Opinion
June 8, 1950 —
June 30, 1950.
APPEAL from a judgment of the circuit court for Sauk county: ALVIN C. REIS, Circuit Judge. Affirmed.
For the appellant there were briefs by Langer Cross of Baraboo, and oral argument by Clyde C. Cross and H. M. Langer.
For the respondent there were briefs by Thomas, Orr, Isaksen Werner of Madison, and oral argument by San W. Orr and Leon A. Isaksen.
Action in equity by Fitz Randolph Winslow, plaintiff, against Florence Reese Winslow, defendant, for an accounting as to money and securities in defendant's possession allegedly belonging to the plaintiff. An interlocutory judgment was entered on January 28, 1950, determining that the defendant should account to the plaintiff for money and securities intrusted to her as a fiduciary by the plaintiff. The defendant appeals from the whole of said interlocutory judgment.
Plaintiff and the defendant were married in Baraboo, Wisconsin, on October 1, 1913, and have been husband and wife since that time. Plaintiff was then, and is now, a duly licensed and practicing physician and surgeon. Prior to the marriage the defendant was engaged in business in Baltimore, Maryland, and had accumulated a substantial amount of property. At the time of said marriage plaintiff was not possessed of any cash, securities, or other property of substantial value. They resided at Baraboo from the time of the marriage until 1921, when they accepted employment in a hospital at Hayden, Arizona, where plaintiff was employed as chief surgeon of the Hayden hospital, which was operated by a copper-mining company. Defendant was employed as a nurse in said hospital, and both worked there until the end of 1931 when, after a visit to the east, they returned to Baraboo.
The defendant handled the money of both parties during the period they were in Arizona. After their return to Baraboo the plaintiff inherited property from an aunt and uncle, and from his father and mother. This property, in the form of cash and securities, was intrusted to the defendant. Defendant also surrendered and canceled an insurance policy upon the life of the plaintiff for the cash value thereof, and deposited the proceeds in her personal savings account. In 1944 and 1945 plaintiff was in the armed services and forwarded to the defendant most of his army pay.
Plaintiff did not return to Baraboo following his discharge from the army and the parties have been separated since the year 1945. Further facts will be stated in the opinion.
Interlocutory judgments are provided for by sec. 270.54, Stats., which reads in part as follows:
". . . In case of a finding or decision substantially disposing of the merits, but leaving an account to be taken, or issue of fact to be decided or some condition to be performed, in order fully to determine the rights of the parties, an interlocutory judgment may be made, disposing of all issues covered by the finding or decision, and reserving further questions until the report, verdict, or subsequent finding."
Interlocutory judgments are appealable under sec. 274.09(1), Stats. The legislative purpose in enacting these statutes was to authorize a judgment which would finally dispose of a portion of the controversy. Thus it has been held that in so far as an interlocutory judgment finally disposes of certain issues in a controversy it becomes a final judgment upon those issues. Richter v. Standard Mfg. Co. 224 Wis. 121, 271 N.W. 14, 271 N.W. 914; Kickapoo Development Corp. v. Kickapoo Orchard Co. 231 Wis. 458, 285 N.W. 354.
In this case the judge made fifty separate findings of fact and fourteen conclusions of law. The final conclusion of law reads as follows:
"14. Regardless of whether further testimony is introduced by one or both of the parties, this court reserves to itself the right to make such additional findings of fact and conclusions law prior to entering the final judgment herein, as to this court shall seem just and proper."
The provisions of the interlocutory judgment are identical with the conclusions of law, and paragraph 14 of the interlocutory judgment is a verbatim copy of paragraph 14 of the conclusions of law quoted above. Other conclusions of law are based "upon the record so far made" and "in the present state of the record." It is difficult to ascertain from this language what portions of the interlocutory judgment the trial court intended to be final determinations of issues. This is an action in equity for an accounting. Under orderly procedure the court should first determine in this case whether or not the plaintiff intrusted money and property to the defendant, whether or not he intrusted said money and property to her in a fiduciary capacity, and whether he is entitled to an accounting upon proper demand being made. The court made findings of fact as to each of these points in favor of the plaintiff.
The defendant admits that she received certain money and securities from the plaintiff but contends that she did not stand in a fiduciary relationship to the plaintiff. That part of the interlocutory judgment holding that defendant was a fiduciary in the relationship which she bore to the plaintiff at all of the times pertinent to the action is challenged on the ground that the record does not reflect that the defendant was in a position to or did exercise any superiority of influence over the plaintiff, citing language in Miranovitz v. Gee, 163 Wis. 246, 252, 157 N.W. 790, as follows:
"A fiduciary relation exists when confidence is reposed on one side and there is resulting superiority and influence on the other; and the relation and duties involved in it need not be legal, but may be moral, social, domestic, or merely personal."
The plaintiff does not quarrel with the rule of law cited, but contends that the finding of the trial court is well supported by the record. "Fiduciary relationship" is a general term that is difficult of precise definition. This is particularly so when the parties stand in a relationship one to the other of attorney and client, principal and agent, or husband and wife. In this case, as in most others, it is a question of fact to be determined by the trial court. His finding is well supported by the evidence, and the finding is affirmed.
The defendant next contends that the plaintiff's claim is barred by laches. The defendant's brief contains the following statement:
"We recognize that this court has twice refused to apply laches as between husband and wife. Fawcett v. Fawcett (1893), 85 Wis. 332, 55 N.W. 405; Hendricks v. McCormick Memorial Home (1931), 204 Wis. 277, 234 N.W. 886.
"However, in both of those cases the court was careful to point out that it was there basing its refusal to apply laches on the facts of the case before it."
There follows an attempt to distinguish between the facts in this case and the facts in the two cases cited by the defendant. The finding of the trial court in this case, that the plaintiff has not been guilty of laches with respect to the prosecution of his rights against the defendant, is supported by the evidence and it is affirmed.
The evidence on each of the above findings was in conflict, but the trial court had an opportunity to view and hear the witnesses, and his findings cannot be disturbed unless they are against the great weight and clear preponderance of the evidence.
Those findings having been made and demand being admitted, it follows that the plaintiff is entitled to an accounting. No other issues required final determination in the interlocutory judgment. Having in mind the reservations made by the trial court in the interlocutory judgment, conclude that all the other issues, even though the trial court has made findings thereon, have not been finally adjudicated and that neither party is foreclosed from offering further evidence on all of the other issues.
By the Court. — Interlocutory judgment affirmed as to the fiduciary relationship of the defendant to the plaintiff and as to the necessity of an accounting. Cause remanded for further proceedings in accordance with this opinion.