State ex rel. Board of Trustees v. Oshkosh, 166 Wis. 391. VINJE, J. (dissenting). I am unable to concur in the conclusion of the court that fees taxed for services of police officers belong to the police pension fund. The reasons for such nonconcurrence, stated briefly and without argument, are these: Police officers of Oshkosh are paid a salary. Such salary is compensation in full for all services under the employment for which legal compensation can be exacted. The fees taxed belong to the city by virtue of the provisions of sec. 9, ch. 24, Laws 1895, and sec. 925-71, Stats. 1915, which so expressly provide. They do not belong and are not paid to the police department or to any member thereof. It is not reasonable to suppose that the legislature intended to repeal the statutory provisions relative to the ownership of such fees by the use of the word "fees" in sec. 925-52m, especially in view of the proviso in sec. 925-52v that secs. 925-52h to 925-52v, inclusive, shall in no way affect or apply to the provisions of any act or law in reference to another department of a city to which the police pension fund act applies. Yet the court's construction of the term "fees" implies such repeal. Repeals by implication are not favored. The word "fees" in sec. 925-52m is subject to the maxim Noscitur a sociis and means a tip or gratuity,--an ordinary use of the term (see Webster, Internat. Dict.), and does not mean a legal charge. This is made clear by reference to the firemen's statute, using the identical language and passed at the same time. Firemen receive no fees in the legal acceptation of the term. They are paid a salary. Sec. 1989, Stats. 1915. Hence in that statute the word "fees" must mean a gratuity, gift, or tip. It should receive the same construction in the statute under consideration. Then some reason would appear for the use of the language in sec. 925-52m providing that the rewards, fees, gifts, or emoluments therein referred to shall be paid into the police fund "except when allowed to be retained by said member by resolution of said boards." Why the board of trustees should be given the Casson v. Schoenfeld, 166 Wis. 401. power to determine whether legal fees for services rendered by officers paid a fixed salary shall be allowed to be retained by such officers or paid into the pension fund is not obvious. Such fees by force of statute belong to the city, as stated above. But under the interpretation put upon the word "fees" by the court, the board of trustees may deprive the police pension fund as well as the city of every cent of such revenue. It permits police officers to receive a fixed salary and in addition thereto fees for services rendered by themdouble compensation. I do not believe the legislature contemplated or intended such a result. By construing the word "fees" to mean a gift or gratuity these anomalous results vanish and the act becomes a rational one. MARSHALL, J. I concur in the foregoing opinion of Mr. Justice VINJE. CASSON, Administrator, Respondent, vs. SCHOENFELD and another, Appellants. November 13, 1917-January 5, 1918. Deceit: Exchange of properties induced by false representations: Special verdict: Sufficiency: Contracts: Mental incompetency of party: Fraud: Evidence: Witnesses: Competency: Transactions with decedent: Husband and wife: Physicians and surgeons: Disclosure of information: Public officials: Waiver of privilege: Expert testimony: Appeal: Prejudicial errors. 1. The special verdict in this case, on its face, is held sufficient to warrant a judgment against one of the defendants, but not the other, on the ground that by false representations, made by said first mentioned defendant, as to the character and value of land in North Dakota plaintiff's intestate was induced, to his damage, to transfer a stock of goods to said defendant in exchange for said land. 2. Persons who knew or ought to have known that another was so mentally deranged as to be incompetent to transact business VOL. 166-26 Casson v. Schoenfeld, 166 Wis. 401. and, taking advantage of such incompetency, induced him to make an exchange of properties to his injury, were guilty of a fraud and are liable to respond therefor in damages. 3. The question being whether plaintiff's intestate was mentally incompetent to transact business at the time he made an exchange of properties, members of his family were not incompetent, under sec. 4069, Stats., to testify to conduct on his part, prior to the exchange, from which an inference that he was deranged might well be drawn, where the matters of observation so testified to were wholly unparticipated in and uninfluenced by them; nor did such testimony by the wife violate sec. 4072, where nothing in the nature of a confidential communication was disclosed. 4. But the testimony above mentioned would not be admissible upon the question whether defendants (who negotiated the exchange) knew or ought to have known of the decedent's mental condition, without proof that the facts so testified to were known to defendants or were of such a nature that they must have been known to them. 5. A public official who, as a physician or surgeon, acquires information concerning a patient committed to his care or to him for examination in order that he may be able to determine what treatment should be had or whether any treatment is possible tending to cure or benefit that patient, may not, under sec. 4075, Stats., be permitted to give such information to any one unless by consent of the patient; and the fact that a public record is required to be kept by such physician or the institution with which he is connected does not affect the rule. 6. The provision of the statute prohibiting disclosure of such information can be waived by the patient only, and not by any one after his death. 7. The error, in this case, of permitting the examining physician at the state hospital for the insane to testify as to results of his personal examination of plaintiff's decedent at the time of his commitment to said hospital, is held to have been prejudicial to defendants, since it must have had great weight with the jury in determining the questions as to the nature and extent of decedent's mental incompetency and whether defendants ought to have known thereof, and also the question whether the decedent relied upon any false representations which defendants might be found to have made in the negotiations for exchange of properties. 8. It was error, also, to permit physicians to testify in effect, in reply to hypothetical questions, that in their judgment persons of ordinary intelligence and prudence, situated as the defendants Casson v. Schoenfeld, 166 Wis. 401. were, should have known that the decedent was mentally incompetent to transact business. 9. What impression a given state of facts would make upon the ordinary individual is a question to be answered by the jury, and is not a proper subject for expert testimony. APPEALS from a judgment of the circuit court for Iowa County: GEORGE CLEMENTSON, Circuit Judge. Reversed. Action to recover damages alleged to have been sustained by plaintiff's decedent by reason of fraudulent representations, made by defendants, whereby said decedent was induced to exchange a stock of goods for 480 acres of land in Mercer county, North Dakota, at a time when, it is alleged, he was of unsound mind and incompetent to transact business. One Max Brickman, now deceased, and for whose estate the plaintiff was appointed special administrator after the commencement of the action, conducted a general store at Linden, Wisconsin. The defendant Schoenfeld was a minister at Dodgeville, Wisconsin, dealing to some extent in real estate also, particularly lands in North Dakota, and at the time in question had an option or right to sell a farm of 480 acres in Mercer county in that state, owned by one Stewart. The defendant Elliott was a merchant at Richland Center, Wisconsin, and engaged in selling real estate, and owned another 480 acres in Billings county, North Dakota, about seventy miles from the tract in Mercer county. Elliott met Brickman through one Sullivan, a real-estate agent living at Lone Rock, Wisconsin, and a meeting was had between Elliott and Brickman at Linden to discuss a trade of the North Dakota land for Brickman's store. Elliott knew that defendant Schoenfeld had this option on the Mercer county lands at the time. An arrangement was made between Elliott and Brickman whereby Sullivan was to accompany Brickman to inspect lands in Dakota proposed to be traded, and on September 20th, while on the way and at Madison, they met defendant Schoenfeld, who was then intending to Casson v. Schoenfeld, 166 Wis. 401. visit other lands in North Dakota than either of these two tracts. It was then arranged that Schoenfeld should accompany Brickman instead of Sullivan. It was understood as between the two defendants that in case Brickman was not satisfied with the Billings county land belonging to Elliott the tract in Mercer county might be used for the purpose of an exchange. Schoenfeld and Brickman went to Hebron, North Dakota, and at that place Schoenfeld had one Barker take Brickman to see the land in Mercer county at a distance from Hebron of about forty miles, and on this trip Brickman did not see the Billings county land owned by Elliott. Schoenfeld and Brickman were on the train together on their return trip, which was about September 25th. On the return a written contract was made, which was not produced by either party on the trial, and dated September 26th, purporting to be between Elliott and Brickman, for the exchange of the store property at Linden for the farm in Mercer county. There is a dispute between the parties as to whether this contract was written out by Schoenfeld at Madison on the way back or at the Brickman store in Linden one or two days after such return. On October 8th the parties again met, and it is uncontradicted that a further written agreement was made out by Schoenfeld and signed by Brickman and Elliott, arranging for the taking of an invoice of the stock of goods at the Linden store, and such invoice was taken, and there is no dispute as to the amount thereof, and such amount was the basis for the judgment for damages entered by the court upon the special verdict. The material parts of the special verdict of thirteen questions were: that before the transfer was made Elliott told Brickman that the 480 acres of land Elliott owned in North Dakota was worth at least $25 an acre, was black loam soil and free from stone; that such representations induced Brickman to go to North Dakota with defendant Schoenfeld to |