State v. Trimble

• Decision Date: 10 February 1914
• Citation: 254 Mo. 542,163 S.W. 860
• Parties: STATE ex rel. ATCHISON, T. & S. F. RY. CO. v. TRIMBLE et al.
• Court: Missouri Supreme Court

163 S.W. 860

254 Mo. 542

STATE ex rel. ATCHISON, T. & S. F. RY. CO. v. TRIMBLE et al.

Supreme Court of Missouri.

February 10, 1914.

1. PROHIBITION (§ 28)—BOOKS AND PAPERS —INTERMEDIATE TRIAL—EFFECT.

Where, in an action for wrongful death, the trial court granted an order requiring defendant railroad company to produce certain operating records for plaintiff's inspection and use at the trial, the fact, that pending a rule for prohibition to prevent the enforcement of such order, the action was tried in the circuit court and an appeal taken, did not require a dismissal of the rule on the ground that the prohibition proceedings thereafter presented only a moot question.

2. DISCOVERY (§ 89)—BOOKS AND PAPERS— STATUTES—PROCEEDINGS.

While Rev. St. 1909, §§ 1944-1948, confer on the courts implied power to compel parties to produce papers to use at a trial, subject to the condition that they are relevant to the issues and the burden of showing such relevancy is on the party asking for the production, yet where plaintiff, in an action for wrongful death against a railroad company, attached her amended petition filed in the cause to her application for the discovery of certain of defendant's operating records, the court could compel the production

of any of such records that would have been admissible in evidence under the petition.

3. DISCOVERY (§ 89)—BOOKS AND PAPERS— SCOPE OF RELIEF.

Where, in an action for wrongful death of a trackman, plaintiff specifically alleged that decedent was struck and killed by defendant's passenger train No. 6 at the town of B. on the night of October 15, 1911, the court on an application to compel the railroad company to produce for plaintiff's inspection its operating train records had no jurisdiction to require the production of records relating to the operation of other trains than the one specified.

Bond, J., dissenting.

En Banc. Application for writ of prohibition by the State, on the relation of the Atchison, Topeka & Santa Fé Railway Company, against Francis H. Trimble and another. Writ granted.

This is an original proceeding instituted in this court by the relator to prohibit the respondents from compelling the former to produce for inspection certain records, documents, and papers in its possession, pertaining to its business, as evidence in a certain cause pending in the circuit court of Carroll county, wherein Cora Sells is the plaintiff and the relator is the defendant, for the purpose of recovering $10,000, damages sustained by her through the alleged negligence of the company in killing her husband, John Sells. To the petition for the writ, the respondents filed a return admitting the allegations of the petition, and thereupon the relator moved for judgment on the pleadings.

The facts are substantially as follows:

At the time the petition for the writ of prohibition was filed in this court, a suit was pending in the circuit court of Carroll county, wherein the respondent Cora Sells was the plaintiff, and the relator, the Atchison, Topeka & Santa Fé Railway Company, was the defendant, and the respondent Francis H. Trimble was the judge of said circuit court. That suit was based upon the second section of the damage act, to recover $10,000 damages from the defendant, for the alleged negligence in killing her husband on the night of October 15, 1911, near 12 o'clock, at or near the town of Bosworth, on the line of defendant's road. The amended petition was in two counts. It alleged that Cora Sells was the widow of John Sells, and that he was killed by one of the defendant's trains on the night of October 15, 1911; that said John Sells was in the employ of the company as a night track watchman, between the towns of Dean Lake and Bosworth, stations on the line of said railway company. The charge of negligence in the first count was that the agents, servants, and employés of the company in managing and controlling its passenger train No. 6, in the nighttime, having reason to know that said John Sells was likely to be upon and in dangerous proximity to said track, ran said train No. 6 at a rapid and dangerous rate of speed about one hour after schedule time and without warning to said John Sells of the approach of said train and without a headlight lighted upon and burning on the engine sufficient to enable said Sells to see or know of the approach of said train. The second count, after restating the formal charges made in the first count, specifically alleges that said train No. 6 was the identical train that struck and killed plaintiff's husband, and then stated a violation of what is commonly called the humanitarian doctrine, as the ground of negligence, in that said Sells was in a position of danger; that after seeing him or knowing he was in said place of danger, and that he was unaware of the near and dangerous approach of said train and unable to remove himself from said peril, the agents and servants of the defendant negligently failed to give the ordinary signals in time to have averted the death of Sells, and negligently failed to use the appliances at hand to stop or slack the speed of said train in time to have prevented the injury.

After filing said amended petition, the plaintiff, on March 30, 1912, gave the defendant notice of her intention to present a petition to the respondent Judge Trimble, at Liberty, Clay county, praying for a special order to compel defendant to produce and exhibit to plaintiff and her attorneys certain train sheets and records described to be used as evidence in said cause, as follows: "(1) Train sheets at its train dispatcher's office in Marceline, Mo., on October 15 and 16, 1911, upon which was noted the arrival and departure of all of relator's trains, especially passenger train No. 6; the defective condition of the headlight on any of said trains; the cause of the delay of any of said trains at the stations of Carrollton, Standish, Bosworth, Dean Lake, and Marceline, from 7 o'clock p. m., October 15, to 7 o'clock a. m., October 16, 1911. (2) That defendant also kept operators' train registers at the stations of Carrollton, Standish, Bosworth, and Dean Lake on said dates upon which was kept the arrival and departure of all of relator's trains at such stations from 7 o'clock p. m., October 15, to 7 o'clock a. m., October 16, 1911. (3) That on said dates relator had certain printed rules in force for the guidance of its dispatchers and agents in relation to keeping a headlight lighted up and burning in the nighttime on its trains and of reporting the absence of such headlight while passing said stations of Carrollton, Standish, Bosworth, and Dean Lake." Without going into the details of the petition praying for the order to produce said records, documents, and papers, it will be sufficient to state that it does not plead any specific facts showing in what way the same would be material to the issues joined in said case. However, it should be added that a copy of the amended petition filed in said cause was attached to and made a part of the petition praying for said order to produce said papers, etc. Said petition for the order was duly sworn to by Sen. Busby, counsel for plaintiff.

Counsel for both the plaintiff and defendant appeared at the time and place named for the presentation of said petition, and thereat counsel for defendant announced to the judge of said court, and to counsel for plaintiff, that it was ready and willing to exhibit to plaintiff and her counsel the train sheets made and kept by defendant at its train dispatcher's office at Marceline on October 15 and 16, 1911, relating to said train No. 6, and offered to let them take copies of said sheets, so far as they related to said train No. 6; also to give to her and her counsel all the information said sheets or train registers imparted with reference to the condition of the headlight, the arrival and departure of said train No. 6, at Carrollton, Standish, Bosworth, and Dean Lake on said dates, which said offer was by plaintiff and her counsel declined, and insisted upon the production of all of the train sheets, train registers, and the printed rules of defendant in relation to the keeping of a headlight lighted upon and burning on all its said trains from 7 o'clock p. m., of October 15, to 7 o'clock a. m. of October 16, 1911. That notwithstanding this offer of relator, the judge of said court made an order directing it to produce all of its train sheets and train registers regarding all of its trains mentioned in the petition praying for said order, for the purposes therein stated. Counsel for the defendant, in said cause, the relator here, believing that said order of Judge Trimble was unreasonable, too broad and sweeping in its command, that the petition praying for said order did not confer jurisdiction upon said court to make the same, and that said order was void and invaded the private rights of the relator and gave said Cora Sells and her attorneys a right and privilege which they were not entitled to under the law of this state, applied to this court for a preliminary rule of prohibition, which was granted. The formal issuance of the writ was waived by respondents; and, after practically admitting the truthfulness of the petition in their return, counsel for relator moved for judgment on the pleadings.

George J. Mersereau and Thomas R. Morrow, both of Kansas City, J. P. Gilmore, of Tulsa, Okl., and John H. Lathrop and Jones & Conkling, all of Carrollton, for relator. L. H. Woodyard, of Bosworth, and Busby Bros. & Withers, of Carrollton, for respondents.

WOODSON, P. J. (after stating the facts as above).

I. Prior to the consideration of the merits of this...