City of Portsmouth v. Cilumbrello

• Decision Date: 14 January 1963
• Docket Number: No. 5500,5500
• Citation: 129 S.E.2d 31,204 Va. 11
• Court: Virginia Supreme Court
• Parties: CITY OF PORTSMOUTH v. MICHAEL J. CILUMBRELLO. Record

Page 31

129 S.E.2d 31

204 Va. 11

CITY OF PORTSMOUTH v. MICHAEL J. CILUMBRELLO.

Record No. 5500.

Supreme Court of Appeals of Virginia

January 14, 1963.

J. S. Livesay, Jr., City Attorney, for the plaintiff in error.

L. David Lindauer (Bangel, Bangel & Bangel, on brief), for the defendant in error.

JUDGE: CARRICO

CARRICO, J., delivered the opinion of the court.

Michael J. Cilumbrello, the plaintiff, filed a motion for judgment against the city of Portsmouth seeking to recover damages for personal injuries allegedly sustained when the automobile he was operating struck a sewer manhole protruding above the surface of a street maintained by the city. The plaintiff alleged that the city was negligent in so maintaining the manhole. A jury trial resulted in a verdict in favor of the plaintiff in the sum of $2,750.00. We awarded the city a writ of error from the final judgment approving the verdict.

The questions presented do not require a detailed statement of the manner in which the accident occurred. The first question is:

Did the court err in refusing to quash the process in the case because the notice required by Code, § 8-653, served on the city by the plaintiff, was insufficient?

Code, § 8-653, provides that written notice be given a city of a claim asserted against it by reason of its alleged negligence, within 60 days after the cause of action shall have accrued. The notice must set forth the nature of the claim and the time and place at which the injury is alleged to have occurred.

The purpose of the notice required by § 8-653 is to give the city the, 'opportunity to investigate the circumstances, examine the locality in which the injury is alleged to have occurred, and to discover the witnesses promptly so as to ascertain the facts while their recollections are fresh.' O'Neil v. City of Richmond, 141 Va. 168, 172, 126 S.E. 56.

The pertinent portions of the notice served on the city by the plaintiff were as follows:

'You are hereby notified that I was on the 29th day of November, 1960, injured as a result of the negligence of the City of Portsmouth; on that night I was operating my automobile on Fauquier Street in the City of Portsmouth, near Rockbridge Road when I was injured because the City had negligently constructed, maintained, and permitted to exist a manhole located within Fauquier Street near Rockbridge Road and located behind the Portsmouth Hardware Company in the City of Portsmouth and as a result I was seriously and permanently injured. I am making claim for damages.'

The notice was served on the city on December 7, 1960, eight days after the accident was alleged to have occurred.

We are of opinion that the plaintiff's notice met the requirements of Code, § 8-653, and that it fulfilled the purpose for which the statute exists.

The notice told the city of the nature of the plaintiff's claim, i.e., that he was injured because the city negligently construed, maintained and permitted to exist a sewer manhole on one of its streets; it informed the city when the injury occurred, i.e., on November 29, 1960; it advised the city of the place at which the injury was suffered, i.e., on Fauquier Street near Rockbridge Road, behind the Portsmouth Hardware Company. It afforded the city ample opportunity to investigate the alleged accident, to examine the alleged defect and to locate witnesses. The trial judge did not err in holding the notice sufficient.

The second question is:

Did the court err in refusing to require the plaintiff, in a discovery deposition, to disclose to the city the contents of a medical report in his possession concerning the injuries suffered in the accident?

The city, approximately three weeks before trial, moved the court to require the plaintiff to submit to the taking of a discovery deposition pursuant to Rule 3:23(c), Rules of Court. Among other matters, the city sought to have the court rule that it was entitled to be informed, in the deposition, of the contents of a medical report in the possession of the plaintiff.

The court ordered the plaintiff to submit to the deposition but ruled that he would not be required to produce the medical report in his possession because, the judge said, the contents of the report were confidential between the plaintiff and his physician.

The applicability of Rule 3:23(c), we are told, has been the subject of considerable discussion by the bench and bar of this Commonwealth. Apparently, it is interpreted in one manner by some trial courts and in quite a different manner by others. It comes to our attention that medical reports, such as are at issue before us, are ordered to be produced by some courts and refused by others.

Rule 3:23(c) reads as follows:

'On motion of any party, the court, if satisfied by affidavit, testimony, inspection of the pleadings or otherwise that the moving party in good faith desires access by way of discovery to evidence, the names and addresses of witnesses, or other information subject to the control of the adverse party or of a third person, shall permit the taking of a deposition for discovery and shall enter an order requiring the adverse party or such third person to attend at a time and place and before a notary or commissioner named in the order and to answer questions relevant to subjects named in the order and to make available for inspection, copying or photographing any writing, chattel or real property described in the order. The court shall deny the motion if it finds that granting the motion would unreasonably delay the case or impose unreasonable hardship or expense on the adverse party.'

The purposes of the rule are to aid in the dispatch of litigation, to encourage the settlement of cases, to reduce the issues so as to shorten time consumed in trial and to prevent surprise.

The intent of the rule has been ably explained by Aubrey R. Bowles, Jr., a member of the Richmond bar and of the drafting committee of the Judicial Council, which recommended the adoption of the rule, in its present form, by this Court. He said, in a speech delivered to the Judicial Conference of Virginia on May 11, 1962:

'The intent of the rule in its amended form is that, if the request for discovery in any specified area is found to have been made in good faith, the granting of discovery becomes mandatory, unless it causes unreasonable delay, hardship or expense.

'The good faith of the request for discovery was made the sole test so that it would be plain that discovery could not be used in Virginia as a subterfuge by which the adverse party or witnesses may be cross-examined in advance of trial.'

The purposes and the intent of the rule...