Davis v. Dist. Court in & for Allamakee Cnty.
| Decision Date | 03 April 1923 |
| Docket Number | No. 35231.,35231. |
| Parties | DAVIS, AGENT, v. DISTRICT COURT IN AND FOR ALLAMAKEE COUNTY ET AL. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Original certiorari proceedings in this court. Writ sustained.Hughes, Taylor & O'Brien, of Des Moines, for petitioner.
W. S. Hart, of Waukon, for defendants.
This is an original certiorari proceeding in this court to test the validity of an order for the production of certain documentary evidence for the use of the plaintiff, which it is alleged in the petition therefor is material and necessary to the establishment of the cause of action pleaded. The action pending in the court below is entitled Will Clark, plaintiff, v. Chicago, Milwaukee & St. Paul Railway Company, New York Central Railroad Company, Boston & Albany Railroad, and Walker D. Hines, United States Director of Railroads, defendants, and was brought to recover damages occasioned to a car of dressed poultry in transit consigned to the Chicago, Milwaukee & St. Paul Railway Company at Waukon, Iowa, for transportation to Boston, Mass. The petition charged negligence as follows:
“That on or about the 9th day of December, A. D. 1918, plaintiff delivered to Chicago, Milwaukee & St. Paul Railway at Waukon, Iowa, for transportation to Boston, Mass., over lines of above-named defendant railway companies, a carload of dressed poultry, properly packed, loaded, and in first-class condition, and defendants took, received, and accepted said poultry, in capacity of common carrier, and assumed the duties, liabilities, and obligations of a common carrier with reference thereto, and contracted, undertook, and agreed to transport same with a reasonable degree of speed, celerity, and safety to plaintiff's consignee, Bartlett & Varney, at Boston, Mass.
That, instead of transporting said carload of poultry with a reasonable degree of speed, celerity, and safety, and exercising and meeting the duties and obligations of a common carrier with reference thereto, the said poultry was negligently, carelessly, and improperly handled, cared for, and transported, and on arrival at Boston, Mass., were in a damaged, unfit, unsalable, and unmarketable condition solely and entirely through the fault, neglect, delay, mishandling, mismanagement, and failure of defendants to transport same as and under the duties and obligations of a common carrier.”
The cause was twice tried in the court below, the second trial resulting in a directed verdict in favor of the Chicago, Milwaukee & St. Paul Railway Company and a disagreement as to the defendant James C. Davis, agent under the Federal Transportation Act, who had been substituted as defendant in place of Walker D. Hines, Director General. Presumptively, none of the other defendants named were served with notice, as James C. Davis, Agent, and plaintiff herein, was the sole defendant at the time the order complained of was entered. The petition of the plaintiff therefore alleged in part:
“That, in the usual course of exercise of its functions as common carrier, the defendants and instrumentalities operating same made and kept certain car sheets, train sheets, train and refrigeration records, reports, shop, yard, repaid, and icing records, and other papers, books, records, reports, and documents with reference to said car, and the maintenance, care, movement, and operation thereof during entire time from December 2 to December 30, 1918, inclusive, which said books, records, papers, and documents are in the custody and control of defendants and accessible to defendants, and readily and conveniently producible prior to and at time of trial of this case.
That plaintiff and his attorney state upon knowledge and information produced by diligent and careful investigation of facts that, if said books, records, reports, tracings, and other papers, documents, and records with reference to said car, and the use and disposition thereof, and with reference to contents of same, if produced and available to plaintiff upon trial of said cause, will show that said car was not in proper condition and repair, and not properly cared and prepared for shipment in question, and that such lack of repair, proper condition, care, and attention was known to officers, agents, and employees of carrier in charge thereof during said period, and that the same caused or contributed to the loss, damage, and spoiling of carload of poultry belonging to plaintiff transported in said car, and plaintiff expects to prove said facts from and by such books, papers, reports, records, and other documents with reference to said car, and the loading, billing, care, attention, and movement thereof, and of the contents of same.”
Written objections to the granting of a rule were filed by the defendant, plaintiff herein, which in substance are as follows: That, as the case had been twice tried, plaintiff was fully conversant with all the facts connected therewith and had had access to such records of the defendant as, under the issues in the case, he was entitled to; that the petition did not designate and specify the records, books, and papers desired with sufficient particularity; that it does not show that the same are material to the issues joined, or essential to the establishment of plaintiff's cause of action; that it is apparent upon the face of said petition that the real purpose of plaintiff's attorney is an attempt to get possession of the private investigation made by the defendants for its own use in the trial of said cause; that it is a fishing expedition on the part of plaintiff with the hope of discovering something that he can use as evidence upon the trial or of such facts as will lead to the discovery of other evidence material to plaintiff's cause of action; and that the only issue between the parties, as shown by the record, is as to the icing of the car in which the poultry was shipped and the amount of plaintiff's recovery. The court upon hearing entered the following order:
“Petition of plaintiff sustained in so far as it requires defendant to produce forthwith all books, papers, and writings called for in prayer of petition, under the custody and control of defendant Chicago, Milwaukee & St. Paul Railway Company.”
The prayer of the petition was as follows:
“Wherefore plaintiff prays for peremptory rule or order commanding and requiring defendants to forthwith, with reasonable diligence, procure and submit for examination by plaintiff and his counsel, and for purpose of making copies thereof, and for use and introduction in evidence, all records of every kind and nature with reference to said D. & R. G. car No. 31000, and the contents thereof from December 2 to December 30, 1918,...
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