885.11(5)
(5) Striking out pleading. If any party to an action or proceeding shall unlawfully refuse or neglect to appear or testify or depose therein, either within or without the state, the court may, also, strike out the party's pleading, and give judgment against the party as upon default or failure of proof.
885.11 History
History: 1987 a. 155;
1993 a. 486.
885.11 Cross-reference
Cross-reference: See also s.
804.12 (4) regarding failure to appear at deposition.
885.11 Annotation
Sub. (5) is broad enough to include the failure to produce documents at a discovery examination, but a party cannot delay 7 years before making the motion to strike the pleading. "Unlawfully" means without legal excuse, and this must be determined at a hearing. Gipson Lumber Co. v. Schickling,
56 Wis. 2d 164,
201 N.W.2d 500 (1972).
885.11 Annotation
The trial court did not abuse its discretion in dismissing a plaintiff's complaint for failure to comply with a discovery order. Furrenes v. Ford Motor Co.
79 Wis. 2d 260,
255 N.W.2d 511 (1977).
885.12
885.12
Coercing witnesses before officers and boards. If any person, without reasonable excuse, fails to attend as a witness, or to testify as lawfully required before any arbitrator, coroner, medical examiner, board, commission, commissioner, examiner, committee, or other officer or person authorized to take testimony, or to produce a book or paper which the person was lawfully directed to bring, or to subscribe the person's deposition when correctly reduced to writing, any judge of a court of record or a circuit court commissioner in the county where the person was obliged to attend may, upon sworn proof of the facts, issue an attachment for the person, and unless the person shall purge the contempt and go and testify or do such other act as required by law, may commit the person to close confinement in the county jail until the person shall so testify or do such act, or be discharged according to law. The sheriff of the county shall execute the commitment.
885.12 Cross-reference
Cross-reference: See s.
785.06.
885.15(1)(1) No person may be excused from attending, testifying or producing books, papers, and documents before any court in a prosecution under
s. 134.05 on the ground or for the reason that the testimony or evidence required of him or her may tend to incriminate him or her, or to subject him or her to a penalty or forfeiture. No person who testifies or produces evidence in obedience to the command of the court in the prosecution may be liable to any suit or prosecution, civil or criminal, for or on account of testifying or producing evidence; provided, that no person may be exempted from prosecution and punishment for perjury committed in so testifying.
885.15(2)
(2) The immunity provided under
sub. (1) is subject to the restrictions under
s. 972.085.
885.15 History
History: 1989 a. 122.
885.16
885.16
Transactions with deceased or insane persons. No party or person in the party's or person's own behalf or interest, and no person from, through or under whom a party derives the party's interest or title, shall be examined as a witness in respect to any transaction or communication by the party or person personally with a deceased or insane person in any civil action or proceeding, in which the opposite party derives his or her title or sustains his or her liability to the cause of action from, through or under such deceased or insane person, or in any action or proceeding in which such insane person is a party prosecuting or defending by guardian, unless such opposite party shall first, in his or her own behalf, introduce testimony of himself or herself or some other person concerning such transaction or communication, and then only in respect to such transaction or communication of which testimony is so given or in respect to matters to which such testimony relates. And no stockholder, officer or trustee of a corporation in its behalf or interest, and no stockholder, officer or trustee of a corporation from, through or under whom a party derives the party's interest or title, shall be so examined, except as aforesaid.
885.16 History
History: 1993 a. 486 885.16 Annotation
Under the dead man's statute if an objection properly made is overruled, the objecting counsel can cross-examine without risk of waiving the objection. However, if an examination exceeds the scope of the direct examination by questions "beyond the scope," and the examiner elicits the very information sought to excluded, such examination "beyond the scope" constitutes a waiver of the objection. Estate of Molay,
46 Wis. 2d 450,
175 N.W.2d 254 (1970).
885.16 Annotation
While the benefit of the dead man's statute is waived when the opposite party opens the door, waiver is not effected when testimony elicited from an interested survivor established only independent facts made up of physical actions of the parties and no inquiry was made into what, if anything, actually transpired between the decedent and the interested survivor with regard to these actions. Johnson v. Mielke,
49 Wis. 2d 60,
181 N.W.2d 503 (1970).
885.16 Annotation
A widow, sued on a note as comaker with her husband, cannot exclude testimony as to transactions with her deceased husband, no evidence of agency being presented. Keller Implement Co. v. Eiting,
52 Wis. 2d 460,
190 N.W.2d 508 (1971).
885.16 Annotation
An attorney who drew a will directing that he be retained to probate the estate was not barred from testifying by this section. Casper v. McDowell,
58 Wis. 2d 82,
205 N.W.2d 753 (1973).
885.16 Annotation
An interested person may testify as to overhearing a conversation the deceased had with 2 other persons, also since deceased, while the witness was in another room. Estate of Nale,
61 Wis. 2d 654,
213 N.W.2d 552 (1974).
885.16 Annotation
A company waived the protection of the statute when it presented a principal stockholder's widow as a witness. Younger v. Rosenow Paper & Supply Co.
63 Wis. 2d 548,
217 N.W.2d 841 (1974).
885.16 Annotation
In a petition for proof of heirship by the natural son of the deceased and a cross-petition by the deceased's niece and nephew alleging that the son had been adopted by his aunt, testimony by the cross-petitioner's mother, a sister-in-law of the deceased, as to conversations with the deceased were not precluded by this section because she did not stand to gain or lose from the direct legal operation and the effect of the judgment, and her interest in a judgment in favor of her children was too remote and speculative to bring her within the statute's restrictions. Estate of Komarr,
68 Wis. 2d 473,
228 N.W.2d 681 (1975).
885.16 Annotation
The husband of the niece of the testator, who was a residuary legatee in prior wills, was not disqualified from testifying as to his conversations with the testator, even though the niece was an incompetent witness under the statute. In re Estate of Christen,
72 Wis. 2d 8,
239 N.W.2d 528 (1976).
885.16 Annotation
The protection of the dead man's statute was waived when counsel objected to the admissibility of evidence rather than to the competency of the witness. In Matter of Estate of Reist,
91 Wis. 2d 209,
281 N.W.2d 86 (1979).
885.16 Annotation
Deposition questions about a transaction with the decedent did not result in a total waiver of the dead man's statute for purposes of trial. In Matter of Estate of Vorel,
105 Wis. 2d 112,
312 N.W.2d 850 (Ct. App. 1981).
885.16 Annotation
The core meaning of this section is that it disqualifies a witness to a transaction or communication with a decedent from testifying about that transaction or communication in his or her favor, or in the favor of any party to the case claiming under the witness. The statute does not preclude an opposing party from calling adversely a witness to a communication or transaction with a decedent. A witness to a communication or transaction with the decedent may not proclaim himself or herself to be incompetent to testify under the statute if no other party makes that objection. Bell v. Neugart, 2002 WI App 180,
256 Wis. 2d 969,
650 N.W.2d 52.
885.16 Annotation
Current law expresses disdain for the dead man's statute and requires courts to construe it narrowly and restrict its application whenever possible. Havlicek/Fleisher Enterprise, Inc. v. Bridgeman,
788 F. Supp. 389 (1992).
885.16 Annotation
In order to render a witness incompetent under this section, a party must show: 1) a transaction or communication between the decedent and the witness; 2) the witness has an interest in the matter at hand; and 3) the liability or cause of action of the party advocating incompetency arose through, from, or under the deceased. Schimpf v. Gerald, Inc.
52 F. Supp. 2d 976 (1999).
885.16 Annotation
Raising the dead man's statute in federal court. Pendleton. Wis. Law. March 1990.
885.16 Annotation
The Wisconsin Deadman's Statute: The Last Surviving Vestige of an Abandoned Common Law Rule. Stevens. 82 MLR 281 (1998).
885.17
885.17
Transactions with deceased agent. No party, and no person from, through or under whom a party derives the party's interest or title, shall be examined as a witness in respect to any transaction or communication by the party or person personally with an agent of the adverse party or an agent of the person from, through or under whom such adverse party derives his or her interest or title, when such agent is dead or insane, or otherwise legally incompetent as a witness unless the opposite party shall first be examined or examine some other witness in his or her behalf in respect to some transaction or communication between such agent and such other party or person; or unless the testimony of such agent, at any time taken, be first read or given in evidence by the opposite party; and then, in either case respectively, only in respect to such transaction or communication of which testimony is so given or to the matters to which such testimony relates.
885.17 History
History: 1993 a. 486.
885.17 Annotation
The dead man's statute is not available to benefit the automobile insurer of a corporation concerning a transaction whereby an officer-agent accepted title of his wife's automobile for the corporation, since the insurer did not derive its interest "from, through or under" the corporation by virtue of its contract to insure. Knutson v. Mueller,
68 Wis. 2d 199,
228 N.W.2d 342 (1975).
885.17 Annotation
Employees of a party, including corporate employees, are not within the disqualification imposed by this section. Hunzinger Construction Co. v. Granite Resources Corp.
196 Wis. 2d 327,
538 N.W.2d 804 (Ct. App. 1995),
94-1626.
885.205
885.205
Privileged communications. No dean of men, dean of women or dean of students at any institution of higher education in this state, or any school psychologist at any school in this state, shall be allowed to disclose communications made to such dean or psychologist or advice given by such dean or psychologist in the course of counseling a student, or in the course of investigating the conduct of a student enrolled at such university or school, except:
885.205(1)
(1) This prohibition may be waived by the student.
885.205(2)
(2) This prohibition does not include communications which such dean needs to divulge for the dean's own protection, or the protection of those with whom the dean deals, or which were made to the dean for the express purpose of being communicated to another, or of being made public.
885.205(3)
(3) This prohibition does not extend to a criminal case when such dean has been regularly subpoenaed to testify.
885.205 History
History: 1993 a. 486.
885.23
885.23
Genetic tests in civil actions. Whenever it is relevant in a civil action to determine the parentage or identity of any child, person or corpse, the court, by order, shall direct any party to the action and any person involved in the controversy to submit to one or more genetic tests as provided in
s. 767.48. The results of the tests shall be receivable as evidence in any case where exclusion from parentage is established or where a probability of parentage is shown to exist. Whenever the court orders the genetic tests and one of the parties refuses to submit to the tests that fact shall be disclosed upon trial.
885.23 History
History: 1979 c. 352;
1995 a. 100.
885.235
885.235
Chemical tests for intoxication. 885.235(1)(a)
(a) "Alcohol concentration" means the number of grams of alcohol in 100 milliliters of a person's blood or the number of grams of alcohol in 210 liters of a person's breath.
885.235(1)(d)
(d) "Restricted controlled substance" means any of the following:
885.235(1)(d)1.
1. A controlled substance included in schedule I under
ch. 961 other than a tetrahydrocannabinol.
885.235(1g)
(1g) In any action or proceeding in which it is material to prove that a person was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration while operating or driving a motor vehicle or, if the vehicle is a commercial motor vehicle, on duty time, while operating a motorboat, except a sailboat operating under sail alone, while operating a snowmobile, while operating an all-terrain vehicle or while handling a firearm, evidence of the amount of alcohol in the person's blood at the time in question, as shown by chemical analysis of a sample of the person's blood or urine or evidence of the amount of alcohol in the person's breath, is admissible on the issue of whether he or she was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration if the sample was taken within 3 hours after the event to be proved. The chemical analysis shall be given effect as follows without requiring any expert testimony as to its effect:
885.235(1g)(a)
(a) The fact that the analysis shows that the person had an alcohol concentration of more than 0.0 but less than 0.08 is relevant evidence on the issue of being under the combined influence of alcohol and a controlled substance, a controlled substance analog or any other drug, but, except as provided in
par. (d) or
sub. (1m), is not to be given any prima facie effect.
885.235(1g)(b)
(b) Except with respect to the operation of a commercial motor vehicle as provided in
par. (d), the fact that the analysis shows that the person had an alcohol concentration of more than 0.04 but less than 0.08 is relevant evidence on the issue of intoxication or an alcohol concentration of 0.08 or more but is not to be given any prima facie effect.
885.235(1g)(c)
(c) In cases involving persons who have 2 or fewer prior convictions, suspensions, or revocations, as counted under
s. 343.307 (1), the fact that the analysis shows that the person had an alcohol concentration of 0.08 or more is prima facie evidence that he or she was under the influence of an intoxicant and is prima facie evidence that he or she had an alcohol concentration of 0.08 or more.
885.235(1g)(d)
(d) The fact that the analysis shows that the person had an alcohol concentration of 0.04 or more is prima facie evidence that he or she was under the influence of an intoxicant with respect to operation of a commercial motor vehicle and is prima facie evidence that he or she had an alcohol concentration of 0.04 or more.
885.235(1k)
(1k) In any action or proceeding in which it is material to prove that a person had a detectable amount of a restricted controlled substance in his or her blood while operating or driving a motor vehicle or, if the vehicle is a commercial motor vehicle, on duty time, while operating a motorboat, except a sailboat operating under sail alone, while operating a snowmobile, while operating an all-terrain vehicle, or while handling a firearm, if a chemical analysis of a sample of the person's blood shows that the person had a detectable amount of a restricted controlled substance in his or her blood, the court shall treat the analysis as prima facie evidence on the issue of the person having a detectable amount of a restricted controlled substance in his or her blood without requiring any expert testimony as to its effect.
885.235(1m)
(1m) In any action under
s. 23.33 (4c) (a) 3.,
30.681 (1) (bn),
346.63 (2m) or
(7), or
350.101 (1) (c), evidence of the amount of alcohol in the person's blood at the time in question, as shown by chemical analysis of a sample of the person's blood or urine or evidence of the amount of alcohol in the person's breath, is admissible on the issue of whether he or she had an alcohol concentration in the range specified in
s. 23.33 (4c) (a) 3.,
30.681 (1) (bn),
346.63 (2m), or
350.101 (1) (c) or an alcohol concentration above 0.0 under
s. 346.63 (7) if the sample was taken within 3 hours after the event to be proved. The fact that the analysis shows that the person had an alcohol concentration of more than 0.0 but not more than 0.08 is prima facie evidence that the person had an alcohol concentration in the range specified in
s. 23.33 (4c) (a) 3.,
30.681 (1) (bn),
346.63 (2m), or
350.101 (1) (c) or an alcohol concentration above 0.0 under
s. 346.63 (7).
885.235(2)
(2) The concentration of alcohol in the blood shall be taken prima facie to be three-fourths of the concentration of alcohol in the urine.
885.235(3)
(3) If the sample of breath, blood or urine was not taken within 3 hours after the event to be proved, evidence of the amount of alcohol in the person's blood or breath as shown by the chemical analysis is admissible only if expert testimony establishes its probative value and may be given prima facie effect only if the effect is established by expert testimony.
885.235(4)
(4) The provisions of this section relating to the admissibility of chemical tests for alcohol concentration or intoxication or for determining whether a person had a detectable amount of a restricted controlled substance in his or her blood shall not be construed as limiting the introduction of any other competent evidence bearing on the question of whether or not a person was under the influence of an intoxicant, had a detectable amount of a restricted controlled substance in his or her blood, had a specified alcohol concentration, or had an alcohol concentration in the range specified in
s. 23.33 (4c) (a) 3.,
30.681 (1) (bn),
346.63 (2m) or
350.101 (1) (c).
885.235 Annotation
A blood sample taken under s. 346.71 (2) and forwarded to the department of transportation is admissible in evidence. Luedtke v. Shedivy,
51 Wis. 2d 110,
186 N.W.2d 220 (1971).
885.235 Annotation
Administration of a blood or breath test does not violate a defendant's privilege against self-incrimination. State v. Driver,
59 Wis. 2d 35,
207 N.W.2d 850 (1973).
885.235 Annotation
When blood alcohol content is tested under statutory procedures, results of the test are mandatorily admissible. The physical sample tested is not evidence intended, required, or even susceptible of being produced by the state under s. 971.23 (4) and (5). State v. Ehlen,
119 Wis. 2d 451,
351 N.W.2d 503 (1984).
885.235 Annotation
Failure to timely notify a person of the right to an alternative blood test for intoxication does not affect the presumption of validity for a properly given blood test and is not grounds for suppressing the test results. County of Dane v. Granum,
203 Wis. 2d 252,
551 N.W.2d 859 (Ct. App. 1996).
885.237
885.237
Presumptions as to operation and registration of motor vehicle. 885.237(1)
(1) The fact that a motor vehicle is located on a highway, as defined in
s. 340.01 (22), is prima facie evidence, for purposes of
ch. 341, that the motor vehicle has been operated on a highway by the owner.
885.237(2)
(2) Notwithstanding
s. 341.04, the fact that an automobile or motor truck having a registered weight of 8,000 pounds or less is located on a highway, as defined in
s. 340.01 (22), and is not displaying valid registration plates, a temporary operation plate or other evidence of registration as provided under
s. 341.18 (1) is prima facie evidence, for purposes of
ch. 341, that the vehicle is an unregistered or improperly registered vehicle.
885.24
885.24
Actions for public moneys, immunity. 885.24(1)
(1) No witness or party in an action brought upon the bond of a public officer, or in an action by the state or any municipality to recover public money received by or deposited with the defendant, or in any action, proceeding or examination, instituted by or in behalf of the state or any municipality, involving the official conduct of any officer thereof, may be excused from testifying on the ground that his or her testimony may expose him or her to prosecution for any crime or forfeiture. No person may be prosecuted or subjected to any penalty or forfeiture for or on account of testifying or producing evidence, documentary or otherwise, in the action, proceeding or examination, except a prosecution for perjury committed in giving the testimony.
885.24(2)
(2) The immunity provided under
sub. (1) is subject to the restrictions under
s. 972.085.
885.24 History
History: 1989 a. 122.
885.25
885.25
State actions vs. corporations or limited liability companies. 885.25(1)(1) No corporation or limited liability company shall be excused from producing books, papers, tariffs, contracts, agreements, records, files or documents, in its possession, or under its control, in obedience to the subpoena of any court or officer authorized to issue subpoenas, in any civil action which is now or hereafter may be pending, brought by the state against it to recover license fees, taxes, penalties or forfeitures, or to enforce forfeitures, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of it, may subject it to a penalty or forfeiture, or be excused from making a true answer under oath, by and through its properly authorized officer or agent, when required by law to make such answer to any pleading in any such civil action upon any such ground or for such reason.
885.25(2)
(2) No officer, clerk, agent, employee or servant of any corporation or limited liability company in any such action may be excused from attending or testifying or from producing books, papers, tariffs, contracts, agreements, records, files or documents, in his or her possession or under his or her control, in obedience to the subpoena of any court in which any such civil action is pending or before any officer or court empowered or authorized to take deposition or testimony in any such action, in obedience to the subpoena of the officer or court, or of any officer or court empowered to issue a subpoena in that behalf, on the ground or for the reason that the testimony or evidence, documentary or otherwise, required of him or her, may tend to incriminate him or her or subject him or her to a penalty or a forfeiture, but no such officer, clerk, agent, employee or servant shall be prosecuted, or subjected to any penalty or forfeiture, for or on account of testifying or producing evidence, documentary or otherwise, before the court or officer, or any court or officer empowered to issue subpoena in that behalf, or in any such case or proceeding except a prosecution for perjury or false swearing in giving the testimony.
885.25(2m)
(2m) The immunity provided under
sub. (2) is subject to the restrictions under
s. 972.085.
885.25(3)
(3) In case of the failure or neglect of any corporation or limited liability company, or of any such officer, clerk, agent, employee or servant, to produce any such book, paper, tariff, contract, agreement, record, file or document, secondary evidence of the contents of any or either of the same may be given, and such secondary evidence shall be of the same force and effect as the original.
885.25 History
History: 1989 a. 122;
1993 a. 112.
885.25 Annotation
Since the immunity that attaches under sub. (2) or s. 77.61 (12), is merely coextensive with a defendant's rights against self-incrimination, which does not attach to the records of a corporation, a defendant's claim of immunity for delivering corporate records has no merit. State v. Alioto,
64 Wis. 2d 354,
219 N.W.2d 585 (1974).
885.285
885.285
Settlement and advance payment of claim for damages. 885.285(1)(1) No admission of liability shall be inferred from the following:
885.285(1)(a)
(a) A settlement with or any payment made to an injured person, or to another on behalf of any injured person, or any person entitled to recover damages on account of injury or death of such person; or
885.285(1)(b)
(b) A settlement with or any payment made to a person or on the person's behalf to another for injury to or destruction of property.
885.285(2)
(2) Any settlement or payment under
sub. (1) is not admissible in any legal action unless pleaded as a defense.
885.285(3)
(3) Any settlement or advance payment under
sub. (1) shall be credited against any final settlement or judgment between the parties. Upon motion to the court in the absence of the jury and on submission of proper proof prior to entry of judgment on a verdict, the court shall apply the provisions of
s. 895.045 and then shall reduce the amount of the damages so determined by the amount of the payments made. Any rights of contribution between joint tort-feasors shall be determined on the amount of the verdict prior to reduction because of a settlement or advance payment.
885.285(4)
(4) The period fixed for the limitation for the commencement of actions shall be as provided by
s. 893.12.
