Volume 160 — Wisconsin Reports

<p> Master awl servant: Death: Assessment of damages: Matters to be considered: Evidence: Mortality tables: Excessive damages. </p> <p>1. In assessing the damages sustained by a widow by reason of tbe death of her husband, the recovery being limited by law'to the pecuniary benefits which she lost thereby, the following matters should be considered: (1) the average earning power of the deceased at the time of his death; (2) his expectancy of life; (3) his probable average earning power during such expectancy; (4) the proportion of his earnings which with reasonable certainty would have reached the wife; (5) the present worth thereof; (6) the amount it would take to purchase an income during the expectancy of his life equal to the amount the wife would probably have received out of his earnings.</p> <p>2. Mortality tables are not conclusive as to the expectancy of life, but they are persuasive evidence of it, and if unopposed by any other evidence should be controlling.</p> <p>3. An award of $5,500 for death of a workingman sixty-two years of age whose average earning capacity was about $727 per year, and whose probable earning capacity during his expectancy of life would not have exceeded $500 per year, of which probably not over $300 per year would have reached his wife, is held excessive, and plaintiff is given the option of taking a judgment for $4,000 or submitting to a new trial. Siebecker and Kerwin, JJ., dissent.</p>

<p>ERROR, to review a judgment of tbe municipal court of Milwaukee county: A. 0. Baceus, Judge.</p> <p>June 3, 1912, an information was filed against tbe plaintiff in error, hereinafter called tbe defendant, charging him with having on tbe 12th day of February, 1912, murdered bis wife, Anna Runge. He was convicted of tbe crime of murder in tbe first degree and on January 31, 1913, was sentenced to imprisonment in tbe state prison at Waupun for life. To test the correctness of such judgment the case is brought here by writ of error.</p>

<p> Criminal law and practice: Trial: Dilatory motions: Threats of bodily harm: Evidence. </p> <p>1. The making of dilatory motions upon a criminal trial is disapproved.</p> <p>2. The evidence in this case is held to sustain a conviction of threatening to do great bodily harm to the complaining witness.</p>

MaNBAmus proceedings to compel tbe secretary of state to audit a claim in favor of tbe Gr. Held: to the amount of some $2,250,000, was put into the general fund and used for general state purposes, leaving the state indebtedness as before, which has ever since existed. 4.

<p>ERROR, to review a judgment of tbe municipal court of Milwaukee county: A. C. Baceius, Judge.</p>

Tbis is an appeal from an order refusing to vacate a judgment on service obtained by publication.

<p>Appeal from a judgment of tbe circuit court for Juneau county: E. C. Higbee, Judge.</p>

<p> Instructions ta jury: Prejudicial error: Livery-stable Keepers: 'Negligence of driver: Defect in highway: Letting unsuitable horse: Knowledge. </p> <p>1. Although certain language which was sandwiched into that part of the charge which specifically related to one question in the special verdict was probably intended t'o apply to another question, it must in this case be deemed to have been understood by the jury to relate to the question under which it was given.</p> <p>2. In an action for injuries alleged to have been caused by negligence of the driver of the vehicle in which plaintiff was riding, an instruction to the effect that concurrence of a defect in the highway and negligent driving would excuse the latter, was erroneous; and the error was prejudicial where, although there was sufficient evidence to warrant a finding that the driver was negligent, the jury found he was not.</p> <p>3. In an action for injuries alleged to have been caused by negligence of defendant in letting a horse which was unsuitable for the purpose for which it was hired, the evidence is held not so clear as to warrant this court in saying as matter of law, contrary to a finding by the jury, that defendant was chargeable with knowledge of such unsuitahleness.</p>

<p>Appeal from a judgment and an order of the circuit court for Marquette county: A. H. Reid, Judge.</p> <p>This action was brought to quiet title and determine certain rights between plaintiff and defendants. The action was commenced in January, 1911. Judgment was entered December 8, 1911. The case was appealed to-this court. Qhilds v. DaMlce, 151 Wis. 82, 138 N. W. 277.</p> <p>On the first hearing very full findings were made determining the rights of the parties, and this court on appeal found that the court below substantially and correctly settled the rights of the parties by judgment, except that it failed to award damages for the expense of making proper connections with the hydraulic canal in order to reimburse the plaintiff for the extra expense occasioned by the change in the hydraulic canal and the obstructions placed between plaintiff’s lots and the canal, or to provide in the judgment that the defendants make the proper changes and connections at their own expense and maintain the same according to the terms of the deed through which plaintiff claims title,' and the case was remanded with directions to modify the judgment by requiring the defendants to make proper changes in the canal and water power and land between lots 6 and 7 and the canal so as to effectively deliver 150 inches of water, drawn from the canal or pond under a ten-foot head, on the north line of lots G and 7 according to the terms of the deed through which plaintiff derives title, and if necessary to take further evidence to enable the court to make the proper modification, and further ordering that the paragraph of the judgment providing for leave to bring and maintain another action to recover damages be omitted from the judgment. Childs v. Dahllce, supra. After the record was remanded in accordance with the mandate referred to further evidence was taken. The court made findings of fact dated July II, 1913, and the parties afterwards appeared before the court and viewed the premises, and, further evidence being taken, the court amended the findings of July 17, 1913, and made further findings as follows:</p> <p>“1. The hydro-electric power plant of the defendants which was heretofore adjudged to be abated and removed from Mill street has been dismantled to the extent of removing all of the machinery therefrom, and the foundations and superstructure of the building still stand awaiting final judgment herein, at which time the defendants claim they will proceed in accordance with said judgment to remove said buildings and foundations so far as necessary.</p> <p>“2. Since the former trial of this action, to wit, in the year 1912, defendants have constructed a new south wall of the canal of concrete, in substantial and permanent form, commencing at a point near the north side of said former plant adjudged to be removed and at the east side of the intake flume running to said former plant, and extending from that point due east approximately parallel with the north line of Mill street and 7.7 feet north of the north line of Mill street to a point east of the old waste gates in said canal as they existed prior to the flood in 1905, and at the easterly end of said wall have constructed a hydro-electric power plant wholly on the north side of Mill street. Exhibits 1005, 1006, and 1007 are copies of the architect’s plans, according to which said new power plant and canal extension was constructed. Said new power plant occupies in part the channel in which waste water was discharged from the canal prior to the flood of 1905. The water from the power plant adjudged to be removed has been discharged, ever since its use began, into a channel next adjoining on the south the new wall and plant erected in 1912. Between the westerly end of the new south wall and the easterly end of the old south concrete wall of the canal as it existed at the time of the former trial, there is a space of approximately fifteen feet in width through which water bas been and is now admitted to the wheel pit and bulkhead of the former plant which has been adjudged to be removed. Said new wall, together with structures formerly existing, extends the canal further east than it ever existed prior to the former trial, and is as near to the north line of Mill street as was the south line of the canal as it existed in September, 1866, and thereafter until the flood of 1905. If said two above mentioned south walls of the canal were united by a wall closing the fifteen-foot opening leading to the plant ordered to be removed, said canal would be complete, and the removal of the superstructure and foundations of the former plant would remove all obstructions except the river channel and water therein, in the way of the plaintiff reaching said canal and drawing for use, as his predecessors were accustomed to do, the 150 inches of water to which he is entitled. By a uniform and continuous course of construction of the grant to plaintiff’s predecessor, Thos. Wells, on September 17, 1866, the duty to construct and maintain the conduit for said 150 inches of water has always rested on said Wells and his assigns.</p> <p>“3. Defendants have requested to be permitted to construct a waste way along the south side of the new south wall and new power plant recently constructed to the easterly end of said new power plant. If said waste way, including its south wall, does not occupy more than 7.7 feet in width, the s'ame will not encroach upon Mill street and will not be unlawful.</p> <p>“é. The old waste gates as they existed before the flood of 1905 were located on the north line of Mill street and approximately at the southwest corner of the new power plant building erected in 1912, and approximately fifty-eight feet east of the west line of lot 6 projected north. The water from the pond was conducted to said gates by a conduit about twelve feet long and twelve feet wide. As Mill street then existed, the surface thereof on the south side of the canal as far east as the west end of said last mentioned conduit was higher than the'Trunk,’ so called, or conduit which conducted water from the canal to the wheel pit or the woolen mill. After removal of the former power plant adjudged to be removed, the space between the canal and the north line of lot 6’ will be several feet lower oh an average than the elevation of said trunk or conduit to the woolen mill, and is now occupied in part by' water channel and water. A minor portion of the water discharged from the wheels installed in 1912 and shown on Exhibit 1006 is discharged to the south into said channel through openings marked ‘a/ ‘b,5 ‘e,’ and £d’ on Exhibit 1005. The major portion of the water is discharged to the east through the opening marked V on Exhibit 1005. The most westerly of said openings on the south side is approximately forty feet east of the west line of lot 6 projected north. If a retaining wall be built starting from the canal wall immediately west of said westerly opening and running thence south to the north line of Mill street, thence east along the north line of the street twenty feet, thence southeasterly to a point on the north line of lot 6, ten feet or more east of the west side of the old woolen mill (or in a direct line between said points, as the defendants may elect), and if thereupon all the space between lot 6 and the canal which lies west of such retaining wall be filled and kept filled with earth or its equivalent to a height of one foot above the bottom of the original trunk or water conduit leading to the old woolen mill, and if an opening in the canal wall as hereinafter provided be maintained, the plaintiff will be able to obtain and use the water from the canal to, which he is entitled as conveniently and economically as the conditions before the flood of 1905 permitted.”</p> <p>The court concluded:</p> <p>“1. It is the duty of the defendants under the covenants contained in the deed by Osman and Richardson and their wives to Thomas Wells, dated September 17, 1866, to completely remove the foundations and superstructure of the former power plant adjudged to be removed from Mill street and to fill in and keep continuously filled the intervening space between the south wall of the canal and the north line of lot 6, extending as far east as the proposed detaining wall hereinbe-fore described and sufficiently to the west to meet the high land, with earth or its equivalent to a height not less than one foot above the bottom of the original conduit or trunk running to the woolen mill as it existed when in use, and to make and maintain in the south wall of the canal an opening ready for use of the plaintiff and located substantially at the same height as formerly and approximately three feet east of the west line of lot 6 projected north, and of sufficient size to freely supply to plaintiff the 150 inches of water under a ten-foot head, to which he is entitled.</p> <p>“2. Plaintiff ought to recover his taxable costs and disbursements in this proceeding, but not exceeding in all $25, besides disbursements in addition to costs included in first judgment.</p> <p>“Let judgment be entered accordingly to the foregoing and the mandate of the supreme court.</p> <p>“Dated September 22, 1913.”</p> <p>On October 17, 1913, the findings made September 22, 1913, were amended by striking out from finding number 2 the following words as they appear therein, to wit: “and extending from that point due east approximately parallel with the north line of Mill street and 7.7 feet north of the north line of Mill street to a point east of the old waste gates,” and by inserting in lieu thereof the following: “and extending from that point easterly and nearly parallel with the north line of Mill street, and being 7.7 feet north of the north line of Mill street at the westerly end of said new south wall to a point east of the old waste gates;” and by striking out from the third finding the following: “occupy more than 7.7 feet in width, the same will,” and also the word “and” after “street,” and by inserting in lieu of “and” the word “it.”</p> <p>Afterwards and- on November 6, 1913, the court rendered the following judgment:</p> <p>“It is considered, ordered, and adjudged, that said judg'ment entered herein December 8, 1911, be and the same hereby is modified in the following particulars, to wit:</p> <p>“1. By striking therefrom the whole of paragraph ‘6’ thereof and inserting in lieu of the paragraph so stricken the following:</p> <p>“6. That it is the duty of the defendants, and they are hereby ordered and required, to completely remove from said Mill street the foundations and superstructure of the power house described in the complaint herein and to fill in and to keep continuously filled the intervening space between the south wall of the canal and the north line of said mill lot 6 extending easterly to a line described as commencing at a point in the south wall of said canal as it now exists, immediately west of a point therein located forty (40) feet east of the west line of said mill lot six (6) projected north, and running thence south to tbe north line of Mill street; thence east twenty (20) feet along the north line of Mill street; and thence southeasterly to a point in the north line of said mill lot six (6), ten (10) feet or more east of the west side of the ‘old Wells woolen mill’ (or in a direct line between said points, as the defendants may elect); that is to say, to fill in and keep continuously filled the intervening space between the south wall of the canal, as it now exists, and the north line of said mill lot six (6), extending as far east as the retaining wall described in the fourth finding of facts and in the first conclusion of law herein (of date September 22, 1913), and also extending from said above described line and retaining wall sufficiently to the west to meet the high land, with earth or its equivalent to a height of not less than one (1) foot above the bottom of the original conduit or trunk which ran and extended from said canal to the former ‘Wells woolen mill,’ as such conduit or trunk existed when in use, and to make and maintain in the south wall of said canal an opening ready for the use of the plaintiff and his assigns, located substantially at the same height as such an opening in the south bank of said canal formerly existed when such conduit or trunk was in use. Said opening to be located approximately three (3) feet east of the west line of said mill lot six (6) projected north, and said opening to be of sufficient size to freely supply to plaintiff the one hundred fifty (150) inches of water under a ten-foot head to which he is entitled.</p> <p>“(a) That in the event of said defendants’ neglect or refusal to fully comply with and execute the provisions of this judgment that said warrant do issue to the sheriff of Marquette county, Wisconsin, out of this court, under the seal thereof,.commanding said sheriff to abate and remove the said nuisance as hereinbefore provided, and also to completely remove from said Mill street the foundation and superstructure of the power house described in the complaint herein, and to fill in said intervening space as herein adjudged at the expense of said defendants, in the following manner, to wit: by wholly razing and removing said building, together with the water wheels, dynamos, shafting, machinery and appliances, foundations, superstructure and other structures connected with or appurtenant thereto from within the limits of said Mill street, and by filling in said intervening space between the south wall of said canal and the north line of said mill lot six (6), in manner and form and to tbe extent herein adjudged, and that in case such warrant be issued and executed, the said sheriff collect his own fees and charges and all of the expenses of such abatement and removal of and from the said defendants in the manner provided by law, or</p> <p>“ (b) That upon the neglect or refusal of the defendants to abate and remove said nuisance as aforesaid or to otherwise comply with this judgment, upon filing an affidavit showing such neglect or refusal, the plaintiff may apply to the court for an order for the enforcement of the same in such manner as to the court may seem proper.</p> <p>“2. That in addition to the costs heretofore adjudged to him by said judgment, the plaintiff, W. 0. Childs, do have and recover of and from the defendants-, Charles T. Dahllce, Edward J. Dahllce, Gustav E. Dahllce, the Neshhoro Milling Company, and the Neshhoro Light <& Power Company, his costs and disbursements, taxed and allowed at the sum of one hundred seventy-three dollars and ninety-three cents.</p> <p>“Dated November 6, 1913.”</p> <p>On hearing the court below denied a motion to open the default and allow exceptions to be filed and bill of exceptions settled.</p> <p>The appeal is from the judgment and order denying application to open default, file exceptions, and settle bill of exceptions.</p>

<p>Appeal from a judgment of tbe circuit court for Columbia county: Chester A. Eowler, Circuit Judge.</p> <p>A certiorari action was commenced in the circuit court for Columbia county to review proceedings had to establish a highway in the town of Leeds in Columbia county and Windsor in Dane county. The town boards, in due proceedings as was supposed, refused to lay out the highway. Thereupon application was made under sec. 1276, Stats.; for appointment of commissioners to review the adverse determination. Such commissioners were appointed and, in due course, reversed the action of the town boards. Pursuant thereto such boards laid out the highway and made the required award of damages.</p> <p>With, the application for appointment of commissioners a bond was presented for the purpose of complying with the condition precedent prescribed by sec. 1277, Stats.</p> <p>Such bond is required to be “conditioned to pay all costs arising from such appeal, provided such order or determination of the supervisors . . . shall not be reversed.” The bond presented was conditioned to “pay all costs arising from such appeal from such order providing such determination of the said supervisors so appealed from shall he reversed The bond was duly approved by the county judge, overlooking the inadvertent omission of the word “not” from the condition of the bond. The application for the writ assigned the defect in the bond and also these as jurisdictionally fatal:</p> <p>1. The town board did not, pursuant to the notice, meet at 10 o’clock o"f the day named in the house of Ben Johnson, but met about 10:30 on said date in the yard near the house, adjourned to the barn and, by themselves, deliberated and then returned and against protest adjourned to meet at the house of L. J. Lee July 21st thereafter.</p> <p>(The language of the notice was “will meet at the Rome’ of Ben Johnson.”)</p> <p>2.- No proper proof of service was filed in the office of the town clerk of the town of Leeds prior to the meeting, though proofs were made at such time.</p> <p>3. Notice was not given to Thomas Sanderson, — the relator’s intestate, who was an interested party, — directly or indirectly, of the time or place of the adjournment, nor of the appeal.</p> <p>4 and 5. No record appears in the town clerk’s office of the town of Leeds of the hearing before the county judge or the appointment of commissioners.</p> <p>6. No notice was given to said Thomas Sanderson of the final meeting of the commissioners.</p> <p>7. Notice was not given to any party of such final meeting.</p> <p>8. Because of want of notice, said Sanderson did not have a fair hearing.</p> <p>9. The appeal was not made in proper time; the appeal papers have not been properly completed, nor any duplicate of the appeal record filed with the town clerk of the town of Leeds.</p> <p>SUPREME COURT OP WISCONSIN. [Mae. Marlatt v. Chipman, 160 Wis. 193.</p> <p>(The refusal to lay out the road was July 20, 1912. The applicatiou to appoint commissioners was served within thirty days thereafter.)</p> <p>10. Notices of adjournments were unseasonably filed with the town clerk of the town of Leeds.</p> <p>11. No offer of damages was made to Thomas Sanderson prior to the finding by the boards.</p> <p>In due course, the proceedings to lay out the highway were declared void for failure to give the statutory bond on the application for commissioners.</p>

This is an appeal from an order made pursuant to sec. 1752, Stats., ordering the appellant W. A. Kaiser, as secretary of the John H. Kaiser Lumber Company, to transfer upon the books of the company 100 shares of the preferred stock of the company from the South Muscatine Lumber Company to the Corn Exchange National Banlc.

<p> Appeal: Errors in admitting evidence: Trial by court: Adverse possession: Entry: Parol license. </p> <p>1. Error cannot, upon appeal, he predicated upon the admission of evidence in a case tried by the court without a jury.</p> <p>2. In an action to quiet title to land the evidence is held to sustain findings to the effect that defendant, who claimed title by adverse possession, entered and held under a parol license from plaintiff.</p>

B. QulnxaN, Circuit Judge. On or about September 9, 1913, one Ered Bruhn and his wife, Gertrude, were the owners and in possession of a certain farm in Oconto county which was heavily incumbered and which they desired to sell or trade for other property. They employed one Paul Muehrke to dispose of the farm and agreed to pay him a commission of $100.

B. BeldeN, Circuit Judge. Action for personal injury. On October 13, 1909, while plaintiff was in tbe employ of defendant as a molder, and while pouring molten iron into a chill or mold clamped about a tubing on a metal bed for the purpose of making an ornamental and useful enlargement thereon, a blowout occurred in the chill, whereby the molten metal was forcibly ejected •and thrown into plaintiff’s face, destroying his right eye and impairing the vision of the other.

C. Eschweilee, Circuit Judge. This is an appeal from a judgment for the defendants in an action of ejectment brought by the plaintiff to recover an irregular shaped lot on “Jones Island” in the city of Milwaukee. The plaintiff showed that it possessed record title and the defendants claimed to have acquired title by adverse possession.

Williams, Circuit Judge. Action to recover for a personal injury. The plaintiff was an experienced engineer. He was in the employ of defendant, attending a pair of automatic underfeed stokers. The motive power was steam. It was applied upon the same principle as in any ordinary steam engine.

C. Ludwig, Circuit Judge. This is an action to recover compensation for services rendered by the plaintiff for the defendant in an alleged sale of real, property belonging to the defendant. It appears that about February 1, 1911, the parties entered into an agreement whereby the plaintiff was to sell defendant’s four lots for $3,'500.

C. Ludwig, Circuit Judge. They contended, inter alia, that the boy was acting in the interest of defendant and in the line of his employment, and that defendant is responsible for his acts.- Southwiclc v. Estes, 7 Cush. 385; Topolewslci v. Planlcinton P. Go. 143 Wis. 52, 126 N. W. 554; Gobb v. Simon, 119 Wis. 597, 97 N. W. 276; S. G. 124 Wis. 467, 102 N. W. 891; Johnston v. G., St. P., M. & 0.

Williams, Circuit Judge. Plaintiff brought this action in the ciyil court of Milwaukee county to recover damages for injuries alleged to have been sustained as a result of a collision between an automobile in which he was riding and an electric car of the defendant company. Fifth street in the city of Milwaukee runs north and south, and Clybourn street, running east and west, crosses Fifth street at right angles.

Ray Stevens, Circuit Judge. Action to test the validity of an award under the Workmen’s Compensation Act.

Ray Steveus, Circuit Judge. Action to set aside an award of tbe Industrial Commission requiring tbe appellant company to pay to Pauline Dixon $3,000 on account of tbe death of ber busband, Thomas Dixon, caused by accident while in tbe employ of tbe appellant company. Tbe circuit court affirmed tbe award, and tbe plaintiff company appeals. Tbe facts are that Dixon, on March 23, 1912, was working for tbe plaintiff in its yards at Milwaukee as an engineer on a switch engine.

<p>Ereoe to review a judgment of tbe circuit court for Clark county: James O’Neill, Circuit Judge.</p> <p>Tbe judgment was rendered against plaintiff in error on bis plea of guilty of having committed a statutory offense under tbe law for tbe restraint and prevention of gambling.</p> <p>Plaintiff in error, Mr. Foster, was duly charged with having committed tbe offense mentioned, June 26, 1913. He duly waived any preliminary examination and was committed for trial before tbe circuit court. Thereafter tbe prosecuting attorney of Clark county, where tbe offense was alleged to have been committed, filed an appropriate information. Tbe accused was then upon bis own request arraigned before tbe circuit court for such county, tbe district attorney appearing for tbe state and competent counsel appearing for tbe defense. A plea of guilty was entered. Later tbe matter was brought up for entry of judgment at which time tbe accused was represented by other counsel. Some evidence was taken to enable tbe court to determine tbe proper judgment. No objection was made thereto. Sentence was then, in due form, entered, that tbe accused should be punished by confinement in tbe county j ail of Clark county for six months from and after June 28, 1913. On July 28th thereafter tbe accused was again before tbe court represented by counsel. He then filed an affidavit to tbe effect that be was induced to enter a plea of .guilty by a promise, which be supposed came from the district attorney, that be would be punished by fine only, and that he was innocent of tbe offense charged against him. On such affidavit application was made for an order modifying tbe judgment so as to permit tbe accused-'to go free upon payment of a fine, or setting tbe conviction aside and granting a new trial. Tbe district attorney filed a'-counter affidavit to tbe effect that be did not, directly or indirectly, make any promise to tbe accused for tbe purpose of inducing him to enter a plea of guilty, nor make any promise whatever, and that such plea was a wholly voluntary act.</p> <p>Tbe court denied tbe application.</p>

EbRoe to review a judgment of the circuit court for Ke-noslia county: E. B. Beldest, Circuit Judge. The plaintiff in error (hereinafter called the defendant) was convicted in the Kenosha county circuit court of buying, transporting, and having in his possession dynamite, with the intent that it should be used for the unlawful purposes denounced in sec. 4398a, Stats. 1913, or knowing that such dynamite was intended to be used by other persons for such unlawful purposes.

AVilxiams, Circuit Judge. This is an appeal from an order overruling a demurrer of tbe appellant herein to tbe return of tbe respondent. Tbe respondent is city chairman of tbe Social Democratic Party.

C. Eschweilee, Circuit Judge. Plaintiff is a corporation engaged in tbe merchant tailoring business in tbe city of Milwaukee. On January 31, 1909, and for some time prior thereto, tbe defendant Richards was in tbe employ of tbe plaintiff company as a cutter.

<p> .Damages:Inadequacy: Setting aside verdict: Discretion: Option: New trial or judgment for larger sum. </p> <p>1. An order of the trial court setting aside the award of damages as inadequate and granting a new trial will not he disturbed on appeal unless there was an abuse of discretion, even though there was some evidence to sustain such award.</p> <p>2. In an action to recover for serious, painful, and probably permanent injuries sustained by a man who was run into by an auto- ' mobile and who by reason thereof had incurred medical expenses aggregating about $340 and lost considerable time, there was no abuse of discretion in setting aside a verdict awarding only $1,000.</p> <p>3. Upon ^setting aside a verdict because the damages awarded to plaintiff are inadequate, the court may in its discretion give defendant an option to submit to a new trial or to allow plaintiff to have judgment for a sum fixed by the court as the maximum amount any jury would be warranted in assessing; but' such a course is not usually advisable, especially in cases where there is legitimately a wide range in the amount of damages that may properly be assessed.</p>

Williams, Circuit Judge. This is an appeal by the divorced wife from an order fixing alimony, which order was made twelve years after the original judgment of divorce. The parties were married April 9, 1886, and resided at Greenville, Ohio, where four children were born to them, viz.: Vaughan, July 7, 1887; William, November 19, 1892; Paul, September 3, 1891; and Mary, February 2, 1898, all of whom are still living and the two elder self-supporting.

J. TuejsteR, Circuit Judge.. Action to recover compensation for a personal injury. Plaintiff’s claim was that, while in the employ of defendant working on a scaffold as he was directed to do, he was precipitated to the ground below by reason of the insecure nature of the structure, and injured. Issue was joined on the allegations as to negligence of defendant and assumption of the risk and contributory negligence were claimed as defenses.

0. Ludwig, Circuit Judge. This is an action to recover damages for breach of a covenant against incumbrances contained in a deed from defendant to plaintiffs. On December 24, 1904, the defendant and his wife (who joined'to release her dower) conveyed by deed to the plaintiffs certain premises owned by them.

<p> Sales: By corporation or agentf Setoff. </p> <p>Findings of the trial court that certain goods were bought by defendant from the plaintiff corporation through its agent, and not from the agent himself, against whom defendant claimed an offset, are held to be sustained by the evidence.'</p>

Feitz, Circuit Judge. On or about July 25, 1912, the plaintiff sold the Milwaukee Motor Company machinery of the agreed value of $5,584.50, under a contract by the terms of which possession was to he delivered to the Motor Company, hut the title was to remain in the Machinery Company until the purchase price was paid as agreed.

J. TueNee, Circuit Judge. Action begun in tbe civil court of Milwaukee county to recover $500 due under a contract granting to defendant tbe exclusive right to tbe use of a patent. A judgment of tbe civil court in favor of plaintiff was affirmed upon appeal to tbe circuit court. Erom sucb judgment of affirmance tbe defendant appealed.

Williams, Circuit Judge. Tbis is an action to recover money paid by mistake. It was tried by tbe court. Tbe facts were as follows: Tbe parties for many years owned and lived upon neighboring farms in tbe town of Granville, Milwaukee county, tbe defendants’ farm containing somewhat more than 100 acres. In November, 1909, tbe defendants sold to a railway company a strip of land through their farm which was surveyed and staked out by the engineer of the company.

J. Turner, Circuit Judge. Action to recover for a personal injury. Plaintiff was injured June 5, 1913, while performing his duty as an employee of defendant. He had more than five co-employees. Negligence in respect to safety of his employ-meat and place of employment was relied on, but that came down, substantially, on the trial to whether, under the circumstances, a sufficient number of men were employed to do the particular work.

J. TubNeb, Circuit Judge. This is an action to recover damages for an injury which tbe plaintiff alleges be sustained while in tbe employ of tbe defendant. Tbe plaintiff at the time of the accident was nineteén years' of age. He was employed by the defendant as a teamster and was required to deliver boxes at the various places of defendant’s customers in the city of Milwaukee.

J. TurNer, Circuit Judge. On September 2, 1911, plaintiff entered into a written lease with the defendant, who is a practicing dentist, for a certain room in the office building owned by the plaintiff in the city of Milwaukee.

Eritz, Circuit Judge. 'Upon tbe former appeal, 158 Wis. 69, 147 N. W. 3,. tbe mandate was amended so as to permit in express terms tbe trial court to pass upon a motion for a new trial on the ground of newly discovered evidence notwithstanding tbe affirmance of its judgment upon.the merits. Tbis is an appeal by the defendant from an order refusing to grant such new trial.

0. Esohweilee, Circuit Judge. ■ Action for personal injuries. The plaintiff in September, 1913, was an employee of the Andrae Electrical Company, and as such employee was sent to the shop of the defendant corporation on the morning of the 8th of said month to install some new telephones and telephone wires in the shop to take the place of certain apparatus of the same nature which had recently been removed.

Feitz, Circuit Judge. The plaintiff was trustee in bankruptcy of the Milwaukee Motor Company and, as such was successor to all the right which such company formerly had. to recover on the alleged cause of action. April 24, 1913, and prior to the bankruptcy proceedings, there was a meeting of stockholders of the Motor Company at which all were present. It was called for the purpose of providing additional capital for use in carrying on the company’s business.

<p>Appeal from a judgment of the circuit court for Milwaukee county: J. 0. Ludwig, Circuit Judge.</p> <p>The appeal is from a judgment dismissing the plaintiff’s complaint.</p>

<p>Appeal from a judgment of the circuit court for Milwaukee county: W. J. Tuenee, Circuit Judge.</p> <p>On October 15,1912, plaintiff was employed by the defendant in its starch, room on the sixth floor of its factory in the city of Milwaukee. He was so employed until the morning of April 7, 1913, at which time he was directed by his foreman to go to the fourth floor and report to the foreman there, which he did, and he was put to work at a table spreading caramels, which consisted of separating the squares of caramel when placed on the table after having passed through a cutting machine. He remained at -this work until about 3 o’clock that afternoon, when he went to .a machine known as a sizer, located about fifteen or twenty feet from where he had been working. This machine consists of two rollers six inches in diameter and two feet long, one above the other, through which caramel candy is run in slabs to reduce it to a uniform thickness. The operator stands on the feed side of the machine, and after sprinkling each slab of candy with starch or .flour to prevent its sticking to the rollers it is shoved along the table of the machine until it is caught by the rollers and is drawn through and' out onto the smooth surface of the table on the opposite or take-away side. The space between the rolls can be regulated by the operator, according to the thickness of candy desired. The machine is power driven and its movement controlled by an ordinary belt-shifter at the end and side thereof. On the side of the machine where the slabs of candy are fed into the rollers there is an immovable metal guard which extends down over the face of the rollers to a point about two and one-half inches above the surface of the table and then turns at right angles and extends out over the surface of the feeding table to a point about nine inches from the contact point of the rollers. Plaintiff’s right hand was caught between the rollers of this machine and so crushed that all of his fingers and thumb had to be amputated. This action was brought to recover damages for the injury. The complaint alleged that the employment of plaintiff up to April 7, 1913, was in defendant’s starch room, where he was not required to work with any machinery; that on April 7th his employment was changed and he was directed to feed slabs of caramel candy into a revolving press machine; that it was the duty of the defendant to fully instruct him as to the operation of the machine and to warn him of the dangers incident thereto; that he received no such instructions or warning, and that he never had worked around machinery and knew nothing of its dangerous character; further, that plaintiff was employed by defendant in violation of sec. 1728, Stats. 1911, and also that the machine was not properly guarded.</p> <p>Among other things the answer of the defendant denied that plaintiff’s employment was changed on April 7th or at any other time and that he was directed' to work upon a revolving press machine or any other machine; that plaintiff’s injuries were the result of carelessness and negligence on his part, in that he was playing or tampering with the machine in question at the time he was injured, contrary to express orders and instructions of the defendant. The jury returned the following special verdict:</p> <p>“(1) Was the plaintiff directed by Eoreman Bennett to work upon the sizer ? A. Yes.</p> <p>“(2) Did Eoreman Bennett permit or suffer the plaintiff to work on the sizer ? A. Yes.</p> <p>“(3) Was the machine at which the plaintiff was injured dangerous to life and limb of a person under sixteen years of age? A. Yes.</p> <p>“(4) If you have answered either the first or second question in the affirmative, then answer: At the time the plaintiff was injured, was he engaged in any work that he was directed or permitted to pursue ? A. Yes.</p> <p>“(5) What sum will reasonably compensate the plaintiff for the injury he sustained? A. $6,000.”</p> <p>Erom a judgment entered in accordance with such verdict defendant appeals.</p>

<p> Drains: Preliminary report of commissioners. </p> <p>The findings in the preliminary report of drainage commissioners made pursuant to sec. 1379 — 16, Stats. 1911, are held to. he supported by the evidence.</p>

C. Ludwig, Circuit Judge. This is an action in equity to enforce specific performance of an alleged oral agreement to transfer to plaintiff an undivided one-third interest in 701 shares of corporate stock of the Schmitt Brothers Tobacco Works and to impress a trust in the plaintiff’s favor upon 501 shares thereof now in the hands of the defendants.

Feitz, Circuit Judge. Action to recover on contract the alleged cost of improving the crossing at the point where plaintiffs track passed over those of defendant so that the same would accommodate an additional track which the former desired to establish within its right of way. The contract was made May 26, 1906.

Ray Stevens, Circuit Judge. , Action to try title of the defendant to the office of trustee of the village of Muscoda. Defendant was, in form, duly elected in April, 1912. He, in form, duly qualified and entered upon performance of the duties of the office. He was not a citizen of the United States. He had taken out first citizenship papers.

Ray SteveNS, Circuit Judge. This action was brought to recover for personal injuries. There was a verdict and judgment for plaintiff, and defendants appealed. At the close of the evidence the defendants moved for a directed verdict, which was denied, and afterwards moved for a new trial, which was denied.

<p>Appeal from an ordejr of the circuit court for Dodge county: Geoege Geimm, Circuit Judge.</p>

<p> Automobiles: Unlawful speed: Injury to person: Gross negligence: Oontribiitory negligence, when a defense: Special verdict: Withdrawal of questions: Misleading jury: New trial. </p> <p>1. Operation, of a motor vehicle at a speed in excess of the legal limit is a misdemeanor under sec. 1636 — 49, Stats., and where injury results to another person is negligence per se, but is not necessarily to he treated as gross negligence or a wilful causing of the injury; and in an action for such injury, unless defendant’s conduct is found as a fact to have amounted to gross negligence, the defense of contributory negligence is available. Plateo v. Wiemann, 149 Wis. 235, and Pinoea v. Northern 0. Go. 152 Wis. 473, distinguished.</p> <p>2. The evidence as to the speed of an automobile which struck and injured a boy was conflicting, and questions were submitted in the special verdict as to whether defendant was operating the car at a speed exceeding the legal limit, but, the jury not being able to agree on those questions, they were withdrawn. The jury then found that the boy was guilty of contributory negligence. It appearing that the jury were probably misled by the withdrawal of said questions to believe that the evidence as to unlawful speed had no bearing upon the question of contributory negligence, the trial court properly granted a new trial on that ground.</p>

<p> Vendor and purchaser of land: Purchase-money lien: Evidence: Burden of proof. </p> <p>1. In an action to establish, and foreclose a purchase-money lien on land held by defendant under an apparently clear title, the . burden is upon the plaintiff to show that the land is subject to such lien.</p> <p>2. Findings of fact in such a case in favor of the defendant are held to be supported by the evidence.</p>

W. BueNell, Circuit Judge. Action to recover compensation for injuries caused by an assault and battery. It was begun in justice’s court. Upon the return day an affidavit of prejudice was filed on behalf of the defendant. Thereupon the cause was duly transferred to the next nearest justice. There was then an adjournment by consent without issue having been joined.

<p>Appeal from a judgment of tbe county court of Winnebago county: Feed Begliegee, Judge.</p> <p>. Tbis is an action to recover damages for tbe breach of a covenant in a lease.</p> <p>Tbe plaintiff, tbe owner and lessor of a farm situated in Winnebago county, leased it to tbe defendant under a written lease. Tbe tenancy commenced April 1, 1904, and was extended from time to time and terminated April 1, 1913. Tbe farm consists of about 180 acres, and it appears tbat when tbe tenancy terminated there were about forty acres having quack grass and Canada thistles thereon. Tbe covenants upon which tbe plaintiff relies are:</p> <p>“AH seeds to be sown to be clear from foul seeds. Second parties to destroy all noxious weeds on leased premises each year during lease, also to destroy same on highways, lanes, and alleys adjoining said premises. Second parties agree to plow all tbe land they found plowed at time of entering upon said premises. Second parties to repair all fences, first parties to furnish all materials for fences.” (Tbe above terms were written in pen and ink; tbe remainder was a printed blank form.)</p> <p>There was evidence tending to show tbat defendant bad employed tbe means customarily used in tbat vicinity to destroy noxious weeds. Evidence also tends to' show that there-was an increase in the amount of the weeds.</p> <p>The court charged the jury as follows:</p> <p>“. . . It was the duty of defendant to adopt all reasonable means and to do all things reasonably adapted to destroy such weeds and which were consistent with good husbandry. In determining what was reasonable for such purpose you have the right to consider the methods usually and customarily employed by farmers generally in that vicinity. ...”</p> <p>The jury brought in a general verdict for the defendant, and the court thereupon awarded judgment for the defendant dismissing the plaintiffs complaint and for costs. Erom' such judgment this appeal is taken.</p>

<p>Appeal from an order of the circuit court for Manitowoc county: Michael EjuwaN, Circuit Judge.</p> <p>The appellant claims to be health officer of the city of Manitowoc, and sues to restrain the defendant from interfering with the appellant’s alleged possession of the office of health officer and the discharge of the duties of health officer by appellant. The court below denied the application of appellant for a temporary injunction restraining the defendant and others from interfering with appellant’s alleged possession of the office of health officer and the discharge of the duties of such office. The motion for injunction was heard on the pleadings and affidavits. Erom an order denying the injunction this appeal was taken.</p>

Fowleb, Circuit Judge. Action to recover damages for a personal injury sustained 'by plaintiff coming in contact witb a broken live wire belonging to tbe defendant. During tbe nigbt of July 13 and 14, 1912, there was quite a heavy storm accompanied by lightning in tbe city of Fond du Lae, and in tbe morning of July 14th a wire belonging to tbe defendant was broken on Hickory street in such a manner that one end lay flat on tbe ground.

<p> Boundaries of land: Ancient fences. </p> <p>Ancient fences, built on what were supposed to be the boundary lines of the tract of land in dispute and maintained for at least thirty and probably fifty years, are held in this case to fix the correct boundaries, as against modern surveys conflicting therewith and with each other.</p>

<p>Appeal from a judgment of tbe circuit court for Crawford county: ,Geoege ClemeNtsoN, .Circuit Judge.</p> <p>Action to test tbe validity of an instrument purporting to be the last will of Betsey R. Gunderson, deceased. The trial court found as facts:</p> <p>“(1) That Betsey R. Gunderson died on the 6th day of October, 1913, and was a resident at the time of her death of the county of Crawford in the state of Wisconsin.</p> <p>“(2) That she left her surviving Thomas B. Rogers, Elmer E. Rogers, Geneva Stunlcard, Effie Salmon, sons and daughters of said deceased; D'ove Stunlcard, a grandchild and daughter of Dora Stunlcard, deceased; Eston Salmon, Ruth Salmon, Sheldon Salmon, and Forest Salmon, grandchildren and children of Pearl Salmon, deceased, daughter of Betsey R. Gunderson, deceased; and her husband, Ole Gun-derson.</p> <p>“(3) That the said Ole Gunderson was the "third husband of the said Betsey R. Gunderson, deceased, and was married to the said Betsey R. Gunderson on the 23d day of February, 1898. That the said Ole Gunderson was at that time thirty-five years of age, and that the said Betsey R. Gunder-son was approximately fifty-seven years of age. That the said Ole Gunderson at the time was, and for a period of about one year previous to his intermarriage with the said Betsey R. Gunderson had been,- in the service of the said Betsey R. Gunderson as a farm hand.</p> <p>“(4) That approximately all of the property of the’ deceased, Betsey R. Gunderson, had been accumulated by and was inherited from the former husband of the said Betsey R. Gunderson, namely, John Rogers, the father and grandfather of the legatees and devisees mentioned and named in said will.</p> <p>“(5) That on the 28th day of February, 1913, the said Betsey R. Gunderson made and executed her last will and testament, which will was offered for probate; that the said will was executed in due form before E. Hoffland and Ada H. Garvey as attesting witnesses; that by the terms of said will all of the property of said Betsey R. Gunderson was bequeathed and devised in equal shares to her children and the representatives of her deceased children.</p> <p>“(6) That at the time of the execution of said last will and testament the said Betsey R. Gunderson was of sound mind and disposing memory, and that the same was executed by the said Betsey E. Gunderson of her own free will and without the exercise of undue influence upon her from any source.”</p> <p>Conclusions of law conformable to the sixth finding of fact were made, and from a judgment directing that the will be admitted to probate and reversing the order of the county court refusing probate thereof Ole Gunderson, the contestant, appealed.</p>

Civil action for assault and battery. Plaintiff owned a farm in Grant county which, on March 19, 1913, he rented on shares to the defendant, the lease containing a statement that the lessor “reserves and retains to himself or his agent the right of entry upon said premises for the purpose of fall plowing any ground that may have been sown to small grain the spring or fall preceding, ¿nd at any and all times for any purpose of improvement, or for any purpose which the said…

<p> Boundaries of land: Adverse possession. </p> <p>Findings of tbe trial court locating the boundary line between the lands of the respective parties, and to the effect that defendant had not acquired title to the strip in dispute by adverse possession, are held to be sustained by the evidence.</p>

Paek, Circuit Judge. This is an action upon express contract. The complaint sets forth two causes of action; the first for the purchase price of two colts alleged to have been sold by plaintiff to the defendants through one Orrin Loomis acting as defendants’ agent; the second is for the value of a horse owned by plaintiff and taken and sold by defendants without plaintiff’s authority. The answer is a general denial as to both causes of action.

PaRE, Circuit Judge. On the morning of February 9, 1914, the plaintiff, a resident of this state, while traveling from Sioux City, Iowa, to Menomonie, Wisconsin, on one of the defendant’s trains, suffered personal injury by reason of the derailment of the train on which he was riding, near Bigelow station in the state of Minnesota.

B. Quinlan, Judge. Ejectment for forty acres of farm land. The defendant claimed title by adverse possession under both the ten- and twenty-year statutes, and also claimed (in case of defeat on the question of title) to be entitled to a lien on the premises for a mortgage of $400 wbicb be bad paid tbereon, as well as for taxes and improvements. Tbe facts were not very seriously in dispute.

<p>Jurisdiction: Quasi-judicial tribunals: Certiorari: Presumptions: Taxation: Assessment: County equalization: Review by tax commission: Procedure: Mandatory requirements: Statutes construed: “Commission:” Delegation of power.</p> <p>1. "When the petition for a writ of certiorari challenges the validity of the decision of a quasi-judicial tribunal acting under a special grant of power, because of specific failure to observe jurisdictional requirements, and is answered by a return purporting to show just what was done in respect thereto, it cannot be presumed in support of the decision that something additional was done.</p> <p>2. In reviewing, under secs. 1077a-1077Z, Stats., a county board’s determination of the relative value of taxable property in the assessment districts of the county, the tax commission acts as a quasi-judicial tribunal under a special grant of power, with specified procedure, and the mandatory requirements of the statute must be at least substantially followed as an essential to validity of the result.</p> <p>3. Under sec. 1077/, Stats., the parties interested in such review are entitled to an opportunity to hear the evidence produced, to oppose it with evidence, to be heard by counsel upon the case as closed by the proofs, and to have the controversy determined upon such proofs.</p> <p>4. The term “commission,” as used in sec. 1077/, Stats., means the commission, not a single member of it, or its secretary, or any employee. At least a quorum of the commission must participate in the hearing and determination.</p> <p>5. The authority granted to the commission by sec. 1087 — 40a, Stats., “to appoint one of its members, or its secretary or engineer, to act for it to investigate and make report upon any matter pending before it,” etc., is limited to purely administrative duties, as distinguished from those of a judicial nature.</p> <p>[6. Whether the mere failure of the members of the commission or a majority of such members to sign the final determination, as required by sec. 1077j, Stats., would be fatal to such determination, not decided.] •</p>

Croix county: Geobge ThokpsoN, Circuit Judge. This is an action to recover damages as commission upon an alleged sale of real estate. Tbe plaintiff is a real-estate broker in tbe city of Hudson. Defendant owned a tract of land in the outskirts of the city. In November, 1913, the defendant and plaintiff had a conversation in reference to selling defendant’s property. No contract was entered into at this time.

This action was brought to recover damages for. slander. The complaint sets up three separate causes of action. The defendant answered, setting up two counterclaims, to each of which the plaintiff demurred. The court-sustained the demurrer as to the second counterclaim and overruled it as to the first.

Ray SteveNS, Circuit Judge. Plaintiff brought this action as administrator of tbe estate of Andrew Grady, deceased, to recover damages from tbe defendant for tbe death of said Grady. Tbe defendant maintains a double track on Williamson street in tbe city of Madison between Baldwin and Dickinson streets, converging into a switch at Dickinson street and extending eastwardly as a single track.

Ray SteveNS, Circuit Judge. This action was brought to recover damages for slander. The complaint sets up four separate causes of action. The defendant answered by way of general denial and set up matters in mitigation of damages. The defendant objected to any evidence under the first and third causes of action, on the ground that neither of them stated facts sufficient to constitute a cause of action.

<p> Trial: Setting aside verdict: Appeal: Life insurance: Mutual benefit certificate: Avoidance by misstatements in application: Evidence as to tuberculosis: Competency: Weight: Statutes: Effect on contract. </p> <p>1. The verdict of a jury is not to be set aside except in a case where there is no evidence in its support, or where the great weight of the evidence is against it and that weight is so reinforced by undoubted physical facts or by all the reasonable probabilities and inferences that it becomes overwhelming.</p> <p>2. The decision of the trial court is not to be set aside on appeal unless it was clearly wrong.</p> <p>3. The confidential report of a medical examiner of a mutual benefit society, accompanying an application for membership therein, is competent evidence as against the society in favor of the beneficiary under a certificate issued on such application and report; but statements of the applicant himself in such application are self-serving declarations and are not admissible as evidence in behalf of the beneficiary.</p> <p>4. Although in this case, in the absence of any other evidence, such a report of the medical examiner might sustain an inference that the applicant did not then have tuberculosis, yet, since the facts stated therein might all be true and yet the tubercular condition have existed, it was not sufficient to sustain a verdict to the effect that such condition did not then exist, as against unimpeached and certain affirmative evidence that it did in fact exist.</p> <p>5. Statements in the application concerning the health of the insured having been expressly made warranties, and it having been provided in the benefit certificate that if untrue they rendered the contract void, that effect must he given to them unless otherwise provided by statute.</p> <p>6. Ch. 507, Laws of 1911 (sec. 4202s, Stats. 1913), did not change the rights of the parties under an insurance contract made prior to the enactment of that statute.</p> <p>7. An insurance contract not made in this state is not affected, so far as contract rights are concerned, by Wisconsin statutes.</p> <p>8. Secs. 4200, 4201, Gen. Stats. Kansas, 1909 (relating to the effect of misrepresentations in obtaining a policy of insurance), apply only to life insurance companies and not to fraternal benefit societies.</p>

<p>Appeal from a judgment of tbe circuit court for Portage county: ByeoN B. Paejc, Circuit Judge.</p> <p>Action for personal injury sustained by being struck by defendant’s automobile. About 12:30 o’clock, noon, of June 11, 1912, plaintiff, a boy fifteen years of age, was strack by defendant’s automobile in Wausau near tbe center of Third avenue about fifteen feet south of its intersection with tbe south curb line of Stewart avenue extended. Third avenue runs north and south. Stewart avenue runs east and west. Plaintiff had been fishing and was returning north on Third avenue on a bicycle with a sixteen-foot bamboo fish pole attached thereto. lie was riding about one and one-half or two feet east of the east rail of the car track at a speed of about five or six miles per hour. Defendant was going west on Stewart avenue at a speed of from ten to twenty miles per hour, made a turn into' Third avenue, cutting the southeast corner short, and struck plaintiff at a point about thirty feet southwest from the corner, near or on the east rail of the single car track in the center of Third avenue.</p> <p>The jury found (1) that defendant was negligent in the operation of his car; (2) that such negligence was the proximate cause of plaintiff’s injury; (3) that the latter was not guilty of contributory negligence; and (4) assessed his damages at $900. The court reduced the damages to $600, and from a judgment entered in favor of plaintiff for that amount, with costs, the defendant appealed.</p>

Eeitz, Circuit Judge. Action to recover damages for personal injuries sustained by plaintiff November 23, 1912, by reason of being run over by one of defendant’s cars. Tbe negligence of defendant relied upon to sustain a recovery was its failure to fence its road as required by sec. 1810, Stats. 1911. That section provides: “1.

<p>Appeal from a judgment of the circuit court for Milwaukee county: F. C. Esci-iweilek, Circuit Judge.-</p> <p>Action to recover damages sustained by the plaintiff by reason of injuries received by his minor son, who was run over by one of defendant’s trains on November 23, 1912. The action was begun in the civil court and a judgment for ?2,000 was entered in favor of the plaintiff. Upon appeal to the circuit court the judgment was affirmed, and the defendants appealed to this court.</p>

Ray SteveNS, Circuit Judge. August Frederick came to Ms death from a personal injury be received while in the employ of the appellant as a park ■caretaker. He was engaged to work by the administrative officers in charge of the public parks of the city. He was mowing grass with a lawn mower outside of the park area and in that part of the street belonging to private property, subject to the public easement.

Bay Stevens, Circuit Judge. This is an action to recover tbe principal and interest on a series of notes, secured by a chattel mortgage, executed by tbe defendant. Prior to March, 1910, Mrs. M. W. Keeley, tbe defendant, conducted a confectionery store in tbe city of Madison. Janies T. Keeley, her husband, acted as her agent.

<p>Appeal from a judgment of tbe circuit court for Dane county: E. Rat Steveus, Circuit Judge.</p> <p>Tbe appeal is from a judgment confirming an order of tbe Industrial Commission dismissing tbe application of tbe appellant for compensation from tbe respondent Planhinton Packing Company. The appellant was employed as a tinsmith by the Packing Company in its plant. On April 16, 1913, he accidentally cut his left wrist. The respondent Packing Company sent him to a physician who treated him. On April 25, 1913, the wound was practically healed and the physician discharged him as cured. Saturday evening, April 26th, the appellant engaged in a boxing match and on the following Monday night suffered pain in his wrist. On the following day his wrist was found to be infected, and finally he lost bones of the hand and wrist, incapacitating him from following his trade.</p> <p>The Commission found as follows:</p> <p>“From the evidence before us we are fairly satisfied that the wrist became infected at the time of the injury on April 16th through the introduction of poisonous bacteria known as streptococci. Through nature’s process these germs were walled off and did no damage at first. This was because the patient' was strong enough to resist the attack of the bacteria. Fiad he not entered the boxing bout, we are satisfied that in the course of time the bacteria worfld have been expelled from the system without harmful results. But the strenuous exercise of the boxing bout had the effect of Fighting up’ or stirring into activity the. poisonous germs and at the same time lessening the resisting power of the applicant, resulting in the active poisoning of the arm.</p> <p>“Before entering the bout, on the 25th of April, at the time of his discharge by the doctor, the applicant was advised not to enter the bout. The doctor told him it might do harm and it might not; it would be impossible to say, but advised him not to enter it and explained to him the danger of a possible tearing or bruising. Before entering the bout the applicant bandaged his wrist and provided against tearing or bruising, and no tearing or bruising resulted from the bout. We cannot say from the evidence that applicant wilfully disregarded the advice of his physician, because we cannot find that the physician gave him positive instructions not to enter the bout, but merely advised him that there was danger of harm from tearing or bruising. He certainly did not point out to the. applicant the danger of the results that actually did follow from the exercise. Applicant was not warned of the danger of blood poisoning from the lighting up’ of the present infection. Evidently he did not know that his arm was infected or that such infection might become dangerous from strenuous exercise. Eor this reason we cannot say that the applicant wilfully disregarded the advice of the physician.</p> <p>“Had the applicant not been injured on the 16th of April while in the employ of the respondent, the loss of the use of his hand would not have followed the boxing bout. Notwithstanding such accident, had applicant refrained from entering the boxing bout and given his wrist only moderate exercise for a few days more, no serious results would have followed.”</p> <p>Upon the foregoing findings the Commission dismissed the application. The appellant assigns the following errors:</p> <p>1. That the finding that “Had he not entered the boxing bout, we are satisfied that in the course of time the bacteria would have been expelled from the system without harmful results” is not supported by the evidence.</p> <p>2. That the finding that “Notwithstanding such accident, had applicant refrained from entering the boxing bout and given his wrist only moderate exercise for a few days more, no serious results would have followed,” is not supported by the evidence.</p> <p>3. That the findings of fact do not support the order made by the Commission.</p>

<p> Bills and notes: Defenses: Waiver: Forgery: Ratification: Estoppel: Payment of other forged notes: Evidence as to genuineness of indorsement: Presumptions: Burden of proof: Appeal: Harmless error. </p> <p>1. A party who refuses to pay a note which is presented to him and, although he does not unequivocally assert that his signature is a forgery, does not say or do anything to lead the holder to believe that he does not intend to rely upon any legitimate defense he may have, does not thereby ratify the signature if forged, or waive the defense of forgery, or estop himself from setting up that defense.</p> <p>2. When one knowingly pays a note to which his name is forged he does not thereby render himself liable for other forgeries of his name by the same person, where those dealing with the forger have no knowledge that any forged notes have been paid and have not been injured or misled or deceived by such payment.</p> <p>3. Where, in an action against the estate of an alleged indorser of a note, the defense was forgery, other notes found among his effects upon which the indorsements of his name were concededly written by the same person as was the indorsement upon the note in suit, were. competent evidence on the question of the genuineness of the latter indorsement — the fact that such other notes had come into the possession of the deceased giving rise to a presumption that he had paid them, and such payment being in the nature of an admission that he had in fact indorsed them. Siubeckek and Kerwin, JX, dissent.</p> <p>4. Exclusion of such notes was not, however, a prejudicial error in this case, because the evidence that the indorsement in question was forged so greatly outweighed the evidence of its genuineness that the verdict would have been the same if they had been admitted.</p> <p>5. In an action against the estate of an alleged indorser of a note, where the defense was forgery, the burden was upon the plaintiff to show the genuineness of the signature by a preponderance of the evidence, and the jury were properly so instructed. Assuming that sec. 4193, Stats, (making possession of the note presumptive evidence that it was indorsed by the person by whom it purported to be indorsed), applies to the case of a deceased indorser, it does not relieve plaintiff of the burden of proof, but simply permits him to make a prima facie case in a way in which he could not make it before.</p> <p>6. Where the plaintiff has the burden of proof at the beginning of a trial it remains with him to the end. It is not shifted when a prima facie case has been made.</p>

<p>Appeal from a judgment of the circuit court for Wauke-sha county: MáetiN L. Luecic, Circuit Judge.</p> <p>Action for damages for the alleged negligent operation of a dam. The material allegations of the amended complaint are:</p> <p>“That at all the times hereinafter mentioned he [plaintiff] was, and now is, the owner in fee of certain real estate, dam, mill, and mill race, situate on the Bark river, in the town of Summit, Waukesha county, Wisconsin, and more particularly described as follows, to wit: [Here follows description of lands.’]</p> <p>“That the Bark river is a river situated in the county of Waukesha, state of Wisconsin, and that portion upon which the mill property of this plaintiff is situated, as aforesaid, runs in a general southwesterly direction from the lower or western end of Nagawicka Lake to the lower or southern end of Hpper Nemahbin Lake, and that the property of this plaintiff is situated upon said river at a distance of about one mile from the opening of Nagawicka Lake.</p> <p>“That for upwards of seventy (10) years prior to the commencement of this action, this plaintiff and his predecessors in title had maintained said mill and dam, and that during all of said period of time said plaintiff and his predecessors in title have claimed adversely to all the world, and have in fact enjoyed and maintained a bead of water at said dam of from (9) nine to (11) eleven feet in beigbt, and that such use has been maintained openly, peacefully, and adversely at all times.</p> <p>“Plaintiff further alleges that the above named defendant, Ephraim Humphrey, is the owner of a certain mill property upon that portion of the Rark river northeasterly and above the mill property of this plaintiff and immediately west of the opening of said Nagawicka Rake. That the exact time when said mill was constructed and dam built by the predecessors in title of said defendant Humphrey is not known to this plaintiff, but said mill was built and dam constructed long subsequent to the construction of the mill property of this plaintiff, and that said mill was built and said dam constructed more than fifty (50) years before the commencement of this action, and that during said period of fifty (50) years the two mills have been operated and maintained upon said Bark river and have jointly used the water therefrom for their mill purposes.</p> <p>“Plaintiff further alleges that the above named defendants, Francis E. McGovern, ex officio as governor of the state of Wisconsin, Jahe Alford, E. A. Eirge, George W. Fecit, A. L. Osborne, James 0. Davidson, John 0. Burns, and B. G. Walters, constitute the fish commission of the state of Wisconsin, and as such have charge, supervision, and direction of the several fish hatcheries maintained by the state of Wisconsin pursuant to the laws of said state.</p> <p>“That some time in' the year 1906 the state of Wisconsin acquired certain real estate situate upon said Bark river, midway between the two mills hereinbefore described, and that for the purpose of conducting a fish hatchery thereon a series of ponds of considerable extent have been excavated and connected, and that said ponds require a large amount of water to be suitably operated in connection with said hatcheries.</p> <p>“That as this plaintiff is informed and verily believes and charges the fact to be, at the time of the installation of said fish hatchery the above named defendant, the state of Wisconsin, through the above named fish commissioners, defendants herein, or their predecessors in office, entered into a certain contract or agreement with said defendant Humphrey, wherein and whereby it was agreed that if at any time the water in said ÜSTagawicka Lake should reach so low a stage as to endanger what in the opinion of said fish commission would constitute a sufficient supply of water for said hatchery, then and in that case the said defendant Humphrey promised and agreed that he would shut down his mill until such time as the water should again reach such a stage that said fish commission should determine that the running thereof might be continued. And this plaintiff -further alleges that in and by said contract said fish commissioners were granted practical supervision and control over the water at said Humphrey dam,-and that ever since the making of said contract said fish commissioners have exercised the rights therein granted and controlled the head of said water at all times.</p> <p>“That-on the night of May 27, 1912, the said defendants fish commissioners, through their agents and servants, negligently and carelessly, and without having a proper regard for the rights of this plaintiff, removed the dashboards in the runway at the said Humphrey dam and kept them out for the entire night, thereby turning loose great volumes of water in and upon the mill-pond and dam of this plaintiff, such water being of sufficient volume to destroy the flume used by this plaintiff in connection with his said mill, and in fact did destroy the same, and further, to destroy and carry away a portion of this plaintiff’s mill-dam, and did in fact destroy and carry away the same.</p> <p>“That at the time of the removal of said flashboards there was a great head of water at the said Humphrey dam proceeding from bfagawicka Lake, and a quantity greatly in excess of the usual amount at said place, caused by heavy recent rains, and the defendants, and each of them, and their servants, agents, and employees, knew this fact, and notwithstanding the same they did remove said flashboards and turn loose the waters at said dam negligently and carelessly and in such a manner as to absolutely destroy the flume and mill-dam of this plaintiff as aforesaid.</p> <p>“This plaintiff further alleges that the contract entered into by said Humphrey with the state of Wisconsin and its fish commissioners is in derogation of the vested rights of this plaintiff, and that said Humphrey had no right to authorize or permit the said state of Wisconsin, or its fish commissioners, to exercise, or to attempt to exercise, any control over the waters at said Humphrey dam, or to authorize the said state of Wisconsin, or its fish commissioners, to enter upon his said premises and remove said dashboards to the damage of this plaintiff as aforesaid.</p> <p>“That this plaintiff is dependent for his maintenance upon his income derived from the operation of his said mill, and that by reason of the premises he is unable to operate the same in any way or manner whatsoever. That his business has been seriously injured and practically destroyed. That it will cost him at least thirty-five hundred dollars ($3,500) to replace the flume 'and restore his mill to the condition in which it was before said 27th day of May, 1912, and that he has been irretrievably damaged by reason thereof.</p> <p>“That this plaintiff is unable to state how long it will be before he can restore his mill to operation, but alleges upon information and belief that it will take at least two (2) months so to do, and that he had already lost, and that during said period of time he will continue to lose, large numbers of his customers, to an extent that will render his mill property practically valueless.</p> <p>“That this plaintiff has been damaged to an amount exceeding the sum of twenty thonsand dollars ($20,000).” . . .</p> <p>“Plaintiff further alleges that this suit has been authorized by the defendant, the state' of Wisconsin, by general law known as chapter 624 of the Laws of 1913, which said law was duly 'enacted by the legislature of the state of Wisconsin at the 1913 session thereof, approved by the governor, officially published in the Madison State Journal,, and now is the law of this state.”</p> <p>The defendants, the state of Wisconsin and the commissioners of fisheries, answered, and among other defenses denied negligence on their part, and alleged that plaintiff’s damages, if any, were caused by his own negligence. At the opening of the trial they interposed a demurrer ore tenus on the ground that the complaint failed to state facts sufficient to constitute a cause of action against them. The demurrer was sustained, and a judgment dismissing the complaint as to the demurring defendants was entered. Erom such'judgment the plaintiff appealed.</p> <p>They cited, among other cases, Houston v. State, 98 Wis. 481, 74 N. W. Ill; Chisholm v. Georgia, 2 Dali. (U. S.) 419 ; State v. Curran, 7 Eng. (12 Ark.) 321, 340; Coster v. Albany, 43 1ST. Y. 399; Williams v. Stale, 94 App. Div. 489, 492, 88 N. Y. Supp. 19; PHee v. State, 20 La. Ann. 547; Amstein v. Gardner, 134 Mass. 4; Metz v. Soule, K. & Co. 40 Iowa, 236; Wright v. Hldred, 46 Hun, 12, affirmed in 137 N. Y. 556, 33 N. E. 337; Shaver v. Fldred, 114 N. Y. 579, 21 N. E. 411; Waller v. State, 144 N. Y. 579, 39 N. E. 680; Lakeside P. Co. v. State, 15 App. Div. 169, 14 1ST. Y. Supp. 281; Sayre v. State, 123 N. Y. 291, 25 N. E. 163; Woodbridge v. Marks, 5 App. Div. 604, 40 N. Y. Supp. 728; Woodman v. State, 127 N. Y. 397, 28 N. E. 20; Gibney v. State, 137 N. Y. 1, 33 N. E. 142; Spencer v. State, 110 App. Div. 585, 97 1ST. Y. Supp. 154, affirmed in 187 N. Y. 484, 80 N. E. 375; Chisholm v. Slate, 141 N. Y. 246, 36 N. E. 184; Sipple v. State, 99 N. Y. 284, 1 N. E. 892, 3 N. E. 657; Bowen v. State, 108 N. Y. 166, 15 N. E. 56, 443; Comm. v. Jackson, 5 Bush, 680; 1 Cooley, Torts (3d ed.) 208; Louisiana v. Jumel, 107 U. S. 711, 728, 2 Sup. Ct. 128.</p> <p>They argued that the state is not liable for the torts of its officers. 26 Am. & Eng. Ency. of Law (2d ed.) 480; Houston v. State, 98 Wis. 481, 74 3ST. W. Ill; Lowe v. Conroy, 120 Wis. 151, 159, 97 N. W. 942; Chapman v. State, 104 Oal. 690, 38 Pac. 457; Bourn v. Hart, 93 Cal. 321, 28 Pac. 951; Green v. State, 73 Oal. 29, 11 Pac. 602, 14 Pac. 610; Moody v. State’s Prison, 128 N. O. 12, 38 S. E. 131; Murdock P. G. Co. v. Comm. 152 Mass. 28, 24 N. E. 854; Billings v. State, 27 Wash. 288, 67 Pac. 583; Lewis v. State, 96 N. Y. 71; 36 Oyc. 881, and cases cited under note 13; Gassidy v. St. J oseph, 247 Mo. 197, 152 S. W. 306; State v. Mut. L. Ins. Go. 175 Ind. 59, 71, 93 N. E. 213. Ch. 624, Laws of 1913, did not create any liability against the state where none existed before, but had the effect simply of waiving the state’s immunity from suit; for it is well settled that the exemption of the state from liability for the torts of its officers does not depend upon its immunity from suit without its consent, but rests upon grounds of public policy which forbid that any such liability should ever arise. 26 Am. & Eng. Ency. of Law (2d ed.) 480; Moody v. State’s Prison, 128 N. C. 12, 38 S. E. 131; Bourn v. Hart, 93 Oal. 321, 28 Pac. 951; Murdock P. G. Go. v. Gomm. 152 Mass. 28, 24 1ST. E. 854; Lewis v. State, 96 N. Y. 71; Billings v. State, 27 Wash. 288, 67 Pac. 583; Chapman v. State, 104 Cal. 690, 38 Pac. 457; 36 Oyc. 881; Ohicago, M. & St. P. R. Go. v. State, 53 Wis. 509, 10 N. W. 560. And see Riddoch v. State, 68 Wash. 329, 123 Pac. 450. Oh. 624, Laws of 1913, is unconstitutional in that it gives to this plaintiff rights and privileges denied to every other citizen in the state of Wisconsin whether under similar circumstances or not. Sec. 1, Amendm. XIV, Const, of U. S.; State ex rel. ZUlmer v. Kreutzberg, 114 Wis. 530, 532, 533, 90 N. W. 1098 ; Borgnis v. Falk Go. 147 Wis. 327, 373,. 133 N. W. 209; Ex parte Strieker, 109 Eed. 145, 150; Barbier v. Connolly, 113 U. S. 27, 5 Sup. Ct. 357; Gulf, G. & S. F. R. Go. v. Ellis, 165 U. S. 150,17 Sup. Ot. 255; Brannon, Eourteenth Amendment, 335, 343; Johnson v. Goodyear M. Go. 127 Oal. 4, 59 Pac. 304; 8 Oyc. 1076; Randolph v. Builders c§ P. S. Go. 106 Ala. 501,17 South. 721; Missouri v. Leiuis, 101 U. S. 22; Durkee v. Janes-ville, 28 Wis. 464; Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128; State ex rel. Kelloqq v. Currens, 111 Wis. 431, 87 N. W. 561.</p>

<p> Wills: Construction: Extrinsic evidence: Devise of land not owned,: Mistake in clescription: Giving effect to intention. </p> <p>1. The intention of the testator, so far as it can he discovered from his will, must be considered as expressed therein.</p> <p>2. Judicial construction of a will begins only when uncertainty of meaning arises; but such uncertainty may arise as well by ap- . plication of the words of a will to the subject with which it ' deals as from the words themselves.</p> <p>3. While extrinsic evidence cannot be resorted to for the purpose of changing or explaining a will, it may be for the purpose of showing the circumstances characterizing its making; and, for the purpose of determining the meaning in fact and intended to be expressed therein, the will may be read in the light of such circumstances.</p> <p>4. Where the intention of the testator is plain, the court may and should go to the uttermost limits of construction authority to discover it expressed in the language used to that end.</p> <p>5. A testator, who for many years had owned the southeast quarter of the northwest quarter and the southwest quarter of the northwest quarter and no other lands in a certain section, after devising the southeast quarter of the northwest quarter to one son, in terms devised the northeast quarter of the northwest quarter in said section (which he had never owned) to another son, charged with payment of a legacy to a daughter. The will did not dispose in any way of the southwest quarter of the northwest quarter, although all of testator’s other property was by specific mention distributed. It being manifest that the testator intended to devise to the second son the southwest quarter of the northwest quarter, the will is construed so as to give effect to that intention.</p>

<p> Interurban railways: Killing of child on track: Negligence of motorman: Evidence: Unsupported verdict: Gross negligence: Proximate cause: Violation of safety statute. </p> <p>1. In an action to recoyer for death, of a hoy about four years old who started suddenly to run diagonally across a street and was struck and killed by defendants’ interurban electric car, which, as the jury found, was not running at an excessive rate of speed, a finding by the jury that the motorman was negligent in not stopping the car in time to avoid the accident is held not to be supported by any credible evidence, it appearing clearly from his uncontradicted testimony, corroborated by a,- number of independent facts and circumstances, that as soon as he saw the boy leave the sidewalk he applied the brake and did everything in his power to stop the car.</p> <p>2. The contradictory impressions or estimates of several witnesses as to the speed of the car, which they observed only momentarily at a time when they were laboring under excitement, are held in this case to be too vague, uncertain, and unsatisfactory to put in issue the large volume of evidence to the contrary.</p> <p>3‘. Gross negligence of the defendant is not a sufficient basis for a recovery for a personal injury unless such negligence was the proximate cause of the injury.</p> <p>[4. Whether the failure of a company operating an interurban railway to provide a car with a suitable fender or pilot as required by sec. 1636 — 58, Stats., which makes such failure punishable by fine only, should, under the decision in Pinosa v. Northern G. Co. 152 Wis. 473, be classed with gross negligence, so that a person injured by reason of such failure could recover even if he was guilty of contributory negligence; is not decided.]</p>

<p>Appeal from a judgment of the circuit court for Monroe county: E. 0. Higbee, Circuit Judge.</p> <p>Action for breach of promise. Verdict and judgment for plaintiff. Defendant appealed.</p>

<p>Appeal from a judgment of the circuit court for Outagamie county: John Goodland, Circuit Judge.</p>

N. Risjokd, Judge. Action for personal injury. On November 18, 1912, the plaintiff, who was the foreman of a -pile-driver crew, was injured while they were moving the pile-driver sideways over sand that had previously been pumped in and on which a coal dock was being constructed. It was intended to move the pile-driver about 100 feet to'drive certain piles that had been left, and it had been moved about thirty-five feet when plaintiff was injured.

<p>Appeal from a judgment of of tbe circuit court for Milwaukee county: W. J. Turnee, Circuit Judge.</p> <p>Tbis is an action brought against tbe defendants as members of tbe state board of agriculture to recover for personal injuries sustained by tbe plaintiff while attending tbe state fair. It is alleged in tbe complaint that as such board it was tbe duty of the defendants to exercise sole control of tbe affairs of tbe department of agriculture and of state fairs and make such by-laws, rules, and regulations in relation to the management of tbe business of such department and state fairs as should from time to time be determined; that in 1910 between tbe 12th and 16th of September, at West Allis, Milwaukee county, Wisconsin, the defendants as such board held a fair and that at such fair there were exhibited products of agriculture, dairying, horticulture, manufactures, and domestic arts, and that said defendants as such board provided in connection with such fair as a special attraction for patrons an exhibition of flying by a~n aeroplane; and that such fair and grounds were under the sole direction and control of the defendants as such board; that said fair was widely advertised and the public invited to attend the performances and the exhibition of flying by the aeroplane; that the defendants as such board made a contract with Wright Bros, for giving the exhibition; that by the terms of said contract it was provided that the defendants as such board were to furnish the infield of the race track free from obstructions and to assume all liabilities to the general public resulting from accident occurring on the infield; that at such fair grounds there was a large grand stand which faced the infield and two race tracks; that the defendants without authority from said board negligently took charge of, permitted, and directed that said aeroplane should be caused to rise not from the infield, but from the one-mile track directly in front of the grand stand, which was exceedingly dangerous to those in attendance; that on the 16th of September, 1910, the plaintiff was in attendance at said fair and paid the requisite fee for entrance and also purchased a ticket for admission to the grand stand; that it was the duty of the defendants as such board and the defendants personally to furnish the public, including the plaintiff, with a safe place for viewing the exhibitions and attractions and particularly the flight of the aeroplane, and to engage competent operators to guide it, and to take such suitable and sufficient precautions necessary to prevent plaintiff from being in ’a position of peril at such time and place of falling of said machine; that contrary to the contract between said board and Wright Bros, and at the direction and permission of the defendants said Wright Bros, attempted to give an exhibition flight in said aeroplane by causing it to rise from the one-mile track directly in front of the grand stand, which defendants well knew was dangerous to spectators and onlookers; tbat when said aeroplane bad traveled only a short distance, suddenly, because of lack of control over it, it was caused to descend in front of the grand stand and upon the plaintiff, seriously injuring her.</p> <p>The answer put in issue the material allegations of the complaint, after admitting that William MacLaren, Grant U. Fisher, O. TI. Everett, George Wylie, George C. Cox, E. A. Cannon, George McKerrow, Charles L. Hill, John L. Herbst, James J. Nelson, Ed. Nordman, and L. E. Scott together with David Wedgwood constituted the board of agriculture of the state of Wisconsin by virtue of their appointment by the governor of said state and due qualification. The answer also set up contributory negligence on the part of the plaintiff.</p> <p>On the trial a verdict was directed in favor of all of the defendants except the appellants here. The jury returned the following verdict:</p> <p>“(1) Was it negligence to make the flight with the aero-plane from the place where it was attempted on September 16, 1910 ? A. Yes.</p> <p>“(2) If you answer the first question 'Yes,’ was such negligence the proximate cause of the plaintiff’s injury? A. Yes.</p> <p>“(3) Did either of the defendants Fisher, Everett, Wylie, McKerrow, Nordman participate in the starting of the aero-plane on the race track? A. Yes.</p> <p>“(4) If you answer question 3 'Yes,’ then name those so participating. A. Grant U. Fisher, G. E. Everett, George Wylie, George McKerroiu, Ed. Nordman.</p> <p>"(5) Did either of the defendants Fisher, Everett, Wylie, McKerrow, Nordman consent to the starting of the aeroplane on the race track ? A. Yes.</p> <p>“(6) If you answer question 5 'Yes,’ then name those who so consented. A. Grant U. Fisher, O. R. Everett, George Wylie, George McKerrow, Ed. Nordman.</p> <p>“(7) If you have answered question No. 4 by naming some of the defendants, then answer: Ought said named defendants, in the exercise of ordinary care, to have anticipated that because of the ascent of Hoxey from the race track some sucb injury as occurred to the plaintiff was likely to happen ? A. Yes.</p> <p>“(8) If you have answered question No. 6 by naming some of' tbe defendants, then answer: Ought the said defendants, in the exercise of ordinary care, to have anticipated that because of the ascent of Hoxey from the race track some such injury as occurred to the plaintiff was likely to happen ? A. Yes.</p> <p>“(9) Was Hoxey’s manner of controlling the aeroplane the sole proximate cause of the injury to the plaintiff? A. No.</p> <p>“(10) Was Hoxey’s manner of controlling the aeroplane a proximate cause of the plaintiff’s injury? A. No.</p> <p>“(11) Did Hoxey at the time he attempted to make the ascent handle his aeroplane in a negligent manner? A. No.</p> <p>“(12) If you answer the last question ‘Yes,’ was his so handling the aeroplane a proximate cause of the plaintiff’s injury? A. —■—.</p> <p>“(13) Did the plaintiff assume the risk attendant upon a flight of the aeroplane in the manner in which it occurred? A. No.</p> <p>“(14) Did any want of ordinary care upon the part of the plaintiff proximately contribute to her injury? A. No.</p> <p>“(15) What sum will reasonably compensate the plaintiff for the injuries she sustained ? A. $3,000.”</p> <p>Judgment was ordered on the verdict in favor of the plaintiff against the defendants appealing. Judgment was entered accordingly, from which this appeal was taken.</p>

<p> WorTcmen’s compensation: Injury to. employee while warming himself: 'Negligence. </p> <p>1. The duties of an employee were to dump tram cars containing ■briquettes of iron ore as they came from kilns, pick up briquettes which had fallen, and transfer the cars to the return track. In the intervals between the comings of cars he had some leisure time which he was expected to pass as best he could. On a cold night, after a car came out, he sat or lay down on the track in front of it to warm himself from the hot briquettes, and was caught and injured by the next car. Held,, that at the time of the accident he was “performing service growing out of and incidental to his employment,” within the meaning of sub. (2), sec. 2394- — 3, Stats. 1913.</p> <p>2. Negligence of the employee in such a case does not deprive him of the right to compensation.</p>

Ray Stevens, Circuit Judge. Action to recover damages for breach of an agreement to buy land. Appellant Watson and one Clyde A. Miller were claimed to have jointly made tbe agreement, breached it, and be jointly liable therefor. The instrument sued on was in the ordinary form of a land contract with plaintiff as vendor and defendants as joint vendees.

Affirmed in part; reversed in part. This is an action to foreclose mechanics’ and materialmen’s liens on real estate owned by tbe Mahoney sisters and located on State street in tbe city of Madison. In tbe month of April, 1912, tbe Muskegon Construction & Engineering Company entered into a contract with Margaret E. Mahoney and Josephine 8. Mahoney for tbe erection of a building on State street in tbe city of Madison.

<p> Taxation: Valuation by assessor: Board of review: Disregard of evidence: Jurisdictional error: View of property: Decision, when disturbed: Evidence as to separate valuation of improvements on land. </p> <p>1. The assessor’s valuation of property is prima facie correct and is binding on tbe board of review in the absence of evidence showing it to be incorrect.</p> <p>2. A board of review is not an assessing body, but is a gwasi-judicial body whose duty it is to hear evidence tending to show errors in the assessment roll and to decide on such evidence whether or not the assessor’s valuation is correct.</p> <p>3. Disregard, by the board of review, of competent testimony, un-impeached by other evidence, which shows the assessor’s valuation to be incorrect, is jurisdictional error.</p> <p>4. Where the evidence is conflicting, the board of review may perhaps view property for the purpose of aiding in determining the true value, but it cannot base its decision on such view in disregard of the uncontradicted sworn testimony.</p> <p>5. If, in any reasonable view of it, the evidence Jaken furnished a substantial basis for the action of the board, and it is not shown that it acted arbitrarily or dishonestly, its decision will not be disturbed by the courts.</p> <p>6. The.owner of real property who objects, before the board of review, to the assessment thereof may accept the assessor’s valuation of the land itself and limit his objections and his evidence to the separate valuation of the buildings and improvements.</p>

<p> Death caused by negligence: Electric current: Contributory negligence: Finding by jury: Reversal on appeal. </p> <p>1. In an action to recover for death, of a person caused by negligence, a finding by the jury, approved by the trial court, acquitting the deceased of contributory negligence will not be disturbed on appeal unless the evidence of contributory negligence is clear, convincing, and practically undisputed.</p> <p>2. Plaintiff’s intestate, an adult, knew that electricity was a dangerous agent and that a fellow employee whose hand had come in contact with the metal part of a certain switch had received a severe shock — so severe that a part of the flesh of his hand was actually adhering to the metal, or so believed to be by said intestate; yet, in spite of such knowledge and for no useful purpose, but merely to demonstrate to another employee that a spark could be drawn from the metal part of the switch, he held the knuckle of his little finger close to or in contact with such metal part and received a fatal shock. Held, that he was guilty of contributory negligence as matter of law, even though he did not know, and perhaps had no reason to believe, that the switch was charged with a deadly current. It was not essential that he should have known the précise extent of the danger.</p>

<p> Contracts: Mortgages taken by foreign corporations: Validation by statute: Subsequent invalidation by repeal: Impairing obligation: Statutes: Repeal: Construction. </p> <p>1. Ch. 214, Laws of 1911, having validated mortgages which were void (under sec. 17706, Stats.) because taken by foreign corporations not licensed to do business in this state, such mortgages could not be again invalidated by the repeal of that act, since that would be an unconstitutional impairment of the obligation of contracts.</p> <p>2. By ch. 214, Laws of 1911, mortgages taken by foreign corporations before May 26, 1911,- were declared valid. By ch. 248, Laws of 1913, mortgages taken by foreign corporations after May 26, 1911, and prior to January 1, 1914, were declared valid. Held, that there was no intent to invalidate, by the act of 1913, the mortgages legalized by the act of 1911.</p>

<p>Hail insurance: Mutual company: By-laws construed: Deduction of expenses from proceeds of assessment: Payment of losses pro rata: When expenses were incurred: Presumptions.</p> <p>1. A by-law, made part of a bail insurance policy issued by a mutual company, provided that '“Assessments for hail insurance losses shall be ten cents per acre each year or part of a year that such policy is in force, and the losses of one year, if in the aggregate they exceed the amount realized from the assessment on hail policies for such year and amount of hail insurance on hand, shall he paid pro rata from the amount so realized and on hand, which payment shall he in full for such loss.” Held,, that the general expenses of the hail department of-the company were first to be paid out of the amount realized from the assessment on hail policies, before payment of the balance pro rata upon losses.</p> <p>2. Where, under the by-laws, but one assessment was to be made in each year, which was required to be for “one full year’s losses and expenses,” and the fiscal year ended October 1st, expenses incurred after October 1st were properly payable out of the next year’s assessment; .and where expenses incurred in 1911 were paid out of the 1912 assessment it will be presumed, in the absence of evidence to the contrary, that they were incurred after October 1, 1911.</p>

Fowheb, Judge. Action to recover the purchase price of two carloads of ties amounting to $208.40. Defendants admitted the amount-due on plaintiff's claim, but by way of counterclaim alleged that he had sold them his entire 'cut of ties that season; that he had failed to deliver all he cut, and by reason thereof they were damaged in the sum of $175. They tendered judgment for the difference of $33.40.

<p>Appeal from a judgment of the circuit court for Douglas county: Byeon B. Paek, Judge.</p> <p>This is an action to recover the aggregate amount of two special assessments for street paving made against two parcels of real estate of the defendant company in the city of Superior. The plaintiff is the owner of the special assessment certificates by virtue of assignments from the contractor to whom they were issued. The action is brought under the provisions of sec. 12101, Stats. 1913, which provides in substance that municipal corporations may collect special assessments of this nature by action in the name of the corporation, and that the owner or holder of the certificate may maintain a like action, in which latter action it shall be sufficient to set up a copy of the certificate, specify the amount due and when payable, and allege that the defendant is liable therefor.</p> <p>The certificates in the present case were signed and dated September 25, 1907, and this action was commenced December 6, 1913. Sec. 1183, Stats. 1913 (which has existed in the same form since a date, prior to the Revised Statutes of 1878), provides that no action, either at law or in equity, shall be maintained on such a certificate after six years from its date. This statute was pleaded as a defense and the trial court held that it was a bar to the action, and the plaintiff appeals. ■</p>

<p>Appeal from an order of the circuit court for Waukesha county: Mab.tin L. Lueok, Circuit Judge.</p> <p>This is an application for an alternative writ of mandamus. The petition sets forth that the Thompson’s Malted Food Company is a corporation organized under the laws of the state of Arizona, and that the defendant Thompson is its president and business manager and the defendant Weigh its secretary; that the outstanding stock of said corporation was sold in Wisconsin; that it has its principal offices in the city of Waukesha in said state; that all of its corporate property, assets, and hooks of account are located within the state, and that it is licensed to do business in Wisconsin; that it is engaged in the manufacture and sale of malted food products; that its capital stock consists of 1,000,000 shares of $1 each, and that petitioner holds thirty-five shares of its capital stock; that petitioner desired to obtain a list of the stockholders of said company and to examine its books to ascertain the amount paid by each stockholder for the stock held by him; that due demand was made upon the president and secretary of said corporation, who are the custodians of the books and records of said corporation, for the desired information, which demand was refused; that the request was made in good faith and at reasonable hours and without intent to hinder the business of the company or annoy its officers; that the action of said officers in refusing the demand made upon them was wrongful and contrary to law. The petition prayed that a writ of mandamus issue, directed to the defendants, compelling them to furnish the information requested. On such petition the alternative writ was issued and the defendants appeared and made a motion to quash, for the reason that the court had no jurisdiction of the persons named as defendants or of the subject matter of the action, and because it failed to state facts sufficient to constitute a cause of action or to authorize the issuance of the writ. Each of the defendants demurred separately to the petition on the grounds stated in the motion to quash. The demurrers and motion to quash coming on to be heard, the court made an order denying the motion and overruling the demurrers. From this order the defendants appeal.</p> <p>To the point that the courts of this state will not grant relief of this kind to stockholders in a foreign corporation, coimse| for appellants cited In re Rappleye,A3 App. Div. 84, 59 N. Y. Supp. 338; In re Qrosby, 43 App. Div. 618, 59 H. Y. Supp. 340; State ex rel. Burg v. Milwaukee Med. Goll. 128 Wis. 7, 106 N. W. 116. -</p> <p>cited State ex rel. Bergenthal v. Bergenthal, 72 Wis. 314, 320, 39 NT. W. 566; State ex rel. Richardson v. Swift, 7 Houst. 137, 30 Atl. 781; Dunbar v. American T. & T. Go. 224 Ill. a, 79 N. E. 423; 4 Thompson, Oorp. (2d ed.) § 4532; 5 Thompson, Corp. (2d ed.) § 6743; State ex rel. Watkins v. North American L. & T. Go. 106 La. 621, 31 South. 172; Nettles v. McGonnell, 151 Ala. 538, 43 South. 838; State ex rel. English v. Lazarus, 127 Mo. App. 401, 105 S.- W. 780; Swift v. Richardson, 7 Houst. 338, 347, 348, 32 Atl. 143; Andrews v. Mines Gorp. 205 Mass. 121, 91 H. E. 122; In re Sykes, 10 Benj. (H. S.) 162, 163, Eed. Cas. 13,707; Wood v~ G'wrrey, 57 Cal. 208, 209; Ileywood v. Shreve, 44 H. J. Law, 94, 104; Berry v. K. G., Ft. 8. & M. R. Co. 52 Ran. 759, 34 Pac. 805, 808, 39 Am. St. Rep. 371; Benge's Adm'r v. Bowling, 106 Ky. 575, 51 S. W. 151; Biller v. S. P. R. Go. 52 Cal. 42, 44.</p>