60 Wis. 480 | Wis. | 1884
In an action for negligence, if the plaintiff1 can prove his case without disclosing his own contributory-negligence, then such contributory negligence is purely a matter of defense to be proved by the defendant. Randall v. N. W. Tel. Co., 54 Wis., 147; Hoth v. Peters, 55 Wis., 405, and cases there cited. The same rule prevails in the supreme court of the United States and many of the states. See cases cited in Abbott’s Trial Ev., 595. The burden of' proving- such contributory negligence being ordinarily upon the defendant, there would seem to be no objection to his affirmatively alleging a fact which he may thus be required to prove.
The complaint and answer in this case embrace at least
The burden of proving the first and second of these issues was upon the plaintiffs. The burden of proving the third was upon the defendant.
The order expressly precludes any examination as to any “facts essential to the support of the plaintiffs’ case, and to be primarily established by them as necessary to a recovery.” This, of itself, would seem to bar the defendant from such examination as to any subject pertinent to either the first or second issue above named. But if there be any doubt as to the meaning of the language quoted, it would seem to be wholly eliminated by the fa.ct that the order expressly limits the examination “to such subjects as may be material to the defendant's case:" provided, however, that such examination upon such subjects shall not be permitted to extend “ into an investigation of the facts which occurred at the time of the injury.” By “ the defendant’s case ” was clearly meant the “ contributory negligence ” alleged in the answer, and sought to be established by the proposed examination in question. The effect of the order was, therefore, to limit the examination “to such subjects” of contributory negligence, if any, as were not involved in “ an investigation of the facts which occurred at the time of the injury.” As the only contributory negligence alleged in the answer was such as occurred “at the time” of the injury, it is very evident that the order, in effect, precluded the defendant from any examination whatever.
Was the court thus authorized by sec. 4096, R. S., to bar the examination ? It is urged with much skill and ability, in effect, that the statute furnishes a substitute for the old bill of discovery, and that the examination under it cannot
The old bill of discovery was commonly used in aid of the jurisdiction of some other court. 2 Daniell’s Oh. Pr., 1556. Sometimes it could only be filed by leave of the court, and, under some circumstances, other conditions were imposed. Id., 1557, 1558. It was not a matter of strict right, but depended upon a case being made coming within the proper discretionary powers of the court. The cumbersome nature of the proceeding finally led to statutory enactments, even before legal and equitable jurisdiction were vested in the same court. The English cases cited by counsel for the plaintiffs each arose under an act of Parliament passed in 1854, which provided, in effect, that in all cases in any of the superior courts, by order of the court or a judge, and upon a proper showing, the opposite party might be required to answer written interrogatories propounded in the ordinary way, “upon any matter as to which discovery may [might] be sought,” provided such party would be liable to be called and examined as a witness upon such matter. 40 Statutes at Large, 451, oh. 125, secs. 51, 52. Of course, under that statute, the courts necessarily held that the examination would only be ordered in cases -where such discovery would have been given in equity under the old practice, and then only where such adverse party would have been liable to be called and examined as a witness upon such matter. The cases, therefore, are distinguishable from one which comes under an entirely different statute.
So the cases cited from Massachusetts by counsel for the plaintiffs, were each under a statute of that state, to the effect that either party might file “ interrogatories for the
By the New York Code, before the recent changes, an. action for discovery under oath, in aid of the prosecution or defense of another action, was prohibited, and the examination of a party, “ on behalf of the adverse party,” was only allowed in the manner therein prescribed. Wait’s Code, 1871, sec. 389. Under sec. 390 of that Code, a party to an action might have been examined as a witness, at the instance of the adverse party, and for that purpose might have been “ compelled, in the same manner and subject to the same rules of examination as any other witness, to testify either at the trial, or conditionally, or upon commission.” Instead of being had at the trial, the examination might have been had, upon a proper showing and the requisite notice, at any time before the trial, at the option of the party claiming it, unless, for good cause shown, the judge otherwise ordered. Id., sec. 391. Such examination, under that section, was frequently h.eld in New York to be a matter of right. On the other hand, such examination was also held to be a substitute for the former remedy by bill of discovery, and that the court only had power to allow such examination in a case where a bill of discovery would previously have been sustained in equity.
In this confused state of the authorities in New York, which we have no purpose of attempting to reconcile or
In this state a bill for discovery was abolished, and provisions made for compelling an adverse party to testify at or before the trial, by secs. 54, 55, ck. 137; R. S. 1858. Under those sections, as' amended, it was in effect held, in Blossom v. ludington, 32 Wis., 212, that, where the adverse party was examined before trial, such examination might be properly ordered upon written interrogatories, settled in advance. By sec. 4090, R. S., the party examining was expressly authorized “in all cases” to examine “on oral interrogatories.” The same is true with the section as amended by ch. 194,
It seems to us that the object of our statute, as it now
Perhaps there maybe cases where the pleadings have been served, and yet the issues are so indefinite that it may be necessary to define by such order more definitely what the issues are, and the general scope of the inquiry; but such limitation should not, in any event, be carried to the extent of narrowing the real issues, and thus prevent disclosure of any matters of substance relevant to the controversy. This court has already held that the scope of such examination may be as broad as that on cross-examination. Stuart v. Allen, 45 Wis., 160; Cleveland v. Burnham, ante, p. 16. To hold, as urged, that such examination must be limited to cases where discovery might have been had in equity under the old practice, would be, as it seems to us, a perversion of the statute as it now exists. It would be the interpolation of an exception not warranted by the letter or spirit of the statute. An expression of mine, inadvertently made in Cleveland v. Burnham, supra, not cited by counsel, might lead to such an inference. It was there said that “ the statute merely regulates a former remedy.” The question here presented was not there discussed by counsel, nor considered by the court, as I now remember. The use of the word “ merely,” in the opinion, was not called for by anything in the case, and the court is not, but the writer hereof is alone, responsible for its misuse. It would have been more accurate to have said, as Mr. .Justice Orton did say, in Stuart v. Allen, supra, that “such an examination of a party before trial is strictly a statutory proceeding.” Such is substan
By the Court.— The order of the circuit court is reversed, and the cause is remanded for further proceedings according to law.