I agree with the propositions of substantive law stated in the opinion of the court, but do not agree that judgment should be entered herein under the summary-judgment statute, sec. 270.635. That statute is not stated in the opinion of the court. It reads in part as follows:
"Summary judgments. (1) Summary judgment may be entered as provided in this section in any civil action or special proceedings.
"(2) The judgment may be entered in favor of either party, on motion, upon the affidavit of any person who has knowledge thereof, setting forth such evidentiary facts, including documents or copies thereof, as shall, if the motion is by the plaintiff, establish his cause of action sufficiently to entitle him to judgment; and, if on behalf of the defendant, such evidentiary facts, including documents or copies thereof, as shall show that his denials or defenses are sufficient to defeat the plaintiff, together with the affidavit of the moving party, either that he believes that there is no defense to the action or that the action has no merit (as the case may be) unless the opposing party shall, by affidavit or other proof, show facts which the court shall deem sufficient to entitle him to a trial."
The purpose of this statute is to prevent delays in the trial of cases by interposing sham and frivolous causes of action or defenses. Prime Mfg. Co. v. A. F. Gallun Sons Corp.229 Wis. 348, 281 N.W. 697. No such cause of action or defense is involved here. The issue on which a summary judgment is sought is raised by the defense of advice of counsel interposed by defendant's answer. That is certainly not a sham and frivolous defense. Nor is the cause of action alleged a sham or frivolous one. The summary-judgment statute cannot be used to inaugurate the practice of avoiding *Page 550 trial by jury of jury issues presented by the pleadings upon affidavits and adverse examination presented to a judge upon a motion for such judgment. This point was squarely and unanimously decided in Prime Mfg. Co. v. A. F. Gallun Sons Corp., supra. The cases bearing upon the point are cited in that case. No case to the contrary is cited in the opinion of this court, nor can one to the contrary be found in the books.
The point at issue under the answer and the statutory denial is whether the defendant fully and fairly stated to his attorney and to the participating attorneys in the district attorney's office all the facts within his knowledge, and whether he honestly and in good faith relied on the advice of these attorneys in instituting the criminal proceedings. A very different aspect of the case as to reliance than that presented by the majority opinion of the court might appear to a jury upon adverse or cross-examination of the defendant on a trial before them, and examination of the plaintiff before a jury might support an inference by the jury that the defendant did not fully and fairly state the facts to the attorneys. Besides the matter of good faith in reliance on advice of the attorneys is one of inference to be drawn by the jury. The defendant of course may by affidavit categorically state that he did so rely, and from the nature of the case it cannot be categorically denied by an affidavit of the plaintiff or anyone else because no one else can possibly know the state of the defendant's mind, and that no affidavit of categorical denial was presented cannot afford basis for granting a summary judgment.
Upon the propositions of reliance on the advice of counsel and full and fair statement it is stated in Restatement, 3 Torts, p. 421, sec. 666, as to "Functions of Court and Jury:" "It is for the jury to determine whether the client [defendant] sought the advice of his attorney [the attorneys] in good faith or whether the advice was sought to protect him from liability *Page 551 for initiating proceedings upon which he had already determined. It is also for the jury to find whether the accused laid before the attorney all the facts which he knew or of which he had reliable information; or, on the other hand, whether he suppressed facts which he should have known to be material." The first proposition next above stated is particularly in point here because of the statements in plaintiff's affidavit that before the criminal case was started the defendant stated that "he was going to put the plaintiff in jail if there was any way of getting him there;" the statement in Mr. Nohl's affidavit that defendant said to him on August 24, 1934, "he was going to the district attorney to get a warrant to put Petrie behind the bars if there was any way of getting him there; that Waupun was too good for him." Complaint was first made to the district attorney's office by letter September 7, 1937, and the complaint was finally signed and warrant issued October 21, 1939. The hearings before the securities division were begun September 28, 1938, and were concluded September 22, 1939. Whether on these facts and what transpired during the several meetings and hearings had the defendant was seeking to "protect himself from liability initiating" criminal proceedings was particularly for a jury to determine.
It seems to me that the opinion of the court is erroneous for deciding the case as if it were before us on appeal from a judgment of dismissal based upon the granting of a motion for a directed verdict or a verdict of a jury. Were either the situation, judgment for dismissal would be proper. But it is entirely clear to me that to direct judgment upon a motion for a summary judgment is grossly erroneous, both upon the language of the statute and its rationale. The order of the circuit court should be affirmed.
I am authorized to state that Mr. Justice WICKHEM and Mr. Justice MARTIN concur in this dissent. *Page 552