Volume 180 — Wisconsin Reports

Oscar M. Fritz, Circuit Judge. Personal injury. The defendant Samuel Look was engaged in the junk business, and his son, Joseph Look, twenty-four or twenty-five years of age, was his employee. On the 17th day of June, 1920, the defendant Samuel Look, with the assistance of another employee, loaded a truck of the type known as Smith Form A truck with junk and lumber. When loaded the load was as high as the cab on the truck.

Hurlbut, Circuit Judge. Contract. The plaintiff is engaged in the foundry business at the city of Green Bay. The defendant is a contractor and owner of a machine shop1 located at Oshkosh, Wisconsin.

This is an action to affirm a marriage entered into in the state of Illinois between the parties on the 10th clay of January, 1922. At that time the defendant, who had been married-June 15, 1920, and become a widower by the death of his first wife in January, 1921, \yas about sixty-one years of age, and the plaintiff was a single woman about thirty years of age. In 1916 the defendant was adjudged an incompetent and a guardian of his person and estate was appointed.

H. Naber, Judge. Proceedings to revoke the probate of a will. On October 4, 1920,'the will of Christian Laege, deceased, was admitted to probate. Administration proceedings in the usual course were had. A hearing on claims was held; the expenses of the last sickness and the funeral were allowed by the court and paid by the executor.

M. Davison, Circuit Judge. Nuisance. This action was brought by plaintiffs to enjoin the defendant from creating and maintaining a nuisance, alleged to have been caused by the deposit of large quantities of waste, ■ skimmed milk, and refuse in a .creek which flowed from the creamery through lands owned by the plaintiff, resulting in unhealthful and deleterious odors and in damage to the property of the plaintiff.

Agnew, Judge. The plaintiff has a cheese factory near Calamine, the defendant is a wholesale dealer in cheese with his principal office at Hartford, and with a branch house at Brodhead with one Greenwald as manager. In October, 1919, plaintiff by telephone arranged with Greenwald to ship to Brodhead ten boxes of block Swiss cheese and four tubs of wheel Swiss cheese.

<p> Railroads: Accidents at farm crossings: Damage to property: Absence of signals by approaching train: Degree of care required of traveler: Look-and-listen rule: Exceptions: Person driving tractor. </p> <p>1. Sub. 6, sec. 1809, Stats., which provides that a recovery for personal injuries or death caused by the negligent omission of a railway company to comply with the requirements of that section shall not be barred by a slight want of ordinary care, does not apply in an action to recover for damage to personal property.</p> <p>2. Plaintiff, operating a tractor hauling a trailer loaded with gravel, on approaching a railroad farm crossing on an up grade stopped sixty feet from the track and looked and listened. Pie then started to cross the track at a gradually slackening speed and was struck on the crossing by defendant’s train. Held, that the necessity of devoting his whole attention to the operation of the tractor was not such an irresistible diversion of attention as would absolve him from the duty of again looking and listening before crossing the track.</p> <p>3. In determining whethér the trial judge properly held there was contributory negligence as a matter of law, this court will allow his decision to stand unless clearly convinced that it is wrong. ,</p>

Agnew, Judge. This is an appeal by the defendant Oscar Munz from an interlocutory judgment in a partition action.

<p>Appeal from an order of the circuit court for Dodge county: C. M. Davison, Circuit Judge.</p>

M. Davison, Circuit Judge. Personal injury. From the allegations of the complaint’it appears that the defendants are partners; that the plaintiff’s intestate, Emma Michaels, was an employee; that both employer and employee were subject to the provisions of the workmen’s compensation act.

Appeals from a judgment of the circuit court for Ozau-kee county: C. M. Davison, Circuit Judge. The New York Recording Laboratories is a corporation doing business at Grafton, Wisconsin, in the manufacture and sale of phonograph records, and is hereinafter called th.e Laboratories.

<p>Appeal from an order of the circuit court for Brown county: Henry Graass, Circuit Judge.</p> <p>The appeal is from an order overruling a demurrer to plaintiff’s complaint.</p>

J. Monahan, Judge. Action to recover for. personal injuries sustained by plaintiff as a result of jumping from a drawbridge operated by the citjr of Green Bay. The bridge in question is located on Mason street and spans the Fox river. It is of the bas-cule type, there being a portion 115 feet long which is raised by means of an electrically operated counterweight located at its eastern end.

N. J. Monapian, Judge. The appeal is from a judgment dismissing plaintiff’s complaint, with costs. Plaintiff is a foreign corporation engaged in conducting a correspondence school, maintaining its principal office and place of.búsiness in the city of New York.

The Catholic WOman’s Club is a non-stock Wisconsin corporation with its principal place of business at Green Bay.

J. Monahan, Judge. Action to recover the purchase price of milk sold the Clover Leaf Dairy. It was claimed the defendant was either a partner in the Clover Leaf Dairy business or else held himself out as such or as a principal so as to estop him from disclaiming liability. That he was not in fact a partner was admitted before the close of the trial, and the court by consent of both parties so found.

Mandamus. The defendant is treasurer of school district No. 2 of the town of De Pere, Brown county. In 1921, at tire annual school meeting, the electors of that district voted not to hold school. In that situation the school board entered into a contract with one Al De Cleene to transport the children to an adjoining public school, the contract con-taming a provision that no bills would be audited or paid for transporting children to any other than a public school.

Fowler, Judge. November 26, 1919, the plaintiff was riding as a guest in the rear seat of an automobile being driven easterly on Crooks street in the city of Green Bay. This street was intersected at right angles by Adams street, thirty feet wide and paved with asphalt. Both streets were icy with a little sprinkling of snow.

H. Reid, Circuit Judge. Action by the insured to collect payments alleged to be due according to the terms of an oral agreement for accident insurance. On October 26, 1921, plaintiff paid $9.60 to defendant’s agent and received the following receipt: “Application fee, $3. . Required premium, $6.90. Received of Ben Schilbrch an application for a policy in the Inter-Ocean Casualty Company, the first required premium and the application fee above specified.

H. Reid, Circuit Judge. The appeal is from a judgment in plaintiff’s favor for damages sustained by plaintiff’s truck in a collision with a passenger train of the defendant. The facts will appear in the opinion.

H. Reid, Circuit Judge. Action to recover damages for the breach of a contract entered into November 8, 1919, for the sale of ten carloads of lumber at $65 per M. f. o. b. at Evansville, Indiana. The lumber was to be shipped immediately from Tomahawk, Wisconsin, the business, place of' defendants. The first car was shipped December 23, 1919; the second car December 26, 1919; and the third car March 3, 1920. After that no lumber was shipped.

James O’Neill, Circuit Judge. Condemnation. This is a proceeding brought by the respondents under ch. 32, Stats., for the condemnation of certain property owned by plaintiff situated in the village of Owen, the property when condemned to be used for school-district purposes. There was an award by the commissioners of $1,566,661- damages. From this award there was an appeal to the circuit court.

court for Fond du Lac county. Cpiester A. Fowler, Circuit Judge. The defendant corporation is and was the state distributor or manufacturer’s agent.of Oldsmobile auto cars and trucks. Prior to July, 1919, the defendant had written selling contracts as such distributor with a copartnership known as the Theresa Auto Company within certain specified territory in Wisconsin.

Fowler, Circuit Judge. The defendant and appellant, Aaron Fishkin, is the father of Abraham Fishkin. The appellant, who. then was and since has been in the mercantile business at Princeton, on the 21st day of May, 1921, opened a store at Redgranite, supplying therefor a stock of goods of the value of $3,500. The son, Abraham Fishkin, was placed in charge, and from that time until January 2, 1922, the business was conducted under the firm name of Fishkin &' Son.

F. Kellogg, Judge. Action on a promissory note signed b)? a minor and his father.' In the spring of 1920 plaintiff and defendant Lpzvell Simonson, a minor, m,ade an agreement whereby defendant was to work three acres of tobacco and four acres of potatoes on shares, defendant to do the work in caring for and harvesting the crop and, to1 receive oné half the crop in payment.

The appeal is by plaintiff from an order vacating the judgment of said court entered on cognovit on May 6, 1921. Held: and that pursuant to such request, and not otherwise, such notes were thereupon delivered to the said plaintiff, who thereafter indorsed the same over to said Fitzgerald, and that said Fitzgerald thereafter indorsed them to the plaintiff as collateral for an indebtedness owing the latter on account of commissions earned on the sale…

Ray Stevens, Circuit Judge. The appeal is from a judgment affirming an award of the Industrial Commission. Claimant’s husband, John P. Kramer, sustained injuries while painting a bridge in the village of Weyawmega which resulted in his death. Compensation is claimed. The evidence taken before the Commission shows that the village board of the village of Weyawmega instructed the road and bridge committee of such board to have the bridge painted and hire some one to paint it.

<p>Appeal from a judgment of the circuit court for Dane county: E. Ray Stevens, Circuit Judge.</p>

E. Smalley, Circuit Judge. Murder. The plaintiff in error was charged with murder in the first degree for the killing of one Joseph Stake on the 9th of December, 1921. The facts were-largely undisputed. The plaintiff in error, John Shiefel, was a blacksmith and carpenter living at Highland, Iowa county, Wisconsin. Information was filed against his son, William Shiefel, on the same charge, and the two were tried together.

H. Reid, Circuit Judge. As we view this case, only one principle of law is involved, and we briefly state the facts to cover that principle. The defendants conducted an insurance agency known as the North Wisconsin Agency, a corporation. Under the insurance statute they were required to act in their individual capacity as agents. They represented, among other insurance companies, the plaintiff company, with its head office in Chicago.