| Wis. | Sep 24, 1907
1. Tbe plaintiff moves to dismiss tbe appeal upon numerous grounds. . Tbe principal reason for tbe contention seems to be tbat tbe appeal taken in tbe name of tbe defendant and tbe undertaking given on tbat appeal were in fact taken and furnished by tbe .¿Etna Life Insurance Company of Hartford, Connecticut, and hence tbat tbe taking and prosecuting such appeal makes tbat company and its attorneys guilty of champerty and maintenance. It appears from tbe record and is conceded tbat at tbe time of tbe injuries in question tbe defendant held a policy of insurance issued by tbe said insurance company, wherein and whereby tbe defendant was, in tbe language of tbe policy, insured “against loss arising from legal liability for damages on account of bodily injury or death suffered within tbe period of this policy by any employee or employees of tbe assured resulting from any and every accident, of whatsoever nature or cause, happening in, upon or about tbe premises of tbe assured, as described in tbe schedule hereinafter given, and against tbe expense of defending any suit for such damages,” witb other stipulations therein contained. It further appears and is undisputed dbat tbe said insurance company, “having complied witb tbe laws of this state relative to casualty insurance companies,” was on March 1,
Of course, the defendant had the legal right to defend the action. The objection made by the plaintiff is that the defendant had no legal right, by the procurement of such policy, to authorize the insurance company to defend in its name. The claim is that such contract of insurance was champertous and void. “Champerty is” defined to’ be “the unlawful maintenance of a suit, in consideration of some bargain to have part of the thing in dispute, or some profit out of it.” 2 Words & Phrases, 1045, citing numerous cases.
This court has held:
. “Maintenance is an officious intermeddling in a suit that no way belongs to one, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it.” Andrews v. Thayer, 30 Wis. 228" court="Wis." date_filed="1872-06-15" href="https://app.midpage.ai/document/andrews-v-thayer-6600934?utm_source=webapp" opinion_id="6600934">30 Wis. 228, 233.
“The terms of this definition obviously do not include all kinds of aid in the prosecution of defenses of another’s cause, and it has therefore always been held not to extend to persons having an interest iu the tiring in variance, nor to persons acting in the lawful exercise of their profession as counsel or attorneys at law. Nor does the doctrine of the common law as to maintenance apply to persons who either have a legal interest in the suit prosecuted by them or who act under the bona fide belief that they have.” Davies v. Stowell, 78 Wis. 334" court="Wis." date_filed="1890-12-16" href="https://app.midpage.ai/document/davies-v-stowell-8183551?utm_source=webapp" opinion_id="8183551">78 Wis. 334, 336, 47 N. W. 370. See, also, Gilbert-Arnold L. Co. v. O’Hare, 93 Wis. 194" court="Wis." date_filed="1896-05-01" href="https://app.midpage.ai/document/gilbert-arnold-land-co-v-ohare-8185195?utm_source=webapp" opinion_id="8185195">93 Wis. 194, 200, 67 N. W. 38; Dockery v. McLellan, 93 Wis. 381" court="Wis." date_filed="1896-05-22" href="https://app.midpage.ai/document/dockery-v-mclellan-8185221?utm_source=webapp" opinion_id="8185221">93 Wis. 381, 388, 67 N. W. 733.
In view of the contract of insurance mentioned and what has been said, there can be no serious doubt but that the insurance company had a substantial interest in the controversy and in taking and prosecuting the appeal. The motion, to dismiss the appeal must be denied.
2. Seven errors are assigned for the reversal of the judgment. The first and seventh are considered together by counsel for the defendant, and are to the effect that the court erroneously refused to direct a verdict in favor of the defendant, and erroneously refused to change the answers of the jury to the second, fifth, and sixth questions from the negative to the affirmative, and the third, fourth, and seventh questions from the affirmative to the negative. The two errors so assigned are, seemingly, based upon the theory that the danger in operating the machine was open and obvious and hence was assumed by the plaintiff, and that if otherwise the plaintiff was sufficiently instructed as to the danger of getting his hand caught between the hide and the cylinder while the machine was in operation to free the defendant from the charge of negligence in that regard. The machine is described by the defendant’s counsel as being
“constructed with two A frames, the framework being of iron. As the operator faces the machine there is a cylinder*581 seventeen or eighteen inches in circumference which revolves towards him, and when in operation makes about thirty revolutions to the minute. On this cylinder there are two grooves, diametrically opposite to each other, into which the operator presses the hide. About four inches from the cylinder, as the operator faces same, is what is known as the splitting knife. This knife is bolted down to a sliding bed. In front of the knife there is a plate close up to the edge of the knife and even with it, its purpose being to prevent the operator from cutting himself when he wishes to straighten out the hide. Directly over the knife is an iron roller, which can be raised or lowered by means of a lever at the side of the machine. That part of the hide which the operator wishes to split is placed over the knife, and then the iron roller is pressed down upon it, thus holding the hide securely in place. The rest of the hide is carried over the large cylinder, which the operator faces, and hangs down in front of him. The machine is started by stepping upon and pressing down a board, which causes a lever to lift, and power is transmitted by means of levers and cogwheels. Power is transmitted from the main driving shaft by means of a belt. This belt is connected with a pulley, and on this pulley is a little pinion. The pinion drives the eylinder. In operating the machine the operator first throws the hide over the cylinder, placing that part of the hide which is to be split between the iron roller and knife, and he then, by means of a lever, presses the iron roller down upon the hide. After this is done, the operator takes hold of the skin with both hands, fingers down, and presses same into one of the grooves on the cylinder. He then steps upon the wooden treadle, and this causes the cylinder to revolve towards him, pulling the skin over the knife, and the thick head of the hide is split to the thickness of the rest of the skin. ■ The ordinary cut or split is six or seven inches. Two holds will generally pull a hide through. If the hide is a long one, the operator simply releases his hold and takes another hold, as described above. If the hide is a heavy one, so that the operator cannot hold it, he then binds the hide, and to do this he places his hand back and over the cylinder and at the side thereof, grabs the hide and draws it around the cylinder, and then steps upon the treadle, and the hide binds itself. To stop the ma-*582 dime tbe operator Has to remove bis foot from tbe treadle. Binding is necessary only in tbe case of thick bides. Ordinarily tbe operator fastens tbe skin in the groove, bolds it for a short distance, and if the bead is not split in tbe first, bold be makes another until tbe head is split.”
There is evidence tending to prove that some years prior to tbe injury the machine bad been provided with an iron treadle which bad been broken, and in its place tbe wooden treadle mentioned bad been substituted; that at the time of tbe injury tbe machine was more or less worn; that tbe bolts and boxes bad become somewhat loosened; that tbe cylinder-would move up and down, and jerked; that tbe machine at. times became “locked” — that is, continued in motion when no. weight rested on tbe treadle — and such were tbe facts at tbe time of tbe injury; that such defects were not open and obvious ; and that tbe plaintiff was not instructed nor informed as to tbe danger. Tbe plaintiff testified to tbe effect that be was at tbe time a married man twenty-five years of age, born in Slavonia, and was unable to speak English or German, and bad no experience with machinery until be began work for-tbe defendant; that after working for tbe defendant three days tbe foreman put him to work on tbe machine in question and showed him where to put tbe hide into tbe machine and then bow to step onto tbe pedal, and further did not show him anything; and that be did not understand what, tbe foreman said to him in respect to tbe work. We cannot, say, as a matter of law, that tbe findings of tbe jury mentioned are not sustained by the evidence.
3. Errors are assigned for tbe admission in evidence of' disconnected parts of tbe machine in question. Such parts, of the machine bad been brought into tbe court by tbe defendant’s superintendent, pursuant to a subpoena served upon him, and by him they were respectively identified. After tbe plaintiff’s testimony bad been put in and tbe defendant bad put in testimony covering more than forty pages of tbe-
“In determining your answer to tbe second question of tbe special verdict, I instruct you that any and all evidence upon behalf of plaintiff in respect to tbe defective condition of certain parts of tbe machine at tbe time and place in question must be absolutely disregarded by you, unless you are satisfied to a reasonable certainty not only that such defective condition actually existed at tbe time of tbe injury, but also that such defective condition was a proximate cause of tbe plaintiff’s injuries.”
We find no reversible error in tbe admission of evidence.
4. It is claimed that tbe special verdict is defective in failing to submit to tbe jury questions covering all tbe litigated issues of fact necessary to determine tbe proximate cause of ■the accident. Nó such failure is pointed out in tbe brief and we find 'none. Tbe principal grievance mentioned in tbe brief seem to be that tbe court submitted to tbe jury questions which should have been determined by tbe court as a matter of law. That is fully covered by what has- already been said. True, tbe verdict contains two findings on tbe subject of proximate cause, but tbe answers of tbe jury are not inconsistent, and tbe court charged tbe jury substantially tbe same as to both. We must bold that tbe special verdict is sufficiently broad to cover all tbe issues in tbe case.
5. Error is assigned because tbe court did not submit to tbe jury, in tbe.form requested, tbe question whether tbe plaintiff was warned of the danger on tbe evening be was injured, and whether the plaintiff ought to have understood such warning. Tbe third question of tbe special verdict submitted to tbe jury tbe question whether there was any failure on tbe part of tbe defendant to instruct the plaintiff as to tbe danger. Tbe charge of the court to tbe jury on that question was full and covered all that was so requested.
6. Error is assigned because the court refused to give the whole of an instruction requested under the eighth question submitted. The eighth question covered the plaintiff’s alleged contributory negligence. The charge of the court under that question was full and complete and covered more than a page and a half of the printed case. It is conceded that the court gave most of the instruction requested. The complaint is to the effect that the court failed to give that portion of the instruction requested which would have made it the duty of the plaintiff, in case he failed to understand the instructions given, to indicate that fact to the defendant’s foreman, and that his failure to do so was contributory negligence. Such an instruction would have made the question of the plaintiff’s contributory negligence turn upon the fact whether he did or did not so indicate his failure to understand the instructions given. The court did instruct the juhy to the effect that the defendant had the right to assume that the plaintiff would see and appreciate all dangers open and
By the Court. — The motion to dismiss the appeal is denied, with $10 costs of motion. The judgment of the circuit court is affirmed.
I think that it should be said that Roth v. S. E. Barrett Mfg. Co. 96 Wis. 615" court="Wis." date_filed="1897-06-24" href="https://app.midpage.ai/document/roth-v-s-e-barrett-manufacturing-co-8185609?utm_source=webapp" opinion_id="8185609">96 Wis. 615, 71 N.W. 1034" court="Wis." date_filed="1897-06-24" href="https://app.midpage.ai/document/randles-v-waukesha-county-8185612?utm_source=webapp" opinion_id="8185612">71 N. W. 1034; Schiefelbein v. Badger P. Co. 101 Wis. 402" court="Wis." date_filed="1898-12-16" href="https://app.midpage.ai/document/schiefelbein-v-badger-paper-co-8186105?utm_source=webapp" opinion_id="8186105">101 Wis. 402, 77 N. W. 742; Groth v. Thomann, 110 Wis. 488" court="Wis." date_filed="1901-05-21" href="https://app.midpage.ai/document/groth-v-thomann-8186991?utm_source=webapp" opinion_id="8186991">110 Wis. 488, 86 N. W. 178, and similar cases were considered as to the contention of counsel for appellant that the danger of plaintiff getting his hand caught was obvious and that hence he needed no instruction; that the opinion of the court is that the rule in such case does not apply here, because of the defect in the machine rendering it liable not to operate as designed as to stopping upon the treadle being released; that because of such fact this case falls within the doctrine of Anderson v. Chicago B. Co. 127 Wis. 273, 106 N. W. 1077.