Karel v. Conlan

• Decision Date: 09 December 1913
• Citation: 155 Wis. 221,144 N.W. 266
• Parties: KAREL v. CONLAN ET AL.
• Court: Wisconsin Supreme Court

155 Wis. 221

144 N.W. 266

KAREL

v.CONLAN ET AL.

Supreme Court of Wisconsin.

Dec. 9, 1913.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Action by John C. Karel against Lawrence Conlan and others. From an order defendant Conlan appeals. Reversed, with directions, and remanded.

Civil action for damages brought against the defendant Conlan and others for a criminal conspiracy to libel. The alleged dissemination of a printed circular, referred to as “Exhibit 1,” appears to form the basis of the action. It contains the following language: “To the Honorable John C. Karel, County Judge of Milwaukee County: That the public records in the county court show the notorious fact that you have from time to time permitted crafty attorneys and guardians ad litem to plunder the estates of orphans and widows of thousands of dollars, and in some instances as high as twenty-five thousand dollars. * * * That while the widows and orphans have been clamoring to have their business transacted in the county court, you have been the pliant candidate for governor at the requests of special interests, big business and tax dodgers, with or without pay.” After service of the summons, upon an affidavit therefor an order was obtained for an examination of the defendants under section 4096, Stats. 1911, to enable the plaintiff to plead. The examination was had before a court commissioner, and the defendant Conlan, after being ordered by the commissioner to answer, refused to answer a number of questions put to him by plaintiff's counsel on the ground that the answers would tend to incriminate him. The following are fair samples of the questions the witness refused to answer: “Where did you first see the proof for the printed document Exhibit 1? Did you prepare the copy for this paper, Exhibit 1? Who gave the order for printing Exhibit 1? Who did you consult with before ordering this paper referred to, Exhibit 1, printed? Did you have any meeting of county committee, or any of its members, at which the matter of the issuance of Exhibit 1 was discussed? Who besides yourself had anything to do with the preparation of the copy for this paper Exhibit 1? How did this Exhibit 1 come to be issued or printed and circulated? When was Exhibit 1 first brought to your attention in its printed form? Did you order it printed? How many did you order printed? Did you show Exhibit 1 to Mr. Bollow at any time before it was printed? Who gave the defendant L. Breithaupt Printing Company, or any of its officers or agents, directions about the printing of this document, Exhibit 1? Were you present at any time when any copy was prepared or directions given in regard to the printing of Exhibit 1 and its duplicates? Did you hire anybody to aid in the distribution or to distribute them? Who paid for the distribution of these papers, the mailing, postage stamps, stationery, and the services involved in the mailing of them? By whose suggestion was the stamp placed upon these papers apparently made by a rubber stamp, return to room 300 Foster building, 403 Grand avenue, corner Fourth street? Who ordered the stamp made? Did you have anything to do with obtaining any room in the Foster building, or elsewhere, for the purpose of having these papers distributed and received after they had been sent out and returned? Did you ever read the matter before it was printed, the matter contained in Exhibit 1? Did you believe the statements in Exhibit 1 were true, before they were circulated? Did Mr. Fred Lorenz and Mr. Theodore Kronshage, or either of them, ever talk with you about issuing these circulars before they were issued? Did Mr. Fred Lorenz talk with you about it before they were printed? Had Mr. Theodore Kronshage talked with you about it before they were printed? Do you know whether or not the printing of this Exhibit 1 was done by the L. Breithaupt Printing Company?” It appeared that one Frank L. Prescott distributed copies of Exhibit 1 at the South Side Turn Hall, Milwaukee. The witness was interrogated at length as to his connection with such distribution, in each case refusing to answer the questions on the ground that the answers might tend to incriminate him. The questions which the witness refused to answer were certified to the circuit court and it affirmed the ruling of the commissioner and ordered the witness to answer the questions. The witness again refused, claiming his constitutional privilege, and the court commissioner adjudged him in contempt and ordered his imprisonment in the county jail of Milwaukee county until he shall answer the questions and pay the sum of $50 costs and expenses. The circuit court, upon review, entered an order affirming the order of the court commissioner, and from such order of the circuit court the defendant Conlan appealed.Kronshage, Hannan & McMillan, of Milwaukee, for appellant.

Doe & Ballhorn, of Milwaukee, for respondent.

VINJE, J. (after stating the facts as above).

[1] The appealability of the order is challenged by the respondent, and the cases of Phipps v. Wisconsin Cent. Ry. Co., 130 Wis. 279, 110 N. W. 207, and Neacy v. Thomas, 148 Wis. 91, 133 N. W. 580, are relied upon to sustain the challenge. In the former case it was held that the examination of a party under the provisions of section 4096, Stats. 1911, is both a special proceeding and a provisional remedy, but that an order requiring witnesses to produce certain books and papers made in the course of the examination was in no sense a final order within the meaning of section 3069, Stats. 1911, and therefore was not appealable. In the latter case the appeal was from orders requiring certain questions propounded to a witness to be answered by him and sustaining the witness' claim of privilege as to others. It was decided that such orders were not appealable, on the ground that they were merely rulings upon the admission or exclusion of evidence.

In the case before us, however, we have a ruling made by the circuit court affirming a ruling of a court commissioner that the witness be required to answer certain questions, the refusal of the witness to answer as directed, the finding of the court commissioner that the witness was in contempt, an order adjudging him to be in contempt and fixing his punishment therefor, and the affirmance of such order of the commissioner by an order of the circuit court. Such later order was a final order in a special proceeding within the meaning of section 3069. Nothing further remained to be done. The guilt and punishment of the witness were finaly adjudicated unless reversed upon appeal.

[2][3] The gist of the action, as disclosed by the affidavit filed in support of the examination, is a conspiracy to libel the plaintiff. While the present action is a civil one for damages, if proven it would present facts tending to render appellant liable for a criminal conspiracy under section 4568, Stats. 1911, which provides that “any person guilty of a criminal conspiracy at common law shall be punished by imprisonment in the county jail not more than one year or by a fine not exceeding five hundred dollars.” It would also tend to subject him to punishment under the provisions of section 4569, Stats. 1911, which reads: “Any person guilty of libel shall be punished by imprisonment in the county jail not more than one year or by a fine not exceeding two hundred and fifty dollars.”

Our statutes provide for no immunity for appellant in case of his giving incriminating evidence. The question therefore arises: Is he, in a civil action, privileged from answering under the principles of the common law and the constitutional provisions of this state and of the United States that no person “shall be compelled in any criminal case to be a witness against himself”? Article 1, § 8, Const.; Const. U. S. Amend. 5. It seems the circuit court held that, this being a civil action for damages, the witness could not successfully claim his privilege for the purpose of shielding himself from liability in the action, and that he could not avail himself of the constitutional privilege not to incriminate himself, because if he gave his answers under protest the information thus elicited could not be used against him in subsequent criminal proceedings. That a witness cannot invoke the privilege for the purpose of avoiding civil liability is settled by the provisions of section 4077, Stats. 1911, hereinafter referred to. The second ground given by the circuit court is not tenable. The respondent cites the following cases as sustaining the decision of the trial court: Keith v. Woombell, 8 Pick. (Mass.) 211; Boston, etc., Ry. Co. v. State, 75 N. H. 513, 77 Atl. 996, 31 L. R. A. (N. S.) 539, Ann. Cas. 1912A, 382;People v. Cahill, 126 App. Div. 391, 110 N. Y. Supp. 728, affirmed in 193 N. Y. 232, 86 N. E. 39, 20 L. R. A. (N. S.) 1084;State v. Sieber, 49 Or. 1, 88 Pac. 313;Patterson v. Wyoming Valley District Council, 31 Pa. Super. Ct. 112; U. S. v. Distillery, 6 Biss. 483, Fed. Cas. No. 14,966; U. S. v. McCarthy (C. C.) 18 Fed. 87;O'Neil v. People, 113 Ill. App. 195;In re Burrows, 33 Kan. 675, 7 Pac. 148;Cogan v. Cogan, 202 Mass. 58, 88 N. E. 662;State v. Reilly, 40 Wash. 217, 82 Pac. 287; In re Strouse, 1 Sawy. 605, Fed. Cas. No. 13,548; U. S. v. Three Tons of Coal, 6 Biss. 379, Fed. Cas. No. 16,515; Tom Wah v. United States, 163 Fed. 1008, 90 C. C. A. 178;Law Chin Woon v. United States, 147 Fed. 227, 77 C. C. A. 369.

Keither v. Woombell, 8 Pick. (Mass.) 211 was an application in a suit in equity to obtain possession of a bond admitted by defendant to be under her control. It was held that she could be ordered to leave it with the clerk of the court, with liberty to the plaintiff to take a copy thereof. The remark in the opinion that the provision of the Constitution that a subject is not to be compelled to “furnish evidence against himself” did not relate to a civil matter was purely obiter. It is evident that no subsequent...