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and exclusively on such contract; unless (1) like the one upon which it was sued. The prothe statute expressly state what the conse- hibition was against an indebtedness exceed. quences of violating it shall be, and those ing two-thirds of its capital stock. In this consequences are other than the contract case the insurance company had no power to shall be void; or (2) unless the statutory pro- make a contract of insurance on the stock hibition was evidently imposed for the pro- plan, and it was absolutely inhibited from retection of a certain class of persons, who ceiving premiums. Again, in that case the may alone take advantage of it; or (3) un- corporation, bad the benefit of the money borless to adjudge the contract void and incapa- rowed, and was asked to repay it. To a plea ble of forming the basis of a right of action of ultra vires we quoted the following rule, would clearly frustrate the evident purposes from Morawetz on Corporations: “If an agreeof the prohibition itself.” Sustaining his con- ment is legally void and nonenforceable by clusions are the following, among other cases: reason of some statutory or common-law proTrust Co. v. Helmer, 77 N. Y. 64; Insurance hibition, either party to the agreement who Co. v. Scott, 19 Johns. 1; Lester V. Bank, has received anything from the other party, 33 Md. 558; Beecher v. Mill Co., 45 Mich. and has failed to perform the agreement on 103, 7 N. W.695; McPherson v. Foster, 43 Iowa, his part, must account to the latter for what 48. Such a contract will not be enforced, al- he has received. Under these circumstances though it may have been executed by one the court will grant relief, irrespective of the of the parties. Nor can the doctrine of es- invalid agreement, unless it involves some toppel be invoked to bind the corporation to positive immorality, or there are other reaa forbidden act. Kent v. Mining Co., 78 N. sons of public policy why the courts should Y. 159; Miller v. Insurance Co. (Tenn. Sup.) refuse to grant relief.” See, also, Heuer v. 21 S. W. 39. Section 1160 of the Code of Carmichael, 82 Iowa, 290, 47 N. W. 1034; Peat1873 provides that companies organized there- man v. Power Co., 100 Iowa, 245, 69 N. W. under shall not accept premiums. This the 541. If this were an action to recover back appellant knew, or ought to have known, as the premium paid or for benefits received, the he was charged with knowledge of the law. rule just quoted might apply. Pittsburg, C His position is not such as appeals very & St. L. Ry. Co. v. Keokuk & H. Bridge Co., strongly to a court of equity. He paid his 131 U. S. 371, 9 Sup. Ct. 770. But such is money knowing that the company had no not the nature of the proceeding. It is to reright to accept it, and ought not to be allowed cover upon a contract of indemnity, which the to base an estoppel thereon. Again, the corporation had no power to make, and which company was expressly prohibited from is- is prohibited by statute. The case does not suing such a policy as the one in suit.

differ in principle from Lucas v. Transfer Co.. Appellant further contends that, if the cor- supra, which was an action upon a contract poration was not permitted to do the busi- of suretyship. We there held that the corness in which it was engaged, no corporation poration was not liable, and that the officers existed, and that the incorporators became of the corporation could not ratify such a conliable as a partnership for the business done tract. In the Beach-Wakefield Case we held under the articles. The difficulty with this that the corporation was bound to account for contention is that the corporation was not the money it had received on the theory of an organized to do an illegal or unlawful busi- equitable estoppel, or that he who has acness. See Corey v. Sherman, supra. Its ar- cepted the benefits of a transaction must ac ticles clearly provide that it is to do business cept its burdens. The law expressly enjoinunder section 1160 of the Code, and, if it did ed the officers of the insurance company from not do so, the promoters thereof are not lia- receiving premiums, and it prohibited the ble as partners. They took the necessary making of just such contracts as the one in steps to incorporate, and, if the officers or suit. Surely, the members of the society who directors thereafter proceeded to do an ille- were bound to each other by mutual pledges gal business, they may be individually liable should not be held to respond to appellee for for the wrong done, but the other members the amount of his loss. The order disallow of the corporation will not be held liable as ing appellant's claim was clearly right, and it partners. These propositions are elementary, is affirmed. and require no citation of authorities in their support. See, as sustaining our conclusions on the whole case, Rockhold v. Society (Ill. Sup.) 21 N. E. 794; Rockhold v. Association

BOLTZ v. TOWN OF SULLIVAV. (III. Sup.) 19 N. E. 710; Pittsburg, C. & St. (Supreme Court of Wisconsin. Jan. 10, 1899.) L. Ry. Co. v. Keokuk & H. Bridge Co., 9 Sup. HIGHWAYS-Defects – KNOWLEDGE OF Towy Or. Ct. 770; Miller v. Insurance Co. (Tenn. Sup.)


-READING LAW TO JURY. 21 S. W. 39; O'Neil v. Insurance Co. (Wis.)

While a person in the exercise of ordinary 38 N. W. 345; Eddy v. Insurance Co. (Mich.)

care was driving on a public highway, riding in 40 N. W. 775; Lucas v. Transfer Co., 70 Iowa, a road cart drawn by a single borse, the horse, 541, 30 N. W. 771.

in order to avoid a mud puddle, or for some othThe case differs essentially from Beach v.

er reason, suddenly swerved to the right-hand Wakefield (Iowa) 76 N. W. 688. In that case

path, causing the right wheel of the road cart to

track outside the traveled part of the way a few the corporation had power to make contracts inches, and strike a stump which had there es

was so located as regards the traveled track and of such a character as to constitute an actionable defect in the highway, and whether the town officers were chargeable with knowledge of its existence. There was evidence tending to show that the stump was five to six inches from the right wheel track, was eight inches high, and seven to eight inches in diameter, and there were indications that it bad been run over by wagon wheels before. There was evidence tending to show that there was a mudhole in the road near the stump and that about as the horse arrived at the place of the accident he swerved to the right to avoid the mudhole, thereby running the right wheel out of the wheel track a sufficient distance to strike the stump. There were some rulings on request to instruct the jury, and some exceptions taken to refusals to instruct. On the argument plaintiff's counsel was permitted, against objection by defendant's counsel, to read a portion of the opinion of this court in Wheeler v. Town of Westport, 30 Wis. 392. The verdict was for plaintiff, which defendant's counsel moved the court to vacate as unsupported by the evidence. The motion was denied and due exception was taken to the ruling. The appeal is from the judgment rendered on the verdict in plaintiff's favor.

Harlow Pease, for appellant. R. B. Kirkland, for respondent.

isted since the original construction of the road. Held:

1. The following instruction to the jury was proper: "If the town officers knew, or by the exercise of ordinary diligence ought to have known, that the stump existed so near the traveled track as to render the highway dangerously defective for the use of travelers in the exercise of ordinary care, and plaintiff in the exercise of such care drove against it and was injured, the town is liable."

2. The character of the defect and the length of time it had existed were entirely immaterial except as clearly covered by the instruction.

3. The defect having existed from the time of the original preparation of the highway for public use, the town was bound to have known of its existence. Proof of notice to the town officers was not required.

4. The defect not being so far outside the traveled track that a traveler would have been obliged to have actually left such track in order to have reached it, it could not be said as a matter of law that it did not render the highway actionably defective.

5. The following instruction was proper: “You are allowed to give such damages for bodily pain and mental anxiety as you believe the plaintiff is justly entitled to recover," in connection with the instruction that, “The damages should be no greater and no less than you believe from the testimony the plaintiff is entitled to receive.” the idea being that the assessment of damages should be made solely upon the testimony produced on the trial.

6. The mere accidental deviation from the traveled way, by the swerving of the horse to one side of such way to avoid a mud puddle, or deviation because of the natural inclination of the horse to travel in one of the foot puths instead of on the crown of the road, thereby causing the wheels to run outside the track for a few inches, does not come within the rule that if a person, for his own convenience and without cause, drive outside the way prepared for trav. el, and thereby reach an obstruction in the road and receive an injury, the municipality is not liable.

7. It is improper for counsel in a case to read law or other books to a jury, and a trial judge ought firmly to prohibit it; but if he fail to do so, the error must be regarded as harmless unless it clearly appear that the objecting party was prejudiced thereby.

(Syllabus by the Judge.)

Appeal from circuit court, Jefferson county; John R. Bennett, Judge.

Action by Eliza Boltz against the town of Sullivan. Judgment for plaintiff. Defendant appeals. Affirmed.

Action to recover compensation for personal injuries. The evidence, following the allegations of the complaint, showed that plaintiff while traveling on a road in the daytime, in a roadcart drawn by one horse driven by her son, was thrown from the seat upon the dashboard and the left wheel, and seriously injured by reason of the right wheel of the roadcart striking a small stump that was concealed in the weeds a short distance outside of the right-hand wheel track. The road was an ordinary country turnpike. The tree was cut before the grading was done, and the stump, by the grading, was partially buried beneath the surface. The weeds grew up around it along the side of the road so that it was not readily observable by a traveler circumstanced as plaintiff was. The controverted questions of fact on the trial were whether the stump

MARSHALL, J. (after stating the facts). The jury was instructed in substance that, if the town officers knew, or by the exercise of ordinary diligence might have known, that the stump existed so near the traveled track as to render the highway dangerously defective for the use of travelers in the exercise of ordinary care, and plaintiff in the exercise of ordinary care drove against it and was injured, the town is liable. That appears to be faultless, but appellant's counsel complains of it, because it ignored the character of the defect and the length of time it may have existed, relying upon some language used in the opinion in Cooper v. City of Milwaukee, 97 Wis. 458, 72 N. W. 1130. The point there considered was whether the court erred in instructing the jury to answer in the affirmative an interrogatory as to whether the officers of a municipality were guilty of negligence in respect to failing to repair the alleged defect, “if the sidewalk at the point in question was defective, and the jury finds the city officers knew or ought to have known in the exercise of proper care of the existence of such defective condition, in the absence of evidence tending to show that any steps were ever taken to remedy it." Following that is language in the opinion which the learned counsel here seeks to apply to his situation, and not without some reason. The following is the language: “This instruction was given without respect to the length of time the defect had existed, or its character." Following that are observations quite likely to

mislead, at least unless viewed in the light | proposition of law, so the similar charge was of the precise point decided. They were in Duncan v. City of Philadelphia, so is the based on Duncan v. City of Philadelphia, 173 charge here. Pa. St. 550, 34 Atl. 235, where the detect was The jury were instructed as follows: "You in the cover of a coal hole, and of such a are allowed to give such damages for bodily character that it was not discoverable with- pain and mental anxiety as you believe the out taking off the cover to examine it. The plaintiff is justly entitled to recover." It is trial court refused to instruct the jury that said that left on the minds of the jury the the public officers could not be charged with impression that they could determine the fact implied notice of a defect merely from its without the aid of evidence. That criticism existence if it was not discoverable without is certainly not warranted in view of the fact removing and examining objects apparently, that the language is followed immediately properly in place, but did charge the jury by the following: “The damages should be that the defendant could not be held &ction- no greater and no less than you really believe ably negligent unless the officers knew of the from the testimony the plaintiff is entitled to defect or it had existed so long that the city receive.” That was a plain, clear statement would or should know it. The court on ap- to the jury that they could award such dampeal said, the defendant had a right on re- ages for the elements mentioned as they bequest being made therefor, to have the char- lieved the plaintiff was justly entitled to reacter of the defect pointed out, requisite to ceive, determining the same, however, solely charge public officers with notice of its ex- upon the testimony produced on the trial. istence. Thus viewing the court's language It is said the verdict should have been set with reference to the ruling condemned, that aside as contrary to the evidence, because the defendant had a right to have the jury in- there was no evidence whatever to charge the structed that the existence of a defect not officers of the town with notice of the defect discoverable by observation without disturb- if there were one. The statutory liability for ing objects apparently, properly in place, is injuries to persons caused by the insufficiency not sufficient to charge public officers with of a high way, under section 1339, Rev. St., knowledge of it, the same rule is not appli- is not subject to any exception found in the cable strictly to Cooper v. City of Milwaukee, letter of it. It is held by courts that an inbecause the court was not requested to qualify jury caused by the concurrence of a defect in the general instruction, which, as said in the highway and contributory negligence of Duncan v. City of Philadelphia, was good the injured person, cannot be attributed with as far as it went. It was a correct state- reasonable certainty to either element of neg. ment of the law and there was no error mere- ligence, therefore that the principle of conly because it did not state qualifications or tributory negligence precludes a recovery in limitations, there being no request for more an action for damages caused by the insuffiexplicit instructions. Weisenberg v. City of ciency of a highway, the same as in any other Appleton, 26 Wis. 56; Austin v. Moe, 68 Wis. case of the concurrence of two responsible 458, 32 N. W. 760; McCormick v. Louden, 64 causes; one negligence of a wrongdoer and Minn. 509, 67 N. W. 366; Hanson v. Gaar, the other of the injured person. That is beScott & Co. (Minn.) 70 N. W. 853. The in- cause the exception is a rule of the common struction to the jury in Cooper v. City of Mil- law and not clearly obviated by the statute. waukee, was correct. It was not intended Again, by equitable construction, going back to be condemned as an erroneous statement so far in this state that it is now as much a of the law. The difficulty was that there part of the statute as if expressed therein as was no evidence in the case, either of actual a qualification of it, notice, either actual or knowledge of the defect complained of, or constructive, of an insufficiency happening aftdefects that could reasonably have been ex- er the construction of a highway, is necessary pected to have conveyed knowledge to the to fix upon the municipality liability for perpublic officers. The instruction was given as sonal injuries caused thereby. The requisite if there was evidence to which it could ap- of notice has no application, however, to deply, as stated earlier in the same paragraph fects in the original construction of a highin these words: "There was no evidence to way or to defects open and discoverable with indicate any defect or tending to show that ordinary care, in the original preparation of the cover was out of its socket for a sufficient the road for public use. Ward v. Town of length of time to have enabled the proper Jefferson, 24 Wis. 342; Elliott. Roads & S. officers of the city to have discovered its con- 641. Hence the circumstances as to the chardition and replaced it." It was want of evi- acter of the insufficiency, and the time when dence that the assignment of error under it was created, in this case do not fall within discussion turned on, and anything said in the the exception to the statute. If it was an acopinion which may be construed as condemn- tionable defect, then clearly, from the eviing the charge referred to therein, except for dence, it was a defect in the original preparawant of evidence to render it proper and tion of the road for use, and therefore atwhich led counsel for appellant to cite the tributable to the town officers themselves, so case as condemnatory of the charge under there was no question of notice in the case discussion here, was not so intended by the for submission to the jury. court. The charge was right as an abstract But it is said a town is not obliged to keep

the whole width of the highway in a safe condition for public travel; that if it prepare a sufficient space for that purpose its duty is fully performed, and if even the road be too narrow, yet the traveler leave the traveled track without cause and thereby reach a defect and receive injury thereby, the town is not liable. That is good law but does not appear to apply to this case. The stump was so near the traveled track that it was not necessary for the vehicle to really leave the road or course of travel in order to reach it, therefore it was at least a question for the jury to say whether the defect was actionable or not by reason of its being sufficiently near the traveled track to render the use of the space prepared for travel dangerous for persons using the same in the exercise of ordipary care. Gorr v. Mittlestaedt, 96 Wis. 296, 71 N. W. 656. The evidence strongly tends to show that the defect was so near the wheel track that a mere shying of the horse or his swerving to one side for an instant, or traveling on one side as a single horse is quite liable to do, and at least without negligence on the part of the driver as a matter of law, was liable to cause the wheel to strike it with dangerous results to the occupants of the vehicle. The evidence tends to show that such was the way in which the accident happened. The trial court could not say as a matter of law that the case was within the rule that where a person voluntarily diverges from the traveled track without reasonable cause he assumes the risk of his conduct. There is evidence here that the horse suddenly shied or swerved to the right-hand side of the road in order to avoid a mudhole and thereby ran the right wheel a few inches outside of the wheel track and against the stump.

What has been said covers all the assignments of error made by appellant's counsel, except that the court permitted plaintiff's counsel to read to the jury an extract from the opinion of Chief Justice Dixon in Wheeler v. Town of Westport, 30 Wis. 392. That was objected to and the court, after ruling that it was improper, said, in effect, that the reading might proceed as a part of the argument of plaintiff's counsel, but at his peril. We should say here in passing, with due respect for the learned judge who presided at the trial, that for the instant be hardly met with proper judicial firmness the situation presented. The reading proposed was not proper. The court appreciated that fact and so ruled, and then laid aside for the moment that judicial order which should at all times govern a trial, and informed counsel that he might put error into the record if he chose but must take the consequences. It is permissible and excusable for courts to err if done honestly and inadvertently. All do it, none are infallible; but duty to litigants and the careful administration of the law are inconsistent with knowingly permitting, against proper objections, improper conduct on a trial at any point, even if the trespasser upon the rules be willing to

take his chances on the result in his favor being disturbed because of such conduct.

The reading of legal opinions or the law as laid down by text-writers, or reading from other books or papers, for the purpose of influencing a jury in a case on trial is generally held to be improper. Facts are to be established by evidence given in court from the mouths of witnesses, or depositions taken out of court, or papers and records and things properly produced. The law applicable to the case is to be pronounced by the trial court upon the bench. The arguments of counsel to the jury are to be confined to reasoning, and the drawing of deductions from the evidence in the light of the law as counsel assumes the court will pronounce it. In that light he is to reason from the evidence as to the facts which, to his mind, such evidence establishes, and which the jury should say it establishes. The following authorities may be referred to, among the numerous decisions of courts on the subject of reading from law books and the decisions of courts, or other books, to juries: Baker v. City of Madi. son, 62 Wis. 137, 22 N. W. 141, 583; Mullen v. Reinig, 72 Wis. 388, 39 N. W. 861; Boyle V. State, 57 Wis. 472, 15 N. W. 827; Ashworth v. Kittridge, 12 Cush. 193; Fraser v. Jennison, 42 Mich. 206, 3 N. W. 882; Com. v. Sturtivant, 117 Mass. 122; Com. v. Brown, 121 Mass. 69; Whiton v. Insurance Co., 109 Mass. 24; Huffman v. Click, 77 N. C. 55; Gregory's Adm'r v. Railroad Co., 37 W. Va. 606, 16 S. E. 819; Railway Co. v. Wesch (Tex. Civ. App.) 21 S. W. 62; Steffenson v. Railway Co., 48 Minn, 285, 51 N. W. 610; Railway Co. v. King, 88 Ga. 443, 14 S. E. 708; Williams v. Railway Co., 126 N. Y. 96, 26 N. E. 1048; Humbarger v. Carey (Ind. Sup.) 44 N. E. 302; Stratton v. Dole (Neb.) 63 N. W. 875; Telegraph Co. v. Teague (Tex. Civ App.) 27 S. W. 958; Publishing Co. v. Mc Donald, 11 C. C. A. 155, 63 Fed. 238; Dilling ham v. Wood (Tex, Civ. App.) 27 S. W. 1074; Wolf v. Shannon, 50 Ill. App. 396; Edwards v. Common Council of Village of Three Riv. ers, 96 Mich. 625, 55 N. W. 1003.

It will be seen by an examination of the cases cited that while the reading of law to a jury is generally condemned, it is generally held not reversible error unless the jury be thereby prejudiced, or it appear clearly that such was probably the effect. That is obviously the rule that should govern here in view of section 2829, Rev. St., which provides that the court shall in every stage of an action disregard any error or defect in the pleadings or proceedings which shall not affect a substantial right of the adverse party, and no judgment shall be reversed or affected by reason of such error or defect. The significance of that provision has often been referred to be this court. Dixon, C. J., in Decker v. Trilling, 24 Wis. 610, observed that it is a beneficent statute and cures a multitude of errors, as numerous cases in which it has been acted upon by this court WENTWORTH V. RACINE COUNTY. (Supreme Court of Wisconsin. Jan. 10, 1899.)

APPEAL-FindingS. Findings that are not excepted to are verities in the case.

On motion for rehearing. Mandate modified.

For former opinion, see 74 N. W. 551.

will show; and in Pooler v. State, 97 Wis. 627-638, 73 N. W. 336, it was remarked that the intent of the statute should always be recognized and given its legitimate effect to the end that justice be made certain and speedy instead of being unnecessarily delayed and made burdensome to parties by disturbing judgments, where a complaining party has in no way been prejudiced as to any substantial right.

Looking at what counsel for respondent read to the jury, which is the subject of the assignment of error, we are unable to see clearly how appellant could have been prej. udiced thereby. There was first a correct statement of the legal test of liability for negligence, which was followed by a substantially correct quotation from the statute as to the liability of towns to persons injured while traveling on public ways, if injured by the insufficiency thereof; then a correct statement of the duty of towns to make and keep their highways reasonably safe, and that a bighway is not sufficient if not reasonably safe; then followed an accurate quotation from Chief Justice Dixon's language in the Westport Case as to conditions, naming them, which may render a highway insufficient under some circumstances and not under others, closing with the words: “It is with respect to conditions and considerations like these, and others which will readily suggest themselves, that highways are stated to be safe and sufficient, or unsafe and insufficient, according to circumstances." If the counsel had argued that, as a matter of common sense and common knowledge, the considerations named were the proper tests of the sufficiency of a highway, and put the statement of the law on counsel's assumption as to its correctness, and as to what the court would instruct the jury from the bench, and made his deductions from all the evidence from premises thus stated, it would not be claimed, we apprehend, that such conduct constituted reversible error if error at all. The mere fact that the same language was used by quoting from a legal opinion cannot be said to so far change the situation as to constitute prejudicial or reversible error, inasmuch as all that was said, if stated as the language of the counsel, legitimately applied to the case. By this we by no means approve the proceeding of the trial court. We disapprove of it, yet it is one of many matters liable to occur in trials, which, though out of harmony with correct methods, do not warrant punishing parties by reversing their judgments. This court can go no further in such situations than to express disapproval and hold the error harmless, leaving trial courts to make their own standard of strictness as to the observation of settled rules and methods of procedure in conducting trials, so long as no substantial right of a complaining party be injuriously affected thereby.

The judgment of the circuit court is affirmed.

PER CURIAM. A motion for rehearing is made by respondent in this action for the purpose only of obtaining a modification of the mandate so that it shall provide for the entry of a judgment in respondent's favor for $83.22 which he claims he is entitled to recover, even conceding that the statute in question be valid. Examination of two of the findings of fact made by the circuit court, and not excepted to by the appellant, shows that the respondent is correct in his contention. By the fourth finding of fact it appears that the county board disallowed a gross sum of $514.22 of the respondent's bill, and by the seventh finding it is found that the correct amount of the disallowance, as shown by examination of the itemized bill, and conceding that the general principle upon which they acted was correct, was $431, and no more; evidently meaning that, if the rates fixed by the resolution of the supervisors be applied to the items of respondent's bill, the gross amount disallowed should have been only $131, instead of $514.22. As said before, these findings are not excepted to, and hence are verities in the case. It is proper to say that no mention was made of this fact either in the printed briefs or upon the argument of the case, but the efforts of counsel were concentrated upon the consideration of the validity of the law and the resolution of the board alone, and hence the facts herein stated naturally escaped notice. The mandate of the court will be modified so as to read as follows: "Judgment of the circuit court reversed, and cause remanded, with directions to render judgment for respondent for $83.22.” In all other respects the motion for rehearing must be overruled, without costs. It is so ordered.

HUNT v. MILLER et al. (Supreme Court of Wisconsin. Jan. 10, 1899.) COMPLAINT-DEMURRER-SEAL-DISCRETION Tax

DEED. 1. For purposes of demurrer, the copy of complaint served on defendant, and not the original on file, will be considered.

2. A complaint on a tax deed, alleging that it was executed by the county clerk pursuant to law, and setting out a copy reciting. “I, county clerk, have executed this deed, and affixed the seal of the board of supervisors,” followed by his signature, with the word "[Seal],' sufficiently shows that the proper seal was affixed.

3. A complaint on a tax deed, to bar former owners, is not demurrable because stating a gross sum paid for taxes on the several parcels

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