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-intent of statute

where a rule of law constituting cer- relating to police regulation does not tain evidence a prima facie case is necessarily apply to the power of of real advantage. With such a con- taxation, no reason is perceived why struction the amendment would not the legislature may not, as here, have changed the result of the make a classification of gifts inter Thompson Case, and we may well vivos and subject them to taxabelieve that the purpose of the leg- tion for the purpose of making islature was to prevent such a recur- effective taxation of gifts causa rence.

mortis. That it will occasionally reIt is clear to our minds that the sult in the taxation of gifts not in legislature intended to define what fact made in contemplation of death, should constitute a transfer in con- which may be conceded, should not templation of death. It was the leg- condemn the classification, if the islative purpose to make the statute classification be reasonably neceseffective. It realized that if a per

sary to carry out the legislative son, after reaching the age of eighty scheme for the taxation of gifts or ninety years, could dispose of his

causa mortis. Nor should it be conproperty free from the tax, it could

demned because there is no material be easily evaded by those possessing distinction between those who fall the larger fortunes. So it was en

immediately upon one side of the acted not only that the tax should line and those who fall immediately apply to gifts made

upon the other, as illustrated by the in contemplation of

fact that a gift one day less than six absolute tax. death, but to gifts

years prior to death is taxable, while made within six years prior to

a gift made one day more than six death.

years prior to death is not taxable. It is said that the legislature can

That is always the case where the not declare a gift to be in contempla

classification is, of necessity, fixed tion of death when it in fact is not by an arbitrary line of demarcation. so. It is admitted, however, that

As said in State v. Evans, 130 Wis. the legislature may tax gifts inter

381, 110 N. W. 241: "Neither need vivos. Whether these gifts, there

we be disturbed by the fact that fore, be held to be gifts in contem

the line of demarcation between the plation of death or gifts inter vivos,

classes is arbitrary. Wherever they are not beyond the power of

there is a sliding scale of age, poputhe legislature to tax. If they be considered gifts inter vivos, there is

lation, dimension, distance, or other

characteristic, which is believed to abundant justification for the classification here made in segregating justify classification, necessarily the them from other gifts inter vivos as

division between classes must be arobjects of taxation; the basis for bitrary, and legislation is not to be such classification being the purpose

declared void which adopts the age to make the law,

of twenty-one as marking the right Constitutional

is recognized that in to vote or manage property, because in contemplation of

the individual at twenty years and within specified death, effective. It eleven months may be as competent

taxing gifts made as at twenty-one, nor, in a law disenacting a police regulation it may tinguishing by population, because be found necessary to include within no appreciable difference can be conthe purview of the statute certain ceived between the town of 999 and acts, innocent, and not in themselves the town of 1,000, provided, generala subject of police regulation where ly, the class of those under twentythe inclusion of such acts is neces- one years of age is less competent to sary, in the opinion of the legisla- vote or manage property than the ture, to make the police regulation class of mankind above that age, or effective. Pennell v. State, 141 Wis. the class of towns which does not in35, 123 N. W. 115. While a principle clude villages of 1,000 population are

law-reasonable classification tax on sitt

time of death.

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(- Wi8. -, 172 N. W. 736.) generally less in need of the govern- the estate was valued at about mental powers conferred upon vil. $330,000. We think that occasional lages than the class of towns which gifts of $500 or $1,000 made by a does contain villages of 1,000 and donor possessing such an estate upward."

should not be deemed a material part The next question is whether thereof. None of the gifts made these gifts, or any of them, consti- prior to the year 1917 exceeded tute a material part of the donor's $1,000. We hold


that such gifts are estates. Obviously the law would be easier of administration if it were not taxable. We portion of more definite in fixing the character hold that the gifts or size of gifts to be deemed to have made in 1917 of $10,000 to each of been made in contemplation of the children on June 30th; $5,318.33 death. Whether that is practicable to each on August 18th and $10,000 or possible we do not suggest. The to each on October

use of the word 1st, amounting to material portion

"material" does not more than $75,000, definiteness.

make the law im- do constitute a material part of the possible of administration. Whether estate and that they are taxable. a gift constitutes a material part of Judgment reversed, and cause rea donor's estate is left a judicial manded, with directions to reverse question. As the legislature has the judgment of the County Court, not attempted to define with ex- with directions to disallow the deactness what shall be considered duction made for the amount of the a material part of an estate, neither Federal estate tax, and to include shall we. That question must be the amount of the gifts indicated in left to be determined in each the opinion as a part of the taxable case as it arises. In this case estate.

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of estate,


Constitutionality, construction, and effect of legislative definition of gift or

transfer in "contemplation of death." Statutes taxing transfers or gifts be conclusively presumed to have been "in contemplation of death” have been made in contemplation of death." quite generally enacted. What is a Laws 1917, chap. 118, § 1, clause 4. No transfer or gift "in contemplation of question as to this statute, however, death” is a question to be decided in

was involved in that case. the individual case, and there are

The Nevada act provides that “the many judicial definitions of the

words, 'contemplation of death, as phrase, under the ordinary form of

used in this act, shall be taken to instatutes. Statutes like that involved

clude that expectancy of death which in the reported case (RE EBELING,

actuates the mind of a person on the ante, 1519), in which the legislature

execution of his will, and in no wise has defined the expression, “in con

shall said words be limited and retemplation of death," have not been before the courts in many instances.

stricted to that expectancy of death

which actuates the mind of a person The Indiana statute referred to in Conway v. State (1918) - Ind. App.

in making a gift causa mortis." This - 120 N. E. 717, provides that “any

definition of the words, "contemplaconveyance, gift, or transfer made tion of death,” is referred to in Cole v. within two years of the death of any Nickel (1919) - Nev. —, 177 Pac. 409, decedent without consideration save but its construction and effect are not and except love and affection, shall involved in that case. W. A. E.

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(- Wis. —, 172 N. W. 785.) Physician — liability for ordering hot iron for patient.

1. A physician who has performed an operation upon a patient, who is unconscious, is not negligent in ordering the patient's attendant to keep her warm by placing hot irons in bed with her, so as to render him liable in case the patient is burned by the negligent use of the iron.

[See note on this question beginning on page 1527.] - burning patient — who responsible. Physician - anticipation of injury.

2. Negligence in placing a hot iron 4. To render a surgeon who has just upon the feet of a patient who has just performed an operation upon a patient

a undergone an operation is that of the attendant, and not of the doctor, where

liable for burning the patient by hot the attendant, being a mature person

irons which he directed the patient's of intelligence and employed by the attendant to place in the bed, he must patient, was merely told by the doctor have anticipated that the attendant to place a hot iron in the bed, at or would use irons at such temperature, around the patient's feet.

and in such manner, as to cause the [See 21 R. C. L. 393.]

injury. Master and servant who master of patient's attendant.

Costs reversal on appeal. 3. An employee of a patient who has 5. On reversal of a decree against the just undergone an operation does not defendant by an intermediate appellate become the servant of the physician so

court, defendant is entitled to the costs as to render him liable for her negligence, merely because he tells her to

properly taxable in his favor in the place a hot iron at the patient's feet.

trial court. [See 21 R. C. L. 393, 394.]

[See 7 R. C. L. 801.]


APPEAL by plaintiff from an order of the Circuit Court for Milwaukee County (Fairchild, J.) reversing a judgment of the Civil Court in his favor in an action brought to recover damages for loss of his wife's consortium, alleged to have been caused by defendant's negligence. Affirmed. Statement by Kerwin, J.:

the civil court was reversed, and This action was brought by the judgment entered in respondent's appellant, Joseph Malkowski, to re- favor, dismissing the appellant's cover damages for loss of his wife's complaint upon the merits, and consortium, occasioned by the al granting respondent costs in the leged negligence of the respondent,

sum of $88.44 against appellant, a physician.

from which judgment this appeal The action was brought in the

was taken. civil court for Milwaukee county, and the jury returned a verdict in Messrs. Nohl & Nohl, for appellant: favor of the plaintiff, and assessed The injuries sustained were caused his damages at $300. Judgment by the negligence of defendant. was rendered on the verdict in Hrubes v. Faber, 163 Wis. 89, 157 N. favor of the plaintiff for $300 dam

W. 519; Adams v. University Hospital,

122 Mo. App. 675, 99 S. W, 453; Fawages and costs. Upon appeal from

cett v. Ryder, 23 N. D. 20, 135 N. W. the civil to the circuit court, on mo

800, 3 N. C. C. A. 153. tion, and without any new trial in There should be no reversal and a the circuit court, the judgment of new trial in the circuit court, "except

(-- Wis. —, 172 N. W. 785.) when substantial justice cannot other- Wis. 142, 113 N. W. 657; Chybowski v. wise be done and the rights of the

par- Bucyrus Co. 127 Wis. 332, 7 L.R.A. ties cannot otherwise be preserved.” (N.S.) 357, 106 N. W. 833; Grossen

Hanna v. Chicago, M. & St. P. R. Co. bach v. Milwaukee, 65 Wis. 31, 56 Am. 156 Wis. 626, 146 N. W. 878.

Rep. 614, 26 N. W. 182; Musbach v. If a new trial is ordered, it should be Wisconsin Chair Co. 108 Wis. 57, 84 had in the circuit court.

N. W. 36; Hart v. Neillsville, 141 Wis. Toledo Computing Scale Co. v. Polan- 3, 135 Am. St. Rep. 17, 123 N. W. 125; is, 157 Wis. 312, 147 N. W. 632.

James v. Carson, 94 Wis. 632, 69 N. W. In cases of reversal of judgments of 1004. the civil court, only motion costs should No verdict can be permitted to stand be allowed in circuit court.

which fails to give full effect to an esWinternitz v. Schmidt, 161 Wis. 421, tablished physical fact. For a physical 154 N. W. 626; Concrete Steel Co. v. fact in any case cannot be overridden Illinois Surety Co. 163 Wis. 41, 157 or disregarded or set aside by the verN. W. 543.

dict of a jury. Messrs. Joseph G. Hirschberg and Montanye V. Northern Electrical Horace B. Walmsley, for respondent. Mfg. Co. 127 Wis. 22, 105 N. W. 1043;

The person sought to be held liable Barlow v. Foster, 149 Wis. 613, 136 N. should have anticipated within the lim- W. 822; Hayman v. Milwaukee Bridge its of the doctrine of proximate cause, Co. 127 Wis. 550, 106 N. W. 1081, 7 that is, as an ordinarily prudent and Ann. Cas. 458; White v. Minneapolis, intelligent person, that some injury to St. P. & S. Ste. M. R. Co. 147 Wis. 141, someone might naturally and probably 133 N. W. 148; Gardner v. Chicago & result from his act. And whenever M. E. R. Co. 164 Wis. 541, 159 N. W. there is no evidence to support this es- 1066; Marchand v. Bellin, 158 Wis. 187, sential factor of reasonable anticipa- 147 N. W. 1033. tion, there can be no recovery.

Kerwin, J., delivered the opinion Dougan v. Champlain Transp. Co. 56 N. Y. 1; South Side Pass. R. Co. v.

of the court: Trick, 117 Pa. 390, 2 Am. St. Rep. 672,

The main question is whether the 11 Atl. 629; Hanson v. Superior Mfg. evidence was sufficient to support Co. 136 Wis. 617, 118 N. W. 180; Soren- the verdict in the civil court, findson v. Menasha Paper & Pulp Co. 56 ing the defendant negligent. Wis. 338, 14 N. W. 446; Deisenrieter v. In considering the evidence in Kraus-Merkel Malting Co. 97 Wis. 288, this case we are mindful of the es72 N. W. 735; Hasbrouck v. Armour & tablished rule that if there is any Co. 139 Wis. 357, 23 L.R.A.(N.S.) 876, 121 N. W. 157, 21 Am. Neg. Rep. 430;

credible evidence to support the

verdict it cannot be disturbed. Armour & Co. v. Harcrow, 133 C. C. A. 218, 217 Fed. 224, 7 N. C. C. A. 325;

The defendant denied practically Barton v. Pepin County Agri. Soc. 83

all the material evidence relied Wis. 19, 52 N. W. 1129; Wolosek v. upon by plaintiff. So we shall treat Chicago & M. Electric R. Co. 158 Wis. the appellant's evidence as undis477, 149 N. W. 201.

puted, since, if it is sufficient to Defendant could not be held liable

support the verdict, the judgment for the acts of a mere volunteer, and if

appealed from must be reversed. the negligence was that of some per- The defendant was called to person to whom the husband had, for the time being, intrusted the care of his

form an operation on plaintiff's wife, then the husband cannot recover.

wife, and did so while Mrs. MalKuchler v. Milwaukee Electric R. &

kowski was under the influence of Light Co. 157 Wis. 107, 146 N. W. 1133, an anesthetic, and after the operAnn. Cas. 1916A, 891.

ation placed her in bed while she The finding that the patient was was unconscious. At the time of burned by the piece of iron was a pure the operation, one Mrs. Lenga was conjecture. And a verdict cannot be

in the employ of plaintiff, or his founded on conjecture.

wife, to take care of plaintiff's chilHyer v. Janesville, 101 Wis. 371, 77 N. W. 729, 5 Am. Neg. Rep. 268; Sor

dren, and at the request of defendenson v. Menasha Paper & Pulp Co. 56

ant placed a hot stove lid in the bed Wis. 338, 14 N. W. 446; Smith v. Chi

to warm it, which, it is claimed, cago, M. & St. P. R. Co. 42 Wis. 520;

burned Mrs. Malkowski's feet. Mrs. Schell v. Chicago & N. W. R. Co. 134 Lenga was a

married woman

was, to

twenty-five years of age, had two Q. You carried it in and put it children, was related to plaintiff, by her feet? and was an intelligent, competent A. By her feet. person, but had had no experience Q. Yes; and you agreed with Dr. as a nurse.

Graham that it was nice and warm, After the operation was per- didn't you? forrned Mrs. Malkowski remained A. How? unconscious for about four hours, Q. And you agreed with Dr. and the claim of plaintiff is that her Graham that it was just the right feet were burned during that time temperature? by the stove lid placed in the bed by A. I don't understand the first. Mrs. Lenga, and that the defendant Q. That it was not too hot? was negligent in telling Mrs. Lenga A. Why, sure; he told me it was to put the lid, which was too hot, in all right, so I put it in. the bed with Mrs. Malkowski.

Q. You knew it was all right too, The evidence shows that after the didn't you? operation defendant suggested that Well, I wasn't sure, because I something hot be placed in the bed asked him if it was all right. where Mrs. Malkowski

Q. You didn't tell him it was very warm it, for the purpose of reliev- hot, did you? ing the patient from the shock of A. Why, I didn't say anything. I the operation.

just says, if that is all right, that he The court below, in reversing the should feel the iron, and he said it judgment of the civil court, filed an was all right. opinion, in which he gives the ma- Q. And then you put it in at her terial evidence of Mrs. Lenga as feet? follows:

A. Yes, sir. Well, I asked him Well, the doctor told me to get

where to put the iron, and he says: something hot, to put that in the

“Put it around by her feet.” bed, and I asked him if the irons There is no evidence in the record would do, and he told me, "Well, that defendant told Mrs. Lenga to put anything, as long as it is hot." put the irons on the feet of the paThe doctor went into the other tient. Giving the evidence the most room, and he was dressing up. I favorable construc

Physiciangot some newspaper, and put the tion for the appel- barning lid in the paper, and folded it up, lant, it is that de- patient-who

responsible. and picked it up, went to the other fendant told Mrs. lady, who was right in the kitchen, Lenga to place the irons in the bed told her the doctor told me to put at or around the patient's feet, not something hot, and I told her that upon her feet. she should feel it. “What do I Moreover, Mrs. Lenga was as know about it?" she says; "ask the competent to judge whether the doctor.” I then turned and carried iron was hot enough to burn as was it over to the doctor, who was in the defendant, and was as competent to sitting room and was dressing. I know that, if it was hot enough to waited until he pulled on his coat. I burn, it should not be placed on the didn't wait long, just held it up to patient's feet. Defendant had a him, and he felt, and I asked him if right to rely upon Mrs. Lenga's that was all right, and he says, knowledge, and believe that she “Yes, that is all right; put that in;" would not so place the iron as to and I says, "Where?” and he says, burn the patient. Whether the iron “In the bed, at her feet.” The first was hot enough to burn was within iron I put by her feet.

the common knowledge of any perQ. What did you do with the first son of the intelligence and experiiron?

ence of Mrs. Lenga. The negliA. The first iron I put by her gence, if any, upon the undisputed feet.

evidence, was the negligence of

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