Carman v. Fishel, 41704

CourtSupreme Court of Oklahoma
Citation1966 OK 130,418 P.2d 963
Docket NumberNo. 41704,41704
PartiesVivian L. CARMAN, Oklahoma State Highway Department, and Firemen's Fund Insurance Company, Petitioners, v. The Honorable Lavern FISHEL, Judge of the District Court of The Twenty-fifthJudicial District, Oklahoma, Respondent.
Decision Date05 July 1966

Syllabus by the Court

1. Under Rule 15, Rules for the District, Superior and Common Pleas Courts of Oklahoma, adopted by the Supreme Court of Oklahoma, Appendix to Chapter 2, Title 12 O.S.Supp.1965, enacted by the 1965 Legislature and appearing as 12 O.S.Supp.1965 Sec. 549, and under 12 O.S.Supp.1965 Sec. 548, order of the trial court directing litigant to answer certain interrogatories and to produce, for inspection by adversary and copying, certain documents in possession of litigant, held, not appealable order.

2. Application to assume original jurisdiction and petition to issue writ of prohibition will lie only to prevent clearly excessive exercise of discretion by trial court in ordering pre-trial discovery; remedy of appeal from judgment after trial not being adequate nor constituting an effective remedy.

3. The term 'privileged,' as used in discovery rules of this Court and 12 O.S.Supp.1965 Sections 548 and 549, held not to include statements of third party witnesses to the facts so as to preclude 'discovery' upon grounds of privileged communications.

4. The requirement in discovery rules and statutes, supra, that all matters subject to discovery be 'relevant,' held to mean those materials either admissible as evidence or which might lead to the disclosure of admissible evidence.

5. Plaintiff below not entitled as a matter of right, merely upon filing of motion and affidavit stating conclusions, to order of trial court, under discovery rules and statutes, supra, compelling the production of witnesses' statements, but must show facts, by affidavit or otherwise, which would support a finding by the trial court that a 'showing of good cause' for the production of such material had been made.

6. Factual showing by affidavit, or otherwise of movant or movant's attorney, that witnesses (whose statements are sought by discovery procedure) are no longer available or can be reached only with difficulty, or, although still available, are hostile and refuse to furnish information, and that movant by diligent efforts has been unable to obtain the information contained in the statements by means other than by discovery procedure will ordinarily constitute sufficient showing of 'good cause' to support trial court order to produce such statements for inspection and copying by movant.

7. The discovery rules and statutes, supra, contemplate an exercise of discretion and judgment by the trial court, not a mere automatic granting of motion.

8. The 'good cause' required to be shown by discovery rules and statutes, supra, determined by circumstances of each case.

9. Scope of permissible inquiry by interrogatories does not include inquiry concerning whether the defendant had a policy of liability insurance covering the operation of her automobile at the time of the accident giving rise to the action; nor require a disclosure of the limits of said policy or any other terms thereof, such matters not being within the issues of the controversy, not constituting admissible evidence nor furnishing leads to the disclosure of admissible evidence within the limitations of discovery procedure.

Original action for writ of prohibition to prohibit the enforcement by contempt proceedings against the defendants below, petitioners here, of order made under discovery rule of this court and statutes. Writ granted.

Gordon & Belote, McAlester, for petitioner Vivian L. Carman.

Arnote, Bratton & Allford, McAlester, for petitioners Oklahoma State Highway Department, Firemen's Fund Ins. Co.

R. Kay Matthews, Atoka, James E. Driscoll, Seminole, for respondent.

George B. Fraser, Jr., Norman, Watts, Looney, Nichols & Johnson, by Clyde J. Watts, Oklahoma City, amici curiae.

LAVENDER, Justice:

This is an original action for a writ of prohibition filed in this court in connection with a pending suit in the District Court of Atoka County. In the District Court the petitioners were sued by one Sally Walford for alleged damages for personal injuries arising out of an automobile accident. The accident involved occurred on February 22, 1965, and the suit was filed April 13, 1965. The case below proceeded through the pleading stage, and on May 26, 1965, plaintiff propounded of the defendants certain interrogatories asking, among other things, whether or not the defendants had taken the written statements of any witnesses to the accident, and, if so, defendants were requested to furnish the names and addresses of such witnesses, if any. The defendants were also asked concerning whether or not any photographs had been taken of the scene or of the vehicles, and whether or not at the time of the accident the individual defendant Vivian L. Carman had in force and effect a policy of liability insurance which would be available for the satisfaction of any judgment the plaintiff might be awarded.

The defendants agreed to furnish the photographs for copying by the plaintiff, and no issue is here presented regarding whether defendants could have been compelled to do so.

The interrogatories concerning statements of witnesses were answered by the defendants, and the names and addresses of such persons were supplied plaintiff. The defendants objected and refused to answer those interrogatories concerning insurance.

The questions thus presented are:

(a) Under Rule 15 adopted by the Supreme Court of Oklahoma March 15, 1965, entitled Rules for the District, Superior and Common Pleas Courts of Oklahoma, Chapter 2 Appx. to 12 O.S.Supp.1965 (which was substantially enacted into law by the 1965 Legislature and now is 12 O.S.Supp.1965, Sec. 549, providing for interrogatories,) is the plaintiff in a personal injury action involving an auto collision entitled to compel the defendant in such action to answer interrogatories concerning whether such defendant at the time of the accident had in effect a policy of liability insurance which would be available for the payment of plaintiff's damages, and if so to divulge all the terms of such policy, including the limits thereof?

(b) Is the plaintiff in such an action as above described entitled to an order under 12 O.S.Supp.1965, Sec. 548, to compel the defendant to produce such policy of insurance for copying by the plaintiff?

(c) Is the plaintiff in such an action entitled to an order under the last cited statute directed to the defendants to compel them to produce for inspection and copying by the plaintiff all witnesses' statements in the possession of the defendants, including the statement of the plaintiff herself?

Following the defendants' refusal to answer the questions concerning insurance, the plaintiff filed a motion to compel the defendant to answer the interrogatories, which motion was sustained by the trial court. Also upon the refusal of the defendant to produce the insurance policy and the statements of the witnesses, the plaintiff filed a motion to compel such production, and the trial court so ordered. Upon the defendants refusal to comply with the above mentioned orders of the trial court, said defendants brought this action in this court for a writ of prohibition to restrain and enjoin the lower court from enforcing its said orders by contempt proceedings against the defendants.

The scope of this opinion, therefore, will be to state as clearly as possible this court's interpretation of the new 'discovery' rule of this Court (Rule 15) and the statutes enacted by the 1965 Legislature, namely, 12 O.S.Supp.1965, Secs. 548 and 549, within the issues presented by questions (a), (b) and (c) above.

12 O.S.Supp.1965, Sec. 548 provides as follows:

'Upon motion of any party showing good cause and upon notice to all other parties, and subject to the equitable power of the court to protect any party or witness from annoyance, embarrassment, or oppression, the Court in which an action is pending may (1) order any such party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of examination permitted by deposition and which are in such parties' possession, custody or control, or (2) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon within the scope of which examination is now permitted by deposition. This order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.'

This section is almost an exact adoption of Rule 34 of the Federal Rules of Civil Procedure, which has also been adopted substantially in a number of states.

Because the statute requires the filing of a motion showing 'good cause' before the trial court may order the production of the matters sought by discovery, we believe it helpful to set forth herein the motion filed in the court below and of the affidavit in support thereof which, we are urged, reflects the 'good cause' showing required to be made.


'Plaintiff moves the Court for an order requiring the defendants, and each of them to produce and to permit the plaintiff to inspect and to copy each of the following documents, memorandums, or statements.

'1. Copies of statement taken from plaintiff and any witness to this...

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    ...assuming jurisdiction were not persuasive). We have assumed original jurisdiction to clarify a trial court procedure. Carman v. Fishel, 1966 OK 130, 418 P.2d 963, 968, overruled on other grounds, Tuller v. Shallcross, 1994 OK 133, 886 P.2d 481, 485. See also, Orthopedic Clinic v. Jennings, ......
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