Ex parte Rowell

• Decision Date: 13 June 1946
• Docket Number: 5 Div. 415.
• Citation: 26 So.2d 554,248 Ala. 80
• Parties: Ex parte ROWELL.
• Court: Alabama Supreme Court

26 So.2d 554

248 Ala. 80

Ex parte ROWELL.

5 Div. 415.

Supreme Court of Alabama

June 13, 1946

Jacob A. Walker, of Opelika, and A. L. Patterson and J. W Brassell, both of Phenix City, for petitioner.

Denson & Denson, of Opelika, and Thos. W Starlin, of Phenix City, for respondent.

FOSTER Justice.

This is a petition for mandamus to review the ruling of the trial court on two motions made in a cause in which petitioner is plaintiff and William D. Walls as an individual doing business under the name of Blue Bird Cab Company is the defendant.

Motion No. 1 relates to the refusal of the court to require defendant to answer interrogatories Nos. 23, 25, 28, 30, 31 38 and 51, propounded by plaintiff to defendant under section 477, Title 7, Code.

Motion No. 2 relates to the refusal of the court to direct defendant to produce in court the documents referred to and described in those interrogatories. Those interrogatories were directed to be answered by defendant if in answer to other interrogatories defendant should state that he was not engaged in transporting passengers for hire by agents. He did so state.

The suit was by the administratrix of a person killed in an accident while riding in a taxicab owned by defendant. Defendant in answer to other interrogatories stated that the driver of the cab, Borders, paid defendant a stated sum for the use of the cab and kept all fares. It appears from the answers to the interrogatories that defendant claimed that the driver of the cab was not his agent, but was a contractor and operated the cab on his own account and for his own benefit. The complaint alleged that he was defendant's agent acting in the line and scope of his agency.

Interrogatory No. 23 called for the originals or copies of all business licenses then held in the name of Blue Bird Cab Company or similar names. Interrogatory No.

25 called for the original or copies of all insurance policies held by defendant or in the name of the Blue Bird Cab Company 'on automobiles in order to ascertain for what business use or purpose said automobiles were insured.' Interrogatory No. 28 called for the originals or copies of all contracts between defendant and Borders 'with reference to employment, the lease or purchase of taxicabs, licenses and insurance policies in your (defendant's) possession relating to his activities and as a taxicab driven by him.'

Interrogatory No. 30 calls for a statement of the business arrangement with Borders with reference to the taxicab that he regularly or usually used.

Interrogatory No. 31 called for the original or copy of the written contract, if any, which evidenced the arrangement between defendant and Borders.

Interrogatory No. 38 called for the conversation in the presence of defendant in which Borders and defendant participated, by which Borders procured the use of the cab which he was driving, and in which plaintiff's intestate was riding when the accident occurred.

Interrogatory No. 51 calls for a full statement of the nature of the business of defendant, the name in which it was operated, and the nature of his relation to Borders, the services he rendered defendant and the services and equipment defendant furnished him. This was to be answered if defendant had not fully disclosed these matters in the answers which he may have made to prior interrogatories.

Defendant made substantially the same objection to answering each and all of those interrogatories above described: that they call for immaterial, irrelevant, incompetent and illegal evidence.

The matter particularly important for consideration is whether defendant should be required to answer interrogatories as to his liability insurance for the use of the taxis which he owned and which were used in his business by drivers under some sort of arrangement with him. The same principle would apply to business licenses, which he may have held. The difference being that any error in admitting as evidence said licenses would not probably be as damaging as in admitting liability insurance.

Whether such policies are admissible will depend upon their terms, and whether they were procured in an abundance of caution as a protection against such claim as that now being made which it is claimed is not well founded or whether it is evidence that it was procured on the theory that the drivers, such as Borders were the agents of defendant. A policy which covers the liability of defendant for damages arising out of accidents resulting from the operation of the business of defendant, may contain such terms as would shed light on the issue here presented. Moore-Handley Hardware Co. v. Williams, 238 Ala. 189, 189 So. 757, and cases there cited.

In that case plaintiff offered in evidence the policy which was then and there in hand. This Court was considering its admissibility, and held it to be so.

In the instant case the policy is not before the Court, but plaintiff is trying to get access to it either in answer to the interrogatories or by his motion No. 2, on the authority of section 487, Title 7, Code. He is not now offering it as evidence. Its terms may be such as that it would be incompetent and immaterial evidence. Defendant contends that the interrogatories to be answered must call for evidence which is competent and material, and not be such as in the nature of a fishing expedition. But to carry out such theory to such a situation as this the interrogatories would not be useful.

Their purpose is that of discovery of evidential matters or information known to defendant, and not to plaintiff. If plaintiff must show that the answers will be such as to produce evidence which at all events is relevant, plaintiff could not comply with such requirements. The purpose is to find out the facts which will be relevant if they are of such a nature. This cannot in some instances be known until the answers come in. In Collins v. Mobile & Ohio R. Co., 210 Ala. 234, 97 So. 631, the interrogatory required defendant to attach the original or copies of correspondence and of drafts, checks, releases, receipts, or other documents involved pertinent and affecting the defendants. It is not for defendant to determine whether they are pertinent, but for the court. This cannot be done until they are produced. If they are not material the court will sustain the objection. But if they may or may not be material, dependent upon their contents, the court will require them to be produced so as to determine whether they are material.

What is meant by the statement that the evidence called for must be legal evidence is that it must not be prima facie inadmissible. Culver v. Alabama M. Ry. Co., 108 Ala. 330, 18 So. 827; Ex parte Nolen, 223 Ala. 213, 135 So. 337; Montgomery Light & Traction Co. v. Harris, 197 Ala. 358, 72 So. 619.

Interrogatories are not in the nature of a fishing...