State ex rel. Atchison, Topeka & Santa Fe Railway Company v. Trimble
| Decision Date | 10 February 1914 |
| Citation | 163 S.W. 860,254 Mo. 542 |
| Parties | THE STATE ex rel. ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. FRANCIS H. TRIMBLE, Judge, and CORA SELLS |
| Court | Missouri Supreme Court |
Writ allowed.
George J. Mersereau, Thomas R. Morrow, James P. Gilmore, John H Lathrop and Jones & Conkling for relator.
(1) The order made by respondent Judge Trimble, requiring the production of, and compelling relator to submit, the records and documents in said order mentioned to the said Cora Sells and her attorneys for inspection, and permitting copies to be made therefrom, was void. Said order was made without jurisdiction. The petition upon which it was made was fatally defective and insufficient to confer jurisdiction, for the following reasons: (a) Said petition did not state facts showing the materiality of the evidence sought. R. S. 1909 secs. 1944-1948; State ex inf. v. Tobacco Co., 177 Mo. 1; Glover v. Casualty Co., 130 Mo. 173; 14 Cyc. 346; 23 Am. & Eng. Ency. Law, 176; Thompson on Trials, secs. 743-757; Lester v. People, 41 Am. St. 375; Ex parte Clark, 46 L. R. A. 835; Beebe v. Equitable Mutual Ass'n, 76 Iowa 129; Loan & Trust Co. v. District Court, 149 Iowa 66; Dorris v. Coal Co., 215 Pa. 638; Iron & Coal Co. v. Iron Co., 104 Ga. 395; Jenkins v Bennett, 40 S.C. 393; U. S. v. Terminal R Ass'n, 154 F. 268. (b) The petition for the production of the books, papers and documents was not properly verified. R. S. 1909, sec. 1945; Thompson on Trials, sec. 756; 14 Cyc. 350; Fromme v. Lisner, 17 N.Y.S. 851; 22 Civil Procedure (N. Y.), 37; Railroad v. Railroad, 53 How. Pr. 45. (2) Under the allegations of the petition of respondent Cora Sells against relator, specifically alleging that Train No. 6 struck and killed her husband, the papers and documents relating to the operation and management of any other train or trains was incompetent and inadmissible; hence, the order, in so far as it called for the production of books, papers and documents relating to any other train than Train No. 6 called for the production of incompetent and immaterial evidence. Ex parte Brown, 72 Mo. 93; State ex inf. v. Oil Co., 194 Mo. 154. (3) The order requiring relator to produce its records and documents was a mere fishing excursion -- and unlawful invasion of relator's private rights, and if enforced would or might impart to and put respondent Cora Sells and her attorneys in possession of information which they had no right to possess and in which they have no concern or interest. R. S. 1909, secs. 1944-1948; Ex parte Brown, 72 Mo. 93; Lester v. People, 41 Am. St. 375; Dorris v. Coal Co., 215 Pa. St. 638; Ex parte Clark, 46 L. R. A. 835; Thompson on Trials, sec. 753; 23 Am. & Eng. Ency. Law, 179. (4) The order requiring the production and inspection of relator's private papers and documents and permitting Cora Sells and her attorneys to take copies thereof was an unlawful invasion of relator's private rights and violated the constitutional right of relator to be secure in its papers and effects against unreasonable searches and seizures. 4 Amendment Constitution United States; sec. 11, art. 2, Constitution Missouri; Ex parte Brown, 72 Mo. 93; State ex inf. v. Tobacco Co., 177 Mo. 1; Lester v. People, 41 Am. St. 375; Ex parte Clark, 46 L. R. A. 835; Jenkins v. Bennett, 40 S.C. 393; Cassett v. Coal & Coke Co., 10 L. R. A. (N. S.) 99; Hale v. Hinkle, 201 U.S. 43. (5) The provisions of article 12, chapter 21, R. S. 1909, do not authorize the production of the private books and papers of an adverse party and to which the party seeking the production is not a party and in which he has no interest. To thus construe the statute would destroy the right of security in private papers and effects; would destroy the constitutional inhibition against unreasonable searches and seizures, and bring the statute in direct conflict with the Fourth Amendment to the Constitution of the United States and section 11, article 2, Constitution of Missouri and thereby render the statute unconstitutional and void.
L. H. Woodyard and Busby Bros. & Withers for respondents.
(1) The Carroll Circuit Court had full jurisdiction over the damage suit, and full and complete power therein to decide every question attempted to be raised by relator herein; and relator had adequate remedies to correct any erroneous decisions therein; and prohibition cannot possibly be maintained in this case. a. If the special order made by Judge Trimble was in anywise illegal, or should not have been complied with, for any of the reasons set up by relator herein, then relator had the right and should have appeared before Judge Trimble on April 9, 1912, and set up such reasons as provided it might do by the special order and by the statute. If the order as to the train-sheets, etc., relating to trains other than train No. 6 was improper for any reason, then relator could have refused to permit an inspection or copy of the train records other than No. 6 and set up its reasons on April 9th. b. Or if such train-sheets, etc., relating to trains other than No. 6 were incompetent and inadmissible or should not have been produced for any of the reasons now set up by relator, relator could have objected to their admission in evidence and had any erroneous ruling of the court corrected by appeal or writ of error. Coleman v Dalton, 71 Mo.App. 14; State ex rel. v. Lucas, 236 Mo. 31; State ex rel. v. Stobie, 194 Mo. 14; State ex rel. v. Tracy, 237 Mo. 109; Delaney v. Police Court, 167 Mo. 679. (2) There is no merit in relator's contention that the petition for special orders did not sufficiently allege materiality of the evidence sought, or was not properly verified. If such were true, the same would be only errors in matters of practice which cannot be corrected by prohibition; and otherwise are mere quibbles. The entire petition in the damage suit was attached and referred to and made part of the petition for special orders, and when the allegations of the two petitions are considered together with the positive allegation in the petition for special orders that such train sheets, etc., "are material to the issues, and admissible in evidence," it was sufficiently alleged that the train sheets, etc., related to the merits of the damage suit as required by the statute. Sec. 1945, R. S. 1909; 17 Am. & Eng. Ency. Law (2 Ed.), 1064; 14 Cyc. 376, note. (3) The burden of proof was on Cora Sells to prove that Train No. 6 killed her husband by running on a dark night, without warning, about one hour late, at a rapid and dangerous rate of speed, without any headlight, so as to enable deceased to know of the approach of the train, etc.; and she was without direct evidence to make out her case, and had to depend upon circumstances. That is, the circumstances showed that deceased was struck and killed about 12 o'clock at night, and the train-sheet, etc., showed that Train No. 6 passed the place of collision at that time, without warning, at a rapid and dangerous rate of speed, and without any headlight lighted up and burning on the front of the engine; and the same trainsheet, etc., would have shown that no other train than No. 6 passed the point of collision at the time thereof, or from 7 o'clock in the evening until 7 o'clock in the morning without the headlight lighted up and burning, so that it was Train No. 6. and none other, that struck and killed Sells. Lead Co. v. Railroad, 123 Mo.App. 398; Railroad v. Stojanowski, 191 F. 720; Railroad v. Daniel, 3 L. R. A. (N. S.) 1190; Donovan v. Railroad, 158 Mass. 450; Ins. Co. v. Railroad, 138 N.C. 42. (4) The order does not require unreasonable search or seizure. State ex inf. v. Oil Co., 194 Mo. 126; State ex inf. v. Oil Co., 218 Mo. 1; St. Joseph v. Levin, 128 Mo. 588; Levy v. Superior Court, 29 L. R. A. 811. "This prohibition (in Federal Constitution against unreasonable searches, etc.), is intended to operate upon the national government alone, and not to limit the powers of the State governments in respect to their own people." 25 Ency. Pl. & Pr. (2 Ed.), 145; 35 Cyc. 1269. "The wider scope of the power of the State over corporations than over individuals affords a basis for a separate classification as to the production of books and papers." Packing Co. v. Arkansas, 212 U.S. 322. "It is within the power of a State to require a corporation doing business therein to produce before a court books and papers kept by it, although at the time the books, etc., may be out of the State." Consol. Rend. Co. v. Vermont, 207 U.S. 541; Hale v. Henkel, 201 U.S. 43. "Compelling common carriers to produce contracts entered into by competing companies and requiring testimony in regard thereto, does not violate the 4th and 5th amendments." Inter-St. Com. v. Baird, 194 U.S. 25.
OPINION
In Banc.
Prohibition.
This is an original proceeding instituted in this court by the relator to prohibit the respondents from compelling the former to produce for inspection, certain records, documents and papers in its possession, pertaining to its business, as evidence in a certain cause pending in the circuit court of Carroll county, wherein Cora Sells is the plaintiff and the relator is the defendant, for the purpose of recovering $ 10,000, damages sustained by her through the alleged negligence of the company in killing her husband, John Sells.
To the petition for the writ, the respondents filed a return admitting the allegations of the petition, and thereupon the relator moved for judgment on the pleadings.
The facts are substantially as follows:
At the time the petition for the writ of prohibition was filed in this court, a suit was pending in the circuit court of Carroll county, wherein the respondent, Cora Sells, was the...
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