*1 a cases which the owner of involving steps “In those statute, liable under the was held building safe-place public considerable has been to the matter of whether weight given or not such of a steps were ‘integral part’ concededly pub- lic Where the were not attached to the build- building. steps it has been held that did not constitute ‘structure’ ing, they within the of the statute.” safe-place meaning

In the instant case not were only where steps plain- tiff fell attached to the all physically but building except bottom were inclosed on three step sides the church struc- ture. The fact that the out from pilasters projected the walls of the we consider to be building wholly immaterial because such constituted of the pilasters part We, church structure. therefore, hold that such were steps part public building within the statute. meaning safe-place

By Court.—Order reversed, and judgment and cause remanded with directions to enter an order overruling demurrer amended complaint.

City Respondent, vs. Appleton, Appellant. Sauer, January

December 1956. *3 there For the a Susteren, was brief Van appellant by Bol Kopish lenbeck & and oral Appleton, argument Urban P. Van Susteren. there a brief

For was oral respondent and argument Don L. Jury, city attorney. The first question presented determina- Steinle, J. tion whether the instant order is appealable. This is a action to a civil recover forefeiture for of a violation munici- ordinance, the rules civil Osh pal procedure apply. 601, 772; v. N. kosh 255 Wis. 39 W. Lloyd (1949), (2d) South Milwaukee v. Schantzen Wis. (1950), N. W. 628. (2d) Stats., 274.33, : provides part

Sec. made the court orders when may “The following . . court: . to the supreme appealed continues, or refuses, modifies grants, When “(3) . .. remedy. supplied.]” a provisional [Italics Stats., 269.57, provides part: Sec. thereof, court, due notice or a may, judge “(1) other, shown, order either party give cause time, ... in his of property

within specified his relating control evidence containing or under possession ... If with proceeding. compliance to the action or special refused, from the court exclude paper the order or both. in evidence or punish refusing, party being given supplied.]” [Italics 1, N. 33 W. (2d)

In Hudson Graff an order held that defendant requiring was 269.57, Stats., sec. certain books and docu- under produce examination, for the plaintiff’s inspection ap- ments as an order 274.33 (3) granting pealable case, 2 in the At opinion remedy. page provisional it was said: Northern Co-op. court said in Tobacco “As *4 586, 592, 923,— Oleson, 211 N. 191 Wis. W.

Poolv. “ . . . 269.57) sec. provides 4183 (now provi- ‘Sec. such an order is sec. under appealable remedy, sional 274.33, sub. (3).’ has been considered established rule since

“That Orton, 386; v. 28 Ellinger Equitable v. Wis. Noonan Life 643, 648, 104 N. W. 811.” Society, Assur. an whether order or The question granting refusing 269.57, Stats., sec. is requested appealable inspection is not to be confused with an order which refuses to limit or an adverse examination suppress scheduled pursuant 326.12; sec. The an adverse examination is granted court, statute and not so that an order limit or refusing adverse suppress examination does not or continue grant provisional remedy.

It is manifest that the drunk-o-meter is relevant to the and is controversy within “property” purview Stats., 269.57 (1), permits inspection property. The term is “property” to that of analogous “thing.” Sec. 4096, at the time when Horlick’s Malted Milk Co. A. 201, Spiegel Co. 144 N. W. was decided, for the provided at an production adverse examina books, hies, “all records, tion of papers, things, and matters in the of an adverse possession” In party. construing the statute, word as in the used “things” court in that case said : 216) part (p. “The claim of the plaintiff that these were questions for the reason that a to a civil improper action is party an order for entitled to of real or personal prop- in the erty of possession in the opposing party absence statute, and that sec. which provides for the pro- books, hies, records, duction of ‘all papers, things, and mat- ters . . . bemay compelled . . subpoena, does not include We think physical objects. the construction of coun- contents, sel too narrow. The jars under the issues raised were complaint, doubtless among most matters the case. important The fact that were they objects did not physical exclude them from the terms of the . . . statute. of the in purpose statute is to get inspection books, of the evidence hies, contained records, and If the things. things, namely, jars contents, were relevant come controversy, within they the terms of the statute.”

The order of the court under attack here was appealable. *5 Evidence, its use of such as was obtained city bar, at at in the case is admissible the drunk-o-meter that the is of record to indicate city trial. There nothing in this mat- intend the evidence obtained not to present does Stats., in part: ter. 85.13 provides Sec. trial of action or any proceeding arising Upon

“(4) to been committed person of acts have by any out alleged while the in- for motor vehicle operating arrested intoxicants, the court admit fluence of evidence in the ... as amount of alcohol defendant’s blood shown breath, or chemical of such defendant’s medical analysis blood, .urine, or of this saliva. For section: purposes was, at the that there time five hundredths of Evidence (a) less, blood, cent or of alcohol in his one is per weight that evidence the defendant was not in intoxi- prima facie condition; was, time, that cated evidence there at the (b) than five of one cent less more hundredths than per evidence, of one cent . .' fifteen hundredths . is relevant per not to . prima .; but effect . evidence given (c) facie was, time, that there at fifteen one the. hundredths of per more, blood, cent or in his of alcohol 'shall be by weight admitted as that the prima evidence defendant was in facie condition, not, an intoxicated but shall without corroborating evidence thereof be sufficient physical find the defendant guilty under the influence of intoxi- being cants.” entitled, the defendant Sauer was not

It cannot said law, to which he inspection sought. Sec. as a matter of Stats., that the court 269.57, may grant provides inspec- An application property this kind. tion of addressed the discretion of the trial 269.57 under sec. law. The trial guided by sound discretion judge’s judge—a that the defendant effect was entitled statement under either sec. 269.57 or device an inspection state, statute or law of other 326.12, any or under that there existed no opinion that he was indicates limit, or suppress on his part grant, inspec- authority *6 tion. In such the court acted regard under a mistaken view law, of the and there was error. Churchill v. Welsh 39, 54, 55, 1 N. W. 398. The court possessed power to exercise a sound discretion with reference to the petition. failed in such Plaving the order particular, reversed, must be and the cause remanded with direction that the trial court exercise his limit, discretion and grant, or the deny applica- tion. Should in a petition granted or general limited manner, then, were of the compliance court’s order refused the court city, with might exclude propriety as evi- dence the trial reference to any the device or its use defendant, the condition of the testing or con- punish by or both. tempt process,

By reversed, Court.-—-Order and cause for remanded further proceedings accordance with law. C. I do not

Fairchild, {dissenting). with the agree J. announced in the majority opinion. proceedings do not to us a matter over which bring we have appellate First, the jurisdiction. holds that the court opinion below did recognize duty imposed refused to exercise conferred. I cannot that a.power get interpretation with, from the decision record. To begin petition recites: Susteren, P. Van “Urban first oath, sworn being duly on and says: deposes That he is the

“(1) for the attorney defendant in the above-entitled action. That he has been “(2) advised and believes verily that took certain tests plaintiff of the defendant’s breath by

means of a device commonly known as a ‘drunk-o-meter’ at the time that the defendant was in jail after his ar- shortly rest. That he is

“(3) informed and verily believes that the de- fendant intends to utilize the results of those tests as evidence the trial of this on action. of the accuracy That the has no defendant knowledge

“(4) or and does not have complete said device dependability itsof knowledge working principles. defendant, That the in order to for

“(5) attorney examine, for trial considers prepare properly, necessary test, and with the so-called ‘drunk-o-meter’ experiment was used in the made. tests were city Appleton That of ob- is made affidavit

“(6) purpose cause, if to show any taining requiring plaintiff have, it should why the said ‘drunk-o-meter’ with together the chemicals and used in the tests that were appurtenances defendant, made on the should not be made available and his defendant chemists such other attorney experts, including as the defendant desire physicians might and/or *7 for the of purpose and testing.” inspection not at the of relevant aimed and securing The request material testimony. the as now held if the order is appealable, by

Secondly, we should examine the we have jurisdiction, and majority, the the merits. decide matter upon record and con- from is that the order appealed appears Thirdly, It is on evidence a final order. merely sidered as a final order. is not and two: If there has been arbitrary one and objections

As to 269.57, Stats., with sec. refusal to comply unwarranted and in could here by proceeding matter only presented the instance, for as is followed proceeding, mandamus—such an affi- refuses to consideration to give when a trial judge occa- we have no timely presented davit of prejudice —-and the results. The should be examine dismissed. appeal sion to hand, a matter if this is to be reviewed on other On the should, as has been examine the suggested, we record appeal, the of the determining a decision matter. render and the be then no occasion cause remanding There would court, result review the trial might for further another appeal.

As to the third with to objection respect appealability order, of the I believe the practice designed by legislation 269.57, Stats., should be treated with. enacting defendant was arrested with drunken on charged driving 28, 1954, November for the defendant attorney stating in an that certain affidavit tests had been taken of the de- fendant’s breath means of a device known as commonly drunk-o-meter, á and that he desired of the drunk-o-meter, said with the together chemicals and appur- tenances used in the tests that were made on the defendant. to show cause On hearing granted the trial accordingly, ruled as court follows: heard the having arguments counsel

“The court and determines and premises, advised finds that fully being examination, to is not entitled the defendant inspection, (a) trial, of the drunk-o-meter device used prior testing defendant, to test the Sauer, Harold Appleton the city by under of section 269.57 of the Wisconsin provisions defendant not entitled statutes; and to exami- (b) trial, nation, of the testing prior drunk-o- inspection, defendant, used to test the plaintiff device meter Sauer, of section provisions 326.12 Harold statutes; and that the defendant is en- (c) Wisconsin examination, trial, inspection, testing titled prior device under other the drunk-o-meter statute or any law of the state Wisconsin.”

The statute under which seeks appellant to his press ap- in this court not afford him does the peal of right appeal. the statute a trial court rule may Under the upon relevancy of the information the to issue of document or property However, the asked for. opposite refuse party may to an- or with the direction swer made at that time. comply At in the there is no final proceedings order to point appeal There has been but a from. on evidence. ruling To permit an from mere on ruling evidence and appeal recognize order would fix a as time for appealable on appeal number-

623 of evidence and relevancy on the admissibility less rulings of not law. by any in warranted provision and result delays from a just there be an to say may appeal Are we not from one made just immediately trial starts and before the when, in an statement is opening after the jury empaneled im- and counsel, maybe attention is called to interesting the interest of the adverse affect may testimony portant 269.57, Stats., reads: Sec. party? thereof, notice court, due and upon or a judge may, “The other, shown, to to the within either party give

cause time, and of or property inspection a specified docu- take a books and any to copy or permission copy his control in his or under possession containing ments or the action or proceeding may to relating special evidence clerk the books with the or documents deposit require at the trial. compliance their require production and may If court exclude the paper refused, with the order refusing, evidence or punish party being given from or both.” (Emphasis supplied.) of refusal That statute leaves consequences produce at exclusion of the evidence or the testimony punishment from No is for. head contempt. appeal provided Quoting Fire Police and Comm. Clancy *9 immediate, as is the such right reject testimony upon refusal. This of the discussion phase may pointed up 438, reference to Cousins v. Schroeder 169 Wis. (1919), 172 N. W. 953. That case arose out failure of a trust a situation where the of a company creating likelihood great deal of of the litigation depended upon banking commissioner to refuse to disclose certain information in his The case was to the possession. circuit court as presented there was a refusal on the of the commissioner part banking awith direction of the court. comply follow- Immediately answer, refusal to commenced, ing were contempt proceedings and the matter in a short time reached the court for supreme determination. A somewhat similar situation arose in the case ex rel. of State St. v. Mary’s Industrial Hospital Comm. 516, 250 Wis. 27 N. W. In that (1947), 478. case (2d) Schroeder, this court the cases of Cousins v. approved supra; Milwaukee Co. v. Corrugating Flagge (1920), 492, 777, 175 N. W. Hyslop Hyslop 291 N. W. which cases held that orders re- examinations, to the of adverse lating taking since they are not merely regulate procedure, appealable.

There is circumstance or situation no covered in the stat- utes which can take the reasonably matter out of the field make evidence and on the of the presentation document a final and order. As appealable already suggested, is not the first time the confusion over this procedure has been called to attention of the court and bar. It that too often the suggested habit of the bench and bar is to look to cases rather than the statutes for principles until regulating attention is procedure directed some cir- cumstance arising during argument to fixed principles certain legislation regulating matters and particularly court. appeals supreme When the legislature has enacted constitutional regulation it is the procedure, rule and should be people, the consideration given it de-

625'; *10 I on the cases Mr. Chief serves.- rely especially Justice Those and Mr. Wickhem cited above. Winslow Justice cases are outlined in the headnotes as follows:

Milwaukee v. supra: Co. Corrugating Flagge, or an “1. An order to adverse suppress prohibit refusing 4096, Stats., a examination sec. is not as under appealable a in a final order substantial made right special affecting 3069, an under sub. sec. since adverse proceeding, (2), examination not a v. Wis. Phipps is ‘special proceeding.’ 279, Conlan, R. Karel Cent. Co. 130 Wis. v.

221, overruled. an a

“2. Nor is such order as one continuing appealable under sec. since such sub. remedy provisional an to order does not ‘continue’ the mere refusal remedy by interfere with it.”

Hyslop Hyslop, supra: “1. An examination is a but remedy, adverse provisional Stats., 326.12, a sec. is one as matter of course it granted hence no order of the court can be considered appealable on the that such under sec. 274.33 (3) ground grants remedy. provisional an “2. An order adverse examination refusing suppress an that it continues a not order on ground appealable an an order remedy, limiting scope provisional examination is not order on ground adverse appealable a since such that it refuses or modifies provisional remedy, examination and on the orders merely regulate procedure which the adverse on operate provisional remedy do constitutes. examination An order the defendant’s motion to

“3. denying compel certain to answer on adverse exami- questions the plaintiff re- in a action is not as an order nation divorce appealable a or modifying provisional remedy.” fusing It is to be noted that the examination principles governing trial before with the same force to party apply at the trial to books and party produce compulsion their This accounted which origin, papers. for a bill of discovery. is the procedure original equitable 2042. The ed.), p. Evidence Jones, (2d See final There of a order. the elements does not have ruling the ruling a the adverse keeps is left choice in party evidence, as and so the field of long the limits of within be, there is no con and continues a on evidence has been entered or the a final clusive act until judgment the court in proceeding has been into brought matter refusing testify. a substantial right person protect occasion for recognizing There is no more in this than the circumstances referred to case appeal *11 the instance of affidavit party filing there would refusal a trial and his give against judge of prejudice In such an instance there is no final due consideration. from, and the is under remedy superintending appeal the form of under mandamus. Ap proceeding control 412, 41 N. W. Alloway (1950), (2d) plication of 360. should dismissed. appeal

It is my opinion notes N. “When the law creates a 138 W. situation, to meet a new such is exclusive remedy new remedy and limitations conditions subject imposed . . . The appeal purely statutory, the legislature. has been left is withheld.” procedure and if given so it as to reduce the trial judge manage possibility one, as a dis In viewing question practical of delay. of that nature can be procedure examinations covery as to avoid intended to delays conducted prevented so and final orders under judgments appeals by limiting 274.33, Stats. the merit of the evidence testing As to promptness are direct and contempt proceedings to produce, refusal