Gilbertson v. State

• Decision Date: 12 May 1931
• Citation: 205 Wis. 168,236 N.W. 539
• Parties: GILBERTSON v. STATE.
• Court: Wisconsin Supreme Court

205 Wis. 168

236 N.W. 539

GILBERTSON

v.STATE.

Supreme Court of Wisconsin.

May 12, 1931.

Error to review a judgment of the County Court of Chippewa County; Dayton E. Cook, County Judge.

Gilbert Gilbertson was convicted for contempt of court, and he brings error.--[[[By Editorial Staff.]

Reversed, with directions to discharge defendant.

The judgment, entered on the 20th of January, 1931, adjudged the plaintiff in error, a deputy state fire marshal guilty of contempt of court, for the reason that he had refused, while testifying as a witness for the defendant in the case of Lawrence Lozynski v. Security Fire Insurance Company, an action then pending in said court, to produce for the purposes of cross-examination a book containing certain memoranda made by him in his official capacity during the investigation of the fire which occasioned the loss for which the action had been brought. The plaintiff in error was fined $50 for contempt of court, and was committed to the county jail of Chippewa county for a period of thirty days until the fine was paid. The action, during the trial of which the alleged contempt occurred, was for the recovery of the amount of a fire loss under a fire insurance policy. Various defenses were set up by the defendant insurance company, among them that the property destroyed was held jointly by plaintiff while the policy was in the name of the husband alone, and that plaintiff had violated the terms of the policy and increased the hazard by generating illuminating gas on the premises.

During the course of the trial the plaintiff in error was called as a witness for the defendant. He testified that he had been ordered to investigate this fire by the state fire marshal, and that during his investigation had a conversation with a son of the plaintiff; that he had taken notes of the conversation, and had the notes with him, and defendant's attorney informed him that he might refer to his notes to refresh his memory. Mr. Stafford, attorney for the plaintiff, asked if he might see the notes. The witness declined to show them. Mr. Stafford thereupon asked the court to order him to let him see the notes. The court said: “Not yet, I won't.” Upon Mr. Stafford later renewing his request for the notes, the witness declined to produce them, and the court said: “Wait until you get ready for your cross examination.” Thereupon the witness gave his testimony, referring to the notes for the purpose of refreshing his recollection. Upon cross-examination Mr. Stafford then said: “Now may I see your book, Mr. Gilbertson?” Mr. Gilbertson said: “No.”

“Q. I would like to see it? A. I know you would.

Q. Is there anything in there you would rather I didn't see? A. Yes; personal notes, and the Supreme Court ruled that we don't have to show our notes.”

The court then asked Mr. Stafford if he requested the notes for the purpose of cross-examination, and, upon receiving an affirmative answer, the court ordered the plaintiff in error to produce the notes. The plaintiff in error thereupon said: “Your honor, the Supreme Court has ruled that we don't have to show our notes.” The court then said: “I am not interested in your interpretation of the Supreme Court ruling. You will do as I say, I have told you to produce these notes.” Plaintiff in error answered: “I am not going to.” The court then said: “Stand before the bar of the court. I will give you another opportunity to produce these notes. Will you produce them?” Answer: “I have been instructed by my superiors; I will not do it.” The court then adjudged plaintiff in error to be in contempt.

John W. Reynolds, Atty. Gen., and J. E. Messerschmidt, Asst. Atty. Gen., for plaintiff in error.

H. E. Stafford, of Chippewa Falls, for the State.

WICKHEM, J.

It is contended by the plaintiff in error, and conceded by the defendant in error, that the reports and notes of investigations made by the state fire marshal or deputy state fire marshals are secret and not open to public inspection. State ex rel. Spencer v. Freedy, 198 Wis. 388, 223 N. W. 861, 862. In that case it was said: “The manifest purpose of the law is to apprehend and punish those who may be guilty of the crime of arson, and to discourage the burning of property for the purpose of recovering the insurance thereon. If the testimony of all persons taken in investigations conducted by the state fire marshal or his deputies, for the purpose of discovering the origin of fires, were to be made a matter of public record, the attainment of the purposes of the law would be greatly embarrassed. We should hardly expect the Legislature to write into a law a provision which would so frustrate the attainment of the purposes of the law. * * * The policy thus declared is certainly inconsistent with the idea that testimony so given may be inspected by any one accused of the crime of arson as the result of such investigation.”

[1] This being the statutory purpose, it follows as a necessary conclusion that the book used by plaintiff in error was privileged and that he could not be compelled to produce it upon a subpœna duces tecum, in a civil action upon a policy of fire insurance. The statutory policy is directed, not to the assistance of parties litigant, but to the prevention and punishment of the crime of arson.

Defendant in error contends that, assuming all this to be true, plaintiff in error waived the privilege by testifying from the notes contained in the...