Martin v. Capital Transit Co., 9505.

• Decision Date: 18 May 1948
• Docket Number: No. 9505.,9505.
• Citation: 170 F.2d 811,83 US App. DC 239
• Parties: MARTIN v. CAPITAL TRANSIT CO.
• Court: U.S. Court of Appeals — District of Columbia Circuit

83 US App. DC 239, 170 F.2d 811 (1948)

MARTIN v. CAPITAL TRANSIT CO.

No. 9505.

United States Court of Appeals District of Columbia.

Argued January 26, 1948.

Decided May 18, 1948.

Mr. David G. Bress, with whom Mr. Alvin L. Newmyer was on the brief, for appellant.

Mr. Frank F. Roberson, with whom Mr. George D. Horning, Jr., who entered an appearance, was on the brief, for appellee.

Before STEPHENS, CLARK and WILBUR K. MILLER, Associate Justices.

STEPHENS, Associate Justice.

This is a special appeal from an order of the District Court of the United States for the District of Columbia denying a motion under Rule 34, Federal Rules of Civil Procedure, 28 U.S.C.A., for the production of a written report. Rule 34 as phrased at the time of the order provided, so far as here pertinent:

Upon motion of any party showing good cause therefor and upon notice to all other parties, 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 material to any matter involved in the action and which are in his possession, custody, or control . . . . Italics supplied The question presented on the appeal is whether or not under the rule the motion as made should have been granted.

The pertinent facts are: The appellant Walter T. Martin brought suit against the Capital Transit Company, appellee, to recover damages alleged to have been caused through the negligent operation by the appellee's motorman, one Earl M. Davis, of a street car. The appellant charged that Davis opened the front door of the car while it was in motion, thereby striking and injuring him. The appellee denied negligence, denied that the appellant was struck as alleged, and pleaded contributory negligence on the appellant's part.

The motion for production of the written report was in the following terms:

Comes now the plaintiff, Walter T. Martin, by his attorneys, and moves this Honorable Court for an order requiring the defendant, Capital Transit Company, to produce for inspection and copying by the plaintiff of the written report of an accident made in the line of his duties by Earl Maxwell Davis of 1217 Pleasant Street, S. E., Washington, D. C., an employee of the defendant, concerning the accident of May 12, 1945 which is the subject matter of the above entitled action and in which plaintiff was injured. Said report was made immediately after said accident and within the regular course of defendant's business, and as cause therefor plaintiff says as follows:

In a deposition taken of said Mr. Davis on April 11, 1946, he testified that he made a written report to the Capital Transit Company immediately following the accident, pursuant to its standing rule that accident reports be filed by its employees; that at said deposition demand was made on behalf of the plaintiff for production of said report, but the same was not produced; and that plaintiff gave notice to the defendant at that time that appropriate steps by motion would be taken to require its production.

It was apparently claimed before the District Court, and it was urged in the briefs on this appeal, that the report was privileged, but this claim was abandoned by the appellee in the oral argument and we accordingly give it no consideration.

The position of the appellant appears to be that upon filing this motion he was entitled as a matter of right to an order for the production of the report. But we think that for lack of a showing of good cause for the production of the Davis report the order of the District Court denying the motion was proper. Rule 34 authorizes the District Court to order production of documents, papers, etc., upon motion of a party "showing good cause," not upon a mere allegation or recitation that good cause exists. The rule contemplates an exercise of judgment by the court, not a mere automatic granting of a motion. The court's judgment is to be moved by a demonstration by the moving party of its need, for the purposes of the trial, of the document or paper sought. This view is confirmed by the Supreme Court in Hickman v. Taylor, 1947, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451. In that case a tug sank while engaged in helping to tow a car float of the Baltimore & Ohio Railroad across the Delaware River at Philadelphia. Five members of the crew were drowned. Hickman, administrator of the estate of one of them, filed suit in a District Court of the United States in Pennsylvania under the Jones Act, 46 U.S.C.A. § 688, naming as defendants the Railroad and the owners of the tug. After the accident a public hearing was held before the United States Steamboat Inspector at which four survivors were examined and their testimony recorded and made available to all interested parties. The tug owners and underwriters had employed a law firm, of which one Fortenbaugh was a member, to defend against potential suits by representatives of deceased crew members. Shortly after the hearing Fortenbaugh privately interviewed the survivors and took signed statements from them. He also interviewed other persons believed to have information concerning the accident and in some instances made memoranda of what they had told him. After Hickman had commenced his suit, he filed under Rule 26, Federal Rules of Civil Procedure, thirty-nine interrogatories directed to the defendant tug owners. The thirty-eighth read as follows:

. . . "State whether any statements of the members of the crews of the Tugs `J. M. Taylor' and `Philadelphia' or of any other vessel were taken in connection with the towing of the car float and the sinking of the Tug `John M. Taylor.' Attach hereto exact copies of all such statements if in writing, and if oral, set forth in detail the exact provisions of any such oral statement or reports." 329 U.S. at pages 498, 499, 67 S.Ct. at page 387

...