Welsh v. Gibbons

• Decision Date: 21 January 1948
• Docket Number: 16034.
• Citation: 46 S.E.2d 147,211 S.C. 516
• Parties: WELSH v. GIBBONS.
• Court: South Carolina Supreme Court

46 S.E.2d 147

211 S.C. 516

WELSH v. GIBBONS.

No. 16034.

Supreme Court of South Carolina

January 21, 1948

J. Arthur Knight, of Chesterfield, for appellant.

James E. Leppard, of Chesterfield, for respondents.

OXNER Justice.

This is an action to recover damages on account of illness alleged to have resulted from drinking a small portion of a bottle of coca-cola which contained 'sodium hydroxide, potassium hydroxide, caustic soda or concentrated lye, or some other foreign, poisonous and deleterious substance.' Plaintiff alleged that said coca-cola was bottled and sold by the defendant and that the presence of said harmful, poisonous and deleterious matter was due to his negligence and wilfulness. The defendant denied the material allegations of the complaint. The trial resulted in a verdict for the plaintiff in the sum of $700.

After issues were joined and long prior to the trial, defendant sought permission of plaintiff to have a chemical analysis made of the contents of the coca-cola bottle which was then in the possession of plaintiff's attorney. The request was refused. Thereafter defendant served notice of a motion to require plaintiff to deposit said bottle with the Clerk of Court so as to permit a chemical analysis to be made and filed with the Clerk for use at the trial of the cause. This motion was heard by Honorable J. Woodrow Lewis, Resident Judge of the Fourth Circuit, who denied the motion upon the sole ground that the Court was not empowered to grant the relief sought. The first question to be determined on this appeal is the correctness of the order of Judge Lewis.

The privilege before trial of inspecting an article involved in an action and in possession of the other party was not accorded a litigant by the early common law courts of England. 'The common law laid down as a maxim nemo tenetur armare adversarium suum contra se, and, in furtherance of this principle, it generally allowed litigant parties to conceal from each other, up to the time of trial the evidence on which they meant to rely, and would not compel either of them to supply the other with any evidence parol or otherwise, to assist him in the conduct of his cause.' Best on Evidence (International Ed. 1893-94), Section 624. This rule frequently resulted in a miscarriage of justice and hence there arose the equitable remedy of bills of discovery to assist the prosecution or defense of an action pending in the law court. The power to enforce discovery was one of the original and inherent powers of courts of equity and, according to the principles and practice of such courts, a bill could be filed for the discovery of facts in the knowledge of an adverse party, or of deeds or writings, or other things in his custody and power. The distinction between the practice which prevailed in actions at law and that which obtained in chancery cases is stated as follows in Wigmore on Evidence, 2d Ed., Volume 3, Section 1862: 'So far as concerned chattels and premises in his possession or control, the adversary in common-law actions, like the true gamester that the law encouraged him to be, held safely the trump cards of the situation, free from any legal liability of disclosure before trial; in this respect there was not recognized even the limited right of inspection (ante, Sec. 1858) which after the days of Lord Mansfield had been conceded for documentary evidence. But in chancery, under the same wholesome principle and practice by which bills of discovery were allowed for ascertaining the opponent's testimony and the documents in his possession (ante, Secs. 1856, 1857), the inspection of chattels and premises in his possession or control was obtainable wherever fairness seemed to demand it.'

The production and inspection of books and papers in the hands of an adverse party, both in suits at law and in equity, are now obtained and regulated by statute, not only in England, but very generally in this country. Statutes have also been enacted in a number of states requiring a plaintiff in a personal injury action to submit to a physical examination in advance of the trial with the view of enabling the physicians to testify on the trial as to the nature and extent of the alleged injury and in many states authorizing a party to inspect any article of property in the possession of his adversary which may be involved in the action. There is quite a diversity of opinion as to the power of common law courts, in the absence of statute, to authorize such a physical examination or to provide for the examination or inspection of premises or chattels, the condition of which is involved in the pending litigation. It is held in many jurisdictions that the courts have the inherent power to do so and that an enabling statute is not necessary. Annotations on the subject of the power of the Court in negligence cases to provide for examination of premises or chattels the condition of which is involved in litigation will be found in L.R.A.1917E, page 838 and 33 A.L.R., page 16. An examination of the cases referred to in these annotations discloses that in a number of them the examination was ordered in equity cases or was sought by a bill of discovery in aid of an action at law. A more recent case is that of Driver v. F. W. Woolworth Co., 58 Ohio App. 299, 16 N.E.2d 548. The plaintiff there brought an action to recover damages alleged to have been sustained from the use of a cosmetic sold by defendant which plaintiff claimed contained poisonous, harmful and injurious ingredients. The plaintiff was ordered by the Court to produce the tube containing said cosmetic in order to permit the contents to be analyzed by a reputable chemist, but the power of the Court to do so was sustained under a statute.

Section 673, Chapter 38, of the 1942 Code authorizes the Court to order an inspection of any books, papers and documents in the possession of a party to a pending action. Section 674, which is the first section of Chapter 39, provides: 'No action to obtain discovery under oath, in aid of the prosecution or defense of another action, shall be allowed, nor shall any examination of a party be had on behalf of the adverse party, except in the manner prescribed by this chapter.' The sections which follow authorize the examination of a party at or before trial at the instance of the adverse party and outline the procedure to be followed in obtaining such examination.

In Easler v. Southern Railway Co., 60 S.C. 117, 38 S.E. 258, 260, the defendant, prior to the trial, made a motion for an order requiring the plaintiff to allow a personal examination to be made of him by a physician so that such physician could testify as a witness in the cause in behalf of the defendant. The Court below refused the motion on the ground that it was without power to grant such an order which this Court (Mr. Justice Jones dissenting) sustained. After reviewing Chapter 39 of the Code, the Court said: 'The remedy provided by the Code for taking testimony before a trial of the parties to the action, in behalf of the adverse party, is exclusive, and supersedes all remedies existing at the time of its adoption, as hereinbefore stated. There is no statutory provision in this state empowering the court to order the physical examination of such a party.' In Best v. Columbia Street Railway, Light and Power Co., 85 S.C. 422, 67 S.E. 1, 3, which was an action to recover damages for personal injuries sustained, the question again arose as to whether the Circuit Court had the power to require a plaintiff suing for personal injury to submit to a physical examination by defendant's physicians or by physicians appointed by the Court. The question was answered in the negative under the authority of Easler v. Southern Railroad Co., supra. Mr. Chief Justice Jones, who as an Associate Justice dissented in the Easler case, in concurring stated that he was prepared to vote to overrule the Easler case 'as unsound and contrary to the weight of reason and authority' but felt that until overruled he was bound to follow it. Mr. Justice Woods dissented and expressed the view that the Court had the power to order such a physical examination even though there was no statute granting it. The view adopted by a majority of the Court in these cases has been since followed and the question in this jurisdiction may now be regarded as settled. Brackett v. Southern Railway Co., 88 S.C. 447, 70 S.E. 1026, Ann.Cas.1912C, 1212; Deery v. Jefferson Standard Life Insurance Co., 174 S.C. 63, 176 S.E. 876.

There is no provision in our statutes authorizing the Court to require a party in a pending case to produce and permit his adversary to inspect an article or chattel in his possession or under his control. The power to compel a party to submit to an examination of his person before trial is of a similar nature to that invoked in the present case, and if, as held by this Court in the cases...