text:
    Philipp Lithographing Company, Respondent, v. Babich and others, Appellants.

      April 29

    June 1, 1965.

      For the appellants there was a brief and oral argument by William R. Schnepp, attorney, and Royal R. Cass of counsel, both of Milwaukee.
    For the respondent there was a brief by Petrie, Stocking, Meixner & Zeisig, attorneys, and James L. Stocking of counsel, all of Milwaukee, and oral argument by James L. Stocking.

       Motion for rehearing denied, with costs, on September 7, 1965.

   Wilkie, J.

Appellants construe a finding of fact that the parties did business together “between the 7th day of May, 1960, and the 30th day of December, 1960,” as meaning that there was only one contract, and attack this as error. But the conclusion that there was but a single contract does not logically follow from a simple recitation of the undisputed fact that the parties had dealings during that particular period of time. In addition, it is apparent from the specific reference in its decision to the “several jobs,” that the trial court was aware of the individuality of the contracts. Furthermore, even assuming that the trial court mistakenly found the existence of only one agreement, this finding does not operate to upset the judgment. This is because the present suit — for an uncontested amount of money — turns not on the number of contracts, but rather on who entered into them.

The sole issue presented on this appeal is whether the trial court erred in determining that appellants, individually, rather than House of Paul, Inc., were liable on the third contract.

It is undisputed that negotiations for the first printing contract began before the “House of Paul” was incorporated. Respondent claims that appellants continued to hold themselves out as partners during negotiations for the last contract. Appellants counter that by this time respondent had notice of the change in form of the business from a partnership to a corporation. The general rule is that partners who continue to hold themselves out as such after the formation of a corporation cannot escape responsibility for contracts entered into after the change in business status without adequate notice that the partnership has been dissolved. This is especially true when the corporation operates under the same name and circumstances as the partnership. The trial court found that respondent “received no actual notice of said incorporation” from appellants and that appellants “continued to deal with [respondent] as partners.” These findings will not be upset unless against the great weight and clear preponderance of the evidence.

Appellants gave no formal notice of the alteration of the business status. Thus, if there was notice, it must necessarily have arisen from the particular circumstances in the case. It is significant that the Dun & Bradstreet report received August 19, 1960 — three months after the actual incorporation — described Schnepp and Babich as partners and went on to declare that the partners “may incorporate in the near future.” Respondent, through Boesel, relied on this report. Appellants question the reliability of these statements because they were conclusions of the Dun & Bradstreet reporter. But the information upon which the report was based was obtained in an interview with appellants Babich and Schnepp. If a trained investigator could not learn of the incorporation as a result of an interview with two corporate officers, the trial court could reasonably have found that such knowledge was unavailable to respondent.

In response to a demand for payment, respondent’s president, Frederick Glantz, received a letter from appellant Schnepp on August 1, 1961. This letter was on “House of Paul” stationery, was signed by Schnepp in a personal rather than a corporate capacity, and explained that payments had ceased because "we had to put the major portion of our income back into stock in order to continue our growth.” (Emphasis added.) Schnepp continued that on the basis of “our sales, I feel confident that we” can make regular payments “on our account arid liquidate our debt.” (Emphasis added.) The form and substance of this letter indicate that appellants were still holding themselves out as partners well after the contract was even entered into.

The payment on the first two contracts and the three part payments made on the last one were made by “House of Paul, Inc.” checks. Appellants contend that this was sufficient to put respondent’s officers or agents on notice that “House of Paul” had been incorporated. However, testimony discloses that respondent’s accounts receivable were handled by a bookkeeper-employee, and that the officers of the company did not see any of the checks or learn that payment was actually made by corporate check. Nor, under the circumstances, can appellants escape liability because the bookkeeper saw the corporate checks. This is because she was completely unaware of the negotiations between the parties, and could not be expected to attach any significance whatsoever to the fact that the account was paid by corporate check.

We conclude, therefore, that the disputed findings of the trial court are not against the great weight and clear preponderance of the evidence.

By the Court. — Judgment affirmed.

Currie, C. J., took no part.

       40 Am. Jur., Partnership, p. 186, sec. 81; Anno. 89 A. L. R. 986; see also First Nat. Bank v. Conway (1886), 67 Wis. 210, 30 N. W. 215.

       Ibid.

        Hope Acres, Inc., v. Harris, ante, p. 285, 134 N. W. (2d) 462; Klapps v. American Ins. Co. (1965), 26 Wis. (2d) 664, 133 N. W. (2d) 248.

       3 Am. Jur. (2d), Agency, p. 639, sec. 276, states: “As a general rule, the knowledge of an agent may be imputed to the principal only where it is relevant to the agency and to the matters entrusted to the agent. Hence, knowledge acquired or notice received by an agent which does not pertain to the duties of the agent, which does not relate to the subject matter of the employment, or which affects matters outside the scope of his agency is not chargeable to the principal unless actually communicated to him. In other words, the knowledge or notice must come to an agent who has authority to deal in reference to those matters which the knowledge or notice affects.”
      See also Restatement, 1 Agency (2d), p. 585, sec. 268, comment c, which states, in part, as follows: “The principal is not bound by a notification directed towards an agent whose duties or apparent duties have no connection with the subject matter to which the notification relates. It must be given to one who has, or appears to have, authority in connection with it, either to receive it, to take action upon it, or to inform the principal or some other agent who has duties in regard to it; . . .”
      See Johnson v. Associated Seed Growers, Inc. (1942), 240 Wis. 278, 282, 3 N. W. (2d) 332.


source: Caselaw Access Project

author: Beilfuss, J.

license: Public Domain

text:
    Schwalbach and wife, Plaintiffs and Respondents, v. Antigo Electric & Gas, Inc., Defendant and Respondent: International Telephone & Telegraph Corporation, Defendant and Appellant.

      April 30

    June 1, 1965.

      For the appellant there was a brief by Smith, Puchner, Tinkham & Smith of Wausau, and oral argument by Richard P. Tinkham.

    For the respondents Lawrence and Gertrude Schwalbach there was a brief by Graunke & Boone of Wausau, and oral argument by Walter A. Graunke and Clinton A. Boone.

      ■ For the respondent Antigo Electric & Gas, Inc., there was a brief by Schmitt, Wurster, Tinglum & Nolan of Merrill, and oral argument by Sverre Tinglum.

   Beilfuss, J.

The principal issue is whether the credible evidence is sufficient to sustain the jury findings (1) that a malfunction of the pilot relay caused the explosion, and (2) that International was negligent in the manufacture of the pilot relay.

International also contends that the verdict is inconsistent insofar as it found Antigo negligent as to inspection of the pilot relay but not causally so, and that the answers to damage questions cannot be sustained because of the insufficiency of the proof and erroneous ruling as to admission of evidence.

In testing the sufficiency of the evidence to sustain a jury verdict, the following rules apply:

“When a jury verdict is attacked we inquire only whether there is any credible evidence that, under any reasonable view, supports the verdict. This is especially so when the verdict has the trial court’s approval.” Cheetham v. Piggly Wiggly Madison Co. (1964), 24 Wis. (2d) 286, 290, 128 N. W. (2d) 400.
“When several inferences may reasonably be drawn from credible evidence, one of which will support a claim of one of the parties and the other inferences will not, it is for the jury to determine the proper inference to be drawn from the conflicting evidence. Although we could sustain a contrary result if found by the jury, it is our duty not to set aside a verdict when it is approved by the trial court, as here, and when there is credible evidence to sustain it.” Dickman v. Schaeffer (1960), 10 Wis. (2d) 610, 616, 103 N. W. (2d) 922.

A companion and qualifying rule is that a verdict cannot stand on conjecture, unproved assumptions, or mere possibilities.

While we have reviewed the entire record we report only such facts that support or tend to support the verdict under the rules stated above.

We first consider the issues involving the explosion.

In 1961, Antigo sold and installed a Coleman gas furnace for the plaintiffs in the basement of their farm home in the village of Eland, Shawano county, Wisconsin.

The furnace was designed to use liquid petroleum gas (heavier than air), which was supplied from a storage tank located in the yard. It came equipped with a pilot relay. A pilot relay is an electrically operated safety device. Its function is to shut off the supply of gas when the pilot light is not burning.

Two valves are principally involved — one is a manually operated valve that can shut off the gas at its source at the tank — -the other is an automatic valve that controls the flow of fuel to the burner pot of the furnace. If the room temperature is below the thermostat setting this valve automatically opens and fuel is supplied to the burner; when the room temperature reaches the thermostat setting, the valve automatically shuts off. If (for a variety of reasons) the pilot light is not burning and room temperature is below the thermostat setting, the automatic valve would open and fuel would run into the burner or fire pot and eventually overflow, creating a dangerous condition because of the combustible character of the fuel.

The function of the pilot relay is to prevent this situation. It is to shut off or close the automatic valve when the pilot light is out. The pilot light is supposed to be burning at all times except when intentionally extinguished. The pilot relay acts only when the pilot light is out. Adjacent to the pilot light is a thermocoupler. The pilot light supplies continuous heat to the thermocoupler. If the pilot light is not burning the thermocoupler then cools and transmits an electrical impulse to pilot relay. It breaks a contact in the pilot relay which then in turn closes the automatic valve and cuts off the supply of fuel to the burner.

Between the installation in May, 1961, and the explosion in October, 1963, Antigo made several service calls to plaintiffs’ home to check the furnace.

In April of 1963, Antigo, in response to a service call, replaced the pilot relay on plaintiffs’ furnace with one taken from a demonstrator furnace in Antigo’s showroom. This pilot relay was manufactured by General Controls in 1959 and was mounted on a Coleman gas furnace. In the showroom the pilot relay had been demonstrated five or six times and functioned properly on each occasion.

In June and July, 1963, plaintiffs called Antigo and complained of a smell of gas. Antigo checked all the lines for leaks and found none. The pilot relay was not checked after it was installed in plaintiffs’ home.

In October, 1963, a violent explosion in the basement demolished the plaintiffs’ home and their furnishings.

The day after the explosion an employee of Antigo, a Professor Harrison, and others went to the scene of the explosion to determine the cause of the explosion. It was found that the pilot relay was not functioning. The pilot relay was removed from the furnace. An examination revealed that the contact points were not in a position to shut off the valve supplying fuel to the furnace.

Professor Harrison is an associate professor of mechanical engineering at the University of Wisconsin. He is a registered engineer. He has taught courses relating to the design of automatic controls and worked for a company manufacturing automatic controls. He has coauthored two books on automatic controls. These texts are widely used. He does research and consultation work, and has been a consultant in respect to accidents involving automatic controls.

Professor Harrison testified that he tested the pilot relay electrically both at the scene of the explosion and at his office and found it was closed and not operating as a safety device. It was his opinion that it was not damaged in the explosion. The relay is a sealed unit with the seal intact at the time it was examined. It did not bear any marks or evidence to indicate it might have been mishandled or damaged in the explosion so as to cause it to malfunction. He further testified that a nonfunctioning pilot relay can create a highly dangerous situation because of the explosive characteristics of the liquid gas. It was his opinion that the pilot relay was faulty in design in that it did not have a “window” for visual inspection and that it was faulty in its manufacture because of not enough clearance between the contact points (it had a clearance of 40/1000 of an inch — Harrison stated he would not design or approve one with less than 20/1000), and that the pin to push the points apart was too short.

Harrison then testified that in his opinion his investigation revealed that other possible causes of the explosion were eliminated; that the pilot relay was not functioning and was the cause of the explosion. It was his further opinion that the pilot relay was faulty when it left the factory and that it never worked properly. When confronted with the testimony that this pilot relay had worked properly in demonstrations in Antigo’s showroom, he receded from his opinion that it did not function properly when it left the factory but adhered to his opinion that it was not functioning prior to the explosion and caused the explosion.

A Mr. Laurence Biggie, an employee of International, was called as an expert witness. For many years he has designed and tested automatic gas controls. It was his opinion that the pilot relay was properly tested and approved before it left the factory, that it could have been damaged in the explosion and that the explosion could have been caused by other gas leaks in the system. The main gas valve was disassembled. Some small foreign particles were found under the diaphragm. Biggie testified this could cause a gas leak — Harrison said it would not.

The jury could accept or reject the testimony of the experts. The credibility of the witnesses and the weight to be given their testimony was within the province of the jury.

Mr. Biggie did not express an opinion as to what specifically caused the explosion but rather testified as to ways it could have happened.

International contends that Professor Harrison’s opinions were based upon assumptions that were either not established or demonstrated not to be true.

A review of the record reveals that Professor Harrison did not deviate from his opinion that the pilot relay was not properly manufactured as a safety device, that its design was inadequate for visual testing, that the pilot relay malfunctioned prior to the explosion, and that it was the cause of the explosion. While he did concede that the pilot relay functioned in the demonstrations, he did- not concede that the method of testing was adequate or complete.

Professor Harrison’s testimony if accepted by the jury, together with the testimony of Antigo’s employees that they checked the system on several occasions and had never found a leak in any other part of the system, is sufficient credible evidence to permit an inference that the pilot relay did not function properly before the explosion and was the cause of the explosion. Upon this evidence they could further find that the pilot relay was manufactured in a negligent manner.

In Ryan v. Zweck-Wollenberg Co. (1954), 266 Wis. 630, 636, 64 N. W. (2d) 226, this court stated:

“It is a definitely settled principle of law in this state that a manufacturer who places a manufactured article in trade and commerce not inherently, but because of its negligent construction, imminently dangerous to life and limb, is liable to one who sustains injuries by reason of such negligent construction. Flies v. Fox Bros. Buick Co. (1928), 196 Wis. 196, 207, 218 N. W. 855; and Marsh Wood Products Co. v. Babcock & Wilcox Co. (1932), 207 Wis. 209, 223, 240 N. W. 392.”

International contends that the verdict is inconsistent in that the jury found Antigo negligent as to inspecting the pilot relay and then found this negligence was not a cause. Antigo does not challenge the jury’s finding of negligence but maintains that its negligence was not causal.

Antigo did not check the pilot relay to determine whether it was working properly when it was installed in April, 1963, nor any time thereafter when they were called for service. Harrison testified the pilot relay could have ceased to operate properly at any time between the installation in April and the explosion in October. Mr. Duff, Sr., the principal officer of Antigo, testified that he had replaced several (about 50) pilot relays on Coleman gas furnaces throughout his twenty or more years in the business and that a pilot relay could operate all right when checked and fail to work one-half hour later. This testimony, if accepted by the jury, coupled with the fact that a visual inspection was impossible was sufficient evidence to permit the jury to find that the negligence in failing to check the pilot light would not have revealed a malfunction and was not a substantial factor in producing the explosion.

The jury found the plaintiffs' damages to be (a) house— $7,500, (b) furniture, household furnishings, and appliances' — $4,000, (c) loss of use of the house — $875, (d) demolition of house and cleaning up debris — $1,425, and (e) loss of food and canned goods — $300.

International challenges the jury award for the house, furniture, household furnishings, and appliances and for the loss of use of the home.

The Schwalbach home was built in 1901 with an addition to it about twenty years later. Subsequent additions (a glassed-in porch), repairs, and renovations were made by the plaintiffs. The home was modernized, well kept, and in good repair. In the ten years immediately prior to the explosion the plaintiffs had expended about $5,600 in renovation and repair of the house.

Two real-estate brokers who were qualified as appraisers testified in behalf of the plaintiffs. A Mr. Wendorf testified the house had a fair market value of $9,700 before the explosion and no value after the explosion. He based his opinion upon cost of replacement less a 25 percent depreciation. A Mr. Nuske testified the fair market value was a replacement cost of $12,900 less 25 percent for depreciation. Neither of these expert witnesses considered comparable sales in arriving at their opinion. Expert witnesses for the defendants did consider comparable sales and testified to substantially lower values.

The trial court properly instructed the jury as to the definition of “fair market value” as the price arrived at between a willing but not obligated buyer and seller. The replacement-cost-less-depreciation method of determining fair market value is commonly used and is permissible. The value arrived at by this method is not conclusive but is evi-dentiary and, together with other evidence, can be considered by the jury in arriving at their finding of fair market value. The jury award of $7,500 for the loss of the house is within the credible evidence and must be sustained.

A part of the furniture of the plaintiffs was inherited by Mr. Schwalbach. Most of the furniture, furnishings, and appliances were purchased new by the plaintiffs over a period of years. The cost of these items new was in excess of $6,000.

Wendorf testified that in his opinion the fair market value of these items was $5,000 before the explosion and no value after. On cross-examination he stated that in this instance replace value and fair market value were the same. Upon further cross-examination and examination by the court as to the definition of “fair market value,” he revised his opinion and then testified the furniture and appliances had a fair market value of $2,300. Mr. Nuske testified in much the same manner and likewise revised his opinion of fair market value to be $2,300. Again witnesses for the defendants testified to lower values based upon second-hand furniture sales. The jury found the loss for this personal property to be $4,000. The trial court rightfully concluded that evidence did not sustain this finding and reduced the award to $2,300. We find no abuse of discretion by the trial court in reducing the award to this amount and this order of the trial court is approved.

The evidence in the record as to the loss of use of the home reveals only the following: The plaintiffs testified that they purchased a used trailer home, placed it upon the premises and used it as living quarters while the house was being rebuilt. The cost of the trailer was $1,005 and it had or would have, at such time as the house was completed, a resale value of $800. The installation costs for electrical and telephone service was $69.80. Upon this evidence the jury found the loss of use to be $875.

The proper measure of damages for loss of use of the dwelling house in this instance is an amount equal to the fair rental value of a house of like kind and quality in the area of Eland for such length of time as was reasonably necessary to reconstruct a house comparable to the one destroyed, plus the reasonable value of necessary incidentals occasioned by moving.

The evidence in the record does not meet this measure of damages. While the evidence offered may have some evi-dentiary value it is not sufficient to sustain the award of $875. The order of the court and judgment rendered insofar as it allows a recovery of $875 for loss of use of the house is reversed and a new trial is awarded on this single issue. We are reluctant to order a new trial limited to this relatively minor issue but we feel compelled to do so. It is our hope that this issue can be negotiated and adjusted by the parties before the retrial.

International contends the trial court erred in refusing to admit into evidence an application for insurance (Exhibit 33), signed by Mr. Schwalbach, wherein he stated the value of the house was $2,500 and the furniture was $1,500 as an admission against interest. The trial judge in ruling on the admissibility of the exhibit stated that the application for insurance did not necessarily constitute a statement or opinion of value, that anyone can insure his property for any amount less the actual value if he so desires. He opined that if the exhibit was a proof of loss it would be a statement of value and admissible, but that an application for insurance for a stated value did not bind nor necessarily indicate the applicant’s opinion as to value and as such was not an admission against interest. We agree. It was not error to exclude the exhibit.

By the Court. — Judgment reversed, and new trial ordered on issue of damages for the loss of use of the house. Judgment in all other respects affirmed. Costs allowed to respondents.

        Wadzinski v. Cities Service Oil Co. (1957), 275 Wis. 84, 80 N. W. (2d) 816; Arledge v. Scherer Freight Lines, Inc. (1955), 269 Wis. 142, 68 N. W. (2d) 821; DeWitz v. Northern States Power Co. (1955), 269 Wis. 548, 69 N. W. (2d) 431; Fonferek v. Wisconsin Rapids Gas & Electric Co. (1954), 268 Wis. 278, 67 N. W. (2d) 268; Pazdernik v. Pride (1940), 235 Wis. 391, 291 N. W. 798; Pinter v. Wenzel (1920), 173 Wis. 84, 180 N. W. 120; Quass v. Milwaukee Gas Light Co. (1919), 168 Wis. 575, 170 N. W. 942.


author: Gordon, J.

text:
    Forde and wife, Appellants, v. Industrial Commission and others, Respondents.

      April 30

    June 1, 1965.

      For the appellants there were briefs by Jasper, Winner, Perina & Rouse of Madison, and oral argument by Robert I. Perina.

    For the respondent Industrial Commission the cause was argued by James P. Altman, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and Gordon Samuelsen, assistant attorney general.
    For the respondents Employers Mutual Liability Insurance Company and Kisting Construction Company there was a brief by Klueter, Larson & MacKensie of Wausau, and oral argument by Elton E. Larson.

   Gordon, J.

The Industrial Commission found that George and Leona Forde were not solely dependent for support upon their son, Lyle, and we believe that such determination must be upheld.

The record shows that there were a number of sources of support for the claimants other than their son, Lyle. George Forde had some small ($350) earnings from his sales of cattle feed. Even though George Forde used Lyle’s automobile in connection with this sales work, the commission could nevertheless treat such earnings as an item of support not wholly supplied by Lyle. In addition, Leona Forde earned $25 harvesting tobacco, and the sum of $98 was received from the Soil Bank. As a more-significant factor, the commission found that the claimants received their shelter from a source other than Lyle.

As appellants, George and Leona Forde contend that their own earnings should be regarded as de minimis. They also contend that Lyle Forde not only operated the farm but also that he assumed his parents’ agreement to purchase the farm from Ole and Selmer Forde; upon this reasoning it is urged that it was Lyle who actually supplied shelter to the claimants.

The burden of proving total dependency is on the claimants. Fitz v. Industrial Comm. (1960), 10 Wis. (2d) 202, 205, 102 N. W. (2d) 93; Neumann v. Industrial Comm. (1950), 257 Wis. 120, 122, 42 N. W. (2d) 445; Beem v. Industrial Comm. (1943), 244 Wis. 334, 337, 12 N. W. (2d) 42. In Burrows v. Industrial Comm. (1944), 246 Wis. 152, 154, 16 N. W. (2d) 434, it is stated:

“There is no middle ground. Dependency is either partial or total. To be total the applicant must be wholly and solely dependent.”

Even though the independent earnings of George and Leona Forde were very modest, we cannot say that they were de minimis in light of the family’s meager standard of living which is reflected in the record. In our opinion, the earnings of the claimants and the outside support furnished to them were not so insignificant as to bring into play the rule that de minimis non curat lex. Neumann v. Industrial Comm., supra. Cf. Cherry v. Industrial Comm. (1944), 246 Wis. 279, 16 N. W. (2d) 800, and McKesson-Fuller-Morrisson Co. v. Industrial Comm. (1933), 212 Wis. 507, 250 N. W. 396.

Although George and Leona Forde argue that Lyle had assumed the obligation to pay for the farm and had taken over the management, we believe that the record supports the conclusion that legal title was in Ole and Selmer Forde, and that George Forde had an oral agreement to repay the purchase price to his brothers. The record would not, however, support a finding that Lyle was the owner of the farm; this is true even though there may have been an intention that Lyle would become the owner at some future time.

Upon the evidence, it was proper for the commission to have concluded that shelter was provided to George and Leona Forde from a source other than their son, Lyle.

In conclusion, we believe that the commission was not bound to find that Lyle had provided the sole support of his parents when the latter earned approximately $475 in 1962 and also received from someone other than Lyle their residence and a farm which had income-producing potential.

The respondents have moved to strike the appendix on the grounds that it was not served within the time required by sec. 251.43, Stats., and failed to comply with the provisions of sec. 251.34. The court has concluded that, as a matter of discretion, such motion should be denied.

By the Court. — Judgment affirmed.


author: Currie, C. J.

text:
    Walker Manufacturing Company, Respondent, v. Industrial Commission, Appellant: Holsinger and others, Intervenors.

      April 27

    June 3, 1965.

      For the appellant Industrial Commission the cause was argued by E. Weston Wood and John E. Armstrong, assistant attorneys general, with whom on the briefs was Bronson C. La Follette, attorney general.
    For the respondent there was a brief by Seyjarth, Shaw, Fairweather & Geraldson and Lee C. Shaw, Ray J. Schoonhoven, and Rody P. Biggert, all of Chicago, Illinois, and by LaFrance, Thompson, Greenquist, Evans & Dye and Alfred F. LaFrance and Adrian P. Schoone, all of Racine, and oral argument by Lee C. Shaw.

   Currie, C. J.

This appeal presents these two issues:

(1) Whether the commission lacked jurisdiction to act upon the instant complaint made to it against Walker by virtue of federal pre-emption over the field of collective bargaining which affects interstate commerce.

(2) Does the record sustain the commission’s determination that Walker violated the age-discrimination prohibition of the Wisconsin Fair Employment Act (secs. 111.31-111.37, Stats.)?

The provisions of the Wisconsin Fair Employment Act which are material to the consideration of both issues are as follows:

Sec. 111.32. “Definitions. When used in this subchap-ter: .. .
“(5) (b) It is discrimination because of age:
“1. For an employer, . . . because an individual is between the ages of 40 and 65, ... to terminate from employment such individual, or to discriminate against such individual in promotion, compensation or in terms, conditions or privileges of employment; . . .
“(c) Nothing in this subsection shall be construed to prevent termination of the employment of any person physically or otherwise unable to perform his duties, nor to affect any retirement policy or system of any employer where such policy or system is not a subterfuge to evade the purposes of this subsection, . . .”
Sec. 111.36. “Commission powers. (1) The commission may receive and investigate complaints charging discrimination or discriminatory practices in particular cases, and give publicity to its findings with respect thereto.”

Federal Pre-emption Issue.

Walker’s position with respect to the issue of federal preemption is: (1) The application of the age-discrimination prohibitions of the Wisconsin Fair Employment Act to the instant situation would infringe on a subject which Congress has provided should be left to free collective bargaining between Walker and the Union. (2) In any event, Walker’s acts in retiring employees because of reaching age sixty is arguably an unfair labor practice of secs. 8 (a) (1) and (3), and 8 (b) (1) (A) and (2) of the National Labor Relations Act, as amended by sec. 101 of the Labor Management Relations Act (Taft-Hartley Act), 29 USCA, sec. 158.

Because Walker is engaged in interstate commerce it is subject to the provisions of the Labor Management Relations Act. The stated policy of the act is to encourage the practice and procedure of collective bargaining. Sec. 1 of the National Labor Relations Act, as amended by sec. 101 of the Labor Management Relations Act (29 USCA, sec. 151), states this policy in part as follows:

“It is hereby declared to be the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce ... by encouraging the practice and procedure of collective bargaining and by protecting the exercise of workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aid or protection.” (Italics supplied.)

Sec. 7 of the National Labor Relations Act, as amended by sec. 101 of the Labor Management Relations Act (29 USCA, sec. 157) guarantees to employees the right to bargain collectively and states in part as follows:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining. . . .” (Italics supplied.)

Other provisions of the act implement and augment the above rights. The refusal by either an employer or a bargaining agent to bargain collectively is an unfair labor practice (secs. 8 (a) (5) and 8(b) (3) of the act, 29 USCA, sec. 158). It has been long established that pension and retirement plans are a mandatory subject of bargaining about which the company could not refuse to bargain, if so requested. Inland Steel Co. v. N. L. R. B. (7th Cir. 1948), 170 Fed. (2d) 247, certiorari denied (1949), 336 U. S. 960, 69 Sup. Ct. 887, 93 L. Ed. 1112.

Here Walker and the Union by collective bargaining did agree upon a pension plan which gave Walker the option of retiring employees between ages sixty and sixty-five by paying them retirement benefits which were greater than payable to employees who retired at or after age sixty-five. In fact, the benefits payable to an employee who is retired at the option of Walker between ages sixty and sixty-five are double those who voluntarily retire after age sixty.

However, the mere fact that a matter may be a permissive or mandatory subject of collective bargaining does not preclude all exercise by a state of its police power with respect thereto. This is made clear by the following statement made in San Diego Unions v. Garmon (1959), 359 U. S. 236, 243, 79 Sup. Ct. 773, 3 L. Ed. (2d) 775:

“However, due regard for the presuppositions of our embracing federal system, including the principle of diffusion of power not as a matter of doctrinaire localism but as a promoter of democracy, has required us not to find withdrawal from the States of power to regulate where the activity regulated was a merely peripheral concern of the Labor Management Relations Act.”

We deem that the principles to be considered in determining whether or not the age-discrimination prohibitions of the Wisconsin Fair Employment Act are of “merely peripheral concern of the Labor Management Relations Act” are to be found in the cases of Teamsters Union v. Oliver (1959), 358 U. S. 283, 79 Sup. Ct. 297, 3 L. Ed. (2d) 312, and Colorado Comm. v. Continental (1963), 372 U. S. 714, 83 Sup. Ct. 1022, 10 L. Ed. (2d) 84.

The Oliver Case was concerned with whether federal pre-emption excluded application of Ohio’s antitrust statute to the provisions of a collective-bargaining agreement entered into between the teamsters union and motor carriers engaged in interstate commerce in twelve midwestern states. The Ohio statute made it illegal for two or more persons to enter agreements to keep the price of transportation at a fixed or graduated figure. An article of the collective-bargaining agreement stated that the lessor-driver of any motor vehicle leased to a covered employer is the employee of the latter; required that such lessor receive separate checks for his wages and for equipment rental; fixed the wages of such a lessor-driver at the rate payable to drivers similarly circumstanced who drive carrier-owned vehicles; and regulated the minimum rental and certain other terms of lease when a motor vehicle is leased to a carrier by an owner who drives his vehicle in the carrier’s service. The court found that the objective of these provisions of the agreement was to protect the negotiated wage scale against possible undermining through diminution of the lessor-owner’s wages for driving which might result from a rental which did not cover operating costs plus the agreed wage scale. In holding that there was federal pre-emption the court stated at (pp. 295-297) :

“The purposes of the [Wagner and Taft-Hartley] Acts are served by bringing the parties together and establishing conditions under which they are to work out their agreement themselves. To allow the application of the Ohio antitrust law here would wholly defeat the full realization of the congressional purpose. The application would frustrate the parties’ solution of a problem which Congress has required them to negotiate in good faith toward solving, and in the solution of which it imposed no limitations relevant here. . . .
“We have not here a case of a collective bargaining agreement in conflict with a local health or safety regulation; the conflict here is between the federally sanctioned agreement and state policy which seeks specifically to adjust relationships in the world of commerce. If there is to be this sort of limitation on the arrangements that unions and employers may make with regard to these subjects, pursuant to the collective bargaining provisions of the Wagner and Taft-Hartley Acts, it is for Congress, not the States, to provide it.”

In Colorado Comm. v. Continental, supra, the Colorado Anti-Discrimination Commission by order attempted to enforce the Colorado Anti-Discrimination Act against Continental Air Lines after finding that a Negro applicant for the position of pilot had been rejected because of race. On review a state trial court set aside the commission’s determination on the grounds: (1) That the state act placed an undue burden upon interstate commerce; and (2) the field of law concerning racial discrimination in the interstate operation of carriers is pre-empted by the federal Railway Labor Act, the Civil Aeronautics Act of 1938, and Federal Executive Orders. The Colorado supreme court discussed only the question of whether the state act as applied placed an undue burden upon commerce, concluded that it did, and affirmed the trial court. The United States supreme court reversed and in its opinion considered all the grounds upon which the judgment of the trial court rested. It assumed that the Civil Aeronautics Act of 1938, now the Federal Aviation Act of 1958, as well as the state act, protects job applicants from discrimination because of race. With respect to this aspect of the case the court declared at (p. 722):

“To hold that a state statute identical in purpose with a federal statute is. invalid under the Supremacy Clause, we must be able to conclude that the purpose of the federal statute would to some extent be frustrated by the state statute. We can reach no such conclusion here.”

While both the Oliver and Continental Cases deal with different phases of the federal pre-emption problem, both cases lay down the same test for resolving the issue. This test is whether enforcement of the state act would frustrate the objectives of the particular federal act which allegedly has pre-empted the field. We conclude the age-discrimination prohibitions of the Wisconsin Fair Employment Act, as hereinafter interpreted by this court, and, as applicable to the instant pension agreement between Walker and the Union, in no way frustrate the objectives of the Labor Management Relations Act.

The objective of the prohibition of the Wisconsin Fair Employment Act against termination of employment because of age between ages forty and sixty-five obviously is to prevent such employees being thrown out of employment at an age when other employers are unlikely to employ them. The state has a legitimate interest to exercise its police power in the promotion of the general welfare to protect employees of this upper age group against the possibility of being out of employment with resulting deprivations to their families. Furthermore, the act provides for two exceptions to the prohibition: (1) Where the employee is physically or otherwise unable to perform his duties; and (2) where the termination is pursuant to a retirement policy or system that is not a subterfuge to evade the prohibition. As hereinafter determined, payment of substantial retirement benefits to an employee of this age group whose employment is terminated pursuant to a bona fide pension plan falls within the latter exception.

Congress has not seen fit to legislate in this field of age discrimination in employment affecting interstate commerce so there can be no conflict between state and federal enforcement agencies. It is difficult to perceive how the objectives of the Labor Management Relations Act would be thwarted by enforcement of the prohibition contained in the state act. What legitimate purpose would be served by permitting employers and unions to negotiate collective-bargaining contracts that would permit the employer to terminate the employment of employees between ages forty and sixty-five solely because of age without paying substantial retirement benefits? We conclude that the limited nature of the age-discrimination prohibition of this state act is of “merely peripheral concern of the Labor Management Relations Act,” to borrow the aforequoted language of San Diego Unions v. Garmon, supra.

We now turn to the argument advanced by Walker that its acts, in terminating the employment of the 38 employee-intervenors between ages sixty and sixty-five pursuant to the pension agreement negotiated with the Union, is arguably an unfair labor practice under secs. 8 (a) (1) and (3), and 8 (b) (1) (A) and (2) of the act (29 USCA, sec. 158).

Walker grounds this contention upon Miranda Fuel Co., Inc. (1962), 140 NLRB. 181, and the subsequent National Labor Relations Board decisions which have relied thereon: Hughes Tool Co. (1964), 147 NLRB, No. 166, and Maremont Corp. (1964), 149 NLRB, No. 48. These decisions determine that sec. 7 of the act (29 USCA, sec. 157), protects employees from unfair, irrelevant, or invidious treatment by their exclusive bargaining agent. They further hold that when a union does this it has violated its duty of fair representation and this constitutes an unfair labor practice under some of the subdivisions of sec. 8 of the act. An employer who accedes to the union’s demand so as to inflict such unfair or invidious treatment upon one or more employees is also guilty of an unfair labor practice.

We deem the holding in these three board decisions relied upon by Walker are readily distinguishable from the facts of the instant case. The Union here did not engage in any unfair or invidious discrimination toward the Walker employees between sixty and sixty-five years of age when it agreed that Walker should have the option to terminate their employment in return for agreeing to pay substantial retirement benefits to these employees. We conclude that Walker’s contention that its acts in the instant case arguably constituted an unfair labor practice under the federal act is too tenuous to support such a conclusion on our part.

After careful consideration of all the arguments advanced by Walker we determine that there existed no federal preemption which prevented the commission from entertaining and determining the instant complaint.

Did Walker Violate Wisconsin Fair Employment Act?

The age-discrimination prohibition of the Wisconsin Fair Employment Act is subject to the exception contained in par. (c) of sec. 111.32 (5), Stats., which provides, “Nothing in this subsection shall be construed ... to affect any retirement policy or system of any employer where such policy or system is not a subterfuge to evade the purposes of this subsection, . . .”

Sixteen states in addition to Wisconsin and also the Commonwealth of Puerto Rico have statutes which prohibit age discrimination in employment. Three of these states, Nebraska, New York, and Washington have provisos worded identical or similar to par. (c) of sec. 111.32 (5). The statutes of seven states contain provisos which provide that such statutes do not apply to “bona fide” retirement or pension plans. These seven states are California, Connecticut, Delaware, Hawaii, Massachusetts, New Jersey, and Pennsylvania. We are satisfied that there is no essential difference between an age-discrimination statute proviso phrased in terms of retirement policies or systems that are not a subterfuge, such as contained in par. (c) of sec. 111.32 (5) and the corresponding provisions of age-discrimination statutes which speak in terms of “bona fide” retirement or pension plans.

The 38 employees affected by the commission’s order here under review were retired by Walker pursuant to an option in Walker’s pension agreement. This pension agreement had been arrived at by collective bargaining between the Union and Walker. There is no claim made that these negotiations were collusive or that the Union in agreeing to the pension plan breached its duty of fair representation. There can be no doubt that these 38 employees were retired by Walker pursuant to a “retirement policy or system” within the meaning of the statutory exception. Thus the crucial question is whether the commission’s finding, that Walker’s act in so doing “constituted a subterfuge to evade the purposes of Subsection 111.32 (5) of the statutes” can be sustained.

The evidence with respect to this issue is undisputed. Unless this evidence is subject to conflicting reasonable inferences a question of law is presented and the commission’s finding is not binding upon the reviewing court. Cmelak v. Industrial Comm., ante, p. 552, 135 N. W. (2d) 304; Horvath v. Industrial Comm. (1965), 26 Wis. (2d) 253, 131 N. W. (2d) 876; Van Roy v. Industrial Comm. (1958), 5 Wis. (2d) 416, 92 N. W. (2d) 818. We determine that the evidence in the instant case will support but one reasonable inference and that is that Walker’s retirement of these employees pursuant to the option provided for in the pension plan did not constitute a subterfuge to evade the statute.

The commission, in its Findings 18 and 19, stresses the facts that under the pension plan it was voluntary and not compulsory for Walker to retire these employees. We deem this to be immaterial if the option feature of the pension plan is not itself a subterfuge. The test is not whether the exercise of the option is a subterfuge but rather whether the option provision of the pension agreement is such that to permit its exercise would constitute a subterfuge.

The commission, in its Finding 14, finds that Walker did not take any steps to ascertain the physical health of each of these employees or his qualifications to perform his assigned job. This also is immaterial on the issue of subterfuge where the retirement of these employees was grounded on the option provision of a pension agreement. Par. (c) of sec. 111.32 (5), Stats., contains two exceptions to the age-discrimination prohibition of the subsection. In addition to the one relating to a “retirement policy or system” there is the other exception which excludes termination of the employment of an employee “physically or otherwise unable to perform his duties” from operation of the prohibition. Thus the exception relating to a retirement policy or system would be surplusage if its application were limited to terminations where health prevented full performance of job duties. It seems obvious that the legislature did not intend to restrict the retirement policy or system exception to a situation where the employee is physically unable to perform his duties.

What evidence would be necessary to enable the commission to find that the option of the instant pension agreement, which is confined to employees between the ages of sixty and sixty-five years, was a subterfuge to evade the age-discrimination prohibition of the act? Sec. 111.31, Stats., of the Wisconsin Fair Employment Act declares that it is the policy of this state to make unlawful conduct which “. . . tends to deprive the victims of the earnings which are necessary to maintain a just and decent standard of living, thereby committing grave injury to them.” We conclude that evidence sufficient to sustain a finding of subterfuge would have to establish either that the retirement benefits payable to the retired employee were unsubstantial, or, if substantial, that continued payment thereof was likely to be jeopardized.

The instant pension agreement provides retirement benefits payable until age sixty-five of $5.60 per month for each year of service to each employee retired under the option at the election of Walker. For example, the monthly retirement benefit payable to an employee so retired who had twenty years of service would be $112. Of the 38 affected employees so retired only one had as little as ten and a fraction years of service; two had thirteen and a fraction years of service each; and the other 35 all had nineteen or more years of service. An exhibit received in evidence disclosed that these 38 employees will receive an average of $302.52 of benefits per month until they reach sixty-five. Included in this computation in addition to the benefits payable under the pension plan are social-security payments to each employee and his wife payable commencing at age sixty-two; unemployment compensation; vacation pay payable at time of termination of employment, and hospital insurance premiums payable by Walker. The attorney general’s brief points out that under the foregoing computation the employee and his wife are required to sacrifice 20 percent of their social-security monthly benefits by electing to commence benefits at age sixty-two instead of sixty-five. However, this feature is offset by the Walker pension benefits payable for life beyond age sixty-five which are not required under the Wisconsin Fair Employment Act. Furthermore, the monthly retirement benefits payable until age sixty-five are the same as those provided in the pension agreement negotiated between this same International Union and General Motors Corporation.

We have no hesitancy in concluding that the monthly retirement benefits payable under the pension agreement to these 38 employees until they arrive at age sixty-five are not of such unsubstantial amount as would support a finding of subterfuge.

No claim has been advanced by the attorney general that the funding requirements of the pension agreement are inadequate to provide the specified retirement benefits. It, therefore, is unnecessary to consider this feature of the pension agreement as providing the basis for a finding of subterfuge. The pension plan has been approved by the United States internal revenue service as meeting the requirements of its rules and regulations. This indicates that the funding requirements of the plan have met its approval.

We thus reach the conclusion that the commission’s finding of subterfuge was an erroneous legal conclusion on its part, and that the judgment of the circuit court which reversed the commission’s order must be affirmed.

By the Court. — Judgment affirmed.

       The United States supreme court held in Teamsters Local v. Labor Board (1961), 365 U. S. 667, 674, 81 Sup. Ct. 835, 6 L. Ed. (2d) 11, that the Labor Management Relations Act only deals with discrimination that encourages or discourages union membership. Furthermore, the opinion of the United States court of appeals in National Labor Relations Board v. Miranda Fuel Co., Inc. (2d Cir. 1963), 326 Fed. (2d) 172, wherein it refused to enforce the board’s order in Miranda Fuel Co., Inc., supra, expresses serious doubt whether any sort of discrimination against an employee, which affects the terms and conditions of his employment, can constitute unfair labor practice under sec. 8 of the act, where wholly unrelated to any union considerations.

       See Fact Sheet No. 6-C issued August, 1964, by United States Department of Labor, Bureau of Labor Standards. This document is the source authority relied upon for the further analysis of the provisions of these statutes appearing in this paragraph of the opinion.


author: Hallows, J.

text:
    City of Madison, Appellant, v. Geier, Respondent.

      March 3

    June 4, 1965.

      For the appellant there were briefs by Edwin C. Conrad, city attorney, and David Pappas, assistant city attorney, and oral argument by Mr. Pappas.

    For the respondent there were briefs and oral argument by John Kasimatis of Madison.
    A brief amicus curiae was filed by Julian Bradbury and Jean G. Setterholm, both of Madison, for the League of Wisconsin Municipalities.
   Hallows, J.

By sec. 299.30 (5), Stats., the circuit court on an appeal in a municipal forfeiture action is granted the same power as this court under ch. 274 to review, affirm, reverse, or modify the appealed judgment. In such an appeal the circuit court makes no finding of fact; hence, on this appeal this court begins where the appeal to the circuit court began, i.e., the finding of the trial court. In ordinance-violation cases, sometimes called forfeiture actions, as in other civil cases, unless the findings of the trial court are against the great weight and clear preponderance of the evidence they will not be set aside on appeal even though contrary findings might have been made with evidence in their support. Milwaukee v. Thompson (1964), 24 Wis. (2d) 621, 130 N. W. (2d) 241; Will of Freitag (1960), 9 Wis. (2d) 315, 101 N. W. (2d) 108. But, to apply the great-weight-and-clear-preponderance test a court’s finding must at least be supported by evidence sufficient to meet the burden of proof for that type of case.

The circuit court was of the view the proof failed in quality and quantum necessary to convict the defendant of an ordinance violation. The Madison city ordinance sec. 12.86 is identical with the criminal sec. 346.94 (2), Stats., which provides, “Racing. No operator of a motor vehicle shall participate in any race or speed or endurance contest upon any highway.” The statute does not provide what burden of proof is applicable to violations of municipal ordinances modeled after criminal statutes.

The record does not show what standard was used by the trial court, but the circuit court tested the evidence by the “clear, satisfactory, and convincing evidence” rule of burden of proof. This burden, while greater than required in ordinary civil cases, is not as great as “beyond a reasonable doubt” used in criminal cases. There seems to be some confusion in the trial courts as to the proper burden of proof applicable to forfeiture actions when the acts constituting the violation also constitute a crime under state statutes. Sixty years ago we held in State v. Nergaard (1905), 124 Wis. 414, 102 N. W. 899, that in a civil action to recover a forfeiture for a violation of a fish and game law, which was not a misdemeanor, the state need not establish its case beyond a reasonable doubt but only by the preponderance of the evidence. But this case did not solve any problem relating to forfeiture cases which involved criminal acts.

At that time it was well established there existed three different burdens of proof, although the two standards applicable to civil cases were not always uniformly stated. Thus in Poertner v. Poertner (1886), 66 Wis. 644, 29 N. W. 386, the burden of proof applied in civil cases involving fraud, criminal offenses, and other culpable liability was stated as “clear and satisfactory preponderance of the evidence,” which in Klipstein v. Raschein (1903), 117 Wis. 248, 94 N. W. 63, was equated to the more-preferred form of stating the test in terms of “clear and satisfactory evidence.” In Klipstein, which involved fraud, the court also stated this formulation meant substantially the same as the instruction “clear preponderance of the evidence” used by the trial court. The three burdens of proof were again reviewed in Kuehn v. Kuehn (1960), 11 Wis. (2d) 15, 104 N. W. (2d) 138, in which we stated the preferential way of stating the middle standard of proof which was applicable to civil actions involving criminal acts and fraud was in terms of “clear, satisfactory, and convincing evidence.”

We considered ordinance forfeiture cases so far as the elements of the violation were concerned when the acts also amounted to a crime to be in that class of civil actions which involved fraud, undue influence, criminal acts, reformation, mutual mistakes, and others, which public policy requires to be proved by evidence which is clear, satisfactory, and convincing. We saw no difference in such a civil case being prosecuted by a private citizen and a municipality. We recently pointed out in Milwaukee v. Wuky (1965), 26 Wis. (2d) 555, 133 N. W. (2d) 356, such forfeiture cases at best are in fact a hybrid proceeding' — one has no right to a special verdict; pleas of guilty, of not guilty, or of nolo con-tendere are made instead of an answer; the action is commenced by warrant or summons; and one may be arrested and bail provisions apply.

Perhaps some confusion arose out of whether the middle standard applied to forfeiture actions involving crimes because of our language in Shawano County v. Wendt (1963), 20 Wis. (2d) 29, 121 N. W. (2d) 300. In that case we said the violation of a county ordinance which also amounted to a crime need not be proved by the criminal-law burden of proof but by “the clear preponderance of the evidence.” We thought it clear as was held in Bengston v. Estes (1952), 260 Wis. 595, 599, 51 N. W. (2d) 539, and in Odegard v. North Wisconsin Lumber Co. (1907), 130 Wis. 659, 110 N. W. 809, that “the clear preponderance of the evidence” was not synonymous with the rule “fair preponderance of the evidence” and required a greater burden of proof than was necessary in ordinary civil cases.

The preferred formulation of the rule now appears in Jury Instructions Nos. 205, 210, and 211, Wis J I-Civil, Part I, and specifically for forfeiture actions in Instruction No. 2050, Wis J I-Criminal, which we approve for use in all forfeiture actions involving criminal acts. Although the circuit court applied the proper burden-of-proof standard, we differ with the circuit court over the quality of the evidence produced and believe it met the standard.

The defendant argues that racing has five elements which must be proved to sustain a conviction under the ordinance, namely, intent, prior agreement, competition, high speed, and distance. We think the first three are but shades of the same conceptual notion that a race is an intentional competition in respect to some phase of locomotion. The dominant characteristic of a race is the awareness or intent of competition in respect to speed and distance to prove superiority in performance in some respect. Normally, to constitute a race there must be an acceptance or competitive response to the awareness of the challenge; such response may be the result of prearrangement or it may come into existence on the spur of the moment. There need be no prior formal or express agreement. In respect to automobiles the element of competition resulting from some understanding involving a challenge and a response may often reasonably be inferred from the speeds and the relative positions of the cars. Nelson v. Nason (1961), 343 Mass. 220, 177 N. E. (2d) 887; and State v. O’Connor (1962), 76 N. J. Super. 246, 184 Atl. (2d) 83.

Intermediate appellate courts interpreting statutes prohibiting racing on public highways have generally held that a race is a contest of speed or acceleration. State v. Dionne (1962), 24 Conn. Supp. 59, 186 Atl. (2d) 561, considered a race as a contest of speed, a competitive trial of speed, but not necessarily of illegal speed. It was also considered "not necessary that there be some prior agreement or understanding or some prearrangement before there can be a race; there can be a race by total strangers on the spur of the moment.” In State v. Hughes (1963), 2 Conn. Cir. 75, 194 Atl. (2d) 722, a race was considered “a contest of speed — involving the idea of competitive locomotion — in which competition is an essential element.” It was pointed out the idea of a race could be entirely subjective in the minds of each party and there may be a race in fact by reason of their competitive acts which could be determined by reasonable and logical inferences from observable circumstances. However, two cars may proceed abreast at various speeds even exceeding the legal limit without racing. In State v. Hart (1963), 2 Conn. Cir. 27, 193 Atl. (2d) 903, such was the situation but it was held there was no race because the drivers were merely calibrating the tachometer on one car whose speedometer was broken with the speedometer in the other car. In People v. Squilleri (1962), 37 Misc. (2d) 291, 231 N. Y. Supp. (2d) 443, the defendant was convicted of “drag racing” as a violation of the New York Vehicle and Traffic Law prohibiting “races or contests for speed.” The court held the statute encompassed drag racing, which it defined as an acceleration contest between automobiles.

In his contention that to constitute a race there must be high speed and distance the defendant relies on In re Harvill (1959), 168 Cal. App. (2d) 490, 335 Pac. (2d) 1016, where cars traveled at 50-55 miles per hour for over one-half mile; Anen Motor Vehicle Operator License Case (1961), 194 Pa. Super. 379, 169 Atl. (2d) 600, speed in excess of 65 miles per hour for over a mile; Miller Motor Vehicle Operator License Case (1962), 197 Pa. Super. 315, 179 Atl. (2d) 251, speed of 40-45 miles per hour for one-fifth of a mile; State v. Hughes (1963), 2 Conn. Cir. 75, 194 Atl. (2d) 722, over 75 miles per hour for over six-tenths of a mile; and Nelson v. Nason, supra, speed over 70 miles an hour for over a mile. While racing convictions were upheld in those cases it does not follow that lesser speeds or shorter distances would have resulted in acquittals.

Speed and distance are relative and depend on the nature of the race. A drag race is of short distance to contest superiority in acceleration which may or may not exceed the speed limit. Some races may test the highest speed over a given distance, others only the result. There was neither great speed nor acceleration in the modern sense in the famous race between the tortoise and the hare in Aesop’s fable — but who denies there was a race? We hold that speed to constitute an element of a race under the ordinance does not have to be excessive or illegal and that the distance need only be of such length that it may be reasonably inferred therefrom in connection with other facts that a race was in progress within that distance.

The evidence which the trial court thought was sufficient and the circuit court thought was not is somewhat in dispute. The arresting officer testified that on the evening of May 13, 1964, at approximately 10:15 p. m. he was parked in an unmarked squad car on the south side of East Main street in front of a drugstore. East Main street is four lanes and two parking lanes wide and forms one of the sides of the capital square in the city of Madison. He was preparing a report and heard sounds of vehicles behind him, of roaring engines and the squealing of tires. He turned around and saw two vehicles approximately at Monona avenue about 175 feet from where he was parked. He saw these vehicles proceed toward him on Main street from the stoplight at the intersection accelerating very rapidly. He stated in his opinion the cars were operating at their maximum and attained a speed of 35 to 40 miles per hour. The posted speed limit on East Main street is 25 miles per hour. The two cars were in the front line of traffic at the stoplight, side by side. They left the other cars behind them and when they came abreast the squad car they immediately slowed down. Both cars turned the next corner of the square. One, a 1964 Falcon came to a stop and parked along the street; the other, a 1957 Ford driven by the defendant, proceeded half a block and turned off the square and proceeded slowly in the general direction of the defendant’s home. The defendant was stopped a few blocks from the square by the officer. The officer identified the defendant’s car and the other car as those whose motors were revving and tires were squealing.

According to the testimony of the defendant, when he was stopped by the officer he asked the officer, “Was I speeding or did you hear any tires squealing,” and the officer answered, “No.” Defendant also testified he was returning from a fishing trip, the car was equipped with standard transmission, he did not know the driver of the other car, he - had no conversation with him at the stop sign and did not try to keep even with the other car but just pulled away from the stop, traveling from 15 to 25 miles per hour. He told the officer he did not meet the other driver earlier in the day, “I stated to the officer that I might have seen him at Union Grove. It’s a drag strip at Union Grove.” He was not asked nor did he testify whether he had revved up his engine or squealed his tires.

James Hollis, a passenger in defendant’s car, corroborated defendant’s testimony and in addition stated he did not hear more than the usual revving of engines, did not recall any squealing of tires, and stated he recognized the officer in an unmarked car when they were at the Monona stoplight and it would have been foolish to even think about racing.

The trial court believed the traffic officer and disbelieved the defendant and his witness. Credibility of a witness, of course, is for the trial court. The circuit court in analyzing the officer’s testimony stated the traffic officer could have been correct or erroneous in concluding the defendant and the other car were racing. The court considered there was no proof of intention to engage in a contest and the noise produced by revving of motors and squealing of tires could have come from any one of several automobiles waiting for the stoplight to change.

The inferences to be drawn from the observable facts is for the trial court, and unless they are inherently impossible or unreasonable they should be accepted on appeal. The arresting officer’s opinion that it was the defendant’s and the other car whose motors were being revved and whose tires made the squealing noise is in the nature of an identification based upon an inference from circumstantial evidence having probative value. State v. John (1960), 11 Wis. (2d) 130, 104 N. W. (2d) 379. The officer’s opinion of speed was evidence of competition. Swietlik, Opinion Evidence in Wisconsin — Non-Expert Witness, Vol. 3, No. 4, Wisconsin Continuing Legal Education (Oct. 1963), pp. 61, 72. The possibility or even a probability the officer was wrong in concluding the defendant and the other car caused the incriminating noise does not necessarily prevent the proof from reaching the required standard. However, if the officer’s testimony were all the evidence, we would be inclined to agree with the circuit court. However, the unusual inquiry of the defendant concerning the squealing of tires might well be considered an implied admission and this taken with the officer’s testimony is sufficient to sustain the burden of proof.

The city’s request to tax costs for pages in excess of 40 in its brief is denied because the brief might well have been confined to 40 pages, and its motion to strike the respondent’s brief is denied as moot.

By the Court. — Judgment reversed.

Fairchild, Gordon, and Heffernan, JJ. (concurring in part; dissenting in part). We agree that the judgment should be reversed. We respectfully dissent from that portion of the majority opinion which relates to burden of proof in regard to forfeitures.

Under the law in Wisconsin, the applicable standard of the burden of proof in forfeiture cases has been a “mere preponderance.” This was the express holding of State v. Nergaard (1905), 124 Wis. 414, 102 N. W. 899, and this ruling has never been disturbed. At page 425, the court stated:

“The court charged the jury that it was not necessary that the state establish its case beyond a reasonable doubt, but only by the preponderance of the evidence, and this instruction is claimed to be erroneous. We find' no error in the charge in this respect. The action is brought to recover a forfeiture for an act which is not a misdemeanor.”

In Oshkosh v. Lloyd (1949), 255 Wis. 601, 608, 39 N. W. (2d) 772, Mr. Justice Hughes, although dissenting from the conclusions of that case, stated the generally accepted rule to be:

“. . . that in submitting a verdict to the jury of guilty or not guilty the courts may instruct that the jury can find the defendant guilty from the simple preponderance of the evidence rather than from evidence which satisfies it of his guilt ‘beyond a reasonable doubt,’ as in criminal procedure.”

It should be noted that the case with which Mr. Justice Hughes was concerned involved a charge of drunken driving under a municipal ordinance — a violation that is also a crime under state law.

The mere-preponderance rule in forfeiture cases has never been challenged since 1905 in any presentation to this court. Even in the case at bar, counsel did not volunteer argument on the question of burden of proof either in the trial court or here on appeal; nevertheless, without any compelling reason, the majority has now chosen to alter this basic rule of substantive law which has been operative in the trial courts of Wisconsin for at least the past sixty years.

Two of the writers of this opinion, one as a trial judge and the other as a city attorney and teacher of municipal law, can attest from their personal experience that the mere-preponderance test has been regularly accepted and applied without hesitation in forfeiture cases in Wisconsin.

There are many civil cases in which proof of a crime is the gravamen of the action. For example, in Poertner v. Poertner (1886), 66 Wis. 644, 29 N. W. 386, there was a divorce action based on the crime of adultery, and in Trzebietowski v. Jereski (1914), 159 Wis. 190, 149 N. W. 743, there was an action for damages based on the crime of seduction. In each case the underlying act in the civil action was required to be proved by clear and convincing evidence, the same as is required for the proof of fraud. The criminal acts involved in those cases, however, were instances of malum in se, i.e., acts “involving illegality from the very nature of the transaction, upon principles of natural, moral, and public law.” Black’s Law Dictionary (4th ed.), page 1112. Forfeitures on the other hand are usually, though not always, prescribed for acts which, like traffic offenses, are malum prohibitum, i.e., “an act which is not inherently immoral, but becomes so because its commission is expressly forbidden by positive law.” Black’s Law Dictionary (4th ed.), page 1112. Apparently where a person is claimed to have been guilty of fraud, or a criminal act which is inherently evil, or involves a wilful breach of good order, it is deemed good policy even in a civil action to require a greater degree of certitude before a judicial finding of such guilt than is required for determining other facts in civil cases. But the reasons of policy which underlie the requirement of a higher degree of certitude in such instances do not, in our opinion, apply generally to forfeiture cases.

Except for State v. Nergaard, supra, the only case involving a forfeiture which has been referred to in the majority opinion is Shawano County v. Wendt (1963), 20 Wis. (2d) 29, 121 N. W. (2d) 300. In that case, the question of the burden of proof was not raised; it was neither briefed nor argued. If the use of the words “clear preponderance” in the Shawano Case represented the adoption of a new standard, it was indeed a casual and oblique way of changing a well-established rule.

No other case relied upon by the majority involved a forfeiture. Kuehn v. Kuehn (1960), 11 Wis. (2d) 15, 104 N. W. (2d) 138, was a case involving fraud, and the cases relied upon were those like Poertner and Trzebietowski which were not forfeiture actions, but in which alleged criminal acts malum in se or otherwise involving a wilful breach of good order were of vital significance.

In our opinion, there is neither demand nor need for this change in the burden of proof as to ordinance violations. For over half a century the courts and the legislature have accepted the mere-preponderance rule. The judicial council has heretofore concluded that the burden of proof required by law in forfeiture cases was a preponderance of evidence as distinguished from either the criminal burden of “beyond a reasonable doubt” or the so-called middle burden which the majority now adopts. Minutes of Judicial Council, October 24, 1958, p. 7, 345.37. At a later meeting, a motion was put to the subcommittee that “the burden of proof be changed from the regular civil burden to that required in cases of fraud, i.e.} to clear and convincing evidence instead of a preponderance of evidence.” Minutes of Judicial Council, December 5, 1958. This motion was lost.

In response to an invitation by this court, the chairman of the committee on Wisconsin Jury Instructions — Criminal, has advised us in writing that it seemed to the committee that the statement in the Kuehn Case concerning civil actions involving criminal acts “required” the committee to adopt Jury Instruction No. 2050. Although it also appears that the committee felt that it was in the interest of justice to place such greater burden upon the prosecution in actions for forfeiture under traffic ordinances we surmise that the committee would not have felt free to adopt Jury Instruction No. 2050 but for the statement in Kuehn. As previously pointed out, the statement in the Kuehn Case is supported only by decisions of the type of Poertner and Trsebietowski and such statement ought, in our view, to be qualified so as not to apply to forfeiture actions. In our opinion the specimen instruction should be expressly disapproved.

Henceforward it appears that there will be one burden of proof in forfeiture cases which involve crimes and a different burden of proof in those which do not involve crimes. Since there is no ready reference source to determine whether an ordinance involves a crime, we anticipate that this distinction will create uncertainty among litigants. Presumably counsel will have to scrutinize the statute book to determine whether the ordinance violation charged is set forth in the precise same terms as an enactment by the legislature.

As a further example of the confusion which may result from the majority opinion, we need only ask what the majority proposes to do in the ordinary personal-injury action when the essential act of negligence is also a violation of a criminal traffic law. Thus, in a tort action for damages, when there is a claim that the speed was in excess of the statutory limit, must such speed be proved by evidence that is clear, satisfactory, and convincing? The thrust of the majority opinion would logically compel this result, since the issue arises in a “civil action involving criminal acts;” however, such a conclusion appears wholly unwarranted. The majority opinion unfortunately raises grave questions in regard to matters that most practitioners have regarded as settled aspects of the law.

       “2050 Burden of proof: Forfeiture actions
      “In determining the guilt or innocence of the defendant, you should scrutinize the evidence with the utmost care and caution. You should act with all the judgment, reason, prudence, and discrimination you possess. The burden of proving the defendant guilty of every element of the offense charged is upon the (City) (County) of -. Such burden is to satisfy or convince you to a reasonable certainty by evidence that is clear, satisfactory, and convincing that the defendant is guilty as charged (in the complaint) .
      “If after a fair consideration of all the evidence bearing on the question, you become so satisfied or convinced that the defendant is guilty, then you should find him guilty but if not so satisfied or convinced, you should find the defendant not guilty.”

       In some states a statutory prima facie violation of the racing law is made upon a showing the parties used a common starting point and thereafter compared their contested relative speeds. See Ill. Rev. Statutes (1963), Ch. 951/2, sec. 145.1; Rev. Code of Ohio, sec. 4511.251; Washington Rev. Code, 46.48.050.