Culligan, Inc. v. Rheaume

• Decision Date: 07 December 1954
• Parties: CULLIGAN, Inc., a corporation, Respondent, v. William RHEAUME et al., Appellants.
• Court: Wisconsin Supreme Court

Page 279

67 N.W.2d 279

268 Wis. 298

CULLIGAN, Inc., a corporation, Respondent, v. William RHEAUME et al., Appellants.

Supreme Court of Wisconsin.

Dec. 7, 1954.

Rehearing Denied Feb. 8, 1955.

Muchin & Muchin, Manitowoc, Welsh, Trowbridge, Wilmer & Bills, Green Bay, for appellants.

Clark, Rankin & Nash, Manitowoc, for respondent.

CURRIE, Justice.

The order here appealed from was entered pursuant to sec. 269.57(1), Stats., which provides in part as follows:

'The court, or a judge thereof, may, upon due notice and cause shown, order either party to give to the other, within a specified time, an inspection of property or inspection and copy or permission to take a copy of any books and documents in his possession or under his control containing evidence relating to the action or special proceeding or may require the deposit of the books or documents with the clerk and may require their production at the trial. * * *' (Italics supplied.)

The first contention advanced by counsel for the defendants is that the italicized word 'or' appearing in the above quoted statute is to be given its ordinary meaning of a disjunctive particle rather than to be construed to mean 'and'. In line with this contention it is argued that the trial court under the statute may either grant the plaintiff an inspection of the records or he may require the deposit of such records with the clerk of the court and their production at the trial, but cannot require both the inspection and the deposit with the clerk as was directed to be done in the order entered in the instant case.

In considering this issue due consideration must be given to the fact that sec. 269.57(1), Stats., is a remedial statute which must be liberally construed by the courts. Tilsen v. Rubin, Wis.1954, 66 N.W.2d 648; Frank v. Marquette University, 1932, 209 Wis. 372, 376, 245 N.W. 125; and Worthington Pump & Machinery Corp. v. Northwestern Iron Co., 1922, 176 Wis. 35, 46, 186 N.W. 156. A plain reading of the statute makes it at once apparent that it has two objectives: first, to enable the party to an action to have an inspection of property, books, and documents in the possession of the other party which may be necessary in order either to enable the former to properly plead or to prepare for trial; and, secondly, to insure that books and documents in the possession of the opposite party may be available as evidence at the trial of the action by ordering the same deposited with the clerk for safekeeping and production at the trial.

To construe the relief permitted under the statute preceding the italicized word 'or', and that permitted under the portion of the statute following said word, to be mutually exclusive of each other, as contended for by defendants' counsel, seems to us to lead to an inconsistent and absurd result. The ordering of the impounding of records and documents with the clerk for production at the trial, with no right of inspection by the party seeking the same until trial, would not only greatly handicap a party situated as is the plaintiff in the instant case, but might also greatly delay and disrupt the orderly procedure of the trial itself. For example, if the plaintiff were granted no right of prior inspection as to the impounded records before trial, much time of the trial might be required to be consumed from time to time while plaintiff's counsel examined such records and discussed their nature with officers or employees of plaintiff preparatory to questioning the defendants, or their witnesses, relative to the same. On the other hand, the granting of the right of inspection of such books and records by the moving party, together with the right to make copies, is not a full substitute for the ordering of the safekeeping and production of such books and documents at the trial, especially if such books and documents are voluminous, as they may well be in the instant case.

We are constrained to conclude that the two methods of relief afforded by the statute are not mutually exclusive and that, while the trial court in a proper case may grant one or the other to the moving party, there is nothing in the statute which prevents the court in its sound discretion from granting both in the same order as was done here. Parenthetically, it might be observed that in the instant case the ordering of the deposit of the records of the defendant Soft Water Supply Company with the clerk of the court was incidental to the right of inspection granted to plaintiff and not for the purpose of safekeeping such records so that they might be produced at the trial, in view of the further provision that such documents should only remain in the clerk's office for a period of 10 days.

The second contention advanced in behalf of defendant is that the order entered constitutes an abuse of discretion on the part of the trial court because the records of sales of the defendant Soft Water Supply Company, as to which plaintiff was granted the right of inspection, were not limited to sales made to plaintiff's franchised operators. Inasmuch as the complaint alleges that plaintiff has approximately one thousand of such operators to whom it has granted franchises, it is urged that it would have been a simple matter for plaintiff to have supplied a list of the same, and, therefore, the court should have directed plaintiff to supply such a list, and that the sales records, which the defendant Soft Water Supply Company was ordered to deposit in the clerk's office for plaintiff's inspection, shoudl have been restricted to sales made to such franchised operators whose names appeared in such list.

It would appear that counsel in advancing such contention have not fully comprehended the scope of the cause of action for unfair competition alleged in plaintiff's complaint. 1 Callmann, Unfair Competition and Trade-Marks (2d ed.) sec. 2, p. 18, states:

'It is the purpose of the law of unfair competition to protect the competitive position of the business enterprise. In principle, the rules of competition guarantee the maintenance of a competitive order and any violation disturbs this order. Every competitor tries to eliminate his rival as an effectively competitive business activity. In practice, the competitor unfairly directs his attack at the commercial equipment upon which his rival depends in the competitive struggle. Though the wrong stems out of the violation of a code of equitable conduct rather than injury to particular values, the violation of related duties rather than the infringement of particular rights, the violation of rights and the injury to values are evidentiary factors which define the extent of the defendant's wrongful conduct. The latter's intent or success in diverting trade from another may be shown by such acts as his imitation of the plaintiff's trade-mark, his...