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Mut. L. Ins. Co. 200 Ill. 270, 65 N. E. 694; The defendant invokes the rule appliHarris v. Schrivener, Tex. Civ. App. cable to marine insurance, life insurance, 78 S. W. 705; Merchants’ Ins. Co. v. Clapp, and fire insurance, that, where a risk has 11 Pick. 56; Hearne v. New England Mut. once attached, even for a moment, the inIns. Co. 20 Wall. 488, 22 L. ed. 395; Home sured is not entitled to a return of any part F. Ins. Co. v. Kuhlman, 58 Neb. 488, 76 of the premium paid. Am. St. Rep. 111, 78 N. W. 936; St. Paul This rule seems to have been first anF. & M. Ins. Co. v. Coleman, 6 Dak. 458, nounced by Lord Mansfield in the case of 6 L.R.A. 87, 43 N. W. 693.

Tyrie v. Fletcher, Cowp. pt. 2, p. 666, 14 Mr. A. G. Moseley also for appellant. Eng. Rul. Cas. 502. In that case a ship

Messrs. Larkin E. Crouch, Litton was insured for twelve months at a stipuHickman, and Thomas H. Malone, for lated premium, but was captured by an appellee:

enemy in about two months after sailing, In cases of compensated suretyship, where and suit was brought against the insurer the public official has died during the con- for a return of a proportionate part of the tinuance of his term, the surety company premium. is thereby discharged from any future lia- Lord Mansfield said: “If that risk of bility, and a promise on its part to return the contract of indemnity has once the unearned premiums is implied in law. menced, there shall be no apportionment

Bostick v. Maxey, 5 Sneed, 173; Frost, or return of premium afterwards. For, Guaranty Ins. 2d ed. § 153.

though the premium is estimated, and the There was a contract implied in fact, risk depends upon the nature and length whereby the defendant, for a valuable con- of the voyage, yet, if it has commenced, sideration, bound itself to return the un- though it be only for twenty-four hours earned premiums.

or less, the risk is run; the contract is Hill v. Childress, 10 Yerg. 514; Heffron for the whole entire risk, and no part of v. Brown, 155 Ill. 322, 40 N. E. 583; Bixby the consideration shall be returned. v. Moor, 51 N. H. 402.

They might have insured from two months

to twelve months, or in any less or greater Green, J., delivered the opinion of the proportion, if they had thought proper so court:

to do; but the fact is that they have made Peter W. Crouch was elected trustee of no division of time at all, but the contract Davidson county at the August election in entered into is one entire contract from the 1912. He was inducted into office in Sep 19th of August, 1776, to the 19th of August, tember, 1912, and gave bond in the sum 1777, which is the same as if it had exof $1,000,000 to the state and county, to pressly said:

'If you, the undersecure the faithful performance of his du- j writer, will insure me for twelve months, ties during his term, with the defendant I will give you the entire sum; but I will company as surety on his bond. At the not have any apportionment.' The ship same time a contract was entered into be. sails, and the underwriter runs the risk tween Mr. Crouch and the defendant com. for two months. No part of the premium pany, whereby the latter agreed to become shall be returned.” his surety for a premium of $4,000 per an- This case has been universally followed, num.

The first year's premium was paid and the rule therein stated has been applied in advance.

to life insurance, fire insurance, and casualMr. Crouch died in February, 1913, about ty insurance contracts. May, Ins. § 567; six months after he qualified as trustee. Joyce, Ins. § 1420; Mutual L. Ins. Co. v. This suit was brought by his widow, as ad- Kelly, 52 C. C. A. 154, 114 Fed. 268; Dickministratrix, to recover $2,000, or one half erson v. Northwestern Mut. L. Ins. Co. 200 of the first annual premium paid to defend. I. 270, 65 N. E. 694; New York F. M. ant company as aforesaid.

Ins. Co. v. Roberts, 4 Duer, 141; Waters A demurrer was interposed by the de- v. Allen, 5 Hill, 421; Connecticut Mut. L. fendant, which was overruled by the chan- Ins. Co. v. Pyle, 44 Ohio St. 19, 58 Am. cellor, and defendant permitted to appeal. Rep. 781, 4 N. E. 465; Hoyt v. Gilman, 8

The first ground of demurrer makes the Mass. 336; Joshua Hendy Mach. Works v. point that, when Mr. Crouch took charge American Steam Boiler Ins. Co. 86 Cal. 248, of the office, the entire risk was assumed 21 Am. St. Rep. 33, 24 Pac. 1018; Blaeser by the defendant and the entire premium v. Milwaukee Mechanics' Mut. Ins. Co. 37 earned under the contract; that the pre- Wis. 31, 19 Am. Rep. 747. mium was not apportionable, and complain- This rule, in fact, seems not to have been ant was not entitled to a return of any questioned in any American case, but has part thereof, even though Mr. Crouch died been accepted and applied by th courts when about one half of the year for which as settled law. he was bounded remained.

This rule is said to be based on just and

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equitable principles, for the insurer has, by All insurance, fire and life, as well as taking upon himself the whole peril, become guaranty, is somewhat personal in its naentitled to the whole premium, and, al- ture, resting to a great extent on the though the application of the rule may re- reputation and character of the insured, sult in profit to the insurer, it is but a but all such contracts are essentially entire. just compensation for the dangers or perils It is impossible to say what part of the assumed. It has also been pointed out that i risk has been run, or how much of the the danger incurred may be greater in one consideration has been earned, at any parmoment than during the entire voyage, and ticular time during the period of insurance. it would be extremely difficult to fairly ap- Even though, therefore, the completion of portion the premium, if a recovery of any such a contract becomes impossible, there part thereof were permissible. Joyce, Ins. is no way to fix the value of the services § 97.

rendered. It is difficult to see why this rule should We think, therefore, the chancellor was in not apply with equal vigor to fidelity insur- error in overruling the first ground of de

Upon what fair basis can the pre- murrer. It is impossible to apportion such mium, the consideration paid for under a hazard, and, the whole risk having attaking the risk of fidelity, be apportioned ? tached, there can be no return of any part

This hazard is proportioned to the falli- of the premium, upon the facts so far bility of the subject of insurance, and its stated. extent is measured by the amount of funds The bill contains other features which we in his custody. Moral stamina is a vary. have not commented upon, with reference ing quantity, even in the same person. to certain dealings between the complainIt is influenced by many things. It ant and the surety company after the death is impossible to say at what time the temp. of Mr. Crouch. In these negotiations it is tation of an individual bonded is greatest averred that Mrs. Crouch permitted the and the greatest risk is being run by the defendant to take charge of the trustee's surety. Likewise, the amount of money in office and obtain certain fees therefrom, the hands of the official or the employee after her husband's death, with the underfluctuates from day to day, and it is diffi- standing that a portion of this premium cult and often impossible to determine on was to be returned to her. Some questions what day the liability of the surety is of estoppel and waiver are made by the greatest in extent.

bill which the demurrer does not reach. At Who can say how much of the surety's any rate, the matters so alleged require an risk was run during any given period ? How answer. The chancellor correctly so held, then can it be determined what part of the overruling other grounds of demurrer. premium has been earned during any given The case will therefore be remanded for period? A premium cannot be apportioned answer and further proceedings, and the where a risk is unapportionable. Premium surety company will pay the costs of this and risk are interdependent and insepar- appeal. able. It being impossible to say what part of a risk has been run, it is likewise impossible to say what part of a premium is WISCONSIN SUPREME COURT. unearned, --what part should be returned. The case before us illustrates the diffi

CHARLES LUDKE, Respt., culty of attempting an apportionment of premiums in fidelity insurance, for it here

DIEDRICH BURCK, Appt. appears that the great bulk of the funds passing through this official's hands were

(160 Wis. 440, 152 N. W. 190.) collected and disbursed by him

Automobile month of the twelve for which he was

exceeding speed limit bonded. That is to say, this surety's risk

contributory negligence.

1. Violation of a statute fixing under was greater in extent for this one month penalty a speed limit for automobiles on a than during the remaining eleven months highway does not deprive one of the de. combined.

fense of contributory negligence on the part An argument is made on behalf of Mrs.

Vote. Crouch in which it is urged that this con

Automobile: defendant's viola

tion of law as affecting defense of tract of suretyship should be treated as a

contributory negligence. contract for personal services, which it became impossible to execute by reason of Generally, as to operating automobile on the death of one of the parties, and it is highway without license, see notes to Dudinsisted that only so much of the considera- (M.S.) 561; Hemming v. New Haven, 25

ley v. Northampton Street R. Co. 23 L.R.A. tion should be retained as might be recov.T.R.A.(N.S.) 734; Lindsay v. Cecchi, 35 ered on a quantum meruit.

L.R.A. (N.S.) 699; Atlantic Coast Line R.




of one injured by collision with the automobile, unless his conduct is such under all

PPEAL by defendant from an order of A

the Circuit Court for Milwaukee Counthe circumstances as to amount to gross ty awarding plaintiff a new trial after a negligence.

verdict in his favor for a less sum than deNew trial withdrawal of issue from manded, in an action brought to recover jury.

damages for loss of services of his minor 2. Withdrawing from the jury the ques. son arising from injuries inflicted by an tion whether or not defendant in an action to recover damages for injuries inflicted by automobile alleged to have been negligently a moving automobile was exceeding the driven by defendant. Affirmed. speed limit is ground for new trial at the instance of plaintiff, whose award of com- Statement by Siebecker, J.: pensatory damages was small, even though This is an action by Charles Ludke to rene was found to be guilty of contributory cover for loss of services of his minor son, negligence, since the withdrawal of such is: Herbert Ludke, who was injured by an ausue would deprive plaintiff of the benefit of tomobile owned and driven by the defendevidence in support of it in determining the ant. The boy was thirteen years of age. question of his negligence.

The accident occurred June 8, 1913, upon (April 13, 1915.)

Forrest Home avenue near the intersection Co. v. Wier, 41 L.R.A. (N.S.) 307; Conroy E. 216; Bouma v. Dubois, 169 Mich. 422, v. Mather, 52 L.R.A. (N.S.) 801; and Arm- 135 N. W. 322; Kurtz v. Tourison, 241 Pa. stead v. Lounsberry, ante, 628.

425, 88 Atl. 656; Posener v. Long, Тех. As to reciprocal duty of operator of auto. Civ. App. 156 S. W. 591; Coughlin v. mobile and pedestrian to use care, see note Weeks, 75 Wash. 568, 135 Pac. 649; Lloyd to Deputy v. Kimmell, 51 L.R.A. (N.S.) v. Callioun, 78 Wash. 438, 139 Pac. 231. 989, and notes there referred to.

And in Davis v. John Breuner Co. 167 As to duty and liability of operator of Cal. 683, 140 Pac. 586, the mere fact that automobile with respect to horses encoun- the defendant in an action to recover for tered on the highway, see notes to Messer v. personal injuries caused by an automobile Bruening, 48 L.R.A. (N.S.) 946.

was violating a speed ordinance, and thereFor notes as to rules of road governing fore as a matter of law guilty of negligence, vehicles, see Index to L.R.A. Notes, “Negli- did not preclude the court from finding gence," § 25.

that the plaintiff's contributory negligence This note does not deal with the ques. in heedlessly walking into the street was tion as to what amounts to contributory the efficient and proximate cause of the innegligence on the part of a plaintiff injured juries suffered by him. by an automobile, but is concerned solely In Banks v. Braman, 188 Mass. 367, 74 with the consideration whether a violation N. E. 594, which was an action to recover of law by the driver of an automobile will for injuries received by being struck by prevent him from taking advantage of the an automobile alleged to have been run at plaintiff's contributory negligence as a de- an excessive speed, an instruction which fense.

laid down the principle that if the defendLittle direct authority exists upon the ant ran his automobile with gross and wanquestion, but it seems clear that the mere ton negligence, and with a reckless disviolation of an ordinance by the operator regard of the rights of the plaintiff, the of a car should not preclude him from set- j latter was not required to show an exerting up the contributory negligence of one cise of due care on his part in order to suffering an injury by the operation of the recover, was held insufficient, because the machine as a defense.

court failed to point out clearly the differIn some cases it is impliedly recognized ence between ordinary negligence and gross that a violation of an ordinance by a de- negligence. With reference to the plainfendant in an action to recover for the nego tiff's right to recover in cases involving ligent operation of his automobile will not wilful negligence, without showing an exerpreclude him from defending on the ground cise of due care on his part, the court said: of the plaintiff's contributory negligence. “The ground on which it is held that, when Thus, in the following cases, brought to re

an act of the defendant shows an injury incover for an injury sustained by reason of ficted in this way, the plaintiff need inthe negligent operation of an automobile, troduce no affirmative evidence of due care, in which it appeared that the defendant is that such a wrong is a cause so independhad violated an ordinance in operating his ent of previous conduct of the plaintiff, car, it seems to have been assumed that no which, in a general sense, may fall short recovery could be had if the plaintiff's neg- of due care, that this previous conduct canligence proximately contributed to this in- not be considered a directly contributing jury, there apparently having been no con- cause of the injury, and, reference to such tention or suggestion that the defendant's an injury, the plaintiff, without introducact would allow the plaintiff to recover if ing evidence, is assumed to be in a position he was guilty of contributory negligence: to claim his rights and to have compensaGrier v. Samuel, Del. —, 86 Atl. 209; tion. So far as the cause of his injury is Fox v. Barekman, 178 Ind. 572, 99 N. E. concerned, he is in the position of one who 989; Hartje v. Moxley, 235 Ill. 164, 85 N. exercises due care."

J. T. W.


of Fourteenth avenue, in the city of Mil- v. Chicago & N. W. R. Co. 146 Wis. 645, 132 waukee. It appears that a person riding N. W. 618, Ann. Cas. 1912C, 485. in a passing automobile had lost his hat, The evidence did not present a jury issue and that the boy endeavored to recover it, as to the violation by the defendant of the and, while doing so, was struck and serious. speed limit-15 miles per hour-at the time ly injured by the automobile owned and of the accident. driven by the defendant. The complaint Samulski v. Menasha Paper Co. 147 Wis. alleges that defendant was negligent in 285, 133 N. W. 142; Jeffers v. Green Bay that he was operating his car at a high & W. R. Co. 148 Wis. 315, 134 N. W. 900; and dangerous rate of speed; that he oper- Neale v. State, 138 Wis, 484, 120 N. W. ated it recklessly; and that he endangered 345; Wanta V. Milwaukee Electric R. & property and life and limb of people who Light Co. 148 Wis. 295, 134 N. W. 133; Milmight be upon the street, by such negli- waukee Trust Co. v. Milwaukee, 151 Wis. gent operation of the car.

224, 138 N. W. 707; Baxter v. Chicago & The court submitted a special verdict to N. W. R. Co. 104 Wis. 307, 80 N. W. 644, the jury. After deliberating over twenty. 6 Am. Neg. Rep. 746; Hoppe v. Chicago, M. four hours on their verdict, the jury an- & St. P. R. Co. 61 Wis. 357, 21 N. W. 227. nounced that they had agreed upon only The act of driving an automobile at a two questions, and that questions 2 and 3 rate of speed greater than 15 miles an hour were among those upon which they had is classable as act of inadvertence, been unable to agree. The court thereupon, rather than of advertence, and hence conof its own motion, withdrew questions 2 stitutes ordinary rather than gross negliand 3, and the jury were instructed to re- gence. sume their deliberations upon the other Pinoza v. Northern Chair Co. 152 Wis. questions of the verdict. The questions 473, 140 N. W. 84; American Car & Founwithdrawn were:

dry Co. v. Armentraut, 214 Il. 509, 73 N. “(2) At the time of that collision, was E. 766; Brown v. Chicago & N. W. R. Co. the defendant operating his automobile at 109 Wis. 384, 85 N. W. 271, 9 Am. Neg. a speed exceeding 15 miles per hour ? Rep. 403; Barlow v. Foster, 149 Wis, 613,

"(3) If you answer question No. 2, 'Yes,' 136 N. W. 822; Quinn v. Ross Motor Car then answer this question: Was the oper- Co. 157 Wis. 543, 147 N. W. 1000. ation of the automobile at that time at a The act of driving an automobile at a speed exceeding 15 miles per hour a proxi- speed greater than 15 miles an hour does mate

of the injury to Herbert not constitute either a felony or a misdeLudke?"

meanor, and therefore does not constitute After the withdrawal of these two ques. gross negligence, tions, the jury returned a verdict finding State ex rel. Cooper v. Brazee, 139 Wis. that defendant failed to exercise ordinary 538, 121 N. W. 247; Milwaukee v. Beatty, care in observing plaintiff's son, and there- 149 Wis. 349, 135 N. W. 873; Milwaukee by proximately caused the collision, and v. Ruplinger, 155 Wis. 391, 145 N. W. 42; that the boy's negligence contributed to Natalie v. Chicago & M. E. R. Co. Wis. produce the collision. They awarded com- 149 N. W. 697, 7 N. C. C. A. 879; Bonpensatory damages in the sum of $369.70. nell v. Chicago, St. P. M. & O. R. Co. 158

The defendant moved for judgment upon Wis. 153, 147 N. W. 1046. the verdict, which motion was denied. The Messrs. Glicksman, Gold, & Corrigan plaintiff's motion to set aside the verdict and A. J. Pellette, for respondent: and for a new trial was granted, and a new i It is fatal error for the trial court to retrial ordered. The court announced that fuse to submit to the jury a pleaded issuthe new trial was granted for the reason able fact in the case. that the withdrawal of questions 2 and 3 Sadowski v. Thomas Furnace Co. 157 Wis. from the special verdict and the considera- 443, 146 N. W. 770; Bugajski v. Milwaukee tion of the jury operated to the prejudice Western Fuel Co. 158 Wis. 454, 149 N. W. of plaintiff's legal rights. From such order | 277; Wawrzyniakowski v. Hoffman & B. this appeal is taken.

Mfg. Co. 146 Wis. 153, 131 N. W. 429.

Where a defendant is charged and conMessrs. Doerfler, Green, & Bender, for victed of negligent conduct which consists appellant:

of the violation of a statute, for the viola The evidence neither necessitated nor tion of which punishment may follow, conwarranted the submission to the jury of tributory negligence is no defense. the issues involved in the second and third Pinoza v. Northern Chair Co. 152 Wis. questions of the special verdict.

473, 140 N. W. 84; Pizzo v. Wiemann, 149 Kawiecka v. Superior, 136 Wis. 613, 21 Wis. 235, 38 L.R.A.(N.S.) 678, 134 V. W. L.R.A.(N.S.) 1020, 118 N. W. 192; Habeck '892, Ann. Cas. 1913C, 803, 3 N. C. C. A. 149.


Siebecker, J., delivered the opinion of tion here is of the latter class. It reguthe court:

lates the use of the streets for operating The ruling of the trial court presents the motor vehicles in incorporated villages and question whether or not the contributory cities, and forbids operating or driving such negligence of a traveler upon a city street vehicles in the streets of such villages and is available as a defense in an action for cities at a speed exceeding 15 miles per personal injury alleged to have been caused hour, and prescribes punishments for violato such traveler by a person who negligent- tions thereof. The law regulates the conly drives an automobile in excess of the duct of persons who are exercising the comlegal speed limit. The trial court held mon right of using public highways as that if a violation of § 1636–49, pre- travelers, for the purpose of compelling scribing a speed limit of 15 miles per hour greater care for the protection and safety for running automobiles on city streets, re- of all travelers. The operation of motor sulted in personal injuries to a traveler on vehicles on streets is as lawful a use theresuch streets, then the defense of contribu- of as that of any other traveler; and the tory negligence of such injured traveler is object of the statute is to restrict this use not available in an action for recovery of to such ways as will lessen the dangers to damages for such injury. The court based travelers from high speed and other hazthe ruling upon the authority of the de- ardous practices. Such regulations are not cisions in Pizzo v. Wiemann, 149 Wis. 235, intended to abrogate the duties of travelers 38 L.R.A.(N.S.) 678, 134 N. W. 899, Ann. recognized by the common law for their Cas. 1913C, 803, 3 N. C. C. A. 149, and mutual safety, and leaves them subject to Pinoza v. Northern Chair Co. 152 Wis. 473, its accepted rules of ordinary care and the 140 N. W. 84, wherein it was held that duties that spring from their relations as "where the violation of a statute designed travelers on a public highway. In the light to protect persons against bodily injuries of this relation and the duties arising thereis made a criminal offense, such a violation from, it may well be that a person operatshould be classed with gross negligence, | ing a motor vehicle at a speed much less and for injuries resulting therefrom the than that denounced by the statute, on a guilty person should be held liable in a street crowded with men, women, and chilcivil action, regardless of contributory neg-dren, and thereby inflicting some personal ligence on the part of the person injured.” injuries on another, would be guilty of wil(Headnote.).

fully injuring such person, while another These cases dealt with statutes prohibit operating such a vehicle slightly in excess ing the sale of firearms and the employ of the statutory speed might do so under ment of minors under sixteen years of age conditions and circumstances as to show in certain specified employments. The doc. that the care exercised, in the light of such trine of these and similar cases is that conditions and circumstances, did not conthe violation of these statutes is of such stitute a wanton and reckless disregard of gravity that public policy requires, in the the rights of another who suffered an ininterest of protecting life and limb, that jury by colliding with such motor vehicle. persons violating them be held to strict ac. This court has held that a violation of the countability for the consequences flowing commands of a statute of this class, caustherefrom, regardless of the fault of the ing personal injury to another, is not to injured person, and therefore tlie persons be treated as a wilful injury, as matter of violating them, and thereby producing per- law. but that the fact of such violation is sonal injuries to another, were to be treated negligence per se, and that the defense of as guilty of wilfully injuring another, as contributory negligence is not abrogated. matter of law. Does this principle apply

The case of Brown v. Chicago & N. W. in cases where a statute prohibits some

R. Co. 109 Wis. 384, 85 N. W. 271, 9 Am. thing innocent in itself, but made unlaw. Neg. Rep. 403, wherein the alleged injury ful, and violation thereof penalized, to com

was claimed to be caused by the railroad pel a higher standard of care as regards company running its trains in excess of the person and property? Of this latter class speed fixed by law, is one of this class of are regulations penalizing persons for vio

It is therein stated that "the act lation of laws governing the duties to build was negligence per se,

but not fire escapes to buildings; of railroads to necessarily actionable negligence. To congive warning of approaching trains at pubstitute an actionable wrong, the conduct lic crossings in densely populated districts; must be the proximate cause of an injury, forbidding the running of trains in excess without any want of ordinary care on the of a limited speed over streets in incorpo- part of the injured person contributing rated villages and cities; the using of city thereto." streets as speedways for horses and ve- True, the punishment imposed by the hicles; and similar laws. The law in ques. 'statute here involved is more severe than


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