Ex parte Bott
| Decision Date | 01 May 1946 |
| Docket Number | 30476. |
| Citation | 146 Ohio St. 511,66 N.E.2d 918 |
| Parties | Ex parte BOTT. |
| Court | Ohio Supreme Court |
Syllabus by the Court.
1. A party to an action may through proper subpoena issued by a notary public compel an adverse party to produce before the notary as evidence specified papers and documents in the adverse party's possession, and if he refuses to produce such papers and documents for no other reason than that his refusal is on advice of counsel, he may, after having been instructed by the notary to produce them, be committed for contempt for such refusal.
2. An officer of a corporation having in his possession and custody books and papers of such corporation, which are described in a subpoena duces tecum directed to him, must produce such books or papers upon proper demand or be held in contempt for refusal to do so.
Appeal from Court of Appeals, Cuyahoga County.
The Consumers Home Equipment Company of Detroit, hereinafter called Consumers, was engaged in the sale of household furnishings and equipment at retail by solicitation from door to door. The company maintained an office in Cleveland with Theodore I. Bott as its manager, Joseph Friedman as its credit manager, and Edward Garber as one of its salesmen.
In October 1944, a corporation was organized as the Peoples Home Equipment Company, hereinafter called Peoples, to engage in the same line of business in the city of Cleveland. Garber left Consumers in February 1944, Friedman in October 1944 and each went with Peoples. Bott continued with Consumers and took no active part in the business of Peoples until February 1945 when he left Consumers, and from that date he devoted a part of his time to the business of Peoples, and become its president.
Consumers claimed that shortly preceding the time these men left it its place of business was burglarized and merchandise, valued at approximately $1,200, was removed. Money in the place of business was not disturbed. This alleged burglary was reported by Bott. Neither Bott, Friedman nor Garber was arrested nor was either charged with the burglary prior to April 26, 1945.
On the date last named, Consumers instituted an action in the Common Pleas Court of Cuyahoga county against Peoples, Bott and Friedman. The petition in that action alleged that in May 1943 Bott was employed by Consumers as its manager and Friedman as its credit manager; that while in the employ of Consumers, Bott and Friedman entered into a conspiracy to cheat and defraud Consumers of its assets and, in furtherance of such conspiracy, caused the alleged burglary to be made and thereby secured to themselves merchandise of Consumers to the value and amount of $1,200; that in furtherance of the conspiracy they secured a location near the place of business of Consumers, incorporated as Peoples Home Equipment Company and operated a similar business with merchandise secured as above alleged and with additional merchandise of the value of $3,485.28, which they surreptitiously secured from time to time from Consumers, no part of the value of which had been paid to Consumers by the defendants or any of them; that the defendants are now operating such business on West Third street in Cleveland with merchandise belonging to Consumers or with the proceeds realized in the disposition of the merchandise of Consumers; that defendants are operating the business on the good will established by Consumers in the city of Cleveland; and that they are making sales to customers obtained by the defendants while they were employed and paid by Consumers. The prayer of the petition was that the individual defendants be restrained and enjoined from continuing to operate such business; that a receiver be appointed to take over the business and manage it; that the business be liquidated and the proceeds applied to the claim of Consumers, which claim amounts to $4,685.28 and that a judgment be awarded against Bott and Friedman for such amount.
To this petition defendants Bott and Friedman each filed an answer in the form of a general denial.
Sometime later, Consumers took the deposition of Bott in that action, Before Henry W. Toll as notary public. The notary public issued a subpoena duces tecum requiring Bott to produce Peoples' salesmen's order slips and collectors' route cards showing sales from October 1, 1944, to January 1, 1945, upon which cards are recorded the name and address of customers and purchases made.
Bott brought with him the order slips and collectors' route cards. When counsel for Consumers asked for inspection of the slips and cards, Bott refused to permit the inspection.
The notary declared Bott, as a witness, in contempt and issued a writ of attachment to the sheriff of Cuyahoga county, who took Bott into custody. Bott then instituted the instant proceeding in habeas corpus in the Court of Appeals of Cuyahoga county, seeking his discharge from the custody of the sheriff. The Court of Appeals, on July 9, 1945, granted Bott's application and discharged him.
Consumers, which is not a party to the habeas corpus proceeding, filed a notice of appeal to this court on questions of law. Bott filed a motion to dismiss the appeal but this motion was overruled and the case is now in this court for review.
Stanley B. Gilson and J. W. McCarron, both of Cleveland, for appellant, Consumers Home Equipment Co.
Suggs Garber, William M. Byrnes, and William A. Kane, all of Cleveland, for appellee, Theodore I. Bott.
The question for the determination of this court may be stated as follows:
In an action brought by a merchandising corporation against another corporation and certain of its officers, engaged in the same line of business in the same city, to recover the value of merchandise which plaintiff corporation claims was stolen from it by certain of its former employees who left its employ and thereafter organized the defendant corporation, became officers of, and engaged in selling for, the defendant corporation the same types of merchandise as sold by the plaintiff corporation, may a notary public as such, at the instance of the plaintiff corporation taking the deposition of one of such officers of the defendant corporation before trial of the action, require such witness to produce sales slips and route cards used in the business of the defendant corporation for a period of three months after it engaged in business, upon which slips and cards are recorded the names and addresses of the defendant's purchasing customers, and may such notary, on refusal of the witness to produce such slips and cards without making claim or giving a reason for such refusal, commit such witness for contempt?
Consumers claims that it has a right to take the deposition of the witness and to require him to produce the slips and cards in question on the theory that they will show that Peoples in the early months of its operation sold merchandise which its officers, while in the employ of Consumers, stole from the latter. On the other hand, Bott claims that this action was brought by Consumers solely for competitive purposes and that the records in question are sought by Consumers, not in good faith, but for the purpose of an unfair business campaign to harass the individual defendants and their customers.
In the process of obtaining pertinent and legitimate information for the determination of justiciable questions, courts encounter great difficulty in balancing the interests of public and private rights against the interest of private security. The matter is made more difficult where evidence on controversial questions is taken, not in open court where its competency and relevancy may be judicially determined, but before trial before a notary public whose power to determine competency and relevancy is extremely limited. One observation may be appropriately made to the effect that in order that truth may prevail and wrong may not be shielded, courts should be slow to suppress evidence which perchance may turn out to be competent and relevant and to reveal the truth.
By virtue of Sections 11550 to 11555, both inclusive, General Code, a party to an action is given broad authority to inspect books, papers and documents under the control of the adverse party, and to require the adverse party to produce them as evidence either in court or before an officer authorized to take testimony in the case; and Section 11503, General Code, provides that, by subpoena issued to a witness, a notary public may require the witness to testify and to bring with him any book or writing or other thing under his control, which he may be compelled to produce as evidence.
In connection with the cross-examination of the witness Bott by counsel for Consumers, the record shows the following proceedings:
route cards, do you have those with you? A. Yes.
* * *
'Mr. McCarron: Well, we want the order slips from which sales are recorded and the names of customers, that's the first thing we want.
'
'
'Mr. Garber: Objection.
'Mr. Gilson: Is there an objection to the question or objection to producing them?
'Mr. Garber: No, the objection is to producing them.
'The witness: Upon...
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