Reynolds v. Burgess Sulphite Fibre Co.

• Decision Date: 01 April 1902
• Citation: 71 N.H. 332,51 A. 1075
• Parties: REYNOLDS v. BURGESS SULPHITE FIBRE CO.
• Court: New Hampshire Supreme Court

51 A. 1075

71 N.H. 332

REYNOLDS

v. BURGESS SULPHITE FIBRE CO.

Supreme Court of New Hampshire. Coos.

April 1, 1902.

Exceptions from Coos county; before Justice Pike.

Action by Elizabeth Reynolds, administratrix, against the Burgess Sulphite Fibre Company. A demurrer to a prayer for discovery of certain pieces of machinery, and for an inspection of them by plaintiff's attorneys, was sustained, and plaintiff brings exceptions. Exceptions sustained.

Bill in equity. The bill alleges that the plaintiff has commenced an action at law against the defendants to recover damages for negligently causing the death of the plaintiff's intestate by furnishing him for use in his employment improper, unsuitable, and dangerous machinery; that on April 9, 1899, while the intestate was in the employ of the defendants, he was killed by falling against the governor of an engine; that the engine gave indications, by an unusual noise, that it was in a defective condition, and shortly afterward the strap on its connecting rod broke, and caused the connecting rod to break through the outer casing with a loud crash, and thereby caused the intestate's fatal fall; that the broken pieces of the strap are in the defendants' possession; that, to properly prepare the plaintiff's action at law for trial, it is necessary that these pieces should be examined by the plaintiff's attorneys, and also by competent persons, with a view of testifying; and that the defendants, though requested, have refused to permit such examination. The prayer is for a discovery of the pieces of the broken strap, and for an inspection of the same by the plaintiff's attorneys and such other persons as she may desire. The defendants filed a demurrer, which was sustained pro forma, subject to the plaintiff's exception.

Crawford D. Hening, for plaintiff.

Chamberlin & Rich and Orville D. Baker, for defendant.

CHASE, J. Whatever may have been the fact prior to 1842 (Laws 1832, c. 89, § 9; Dover v. Portsmouth Bridge, 17 N. H. 200), there can be no doubt that ever since that date courts of this state have possessed full equity powers in respect to discovery. Rev. St. c. 171, § 6; Gen. St. c 190, § 1; Gen Laws, c. 209, § 1; Pub. St c. 205, § 1. In the grant of equity powers by the last-named statute, which is now in force, discovery is specially mentioned. The jurisdiction of the court over the subject generally is not questioned, but it is said that this case does not fall within the jurisdiction. In considering the reasons that have been offered in support of this position, it is necessary to have in mind the origin, purpose, and general nature of this remedy. "The common law laid down as a maxim, 'Nemo tenetur armare adversarium suum contra se,' and in furtherance of this principle it generally allowed litigant parties to conceal from each other, up to the time of trial, the evidence on which they meant to rely, and would not compel either of them to supply the other with any evidence, parol or otherwise, to assist him in the conduct of his cause." Rest Ev. § 264; 1 Greenl. Ev. § 329. A different rule grew up in equity. The defendant there was obliged to answer under oath the allegations of the bill, and might be compelled to produce for inspection by the plaintiff documents that were in the defendant's possession and control, and were material to the issues involved in the suit. In such cases the discovery was incident to the equitable relief sought. But it was not limited to the issues arising in suits in equity. "Many cases existed in which the plaintiff had a legal title, or a legal right or was pursuing a legal remedy, but wherein no redress could be actually obtained, simply because the plaintiff's evidence either rested in the breast of the defendant, or consisted, in whole or in part of documents in the defendant's possession. Hence there was failure of justice at common law, and hence there arose the equitable remedy of bills for discovery, which was made use of simply for the purpose of assisting or supplementing the plaintiff's remedy at common law." Bisp. Eq. § 556; 2 Story Eq. Jur. §§ 1484, 1485; 1 Pom. Eq. Jur. §§ 191, 195. The law excepted from the testimony which a party might be compelled to furnish against himself in this way testimony tending to convict him of a violation of the criminal law, or to subject him to a penalty or forfeiture; also communications between him and his attorney relating to the matters in suit, and, if a public officer, testimony a publication of which would be prejudicial to the community. With these exceptions, a party could be compelled "to discover and set forth upon oath every fact and circumstance within his knowledge, information, or belief," and to produce and allow his adversary to inspect and copy every document in the party's possession material to the other's case. Adams, Eq. c. 1.

The defendants say that this case is not within this equitable jurisdiction, because the discovery and inspection sought is of articles of personal property belonging to them, in which the plaintiff has no right of property or possession. The gist of the action at law, in aid of which this suit was brought, is the negligence of the defendants in furnishing the plaintiff's intestate, an employé of theirs, with improper, unsuitable, and dangerous machinery for use in his employment. It is a necessary inference from the allegations of the bill that the "improper, unsuitable, and dangerous" element in the machinery existed in the strap on the connecting rod of the engine. This broke, and, it is alleged, caused the intestate's death. The alleged unsuitableness of the strap may be due to inadequacy of size, error in form, imperfection in construction, or inferiority of materials from which it was made. An inspection of the fragments will evidently aid in determining whether there was either of these defects in it, and, if so, which one. As matters of proof, the fragments would at least be ancillary to other testimony on the point. 3 Greenl. Ev. §§ 328, 329; Best, Ev. § 200. They may be the most reliable and weighty testimony, one way or the other. The bill alleges that the plaintiff cannot properly prepare her action at law for trial without an inspection and examination of them. By reason of the demurrer, this allegation must be taken as true. Unless the equitable remedy of discovery has been superseded by the provision of some plain, adequate, and complete remedy at law, or is not applicable to a case of tort like that alleged in the plaintiff's action at law,—points that are hereinafter considered,—it is certain that the defendants, through their officers and agents, might be compelled in a suit like the present one to discover the form in which the strap was constructed, the character of the workmanship by which and the materials from which it was made; in short all the facts within their knowledge, information, or belief tending to show that it was defective. If they had in their possession a plan of the strap or of the broken pieces, they might be compelled to produce it for examination by the plaintiff. Why, then, may they not be compelled to produce the broken pieces themselves? Two reasons are suggested: One-positive, and, if well founded, substantial— that the defendants' right to possess and control the property, growing out of their ownership of it, cannot be infringed in this way; and the other—negative, and not applying to the merits of the question—that there is no precedent for a discovery and inspection of such property. It must be admitted that the defendants' right of property in the broken strap will be interfered with to some extent if they are required to produce it, and allow the plaintiff and others to examine it But such interference will not differ in kind or degree from that which occurs when a party is required to produce his letters, deeds, plans, other documents, or books for inspection. The rights of the defendants arising from the ownership of the strap are no more sacred than would be their rights arising from the ownership of a plan of the strap, if they had one. The infringement of property rights in such cases is justified upon the ground that it is necessary to the administration of justice. Such necessity is alleged by the plaintiff and admitted by the defendants. It is apparent that an examination of the strap will afford a better means of ascertaining the truth in respect to its suitableness or unsuitableness for the office it was to perform than any possible description or plan of it could afford, and the necessity for an inspection of it is correspondingly greater than the necessity for an oral description or a plan.

The following cases illustrate the application that has been made of the doctrine of discovery in aid of actions at law in respect to documents and books: Anon., 2 Ves. Sr. 620; Moodalay v. Morton, 1 Brown, Ch. 469; Burrell v. Nicholson, 1 Mylne & K. 680; Storey v. Lennox, 1 Mylne & C. 525; Smith v. Beaufort, 1 Hare, 507: Chadwick v. Bowman, 16 Q. B. Div 561; Peck v. Ashley (Mass.) 12 Metc. 478. The documents, a discovery of which was sought in these cases, were not muniments of title, or documents containing evidence bearing upon an accounting between the parties, but were letters, books, and papers supposed to contain evidence in support of the plaintiff's case in actions at law. Indeed, no cases have been found in which it is held that the right to discovery in respect to documents depends upon the fact that the documents are muniments of title to property in dispute in the action at law, or that they are relevant to an accounting between the parties sought in such action. The right to the discovery of documents, etc., is as extensive as the right to discovery by oral testimony, and depends upon the same principles. Marsden v. Panshall. 1 Vern. 407, decided in 1686, is an authority that discovery may be had of personal property other than documents, etc. The plaintiff in the...