McDuffey v. Boston & M.R.R.

Decision Date30 June 1959
Citation152 A.2d 606,102 N.H. 179,74 A.L.R.2d 872
Parties, 74 A.L.R.2d 872 Paul McDUFFEY v. BOSTON & MAINE RAILROAD. Meyer GREEN, Adm'r v. BOSTON & MAINE RAILROAD. Timothy McDUFFEY, by his father and next friend, v. BOSTON & MAINE RAILROAD. Kathleen McDUFFEY, by her father and next friend, v. BOSTON & MAINE RAILROAD.
CourtNew Hampshire Supreme Court

McLane, Carleton, Graf, Greene & Brown, Manchester (Stanley M. Brown, Manchester, orally), for the plaintiffs McDuffey.

Green, Green, Romprey & Sullivan, Manchester, for Meyer Green, Adm'r of estate Irene F. McDuffey.

Eugene J. Ratto, Boston, Mass., Burns, Bryant & Hinchey, Dover, and Lawrence E. Spellman, Manchester (Lawrence E. Spellman, Manchester, orally), for the defendant.

KENISON, Chief Justice.

This litigation arises out of a collision at Littlefield's Crossing in the town of Newfields between an automobile operated by one of the plaintiffs and the defendant's train. Prior to trial the plaintiffs have sought and the Court has ordered discovery of 'all written reports of accidents and near collisions at Littlefield's Crossing between highway users and the defendant's trains, in the possession of the defendant.' The defendant contends that the order for discovery in this case is an unwarranted fishing expedition which should not be permitted under the doctrine of discovery as announced in recent cases. It contends that the present discovery order is a harassment and an impertinent intrusion into the defendant's files and is therefore not a proper object of discovery. The defendant finally urges the Court to review its recent decisions on discovery for the purpose of limiting their breadth and scope. Therrien v. Public Service Company, 99 N.H. 197, 108 A.2d 48; Reynolds v. Boston & Maine Transportation Co., 98 N.H. 251, 98 A.2d 157, 37 A.L.R.2d 1149; Lincoln v. Langley, 99 N.H. 158, 106 A.2d 383. Counsel perform a useful function to the Bar and to the public in so doing as this at least serves to prevent the court from unwittingly extending a legal doctrine beyond proper bounds.

Discovery in civil actions has been regarded in this jurisdiction as a proper procedural aid for the parties to prepare their case in advance of trial and has been given a broad and liberal interpretation. Drake v. Bowles, 97 N.H. 471, 92 A.2d 161; Town of New Castle v. Rand, 101 N.H. 201, 136 A.2d 914. In encouraging use of discovery and depositions (Krook v. Blomberg, 95 N.H. 170, 59 A.2d 482), it has been pointed out that it operates with desirable flexibility under the discretionary control of the Presiding Justice of the Trial Court (Drake v. Bowles, supra) and that this is a logical method of preventing surprise and permitting both court and counsel to have an intelligent grasp of the issues to be litigated and knowledge of the facts underlying them. Taylor v. Thomas, 77 N.H. 410, 411, 92 A. 710; LaCoss v. Town of Lebanon, 78 N.H. 413, 101 A. 364; Krook v. Blomberg, supra, 95 N.H. 171, 59 A.2d 483. See Millar, Civil Procedure of the Trial Court in Historical Perspective, c. xiv (1952).

It should be noted that the use of discovery in this jurisdiction is not a recent development. The doctrine was launched after extended historical analysis in the landmark case of Reynolds v. Burgess Sulphite Fibre Co., 71 N.H. 332, 51 A. 1075, 57 L.R.A. 949, which Wigmore quotes at length and regards as a sound opinion. VI Wig.Ev. (3d ed.) § 1862. Subsequent cases have considered the doctrine but have not deemed it advisable to place any crippling limitations on the use of discovery. LaCoss v. Town of Lebanon, 78 N.H. 413, 101 A. 364; Lefebvre v. Somersworth Shoe Co., 93 N.H. 364, 41 A.2d 924; State v. Cote, 95 N.H. 108, 58 A.2d 749; VI Wig.Ev. (3d ed.) § 1859b.

While the use of discovery in this state has been regarded as a remedial device which has been given a liberal application, we have attempted to indicate that it is subject to limitations. Staargaard v. Public Service Company, 96 N.H. 17, 69 A.2d 4; Villars v. City of Portsmouth, 100 N.H. 453, 455, 129 A.2d 914. Thus in the Staargaard case the plaintiff sought to produce on deposition accident reports relating to all prior bus accidents. This was held to be too broad because [96 N.H. 17, 69 A.2d 5] 'the requested records would include many relating to accidents the circumstances of which could have no possible 'legitimate bearing' on this issue.' In Currier v. Allied New Hampshire Gas Company, 101 N.H. 205, 137 A.2d 405, we held that in actions for damages where loss of earnings was in issue, there could be discovery of federal income tax returns but the Trial Court could impose stringent requirements on the production of such returns to prevent harassment or impertinent intrusion.

All of the cases cited above 'have proceeded on the basic assumption that the orderly...

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18 cases
  • Riddle Spring Realty Co. v. State
    • United States
    • New Hampshire Supreme Court
    • June 30, 1966 the regular course of the laying out of highways, would not come within the attorney-client privilege. McDuffey v. Boston & Maine R.R., 102 N.H. 179, 152 A.2d 606, 75 A.L.R.2d 872; Brink v. Multnomah County, 224 Or. 507, 517, 356 P.2d 536; McCormick, Evidence, s. 93, p. 188. Nor would th......
  • In re N.H. Sec'y of State
    • United States
    • New Hampshire Supreme Court
    • January 24, 2019
    ...2018 amendment of RSA 654:45, VI addresses the issue of discovery, a quintessentially procedural matter. See McDuffey v. Boston & Maine R. R., 102 N.H. 179, 181, 152 A.2d 606 (1959) (noting that civil discovery is a procedural aid for the parties in litigation); see also Jacob v. Chaplin, 6......
  • Klatz v. Armor Elevator Co., Inc.
    • United States
    • New York Supreme Court — Appellate Division
    • May 23, 1983
    ...Erie & Western, R.R., Co., 118 NY 399, 405 ; Henwood v Chaney, 156 F.2d 392, 397 [8th Cir.1946] )." The case of McDuffy v. Boston and Maine Railroad, 102 N.H. 179, 152 A.2d 606 goes even further than Eisenbraum (supra ). In McDuffy, the plaintiff was injured when the car in which he was rid......
  • Jarvis v. Prudential Ins. Co. of America
    • United States
    • New Hampshire Supreme Court
    • July 14, 1982
    ...the parties to prepare a case in advance of trial and must be given a broad and liberal interpretation, McDuffey v. Boston & Maine RR., 102 N.H. 179, 181, 152 A.2d 606, 608 (1959), it is subject to limitations, mainly for the protection of the parties against harassment. Riddle Spring Realt......
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