Proctor & Gamble Mfg. Co. v. Superior Court of State, In and For Marin County
| Decision Date | 25 March 1954 |
| Citation | 268 P.2d 199,124 Cal.App.2d 157 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PROCTOR & GAMBLE MFG. CO. et al. v. SUPERIOR COURT OF STATE, IN AND FOR MARIN COUNTY. Civ. 16149. |
Boyd, Taylor & Reynolds, San Francisco, for petitioners.
Bagshaw, Schaal & Martinelli, San Rafael, for respondent.
Petitioners, Proctor & Gamble Manufacturing Company seek an alternative writ of prohibition directed to the Superior Court of Marin County restraining respondent from enforcing an order compelling defendants to furnish certain information from their records, and commanding respondent court to vacate and set aside said order or show cause before this court as to why it has not done so. A peremptory writ following a return and hearing is also requested.
On February 3, 1953, plaintiffs Loretta T. and Robert L. Jones, husband and wife, filed a complaint in the Superior Court in and for Marin County against petitioners herein seeking $60,000 damages for injuries alleged to have been sustained by use of petitioner's product 'Cheer', the cause of action being based upon breach of warranty. The answer of petitioners denied the material allegations of the complaint and alleged contributory negligence of Loretta Jones, and that such contributory negligence was imputed to her husband, and further alleged that the alleged injury, if any, was due solely 'to plaintiff's physical and bodily condition and constitutional composition' on the date of alleged injury. The injury alleged from the use of 'Cheer' was a severe dermatitis and dermatosis, causing nervousness and illness and inability to perform her household duties for a six month period, as well as permanent disfigurement of her hands which prior to that time were 'beautiful and smooth.'
On September 28, 1953, plaintiffs served and filed notice of motion to compel defendants to furnish all the following information within their knowledge: the names and addresses of all persons making complaint to defendants or either of them, whether at their main office or offices or any of their branch offices, claiming to have been injured or damaged by the use of the detergent known as 'Tide' and/or the detergent known as 'Cheer', products sold by defendants. The motion was based on the records in the case and on affidavit. The ground of the motion was the defendants had pleaded as a special defense the doctrine of 'uniqueness', claiming plaintiffs' injuries were the proximate result of her own physical condition.
The affidavit of A. E. Bagshaw, an attorney for plaintiffs, avers on information and belief that the detergents 'Tide' and 'Cheer' are similar in chemical composition. He avers further on information and belief that defendants have in their custody and control numerous complaints of users of the products 'Tide' and 'Cheer', that said users were injured and suffered detergent burns from the use of said detergents, that it is material in the interests of justice that defendants furnish plaintiff with the names of all persons injured or damaged by 'Tide' or 'Cheer'.
The Respondent Court on December 3, 1953, ordered petitioners to furnish plaintiffs with the names and addresses of all persons claiming or alleging to have been injured or damaged and/or to have suffered personal injuries, including 'detergent burns' or 'contact dermatitis' as a result of having come in contact with 'Tide' or 'Cheer'. It ordered also a list of all cases for damages involving these products. The order covered a period from April 15, 1951 to November 30, 1953.
On December 31, 1953, petitioners filed notice of motion to vacate the order on the ground that the court was without jurisdiction to make it; that the affidavit in support of the motion was insufficient, and that the order was in violation of Section 19, Art. 1, California Constitution. At the time of the hearing a supplemental affidavit of A. E. Bagshaw was served and filed. This affidavit affirmed all the allegations of the prior affidavit, and alleged further on information and belief that both detergents 'Cheer' and 'Tide' have as their principal ingredients the chemical 'Sodium Alkyl Aryl Sulfonate', and that the formula of each product differs only in minor details. It was further averred that in an action pending in the State of Washington, defendant corporation filed an affidavit pursuant to court order listing the names and addresses of approximately 117 persons who had submitted unfavorable comments regarding the alleged effect of 'Tide' upon the skin. The affidavit then sets forth a partial list of these names and addresses. It is alleged that in pleading uniqueness of plaintiffs' injury defendants have inferentially alleged that plaintiff is the only person who was ever injured by said defendant's product 'Cheer', and that it is evident that if defendants received 117 complaints regarding 'Tide', it is self evident that they must have received numerous complaints concerning 'Cheer', that such evidence is material to the issues of whether 'Cheer' is (1) dangerous to the health of the general public; (2) dangerous to the health of plaintiff; (3) whether defendants knew prior to the sale of 'Cheer' to plaintiff that others had received 'detergent burns' or suffered dermatitis from use of the product.
The motion to vacate the order compelling petitioners to furnish the information requested was granted insofar as the product 'Tide' was concerned, but denied insofar as the order pertained to 'Cheer'.
In order that a subpoena duces tecum should issue, the documents or papers demanded should be sufficiently described. Section 1985, Code of Civ.Proc., requires that such an affidavit shall specify the exact matters or things desired. Union Trust Co. v. Superior Court, 11 Cal.2d 449, 458, 81 P.2d 150, 118 A.L.R. 259. In the present case there is no doubt as to that specific information defendants are asking for if such information exists. The affidavit must also set forth the materiality of the contents of the documents to the issues involved in the case. In McClatchy Newspapers v. Superior Court, 26 Cal.2d 386, 396, 159 P.2d 944, 950, it was declared that the affidavit ...
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