author:
Hallows, J.
      Wilkie, J. Gordon, J.

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

      January 8 —
    February 2, 1965.

      For the appellant there was a brief by Maurice Schmerling of Kenosha, and Myer H. Gladstone of Chicago, Illinois, and oral argument by Mr. Schmerling.

    For the respondent the cause was argued by Betty R. Brown, assistant attorney general, with whom on the brief were George Thompson, attorney general, William A. Plats, assistant attorney general, and Joseph Molinaro, district attorney of Kenosha county.
   Hallows, J.

On the appeal four questions are raised, did the trial court err: (1) In instructing the jury in referring to certain evidence that evidence of other crimes was received to identify the defendant; (2) in admitting state’s Exhibit No. 1 in evidence; (3) in its examination of the jury on whether it heard an allegedly prejudicial radio broadcast concerning the defendant; and (4) did the evidence support the verdict ?

During the course of the trial both Mr. and Mrs. Ventura identified the defendant as the person who had tricked them out of $3,000. For the purpose of identification of the defendant who had pleaded an alibi, the testimony of several other witnesses was offered and admitted. These witnesses testified the defendant attempted to perpetrate a similar fraud on them to obtain money by substantially the same procedure : Coming to their home, asking for an unknown person, telling them someone was ill in their home and she could cure the ill person, asking for a glass of water in which she put some material, asking for money so she could bless it, wrapping the money in a cloth, getting control of the money while supposedly leaving it in the house, sending the husband on an errand and getting the wife to leave the home, and then disappearing from the wife. In one instance the scheme was completed, in other instances the intended victim did not co-operate.

The defendant does not contend this evidence was not admissible for the limited purpose of identification although on oral argument some doubt was expressed of its admissibility. It is settled that evidence of other crimes or of the similarity of schemes of one charged with theft by fraudulent means may be admitted for the limited purpose of identifying the defendant by means of the method of operation as the person who committed the particular crime charged. Such evidence is not admissible for the purpose of proving the guilt of the defendant of the crime charged. However, the tendency to prove such guilt does not preclude the admissibility of the evidence for the purpose of identification if it has such probative value. State v. Jackson (1935), 219 Wis. 13, 261 N. W. 732; Anno. Evidence — Other Crimes — Identity, 63 A. L. R. 602, supplementing 3 A. L. R. 1540; 22 A. L. R. 1016; and 27 A. L. R. 357.

The complaint of the defendant is that the court in instructing the jury on the limited purpose of the admission of the evidence committed error in referring to the evidence as other “crimes” when only one completed transaction or crime had been testified to. We consider there is no merit to this argument. The use of the word “crimes” instead of “crime and other evidence” in the instruction was not prejudicial. The other evidence was of such a nature that no added weight was imparted to it by including it within the word crime. We believe in view of the whole evidence there is no probability that a different result would have occurred if the trial court had not used the word “crimes.” The possibility of a different result is not the equivalent of “has affected the substantial rights” required by sec. 274.37, Stats., for reversal. At the most, this was a bare technical error. State v. Kuick (1948), 252 Wis. 595, 32 N. W. (2d) 344; Walsh v. State (1928), 195 Wis. 540, 218 N. W. 714; Pulaski v. State (1964), 24 Wis. (2d) 450, 129 N. W. (2d) 204.

The defendant contends the state’s Exhibit No. 1 consisting of substance found in her purse should not have been admitted in evidence on the ground it was obtained by an illegal search. The evidence was admitted by the trial court upon the basis it was obtained upon a search incidental to a valid arrest for disorderly conduct. After the defendant was arrested on November 9th she was booked and her property removed from her possession prior to being placed in a cell. A police officer made an inventory of her purse which had been taken from her. Shortly thereafter another police officer examined the purse and saw the material in the bottom of the purse which was later designated as state’s Exhibit No. 1. This police officer knew the defendant and shortly before he had been called to a home in Kenosha and had been given some material which the defendant had discarded in the bathroom when a police officer had called at the house apparently looking for her. Mr. and Mrs. Ventura and other witnesses testified the material taken from the defendant’s purse was similar to the material the defendant had placed in the glass of water while perpetrating a fraud upon them.

The defendant contends the search of the purse was not an incident of the arrest and the arrest was not legal. The defendant did not move to suppress this evidence prior to trial as required by sec. 955.09 (3), Stats. However, the court in its discretion considered the issue at the time of trial which it had a right to do. State v. Luczaj (1960), 9 Wis. (2d) 199, 100 N. W. (2d) 368; Potman v. State (1951), 259 Wis. 234, 47 N. W. (2d) 884. The question of illegality of the arrest was not properly raised in the trial court and we must assume on this record, the arrest for disorderly conduct was valid. We agree with the defendant this- search was not incidental to the arrest but it does not follow the seizure of the contents of the purse was illegal.

A search incidental to an arrest whether of the person or place must bear a reasonable relationship in time and place to the arrest. Browne v. State (1964), 24 Wis. (2d) 491, 129 N. W. (2d) 175, 131 N. W. (2d) 169; Preston v. United States (1964), 376 U. S. 364, 84 Sup. Ct. 881, 11 L. Ed. (2d) 777. Such a search being without a warrant is limited under the rules of reasonableness and fair play by the purpose or purposes for which the defendant was arrested. Harris v. United States (1947), 331 U. S. 145, 67 Sup. Ct. 1098, 91 L. Ed. 1399; United States v. Rabinowitz (1950), 339 U. S. 56, 70 Sup. Ct. 430, 94 L. Ed. 653. Within such scope of the search, instruments, evidence, and fruits of the crime for which the defendant was arrested may be searched for and seized. Likewise, weapons and instruments of escape may be searched for and taken to insure the safety of the arresting officers and the custody of the person arrested. Agnello v. United States (1925), 269 U. S. 20, 46 Sup. Ct. 4, 70 L. Ed. 145, 51 A. L. R. 409; Browne v. State, supra; Stoner v. California (1964), 376 U. S. 483, 84 Sup. Ct. 889, 11 L. Ed. (2d) 856. If in the process of such reasonable search com traband or other material is found which may constitute evidence of other crimes, such contraband and material may be seized. Abel v. United States (1960), 362 U. S. 217, 80 Sup. Ct. 683, 4 L. Ed. (2d) 668. In Barnes v. State (1964), 25 Wis. (2d) 116, 130 N. W. (2d) 264, we pointed out that a search without a warrant but incidental to the arrest could not be used or enlarged for the purpose of seeking incriminating evidence of other crimes and held that it was unnecessary and unreasonable in the search of Barnes following his arrest for a traffic violation to search his pockets with a flashlight for remnants of marijuana. In State v. Brown (1964), 25 Wis. (2d) 413, 130 N. W. (2d) 760, we pointed out that in an arrest for a traffic violation the part of the body of a person arrested which was uncovered and open to inspection could be inspected and testified to, but the police without a warrant could not search those parts of the body which were covered añd not open to general view. See also Thornton v. State (1903), 117 Wis. 338, 93 N. W. 1107; Green Lake County v. Domes (1945), 247 Wis. 90, 18 N. W. (2d) 348. One test of reasonableness seems to be whether the police are looking for incriminating evidence under an exploratory or rummaging search Under the guise of a proper purpose incident to a lawful arrest. Go-Bart Importing Co. v. United States (1931), 282 U. S. 344, 51 Sup. Ct. 153, 75 L. Ed. 374; United States v. Lejkowitz (1932), 285 U. S. 452, 52 Sup. Ct. 420, 76 L. Ed. 877.

The examination of the defendant’s purse at the police station was apparently made in accordance with a custom to inventory the personal effects kept for safekeeping by the police for one lawfully held in jail. Such an examination and inventorying of personal effects of a prisoner at the police station and not at the scene of arrest, and at some time remote from the arrest can hardly be justified under the traditional concept of being incidental to the arrest. In this case the legality of the seizure of the contents of the purse rests upon a custody search required for the safety of the prisoner and of law-enforcement officers and by the efficient operation and administration of a jail. For the extent to which prison-administrative rule may interfere with one’s right of privacy, see Lanza v. State of New York (1962), 370 U. S. 139, 82 Sup. Ct. 1218, 8 L. Ed. (2d) 384.

The applicable principle is analogous to what might be called the fringe benefits of a valid search incidental to an arrest. It has been held, “When an article subject to lawful seizure properly comes into an officer’s possession in the course of a lawful search it would be entirely without reason to say that he must return it because it was not one of the things it was his business to look for.” Abel v. United States, supra, at page 238. In Gray v. State (1943), 243 Wis. 57, 9 N. W. (2d) 68, stolen articles of clothing found during a search incidental to the arrest for vagrancy were admissible in a burglary prosecution. On almost identical facts, it was held seizure some days after the arrest of property of an accused kept by the police for one in jail was valid on the ground of being incidental to the arrest. Baskerville v. United States (10th Cir. 1955), 227 Fed. (2d) 454. For greater reason, in custody examinations the material or objects which are not looked for but are on the person must be held to be validly seized in the process of incarcerating or jailing the defendant. Such type of search is referred to in Charles v. United States (9th Cir. 1960), 278 Fed. (2d) 386, 389, footnote 2. See also 1 Varon, Searches, Seizures and Immunities (1961), p. 196, in which the author states that any incriminating evidence obtained by the police in a custody search may be validly seized and used as evidence against the accused either upon the charge for which the arrest was made or upon an additional charge occasioned by the evidence. See also 51 A. L. R. 431; 32 A. L. R. 685.

Since the purse and other personal articles of the defendant were properly in the custody of the police for safekeeping, the police could seize what was in plain sight. Our examination of Exhibit No. 1 shows that it was of a character which was plainly visible to anyone opening the purse. However, if the police had examined the purse in search for evidence with the meticulous care that was used in the Barnes Case, such an examination would have become a search which ’would not be justified or within the reasonable scope of a custody search, because it would have had no reasonable relationship to custodial purposes.

The defendant complains there is error in the method used by the trial court in examining the jury to determine whether it had heard an allegedly prejudicial radio broadcast. After the jury was selected, the court instructed it to refrain from listening to any broadcast and reading any articles in the newspaper until the conclusion of the case. At the opening of court the following day one of the defendant’s counsel requested the court to poll the jury about whether any member had heard an allegedly prejudicial radio broadcast. The judge refused to poll the jury but questioned the jury en bloc, prefacing his remark with the reminder that he had admonished the jury the previous day not to listen to any broadcast concerning the trial. The court then asked whether anyone had heard the broadcast and no answer was made by the jury. The question was asked if any of them read about the case in the paper and no answer was made by the jury. In response to the question of whether the jury had followed the admonition closely there were voices from the jury box replying “Yes.”

Counsel made no comment or objection on this procedure. He made no request that the judge examine each juror in camera nor - did he move for a mistrial or repeat the requést for a polling of the jury. No evidence was produced that any member of the jury had actually heard the broadcast. In spite of this the defendant now complains the court should have questioned each juror individually and outside of the presence of the others and also that the court should not have mentioned the fact that it had previously told the jurors not to discuss the case or to read newspapers or listen to broadcasts, relying on Marshall v. United States (1959), 360 U. S. 310, 79 Sup. Ct. 1171, 3 L. Ed. (2d) 1250; United States v. Levi (7th Cir. 1949), 177 Fed. (2d) 833; and Meyer v. Cadwalader (1891), 49 Fed. 32.

Marshall v. United States, supra, acknowledges that in ruling on an issue of prejudice, the trial court has a large discretion as each case must necessarily turn on its special facts. In that case it was known that prejudicial news articles had reached several of the jurors and a new trial was ordered in spite of the fact the trial judge questioned the jurors separately. The case does not stand for the proposition the jurors must be examined separately on an issue of prejudice. In the Levi Case the jury was questioned en bloc concerning whether they had read a newspaper article. The episode happened before the jury and was in itself prejudicial whether the newspaper account was read or not. We do not consider this case even remotely holds that questioning a jury en bloc on the question of prejudice is error. In Meyer, the articles were so highly prejudicial the court considered the jury to be affected without making a finding that any juror in fact had read the articles. The evidence in the instant case falls far short of showing that any juror heard the broadcast or necessarily would hear the broadcast so as to make the Meyer Case analogous.

There is no dogmatic rule prescribing the procedure to be used in determining whether a jury was prejudiced by outside influences such as radio broadcasts or newspapers. The trial court must have some discretion in the method to be used in ascertaining the facts. Some cases may require each juror to be examined in camera; others, only a polling of each juror while in the jury box or an examination en bloc. It is only essential the method adopted will result under the circumstances in a truthful response by the members of the jury. When no showing is made that the prejudicial material has reached the jury which has been previously instructed concerning newspapers and radio broadcasts, and there is only a suspicion or possibility that a juror might have read a prejudicial account in a newspaper or heard a prejudicial broadcast, a general en bloc questioning of the jury would seem to be sufficient. At least we cannot say as a matter of law such procedure is prohibited. United States v. Micele (7th Cir. 1964), 327 Fed. (2d) 222; see State v. Moran (Mont. 1963), 384 Pac. (2d) 777; People v. Lambright (1964), 36 Cal. Rptr. 851, 393 Pac. (2d) 409.

The last contention of the defendant is the evidence does not support the verdict of guilty. On an appeal in a criminal case the test of the sufficiency of the evidence for a conviction is “whether the evidence adduced, believed and rationally considered by the jury, was sufficient to prove the defendant’s guilt beyond a reasonable doubt.” State v. Johnson (1960), 11 Wis. (2d) 130, 137, 104 N. W. (2d) 379; State v. John (1960), 11 Wis. (2d) 1, 103 N. W. (2d) 304; Parke v. State (1931), 204 Wis. 443, 235 N. W. 775. This test has been phrased as in civil cases in shorthand form, “any credible evidence to sustain the verdict,” but this must be understood to mean in a criminal case credible evidence sufficient to convince a jury beyond a reasonable doubt. In State v. Nutley (1964), 24 Wis. (2d) 527, 547, 129 N. W. (2d) 155, we stated that on appeal the test for the sufficiency of evidence in a criminal case is equivalent to the test applied in civil cases. This is correct in the sense that the sufficiency of the credible evidence in each case is tested on appeal in reference to the standard of proof applicable to the particular type of case under review. Language in Nutley which conveys the impression that any credible evidence is sufficient to sustain a conviction on appeal is withdrawn. The sufficiency test does not require the members of this court to accept such credible evidence and become equally convinced of the guilt of the defendant beyond a reasonable doubt but only that the members of this court are satisfied that the jury on the credible evidence submitted could find the defendant guilty beyond a reasonable doubt. If so, the defendant's guilt was sufficiently proven. State v. Hanks (1948), 252 Wis. 414, 31 N. W. (2d) 596; Parke v. State, supra.

The basis of defendant’s argument is principally that the jury should have accepted the testimony of alibi witnesses and would have except for a variety of reasons. True, several of the defendant’s witnesses testified that on the day of the alleged crime she was with them at a party in Inkster, Michigan. While this testimony is not incredible, neither is the testimony of the state witnesses that the defendant was in Kenosha on the day of the alleged crime. The credibility of these witnesses and the weight to accord their conflicting testimony were properly a function for determination by the jury. State v. Lombardi (1959), 8 Wis. (2d) 421, 99 N. W. (2d) 829; Schlesak v. State (1939), 232 Wis. 510, 287 N. W. 703; Clemens v. State (1922), 176 Wis. 289, 185 N. W. 209. The reasons advanced for the jury’s disbelief of the alibi are not grounds on the state of the record upon which this court can reverse. Testimony in defense of an alibi is not to be given any special or unusual weight but is to be considered together with all the other evidence by the jury. Such testimony does not raise a reasonable doubt as a matter of law. State v. Grahn (1963), 21 Wis. (2d) 49, 123 N. W. (2d) 510; State ex rel. Dewey v. Kibbe (1925), 186 Wis. 210, 202 N. W. 333.

The other alleged errors are without merit and require no discussion.

By the Court. — Judgment affirmed.

Wilkie, J.

(concurring). I would not resort to the “custody search” concept to justify the search in this case. As to this concept I share the misgivings of Mr. Justice Gordon. The defendant was arrested for disorderly conduct and taken into custody. The inventory that was then made of the contents of her purse, plus the later inspection that led to the discovery of the material, were investigations that were reasonably related to the crime for which she was originally arrested. In my judgment this search was reasonable.

Gordon, J.

(dissenting). In approving the use of physical evidence gleaned during a so-called “custody search,” the court has watered down the basic right against unreasonable search and seizure. Under the guise of taking an accused’s property into protective custody, the police, by this decision, are authorized to seek out evidence which would otherwise be inviolate. Cf. Barnes v. State (1964), 25 Wis. (2d) 116, 126, 130 N. W. (2d) 264.

In the case at bar, an inventory was made of the accused’s possessions just before she was placed in a cell. There is no evidence that the material in question was inventoried or that it was even observed at the time the inventory was made. Subsequently, however, a second police officer, who had been investigating the suspected crime, scrutinized Mrs. Stevens’ property and observed the material at the bottom of her purse. The latter search had nothing to do with the efficient operation of the jail, nor was it designed to protect Mrs. Stevens’ possessions when she was placed in the cell.

In my opinion, if a custody search is to be an approved method of obtaining admissible evidence, the standards surrounding it must be far more precisely defined than has been done in the instant case.


source: Caselaw Access Project

author: GORDON, J.

license: Public Domain

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

      January 8 —
    February 2, 1965.

      For the plaintiff in error there was a brief and oral argument by Gordon Myse of Appleton.
    For the defendant in error the cause was argued by William A. Plats, assistant attorney general, with whom on the. brief was George Thompson, attorney general.
   GORDON, J.

The sole ground of this appeal is Mr. Barth’s contention that he was convicted upon an extrajudicial confession which was not corroborated. The state concedes that under the law of Wisconsin a confession by itself is insufficient to support the conviction of the confessor. Holt v. State (1962), 17 Wis. (2d) 468, 480, 117 N. W. (2d) 626; State v. Bronston (1959), 7 Wis. (2d) 627, 640, 97 N. W. (2d) 504, 98 N. W. (2d) 468. However, the state urges that the instant confession was properly corroborated.

There is no question but that Mr. Barth voluntarily confessed to the homosexual act with which he was charged. Upon his plea of not guilty, the trial court accepted his confession into evidence. The court also received the testimony of several police officers, who testified as to the voluntary nature of the confession.

The trial court listed three items which it deemed to constitute the necessary corroborative evidence: (1) “That there is such an individual as Charles Skenandore,” the latter being the man with whom the homosexual act was allegedly perpetrated; (2) “that there is such an apartment as set out in the confession;” and (3) that such apartment “was occupied by the defendant.”

At the time of oral argument, the state disavowed the three aforesaid items as constituting proper corroboration and instead urged that legally adequate corroboration was- to be found in the testimony of Detective Frailing. This witness was questioned concerning how he arrived at the date, of the offense, November 6 th'; Detective Frailing thereupon made the following statement, which the state relies upon to corroborate the confession:

“In talking to Elmer Barth — referred [sic] his memory on things he did and asked if the date of November 6 might not be the date this had taken place. He did think it did. I talked to the other party involved and he agreed it was possible. This could have been the date.”

In our opinion, the above-quoted testimony falls short of constituting the corroboration necessary to support a conviction which is otherwise based entirely on a naked extrajudicial confession. In Holt v. State, supra, at page 480, the following rule was asserted relative to establishing a corpus delicti in Wisconsin:

“All the elements of the crime do not have to be proved independently of an accused’s confession; however, there must be some corroboration of the confession in order to support a conviction. Such corroboration is required in order to produce a confidence in the truth of the confession. The corroboration, however, can be far less than is necessary to establish the crime independently of the confession. If there is corroboration of any significant fact, that is sufficient under the Wisconsin test.”

We have carefully scrutinized the testimony in this case and particularly the portion quoted above that is relied upon by the state. We conclude that it does not constitute “corroboration of any significant fact,” as is required under the standard of the Holt Case. The crucial words used by the officer are the following: “I talked to the other party involved and he agreed it was possible. This could have been the date.” These words are not only inexact and vague, but, furthermore, do not confirm the happening of any fact .significant to this alleged crime.

In view of our conclusion that the record is devoid of sufficient corroboration, there is no necessity for our commenting on the hearsay aspects of the testimony of Detective Frailing.

• The prosecution having failed to submit sufficient evidence to establish a corpus delicti by evidence independent of Mr. Barth’s extrajudicial confession, there must be a reversal of such conviction.

May the state retry Mr..Barth on this charge? We note that he was convicted on August 3, 1964, and sentenced on August 14, 1964, to an indeterminate term of not to exceed two years. In State v. Godsey (1956), 272 Wis. 406, 408, 75 N. W. (2d) 572, the state failed to prove an essential element of the crime, and the court held that the conviction could not be sustained, adding:

“The defendant has been tried for the offense charged and was entitled to an acquittal. He was arrested on March 8, 1955, and has been in the county jail and the state prison for a period of within a few days of a year, the minimum sentence imposed by the court. We do not believe that under these circumstances he should be required to stand another trial.”

In our opinion, the approach of the court in the Godsey Case is applicable; Mr. Barth should not be required to stand another trial.

By the Court.-. — The judgment is reversed, and the cause is remanded with directions to discharge the defendant from further custody. The warden of the state prison will deliver him into the custody of the sheriff of Outagamie county, who will hold him in custody until discharged pursuant to this direction.


author: Hallows, J.

text:
    Continental Casualty Company and another, Appellants, v. Industrial Commission and another, Respondents.

      January 8 —
    February 2, 1965.

      For the appellants there was a brief by Kracht & Zauner of Milwaukee, and oral argument by Edward J. Kracht.

    For the respondent Industrial Commission the cause was argued by Gordon Samuelsen, assistant attorney general, with whom on the brief was George Thompson, attorney general, concurred in by Ray T. McCann and Richard A. McDermott, both of Milwaukee, for the respondent Rosemarie Gold Hirshey.
   Hallows, J.

The findings of the Industrial Commission are somewhat skimpy, but the testimony shows that on the trip some calls were to be made on distributors and in fact a call was made on distributor Vernon Mansch at Slayton, Minnesota. At the time Mansch was indebted to Lincoln Sales Corporation in the sum of $8,000 and was interested in another outlet in Iowa. By prearrangement Mansch had made the hunting arrangements at the request of the' sales manager and went on the hunting trip with them. There was testimony that Leonard Oster, who owned 50 percent of the stock of the company and was its president and a cousin of the Gold brothers, knew of the contemplated trip and of Richard Gold’s coming from the east coast to partake in the hunting and the discussions. These talks concerned the sales manager’s purchasing either the stock of the brothers or one half of the assets of the corporation.

We think the evidence supports the conclusion of law that William R. Gold was an employee of Lincoln Sales Corporation. An employee is any person in the service of another under any contract of hire, express or implied, sec. 102.07, Stats. A corporate officer and director may be an employee of a corporation if such officer performs work customarily performed by an employee. Fruit Boat Market v. Industrial Comm. (1953), 264 Wis. 304, 58 N. W. (2d) 689; Zurich General Accident & Liability Ins. Co. v. Industrial Comm. (1927), 193 Wis. 32, 213 N. W. 630; Columbia Casualty Co. v. Industrial Comm. (1929), 200 Wis. 8, 227 N. W. 292; Milwaukee Toy Co. v. Industrial Comm. (1931), 203 Wis. 493, 234 N. W. 748. In addition to his services as an attorney and officer, the deceased was involved in the day-to-day operations of the business for which he was paid as an employee and which were of a kind customarily performed as an employee.

The second question, of whether there is credible evidence to support the conclusion that at the time of the accident the deceased was performing services incidental to his employment and that the injury arose out of his employment, is a matter upon which this court is divided. The majority of the court, which does not include the author of this opinion, believes the evidence and the inferences which may reasonably be drawn therefrom by the Industrial Commission as the trier of the facts support its ultimate conclusion that at the time of the accident the deceased was performing service incidental to his employment. This view rests on the basis that the trip was predominately for business because it had as its purposes the calling on distributors and entertaining Mansch, the familiarizing of the deceased with day-to-day operations of the company, and the discussion of the possible purchase by the sales manager of a one-half interest in the business either through the purchase of assets or of the shares of capital stock of the Gold brothers. As a reasonable inference the hunting of pheasants for three days was incidental to these purposes and since they were approved by the Gold brothers and known to the president they constituted valid business purposes within the meaning of sec. 102.03 (1) (c), Stats., requiring at the time of the accident that the employee be performing a service growing out of and incidental to his employment. Under this view the hunting was in the nature of entertaining customers — when play is work and work is play. It has been held when an employer authorizes or directs an employee to entertain customers as a part of sales promotion, the employee is considered in the course of employment when injured during a hunting or fishing trip with the customers. See Ohlsen v. J. G. Dill Co. (1946), 222 Minn. 10, 23 N. W. (2d) 15, 19; Linderman v. Cownie Furs (1944), 234 Iowa 708, 13 N. W. (2d) 677; Lewis v. Lowe & Campbell Athletic Goods Co. (Mo. App. 1952), 247 S. W. (2d) 800; Boyd v. Florida Mattress Factory, Inc. (Fla. 1961), 128 So. (2d) 881; 7 Schneider, Workmen’s Compensation Text, p. 291, sec. 1666.

The minority of the court, including this writer, views the facts as presenting a two-purpose trip; one, for limited business purposes and the other, a personal-pleasure trip to hunt pheasants and to talk over the possible sale of their personal shares of stock. Consequently, the rule affirmed in James v. Industrial Comm. (1962), 18 Wis. (2d) 239, 242, 118 N. W. (2d) 185, would be applicable, wherein it was stated:

“. . . in order to establish the liability of the employer in traveling cases by employees outside of the place of employment, the service of the employer must be a concurrent cause of the trip which would have been made although the personal motive had been canceled. It was pointed out in that case: [Matter of Marks v. Gray (1929), 251 N. Y. 90, 167 N. E. 181]
“ ‘If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped, and would have been canceled upon failure of the private purpose though the business errand was undone, the travel is then personal, and personal the risk.’ ”

This rule was first adopted in Barragar v. Industrial Comm. (1931), 205 Wis. 550, 238 N. W. 368; and subsequently approved in Bohnsack v. Huson-Ziegler Co., Inc. (1933), 212 Wis. 65, 248 N. W. 764; Fawcett v. Gallery (1936), 221 Wis. 195, 265 N. W. 667; and Hills Dry Goods Co. v. Industrial Comm. (1936), 222 Wis. 439, 267 N. W. 905. The minority also disagrees with the proposition that officers in control of the corporation can by their ipse dixit endow their personal-pleasure trip with attributes and purposes of a business trip and insure themselves of the benefits of workmen’s compensation. The rationale in Duvick v. Industrial Comm. (1963), 22 Wis. (2d) 155, 125 N. W. (2d) 356, and Leigh Aitchison, Inc., v. Industrial Comm.. (1925), 188 Wis. 218, 205 N. W. 806, would dictate the contrary.

Since no corporate action authorized the Golds to represent the corporation in any deal with the sales manager for the sale of assets and the record does not show they attempted to speak for the corporation but rather only for themselves, the court found this purpose to be personal and no permissible inference could be drawn that the discussions or negotiations with the sales manager involved corporate interests. In the minority’s opinion this would only require the case to be sent back to the Industrial Commission for further findings under the rule laid down in the lames Case. However, the majority for the reasons stated would affirm.

By the Court. — Judgment affirmed.


author: Beilfuss, J.

text:
    Estate of Fucela: Fucela, Appellant, v. Jursik, Executor, and others, Respondents.

      January 8 —
    February 2, 1965.

      For the appellant there was a brief and oral argument by Stephen J. Hajduch of Milwaukee.
    For the respondents Emil Fucela, Vlado Fucela, Mary F. Bezamba, Helena Fucela, Anna Yelle, and Olga F. Ludin there was a brief by Foley, Sammond & Lardner and
      Edwin F. Walmer and Robert J. Bonner, all of Milwaukee, and oral argument by Mr. Walmer.

       Motion for rehearing denied, with costs, on March 30, 1965.

   Beilfuss, J.

The issue on this appeal is, does the widow of a decedent owning shares in a savings and loan association in the form prescribed in sec. 215.14 (2), Stats. 1961, have a right to a widow’s allowance or other statutory interest in such account which is payable upon death to named third persons ?

The following statutes, 1961, are involved:

“215.14 Joint share accounts. . . .
“(2) Shares may be issued to a member payable upon death to another person. Upon the death of the member such other named person shall become the owner and the payment of the participating value of the shares to such person shall be made as provided in section 72.11 (2) and (3), but no new owner shall have rights superior or prior to the rights of the deceased member. Such shares shall be considered a part of the deceased member’s estate and subject to the payment of his just debts.” (Emphasis added.)
“313.15 Distribution of estate. When any person shall die possessed of any personal estate or of any right or interest therein, whether disposed of by will or not, the same shall be applied and distributed as follows:'. . .
“(2) Allowance to Family. The widow and minor children, or either, constituting the family of the deceased testator or intestate, shall have such reasonable allowance out of the personal estate or the real estate, or both, of the deceased as the county court shall judge necessary for their maintenance until an award shall be made or refused as provided in subsection (4) (a) of this section, or their shares assigned to them. . . .
“(4) Allowances for Funeral Expenses and to Widow and Children, (a) If the total value of an estate exceeds the dispositions made therefrom under the preceding subsections the county court may, in its discretion, assign from the residue of such estate a sum or value not exceeding $2,000 for the use and support of the widow and minor children of the deceased; and if there be no widow, for the support of the minor children; and if there is a widow but no minor children, for the support of the widow, in either case in such proportion as the judge may determine.”
“313.16 Debts; order of payment. (1) If, after the allowance provided for by section 313.15 has been made and after the amount of the claims against any estate shall have been ascertained by the court, it shall appear that the executor or administrator has in his possession sufficient to pay all the debts, he shall pay the same in full within the time limited for that purpose. If the assets received by the executor or administrator, and which can be appropriated to the payment of debts, shall not be sufficient he shall, after paying necessary expenses of administration, pay the debts against the estate in the following order:
“ ( a ) The necessary funeral expenses ;
“(b) The expenses of the last sickness;
“(c) Debts having a preference under the laws of the United States or the laws of the state of Wisconsin;
“(d) Wages due to workmen, clerks or servants which have been earned within three months before the date of the death of the testator or intestate, not to exceed three hundred dollars to each claimant;
“(e) Debts due to other creditors.”

This court in Tucker v. Simrow (1946), 248 Wis. 143, 21 N. W. (2d) 252, held that a savings and checking account payable to a named person at the death of the depositor is ineffectual to pass such account. At page 145, Mr. Justice Wickhem, speaking for the court, stated:

“The doctrine of Koppelkam v. First Wisconsin Trust Co. 240 Wis. 254, 3 N. W. (2d) 350, and Warsco v. Oshkosh Savings & Trust Co. 183 Wis. 156, 196 N. W. 829, is to the effect that, where substantially entire control of the property disposed of is retained by the person making the deposit until his death, a testamentary disposition has been attempted and any document making such disposition must satisfy the statute governing execution of wills. The distinction is between cases like the Staver and Skilling Cases, supra, where a present interest is created in the person alleged to be a joint tenant and those where complete control over the property or chose is retained until death by the donor.”

In response to a request by the commissioner of savings and loans for an opinion, the attorney general in 38 Op. Atty. Gen. (1949) 343 advised that although a certificate in the name of A payable upon death to B could be issued, it would not be effective to pass ownership to B because it would probably be construed as an invalid attempt to make a testamentary disposition without the formalities required to make a will.

It is apparent that sec. 215.14 (2), Stats., was created to remove the prohibition of the Tucker decision.

In construing sec. 215.14 (2), Stats., within the framework of the statutes pertaining to the probate of estates, consideration should be given to the apparent change of rule sought by sec. 215.14 (2). In construing a statute bearing on. a particular subject (here the probate of estates), where possible, the related statutes should be interpreted so as to give effect to each provision of the statutes involved. Safe Way Motor Coach Co. v. Two Rivers (1949), 256 Wis. 35, 39 N. W. (2d) 847.

Secs. 313.15 and 313.16, Stats., quoted above, refer to different demands upon estate assets. Sec. 313.15 gives the widow an “allowance” out of property which is in the estate. Sec. 313.16 refers to payment of debts due to creditors out of assets which are in the estate. Sec. 215.14 (2) determines when certain assets are in the estate.

That “allowances” and “debts” are different species of interest or demand upon estates is clear.

The widow’s statutory rights do not require the filing of a claim; nor is allowance necessary for her to be entitled to her statutory share of the estate. Widow’s statutory rights are not “claims.” Guardianship of Schneider (1943), 244 Wis. 323, 12 N. W. (2d) 138. In Estate of Phalen (1928), 197 Wis. 336, 341, 222 N. W. 218, this court said:

“It is clear that under sec. 313.16 of the Statutes all claims against the estate are included in the word ‘debt.’ ”

It would appear that if the widow’s statutory rights are not “claims,” they are not debts. The widow’s interest not being a “debt,” by operation of law, the savings account would not become part of the estate for the payment of that particular demand.

A final point of statutory construction should be mentioned. Sec. 215.14 (2), Stats., provides that the account is part of the estate and subject to payment of debts. Appellant argues that the account is subject to the payment of debts and also that it is part of the estate for all other purposes, i.e., widow’s statutory rights. We disagree. Such a construction would tend to nullify the apparent purpose sought to be accomplished by the legislature. A proper reading of the statute is that the account is part of the estate for the payment of debts. By this construction, the right of a member of a savings and loan association to pass his account is left fairly well intact. The widow’s suggested construction would unnecessarily limit the right of disposition.

Sec. 215.14 (2), Stats. 1961, provides: “. . . Upon the death of the member such other named person shall become the owner. . . .” If the shares were to become a part of the estate for purposes not set forth, the statute would become a nullity. We do not so construe the statute.

Under the facts of this case the result is harsh, one that no member of this court relishes. We must, however, construe the statute to give it the effect the legislature apparently intended. If the legislature, upon reconsideration, determines that savings accounts of this nature should be subjected to the statutory allowances of widows and minors they may accomplish this purpose by appropriate amendment of the statute.

By the Court. — Order affirmed.

       Ch. 530, Laws of 1951, secs. 1 a, and 2. Section renumbered and re-created in substantially the same form, sec. 215.14 (13). Ch. 315, Laws of 1963, sec. 1.

       See Alan Realty Co. v. Fair Deal Investment Co. (1955), 271 Wis. 336, 73 N. W. (2d) 517; Standard Oil Co. v. Industrial Comm. (1940), 234 Wis. 498, 291 N. W. 826.

       Other means exist by which a husband may disinherit his wife of his personal estate. By use of inter vivos transfer, Estate of Steck (1957), 275 Wis. 290, 81 N. W. (2d) 729, it may be accomplished and possibly by purchase of United States bonds.


author: Heffernan, J.

text:
    Hausmann, Respondent, v. Wittemann, Appellant.

      January 8 —
    February 2, 1965.

      For the appellant there was a brief by O’Meara & O’Meara of West Bend, and oral argument by Stephen O’Meara.

    For the respondent there was a brief by Simes ter, Schowalter & Bunk of West Bend, and oral argument by T. W. Simester.

   Heffernan, J.

The appellant, Wittemann, argues that the trial court was in error in failing to find that the contract was rescinded by the mutual consent of the parties. We agree with this contention, and we accordingly reverse the trial court and direct that the action for specific performance be dismissed.

We arrive at this result since a review of the record indicates the trial court’s decision is contrary to the great weight and clear preponderance of the evidence. Nehls v. Nehls (1963), 21 Wis. (2d) 231, 124 N. W. (2d) 18. Whether the contract was rescinded poses a question of fact to be determined from the intent of the parties as manifested either in their words, acts, or conduct. Skopes Rubber Corp. v. United States Rubber Co. (1st Cir. 1962), 299 Fed. (2d) 584, 594; and Church v. Bobbs-Merrill Co., (7th Cir. 1959), 272 Fed. (2d) 212.

The trial judge concluded that there was no evidence to indicate that the parties mutually agreed to rescind the contract. We disagree. Upon review of the testimony only of the verbal acts of the parties on the day in question, the result might appear to bé correct. According to the statements of Wittemann and the doctor, the former said he was not selling and the latter said nothing. But this analysis overlooks the decisive act of the return of the check by Wittemann and its receipt and retention by Doctor Haus-mann. If the sale was to be simply postponed, the seller, Wittemann, would have no reason to return the earnest money. If the doctor thought the sale to be postponed until the tenant was removed from the property, he would have no reason to accept the check. In accepting the check, the doctor manifested an acquiescence in the termination of the contractual relationship.

In Douglass v. Ransom (1931), 205 Wis. 439, 445, 237 N. W. 260, we held that the retention of the earnest-money check (received in the mail) might be construed as an acquiescence that the agreement to sell was rescinded. We, however, found no rescission because of the other acts of the buyer (the filing of the lis pendens and the commencement of the action) negated any inference of acquiescence and showed that he did not intend to waive his rights under the contract. Here the vendee commenced no action, but simply asked whether the tenant was removed from the premises. These inquiries are merely indicative of a continued interest in the property as a subject for future negotiations, and are not inconsistent with the prior manifestations of rescission. We conclude, however, that the retention of the check, and the failure to take any legal action to enforce the contract were so inconsistent with a continued contractual relationship, as to be conclusive evidence of an intent to consider the transaction at an end. In view of the only interpretation that can be placed upon these acts, it is clear that the finding of the court is contrary to the evidence.

Other acts of the doctor indicate that he thought that the sale was terminated. Wittemann told the doctor of the Ziegler offer, but at no time did Dr. Hausmann indicate that such dealings were inconsistent with the contractual relationship which he now insists was then in existence. Wittemann said that he told the doctor of the listing contract with the real-estate broker for $90,000. Dr. Hausmann disputes this. Nevertheless, the vendee’s conduct, until the time he asserted the continued existence of the vendor-vendee relationship, can only be accounted for if we conclude that the parties by mutual consent abrogated the contractual relationship.

In view of our conclusion that the contract was rescinded by the parties in 1954, the other points raised by the parties need not be considered.

By the Court. — Judgment reversed.


author: Currie, C. J.

text:
    Mixis, Plaintiff and Respondent, v. Wisconsin Public Service Company, Defendant and Appellant: Walter Kidde & Company and others, Impleaded Defendants and Respondents.

      January 7 —
    February 5, 1965.

      For the appellant there was a brief by Klueter, Larson & MacKenzie of Wausau, and oral argument by H. R, Klueter.

    For the respondent John A. Mixis there was a brief by George D. Young of Milwaukee and Robert W. Dean of Wausau, attorneys, and Theodore L. Priebe of Milwaukee and Larry W. Rader of Wausau of counsel, and oral argument by Mr. Priebe.

    For the respondent Walter Kidde & Company there was a brief by Welsh, Trowbridge, Bills, Planert & Gould of Green Bay, and oral argument by Lloyd J. Planert.

    For the respondents Automatic Sprinkler Corporation of America and La Mar Reeves, there was a brief by Joyce & Goggin of Neenah, and oral argument by Daniel R. Goggin.
   Currie, C. J.

Public Service seeks a new trial on this appeal because of alleged prejudicial errors occurring during the course of trial. We consider the two most important of these alleged errors to be:

(1) The res ipsa loquitur instruction given by the trial court to the jury.
(2) The failure of the trial court to include questions in the special verdict inquiring with respect to the alleged causal negligence of Kidde.

Two other alleged errors will be commented upon later in the opinion.

The Res Ipsa Loquitur Instruction.

The res ipsa loquitur instruction given by the trial court reads as follows:

“You are instructed further that if you find that the defendant Wisconsin Public Service Company had exclusive control of the reactor involved in this accident, and if you further find that the accident is of a type that ordinarily would not have occurred had the defendant Wisconsin Public Service Company exercised ordinary care, then you may infer from the accident itself, and the surrounding circumstances, that there was negligence on the part of the defendant Wisconsin Public Service Company, unless said defendant has offered you an explanation of the accident which is satisfactory to you.”

Plaintiff’s complaint contained this allegation:

. . the plaintiff and his fellow workmen were handling a fish tape to which was attached a copper tubing to be installed as a part of the sprinkler system; that said fish tape or copper tubing, as the plaintiff has been informed and verily believes, through the negligence of the defendant, its agents or servants, came in touch with an exposed transformer or reactor, and this caused an explosion which, in turn, caused the plaintiff to be thrown violently from the ladder to the floor, and in the process, said plaintiff sustained substantial injuries as hereinafter alleged.”

The cross complaint of Public Service against Kidde alleged upon information and belief that plaintiff “was in fact injured as he alleges.” The cross complaint of Kidde against Automatic Sprinkler and Reeves also alleged by information and belief that Reeves was negligent in the manner in which he handled the fish tape and copper tubing, that he dropped the fish tape and tubing from the ladder on which he was standing and that the tape or tubing came in contact with the reactor causing the explosion which injured plaintiff. Thus, insofar as the pleadings are concerned, the only explanation of how the arcing of the reactor took place is that either the fish tape or copper tubing dropped by Reeves came in contact with the reactor. At the trial it developed that Reeves did not drop any copper tubing but only the fish tape. The complaint was never amended so as to allege that the arcing occurred from any cause other than the fish tape coming in contact with the reactor. Nevertheless, plaintiff’s counsel argued to the jury the possibility that such arcing or “explosion” may have occurred through some unknown cause for which Public Service was responsible. Thus it is apparent that two alternative theories were considered by the jury: One, that the dropped fish tape came in contact with the reactor; the other, that the arcing of the reactor was due to some unknown cause.

A careful review of the record discloses that the great weight of the evidence tends to establish that the arcing of the reactor was caused by the fish tape coming in contact with it. Three Public Service employees, Luoma, Fonder, and Aerts testified that a IS to 16-inch piece of the fish tape was found on the floor of the reactor after the accident and that they saw IS to 25-feet of fish tape spread out on the floor outside. The smaller piece inside the reactor had the hook on one end, and the other end indicated that it had been burned off. One end of the larger piece also indicated that it had been burned off. In addition, Oberg, a fellow employee of plaintiff’s, who testified as a witness for plaintiff, saw Luoma with the 15-inch piece of fish tape in his hand telling other persons present that he had found it in the reactor. Oberg further testified that one end of this piece of fish tape was burned and not the other. Furthermore, when the arcing occurred a circuit breaker momentarily shut off the current to the reactor, but immediately thereafter permitted the current again to flow into the reactor. The reactor continued to operate for several hours before the current was shut off in order to make repairs to the reactor. If the arcing was due to a short circuit of the reactor without any foreign object coming in contact with it, it is difficult to conceive that it would have continued to operate satisfactorily for some hours afterwards.

To term the arcing an explosion is probably an inaccurate expression. The damage to the reactor consisted of a two-foot hole in the linen screen at the top, the melting off of some copper from one portion of the reactor, and the burning off of the glazed coating to two of the four porcelain insulators on which the bottom phase of coils sat. A small burn mark was found on the metal screens near the bottom of the reactor, and another burn mark was found on the coil on the bottom phase of the reactor about 22 inches above the floor. There was also dirt and smudge from the arcing. The reactor was in nó way internally damaged or distorted.

The testimony of the electrical-engineer experts called by Public Service was that the arcing had been caused by some foreign object coming in contact with one of the reactor coils or copper connections, or by such object getting within %th of an inch distance therefrom. Although plaintiff produced no electrical expert, on cross-examination of defendant’s expert witnesses, he attempted to show three possible causes of the arcing other than the fish tape having come in contact with the. reactor. One possibility explored was that dust and dirt had accumulated in the reactor cabinet. The expert opinion, however, was all to the effect that this would not have produced an arcing. The second possibility was that, by covering the top of the reactor with the rubber blankets, ventilation had been cut off and overheating had produced the arcing. Again the expert testimony was to the effect that this would not cause arcing. The third possibility was that a short circuit had occurred outside the generating plant which would cause a surge of electricity into the reactor. The expert witness explained that this likewise would not cause an arcing but could cause serious damage to the reactor. Thus, so far as the expert testimony is concerned, there was no explanation of any condition which would have produced the arcing except that of the fish tape or some other foreign object coming in contact, or very close proximity, with the reactor.

While the testimony was in conflict as to whether there was much spring or recoil of the fish tape when dropped on the concrete floor by Reeves, the finding of the short piece of fish tape inside the reactor cabinet is overwhelming evidence that the fish tape was the foreign object which did come in contact with the reactor.

Plaintiff contends that, if the dropping of the fish tape was a cause of the arcing, Public Service, nevertheless, was also causally negligent in one or more of these respects: (1) By not shutting off the current to the reactor while employees of Automatic Sprinkler were working nearby; (2) by not covering the lower vent screens of the reactor; or (3) by not stationing an employee in the room while plaintiff and his fellow employees were working there. It would be highly prejudicial, however, to give plaintiff the benefit of a res ipsa loquitur instruction to prove any of these three acts of alleged specific negligence. Incidentally, we do not believe the safe-place statute required Public Service to shut off the current to the reactor, and we have serious doubt whether the safe-place statute required that an employee of Public Service be stationed in the room.

Therefore, the only phase of the case with respect to which a res ipsa loquitur instruction would be proper would be the theory of arcing due to an unknown cause. Before it was instructed as to res ipsa loquitur, the jury should have been instructed that there were two theories or explanations with respect to what caused the arcing, one, that the fish tape had come in contact with the reactor; the other, that it was due to an unknown cause. Further, the res ipsa loquitur instruction should have been so worded that it would be only applicable if the jury first found that the fish tape did not come in contact with the reactor so that arcing was due to an unknown cause.

In reaching this conclusion with respect to the proper limitation of the res ipsa loquitur instruction we have considered such past decisions of this court as Wood v. Indemnity Ins. Co. (1956), 273 Wis. 93, 76 N. W. (2d) 610, and Wisconsin Telephone Co. v. Matson (1950), 256 Wis. 304, 41 N. W. (2d) 268, but do not consider either of those cases controlling under the particular facts of this case.

Respondents argue that the jury, by finding that the negligence of Reeves was not causal, in effect found that the dropping of the fish tape was not the cause of the reactor arcing. This being so, it is contended that the giving of the res ipsa loquitur instruction could not have been prejudicial because the jury could have only applied this instruction to an arcing of the reactor due to an unknown cause. While this is a plausible argument, we have serious doubts whether the jury’s answer to the causation question relating to Reeves was a finding on their part that the fish tape did not cause the arcing. The argument of plaintiff’s counsel was recorded by the reporter and constitutes part of the record. In that part of the argument dealing with the causation question with respect to Reeves, counsel stated:

“It is my belief that if you find that Mr. Reeves was negligent in any way, then this question, the fourth question, should be answered ‘no,’ because had he done anything that he shouldn’t have done there it certainly wasn’t any cause of the particular injuries that Mr. Mixis sustained, due to the fact that the Public Service failed to maintain this reactor and failed to block up this air duct that we talked about and certainly were the causes of Mr. Mixis’ injuries and the explosion in question.”

If the jury “bought” this argument on causation they would have answered the Reeves causation question as they did, even though they had concluded that the fish tape dropped by Reeves had come in contact with the reactor.

However, if, as now argued for by respondents, the jury did find that the fish tape did not come in contact with the reactor causing the arcing, such a finding would be contrary to the great weight of the evidence and we would deem it to be our duty to order a new trial in the interests of justice. We conclude that a new trial is required in the interests of justice because of the giving of the unqualified res ipsa loquitur instruction and because of the jury’s answer, “No,” to the causation question with respect to Reeves.

Failure to Include in Verdict Question With Respect to Kidde’s Alleged Negligence.

The record is not clear as to why the trial court denied Public Service’s request that the verdict contain questions inquiring with respect to Kidde’s possible causal negligence. Apparently the reason for this was that the trial court concluded that Kidde would be bound by any act of its subcontractor, Automatic Sprinkler, and the latter’s employees. Thus Kidde would be bound by a finding by the jury of causal negligence on the part of Reeves. Public Service contends, however, that Kidde was causally negligent in certain respects beyond the dropping of the fish tape by Reeves.

Public Service relies upon this provision in its written contract with Kidde for the furnishing and installation of the fire-protection system:

“The Contractor [Kidde] shall give his personal attention to the work being done under this contract and shall perform the work in a safe and workmanlike manner. He shall comply with all statutes, ordinances, orders, rules and regulations pertaining to the protection of workmen, frequenters and the public from injury or damage and shall take all other reasonable precautions to protect workmen, frequenters and the public from injury or damage. He shall have control and custody of the places where his work is being done until the work is completed and accepted by the company and shall make, keep and leave the same as safe as the nature of the premises and the work will reasonably permit.”

Styles, the installation supervisor for Kidde, testified that-on February 13, 1958, he met with Luoma, superintendent of Public Service’s Oshkosh plant, arid another Public Service employee. He thought Reeves was also present at this meeting. It was then agreed that each day Public Service was to see that the area where the sprinklers were to be installed was safe. It was further understood that before working in an area the employees of Automatic Sprinkler would check with the Public Service man in charge. Luoma corroborates this to the extent of having testified that Public Service had “control and custody of the place, as far as making it safe” for Mixis and the other workmen. In fact Luoma did not depend on the workmen to make the area safe. We consider the undisputed evidence discloses that it was understood between Kidde and Automatic Sprinkler on the one hand and Public Service on the other that any safeguarding of the reactor was to be done solely by Public Service and that Public Service assumed this responsibility. However, this did not absolve Kidde from any other duty imposed upon it by the above-quoted portion of its contract.

It is undisputed that no one on behalf of Kidde or Automatic Sprinkler advised Public Service that any fish tape was to be used in the area where the accident occurred. Public Service did know that work in the ceiling area close to the reactor was to be undertaken by Automatic Sprinkler’s employees on the day of the accident. Public Service adequately protected against any objects being dropped on the top screens of the reactor by placing the rubber mats across the top. It is at least arguable that Public Service had no duty to cover up the bottom metal screens of the reactor in the absence of notification that fish tape was to be used on the job. We conclude that a jury issue was presented as to whether Kidde was negligent in that neither it nor Automatic Sprinkler notified Public Service of the use of the fish tape.

It was prejudicial error, therefore, on the part of the trial court to have denied Public Service’s request to include in the verdict questions inquiring with respect to Kidde’s causal negligence. This provides a further ground for granting a new trial on the issues raised on the cross complaints though it would not afford a basis for a new trial with respect to plaintiff’s cause of action against Public Service.

Other Alleged Errors.

Because a new trial is to be had on all issues we deem it advisable to consider two other alleged errors raised by appellant Public Service. The first of these has to do with the question propounded by the trial court to the jury upon the voir dire examination. This question was worded as follows:

“Is there any member of this jury panel who is employed either as an agent or an adjuster of any insurance company, or employed by any insurance company in any other capacity, except that you might be a policyholder ? I guess we are all policyholders in one company or another.”

Prior to conducting the voir dire examination the trial judge held a conference with counsel in the absence of the jury with respect to the questions to be propounded by the court to the jury, and counsel for all defendants therein objected to the giving of a question asking whether any of the jurors were employed as agents or in any other capacity by any insurance company. We are satisfied from the review of what took place in this conference that plaintiff did not make a proper showing which would have justified the propounding of this question under the rule laid down in Filipiak v. Plombon (1962), 15 Wis. (2d) 484, 113 N. W. (2d) 365. We further hold that counsel for Public Service made sufficient objection on record to the propounding of this question in such conference, and that they did not thereafter have to again voice an objection in order to preserve the claimed error for purposes of grounding a motion for a new trial.

Under the facts of this case, where the defendant Public Service was well known to the jurors to be a large public utility corporation, we do not believe that the asking of such improper question prejudiced defendant. Therefore, we are not grounding our direction for a new trial on this error.

The other alleged error has to do with the ruling of the trial court on evidence. Plaintiff, in order to prove damages in the nature of wage loss, endeavored to establish that some months after the accident Automatic Sprinkler discharged him because of his inability, due to injuries received in the accident, to perform his duties as a working foreman. Over objection he testified he knew why he was laid off. Then this further question was propounded: “Can you tell the court and jury why you were laid off?” Counsel for Public Service objected because the question called for either the conclusion of the witness or hearsay or both. The objection was overruled and plaintiff answered:

“Because I couldn’t perform my duty like climbing, handling pipe, on account of dizzy spells I couldn’t climb, and I can’t hear. ‘You’ couldn’t hear what the people were saying from the top of — floor, like if ‘you’ are up on a 15-foot ladder in that area like that.”

We are of the opinion that the objection should have been sustained at that stage of the testimony. However, if before such question had been asked the plaintiff testified that dizziness and loss of hearing prevented him from doing work upon ladders as is required of a foreman, the trial court in its discretion could permit him to testify that his employer laid him off for those reasons. Although the reason advanced to the employee in such a situation would be hearsay, the truth of such reason would have been established by the employee’s own testimony as to his inability to perform his duties. While this situation does not fit into any of the well-recognized exceptions to the hearsay rule, the evidence adduced does have some probative value.

New Trial.

Public Service' contends that the damages awarded by the jury are excessive. - One of the reasons advanced for such contention was that there was no medical testimony in the record to establish that plaintiff’s claimed dizzy spells were due to the accident or were permanent. The trial court gave no instruction that the jury could not consider this element of dizziness in awarding damages for future wage loss and permanent injury. Therefore, we conclude the new trial should extend to the issue of damages as well as the'issues of negligence.

We recommend that on the new trial a question be included in the special verdict reading substantially as follows:

“Did the fish tape dropped by defendant La Mar Reeves come in contact with the reactor so as to cause the arcing of the reactor which injured plaintiff John A. Mixis?”

With respect to submitting special fact questions see Chapnitsky v. McClone (1963), 20 Wis. (2d) 453, 463, 122 N. W. (2d) 400; Fehrman v. Smirl (1963), 20 Wis. (2d) 1, 28, 121 N. W. (2d) 255, 122 N. W. (2d) 439; Sharp v. Milwaukee & Suburban Transport Corp. (1963), 18 Wis. (2d) 467, 481, 118 N. W. (2d) 905.

If the plaintiff on the new trial intends to rely on the theory that the arcing was produced by an unknown cause it is incumbent upon him to move to amend his complaint to allege this.

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


author: Heffeenan, J.

text:
    Barry Laboratories, Inc., Plaintiff, v. State Board of Pharmacy, Defendant. [Two appeals.]

      January 7 —
    February 17, 1965.

      For the plaintiff there was a brief by Quarles, Herriott & Clemons, attorneys, and Maxwell H. Herriott and James Urdan of counsel, all of Milwaukee, and oral argument by Mr. Urdan.

    For the defendant the cause was argued by Robert J. Ver-geront, assistant attorney general, with whom on the brief was George Thompson, attorney general.
   Heffeenan, J.

1. The issues. Barry contends that the announcement by the board with respect to the licensing requirement is a rule as defined in sec. 227.01 (3), Stats., and therefore reviewable in an action for declaratory judgment by virtue of sec. 227.05. The board contends that the statement of the board is not a rule. The circuit court agreed with the board and decided that no cause of action had been stated under sec. 227.05. The board concedes that the complaint would state a cause of action under sec. 269.56, governing declaratory judgment generally, if the action had been brought against the individual members of the board. It argues, however, that an action against the board is an action against the state, without its consent. The circuit court held, however, that the action, under sec. 269.56, may be brought against the board.

The order of the circuit court overruled the demurrer, and provided that the action should be considered as one under sec. 269.56, Stats., and not under sec. 227.05. The board phrased its notice of appeal so as to seek review of the order insofar as it overruled the demurrer and determined that the action was maintainable under sec. 269.56. Barry has attempted to appeal from the determination in the order that the action should not be deemed an action under sec. 227.05. The order is appealable only because it overrules a demurrer. The defendant board, which demurred, may appeal from it, but plaintiff may not. Upon the board’s appeal, however, Barry could ask us to review the ruling that no cause of action was stated under sec. 227.05, since reversal of that ruling would support the order overruling the demurrer. Under the circumstances we will treat Barry’s appeal as a request for such review.

2. Pertinent provisions of ch. 151, Stats. Ch. 151 is entitled “Pharmacy.” Sec. 151.01 provides for the state board of pharmacy, and sec. 151.01 (4) provides that the board shall cause prosecution of violations of the chapter. Ch. 424, Laws of 1947, created sec. 151.07, entitled “Dangerous Drugs,” generally forbidding the delivery of a dangerous drug except by a practitioner or upon prescription of a practitioner. This and other prohibitions contained in sec. 151.07 do not apply, however, to the wholesale delivery of dangerous drugs to persons enumerated in sec. 151.07 (8). These persons are pharmacists, practitioners, hospitals, and certain others. “Dangerous Drug” is defined, in part, as “any drug or drug-containing preparation, the original container of which bears the statement ‘Caution — federal law prohibits dispensing without prescription.’ ” Certain compounds included in the definition are enumerated.

Although sales at wholesale to the enumerated persons are not forbidden, sec. 151.04 (5), Stats., has, since 1955, provided that no person shall engage in the sale or distribution at wholesale to any of the classes of persons enumerated in sec. 151.07 (8) without first obtaining a license from the state board.

The letters sent by the state board announced the board’s position that sec. 151.04 (5), Stats., prohibits the shipment of prescription-legend drugs into Wisconsin to the persons enumerated without a license from the state board. Presumably the board will consider its duty is to seek prosecution of those who make such sales without a license, where jurisdiction can be obtained for such purpose.

3. May this action properly be.brought under sec. 269.56, Stats., against the State Board of Pharmacy? It is alleged that the board is threatening prosecution of Barry or its agents for failure to obtain a license; that sec. 151.04 (5), if properly interpreted, does not require Barry to be licensed in order to carry on its present business; and that if so applied, it would conflict with the constitution of the United States. Barry seeks a declaration that it has the right to continue its present business without being licensed. The attorney general concedes, on behalf of the board, that a similar action against the individual members of the board, alleging that they are proposing to act in excess of their authority as officers of the state, could be maintained under sec. 269.56.

In Berlowitz v. Roach action for declaratory judgment was brought against the state treasurer and other officers, naming each individually and as such officer. The court referred to sec. 269.56 (2), Stats., and said:

“This dearly grants to any party the right to proceed under the uniform dedaratory-judgment statute to have a statute construed with reference to a claimed right so long as it cannot be said to be an action against the state. It is argued that while the state is not named as a party defendant it is. the party in interest because the money realized from the collection of this tax is state property. We cannot agree with appellants’ position that this is an action against the state. It is an action against the enforcing officer to prevent him from doing that which it is claimed he has no legal right to do, and if respondent is correct in his position that the statute gives him no legal right to collect this tax the enforcing officer is then acting as an individual in excess of his authority and with no protection under the law. ...”

It is claimed that naming the board in its official name as defendant makes the action one against the state, and therefore improper in the absence of statutory consent.

It is very difficult to see, however, how an action for a judgment declaring that proposed official action is grounded on an improper construction of a statute has any greater effect upon the interests of the state if brought against a board as defendant, than if brought against the. members of the board. The purpose in either case is to determine whether a course of official action is consistent with the laws or constitution. The principle that such an action against individuals who are officers is not an action against the state has been termed a fiction, created “in order to find a way around sovereign immunity.” As a matter of practice, a decision unfavorable to the position of the officers in an action against them individually, is ordinarily recognized as final by the successor officers. Although there is a question whether a judgment against individual'officers is res judicata against the state and other officers, Professor Davis has pointed out that the state may be bound by judgment in an action against its officers where such officers are defended by the government’s counsel. If the state is bound by the result in any event, the reason for the distinction between suing the officers and suing the agency vanishes.

The supreme court of New Jersey has decided that an action for a declaratory judgment would lie against a state board where the plaintiff challenged the constitutionality of a statute and sought to restrain threatened enforcement. The court pointed out that a suit to restrain a state agency from executing an unconstitutional statute had been a common exercise of jurisdiction, and that acts done by the administrative agency in the enforcement of the law would have been reviewable on certiorari as in excess of power.

We agree with the learned circuit judge that the present action may properly be maintained against the board.

4. Is there a deject of parties? The board contends that Barry is attempting to secure an interpretation of sec. 151.04 (5), Stats., for the benefit of others than itself and points out that sec. 269.56 (11) requires that all shall be made parties who have or claim any interest which would be affected.

We have held'that sec. 269.56 (11), Stats., should not be construed as requiring that where a declaratory judgment as to the validity of a statute or ordinance is sought, every person whose interests are affected must be made a party. Although Barry’s prayer for relief suggests that it is seeking a ruling which will protect others as well as itself, it has not alleged that the action is brought on behalf of a numerous class. Barry does sufficiently show that its own interests are affected. Presumably any adjudication of the inapplicability or invalidity of the statute would- be limited to Barry’s method of doing business, as established by the-evidence. We do not consider it necessary that other manufacturers be made parties in order to proceed with the action.

5. Is the board’s statement, that out-of-state manufacturers must be licensed, a rule? Barry contends that the board’s statement is a rule as defined in sec. 227.01 (3), Stats. If that be true, it is subject to judicial review under sec. 227.05. Barry not only contends on review that the board’s statement violates constitutional provisions and exceeds statutory authority of the board, but alleges failure to comply with statutory rule-making procedures.

Sec. 227.01 (3), Stats., provides:

“ ‘Rule’ means a regulation, standard, statement of policy or general order (including the amendment or repeal of any of the foregoing), of general application and having the effect of law, issued by an agency to implement, interpret or make specific legislation enforced or administered by such agency or to govern the organization or procedure of such agency.”

The board’s statement involved herein fits the foregoing definition only if it is a “statement of policy ... of general application and having the effect of law,, issued . . . to . . . interpret . . .” sec. 151.04 (5), Stats.

It seems to us that the statement involved herein cannot be said to have the effect of law. If so, it does not fulfil the definition.

The statement was not issued nor filed in the form of a rule, and thus it could not be claimed in a criminal action that the board’s construction of the- statute has the effect of law. It is clear, moreover, that even if it had been so issued, it would not constitute what Professor Davis has termed a legislative rule. No statute has empowered the board to determine by rule to what types of sales sec. 151.04 (5), Stats., will apply and endowed such rule with the force of law. Sec. 227.01 (3) implies, however, that some interpretative rules may have the force of law, a proposition with which Professor Davis agrees and for which he cites authority. It is also suggested that whether or not interpretative rules of an administrative agency have the effect of law is really a question of degree.

“The conclusion is an easy one that the degree of authoritative effect of an interpretative regulation is likely to be high when the regulation depends heavily upon skills of the kind that the judges do not possess, and that the degree of authoritative effect is likely to be low when the judges and not the administrators are the experts, as on constitutional issues.”

The question on which the board took a position in its letters was not one of interpretation of a statute in the most ordinary meaning of the term. The statute, sec. 151.04 (5), expressly forbids the sale or distribution at wholesale of the prescription-legend drugs without a license. The board’s statement does not attribute anything but obvious meaning to those terms. To the extent that the board’s letters informed the manufacturers of the existence and terms of the statute, it was not a rule. Explanatory material which is merely informational is not within the definition of “rule.”

The board did take the position that the statute applies to sales made to persons within Wisconsin by manufacturers located outside the state. This seems not to be so much an interpretation- of the statute as a conclusion that the state has power and jurisdiction so to apply the statute, notwithstanding questions under the constitution of the United States which may arise where sales in interstate commerce are involved, particularly where the seller has only minimum contacts with this state.

The making of such legal claim by the board cannot, in our opinion, be said to have the effect of law. The question it purports to answer is not in any degree within' the expertise of the board. The board intends to recommend prosecutions in accordance with its pronouncement, but the correctness of its claim will be decided by the courts. The nature of the question is such that the courts will accord little if any authoritative effect to the fact that the board took such position.

It thus follows that the board’s pronouncement is not a rule under sec. 227.01 (3), Stats.

Barry contends that its position here is supported by Frankenthal v. Wisconsin Real Estate Brokers’ Board. There the real-estate brokers’ board had issued mimeographed instructions for renewal of real-estate brokers’ licenses to be issued by the board. It required that every member of a partnership must be licensed before it would license a partnership. This requirement represented a change in the board’s interpretation of the governing statute. For years it had interpreted the statute as permitting licensing of a partnership even though there were inactive partners who were not licensed. In accordance with the new instructions, the board denied applications of partnerships with inactive partners who had no license. We held that this announced change was a rule, as a “statement of policy ... of general application and having the effect of law, issued . . . to . . . interpret . . . legislation . . . administered by” the board. We held that such interpretation was unauthorized, but did not decide whether notice and hearing were required before adoption. We said: “When a party files an application for a license with an administrative agency and the latter points to some announced agency policy of general application as a reason for rejecting the application, such announced policy constitutes a rule, the validity of which the applicant is entitled to have tested in a declaratory action instituted pursuant to sec. 227.05, Stats.”

We said in Frankenthal that the mimeographed instruction, though not issued and filed as a rule, nevertheless was one under the definition in sec. 227.01 (3), Stats., i.e., that it was a statement of policy of general application having the effect of law. It could be argued with some reason that the instruction in Frankenthal was a rule by virtue of sub. (4) which required that a “statement of general policy . . . specifically adopted by an agency to govern its enforcement or administration of legislation” shall be filed as a rule. If the latter, notice and public hearing were not required before its adoption.

But whichever rationale be correct, the board in Franken-thal was relying on the instruction as a principle (or “rule”) controlling its administrative action which directly affected rights and interests, namely the denial of a license. As far as the board was concerned, the interpretation embodied in the instruction had the effect of law. The board had the means to enforce it as law and did so until invalidity was found on judicial review. In the case now before us, the board can only refer cases to a district attorney for prosecution, and its letters have only the force of an announcement that it will do so. There is a critical difference between the instructions involved in Frankenthal and' the pronouncement involved here.

By the Court. — Order affirmed.

Wilkie, J., took no part.

        Travelers Ins. Co. v. Fidelity & Casualty Co. (1964), 24 Wis. (2d) 38, 128 N. W. (2d) 71; Pavalon v. Thomas Holmes Corp. (1964), 25 Wis. (2d) 540, 549, 131 N. W. (2d) 331.

       Sec. 274.12 (2), Stats.

       Sec. 151.07 (1) (a), Stats., amended into present form by ch. 601, Laws of 1961, previously amended by ch. 545, sec. 4, Laws of 1959.

       Enacted by ch. 115, Laws of 1955, and amended by ch. 612, sec. 2, Laws of 1961.

       (1947), 252 Wis. 61, 64, 30 N. W. (2d) 256.

       See also John F. Jelke Co. v. Beck (1932), 208 Wis. 650, 661, 242 N. W. 576; Milwaukee v. Wegner (1951), 258 Wis. 285, 45 N. W. (2d) 699; Borden Co. v. McDowell (1959), 8 Wis. (2d) 246, 99 N. W. (2d) 146.

       3 Davis, Administrative Law Treatise, p. 553, sec. 27.03.

       3 Davis, supra, footnote 7, p. 578, sec. 27.06.

         Abelson’s Inc., v. New Jersey State Board of Optometrists (1950), 5 N. J. 412, 75 Atl. (2d) 867, 869.

        White House Milk Co. v. Thomson (1957), 275 Wis. 243, 249, 81 N. W. (2d) 725; Blooming Grove v. Madison (1957), 275 Wis. 328, 334, 81 N. W. (2d) 713.

       See sec. 227.05 (5), Stats., for grounds of invalidity. A rule must be filed (sec. 227.023 (1)) so that it may be published (sec. 227.025) and its adoption must, with certain exceptions, have been preceded with notice and public hearing unless it is the adoption, revocation, or modification of a statement of general policy coming within the provisions of sec. 227.01 (4) (sec. 227.02 (1)).

       1 Davis, Administrative Law Treatise, p. 299, sec. 5.03.

       1 Davis, supra, footnote 12, p. 300, sec. 5.03, and p. 307, sec. 5.04.

       1 Davis, supra, footnote 12, p. 316, sec. 5.05.

       Sec. 227.01 (5) (r), Stats.

       (1958), 3 Wis. (2d) 249, 257b, 88 N. W. (2d) 352, 89 N. W. (2d) 825.

       Sec. 227.02 (1) (d), Stats.


text:
    August Schmidt Company, Plaintiff and Appellant, v. Hardware Dealers Mutual Fire Insurance Company and another, Defendants and Respondents. Same, Plaintiff and Appellant, v. New Hampshire Fire Insurance Company and another, Defendants and Respondents. Schmidt (Hazel E.), Plaintiff and Appellant, v. Hardware Dealers Mutual Fire Insurance Company, Defendant and Respondent.
    [Case No. 97.]
    [Case No. 98.]
    [Case No. 99.]

      February 1 —
    March 2, 1965.

      For the appellants there were briefs by Lichtsinn, Dede, Anderson & Ryan of Milwaukee, and oral argument by Karl M. Anderson.

    For the respondents the cause was submitted on the brief of Wickham, Borgelt, Skogstad & Powell, attorneys, and Norman C. Skogstad and Richard E. Sommer of counsel, all of Milwaukee.

       Companion case previously reported, Schmidt v. Chapman, ante, p. 11.

   Hallows, J.

At the outset we are met with the defendants’ objection that the plaintiffs have not perfected their appeal. The appeal is from what is designated an “Order on Motions after Verdict as to Liability” which in the plaintiffs’ brief is characterized as an interlocutory judgment. The order grants the defendants’ motion for a judgment dismissing the complaints and is not an appealable order under sec. 274.33, Stats. Lentz v. Northwestern National Casualty Co. (1963), 19 Wis. (2d) 569, 120 N. W. (2d) 722. The order is not a judgment, intermediate or final. However, after the notice of appeal was served a judgment dismissing the complaints was entered on July 8, 1964, and is before this court in a supplemental return requested by this court. Under sec. 274.11 (4), this court has jurisdiction of the subject matter of an appeal upon the entry of an appealable judgment. Under sec. 269.51, dealing with the waiver of irregularities and lack of jurisdiction on appeal, we have held that the formalities involved in an appeal, such as proper notice, relate only to the question of this court’s jurisdiction over the parties, not the subject matter of the appeal. The language in Jaster v. Miller (1955), 269 Wis. 223, 69 N. W. (2d) 265, relied on by the defendants, to the effect that parties cannot either by failure to raise the question or by consent confer jurisdiction upon this court to review an order which is not appeal-able, has been qualified by the amendment to sec. 274.11 (4) and by recent decisions of this court. It is now established that although no proper notice of appeal has been served if an appealable order or judgment has been entered a respondent by participating in this court in the review of the merits of the judgment without making an appropriate and timely objection to the jurisdiction over his person waives the objection. Estate of Burns (1964), 23 Wis. (2d) 175, 127 N. W. (2d) 239; Baumgarten v. Jones (1963), 21 Wis. (2d) 467, 124 N. W. (2d) 609; Town of Madison v. City of Madison (1960), 12 Wis. (2d) 100, 106 N. W. (2d) 264; Asen v. Jos. Schlitz Brewing Co. (1960), 11 Wis. (2d). 594, 106 N. W. (2d) 269. Here, a stipulation was entered into continuing these cases until the hearing and determination had been had in the companion case of Schmidt v. Chapman, supra. A stipulation was made extending the time to serve the respective briefs. No motion was made to dismiss the appeal and the question is raised for the first time •in the defendants’ briefs. The defendants have waived the objection.

This appeal could be decided on the ground that the judgment which was entered dismissing the actions was requested by the plaintiffs and therefore under sec. 270.39, Stats., they have no standing on appeal. See Fox v. Kaminsky (1942), 239 Wis. 559, 2 N. W. (2d) 199; First Wisconsin Trust Co. v. Schmidt (1921), 173 Wis. 477, 180 N. W. 832; Ferry v. State (1954), 266 Wis. 508, 63 N. W. (2d) 741. It is clear from' the record the plaintiffs moved after verdict to amend their complaint to conform to the proof in the case against the Hersh Construction & Engineering Company and to enter a judgment dismissing the complaints in these cases on their merits. However, the trial court in its decision on motions after verdict stated that it granted the- motion of the defendant insurance companies in these cases for a judgment dismissing the complaints and the order so states. On this state of the record we prefer not to place the disposition of the appeal on this ground but to consider the merits of the substantive issues raised.

Plaintiffs argue that these cases involving insurance policies should not have been consolidated with the negligence case against Chapman, Hersh, and Saltzmann. The plaintiffs as a matter of right are not entitled to have this question reviewed because they failed to move for a new trial on such ground. Presser v. Siesel Construction Co. (1963), 19 Wis. (2d) 54, 119 N. W. (2d) 405; Clements v. Mutual Service Casualty Ins. Co. (1961), 13 Wis. (2d) 549, 109 N. W. (2d) 98; Michalski v. Wagner (1960), 9 Wis. (2d) 22, 100 N. W. (2d) 354; Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 80 N. W. (2d) 380. We point out, however, the consolidation of cases for the purpose of trial rests largely in the discretion of the trial court and is usually granted in the administration of justice when no prejudice will result from trying the several cases together. Keplin v. Hardware Mut. Casualty Co. (1964), 24 Wis. (2d) 319, 129 N. W. (2d) 321, 130 N. W. (2d) 3; Freuen v. Brenner (1962), 16 Wis. (2d) 445, 114 N. W. (2d) 782; Braun v. Wisconsin Electric Power Co. (1959), 6 Wis. (2d) 262, 94 N. W. (2d) 593. In these cases the same facts which gave rise to a question of negligence in the one and of insurance liability in the others were the same. The cases were not merged together in one case but were only tried together, each keeping its own distinctive characteristics and its own separate judgment.

The plaintiffs contend they were prejudiced because the consolidation of the cases confused the concepts of contract and tort and only a question concerning negligence was submitted. This would be true if the jury were not properly instructed. The plaintiffs requested a separate inquiry of the jury on whether the front-end loader struck the wall of the plaintiffs’ building, which was refused. This denial would have been error if these cases had been tried separately from the negligence case, as that was the only issue in these cases. However, the jury was instructed under the inquiry of Saltz-mann’s negligence that it could find Saltzmann negligent only if his front-end loader struck the wall. With these instructions the negligence question was not confusing in its dual purpose of also determining the contract issue. The jury’s finding that Saltzmann was not negligent under the instructions given can only mean that Saltzmann’s front-end loader did not strike the plaintiffs’ wall.

Perhaps the most-important issue on this appeal is whether there is sufficient credible evidence to support this finding in the verdict viewed in the light most favorable to the verdict, which is the test on appeal. Springen v. Ager Plumbing & Heating, Inc. (1963), 19 Wis. (2d) 487, 120 N. W. (2d) 692; Bleyer vs. Gross (1963), 19 Wis. (2d) 305, 120 N. W. (2d) 156; Dickman v. Schaeffer (1960), 10 Wis. (2d) 610, 103 N. W. (2d) 922. The testimony on this point was conflicting and presented a jury question. Several of the plaintiffs’ witnesses testified the front-end loader struck the wall. The men doing the grading testified the wall was not struck by the loader. The plaintiffs point to certain scratches or gouges on the lower wall as providing uncontradicted physical proof that the loadér struck the wall. It is argued the verdict cannot stand against this physical evidence, relying on Nitka v. Van Camp (1949), 256 Wis. 119, 40 N. W. (2d) 570; McKnelly v. Brotherhood of American Yeomen (1915), 160 Wis. 514, 152 N. W. 169, for the proposition that human testimony in contradiction to physical facts and common knowledge will not support a verdict. The difficulty with this contention is the assumption of the time when the gouge marks on the wall were made. The wall collapsed and most of the debris fell into the excavation covering the foundation and footings. This debris was later removed by a front-end loader. It was testified that after the debris was removed scratches or gouges on the wall were noticed. A jury could have reasonably believed and apparently did that these scratches or gouges on the wall were made when the wall collapsed or during the removal of the debris and not prior to the collapse of the wall. Viewing the evidence most favorable to the verdict we must accept this version and considering the other testimony we must conclude there is credible evidence sufficient to sustain the. verdict.

By the Court. — Judgments affirmed.