State ex rel. Terminal R. Ass'n of St. Louis v. Flynn, 43434

• Decision Date: 13 April 1953
• Docket Number: No. 43434,43434
• Citation: 257 S.W.2d 69,363 Mo. 1065
• Parties: STATE ex rel. TERMINAL R. ASS'N OF ST. LOUIS v. FLYNN, Judge.
• Court: Missouri Supreme Court

Page 69

257 S.W.2d 69

363 Mo. 1065

STATE ex rel. TERMINAL R. ASS'N OF ST. LOUIS v. FLYNN, Judge.

No. 43434.

Supreme Court of Missouri, en Banc.

April 13, 1953.

Warner Fuller, Arnot L. Sheppard, Lyman J. Bishop, St. Louis, for relator.

John H. Haley, Jr., Thomas R. McGinnis, St. Louis, for respondent.

DALTON, Judge.

This is an original proceeding in prohibition. Relator is defendant in a cause entitled Harold G. Davis, plaintiff v. Terminal Railroad Association of St. Louis, a corporation, defendant, which cause is pending in the circuit court of the city of St. Louis before respondent, Honorable William B. Flynn, a judge of said circuit court. By this proceeding the relator seeks to prevent the respondent from entering an order in said cause requiring it to produce four photographs for inspection, copying or photographing by plaintiff. It is admitted that the photographs are in relator's possession; and that, unless prohibited, respondent will order the production of the said photographs for the purposes mentioned.

The mentioned cause pending before respondent was instituted on April 3, 1952, and is an action under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq., for $249,890 damages for personal injuries sustained by plaintiff on account of the alleged negligence of the defendant. Plaintiff alleged that he was acting as the long field man in a switching crew comprised of employees of defendant and that he was struck and run over by the wheels of a railroad car which, in a switching movement, had been released from the locomotive and had been caused to enter upon track 3 before plaintiff had determined that another car and its coupler were in a position to receive and hold such railroad car. Numerous assignments of negligence are set out and specific injuries are alleged. The answer filed by defendant (relator) admitted 'that plaintiff was injured at the time and place mentioned in the petition', to wit, on March 25, 1952; and 'that plaintiff's left arm and left leg were injured to such an extent that it was necessary to amputate them.'

Thereafter, in response to plaintiff's interrogatories, the defendant advised plaintiff that an employee of its special service department, Edward L. Rheinhardt, 'took four photographs before plaintiff was removed from the point of accident'; and that these photographs were in the possession of W. P. Bittle, defendant's claim agent in the city of St. Louis. Plaintiff, thereupon, filed a motion requesting the court to order defendant (relator) to produce and permit plaintiff to inspect, copy or photograph the four photographs. The reason assigned in the motion is 'that such photographs disclose the physical conditions existing at such place and time * * * and will constitute relevant evidence in the trial of this action and such exact evidence of the physical conditions at such time and place has not been and is not otherwise available to plaintiff.' There was no allegation that such physical conditions had changed.

A hearing was had on the motion and a transcript of the testimony has been filed as an exhibit with relator's petition. The correctness of the transcript and relator's review of the facts is admitted by respondent's return. At the hearing defendant's (relator's) counsel objected to the production of the photographs, as follows: 'The Court has no jurisdiction to compel the defendant to bring into court for * * * inspection its private file which it is preparing for the purpose of defending this case.' The four photographs are 'privileged and * * * not competent evidence for any purpose at this time' and 'don't show anything that would be competent evidence', they 'are privileged' and 'are memoranda prepared for us for the purpose of preparing for trial.' They 'are a part of our preparation for trial.'

Plaintiff's counsel called Rheinhardt as a witness for the announced purpose of showing 'the circumstances under which the pictures were taken, the time and the place.' Over defendant's objection that defendant didn't have to 'give plaintiff's counsel the benefit of our knowledge with respect to' the photographs, that plaintiff had no right to show what the photographs show and that 'this is privileged and it is a part of our preparation for trial and this court hasn't jurisdiction to compel us to disclose it to our adversaries', the respondent permitted Rheinhardt to testify in support of the motion. Whether or not respondent erred in overruling defendant's objections to the examination of the witness is not before us in this proceeding.

Rheinhardt's testimony tended to show that he was employed by defendant (relator) as a sergeant in the special service department; that on March 25, 1952, he received a call at his office that a man had been injured in defendant's Gratiot street yard in the city of St. Louis. He went there immediately and found an injured man. He took four photographs, three before the ambulance arrived and one afterwards. One picture was taken 'as the stretcher was being placed right beside the man.' 'It showed the doctor was there.' The injured man was lying beside 'a track they call No. 3.' A picture was taken of a locomotive there 'on the lead.' He did not know the designation of the lead. The photographs were taken in the early evening before dark, but 'it was just at dusk.' He took the photographs because he considered it to be a part of his duty 'as a Terminal employee so to do.' He developed the pictures himself. In answer to a question as to whether the pictures were 'a fair representation of what you saw that night', he answered 'Well, it is just a picture of what was there, is all I can tell you. I don't know.' As to whether 'it' showed 'the conditions as they appeared to the eye that night', he said, 'It shows the conditions; yes, sir. At that time and place. Yes, sir.'

There was other testimony that the four photographs in question had been delivered by 'the special service department of the Terminal' to William P. Bittle, relator's claim agent. Bittle brought the photographs into court in response to a subpoena duces tecum. They were not exhibited or marked pending relator's application for our writ. Respondent let the record show that 'the court intends to sustain the motion to inspect and copy the documents in question, but * * * will not actually enter the order at this time' in order that relator may have an opportunity to apply for a writ of prohibition.

Respondent was proceeding under section 510.030 RSMo 1949, V.A.M.S., which is in part, as follows: 'Upon motion of any party showing good cause therefor and upon notice to all other parties, the court in which an action is pending may * * * Order any party to produce and permit the inspection and copying or photographing, by or on behalf of the moving party, of any designated documents, papers, books, accounts, letters, photographs, objects, or tangible things, not privileged, which constitute or contain evidence material to any matter involved in the action and which are in his possession, custody, or control * * *.' (Italics ours.)

Relator contends (1) that the photographs do not 'constitute or contain evidence material to any matter involved in the action', as required by section 510.030, supra, since they 'may be used only as illustrations of the testimony of a witness * * * and are hearsay like written statements'; (2) that the photographs are 'privileged' as a 'work product' prepared 'in view of possible litigation' and, hence, are exempt from discovery; and (3) that the motion to produce the photographs and the evidence in support thereof did not show 'good cause', as required by the statute. Respondent, on the other hand, contends that the photographs 'are admissible in evidence in the action in which they have been ordered produced, because upon the evidence in this proceeding they 'show the conditions as they appeared to the eye' and 'are a picture of what was there' at the place where the injury occurred before the injured person was removed therefrom'; that the photographs are not 'privileged' because they were made in the ordinary course of relator's business; and that "good cause' for discovery of the photographs was shown to exist.'

In the trial court the burden rested upon the plaintiff, who was the party seeking the order, to satisfy the trial judge as to the relevancy and materiality of the documents sought to be ordered produced, and to show that they were not privileged and that there was good cause for their production. Section 510.030, supra; State ex rel. Atchison, T. & S. F. R. Co. v. Trimble, 254 Mo. 542, 553, 163 S.W. 860; State ex rel. St. Louis Union Trust Co. v. Sartorius, 351 Mo. 111, 171 S.W.2d 569, 573. In this proceeding, however, relator is attacking the order which respondent is about to enter and the burden is on relator to show that the photographs about to be ordered produced are not relevant or material to the issues in the pending cause and hence are not competent nor admissible as evidence therein; or that they are in fact privileged; or that good cause has not been shown for their production; or that respondent otherwise lacks jurisdiction or will exceed his jurisdiction in entering the order. State ex rel. Schlueter Mfg. Co. v. Beck, 337 Mo. 839, 85 S.W.2d 1026, 1033; State ex rel. Cummings v. Witthaus, 358 Mo. 1088, 219 S.W.2d 383, 386. Prohibition is the appropriate remedy where the trial court exceeds its jurisdiction. State ex rel. Chicago, R. I. & P. R. Co. v. Woods, 316 Mo. 1032, 292 S.W. 1033, 1035(1).

It is well settled that section 510.030, supra, does not authorize an order for the production of any of the documents or things mentioned in said section, unless they 'constitute or contain evidence material' to some matter involved in the action. State ex rel. Thompson v. Harris, 355 Mo. 176, 195 S.W.2d 645, 647, 166 A.L.R. 1425; State v. Hinojosa, Mo.Sup., 242 S.W.2d 1, 6; State ex rel....