The State ex rel. Chicago, Rock Island & Pacific Railroad Co. v. Wood

• Decision Date: 08 April 1927
• Docket Number: 27398
• Parties: The State ex rel. Chicago, Rock Island & Pacific Railroad Company v. L. B. Wood, Judge of Circuit Court of Grundy County
• Court: Missouri Supreme Court

292 S.W. 1033

316 Mo. 1032

The State ex rel. Chicago, Rock Island & Pacific Railroad Company v. L. B. Wood, Judge of Circuit Court of Grundy County

No. 27398

Supreme Court of Missouri

April 8, 1927

Rule made absolute.

Luther Burns, Henry S. Conrad, L. E. Durham and Hale Houts for relator.

(1) Prohibition is the proper remedy. State ex rel. v Trimble, 254 Mo. 542; State ex rel. v McElhinney, 253 S.W. 1063; State ex rel. v Miller, 266 S.W. 985. (2) The writ should be made permanent. (a) Because by the order to produce respondent has ordered and attempted to authorize an unreasonable search and seizure of the papers, files and documents of relator, and has ordered relator to expose to view its individual and private affairs and confidential communications between attorney and client. State ex rel. v. Trimble, 254 Mo. 560; 18 C. J. 1119, 1120, 1130; Davis v. District Court, 192 N.W. 854; Travelers Ins. Co. v Jackson, 206 N.W. 99; Cully v. Ry. Co., 77 P. 202; Falco v. Railroad, 146 N.Y.S. 1024; United States v. Railroad, 236 U.S. 336; State v. Dawson, 90 Mo. 154; 40 Cyc. 2368, 2362, 2363; O'Brian v. Ins. Co., 109 Kan. 143; C. G. W. Ry. v. McCaffrey, 160 N.W. 821; Sweet v. Owen, 109 Mo. 7; Ebersole v. Rankin, 102 Mo. 50. (b) Because the proceedings to procure and the order to produce constitute a fishing expedition on the part of the attorney representing Kurfman and Nellie A. Smith for the purpose of obtaining information which may or may not be applicable to Kurfman v. Rock Island, and for use in any of the other three cases of Kurfman v. Burlington, Nellie Smith v. Rock Island, and Nellie Smith v. Burlington, and the proceedings for an order to produce further constitute a scheme of oppression and intimidation of the relator and of the witnesses in each and all of the four cases mentioned. State ex rel. v. Broaddus, 245 Mo. 142. (c) Because the order to produce in any event is in excess of the jurisdiction of the court in that the production of letters not mentioned in the petition to produce, are not shown by any affidavit or other evidence to be in existence, and in that letters and documents purporting to be written and to refer to matters occurring after Kurfman's alleged cause of action against relator arose, and therefore not competent or material evidence, are ordered to be produced. Art. 12, chap. 12, and Sec. 1375, R. S. 1919; State ex rel. v. Trimble, 254 Mo. 558. (d) Because the order in all of the respects heretofore mentioned is in violation of Section 11, Art. II, Constitution of Missouri, and the Fourth Amendment of the Constitution of the United States forbidding unreasonable search and seizure of persons and papers, and in violation of Sec. 1, of the 14th Amendment of the Constitution of the United States, in that it tends to deny the relator equal protection of the law, and to deprive it of its liberty and property without due process of law, and in said respect also in violation of Sec. 30, Art. II, and Sec. 10, Art. II, of the Constitution of Missouri, which provides that right and justice shall be administered without denial.

E. M. Harber for respondent.

(1) There having been no objection, suggestion in opposition to action of court below, the writ should not issue. There is apparently some seeming, more seeming than real we believe, conflict in the decisions of this court, as to when this extraordinary writ will issue, citing nisi prius judge to his humiliation before the bar of this court to answer for some claimed transgressions of the law. We believe we state the rule of this court most favorably to relator when we say it is only when such judge is proceeding to act without any authority, such lack of authority appearing from the face of the record, not as here sought to be injected dehors the record, such writ will issue. State ex rel. v. Bright, 224 Mo. 514. If there is any case in this State where such writ has been issued, where, upon appearance of parties, the judge of the court below, having jurisdiction of the subject matter and person, without any suggestion in any way, or at any stage of proceedings, of lack of jurisdiction or the exercise of excessive jurisdiction, we have been unable to locate such case. The last direct statement of this court upon this question seems to be in State ex rel. v. Huck, 246 S.W. 303, where it is said, l. c. 305, that "the general rule is that an application for a writ of prohibition will not be considered unless a plea to the jurisdiction has been filed and overruled in the lower court, or the inferior court has been asked in some form, without avail to refrain from further proceedings." State ex rel. v. Williams, 221 Mo. 247; State ex rel. v. McQuillin, 171 S.W. 75; 9 R. C. L. 182-188. (2) The order was not requested or made for inspection of relator's private papers and correspondence. It was to produce the letters and correspondence with its joint tortfeasor showing that by reason of malicious, wanton, false and oppressive acts of relator plaintiff Kurfman was discharged, and showing that relator's servant's agents and attorneys in the line of their duties, willfully, maliciously slandered plaintiff in the most outrageous manner, charging him with perjury. Said acts were not only wilfull and malicious but oppressive and done for the purpose of oppressing and intimidating plaintiff. Under such circumstances, there could be no privilege in the doing of said acts. "Privilege" implies good faith, not the doing of a tortuous act, willfully and maliciously and with the design of injuring and oppressing a citizen. State v. Derry, 20 Mo.App. 522; Calihan v. Ingram, 122 Mo. 255; Hide v. McCabe, 100 Mo. 412; Lamberson v. Long, 66 Mo.App. 253; 9 R. C. L. 177; Jones v. Murray, 167 Mo. 47; Sullivan v. Comm. Co., 152 Mo. 268; Reese v. Fife, 279 S.W. 415. Imputing perjury to one is actionable per se. Krup v. Corley, 95 Mo.App. 640; Roney v. Organ, 176 Mo.App. 234. (3) Such order for production is sufficient and in full compliance with all requirements when "it is sufficiently definite as to designate the books, letters and papers desired with such reasonable certainty that the party may know what is required of him."

Blair, J. All concur, except Gantt, J., not sitting.

OPINION

Blair, J.

An original proceeding in prohibition. Respondent is Judge of the Circuit Court of Grundy County and as such made an order upon relator for the production of certain papers, letters, etc. Relator contends this order was in excess of respondent's jurisdiction. Our provisional rule was ordered to be issued. Respondent entered his appearance and filed return to the petition as and for our provisional rule. The facts have been stipulated.

The Chicago, Burlington & Quincy Railway Company, herein referred to as the "Burlington," owned certain railroad tracks in Clay County, Missouri, near Kansas City, and operated its trains thereover. The Chicago, Rock Island & Pacific Railway Company, relator herein, and sometimes referred to as the "Rock Island," leased the use of said Burlington tracks and also operated its trains thereover, under a contract with the Burlington, whereby the Rock Island undertook to defend, and to save the Burlington harmless from, all suits filed against the Burlington due to alleged negligent operation of Rock Island trains over the tracks so leased from the Burlington.

One James M. Smith was section foreman in the employ of the Burlington. He was killed by a locomotive and train of the Rock Island. His widow, as administratrix, sued the Burlington for damages for his death. Under its contract the Rock Island undertook the defense of the case through its regular attorneys. Upon the second trial, said administratrix recovered judgment. The Burlington appealed to this court.

After the Smith case was tried, one James R. Kurfman, a discharged section foreman, filed suit against the Rock Island claiming the modest sum of $ 260,000 as damages for causing his wrongful discharge by the Burlington and for making certain alleged slanderous statements tending to reflect upon the veracity of Kurfman as a witness in the first and second trials of the Smith case.

Upon Kurfman's motion and over the exception of relator, respondent made the following order:

"Plaintiff's petition or order on defendant to produce for inspection of plaintiff with privilege of making copies of certain papers letters and documents.

"Coming on to be heard, appeared E. M. Harber on part of plaintiff and Hale Houts on part of defendant and both answering ready for hearing of said petition and application. The court after considering plaintiff's said petition and application and petition in this cause filed, which is and was to said application and petition here considered duly attached and made part thereof and there being no denial of said application and petition to produce said papers, letters and documents therein specified and the same being considered material and competent evidence relating to the merits of said cause and that plaintiff is entitled to have opportunity to inspect and if desired, to make copy thereof. It is therefore ordered by the court that to this end and purpose the defendant on Wednesday the second day of June, 1926, at the hour of ten o'clock a. m., have and produce at the law office of its local attorney R. E. Kavanaugh at Trenton, Grundy County, Missouri, the following letters, papers and documents in its possession mentioned and described in plaintiff's application and petition to-wit, letters or copies thereof written by defendant, its officers, agents and attorneys to and mailed and delivered to the attorneys, officers and agents of the Chicago, Burlington Railway Company on, and between the twenty-second day of October, 1924, and the tenth day of November,...