text:
    Chandler, Respondent, v. Chandler, Appellant.

      October 28

    November 24, 1964.

      .For the appellant there was a brief by Brennan & Brennan of Milwaukee, and oral argument by Joseph K-. Brennan.

      For the respondent there was a brief by Edgarton & Hobbs of Fond du Lac, and oral argument by Allan L. Edgarton.

   Currie, C. J.

Appellant defendant’s brief states that the issue before this court is:

“Are the following findings of the circuit court of Fond du Lac county contrary to the great weight of the evidence:

“(a) That the appellant should pay $100 for unusual medical payments ?
“(b) That the divorce judgment should be amended to increase the support payments to $145 per month?”

With respect to the portion of the order which requires defendant to pay the sum of $100, a factual issue is presented as to whether there were at least $100 of the medical and drug expenses incurred by plaintiff for Barbara which were “unusual” within the meaning of the applicable provision of the divorce judgment. The test, therefore, to be applied to the trial court’s determination of this issue is whether such determination is against the great weight and clear preponderance of the evidence. On the other hand, the trial court’s determination that the monthly support-money payments required of defendant be increased $20 per month to cover sending Barbara to summer camp involves an exercise of discretion and not a fact finding. The test to be applied to it on this appeal is whether it constitutes an abuse of discretion. See Jackson v. Jackson (1962), 16 Wis. (2d) 61, 64, 113 N. W. (2d) 546; Bradley v. Bradley (1960), 9 Wis. (2d) 523, 530, 101 N. W. (2d) 628; Anderson v. Anderson (1959), 8 Wis. (2d) 133, 142, 98 N. W. (2d) 434; Littig v. Littig (1938), 229 Wis. 430, 437, 282 N. W. 547.

In Kritzik v. Kritzik (1963), 21 Wis. (2d) 442, 446, 124 N. W. (2d) 581, we stated, “We must sustain the trial court’s modification of a divorce judgment unless the determination is contrary to the great weight of the evidence.” This is true only where the modification rests entirely on a factual determination. If the modification rests primarily on an exercise of discretion, this court will not disturb it unless we find an abuse of discretion. The afore-quoted statement from the Kriteik Case must be limited to the peculiar facts of that case, and is not to be interpreted as generally applicable to all modifications of support and alimony-payment provisions of divorce judgments.

After a review of the evidence we determine a trial court’s finding, that the following medical and drug expenses incurred by plaintiff for Barbara were “unusual” within the meaning of the applicable provision of the divorce judgment, would not be against the great weight of the evidence:

Dr. E. W. Pawsat, medical services $ 68.00
Dr. Hitzelberger 10.00
Dana & Worm, drugs and medicines 28.75
Dr. James Kalk, X rays 21.00
Total: $127.75

Dr. Pawsat had treated Barbara for virus skin infection, thyroid goiter, kidney malfunction, and swimmer’s ear infection and his bill was for services in rendering such treatment. Dr. Hitzelberger had also treated the virus skin infection; Dana & Worm are pharmacists. Their bill was for drugs and medicines prescribed by Drs. Pawsat and Hitzelberger in treating Barbara’s aforementioned ailments. Dr. Kalk’s bill was for X rays taken in connection with fitting Barbara’s teeth with braces. Defendant cannot be heard to complain that the trial court did not pinpoint items aggregating $100 when a finding of $127.75 of unusual medical and drug expenses would have been warranted by the record.

The two principal points of attack made by defendant on the portion of the order which modified the judgment so as to increase the support payments by $20 per month are: (1) There was no change of circumstances shown which would warrant modifying the support-payment provision of the judgment; and (2) there is no assurance that Barbara will attend summer camp next year or in any subsequent year until she reaches her majority while under the court’s order defendant is required to continue payment of the $20 per month until she reaches age twenty-one.

Defendant points out that the original provision for payment of support money which was inserted in the judgment was grounded upon a stipulation of the parties. Therefore, it is urged that, in entering into the stipulation, the parties must have had in contemplation the matter of Barbara’s going to summer camp. We do not consider that the trial court was bound to adopt such an assumption. Five years have passed since the original order. Barbara is now fifteen and one-half years old instead of ten. These are sufficient facts upon which to ground a determination of a change of circumstances.

The showing of a change of circumstances required in order to modify support-money or custody provisions of a divorce judgment is not jurisdictional but a rule of policy. Policy dictates that when a court has made a determination in this field on a certain state of facts it should be given the effect of res judicata so long as the factual situation has not materially changed. Cf. Miner v. Miner (1960), 10 Wis. (2d) 438, 441, 103 N. W. (2d) 4. This rule discourages the making of groundless requests for modification as well as the attempting to obtain a more-favorable ruling by bringing the petition before different judges. It also prevents a different judge new to the case from modifying the former judgment or order so as to substitute his own view of the matter. Since the welfare of the affected child, or children, is the primary objective to be considered, the change-of-circumstances rule should not be so restrictively applied as to defeat this objective.

If Barbara fails to attend summer camp during any year in which defendant is required to pay the additional $20 per month for such purpose, his remedy is to apply to the circuit court for a further modification of the support-money payment provision of the judgment as now modified. Even if defendant does not discover such failure to attend camp until the lapse of some months, the circuit court would have the power to grant retroactive relief by reducing future support payments until the amount of any overpayments on defendant’s part had been recouped.

The evidence established that defendant’s gross earnings are $1,183.33 per month, and his net pay check after all deductions is $450.08 per month. However, included in the deductions is $427.68 per month for the purchase of American Telephone & Telegraph Company stock by defendant. Therefore, the requirement of paying $20 additional monthly will hardly impose undue hardship on defendant.

Upon this record we find no abuse of discretion by the trial court in ordering defendant to pay the additional $20 per month toward the annual expense of sending Barbara to summer camp. See Kritzik v. Kritzik, supra, at page 449, where we pointed out why sending a child to summer camp is likely to promote the child’s best interests.

By the Court. — Order affirmed.


source: Caselaw Access Project

author: Heffernan, J.

license: Public Domain

text:
    Presti, Respondent, v. O'Donahue, d/b/a O'Donahue Industries, Appellant.

      October 28

    November 24, 1964.

      For the appellant there was a brief and oral argument by George D. Young of Milwaukee.
    For the respondent there was a brief and oral argument by Burton A. Strnad of Milwaukee.
   Heffernan, J.

The defendant-appellant challenges the verdict of the jury and the decision of the trial judge upholding the jury’s actions. He contends that greater weight of the plaintiff’s own testimony indicates that the accident did not happen as the jury and trial court concluded, and that if there was any negligence involved it was the negligence of the plaintiff in failing to use the device (the steel plate) properly.

Our conclusion is that all of the findings have adequate support in the evidence and that there was no error in ordering judgment for the plaintiff.

Negligence of the Plaintiff.

The defendant contends that the sole cause of the accident was the plaintiff’s failure to exercise proper care, since he could have moved the truck farther from the dock and thus would have eliminated the overhang which allegedly caused the accident. This contention overlooks testimony that indicated that to do that would have introduced a new danger, that of having the plate slip from the truck and, as the witness Breslauer said, “fall through.”

The standard of care' required by the plaintiff, a frequenter, was not that of the highest degree of caution, for all that is required is the exercise of ordinary care. If the frequenter lives up to that standard, he is free of negligence and need not take any of the unusual precautions that the defendant suggests:' ■ There is no evidence that the plaintiff failed to follow the usual and. customary method of unloading the truck. To do so is not negligence. Neitzke v. Kraft-Phenix Dairies, Inc. (1934), 214 Wis. 441, 253 N. W. 579.

The jury found no negligence on the part of the plaintiff. It was sustained in its judgment by the trial court. No reasonable cause has been advanced to show that the plaintiff was negligent or that the jury failed to make a decision on the basis of the evidence before it. On the contrary,' it appears from the record that the'verdict is supported by the evidence.' ' \ ;

Whatever conflict there was in the record was resolved by the jury in favor of the plaintiff. The jury had the opportunity to observe the demeanor of the witnesses, and it was for the jurors, not for us, to determine the weight to be given to the various statements. In addition, the findings of the jury were approved by the trial court. Under these circumstances we can only rely on the decision of the trial court. Shaurette v. Capitol Erecting Co. (1964), 23 Wis. (2d) 538, 548, 128 N. W. (2d) 34. The question for us to decide is whether there was any credible evidence under any reasonable view to support the jury’s findings. It is evident that there was. The appellant’s counsel admits this in his brief, but contends that the weight of plaintiff’s own testimony is contrary to a finding of liability upon the defendant. That is not a question to be decided by this court, and having found credible evidence to support the verdict of the jury and the decision of the trial court, we cannot pursue the matter further.

Negligence of the Defendant.

It seems equally clear that the verdict finding causal negligence of the defendant must be sustained. The evidence taken in a light most favorable to the verdict indicates that the failure to provide a more-adequate dockboard would support a finding of negligence.

An expert witness testified that angled, bevel-edged dock-boards were in common use in Milwaukee. The evidence showed that the beveled edge would have avoided the overhang of the steel plate and, consequently, a barrel truck could have been pushed smoothly onto the dockboard, and the angle would have compensated for the difference in heights between the truck and the dock.

On the basis of this evidence, the jury could decide that the steep angle and the projecting edge of the steel plate were the cause of the plaintiff’s injuries, and that the defendant had failed to maintain the degree of safety required by the statute. They could have considered the relatively low cost at which a more efficient and safer dock-board might have been provided. Venden v. Meisel (1957), 2 Wis. (2d) 253, 85 N. W. (2d) 766.

The plaintiff unloaded the truck in his customary way with the dockboard placed there for the purpose by the defendant. The dockboard proved to be unsafe for the purpose intended and the jury found that the defendant was “negligent in failing to maintain the docking facilities as free from danger as the nature of the facilities reasonably permitted.” The standard of care required under the safe-place statute is higher than that which is required under the common law — the place must not only be safe but as safe as the nature of the place will reasonably permit. Krause v. Menzner Lumber & Supply Co. (1959), 6 Wis. (2d) 615, 95 N. W. 374. While this does not mean that the employer had a duty to furnish devices that would insure the safety of a frequenter, it does mean that the jury may determine whether the employer might not have supplied devices that would have made the place as safe as its nature would reasonably permit. The jury may, as it apparently did here, look to the technology of the business and determine that devices reasonably available to the employer might have been used to meet the standard of care required by the statute. The failure to meet this standard constitutes negligence under the safe-place statute.

It is necessary under the statute that the defendant have notice, actual or constructive, of an unsafe condition. Longberg v. H. L. Green Co. (1962), 15 Wis. (2d) 505, 113 N. W. (2d) 129, 114 N. W. (2d) 435. The evidence is undisputed that plaintiff told an employee of the defendant several weeks prior to the accident that the steel plate was unsafe to use as a dock bridge. This is actual notice of the unsafe condition. The defendant cannot now complain that he did not know of the hazard.

By the Court. — Judgment affirmed.


author: Fairchild, J.

text:
    Fisher, Plaintiff and Appellant, v. Gibb and others, Defendants: Bothum and others, Defendants and Respondents.

      October 28

    November 24, 1964.

      For the appellant there was a brief by Wickham, Bor-gelt, Skogstad & Powell, attorneys, and Clayton R. Hahn and Donald R. Peterson of counsel, all of Milwaukee, and oral argument by Mr. Hahn and Mr. Peterson.

    For the respondents Robert E. Bothum and Allstate Insurance Company there was a brief by Kivett & Kasdorf, attorneys, and A. W. Kivett of counsel, all of Milwaukee, and oral argument by A. W. Kivett.

    For the respondent International Harvester Company there was a brief by Prosser, Zimmermann & Wiedabach of Milwaukee, and oral argument by Frederick H. Prosser.

       Motion for rehearing denied, with costs, on February 2, 1965.

   Fairchild, J.

Plaintiff concedes that the record contains credible evidence to sustain the finding that Bothum was not negligent. On this appeal she makes only three claims: (1) It was error to refuse to allow plaintiff to read into evidence a portion of Bothum’s testimony upon adverse examination before trial; (2) Bothum was, as a matter of law, the agent of International Harvester; (3) it was error to exclude certain evidence on the agency question. As we are of the opinion that the exclusion of the offered evidence on the negligence issue was not prejudicial, we need not reach the latter two claims.

1. If the exclusion of portions of Bothum’s deposition was error, was it prejudicial? The Gibb car was traveling about 45 miles per hour, and was maintaining the same interval between it and the other westbound cars. Bothum estimated his speed at 35 to 40 miles per hour. There was evidence from which the jury might find that Miss Gibb negligently permitted the right wheels of her car to get off the pavement and that in turning back, her car went into a skid and crossed over upon the eastbound lane. The evidence also amply supported a finding that the Gibb car went onto and across the eastbound lane so short a distance ahead of Bothum that he could do nothing to avoid a collision. Apparently the jury so found.

In order to establish Bothum’s negligence under the circumstances, it would be necessary for plaintiff to persuade the jury that when the Gibb car invaded the eastbound lane there was a sufficient interval of space and time so that Bothum could be held responsible for failure to take effective action.

Miss Gibb testified that, while skidding, her car was going down the highway at a 45-degree angle; that after she skidded out, when she first saw the Bothum car, there were perhaps 100 feet between them; that the impact occurred almost immediately after the front end of her automobile crossed into the other lane.

Mr. Blanke, the driver of the second car behind the Gibbs, testified that the collision occurred almost instantly after the Gibb car entered the eastbound lane. Mrs. Blanke saw the rear of the Gibb vehicle slide on the right shoulder and kick up snow and gravel. After it changed its direction to southwesterly she closed her eyes.

Mr. Bothum testified that the Gibb car was about 50 feet ahead of his car when it first came into his lane.

The testimony which placed the two cars farthest apart when the Gibb car entered the eastbound lane was that of Mr. Gibb. He was seated in the back seat and looked up as the Gibb car was starting to move toward the eastbound lane; he felt they were in a skid; he then first saw the Bothum car, and thought it was somewhere near 300 feet away. At 40 miles per hour, Bothum would travel 50 feet in less than one second, 100 feet in less than two seconds, 300 feet in five seconds.

Before pleading, plaintiff had examined Bothum pursuant to sec. 326.12, Stats. Plaintiffs counsel attempted to read three portions of the deposition which could be interpreted to mean that Bothum thought that ten to fifteen seconds elapsed from the time the Gibb car turned into the eastbound lane until the impact occurred. On page 27 of the deposition Bothum said he had seen the Gibb car “as it turned out to pass.” On page 31 he said that when he first saw it, it was “turning out to pass.” On page 41 these questions and answers appeared:

‘Q. How much time elapsed between when you first saw the Gibb vehicle and the actual impact? A. Just very brief, sir.
“!Q. Well, as much as ten seconds? A. I would imagine about that, sir.
‘Q. Could it be as much as fifteen? A. Well, say ten to fifteen.
‘Q. When did you next observe the Gibb vehicle? A. As I was coming out of a daze after being knocked out.
‘Q. So then you only made one observation of the Gibbs’ vehicle and that was when it was beginning to pass, is that right? A. Right.
‘Q. So you don’t know if it swerved or anything like that? A. No, it just came out to pass.’ ”

Counsel for the Gibbs objected to the reading, asserting that the “turning out to pass” was a conclusion. Counsel for International Harvester objected because it had not been a party at the time the deposition was taken.

At the trial Bothum testified that he saw the line of westbound cars coming around a gradual curve when there were about 2,000 feet between him and them; that from the first time he saw the Gibb car come across to his side of the highway until the collision was “just briefly, a second;” that, “It was ten seconds from the first — or, ten to fifteen from the first that I observed the car until it came on up; but when it pulled out to pass, of course, it was just a brief second; ” that he first saw the Gibb car as it was coming around the curve in the line of cars.

The difference between Bothum’s testimony at trial and the portions of his earlier deposition was that at trial he testified to having first seen the Gibb car as one of a line of westbound cars 2,000 feet from him (17 seconds assuming a combined speed of 80 miles per hour) and having seen the Gibb car enter his lane at about 50 feet from him (less than one second) while in his deposition he said at one point that he first saw the Gibb car as it entered his lane (“turned out to pass”) and at another point said that he first saw the Gibb car ten to fifteen seconds before the collision (600 to 900 feet away if only Bothum’s speed be considered; 1,200 to 1,800 feet away if a combined speed of 80 miles per hour be assumed). Yet all the other testimony indicated that the Gibb car suddenly entered the eastbound lane at an angle, with only a very short distance left between it and the Bothum car and only a very short interval of time before the collision. It seems highly probable that Bothum did not mean in his deposition to say that the Gibb car entered his lane ten to fifteen seconds before the impact, and that the jury would not have so interpreted the deposition in the face of all the other testimony. We conclude accordingly that if the offered portions of the deposition had been received it is highly improbable that the verdict would have been more favorable to plaintiff. Thus if the exclusion of these portions was error, we do not deem it prejudicial.

The record does not clearly show whether or not counsel for Gibb and his insurer may have waived their objection to the offered portions of the deposition by failure to object at the time it was taken. Assuming, however, that the objections of both Gibb and International Harvester were valid, the court could have received those portions, and given an instruction that those portions were to be considered only as against Bothum.

2. Plaintiffs right to offer the deposition. A deposition may be used by any party for the purpose of contradicting or impeaching the testimony of the deponent as a witness. Respondents, Bothum and his insurer, contend that the offered portions of the deposition did not contradict or impeach Bothum’s testimony at trial. The circuit court apparently agreed. As is evident from the foregoing discussion, we consider that the offered portions of the deposition were open to an interpretation inconsistent with Bothum’s testimony at trial. Accordingly plaintiff had a right under sec. 326.12 (7) (a), Stats., to introduce these portions as against Bothum.

Furthermore, in excluding the offered portions of the deposition, the circuit court appears to have concluded that sec. 326.12 (7) (b), Stats., does not authorize a party to offer a deposition of an adverse party if the deposing party is present at the trial. The parties have argued this question, and we deem it important to decide it.

Sec. 326.12 (5), Stats. 1959, provided:

“Use of deposition. Such portions of any such deposition as are relevant to the issues may be offered by the party taking the same, and shall be received when so offered upon the trial of action or proceeding in which it is taken, notwithstanding the deponent may be present.”

If that statute were still in force, there could be no question of plaintiff’s right to have any relevant portion of Bothum’s deposition received in evidence even though Both-um was in court.

Ch. 113, Laws of 1961, repealed sec. 326.07, Stats., and repealed and re-created sec. 326.12. Prior to that time sec. 326.12 had authorized the taking of depositions only of an adverse party or a person standing in one of several specified relationships to an adverse party. Authority to take depositions of other possible witnesses was limited to the situations specified in sec. 326.07. New sec. 326.12 permitted any party to take the deposition of any person and the portion of the section authorizing the use of depositions was necessarily redrafted. Obviously many persons could be examined under new sec. 326.12 who could not have been examined under the old section.

Sec. 326.12 (7), Stats., authorizes the use of any part or all of a deposition, so far as admissible under the rules of evidence, in accordance with any one of three provisions, (a), (b) or (c). Par. (a) authorizes any party to use any deposition to contradict or impeach the testimony of the deponent as a witness. Par. (c) authorizes any party to use the deposition of a witness, whether or not a party, if certain conditions are fulfilled, generally having to do with availability of the witness. Par. (b), however, corresponds generally to sec. 326.12 (5), Stats. 1959, dealing with the use by one party of the deposition of an adverse party or of a person standing in a specified relationship to an adverse party where the latter is a corporation, partnership, or association. Sec. 326.12 (7) (b), Stats., provides:

“The deposition of a party or of any one who at the time of taking the deposition, or at the time of the occurrence of the facts made the subject of the examination, was an officer, director, agent or employe of a public or private corporation, partnership, or association which is a party, may be used by an adverse party for any purpose, subject to the limitations prescribed in s. 325.27, relating to admissions by members of corporations.”

Obviously the phrase “notwithstanding the deponent may be present,” which appeared in sec. 326,12 (5), Stats. 1959, does not appear in present sec. 326.12 (7) (b). There has been substantial redrafting of the statutory language, however, and we find no implication from the mere absence of this phrase that a deposition which would otherwise be admissible under sub. (b) is not admissible if the deponent be present.

We have reviewed the history of former sec. 326.12, Stats., and of the enactment of present sec. 326.12 by ch. 113, Laws of 1961.

The first statutory provisions allowing an adverse examination of a party before trial appeared as secs. 54 and 55 of ch. 137, R. S. 1858. Sec. 54 provided that a party could be “examined as a witness” at the instance of an adverse party; sec. 55 provided that the examination “may be read by either party on the trial.”

The statute was revised and became sec. 4096, R. S. 1878. As revised, the statute made no mention of the use of the deposition at the trial. This court in 1887, however, had no difficulty in deciding that the party taking the deposition of an adverse party was entitled to have it received in evidence at the trial notwithstanding the presence of the deponent. The court noted:

“. . . The examination of a party is in the nature of an admission so far as his answers are material to the issues in the action, and such admissions are always admitted as original evidence against him.”

The same rule was followed by the court in later cases.

The statute was amended in 1882 so as to allow an adverse examination of an officer or managing agent of a corporate party. By ch. 244, Laws of 1901, the scope was extended to include assignees, agents and employees of a party, and agents and employees of a corporate party or who were so at the time the facts giving rise to the cause of action occurred. The- court held that the statute made an officer of a corporation “in effect a party, so that his examination becomes independent evidence in the case, notwithstanding his presence in court. . . .” However, it was held that an employee was a witness and not a party, and that the deposition of an employee could not be read if the employee were present in court. It is clear • that. the court considered the examinations of a party or .an officer of a party admissible under general rules of evidence governing admissions of a party.

By ch. 246, Laws of 1913, the following sentence was added to the statute:

“Such portions of any such examination or examinations of any of the persons mentioned as are relevant to the issues in the case may be offered by the party taking any such examination or examinations and shall be received upon the trial of the action or proceeding in which it is taken, notwithstanding the person who was so examined may be present at the trial or proceeding.”

In Thomas v. Lockwood Oil Co. the court noted that prior to the 1913 amendment, a party could not have used the deposition of the employee of an adverse party where the deponent was available as a witness. The court stated that the 1913 amendment evidently was for the purpose of changing that rule.

Cases decided after the 1913 amendment continued to refer to the Meier Case and to the proposition that the adverse examination of a party is in the nature of an admission. The statute was revised in 1927, and sub. 5 appeared in the form it retained until ch. 113, Laws of 1961.

It thus appears that the admissibility of the deposition of a party when offered by an adverse party was not dependent upon the phrase, inserted in 1913, “notwithstanding the person who was so examined may be present. ...”

Bill No. 597, S., 1959 session, and a similar Bill No. 294, A., 1961 session, were sponsored by the Milwaukee Junior Bar Association. Bill No. 597, S., 1959 session, was not enacted, but Bill No. 294, A., 1961 session, became ch. 113, Laws of 1961. The drafting records of the legislative reference library contain an explanatory statement regarding Bill No. 597, S., 1959 session. Although the statement lists ten objectives, none of them indicates a purpose to prevent the use at trial of a deposition of an adverse party when the latter is present.

We conclude that the absence from sec. 326.12 (7) (b), Stats., of the phrase “notwithstanding the deponent may be present” is without significance. Any portion of the deposition of a party relevant to the controversy is to be received as an admission when offered in evidence by a party adverse to the deponent. It was error to exclude the portions of Bothum’s deposition offered by plaintiff, although, as heretofore stated, the error is not deemed prejudicial under the circumstances.

By the Court. — Judgment affirmed.

        Holtz v. Fogarty (1955), 270 Wis. 647, 650, 72 N. W. (2d) 411; Carson v. Pape (1961), 15 Wis. (2d) 300, 307, 112 N. W. (2d) 693; Yingling v. Tic (1962), 16 Wis. (2d) 474, 477, 114 N. W. (2d) 815.

       Sec. 326.12 (5) (b), Stats.

       McCormick, Evidence (hornbook series), p. 136, sec. 59; Johnston v. Hamburger (1860), 13 Wis. 195 (*175); Chapman v. Chicago & N. W. R. Co. (1870), 26 Wis. 295, 303.

       Sec. 326.12 (7) (a), Stats.

        Meier v. Paulus (1887), 70 Wis. 165, 171, 35 N. W. 301.

       See Wunderlich v. Palatine Fire Ins. Co. (1899), 104 Wis. 382, 385, 80 N. W. 467; Gutzman v. Clancy (1902), 114 Wis. 589, 595, 90 N. W. 1081.

       Ch. 194, Laws of 1882.

        Johnson v. St. Paul & Western Coal Co. (1906), 126 Wis. 492, 503, 105 N. W. 1048. And see J. H. Clark Co. v. Rice (1906), 127 Wis. 451, 106 N. W. 231.

        Hughes v. Chicago, St. P., M. & O. R. Co. (1904), 122 Wis. 258, 271, 99 N. W. 897; Anderson v. Chicago Brass Co. (1906), 127 Wis. 273, 283, 106 N. W. 1077; Zoesch v. Flambeau Paper Co. (1908), 134 Wis. 270, 280, 114 N. W. 485.

       (1921), 174 Wis. 486, 497, 182 N. W. 841.

        Lange v. Heckel (1920), 171 Wis. 59, 69, 175 N. W. 788; Leslie v. Knudson (1931), 205 Wis. 517, 520, 238 N. W. 397; Estate of Shinoe (1933), 212 Wis. 481, 486, 250 N. W. 505; Frawley v. Kittel (1949), 254 Wis. 432, 436, 37 N. W. (2d) 57.

       Ch. 523. sec. 49. Laws of 1927.


author: Hallows, J.

text:
    F. F. Mengel Company, Respondent, v. Village of North Fond du Lac, Appellant.

      October 28

    November 24, 1964.

      For the appellant there was a brief by Edgarton & Hobbs of Fond du Lac, and oral argument by Neil Hobbs.

    For the respondent there was a brief by Chambers, Nash & Pierce of Wisconsin Rapids, and oral argument by Lloyd L. Chambers.

   Hallows, J.

The issue presented is whether the village of North Fond du Lac is the proper assessment district to assess personal-property taxes on the steel.

No serious question is raised that the steel is not subject to taxation by the state under sec. 70.01, Stats., which requires taxes, to be levied upon all general property in the state except as is exempt therefrom. While the plaintiff argues the steel was impressed with a trust for the úse and benefit of the state of Wisconsin and therefore was exempt from taxation under sec. 70.11 (1), relying on State ex rel. Wisconsin University Building Corp. v. Bareis (1950), 257 Wis. 497, 44 N. W. (2d) 259, we believe the trial court correctly disposed of this argument on the ground the steel had not been accepted by the state of Wisconsin or paid for so as to be appropriated by the state.

Both parties rely on Cady v. Alexander Construction Co. (1960), 12 Wis. (2d) 236, 107 N. W. (2d) 267, 108 N. W. (2d) 145, as authority for their respective views. The plaintiff contends the steel did not acquire a fixed location in the village within the meaning of sec. 70.13, Stats., so as to allow the village to assess it. The defendant contends to the contrary. Sec. 70.13, which governs the place where personal property is to be assessed, provides a comprehensive scheme for taxing personal property by recognizing four classes of personal property for the purpose of determining where personal property should be taxed. Property having a fixed location is taxed in the district of that location. Property having no fixed location but customarily kept in one location is taxed where it is customarily kept. Property in transit on the assessment date and which necessarily is not located or customarily kept any place is taxed where it is intended to be kept or located. Finally, personal property which has no fixed location and not customarily kept for use in one location is taxed in the district where its owner or the person in charge of or in possession thereof resides. Wisconsin Transportation Co. v. Williams Bay (1932), 207 Wis. 265, 240 N. W. 136.

In Williams Bay we construed the phrase “customarily kept” of this section and held the keeping and storage of boats during the winter in a taxing district fulfilled the requirement against a claim the boats had no fixed location and should be taxed at the residence of the owner. In Middleton v. Lathers (1933), 213 Wis. 117, 250 N. W. 755, we held highway equipment having no fixed location and which was moved about the state from job to job but kept in a municipality several winters for storage, repairs and some snowplowing was not customarily kept in such municipality and was taxable at the residence of the owner. In O’Keefe v. De Pere (1960), 9 Wis. (2d) 496, 101 N. W. (2d) 649, we dealt with property admittedly having no fixed location and held the residence of a partnership-owner for the purpose of this section was its permanent place of business. By analogy, the residence of a corporation would be at its principal place of business.

In Cady, which dealt with both the “taxable situs” to allow the state to tax and a fixed location to allow the town of Cady to tax as a proper district, we stated “situs” meant “more than simply the place where the property is physically present” and the state must have sufficient contact or relationship with the property in order to form in fairness a basis for taxing it. The term “is located” in sec. 70.13 (1), Stats., means having a fixed location as that term is used in the same subsection; not fixed, however, in the sense of absolute permanency but having a meaning of more permanency than temporarily and also greater than customarily kept.

While the intention of the owner to move or remove personal property from a taxing district and the nature of the property do not necessarily determine the classification of the property under sec. 70.13, Stats., they are factors to be considered. We pointed out in Cady, the property’s use and presence under the facts of each case determine where it should be assessed.

Here, the steel was physically present in the village, lying along the railway right-of-way temporarily; it was not in a warehouse or stored. It was purchased for use in constructing a public highway and the village was but a temporary resting place. The steel arrived some three weeks before the assessment day and its removal commenced four days after assessment day and continued for approximately six weeks. The owner’s intention was to remove it and it was so removed. Upon its intended use it was no longer identifiable as personal property but it might be said it had a “fixed location” as a part of U. S. Highway 41.

The presence of the steel in the village was not like a merchant’s stock-in-trade or a manufacturer’s inventory. Such property is considered to have some permanency in its location for the purposes of its owner’s business. Typical examples of such personal property subject to tax are lumber, timber, and shingles held for resale in a lumberyard. Mitchell v. Plover (1881), 53 Wis. 548, 11 N. W. 27; lumber kept for sale although the sale was not made at the place where the lumber was located, Sanford v. Spencer (1885), 62 Wis. 230, 22 N. W. 465; and ice cut and stored in the warehouse whether kept for sale or not, State ex rel. Lake Nebagamon Ice Co. v. McPhee (1912), 149 Wis. 76, 135 N. W. 470.

We think the trial court was correct in finding the steel had no fixed location in the village of North Fond du Lac within the meaning of sec. 70.13 (1) and therefore the defendant was without power to impose the tax and the plaintiff is entitled to its recovery.

By the Court. — Judgment affirmed.

       “70.13 Where personal property assessed. (1) All personal property shall be assessed in the assessment district where the same is located or customarily kept except as otherwise specifically provided. Personal property in transit within the state on the first day of May shall be assessed in the district in which the same is intended to be kept or located, and personal property having no fixed location shall be assessed in the district where the owner or the person in charge or possession thereof resides, except as provided in subsection (5) of this section.”


author: Gordon, J.

text:
    Brunette, by Guardian ad litem, and another, Appellants, v. Dade and another, Respondents.

      October 29

    November 24, 1964.

      For the appellants there was a brief by Vaudreuil & Vaudreuil of Kenosha, and oral argument by Leo E. Vaud-reuil.

    For the respondents there was a brief by Heide, Sheldon, Hartley & Thom and W. A. Sheldon, all of Kenosha, and oral argument by W. A. Sheldon.

   Gordon, J.

Right-oj-Way.

The trial court determined that Mr. Brunette was causally negligent as a matter of law in failing to yield the right-of-way. Upon this appeal, it is pointed out that when Mrs. Dade approached the intersection she came to a complete stop. It is urged that this act constituted a waiver of her right-of-way. It is not contended that her coming to a stop transferred her right-of-way to Mr. Brunette; the appellants acknowledged that right-of-way, being wholly statutory, cannot be transferred from one driver to a competing driver. Granger v. Mutual Service Casualty Ins. Co. (1963), 19 Wis. (2d) 302, 120 N. W. (2d) 140; Reynolds v. Madison Bus Co. (1947), 250 Wis. 294, 26 N. W. (2d) 653. However, it is strenuously urged that the court erred in determining as a matter of law that Mr. Brunette was obliged to yield the right-of-way to a driver who had stopped at the approach to the intersection even though there was no stop sign or other requirement for such stopping.

Sec. 346.18, Stats., provides that the vehicle on the left shall yield the right-of-way to the vehicle on the right. Mrs. Dade was driving the vehicle on the right and would normally enjoy the right-of-way over another vehicle which approached at approximately the same time. The statute goes on to provide:

“The operator of any vehicle driving at an unlawful speed forfeits any right of way which he would otherwise have under this subsection.”

The appellants’ contention would require us, in effect, to interpret the statute to mean that one with the directional right-of-way may forfeit it not only by unlawful speed but by unnecessarily stopping at the threshold of the intersection. We decline to do so. In our opinion, the trial court correctly determined upon these facts that the vehicle on the left was negligent as a matter of law in failing to yield the right-of-way to the vehicle on the right. This is true notwithstanding the fact that the evidence shows that the favored vehicle came to a stop which was not required by the rules of the road.

Brunette's Negligence as to Lookout.

Mr. Brunette suffered retrograde amnesia as a result of the accident and had no memory as to the events just before the accident. Mrs. Dade testified that she did not see any vehicle approaching from the east, to her left. She further testified that she did not see the motorcycle before the actual crash. Nevertheless, the jury found that Mr. Brunette was causally negligent with respect to lookout, and such finding is challenged on this appeal.

The appellants rely on a claimed presumption of due care, which will be considered subsequently, and also urge that it can be assumed that Mr. Brunette observed Mrs. Dade bring her vehicle to a complete stop and thought that she intended to let him cross the intersection ahead of her.

On the other hand, the respondents refer to the fact that the Brunette vehicle struck the left side of Mrs. Dade’s automobile at a time when Mrs. Dade was traveling at a very-slow speed. The front of the motorcycle collided with the .left side of Mrs. Dade’s automobile. Respondents further point out that there were no skid marks or evidence that Mr. Brunette deviated or endeavored to stop before the impact. In our opinion, this constituted sufficient credible evidence to support the jury’s determination that there was negligence as to lookout on the part of Mr. Brunette. In Wells v. Dairyland Mut. Ins. Co. (1957), 274 Wis. 505, 512, 80 N. W. (2d) 380, this court stated as follows:

“In cases involving a driver, who is unable to testify as to the lookout he maintained immediately prior to a collision because of death or amnesia, he ordinarily cannot be found guilty of causal negligence as to both lookout and management and control. If there is no evidence from which it can reasonably be inferred that he saw the object collided with, then his negligence consists of lookout and not management and control.”

Mr. Brunette’s vehicle ran into the slow-moving automobile of Mrs. Dade without leaving any skid marks to suggest that an effort to stop was made. The jury must have deemed this to prove that he did not see her car, and we cannot hold that this is error as a matter of law.

We recognize that the evidence in support of the finding as to Mr. Brunette’s lookout is skimpy. However, it is also true that we have frequently been confronted with cases in which there is only a small amount of direct evidence. La Vallie v. General Ins. Co. (1962), 17 Wis. (2d) 522, 526, 117 N. W. (2d) 703. Furthermore, evidence must be viewed in the light most favorable to the verdict, and findings which have been approved by the trial court are not to be disturbed if they are supported by credible evidence. Ide v. Wamser (1964), 22 Wis. (2d) 325, 126 N. W. (2d) 59.

Presumption of Due Care.

The trial court interrupted Mr. Brunette’s counsel during the course of the latter’s argument and said to the jury:

“The jury will not consider any argument on presumptions whatever in this case. There is no question of presumption to be considered by the jury and I will ask counsel to refrain from that argument.”

Upon this appeal, it is argued by the appellants that the court erred in this ruling in the presence of the jury. In our opinion, the court’s interruption was entirely correct. Having concluded that Mr. Brunette was negligent as a matter of law in not yielding the right-of-way, and there being some credible evidence as to his negligence as to lookout, the presumption of due care which he might otherwise have enjoyed became wholly dissipated. In Atkinson v. Huber (1955), 268 Wis. 615, 618, 68 N. W. (2d) 447, we stated:

“This court is committed to the doctrine that where, in a negligence case, evidence is introduced which would support a jury finding contrary to the presumption that a deceased person or one who has suffered amnesia exercised due care for his own safety, the presumption is eliminated and drops out of the case entirely and no instruction upon that subject should be given to the jury.”

More recently, in Voigt v. Voigt (1964), 22 Wis. (2d) 573, 583, 126 N. W. (2d) 543, we pointed out that the presumption of due care accorded to a deceased party is a limited presumption and is eliminated upon the receipt of evidence from which negligence on the part of the deceased driver may be inferred. See McCarty v. Weber (1953), 265 Wis. 70, 73, 60 N. W. (2d) 716.

We conclude, therefore, that any presumption of due care on the part of Mr. Brunette had vanished, and the trial court’s admonition to the jury to disregard counsel’s argument concerning the presumption was not only proper but was necessary.

By the Court. — Judgment affirmed.


author: Wilkie, J.

text:
    Alexander and another, Appellants, v. Farmers Mutual Automobile Insurance Company, Respondent.

      October 29

    November 24, 1964.

      For the appellants there was a brief by Vaughn S. Conway and Kenneth H. Conway, both of Baraboo, and oral argument by Vaughn S. Conway.

    For the respondent there was a brief by Longer, Cross & Langer of Baraboo, and oral argument by Clyde C. Cross.

   Wilkie, J.

The principal issue on this appeal is whether Mrs. Alexander can be compelled, under sec. 269.57 (1), Stats., to produce a consulting doctor’s medical report for inspection by respondent. Her contention that the report does not have to be offered for examination runs headlong into decisions of this court in Thompson v. Roberts and Leusink v. O’Donnell. In Thompson and Leusink, as in the present case, the doctor who prepared the coveted report did not actually treat the plaintiff for injuries caused by the accident. These cases held that reports regarding the plaintiff’s condition prior to the accident were subject to inspection by the defendants. A fortiori a report based on injuries received in the accident must be available to respondents.

Appellants contend that Leusink and Thompson should be overruled since the court failed to take notice of the legislative history of sec. 269.57 (1), Stats., in deciding them. Reference cannot be made to legislative history unless the statute is ambiguous. Implicit in Leusink and Thompson is the court’s feeling that sec. 269.57 (1) was plain and unambiguous, thus making a resort to history improper. At any rate, any intent considered would have to be that of this court since the present sec. 269.57 (1) resulted from a consolidation of two existing sections by supreme court rule in 1934. The court’s interpretation of its own intent is clearly enunciated in Leusink and Thompson.

Appellants take the position that the privilege of communication between a physician and his patient guaranteed by sec. 325.21, Stats., is controlling over any right of inspection acquired under sec. 269.57 (1). This contention was rejected in Prudential Ins. Co. v. Kozlowski where the court stated, at page 644:

“The reason of the rule of the statute, [325.21] as far as it has any, is that patients may be afflicted with diseases or have vicious or uncleanly habits necessary for a physician to know in order to treat them properly, disclosure of which would subject them to humiliation, shame, or disgrace, and which they might refrain from disclosing to a physician if the physician could be compelled to disclose them on the witness stand. Boyle v. Northwestern Mutual Relief Asso. 95 Wis. 312, 70 N. W. 351. If the disclosures to the physician be such as not to subject the patient to shame or affect his reputation or social standing, there is no reason why a physician should not disclose them, and sound reason why in the interest of truth and justice he should be compelled to disclose them. The physician’s exemption from disclosure should in reason be limited to such disclosures as would injure the patient’s feelings or reputation. The statute too often works, as stated by Mr. Justice Owen in his dissenting opinion in Maine v. Maryland C. Co. 172 Wis. 350, 359, 178 N. W. 749, ‘to cheat rather than to promote justice and to suppress rather than reveal truth.’ ”

Mrs. Alexander does not contend that she would be humiliated, shamed, or disgraced if the contents of Dr. Suckle’s report were revealed.

At any rate, Mrs. Alexander has waived any privilege in regard to the report by her consent directed to Dr. Suckle to allow investigation of “all X-ray photographs, hospital and medical records and other medical information of a documentary nature” concerning her injuries. The written consent was drafted and executed pursuant to sec. 269.46 (2), Stats., after appellant’s counsel agreed to the inspection of the medical records at the adverse examination. Appellant has never been relieved of her consent to the investigation as required by sec. 269.46 (1).

Any privilege as to Dr. Suckle’s report was also waived when the records of Dr. Pearson were examined. This court has held that:

“It would be most unjust and unfair to permit patients or their heirs to waive the privilege as to testimony of a physician who was favorable to their interest and claim the benefit of the privilege as to a, physician similarly situated who might not be favorable to their interest. When consent is given for the disclosure by one physician the reason for the statute no longer exists, and the waiver is a waiver of the whole privilege and not a consent to the introduction of the testimony of designated witnesses.”

Assume, arguendo, that contrary to Prudential and Leu-sink the inspection statute is deemed to conflict with the privilege provision. Sec. 269.57 (1), Stats., should nonetheless prevail since it is a remedial statute and to be construed liberally, while sec. 325.21, is to be strictly construed.

The final issue on this appeal is whether Mrs. Alexander’s action should be dismissed because she failed to obey the three orders of the trial court. The trial court possesses the power to dismiss an action in the interest of orderly administration of justice.

Some means must be available to enable the trial judge to rein in unco-operative parties. Appellant chose to ignore the first two orders before appealing the third. This caused a delay since the first order requiring Mrs. Alexander to allow inspection was appealable. Mrs. Alexander alleges serious injuries. Her complaint is confined to a cause of action for her injuries, and inspection by respondent of the report of Dr. Suckle was vital to the respondent’s defense against this complaint and the trial court did possess the power to order a dismissal of her entire action where she failed to comply with the inspection order. The interests of justice would be served, however, by providing her with one final opportunity to comply with the inspection order and for this reason the third order of the trial court should be modified to allow her fifteen days from remittitur within which to comply with the inspection provisions of the order. This is especially true since respondent has not been prejudiced by the delay.

By the Court. — Orders of May 1, 1964, and May 13, 1964, affirmed. Order of May 28, 1964, modified to allow appellant, Thelma Alexander, fifteen days from remittitur to comply with the terms of the order or have her complaint dismissed. Such order, as modified, affirmed.

       269.57 “(1) The court, or a judge thereof, may, upon due notice and cause shown, order either party to give to the other, within a specified time, an inspection of property or inspection and copy or permission to take a copy of any books and documents in his possession or under his control containing evidence relating to the action or special proceeding. . . .”

       (1955), 269 Wis. 472, 69 N. W. (2d) 482.

       (1949), 255 Wis. 627, 39 N. W. (2d) 675.

        State ex rel. Badtke v. School Board (1957), 1 Wis. (2d) 208, 83 N. W. (2d) 724; Estate of Ries (1951), 259 Wis. 453, 49 N. W. (2d) 483, 50 N. W. (2d) 397.

       212 Wis. XII. See Interpretive Comment, 31 W. S. A., p. 726.

       (1938), 226 Wis. 641, 276 N. W. 300.

       Reaffirmed in Leusink v. O’Donnell, supra, footnote 3, at page 632, 39 N. W. (2d) at page 677.

       Sec. 325.21 (1) (d), Stats., provides for waiver of the privilege with “express consent of the patient.”

       269.46 “(2) No agreement, stipulation or consent, between the parties or their attorneys, in respect to the proceedings in an action or special proceeding, shall be binding unless made in court and entered in the minutes or made in writing and subscribed by the party to be bound thereby or by his attorney.”

       269.46 “(1) The court may, upon notice and just terms, at any time within one year after notice thereof, relieve a party from a . . . stipulation or other proceeding against him obtained, . . . .”

        Cretney v. Woodmen Accident Co. (1928), 196 Wis. 29, 36, 219 N. W. 448, 450.

        Culligan, Inc., v. Rheaume (1954), 268 Wis. 298, 67 N. W. (2d) 279.

        Prudential Ins. Co. v. Kozlowski, supra, footnote 6.

         Latham v. Casey & King Corp. (1964), 23 Wis. (2d) 311, 314, 127 N. W. (2d) 225, 226, where the court stated: “Many times the power of dismissal is applied for noncompliance with an order relating to pleadings, such as an order to amend, to make more definite and certain, or furnish a bill of particulars. Motowski v. People’s Dentists (1924), 183 Wis. 477, 198 N. W. 465; Central Security Co. v. Milwaukee-Waukesha Brewing Co. (1917), 166 Wis. 249, 164 N. W. 994. In other cases the power is exercised for noncompliancé with orders in aid of discovery or inspection. Perhaps the greatest area of the exercise of the power is the failure to diligently prosecute a case.”

         Hudson v. Graff (1948), 253 Wis. 1, 33 N. W. (2d) 174.


author: Currie, C. J.

text:
    Chimekas and others, Appellants, v. Marvin and wife, Respondents.

      October 29

    November 24, 1964.

      For the appellants there was a brief by Hersh & Magid-son, attorneys, and Harry Lensky and Robert L. Hersh of counsel, all of Milwaukee, and oral argument by Arthur B. Magidson.

    For the respondents there was oral argument by Joseph W. Weigel of Milwaukee.
   Currie, C. J.

The trial court correctly held that the cause of action attempted to be pleaded in the complaint was one at law for fraud. While the word “warranted” is used in one place and “breach of warranty” in another, the other allegations clearly establish the nature of the action as one in tort for fraud and not in contract for breach of warranty.

While the complaint alleges that plaintiffs Chimekas assigned all their rights under the contract to plaintiffs Cha-loupkas, this is not an allegation that the former assigned their tort cause of action for fraud to the latter. Thus we reach the same conclusion as did the trial court with respect to the Chaloupkas not becoming assignees of the cause of action for fraud. The trial court, however, based its result upon the untenable reason that this type of tort action is not assignable. The accepted test of assignability of a cause of action is whether it survives the death of a party. P. C. Monday Tea Co. v. Milwaukee County Expressway Comm. (1964), 24 Wis. (2d) 107, 111, 128 N. W. (2d) 631; John v. Farwell Co. v. Wolf (1897), 96 Wis. 10, 17, 70 N. W. 289, 71 N. W. 109; 6 Am. Jur. (2d), Assignments, p. 214, sec. 30. Zartner v. Holzhauer (1931), 204 Wis. 18, 26, 27, 234 N. W. 508, 76 A. L. R. 396, holds that as the result of the 1907 amendment (ch. 353, Laws of 1907) to sec. 331.01, Stats., a cause of action for deceit in inducing a conveyance of real estate survives the defrauded party’s death. Such a cause of action, therefore, is assignable.

The fact that plaintiffs Chimekas made a gift of their rights under the contract does not affect the issue of whether they sustained any damages because of defendants’ alleged false representations. A defrauded vendee’s measure of damages is the difference between the value of the property as represented and its actual value as purchased. Anderson v. Tri-State Home Improvement Co. (1955), 268 Wis. 455, 464, 67 N. W. (2d) 853, 68 N. W. (2d) 705; Kimball v. Antigo Bldg. Supply Co. (1952), 261 Wis. 619, 621, 53 N. W. (2d) 701. Thus the complaint states facts sufficient to constitute a cause of action in favor of plaintiffs Chimekas.

Defendants cannot raise by demurrer the issue whether plaintiffs Chaloupkas are real parties in interest of the cause of action alleged in the complaint. When there is an excess of parties plaintiff, a motion to strike, and not a demurrer, is the proper procedure with which to challenge the complaint of a party plaintiff who has no interest in the subject matter alleged therein. Marshfield Clinic v. Doege (1955), 269 Wis. 519, 522, 69 N. W. (2d) 558; State ex rel. Kratche v. Civil Court (1923), 179 Wis. 270, 272, 191 N. W. 507. See also 2 Callaghan’s Wisconsin Pleading and Practice (3d ed.), p. 132, sec. 13.43, and Angers v. Sabatinelli (1940), 235 Wis. 422, 431, 432, 293 N. W. 173.

By the Court. — Order reversed, and cause remanded with directions to overrule the demurrer.


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

      October 30

    November 24, 1964.

      For the plaintiff in error there were briefs by Mount & Keck of Milwaukee, and oral argument by Herbert L. Mount.

    For the defendant in error the cause was argued by Betty R. Brown, assistant attorney general, and Ben J. Wiener, deputy district attorney of Milwaukee county, with whom on the brief were George Thompson, attorney general, William A. Plats, assistant attorney general, and William J. McCauley, district attorney.

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

   Fairchild, J.

In denying Myartt’s application, Judge Steffes emphatically stated that neither in Myartt’s case nor any other had he indicated in advance what the disposition of a case would be. He noted Myartt’s substantial past criminal record and the resulting impeachment of his credibility as well as the inference therefrom that Myartt was not misled. He pointed to the advice given Myartt in open court as to possible penalties. He expressed his confidence in the conduct of the attorneys involved. We are satisfied that Judge Steffes was not a party to any promise of probation or leniency, and that counsel did not misrepresent the situation to Myartt.

Aside from the claim of coercion or improper inducement,

“The question of the withdrawal of a plea of guilty or of nolo contendere is addressed to the discretion of the trial court. A decision to grant or deny a motion for withdrawal will not be disturbed on appeal unless it is shown to have been an abuse of discretion.”

We find no abuse of discretion here. Although Myartt had been in jail for about one year when he pleaded guilty, the record shows the preliminary examination on the possession charge was held February 26, 1962, and arraignment February 28, 1962. Thereafter there were frequent appearances in court and continuances, some on the motion of defense counsel, some by consent, and some without opposition. Notice of motion to suppress evidence was filed July 17th, and was heard and decided August 15, 1962. The complaint on the sale charge was filed August 20, 1962, this offense having allegedly occurred September 1, 1961. After a similar series of adjournments, the preliminary examination was held December 12, 1962, and arraignment occurred February 25, 1963.

Counsel for Myartt argues that the transcripts of the preliminary examinations indicate that the state’s evidence may have been insufficient to prove Myartt guilty beyond a reasonable doubt. We do not know whether the state had evidence which was not introduced on the preliminary examination. Assuming, however, that it did not, the transcripts contain testimony of law-enforcement officers which, if fully credited, would have supported conviction.

Although our writs of error brought the judgments here for review as well as the denial of leave to withdraw the plea of guilty, there was no separate challenge of the judgments.

By the Court. — Judgments and order affirmed.

        State v. Payne (1964), 24 Wis. (2d) 603, 604, 129 N. W. (2d) 250.


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

      October 30

    November 24, 1964.

      For the appellant there was a brief by Kenney, Korf & Pfeil of East Troy, and oral argument by Francis J. Korf.

    For the respondent the cause was argued by Betty R. Brown and William A. Plats, assistant attorneys general, with whom on the brief were George Thompson, attorney general, and William L. Seymour, district attorney of Wal-worth county.
   Hallows, J.

The first issue is whether there is a sufficiency of the evidence to support the jury’s verdict of a violation of the statute. In a criminal case as in a civil case the rule is, if there is any credible evidence which in any reasonable view supports the verdict it should not be disturbed on appeal. State v. Johnson (1960), 11 Wis. (2d) 130, 104 N. W. (2d) 379; State v. John (1959), 11 Wis. (2d) 1, 103 N. W. (2d) 304. The defendant contends: (1) That the legislature did not intend to cover operations such as those of the defendant, (2) that the word “principal” as used in the statute means “over 50 percent,” and (3) gambling was not a principal use of the premises.

In the defendant’s view of the facts the gambling which he permitted in his tavern was a sociable neighborhood game played only 25 to 26 times a year by the same men and over the years it could hardly be said this was a principal use or that he made any money off the games considering he furnished heat, lights, cards, chips, and the place. It is probably true a card game in a tavern even for modest stakes would not be considered within the ambit of sec. 945.01 (4), Stats., when it can be said that such game is merely an incidental use of the building. Prior to the Criminal Code, sec. 348.07, Stats. 1953, made it a misdemeanor for a person to permit gambling or to keep gaming devices, but this section was not carried over as such into the Criminal Code adopted in 1955. Unless it can be said that playing cards for money reaches such proportions as to amount to one of the principal uses of a tavern, such gambling does not fall within sec. 945.01 (4). The Criminal Code might have defined a gambling place in terms of any use for gambling but it did not. See Comment, vol. 5, 1953 Report of the Wisconsin Legislative Council, Judiciary Committee Report on the Criminal Code, p. 153, to proposed secs. 345.01 (4) and 339.22, which contents are now in sec. 945.01 (4).

Thus the question here is whether the extent of the gambling permitted and encouraged by the defendant and from which he derived $1 a player constitutes one of the principal uses of the defendant’s tavern. The defendant argues the word “principal” must mean more than 50 percent, relying on McGill v. Baumgart (1939), 233 Wis. 86, 288 N. W. 799. In that case the court dealt with the word “mainly” as applied to a traffic section of the statute which defined a residential district as being the territory contiguous to a highway where the frontage of such highway for a distance of 300 feet or more was “mainly” occupied by dwellings and buildings. The court there said, as commonly defined, the word “mainly” meant “principally,” “chiefly,” “in the main,” and required occupancy of at least over SO percent of the frontage by dwellings and business buildings. The case is not in point because sec. 945.01 (4), Stats., does not use the word “principal” as the single, main, chief, or dominant use but uses it in a comparative sense and contemplates several principal uses. In this context “principal” cannot be given a meaning of more than SO percent of the use.

The term “one of the principal uses” contemplates a comparison of the degree of use between a class of principal uses and incidental uses. No mathematical definition can be given, and admittedly the line of demarcation is difficult to draw. It seems clear, however, that because one of the principal uses of a building is for the sale of liquor for consumption on the premises this does not necessarily exclude other principal uses or make other uses incidental either because such use is not so extensive in time or produces less profit. Consequently, we cannot agree with the defendant’s contention that the Monday night poker game was an incidental use because it only occurred 25 or 26 times a year.

The use of a place or room at any given time may determine its principal use at that time but for the purpose of sec. 945.01 (4), Stats., such use must be considered in light of the overall or other uses of the place or room. A sufficient period of time must be considered to fairly ascertain the character of the alleged gambling place in terms of principal uses. On this issue sec. 945.01 (4) (b) provides for the admission of evidence that a place has a general reputation as a gambling place or at or about the time in question was frequently visited by persons known to be professional gamblers or as frequenters of gambling places. We do not consider evidence offered either by the prosecution or defendant to be restricted in time to the period or dates alleged in the information. It may be that gambling is the sole use or one of the principal uses or it may be an incidental use to other current uses. We consider card games are not incompatible with the operation of a so-called neighborhood tavern and may be important to the operation. We believe the jury was justified in finding that one of the principal uses of the defendant’s tavern was the playing of cards for money and the defendant’s participation amounted to the operation of a gambling place.

The defendant contends the trial court erred in reinstruct-ing the jury in reference to commercial gambling when it failed to give the entire instructions or at least the part referring to the meaning of the term “principal.” In submitting the case to the jury the court gave, among other instructions, the common definitions of the word “principal” when used as a noun and as an adjective.

The jury deliberated for some three hours and then requested “an interpretation on commercial gambling and the rereading of the law again on the gambling that you read to us at the last.” In response to a question from the court of exactly what the jury wanted, the foreman stated it wanted “an interpretation of commercial gambling” and “rereading of the law again on gambling in business places.” The court then had the clerk read those portions of his instructions. They did not include the instruction on the meaning of the word “principal.” Upon the completion of the reading, the court asked whether the reinstruction covered the request and the foreman said it did.

The defendant now contends the court’s failure to reread the instruction on the definition of “principal” was prejudicial error, relying on People v. Gesso (1954), 307 N. Y. 385, 121 N. E. (2d) 380, and State v. Henderson (1954), 226 S. C. 227, 84 S. E. (2d) 626. Neither of these cases is in point. The request of the jury foreman did not include the request for that part of the instruction which contained the word “principal.” Even if this were doubtful, the foreman stated the reinstruction complied with the request. In Gesso the trial court did not satisfy the request of the jury for further instruction on one point. In Henderson the court denied the attorney’s request for an instruction following the court’s reinstruction to the jury. Here, the defendant’s attorney did not ask the court to reinstruct on the meaning of the word “principal.” A court in reinstruct-ing a jury fulfils its duty when it satisfies the jury it has complied with the request. People v. Rigney (1961), 55 Cal. (2d) 236, 10 Cal. Rptr. 625, 359 Pac. (2d) 23; People v. Sauerbier (1913), 173 Mich. 521, 139 N. W. 260.

By the Court. — Judgment affirmed.


author:
Gordon, J.
      Hallows, J.

text:
    Fehrman and wife, Respondents, v. Smirl, Appellant.

      October 30

    November 24, 1964.

      For the appellant there was a brief by Moore & Moore, and oral argument by Raymond J. Moore and Frank T. Crivello, all of Milwaukee.

      For the respondents there was a brief by Mount & Keck of Milwaukee, and oral argument by Herbert L. Mount and John A. Keck.

   Gordon, J.

Some of the appellant's arguments on this appeal are directed at claimed errors in our previous opinion in this case. Fehrman v. Smirl (1963), 20 Wis. (2d) 1, 121 N. W. (2d) 255, 122 N. W. (2d) 439. We recently had occasion to reiterate the rule that on a second appeal the supreme court will not reconsider its rulings made on the earlier appeal. .In Cathey v. Industrial Comm. (1964), ante, pp. 184, 186, 130 N. W. (2d) 777, this court stated:

“We will not re-examine the merits of those contentions of the appellant which were involved in the previous appeal.”

In the opinion rendered on the previous appeal, we declared, at page 28a, as follows:

“In conducting the new trial, none of the facts stated herein are to be construed as the ‘law of the case’ or as limiting the scope of the evidence which may properly be admissible during such new trial.”

Accordingly, some of the issues decided upon the first appeal may be considered insofar as there was proof at the second trial which was divergent from that received at the first trial.

Form of Verdict Question One.

We have quoted above the full text of Question One of the special verdict which was submitted to the jury. The appellant contends that, as framed, such question assumes that Mr. Fehrman’s external sphincter was in fact subjected to an injury. The proper approach, according to the appellant, was to inquire whether the external sphincter had been damaged. Upon the appellant’s theory of this case, either there was no damage to the external sphincter or, if there were, it may have been caused by disease rather than injury.

At page 28 of this court’s opinion on the first appeal, we stated:

“If during the new trial the evidence which allegedly shows negligence on Dr. Smirl’s part only concerns injury to the external sphincter, we would recommend submitting an additional question, as the first question of the special verdict, inquiring whether Fehrman’s external sphincter was injured in the course of the first or second operations, or the postoperative care.”

We conclude that the challenge to the form of the first question of the verdict is without merit. We disagree with the appellant’s premise that the form of the question suggests to the jury that there was in fact an injury. In our opinion, the question fairly makes inquiry into a time interval during which the injury, if any, may have occurred. Neither Affett v. Milwaukee & Suburban Transport Corp. (1960), 11 Wis. (2d) 604, 106 N. W. (2d) 274, nor Sharp v. Milwaukee & Suburban Transport Corp. (1961), 15 Wis. (2d) 268, 112 N. W. (2d) 597, justifies the appellant’s contention that a different question should have been submitted inquiring whether Mr. Fehrman’s external sphincter was damaged.

Res Ipsa Loquitur.

On behalf of Dr. Smirl, counsel argues that it was improper for the trial court to have given Mr. Fehrman the benefit of an instruction on res ipsa loquitur. Once again, we encounter the appellant’s theory that it was Mr. Fehr-man’s syphilitic condition which may have caused his urinary incontinence. Since neither Dr. McDonnell nor Dr. Smirl was in charge of the patient in connection with the disease of his central nervous system, it is contended that res ipsa loquitur does not apply. Turk v. H. C. Prange Co. (1963), 18 Wis. (2d) 547, 554, 119 N. W. (2d) 365.

Our examination of the record persuades us that Mr. Fehrman’s disease did not contribute to his problem of urinary incontinence except in “a relatively minor way,” as Dr. Scheifley phrased it. This conclusion is also consistent with Dr. Schaefer’s observation that the changes in the brain associated with syphilis are not of such severity as to cause incontinence.

From the medical testimony, any contribution which Mr. Fehrman’s disease may have made to his urinary incontinence did not rise to the dignity of being a “substantial factor” so as to permit it to qualify as a legal cause under Pfeifer v. Standard Gateway Theater, Inc. (1952), 262 Wis. 229, 55 N. W. (2d) 29.

There was direct medical proof of negligence. Asked his opinion as to whether Mr. Fehrman’s external urinary sphincter would have been damaged during the operative procedures and intervening treatments performed upon him by Drs. Smirl and McDonnell, Dr. Trangsrud gave the following answer:

“. . . it is my opinion that this result would not have occurred if they, or either of them, or both, had been exercising the proper skill and care and diligence that is expected of them in the performance of this operation, suprapubic prostatectomy.”

The foregoing statement of Dr. Trangsrud was directed at the very same inquiry which was to be resolved by the jury. In the previous appeal, at page 18, it was noted that this court “is committed to the principle that expert opinion testimony is not objectionable merely because it covers one of the ultimate facts to be determined by the jury.”

Upon rehearing of the first appeal, we said, at page 28b:

“Whether the evidence presented warrants the giving of a res ipsa loquitur instruction always presents a question of law for the trial court to pass on. At the instant trial no medical witness testified directly that the injuring of the external sphincter in performing a prostatectomy constitutes want of ordinary care on the part of the operating surgeon.
“Whether it will be proper to give a res ipsa loquitur instruction at the new trial will depend on the expert testimony presented.”

While Dr. Trangsrud’s testimony constitutes direct proof of malpractice, it does not particularize the nature of the negligence which he had in mind. In other words, the jury was not expressly told by Dr. Trangsrud in what precise manner the two doctors failed to exercise proper skill and diligence. Since a variety of potential opportunities for negligence existed in the instant case, it is arguable that res ipsa loquitur was appropriate to raise an inference of negligence as to conduct which was not included within Dr. Trangsrud’s conclusions. On the other hand, if Dr. Trangs-rud’s evidence is deemed to be so broad as to constitute direct proof of the only kinds of negligence which might reasonably have been attributed to Dr. Smirl, then the instruction on res ipsa loquitur would have been redundant.

In Lee v. Milwaukee Gas Light Co. (1963), 20 Wis. (2d) 333, 340, 122 N. W. (2d) 374, it was said with reference to res ipsa loquitur:

“Specific elements of negligence not reaching the point of a prima facie case which is overcome by other evidence may be supported by the application of the doctrine. . . .”

The same approach was also expressed in Brunner v. Van Hoof (1958), 4 Wis. (2d) 459, 464, 90 N. W. (2d) 551:

“When specific acts of negligence are shown making a prima facie case by the plaintiff and the inference of negligence is met and overcome by the evidence on the part of the defendant the doctrine of res ipsa loquitur is not applicable.”

One of the problems presented by the foregoing quotations is that it is difficult for the trial judge to determine in advance of the jury’s rendition of its verdict whether the proof has been in fact “overcome.” This court is now of the opinion that the two expressions immediately above quoted should be withdrawn.

When proof of negligence is offered, the trial judge, in contemplating the instructions which he will give to the jury, must evaluate the testimony to determine if there has been such substantial proof of negligence as to render superfluous the giving of an instruction on res ipsa loquitur. Sometimes the question as to the adequacy of the proof of negligence will be a close one; it will be within the sound discretion of the trial judge to determine whether the giving of the instruction will be redundant.

We subscribe to the following comment of Dean Prosser:

“. . . the introduction of some evidence which tends to show specific acts of negligence on the part of the defendant, but which does not purport to furnish a full and complete explanation of the occurrence does not destroy the inferences which are consistent with the evidence, and so does not deprive the plaintiff of the benefit of res ipsa loquitur.” Prosser, Law of Torts (3d ed.), ch. 6, p. 236, sec. 40.

In any event, in the instant case, it was not an abuse of discretion for the trial court to have given the res ipsa loqui-tur instruction. '

Vicarious Liability.

The appellant objects to the fact that under the court’s instruction he was held responsible for the negligence which may have been chargeable to Dr. McDonnell. During the course of its deliberations, the jury returned to the courtroom and asked for further instructions relative to Dr. SmiiTs responsibility for the care given the patient by Dr. McDonnell. The court responded as follows:

“You are instructed, Members of the Jury, that it was the duty of Dr. McDonnell to exercise the same degree of care and skill in his treatment and in his surgery upon Oscar Fehrman as was required of Dr. Smirl, and that Dr. Smirl would be responsible for any failure upon the part of Dr. McDonnell to exercise such care and skill.”

The trial court had previously given an instruction relative to the extent of Dr. Smirks responsibility. It was couched in different words but was nevertheless consistent with the above-quoted language. Upon the first appeal, this court asserted the following in a footnote at page 26:

“The trial court properly instructed the jury as follows: ‘You are instructed that the responsibility of the defendant, Dr. Smirl, to the plaintiff, Oscar A. Fehrman, for malpractice, if any, continued throughout the period of the second operation and the subsequent period during which the defendant treated the plaintiff as his physician and surgeon.’ This is because Dr. Smirl continued in active charge of Fehrman during and after the second operation. See Morrill v. Komasinski (1950), 256 Wis. 417, 426, 41 N. W. (2d) 620.”

In the first trial, Dr. Smirl conceded that he was in charge of Mr. Fehrman during both operations and was professionally responsible for his care during such periods. No such evidence, however, was adduced upon the second trial. Since the facts adduced at the first trial were not to be the “law of the case” upon the second trial (as has been discussed earlier in this opinion), we are not entitled to bind Dr. Smirl by his testimony at the first trial. At the second trial, Dr. Smirl did not deny the admissions made by him at the first trial; he was simply not questioned with respect to them.

Dr. Smirl arranged to have Dr. McDonnell participate in the treatment of Mr. Fehrman after the first operation. When the need for a second operation arose, Mr. Fehrman signed a document entitled “consent to operation,” which gave authority to Dr. McDonnell “and .whomever he may designate as his assistants” to perform a cystotomy. Although respondents’ counsel has denominated a cystotomy as “merely a diagnostic procedure,” it is clear that counsel is in error and that the cystotomy in fact involves the actual incision of the urinary bladder.

Dr. Smirl was present at the second operation, although the “operative record” indicates that Dr. McDonnell was acting as surgeon and Dr. Smirl as his assistant. The testimony of Dr. Smirl indicates that he was closely attentive to the second operation and in fact inserted his finger into the surgical opening.

The problem of holding one medical doctor liable for another’s conduct has often received judicial attention. This court has considered the problem in a number of cases: Morrill v. Komasinski (1950), 256 Wis. 417, 426, 41 N. W. (2d) 620; Heimlich v. Harvey (1949), 255 Wis. 471, 474, 39 N. W. (2d) 394; Mayer v. Hipke (1924), 183 Wis. 382, 389, 197 N. W. 333. An annotation on the subject appears at 85 A. L. R. (2d) 889. See also 41 Am. Jur., Physicians and Surgeons, pp. 225, 226, sec. 113, and 70 C. J. S., Physicians and Surgeons, pp. 977, 978, sec. 54c.

The courts appear to be divided regarding the question of the responsibility of one physician for the negligence of another. Some courts have held that a physician who has advised his patient that an operation should be performed by another is not to be held liable for the surgeon’s negligence; in some of the cases the physician not only selected the surgeon but was either present or assisted in some way at the operation. Brossard v. Koop (1937), 200 Minn. 410, 274 N. W. 241; Shannon v. Ramsey (1934), 288 Mass. 543, 193 N. E. 235; Beckwith v. Boynton (1924), 235 Ill. App. 469; Robinson v. Crotwell (1911), 175 Ala. 194, 57 So. 23; Brown v. Bennett (1909), 157 Mich. 654, 122 N. W. 305.

On the other hand, there are a number of courts which have held that the one physician is a joint tort-feasor with the other and is liable for his negligence when there is a concert of action and a common purpose existing between the two doctors. Graddy v. New York Medical College (1963), 19 App. Div. (2d) 426, 243 N. Y. Supp. (2d) 940; Mutschman v. Petry (1933), 46 Ohio App. 525, 189 N. E. 658; Voter v. Newsalt (1929), 58 N. D. 154, 225 N. W. 74; Bolles v. Kinton (1928), 83 Colo. 147, 263 Pac. 26, 56 A. L. R. 814; Manley v. Coleman (1924), 19 Ohio App. 284.

To the writer of this opinion, it would appear reasonably clear from the record of the second trial that Dr. McDonnell was in charge of the second operation rather than Dr. Smirl. To hold that Dr. Smirl (the assistant) is liable for the negligence of Dr. McDonnell (the surgeon in charge) would seem to be the application of a novel doctrine of respondeat inferior. However, the majority of the court is persuaded that, under the circumstances of this case, Dr. Smirl either was in charge of the patient or was acting jointly with Dr. McDonnell. Accordingly, the court concludes that it was proper for the trial judge to instruct the jury as he did on the question of vicarious liability.

Additional Instructions to the Jury.

After the jury commenced its deliberations, it returned with a request for additional instructions. The court responded to the inquiries, and the appellant contends that this gave undue emphasis to the specific matters which were so covered. We do not regard the trial court’s response to the jury’s request for additional instructions as overemphasizing the matters inquired about. In Olson v. Siordia, ante, p. 274, 130 N. W. (2d) 827, we recently noted the breadth of the trial court’s discretion when a request for reinstruction is made by a jury.

The appellant also complains that the trial court “ad-libbed” the instructions and did not repeat them in the exact words which were used in the original instructions. Our examination of the additional instructions satisfies us that they were correct, and we know of no necessity for their being framed in the precise words which the judge had earlier used.

Excluding the Damage Issue.

In ordering the new trial, this court, at page 28 of its previous opinion, expressly excluded retrial of the damage issue. The appellant now argues that the issues of damages and negligence are so closely interrelated in the instant case ■ that it is impossible to sever one from the other; to do so, it is urged, is to give the injured party an unfair advantage.

This court has on a number of occasions excluded the damage issue when ordering a new trial. See, for example, Leusink v. O’Donnell (1950), 257 Wis. 571, 574, 44 N. W. (2d) 525, and Behling v. Posorske (1920), 172 Wis. 608, 613, 179 N. W. 738.

On the second trial, it was necessary for the trial court to permit testimony as to the nature of Mr. Fehrman’s physical condition. This was not received for the purpose of proving his damages but rather for the separate and entirely proper purpose of attempting to show that there had been malpractice committed upon him. We conclude that there was no error on the retrial in excluding the issue of damages. The damages awarded in the first trial were fair, and there was no suggestion of dissatisfaction with the damages upon the original appeal.

Previous Conviction of Crime.

Dr. Smirl was asked whether he had ever been convicted of a crime, and he responded in the affirmative, adding that it was a misdemeanor. No further questioning on this subject was conducted by either side. In his instructions to the jury, the trial judge informed the jurors that in weighing Dr. Smirl’s testimony they were entitled to take into consideration the fact that he had been so convicted of a misdemeanor. The court went on to point out, however, that the conviction did not disqualify him as a witness. The appellant complains that the instruction was improper, claiming that most misdemeanors do not in any way affect a person’s credibility.

The instruction as given by the trial court constituted an accurate statement of the law. If the nature of the misder meanor_ had been shown to be one which obviously would not affect the witness’ credibility (e.g., a driving offense), it would have been proper for the trial court to have refused to have given this instruction. In the instant case, however, Dr. Smirl’s counsel did not see fit to have the witness identify the misdemeanor. Accordingly, it was entirely appropriate for the trial court to instruct the jury concerning the impeaching characteristics of a previous conviction.

Computation of Interest.

After the second trial, the Fehrmans were permitted to include interest in their bill of costs dating back to the verdict of the first trial. Since the first trial ended in a judgment in favor of Dr. Smirl, his counsel now urges that interest should run only from the date of the second verdict, since that verdict was the only one in favor of the Fehrmans.

Sec. 271.04 (4), Stats., provides that, “When the judgment is for the recovery of money, interest at the legal rate from the time of verdict, . . . until judgment is entered shall be computed by the clerk and added to the costs.” When a defendant prevails in the first trial and loses in the second trial, it is arguable that interest against him should not begin to run until after the adverse verdict. On the other hand, the injured party’s damages become liquidated with the verdict in the first trial.

The court considered a closely related problem in Zeidler v. Goelzer (1926), 191 Wis. 378, 389, 211 N. W. 140, and concluded that interest was properly computed from the date of the verdict in the first trial, since the damages became liquidated at that time. Cf. Wendt v. Fintch (1940), 235 Wis. 220, 227, 292 N. W. 890. In the Zeidler Case, the verdict of the first trial was in favor of the plaintiff; nevertheless, we agree with the trial judge that this distinction is not controlling.

The damages were liquidated after the first trial, and it was theoretically possible for a tender to have been made. Smith v. Atco Co. (1959), 6 Wis. (2d) 371, 395, 94 N. W. (2d) 697. We recognize that a defendant, victorious at the first trial, would scarcely contemplate a tender of damages; however, it does not follow that upon an ultimate loss of the case such defendant is protected from the burden of paying interest on the previously ascertained damages. This is especially true when, as here, no question of damages was involved upon the second trial.

Conclusion.

In the opinion of the court, there were no prejudicial errors committed upon the retrial. Further, the appellant’s request for a new trial in the interests of justice under sec. 251.09, Stats., must be denied.

By the Court. — Judgment affirmed.

Hallows, J.

(concurring). While we are again restating the applicability of the res ipsa loquitur doctrine, I would prefer the articulation to be a bit more certain than what is now offered.

The oft-quoted statement of the doctrine as stated by Chief Justice Erle in 1865 in Scott v. London St. Katherine Docks Co. 3 Hurl. & C. 594 (*596), is :

“But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.”

This statement in substance is cited in Prosser, Law of Torts (3d ed.), ch. 6, p. 218, sec. 39, and the headnote based on the statement has been cited with approval by the court in Kirst v. Milwaukee, L. S. & W. R. Co. (1879), 46 Wis. 489, 492, 1 N. W. 89; Cummings v. National Furnace Co. (1884), 60 Wis. 603, 612, 18 N. W. 742, 20 N. W. 665; and in Dunham v. Wisconsin Gas S Electric Co. (1938), 228 Wis. 250, 256, 280 N. W. 291. The two elements requisite for the application of the doctrine in Wisconsin were extensively discussed in Turk v. H. C. Frange Co. (1963), 18 Wis. (2d) 547, 119 N. W. (2d) 365. The rule has long been considered to be in the nature of a permissive inference to be drawn from circumstantial evidence in situations where it is more probable the injury was caused by some negligence of the defendant than that it was not. Lipsky v. C. Reiss Coal Co. (1908), 136 Wis. 307, 117 N. W. 803; Turk v. H. C. Prange Co., supra; Koehler v. Thiensville State Bank (1944), 245 Wis. 281, 14 N. W. (2d) 15.

When the rule is applicable to a given case is the subject of conflict in the cases. In Brunner v. Van Hoof (1958), 4 Wis. (2d) 459, 464, 90 N. W. (2d) 551, we pointed out, “. . . the doctrine may be applied in cases where evidence of specific negligence is introduced” and attempted to state when the doctrine was inapplicable in terms of a prima facie case. When evidence of specific acts of negligence reaches the point where a prima facie case is made, it is erroneous for the trial court to give an instruction to the jury that it is permissible for it to draw an inference of general negligence from the fact that an injury has occurred. Brunner v. Van Hoof, supra, so held.

The majority opinion states this concept in terms of a determination of “such substantial proof of negligence as to render superfluous the giving' of an instruction on res ipsa loquitur.” But what is substantial and when is the doctrine superfluous or redundant is not explained. These terms are new in the literature on the doctrine of res ipsa loquitur. The only time giving an instruction on res ipsa loquitur would be superfluous or redundant is when the jury unaided by the doctrine may properly in its reasoning process conclude from the evidence of specific acts that the defendant was negligent in that specific respect. When the evidence of negligence is “substantial” enough to permit this, a prima facie case has been made and the plaintiff is entitled to go to the jury and neither public policy nor necessity can justify the application of the doctrine. The terms “substantial,” “superfluous,” and “redundant” are only meaningful in terms of whether the plaintiff without the aid of the application of the doctrine is entitled to go to the jury, and in that case the inference of general negligence or negligence in no specific respect is ruled out as being inconsistent with the proved specific negligence.

The quotation accepted by the majority from Prosser impliedly supports this rule because evidence of specific negligence which furnishes a full and complete explanation of the occurrence destroys the inference of general negligence inferred from the fact that the injury has occurred. This court in Commerce Ins. Co. v. Merrill Gas Co. (1955), 271 Wis. 159, 168, 72 N. W. (2d) 771, stated:

“Should their attempt to prove specific negligence on defendant’s part be unsuccessful, or should their introduction of evidence of specific negligence fail to establish the precise cause of the damage claimed, they will not as a result be deprived of the benefits available to them under the doctrine of res ipsa loquitur.”

Conversely, the effect of being “unsuccessful” in making a prima facie case on specific negligence is stated in Anno. 33 A. L. R. (2d) 791, 803, Res Ipsa Loquitur — Availability :

“In several cases recognizing the general rule that an unsuccessful attempt by the plaintiff to prove specific acts of negligence does not deprive him of the benefits of res ipsa otherwise available, the view has been taken that where the plaintiff’s evidence of specific negligence is sufficient to raise an issue for the jury or to make a prima facie case, the plaintiff’s ‘attempt’ to prove specific negligence can no longer be regarded as ‘unsuccessful,’ and the jury should not be permitted to consider any inference or presumption arising from res ipsa.”

In the instant case I do not consider the evidence much more than sufficient to qualify the facts by an expert for the application of the doctrine and certainly not as amounting to a prima facie case on specific negligence.

I am authorized to state Mr. Justice Wilkie joins in this concurring opinion.