Ingram v. Boston & Maine R. R.

• Decision Date: 01 March 1938
• Docket Number: No. 2963.,2963.
• Parties: INGRAM v. BOSTON & MAINE R. R.
• Court: New Hampshire Supreme Court

197 A. 822

INGRAM

v. BOSTON & MAINE R. R.

No. 2963.

Supreme Court of New Hampshire. Rockingham.

March 1, 1938.

Transferred from Superior Court, Rockingham County; James, Judge.

Action of the case by Ethel Ingram, administratrix, against the Boston & Maine Railroad, to recover damages resulting from the death of plaintiff's intestate. Transferred on the defendant's exception to an order granting plaintiff's motion for discovery.

Exception overruled.

Motion for discovery, in aid of an action of the case to recover damages resulting from the death of the plaintiff's intestate on December 27, 1935, at Barberry Lane crossing in Portsmouth, in a collision between the defendant's train and an automobile in which the plaintiff's intestate was traveling. The crossing in question was protected by an automatic signaling device which the plaintiff alleges was not in operation at the time of the accident.

At the hearing on the motion in the superior court, the plaintiff claimed that this signaling device was defective, insufficient, and out of repair for some weeks preceding the accident. The trial court ordered the defendant to produce in advance of trial for inspection by the plaintiff the following documents: "(1) Its plans, blueprints, records, and other memoranda showing all wires, battery connections, relays, bells, lights, tracks, switches, electric contacts and any and all other devices pertaining to or having to do with the operation on December 27th of the automatic crossing signal located at said crossing. (2) Its reports, records, and other memoranda, concerning or pertaining to the operation, maintenance, repair, and inspection of said automatic crossing signals for six months prior to the accident."

Transferred by James, J., on the defendant's exception to this order.

Robert W. Upton and Laurence I. Duncan, both of Concord, for plaintiff. Hughes & Burns and Charles F. Hartnett, all of Dover, for defendant.

MARBLE, Justice.

Although section 8 of chapter 336 of the Public Laws provides for the production of the books, records, and papers of domestic corporations, it does not in our opinion deprive the court of its equitable power to order discovery. "Notwithstanding * * * changes, made by statutes, which seem to remove the very foundation for any interposition by equity, it has generally been held that the legislature has not abridged nor affected the auxiliary equitable jurisdiction to entertain suits for mere discovery of evidence and production of documents, and that such equitable jurisdiction still exists, where not expressly abolished by the statutes." 1 Pomeroy, Eq. Jur., 4th Ed., § 193, pp. 269, 270. See, also, Bispham, Prin. of Eq., 10th Ed., § 558; Reynolds v. Burgess Sulphite Fibre Company, 71 N.H. 332, 345, 51 A. 1075, 57 L.R.A. 949, 93 Am.St.Rep. 535.

In exercising this equitable power, however, a trial judge should be careful to observe the very definite limits of his authority. "The fundamental rule on this subject is, that the plaintiff's right to a discovery does not extend to all facts which are material to the issue, but is confined to facts which are material to his * * * cause of action; it does not enable him to pry into the defendant's case, or to find out the evidence by which that case will be supported." 1 Pomeroy, Eq.Jur., 4th Ed., § 201. On the other hand, although the plaintiff is not entitled to a statement of the evidence material to the defense, he may nevertheless compel the discovery of all the facts material to his own cause of action, even though the defendant's evidence may thereby be incidentally disclosed. Id., citing LaCoss v. Lebanon, 78 N.H. 413, 414, 101 A. 364; Bispham, Prin. of Eq., 10th Ed., § 561.

It is no objection that the evidence sought may be merely cumulative, ...