Watts v. Superior Court In and For Maricopa County, 6934

• Decision Date: 16 December 1959
• Docket Number: No. 6934,6934
• Citation: 87 Ariz. 1,347 P.2d 565
• Parties: Earl WATTS, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA and the Honorable Renz L. Jennings, Respondents.
• Court: Arizona Supreme Court

Page 565

347 P.2d 565

87 Ariz. 1

Earl WATTS, Petitioner, v. SUPERIOR COURT of the State of Arizona, IN AND FOR the COUNTY OF MARICOPA and the Honorable Renz L. Jennings, Respondents.

No. 6934.

Supreme Court of Arizona.

Dec. 16, 1959.

Stockton & Aldrich, Phoenix, for petitioner.

Finn, Gorey & Ely, Phoenix, for respondents.

JOHNSON, Justice.

This is an original application for a writ of prohibition to restrain the respondent Superior Court of Maricopa County from enforcing its order requiring the production for inspection of a statement made by the plaintiff to an agent of the defendant's insurer. Rule 34, Rules of Civil Procedure, 16 A.R.S., provides:

'Upon motion of any party showing good cause therefor and upon notice to all other parties, and subject to the provisions of Rule 30(c), the court in which an action is pending may: 1. 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 relating to any of the matters within the scope of the examination permitted by Rule 26(b) and which are in his possession, custody, or control.'

On September 26, 1958, Naola Craddock, plaintiff in the action in the Superior Court, suffered personal injuries resulting from the alleged negligence of Earl Watts, while driving a truck as an employee of the defendants, Circle K. Tire Exchange Company, the real party in interest.

On October 8, 1958, while the plaintiff, Naola Craddock, was still in the hospital as a result of said injuries, her statement was taken by an insurance investigator representing the defendant's insurer. This statement was taken before the plaintiff had retained counsel and over two months prior to the time suit was instituted by the plaintiff, Naola Craddock, seeking to recover damages for her injuries.

Thereafter, on March 4, 1959, plaintiff moved the trial court pursuant to Rule 34, supra, for an order permitting the inspection of said statement which was granted and the defendants then commenced the present proceedings in this court.

The motion for inspection under Rule 34, supra, was supported by an affidavit of one of the attorneys for the plaintiff, averring 'That the said plaintiff recalls making such statements but does not recollect what these statements contained * * *' and '* * * That these statements related to the facts of the accident * * * that no copy of these statements has ever been given to the plaintiff * * *.'

The defendants opposed the motion to inspect the statement of the plaintiff, in the trial court and in the instant proceeding, upon the ground that the plaintiff had not shown good cause as required by Rule 34, supra, and that the statement contained admissions of the plaintiff and could be used by the defendant for the purpose of impeachment and that the only purpose of inspection would be to accommodate the testimony of the plaintiff to the statement.

The order is not appealable and prohibition is the proper remedy. Dean v. Superior Court, 84 Ariz. 104, 324 P.2d 764.

Rule 34, supra, authorizes the trial court to require the production of the statement given by the plaintiff on 'showing good cause therefor.' What constitutes 'good cause' depends to a considerable degree upon the particular circumstances of each case and upon considerations of practical convenience; and it is for this reason that other decisions dealing with the problem of 'good cause' under this Rule can only be of limited assistance. Dean v. Superior Court, 84 Ariz. 104, 324 P.2d 764.

We recognized in the Dean case, supra, that the modern trend has been to greatly liberalize the Rules pertaining to discovery and this is particularly true on the question of the right of a party to the discovery of a statement given by himself to an adverse party, 27 C.J.S. Discovery § 71(8); See Annotation 166 A.L.R. 1429, at page 1447; however, such a liberal trend does not mean that a showing of 'good cause' is no longer necessary or that such a motion to produce a party's own statement should be automatically granted, and we agree with the statement contained in Martin v. Capital Transit Co., 83 U.S.App.D.C. D.C. 239, 170 F.2d 811, 812, '* * * The rule contemplates an exercise of judgment by the court, not a mere automatic granting of a motion. * * *' In this regard it must be noted that the more recent cases require even less of a showing of 'good cause' where a party is seeking discovery of his own statement given to an adverse party or his agent. Vol. 4, Moore's Federal Practice, 2nd Ed., page 2454; Mallon v. Ginsberg, 12 Misc.2d 1017, 173 N.Y.S.2d 412.

We are of the opinion that the affidavit filed by the plaintiff in support of the motion for the production of the statement sufficiently establishes 'good cause' under the circumstances of this action; Brown v. New York, New Haven & Hartford R. Co., D.C. 17 F.R.D. 324 and that the trial court did not abuse its discretion in ordering the production of such statement.

We have the situation where approximately twelve days after the plaintiff had sustained injuries so serious that she was still a patient at the hospital, a claims investigator of the defendant took her statement and did not furnish her with a copy and at the time of taking the statement the plaintiff was not represented by counsel and in fact suit was not filed until some two months afterwards. The language of the Supreme Court of California, in Dowell v. Superior Court, 47 Cal.2d 483, 304 P.2d 1009, 1011, in passing upon a similar motion is apropos:

'* * * It is to be assumed that the claims investigator was skillful in his undertaking. It may also be assumed that it would be to the advantage of the company to obtain from a possible claimant and account from his standpoint of the facts surrounding the...