Banks v. Conn. Ry. & Lighting Co.

• Decision Date: 05 June 1906
• Citation: 64 A. 14,79 Conn. 116
• Court: Connecticut Supreme Court
• Parties: BANKS v. CONNECTICUT RY. & LIGHTING CO.

64 A. 14

79 Conn. 116

BANKS

v. CONNECTICUT RY. & LIGHTING CO.

Supreme Court of Errors of Connecticut.

June 5, 1906.

Appeal from Court of Common Pleas, Fairfield County; Howard J. Curtis, Judge.

Action for personal injuries by Phebe J. Banks against the Connecticut Railway & Lighting Company. From a judgment for plaintiff, defendant appeals. Affirmed.

William T. Hincks and Spotswood D. Bowers, for appellant. John J. Walsh and John Keogh, for appellee.

PRENTICE, J. Two questions are presented by this appeal. One relates to the power of a court in the progress of a trial, upon the motion of one of the parties, to order the production, for use as evidence, of documents in court and in the hands of an opposing party or his counsel. Formerly a party to an action at law could not be compelled by his opponent to testify. This long-recognized privilege has now, in most jurisdictions at least, been withdrawn by statute, with the result that parties have come under the same paramount duty to bear witness to the truth which is placed upon strangers to a litigation. We have such a statute. Gen. St. 1902, § 710. It provides that "any party to a civil action may compel any adverse party * * * to testify as a witness in his behalf, in the same manner and subject to the same rules as other witnesses." The privilege which parties to actions at law enjoyed, before these statutes, of not being compellable by an opponent to testify, was one which was held to extend to documents in his possession. Since the statutes withdrawing this privilege, however, it has been held, and we think rightly and as the inevitable corollary of such withdrawal, that parties are now no more privileged to withhold from an adversary written evidence in his possession than oral evidence which he is able to contribute from his knowledge of facts. Wigmore on Evidence, § 2219; Bonesteel v. Lynde, 8 How. Prac. (N. Y.) 226, 231; People v. Dyckman, 24 How. Prac. (N. Y.) 222, 224; Murray v. Elston, 23 N. J. Eq. 212; Edison Electric Light Co. v. U. S. Electric Lighting Co. (C. C.) 45 Fed. 55. The result is that upon trials of actions parties are placed upon the same footing as other persons in respect to their duty, when duly required, to become witnesses to the truth in whatsoever way the truth may be established through them, and to that end are subject to those processes and proceedings which are the recognized means of obtaining the benefit of evidence witnesses may have at their command. Buckingham v. Barnum, 30 Conn. 358.

The familiar process by which the production of documents in the hands of third persons is secured is the subpoena duces tecum. One upon whom such process is served is bound to produce the required document. The production thus compelled does not, however, signify a delivery of the papers into the hands of the party calling for their production or of his counsel, or a submission of them to his examination; neither does such a consequence necessarily follow. The production which the possessor of the papers is required to make consists of bringing them into court and putting them into its control. Having by this act complied with the order of production, the producer may ask the court to pass upon any claim of privilege, or to make a personal inspection of the document or documents to determine their relevancy or their relevant parts before their submission to counsel, and to make any proper order for the protection in such submission of the interests of the producer, as for example by withholding from the view of counsel any irrelevant matter which he ought not to be permitted to examine. The future of documents after they have, pursuant to an order of production, passed into the control of the court is for its determination, and is a matter quite independent of the act of production which has been completed. It follows from the present assimilation of the status of party witnesses to that of others, that this process of subpoena duces tecum, with the results indicated, is at the service of any party to an action against his adversary to procure the production to the court of documents in the latter's possession and claimed to be relevant upon the trial. This defendant could, therefore, have compelled the production of the paper now in question through the agency of such a process. In the case of parties a situation unusual at least in the case of strangers is likely to be presented. The desired document may be in court in the hands of party or counsel. Such was the situation upon the present trial. It needs no argument to show that in such case the power to compel a production by a direct order of the court must be commensurate with the power to accomplish that result by the more circuitous means of a written command formally served by an officer. It is clear, therefore, that a court may upon the trial of a cause, upon the motion of one of the parties, order his adversary or the latter's counsel to produce to the court, for such use in the progress of the trial as it may authorize, any document claimed to be relevant which is then in court and in the possession of the person to whom the order is addressed.

It now remains to bring to the test of these principles the action of the court which is complained of. The action was one to recover for personal injuries alleged to have been received by the plaintiff while she was riding upon one of the defendant's trolley cars and as...