TION-ASSESSMENT-REVIEW.

The decision of a city board of review cannot be impeached except for jurisdictional error. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 2085, 2086; Dec. Dig. § 974.*1

TION -
TION.

ASSESSMENT

5. MUNICIPAL CORPORATIONS (§ 974*)-TAXAREVIEW-JURISDICWhile a city board of review has no jurisdiction to set aside an assessment where there was no evidence to impeach it, it has jurisdiction to sustain the assessment if there is any evidence which reasonably justifies it in do

ing so.

[Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. § 2086; Dec. Dig. § 974.*]

Appeal from Superior Court, Douglas County; Charles Smith, Judge.

Proceedings by the State, on the relation of the M. A. Hanna Dock Company, against R. F. Willcuts, City Clerk of the City of Superior, to review a decision of the Board of Review of such city. From a judgment of the superior court reversing the decision, defendant appeals. Reversed and remanded, with directions to enter judgment affirming the decision of the Board of Review.

Action to test the validity of a decision of the board of review of the city of Superior, Wis.

4. MUNICIPAL CORPORATIONS (§ 974*)-TAXA- [ the railway company but was the property of tion-the assessor, in making his annual asthe coal company and so liable to local taxasessment assessed to respondent, as the value of the coal which was omitted as aforesaid for the year 1908, $96,000. In due course objection was made to such assessment before the board of review. Upon the hearing in that regard, respondent introduced in evidence the assessment roll for 1908, showing the assessment to respondent as aforesaid, and purporting on its face to be an assessment of all its property of the class in question, assessable for such year. In that situation it was claimed that the assessor was incompetent to testify to facts showing how he came to make the assessment for 1909 as for property omitted in 1908, because the effect of the later year, contrary to section 1063, thereof would be to impeach the assessment St. 1898. On behalf of the assessor's position it was claimed that section 1059, St. 1898, as amended by chapter 490, Laws 1909, requiring the assessor in making his assessment for any year to assess for each of the three preceding years any property omitted from the assessment for any of such years, and chapter 371, Laws 1907, relieving the assessor from the duty of acting as member of the board of review, and substituting therefor the duty to attend the meeting of the board, when desired, and submit to examination under oath, respecting his assessment, repealed section 1063, aforesaid, to the extent necessary for him to perform such duties. The board of review so held and the assessor, under oath, explained, in detail, substantially as before stated, how he came to make the assessment complained of. The general effect of his evidence was that in making the assessment of 1908, he estimated the number of tons of soft coal found in respondent's possession and determined that about 60,000 tons thereof was of the class which had been held by the circuit court not assessable for local taxation and assessed the remainder only, placing on account thereof upon the assessment roll $66,500 as the value of merchants' and manufacturers' stock assessable to the dock company. There was other evidence in support of the assessment, tending to show that the dock company had in its possession and assessable for 1908, the amount of coal claimed by the assessor. The dock company neglected to produce any proof to the contrary, except as aforesaid, and, in effect, refused to make any statement respecting the amount of coal it had on its dock at the time the assessment of 1908 was made.

On

In 1907, the assessor of Superior assessed the Pittsburg Coal Company on account of coal on its dock, denominated railway coal. Such proceedings were taken in respect to the matter that the circuit court for Douglas county decided that the property was exempt from local taxation because of its being, in fact, owned and for use by a railway company in the operations of its road. The question at the bottom of the litigation was whether, under transactions which had occurred between the railway company and the coal company, the title to the coal yet remained in the latter, although the property was called railway coal. appeal the judgment of the circuit court was reversed, it being thus finally decided that the real owner of the coal was the coal company. In 1908, after the decision in the circuit court and before that on appeal, the assessor was called upon to assess such coal as the respondent had on its dock in Superior, except such as was exempt. It had, in a common mass, a large quantity of coal of the character which had been held by the circuit court, as aforesaid, exempt from local taxation, and a large quantity which was conceded to be not so exempt. The assessor estimated that the latter portion of the common mass was of the value of $66,500, and Upon the case thus made, the objection by entered that amount on his roll as the value the dock company was overruled. The proof merchants' and manufacturers' stock, as- ceedings in that regard were duly carried by sessable to respondent. In 1909-it having writ of certiorari to the superior court for been decided that coal having the status of Douglas county for review, resulting in a the so-called railway coal was not owned by judgment reversing the decision of the board

of review. This appeal is taken from such assessment was otherwise sustained. judgment.

R. I. Tipton and T. L. McIntosh, for appellant. Luse, Powell & Luse, for respondent.

The

oral evidence on the subject was not confinof the dock company to offer any evidence of ed to that of the assessor, while the failure the amount of coal it had in 1908, and refusal to make any disclosure in that regard, left it in an exceedingly weak position regardless of the assessor's evidence.

ing him to testify under oath before the board of review respecting all matters relating to his assessment, by necessary implication, repealed section 1063, St. 1898, so far as performance of the new statutory duties would otherwise be interfered with. There is no more familiar rule relating

which conflict, than that, so far as they cannot reasonably be both given full effect, the later statute is to be regarded as having been intended to supersede the earlier one. Kellogg v. City of Oshkosh, 14 Wis. 623; Bohlman v. Green Bay & M. R. Co., 40 Wis. 157; Northwestern Mut. Life Ins. Co. v. Drown, 51 Wis. 419, 8 N. W. 237; Wisconsin Central R. Co. v. Cornell University, 52 Wis. 537, 8 N. W. 491; Smith v. Eau Claire, 78 Wis. 457, 47 N. W. 830.

MARSHALL, J. (after stating the facts as above). The judgment of the superior court must be reversed for reasons which very However, we cannot escape the conclusion clearly require that result. that the statutory requirement for the asCounsel for respondent cite Allwood v. Cow-sessor to assess in one year property omiten, 111 Ill. 481, as holding, under a similar ted the previous year, and the one requirlaw, that where the assessor determines a question of fact as to the value of a certain class, or certain articles of property, such determination is of a judicial nature and not subject to review by him a subsequent year, so as to permit him to make a further assessment on account of the same property upon the theory that his previous determination to the construction together of two statutes was too low. It is sufficient for now that we have no such case before us. If the assessor had determined in 1908, that the dock company had 80,000 tons of coal and that the assessable value thereof was $66,500, doubtless he could not have assessed to it an additional amount on account of such coal the next year, upon the pretext that the first assessment was too low. That would have been radically different than what in fact took place; an actual omission to assess the greater part of the coal upon the mistaken The decision of the board of review was notion that it was not subject to local taxa-unimpeachable except for jurisdictional ertion. Counsel has not advanced any reason ror. State ex rel. Milwaukee Medical Colwhich appeals to our minds why such omit- lege v. Chittenden, 127 Wis. 468, 107 N. W. ted coal was not assessable in 1909 under 500; State ex rel. City of Augusta v. Losby, section 1059, St. 1898. Clerk, etc., 115 Wis. 57, 90 N. W. 188. The board had undoubted jurisdiction over the subject-matter, by express provision of the written law. It, as clearly, had jurisdiction to decide, upon evidence produced, whether the facts existed or not rendering the assessment complained of justifiable. It had no jurisdiction to condemn the assessment without evidence to impeach it, and, as we have seen, there was none. To have condemned it under the circumstances would have been jurisdictional error in favor of the dock company. Assuming that there was some evidence impeaching the assessment, the board had jurisdiction to sustain it, if there was any evidence which in any reasonable view of it, justified that course. State ex rel. City of Augusta et al. v. Losby, supra. So in any view we can take of the case, no jurisdictional error was committed by the board and its decision should have been affirmed instead of reversed.

The claim that the board of review committed jurisdictional error in overruling appellant's objection to the assessment, in face of the prima facie case, if there were such, against the assessment, made by introducing the roll of 1908, rests wholly on the theory that the evidence of the assessor explaining the situation was incompetent under section 1063, St. 1898. If his evidence was competent it would not be contended, for a moment, but that the board decided the question presented to it without jurisdictional error, so far as presence of evidence bearing on the question at issue was concerned. It is conceded, as we understand it and as the fact is, that the record of the assessment of 1909, by itself, made a prima facie case in favor of the work of the assessor. State ex rel. Giroux v. Lien, 108 Wis. 316, 84 N. W. 422; State ex rel. Heller v. Fuldner, 109 Wis. 56, 85 N. W. 118. There was no evidence against it except the assessment roll of 1908 which was conclusively explained in harmony with the assessment objected to, if the assessor's evidence was proper or the

The judgment of the circuit court is reversed, and the cause remanded with directions to enter judgment affirming the decision of the board of review.

BUGGS v. ROCK COUNTY SUGAR CO. (Supreme Court of Wisconsin. Oct. 25, 1910.) 1. MASTER AND SERVANT (§ 278*)—INJURIES TO SERVANT-NEGLIGENCE EVIDENCE.

In an action for injuries to a servant by the explosion of a sugar evaporator, evidence held to sustain a verdict finding that defendant was negligent in allowing an explosive gas to be and remain in the evaporator while plaintiff was working on or repairing it.

[Ed. Note.-For other cases, see Master and Servant, Dec. Dig. § 278.*]

2. RELEASE (§ 58*)-VALIDITY MENTAL CAPACITY.

EXECUTION

Whether a servant' had sufficient mental capacity to comprehend the nature and import of his act when he signed a release from liability for the injuries sustained for a mere nominal consideration held for the jury.

[Ed. Note.-For other cases, see Release, Cent. Dig. §§ 109-114; Dec. Dig. § 58.*]

Winslow, C. J., and Marshall, J., dissenting.

Appeal from Circuit Court, Rock County; George Grimm, Judge.

Action by August G. Buggs against the Rock County Sugar Company. Judgment for plaintiff, and defendant appeals. Affirmed.

Among the references cited upon the part of the appellant were the following: Hyer v. Janesville, 101 Wis. 371, 77 N. W. 729; Chybowski v. Bucyrus Company, 127 Wis. 332, 106 N. W. 833, 7 L. R. A. (N. S.) 357; Jackowski v. Illinois Steel Company, 103 Wis. 448, 79 N. W. 757; German Bank v. Muth, 96 Wis. 342, 71 N. W. 361; Schiefelbein v. Fidelity, etc., Co., 139 Wis. 612, 120 N. W. 398; Steffen v. Supreme Assembly, etc., 130 Wis. 485, 110 N. W. 401; Kowalke v. Milwaukee E. R. & L. Co., 103 Wis. 472, 79 | N. W. 762, 74 Am. St. Rep. 877; Chafin Will Case, 32 Wis. 557; Will of Silverthorn, 68 Wis. 372, 32 N. W. 287; McMaster v. Scriven, 85 Wis. 162, 55 N. W. 149, 39 Am. St. Rep. 828; Cutler v. Cutler, 103 Wis. 258, 79 N. W. 240; Gavitt v. Moulton, 119 Wis. 35, 96 N. W. 395; Trieloff v. Muellenschlader, 128 Wis. 364, 107 N. W. 652; Henderson v. McGregor, 30 Wis. 78.

v. M., L. S. & W. Ry. Co., 56 Wis. 325, 14 N. W. 452; Sheanon, Ex'r, v. Pacific M. L. I. Co., 83 Wis. 507, 53 N. W. 878; Lord v. Am. Mut. A. A., 89 Wis. 19, 61 N. W. 293, 26 L. R. A. 741, 46 Am. St. Rep. 815; Mensforth v. Chicago B. Co., 142 Wis. 546, 126 N. W. 41, 512; Ludington v. Patton, 111 Wis. 208, 86 N. W. 571.

Jeffris, Monat, Smith & Avery, for appellant. J. J. Cunningham (Wm. Ruger, of counsel), for respondent.

TIMLIN, J. In this action for personal injury, the defendant was charged in the complaint with negligence causing such injury, consisting of carelessly managing and operating an evaporator in a sugar factory so that a large amount of explosive gas was generated and confined therein until the same exploded; also, negligently setting the plaintiff to work on the generator without warning or instructing him of the presence of such gas, the liability of the generation of such gas, or the dangers incident to his work. The jury found the defendant guilty of negligence in caring for and managing the evaporator which exploded, the plaintiff free from contributory negligence, and that the negligence of the defendant was the proximate cause of plaintiff's injuries. On this appeal the defendant contends that a nonsuit should have been granted, and that there is not sufficient evidence to support the verdict, and that there was an accord and satisfaction shown. A motion for a new trial on the part of defendant was made and overruled, and this ruling is also assigned as error.

On September 20, 1907, the defendant corporation, preparing its factory to begin for the ensuing season the manufacture of beet sugar, had in the main building of its factory on the second floor in front of the entrance a battery of four large evaporators. These large evaporators were about 15 feet long, 7 feet wide, and 12 feet high to the top of the dome. They were made of a shell of cast iron about seven-eighths of an inch thick, had wood casing on the outside, a hollow interior in which were numerous brass tubes of about one inch diameter passing lengthwise through the evaporator and connecting with a steam chest at the end. In operation these steam chests and brass tubes contained live steam. The remaining portion of the interior space in the evaporator is called the juice chamber and in operation is partially filled with prepared beet

Among other references upon the part of the respondent were the following: Kirst et al. v. Milwaukee, L. S. & W. Ry. Co., 46 Wis. 489, 1 N. W. 89; Cummings v. National F. I. Co., 60 Wis. 603, 18 N. W. 742, 20 N. W. 665: Spille v. Wisconsin B. & I. Co., 105 Wis. 340, 81 N. W. 397; Lipsky v. C. Reiss Coal & C. Co., 136 Wis. 307, 117 N. W. 803; Oberndorfer v. Pabst, 100 Wis. 513, 76 N. W. 338; Smith v. Smith, 60 Wis. 329, 19 N. W. 47; Henrizi v. Kehr, 90 Wis. 344, 63 N. W. 285; Blohowak v. Grochoski, 119 Wis.juice, which is vaporized by heat from the 189, 96 N. W. 551; O'Brien v. C. & N. W. R. steam in the brass tubes and steam chest. Co., 92 Wis. 340, 66 N. W. 363; Maxon v. To facilitate this operation and cause the Gates, 136 Wis. 270, 116 N. W. 758; Fergu- beet juice to boil at a lower temperature, an son v. Truax, 136 Wis. 637, 118 N. W. 251; air pump operated by steam from the boiler Schultz v. Railway Co., 44 Wis. 638; Wat- room some distance away is connected with kins v. Brant, 46 Wis. 419, 1 N. W. 82; Voell that part of the juice chamber above the v. Kelly, 64 Wis. 504, 25 N. W. 536; Bussian beet juice. By action of this air pump the

the interior of the evaporator, or whether there was a shut-off. After repairing the glass indicator on evaporator No. 2, it was found necessary to repair the same device on evaporator No. 3. The plaintiff was in the machine shop and received instructions to fit up what he calls a nipple for this indicator on evaporator No. 3 by cutting one out of a pipe about 8 or 10 inches in length and putting a screw thread on it. Having this nipple prepared, plaintiff and one Berger went to put it on the evaporator, taking with them a pipe wrench. It was to be inserted into evaporator No. 3 about 10 inches from the bottom. The old nipple that had been in there was out. There were some screw threads left in the place the old nipple was taken from; that is, the opening in the side of the evaporator into which this nipple was screwed. Plaintiff started to insert with the wrench the new nipple into this opening, and it went in very hard. He used both hands on the wrench, and while he was doing this an explosion took place by which evaporator No. 3 was blown to pieces, Berger was killed, and the plaintiff severely injured.

superincumbent air is exhausted, and the, whether this connected at all times with juice is consequently boiled or vaporized in a vacuum. In order to have this vacuum the juice chamber must, of course, be air tight at every point. In this operation sediment forms in these evaporators and on the outside of the steam tubes. This sediment, according to the witness Prof. Kahlenberg, consists of various salts of calcium, oxalated calcium, silicate of calcium, and other more complicated salts which form a hard crust on the tubes in the evaporator. This crust by reason of its minor conductivity for heat retards or prevents the operation of the evaporator. It is necessary to remove this crust. The usual method is to put a quantity of soda into the juice chamber, pour in water, and boil this mixture, which has the effect by combination with the crust on the tubes or in the evaporator to change it to calcium carbonate. A weak solution of muriatic acid and water is thereafter poured into the juice chamber, and thereby a soluble salt known as chloride of calcium is formed, which is thereafter washed away with water. Carbonic acid gas is liberated in this process, and hydrogen gas is generated from the contact of the solution of muriatic acid in water with the iron and perhaps other metals in the interior of the evaporator. This hydrogen gas is explosive by ignition when mixed with air. It is also exploded by a high degree of heat. Whether it may be exploded by detonation is not shown, and so far as we know is not sufficiently established as a scientific fact for this court to take judicial notice thereof. Hydrogen gas is perhaps the lightest known gas, lighter than air, consequently will ascend, but has the property of diffusion common to all gases, and when first generated would remain at or toward the top of this juice chamber, but would diffuse downward and mix with the air.

Beginning two or three days prior to September 20, 1907, the defendant was engaged in cleaning the evaporators in question by this chemical process or some modification thereof. The evidence seems to show that the soda, muriatic acid, and water were all put in together, and to fail to show whether or not this mixture was boiled. The plaintiff began carrying soda and muriatic acid, put some into other evaporators, but did not put any into that by the explosion of which he was injured. There was competent and sufficient evidence, however, for the jury to infer that all the evaporators were cleaned, and that all were treated alike, and that all were washed out with water after the process mentioned. But there was no steam on at the time of the explosion. After the acid was in, covers were put on the manholes and the interior made tight apparently. A glass gauge on the side of each evaporator, connected with the juice chamber at the top and at the bottom and about 3 feet long,

From the foregoing it will be seen that this chemical process of cleaning the interior of the evaporator is an ordinary and well-known process, no doubt subject to modifications in detail in particular plants. That dangerous explosive gases are thereby generated is or ought to be well known to those employing such methods. Prof. Kahlenberg testifies: "It is absolutely certain that hydrogen will be formed when this solution of acid is in contact with iron. There is never any circumstances or any time when it will not form when so in contact." Doubtless conditions may exist in the interior of the generator, or modifications of the chemical method of cleaning may be employed, which will greatly facilitate the formation of this gas and increase the volume of gas formed and the rapidity with which it is formed. When conditions exist which cause the transformation of solid or liquid matter into aëriform matter within a confined space, there may be a bursting of the containor without a true explosion. This is sometimes popularly called an explosion, as in the case of a steam boiler, a wine cask, or a wine bottle bursting. A jury would be unable to say that this occurred in the instant case because it appears that there was an opening for the insertion of the nipple into the interior of the juice chamber in which the gas was generated or was in process of generation. This, if true, would negative mere bursting. Real explosions are caused by heat, ignition, or detonation. These words sufficiently describe causes and processes. No sufficient evidence of heat to the required degree to cause explosion is shown. No evidence of actual ignition or of detonation is produced. Ignition

The friction is shown to have occurred, but the presence of those substances which may be ignited by friction is not shown. But the fact of explosion is evidence from which the occurrence of either cause not negatived by evidence may be inferred by the jury. The explosion is prima facie evidence that there was ignition or detonation because these are the remaining causes of explosions. We have to deal here with a matter of circumstantial evidence. That the explosion was caused by the negligence of a fellow servant is negatived. The explosion was of course instantaneous. What was done by all the servants engaged in the work is detailed and described, and nothing contrary to the usual procedure was done by either to cause or produce the explosion. The negligence of the master did not consist in causing the explosion. The negligence of the master consisted in producing and permitting to remain in the generator this dangerous gas at any moment liable to explosion from either of the causes mentioned. The friction of screwing in the nipple might cause ignition, especially if there was grit of some kind in the socket.

was the duty of the plaintiff or his fellow servant to start this pump. We conclude that the question of defendant's negligence upon these facts was for the jury.

After the explosion the plaintiff was found lying between the evaporators under a large piece of iron, and he was unconscious. When Dr. Gibson arrived at the factory shortly after the time of the accident, he found Dr. Edden there and found the plaintiff lying on a table or bench unconscious, Dr. Edden working at him trying to stop hemorrhage. They dressed his wound, took out a piece of the malar bone near the left eye, opened up the wound, bandaged his head, and took him to the hospital. Dr. Gibson with Dr. Edden attended him then for a period of about 10 days. He testifies that he never tried to see how much mental ability the plaintiff had during this time; it was not a proper thing for one to do to a man in that condition. The plaintiff himself testifies that he has no recollection of being at the hospital at all, nor of anything that took place there. The brother and sister of the plaintiff who visited him at the hospital described his condition while at the hospital and after his reWe conclude that there was evidence from turn to his sister's house. His sister who which the jury might find that the defend- visited him at the hospital was permitted to ant was negligent in allowing this explosive see him for the first time five or six days gas to be and remain in the generator while after the explosion, and she went to the hosthe plaintiff was working upon and repairing|pital every day afterward while the plaintiff the generator. The defendant seems to have was there except two days. When she first taken no pains to ascertain whether or not saw him he could not see her. He had little this gas had formed and remained in the gen- strength, and for two weeks after he got erator. It has offered no evidence to rebut home he moaned and showed signs of agony. the natural inference from the explosion. It Immediately upon his return home they had is said that the interior of the generator de- to repeat things over to him, and he would scribed as the juice chamber was washed say he did not know what was said or unout with water after the muriatic acid had derstand what they were saying. Dr. Pembeen poured in. The evidence is very meager ber, who first treated the plaintiff on the on this point. If the whole cavity was filled 10th of October, found a fracture of the upwith water, that would necessarily exclude or per part of the malar bone with the removal drive out the gas; if not, but the water was of part of it and an inflammation that exmerely run through at the bottom of the tended to all parts of the left eye and dejuice chamber, it would have no such effect. stroyed the eye. On October 10th, accordIf the water is not run through in sufficient ing to this witness, the plaintiff was dazed, quantity to wash away all the acid and to stupid, and did not comprehend well. His check the formation of gas which had al- mind worked slowly, his physical condition ready begun, it would have no such effect. was bad, his face was emaciated, and his The evidence does not establish the extent eye red, inflamed, and very painful. The or the effect of this washing, and the evi- doctor also testified that for two or three dence does establish from the fact of ex- weeks after he first had charge of the plainplosion that the gas was there after the wa- tiff the latter did not have perception, memter was run through. There is no evidence ory, and judgment enough to transact imthat on these particular generators there ex-portant business. The plaintiff was confined isted any devices other than the air pump to to his bed at the hospital until September relieve the generator of the gases likely to be 28th. On September 29th or 30th his brother formed in this process of cleaning, nor that the brought him some clothes, and from that plaintiff or his fellow workmen knew aught time he walked around in the hall and out about the generation of gases produced by of doors for a few days. On the 1st of Octothis process. There is also evidence tending ber he said to Dr. Edden, who was present atto show that it is customary after this chem- tending him as physician employed by the ical treatment to start up the air pump and defendant, that he wanted to leave the hosby the operation of this pump withdraw all pital, did not like it there and wanted to go gases from the interior of the evaporator, and home and wanted to get his brother because this was not done at the time in question. It he had no money to pay the hospital fees.