The Atchison v. Burks

• Decision Date: 03 July 1908
• Docket Number: 15,635
• Citation: 96 P. 950,78 Kan. 515
• Court: Kansas Supreme Court
• Parties: THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. LYDIA E. BURKS

96 P. 950

78 Kan. 515

THE ATCHISON, TOPEKA & SANTA FE RAILWAY COMPANY v. LYDIA E. BURKS

No. 15,635

Supreme Court of Kansas

July 3, 1908

Decided July, 1908.

Error from Neosho district court; LEANDER STILLWELL, judge.

Judgment reversed.

SYLLABUS

SYLLABUS BY THE COURT.

1. PRACTICE, SUPREME COURT -- Intermediate Orders -- Review. An order for an inspection and copy of documents, made under section 368 of the code, is reviewable after judgment as an intermediate order involving the merits.

2. EVIDENCE--Discovery--Order for an Inspection and Copy of Documents. Such an order, granted upon an unverified motion, without proof of the existence of the described documents and possession or control of them by the adverse party, is erroneous.

3 EVIDENCE--Same. Matters of procedure under the code section referred to discussed.

4. EVIDENCE--Admissions by a Corporation--Reports of Agents. In an action against a railway corporation for damages for personal injuries alleged to have been occasioned by a defective coupling apparatus, reports of its car inspectors concerning the condition of the coupler, whether based upon investigations made before or after the injury, can not be received in evidence as admissions by the defendant of the facts stated in the reports, unless such reports have been adopted or promulgated in an authoritative way by some official having power to bind the corporation by admissions.

5. EVIDENCE--Notice to a Corporation--Reports of Agents. Reports of the character described, duly received according to some regulation or customary practice, are admissible in evidence to prove notice to the company of their contents.

William R. Smith, O. J. Wood, and Alfred A. Scott, for plaintiff in error.

H. P. Farrelly, Thomas R. Evans, W. R. Cline, and J. Q. Stratton, for defendant in error.

OPINION

BURCH, J.:

The plaintiff recovered damages suffered on account of the death of her husband, Warren A. Burks, occasioned by the negligence of the defendant. At the time he was injured the deceased was engaged in an attempt to make a coupling of freight-cars. On the trial of the action it became material whether the coupling device of one of the cars was defective, and whether the defendant had notice of the defect.

Previous to the time the case was called for trial the plaintiff served upon the defendant a notice demanding an inspection and copy, or permission to take a copy, of the report of car inspector L. H. Klein, or any other car inspector or person employed by the defendant, relating to inspections of the car in question made shortly before and shortly after the date of the casualty. The defendant made no response, and the plaintiff filed an unverified motion for an order requiring compliance with the demand. The record of the proceedings at the hearing of this motion recites that the plaintiff introduced in evidence the demand for an inspection and copy of the documents referred to, and that the court, having heard the motion and demand and proof of service and having duly inspected the same, and having heard the argument of counsel and having been duly advised, made an order in terms as prayed for. This order was duly excepted to, and was ignored.

At the trial the plaintiff offered in evidence her affidavit stating that reports of the character described in the notice, motion and order had been made to the defendant, and stating what they contained. She averred that the defendant's inspectors made reports, both before and after the accident, showing that the coupler in question was defective. The offer was made in lieu of the reports themselves. The defendant objected, challenging the existence of the documents described, asserting that no foundation had been laid for the introduction of the affidavit, and maintaining that its contents were secondary and hearsay evidence only. The court met the objection in the following manner:

"My idea is this: I think, taking the proceedings that have heretofore been had, the application made to. the court for permission to take a copy of this report, and the order that was made by the court, and the affidavit now filed by the plaintiff, that this is at least prima facie evidence there was such a report, but the defendant says there was n't any. Now, then, I will give the defendant an opportunity to show there was no such report, if the defendant wishes to do so."

The defendant elected to rely upon the legal questions presented, the affidavit was read to the jury, and the court instructed the jury that they were at liberty to presume that reports had been made as stated in the affidavit, and were at liberty to consider such alleged reports in connection with all the other evidence in the cause in determining what the condition of the coupler was when Burks was killed. Exceptions by the defendant were duly saved.

Error is assigned upon the order requiring the defendant to permit an inspection and copy of the alleged reports, upon the admitting in evidence of the plaintiff's affidavit relating to such reports, and upon the instruction to the jury regarding them. The statute involved is section 368 of the code of civil procedure, which reads as follows:

"Either party or his attorney may demand of the adverse party an inspection and copy, or permission to take a copy of a book, paper or document in his possession or under his control, containing evidence relating to the merits of the action or defense therein. Such demand shall be in writing, specifying the book, paper or document with sufficient particularity to enable the other party to distinguish it; and if compliance with the demand within four days be refused, the court or judge, on motion and notice to the adverse party, may in their discretion order the adverse party to give to the other, within a specified time, an inspection and copy or permission to take a copy of such book, paper or document; and on failure to comply with such order the court may exclude the paper or document from being given in evidence, or if wanted as evidence by the party applying, may direct the jury to presume it to be such as the party by affidavit alleges it to be. This section is not to be construed to prevent a party from compelling another to produce any book, paper or document when he is examined as a witness."

The order in question is clearly reviewable under section 542 of the civil code, permitting the reversal, vacation or modification of intermediate orders involving the merits of an action or some part thereof. It is the manifest intention of the statute to reach the merits of the action. Its language so indicates, and its provisions are so framed. A party might altogether fail on the merits if he were denied the benefit of the order provided for, and his adversary might be able to trace defeat on the merits entirely to an affidavit admitted in evidence because of non-compliance with the order, or to the exclusion of documents which he desired to offer but which he had declined to allow to be inspected and copied. The order, however, is of a purely intermediate character. Its consequences can not be observed until they are registered in the result of the trial on the merits, and hence it is not reviewable until after judgment.

The procedure to obtain the order is by motion and notice, after demand and non-compliance. No provision is made for the framing of issues on the motion. The adverse party is not called upon to show cause why the order should not be made, but the party applying must establish his right to it before the order may lawfully be granted.

To entitle a party to the order there must be in existence a book, paper or document to be inspected and copied, and this book, paper or document must be in the possession or under the control of the adverse party. These facts are conditions precedent, and neither of them can be taken for granted. The circumstance that a demand has been made and ignored does not prove or tend to prove that they exist. The circumstance that a motion has been made asserting their existence does not afford any evidence of the truth of the assertion. The facts must be proved in some juridical way before the court is authorized to proceed, and the burden is upon the applicant to make the proof. The adverse party need not move until something has been presented which he needs to combat.

In most jurisdictions either statutes or rules of court provide for a verified application or for an affidavit to accompany the motion; in others rules derived from the old chancery practice relating to discovery exist. No rule of procedure has fallen under the observation of the court sanctioning the granting of an order without any showing other than the naked assertion of an unverified motion. It has been held that the inviolable right to be secure against unreasonable searches is involved. The right to immunity from the production of incriminating evidence and the right to protect privileged documents from disclosure may be jeopardized, and in many other respects the remedy is of such gravity and importance that it can not be administered in any other than a judicial way. It is not necessary that the facts alluded to shall be established beyond all controversy, and in many instances slight evidence may suffice, but their existence must fairly and reasonably be made to appear by some legally recognized method, in the absence of an admission dispensing with proof.

These propositions are not contested by the plaintiff. Her position seems to be that when the court made the order it was judicially determined that the desired documents were in existence and in the defendant's possession or control, and hence that an incontestable foundation was laid for the introduction of the affidavit. The...