Schulgasser v. Young

• Citation: 206 N.Y.S.2d 81,25 Misc.2d 788
• Parties: Joseph SCHULGASSER, Plaintiff-Respondent, v. Mack J. YOUNG, Defendant-Appellant.
• Decision Date: 07 October 1960
• Court: United States State Supreme Court (New York)

Page 81

206 N.Y.S.2d 81

25 Misc.2d 788

Joseph SCHULGASSER, Plaintiff-Respondent, v. Mack J. YOUNG, Defendant-Appellant.

Supreme Court, Erie County.

Oct. 7, 1960.

Gibbons, Pottle, O'Shea & Adamson, Buffalo, for defendant-appellant.

A. E. Schulgasser, Buffalo, for plaintiff-respondent.

MICHAEL CATALANO, Justice.

This is an appeal from an order of the City Court of Buffalo, granted by Hon. Ann T. Mikoll, Associate Judge, on September 23, 1960, directing '* * * that the Allstate Insurance Company produce on the trial date at 9:30 o'clock in the morning, in part 10 of the City Court of Buffalo, all statements made by defendant to said company. The trial court shall thereupon pass on the admissibility and competency of the statement after examining into the preliminary questions which must, of necessity, first be answered.'

This order was granted upon a motion by defendant to quash a subpoena duces tecum, dated May 27, 1960, and served upon Allstate Insurance Company May 28, 1960, directing the production at the trial '* * * all statements in your possession, custody or control made by Mack J. Young and relating to an automoble accident in which said Mack J. Young was involved on August 14, 1959.' The history of the litigation starts with the service of a summons, dated August 26, 1959, upon defendant on September 4, 1959. By notice of retainer dated September 9, 1959, one Frank N. Cuomo, Esq., appeared as attorney for defendant. On September 10, 1959, plaintiff verified his complaint alleging a negligence automobile accident between the parties on August 14, 1959 resulting in damage to plaintiff's automobile. By answer verified September 21, 1959, defendant denied the allegations of negligence, through said Cuomo, his attorney. An affidavit sworn to on March 16, 1960, by an associate of said Cuomo, one Edward H. Coughlin, Esq., stated that defendant was under the care of Dr. Antonio Bellanca, a physician, and defendant's appearance in court would endanger his health. On May 16, 1960, defendant was served with a subpoena to appear at the trial. On June 1, 1960, said Dr. Bellanca swore to an affidavit stating that defendant's health would be impaired by his appearance in court at that time. An affidavit of said Coughlin dated May 27, 1960, stated that he was a member of the law firm of '* * * Fortunato, Diakun & Coughlin, attorneys for the defendant, Mack J. Young.' On June 27, 1960, a stipulation to restore this case to the head of the trial calendar was signed by 'Fortunato, Diakun & Coughlin by Edward H. Coughlin, Attorneys for defendant.' On August 19, 1960, by stipulation defendant's present attorneys Gibbons, Pottle, O'Shea & Adamson, Esqs., were substituted as his attorneys.

By oral stipulation in open court, the present attorneys of the parties stated that the defendant's statement in question was given to a representative of the Allstate Insurance Company within a few days of the accident, sometime in August, 1959.

The question poised is: May a written statement made by an insured defendant to his automobile liability insurance carrier shortly after a negligently-caused automobile accident prior to the retention of legal counsel be subpoenaed by the plaintiff after this statement is in the possession of defendant's attorneys of record for possible use at the trial as an admission against defendant and as an aid in the cross-examination of defendant?

The only confidential and privileged communications protected by statute in New York are those made to: 'A clergyman, or other minister of any religion * * *' (Civil Practice Act, § 351); 'A person duly authorized to practice physic or surgery, or dentistry, or a registered professional or licensed practical nurse * * *' (Ibid., § 352); 'An attorney or counsellor at law * * *' (Ibid., § 353); 'A husband or wife * * *' (Ibid., § 349).

The 1957 report of the Temporary Commission of the Courts (Leg. Doc.1957, No. 6(b); see also, Senate Bill, Jan. 6, 1960, No. 27, Int. 27) proposes, inter alia 'Rules--Title 34. Disclosure.

'A. General Provisions.

'34.1 Scope of disclosure.

'(a) Full disclosure required. Except as otherwise specifically provided in these rules, there shall be full disclosure before trial of all relevant evidence and all information reasonably calculated to lead to relevant evidence.

'(b) Privileged matter. Privileged matter shall not be obtainable.

'(c) Attorney's work product; material prepared for litigation. The following shall not be obtainable unless the court finds that withholding it will result in injustice or undue hardship:

'1. the work product of an attorney; and

'2. any opinion of an expert prepared for litigation and any writing or thing created by or for a party or his agent in preparation for litigation.' (Emphasis supplied.)

At page 120 of the Tentative Draft of said 1957 report appears this note:

'The advisory committee rejected as impractical the possibility of distinguishing between attorneys regularly retained as investigators of accidents by public utilities and insurance companies and those assigned to particular matters after litigation has begun or been threatened. Presumably, even the lawyer hired for routine investigations will shape his inquiry and report by what he considers to be relevant in view of some legal theory. For similar reasons, reports prepared by a layman primarily for use by attorneys in litigation are exempt. Whether an internal business report of an accident, for example, is designed for use in litigation or for use by management in disciplining employees, avoiding future accidents, or making required governmental reports may be a close question best left to the courts.' (Emphasis supplied.)

This report and these notes are not yet law, but they are the result of exhaustive, scholarly research and discussion among many distinguished legal experts, worthy of profound consideration by the court.

In addition to these statutory privileges, there is a common law privilege pertaining to state secrets and communications made to certain public officials in the performance of their duties. See Richardson on Evidence, 8th Ed., sec. 468.

Otherwise, no mere pledge of secrecy may suppress the truth in a court of justice. Wigmore on Evidence, 3d Ed., sec. 2286.

Evidence consists of facts admitted at a trial to establish or disprove the truth of allegations put in issue by the pleadings; (See: Dibble v. Dimick, 143 N.Y. 549, 554, 38 N.E. 724, 726) whereas rules of evidence determine what facts are admissible or not. Not all rules of evidence are statutory; many are based upon the principle of stare decisis, the precedent set in former adjudications.

Thus, this question is to be considered as one of first instance, since it does not fall squarely into any statute or precedent in this state.

In America today, the legal problems incident to motor vehicle accidents upon public highways are growing and changing with 65 million multi-ton vehicles racing daily over 2 1/2 million miles of speedways used by 175 million people. The increasing need for each privately owned motor vehicle to be covered with liability insurance before it may be registered has spread to 48 of our 50 states. See: New York's Motor Vehicle Accident Indemnification Corp. etc., by Peter Ward, Professor of Law, Cornell University Law School, in Vol. 8, No. 2, Buffalo Law Review, 215 (1959).

At the time of the accident in 1959, it was necessary that defendant be covered with a 'motor vehicle liability policy' in form approved by the Superintendent of Insurance before his motor vehicle could be registered with the Commission of Motor Vehicles. See: former Article 6-A, Motor Vehicle Safety Responsibility Act, in Vehicle and Traffic Law, sections 94-l to 94-q, L.1941, c. 872, as amended and Article 6-A, Motor Vehicle Financial Security Act, Ibid., sections 93 to 93-k, L.1951, c. 655, then repealed as of October 1, 1960 by L.1959, c. 775, but continued in Article 6, Motor Vehicle Financial Security Act, Ibid., sections 310 to 321, and Article 7, Motor Vehicle Safety Responsibility Act, Ibid., sections 341 to 345, L.1959, c. 775, effective October 1, 1960.

This court may presume that defendant's automobile liability insurance policy issued to him by Allstate Insurance Company contained the usual 'co-operation clause' found in millions of other policies issued throughout the United States by Allstate and other insurance companies. See: American Surety Co. of N. Y. v. Diamond, 1 N.Y.2d...