Ex parte Hanlon, A--11353

• Decision Date: 29 June 1966
• Docket Number: No. A--11353,A--11353
• Parties: Ex parte Frank HANLON.
• Court: Texas Supreme Court

Page 204

406 S.W.2d 204

Ex parte Frank HANLON.

No. A--11353.

Supreme Court of Texas.

June 29, 1966.

Brown, Sparks & Erwin, Will G. Barber, Austin, for petitioner.

Byrd, Davis & Eisenberg, Austin, for respondent.

NORVELL, Justice.

Frank Hanlon filed an application for writ of habeas corpus in this Court contending that an order of commitment issued by the District Court of Travis County was invalid because the District Court was without authority to issue the order which he was charged with violating. We granted the writ and set down the case for hearing.

It appears that on December 10, 1965, Moses Byrd filed a petition to perpetuate testimony. Rule 187, Texas Rules of Civil Procedure. He alleged that he anticipated instituting an action against Jane Doe, whose true name was unknown to him; that such anticipated action concerned an automobile collision which occurred on U.S. Highway 290 near Manor, Texas, at approximately 7:00 p.m. on the evening of May 24, 1965; that he had reason to believe that Jane Doe was the driver of an automobile which may have been the proximate cause of such collision and the resulting injuries which he, Byrd, sustained and that the exact name, address and present whereabouts of Jane Doe were unknown to him, even after exhaustive investigation. Byrd further averred that he wished to perpetuate the testimony of Frank Hanlon (the relator here) and that said Hanlon would be examined 'concerning the exact name, address, present whereabouts and other matters leading to the discovery of the exact name, address and present whereabouts of Jane Doe, which information is necessary for (Byrd) to prepare and prosecute his claim against Jane Doe'. To this end, Byrd requested the court to enter an order authorizing him to take the oral deposition of Frank Hanlon. Byrd also requested the issuance of a subpoena duces tecum directing Frank Hanlon to bring with him such papers and records as will be needed by him in furnishing the information sought by Byrd as petitioner. The Court directed that the deposition be taken and thereafter specifically ordered Hanlon 'to answer questions with respect to the exact name, address and present whereabouts of Jane Doe * * *.' Upon the advice of counsel, Hanlon refused to make answer, whereupon the Court found him in contempt and ordered the Sheriff of Travis County to take him into custody and 'restrain him of his liberty until further orders of the court or until he be discharged thereform according to law.'

It is Hanlon's position that he may not be forced to answer questions as to the exact name, address, and exact whereabouts of Jane Doe because he is claim manager and investigator for Millers Mutual Fire Insurance Company of Texas, the insurance carrier for T. E. Lender, who was the driver of one of the automobiles figuring in the Highway 290 collision, and it was through his investigation of such collision that he ascertained the identity and location of the driver (Jane Doe) of the third vehicle at the scene of the accident. Hanlon says that he communicated this information to Millers Mutual and although he does not now remember the name of Jane Doe, he has a written record thereof in his investigation file. Relator asserts that the District Judge's order of contempt and commitment is void because it is in the teeth of a proviso contained in Rule 186a and therefore subject to attack by habeas corpus. The rule provides that:

'Any party may take the testimony of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes. * * * Provided, however, that the rights herein granted shall not require the production of written statements of witnesses or extend to communications passing between agents or representatives or the employees of either party to the suit, or communications between any party and his agents, representatives, or their employees, where made subsequent to the occurrence or transaction upon which the suit is based, and made in connection with the prosecution, investigation, or defense of such claim, or the circumstance out of which same has arisen; and provided further, That the rights herein granted shall not require disclosure of information obtained in the course of an investigation of a claim or defense by a person employed to make such investigation.'

In support of the validity of the order, Byrd asserts a number of contentions. He urges that in essence, the proceeding which he instituted is an equitable bill of discovery under Rule 737. Obviously discovery is one of the purposes of the deposition sought to be taken, but the proceedings come squarely within the provisions of Rule 187 relating to the taking of depositions to perpetuate testimony. In paragraph 4 of Rule 187, it is provided that, 'The deposition rules not inconsistent with this rule shall apply to the Taking, signing, returning, objections to, and use of such depositions.' We think it quite clear that the provisos set forth in Rule 186a have application to depositions taken under Rule 187.

Byrd also argues that the Rule 186a provisos have no application to the present situation because T. E. Lender, whose automobile insurance is carried by Millers Mutual Fire Insurance Company is not a party to the proceedings. The first proviso mentions parties--i.e., communications between agents or representatives of parties, and communications between parties and their agents and representatives. However, the second proviso (which we have italicized) does not mention parties and obviously was intended to extend the scope of the exception beyond that set forth in the first proviso. It simply provides that the rights 'herein granted (to take a deposition) shall not require disclosure of information obtained in the course of an investigation of a claim or defense by a person employed to make such investigation'. This language clearly applies to Hanlon who was employed to make an investigation of the collision. It may be further said that the effect of adopting this construction would be to effectively destroy the provisos of Rule 186a. It would only be necessary to proceed under Rule 187 where the only person who could be properly designated as a 'party' would be the one petitioning for a commission to take a deposition to perpetuate testimony.

Byrd further earnestly contends that the situation disclosed by the present record constitutes an exception to the provisos of Rule 186a. It is said that in issuing the order directing Hanlon 'to answer questions with respect to the exact name, address, and present whereabouts of Jane Doe', the trial judge was exercising a discretion lawfully vested in him; that the scope of the order and its supporting motion (referred to in the order) is extremely narrow and has for its only purpose the ascertaining of the name, address and present whereabouts of Jane Doe, allegedly a person against whom Byrd has or may have a cause of action; that the purpose of the provisos contained in Rule 186a is to protect the work product of a litigant or prospective litigant; that the enforcement of the provisos must to some extent operate to shut out the truth; and that in the unusual factual situation disclosed by the present record, an examination of policy considerations is called for. It is pointed out that when the identity of a proposed defendant who may have done serious injury to a prospective plaintiff is at issue, the policy consideration of preserving a work product is little served while an important and vital policy of vindicating justice is jeopardized. In this connection, it is stated that after thorough investigation, Byrd and his attorneys have been unable to ascertain the identity of Jane Doe as far as they know, Hanlon is the only person who does know her identity.

While we recognize the force of Byrd's...