author: Fairchild, J.

text:
    Lemke, Respondent, v. Guse and another, Appellants.

      November 23, 1964 —
    January 5, 1965.

      For the appellants there was a brief by John H. Regan of Milwaukee, attorney, and James A. Fitzpatrick of Water-town of counsel, and oral argument by Mr. Fitzpatrick.

    For the respondent there was a brief by Habush, Gillick & Habush, attorneys, and Robert L. Habush of counsel, all of Milwaukee, and oral argument by Robert L. Habush.

   Fairchild, J.

Defendants contend (1) there was insufficient evidence to support a finding that Miss Guse was negligent, and (2) if she was negligent, the evidence would not support a verdict attributing 65 percent of the causal negligence to her.

“When a jury verdict is attacked we inquire only whether there is any credible evidence that, under any reasonable view, supports the verdict.”
“In the great majority of automobile accident cases the comparison of negligence is for the jury, and the instances in which a court can rule as a matter of law that the negligence of a plaintiff equaled or exceeded that of a defendant are extremely rare.”

Miss Guse’s negligence. Lemke testified that the left side of Miss Guse’s car was about three feet from the fronts of the cars parked just north of the driving space where the collision occurred. There was evidence that she had said before trial that she was about three to four feet south of the parked cars. Although there was other testimony at the trial indicating that she drove somewhat farther to her right, the jury was not obliged to accept it. The estimates of width of this driving space varied from 35 to 45 feet. It has been argued that her intended turn to the right would prevent her from traveling at the extreme right as she approached the stall into which she would turn. Nevertheless, the jury could properly find that she drove unnecessarily close to the left side of the driving space and blocked Lemke’s normal path.

It is true that certain rules of the road in ch. 346, Stats., requiring operation of vehicles to the right on highways, e.g., secs. 346.05, 346.06, and 346.09, do not apply to conduct on a private parking lot. The jury could, however, properly consider customs generally observed in deciding what would constitute ordinary care under the circumstances. It was within the province of the jury to determine whether it was negligence for Miss Guse to drive as far to the left as she did.

The go-cart was a tubular frame cart about six and one-half or seven feet long, two to four inches off the ground. The parked cars obstructed Miss Guse’s view of Lemke, and his of her, until about the time he came into the southernmost east-west driving space. There was testimony, however, that the go-cart motor emitted a very loud noise. One witness heard the cart approaching as he walked toward the plant, and turned to watch. There was conflicting testimony as to whether or not any windows of Miss Guse’s car were open. The jury could have determined that the noise gave a warning which Miss Guse should have heard and heeded.

Comparison with Lemke’s negligence. The go-cart had a top speed of 30 to 35 miles per hour. The company was apparently interested in determining the endurance of the mountings of the engine when subjected to vibration. Before the day of the collision, Lemke had been test-driving on another lot, but it had been graded. Because it was too smooth, he had been instructed to drive on the lot where the collision occurred. He 'was told to get the cart up to full speed wherever permissible.

His hours were from 4 a. m. to 1 p. m. Other employees continued testing thereafter. The shop employees started work at 7 a. m. and the office employees at 8. Lemke testified that the former arrived between 6:30 and 6:50 and the latter between 7:30 and 7:50. He said he was instructed on each occasion that he was to wait “until practically all the people who were coming were there, and then continue my testing.” His supervisor testified he told Lemke that “from 6:30 until after 8 he should make sure not to go into the south end.” The supervisor had, however, made a report of the accident in which he wrote that Lemke “was told to stay out of the parking areas when the cars started arriving at 6:30 a. m. and shortly before 8 a. m.” The testimony placed the collision at 7:45 a. m. or shortly after 7:50,a. m. Evidently Lemke considered that the bulk of the office employees had arrived before he resumed driving, and that resumption was consistent with his instructions.

He testified that as he turned from the north-south lane into the east-west driving space, his speed was five to 10 miles per hour. Whatever his speed, it was too great to permit him to stop in time after seeing that a car obstructed his path. The jury presumably considered him negligent in proceeding at that speed when he was aware that some of the office employees might still arrive and that he could not see them or they him until he got around the end of the row of parked cars.

Although he had been told to be careful, the purpose of his job was apparently to put mileage on the carts as fast as possible. The decision to operate this type of low cart in a parking lot filled with full-sized automobiles was his employer’s, not his. Under the circumstances, we do not conclude, as a matter of law, that his negligence equaled or exceeded that of Miss Guse.

By the Court. — Judgment affirmed.

        Cheetham v. Piggly Wiggly Madison Co. (1964), 24 Wis. (2d) 286, 290, 128 N. W. (2d) 400.

         Baumgarten v. Jones (1963), 21 Wis. (2d) 467, 471, 124 N. W. (2d) 609.


source: Caselaw Access Project

author: Hallows, J.

license: Public Domain

text:
    Estate of Rich: Mahoney, Appellant, v. Rich, Administratrix, Respondent.

      November 23, 1964 —
    January 5, 1965.

      For the appellant there was a brief by Anderson, Bylsma & Eisenberg of Madison, and oral argument by Clarence G, Bylsma.

    For the respondent there was a brief by Herbert Morse, attorney, and Jerry A. Fine of counsel, both of Milwaukee, and oral argument by Mr. Morse.

   Hallows, J.

The only issue presented on appeal is whether the trial court’s findings are against the great weight and clear preponderance of the evidence; if they are not, the judgment must be affirmed. Estate of Starer (1963), 20 Wis. (2d) 268, 121 N. W. (2d) 872. This case rests ultimately upon the credibility of the witnesses, and since it was tried to the court it is the province of the trial judge to determine the credibility and weight of the evidence. Estate of Brandenburg (1961), 13 Wis. (2d) 217, 225, 108 N. W. (2d) 374; Guardianship of Coolidge (1960), 12 Wis. (2d) 58, 64, 106 N. W. (2d) 282.

In its decision the trial court characterized the appellant as a “prevaricator unworthy of belief,” and this opinion is based in part upon the fact the will offered by the appéllant and which she claimed was given to her by her brother was rather convincingly proven by an expert witness to have been typewritten over the signature of the decedent and after the signature had been placed thereon. While the will could have been refused probate because not properly witnessed and executed, nevertheless the facts relating to the typing of the purported will and the facts hereinafter stated in reference to the purported $12,000 check are entirely sufficient to sustain the court in its disbelief of the uncorroborated testimony of the appellant. Once a witness has testified falsely in a material respect the trier of the fact may, but is not compelled to disregard all of that witness’ testimony which is not corroborated. Nehls v. Nehls (1963), 21 Wis. (2d) 231, 124 N. W. (2d) 18; Grosberg v. Grosberg (1955), 269 Wis. 165, 68 N. W. (2d) 725. Without the testimony of the appellant there is little or no proof to substantiate the claims.

The appellant testified the loan of $12,000 was .made on February 22, 1924, at decedent’s request so he could purchase' a controlling interest in the Fairmount Riding Academy in Milwaukee, Wisconsin. Her testimony is contradictory in respect to the making of this loan on a legal holiday, as to the bank or banks from which she withdrew the money, and in other respects. The principal evidentiary basis of the appellant’s claim is a check purportedly for $12,000 which the appellant testified was given her by her brother to evidence the loan. While the record is somewhat confused on when the appellant received this check and the purpose of the loan, the record is clear from the testimony of one Donald Doud, a questioned-document expert, the check was originally a $12 check which had been unartfully raised to $12,000 and that Dr. Rich had not raised it. This expert testimony, based on the use of enlarged photographs, analysis of penmanship idiosyncrasies, and analysis of the types of leads in the pencils used to execute the check, stands un-refuted in the record, although the appellant did testify she did not raise the check. The trial court had a right to disbelieve the appellant’s testimony that a loan for $12,000 was in fact made.

If, however, the trial court were required to believe the loan was made in 1924, recovery is barred by the six-year statute of limitations.. Sec. 330.19 (3), Stats. The appellant testified her brother paid her $100 in December of 1957 on this loan and contends this payment renewed the obligation and took it out of the statute. The great weight and clear preponderance of the evidence, as the trial court found, is to the effect this payment if made had no relationship to the alleged loan but the $100 was given to the appellant by Dr. Rich so that she might send it on to their needy brother George. No evidence tends to show Dr. Rich had any intention of recognizing the debt as an existing liability or of indicating any willingness to pay the balance. Unless these elements are shown, a partial repayment of a debt barred by the statute of limitations does not resurrect the defunct debt. Estate of Hocking (1958), 3 Wis. (2d) 79, 86, 87 N. W. (2d) 811; Estate of Shea (1929), 198 Wis. 613, 225 N. W. 326.

The appellant claims the notation on a $100 bank money-order receipt made by her at the time of the transaction to the effect the $100 was a payment by Dr. Rich on his debt is sufficient to renew the obligation. If such notation can be considered an acknowledgment or promise, it is insufficient under sec. 330.42, Stats., because the writing is not signed by Dr. Rich, the party to be charged thereby as required by that section. Nor can such notation be considered proof of the payment by Dr. Rich to the appellant because sec. 330.46, expressly provides that an indorsement or memorandum of a payment upon a note or other writing by the party to whom such payment shall have been made or purported to be made shall not be deemed sufficient proof of the payment to take it out of the statute of limitations.

There is no question the principal amount of the $10,000 mortgage loan was paid and in addition some $2,578.50 interest. In the appellant’s brief it is argued Dr. Rich held the interest in a constructive trust, that there were sufficient assets in the estate to pay it, and no good reason appeared other than the satisfaction why interest should not be allowed on this mortgage. We consider the giving of the satisfaction of the mortgage to be sufficient reason for the trial court’s denying interest. It was testified by the attorney that various payments on the mortgage loan were made a.nd on January 24, 1944, the appellant executed a partial release of the mortgage which recited there was a balance due of $4,000 with interest at four percent from January 24, 1944. Some eighteen months later on July 23, 1945, the appellant executed and delivered a full satisfaction and discharge of the mortgage upon the payment of a sum somewhat in excess of $4,000. At that time the appellant raised a question of interest with the attorney representing Dr. Rich. However, appellant accepted the check, gave the satisfaction of the mortgage, and made no further demands for interest until the filing of the claim in the estate over sixteen years later.

We do not agree with the appellant this is a proper case for a constructive trust. The facts give rise to no more than a debtor-creditor relationship upon security between a brother and his sister. Dr. Rich stood in no fiduciary or trust relationship to the appellant. The evidence is to the effect the claim for principal and interest was fully satisfied when the appellant executed and delivered the satisfaction and release in 1945. In any event, any claim for interest existing in 1945 would long since be barred by the statute of limitations.

By the Court.- — Judgment affirmed.

Wilkie, J., took no part.


author: Gordon, J.

text:
    Tanberg, Appellant, v. Rydberg, Respondent.

      November 23, 1964 —
    January 5, 1965.

      For the appellant there was a brief and oral argument by Frank E. Bets and William A. Adler, both of Eau Claire.
    For the respondent there was a brief by Gannon & Gannon of Rice Lake, and Doar & Knowles of New Richmond, and oral argument by James A. Drill of New. Richmond.
   Gordon, J.

“Standards of prudent conduct,” said Mr. Justice Cardozo, “are declared at times by courts, but they are taken over from the facts of life.” Pokora v. Wabash R. Co. (1934), 292 U. S. 98, 104, 54 Sup. Ct. 580, 78 L. Ed. 1149. Thus, when a jury determines that given conduct either does or does not meet a “standard of prudence,” its finding is obviously entitled to significant weight.

In the instant case, the evidence must be viewed in a light most favorable to the plaintiff, since the verdict was directed against the latter. Baumgarten v. Jones (1963), 21 Wis. (2d) 467, 471, 124 N. W. (2d) 609. In Gilson v. Drees Brothers (1963), 19 Wis. (2d) 252, 254, 255, 120 N. W. (2d) 63, we said:

“The test for determining whether a verdict should be directed is whether ‘the evidence is so clear and convincing as reasonably to permit unbiased and impartial minds to come to but one conclusion.’ . . .
“Another rule which has pervaded our study of this appeal is the familiar one which requires a court in weighing a defendant’s motion for a directed verdict to regard evidence in a light most favorable to the plaintiff.”

The jury’s verdict was in favor of the plaintiff Tanberg, but the trial court granted the defendant Rydberg’s motion for a directed verdict. The trial court’s ruling must be sustained if the evidence supports either of the following propositions: (1) That the plaintiff Tanberg was contribu-torily negligent (under the Indiana rule) as a matter of law, or (2) that the defendant Rydberg was not negligent as a matter of law.

The Plaintiffs Negligence.

The tort took place in Indiana, and the parties, as well as the trial court, agreed that the law of Indiana is to be applied in determining whether the plaintiff is precluded from recovery if he is contributorily negligent. Restatement, Conflict of Laws, p. 270, sec. 385. Under Indiana law, contributory negligence in any amount is a complete defense in a negligence action. Keck v. Pozorski (Ind. App. 1963), 191 N. E. (2d) 325.

What conduct of the plaintiff Tanberg could be held to constitute negligence as a matter of law? The trial court noted that Tanberg knew that Rydberg was preparing to drive the truck from the gas pump to the scales and concluded that Tanberg was therefore negligent in putting himself in a dangerous position. However, Tanberg testified that a short time before going under the truck he had informed the driver of his intentions. While there was evidence by Rydberg that he did not hear any such statement, the jury was entitled to believe that the statement was in fact made as Tanberg claimed. It follows that this cannot support a judicial determination that Tanberg was negligent as a matter of law.

The trial court also considered that there was some negligence on the part of the plaintiff as a matter of law in his crawling under the truck rather than inspecting the refrigeration unit by opening the doors located alongside the unit. While that may have been a wiser course to have pursued, it does not necessarily follow that he was negligent in so inspecting the unit. He was not familiar with this particular brand of refrigerating device. The presence of a simpler or better route does not automatically make negligent the use of a different approach.

In our opinion, there was conflicting testimony concerning Tanberg’s conduct; these conflicts must be resolved in his favor. An impartial mind could have reasonably concluded that Tanberg was not negligent.

The Defendant’s Negligence.

The trial court stated that it was “very difficult to see that defendant was negligent at all.” If the trial court had been the trier of fact, this position would be entirely tenable; however, the jury was the trier of fact.

Can it be said that Rydberg was not negligent as a matter of law? If the jury believed that Rydberg had been informed by the plaintiff of the latter’s intention to check the refrigeration unit, the jury may properly have deemed it an act of negligence on the part of Rydberg to have moved the truck without first ascertaining the whereabouts of his assistant. Rydberg was not relieved of the potentiality of negligence because while in the driver’s seat he was unable to observe a person under the truck.

The trial court also observed that before Rydberg started the truck, plaintiff was standing only a very short distance from the door of the truck. However, Tanberg testified that three or four minutes elapsed between the time he left the presence of the defendant and the time he moved under the trailer; this testimony is not inherently incredible, and, if the jury believed it, it would follow that Rydberg moved the truck without checking as to the current whereabouts of his assistant.

In our opinion, the evidence, considered in a vein most favorable to the plaintiff, would have permitted the jury to conclude that Rydberg was negligent in moving the truck without observing or accounting for the location of his assistant.

By the Court. — Judgment reversed, with directions to reinstate the verdict of the jury.


author: Wilkie, J.

text:
    Guinther and another, Respondents, v. Schucht and another, Appellants.

      November 24, 1964 —
    January 5, 1965.

      For the appellants there was a brief by Allan & Storch of Mayville, and oral argument by Robert E. Storck.

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

   Wilkie, J.

The sole issue presented on this appeal is whether the evidence sustains the trial court’s finding that Schucht was causally negligent in operating his truck with a defective hoist mechanism. It is axiomatic that the trial court’s findings will not be disturbed unless they are against the great weight and dear preponderance of the evidence. The evidence must be reviewed from the standpoint most favorable to respondent. In finding Schucht negligent, the trial judge admittedly relied heavily on the testimony of Downing and Ratz. Since their combined testimony is the only evidence introduced from which it could be inferred that there actually was a defect in the ram, and further since Downing’s testimony was the only evidence which would indicate that Schucht was aware of any defect, the judgment must stand or fall on the sufficiency of this evidence.

Appellants assail the credibility of Downing’s testimony in several respects. First, appellants argue that the reference on direct examination to “ramps” rather than “rams” indicates a vague recollection on the part of the witness. This highly technical argument ignores the sum and substance of the testimony. Furthermore, on cross-examination Downing correctly referred to the mechanism as a “ram.” Second, appellant Schucht argues that his own testimony that he did not remember speaking to Downing and that he had never had any trouble with the ram sufficiently rebutted Downing’s story. A mere failure by Schucht to recall any conversation does not cast fatal doubt upon Downing’s testimony. An issue of credibility was fairly raised to be resolved by the trier of fact. Furthermore, Schucht’s testimony that he had no previous trouble with the ram does not of itself negate Downing’s story. The trier of fact judges the credibility of the witnesses and the weight of the testimony. Downing’s recollection is consistent with Ratz’s assertion that the right ram was defective when he purchased the truck and that it ultimately collapsed, and the trial judge could reasonably rely on his testimony. Third, appellants claim that developments subsequent to the accident wherein the truck neither required repairs nor experienced further trouble controvert Downing’s testimony. That the ram was being repaired when Ratz obtained the truck and that the ram subsequently fell apart, tend to refute Schucht’s story and the judge could rightly have placed greater reliance on this evidence.

Appellants next urge that Ratz’s testimony concerning the troubles he had with the truck was immaterial because it related to facts too remote from the accident in point of time. Whether this evidence is to be rejected rests largely in the discretion of the trial court. Ratz purchased the truck about two and a quarter months after the accident and began noticing difficulties immediately thereafter. The ram completely gave way a short time after that. It cannot be said, on these facts, that the trial court abused its discretion in admitting Ratz’s testimony.

Appellants finally contend that since Schucht provided a “logical explanation” for the accident, i.e., the pitch of the road combined with a soft spot in the street, the trial court’s finding was based on pure conjecture or speculation. The record is barren of any evidence which would sustain Schucht’s explanation. The fact that there was a four-to-six-inch gouge in the road at the place the right rear wheel rested does not of itself prove that the road contained a soft spot. The indention could have been caused merely by the overturning of the truck which was carrying a 15-ton load, regardless of the firmness of the ground.

In substance, this case turns on the credibility of the witnesses and the inferences to be drawn from the evidence. It is the function of the trier of fact to pass on such credibility and to weigh and draw the inferences. Deference should be paid to the trial court’s judgment in this case. Despite the conflicting evidence, the judicial mind, upon consideration of the evidence as a whole, could have reasonably arrived at the same result reached below.

By the Court. — Judgment affirmed.

        Tiedeman v. Middleton (1964), 25 Wis. (2d) 443, 130 N. W. (2d) 783; Estate of Beat (1964), 25 Wis. (2d) 315, 130 N. W. (2d) 739.

        Ruid v. Davis (1959), 8 Wis. (2d) 288, 99 N. W. (2d) 129; Henthorn v. M. G. C. Corp. (1957), 1 Wis. (2d) 180, 83 N. W. (2d) 759.

        Ace Associates v. Nagy (1961), 13 Wis. (2d) 612, 109 N. W. (2d) 359; Estate of Fillar (1960), 10 Wis. (2d) 141, 102 N. W. (2d) 210.

        Neumann v. Evans (1956), 272 Wis. 579, 76 N. W. (2d) 322.

       Relying on Frenzel v. First National Ins. Co. (1954), 267 Wis. 642, 66 N. W. (2d) 679.

        C. Hennecke Co. v. Cardinal Boiler & Welding Corp. (1962), 16 Wis. (2d) 493, 114 N. W. (2d) 869; Estate of Larsen (1959), 7 Wis. (2d) 263, 96 N. W. (2d) 489.


author: Beilfuss, J. Per Curiam

text:
    Boerschinger and others, Plaintiffs, v. Elkay Enterprises, Inc., and others, Defendants. [Three appeals.]

      November 24, 1964 —
    January 5, 1965.

      For the plaintiffs there was a brief by Kaftan, Kaftan & Kaftan and Robert P. Stebbins, all of Green Bay, and oral argument by Mr. Arthur Kaftan and Mr. Stebbins.

    For the defendants Elkay Enterprises, Inc., Packerland Packing Company, Inc., and Frank O. Zeise Construction Company, Inc., there were briefs by Berk & Pressentin of Green Bay, and oral argument by Bernard Berk.

    For the defendants Ted J. Denissen, Ronald Tordeur, Clarence Vanden Heuvel,. and town of Bellevue, there was a brief by Cornelisen, Denissen, Kranzush & Kuehn, and oral argument by David J. Condon, all of Green Bay.

       Motion for rehearing denied, without costs, on March 2, 1965.

   Beilfuss, J.

The principal reason stated by the trial judge in sustaining the demurrer of the municipal defendants was his opinion that the title to public office could not be tried in a declaratory-judgment action but must be by quo warranto by the attorney general in the name of the state.

Generally speaking, quo warranto is the proper and exclusive remedy to try title to office.

The plaintiffs contend that questions of title to office in this action are only ancillary to the principal cause of declaring the authority to build and operate an additional slaughterhouse and rendering plant to be invalid and as such can be tried with the principal cause of action.

Our first question is whether an action to try title to office must be brought by the attorney general or in the name of the state in quo warranto.

The controlling statutory sections of our quo warranto statute are:

“294.04 When action may be brought. (1) An action may be brought by the attorney general in the name of the state, upon his own information or upon the complaint of any private party, against the parties offending in the following cases:
“(a) When any person shall usurp, intrude into or unlawfully hold or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation created by the authority of this state; or . . .
“(2) Such action may be brought in the name of the state by a private person on his own complaint when the attorney-general refuses to act or when the office usurped pertains to a county, town, city, village or school district.”

The title to offices in question are those of town supervisor and building inspector of the town. The challenge to these offices in quo warranto is controlled by sub. (2) of the statute quoted. These being town offices, the action can be started by a private individual without the attorney general or his prior refusal to act. In quo warranto brought under the statute, however, the action must be in the name of the state.

The question still remains whether title to office can be determined by declaratory judgment where it is only ancillary to the principal cause of action in the complaint.

We have stated in several prior decisions that quo war-ranto was the exclusive remedy to try title to office. Some of the cases enunciating that principle are: State ex rel. Lochschmidt v. Raisler (1907), 133 Wis. 672, 114 N. W. 118; Ekern v. McGovern (1913), 154 Wis. 157, 142 N. W. 595; McCarthy v. Hoan (1936), 221 Wis. 344, 266 N. W. 916; Joint School Dist. v. Waupaca, etc., County School Comm. (1955), 271 Wis. 100, 72 N. W. (2d) 909.

We deem it necessary to reconsider this rule as it applies to actions such as this where title to office is ancillary to the principal dispute.

The action is brought under the Declaratory Judgments Act, sec. 269.56, Stats. Pertinent provisions of the statute are as follows:

“(1) Scope. Courts of record within their respective jurisdictions shall have power to declare rights, status and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.
“(2) Power to Construe, etc. Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. No party shall be denied the right to have declared the validity of any statute or municipal ordinance by virtue of the fact that he holds a license or permit under such statutes or ordinances.
“(5) Enumeration Not Exclusive. The enumeration in subsections (2), (3) and (4) does not limit or restrict the exercise of the general powers conferred in subsection (1) in any proceeding where declaratory relief is sought, in which a judgment or decree will terminate the controversy or remove an uncertainty.
“(12) Construction. This section is declared to be remedial ; its purpose is to settle and to afford relief from uncertainty and insecurity with respect to rights, status and other legal relations; and is to be liberally construed and administered.”

The plaintiffs, Boerschingers, seek to prevent the erection and use of a rendering plant and slaughterhouse. The corporate defendants have a building permit which authorizes the construction for that purpose. The major turning point of the entire controversy is the validity or lack of validity of the two town ordinances; one amending the zoning ordinance so as to permit the slaughterhouse and rendering plant, and the other to prohibit such building and use.

Certainly the right, status, and legal relations of the Boerschingers and the corporate defendants are affected by the conflicting ordinances. By virtue of sec. 269.56 (2), Stats., quoted above, the plaintiffs may have the question of the validity of those ordinances determined by declaratory judgment. The Boerschingers’ claim of invalidity of the ordinance permitting the building and use of the buildings is not based upon title to office but other alleged irregularities. The title to office of supervisor affects only the validity of the second ordinance prohibiting the building and use and the legality of the appointment of Mr. Tordeur, building inspector, who issued the building permit.

The title to the offices of town supervisor and town building inspector are only ancillary to the main controversy, the validity of the ordinances and the building permit.

Sub. (15) of the Declaratory Judgments Act (sec. 269.56, Stats.), provides:

“Uniformity of Interpretation. This section shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact it, and to harmonize, as far as possible, with federal laws and regulations on the subject of declaratory judgments and decrees.”

Professor Borchard, a well-recognized text authority, states in Borchard on Declaratory Judgments (2d ed.), pp. 362, 363:

“Since quo warranto is a traditional writ of ancient lineage, an occasional court will conclude that it is the indicated method of trying title to office or the validity of an election or other public act. But most courts have readily perceived that the declaratory judgment is a vehicle of relief of equal efficacy with quo warranto for the determination of the rights of the parties, while having the advantage of escaping some of the restrictions of quo warranto, . . .”

1 Anderson, another recognized authority in Actions for Declaratory Judgments (2d ed.), p. 396, sec. 195, concludes:

“The holdings that a declaratory judgment action may be entertained without regard to the existence of another remedy, are not only sustained by the better reasons, but are more in harmony with the true spirit and purpose of the declaratory procedure.”

In Recall Bennett Comm. v. Bennett, Gibson, et al. (1952), 196 Or. 299, 313, 314, 249 Pac. (2d) 479, the court stated:

“Neither quo warranto nor the statutory procedure authorized by OCLA, § 81-1901 can be said to furnish a remedy as prompt and adequate as that afforded by the Declaratory Judgments Act, which act is remedial and must be liberally construed.”

Counsel for the corporate defendants in their brief filed with the court “agree with counsel for plaintiffs that a liberal interpretation of the Uniform Declaratory Judgments Act permits a determination of an officer’s status in such proceeding, and that such remedy may be selected in lieu of quo warranto. After all, the only real distinction is in the caption, whether it is entitled in the individual’s name or on relation of the State.”

All the necessary parties to a determination of the title to office are parties plaintiff or defendant — the Boerschingers, the two persons claiming to be supervisor, the two persons claiming to be building inspector, the individual members of the town board, and the town of Bellevue.

Without belaboring this opinion with additional citations of authority, we perceive no adequate reason why the ancillary question of title to office should not be tried in an action for declaratory judgment.

We, therefore, withdraw the language of any prior opinion that can be construed to hold that quo warranto is the exclusive remedy to try title to office where that issue is ancillary to the principal cause of action for declaratory judgment.

Both the corporate defendants and the municipal defendants contend there is a defect in parties plaintiff and defendant. We disagree. All the parties are either necessary or proper parties to the controversy. The corporate defendants have an interest in the validity of the appointment of the building inspector and the invalidity of the second ordinance. These issues to some degree are dependent on who has title to office. The individual municipal defendants, the town of Bellevue, and plaintiff supervisor have an interest in their offices, the validity of the ordinances, and the enforcement of the town zoning regulations. The plaintiffs, Boer-schingers, likewise have an interest in all phases of the litigation.

Both the corporate defendants and the municipal defendants also contend that there is a misjoinder of causes of action.

Sec. 263.04, Stats., provides in part:

“. . . But the causes of action so united must affect all the parties to the action and not require different places of trial, and must be stated separately.”

We have determined that all of the issues stated affect all of the parties. We must now decide whether the complaint states more than one cause of action.

In Usow v. Usow (1933), 213 Wis. 395, 401-403, 251 N. W. 458, the problem was considered as follows:

“If a liberal construction of the complaint reasonably permits of the conclusion that it contains an equitable cause of action affecting all of the parties but in which different kinds of relief are demanded which fairly may be said to be incidental, germane, and auxiliary to that cause of action, then defendants’ contentions would seem to be not well founded.
“It would be futile to review the numerous decisions of this court in which similar questions have arisen, and attempt to harmonize the holdings therein. It would be difficult, if not impossible, logically to harmonize them. Whether causes of action are improperly united in a complaint at times has been a most perplexing question. Emerson v. Nash, 124 Wis. 369, 102 N. W. 921; McArthur v. Moffet, 143 Wis. 564, 128 N. W. 445. . . .
“In American Can Co. v. Stare, 150 Wis. 627, 138 N. W. 67, the plaintiff therein sought foreclosure of a real-estate mortgage, sale and foreclosure of personal property pledged to him as additional security to the note, and a judgment for deficiency. It was held that the complaint contained but one cause of action. The following language, taken from the opinion in Zinc Carbonate Co. v. First Nat. Bank, 103 Wis. 125, 139, 79 N. W. 229, was approved:
“ ‘The test of whether there is more than one cause of action stated or attempted to be stated in a complaint is not whether there are different kinds of relief or objects sought, but whether there is more than one primary right sought to be enforced or one subject of controversy presented for adjudication.’
“The following cases were cited: South Bend C. P. Co. v. George C. Cribb Co., 105 Wis. 443, 446, 81 N. W. 675; Gager v. Marsden, 101 Wis. 598, 77 N. W. 922; Herman v. Felthousen, 114 Wis. 423, 90 N. W. 432.
“In State v. P. Lorillard Co. 181 Wis. 347, 193 N. W. 613, the complaint charged a conspiracy in restraint of trade. Various kinds of relief which affected all of the parties alike, but which affected some of the parties individually, was demanded. It was there contended by the defendants, in support of their demurrers, that the complaint contained four separate and distinct causes of action, some of which did not affect all of the parties to the action. It was there stated by Mr. Justice Jones, speaking for the court, after referring to many cases cited in the opinion:
“ ‘The cases we have cited indicate that when a primary right.has been invaded the complaint may relate to many minor subjects, and facts may be stated constituting independent grounds for relief differing as to different defendants and still the complaint may not be subject to objection for misjoinder of causes of action.’
“In Woelfel v. New England Mut. Life Ins. Co. 182 Wis. 45, 195 N. W. 871, a complaint was considered which sought to cancel assignments of interests in certain life insurance payable to the assignors as beneficiaries under the policy and to recover from the insurance company the separate amounts to which the two beneficiaries were entitled. It was held that there was no misjoinder of causes of action. The court grounded its decision upon the familiar rule that ‘when jurisdiction in equity is once obtained, the court will take into consideration the entire subject matter and retain such jurisdiction until all matters involved in the litigation and connected with the subject matter are finally disposed of. For this purpose the court may determine questions which otherwise would be cognizable in a court of law; for example, damages may be ascertained and awarded. This is to avoid multiplicity of actions and in order that complete justice may be done.’ ”

1 Anderson, Declaratory Judgments (2d ed.), 1959 Supplement, p. 227, sec. 252, states:

“A cause of action for a declaratory judgment may properly embrace in a single cause of action, claims for ‘further consequential relief’ which otherwise would be regarded as separate causes of action, including claim for injunctive relief, and such corollary claims may be dismissed if they do not state facts sufficient to constitute a cause of action, even though a sufficient cause for declaratory judgment be pleaded.”

Upon the authority of these citations, we conclude that the complaint states but one primary right, namely, the legality of the authority for the construction and use of the building for slaughterhouse and rendering plant. The claims which may become issues are all ancillary or auxiliary to the alleged primary right and may be stated as one cause of action.

The corporate defendants contend that no cause of action is stated for declaratory relief. The municipal defendants contend that the court lacks jurisdiction over the subject matter. As presented, these contentions involve the same basic problem and will be considered together.

Upon this issue the allegations of the complaint reduced to their simplest terms provided in substance: That rendering plants and slaughterhouses are prohibited by a valid zoning ordinance of the town of Bellevue; that an invalid permit was issued permitting a building to be constructed for these prohibited purposes; that the defendants Elkay and Packerland, in addition to the new structure, have altered the original structure and are using it for prohibited purposes; that the plaintiffs, Boerschingers, are adjacent property holders and near-neighbors and that the construction and use of the building as proposed would damage them specially because of obnoxious sights, odors, sounds, traffic, attraction of insects and flies, and depreciate their property.

In Sohns v. Jensen (1960), 11 Wis. (2d) 449, 459-462, 105 N. W. (2d) 818, in considering an injunctional relief to prohibit the operation of an automobile-wrecking yard prohibited by a zoning ordinance, we stated:

“The last question raised by the defendant is whether the operation of the automobile-wrecking yard constituted a private nuisance. The gist of the complaint was that the defendant’s operation in burning the junked vehicles caused such serious, material, and permanent injury to the plaintiffs by reason of the smoke, smells, and stench, as to constitute a nuisance. The injunction on this ground enjoined only the burning of automobiles at any time on the defendant’s premises, but not the rest of the defendant’s business, as the defendant argues. The injunction based on the violations of the zoning ordinance enjoined the defendant from conducting an automobile-wrecking yard, and included the burning of vehicles as a part of that use of the premises. There was no pleading or issue that the entire wrecking-yard operation constituted a nuisance. Sec. 280.01, Stats., provides for an action to abate a private nuisance. The trial court granted an injunction on the authority of Pennoyer v. Allen (1883), 56 Wis. 502, 14 N. W. 609, which we agree rules this case. The plaintiffs’ cause of action for nuisance is basically an action in equity for abatement. Kamke v. Clark (1955), 268 Wis. 465, 67 N. W. (2d) 841, 68 N. W. (2d) 727. During the years 1956-1958, the defendant’s operation in burning automobiles created extremely black, dense smoke containing soot to a large degree, as well as smells predominately of burning rubber, oil, and grease. Some plaintiffs live adjoining the defendant’s property and other plaintiffs live nearby; one has a residence, a tavern, and picnic ground; another has a residence and greenhouse; another has only a residence. On occasion smoke penetrated the plaintiffs’ residences and left quantities of soot on furniture and walls. The smell was offensive and noxious. Even though a business may be lawful, nevertheless it may be conducted in such a way as to amount to a nuisance either because of its location, as in Hasslinger v. Hartland (1940), 234 Wis. 201, 290 N. W. 647, or because of the effect of the operation.
“While Pennoyer v. Allen, supra, is the leading case on what amounts to a nuisance, this court has passed upon the question many times since. In McCann v. Strang (1897), 97 Wis. 551, 72 N. W. 1117, this court stated that a lawful trade carried on in close proximity to a dwelling house could constitute a nuisance and that the test was whether the particular trade was of such a character as would be likely to be physically annoying to a person of ordinary sensibilities. The distinction between nuisances per se and other nuisances was pointed out in Rogers v. John Week Lumber Co. (1903), 117 Wis. 5, 93 N. W. 821. See Holman v. Mineral Point Zinc Co. (1908), 135 Wis. 132, 115 N. W. 327 (sulphuric-acid plant in close proximity to plaintiff’s property); Anstee v. Monroe Light & Fuel Co. (1920), 171 Wis. 291, 177 N. W. 26 (gas plant from which smoke was so thick and odor so bad as to affect the comfort, if not the health, of the plaintiff). In Dolata v. Berthelet Fuel & Supply Co. (1949), 254 Wis. 194, 36 N. W. (2d) 97, this court held that a business which necessarily impregnates the atmosphere with disagreeable, unwholesome, or offensive matter may become a nuisance to those occupying adjacent property when such property owners are substantially impaired in the comfort and enjoyment of their premises. Smoke is not a nuisance per se, but smoke and soot and offensive odors may constitute a-nuisance in fact when they interfere with the use and enjoyment by persons of ordinary sensibilities of their property.
“The defendant contends the injunction should only enjoin him from operating the automobile-wrecking yard in such a manner that the burning operations would not constitute a nuisance to the public. The difficulty with this argument is that the burning of automobiles is not a permitted use under the ordinance. Furthermore, the defendant did not show that such burning of automobiles can be done without serious injury to these plaintiffs’ use of their property. Although the defendant has not burned automobiles since 1958, there is no evidence that he has permanently ceased burning automobiles. The evidence indicates that he would continue to do so if not enjoined. We believe the trial court correct in granting the injunction enjoining the defendant from burning automobiles because it constituted a private nuisance. An injunction looks to the future and it is the proper remedy to abate the contemplated acts when in the past similar acts have caused sufficient harm to the plaintiffs to constitute a nuisance.”

We conclude the allegations of the complaint are sufficient to state a cause of action based upon a private nuisance.

Sec. 62.23 (7) (f) 2, Stats., provides :

“In case any building or structure is or is proposed to be erected, ... or any building, structure or land is or is proposed to be used in violation of this section or of any ordinance or other regulation made under authority conferred hereby, the proper authorities of the city, or any adjacent or neighboring property owner who would be specially damaged by such violation may, in addition to other remedies, institute appropriate action or proceedings to prevent such unlawful erection; ... to restrain, correct, or abate such violation; to prevent the occupancy of said building, structure or land; or to prevent any illegal act, conduct, business or use in or about such premises.”

Sec. 66.052, Stats., provides as follows:

“. . . Any such business conducted in violation of any city, village or town ordinance permitted to be enacted under the provisions of this section is declared to be a public nuisance. . . .”

The fact that a nuisance may be declared by statute to be a public nuisance so as to entitle a municipality to bring action to enforce does not make it exclusively so. There may be special damage in connection with the violation of the zoning ordinance so as to constitute a private nuisance.

In keeping with the purpose of the Declaratory Judgments Act to provide a tribunal where legal and equitable uncertainties can be resolved expeditiously and without multiplicity of suits with attendant delay and expense, as stated above, we conclude that a cause of action has been stated, that all parties named in the complaint are necessary or proper parties, that the ancillary or auxiliary issues that may exist can be litigated in the action, and that supplementary relief in the form of injunction can be decreed if warranted.

We feel that answers should be made and filed, the issues determined, and the trial conducted as soon as reasonably possible.

Declaratory judgment is well suited for this purpose. It is apparent from the record, especially the affidavits filed in support and in opposition to the temporary injunction, that strong and bitter feelings have to some degree motivated the actions of parties on both sides. The rights of the parties should be determined and this dispute should end as soon as possible. The remedial and procedural legal vehicle best suited for this purpose is an action for declaratory judgment under the facts alleged in the complaint.

Both demurrers should be overruled and all defendants who have appeared should be given opportunity to answer.

The defendants urge that the plaintiffs, Boerschingers, have fatally failed to allege that they are property owners as required by statute. The allegation is that they are property holders. The plaintiffs respond that it is more accurate to state you hold real estate and own personal property. The ancient legal connotation of ownership in the word “hold” or “held” is sufficient to withstand a challenge by demurrer. A more-specific description of the Boerschingers’ interest in property can be obtained by motion to make more definite and certain if desirable.

The plaintiffs have appealed the trial court’s order dissolving the temporary injunction which restrained the corporate defendants from proceeding with the proposed building.

The trial court’s memorandum opinion supporting the order dissolving the temporary injunction states in part as follows:

“It appears to the court that the plaintiffs’ claim that there is an immediate irreparable injury resulting from the defendants’ erection of the building in question cannot be sustained. In the final analysis, it is the operation of the proposed rendering tank that is sought to be prevented, and not the construction of the building itself.
“The ordinance as amended of the Town of Bellevue is presumed to be valid unless declared otherwise. A building permit was issued for the erection of this building on that basis. It is elementary that a temporary injunction should not be granted unless the plaintiffs’ right to an injunction is quite clear. There are demurrers pending in this case which seek to determine whether the plaintiffs have stated causes of action, and if so, whether the actions are properly brought. The sufficiency of the complaint and the reasonable probability of success must be tested before a temporary injunction can be granted.
“In Vredenburg v. Safety Devices Corp., 270 Wis. 36, the court said:
“ ‘When we take up the appeal from the part of the order which grants the temporary injunction, the sufficiency of the complaint immediately becomes material, for if it appears there that the plaintiff is not entitled to the permanent injunction which his complaint demands, the court ought not to give him the same relief temporarily.’
“It is, therefore, proper to assess the complaint and the legal defenses asserted by the defendants in their demurrers in opposition to the plaintiffs’ complaint. The Supreme Court in the case of Culligan v. Rheume, 269 Wis. 242, at page 250, stated as follows :
“ ‘We consider that generally it is the better practice, when legal or equitable defenses are raised, which appear meritorious to the trial court, to deny the application for the temporary injunction until such issues can be disposed of.’
“I can state emphatically that at the present state of the proceedings I cannot conclude that there is reasonable probability that the plaintiffs will prevail on their complaint.

Granting a temporary injunction is within the sound discretion of the court. Shearer v. Congdon (1964), 25 Wis. (2d) 663, 131 N. W. (2d) 377; Codept, Inc., v. More-Way North Corp. (1964), 23 Wis. (2d) 165, 127 N. W. (2d) 29. In Shearer, we said (p. 666):

“The test is not whether this court would have granted the injunction in the first place, but whether there was an abuse of discretion on the part of the trial court.”

We find no abuse of discretion upon the part of the trial .court. The order must be affirmed.

By the Court. — The order sustaining the demurrer interposed by the defendants Ted J. Denissen, Ronald Tor-deur, Clarence Yanden Heuvel, and town of Bellevue is reversed.

The order overruling the demurrer interposed by the defendants Elkay Enterprises, Inc., Packer land Packing Company, Inc., and Frank O. Zeise Construction Co., Inc., is affirmed.

All defendants who have appeared in the action shall have twenty days following the return of the record to the clerk of the circuit court for Brown county to serve and file answers to the complaint.

The order dissolving the temporary injunction is affirmed.

No appeal costs to be taxed.

The following opinion was filed March 2, 1965.

Per Curiam

(on motion for rehearing). One new point has been raised by appellants-defendants in their brief on rehearing which we deem merits consideration. This is the contention that the town zoning ordinance enacted March 28, 1962, is void on the ground that the legislature has prohibited the restriction therein imposed upon use of property for a rendering plant. In appellants’ original brief they took the position that it was unnecessary to consider the validity of this ordinance because it was claimed only the town and not private individuals could maintain an action to enforce the ordinance.

Appellants’ contention that the ordinance is void is grounded upon secs. 66.052 and 95.72, Stats.

Sec. 66.052, Stats., provides in part as follows:

“Any city council or village board may direct the location, management and construction of, and license (annually or otherwise), regulate or prohibit any industry, thing or place where any nauseous, offensive or unwholesome business may be carried on, within the city or village or within 4 miles of the boundaries, . . . Any town board as to the area within the town not now or hereafter licensed, regulated or prohibited by any city or village pursuant to the provisions of this section, shall have the same powers as provided in this section for cities and villages. . . . The provisions of s. 95.72 shall not be construed as any limitation upon the powers granted by this section to cities or villages but powers granted to towns by this section shall be limited by the provisions of s. 95.72 and any orders, rules and regulations promulgated thereunder.” (Italics supplied.)

Sec. 95.72, Stats., provides for the licensing of rendering plants by the state department of agriculture and imposes certain requirements and restrictions with respect to their location and operation.

The court has encountered some difficulty in construing the provision in sec. 66.052, Stats., that sec. 95.72 is not to be construed as any limitation on the power of cities or villages under sec. 66.052 but that the power granted to towns thereunder is limited by the provisions of sec. 95.72 and any orders, rules and regulations promulgated thereunder. It is clear that the legislature intended to confer, some power upon towns to regulate rendering plants in addition to the regulations imposed by sec. 95.72, but that such power is more restricted than that of cities and villages. The interpretation that seems most reasonable is that cities, villages, and towns may impose stricter regulation of rendering plants than imposed by sec. 95.72, but, although cities and villages may prohibit rendering plants entirely within their limits, towns cannot do so. We adopt such construction.

The entire town zoning ordinance of March 28, 1962, is not before us but only the following portions thereof set forth in the complaint:

“Section VIII Industrial District
“Use. In the Industrial District buildings and land may be used for any purpose except the following:
“2. Uses contrary to laws of the State of Wisconsin of ordinances adopted by the County Board of Brown County or the Town Board of the Town of BeUevue, Brown County, Wisconsin.
“3. Any of the following uses unless the location thereof shall have been approved in writing by the board of appeals, following a public hearing, and such approval shall be consistent with the general purpose and intent of this ordinance and shall be based upon such evidence as may be presented at such public hearing, tending to show the desirability or undesirability of specific proposed locations for a specific proposed use from the standpoint of the public interest, because of such factors as (without limitation because of enumeration) smoke, dust, noxious or toxic gases and odors, noise, glare, vibration, heavy vehicular traffic and increased traffic on the public streets; . . .
“(e) Bone distillation, fat rendering or any other form of dead animal reduction. . . .
“(k) Slaughterhouse, stockyard, meat processing. . .

Prior to adopting this ordinance the town had voted itself village powers by adoption of a resolution to that effect as authorized by sec. 60.18 (12), Stats. The zoning ordinance of March 28, 1962, does not purport to have been grounded on sec. 66.052, but upon sec. 62.23. Sec. 61.35 expressly makes the provisions of sec. 62.23 applicable to villages. Nevertheless we determine sec. 66.052 is controlling to the extent that a town having village powers cannot wholly exclude a rendering plant from its entire area. However, the above-quoted provisions of the ordinance of March 28, 1962, do not purport to do this. Instead it requires written approval by the board of zoning appeals of any application for use of property in an industrial district as a rendering plant, and sets forth specific standards to be followed by the board in passing on such an application.

We conclude that the ordinance does not violate sec. 66.052, Stats., nor is it in conflict with sec. 95.72.

The motion for rehearing is denied without costs.

       See also Whaling v. Stone Construction Co. (1958), 5 Wis. (2d) 113, 92 N. W. (2d) 278; Cohn v. Zippel (1961), 12 Wis. (2d) 258, 107 N. W. (2d) 184; and Rogers v. Oconomowoc (1962), 16 Wis. (2d) 621, 625, 115 N. W. (2d) 635.

       A scholarly comment on our Declaratory Judgments Act by Stanley F. Hack appears in the 1961 Wisconsin Law Review, 467.

       See Black’s Law Dictionary (4th ed.), p. 864.

       In Park Bldg. Corp. v. Industrial Comm. (1960), 9 Wis. (2d) 78, 91, 100 N. W. (2d) 571, we held there was no conflict between certain safety orders of the industrial commission and building code ordinance of the city of Milwaukee because it was possible for the property owner to comply with both.


author: Heffernan, J.

text:
    Kirchen, Appellant, v. Gottschalk and another, Respondents. Security General Agency Corporation, Respondent, v. Kirchen, Appellant.

      November 24, 1964 —
    January 5, 1965.

      For the appellant there was a brief by Maroney & Schiro of Milwaukee, and oral argument by Thomas P. Maroney.

    For the respondents there was a brief by Grootemaat, Cook & Franke, attorneys, and Harry F. Franke, Jr., and John J. Ottusch of counsel, all of Milwaukee, and oral argument by Mr. Ottusch.

   Heffernan, J.

On appeal from a decision of a trial court sitting without a jury, the court’s findings of fact will be sustained unless they are contrary to the great weight and clear preponderance of the evidence. Estate of Dobrecevich (1961), 14 Wis. (2d) 82, 85, 109 N. W. (2d) 477; Clark v. Moru (1963), 19 Wis. (2d) 503, 504, 120 N. W. (2d) 888. Nor is it sufficient for a reversal that contrary findings could have been made with evidence in their support. Weber v. Kole (1959), 7 Wis. (2d) 107, 95 N. W. (2d) 784.

The company’s claim for unremitted premiums is but feebly contested by Kirchen. The debt of Kirchen to the company is set forth in the books of the company, and there is no claim by Kirchen that the figures set forth therein are inaccurate. The findings of fact and the judgment are clearly in accord with the undisputed evidence.

We find that none of the trial court’s findings are contrary to the great weight or clear preponderance of the evidence, and therefore the judgments based upon these findings must be sustained.

Kirchen contended in his first cause of action that the company owed him commissions for the period of 1953 to 1960. He offered only his estimate of the amounts due him. The company, on the other hand, produced its records indicating an indebtedness of Kirchen to it. The court found that Kirchen was indebted to the company, a finding clearly in accord with the evidence, and certainly not contrary to the great weight or clear preponderance of it. To the extent that there is any conflict in the evidence, that conflict must be resolved to support the findings of the trial court.

The second cause of action alleged by Kirchen must be disposed of in a similar manner. He claimed that the company had failed to pay him commissions earned on student-accident insurance during the period 1953-1957. He alleged that he was in doubt and asked for an accounting. However, the records of the company showing credits to Kirchen are substantially in accordance with his claim. There was evidence that the commissions for student-accident insurance were merged with other commissions due Kirchen and the whole amount was probably paid to him. Kirchen himself testified that his draw reflected the commissions credited to him on student-accident sales.

It should also be borne in mind that though Kirchen was entitled to credit for commissions, it does not necessarily follow that payment was required in such amounts. These amounts, like other commissions credited, were subject to offsets arising from any indebtedness that might be due the company. The mere showing of a credit to Kirchen’s account does not sustain the burden of proof necessary to show that payment was due in that amount, and it was Kirchen’s duty to sustain such a burden. The burden of proving payment did not devolve on the company in the absence of further proof by Kirchen. While the testimony on this point is in conflict, we cannot say that the finding of the court is contrary to the preponderance of the evidence.

Thére was evidence that the company had canceled policies of Kirchen’s clients in some instances because he had failed to remit the premiums collected, and in other instances because some clients at least were no longer desirable risks and were canceled under the terms of the policy. The trial court’s finding that these cancellations were justified is not contrary to the great weight or clear preponderance of the evidence.

Kirchen also claimed a vested interest in the sale of student-accident insurance sold in the Milwaukee area and asked that the company be enjoined from selling this type of insurance to the clients that had originally been sold by Kirchen. There was evidence to show that this kind of insurance was nonrenewable, in that it had to be sold anew by a different policy each year. There was no evidence that it was the custom or usage of the trade that this type of insurance followed the original agent. The only evidence in support of such a custom was the statement that there was no reason why student-accident insurance should be excepted from such a custom. Such evidence does not even raise a conflict of testimony. Certainly, no contractual right to commissions on sales made by others was proved. There is no evidence showing Kirchen’s entitlement to those commissions.

The trial court also determined that the claim of Kirchen was barred by the statute of limitations.. Kirchen seeks to avoid such limitations because he is either an independent contractor or a partner. However, we need not decide whether the statute of limitations applies inasmuch as we have already determined that the trial court’s findings that the company was not indebted to Kirchen on any of the causes of action alleged are not contrary to the great weight and clear preponderance of the evidence.

By the Court. — Judgments affirmed.


author: Currie, C. J. Gordon, J.

text:
    Goebel, Respondent, v. General Building Service Company, d/b/a Edward Passo, Appellant.

      November 24, 1964 —
    January 5, 1965.

      For the appellant there was a brief by George D. Young and John H. Ames, both of Milwaukee, and oral argument by Mr. Ames.

      . For the respondent there was a brief by William F. Quick and E. Ace Bernstein, both of Milwaukee, and oral argument by Mr. Bernstein.

       Motion for rehearing denied, with costs, on March 9, 1965.

   Currie, C. J.

The issue on this appeal is whether the trial court erred in denying the motion for directed verdict.

The question in the verdict which inquired whether defendant was negligent read:

“Was the defendant, General Building Service Company d/b/a Edward Passo, by its employees or agents, negligent with respect to the method in which it carried out certain repair work on the coping stones of the State Office Building?”

The test to be applied in determining whether it was error to have denied the motion for directed verdict is whether there is any credible evidence in the record, which, giving it the most favorable construction, will sustain the jury’s answer “Yes” to this question. Schiller v. Keuffel & Esser Co. (1963), 21 Wis. (2d) 545, 124 N. W. (2d) 646. A resumé of the material evidence bearing on the issue of defendant’s negligence follows.

The state, owner of the building to be repaired by defendant, did not turn over possession to- defendant during the coürse of performance of defendant’s contract but continued to occupy the building. The contract provided that the state as owner and its representative, appointed by the state chief engineer and given the title of “Building Construction Superintendent,” should at all times have access to the work wherever it was in preparation or progress.

The contract contains this general explanation of the work required to be performed under its terms:

“The work includes, Steel Scaffold; Repairs to Masonry Coping and Masonry Pointing, Flashing, Gutters, Conductors, Remove part of Cupola, Roof remaining part of Cupola, Replace Ridges, Check all Flashing; Painting all Gutters, Conductors, Flashing, Ridges, Bays, Belts, Parts of Cupola; and all Door and Window Frames.
“Present Terra-Cotta Coping will be either repointed or removed where loose and reset in mortar. All other TerraCotta on the west, north, east and south elevations will be tuck pointed.”

This specific provision relating to the terra-cotta coping was also set forth in the contract:

“Care must be used in removing the loose units of TerraCotta. These removed units to be cleaned free of all mortar as well as the bed and then relaid. All joints in TerraCotta, glazed tile coping, brick, and stone work must be carefully cleaned of loose or deteriorated mortar.”

Although the contract acknowledged the right in defendant to subcontract any of the work, the defendant agreed to be fully accountable to the state for the acts and omissions of the subcontractors.

Messmer, the architect who had prepared the plans and specifications for the work that were incorporated into the contract, when asked who had control of the work during the performance of the contract, testified, “The general contractor together with the architect and the state representative.” The contract provisions substantiate the correctness of this statement. While defendant, as general contractor, was required to provide competent and efficient supervision of the work, the contract also provided:

“The Architect shall have general supervision and direction of the work. . . .
“He shall make decisions on all matters relating to the execution and progress of the work, and to the interpretations of the Contract Documents. His decisions are subject to review by the State Chief Engineer or by arbitration. The Building Construction Superintendent, appointed by and responsible to the State Chief Engineer is the Architect’s immediate representative on the site of the work, with all the duties and responsibilities of the Architect.
“He has the authority to act for the Architect in all matters relating to the prosecution of the work and its installation in accordance with the specifications. He is also the Owner’s authorized representative in all matters requiring Owner approval or participation.”

The building was seven stories high. The west elevation of the building had three dormers projecting out of the roof in the general shape of inverted “Vs” and each of these dormers had terrk-cotta coping. At the lower edge of the roof out of which these dormers projected there was a line of gutters. On the morning of October 19, 1960, plaintiff was sent to the building by his employer who had a subcontract from defendant to do the sheet metal work. Plaintiff’s mission was to measure the gutters. On arriving at the building he found that the framework of a steel scaffold had been erected across the entire west side of the building to a height of about three feet below, the gutters. The construction of the scaffold constituted part of the work to be performed by defendant under the contract. Defendant had subcontracted the erection of the scaffold. Plaintiff stood on the platform of a fire escape and placed a painter’s plank across the top of a section of this scaffold, and then crawled or walked out on this plank to measure the gutters.

While standing at the right of the south edge of the north dormer, he stretched out with his back in a somewhat horizontal position to measure a portion of the gutter to the south. While in this position a piece of the coping, which he described as a “stone,” fell approximately two and a half to three feet and struck him in the lower back. Plaintiff then reached back and with his left hand pushed the “stone” into the gutter where a fellow employee observed it a day or two later. Plaintiff described this piece of coping as having dimensions of 20 by 14 by 14 inches and estimated its weight to be from 30 to 40 pounds. He stated it had fallen from the lower southerly corner of the dormer. There were no eyewitnesses to the accident other than plaintiff.

The architect Messmer testified that there was only one chance in a million that this piece of coping could have fallen without some outside force being exerted on it. He explained that the piece of terra-cotta that fell was supported in place by the piece below which formed a base large enough to provide such support. Plaintiff, however, denied that he touched the piece of coping that fell prior to the accident. Messmer also testified that “at the time we got ■the order to make inspection for the state of Wisconsin of this building,” he had gone up on top of the roof and walked along and looked “at all of these copings.” He also had stood across the street and examined the copings with high-powered field glasses. There was nothing noticeable to which Messmer called attention to the state regarding the two northerly dormers of the west elevation. He did call attention to the third piece of terra-cotta from the top in the coping of the south dormer which projected out about one-half inch and was in a dangerous position. This was two dormers removed from the place where plaintiff was injured. After the scaffold was erected Messmer made a further inspection from it and saw nothing dangerous that needed immediate attention except this projecting piece of coping in the south dormer. Messmer asked defendant to remove that particular piece first. He further testified that there was no noticeable deterioration at the place where the accident occurred.

The record is silent as to what masonry work, if any, had been done by defendant between the time work commenced on the contract on October 10th and the accident to plaintiff on October 19th. The only work mentioned by architect Messmer as having been done during that period was the erection of the steel scaffold across the entire west side of the building and the removal of the cupola on the roof by the sheet metal contractor. Messmer estimated that computed on a cost basis, 30 percent of the contract had been performed by October 19th but stated that construction of the scaffold constituted the major item to be performed under the contract. Plaintiff called defendant as an adverse witness but asked him no questions concerning his performance of the contract. All witnesses who testified were called by plaintiff, none having been called by defendant.

On this appeal plaintiff places his chief reliance on the application of the doctrine of res ipsa loquitur. The cases recognize that the doctrine of res ipsa loquitur may be applicable in situations where someone is injured by the falling of part of the exterior structure of a building. Both v. Harband (1958), 164 Cal. App. (2d) 743, 331 Pac. (2d) 140; Cooper v. 804 Grand Bldg. Corp. (Mo. 1953), 257 S. W. (2d) 649. See also Annos., “Liability for injury to person in street by fall of part of structure of completed building,” 7 A. L. R. 204 and 138 A. L. R. 1078.

In the instant case the jury was given this instruction:

“Also, with respect to your answer to Question No. 2, inquiring as to the negligence of the defendant, you are instructed that if you find the defendant had the right to control the repair work on the coping stone, and if you further find that the accident claimed is of a type or kind that ordinarily would not have occurred had the defendant exercised ordinary care, then you may infer from the accident itself and the surrounding circumstances that there was • negligence on the part of the defendant, unless the defendant has offered you an explanation of the accident which is satisfactory to you.”

This instruction closely follows that set forth in Wis J I — Civil, Part I, 1145, and approved in Turk v. H. C. Prange Co. (1963), 18 Wis. (2d) 547, 119 N. W. (2d) 365. However, with respect to the element of exclusive control it is phrased in terms of “exclusive right to control the repair work on the coping stone.” The propriety of referring to the repair work is questionable. There is a complete absence of any evidence that on the day of the accident defendant was engaged in making any repairs to the coping anywhere on the west side of the building. There is no evidence that defendant had a duty to commence such' coping repairs by that time. Howevér, the most serious objection is that no res ipsa loquitur instruction should have been given because the undisputed evidence establishes that defendant had neither exclusive control over the coping stone which fell nor the right to exercise such exclusive control.

Exclusive control by defendant • of the instrumentality causing harm is one of the two essential elements in Wiscon-sm necessary for application of the doctrine of res ipsa loquitur. Turk v. H. C. Prange Co., supra. At page 557 of the Turk Case it is stated, “Koehler v. Thiensville State Bank, supra [(1944), 245 Wis. 281, 14 N. W. (2d) 15], established the Wisconsin rule that right to control is the important factor and actual exclusive control is not necessary.” In the Koehler Case defendant bank attempted to avoid application of res ipsa loquitur on the ground that it had employed someone else to inspect the instrumentality which caused the harm and thereby lost the exclusive possession or control over it. This court held that the bank could not delegate its duties with respect to inspection so as to escape liability and therefore the inspection must be considered to have been within its control. An equivalent situation would exist in the instant case, if plaintiff’s suit were being maintained against the state as owner (assuming the state had given its consent to being sued), and the state would advance the argument that it did not have exclusive control over the replacement of loose coping stones because it had delegated their repair to the instant defendant as general contractor. The problem confronting us, however, is not whether a res ipsa loquitur instruction would be proper if the action were against the building owner, but whether it constituted error to give it against defendant contractor.

We are satisfied that defendant did not possess such right of exclusive control as would warrant the giving of a res ipsa loquitur instruction. Plaintiff attributes negligence to defendant in that he had not reset in mortar the falling coping stone prior to permitting plaintiff to use the scaffold for measuring gutters. However, either the architect or the state’s representative on the job had the right under the contract to direct defendant to perform any other part of the masonry repair work before resetting this particular stone.

If the jury’s finding of negligence on the part of defendant is to be sustained it must be on the basis of evidence of specific acts of negligence on his part. Plaintiff relies upon a provision appearing in the instructions to bidders made available to defendant before he submitted his bid from which the contract resulted. This read, “The bidder shall also visit the site and acquaint himself with all existing conditions affecting the execution of the work to be included in the contract.” The obvious purpose of this provision is to protect the owner against a future claim by the contractor for additional compensation above the contract price because of the conditions unknown to the bidder which resulted in extra expense in performing the contract. This clause does not have the effect of relieving plaintiff from introducing evidence that defendant was negligent in failing to discover the dangerous stone. While the plans and specifications constituted notice to defendant that some coping stones would have to be reset in mortar and others repointed, they did not apprise defendant that the condition of this particular stone was dangerous.

Whether the verdict against defendant can be sustained on the evidence presented boils down to whether there is evidence which would warrant the jury in concluding defendant was negligent because he did not discover this coping stone constituted a dangerous condition. There can be no argument that, if defendant had made such discovery, the exercise of ordinary care would have required that he not have permitted plaintiff to use the scaffold until this piece of coping had been removed and reset in new mortar. The only direct evidence bearing on the issue of defendant’s failure to discover the danger by proper inspection is the evidence adduced by plaintiff in the testimony of architect Messmer previously summarized herein. Plaintiff called Messmer as plaintiff’s witness. While his testimony that careful inspection had disclosed no evidence of a dangerous condition would not be conclusive upon the jury if there were other evidence that a proper inspection by defendant should have disclosed a dangerous condition, such other evidence is entirely lacking. On the face of this record there is no evidence which would support a finding that defendant was negligent in failing to discover that a dangerous condition existed.

We are constrained to hold that there is no evidence to sustain the jury’s finding that defendant was negligent in the method in which he carried out the repair work on the coping stones. Therefore, it was error not to have granted defendant’s motion for directed verdict.

By the Court. — Judgment reversed, and cause remanded with directions to dismiss the complaint upon its merits.

Gordon, J.

(dissenting). I do not believe that the plaintiff’s action, should be dismissed. While the trial court’s instruction regarding res ipsa loquitur may necessitate a new trial, I must respectfully dissent from the direction for dismissal.

The defendant contractor was aware that there were loose stones in the upper regions of the building. At the time the plaintiff sustained his injury, the contractor had completed 30 percent of the reconstruction. In view of such facts, can it be said that this plaintiff has no case as a matter of law? In my opinion, there may be a valid cause of action for this plaintiff under the concept of duty discussed in Dwyer v. Jackson Co. (1963), 20 Wis. (2d) 318, 121 N. W. (2d) 881.

In the Dwyer Case, the plaintiff was injured when the folding chair in which she was sitting collapsed. A jury finding in favor of the plaintiff was sustained. There was evidence that the chair was old and that the defendant had previously destroyed a number of such chairs because of their being out of shape. With reference to the defendant’s duty, the court said, at page 323 :

“His duty includes reasonable inspection. He is not liable for injury caused by a latent defect which would not have been revealed in the course of reasonable inspection. . . . The jury could reasonably believe that an employee, making a reasonably careful inspection, would have noticed the same condition and removed the chair. The inspections made by the manager and the maid may have been deemed somewhat casual. The jury could consider that the age of the chair and the experience the hotel had had with similar chairs called for closer scrutiny.”

In the instant case, the contractor knew of the disrepair of the terra-cotta coping. Under the Dwyer Case, he had a duty to inspect, and a jury question was presented as to whether such inspection was reasonable.

The jury evidently considered that the situation was a dangerous one, because it assessed 39 percent of the negligence upon the plaintiff. I do not think it just to rule as a matter of law that the defendant was free of negligence. I would order a new trial.

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

       No question was included in the verdict grounded on alleged failure of defendant to provide plaintiff with a safe place of employment under the safe-place statute, sec. 101.06, Stats., and no question relating to the applicability of the statute was presented or argued on this appeal.

       In Weber v. Hurley (1961), 13 Wis. (2d) 560, 109 N. W. (2d) 65, and Potter v. Kenosha (1955), 268 Wis. 361, 68 N. W. (2d) 4, it was held that, where the owner of premises turns over premises in a safe condition to a general contractor, the owner is not liable for a hazardous condition thereafter created by the contractor, even though the owner retains the right of inspection. •''


author:
Wilkie, J.
      Gordon, J.

text:
    Goldmann Trust, by Trustee, Appellant, v. Goldmann and others, Respondents.

      November 24, 1964 —
    January 5, 1965.

      For the appellant there was a brief by Joseph J. Shutkin, Edward D. Schneiderman, and Charles D. Ashley, all of Milwaukee, and oral argument by Mr. Shutkin.

    For the respondents there was a brief by Foley, Sammond & Lardner, attorneys, and Marvin E. Klitsner and James F. Jans of counsel, all of Milwaukee, and oral argument by Mr. Klitsner,
   Wilkie, J.

The only issue involved on this appeal is whether the disagreement concerning termination of employment of a permanent employee is a question or dispute between the parties which is subject to arbitration under paragraph 15 of the partnership agreement.

Appellant contends that since withholding written consent to a permanent employee’s discharge is an absolute right or privilege of each party, there is no dispute calling for arbitration. Respondents on the other hand urge that once mutuál written consent cannot be obtained, a dispute arises that is subject to the arbitration procedure contained in the agreement. In essence respondents contend that every disagreement arising out of any phase of the operation of the business constitutes a dispute which at the request of either is to be arbitrated; appellant, on the other hand, maintains that this is one of the few specific decisions that requires written mutual consent of both parties and that, in such a situation, there is no machinery for resolving a disagreement where either party refuses to give that consent.

The entire controversy presents a question of law involving the proper construction of the very comprehensive and carefully drafted partnership agreement.

A mere disagreement in interpreting the partnership agreement itself is not tantamount to saying that an arbitra-ble dispute is present. A controversy must arise over matters within the scope of the arbitration clause, or no reason exists for arbitration. In ascertaining whether or not a dispute exists, the agreement must be considered as a whole and all parts harmonized as far as possible. Effort must be made to carry out the intent of the parties.

The general mandate of the agreement under paragraph 8 states that the partnership “shall be mutually controlled . . . and all matters involving action of any kind, or inaction of any kind, and all policies or decisions of the firm shall be decided only by mutual consent in fact of the parties hereto or their . . . designated representatives, . . .” The very same paragraph provides that this mutual consent must be in writing as to several designated areas of action or inaction. Thus, the agreement provides: “Neither party hereto', nor their designated representatives, shall have power or authority to bind the firm in any contract, lease, insurance policy, promissory note, or to incur any expense, or hire or fire permanent employees, or those under contract under valid agreement for a definite period, without mutual consent in fact in writing . . .

Paragraph 5 requires written consent of the other partner before any advance is made by a partner to the partnership and before any interest is paid thereon; paragraph 9 requires written consent on every purchase order. Paragraph 20 requires mutual written consent in seven other specific areas of decision and, as pertinent here, repeats the requirement of paragraph 8 that neither partner shall dismiss a permanent employee without the written consent of the other.-

In construing this partnership agreement it must be assumed that these requirements of mutual written consent for the firing of a permanent employee were inserted for a purpose. A construction of the agreement which gives reasonable meaning to all provisions is preferable to one which leaves part of the language useless or inexplicable or creates surplusage.

If every dispute concerning any partnership matter is already subject to arbitration, there would have been no reason for including the written-consent language. That the partners actually intended that certain types of decisions could be made only by written mutual consent, while anticipating arbitration where there was disagreement about other decisions affecting the partnership business, gives effect to both the mutual written-consent and arbitration provisions of the contract. In addition to intending that certain decisions could only be made by the mutual written consent of the partners, the only other reason for the written-consent provision would be to assure that a permanent record is kept of important decisions. This would be unnecessary inasmuch as paragraph 8 already requires that the “decisions mutually arrived at ... by the partners . . . shall be written in the form of minutes. . . .”

Another important rule employed in construing agreements is that where there is an apparent conflict between a general and a specific provision, the latter controls. Specifically requiring written mutual consent in the matters of hiring and firing permanent employees when such situations would seemingly be adequately covered by an all-inclusive mutual-consent provision (not in writing) evinces an intent to deal with these matters differently. This is especially true where identical requirements are inserted in two different spots in the agreement. The particular provisions insisting upon written mutual consent should control over the general requirement of mutual consent.

Although paragraph 15 commences with sweeping language calling for arbitration of “all disputes and questions whatsoever,” several particular situations follow before the scope again broadens to include “any other matter in any way relating to . . . the rights, duties and liabilities of any person hereunder, . . .” The elaboration of specifics tends to dilute the effect of the all-encompassing language. Had the partners intended to arbitrate every conceivable dispute, the sweeping language would have been sufficient. Particularizing casts doubt as to what situations are to be covered. It is significant that although some instances are specially singled out to be arbitrated, no specific reference is made to the hiring or firing of permanent employees as is done in paragraphs 8 and 20. This could reasonably be construed to mean that hirings and firings are not be to arbitrated. The trial court relied on the “rights ... of any person hereunder” language in finding that there was an arbitrable dispute. A close examination of the partnership agreement discloses, however, that allusions to parties or persons were made only in reference to the partners and not in connection with others. Thus this language does not dictate, as the trial court felt, that the rights of a nonpartner-permanent employee be submitted to arbitration.

Paragraph 10 defines what is meant by a family member and further provides:

“. . . in event the compensation from the firm for family employees cannot be agreed upon it shall be determined by arbitration as hereinafter provided for in reference to any disputes and differences arising in the conduct of the business of the firm.”

This language, limiting the arbitration provision solely to the issue of compensation, implies that arbitration is not available in other employment situations. At least the language demonstrates that the drafters of the partnership agreement did not consider the general arbitration provision (paragraph 15) as all-inclusive as the respondents maintain.

Paragraphs 8 and 20 clearly call for written consent in order to discharge a permanent employee. Assuming that the present disagreement over Werthan Weil’s continued employment is subject to arbitration and, further, that respondents prevail, the agreement still lacks any provision which forces the unsuccessful party to acquiesce in writing. Paragraph 15 merely declares that the arbitrators’ decision is final and conclusive, but contains no command to the unsuccessful partner. Not only does the absence of a provision to this effect in the otherwise extremely detailed and meticulously drawn agreement indicate that there was to be no arbitration where written consent was required, but it makes any arbitration futile since there is no way of enforcing the decision. Further action would be necessary to compel the recalcitrant partner to give his written consent. An arbitration award must be final and must not “naturally lead to and stimulate new controversies and litigation, instead of securing the object sought to be attained by the arbitration of finally and definitely settling the old controversy.”

Our analysis of the agreement as a whole leads to the conclusion that the question of a permanent employee’s continued employment is not an arbitrable dispute. In reaching such a determination we have given proper consideration to the general rule that arbitration should be encouraged. But parties may properly contract that certain matters that deteriorate into disputes shall be arbitrated while other matters must be left for decision in another way or remain unresolved. Under a fair and complete consideration of their agreement this is precisely what the parties intended to do here.

It might be contended that the very subject of the proper construction of the agreement, considering the opposing contentions of appellant and respondents, is itself the proper subject of arbitration, particularly in view of the language of paragraph IS, which provides for arbitration of “the construction or application” of the agreement. However, neither party raised this point either at the time of the demand for arbitration on June IS, 1964, or in the proceedings in the lower court or here. Thus, the parties chose to battle out this construction question in the courts and have sought an adjudication as a matter of law on the meaning of their agreement.

Then, too, to regard this argument about the construction of the agreement as raising a dispute which is arbitrable as a preliminary question would unduly prolong the resolution of the dispute since even after a particular construction resulted from arbitration, the controversy might well continue through a court review of such decision or in any event through the subsequent arbitration of the very subject still left undecided. In the end, any construction which would support respondents’ position would, as we view it, nullify the specific provisions of paragraphs 8 and 10, calling for written consent of both parties before a permanent employee may be discharged.

The construction of the agreement as decided here could cause a temporary impasse in partnership affairs, but a contrary result would wreak havoc with the specific terms of this elaborately drawn agreement. Any stalemate occasioned would not be hopeless, however. The partnership ran for an initial term of ten years with a provision for renewal for two additional five-year periods unless either partner or his designated representative should give proper notice to the contrary. When the original partnership terminated in 1961 the term was extended until the end of 1966, and such extension modified the original agreement as to several matters. There is no reason why the problem of Werthan Weil’s discharge cannot be resolved and the agreement modified to clarify the employment provisions if mutually so desired when the present term expires on December 31, 1966. At any rate, it is doubtful that the retention of this particular ready-to-wear buyer for two more years will completely deadlock the partnership.

By the Court. — Order reversed, and cause remanded for further proceedings not inconsistent with this opinion.

Gordon, J.

(dissenting). In my opinion, this comprehensive partnership agreement was designed to provide for the resolution of all business decisions rather than to permit an impasse as to certain disputes. The language of the arbitration clause is suffficiently broad to warrant this interpretation; paragraph 15 says that “all disputes and questions whatsoever” shall be determined by arbitration.

It is difficult to believe that the parties intended to withhold certain areas of potential disagreement from the arbitration system since the agreement was executed in order to insure continuity of the business. If a given issue, such as the discharge of a permanent employee, were unresolved, it could jeopardize the business and cause a dissolution of the partnership; this would be contrary to the parties’ express declaration that they “are desirous of continuing said partnership.”

The terms of paragraph 15 are very broad; it is admittedly arguable that the specific provisions in paragraphs 8, 9, and 20 tend to dilute the general provisions of paragraph 15. For the sake of argument, it may be assumed that the majority is correct in its interpretation that the elaboration of specifics supersedes the requirement for arbitration of “all disputes and questions whatsoever;” nevertheless, the mere existence óf a dispute as to interpretation of the contract is itself subject to arbitration. This stems from the express terms of paragraph 15 which make arbitrable all questions “touching these presents, or the construction or application thereof.”

In other words, regardless which side is actually correct about the right to arbitrate the effort to discharge a permanent employee, the existence of an issue as to the proper interpretation of the contract must, by its own terms, be submitted to arbitration.

As I read this agreement, the parties committed themselves to use arbitration as a comprehensive technique for preserving the operation of the business in spite of divided ownership.

Arbitration is by no means a new device; in 320 B. C., Aristotle said, “The arbitrator looks to what is equitable, the judge to what is law; and it was for this purpose that arbitration was introduced, namely, that equity might prevail.” Rhetoric, bk. 1, ch. 13. An agreement to arbitrate as a method of avoiding litigation is consonant with the legislative policy as expressed in ch. 298, Stats.

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

        Quast v. Guetzkow (1916), 164 Wis. 197, 159 N. W. 810.

        Will of Greiling (1953), 264 Wis. 146, 59 N. W. (2d) 241; Kuenzi v. Radloff (1948), 253 Wis. 575, 34 N. W. (2d) 798.

        Estate of Schmitz (1962), 17 Wis. (2d) 412, 117 N. W. (2d) 249.

         Kuranda v. O’Connor (1964), 23 Wis. (2d) 51, 126 N. W. (2d) 568; Tollefson v. Green Bay Packers (1950), 256 Wis. 318, 41 N. W. (2d) 201.

        Worth v. Kelley Co. (1964), 22 Wis. (2d) 318, 126 N. W. (2d) 75; Nelson v. Boos (1959), 7 Wis. (2d) 393, 96 N. W. (2d) 813; Lauterbach v. Brown (1959), 7 Wis. (2d) 240, 96 N. W. (2d) 605.

         Thomsen-Abbott Construction Co. v. Wausau (1960), 9 Wis. (2d) 225, 100 N. W. (2d) 921; Johnson v. Green Bay Packers (1956), 272 Wis. 149, 74 N. W. (2d) 784; Milwaukee County v. H. Neidner & Co. (1936), 220 Wis. 185, 263 N. W. 468, 265 N. W. 226, 266 N. W. 238.

         Frankfurth v. Steinmeyer (1902), 113 Wis. 195, 204, 89 N. W. 148; Slocum v. Damon (1845), 1 Pin. (Wis.) 520; see also sec. 298.10 (1), Stats. “In either of the following' cases the court . . . must make an order vacating the award upon the application of any party to the arbitration: . . . (d) Where the arbitrators exceeded their powers, or so imperfectly executed them that a mutual, final and definite award upon the subject matter submitted was not made.”

         In re Lower Baraboo River Drainage Dist. (1929), 199 Wis. 230. 240. 225 N. W. 331.