony cannot constitute false swearing under sec. 946.32 (1) (a). It is also argued that in three of the nine remaining counts charging ■ misfeasance in office that the acts are alleged to have occurred subsequent to January 1, 1962, when the defendant was a deputy clerk rather than the clerk of the criminal courts of Milwaukee county. The sufficiency of each remaining count is challenged because of the absence of an allegation of the date of the traffic violation conviction which was alleged not to have been reported within forty-eight hours.

It is not necessary to answer all these contentions. If any one count charges an offense, the warrant is sufficient to sustain the defendant’s arrest and detention. We consider counts three to eleven adequately stated offenses known to law and support the warrant. The rule of certainty is not violated by the allegations. There is no statutory requirement that the date of the convictions be alleged. Each misfeasance in office is alleged to consist of failing to report a conviction within forty-eight hours as required by statute. The allegations sufficiently charge the defendant on specific dates .with failure to report convictions within forty-eight hours from the time of such conviction. The complaint is not ambiguous or misleading and a collateral attack on it should be liberally construed in favor of jurisdiction. Heckman v. Swartz (1885), 64 Wis. 48, 24 N. W. 473.

The other arguments of the defendant do not involve questions of jurisdictional defects or the facts do not constitute such a defect. The form of the subpoena used in the John Doe proceeding did not deprive the magistrate of jurisdiction to issue the warrant. If the defendant believes the subpoena was improper he could have refused to testify; having testified, the defendant waived his objection. Nor does the defendant’s argument that he was compelled to testify while a suspect in violation of the Fifth and Fourteenth amendments of the United States constitution raise a jurisdictional question. The Fifth amendment is now applicable in effect to state proceedings by virtue of the Fourteenth amendment. Malloy v. Hogan (1964), 378 U. S. 1, 84 Sup. Ct. 1489, 12 L. Ed (2d) 653. If the defendant should not have been interrogated while a suspect without warning or advice that he was a suspect, his testimony was illegally obtained and the question of its use can be raised by a proper motion to suppress under sec. 955.09, Stats.

The decision in United States v. Thayer (D. C. Colo. 1963), 214 Fed. Supp. 929, relied on by the defendant, does not hold that testimony of a suspect obtained in an ex parte proceeding results in a jurisdictional defect. Assuming the testimony of the defendant can be excluded from consideration in determining jurisdiction for the making of the complaint and for the issuance of the warrant by the magistrate under sec. 954.025, there still remains the competent testimony of three other witnesses which relate to the counts in the complaint alleging misfeasance in office. The magistrate thus had jurisdiction on this testimony to act under sec. 954.025, in issuing the warrant and the arrest was not a nullity.

Defendant also argues his imprisonment is illegal because in violation of the Fifth and Fourteenth amendments of the United States constitution since he was entitled to immunity for testifying under sec. 325.24, Stats., except for perjury which is not charged. Under State v. Davidson (1943), 242 Wis. 406, 8 N. W. (2d) 275, the immunity of that statute applies only when the defendant claims his constitutional privilege against self-incrimination, which was not done by this defendant. The Davidson decision is not affected by any contrary federal standard interpreting the Fifth amendment. The decision of United States v. Monia (1943), 317 U. S. 424, 63 Sup. Ct. 409, 87 L. Ed. 376, construing a somewhat similar federal statute as providing an automatic immunity does not establish a federal standard applicable to the facts before us nor is it binding upon this court in its construction of what the Wisconsin legislature meant in creating sec. 325.24, Stats. Additionally, since the defendant’s right under the constitution may be waived, a violation of such right is not jurisdictional but judicial error, State ex rel. Isenring v. Polacheck (1898), 101 Wis. 427, 77 N. W. 708, and such errors may be governed by the harmless-error rule, Pulaski v. State, ante, p. 450, 129 N. W. (2d) 204.

Finally, the defendant argues the warrant was illegally issued and a nullity because the John Doe proceedings were illegal and no testimony can therefore be considered as a basis for the complaint. This argument is based upon the general manner in which the proceeding was conducted, its long duration, its multiplicity of purposes, the various violations of secrecy, and abuses of discretion on the part of the judge. The misuse of testimony and a violation of secrecy were criticized and condemned in State ex rel. Niedziejko v. Coffey (1964), 22 Wis. (2d) 392, 126 N. W. (2d) 96. None of the reasons advanced by the defendant seem to us to go to the validity of the John Doe proceeding. This is not to say a magistrate in conducting a John Doe proceeding cannot exceed his authority or lack of jurisdiction. We have recognized a magistrate may exceed his authority in such a proceeding. State ex rel. Jackson v. Coffey (1963), 18 Wis. (2d) 529, 118 N. W. (2d) 939. But on the record and as the matter is presented on this review, we cannot find the magistrate was without jurisdiction to issue a warrant for the defendant’s arrest. If there is any competent evidence of the commission of a crime and who committed it, the magistrate has jurisdiction. Whether such evidence or identification is sufficient to meet probable cause is a question of judicial error for the redress of which the defendant has adequate remedies other than habeas corpus.

By the Court. — The order directing the discharge of the defendant in error Raymond W. Fleming is hereby reversed and the action remanded with directions to quash the writ of habeas corpus and remand the defendant in error to custody of the plaintiff in error.

Heffernan, J., took no part.

Fairchild, J.

(concurring). I concur in the result and in that part of the opinion in which it is determined that the complaint filed January 8, 1964, was sufficient on its face to support the issuance of the warrant and the detention thereunder of defendant in error. I also agree that defendant in error can raise, by motion to suppress in the criminal action, his claim that his own testimony in the John Doe proceeding was illegally obtained. Should the alleged invalidity of the John Doe proceeding become material on the merits of the action, he can pursue his challenges then.

I feel, however, that I must respectfully record a differing view in one particular. The opinion of the court, in deciding that the complaint which initiated the John Doe proceeding was apparently broad enough to authorize investigation of failure to report traffic violation convictions, appears to hold that where information upon which a criminal complaint is based came from a John Doe proceeding, such complaint could not authorize the issuance of a warrant unless the magistrate had had jurisdiction to investigate the type of offense alleged. It does not seem to me that any provision of the statute nor any consideration of fundamental fairness requires that view, and I would look only to the sufficiency of the criminal complaint upon which the warrant was issued.

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


author: Hallows, J.

text:
    City of Milwaukee, Respondent, v. Thompson, Appellant.

      August 31

    September 29, 1964.

      For the appellant there was a brief by Roland J. Steinle, Jr., and Gregory Gramling, Jr., both of Milwaukee, and oral argument by Mr. Steinle.

      For the respondent there was a brief by John J. Fleming, city attorney, and Theophilus C. Crockett, assistant city attorney, and oral argument by Mr, Crockett.

   Hallows, J.

The urinalysis test showed- 22/100 of 1 percent of alcohol by weight in the defendant’s blood which amount under sec. 325.235 (1) (c), Stats., is prima facie evidence the defendant was under the influence of liquor. The defendant on this appeal contends: (1) That the proper test upon review where the trial court makes only a general finding of guilty is whether that finding is supported by the preponderance of the evidence, (2) that in the absence of the result of the urinalysis test the finding of the trial court is not supported by the'preponderance of the evidence; and (3) it was error for the trial court to consider the result of the urinalysis test and in any event the court should remit the case for further proceedings under its discretionary power of reversal.

The proper test of the court’s finding on appeal is whether the finding is against the great weight and clear preponderance of the evidence; if it is not, the finding should be affirmed. Milwaukee v. Johnston (1963), 21 Wis. (2d) 411, 124 N. W. (2d) 690; Shawano County v. Wendt (1963), 20 Wis. (2d) 29, 121 N. W. (2d) 300. But the defendant contends a mere finding of guilty of an ordinance violation is a general finding and comes under the rule announced in Weinhagen v. Hayes (1921), 174 Wis. 233, 178 N. W. 780, Damman v. Damman (1911), 145 Wis. 122, 128 N. W. 1062, and Closuit v. John Arpin Lumber Co. (1907), 130 Wis. 258, 110 N. W. 222. Those cases deal with a general finding when specific findings of fact were required by statute. The type of finding there discussed was not a true finding of fact but a hybrid composed of fact and a conclusion of law or a determination of whether the pleadings were or were not proven. The “against the great weight and clear preponderance” rule is not confined to specific findings of fact required in cases governed by sec. 270.33, Stats.

We do not consider a determination that the defendant violated a city ordinance prohibiting the operation of a motor vehicle while under the influence of an intoxicant to be a general finding within the rule contended for by the defendant. Such finding as in this case where the operation of the vehicle is not contested involves only the single question of whether the defendant was under the influence of liquor which he admittedly had drunk. In such a case unless a finding is against the great weight and clear preponderance of the evidence, it will be affirmed.

Defendant argues the result of the urinalysis test should not have been considered by the court because the city did not prove that in making the test the receptacle used by the defendant was uncontaminated. The city’s chemist on cross-examination testified that if the receptacle had been cleaned with alcohol or if the receptacle was not perfectly clean the accuracy of the test would be affected. We believe this argument to be immaterial and not controlling on this appeal because there is sufficient evidence to sustain the conviction even if the result of the urinalysis test is disregarded. Scientific tests and appreciable interference with one’s driving are not necessary for a conviction for driving a motor vehicle while under the influence of an intoxicant. Milwaukee v. Richards (1955), 269 Wis. 570, 69 N. W. (2d) 445 ; Milwaukee v. Johnston, supra.

It is undisputed that when the defendant stopped his car to talk to the arresting officer he slurred the words “Ambassador” and “Wisconsin,” he told the officer in response to a question that he had been drinking quite a bit in a tavern although he did not know its location, and he smelled strongly of alcohol. Both the arresting officer and another officer experienced in dealing with intoxicated people who observed the defendant at the station were of the opinion he was under the influence of intoxicating liquor. Such opinion evidence is competent. Milwaukee v. Johnston, supra; Odya v. Quade (1958), 4 Wis. (2d) 63, 90 N. W. (2d) 96. The defendant when he got out of the car at the arresting officer’s request staggered and had to support himself against the car; at the station the defendant did poorly in the balance test, walking test, finger-to-nose test, eye test, and the coin test.

Contrary to this evidence the defendant points out that nothing in the manner of operating his auto indicated the defendant was under the influence of an intoxicant, his conversation was courteous and made sense excepting for the one statement he had drunk “10 pounds” of brandy between 8 p. m. and 12:20 a. m., he was co-operative, he was not rowdy, abusive, and disrespectful, that his clothes were orderly and neat except that his sport shirt was not fully tucked in, and he was unable to do better on the alcohol-influence tests because of an arthritic back. The defendant also stresses he would not have stopped his car to ask a policeman direction to a hotel if he were drunk and possibly the officer did not consider the defendant under the influence of liquor because three times he offered to call a taxicab for the defendant to take him to his hotel. However, the defendant insisted he could drive and refused the offer.

While the court could draw inferences from such evidence, it does not constitute the great weight or clear preponderance of the evidence in favor of sobriety. Stopping to ask a policeman a direction does not prove a person is sober. Many people under the influence of liquor do not consider themselves to be. Not all persons who feel “the influence” become rowdies or ungentlemanly. The officer’s testimony that he offered to give the defendant a break by hiring a taxicab is consistent with the defendant’s being under the influence of liquor. Such solicitous and friendly treatment by the police officer and his good Samaritan offer ought not to be criticized. Time was when such practice was a more prevalent method of enforcement, at least in small towns.

The evidence sustaining the conviction is not only not against the great weight and clear preponderance of the evidence but clearly constitutes the preponderance of the evidence. In so holding, we have given little credence to the fact the defendant did not pass the test of repeating, “Around the rugged rock the ragged rascal ran;” even some sober people have difficulty with that tongue twister.

By the Court. — Order affirmed.


author: GoRdon, J.

text:
    Thompson and wife, Appellants, v. Sloan, Respondent.
    [Case No. 104.]

      August 31

    September 29, 1964.

      For the appellants there was a brief by John R. Craite and Thomas P. Doherty, both of Milwaukee, and oral argument by Mr. Craite.

    For the respondent there was a brief by Max M. Seidel-man, and oral argument by Tom E. Hayes, both of Milwaukee.
   GoRdon, J.

The judgment which was entered against Mr. Sloan had been duly scheduled in the bankruptcy proceedings. A discharge was granted to Mr. Sloan about one year after the entry of the original judgment against him. After the discharge in bankruptcy, there was a hearing in the county court, at which time the judgment creditors urged that this judgment against Mr. Sloan was based upon wilful and malicious conduct and, they argued, it was therefore not dischargeable in bankruptcy. Upon this appeal, we must determine the correctness of the order of the county court which ruled that the original judgment was based upon ordinary negligence rather than upon wilful and malicious conduct.

We have examined the complaint, as well as the evidence which was adduced at the default trial, and are persuaded that ordinary negligence was complained about, testified to, and determined by the court. The derelictions charged in the complaint sound exclusively in terms of carelessness and ordinary negligence. Under no reasonable interpretation of the complaint could it be said that wilful, wanton, or malicious acts are charged.

At the default hearing, a record was made wherein the ordinary carelessness on the part of Mr. Sloan was developed. At the conclusion of the testimony, the trial court said, “Judgment is ordered for negligence.”

Under the law of this state, the court is permitted to consider the entire record in determining whether a judgment is entitled to be discharged by reason of bankruptcy. Bastian v. LeRoy (1963), 20 Wis. (2d) 470, 478, 122 N. W. (2d) 386; Aetna Casualty & Surety Co. v. Lauerman (1961), 12 Wis. (2d) 387, 394, 107 N. W. (2d) 605; Estate of Weil (1946), 249 Wis. 385, 394, 24 N. W. (2d) 662; Klatt v. Helming (1946), 248 Wis. 139, 142, 21 N. W. (2d) 261. Using this standard, the trial court correctly concluded that the act of Mr. Sloan in instructing an unlicensed driver (his wife) to step on the starter was an act of carelessness and upon this record does not rise to the dignity of being wilful, wanton, or malicious.

Mr. Sloan’s acts fall considerably short of those described in Tinker v. Colwell (1904), 193 U. S. 473, 487, 24 Sup. Ct. 505, 48 L. Ed. 754; in that case, the United States supreme court discussed what acts might be considered wilful and malicious and stated:

“. . . a willful disregard of what one knows to be his duty, an act which is against good morals and wrongful in and of itself, and which necessarily causes injury and is done intentionally, may be said to be done willfully and maliciously, so as to come within the exception.”

We also conclude that Mr. Sloan’s conduct was not negligence of a high degree, or “gross negligence,” as that term was formerly used in this state. See Bielski v. Schulze (1962), 16 Wis. (2d) 1, 14, 114 N. W. (2d) 105. Mr. Sloan’s instruction to his wife resulted in the car’s starting, slipping into gear, and crashing into a concrete wall; but the serious results which occurred do not make the original blunder anything more than ordinary negligence. As Benjamin Franklin wrote in his Poor Richard’s Almanac (1757):

“A little neglect may breed great mischief: for want of a nail the shoe was lost; for want of a shoe the horse was lost; for want of a horse the rider was lost; being overtaken and slain by the enemy, all for want of a little care about a horseshoe nail.”

Mr. Sloan’s act falls within the framework of simple negligence, and thus the judgment based thereon is dis-chargeable in bankruptcy. Globe Indemnity Co. v. Granskov (1944), 246 Wis. 87, 16 N. W. (2d) 437; In re Byrne (2d Cir. 1924), 296 Fed. 98; Campbell v. Norgart (1944), 73 N. D. 297, 14 N. W. (2d) 260; Panagopulos v. Manning (1937), 93 Utah 198, 69 Pac. (2d) 614, rehearing denied (1937), 93 Utah 215, 72 Pac. (2d) 456; In re Grout (1914), 88 Vt. 318, 92 Atl. 646.

By the Court. — Order affirmed.


author: Gordon, J.

text:
    Thompson and wife, Appellants, v. Sloan, Respondent: First National Bank of Waukesha, Garnishee-Defendant.
    [Case No. 103.]

      August 31

    September 29, 1964.

      For the appellants there was a brief by John R. Craite and Thomas P. Doherty, both of Milwaukee, and oral argument by Mr. Doherty.

    For the respondent there was a brief by Max M. Seidel-man, and oral argument by Tom E. Hayes, both of Milwaukee.
   Gordon, J.

In a companion case decided today, Thompson v. Sloan, ante, p. 626, 130 N. W. (2d) 256, we have held that the judgment which is the basis of the instant garnishment was properly satisfied because of the judgment debtor’s having received a discharge in bankruptcy under sec. 17, sub. a. of the Bankruptcy Act (11 USCA, sec. 35 (a) (2)).

Since the underlying judgment was lawfully satisfied, the garnishment in aid of such judgment must necessarily fail. Jefferson Transfer Co. v. Hull (1918), 166 Wis. 438, 166 N. W. 1; Leonard v. Yohnk (1887), 68 Wis. 587, 32 N. W. 702; 1 Collier, Bankruptcy (14th ed.), p. 1588, sec. 17.05. There is no occasion, therefore, for our determining the question of the right to garnishee a jointly held bank account in connection with a debt owed by only one of the joint owners of such bank account. Other cases in which we have declined to resolve questions which would have no practical legal effect on the pending controversy are Fort Howard Paper Co. v. Fort Howard Corp. (1956), 273 Wis. 356, 77 N. W. (2d) 733; Swanson v. State Farm Mut. Automobile Ins. Co. (1953), 264 Wis. 274, 58 N. W. (2d) 664; Veitch v. Schlepp (1952), 262 Wis. 565, 55 N. W. (2d) 914.

By the Court. — Order affirmed.


author: Beilfuss, J.

text:
    Hurkman and others, Appellants, v. State, Respondent.

      August 31

    September 29, 1964.

      For the appellants there was a brief and oral argument by John E. Esler of Kaukauna.
    For the respondent the cause was argued by A. J. Fei-jarek, assistant attorney general, with whom on the brief were George Thompson, attorney general, and A. W. Ponath, corporation counsel of Outagamie county.
   Beilfuss, J.

Is there credible evidence to sustain the verdict ?

The plaintiffs contend the evidence of comparable sales, offered by the defendant through its experts, will sustain the jury’s after-taking value.

The defendant’s position is that evidence of comparable sales was not offered either to support the appraisals of its experts or as direct evidence of value but for the limited purpose of adding weight to the experts’ opinion.

While some jurisdictions receive evidence of comparable sales for the limited purposes of qualification of the expert witness and giving weight to his opinion, the majority, including Wisconsin, admit them for the additional purpose of being independent evidence of the value of the land in question.

In this instance the defendant offered the evidence of comparable sales without qualification as to its purpose after the competency of the expert witnesses had been established. The evidence was received by the court without limitation over the objection of the plaintiffs.

As part of the instructions to the jury the trial judge included the instruction on comparable sales which appears in Wis J I — Civil, Part II, 8120:

“There has been received into evidence testimony as to other sales as an aid to the jury, if such it be, in determining the fair market value of the property under consideration.
“In determining the weight and effect that is to be given to such other sales, you will consider all of the elements of similarity in situation and time and also all the elements of dissimilarity and determine how far such sales go to establish what was the fair market value of the property in question on the date of taking. However, before such evidence on comparable sales may be considered by you, you must be satisfied that such sales, themselves, meet the test of fair market value, as that term has, heretofore, been defined for you.
“Similarity, as used in this instruction, does not mean identical. No two parcels of land are exactly the same. A parcel of land is said to be comparable to another when there is a fair resemblance between them with respect to size, actual or potential use, location, improvements, and general features and characteristics.”

The Comment to this instruction provides:

“If evidence of comparable sales has been introduced for the purpose of qualifying an expert witness, this instruction should not be used. If such evidence is introduced as substantive evidence to establish value, then this instruction may be given.
“Smuda v. Milwaukee County, 3 Wis 2d 473, 477, 89 NW 2d 186 (1958); American States S Co v Milwaukee N R Co, 139 Wis 199, 120 NW 844 (1909); 5 Nicholson [sic] Eminent Domain (3d) § 21.3 (1952) (supp 1962) ; 1 Orgel on Valuation Under Eminent Domain (2d) § 138 (1953).
“As to similarity, see Stolze and wife v The Manitowoc Terminal Co, 100 Wis 208, 214, 75 NW 987 (1898); Washburn v Milwaukee & Lake Winnebago RR Co, 59 Wis 364, 377, 18 NW 328 (1884).”

It is clear that the trial court received the evidence of comparable sales as substantive evidence to establish the value of the land.

We take notice from the records of innumerable land-condemnation cases that opinions of ostensibly equally qualified experts as to values often vary to a substantial and irreconcilable degree. Considering the opinions of the experts alone, in these cases, can leave the jury with little rational basis for its ultimate findings. In these instances proper evidence of comparable sales can be of substantial aid to the jury in the performance of its obligation to find the true value.

The problem is illustrated by the evidence in this case. One of the plaintiffs and their three experts testified to before-taking values of $245,000, $243,000, $210,000, and $245,000, respectively, as contrasted to the opinions of defendant’s experts of $125,000 and $126,000.

The defendant offered in evidence these sales for the obvious purpose of establishing a lower before-taking value. The jury did find the before-taking value to be $135,000. If the jury considered the evidence of comparable sales in fixing upon a before-taking value, it probably considered the same evidence in determining the after-taking value. Under the evidence and instructions it had a right to do so.

The experts for the state were of the opinion that the after-taking value was equal to or exceeded the before-taking value because of the special benefits afforded to the land by reason of the improvement. Neither of these witnesses could give an after-taking value exclusive of special benefits.

The jury could, by reason of the testimony of Mr. Doer-fler, infer that there were no special benefits or that they were minimal. If it did so and gave weight to the comparable sales its finding of an after-taking value was $85,500 is within the credible evidence of the case.

We, therefore, conclude that there was sufficient credible evidence in the record to sustain the finding of the jury. The answer of the jury in the verdict should be reinstated, order granting a new trial reversed, and judgment rendered for the plaintiffs upon the verdict.

. This opinion should not be construed as restating or otherwise affecting the rules regarding admission of sales of other land as independent evidence of the value of the land in question. We express no opinion as to whether the sales offered in this case meet those tests. The defendant, who successfully offered these sales without limitation, cannot now be heard to claim that they were not in fact comparable sales or that they were to be used for a limited purpose.

By the Court. — Order reversed, and cause remanded with directions to reinstate the jury verdict and render judgment thereon for plaintiffs.

       5 Nichols, Eminent Domain (3d ed.), pp. 408-410, sec. 21.1, and pp. 417-436, sec. 21.3 [1] ; Bear v. Kenosha County (1963), 22 Wis. (2d) 92, 100, 125 N. W. (2d) 375; Smuda v. Milwaukee County (1958), 3 Wis. (2d) 473, 477, 89 N. W. (2d) 186; Blick v. Ozaukee County (1923), 180 Wis. 45, 46, 192 N. W. 380.


text:
    Petkus and others, Appellants, v. State Highway Commission, Respondent.

      September 1

    September 29, 1964.

      For the appellants there was a brief by Rieser, Stafford, Rosenbaum & Rieser of Madison, and oral argument by Willard S. Stafford.

    For the respondent the cause was argued by A. J. Fei-farek, assistant attorney general, with whom on the brief was George Thompson, attorney general.
   Beilfuss, J.

Plaintiffs concede that to be successful on this appeal they must overcome Mr. Gutschenritter’s testimony. They argue that his before and after-taking values were entitled to no weight because the factors he used in arriving at these values were general rather than special benefits and, therefore, not properly considered as offsets to damages. Sec. 32.09 (6), Stats.

Mr. Gutschenritter testified that the highest and best use of the land before taking was for agricultural purposes. After taking he considered the highest and best use of the land remaining to be for service facilities to the traveling public. At the corner of the property abutting the intersection of Highway 50 and Turkey Farm road there was, he thought, some potential at an indefinite time in the future for a commercial use before the taking. After the taking he thought the commercial potential of the corner was definite and immediate.

Plaintiffs argue that the Wisconsin definition of special benefits is restricted to actual physical improvement of the land, such as reclamation by draining land or other similar physical improvements. For this proposition plaintiffs rely on Washburn v. Milwaukee & Lake Winnebago R. Co. (1884), 59 Wis. 364, 18 N. W. 328. In that case the plaintiff Barker owned lot 7 on Main street in Oshkosh. His lot was 200 feet deep and had a store and outbuildings located upon it. The railroad took the rear 50 feet of his lot for its right-of-way. The trial judge instructed the jury that they might take into consideration any special benefits they found by reason of the location of a railroad depot near plaintiff’s property. No portion of the depot was constructed on land actually taken from Barker’s property. This court reversed on the ground that the location of the depot at a given point is a benefit accruing to the public generally and that as a matter of law there could be no special benefits accruing by reason of the location of the station.

“It would seem that a [special] benefit ... is one which enhances the value of the land affected by it, by improving its physical condition and adaptability for use; . . .” Washburn v. Milwaukee & Lake Winnebago R. Co., supra, page 377.

Compare with the rule of the Washburn Case the following instruction, approved by the court in Milwaukee & Mississippi R. Co. v. Eble (1851), 3 Pin. (Wis.) 334, 354:

“ ‘Your inquiry will be, what sum will make his farm as valuable as it would be if the railroad had passed over his neighbor’s farm, and not over his ? If the road is of general advantage to the neighborhood or town where the appellant lives, the appellant is entitled to share this common benefit with the rest of his fellow citizens. If, however, it is of any especial advantage to him; if it makes any particular lot more salable; if it drains some part of the land, or if it fertilizes some part, or if it opens an avenue to him not common to others, — all such and similar advantages and benefits should be considered by you, and be deducted from the damages which you may find.’ ”

The state argues that the rule of the Washburn Case is too restrictive. We are asked to substitute a definition of special benefits based on value accruing to the land because of its proximity to the public improvement.

We recognize that the Washburn rule, divorced from the facts of the case, ignores today’s economic realities and public necessities. In theory the definition urged by the state is acceptable; but great difficulties would arise in using it as a working rule. Thus the enhancement in value of areas in close proximity to a public improvement, such as an interstate highway, will in most instances include some increase because of the increased business activity in the community as a whole. This portion of the enhancement would be a general rather than a special benefit.

Special benefits are distinguished from general benefits in that they differ in kind rather than in degree from those which accrue to the public generally. 3 Nichols, Eminent Domain (3d ed.), p. 47, sec. 8.6203 [1]. It has been stated that any benefit, in order to be considered an offset in eminent-domain proceedings must accrue to the property itself as distinguished from the owner or his business. Tyson Creek R. Co. v. Empire Mill Co. (1918), 31 Idaho 580, 174 Pac. 1004; Hamilton v. Pittsburg, B. & L. E. R. Co. (1899), 190 Pa. 51, 42 Atl. 369; see Anno. 145 A. L. R. 7, at pages 80, 81, footnotes 250 and 251.

The able trial judge instructed the jury that a special benefit was one which enhanced the value of the land by improving its physical condition or adaptability for use. This instruction goes beyond the concept of special benefit as stated in the Washburn Case, supra. We agree that the definition of special benefits should be extended to include enhanced value because of more advantageous adaptability for use. Land which by reason of its proximity to a no-access highway interchange is enhanced in value because its highest and best use, assuming the completion of the public improvement, is immediately favorably changed or its potential for favorable change in use appears by reasonable probability to be imminent, is specially benefited.

If the condemnor claims a special benefit it is the duty of the condemnor to prove to a reasonable probability the time, nature, and extent of the special benefit. In order to prove an enhancement in value by change of use, of course, the condemnor will be required to show a reasonable probability that the use will be permitted by zoning regulations, if it is not already permitted. Hietpas v. State, post, p. 650, 130 N. W. (2d) 248. Here those portions of the land remaining in private ownership after the taking had already been rezoned prior to the taking.

The jury obviously gave Mr. Gutschenritter’s testimony more weight than that of plaintiffs’ experts. Mr. Gutschen-ritter testified to changes of use, which we have declared to be special benefits if they enhance the value of the land. The jury’s verdict is supported by the evidence.

Plaintiffs argue that the trial court erred in failing to instruct the jury that plaintiffs were entitled to just compensation. We do not consider the failure to give this instruction prejudicial error. Compensation paid for land taken and damages to the remainder in eminent domain should be just not only to the landowner but also to the state. Bauman v. Ross (1897), 167 U. S. 548, 17 Sup. Ct. 966, 42 L. Ed. 270.

Plaintiffs’ final assignment of error is that the trial court failed to advise the jury that in no event should special benefits be allowed in excess of damages. Sec. 32.09 (3), Stats. On the record before us we conclude that such an instruction would have served only to confuse the jury. The trial court properly applied the law to the facts as found by the jury.

By the Court. — Judgment affirmed.


text:
    Hietpas and wife, Appellants, v. State, Respondent.

      August 31

    September 29, 1964.

      For the appellants there was a brief and oral argument by Urban P. Van Susteren of Appleton.
    For the respondent the cause was argued by A. J. Fei-farek, assistant attorney general, with whom on the brief were George Thompson, attorney general, and A. W. Ponath, corporation counsel of Outagamie county.

       Motion for rehearing denied without costs, on November 24, 1964.

   Beilfuss, J.

Three issues are presented on this appeal:

(1) Are benefits, if any, resulting to the Hietpas property by reason of the construction of the interchange general or special benefits ?

(2) Was it prejudicial error to admit testimony of value for commercial use without showing a reasonable probability that zoning would be changed so as to permit that use?

(3) Was it prejudicial error to admit testimony concerning increase of value in properties constituting the quadrants of interchanges near Madison and Appleton because those areas were not comparable to Little Chute?

Special Benefits.

One of the principal contentions of the plaintiffs is that the benefits occurring to land by virtue of the public improvements, if any, were not special but general benefits as a matter of law and therefore not an offset.

Pertinent portions of sec. 32.09, Stats. 1961, are as follows:

“Rules governing determination of just compensation. In all matters involving the determination of just compensation in eminent domain proceedings, the following rules shall be followed:
“(3) Special benefits accruing to the property and affecting its market value because of the planned public improvement shall be considered and used to offset the value of property taken or damages under sub. (6), but in no event shall such benefits be allowed in excess of damages described under sub. (6).
“(6) In the case of a partial taking, the compensation to be paid by the condemnor shall be determined by deducting from the fair market value of the whole property immediately before the date of evaluation, the fair market value of the remainder immediately after the date of evaluation, assuming the completion of the public improvement and giving effect, without allowance of offset for general benefits, and without restriction because of enumeration but without duplication [to enumerated items of damage], . . .”

Plaintiffs argue in this action as the landowners did in Petkus v. State Highway Comm., ante, p. 643, 130 N. W. (2d) 253, that special benefits must be restricted to actual physical improvements of the land as stated in Washburn v. Milwaukee & Lake Winnebago R. R. Co. (1884), 59 Wis. 364, 18 N. W. 328. In the Petkus Case, supra, we extended the definition of special benefits to include “enhanced value because of more advantageous adaptability for use.” Special benefits accruing to land not taken in eminent-domain proceedings, which may be set off against damages if they enhance the market value immediately after taking of the land remaining, include physical improvements to the land, imminent adaptability of the land to a higher and better use from an economic standpoint because of proximity to the public improvement; and immediate adaptability by reason of proximity to the improvement to a use which was relatively remote in point of time before the taking, even though such use may have, to some degree, affected the market value of the land. Petkus v. State Highway Comm., supra.

Assuming the evidence presented on the question of special benefits to be otherwise admissible, we conclude the question of whether there was a special benefit and the extent thereof was for the jury and not a question of law as contended by the plaintiffs.

While the burden of proof as to damages in eminent domain rests upon the landowner, we consider the existence of special benefits to be a matter of affirmative defense. As to such benefits the burden of proof is upon the condemnor. The condemnor must show that the claimed special benefits are direct, immediate, and certain, both as to time and place; not remote or speculative.

In those cases where the question of special benefits is at issue, the form of verdict customarily used inquiring only as to the fair market value before and after the taking need not necessarily be changed to include a separate question on special benefits. We deem the burden of proof for this affirmative defense can be adequately covered in the court s instructions to the jury.

Zoning Change.

The defendant was permitted over objection to offer proof of a possible zoning change to permit an anticipated higher use of land after taking assuming the completion of the public improvement. The witness, Mr. Jacques, testified that he assumed zoning changes would be made to accommodate a higher use of the land. We conclude the trial court erroneously overruled the objection.

A prospective use prohibited by zoning regulations may not be considered. However, if it can be shown that there is a reasonable probability that the zoning regulations will be changed in the immediate future to accommodate such use, the trier of the fact may consider the prospective use in its consideration of special benefits. 4 Nichols, Eminent Domain (3d ed.), p. 236, sec. 12.322; 1 Orgel, Valuation Under Eminent Domain (2d ed.), p. 167, sec. 34; Anno. 173 A. L. R. 265.

In order to lay a proper foundation for the admission of testimony showing special benefits by reason of changed use to land remaining after a taking, it is necessary for the party claiming the special benefit to show that zoning regulations governing the land in question presently permit the changed use or that a reasonable probability exists that zoning in the near future will accommodate such a use. A mere possibility, or an assumption on the part of the witness is not enough and must be rejected as being speculative.

Evidence of Other Land Specially Benefited.

Over vigorous objection Mr. Sawtelle and Mr. Jacques were permitted to testify as to commercial development and enormously increased market value to land adjacent to access points on no-access highways in the Madison and Appleton areas. The objection was upon the ground of remoteness, namely, there was no showing of similarity either geographically or economically with the area surrounding Little Chute. We conclude the objection was well taken and should have been sustained.

It might have been possible for the state to lay a statistical foundation, that is, to show that the interchanges studied were selected at random; that they included the whole range of municipal-growth pattern in the state; and that a statistical trend with sufficiently high confidence limits was observed or that a statistically valid correlation existed between the economic area studied and the observed increase in market values. Nothing of this nature was done here.

We have determined that the record reveals erroneous rulings on the evidence. As set forth in sec. 274.37, Stats. 1961, the judgment is not to be set aside nor a new trial ordered unless the errors were prejudicial.

Sec. 274.37, Stats., reads :

“Judgments; application to reverse or set aside; new trial; reversible errors. No judgment shall be reversed or set aside or new trial granted in any action or proceeding, civil or criminal, on the ground of misdirection of the jury, or the improper admission of evidence, or for error as to any matter of pleading or procedure, unless in the opinion of the court to which the application is made, after an examination of the entire action or proceeding, it shall appear that the error complained of has affected the substantial rights of the party seeking to reverse or set aside the judgment, or to secure the new trial.”

The plaintiffs’ real complaint is not that after-taking value was too high, but the before-taking value was too low. The evidence shows before-taking values ranging from $48,000 to $21,000 and after-taking values from $30,000 to $21,000. The jury found the before-taking value to be $28,000 and the after-taking value to be $21,000. The improper testimony as to special benefits contemplating the completion of the improvement could not have affected the jury’s determination of the before-taking value. The errors in admission of testimony were not prejudicial to the plaintiffs. The verdict is supported by credible evidence and a new trial should not be ordered.

By the Court.- — -Judgment affirmed.

       29 C. J. S., Eminent Domain, pp. 1256, 1257, sec. 271, note 82.

       29 C. J. S., Eminent Domain, p. 1067, sec. 184.


author: Currie, C. J.

text:
    Parchia (Cora L.), Appellant, v. Parchia (Earl) and another, Respondents.

      September 1

    September 29, 1964.

      For the appellant there were briefs by Niven, Mullaney & Schoets of Milwaukee, and oral argument by David J. Schoets.

    For the respondents there was a brief by Hayes & Hayes of Milwaukee, and oral argument by Tom E. Hayes.

   Currie, C. J.

These two issues are presented by this appeal:

(1) Is there credible evidence to sustain the jury’s finding that defendant Parchia was grossly negligent in the operation of his automobile within the meaning of gross negligence as used in the Wyoming guest statute?

(2) If the foregoing question is answered in the affirmative, did the trial court abuse its discretion in finding inadequate the jury’s finding of $2,829.50 damages for plaintiff’s injuries and in fixing $8,500 as a reasonable amount to measure such damages ?

By footnote in Brunke v. Popp (1963), 21 Wis. (2d) 458, 461, 462, 124 N. W. (2d) 642, we called attention to Babcock v. Jackson (1963), 12 N. Y. (2d) 473, 191 N. E. (2d) 279, wherein the New York court abandoned the traditional choice-of-law rule that the substantive rights and liabilities arising out of a tortious occurrence are determined by the place of the tort and refused to apply Ontario’s guest statute to an automobile accident which had occurred in Ontario involving residents of New York. In lieu of the discarded rule the New York court adopted the principle that the controlling law to be applied was that of the state having the most significant contacts. We have concluded, however, that the instant case is not a proper one in which to consider the advisability of adopting the principle enunciated in the Jackson Case. In the first place, plaintiff acquiesced in trying her action on the theory that the Wyoming guest statute was applicable. Secondly, because of our conclusion that the verdict of the jury on the negligence issue must be sustained, any determination made with respect to the applicable choice-of-law rule would not affect the result.

Gross Negligence Issue.

Title 31, sec. 31-233, 1957 Wyoming statutes, provides:

“No person transported by the owner or operator of a motor vehicle as his guest without payment for such transportation shall have a cause of action for damages against such owner or operator for injury, death or loss, in case of accident, unless such accident shall have been caused by the gross negligence or wilful and wanton mis-conduct of the owner or operator of such motor vehicle and unless such gross negligence or wilful and wanton mis-conduct contributed to the injury, death dr loss for which the action is brought.”

A most thorough explanation of how the Wyoming court defines the term “gross negligence” as used in this statute is set forth in the recent case of McClure v. Latta (Wyo. 1960), 348 Pac. (2d) 1057. We quote therefrom as follows (p.1061):

“However, this court has heretofore provided the definition applicable to this jurisdiction, and there is no occasion to depart therefrom. In Arnold v. Jennings, 75 Wyo. 463, 296 P. 2d 989, 990, we defined gross negligence as indifference to present legal duty and utter forgetfulness of legal obligations. See also Hawkins v. L. C. Jones Trucking Co., 68 Wyo. 275, 232 P. 2d 1014. Prior to that time in Mitchell v. Walters, 55 Wyo. 317, 100 P. 2d 102, 107, we had quoted two cases from other states which accorded with our views:
“ ‘. . . Gross negligence is a manifestly smaller amount of watchfulness and circumspection than the circumstances require of a person of ordinary prudence. But it is something less than the willful, wanton and reckless conduct which renders a defendant who has injured another liable to the latter even though guilty of contributory negligence, or which renders a defendant in rightful possession of real estate liable to a trespasser whom he has injured. It falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure. . . . [Altman v. Aronson, 231 Mass. 588, 121 N. E. 505, 506, 4 A. L. R. 1185.] . . .’
“ .'. The element of culpability which characterizes all negligence is, in gross negligence, magnified to a high degree as compared with that present in ordinary negligence. Gross negligence is manifestly a smaller amount of watchfulness and circumspection than the circumstances require of a prudent man. But it falls short of being such reckless disregard of probable consequences as is equivalent to a willful and intentional wrong. Ordinary and gross negligence differ in degree of inattention, while both differ in kind from willful and intentional conduct which is or ought to be known to have a tendency to injure. [In Shaw, Adm’r v. Moore, 104 Vt. 529, 162 A. 363, 374, 86 A. L. R. 1139.]’ ”

Our Wisconsin definition of gross negligence was quite different from that adopted by the Wyoming court. In Twist v. Aetna Casualty & Surety Co. (1957), 275 Wis. 174, 178, 81 N. W. (2d) 523, in an opinion by Mr. Chief Justice Martin, this court stated:

“To constitute gross negligence there must be either a wilful intent to injure, or that reckless or wanton disregard of the rights and safety of another or his property, and that willingness to inflict injury, which the law deems equivalent to an intent to injure. Bentson v. Brown (1925), 186 Wis. 629, 633, 203 N. W. 380, 38 A. L. R. 1417.”

As pointed out in Bielski v. Schulze (1962), 16 Wis. (2d) 1, 15, 114 N. W. (2d) 105, under the view enunciated in the more recent Wisconsin cases, ordinary negligence lay in the field of inadvertence, but gross negligence lay in the field of actual or constructive intent to injure. Thus under the Wisconsin view, gross negligence differed in kind from ordinary negligence. The view of many other courts, is that the two do not differ in kind but only in degree and gross negligence is merely negligence of an aggravated character. See Comment, An Analysis of Gross Negligence, 37 Marquette Law Review (1954), 334, 339. It is apparent from the above quotation from McClure v. Latta, supra, that the Wyoming court holds the latter view.

While the Bielski Case abolished the concept of gross negligence in negligence cases arising under Wisconsin law, that holding is entirely inapplicable to a situation where a Wisconsin court applies the substantive law of another state.

We will now review the evidence adduced at the trial to ascertain whether it will support the jury’s finding that defendant Earl Parchia was grossly negligent under the Wyoming court’s definition of gross negligence.

After visiting with friends at Compton, California, during the afternoon and evening of August 26, 1960, plaintiff and her husband (hereinafter the “defendant”) began their journey back to Wisconsin about midnight that same evening. Defendant did all the driving. He drove continuously from midnight to 4 p. m., August 27, 1960, stopping only for gas. Plaintiff and defendant stayed at a motel from 4 p. m. to 11 p. m., when they arose and resumed their journey. During this seven-hour period, defendant had the car checked and filled with gasoline; he was awakened several times during his attempt to sleep by noise from an adjoining restaurant and from trucks on a nearby highway; he showered and shaved prior to 11 p. m.

Plaintiff and defendant left the motel around 11 p. m. and drove to Salt Lake City, Utah, where they stopped to eat. At the restaurant defendant had his half-pint thermos filled with coffee. The parties resumed their journey around midnight. Plaintiff, sitting in the front seat, was advised by defendant to relax and go to sleep. Between Salt Lake City and Wamsutter, Wyoming, defendant made one stop for gasoline without getting out of the car. Except at the gasoline stop, plaintiff slept during the entire journey on the morning of the accident. Defendant drove and listened to the radio until about 4 a. m. when he began to feel drowsy. Thereupon he began to sip coffee. After the coffee' was consumed defendant continued to get drowsy and at various intervals he would lower the window to relieve the drowsiness. He was unable to keep the window down because of the cold mountain air. With the window closed his drowsiness returned and as a result he nearly ran into the rear end of a preceding station wagon. He avoided colliding with it by swerving around and passing it. He testified that he was traveling at a speed of about 75 miles per hour. In spite of the near collision defendant felt he could make it to Rawlins, Wyoming. After passing the station wagon he observed a sign which he thought read, “16 miles to Raw-lins.” After he passed the sign, he did not remember anything until the accident. Defendant’s car missed a curve in the road and struck a truck which was parked on a service area adjoining the highway. Defendant awakened after the impact of the accident, finding himself in a prairie off the highway.

In applying the Wyoming guest statute, the Wyoming court apparently has not been called upon to decide whether a driver who falls asleep at the wheel after repeated warnings of drowsiness may be guilty of gross negligence if so found by a jury verdict. However, as appears from McClure v. Latta, supra, Wyoming follows the Massachusetts definition of gross negligence as stated in Altman v. Aronson (1919), 231 Mass. 588, 121 N. E. 505, 4 A. L. R. 1185. We assume, therefore, that any decision of the Massachusetts court which applies such definition to a situation of a driver falling asleep after having experienced drowsiness, would be followed by the Wyoming court. The Massachusetts court in Flynn v. Hurley (1955), 332 Mass. 182, 185, 124 N. E. (2d) 810, dealt with this problem and summarized the holdings of the applicable Massachusetts cases as follows:

“In Carvalho v. Oliveria, 305 Mass. 304, 305-306 [25 N. E. (2d) 764, 765], it was said, Without undertaking to lay down a rule that falling asleep is always evidence of gross negligence, at least it may be said that the danger of driving while heavy with drowsiness is so extreme and so self-evident that one who, with knowledge that he is in that condition, persists in driving without making the necessary effort fully to arouse himself can be found to be grossly negligent.’ This language has been quoted with approval in subsequent decisions. Belletete v. Morin, 322 Mass. 214, 217 [76 N. E. (2d) 660]; Mullaney v. White, 329 Mass. 464, 466 [109 N. E. (2d) 158]. See also Moore v. Patrone, 298 Mass. 198, 200 [10 N. E. (2d) 69]. In all of these cases, where it was held that a finding of gross negligence was warranted, there was evidence of intermittent drowsiness or sleep. In other' words, there was something more than mere falling asleep. It is possible that sleep may sometimes overtake its victim unawares and we think that it would be going too far to say that falling asleep without more is evidence of gross negligence. To the extent that the case of Blood v. Adams, 269 Mass. 480 [169 N. E. 412], is authority for the proposition that merely falling asleep at the wheel is evidence of gross negligence we are not disposed to follow it. We prefer the rule enunciated in Carvalho v. Oliveria.”

The record in this case presented a jury issue as to whether defendant Parchia persisted in driving while affected with drowsiness without making, the necessary effort to fully arouse himself. Upon viewing the facts that defendant continued to drive after nearly striking the station wagon and that thereafter he fell asleep, the jury could infer that the sipping of the half pint of coffee and the intermittent lowering of the window to let in cool air was an insufficient effort by defendant to fully arouse himself. We conclude, therefore, it was error for the trial court to have directed a verdict.

Inadequacy of Damages.

In its memorandum opinion the trial court stated that, had liability been established, it would have applied the rule of Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393, and ordered a new trial as to damages with an option to defendants to accept judgment against them wherein the damages for personal injuries would be increased from $2,829.50 to $8,500. If the rule of the Powers Case is applicable to inadequate jury awards of damages with the option being extended to the defendant to accept judgment for a reasonable amount in lieu of a new trial, then the issue before the court is confined to determining whether the trial court abused its discretion in determining that $2,829.50 was inadequate and $8,500 was a reasonable amount. Boodry v. Byrne (1964), 22 Wis. (2d) 585, 126 N. W. (2d) 503, and Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis. (2d) 568, 571, 117 N. W. (2d) 660.

While subsequent to our decision in Powers our court has never directly applied the rule of that case to an inadequate jury award of damages, this court stated in Cordes v. Hoffman (1963), 19 Wis. (2d) 236, 241, 120 N. W. (2d) 137:

“The plaintiffs contend the damages awarded Mary E. Cordes were inadequate and ask this court under Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393, to extend an option for an additur to the defendants in the amount determined by this court. If this court agreed with the plaintiffs that the amount of damages was inadequate it could exercise its power to determine the reasonable amount of damages under the Powers Case and grant a new trial with an option to the defendants to accept judgment against them for such amount.”

The above statement was approved in Dodge v. Dobson (1963), 21 Wis. (2d) 200, 204, 124 N. W. (2d) 97. See also Wilkie, Personal Injury Damage Verdicts, 47 Marquette Law Review (1963-1964), 368; Ghiardi, Personal Injury Damages — Excessive or Inadequate Awards, Vol. 1, No. 2, Wisconsin Continuing Legal Education (April 1961), p. 27; Carlin, Remittiturs and Additurs, 49 West Virginia Law Quarterly (1942-1943), 1; Comment, Correction of Damage Verdicts by Remittitur and Additur, 44 Yale Law Journal (1934 — 1935), 318. With respect to whether a plaintiff can be heard to complain about defendant’s election to accept the option and permit judgment to be entered against him for a larger amount than awarded by the jury, see Anno. 56 A. L. R. (2d) 213.

The trial court in its memorandum opinion carefully and fairly reviewed the evidence bearing on plaintiffs damages for personal injuries. Plaintiff’s injuries can be summarized as follows: Broken left arm; both ankles broken; damage to her left foot and to bones in that foot; a fracture in the right shoulder and right hip; 24 inch in length and %2 inch in width scar in the subauricular area; a 24-inch loop-shaped scar containing a pedicle flap also in the subauricular area; a lj4 inch in length and % inch in width hyper-trophic scar over the horizontal ramus of the mandíbula of the jawbone; a 1J4 inch in width and 1 inch in length horizontal scar below the right eye; a 24 inch in length and hairline in width perpendicular scar somewhat indurated in the right facial oral groove; a 1 inch in length and 24 inch in width friction-type scar in the right forehead area; a scar in the submental area, under the left side of her chin which extended into the left submandibular area. The medical testimony indicated that there would be a five percent permanent disability to the right foot, and that the scars on the face would be permanent. Plaintiff had suffered substantial pain for some time following the accident and continued to have occasional pain in the left leg, ankle, and foot at time of trial. At the time the accident occurred she was thirty years of age and a teacher in the Milwaukee public schools.

On this record we find no abuse of discretion in the trial court’s determining that $2,829.50 was an inadequate award for plaintiff’s personal injuries, and that $8,500 would be a reasonable amount to award for such damages. Therefore, there must be a new trial directed as to damages with an option to defendants in lieu thereof to elect to have judgment entered against them for a larger amount than awarded by the jury.

If it were not for the $10,000 policy limit of the defendant insurance company’s policy the option amount exclusive of costs and interest would be $11,670.50 (the $8,500 determined by the trial court as a reasonable sum for plaintiffs personal injuries plus the $3,170.50 awarded by the jury for loss of earnings). However, because of the complication of the $10,000 policy limit, the option figure with respect to defendant insurance company cannot exceed $10,000 exclusive of interest and costs. Furthermore, plaintiff in the prayer of her complaint only demanded $10,000 damages and may not be desirous of having judgment entered against her husband in excess of that amount. In view of these complications the cause will be remanded for the trial court to fashion the option to be included in the order for new trial.

By the Court. — Judgment reversed, and cause remanded with directions to reinstate the verdict with respect to the issues of negligence, and to enter an order for a new trial on the issue of damages only, such order to include an option to the defendants to permit judgment to be entered against them in an amount to be fixed by the circuit court, all consistent with this opinion.

       The rule with respect to granting an option in connection with an order for a new trial directed because of. an inadequate verdict, which existed prior to Powers v. Allstate Ins. Co., supra, is to be found in Bohlman v. Nelson (1958), 5 Wis. (2d) 77, 92 N. W. (2d) 345; Risch v. Lawhead (1933), 211 Wis. 270, 248 N. W. 127; Reuter v. Hickman, Lauson & Diener Co. (1915), 160 Wis. 284, 151 N. W. 795. The option extended was to the plaintiff to accept the least amount that an unprejudiced jury properly instructed would probably find. In Gosczinski v. Carlson (1914), 157 Wis. 551, 147 N. W. 1018, the trial court extended the option to the defendant to elect to permit judgment to be entered against him for a larger amount than the jury awarded, but the supreme court found it unnecessary to pass on the issue of whether this constituted error.


author: Heffernan, J.

text:
    Wisconsin Mutual Insurance Company, Appellant, v. Manson, Commissioner of Insurance, Respondent.

      September 1

    September 29, 1964.

      For the appellant there was a brief by Wheeler, Van Sickle, Day & Goodman of Madison,. and oral argument by Roland B. Day.

      For the respondent there was a brief by Chame & Tehan and Robert E. Tehan, Jr., all of Milwaukee, and oral argument by Robert E. Tehan, Jr.

   Heffernan, J.

The surplus notes which are the bases of the respective claims of appellant and respondent were executed pursuant to the authority of sec. 201.17 (2), Stats. 1955. That subsection of the statute makes the acceptance of the terms imposed therein a condition for the issuance of surplus notes. Whether the notes issued pursuant to statute are presently payable depends upon the meeting of the conditions set forth in the statute. Sec. 201.17 (2) provides:

“Any mutual insurance company may borrow money from any officer, member or other person, for the purposes of its business or to enable it to comply with any requirement of law. No discount, commissions or promotion expenses shall be allowed or paid on such loan. Upon receiving the full amount of the principal to be used solely for such purposes, the company may issue its surplus notes, which shall fully recite the conditions of the loan; provided that no such notes shall be issued by any such company or be paid, discharged or retired in whole or in part without pridr approval of the commissioner of insurance, and no surplus note or notes shall be issued by any mutual insurance company unless it accepts the requirements imposed by this subsection. Except as herein provided, such notes and indebtedness shall not be a liability or claim against any of the assets of the company. The principal and interest shall be payable only from the surplus over all other liabilities. The amount of principal and interest unpaid shall be reported in each annual statement. Surplus notes issued pursuant to the provisions of this section shall not be deemed a security within the meaning of the term as defined in chapter 189 and the provisions, of said chapter shall not apply to such surplus notes.”

Two points set forth therein and which are incorporated into the terms set forth on the face of the notes are determinative of this case.

(1) No notes shall be paid in whole or in part without the prior approval of the Commissioner of Insurance.

(2) These notes shall not be a claim against the assets of the company, and the principal' and interest shall be payable only from surplus over all liabilities.

The performance of the obligation or payment of a promissory note is essentially the satisfaction of a contractual obligation, and the terms of the contract control unless they are in violation of sound public policy (11 Am. Jur. (2d), Bills and Notes, p. 29, sec. 1). In this case the contract, the note, is framed in the very words of the legislature’s declaration of public policy as set forth in the statutes.

It' is clear that the commissioner has not consented to the payment of the notes of Market Mens received by Wisconsin Mutual. He, in fact, is the party resisting the payment, as well he should, since the statute and the note make it clear that payment shall be made only out of surplus and not out of the assets. As was aptly stated In re Mid-Continent Mut. Ins. Co. (1945), 246 Wis. 460, 462, 17 N. W. (2d) 602: “There was no such surplus out of which to pay them, else why liquidation?”

In the instant case there is admittedly no surplus. To allow the offset, as against the liquidator’s claim, of the not yet matured note held by Wisconsin Mutual, would be the use of an asset (the obligation of Wisconsin Mutual to Market Mens), to satisfy the claim for payment of surplus notes held by Wisconsin Mutual.

The appellant herein contends that the statutory liquidation of an insurance company is an equitable proceeding and that therefore the equitable setoff should apply. Wisconsin cases make it clear that the application of the principle of “equitable setoff” is largely within the discretion of the trial court. Mattek v. Hoffmann (1956), 272 Wis. 503, 76 N. W. (2d) 300.

In the instant case the trial court in the exercise at its discretion held that the principle should not be applied. The application of the principle of setoff in this case would result in preferring the claim of Wisconsin Mutual over other creditors. By its agreement, as embodied in the notes, the holder consents to be one of the last to be paid, yet here it asserts a priority that cannot be sustained by its contract, or by law, equity, or reason. Even the authorities appellant cites emphasize that the principle of equitable setoff is to be applied “where no equities of other claimants are shown to exist.” We cannot on the facts before us assume that there aire no existing equities of other claimants or that the trial judge abused his discretion in this respect.

Wisconsin has from an early date followed the rule that a claim not yet due cannot be set off against a claim already due. Oatman v. Batavian Bank (1890), 77 Wis. 501, 46 N. W. 881. In that case a depositor of a bank became insolvent and made an assignment of his assets for the benefit of creditors. The assignee brought an action to obtain the deposit. The bank attempted to set off the amount of the depositor’s promissory note to the bank that was not yet payable. We held that note not being due at the date of the assignment was not a proper setoff against the amount of the deposit. As we stated in Mattek, supra, page 507, in discussing the Oatman Case, “We went far beyond that and held directly that an unmatured debt could not be set off against a matured one.” Sec. 331.07, Stats., lays down the conditions of legal setoff. Sec. 331.07 (3) provides that the demand “must have existed” at the time of the commencement of the action. The statute now contains the same language in effect when Oatman v. Batavian Bank was decided. We said then “. . . the setoff in all cases must be due, and it makes no exception in favor of banks or on account of insolvency; . . Oatman v. Batavian Bank, supra, page 503.

We find no abuse of discretion on the part of the learned trial judge in failing to enlarge on equitable principles the statutory right of setoff. Doubtless occasions can arise when the trial court in its discretion may properly permit such setoff. See In re Milwaukee Commercial Bank (1940), 236 Wis. 105, 294 N. W. 538. However, no equitable principles were violated.

It is undisputed that Wisconsin Mutual is financially able to pay its interest obligation out of surplus and has been directed by the Insurance Commissioner to do so, it has been withholding payment only because it believes that it had a valid claim and setoff. It has not.

By the Court. — Order affirmed.


author: FaiRchild, J.

text:
    Sensenbrenner, Plaintiff and Appellant, v. Keppler, Defendant: Wolter, Executrix, Defendant and Respondent.

      September 1

    September 29, 1964.

      For the appellant there was a brief by Cape & Oberwetter of Milwaukee, and oral argument by Charles W. Cape.

    For the respondent there was a brief and oral argument by Albert J. Cirilli of Rhinelander.
   FaiRchild, J.

1. Timeliness of application. In 1865, this court held that where a judgment debtor was prejudiced by an irregularity in the conduct of a sale on execution, the debtor’s remedy was to apply within a reasonable time and have the sale set aside.

In 1867, the court said:

“Undoubtedly a reasonable time must be some time within the period fixed by the law for a redemption. If that period is allowed to expire, and a deed to be executed, the application cannot afterwards be made, unless under special circumstances of fraud or mistake, showing some reasonable excuse for the delay; and then it must be made to a court of equity.”

At a time when the statutory period of redemption was two years, this court held that twenty months’ delay in making an application, based upon irregularities in the sale, was unreasonable.

In the cases where this court has approved or directed the setting aside of a sale, upon application made after the period of redemption, the applicant has shown not only inadequacy of .price and irregularity in procedure, but has also shown that he was ignorant of the sale until after the period of redemption had expired, and had applied promptly after learning of it.

We conclude that where an application to set aside a sale of real estate on execution is made after expiration of the period of redemption, it is to be denied unless the applicant shows special circumstances of fraud or mistake, amounting to a reasonable excuse for delay. Although one of the elements of the defense of laches in a court of equity is that the granting of relief would, by reason of the delay, prejudice the party asserting laches, the burden in the type of proceeding before us is upon the late applicant to excuse delay, and not upon the opponent to establish all the elements of laches.

Sensenbrenner presented affidavits of his wife, son, and attorney, as well as his own. They set forth a number of immaterial statements as to ill will between Wolter and the Sensenbrenners. Other allegations, all in general terms, are that the sheriff, former county judge, and Wolter have impeded Sensenbrenner’s attempts to pay the judgment; that local attorneys have refused to represent Sensenbrenner because of Wolter’s political standing; that the county judge put Sensenbrenner in jail during the period of redemption (for several days, as indicated by the record) ; that Sensen-brenner’s family has had hardships and financial difficulties. Sensenbrenner’s attorney stated- he had found defects (unspecified) and confusion in the court records.

Sensenbrenner stated in his affidavit, signed in 1962, that the real estate obtained by Wolter “is valued” in excess of 10 times the amount paid at the sales in 1956 and 1957.

The affidavits of Wolter and the sheriff assert the sales were fairly conducted; that Sensenbrenner was present and made no objection. Wolter stated'that in bidding he took into consideration that the interest bought was an undivided half interest with Mrs. Sensenbrenner as cotenant, and that partition would be necessary.

As stated by Sensenbrenner, the claim of inadequacy of price as of the time of sale is vague. Moreover, even upon a timely application to set aside a judicial sale or a sale on execution, where the matter is deemed to rest in the sound discretion of the court, a sale will not be set aside simply because the price obtained is inadequate unless the inadequacy is so gross as to raise a presumption of fraud, unfairness, or mistake.

The claim that Sensenbrenner was present at both sales is not controverted. He had one year in which to redeem by paying the sale price with interest. He failed to redeem and waited five years after the expiration of the redemption period in one case, and more than four years in the other before making his application. Under the applicable rules it is clear that no reasonable excuse has been offered.

2. Property in custodia legis. Sensenbrenner claims that the sales, at least the sale in 1957, could not be valid because a receiver was appointed in supplementary proceedings on execution upon the same judgment December 12, 1956. Appellant argues that property in the custody of the court, through receivership, could not be subjected to execution sale. The order appointing the receiver, except for a possibly ambiguous reference to “equitable interests, rights” clearly dealt only with personal property. In any event, Sensenbrenner is concluded, by his delay, from raising the point, whether or not the receiver would be in a position to raise it.

3. Omission of testimony. Apparently Sensenbrenner asked the court to hear testimony when the motion was argued, but the court declined, reserving testimony to a further hearing, if held. We assume that the court intended to take testimony if, after consideration of the affidavits and the applicable law, there appeared to be issues as to material facts, requiring testimony for resolution.

A party does not have an absolute right to present testimony on a motion. Sec. 269.32 (1), Stats., requires that a notice of motion or order to show cause specify the irregularities complained of. Sec. 269.32 (3) authorizes the taking of testimony on the hearing of a motion. We have said that this authorization is “in order to resolve an issue of fact, the determination of which is necessary or proper in order to decide a motion.” The court has discretion in the matter. Sensenbrenner’s affidavits did not make a sufficient showing to entitle him to relief, and there was no abuse of discretion in declining to hear testimony.

By the Court. — Order affirmed.

Beilfuss, J., took no part.

         Bunker v. Rand (1865), 19 Wis. 271, 276 (*253, *258).

         Raymond v. Pauli (1867), 21 Wis. 538, 541 (*531, *534); Raymond v. Holborn (1868), 23 Wis. 57, 62.

        Foster v. Hall (1878), 44 Wis. 568, 569.

        Grede v. Dannenfelser (1877), 42 Wis. 78; Kissinger v. Zieger (1909), 138 Wis. 368, 376, 120 N. W. 249.

       See 21 Am. Jur., Executions, p. 297, sec. 616.

        Diehl v. Dunn (1961), 13 Wis. (2d) 280, 286, 108 N. W. (2d) 519; Greenfield v. West Milwaukee (1956), 272 Wis. 215, 232, 75 N. W. (2d) 424; Estate of Seefeldt (1957), 1 Wis. (2d) 509, 516, 85 N. W. (2d) 500; Estate of Korleski (1964), 22 Wis, (2d) 617, 622-623, 126 N. W. (2d) 492.

         Gumz v. Chickering (1963), 19 Wis. (2d) 625, 633-635, 121 N. W. (2d) 279, and cases there cited.

       Sec. 272.39, Stats.

        Bloomquist v. Better Business Bureau (1962), 17 Wis. (2d) 101, 103, 115 N. W. (2d) 545.