MISKE et al. v. THOM. (Supreme Court of Wisconsin. Dec. 6, 1910.) 1. SALES ($ 441*)-BREACH OF WARRANTYACTION-SUFFICIENCY OF EVIDENCE. In an action for breach of warranty of a horse, evidence held to support a finding that the horse had the glanders when sold. [Ed. Note. For other cases, see Sales, Cent. Dig. § 1277-1283; Dec. Dig. § 441.*] 2. EVIDENCE (§ 537*)-OPINION EVIDENCEQUALIFICATION OF EXPERTS — VETERINARY SURGEONS. The statute requiring registration of veterinarians having been repealed by Laws 1907, c. 334, that veterinary surgeons were not registered would not disqualify them from testifying as experts. [Ed. Note. For other cases, see Evidence, Dec. Dig. § 537.*] 3. EVIDENCE (§ 537*) - OPINION EVIDENCEQUALIFICATION OF EXPERTS - VETERINARY SURGEONS. sale took place within a week or two prior to that date. Two veterinary surgeons examined the horse in the early part of June, and testified that it was then suffering from an advanced case of glanders, which would take two or three months to develop. This was sufficient evidence, if believed by the jury, to warrant the conclusion that the horse I was suffering from the disease when purchased. While 2. It is said that the veterinary surgeons were not qualified to testify as experts because they were unregistered (McCann v. Ullman, 109 Wis. 574, 85 N. W. 493), and because they did not show that they had ever had knowledge of glanders from personal experience in treating the disease. Neither objection has any weight. The statute requiring registration of veterinarians was reIpealed by chapter 334, Laws 1907. the veterinarians did not testify to personal experience with glanders they were both shown to be graduates of veterinary colleges, and to have actively practiced a number of years. They did not state that they derived their knowledge from medical works exclusively unaided by practical experience. The defendant did not choose either preliminarily or otherwise to ask them with reference to their practical knowledge, and the [Ed. Note. For other cases, see Evidence, fair inference is that they were testifying Cent. Dig. §§ 2345, 2346; Dec. Dig. § 537.*] 4. TRIAL (§ 260*) — NECESSITY FOR INSTRUC- from experience, and not from books. Kath TIONS-REQUEST EMBRACED IN CHARGE GIV-V. W. C. R. Co., 121 Wis. 503, 99 N. W. 217; Bucher v. W. C. R. Co., 139 Wis. 597, 120 N. W. 518. Where veterinary surgeons were graduates of veterinary colleges, and had actively practiced a number of years, they were not incompetent to testify as to glanders in a horse because they did testify as to such disease from personal experience in treating it, where they did not state that they had derived their knowledge from medical works exclusively, and the adverse party did not ask them with reference to their practical knowledge; the inference being that they were testifying from experience, and not from books. EN. The refusal of specific requests as to the burden of proof and preponderance of evidence was not error where such subjects were fully and correctly covered in the general charge. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 651-659; Dec. Dig. § 260.*] Appeal from Circuit Court, Eau Claire County; A. J. Vinje, Judge. Action by E. J. Miske and others against Leonard Thom. Judgment for plaintiffs, and defendant appeals. Affirmed. W. H. Frawley and T. F. Frawley, for appellant. Sturdevant & Farr, for respondents. WINSLOW, C. J. This is an action for breach of warranty of a horse, which the plaintiffs purchased of the defendant under an alleged warranty of soundness, but which was found to be suffering from glanders soon after the purchase. The defendant denied the warranty, but upon the trial a general verdict was found for the plaintiff, assessing damages at $121.77, and from judgment on the verdict the defendant appeals. 3. Complaint is made because the court did not give to the jury certain specific instructions as to the burden of proof and the preponderance of evidence, but, as these subjects were fully and correctly covered in the general charge of the court, there was no error in refusing the instructions asked by the appellant. Some minor objections are made, but they are so trivial and manifestly without foundation that we do not find it necessary to treat them in detail. Judgment affirmed. VINJE, J., took no part. KEENA v. AMERICAN BOX TOE CO. (Supreme Court of Wisconsin. Dec. 6, 1910.) 1. MASTER AND SERVANT (§ 286*) — InstrucTION OF SERVANT-OBLIGATION OF MASTER -QUESTION FOR JURY. The errors claimed will be briefly noticed. of an obvious danger, but where an infant of A master need not warn an adult employé 1. It is claimed that there was no evidence tender years, having no experience with matending to show that the horse had glanders chinery, is employed to operate a machine, the at the time of the sale. This claim is un- question whether he knew and appreciated, or tenable. The time of the sale was in dis-ought to have known and appreciated, the dangers and the extent of the risk to which he was subjected, is for the jury. pute, but the horse was delivered on the 12th day of May, and there was sufficient evidence to justify the jury in finding that the [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1046; Dec. Dig. § 286.*] 2. MASTER AND SERVANT (§ 286*)-INSTRUCTION OF SERVANT-OBLIGATION OF MASTER -QUESTION FOR JURY. Whether a girl, 14 years old, working on a machine consisting of steel rollers, revolving towards each other by power and used to straighten shoe tips passing between the rollers, should have known and appreciated the danger and the extent thereof without warning, or whether the master was negligent in failing to warn her, held for the jury. [Ed. Note. For other cases, see Master and Servant, Cent. Dig. § 1046; Dec. Dig. § 286.*] 3. MASTER AND SERVANT (§ 121*)-GUARDING MACHINERY-STATUTES. St. 1898, § 1636j, requiring the guarding of belting, shafting, gearing, hoists, flywheels, elevators, and drums, does not require the guarding of steel rollers revolving towards each other and used to straighten material passed between them. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 229; Dec. Dig. § 121.*] 4. TRIAL (§ 251*) - INSTRUCTIONS APPLICABILITY TO ISSUES. Where the complaint in an action for injuries to a servant while operating an unguarded machine charged merely a negligent failure to warn the servant as to the dangers incident to the work, without claiming that the machine was defective, the submission to the jury of the issue whether the machine was dangerous to employés when engaged in their ordinary duties of operating it, and reading in connection therewith St. 1898, § 1636j, requiring the guarding of specified machinery, was erroneous, necessitating a reversal, it being impossible to tell from the verdict whether the jury based their conclusion of negligence on the failure to warn, or on the unguarded condition of the machine. [Ed. Note.-For other cases, see Trial, Cent. Dig. §§ 587, 593; Dec. Dig. § 251.*] 5. MASTER AND SERVANT (§ 264*)-INJURY TO SERVANT-PLEADING AND PROOF. Where the complaint in an action for injuries to a servant while operating a machine charged only a negligent failure of the master to warn the servant of the danger, evidence that prior to the accident there had been a guard on the machine which had been taken off was inadmissible. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 863, 865; Dec. Dig. 264.*] 6. MASTER AND SERVANT (§ 297*)-SPECIAL VERDICT-QUESTIONS TO BE SUBMITTED-INJURY TO SERVANT. Where the complaint in an action for injuries to a servant while operating a machine only charged a negligent failure of the master to warn the servant, the questions of the special verdict should be whether the danger was so obvious that the servant, considering her age and experience, should have known and appreciated it prior to the injury, and whether the master failed to warn the servant so as to enable her to appreciate the danger, and whether such failure was the proximate cause of the injury, and whether any lack of ordinary care on the servant's part proximately contributed to her injury, together with the sum which would reasonably compensate her for her injury. [Ed. Note.-For other cases, see Master & Serv: ant, Cent. Dig. §§ 1195–1198; Dec. Dig. § 297.*] 7. CONSTITUTIONAL LAW (§ 46*)-VALIDITY OF STATUTES-IMMATERIAL QUESTION. Where the testimony of the foreman and superintendent of a corporation, called as an adverse witness under St. 1898, § 4068, as amended by Laws 1907, c. 271, was improperly received in evidence because immaterial under the issues, the validity of the statute would not be determined. [Ed. Note.-For other cases, see Constitutional Law, Cent. Dig. § 43;, Dec. Dig. § 46.*] Appeal from Circuit Court, Milwaukee County; Orren T. Williams, Judge. Action by Martha Keena, an infant, by James B. Keena, her guardian ad litem, against the American Box Toe Company. From a judgment for plaintiff, defendant appeals. Reversed and remanded. This is an action for personal injuries. It appeared on the trial that on July 20, 1907, the plaintiff was injured while working at a machine in the defendant's shop in Milwaukee, she being at the time 14 years and 2 months old. She had been employed by the defendant corporation about 6 weeks before the accident, her principal duties being to count and pack in boxes the shoe tips made by the company, which were pieces of leather and canvas pressed together, 4 or 5 inches in length and about 3 inches in width. On the day of the accident she was called by her brother, Walter Keena, who was foreman of the shop, to assist him at a machine which consisted of two steel rollers about 8 inches in diameter, operated by power and used to straighten the shoe tips as they were passed between the rollers. The machine stands on a table and the rollers revolve toward each other in the manner of a clothes wringer, there being a small shelf about 3 inches wide on each side. The foreman stood on the side where the rollers move towards each other and fed the tips into the machine between the rollers, and the plaintiff stood upon the other side and was required to take the tips as they came out of the rollers. She had done this before and had been accustomed to pack them in boxes as she took them out, but on this occasion she was told by the foreman to pass them over the top roller when she had got about 15 or 20 of them and give them to the foreman and he would pack them. She worked about 10 minutes, part of the time giving the tips to the foreman and part of the time laying them down upon the shelf upon the foreman's side of the machine in front of the rollers. She claims that she did the latter when he was busy and could not take them. She also testifies that she was not tall enough to look over the machine. After working 10 minutes or so, as she withdrew her hand after depositing a pile of tips upon the foreman's side of the machine, her fingers were in some manner caught between the rollers and two of them badly crushed so as to necessitate amputation. The plaintiff claims that she had received no warning or instruction as to the dangers connected with this machine. The jury returned the following special verdict: "Q. 1. Was the plaintiff injured on the 20th day of July, I der the same circumstances, if an infant of 1907, by having the fingers of her right hand tender years be involved, that it was propercaught and crushed between the rolls of the ly a question for the jury whether he knew 'rolling machine' of the defendant company? and appreciated, or ought to have known Ans. (By the Court by consent of counsel.) and appreciated, not only the existence of Yes. Q. 2. Did the defendant company, through its foreman, caution or warn the plaintiff not to get her fingers near or in the rolls in question? Ans. No. Q. 3. Was the 'rolling machine' in the condition in which it was at the time the plaintiff was injured dangerous to the employés of the defendant company when engaged in their ordinary duties about the operation of said machine? Ans. Yes. Q. 4. Did the defendant negligently fail to warn the plaintiff of any danger incident to the work in which she was engaged at the time of her injury, which was known or ought to have been known to the defendant, but which was unknown or unappreciated by the plaintiff? Ans. Yes. Q. 5. Was the defendant guilty of negligence which was the proximate cause of the plaintiff's injury? Ans. Yes. Q. 6. Ought the plaintiff, in reaching over the roller machine and placing the leather tips on the shelf on the feeding side of the machine, to have known that there was danger of getting her fingers caught between the rollers? Ans. No. Q. 7. Did any failure on the part of the plaintiff to exercise ordinary care for her own safety proximately contribute to her injury? Ans. No. Q. 8. What sum will reasonably compensate the plaintiff for her injury? Ans. $1,800." Doe & Ballhorn, for appellant. Harry M. Silber (A. J. Schmitz, of counsel), for respondent. the dangerous agency, but the extent and character of the risk to which he was subjected thereby. In the present case we have concluded that it was properly a question for the jury whether this infant without warning or instruction should have known and appreciated the extent of the risk to which she was subjected in passing the tips back over the rollers as she was directed to do. She was but 14 years of age, and had had practically no experience with machinery; she was standing on the side of the machine where there was no danger; she was not tall enough to look over the top roll and see the place where she was expected to deposit the tips which she took away from the machine, and we think it was fairly a question for the jury whether under these circumstances so young and inexperienced a child should be held to have known and appreciated, without warning, the risk which she was running, or the danger that a slight miscalculation in setting down the tips or in withdrawing her hand might bring a finger or two in contact with the roller. There was, however, one very palpable and prejudicial error committed by the trial court in the trial of the case and which necessitates reversal of the present judgment. The complaint charged negligence in one respect only, namely, in neglecting to warn or instruct the plaintiff as to the dangers incident to the operation of the machine; there was no claim that the machine was in any respect defective. Nor could it be claimed that these rollers were required to be fenced or guarded under the provisions of section 1636j. St. 1898. That section only covers "belting, shafting, gearing, hoists, flywheels, elevators, and drums," and these rollers do not come within any of those classes. WINSLOW, C. J. (after stating the facts as above). The broad claim is made that the defendant was under no duty to warn the plaintiff of the dangers connected with the operation of the machine, because such dangers, if any, were so open and obvious that even a child of plaintiff's age must be pre- Hence the third question of the verdict sumed to have known and appreciated them. had no proper function to perform in the Upon this contention reliance is placed on case and should not have been submitted. Groth v. Thomann, 110 Wis. 488, 86 N. W. To accentuate this error the trial judge read 178; Kuich v. Mil. B. Co., 139 Wis. 101, 139 to the jury section 1636j in connection with N. W. 101, and similar cases. That the case his instructions on the third question, and is very close to the border line cannot be told them that it was in force at the time of doubted. As to an adult under such circum- the accident. This statute was absolutely imstances it would be at once said by the court material, and the reading of it could leave that the danger was obvious and that he no other thought on the minds of the jury needed no instruction. But how as to a child than the thought that the trial judge had of 14 years? The difference in duty which decided that it had application to the case may exist in the case of a child of such ten- and required the rolls to be guarded if dander years and in the case of an adult was gerous to employés. These errors might not quite fully stated and the authorities collat- affect the judgment if the jury had found ed in Schumacher v. Tuttle Press Co., 142 | affirmatively that the proximate cause of the Wis. 631, 126 N. W. 46. There seems no accident was the negligent failure to warn necessity of going over the subject again. the plaintiff of the danger, but they did not. It is sufficient to say that it will often be It is impossible to tell from the verdict held as matter of law that a danger is open whether they based their conclusion of negliand obvious to an adult and that he needs gence on the failure to warn or on the un considerations also make it certain that it was error to allow proof that at some time previous to the accident there had been a guard of some nature upon the machine, which had been taken off. Some exceptions are argued involving the form of the questions in the special verdict and the refusal of the court to submit certain questions proposed by the appellant. We do not find it necessary to state these exceptions in detail. As before indicated, the third question of the verdict was improperly included. The questions at issue were few and simple. Perhaps if it were not for the fatal error resulting from the insertion of the third question and the instruction incorporating section 1636j in the charge, we might be able to say that the issues were substantially covered by the remaining questions, but they are not happily worded and upon another trial may be much simplified. The first question is strictly unnecessary because the fact was admitted both in the pleadings and the evidence, but is properly enough included in the verdict in order that it may cover all the facts; the remaining questions might well be framed substantially as follows: Was the danger of getting her fingers caught in the rollers so obvious that the plaintiff, considering her age and experience, should have known and appreciated it prior to her injury? If not, then did the defendant fail to give the plaintiff such warning or instruction prior to her injury as would enable a person of her age and experience, exercising ordinary care, to appreciate such danger? If the last question be answered in the affirmative, then was such failure the proximate cause of the injury? Did any lack of ordinary care on the part of the plaintiff proximately contribute to her injury? What sum will reasonably compensate the plaintiff for her injury? Walter Keena, the plaintiff's brother, who set her at work, and who testified that he was "foreman and superintendent" of the defendant company, was called as an adverse witness by the plaintiff, under section 4068, St., as amended by chapter 271, Laws 1907. His examination as an adverse witness was objected to on the ground that so much of the statute as permits the mere employé of a corporation to be examined as an adverse witness is unconstitutional under the doctrine laid down in Phipps v. W. C. R. R. Co., 133 Wis. 153, 113 N. W. 456. The objection was overruled and he was examined as if under cross-examination. All the testimony which the witness gave on this adverse examination related to the guard which had formerly been upon the machine, its construction and purpose. This testimony was entirely immaterial, because negligence in the construction of the machine was not charged, nor was the machine within the statute 1636j. As this rul ing makes it probable that it will not be desired to call the witness adversely upon another trial, it seems that it will not be necessary to decide the constitutional question raised at this time, and this court does not take up such questions unless absolutely necessary. It may be said, however, that under the Phipps' Case it seems that it is a very serious question whether the Legislature can authorize the employé of a corporation to be called and treated as an adverse witness and not authorize the employé of an individual to be so called. It would doubtless be the part of wisdom to avoid raising so serious a question except in case of absolute necessity and it appears that there will be no such necessity upon a second trial. None of the other errors claimed is deemed of sufficient importance to require attention. Judgment reversed, and action remanded for a new trial. St. 1898, § 1772, provides that no corporation shall have legal existence until the articles of incorporation, or a copy thereof, are left for record with the Secretary of State and the register of deeds of the county in which the corporation is located. Section 1773 provides that, until the directors or trustees shall be elected, have direction of the corporate affairs, and that the signers of the articles of organization shall the corporation shall not transact business with others than its members until at least half its capital stock is subscribed, and makes the signbusiness before that time, or having knowledge ers of the articles and subscribers transacting thereof, personally liable upon any obligations incurred. Held, that a manufacturing corporation became a corporation at the filing of its articles with the register of deeds and could contract from that time, and the signers of such articles had authority to manage its affairs. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 103; Dec. Dig. § 35.*] 2. EVIDENCE (§ 17*)—JUDICIAL NOTICE-DAYS OF WEEK. Where the date on which services were rensonable value of such services, the court was dered appeared in an action to recover the reabound to take judicial notice that the services were rendered on Sunday; such date being in fact Sunday. [Ed. Note. For other cases, see Evidence, Cent. Dig. § 21; Dec. Dig. § 17.*] 3. SUNDAY (§ 7*)-ACTIONS ON SUNDAY CONTRACT-PUBLICATION OF ADVERTISEMENT. Under St. 1898, § 4595, prohibiting labor, business, or working, except only works of necessity and charity, from being carried on on Sunday, a newspaper cannot recover the reasonable value of services performed on Sunday in publishing advertisements. [Ed. Note. For other cases, see Sunday, Cent. Dig. §§ 14-20; Dec. Dig. § 7.*] Appeal from Circuit Court, Milwaukee | vor of the plaintiff upon both causes of acCounty;. Warren D. Tarrant, Judge. Action by the Sentinel Company against the A. D. Meiselbach Motor Wagon Company. From a judgment for plaintiff, defendant appeals. Affirmed as modified. This action was brought on quantum meruit to recover upon two causes of action. The first cause of action was for advertising done for the defendant by the plaintiff between the 1st day of January and August, 1906, alleged to be reasonably worth $248.67. An exhibit is attached to the complaint showing the items and dates of publication. The second cause of action is based upon a claim for the manufacture and delivery to the defendant, at its special instance and request, by the Clark Engraving Company, a corporation, of engravings, plates, cuts, and drawings alleged to be reasonably worth $60.10, which it is alleged the defendant agreed to pay for, and that the claim of said Clark Engraving Company was assigned to the plaintiff prior to the commencement of this action. The exhibit attached to the complaint under the first cause of action is as follows: A. D. Meiselbach Motor Wagon Company, To advertising.. 66 20. $ 32 34 57 64 16 $248 67 The date of the last item, June 30th, was corrected on the trial without objection to read June 3d. tion for the sum of $308.77, with interest from the 30th day of June, 1906. The defendant moved that the verdict be set aside and for judgment dismissing the complaint with costs, and, in case of the denial of such mo tion, that the verdict be set aside and a new trial granted for several alleged reasons. Defendant's motions were denied, and judgment ordered for the plaintiff in accordance with the verdict, from which the defendant appealed. Perry, Morton & Kroesing for appellant. Quarles, Spence & Quarles (J. V. Quarles, Jr., of counsel), for respondent. KERWIN, J. (after stating the facts as above). The first three propositions referred to in the statement of facts, namely, the power of the defendant to incur the obligation which is the basis of plaintiff's claim, the authority of Rohde to bind the defendant, and whether he in fact did so, and whether defendant adopted the acts of Rohde, may be considered together. The articles of incorporation of the defendant were filed with the register of deeds on May 8, 1906. They were signed by A. D. Meiselbach, B. R. Godfrey, and Chas. Rohde, incorporators. Section 1772, St., provides for the filing of the articles of incorporation, or a true copy thereof, with the Secretary of State and register of deeds of the county in which the corporation is located, and further provides that "no corporation shall until such articles be left for record have legal existence." Section 1773, St., provides that "until the directors or trustees shall be elected the signers of the articles of organization shall have direction of the affairs of the corporation,” and that "no such corporation shall transact business with any others than its members until at least one-half of its capital stock shall have been duly subscribed and at least twenty per centum thereof actually paid in; and if any obligation shall be contracted in violation hereof, the corporation offending shall have no right of action thereon; but the signer or signers of the articles and the subscriber or subscribers for stock transacting such business or authorizing the same, or having knowledge thereof, consenting to the incurring of any debt or liability, as well as the stockholders then existing, shall be personally liable upon the same." The complaint also alleges that the defendant is a corporation. The answer denies the corporate existence of the defendant, and denies generally the allegations of the complaint. It was, however, admitted on the trial that the Clark Engraving & Printing Company was a corporation at the times stated in the complaint, and that the work alleged to have been performed by the Clark Engraving Company was in fact performed, and the prices charged therefor reasonable. The material controverted issues upon the trial, briefly stated, were: (1) The incorporation of the defendant at the time in question, and its power to incur the obligation; (2) the authority of one Charles Rohde to bind the defendant, and whether said Rohde Under our statutes the defendant became individually, or the defendant through him a corporation at the time of the filing of its authorized the advertisements published by articles with the register of deeds, namely, the plaintiff and the work done by the Clark May 8, 1906, and was capable from that Engraving Company; (3) whether the de- time to bind itself by contract, and the signfendant ever adopted the acts of Rohde in ers of the articles had lawful authority to the matters in question; (4) the validity of manage its affairs. Badger P. Co. v. Rose the Sentinel Sunday advertising as a basis et al., 95 Wis. 145, 70 N. W. 302, 37 L. R. A. for legal liability against the defendant; and 162. There is evidence tending to show that, (5) the reasonable value of the Sentinel ad- immediately after the articles of incorporavertising. tion of the defendant were filed with the |