State ex rel. Cummings v. Witthaus

• Decision Date: 30 March 1949
• Docket Number: 41271
• Parties: State of Missouri, at the Relation of Charles Henry Cummings and Standard Generator Service Warehouse, Inc., a Corporation, Relators, v. The Honorable John A. Witthaus, Judge of the Circuit Court of the Thirteenth Judicial Circuit of Missouri, Respondent
• Court: Missouri Supreme Court

219 S.W.2d 383

358 Mo. 1088

State of Missouri, at the Relation of Charles Henry Cummings and Standard Generator Service Warehouse, Inc., a Corporation, Relators, v. The Honorable John A. Witthaus, Judge of the Circuit Court of the Thirteenth Judicial Circuit of Missouri, Respondent

No. 41271

Supreme Court of Missouri

March 30, 1949

Original Proceeding in Prohibition.

PROVISIONAL RULE DISCHARGED IN PART AND MADE ABSOLUTE IN PART.

Provisional rule discharged in part and made absolute in part.

Leahy & Leahy, Joseph L. Badaracco and Roberts P Elam for relators; E. Chas. Eichenbaum of counsel.

(1) Under Section 86 of the Civil Code of Missouri, a trial court can compel the production of only those tangibles which are material to some issue in a pending cause. Sec. 86, Civil Code of Missouri; Art 1, Sec. 15, Mo. Constitution of 1945; State ex rel. Thompson v. Harris, 166 A.L.R. 1425 195 S.W.2d 645; Crooks v. Crooks, 197 S.W.2d 678; State ex rel. Kansas City Pub. Serv. Co. v. Cowan, 203 S.W.2d 411; State ex rel. Atchison, T. & S.F.R. Co. v. Trimble, 254 Mo. 542, 163 S.W. 860; Rule 34, Federal Rules of Civil Procedure; State ex rel. Williams v. Buzard, 354 Mo. 719, 190 S.W.2d 907; State ex rel. Chicago, R.I. & P. Ry. Co. v. Woods, 316 Mo. 1032, 292 S.W. 1033; State ex rel. Page v. Terte, 324 Mo. 925, 25 S.W.2d 459; State ex rel. Smith v. Williams, 310 Mo. 367, 275 S.W. 534. (2) The books, records, statements of account, insurance policies, and written agreements which relators were ordered to produce are not material to any issue in the cause pending before respondent. More particularly said tangibles are not material to proving agency as respondent by his order has ordained, and the burden of proving their materiality is on said respondent and the plaintiff in the cause pending before him. State ex rel. St. Louis Union Trust Co. v. Sartorious, 351 Mo. 111, 171 S.W.2d 569; State ex rel. Missouri Pacific R. Co. v. Hall, 325 Mo. 102, 27 S.W.2d 1027; 2 Am. Jur., secs. 359, 360; 494 Commerce Clearing House, secs. 1746, 1748A, 1748D; Sec. 1621, Internal Revenue Code; 26 United States Code Annotated, Sec. 1426; United States of America v. Silk, 331 U.S. 704, 91 L.Ed. 1757; Walling v. Portland Terminal Co., 330 U.S. 148, 91 L.Ed. 809; Riggs v. Higgins, 341 Mo. 1, 106 S.W.2d 1; Vert v. Metropolitan Life Ins. Co., 342 Mo. 629, 117 S.W.2d 252; Pesot v. Yanda, 344 Mo. 338, 126 S.W.2d 240; Reiling v. Missouri Ins. Co., 236 Mo.App. 164, 153 S.W.2d 79; Authorities cited under Point (1), supra. (3) Those books, records, statements of account, insurance policies, and written agreements which might conceivably be material or contain material evidence, if any there be, have not been designated as intended by Section 86 of the Civil Code of Missouri. Authorities cited under Point (1), supra; Webster's New International Dictionary, Unabridged, 1946; Engl v. Aetna Life Ins. Co., 139 F.2d 469; Hickman v. Taylor, 153 F.2d 212.

Roy W. McGhee and Limbaugh & Limbaugh for respondent.

(1) The proceeding before respondent culminating in the order entered is authorized by the New Civil Code of Missouri. Sec. 86, New Civil Code of Missouri; Laws 1943, p. 379; Sec. 847.86, Mo. R.S.A. 1939. (2) This provision of the New Civil Code is a part of the mechanics devised to aid in the process of discovery which supersedes the former similar statutory methods of discovery which have been repealed. Secs. 1075-1080, R.S. 1939, Laws 1943, p. 356; Secs. 84-89, New Civil Code of Missouri; Laws 1943, pp. 379-382; Secs. 847.84-847.89, Mo. R.S.A. 1939. (3) The existing Missouri statutory provision under which the challenged order of respondent was entered is a counterpart of a Federal Rule of Civil Procedure. Rule 34, Federal Rules of Civil Procedure, 28 U.S.C.A. 723c, p. 604. State ex rel. Chapman v. Shain, 147 S.W.2d 457; Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Maher v. Donk Bros. Coal & Coke Co., 20 S.W.2d 888; Fuqua v. Lumbermen's Supply Co., 76 S.W.2d 715; Renfro v. Central Coal & Coke Co., 19 S.W.2d 766; Burgess v. Garvin, 272 S.W. 108; Vaughn v. William F. Davis & Sons, 221 S.W. 782; Restatement, Agency, secs. 14, 220. (4) This statutory provision represents a universal trend in the law to broaden the scope of discovery. State ex rel. Thompson v. Harris, 355 Mo. 176, 195 S.W.2d 645; State ex rel. Iron Fireman Corp. v. Ward, 351 Mo. 761, 173 S.W.2d 920; State ex rel. St. Louis Union Trust Co. v. Sartorius, 351 Mo. 111, 171 S.W.2d 569; State ex rel. Missouri Broadcasting v. O'Malley, 344 Mo. 639, 127 S.W.2d 684; State ex rel. Chicago, R.I. & P. Railroad Co. v. Woods, 316 Mo. 1032, 292 S.W. 1033; Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385. (5) The statutory provisions authorizing discovery should be liberally construed. State ex rel. Iron Fireman Corp. v. Ward, 351 Mo. 761, 173 S.W.2d 920. (6) In determining whether or not the individual relator was the agent of or on business for the corporate relator at the time of the fatal injury, the primary test is the right of control, and evidence bearing on that issue is material and should be made available to the plaintiff in the action in the circuit court. Foster v. Campbell, 196 S.W.2d 147; Mattan v. Hoover Co., 350 Mo. 506, 166 S.W.2d 557. (7) Income tax and Social Security withholding records are relevant and material to plaintiff's case as factors showing agency. State ex rel. Thompson v. Harris, 355 Mo. 176, 195 S.W.2d 645; Fidelity & Casualty Co., Inc., v. Tar Asphalt Co., Inc., 30 F.Supp. 216; Hickman v. Taylor, 153 F.2d 212; Van Drake v. Thompson, 38 N.E.2d 878. (8) Statements of account between relators showing the amount the individual relator owed corporate relator from the date he became employed by it to the time such employment terminated is material on the issue of agency, and is not privileged. Restatement, Agency, sec. 220(2) (g); Skidmore v. Haggard, 341 Mo. 837, 110 S.W.2d 726; Bates Motor Transport Lines v. Mayer, 14 N.E.2d 91; Eldridge v. McGeorge, 99 F.2d 835; 8 Wigmore, Evidence, secs. 2192-2285. (9) The corporate relator's books showing the account between relators as to all compensation and all sums for any and all purposes paid the individual relator are material on the issue of agency. In re Klemann, 132 Ohio St. 187, 5 N.E.2d 492. (10) Insurance policy or policies for all insurance on the truck driven by the individual relator at the time of the accident and the insurance policy or policies for all insurance coverage on the other trucks to which the individual relator had title at the time of the injury are material on the issue of agency. Bass v. Kansas City Journal Post Co., 148 S.W.2d 548; Reiling v. Missouri Ins. Co., 236 Mo.App. 164, 153 S.W.2d 79; Vaughn v. William F. Davis & Sons, 221 S.W. 782; Boten v. Sheffield Ice Co., 180 Mo.App. 96, 166 S.W. 883; Van Drake v. Thomas, 38 N.E.2d 878; Rivenbark v. Shell Union Oil Corp., 217 N.C. 592, 8 S.E.2d 919. (11) Written agreements between relators during the entire employment of the individual relator are material to the issue of agency. In re Klemann, 132 Ohio St. 187, 5 N.E.2d 492. (12) Where, as here, the order to produce relates to ordinary routine business records, as distinguished from confidential material such as trade secrets, it is the policy of the courts not to require too strict a showing as to the contents of records the party seeking discovery has never seen. State ex rel. Iron Fireman Corp. v. Ward, 351 Mo. 761, 173 S.W.2d 920. (13) And it is the policy of the courts not to require too strict a showing of materiality lest the purpose of the statute and the right of discovery be defeated. State ex rel. Iron Fireman Corp. v. Ward, 351 Mo. 761, 173 S.W.2d 920. (14) The order does not violate the rules governing privilege and does not authorize an unwarranted invasion of the rights of relators. Bead Chain Mfg. Co. v. Smith, 62 A.2d 215. (15) Where the moving party seeks discovery of evidence he has never seen, it is not necessary that the evidence sought to be designated with strict accuracy. State ex rel. Iron Fireman Corp. v. Ward, 351 Mo. 761, 173 S.W.2d 920. (16) It is sufficient if the order designates the evidence sought by such description as will apprise a man of ordinary intelligence. Union Trust Co. v. Superior Court, 11 Cal.2d 449, 81 P.2d 150.

Conkling, J. McCullen, Special Judge (sitting in place of Hyde, J., disqualified) concurs, and Tipton, Clark, Douglas and Ellison, JJ., and Leedy, C.J., concur.

OPINION

CONKLING

We here have before us a problem under the discovery section of our new Civil Code respecting production of documents for inspection and copying. Mo. R.S.A. § 847.86, Section 86, Civil Code of Missouri, Laws of Missouri, 1943, page 356. This action is an original proceeding in prohibition instituted by relators, Charles Henry Cummings and Standard Generator Service Warehouse, Inc., challenging the jurisdiction of the respondent, Judge Witthaus, as circuit judge, to enter the order for inspection of documents set out infra, in a case pending before him wherein one Nellie Johnson is plaintiff and relators are defendants.

The issue now before us arose in this manner. Nellie Johnson, as plaintiff, filed an action against relators, as defendants, for damages for the alleged wrongful death of her husband after he was killed on October 19, 1946, in Wayne County, Missouri by being struck by a truck driven by the individual relator Cummings. Plaintiff alleged that at the time her husband was killed Cummings, in the driving of said truck, was acting as the agent, servant and employee of and was then on the business of the corporate relator, Standard Generator Service Warehouse, Inc. In the lower court those allegations were denied by the answers of the defendants, relators here. The issue of agency,...