Arnold v. Pawtuxet Val. Water Co.

• Decision Date: 04 February 1893
• Citation: 18 R.I. 189,26 A. 55
• Parties: ARNOLD v. PAWTUXET VAL. WATER CO.
• Court: Rhode Island Supreme Court

26 A. 55

18 R.I. 189

ARNOLD

v. PAWTUXET VAL. WATER CO.

Supreme Court of Rhode Island.

Feb. 4, 1893.

Assumpsit by John J. Arnold against the Pawtuxet Valley Water Company. Plaintiff moves for an order requiring defendant to produce a book containing the record of its transactions. Motion granted.

George T. Brown, for plaintiff.

Dexter B. Potter, for defendant.

TILLINGHAST, J. This is an application under Pub. St. R. I.c. 214, § 45,¹for an order on the defendant to produce a certain document alleged to be in its possession, to be used by the plaintiff in the preparation of his case for trial. The plaintiff sets out in said application that he is informed and believes that the defendant is in the possession and control of a certain document, to wit, the book containing a record of the transactions and proceedings of the association in the plaintiff's declaration mentioned, prior to its incorporation, and also containing a record of the transactions and proceedings of said defendant corporation since its incorporation and organization. The plaintiff further represents that it is necessary for him to examine the records contained in said book, in order to prepare said case for trial, and to furnish the bill of particulars asked for by the defendant. He therefore prays the court to order said defendant, or the treasurer, or some other officer, thereof, to answer on oath as to what documents it has in its control relating to the matter in dispute between said parties, and what it knows relating to the custody of any such documents, and, if any such documents be in its possession or control, whether it objects to the production of the same, and the grounds of such objection. In response to an order to show cause, the president and secretary of the defendant corporation have filed an answer under oath to said application, in which they say "that said company is in possession and control of the 'book containing a record of the transactions and proceedings of the association in the plaintiff's declaration mentioned prior to its incorporation which book also contains 'a record of the transactions and proceedings of said defendant corporation since its incorporation and organization;' that said book is the private property of said defendant, in which its records are kept, and in which were kept the records of said association; that said book is not a 'document,' and that the plaintiff is not entitled to the same." "The defendant therefore objects to the production of said book upon the ground that it is not a 'document,' in the language of the statute, and that the plaintiff is not entitled to the same." The plaintiff's declaration, which is referentially made a part of said application, sets out that the plaintiff, who is an attorney at law, rendered and performed divers legal services for the defendant, both before and since its incorporation, and that it was agreed and stipulated that, upon said association becoming incorporated, it should assume and take upon itself the payment and fulfillment of all debts, contracts, obligations, and undertakings contracted, entered into, and undertaken by said association prior to the organization of said corporation; and that, in pursuance of said agreement and stipulation, the said corporation, after its organization, did assume upon itself and promise to pay the plaintiff for his services so rendered to said association as aforesaid. At a former hearing of said application, before a single justice in chambers, it was held that the plaintiff was entitled to the production of said record book for the purposes mentioned in said application, and an order was made accordingly, whereupon the defendant, upon petition, obtained leave to reargue said question before the full court, which has since been done.

The defendant contends that the record book of the defendant corporation is not a "document," within the meaning of said statute, and hence that the court has no authority thereunder to grant the application. We do not think that said statute should receive so narrow and purely technical a construction as this. Indeed, to so hold would be to render it largely useless and inoperative, for it is a matter of common knowledge that a very large proportion of the written transactions of both public and private corporations, as well as those of private individuals, are either kept in book form in the first instance, or are afterwards stitched or bound together in such form, for preservation and convenience. Suppose that a dozen title deeds should thus be put together in book form, would the book be any the less a "document" than was each individual deed before being thus brought together? We think not. In the Revised Statutes of the United States (section 869) the following language is used, viz.: "And to bring with him, and produce to such commissioner, any paper or writing or written instrument, or book, or other document," etc.; thus classing a book as a document. In the case In re Shephard, 3 Fed. Rep. 12, documentary evidence is held to include "books, papers, accounts, and the like." In Johnson Steel Street-Rail Co. v. North Branch Steel Co., 48 Fed. Rep. 191, 194, the definition of the term "document" as given by Mr. Wharton in his Law of Evidence(volume l, p.614) was adopted. Said definition is as follows: "A 'document' is an instrument on which is recorded, by means of letters, figures, or marks, matter which may be evidentially used. In this sense the term 'document' applies to writings, to words printed, lithographed, or photographed, to seals, plates, or stones on which inscriptions are cut or engraved, to photographs and pictures, to maps and plans." "So far as concerns admissibility, it makes no difference what is the thing on which the words or signs offered may be recorded. They may be * * * on stone or gems or on wood as well as on paper or parchment." In Merrick v. Wakley, 8 Adol. & E. 170, 172, Lord Denman, C. J., refers to a book which was kept by the plaintiff as a medical officer, and contained entries of professional visits, as a "document." Mr. Stephen (Ev. 2, 8) defines a "document" as "any matter expressed or described upon any substance by means of letters, figures, or marks, or by more than one of these means, intended to be used, or which may be used, for the purpose of recording that matter." In the statute 14 & 15 Vict. c. 99, entitled "An act to amend the law of evidence," passed in 1851, it is provided that "whenever any book or other document is of such a public nature as to be admissible in evidence, * * * a copy thereof or extract therefrom shall be admissible." See, also, Starkie. Ev. (9th Ed.) 273, 274. The official publications of the state and national governments, although generally in book form, are denominated "Public Documents," the term being generally abbreviated "Pub. Doc." We therefore decide that a book is a "document," within the meaning of the statute now under consideration.

The defendant further contends that the applicant has not shown that he is "entitled" to said book within the meaning of said statute, it not appearing that he has any property interest or title therein. We do not think it is necessary, in order to warrant the court to order the production of a document under said statute, that the applicant should show a property title therein, but that it is enough for him to show that he is justly entitled thereto by way of evidence in the preparation and trial of his case, and that such evidence is necessary to enable him fully to prosecute or defend the same. It is not necessary, however, to aver or show that, without the discovery sought, the plaintiff will be unable to prove his case. 2 Story, Eq. Jur. (12th Ed.) § 1483; Peck v. Ashley, 12 Metc. (Mass.) 478.

The final and principal contention of the defendant is that, as the plaintiff has not shown that it is absolutely necessary for him to have access to said book in order to prepare his case for trial, his application should be denied. We do not assent to so strict a requirement. See Marsh v. Davison, 9 Paige, 580, 584. If, as alleged by the plaintiff, the defendant corporation assumed the debts of the association contracted prior to...