State ex rel. Iron Fireman Corp. v. Ward

• Decision Date: 07 September 1943
• Docket Number: 38202
• Citation: 173 S.W.2d 920,351 Mo. 761
• Parties: State of Missouri at the Relation of Iron Fireman Corporation, a Corporation, Relator, v. Joseph J. Ward, Judge of the Circuit Court of St. Louis, Missouri, Presiding in Division No. 1 Thereof
• Court: Missouri Supreme Court

173 S.W.2d 920

351 Mo. 761

State of Missouri at the Relation of Iron Fireman Corporation, a Corporation, Relator, v. Joseph J. Ward, Judge of the Circuit Court of St. Louis, Missouri, Presiding in Division No. 1 Thereof

No. 38202

Supreme Court of Missouri

September 7, 1943

Provisional rule discharged.

Francis R. Stout and J. J. Brinkman for relator.

(1) Prohibition is the proper remedy to prevent respondent from enforcing and carrying out the order of May 15, 1942. St Louis, K. & S. Co. v. Wear, 135 Mo. 230, 36 S.W. 357; State v. Woods, 316 Mo. 1032, 292 S.W. 1033. (2) The order of May 15, 1942, violates rights guaranteed by the United States Constitution under the Fourth, Fifth and Fourteenth Amendments. Boyd v. United States, 6 S.Ct 524, 116 U.S. 616. (3) The order of May 15, 1942, violates rights guaranteed by the Constitution of Missouri, Sections 11 and 30, Article II. State ex rel. v. Trimble, 254 Mo. 542, 163 S.W. 860. (4) The motion for order to inspect records filed by plaintiff below is insufficient on its face as a matter of law, shows no indispensable necessity for the disclosures sought, shows that plaintiff is not entitled to the order granted, and therefore it is fatally defective conferred no jurisdiction and authority in respondent to make the order. State ex rel. Mo. Pac. R. Co. v. Hall, 325 Mo. 102, 27 S.W.2d 1027; State v. Fitzgerald, 130 Mo. 407, 32 S.W. 1115; State ex rel. v. O'Malley, 344 Mo. 639, 127 S.W.2d 684; Dowden v. Walrus Mfg. Co., 199 Mo.App. 657, 205 S.W. 258. (5) The motion for inspection and the order of respondent requiring the production of said books, records and papers were too broad, and this court should prohibit the enforcement of the order as a whole. State ex rel. Railway Co. v. Trimble, 254 Mo. 542, 163 S.W. 860. (6) The motion for order to inspect records, etc., does not state facts showing that the evidence sought to be inspected is material, and the allegations stating that it is material and that it does relate to the merits of this action, constitutes a mere conclusion of pleader and presents no issue. State ex rel. v. O'Malley, 344 Mo. 639, 127 S.W.2d 684. (7) Said order allows plaintiff to examine defendant's private papers to glean therefrom any evidence which plaintiff may deem useful in cross-examining defendant's witnesses or useful in embarrassing defendant in the trial of this suit, and therefore is an effort to pry into the preparation of defendant for trial. State ex rel. v. Hall, 325 Mo. 102, 27 S.W.2d 1027. (8) Said order requires the production of hearsay evidence. State ex rel. v. Hall, 325 Mo. 102, 27 S.W.2d 1027. (9) Said motion to inspect records, etc., does not state facts showing that this inspection of said records, etc., is indispensably necessary to plaintiff in this cause. State ex rel. v. O'Malley, 344 Mo. 639, 127 S.W.2d 684; Dowden v. Walrus Mfg. Co., 199 Mo.App. 657, 205 S.W. 258. (10) Said motion on its face shows that plaintiff is already in possession of the facts sought. State ex rel. v. Sartorius, 119 S.W.2d 471.

E. H. Schwarzenbach and Banister, Leonard & Sibley for respondent.

(1) Prohibition lies only when a tribunal of inferior rank usurps or exceeds its jurisdiction, and does not lie to control, direct or influence discretionary acts of such tribunal. Sec. 1773, R. S. 1939; State ex rel. v. Westhues, 316 Mo. 457, 290 S.W. 443. (2) The writ is to be issued only when sound judicial discretion demands it, and is to be used with great caution and forbearance and not issued in doubtful cases. State ex rel. v. Bruce, 227 Mo.App. 631, 55 S.W.2d 733. (3) Plaintiff, in seeking the order for inspection, proceeded primarily under Section 1079, R. S. 1939. This section expressly provides on its face that the judge before whom an action is pending may, "in his discretion," order either party to give to the other an inspection and copy of a paper in his possession or under his control containing evidence relating to the merits of the action. This does not justify clear and manifest abuse of discretion, but does show the legislative intent to vest very broad discretionary powers in the trial court in the matter of granting or refusing motions to inspect. Section 1079, R. S. 1939. (4) Statutes providing for production and inspection of books and papers are regarded as remedial in nature, to be liberally construed. 27 C. J. S., sec. 69, p. 102. (5) Books and papers in the possession or control of the adverse party, containing material and relevant information, are ordinarily subject to production and inspection. 27 C. J. S., sec. 71, p. 103. (6) The discretion vested in the court should be liberally exercised to enable parties properly to prepare for trial. 10 R. C. L., p. 1092. (7) The object of such statutes, like the statutes providing for the taking of depositions, is to facilitate and expedite trials and to guard against surprise and delay. State ex rel. v. Mueller, 59 S.W.2d 719. (8) The part of the sheets, books and records in the possession and control of relator and sought to be inspected, contains "relevant and material evidence to the issues" involved in this case, and hence there is no violation of either the Federal or the State Constitution. There is, in fact, no constitutional question presented here. State ex rel. v. Trimble, 254 Mo. 542, 163 S.W. 860; State ex rel. v. Wood, 316 Mo. 1032, 292 S.W. 1033. (9) The motion for an order to inspect filed by plaintiff is sufficient on its face, even if respondent had considered the motion alone, but respondent did, in fact, consider not only the motion, but the pleadings, the issues involved in the case, and the uncontradicted statements of fact of counsel for plaintiff made in the presence of counsel for relator, and did consider all arguments of counsel for both sides, and was fully informed in the matter. Under the decision of this court, respondent had the right and duty to consider all things and matters before respondent. State ex rel. v. O'Malley, 344 Mo. 639, 127 S.W.2d 684. (10) No reply has been filed by relator to respondent's return. Hence every material allegation of new matter contained in the return must be taken as admitted. State ex rel. Hannigan v. Kirkwood, 342 Mo. 242, 114 S.W.2d 1026. (11) The motion to inspect and order of inspection of court were limited strictly to certain specified sheets, books and papers made and kept by relator in its course of business with plaintiff, and containing facts and evidence pertinent to the issues in this case, and the motion and order were not too broad. State ex rel. v. Trimble, 254 Mo. 542, 163 S.W. 860. (12) The motion for order to inspect was sufficient had it stood alone, but, the motion was not taken and considered alone by the court, but only in connection with the pleadings, the issues and all the facts and circumstances before the court. State ex rel. v. O'Malley, 344 Mo. 639, 127 S.W. 684. (13) The order of inspection applies only to certain specified sheets, books and records of relator kept in the regular course of dealings with plaintiff, containing evidence material to the issues. They are not confidential to relator as a defendant in this suit. An inspection of them should not embarrass relator. Such records are open to inspection, like books of account, letters written, train records, etc. State ex rel. v. Trimble, 254 Mo. 452, 163 S.W. 860; State ex rel. v. Wood, 316 Mo. 1032, 292 S.W. 1033; State ex rel. v. O'Malley, 344 Mo. 639, 127 S.W.2d 684; State ex rel. v. Sartorius, 119 S.W.2d 471. (14) The petition for an order to inspect need not show that the inspection is an absolute "indispensable" necessity before one may have such order. Sec. 1079, R. S. 1939; 27 C. J. S., sec. 80, p. 119; London G. & A. Co. v. Bohnert, 146 Mich. 477, 109 N.W. 1049; State ex rel. v. Mueller, 59 S.W.2d 719; State ex rel. v. Trimble, 254 Mo. 542, 163 S.W. 860. (15) Plaintiff was not in possession of the facts and evidence sought in the motion for inspection, and plaintiff's only source of knowledge for some of the facts are the specific sheets, books and records of relator mentioned in the order of inspection. Certainly plaintiff was not in possession of all the facts, as referred to in State ex rel. v. Sartorius, 119 S.W.2d 471. (16) The application for a writ of prohibition was untimely and too late. State ex rel. v. Mason, 154 S.W.2d 67.

Leedy, J. All concur except Gantt, J., absent.

OPINION

LEEDY

This is an original proceeding in prohibition. The relator contends that respondent, a judge of the Circuit Court of the City of St. Louis, exceeded his jurisdiction in making an order of inspection in a case pending in that court in which Elda A. Stemmler is the plaintiff, and relator, Iron Fireman Corporation, is the defendant. Respondent's return to our provisional rule contains allegations of new matter to which no reply was made by relator. Under these circumstances, such allegations in the return will stand admitted. State ex rel. Hannigan v. Kirkwood, 342 Mo. 242, 114 S.W.2d 1026.

It appears from the pleadings that plaintiff's petition in the suit below alleged that relator, Iron Fireman Corporation, had installed in 1938 a mechanical furnace stoker in plaintiff's residence, warranting that it would function properly; that it overheated the furnace, and, after repeated complaints and various service calls, relator installed a draft control in 1940, which was warranted to correct the trouble, but failed to do so; and after further complaints and promises, plaintiff's house was set on fire in 1941, through overheating, caused by the defective installations. It further appears that, upon application of plaintiff, respondent entered an order directing relator to permit the inspection of certain original sheets, books, and records pertaining...