Owens-Illinois Glass Co. v. Bresnahan

• Decision Date: 29 April 1948
• Citation: 79 N.E.2d 195,322 Mass. 629
• Parties: OWENS-ILLINOIS GLASS CO. v. BRESNAHAN et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

322 Mass. 629

79 N.E.2d 195

OWENS-ILLINOIS GLASS CO.

v.BRESNAHAN et al.

Supreme Judicial Court of Massachusetts, Suffolk.

April 29, 1948.

Appeal from Superior Court, Suffolk County; Swift, Judge.

Bill in equity by Owens-Illinois Glass Company against Joseph Bresnahan and another to compel defendants, their agents and attorneys, to produce and make available for examination by plaintiff or plaintiff's expert witnesses, all fragments of glass claimed to be parts of bottle which exploded injuring named defendant. From interlocutory decree sustaining demurrer to the bill and from the final decree, the plaintiff appeals.

Decrees reversed.

Before QUA, C. J., and LUMMUS, RONAN, WILKINS, and WILLIAMS, JJ.

S. P. Sears and J. L. Lyman, both of Boston, for plaintiff.

W. A. Garrity, Jr., of Worcester, and C. W. Sloane, for defendants.

LUMMUS, Justice.

The defendants in this bill in equity have brought an action of tort for personal injury against the plaintiff. The declaration in that action alleges that the plaintiff manufactured a bottle which it sold to Royal Crown of Boston, Inc., as a container for a carbonated beverage; that the bottle was filled with that beverage, and was sold to a retail dealer; that the defendant Joseph Bresnahan had bought the filled bottle from the retail dealer or had contracted to buy it when the bottle exploded because of its dangerous and defective condition, and hurt said Joseph Bresnahan. His father Michael J. Bresnahan joined as plaintiff in one count of the declaration (Clouatre v. Lees, 321 Mass. 679, 75 N.E.2d 242), claiming consequential damages. The plaintiff answered in that action by a general denial and an allegation of contributory negligence on the part of Joseph Bresnahan.

The bill alleges that the defendants Bresnahan or their attorney are in possession of fragments of a bottle claimed to be the bottle, manufactured by the plaintiff, that exploded. It alleges that the attorney for the defendants, though requested, has refused to exhibit those fragments to the plaintiff or to make them available for examination by the plaintiff's experts. It alleges that such exhibition and examination are necessary to enable the plaintiff to prepare its defense. The bill prays that the defendants, their agents and attorneys, be ordered to produce, exhibit and make available for such examination all fragments of glass claimed to be parts of said bottle.

The demurrer of the defendants to the bill was sustained, and a final decree was entered dismissing the bill. The plaintiff appealed from the interlocutory decree sustaining the demurrer, and also from the final decree.

The bill falls within the class of bills for discovery only, where no relief is sought. Although discovery is usually sought of documents, courts of equity have long exercised jurisdiction to grant discovery of ordinary chattels, and even of real estate. This jurisdiction does not depend upon statute, but is a part of the general jurisdiction of a court of equity. Peck v. Ashley, 12 Metc. 478;Post & Co. v. Toledo, Cincinnati & St. Louis Railroad, 144 Mass. 341, 11 N.E. 540,59 Am.Rep. 86;American Security & Trust Co. v. Brooks, 225 Mass. 500, 501, 114 N.E. 732; Pomeroy, Equity Jurisprudence, 5th Ed., 1941, § 191. In Marsden v. Penshall, 1686, 1 Ver. 407, Marsden entrusted cloths to one Bumpas to sell. Instead of selling them, Bumpas pawned them with the defendant. Marsden brought a bill for the discovery of the cloths, to assist him in suing at law. Lord Chancellor Eldon gave them a decree for discovery. In Kynaston v. East India Co., 3 Swanst. 248, Lord Chancellor Eldon gave a decree commanding the defendant to permit the plaintiff's witnesses to examine real estate on the value of which was based the tithes claimed by the plaintiff. See also Wigmore, Evidence, 3d Ed., 1940, § 1862.

In Reynolds v. Burgess Sulphite Fibre Co., 1902, 71 N.H. 332, 51 A. 1075,57 L.R.A. 949, 93 Am.St.Rep. 535, the plaintiff had brought an action at law against the defendant for negligently causing the death of his intestate, by reason of a defective strap on the connecting rod of an engine. On a bill to obtain discovery of the broken pieces of the strap for the purpose of an examination of them by the plaintiff's attorneys and expert witnesses, the court held that the bill would lie. On Page 340 of 71 N.H., on page 1079 of 51 A. the court said, A consideration of “the origin of the equitable remedy for discovery, and of its nature and purpose, leads to the conclusion that it may be employed to compel the production of personal chattels, as well as books, deeds, letters, and other documents, for inspection and examination, in aid of an action at law.” On the same page the court said, “Neither does the right of discovery of books and documents depend upon the discretion of the court * * * nor upon the party's having some right or interest in them other than as items of testimony in his favor. * * * The slight infringement of the right of property that is involved in an inspection of it under an order of a court of equity is justified by ‘due process of law’ or ‘the law of the land,’ and is in no sense a violation of the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

We are of opinion that a court of general equity jurisdiction has authority to grant the discovery sought by the present bill. It remains to consider whether anything in our statutes prevents the Superior Court from exercising that jurisdiction.

By Pub.Sts. (1882) c. 151, § 2, cl. 14, the Supreme Judicial Court was authorized to hear and determine in equity “Suits or bills for discovery, when a discovery may be lawfully required according to the course of proceedings in equity.” Post & Co. v. Toledo, Cincinnati, & St. Louis Railroad, 144 Mass. 341, 11 N.E. 540,59 Am.Rep. 86. By St. 1883, c. 223, § 1, the Superior Court was given concurrent jurisdiction with the Supreme Judicial Court “in all matters in which relief or discovery in equity is...