Frank v. Marquette Univ.
| Decision Date | 09 November 1932 |
| Citation | 209 Wis. 372,245 N.W. 125 |
| Parties | FRANK v. MARQUETTE UNIVERSITY ET AL. |
| Court | Wisconsin Supreme Court |
OPINION TEXT STARTS HERE
Appeal from an order of the Circuit Court for Milwaukee County; John J. Gregory, Circuit Judge.
Action by Horace A. Frank against Marquette University and others. From an order denying plaintiff's petition for inspection and permission to take copies of certain records, plaintiff appeals.--[By Editorial Staff.]
Affirmed.
This appeal is from an order entered March 4, 1932, denying the petition of the plaintiff for an inspection and permission to take copies of certain records of Marquette University relating to contemplated or executed disciplinary measures concerning ten named classmates of the plaintiff, who were granted diplomas by defendant university.
The action in which plaintiff's petition for inspection arose was commenced on the 15th day of April, 1931, against Marquette University, its president, secretary, and dean of the medical school, to compel the university to issue to the plaintiff a diploma conferring on him the degree of Doctor of Medicine. The complaint asks specific performance of a contract between the plaintiff and the university, and is based upon the law of State ex rel. Burg v. Milwaukee Medical College, 128 Wis. 7, 106 N. W. 116, 3 L. R. A. (N. S.) 1115, 116 Am. St. Rep. 21, 8 Ann. Cas. 407.
The complaint alleges, in substance, that the plaintiff was admitted to the medical school as a regular first-year student in September, 1924; that, at the time of his matriculation and at all times prior and subsequent thereto, defendant university advertised and represented to the public, including the plaintiff, that to all persons who completed the course in medicine and one year's satisfactory internship in a recognized hospital a diploma certifying such achievements and conferring the degree of Doctor of Medicine would be issued; that, relying upon such advertisements and representations, the plaintiff applied for admission to defendant's medical school and was duly enrolled as a medical student therein; that he thereafter paid all of the required fees and continued as a regular student in good standing in said school up to the 6th day of June in the fourth and final year of required attendance; that upon the payment of the matriculation fees an agreement was entered into between the plaintiff and defendant university according to the terms of a certain bulletin of the medical school of defendant university, by virtue of which, upon the plaintiff's subscribing to the rules and regulations of defendant university and paying all the required fees, a certificate of completion of the course of medicine would be issued to him and a degree of Doctor of Medicine conferred upon him. The complaint further alleges that the plaintiff performed all of the terms and conditions of the contract, including the one year's internship in a recognized hospital, and completed the full course of study prescribed by defendant university for graduation from its school of medicine; that he satisfied all of the requirements for the degree of Doctor of Medicine, both as to attendance, standing, and studies, and as to good moral character, as evidenced by those in his class who were granted degrees. The complaint further alleges that on June 6, 1929, the plaintiff was arbitrarily expelled from said school without a definitely stated cause, upon vague and uncertain charges, without a hearing, without notice of the charges against him, and without an opportunity to hear the testimony against him, to question witnesses, or to rebut their testimony; that, although he has continually demanded a hearing, such demand has been ignored; that he has been unfairly discriminated against; and that defendant university exercised its discretion in an arbitrary and prejudicial manner in demanding of him, as a condition of graduation, a higher standard than that required of his classmates who were graduated.
The answer denies that the plaintiff was a regular student in good standing at the time of his expulsion; denies that the plaintiff has taken and completed the full five years' course of study prescribed by defendant university for graduation; denies that the plaintiff has completed the one year's required internship; and denies generally that the plaintiff has performed the conditions required for graduation; and alleges specifically that the plaintiff was expelled for sufficient cause, and the reasons therefor.
After issue joined, the plaintiff petitioned the court for an order permitting him to inspect and take copies of certain records concerning contemplated or executed disciplinary measures in respect to ten named classmates of the plaintiff to whom were issued diplomas conferring degrees of Doctor of Medicine upon them. Upon hearing duly had, the plaintiff's petition was denied. From that order the plaintiff appealed.
Samuel Becker, of Milwaukee (Earl Morse, of Milwaukee, of counsel), for appellant.
Clifton Williams, of Milwaukee, for respondents.
The plaintiff's petition for an order to compel inspection of certain records of defendant university, relating to certain contemplated or executed disciplinary actions concerning certain classmates of the plaintiff, was made pursuant to the provisions of section 327.21, Stats., and circuit court rule XVIII. Section 327.21, provides in part as follows:
“The court before which an action or proceeding is pending, or a judge thereof, may, in discretion and upon due notice, order either party to give to the other, within a specified time, an inspection and copy or permission to take a copy of any books, papers and documents in his possession or under his control containing evidence relating to the action or proceeding.”
Circuit court rule XVIII provides, so far as it is material to this controversy, as follows:
“Applications to compel a party to give to the other inspection of real or personal property or of any books, papers or documents in possession or under the control of the opposite party, may be made by petition, duly verified, or by motion founded on affidavit, in the following cases; * * *
2. By either party,...
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