Southern Railway Company v. Lanham, No. 25148.

• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)
• Writing for the Court: GEWIN and THORNBERRY, Circuit , and ELLIOTT
• Citation: 403 F.2d 119
• Parties: SOUTHERN RAILWAY COMPANY, Appellant, v. Carl Talmadge LANHAM et al., Appellees.
• Decision Date: 04 March 1969
• Docket Number: No. 25148.

403 F.2d 119 (1968)

SOUTHERN RAILWAY COMPANY, Appellant,
v.
Carl Talmadge LANHAM et al., Appellees.

No. 25148.

United States Court of Appeals Fifth Circuit.

October 30, 1968.

Rehearing Denied March 4, 1969.

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Burt DeRieux, Greene, Buckley, DeRieux, Moore & Jones, James A. Eichelberger, Atlanta, Ga., for appellant

Nolan B. Harmon, G. W. Thackston, Jr., Harmon & Thackston, Atlanta, Ga., for appellees.

Before GEWIN and THORNBERRY, Circuit Judges, and ELLIOTT, District Judge.

Rehearing En Banc Denied March 4, 1969.

THORNBERRY, Circuit Judge:

This appeal arises out of a contempt citation and $2,000 fine levied against Appellant Southern Railway Company for refusing to comply with the district court's order requiring it to produce certain documents under Rule 34 of the Federal

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Rules of Civil Procedure. Appellees, plaintiffs below, instituted this suit, alleging negligent homicide of three members of their family who were fatally injured when the car in which they were riding collided with one of Southern's trains on May 4, 1965. Southern's Claim Department conducted its own investigation of the accident through its claim agent, J. B. Woods. As a result of this investigation, statements were obtained from the train crew shortly after the accident, which were incorporated in a report by Mr. Woods on May 7, 1965. Appellees did not interview the crew

On October 3, 1966, appellees filed interrogatories seeking, among other things, information with respect to train schedules, names and addresses of witnesses, documents reflecting appellant's interoffice correspondence, photographs, facts about repairs to the crossing and the names and addresses of all persons filing claims as a result of any previous or subsequent accidents at the crossing in question. Pursuant to court order overruling its objections, appellant answered those interrogatories. Included in appellant's answers were the names and addresses of its train crew, the names and addresses of witnesses at the scene of the accident, the names of persons who had previously or subsequently filed claims against appellant as a result of collisions at the crossing in question, and the names, addresses and companies of authors of correspondence relating to the dangers at the crossing.

Appellees then filed a motion to produce all documents enumerated by the answers. The affidavits of counsel filed in support of the motion to produce recited that the documents sought were relevant to the action and were in the "possession, custody or control" of appellant; that appellees were financially unable to obtain the information contained in the statements, reports, and correspondence by depositions; and that the statements of the train crew taken shortly after the accident "will probably be more accurate" than later recollections. Appellant opposed the production of documents on the ground that appellees had failed to show "good cause" as required by Rule 34 of the Federal Rules of Civil Procedure. On the basis of appellant's possession and control of the files and letters, and, regarding the statements of the train crew, the likelihood that Southern's employees would be reluctant to answer appellees' questions and the unique value of statements taken shortly after the accident, the trial court found that the documents sought constituted evidence that would be "otherwise unavailable" unless production were ordered. The court concluded that appellees had therefore shown good cause and ordered appellant to produce the requested documents.

Southern, in a motion for reconsideration of the order to produce, reasserted its "good cause" objections and interposed two further objections, namely, that the accident reports compiled by its claim office contained the mental impressions and personal evaluations of its agents, and that the files containing records of other accidents included privileged communications with its counsel. On May 3, 1967 the court excepted from the production order those materials prepared by Southern's attorney for use in the litigation at hand, but reiterated the necessity to produce the materials compiled by J. B. Woods with regard to the accident in question and the materials dealing with other accidents.

Southern then filed with the court a notice of its refusal to produce the following documents:

(a) The statements of four members of the train crew taken by its claim agent shortly after the accident.

(b) Accident and status reports relating to this case prepared by its claim agent J. B. Woods and two other employees.

(c) Files containing the records and papers relating to other claims arising out of collisions at the same crossing.

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It made available to the court for in camera inspection those documents which it declined to make available to appellees. Appellees thereupon filed a motion to strike Southern's answer to the complaint. This motion was overruled. Instead the court found Southern to be in "civil contempt of this Court" and imposed an unconditional fine of $2,000.00, payable within ten days, for its refusal to comply with the order to produce. Southern filed this appeal to challenge the contempt citation, thereby seeking immediate review of the orders compelling production.

I. JURISDICTION

At the outset, we must decide whether this Court has jurisdiction of this appeal. Although the issue was not briefed by the parties or presented in the oral argument before this Court, there is a substantial question to be resolved regarding the appealability of the lower court's contempt order. It is well established that as to a party to a suit a civil contempt order is interlocutory and reviewable only upon appeal taken from a final judgment or decree. Fox v. Capital Co., 1936, 299 U.S. 105, 59 S.Ct. 57, 81 L.Ed. 67; Duell v. Duell, 1949, 85 U.S.App.D.C. 78, 178 F.2d 683, 14 A.L.R. 2d 560; 6 Moore's Federal Practice ¶ 54.17. Although an adjudication of civil contempt is final and appealable as to a non-party who would be unable to appeal from the final decision on the merits, see McCrone v. United States, 1939, 307 U.S. 61, 59 S.Ct. 685, 83 L.Ed. 1108; Bessette v. W. B. Conkey Co., 1904, 194 U.S. 324, 24 S.Ct. 665, 48 L.Ed. 997, a civil contempt order issued against a party lacks the requisite finality because its validity can be tested by an appeal from the final judgment. Fox v. Capital Co., supra; Developments in the Law — Discovery, 74 Harv.L.Rev. 940, 996 (1961). On the other hand, an adjudication of criminal contempt is a final judgment and the contemnor, whether a party or non-party, may obtain immediate review by appeal. Union Tool Co. v. Wilson, 1922, 259 U.S. 107, 42 S.Ct. 427, 66 L.Ed. 848; Duell v. Duell, supra.

The trial court recited in the contempt order that appellant was found to be in "civil contempt." Under that characterization of the order it necessarily follows in these circumstances that this Court is without jurisdiction and that the appeal must be dismissed. The lower court's characterization of the order, however, is not conclusive. Nye v. United States, 1941, 313 U.S. 33, 42, 61 S.Ct. 810, 85 L.Ed. 1172; Cyclopedia of Federal Procedure § 87.09 (3d ed. 1964). Although the entitling of the order or recitals contained in the order may be considered, see Fox v. Capital Co., supra, the appellate court on review must determine whether the contempt is civil or criminal in light of the nature and purpose of the punishment. Shillitani v. United States, 1966, 384 U.S. 364, 369, 86 S.Ct. 1531, 1535, 16 L.Ed.2d 622; see Stewart v. Dunn, 5th Cir. 1966, 363 F.2d 591, 600, n. 5. The substance of the contempt rather than its form is our guide. Accordingly, this Court must determine whether the contempt order here is civil or criminal.

The important tests in determining the character of a contempt are the nature and purpose of the punishment. Donato v. United States, 3d Cir. 1931, 48 F.2d 142, 143; 4 Barron, Federal Practice and Procedure § 2422 (1951); see Fox v. Capital Co., supra. Civil contempt is "wholly remedial" serves only the purpose of a party litigant, and is intended to coerce compliance with an order of the court or to compensate for losses or damages caused by noncompliance. McComb v. Jacksonville Paper Co., 1949, 336 U.S. 187, 191, 69 S.Ct. 497, 499, 93 L.Ed. 599; Penfield Co. of California v. S. E. C., 1947, 330 U.S. 585, 590, 67 S.Ct. 918, 921, 91 L.Ed. 1117; McCrone v. United States, supra; Scott v. Hunt Oil Co., 5th Cir. 1968, 398 F.2d 810 July 24, 1968; 6 Moore's Federal Practice ¶ 54.17. Criminal contempt, on the other hand, is punitive, rather than remedial, serves to vindicate the authority of the court, and cannot be

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ended by any act of the contemnor. Nye v. United States, 1941, 313 U.S. 33, 43, 61 S.Ct. 810, 813, 85 L.Ed. 1172; Fox v. Capital Co., infra; Gompers v. Bucks Stove & R. Co., supra; Barron, Federal Practice and Procedure § 2422, at 374-75. On the basis of these well-established principles, we conclude that the order before us is criminal. The order imposes an unconditional fine payable to the court for appellant's "wilful and wanton disregard for this Court's order of production." "It awards no relief to a private suitor." Nye v. United States, supra. It does not permit appellant to purge itself and remove the sanction by compliance with the court's discovery order. The contemnor does not "carry the keys of his prison in his own pocket," and therefore the fine "operates not as a remedy coercive in its nature, but solely as punishment for the completed act of disobedience." Gompers v. Bucks Stove & R. Co., supra, 221 U.S. 418 at 442, 31 S.Ct. 492 at 498, 55 L.Ed. 797 at 806

The absence of the Government as a party to this appeal does not deprive the citation for contempt of its criminal character. Appeal from an adjudication of criminal contempt is a recognized...