Davis v. District Court in and for Allamakee County

• Citation: 192 N.W. 852,195 Iowa 688
• Decision Date: 03 April 1923
• Docket Number: 35231
• Parties: JAMES C. DAVIS, Petitioner, v. DISTRICT COURT OF ALLAMAKEE COUNTY et al., Respondents
• Court: United States State Supreme Court of Iowa

192 N.W. 852

195 Iowa 688

JAMES C. DAVIS, Petitioner, v. DISTRICT COURT OF ALLAMAKEE COUNTY et al., Respondents

No. 35231

Supreme Court of Iowa, Des Moines

April 3, 1923

Certiorari to Allamakee District Court.--W. J. SPRINGER Judge.

ORIGINAL certiorari proceedings in this court.--Writ sustained.

Writ Sustained.

Hughes Taylor & O'Brien, for petitioner.

W. S Hart, for respondents.

STEVENS, J. PRESTON, C. J., EVANS and DE GRAFF, JJ., concur.

OPINION

STEVENS, J.

I.

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 General 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, Massachusetts. 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, Massachusetts, 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, Massachusetts. 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, Massachusetts, was 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 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, repair, 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 2d 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 2d to December 30, 1918, including notations and records as to condition of said car on December 2d, when received, and thereafter until December 30, and of all repairs and other labor changes, icing, loading, unloading, billing, transportation, and movement of said car during said period, and all other train, car, shop, repair, icing,...