Ex parte Alabama Power Co.

• Decision Date: 03 March 1967
• Docket Number: 3 Div. 258
• Citation: 196 So.2d 702,280 Ala. 586
• Parties: Ex parte ALABAMA POWER CO. Ex parte Robert Tennent SIMPSON, as Executor et al. , 258--A. . *
• Court: Alabama Supreme Court

Page 702

196 So.2d 702

280 Ala. 586

Ex parte ALABAMA POWER CO.

Ex parte Robert Tennent SIMPSON, as Executor et al.

3 Div. 258, 258--A.

Special Supreme Court of Alabama. ^*

March 3, 1967.

Martin, Balch, Bingham, Hawthorne & Williams, Birmingham, and Steiner, Crum & Baker, Montgomery, for petitioner Alabama Power Co.

Hill, Hill, Whiting & Harris, Montgomery, for petitioner Simpson.

HARE, Justice.

The plaintiff in each of the two companion cases before us is a Justice of the Supreme Court of Alabama. For that reason the members of that court have certified their disqualification and pursuant to the provisions of Section 15, Title 13 of the Code of Alabama, this special court has been impaneled to act in their stead to the extent necessary to afford appellate review.

The proceedings presently before the court have arisen from two suits filed in the Circuit Court of Montgomery County, Alabama by Judge Simpson, one of said suits being filed by him in his capacity as Executor of his wife's estate seeking damages for her death as a result of personal injuries sustained by her while riding in an automobile operated by her husband, which automobile collided with a utility pole, the property of Alabama Power Company, in the City of Montgomery, Alabama. The other suit was filed by the plaintiff individually for his own personal injuries in the same collision.

Before us now are two Petitions for Mandamus. The defendant, Alabama Power Company, took the usual pre-trial depositions of the plaintiff in both cases and that of the witness, Mr. Reese. During the taking of the depositions, the trial judge made an order requiring the witnesses to answer certain questions which they, respectively, had declined to answer and sustaining the witnesses in their refusal to answer certain other questions. The plaintiff has applied to us for appellate review of the order to the extent that it required him to answer, and the defendant seeks review on the questions to which no answer was required. We have consolidated the two Petitions for Mandamus since they call for the same considerations and decisions.

If we do not issue the writs, it will not be because of any technical reasons. There is no demurrer to either Petition, and we may therefore take the facts therein stated as true and correct. ¹ Board of Education of Jefferson County v. State, 222 Ala. 70, 74, 131 So. 239. An answer from the trial judge is not necessary for the reason that the appellate questions are plainly apparent from the averments of the Petitions. There is no controversy as to whether or not mandamus is the Proper remedy.

The majority of this court is of the opinion that we can pass upon the merits of the Petitions for Mandamus without issuing the rule nisi and without the necessity of an answer or a more complete record.

In Ex parte Garland, 42 Ala. 559, 593, the rule is stated that:

'If the court can perceive plainly that the relator is not entitled to mandamus upon his own showing, it is proper to proceed to judgment against him.'

A Petition for Mandamus constitutes a first pleading in the case and the petition itself must show by averments a right to have the act complained of performed, and if the averments do not show such a right, the petition should be dismissed, although those averments are not controverted or denied. Lawson v. Swift, 280 Ala. 227, 191 So.2d 379, Paragraphs 2 and 3.

This is nonetheless true although Alabama seems to have enlarged the scope or field for the issuance of the writ of mandamus as shown by the provisions of Section 1072 of Title 7 of the Alabama Code and the annotations under the heading 'Mandamus,' under said Section 1072 of Title 7 of the Alabama Code (Volume 3 of the Code, Page 1050) as well as by the cases of Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836; Wilson v. Duncan, 114 Ala. 659, 672, 21 So. 1017, and Ex parte Laurie, 277 Ala. 137, 140, 167 So.2d 705, 707. But we need not decide whether or not a writ of mandamus is Always limited to cases where an abuse of discretion is shown on the part of the lower tribunal. The question here is whether or not the issuance of a writ of mandamus is so limited where the rulings sought to be reviewed are under the deposition statute.

In such cases we think that the issuance of the writ is limited to those where an abuse of discretion is shown. See Ex parte Cypress, 275 Ala. 563, 156 So.2d 916, Paragraphs 4 and 5 where Mr. Justice Harwood states: 'However, even under a liberal interpretation of our deposition-discovery statute, we are unwilling to say that the court abused its discretion in the above ruling.'

The principle is expressed in 23 Am.Jur.2d on Page 665, Section 270, as follows:

'It is for the trial court, not the appellate court, to pass upon any specific question presented on an application for discovery or upon any question when a particular requirement is too broad. Generally, the trial court's execution of this discretion in applying of discovery rules or in deciding whether or not to order or limit discovery will not be disturbed unless an abuse of such discretion is shown.'

The Alabama statute is patterned after Federal Rule 26(b) and our courts have heeded the construction placed upon the Federal Rule. In 'Judicial Control Over Discovery,' 28 F.R.D. 111, 116, Judge Kaufman said--

'The whole discovery procedure contemplates an absence of judicial intervention in the run-of-the-mill discovery attempt.'

Speaking of the resort to mandamus under the federal rules, Prof. Moore (Vol. 4, p. 1743) quotes the United States Supreme Court as saying:

'In strictly circumscribing piecemeal appeal, Congress must have realized that in the course of judicial decision some interlocutory orders might be erroneous. The supplementary review power conferred on the courts by Congress in the All Writs Act is meant to be used only in the exceptional case where there is clear abuse of discretion or, 'usurpation of judicial power. " ²

Prof. Moore, in the same volume, on pp. 1776 and 1777 stated that--

'Provision for appeal from discovery orders would also permit the appellate courts to take a more active part in shaping the law of discovery, although too much intervention by the courts of appeals would not be desirable,' observing that the trial courts 'are closer to the subject than appellate courts.'

He concludes the chapter on the subject of the Desirability of Providing Further Appellate Review with the observation that there is no need for legislation to grant a broader right of review and that any needed flexibility is available through a broader, although a carefully guarded use of the prerogative writs.

The appellate court will not substitute its judgment for that of the trial judge simply because it might have reached a different result had it been in his place nor will it disturb the action of the trial court unless the error complained of was prejudicial and affects the substantial rights of the parties. Sher v. De Haven, 91 U.S.App.D.C. 257, 199 F.2d 777, 36 A.L.R.2d 937, cert. den. 345 U.S. 936, 73 S.Ct. 797, 97 L.Ed. 1363. As a practical matter, it is not feasible for the highest court of the State to supervise in detail the rulings on innumerable questions involved in the practice of taking more or less lengthy depositions in a substantial percentage of litigated cases. This court must content itself with correcting substantial errors of law in such matters when substantial rights of the parties may suffer prejudice that cannot be adequately corrected on appeal. Otherwise the volume of the task imposed upon the appellate court would be too great for any court effectively to perform.

In order to determine whether or not the trial court is shown to have abused its discretion, it is necessary only to set out the questions which it required to be answered and the questions which it did not require to be answered, and to state the rules of law which governed these rulings by the trial judge. We undertake to state these rules both for that purpose and for the further reason that it is of some importance to the bar that they be stated.

The questions propounded and the rulings of the trial court are set forth in the Petitions as follows:

The Court required the answers to the following questions:

4. Q: 'Have you ever heard of anybody running an automobile into the power pole which your automobile went into?'

5. Q: 'Have your lawyers, to your knowledge, ever heard of anyone running an automobile into the power pole that your automobile went into on April 15th, 1966?'

8. Q: 'Again, so the record will be clear, from your own knowledge, Judge, and as the Justice of the Supreme Court of Alabama and with the legal background that you have described in your testimony, can you testify today as to any acts or omissions on the part of the Alabama Power Company which would make the Alabama Power Company liable to you in the two capacities in which you have claimed damages in these two lawsuits?'

9. Q: 'And am I correct that you are relying entirely on the advice of your lawyers, Mr. Hill and Mr. Harris in bringing these two lawsuits against the Alabama Power Company?'

10. Q: 'And am I correct that this entire lawsuit and the allegations in the complaint are based not on any personal knowledge of yours, but on investigations which Mr. Hill and Mr. Harris have made and in which they have reported to you; is that correct?'

He did not require answers to the following questions:

1. Q: 'Well, Judge, there are two suits filed against the Alabama Power Company totaling an addendum of $200,000.00. On what basis are you asking the Alabama Power Company to pay you individually and as Executor that sum of money?'

2. Q: 'Now, what do you say the Alabama Power Company did was wrong?'

3. Q: 'Judge, in what way did the City of Montgomery injure you?'

6. Q: 'All right, sir. Now, Judge, payment was made by you, or on your behalf to the Alabama Power Company for the damage done to...