Putney v. Du Bois Co.
| Decision Date | 10 January 1950 |
| Docket Number | No. 6812,6812 |
| Citation | 226 S.W.2d 737,17 A.L.R.2d 375,240 Mo.App. 1075 |
| Parties | , 17 A.L.R.2d 375 PUTNEY v. DU BOIS CO. |
| Court | Missouri Court of Appeals |
Allen & Woolsey, Springfield, Clarence O. Woolsey, Springfield, Gatch, Kleinmann, Roberts & Kuhn, Cincinnati, Ohio, Frank A. Roberts, Cincinnati, Ohio, for appellant.
Miller & Fairman, Springfield, Wm. P. Sanford, Springfield, M. J. McQueen, Springfield, for respondent.
This is an appeal from a default judgment. On the 5th day of December, 1944, plaintiff filed a petition in the circuit court of Greene County, Missouri, in the first count alleging that about November 1, 1942, she was employed by Heer's, Inc., in their department store at Springfield, Missouri. She worked at a lunch counter, and part of her duties was to wash dishes and glasses. That Heer's, Inc., purchased a washing compound known as 'Dishwashing Compound No. 2' from the defendant, and that defendant knew or should have known that said compound would be used by the employees of Heer's Inc., for dishwashing purposes. That the plaintiff, as one of such employees, did so use said compound for about three weeks after November 1, 1942 and that said powder injured her hands until she was no longer able to work. That the powder was not such as was represented and warranted by the defendant. Plaintiff prayed judgment for the sum of $3,000.
In Count 2, plaintiff alleged that her injury was caused by the negligence of the defendant and that, '* * * the said Defendant, on and prior to the first day of November, 1942, carelessly and negligently caused and permitted said compound to be manufactured so that it contained certain injurious elements, the exact nature of which are unknown to Plaintiff, so that when such compound was sold by Defendant to Heer's Inc., as aforesaid, and used by Plaintiff in the normal and usual way that such washing compound would be used, Plaintiff was injured as hereinafter set out.'
She asked for $3,000 damages on Count 2.
Defendant filed an answer specifically denying all the allegations of the petition except to admit its incorporation and that it was engaged in the manufacture of soaps and washing compound, including a washing compound known as 'Dish Washing Compound No. 2'.
On the 30th day of March, 1948, plaintiff filed certain interrogatories, the principal one in controversy here being:
Objection was made to the interrogatories and was overruled as to the one above set forth. An answer to the interrogatories was then filed which listed nine classes of detergents as printed in Public Health Reports, Vol. 59, No. 34 of August 25, 1944, pages 1103-1117, which was also issued by the U. S. Public Health Service as Reprint No. 2574, but it does not state whether all or only part of those listed were used, except it did exclude sodium hydroxide (lye) neither did defendant state the porportions of the ingredients used in the preparation of the compound except it stated that it also used less than 1/25 of 1% of a common flouresceine type soap dye.
On the 3d day of May, 1948, plaintiff filed a motion to compel further answers to the above quoted interrogatory, which motion was sustained. The defendant then filed a motion praying the court to reconsider its order, which motion was as follows:
'As grounds for this Motion the defendant respectfully draws the Court's attention of the fact that the deposition of the plaintiff in this case has been taken and is on file in the office of the Circuit Clerk of Greene County, and that the evidence of the plaintiff so given does not show that the product above mentioned, manufactured by this defendant, was used by the plaintiff or that the injury she complained of resulted from the use of said compound.
'Defendant further states that the compliance with the order of May 29th requires this defendant to divulge a highly valuable trade secret with resultant irreparable damage to this defendant.
'Wherefore, defendant prays the Court to re-consider its order and to either withdraw same or to postpone or suspend the enforcement of such order until the plaintiff has made a prima facie case as to the use by the plaintiff of the defendant's compound as set out in her petition.'
This motion to reconsider was overruled on the 12th day of June, 1948, and the defendant was given additional time to answer the interrogatories.
On the 3d day of July, 1948, defendant filed an affidavit of its Secretary and Treasurer, which contained the following language:
'Affiant states that the defendant, at the present time and for several years last past, has been engaged in the manufacture and sale of a product known as Dishwashing Compound No. 2; that the formula of ingredients and proportions used in the manufacture of said compound now and in the past has been preserved and kept secret in order to avoid its exploitation by competitors of the defendant.
'The said Dishwashing Compound No. 2 has been widely sold throughout the United States of America and said product has not proved injurious to any person or persons who have used it throughout the years.
'Said Dishwashing Compound No. 2 is not injurious to the skin.
'The evidence contained in a deposition of the plaintiff, taken by the defendant and now filed in this cause establishes without question that whatever affliction, if any was suffered by the plaintiff, did not result directly or indirectly from her use of the defendant's product.
'Affiant understands that the court in this cause has ordered the defendant specifically to answer the question above enumerated. Affiant states that a compliance with such order will cause unnecessary and irreparable injury to this defendant, in that the latter will be required to divulge a highly valuable trade secret the property of the defendant, in an action in which said defendant's product was not used by the plaintiff.
'Wherefore, affiant prays the court to reconsider the former order and grant one or two of the following alternatives:
'1. Withdraw the order requiring a more specific answer to the above question, than has heretofore been given.
This affidavit was stricken from the files as showing a wilful disregard of the court's order. Plaintiff then filed a motion for a default judgment pursuant to Section 847.89, (b)(3), Pocket Part, Missouri Revised Statutes Annotated (Laws of Missouri, 1943, page 381, Section 89(b)(3)) that section provides (among other things) that if a party to a cause refuses to answer interrogatories the court may 'enter a default judgment against that party.' When this hearing was had, the following transpired:
'Mr. Woolsey: The defendant requests that the record show that on the 19th day of June, when both parties were present before the Court, the defendant further requested that it be allowed to divulge the formula in question to the Court personally, to be held by the Court in confidence until such time as the plaintiff had made a prima facie case against the defendant, at which time, if a prima facie case was made, the formula was to be disclosed to the plaintiff and her attorneys, and that said request was overruled by the Court.
'The Court: Said offer was made in open Court with the attorneys for both sides present, and the offer was rejected by the Court at the suggestion of the plaintiff's attorney.
'Mr. Woolsey: The defendant further requests the Court to make the deposition--the deposition of the plaintiff now on file with the official records of the Court in regard to this case with the Circuit Clerk of Greene County, Missouri--for the reason that the plaintiff's deposition does not make a prima facie case against the defendant, it is requested that this deposition be allowed and made a part of the record at this time, in order to show that the defendant's request for a reconsideration of the original order concerning the interrogatories answered was made in good faith and is based on sworn testimony of the plaintiff, under oath, taken with opportunity for cross examination by her counsel.
'Mr. Sanford: We object to that being introduced into evidence for the reason that no evidence of any sort has been offered in this case, except that pertaining to the jurisdiction of the parties; that trial has not been had, but this is a judgment on the pleading; that defendant, in its own answers to the interrogatories that it did answer, admitted sale of this merchandise to the company for which the plaintiff was working, sale having been made approximately about the time that the matters occurred that are alleged in plaintiff's petition.'
Answers to other interrogatories admitted defendant had made the following shipments of the washing compound to Heer's Inc. (plaintiff's employer),
'February, 1941, 5 cases, 325 pounds.
'September, 1941, 4 cases, 260 pounds.
'November, 1941, 8 cases, 560 pounds. * * *
'Mr. Woolsey: Are you through?
'Mr. Sanford: Yes, sir.
'Mr. Woolsey: With the Court's permission, I would like to further add that this request that the deposition be made a part of the record results from the indication on the part of the Court that the motion for default judgment will be sustained, and that in order for an appellate court to have all relevant and material facts upon this question, which appears to be one of first impression in Missouri; that the deposition should be on hand for the appellate court's perusal in connection with the question of whether or not the prima facie case is made, and whether or not a defendant should be required, under the law, to divulge a...
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