885.16 Annotation
Under ch. 766, the marital property act, in any claim for unpaid wages a non-wage earning spouse has the same interest in the potential income as the spouse who earned the wages. In the case of an unrepaid loan of marital property each spouse would have the same ownership interest. To the extent both spouses have the same ownership interest in the property that gives rise to an action, and the same right to control and manage that property, each spouse's interest in the outcome of the litigation is as present, certain, and vested and each is barred form testifying regarding the transaction. Gerczak v. Gerczak,
2005 WI App 168,
285 Wis. 2d 397,
702 N.W.2d 72,
05-0070.
885.16 Annotation
Established Wisconsin law recognizing that the testimony of a drafting attorney as to the statements made to him or her by the testator is admissible on the question of intent once such extrinsic evidence becomes admissible. Czaplewski v. Shepherd,
2012 WI App 116,
344 Wis. 2d 440,
823 N.W.2d 523,
11-2521.
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 favor of any party to the case claiming under the witness. A witness's interest must be present, certain, and vested, not just a remote or contingent interest. Because any interest in avoiding a threat of malpractice, real or imagined, would be a remote or contingent interest, the trial court properly exercised its discretion in permitting an attorney who drafted a will to testify about the testator's intent. Czaplewski v. Shepherd,
2012 WI App 116,
344 Wis. 2d 440,
823 N.W.2d 523,
11-2521.
885.16 Annotation
A "transaction" under this section means a "mutual transaction between the deceased and the surviving party, one in which they both actively participate." The statute does not bar a witness from testifying as to his or her observations and description of an event or a physical situation, if such testimony does not involve a mutual transaction in which the deceased actively participated. Rutter v. Copper,
2012 WI App 128,
344 Wis. 2d 596,
824 N.W.2d 885,
12-0025.
885.16 Annotation
"Communication," as used in this section, includes statements made to a deceased, irrespective of whether or how the deceased responded. Informing a person about what that person is doing is an effort to communicate something, and so the dead man's statute prohibits testimony about that communication. Rutter v. Copper,
2012 WI App 128,
344 Wis. 2d 596,
824 N.W.2d 885,
12-0025.
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
The Wisconsin Deadman's Statute: The Last Surviving Vestige of an Abandoned Common Law Rule. Stevens. 82 MLR 281 (1998).
885.16 Annotation
The Deadman's Statutes: Who is an Interested Party in Wisconsin? Dibley. 87 MLR 1025 (2004).
885.16 Annotation
Raising the dead man's statute in federal court. Pendleton. Wis. Law. March 1990.
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, may 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, if the agent is dead, mentally ill, or adjudicated incompetent as a witness, unless the opposite party shall first be examined or some other witness in his or her behalf examined in respect to some transaction or communication between the agent and the other party or person; or unless the testimony of the 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 the transaction or communication of which testimony is so given or to the matters to which the testimony relates.
885.17 History
History: 1993 a. 486;
2005 a. 387.
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. 767.84. 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 Annotation
Section 767.80 (1) does not permit a man alleging he is the father to bring a paternity action for the sole purpose of establishing paternity of a stillborn so that he may bring a wrongful death action. The proper vehicle for determining parentage is a motion by the father under this section for a determination of parentage within the pending wrongful death action. Shannon E. T. v. Alicia M. V.M.
2007 WI 29,
299 Wis. 2d 601,
728 N.W.2d 636,
05-0077.
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 utility 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) 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 utility 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),
95-3470.
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. This subsection does not apply to violations of ordinances enacted under
s. 341.65, but this subsection does apply to violations of ordinances enacted under s.
341.65, 2003 stats.
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.
885.285 History
History: 1975 c. 327,
421;
1979 c. 323.
885.285 Annotation
A property payment under s. 885.285 (1) extends the limitation under s. 893.12, but only if made within the 3-year limit of s. 893.54 (1). Abraham v. Milwaukee Mutual Insurance Co.
115 Wis. 2d 678,
341 N.W.2d 414 (Ct. App. 1983).
885.285 Annotation
To be a payment under s. 885.285 that will toll or extend the statute of limitations, a payment must be related to fault or liability. Gurney v. Heritage Mutual Insurance Co.
188 Wis. 2d 68,
523 N.W.2d 193 (Ct. App. 1994).
885.285 Annotation
The waiver by the defendant medical provider in a medical malpractice action of the copayment portion of the amount due for the plaintiff's medical treatment did not constitute a payment under s. 885.285 or 893.12. Young v. Aurora Medical Center,
2004 WI App 71,
272 Wis. 2d 300,
679 N.W.2d 549,
03-0224.
885.365
885.365
Recorded telephone conversation. 885.365(1)
(1) Evidence obtained as the result of the use of voice recording equipment for recording of telephone conversations, by way of interception of a communication or in any other manner, shall be totally inadmissible in the courts of this state in civil actions, except as provided in
ss. 968.28 to
968.37.
885.365(2)(a)
(a) Such recording is made in a manner other than by interception and the person whose conversation is being recorded is informed at that time that the conversation is being recorded and that any evidence thereby obtained may be used in a court of law; or such recording is made through a recorder connector provided by the telecommunications utility as defined in
s. 196.01 (10) or a telecommunications carrier as defined in
s. 196.01 (8m) in accordance with its tariffs and which automatically produces a distinctive recorder tone that is repeated at intervals of approximately 15 seconds;
885.365(2)(b)
(b) The recording is made by a telecommunications utility as defined in
s. 196.01 (10), a telecommunications carrier as defined in
s. 196.01 (8m) or its officers or employees for the purpose of or incident to the construction, maintenance, conduct or operation of the services and facilities of such public utilities, or to the normal use by such public utilities of the services and facilities furnished to the public by such public utility; or
885.365(2)(c)
(c) The recording is made by a fire department or law enforcement agency to determine violations of, and in the enforcement of,
s. 941.13.
885.37
885.37
Interpreters in municipal courts and administrative agency contested cases. 885.37(1)(b)(b) If a municipal court has notice that a person who is a juvenile or parent subject to
ch. 938, or who is a witness in a proceeding under
ch. 938, has a language difficulty because of the inability to speak or understand English, has a hearing impairment, is unable to speak or has a speech defect, the court shall make a factual determination of whether the language difficulty or the hearing or speaking impairment is sufficient to prevent the individual from communicating with his or her attorney, reasonably understanding the English testimony or reasonably being understood in English. If the court determines that an interpreter is necessary, the court shall advise the person that he or she has a right to a qualified interpreter and that, if the person cannot afford one, an interpreter will be provided for him or her at the public's expense. Any waiver of the right to an interpreter is effective only if made voluntarily in person, in open court and on the record.
885.37(2)
(2) A municipal court may authorize the use of an interpreter in actions or proceedings in addition to those specified in
sub. (1) (b).
885.37(3)(a)1.
1. "Agency" includes any official, employee or person acting on behalf of an agency.
