State ex rel. Allen v. Second Judicial Dist. Court, Washoe County

• Decision Date: 26 June 1952
• Docket Number: No. 3702,3702
• Citation: 245 P.2d 999,69 Nev. 196
• Parties: . Supreme Court of Nevada
• Court: Nevada Supreme Court

Page 999

245 P.2d 999

69 Nev. 196

STATE ex rel. ALLEN v. SECOND JUDICIAL DISTRICT COURT, WASHOE COUNTY, et al.

No. 3702.

Supreme Court of Nevada.

June 26, 1952.

Royal A. Stewart, Reno, for relator.

Bert Goldwater, Reno, for respondents.

EATHER, Justice.

Petitioner seeks a writ of mandamus to compel the respondent court to perpetuate the testimony of an insurance company officer or agent and two persons alleged to be insured.

Petitioner applied to the court below to obtain an order for examination of witnesses and for subpoena duces tecum for Stanley Hyman, agent for Farmers Insurance Exchange and Truck Insurance Exchange, Adolph Stank and Edwin A. Stank. She alleged that she expected to be a party to an action in which she expected the insurance companies and the named individuals would be adverse parties. The action was expected for the reason that petitioner, as plaintiff, had commenced suit against Adolph Stank and Edwin A. Stank for damages on account of personal injuries received in an automobile accident in which accident Edwin A. Stank was driving an automobile registered in the name of Adolph Stank and covered by a policy or policies with the named insurance companies. Petitioner further alleged to the court below: 'That as soon as your petitioner recovers a judgment against Edwin A. Stank and Adolph Stank in said pending action, your petitioner intends to bring suit on said policies of insurance against the Truck Insurance Exchange and the Farmers Insurance Exchange and each of them; Edwin A. Stank and Adolph Stank will be joined as parties defendant in said suit.' Petitioner further alleged that the proposed parties had knowledge, information and documents which would be necessary and material evidence in the expected action and that she intended to prove by testimony sought to be adduced that Edwin A. Stank and Adolph Stank are in fact insured.

The District Judge then presiding ^* ordered the examination and directed the clerk to issue the subpoenas prayed for and the same were issued and served upon Stanley Hyman, Adolph Stank and Edwin A. Stank. These last named persons moved to quash the subpoenas duces tecum upon the grounds, among others, that petitioner sought evidence, otherwise inadmissible, bearing upon the pending action and that the expected action was too remote to justify a need for perpetuating testimony. The lower court granted the motion and quashed the subpoenas.

The real issue before this court is now: Does a party injured in an automobile accident have the right to obtain information regarding the policy of insurance of the person allegedly causing the injuries, by a proceeding to perpetuate testimony in which the injured person alleges that he expects to be a party to an action against the insured and insurer as soon as he recovers a judgment against the insured in a personal injury action then pending?

This case is one of first impression in this court, and must be determined in accordance with our conception of the meaning of our applicable statutes with due regard to the decisions of other courts construing similar provisions. The statutes to which we are about to refer are found unchanged in Nevada Compiled Laws of 1929, Revised Laws of Nevada 1912, Cutting's Compiled Laws of Nevada 1900, General Statutes of Nevada 1885, and Compiled Laws of Nevada 1873. Despite such antiquity no case has ever reached this court indicating an attempt of an expectant plaintiff to take the deposition of an insurance company officer or agent as expectant defendant for use in a contemplated action against such company after the expectant plaintiff shall have obtained an expected judgment againt the insurance company's insured.

The proceedings in the lower court were brought pursuant to Sections 9011-9014, N.C.L.1929. The pertinent sections with which we are concerned provide:

' § 9011. The testimony of a witness may be taken and perpetuated as provided in this chapter.

' § 9012. The applicant shall present to a district judge a petition verified by the oath of the applicant, stating:

'1. That the applicant expects to be a party to an action in a court of this state, and, in such case, the name or names of the person or persons whom he expects will be adverse parties; or,

'2. That the proof of some fact or facts is necessary to perfect the title to property in which he is interested, or to establish marriage, descent, heirship, or any other matter which it may hereafter become material to establish, though no suit may at the time be anticipated, or, if anticipated, he may not know the parties to such suit; and,

'3. The name of the witness to be examined and his place of residence, and a general outline of the facts expected to be proved.

' § 9013. The judge to whom such petition is presented shall make an order allowing the examination before any judge of a court of record, and prescribing the notice to be given, which notice, if the parties are known and reside in this state, shall be personally served on them, and if unknown, or nonresidents, such notice shall be served on the clerk of the county where the property to be affected by such testimony is situated, and a copy thereof published in some newspaper, to be designated by the judge making the order.

' § 9014. Upon proof of the service of the notice as provided in the last section, it shall be the duty of the judge before whom the testimony is ordered to be taken to proceed to take the testimony of the witnesses named in said petition, upon the facts therein set forth, and the taking of the same may be continued from time to time, in the discretion of the judge.

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' § 9017. If the trial be had between the persons named in the petition as parties expectant, or their successors in interest, or between any parties wherein it may be material to establish the facts which such testimony proves or tends to prove, upon proof of the death or insanity of the witness, or of his inability to attend the trial by reason of age, sickness, or settled infirmity, the testimony, or certified copies thereof, may be used by either party, subject to all legal objections. But if the parties attend at the examination, no objection to the form of an interrogatory shall be made at the trial unless the same was stated at the examination.'

Perpetuation of testimony, traditionally and historically, is a branch of the auxiliary jurisdiction of the equity courts, provided to overcome defects in the common law procedure and accomplished by the bringing of separate suits in equity in aid of the principal common law action. The first auxiliary branch was that of the suit for discovery against the adverse common law party. The second was that of taking of testimony of witnesses in advance of trial, divided into suits for the taking of testimony de bene esse, in aid of a pending action, and suits to perpetuate testimony, in aid of a contemplated action. See: 1 Pomeroy's Equity Jurisprudence, 279, §§ 190, 190a. Thus historically a distinction was recognized between a bill of discovery against the adverse party and a suit to take testimony of a witness not a party to the action.

The auxiliary jurisdiction of the equity courts has uniformly been made the subject of statute in the several states and in most instances the proceedings and requirements have been simplified. However, the use of the language (as in our statute) 'The testimony of a witness may be taken', has led some courts in the light of historical background, to hold that the examination of parties (being the subject of discovery) is not permitted under a perpetuation of testimony statute. Winter v. Elmore, 88 Ala. 555, 7 So. 250. Certainly it may well be argued that the legislature had in mind the perpetuation of testimony and not discovery.

It is, however, more generally held that the broad scope of statutes such as ours does contemplate discovery as well as perpetuation of testimony and does thereby...