Opinion
No. 262.
Argued May 7, 1969. —
Decided June 3, 1969.
APPEAL from an order of the circuit court for Dane county: W. L. JACKMAN, Circuit Judge. Affirmed.
For the appellant the cause was argued by E. Gordon Young, assistant attorney general, with whom on the brief were Bronson C. La Follette, attorney general, and Richard E. Barrett, assistant attorney general.
For the respondents there was a brief by Willink Thompson of Madison, and oral argument by Dale R. Thompson.
On March 28, 1967, respondents commenced an action for declaratory judgment against the Administrator of the Division of Motor Vehicles, Wisconsin Department of Transportation, for the purpose of having the court construe sec. 340.01 (24), Stats., which defines "implements of husbandry."
The respondents contend that various vehicles used in the application of fertilizer qualify as "implements of husbandry" and are therefore exempt from certain motor vehicle safety and registration statutes.
The Administrator of the Division of Motor Vehicles demurred to respondents' complaint. The demurrer was overruled by the trial court and this court affirmed in Wisconsin Fertilizer Asso. v. Karns.
(1968), 39 Wis.2d 95, 158 N.W.2d 294.
Thereafter, by his attorneys, the Administrator of the Division of Motor Vehicles, the appellant in this matter, pursuant to sec. 269.57 (1), Stats., moved the circuit court for Dane county to allow inspection of certain books and documents belonging to respondents. Specifically, the administrator moved the court to order Cornland Fertilizers, Inc., to permit inspection of:
". . . any books or documents in plaintiff's possession containing information relating to corporate structure, organization, other related activities (i.e., manufacturing and sale of fertilizers, agricultural products, etc.), other related business activities of board of directors, companion business organizations, all records re: purchase and sale of fertilizer, equipment rentals and leases by corporation to other entities, all fertilizer service contracts, profit and loss statements, all sales contracts, bills of sale (and like documents), storage records, inventories, mileage records on all equipment, fertilizer production records.
"And all other related books or documents."
Also, the appellant moved the circuit court to order Wisconsin Fertilizer Association, Inc., to permit inspection of:
". . . any books, documents . . . relating to number and names of all members, major business activity and associated activities of all members, business organization affiliation of each member, numbers and types of bulk spreaders and tanks owned by each, profits from bulk fertilizer sales, service contracts, and equipment rental, minutes of all meetings where the litigated question was discussed, all communications, notes, memoranda, etc. re: this issue, names, addresses, title of all officers.
"And all other related books or documents."
In support of this motion, appellant's attorney submitted an affidavit to the circuit court which provided in part as follows:
". . .
"(4) That on information and belief, plaintiffs are business organizations engaged in the manufacture and sale of commercial fertilizers and performance of fertilizer service contracts.
"(5) That on information and belief, plaintiffs are not primarily engaged in the business of farming.
"(6) That inspection of the books and documents of plaintiffs, as requested in defendant's motion, dated August 5, 1968, and filed with the court September 17, 1968, is necessary to enable defendant to properly present his case.
"(7) That inspection of such books and documents is necessary to discover the extent of plaintiffs' business of farming, business of manufacture and sale of fertilizer, business of fertilizer services, the relationship of each to the other, and methods and procedures employed by plaintiffs in the course of business operations.
"(8) Evidence required by defendant to present his case is exclusively within the knowledge of plaintiffs and contained in documents under plaintiffs' control."
The circuit court denied defendant's motion for discovery, and the administrator appeals from that denial.
In Tilsen v. Rubin this court reviewed a trial court's order denying inspection under sec. 269.57 (1), Stats. The court stated:
(1954), 268 Wis. 131, 66 N.W.2d 648.
"The language of the statute identifies the order which plaintiff seeks to obtain as one discretionary with the trial court. Accordingly, we should not reverse unless convinced that the court's action constituted a clear abuse discretion. The statute is a remedial one and must be construed liberally. . . . The burden of establishing such abuse of discretion is on the appellant." (Emphasis added.)
Id. at page 134.
Thus, the sole issue before this court is whether the trial court abused its discretion in refusing to grant appellant's motion for inspection of various books and documents pursuant to sec. 269.57 (1), Stats. Our conclusion is that the trial court's refusal was not an abuse of discretion.
The issue to be resolved in the declaratory judgment proceeding is whether certain of plaintiffs-respondents' vehicles used in the application of fertilizer are to be classified as "implements of husbandry" pursuant to sec. 340.01 (24), Stats., and thus be exempt from certain motor vehicle safety and registration statutes. To obtain such classification, respondents must establish that the vehicles in question were designed for agricultural purposes, are used exclusively in the conduct of agricultural operations, and are used principally off the highways.
See sec. 340.01 (24), Stats.
Appellant contends that it was an abuse of discretion for the trial court to deny the motion for inspection of books and documents because information from these sources is necessary for the presentation of an adequate defense in the declaratory judgment proceeding.
It is appellant's position that the bulk spreaders and liquid tanks used in the application of fertilizer cannot be "implements of husbandry" because they are used in and related to the commercial activities of respondents' business and consequently are not used exclusively in respondents' business of farming.
Thus appellant submits that the requested inspection of books and documents must be permitted in order to determine the extent of the farming and commercial operations of the respondents and the relationship of the vehicles in question to those operations.
If sec. 340.01 (24), Stats., is construed to mean that vehicles must be used exclusively in farming operations as opposed to commercial activities in order to qualify as "implements of husbandry," then any "commercial" use of the vehicles in question would preclude their classification as "implements of husbandry." This construction of the statute is opposed by respondents who submit, in effect, that the commercial use of the bulk spreaders and liquid tanks does not change the character of their "agricultural" use and does not preclude their classification of "implements of husbandry."
The construction of this statute is not actually before the court at this stage of the litigation. However, if appellant is seeking to establish that the vehicles are used in the commercial aspects of respondents' operations, that fact appears to have been conceded in the pleadings, on oral argument, and in the briefs before this court. Therefore, it would appear that much of the material sought in the inspection order is not required.
In its memorandum decision, the trial court noted that the extensive investigation sought by the appellant would impose an almost intolerable burden upon the respondents, that it would be almost impossible to determine what specific documents were being sought, and that it was unclear how material the documents were to the inquiry in this action.
The court stated:
". . . The materiality of the sweeping investigation of plaintiffs' records is not clear in its relationship as to whether the vehicles in question are designed for agricultural purposes, used exclusively in the conduct of agricultural operations and used principally off the highway as required to conform to the definition of `implement of husbandry' under sec. 340.01 (24), Stats. The sole issue in the case relates to the design and use of the vehicles in question and the general conduct of plaintiffs' businesses outside of the use of the vehicles are not very material. It does not appear from the record that the examination requested by defendant is likely to disclose material evidence. . . ."
Prior decisions of this court make it abundantly clear that, in support of the application for the inspection order, "there must be facts set forth showing how and why discovery is material. . . ."
Cespuglio v. Cespuglio (1941), 238 Wis. 603, 606, 300 N.W. 780. See also, Townsend v. La Crosse Trailer Corp. (1948), 254 Wis. 31, 35 N.W.2d 325; Northern Wisconsin Co-op. Tobacco Pool v. Oleson (1927), 191 Wis. 586, 211 N.W. 923; Worthington Pump Machinery Corp. v. Northwestern Iron Co. (1922), 176 Wis. 35, 186 N.W. 156.
However, it is unnecessary for this court to determine whether appellant has met the standards relating to the showing of materiality for the reason that the trial court exercised its discretion in another direction, and properly so, in concluding that the taking of depositions would be an alternative means by which relevant and material information could be obtained by appellant so as to alleviate the burden which would be imposed upon the respondents if the order for inspection were granted.
In reaching this conclusion we think that the trial court's denial of the motion for inspection was not an abuse of discretion. Material and relevant information can be acquired by appellant through the taking of depositions. During the course of deposition proceedings, if it becomes necessary for appellant to acquire specific books and documents, a request for an order to that effect can be made to the trial court. In this way the appellant can acquire needed information and the discovery process will be kept well within the bounds of relevancy.
By the Court. — Order affirmed.