Schmidt v. Menasha Wooden Ware Co.

| Wis. | Mar 10, 1896

Piitoey, J.

The statute (sec. 4096, S. & B. Ann. Stats.) secured, as therein provided, to the plaintiff, the right to make the proposed examination as to any matter relevant to the controversy indicated in her affidavit, and she was entitled to have it any time after the commencement of the action and before judgment. The affidavit required by the statute for the examination before issue joined is to limit the scope of the inquiry to facts relevant to the points stated in it, and to enable the court or judge, in his discretion, to still further limit the subjects to which the examination shall extend. Here the court absolutely and unconditionally denied the proposed examination, upon the ground, as we understand, that it was not necessary to enable the plaintiff to frame her complaint, and that with the knowledge of the matters stated in the affidavit her attorney might frame one that would suffice, though general in its terms.

The statute is a remedial and highly beneficial one, and has very properly been liberally construed. Kelly v. C. & N. W. R. Co. 60 Wis. 480" court="Wis." date_filed="1884-05-15" href="https://app.midpage.ai/document/kelly-v-chicago--northwestern-railway-co-6604422?utm_source=webapp" opinion_id="6604422">60 Wis. 480; Cleveland v. Burnham, 60 Wis. 21; Nichols v. McGeoch, 78 Wis. 360" court="Wis." date_filed="1890-12-16" href="https://app.midpage.ai/document/nichols-v-mogeoch-8183556?utm_source=webapp" opinion_id="8183556">78 Wis. 360; Whereatt v. Ellis, 65 Wis. 643; Frawley v. Cosgrove, 83 Wis. 443. If the plaintiff 'does not know the facts in detail, so as to enable her attorney to frame a complaint adapted to the real nature of the ■case, she may have an examination as to the facts bearing upon the question of the defendants’ negligence or other material points such as will enable him to frame a complaint suited to the case, and upon which she can safely proceed to trial. It is no answer to the application to say that upon the facts already known a complaint may be framed which may or may not present the real merits of her case. She has a right to ascertain by such examination whether the imputation of negligence is wTell founded, and, if so, the particular circumstances and details of it. As was well said in Richards v. Allis, 82 Wis. 513: “ If a party does not know whether another OAves him or has collected any money belonging to him, and therefore cannot make such an averment in a complaint, he may bring his action by the service of a summons, and then proceed to examine the- opposite party under sec. 4096, R. S., and obtain such discovery thereof as will enable him to plead.” It may be that upon .examination of the defendants the plaintiff will find that there is no ground for charging the defendants with fault, and expensive litigation may thus be avoided. The proceeding is one calculated to further the ends of justice and lessen the expense and remove embarrassments in the way of a bona fide prosecution of legal rights; and it ought not to be unduly hampered or restricted.

It appears that the deceased was an employee of the defendant company, working under its superintendent, JVoble. He was entitled to be furnished with a suitable and safe place in which to work. He lost his life in such service, and under circumstances not presumptively within the plaintiff’s knowledge, and in respect to which it appears she is actually ignorant. It is eminently just that she should be allowed the means of ascertaining whether any breach of duty or negligence On the part of the defendants, or either of them, was the cause of his death, and, if so, in what it consisted, and all material facts having any proper relation thereto. While the court, in the exercise of its discretion, might properly limit the subjects of inquiry, it ought not to have absolutely denied the plaintiff the proposed examination.

By the Court.— The order of the circuit court is reversed, and the cause is remanded for .further proceedings according to law.