Jeppesen v. Swanson, 36414

CourtSupreme Court of Minnesota (US)
Citation243 Minn. 547,68 N.W.2d 649
Docket NumberNo. 36414,36414
PartiesEinar J. JEPPESEN, Respondent, v. Gilbert SWANSON and Robert Gardner, Individually and d/b/a Swanson Excavating Company, Relators.
Decision Date11 February 1955

Page 649

68 N.W.2d 649
243 Minn. 547
Einar J. JEPPESEN, Respondent,
Gilbert SWANSON and Robert Gardner, Individually and d/b/a
Swanson Excavating Company, Relators.
No. 36414.
Supreme Court of Minnesota.
Feb. 11, 1955.

Syllabus by the Court

Rule 34 of the Rules of Civil Procedure does not permit discovery of the amount of insurance carried by a defendant in an action brought to recover damages alleged to have been suffered in an automobile accident for the sole purpose of evaluating such case in order to determine whether it should be settled.

Meagher Geer Markham & Anderson, O. C. Adamson II and David W. Nord, Minneapolis, for relators.

William H. DeParcq, Donald T. Barbeau, Minneapolis, O'Neill J. Grathwol, Excelsior, for respondents.

Wright W. Brooks, Minneapolis, amicus curiae.

KNUTSON, Justice.

This proceeding arises out of an action for personal injuries brought by plaintiff against defendants. The complaint alleges that an employee of defendants negligently

Page 650

drove a truck owned by defendants which struck plaintiff. Substantial personal injuries are claimed. Defendants interposed an answer admitting ownership of the truck and the relationship of employer but denied the occurrence of the alleged accident. The answer also contains an affirmative defense of contributory negligence and puts plaintiff to his proof as to damages.

[243 Minn. 548] After issue was thus joined, plaintiff, through his attorneys, moved the district court for an order permitting him to inspect the policy of liability insurance in effect on defendants' truck at the time of the alleged accident under Rule 34 of the Rules of Civil Procedure. This motion was accompanied by an affidavit of one of plaintiff's attorneys stating that, before plaintiff and his attorneys can properly evaluate a figure for settlement or trial, it is necessary that they know the policy limits on defendants' truck and that defendants have refused to give them this information. The trial court granted plaintiff's motion and ordered the production of the insurance policy.

The portion of the affidavit which states the reasons for the desired disclosure reads as follows:

'That before plaintiff and his attorneys can properly evaluate a figure for either settlement or trial that would properly dispose of this matter, it is necessary that the plaintiff be apprised of the policy limits in force and effect on defendant's motor vehicle at the time of the occurrence herein.'

On oral argument, counsel for plaintiff, with commendable frankness, admitted that the only purpose the information sought under this discovery could serve would be to assist plaintiff in evaluating his case for the purpose of settlement. Thus, the question is squarely presented to us whether disclosure may be had under Rule 34, as limited by Rule 26.02, of the amount of liability insurance carried by a defendant in a personal injury action for the sole purpose of assisting plaintiff in evaluating his case for the purpose of effecting a settlement.

The trial courts of this state are divided on the question. In order to establish uniformity among our courts, we issued our alternative writ of prohibition so that the matter could be expeditiously determined.

Rule 34 of the Rules of Civil Procedure is identical with the federal rule. Fed.Rules Civ.Proc. 28 U.S.C.A. 1 It reads as follows:

[243 Minn. 549] 'Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30.02, the court in which an action is pending may (1) order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by Rule 26.02 and which are in his possession, custody, or control; or (2) order any party to permit entry upon designated land or other property in his possession or control for the purpose of inspecting, measuring, surveying, or photographing the property or any designated object or operation thereon within the scope of the examination permitted by Rule 26.02. The order shall specify the time, place, and manner of making the inspection and taking the copies and photographs and may prescribe such terms and conditions as are just.'

The scope of the discovery permitted is the same as that provided by Rule 26.02 for taking depositions. 2 Rule 26.02 is identical with Federal Rule 26(b) except for the

Page 651

addition of the last sentence. 3 Rule 26.02 reads as follows:

'Unless otherwise ordered by the court as provided by Rule 30.02 or 30.04, the witness may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence. The production[243 Minn. 550] or inspection of any writing obtained or prepared by the adverse party, his attorney, surety, indemnitor, or agent in anticipation of litigation or in preparation for trial, or of any writing that reflects an attorney's mental impressions, conclusions, opinions, or legal theories, or, except as provided in Rule 35, the conclusions of an expert, shall not be required.'

At the outset we must bear in mind that the rules of civil procedure were adopted pursuant to authorization granted by the legislature. L.1947, c. 498. The enabling act itself prescribed the limits beyond which we may not go. The title of the act reads:

'An act authorizing the supreme court to regulate by rules the pleading, practice, and procedure in civil cases in all the courts of this state.'

Section 1 provides:

'The supreme court of this state shall have the power to Regulate the pleadings, practice, procedure, and the forms thereof in civil actions in all courts of this state, other than the probate courts, by rules promulgated by it from time to time. Such rules shall not abridge, enlarge, or modify the substantive rights of any litigant.' (Italics supplied.)

It is obvious that our power under this act is limited to the regulation of 'pleadings, practice, procedure, and the forms thereof in civil actions.'

Within the scope in which they operate, the rules should be given liberal construction so as to effectuate the purpose for which they were adopted. Rule 1 provides:

'These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature, with the exceptions stated in Rule 81. They shall be construed to secure the just, speedy, and inexpensive determination of every action.'

There are, however, and must be some boundary limitation beyond which we should not go. In Hickman v. Taylor, 329 U.S. 495, 507, 67 S.Ct. 385, 392, 91 L.Ed. 451, 460, the United States Supreme Court said:

[243 Minn. 551] 'We agree, of course, that the deposition-discovery rules are to be accorded a broad and liberal treatment. No longer can the time-honored cry of 'fishing expedition' serve to preclude a party from inquiring into the facts underlying his opponent's case. Mutual knowledge of all the relevant facts gathered by both parties is essential to proper litigation. To that end, either party may compel the other to disgorge whatever facts he has in his possession. The deposition-discovery procedure simply advances the stage at which the disclosure can be compelled from the time of trial to the period preceding it, thus reducing the possibility of purprise. But Discovery, like all matters of procedure, has ultimate and necessary boundaries.' (Italics supplied.)

Page 652

At the time these rules were adopted the discovery and pre-trial sections were most vigorously opposed by members of the bar, who feared that they would be abused. It is obvious from the divergent views of trial courts that these rules have been the most difficult to administer. In the Hickman case the court had before it a case involving an attempt to compel disclosure of the so-called 'work product' of an attorney. With respect to the scope of the discovery rule, the court said, 329 U.S. 500, 67 S.Ct. 388, 91 L.Ed. 457:

'The pre-trial deposition-discovery mechanism established by Rules 26 to 37 is one of the most significant innovations of the Federal Rules of Civil Procedure. Under the prior federal practice, the pre-trial functions of notice-giving, issue-formulation and fact-revelation were performed primarily and inadequately by the pleadings. Inquiry into the issues and the facts before trial was narrowly confined and was often cumbersome in method. The new rules, however, restrict the pleadings to the task of general notice-giving and invest the deposition-discovery process with a vital role In the preparation for trial. The various instruments of discovery now serve (1) as a device, along with the pretrial hearing under Rule 16, to narrow and clarify the basic issues between the parties, and (2) as a device for ascertaining the facts, or information as to the existence or whereabouts of facts, Relative to those issues. Thus civil trials in the federal courts no longer need be carried on in the dark. The way is [243 Minn. 552] now clear, consistent with recognized privileges, for the parties to obtain the fullest possible knowledge of the issues and facts before trial.' (Italics supplied.)

The question now before us is one of first impression in this court. There is not a...

To continue reading

Request your trial
45 cases
  • Lucas v. District Court of Pueblo County in Tenth Judicial Dist., 18859
    • United States
    • Colorado Supreme Court of Colorado
    • March 9, 1959 is virtually substituted as a party (Maddox v. Grauman, Ky., 265 S.W.2d 939, 41 A.L.R.2d 964; dissent in Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649, 658), as far as the investigation and conduct of the defense is concerned, it would seem to be relevant, if not indispensable, ......
  • Great Am. Ins. Co. v. Murray, No. B--1170
    • United States
    • Supreme Court of Texas
    • January 29, 1969
    ...(1963); Sanders v. Ayrhart, 89 Idaho 302, 404 P.2d 589 (1965); Muck v. Claflin, 197 Kan. 594, 419 P.2d 1017 (1966); Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649 (1955); Page 267 State ex rel. Hersman v. District Court of Sixth Judicial Dist., 142 Mont. 139, 381 P.2d 799 (1963); State e......
  • Wasmund v. Nunamaker, No. 40816
    • United States
    • Supreme Court of Minnesota (US)
    • June 6, 1967
    ...remedy at law; or where, in rare instances, it will settle a rule of practice affecting all litigants. See, also, Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649; Boldt v. Sanders, 261 Minn. 160, 111 N.W.2d Page 580 In Brown v. St. Paul City Ry. Co., 241 Minn. 15, 62 N.W.2d 688, 44 A.L.R.......
  • State ex rel. Bush v. Elliott, No. 49453
    • United States
    • United States State Supreme Court of Missouri
    • January 14, 1963
    ...the cases so holding are: Cooper v. Stender, D.C.Tenn., 30 F.R.D. 389; McDaniel v. Mayle, D.C.Ohio, 30 F.R.D. 399; Jeppesen v. Swanson, 243 Minn. 547, 68 N.W.2d 649; McClure v. Boeger, D.C.Pa., 105 F.Supp. 612; McNelley v. Perry, D.C.Tenn., 18 F.R.D. 360; Gallimore v. Dye, D.C.Ill., 21 F.R.......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT