State ex rel. Missouri Public Service Co. v. Elliott
| Decision Date | 09 December 1968 |
| Docket Number | No. 53740,53740 |
| Citation | 434 S.W.2d 532 |
| Court | Missouri Supreme Court |
| Parties | STATE ex rel. MISSOURI PUBLIC SERVICE COMPANY, Relator, v. Honorable R. Kenneth ELLIOTT, Judge, Respondent. |
William H. Sanders, James Borthwick, John C. Mills, III, Kansas City, for relator. Blackwell, Sanders, Matheny, Weary & Lombardi, Kansas City, of counsel.
Glenn McCann, Kansas City, for respondent. Knipmeyer, McCann & Millett, Kansas City, of counsel.
This case was instituted by the filing of an original petition for prohibition in this Court. We issued our provisional rule, Respondent filed his return, and there are no material fact issues. We shall state the essential facts. Many of these are shown in exhibits attached to the petition.
On October 11, 1966, Frankie J. Williams filed suit in Platte County against Relator, Missouri Public Service Company, for personal injuries sustained in an explosion and fire occurring in an underground vault of the United Telephone Company building in Platte City on September 2, 1966, where he was working as a cable splicer's helper. Plaintiff's immediate employer was 'Electrocom,' which was apparently installing equipment under an independent contract, but that is not material here. Relator furnished gas service to the telephone building with underground lines in the surrounding streets and alleys. Plaintiff alleged that through the negligence of Relator gas had been allowed to escape from its lines into the vault and that this natural gas caused the explosion when he lighted a match. The suit was filed upon the res ipsa theory, and damages of $100,000 were prayed. The answer denied all substantive allegations, and pleaded contributory negligence and assumed risk.
Within a few hours after the explosion (which seems to have pretty well wrecked the building) the manager of the Central Adjustment Bureau located in Kansas City, and an independent consulting engineer were sent to the scene to investigate. The manager was J. Mac Tinklepaugh and the engineer was William K. Mathews. Tinklepaugh testified that the Bureau was 'owned by the insurance companies,' and that he was 'hired' to make this investigation by the 'Commercial Union,' being contacted by Mr. Redsted of its local claims office in Kansas City, Missouri. It seems to be agreed or assumed that Commercial Union did carry fire insurance on the building and perhaps a more inclusive type of coverage. This witness saw the attorney for Commercial Union, Glenn McCann, at the scene, and stated that he received some directions from Mr. McCann. Mr. Mathews was called by phone from St. Joseph by Mr. McCann and went promptly to the scene.
On January 5, 1967, while no litigation was pending by or against Commercial Union, Relator (sole defendant in the Williams suit) sought to take the depositions of Mathews and Tinklepaugh, producing them by subpoena. Mr. Moore, an associate of Mr. McCann, appeared, purportedly for the witnesses, and for Commercial Union, United Telephone and Mr. McCann. At this point it was obvious that the investigation by each and both of these witnesses was made for Commercial Union or Mr. McCann and, if nominally for the latter, then for Commercial Union through him. On all substantive questions to each of these witnesses, such as what he did at the scene, or what investigation he made, the witness refused to answer upon instructions from Mr. Moore. This direction was based upon the stated reasons that the questions and answers would involve the work product of Commercial Union, Mr. McCann and United Telephone, in preparation for or in anticipation of 'possible or probable' litigation (none of which was then pending). Mr. Mathews admitted that he had records and memoranda, in addition to his recollection. At this point counsel for Relator asked orally that the witnesses be compelled to answer by order of the Court, or be held in contempt.
Motions to that effect and also requesting subpoenas duces tecum were filed; we need not go into detail concerning them. On July 10, 1967, the Court ordered that the witnesses appear for a second deposition and that they 'answer any and all questions concerning their knowledge of this accident.' On August 11, 1967, the witness and attorneys appeared again. Mr. McCann then appeared for the witnesses, and made a statement at the very outset to the effect tht he construed the order of Court as requiring the witnesses only to state 'their knowledge as eyewitnesses to the accident,' and that he would instruct them not to answer any other or further questions, for the reason that they were experts retained by him and working under his supervision in 'preparation for or the possibility of litigation' in which his clients might be involved, and that such information as they might have acquired was privileged. It was developed that the witnesses, on instructions, had not brought their records. They did refuse to produce any records and no substantive questions were asked. Plaintiff's counsel in the pending suit noted that he had made no objection and that Mr. McCann had no connection with the plaintiff.
At this point a change of venue was taken to Clay County whereupon Respondent entered the picture. In that Court Relator filed an application for the issuance of subpoenas duces tecum and a motion for an order requiring the witnesses to appear and testify. Mr. McCann filed, on special appearance for the witnesses, a motion to quash that application and for a protective order. The Court announced that it would as of March 22, 1968, enter an order quashing the application for subpoenas and further providing that Relator might not inquire into the 'knowledge, observations, activities, tests, opinions or conclusions of said witnesses derived from their investigation regarding the nature and causes of the explosion involved in this action.' This, of course, resulted in the present proceedings. There seems to be some ambiguity in the order, but we shall consider it fully upon the merits.
Before reaching the legal questions we note a few further facts which are somewhat explanatory. Relator took the deposition of plaintiff, Williams, at great length. It was thus developed: that he and another employee had used, for a substantial period on the afternoon preceding the explosion, an acetylene torch with its gas hose running down through the trapdoor into the vault; that they had used lacquer thinner (of which they had two cans) to polish lead 'sleeves'; and also that there was little or no ventilation in the vault and that the trapdoor had been closed when the workmen left on that previous afternoon. The explosion occurred a few minutes after the workmen entered the vault the next morning; at that time plaintiff had again carried the acetylene torch and hose into the vault. It thus becomes glaringly obvious that in the examination of the witnesses now involved, Relator was seeking information which might establish, or lead to other evidence establishing, some cause for the explosion other than natural gas.
The case turns primarily upon the provisions of Rule 57.01(b), V.A.M.R. For convenience, we quote those parts which are applicable here, as follows:
Respondent's order on its face presents us with two questions: (1) was he correct in refusing to permit subpoenas duces tecum? And (2), was he correct in forbidding what seems to be all discovery from the witnesses Mathews and Tinklepaugh? Mr. McCann appears here nominally for the Respondent, but actually for the Commercial Union (which he says is now involved in litigation against Relator as a subrogee), and indirectly perhaps for the witnesses. His support of the order is based upon the contention that these witnesses were experts and that all that they did and saw (visual, oral or written), as well as all memoranda and reports, constituted 'work product' performed and made in anticipation of litigation; and that all such was privileged. He must stand or fall on this battle line. At times Mr. McCann seems to entertain the view that all of this was his work product. We shall look through him to his client, for a lawyer, acting independently without a client, is in no position to claim any work product. Relator insists: (1) that these witnesses were agents of a nonparty, and entitled to no claim of work product or privilege under Rule 57.01(b); and (2) that, party or no party, an expert, as well as everyone else, may be required to tell what he did, saw, took, or disturbed; and further, but somewhat incidentally, that injustice will result here from a refusal of disclosure, since Relator is defending a serious personal injury suit filed on the res ipsa theory, and is thus called upon to establish the cause of the explosion.
Relator's brief is a little confusing concerning any insistence upon the production of the records and memoranda of these witnesses under subpoenas duces tecum. The point is not fairly included in the statement of its principal point, but counsel dwell at some length in the argument portion of the brief upon the supposed applicability of State ex rel. Filkey v....
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