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where a rule of law constituting certain evidence a prima facie case is of real advantage. With such a construction the amendment would not have changed the result of the Thompson Case, and we may well believe that the purpose of the legislature was to prevent such a recur


It is clear to our minds that the legislature intended to define what should constitute a transfer in contemplation of death. It was the legislative purpose to make the statute effective. It realized that if a person, after reaching the age of eighty or ninety years, could dispose of his property free from the tax, it could be easily evaded by those possessing the larger fortunes. So it was enacted not only that the tax should

-intent of statuteabsolute tax.

apply to gifts made in contemplation of death, but to gifts made within six years prior to death.

It is said that the legislature cannot declare a gift to be in contemplation of death when it in fact is not so. It is admitted, however, that the legislature may tax gifts inter vivos. Whether these gifts, therefore, be held to be gifts in contemplation of death or gifts inter vivos, they are not beyond the power of the legislature to tax. If they be considered gifts inter vivos, there is abundant justification for the classification here made in segregating them from other gifts inter vivos as objects of taxation; the basis for such classification being the purpose

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to make the law, is recognized that in in contemplation of within specified death, effective. It taxing gifts made enacting a police regulation it may be found necessary to include within the purview of the statute certain acts, innocent, and not in themselves a subject of police regulation where the inclusion of such acts is necessary, in the opinion of the legislature, to make the police regulation effective. Pennell v. State, 141 Wis. 35, 123 N. W. 115. While a principle

relating to police regulation does not necessarily apply to the power of taxation, no reason is perceived why the legislature may not, as here, make a classification of gifts inter vivos and subject them to taxation for the purpose of making effective taxation of gifts causa mortis. That it will occasionally result in the taxation of gifts not in fact made in contemplation of death, which may be conceded, should not condemn the classification, if the classification be reasonably neces sary to carry out the legislative scheme for the taxation of gifts causa mortis. Nor should it be condemned because there is no material distinction between those who fall immediately upon one side of the line and those who fall immediately upon the other, as illustrated by the fact that a gift one day less than six years prior to death is taxable, while a gift made one day more than six years prior to death is not taxable. That is always the case where the classification is, of necessity, fixed by an arbitrary line of demarcation. As said in State v. Evans, 130 Wis. 381, 110 N. W. 241: "Neither need we be disturbed by the fact that the line of demarcation between the classes is arbitrary. Wherever there is a sliding scale of age, popu lation, dimension, distance, or other characteristic, which is believed to justify classification, necessarily the

division between classes must be ar bitrary, and legislation is not to be declared void which adopts the age of twenty-one as marking the right to vote or manage property, because the individual at twenty years and eleven months may be as competent as at twenty-one, nor, in a law distinguishing by population, because no appreciable difference can be conceived between the town of 999 and the town of 1,000, provided, generally, the class of those under twentyone years of age is less competent to vote or manage property than the class of mankind above that age, or the class of towns which does not include villages of 1,000 population are

(Wis., 172 N. W. 734.)

generally less in need of the governmental powers conferred upon villages than the class of towns which does contain villages of 1,000 and upward."

The next question is whether these gifts, or any of them, constitute a material part of the donor's estates. Obviously the law would be easier of administration if it were more definite in fixing the character or size of gifts to be deemed to have been made in contemplation of death. Whether that is practicable or possible we do not suggest. The use of the word "material" does not make the law impossible of administration. Whether à gift constitutes a material part of a donor's estate is left a judicial question. As the legislature has not attempted to define with exactness what shall be considered a material part of an estate, neither shall we. That question must be left to be determined in each case as it arises.


In this case

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Constitutionality, construction, and effect of legislative definition of gift or transfer in "contemplation of death."

Statutes taxing transfers or gifts "in contemplation of death" have been quite generally enacted. What is a transfer or gift "in contemplation of death" is a question to be decided in the individual case, and there are of the many judicial definitions

phrase, under the ordinary form of statutes. Statutes like that involved in the reported case (RE EBELING, ante, 1519), in which the legislature has defined the expression, “in contemplation of death," have not been before the courts in many instances. The Indiana statute referred to in Ind. App. Conway v. State (1918) 120 N. E. 717, provides that "any conveyance, gift, or transfer made within two years of the death of any decedent without consideration save and except love and affection, shall

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be conclusively presumed to have been made in contemplation of death." Laws 1917, chap. 118, § 1, clause 4. No question as to this statute, however, was involved in that case.

The Nevada act provides that "the words, 'contemplation of death,' as used in this act, shall be taken to include that expectancy of death which actuates the mind of a person on the execution of his will, and in no wise shall said words be limited and restricted to that expectancy of death which actuates the mind of a person in making a gift causa mortis." This definition of the words, "contemplation of death," is referred to in Cole v. Nickel (1919) Nev., 177 Pac. 409, but its construction and effect are not involved in that case. W. A. E.




Wisconsin Supreme Court - May 27, 1919.

- Wis. 172 N. W. 785.)

Physician- liability for ordering hot iron for patient.

1. A physician who has performed an operation upon a patient, who is unconscious, is not negligent in ordering the patient's attendant to keep her warm by placing hot irons in bed with her, so as to render him liable. in case the patient is burned by the negligent use of the iron. [See note on this question beginning on page 1527.]

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APPEAL by plaintiff from an order of the Circuit Court for Milwaukee County (Fairchild, J.) reversing a judgment of the Civil Court in his favor in an action brought to recover damages for loss of his wife's consortium, alleged to have been caused by defendant's negligence. Affirmed. Statement by Kerwin, J.:

This action was brought by the appellant, Joseph Malkowski, to recover damages for loss of his wife's consortium, occasioned by the alleged negligence of the respondent, a physician.

The action was brought in the civil court for Milwaukee county, and the jury returned a verdict in favor of the plaintiff, and assessed his damages at $300. Judgment was rendered on the verdict in favor of the plaintiff for $300 damages and costs. Upon appeal from the civil to the circuit court, on motion, and without any new trial in the circuit court, the judgment of

the civil court was reversed, and judgment entered in respondent's favor, dismissing the appellant's complaint upon the merits, and granting respondent costs in the sum of $88.44 against appellant, from which judgment this appeal was taken.

Messrs. Nohl & Nohl, for appellant: The injuries sustained were caused by the negligence of defendant.

Hrubes v. Faber, 163 Wis. 89, 157 N. W. 519; Adams v. University Hospital, 122 Mo. App. 675, 99 S. W. 453; Fawcett v. Ryder, 23 N. D. 20, 135 N. W. 800, 3 N. C. C. A. 153.

There should be no reversal and a new trial in the circuit court, "except

(- Wis. - 172 N. W. 785.)

when substantial justice cannot otherwise be done and the rights of the parties cannot otherwise be preserved."

Hanna v. Chicago, M. & St. P. R. Co. 156 Wis. 626, 146 N. W. 878.

If a new trial is ordered, it should be had in the circuit court.

Toledo Computing Scale Co. v. Polanis, 157 Wis. 312, 147 N. W. 632.

In cases of reversal of judgments of the civil court, only motion costs should be allowed in circuit court.

Winternitz v. Schmidt, 161 Wis. 421, 154 N. W. 626; Concrete Steel Co. v. Illinois Surety Co. 163 Wis. 41, 157 N. W. 543.

Messrs. Joseph G. Hirschberg and Horace B. Walmsley, for respondent.

The person sought to be held liable should have anticipated within the limits of the doctrine of proximate cause, that is, as an ordinarily prudent and intelligent person, that some injury to someone might naturally and probably result from his act. And whenever there is no evidence to support this essential factor of reasonable anticipation, there can be no recovery.

Dougan v. Champlain Transp. Co. 56 N. Y. 1; South Side Pass. R. Co. v. Trick, 117 Pa. 390, 2 Am. St. Rep. 672, 11 Atl. 629; Hanson v. Superior Mfg. Co. 136 Wis. 617, 118 N. W. 180; Sorenson v. Menasha Paper & Pulp Co. 56 Wis. 338, 14 N. W. 446; Deisenrieter v. Kraus-Merkel Malting Co. 97 Wis. 288, 72 N. W. 735; Hasbrouck v. Armour & Co. 139 Wis. 357, 23 L.R.A. (N.S.) 876, 121 N. W. 157, 21 Am. Neg. Rep. 430; Armour & Co. v. Harcrow, 133 C. C. A. 218, 217 Fed. 224, 7 N. C. C. A. 325; Barton v. Pepin County Agri. Soc. 83 Wis. 19, 52 N. W. 1129; Wolosek v. Chicago & M. Electric R. Co. 158 Wis. 477, 149 N. W. 201.

Defendant could not be held liable for the acts of a mere volunteer, and if the negligence was that of some person to whom the husband had, for the time being, intrusted the care of his wife, then the husband cannot recover.

Kuchler v. Milwaukee Electric R. & Light Co. 157 Wis. 107, 146 N. W. 1133, Ann. Cas. 1916A, 891.

The finding that the patient was burned by the piece of iron was a pure conjecture. And a verdict cannot be

founded on conjecture.

Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729, 5 Am. Neg. Rep. 268; Sorenson v. Menasha Paper & Pulp Co. 56 Wis. 338, 14 N. W. 446; Smith v. Chicago, M. & St. P. R. Co. 42 Wis. 520; Schell v. Chicago & N. W. R. Co. 134

Wis. 142, 113 N. W. 657; Chybowski v. Bucyrus Co. 127 Wis. 332, 7 L.R.A. (N.S.) 357, 106 N. W. 833; Grossenbach v. Milwaukee, 65 Wis. 31, 56 Am. Rep. 614, 26 N. W. 182; Musbach v. Wisconsin Chair Co. 108 Wis. 57, 84 N. W. 36; Hart v. Neillsville, 141 Wis. 3, 135 Am. St. Rep. 17, 123 N. W. 125; James v. Carson, 94 Wis. 632, 69 N. W. 1004.

No verdict can be permitted to stand which fails to give full effect to an established physical fact. For a physical fact in any case cannot be overridden or disregarded or set aside by the verdict of a jury.

Montanye v. Northern Electrical Mfg. Co. 127 Wis. 22, 105 N. W. 1043; Barlow v. Foster, 149 Wis. 613, 136 N. W. 822; Hayman v. Milwaukee Bridge Co. 127 Wis. 550, 106 N. W. 1081, 7 Ann. Cas. 458; White v. Minneapolis, St. P. & S. Ste. M. R. Co. 147 Wis. 141, 133 N. W. 148; Gardner v. Chicago & M. E. R. Co. 164 Wis. 541, 159 N. W. 1066; Marchand v. Bellin, 158 Wis. 187, 147 N. W. 1033.

Kerwin, J., delivered the opinion of the court:

The main question is whether the evidence was sufficient to support the verdict in the civil court, finding the defendant negligent.

In considering the evidence in this case we are mindful of the established rule that if there is any credible evidence to support the verdict it cannot be disturbed.

The defendant denied practically all the material evidence relied upon by plaintiff. So we shall treat the appellant's evidence as undisputed, since, if it is sufficient to support the verdict, the judgment appealed from must be reversed.

The defendant was called to perform an operation on plaintiff's wife, and did so while Mrs. Malkowski was under the influence of an anesthetic, and after the operation placed her in bed while she was unconscious. At the time of the operation, one Mrs. Lenga was in the employ of plaintiff, or his wife, to take care of plaintiff's children, and at the request of defendant placed a hot stove lid in the bed to warm it, which, it is claimed, burned Mrs. Malkowski's feet. Mrs. Lenga was a married woman

twenty-five years of age, had two children, was related to plaintiff, and was an intelligent, competent person, but had had no experience

as a nurse.

After the operation was performed Mrs. Malkowski remained unconscious for about four hours, and the claim of plaintiff is that her feet were burned during that time by the stove lid placed in the bed by Mrs. Lenga, and that the defendant was negligent in telling Mrs. Lenga to put the lid, which was too hot, in the bed with Mrs. Malkowski.

The evidence shows that after the operation defendant suggested that something hot be placed in the bed where Mrs. Malkowski was, to warm it, for the purpose of relieving the patient from the shock of the operation.

The court below, in reversing the judgment of the civil court, filed an opinion, in which he gives the material evidence of Mrs. Lenga as follows:


Well, the doctor told me to get something hot, to put that in the bed, and I asked him if the irons would do, and he told me, "Well, put anything, as long as it is hot." The doctor went into the other room, and he was dressing up. got some newspaper, and put the lid in the paper, and folded it up, and picked it up, went to the other lady, who was right in the kitchen, told her the doctor told me to put something hot, and I told her that she should feel it. "What do I know about it?" she says; "ask the doctor." I then turned and carried it over to the doctor, who was in the sitting room and was dressing. waited until he pulled on his coat. I didn't wait long, just held it up to him, and he felt, and I asked him if that was all right, and he says, "Yes, that is all right; put that in;" and I says, "Where?" and he says, "In the bed, at her feet." The first iron I put by her feet.


Q. What did you do with the first iron?

A. The first iron I put by her feet.

Q. You carried it in and put it by her feet?

A. By her feet.

Q. Yes; and you agreed with Dr. Graham that it was nice and warm, didn't you?

A. How?

Q. And you agreed with Dr. Graham that it was just the right temperature?

A. I don't understand the first. Q. That it was not too hot? A. Why, sure; he told me it was all right, so I put it in.

Q. You knew it was all right too, didn't you?

A. Well, I wasn't sure, because I asked him if it was all right.

Q. You didn't tell him it was very hot, did you?

A. Why, I didn't say anything. I just says, if that is all right, that he should feel the iron, and he said it was all right.

Q. And then you put it in at her feet?

A. Yes, sir. Well, I asked him where to put the iron, and he says: "Put it around by her feet."


There is no evidence in the record that defendant told Mrs. Lenga to put the irons on the feet of the patient. Giving the evidence the most favorable construction for the appel- burning lant, it is that de- patient-who fendant told Mrs. Lenga to place the irons in the bed at or around the patient's feet, not upon her feet.


Moreover, Mrs. Lenga was as competent to judge whether the iron was hot enough to burn as was defendant, and was as competent to know that, if it was hot enough to burn, it should not be placed on the patient's feet. Defendant had a right to rely upon Mrs. Lenga's knowledge, and believe that she would not so place the iron as to burn the patient. Whether the iron was hot enough to burn was within the common knowledge of any person of the intelligence and experiof Mrs. Lenga. The negligence, if any, upon the undisputed evidence, was the negligence of


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