author: Beilfuss, J. Wilkie, J.

text:
    Olson, Plaintiff, v. Siordia and another, Defendants: American Automobile Insurance Company, Impleaded Defendant. [Case No. 32.] Arias and others, Plaintiffs, v. American Insurance Company of Newark and others, Defendants. [Case No. 33.]

      September 29

    October 27, 1964.

      For the plaintiff there was a brief by Kluwin, Dunphy, Hankin & Hayes of Milwaukee, and oral argument by Bernard J. Hankin.

    For the defendants there were briefs by Kivett & Kasdorf, attorneys, and H. A. Dali of counsel, all of Milwaukee, and oral argument by Mr. Dali.

    For the plaintiffs there were briefs by Podell & Ugent of Milwaukee, and oral argument by Alvin R. Ugent.

    For the defendants Olson and the American Insurance Company of Newark, there was a brief by Kluwin, Dunphy, Hankin & Hayes of Milwaukee, and oral argument by Bernard J. Hankin.

    For the defendants Siordia and the Dairyland Mutual Insurance Company there were briefs by Kivett & Kasdorf, attorneys, and H. A. Doll of counsel, all of Milwaukee, and oral argument by Mr. Dali.

   Beilfuss, J.

These appeals present issues on whether there is credible evidence to support the jury’s finding that Olson was causally negligent; whether the trial court committed error in that it failed to clarify the jury’s apparent confusion as to the distinction between negligence and cause; and whether the damages awarded to Luisa Rodriguez and Frances Arias by the jury were excessive.

Credible Evidence to Support the Finding of Negligence.

Defendant Olson and his insurers concede that if the jury could have believed the testimony of Mr. Siordia it could have found Olson causally negligent. They contend that Siordia’s testimony is inherently incredible. They point to many contradictions in Siordia’s testimony and that of his supporting witnesses. Some of these inconsistencies can be explained by Siordia’s limited ability to speak or understand the English language.

The testimony and explanation of the collision by Siordia and Olson are grossly divergent. Olson contends that he was and had been traveling in the same lane as Siordia and that Siordia hit his vehicle from the rear. Siordia claimed that Olson sharply cut into the lane without warning and that the collision occurred. while Olson was attempting to cut in ahead of him.

Certain physical facts are relied on by Siordia to support the jury’s finding. The photographs reprinted in Siordia’s brief and supplemental appendix and Olson’s supplemental appendix indicate that the greatest amount of damage was done to the right rear fender of the Olson car and the left front fender of the Siordia car. Olson was driving a station wagon. The side panel window at the right rear of the station wagon was broken; the rear window above the tailgate was not broken. Lumber, which Olson had stacked lengthwise in his station wagon, was thrown out on the road. There was testimony indicating that the Siordia car came to a stop facing south with its right wheels about five inches off the pavement.

Although the facts recited above will support conflicting inferences, they are sufficiently corroborative of Siordia’s version of the accident to allow the jury to accept that version.

The trial court approved the jury’s findings. There is no sufficient showing that the findings were based upon incredible evidence or unreasonable inferences. The findings as to liability are affirmed.

The Jury’s Confusion as to the Distinction Between Negligence and Cause.

After the jury had retired it came back out to ask the trial court for a clarification of the word “cause” as used in the special verdict, with particular reference to whether negligence presumed cause. The trial court repeated its instruction on cause, which was identical with Wis J I — Civil, Part II, 1500, and its instruction on comparison, which was identical with Wis J I — Civil, Part II, 1575. The jury foreman stated that he believed the questions were answered. The necessity and extent of reinstruction or clarifying instruction to the jury must rest in the sound discretion of the trial judge. We find no error nor abuse of judicial discretion.

We deem other assignments of error as to instructions to be without mérit.

The Excessive Damages.

(a) Luisa Rodrigues. The trial judge in his memorandum opinion on motions after verdict stated that the only injury of consequence sustained by Luisa Rodriguez was a fracture of the left forearm. He pointed out that the fracture healed well and that Mrs. Rodriguez’s main complaint regarded the development of tendinitis. He felt that Dr. Mitz’s testimony on the tendinitis question was not positive as to whether it resulted from the trauma of the accident or from carrying a cast on her arm. He also pointed out that Mrs. Rodriguez had been discharged from treatment by Dr. Mitz on June 5, 1961, and was not seen again by the doctor until July 26, 1963, and then for the purpose of evaluation rather than treatment. He concluded that the jury verdict was excessive.

Mrs. Rodriguez was sixty years old at the time of the accident and sixty-three at the time of the trial. She testified, through an interpreter, that she experienced a great deal of pain all during the course of her treatment; that the pain subsided about the date she was discharged from treatment ; and that the pain returned about two weeks thereafter. She testified that motion was considerably restricted in her left arm.

Dr. Mitz testified that during the course of treatment she developed tendinitis. He attempted to alleviate this condition with intramuscular injections of cortisone and physical therapy. He testified that the pain she felt during the course of treatment was due to a traumatic type of tendinitis of the left shoulder. In describing tendinitis Dr. Mitz explained that it was an inflammation of a tendon and that the degree of pain associated with it ranges from mild to severe depending upon the individual case. As to the pain suffered by Mrs. Rodriguez he testified, “It was severe, very severe.”

Regarding whether the tendinitis related to her original injury he stated:

“I believe it was either directly from the injury itself or indirectly associated with the cast itself.”

He was unable to state positively that the tendinitis was associated with the cast. Based on his June 26, 1963, evaluation he felt that Mrs. Rodriguez had pain and a permanent limitation of motion as a result of the injuries she sustained. Her permanent disability was a weakness and loss of muscle power in her left forearm.

In his memorandum opinion oh motions after verdict, the trial judge stated, “The doctor’s testimony as to the tendonitis [sic] was not positive as to whether it resulted from the trauma of the accident or whether it was from carrying the cast on the arm.” There is no claim of negligent treatment by the physician. Counsel for the defendants conceded in oral argument that whether the tendinitis resulted from the accident or from the cast was immaterial.

(b) Frances Arias. Mrs. Arias was eighty-six years old at the time of the accident and eighty-nine years old at the time of trial. Dr. Mitz examined her prior to trial and concluded that her general physical condition was so poor that she could not appear at the trial. Counsel for Mrs. Arias stipulated prior to trial that her inability to appear was not solely due to the injuries she had received in the accident.

Mrs. Arias was taken home from the scene of the accident. Relatives, including Mrs. Rodriguez, sat up with her all night that night. She was in great pain. The next morning' she was taken to a Milwaukee hospital. There it was determined that her right femur was fractured at the neck. Because of her age and the nature of the fracture it was necessary for the attending physicians to remove by surgery the head and neck of the femur and insert a stainless steel prosthesis. Doing this caused a spiral fracture to the shaft of the femur, which had to be held in place by metal plates and screws. The operation itself, because of Mrs. Arias’ age and general physical condition, constituted a critical hazard, but the record does not reveal that she was aware of this hazard. Thus, anxiety compensable as a part of her pain and suffering was not established.

Mrs. Arias’ postoperative course was very good. She left the hospital seventeen days later. Dr. Mitz testified that he examined her on three occasions after she left the hospital. On the first- of these occasions he found that she was having a great deal of trouble walking. With the aid of a chair, which she pushed in front of her, she was able to take six to eight steps. This situation had not changed up to the time of trial. She complained of pain in the right hip area as far down as the lower leg, especially with motion. In the doctor’s opinion Mrs. Arias’ disability was permanent. In regard to whether the accident of October 2, 1960, caused this injury he testified as follows:

“Q. Now, based on this history and based on the injury that you described when you first examined her, do you have an opinion to a reasonable medical certainty as to whether her original fracture of the neck of the femur was caused — do you have an opinion as to the cause of this fracture to the neck of the femur ? A. Yes.
“Q. What is that opinion? A. My opinion is that the fracture could very well have been caused as a result of the automobile accident.”

• In the portion of his opinion relating to Mrs. Arias the trial judge indicated some doubt as to whether a causal connection was established between the fracture and the accident and stated that there was no testimony in the record that the inability of Frances Arias to walk or appear in court was in any way a result of or connected with the injuries she sustained in the collision. We conclude that Dr. Mitz’s testimony regarding the causal connection between the fracture and the accident is stated in terms of a reasonable medical certainty, notwithstanding the fact that he used the words “could very well have.”

The question of causal relation between the accident and the injury was for the jury. Dr. Mitz’s opinion, the description of the accident, including the position in which Mrs. Arias was found just after the collision, and the testimony concerning her physical condition and ability to walk before the accident contrasted with that concerning her physical condition and inability to walk soon afterwards constitute sufficient credible evidence to support an inference of a causal connection between the accident and her injury.

The trial judge concluded that the jury damage awards to Luisa Rodriguez and Frances Arias in the amounts of $6,500 and $25,000, respectively, were excessive but not due to perversity or prejudice and were not the result of prejudicial error in the trial. He found reasonable damages to be $2,500 for Mrs. Rodriguez, and $8,500 for Mrs. Arias.

The standard to be applied in reviewing a jury verdict on damages is set forth in Makowski v. Ehlenbach (1960), 11 Wis. (2d) 38, 41-43, 103 N. W. (2d) 907:

“2. The standard to be applied in reviewing a jury verdict on damages. The problem of achieving fairness in assessing damages for personal injury is fraught with difficulty. Theoretical nicety is impossible. Under our judicial system, we rely primarily upon the good sense of jurors to determine the amount of money which will compensate an individual for whatever loss of well-being he has suffered as a result of injury. The general rule governing the trial judge or appellate court in determining whether damages are excessive on the basis of the amount found is stated in 15 Am. Jur., Damages, pp. 621, 622, sec. 205, quoted with approval in Bethke v. Duwe (1950), 256 Wis. 378, 384, 41 N. W. (2d) 277, as follows:
“ ‘In actions sounding in damages merely, where the law furnishes no legal rule for measuring them, the amount to be awarded rests largely in the discretion of the jury, and with their verdict the courts are reluctant to interfere. As shown elsewhere, a verdict may be set aside as excessive by the trial court or on appeal when, and not unless, it is so clearly excessive as to indicate that it was the result of passion, prejudice, or corruption, or it is clear that the jury disregarded the evidence or the rules of law. . . .
“ ‘Since it is for the jury, and not for the court, to fix the amount of the damages, their verdict in an action for un-liquidated damages will not be set aside merely because it is large or because the reviewing court would have awarded less. Full compensation is impossible in the abstract, and different individuals will vary in their estimate of the sum which will be a just pecuniary compensation. Hence, all that the court can do is to see that the jury approximates a sane estimate, or, as it is sometimes said, see that the results attained do not shock the judicial conscience.’
“We should add to the statement just quoted that there are cases where the amount of an award may not indicate prejudice, perversity, or corruption, yet is too large to be supported by the evidence. Blong v. Ed. Schuster & Co. (1956), 274 Wis. 237, 242, 79 N. W. (2d) 820; Blaisdell v. Allstate Ins. Co. (1957), 1 Wis. (2d) 19, 24, 82 N. W. (2d) 886. A jury may mistakenly assume (without supporting evidence) that there have been, or will be certain effects from an injury or fix compensation for sufficiently proved effects of injury at a figure which is beyond the range of reasonably debatable amounts. In a case where it is clear to the court that the amount awarded must necessarily reflect an allowance for the effects of injury not sufficiently proved or reflect a rate of compensation which is beyond reason, the court will declare the damages excessive. Where the question is a close one, it should be resolved in favor of the verdict.”

In reviewing the actions of the trial court as to damage verdicts, the rules are set forth in Boodry v. Byrne (1964), 22 Wis. (2d) 585, 588, 589, 126 N. W. (2d) 503, as follows:

“Where a trial court has reviewed the evidence and has found a jury verdict awarding damages to be excessive and has fixed a reduced amount therefor, and has determined that there should be a new trial on damages unless the plaintiff exercises an option to take judgment on the reduced amount, this court will reverse only if we find an abuse of discretion on the part of the trial court. Lucas v. State Farm Mut. Automobile Ins. Co. (1962), 17 Wis. (2d) 568, 571, 117 N. W. (2d) 660, and cases cited therein.
“In reviewing the evidence to determine whether the damages are excessive both the trial court and this court must view the evidence in the light most favorable to plaintiff. Kincannon v. National Indemnity Co. (1958), 5 Wis. (2d) 231, 233, 92 N. W. (2d) 884. The trial court, however, is not required to search out one or several isolated pieces of testimony, which standing alone might sustain the damages found by the jury, but rather must review all the evidence bearing on damages and then, viewed reasonably as a whole, consider the same in the light most favorable to the plaintiff. On appeal from a determination by the trial court that the found damages were excessive, this court will not find an abuse of discretion if there exists a reasonable basis for the trial court’s determination after resolving any direct conflicts in the testimony in favor of plaintiff.”

Under the rules and standards as set forth above, we conclude that the evidence does sustain the jury’s award of damages for Luisa Rodriguez in the amount of $6,500, and that it was an abuse of discretion to determine the award was excessive. We will not again review the evidence except to point out that Mrs. Rodriguez was sixty years old at the time of the accident with a life expectancy of several years. She was active and in good health before the accident. She now has a permanent injury to her left arm and shoulder which is both painful and restrictive as to use and motion. To be sure the award is generous. Even though this court, if it were to find damages, might well have awarded a lesser sum, we cannot conclude $6,500 is beyond reasonable limits.

The situation as to Mrs. Arias as revealed by the record is somewhat different. She was eighty-six years old at the time of the accident and eighty-nine at the time of trial. Her life expectancy is relatively short. Mrs. Arias had the burden to prove her damages. For physical reasons unknown to us or the jury she was not able to be present at the trial. Her injury was severe and she has a confining permanent injury although her recovery was excellent for a woman of her age and general physical condition. The evidence of her pain and suffering and general discomfort is meager without resort to speculation or conjecture. There is no proof of wage loss or earning capacity. While we sympathize with Mrs. Arias, sympathy cannot be a substitute for proof of damage. The jury award of $25,000 for her personal injuries cannot be sustained under the evidence as being within reasonable limits. We agree with the trial court that the award was excessive.

Under the Powers rule the trial court found the reasonable amount of her damage to be $8,500. Contrasted to the $6,500 award to Mrs. Rodriguez, this award may appear low. It is not our purpose to determine whether damage awards are high or low, nor to substitute our judgment for that of the jury or the trial court but rather to determine whether the award is within reasonable limits. The majority of the court concludes that $8,500 is within the range of reasonableness and that the trial court did not abuse its discretion in fixing the award for her option in that amount.

By the Court. — The interlocutory judgment insofar as it sustains the jury’s finding and apportionment of causal negligence is affirmed; the interlocutory judgment insofar as it sets aside the jury’s verdict as to the sum which will reasonably compensate Frances Arias for her personal injuries and orders a new trial on the issue of damages with the option in Frances Arias to take judgment for $8,500, plus special damages and the costs and disbursements of the action, is modified to provide that such option be exercised within twenty days of the return of the record to the trial court, and affirmed as modified. The interlocutory judgment insofar as it sets aside the jury verdict as to the sum which will reasonably compensate Luisa Rodriguez for her personal injuries is reversed with directions to reinstate the verdict and render judgment thereon.

Wilkie, J.

(dissenting in part). I agree with the majority in its reversal of the trial court with respect to the judgment in favor of Luisa Rodriguez. I, too, would reinstate the jury verdict.

I disagree, however, with the majority in its affirmance of the trial court with respect to the judgment in favor of Frances Arias. As in the case of Boodry v. Byrne I agree with the majority that the jury verdict setting Mrs. Arias’ general damages at $25,000 was excessive. However, as in Boodry, I dissent here for the reason that in fixing the option at $8,500, or a reduction of $16,500, I believe the trial court has arrived at a figure that is below the range of reasonably debatable amounts for a jury award under the facts of the case, viewed in the light most favorable to the plaintiff. Here I would follow the procedure set forth in my dissent in Boodry, supra, and raise the amount of the option, first holding that the trial court abused its discretion in setting the amount of the option, and second, determining a reasonable sum (in lieu of the sum fixed by the trial court) as the total amount of the general damage award.

I realize that since Powers there has been no case wherein (1) our court has affirmed a trial court’s finding that a jury award is excessive, and (2) our court has found a sum deemed reasonable by the trial court to be inadequate and below the range of reasonably debatable amounts for a jury award. I would say that this presents just such a case. So, too, did Boodry. In effect, I would rewrite the option, raising the figure to a sum that is within the range of reasonably debatable amounts. To do this requires no modification of the Powers rule, but merely a new and logical refinement for the application of that rule.

The chief criticism of adopting this procedure is the fear that it might invite supreme court review of more jury verdicts. I cannot see how this would be the case. The only instances where the option would be adjusted would be where first, the trial court correctly decides that the verdict is excessive, and second, the trial court sets an option amount that is below the range of reasonably debatable amounts. This court, in making its review to ascertain whether an amount set by the trial court falls within the range, at the same time is determining whether, on the contrary, the amount set is below the range. Where the court reaches the latter conclusion, the court should adjust the option and set a reasonable figure. The basic purpose of the Powers rule, i.e., the elimination of unnecessary retrials, would be furthered by following this procedure.

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

       “. . . in the case of any other intervening act made necessary or proper because of the act of the primary wrongdoer or set in motion by him so that it can be attributed as a natural consequence of the original act, the original wrongdoer is liable for the additional or increased damages resulting therefrom.” 15 Am. Jur., Damages, p. 493, sec. 83; see also Heims v. Hanke (1958), 5 Wis. (2d) 465, 93 N. W. (2d) 455.

        Powers v. Allstate Ins. Co., supra.

       (1964), 22 Wis. (2d) 585, 126 N. W. (2d) 503.

        Powers v. Allstate Ins. Co. (1960), 10 Wis. (2d) 78, 102 N. W. (2d) 393.


source: Caselaw Access Project

author: Wilkie, J.

license: Public Domain

text:
    St. Paul Fire & Marine Insurance Company, Plaintiff and Respondent, v. Burchard, Defendant: Badger Mutual Insurance Company, Defendant and Appellant. Kiefer, Plaintiff and Respondent, v. Same, Defendant: Same, Defendant and Appellant.

      September 29

    October 27, 1964.

      For the appellant there were briefs by Roberts, Boardman, Suhr & Curry, and oral argument by Henry A. Field, Jr., all of Madison.
    For the respondents there was a brief by Aberg, Bell, Blake & Metzner of Madison, and oral argument by Carroll E. Metzner.

   Wilkie, J.

Four issues are presented on this appeal:

1. Was there credible evidence to support the jury finding that LaVerne Kiefer was not negligent?

2. Did remarks made by Burchard’s counsel during his closing argument constitute reversible error?

3. Did the trial court err in submitting special-verdict questions?

4. Did the trial court err in denying Badger Mutual’s motion for a separate trial on the question of its policy defense?

Guest’s Negligence.

As to the first issue, appellant contends that Kiefer was negligent as a matter of law in riding with a driver who had been drinking, in respect to lookout, and in his failure to warn or object. A jury verdict will not be upset if there is any credible evidence which, under any reasonable view, fairly admits of an inference supporting the finding. Evidence is to be viewed in the light most favorable to support the verdict. A guest must exercise ordinary care for his own safety. A guest who has indulged in intoxicants is held to exactly the same standard of care. As Kiefer’s actions must constitute negligence as a matter of law to upset the verdict, his conduct under the circumstances must always create an unreasonable risk of harm to himself.

First considering Kiefer’s alleged negligence in riding with a driver who had been drinking, we believe that the circumstances in this case are quite similar to those in the recent case of Murray v. Reidy, where the court said:

“In the absence of undisputed evidence that the driver had manifested symptoms of being under the influence of liquor which adversely affected his driving ability, it cannot be held as a matter of law that the passenger has proceeded in the face of a known danger and, therefore, has failed to exercise due care for his own safety.”

The accident occurred shortly before 6 a. m. Burchard had had at least ten drinks since early the previous afternoon but had not imbibed after the bars closed at 2 a. m. He ate a snack early in the evening. Car trouble had forced him to walk three blocks in the rain. Mrs. Hunt lent her car with no qualms. Neither she nor any of the others on the boat testified that Burchard’s actions appeared impaired by the alcohol. The police, of course, smelled liquor on his breath. This they could have done even if he had consumed only a single drink. There is no evidence in the record which would indicate that alcohol affected Burchard.

Although a passenger who encounters a known hazard upon entering an automobile may be negligent, we cannot say that, as a matter of law, Kiefer failed to exercise reasonable care for his own safety in merely riding with Burchard after the latter had been drinking.

As to Kiefer’s alleged negligence as to lookout it is, of course, the rule that a passenger is obligated to keep a reasonable lookout. However, the record is barren of any evidence which indicates that Kiefer was derelict in his duty as to lookout.

A passenger is also bound to exercise reasonable care to warn his driver of approaching danger. Burchard testified that he was traveling between 40 and 45 miles an hour. Appellant asserts that the physical evidence conclusively indicates that Burchard’s speed was much greater and that Kiefer was therefore negligent in failing to warn Burchard of the upcoming curve. Appellant emphasizes the 96-foot skid marks, the displacement of an embedded boulder (about 3]/2 to 4 feet wide, 3 feet thick and 4 feet from top to bottom), the sound of the impact, the fact that the windshield was thrown 30 feet, and photographs of the wreck.

This evidence is entirely consistent with Burchard’s claim that he was going 40 to 45 miles an hour as he came to the curve. No part of this evidence supports the proposition that as a matter of law his speed was greater. The heavy Chrysler, starting to skid on the wet blacktop, skidded more or less sideways for 96 feet and would have gone farther had it not met stern resistance from the boulder and then the tree. Even on dry pavement it takes 149 feet to brake to a stop from 40 miles an hour. The length of the skid marks does not conclusively show speed in excess of 40 miles an hour. The noise of the crash, the dislodging of the rock, the displaced windshield, and the photographs of the demolished car, all point to a forceful impact but, especially considering how heavy the car was, these physical facts are inconclusive and will not upset the jury’s findings based on other evidence. It is argued that even conceding that the speed was only 40 to 45 miles per hour, Kiefer still had a duty to warn the driver of the upcoming curve. The important fact remains that the curve was unmarked and there is no evidence to show that Kiefer was aware of the danger. The trial judge stated:

“. . . I don’t believe that I can hold as a matter of law that a guest in the right rear seat is under duty to criticize and direct the driver to desist from a speed of 40 miles an hour in a 25 miles an hour zone in the city at that hour of the morning when it was perfectly obvious and the testimony shows that there was utterly no traffic at all, . . .”

Our conclusion is that there is credible evidence to support the finding of the jury. Kiefer’s conduct, under the circumstances, would not always create an unreasonable risk of harm to himself, and it cannot be said as a matter of law that he was negligent.

Prejudicial Argument by Counsel.

Burchard’s counsel, in his final argument, said:

“I say that is my only purpose here representing Mr. Burchard to try to help you arrive at an opinion that there were no limitations, and that the insurance carrier cannot crawl out of this by trying to make you believe that there are no limitations.”

Appellant contends that because this remark informed the jury of the effect of their answer it constitutes reversible error. The trial judge struck the word “crawl” but otherwise let the remark stand without instruction. The jury question on this particular issue inquired whether Burchard had permission to use the car. The jury found that he had.

At best the statement is confusing. Counsel told the jury that “the insurance carrier cannot crawl out of this by trying to make you believe that there are no limitations.” The position of the insurance company was actually just the contrary. The company wanted the jury to find a limitation. Because of the phrasing, had the jury been swayed by the remark, the result would have been favorable to the insurance company.

The issue which was commented upon was put to the jury as follows:

“At the time and place of the accident was the defendant, Gerald C. Burchard, operating the 1959 Chrysler with the permission of the owner, Mrs. Lois Hunt?”

The question was not even couched in terms of a limitation. Therefore, the jury could not have learned the effect of their answer to that question on the ultimate verdict in the case.

Special-Verdict Questions.

As to Burchard’s authority to use Mrs. Hunt’s car, the trial court rejected the following questions requested by Badger Mutual:

“Did Lois Hunt place a limitation on the use of her vehicle by Gerald Burchard ?
“If you answer yes to question No. 6, then answer the following question. Did Gerald Burchard exceed or violate that limitation ?”

Sec. 270.27, Stats., gives the trial court discretion in submitting special-verdict questions. There was no doubt that Burchard had permission to borrow Mrs. Hunt’s car. It was not clear, however, whether- a time limitation had been put on the use of the car. Mrs. Hunt testified that she told Burchard to have it back “within at least a half hour.” Another witness said that Burchard was instructed to “bring the car right back.” Burchard recalled no limitations. In any event, the accident happened within a half hour of the time Burchard took the car and therefore any question couched in terms of whether the limitation was observed would be completely unsupported by the record.

As to Kiefer’s negligence, the court submitted the following question:

“Did LaVerne Kiefer fail to exercise ordinary care for his own safety?”

Appellant requested a question with a breakdown as to riding with Burchard, protestation, lookout, and failure to warn. The trial court properly used discretion, granted to it under sec. 270.27, Stats., in submitting the question in the omnibus form rather than as requested.

Denial of Separate Trial.

The trial court has wide discretion in determining whether a separate trial should be ordered on a coverage question where an insurer has been made a party to a lawsuit under sec. 260.11, Stats. Although in Charneski this court recommended that the procedure of a separate trial be used more frequently, no mandate has been given that trial judges must grant a motion for a separate trial in every case and there was no abuse of discretion by the trial court in deciding that the interests of the parties and the public were better served in the case at bar by disposing of all issues in one trial.

By the Court. — Judgment affirmed.

        Rodenkirch v. Johnson (1960), 9 Wis. (2d) 245, 101 N. W. (2d) 83; Maccaux v. Princl (1958), 3 Wis. (2d) 44, 87 N. W. (2d) 772.

        Rodenkirch, supra, footnote 1; Ruid v. Davis (1959), 8 Wis. (2d) 288, 99 N. W. (2d) 129.

        Theisen v. Milwaukee Automobile Mut. Ins. Co. (1962), 18 Wis. (2d) 91, 118 N. W. (2d) 140, 119 N. W. (2d) 393; McConville v. State Farm Mut. Automobile Ins. Co. (1962), 15 Wis. (2d) 374, 113 N. W. (2d) 14.

        Watland v. Farmers Mut. Automobile Ins. Co. (1952), 261 Wis. 477, 53 N. W. (2d) 193.

        Murray v. Reidy (1963), 21 Wis. (2d) 254, 124 N. W. (2d) 120.

        Supra, 21 Wis. (2d) at page 258, 124 N. W. (2d) at page 122, footnote 5.

         McConville v. State Farm Mut. Automobile Ins. Co., supra, footnote 3.

        Murray v. Reidy, supra, footnote 5, and Theisen v. Milwaukee Automobile Mut. Ins. Co., supra, footnote 3.

         Teas v. Eisenlord (1934), 215 Wis. 455, 253 N. W. 795.

       Wisconsin’s Manual for Motorists (rev. ed. January, 1963).

        Pagel v. Holewinski (1960), 11 Wis. (2d) 634, 106 N. W. (2d) 425; New Amsterdam Casualty Co. v. Farmers Mut. Automobile Ins. Co. (1959), 5 Wis. (2d) 646, 94 N. W. (2d) 175.

       Relying on Erb v. Mutual Service Casualty Co. (1963), 20 Wis. (2d) 530, 123 N. W. (2d) 493.

        Allstate Ins. Co. v. Charneski (1962), 16 Wis. (2d) 325, 114 N. W. (2d) 489; New Amsterdam Casualty Co. v. Farmers Mut. Automobile Ins. Co., supra, footnote 11; Ritterbusch v. Sexmith (1950), 256 Wis. 507, 41 N. W. (2d) 611.

        Supra, footnote 13.


author: Hallows, J.

text:
    Karp, d/b/a Capitol Court Travel Service, Respondent, v. Coolview of Wisconsin, Inc., Appellant.

      September 30

    October 27, 1964.

      For the appellant there was a brief by Herbert L. Usow, attorney, and Robert Sanderson of counsel, both of Milwaukee, and oral argument by Mr. Usow.

    For the respondent there was a brief and oral argument by Seymour Gimbel of Milwaukee.
   Hallows, J.

The defendant claims the trial judge made no findings of fact and conclusions of law but is under the erroneous impression that when a trial judge makes an oral decision from the bench he must also state at that time all the findings of fact on which he bases his decision. In this case after the oral decision, the plaintiff’s attorney prepared written findings of fact and conclusions of law, submitted them to counsel, and presented them to the court. “When the trial judge signed such findings and conclusions they became the findings and the conclusions of the trial judge and the responsibility of their correctness became his.” Kamuchey v. Trzesniewski (1959), 8 Wis. (2d) 94, 101, 98 N. W. (2d) 403; Galusha v. Sherman (1900), 105 Wis. 263, 81 N. W. 495.

The court adopted the plaintiffs version of the facts that plaintiff had extended credit to the defendant for the airline tickets for officers of the corporation and others in light of a custom which had existed between the plaintiff and the defendant. Whether the findings of the court are against the great weight and clear preponderance of the evidence depends upon whether the court was in error in allowing evidence as to the custom and in finding there was no accord and satisfaction.

The facts are in dispute. According to the plaintiff’s version A1 Kaplan, the defendant’s treasurer, placed reservations for 14 tickets to Florida in December of 1962. One reservation was subsequently canceled. These tickets were for A1 Kaplan, his wife and three children, for his father-in-law AI Laiken, president of the defendant, and Mrs. Laiken, Ben Braver, a nephew of Laiken, and Mrs. Braver, Howard Braver, also a nephew of Laiken, and Mrs. Braver, and Mr. and Mrs. Earl Bowling. In the testimony the Bravers and Bowling are variously referred to as employees, salesmen, or as independent contractors. Over the objection of the defendant the court admitted evidence of a course of conduct between the plaintiff and the defendant to the effect Lai-ken and Kaplan as officers of the defendant opened a charge account with the plaintiff in March, 1962, and thereafter on three occasions airplane tickets were ordered, sent to the corporation and paid for by the corporation. These tickets were for Laiken and Kaplan and their wives and on occasion Mr. and Mrs. Laiken, a Mr. and Mrs. Zuber, and a Mr. and Mrs. Bowling. Two of these trips were to Las Vegas, Nevada.

The tickets for the Miami trip of December, 1962, were picked up by Bowling and the company was billed $1,682.43 therefor on December 24th. Similar bills were sent the defendant on January IS, January 25, and February 23, 1963. Plaintiff claims that when the bill was not paid he talked to Mr. Kaplan who stated he took thirty to sixty days for payment. Later after the February bill was sent with a notation referring to a sixty-day time payment request, a request was made that the company be billed only for Kaplan’s and Laiken’s tickets and the bills were to be sent to the individuals for their tickets. The defendant paid the bill for the Laiken and Kaplan tickets. This suit involves the payment for the other six tickets.

The defendant’s testimony showed the individuals ordered their own tickets and there was no express promise on the part of the defendant to pay for any of the tickets, that such payments as the corporation had made in the past for airplane tickets were charged back to the officers or in the case of Bowling to his earned commissions. We cannot say the findings are against the great weight and clear preponderance of the evidence if the evidence of the individual custom existing between the defendant and the plaintiff is considered.

The plaintiff contends this evidence was properly admissible and tends to show what the contract between the parties was and that he had a right to rely upon his past credit business with the defendant in this instance. The fact of the custom is not denied by the defendant, only its admissibility is challenged. In a breach-of-contract action a local custom or usage or an individual course of dealing between two parties may be proven as having probative value to show the intention of the parties to a contract or on what the parties had a right to depend in their dealing. 4 Jones, Evidence (5th ed.), p. 1932, rules 49 and 50; also see Rylander v. Laursen (1905), 124 Wis. 2, 102 N. W. 341. Here, the plaintiff at the defendant’s request had on three prior occasions extended credit to the defendant under similar circumstances and had been paid for the airplane tickets by the corporation. How the defendant charged back the tickets to its officers is no part of the custom in respect to the plaintiff as he had no knowledge of the charge backs. We find no error in the court’s admitting the evidence of the prior course of conduct between the parties.

The defendant claims there is an accord and satisfaction when it paid for the Kaplan and Laiken tickets. The check referred to the seven tickets and was marked “paid in full” but such action does not amount to an accord and satisfaction of the plaintiff’s claim. An accord and satisfaction is contractual in nature and one essential element is the acceptance of a payment as full satisfaction for a disputed and unliqui-dated amount. Olson v. Northwestern Furniture Co. (1959), 6 Wis. (2d) 178, 94 N. W. (2d) 179; Lange v. Darling & Co. (1940), 233 Wis. 520, 290 N. W. 188; 1 Am. Jur. (2d), Accord and Satisfaction, p. 301, sec. 1. The record discloses no unliquidated claim or any agreement to accept payment for seven tickets from the defendant in full satisfaction of 13 tickets. The most that can be said for the evidence is the defendant paid for the Laiken and Kaplan tickets in full and refused to pay for the other six tickets.

The defendant also claims it is not liable because the promise to pay the debt or obligation of a third party must be in writing otherwise it is barred by the statute of frauds. Sec. 241.02, Stats. The difficulty with this argument is it is based upon a view of the facts not found by the court. The plaintiff does not claim the defendant promised to answer for the obligation of a third party but promised to pay its own primary obligation to the plaintiff. See Mann v. Erie Mfg. Co. (1963), 19 Wis. (2d) 455, 120 N. W. (2d) 711. The defendant’s argument that independent contractors cannot bind the defendant is likewise beside the point as the court found the tickets were purchased on behalf of the corporation by one of its officers within the scope of a prior course of dealings which legitimately gave the plaintiff a right to depend upon the obligation and credit of the defendant.

The defendant contends the complaint should have been dismissed on its motion because the evidence showed the plaintiff and his wife operated as a partnership and Harry Karp was suing as a sole trader. The plaintiff contends the answer admits the allegations in the complaint and therefore the issue could not be subsequently raised. The complaint alleges the plaintiff Harry Karp was engaged in the travel service business but not that he did business as the Capitol Court Travel Service. However, this is immaterial because although sec. 263.12, Stats., provides for a waiver to objections to the complaint if not interposed by demurrer or answer it would not apply if Mrs. Karp was an indispensable party. The partners of a partnership are not only necessary but indispensable parties to the assertion of a partnership cause of action, De Wit v. Lander (1888), 72 Wis. 120, 39 N. W. 349, and therefore the question of the nonjoinder of Mrs. Karp might be raised at any time during the proceeding while the court retains jurisdiction, McDougald v. New Richmond R. M. Co. (1905), 125 Wis. 121, 103 N. W. 244.

Upon the trial Harry Karp testified his wife was his partner, that “it is not legal” but that they made out joint income tax returns and split the profits from the business. In their joint income-tax return each attached a separate schedule C entitled profit or loss from business. No salary was scheduled for Mrs. Karp but her schedule showed she received $5,000 in 1962 from the partnership. This evidence constituted prima facie proof of a partnership under sec. 123.04 (4), Stats.

However, it does not follow that the complaint should have been dismissed. The court should have made a determination and if it found a partnership existed should have ordered Mrs. Karp made a party plaintiff as a partner. This issue was not completely tried by the trial court.

It is the opinion of this court the judgment should be set aside and the matter remanded for further proceedings to determine whether Harry Karp is a sole trader or whether Harry Karp and his wife are partners in the travel service business operating under the name of Capitol Court Travel Service. If it is determined Harry Karp is a sole trader the judgment should be reinstated; if it is determined Harry Karp and his wife are partners doing business as Capitol Court Travel Service, the trial court shall order Mrs. Karp be brought in and the pleadings so amended and shall give her the option of accepting the judgment in favor of the partnership.

By the Court. — Judgment reversed, and the cause remanded for further proceedings not inconsistent with this opinion; the appellant to recover costs on this appeal.


author: Gordon, J.

text:
    Walter Laev Used Cars, Inc., Appellant, v. Olkowski, Respondent.

      September 30

    October 27, 1964.

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

      For the respondent there was a brief and oral argument by George E. Kunde of Milwaukee.
   Gordon, J.

When the purchaser of goods becomes dissatisfied with his purchase, there are a number of remedies available to him. The buyer may seek relief either under the contract or by disaffirming it. Among the types of action which may be maintained are those for rescission or fraud. Various remedies available to the purchaser were considered in Beers v. Atlas Assurance Co. (1939), 231 Wis. 361, 368, 285 N. W. 794.

In the instant case, upon deciding that the automobile was not as it had been represented, the buyer returned the vehicle to the seller and caused payment on the checks to be stopped. The complaint of the seller sought judgment upon the two checks given by the defendant; her answer denied that there was any consideration for the checks and alleged that payment was stopped “for good and sufficient cause.”

Prior to the introduction of any testimony, a stipulation was entered into by the attorneys for the respective parties. The stipulation provided that the sole issue was whether there had been a failure of consideration as to the two checks. This stipulation was never repudiated by either side.

We know of no reason why the aforesaid stipulation should not be given full effect. It is apparent from the record that the plaintiff seller fully relied upon it, both in regard to the nature of the presentation of proof and in the objections which were made to the receipt of evidence at the trial.

In view of the stipulation, we are not concerned with the various remedies which might otherwise be available to a dissatisfied purchaser. The sole question, as the parties stipulated, is the failure of consideration for the notes in question. Under sec. 116.29, Stats., the negotiable instruments are presumed to have been issued for a valuable consideration.

There is a difference between a failure of consideration and a partial failure of consideration. In Herman v. Gray (1891), 79 Wis. 182, 188, 48 N. W. 113, the court recognized this distinction when it said:

“. . . the answer contains but a single defense to the action, to-wit, a total failure of the consideration for the note in suit. If a partial failure of such consideration may be pleaded as a defense. . . , no such defense is sufficiently pleaded in this answer; . . .”

The distinction between the two defenses is suggested by sec. 116.33, Stats., which provides as follows :

“Absence or failure of consideration is matter of defense as against any person not a holder in due course; and partial failure of consideration is a defense pro tanto, whether the failure is an ascertained and liquidated amount or otherwise.”

The distinction was squarely ruled upon by the Alabama court in First Nat. Bank v. Town of Luverne (1938), 235 Ala. 606, 610, 180 So. 283, where the court said:

“Partial failure of consideration and want of consideration are different defenses, and the one does not include the other. Want of consideration is a bar to the action, while partial failure of consideration only goes in reducing the recovery, and in legal effect, concedes consideration sufficient to sustain the notes.”

The evidence in this case will not permit a finding that there was a failure of consideration. It is clear that the automobile which the purchaser received was not worthless. The record demonstrates that the purchaser drove it at least 150 miles. Because the automobile did not operate properly does not mean that it was wholly without value.

The burden of proving that there was a failure of consideration was upon the purchaser. In Estate of Hatten (1940), 233 Wis. 199, 215, 288 N. W. 278, this court said:

“The claimant’s claim is founded upon a negotiable promissory note. There must, of course, be consideration to support it, otherwise it is subject to the defense of no consideration as between the parties to it and as against one who is not a holder in due course. Sec. 116.33, Stats. Every negotiable instrument is deemed prima facie to have been issued for a valuable consideration. Sec. 116.29, Stats. Want of consideration may, of course, be shown, but the burden upon him who asserts such want of consideration is the same, or at least as great, as that required to establish a mistake. Estate of Flierl, 225 Wis. 493, 274 N. W. 422. To reform a written instrument on the ground of mistake the proof must be clear and satisfactory.”

The decision of the circuit court stated as follows: “There was a failure of consideration. The vehicle was not as it was represented to be.” We believe that such decision is erroneous. The fact that the vehicle was not as it was represented to be does not mean there was a failure of consideration; it may mean that there was a partial failure of consideration or that there were grounds for rescission. However, under the stipulation which was entered into, the only inquiry which the court was free to make was whether there had been a failure of consideration. The record clearly does not support a finding that the defendant met her burden in that regard. The plaintiff was entitled to judgment.

By the Court. — Judgment reversed.


author: Fairchild, J.

text:
    Mahoney, Appellant, v. State Personnel Board, Respondent.

      September 30

    October 27, 1964.

      For the appellant there was a brief and oral argument by Philip L. Kapell of Madison.
    For the respondent the cause was argued by Robert J. Vergeront, assistant attorney general, with whom on the brief was George Thompson, attorney general.
   Fairchild, J.

No permanent employee in tire classified service may be suspended without pay or discharged except for just cause. There may be an appeal from the action of the appointing officer to the State Personnel Board. The board must make findings of fact, and its decision may be reviewed under sec. 227.15, Stats., and succeeding provisions.

It is undisputed that Mahoney’s duties included window washing, and it is clear that if the findings of the board, previously quoted, are sustained by the evidence, the findings, in turn, support the conclusion (whether of ultimate fact or law) that Mahoney was discharged for just cause. The board found, in substance, that he deliberately and repeatedly refused to perform a duty of his employment, without excuse.

There was evidence that some of the windows in the building were not equipped with proper protection for a man washing them from the outside. Mr. Mahoney claims that he was being asked to wash these windows as well as others, thus endangering him, and his testimony would support that claim. Several representatives of the society testified, however, that the windows in question were certain second-floor windows which could be safely washed from balconies beneath them. The board resolved the conflict in testimony in favor of the society’s position. The decision was supported by substantial evidence in view of the entire record.

Mr. Mahoney contended before the circuit court, and here, that sec. 16.29 (4), Stats., entitled him to different treatment. That section requires an appointing officer to transfer an employee to less arduous duties, or place him on a part-time basis, or retire him when the employee becomes physically incapable to perform his duties by reason of infirmities or disabilities.

At one point, on August 10th, after several refusals to perform the assigned task, without claiming any disability, Mahoney did claim a pain in the neck, and there is a doctor’s report indicating that the doctor saw him later that day and prescribed treatment for myalgia of cervical muscles. He did not offer illness as an excuse for refusal to perform the work on August 27th. He did not mention to the personnel board that he based his appeal on sec. 16.29 (4), Stats. We conclude that he has failed to show the type of disability which would entitle him to the application of that section.

By the Court. — Judgment affirmed.

Wilkie, J., took no part.

       Sec. 16.24 (1) (a), Stats.

        Bell v. Personnel Board (1951), 259 Wis. 602, 606, 49 N. W. (2d) 889.


text:
    Estate of Beat: Madison Bank & Trust Company, Administrator w.w.a., and others, Appellants, v. Beat, Respondent.

      September 30

    October 27, 1964.

      For the appellants there were briefs by Roberts, Board-man, Suhr & Curry and Arthur L. May, all of Madison, for the Madison Bank & Trust Company, administrator w.w.a., concurred in by Richard Hollern of Madison, for Ruth Greve, Doris Kittleson, and Hazel Syverud, and oral argument by W. Wade Boardman.

    For the respondent there was a brief by Hall & Griffith of Madison, and oral argument by Laurence W. Hall.

   Wilkie, J.

Two issues are presented by the contest over the postnuptial agreement:

First: Is the postnuptial agreement valid ?

Second: May the widow elect under sec. 233.12, Stats., to take her share as provided by law rather than by the post-nuptial agreement ?

Validity of Postnuptial Agreement.

Postnuptial agreements are permitted in Wisconsin. Nevertheless, the trial court found this agreement to be “void and of no legal effect” specifically finding:

“8. That the said petitioner, Helen Docken Beat, was persuaded by the decedent to sign the marital agreement dated March 9, 1959, without knowledge or effect of its terms.
“9. That the decedent Roy Beat attempted to prevent his wife Helen Docken Beat, petitioner herein, from sharing in his estate in an unfair and imposing manner, without proper disclosure to her of her rights.
“10. That the said decedent in his relationship to the said petitioner as her husband overreached his said wife and persuaded her to sign the said marital agreement by duress and coercion.
“11. That the said decedent, Roy Beat, was guilty of such imposition and overreaching in obtaining the signature of petitioner Helen Docken Beat to the said marital agreement as to constitute actionable fraud sufficient to void the said marital agreement.”

These findings will not be upset unless they are against the great weight and clear preponderance of the evidence.

What then are the facts surrounding the signing of the agreement? The evidence is substantially undisputed. In 1957 Roy Beat, about seventy-one years old at the time and who had been a widower for many years, met Helen Docken, about fifty-two years of age, who had been widowed since 1955. She had inherited a farm worth $30,000, and $10,000 in insurance when her husband died. She managed the farm and made many improvements to it. Both had grown children and, in addition, Mrs. Docken had a minor daughter, Nyla, living with her.

Mrs. Docken had been working as a waitress at the Post Cafe in Mt. Horeb since 1955 and it was while so employed she first became acquainted with Mr. Beat. The two dined together on a number of occasions. There was talk of marriage late in 1958, and they were married in Dubuque, Iowa, on March 4, 1959. They returned to Wisconsin immediately. The new Mrs. Beat stayed at her farm and Beat returned to his apartment to live.

Shortly after this, Nyla came down with pneumonia and was hospitalized. The newlyweds did not see each other again until around 6 p. m. on March 9th, when Beat met his wife at the hospital where she was visiting Nyla. He insisted that she had to come with him to sign “that paper.” He then took her to the Madison Club for that purpose. There, by prearrangement, they met Beat’s attorney (Mr. Arthur May). Mrs. Beat had not met him before. The three had a drink or two before eating.

After dinner, the attorney produced the agreement which he had dictated that day at Beat’s request and in his presence. According to Mrs. Beat, this was the first time the subject of the release had even been broached. After reading the document, she was asked if that was the agreement she wanted drawn up and if there was anything she did not understand. The attorney stated that if she did not have any questions she should sign it. She was told that the agreement would sever all her rights in Beat’s property, but the rights she would have in absence of the agreement were not elaborated. The club manager witnessed the signing. There was a dispute as to whether the signing took place in one room or another. She was given a copy of the document which she still had at the time of Beat’s death.

Mrs. Beat returned to the hospital and they did not meet again until March 17th, when they went to Florida for a month. Mrs. Beat and her daughter then moved into Beat’s apartment. Nyla lived there until she graduated from high school. At no time did Mrs. Beat question or object to the signing of the agreement or to its provisions.

We must measure this evidence and other evidence in the record against the standards to be used in ruling on the validity of a postnuptial agreement. Each case must be decided on its own facts.

Although there is nothing inherently suspicious or bad about a postnuptial agreement, these agreements will be regarded with rigid scrutiny. Yet the widow, in asserting fraud, has the burden of proving it. In meeting this burden she may be aided by a presumption of fraud that arises in those instances where she is not adequately provided for by the terms of the agreement and where there has not been a full and fair disclosure to her of the husband’s worth.

Since Mrs. Beat received nothing from her husband’s estate under the agreement, a presumption of fraud arises unless there was a full and fair disclosure to her of Mr. Beat’s worth. At the time she signed the agreement there was no recitation to her of the nature and value of his property. Mrs. Beat admitted that she was previously aware of his ownership of an interest in a thriving hardware store in Mt. Horeb and in an apartment in that village. She denied any previous knowledge as to his farm, or farm personalty, but these holdings were obvious to anyone who, like Mrs. Beat, had lived for years in the Mt. Horeb area, and whose farm, in fact, was located in the same township of that of Mr. Beat. His substantial interests in the local bank and in the Wisco Hardware Company were well known in the community but there is no evidence that she knew about them. She knew of his manner of living and of his winter trips to Florida.

Under all the circumstances there was a failure on Mr. Beat’s part to disclose the extent of his property and a presumption of fraud arises. Therefore, we must look to all the evidence to determine not only whether this presumption is rebutted but also whether the trial court’s findings that Mrs. Beat was persuaded by decedent to sign “without knowledge or effect of its terms” (Finding 8), that “the decedent . . . attempted to prevent [her] . . . from sharing in his estate in an unfair and imposing manner, without proper disclosure to her of her rights” (Finding 9), that the decedent “overreached his said wife and persuaded her to sign ... by duress and coercion” (Finding 10), and that the overreaching was such “as to constitute actionable fraud” (Finding 11), are all against the great weight and clear preponderance of the evidence.

Mrs. Beat was not an ignorant person. The skilful managing of her farm attests to her business acumen. Having recently inherited property from her husband, she must have been vaguely familiar with widows’ rights in their husbands’ estates. She had considerable property of her own. The prospect of leaving the hospital to execute the agreement upset her. But she protested not because of qualms over “that paper” but because her daughter was ill.

Much is made by the respondent of the fact that Mrs. Beat was first confronted with the agreement at dinner. But she read it in its entirety and indicated her satisfaction. The agreement was not legalistic; rather, it was very short and to the point. The effect of signing it was explained to her. In Estate of Knippel, the court said, at page 347 :

“While misrepresentation of the effect of the agreement as giving her more than she would have been entitled to- in its absence, considered in the light of the relationship between the parties and the asserted fact that the parties had never previously discussed an agreement, that she saw it for only twenty minutes before it was signed, and that she was not given a copy until years later, would have constituted fraud if she relied upon such misrepresentation, the county court was not compelled to make a finding of fraud.”

Mrs. Knippel did receive a copy of the disputed agreement two years after it was executed and nearly seven years before her husband died. She never alleged any misrepresentation. The court concluded, at page 347:

“. . . she had failed to take any action to set aside the agreement during Mr. Knippel’s lifetime although she testified that she had seen a copy and expressed her dissatisfaction with it a number of years before he died.”

In the present case, Mrs. Beat received a copy of the agreement when it was executed and retained it until Beat’s death three years later without any objection whatsoever.

In Estate of Nickolay, the husband took his wife to an attorney on the day after their wedding to execute a post-nuptial agreement. The attorney drafted the document while they were there. Mrs. Nickolay was unaware of any of the terms or possible consequences except that she was to receive $500. No fraud was found. It is true that some consideration flowed to the wife. But without the agreement she would have been entitled to $20,000. The fact that this was not explained to her did not vitiate the contract. In the case at bar, Mrs. Beat read the agreement and the consequences of her signing away any right she might have in his property were explained. Thus there is much less of a taint of fraud than in Nickolay. In Nickolay the court also discounted the failure of decedent to make a full disclosure of his property to the new wife before she signed the postnuptial agreement. The court stated:

“She claims she did not know what her husband was worth — neither did she make inquiry.”
So here, Mrs. Beat testified:
“I never asked him, and he never told me.”

In Oesau v. Estate of Oesau, the wife could neither read nor understand English. The attorney tried to explain the agreement as best as possible in her native tongue, but she did not understand completely. This agreement was upheld.

There is no affirmative evidence of any misrepresentation on Beat’s part or of any coercion or duress exerted on Mrs. Beat in connection with the signing. The evidence shows acquiescence and consent on Mrs. Beat’s part. Under the circumstances, Mrs. Beat cannot agree, then remain silent for three years, and now claim that she was defrauded.

In the final analysis, the trial court reasoned here that there was overreaching because Beat’s release of rights in her estate amounted to nothing, as she could have effectively-disposed of her property without his promise. Appellants contend that because the statute that was in effect on the date of the contract precluded the wife from- disposing of the husband’s curtesy right by will, Beat did release something of value. This section, however, became law after the contract on July 1, 1959, and remained on the books for only two days before its effective date was postponed until July 1, 1961. At the time of the signing of the agreement, a wife could dispose of land so as to bar curtesy rights.

However, the court’s contention in regard to the curtesy statute was met in Nickolay, supra, when -the court, in interpreting the pre-1947 statute, said:

“The contention that the husband released nothing by releasing any interest in her estate because he was not entitled to a curtesy right, as there were children by her former marriage, is not a sound argument because a curtesy right of the husband is under the absolute control of the legislature and changes in this law have been made in the past and can well be made in the future. It was at least a definite protection to the wife and her children in the event this law was changed. Any subsequent legislation could not impair the obligation of the contract by giving him a right to share in her estate. 137 A. L. R. p. 1099. Where both parties have property and the agreement provides that each shall retain the individual possession with all rights the same as if unmarried, that is sufficient.”

Even though Mrs. Beat did not contract to receive the $500 payment that was made to the widow in Nickolay and in Bibelhausen, there was consideration flowing both ways so as to save the agreement as against a challenge for lack of or inadequate consideration. As in Nickolay:

“Where both parties have property and the agreement provides that each shall retain the individual possession with all rights the same as if unmarried, that is sufficient.”

We are satisfied that the great weight and clear preponderance of the evidence does not show overreaching tantamount to fraud and that the agreement is not invalid.

Marriages like the present one are prompted more by a need for companionship than by love and affection. Both Mr. and Mrs. Beat had grown children and substantial property holdings. That he was willing to adequately provide for his new wife is evidenced by the trips they took, gifts, and the remodeling of the apartment. A father’s desire to take care of his own children before providing for a new wife is not unhealthy. Especially is this true when the second marriage takes place after his fortune is amassed. Mrs. Beat was benefited in that she lived more comfortably after the marriage than she would have as a widow. She had ample time to read the agreement and make any objections known. In this case there is not sufficient evidence nor good reason to invalidate the agreement.

Widow’s Power to Elect Against Postnuptial Agreement.

The trial court found that even if the agreement is valid, the widow may nonetheless elect to take her share under the law. Sec. 233.12, Stats., provides:

“233.12 Widow to make ELECTION. If any such jointure or pecuniary provision be made before marriage and without the assent of the intended wife, or if it be made after marriage, she shall make her election after the death of her husband whether she will take such jointure or pecuniary provision or the share of his estate hereinafter provided.” (Emphasis added.)

Whether a widow may make an election under this statute turns in part upon whether a postnuptial agreement is a “jointure or pecuniary provision,” and also on the effect of the enactment of sec. 6.015, Stats., in 1921, entitled “Women to have equal rights.”

Jointure is a historical animal, now extinct, whose vestiges clutter the statute book like bones in a museum to remind us of an age gone by. Under early English common law, most land was held under uses. A widow could not have dower in such lands because dower only applied to fee titles. A husband then transferred an interest in his land to himself and his intended in joint tenancy or “jointure” to protect the wife in case of his death. After the statute of uses, the wife could also have dower in such land. Ancestors to sec. 233.12, Stats., were adopted to prevent the double benefit inuring to her. Thus the wife had to choose between her jointure and her dower. Clearly a postnuptial agreement is not a jointure.

The “pecuniary provision” referred to in sec. 233.12, Stats., was to “be made for the benefit of an intended wife and in lieu of dower.” This was a twin to the jointure provision. A groom, because dower would not attach to uses, provided for his bride (often at the insistence of the bride’s father and before marriage) in a way other than giving her an interest in his lands. After the statute of uses, the wife was prevented from having the pecuniary provision and dower by the election feature of the forerunner of sec. 233.12. Plistorically, a “pecuniary provision” would not seem to envision a postnuptial agreement. The pecuniary provision was given to the wife to safeguard her; she did nothing in return. A postnuptial agreement on the other hand is not designed for the wife’s protection, but generally for the husband’s. The wife must give a release in return.

Although from the standpoint of history, a postnuptial agreement would appear not to be a “pecuniary provision,” this court has found, we think, erroneously, to the contrary. Thus before Estate of Nickolay, a postnuptial agreement was not an absolute bar to dower. Nickolay, however, without mentioning Rowell, Wilber, or sec. 233.12, Stats, (the election statute was not even mentioned in the Nickolay briefs) denied the right of election to a widow and upheld a postnuptial agreement. The validity of the agreement in Nickolay was based on sec. 6.015, which gave women the power to contract. Thus, the court stated (at p. 576) :

“While the statute provides for a widow’s right to dower in her husband’s estate, sec. 233.01, Stats., likewise provision is made for a husband’s curtesy right in the wife’s estate, sec. 233.23. But this does not mean that the legislature may not authorize either party to contract relative to these rights. This is a question of policy for the legislature and the legislature has spoken. In Wait v. Pierce (1926), 191 Wis. 202, 210, 209 N. W. 475, 210 N. W. 822, it was said:
“ ‘It seems too clear for argument that sec. 6.015 further modified the rights of husband and wife as they existed at common law and that it was designed to place them on a basis of equality before the law not only in the particulars mentioned but “in all other respects.” ’
“In First Wisconsin Nat. Bank v. Jahn (1922), 179 Wis. 117, 125, 190 N. W. 822, it was said, with reference to sec. 6.015, Stats., that—
“ ‘it means what it says, and that is that women shall be as free as men to make personal contracts.’
“This has been the law of this state for a number of years, and the legislature has not seen fit to change it.”

The policy embraced by this section conflicts with sec. 233.12, Stats.: Women’s right to .freedom of contract versus protection afforded to her as a widow.

The general circumstances and objective of a postnuptial agreement have been described:

“Generally, the typical situation in which a postnuptial contract is used involves parties who have previously been married; each has children by a former marriage; at the time of their marriage each possesses real and personal property not acquired or obtained from or through the other; and each party wants his or her property to pass to his or her heirs. In this situation, wherein both parties mutually agree to release their claims in the estate of the other, there seems to be no good reason why the postnuptial contract should not be sustained.”

Where a postnuptial agreement has been executed by the parties, which is free of fraud or overreaching by the husband as against his wife, a widow who enters into such a valid agreement should not be permitted to elect under sec. 233.12, Stats. It is inimical to give her the power to contract on the same par with men and then let her exercise her woman’s prerogative of changing her mind, which men cannot do. Women fought long and hard to acquire their right to “freedom of contract” as incorporated in sec. 6.015. With this additional recognition they must expect to lose some of the special protections built into the law. In upholding the validity of this particular postnuptial agreement we are embracing a policy that favors marriage and works for its stability.

The Widow’s Allowance.

A further issue on this appeal concerns the order of January 24, 1964, which continued the widow’s allowance of $300 a month, initially approved on September 28, 1962, for no longer than a year without a further order. No objection was made to the first order, but there was objection to the second.

The appeal on this issue stands or falls on the validity of the agreement and on the specific terms of that agreement. Appellants argue that when Mrs. Beat “waive [d] any and all of her dower and any other rights to any property, both real and personal” she was barred from taking an allowance under Deller v. Deller, In that case the court ruled out an allowance where the widow, in an antenuptial agreement, had agreed to take $5,000 out of her spouse’s estate for her sole use and benefit “in lieu of all right, title, and interest which she would have by law in the said estate” and further agreed that she would not make any claim for any share in his “personal estate.”

Deller is distinguishable. When Mrs. Beat gave a valid release of any claim to all property, personal as well as real, the release was only as to property “owned by Roy Beat at the time of their marriage.” She did not release his “estate.” A widow’s allowance is an interest which by law a widow has in the estate of her husband but it is not a right to property, whether real or personal, owned by the spouse at the time of marriage. Nothing in Deller or the agreement here requires that an allowance be denied to Mrs. Beat. We conclude that the trial court was correct in allowing the continuation of the widow’s allowance to Mrs. Beat beyond the year concerning which there was no dispute.

Further Proceedings.

Mrs. Beat waived all rights to property “owned by Roy Beat at the time of their marriage.” There is no mention of waiver as to any property which might be acquired thereafter. Appellants and respondent agree that if the agreement is valid and election not permitted, there must be a factual determination of what property was owned by Beat at the time of wedding. We agree.

By the Court. — Order continuing widow’s allowance affirmed; judgment setting aside postnuptial agreement reversed, and cause remanded for proceedings not inconsistent with this opinion; costs on this appeal to appellants.

        Estate of Nickolay (1946), 249 Wis. 571, 25 N. W. (2d) 451; Estate of Cortte (1939), 230 Wis. 103, 283 N. W. 336. Earlier decisions held such agreements to be void: LeSaulnier v. Krueger (1893), 85 Wis. 214, 54 N. W. 774; Leach v. Leach (1886), 65 Wis. 284, 26 N. W. 754; Wilber v. Wilber (1881), 52 Wis. 298, 9 N. W. 163.

        Estate of Perssion (1963), 20 Wis. (2d) 537, 123 N. W. (2d) 465; Estate of Starer (1963), 20 Wis. (2d) 268, 121 N. W. (2d) 872; Clark v. Moru (1963), 19 Wis. (2d) 503, 120 N. W. (2d) 888.

        Estate of Koeffler (1934), 215 Wis. 115, 254 N. W. 363.

        Bibelhausen v. Bibelhausen (1915), 159 Wis. 365, 150 N. W. 516. This is an antenuptial case, but the rules of law are applicable to postnuptial situations. Oesau v. Estate of Oesau (1914), 157 Wis. 255, 147 N. W. 62. See Estate of Nickolay, supra, footnote 1.

        Estate of Nickolay, supra, footnote 1; Oesau v. Estate of Oesau, supra, footnote 4.

        Estate of Knippel (1959), 7 Wis. (2d) 335, 96 N. W. (2d) 514; Estate of Nickolay, supra, footnote 1; Estate of Koeffler, supra, footnote 3.

       A factor relied on in Nickolay, supra, footnote 1, and Oesau, supra, footnote 4, in sustaining postnuptial and antenuptial agreements respectively.

       Ibid.

        Supra, footnote 6.

        Supra, footnote 1.

        Estate of Nickolay, supra, 249 Wis. at page 574, footnote 1.

        Supra, footnote 4.

       Ch. 705, Laws of 1957.

       Ch. 165, Laws of 1959.

        Nickolay, supra, 249 Wis. at page 574, 25 N. W. (2d) at page 453, footnote 1.

        Supra, footnote 4.

         Nickolay, supra, 249 Wis. at page 574, 25 N. W. (2d) at page 453, footnote 1.

       “6.015 Women to have equal rights. (1) Women shall have the same rights and privileges under the law as men in the exercise of suffrage, freedom of contract, choice of residence for voting purposes, jury service, holding office, holding and conveying property, care and custody of children, and in all other respects. The various courts, executive and administrative officers shall construe the statutes where the masculine gender is used to include the feminine gender unless such construction will deny to females the special protection and privileges which they now enjoy for the general welfare. The courts, executive and administrative officers shall make all necessary rules and provisions to carry out the intent and purposes of this statute.”

       Sec. 233.11, Stats.

        Rowell v. Barber (1910), 142 Wis. 304, 125 N. W. 937; Wilber v. Wilber, supra, footnote 1.

        Supra, footnote 1.

       See Mr. Justice Brown’s dissent in Fricke v. Fricke (1950), 257 Wis. 124, 42 N. W. (2d) 500.

       Comment, 1960 Wisconsin Law Review, 91, 120.

       (1910), 141 Wis. 255, 124 N. W. 278.

       Id. at page 257, 124 N. W. at page 279.


author: Heffernan, J.

text:
    Estate of Astrach: Astrach, Appellant, v. First National Bank of Ripon, Administrator w.w.a., Respondent.

      September 30

    October 27, 1964.

      For the appellant there was a brief and oral argument by Eugene A. Bitters of Ripon.
    For the respondent there was a brief by Clark M. Robertson and H. Maxwell Manser, both of Ripon, and oral argument by Mr. Manser.

   Heffernan, J.

The record is replete with evidence of controversy and discord, and unsubstantiated accusations. The notice of appeal itself bears testimony to the spirit of acrimony pervading the entire proceedings.

The following quotations from the notice of appeal are sufficient to apprise one of the spirit in which these proceedings were conducted:

“Appeal is also taken from the Administrator’s whitewash of actions and transactions completed by Oliver Disotel without authority, . . .”
“PLEASE TAKE NOTICE, That Sharon Astrack [sic], a primary beneficiary in the above mentioned estate, hereby appeals to the Supreme Court of Wisconsin from all rulings, decisions, and proceedings of the above mentioned court which were prejudicial and inimical to the best interest of the three beneficiaries in this estate, and especially from the final judgment rendered by the above named court herein and entered on the 30th day of January, 1964, and from the portion thereof wherein the court determined, . . .”

The brief submitted by counsel for the appellant contains numerous assertions that are not supported by the record. Typical are these:

“The corporate fiduciary had little interest in serving the estate beneficiaries, . . .”
“With the appointment of a corporate fiduciary, the interests of the insignificant Astrach grandchildren were lost in the interplay of interests of third parties.”
“. . . the bank resisted all effort of the appellant to be kept informed of offers to purchase ...”
“. . . the bank, in fact, represented other interests than the estate and did everything possible to harass the beneficiaries and kept them from any participation in the probate proceedings with an effort to diminish the entire estate to leave nothing for distribution.”
“. . . the interests of the bank were not those of the estate and its beneficiaries but instead were aligned with the interests of third parties who sought to dispose of all the estate’s property to the exclusion of the testator’s grandchildren.”

None of these statements have any substantial foundation in the record before the court. They are evidence, however, of the difficulties confronting the attorney and administrator de bonis non.

The brief of appellant’s counsel abounds with similar charges of dubious foundation, all or most of which are either irrelevant or have not been documented in a manner that they are properly cognizable by this court.

While the appellant’s brief indicates objections made in broadside to all the proceedings in the probate court, it appears that the appeal is directed to the order wherein the court determined:

“It is further adjudged and decreed that all accounts of the administrator on file herein are allowed.”

The appellant in her notice of appeal lists some 16 items which she claims were improperly allowed. It should be noted that the notice of appeal is the first objection the appellant made to these items. Sec. 317.15, Stats., provides:

“Any person interested may file objections to any item of the account of the executor or administrator or that property has been omitted which the executor or administrator ought to account for. . . .”

The record also shows that the attorney for the appellant waived notice for the hearing on the fiduciary account at least ten days before the hearing. No objection was filed despite the invitation of the trial judge to counsel for the appellant to do so. Not only does the statute above contemplate formal objections, but the general rule of law requires the filing of objections.

“If a person interested in an estate wishes to contest an account presented for settlement by the executor or administrator, he must make proper objections and take proper exceptions.” 34 C. J. S., Executors and Administrators, p. 1065, sec. 883.
“Objections or exceptions to the personal representative’s account must be seasonably made or filed.” 34 C. J. S., Executors and Administrators, p. 1069, sec. 885.

No objections were ever filed and we cannot say that the directionless and amorphous examination of the administrator de bonis non constituted such objections. No objections, as contemplated by the statute, were either expressed in open court or filed. We therefore conclude that the objections itemized in the notice of appeal were not timely made and are not properly before the court at this time.

However, in the course of the hearing, the attorney for the appellant did pose some questions in regard to the fees allowed the attorney and the administrator of the estate. Despite the fact that no proper objection was made to the allowance of these fees, we allude to them because at first blush they seem somewhat high considering the gross amount involved in the estate. However, this court will not second-guess the sound discretion of the probate judge. It has long been our position that the approval of fees by the trial court would not be set aside in the absence of an abuse of discretion. Estate of Marotz (1953), 263 Wis. 99, 56 N. W. (2d) 856, and Will of Rosnow (1956), 273 Wis. 438, 78 N. W. (2d) 750. Here there is every evidence that the trial judge was fully cognizant of the history of this case and the unusual difficulties that confronted both the attorney and the administrator. The trial judge specifically found the fees of the attorney to be reasonable, and as to the fees of the administrator de bonis non, he stated:

“The fees, if anything, allowed to the personal representative as set forth in the final account are moderate and far below actually what the court reasonably could offer or allow, under the circumstances.”

The record reveals the court's thorough familiarity with all phases of the administration of this estate. It was apparent to the lower court, as it is to us on review, that almost everything the administrator de bonis non and its attorney attempted to do was senselessly objected to. What might have been a routine and expeditiously settled estate was converted into a protracted legal wrangle, arising for the most part out of specious charges and vague innuendoes. We see no abuse of discretion by the trial judge in finding that both the administrator de bonis non and its attorney were entitled to compensation for extraordinary services.

As we have said recently in Estate of Ehlen (1963), 18 Wis. (2d) 400, 406, 118 N. W. (2d) 877:

“. . . the trial court is to be sustained in its allowance of fees for administrator and attorney, unless such allowance is clearly unreasonable. [Citing cases.] ”

This position was strongly stated in Sloan v. Duffy (1903), 117 Wis. 480, 485, 94 N. W. 342, when we said:

“The amount which could be justly allowed was a matter required to be determined by the trial judge upon the evidence. In the exercise of his authority in that regard he possessed very broad discretionary powers.”

In the case now before the court it is clear that the court not only did not abuse its discretion but exercised that discretion on the basis of protracted and patient familiarity with the entire proceedings. There is nothing before this court to indicate that the fees allowed the executor and attorney are excessive. There is much to show that their task was made unusually onerous and difficult.

As to the other items in the account which the appellant objects to now, the record is barren of any proper objection to them or of any evidence that would make their allowance improper.

Therefore, the order allowing the final account of the administrator de bonis non and judgment entered therein are affirmed.

By the Court.- — -Judgment affirmed.


text:
    Raszeja, Appellant, v. Brozek Heating & Sheet Metal Corporation and another, Respondents.

      September 30

    October 27, 1964.

      For the appellant there were briefs by Goldberg, Previant & Uelmen of Milwaukee, and oral argument by Albert J. Goldberg.

    For the respondents there was a brief by Moore & Moore of Milwaukee, and oral argument by Raymond J. Moore.

   Beilfuss, J.

The plaintiff contends that it was error to submit questions as to contributory negligence and cause on the part of the plaintiff and that if he was guilty of contributory negligence it could not have been as great a contributing factor to his injuries as the causal negligence of defendants. He asks for a new trial in the interests of justice.

Contributory Negligence of the Plaintiff.

The first five questions of the special verdict and the jury’s answers are as follows:

“Question No. 1: Were Donovan Nelson and Kenneth E. Roberts negligent in the unloading of the crates in the truck at the time and place in question ? Answer: Yes.
“Question No. 2: If your answer to Question No. 1 is ‘Yes’, then answer this question: Was such negligence a cause of the plaintiff’s injury? Answer: Yes.
“Question No. 3: Was the plaintiff, Stanley Raszeja, negligent in the unloading of the crates in the truck at the time and place in question ? Answer: Yes.
“Question No. 4: If your answer to Question No. 3 is ‘Yes’, then answer this question: Was such negligence a cause of the plaintiff’s injury? Answer: Yes.
“Question No. 5: If your answer to all of the preceding questions is ‘Yes’, then only answer this question: Taking tíre combined negligence which produced the injury as 100%, what percentage of such negligence is attributable to:
“(a) Donovan Nelson and Kenneth E. Roberts? Answer : 40.
“(b) Plaintiff, Stanley Raszeja? Answer: 60.”

The plaintiff objected to the inclusion of questions No. 3, 4 and 5 upon the ground that the defendants produced no credible evidence to sustain a finding of negligence on the part of the plaintiff. This motion was overruled by the trial court.

The test is not whether the defendants introduced credible evidence to warrant a finding of causal negligence on the part of the plaintiff but rather whether there is any credible evidence before the jury upon which such finding could be based.

We are of the opinion that there is credible evidence in the record which if believed by the jury, together with reasonable inferences, does sustain a finding of causal negligence on the part of the plaintiff.

The only instruction given to the jury (with the approval of the parties) as to the duties of the respective parties was the general definition of negligence taken from Wis J I — Civil, Part I, 1005. The instruction is as follows:

“A person is negligent when he fails to exercise ordinary care. Ordinary care is the degree of care which the great mass of mankind ordinarily exercises under the same or similar 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. (Negligence may also be said to mean a want of, or failure to exercise, that care and caution which a person of ordinary intelligence and prudence usually exercises in a like or similar situation, work, or operation, under like or similar circumstances.)”

The parties did stipulate and agree that the form of the questions in the verdict and a single instruction defining negligence were proper and sufficient.

The plaintiff upon appeal does not complain as to the form or sufficiency of the verdict and instructions nor could he be heard to do so by virtue of his stipulation. Timely requests would have warranted more-detailed instructions as to plaintiff’s duty to exercise reasonable care for his own safety, a duty to warn of known danger or risk of injury and corresponding duties of Brozek’s employees to use reasonable care not to act so as to injure the plaintiff in view of circumstances which were known or should have been known to them.

The jury could properly find Brozek’s employees negligent in the manner in which they unloaded the crate. The size, shape, and weight of the crate, the manner in which it was being lowered and the position and actions of the plaintiff were such that the jury could conclude that as ordinarily reasonably prudent persons they should foresee that dropping the crate in the manner described could injure the plaintiff and that ordinary care required them not to drop the crate.

The plaintiff likewise had a duty to exercise reasonable care for his own safety. The jury could find that because of the same factors as to size and weight of the box and the manner in which it was being unloaded, and his participation with one partially disabled arm, that he as an ordinarily reasonable and prudent person could foresee a substantial risk of injury to himself and that ordinary care required he remove himself from this position of danger, or take steps to protect himself.

In addition thereto it appears without dispute that plaintiff used his right arm only to bear the weight and his left arm only to guide the crate. He did not inform Brozek’s employees of any limitation in the use of his left arm before the unloading of the first upper crate. He testified that he did warn them of this condition and the strain to his right arm before the second upper crate was unloaded. Brozek’s employees both denied he gave any such warning. The jury was entitled to accept the testimony of Brozek’s employees.

From the plaintiff’s description of the sensation to his arm, it appears he noticed an abnormal strain on his right arm while unloading the first crate. It further appears highly probable, if not certain, that the injury occurred in unloading the second crate. If the jury believed that he did not warn the other two men of the condition of his left arm and the strain he felt while unloading the crate, they could find that engaging in the same activity a second time was negligence and a cause of his injury. The jury could also consider that plaintiff did remove himself from this position of danger in unloading the third and fourth upper crates.

We agree with the trial court that the jury could find that plaintiff was negligent in unloading the crates and that his negligence was a cause of his injuries.

Comparison of Negligence.

The jury apportioned 60 percent of the causal negligence to plaintiff and 40 percent to Brozek’s employees. The plaintiff contends that as a matter of law the causal negligence of Brozek’s employees was greater than his.

He argues that the defendants’ negligence was active and his negligence, if any, was only passive. He urges that passive negligence cannot constitute as great a proportion of the total causal negligence as active negligence.

In McConville v. State Farm Mut. Automobile Ins. Co. (1962), 15 Wis. (2d) 374, 113 N. W. (2d) 14, this court adopted the rule that conduct of a guest in an automobile accident formerly considered assumption of risk may be classified as contributory negligence and subject to the comparative-negligence statute. Theisen v. Milwaukee Automobile Mut. Ins. Co. (1962), 18 Wis. (2d) 91, 118 N. W. (2d) 140, 119 N. W. (2d) 393, another auto-guest case, followed McConville. In Theisen it was pointed out that entering a car knowing of a hazard may be a failure to exercise ordinary care for his safety on the part of a guest and, as such, passive negligence which might be a .cause of the guest’s injuries but not a cause of the accident. The guest could also be actively negligent in other respects which would be a cause of the accident.

In both verdict questions, 2 and 4, the inquiry- was as to cause of the injuries of the plaintiff and not the causé of the accident.

While the failure of the plaintiff to exercise ordinary care for his own safety in some of its aspects could be considered passive negligence under the rationale of the McConville and Theisen Cases, supra, the facts of this case justify a finding of active negligence.

A permissible basis of comparison of causal negligence is a contrast between the risk of injury created by the plaintiff and that negligently assumed — an evaluation of his active and passive negligence as contrasted to the negligence of the defendants. The plaintiff, in this instance, physically participated in the movement of a heavy object capable of inflicting injury if improperly handled. There was a conflict in the testimony as to whether he warned Brozek’s employees of his physical handicap and whether they knew he was using only one arm in their joint effort to move and support the weight of this heavy crate. The jury could believe that plaintiff did not warn Brozek’s employees of his limitations and that his failure in this regard subjected him to a greater probability of injury to himself than Brozek’s employees could reasonably anticipate. The jury could further consider that in unloading the first upper crate he was positively made aware of the danger and that in spite of this knowledge he again actively and physically participated in an identical manner in moving the second crate.

The comparison of causal negligence is peculiarly within the jury’s province and its finding is not to be disturbed if it is based on any reasonable view of the credible evidence. We cannot, in this instance, conclude as a matter of law that causal negligence of the plaintiff was less than that of the Brozek employees.

By the Court. — Judgment affirmed.

Wilkie, J.

{dissenting). The first difficulty I have with the majority opinion is in finding any negligence on the part of the plaintiff. Granted, the plaintiff had a duty to exercise reasonable care for his own safety. Although the plaintiff’s left arm was disabled there is no evidence in the record to show that it was useless. Under the circumstances I find no duty on the part of the plaintiff (1) to refrain from participating in the unloading operation with his partially disabled left arm, or (2) to notify the other two men of this disability before the first crate was unloaded. The majority finds a further duty requiring the plaintiff to tell the two men before the second crate was unloaded of the strain to his right arm that he experienced during the unloading of the first crate. No authority is cited impressing any such duty on the plaintiff. I find none. To require a person in the situation in which the plaintiff found himself to complain to his fellow workers of each ache or pain as it arose during the process of a continuous unloading operation would impose an impractical, unrealistic, and unreasonable burden. I find no such duty here.

Even assuming that the plaintiff may have had a duty, either to refrain from participating in the unloading operation or to tell the other men of his handicap or of the strain occurring during the unloading of the first crate, in my review of the record I find no evidence to support a determination that the plaintiff’s injuries were really caused by any alleged failure to meet any of these duties. Any jury finding of negligence on the part of the plaintiff and any finding of causal connection with plaintiff’s injury to his right arm, must have been based on conjecture and speculation. Many cases have held that a verdict so founded must fail.

The second difficulty I have with the majority opinion is in its affirmance of the trial court’s decision affirming the jury verdict assessing plaintiff with 60 percent of the causal negligence while assessing the other workers with only 40 percent. It is true that this court generally regards the apportionment of negligence as a jury matter, but there are exceptions and I believe that this is such a case. In my view the defendants would have to be at least as negligent as the plaintiff.

I would reverse, find no negligence on plaintiff, and enter judgment for plaintiff; or at least I would reverse and exercise our discretion under sec. 251.09, Stats., and order a new trial.

I have, been authorized to state that Mr. Justice Gordon joins in this dissent.

        Arledge v. Scherer Freight Lines, Inc. (1955), 269 Wis. 142, 68 N. W. (2d) 821; Chaimson v. American R. Express Co. (1922), 178 Wis. 286, 189 N. W. 529, and cases cited therein.

        Zenner v. Chicago, St. P., M. & O. R. Co. (1935), 219 Wis. 124, 262 N. W. 581.

        Home Fire & Marine Ins. Co. v. Farmers Mut. Automobile Ins. Co. (1956), 274 Wis. 210, 79 N. W. (2d) 834; Zenner v. Chicago, St. P., M. & O. R. Co., supra, footnote 2, and cases cited therein.