Glover v. American Casualty Insurance & Security Company

• Decision Date: 11 October 1895
• Citation: 32 S.W. 302,130 Mo. 173
• Parties: Glover v. American Casualty Insurance and Security Company, Appellant
• Court: Missouri Supreme Court

32 S.W. 302

130 Mo. 173

Glover v. American Casualty Insurance and Security Company, Appellant

Supreme Court of Missouri, Second Division

October 11, 1895

Appeal from St. Louis City Circuit Court. -- Hon. L. B. Valliant Judge.

Reversed and remanded.

P Taylor Bryan for appellant.

(1) The proceeding for the production of books and papers for inspection takes the place of a bill of discovery in equity and is only granted where the bill of discovery would lie. Larimore v. Bobb, 114 Mo. 446; Arnold v. Water Co., 26 A. 55. (2) The order of court compelling the defendant to produce for the inspection of the plaintiff the contract between the defendants and Beecher, Schenck & Benedict was improvidently made, and was erroneous. First. At the time said order was made there was no issue of fact before the court. There was no pleading to the merits by the defendant, and, consequently, it could not be determined what evidence would "relate to the merits of the action or defense." Thompson v. Railroad, 9 Abb. N. S. 230; Palen v. Johnson, 18 Abb. Pr. 304. Second. To entitle a person to inspection of papers it must appear that they relate to the petitioner's own case. Neither party is allowed a discovery to pry into his opponent's case, or to rebut an anticipated case of his opponent. Thompson on Trials, secs. 746, 749, 753; Sanger v. Seymour, 42 Hun, 641; Andrews v. Townshend, 16 J. & P. 162; Downe v. Nettleton, 61 Conn. 593; Lester v. People, 23 N.E. 387; Railroad v. Tel. Co., 14 S.E. 689. Third. The provisions of the statute do not permit an inspection of papers of an adversary in cases of tort, especially libel. Thompson on Trials, sec. 744; Updyke v. Marvel, 18 Abb. Pr. 266; Bailey v. Dean, 5 Barb. 297; Moot v. Ice Co., 2 Abb. N. C. 143. Pomeroy on Equity [2 Ed.], sec. 197, p. 239. Fourth. On the contrary, the right to inspection before the trial is confined to cases where parties have a common interest in the evidence called for. Raub v. Vanhorn, 133 Pa. St. 573; Lester v. People, 23 N.E. 387. (3) Any uncertainty as to the fact of intentional or willful disobedience of an order of court inures to the benefit of the one accused of such disobedience, and it should appear beyond a reasonable doubt that the accused willfully disobeyed the order of the court before he should be adjudged in contempt. Potter v. Low, 16 How. Pr. 549; Ackroyd v. Ackroyd, 2 Abb. Pr. N. S., 380. (4) The order of the court striking defendant's demurrer from the files was a harsh, unusual and severe punishment, and was not warranted by law. Woods v. De Figaniere, 25 How. Pr. 522; Peel v. Peel, 50 Iowa 521; Rice v. Ehele, 55 N.Y. 518; R. S. 1889, secs. 2177-2181. If the return of the defendant constituted a criminal contempt, and the action of the court was designed (as it apparently was) to vindicate its authority and to punish the defendant, then the proper punishment was that pointed out by the statutes, viz., fine or imprisonment, and this punishment was exclusive of any other. R. S. 1889, secs. 3261, 3262, 3263; Ex Parte Crenshaw, 80 Mo. 447; Wilson v. State, 57 Ind. 71; Woods v. De Figaniere, 25 How. Pr. 522; Ex Parte Robinson, 19 Wall. 505. (5) Whether the act charged was a criminal contempt or a civil contempt, yet, since the alleged contempt was not committed in the immediate view and presence of the court, the court should have notified the accused and given it an opportunity to have purged itself of the contempt. R. S. 1889, sec. 3263; Greene County v. Kindred Rose, 38 Mo. 390; Peel v. Peel, 50 Iowa 521; Russell v. French, 67 Iowa 102; Wilson v. State, 57 Ind. 71; Bank v. Schermerhorn, 38 Am. Dec. 551; 5 Criminal Law Magazine, p. 497, sec. 14.

Chester H. Krum for respondent.

(1) The order requiring appellant to produce the contract with Beecher, Schenck & Benedict was neither erroneously nor improvidently made. The statute does not require that the issues shall have been joined. Upon a showing by plaintiff or defendant, that documents in possession of the adverse party will afford evidence, the trial court is vested with discretion to order inspection. Instead of the case not being at issue being an obstacle to the exercise of that discretion, it rather affords the greater reason for the order. Miller v. Mathew, 5 How. Pr. 160; Stanton v. Insurance Co., 2 Sandf. S.Ct. 662. (2) The right of a plaintiff to discovery in support of his own case is not to be abridged, as to any particular discovery, by the consideration that the matter of such particular discovery may be evidence of the defendant's case in common with that of the plaintiff. Wigram on Discovery, 260; Burrell v. Nicholson, 1 Myl. & Keen, 680. (4) A motion to set aside such an order after it has been made, does not operate as an exception to the order when it was made. These rules are fundamental. Stearns v. Railroad, 94 Mo. 317; Klotz v. Perteet, 101 Mo. 213; State v. Anderson, 96 Mo. 241; Keating v. Hannenkamp, 100 Mo. 161. (1) The order of the trial court striking the demurrer from the files was warranted by the law and justified by the situation. Ex Parte Crenshaw, 80 Mo. 447. (6) The action of the lower court in adjudging appellant guilty of contempt is not open to review. This proposition assumes that the court had jurisdiction to make the order. If it had, there is no review. Ex Parte Murphy (Sup. Ct. Mo., Oct. Term, 1894); State v. Galloway, 5 Col. 326; State ex rel. v. Tipton, 1 Blackf. 166; Mitchell's case, 12 Abb. Pr. 249. (7) In other words, the facts going to show the contempt, as found by the trial court, will not be reviewed on appeal. If on appeal it appears that the court below had jurisdiction, the appellate court will not consider whether the order should or should not have been made. Tolman v. Jones, 114 Ill. 147; Cossart v. State, 14 Ark. 538; McLaughlin's case, 5 W. & S. 276; Anderson v. Dunn, 6 Wheat. 204; Kearney's case, 7 Wheat. 38. (8) Full opportunity having been given to appellant to purge itself of the contempt, the trial court found that its very attempt to so purge itself was more "resentful than respectful." It did not clear itself "by its answers." Re May, F. 737; Re Wooley, 11 Bush, 95; People v. Wilson, 64 Ill. 195.

Gantt, P. J. Burgess, J., concurs; Sherwood, J., not sitting.

OPINION

Gantt, P. J.

Plaintiff instituted this action for libel against the defendant in the circuit court, city of St. Louis, returnable to the April term, 1893, asking for $ 150,000 damages. The basis of the action was that defendant in advertising its business issued a pamphlet containing a list of embezzlers, in which plaintiff's name appeared.

Before there was any pleading to the merits on the part of the defendant, plaintiff obtained an order for defendant to produce for inspection a contract between defendant and certain third persons, Beecher, Schenck & Benedict, general agent of the defendant. In his application the plaintiff alleged that said contract would disclose the extent of the authority of Beecher, Schenck & Benedict to act for defendant; that it therefore contained evidence relating to the merits of the defense, and that without the knowledge of its contents the plaintiff might be surprised at the trial of the case. The court thereupon made an order on defendant to produce said contract for the inspection of plaintiff, or show cause within ten days why it should not do so.

Thereafter defendant made its return and stated that the contract had been "by mutual consent annulled, vacated, and set aside, on or about the first day of January, 1892; that there were but two contracts in existence; one the duplicate of the other, one of which was retained by the company, the other retained by Beecher, Schenck & Benedict. Both of these contracts have been destroyed and they are not now in existence and therefore it is impossible for this company to produce it for the inspection of the court."

Thereafter, having given written notice, the plaintiff made an oral motion asking the court to declare said return insufficient, and that the defendant be adjudged in contempt, and that its pleading be stricken out and that judgment by default be entered against the defendant. The court took this motion under advisement, and thereafter sustained it, and filed an opinion in which it stated: "The return is insufficient; it is entirely consistent with the willful destruction of the paper after the order for its forthcoming was made, and for the purpose of evading the order."

Thereupon the court, without any further notice whatever, adjudged the defendant guilty of contempt, and without permitting defendant to purge itself of contempt, or to show that there was no intentional disrespect, and without permitting defendant to amend its return, proceeded to punish the defendant, and, in the judgment entered sustaining plaintiff's motion, the following language was used: "And it appearing to the court that the defendant is a nonresident corporation, and beyond the reach of the process of this court, so that the usual punishment prescribed for such offenses is unavailing, it is ordered that for its said offense the demurrer of the defendant be stricken out, and judgment by default be entered and a writ of inquiry of damages be awarded."

On the same day that said judgment was rendered, defendant by oral motion moved the court to set aside its said order and permit defendant to amend its return. The court summarily overruled this motion, and refused to permit defendant to amend its return. Thereafter defendant filed its written motion to the same effect, and in support of said written motion filed the affidavit of Midgley, president of the defendant corporation and the person who had sworn to the return of the original order, in which affidavit it was set out that defendant was...