Phipps v. Wis. Cent. Ry. Co.

• Decision Date: 15 October 1907
• Citation: 133 Wis. 153,113 N.W. 456
• Parties: PHIPPS v. WISCONSIN CENT. RY. CO.
• Court: Wisconsin Supreme Court

133 Wis. 153

113 N.W. 456

PHIPPS

v.WISCONSIN CENT. RY. CO.

Supreme Court of Wisconsin.

Oct. 15, 1907.

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

Action by Katherine Phipps, administratrix of Charles Phipps, against the Wisconsin Central Railway Company. From orders requiring a witness to submit to examination, and refusing to restrain plaintiff from taking depositions, defendant appeals. Reversed and remanded.

This action was brought to recover damages for the death of Charles Phipps, on the ground of alleged negligence of the defendant. After the case was at issue, the plaintiff examined Thomas H. Gill, attorney, Charles M. Morris, secretary, and C. N. Kalk, chief engineer, of defendant, under section 4096, St. 1898, and acts amendatory thereof. The examinations were had and completed before the 1st day of June, 1907. On June 17, 1907, plaintiff's attorney gave notice of further examinations pursuant to the act, and proceeded to examine A. H. Dassett, G. B. Johnson, A. J. Van Valkenburg, E. E. Hayes, E. F. Kuehnast, M. D. Vinkle, Thomas Stockland, C. Hilson, Guy Cary, and I. Johnson, alleged in the notice to be employés and former employés of the defendant. The notice fixed the date of examination as June 25, 1907, before R. F. Kountz, court commissioner for the circuit court of Clark county. On June 24, 1907, an order to show cause was served, based on affidavit requiring plaintiff to show cause why the proceedings and examinations so noticed should not be stayed, and plaintiff restrained from taking the depositions. On the hearing an order was entered denying the relief asked for by the defendant. On June 25, 1907, the witness Hayes, as well as other witnesses, refused to testify, under advice of counsel, for the reason that the commissioner had no jurisdiction to proceed with the examination, because the plaintiff had exhausted her remedy by a former examination, and the proceedings were certified to the circuit court of Milwaukee county. The defendant was required to show cause why the said Hayes should not be compelled to answer and the examination proceed. On the hearing of said order, July 1, 1907, an order was made remanding the proceedings to the court commissioner, and ordering that the examination be resumed, and that the witness be required to answer the questions and submit to further examination.Thos. H. Gill and Walter D. Corrigan, for appellant.

Glicksman & Gold, for respondent.

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

1. It is insisted that the orders are not appealable under the rule laid down in Phipps v. Wisconsin C. R. Co., 130 Wis. 279, 110 N. W. 207. But it will be seen that on the former appeal the order appealed from was “merely an interlocutory order regulating the manner of procedure upon the examination,” and therefore not appealable. One of the orders here is an order requiring Hayes to answer the questions put to him and submit to the examination. The other order refused to stay and restrain the plaintiff from taking the depositions of the other witnesses under section 4096, St. 1898. Both of these orders come within subdivision 3, § 3069, St. 1898, continuing a provisional remedy, and therefore are appealable. Howell v. Kingsbury, 15 Wis. 299.

2. It is contended by appellant that section 4096, as amended by chapter 244, p. 328, Laws 1901, so far as it relates to the examination of a former employé of a corporation, is in conflict with the fourteenth amendment to the federal Constitution and the Declaration of Rights in the Constitution of the state of Wisconsin. The portion of the statute as amended, so far as applicable to the question under consideration, reads as follows: “But the examination of the party, his or its assignor, agent or employé, or, in case a private corporation be a party in addition to the foregoing, the examination of the president, secretary or other principal officer of such corporation or of the person who was such president, secretary, officer, agent or employé, at the time of the occurrence of the facts made the subject of the examination.” It is insisted by respondent that this statute may be construed to include the examination of the former employé of an individual, as well as the former employé of a corporation, and, even if it does not, it is not unconstitutional. Giving this statute its plain meaning, the court is unable to see how by any stretch of construction it can be made to include the examination of a former employé of a natural person. It clearly and plainly includes the former employé of an individual, in the first part, who was such employé at the time of the occurrence of the facts made the subject of the examination. But the latter part, it seems, just as clearly applies to a corporation only, where it provides that in case a private corporation is a party, “in addition to the foregoing, the examination of the president, secretary, or other principal officer of such corporation, or of the person who was such president, secretary, officer, agent or employé, at the time of the occurrence of the facts made the subject of the examination.” Now the employé last named does not by any rule of construction relate back so as to refer to an individual. So we conclude that the former employé which the statute provides for the examination of is a former employé of a corporation, and not of an individual. The question therefore arises whether the statute limiting the examination to the former employé of a corporation is unduly discriminatory and void. It cannot be denied but that our Constitutions, state and federal, are calculated to secure equal protection to all persons, subject to the rules of just classification. When a person by statute, natural or artificial, is denied an equal remedy in the law, or equal protection in the courts, such statute is void. Price et al. v. Pennsylvania R. Co., 113 U. S. 218, 5 Sup. Ct. 427, 28 L. Ed. 980;Allen v. St. Louis Bank, 120 U. S. 27, 7 Sup. Ct. 460, 30 L. Ed. 573;Connolly v. Union S. P. Co., 184 U. S. 544, 22 Sup. Ct. 431, 46 L. Ed. 679. To this broad rule of equality of all persons before the law is the exception of the right under certain circumstances of proper classification, but this classification must be reasonable and based upon certain rules which bear a just relation to the act in respect to which the classification is made. Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 666;Black v. State, 113 Wis. 218, 89 N. W. 522, 90 Am. St. Rep. 853;State ex rel. Risch v. Trustee, 121 Wis. 54, 98 N. W. 954;State ex rel. Sanderson v. Mann, 76 Wis. 469, 45 N. W. 526, 46 N. W. 51;Janesville v. Carpenter, 77 Wis. 288, 46 N. W. 128, 8 L. R. A. 808, 20 Am. St. Rep. 123;Anderton v. Milwaukee, 82 Wis. 279, 52 N. W. 95, 15 L. R. A. 830.

We are cited by counsel for respondent to Cincinnati S. R. Co. v. Snell, 193 U. S. 30, 24 Sup. Ct. 319, 48 L. Ed. 604, to the point that the examination afforded by section 4096, St. 1898, is a mere preliminary matter not affecting any substantial right. In that case it appears that the statute provided a different rule for change of venue in case of a corporation, and the court held that the fourteenth amendment of the federal Constitution was not infringed; that remedial process need not be applicable in all its provisions to all persons or parties alike. The statute under consideration was to the effect that: “When a corporation having more than fifty stockholders is a party in action pending in a county in which the corporation keeps its principal office, or transacts its principal business, if the opposite party make affidavit that he cannot, as he believes, have a fair and impartial trial in that county, and his application is sustained by the several affidavits of five credible persons residing in such county, the court shall change the venue to the adjoining county most convenient for both parties.” The legislation was sustained upon the ground that the rights of the parties were governed in the court to which the case was transferred by the same law and the same rules which would have prevailed had the case been tried in the court in which it had been brought, and that a statute providing that under given circumstances a case shall be tried in one forum, instead of another, does not infringe the constitutional amendment. The case before us, however, involves, the right of discrimination in the court in which the action is tried, and the statute provides a substantial...