895.37(4)
(4) No contract, rule, or regulation, shall exempt the employer from this section.
895.37 History
History: 1993 a. 486.
895.37 Annotation
Fellow servant defense is not available to farm employer of child employed in violation of child labor laws. Tisdale v. Hasslinger, 79 W (2d) 194, 255 NW (2d) 314.
895.375
895.375
Abrogation of defense that contract was champertous. No action, special proceeding, cross complaint or counterclaim in any court shall be dismissed on the ground that a party to the action is a party to a contract savoring of champerty or maintenance unless the contract is the basis of the claim pleaded.
895.38
895.38
Surety, how discharged. 895.38(1)
(1) Any surety or the personal representative of any surety upon the bond of any trustee, guardian, receiver, executor, or other fiduciary, may be discharged from liability as provided in this section. On 5 days' notice to the principal in such bond, application may be made to the court where it is filed, or which has jurisdiction of such fiduciary or to any judge of such court for a discharge from liability as surety, and that such principal be required to account.
895.38(2)
(2) Notice of such application may be served personally within or without the state. If it shall satisfactorily appear to the court or the judge that personal service cannot be had with due diligence within the state, the notice may be served in such manner as the court or judge shall direct. Pending such application the principal may be restrained from acting, except to preserve the trust estate.
895.38(3)
(3) If at the time appointed the principal shall fail to file a new bond satisfactory to the court or judge, an order shall be made requiring the principal to file a new bond within 5 days. When such new bond shall be filed, the court or judge shall make an order requiring the principal to account for all of the principal's acts to and including the date of the order, and to file such account within a time fixed not exceeding 20 days; and shall discharge the surety making such application from liability for any act or default of the principal subsequent to the date of such order.
895.38(4)
(4) If the principal shall fail to file a new bond within the time specified, an order shall be made removing the principal from office, and requiring the principal to file the principal's account within 20 days. If the principal shall fail to file the principal's account as required, the surety may make and file such account; and upon settlement thereof and upon the trust fund or estate being found or made good and paid over or properly secured, credit shall be given for all commissions, costs, disbursements and allowances to which the principal would be entitled were the principal accounting.
895.38(5)
(5) The procedure for hearing, settling and allowing such account shall be according to the practice prescribed by
ch. 862 in the matter of account of executors and administrators. Upon the trust fund or estate being found or made good and paid over or properly secured, such surety shall be discharged from all liability. Upon demand by the principal, the discharged surety shall return the unearned part of the premium paid for the canceled bond.
895.38(6)
(6) Any such fiduciary may institute and conduct proceedings for the discharge of the fiduciary's surety and for the filing of a new bond; and the procedure shall in all respects conform substantially to the practice prescribed by this section in cases where the proceeding is instituted by a surety, and with like effect.
895.38 History
History: 1993 a. 486.
895.41
895.41
Employe's cash bonds to be held in trust; duty of employer; penalty. 895.41(1)
(1) Where any person requests any employe to furnish a cash bond, the cash constituting such bond shall not be mingled with the moneys or assets of such person demanding the same, but shall be deposited by such person in a bank, trust company, savings bank or savings and loan association doing business in this state whose deposits or shares are insured by a federal agency to the extent of $10,000, as a separate trust fund, and it shall be unlawful for any person to mingle such cash received as a bond with the moneys or assets of any such person, or to use the same. No employer shall deposit more than $10,000 with any one depository. The bank book, certificate of deposit or other evidence thereof shall be in the name of the employer in trust for the named employe, and shall not be withdrawn except after an accounting had between the employer and employe, said accounting to be had within 10 days from the time relationship is discontinued or the bond is sought to be appropriated by the employer. All interest or dividends earned by such sum deposited shall accrue to and belong to the employe and shall be turned over to said employe as soon as paid out by the depository. Such deposit shall at no time and in no event be subject to withdrawal except upon the signature of both the employer and employe or upon a judgment or order of a court of record.
895.41(2)
(2) In the event of the failure of any person, such moneys on deposit shall constitute a trust fund for the benefit of the persons who furnished such bonds and shall not become the property of the assignee, receiver or trustee of such insolvent person.
895.41(3)(a)(a) In case an employe who was required to give a cash bond dies before the cash bond is withdrawn in the manner provided in
sub. (1), the accounting and withdrawal may be effected not less than 5 days after the employe's death and before the filing of a petition for letters testamentary or of administration in the matter of the decedent's estate, by the employer with any of the following, in the following order:
895.41(3)(a)2.
2. The decedent's children if the decedent shall leave no surviving spouse.
895.41(3)(a)3.
3. The decedent's father or mother if the decedent shall leave no surviving spouse or children.
895.41(3)(a)4.
4. The decedent's brother or sister if the decedent shall leave no surviving spouse, children or parent.
895.41(3)(b)
(b) The accounting and withdrawal under
par. (a) shall be effected in the same manner and with like effect as if such accounting and withdrawal were accomplished by and between the employer and employe as provided in
sub. (1).
895.41(3)(c)
(c) The amount of the cash bond, together with principal and interest, to which the deceased employe would have been entitled had the deceased employe lived, shall, as soon as paid out by the depository, be turned over to the relative of the deceased employe effecting the accounting and withdrawal with the employer. The turning over shall be a discharge and release of the employer to the amount of the payment.
895.41(3)(d)
(d) If no relatives designated under
par. (a) survive, the employer may apply the cash bond, or so much thereof as may be necessary, to paying creditors of the decedent in the order of preference prescribed in
s. 859.25 for satisfaction of debts by executors and administrators. The making of payment under this paragraph shall be a discharge and release of the employer to the amount of the payment.
895.41(4)
(4) Any person who violates this section shall be punished by a fine equal to the amount of the bond or by imprisonment for not less than 10 days nor more than 60 days, or both.
895.42
895.42
Deposit of undistributed money and property by administrators and others. 895.42(1)
(1) In case in any proceeding in any court of record it is determined that moneys or other personal property in the custody of or under the control of any administrator, executor, trustee, receiver or other officer of the court, belongs to a natural person if the person is alive, or to an artificial person if it is in existence and entitled to receive, otherwise to some other person, and the court or judge making such determination finds that there is not sufficient evidence showing that the natural person first entitled to take is alive, or that the artificial person is in existence and entitled to receive, or in case such money or other personal property, including any legacy or share of intestate property cannot be delivered to the legatee or heir or person entitled thereto because of the fact that such person is a member of the military or naval forces of the United States or any of its allies or is engaged in any of the armed forces abroad or with the American Red Cross society or other body or other similar business, then in either or any of such cases, the court or judge may direct that the officer having custody or control of such money or other personal property, deposit the same in any trust company, or any state or national bank within the state of Wisconsin authorized to exercise trust powers, taking its receipt therefor, and the said receipt shall, to the extent of the deposit so made, constitute a complete discharge of the said officer in any accounting by the officer made in said proceeding.
895.42(2)
(2) In case such deposit is directed to be made, the court shall require the trust company or bank in which said deposit is ordered to be made, as a condition of the receipt thereof, to accept and handle, manage and invest the same as trust funds to the same extent as if it had received the same as a testamentary trust, unless the court shall expressly otherwise direct, except that the reports shall be made to the court of its appointment.
895.42(3)
(3) No distribution of the moneys or personal property so deposited shall be made by the depository as such trustee or otherwise without an order of the court on notice as prescribed by
s. 879.03, and the jurisdiction of the court in the proceeding will be continued to determine, at any time at the instance of any party interested, the ownership of said funds, and to order their distribution.
895.42 History
History: 1973 c. 90;
1993 a. 486.
895.43
895.43
Intentional killing by beneficiary of contract. 895.43(1)(1) Except as provided under
sub. (2), a named beneficiary of a contractual arrangement who unlawfully and intentionally kills the principal obligee may not receive any benefit under the contractual arrangement. The benefit is payable as though the beneficiary had predeceased the decedent.
Section 852.01 (2m) (b) to
(c) applies to this subsection.
895.43(2)
(2) The principal obligee of a contractual arrangement may provide in the contract, by a specific provision which includes reference to
sub. (1), that
sub. (1) does not apply with respect to a beneficiary of the contractual arrangement.
895.43 History
History: 1981 c. 228;
1987 a. 222.
895.435
895.435
Intentional killing by beneficiary of certain death benefits. 895.435(1)(1) A beneficiary who unlawfully and intentionally kills an individual may not receive any benefit payable by reason of the death of that individual. The benefit is payable as though the beneficiary had predeceased the decedent.
895.435 History
History: 1981 c. 228;
1987 a. 222.
895.437
895.437
Use of lodging establishments. 895.437(2)
(2) Any person who procures lodging in a lodging establishment and permits or fails to take action to prevent any of the following activities from occurring in the lodging establishment is subject to the penalties provided in
sub. (5):
895.437(2)(a)
(a) Consumption of an alcohol beverage by any underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age.
895.437(2)(b)
(b) Illegal use of a controlled substance or controlled substance analog.
895.437(3)
(3) An owner or employe of a lodging establishment may deny lodging to an adult if the owner or employe reasonably believes that consumption of an alcohol beverage by an underage person not accompanied by his or her parent, guardian or spouse who has attained the legal drinking age, or illegal use of a controlled substance or controlled substance analog, may occur in the area of the lodging establishment procured.
895.437(4)
(4) An owner or employe of a lodging establishment may require a cash deposit or use of a credit card at the time of application for lodging.
895.437(5)
(5) A person who violates
sub. (2) or a local ordinance which strictly conforms to
sub. (2) shall forfeit:
895.437(5)(a)
(a) Not more than $500 if the person has not committed a previous violation within 12 months of the violation; or
895.437(5)(b)
(b) Not less than $200 nor more than $500 if the person has committed a previous violation within 12 months of the violation.
895.44
895.44
Exemption from civil liability for furnishing safety inspection or advisory services. The furnishing of, or failure to furnish, safety inspection or advisory services intended to reduce the likelihood of injury, death or loss shall not subject a state officer, employe or agent, or an insurer, the insurer's agent or employe undertaking to perform such services as an incident to insurance, to liability for damages from injury, death or loss occurring as a result of any act or omission in the course of the safety inspection or advisory services. This section shall not apply if the active negligence of the state officer, employe or agent, or of the insurer, the insurer's agent or employe created the condition that was the proximate cause of injury, death or loss. This section shall not apply to an insurer, the insurer's agent or employe performing the safety inspection or advisory services when required to do so under the provisions of a written service contract.
895.44 History
History: 1991 a. 39.
895.46
895.46
State and political subdivisions thereof to pay judgments taken against officers. 895.46(1)(a)(a) If the defendant in any action or special proceeding is a public officer or employe and is proceeded against in an official capacity or is proceeded against as an individual because of acts committed while carrying out duties as an officer or employe and the jury or the court finds that the defendant was acting within the scope of employment, the judgment as to damages and costs entered against the officer or employe in excess of any insurance applicable to the officer or employe shall be paid by the state or political subdivision of which the defendant is an officer or employe. Agents of any department of the state shall be covered by this section while acting within the scope of their agency. Regardless of the results of the litigation the governmental unit, if it does not provide legal counsel to the defendant officer or employe, shall pay reasonable attorney fees and costs of defending the action, unless it is found by the court or jury that the defendant officer or employe did not act within the scope of employment. The duty of a governmental unit to provide or pay for the provision of legal representation does not apply to the extent that applicable insurance provides that representation. If the employing state agency or the attorney general denies that the state officer, employe or agent was doing any act growing out of or committed in the course of the discharge of his or her duties, the attorney general may appear on behalf of the state to contest that issue without waiving the state's sovereign immunity to suit. Failure by the officer or employe to give notice to his or her department head of an action or special proceeding commenced against the defendant officer or employe as soon as reasonably possible is a bar to recovery by the officer or employe from the state or political subdivision of reasonable attorney fees and costs of defending the action. The attorney fees and expenses shall not be recoverable if the state or political subdivision offers the officer or employe legal counsel and the offer is refused by the defendant officer or employe. If the officer, employe or agent of the state refuses to cooperate in the defense of the litigation, the officer, employe or agent is not eligible for any indemnification or for the provision of legal counsel by the governmental unit under this section.
895.46(1)(am)
(am) If a court determines that costs are awardable to an employe or official who has been provided representation by a governmental unit under
par. (a), the court shall award those costs to the unit of government that provided the representation.
895.46(1)(b)
(b) Persons holding the office of county sheriff on March 1, 1983, are covered by this subsection. This subsection covers other county sheriffs who have:
895.46(1)(b)1.
1. Satisfactorily completed or are currently enrolled in the preparatory program of law enforcement training under
s. 165.85 (4) (b) 1. and, if applicable, the recertification programs under
s. 165.85 (4) (bn) 1., or have provided evidence of equivalent law enforcement training and experience as determined by the law enforcement standards board; or
895.46(1)(c)
(c) This subsection does not apply to any action or special proceeding brought by a county against its county sheriff if the action or proceeding is determined in favor of the county.
895.46(1)(d)
(d) On and after March 1, 1983, all persons employed as deputy sheriffs, as defined in
s. 40.02 (48) (b) 3., are covered by this subsection. The county board shall adopt written policies for payments under this subsection on behalf of any other person, provided that person has satisfied the minimum standards of the law enforcement standards board, who serves at the discretion of the sheriff as a law enforcement officer as defined in
s. 165.85 (2) (c), and the county may make the payments upon approval by the county board.
895.46(1)(e)
(e) Any nonprofit corporation operating a museum under a lease agreement with the state historical society, and all officers, directors, employes and agents of such a corporation, and any local emergency planning committee appointed by a county board under
s. 59.54 (8) (a) and all members of such a committee, are state officers, employes or agents for the purposes of this subsection.
895.46(2)
(2) Any town officer held personally liable for reimbursement of any public funds paid out in good faith pursuant to the directions of electors at any annual or special town meeting shall be reimbursed by the town for the amount of the judgment for damages and costs entered against the town officer.
895.46(3)
(3) The protection afforded by this section shall apply to any state officer, employe or agent while operating a state-owned vehicle for personal use in accordance with
s. 20.916 (7).
895.46(4)
(4) The protection afforded by this section applies to members of the board of governors created under
s. 619.04 (3), members of a committee or subcommittee of that board of governors, members of the patients compensation fund peer review council created under
s. 655.275 (2) and persons consulting with that council under
s. 655.275 (5) (b), with respect to judgments, attorney fees and costs awarded before, on or after April 25, 1990.
895.46(5)
(5) The protection afforded by this section applies to any of the following:
895.46(5)(a)
(a) A volunteer health care provider who provides services under
s. 146.89, for the provision of those services.
895.46(6)
(6) The protection afforded by this section applies to any criminal action under
s. 144.74 (2) [291.97 (2)] or
144.93 (2) [293.87 (2)] or under
7 USC 136L (b),
15 USC 2616 (b),
33 USC 1319 (c),
42 USC 2284,
6928 (d) and (e),
6973 (b),
6992 (b) and (c),
7413 (c),
9603 (b),
9606 (b) and
11045 (b) or 49 USC appendix 1809 (b) that is commenced against a state officer or state employe who is proceeded against in his or her official capacity or as an individual because of acts committed in the storage, transportation, treatment or disposal of hazardous substances, as defined in
s. 289.01 (11), if that officer or employe is found to be acting within the scope of his or her employment and if the attorney general determines that the state officer or state employe acted in good faith. Regardless of the determination made by the attorney general, the protection afforded by this section applies if the state officer or agent is not found guilty of the criminal action commenced under this subsection. This protection includes the payment of reasonable attorney fees in defending the action and costs or fines arising out of the action.
895.46 Note
NOTE: The bracketed language indicates the correct cross-references. Corrective legislation is pending.
895.46(7)
(7) The protection afforded by this section does not apply to any law enforcement officer of another state acting in Wisconsin under an agreement authorized under
s. 175.46.
895.46(8)
(8) The protection afforded by this section applies to any owner of land within a drainage district established under
ch. 88 who undertakes work on a drain if the work is approved by the drainage board.
895.46 History
History: 1973 c. 333; Sup. Ct. Order, 67 W (2d) 585, 761 (1975); Stats. 1975 s. 895.45;
1975 c. 81,
198,
199; Stats. 1975 s. 895.46;
1977 c. 29;
1979 c. 74,
221;
1981 c. 20;
1981 c. 96 s.
67;
1981 c. 314 s.
136;
1983 a. 6;
1983 a. 27 s.
2202 (32);
1985 a. 29,
66;
1987 a. 342;
1987 a. 403 s.
256;
1989 a. 31,
115,
187,
206,
359;
1991 a. 245,
269;
1993 a. 27,
28,
49,
238,
456,
490;
1995 a. 201,
227,
411.
895.46 Cross-reference
Cross-reference: See s.
775.06 for special procedure applying to state law enforcement officers.
895.46 Annotation
Highway commission supervisors who were responsible for the placement of highway warning signs may be sued if a sign is not placed in accordance with commission rules. They cannot claim the state's immunity from suit. Chart v. Dvorak, 57 W (2d) 92, 203 NW (2d) 673.
895.46 Annotation
"Litigation" under sub. (1) refers only to civil proceedings. Sheriffs are not "public officers" under sub. (1), 1981 stats. Bablitch & Bablitch v. Lincoln County, 82 W (2d) 574, 263 NW (2d) 218.
895.46 Annotation
Policy behind (1) discussed. Thuermer v. Village of Mishicot, 86 W (2d) 374, 272 NW (2d) 409 (Ct. App. 1978).
895.46 Annotation
Public employes' insurer had no right of recovery under s. 270.58 (1), 1969 stats. Horace Mann Ins. Co. v. Wauwatosa Bd. of Ed. 88 W (2d) 385, 276 NW (2d) 761 (1979).
895.46 Annotation
State could not be sued as indemnitor under s. 270.58 (1) [now s. 895.46 (1)]. Fiala v. Voight, 93 W (2d) 337, 286 NW (2d) 824 (1980).
895.46 Annotation
State may not be sued directly for tortious acts of its employes. Miller v. Smith, 100 W (2d) 609, 302 NW (2d) 468 (1981).
895.46 Annotation
"Color of law" element of 42 USC 1983 lawsuit is not identical to "scope of employment" element under (1). Cameron v. Milwaukee, 102 W (2d) 448, 307 NW (2d) 164 (1981).
895.46 Annotation
Question of whether aldermen were acting within scope of employment was inappropriately decided by summary judgment. Schroeder v. Schoessow, 108 W (2d) 49, 321 NW (2d) 131 (1982).
895.46 Annotation
Once governmental unit decides to provide counsel, it must provide complete and full representation on all issues. Beane v. City of Sturgeon Bay, 112 W (2d) 609, 334 NW (2d) 235 (1983).
895.46 Annotation
Sub. (1) applied to forfeiture action against police officer. Crawford v. City of Ashland, 134 W (2d) 369, 396 NW (2d) 781 (Ct. App. 1986).
