Volume 159 — Wisconsin Reports

<p> Exchange of chattel for land: Rescission: Lacle of title to land: Constructive notice: Offer to return: Replevin: Damages: Form of judgment: Milwaukee civil court. </p> <p>1. One who traded a horse for a specified quantity of gravel to tie taken from certain land to which, as the record showed, the other party had no title, had constructive notice of such lack of title and could not afterwards rescind the trade on that ground.</p> <p>2. Nor, having, already taken a part of the gravel, could he rescind without offering to return the gravel or its value either to the other party to the trade or to whoever was entitled thereto.</p> <p>3. In replevin the measure of defendant’s damages for the taking and detention of the chattel seized on the writ is the reasonable value of its use for the time it is detained, not interest on its value.</p> <p>4. An action of replevin in the Milwaukee civil court being governed by the rules and statutes applicable to such actions in justices’ courts, where the chattel in suit has been seized by the sheriff under the writ, if the plaintiff fails to recover there should not be a judgment for defendant In the alternative for a return of the chattel or for its value, but there should be, under sec. 3743, Stats., an order for its return to defendant and judgment for damages only. The chattel is, in such a case, in the custody of the court even though, by arrangement between the sheriff and the plaintiff, it has been turned over to the latter.</p>

<p> Master and servant: Injury: Assumption of rislo: Contributory negligence: Negligence of person other than employer: Railroads: Questions for jury. </p> <p>1. An employee of a brewing company who, while driving out of an alley and across a private track in the brewery grounds, was injured by a railway car which had been shunted, in upon such track without warning, and who had full knowledge that cars for the use of the brewing company were constantly shunted in upon such track in that manner, is held, as between himself and his employer, to have assumed the risk.</p> <p>2. Although assumption of risk has often been spoken of as a form of contributory negligence, there is a distinction between the two, and one may exist without the other. Assumption of risk, in its strict sense, exists only as an incident of contractual relations and does not involve violation of any legal duty; while contributory negligence, strictly so called, does not necessarily arise from contractual relations and is a violation of duty.</p> <p>3. Although an employee of a brewing company had, as between himself and his employer, assumed the risk of injury from cars shunted in by a railway company upon a private track of the brewing company, such assumption of risk did not absolve the railway company from its obligation to exercise ordinary care, nor was it necessarily contributory negligence as to. the railway company.</p> <p>4. Whether, under the circumstances of this case, the railway company was negligent in shunting the car in upon the private track without warning, and. whether plaintiff was guilty of contributory negligence in attempting to cross the track as he did, were questions for the jury.</p>

<p> Criminal law: Homicide: Set-guns: Degree of offense: Manslaughter: Murder in second degree: Statute construed: “Any other purpose:” Instructions to jury. </p> <p>1. Where all the elements necessary to constitute the offense of setting a gun under sec. 4394, Stats., existed, and the death of a person was caused by the discharge of such gun, the homicide cannot he deemed justifiable or excusable but is at least manslaughter in the second degree; and the killing of a person by means of a set-gun may be a higher crime, depending on the intent of the person setting it or other facts characterizing the act.</p> <p>2. Setting a gun to frighten boys who were likely to enter the premises for the purpose of stealing apples is within the terms of sec. 4394, Stats., which makes it an offense to set a gun “for the purpose of killing game of any kind ... or for any other purpose.”</p> <p>3. Where, upon the undisputed evidence, the defendant was at least guilty of manslaughter in the second degree under sec. 4394, Stats., there was no error in excluding from the jury’s consideration any crime of less degree; nor, there being evidence tending to show that the offense was of higher degree, was it error to charge that defendant was guilty of some crime and that it was for the jury to determine of which crime he was guilty.</p> <p>4. In such a case it was not error to charge: “The jury have the power, if they see fit, to acquit the defendant of all crime, but in case you should do so you would disregard the undisputed facts and the law applicable to this case.”</p> <p>5. Defendant having set a gun in his orchard in such a way that its contents would probably be discharged against any person coming in contact with a wire attached to the trigger and extended for some distance near the ground, and there being evidence of malice, deliberation, depravity of mind evincing disregard for human life, and intent to injure whoever might enter the orchard for the purpose of stealing apples, a conviction of murder in the second degree under see. 4339, Stats., is sustained.</p>

Appeals from judgments of tlie circuit court for Milwaukee county: LAweeuce W. ITalset, Circuit Judge. These are separate appeals from two several judgments. The respondent Reichert filed with the county hoard of the appellant county a claim for allowance of interest based upon the facts hereinafter stated, and from a disallowance of that claim be appealed to the circuit court, which allowed the claim and gave him judgment thereon. The county appeals to this court.

Fritz, Circuit Judge. The plaintiff brings this suit as a taxpayer against the defendants, who are' the principals of five public high schools in the city of Milwaukee.

<p> Landlord and tenant: Failure of lessee to obtain possession: When covenants cannot be implied: Remedies: Recovery of bonus: Breach of covenant. </p> <p>1. Although a lease contains covenants binding tbe lessee to make certain repairs and to do certain other things with reference to the leased premises, the lessor does not for that reason expressly covenant that the lessee be given possession; and under secs. 2204, 2242, Stats., if the lease be for a term exceeding three years no covenant to put the lessee in possession can be implied.</p> <p>2. When the lessor in a lease for a term exceeding three years is unable to deliver possession to the lessee, such lessee, even though not protected by proper covenants, may withhold the rent or, if paid, recover it back for the period for which possession has been withheld.</p> <p>3. For acts of the lessor in such a case which tended to prevent the lessee from obtaining possession and were in derogation of the lease, the lessee may recover damages although the lease contained no express covenant by the lessor to put him in possession.</p> <p>4. A bonus paid prior to the execution of a lease for a term exceeding three years without covenants by the lessors to deliver possession or as to quiet enjoyment, to secure such lease at that time in advance of the termination of an existing lease to another person, cannot be recovered back by the lessee even though he is unable to secure possession at the beginning of his term.</p> <p>■5. A covenant by lessors of premises to be used as a jewelry store that during the term (which was to commence at the termination of another lease) no other jewelry store should be allowed in any portion of the building of which the leased premises were a part, was not breached by the fact that a tenant then using the leased premises as a jewelry store wrongfully held over after his term in defiance of the lessors, who proceeded to put him out as soon as the law would permit, .</p>

Ai’I'jcal from a judgment of the circuit court for Winnebago county; Geo. W. Burnell, Circuit Judge. Action to recover damages for flowage of plaintiff’s land. The material allegations of the complaint are these: Plaintiff is and since July 1, 1898, has been the owner of a certain eighty-acre tract of land adjoining defendant’s right of way on the south. The land slopes to the north and a natural stream of water flows through it in a northeasterly direction.

W. Buekell, Circuit Judge. Action to set aside a deed purporting to have been executed \ by the trustees of the plaintiff corporation, conveying itsc church property to the defendant. These are the facts, as ^ found, which tvere held to require the judgment complained of: In 1912, plaintiff was composed of thirtv-one members.

<p> Master and, servant: Injury: Fall of elevator: Contributory negligence: Questions for jury. </p> <p>The platform of a freight elevator in a paper mill stood open and at the level of an upper floor, with a bale of paper stock weighing 700 or 800 pounds upon it. The cables of the elevator were partially unwound and hung loose on or below its top. An employee wishing to go to a lower floor stepped upon the platform, and the elevator at once fell to the basement and he was injured. Held, that the question of his contributory negligence was for the jury.</p>

W. Bubnell, Circuit Judge. This action involves a will contest. The testatrix, Ann Bean, made her will on July 13, 1910, and died in July, 1912.

■Appeal from a judgment of the circuit court for Winnebago county: Geo. W. BrauraLL, Circuit Judge. Action to recover damages for the death of the minor son of' plaintiffs. Defendant demurred to the complaint on the-ground that it did not state facts sufficient to constitute a cause of action.

<p>Appeal from a judgment of the circuit court for Winnebago county: Geo. W. Bueuell, Circuit Judge.</p>

<p> Libel: Newspaper article: Malice: Conditional privilege: Instructions to jury: Evidence: Other publications: Opinions: Offer to retract: Damages: Mitigation. </p> <p>1. Whether a particular publication would ordinarily be so understood as to be libelous is generally a question of law, although sometimes the characterizing circumstances are such that it is a question of fact, or of mixed law and fact.</p> <p>2. If a newspaper article naturally tends to make a person appear ridiculous or contemptible or a subject of hatred, or to disgrace him in society or injure him in his business, the right to recover general damages follows as a matter of course, in the absence of truth as a justification or of circumstances of legal excuse.</p> <p>3. Mere good-faith, honest belief in the truth of the publication, good motives, accident, or inadvertence is not of itself a defense or sufficient to mitigate the actual damages recoverable.</p> <p>4. Conditional privilege as regards newspaper publications does not go beyond fair criticism in respect to the relations of persons to the public and report of facts. It does not extend to false statements of fact or unjust inferences, nor taunts, nor contemptuous and insulting phrases.</p> <p>5. A newspaper article in which a reputable lawyer, long in practice and of high standing, was referred to as “an attorney who seems to be entirely ignorant of the first principles of decent courtesy or fairness,” as a “puny little member of the bar,” and as a “legal neophyte,” was libelous as a matter of law.</p> <p>6. In an action based on such article, no justification having been shown and there being no evidence to indicate that plaintiff’s character was not such as to be affected in the ordinary degree thereby, and affirmative evidence that the injury was possibly above the ordinary^ it was error to refuse to instruct the jury that the article was libelous per se and that plaintiff was entitled to recover his actual damages regardless of whether the publication was made with bad motives or not; and the jury should further have been made to appreciate that nothing short of substantial damages within the field of general damages would be adequate to the case.</p> <p>Y. It was error in such case to refuse to receive in evidence other articles published in defendants’ newspaper leading up to the one in question, and articles subsequently published up to the time the case "went to the jury, all of which had a material bearing upon the questions of malice and punitory damages.</p> <p>8. Por the publication of such articles .during the trial, defendants should have been reprimanded and perhaps punished by the trial court.</p> <p>9. It was error to permit defendants’ witnesses to testify to their conclusions, opinions, and impressions in respect to the occurrences before the board of review with reference to which the libelous article was published, and to refuse to permit plaintiff to prove just what was said and done before the board of review.</p> <p>10. It was error, also, to permit one of the defendants to testify as to what he meant by the use of the particular expressions used in the libelous article and his conception of his duty and his rights as a newspaper publisher, or at least such testimony should have been confined to the question of exemplary damages. What the author intended, in such a' case, is immaterial on the question whether the article is libelous or what sum of money will measure the loss caused.</p> <p>11. An offer by defendants to retract any statement in the libelous article if plaintiff would produce to them satisfactory proof of its incorrectness, and to publish any signed article plaintiff might furnish for that purpose, subject to such comments as defendants might see fit to make, the offer being accompanied by a suggestion of still greater humiliation of plaintiff if he resorted to legal remedies for redress, was not such an offer as should be considered in mitigation of the wrong, and the jury should, on plaintiff’s request, have been so instructed.</p>

W. Burnell, Circuit Judge. This action was brought by the plaintiff to recover on four promissory notes made by the defendants. There is no dispute concerning them except as to the note made on April 1, 1910, for $670. On the 21st day of March, 1892, one S. W. Plallock subscribed for five shares of the stock of the plaintiff bank and agreed to pay therefor the sum of $1,500.

W. BurNell, Circuit' Judge. This action was brought against the defendants to recover damages for false representations alleged to have been made in the sale of a note for the sum of $2,500.

W. Btjuitell, Circuit Judge. Action to recover damages for injuries sustained by falling on an alleged defective sidewalk. The notice of injury stated that the plaintiff was injured by reason of a defective sidewalk and described the place where the injury occurred.

W. BuRnell, Circuit Judge. Action to recover the tariff freight charges on carload shipments of logs and wood holts from various points in the state to Ladysmith carried over plaintiff’s road between June 1, 1911, and March 1, 1912.

<p> Municipal corporations: Injury from defect in sidewalk: Effect of itemizing claim: Elements of damage: Mental suffering: Loss of business: Excessive damages: Married women. </p> <p>1. Whether the itemizing of damages in a claim filed against a city for a personal injury, and in the complaint filed in the circuit court on appeal, has the effect to limit the amount recoverable for any one element of damage to the sum specified therefor in the itemized claim, not decided.</p> <p>2. Even if the itemizing of the claim has such effect, the element of mental suffering or chagrin on account of a deformity resulting from the injury is not included in a specified item of damages by reason of inability to carry on .plaintiffs business; and for such element a substantial sum may in a proper case be allowed.</p> <p>3..For damages by reason of the inability of plaintiff (a married woman forty years old) to carry on her established dressmaking business from which her net e'arnings had been about $1 per day, because of a permanent injury and impairment of her right leg resulting from a fall on a defective sidewalk, and for the element of mental suffering or chagrin on account of deformity and disfigurement resulting from the injury, an award of $4,000 in this case is held not excessive.</p> <p>4. A married woman who carries on a separate business in her own name can recover in her own name damages for any injury to her earning power in that business.</p>

Action to recover on a policy of life insurance issued on the assessment plan.

<p>Appeal from a judgment of the circuit court for Eichland county: Geob&e Olementson, Circuit Judge.</p> <p>Action by the plaintiff to recover damages from the defendant for breach of a contract in discharging him from his employment as a school teacher. The plaintiff was an assistant' in the defendant’s high school during the years 1910-11 and 1911-12 and was re-engaged to teach in the high school beginning the' school year 1912 — 13. He taught from the opening of school, September 12, 1912, and continued in the service until March 8, 1913, when he was dismissed from service by the school board.</p> <p>There was evidence tending to show that the plaintiff at one time refused to continue instructing a class in mechanical drawing which recited at 8 o’clock in the morning. The principal of the school, however, insisted on his continuance as instructor of this class. Upon report of the matter to the school board and an investigation thereof by its committee, plaintiff was told to comply with the direction of the principal of the school in this and other matters pertaining to the management of the school and the assignment of classes and their hours of recitation. The plaintiff, it appears, reluctantly conformed to this determination of the board and continued to teach this class for the remainder of the school term. It also appears that plaintiff, as director of the football team, arbitrarily tried to revoke a permission he had given to the team to play a game with another high school and represented that he had not consented thereto, but upon a hearing before the principal he admitted in a qualified manner that his consent had been given. It also appears that serious altercations arose between the plaintiff and the lady teachers concerning their management of the main room during specified hours and the management and charge of the girls’ basketball team. The troubles finally culminated in plaintiff’s refusal to be interviewed or to offer any explanation to the principal of a physical encounter between him and one Olson, a pupil, who was a member of the basketball team, which caused a serious disturbance in the management of the school. Upon report by the principal of these conditions to the school board, the plaintiff and Olson were notified to appear before tbe board and give an explanation of their conduct on March Y, 1913. Olson gave his version of the meeting and the plaintiff was then requested to give any further explanation of the affair. The plaintiff admitted that Olson had stated about what had occurred on that occasion. The evidence also shows that the plaintiff refused to' abide by and follow suggestions and directions of the principal of the school.</p> <p>The court submitted-the case to the jury, who returned a general verdict for the plaintiff and assessed his damages at $25. The school district on October 10, 1913, served an offer to have judgment awarded in plaintiff’s favor and against the district for the sum of $25 damages, with interest thereon at the rate of six per cent, from April 1, 1913. Plaintiff did not accept this offer and claimed the fight to recover damages in the sum of $250 and his costs of the action. The court awarded plaintiff judgment to recover the sum of $25 with the costs of the action up to the date of the defendant’s offer of judgment, and granted defendant its costs in the action which were incurred subsequent to such offer of judgment. The plaintiff appeals from such judgment.</p> <p>They cited Slate ex rel. Burpee v. Burton, 45 Wis. 150; sec. 453, Stats. 1913; Carver v. School Dist. 113 Mich. 524, Yl N. W. 859 ; Coffin v. Board of Education, 114 Mich. 342, Y2 N. W. 156; Tripp v. School Dist. 50 "Wis. 651, Y N. "W. 840; Scott v. Joint School Dist. 51 Wis. 554, 8 N. W. 398; Green v. Gilbert, 21 Wis. 395-; Jennings v. Lyons, 39 Wis. 553; Winkler v. Bacine W. & C.-Co. 99 Wis. 184, 18Y, Y4- N. W. Y93; People ex rel. Peixotto v. Board of Education, 82 Mise. 684, 144 N. Y. Supp. 8Y.</p> <p>They cited 35 Cyc. 1089, ■1090;, 1097; Crawfordsville v. Hays, 42 Ind. 200, 210; Robinson v. School Directors, 96 Ill. App. 604; Tripp v. School List. 50 Wis. 651, 659, 7 N. W. 840.</p>

<p>Appeal from a judgment of the circuit court for Grant county: Geoege Clementson, Circuit Judge.</p> <p>This action was brought to compel specific performance of a contract. The contract in question describes the land as follows: “The west half of the northwest quarter of section twenty-eight (28), in town six (6) north, of range four (4) west, less four village lots, which lots are an addition to the village of Mount Hope.” The court below granted specific performance of the contract, but construed the description to read: “The west one-half of the northwest one-fourth (-|) of section twenty-eight (28), in town six (6) north, of range four (4) west, in Grant county, Wisconsin, expept four village blocks, being all of Humphrey’s addition to the village of Mount Hope.”</p> <p>The court below upon certain proof made held that the statement “four village lots” meant “four village blocks” and rendered judgment for specific performance accordingly, from which judgment plaintiff appeals.</p>

<p> YencLor and, purchaser of land: Brokers: Knowledge of agent, when not imputed to principal: Evidence: Competency: Maps: Con tract construed: “Rloxo land:” “Close to a railroad:’’ Reformation of contract. </p> <p>1. One who employed an agent to find a purchaser for his land was not chargeable with knowledge which the agent had previously acquired (but did not communicate to his employer) as to other lands which the employer finally agreed to accept in part payment, since such knowledge of the agent did not relate to the subject of his employment, was not acquired while he was acting as. agent, and was not within the scope of his authority.</p> <p>2. A contract for the sale of land having provided that the vendor was to accept other land in part payment, but that if such other-land was not as represented he might reject it and demand cash in lieu thereof, knowledge of the vendor’s agent that such other land was not as represented was immaterial and did not affect the vendor’s right to reject it.</p> <p>3. Maps and diagrams are frequently received in evidence with very slight proof of accuracy or authenticity when they constitute merely a picture or a summing up o'f evidence otherwise legitimately in a case; but when they are offered to establish an independent relevant fact — in this case the existence of a railroad right of way near certain land — they must be certified or verified or otherwise made competent under the same rules as apply to other documentary evidence.</p> <p>4. Where, in a contract of sale, land is represented as being “plow land,” that means that it is tillable land, not arid land which might be plowed without any beneficial results.</p> <p>5. -The words “close to a railroad” in a land contract must ordinarily be understood relatively to local conditions. It seems that land in North Dakota sixteen miles from a railroad is not within the meaning of the words.</p> <p>6. A court of equity will not reform a written instrument for a mistake in reducing it to writing unless such mistake is established by the most clear and satisfactory evidence.</p> <p>7. The evidence in this case is held insufficient to warrant the reformation of a contract for the sale of land so that it should provide that the land to be taken by the vendor in part payment was to be “close to a railroad right of way,” instead of “close to a railroad.”</p>

<p>Ai’RIsal from a judgment of tbe circuit court for La Fay-ette county: Gjsoese Clementsoh, Circuit Judge.</p> <p>Action to recover damages for personal injury. Defendant was engaged in wrecking an abandoned mining plant. Plaintiff was directed to remove some boards from tbe roof of tbe engine room. Tbis roof was adjacent to tbe derrick in wbicb tbe boister room was built. Tbe boister-room floor was about eighteen feet from tbe ground. In proceeding to tbe engine-room roof plaintiff bad occasion to pass over tbis floor, and wben near tbe outer edge of it one of tbe boards gave way and be fell and was badly injured. Tbe negligence claimed was failure to furnish a safe place to work and failure to warn tbe plaintiff of tbe danger incident to tbe work wbicb be was directed to do. The answer denied negligence and pleaded settlement and release. Plaintiff was injured June 13, 1913. Tbe jury returned tbe following special verdict:</p> <p>“(1) Mas tbe plaintiff at tbe time he signed tbe release in question able to understand its nature ? A. No.</p> <p>“(2) At tbe time tbe release was signed by tbe plaintiff, was be, in view of all of the existing circumstances, under such false impression as to bis rights and the character of tbe instrument of release and tbe effect of it as should in justice avoid'said release ? A. No.</p> <p>“ (3) Did tbe defendant negligently fail to warn tbe plaintiff that tbe board in question was loose ? A. No.</p> <p>“(4) Did tbe defendant negligently fail to fasten or secure tbe board in question ? A. No.</p> <p>“(5) Ought tbe defendant in tbe exercise of ordinary care to have, ascertained that tbe board in question was not safely fastened to the joists and have fastened it before the accident to plaintiff ? A. No.</p> <p>“(6) Ought the defendant in the exercise of ordinary care as a reasonably prudent person reasonably to have foreseen that the loose condition of this board was such that an injury might naturally and probably result to a workman exercising ordinary care for his safety who might walk upon the floor where this board was ? A. No.</p> <p>■“(I) Did any want of ordinary care upon the part of the plaintiff contribute to cause his injury ? A. No.</p> <p>“(8) What sum of money will compensate the plaintiff for the injury he received from the accident of June 13th last? A. Eive thousand dollars.”</p> <p>Judgment for defendant was rendered on this verdict. Plaintiff appeals.</p>

Action for specific performance. The facts 'will sufficiently appear from the findings made by the trial court, which are as follows: “(1) The plaintiff Edmund 0. Dingman is a son-in-law of the defendants Alfred Hilberry and Ella Hilberry, his wife, the plaintiff Myrtle Dingman being a daughter of said defendants.

<p>Appeal from an order and a judgment of the circuit court for Grant county: Geojíge Clemeittsoh', Circuit Judge.</p> <p>This is an appeal from a judgment' of the circuit court affirming a judgment of the county court of Grant county directing the payment of the debts proven against the estate out of the proceeds of the sale of the homestead of the deceased. It appeared by the record returned by the county court to the circuit court that the testator, David Foote, died in July, 1904, leaving a will which was subsequently duly probated,, by which he gave to his widow the “full control” of his estate during life and after her death directed an equal division of the estate among his surviving children. The estate consisted of a homestead and a small amount of other property. Claims, against the estate were allowed to the amount of $1,350. The property outside of the homestead was sold and converted into money and used to discharge expenses of administration, but did not produce enough to discharge the debts. The widow died, and after her death, upon ajDplication for construction of the will, the county court held that the will by its terms worked an equitable conversion of the real estate into personal property and that' the administrator should sell the homestead in order to carry out the provisions of the will. This was done and the sum of $2,800 realized therefrom. Thereupon the administrator rendered his final account,, charging himself with the net proceeds of the homestead and praying that the same be assigned to the surviving children of the testator in accordance with the terms of the will. The creditors appeared at the hearing and claimed that the debts which had been allowed and not paid should be discharged from the moneys received from the sale of the homestead before distribution to the devisees. The comity court so ordered, and upon appeal to the circuit court the order was affirmed, that court holding that the sum' in the hands of the adminis-' trator “is available and liable for the payment of debts and expenses of administration” of-tlie estate. No bill of exceptions was settled in the circuit court.</p> <p>They contended, inter alia, that under facts similar to those here, except as involving the question of homestead, this court has repeatedly held that the court will deal with the estate as personal from the death of the testator, and that the bequests in such a will must be considered as bequests of personalty only. Chandler's Appeal, 34 Wis. 505; Dodge v. Williams, 46 Wis. 70, 97, 1 N. W. 92, 50 N. W. 1103; Gould v. Taylor Orphan Asylum, 46 Wis. 106, 50 N. W. 422; Webster v. Morris, 66 .Wis. 366, 28 N. AV. 353; Miliuauhee P. Home v. Becher, 87 AATs. 409, 58 N. AV.-774; Hood v. Dorer, 107 Wis. 149, 82 N. AV. 546; Becher v. Chester, 115 AVis. 90, 91 N. AV. 87, 650; McWilliams v¡ Gough, 116 AAris. 576, 93 N.- AV. 550; ATbistoris Estate, 117 AVis. 272, 94 N. AAA 169; Williams°v. Williams, 135 AVis. 60, 115 N. AV. 342. In Ford v. Ford, 70 AVis. 19, 53, 33 N. AAC 188, the court considers the matter of conversion of a homestead and indicates that, except as to the right of election of the widow, the effect is the same as in other cases. The proceeds of realty converted by will, being personal property, may be applied to the payment of debts. 9 Cyc. 835, 836, 851; Personeni v. Goodale, 199 N. Y. 323, 92 N. E. 754.</p>

Action to recover money paid under protest to the treasurer of defendant as taxes. •In January, 1913, under the law of this state plaintiff’s articles of organization as a banking corporation were duly filed and subsequently, before the 1st day of May, all steps were taken to authorize it to commence business as such, except' payment for a few shares of stock and obtaining a certificate of competency of the commissioner of banking, as required by sec. 2024 — 10, Stats.

<p>Appeal from a judgment of tlie circuit' court for Grant county: Geoege Clemeétson, Circuit Judge.</p> <p>The appeal is from a judgment of the circuit court for Grant county which affirmed the judgment of the county court of that county admitting- to prohate the will of Barbara Ann Morse, who died March 18, 1913, aged sixty-eight years. This will was made March 15, 1913. The will disposes of the estate by giving to her brother Christopher C. Balsinger a farm of about sixty acres and the personal property that remained after the payment of her debts and funeral expenses, and the residue of her real estate, consisting of 200 acres of bottom lands near to the Mississippi river, she gave, to this brother Christopher and her brother Berman H. Balsinger to have and to hold for the term of their natural lives and after their death to her legal heirs. She appointed Christopher C. Balsinger executor of the will, requesting that he be not required to give bonds, and authorized and empowered him to compromise and settle all claims or demands that existed either in favor of or against her estate. The will was signed at the foot and followed by an attestation clause in the usual form declaring that the testatrix signed and declared this to be her last will in the presence of the subscribing witnesses, who signed it at her request and in her presence. The witnesses signed as follows: “Jacob Shrake, Notary Public, Bag-ley, Wis.; Dr. Lewis IT. Rutt'enberg, M. D., Bagley, Wis.; Éred E. Patch, Bagley, Wis.”</p> <p>Sarah E. Schrunk, who is a daughter and sole heir at' law ■of the testator, filed objections to the probate of the will,.alleging that the testatrix at' the time of the execution of the will was mentally incompetent to make the will; that the will was obtained by undue influence exercised upon her to an extent that it was not her will; and that the will was not signed and executed by her as required by law.</p> <p>The county and circuit courts after hearing the testimony in the case found that the instrument was signed and in all respects executed as a will pursuant to the statutes, that the testatrix had testamentary capacity to make the will, and that it was not made as the result of undue influence exercised upon her, and admitted the will to probate as the last will and testament of the deceased.</p>

<p>Appeal from a judgment of tbe circuit court for Trem-pealeau county: E. 0. TIigbee, Circuit' Judge.</p>

<p>Appeal from a judgment of tbe circuit court for La Crosse county: E. C. IIigbee, Circuit Judge.</p> <p>The plaintiff brings this action to recover damages for an injury received by reason of his arm having been caught between a pulley attached to the cylinder shaft of a threshing-machine and a belt running from such pulley to operate a self-feeding device attached to the machine. The machine was on exhibition at' a county fair held at La Crosse in September, 1912. Its front end faced east and on its south side a viewing platform was erected which was fourteen feet long, thirty inches wide, and four feet and four inches above the ground. There was a railing around this platform about two feet high. At the east end of the platform there were four steps leading to it which had no railing. The pulley on the cylinder shaft where the injury occurred was five feet five inches from the ground, and the platform was thirteen inches below the center of this pulley. There were three pulleys on this shaft on the side where the injury occurred, and plaintiff was caught on the one closest to the machine and farthest from the platform. The belt was four feet long and four inches wide and ran upward at an angle of about forty-five degrees, as claimed by the defendant, and at a lesser angle according to the claim of the plaintiff. The upper pulley on which this belt ran is claimed to be seven feet eleven inches from the ground. The platform was about two feet south of the separator. It was claimed by the defendant that' the railing of the platform extended from fourteen to eighteen inches east of the cylinder pulley in which the plaintiff was caught It is claimed by the plaintiff that the railing did not extend far enough east to be in line with the cylinder shaft.</p> <p>Plaintiff with two others went up on the viewing platform to observe the machine in operation. Plaintiff testified that one of his companions first went down the steps and he and the other companion were going down together when some one stepped between them and jogged the plaintiff with his shoulder so that plaintiff fell over and got his arm caught between the belt and the pulley, and that he was on the second step and stepping onto the third when this occurred. There was testimony tending to show that the hat of the man who jostled the plaintiff had blown off and that the jostling was the result of his making a quick grab for his hat'. The negligence relied on was the failure of the defendant to place a railing on the side of the steps nearest to the machine.</p> <p>The jury returned a general verdict assessing plaintiff’s damages at $3,500. These damages the court deemed excessive and gave the plaintiff an option to take judgment for $2,000 or a new trial. Judgment was entered for $2,000 and costs in favor of the plaintiff and against the defendant, from which judgment defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Grant county: Geoege Clementsoet, Circuit Judge.</p>

<p> Rape: Evidence: Sufficiency: “Utmost resistance.” </p> <p>1. To constitute rape there must be an entire absence of consent, and there must be the utmost resistance by the woman by all means within her power.</p> <p>2. “Utmost resistance” is a relative term; and what would constitute such resistance on the part of a weak, nervous, and timid person might be the veriest sham on the part of a healthy, robust, and courageous person.</p> <p>3. The evidence in this case as to nonconsent and resistance is held sufficient to sustain a conviction of rape.</p>

C. Esciiweilee, Circuit Judge. This is an action to recover moneys the plaintiff claims are due him under a contract with the defendant to conduct an insurance business in the city of Milwaukee. The cause was tried to the court and judgment awarded for the plaintiff in the sum of $1,789.60 with interest thereon at six per cent, per annum from June 20, 1911. The defendant Bacher was an insurance solicitor in the city of Milwaukee on and prior to September 1, 1905.

J. TueNER, Circuit Judge. Ejectment. Tbe plaintiff appeals from an order denying an application to revive the action.

This was a mandamus action instituted by an alleged successful candidate, at the November election, 1914, for the office of United States senator for Wisconsin, to compel certain boards -of county canvassers to complete the canvass of original returns from the several election precincts in their respective counties without waiting upon the result of recount proceedings under-sec. 86 of the Statutes, and to deliver the duly certified results to their respective county clerks;…

MaNDAMus action to compel the Board of Canvassers of Milwaukee County to complete its canvass of the returns from the various election districts in such county of the results of the election for county officers held in November, 1914, and to issue certificates of election, evidencing the result of the canvass, particularly as to the relator, IP. C. Zabel. Issue was joined by demurrer to the return.

Williams, Circuit Judge. Plaintiff brought this action in tbe civil court of Milwaukee county to recover damages caused to his automobile by running into the rear of a wagon that was being driven by the defendant on one .of the streets of the city of Milwaukee. The collision occurred shortly after 6 o’clock on October 10, 1913. It was drizzling rain and quite dark. The alleged negligence of the defendant consisted in not carrying a light as required by a city ordinance.

<p>Appeals from a judgment of the circuit court for Milwaukee county: W. J. Tuestee, Circuit Judge.</p> <p>Action to recover damages for breach of contract of carriage.</p> <p>December 16, 1909, plaintiffs purchased, at East St. Louis, Illinois, a quantity of water-soaked alfalfa meal. It was required to be kiln dried to save it for use. To that end it was arranged to ship the stuff over the -Alton Railroad line and that of Chicago, Milwaukee & St. Paul Railway Company, the two being connecting lines, to Milwaukee, Wisconsin. The agents of both lines knew of the perishableness of the freight. The Alton Company received it as routed over the two lines to the desired destination, issuing an appropriate freight bill, containing a printed limitation of its liability for damages to such as might occur on its own line. Plaintiffs’ attention was not specifically called thereto. They did not assent-to such limitation by delivering the freight and accepting the proper contract without protest. After many cars had been started over the Alton line, a few of which duly reached Milwaukee, because of delay in getting cars from the connecting point in the switching district at Chicago, to Milwaukee, plaintiffs directed a diversion to Cragin, Illinois, thinking to have the property treated there instead of at Milwaukee. The nature of the material was such that pretty prompt treatment by drying was necessary to prevent its becoming worthless. Plaintiffs did not make final' arrangements therefor at Cragin, Illinois, until some six days after the last of the cars aforesaid were loaded out at East St. Louis, — all of which in due time made the transit of that line. During the delay, twenty-one cars more were loaded out at East St. Louis and likewise duly made the transit of the Alton line. There was a bill of lading for each car of the nature aforesaid. This action has reference only to the twenty-one cars. They were routed over the Alton Railroad and the Chicago, Milwaukee & St. Paul lines, consigned to the American Malting Company at Cragin, Illinois, where plaintiffs designed to receive them. There was conflicting evidence as to the value of the freight when delivered into the care of the Alton Company. Prior to the time of the particular shipments cars of the first lot had been placed on the track for the consignees at Cragin, Illinois, but not before there had been considerable delay. None of them had been unloaded. There were several rail connections between the Alton terminal and the destination at Cragin, besides the Milwaukee line. Plaintiffs did not know of tbat fact. A reasonable time for movement of freight from East St. Louis to the termination of the transit was about five days. The ears in question were loaded out for the Alton, as follows: January 25, 1910, three cars, the next day four ears, the next eight ears, the next one car, and the next five cars. All except one duly reached the termination of the Alton transit; but were not taken over by the Milwaukee line until March 6, 1910. They were transferred by the latter to the point of consignment the next day. Plaintiffs then refused to receive the freight because it had become worthless in the transit. The delay in the transfer from the Alton to the Mihuaukee line was because, January 25, 1910, the latter notified the former that, until further notice it would not receive cars of alfalfa meal for the American Malting Company at Cragin, Illinois. The reason assigned was blockade of freight. March 2d, thereafter, and before notice of any change, the Alton Company was again notified by the Mihuaukee Company of a freight blockade as to its line, no reason being assigned, and acceptance of the delayed cars conditioned upon, prepayment of freight and guaranty of switching charges. Agreeable to the second notice, the Alton line assumed the-switching charges and guaranteed the freight charges, previously having requested plaintiffs to assume the burden which, they refused to do upon the ground that the contract of af1 freightment entitled them to tender of the freight to the consignee at the place of consignment. At the time of the first notice, the Milwaukee line had on its track thirty-eight of the-first lot of cars. January 29, 1910, plaintiffs complained to. the Milwaukee line of its refusal to transfer cars to the consignee and, four days later, received reply that it could not remedy the situation until the consignee cleared its tracks of' cars already delivered. Before such reply was received,, plaintiffs notified the Milwaukee road that they would not receive the freight held on its road, nor pay the freight charges,. nor clear the track as demanded, because the meal had become worthless in the delayed transit, and requested the company to remove the cars of worthless stuff in order that the later cars, which were still in a condition to be saved, might be set in. Later, as a result of some negotiations, plaintiff unloaded and dried some ten or more cars. There was a conflict as to whether it received the stuff as delivered according to contract, or to minimize damages for which defendants might be liable. The effort to thus save the stuff was not successful and, thereupon, the Milwaukee Company was notified that the twenty-one cars which had been held as aforesaid, would not be received nor the freight paid. The meal in those cars was all spoiled before this time.</p> <p>All matters aforesaid were established, or there was evidence in regard to them. The theory of the plaintiffs was that the freight was received on a through bill of lading, without limit of liability; that the Alton line had authority to make such a contract, binding the Milwaukee Company thereto; that the latter unreasonably delayed the delivery, and that both companies were liable.</p> <p>The trial court decided, as matter of law, that the Milwaukee Company was justified in declining to receive cars from the Alton up to the 3d or 4th of February, 1910, and submitted other matters to the jury for a special verdict, with this result: The alfalfa was worth $4 per ton when loaded out at East St. Louis. The refusal of the Milwaukee Company to receive the cars after February 3, 1910, was unreasonable. Before the refusal to unload, the meal became worthless. Plaintiffs were not negligent in loading out their property at East St. Louis faster than it could be duly taken care of on the track of the consignee. They were not negligent in failing to give the Alton Company, disposition of the meal after notice of inability to make delivery to the Mihvaur kee Company, which proximately contributed to the loss. The meal in one of the cars had no value when it arrived in Chicago.</p> <p>The trial court held with plaintiffs as to the limitation clause in the hills of lading being ineffective, and that, under the circumstances, it was entitled to recover of both defendants $4 per ton for the meal in twenty cars, and at the same rate of the Alton Company for that in, the additional car.</p> <p>Judgment was rendered accordingly. The defendants separately appealed.</p>

<p> Appeal: Review: Findings of fact: Evidence: Sufficiency: Sale of corporate stoclc: Fraud of purchaser: Confidential relations: Overreaching: Contracts: Construction: Retention by party: Estoppel.. </p> <p>1. Conclusions of fact reached, by wrong application of legal principles do not fall within the rule which prohibits this court from disturbing the trial court’s findings of fact unless they are against the clear preponderance of the evidence.</p> <p>2. The fact that one stockholder in a corporation, in negotiating for , the purchase of the shares of another stockholder toward whom he sustained confidential relations, made strong representations-, relative to the lack of integrity and the extravagance of the persons in control of the corporation and the ruinous results which-were likely to follow from a continuance of their management,, does not justify a finding of fraud in the purchase, where he-acted in good faith and honestly and fully believed what he said' was true, even though he had exaggerated ideas as to the impending danger.</p> <p>3. The evidence in this case is held not to sustain findings of the trial court to the effect that defendant took advantage of confidential relations existing between himself and plaintiff and by overper-suasion and overreaching induced her to sell certain corporate stoclc to him; but, on the contrary, to show that in such purchase defendant dealt fairly and honestly with plaintiff and was guilty of no overreaching, unfair, or unconscionable conduct.</p> <p>4. A contract providing for the purchase of corporate stock, to be paid for within eight years, that it should be held in escrow until paid for, that the dividends should be paid to the purchaser but should be used to pay interest on the purchase money, and that in case of default in making any payment of principal or interest the agreement should become void, the deposit be terminated, and the stock returned to the vendor, is construed as giving the vendor an option to declare the contract void in case of default, or to enforce it and collect the purchase price, as she might choose.</p> <p>5. A privilege reserved in such a contract to pay the entire purchase price before the expiration of the time limited therefor, is not an unusual provision, nor can it be said to be unfair or unconscionable toward the vendor.</p> <p>6. The law will not permit a person capable of understanding a contract to sign it, retain it, and afterwards avoid it upon the pretext that it was not understood.</p>

<p> Highways: Duties of superintendent: Diversion of creelc: Appraisement of damages. </p> <p>Secs. 128G-1237a, Stats., provide for appraisement of such damages only as are caused by the acts of the superintendent of highways or persons under his direction who enter upon lands adjoining to or near a highway under the authority of said sections for the purposes therein mentioned, but not of the damages caused by any wrongful acts in the improvement of the highway- — such as diverting the course of a creek within the limits of the highway — without entry upon any adjoining land.</p>

<p> Municipal corporations: Removal of police officer: Power of police and fire commission: Charges, by whom to be filed. </p> <p>1. In a proceeding under sec. 959 — 45, Stats. 1913, for removal of a member of the police or fire department in a city of the second or third class, the hoard of police and fire commissioners can act only upon written charges filed by the chief of the department or by an elector of the city.</p> <p>2. Where an administrative tribunal of limited jurisdiction is by a fair construction of the statute giving it authority required to act upon written charges made by designated persons, action in the absence of such charges is without jurisdiction and void.</p> <p>3. Suspension is an ad interim stoppage or arrest of official power and pay. Removal terminates wholly the incumbency of the office or employment.</p>

<p> Ejectment: Who may maintain. </p> <p>One in peaceable possession of land under a claim of ownership, even if in fact he has no title, may maintain ejectment against a mere trespasser who intrudes upon such possession.</p>

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Ray Steveys, Circuit Judge.</p> <p>Action by the beneficiary named in a benefit certificate for $3,000 issued by the defendant upon the life of one Frank IT. Curtis, plaintiff’s brother. The action was tried by the court. The essential facts are these: The defendant is a fraternal benefit association insuring its members on the assessment plan. It accepted the said Frank H. Curtis as a member April 19, 1892, and issued to.him a benefit certificate. This certificate was surrendered May 13, 1902, and a new certificate issued naming the plaintiff as beneficiary, and containing the condition that if the insured became intemperate in the use of alcoholic drinks or in the use of drugs or narcotics the certificate should become null and void; also the further condition that the certificate should be subject to forfeiture for any cause or causes then prescribed by the by-laws or which might thereafter be prescribed by the society, by amendment of the by-laws. Frank H. Curtis died April 6, 1913, of delirium tremens due to the intemperate use of intoxicating liquors. About the year 1898 the said Curtis became intemperate in the use of alcoholic drinks and continued so for years to the knowledge of the officers of the local camp or lodge, of which he was a member. The assessments on the certificate continued to be regularly paid, however, and the local camp continued to receive them and transmit them to the head or governing camp. The by-laws provided that no local camp or officer thereof should have power to waive any provision of the by-laws. The head camp never knew that the deceased was intemperate prior to his death. September 1, 1911, the defendant enacted a by-law providing that if any member “heretofore or hereafter adopted” should become intemperate in the use of intoxicating liquors ... or if his death should result directly or indirectly from the use of intoxicating liquors, then his certificate should become null and void. The assessments on the certificate were fully paid up to the time of the death of the insured. The trial court held that there could be no recovery and dismissed the complaint, and the plaintiff appeals.</p>

<p> Street railways: Injury to person boarding car: Contributory negligence: Evidence: Admissibility: Special verdict: Harmless errors. </p> <p>1. In an action for injuries sustained in attempting to board a street car, the evidence being ample to sustain the jury’s finding that plaintiff was guilty of contributory negligence, the exclusion of evidence which, even if admissible, could have had only a remote and inconsequential bearing on that question, was not prejudicial error.</p> <p>2. It was not improper in such case to submit in the special verdict a question as to whether plaintiff ought to have seen that the door of the car was closed before she attempted to board the car — its purpose being to ascertain whether or not she was a passenger when injured; and even if erroneous such submission was not prejudicial, since it could not have influenced the jury in answering the question as to contributory negligence.</p>

Ray Stevens, Circuit Judge. Action to recover for a personal injury. Defendant operated electrically propelled pay-as-you-enter cars. In starting a ear from a position of rest, there was, commonly and necessarily, a sudden movement, rendering exercise of care necessary by one standing in a car to avoid danger of losing safe self-control. Plaintiff knew that. She was a woman thirty years of age on tbe occasion in question.

. Mandamus action to compel the city clerk of the city of Janesville, Wisconsin, to extend upon the tax roll of such city the duly ascertained and certified indebtedness of said city for the expense of a reassessment under sec. 1087 — 45 to sec. 1087 — 57, Stats.

MaxdaMus to Herman L. Ekern as insurance commissioner of the state.

Rat SteveNS, Circuit Judge. Action to recover $1,760.63 claimed to be due from defendant under an agreement alleged to have been entered into between him and one Bridge, who was indebted to plaintiff in tbat amount. Bridge owned a hotel at Portage which on July 17, 1911, be agreed to deed to tbe defendant free of all liens or claims except two mortgages amounting to $10,000.

Ray Stevehs, Circuit Judge. This action is brought by the plaintiff against the defendant and the treasurer of Dane county to restrain the collection of certain special assessments levied on plaintiff’s property oy the common council of the city of Sloughlon. The plaintiff was the owner of certain property in the city of Stoughbon over which the defendant laid out and established a public alley.

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Rat SteveNS, Circuit Judge.</p>

Action to recover tbe purchase price of a motor. September 1, 1911, tbe plaintiff and defendants entered into a contract known as a “Dealers Agreement,” whereby tbe latter were given tbe exclusive right to sell in a specified territory motor cars manufactured by plaintiff.

Action of partition. Plaintiffs claim to own an undivided one-tenth interest in thirty acres of farm land as the heirs at law of one Agnes Yost, who was one of the ten surviving children of Richard Wiele. The trial court found that the-defendants had obtained title to the land by adverse possession.

Ray Stevens, Circuit Judge. Tbe petitioner, Eanzlih, by bis first petition claims that be is entitled to interest upon certain coupons _ wbicb bad been attached to bonds issued by the defendant railroad company, and that past-due coupons are prior in right of payment to the bonds and coupons of later maturity. The bonds are secured by a trust deed.

The plaintiff.brings this action to recover damages for the-death of her son, alleged to have been caused by the negligence of the defendant. The complaint alleges that the deceased was invited to ride upon defendant’s freight train and took a position between two freight cars, ignorant of the dangers, and that the train was run at an unlawful rate of speed over a defective track and deceased was thrown off and killed.

Plaintiff brings this action to recover damages for injuries alleged to have been sustained as a result of an assault made upon her by the defendant on November 22, 1912.

Action of quo warranto challenging defendant’s title to the office of clerk of school district No. 3 in the city of Appleton.

This is an action npon a sealed contract of guaranty. A demurrer to the complaint having been sustained, the plaintiff appeals.

Action impeaching the validity, on the ground of fraud, c>f an antenuptial agreement, and to have it and the record thereof canceled. Tbe court found these to be the facts, in general effect: September 2, 1901, plaintiff and Joseph Bibelhausen, now deceased, without any preliminary arrangements as to property, mutually agreed to become man and wife. September 11th, thereafter, they visited the city of Milwaukee for the purpose of having their marriage ceremony performed.

<p> Sales: Quantity of logs delivered: Instructions to jury: Evidence: Memorandum. </p> <p>1. In an action to recover the purchase price of logs, the only question being whether the plaintiff’s or the defendant’s scale of the logs was correct, the court properly instructed the jury to that effect and that if they found the scale of the logs as claimed by the plaintiff to be correct they must find in his favor for the unpaid balance of the purchase price.</p> <p>2. The admission in evidence in such case of a tabulated statement of the quantity of the different kinds of logs delivered by plaintiff and the amount due therefor at the agreed price, and the use of such memorandum by a witness who testified to the scaling of the logs, that he had made entry thereof in a book, and that the items in the memorandum were accurate, was not prejudicial error, it being clear that the witness had personal knowledge of the transaction referred to and that he testified from such knowledge.</p>

<p>Constitutional law: Officers: Duties: Invalid statute: Removal of town officers by circuit judge: Quasi-judicial proceeding: Review: Cer-tiorari: Appeal.</p> <p>1. An unconstitutional law imposes no enforceable legal duty upon a public officer, but the duties of the officer remain defined by existing valid laws and as if such unconstitutional law had never been enacted. Refusal to obey such a law is therefore not ground for the removal of an officer. So held as to the “force clause” in ch. 337, Laws of 1911 (sub. 3, see. 1317m — 4, Stats. 1911), relating to improvement of highways.</p> <p>•2. Where the power to remove officers is conferred upon an administrative tribunal which, either expressly or by fair implication, is empowered to hear evidence and determine the existence of facts which are cause for such removal, the proceeding is quasi-judicial and due process of law is required.</p> <p>3. By sec. 976, Stats., the power to remove town officers is conferred upon the circuit judge, not as a court, but as an administrative officer, and such power is to be exercised by gMcm-judicial action.</p> <p>-4. Under see. 8, art. VII, Const., all tribunals acting in a quasi-júdicial capacity are subject to the jurisdiction of the circuit court</p> <p>• 5. The circuit court may properly issue its writ of certiorari to the judge of that court to review his gwosi-judicial action in removing a town officer, and the judgment of the circuit court thereon may he reviewed in the supreme court on appeal.</p>

<p>Appeaí, from a judgment of the superior court of Douglas county: Charles Smith, Judge.</p>

On or about October 1, 1912, plaintiff delivered a certain amount of apples to tbe Missouri Pacific Railway Company at Willis, Kansas, for shipment to Almena, Wisconsin, a station on defendant’s line. When tbe apples arrived there was a shortage in weight of nearly one fifth, due, it is alleged, to the negligence of the defendant, and damages for such shortage are demanded.

<p> Railroads: Taxation: Terminal facilities: Ore and merchandise dochs: Property “necessarily” used is an entirety: Constitutional law: Uniformity in rule of taxation: Statute construed. </p> <p>1. The property of a public-service corporation like a railway company, including its franchises, terminals, and real and personal property, reasonably necessary to be used and in fact used in the performance of its duties to the public, is an entirety and is not to be separated for the purpose of taxation.</p> <p>2. Terminal facilities, such as freight houses, grain elevators, and warehouses, owned by the carrier and equipped with the proper appliances necessary to enable it to perform its full duty of transportation and delivery of freight of all kinds, either to the consumer, the dealer, or a connecting carrier, constitute property “necessarily used in operating the railroad,” within the meaning of sub. 3, sec. 1212, Stats. 1911, and are part of the entirety. The word “necessary,” in this connection, means reasonably required in the exercise of sound business prudence.</p> <p>'3. An ore dock and a merchandise dock owned and operated by a railway company exclusively for its own use in temporarily storing, handling, and delivering to lake carriers the ore and freight hauled by it over its lines, and in receiving from lake carriers, temporarily storing, and loading merchandise and freight destined for transportation over its railway lines, are necessarily used in operating the railroad and are terminal facilities, within the foregoing rule.</p> <p>4. The constitutional command that the rule of taxation shall he uniform (Const, art. VIII, sec. 1) is violated if a part of the property of a railway company, reasonably necessary to be used and in fact used in the operation of the railroad, be separated from the balance of the property and subjected to local taxation at a higher rate than that to which the balance of the property is subjected under the ad valorem law.</p> <p>5. The exception in sub. 3 of sec. 1212, Stats. 1911, viz. “grain elevators used in transferring grain between cars and vessels, coal docks, ore docks and merchandise docks,” includes only those .elevators and docks which are not a part of the railway property because not necessarily used by the railroad in the performance of its duties as a common carrier.</p>

<p> Railroads: Injury to bralceman: Interstate service: When federal statute governs: Election: Waiver: Questions for jury: Assumption of risk: Excessive damages: Appeal: Harmless errors: Discretionary reversal. </p> <p>1. Where the facts are undisputed the question whether a particular-service or engagement therein is of interstate character is one of law; but when material facts bearing on that question are in dispute they may properly be determined by the jury, leaving to-the court the legal conclusion to be drawn therefrom.</p> <p>2. A railway employee, while actually performing a service essential to or so closely connected with the business of interstate commerce as to be substantially a part of it, though not necessarily exclusive of all intrastate features, is employed in interstate commerce within the meaning of the federal Employers’ Liability Act.</p> <p>3. If the particular service in progress at the time of the injury, in any substantial part, is within the interstate field, then the federal law rules the case if either party so elects; but this is a. right which may be waived, expressly or impliedly.</p> <p>4. Any brief incidental absence from the scene of work or the instrumentality used therein, which is not inconsistent with the employee’s duty to his employer, such as customarily visiting a wayside place for lunch or other common means of refreshment, or waiting after one task is done for orders as to the next movement, does not preclude the employee from claiming to be still on duty and engaged in interstate commerce.</p> <p>5. Where upon the evidence the trial court might properly have found, as matter of law, that plaintiff was engaged in interstate business when injured, its submission of the question to the jury is not an error of which defendant can complain.</p> <p>6. Where, in an action for injuries to a railway employee, neither party claimed 'the benefit of the federal Employers’ Liability Act, there was no error in refusing to compel plaintiff to elect whether he would claim under the federal or the state law; and where the court applied the federal law, which was more beneficial to the defendant than the state law, the defendant has no ground for complaint.</p> <p>7. The defense of assumption of risk, available under the federal Employers’ Liability Act, applies only to such risks as the employee expressly or impliedly contracts to take upon himself because of being ordinary incidents of the business as customarily carried on, or as carried on in the particular case to his knowledge or under such circumstances that reasonable attention to his situation would afford him such knowledge. It does not include the risk of unexpected negligent acts of co-employees.</p> <p>8. An award of $10,000 for injuries to a brakeman’s foot, necessitating amputation of the leg between the ankle and the knee, is held not so large that this court should reverse the judgment, under sec. 2405m, Stats. 1913, on the ground that justice had miscarried, where, although the proper motion was made in the trial court, the question was not argued upon the appeal.</p>

<p>Appeals from a judgment of the circuit court for Douglas county: W. J. Turneb, Judge.</p> <p>The action is to recover the unpaid part of the contract price for a course of instruction in the correspondence school of the plaintiff. It is brought against the defendant as guarantor of an infant’s contract.</p> <p>The principal contract was made with one Clarence Johnston. He and plaintiff’s agent requested Mabbott to sign as guarantor for Johnston. Mabbott testified that he was very busy at the time and did not pay much attention to it, but signed the contract as requested. The contract, dated March 16, 1912, was for a course of instruction in the plaintiff’s correspondence school for which Johnston was to pay $53.55,- — $5 down and $3 every month thereafter until the contract price was paid. Johnston paid the $5 down and one instalment of $3. Thereafter no more was paid.</p> <p>At the trial in the justice’s court the action was brought against Johnston and Mabbott. Johnston interposed the plea of infancy and disaffirmed the contract. The action was dismissed as to him upon proof of his infancy. The action was then prosecuted against the defendant Mabbott only, and by the judgment in the justice’s court the action was dismissed. Mabbott testified that he did not know and was not informed that Johnston was an infant and that he did not read the paper.</p> <p>A trial was had in circuit court upon appeal and judgment was entered for the plaintiff for the amount due on the contract up to the time Johnston disaffirmed the contract in justice’s court, namely, the sum of $36, with interest and costs. From this judgment both parties appealed.</p>

<p>Appeal from a judgment of tbe circuit court for Douglas county: Ejsanic A. Ross, Circuit Judge.</p> <p>This action was brought to recover damages for injuries to plaintiff’s goods by alleged failure to safely carry the same from the city of Superior to Winnipeg, Manitoba.</p> <p>The answer denies generally the material allegations of the complaint, and sets up that defendant received the shipment on the Ith of April, 1910, to be carried over its line from Superior to Emerson, a point on the boundary line between the United States and the Dominion of Canada, and' agreed to transport in the usual course of business pursuant to the terms of two agreements, viz. bill of lading and property release. The answer further sets up the special contract limiting liability; that the defendant received shipping orders and payment of freight, and in compliance with such orders the goods were shipped; that the property arrived at Emerson and was promptly delivered to the Canadian Northern Railway Company; that none of the property was damaged while on defendant’s line, and if damage occurred at all it was while the property v7as on the Canadian Northern railroad.</p> <p>The jury returned the following verdict:</p> <p>“(1) Was the property.in question damaged in transit from time of loading to delivery at Winnipeg? A. Yes.</p> <p>“(2) If you answer question 1 'Yes,’ in what amount was it damaged? A. $1,000.</p> <p>“(3) Was the said property put into the car in such manner as to render the same reasonably secure against damage from transportation to Winnipeg under ordinary conditions ? A. No.</p> <p>“(4) If you answer question 3 ‘No,’ to what extent, if at all, did the manner of loading the car contribute to the damage? A. $300.</p> <p>“(5) If you answer question 1 'Yes,’ was the damage to said property caused by any wmnt of ordinary care on the part of the defendant or of the Canadian Northern Railway Company? A. Yes.</p> <p>“(6) If you answer question 5 'Yes,’ which of the two railroads caused such damage ? A. Canadian ISTorthern Railway Company.”</p> <p>The usual motions were made by plaintiff and denied and judgment entered for defendant dismissing the complaint, from which judgment this appeal was taken.</p>

<p>Taxpayers' action: Who may maintain: Nonresident taxpayers: Question, how raised: Equity: Adequacy of legal remedy: Toiuns: When may exercise powers of village boards: Population, how determined: Census not conclusive: Ultra vires acts: Estoppel: Toivn orders: Validity: Necessary parties: Illegal highway contracts: Laches: Claims: Alloxoing excessive amount: Contracts between town and its officers: Statute construed: Sale of property or thing in action: Services: Poor persons: Payment of their debts: Excessive supplies: Validation: Itemizing and verifying claims: Refiling: Allotoance by electors: Street lighting: Costs against town officers.</p> <p>1. The question'whether nonresident taxpayers of a town can maintain an action against the town and the holders of town orders alleged to he invalid, to set aside and annul such orders, is properly raised hy answer setting up nonresidence and averring want of capacity to sue.</p> <p>2. The wasting, hy unlawful expenditure, of public funds raised by taxation is a wrong which affects resident and nonresident taxpayers alike, and either can maintain an action to redress the wrong.</p> <p>3. Objection to an action hy taxpayers to restrain the payment of illegal town orders, on the ground that the plaintiffs have an adequate remedy at law by paying the tax levied therefor under protest and suing for its recovery, or by an equitable action to remove the cloud upon their property created by the illegal tax, is not well founded, since a resort to either of those remedies would result in creating a deficit toward which they would have to contribute. Only by enjoining the payment of an illegal order can complete immunity be had against the illegality.</p> <p>4. The levy of an illegal tax, the letting of contracts in contemplation of its collection, and the doing of work and issuance of town orders thereunder, presents more than a mere contemplated or threatened injury to taxpayers, and shows an existing equitable cause of action in their favor.</p> <p>5. Upon the question whether a town having therein one or more incorporated villages has a population of 500, so as to enable it, by vote of the electors, to exercise the powers of villages and village boards, as provided in sub. 13, sec. 776, Stats. 1913, the federal census is prima facie evidence of the population it discloses; but, in the absence of any statutory declaration on the subject, neither that nor any other existing census can be held conclusive when the fact is challenged.</p> <p>6. When the existence of the requisite population is put in issue, any evidence competent to establish the existence or nonexistence of the fact is admissible.</p> <p>7. The rule against the impeachment of official documents does not apply to a challenge, in such a case, of the correctness of the enumeration of a state or federal census.</p> <p>8. The doctrine of estoppel cannot be successfully invoked to sustain acts of a town which are clearly ultra vires. McGowan v. Paul, 141 Wis. 388, followed.</p> <p>9. A judgment in a taxpayers’ action cannot lawfully determine the validity of town orders not issued to nor held by any of the parties to the action, and the fact that the holders may be numerous or scattered cannot affect their right to be heard.</p> <p>10. Error in a judgment in a taxpayers’ action, in that it attempts to pass upon the validity of town orders held by persons not before the court, does not affect its validity in respect to orders held by the defendants in the action.</p> <p>11. A contract by town officers in excess of their powers, as one for work upon a highway having no legal existence, is void and cannot be validated by performance on the part of the contractor.</p> <p>12. Even if the doctrine of equitable estoppel could, under any circumstances, apply to such a case, there would be no ground therefor where the work was done upon premises which were never used for highway purposes, so that the town received no benefit therefrom.</p> <p>13. An action brought in September to restrain the payment of town orders issued under illegal contracts made in the preceding June, cannot be defeated on the ground of laches.</p> <p>14. Electors of a town cannot give away the money of the taxpayers, and an order based upon a vote of the electors allowing one of the supervisors $200 upon a claim of only $175, for logs of a horse, is void.</p> <p>15. Sec. 4549, Stats. 1913, which makes it an offense for any town officer to have, reserve, or acquire any pecuniary interest, directly or indirectly, present or prospective, absolute or conditional, in any “purchase or sale of any personal or real property or thing in action,” or in any contract or bid relating thereto, applies as well to sales by such officer directly to the town as to sales made by other persons in which he has or acquires an interest; and all contracts in contravention of the statute are absolutely void.</p> <p>16. Said statute, being highly penal, must be strictly construed, and cannot be held to prohibit contracts for personal services.</p> <p>17. Where a merchant supplies goods to a poor person in excess of the amount authorized hy the town supervisors, hut in good faith upon the credit of the town, the town hoard may afterward, hy ratification, validate such excess.</p> <p>18. In a taxpayers’ action to annul certain town orders, where the claims upon which the orders were issued were inadequately itemized or verified, the court, upon the trial, properly allowed the claims to he refiled, properly itemized and verified.</p> <p>19. A town has no power to pay a debt of a poor person for house rent, or any other debt of such a person, which was not lawfully incurred on the credit of the town.-</p> <p>20. A claim for damages to a ladder, though small in amount, must he passed upon by the electors before the town hoard has authority to pay it.</p> <p>21. A town has no authority to expend money for street lighting, and a purchase hy the town hoard for that purpose is ultra vires and. void. 22. The awarding of costs in a taxpayers’ action to restrain the payment of illegal town orders, is a matter resting in the sound discretion of the trial court. Under the evidence in this case, which disclosed many irregularities and great looseness in the administration of town affairs, there was no abuse of discretion in awarding costs against the town officers and other defendants, hut not against the town.</p>

Action for breach of contract to deliver lumber. Plainjiff manufactures chairs at Superior, and defendant operates a sawmill in Iron county.

0. Ludwig, Circuit Judge. Action to recover part of an income tax paid by plaintiff under protest to tbe defendant, the city of Milwaukee, upon income for the year 1911. The defendant demurred to plaintiff’s amended complaint and appealed from an order overruling its demurrer. They argued, among other things, that dividends from mining stocks are “income” within the intent of the law. Stratton’s Independence v. Howbert, 231 U. S. 399, 34 Sup.

EkboR to review a judgment of tlie circuit court for Eau' Claire county: E. Ray Steveks, Judge. Plaintiff was, in due form, convicted of the crime of assault with intent to commit the crime of rape. The alleged event occurred at Eau Claire, Wisconsin, in the daytime of August 13, 1913, and in the dining room of the woman’s home. He was thirty-five years of age, a man of family, and a resident business man of Eleva, Wisconsin.

<p>Appeal from an order of tbe circuit court for Milwaukee county: E. C. Eschweilee, Circuit Judge.</p>

Halsey, Circuit Judge. Plaintiff sued in the civil court of Milwaukee county to recover $93.35 for repairs upon and storage of defendant’s automobile and recovered judgment therefor after a trial by the court, a jury trial having been waived. The defendant appealed to the circuit court, where the judgment was affirmed upon the record notwithstanding the •defendant’s demand for a trial by jury. The defendant appeals from that judgment.

Personal injuries. Plaintiff was a fireman on a passenger-engine, and was in some manner injured while attempting to get on bis engine in tbe railroad yard at Janesville at about 6 :45 o’clock a. m. September 26, 1911.

W. BubNell, Circuit Judge. Plaintiff brings this action to foreclose a mortgage and for the sale of the property mortgaged. In 1890 the defendant Bong was the owner of lot 14 and an undivided three-ninths of lots 15 and 16 in block 42 in the city of Green Bay. In 1891 he mortgaged his interest in this real estate to one Vro-man. The remaining six-ninths of lots 15 and 16 were owned by the children of Bong.

W. BueNell, Circuit Judge. This action was brought to recover for alleged demurrage •charges on cars of logs and bolts shipped to appellant at Menasha, Wisconsin, in June and July, 1908. Two causes ■of action are set out in the complaint; the first for demurrage .accruing on intrastate shipments, and the second for demur-rage accruing on interstate shipments.

Halsey, Circuit Judge. Action on tbe bebalf of tbe plaintiff to adjudge void art. VIII of tbe charter of tbe defendant corporation; or in case it is held valid to reform it, and as reformed to declare it fully performed and no longer in force; to adjudge plaintiff tbe lawful owner of certain stock bought from the defendants Kali and to direct its transfer to plaintiff on tbe books of tbe corporation; to declare plaintiff rightfully entitled to certain shares of tbe new stock…

This action was brought to recover damages for the destruction of the plaintiffs barn and harvested crops by fire alleged to have been caused by defendants’ negligence in equipping their threshing engine. The answer denies generally the allegations of the complaint and alleges that the plaintiff’s damage, if any, was caused by the contributory negligence of the plaintiff.

Williams, Judge. This action was brought to quiet title to eighty acres of land in Polk county in which, it is claimed, the defendant, Ede Marcotte, has a right of dower. The complaint prays that the plaintiffs have judgment that their claim and title he established against any claim of .the defendant, and that she be forever barred against claiming any right or title to the lands in question adverse to the plaintiffs.

Action to recover on promissory note. In 1911 and 1912 the plaintiff was engaged in the business of selling teas, coffees, and other wares on the premium plan, and carried on its business by the use of a horse and wagon driven over six routes about Janesville and six routes about Beloit. Each route was designed to take one day’s time and was traveled once in two weeks.

Action upon an insurance policy to recover for the loss of a horse claimed to have been injured by lightning. The answer denied the fact that the horse was injured by lightning and alleged that defendant was induced to adjust the loss by reason of the false and fraudulent representations of the plaintiff that the cause of the injury to the horse was lightning.

Action to recover the contract purchase price of sugar beets and compensation for pitting same. January 18, 1911, the plaintiff entered into a written agreement with the defendant to plant, cultivate, and harvest in good and workmanlike manner two or more acres of sugar beets and deliver the same to the defendant, who was to furnish seed and give instructions for doing the work.

Action to recover compensation for selling sugar beet pulp and damages for breach of contract.

W. Lamoeeux, Judge. This is an action for - a divorce from the bonds of matrimony based upon the ground of cruel and inhuman treatment of the plaintiff husband by the defendant wife. The defendant counterclaims and alleges cruel and inhuman treatment of her by the husband and prays for a judgment of divorce. The plaintiff was fifty-seven years of age and the defendant forty-one years of age. Both parties had- been married before.

W. LamoREux, Judge. This action was brought upon a written contract entered into between the parties for the leasing of a farm and division of product. Under the terms of this lease the plaintiff was to work the defendant’s farm of 282 acres upon shares, plaintiff to have one third and the defendant two thirds.

D. Hastings, Circuit Judge. .During the fall of 1906 the defendant H. W. Baldwin was indebted in the sum of about $10,000. Of this amount he owed $5,000 to the Citizens National Bank of Green Bay, secured by mining and oil stocks; about $2,500 to the Building & Loan Association of Green Bay, which was secured by two mortgages on his homestead; and about $2,500 in floating indebtedness.

D. Hastings, Circuit Judge. Action for damages resulting from a collision of two automobiles. The parties were rival dealers in automobiles. The plaintiff, driving a Eord runabout, in wbicb he and his eleven-year-old son were seated, was approaching Kewaunee and going up a long hill, called I/utien’s hill, in the outskirts of the city.

D. HastiNgs, Circuit Judge. Action to recover compensation for tbe death of plaintiff’s intestate. On tbe 1st day of November, 1912, tbe deceased with others, working under a foreman, was in tbe employ of defendant and engaged in opening up a logging road. All were experienced woodsmen. Tbe. particular trees to be removed bad been blazed. Tbe removal was being accomplished, mainly, by cutting tbe roots close to and under tbe surface of tbe ground.

<p> Contraéis: Parol evidence to vary writing: Sale of automobile: False representations: Warranty: Breach: Recoupment: Evidence: Pleading: Counterclaim. </p> <p>1. Where a second-hand automobile was sold and delivered under a written contract, plain and unambiguous in its terms and containing a statement that there were no verbal understandings, promises, or agreements except those specified therein, parol evidence of representations as to the age and condition of the ear, alleged to have been made by the vendors in negotiating the sale, was not admissible to vary the contract.</p> <p>2. In an action upon a note given for the purchase price of an automobile which was “guaranteed” by the vendors for one year, the trial court properly held, as matter of law, that the evidence did not tend to show any breach of the warranty by neglect or refusal of the vendors to make such repairs as were required thereby.</p> <p>8. An answer setting up a claim for recoupment of damages by reason of a breach of warranty of goods sold, is sufficient to raise the question of defendant’s right to such damages, even though judgment therefor is not formally demanded by way of counterclaim.</p>

<p>Appeal from a judgment of the circuit court for Brown county: S. D. Hastings, Circuit Judge.</p> <p>The complaint in this action alleges that on the 2d day of March, 1911, the defendant leased to the plaintiff certain premises owned by him known as Harbor View, situated on the bay shore of Green Bay, near the city of Green Bay, for the term of one year from the 1st day of May, 1911, with, covenant of peaceable and quiet enjoyment for said term, at an annual rental of $500, and also with option on the part of plaintiff to occupy said premises for three years’ additional time, and that the defendant on the 1st day of July, 1911, unlawfully and wrongfully entered upon the premises and ejected the plaintiff therefrom and ever since has occupied the same and kept the plaintiff out of possession, to its damage in the sum of $1,000.</p> <p>The lease in question is made a part of the complaint. The defendant answered admitting the execution of the lease and the corporate existence of the plaintiff, and denies every other allegation of the complaint, and sets up several separate defenses, among others that the plaintiff ran the property in an unlawful and illegal manner and on the 1st day of July, 1911, abandoned the premises; and for a further defense alleges in substance that the plaintiff is the owner of a resort near by the defendant’s property known as Bay View Beach, and that plaintiff leased the defendant’s property for the purpose of injuring the defendant’s property and enhancing the value of its own. The defendant- also sets up a counterclaim claiming damages on account of the bad reputation which the plaintiff gave the property in managing and running the same as an improper place, and asks damages in the sum of $1,000.</p> <p>The plaintiff replied to the counterclaim denying the allegations thereof. The portions of the lease material in this case are as follows:</p> <p> “ </p> <p>• “Witnesseth, that the party of the first part hath agreed and doth hereby agree to lease unto the said party of the second part, the following described premises, to wit: two acres in private claim forty-six (46) with all buildings thereon, known as Harbor View premises or Buckley’s, and situated east of the grounds leased by John A. Cusick at Bay Beach, also including the following personal property: one cash register, twelve tables, three dozen chairs, three rustic benches, one cook stove, knives and forks, fifteen dozen bar glasses, three beds, three mattresses, three springs for bed, six pillows, three dozen chairs, one rug, one sideboard, two wash tubs, one cupboard, ten towels, three dozen bathing suits, two gasoline stoves, two burners for stoves, one dozen dishes, also including bath house.</p> <p>“It is agreed that if so desired by the party of the second part, an extension of three additional years will be granted at the same rental.</p> <p>“To have and to hold the same for the term of one year from the first day of May, A. D. 1911, at the rate of five hundred ($500) dollars per annum, payable in instalments of-dollars monthly, in advance, the said premises to be used for the purpose of hotel and saloon and bathing grounds.”</p> <p>“It is further understood and agreed, that if the party of the second part, or his assigns, shall fail to pay the rent at the times above stated, or shall use said premises, or any part thereof, contrary to the conditions herein contained, or shall wilfully or maliciously do injury to the same, this lease shall be void as to the party of the second part, and the party of the first part, or his legal representatives, shall be entitled to the immediate possession of said premises, without hindrance or delay, and to a recovery of all damages sustained by the acts of the party of .the second part.”</p> <p>The case was tried by the court and a jury, and after the evidence was all in it was agreed between the parties that the jury should be discharged and that the case be submitted to the court for its decision upon the facts and the law. The court found that the plaintiff was entitled to recover. Judgment was entered accordingly, from which this appeal was taken.</p>

<p>Appeal from a judgment of the pircuit court for Brown county: S. D. HastiNgs, Circuit Judge.</p> <p>Plaintiff brought this action to recover damages from the defendant for personal injuries and damage to his clothing and motorcycle, alleged to have been sustained as a result of a collision with a vehicle driven by the defendant. The complaint alleged that oh October 17, 1912, plaintiff was riding a motorcycle in an easterly direction on Main street in the city of Green Bay; that the defendant was driving a horse and carriage in the same direction, a short distance in front of the plaintiff; that as defendant approached the corner of Monroe avenue and Main street he turned his horse suddenly to the left to go north on Monroe avenue; that plaintiff . was about to pass to the left of the defendant, and that owing to the sudden turn to the north his motorcycle collided with the carriage, throwing him to the pavement; that the collision was the result of the defendant’s negligence in turning the corner before reaching the easterly side of Monroe avenue, in violation of an ordinance of the city of Green Bay providing that a vehicle turning to the left into another street shall pass to the right of the road and beyond the center of the street intersection before turning. By his answer the defendant denied the allegations of the complaint charging him with responsibility for the accident, and alleged negligence on the part of the plaintiff, in that he was running his motorcycle at an excessive and dangerous rate of speed, in violation of the city ordinance. The action was commenced in justice’s court, where plaintiff recovered damages to the amoimt of $17.50. An appeal was taken to the circuit court, where, by agreement of the parties, the case was tried de novo on the record from the justice’s court. The circuit court found that the evidence failed to show negligence on the part of the defendant and ordered judgment dismissing the complaint. Plaintiff appeals from a judgment entered in accordance with such direction.</p>

<p>Appeal from a judgment of the circuit court for Brown county: HeNey Geaass, Circuit Judge.</p> <p>Action for personal injury. Defendant operated a coal dock in Green Bay. May 1, 1913, plaintiff, then about twenty-seven years of age, was in its employ assisting in loading cars by means of a rig called a whirly. The rig was constructed and operated as follows: It consisted of a swinging crane mounted on a steel framework about sixteen feet high in the clear, and ran on two rails about fourteen feet apart. It would pass under the bridge of the dock and would also permit a gondola car to pass under it on another track located midway between the rails of the whirly track. The whirly rail nearest the edge of the dock was five feet from the bridge rail, which was located near the edge of the dock, and five feet four inches from the nearest rail of the car track. The crane arm was fifty-one feet long, and had a clam-shell bucket attached at the end which could not be moved in and out on the arm. The whirly was moved along the track by the engine that operated the crane. It was located in an inclosed house on the whirly about twenty-two feet above the ground. Owing to the projection of the platform on which the engine house stood, the engineer could not see the track directly in front of the whirly for a distance of some thirty or forty feet.</p> <p>In operating the whirly the crane was swung over the boat and the bucket lowered into the hold and filled with coal and then swung over the gondola car and emptied. As the bucket could not be moved in and out on the crane arm it was necessary to shift the cars while being loaded. The crew consisted of an engineer and fireman in the crane house upon the rig and three men upon the ground. One of the men moved the car by means of a pinch bar, another worked the hand brake on the car, and the third, the plaintiff, blocked the wheels of the car in order to stop it, as the track was on a' slight down grade and the hand brake would not work quickly enough.</p> <p>At the time of the injury to the plaintiff he was blocking a car tliat had been pushed down to within about twenty feet from the whirly. The car was forty feet long and the coal was being dropped into about the center of it. The angle at which the fifty-one foof. crane arm was set reduced its horizontal reach to about forty feet. Plaintiff sat on the whirly track, probably about eighteen or twenty feet from the whirly, though he claims only from four to eight feet away, watching his work, with a block ready in case it should need reblocking, when the engineer of the whirly, without any warning or signal, started it along the dock for water. No warning was customary when starting it. Plaintiff did not hear or see the approach of the whirly and was caught by it and badly pinched about the thigh.</p> <p>The jury found (1) that defendant was negligent in failing to promulgate rules requiring the giving of a signal before moving the whirly; (2) that such negligence was the proximate cause of plaintiff’s injury; (3) that the failure of the engineer on the whirly to sound a warning was a proximate cause of plaintiff’s injury; (4) that no want of ordinary care on the part of the plaintiff contributed to his injury; and (5) damages $1,400. From a judgment upon the verdict in favor of plaintiff defendant appealed.</p>

<p>Apjpeae from a judgment of the circuit court for Brown county: S. D. IIastiNgs, Circuit Judge.</p> <p>Action upon a policy of accident insurance upon the life of one William T. Ebeling, who died from the effects of a bullet wound. There were two grounds of defense -urged, viz.: that the assured intentionally shot himself, and tlíát he was of “intemperate habit,” contrary to a representation made by tbe assured in the application on which the policy was based. The action was here upon appeal from a previous judgment in plaintiff’s favor and was reversed and sent back for a new trial on account of detail errors. 154 Wis. 82, 142 N. W. 487.</p> <p>Upon the present trial the jury returned a special verdict to the effect (1) that the injury which caused the death was inflicted by Cora Edwards, and (2) that Ebeling at the time of making the application was free from intemperate habits.</p> <p>A motion for new trial was made for errors committed on the trial and on account of newly discovered evidence, but the motion was denied and judgment rendered for the plaintiff for the amount of the policy and costs, from which the defendant appeals.</p>

<p>Appeal from a judgment of the circuit court for Ashland county: G. N. Risjord, Circuit Judge.</p> <p>' This is an action to recover damages for the death of one horse and injury to another, alleged to be due to the negligence of the defendant in preventing the unloading of a shipment of horses by plaintiff within a reasonable time after their arrival at their destination.</p> <p>The plaintiff shipped a carload of eight horses from Rhine-lander to Antigo over the defendant’s road. The plaintiff sent two men with the car to look after the horses. The horses were shipped in a train wdiich was to leave Rhinelander ahont 7:30 o’clock p. m. and ivas to arrive at Antigo about 11:15 p. m.</p> <p>In making this shipment the small square door in the rear or north end of the car was left open and the side doors were also cleated open a foot or a foot and a half. When the train arrived at Monico Junction, fourteen miles from Antigo, Leith, one of the men in charge, examined the horses and they were found to he pretty well heated up^ that is, sweating. Leith and his companion place the time of arrival at Antigo between 11 and 12 o’clock. The exact time of arrival was shown to he at 11:15 p. m. The train inspectors took charge of the train of cars and placed a bine light on the front end of the train to indicate the train was undergoing inspection for safety devices under the federal law. According to regulations and rules the train cannot be broken up until such inspection is completed. It took from forty to forty-five minutes to inspect the train. Leith testified that the hoi’ses were heated and sweating when they arrived at Antigo. Soon after the arrival he spoke-to a person, whom he believed to be the yardmaster, and requested that the car be spotted as soon as possible, and was informed that it could not be spotted until a passenger train had pulled through, which was due at 2:35 a. m. This train did not arrive until 3:09 a. m. Leith and his helper went down town and had lunch, and upon returning they found the horses were cold and shivering and shaking. They then shut the side doors and Leith remained in the car with them. The car was spotted at 3 :30 a. m. The horses were unloaded between 5 and 6 o’clock that morning. The weather conditions of the night were shown to be cooler after midnight, but the thermometer did not fall to the point of freezing. It appears that after the horses were unloaded and. put in a barn one horse, called “Doc,” was noticed to be unwell. Dr. Ross, who examined the horse, testified that he was called in to look at this horse about 11:15 that morning; that he found him in a condition of colic; that colic often results from excitement and immediate feeding, and that the symptoms this horse showed might develop into pneumonia. Another horse, called “Bob,” alleged to have been foundered, was not seen by Dr. Ross. He testified, however, that if a horse had been sweating and then suddenly cooled off and shivered, it very probably would develop into a case of founder almost immediately.</p> <p>The jury found in substance that the death of the horse “Doc” was caused by exposure after the arrival of the car in Antigo and before unloading, and that the stiffened condition of the horse “Bob” was caused by like exposure; that the employees of the plaintiff did request the switch foreman, fifteen minutes after arrival, to spot the car; -that the car was not spotted within a reasonable time; that this failure was the proximate cause of the death of the horse “Doc” and the foundered condition of the horse “Bob;” that plaintiff’s servants were not guilty of any want of ordinary care that proximately contributed to the death and foundered condition of these horses; that there was no stock contract entered into; and assessed the value of the dead horse and the damage.by founder to the other. The court awarded judgment for the recovery of these sums in plaintiff’s favor. Erom such judgment this appeal is taken.</p>

<p> Limitation of actions: Notice of personal injury: Sufficiency: Release of damages: Waiver of notice: Estoppel. </p> <p>1. An instrument executed by a minor, in tbe nature of a release of damages for a personal injury, wbicb not only failed to show that claim for damages would be made but imported on its face that no claim would be made, cannot be deemed such a notice of the injury as is provided for in sub. 5, sec. 4222, Stats..</p> <p>2. Payment of money by an employer to an injured employee, whereupon the latter executed a release of all claims for damages on account of the injury, did not operate as a waiver of notice of the injury or estop the employer from asserting that no notice had been served, in a subsequent action by the employee to recover damages for such injury.</p>

N. Ris.toed, Circuit Judge. This action was brought to recover damages on account of alleged defects in a highway, which it was claimed caused the death of one Fred Carlson. His widow sues as administra-trix. Two causes of action are set out in the complaint;.the first to recover damages for pain, suffering, and medical expense incurred by the husband, and the second to recoyer damages under sec. 4255, Stats.

N. Risjoed, Circuit Judge. Quo warranto to try the title to the office of chairman of the board of supervisors of the town of Mercer, Iron county. At the election April 7, 1914, the relator received forty-eight votes, the defendant fifty-eight' votes, and one Bovee eight votes for the office.

N. EisjoRD, Circuit Judge. Action on a policy of indemnity accident insurance. Plaintiff, a manufacturing company, purchased of defendant a policy of insurance against loss by accidents which might happen to its servants in the course of their employment. Thereby defendant, in case of such an accident, agreed: 1. Upon notice to investigate or settle the claim for damages in its discretion. 2. In the insured’s name to defend against such claims if deemed best. 3.

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Ray SteveNs, Circuit Judge.</p> <p>This is an action by tbe plaintiff on an appeal from tbe finding of the Industrial Commission of tbe state of Wisconsin, which Commission awarded the defendant Barloara Hart-mann compensation to be paid by the plaintiff for the death of her husband, George Hartmann, which occurred while he was in plaintiff’s employ.</p> <p>On May 29, 1913, George Hartmann was in the employ of the plaintiff. He met his death by drowning in the Menomi-' nee river. ITe was a man fifty-six years of age and had worked for the plaintiff company a number of years. The plaintiff’s premises for conducting its fuel business were located on the Menominee river. On the morning of May 29 th Hartmann left home to go to work, and finding it was raining he returned and got an umbrella. About 10 o’clock of the forenoon of that day the employees took a short time off for lunch, as was the usual custom. There were two or three toilets upon the premises and one of them was situated a few feet from the river front near the generator room. In order to reach this toilet men walk along a narrow passageway about seven feet wide between the buildings to the river and thence along the river a distance of about 220 feet. This toilet room was used by the employees of the company. During the lunch period on the 29th of May one of the employees, hearing a splash, looked out of the window and saw Hart-mann in the water. He appeared to be making no struggle. Assistance was rendered him as soon as possible, but nothing could be done to save him. It was about three quarters of an hour from the time the splash was heard until the body was recovered. The plaintiff introduced evidence tending to show that Hartmann was demented, — that he had hallucinations or delusions. Olearly he had aberrations of some kind, but the testimony shows that he was perfectly sane about his work.</p> <p>The Industrial Commission awarded compensation to the defendant Barbara Hartmann amounting to $2,259.11, payable in weekly instalments of $7.23, considering interest at three per cent, per annum.</p> <p>Upon appeal the circuit court set aside and vacated this ■order of the Industrial Commission and awarded costs against the defendant Barbara Hartmann. The circuit court held that it is incumbent on a claimant for compensation on account of the death of an employee, under the Workmen’s Compensation Act, to show that death was caused by accident and that it resulted while the employee was in service growing out ■of or incidental to his employment. The court also held that the evidence “is as equally consistent with death by suicide .as by accident. . . . The Commission seems to base its findings upon the presumption against suicide,” and then determined the case against the claimant upon the following .ground: “The court concludes that there is no evidence to support the finding that death was proximately caused by accident, and that therefore the award of the Commission must be vacated and set aside.” Judgment awarded accordingly. This is an appeal from such judgment.</p> <p>They argued, among other things, that the presumption is that the -drowning was accidental. Krogh v. Modern Brotherhood, 153 Wis. 397, 401, 141 1ST. W. 276; Sorenson v. Menasha B. ■& P. Co. 56 Wis. 338, 342, 14 N. W. 446; Johns v. Northwestern ilí. B. Asso. 90 Wis. 332, 335, 63 N. W. 276; Bagel v. U. S. C. Co. 158 Wis. 278, 148 N. W. 878; Butero v. Travelers’ Acc. Ins. Co. 96 Wis. 536, 540, 71 N. W. 811; Henry Steers, Inc. v. Dunnewald, 85 N. J. Law, 449, 89 Atl. 1007; Lee v. Stag Line, 56 Sol. Jour. 720, 5 Butterworth’s Workm. O. O. 660; Mackinnon v. Miller, 46 Scot. Law Rep. 299, 2 Buttenvorth’s Workm. O. C. 64; Southall v. Cheshire Co. N. Co. 5 Butterworth’s Workm. 0. 0. 251; Bichardson v. Ship Avonmore, 5 Butterworth’s Workm. O. C. 34; Steamship Swansea Yale v. Bice, 27 T. L. Rep. 440, 4 Butter-worth’s Workm. 0. 0. 298; Ayr S. S. Co. v. Lendrum, 50 ■Scot. Law Rep. 173, 6 Butterworth’s Workm. 0. 0. 326, 338; Furnivall v. Johnsons I. &■ 8. Go. 5 Buttenvorth’s Workm. O. 0. 43; 1 May, Ins. (4tb ed.) § 325. No different presumption should be indulged in where the proceeding is under the Workmen’s Compensation Act than when it is an action upon an insurance policy. Sadowski v. Thomas F. Go. 157 Wis. 443, 447, 146 N. W. 770; Young v. Duncan, 218 Mass. 346, 106 N. E. 1. In an action upon an accident insurance policy this court has said that the presumption that the death was caused by accident properly applies where there is no evidence to show the circumstances and manner in which the injuries were inflicted. Butero v. Travelers’ Ace. Ins. Go. 96 Wis. 536, 540, 71 N. W. 811. See, also, Boyd, Workm. Comp. § 447 and cases cited; Muzik v. Eñe B. Go. 85 N. J. Law, 129, 89 Atl. 248; Pom freí v. L. & Y. B. Go. 19 T. L. Nep. 649, 5 Workm. C. C. 22. If Hartmann’s falling into-the water was due to fits, vertigo, or other temporary physical trouble, it still would be accidental. 1 Bradbury, Workm. Comp. (2d ed.) 360 el seq. and cases cited; Manufacturers’ A. I. Go. v. D'organ, 58 Ned. 945, 954, 22 L. E. A. 620, 625; Winspear v. Accident Ins. Go. 6 Q. B. D. 42. And whether- or not his death was accidental was a question of fact. Boyd,. Workm. Comp. § 573; McGloskey v. Kirk (Pa.) 90 Atl. 73;. 1 May, Ins. (4th ed.) § 325, cited with approval in Johns v.. Northwestern M. B. Asso. 90 Wis. 332, 335, 63 N. W. 276. Under the circumstances of this case Hartmann was performing services incidental to and growing out of his employment. Zabriskie v. Erie B. Go. 85 N. J. Law, 157, 88 Atl. 824; Elliott v. Bex, 116 L. T. Lour. 314, 6 Workm. C. C. 27; Lawless v. Wigan G. & I. Go. 124 L. T. Jour. 532, 1 But-terworth’s Workm. C. C. 153; Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Clem v. Chalmers M. Go. 178 Mich. 340, 1.44 N. W. 848, 850; Bayner v. Sligh F. Co. (Mich.) 146 N. W. 665; Andrejwsici v. Wolverine G. Co. (Mich.)-148 N. W. 684; Sadowski v. Thomas F. Go. .157 Wis. 443, 449, 146 N. W. 770; Milwaukee v. Miller, 154 Wis. 652,. 144 N. W. 188; Terleclci v. Strauss, 85 U. J. Law, 454, 89 Atl. 1023; Bloveli v. Sawyer, [1904] 1 K. B. 271, 6 Workm. O. C. 16; Earnshaw v. L. & Y. R. Go. 115 L. T. Jour. 89, 5 Butterworth’s Workm. C. C. 28 ; Morris v. Lambeth B. Council, 22 T. L. Rep. 22, 8 Workm. O. O. 1; Rowland v. Wright-, 24 T. L. Rep. 852, 1 Butterworth’s Workm. 0. 0. 192; Bovd, Workm. Comp. § 481; 1 Bradbury, Workm. Comp. •(2d ed.) 444-448, 450, 451.</p> <p>cited Peterson v. Time Ind. Go. 152 Wis. 562, 140 N. W. 286; Schneider v. Provident L. Ins. Go. 24 Wis. 28, 29, 31; Black, Law Diet. “Accident;” Bryant v. Fissell, 84 N. J. Law, 72, 86 Atl. 458; Boody v. jK. & 0. M. Go. (N. H.) 90 Atl. 859; DeFazio’s Estate v. •Goldschmidt D. Go. (N. J.) 88 Atl. 705; Losh v. Evans & Go. 19 L. T. Rep. 142, 5 Workm. O. C. 17; Astley v. B. Evans & Go. [1911] 1 K. B. 1036, 4 Butterworth’s Workm, •0. 0. 209; Grant v. G. & S. IF. B. Go. 45 Scot. Law Rep. 128, 1 Butterworth’s Workm. C. C. 17; Fennah v. M. &■ G. ,W. B’y, 45 Irish L. T. 192, 4 Butterworth’s Workm. C. O. 440; Mitchell v. Glamorgan 0. Co. 23 T. L. Rep. 588, 9 Workm. C. C. 16; Lee v. Stag Line, 56 Sol. Jour. 720, 5 But-terworth’s Workm. C. C. 660; Devan v. Commercial T. M. A. Asso. 157 N. Y. 690, 51 N. E. 1090; Kniclcerhoclcer Gas. Ins. Go. v. Jordan, 7 Weekly Bul. 71, 10 Am. Law Rep. 695 ; Peek v. Provident F. Soc. 147 Ind. 543, 44 1ST. E. 661, 46 N. E. 990; U. S. M. A. Asso. v. Ilubbell, 56 Ohio St. 516, 47 N. E. 544, 40 L. R. A. 453; Geoghegan v. Atlas S. S. Go. 146 N. Y. 369, 40 N. E. 507. He also cited, to the point that Hartmann was performing services growing out of and incidental to his employment, Milwaukee v. Althojf, 156 Wis. 68, 145 N. W. 238; Neice v. Farmers’ G. G. & S. Go. 90 Neb. 470, 133 N. W. 878; Bryant v. Fissell, 84 N. J. Law,' 72, 86 Atl. 458; Moore v. Manchester Liners, [1910] App. Cas. 498, 500, 507.</p> <p>They contended, inter alia, that it is essential under the statute that the applicant for compensation prove that the death of Hartmann was proximaiely caused by accident. If “proximately” is construed in its ordinary legal meaning, it is necessary that the applicant prove that the death was caused by an accident due to negligence on the part of the employer and that it was the natural and probable result of such negligence. There is no-evidence in the case to support a finding that Hartmann was accidentally drowned, or that when the occurrence happened he was engaged in performing service growing out of and incidental to his employment. They cited, among other cases, Ilansen v. Milwaukee G. & G-. Go. 155 Wi’s. 235, 144 1ST. W. 289; Oraslce v. Wigan, 101 L. T. Rep. 6, 25 T. L. Rep. 632, 2 Butterworth’s Workm. C. C. 35; Amys v. Barton,. 105 L. T. Rep. 619, 28 T. L. Rep. 29, 5 Butterworth’s Workm. O. O. 117; Rodger v. Paisley B. Board, 49 Scot. Law Rep. 413, 5 Butterworth’s Workm. O. C. 547; Brice v. Lloyd, 101 L. T. Rep. 482, 25 T. L. Rep. 759, 2 Butter-worth’s Workm. O. C. 26; Smith v. L. & Y. R. Go. 79 L. T. Rep. 633, 15 T. L. Rep. 64, 1 Workm. C. C. 1; Henry Steers, Inc. v. Dunnewald, 85 N. J. Law, 449, 89 Atl. 1007.</p>

<p> Workmen’s compensation: What injuries compensatedStatute construed: Lightning stroke: Ordinary hazard: Findings of fact, when conclusive. </p> <p>1. Injuries to employees for which compensation is to he paid under the Workmen’s Compensation Act (secs. 2394 — 1 to 2894 — 31, Stats. 1913) are such as are incidental to and grow out of the employment. They do not include an injury caused hy lightning where the exposure to the hazard from lightning stroke was not peculiar to the industry or rendered exceptionally great hy the employment.</p> <p>2. A finding hy the industrial commission in this case that an employee killed hy lightning while working on a.dam on a river was not exposed to a hazard from lightning peculiar to the industry or differing substantially from the hazard from lightning in any outdoor work, is supported hy the evidence.</p> <p>3. Findings of fact hy the industrial commission are not to he disturbed where there is any substantial basis for them in the evidence.</p>

<p> Constitutional law: Freedom of speech: Criminal slander: Evidence: Instructions to jury: Harmless errors. </p> <p>1. Sub. 2, sec. 4569, Stats., making it a misdemeanor for one person to slander another, is not an abridgment of freedom of speech as guaranteed by sec. 3, art. I, Const.</p> <p>2. In a prosecution under sub. 2, sec. 4569, Stats., it is not necessary to prove that the reputation of the slandered person was in fact injured or impaired, it being sufficient that the slanderous words “expose him to hatred, contempt, or ridicule.”</p> <p>3. It is sufficient for a conviction in such a case that a substantial portion of the words charged in the information be proved to have been spoken substantially as charged, although there may be slight differences in the form of expression.</p> <p>4. The mere fact that an instruction was somewhat confused in its language is immaterial where it must have been understood by the jury in its proper sense.</p>

<p> Constitutional law: School fund: Proceeds of fines: Fish and game laws. </p> <p>That part of ch. 525, Laws of 1909 (sec. 4567m, Stats.), which provides that one third of the fines collected for violations of the fish and game laws shall he paid to the county treasurer and set apart as a fund for the protection of fish and game, is void because in conflict with sec. 2, art. X, Const., which provides that “the clear proceeds of all fines collected in the several counties for any breach of the penal laws” shall go to the school fund.</p>