*1 96 Hoeschler, 271 in Leuchtenberg words

following 151, 158, 758: 72 N. W. filed de- had been case affidavit

“If in instant raised counsel, that an issue was fendant, one of his stating offer in the the alteration when Evenson made as to the time cross- at the trial to intended and that defendant purchase, am- to the hereinbefore-quoted with respect examine plaintiff examination, it him in his adverse answer biguous given to have denied of the trial court have been the duty would for summary judgment.” application plaintiffs the motion of Kenneth Gross before us record Upon have been granted. should summary judgment motion of the de- the Court.-—-The order By denying The affirmed. Izóla for summary judgment fendant Gross Kenneth Gross motion of the defendant order denying reversed, cause remanded for summary judgment said motion. enter an order granting directions took no J., part. Hallows, Foods, Inc., vs. Appellant, Metz, Respondent. 6,May

April *2 there was a brief and oral For the appellant argument L. Curran of Medford. Clifford Smith, Okoneski, a brief For the Wausau, & Nikolay, Puchner & Tinkham Jensen Medford, Richard Tinkham and oral P. argument by Scott of Jensen. and Corliss V. cor- consider that the learned trial court

BROWN, J. *3 of the demurrer to the defense waiver overruled rectly' a of of because the was director risk purchaser assumption of con- If is in fact corporation. plaintiff guilty defendant that in the use of defendant’s product tributory negligence not we his but such defense defeat claim may agree of defendant’s that he was one merely established by proof directors. defense is that

The other affirmative plaintiff’s agreement, aris- from liability harmless in all respects to hold defendant cause any defeats from the use of defendant’s products, ing have. The court of action which otherwise plaintiff might if therefore this to be proved, determined defense good, it. to overruled demurrer plaintiff’s error. consider this was Stats., provides: 94.72 (14) (b), Sec. firm, association, manufacturer, jobber, importer, “Any sell, offer, or for sale expose who shall person

corporation, sub- adulterated any feeds mixed or any or distribute the health livestock or to of injurious stance or substances . .” a misdemeanor. . be of guilty shall deemed poultry The defendant was defendant in present Arndt Brothers Fur Foods Minkery (1957), 274 Wis.

N. In W. 776. that action (2d) we held that when adulter- ated feed is sold sec. 94.72 (14) (b), violated. In this we followed our decision in McAleavy v. Lowe (1951), 463, 477, 259 Wis. 49 N. W. we McAleavy also held that:

“. . . who anyone violated such statute would be held guilty per se in a civil action for negligence The damages. harsh result of the case could have been avoided if had inserted the word legislature in 'knowingly’ enactment, statute at time of but this the legislature did not see fit to do.”

While we infer that the might exculpatory agreement now in question defendant’s method of the Mc- escaping result Aleavy event it made another sale of mink food substance, adulterated with a there is no need poisonous inference because defendant’s brief tells us that is exactly The brief purpose says: business, “The hazards of the mink-feed possibility botulinic toxin in beyond ‘without fault’ feed seller, of, not defendant required control detectable risk that it assume the sell who only buyers agreed and bear the burden of loss themselves.” that: declared, correctly,

The trial think learned court we *4 that, con- “The cases are uniform because of the social involved, siderations whereby agrees agreements employee to waive all claims his for which injuries against employer future, in out his be sustained the of arising employ- might ment, are agree- are void as So too against policy. public the in with the connection ments affecting general public an in- has too statute. The public great safe-place general statute, through terest in the enforcement of the safe-place reason sustained by for of prosecution recovery damages statute, allow such claims to be such of a violation of claims An agreement waiving waived by prior agreement. in be sustained the or which injuries might for damages is or building’ in a of employment’ ‘public future ‘place the a member of general akin to agreements whereby closely claims for negligence to waive damages public agrees carriers, utilities, like. These common and the against public been condemned in every jurisdic- latter have agreements tion.”

But then the court continued: not a business wherein the seller “The sale of mink food is service. A interest is with charged duty public public involved, nor is not does the interest public require per- i.e., formance of a the sale of mink food free duty, private from contamination.” in are not able to follow the court this distinction.

We feed, forbade the sale of adulterated When legislature a criminal of the forbidden act to be declared performance in the sub- interest public offense and imposed penalty, declared. We may agree is manifest and ject public policy his client intended no wrong counsel for of all itself if precau- to protect spite was only trying But the statute its tions adulterations into product. crept if he exercises is not excused that a seller so drawn of adulter- care if he is or extraordinary ignorant ordinary absolutely is an act pro- ation in the feed he sells. His sale se. per negligence hibited and violation of prohibition void the makes which consider that the principle to, referred just in the examples exculpatory agreements transaction court, instant to the the trial applies as cited by and penalized. sale both prohibited in which the Zaksaska Chapman submits that Respondent 537, sustains the validity 76 N. W. (2d) 273 Wis. a second-hand auto- There a seller of zero, as sec. back not turn speedometer mobile did

101 218.01 him (7a) (a), to do. required Violation of is, terms, the statute its misdemeanor. The buyer kept the car but did not for it pay and the trial court held that he need not do so. This was on the that the violation theory rendered void the contract to pay. We reversed.

Present concludes that the reversal re- there us to quires now that the say violation of sec. 94.72 (14) Stats., does no (b), more than to the seller the subject statute, specific of the penalties without the contract voiding in question.

The contracts in the two cases are different in purpose. Zakzaska, Chapman the contract supra, was one for the of merchandise. payment Now we have a contract de- signed avoid the of a seller’s breach consequences of the statute. We think this is a different quite matter and dis- the cases. tinguishes

We consider that the instant case is Kuhl governed by Motor Ford Co. v. Motor Co. 270 N. W. 420. The statute in question prohibited automobile manufacturer from canceling revoking cause, dealer’s franchise without just having regard to dealer’s Violation was equities. declared a misdemeanor Kuhl, the dealer penalized. made an Ford could revoke the franchise at will notice. upon sixty days’ Ford Kuhl notice and gave sixty days’ revoked franchise. an action Kuhl to restrain the brought revocation. The com- set out Ford demurred. plaint We held that the demurrer should be overruled and trial had to discover or, cancellation whether the was for cause within though terms in violation agreement, arbitrary statute.

And we said:

“If the provision agreement permitting Ford Motor to terminate the franchise Company upon sixty days’ be as advance notice is to the Ford interpreted authorizing *6 without just cancel the same to unfairly Motor Company Kuhl would be void.” then such provision provocation, Co., 500. supra, Ford Motor page Motor Co. v. in Menominee River B. what was said And we repeated 559, C. Co. v. Augustus Spies Co. L. & 1118: 132 N. W. “ for a statute or in violation of per ‘A contract made statute is void and by of an act which is formance prohibited whether there the court. This is true by will not be enforced ” a a or merely prohibition.’ a penalty prohibition Co., Kuhl Motor v. Ford Motor supra, page Co. Kuhl and the think the similarities between the Case decisive, are viz.: one a statute for In each case there was enacted plaintiff’s There a for a with violation. penalty prescribed protection, between the two which was an parties plaintiff agreement which, he for the would the redress but agreement, gave up the statute. When the seller’sbreach of have consequent upon for alleged their actions brought respective plaintiffs the agree- in reliance upon breaches the defendants demurred ments. that Kuhl’s should show Kuhl held that if we proof its contract of the statute in violation

franchise was revoked Ford as unavailable to act was void and excusing do, should, reach we action. Presently defense to Kuhl’s made in contempla- same conclusion. Metz’s agreement feed violation adulterated a sale defendant of tion of Foods as to Medford and unavailable the statute void Metz’s action. defense been should have defense this affirmative The demurrer to sustained. reversed, remanded with and cause the Court.—Order

By for further demurrer to sustain plaintiff’s directions this opinion. not inconsistent proceedings Hallows, no took J., part.

{Dissent.) dissent, Wingert, Broadfoot JJ., being that in opinion view penalties specificallyprescribed violation of sec. 94.72 even in the ab- (14) (b), fault, sence of the statute should not as be construed also to hold a violator harmless from prohibiting tort or contract liability. *7 another,

Genrich and vs. Copartners, Appellants, Foods, Inc., Respondent. 6, 1958.

April May JJ., and Wingert, dissent. Broadfoot For the there was a brief oral appellants and argument by Clifford L. Curran of Medford. Smith, Okoneski,

For the a brief Wausau, Nikolay, Puchner & Tinkham and Jensen & Medford, oral Richard P. Tinkham Scott of argument and Corliss Jensen. V. The facts set out the pleadings regarding

Brown, J. feed, mink damage the sale of adulterated poisonous mink, the feed to their who fed plaintiffs the former would use the seller that buyers between