Goldman v. Checker Taxi Company

• Decision Date: 19 December 1963
• Docket Number: No. 14083.,14083.
• Citation: 325 F.2d 853
• Parties: Irving S. GOLDMAN, Plaintiff-Appellant, v. CHECKER TAXI COMPANY, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

325 F.2d 853 (1963)

Irving S. GOLDMAN, Plaintiff-Appellant, v. CHECKER TAXI COMPANY, Inc., Defendant-Appellee.

No. 14083.

United States Court of Appeals Seventh Circuit.

December 19, 1963.

Thomas F. Tobin, Joseph B. Lederleitner, Chicago, Ill., for plaintiff-appellant.

Julius Jesmer, Robert Jay Nye, Chicago, Ill., Jesmer & Harris, Chicago, Ill., of counsel, for defendant-appellee.

Before SCHNACKENBERG, CASTLE, and KILEY, Circuit Judges.

KILEY, Circuit Judge.

Plaintiff has appealed from a judgment upon a verdict for defendant in a diversity personal injury case.

Plaintiff testified that he was injured on February 12, 1957, while a passenger in a Checker taxi cab in Chicago; that the cab in which he was riding was struck from the rear by another Checker cab while stopped in a line of traffic on Archer Avenue; and that he did not think anybody got out of either cab after the accident.

Defendant denied the incident occurred, thus raising a fundamental issue at the trial. The decisive question before us arises from that issue. In this court defendant conceded that the verdict can be justified only upon a finding that the accident never occurred.

The fundamental issue rendered important the circumstances surrounding plaintiff's report of the occurrence to the defendant. There were discrepancies in plaintiff's testimony about the memorandum he made after the occurrence, and in his identification of the cab and driver. A report of defendant showed that the cab driver's name was unknown to plaintiff when he called defendant to report the occurrence. There was testimony that neither alleged Checker driver reported the occurrence. In answer to a discovery interrogatory defendant indicated that the cab specified by plaintiff had not suffered damages the day of the occurrence.

In view of these circumstances, we think the district court properly denied plaintiff's motion for a directed verdict.

Before the trial plaintiff, pursuant to Rule 34,¹ moved for the production of documents relating to, among other things, personnel and payroll records of "Lewis Danco"; reports of accidents on February 12, 1957; and "trip sheets" and repair bills on "Taxi Cab Nos. 4093 and 4673" for damages on that date.² The motion was supported by a sworn statement that Checker had denied the happening of the occurrence. The district court denied the motion with respect to the records pertaining to the driver. Though it allowed the motion with respect to an important part of the remainder of the documents sought, defendant produced none of the documents, but merely answered, as if to interrogatories, with its own interpretation of the documents.

We agree with plaintiff that the district court's limitation of the motion — worsened by defendant's failure to comply with the district court's order — was prejudicially erroneous. Plaintiff was entitled under Rule 34 to have the documents produced for his inspection, and it was not enough for defendant to submit merely its own interpretation of the documents. In view of our conclusion, we need not pass on the question of the propriety of the court's quashing of a subpoena duces tecum directing defendant to produce employment records of the driver.

Rules 26 to 37, the discovery-deposition provisions of the Federal Rules, were intended to insure "proper litigation", Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451 (1947), by making the "trial less a game of blindman's buff and more a fair contest with the basic issues and facts disclosed to the fullest practicable extent." United States v. Procter & Gamble Co., 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). Accordingly, these provisions authorize either party to "compel the other to disgorge whatever facts he has in his possession." Hickman v. Taylor, supra.

Plaintiff's motion was not given the "broad and liberal treatment" to which it was entitled. Hickman v. Taylor, supra. The limitation by the district court and defendant's failure to comply with the order as given had the effect of keeping the jury in the dark about the fundamental issue of occurrence. As a result, the only evidence plaintiff was able to produce of the occurrence to the jury was his own testimony. All other evidence, or information which might lead to evidence, was under the control of the defendant, with the exception of the interpretation of the documents which defendant furnished plaintiff.

It is within the discretion of the district court to place bounds on the extent of discovery.³ We think, however, that we should interfere with the district court's ruling, both because its limitation was improvident and it affected plaintiff's substantial rights. Roebling v. Anderson, 103 U.S.App.D.C. 237, 257 F.2d 615, 619 (1958).

We now dispose of several points raised by defendant in support of the judgment: We distinguish Sue v. Chicago Transit Authority, 279 F.2d 416 (7th Cir. 1960), since there the information in documents sought was already known and no showing of prejudice was made. Plaintiff's motion in the case at bar, indicating by facts the issue of occurrence, was a sufficient showing of "good cause" under Rule 34. Defendant did not contend below, except as to certain "trip sheets," that plaintiff was precluded from inspection of the documents because he did not show they existed. The documents were records kept in the ordinary course of defendant's business and presumably existed. McDowell Associates, Inc. v. Pennsylvania RR. Co., 20 F.R.D. 219 (S.D.N.Y.1957). Had the issue of existence been raised, plaintiff could have made proof of existence.⁴

There is no basis for the inference that Rule 34 was being improperly used here on a "fishing expedition," to "discover what exists" rather than to ...