Lacoss v. Town of Lebanon

• Decision Date: 01 May 1917
• Parties: LACOSS et al. v. TOWN OF LEBANON et al.
• Court: New Hampshire Supreme Court

101 A. 364

78 N.H. 413

LACOSS et al.

v. TOWN OF LEBANON et al.

Supreme Court of New Hampshire.

May 1, 1917.

Exceptions from Superior Court, Grafton County.

Bill for discovery by Andrew Lacoss and others against the Town of Lebanon and others. Order for plaintiffs, and defendants except. Exceptions overruled.

On hearing the court found that the plaintiff, an employe of the defendant town, was injured by the breaking of a hoisting apparatus. Soon after the accident the defendant's officers caused a sketch of the place where the accident happened to be made, and a photograph of the hoisting apparatus to be taken, and the prayer of the bill is that the defendant be compelled to discover the sketch and photograph. The court found that the facts they evidence are material to the plaintiff's cause of action and that justice requires that they be produced at this time, and ordered the defendant to discover them, and it excepted.

Hollis & Murchie, of Concord, for plaintiffs. Martin & Howe, of Concord, for defendants.

YOUNG, J. The defendant contends that it cannot be compelled to produce the sketch and photograph at this time, because it caused them to be made after the accident happened, to enable it to defend against any suit that might be brought against it because of the accident. The fact the defendant made the sketch and photograph after the accident happened will not relieve it from the duty of producing them; neither will the fact that the defendant owed the plaintiff no duty to make them, if they are relevant to the plaintiffs cause of action, and their production at this time will tend to promote the discovery qf the truth. If it would, there would be but few cases in which a party could be compelled to produce material documents. So far as appears, the sketch and photograph, instead of being communications from the defendant to its counsel, were prepared before the plaintiff thought of this suit, to perpetuate the evidence of the situation as it existed at the time of the accident. But, however that may be, the fact the defendant reduced the evidence to writing no more relieves it from discovering it than the fact that an individual committed the evidence to memory for the purpose of enabling him to defend any suit that might be brought against him would relieve him from the duty of discovering it. In short, the sketch and photograph are not communications from the defendant to its counsel, but documents that it prepared to perpetuate the evidence of the facts on which it relies as a defense to this suit.

The mere fact these documents are now in the possession of the defendant's counsel does not help it, for if the defendant can be compelled to discover them its counsel also can be compelled to produce them. In other words, a party cannot escape his duty of discovering material documents by merely handing them to his attorney. Petition of Snow, 75 N. H. 7, 70 Atl. 120; 4 Wig. Ev. § 2307. The question, therefore, is whether a party can be compelled to discover material documents when their production is essential to the discovery of the truth. The test to determine that question is to inquire whether the facts they evidence are relevant to the plaintiff's cause of action, or whether they are merely matters of defense; for, while the defendant cannot be compelled to discover either facts or documents that are only relevant to its defense, it can be compelled to discover any facts within the knowledge, information, or belief of its officers, or any documents in its possession, that are relevant to the plaintiff's cause of action.

The fact the sketch and photograph evidence facts on which the defendant also relies is not enough to excuse it from discovering them, for when a writing evidences facts on which both parties rely either may call for its discovery. Reynolds v. Company, 71 N. H. 332, 51 Atl. 1075, 57 L. R. A. 919, 93 Am. St. Rep. 535. The plaintiff must show that the defendant's fault caused his injury, and it is clear that to do that he must reproduce the situation as it existed at the time of the accident, and it is obvious that he can get the necessary facts from the sketch and photograph. There is, however, another way of compelling a party to produce material writings, when their production is necessary to the discovery of the truth, that is more in line with modern ideas of efficiency than a bill of discovery.

Previous to 1857 neither a party to, nor one interested in the event of, a suit could be permitted or compelled to testify; but in that year a law was passed which provided that "no person shall be excused or excluded as a witness in any civil suit or proceeding at law or in equity, by reason of interest in the event of the same as a party or otherwise," with certain exceptions that are immaterial in so far as any questions before this court are concerned. Laws 1857, c. 1952, § 1. While this act put an interested party on the same footing as any one else in so far as calling him as a witness was concerned, it made no provisions for taking his depositions; but the next year an act was passed which remedied that defect. This act contained the proviso that the party giving a deposition "shall not be obliged to answer any questions, or produce any document, the answering or producing of which would tend to criminate himself, or disclose his title to any property the title whereof is not material to the action in the course of which he is interrogated, or to disclose the names of the witnesses by whom, or the manner in which, he proposes to prove his own case." Laws 1858, c. 2090, § 1. It is clear that, while these acts (Laws 1857, c. 1952, § 1; Laws 1858, c. 2090, § 1) were in force, a party who was called as a witness could, and one who was giving a deposition could not, be compelled to produce material writings; and that is true today, for, while certain material changes were made when these acts were incorporated in the Revision of 1867, there is nothing to show an intention on the part of the Legislature to relieve a party who is called as a witness from producing any writing that any other witness would be compelled to produce. These acts appear in the revision as G. S. c. 209:

"Sec. 13. No person shall be excused or excluded from testifying or giving his deposition in any civil cause by reason of his interest therein, as a party or otherwise.

"Sec. 14. No party shall be compelled, in testifying or giving a deposition, to disclose the names of the witnesses by whom nor the manner in which ho proposes to prove his [own] case, nor, in giving a deposition, to produce any writing which is material to his case or defense"

—and are still parts of the law of this state. G. L. c. 228, §§ 13, 14; P. S. c. 224, §§ 13, 14. All the evidence, therefore, the history of this legislation, as well as the language the Legislature used, tends to the conclusion that a party to an action stands in exactly the same position as any other witness, except that he cannot be compelled to disclose the names of the witnesses by whom nor the manner in which he proposes to prove his case. A little thought will show why the Legislature provided that a party may be compelled to produce a writing when he is called as a witness that he would be excused from producing if he were giving a deposition.

The office of evidence is to enable the trier of facts to discover the truth in respect to the matters in dispute between the parties, and experience has shown that compelling a witness to produce a...