State ex rel. Missouri Pac. R. Co. v. Hall

• Decision Date: 15 May 1930
• Docket Number: 29834
• Citation: 27 S.W.2d 1027,325 Mo. 102
• Parties: The State ex rel. Missouri Pacific Railroad Company v. Willard P. Hall, Judge of Circuit Court of Jackson County, and John J. Murphy, By His Next Friend, Terrance W. Imes
• Court: Missouri Supreme Court

27 S.W.2d 1027

325 Mo. 102

The State ex rel. Missouri Pacific Railroad Company v. Willard P. Hall, Judge of Circuit Court of Jackson County, and John J. Murphy, By His Next Friend, Terrance W. Imes

No. 29834

Supreme Court of Missouri

May 15, 1930

Rule made absolute.

Edward J. White and Hackney & Welch for relator.

(1) The order directing the defendant to produce for plaintiff's inspection a part of the defendant's claim or investigation file, being statements taken after the accident, was wholly without the jurisdiction of the court. State ex rel. Railway Co. v. Woods, 316 Mo. 1032 292 S.W. 1033; People ex rel. Lemon v. Supreme Court, 156 N.E. 84, 245 N.Y. 24; State v. Hall, 175 P. 267, 55 Mont. 182; State v. Yee Guck, 195 P 363, 99 Ore. 231; Taylor v. State, 221 S.W. 611; Tinker v. State, 253 S.W. 531; Davis v State, 270 S.W. 1022; State v. Bankston, 116 So. 565; Sprinkle v. State, 102 So. 844, 137 Miss 731; People v. Nields, 232 P. 985, 70 Cal.App. 191; Currie v. State, 279 S.W. 834; Ex parte Schoepf, 74 Ohio St. 1, 77 N.E. 276; Franklin Twp. v. Crane, 80 N.J.Eq. 509, 85 A. 408. (2) The court had no jurisdiction to order produced for inspection documents made in the investigation of the facts or in preparation for trial, because the same are not "evidence." State ex rel. v. Trimble, 254 Mo. 542; State ex rel. v. Broaddus, 245 Mo. 123; 18 C. J. 1119, 1126; 1 Pomeroy's Eq. Juris, sec. 201 et seq.; Wigram on Discovery, sec. 342; Hare on Discovery, 183, 189, 9 R. C. L. 174, sec. 13. (3) The petition for the production and inspection was insufficient to give the court jurisdiction to make the order. Dowden v. Mfg. Co., 199 Mo.App. 657; State ex inf. v. Tobacco Co., 177 Mo. 1; 18 C. J. 1093; 9 R. C. L. 174, sec. 13; 23 Am. & Eng. Ency. Law, 176; Thompson on Trials, secs. 743-757; Ex parte Clark, 46 L. R. A. 837; Beebe v. Equitable Mut. Assn., 76 Iowa 129; Jenkins v. Bennett, 40 S.C. 393; United States v. Terminal Railway Assn., 154 F. 268.

Atwood, Wickersham, Hill & Chilcott for respondents.

(1) The power of a trial court to order an inspection and copy of papers is both inherent and statutory; the power existed at common law and has been confirmed and strengthened by statute. State ex rel. v. Anderson, 270 Mo. 533; Sec. 1378, R. S. 1919. (2) The contention that the trial court had no jurisdiction to order an inspection of the reports and statements in question because the same are not "evidence" is wholly untenable. Sec. 1374, R. S. 1919; State v. Tippett, 296 S.W. 135. (3) There is no merit in defendant's contention that the petition for the production and inspection was insufficient to give the court jurisdiction. The petition for the order, the plaintiff's petition, the answer to plaintiff's petition for the order, all show that the reports and statements ordered to be inspected contain evidence relating to the merits of the action or defense.

OPINION

Gantt, J.

Relator seeks to prohibit the enforcement of an order of the Circuit Court of Jackson County, in the case of John J. Murphy, by next friend Terrance W. Imes, v. Missouri Pacific Railroad Company. Our provisional rule was granted, and respondents demur to the petition "for the reason that no ground is properly alleged for the granting of the writ of prohibition."

The facts summarized from the petition follow:

John J. Murphy, twelve years of age, claims that on August 3, 1926, he suffered injuries by being forced to jump from a moving car by the employees of relator. August 9, 1926, the claim agent of relator procured from Murphy a written statement of the facts leading to and causing his injuries. February 3, 1927, Murphy brought suit by next friend in said circuit court at Independence, charging his injuries to negligence and willfulness of employees of relator, who at the time were in control of the moving car. July 16, 1928, depositions of the claim agent and others were taken by Murphy, from which it appeared that shortly after he was injured, the employees in control of the moving car made written reports to relator of the occurrences leading to the injuries. Thereafter, Murphy petitioned the court for an order requiring relator to produce for his inspection said reports of the employees and his written statement to the claim agent, and that he be permitted to make photographic copies of said reports and statement. The court granted the petition and made the order. Thereupon, relator petitioned this court for relief, contending the order is in excess of jurisdiction.

Respondents contend the order is authorized by State v. Tippett, 317 Mo. 319, l. c. 326, 296 S.W. 132, l. c. 135. In that case it was charged that an automobile driven by the defendant collided with one Fitzpatrick, and that defendant left the scene of the occurrence without giving the information required by law. In the course of the opinion we said:

"Sometime after his arrest, Tucker, contemplated witness for the State, gave the prosecuting attorney a written statement relative to the accident. Defendant filed a motion to inspect the statement, which the court denied. The contemplated use was then disclaimed by the prosecuting attorney, nor was it used in the trial. The motion goes no further than requesting a rule on the prosecuting attorney to examine a written statement given him by Tucker relative to the accident and then in his possession. This was a document, and, provided it tended to impeach Tucker, was admissible on the part of defendant for that purpose. The general rule denying the inspection of documents in the hands of an adverse party has been greatly relaxed in modern cases. In civil cases an inspection of documents in the hands of opposing parties, such as papers, contracts, and corporation records, upon motion, have been allowed. The cases seem to hold that it is a matter of indifference whether the document to be examined may be of actual benefit to the party filing the motion to inspect. If from the motion the document may be material, the right of inspection obtains. In the instant case the request for inspection relates to a statement given by Tucker relative to Fitzpatrick losing his life on State Highway No. 25, north of Bernie. The motion then shows that the statement may be material. We are unable to perceive why the privilege should not obtain in a criminal case, although we have been unable to find an authority in point. However, State ex rel. v. Woods (Mo. Sup.), 292 S.W. 1033, a civil case, has a bearing on the question. The prosecuting attorney is both an officer of the State and of the court, and his duty extends no further than an impartial, fair, and just trial of defendant. If Tucker's statement comprised the truth, it would have availed defendant nothing in the inspection of it. If in any manner it tended to show that defendant was not guilty of the offense charged, he was entitled to the benefit of it. That it was desired that the State's evidence remain undisclosed, partakes of the nature of a game, rather than judicial procedure. The State in its might and power ought to be and is too jealous of according a defendant a fair and impartial trial to hinder him in intelligently preparing his defense and in availing himself of all competent material and relevant evidence that tends to throw light on the subject-matter on trial. Inasmuch as we reverse the judgment and remand the cause on another point, it is unnecessary to decide whether the ruling of the trial court on the record constituted prejudicial error. But we do hold that the right to inspect the statement obtained."

The only authorities we have found tending to support this pronouncement follow: Sprinkle v. State, 102 So. 844; Chesapeake & O. Ry. Co. v. Swartz, 80 S. E. (Va.) 568, l. c. 571.

On the other hand, in State v. Fitzgerald, 130 Mo. 407, l. c. 424, 32 S.W. 1113, the trial court overruled a motion, filed before the taking of testimony, to compel the prosecuting attorney to produce in court a written statement of the defendant relative to his connection with the homicide, and in ruling the question, we said:

"No reason has been assigned wherein there was error in overruling this motion. It is true that it is said the statement was necessary and material to the defendant in the preparation and proper presentation of his defense, but as to wherein or how material we are left to conjecture.

"Nor has it been made apparent to us why it was necessary, for the purpose claimed by defendant.

"Moreover, it was the evidence of the State, and if defendant's contention be correct, he could, for like reason and upon the same principle, have asked the court to require the State to produce its witnesses before his counsel for their examination in regard to their knowledge of the case, that he might thereby be better prepared to make his defense, something for which no lawyer would contend. At most, it was a matter resting in the discretion of the court, and it did not act unwisely in overruling the motion."

Furthermore the courts of the country have decided the question contrary to the pronouncement in the Tippett case. This is indicated by decisions in other jurisdictions which follow: People ex rel. Lemon, Dist. Atty., v. Supreme Court of State of New York et al., 156 N.E. 84; State v. Hall, 175 P. 267; State v. Yee...