that this statute is not unconstitutional, and mill; that said mill was 196 feet long and 60 decline to consider the question again. feet wide extending north and south; that The judgment of the district court is af- three runways extended the entire length of firmed. HAMER, J., not sitting. STREHLAU v. JOHN SCHROEDER LUMBER CO. (Supreme Court of Wisconsin. March 11, 1913.) 1. APPEAL AND Error (§ 1099*)—SUBSEQUENT APPEALS-LAW OF THE CASE. On appeal from an order of nonsuit, the law laid down by the Supreme Court in its opinion becomes the law of the case, and binds the parties and courts in all subsequent proceedings in that case, even though the court should afterwards be of opinion that it had erred. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4370-4379; Dec. Dig. § 1099.*] 2. APPEAL AND ERROR (§ 1099*)-SUBSEQUENT SUIT AND APPEAL-LAW OF THE CASE. Plaintiff sued his employer a second time on the same cause of action for negligence and failure of duty in not providing a safe place to work, resulting in his injury; the first action having resulted in a nonsuit, which was affirmed on appeal, and the Supreme Court holding that there was neither negligence nor failure of duty. Held, that in the second suit a contention that the falling "prop," by which plaintiff was injured, was part of a mechanical contrivance which defendant was bound, by statute, to make safe, was not a new fact, but merely a new argument, and would not prevent the former ruling from being conclusive. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4370-4379; Dec. Dig. 8 1099.*] Siebecker, J., dissenting. said mill, which were used in distributing large timbers, one of the said runways being at the easterly side of the mill, another at the westerly side, and the third in the middle, each of them 6 feet in width, and the middle runway being 19 feet above the ground at the place at which the plaintiff was hurt; that at the south end of the middle runway, equidistant from each side, was a gin pole, used in hoisting heavy timbers from the ground to the said runway; that the workmen engaged in the hoisting of the timber used a piece of timber 1% inches in thickness, from 6 to 8 feet long, and 6 inches in width as a prop on which each timber was laid when it reached said runway, in order to permit the loosening of the chain fastened to the middle of the timbers for the purpose of hoisting it to the runway; that while the men upon the middle runway were engaged in this work this piece of plank was in some manner pushed off the runway, and in falling struck the plaintiff upon the head, causing the injuries complained of; that these runways had been used from three to five days at the time plaintiff was injured, and all of the timbers which had been hoisted by means of said gin pole had been hauled into the mill by the plaintiff." Evidence was received supplementing the stipulated facts, and the jury rendered the following special verdict: "(1) Did ordinary care on defendant's part before plaintiff's injury require it to furnish and firmly fasten on the floor of its mill in question, near to the gin pole there being Appeal from Circuit Court, Oneida County; used, a prop (so called) similar to the prop Alex. H. Reid, Judge. here involved? Answer: Yes. Action by Herman Strehlau against the John Schroeder Lumber Company. Judgment for defendant, and plaintiff appeals. Affirmed. Action for personal injuries. A former action for the same injuries resulted in a judgment of nonsuit, which was affirmed by this court. 142 Wis. 215, 125 N. W. 429. After that affirmance this action was commenced, and the appellant's claim is that the complaint and the evidence in the present action contain additional facts which substantially differentiate the present action from the former. The facts appearing on the trial of the first action will be found very succinctly stated in the statement of facts preceding the opinion in that case, and need not be repeated here. "(2) If you answer the first question, "Yes,' then answer this: Was the failure to so furnish and fasten the prop a proximate cause of plaintiff's injury? Answer: Yes. "(3) Did the plaintiff, by a lack of ordinary care on his part, proximately contribute to produce his injury? Answer: No. "(4) In what amount has plaintiff been damaged by the injuries he received on De-. cember 15, 1908? Answer: $15,000." Upon motion the court changed the answers to questions 1 and 2 from "Yes" to "No," and entered judgment for the defendant, from which judgment this appeal is taken. Eaton & Eaton, of Oshkosh, and Frank B. Lamoreux, of Ashland, for appellant. Doe & Ballhorn, of Milwaukee, for respondent. Upon the trial of the present action, the following stipulation of facts was made at the opening of the trial: "It is stipulated WINSLOW, C. J. (after stating the facts by the attorneys for the respective parties as above). [1] The effect of the judgment to this action that the injury which plaintiff in the former action is necessarily the first sustained accrued while he was employed by question for consideration. the defendant in the construction of a saw It is familiar law that a judgment of non For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes suit, voluntary or involuntary, is not a bar to another action upon the same cause. Gummer v. Omro, 50 Wis. 247, 6 N. W. 885; Gratz v. Parker, 137 Wis. 104, 118 N. W. 637. It is also familiar law that when a case is brought to this court upon appeal from an order sustaining or overruling a demurrer the law as held by this court in its opinion becomes the law of the case, and binds the parties and the courts in all subsequent proceedings in that case, even though the court should afterwards be of opinion that the court then erred. Finney v. Guy, 111 Wis. 296, and cases cited page 299, 87 N. W. 255; Cape v. P. C. Church, 130 Wis. 174, 109 N. W. 928. If it be held by this court in such a case that the complaint fails to state a cause of action, the trial court can do nothing but sustain the demurrer when the case is remitted, no matter what new or different arguments can then be made. Id. Necessarily the plaintiff cannot better his position by allowing judgment of dismissal to be entered and commencing another action on the same cause of action, and then filing the same complaint. If he could do this, the rule would be of no practical effect. Again, when this court reverses a judgment for defendant on a nonsuit or directed verdict and holds that there was sufficient evidence to go to the jury, that holding, whether right or wrong, becomes the law of the case upon the same, or substantially the same, state of facts. Euting v. C. & N. W. Ry. Co., 120 Wis. 651, 98 N. W. 944; Herring v. Du Pont, etc., 140 N. W. 290 (present term). The principle which controls the two cases is the same, and is not only valuable, but wholesome; it tends to bring litigation to an end; it prevents the bringing of action after action for the same cause, whenever it is thought that a new argument has been discovered not brought up before. It prevents experimenting with the courts and trying cases piecemeal. A motion for a nonsuit is substantially a demurrer to the evidence, and the order of nonsuit an order sustaining that demurrer. When such an order comes here for review, the law as laid down in the opinion should in all reason be just as conclusive upon the question of the legal effect of that evidence in all future proceedings on the same cause of action as in case of a demurrer to a pleading. No logical reason for applying any different rule in the one case from that applied in the other has been suggested, nor do we think of any. A different rule would allow a plaintiff to try his theories on the court one by one, and would furnish to a litigious plaintiff the opportunity of worrying his adversary with action after action, whenever his attorney could find a new argument. [2] Upon the appeal in the former action, that the evidence then presented showed neither negligence nor failure of duty on the part of the defendant. It is true that the argument that the so-called "prop" which fell on the plaintiff was part of a hoist or mechanical contrivance, and hence that it was the absolute duty of the defendant to make it safe, under the provisions of section 1636-81 (Stats. 1911), was not then made, and the decision was made without consideration of the effect of that section upon the question of the defendant's negligence. That is, however, simply a new argument, not a new fact. It existed at the time the former action was tried, and should have been made at that time. The decision that there was no negligence forecloses all contentions of negligence which could then have been made on the same facts, whether they were in fact made or not. We come, then, to the question whether there are any additional facts in the present case which call for the application of different legal principles. The additional evidence chiefly relied on is the evidence of several carpenters and workmen, to the effect that in building operations such as those under investigation it was customary to use such a "prop" in the work of hoisting of timbers, and to spike it down to the sill or floor, instead of allowing it to remain loose. The difficulty with this evidence is that it does not appear therefrom that this was a custom of the employers, but rather that it was a custom of the employés themselves; not only that, but in the present case it appears affirmatively that a so-called "dolly," or contrivance of a different nature for receiving and moving timbers, was furnished by the master, and that the plank or "prop" in question was not ordered to be placed where it was by the foremen or any one representing the master in charge of the work. There is absolutely no evidence that it was furnished for use by the master, or even expected by him to be used in the work, either spiked or unspiked. The only other evidence tending to differentiate the case from the case before presented is the evidence of a workman named Fike, who testified that before he put his foot against the prop, in order to brace himself while hauling in a timber, it shot out and fell on the plaintiff because it was not nailed down. It is very apparent from what has been said that this additional evidence adds nothing to the case, because none of it tends to show any preach of duty on the part of the master. It appears now, as before, that "whatever the condition was it was created by acts of coemployés in the process and prosecution of the construction of the mill.” Judgment affirmed. former conclusions the law was not correctly applied to the case, and that the order of the circuit court granting a new trial must VAN DINTER v. WORDEN-ALLEN CO. (Supreme Court of Wisconsin. May 31, 1913.) 1. MASTER ANd Servant (§ 289*)—INJURIES- be affirmed. Upon the former consideration JURY QUESTION CONTRIBUTORY NEGLI GENCE. Evidence in an action for injuries to a servant by the tipping up of unfastened planks, caused by the operation of a hoisting apparatus, held to make it a jury question whether plaintiff was guilty of contributory negligence. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 289.*] 2. MASTER AND SERVANT (§ 288*)-INJURIESJURY QUESTION-ASSUMED RISK. Evidence in an action for injuries to a servant by the tipping up of unfastened planks, caused by the operation of a hoisting apparatus, held to make it a jury question whether plaintiff assumed the risk of injury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1089, 1090, 1092-1132; Dec. Dig. § 288.*] 3. APPEAL AND ERROR (§ 889*)-AMENDMENT— IMPLIED AMENDMENT. Where the court did not at the time rule on plaintiff's request that the complaint be amended to conform to the evidence, but stated that it would do so, and then submitted the issues as if the complaint were so amended, and subsequently treated the case as if the amendment were allowed, the complaint must be considered as if amended as requested to conform to the proof. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3621, 3622; Dec. Dig. § 889.*] 4. MASTER AND SERVANT (§ 297*)-ACTION FOR INJURIES-CONFLICTING FINDINGS. Barnes and Vinje, JJ., dissenting. On reargument. Former opinion reversed, and the order granting motion for a new trial affirmed. For former opinion, see 138 N. W. 1016. of the case, the court was led to a conclusion which disposed of the case upon the merits upon the ground that under the evidence it appeared, as a matter of law, that the plaintiff had assumed the risk of the hazard and for this reason he had established no cause of action. Plaintiff rests his case on the rights and liabilities as defined by section 1636-81, Stats., which provides that: "A person employing or directing another to perform labor of any kind in the erection, repairing, altering or painting of a house, building or structure shall not furnish or erect, or cause to be furnished or erected for the performance of such labor, scaffolding, hoists, stays, ladders or other mechanical contrivances, which are unsafe, unsuitable or improper, and which are not so constructed, placed and operated as to give proper protection, to the life and limb of a person so employed or engaged." The history of this law has been fully set forth in Koepp v. National Enameling & Stamping Co., 151 Wis. 302, 139 N. W. 179. That the hoist in question is one of the appliances specified in the statute cannot be questioned. It was held in the Koepp Case that the Legislature intended to make employers absolutely liable as to the safety of the employés in the situation embraced in the statute, except when the injured person assumed the risk or was guilty of contributory negligence. The court there adopted In an employe's action for injuries from the operation of a hoisting shaft, the jury found specially that it was defendant's duty to warn plaintiff of the dangerous condition of operating the hoist as it did, and also that plaintiff, in the exercise of ordinary care, should have the declaration of the court in Gombert v. known and appreciated such dangers. Held, McKay, 201 N. Y. 27, 94 N. E. 186, as exthat the findings were irreconcilably conflict-pressive of the legislative purpose which was ing, so that a new trial was properly granted. in substance that: "It, in terms, absolutely [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 1195-1198; Dec. Dig. § forbids those employers to furnish or operate, 297.*] or cause to be furnished or operated, any apparatus therein mentioned of the character and quality described by it. It, in its effect, provides that any employer who either personally, or by another, furnishes for the performance of any named labor a forbidden article shall be responsible therefor." In applying this law to the instant case it is of controlling importance to keep in mind that the defendant is forbidden to furnish a hoist which is unsafe, unsuitable, or improper, and to so place and operate it as not to afford the employé proper protection to his life and limb. The question whether the hoist was suitable, sate, and proper, and whether it was so placed and operated as to give proper protection to the employés engaged in the erection of the building, was negatived by the jury. The jury also found that plaintiff did not know and comprehend the danger of using the hoist in the condition it was, and that the plaintiff, in the exercise of ordinary care, ought to have discovered and appreciated the danger attending its use. SIEBECKER, J. The plaintiff at the time of injury was working for the defendant as a carpenter and was assisting in the construction, by defendant as independent contractor, of an addition to the power and mining company's plant at the village of Cudahy. Detailed statements of the facts of the case were made by the court and in the opinion of the dissenting justices when the case was determined on appeal by this court on December 10, 1912, to which we make reference to avoid unnecessary repetition. 138 N. W. 1016. Upon motion by the respondent a reargument of the case has been had, and upon re-examination of the questions presented we are satisfied that in our *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes court submitted this issue to the jury, and they found against the defendant on the question, and also that such failure to warn was the proximate cause of the injury. This court, as above stated, upon the orig-| for conflicting inferences. Re-examination of inal hearing of the case considered that, upon the case has convinced us that the trial the facts and circumstances shown by the court's ruling on this question was right, and evidence it must be held, as a matter of law, that our former conclusion, holding that the that the plaintiff ought, in the exercise of record shows the plaintiff assumed the risk as ordinary care, to have known and appreciated a matter of law, is erroneous. It is contended such danger, and hence he assumed the risk. that the trial court erred in submitting to There is evidence tending to show that the the jury the question whether or not defendplaintiff followed the direction given him to ant, in the exercise of ordinary care, ought tie the plank to which the hoisting tackle to have warned the plaintiff of the unsafe was attached to a joist with a rope, and that conditions under which the hoist was being he did this in a manner as directed by de-operated upon the grounds that the pleadings fendant's superintendent, and that he placed in the case presented no such issue. The the planks supporting the horse, holding the plank with tackle, as directed and as they had been placed to hoist the first joist, which was successfully accomplished. It also appears that the plaintiff had not operated this hoist before this morning and had only observed the operation of raising one joist, and that he had had no experience with a hoist like this one, though he had worked at hoists, used for this purpose, of different construction. He testified to the effect that he attempted to place the legs of the horse, supporting the hoist plank, near the joist on which the two planks supporting the horse lay or a little ahead of it, but that he did not measure it; that he intended to place it a little forward, eight inches or a foot. He also states that he thought everything was all right so long as it worked right; that he did not understand it could tip over as it did; and that he did this work and set up the hoist and fastened it as directed. The horse was supported by 3-inch 20-foot planks; the weight of the joist to be raised was estimated at from 350 to 400 pounds; there is also evidence that the men at the rope below, doing the hoisting pulled sideways instead of directly downward, and that the accident was caused by the one plank, on the side toward which this pulling was done, tilting up at the rear end, swinging around, striking the plaintiff, and knocking him off from the girder he stood on, causing him to fall to the bottom of the building. True, there is also evidence showing that the plaintiff knew how the ap-nished by the defendant was not safe as reparatus was constructed and how it was being operated; this, however, does not indisputably establish the fact that the dangers incident to operating the hoist were so open and obvious that a reasonably prudent person, under the circumstances, ought to have appreciated and observed them. [3] It appears that the plaintiff's attorneys, after the evidence had all been received, requested that the complaint be amended to conform to the evidence in this respect. The court did not then specifically rule on the matter requested, but stated that he would do so, and then proceeded to submit the issues as if the pleading were so amended, and subsequently treated the case as though the amendment were allowed. This course of procedure must be considered equivalent to allowing the amendment. It is considered that the question was properly included in the verdict. Upon this question (No. 7 of the verdict) the court instructed the jury that the employer "must warn him (plaintiff) of all dangers to which he will be exposed in the course of his employment, except those which the employé may be deemed to have foreseen as necessarily incident to his employment or which may be open and obvious to a person of his experience and understanding." By their answer the jury found it was the defendant's duty to give the plaintiff warning of the dangerous condition of operating the hoist as it did. By questions 5 and 6 of the verdict the jury found that the plaintiff, in the exercise of ordinary care, ought to have known and appreciated these dangers. The jury found that the hoist fur quired by the statute, and that such unsafe condition proximately caused the injury. These facts render the defendant liable, unless it be found that plaintiff either assumed the risk or was guilty of contributory negligence. The vital issues of fact, therefore, were whether or not the plaintiff had assumed the risk or had been guilty of contributory negligence. [1, 2] We are persuaded that the record presents a state of facts from which fairminded men may honestly draw different [4] It is clear there is an irreconcilable conclusions, and that the question of the conflict in the facts found by the jury in plaintiff's contributory negligence or his as their findings under questions 5 and 6 and sumption of the risk, under the evidence, question 7 as pointed out by the court; if is of such uncertainty as to present questions the danger was so open and obvious that for determination by the jury. This con- plaintiff ought to have appreciated it, then, clusion is supported by the trial court on its as the court instructed the jury, the defendsubmission of these issues to the jury because ant was under no obligation to warn the that reason properly awarded a new trial of | proof of payment, unless as involved in the the case. The order appealed from is affirmed. MILLER v. SLATER. (Supreme Court of Wisconsin. May 31, 1913.) 1. GIFTS (§ 18*)—GIFTS INTER VIVOS-NECESSITY OF DELIVERY. A gift inter vivos, as well as a gift causa mortis, requires a completed transfer of the subject-matter of the gift. [Ed. Note. For other cases, see Gifts, Cent. Dig. §§ 29-33; Dec. Dig. § 18.*] 2. GIFTS (§§ 18, 74*)-"GIFT INTER VIVOS"TRANSFER OF PROPERTY-"GIFT CAUSA MorTIS." To constitute a "gift inter vivos" there must be an unqualified completion and dominion in præsenti over the property by the donee, without any element, necessarily, of contemplation of death; while in the case of a "gift causa mortis" the gift may be revoked by the donor before death. [Ed. Note.-For other cases, see Gifts, Cent. Dig. §§ 29-33, 115-118; Dec. Dig. § 18, 74.* For other definitions, see Words and Phrases, vol. 4, pp. 3091-3093; vol. 8, p. 7671; vol. 4, pp. 3087-3091; vol. 8, p. 7670.] 3. BILLS AND NOTES (§ 109*)-CONSIDERATION. A note, supported by a sufficient consideration, may be conditioned upon its being extinguished by a condition subsequent, specified therein. [Ed. Note.-For other cases, see Bills and Notes, Cent. Dig. § 220; Dec. Dig. § 109.*] Appeal from Circuit Court, Richland County; George Clementson, Judge. following transaction: December 31, 1906, W. J. and his wife executed and delivered a promissory note as follows: "December 31, 1906. "Five years after date, or at my death, for value received, we promise to pay G. A. Slater, or order, at Richland Center, Wis- The note was dictated by George Richard Slater and William J. Slater and written by the latter's daughter. She had often signed her father's name and did so in his presence at his request on this occasion. Mrs. Slater signed for herself. George then said, speaking of the paper: "I want to give W. J. that amount if he survive me, because I feel that I owe it to him." No competent proof has been made of any of the other of the claims involved. Upon such facts the county judge found as matter of law that the paper showed a settlement between the parties; that the meaning of the paper is that the debt to George should be forgiven in case of predeceasing W. J., and that such stipulation entered into the consideration of the agreement and was a substantial basis to the agreement to forgive which took effect upon the contingency suggested, leaving nothing due to the estate of George. Action by Joseph G. Miller, as administrator of George Richard Slater, deceased, against Eudora Slater, as administratrix of From the county court judgment, based on W. J. Slater, deceased. From a judgment the foregoing, an appeal was taken to the for defendant, plaintiff appeals. Affirmed. circuit court, where, on evidence substantialIn due course, plaintiff, as personal repre-ly the same as indicated in the findings, parsentative of George Richard Slater, filed a ticularly that the paper was found among claim against the estate of W. J. Slater, deceased, for $2,180.85, on a promissory note, and $817, on account. Defendant, as personal representative of the estate of W. J. Slater, put in issue the claim of plaintiff and counterclaimed for $2,259.16. There was an answer, putting in issue the allegations of the counterclaim. The trial in the county court resulted in these findings: George's papers after his death and that it was never in W. J.'s possession after the date of its execution, and evidence showing, circumstantially, that the paper grew out of some sort of a settlement of several matters between the parties, the findings and conclusicns of law were affirmed and judgment was rendered accordingly. Lincoln & Brindley and Burnham & Black, all of Richland Center, for appellant. Bancroft & Johns, of Richland Center, for respondent. George Richard Slater, a single man and owner and operator of a farm in Richland county, Wisconsin, died February 5, 1911, aged 50 years and upwards. He had a brother, W. J. Slater, whose wife was Eudora MARSHALL, J. The judgment must be Slater. W. J. Slater died February 12, 1911, affirmed. The appeal does not present any aged 58 years and upwards. For some years question for consideration which warrants prior to May, 1904, the two maintained sepa- particular consideration except as to whether rate homes and properties. Therefrom, and the condition in the note, in terms extinuntil December 31, 1906, W. J. and wife guishing it in case of the payee predeceasing lived with George, W. J. assisting George his brother, was intended to take effect as a with his farm work and the former's wife gift in præsenti. That was a question of attending to the housework, the services in fact determinable by inference in the light the whole being worth $1,480. There was no of the circumstances characterizing the ori*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |