Lefebvre v. Somersworth Shoe Co.
| Citation | 41 A.2d 924 |
| Parties | LEFEBVRE v. SOMERSWORTH SHOE CO. et al. |
| Decision Date | 03 April 1945 |
| Court | Supreme Court of New Hampshire |
OPINION TEXT STARTS HERE
COPYRIGHT MATERIAL OMITTED.
Exceptions from Superior Court, Strafford County; Lorimer, Judge.
Case for negligence by Aldea L. Lefebvre, administratrix, against Somersworth Shoe Company for the death of plaintiff's husband. Motion by plaintiff for discovery of certain records in the files of the division of industrial hygiene of the State Board of Health. To review an order affording access to the records, the company and the state each bring exceptions.
Exceptions overruled.
Case for negligence. The plaintiff claims that the defendant company negligently caused the death of her husband while in its employ by furnishing him a certain poisonous fluid with which to do his work. After entry of the action, the plaintiff filed a motion alleging that the company shortly after the death of her intestate sent to the Division on Industrial Hygiene of the State Board of Health of the State of New Hampshire samples of a certain poisonous fluid provided for the use of the said deceased, that these were analyzed and the results filed, that a request for the information contained in said filed has been refused and that these records are essential and material evidence for the proof of the plaintiff's case. Said motion prayed for the discovery of the files in said Division of Industrial Hygiene. September 14, 1944, Lorimer, C. J., ordered that said Division give the attorneys of the parties access to the original records, which order was renewed October 4, 1944, after a further hearing. Both the company and the state duly excepted to this order and a bill of exceptions was allowed each defendant.
William H. Sleeper, of Exeter, for plaintiff.
Hughes & Burns, and Walter A. Calderwood, all of Dover, for defendant Company.
Ernest R. D'Amours, Asst. Atty. Gen., for defendant State.
It is true that the records of the analyses referred to in the order against the Division of Industrial Hygiene were not made for the purpose of furnishing information to the public as a whole and are not public records in that sense. ‘It has been held that there is no general right of inspection of records of executive departments of the government which are not intended as notice, but are kept merely as evidence of the transactions in the departments.’ 45 Am.Jur. 429. In order to make the inspection desired the plaintiff must establish her equitable right.
In a bill or on a motion for discovery of evidence, ‘its production will be ordered if the court can fairly find that it may in any way be material to the plaintiff's cause.’ Ingram v. Boston & M. R., 89 N.H. 277, 279, 197 A. 822, 823. See also, LaCoss v. Town of Lebanon, 78 N.H. 413, 101 A. 364, and Reynolds v. Burgess Sulphite Fibre Co., 71 N.H. 332, 51 A. 1075, 57 A.L.R. 949, 93 Am.St.Rep. 535. Because of the liberal laws in this state for the taking of depositions in advance of trial, the ordinary use of the equitable remedy of discovery here is for the inspection of documents and real evidence. In order that inspection of a document be ordered, it need not appear that the evidence is competent. That question is reserved for the offer at the trial of the main case. ‘If, under any circumstances, it might be introduced as evidence, that is sufficient for the present case.’ Peck v. Ashley, 12 Metc. 478, 481. The original record that is the subject of the order of the Superior Court would be admissible as evidence at the trial of the tort action in the event that the expert who made the analyses could not recollect them but could verify the records. Graves v. Boston & M. R., 84 N.H. 225, 149 A. 70. Moreover, this court has held that the phrase, material to the plaintiff's case, may mean simply to the proper preparation of his case. In Davis v. Central N. H. Power Co., 79 N.H. 377, 109 A. 263, the trial Court found ‘that the plaintiff was unable properly to prepare his case without an opportunity to inspect the documents in question and that justice required their production.’ An exception to an order for their production was overruled. It was clearly findable that the information prayed for, to wit, the nature of the liquid used by the plaintiff's intestate, was material to the plaintiff's case. It may be vital. The motion for discovery is not a mere prying into the defense.
There is no privilege on the part of either defendant to keep secret the records sought. ‘Every member of the community has a general and public duty to attend in court and to disclose all matters known to him, to the end that truth may be established in litigation.’ Wig. Code of Evidence, 2d Ed., 396. No claim of privilege can be made under chapter 155 of the Revised Laws, as section 3 of that chapter is limited to reports made by physicians to the state board of health. In the present case it was findable that the report and the request for analysis came...
To continue reading
Request your trial
-
Arcell v. Ashland Chemical Co., Inc.
...from any other source. See Pottetti v. Clifford, 146 Conn. 252, 150 A.2d 207, 212 (Sup.Ct.Err.1959); Lefebvre v. Somerset Shoe Co., 93 N.H. 354, 41 A.2d 924, 927 (Sup.Ct.1945). In its third-party complaint MCA alleges that American Can "has in its sole possession, or at its disposal, knowle......
-
Gordon v. HNS MANAGEMENT CO., INC.
...that operates to control actions of state or to subject it to liability is deemed action against state); Lefebvre v. Somersworth Shoe Co., 93 N.H. 354, 41 A.2d 924 (1945) (action against state officer in which state has no pecuniary interest or substantive right to protect is not action aga......
-
Riddle Spring Realty Co. v. State
...they be answered (See Rust v. Roberts, 171 Cal.App.2d 772, 341 P.2d 46) it was not an abuse of discretion to do so. Lefebvre v. Somersworth Shoe Co., 93 N.H. 354, 41 A.2d 924. The other interrogatories which the Trial Court refused to order the State to answer dealt generally with the detai......
-
MacPherson v. Boston Edison Co.
...partnership books denied against defendant's partner). Bray, Discovery (1885 ed.) pages 39-89. Compare, however, Lefebvre v. Somersworth Shoe Co., 93 N.H. 354, 357, 41 A.2d 924 (discovery allowed against a State agency for analysis of a fluid sent to it by the defendant); Marsden v. Panshal......