author: Currie, C. J.

text:
    Dombrowski, Appellant, v. Tomasino and wife, Respondents.

      March 31

    April 27, 1965.

      For the appellant there was a brief and oral argument by Kenneth J. Dunlap of Milwaukee.
    For the respondents there was a brief by McCormick & Tessmer of Milwaukee, and oral argument by John E. McCormick and Henry A. Tessmer.

   Currie, C. J.

It is fundamental that a jury verdict in an equitable action is merely advisory. Sager v. Hannemann (1959), 6 Wis. (2d) 285, 289, 94 N. W. (2d) 612. In the early case of Stahl v. Gotzenberger (1878), 45 Wis. 121, 123, 124, this court outlined the proper method of procedure where a jury is utilized in an equitable action as follows :

“In all equitable actions the case must be tried by the court, and, before judgment can be entered, the court must find that all the facts necessary to entitle the plaintiff to a judgment have been established by the evidence. If either party desires that any issues of fact which have been made by the pleadings should be tried by a jury, and the judge deems such issues proper ones to be submitted to a jury in order to aid him in the determination of the same, he may direct them to be so tried; or the judge may upon his own motion direct certain issues to be so tried. In every such case, the particular issues which are to be so tried should be fixed and agreed upon before the jury is called. The jury then try only the issues so submitted, and not the whole case. When the jury have given their verdict, the case is then to be taken up by the court; and if the court is satisfied with the determination of the jury upon the issues submitted to them, he adopts their findings as to such issues. If he is not satisfied with the findings of the jury, he may, either upon the application of a party or of his own motion, set aside such verdict and submit such issues to another jury; or, if he is satisfied that no aid will be obtained by such further submission, he may proceed to decide the issues without any further intervention of a jury.”

See also Cram v. Bach (1957), 1 Wis. (2d) 378, 83 N. W. (2d) 877, 85 N. W. (2d) 673.

We deem the use of a motion for directed verdict is inappropriate where a jury is utilized in an equitable action to pass on certain fact issues. After having had the evidence presented to a jury, a party is free to move that the jury be dispensed with and that the court determine the facts without benefit of the jury’s verdict. Also, after a verdict is returned, a party may also move that the court reject the verdict and find the facts differently. However, in either the situation where the court dispenses with the jury or rejects the verdict, it is incumbent upon the court to make and file findings of fact. No formal findings of fact were entered in the instant case. In the absence of formal findings of fact, statements of fact appearing in the trial court’s memorandum opinion are accorded the status of findings of fact. Seelandt v. Seelandt (1964), 24 Wis. (2d) 73, 79, 128 N. W. (2d) 66, and cases cited. However, as hereinafter pointed out, we have been unable to spell out findings of fact in the memorandum decision essential to sustain the judgment.

The gist of plaintiff’s cause of action is that defendants represented that plaintiff’s name would be included as a grantee in the deed to the lot upon which the house was constructed or that plaintiff and his wife would be entitled to reside in the premises as long as they might live; that defendants when making such representation had no intention of performing the same; and that plaintiff poured money and labor into the project of purchasing the lot and constructing the house in reliance on these representations.

Fraud cannot be predicated on unfulfilled promises in the absence of intent not to perform present at the making of the promise. See Suskey v. Davidoff (1958), 2 Wis. (2d) 503, 507, 87 N. W. (2d) 306, and cases cited. There is no such a requirement of a present intent not to perform if the remedy sought is a constructive trust to avoid unjust enrichment.

We deem that the first issue to be determined is whether the trial court’s memorandum opinion contains any express finding with respect to whether defendants made any promise to plaintiff that his name would be included in a deed to the premises or that he and his wife would be permitted to live there for the remainder of their lives. We conclude that it does not. The statement in the memorandum opinion, “Although less obvious, the evidence fails to meet this test [burden of proof in fraud cases] with respect to the first element.as well,” is ambiguous. Merely because plaintiff’s testimony with respect to defendants’ representations was uncorroborated by other direct testimony did not prevent it being clear, satisfactory, and convincing if believed by the trial court. We do not know from the quoted statement in the memorandum opinion whether the trial court did not believe plaintiff’s testimony, or whether, believing such testimony, it found plaintiff had failed to establish that defendants had a present intent of not performing their promises when they made them.

The principal reason given in the memorandum opinion for directing a verdict against plaintiff was the trial court’s conclusion that plaintiff was not entitled to rely on defendants’ promises, if made. Therefore, the second issue to be resolved is whether this determination by the trial court precludes plaintiff from recovering a judgment. There is some authority in our past decisions that an essential element of fraud is the right to rely on the alleged false representations. Benz v. Zobel (1949), 255 Wis. 542, 39 N. W. (2d) 713; In re Acme Brass & Metal Works (1937), 225 Wis. 74, 272 N. W. 356. We are of the opinion that this is not an essential element of constructive trust when grounded upon a confidential relationship, if there existed actual reliance by the promisee upon the promise made by the promisor. The mere relationship of son-in-law and daughter to plaintiff did not create a fiduciary relationship. 39 Am. Jur., Parent and Child, p. 743, sec. 98; Burns v. Nemo (1960), 252 Iowa 306, 105 N. W. (2d) 217. However, this factor of relationship coupled with plaintiff’s age, lack of education, and the turning over of his savings to defendants without receiving any writing of any kind therefor, would support a finding of a confidential relationship sufficient to support a constructive trust.

For Wisconsin cases on constructive trusts, see Estate of Massouras (1962), 16 Wis. (2d) 304, 114 N. W. (2d) 449; Joerres v. Koscielniak (1961), 13 Wis. (2d) 242, 108 N. W. (2d) 569; Nehls v. Meyer (1959), 7 Wis. (2d) 37, 95 N. W. (2d) 780; Masino v. Sechrest (1954), 268 Wis. 101, 66 N. W. (2d) 740; Schofield v. Rideout (1940), 233 Wis. 550, 290 N. W. 155, 133 A. L. R. 834. While the cases on constructive trust are usually concerned with a situation where there is breach of duty to convey the entire interest of the defaulting promisor in a particular parcel of real estate, we can perceive of no reason why the same principle should not apply to a breach of duty to convey a partial interest such as a life estate.

Defendants rely upon plaintiff’s statement in one place in his testimony that he did not believe Phillip Tomasino’s promise made at the broker’s office on April 28, 1955, that Phillip would have the title changed into plaintiff’s name the following Monday. In this connection defendants cite our holding in Peters v. Kell (1960), 12 Wis. (2d) 32, 42, 106 N. W. (2d) 407, that representations made to one who knows them to be false cannot be relied upon by him. Here plaintiff testified to repeated promises made by defendants after April 28, 1955, to place title in his name. The issue with respect to this aspect of the case is not whether plaintiff had a right to rely on the alleged promises made by defendants, but did he rely thereon? With respect to this issue there is no express finding of fact made in the trial court’s memorandum opinion.

We conclude that the case must be remanded in order for the trial court to make express findings of fact on these two issues:

(1) Did the defendants make any promises to plaintiff with respect to any of the following: (a) Placing title to the premises in his name so he would be a co-owner; (b) granting plaintiff a life estate in the premises; or (c) permitting plaintiff and his wife to occupy the downstairs premises during their lives ?

(2) If any such promise was made by defendants, did plaintiff advance money and labor in reliance thereon?

If both of these issues are resolved in favor of plaintiff, the trial court can then fashion a proper remedy by way of imposing such a constructive trust on the premises as will prevent an unjust enrichment of defendants at the expense of plaintiff. It will be discretionary in the trial court whether or not to take any additional testimony or other evidence.

Our review of the evidence causes us to conclude that any finding which the trial court may make upon the present record with respect to the two issues for which the case is remanded for findings will not be against the great weight and clear preponderance of the evidence.

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


source: Caselaw Access Project

author: Fairchild, J.

license: Public Domain

text:
    Schilz, by Guardian ad litem, and another, Respondents, v. Walter Kassuba, Inc., Appellant.

      March 31

    April 27, 1965.

      For the appellant there was a brief by Prosser, Zimmer-mann & Wiedabach, attorneys, and James W. Lane of counsel, all of Milwaukee, and oral argument by Mr. Lane.

    For the respondents there was a brief by Henry L. Arnold, attorney, and Jerome F. Byrne, guardian ad litem, both of Milwaukee, and oral argument by Mr. Arnold.

   Fairchild, J.

Plaintiff contends she has alleged the elements of a cause of action upon the attractive-nuisance theory, which permits a child of tender years to recover, under certain circumstances, whether or not she is a trespasser. There is no claim that the four pipes presented a sufficient hazard so that defendant would be liable to plaintiff if she were mature, whether an invitee, licensee, or trespasser.

The attractive-nuisance doctrine had its origin in the 1841 English case of Lynch v. Nurdin. Recovery was allowed where a seven-year-old child climbed upon a cart left unattended on the road and was injured while descending when the cart moved. The impetus for its adoption by American courts was the 1874 United States supreme court case of Sioux City & P. R. Co. v. Stout. There recovery was permitted where a child was injured while playing with an unguarded, unlocked turntable on defendant’s premises. Later cases have often referred to the attractive-nuisance doctrine as the “turntable” doctrine.

The attractive-nuisance doctrine is grounded in negligence. It was applied in Angelier v. Red Star Yeast & Products Co. decided in Wisconsin in 1934. Paraphrasing the Angelier Case, the court in Nechodomu v. Lindstrom set forth the elements of the cause of action as follows:

“ (1) ‘. . . that the former maintained, or allowed to exist, upon his land, an artificial condition which was inherently dangerous to children being upon his premises.’ . . .
“(2) ‘. . . that he knew or should have known that children trespassed or were likely to trespass upon his premises.’
“(3) ‘. . . that he realized or should have realized that the structure erected or the artificial condition maintained by him was inherently dangerous to children and involved an unreasonable risk of serious bodily injury or death to them.’ . . .
“(4) ‘. . . that the injured child, because of his youth or tender age, did not discover the condition or realize the risk involved in going within the area, or in playing in close proximity to the inherently dangerous condition.’ . . .
“(5) ‘. . . that safeguards could reasonably have been provided which would have obviated the inherent danger without materially interfering with the purpose for which the artificial condition was maintained.’ . . .”

There is some question whether the allegations of the complaint, even when construed with the required liberality, ful-fil element (5) above set forth. In all other respects, it would appear that the necessary allegations are present or inferable if the presence of the four pipes can be said to be “inherently dangerous to children” and to involve “an unreasonable risk of serious bodily injury or death to them.” It is true, of course, that the complaint does not use the words “inherently dangerous to children,” but the words “of a dangerous character with respect to children of tender years” appear to us to be a sufficiently close approximation.

The real question appears to be whether “four large black pipes extending approximately twelve (12) to fifteen (15) inches above the ground level” in an accessible area can be deemed inherently dangerous to children even if alleged to be so. We infer from the complaint that the pipes are sufficiently close together that a child might step or jump from one to another and think it fun to do so, and that, although the complaint says the pipes are large, they are of such diameter that a child might easily lose his balance while standing on one, or slip off while attempting to step or jump from one to another. The risk involved in doing so was simple and obvious. Indeed the challenge offered by the risk of falling is probably what provided the fun. There is no suggestion of any surprising danger, such as instability of the pipes, or unusual slipperiness.

This court has recognized as conditions “inherently dangerous to children” in areas where children were known to play: An electric power line sagging over a lumber pile; a rapidly revolving shaft; a trough through which boiling refuse was discharged; a heavy gate attached to a road scraper, left raised from the ground so that it fell when released; the drum of a mixing machine with an open top and revolving blades. An ice truck from which a child fell was held not to be a dangerous instrumentality under the attractive-nuisance doctrine.

We have said that the term “inherently dangerous,” which we use in this context, means the same as “highly dangerous” or “per se dangerous,” used elsewhere.

We have pointed out that: “The question whether a condition is inherently dangerous to children involves the question whether the danger is such as would be obvious to children.”

In a comment to the rule as set forth in the Restatement, it is said: “The duty . . . does not extend to those conditions the existence of which is obvious even to children and the risk of which is fully realized by them.”

In a tentative draft of Restatement of Torts (2d), this comment appears:

“There are many dangers, such as those of fire and water, or of falling from a height or into an excavation, which under ordinary conditions may reasonably be expected to be fully understood and appreciated by any child of an age to be allowed to [sic] large. To such conditions the rule stated in this Section ordinarily has no application, in the absence of some other factor creating a special risk that the child will not avoid the danger, such as the fact that the condition is so hidden as not to be readily visible, or a distracting influence which makes it likely that the child will not discover or appreciate it.”

Many decisions by courts of other jurisdictions have denied recovery for injury to a child caused by a fall from an object or structure maintained by defendant, often noting that falling was a risk obvious to children and that there was no hidden danger. The objects or structures in these cases were as follows: A railroad overpass or similar structure; retaining walls; a playground slide or swing; roofs; buildings under construction; fences; ladders; steps; lumber pile; scaffold, and stool in shoe store.

In other cases involving a fall, recovery has been allowed. It would be difficult to reconcile every decision. It appears generally to be the rule that a child is bound to appreciate a simple and obvious danger of falling from an object or structure, but is not bound to appreciate a danger presented or exaggerated by a defect in the structure or other peculiar circumstance, which is hidden from the child or which a child would fail to appreciate because of his immaturity.

We conclude that an allegation that the four pipes, as described in the instant complaint, were inherently dangerous to children is a conclusion, not admitted by demurrer, and that as a matter of law plaintiff must be held to knowledge and appreciation of the obvious risk of falling from the pipes even though the complaint alleged she was unaware of it. Our decision does not preclude the circuit court from allowing plaintiff to plead over if -she is able to allege additional facts which, consistent with this opinion, show an inherently dangerous condition.

By the Court. — Order reversed, cause remanded for further proceedings.

       (1841), 1 Q. B. 29, 113 Eng. Reprint 1041. See Anno. 36 A. L. R. 34, 46. See also Townsend v. Wathen (1808), 9 East 277, 103 Eng. Reprint 579, 9 Revised Rep. 553.

       (1874), 84 U. S. (17 Wall) 657, 21 L. Ed. 745. See Prosser, Law of Torts (2d ed.), p. 440, sec. 76.

       See Anno. 36 A. L. R. 34, 51 et seq.; Prosser, Law of Torts (2d ed.), p. 439, sec. 76.

        Smith v. Jefferson (1959), 8 Wis. (2d) 378, 99 N. W. (2d) 119.

       (1934), 215 Wis. 47, 254 N. W. 351.

       (1955), 269 Wis. 455, 456, 457, 69 N. W. (2d) 608.

        Meyer v. Menominee & Marinette Light & Traction Co. (1912), 151 Wis. 279, 138 N. W. 1008.

        Herrem v. Konz (1917), 165 Wis. 574, 162 N. W. 654.

        Angelier v. Red Star Yeast & Products Co., supra, footnote 5.

        Britten v. Eau Claire (1952), 260 Wis. 382, 51 N. W. (2d) 30.

        Nechodomu v. Lindstrom, supra, footnote 6.

        Coffey v. Oscar Mayer & Co. (1948), 252 Wis. 473, 32 N. W. (2d) 235.

         Massino v. Smaglick (1958), 3 Wis. (2d) 607, 612, 89 N. W. (2d) 223.

        Nechodomu v. Lindstrom (1956), 273 Wis. 313, 326, 77 N. W. (2d) 707, 78 N. W. (2d) 417.

       Restatement, 2 Torts, comment b, p. 922, sec. 339.

       Tentative Draft No. 5, Restatement, Torts (2d), p. 83, sec. 339, ch. 13. See Prosser, Law of Torts (2d ed.), p. 441, sec. 76, ch. 15,

        McHugh v. Reading Co. (1943), 346 Pa. 266, 30 Atl. (2d) 122, 145 A. L. R. 319; Hocking v. Duluth, Missabe & Iron Range R. Co. (1962), 263 Minn. 483, 117 N. W. (2d) 304, 317; Davis v. Goodrich (1959), 171 Cal. App. (2d) 92, 340 Pac. (2d) 48; Schroeder v. Texas & Pacific R. Co. (Tex. Civ. App. 1951), 243 S. W. (2d) 261; Berwert v. Atchison, Topeka & Santa Fe R. Co. (Mo. 1956), 289 S. W. (2d) 112; Fourseam Coal Corp. v. Greer (Ky. 1955), 282 S. W. (2d) 129.

        Hageage v. Dist. of Columbia (1914), 42 App. D. C. 109; Coon v. Kentucky & Indiana Terminal R. Co. (1915), 163 Ky. 223, 173 S. W. 325; Kayser v. Lindell (1898), 73 Minn. 123, 75 N. W. 1038; State ex rel. Kansas City v. Ellison (1920), 281 Mo. 667, 220 S. W. 498; Kravetz v. B. Perini & Sons (3d Cir. 1958), 252 Fed. (2d) 905.

        Gleason v. Pittsburgh Housing Authority (1946), 354 Pa. 381, 47 Atl. (2d) 129; Severance v. Rose (1957), 151 Cal. App. (2d) 500, 311 Pac. (2d) 866.

        Cooper v. Pittsburgh (1957), 390 Pa. 534, 136 Atl. (2d) 463.

        Williams v. Overly Mfg. Co. (1943), 153 Pa. Super. 347, 34 Atl. (2d) 52; Coughlin v. United States Tool Co., Inc. (1958), 52 N. J. Super. 341, 145 Atl. (2d) 482; Prickett v. Pardridge (1914), 189 Ill. App. 307; Brennan v. Kaw Construction Co. (1954), 176 Kan. 465, 271 Pac. (2d) 253.

         Neal v. Home Builders, Inc. (1953), 232 Ind. 160, 111 N. E. (2d) 280, 286; State v. Bealmear (1925), 149 Md. 10, 130 Atl. 66; Labore v. Davison Construction Co. (1957), 101 N. H. 123, 135 Atl. (2d) 591, 64 A. L. R. (2d) 966; Miller v. Guernsey Construction Co. (Fla. App. 1959), 112 So. (2d) 55.

         Brown v. Scranton (1933), 313 Pa. 230, 169 Atl. 435.

        Neal v. Home Builders, supra, page 288, footnote 22; Heva v. Seattle School Dist. No. 1 (1920), 110 Wash. 668, 188 Pac. 776, 9 A. L. R. 267.

        O’Callaghan v. Commonwealth Engineering Corp. (1928), 247 N. Y. 127, 159 N. E. 884.

        Hunter v. J. C. Turner Lumber Co. (D. C. Fla. 1960), 187 Fed. Supp. 646.

        Lopez v. Capitol Co. (1956), 141 Cal. App. (2d) 60, 296 Pac. (2d) 63; Crawford v. Cox Planing Mill & Lumber Co. (Ark. 1964), 383 S.W. (2d) 291.

        J. C. Penney Co. v. Clark (Okla. 1961), 366 Pac. (2d) 637.

       See Chase v. Luce (1953), 239 Minn. 364, 58 N. W. (2d) 565; Helguera v. Cirone (1960), 178 Cal. App. (2d) 232; 3 Cal. Rptr. 64; Woods v. City and County of San Francisco (1957), 148 Cal. App. (2d) 958, 307 Pac. (2d) 698; Atlantic Peninsular Holding Co. v. Oenbrink (1938), 133 Fla. 325, 182 So. 812; Perrin v. Rainwater (1938), 186 S. C. 181, 195 S. E. 283; Greene v. DiFazio (1961), 148 Conn. 419, 171 Atl. (2d) 411; Krause v. Almor Homes, Inc. (1962), 149 Conn. 614, 183 Atl. (2d) 273; Diglio v. Jersey Central Power & Light Co. (1956), 39 N. J. Super. 140, 120 Atl. (2d) 650, and Stevens v. Ohio Fuel Gas Co. (1960), 92 Ohio L. Abs. 1, 193 N. E. (2d) 317.


author: Hallows, J.

text:
    Kessler, Appellant, v. Industrial Commission and another, Respondents.

      March 31

    April 27, 1965.

      For the appellant there was a brief and oral argument by Stephen /. Hajduch of Milwaukee.
    For the respondent Industrial Commission there was a brief and oral argument by Arnold I. Spencer, chief counsel of the unemployment compensation division.
   Hallows, J.

The plaintiff recognizes the findings of the Industrial Commission cannot be set aside on appeal in the absence of fraud if there is sufficient credible evidence or reasonable inferences which support the findings. Grant County Service Bureau v. Industrial Comm. (1964), 25 Wis. (2d) 579, 131 N. W. (2d) 293; Cooper’s, Inc., v. Industrial Comm. (1962), 15 Wis. (2d) 589, 113 N. W. (2d) 425; and Marathon Electric Mfg. Corp. v. Industrial Comm. (1955), 269 Wis. 394, 69 N. W. (2d) 573. The plaintiff also recognizes the equally well-established rule that where the evidentiary facts are not in dispute but permit of different inferences the drawing of one of such inferences is a finding of fact within the province of the Industrial Commission. Gant v. Industrial Comm. (1953), 263 Wis. 64, 56 N. W. (2d) 525. This court has held, however, and the plaintiff rests his case on the proposition that if the evidentiary facts are not in dispute and permit of only one reasonable inference, the drawing of that inference is a question of law and not of fact. Brown v. Industrial Comm. (1960), 9 Wis. (2d) 555, 101 N. W. (2d) 788; Gregory v. Anderson (1961), 14 Wis. (2d) 130, 109 N. W. (2d) 675; Cutler-Hammer, Inc., v. Industrial Comm. (1961), 13 Wis. (2d) 618, 109 N. W. (2d) 468.

It is contended on this record by the plaintiff that only one reasonable inference can be drawn, namely, that his quitting of his job was with good cause attributable to the employer. The “compelling personal reason” basis was not stressed below or on this appeal and in fact is based on identical facts constituting the alleged good cause attributable to the employer.

Good cause attributable to the employer as a basis for unemployment compensation under sec. 108.04 (7) (b), Stats., has been the subject of prior decisions of this court. In Western Printing & Lithographing Co. v. Industrial Comm. (1951), 260 Wis. 124, 50 N. W. (2d) 410, we stated the resignation must be occasioned by “some act or omission by the employer” constituting a cause which justifies the quitting. Good cause for quitting attributable to the employer as distinguished from discharge must involve some fault on his part and must be real and substantial. 81 C. J. S., Social Security and Public Welfare, pp. 253-256, sec. 167. A transfer or shift in jobs occasioned by decreased work in an assembly department due to the reduction in demand for defense production is not a good cause for quitting even though there would be a temporary reduction in salary, but the employee’s seniority would be unaffected. Dentici v. Industrial Comm. (1953), 264 Wis. 181, 58 N. W. (2d) 717. Similarly a transfer in job status necessitated by lack of work in a welding department which shift would reduce the salary but not affect seniority was not a good cause for quitting in Roberts v. Industrial Comm. (1957), 2 Wis. (2d) 399, 86 N. W. (2d) 406. In that case we pointed out that one of the purposes of the unemployment compensation statute was to minimize the loss of income from unemployment due to the fault or the misfortune of the employer but the statute was not intended to provide relief when reasonable work was available which the employee can but will not do.

The plaintiff claims the record shows that when he commenced his employment as plant superintendent in the small manufacturing plant of the defendant he devoted about 75 percent of his time to plant duties and 25 percent to so-called paper work; that over the years the paper work demanded considerably more time and encroached on his plant supervision. Plaintiff was in charge of safety in the plant. Several serious accidents occurred because of the failure of machine operators to use safety devices. In 1962 the president wrote a memo to the plaintiff which in effect held the plaintiff responsible for the lack of safety practices and threatened discharge if another serious accident occurred. The plaintiff also claims a lack of communication had developed between him and the president.

Sometime in 1960 a Mr. Norton was hired as sales manager and on November 1, 1962, he was promoted to vice-president in charge of sales and production, thus making him in effect the plaintiff’s superior. On November 3d at the plaintiffs request a conference was held with the president. During this conference the plaintiff was told he would receive no further bonuses. Bonuses had been paid the plaintiff and nonproduction employees since 1958 in varying amounts. They were not a part of the salary contract but were paid at the discretion of the board of directors. It was after this conference the plaintiff resigned.

At the hearing a statement (Exhibit 4) of the plaintiff, given in an interview with the commission concerning his reasons for quitting the company, was put in evidence. It is quite apparent from this statement the plaintiff disliked Mr. Norton, did not consider him a good sales manager, was disturbed when Mr. Norton’s name was mentioned and disappointed when Mr. Norton was promoted and made the plaintiff’s superior. Without detailing any further evidence it is quite clear the evidentiary facts give rise to reasonably conflicting inferences and are not of such a compelling nature that only the plaintiff’s version could be reasonably inferred.

The Industrial Commission drew the inference the plaintiff was dissatisfied with the action of the employer in promoting Mr. Norton, in criticizing him for plant accidents, and in discontinuing bonuses. We cannot hold this was an unreasonable inference or that the facts compelled the drawing of a contrary inference. Cheese v. Industrial Comm. (1963), 21 Wis. (2d) 8, 123 N. W. (2d) 553. These activities of the defendant employer were within the prerogative of management and do not constitute a good cause for the plaintiffs quitting his employment.

At the hearing the plaintiff was refused permission to call the president of the defendant company adversely before he himself took the stand. The plaintiff contends he was entitled to adversely examine the defendant’s president at the start of the proceeding, the same as he would in a civil trial in a court of record. The Industrial Commission in its decision recognizes the procedure relating to adverse examination of the parties as established and followed in proceedings before courts of record is an efficient procedure and an acceptable practice at hearings under ch. 108 of the statutes. However, the commission considered the time when an opposing party might be adversely examined in a hearing to be within the discretion of the hearing examiner. In this case the trial examiner allowed the plaintiff to adversely examine the president of the defendant company after the plaintiff testified.

Since the conduct of the hearings is governed by general commission rules under sec. 108.09 (5) (a), Stats., and such rules (sec. Ind-UC 140.05, 3 Wis. Adm. Code) provide the rules of practice at hearings shall conform generally to those used in equity proceedings, we would consider the plaintiff did have a right to examine the defendant’s president adversely prior to the plaintiff’s taking the stand on his own behalf. Under these rules it is not discretionary with the examiner to control the order of presenting witnesses. However, the plaintiff has not shown any prejudice from the procedure adopted by the examiner. The basis for the commission’s findings rests essentially on the plaintiff’s own statement of his reasons for quitting given to the commission on January 22, 1963 (Exhibit 4) rather than on the testimony of the president of the defendant company.

Plaintiff contends the commission erred in refusing to grant his request for an adjournment of the hearing in order to subpoena the minute book of the employer. The president of the defendant then testified he had told the plaintiff at the conference he was not going to receive further bonuses. At the hearing the president testified the bonuses were under study by the board of directors and no action had been taken with respect to 1962-1963 bonuses. In hopes of impeaching the president’s statement that there would be no bonuses, the plaintiff asked for an adjournment of the hearing and for permission to obtain a copy of the board of directors’ minutes and resolution, if any. The proposed examination of the corporate minutes was in the nature of a fishing expedition, the request for which under the circumstances the examiner could refuse without abusing his discretion.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.


author: GordoN, J. Hallows, J.

text:
    Newberger, Plaintiff and Appellant, v. Pokrass and another, Executors, Defendants: Lumbermens Mutual Casualty Company, Defendant and Respondent.

      March 31

    April 27, 1965.

      For the appellant there was a brief by Stern & Lee of Milwaukee, and oral argument by lames F. Stern.

    For the respondent there was a brief by Arnold, Murray & O’Neill of Milwaukee, and oral argument by Suel 0. Arnold.

   GordoN, J.

Direct-Action Against Insurer.

The principal question before us is whether an airplane is a motor vehicle within the meaning of sec. 260.11 (1), Stats.

In Gridley v. Cardenas (1958), 3 Wis. (2d) 623, 89 N. W. (2d) 286, there was an airplane accident in Florida, and, although the action was brought in Wisconsin, it was determined that Florida law controlled. An issue was presented as to whether an airplane was a motor vehicle under the Florida guest statute. This court concluded that the term “motor vehicle” did not include an aircraft, stating, at page 627:

“The Florida guest statute was enacted and made applicable to ‘motor vehicles’ in 1937. We do not believe that in that year it was common and approved usage in Florida any more than here, to refer to an airplane as a motor vehicle, and we think that the term was commonly used to describe vehicles propelled by motor power on land, of the nature of the automobile, motor truck, and motorcycle. In the absence of anything definitely persuasive to the contrary, we shall therefore hold for purposes of the present demurrers, that sec. 320.59, Fla. Stats., does not apply to aircraft.”

In McBoyle v. United States (1931), 283 U. S. 25, 26, 51 Sup. Ct. 340, 75 L. Ed. 816, the United States supreme court held that an airplane was not a motor vehicle within the meaning of the National Motor Vehicle Theft Act. For other cases holding that an airplane is not a motor vehicle see Byrd v. Piedmont Aviation, Inc. (1962), 256 N. C. 684, 124 S. E. (2d) 880; Estate of Hayden (1953), 174 Kan. 140, 254 Pac. (2d) 813; Rich v. Finley (1949), 325 Mass. 99, 89 N. E. (2d) 213.

The appellant urges that an aircraft is a motor vehicle which is operated on a “highway in the sky.” There is a poetic charm to this contention, but we do not believe that it is consonant with the narrower meaning which this court has given to the term “motor vehicle” in Rice v. Gruetzmacher, ante, p. 46, 133 N. W. (2d) 401; Snorek v. Boyle (1962), 18 Wis. (2d) 202, 118 N. W. (2d) 132; Smedley v. Milwaukee Automobile Ins. Co. (1961), 12 Wis. (2d) 460, 107 N. W. (2d) 625; and Gridley v. Cardenas (1958), 3 Wis. (2d) 623, 89 N. W. (2d) 286.

In our recent decision in Rice v. Gruetzmacher, supra, we did not reach the question whether the insurer of a self-propelled land vehicle (e.gan automobile) which was primarily designed to transport people or goods upon a highway could be sued directly in the event such a vehicle had an accident off a highway. In Rice, we observed that a forklift was in “a class of self-propelled land vehicles which are designed primarily for uses dissimilar to transporting or drawing persons or property upon a highway” (emphasis added) ; such a vehicle, we held, is not a motor vehicle under the direct-action statutes unless operated upon a highway at the time of the accident. Since the Rice Case was concerned with a certain type of land vehicle, its ruling is not directly determinative of the case at bar.

However, in view of the restrictive nature of this court’s decisions concerning sec. 260.11 (1), Stats., and also in view of our ruling in Gridley v. Cardenas, supra, we now expressly hold that an airplane in flight is not a motor vehicle under sec. 260.11 (1). Therefore, the trial court was correct in dismissing the action against the insurer since direct-action against it is barred by the policy.

Appealability of the Order.

The circuit court’s order dismissed the action against the insurer. Upon this appeal, the insurer, as respondent, has questioned the appealability of such order. The dismissal resulted from the court’s sustaining a plea in abatement. In Cottrill v. Pinkerton (1931), 206 Wis. 218, 239 N. W. 442, it was held that an order denying a plea in abatement was not an appealable order; the court went on to say, at page 219:

“. . . if the plea in abatement had been sustained it would have prevented a final judgment in the action, in which event the order would have been appealable under the express provisions of said section.”

Also, in Prochnow v. Northwestern Iron Co. (1914), 156 Wis. 408, 409, 145 N. W. 1098, 145 N. W. 1104, it was stated that an order resulting from a plea in abatement which dismissed the action as to one of the defendants was appeal-able. The order in the instant case dismissed the action as to one of the defendants and, as such, is appealable.

By the Court. — Order affirmed, with costs to the respondent.

Hallows, J.

(concurring). The majority opinion seemingly restricts the character of an airplane as not being a motor vehicle only while “in flight” and to imply it might be considered a motor vehicle under other circumstances. I do not think an airplane is a motor vehicle within the meaning of sec. 260.11 (1), Stats., whether it is in flight, taxiing on the ground for a takeoff or for a landing, when making an emergency landing on a public highway, or otherwise. When used as an airplane, whether on the ground or in the air, it is not a motor vehicle; and I cannot imagine an airplane being either designed or used as a motor vehicle on land.


author: Wilkie, J. Currie, C. J.

text:
    Neumann, Plaintiff, v. Wisconsin Natural Gas Company and others, Defendants: Travelers Indemnity Company, Defendant and Appellant: Heuser, Defendant and Respondent. Farmers Mutual Automobile Insurance Company, Plaintiff, v. Same, Defendants: Same, Defendant and Appellant: Same, Defendant and Respondent.

      April 1

    April 27, 1965.

      For the appellant there was a brief by Hippenmeyer & Reilly of Waukesha, and oral argument by Richard S. Hippenmeyer.

      For the respondent there was a brief by Love, Davis & McGrow of Waukesha, and oral argument by Robert T. McGrow.

       Motion for rehearing denied, with costs, on June 25, 1965.

   Wilkie, J.

Two issues are presented on this appeal:

First, can appellant be named as a party defendant under the direct-action statutes ?

Second, assuming respondent is liable in any degree for damages resulting from the explosion, does the insurance policy cover his liability ?

Direct Action Against Travelers.

Appellant Travelers Indemnity Company can be named properly as a party in this action only if the “Hy-Hoe” excavation unit is a motor vehicle pursuant to the direct-action statutes, sec. 260.11 (1) and sec. 204.30 (4). The policy contains the usual no-action clause. Paragraph 3 (b) declares that unless otherwise stated, the word “automobile” is deemed to mean “motor vehicle.” Subparagraph (3) then eliminates the “Hy-Hoe” from this category by declaring:

“The following described equipment shall be deemed an automobile while towed by or carried on an automobile as above defined solely for purposes of transportation or while being operated solely for locomotion, but not otherwise: if of the non-crawler type, any power crane or shovel, ditch or trench digger; . . .”

Respondent urges that the premium provisions of the policy support the conclusion that the “Hy-Hoe” unit was considered a motor vehicle like the truck itself. A rider to the policy specifically describes the truck and excavating unit. Premiums are extended for four of the seven coverages, namely: “Bodily Injury Liability,” “Property Damage Liability,” “Comprehensive,” and “Collision.” A typewritten notation “Truck only” appears in a box labeled “Rate **.” The double asterisks indicate that the rate is “Applicable to such of the Comprehensive, Fire, Theft and Windstorm coverages as may be afforded with respect to the automobile.” Respondent contends that the coverage on the truck is thus limited to the four named coverages while the “Hy-Hoe” is afforded protection under all seven categories. Appellant contends that the words “Truck only” indicate that the designated coverage applies only to the truck and that there is no coverage under any category for the “Hy-Hoe.” The rider is ambiguous. Resolving ambiguities in favor of the insured, we believe that an entirely different construction is most reasonable, namely, that the “Collision” coverage is limited to the truck while both the truck and the “Hy-Hoe” are covered under the other three named categories. In any event, however, this construction does not mean that the “Hy-Hoe” is deemed an automobile or motor vehicle under the policy.

Even if the policy did not expressly provide that the “Hy-Hoe” was not a motor vehicle, the present facts would nonetheless be controlled by Smedley v. Milwaukee Automobile Ins. Co. Smedley involved an action for personal injuries caused by the negligent operation of a hydraulic crane which was mounted on a truck chassis. In discussing whether or not the operation of the crane was the operation of a motor vehicle within the meaning of sec. 260.11 (1), Stats., the court said:

“It is undoubtedly true if the unit were being driven on a public street for the purposes of locomotion, it would be considered a motor vehicle. In the record there are several photographs and a lithograph of this unit. Arbitrarily classifying it either as a truck or a hydrocrane without reference to a particular use does not solve the problem. When the unit is in locomotion for the purpose of transporting the crane, it takes on the essential aspects of a motor vehicle for some purposes. However, after the unit arrives at its destination, the mobile aspect ceases and the crane is operated as an independent immobile unit. The test under the statutes is whether at the time of the accident the unit is being- used, managed, controlled, or operated as a motor vehicle in the ordinary meaning of those words. At the time of the accident the unit was stationary, the crane was stabilized, supported, and rendered immobile by outriggers. The unit was not then used as a motor vehicle. Plaintiff was injured by the operation of the crane, not the operation of the truck. We do not believe such use of the unit is within the meaning of the negligent operation, management or control of a motor vehicle as used in sec. 260.11, Stats.”

A similar result was reached in Norton v. Huisman where the plaintiff was injured by a rod which was connected to a self-powered sewer-cleaning machine which in turn was attached to a truck chassis.

Respondent argues that Smedley and Norton are not applicable because in the instant case the truck was positioned in the street abutting the Neumann property. The amended complaint contains an allegation to this effect. But Smedley and Norton both hold that where the negligence is in the operation of independent machines they are not “motor vehicles” within the meaning of sec. 260.11 (1), or sec. 204.30 (4), Stats., and direct action against the insurance company is not permitted. The fact that here the truck may actually have been situated on the street is not decisive where the operation of the independent machine is the alleged cause of the accident. Norton implicitly holds to this effect since in that case the truck upon which the sewer-cleaning device was mounted was always parked in the street.

To connect the accident with the operation of the truck as distinguished from the “Hy-Hoe” unit and thus to permit direct action against Travelers, respondent asserted for the first time on oral argument that the gas main could have been severed by the pressure exerted when the truck moved back and forth over the filled-in trench to pack down the dirt. There is no specific allegation to this effect in the complaints or in the stipulated facts. Even if the plaintiffs were permitted to amend their complaints to make this allegation, if that indeed is their theory of one alternative way in which the accident occurred, any such negligence on the part of Heuser would not be covered by the policy as hereinafter discussed and thus joinder of Travelers would be unavailing. The crucial question, whether direct action against Travelers is permitted or not, is whether the Travelers’ policy covered the alleged negligence of respondent.

Policy Coverage.

At oral argument counsel for both sides indicated that even if Travelers were not a proper party defendant they desired to have the coverage question resolved on this appeal. Thus, any prematurity in resolving the coverage question has been waived.

Involved is an ordinary comprehensive liability policy which covered damages Heuser became obligated to pay as the result of personal injury (Coverage A) or property damage (Coverage C) caused by an accident. Travelers’ liability was to be subject to the “exclusions, conditions and other terms” of the policy and if there was no entry in a premium space, insurance was not to be “afforded with respect to the coverage opposite each premium space.” No premium was charged for “aggregate products” under Coverage A (bodily injury) or Coverage C (property damage— except automobile). Coverage for “Products (Including Completed Operations)” was expressly excluded by schedule 1 (d) of the declarations.

The term “products hazard” was defined under paragraph 3 (g) (2) of “Conditions” as including:

“operations, if the accident occurs after such operations have been completed or abandoned and occurs away from premises owned, rented or controlled by the named insured; provided, operations shall not be deemed incomplete because improperly or defectively performed or because further operations may be required pursuant to an agreement; provided further, the following shall not be deemed to be ‘operations’ within the meaning of this paragraph: (a) pick-up or delivery, except from or onto a railroad car, (b) the maintenance of vehicles owned or used by or in behalf of the insured, (c) the existence of tools, uninstalled equipment and abandoned or unused materials and (d) operations for which the classification stated in division (a) of the declarations specifically includes completed operations.” (Emphasis added.)

In essence appellant contends that since the accident occurred on November 18th, sixteen days after the work had been completed, coverage is excluded by the express provisions of paragraph 3 (g) (2) of Conditions because the operations had been completed. Respondent contends that there is coverage under two alternative theories: (1) The accident occurred on November 2d or 3d (while the injury occurred on November 18th), Heuser’s liability grows out of negligence attributable to him that occurred at that earlier time, his operations were not completed at the time and, therefore, the exclusion provisions of the policy do not apply; or (2) the products-hazard exclusion provision^ do not apply since neither paragraph 3 (g) (1) nor (2) contemplates the construction work performed by Heuser.

The coverage question raised here is one of first impression in this state. One of the relevant decisions in other jurisdictions is the Connecticut case of Smedley Co. v. Employers Mut. Liability Ins. Co. In that case the insured operated a warehouse and was sued when the release to a deliveryman of a wrong product from storage subsequently caused the ruin of a large quantity of ice cream. The liability policy specifically excluded coverage for the products hazard. Except for the additional proviso present in the instant case that the operations were not to be deemed incomplete when defectively performed, the products-hazard definition in the policy was virtually identical to the definition found in Travelers’ policy. In holding that any liability on the part of the insured for delivering the wrong product was not covered by the policy, the court said:

“Although both complaints alleged negligence on Smedley’s part in releasing the wrong product at its premises in New Haven, both further alleged that no injury to property — that is, no accident to property — occurred until the wrong product was used at New London by Mohegan in the manufacture of ice cream. The injury took place long after the operations of Smedley had ended and at a place away from its premises.”

and

“Since the complaints in the actions brought against Smedley showed on their face that the accident to property arose out of a ‘products hazard,’ as defined in the second paragraph of the definition, and that Smedley’s activities and services had been completed at the time the accident occurred, the defendant was under no duty to defend on behalf of Smedley.”

In Berger Brothers Electric Motors v. New Amsterdam Casualty Co., a New York case relied on by the Connecticut court in Smedley, a contractor was sued when motors he improperly installed in incubators subsequently (nearly two months later) caused damage to a large number of turkey eggs. The contractor had two insurance policies, one of which did not apply to accidents “occurring after operations have been completed or abandoned.” The court, in ruling against coverage, said:

“When the plaintiff completed its work and removed all of its tools, equipment and materials from the Chillson farm on December 23, 1940, no accident had occurred. Nothing had happened. There was no mishap whatever. Not until the eggs were placed in the incubators did any accident occur, and if we assume, as the plaintiff contends, that the accident did occur on February 20, 1941, ‘when the cause and effect merged into a consummated accident,’ this accident resulted from defective workmanship after the work of installation was completed. This must be so unless we yield to the plaintiff’s contention and hold that the work was not completed at that time because the wiring was defective; but so to construe the language of the excluding clauses would deprive them of all meaning and purpose. By these clauses the parties intended to limit the casualty company’s liability to accidents occurring during the progress of the work and to exclude liability for accidents occurring, after the work was completed, as the result of defective workmanship. If that be not the meaning of the plain language used, the insurer would remain liable indefinitely for defective workmanship upon the theory that defective work is never complete until the defect is discovered and corrected. But this is a risk which the parties intended to exclude from the coverage of the policy, and we cannot read these policies as intended to cover such risks, for the language is plain and unambiguous.”

Other cases involving similar completed operation provisions in the disputed policy are in accord with Berger and Smedley.

Relying on Kendrick v. Mason, respondent Heuser counters that the injury and not the accident arose on November 18th, that the accident actually occurred on November 2d when the gas line was allegedly weakened, and that accordingly even if paragraph 3 (g) (2) is considered applicable the tortious accident occurred before operations were completed. But Kendrick does not stand for this proposition. The decision of the court recognized that the “accident,” within the meaning of the policy, took place when the explosion occurred. This is consistent with the general rule.

The court concluded that there was coverage in Kendrick because of ambiguity in the policy provisions. The contractor had punctured a gas main while digging trenches for a sewer system. Sometime later an explosion occurred which caused both personal injuries and property damage. The contractor had a comprehensive general liability policy which did not apply to “Aggregate Products” or “Products Hazard” liabilities. The definition of “operations” under “Products Hazard” was identical to the one in the present case. “Products Hazard” was also defined in terms of “products” as meaning:

“The handling or use of, the existence of any condition in or a warranty of goods or products manufactured, sold, handled or distributed by the Named Insured, ... if the accident occurs after the Insured has relinquished possession . . . .”

Although the precise language is different, the policy in the present case also contains substantially the same alternative definition of “Products Hazard.”

The insurance company sought to avoid liability, as does Travelers here, under the operations portion of the “Products Hazard” definition. Finding the policy terms unclear, the court decided that:

“ ‘The reference to the accident occurring after the operations have been completed and abandoned at or away from premises owned, rented or controlled by the insured means nothing more than the accidents occurring by reason of handling of products or goods, after any agreement to sell, rent or deliver the goods has been completed or the goods have been abandoned.’ ”

and further that:

“We are constrained to conclude that the liability exclusion provisions of the policy herein issued by the defendant to Mason are inapplicable herein for the reason that Mason handled no products but was engaged solely as a contractor and the exclusion provisions of the policy have no application to the construction work performed by him. The policy was issued to fully protect Mason against liability for acts of negligence committed by him during his performance of the contract. The tort which was the proximate cause of the damages sustained by plaintiff was in fact and in law committed during the performance of the construction contract. Both the accident and the injuries resulting therefrom were brought about not from the completed and accepted sewer system but from the direct result of the acts of negligence committed during its construction. The policy covering said accidents for which premiums were charged was then in full force and effect; and the conclusion is inescapable that the insurer is therefore liable in solido with its insured, Mason.”

Other courts, faced with similar facts and policy provisions, have adopted the rationale illustrated in Kendrick.

The two interpretations of similar policy provisions are irreconcilable. Moreover, the cases supporting each view cannot be readily distinguished on their facts. The Kendrick decision not only ignores the express language of the “operations” definition under “Products Hazard” but also renders that whole definition of no effect when considering the activities as here of a construction contractor. The “operations” definition of the subject policy contemplates an insured who is engaged in operations that are something more than the handling of goods. We think there is nothing ambiguous about the policy provisions in this respect. Thus, the Smedley-Berger rationale not only appears to be the majority view but the soundest. The insurance contract covered liability for injuries or damages arising out of accidents that occurred before the operations of the excavating contractor had been completed on November 3d; that since this accident did not occur until November 18th, the operations had been completed and there was no coverage. Coverage, limited as it always must be, results from contract and the parties simply did not contract to cover this risk.

By the Court. — Order reversed.

Currie, C. J.

(concurring in part, dissenting in part). While I concur in that part of the court’s opinion which holds that appellant Travelers Indemnity Company cannot be named as a party defendant under our direct-action statutes under the instant facts, I must respectfully dissent from that part of the opinion which holds there is no coverage under appellant’s policy. I would follow the precedent of Kendrick v. Mason (1958), 234 La. 271, 99 So. (2d) 108. Here the property of the gas company, the gas main, was actually damaged by the “Hy-Hoe” excavating operations which set in motion the chain of causation which later resulted in the explosion. I cannot see how products liability coverage would be applicable to this type of situation. Here the product was the trench which was excavated and filled. Nothing later happened with respect to that after completion of the work to cause the explosion.

I am authorized to state that Mr. Justice Fairchild and Mr. Justice Beilfuss join in this opinion.

       (1961), 12 Wis. (2d) 460, 107 N. W. (2d) 625.

       Id. at page 466.

       (1962), 17 Wis. (2d) 296, 116 N. W. (2d) 169.

       (1956), 143 Conn. 510, 123 Atl. (2d) 755.

       Id. 143 Conn. at page 517, 123 Atl. (2d) at page 759.

       Ibid.

         (1944), 293 N. Y. 523, 58 N. E. (2d) 717.

       Id. 293 N. Y. at page 527, 58 N. E. (2d) at page 718.

         Employers Ins. Co. of Alabama v. Rives (1953), 38 Ala. App. 411, 87 So. (2d) 646; Smith v. United States Fidelity & Guaranty Co. (1942), 142 Neb. 321, 6 N. W. (2d) 81; Crook v. Kalamazoo Sales & Service, Inc. (1954), 82 R. I. 387, 110 Atl. (2d) 266; Baker v. Maryland Casualty Co. (1948), 73 R. I. 411, 56 Atl. (2d) 920; Butler v. United States Fidelity & Guaranty Co. (1955), 197 Tenn. 614, 277 S. W. (2d) 348; Foster Trailer Co. v. United States Fidelity & Guaranty Co. (1950), 190 Tenn. 181, 228 S. W. (2d) 107; Hutchinson Gas Co. v. Phoenix Indemnity Co. (1939), 206 Minn. 257, 288 N. W. 847; Pan American Ins. Co. v. Cooper Butane Co. (1957), 157 Tex. 102, 300 S. W. (2d) 651; Hardware Mut. Casualty Co. v. Bloomberg (1952), 72 Ohio L. Abs. 550, 135 N. E. (2d) 698; Standard Accident Ins. Co. v. Roberts (8th Cir. 1942), 132 Fed. (2d) 794; U. S. Sanitary Specialties Corp. v. Globe Indemnity Co. (7th Cir. 1953), 204 Fed. (2d) 774; Clauss v. American Automobile and Ins. Co. (D. C. Pa. 1959), 175 Fed. Supp. 641.

       (1958), 234 La. 271, 99 So. (2d) 108.

       Id. 234 La. at page 295, 99 So. (2d) at page 117.

       See 1 Words and Phrases, p. 551; 29A Am. Jur., Insurance, p. 313, sec. 1167; Anno. 57 A. L. R. (2d) 1379; Commercial Contractors Corp. v. American Ins. Co. (1964), 152 Conn. 31, 202 Atl. (2d) 498. In Clark v. London & Lancashire Indemnity Co. (1963), 21 Wis. (2d) 268, 283, 124 N. W. (2d) 29, this court indicated acceptance of the general rule by quoting a definition of accident as meaning “injuries caused by a sudden and identifiable event with respect to both location and time.”

        Kendrick v. Mason, supra, footnote 10, at page 115.

       Id. at page 116.

       Ibid.

         King v. Mason (1958), 234 La. 299, 99 So. (2d) 117; Clark v. Hacker (1956), 345 Mich. 751, 76 N. W. (2d) 806; McAllister v. Century Indemnity Co. of Hartford (1953), 24 N. J. Super. 289, 94 Atl. (2d) 345; Reed Roller Bit Co. v. Pacific Employers Ins. Co. (5th Cir. 1952), 198 Fed. (2d) 1; Nielson v. Travelers Indemnity Co. (D. C. Iowa 1959), 174 Fed. Supp. 648, affirmed (8th Cir. 1960), 277 Fed. (2d) 455; Hercules Co. v. Royal Indemnity Co. (D. C. N. Y. 1959), 171 Fed. Supp. 746; Heyward v. American Casualty Co. (D. C. S. C. 1955), 129 Fed. Supp. 4.


author: Fairchild, J. Gordon and Wilkie, JJ.

text:
    Buckley, Respondent, v. Park Building Corporation, Appellant.

      April 1

    April 27, 1965.

      For the appellant there was a brief by Kluwin, Dunphy, Hankin & Hayes of Milwaukee, and oral argument by Gerald T. Hayes.

    For the respondent there was a brief by Harold Harris, attorney, and Alvin Richman of counsel, both of Milwaukee, and oral argument by Mr. Harris.

   Fairchild, J.

Defendant asserts that the May, 1963, judgment in its favor has never been set aside and still constitutes a final determination of the rights of the parties; that the amended complaint is a fugitive pleading without force. Plaintiff counters, of course, with the order of January 7, 1964, which “permitted relief under section 269.46” and expressly allowed plaintiff to amend her pleadings. Although the order did not employ the words “vacate,” “set aside,” or “open up,” she argues that the status of the judgment, under the order, is that it continues to be of record, but its finality as a determination of the rights of the parties is suspended, pending a new determination thereof.

This court has pointed out the distinction between opening and vacating a judgment. Where a party against whom a default money judgment has been rendered obtains relief from a judgment, so that he may defend, it is the frequent, and perhaps preferred, practice to open up the judgment, but, by not vacating it, to permit the lien of the judgment to stand as security, pending the outcome of the trial upon the merits. In the instant case the May, 1963, judgment simply dismissed the complaint and did not award costs. Thus the usual reason for merely opening a judgment, the preservation of a lien, did not obtain. But although the order was vague with respect to the exact “relief” permitted, it was specific in authorizing an amended complaint. It can only mean that the judgment was opened up pending a fresh determination of the merits.

Defendant challenges the validity,, or at least propriety, of the order of January 7, 1964. Counsel .correctly points out that it was entered more than sixty days after the end of the term during which the judgment was entered, and, accordingly, was not authorized by sec. 269.46 ( 3), Stats. It was, however, entered within one year after notice of the judgment, and therefore timely under sec. 269.46 (1).

Defendant contends that the order was entered without notice and without sufficient showing of excusable neglect, and for both those reasons was not authorized by sec. 269.46 (1), Stats. Plaintiff contends that the order represented the decision which the circuit court reached and announced at the hearing on the previous December 23d. Defendant had notice of that hearing and its counsel was present. Plaintiff further contends that a sufficient showing of excusable neglect was made so that the circuit court did not abuse its discretion in opening the judgment.

Because of our conclusion that this appeal must be dismissed, we do not resolve the conflicting claims just described.

Defendant apparently made no application to the circuit court to vacate the order of January 7, 1964, but attempted to appeal to this court. Counsel contended that the order was appealable under sec. 274.33 (2), Stats., because it was “made upon a summary application in an action after judgment.” The language just quoted omits the statutory requirement of finality. The pertinent portion of sec. 274.33 (2) is: “A final order affecting a substantial right . . . made upon a summary application in an action after judgment.” (Emphasis supplied.)

An order opening or vacating a judgment and permitting further proceedings is not a final order and, accordingly, not appealable under sec. 274.33 (2), Stats., even though it affects a substantial right and is made, obviously, in an action after judgment. Defendant’s appeal from the order of January 7, 1964, was therefore dismissed. The fact that the order is not appealable does not mean that defendant could never have it reviewed here. If the ultimate judgment should go against defendant, defendant could, on appeal from the judgment, have the order reviewed. It would then be reviewable as an intermediate order which involves the merits and necessarily affects the judgment.

Defendant contends that the order of October 26, 1964, is appealable because it “denies an application for summary judgment.” The motion says that it seeks summary judgment and the court so referred to it in denying it. Taking the label literally, the order would be appealable as claimed.

We conclude, however, that the nature of the motion and order denying it must be determined from its substance, and not from the label defendant chose to apply. The amended complaint was expressly authorized by the order of January 7, 1964. It properly stands as the complaint in the action unless that order be vacated, or disregarded as a nullity. Defendant’s so-called “plea in bar” raised only one issue of law — whether the judgment is still in full force, i.e., whether the January 7, 1964, order was a nullity. The “plea in bar” did not deny any allegation of the complaint nor raise any defense to the cause of action therein alleged. Defendant’s motion for summary judgment did not purport to resolve any of the issues made by its answer to the amended complaint apart from its “plea in bar.” In substance, it simply brought on for hearing the issue of law raised by the “plea in bar.” The affidavit supporting the motion restated matters already of record with respect to the 1963 judgment and counsel’s conclusion of law concerning the status of the judgment. No evidentiary facts were stated. Although the motion said that it sought the entry of a judgment, it was premised upon the claim that there was already a final judgment in the action in full force and effect. Assuming, arguendo, that the January 7, 1964, order is a nullity, it would follow that the proceedings after the 1963 judgment and inconsistent therewith are improper, and defendant would be entitled to an order vacating them and striking the amended complaint, but not to a second and redundant judgment.

In reality, defendant’s motion was not a motion for summary judgment, though so designated, and an order denying it was not appealable as an order denying an application for summary judgment.

An order refusing to vacate an order opening a judgment is no more appealable than the order vacating the judgment. Although a motion to strike a pleading is, under some circumstances, treated as equivalent to a demurrer, so that an order granting or denying the motion is appealable, defendant’s instant motion, if considered as a motion to strike the amended complaint, could not be deemed tantamount to a demurrer. The motion is not grounded on lack of merit in the amended complaint, but upon a claim that the court improperly permitted plaintiff to serve it.

Orders denying a motion to dismiss, or denying a motion for judgment on the pleadings are not appealable.

The true nature of defendant’s motion appears to be a motion to vacate all proceedings after the 1963 judgment inconsistent therewith, and to strike the amended complaint. The order denying said motion is not appealable, and the appeal must be dismissed.

By the Court. — Appeal dismissed.

Gordon and Wilkie, JJ.

(concurring). We join in the court’s. opinion that this appeal should be dismissed for the reason that the order appealed from is not appealable. We would dismiss the appeal on the additional ground that the appeal is “frivolous” which ground (among others) was asserted by respondent in her motion, made shortly before oral argument, to dismiss the appeal.

By its order of January 7, 1964, the trial court, in effect, reopened the judgment in this case, stating that the plaintiff was “permitted relief under Section 269.46 of the Wisconsin statutes, particularly on the grounds of excusable neglect.” Deeming itself aggrieved by such order, Park Building Corporation attempted to appeal from such order, but on April 23, 1964, this court dismissed such appeal as having been taken from a nonappealable order.

Thereupon, Park Building Corporation filed a plea in bar in the trial court and moved in such court for summary judgment, alleging that the original judgment was still in force, thus barring the plaintiff’s action. This appeal is from the trial court’s denial of the application for summary judgment.

Although it is labeled a motion for summary judgment, the present motion is, in our opinion, an obvious attempt to obtain a second ruling on the precise same point which was the subject of the previous abortive appeal. This is not a valid motion for summary judgment; it is instead an attempt to get a second kick at the cat. We regard both the motion and the appeal as frivolous and would dismiss with double costs, pursuant to sec. 251.23 (3), Stats. See Estate of Bair (1956), 272 Wis. 14, 16, 74 N. W. (2d) 639; Grossman v. Kuehn (1942), 241 Wis. 55, 56, 4 N. W. (2d) 124; Kellogg-Citizens Nat. Bank v. Francois (1942), 240 Wis. 432, 3 N. W. (2d) 686.

        State ex rel. Chinchilla Ranch, Inc., v. O’Connell (1952), 261 Wis. 86, 96, 51 N. W. (2d) 714. See Glassner v. Medical Realty, Inc. (1964), 22 Wis. (2d) 344, 352, 126 N. W. (2d) 68.

         Kelm v. Kelm (1931), 204 Wis. 301, 235 N. W. 787; Hargraves v. Hoffmann (1931), 205 Wis. 84, 236 N. W. 556; State v. Eigel (1933), 210 Wis. 275, 277, 246 N. W. 417; McKey v. Egeland (1936), 222 Wis. 490, 269 N. W. 245; Old Port Brewing Corp. v. C. W. Fischer Furniture Co. (1938), 228 Wis. 62, 66, 279 N. W. 613.

       Sec. 274.34, Stats.

       Sec. 274.33 (3), Stats.

        Kelm v. Kelm, supra, footnote 3.

       See State v. Chippewa Cable Co. (1963), 21 Wis. (2d) 598, 611, 124 N. W. (2d) 616.

        Szuszka v. Milwaukee (1961), 15 Wis. (2d) 241, 112 N. W. (2d) 699.


author: Beilfuss, J.

text:
    Superior Plumbing Company, Inc., Respondent, v. Tefs, Appellant.

      April 1

    April 27, 1965.

      For the appellant there was a brief and oral argument by Herbert A. Eggie of Milwaukee.
    For the respondent there was a brief by Irving D. Gaines, attorney, and Paul E. Sicula of counsel, both of Milwaukee, and oral argument by Mr. Gaines.

   Beilfuss, J.

The owner, defendant-appellant, contends that the complaint does not state facts sufficient to state a cause of action; the subcontractor, plaintiff-respondent, asserts it states a cause of action for unjust enrichment.

The complaint does not allege an express contract between the owner and the subcontractor; nor does it make reference to the filing or prosecution of a subcontractor’s lien as provided by sec. 289.02, Stats.

The defendant relies upon the decisions of this court in Utschig v. McClone (1962), 16 Wis. (2d) 506, 114 N. W. (2d) 854, and Limbach v. Schmalz (1932), 208 Wis. 396, 243 N. W. 480.

In the Utschig Case we stated, at page 508:

“Appellant’s major argument on this appeal is that a subcontractor cannot obtain direct relief against a property-owner except on an express contract. Since no express contract existed here, appellant contends that the requisite privity is lacking and the subcontractor’s remedies must be against his principal.
“In Ponti v. Eckels (1906), 129 Wis. 26, 28, 108 N. W. 62, we held that a personal judgment against the property owner was erroneous as ‘there is no pretense either in allegation or proof of any privity between the owner and the subcontractors, or of any promise by the former to pay the latter, from which could result personal liability.’
“In Limbach v. Schmalz (1932), 208 Wis. 396, 398, 243 N. W. 480, we said:
“ ‘One under contract to render services must look to his employer for compensation unless in a proper case he has availed himself of the auxiliary remedy of a laborer’s or mechanic’s lien, secured a valid written promise of another to pay the employer’s debt, or a novation has been made and a new debtor substituted.’
“17 C. J. S., Contracts, p. 839, sec. 370, states that subcontractors must resort for payment to the principal contractor, as in the absence of an express contract there is no privity between a subcontractor employed by a general building contractor and the owner and the liability of the owner is only to the general contractor who is liable to the subcontractor. 12 Am. Jur., Contracts, p. 505, sec. 7, takes the same position, saying that the owner is not liable as on an implied contract simply because he has received services or goods.”

And at page 509, we said:

“By the subcontractors’ lien statutes, sec. 289.02, Stats., and following, the law has offered security and protection to a subcontractor. His failure to avail himself of the remedy so provided does not produce for him a right to recover payment directly from an owner who did not employ him and with whom he had no contract. Of course the subcontractor retains his right to proceed against the party who employed him.”

The plaintiff argues that the Utschig and Limbach Cases must be distinguished and limited for the reason that unjust enrichment was neither claimed by the subcontractor nor considered by the court. It contends that Kelley Lumber Co. v. Woelfel (1957), 1 Wis. (2d) 390, 83 N. W. (2d) 872, and Nelson v. Preston (1952), 262 Wis. 547, 55 N. W. (2d) 918, recognize the availability of the common-law remedy of unjust enrichment and those cases rule this appeal.

In the Kelley Case we said, at pages 391, 392:

“The circuit court concluded that the facts alleged in the complaint include the essential elements of quasi contract as set forth in Nelson v. Preston (1952), 262 Wis. 547, 55 N. W. (2d) 918. These are listed (p. 550) :
“‘(1) A benefit conferred upon the defendant by the plaintiff';
“ ‘(2) Appreciation by the defendant of the fact of such benefit;
“ ‘(3) Acceptance and retention by the defendant of such benefit, under circumstances such that it would be inequitable to retain the benefit without payment of the value thereof.’
“In Nelson v. Preston, the plaintiff furnished services and materials for the construction of houses on lots owned by defendant. The services and materials were ordered by defendant’s son, who was not an owner of the property and was not the agent of defendant, but had some interest in the houses under construction. The defendant benefited by the increase in value of her interest in the property. This, court decided that plaintiff was entitled to recover from defendant because it was inequitable for her to retain the benefit without payment.”

Both the Kelley and Nelson Cases have crucial factual variances that make them inapplicable to the facts of this action. In both cases the plaintiff stood in the position of a contractor and not a subcontractor, and in both instances the defendant had a joint or common-ownership interest in land improved and the enhanced value because of the materials or services furnished by the contractor. The other joint or common owner entered into an express agreement with the contractor and did not pay the contractor.

Applying the rules of the Kelley and Nelson Cases to the facts alleged in this complaint, it appears (1) a benefit was conferred upon the defendant owner by the plaintiff subcontractor, and (2) the defendant appreciates the fact of such benefit. The third prerequisite to a valid cause of action for unjust enrichment does not appear. Under the circumstances alleged it does not affirmatively appear that it would be inequitable for the defendant owner to retain the benefit without payment of the value thereof to the plaintiff subcontractor.

The plaintiff alleges that Odin, Inc., was the general contractor and that Superior Plumbing was a subcontractor. The only reasonable inference to be drawn, in the absence of other alleged circumstances, is that the defendant owner has paid the general contractor for the benefit furnished or is obligated to do so. If proof of the facts alleged in this complaint warranted a recovery the defendant owner could be placed in a position where he would be required to pay twice for the same benefit. Equity will not imply a promise to pay under these circumstances. After giving the complaint the liberal construction it is entitled to, we conclude it does not set forth facts sufficient to constitute a cause of action for unjust enrichment.

The plaintiff proposes that we overrule or modify the Utschig and Limbach Cases, supra, insofar as they imply that a subcontractor does not have a cause of action for unjust enrichment. We do not find it necessary to do so. Unjust enrichment was not at issue under the facts or the contentions of the parties in either Utschig or Limbach. We do not hold that a subcontractor cannot state a cause of action under any circumstances; we do hold the plaintiff has not done so in its complaint now before us.

The demurrer to the complaint should be sustained.

By the Court. — Order reversed, with leave to plaintiff to serve an amended complaint within twenty days of the remittitur.


author: Beilfuss, J. Gordon, J.

text:
    Mednis, Appellant, v. Industrial Commission and others, Respondents.

      April 1

    April 27, 1965.

      For the appellant there were briefs and oral argument by Bernard C. Westfahl of Milwaukee.
    For the respondent Industrial Commission the cause was argued by lames P. Altman, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and Gordon Samuelsen, assistant attorney general.
    For the respondents North Side Lumber & Fuel Company and Globe Indemnity Company there was a brief by Gibbs, Roper & Fifield, and oral argument by Robert /. Loots, all of Milwaukee.

       Motion for rehearing denied, without costs, on June 25, 1965.

   Beilfuss, J.

The applicant appellant asserts that prior to the industrial injury of December 11, 1961, he had industrial usable vision in his left eye which was completely lost as a result of the injury, and that under the Workmen’s Compensation Act he is entitled to full benefits.

Sec. 102.52, Stats., provides in part:

“Permanent partial disability schedule. In cases included in the following schedule of permanent partial disabilities indemnity shall be paid for the healing period, and in addition thereto, where the employe is 50 years of age or less, for the period specified, at the rate of 70 per cent of the average weekly earnings of the employe, to be computed as provided in section 102.11 :
“ (16) Total impairment of one eye for industrial use, 250 weeks.”

Sec. 102.55, Stats., provides in part:

“Application of schedules. . . .
“(3) . . . compensation shall bear such relation to that named in this schedule as disabilities bear to the disabilities named in this schedule. Indemnity in such cases shall be determined by allowing weekly indemnity during the healing period resulting from the injury and the percentage of permanent disability resulting thereafter as found by the commission.”

The applicant contends that the language of sec. 102.52, Stats., is clear and unambiguous and leaves no room for an interpretation that denies full scheduled benefits.

As pointed out by the trial court in an able and helpful memorandum opinion, the award of the commission is consistent with the long-standing prior pronouncements of this court and the agency rules and directions construing the statute. The rule is that the applicant shall not be compensated for that portion of his disability which, clearly established, is due to a pre-existing industrial or nonindustrial disability.

The court, speaking through Mr. Justice Edward T. Fairchild, in Employers Mut. Life Ins. Co. v. Industrial Comm. (1933), 212 Wis. 669, 670, 671, 250 N. W. 758, stated:

“The effect of a disease or infirmity existing before an accident occurs is to be separated from the effect of the later injury so far as that is possible in the administration of the workmen’s compensation law. . . . Where the preexisting condition is so thoroughly established and is of such a serious nature that what happens thereafter cannot reasonably be held to be the result of a subsequent accident, no award would be allowed. There appears to be no questioning of the rule that no compensation is payable where a preexisting condition causes the disability independent of any subsequent mishap.”

In Ruehlow v. Industrial Comm. (1933), 213 Wis. 240, 251 N. W. 451, plaintiff lost an eye at age twelve, the result of a nonindustrial accident. At age forty he lost the vision of his other eye in an industrial mishap. He was allowed recovery for loss of the second eye. The issue was how much extra he was entitled to out of the special state fund. The court said, at pages 244, 245:

“We do not think that the legislature intended that an employee, who has lost the vision of one eye as a result of a non-industrial accident and who subsequently loses the vision of the other eye as a result of an industrial accident, should be compensated as fully as an employee who has lost the vision of both eyes as a result of an industrial accident or accidents. It would hardly seem reasonable to conclude that the legislature intended by enacting said sub. (6) to compel industry to provide a state fund out of which an employee who had theretofore sustained a non-compensable nonindustrial accidental loss of an eye followed by the loss of the other eye as the result of an industrial accident, should be as fully compensated as one losing both eyes as a result of an industrial accident or accidents. ... We think the legislature did not intend that an employee should be compensated for a prior injury which had no connection with employment in industry beyond the cumulative effect resulting from the two injuries.”

Pages 25 and 26 of the Workmen’s Compensation Office Manual, used by the examiners of the Industrial Commission, and referred to by the trial court, provide as follows:

“Pre-existing Disabilities
“Scheduled disability with pre-existing scheduled disability.
“In case of a pre-existing industrial or non-industrial disability to an arm, leg, vision or hearing, the number of weeks of compensation payable for such injury, had it been industrial, shall be deducted from the number of weeks set forth in 102.52 before computing compensation payable to the same member or faculty, provided that the existence and extent of such disability can be established by the party seeking to make such deduction. Deduction is not made for a pre-existing disability more proximal to the injury. Even though the employe was paid compensation for a certain percentage of disability due to a previous injury, the extent of such pre-existing disability at the time of subsequent hearing may be redetermined (Kiesow vs. Industrial Comm., 214 Wis. 285).”

The construction and interpretation adopted by the administrative agency charged with the duty of applying the law is entitled to great weight in the courts. Further, the construction of a statute by the court becomes a part of the statute unless the legislature subsequently amends the statute.

From the record it has been clearly established that Mr. Mednis had a very substantial pre-existing nonindustrial disability of long standing. The undisputed fact is that prior to the present industrial accident he had only a four percent use of his left eye. The record further reveals that because of the condition of his eye prior to this accident he had a predisposition to a detached retina.

Dr. Schalmo, who performed the surgery for the detached retina, and was called as a witness by Mr. Mednis, testified that it “is common knowledge that a normal, healthy eye is not subject to traumatic-type retinal detachments” but because of the prior injury, glaucoma, and cataract surgery, the eye had a predisposition to retinal detachment, and that trauma of the industrial accident could have contributed to this retinal detachment. The commission did not reduce his award because of this predisposition but allowed him full benefit for the portion of vision which he had before the industrial accident.

Before the industrial accident and injury, Mr. Mednis had very little use of his left eye industrially or otherwise. He had no usable central vision, no binocular vision, but some side vision. His effective vision was his corrected 20/20 vision in his right eye. He still has his right-eye vision unaffected by this industrial injury.

The findings and award of the commission, as confirmed by the trial court, are fully in accord with our prior construction of the statute and the agency’s interpretation. They must be affirmed.

By the Court. — Judgment affirmed.

Gordon, J.

(concurring). With the remaining four percent of vision in his left eye, Mr. Mednis appears to have had industrially usable vision therein. By reason of the industrial accident on December 11, 1961, his vision in his left eye is entirely gone. I find it unrealistic to say that this accident has cost Mr. Mednis only four percent of vision in his left eye and that he should be reimbursed for only four percent of the amount allowed for the loss of vision of an eye when such four percent represents the totality of sight in such eye.

Those four percentage points are patently far more valuable to him than the four points which might be lost by one with more-normal sight. In other words, to say that the loss of vision in an eye from four percent to zero is no different in value than a loss from 100 percent to 96 percent is not impressive to me.

My colleagues are quite mindful of this anomaly but feel bound by sec. 102.52 (16), Stats., and its interpretations. The law supports such position and forecloses dissent. Nevertheless, I am constrained to state that when a judgment leads to such a dubious result as this, a better and more-just solution should be available.

I am authorized to state that Mr. Justice Wilkie joins in this concurring opinion.

        Giant Grip Mfg. Co. v. Industrial Comm. (1956), 271 Wis. 583, 586, 587, 74 N. W. (2d) 182; Kiesow v. Industrial Comm. (1934), 214 Wis. 285, 287, 252 N. W. 604.

        Trczyniewski v. Milwaukee (1961), 15 Wis. (2d) 236, 240, 112 N. W. (2d) 725; Wisconsin Axle Division v. Industrial Comm. (1953), 263 Wis. 529, 537b, 57 N. W. (2d) 696, 60 N. W. (2d) 383.

        Borello v. Industrial Comm. (1965), 26 Wis. (2d) 62, 131 N. W. (2d) 847.


text:
    Kuchinsky, Appellant, v. Empire Lounge, Inc., Respondent.

      April 1

    April 27, 1965.

      For the appellant there were briefs and oral argument by F. A. Schápiro of Milwaukee.
    For the respondent there was a brief and oral argument by Wayne E. Rowlee of Milwaukee.
   Currie, C. J.

In the absence of a transcript our review is limited to the question of whether the pleadings, decision, findings, and conclusions sustain the judgment. Estate of Reynolds (1964), 24 Wis. (2d) 370, 374, 129 N. W. (2d) 251.

Appellant plaintiff has raised no issue on this appeal with respect to the trial court’s determination that no bailment existed. Thus the issue before us is whether, under the facts as found by the trial court, defendant cocktail-lounge operator, was negligent as a matter of law.

A case very much in point is Montgomery v. Ladjing (1899), 30 Misc. 92, 61 N. Y. Supp. 840. There the plaintiff entered the restaurant kept by the defendant with a party of friends; he removed his overcoat and hung it on a hook affixed to a post near the table at which he seated himself; the attention of neither the defendant nor of any of his employees was called to the coat in any way; and fifteen minutes later the coat was missing. The court held that the plaintiff had wholly failed to show failure on the part of the defendant to exercise ordinary care, and declared (30 Misc, at p. 96) :

“The rule to be deduced from all these cases, therefore, is: That, before a restaurant keeper will be held liable for the loss of an overcoat of a customer while such customer takes a meal or refreshments, it must appear either that the overcoat was placed in the physical custody of the keeper of the restaurant or his servants, in which case there is actual bailment, or that the overcoat was necessarily laid aside under circumstances showing at least notice of the fact and of such necessity to the keeper of the restaurant or his servants, in which case there is an implied bailment or constructive custody, or that the loss occurred by reason of the insufficiency of the general supervision exercised by the keeper of the restaurant for the protection of the property of customers temporarily laid aside.”

In National Fire Ins. Co. v. Commodore Hotel (1961), 259 Minn. 349, 107 N. W. (2d) 708, the plaintiff was a guest at a luncheon held at the defendant’s hotel. She hung her mink jacket in an unattended cloakroom on the main floor across from the lobby desk. After the luncheon and ensuing card party the plaintiff went to the cloakroom to retrieve her jacket and discovered it was gone. The court held that no negligence had been established against the defendant and stated (259 Minn. at pp. 353, 354) :

“. . . In any event, we do not feel that it is incumbent upon a hotel or restaurant owner to keep an attendant in charge of a free cloakroom for luncheon or dinner guests or otherwise face liability for loss of articles placed therein. The maintenance of such rooms without attendants is a common practice, and where the proprietor has not accepted control and custody of articles placed therein, no duty rests upon him to exercise any special degree of care with respect thereto.
“Likewise, failure to post a warning disclaiming responsibility would not seem to constitute negligence when, as here, a guest is aware that a cloakroom is unattended, adjacent to the lobby, and accessible to anyone, and has used it under similar circumstances on many prior occasions. The absence of such warning signs does not appear to have been material in a number of decisions absolving proprietors from liability, although when posted they appear to be regarded as an added factor in establishing such nonliability.”

See also annotation, “Liability for loss of hat, coat or other property deposited by customer in place of business,” 1 A. L. R. (2d) 802.

Under the foregoing authorities we conclude not only do the findings of fact and conclusions of law support the judgment, but also that these findings would not support a judgment in favor of plaintiff.

Defendant has requested the imposition of double costs against plaintiff because of alleged flagrant violation of our rules. The most serious of these rule infractions was plaintiff’s failure to print in its appendix the trial court’s memorandum decision, findings of fact, conclusions of law, and judgment. If it were not for the fact that plaintiff’s counsel has been less than a year in practice and this is his first supreme court appeal we would grant the request for double costs. It is incumbent even upon the neophyte lawyer to familiarize himself with the rules of practice of this court set forth in ch. 251, Stats., before drafting his brief and appendix.

By the Court. — Judgment affirmed.


author: Hallows, J. Per Curiam

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

      April 2

    April 27, 1965.

      For the plaintiff in error there was a brief and oral argument by Ben L. Chernov of Milwaukee.
    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, William A. Plats, assistant attorney general, and Hugh R. O’Connell, district attorney of Milwaukee county.

       Motion for rehearing denied, without costs, on September 7, 1965.

   Hallows, J.

The issue presented is whether an unarmed getaway-car driver or lookout is guilty of armed robbery when his confederates or accomplices commit a robbery while armed with a dangerous weapon. The defendant argues that although a plea of guilty is in effect a judgment by confession, when the evidence taken upon such plea shows without question the defendant is guilty only of a lesser offense than is charged in the complaint, a judgment of conviction of the more-serious offense cannot be sustained.

Armed robbery is a separate crime from robbery, being robbery committed with a dangerous weapon and carries a maximum penalty of thirty years instead of ten years as for robbery. Sec. 943.32, Stats. No claim is made that defendant was not an accomplice of Freeman and Johnson who entered the tavern with guns and relieved the proprietor of $2,614. No claim is made the defendant did not know Freeman and Johnson were armed and intended to hold up the tavern. Thus we are not concerned with whether the actions of the defendant may be sustained on the complicity theory or the conspiracy theory discussed in State v. Nutley (1964), 24 Wis. (2d) 527, 129 N. W. (2d) 155. Although he did not directly take the money from the owner by force with a dangerous weapon, there was no question the defendant was-“concerned in the commission of a crime” because he “intentionally aids and abets the commission of it.” Sec. 939.05.

The defendant contends the most he is guilty of is robbery, and in respect to armed robbery he played only a supporting and subsidiary role without a gun in that he aided and abetted as an accessory and should have been so charged. But one participating in an armed robbery although he personally has no gun is guilty of armed robbery on the same reasoning .one participating in a robbery is guilty of robbery although he personally does not put his hand in the victim’s pocket. The distinction between accessories and principals at common law and common-law crimes have been abolished in this state by sec. 939.10, Stats. 4 Wharton’s, Anderson, Criminal Law and Procedure (1957), pages 610-613, secs. 1789-1791. One who would have been an accessory or an accomplice or a particeps criminis before or after the fact at common law may now be directly charged with the commission of an offense as principal if he meets the “concerned in the commission of the crime” test of sec. 939.05 which provides in sub. (2) (b) one is concerned in the commission of a crime when he “intentionally aids and abets the commission of it.”

This rule has been well settled for many years in Wisconsin. In Fifer v. State (1926), 189 Wis. 50, 206 N. W. 861, the defendant was convicted of armed robbery. Fifer’s participation consisted of acting as a lookout at a nearby intersection while his two accomplices entered and robbed the store. Like a drama on the stage, each party was engaged in the general scheme of the crime by performing his allotted part in the plot; but unlike a drama, all the actors, those who played the principal roles and those in the supporting roles, were guilty under the law as principals. Similarly in State v. Kuick (1948), 252 Wis. 595, 32 N. W. (2d) 344, this court upheld a conviction of an eighteen-year-old girl for armed robbery who accompanied two men on foot and stood as a lookout across the street from a filling station while they held it up. The rule was applied in the crime of murder in State v. Henger (1936), 220 Wis. 410, 264 N. W. 922, where in the course of an armed robbery a filling-station attendant was killed. The charge of murder was sustained against the defendant although the evidence showed he entered a conspiracy to commit an armed robbery but not to fire the gun and to serve as the driver of the getaway car. Although the defendant stayed in the automobile, did not wield a revolver, or actively participate in the fight which resulted in the death, his guilt was no less in degree than he who shot the filling-station attendant. See also Ronzani v. State (1964), 24 Wis. (2d) 512, 129 N. W. (2d) 143; Pollack v. State (1934), 215 Wis. 200, 253 N. W. 560, 254 N. W. 471; In re Carlson (1922), 176 Wis. 538, 186 N. W. 722.

In jurisdictions where a distinction is made between the crime of robbery and of armed robbery as in Wisconsin, it is also the rule that an unarmed participant in a robbery by an armed associate is guilty of armed robbery. 46 Am. Jur., Robbery, p. 150, sec. 25; 77 C. J. S., Robbery, p. 470, sec. 32; People v. Silva (1956), 143 Cal. App. (2d) 162, 300 Pac. (2d) 25; Deemy v. District Court of Dallas County (1933), 215 Iowa 690, 246 N. W. 833. The facts of the latter case are almost identical with the case at bar.

For the plaintiff in error there was a brief on rehearing by Oliver S. Carter, pro se.

No brief on rehearing for the defendant in error.

We find no error in convicting the defendant for armed robbery on his plea of guilty.

By the Court. — Judgment affirmed.

On motion for rehearing:

The following memorandum was filed September 7, 1965.

Per Curiam

(on motion for rehearing). Defendant Carter has filed a brief without the benefit of counsel in support of his motion for rehearing after his court-appointed attorney who prosecuted defendant’s writ of error had withdrawn as counsel. This brief does not attack our prior opinion which passed on the only issue raised in defendant’s original brief. Instead these three new issues are raised:

(1) Secs. 954.01 and 954.02, Stats., under which the warrant for defendant’s arrest are unconstitutional and void because “contrary to the Constitution of the United States.”

(2) This warrant was also invalid because the complaint fails to state sufficient essential facts upon which a warrant of arrest can be issued.

(3) There was such inadequate representation by counsel in the trial court as to amount to a denial of defendant’s rights under the Sixth and Fourteenth amendments to the United States constitution.

Ordinarily this court will not consider issues on a motion for rehearing not previously raised on the original appeal or writ of error. We here depart from this customary practice because of the fact that defendant is an indigent prisoner acting without benefit of counsel.

While we are not convinced that the arrest was invalid, any invalidity of the original arrest has been rendered entirely immaterial by defendant’s pleading guilty to the information without raising any issue with respect to the validity of the arrest. Bartozek v. State. See also Hawkins v. State.

Defendant employed counsel of his own selection to represent him at his original arraignment. Subsequently it developed that defendant was without funds to pay counsel, and the trial court then appointed the same counsel to represent defendant as an indigent. Because this counsel first refused the appointment and then reluctantly accepted it, defendant contends this established a half-hearted defense on the part of counsel. The record simply does not substantiate this contention. The only specific complaint defendant levels against his trial counsel is the latter’s failure to raise the issue of claimed illegal arrest. A finding of inadequate representation of counsel cannot be grounded on this because ordinarily counsel gains no advantage for the defendant by invalidating the arrest where the defendant is subject to rearrest on a valid warrant. An exception to this would occur where a search and seizure is grounded upon the arrest and the invalidating of the arrest would invalidate the search and seizure. There is no claim here, however, of any search and seizure incident to the arrest.

The motion for rehearing is denied without costs.

       (1925), 186 Wis. 644, 203 N. W. 374.

       (1965), 26 Wis. (2d) 443, 132 N. W. (2d) 545.