Last year we began a series of posts on intriguing and sometimes exotic century-old cases. Whether the facts now feel antiquated, the disputes distant, or the reasoning curious—something in these cases summons an earlier age. Along with matters of marriage and divorce (reserved for a separate post), the court issued rulings on a diverse array of provocative or otherwise fascinating topics for us to sample, including Prohibition, forced confessions, pasteurization, World War I, and baseball on Sundays.
A very young chauffeur
(Schmidt v. Wisconsin Sugar Co., 175 Wis. 613)
In 1919 the Wisconsin Sugar Company hired an 11-year-old boy, Fred Schmidt, as the chauffeur for a company car. One day, while Schmidt was performing these duties, his car collided with a passenger train, and he was killed.
The boy’s estate sought damages from the company, asserting that Schmidt’s employment was dangerous and proscribed by a child-labor statute. Justice Walter Owen’s dissent argued that it was indeed dangerous (and therefore a violation of child-labor law) to allow an 11-year-old to drive a car, but his colleagues on the bench gave no indication that they regarded this as surprising, let alone troubling.
Finding in favor of the company, Justice Franz Eschweiler’s majority opinion noted that the child-labor statute’s long list of “dangerous” activities—off limits to minors—did not mention driving an automobile. This seemed reasonable, he explained, for “the automobile as a vehicle cannot be placed in the category of instrumentalities like locomotives or such a substance as dynamite or other dangerous contrivances and agencies.” To be sure, Wisconsin generally did prohibit children under the age of 16 from driving cars, Justice Eschweiler acknowledged, but the ban did not apply when an adult was present in the vehicle, as was the case here. He did not share Justice Owen’s dissenting concern that a chauffeur five years under the legal driving age was too young.
Children and dynamite
(O’Brien v. Fred Kroner Hardware Co., 175 Wis. 238)
The rear portion of a hardware store in La Crosse was dilapidated. Broken windows had not been repaired, and an unlocked door opened onto a vacant area where children often played. One day in October 1919 a group of children, including 13-year-old Adena Hopkins, entered the rear of the store to explore the refuse and boxes that had accumulated there. One of these boxes held tin containers of dynamite caps, two of which Adena took home.[1] Later, at his grandmother’s house, he began playing with the unfamiliar objects, picking at them with a hatpin. He died in the resulting explosion.
His mother brought a negligence suit against the store, adding that the boy’s father was dead and that she would have been entitled to the boy’s earnings until he came of age. The store maintained that the mother had not stated a sufficient cause of action, but the circuit court in La Crosse ordered that the suit could proceed—an order affirmed by the supreme court.
Justice Franz Eschweiler’s majority opinion not only concluded that the question of negligence merited a hearing in court; he drew attention to the fact that Adena was not yet 14 years old, thus placing him “within the period of life during which the common law, still unchanged in this state, has declared he is entitled to the presumption that there is a want of sufficient understanding or mental capacity to form a criminal intent.” Questions of theft or trespassing did not apply here, in other words, as one could not assume “criminal intent on the part of the boy Adena of violating any penal statute in removing the tin containers from the wooden box.”[2]
Prohibition’s reach
(Alby v. Smith, 178 Wis. 138)
A Wisconsin prohibition statute distinguished between “intoxicating” and “non-intoxicating” “liquors.” The latter included various fruit juices, sodas, and root beers with less than 0.5% alcohol. Although these “non-intoxicating” drinks were not banned altogether, certain restrictions limited their sale—and a Milwaukee saloon owner encountered one such constraint. His establishment featured a standing bar where customers had gathered before Prohibition to consume alcoholic beverages. Now, he was informed, the bar violated the state’s prohibition statute, even for the sale of “non-intoxicating” drinks. He filed a complaint, which both the circuit court and the supreme court rejected.
Writing for the majority, Justice Walter Owen held that the state clearly possessed the authority to regulate the sale of “non-intoxicating” beverages as one means of hindering traffic in stronger drinks. This included the ban on standing bars, mentioned specifically in the prohibition statute.
“We must bear in mind,” Justice Owen explained, “that the function of this legislation was to firmly but considerately usher out the old-time saloon. It was known that many of these places would thenceforth be devoted to the sale of non-intoxicating liquors by the old proprietors; that for a time at least they would be patronized by their old-time customers, from whom would come constant importunities for intoxicating liquors, presenting strong temptation to violate the law prohibiting the sale of such liquor.” And, “[e]veryone knows that the highstanding bar shields the action of the bar-tender who stands behind the bar, making it entirely possible for him to introduce intoxicants into so-called soft drinks.”
But … if some juices and sodas contained small amounts of alcohol—making them “non-intoxicating liquors”—should the prohibition statute regulate a child’s lemonade stand or a booth at a local fair? At this point, Justice Owen threw up his hands: “These questions are not easily answered. It is difficult to exclude them from the express terms of the statute. On the other hand, it is difficult to conceive that the legislature had them in mind in enacting this legislation, the primary purpose of which was to prohibit the traffic in intoxicating liquors. We shall not attempt to answer these questions until we are squarely faced with them and until someone who has an interest in their solution is before the court.”[3]
Extracting confessions
(Lang v. State, 178 Wis. 114)
On the night of August 14, 1920, Charles Pacini was shot dead in Kenosha. Several weeks later, with the Pacini murder still unsolved, the police arrested Frank Lang in connection with the robbery of a saloon. After hours of questioning at the police station, he confessed to the robbery, and then to dozens more, and finally, at 4:30 in the morning, to the murder of Pacini.
At Lang’s murder trial, the state presented his confession, which the judge submitted to the jury despite the defense’s protest that the confession had been extracted under duress. This objection formed the heart of Lang’s appeal to the supreme court. He claimed that the police had beaten him with clubs at length and on multiple occasions to obtain confessions—first regarding the robberies and then the murder. Lang’s assertions gained support from photographs taken of his body two days after his confession and by testimony from two doctors who examined Lang and found bruising on his shoulders, arms, back, and buttocks.
All of this persuaded the justices, prompting them to grant Lang a new trial. Violence or the threat of violence made confessions unreliable and violated the constitutional privilege against self-incrimination, observed the unanimous majority, which directed a scathing rebuke at the police and prosecutors: “The officers in charge of the prisoner on that night did not seem to realize that they were living in the twentieth century. In order to secure what they called a confession they adopted methods which might have been approved in the seventeenth century, when, on confessions procured by torture, persons were imprisoned and executed as witches, and when in state trials prisoners obnoxious to the ruling monarchs or their servants were condemned because, on the rack or under the lash, they had confessed their guilt.”
The shadow of World War I
(Woods v. Standard Acc. Ins. Co., 166 Wis. 504)
In August of 1915 (a year and a half before the United States entered the First World War) Dr. Edmund Woods joined other passengers on the English steamship Arabic, bound from Liverpool to New York. Sixty miles off the coast of Ireland, a German submarine’s torpedo struck the Arabic below the waterline, sinking it within six minutes. Although most of the passengers and crew managed to escape in lifeboats, at least one lifeboat could not free itself from the Arabic, and its passengers were either sucked under with the ship or cast into the ocean. Eventually, the body of Dr. Woods, clad in a life-preserver, washed up on the coast of Ireland.
Dr. Woods had an accident insurance policy whose exclusions included injury or death “from firearms of any kind or from explosives.” When his estate filed a claim, the insurance company denied coverage, contending that the torpedo’s explosion obviously caused Dr. Woods’ death. This failed to persuade the supreme court, which ruled that Dr. Woods was not killed directly by an explosion but by drowning subsequently. Writing for a unanimous majority, Justice James Kerwin concluded that “[t]he fair inference to be drawn from the evidence is that after the Arabic was struck Mr. Woods adjusted upon himself a life-preserver, got into a life-boat, and by some accident thereafter was drowned. There is no evidence that he was injured by contact with any explosive or any object displaced or put in motion by the explosive.”
Pasteurization
(Pfeffer v. Milwaukee, 171 Wis. 514)
Current disputes over such things as vaccines and fluoridation had precursors. For instance, in 1920 a group of milk dealers challenged a Milwaukee ordinance that required pasteurization of milk, arguing that pasteurized milk was less healthy than “natural” milk and that, as an invalid exercise of police power, the ordinance violated their rights.[4]
The supreme court rejected these assertions, noting the ease with which pathogens contaminated milk and threatened public health. “Scientific knowledge concerning these facts and the best method of pasteurizing milk for human use in course of production and distribution as a pure and wholesome food is so generally understood and known that courts take judicial notice of these facts.” Widely used and demonstrably effective, pasteurization was “not subject to the objection that it is an untried and unpracticed scheme as alleged by the complainants.”
Thus, the Milwaukee Common Council was fully justified in adopting the ordinance to protect the population. The measure was neither “unreasonable” nor “oppressive,” concluded Justice Robert Siebecker’s majority opinion, and it was not “prejudicial to the private rights and property interests” of the milk dealers.[5]
No baseball on Sundays
(Kremsreiter v. Boddenhagen, 169 Wis. 515)
The Boddenhagens leased some land to a group including a man named Bernhardt who proceeded to erect a fence around the land and turn it into a baseball park for minor-league games. This generated a complaint from neighbors that the fence cut off access to their property—and then a cross-complaint from Bernhardt against the Boddenhagens, seeking damages of $5,000 if the fence were removed because that would render the grounds useless as a baseball park. The circuit court ordered that part of the fence be dismantled and that Bernhardt receive $750 from the Boddenhagens in damages for lost revenue from the property.
At the supreme court, the Boddenhagens challenged the award of $750 to Bernhardt, and the justices agreed that no clear damages had been demonstrated. Justice John Winslow’s unanimous opinion pointed out that other factors, apart from the removal of fencing, undermined the field’s suitability for baseball, and teams had eventually stopped playing there. (One problem resulted from a neighbor angered about balls hit into his garden.)
Moreover, continued Justice Winslow, even if one could show that the field’s loss of profitability stemmed entirely from taking down the fence, Bernhardt’s damages claim would fail because nearly all the baseball revenue came from games played on Sundays. This was a direct breach of the so-called “Sunday Law” which prohibited a wide variety of entertainments and sports on that day of the week.[6] Therefore, “[p]rofits made on Sundays from a violation of the Sunday law cannot form any legal basis for the estimate of damages.”[7]
[1] The supreme court’s decision noted that claims differed as to whether the box containing the dynamite caps was stored just inside or outside the building. But this was not a decisive point.
[2] Justice Marvin Rosenberry dissented but did not author an opinion.
[3] For additional misgivings, see the dissent by Justice Franz Eschweiler.
[4] The ordinance stated: “All milk hereafter sold in the city of Milwaukee, except certified milk and inspected milk, shall be pasteurized by either the holding or the flash system.”
[5] Justice Franz Eschweiler’s one-paragraph dissent suggested that he felt the effectiveness of pasteurization was still open to question: “[A] person so challenging such an ordinance should have an opportunity to do so upon due hearing and with the opportunity to offer testimony from those who have acquired expert knowledge in such particular field of scientific knowledge.”
[6] Here is the text of Wisconsin Statute § 4595 (the “Sunday Law”) from around the time of this case: “Any person who shall keep open his shop, warehouse, or workhouse, or shall do any manner of labor, business, or work, except only works of necessity and charity, or be present at any dancing or public diversion, show or entertainment, or take part in any sport, game, or play on the first day of the week [Sunday], shall be punished by a fine not exceeding ten dollars; and such day shall be understood to include the time between the midnight preceding and the midnight following the said day, and no civil process shall be served or executed on said day.”
[7] I am much indebted to Heidi Yelk, Deputy Law Librarian at the Wisconsin State Law Library, for her extensive research on Wisconsin’s longstanding blue laws. She found them included in Wisconsin’s 1849 statutes in the same sweeping form as applied in this case from 1919, and she followed them down to their repeal in 1933. For decades thereafter, she noted, more limited examples of Sunday restrictions surfaced (on boxing exhibitions and automobile dealerships, for instance), but occasional efforts to revive more comprehensive blue laws were unsuccessful.
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