author: Gordon, J. Fairchild, J. Beilfuss, J.

text:
    Schilling, Appellant, v. Stockel and others, Respondents.

      January 5 —
    March 2, 1965.

      For the appellant there was a brief by Becker & Hughes of Dubuque, Iowa, and Walter Cole of Platteville, attorneys, and Frank M. Coyne of Madison of counsel, and oral argument by Mr. Coyne.

    For the respondents Bernard Stockel and American Family Mutual Insurance Company there was a brief and oral argument by Frank D. Hamilton of Dodgeville.
    For the respondent State Farm Mutual Automobile Insurance Company there was a brief by Kopp, McKichan & Geyer of Platteville, attorneys, and Henry A. Field, Jr., of Madison of counsel, and oral argument by Mr. Field and Mr. Harold K. Geyer.

       Motion of rehearing denied, with costs, on April 27, 1965.

   Gordon, J.

The Negligence Problem.

The jury found Mr. Schilling 50 percent negligent for driving with his left elbow protruding from the window next to the driver’s seat of his automobile. Upon appeal, it is contended that there could be no negligence on the part of Mr. Schilling because of the extraordinary way that the injury occurred.

If the plaintiff’s left arm had been struck by a passing vehicle, the jury would have decided the negligence question, and there probably would have been little difficulty in ordering judgment based on such determination. A few cases in other jurisdictions have taken the view that one whose arm is injured while extended from a motor vehicle is contributorily negligent as a matter óf law, but the majority of cases have recognized this to be a question for the jury. Anno. 40 A. L. R. (2d) 233, 235. There do not appeár to be any previous Wisconsin decisions on this point.

The problem which we must determine in this case is whether Mr. Schilling may be held liable; he contends he was not negligent, but we believe that the jury was entitled to find that he was negligent. Nonetheless, we conclude that he may not be held accountable for his negligence for reasons of public policy.

On a number of occasions, this court has considered the problem presented when there is a negligent act accompanied by an extraordinary injury. There was a period in our judicial history when we accepted the view of the New York court of appeals in Palsgraf v. Long Island R. R. Co. (1928), 248 N. Y. 339, 162 N. E. 99. Under such view, if there was an injury resulting from careless action which was not reasonably apparent to the one so acting, there was deemed to be no breach of duty to the injured party; he was simply outside of the zone of risk. Waube v. Warrington (1935), 216 Wis. 603, 258 N. W. 497.

Commencing in 1952, with Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 55 N. W. (2d) 29, we ruled on a number of cases in which we rejected “the no-duty formula of Palsgraf and Waube ” to use the phraseology of Longberg v. H. L. Green Co. (1962), 15 Wis. (2d) 505, 516, 113 N. W. (2d) 129, 114 N. W. (2d) 435. See Colla v. Mandella (1957), 1 Wis. (2d) 594, 598, 85 N. W. (2d) 345, and Klassa v. Milwaukee Gas Light Co. (1956), 273 Wis. 176, 77 N. W. (2d) 397. Duty is still an important factor in determining whether an act is negligent. E.g., Szep v. Robinson (1963), 20 Wis. (2d) 284, 121 N. W. (2d) 753. However, once an act has been found to be negligent, we no longer look to see if there was a duty to the one who was in fact injured.

In the Klassa Case, at page 182, we quoted approvingly the analysis of the Minnesota court in Christianson v. Chicago, St P., M. & O. R. Co. (1896), 67 Minn. 94, 97, 69 N. W. 640:

“Otherwise expressed, the law is that if the act is one which the party ought, in the exercise of ordinary care, to have anticipated was liable to result in injury to others, then he is liable for any injury proximately resulting from it, although he could not have anticipated the particular injury which did happen. Consequences which follow in unbroken sequence, without an intervening efficient cause, from the original negligent act, are natural and proximate; and for such consequences the original wrongdoer is responsible, even though he could not have foreseen the particular results which did follow.”

When the court determines that liability should not attach even though a negligent act has been committed, our decisions since 1952 direct that nonliability be based on considerations of public policy rather than couched in terms of an absence of duty. In Colla v. Mandella, we said, at page 598:

“It is recognized by this and other courts that even where the chain of causation is complete and direct, recovery against the negligent tort-feasor may sometimes be denied on grounds of public policy because the injury is too remote from the negligence or too ‘wholly out of proportion to the culpability of the negligent tort-feasor,’ or in retrospect it appears too highly extraordinary that the negligence should have brought about the harm, or because allowance of recovery would place too unreasonable a burden upon users of the highway, or be too likely to open the way to fraudulent claims, or would ‘enter a field that has no sensible or just stopping point.’ [Citations omitted.] In the Pfeifer Case, supra, we stated the essential rationale of the cases of that sort in capsule form as follows (p. 238):
“ . in cases so extreme that it would shock the conscience of society to impose liability, the courts may step in and hold as a matter of law that there is no liability.’ ”

The current position of the Wisconsin court regarding duty versus public policy was discussed by Professor Richard V. Campbell in Wisconsin Law Governing Automobile Accidents — Part I, 1962 Wisconsin Law Review, 240.

The concept of relieving a negligent actor from liability on grounds of public policy was also recognized by this court in several cases involving the question of intervening cause. Heritage Mut. Ins. Co. v. Sheboygan County (1962), 18 Wis. (2d) 166, 171, 118 N. W. (2d) 118; Strahlendorf v. Walgreen Co. (1962), 16 Wis. (2d) 421, 429, 114 N. W. (2d) 823; Ryan v. Cameron (1955), 270 Wis. 325, 331, 71 N. W. (2d) 408.

In examining Mr. Schilling’s conduct, it may be tempting to conclude that because he could not reasonably have foreseen the hazard of a falling box, he should not be called negligent. Nevertheless, one who permits his elbow to project from the window of an automobile may be deemed negligent under many circumstances; the fact that the instant injury occurred in an extraordinary fashion should not preclude the trier of fact from concluding that Mr. Schilling committed an act of negligence.

Even though the jury found Mr. Schilling’s act to have been negligent, this court is convinced that a desirable public policy requires that he should not be charged with any liability therefor. This is one of those unusual cases in which the judicial determination should be made in favor of Mr. Schilling holding him free of any effect of his negligence. It would be unjust to surcharge Mr. Schilling for his negligence in permitting, his elbow to extend from his car window when it was-struck by an object emanating from another vehicle which was passing well over on the other side of the highway. This injury could have occurred if he had been driving nonnegligently in an open convertible instead of negligently with his elbow protruding from the window of his sedan.

We cannot hold Mr. Schilling’s conduct to be nonnegligent as a matter of law or hold that there was no duty on his part to use reasonable care. Nevertheless, upon these facts, public policy precludes the attachment of liability for his conduct.

Upon remand, the circuit court should enter judgment in favor of the plaintiff for the full amount of his damages notwithstanding the jury’s assessment to him of 50 percent of the negligence.

The Insurance Coverage Problem.

The policy of liability insurance issued to Mr, Stockel by State Farm Mutual, covering his own vehicle, contained the following provision:

“Insuring Agreement II — Non-Owned Automobiles
“Such insurance as is afforded by this policy under coverages A, B, Division 2 of C and M, D, D-50, F, G and H with respect to the automobile applies to the use of a non-owned automobile by the named insured or a relative, and any other person or organization legally responsible for the use by the named insured or relative of an automobile not owned or hired by such other person or organization.
"Insuring Agreement II does not apply:
“(1) to a non-owned automobile (a) . ,. . (b) . . . (c) while used in the business or occupation of such named insured or relative except a private passenger automobile operated or occupied by such named insured, relative, or by his private chauffeur or domestic servant.”

State Farm Mutual contends that no coverage is afforded under the foregoing provisions for the operation of a non-owned .automobile if the vehicle is being used in the business of the insured and is not a private passenger automobile. However, Mr. Stockel’s operation of Mr. Johns’ vehicle was covered under the terms of the State Farm policy even though it was used in Mr. Stockel’s business if Mr. Johns’ vehicle was a private passenger automobile.

Considerable testimony was taken concerning the nature and purpose of the trip. It appears that Mr. Stockel operated a tavern as his business, that the articles he picked up were in the nature of business fixtures and not commodities for sale, and that the commodities he held for sale were delivered by others. It is clear that Mr. Stockel was in no manner engaged in the trucking or hauling business. No issue is raised on appeal as to whether the vehicle was being used in Mr. Stockel’s business. We will, therefore, assume without deciding that the vehicle was being “used in the business of the insured.”

We must decide whether there is any credible evidence, or reasonable inferences therefrom, to sustain the jury’s finding that the Studebaker pickup was not “a type of vehicle other than a ‘private passenger automobile’ as that phrase is defined and used in the insurance policy issued by State Farm Mutual Automobile Insurance Company to Bernard Stock-el.”

The State Farm Mutual policy contains these definitions:

“Private Passenger Automobile — means a private passenger, station wagon or jeep type automobile.”
“Utility Automobile — means an automobile with a load capacity of fifteen hundred pounds or less of the pick-up body, sedan delivery or panel truck type.”

The learned trial judge, in dealing with the problem in a memorandum opinion upon motion for summary judgment, stated as follows:

“We are not persuaded that it can be held as a matter of law that the Studebaker pickup truck being driven by defendant Stockel at the time of the accident constituted a ‘private passenger automobile’ as that term is defined in State Farm’s policy. We are convinced that the inferences which may reasonably be drawn from the meager description of the vehicle contained in the record herein are doubtful and uncertain and should be resolved by a jury.
“The definition of a ‘private passenger automobile’ set forth in the insurance contract is vague, ambiguous and uncertain. It states that a private passenger automobile is any one of three types of vehicles, viz:
“1. It is a station wagon, or
“2. It is a jeep type automobile, or
“3. It is a private passenger automobile.
“This definition is far from enlightening and certainly not free of ambiguity. The third alternative merely restates the phrase which is being thereby defined. The first two alternatives do not seem applicable to the instant problem, and hence we are left with a definition which states that the term ‘private passenger automobile’ means a private passenger automobile. We therefore apply the rule found in Meiser v. Aetna Casualty & Surety Co. (1959), 8 Wis. (2d) 233, 238, 98 N. W. (2d) 919.
“ ‘An insurer may, of course, cut off liability under its policy with a clear language, but it cannot do so with that dulled by ambiguity,’ and the further rule set forth in State Department of Public Welfare v. Central Standard Life Ins. Co. (1963), 19 Wis. (2d) 426, 433, 120 N. W. (2d) 687.
“ ‘If an insurance company in writing its policy fails so to write a provision as to indicate with reasonable certainty what it means by the provision it has no just cause for complaint that the provision is given a reasonable construction contrary to its contention although its contention may also have reason to support it. In such case we will not do any fine or precise balancing of reasons or splitting of the hairs for the purpose of upholding the company’s contention.’ ”

We agree with the trial judge that the language employed by State Farm Mutual does not clearly cut off its liability even though it may have intended to do so. The provisions of the policy when read as a whole are not clear or readily understood by a person of average intelligence. An ambiguity exists in the language of the policy. There was a jury issue as to whether the vehicle owned by Mr. Johns was a passenger-type automobile. See Poncino v. Sierra Nevada Life & Casualty Co. (Cal. 1930), 104 Cal. App. 671, 286 Pac. 729.

Because of the evidence as to the size, construction, appearance, actual use and customary use in the community, and comparable premium rates, we conclude that the jury could draw the reasonable and permissible inference that the Studebaker pickup was a passenger-type automobile. It follows that the plaintiff is entitled to judgment against all the defendants.

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

Fairchild, J.

(concurring in part). I agree that the jury could properly find plaintiff negligent with respect to driving with his elbow out the window. But I would favor the return of the case for a new comparison of negligence, holding that as a matter of law defendant’s negligence as disclosed by the record, substantially exceeded that of plaintiff. I respectfully disagree with the proposition that the chain of events leading to the injury was so unusual that there should be judicial intervention on policy grounds to free Mr. Schilling from reduction of his recovery on account of his negligence. See Longberg v. H. L. Green Co. (1962), 15 Wis. (2d) 505, 516, 113 N. W. (2d) 129, 114 N. W. (2d) 435.

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

Beilfuss, J.

{concurring). I agree that judgment should be reversed and remanded for judgment on the verdict for damages as found by the jury in favor of the plaintiff and against all defendants.

It is my conclusion that plaintiff was not negligent as a matter of law.

The author of the A.L.R. annotation referred to in the majority opinion states as follows:

“The main question raised by the cases contained in the present annotation is whether the extension of a hand, arm, or other portion of the body from a motor vehicle constitutes contributory negligence. The majority of cases have taken the view that this is a question for the jury, and the courts have generally sustained the verdict of the jury in favor of the plaintiff, although a few have taken the view that under the circumstances of the particular case the plaintiff’s position constituted contributory negligence as a matter of law.
“Every case, of course, turns upon its individual fact situation, . .

I emphatically agree with this general statement. In most instances it is a jury question as to whether the extension or protrusion of part of the body from a moving vehicle is negligence. I likewise agree there may be situations where risk of injury is so imminent or apparent that the conduct should be held to be negligence as a matter of law. The question before us now, however, is— Do the facts of this case compel a ruling that the plaintiff’s conduct was not negligent as a matter of law ?

In view of the fact that the jury found the plaintiff negligent and the trial court approved the finding, we must start our consideration of the problem with the limitation reiterated in Cheetham v. Piggly Wiggly Madison Co. (1964), 24 Wis. (2d) 286, 290, 128 N. W. (2d) 400:

“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. [Cases cited.] ”

The trial court instructed the jury as follows:

“Now what do we mean by the word ‘negligence’ as it is used in these instructions? Negligence, as that term is used in these instructions and in this verdict, has the same meaning as the phrase ‘failure to exercise ordinary care.’ A person is negligent when he fails to exercise ordinary care. I will state that last sentence again: A person is negligent when he fails to exercise ordinary care. Ordinary care is that degree of care which the great mass of mankind ordinarily exercises under the same or simliar circumstances. A person fails to exercise ordinary care when, without intending to do any wrong, he does an act or omits a precaution under circumstances in which a person of ordinary intelligence and prudence ought reasonably to foresee that such act or omission will subject the person or property of himself or another to an unreasonable risk of injury or damage.
“In addition to this general definition of negligence there are several rules of law as well as statutes enacted by the legislature for the safe operation of motor vehicles on the highways. A person who fails to comply with such rules or statutes is negligent as that term is used in the verdict and in the Court’s instructions. . . .
“Now Question 3 inquires as to whether Fred Schilling was negligent in caring for his own safety with respect to the position of his left arm. It is a rule of law that every person under all circumstances and whether on business or pleasure must exercise ordinary care for his own safety. This duty of self-preservation applied to Fred Schilling as he drove along Highway 11 on April 21, 1960. The exercise of such care includes such efficient use of one’s eyes, faculties and opportunities for observation as an ordinarily prudent person would use under like circumstances. It is for you to determine under all of the facts and circumstances disclosed by the evidence whether Fred Schilling was or was not negligent in caring for his own safety with respect to the position of his left arm at the time and place of this accident.”

This instruction is substantially taken from Wisconsin Jury Instructions. It is based upon the definition of negligence as announced in Osborne v. Montgomery (1931), 203 Wis. 223, 234 N. W. 372. This definition, with minor variations, has been adhered to by this court since its pronouncement and is used daily by the trial courts of this state in the multitude of negligence cases coming before them.

To sustain the finding that the plaintiff was negligent, the record must contain some credible evidence to support either that he (1) failed to exercise ordinary care,, or (2) that he was negligent per se.

The undisputed facts insofar as the plaintiff’s negligence is concerned are that he was proceeding along a standard 20-foot hard-surfaced highway with adjacent shoulders, on a clear, dry but windy April day, at a speed of 25 miles per hour, with left front window open and his left arm resting on the windowsill so as to protrude beyond the windowsill. Approaching from the opposite direction at a speed of 25 miles per hour was the small pickup-type vehicle driven by the defendant Stockel. Both vehicles were on their own right hand side of the highway with'ample clearance space between them. A§. the two vehicles were meeting, the large box in the rear of defendant Stockel’s vehicle flew off, struck the left front of the plaintiff’s vehicle and then struck his arm at or near the elbow. The plaintiff was unaware of what struck him and the defendant did not know the box struck the plaintiff or his vehicle until after the accident.

The only evidence as to the position of the plaintiff’s arm was his testimony to the effect that his arm was resting on the windowsill with both his hands on the steering wheel and his elbow within the outer limits of the area of the vehicle (because of the curve of the body of the car). The burden to prove plaintiff s negligence was upon defendants. The only-evidence offered and relied upon by them, in addition to plaintiff’s evidence, was the statement of the defendant Stockel that plaintiff told him after the accident that he had his arm out of the window and it was struck. There was no testimony on the part of the defendants as to how far the plaintiff’s arm was out of the window. Any belief that his arm was farther out than he testified is speculation or conjecture.

The plaintiff had the duty to exercise ordinary care for his own safety as to lookout, management and control, and observance of the statutory rules of the road as instructed by the trial court. The plaintiff was entitled to assume that the defendant would operate his vehicle exercising ordinary care, and that he would not violate the statutory rules of the road, including sec. 348.10 (2), Stats., pertaining to the safe loading of vehicles to be operated upon the highway.

The degree of care plaintiff was required to exercise to come up to the standard of ordinary care was the care that would be exercised by the great mass of mankind under the same or similar circumstances. He was not required to exercise extraordinary care or that of a very cautious person, but the same care as would have been exercised by an ordinarily prudent person under the same or similar circumstances.

There was nothing in the surrounding circumstances such as a vehicle in or deviating toward the plaintiff’s line of travel, a vehicle with a wide load or protruding object, nor a narrow, rough, or slippery highway, nor was his vision obstructed by weather, darkness, or otherwise. Any of these or other circumstances could well increase the hazard or probability of harm which would have required commensurate increased vigilance to meet the standard of ordinary care. He could not be required by his duty to exercise an efficient lookout to know the nature of the defendant Stockel’s load nor the manner in which the pickup was loaded. If he had been following the Stockel vehicle, or even been overtaken by him, he might have had notice of the defendant’s load. Instead he was meeting the defendant Stockel in an apparently uneventful manner, with no notice of any hazard emanating from the defendant.

Would a person of ordinary intelligence and prudence foresee an unreasonable risk of harm under the circumstances described herein ?

In recent cases dealing with negligence and foreseeability, we have stated:

“Ordinary care is such care as persons of ordinary prudence ordinarily exercise under like circumstances. The existing circumstances necessarily dictate what constitutes ordinary care in each instance. When the circumstances give rise to reasonable anticipation of injury, ordinary care includes the duty to act in accordance with that knowledge. As Mr. Justice Fowler pointed out in Hamus v. Weber (1929), 199 Wis. 320, 325, 226 N. W. 392, ordinary care and the element of reasonable anticipation are the same. Negligence exists when the harm could have been reasonably foreseen as probable by a person of ordinary prudence under like circumstances.” Mondl v. F. W. Woolworth Co. (1961), 12 Wis. (2d) 571, 573, 107 N. W. (2d) 472.
“Defendant in constructing the road was under the duty to use ordinary care which must be determined in the light of existing circumstances. Mondl v. F. W. Woolworth Co. (1961), 12 Wis. (2d) 571, 107 N. W. (2d) 472. The possibility of harm to the plaintiff’s tower was foreseen by the defendant but the foreseeability of possible harm is not enough to constitute negligence. Harm must be reasonably foreseen as probable by a person of ordinary prudence under like circumstances. Mondl v. F. W. Woolworth Co., supra; Osborne v. Montgomery (1931), 203 Wis. 223, 234 N. W. 372; Barnes v. Murray (1943), 243 Wis. 297, 10 N. W. (2d) 123. To constitute negligence, not only must the act involve a risk which the actor realizes or should realize but the risk must be unreasonable.” Wisconsin Power & Light Co. v. Columbia County (1962), 18 Wis. (2d) 39, 42, 117 N. W. (2d) 597.
“It is well established that harm must be reasonably foreseen as probable by a person of ordinary prudence under the circumstances, if conduct resulting in such harm is to constitute negligence.” Alsteen v. Gehl (1963), 21 Wis. (2d) 349, 362, 124 N. W. (2d) 312.

The foreseeability required by the rule of the cases set forth above is that there must be a reasonable probability of harm, the mere possibility of harm is not enough. There must be a foreseeable unreasonable risk of harm.

Although I conclude that the conduct must be such that a person of ordinary intelligence and prudence can reasonably see probability of harm, he need not foresee the specific harm that is accomplished. It is only necessary that he foresee the reasonable probability of some harm in view of the existing circumstances. Without resort to speculation or conjecture, the evidence does not reveal any harm which could reasonably be anticipated or appear reasonably probable.

Foreseeability is foresight, not hindsight. Plaintiff’s conduct must be judged at the time of or just before the accident and not what afterthought or hindsight would reveal to be a safer course of action in view of the results. As facetiously stated, “Almost anyone can exercise 20/20 hindsight.”

Foreseeability required to constitute negligence is not to be confused with foreseeability insofar as it applies to causation in those instances wherein the court rules as a matter of judicial policy that liability is not to attach. Excepting judicial-policy cases, if negligence is established foreseeability is not an element in cause of the injury.

We are dealing here with negligence and not causation. Foreseeability is a necessary element to establish negligence. In this instance where the surrounding circumstances were such as to indicate to the plaintiff nothing but an uneventful meeting of two vehicles, it cannot be said that a person of ordinary intelligence or prudence could or should have foreseen a reasonable probability of any harm to himself.

The only other basis upon which the plaintiff could be found to be negligent is if his conduct was negligence per se.

In Osborne v. Montgomery, supra, page 240, it is stated:

“We come now to a consideration of that class of cases where foreseeability is not an element of negligence, — a more accurate statement would be to that class of cases where the defendant is foreclosed or concluded upon the question of foreseeability. In all those cases where it is said that, the performance of the wrongful act being admitted, the defendant is guilty of negligence as a matter of law or that the act is negligent per se, the case is one which admits of no question as to reasonable anticipation or foreseeability. These cases are those in the main where the act amounts to a violation of a standard of care fixed by statute (ordinance) or previous decision.”

We have no statutory rule of the road that prohibits a person from resting his arm on the adjacent windowsill while operating a vehicle upon a highway, although the practice is not uncommon and has existed for many years. Nor has this practice been declared by court rule to be so inherently dangerous as to be declared to be negligence under all circumstances. If this conduct was inherently dangerous it is highly probable that among the multitude of reported cases of this court dealing with automobile accidents the problem would have presented itself heretofore.

The record has been reviewed in detail with care. I conclude the plaintiff was not negligent per se. I also conclude that there is not sufficient evidence in the record, nor reasonable inferences therefrom, which sustain the jury finding of negligence on the part of the plaintiff.

I would therefore reverse upon the ground that under the facts of this case the plaintiff was not negligent as a matter of law.

       40 A. L. R. (2d) 233, 235.

       Civil, Part I, 1005.

        DeKeyser v. Milwaukee Automobile Ins. Co. (1941), 236 Wis, 419, 295 N. W. 755; Grover v. Sherman (1934), 214 Wis. 152, 252 N. W. 680; Wis J I-Civil, Part I, 1030, and cases cited.

        Hamus v. Weber (1929), 199 Wis. 320, 325, 226 N. W. 392.

        Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 55 N. W. (2d) 29, and Klassa v. Milwaukee Gas Light Co. (1956), 273 Wis. 176, 77 N. W. (2d) 397, define causation and eliminate foreseeability as an element of causation.


source: Caselaw Access Project

author: Wilkie, J.

license: Public Domain

text:
    City of West Allis, Respondent, v. Megna, Appellant.

      February 1 —
    March 2, 1965.

      For the appellant there was a brief by Posner & Rubin of Milwaukee, and oral argument by Alexander N. Rubin.

    For the respondent there was a brief and oral argument by William T. Schmid, city attorney.
   Wilkie, J.

The sole issue presented on this appeal is whether appellant, after relying on a false identification card, can be convicted under sec. 9.02 (20) (c) of the West Allis Municipal Code for permitting a minor to enter and remain on the tavern premises.

Sec. 9.02 (20) (c) is modeled after sec. 176.32 (1) of the Wisconsin statutes, and provides, with exceptions not relevant here, that no keeper of a tavern, such as the one appellant operates, shall:

"... either directly or indirectly suffer or permit any person of either sex under the age of 21 years, ... to enter or be on such licensed premises for any purpose, . . .”

Appellant did not know Miss Dalzin and it was undisputed that she appeared to be at least twenty-one years old. The identification card was in the legally prescribed form and thus was the only certification of age which appellant could accept from a Wisconsin resident. Appellant contends that, in the absence of actual knowledge and when the potential patron could reasonably pass for twenty-one, he has exhausted his legal obligation to ascertain the patron’s age once he has complied with sec. 66.057 (1), Stats., by demanding to see and inspecting the state-prescribed form of identification card. Appellant submits that otherwise a tavernkeeper becomes a guarantor of all the information recited in the identification card, and that this is inequitable.

Appellant’s first obligation was to demand proof of age from Miss Dalzin when she came into the tavern on March 15, 1964. In failing to do this, appellant did not fulfil the requirements of sec. 66.057 (1), Stats. Had he inquired, he would have discovered that Miss Dalzin was not carrying an identification card. According to the express terms of sec. 66.057 (1), appellant would thus have had to regard her as being under age.

In any event, the fact that appellant neglected to ask for proof of age is not determinative of this appeal. Even if appellant had made proper demand from Miss Dalzin and then had relied on the bogus card, he could nonetheless have been prosecuted since both sec. 9.02 (20) (c) of the West Allis Code and sec. 176.32 (1), of the Wisconsin statutes, impose strict liability on tavernkeepers for permitting minors to be on the premises. It is true, as appellant contends, that this in effect makes a tavern operator an insurer of the facts contained in the certificate of age. But this is a price that the operator pays for the privilege of becoming licensed. As the able trial judge summed it up:

“I am satisfied that this man was misled, but I can find no justification for it. He just — when you are in that type of business.you have to asstime it.”

Proof of knowledge on the part of the tavernkeeper that the patron is actually under age is not required by the statute in order to obtain a conviction. That the tavernkeeper allowed the minor to remain on the premises in good-faith reliance on her false credentials is no defense. The purpose of the statute is simply “to keep minors as patrons or customers out of taverns.”

Appellant points to the fact that sec. 66.057 (3), Stats., permits nonresidents of the state, who would be unable to obtain the ordinary state certificate card, to sign a “statement of age” in order to gain access to a tavern, and that sec. 66.057 (5) then allows the tavern operator to use this statement as a defense in any criminal prosecution if it should turn out that the person signing the statement was actually under age. This difference from the statutory rules governing resident minors is a problem for the legislature and the courts cannot intervene.

By the Court. — Judgment affirmed.

       Sec. 66.057 (2), Stats.

       “66.057 Tavern-keeper shall require proof of age. (1) Any person in . . . [a tavern such as appellant’s] shall, upon demand of the person in charge of such premises or of any law enforcement officer show a certificate-card issued by the register of deeds of any county or the clerk of the city, village or town of his residence or election commission thereof, stating the date of his birth and other matters as provided in sub. (2), or be regarded ... [as being nnder age].”

        State v. Wrobel (1964), 24 Wis. (2d) 270, 274, 128 N. W. (2d) 629.


author: Beilfuss, J.

text:
    Schneider Fuel & Supply Company, Respondent, v. Thomas H. Bentley & Son, Inc., Appellant.

      February 1 —
    March 2, 1965.

      For the appellant there was a brief by Gif fin, Simar ski & Koch, attorneys, and James P. Brennan of counsel, all of Milwaukee, and oral argument by Mr. Brennan.

    For the respondent there was a brief by Lichtsinn, Dede, Anderson & Ryan, and oral argument by Peter C. Haensel, all of Milwaukee.
   Beilfuss, J.

Defendant maintains that the complaint does not sufficiently allege a cause of action for attractive nuisance; and, that its negligence, if any, is superseded by an independent, intervening force.

The plaintiff concedes that the complaint does not state a cause of action for attractive nuisance as that phrase is legally understood, but contends the allegation of attractive nuisance is merely descriptive of a negligent act of the defendant.

The allegation of attractive nuisance here may be descriptive, but it does not enlighten us as to the facts in this case. It is clear that there is no attractive nuisance. Any reference to attractive nuisance must be omitted from our consideration of the sufficiency of the complaint.

When challenged by a demurrer, the complaint is to be given a liberal construction with the view to permit all reasonable inferences' to be drawn in favor of finding that a cause of action is stated. When so viewed, we are unable to find any cause of action within the four corners of the complaint. Estate of Mayer, post, p. 671, 133 N. W. (2d) 322; Gregory III v. Madison Mobile Homes Park (1964), 24 Wis. (2d) 275, 128 N. W. (2d) 462.

With the allegation of attractive nuisance removed, we find that the complaint alleges merely that the construction site was not barricaded or guarded so as to prevent unauthorized persons from coming onto such area; that the failure to guard was negligence, which resulted in objects being thrown from the construction area down onto respondent’s property; that plaintiff was damaged as a result of such negligence.

The complaint is defective in that facts alleging a breach of duty have not been pleaded. The allegation of failure to guard the premises has not been related to a showing of facts and circumstances which would demonstrate that there was a reasonable probability or anticipation that failure to guard the premises would result in harm.

The ultimate inquiry is whether defendant should have foreseen the reasonable probability of persons coming upon the construction site and committing tortious acts. This is a question of fact. Should defendant have foreseen, as a person possessing ordinary intelligence and acting as a reasonably prudent individual under the circumstances then and there existing, that harm would result from the failure to barricade or guard the premises? Osborne v. Montgomery (1931), 203 Wis. 223, 234 N. W. 372. Did appellant have knowledge — or should it have had knowledge, that failure to guard the premises would result in damage to someone. Had defendant foreseen such circumstances, and failed to act, it would be negligent. However, there is no allegation of these necessary facts. The allegation that failure to guard the premises is negligence, without more, is a mere conclusion. Conclusions of law cannot be a substitute for essential facts.

We consider the matter of intervening force to the extent that such consideration will clarify the negligence question.

“ 'An intervening force is one which actively v operates in producing harm to another after the actor’s negligent act or omission has been committed.’ ” Merlino v. Mutual Service Casualty Ins. Co. (1964), 23 Wis. (2d) 571, 579, 127 N. W, (2d) 741.

It would seem that if the appellant’s conduct or omission set in motion the forces which caused the damage, or was a substantial factor in causing the damage, the defense of intervening force is unavailing. If the trier of fact determines that defendant’s conduct or omission was the dominant cause which put in motion the other forces, appellant is liable. Inquiry must be made as to whether the act was so unusual or extraordinary as not to be foreseeable. We express no' opinion as to what precise act should have been foreseen. That is part of the plaintiff’s duty in framing its complaint pursuant to existent facts.

In Merlino v. Mutual Service Casualty Ins. Co., supra, at page 579, the .following statement appears:

“ ‘If the effects of the actor’s negligent conduct actively and continuously operate to bring about harm to another, the fact that the active and substantially simultaneous operation of the effects of a third person’s innocent, tortious or criminal act is also a substantial factor in bringing about the harm does not protect the actor from liability.’ ”

In Restatement, 2 Torts, p. 1202, sec. 449, it is said:

“If the realizable likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent,, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.”

It is evident that the complaint is inadequate. Plaintiff should have the opportunity to plead over if it determines that it can frame a complaint alleging duty, breach of duty, causal relation, and damage.

By the Court. — Order reversed. Plaintiff-respondent shall have twenty days from the date our remittitur is received by the clerk of the county court in which to serve an amended complaint, failing therein judgment to be entered dismissing the complaint.

       For the elements of attractive nuisance see Angelier v. Red Star Yeast & Products Co. (1934), 215 Wis. 47, 254 N. W. 351. See also Schulte v. Willow River Power Co. (1940), 234 Wis. 188, 290 N. W. 629; Larson v. Equity Co-operative Elevator Co. (1946), 248 Wis. 132, 21 N. W. (2d) 253; Massino v. Smaglick (1958), 3 Wis. (2d) 607, 89 N. W. (2d) 223.

        Jezo v. Jezo (1963), 19 Wis. (2d) 78, 119 N. W. (2d) 471; D’Angelo v. Cornell Paperboard Products Co. (1963), 19 Wis. (2d) 390, 120 N. W. (2d) 70; Nelson v. La Crosse Trailer Corp. (1949), 254 Wis. 414, 37 N. W. (2d) 63.

        Alsteen v. Gehl (1963)., 21 Wis. (2d) 349, 124 N. W. (2d) 312; Lee v. Milwaukee Gas Light Co. (1963), 20 Wis. (2d) 333, 122 N. W. (2d) 374.

        Wasikowski v. Chicago & N. W. R. Co. (1951), 259 Wis. 522, 49 N. W. (2d) 481. Where an inference of negligence does not necessarily follow, the question of negligence should normally be submitted to the jury. Neanow v. Uttech (1879), 46 Wis. 581, 1 N. W. 221.

         Weber v. Interstate Light & Power Co. (1955), 268 Wis. 479, 68 N. W. (2d) 39; Wickert v. Wisconsin Central R. Co. (1910), 142 Wis. 375, 125 N. W. 943.

        Merlino v. Mutual Service Casualty Ins. Co., supra; Strahlendorf v. Walgreen Co. (1962), 16 Wis. (2d) 421, 114 N. W. (2d) 823.

         Wenzel v. Werch (1949), 256 Wis. 47, 39 N. W. (2d) 721; Kiviniemi v. American Mut. Life Ins. Co. (1930), 201 Wis. 619, 231 N. W. 252.

        Merlino v. Mutual Service Casualty Ins. Co., supra; Kramer v. Chicago, M., St. P. & P. R. Co. (1937), 226 Wis. 118, 276 N. W. 113; Sandeen v. Willow River Power Co. (1934), 214 Wis. 166, 252 N. W. 706.


author: Heffernan, J.

text:
    City of Milwaukee, Respondent, v. Wuky, Appellant. Same, Respondent, v. Werner, Appellant.

      February 2 —
    March 2, 1965.

      For the appellants there was a brief and oral argument by Michael D. Preston of Milwaukee.
    For the respondent there was a brief by John J. Fleming, city attorney, and Patrick J. Madden, assistant city attorney, and oral argument by Mr. Madden.

   Heffernan, J.

After a jury finding of guilty, judgments were entered against each of the defendants. By such judgments, they were each fined $50 and costs, and, in the event of a failure to pay, the judgments further provided'for imprisonment not to exceed thirty days. The costs were to be assessed equally against each of the two defendants, and such sum included $150 toward jury fees as to each defendant. There are three separate questions for review presented by the appeal.

Amendment of Charge.

As authority for its right to have amended the complaint at the end of the trial to charge a violation of a different ordinance from that which was originally alleged, the trial court expressly relied upon Sauk County v. Schmitz (1961), 12 Wis. (2d) 382, 386, 387, 107 N. W. (2d) 456. In that case, the defendant in a forfeiture action was charged with violating a county ordinance relative to speed. Testimony was received during the trial which described both the defendant’s speed and his overtaking and passing another vehicle on the right. At the conclusion of the trial, the court decided that the speeding offense had not been proved but that an improper passing violation had been established.

Upon the appeal of the Sauk County Case, this court affirmed the judgment, saying, at page 386:

“The original charge, while it did not specify a violation of the ordinance requiring passing to the left, did compel inquiry into the defendant’s speed, and all the circumstances and results thereof which might lead to a determination that it was unreasonable or hazardous. At the trial, there was full examination of the circumstances, and the defendant appears to have given all the explanation he had. The county court said it could not conceive of any additional facts that could change the picture, and none occur to us.
“When the court reached the conclusion that the violation proved was different from the violation charged, .it could have foreclosed all question by offering defendant the opportunity to present additional evidence. The defendant did not request such opportunity, however, and we do not consider that the court abused its discretion.”

Similarly, in the case at bar, the evidence offered by the city of Milwaukee to prove a violation of ordinance sec. 107-5 incorporated a full inquiry into the defendants’ conduct under ordinance sec. 90-21. The former ordinance fines a person who induces another to believe that he will receive money or other consideration in contests of skill; the latter ordinance fines a person who is the keeper of any place where liquor or malt beverages are sold if he permits any gambling or gaming on his premises.

In our opinion, the trial brought forth the facts and circumstances relevant to both ordinances. Neither in his brief nor upon oral argument did defendants’ counsel show how he might have defended against the second charge in any other manner than he did against the original one. No new element was introduced by the amendment, and the claim of surprise is not well founded.

Mr. Werner, in his testimony, explained the payment of the $3 by saying that he was frightened by the size of the four officers and that he was returning to them the amount of money that they had inserted in the machine. He denied that the machine gave a payoff. These contentions raised factual issues which, if believed by the jury, would have constituted grounds for acquittal under the amended charge.

In Girtz v. Oman (1963), 21 Wis. (2d) 504, 509, 510, 124 N. W. (2d) 586, we discussed the wide discretion possessed by the trial court to amend pleadings in a civil action under sec. 269.44, Stats. See also Dunham v. Howard Industries, Inc. (1948), 253 Wis. 347, 360, 34 N. W. (2d) 140. In our opinion, the trial court did not abuse its discretion under the facts of the instant case in amending the pleadings at the end of the trial in this forfeiture action. Sauk County v. Schmitz, supra; Neenah v. Krueger (1932), 206 Wis. 473, 240 N. W. 402.

The defendants have failed to demonstrate that they were harmed or prejudiced in any way by the amendment of the charge. However, it would have been appropriate for the trial court, upon amending the charge, to have offered both sides an opportunity to submit additional evidence, as was suggested in the Sauk County Case.

The city has also challenged the court’s amendment of the charge. The respondent’s position is that it was entitled to a directed verdict of guilty as to each defendant on the original charge.

The evidence establishes that the officers used the device in question because of reports they had received which claimed that a gambling device was in use at the Holiday Bowl. Under the terms of the ordinance with which the defendants were originally charged, the use of the device must be induced by the belief that the player will receive money or other consideration. The trial court may have concluded that the element of inducement was not established so as to permit a finding of guilty under the original charge.

There was nothing apparent to a player who was unfamiliar with the machine that consideration could be obtained by playing it; the officers commenced playing (or were “induced” to play) before they learned that a higher score could be attained by pushing a certain button on the machine. See Milwaukee v. Milwaukee Amusement, Inc. (1964), 22 Wis. (2d) 240, 125 N. W. (2d) 625.

Right to a Special Verdict.

A timely request for a special verdict was made by the defendant Werner pursuant to sec. 270.27, Stats. The request was made prior to the introduction of any evidence on behalf of such defendant. If sec. 270.27 applies, the court was obliged to have employed a special verdict in this case. State ex rel. Milwaukee v. Circuit Court (1958), 3 Wis. (2d) 439, 445, 88 N. W. (2d) 339. The question which we must decide is whether a forfeiture proceeding is to be treated as a civil action for the purposes of sec. 270.27.

A forfeiture action on behalf of a municipality is a hybrid proceeding. We have observed earlier in this opinion that it is considered a civil action under Sauk County v. Schmitz, supra, in determining the court’s authority to amend the charge under sec. 269.44, Stats. Other cases in which a forfeiture action has been deemed a civil one áre Milwaukee v. Antczak (1964), 24 Wis. (2d) 480, 129 N. W. (2d) 125, and Milwaukee v. Bub (1962), 18 Wis. (2d) 216, 118 N. W. (2d) 123. See also Milwaukee v. Johnson (1927), 192 Wis. 585, 213 N. W. 335.

Notwithstanding the fact that an action to collect a forfeiture has many aspects in which it is deemed a civil action, we believe that, so far as the right to a special verdict is concerned, the criminal practice prevails. We base this in large measure upon sec. 66.12, Stats., which provides for the procedure in forfeiture proceedings. In that section, the legislature has adopted many aspects of criminal procedure in forfeiture actions. For example, they are “to be commenced by warrant or summons;” the provisions of sec. 954.034 “pertaining to bail upon arrest shall apply to such actions.” Significantly, sec. 66.12 (1) (a) expressly provides :

“In all actions hereunder the defendant’s plea shall be guilty, not guilty or nolo contendere and shall be entered as not guilty on failure to plead, which plea of not guilty shall put all matters in such case at issue, any other provision of law notwithstanding.”

In sec. 66.12 (1) (b), Stats., there are provisions for the stipulation of guilt. In sec. 66.12 (1) (c), the statute makes a provision for judgment “in case of conviction.”

It is apparent from an examination of sec. 66.12 (1), Stats., that it is an oversimplification to treat forfeiture actions as purely civil in nature. They also have many characteristics of a criminal case, and, in our judgment, the right to a special verdict is not to be deemed applicable. The submission of a verdict which inquires as to the defendant’s being guilty or not guilty is an appropriate means of obtaining the jury’s decision upon a denial of guilt.

Taxation of Jury Costs.

It was error to assess the sum of $300 jury fees against the defendants. In Milwaukee v. Milwaukee Amusement, Inc., supra, at page 256, we determined that there was no provision “which would permit the taxation as costs in this action of the juror fees of a 12-man jury.” That portion of the judgment in the aforesaid case which taxed the defendant the sum of $450 for jury fees was ordered eliminated. It should be noted that the decision in that case was handed down on January 7, 1964, which date was subsequent to the judgments entered in the case at bar.

By the Court. — The judgments are modified by eliminating from the costs taxed against each defendant the sum of $150 for jury fees; as so modified, the judgments are affirmed. Neither party shall tax costs on this appeal.


author: Currie, C. J.

text:
    State ex rel. Burns, Respondent, v. Vernon, Appellant.

      February 2 —
    March 2, 1965.

      For the appellant there was a brief by Glassner, Clancy & Glassner of Milwaukee, and oral argument by Lawrence Clancy.

    For the respondent there was a brief by George Thompson, attorney general, William A. Plats, assistant attorney general, Robert P. Russell, corporation counsel of Milwaukee county, and Joseph J. Esser, assistant corporation counsel, and oral argument by Mr. Esser.

   Currie, C. J.

Defendant raises these contentions on this appeal:

(1) The evidence is insufficient to support the finding by the jury that defendant is the father of relator’s child.
(2) If defendant does not prevail with respect to the first contention, he is entitled to a new trial because of alleged prejudicial error which resulted from the assistant corporation counsel propounding a certain question to defendant on cross-examination.
(3) In any event, a new trial should be directed in the interest of justice.

Sufficiency of the Evidence.

Defendant takes the position that relator’s testimony, that she had stated in court in March, 1960, that she did not know who was the father of the child, destroyed the effect of her other positive testimony as to the acts of sexual intercourse had with defendant during the two-month period preceding October 3, 1958. There is no testimony that she had any act of sexual intercourse during any relevant period with anyone other than defendant. Furthermore, the witness Rose Ann Brown testified to a statement made by defendant in her presence in the spring of 1959, that relator and he were expecting a baby about the same time as another couple.

Relator also testified that she did not file a paternity action against defendant when she discovered she was pregnant because he had another year of high school, and “we” did not want defendant’s parents to know about it. She further stated that the pregnancy was as much her fault as defendant’s and so she decided to take the blame for it. While this latter testimony was not offered as a direct explanation for her 1960 statement, that she did not know who was the father, the jury could have inferred such testimony to be an adequate explanation for the 1960 statement.

While sec. 52.355, Stats., places the burden in a paternity action upon the complainant “of proving the issues involved by clear and satisfactory preponderance of the evidence,” we determine that relator sustained that bürden in the instant case. While her statement in court in 1960, that she did not know who was the father of her child, conflicts with her other testimony, a logical explanation was given for this. The jury is to judge relator’s credibility. Her uncorroborated testimony is sufficient to sustain the verdict. State ex rel. Kapusta v. Weir (1960), 12 Wis. (2d) 96, 99, 106 N. W. (2d) 292.

Alleged Improper Cross-Examination.

Defendant took the stand as a witness in his own behalf. Part of his direct testimony is as follows: He had “broke up” with relator right before school was out in 1958; he was out of the state throughout the month of August, 1958, and did not return to Milwaukee until after Labor Day. No questions were asked by his counsel with respect to having had intercourse with the relator or ■■yvhether he was the father of her child. Defendant had certain conversations with relator after the birth of the child that are not particularly relevant to the attempted cross-examination which followed.

After defendant’s counsel had completed the direct examination of defendant, the assistant corporation counsel asked his first question on cross-examination: “Now, Mr. Vernon, state whether or not you had sexual intercourse — .” The trial judge interrupted the question to excuse the jury for the noon recess. After the noon recess a discussion was had between the judge and counsel out of the presence of the jury wherein defendant’s counsel objected to any question being asked defendant upon cross-examination inquiring whether he had had sexual intercourse- with relator. The judge did not rule directly upon the objection but stated that the safer way for the assistant corporation counsel to proceed would be to make defendant his own witness. Then the following transpired:

“Mr. Esser: Your Honor, I think the question — any question like this is completely proper for purposes of cross-examination. I asked — as stated — as the law is, the cross-examiner has a wide latitude and inasmuch as this goes to the essence of this particular case, it is certainly proper to cross-examine.
"The Court: I haven’t much doubt about this because if you don’t get it in one way, you can get it in another.
“Mr. Esser: The thing is this, your Honor, if you would not allow me to ask such a question, I would take exception to that because I think it is completely proper in the record to take exception.
“The Court: Well, it isn’t before us yet.
“Mr. Esser: That’s true.
“The Court: Call the jury.”

The assistant corporation counsel then proceeded to cross-examine defendant about when he saw relator between August 4th and October 3, 1958. Defendant answered that he had been in Kansas City, Missouri, in August and did not return to Milwaukee until the day after Labor Day. He also stated he had not seen relator during September or on October 3, 1958, except in school. Then this question was put:

“Now, state whether or not between August 4th and October 3, 1958, you had sexual intercourse with the complainant, Claudine Burns ?”

Defendant’s counsel then requested that the jury be excused, which request was granted. In the absence of the jury, defendant’s counsel moved for a mistrial. The motion for mistrial was denied and the court sustained defendant’s objection to the question, but stated that the assistant corporation counsel would be permitted to call defendant adversely to ask such question. This the assistant corporation counsel did not do.

The record makes it clear that the trial court had not definitely ruled on the objection to the partial question put to defendant at the commencement of cross-examination just prior to the noon recess. Therefore, there was nothing improper in the assistant corporation counsel later asking the question about sexual intercourse.

Furthermore, we determine that the ultimate ruling of the court that this question was improper cross-examination was erroneous. Defendant’s direct testimony that' he had been out of the state all during August and until after Labor Day tvas obviously given for the purpose of contradicting relator’s testimony that she had had acts of sexual intercourse with him during that period. Therefore, the direct question about sexual intercourse during such period was germane to the direct examination and constituted proper cross-examination.

In Greene v. Agnew (1915), 160 Wis. 224, 227, 151 N. W. 268, this court stated:

“The right of cross-examination of a party to an action is not to be restricted to narrow limits; a wide scope of inquiry, in subjects related to the matter at issue, is to be allowed for testing his credibility and the weight of his evidence.”

New Trial in the Interest of Justice.

This court declines to exercise its discretionary power under sec. 251.09, Stats., and direct a new trial in the interest of justice because our reading of the record does not convince us that justice probably miscarried.

By the Court. — Judgment affirmed.


author: Gordon, J.

text:
    Schoenfeldt, Individually and as Administrator, Appellant, v. Babcock and wife, Respondents.

      February 2 —
    March 2, 1965.

      For the appellant there was a brief by Charles W. Sturm, Charles E. Nicoud, and Charles Saggio, all of Milwaukee, and oral argument by Mr. Saggio.

      For the respondents there was a brief by Grootemaat, Cook & Frctnke, attorneys, and Robert E. Cook and Francis R. Croak of counsel, all of Milwaukee, and oral argument by Robert E. Cook.

   Gordon, J.

The trial court granted a nonsuit at the close of the plaintiff’s case, and we must determine whether such ruling was proper. Upon a motion for nonsuit, the evidence is to be viewed in a light most favorable to the plaintiff, and the plaintiff must also be given the benefit of the most-favorable inferences which can be deduced from the evidence. Bartz v. Braun (1961), 14 Wis. (2d) 425, 427, 111 N. W. (2d) 431; Lake Mills v. Veldhuizen (1953), 263 Wis. 49, 51, 56 N. W. (2d) 491.

There- are three principal matters which we will discuss: (1) Does the safe-place statute apply? (2) was there a duty on the part of Mrs. Babcock to issue a warning to Mrs. Schoenfeldt? and (3) was there negligence because the hall light was not shaded and was located so as to blind an invitee ?

The appellant has pointed out that a presumption of due care attended the deceased Mrs. Schoenfeldt. However, the deceased’s entitlement to a presumption of due care may not be translated so as to create a presumption of negligence on the part of the defendants. The nonsuit was not based on the extent of Mrs. Schoenfeldt’s negligence, but, rather, it was based on the absence of adequate proof as to the Babcocks’ negligence. Accordingly, no further discussion of this presumption is necessary in this opinion.

Another proposition advanced by the appellant relates to the liability of Edward Babcock. In view of our conclusion that his wife, Janis Babcock; was entitled to a nonsuit, it follows that Edward Babcock is also entitled to the benefit of such ruling. No useful purpose would be served by our exploring the question of his liability, since it is apparent that his liability rests on weaker grounds than that of his wife.

Applicability of Safe-Place Law.

The trial court determined that the safe-place law does not apply to the instant case, and we agree with this conclusion. The Babcock property was not a “place of employment” within sec. 101.01 (1), Stats. The statute describes such a place as one where “temporarily or permanently any industry, trade or business is carried on” and “where any person is, directly or indirectly, employed by another for direct or indirect gain or profit.”

The plaintiff offered no proof as to the frequency with which Mrs. Babcock carried on rummage sales at her home. Under the reasoning of Cross v. Leuenberger (1954), 267 Wis. 232, 65 N. W. (2d) 35, 66 N. W. (2d) 168, if this were a solitary sale or even an occasional event, it would not constitute a trade or business within the meaning of sec. 101.01 (1), Stats.

The Cross Case, at page 235, also establishes that the statutory definition of a place of employment requires not only the conduct of a trade or business but also the employment of one person by another. The record is devoid of a showing that any person was employed by another in connection with the rummage sale. The fact that Mrs. Babcock testified that her husband and some friends were “interested” in, the rummage sale falls far short of showing the existence of employment.

The Failure to Warn.

Mrs. Babcock led the way as Mrs. Schoenfeldt followed her into the house. Mrs. Babcock said, “Follow me,” but she did not caution her with reference to the physical arrangement of the platform and the. basement stairs. The appellant contends that, as an invitee, Mrs. Schoenfeldt was entitled to a warning of an unsafe condition or a hidden peril and that the failure of Mrs. Babcock to give such warning was a factor which the jury could have held to constitute negligence.

The appellant relies upon Lehman v. Amsterdam Coffee Co. (1911), 146 Wis. 213, 131 N. W. 362, in which case the entrance to the stairway was surrounded by store merchandise which was piled to heights of three to four and one-half feet. The court observed, at page 216, that the piling of merchandise practically concealed the stairway from view. The court went on to state, at page 218:

“The rule is familiar that where one invites another upon his premises he cannot without warning leave a snare or trap there into which the invited person falls while exercising ordinary care, and escape liability therefor. Barowski v. Schulz, 112 Wis. 415, 88 N. W. 236. We should be slow to say that an ordinary open stairway or hatchway in the storage part of a store could be called a trap or snare, even to an invitee. It is common knowledge that such places are very usual, and doubtless every person of full age should anticipate their existence; but the circumstances here are very much out of the ordinary. The stairway was surrounded on two sides with piles of merchandise as high or higher than the rail, and on side by shelving. The evidence seems to be ample to show that in approaching it from the front of the store there would be no sign or indication of a stairway, and that only as one came practically to the opening itself from the east was it possible to see it, or anything suggesting the existence of an opening in the floor. The jury might, we think, well say from the evidence that it was a trap or snare of whose existence under the circumstances the rules of ordinary care would require that an invited person be warned.”

In our opinion, the facts in the instant case are not comparable to the Lehman Case; there was no aspect of a trap in the instant case which could have created a duty on the part of Mrs. Babcock to give a warning.

The appellant also cites Campbell v. Sutliff (1927), 193 Wis. 370, 214 N. W. 374, which involved an unguarded open hole in the floor of a public garage through which coal could be stored in the basement. An invitee fell into the hole; the coal dealer, who had opened the hole and left it in that condition, was held responsible.

In our opinion, there is no reasonable analogy between such an unguarded hole in the floor and an ordinary stairway which leads to a basement from a back-hall platform. A person of average intelligence would not expect to encounter an unguarded open coal hole in a public building; on the other hand, stairs are a common and ordinary means of going from one floor to another, and they are present in millions of households. A householder is not under a legal duty to warn of the presence of regular stairs unless, by reason of special circumstances, such stairs are secreted, camouflaged or otherwise situated so as to constitute a trap; under no reasonable interpretation can this be said to apply to the physical arrangements at the Babcock household.

Was There an Unsafe Condition?

In Schlicht v. Thesing (1964), 25 Wis. (2d) 436, 441, 130 N. W. (2d) 763, this court stated:

“The owner of premises owes his invitee the alternative duty of either having his premises in a reasonably safe condition or of giving the invitee adequate and timley warning of latent and concealed perils which are known to the owner but not to the invitee.”

Can it be said that the premises were unsafe because of the smallness of the platform in the back hallway and the presence of an unshielded light? It is claimed that the deceased may have become blinded by the 75- or 100-watt bulb which hung just above eye level over the second stair of the stairway leading to the basement. The appellant points to the fact that this light bulb was not covered by a reflector or any other means of shading and that this light may have blinded Mrs. Schoenfeldt.

The absence of adequate lighting facilities has been held by this court to be the basis upon which negligence could be predicated. Schlicht v. Thesing, supra. It is more difficult to ascribe negligence to the presence of light. If this were not an ordinary light bulb but were, for example, a floodlight aimed directly at a person entering the door, negligence could reasonably be based upon a claim of a blinding effect. In Waterman v. Heinemann Brothers Co. (1938), 229 Wis. 209, 282 N. W. 29, the claim was made that the plaintiff was blinded by two 200-watt lights, and the court said; at page 212:

“Under the undisputed evidence as to the lighting of the stairhead we consider that the plaintiff’s claim of being blinded by light is in conflict with the physical facts and is utterly incredible.”

Under the facts of the instant case, there is no credible evidence which would permit a finding that Mrs. Schoenfeldt was blinded by the light in question. This is true even though Mr. Schoenfeldt claimed that he was blinded by the light shortly after the accident. It does not follow that his wife had been so affected; the jury would have to speculate whether she was affected by the light in the same manner that her husband claimed to have been. See also Boyd v. Logan Jones Dry Goods Co. (1937), 340 Mo. 1100, 104 S. W. (2d) 348.

The presence of this ordinary, unshaded 75- or 100-watt bulb mounted in the Babcocks’ back hallway slightly above eye level did not, under the circumstances, constitute an unsafe condition. This is particularly true because the evidence further establishes that there was an additional light at the bottom of the stairs. The trial court was correct in concluding that upon this record the stairs were in open and plain sight, and no credible evidence exists from which a reasonable inference of negligence could be drawn.

By the Court. — Judgment affirmed.


author: Fairchild, J.

text:
    Doughboy Industries, Inc., Appellant, v. Hipke, and another, Respondents.

      February 3 —
    March 2, 1965.

      For the appellant there was a brief by Doar & Knowles, and oral argument by James A. Drill, all of New Richmond.
    No brief or appearance for the respondents.
   Fairchild, J.

There was a timely appeal from the order filed July 8th, although not from the order of January 8th.

Respondents filed no brief and did not appear when the case was called for argument. We have decided to exercise our discretionary power to reverse the order filed July 8th under sec. 251.57, Stats.

By the Court. — The order filed July 8, 1964, is reversed; the cause is remanded with directions to vacate that part of the order dated and filed January-8, 1964, which declares satisfied the judgment in favor of Doughboy Industries, Inc.


text:
    Joint School District No. 1 of City of Watertown, etc., and others, Appellants, v. Joint County School Committee of Jefferson, Dodge, and Waukesha Counties, Respondent.

      February 3 —
    March 2, 1965.

      For the appellants there were briefs and oral argument by Francis Lamb of Madison.
    For the respondent there was a brief by Harold J. Wollen-sien of Waukesha, corporation counsel, Harold H. Eberhardt of Lake Mills, corporation counsel, and Fred R. Schwert-feger of Juneau, corporation counsel, attorneys, joined in by Hilbert W. Dahms of Oconomowoc, attorney for Joint School District No. 3 of the city of Oconomowoc, of counsel, and oral argument by Mr. Dahms, Mr. Wollensien, and Mr. Eberhardt.

   Wilkie, J.

Before a joint' school committee can enter a school-district reorganization order, a public hearing must be held and notice given thereof by personal service, posting, and publication. Sec. 40.025 (2) (a), Stats., requires that notice “be published once in at least one newspaper which has general circulation in the school districts affected by the proposed reorganization.” The committee loses jurisdiction which it has obtained over the reorganization matter by failing to substantially comply with the procedural steps required before the order can be issued. The sole issue presented on this appeal is whether publishing the notice in the Watertown Daily Times substantially complied with the general-circulation provision of the notice statute.

Appellants have the burden of overcoming the common-law presumption that public officials have complied with all statutory requirements in performing their official duties. There is also the statutory presumption that school-district reorganization orders “shall be presumptive evidence of the facts recited therein and of the validity of all proceedings preliminary thereto.”

Appellants argue that since the order failed to recite any facts and declare that notice was given, the presumption does not arise. The reorganization order in the present case read in part:

“Pursuant to the provisions of Sections 40.02 (5), 40.025 (2) and 40.03 of the Wisconsin Statutes, the Jefferson, Dodge and Waukesha County School Committees having held a formal public hearing on the 14th day of October, 1963, and having held a conference with the school boards of the districts involved on October 14 and November 12, 1963, all being in accordance with the provisions of Section 40.03, precedent to the issuance of this order, following described territory to-wit: . .

In Reinders v. Washington County School Comm., a contention similar to appellants’ was made against a reorganization order which recited:

“ '. . . all proceedings, notices, publications, and hearings have been duly made pursuant of and in accordance with the statutes and laws of the state of Wisconsin, . . .[

The presumption was applied and the order upheld. If the order in Reinders was entitled to the statutory presumption so must be the one in the instant case.

Appellants’ main argument is that since the Watertown Daily Times had only a circulation of 139 in Waukesha county, where 15,309 people within the Oconomowoc District reside, the paper cannot have general circulation in that district. The precise question of exactly what is meant by “general circulation” has not yet been resolved in this state. Decisions in other jurisdictions indicate, however, that whether or not general circulation exists hinges not upon the number, of people who receive the newspaper, but rather upon whether the news coverage is directed to the interests of a particular class of people. A paper containing general news which is available to the public at large is ordinarily considered to be one of general circulation. In Bartlett v. Joint County School Comm., this court held that once a paper was distributed within a school district, a statutory provision prescribing certain circulation qualifications (for purposes not important here), “would [not] have any relevancy in resolving the question of whether there was such general circulation in the affected school districts.” Thus, the circulation of a particular number of papers in the school district is unnecessary to make the newspaper in question a legal medium for the publication of the notice.

Inasmuch as appellants’ attack on the presumption was based solely on limited-circulation grounds and not on the grounds that the Watertown Daily Times did not appeal to the public at large, it must fail.

Even assuming, arguendo, that the amount of circulation is the only factor to be considered in ascertaining “general circulation,” if the presumption of regularity is to be at all meaningful, the party attempting to upset the order must still introduce evidence of a newspaper of greater circulation in the district. This is because it is conceivable for the circulation of the particular newspaper, however meager, to nonetheless exceed that of any other paper in the district. Even if appellants’ “total circulation” theory is sound, they nonetheless have not succeeded in rebutting the presumption.

Although on the merits we have concluded that appellants have not overcome the presumption of compliance with the notice-by-publication requirements of sec. 40.025 (2) (a), Stats., an additional reason for, denying appellants’ relief is that substantial compliance with these requirements is established so long as the record shows that no one was prejudiced by any lack of notice. In this respect the case is controlled by Joint School Dist. v. Joint County School Comm. In that case, residents of one school district sought to upset an order detaching territory from their district and attaching it to another district on the ground that the clerk of a town situated in the other district did not receive actual notice as required by sec. 40.025 (2). The clerk did not complain of any lack of notice, nor did it appear that the town was in any way prejudiced. Similarly, in the present case, residents of the Watertown District are attacking a reorganization order on the ground that the Watertown Daily Times was not a newspaper of general circulation in the Oconomowoc District. No person living in the Oconomowoc District has made any such complaint, and there is no indication that the district was prejudiced by the attachment of the Ixonia territory. After pointing out that the purpose of sec. 40.025 (2) is to provide a shield to protect the interests of those entitled to notification and not a sword available to anyone desirous of attacking a reorganization order, the court in Joint School Dist. v. Joint County School Comm. added:

“. . . we conclude that the town of Eau Galle was not prejudiced by the Joint Committee’s order of October 29, 1962. Because of this we determine that there was substantial compliance with the notice provisions of sec. 40.025 (2), Stats., and the order was not void because of the failure to have given notice to the clerk of the town of Eau Galle by mail or personal service.”

It is true that the alleged defect in Joint School District was a failure to give actual notice, while in the present case the purported error was not publishing notice in a newspaper of “general circulation.” But the crux of the objection in each case actually involves a notice problem. Even if there is a distinction on the facts of the cases, it is a distinction without a difference. The same principle applies in the instant case. There is a substantial compliance with the statutory notice provisions as long as no one is prejudiced by any lack of notice to him.

Appellants contend that even if the school-district reorganization order is affirmed it should not be effective until the school year beginning in the fall of 1965. This modification of the detachment order makes sense.

By the Court. — Order modified to provide that the order of the joint school committee shall go into effect July 1, 1965, and, as so modified, affirmed.

       Sec. 40.025 (2) (a), Stats. See also Bartlett v. Joint County School Comm. (1960), 11 Wis. (2d) 588, 106 N. W. (2d) 295.

       Sec. 40.025 (1) (d), Stats.

       Sec. 40.025 (1) (a), Stats. “Jurisdiction of a reorganization authority, other than the state superintendent, to make' orders of school district reorganization ... is acquired upon the filing of a petition . . . .”

       Sec. 40.025 (1) (d) 1, Stats.

        Reinders v. Washington County School Comm. (1962), 15 Wis. (2d) 517, 113 N. W. (2d) 141; Bartlett v. Joint County School Comm., supra, footnote 1; Marshall Drainage Dist. v. Festge (1956), 272 Wis. 114, 74 N. W. (2d) 616.

       Sec. 40.025 (4), Stats.; see also Reinders v. Washington County School Comm., supra, footnote 5, at page 522.

        Supra, footnote 5, at page 521.

       68 A. L. R. 542.

       Ibid.

        Bartlett v. Joint County School Comm., supra, footnote 1, at page 593.

       Ante, p. 437, 132 N. W. (2d) 549.

        Supra, footnote 11, at page 441.