McCoy v. District Court of Larimer County, 16874

• Decision Date: 23 June 1952
• Docket Number: No. 16874,16874
• Parties: . Supreme Court of Colorado, en Banc
• Court: Colorado Supreme Court

Page 619

246 P.2d 619

126 Colo. 32

McCOY v. DISTRICT COURT OF LARIMER COUNTY et al.

No. 16874.

Supreme Court of Colorado, en Banc.

June 23, 1952.

Wolvington & Wormwood, Denver, for plaintiff.

McComb & Zarlengo, Denver, for defendants.

MOORE, Justice.

This is an original proceeding in the nature of prohibition. It arises out of six separate actions brought against William A. McCoy in the district court of Larimer county. In said actions the several plaintiffs sought damages resulting from an automobile accident which occurred on April 19, 1951, in Larimer county, Colorado. Lynn M. Longley was the driver of one of the automobiles involved in the accident, and plaintiff in this cause, William A. McCoy, was driver of the other car. Five of the cases have been consolidated for trial. The suit filed by Mr. Longley, however, was not included in the consolidation and is set separately for trial.

A pre-trial conference was held at which the district court of Larimer county was advised that, sometime after the date of the accident, statements were taken from each of the plaintiffs who had filed said actions, by representatives of an insurance company which had issued a liability policy to McCoy. A demand was made by each of the plaintiffs in said actions that McCoy be required to furnish them with copies of the statements that each of them had theretofore made. McCoy, through his attorney, refused this demand and the court directed that a written motion for the production of said statements should be filed of record, and further ordered that briefs be filed by counsel in support of their respective positions.

The motion to produce statements was filed as directed, and is as follows:

'Comes now plaintiff, above named, by his attorneys, McComb and Zarlengo, and moves the Court for an order requiring the defendant to produce and to permit plaintiff to inspect and to copy the following documents: Statements made by the plaintiff to the investigator employed by the insurance company carrying the public liability insurance on the defendant's vehicle.

'As grounds for this motion, plaintiff states that defendant or his attorney has the possession, custody, or control of each of the foregoing statements or copies thereof, and that each of them constitutes or contains evidence relevant and material to this action, as is more fully shown in Exhibit A attached hereto.'

The court, in ruling upon said motion filed a 'memorandum' as follows:

'At pretrial conference in the above cases on April 7, 1952, counsel for plaintiffs requested defendant to produce and permit inspection and copy of statements made by the plaintiffs to a representative of defendant; and that request not having been complied with, notice was given that motion for that purpose would be filed, and to be submitted upon briefs. Such motion, supported by affidavit of one of the plaintiffs' counsel, was presented for filing April 17, 1952, accompanied by memorandum brief in support of the motion. Answering brief was filed by counsel for defendant April 24, 1952.

'The sustaining of the motion as made is not to be taken as a precedent or rule to be followed under Rule 34. On the contrary, it cannot be justified under the provisions of that Rule alone. When the request to produce was made at the Pretrial conference, I was under the impression, either by statements of plaintiffs' counsel or possibly by a supposition only on my part, that the statements were made and obtained shortly after the happening of the collision, and possibly while the plaintiffs were still suffering from shock or stress resulting from their injuries, and that there was fear that the statements taken under the circumstances might be inconsistent with their present contentions.

'Now the motion and affidavit in support thereof signally fails to make any such showing or any 'showing good cause.' A strict ruling under Rule 34 would require a denial of the motion for reasons that are fully stated in case cited by defendant, Hudalla v. Chicago M., St. P. & P. R. Co., D.C., 10 F.R.D. 363, 365.

'However, the motion made was and is in connection with pretrial conference, and one purpose of pretrial conference is to aid in the disposition of the action, which may well include, among other discovery mechanisms, disclosure so that 'civil trials need no longer be carried on in the dark by either party to them.'

'Thus, considering the motion in connection with and really as a part of pretrial conference, even in the absence of any sufficient showing, and in the interests of progress and prevention of possible surprise, the defendant is required to disclose the contents of the documents called for. The several plaintiffs, at the time their statements were made, could have properly requested and received copies thereof for their own record, and now that request having been made by their counsel, it is not unreasonable to require the defendant to comply with such request. There has been no suggestion that there is any substantial ground against making the disclosure.'

The court sustained the motion and ordered McCoy to 'furnish counsel for the several plaintiffs copies of the statements requested or produce such statements and permit counsel for plaintiffs to make such copies; all not later than ten days before the trial, * * *.' Thereupon these proceedings were instituted and the rule to show cause issued upon the complaint of McCoy.

Questions to be Determined

First: Under Rule 34, R.C.P.Colo., does the plaintiff in an action for damages for personal injuries have an unqualified right to examine a statement signed by him and delivered to the defendant...