Guile v. La Crosse Gas & Electric Co.

145 Wis. 157 | Wis. | 1911

Lead Opinion

The following opinion was filed February 21, 1911:

Siebeckeh, J.

The finding of the jury that the explosion was caused by an electric spark is assailed by appellant as an impossibility under the evidentiary facts of the case, and it is argued that if it be assumed that the explosion could have been caused by such an electric spark then the verdict cannot stand because plaintiff’s evidence on this subject is inherently improbable and is impeached by the physical and undisputed facts in the ease, and it therefore can furnish m> basis for an inference that the explosion was caused in this way. The argument is that the impossibility of an explosion by an electric spark is established because it appears without dispute that the electric light wires within the purifying room were dead, that is that they were not charged with electricity. This is claimed on the ground that the evidence of the defendant’s officers and employees showed that no electric current could reach these wires except by a connection made through the switch on the outside of the building, and that it conclusively appeared that the current had been switched off at that point by Mr. Speering early in the evening; that it appeared that no one turned it on before the explosion occurred; and tbat tbe darkness of tbe ceiling and pit lights within tbe room up to tbe time tbe plaintiff entered it to seal tbe purifying box with water establishes tbat there was no current on these wires. The evidence on which the appellant relies is, however, contradicted by the facts as testified to by the plaintiff, which tend to show that when he turned the key of the lamp at the wall near the purifying box there was an instantaneous flash and explosion and an immediate collapse of the building. It appears that if an electric spark was emitted from the socket of a lamp' like the one in use at this place it was likely to ignite the gas as mixed with air in the room as a result of the blowout.

It is furthermore contended that the evidentiary facts conclusively show that the center lights in this room were intact and would have lighted the room if the outside switch had been turned on, and that the evidence indisputably establishes the fact that these lights were not lighted when the plaintiff entered the room and attempted to turn on the gauge light. True, the witnesses stated that the purifying room was dark. There is also evidence that the room was darkened from the blowout; that there was steam and vapor in the air of the room; that there was no special notice taken of the lights by the witnesses, but that they could see the boxes and where to pour the water to seal the box. This state of the evidence presented an issue of fact as to whether or not the lights were in fact lighted, and whether or not the wires were charged’ with an electric current. The inferences on this subject were for the jury and the questions were properly submitted to them for determination. Hence we cannot disturb the rulings of the trial court to this effect.

The contention is made that the court should have held as matter of law that the explosion was caused by a lighted torch carried by the plaintiff. The evidence material to this point is conflicting and contradictory, as is shown by the foregoing statement, and presented a question of inferences therefrom which could only be drawn by a jury and was therefore properly submitted to them. The evidence sustaining the jury’s findings on these questions is not of the kind that deals merely in conjecture or bare possibilities, but is'direct and positive on the subjects, and from it the jury had the right to infer that the explosion was caused by an electric spark emitted from the socket when the plaintiff attempted to light the gauge lamp.

The jury found that the lighting equipment of the purifying room did emit a spark, that it caused the explosion, and that the appliance, under the facts and circumstances, was not a reasonably safe one for the use of the plaintiff in the performance of his duties. This conclusion appellant does not specifically assail in argument, otherwise than under the foregoing head to the effect that the evidence is insufficient to show that the explosion was caused by a spark. It appears that blowouts frequently occurred in the purifying house and that the air would thereby become charged with gas, creating a highly explosive mixture which a spark could readily ignite, and that such a combination of conditions was known to be very dangerous to persons’ safety, in and about the purifying room. It is not disputed but that such an appliance was likely to emit a spark when the current was broken. In the light of these facts it was for the jury to determine whether the electric light appliance, as installed in the purifying house, was, under the circumstances, a reasonably safe equipment in this room. Their verdict on this subject must be accepted in the case as establishing that the defendant did not furnish a reasonably safe equipment for the protection of the plaintiff and others who were engaged to perform services in this room.

The finding of the jury is that within a year after plaintiff’s injuries the defendant’s officers represented to him that an insurance company was bound to pay him his damages re-suiting from sucb injury and tbat tbey would enforce sucb claim for him; tbat tbe plaintiff bad reasonable cause to believe from sucb representations tbat be was excused from serving a notice of injury and for damages witbin tbe year from tbe time of accident in order to preserve bis right to enforce any claim for damages against tbe defendant; and tbat tbe plaintiff failed to serve sucb a notice witbin tbe year because be relied on sucb representations of tbe defendant’s officers. It is urged tbat tbe evidence does not sustain these findings of tbe jury. An examination of tbe evidence has convinced us tbat these findings of fact are sustained by 'the evidence of tbe plaintiff and bis daughter. It was peculiarly witbin tbe province of tbe jury to determine what representations, if any, were made by tbe defendant’s officers in this respect, in view of tbe sharp conflict between- tbe witnesses testifying on this subject. In resolving these issues of fact tbe jury accepted tbe evidence of tbe plaintiff and bis daughter as to what was stated by these officers. Their evidence amply justifies these findings, as incorporated in tbe special verdict on this branch of tbe case, and tbey must be treated as verities in tbe case.

Upon tbe verdict tbe circuit court held tbat tbe defendant was estopped from relying on sec. 4222, Stats. (1898). Subd. 5 of this section provides tbat in actions of this class, notice in writing, properly signed, shall be served on tbe party alleged to have caused tbe damage, “stating tbe time and place where sucb damage occurred, a brief description of tbe injuries, tbe manner in which tbey were received and tbe grounds upon which claim is made and tbat satisfaction is claimed, . . .” and tbat sucb notice shall not be deemed insufficient or invalid on account of inaccuracies or failure as to these requirements if it appears tbat tbe claimant did not intend to mislead tbe other party and did not in fact mislead bim. The court considered tbat tbe conduct of tbe defendant’s officers, as found by the jury, was naturally calculated to justify tbe plaintiff in remaining inactive in the matter. In this conclusion, as to the effect of such conduct, we concur.

We are brought to the vital question raised by the appeal, namely: Can an estoppel in pais arise out of such oral statements and constitute a bar to prevent the defendant from invoking the provisions of subd. 5, sec. 4222, Stats. (1898) ? The section is a part of the statutes of limitation. In a former decision of this court (Arp v. Allis-Chalmers Co. 130 Wis. 454, 110 N. W. 386) it was declared in respect to this statute that:

“The clause in question is a statute of limitations. [Citing.] True, its operation is somewhat different from the operation of other statutes of limitation in that it acts upon the time within which a preliminary notice shall be served instead of the time within which the summons shall be served, but it is none the less a limitation upon the right to maintain the action.”

In Hoffmann v. Milwaukee E. R. & L. Co. 127 Wis. 76, 80, 106 N. W. 808, the court, in dealing with the question of whether the exemption of minors from the operation of limitation statutes during minority should apply to these provisions respecting notice in personal injury cases, said:

“The disability statute plainly exempts minors' from the operation of the statute limiting the time for commencement of actions only, and has no reference to the statute providing for the service of notice. Counsel has quoted from various decisions of this court to the effect that this law requiring notice is a statute of limitation, and in the sense used by this court in Belyea v. Tomahawk P. & P. Co. 102 Wis. 301, 78 N. W. 412, and other cases, it is a statute of limitation in that it imposes a condition upon the right to maintain the action, which must be performed within one year, but is in no sense a limitation upon the time for the commencement of actions, and it is very clear that the disability statute refers ■only to limitations upon the time for the commencement of actions.”

In Malloy v. C. & N. W. R. Co. 109 Wis. 29, 85 N. W. 130, in speaking of tbe enactment of this statute of notice it is stated:

“Tbe court should also consider tbe legislative purpose, and keep steadily in view- Tbe mischief to be cured.’ [Citing.] Prior to tbe enactment of this statute a person suffering injury to bis person bad full six years to commence bis-action, and be was not required to give any notice of bis intention. Tbe necessity of notice arose from tbe fact that many claims were being prosecuted after long delays, when witnesses bad disappeared or tbe circumstances were forgotten, and tbe means of evidence bad been lost or destroyed. . . . Unquestionably, tbe legislative purpose was to require tbe injured party to inform tbe other within a reasonable time, fixed at one year, of bis intention to bold him responsible. . If be did so, then be might commence bis action any time within six years.”

Erom these cases it is apparent that this provision for notice in this statute of limitation is in its very nature different in purpose and object from tbe ordinary limitation statute fixing a time within which a person must institute an action to enforce a right. By reason of such differences their operative effect on tbe rights of persons may well demand the application of different rules of law in their interpretation and administration in order that tbe benefits they are designed to confer may be secured without inflicting any unnecessary hardships. It is asserted that our statute states what acts of a defendant will estop, him from invoking tbe prescribed statutory bar of limitations, and that tbe decisions of this court in Pietsch v. Milbrath, 123 Wis. 647, 101 N. W. 388, 102 N. W. 342, and other cases establish that a person can be estopped in no other way than that prescribed by and specified in tbe statute, and that neither accident, mistake, nor fraud can operate to relieve a party from tbe bar of tbe statute. We find no cause for deviating from tbe rules recognized in these adjudications and believe that tbe rules there declared and applied are tbe established law upon the questions there presented, and they are hereby fully approved. An examination thereof, however, discloses that this court has in no case considered and adjudged that a party could not estop himself from invoking the bar of the statute here involved, namely, the failure of the plaintiff to give notice to the defendant in a personal injury action as required by subd. 5, sec. 4222, Stats. (1898). The nature and purpose of the statute have been fully stated above, and it is apparent that these provisions of the statute differ materially in their nature, purpose, and object from the ordinary limitation statutes prescribing a fixed period within which an action must be commenced after it has accrued. The main object is to apprise the defendant of the time and place of injury^ to give a description thereof, to inform him as to how it was received, and of the demand for satisfaction of the damages. Every requirement thus imposed is of a nature which the person sought to be charged may willingly forego and therefore readily induce the injured person to believe he will forego, and thus lull him to remain inactive in the matter. Under such circumstances it has ever been deemed that equity should intervene to estop the person who by words or conduct has induced an other to refrain from doing that which he would have done, but for the action of the former, from asserting the forfeiture of the right he has so induced to the prejudice of the one who gave faith and credit to such conduct. We consider that this principle can justly be applied to parties acting within the provisions of this statute requiring notice of personal injury, and that its operation will be salutary and promotive of justice between the parties under the conditions here presented.

In its import this provision of the statute is analogous to the statutory regulation involved in Ludington v. Patton, 111 Wis. 208, 86 N. W. 571, wherein it was declared and held that the statute giving a widow a year after the petition for the probate of her husband’s will had been filed for electing to take of her husband’s estate such portion as the law provides instead of that provided in the will, is a limitation statute, which, when it runs, bars her widow’s rights beyond the power of relief by legal or equitable remedies, in the absence of fraud entitling her to relief upon the ground of equitable estoppel. It was there held that the widow should be allowed to repudiate the transaction upon discovery of the fraud which induced her not to make the election within the year, and she was given the right to prosecute the executors and trustees and to charge the property of the estate in their possession with a constructive trust for the amount she would have obtained had she made the election. The two statutes serve like purposes and can appropriately be deemed to call for a like relief therefrom in case of default of compliance therewith under the same or similar circumstances. O'Donnell v. State, 126 Wis. 599, 106 N. W. 18.

We are of the opinion that the fact that plaintiff’s failure to give the notice required was wrongfully induced by the officers of the defendant was shown by the evidence, and that under these circumstances the defendant is estopped from insisting on the plaintiff’s default as a bar to the prosecution of his action, and that the plaintiff should be permitted to proceed in the same manner as if the notice had been served as required by the statute. This conclusion, as shown above, is not to be taken as applying to parties who seek relief from the bar of the provisions of the ordinary limitation statutes providing a time within which actions must be commenced after the cause of action has accrued. It is stated in the Ludington Case, regarding the benefit of a completed period of a limitation statute within which actions must be commenced after they have accrued, that:

“Courts of equity as well as courts of law, and the legislature as well, are powerless to take that right away, as indicated by this court in Van Steenwyck v. Washburn, 59 Wis. 483, 17 N. W. 289.”

The court properly awarded judgment on the verdict.

By the Court. — Judgment affirmed.

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Dissenting Opinion

The following opinion was filed March 14, 1911:

Maeshall, J.

(dissenting). I cannot concur in the result in this case, nor in the reasoning upon which it is based. I am unable to find satisfactory evidence that the explosion was caused from turning on the electric light in the.purifying room. At best.there is the merest conjecture on that point. So the finding that it was so caused violates the rule that he who charges an injury to want of ordinary care ■on the part 'of- another must prove to a reasonable certainty how the accident occurred and that such want of ordinary ■care proximately caused it.

Further, on the same subject, it seems that common knowledge condemns as wrong the idea that a spark was emitted at the switch of the electric’ light, as respondent turned it. There could not possibly have been a spark by merely turning the switch into contact. Only by turning the switch by the ■contact point so as to break after closing the circuit, could a spark have been made. If the current was on at all, the contact was not broken after having been made, for, in that ■event, the making and breaking were so near together that the light would not have shown appreciably. Respondent said there was a flash, then an explosion. If there were the two ■occurrences with an appreciable interval between so as to enable him to remember one separately from the other, the flash was from the incandescence of the filament in the electric lamp. No flash could possibly have been observed from a mere spark at the point of contact in the switch. . That was inclosed. If a spark was generated there it was in a substantially tightly inclosed small space. It could not have escaped to attract observation, or, except by merest conjecture, have caused an explosion. If respondent saw a flash and then heard an explosion, and the turning on of the light made the flash, which seems out of all reason, unless the flash was from the incandescence of the filament as aforesaid, the flash could not bave caused tbe explosion. That and tbe cause of it must bave been simultaneous.

But, if we were to concede turning tbe switch to bave caused a spark in some way, wbicb no one can explain with reasonable clearness, and that tbe spark generated in tbe socket caused tbe explosion, yet what reason is there for saying tbe purifying room was not reasonably safe? Actionable negligence is based on failure to exercise ordinary care— such care as tbe great mass of mankind exercise under tbe same or similar circumstances. That seems to bave been ignored in this case, and tbe jury allowed to efficiently say tbe purifying room was not reasonably safe, merely because they believed tbe turning on oí tbe electric light was an event liable to occur and that it caused tbe explosion. They set up their own standard instead of finding tbe fact by tbe legal standard. There is no room in tbe evidence, so far as I can see, for even a suspicion that tbe purifying room was not up' to tbe ordinary standard of safety. It was common to bave some way of furnishing light in the room when necessary. That is evident. The inclosed electric light was tbe safest that could bave been thought of. It was armed with an outside switch so tbe current could be turned off outside tbe building, tbe contact then made at tbe lamp, and tbe current then turned on, avoiding any possibility of causing a spark of fire by closing and breaking tbe current in tbe purifying room. How then can it be said appellant wronged respondent by not providing a reasonably safe purifying room? I am satisfied from tbe record that tbe jury did not and could not, reasonably, bave found tbe room not to be as safe as such rooms are ordinarily made. They simply concluded there was an explosion; that it was caused by tbe electric light and so was not reasonably safe. Tbe court plainly instructed that if tbe purifying room was up to tbe ordinary standard of safety that was sufficient. Tbe jury must bave ignored that. If there is any evidence in tbe record to show that it was not as safe as common, I am unable to find it. Hy brethren do not point to any.

Now a word respecting the statute of limitations. It is ■conceded that the law requiring notice of an injury to be served within a given time in order to preserve the right to maintain a cause of action for it, is a statute of limitations. It has long been so classed without a suggestion, heretofore, that the ordinary principles applicable to such statutes do not apply. It is conceded that there is, in general, no way under our system of avoiding a limitation statute on the ground of ■estoppel in pais; that after the expiration of the statutory period bearing on a cause of action, the claim or demand is as though it had never been; that it is to be regarded as having been extinguished by the statute, leaving no relief whatever from such situation. Pietsch v. Milbrath, 123 Wis. 647, 101 N. W. 388, 102 N. W. 342. Not only is one right extinguished but a new one is created, which, like any other, is within constitutional guarantees against impairment. That is the settled policy of this state. The court recognizes it in the opinion and does not, in general, intend to vary it or cast doubt on its wisdom.

In view of the foregoing, it seems somewhat strange that an important principle of public policy should, at this late •day, be discovered to be subject to an exception which will save the cause of respondent. The importance of certainty in our law cannot be overestimated. Unless statutes to .vitalize a single policy are uniformly construed most prejudicial confusion will result. The maxim well applies, Ubi jus incertwm, ibi nullum.

The saying is, that bad cases make bad law and so it seems sometimes. No disrespect at this point to my brethren. What looks like bad law to some may well look like good law to another, and what looks like bad law upon one occasion is liable to take on a different aspect later on, and vice versa. Hence tbe reason that persons in high stations charged with the duty of jointly declaring and applying the law should avoid the slightest semblance of want of fairness to the opinions of each other.

Dealing with the very statute in question, the court, in Hoffmann v. Milwaukee E. R. & L. Co. 127 Wis. 76, 106 N. W. 808, where the right of an infant was involved, and it was insisted that the law should be construed as excepting such during the period of their minority, the reply of the court was: “No exception is made in favor of minors in this statute and none can be engrafted upon it by the courts.” That case and others give such statute all the characteristics and effects of statutes of limitations in general, as to which neither fraud, ignorance, nor disability, other than the statute expressly specifies, applies to prevent its running to effect or prevents its being pleaded with effect after having run. That is plainly the doctrine of Pietsch v. Milbraih, supra,, which has been firmly entrenched in our policy. It has become a rule of property. It is the better rule if it is good policy to have limitation statutes at all. It is well supported elsewhere, though, true, it is not the universal rule. This court in speaking of it in State v. C. & N. W. R. Co. 132 Wis. 345, 112 N. W. 515, said:

“The presence of fraud in no instance postpones the running of the statute from the time the cause of action accrued, save the specified exception in subd. 7, sec. 4222, Stats. (1898), for relief on the ground of fraud in cases which before February 28, 1857, were cognizable solely by courts of ■chancery.”

Again in Uhlenberg v. Milwaukee G. L. Co. 138 Wis. 148, 119 N. W. 810, the foregoing unbending unexceptional character was treated as the absolute essential of the statute. It was emphatically referred to, it being said in effect that there is no way of escape from its full effect so long as it remained on the statute books unchanged by the lawmaking power.

The only justification for tbe exception wbicb the court now makes to the principle so firmly established, is that the reason for the particular statute is different from that of statutes in general; but the logic of that to my mind is infirm and obviously so. The reason for statutes of limitations j common to all, is phrased in 25 Oyc. 983, thus:

“The object ... is to suppress fraudulent and stale claims from springing up at great distances of time and surprising the parties or their representatives when all the proper vouchers and evidences are lost or the facts have become obscure from the lapse of time or the defective memory or death or removal of witnesses.”

Singulkrly enough the .language in Malloy v. C. & N. W. R. Co. 109 Wis. 29, 85 N. W. 130, used to show that the statute in question was intended by the legislature as a statute of limitations because the thought was to cure the species of mischief at which statutes of limitations in general are aimed, is taken hold of now to show that such reason, while leaving the statute one of limitations, is to be regarded as taking it out of the most dominant principle of all statutes of the kind. That is to say, the reason which the court assigned in the beginning for holding the legislature intended the statute to be, in principle, a statute of limitations is leaned on now for support in taking it out of the essential principle thereof. It seems to me that if such statutes, of which there are many, are to vary in principle according to particular classes of situations they are designed to reach, — instead of being dominated by one principle, — are to be subject to such exceptions as the court in its wisdom may conclude to be equitable, — great confusion will result and the court will really usurp the functions of the legislature. When the reason for a particular act, and acts of the same general character, is the same they should have a common effect. That is but another way of stating an old maxim in the law, Ubi lex est specialis, et ratio ejus generalise generalitur accipienda est.

The idea of tbe last foregoing is this: The characteristics of a statute of limitations having been fixed in this state many years prior to the enactment of the one in question, it must be presumed that it was the policy of the lawmaking power to incorporate such characteristics therein. It should be regarded so incorporated as plainly as if plainly expressed in words. The statute is not one of limitations merely because this court named it such. It is such because the legislature made it so and, of course, did it in view of established principles.

So I cannot see any logic in the judgment from which I dissent, in the court’s suggestion that:

“By reason of such differences [differences which, as we have seen, do not exist in fact] their operative effect on the rights of persons may well demand the application of different rules of law in their interpretation and administration in order that the benefits they are designed to confer may be secured without inflicting any unnecessary hardships.”

I cannot agree that the court can properly recast a law enacted within an established principle to minimize its effect according to judicial notions of equity giving “different operative effects on the rights of persons” of different acts, dominated by one broad policy. If a law is obscure it may be construed to effect the discovered intent, if after all such intent can be found expressed. If it be not obscure the court cannot interpret and administer in the manner stated without invading the legislative domain.

I cannot well leave discussion of the case without calling attention to the, seemingly, plain illegitimate use of Ludington v. Patton, 111 Wis. 208, 86 N. W. 571, — moreover of the language suggestive of having been substantially taken from the decision in that case, indicating that the effect of a statute of limitation, in general, may be obviated by equitable estoppel. Such language unconsciously perverted what was there decided, most harmfully.

It is agreed, I am sure, as to what bas been the law of this state. The court has declared it in the cases I have cited and they are approved in the opinion of the court now, and understandingly, I have no doubt. Yet the purport of Ludington v. Patton, supra, is given an unwarranted cast apparently in conflict with Pietsch v. Milbrath, 123 Wis. 647, 101 N. W. 388, 102 N. W. 342, which is cited and approved. I am afraid the court’s opinion will be read as approving a principle in the latter and justifying a departure from it by quoting, in a misleading way, from the decision in the former ; not only creating an apparent conflict, where none exists in fact, but with seeming unconsciousness of the inconsistency. I most fully acquit my brethren of so intending while, necessarily, taking the liberty to respectfully state the situation as it appears to me and as I think it will appear to the bench and bar, and also to my brethren themselves, on more careful study of the matter. The fact is, as I must say, Pietsch v. Milbrath and Ludington v. Patton are in perfect harmony and I think the perverted use of the latter case in the way it appears is a clear oversight.

This is the court’s language, referring to the Ludington Case:

“Wherein it was held and declared that the statute giving a widow a year after the petition for probate of her husband’s will had been filed for electing to take of her husband’s estate such portion as the law provides instead of that provided in the will, is a limitation statute, which, when it runs, bars her widow’s rights beyond the power of relief by legal or equitable remedies, in the absence of fraud entitling her to relief upon the ground of equitable estoppel

That language is wholly a new expression. The original does not convey the idea suggested of it, and I venture to say the court does not think otherwise and that it was used without carefully studying the logic of the decision.

Here is tbe language of tbe case:

“It must be admitted that such statute should be given tbe same force and effect as any other statute of limitations.” (Note tbe care to repudiate tbe idea that any different effect can be given to such statute than any other.) “There are no two rules governing such statutes. Equity deals tbe same with one as with another. It must be held, when fully run in a given case, to have absolutely extinguished the right upon which it has operated, and created in those in whose favor it has run a new right of equal dignity, as regards legal and equitable cognizance, with the one displaced by law.”

Can anything be plainer ? The court thus closed the discussion :

“Such being the case, the statute in question must be enforced to its full effect, the same as any other limitation act, regardless of the hardship thereby inflicted in any particular case, unless circumstances exist precluding its being insisted upon under the doctrine of equitable estoppel

Thus it will be seen words carefully used to, for the time, save a question, have been inadvertently turned into language in the court’s opinion now, in effect, suggesting that such question was raised and decided contrary to the spirit of all which preceded it and all which followed it in that and subsequent cases. It will be easily seen that “unless circumstances exist precluding its being insisted upon under the doctrine of equitable estoppel” conveys a very different idea than “in the absence of fraud entitling her to relief upon the ground of equitable estoppel.” We hardly need suggest, in passing, that even the question raised, as we have seen, was soon after decided against there being any way of escape from the statute on the ground of equitable estoppel and that has been affirmed and re-affirmed and is now again re-affirmed with an exception to fit the particular situation, and similar situations in the future, overturning the doctrine of all the eases that, as said in the Ludington Gase: “There are no two rules governing sucb cases.” I cannot look at tbe matter differently, but hope I state it respectfully.

I should further remark as to the Ludington Caso, after language quoted practically closing the branch of the case to which it appertained, that the rest of the opinion strongly suggests the impossibility of any defense of estoppel against a limitation statute. The recovery was based on the theory of giving full effect to the statute and holding the defendants liable as trastees for the property they acquired title to through their fraud. They were her confidential advisers and trustees, legally and morally, from the start. They took advantage of their positions, dealing with her, ostensibly, in her interest, but, actually, to obtain an advantage for themselves and those they represented. In that situation, while the statute was regarded as giving them title, the general principles of equity were held to give them the status of trustees for the one they had wronged with obligation to account to the amount of their enrichment through fraud.

So it will be seen how very far the Ludington Oase is from the facts of this case. Here there was no trust obligation. Appellant had no property of respondent obtained through fraud or otherwise. This was not even an action for damages on the ground of fraud or to enforce a trust created by fraud, even if, in any event, such an action would lie on the facts here. So in any view the sole authority cited by my brethren in support of the decision from which I dissent is entirely foreign to it.