State ex rel. Bush v. Elliott

• Decision Date: 14 January 1963
• Docket Number: No. 49453,49453
• Citation: 363 S.W.2d 631
• Parties: STATE of Missouri ex rel. Charles W. BUSH, Relator, v. Honorable R. Kenneth ELLIOTT, Judge of the Circuit Court, Division Two, Within and for the County of Clay, State of Missouri, Respondent, and Robert Gene Shipley, a Minor, By His Mother and Next Friend, Ella Mae Shipley, Parties to be adversely affected.
• Court: Missouri Supreme Court

Page 631

363 S.W.2d 631

STATE of Missouri ex rel. Charles W. BUSH, Relator, v. Honorable R. Kenneth ELLIOTT, Judge of the Circuit Court Division Two, Within and for the County of Clay State of Missouri, Respondent and Robert Gene Shipley, a Minor, By His Mother and Next Friend Ella Mae Shipley, Parties to be adversely affected.

No. 49453.

Supreme Court of Missouri, En Banc.

Jan. 14, 1963.

Sylvester Powell, Jr., Heilbron & Powell, Kansas City, for relator.

Thaine Q. Blumer, Blumer & Wright, Kansas City, for respondent.

STORCKMAN, Judge.

This is an original proceeding in prohibition. The relator who is the defendant in a personal injury action seeks to prohibit the respondent circuit judge from requiring him to answer an interrogatory propounded by the plaintiff which calls for the production of a copy of the defendant's motor vehicle liability insurance policy. The question presented involves a construction of Supreme Court Rules 56.01 and 57.01(b), V.A.M.R.

Robert Gene Shipley, a minor nine years of age, by his mother as next friend, filed suit for personal injuries alleged to have been received as a result of a collision between a bicycle he was riding and an automobile operated by the defendant Bush, the relator herein. The prayer of the petition is for actual damages in the sum of $50,000. The defendant's answer admitted the collision but denied all other allegations of the petition.

Thereafter the plaintiff filed interrogatories that he requested the defendant to answer, among which were these:

'11. For the purpose of voir dire inquiry of the jury, state if any person, firm, or corporation is financially interested in the cause of action herein because of any contracts or relationships either with you or by which you may benefit.

'12. If you answered the preceding interrogatory in the affirmative, state the name and address of said persons, firm, company or corporation.

'13. If you answered the interrogatory immediately preceding the last interrogatory in the affirmative, state whether said contract was written or verbal, and if written, attach copy thereof, and if verbal, state the general terms of said contract.'

The respondent circuit judge entered an order that unless prohibited he would require the defendant to answer these interrogatories. The defendant-relator admits that his answers to interrogatories 11 and 12 will disclose the name of his liability insurance carrier and concedes that under existing law the supplying of such information is proper for 'the purpose of voir dire inquiry of the jury.' He objects, however, to interrogatory 13 and contends that required compliance with such an interrogatory is not authorized by the Supreme Court Rules of Civil Procedure relating to pretrial discovery. The precise question involved is whether a defendant in a suit for actual damages for personal injuries based on negligence in the operation of a motor vehicle can be required to furnish the plaintiff with a copy of his policy of liability insurance which will disclose the limits and all other terms of his liability insurance coverage.

The Supreme Court Rules insofar as pertinent to this inquiry are:

Rule 56.01: 'Interrogatories may relate to any matters which can be inquired into under Rule 57, and the answers may be used to the same extent as provided in Rule 57 for the use of the deposition of a party.'

Rule 57.01(b): 'Unless otherwise ordered by the court as provided by this Rule, the deponent may be examined regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the examining party or to the claim or defense of any other party, including the existence, description, nature, custody, condition and location of any books, documents, or other tangible things and the identity and location of persons having knowledge of relevant facts. It is not ground for objection that the testimony will be inadmissible at the trial if the testimony sought appears reasonably calculated to lead to the discovery of admissible evidence.'

The portions of Rules 56.01 and 57.01(b) set out above are identical with Federal Rules of Civil Procedure 33 and 26(b), Title 28 U.S.C.A. As indicated by the Committee Note and Comment appended to Supreme Court Rule 57.01, the present rules broaden the scope of discovery to include not only admissible evidence but also matters reasonably calculated to lead to the discovery of admissible evidence.

In an original prohibition proceeding such as this, the question for the determination of this court is whether the document is relevant and material to the subject matter in the pending action or is reasonably calculated to lead to the discovery of admissible evidence, and the simple test is whether the document sought tends to prove an issue in the case. State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383, 383, 8 A.L.R.2d 1124; State ex rel. Boswell v. Curtis, Mo.App., 334 S.W.2d 757, 760[2-5]; State ex rel. Kroger Company v. Craig, Mo.App., 329 S.W.2d 804, 806[1, 2]; Central & Southern Truck Lines, Inc. v. Westfall GMC Truck, Mo.App., 317 S.W.2d 841, 847.

The elicitation of the name of the liability insurance carrier in a personal injury case and the interrogation of the veniremen concerning their interest or connection with the insurer are permitted if the inquiry is made in good faith for the purpose of determining the qualifications of the prospective jurors, but the use of this or other means to inject into the case for an improper purpose the fact that a litigant is covered by liability insurance constitutes reversible error. McCaffery v. St. Louis Public Service Co., 363 Mo. 545, 252 S.W.2d 361, 367[3, 4]; Carter v. Rock Island Bus Lines, 345 Mo. 1170, 139 S.W.2d 458, 461-462[1, 2]; Schroeder v. Rawlings, 344 Mo. 630, 127 S.W.2d 678, 691; Rytersky v. O'Brine, 335 Mo. 22, 70 S.W.2d 538, 539-540[4, 5]; Gooch v. Avsco, Incorporated, Mo., 340 S.W.2d 665, 667[1-4].

The respondent's first point is that the insurance policy itself is the best evidence of the financial interest of the insurer. The only information a party needs for examining the jury panel is the name of the insurance company. This information is usually ascertained by inquiring of defendant's counsel, or at a hearing before the court, or as in this case by interrogatories propounded to the defendant. Carter v. Rock Island Bus Lines, 345 Mo. 1170, 139 S.W.2d 458, 462; Glick v. Arink, Mo., 58 S.W.2d 714, 718[5, 6]. Since the name of the insurer is only collaterally and incidentally involved, the best evidence rule does not apply. In re Mingo Drainage District, 267 Mo. 268, 183 S.W. 611; Levelsmeier v. St. Louis & S. Ry. Co., 114 Mo.App. 412, 90 S.W. 104; Cable v. Johnson, Mo.App., 63 S.W.2d 433.

In the second paragraph of Rule 56.01(a) is this provision: 'Interrogatories may require as a part of or with the answers * * * copies of such documents, * * * not privileged, as are relevant to the answers required, * * *.' Since the relator concedes the propriety of his answering interrogatories 11 and 12, the respondent argues that 'relator must produce his policy of insurance because said policy of insurance is related to his previous answer that he does have such a contract.' This reasoning overlooks the fact that the name of the insurer was required for limited use on the voir dire examination and nothing more is required or proper for that purpose. The contents of the policy continue to be irrelevant and immaterial to any proper issue in the case.

The plaintiff's petition alleges that the defendant was operating an automobile and the defendant in his answer asserts that he was operating a pickup truck. On this ground the respondent urges that the existence of liability insurance is relevant because the form of policy required by statute will reveal the identity of the vehicle insured. In support of this contention the respondent cites Layton v. Cregan & Mallory Co., 263 Mich. 30, 248 N.W. 539, and Orgel v. McCurdy, D.C.N.Y., 8 F.R.D. 585. In the Layton case the defendant denied ownership of the motor vehicle involved and the agency of the driver. The court held that the policy and the reports of the accident would tend to throw some light on these issues and that the plaintiff was entitled to their production in order that she might 'prepare for the trial'. The question involved in the Orgel case is not as clearly spelled out, but it appears that the corporate defendant's office manager was ordered to testify at a pretrial examination 'on all issues relating to any liability insurance vehicle of defendant McCurdy'. Apparently vehicle of defendant McCurdy'9 Apparently agency was also an issue in the Orgel case. There are no issues of ownership or agency in this case. Whether the defendant was driving an automobile or a truck makes no difference so far as the degree of care is concerned. Each is a motor vehicle--the operation of which requires the exercise of the highest degree of care. Section 304.010, RSMo 1959, V.A.M.S.

Further in this connection the respondent asserts that Sec. 303.190, subd. 2(1), which is part of the Motor Vehicle Safety Responsibility Law, 'provides that the vehicle insured shall be described in said policy'. The exact language of this provision is that the owner's policy of liability insurance 'Shall designate by explicit description or by appropriate reference all motor vehicles with respect to which coverage is thereby to be granted'. Subd. 3 of this section provides that an operator's policy shall cover liability for damages arising out of the use of any motor vehicle not owned by him. The pleadings in this case present no issue of ownership of the motor vehicle involved or of the agency of its operator. The record does not demonstrate that the policy has any bearing on the kind of motor vehicle the defendant was actually operating at the time of the casualty.

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