State ex rel. Cain v. Barker

• Decision Date: 13 September 1976
• Docket Number: No. 59283,59283
• Citation: 540 S.W.2d 50
• Parties: STATE of Missouri ex rel. Ogden M. CAIN, Relator, v. The Honorable Charles V. BARKER, Judge of the Circit Court of Dallas County in the Thirtieth Judicial Circuit of Missouri, Respondent.
• Court: Missouri Supreme Court

Page 50

540 S.W.2d 50

STATE of Missouri ex rel. Ogden M. CAIN, Relator, v. The Honorable Charles V. BARKER, Judge of the Circit Court of Dallas County in the Thirtieth Judicial Circuit of Missouri, Respondent.

No. 59283.

Supreme Court of Missouri, En Banc.

Sept. 13, 1976.

Meredith B. Turner, Turner, Reid & Duncan, Springfield, for relator.

Thomas G. Strong and Mathew W. Placzek, Jr., Farrington, Curtis, Strong, Knauer & Hart, Springfield, for respondent.

FINCH, Judge.

This is an original proceeding in prohibition. Relator, defendant in a wrongful death action arising out of a highway accident, seeks to prevent respondent judge from enforcing therein an order wherein he directed relator to produce for inspection and copying by plaintiff the written statements given by relator to an adjuster for his insurance carrier. We issued our provisional rule in prohibition on November 10, 1975. We now make that rule permanent, prohibition being an appropriate remedy to prevent enforcement of discovery requiring production of privileged documents. State ex rel. Terminal Ry. Ass'n of St. Louis v. Flynn, 363 Mo. 1065, 257 S.W.2d 69 (banc 1953).

On November 17, 1974, while relator was driving a truck in Dallas County, Missouri, he struck a camper driven by Frank S. Miller, resulting in the death of Miller. His widow thereafter brought suit for damages. At the time of the accident, relator was an employee of the House of Webster, Inc. and was driving on their behalf a tractor-trailer rented from Ryder Truck Rental, Inc. Insurance policies in force at the time provided liability insurance coverage to House of Webster, Inc. and to relator, the driver. In addition, one of the policies was endorsed to provide coverage to Ryder Truck Rental, Inc.

On November 18, 1974, the day after the accident, and again on November 20, 1974, James Owens, an insurance adjuster for Crawford & Company, talked to relator at length about the accident and took written statements with reference thereto. It is the production of these statements which the respondent has ordered.

On November 26, 1974, a representative of decedent Miller's insurance company contacted relator and attempted to obtain a statement concerning the accident but Cain refused to discuss the occurrence or to give a statement to said adjuster.

The following spring (May 27, 1975), attorneys for plaintiff in the wrongful death action took Cain's deposition. Thereafter, on July 10, 1975, they filed a motion which sought on the basis of rule 56.01(b)(3) to have the circuit court require Cain to produce and permit plaintiff to inspect and copy the statements given by him to James Owens on November 18 and 20, 1974. As grounds for such discovery, plaintiff's motion alleged that Cain in his deposition had been unable to provide answers to numerous questions propounded to him, that Cain's memory of the accident at the time he gave the statements to James Owens was better than when his deposition was taken, and that plaintiff had substantial need for said information and was unable to obtain the substantial equivalent by other means.

In support of that application, plaintiff's attorney, Thomas Strong, filed an affidavit which stated as follows: that Cain gave two statements to his insurance carrier soon after the accident in question; that he refused to talk to anybody else about the facts until his deposition was taken; that Cain's account of the accident varied considerably from that of other witnesses whose depositions had been taken; that Cain, when his deposition was taken, did not remember several crucial facts; and that, based on the foregoing, counsel believed that the statements given immediately after the accident might be useful in refreshing Cain's memory and might contain damaging admissions which could be presented by plaintiff to the jury as such.

In response, Meredith Turner filed an affidavit wherein he stated as follows: that he and his law firm were then representing Cain and had represented him prior to November 26, 1974; that Cain had been instructed by his firm not to discuss facts of the accident with anyone other than the members of the law firm or persons assisting it in investigation of the accident; that the conferences between relator and James Owens referred to by counsel for the plaintiff (those of November 18 and November 20, 1974) occurred after Cain had been advised not to talk to anyone other than members of the Turner firm or persons assisting it; and that at the time of said conferences James Owens was assisting the Turner firm in the investigation of the subject accident. The affidavit also asserted that the production of the statements given by relator to James Owens would violate the confidential relationship of attorney and client between the Turner firm and Cain.

On September 18, 1975, respondent judge sustained plaintiff's motion and ordered Cain to produce for inspection and copying the statements given by him to James Owens. Thereupon, relator filed a motion for a protective order, alleging, inter alia, 'that the statements of Ogden Cain as to which discovery is now sought by plaintiff were obtained by James Owens at the direction and under the supervision of the undersigned attorneys who were then representing Ogden Cain, and were taken in anticipation of litigation and to prepare for trial' and 'that the said statements comprise privileged material constituting communication between attorney and client, and, further, constitute work product'. The motion went on to state that since these statements were privileged they were not discoverable under the provisions of rule 56.01. Thereafter, the trial court indicated that he would overrule the motion for protective order but he had not actually done so at the time relator filed his petition for writ of prohibition herein.

The language of rule 56.01(b)(1) authorizes discovery of matters not privileged. This necessarily means that privileged matters, such as communications between attorney and client, are not discoverable unless the privilege is waived by the client. Hence, the first question to be determined is whether the communications of November 18 and 20, 1974, by relator Cain to James Owens come within the attorneyclient privilege. If they do, they are not discoverable and the protective order should be entered, unless the privilege has been waived.

In order to determine the question of whether the communications by Cain to James Owens were privileged, we look to the record before us in this proceeding which under rule 84.24 consists of 'the petition for the writ, together with suggestions in support thereof, any exhibits accompanying said petition, the writ and return of service thereon, together with the return the respondent made to the writ, and all other papers, documents, orders and records filed in the appellate court'. The trial court heard no oral testimony on the motion to produce or on the motion for the protective order, but did have before it affidavits of Thomas Strong and Meredith B. Turner which had been filed in connection with the motion to produce. The affidavit of Thomas Strong does not purport to recite facts with respect to the relationship between Cain and James Owens or between Cain and the Turner firm other than to recite that Cain gave the two statements to his insurance carrier. The affidavit of Meredith B. Turner does address the question of these relationships. It stated first that Turner and his law firm were at the time of the affidavit representing Cain and had represented him prior to November 26, 1974. In paragraphs 2 and 3 of his affidavit Turner recites that Cain had been instructed not to discuss the facts of the accident with anyone other than members of the Turner firm or persons assisting it in the investigation and that the conferences between Cain and Owens in which Cain gave the two statements were held after Cain had been so advised. In addition, Turner went on to say that 'at the time of that conference, Mr. James Owens was assisting the law firm of Turner, Reid & Duncan in the investigation of the subject accident'.

It is true, as respondent points out, that the Turner affidavit does not at any time recite a specific date on which the Turner firm was employed and began its representation of Cain in this matter. So far as dates are concerned, it simply says that Turner and his firm were representing Cain before November 26, 1974. Even so, it is arguable, as claimed by relator, that the Turner affidavit alleges enough to permit a determination therefrom that Owens was working under the direction of the Turner firm when he took the statements from Cain on November 18 and 20, 1974; also that an attorney-client relationship between Cain and the Turner firm existed from and after that time. If it did, then the statements made by Cain to James Owens on November 18 and 20, 1974, were statements to an authorized agent or representative of the Turner firm in the investigation of this matter and were privileged. ¹

We have concluded that in deciding whether the statements of Cain to James Owens are privileged it is unnecessary for us to resolve from the language of the Turner affidavit or by means of a subsequent hearing thereon whether an actual attorney-client relationship existed between the Turner firm and Cain prior to the conferences of November 18 and 20, 1974. We reach this conclusion on the basis that it is clear that an insurer-insured relationship existed between the insurance company and Cain at the time of the statements and, for reasons subsequently enumerated, we conclude that by reason of such relationship, the statements given by Cain to his insurer fall within the protection of the attorneyclient privilege.

Missouri courts have not ruled on this question of whether communications by an insured to his insurer are privileged. The question was raised in Hutchinson v. Steinke, 353 S.W.2d 137 (Mo.App.1962), but it was not...