895.37 History
History: 1993 a. 486.
895.37 Annotation
The fellow servant defense is not available to a farm employer of a child employed in violation of child labor laws. Tisdale v. Hasslinger,
79 Wis. 2d 194,
255 N.W.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 the principal's account shall be according to the practice prescribed by
ch. 862 for personal representatives. Upon the trust fund or estate being found or made good and paid over or properly secured, the 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;
2001 a. 102.
895.41
895.41
Employee's cash bonds to be held in trust; duty of employer; penalty. 895.41(1)
(1) Where any person requests any employee 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 employee, and shall not be withdrawn except after an accounting had between the employer and employee, 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 employee and shall be turned over to said employee 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 employee 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 employee 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 employee's death and before the filing of a petition for letters testamentary or other letters authorizing the administration 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 employee 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 employee would have been entitled had the deceased employee lived, shall, as soon as paid out by the depository, be turned over to the relative of the deceased employee 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 of the cash bond 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 personal representatives. 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)(a)(a) In this subsection, "trust company" means any trust company or any state or national bank in this state that is authorized to exercise trust powers.
895.42(1)(b)
(b) If 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 personal representative, 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, and otherwise to some other person, and the court finds any of the following, the court may direct the officer having custody or control of the money or property to deposit the money or property with any trust company:
895.42(1)(b)1.
1. 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.
895.42(1)(b)2.
2. That the money or other personal property, including any legacy or share of intestate property, cannot be delivered to the person entitled to the money or property because the 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 similar business.
895.42(1)(c)
(c) Any officer depositing money or property with a trust company under
par. (b), shall take the trust company's receipt for the deposit. The receipt shall, to the extent of the deposit, constitute a complete discharge of the officer in any accounting made by the officer in the 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.
895.43
895.43
Intentional killing by beneficiary of contract. The rights of a beneficiary of a contractual arrangement who kills the principal obligee under the contractual arrangement are governed by
s. 854.14.
895.435
895.435
Intentional killing by beneficiary of certain death benefits. The rights of a beneficiary to receive benefits payable by reason of the death of an individual killed by the beneficiary are governed by
s. 854.14.
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 employee of a lodging establishment may deny lodging to an adult if the owner or employee 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 employee 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, employee or agent, or an insurer, the insurer's agent or employee 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, employee or agent, or of the insurer, the insurer's agent or employee 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 employee 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.
895.44 Annotation
A "written service contract" is a contract that obligates the insurer to provide loss control services to an insured. Samuels Recycling Co. v. CNA Insurance Cos.
223 Wis. 2d 233,
588 N.W.2d 385 (Ct. App. 1998).
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 employee 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 employee 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 employee in excess of any insurance applicable to the officer or employee shall be paid by the state or political subdivision of which the defendant is an officer or employee. 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 employee, 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 employee 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, employee 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 employee to give notice to his or her department head of an action or special proceeding commenced against the defendant officer or employee as soon as reasonably possible is a bar to recovery by the officer or employee 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 employee legal counsel and the offer is refused by the defendant officer or employee. If the officer, employee or agent of the state refuses to cooperate in the defense of the litigation, the officer, employee 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 employee 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, employees 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, employees 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, employee 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 injured patients and families 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. 291.97 (2) or
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 5124 that is commenced against a state officer or state employee 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 employee 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 employee 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(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 Wis. 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;
1997 a. 35;
1999 a. 185;
2003 a. 111.
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 are 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 Wis. 2d 92,
203 N.W.2d 673 (1973).
895.46 Annotation
"Litigation" under sub. (1) refers only to civil proceedings. Bablitch & Bablitch v. Lincoln County,
82 Wis. 2d 574,
263 N.W.2d 218 (1978).
895.46 Annotation
Mandatory payment under sub. (1) did not apply to an official who was sued for illegally retaining his salary due to an alleged failure to comply with the statutory requirements for a bond and oath of office. The official was not acting in his official capacity when filing the bond or taking the oath or in defending a related suit. Thuermer v. Village of Mishicot,
86 Wis. 2d 374,
272 N.W.2d 409 (Ct. App. 1978).
895.46 Annotation
An insurer of public employees had no right of recovery under s. 270.58 (1) [now s. 895.46 (1)] Horace Mann Insurance Co. v. Wauwatosa Board of Education,
88 Wis. 2d 385,
276 N.W.2d 761 (1979).
895.46 Annotation
The state could not be sued as an indemnitor under s. 270.58 (1) [now s. 895.46 (1)]. Fiala v. Voight,
93 Wis. 2d 337,
286 N.W.2d 824 (1980).
895.46 Annotation
The state may not be sued directly for the tortious acts of its employees. Miller v. Smith,
100 Wis. 2d 609,
302 N.W.2d 468 (1981).
895.46 Annotation
The "color of law" element of 42 USC 1983 lawsuit is not identical to the "scope of employment" element under sub. (1). Cameron v. Milwaukee,
102 Wis. 2d 448,
307 N.W.2d 164 (1981).
895.46 Annotation
Whether alderpersons were acting within the scope of their employment was inappropriately decided by summary judgment. Schroeder v. Schoessow,
108 Wis. 2d 49,
321 N.W.2d 131 (1982).
895.46 Annotation
Once a governmental unit decides to provide counsel, it must provide complete and full representation on all issues. Beane v. City of Sturgeon Bay,
112 Wis. 2d 609,
334 N.W.2d 235 (1983).
895.46 Annotation
Sub. (1) applied to a forfeiture action against a police officer. Crawford v. City of Ashland,
134 Wis. 2d 369,
396 N.W.2d 781 (Ct. App. 1986).
